Lopez v. Johnson

Background

Joevon Lopez filed a pro se petition—a petition filed without a lawyer—under 28 U.S.C. § 2254, asking the federal court to grant relief from a state-court judgment. An Alameda County jury convicted him in 2017 of murder and possession of a firearm by a felon. The jury also found true an enhancement for personally and intentionally discharging a firearm, but found not true an enhancement for personally and intentionally discharging a firearm causing great bodily injury or death. The state trial court sentenced Lopez to 45 years to life in prison.

The California Court of Appeal affirmed the conviction, and the California Supreme Court denied review. In the federal case, the court identified five cognizable issues for review: failure to instruct on aiding and abetting; insufficient evidence for first-degree murder under felony-murder and premeditation theories; admission of time-stamped photographs obtained from a cellphone extraction; and ineffective assistance of counsel for failing to object to those photographs. The court had previously found Lopez’s remaining claims not cognizable. Lopez also requested an evidentiary hearing.

Aiding-and-abetting instruction

The court denied relief on claim 1. Lopez argued that the trial court violated due process by failing to instruct the jury on aiding and abetting. The federal court agreed with the state appellate court that the jury had been given a legally valid theory of first-degree murder. The jury’s finding that a firearm-use enhancement was not true did not invalidate the murder conviction, because inconsistent findings on an enhancement did not establish that the jury relied on an invalid theory.

The court also relied on the evidence supporting felony murder and concluded that Lopez had not shown that the missing instruction caused a constitutional violation or had a substantial and injurious effect on the verdict. The state appellate court’s decision was therefore not contrary to, or an unreasonable application of, clearly established United States Supreme Court law.

Sufficiency of the evidence

The court denied relief on claims 2 and 3. Under the federal standard for reviewing evidence supporting a state conviction, the question was whether, viewing the evidence in the prosecution’s favor, any rational juror could have found the required elements beyond a reasonable doubt, and whether the state court’s decision applying that standard was objectively unreasonable.

For claim 3, Lopez argued that the evidence did not support felony murder because it did not establish robbery or attempted robbery. The court held that the state appellate court reasonably relied on circumstantial evidence: Lopez and another person approached the ice cream truck together while carrying concealed weapons, received items from the driver, drew their weapons, fired as the truck drove away, and caused the driver’s death. The federal court concluded that a rational juror could infer an intent to rob and an act beyond mere preparation toward robbery. It denied habeas relief on claim 3.

For claim 2, Lopez challenged the evidence supporting premeditated and deliberate first-degree murder. The state appellate court had not decided whether the evidence was sufficient on that theory because it found sufficient evidence for felony murder and no affirmative indication that the jury relied on premeditation rather than felony murder. The federal court held that this approach was reasonable and denied relief on claim 2.

Cellphone photographs and counsel’s performance

The court denied relief on claim 6a, concerning time-stamped photographs extracted from a cellphone. The state appellate court had found that Lopez forfeited the issue because his trial lawyer did not object. The federal court treated that state procedural ruling as an independent and adequate ground that ordinarily barred federal review. It nevertheless also considered the merits.

The court concluded that the photographs and automatically generated time information were not hearsay under the state court’s analysis. It further held that admission of the photographs did not make the trial fundamentally unfair. A photograph showed Lopez at the scene approximately eight minutes before the incident, and six witnesses also placed him at the scene, making the photographs cumulative. The court additionally found no evidence that the cellphone data had been manipulated and held that any error was harmless.

The court denied relief on claim 6b, Lopez’s ineffective-assistance claim. Applying the rule from Strickland v. Washington, which requires proof that counsel performed unreasonably and that the error likely affected the result, the court held that counsel was not ineffective for failing to make an objection that would have lacked merit. The court also concluded that, even if the photographs had been excluded, the other evidence meant there was no reasonable probability of a different verdict.

Disposition

The court denied Lopez’s request for an evidentiary hearing, denied the petition for a writ of habeas corpus, and denied a certificate of appealability. It directed the clerk to enter judgment in favor of R. C. Johnson and close the file. The court’s order was signed by Judge Jon S. Tigar and dated March 13, 2023.