ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment shall be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner, counsel for Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On August 1, 2016, Petitioner, represented by counsel, filed: (1) a form "Petition for Writ of Habeas Corpus By a Person in State Custody"; and (2) a "Supplemental Petition for Writ of Habeas Corpus ("Supplemental Petition"). These documents together comprised the Petition. The Petition alleged four grounds for relief:

1. Petitioner's conviction assertedly was obtained by means of identification procedures that allegedly were unconstitutionally suggestive; trial and appellate counsel assertedly rendered ineffective assistance by failing to raise this issue (Ground One);

2. The evidence allegedly was insufficient to support Petitioner's conviction under the natural and probable consequences theory of aiding and abetting (Ground Two);

3. The trial court allegedly erred by failing to instruct the jury on the lesser included offense of voluntary manslaughter; Petitioner's trial counsel allegedly rendered ineffective assistance by failing to request such an instruction (Ground Three); and

4. The trial court allegedly erred by failing to include voluntary manslaughter in the natural and probable consequences aiding and abetting instruction; Petitioner's trial counsel allegedly erred by failing to request such an instruction (Ground Four).

Respondent filed an Answer on August 19, 2016, alleging that Grounds One and Three were unexhausted. Petitioner filed a Reply on September 1, 2016, stating that in the event the Court found Ground One to be unexhausted, Petitioner would "seek leave to stay this action while he exhaust[ed] the claim in state court."

On September 30, 2016, the Court issued an "Order re Exhaustion," ruling that: (1) Ground One of the Petition was unexhausted; and (2) Ground Three, while unclear and appearing at least partially to duplicate Ground Four: (a) appeared to be based on a factual mistake to the extent Petitioner alleged that the trial court failed to give a heat-of-passion voluntary manslaughter instruction; and (b) was unexhausted to the extent Petitioner alleged that the trial court failed to give an unreasonable self-defense voluntary manslaughter instruction. The Court ordered Petitioner to file, within thirty (30) days of the date of the Order: (1) a document stating Petitioner's intent to delete and abandon his unexhausted claims; (2) a document requesting dismissal of this entire proceeding without prejudice; or (3) a motion for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) ("Rhines") and/or Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) ("Kelly"). The Court further ordered that any document or motion filed as an election of option (1) or option (3) should clarify the claim intended to be alleged in Ground Three.

On October 27, 2016, Petitioner filed "Plaintiff [sic] Gabriel Aaron Gonzalez's Application for Stay and Abeyance, etc." ("Application"). The Application sought a stay of the Petition pursuant to Rhines and Kelly in order to exhaust Ground One. The Application also purported to clarify Ground Three by stating that Ground Four alleged that the trial court should have included voluntary manslaughter as an alternative to murder in the natural and probable consequences jury instruction, while Ground Three assertedly was "broader" and alleged that the trial court should have given a sua sponte instruction on the lesser included offense of voluntary manslaughter.

Respondent filed an "Opposition to Application for Stay and Abeyance, etc." on December 12, 2016. Petitioner filed "Plaintiff [sic] Gabriel Aaron Gonzalez's Reply, etc." on December 16, 2016.

On March 26, 2017, the Court issued an "Order, etc.": (1) denying the Application for a Stay; (2) dismissing the instructional error claims alleged in Ground Three with prejudice; and (3) ordering Petitioner to file, within thirty (30) days of the date of the Order, either: (1) a document stating Petitioner's intent to delete and abandon his unexhausted claims; or (2) a document requesting dismissal of all remaining claims without prejudice.

On April 17, 2017, Petitioner filed "Petitioner Gabriel Aaron Gonzalez's Notice of Intent to Delete and Abandon Unexhausted Claims," asserting Petitioner's intent to delete his unexhausted claims. On April 18, 2017, the Court ordered Respondent to file a Supplemental Answer addressing Petitioner's remaining claims and granting Petitioner leave to file a Supplemental Reply. On May 16, 2017, Respondent filed a Supplemental Answer. On May 29, 2017, Petitioner filed "Petitioner Gabriel Gonzalez's Response to Supplemental Answer, etc."

BACKGROUND

A jury found Petitioner and three co-defendants guilty of the second degree murder of Jose Ramos, and found true the allegations that Petitioner and his co-defendants committed the crime for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b) (Reporter's Transcript ["R.T."] 3311-15; Clerk's Transcript ["C.T."] 753-55, 761, 764, 768). The jury found true the allegation that one of Petitioner's co-defendants, Colt Sanchez, personally used a dangerous or deadly weapon, a knife, in the commission of the offense (R.T. 3311; C.T. 754). The jury acquitted all defendants of first degree murder (R.T. 3311-14; C.T. 756-58, 761, 764, 768).

The trial court found true the allegation that Petitioner had suffered a prior felony vandalism conviction based on a guilty plea and had admitted a section 186.22(b) gang allegation in that case (R.T. 3615-17; C.T. 857). Pursuant to California's "One Strike Law," California Penal Code section 1170.12(a)-(d), Petitioner received a sentence of thirty years to life (R.T. 3622-23; C.T. 472, 856-57, 863-64).

The California Court of Appeal affirmed (Respondent's Lodgment 1; see People v. Gonzalez, 2015 WL 2212367 (Cal. App. May 11, 2015). On August 19, 2015, California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 2, 3).

SUMMARY OF TRIAL EVIDENCE

The Court has conducted an independent review of the Reporter's Transcript and has confirmed that the following summary of the evidence in People v. Gonzalez, 2015 WL 2212367 (Cal. App. May 11, 2015) is fair and accurate. See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court observes that, in Petitioner's petition for review filed in the California Supreme Court, Petitioner adopted the Court of Appeal's factual summary "[u]nless otherwise noted" (see Respondent's Lodgment 2, p. 5; footnote omitted). The petition for review did not contain any notations disagreeing with the Court of Appeal's factual summary.

II. The Prosecution Evidence

A. The Stabbing Death of Jose Ramos

On January 23, 2011, Jose Ramos was stabbed to death while attending a birthday party for his girlfriend, Stephanie Chagolla, at her house in Pico Rivera. Ramos was 18 years old at the time and Chagolla was turning 19. The party was by invitation only for Chagolla's family and friends, many of whom had attended high school with her and Ramos. The party was held in the backyard of Chagolla's house, and guests entered through a metal gate that opened inward to the backyard. Approximately 20 to 40 guests attended the party; although a number of them were drinking alcohol, no one appeared to be drunk. At one point, the police asked that the volume of the music be lowered without ordering any of the guests to leave.

Shortly after midnight, Calleros, who had attended high school with Chagolla but had not been invited to the party, tried to gain entry through the gate. She was accompanied by a group of about seven to nine people, including Sanchez, [Petitioner], and Resendez, who were members of the Pico Nuevo gang. Chagolla did not know any of the men who were with Calleros and had not invited any Pico Nuevo gang members to her party. Calleros and her companions initially were met at the gate by Jesus Munoz and Richard Iso, two of Chagolla's guests. As Munoz was attempting to close the gate after letting in two of his friends, Calleros stopped him from doing so and repeatedly asked him to allow her group into the party. Munoz told her that it was not his party and he had to get permission because she had a lot of people with her. Munoz then made eye contact with Ramos, who walked over to the gate.

As Munoz turned to talk to Ramos, Calleros and her companions began walking through the partially open gate. Ramos and Munoz initially were going to let them stay, but as more people followed, they became concerned there were too many people "just pouring in." Ramos stepped in front of the group at the gate and held up his hand in a "stopping gesture." He calmly told them that it was not his party and only family and friends had been invited. He also said he "didn't want to start anything." Calleros began arguing with Ramos and insisted that her group be allowed into the party. At some point, Chagolla, who was watching the events at the gate, heard Calleros say, "This is my hood." Although Calleros said "don't push me" or "don't touch me," no one saw Ramos touch Calleros. The group with Calleros then rushed or pushed into the backyard and began fighting with Ramos and some of the other guests.

During the fight, Ramos was stabbed and fell to the ground. The fighting ended when an unidentified Hispanic man who was with the uninvited group of people pulled out a semi-automatic gun and waved it at the guests. He then fired several shots into the air, causing the guests to drop to the ground or run for cover. The uninvited group fled the backyard and entered one or two vehicles, including a dark sports utility vehicle, which sped away. After calling "911," Chagolla and her guests tried to render aid to Ramos, who was lying on the ground near the gate and struggling to breathe.

Ramos sustained a total of three stab wounds, one of which was fatal. He was stabbed in the shoulder, abdomen, and chest, and died from the stab wound to the chest, which pierced his heart. The fatal wound was four and three-quarter inches deep and went from front to back in a slightly downward angle. There were several abrasions to Ramos's face, but no defensive injuries to his hands or forearms.

B. The Eyewitness Identification Testimony

At trial, a number of eyewitnesses who were guests at the party testified about their observations of the fight that led to the fatal stabbing of Ramos and the extent of appellants' involvement in that fight.

1. Stephanie Chagolla

Chagolla testified that all of the men from the uninvited group of people participated in the fight, but she did not know about Calleros. One of the men involved in the fight was Sanchez, who had a visible "PN" tattoo on his neck. Another man who participated in the fight had an outline of a "PN" tattoo on the back of his head. Chagolla saw Sanchez and one other person fighting with Ramos at the same time, and Sanchez was holding a knife during the fight. Chagolla then saw Ramos suddenly fall forward onto the ground.

During an initial interview with the police shortly after the stabbing, Chagolla was hysterical and crying. She said that Ramos had been shot, but she could not describe any suspects.

Later that day, Chagolla told the police that she had seen a Hispanic man with a knife and gave a physical description, but did not mention any tattoos. A week after the stabbing, Chagolla was shown a photographic lineup that included Sanchez, but did not make an identification. In May 2011, Chagolla attended a live lineup that again included Sanchez. At that time, she indicated that Sanchez and one other individual looked like people who were involved in the fight. She wrote on the admonition form, "It's between two and three. I'm confused. There's something about them that seems familiar."

2. Jesus Munoz

Munoz testified that all four appellants were among the group that forced its way into the party, and that Sanchez was one of the men who fought with Ramos. The fight started when an unidentified man punched Ramos as he was standing by the gate. That man made a "jabbing" motion toward Ramos's stomach, and punched him twice before Ramos punched back. Sanchez then began hitting Ramos and making a thrusting motion toward his chest. Munoz did not see Sanchez with a weapon, but Ramos's shirt appeared to be sticking to Sanchez's hand as they fought. Munoz testified that most of the people in the uninvited group participated in the fight. When asked if anyone in the group did not participate, Munoz stated that he saw [Petitioner] standing there but not fighting.

The morning after the stabbing, Munoz provided the police with a description of the person who had stabbed Ramos, but did not indicate that he had any tattoos. Munoz also told the police that he knew one of the men who was present at the gate but did not come into the party as "Chino Man" from the Pico Nuevo gang.1 In February 2011, Munoz was shown several photographic lineups and identified each appellant, except Sanchez, as being present at the scene. In May 2011, Munoz attended a live lineup and identified Sanchez at that time. He wrote on the admonition form that Sanchez "was there for sure. Tattoos and face [are] what I remember clearly." At a preliminary hearing held in January 2012, Munoz could not recall anyone at the party fighting with [Petitioner] or Resendez.

3. Josue Salazar

Josue Salazar testified that he saw Calleros and two unidentified men force their way into the party and rush toward Ramos. Ramos stood in place and tried to block the group like an offensive lineman. One of the men then pushed Ramos, who responded by punching the man and knocking him down. Salazar did not see Calleros push or punch anyone during the fight. In October 2011, Salazar was shown several photographic lineups that included appellants, but was unable to identify anyone.

4. Jade Carrasco

Jade Carrasco testified that she saw Calleros rush through the gate with a group of people. Men in hoodies then began fighting with Ramos and other guests, but Carrasco could not tell who threw the first punch. She did not see Calleros hit anyone. In February 2011, Carrasco was shown a series of photographic lineups, and identified Calleros and [Petitioner] as two of the people who had rushed into the backyard. She selected [Petitioner] because his face was familiar to her from the party. At the preliminary hearing in January 2012, Carrasco indicated that [Petitioner] was one of the men that she had seen fighting, but she could not recall the extent of his involvement or with whom he had fought.

5. Brittany Bernal

Brittany Bernal testified that she saw a group of people fighting near the gate, but she did not recognize anyone in the group. She then saw Ramos lying on the ground. After the fight in the backyard ended, Bernal went to the front yard and got into a fight with Calleros, whom she knew from high school. Bernal and Calleros punched each other with their fists, and Calleros pulled out a large clump of Bernal's hair. Bernal then left the scene with her cousin, Janine Hernandez, and her cousin's boyfriend, Raymond Sanchez, in a dark-colored Cadillac Escalade.2

The morning after the stabbing, Bernal was interviewed by the police at her mother's home. She was uncooperative with the officers and initially refused to speak to them. In a tape-recorded interview, Bernal eventually stated that she saw Sanchez standing at the gate with a group of people. He was wearing a black hoodie. Bernal later saw Sanchez and "maybe two others" fighting with Ramos, but did not see when Ramos was stabbed. Bernal also admitted that she fought with Calleros in the front yard of the house after Calleros punched her in the face.

6. Christian Cedano

Christian Cedano testified that he heard an argument by the gate and then saw a group of people fighting. In an interview with the police the following day, Cedano provided a description of three Hispanic men who he had observed fighting with Ramos, but did not mention that any of them had tattoos. In September 2011, Cedano was shown a series of photographic lineups, and identified [Petitioner] as "being in the fight when [Ramos] was stabbed."

7. Odilon Valadez

`Odilon Valadez testified that he heard a commotion near the gate and then saw a group of about four men and two women trying to gain entry into the backyard. Ramos told the group to stay outside because they were not invited. Ramos also tried to hold the gate closed, but the group was able to force it open and a fight broke out in the backyard. Valadez saw Ramos exchange punches with at least one other man, but he did not see who threw the first punch or how Ramos ended up on the ground. Valadez believed that Ramos was trying to avoid throwing punches, but had no choice. In September 2011, Valadez was shown a series of photographic lineups and identified Sanchez, [Petitioner], and Resendez as being in the group of people that had tried to force their way into the party. At the time, Valadez was under the impression that he had to select a photograph from each lineup. However, he was never told that the target suspects were included in the lineups or that he should select certain individuals in making his identifications.

C. The Gang Expert Testimony

Officer [Hank] Ortega testified as an expert on criminal street gangs. There are five primary gangs in the Pico Rivera area, including Pico Nuevo, Pico Viejo, and Rivera. Pico Nuevo has at least 300 members and is a rival of the Pico Viejo and Rivera gangs. The primary activities of the gang include assault and battery, homicides, drug sales, possession of firearms, witness intimidation, gang graffiti, and robberies. Chagolla's house was located in the territory claimed by Pico Nuevo.

Sanchez, [Petitioner], and Resendez were Pico Nuevo gang members. Sanchez and [Petitioner] were "well respected active gang members" who held "clout within the gang at the street level." Resendez did not hold the same status as Sanchez and [Petitioner], but was an active member of the gang. Calleros's boyfriend, Mark Luna, was a lower-ranking Pico Nuevo gang member. Calleros herself had not been jumped into the gang, did not have any gang tattoos or monikers, and had not admitted to being a gang member. She also had no prior arrests for gang-related or violent crimes. However, based on the facts of this case, the Los Angeles County Sheriff's Department now considered Calleros to be a member of the Pico Nuevo gang.

Sanchez, [Petitioner], and Resendez all had tattoos signifying their membership in the gang. Sanchez, known as "Little Joker," had a tattoo of "Pico Nuevo" that ran around his head, and other prominent Pico Nuevo tattoos on his neck, arm, and upper torso. One tattoo showed a cartoon character pointing a gun and another indicated violence toward a rival gang. [Petitioner], known as "Gunner" or "Little G," had large Pico Nuevo tattoos on his back and chest and a tattoo of the words "Vieja Killer" on his arm. Resendez, known as "Chucky," had a "GND" tattoo on the top of his head, signifying his membership in the Grande clique of Pico Nuevo, and a tattoo of a rat with an "X" through the eye, symbolizing death to a rival gang. In addition, Resendez had a large outline of the letters "PN" tattooed on the back of his head.

According to Ortega, gang members often commit crimes in a group because there is "safety in numbers." They also tend to carry weapons, such as knives or guns. There was "a lot of value" to a gang in attacking a person who was not a gang member because "the word gets out there that this gang is violent," which generates fear in the community. Citizens then stop giving information to the police and testifying in court. Ortega opined that if a gang killed a young man who was not a gang member, it "would probably be more celebrated" than frowned upon by the gang. Ortega further explained that if a non-gang member hit a gang member, the gang could not "back down" because "violence is who they are" and "how they identify themselves." The gang would expect that a "back-up would render aid" to the gang member who was hit. Ortega was aware of at least one other incident where a Pico Nuevo gang member was assaulted and the gang responded to the assault by committing a murder. Ortega also was aware of instances where a fist fight involving gang members escalated to a violent assault or homicide with guns, knives, or other weapons being used.

When presented with a hypothetical based on the facts of this case, Ortega opined that the crimes would have been committed for the benefit of, at the direction of, or in association with a criminal street gang. He based his opinion on the fact that uninvited gang members had tried to enter a party and a fight ensued that resulted in a killing. The gang would take credit for the crime, which "would make big news in the Pico Rivera community." The crime would generate fear and have a psychological effect on the community, which would prevent residents from cooperating with the police. It also would enhance and elevate the fearful reputation of the gang. Ortega's opinion would not change even if the gang members were told that they could come into the party or the crime occurred outside of the gang's claimed territory.

Ortega further testified that if the gang members in the hypothetical had demanded entry into the party and exclaimed that "this is our hood," it would strengthen his opinion that the crimes were committed for the benefit of the gang. Such a statement would be a proclamation of the gang's violent nature. Moreover, because a lot of people in the Pico Rivera area grew up with gang members and were familiar with gang terminology, the announcement that "this is our hood" would create an "intimidation factor," which played a large part in gang-related crimes.

III. The Defense Evidence

The defense called Jesus Barraza, a guest at the party, to testify at trial. Barraza was friends with both Chagolla and Ramos. At some point during the party, Ramos approached a large group of people standing near the gate. A fight broke out, and Barraza saw a Hispanic man jab Ramos three times in his chest. The man was 20 to 25 years old, approximately five feet four inches in height and 190 pounds in weight, with a tattoo of red lips on the side of his neck.3 Barraza could not tell if the man was holding a weapon in his hand. After the man jabbed Ramos in his chest, Ramos responded by punching the man. Three other men then rushed toward Ramos and attacked him. In September 2011, Barraza was shown a photographic lineup that included Raymond Sanchez, the Pico Nuevo member with the red lips tattoo, but did not identify anyone.

The defense also called two of the officers who first responded to the scene of the crime and took initial statements from the witnesses. The officer who interviewed Munoz confirmed that Munoz never mentioned Calleros. The officer who interviewed Chagolla testified that Chagolla initially reported that Ramos had been shot and that she had seen the suspects run away, but she was unable to identify or describe any of them. Chagolla also did not mention Calleros in her initial statement.

Finally, Dr. Robert Shomer testified for the defense as an eyewitness identification expert.

(Respondent's Lodgment 13, pp. 3-11; see People v. Gonzalez, 2015 WL 2212367, at *1-5) (original footnotes renumbered).

PETITIONER'S REMAINING CONTENTIONS

Petitioner contends:

1. The evidence allegedly was insufficient to support Petitioner's conviction under the natural and probable consequences theory of aiding and abetting; and

2. The trial court allegedly erred by failing to include voluntary manslaughter in the jury instructions regarding natural and probable consequences; Petitioner's trial counsel allegedly erred by failing to request such an instruction.

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) ("Andrade"). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported,. . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court usually looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). The Court generally presumes that a reasoned state court decision adjudicated all of the petitioner's federal claims, even if the decision did not specifically address all such claims. See Johnson v. Williams, 568 U.S. 289, 301 (2013). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

I. Petitioner's Challenge to the Sufficiency of the Evidence Does Not Merit Federal Habeas Relief.

A. Background

Under the "natural and probable consequences" theory of aiding and abetting, an aider and abettor is guilty not only of the intended crime, but also of any other offense that was the natural and probable consequence of the target crime aided and abetted. People v. Prettyman, 14 Cal.4th 248, 261, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (1996). Under this theory of aiding and abetting, "the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime." Id. at 262. "A defendant guilty as a aider and abettor under the `natural and probable consequences' doctrine need not share the perpetrator's intent to kill." People v. Williams, 16 Cal.4th 635, 691, 66 Cal.Rptr.2d 573, 941 P.2d 752 (1997), cert. denied, 523 U.S. 1027 (1998).

In determining whether the charged crime was the natural and probable consequence of the target crime, the issue is not whether the aider and abettor "actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." People v. Medina, 46 Cal.4th 913, 920, 95 Cal.Rptr.3d 202, 209 P.3d 105 (2009) (citations and internal quotations omitted; original emphasis); see People v. Olguin, 31 Cal.App.4th 1355, 1379-80, 37 Cal.Rptr.2d 596 (1994) (as long as evidence shows intent to aid and abet target crime, "it matters not that the crime actually committed was not intended by the aider and abettor, so long as it was a reasonably foreseeable consequence of the underlying criminal conduct"). "A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case . . . and is a factual issue to be decided by the jury." People v. Medina, 46 Cal. 4th at 920 (citations omitted).

The State prosecuted Petitioner on the theory that Petitioner aided and abetted the target crimes of assault, battery, trespass and disturbing the peace and that murder was the natural and probable consequences of those crimes. As indicated above, the jury found Petitioner guilty of second degree murder, and found true the gang allegation. Petitioner claims that the evidence was insufficient to support his murder conviction under a natural and probable consequences theory of aider and abettor liability. Petitioner does not challenge the sufficiency of the evidence to support the gang enhancement.

The Court of Appeal rejected Petitioner's claim, stating that, under the California Supreme Court's decision in People v. Medina, supra, "murder can be a natural and probable consequence of a simple assault in certain circumstances such as a gang attack" (Respondent's Lodgment 13, pp. 15-16; see People v. Gonzalez, 2011 WL 2212367, at *8). The Court of Appeal reasoned that the evidence, in particular Carrasco's and Cedano's identification of Petitioner as one of those involved in the fight, proved that Petitioner was a participant in the fight and not a mere bystander (Respondent's Lodgment 13, pp. 16-19; see People v. Gonzalez, 2015 WL 2212367, at *8-9). The Court of Appeal also stated that the gang evidence proved that it was common for gang members to carry weapons and to commit crimes in groups and fairly common for a fistfight involving gang members to escalate to a "deadly assault with guns" (Respondent's Lodgment 13, p. 18; see People v. Gonzalez, 2015 WL 2212367, at *9). The Court of Appeal acknowledged that no evidence showed that Petitioner knew Sanchez was armed with a weapon, but held that such specific knowledge was not required under the natural and probable consequences doctrine (Respondent's Lodgment 13, p. 18; see People v. Gonzalez, 2015 WL 2212367, at *9). The Court of Appeal also found the evidence sufficient to show Sanchez was the "direct perpetrator" of the murder (Respondent's Lodgment 13, pp. 13-15; see People v. Gonzalez, 2015 WL 2212367, at *7).

B. Governing Legal Standards

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060, 2065 (2012).

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court 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." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct. at 2064 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).

At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).

In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 132 S. Ct. at 2064.

C. Discussion

The parties contest the interpretation and application of People v. Medina to Petitioner's claim. In People v. Medina, Medina and fellow members of the Hawthorne "Lil Watts" gang were at a party at the home of Ordenas, a former member of a once-rival gang. People v. Medina, 46 Cal. 4th at 916. Those two gangs were not rivals in the area of the home, however. Id. When the victim, Barba, arrived at the door on an errand, one of Medina's fellow gang members inside the house said "Where are you from?" Id. at 916-17. Ordenas told Medina and his companions to go outside. Id. at 917. Once outside, Medina and his companions continued to ask Barba "Where are you from?" Id. Barba said "Sanfer" to which a man in Medina's group responded with the name of his gang. Id. "Sanfer" referred to a San Fernando gang, a gang with which the "Lil Watts" gang had no rivalry. Id. "[T]here was no evidence the two gangs had an ongoing rivalry. . . ." Id. at 923. Medina said "What fool, you think you crazy?" Id. Medina and his companions then engaged in a fistfight with Barba, who "defended himself well." Id. Ordenas finally pulled Barba away and told him to leave. Id. Someone in the yard said "get the heat." Id. As Barba tried to drive away, Medina shot at Barba's car, killing Barba. Id.

A gang expert testified that members of Medina's gang committed offenses including armed assaults and homicides. Id. at 918. The expert said the area in which the killing occurred was a "transient area for gangs," such that when a new gang member arrived he would feel a need to establish himself by demanding respect. Id. The expert said that gang members viewed disrespect as a "slap in the face" that must be avenged by violence or the gang would be perceived as weak. Id. According to the expert, Medina and his fellow gang members viewed Barba's identification of his gang in response to the gang members' question "Where are you from?" as disrespectful, so they had started a fight to avenge themselves. Id. The expert said it was important for a gang to be respected and feared by other gangs. Id. The expert said a gang member who asked "Where are you from?" probably would be armed and prepared to use violence, including a fistfight and homicide. Id.

The State prosecuted Medina's companions on the theory that the killing was a natural and probable consequence of the fistfight in which those individuals participated. The California Supreme Court deemed the evidence sufficient. The Court indicated that, under the natural and probable consequences doctrine, "the ultimate factual question is one of foreseeability," an issue of fact for the jury "to be evaluated under all the factual circumstances of the individual case." Id. at 920 (citations omitted). "[P]rior knowledge that a fellow gang member is armed is not necessary to support a defendant's murder conviction as an aider and abettor." Id. at 921 (citations omitted). "Likewise, prior gang rivalry, while reflecting motive, is not necessary for a court to uphold a gang member's murder conviction under an aiding and abetting theory." Id. (citations omitted) (emphasis added).

The Court of Appeal in People v. Medina had believed the evidence insufficient, reasoning that there was no evidence that the assailants used weapons or were armed during the fistfight or that the two gangs involved were in a "war" or had been involved in prior altercations. However, the California Supreme Court observed that the gang expert's testimony showed that a gang member who issued a challenge ("Where are you from?") could be armed and that the defendants' gang was a violent gang that regularly committed gun offenses. Id. at 922-23. The California Supreme Court also noted that, because Barba had exhibited strength against the aggressors "who could not avenge themselves in response to what they considered disrespectful behavior," the jury reasonably could have found that a gang member in the defendants' position should have known that retaliation and an escalation of violence could occur. Id. Although there was no evidence of "ongoing gang rivalry," the gang expert's testimony supported the conclusion that escalating the violence with a gun was a foreseeable way to exact revenge on Barba for his initial disrespect and show of force against the defendants. Id. at 923. Accordingly, the Supreme Court deemed the evidence sufficient to hold Medina's companions liable on a natural and probable consequences theory of aiding and abetting liability. See People v. Medina, 46 Cal. 4th at 927-28; see also Vallejo v. McDonald, 2012 WL 7964669, at *19 (C.D. Cal. Dec. 21, 2012), adopted, 2013 WL 1688201 (C.D. Cal. Apr. 18, 2013), aff'd, 667 Fed. App'x 668 (9th Cir. 2016) (on federal habeas review, evidence was sufficient to support aiding and abetting conviction of one of Medina's co-defendants); Marron v. Adams, 2010 WL 5376353, at *9-10 (C.D. Cal. Aug. 17, 2010), adopted, 2010 WL 5386442 (C.D. Cal. Dec. 22, 2010) (same).

In the present case, the prosecution's evidence showed that a confrontation occurred during which the victim, Ramos, a non-gang member, refused to allow Petitioner and his fellow gang members into a non-gang private party in the gang's neighborhood. The evidence further showed that, when gang members came through the gate and Ramos was pushed or hit, Ramos responded by pushing and/or hitting back, thereby exhibiting disrespect to the gang. The evidence also showed that: (1) the house was in Pico Nuevo territory; (2) someone in the group trying to get inside the gate said "this is my hood" or "this is our hood" or "this is my varrio"; (3) when Munoz heard "this is my hood" or "this is my varrio," Munoz "knew not to mess with them"; (4) Petitioner was among the group who forced their way into the party and fought with guests; and (5) Munoz told police he heard someone yell "you hit my homie" (R.T. 938, 1234, 1384-88, 1570-71, 1598, 1600, 1912-13). The prosecution introduced photographs including: (1) a photograph depicting Pico Nuevo gang members including Petitioner, some of whom were holding guns; (2) photographs of Petitioner's tattoos, including large gang-related tattoos on Petitioner's chest and back and a tattoo saying "Vieja Killer" on Petitioner's arm, and (3) a photograph of Petitioner with other gang members in which Petitioner was displaying his gang-related chest tattoo (R.T. 2138-39, 2148-49).

The gang expert testified that: (1) it was common for gang members to carry weapons including a knife or a gun; (2) it was "fairly common" for gang-related fistfights to escalate into homicides; (3) an attack on a non-gang member brought "lot of value" to a gang because "the word gets around that the gang is violent," causing community members to become fearful and to fear contacting police or going to court; (4) gang members often committed crimes in a group because there was "safety in numbers"; (5) a gang that tolerated disrespect could lose control in the neighborhood; (6) the primary activities of the Pico Nuevo gang included assaults and homicides; (7) Petitioner was a Pico Nuevo gang member whose moniker was "Gunner" or "Little G," and who was a "well respected active gang member[]" with "clout"; (8) a gang moniker usually reflected an attribute or characteristic that the gang member so named either has or gains during gang membership; (9) one of Pico Nuevo's "enemies" was the Pico Viejo gang, which Pico Nuevo gang members identified by the derogatory term "vieja"; and (10) Petitioner's "Vieja Killer" tattoo showed his "mindset of violence towards his enemies" (R.T. 936, 2130, 2133, 2135-36, 2138-42, 2150, 2159, 2187). Presented with a hypothetical based on the facts of the case, the gang expert opined that the crimes were committed for the benefit of a criminal street gang, reasoning that the crime would be "big news" and would generate fear in the community (R.T. 2156-57). The gang expert opined that the hypothetical gang members would not back down when confronted by a non-gang member who used physical violence on a fellow gang member, and that killing a non-gang member benefitted the gang and "would probably be more celebrated than anything" (R.T. 2158, 2180-81). According to the expert, gang members would expect that a "back-up would render aid" if a fellow gang member were assaulted (R.T. 2159). The expert was aware of an incident in which Pico Nuevo gang members killed someone after a fellow gang member had been assaulted (R.T. 2179-80). The expert said that, if gang members in the hypothetical had said "Let us in. This is our hood" or "this is our neighborhood" while at the gate, this additional information would strengthen the expert's opinion that the offenses were committed for the benefit of the gang, because such statements would show "their violent nature" and cause intimidation (R.T. 2198-99).

In light of the trial evidence, this Court cannot deem unreasonable the Court of Appeal's rejection of Petitioner's claim that the evidence was constitutionally insufficient. The Court of Appeal reasonably deemed the evidence sufficient to show that the killing of Ramos was a natural and probable consequence of the assaults committed by Petitioner and his companions. See Lopez v. Scribner, 2010 WL 1643567, at *7-8 (C.D. Cal. Feb. 25, 2010), adopted, 2010 WL 1641086 (C.D. Cal. Apr. 18, 2010) (petitioner and gang companions attempted to "crash" a quinceanera party and were denied entrance; the group left the party to pick up Alvarez, a fellow gang member; the group returned to the party and engaged in a fistfight with a guest; Alvarez pointed a gun and petitioner traded hand gestures with one of the victims; petitioner and companions drove away but then returned again; Alvarez started shooting at party guests, fatally wounding one victim and hitting another victim; evidence deemed sufficient to show petitioner guilty of murder and attempted murder on a natural and probable consequences theory).

Although Petitioner points to contrary evidence and inferences (including testimony that Petitioner allegedly was not among those fighting), this Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution, and cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 565 U.S. 1, 7-9 (2011) (jury entitled to credit prosecution experts' testimony despite conflicting testimony by defense experts); McDaniel v. Brown, 538 U.S. 120, 131-34 (2010) (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (federal habeas court reviewing sufficiency of the evidence could not revisit the jury's resolution of inconsistencies between the victim's testimony and the testimony of other witnesses); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).

Petitioner argues that People v. Medina purportedly involved a fight between members of rival gangs, whereas the present case did not (see Supplemental Petitioner, pp. 40-43; Supplemental Reply, pp. 6-7). Actually, People v. Medina did not involve a fight between members of rival gangs, but rather a fight between gang members and an interloper member of a non-rival gang apparently new to the neighborhood. The gang expert in People v. Medina testified that the perpetrators' gang and the victim's gang were not rivals, and the California Supreme Court stated that "there was no evidence the two gangs had an ongoing rivalry. . . ." People v. Medina, 46 Cal. 4th at 916, 929. Moreover, the California Supreme Court expressly ruled that proof of prior gang rivalry was not necessary to support a conviction on the basis of the natural and probable consequences doctrine. Rather, the California Supreme Court focused on the perceived need for the defendant gang members to avenge the "disrespect" to which they had been subject. Similarly here, the evidence reasonably permitted the conclusion that Petitioner and his companions felt disrespected by the attempt of Ramos and others to exclude them from the party ("this is my hood!") and by Ramos' physical pushing of Calleros ("You hit my homie!"). The gang expert's testimony supported the conclusion that members of a violent gang whose efforts to crash a private party in their "hood" are rebuffed reasonably can foresee that escalating violence may occur. Gangs establish and maintain themselves in a community by means other than violence directed at rival gangs. See, e.g., People v. Hoang, 145 Cal.App.4th 264, 275-76, 51 Cal.Rptr.3d 509 (2006) (victim's brother insulted girlfriend of defendant; girlfriend called defendant, who arrived with a group of people who announced their membership in gang; defendant asked victim if he "want[ed] to start shit"; victim was stabbed; evidence sufficient to support conviction for attempted murder on a natural and probable consequences theory).

Petitioner's reliance on federal criminal non-gang aiding and abetting cases (see Supplemental Petition, pp. 32-38; Supplemental Reply, pp. 2-6) is unavailing. As indicated above, in determining the sufficiency of the evidence, the Court must look to the substantive requirements of California law, not federal law. See Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060, 2064 (2012). People v. Medina and other California cases are controlling in this Court on the substantive requirements of California law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("we have repeatedly held that a state's interpretation of state law, including one announced on direct appeal, binds a federal court sitting in habeas corpus"); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law").

For all of the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.

II. Petitioner's Claim of Instructional Error Does Not Merit Federal Habeas Relief.

A. Background

In California, "manslaughter, a lesser included offense of murder, is an unlawful killing without malice." People v. Cruz, 44 Cal.4th 636, 664, 80 Cal.Rptr.3d 126, 187 P.3d 970 (2008), cert. denied, 555 U.S. 1215 (2009) (citation omitted). "Malice is presumptively absent when a defendant kills `upon a sudden quarrel or heat of passion' [citation], provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [citation]." Id.

Under California law, because an aider and abettor may be found guilty of a lesser offense than that committed by the perpetrator, "in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence." People v. Woods, 8 Cal.App.4th 1570, 1588, 11 Cal.Rptr.2d 231 (1992). However, the court need not give such a lesser included offense instruction if the evidence does not support the instruction. Id. at 1592-93.

Here, the trial court gave general heat-of-passion voluntary manslaughter instructions, although the record does not reflect the court's reasoning for having done so (R.T. 2433-36; C.T. 726, 730). Without a defense objection, the trial court gave a natural and probable consequences instruction which informed the jury that, to prove that Petitioner was guilty of murder, the prosecution was required to prove, inter alia, that Petitioner committed the target offense(s) of disturbing the peace, trespass, assault or battery (R.T. 2442-43; C.T. 734). In California, a perpetrator is as liable as his or her fellow aider and abettor for any crime which is the natural and probable consequences of the target crime. See People v. Olguin, 31 Cal.App.4th 1355, 1375-77, 37 Cal.Rptr.2d 596 (1994). Hence, the jury could find Petitioner liable for murder if it found him guilty of a target offense either as a perpetrator or as an aider and abettor and also found that murder was a natural and probable consequence of that target crime. Petitioner faults the trial court for not identifying heat-of-passion voluntary manslaughter in the natural and probable consequences instruction as a lesser included offense of the non-target charged crime of murder (Supplemental Petition, pp. 48-52).

The Court of Appeal rejected Petitioner's claim, ruling that the evidence did not support such an instruction. The Court of Appeal reasoned that "[t[here was no evidence from which a jury reasonably could find that Ramos or any other guest initiated the fight, acted as the aggressor, or engaged in any legally adequate provocation that would make a heat-of-passion killing reasonably foreseeable" (Respondent's Lodgment 13, p. 32; see People v. Gonzalez, 2015 WL 2212367, at *16). The Court of Appeal stated that "[i]nstead, the evidence established that members of [Petitioner's] group provoked the fight by rushing or pushing their way into the backyard and then physically assaulting Ramos, who solely responded to the attack with non-deadly force" (Respondent's Lodgment 13, p. 32; see People v. Gonzalez, 2015 WL 2212367, at *16). The Court of Appeal concluded that "a heat-of-passion killing was not a reasonably foreseeable consequence of [the defendants'] physical confrontation [with] an unarmed victim who neither provoked the confrontation or engaged in any deadly force during the ensuing fight" (Respondent's Lodgment 13, p. 33; see People v. Gonzalez, 2015 WL 2212367, at *16).

B. Discussion

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). The court must decide whether "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Rhoades v. Henry, 638 F.3d 1027, 1042 (9th Cir. 2010), cert. denied, 565 U.S. 946 (2011) (citation and internal quotations omitted). The question is not whether the jury could have done so, but whether there is a reasonable likelihood it did. Id. (citation omitted; original emphasis). The court should not engage in a "technical parsing" of the challenged instruction, but rather should consider the instruction as the jury would, "with a commonsense understanding of the instructions in the light of all that has taken place at trial." Id. at 1042-43 (citation and internal quotations omitted). In challenging a failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.

Petitioner is not entitled to federal habeas relief on any claim that the trial court allegedly failed to give a lesser included offense instruction. The United States Supreme Court expressly has declined to rule whether relief is available for a trial court's failure to instruct on a lesser included offense in a noncapital case. See Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); Bortis v. Swarthout, 672 Fed. App'x 754 (9th Cir.), cert. denied, 137 S.Ct. 1605 (2017) ("There is no Supreme Court precedent establishing that a state trial court is required to instruct on lesser included offenses in noncapital cases.") (citations omitted); Powell v. Hatcher, 407 Fed. App'x 226, 227 (9th Cir.), cert. denied, 563 U.S. 998 (2011) (denying habeas relief, noting that in Beck the Supreme Court expressly declined to rule on the issue). Accordingly, under the standard of review for federal habeas petitions set forth in 28 U.S.C. section 2254(d), Petitioner is not entitled to federal habeas relief on this claim. See Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [on issue presented], it cannot be said that the state court "unreasonabl[y] applied clearly established Federal law.") (internal brackets and citation omitted); see also Daley v. Johnson, 2016 WL 2851740, at *12 (C.D. Cal. Mar. 9, 2016), adopted, 2016 WL 2851300 (C.D. Cal. May 13, 2016) (claim that trial court failed to give manslaughter instructions not cognizable on federal habeas review, citing Beck).

Moreover, under Ninth Circuit law, Petitioner's claim that the trial court erred by failing sua sponte to instruct the jury on a lesser included offense does not raise an issue cognizable on federal habeas review. See Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) ("the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question"); accord Koering v. Gonzalez, 516 Fed. App'x 665, 666 (9th Cir.), cert. denied, 134 S.Ct. 287 (2013).

The Ninth Circuit has suggested that "the defendant's right to adequate jury instructions on his or her theory of the case might, in some cases," raise a cognizable ground for federal habeas relief. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000), cert. denied, 534 U.S. 839 (2001); see also Clark v. Brown, 450 F.3d at 904 (state court's jury instructions violate due process if they deny the criminal defendant "a meaningful opportunity to present a complete defense") (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Petitioner can take no solace from this suggestion, however. The defense theory was not that Petitioner reasonably should have understood that voluntary manslaughter could have been the natural and probable consequence of one (or more) of the identified target crimes, or that Petitioner committed voluntary manslaughter. Relying on some evidence that Petitioner allegedly stood at the gate and did not join the fistfight (see R.T. 1553), counsel advanced the defense that Petitioner assertedly did not commit any of the target offenses. In closing, Petitioner's counsel told the jury that Petitioner allegedly "didn't have anything to do with it," "didn't do anything," "was just standing there not fighting," "wasn't fighting," "didn't join in," "was at the gate and didn't come in," and "committed no crime" (see R.T. 2707, 2710, 2712-13, 2715, 2718, 2723, 2725-27 [defense closing argument]). Counsel claimed Petitioner's behavior was "ungang like," and hence allegedly could not support liability on a natural and probable consequences theory (R.T. 2718, 2724). Counsel argued in the alternative that, if the jury found that Petitioner was involved in the assault, battery or disturbing the peace, Petitioner purportedly acted in self-defense (R.T. 2719-24). Counsel also argued the theory that Sanchez may have acted "independently" (R.T. 2721). But Petitioner's counsel never argued that Ramos provoked the stabbing, that Sanchez or Petitioner acted in the heat of passion, or that a reasonable person in Petitioner's position should have known that voluntary manslaughter allegedly was a natural and probable consequence of any of the target offenses. Accordingly, there is no merit to any argument that the failure to modify the natural and probable consequences instruction in the manner suggested by Petitioner purportedly deprived Petitioner of the right to present a defense.

Moreover, as the Court of Appeal reasonably ruled, the evidence did not support the proposed instruction. The heat of passion requirement for voluntary manslaughter has both an objective and a subjective component. People v. Steele, 27 Cal.4th 1230, 1252, 120 Cal.Rptr.2d 432, 47 P.3d 225 (2002), cert. denied, 537 U.S. 1115 (2003). Objectively, the heat of passion must be "such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because `no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.'" Id. at 1252-53 (quoting People v. Logan, 175 Cal. 45, 49, 164 P. 1121 (1917)). Furthermore, "[t]he defendant must actually, subjectively, kill under the heat of passion." People v. Steele, 27 Cal. 4th at 1252 (citation omitted).

"The factor which distinguishes the `heat of passion' form of voluntary manslaughter from murder is provocation." People v. Moye, 47 Cal.4th 537, 549-50, 98 Cal.Rptr.3d 113, 213 P.3d 652 (2009) (citations, internal brackets and quotations omitted). "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim [citations]." Id. "The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id. at 550 (citations omitted). "A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter." People v. Najera, 138 Cal.App.4th 212, 226, 41 Cal.Rptr.3d 244 (2006) (citation and internal quotations omitted).

Here, the evidence showed, at most, that Ramos verbally told those in the group attempting to enter the party that they could not enter, put up his hand and attempted to block the way to stop the party crashers from entering, and pushed or hit one of the people attempting to enter the party after Ramos himself had been pushed or hit. As a matter of law, this evidence could not suffice to show provocation supporting a heat-of-passion theory. See id. at 225-26 (simply calling defendant a pejorative name and pushing defendant insufficient as a matter of law to show provocation). A court does not violate a defendant's constitutional right by declining to instruct on a theory unsupported by the evidence. See, e.g., Solis v. Garcia, 219 F.3d at 929.

Finally, any alleged instructional error was harmless under the harmless error standard applicable to federal habeas cases set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Id. at 637-38. Not only was there little or no evidence to support the instruction Petitioner espouses, but the jury's determination that Sanchez committed murder necessarily demonstrates that the jury rejected any contention that Ramos supposedly provoked Sanchez to kill in the heat of passion. Accordingly, the failure to modify the natural and probable consequences instruction to add the lesser offense of voluntary manslaughter did not prejudice Petitioner within the meaning of Brecht.

III. Petitioner's Claim of Ineffective Assistance of Trial Counsel Does Not Merit Federal Habeas Relief.

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Under Strickland, review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

A court may reject a Strickland claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Petitioner contends that trial counsel ineffectively failed to seek a modification of the natural and probable consequences instruction to add the lesser included offense of voluntary manslaughter. Petitioner raised this claim in his petition for review to the California Supreme Court, which that court denied summarily (see Respondent's Lodgments 2, 3). Accordingly, this Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted).

Under the Strickland standard, "[d]efense counsel need not request instructions inconsistent with [his or her] trial theory." Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985) (citation omitted). As indicated above, the defense theory was that Petitioner was merely passively present at the gate. The theory was a reasonable strategy in light of the existence of some evidence that Petitioner was at the gate and did not join in the fighting (see R.T. 1553). This theory was also reasonable because of the lack of evidence supporting any addition of voluntary manslaughter to the natural and probable consequences instruction. See Jimenez v. Diaz, 592 Fed. App'x 594, 595-96 (9th Cir. 2015) (counsel not ineffective for failing to request a voluntary intoxication instruction, where counsel's defense was that "the murder simply did not occur as the trial witnesses testified it did," and choice of this defense was not unreasonable in light of the "various stories" the witnesses told); Gladden v. Runnels, 279 Fed. App'x 454, 455 (9th Cir. 2008) (upholding reasonableness of counsel's decision not to request a voluntary manslaughter instruction which was inconsistent with petitioner's defense that he was not responsible for events leading to victim's death and did not aid and abet others); Butcher v. Marquez, 758 F.3d at 376-77 (counsel not ineffective for foregoing a voluntary manslaughter instruction where defense theory was that defendant did not commit the charged crime); Sevchuk v. Spearman, 2015 WL 8479513, at *1, *9 (E.D. Cal. Dec. 8, 2015) (counsel's failure to request a heat-of-passion instruction not ineffective, where proposed instruction was not consistent with petitioner's defense that he was drunk and not involved in any plan to kill the victim); Caballero v. McEwen, 2013 WL 1614677, at *7-8 (C.D. Cal. Jan. 10, 2013), adopted, 2013 WL 1614675 (C.D. Cal. Apr. 15, 2013) (counsel not ineffective for failing to request voluntary manslaughter instruction, where proposed instruction was inconsistent with petitioner's theory that he was absent from the scene of the crime); see also Cain v. Chappell, F.3d ____, 2017 WL 4018393, at *12 (9th Cir. Sept. 13, 2017) ("it is not ineffective for counsel to refrain from pursuing jury instructions that have no basis in the evidence"). Furthermore, because the evidence did not support the proposed instruction and the jury rejected any contention that Ramos engaged in provocation sufficient to support a voluntary manslaughter theory, counsel's failure to request the addition of voluntary manslaughter to the natural and probable consequences instruction did not cause any Strickland prejudice. See Strickland, 466 U.S. at 694.

For all of the foregoing reasons, the California Supreme Court's rejection of Petitioner's claim of ineffective assistance of trial counsel was not contrary to, or an unreasonable application of, any "clearly established Federal law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 101. Petitioner is not entitled to federal habeas relief on this claim.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.