Robert De Arcos v. Clark Ducart

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT DE ARCOS, No. 15-56171
Petitioner-Appellant, D.C. No.
2:13-cv-00322-DMG-AGR
v.
CLARK E. DUCART, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted July 13, 2018**
Pasadena, California
Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE,*** District
Judge.
Petitioner Robert De Arcos appeals the district court’s denial of his habeas
corpus petition. A jury found De Arcos guilty of second degree murder and found
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
various firearm and gang enhancements to be true. De Arcos contends that the
California Court of Appeal unreasonably applied Jackson v. Virginia, 443 U.S. 307
(1979), because the evidence was insufficient to prove his guilt beyond a
reasonable doubt. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253,
and we affirm.
“[W]e review de novo the district court’s decision to grant or deny a petition
for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.
2004). “Because [De Arcos] filed his federal habeas petition after April 24, 1996,
his petition is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (‘AEDPA’), 28 U.S.C. § 2254.” Cheney v. Washington, 614 F.3d 987, 993
(9th Cir. 2010). Under AEDPA, we must deny habeas relief with respect to any
claim adjudicated on the merits in a state court proceeding unless the proceeding
“(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts….” 28 U.S.C. § 2254(d).
When considering a claim based on insufficiency of the evidence, we view
the evidence in the light most favorable to the prosecution. Long v. Johnson, 736
F.3d 891, 896 (9th Cir. 2013) (citation omitted). “To grant habeas relief, we must
conclude that the state court’s determination that a rational jury could have found
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that there was sufficient evidence of guilt…was objectively unreasonable.” Id.
(internal quotations and citation omitted).
Viewing the evidence in the light most favorable to the prosecution, the
California Court of Appeal reasonably held that a rational jury could have found,
beyond a reasonable doubt, that De Arcos committed second degree murder as an
aider and abettor.1 A rational jury could have found that (1) De Arcos was one of
the two shooters, based upon numerous witnesses who identified him as a shooter;
(2) De Arcos had a motive to kill Victor Nunez, based upon the expert testimony
of Detective Joseph Fender; (3) De Arcos fled after the shooting, based upon the
testimony of Deputy Miguel Llaury; and (4) De Arcos evidenced a consciousness
of guilt for the murder, based upon recorded conversations between him and his
girlfriend, Lorena. Therefore, a rational jury could find that De Arcos knew of the
fatal shooter’s unlawful purpose to kill Victor, and with the intent of committing or
1
In evaluating a conviction in state court, we refer to the substantive
elements of the crime as defined by state law. Jackson, 443 U.S. at 324 n.16.
“Second degree murder is defined as the unlawful killing of a human being with
malice aforethought, but without the additional elements—i.e., willfulness,
premeditation, and deliberation—that would support a conviction of first
degree murder.” People v. Nieto Benitez, 840 P.2d 969, 974 (Cal. 1992) (citations
omitted). Malice aforethought may be expressed or implied. Id. at 975 (citing Cal.
Penal Code § 188). Express malice is an intent to kill; “[m]alice is implied when a
person willfully does an act, the natural and probable consequences of which are
dangerous to human life, and the person knowingly acts with conscious disregard
for the danger to life that the act poses.” People v. Gonzalez, 278 P.3d 1242, 1251
(Cal. 2012).
3 15-56171
facilitating the murder, aided in the commission of the crime. See People v.
Prettyman, 14 Cal. 4th 248, 259 (1996).
We reject De Arcos’s argument that we should resolve conflicting evidence
in favor of his innocence. See Jackson, 443 U.S. at 326 (“[A] federal habeas corpus
court faced with a record of historical facts that supports conflicting inferences
must presume – even if it does not affirmatively appear in the record – that the trier
of fact resolved any such conflicts in favor of the prosecution, and must defer to
that resolution.”); see also United States v. Stewart, 420 F.3d 1007, 1015 (9th Cir.
2005) (explaining that in reviewing sufficiency of the evidence, “[w]e must respect
the province of the jury to ascertain the credibility of the witnesses, resolve
evidentiary conflicts, and draw reasonable inferences from proven facts, by
assuming that the jury resolved all such matters in a manner which supports the
verdict.” (internal quotations and citation omitted)).
Finally, we reject De Arcos’s argument that the jury made an inconsistent
determination when it found that De Arcos personally used, and personally and
intentionally discharged, a firearm, but that De Arcos did not personally and
intentionally discharge a firearm which proximately caused great bodily and injury
death to Victor Nunez. The evidence is sufficient to sustain these findings, and the
findings are not inconsistent because the shell casing evidence showed two
shooters and that Victor had been shot three times.
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Viewing the evidence in the light most favorable to the prosecution, the
California Court of Appeal’s determination that a rational jury could have found
that there was sufficient evidence of De Arcos’s guilt was not objectively
unreasonable. The district court properly concluded that De Arcos was not entitled
to habeas relief.
AFFIRMED.
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