REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, 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, a state prisoner represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 10, 2016, accompanied by a Memorandum ("Pet. Mem."). Respondent filed an Answer on March 30, 2016, asserting that Grounds Seven, Eight, Nine, Ten and Eleven of the Petition were unexhausted. Petitioner filed a Traverse on April 7, 2016, disputing Respondent's arguments and conditionally requesting leave to amend the Petition to delete any of the claims that the Court determined to be unexhausted.

On April 27, 2016, the Court issued an "Order Adjudicating Exhaustion Issues, Deeming Petition Amended and Requiring Supplemental Answer." The Court found to be unexhausted Ground Nine and that portion of Ground Eleven which was based on Ground Nine. The Court deemed the Petition to be amended to delete those Grounds.

On May 23, 2016, Respondent filed a Supplemental Answer to the Petition, as deemed amended by the Court's April 27, 2016 Order. On June 8, 2016, Petitioner filed a second Traverse.

BACKGROUND

The State charged Petitioner and co-defendants Taaj Martin, Norman Cole and Patrick Birdsong with the murder of Richard Juarez and the attempted murders of Richard De la Cruz, Chloe McCarty and Ashleigh Rodriguez (Clerk's Transcript ["C.T."] 817-26). In an initially separate case, the State charged Martin alone with the murder of William McKillian (C.T. 730-31). Prior to trial, the court granted the prosecution's motion to consolidate the two cases (Augmented Reporter's Transcript of Proceedings on November 4, 2010, at 22; C.T. 755).

A jury found Petitioner and his co-defendants guilty of the murder of Juarez and the attempted murder of De la Cruz (Reporter's Transcript ["R.T."] 7805-07, 7809-11, 7814-15, 7817-19; C.T. 1311, 1313, 1318-19, 1324-25, 1330-33, 1335-36). The jury acquitted Petitioner and Cole of the attempted murders of McCarty and Rodriguez, but was unable to reach a verdict on those attempted murder counts as to Martin and Birdsong, and the court declared a mistrial as to those counts (R.T. 7802-05, 7816-17, 7820; C.T. 1321-22, 1327-28, 1333-34, 1336-37). The jury found Martin not guilty of the murder of McKillian (R.T. 7813-14; C.T. 1331, 1338).

The jury found Martin, Birdsong and Cole guilty of street terrorism and found true as to all defendants the gang enhancement allegations in connection with the murder of Juarez and the attempted murder of De la Cruz (R.T. 7805-20; C.T. 1312, 1314-15, 1318, 1320, 1323-24, 1326).

The jury found not true the allegations that Martin and Birdsong personally and intentionally discharged a firearm causing Juarez' death and personally and intentionally discharged a firearm in the commission of the attempted murders (R.T. 7806, 7808; C.T. 1311, 1330). However, the jury found true the allegations that: (1) Martin and Birdsong personally and intentionally discharged a firearm within the meaning of California Penal Code section 12022.53(c); (2) Martin and Birdsong personally used a firearm within the meaning of California Penal Code section 12022.53(b); (3) a principal personally and intentionally discharged a firearm which caused Juarez' death within the meaning of California Penal Code sections 12022.53(d) and 12022.53(e)(1); and (4) a principal personally and intentionally discharged a firearm within the meaning of California Penal Code section 12022.53(b) and (e) (R.T. 7806-07, 7810; C.T. 1311-12).1 The jury also found true the firearm enhancements alleged against Petitioner and Cole (R.T. 7806-7820; C.T. 1318-19, 1324-25, 1330-38).

Petitioner admitted suffering a prior conviction qualifying as a "strike" within the meaning of California's Three Strikes Law, California Penal Code sections 667(b) — (i) and 1170.12(a) — (d) (R.T. 8112).2 Petitioner received a sentence of fifty years to life (R.T. 8118-19; C.T. 1386-88).

The California Court of Appeal ordered a correction to the abstract of judgment with respect to Cole's sentence but otherwise affirmed the judgment as to all defendants (Respondent's Lodgment 10; People v. Martin, 2014 WL 3736212 (Cal. App. July 30, 2014), cert. denied, 135 S.Ct. 1850 (2015)). The California Supreme Court summarily denied Petitioner's petition for review, as well as those of his co-defendants (Respondent's Lodgment 15).

SUMMARY OF RELEVANT TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Martin, 2014 WL 3736212 (Cal. App. July 30, 2014), cert. denied, 135 S.Ct. 1850 (2015). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).

Murder of William McKillian

Murder of Richard Juarez and Attempted Murder of Richard De la Cruz

(Respondent's Lodgment 10, pp. 3-4;3 see People v. Martin, 2014 WL 3736212, at *1-2).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The trial court's refusal to sever Petitioner's trial from the trial of Martin for the McKillian murder allegedly violated Petitioner's rights to due process and a fair trial;

2. The trial court allegedly erred by refusing to bifurcate the gang enhancement allegations;

3. The evidence allegedly was insufficient to support Petitioner's convictions for wilful, deliberate and premeditated murder and attempted murder on a vicarious liability theory;

4. The evidence allegedly was insufficient to support the gang enhancement allegations;

5. The evidence allegedly was insufficient to support the jury's finding that a principal personally and intentionally discharged a firearm proximately causing Juarez' death;

6. The trial court allegedly violated Petitioner's rights to due process and a fair trial by admitting assertedly unreliable cell tower evidence;

7. The trial court allegedly violated Petitioner's constitutional rights by admitting the prior testimony of Richard de la Cruz;

8. The trial court allegedly violated Petitioner's rights to due process and a fair trial by failing to investigate a juror's alleged use of a cell phone during trial; and

9. The cumulative effect of the above-described alleged errors assertedly violated due process.

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, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).

DISCUSSION

I. Petitioner's Challenge to the Trial Court's Refusal to Sever the McKillian Murder Count from the Counts Against Petitioner Does Not Merit Federal Habeas Relief.

A. Background

Following the trial court's consolidation of the Virginia Avenue Park shooting counts with the McKillian murder count, Petitioner's counsel filed a motion to sever the McKillian murder count (C.T. 857-68). The court denied the motion (Augmented Reporter's Transcript of Proceedings on December 1, 2010, May 3, 2011 and June 16, 2011, at 309-14; C.T. 894). The California Court of Appeal upheld this ruling, stating that: (1) the crimes were offenses of the same class;4 (2) the evidence was cross-admissible because the defendants' belief that the Santa Monica 13 gang was responsible for the McKillian murder was alleged to be the defendants' motive for the Virginia Avenue Park shootings; (3) nothing about the McKillian murder would tend to inflame the jury against those defendants, including Petitioner, who were not charged with involvement in that murder; and (4) the jury's acquittal of Martin for the McKillian murder and the jury's acquittal of Cole and Petitioner for the attempted murders indicated that the jury "was fully willing to separately consider the evidence relating to each of the defendants and each of the charges" (Respondent's Lodgment 10, at 18-19; see People v. Martin, 2014 WL 3736212, at *10).

B. Discussion

As the Ninth Circuit has recognized, there exists no "clearly established Federal law, as determined by the Supreme Court of United States," mandating the severance of joined charges. See Grajeda v. Scribner, 541 Fed. App'x 776, 778 (9th Cir. 2013), cert. denied, 134 S.Ct. 1899 (2014) ("The Supreme Court has not held that a state or federal trial court's denial of a motion to sever can, in itself, violate the Constitution.") (citations omitted); accord Hollie v. Hedgpeth, 456 Fed. App'x 685, 685 (9th Cir. 2011) (federal habeas relief unavailable for state court's joinder of different charges); see also Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir.), cert. denied, 562 U.S. 904 (2010) (joinder of defendants asserting mutually antagonistic defenses did not violate any clearly established Supreme Court law).

Indeed, the United States Supreme Court has held that "improper joinder does not, in itself, violate the Constitution." United States v. Lane, 474 U.S. 438, 446 n.8 (1986). The Supreme Court did state in United States v. Lane that misjoinder could violate the Constitution if misjoinder resulted in prejudice so great as to deny the defendant the constitutional right to a fair trial. See United States v. Lane, statement in United States v. Lane was mere dictum. See Collins v. Runnels, 603 F.3d at 1132 (United States v. Lane concerned the joinder standards under the Federal Rules of Criminal Procedure, and "no constitutional issue was before the court."). Supreme Court dictum does not constitute "clearly established" law for purposes of the AEDPA standard of review. See Howes v. Fields, 132 S.Ct. 1181, 1187 (2012); see also Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (Supreme Court has not set forth clearly established law supporting a misjoinder claim).

Accordingly, because no clearly established Supreme Court law forbade joinder of the McKillian murder count to the counts against Petitioner, Petitioner is not entitled to federal habeas relief on his claim of allegedly improper joinder. See Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [on the issue presented], it cannot be said that the state court "unreasonabl[y] applied clearly established Federal law.") (internal brackets and citation omitted); Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); 28 U.S.C. § 2254(d).

In any event, Petitioner has failed to demonstrate that the trial court's denial of the motion to sever rendered Petitioner's trial fundamentally unfair. Under Ninth Circuit law, undue prejudice from misjoinder exists only "if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000), cert. denied, 534 U.S. 847 (2001) and 534 U.S. 943 (2001) (citation omitted). Undue prejudice sometimes can arise when "joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible," or when a "strong evidentiary case" is joined with a "weaker one." Id. at 771-72. Petitioner "bears the burden to prove unfairness rising to the level of a due process concern." Park v. State of California, 202 F.3d 1146, 1149 (9th Cir.), cert. denied, 531 U.S. 918 (2000) (citation omitted).

Here, as the Court of Appeal indicated, evidence of the McKillian murder was relevant to the issue of Petitioner's motive and intent. See Comer v. Schriro, 480 F.3d 960, 985 (9th Cir.), cert. denied, 550 U.S. 966 (2007) (cross-admissibility of evidence significantly reduces potential of prejudice from joinder). Neither case was particularly weaker or stronger than the other. The trial court instructed the jury to consider the evidence separately as it applied to each defendant, to decide each charge for each defendant separately, and to consider the evidence of gang activity only for the limited purposes of: (1) deciding the issue of the defendants' intent, purpose or knowledge required to prove the gang-related crimes and enhancements charged; (2) deciding whether the defendants had a motive to commit the crimes; and (3) evaluating a witness' credibility or believability (R.T. 6712, 6742-43; C.T. 1285, 1303). See Zafiro v. United States, 506 U.S. 534, 539-41 (1993) (risk of prejudice from joinder of multiple defendants for trial is of the type that can be cured with proper instructions); New v. Uribe, 532 Fed. App'x 743, 744 (9th Cir.), cert. denied, 134 S.Ct. 701 (2013) (joinder not unconstitutional where "evidence of both murders was relatively strong and cross-admissible to prove identity or intent, and the trial court instructed the jury to consider each murder charge separately"). The jury is presumed to have followed the court's instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000). Furthermore, as the Court of Appeal recognized, the jury's acquittal of Martin on the McKillian murder count and the jury's acquittal of Petitioner on the McCarty and Rodriguez attempted murder counts show that the jury was able to, and did, consider the charges separately. See Park v. California, 202 F.3d at 1150 (jury's failure to convict on all counts "is the best evidence of the jury's ability to compartmentalize the evidence") (citations and internal quotations omitted). Petitioner has failed to demonstrate that the trial court's denial of his severance motion violated the Constitution. Accordingly, Petitioner is not entitled to relief on Ground One of the Petition.

II. The Trial Court's Failure to Bifurcate the Gang Enhancement Allegations Does Not Merit Federal Habeas Relief.

Prior to trial, Petitioner moved to bifurcate the gang enhancement allegations (C.T. 917-23). Following a hearing, the court denied the motion (Augmented Reporter's Transcript of Proceedings on December 1, 2010, May 3, 2011 and June 16, 2011, at 656-75; C.T. 1026). The Court of Appeal upheld this ruling, reasoning that the defendants, including Petitioner, had "identified no evidence that was admissible in the trial only by virtue of the gang enhancement allegations, but would have been inadmissible to establish the appellants' guilt of the substantive offenses," and that "the evidence of gang involvement and activity was central to the prosecution's proof of the appellants' motive for the Virginia Avenue Park shooting" (Respondent's Lodgment 10, p. 18; see People v. Martin, 2014 WL 3736212, at *9).

As indicated above, there exists no clearly established Supreme Court law supporting a misjoinder claim. See Runningeagle v. Ryan, 686 F.3d at 776-77. For this reason alone, Petitioner is not entitled to federal habeas relief on his challenge to the trial court's refusal to bifurcate the gang enhancement allegations. See 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. at 77; Moses v. Payne, 555 F.3d at 758-59.

In any event, Petitioner has not shown that the failure to bifurcate rendered Petitioner's trial fundamentally unfair. In California, a court has discretion to bifurcate the trial of a gang enhancement allegation. People v. Hernandez, 33 Cal.4th 1040, 1049-51, 16 Cal.Rptr.3d 880, 94 P.3d 1040 (2004). However, bifurcation is unnecessary where the evidence supporting the gang enhancement allegation is admissible with respect to the issue of guilt. Id. at 1049-50. Moreover, even if some of the evidence offered to prove the enhancement allegation is inadmissible at the trial on the charged offense, a court may deny bifurcation where additional factors favor a unitary trial. Id. at 1050.

Here, as the Court of Appeal held, the gang evidence was admissible with respect to the Virginia Avenue Park offenses in order to show intent and motive. See People v. Hernandez, 33 Cal. 4th at issues of motive and intent); see also Monarrez v. Alameda, 268 Fed. App'x 651, 652 (9th Cir.), cert. denied, 555 U.S. 859 (2008) (evidence of gang membership relevant to show motive); Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (in prosecution for murder, attempted murder and assault on an aiding and abetting theory, testimony of gang expert regarding retributive behavior between rival gangs relevant to demonstrate defendant's motive for participating in the alleged crimes); Rodarte v. Ducart, 2015 WL 9914180, at *8-9 (C.D. Cal. Nov. 2, 2015), adopted, 2016 WL 304292 (C.D. Cal. Mar. 24, 2016) (failure to bifurcate gang enhancement did not entitle the petitioner to habeas relief where gang evidence was relevant to issue of retaliatory motive for underlying crimes of murder and attempted murder); Morrison v. Denny, 2014 WL 2013393, at *7-8 (C.D. Cal. Apr. 8, 2014), adopted, 2014 WL 2011687 (C.D. Cal. July 7, 2014) (failure to bifurcate gang enhancement did not entitle petitioner to habeas relief where gang evidence was admissible to establish motive for retaliatory gang shooting).

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

III. Petitioner's Challenges to the Sufficiency of the Evidence Do 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).5 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. Murder and Attempted Murder Convictions

1. Background

Petitioner contends the evidence did not suffice to support his murder and attempted murder convictions, arguing that he "had nothing to do with the killings and lacked the requisite pre-crime knowledge and intent to be convicted on a aiding and abetting theory" (Pet. Mem., p. 35). Petitioner contends he "just happened to be sitting in his car near the shooting," and there assertedly was no evidence showing that Petitioner knew about the McKillian murder, that Petitioner and the co-defendants "spoke about killing anyone," or that Petitioner waited in the car while Birdsong and Martin allegedly killed Juarez (id., pp. 38-39). Petitioner relies on evidence that three field showups allegedly generated no identifications, that eyewitnesses assertedly excluded Petitioner (a white male) as the shooter, and that no DNA, fingerprints or gunshot residue evidence supposedly linked Petitioner to the murder (id., p. 39).

The Court of Appeal rejected Petitioner's claim, reasoning:

(Respondent's Lodgment 10, pp. 7-9; see People v. Martin, 2014 WL 3736212, at *4-5) (citation omitted).

2. Discussion

Under California law, "a person who aids and abets the commission of a crime is a `principal' in the crime, and thus shares the guilt of the actual perpetrator." People v. Prettyman, 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (1996). An aider and abettor "is a person who, `acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.'" Id. at 259. Factors that are probative on the issue of knowledge and intent include "presence at the scene of the crime, [and] companionship and conduct before and after the offense, including flight." People v. Mitchell, 183 Cal.App.3d 325, 330, 228 Cal.Rptr. 286 (1986); see also People v. Chagolla, 144 Cal.App.3d 422, 429, 193 Cal.Rptr. 711 (1983).

Here, the evidence amply supported the jury's conclusion that Petitioner aided and abetted the murder of Juarez and the attempted murder of De la Cruz, including evidence that:

From the above-described evidence, a rational juror could have concluded, beyond a reasonable doubt, that Petitioner aided and abetted the shootings at Virginia Avenue Park. See People v. Bishop, 202 Cal.App.3d 273, 281 n.6, 248 Cal.Rptr. 678 (1988) ("It has been consistently held that one who was present . . . to take charge of an automobile and to keep the engine running and to give direct aid to others in making their escape, is a principal in the crime committed") (citations omitted); People v. Hammond, 181 Cal.App.3d 463, 468 (1986) (defendant's "act of driving the getaway car was ample evidence of his intent to assist or facilitate [the perpetrator]"); see also Vasquez v. Keran, 2009 WL 256550, at *6 (C.D. Cal. Jan. 29, 2009) (evidence that the petitioner was driver of vehicle whose occupants shot at three men, killing one, sufficient to show the petitioner aided and abetted murder and attempted murder). Viewed in the light most favorable to the prosecution, the evidence showed that Petitioner was the getaway driver in the defendants' plan to shoot a rival gang member or members in retaliation for the McKillian murder. The evidence belies Petitioner's assertion that he "just happened to be sitting in his car near the shooting." Physical, fingerprint and DNA evidence connected Petitioner and Cole, occupants of the Honda, with Martin and Birdsong, the shooters. Although Petitioner points to contrary evidence and inferences, this Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution, and cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 132 S.Ct. 2, 6-7 (2011) (jury entitled to credit prosecution experts' testimony despite conflicting testimony by defense experts); McDaniel v. Brown, 538 U.S. 120, 131-34 (2010) (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).

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

C. Gang Enhancement

1. Primary Activities

California Penal Code section 186.22(b) authorizes the imposition of a sentence enhancement against "any person who is convicted of a felony 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. . . ." Section 186.22(e) defines a "criminal street gang" to mean "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated] criminal acts . . ., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." The enumerated criminal acts include assault with a deadly weapon and unlawful homicide. Cal. Penal Code §§ 186.22(e)(1), (3).

The prosecution's gang expert testified that the expert: (1) was familiar with the Venice Shoreline Crips for the past three years; (2) had personal contact with approximately 60 members of that gang; (3) was familiar with the area claimed by that gang and went to the Oakwood area every day he was at work; and (4) regularly spoke to detectives and to gang members concerning the activities of the gang, including criminal activities (R.T. 6020-26). The gang expert testified that the primary activities of the Venice Shoreline Crips "range[d] from vandalisms to narcotic sales, to street robberies, to assault with deadly weapons, and range up to even murder" (R.T. 6045).

Petitioner contends the evidence did not suffice to satisfy the "primary activities" element of section 186.22(b) because the prosecution's gang expert allegedly failed to testify that the Venice Shoreline Crips "consistently and repeatedly engaged in the requisite criminal conduct" (Pet. Mem., p. 48). The Court of Appeal ruled that the testimony of the prosecution's gang expert supplied substantial evidence to satisfy the "primary activities" element (Respondent's Lodgment 10, p. 15; see People v. Martin, 2014 WL 3736212, at *8).

The Court of Appeal's ruling was not unreasonable. The prosecution's expert testimony sufficed to show that the gang's primary activities included at least one of the enumerated offenses. See Cal. Penal Code §§ 186.22(e)(1), (3); People v. Lam Than Nguyen, 61 Cal.4th 1015, 1058, 191 Cal.Rptr.3d 182, 354 P.3d 90 (2015), cert. denied, 136 S.Ct. 1714 (2016) ("Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony. . . .") (quoting People v. Sengpadychith, 26 Cal.4th 316, 324, 109 Cal.Rptr.2d 851, 27 P.3d 739 (2001) (emphasis added; holding expert testimony sufficient); People v. Duran, 97 Cal.App.4th 1448, 1465, 119 Cal.Rptr.2d 272 (2002) ("The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities.").

2. Specific Intent

As indicated above, California Penal Code section 186.22(b)(1) requires proof that the defendant harbored the "specific intent to promote, further, or assist in any criminal conduct by gang members." In response to a hypothetical question based on the prosecution's evidence, the gang expert testified that a crime such as the Virginia Avenue Park shooting would benefit the gang and the gang members who participated in the shooting. This benefit assertedly would consist of the enhancement of the gang's reputation for violence, the engendering of respect by manifesting a willingness to kill in retaliation for perceived disrespect, and the enhancement of the shooters' status within the gang (R.T. 6076-79). Petitioner contends the expert's testimony was speculative, arguing that the evidence did not suffice to prove Petitioner's specific intent because the prosecution assertedly presented no evidence that the perpetrators wore gang clothing, shouted gang slogans or flashed gang signs (Pet. Mem., pp. 45-47).

Section 196.22(b) "applies to any criminal conduct, without a further requirement that the conduct be `apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." People v. Albillar, 51 Cal.4th 47, 66, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010) (original emphasis). "There is no requirement that the defendant act with the specific intent to promote, further or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." Id. at 67 (original emphasis; citations omitted). Here, the gang expert's testimony sufficed to show that Petitioner harbored the specific intent to "promote, further, or assist in any criminal conduct by gang members." See Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (deeming sufficient gang expert's testimony that the petitioner shot the victim because the victim had "disrespected" the petitioner's gang and that it was important for the petitioner to maintain the respect accorded to him as a gang member); People v. Vang, 52 Cal.4th 1038, 1048, 132 Cal.Rptr.3d 373, 262 P.3d 581 (2011) ("Expert opinion that particular criminal conduct benefited 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); People v. Albillar, 51 Cal. 4th at 68 ("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"); People v. Romero, 140 Cal.App.4th 15, 18-19, 43 Cal.Rptr.3d 862 (2006) (evidence sufficient to show crime was gang-related, where evidence showed defendant was a gang member, shootings occurred in territory and at hangout of rival gang, and gang expert testified that shootings were committed for benefit of defendant's gang, although evidence did not show victims were gang members or that anyone involved wore gang colors or used gang signs).

3. Conclusion

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

D. Firearm Enhancement

California Penal Code section 12022.53(d) mandates an additional and consecutive term of imprisonment in the state prison for 25 years to life for any person who, in the commission of enumerated felonies including murder and attempted murder, "personally and intentionally discharges a firearm and proximately causes great bodily injury or death." Section 12022.53(e)(1)(A) provides that section 12022.53(d) also applies to any principal in the commission of the section 12022.53(d) offense who "violated subdivision (b) of Section 186.22." See Garcia v. Yarborough, 2006 WL 6185670, at *10 (C.D. Cal. Apr.18, 2006), aff'd, 310 Fed. App'x 988 (9th Cir.), cert. denied, 558 U.S. 837 (2009) ("Subdivision (e) of section 12022.53 authorizes the imposition of the enhanced sentence under 12022.53(d) to aiders and abettors if a criminal street gang allegation is also pled and proven.") (citation omitted).

As indicated above, the jury found "not true" the allegations that Martin and Birdsong personally and intentionally discharged a firearm which caused Juarez' death and personally and intentionally discharged a firearm in the commission of the attempted murder of De la Cruz. However, the jury found true the allegations that a principal personally and intentionally discharged a firearm which caused Juarez' death and personally and intentionally discharged a firearm in the commission of the attempted murder of De la Cruz. Petitioner contends the jury's "not true" findings regarding the discharge of a firearm by Martin and Birdsong "prove[] that no principal personally and intentionally discharged a firearm proximately causing Juarez' death under [section] 12022.53(d)" (Pet. Mem., p. 77). Petitioner argues that "the jury never determined whether any of the four defendants discharged a firearm," and hence the evidence assertedly did not support the firearm enhancement (Pet. Mem., pp. 77-78).

The Court of Appeal rejected Petitioner's claim, reasoning that the verdicts showed the jury found beyond a reasonable doubt that "some principal in the offense — either Martin, Birdsong or both — discharged a handgun, but that it had some reasonable doubt as to which one of them did the actual shooting" (Respondent's Lodgment 10, p. 10; see People v. Martin, 2014 WL 3736212, at *5) (original emphasis). The Court of Appeal explained:

(Respondent's Lodgment 10, pp. 10-11; see People v. Martin, 2014 WL 3736212, at *5). The Court of Appeal also held that, although an aider and abettor must be convicted of the underlying offense to be subject to the sentence enhancements contained in California Penal Code section 12022.53, "there is no requirement that the principal who intentionally and personally discharged the firearm must be convicted of the offense, or even that he or she must be identified" (Respondent's Lodgment 10, p. 11; see People v. Martin, 2014 WL 3736212, at *5) (citing People v. Garcia, 28 Cal.4th 1166, 1173-74, 124 Cal.Rptr.2d 464, 52 P.3d 648 (2002)).7

Moreover, to the extent that the verdicts were arguably inconsistent, "inconsistent verdicts may not be used to demonstrate the insufficiency of the evidence for the count on which the defendant was convicted." United States v. Ares-Garcia, 420 Fed. App'x 707, 708 (9th Cir.), cert. denied, 132 S.Ct. 355 (2011) (citation and footnote omitted); see also United States v. Powell, 469 U.S. 57, 67 (1984) (review of challenge to the sufficiency of the evidence "should be independent of the jury's determination that evidence on another count was insufficient"). "[I]t is well established that inconsistent verdicts may stand, even when a conviction is rationally incompatible with an acquittal, provided there is sufficient evidence to support a guilty verdict." United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012) (citation, internal quotations and brackets omitted); accord People v. Lewis, 25 Cal.4th 610, 655, 106 Cal.Rptr.2d 629, 22 P.3d 392, cert. denied, 534 U.S. 1045 (2001). As discussed above, the evidence in the present case was sufficient to support the guilty verdicts. See People v. Federico, 127 Cal.App.3d 20, 33, 179 Cal.Rptr. 315 (1982) (evidence sufficient to support murder conviction despite negative finding on firearm allegation, which "was a determination more favorable to the defendant than the evidence warranted"). No clearly established Supreme Court law supports Petitioner's claim. See Xatruch v. Uribe, 2011 WL 3235740, at *1, 31-32 (C.D. Cal. May 18, 2011), adopted, 2011 WL 3235946 (July 27, 2011) (rejecting inconsistent verdict claim where jury found untrue allegations that the petitioner was armed with a firearm, but found true the allegation that the petitioner personally used a firearm).

The verdicts showed the jury found that Martin and Birdsong personally used, and personally and intentionally discharged, a firearm in the commission of the murder and that a principal personally and intentionally discharged a firearm causing death to Juarez. The "not true" finding on the allegation that Martin and Birdsong personally and intentionally discharged a firearm causing Juarez' death suggests only that the jurors may not have been able to decide whether it was Martin or Birdsong who fired the shot which killed Juarez. As the Court of Appeal recognized, under California law the jury could have found Petitioner guilty of the murder as an aider and abettor, and could have found true the firearm enhancement allegations as to Petitioner, even if the jury acquitted Martin and Birdsong of the firearm enhancements, as long as the jury found true the allegation that a principal had personally and intentionally discharged a firearm causing Juarez' death. See People v. Garcia, 28 Cal. 4th at 1173-75.

As the Court of Appeal ruled, Petitioner's reliance on People v. Camino, 188 Cal.App.4th 1359, 116 Cal.Rptr.3d 173 (2010), is unavailing (see Respondent's Lodgment 10, p.11; People v. Martin, 2014 WL 3736212, at *6). In People v. Camino, Camino and a fellow gang member, Palacios, were involved in a gunfight with a rival gang, resulting in Palacios' death by a bullet of unknown origin. People v. Camino, 188 Cal. App. 4th at 1363. Palacios was the only shooter in Camino's group. Id. A jury found Camino guilty of Palacios' murder on a provocative act theory, and found true the allegation that Camino vicariously had discharged a firearm within the meaning of California Penal Code sections 12022.53(c) and (c)(1). However, because the only shooter in Camino's gang was the victim, and Palacios could not be a principal in his own murder, the Court of Appeal held that the evidence failed to support a section 12022.53(e)(1) enhancement. People v. Camino, 188 Cal. App. 4th at 1380-81. By contrast, in Petitioner's case, either Martin or Birdsong (or both) qualified as a "principal" or "principals" in the shooting; the victims were not the defendants' accomplices.

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

IV. The Admission of the Testimony of a Custodian of Records Concerning Cell Tower Information Does Not Entitle Petitioner to Federal Habeas Relief.

A. Background

The following summary is taken from the California Court of Appeal's opinion. See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

(Respondent's Lodgment 10, pp. 20-22; see People v. Martin, 2014 WL 3736212, at *11-12 (footnote omitted).

Petitioner contends Leal's allegedly "unreliable and speculative" testimony exceeded Leal's expertise, purportedly in violation of due process (Pet. Mem., pp. 55-60). The Court of Appeal rejected this claim, stating that the evidence showed "it was well within [Leal's] training and expertise to explain what the telephone company records do and do not show concerning the locations of the cellular towers to which calls had been routed, and the times and durations of those calls" (Respondent's Lodgment 10, p. 23; see People v. Martin, 2014 WL 3736212, at *12).

B. Discussion

"`The 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 Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id. Therefore, Petitioner's challenges to the admission of Leal's testimony necessarily fail under the AEDPA standard of review. See 28 U.S.C. § 2254(d).

In any event, the Court of Appeal was not unreasonable in rejecting Petitioner's challenge to Leal's testimony. Leal testified that he had worked as a subpoena analyst at Sprint/Nextel for eight years (R.T. 4829). Leal had received on-the-job training, including small classes concerning the infrastructure and working of cell towers and daily training in interpreting records for law enforcement and in testifying regarding records and their accuracy (R.T. 4829, 4832). Leal previously had testified approximately fifteen times (R.T. 4829-30). Under these circumstances, the admission of Leal's testimony did not render Petitioner's trial fundamentally unfair. See United States v. Graham, 796 F.3d 332, 364-65 (4th Cir. 2015), adopted in relevant part, ___ F.3d ____, 2016 WL 3068018, at *1 n.1 (4th Cir. May 31, 2016) (en banc) (affirming admission of testimony of Sprint/Nextel custodian of records concerning connections to and operations of cell sites and conditions affecting a cellphone's connection to a particular tower). To the extent Petitioner contends the challenged testimony was "unreliable," "the potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair." Perry v. New Hampshire, 132 S.Ct. 716, 728 (2012) (citation omitted).

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

V. The Admission of De la Cruz' Preliminary Hearing Testimony Does Not Entitle Petitioner to Federal Habeas Relief.

A. Introduction

California's hearsay rule permits the admission of former testimony if: (1) the witness is unavailable; and (2) the party against whom the former testimony is offered was a party to the prior proceeding and had the right and opportunity to cross-examine the witness with an interest and motive similar to that which that party has at the present hearing. See Cal. Evid. Code § 1291(a)(2). California Evidence Code section 240 defines the term "unavailable as a witness" to include a situation in which the proponent of the absent witness' statement "has exercised due diligence but has been unable to procure his or her attendance by the court's process." Cal. Evid. Code § 240(a)(5).

Petitioner contends the trial court improperly admitted the preliminary hearing testimony of Richard de la Cruz following the court's determination that De la Cruz was "unavailable" to testify at trial. The Court of Appeal ruled that the trial court had not erred in finding De la Cruz unavailable and that the admission of De la Cruz' preliminary hearing testimony did not prejudice the defendants, including Petitioner (Respondent's Lodgment 10, pp. 32-34; see People v. Martin, 2014 WL 3736212, at *16-18).

B. Factual Background

1. Preliminary Hearing — December 10, 2009

During the preliminary hearing, the prosecutor told the court that Richard de la Cruz had been subpoenaed to testify but had said he would not appear (C.T. 23-24). The court issued a body attachment (C.T. 24). Later that afternoon, De la Cruz appeared and testified (C.T. 53-54). De la Cruz stated that he was at the park with Juarez, Rodriguez and McCarty when he heard shots coming from the parking lot (C.T. 55-56, 59). De la Cruz allegedly ran to the teen center (C.T. 56-57). De la Cruz said he told police officer Lozano that De la Cruz had seen nothing and did not "know who it was" (C.T. 60). Later in his testimony, De la Cruz admitted telling Lozano that De la Cruz allegedly had seen two Black males in their twenties (C.T. 62). He denied telling Lozano that the shooter wore a black shirt and grey hoodie (C.T. 63). De la Cruz first denied describing the other man to Lozano, but later said he had described the man as wearing a blue shirt (C.T. 63, 80).

De la Cruz denied telling Lozano that, when the two men walked up, Juarez said "Who are these tintos?" (C.T. 70-71, 74). De la Cruz said that Juarez said "Who are these fools?" (C.T. 71). He denied telling Lozano that one of the men said "What's up cuz" before the shooting (C.T. 64). De la Cruz denied being a self-admitted member of the Santa Monica 13 gang (C.T. 68). De la Cruz admitted he told Lozano that the shooter or shooters ran from the parking lot toward Pico after the shooting (C.T. 78). De la Cruz said that, when police took him to a show-up of two individuals whom police had in custody, De la Cruz told police those two people were not involved in the incident (C.T. 76). De la Cruz denied telling Lozano "[i]t was those shoelaces," a derogatory term for Venice Shoreline Crips (C.T. 78-79).

2. Due Diligence Hearing — August 31, 2011

On August 9, 2011, the first day of trial, the court again issued a body attachment for De la Cruz (C.T. 1037). On August 31, 2011, during trial, the court held a "due diligence" hearing concerning efforts to locate De la Cruz (R.T. 3966-67; C.T. 1108). Detective Hee Seok Ahn and Officer Alfonso Lozano testified at the hearing.

a. Hee Seok Ahn

Detective Hee Seok Ahn testified as follows:

b. Alfonso Lozano

Officer Alfonso Lozano testified as follows:

The trial court said that, based on the evidence then presented, the court was not ready to find that De la Cruz was unavailable, noting that efforts to find De la Cruz were ongoing (R.T. 4012).

3. Due Diligence Hearing — September 8, 2011

Detective Ahn and Officer Lozano testified at a further due diligence hearing on September 8, 2011.

At that time, Detective Ahn testified as follows:

Officer Lozano testified as follows:

The trial court then ruled that the prosecution had shown due diligence in attempting to locate De la Cruz, observing that the officers had made "more efforts in this case than I've seen in the vast majority of cases," and that it was clear that De la Cruz "does not wish to be here" and had been avoiding places at which he could be located (R.T. 5552-53). The court permitted the prosecution to introduce De la Cruz' preliminary hearing testimony (R.T. 5553, 5557-58; C.T. 1138).

C. Discussion

Petitioner contends the prosecution did not show due diligence because the prosecution assertedly should have subpoenaed De la Cruz' mother (Pet. Mem., p. 64). According to Petitioner, had the prosecution done so, the mother "could have produced De la Cruz" (id., pp. 64-65). Petitioner argues that California Penal Code section 13288 required that Detective Ahn serve the subpoena on a parent of De la Cruz, and that the court should have compelled the mother to come to court and give information concerning her son's whereabouts (id., pp. 61-62). The Court of Appeal rejected these arguments, ruling that: (1) any alleged noncompliance with section 1328 did not affect the diligence inquiry; (2) the defendants, including Petitioner, had not shown that additional efforts to locate De la Cruz "would have helped"; and (3) the evidence "amply" supported the trial court's determination of due diligence (Respondent's Lodgment 10, p. 32; see People v. Martin, 2014 WL 3736212, at *17). The Court of Appeal also deemed the admission of the challenged testimony harmless because it was "more or less consistent with the observations and testimony of other witnesses and in some respects helpful to the . . . defense" (Respondent's Lodgment 10, p. 33; see People v. Martin, 2014 WL 3736212, at *17).

The Confrontation Clause prohibits the admission of an out-of-court testimonial statement at a criminal trial unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59 (2004) ("Crawford"). Neither side disputes that De la Cruz' preliminary hearing testimony was "testimonial" hearsay within the meaning of Crawford, or that the defense had a prior opportunity to cross-examine De la Cruz (see C.T. 67-77 [defense cross-examination of De la Cruz]).

"The constitutional requirement that a witness be `unavailable' stands on separate footing that is independent of and in addition to the requirement of a prior opportunity for cross-examination." United States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (citations omitted). A witness is not "unavailable" for purposes of the hearsay exception for former testimony "`unless the prosecutorial authorities have made a good-faith effort to obtain [the witness'] presence at trial.'" Hardy v. Cross, 132 S.Ct. 490, 493 (2011) (quoting Barber v. Page, 390 U.S. 719, 724-25 (1968)); Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir. 1998); People v. Smith, 30 Cal.4th 581, 609, 134 Cal.Rptr.2d 1, 68 P.3d 302 (2003), cert. denied, 540 U.S. 1163 (2004) (noting good faith requirement of Barber v. Page is "similar" to due diligence requirement of California Evidence Code section 240(a)(5)). However, "the law does not require the doing of a futile act, and the extent of the effort the prosecutor must make is a question of reasonableness." United States v. Olafson, 213 F.3d 435, 441 (9th Cir.), cert. denied, 531 U.S. 914 (2000) (citation, quotations and brackets omitted).

In Ohio v. Roberts, 448 U.S. 56 (1980), abrogated on other grounds, Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the prosecution had made a good faith effort to locate an unavailable witness, despite the prosecution's failure to contact a social worker who might have been able to assist in finding the witness. Ohio v. Roberts, 448 U.S. at 75-76. The Court held that, although "[one], in hindsight, may always think of other things," the "great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralized any intimation that a concept of reasonableness required their execution." Id. at 76.

The United States Supreme Court also addressed the issue of diligence in locating a witness in Hardy v. Cross, supra. In that case, a kidnap and sexual assault victim testified at the petitioner's first trial prior to the grant of a motion for a mistrial. Hardy v. Cross, 132 S. Ct. at 491. Nine days prior to the retrial, the prosecutor informed the court that the witness could not be located. Id. at 492. The day before the retrial, the prosecutor moved to have the witness declared unavailable and to introduce her prior testimony. Id. The prosecutor told the court that after the first trial the witness, although "extremely frightened," had indicated her willingness to testify at the retrial, and that the prosecution had remained in "constant contact" with the witness and her mother. Id. However, approximately three weeks before the retrial, the witness had disappeared. Id. The witness' mother, father and brother told investigators they did not know the witness' whereabouts. Id. Investigators made personal visits to the witness' home and that of her father, and contacted the witness' parents and other family members. Id. Investigators also contacted the county medical examiner, the witness' school, the family of the witness' old boyfriend, the office of the state secretary of state, the welfare department, the morgue, the public health department, the jail, the post office, and immigration authorities. Id. at 492-93. The day before the retrial, the witness' mother told a detective that the witness had called two weeks previously, saying she did not want to testify and would not return to the area. Id. at 493.

The trial court admitted the prior testimony and the state court of appeals affirmed, ruling that the prosecution's efforts met the constitutional diligence standard. Id. On habeas review, the United States Court of Appeals for the Seventh Circuit disagreed, noting that investigators had not contacted the victim's current boyfriend and a school at which the victim once had been enrolled. Id. at 494. In an unanimous summary per curiam disposition, the United States Supreme Court reversed. Id. at 494-95. The Supreme Court held that, under the deferential AEDPA standard of review, the Seventh Circuit erred in deeming the state court of appeals' determination unreasonable. Id. The Supreme Court stated that the constitution did not "require the prosecution to exhaust every avenue of inquiry, no matter how unpromising." Id. The Court continued: "And, more to the point, the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to overturn a state court's decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken." Id. at 495.

Similarly here, this Court cannot deem unreasonable the state court's diligence determination on the basis of Petitioner's arguments that more could have been done. The exhaustive efforts to locate De la Cruz resemble those described in Hardy v. Cross and far exceed the efforts deemed deficient in Barber v. Page, 390 U.S. at 723 ("the State made absolutely no effort to obtain the presence of [the witness] at trial other than to ascertain that he was in federal prison outside Oklahoma"). Furthermore, no "clearly established" Supreme Court law requires the prosecution to attempt to subpoena a witness who has gone into hiding. See Hardy v. Cross, 132 S. Ct. at 494-95 ("the issuance of a subpoena may do little good if a sexual assault victim is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial"). Petitioner's suggestion that De la Cruz' mother would have revealed her son's whereabouts if only she had been compelled to come to court constitutes dubious speculation in light of the evidence that the mother repeatedly told officers she did not know her son's whereabouts. Although Petitioner points to other potential avenues of inquiry that purportedly could have been pursued in an effort to locate De la Cruz, the efforts that the officers did undertake were not unreasonable. See Hardy v. Cross, 132 S. Ct. at 494-95.5

Therefore, the Court of Appeal's rejection of Petitioner's Confrontation Clause claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United State Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim.

VI. Petitioner's Challenge to the Trial Court's Failure to Investigate a Juror's Alleged Use of a Cell Phone During Trial Does Not Merit Federal Habeas Relief.

A. Background

On the first day of trial, the prosecutor called witnesses who testified concerning the McKillian murder (R.T. 2130-2220). The witnesses did not provide any testimony concerning Petitioner. During a break, the prosecutor said that she had seen a juror "consistently on his phone" but that she did not know whether the juror was "texting or surfing the web" (R.T. 2224). There followed some joking comments made by the court and defense counsel that the likely subject of any web search was the presence of Minerva on the Great Seal of California (R.T. 2224). Neither the prosecutor nor defense counsel requested any further inquiry concerning the juror's alleged use of a cell phone. The court said it would admonish the jurors (R.T. 2224). When the jurors reentered the courtroom, the court said: ". . . I want to remind you, don't research Minerva or anything else while we're in session here. The phones stay put away, okay, while the court is in session" (R.T. 2224).

Petitioner faults the trial court for failing to investigate the juror's use of a cell phone, analogizing the situation to that of a sleeping juror (Pet. Mem., pp. 17-19). The Court of Appeal ruled that the situation "indicated at most a failure to adhere to the court's instructions concerning courtroom behavior (not unusual at the trial's outset). . . ." (Respondent's Lodgment 10, p. 39; People v. Martin, 2014 WL 3736212, at *21). The Court of Appeal observed that Petitioner sought no further inquiry, apparently satisfied with the court's admonishment to the jury, that there was no reason to doubt the effectiveness of that admonishment, and that the record did not show that the juror was unable to perform his duties during the remainder of the trial (Respondent's Lodgment 10, p. 39; People v. Martin, 2014 WL 3736212, at *21). The Court of Appeal further held that any error was "unquestionably harmless" because the incident occurred during the first day of trial during testimony which related to the McKillian murder, of which Martin was acquitted (Respondent's Lodgment 10, pp. 39-40; People v. Martin, 2014 WL 3736212, at *21).

B. Discussion

"Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982) ("Smith"). "A court confronted with a colorable claim of juror bias must undertake an investigation" that is "reasonably calculated to resolve doubts raised about the juror's impartiality." Dyer v. Calderon, 151 F.3d 970, 974-75 (9th Cir.) (en banc), cert. denied, 525 U.S. 1033 (1998); see Remmer v. United States, 347 U.S. 227 (1954) ("Remmer"); Smith, 455 U.S. at 215-17. However, "Remmer and Smith do not stand for the proposition that any time evidence of juror bias comes to light, due process requires the trial court to question the jurors alleged to have bias." Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003), cert. denied, 543 U.S. 864 (2004).

The Ninth Circuit has held that a state court's failure to hold a sua sponte evidentiary hearing into the issue of juror bias or misconduct is not contrary to, or an unreasonable application of, any clearly established federal law as determined by the United States Supreme Court. Sims v. Rowland, 414 F.3d 1148, 1152-56 (9th Cir.), cert. denied, 546 U.S. 1066 (2005). Therefore, the trial court's failure to hold a sua sponte hearing in Petitioner's case to inquire concerning an allegedly inattentive juror cannot entitle Petitioner to federal habeas relief. See 28 U.S.C. § 2254(d).

Furthermore, even if a juror is found to have been inattentive during portions of the trial, "a new trial may not be required if [the juror] did not miss essential portions of the trial and was able fairly to consider the case." United States v. Barrett, 703 F.2d 1076, 1083 n.13 (9th Cir. 1983). Petitioner has not shown a colorable claim of juror inattentiveness or misconduct sufficient to warrant further inquiry. None of the defense attorneys sought investigation at the time of the incident, and none argued that the juror had been using the cell phone during an "essential portion" of the trial. Petitioner, who was present at trial, has not alleged that he saw any juror displaying inattentiveness during any portion of the trial, much less during any "essential portion." Hence, Petitioner has not shown any need for further inquiry or any violation of Petitioner's right to a fair trial. See United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987) (presence of sleeping juror did not violate constitution where the "testimony missed during the nap" was "insubstantial"); Zarate v. Chrones, 2009 WL 866858, at *9 (C.D. Cal. Mar. 25, 2009) (even assuming trial court erred in failing to conduct further inquiry into whether juror was sleeping during trial, any error was harmless, where petitioner failed to show juror "missed essential portions of the trial" or was "unable fairly to consider the case"). Accordingly, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011).

Additionally, because Petitioner has failed to show that any allegedly inattentive juror missed "essential portions" of the trial, Petitioner has failed to show that the absence of further inquiry had any "substantial and injurious effect" on the verdict within the meaning of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) ("Brecht") (forbidding a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case). The testimony adduced prior to the prosecutor's revelation concerning a juror's alleged use of a cell phone largely concerned the McKillian murder. Witness Lekeidra Hodnett did testify that the Venice Shoreline Crips was a Venice gang, that McKillian was a member of that gang, that she had seen Martin, Birdsong and Cole around in Oakwood and Venice and that Cole's nickname "on the streets" was "T-Dogg" (R.T. 2151-53, 2179). However, there was no testimony concerning Petitioner. To the extent that Hodnett's testimony showed Martin, Birdsong and Cole were gang members, the prosecution introduced substantial evidence, after the judge's admonishment to the jury concerning alleged cell phone use, that those three defendants were gang members and/or gang associates (see R.T. 3097-99, 3103-04, 3128-29, 3341, 3344, 3351-52, 3391-93, 3423-24, 3443, 3450-51, 3458-59, 3461-64, 3621-22, 3628-29, 3633, 6031-35, 6044-45, 6058-60). Accordingly, the failure to investigate the juror's alleged use of a cell phone was harmless under the Brecht standard. For all of these reasons, Petitioner is not entitled to federal habeas relief on this claim.

VII. Petitioner's Claim of Cumulative Error Does Not Merit Federal Habeas Relief.

"While the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal, habeas relief is warranted only where the errors infect a trial with unfairness." Payton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S.Ct. 426 (2012). Habeas relief on a theory of cumulative error is appropriate when there is a "`unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert. denied, 133 S.Ct. 424 (2012) (citation omitted). Here, no such symmetry of otherwise harmless errors exists. Accordingly, the state court's rejection of Petitioner's cumulative error claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this claim.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.