JOSE ANGEL LEPE v. JOHN MERCHANT (2024)

ORDER DENYING HABEAS PETITION

Jose Angel Lepe petitions for a writ of habeas corpus under 28 U.S.C. § 2254 on the ground that his continued confinement pursuant to a state criminal conviction violates federal law. For the reasons that follow, the Court denies Lepe's petition.

BACKGROUND

In December 2013, while visiting his girlfriend Ariana Manzares and their baby daughter in Oakland, Lepe shot and killed Michael Stenger from his car when he saw Stenger approaching.¹ Prior to this shooting, Stenger had purportedly shot at Lepe in February 2012 at Lepe's home, making Lepe fearful that Stenger would try to kill him again. Though Lepe went to the hospital to treat his gunshot wounds after this alleged 2012 incident, Stenger was never arrested or prosecuted and no witnesses were located. Prior to his killing in 2013, Stenger occasionally lived at the apartment of Manzares, as the two were family friends, and Manzares had told Lepe that Stenger did not like him. Lepe claims that he shot and killed Stenger in 2013 because he feared his and his daughter's life. Several witnesses stated that Lepe had previously expressed this fear to them, and that Lepe purchased a handgun for protection three months after he was shot at by Stenger. Before arriving to Manzares's apartment on the day of Stenger's death, Lepe even told Manzares that he was apprehensive to come over because Stenger frequented the area.

Lepe had also been shot at in 2007 when men broke into his father's home, after which he was partially disabled from 2008–2011 and was diagnosed with PTSD in 2016. During the robbery, Lepe witnessed one of the assailants mistakenly kill another by shooting him in the head.

In March 2016, an Alameda County Superior Court jury found Lepe guilty of unlawful discharge of a firearm from a vehicle with the related enhancement for intentional discharge of a firearm causing great bodily injury or death. See Cal. Pen. Code § 12022.53. The jury, however, did not find Lepe guilty of first-degree murder. The prosecutor dropped a second-degree murder charge against Lepe after the jury was unable to return a verdict on this charge.

In May 2017, the state trial court sentenced Lepe to a total of 30 years to life in prison, including 5 years for the unlawful discharge of a firearm from a vehicle and 25 years to life for the firearm enhancement. Lepe filed a timely appeal in June 2017. The California Court of Appeal for the First District affirmed Lepe's conviction in March 2019 but remanded the case for resentencing. Based on a change in the law since the time of Lepe's sentencing, the Court of Appeal ordered the superior court to consider whether to strike the firearm enhancement “in the interest of justice.”²

In its order rejecting Lepe's constitutional argument that his lengthy sentence constituted cruel and unusual punishment, the appellate court noted that “pertinent authority establishes that a sentence enhancement of 25 years to life is not disproportionate to a violation of Penal Code section 12022.53; the Legislature has determined that a significant increase in punishment is necessary and appropriate to protect citizens and deter violent crime.” People v. Lepe, Case No. A151672 (Cal. Ct. App. Mar. 13, 2019) (cleaned up). The Court of Appeal went on to affirm the “lower court's rejection of [Lepe's] claim that imposing this sentence on him in particular would shock the conscience.” Id.

Lepe then filed a petition for review in the California Supreme Court in April 2019, which was denied. At the resentencing hearing in October 2020, the trial court declined to strike the firearm enhancement. The California Court of Appeal affirmed the judgment in August 2021.³ The California Supreme Court again denied review.

After Lepe's resentencing, the California legislature passed S.B. 81, which provided additional guidance on when sentencing courts should strike sentencing enhancements. The statute, which applies to all sentencing decisions made after January 1, 2022, requires a trial court exercising enhancement discretion to consider mitigating circumstances such as if “enhancement could result in a sentence of over 20 years,” if the “offense is connected to mental illness,” and if the “offense is connected to prior victimization.” Cal. Pen. Code § 1385(c)(2)(C)–(E). If the first factor (a sentence over 20 years) is present, the law provides that “the enhancement shall be dismissed.” Cal. Pen. Code § 1385(c)(2)(C). The Legislature stated that the “presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” Id.

Lepe filed his habeas petition in this Court in December 2022, arguing that he was denied his rights under the Eighth and Fourteenth Amendments because the length of the sentence resulting from application of the firearm enhancement is unconstitutionally excessive.

LEGAL STANDARDS

If a claim has been adjudicated on the merits in state court, a federal habeas court may not grant relief to a person in custody pursuant to a state court judgment unless the state court's adjudication of the claim (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 in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

A state court decision is “contrary to” clearly established Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court cases or “if the state court confronts a set of facts that are materially indistinguishable from” a Supreme Court decision but “nevertheless arrives at a result different from” that precedent. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state court unreasonably applies clearly established federal law when “the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[F]or a state court's decision to be an unreasonable application of [the Supreme] Court's case law, the ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017).

When a state supreme court simply affirms or denies a lower court's judgment in state habeas proceedings, “the federal [habeas] court should ‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 584 U.S. 122, 125 (2018). In short, “[w]hen the state's highest court does not provide reasoning for its decision,” a federal habeas court should, for the purposes of AEDPA, review the last state court decision that explains its rationale. Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020).⁴

“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

In Eighth Amendment challenges to the length of a criminal sentence, “the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive.” Graham v. Florida, 560 U.S. 48, 59 (2010). The Eighth Amendment contains a “narrow proportionality principle” that “does not require strict proportionality between crime and sentence,” but rather “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 997, 1000–01 (1991). In determining whether a sentence is grossly disproportionate to a particular defendant's crime, “[a] court must begin by comparing the gravity of the offense and the severity of the sentence.” Graham, 560 U.S. at 60. “[I]n the rare case in which [this] threshold comparison ․ leads to an inference of gross disproportionality, the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id. at 60. “If this comparative analysis validate[s] an initial judgment that [the] sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.

ANALYSIS

Lepe argues that the length of his sentence amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Specifically, he argues that there was no evidence of premeditation (i.e., he was not convicted of first-degree murder), that he had minimal prior criminal history, that he was traumatized by Stenger shooting at him in 2012, and that he had PTSD from past violent incidents. Lepe further contends that the arbitrary nature of his sentence is made clear by California legislation passed after his resentencing, which (if it had applied retroactively) would require striking his firearm enhancement because of various mitigating circumstances including his PTSD diagnosis after the violence at his father's home in 2007, his trauma from Stenger's prior shooting, and the enhancement resulting in a sentence of more than 20 years. Cal. Pen. Code § 1385(c)(2)(C)–(E).

The Supreme Court has held that a penalty “should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily.” Furman v. Georgia, 408 U.S. 238, 249 (1972). In support of his claim that his sentence was arbitrarily imposed, Lepe cites the legislative history of Section 1385 suggesting that state legislators were concerned about the arbitrary application of sentencing enhancements, especially given that longer enhancements were not shown to effectively serve as stronger deterrents. According to Lepe, the Legislature considered “research show[ing] that under the prior statutory scheme, judges chose not to impose sentencing enhancements in approximately 20 percent of cases and to impose sentencing enhancements in about 80 percent of cases.” Dkt. No. 1, at 22. Lepe additionally argues that his sentence enhancement of 25 years is unusual and arbitrary because the underlying general intent crime of discharging a firearm from a vehicle only carries a sentence of 5 years while his enhanced sentence exceeds the sentences applied to convictions for first- or second-degree murder, both of which impose higher mens rea standards. Dkt. No. 1, at 28 (noting that in California, first-degree murder carries a sentence of 25 years to life and second-degree murder carries a sentence of 15 years to life).

The government responds that the California Court of Appeal reasonably rejected Lepe's claim that his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment because the sentence was not grossly disproportional to his crime. Dkt. No. 12-1, at 11. In the government's view, the Supreme Court has recognized that state legislatures have “broad discretion to fashion a sentence that fits within the scope of the proportionality principle.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (affirming defendant's sentence of 50 years to life after he was convicted of two counts of petty theft with a prior theft-related conviction). The government argues that Lepe's offenses are far more serious than those at issue in Andrade and that Lepe's 30-year sentence therefore is not unconstitutionally excessive or contrary to federal law.

Lepe counters that Andrade is inapposite because the Court based its sentence on California's three strikes law and the defendant's felony recidivism, while such recurring criminality is not at issue here. Dkt. No. 23, at 9. He also contends that the government improperly relies on the harm caused by his offense instead of his mental state (given that he was convicted under a general intent theory).

As noted already, a federal habeas court can only grant relief if the applicable state court decision (at the time it is made) is “contrary to” relevant Supreme Court precedent or otherwise an “unreasonable application” of clearly established Supreme Court law. See 28 U.S.C. § 2254(d). While it is undoubtedly unfair that Lepe almost certainly would not have been handed a 25-year firearm enhancement had Section 1385 been the law at the time of his initial sentencing, the finding AEDPA requires before this Court can grant Lepe's requested relief cannot be made.

Lepe's petition faces two substantial hurdles. First, even when exercising de novo review of a state court sentence, a federal court can grant habeas relief under the Eight Amendment's gross disproportionality principle “only in the exceedingly rare” and “extreme case.” Andrade, 538 U.S. at 72–73. In this case, however, Lepe must not only demonstrate that his petition presents such an extreme and exceedingly rare case, but also establish that the state court's rejection of his argument involved an unreasonable application of clearly established Supreme Court precedent.⁵

Lepe cannot do so because the Supreme Court has upheld lengthier sentences for lesser crimes under AEDPA, including most notably the 50-year sentence for petty theft upheld in Andrade. Although Lepe identifies various distinctions between his case and Andrade, such as Andrade's significant recidivism, those distinctions are insufficient to demonstrate that the state court unreasonably applied the rule established in Andrade, particularly given that the harm caused by Lepe's crime was significantly greater than the harm in Andrade. The state appellate court's determination that Lepe's 30-year sentence for killing Stenger (under a general intent theory) was “not disproportionate” was therefore not an unreasonable application of the Supreme Court precedent requiring a comparison of the “gravity of the offense and the severity of the sentence.” Graham, 560 U.S. at 60. Without a showing that the state court made a decision that was contrary to or an unreasonable application of applicable Supreme Court precedent, this Court cannot grant Lepe habeas relief. See Williams, 529 U.S. at 405–06.

While this outcome might seem unjust, particularly because the California legislature has since acknowledged the ways in which sentence enhancements are differentially applied and revised its sentencing law in a manner that would likely have required striking Lepe's firearm enhancement, denial of habeas relief here is mandated by AEDPA. Only a legislative or executive branch response can address any injustice in Lepe's sentencing.

CONCLUSION

For the foregoing reasons, the Court dismisses Lepe's habeas petition and orders the Clerk to close the file.

IT IS SO ORDERED.

FOOTNOTES

1.   The facts here are drawn from the petition. Lepe was previously convicted of misdemeanor domestic violence in April 2011.

2.   S.B. 620, passed by the California legislature in June 2017, permitted sentencing courts to strike the otherwise mandatory firearm enhancement in Section 12022.53 “in the interest of justice.”

3.   Because the Court of Appeal had already rejected Lepe's argument that his sentence constituted cruel and unusual punishment, he did not renew that argument in his second appeal.

4.   Because the California Supreme Court simply denied Lepe's initial petition for review, this Court reviews the Court of Appeal's first decision explaining why it found Lepe's sentence constitutional. See People v. Lepe, Case No. A151672 (Cal. Ct. App. Mar. 13, 2019) (holding that Lepe's sentence does not constitute cruel and unusual punishment).

5.   Because Lepe does not identify any manner in which the standards applied by the state court departed from the Supreme Court's applicable precedents or any “materially indistinguishable” Supreme Court case that reached a different outcome, he cannot demonstrate an entitlement to relief under AEDPA's “contrary to” prong.

P. Casey Pitts United States District Judge