ORDER: DENYING HABEAS PETITION; DISMISSING ACTION WITH PREJUDICE; AND DENYING A CERTIFICATE OF APPEALABILITY

MARGARET A. NAGLE, Magistrate Judge.

On September 18, 2013, Petitioner, a California state prisoner, filed a habeas petition, which pleaded three claims ("Petition"). On November 19, 2013, Respondent filed a motion to dismiss the Petition on the ground that it was "mixed," because Ground Two was unexhausted.

On November 21, 2013, the Court1 issued an Order in which it: concluded that Ground Two was not fairly presented in Petitioner's appeal and, thus, the claim was unexhausted and the Petition was "mixed"; advised Petitioner of his four options given the "mixed" nature of the Petition; and directed Petitioner to file a response, advising the Court of his elected option. On December 4, 2013, Petitioner filed a response to the Court's November 21 Order, in which he voluntarily dismissed Ground Two, without prejudice, on the ground that the claim is unexhausted. On December 6, 2013, the Court ordered Ground Two of the Petition dismissed without prejudice, deemed the Petition to be amended to consist only of Grounds One and Three, and denied the motion to dismiss as moot.

On February 20, 2014, Respondent filed an Answer to the Petition.2 On May 9, 2014, Petitioner filed a Response to the Answer. The matter is fully briefed and under submission to the Court.

PRIOR STATE PROCEEDINGS

On March 5, 2010, a Santa Barbara County Superior Court jury found Petitioner guilty of first degree residential robbery, first degree burglary with a person present, forcible rape, sexual penetration by foreign object, cruelty to a child by endangering health, and dissuading a witness. The jury also found true numerous gang, personal use of a firearm, and personal infliction of great bodily injury enhancement allegations. (Lodg. No. 1, Clerk's Transcript ("CT") 564-89.) In addition, the jury found that Petitioner committed the rape and sexual penetration offenses during the course of a residential burglary within the meaning of California Penal Code § 667.61 (California's "One Strike" law). (CT 572-75.) In a separate proceeding outside the presence of the jury, Petitioner admitted, and the trial court found true, allegations that Petitioner had suffered two prior convictions (and related prison terms) within the meaning of California Penal Code § 667.5(b). (CT 710-12.) Petitioner thereafter was sentenced to a total term of 38 years plus 57 years to life. (CT 736-39, 803-06; Lodg. No. 9 at 2.)3

Petitioner appealed and raised Grounds One and Three of the Petition. (CT 793; Lodg. Nos. 4, 7.) On March 7, 2012, the California Court of Appeal affirmed Petitioner's convictions in a written, reasoned decision, although it reversed his sentence on the dissuading a victim conviction and remanded the case for resentencing on that conviction. (Lodg. No. 9.) Petitioner sought review in the California Supreme Court. (Lodg. No. 10.) On June 13, 2012, the California Supreme Court denied review summarily. (Lodg. No. 12.)

BRIEF SUMMARY OF THE EVIDENCE AT TRIAL4

"Jane Doe"5 grew up in Lompoc, California, and was still living there in October 2008. She lived with Troy Grant, her boyfriend, and their son Dante, who was a year and a half old, and Dasha, Grant's child from a previous relationship, who was six years old. (Lodg. No. 3, Reporter's Transcript ("RT") 291-93, 648-49.) Doe had met codefendant Coleman a few times prior to October 15, 2008, including at the home of her friend Bridgette Oliver, but Doe was not Coleman's friend. Doe had not seen Petitioner before October 15, 2008. (RT 344-45.). Oliver was acquainted with Coleman and had seen Petitioner with Coleman on several occasions. (RT 756-57.) Grant went to the same high school as Petitioner and had seen Coleman around, but Grant was not a friend of either man. (RT 650.)

On October 15, 2008, Grant left home to work a night shift. Doe remained at home and put the two children to bed around 9:30 p.m. (RT 299-300, 655.) Oliver, who was Doe's best friend at the time, was at the house and they watched television. Oliver left around 11:00 p.m., and Doe went to bed 15 minutes later. (RT 300-02.)

Doe fell asleep but woke when she heard a "fidgeting" sound coming from her front door knob. She sat up, got out of bed, and heard a "big boom." Two men ran into the room: one — who Doe identified as Petitioner — had a "net" stocking over his face; and the other wore a gorilla mask and was holding a bat and a firearm. Both men were wearing gloves and referred to each other as "Cuz," a term Doe understood to be a name that members of the Crips gang call each other. Petitioner grabbed Doe from behind and used his elbow to put pressure on her neck. (RT 301-09, 342-43.)

The two men demanded money and "weed," i.e., marijuana. Petitioner was choking Doe so "hard" that she started to lose sight and could not breathe. Petitioner knelt Doe over the bed, facedown, and told the other man to get something to tie up her feet. Doe felt someone attempt to tie her ankles with a wire. (RT 309-11.) One of the intruders pulled Doe's pants down. She felt both men's hands on her. One of the men penetrated her vaginally with his penis, and it was painful. Thereafter, she was penetrated vaginally by a plastic object. (RT 311-15.)

Petitioner stood up and again asked Doe for the location of money and weed, and Doe told him the items were in the car and also in a jacket belonging to Grant. The man in the gorilla mask obtained a backpack from the car, which contained the marijuana; however, there was no money in Grant's jacket. Petitioner again asked for money, and Doe told him it was in her son's room, in a jacket in his closet. During this time, Petitioner had Doe in a chokehold. He forced her to go to her son Dante's room, and the man in the gorilla mask retrieved the money from a jacket and went outside. Approximately $1,100 was taken. Dante was awake as this occurred. (RT 315-18.) Petitioner took Doe into the hallway and said she had the option of either being tied up or knocked out. Doe was crying and said, "just let me go." Petitioner walked her into Dasha's bedroom, knelt her over the bed, and told her to not move and to count to a thousand. Dasha was awake and crying. Petitioner left. (317-19.)

Shortly after Petitioner left Dasha's room, Doe gathered the children and her purse and left in her car. She called Grant and told him what happened, and he told her to bring the children to his workplace, which Doe did. All of them then went to the hospital. Grant called Oliver, who came and stayed with Doe, and Grant took the children to Doe's mother. (RT 319-21, 657-59.)

Thereafter, a SART (Sexual Assault Response Team) nurse examined Doe. (RT 330, 333, 846-48.) Although Doe had difficulty breathing and swallowing, because her throat and neck felt crushed due to the chokehold, she was able to describe the attack and the intruders to Grant. (RT 332-33, 660, 865, 868.) Doe had bruising and abrasions in numerous areas of her body, her vaginal area was painful and tender, and the back of her neck was red, swollen, and tender. (RT 334-38, 859-62, 868-69, 874, 877-79.) Doe described the incident to the SART nurse and to a police officer who interviewed her at the SART location. (RT 854-73, 1028-36.)

Doe went to her parents' home after she left the SART location. Oliver showed up 30 minutes later. (RT 339.) Doe described the incident to Oliver, including the assailants' appearances. They looked at the MySpace website, Doe saw a photograph of Petitioner, and she recognized him as the man who wore the net stocking mask. Doe called Detective Clancy, who had interviewed Doe at the SART location, and both Doe and Oliver told Clancy that: when Doe described the assailants, Oliver said she thought she knew who one of them was; Oliver brought up Petitioner's photograph on MySpace; and Doe said right away that the man depicted was one of the assailants. (RT 340-44, 1064-65.)

Petitioner was arrested on October 17, 2008. (RT 933-34) He had $1,250.50 on his person when he was arrested. (RT 1077.) Detective Clancy interviewed Petitioner a few days later, and Petitioner stated that: after he finished work on October 15, 2008, he came to Lompoc to visit with various people, although could not remember who he visited other than Aundrice Dixon; he visited with Dixon until 11:00 p.m., then he went to pick up Gloria Thomas, and they drove to his home in Santa Maria; he and Thomas stayed the night at his Santa Maria home; the next morning, he went to work; and after he finished work, he picked Thomas up at his Santa Maria residence and brought her back to Lompoc, and he then returned to Santa Maria. (RT 1074-76.)

A week later, Detective DeLauretis interviewed Dixon. She told him that she had seen Petitioner and Coleman on the afternoon of October 15, 2008, walking through her apartment complex, and they stopped by her residence at around 4:00 or 5:00 p.m. (RT 941-42.)

On November 3, 2008, Detectives Clancy and DeLauretis interviewed Thomas. (RT 948.) Some time after October 16, 2008, Thomas, who had read an article about the crime in the newspaper, asked Petitioner if he was involved, and he responded, "I was not there." Thomas asked Petitioner if Doe has been raped, and he said, "Not to my knowledge." (RT 951-52.) Thomas thereafter started to cry during the interview and said she was scared. She said that, during the same conversation with Petitioner, he told her she needed to get his car and remove some clothing from his house (which she did), and he also said, "We did go in the house." (RT 952-53, 1058.) Petitioner asked Thomas to get a message to Coleman, who had not yet been located by the police, "to stay where he's at and not come in," and to have her boyfriend give a false alibi for Coleman. (RT 953-55, 1058.) Thomas stated that she was not with Petitioner on the evening of October 15, 2008, as he claimed. (RT 954.)

Detective Clancy interviewed Oliver on November 4, 2008. Oliver stated that when she spoke with Doe after the incident and heard Doe's descriptions of the assailants, Oliver believed that Doe was describing Petitioner and Coleman. Oliver said that Petitioner and Coleman were always together, and around that time frame, she spoke with Coleman daily. Coleman called Oliver on October 15, 2008, while she was at Doe's house, and again on October 16, 2008, at which time he said "he didn't rape nobody," and she told him to turn himself in. (RT 755, 1068-70.) At trial, Oliver denied having told anyone that Coleman matched the description of the second assailant. (RT 755.) Oliver testified that when she told Detective Clancy she had advised Coleman to turn himself in, it "had nothing to do with" the crimes committed against Doe and, instead, related to an outstanding warrant for something else. (RT 761.)

Coleman confessed that: he and Petitioner broke into Doe's home, stole marijuana, and attempted to tie Doe up; and that Petitioner physically assaulted Doe, although Coleman denied that either man raped her. (Lodg. No. 2 at 85-95, 104, 109-10, 112-13, 116-17, 132-36.) Evidence of Coleman's confession was not presented to Petitioner's jury. (RT 988-1000, 1003-13, 1015.)

PETITIONER'S HABEAS CLAIMS

In Ground One, Petitioner contends that his Confrontation Clause rights were violated by the admission of evidence of pre-offense oral statements made by Coleman and post-offense letters written by and to Coleman. (Petition at 5 and attachment 1A.)

In Ground Three, Petitioner contends insufficient evidence was presented at trial to support the California Penal Code § 186.22(b)(1) criminal street gang enhancement allegations found by the jury to be true. (Petition at 5-6 and attachment 1C-3C.)

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner whose claim has been "adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: "(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." See also Harrington v. Richter, 131 S.Ct. 770, 784 (2011) ("By its terms § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).").

Clearly established federal law, for purposes of Section 2254(d)(1) review,6 means Supreme Court holdings in existence at the time of the relevant state court decision. Greene v. Fisher, 132 S.Ct. 38, 44-45 (2011); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1399 (2011); Richter, 131 S. Ct. at 785. Deference to a state court decision is required absent a Supreme Court decision that either "`squarely addresses'" the issue in the case before the state court or establishes a legal principle that "`clearly extends'" to a new context. Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013) (citation omitted), cert. denied, 134 S.Ct. 1547 (2014); Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Richter, 131 S. Ct. at 786 (it "`is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by'" the Supreme Court) (citation omitted). While circuit precedent is relevant "to ascertain whether [a circuit] has already held that the particular point in issue is clearly established by Supreme Court precedent," circuit precedent may not "be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450-51 (2013) (per curiam); see also Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014) ("Our precedent cannot be mistaken for clearly established Supreme Court law.").

Under Section 2254(d)(1)'s first prong, a state court decision is "contrary to" clearly established federal law if the state court applies a rule that contradicts the relevant Supreme Court holdings or reaches a different conclusion than that reached by the high court on materially indistinguishable facts. Price v. Vincent, 123 S.Ct. 1848, 1853 (2003). "Thus, the `contrary to' prong requires a direct and irreconcilable conflict with Supreme Court precedent." Murray, 745 F.3d at 997.

Section 2254(d)(1)'s second, "unreasonable application" prong constitutes an objective standard that is not satisfied merely by finding that a state court erred in applying clearly established federal law. Richter, 131 S. Ct. at 785; Lockyer v. Andrade, 123 S.Ct. 1166, 1174 (2003). "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, 127 S.Ct. 1933, 1939 (2007) ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.'"); see also Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012) (a finding that the state court was incorrect or erroneous is insufficient to warrant habeas relief, because the Section 2254(d)(1) "inquiry is strictly limited to whether the state court's application of clearly established Supreme Court precedent" was objectively unreasonable), cert. denied, 133 S.Ct. 989 (2013).

"[S]o long as `fairminded jurists could disagree' on the correctness of the state court's decision," habeas relief is precluded by Section 2254(d). Richter, 131 S. Ct. at 786 (citation omitted); see also id. at 786-87 (a petitioner is required to prove that the state decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement"). "Under § 2254(d), a habeas court must determine what arguments supported or, as [in the case of a silent denial of relief], 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 of a prior decision of this Court." Id. at 786. A federal court has the authority to issue habeas relief only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id.; see also Murray, 745 F.3d at 998 ("The deferential standard imposed under AEDPA cloaks a state court's determination with reasonableness, so long as `fairminded jurists could disagree' as to whether a claim lacks merit.") (citation omitted).

"AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' . . . and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (citations omitted). "[T]he purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction." Greene, 132 S. Ct. at 43 (citation and quotation marks omitted); see also Richter, 131 S. Ct. at 786 (the AEDPA standard was intended to be "difficult to meet"). "The petitioner carries the burden of proof." Pinholster, 131 S. Ct. at 1398.

Grounds One and Three of the Petition indisputably are governed by the Section 2254(d) standard of review, because these claims were raised on direct appeal and resolved on their merits. The Court looks through the California Supreme Court's silent denial to the reasoned decision of the California Court of Appeal resolving both claims on their merits. Cannedy v. Adams, 706 F.3d 1148, 1158-59 (9th Cir.), amended by 733 F.3d 794, cert. denied, 134 S.Ct. 1001 (2013); see also Berghuis v. Thompkins, 130 S.Ct. 2250, 2259 (2010) (when claims were raised on appeal and denied by state court of appeal on their merits in a reasoned decision, and the state supreme court denied discretionary review, the "relevant state-court decision" for purposes of Section 2254(d) review was the state court of appeal decision); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012) (a federal habeas court must "look through state-court summary denials to the last reasoned state-court opinion on the claim at issue," i.e., the California Court of Appeal's decision on appeal affirming the petitioner's conviction).

DISCUSSION

I. Petitioner's Confrontation Clause Claim Does Not Warrant Federal Habeas Relief.

In Ground One, Petitioner contends that he was deprived of his federal constitutional rights to confront and cross-examine witnesses, because evidence was presented of written and oral statements made by and to Coleman before the offenses and after them.

A. Background

The California Court of Appeal made extensive factual findings relevant to Ground One. Under 28 U.S.C. § 2254(e)(1), these factual findings are presumed true unless rebutted by clear and convincing evidence. See, e.g., Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003). As neither party has challenged such findings, and they are consistent with the Court's own review of the record, the Court quotes them below as background for Ground One.7

While in jail awaiting trial, [Petitioner] and Coleman exchanged numerous written communications referred to as "letters" or "kites." There were also letters and telephone calls by [Petitioner] and Coleman to third parties. In motions in limine, the prosecution sought a ruling that the written and telephonic communications were admissible as admissions, adoptive admissions, statements between co-conspirators, evidence giving context to other evidence, and evidence relied on by the prosecution's gang expert. [Petitioner] and Coleman argued that admission would violate the Bruton/Aranda rule and [such communications] were not admissible under any exception to the hearsay rule. The trial court ruled that the communications were admissible.

(Lodg. No. 9 at 4-6.)

B. The Clearly Established Federal Law That Governs Ground One

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. In Crawford v. Washington, 124 S.Ct. 1354 (2004), the Supreme Court held that the Confrontation Clause bars the admission of "testimonial" out-of-court statements by witnesses not appearing at trial unless either (1) the statements are offered for purposes other than proving the truth of the matter asserted or (2) the witnesses are unavailable and the defendant had a prior opportunity to cross-examine them. Id. at 1364-65, 1369 & n.9. Critically, however, only "testimonial statements" implicate the Confrontation Clause and Crawford's holding. Davis v. Washington, 126 S.Ct. 2266, 2273 (2006); see also Whorton v. Bockting, 127 S.Ct. 1173, 1183 (2007) ("the Confrontation Clause has no application to" an "out-of-court nontestimonial statement").

In Crawford, the Supreme Court declined to define the meaning of "testimonial." 124 S. Ct. at 1374 ("We leave for another day any effort to spell out a comprehensive definition of `testimonial.'"). Subsequent Supreme Court cases suggest, however, that a statement is "testimonial" if its declarant knew, or should have known, that its primary utility was to provide evidence of the defendant's unlawful conduct for use in his prosecution or a criminal investigation into past events. See Williams v. Illinois, 132 S.Ct. 2221, 2242 (2012) ("The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions."); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 (2009) (opining that a statement is "testimonial" if it was made for an "evidentiary purpose" and "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") (internal citation and quotation marks omitted).

As the Ninth Circuit has observed, Crawford's discussion of what may constitute a testimonial statement was premised on the use of statements "made to a government officer with an eye toward trial, the primary abuse at which the Confrontation Clause was directed." Jensen v. Pliler, 439 F.3d 1086, 1089 (9th Cir. 2006). "Although Crawford did not define `testimonial' or `nontestimonial,' it made clear that the Confrontation Clause was concerned with `testimony,' which `is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,' and noted that `[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.'" Delgadillo v. Woodford, 527 F.3d 919, 927 (9th Cir. 2008) (the state court's finding that a victim's statements to her coworkers were not "testimonial" for Confrontation Clause purposes was not contrary to or an unreasonable application of Crawford).

That said, Supreme Court precedent still does not define "testimonial" and "nontestimonial" statements with precision. See Flournoy v. Small, 681 F.3d 1000, 1004, 1005 (9th Cir. 2012) (stating that Crawford and its progeny fail to "delineate precisely what statements qualify as `testimonial'"). In the absence of a clearly established Supreme Court definition of "testimonial," a federal habeas court must give state courts "leeway" in their case-by-case applications of Crawford and subsequent decisions. Yarborough v. Alvarado, 124 S.Ct. 2140, 2149 (2004) ("The more general the rule, the more leeway state courts have in reaching outcomes in case-by-case determinations.").

Historically, the Confrontation Clause has had a specific application to certain statements made by nontestifying codefendants. Under what is commonly called the Bruton rule, or the Bruton/Aranda rule in California cases,10 the Confrontation Clause may be violated when statements made by a nontestifying codefendant are proffered as evidence if such statements directly implicate another defendant who has not, or will not have, an opportunity to cross examine the codefendant regarding the statements. Bruton, 88 S.Ct. 1620, 1623, 1628 (1968). The Bruton rule applies even if the jury is instructed to consider the nontestifying codefendant's statements only against him. Id. The Bruton rule assumes that the statement by the nontestifying codefendant, on its face, "expressly" implicates the other defendant; if it does not, or only implicates the other defendant when linked with evidence introduced later at trial, the rule has no application. Richardson v. Marsh, 107 S.Ct. 1702, 1707-09 (1987).

In Bruton, the government did not attempt to use the confession of Bruton's codefendant as evidence against Bruton himself because, under the prevailing rules of evidence, the confession constituted inadmissible hearsay if used against Bruton. The Supreme Court noted this distinction and expressly reserved the question of whether the Confrontation Clause is violated by the admission of one defendant's extrajudicial statements against his codefendant at their joint trial under an exception to the hearsay rule:

Bruton, 88 S. Ct. at 1623 n.3 (citations omitted); see also United States v. Arceneaux, 437 F.2d 924, 927 n.5 (9th Cir. 1971) ("Bruton expressly refrained from the expression of an opinion in cases where the hearsay rule is not violated."); United States v. York, 933 F.2d 1343, 1362 n.3 (7th Cir. 1991) ("Bruton only prohibits the use of an inculpatory hearsay statement against an accused when the jurisdiction's rules of evidence do not permit the statement to be introduced into evidence against the accused. Where the rules so permit, Bruton is inapplicable."), overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999); People v. Smith, 135 Cal.App.4th 914, 922 (2006) (the Bruton rule "presumes the statement is an admissible admission by the declarant and inadmissible hearsay against the codefendant . . ., [and] if the statement is admissible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant; no reason exists for severance or redaction").

Bruton was decided over 25 years before the Supreme Court, in Crawford, effected a sea change in Confrontation Clause jurisprudence by refocusing the constitutional litmus test on whether a statement was "testimonial," as opposed to whether it passed the previously applicable "indicia of reliability" test.11 As the California Court of Appeal correctly recognized in Petitioner's appeal, there is a "developing body of law that Bruton [does] not apply to non-testimonial statements at all." (Lodg. No. 9 at 7 n.6.) To date, the federal circuit courts have concluded that Bruton must be applied in the light of Crawford, and thus, the Bruton rule does not apply at all when the codefendant's statement is nontestimonial. See, e.g., Smith v. Chavez, 2014 WL 1229918, at *1 (9th Cir. March 4, 2014) (because the out-of-court statement by the nontestifying codefendant — an account of the crime given to his girlfriend in a motel — "was clearly not testimonial," it was reasonable for the state court to reject a Bruton claim, "given that Bruton's core holding relies on the Confrontation Clause" and Crawford teaches that the Confrontation Clause bars only testimonial out-of-court statements); United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013) (a finding that a codefendant's statements were nontestimonial "dispatch[ed]" a defendant's Bruton claim, because: "Bruton is simply irrelevant in the context of nontestimonial statements. Bruton espoused a prophylactic rule designed to prevent a specific type of Confrontation Clause violation. Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate Bruton."); United States v. Figueroa, 729 F.3d 267, 276 n.14 (3d Cir. 2013) ("The protections of the Confrontation Clause and Bruton apply only to testimonial statements."); United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) ("It is thus necessary to view Bruton through the eyes of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause has `no application.'" (citation omitted)); United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) ("the Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements"); United States v. Dale, 614 F.3d 942, 958 (8th Cir. 2010) ("Reading Bruton in light of Crawford, we conclude that a Bruton violation must be predicated on a testimonial out-of-court statement implicating a co-defendant."); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) ("Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements."); United States v. Taylor, 509 F.3d 839, 850 (7th Cir. 2007) (finding no Bruton error because the challenged remarks were nontestimonial under Crawford ).

C. The State Court Decision.

With respect to the challenged evidence of extrajudicial statements by Coleman and others, the California Court of Appeal concluded that "[t]here was no confrontation clause violation because the statements were non-testimonial, and admissible under exceptions to the hearsay rule." (Lodg. No. 9 at 7.) The California Court of Appeal initially noted the Bruton/Aranda rule, i.e., that "[a]dmission of an out-of-court statement by a non-testifying defendant which incriminates a codefendant in a joint trial generally violates the confrontation clause if the statement would be inadmissible against the codefendant in a separate trial." (Lodg. No. 9 at 7, citing Bruton and Aranda.) The state appellate court further observed that: "[i]f the statements would have been admissible in a separate trial under an exception to the hearsay rule, they are also admissible in a joint trial"; and "[a]lthough admission of out-of-court testimonial statements is barred even if admissible under a hearsay exception, there is no confrontation clause violation when non-testimonial statements are admitted under a state law exception to the hearsay rule." (Id., citing, inter alia, Crawford, Davis, and Whorton.)

The California Court of Appeal then noted that it was "uncontested that the challenged statements are non-testimonial" and described them as "informal statements to an associate or friend, not formal statements to a government officer." (Lodg. No. 9 at 7.)

(Id. at 8; citation omitted.) Thus, the California Court of Appeal reasoned, the Confrontation Clause was not implicated, because the statements at issue were nontestimonial. (Id.)

Next, the California Court of Appeal found that, "[i]n any event," the challenged evidence was admissible in a joint trial under the co-conspirator exception to the hearsay rule. (Lodg. No. 9 at 8, citing, inter alia, California Evidence Code § 1223.) The state appellate court found the evidence demonstrated that: under California law, a conspiracy existed "to avoid prosecution by dissuading witnesses and fabricating alibis and other exculpatory evidence"; "the statements were made by participants in the conspiracy and furthered the objectives of the conspiracy"; this "conspiracy may be deemed to extend beyond the crime to activities contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy"; and there was "circumstantial evidence that appellants conspired with each other to rob and burglarize the home of [Grant] and Jane Doe." (Lodg. No. 9 at 8-10.)

(Id. at 9.)12

D. The State Court Decision Is Entitled To Deference.

As the state court acknowledged, courts interpreting the interplay of the clearly established Confrontation Clause precedent of Bruton and Crawford have concluded that the Bruton rule is inapplicable if the statement at issue is not precluded by Crawford, i.e., because it is nontestimonial and, thus, does not implicate the Confrontation Clause. The Circuit Courts "appear to have unanimously concluded that where a statement is non-testimonial, neither Crawford nor Bruton apply." Hundley v. Montgomery, 2014 WL 1839116, at *12 (E.D. Cal. May 8, 2014) (No. 2:12-cv-3051-JKS). Significantly, Crawford did not address the effect of its dramatic change in Confrontation Clause jurisprudence on the Bruton rule. Since the Crawford decision issued, there has not been any Supreme Court decision addressing whether the Bruton rule applies when a codefendant's statement is nontestimonial in nature — a situation, post-Crawford, that would not implicate the Confrontation Clause at all had the statement been made by a third party who was not a codefendant.

In any event, the state court's conclusion that the statements at issue were nontestimonial plainly was an objectively reasonable application of Supreme Court precedent. Indeed, in their appeals, neither Petitioner nor Coleman claimed that the challenged statements were testimonial within the meaning of Crawford. (See Lodg. Nos. 4-5, 6-7, and 10-11, passim.) While it was "uncontested" that the statements were nontestimonial (Lodg. No. 9 at 7), had any claim been made that the statements were testimonial, it would have been frivolous. The statements challenged by Petitioner were made between friends, associates, and fellow gang members in casual letters and conversations. Supreme Court precedent suggests that the statements at issue were nontestimonial, because at the time the declarants were speaking, they had no reason to expect that their statements would be used as evidence in a trial or a criminal investigation. See Williams, 132 S. Ct. at 2242; Melendez-Diaz, 129 S. Ct. at 2532. There was no formality to any of these communications, no governmental involvement, and no view toward the statements being used at trial when they were made. Indeed, there was no reason why Coleman and those with whom he communicated would have believed that the primary purpose of the statements would be for prosecuting Coleman and Petitioner. The blunt, and at times cryptic and/or profane, statements between fellow gang members and their female associates using gang vocabulary and vernacular were, as the California Court of Appeal aptly and accurately described them, "essentially the opposite of giving testimony." (Lodg. No. 9 at 8.) There simply is no tenable basis for finding the challenged statements to fall on the "testimonial" side of the "testimonial/nontestimonial" litmus test for Confrontation Clause analysis established by Crawford.

The state court's conclusion — that the statements by Coleman and others were not "testimonial" and, thus, did not implicate the Confrontation Clause — was reasonable for purposes of Section 2254(d)(1). This finding in itself dooms Ground One to the extent that the claim can be construed to raise a generalized Confrontation Clause claim with respect to the evidence of statements by Coleman and others. To the extent that Ground One is construed as raising a more specific type of Confrontation Clause claim, i.e., as a Bruton challenge to the admission of the evidence of statements made by Coleman, Ground One nonetheless still fails. If, as the overwhelming weight of federal authority interpreting Crawford and Bruton holds, nontestimonial statements do not implicate Bruton, then that is the end of the matter, and Ground One fails for that reason alone. If, for Section 2254(d)(1) purposes, such authority is deemed to deal with an issue in flux, i.e., one that is unsettled under existing Supreme Court precedent, then Ground One also necessarily fails, because the question is an open one for purposes of AEDPA review. See, e.g., Knowles v. Mirzayance, 129 S.Ct. 1411, 1419 (2009) (Section 2254(d)(1) is not satisfied when a state court has "decline[d] to apply a specific legal rule that has not been squarely established by" the Supreme Court); Carey v. Musladin, 127 S.Ct. 649, 654 (2006); see also Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007) (if habeas relief depends upon the resolution of an open question under Supreme Court decisions, "Section 2254(d)(1) precludes relief").

Petitioner's allegations in this action are brief. He does not address the state court's conclusion that the challenged statements were nontestimonial and, thus, fall outside the Confrontation Clause's prophylactic ambit. Rather, Petitioner's principal Confrontation Clause argument seems to be that the state court erred in finding that the statements at issue fell within the hearsay exception for statements of co-conspirators. (Petition at attachment 1A.) Indeed, in the state courts, the primary argument made by Petitioner and Coleman on appeal was that the trial court erred in admitting the statements pursuant to California's hearsay exception for co-conspirator statements, California Evidence Code § 1223. (See Lodg. No. 4 at 48-53, No. 7 at 11-14, No. 8 at 2-5, No. 10 at 13-16, and No. 11 at 3-6 .)

As noted earlier, in addition to its finding that the challenged statements by Coleman and others were nontestimonial for Confrontation Clause purposes, the California Court of Appeal concluded that the statements fell within California's co-conspirator exception to the hearsay rule. (Lodg. No. 8-10.) "A federal court, of course, cannot review questions of state evidence law." Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); see also Estelle v. McGuire, 112 S.Ct. 475, 480 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state law questions"). This resolution of a state law question — to wit, whether the evidence adduced satisfied a state law hearsay exception — is one on which this federal habeas court must defer to the state courts. See Bradshaw v. Richey, 126 S.Ct. 602, 604 (2005) (per curiam) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"); Hicks v. Feiock, 108 S.Ct. 1423, 1428 & n.3 (1988) (federal habeas court is not at liberty to disregard a California Court of Appeal's rulings on state law when the California Supreme Court has denied review). Here, the state court's conclusion that the challenged statements met the requirements of California Evidence Code § 1223 is binding on this Court in this federal habeas proceeding. See Lilly v. Virginia, 527 U.S. 116, 125, 119 S.Ct. 1997, 1894 (1999) (plurality opinion) (after noting that the state court had found a statement to fall within the statement against penal interest hearsay exception, the Supreme Court stated: "We assume, as we must, that [the declarant's] statements were against his penal interest as a matter of state law"). Petitioner's argument here is simply that the state courts erred in interpreting California law in his case. Petitioner's request that this Court second-guess the state courts' application of California law is not cognizable.

The state court's finding to which this Court must defer — viz., that the statements were made as a part of a conspiracy "to avoid prosecution by dissuading witnesses and fabricating alibis and other exculpatory evidence" (Lodg. No. 9 at 8) — renders federal habeas relief unavailable. As Crawford recognized, "statements in furtherance of a conspiracy" are a classic example of nontestimonial statements that fall outside the protection of the Confrontation Clause. Crawford, 124 S. Ct. at 1367; see also United States v. Grasso, 724 F.3d 1077, 1085 n.9 (9th Cir. 2013) ("[a]lthough the Sixth Amendment limits the admissibility of testimonial evidence, . . . co-conspirator statements in furtherance of a conspiracy are not testimonial") (citations omitted); United States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005) ("co-conspirator statements are not testimonial and therefore beyond the compass of Crawford's holding"); see further United States v. Clark, 717 F.3d 790, 816-17 (10th Cir. 2013) (explaining that, under Crawford, an out-of-court statement made by one codefendant to a third party co-conspirator, in furtherance of the underlying conspiracy, did not implicate the Bruton rule, because statements made to further a conspiracy are not testimonial). Because the statements of Coleman and others were found, under state law, to constitute the statements of co-conspirators made to further a conspiracy, these statements fell outside the ambit of the Confrontation Clause and were admissible without constitutional violation. See United States v. McCown, 711 F.2d 1441, 1448-49 (9th Cir. 1983) (Bruton was not violated by the admission of statements made by a codefendant, because such statements were made in furtherance of a conspiracy in which the defendant was a participant and the statements fell within the federal hearsay exception for co-conspirator statements).

The California Court of Appeal noted the clearly established federal law and correctly applied it. Under Section 2254(d)(1), its decision must be accorded deference. Accordingly, Section 2254(d)(1) precludes federal habeas relief based on Ground One.

II. Petitioner's Sufficiency Of The Evidence Claim Does Not Warrant Federal Habeas Relief.

In Ground Three, Petitioner contends that the evidence adduced at trial was insufficient to support the gang enhancement allegation which the jury found to be true.13 Specifically, Petitioner contends that the evidence was insufficient to satisfy the requirement of California Penal Code § 186.22(b)(1) ("Section 186.22(b)(1)") that the crimes of which he was convicted were "committed for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members." Petitioner argues there was no evidence that gang signs were used during the commission of the crimes or that the money was taken for the benefit of or in furtherance of a gang. He notes the testimony of the gang expert and others that gangs frown upon sexual assaults and that the commission of such a crime may result in punishment by other gang members. Petitioner contends that the evidence showed "merely that there was more than one gang member involved in the robbery," and thus, it was insufficient to satisfy the requirements of Section 186.22(b)(1). (Petition at 5-6 and attachment 1C-3C.)

A. The Clearly Established Federal Law That Governs Ground Three

The Fourteenth Amendment's Due Process Clause guarantees that a criminal defendant may be convicted only "upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 90 S.Ct. 1068, 1073 (1970). The Supreme Court announced the federal standard for determining the sufficiency of the evidence to support a conviction in Jackson v. Virginia, 99 S.Ct. 2781 (1979).

Under Jackson, "[a] petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 90 S. Ct. at 2789; see also Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam) (a habeas court "may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury"). "Put another way, the dispositive question under Jackson is `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) (en banc) (quoting Jackson). The Court need not find that the conclusion of guilt was compelled, only that it rationally could have been reached. Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000); see also United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991) ("The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict.").

A habeas court reviewing a sufficiency of the evidence claim must consider all evidence admitted at trial, notwithstanding a contention by a petitioner that some of the admitted evidence should have been excluded. McDaniel v. Brown, 130 S.Ct. 665, 672 (2010) (per curiam). "`Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). The reviewing court need not decide whether it would have found the trial evidence sufficient or scrutinize "the reasoning process actually used by the fact-finder." Jackson, 99 S. Ct. at 2788-89 & n.13. Jackson also does not require that the prosecutor affirmatively "`rule out every hypothesis except that of guilt.'" Wright v. West, 112 S.Ct. 2482, 2492 (1992) (citation omitted). When the factual record supports conflicting inferences, the federal court must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution. Jackson, 99 S. Ct. at 2793; see also Brown, 130 S. Ct. at 674. The habeas court must "preserve `the factfinder's role as weigher of the evidence.'" Id. (citation omitted); see also Smith, 132 S. Ct. at 4 (it "is the responsibility of the jury — not the court — to decide what conclusions should be drawn from the evidence admitted at trial"). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial," and it requires only that they draw "`reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (per curiam) (citation omitted).

The Court must refer to the substantive elements of the criminal offense as defined by state law and look to state law to determine what evidence is necessary to convict on the crime charged. See Jackson, 99 S. Ct. at 2792 n.16; Juan H., 408 F.3d at 1275. Further, the Court must defer to the state court's interpretation of state law. See Bradshaw, 126 S. Ct. at 604; Hicks, 108 S. Ct. at 1428 & n.3.

Finally, Section 2254(d)(1) requires federal habeas courts to "apply the standards of Jackson with an additional layer of deference." Juan H., 408 F.3d at 1274; see also Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012) (per curiam) (describing habeas review of a sufficiency of the evidence claim as based on a "twice-deferential standard"); Johnson, 132 S. Ct. at 2062 ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference."). This doubly deferential standard sets a "high bar" for a petitioner, id., and limits the federal habeas court's inquiry to whether the state court's rejection of a sufficiency of the evidence challenge to a conviction was an objectively unreasonable application of Jackson. Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011); see also Johnson, 132 S. Ct. at 2062 (under Supreme Court precedent, a federal court may not grant relief simply because it disagrees with the state court's decision rejecting a sufficiency of the evidence claim; rather, relief is permitted only if the state court's decision was objectively unreasonable).

B. The Relevant Evidence

Detective Scott Casey, the lead detective in the Lompoc Police Department's gang unit, testified as a gang expert for the prosecution.14 (RT 1219.) He testified regarding the Crips gang, both in general and as the gang operated in Lompoc. (RT 1224-32.) He testified, inter alia, that Crips members typically refer to each other as "Cuz," misspell words that have the letters "C" and "K" next to each other (because Blood gang members use "CK" to stand for Crips Killer), cross through the letter "B," use a hand sign invoking the letter "C," use the word "loc" in their monikers, and have tattoos that reflect their county (805 area code) and/or lettering somehow indicating "Crips," such as "NHC" (for Neighborhood Crip"). (RT 1228-32.)

Detective Casey explained the roles that reputation, respect, and retaliation play in gang culture. He explained that gang members build their reputations by earning respect, which is earned through the commission of violent acts and certain crimes. Retaliation is required any time an act occurs that is perceived as disrespectful, even is it is something as nominal as a dirty look. In gangs, the concept of "putting in work" means to commit criminal activity on behalf of the gang and thereby to show the gang higher ups that the member believes in the gang and is not scared to do things for the gang and, thus, to gain more respect. Gang members who provide information to law enforcement are "snitches," and other gang members will try to dissuade such behavior through intimidation. (RT 1239-40.) In gang culture, a gang member does not testify in court; instead, gang members deal with their problems and each other outside the courtroom. (RT 1272.) With respect to Petitioner's call to Grant (discussed in connection with Ground One), in which Petitioner told Grant to "keep it street," Casey interpreted that phrase to mean that Grant should keep the issue out of the courtroom and not involve law enforcement. (RT 1240-43.) Casey understood the references in the letters discussed earlier to "keeping it 100" and "if it's all 100" to mean that all concerned should stay solid, not break during questioning, and not involve the court process. (RT 1243.)

Detective Casey opined that the primary activities of the Crips gang are murder, robbery. burglary, narcotic sales, and assault with a deadly weapon. (RT 1243-44.) The primary activity of the Central Coast Crips clique are narcotic sales, robbery, battery, and assault with a deadly weapon. (RT 1244.) Typically, sexual assault is "a no-no" in gang culture; a rapist is looked down upon and could be banished. (Id.)15

With respect to the predicate acts committed by Crips members, which were alleged in the case to show a pattern of gang activity for purposes of the Section 186.22(b)(1) allegation, Detective Casey testified about crimes committed by Crips members, including Esley Bailey, Michael Coleman, Jr. (codefendant Coleman's cousin), Marsander Rayford, Odel Seals, and Petitioner (two earlier drug trafficking convictions). (RT 1244-52.) The trial court subsequently instructed the jury that the court had taken judicial notice that these convictions were true and correct for purposes of the predicate act aspect of the Section 186.22(b)(1) enhancement allegation and that the jury should accept such convictions as fact. (RT 1458-59.) Casey identified various of these Crips members in photographs shown to him, including photographs depicting Petitioner and Coleman with those other men. (RT 1254-56, 1260.) Casey also identified letters Petitioner wrote to some of these other men while Petitioner was in prison serving a six-year sentence imposed for a conviction he sustained in 2005. (RT 1256-59.)

Detective Casey testified about his research into prior law enforcement contacts with Petitioner and Coleman. A 1996 field interview card showed that Petitioner was with Crips members Esley Bailey and Michael Coleman, Jr. — both persons who committed predicate offenses — at the time the men were stopped by the police, and Petitioner said his moniker was San Loc. (RT 1260-61.) A January 1998 field interview card documented a traffic stop, in which Petitioner was with Crips member Esley Bailey — also someone who committed one of the predicate offenses. (RT 1262.) A May 1998 field interview card documented that Petitioner — with Crips members including Marsander Rayford, another of the predicate offense perpetrators — sold cocaine base to an undercover officer, admitted his Crips membership, and stated that his moniker was Cyco. (RT 1262-63.) In August 2004, Petitioner was under investigation in connection with a drive-by shooting. (RT 1264.) In a March 2005 traffic stop, to the predicate offense involving Odel Seals, Petitioner was with Seals which led . (RT 1264.)

With respect to codefendant Coleman, Detective Casey identified a picture of Coleman throwing hand signs that stood for East Side Crips. (RT 1232.) In March 2003, Coleman was convicted of a vehicle theft that was found to be gang-related and ordered to register his gang affiliation with law enforcement. Coleman told the police that he was affiliated with the Future Connect Gang. (RT 1265-66.) Casey researched that gang on MySpace, and its MySpace account indicated the gang was a rap gang affiliated with the Crips gang, including by directing members to wear the color blue, call each other "Cuz," and act disrespectfully to the Bloods gang. (RT 1268-70.) In 2007, Coleman was involved in a police pursuit, and two Crips-affiliated men were with him in the car. (RT 1267.) Coleman's moniker is "Chuccy," and he has tattoos on his forearm that indicate a Crips affiliation. (RT 1268.)

Detective Casey opined that Petitioner was an active Crips member on the date of the crimes at issue. The detective based this opinion on Petitioner's past history, his contacts with law enforcement officers, the letters he authored to other gang members while in prison, his phone calls to Gloria Thomas from jail, his observed associations with others, his admissions to law enforcement officers of his Crips membership, and the crimes at issue. (RT 1275, 1277.) Detective Casey opined that Coleman also was an active member of the Crips gang at the time of the crimes at issue. Case relied upon Coleman's contacts with law enforcement officers, his associations, MySpace information (including photos in which Coleman is labeled Captain and Petitioner is labeled General, indicating that Petitioner is a higher up member of the gang and a shot caller), photographs of Coleman flashing gang signs, his tattoos, and letters Coleman sent to Petitioner. (RT 1277-79.)

Detective Casey further opined that the burglary and robbery at issue were committed for the benefit of the Crips street gang within the meaning of Section186.22(b)(1). He based this opinion upon all of the testimony and evidence in the case (including the letters and phone calls discussed in connection with Ground One). Casey opined that the crimes would benefit the gang, because a home invasion robbery is a violent act and, thus, enhances the respect for and reputation of the gang. In addition, Petitioner's letters indicated that the crimes benefitted the gang by generating money. (RT 1279-81.) Detective Casey also opined that the robbery and burglary were committed in association with the Crips gang, because Petitioner and Coleman, who were both admitted Crips members and were associating with each other at the time of the crimes, aided and abetted each other in committing the crimes. (RT 1282-83.) Detective Casey opined that the sexual assault crimes were not committed for the benefit of the Crips but were committed in association with the Crips gang, because Petitioner and Coleman associated with each other and aided and abetted each other in committing these crimes. (RT 1283-85.) Finally, Detective Casey opined that Coleman committed the robbery and burglary at the direction of the Crips gang. (RT 1286-87.)

Detective Casey opined that Troy Grant was affiliated with the Bloods gang. The detective based this opinion on his prior contacts with Grant, associations by Grant with others that the detective had observed, and the detective's conversations with other officers who knew Grant since he was a teenager. (RT 1271.)

C. The State Court Decision

The California Court of Appeal commenced its analysis of Ground Three by noting the standard of review it was applying, to wit, that the entire record was reviewed in the light most favorable to the judgment to determine if

(Lodg. No. 9 at 11-12; citations omitted.)

The California Court of Appeal next noted that, under California law, expert testimony is admissible and sufficient to prove the elements of Section 186.22(b)(1), although an expert's opinion must be based upon the evidence and not speculation or conjecture. (Lodg No. 9 at 12, citing, inter alia, People v. Albillar, 51 Cal.4th 47, 63 (2010), and People v. Gardeley, 14 Cal.4th 605, 617-18 (1996).) The state appellate court further observed that, under California law, more than mere gang membership is required to impose a gang enhancement pursuant to Section 186.22(b)(1), because gang members can commit crimes for purely personal reasons. (Id.)

The California Court of Appeal concluded that "the opinions of the prosecution's gang expert and the evidence supporting those opinions constitute substantial evidence supporting imposition of the gang enhancement." (Lodg. No. 9 at 12.) The state appellate court summarized the testimony by Detective Casey (id. at 12-13), as described above, and reasoned as follows:

(Lodg. No. 9 at 13-14.)

C. The State Court's Decision Is Entitled To Deference

Under California law, expert testimony is admissible on a subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." See California Evidence Code § 801(a); Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (noting that California law permits such expert opinion testimony). "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." California Evidence Code § 805; see also People v. Roberts, 184 Cal.App.4th 1149, 1193 (2010) (finding an "objection that the opinion of an expert coincides with the `ultimate issue' in the case" to be "untenable" due to California Evidence Code § 805). In California, prosecutors often, and permissibly, present gang expert testimony to help prove a Section 186.22(b)(1) allegation, including the ultimate issues to be resolved in connection with the enhancement. See, e.g., People v. Xue Vang, 52 Cal.4th 1038, 1044-52 (2011) ("Expert opinion that particular criminal conduct benefitted a gang is not only permissible but can be sufficient to support the Penal Code section 186.22(b)(1) gang enhancement.") (citing Albillar, 51 Cal. 4th at 63).

In Albillar, the California Supreme Court clarified California law regarding what evidence is sufficient to support a finding that a Section 186.22(b)(1) gang enhancement allegation is true. With respect to Section 186.22(b)(1)'s requirement that the crime benefit a criminal gang, the California Supreme Court held that: "Expert opinion that particular criminal conduct benefitted a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was `committed for the benefit of . . . a [] criminal street gang.'" Albillar, 51 Cal. 4th at 63 (citation omitted). As noted above, a federal habeas court must refer to the substantive elements of the criminal offense as defined by state law, look to state law to determine what evidence is necessary to convict on the crime charged, and defer to the state court's interpretation of state law. See Wainwright v. Goode, 104 S.Ct. 378, 382 (1983) ("the views of the state's highest court with respect to state law are binding on the federal courts"). In analyzing Ground Three, this Court is required to follow Albillar's interpretation of Section 186.22(b)(1). See Bradshaw, 546 U.S. at 76; see also Emery, 643 F.3d at 1215-16 (applying Albillar's "authoritative interpretation of section 186.22" to a habeas petitioner's claims).

As the California Court of Appeal observed, Petitioner and Coleman admitted they were members of a criminal street gang within the meaning of Section 186.22(b)(1). (Lodg. No. 9 at 12 n.7.) Thus, there can be no factual dispute that both men were Crips members when they committed the crimes at issue.

With respect to the robbery and burglary offenses, as the California Court of Appeal outlined, gang expert Casey explained the bases for his conclusion that the crimes were committed to benefit the gang to which Petitioner and Coleman admittedly belonged. These included: both men's use of the gang term "Cuz," during the crimes; Petitioner's expressed desire to obtain money for the gang;16 the positive effect that such a violent home invasion crime would have on the gang's reputation; and the teaching opportunity this afforded Petitioner, as the senior and higher level gang member, to provide to Coleman, the lower level gang member who had been taken under Petitioner's wing. Under Albillar, Casey's expert opinion testimony is sufficient to raise the inference that Petitioner's conduct was committed for the benefit of the Crips gang. See Albillar, 51 Cal. 4th at 63. No countervailing evidence was presented, and under Jackson, a single witness's testimony is sufficient to support a conviction or sentencing enhancement. See Bruce, 376 F.3d at 957-58. Moreover, the testimony of both Casey and Doe supported a finding that Petitioner and Coleman were acting in association for the gang. Petitioner placed Doe in a violent choke hold while Coleman held a baseball bat, and both men demanded money and weed. When Doe did not provide the location of these items, both men worked in concert to subdue her, hold her down, sexually assault her, and when she capitulated and gave them the location of the items demanded, they retrieved them. As these crimes were committed, Petitioner and Coleman referred to each other by the Crips term "Cuz." (RT 303-15.) A rational juror could have found, based on the testimony of Doe and Casey, that Petitioner committed these crimes to benefit his gang and/or that he and Coleman acted in association within the meaning of Section 186.22(b)(1).

With respect to the two sexual assault offenses, the evidence of record shows that Petitioner and Coleman worked together to commit these crimes. Jane Doe testified that the two men referred to each other as "Cuz," one placed her in a choke hold, they demanded money and weed, and she said, "I don't know, I don't know." Petitioner then knelt her over the bed and told Coleman to obtain something with which to tie Doe up. Coleman did so, and the two men attempted to tie her up. When they could not do so, one of the men said, "we don't have time for that," Doe felt her pants being pulled down, she felt both men's hands hold her down, and she was then raped and further sexually assaulted with a plastic object. After the assaults were completed, Petitioner again asked Doe where the money and weed was; this time she told him the location of the weed and money. Coleman went to retrieve the weed, and Petitioner took Doe with him to retrieve the money. (RT 309-15.) A reasonable trier of fact could conclude that the two sexual assaults were committed to force Doe to disclose the location of the money and weed and, thus, to aid Petitioner and Coleman in the commission of the robbery and burglary they were committing to benefit their gang. Thus, while, as the gang expert and other witnesses testified, rape is a crime that is not approved of by gangs, in this instance, it was a tool used to effectuate crimes that were committed to benefit the gang. A reasonable trier of fact could find, as the gang expert concluded, that Petitioner and Coleman were acting in association as Crips members when they committed the two sexual assaults on Doe and thereby extracted from her the information they needed to commit the robbery and burglary.

Finally, as to the crime of dissuading a witness, the oral statements and letters described in connection with Ground One were replete with statements by Petitioner and Coleman indicating their efforts to have friends and associates dissuade Grant and Doe from testifying and, instead, to allow the gang to resolve the matter through "street justice." In the same breath in which he referred to himself as "hoodsta" and "gangsta," Petitioner expressed his wish that his associate "g[e]t through to" Grant and Doe and persuade them to defer to "street justice," i.e., as Detective Casey testified, to let the gang handle the situation. In a telephone conversation with Grant, Petitioner expressly prevailed upon Grant to defer to gang-based street justice. Coleman's letters to Leekins similarly evidenced Coleman's attempt to have Leekins assist in having the situation handled through gang-related "street justice." Thus, there was substantial evidence from which a reasonable juror could conclude not only that Petitioner and Coleman sought to dissuade Grant and Doe from testifying and to persuade them to participate in a gang-based resolution, but also that such efforts were wholly intertwined with the gang membership of Petitioner and Coleman and were conducted for the benefit of and/or in association with a criminal street gang.

In sum, the state court did not unreasonably apply Jackson in concluding that there was sufficient evidence to support the jury's finding that all the crimes at issue were committed for the benefit of, or in association with, Petitioner's criminal street gang. In addition, the state court's finding that sufficient evidence supported Section 186.22(b)(1)'s separate specific intent requirement also was a reasonable application of the Jackson standard. As the California Court of Appeal explained, under California law, circumstantial evidence of intent is sufficient, and Section 186.22(b)(1) requires only that such intent be to promote, further, or assist criminal conduct by another gang member. The actions of Petitioner and Coleman — who worked in concert to threaten and intimidate Doe into disclosing the location of the money and weed they sought, including their joint conduct with respect to the sexual assaults — served as an ample evidentiary basis for concluding that they specifically intended to assist each other in the crimes they were committing.

Finally, with respect to Petitioner's assertions regarding the alleged inadequacies of gang expert Casey's opinion, the jury was free to accept or reject Casey's expert opinion, and as the state court noted, the jury was explicitly instructed that it was not required to accept his opinion. The jury is presumed to follow the instructions it is given. Penry v. Johnson, 532 U.S. 782, 799, 121 S.Ct. 1910, 1922 (2001); Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 732 (2000). While Petitioner disputes the sufficiency of gang expert Casey's opinion, the determination of whether the testimony by the gang expert was credible was the sole province of the jury. "When no improper law enforcement activity is involved, . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt." Perry v. New Hampshire, 132 S.Ct. 716, 721 (2012); see also United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996). Any credibility issues with respect to Casey's expert opinion were factors for the jury to consider under the instructions it received. See Jones v. Wood, 207 F.3d 557, 564 (9th Cir. 2000) (in the context of performing Jackson review, determining witness credibility is a "key question for a jury"). Indeed, a "jury's credibility determinations are . . . entitled to near-total deference under Jackson." Bruce v. Terhune, 376 F.3d 950, 957-59 (9th Cir. 2004) (noting further that, "[e]xcept in the most exceptional of circumstances, Jackson does not permit us to revisit credibility determinations"); see also Schlup v. Delo, 115 S.Ct. 851, 868 (1995) ("under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review"). The reviewing court "must respect the province of the jury to determine the credibility of witnesses." Walters, 45 F.3d at 1358.

Given the instruction it received and the verdict it reached, the jury necessarily found that the expert opinion testimony of Casey, along with Doe's testimony regarding what occurred, was sufficient to establish, beyond a reasonable doubt, that the elements of Section 186.22(b)(1) were met. Of course, Petitioner's jury was not required to draw such a finding, but given that enough evidence was presented to the jury to support such a finding, due process is satisfied. As a rational and reasonable jury could reach the true finding on the Section 186.22(b)(1) enhancement alleged, this Court is not permitted, under the Jackson standard, to find that the jury should have concluded otherwise. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Bruce, 376 F.3d at 957.

Petitioner has not shown that the state court's application of the Jackson standard to his sufficiency of the evidence claim was contrary to, or an unreasonable application of, that test. Accordingly, under Section 2254(d)(1), the Court is required to defer to the state court's decision with respect to Ground Three, and the claim must be, and is, DENIED.

* * * * *

For the reasons discussed above, Petitioner has not shown that the state court's rejection of Grounds One and Three of the Petition was either contrary to, or an unreasonable application of, clearly established federal law. Section 2254(d)(1), therefore, forecloses federal habeas relief. Accordingly, IT IS ORDERED that: (1) the Petition is denied; and (2) Judgment shall be entered dismissing this action with prejudice.

In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). The Court concludes that: reasonable jurists would not find its resolution of the Petition to be "debatable or wrong"; and the issues raised by Petitioner are not "adequate to deserve encouragement to proceed further." Slack, 120 S. Ct. at 1603. Accordingly, issuance of a certificate of appealability is not warranted and, thus, a certificate of appealability is DENIED.

IT IS SO ORDERED.