REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, 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
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 29, 2015. Respondent filed an Answer on February 18, 2016. Petitioner filed a "Traverse, etc." on March 25, 2016.
BACKGROUND
A jury found Petitioner guilty of one count of assault upon a peace officer with a deadly weapon or by means of force likely to cause great bodily injury, six counts of second degree robbery and one count of attempted second degree robbery (Reporter's Transcript ["R.T."] 2402-06; Clerk's Transcript ["C.T.] 369-80). The jury found true the allegations that Petitioner committed the offenses for the benefit of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1) (R.T. 2402-06; C.T. 369-80). Petitioner received a prison sentence of twenty years (R.T. 2708-11; C.T. 2708-10).
The California Court of Appeal affirmed (Respondent's Lodgment 8; see People v. Santos, 2014 WL 3401106 (Cal. App. July 14, 2014)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 10).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Santos, 2014 WL 3401106 (Cal. App. July 14, 2012). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
A. The Crimes (In Chronological Order)
1. June 14, 2011 (Count 4)
On June 14, 2011, between 10:00 and 11:00 a.m., Victor Villa was walking towards a lunch truck at Lanark Park in Canoga Park when he saw a PT Cruiser with four to six occupants drive past, turn around, and park. Villa turned his attention back to the lunch truck when a tall man, whom he later identified as Morales, approached him from the front. A smaller, younger man, whom Villa never identified but whom Santos admits was him, approached him from the side. Morales demanded Villa's wallet and threatened to jump him if Villa refused. The smaller man said nothing but showed Villa he had something black in his waistband. Fearing that the smaller man might have a gun, Villa gave Morales his wallet. Morales took the wallet and a cell phone Villa had in his hand. Morales and his accomplice walked to the PT Cruiser. Morales got into the front passenger seat while the smaller man entered the rear passenger seat. The driver, who was not identified, drove off.
2. June 16, 2011 (Counts 7, 8, and 9)
On June 16, 2011, at approximately 3:00 p.m., high school seniors Jesus S., P.O., and F.S. were on a street corner in North Hollywood waiting for a friend. P.O. noticed a silver PT Cruiser make a right turn and park down the street. After seeing two men get out of the car, P.O. turned his attention elsewhere.
At some point, the two men approached the three students from different sides of the street. The heavier man approached from the front, while the smaller man approached from behind. The heavier man asked, "Where you from?" F.S. and P.O. believed the person asking the question was a gang member, and F.S. understood the question to be asking if he was a member of a gang or affiliated with any gangs or crew. F.S., who was scared, answered, "Nowhere." P.O. and Jesus S. also were afraid. None of the students belonged to a gang. The heavier man said he had a gun. He demanded that the three students give all of their property to the smaller man, who said nothing. The three students complied, and the men then ran to the PT Cruiser and drove off.
All three victims subsequently identified Morales from a photographic lineup. Jesus S. circled Santos' picture after viewing a photographic lineup, stating that he resembled the person who took his belongings. F.S. and P.O. were unable to identify Santos. At the preliminary hearing Jesus S. and F.S. identified Santos, but P.O. did not. At trial F.S. and P.O. identified Santos as the robber to whom they handed their belongings. Jesus S. felt "more certain" that Santos resembled the smaller robber. They also identified a photo of the PT Cruiser as similar to the car driven by the robbers.
3. June 17, 2011 (Count 6)
On June 17, 2011, around noon, Brian Camacho was walking in Pacoima when he noticed a silver PT Cruiser stopped in the middle of the street. The passenger door was open but only the driver was inside. As Camacho continued walking Morales came up from behind, grabbed him, slammed him into a concrete wall, and said, "Give me everything you got. I have a gun." Morales tried unsuccessfully to remove Camacho's wallet from his back pocket and then hit him with a metal tool, chipping his tooth. Camacho hit his assailant in the face, causing him to drop the tool. Morales picked up the tool and ran to the PT Cruiser, which drove away. Camacho was unable to identify the driver.
4. June 21, 2011 (Counts 1, 2, and 3)
On June 21, 2011 Santos was living in Los Angeles with his girlfriend Sharon Gonzalez.1 That morning Santos asked to borrow Gonzalez's PT Cruiser because he wanted to visit his mother's grave. He left in the car around 7:00 a.m.
At approximately 2:30 p.m., Jesus Sanchez was near Sylvan Street and Beck Avenue in North Hollywood. He was walking home from work when Morales approached him on foot, asked "Do you want to die?" and directed Sanchez to give him everything he had. Sanchez, who felt threatened, gave his wallet to Morales, who also pulled off the gold chain that Sanchez was wearing around his neck. The driver of a car said to Morales, "Hurry up."2 Morales escaped in the car.
Sanchez went directly home to notify the bank where he had his accounts. He then left his house to replace the bus pass that had been in his wallet when Morales stole it. When he went back outside, Sanchez saw a number of police officers at the corner on Beck Avenue. Sanchez told one of the officers that he had been robbed. Sanchez later identified Morales as the person who robbed him but was unable to identify the person driving the car.
Later that same day, Herman Sherman was walking near Sylvan Street and Beck Avenue in North Hollywood when Morales and Santos approached him. Morales used a racial slur, announced that it was a robbery, and demanded Sherman's money. Morales also stated that he had a gun and was going to kill Sherman. At first Sherman thought it was a joke, but when Morales tried to grab him, Sherman pushed Morales. A struggle ensued during which Morales tried to take Sherman's watch. While the two men struggled, Santos "snatched" Sherman's keys from his pants pocket. Santos and Morales then fled in a PT Cruiser.
By coincidence, members of an undercover narcotics team from the Glendale Police Department were conducting surveillance nearby. From his parked car Detective John Balian saw a silver PT Cruiser approaching northbound and watched it from across the street. For 10 to 15 seconds, Santos and his passenger made eye contact with the detective. Eventually, the two men drove away.
Detective Balian, believing Santos and his passenger "were obviously up to no good" and intended to commit a crime, telephoned another detective and notified him that the officers should conduct surveillance on the two men in the PT Cruiser. Detective Balian watched as the car travelled around within a three to four-mile radius in the vicinity of North Hollywood. Eventually, Detective Balian saw the PT Cruiser stop and witnessed Santos and Morales rob Sherman and flee in the PT Cruiser.3 Detective Balian approached Sherman and identified himself as a police officer. Sherman told Detective Balian that he had been robbed and had seen the butt of a handgun. An unidentified man walked up to Detective Balian and handed him Sherman's keys that he had found in the middle of the street. Detective Balian notified the other officers, who continued the surveillance of the PT Cruiser.
Glendale Police Sergeant Louis Haloulakos and Officer Nelson Aguillon pursued the PT Cruiser. At one point during the pursuit, while Officer Aguillon was out of his car, he saw the PT Cruiser's reverse lights and the car came directly towards him in reverse at 20 to 25 miles an hour, forcing him to jump out of the way. The "momentum from the" car hit the officer's legs and pushed him into the door well of his car. The PT Cruiser also hit the open door of Officer Aguillon's car and bent it back. The PT Cruiser then stopped, and Officer Aguillon watched as Santos "mess[ed] with the gear shift and steering wheel." Fearing that Santos would try to hurt him again, Officer Aguillon "pointed at the center mass of [Santos'] back and fired one shot" through the rear driver's side door window, hitting him.
When the PT Cruiser came to a stop, Sergeant Haloulakos drove his car up to the PT Cruiser so that they were "nose to nose." The sergeant got out of his car, pointed his gun at Santos, and ordered him to raise his hands. Santos complied, and the officers removed him and Morales from the car.
Gonzalez subsequently learned that Santos and Morales had been arrested while driving her car. Gonzalez contacted the police and retrieved the car from impound. Inside the car was the cell phone she shared with Santos and that Santos had been using during and in the vicinity of the robberies.
B. The Prior Act of Vandalism
On August 13, 2010 Donald Fritz was working at a market in Lancaster. At approximately 8:30 p.m., while taking a cigarette break outside the market, Fritz saw a man spray painting on a wall directly across the street. The man, whom Fritz later identified as Santos, was bald and wore a brown shirt, long plaid shorts and a gold chain. Two other men were moving back and forth across the wall, acting as lookouts. After watching for about five minutes, Fritz notified the police.
Los Angeles County Sheriff's Deputy Michael Rose responded. Upon arriving he observed "fresh tagging" on a "large block wall" that surrounded an apartment complex. He believed the tagging was "fresh" because "there was an abundant amount of tagging on the wall" and he could smell the fresh odor of spray paint in the air." The words "Pac Town" had been painted on the wall. According to Deputy Rose the "tag" was associated with the "Pacas" street gang from Pacoima. Other graffiti on the wall in the same spray paint included the moniker "Rascal" and "MTCX3PWS661," which might be associated with the Midtown Criminals, a gang in Lancaster and Palmdale. Based on his experience, Deputy Rose understood that the Midtown Criminals and Pacas 13 had an alliance and cooperated with one another.
Deputy Rose approached the apartment in the complex that the tagger and other men had entered and could hear talking and loud music.4 When he knocked on the door, someone looked out a window next to the door. Someone then closed the blinds and turned off the lights and music. Deputy Rose continued to knock for more than one minute before someone answered the door and permitted him to enter the apartment. Deputy Rose saw five men, including Santos, a woman, and a small child, and he detained them all pending a field show-up. The deputy identified all five individuals, filled out an incident report, and took a picture of Santos, who was wearing a brown T-shirt, brown plaid shorts, brown shoes, and a black necklace. Santos had blue spray paint on his arms, fingernails, and clothing. Because none of the other men in the apartment had paint on their body or clothing, Deputy Rose believed Santos might be "Rascal."
C. The Prosecution's Gang Evidence
Los Angeles Police Officer Matthew Mitchell, a member of the West Valley gang enforcement detail, was assigned to monitor the Pacoima Criminals. According to Officer Mitchell, the Pacoima Criminals gang is "a subset of a parent gang called Pacoima or Pacas Trece." In the 1980's a number of members from the parent gang moved to Van Nuys and started the Pacoima Criminals. The Pacoima Criminals "immediately cliqued up" with a tagging crew5 called the Insane Suspects, which by the late 1980's or early 1990's became known as the Insane Suspects Clique of Pacoima Criminals. The Pacoima Criminals are commonly known as Insane Suspects. There are 30 documented Pacoima Criminals in the West Valley Division. Their principal activities are "selling drugs, committing robberies, vandalism, [and] witness intimidation." The most common tattoos displayed by members of the Pacoima Criminals are "I.S.," which stands for Insane Suspects, and "5150." Officer Mitchell explained that "5150" refers to "the Welfare and Institutions Code for insane or suicidal."
Officer Mitchell observed the tattoo of an "I" and "S," as well as the number "5150," on Morales' chest and opined that Morales was a member of the Pacoima Criminals. The officer noted that in 2008 and 2009 Morales admitted to other officers that he was a member of the Pacoima Criminals and that his moniker is "Cash." Based on Morales' admissions and his tattoos, Officer Mitchell believed that Morales was "a documented gang member." Officer Mitchell did not talk to any active members of Pacoima Criminals to determine if Morales was an active or former member of the gang. Although Santos did not have any tattoos, Officer Mitchell noted that not all gang members do.
Officer Mitchell observed that while gang members typically live within the territory of the gang, some live beyond its borders. He further noted that gang members sometimes commit crimes outside their gang territory. Indeed, a member of Pacoima Criminals who commits a robbery outside the gang's territory without identifying the gang might nonetheless benefit the gang by boosting the assailant's status in the gang to a higher level.
The prosecution's gang expert, Los Angeles Police Officer Timo Peltonen, was a member of the Foothill gang enforcement detail who had been following the Pacoima Trece or Pacoima Criminals street gang for five years. During this time, he interviewed members of the gang both in custody and on the street. He also investigated crimes they committed, as well as those committed against them.
Officer Peltonen testified regarding gang culture in general. He explained that a person who joins a gang is expected to commit crimes for the benefit of the gang. The more violent the crimes, the more the person's reputation and notoriety in the gang subculture grows. Gang members equate fear with respect. The more a person is feared the higher his status is within the gang. The gang also benefits by gaining the reputation of being a violent organization. Victims and witnesses fear retaliation and are less likely to come forward and aid in police investigations. Any crime of violence, such as robbery, "promotes and furthers the gang status both in the gang subculture and also in the communities where the gang's notoriety for violence is known." A gang also benefits monetarily from the crime of robbery.
One way a person signifies that he belongs to a gang is by using a moniker, which "is a second identity or nickname for a gang member." Another way of signifying gang membership is by means of tattoos. Gang members, however, do not automatically get tattooed.
Officer Peltonen further explained that a gang is "a ready-made man pool" and that its members commit crimes both within and outside the gang's territorial boundaries. Because a gang member gains status and reputation within the gang by committing violent crimes, gang members commit crimes in numbers. This ensures that there will be someone to bear witness to a particular gang member's actions and to report back to the gang.
With regard to gang hierarchy, Officer Peltonen explained that an associate occupies the lowest rung. An associate typically engages in lower level crimes, such as vandalism by graffiti, and then works up to serving as a lookout for other gang members. Graffiti marks territory, displays allegiances, and documents a gang's presence in an area. Vandalism enhances the reputation of the gang by marking gang territory. "It's a means of communicating threats or allegiances to other gangs. It might be something as simple as establishing that the gang was in this certain area." Vandalism in the form of graffiti is "a means of transmitting or transferring information. You can claim your own neighborhood, give a threat to a rival neighborhood, establish that this is your area." A person who commits crimes demonstrating allegiance to a gang can be considered an affiliate. On the other hand, within gang culture there is a penalty if someone who is not a gang member presents himself as one.
The question "where you from" is a common gang challenge. It announces that the inquirer is a gang member who wants to know if the person he or she is addressing is a gang member and, if so, what gang he or she belongs to. Such an inquiry or challenge indicates that something serious is about to happen. Therefore, a person who answers he is from "nowhere," signifying that he is not a gang member, may not necessarily escape harm.
Officer Peltonen further testified that Pacas is slang for Pacoima. Pacoima 13 or Pacas Trece started in the 1950's and is one of the oldest gangs in the City of Pacoima. It is primarily a Hispanic gang with approximately 300 documented members. Pacoima 13 either authorized or inducted the Pacoima Criminals gang and allowed it to become a criminal street gang. Pacas 13 and Pacoima Criminals "get along," "work with each other," and have no disagreements or rivalries. Officer Peltonen opined that the author of the graffiti on the wall in Lancaster was associated with the Pacas 13 street gang.
When presented with a hypothetical mirroring the facts of this case, Officer Peltonen opined that Morales committed the crimes as a member of the Pacoima Criminals, that Santos committed the crimes as an associate or affiliate, and that both of them acted for the benefit of the gang. The facts that Morales and Santos did not mention or call out Pacas 13 or Pacoima Criminals during the commission of the crimes and that, with one exception, they committed the crimes outside of the territories of Pacas 13 and Pacoima Criminals, did not change Officer Peltonen's opinion.
Officer Peltonen stated his opinion that Santos committed his crimes in association with a criminal street gang, explaining, "If one is a documented or admitted Pacoima Criminals gang member and one is either a full fledged member [or] an associate of the Pacoima 13 criminal street gang, then they committed the crime of robbery in association with each other." Officer Peltonen agreed that the two acted in association because the Pacoima Criminals broke off from Pacas 13.
D. The Defense Case
1. Family Life
Edith Sotelo became Santos' stepmother when Santos was three years old. The family lived in the City of San Fernando until 2006 when they moved to a house in Lancaster. The family never lived in Pacoima.
In 2008 Santos moved to Panorama City to be with his biological mother who was ill. He stayed with her until she died in February 2009. During his time in Panorama City, Santos became close to Morales, his cousin, who helped Santos with his mother. Sotelo did not know if Morales was involved in a street gang. After Santos' biological mother died, Santos moved back to Lancaster and, in January 2011, moved in with Gonzalez in Los Angeles.
According to Sotelo, Santos was not in a gang and did not associate with gang members. Santos never wore baggy clothes but instead wore "clean tight shirts" and fitted pants in his size. Santos and Morales had not been close when Santos attended high school in Lancaster. Santos rarely traveled to the San Fernando Valley because he did not have transportation.
Geronimo Herrera met Santos in Lancaster. The two became close friends and spent a lot of time together. Herrera never knew Santos to associate with any criminal street gang or tagging crew. Herrera never saw Santos wear any gang-related jerseys or hats.
2. Defense Gang Expert
Martin Flores testified as a gang expert on behalf of Santos. Flores interviewed Morales and learned that in 2004 Morales began to distance himself from gang life and to focus on being a parent. Flores also determined that there was a four-year period during which Morales had no reported contact with police.6 This gap buttressed Flores' conclusion that Morales had disassociated from gang life and was not an active gang member at the time of the offenses. Although Morales said he had "I.S." tattooed on his chest, he claimed that the initials stood for his daughter Isabella. Flores believed him at the time but, at trial, acknowledged that "I.S." stands for Insane Suspects. Morales failed to disclose his "5150" tattoo to Flores.
Although Flores did not interview any Pacoima Criminal members, he met with Santos' family and reviewed documents about Santos' involvement in this case. Flores focused on Pacas 13 and other gangs in the Pacoima area. Flores opined that Santos was not a member of a criminal street gang because he had tattoos, no gang moniker, no gang paraphernalia, no gang photos, no gang correspondence, no admissions of gang membership, and no history of attending gang funerals. Flores also could not locate Santos in any gang database. The only item Flores found was Santos' 2010 juvenile vandalism case, which was the only documented contact Santos had with law enforcement. Flores testified that the failure of the police to put Santos into the gang database after the graffiti incident suggested "that they probably did not feel comfortable putting him in that gang database based on the information they [had]."
With regard to the vandalism charge, Flores believed there were multiple people who could have been responsible for the graffiti. When asked, hypothetically, whether his opinion would change if Santos had been the sole person responsible for the graffiti on the wall, Flores testified, "I think it could change my opinion, sure."
Flores further explained that the inquiry "where are you from" can have several connotations depending on the context in which it is made. In a "street" context it "can be used as a strategy to throw somebody off." It can also be used in a "gang" context. The context "will vary depending on what factors are at play." Asking "where are you from?" also can be "used as a tactic to make sure you don't hit up the wrong person."
Flores did not believe there was sufficient evidence that Morales and Santos committed the robberies for the benefit of a particular criminal street gang. There was no evidence that the property and money they stole ever made its way to any gang. On the other hand, Flores admitted that two gang members "associating in the capacity of their gang" were committing crimes together could meet the association theory of the gang allegation.
(Respondent's Lodgment 15, pp. 3-13; see People v. Santos, 2014 WL 3401106 at *1-6) (original footnotes renumbered).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The admission of Petitioner's prior bad acts of vandalism allegedly denied Petitioner his rights to due process and a fair trial (Ground One);
2. The trial court allegedly violated Petitioner's constitutional right to have his guilt established beyond a reasonable doubt when the court gave a jury instruction concerning Petitioner's prior bad acts (Ground Two); and
3. The evidence allegedly was insufficient to support the jury's finding, pursuant to California Penal Code section 196.22(b)(1), that: (1) Petitioner committed the charged offenses "in association with" a criminal street gang; and (2) Petitioner committed the offenses with the specific intent to promote, further, or assist in any criminal conduct by gang members (Ground Three).
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, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). 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." Lockyer v. 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 to Petitioner's exhausted claims, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). 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). Where a state court rejects a federal claim presented to it without expressly addressing the claim, a federal habeas court generally must presume that the state court decided the claim on the merits. Johnson v. Williams, 133 S.Ct. 1088, 1094-96 (2013). If the state court declined to reach the merits of a federal constitutional claim, this Court must consider that claim under a de novo standard of review. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).
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).
DISCUSSION7
I. The Admission of Prior Bad Act Evidence Does Not Entitle Petitioner to Federal Habeas Relief.
Prior to the commencement of trial, the prosecutor made an offer of proof concerning the vandalism incident (R.T. 322). Petitioner's counsel objected on foundational grounds, stating he (counsel) did not know whether Petitioner was responsible for what appeared to have been gang graffiti (R.T. 323). The court ruled the evidence admissible on the ground that it was relevant to the gang allegation, specifically the allegation that Petitioner was a gang member or worked in cooperation with a gang (R.T. 324). The court also ruled that the evidence was not unduly prejudicial (R.T. 324).
Petitioner argues that the evidence was inadmissible under California Evidence Code section 352,8 prejudiced Petitioner's defense and constituted allegedly improper propensity evidence (Petition, ECF Dkt. No. 1, pp. 10-11).9 The California Court of Appeal ruled that Petitioner's counsel had waived the propensity evidence claim and the constitutional claim by failing to object on those grounds (Respondent's Lodgment 15, pp. 14-15; see People v. Santos, 2014 WL at *7). Petitioner asserted his propensity and constitutional claims to the California Supreme Court, which issued an unexplained denial. "Looking through" the California Supreme Court's unexplained denial,10 this Court deems the California Supreme Court also to have denied these claims on procedural grounds. Therefore, this Court's review is de novo. See Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
To the extent Petitioner contends the admission of this evidence violated state law, habeas relief is unavailable. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992) ("Federal habeas will not lie for errors of state law").
Moreover, "[t]he admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). The admission of evidence can violate due process "only when there are no permissible inferences the jury may draw from the evidence." Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (original emphasis; citation and internal quotations omitted); see also Estelle v. McGuire, 502 U.S. at 70 (because challenged evidence was "relevant to an issue in the case," its admission did not violate due process). Evidence of the prior vandalism was relevant to the gang enhancement allegations. See Lundin v. Kerman, 583 Fed. App'x 686, 687 (9th Cir. 2014), cert. denied, 135 S.Ct. 1531 (2015) (admission of graffiti evidence did not violate due process where "[t]here were possible inferences to be drawn from that evidence, such as that the crimes were gang-related") (citations omitted). Therefore, the admission of this evidence did not render Petitioner's trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. at 70. Accordingly, 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. Governing Legal Standards
"[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. at 71-72 ("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 relevant inquiry is `whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
Petitioner contends the trial court's instructions improperly permitted jurors to infer criminal propensity and to apply a diluted burden of proof (Petition, ECF Dkt. No. 1, pp. 15-17). Petitioner faults the trial court for instructing the jury using a modified form of CALCIM 375, as follows:
The people have presented evidence of other behavior by the defendant that was not charged in this case, that the Defendant had sprayed graffiti.
You may consider this evidence only if the people have proved by a preponderance of the evidence that the defendant in fact committed the uncharged act.
"Proof by a preponderance of the evidence" is a different burden of proof than proof beyond a reasonable doubt.
The fact is proved by a preponderance of the evidence if you conclude that it was more likely than not that the fact is true. If the people have not met this burden, you must disregard this evidence entirely.
If you decide that the defendant committed the uncharged act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to assist, further or promote criminal conduct by gang members and whether the defendant had a motive to commit the offenses alleged in this case. You should not use this evidence for any other purpose.
Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes or that the gang allegation is true. The people must still prove each charge and allegation beyond a reasonable doubt.
(R.T. 1853-54).
Petitioner raised his due process challenge to this instruction on appeal to the Court of Appeal, conceding the existence of controlling contrary case law (see Respondent's Lodgment 12, pp. 40-42). The Court of Appeal rejected this claim based on California Supreme Court precedent, citing, inter alia, People v. Reliford, 29 Cal.4th 1007, 130 Cal.Rptr.2d 254, 62 P.3d 601 (2003) (Respondent's Lodgment 12, pp. 15-16; see People v. Santos, 2014 WL 3401106, at *8). The California Supreme Court summarily denied Petitioner's due process challenge to the instructions (see Respondent's Lodgment 16, pp. 23-26; Respondent's Lodgment 17).
Petitioner's claim lacks merit. The challenged instructions did not permit the jury to convict Petitioner based on propensity. Indeed, the instructions expressly directed the jury not to do so. See Schultz v. Tilton, 659 F.3d 941, 944-45 (9th Cir. 2011), cert. denied, 132 S.Ct. 2436 (2012) (rejecting challenge to jury instruction allowing jury to infer disposition to commit sex crimes if jury found, by a preponderance of the evidence, that defendant had committed a prior sex crime; as here, the challenged instruction made it clear that jury could only convict defendant on proof beyond a reasonable doubt); People v. Reliford, 29 Cal. 4th at 1013 (same). The court instructed the jury that the prosecution was required to prove the elements of the offenses and the gang enhancement beyond a reasonable doubt and that whenever the court said that the prosecution must prove something, it meant that the prosecution "must prove it beyond a reasonable doubt unless I specifically tell you otherwise (R.T. 330; C.T. 1842). The court further told the jury that before jurors relied on circumstantial evidence to conclude that a fact necessary to conviction had been proved the jurors "must be convinced that the People [had] proven each fact essential to that conclusion beyond a reasonable doubt" (R.T. 1845; C.T. 233). The court told the jury that Petitioner had a right not to testify and that he could rely on the state of the evidence to argue that the prosecution had not proven the charges beyond a reasonable doubt (R.T. 324; C.T. 1851-52). The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000); see also Estelle v. McGuire, 502 U.S. at 74-75 (instruction which was modified version of predecessor of CALCRIM 375 did not violate due process by permitting jury to convict petitioner on prior bad act evidence, where court instructed jury that evidence could not be used to prove that petitioner "[was] a person of bad character or that he [had] a disposition to commit crimes"). In such circumstances, the instruction did not dilute the prosecution's burden of proof. See Schultz v. Tilton, 659 F.3d at 944-45; Smith v. Foulk, 2013 WL 5786606, at *14-15 (C.D. Cal. Oct. 28, 2013);
Moreover, even if the jury failed to follow the instructions and did consider the vandalism incident as evidence of Petitioner's propensity to commit crimes, no United States Supreme Court case has ever held that the admission of prior bad acts evidence to prove propensity violates a criminal defendant's federal constitutional due process right to a fair trial. See Estelle v. McGuire, 502 U.S. at 75 n.5 ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime"); see also Jennings v. Runnels, 493 Fed. App'x 903, 906 (9th Cir. 2012), cert. denied, 135 S.Ct. 96 (2014) (the Supreme Court has not held that propensity evidence violates Due Process, and the "absence of Supreme Court precedent on point forecloses any argument that the state court's decision [denying challenge to admission of propensity evidence] was contrary to or an unreasonable application of clearly established federal law") (citation omitted); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire); see generally Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where the Supreme Court has "expressly left [the] issue an `open question,'" habeas relief is unavailable).
For the foregoing reasons, the state courts' rejection of Petitioner's claim of alleged instructional error 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. 86, 101 (2011). Petitioner is not entitled to federal habeas relief on this claim.
III. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Gang Enhancement Does Not Merit Federal Habeas Relief.
A. Governing Legal Principles
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 unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 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).11 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, 132 S.Ct. 2, 4 (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.
B. Discussion
California Penal Code section 186.22(b)(1) authorizes a sentence enhancement for any person who is convicted of a violent felony which was "committed for the benefit or, 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 contends the evidence assertedly did not suffice to show that: (1) Petitioner committed the offenses in association with a criminal street gang; and (2) Petitioner committed the offenses with the requisite specific intent (Pet., ECF Dkt. No. 1, pp. 18-24).
1. Sufficiency of the Evidence to Show Petitioner Committed the Offenses in Association with a Criminal Street Gang
The Court of Appeal rejected Petitioner's challenge to the sufficiency of the evidence to show Petitioner committed the offenses in association with a criminal street gang (Respondent's Lodgment 15, pp. 16-21; see People v. Santos, 2014 WL 3401106 at *8-10). The Court of Appeal reasoned that, under California law, the commission of a crime by two or more gang members can support a finding that the defendant committed the crimes in association with a criminal street gang (Respondent's Lodgment 15, pp. 17-19; see People v. Santos, 2014 WL 3401106 at *9) (citing, inter alia, People v. Albillar, 51 Cal.4th 47, 67, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010)).
Under California law, "a trier of fact can rationally infer a crime was committed `in association' with a criminal street gang within the meaning of section 186.22, subdivision (b) if the defendant committed the offense in concert with gang members." People v. Leon, 243 Cal.App.4th 1003, 1021, 197 Cal.Rptr.3d 600 (2016) (citations omitted); see People v. Morales, 112 Cal.App.4th 1176, 1179, 5 Cal.Rptr.3d 615 (2003) ("evidence that defendant knowingly committed the charged crimes in association with two fellow gang members was sufficient to support the jury's findings on the gang enhancement"). In People v. Albillar, 51 Cal.4th 47, 67, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010) ("Albillar"), the defendant, his brother and his cousin, all gang members, committed sexual assaults against two minor girls. A gang expert testified that gang members committed crimes together to increase their chances of success and status, to train younger gang members, to bolster their confidence in one another and to obtain status by boasting about the crimes to others with the assurance of confirmation by their fellow perpetrators. The California Supreme Court held that this evidence adequately supported the conclusion that the defendant committed the crimes in association with the gang. Albillar, 51 Cal. 4th at 1071-73.
Petitioner contends that he and Morales purportedly "had no common gang membership that ensured they could rely on each other[`]s cooperation" or upon "a common gang's internal code or reputation" (Pet., ECF Dkt. No. 1, p. 22). However, the evidence showed that: (1) Morales uttered a gang challenge in the course of three of the robberies in which Petitioner participated; (2) some of the graffiti Petitioner sprayed on the wall referred to the Pacas street gang from Pacoima and some referred to the Midtown Criminals, a gang in Palmdale and Lancaster; (3) Morales was a member of the "Mid Town Criminals" gang, an affiliate of the Pacas; (4) the two gang members in the apartment in which Petitioner was found after the tagging incident were Mid Town Criminals gang members; (5) Petitioner lived primarily with his family in the San Fernando Valley (where Pacoima is located) from 1999 to 2006, when he and the family moved to Lancaster; and (6) in 2008, Petitioner returned to the San Fernando Valley for a year to stay with his ailing mother, who lived approximately ten to fifteen miles from Pacoima, then returned to Lancaster in 2009 (R.T. 943, 952, 966-69, 1304-06, 1539-40, 1543-44). A gang expert opined that Petitioner committed the offenses in association with a gang (R.T. 1313). This evidence sufficed to support the jury's conclusion that Petitioner committed the offenses in association with a criminal street gang. See People v. Vang, 52 Cal.4th 1038, 1048, 132 Cal.Rptr.3d 373, 262 P.3d 581 (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, subdivision (b)(1), gang enhancement.") (citation and internal quotations omitted); Albillar, 51 Cal. 4th at 63 ("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]' within the meaning of section 186.22(b)(1)") (citation omitted). Accordingly, the Court of Appeal's rejection of this claim 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. 86, 101 (2011). Petitioner is not entitled to federal habeas relief on this claim.
2. Sufficiency of the Evidence to Show Petitioner Committed the Offenses with the Specific Intent to Promote, Further or Assist a Gang or a Gang-Related Crime
Petitioner's petition for review to the California Supreme Court did not contain any claim that the evidence allegedly was insufficient to show that Petitioner committed the offenses with the specific intent to promote, further, or assist in any criminal conduct by gang members (see Respondent's Lodgment 16). Accordingly, this claim is unexhausted.12 However, for the reasons discussed below, this claim is not "colorable," so the Court should deny the claim on the merits. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (habeas court may deny on the merits an unexhausted claim that is not "colorable").
Petitioner presented this claim to the Court of Appeal (see Respondent's Lodgment 12, pp. 52-59). Although the Court of Appeal did not address the claim directly, this Court presumes that the Court of Appeal decided the claim on the merits. See Johnson v. Williams, 133 S.Ct. 1088, 1094-96 (2013). Accordingly, the AEDPA standard of review applies. See id. 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).
Petitioner contends that there was no evidence showing "that protection of `turf' or promotion of respect or fear of the gang enabled any other specific criminal activity of the gang," citing Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009), and Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005) (Petition, ECF Dkt. No. 1, pp. 23-24) (emphasis added).
In Briceno v. Scribner, 555 F.3d at 1080, the Ninth Circuit held that proof of a defendant's membership in a gang and the defendant's commission of a crime with a fellow gang member did not suffice to support a gang enhancement. The Briceno Court ruled that the evidence must show that the defendant committed the crime with the specific intent to aid or abet other gang-related crimes. Id.; see also Garcia v. Carey, 395 F.3d at 1103-04.
However, the California Supreme Court subsequently held that, for purposes of the section 186.22(b)(1) enhancement, the prosecution need only show that the defendant acted with the specific intent to promote, further or assist any criminal conduct by gang members, including the underlying crime charged. Albillar, 51 Cal. 4th at 66-67 (emphasis added). Expressly rejecting the interpretation of section 186.22(1)(1) adopted in Briceno v. Scribner and Garcia v. Clark, the Albillar court held that the statute does not require proof of specific intent to promote, further or assist a gang-related crime. Id. at 66-67; see also Emery v. Clark, 643 F.3d 1210, 1215 n.3 (9th Cir. 2011). Albillar is binding on this Court with respect to this state law issue. See Bonilla v. Adams, 423 Fed. App'x 738, 740 (9th Cir. 2011); (Albillar "binding on this court in federal habeas cases"); Emery v. Clark, 643 F.3d at 1215-16 (Albillar's interpretation of section 186.22 "authoritative" on federal habeas); see also 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). Under Albillar, "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." Albillar, 51 Cal. 4th at 68.
Here, the evidence described above, including the expert testimony, clearly supported the jury's conclusion that Petitioner committed the offenses with the requisite specific intent. Cruz v. Gipson, 566 Fed. App'x 587 (9th Cir.), cert. denied, 135 S.Ct. 89 (2014) ("Sufficient evidence also supports the inference that Cruz knew Perez [co-perpetrator] was a member of MS13 and intended to help Perez commit the robbery. [citation]. Nothing more is required to satisfy the specific intent requirement of California Penal Code section 186.22(b)(1)."); Bonilla v. Adams, 423 Fed. App'x at 739-40 (evidence that petitioner committed robbery with two gang members coupled with expert testimony explaining "how such [an] offense[ ] could be useful to the gang as a whole" sufficient to satisfy the specific intent element of gang enhancement). The Court of Appeal manifestly did not act unreasonably in rejecting this claim. See Harrington v. Richter, 562 U.S. at 101; 28 U.S.C. § 2254(d).
For the foregoing reasons, Petitioner's unexhausted challenge to the sufficiency of the evidence to show Petitioner committed the offenses with the requisite specific intent is not colorable. See Cassett v. Stewart, 406 F.3d at 623-24. 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; and (2) denying and dismissing the Petition with prejudice.
