FILED
NOT FOR PUBLICATION JUL 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID GABINO CHAVARRIA, No. 11-56540
Petitioner - Appellant, D.C. No. 2:07-cv-05857-DOC-
RCF
v.
TIMOTHY E. BUSBY, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted July 11, 2013**
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Petitioner David Chavarria, a California state prisoner, appeals from the
district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition
challenging his conviction for conspiracy to commit murder. He contends that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
there was insufficient evidence to support the specific-intent-to-kill and agreement
elements of the crime and that he is entitled to relief under 28 U.S.C. § 2254(d)(1)
because, in rejecting his sufficiency-of-the evidence arguments, the California
Court of Appeal unreasonably applied Jackson v. Virginia, 443 U.S. 307 (1979).
Reviewing with the “two layers of judicial deference” applicable to Jackson claims
in federal habeas proceedings, Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012)
(per curiam), we affirm.
The evidence at trial showed that co-defendant Damon Flores saw a rival
gang member, David Cabrera, in Dog Patch territory, armed himself with a
firearm, and then directed Misty Luna to drive him to Cabrera’s residence. On the
way there, Chavarria pulled his vehicle alongside Flores’s to have a conversation,
during which Flores told Chavarria that he knew where “that cheese sider lives”
and to “Follow me, Dog.” After the conversation, Flores led Chavarria to
Cabrera’s residence and a deadly gun battle ensued. During the shootout,
Cabrera’s neighbor saw multiple muzzle flashes and heard two distinct sounds of
gunfire coming from the intersection where Flores’s and Cabrera’s vehicles were
located. Although no gun was ever recovered from Chavarria, gunshot residue was
found in his vehicle and, during a jailhouse conversation recorded after his arrest,
Chavarria told his girlfriend to recover a bullet he had accidentally shot into his car
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because it was “from the same barrel.” Viewing this evidence “in the light most
favorable to the prosecution,” Jackson, 443 U.S. at 319, a rational jury could have
inferred that Chavarria and Flores discussed and agreed to kill Cabrera as
retaliation for entering Dog Patch territory and that Chavarria followed Flores to
assist with the attack.
Chavarria argues that the district court erred by relying on the theory that
Chavarria shot and killed Cabrera even though the trial court granted a judgment of
acquittal on the murder count. But, as the California Court of Appeal correctly
noted, whether or not there was sufficient evidence to prove that Chavarria fired
the fatal shot is irrelevant to the conspiracy conviction; the jury had to find beyond
a reasonable doubt only that Chavarria agreed and specifically intended to kill. See
People v. Swain, 909 P.2d 994, 996–97 (Cal. 1996). As discussed above, there was
sufficient evidence from which a rational jury could so conclude. Thus, the
California Court of Appeal’s conclusion that there was sufficient evidence to
convict Chavarria of conspiracy to commit murder did not involve an “objectively
unreasonable” application of Jackson. Juan H. v. Allen, 408 F.3d 1262, 1275 n.13
(9th Cir. 2005) (internal quotation marks omitted); see also Cavazos v. Smith, 132
S. Ct. 2, 6–8 (2011) (per curiam).
AFFIRMED.
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