Joshua Gonzales v. Connie Gipson , 659 F. App'x 400 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA JOEL ZAMORA GONZALES, No. 13-56498
Petitioner - Appellant, D.C. No. 5:12-cv-00862-BRO-
PLA
v.
CONNIE GIPSON, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted December 7, 2015
Pasadena, California
Before: PREGERSON, D.W. NELSON, and CALLAHAN, Circuit Judges.
Joshua Joel Zamora Gonzales appeals the denial of his federal habeas
petition, challenging his conviction for three counts of attempted murder and one
count of shooting from a motor vehicle. We have jurisdiction pursuant to 28
U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err in denying Gonzales’s petition. Viewed in a
light most favorable to the prosecution, the evidence presented at trial allowed the
jury to infer that Gonzales was not only present, but that he was the shooter. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The evidence presented at trial reflected that: (1) Gonzales and two other
individuals were in a car in the area at the time of the shooting; (2) Gonzales was
seated in the backseat of the car he was in; (3) one person shot from the back seat
of the car in question and a second person shot from over the hood; (4) two
different caliber shell casings were found at the scene; (5) Gonzales had been
wearing a baseball cap featuring the Pirates “P” logo in support of the Playboyz
gang that evening; (6) a person in the backseat of the car in question was wearing a
baseball cap; (7) there was a dispute at the party that may have been gang-related,
and Gonzales was “mingled” in with its participants; (8) Gonzales exchanged
words with men on the street before the shooting occurred; (9) someone asked one
of the victims for his gang affiliation; and (10) Gonzales tested positive for gunshot
residue during his interview with police the next day.
Though the evidence amassed to convict Gonzales was largely
circumstantial, such evidence “can be used to prove any fact, including facts from
which another fact is to be inferred, and is not to be distinguished from testimonial
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evidence insofar as the jury’s fact-finding function is concerned.” Payne v. Borg,
982 F.2d 335, 339 (9th Cir. 1993). While we agree with the magistrate judge that
the evidence in this case is “far from overwhelming,” “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of that decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). The district court did not err in denying the petition.
AFFIRMED.
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Gonzales v. Gipson, No. 13-56498 FILED
Pregerson, J., dissenting:
AUG 11 2016
I dissent. Joshua was convicted for a crime that occurred whenMOLLY
he was 17 CLERK
C. DWYER,
U.S. COURT OF APPEALS
years old. He was investigated by a detective who, during preliminary proceedings,
twice put incriminating words into Joshua’s mouth, words he never spoke. Joshua
was convicted based on evidence that, as the magistrate judge noted, was “far from
overwhelming.” In fact, two witnesses explicitly stated, one with complete
certainty, that Joshua was not the shooter.
Joshua was sentenced to a staggering term of 86 years and 8 months to life,
including three 25-year mandatory gang enhancements. Because Joshua was just
17 when the crime was committed, California law now entitles him to a youth
offender parole hearing no later than his twenty-fifth year of incarceration. See Cal.
Penal Code § 3051(b)(3); People v. Franklin, 63 Cal. 4th 261, 268 (2016). This
provides little solace for a young man facing, what very well could be, a life
behind bars for a crime in which no one was killed.
For these reasons, I dissent.
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