SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Gabriel Gonzales, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges seven grounds for habeas relief: (1) the trial court improperly refused to sever counts related to Petitioner's co-defendant; (2) the prosecutor improperly divulged Petitioner's juvenile court file; (3) jury instruction error; (4) insufficient evidence;
Petitioner and three co-defendants, Emmanuel Toscano ("Toscano"), Hilario Aguero ("Aguero"), and Fernando Garcia-Santos ("Garcia-Santos") were charged with and tried together before a jury for crimes that were committed over the course of two days, August 28, 2010 and April 30, 2011.
Ramzee Johnson ("Johnson"), an African American man in his mid-thirties, lived with his family in a predominately Hispanic neighborhood in northeast Bakersfield, California. At approximately 3:00 a.m. on August 28, 2010, Johnson left his apartment to walk to the market.
Shortly after leaving his apartment, Johnson saw Aguero and Francisco Castro ("Castro") standing about a block and a half away from him. When Aguero and Castro started walking towards him, Johnson became nervous and turned around to walk back to his apartment.
Aguero and Castro caught up to Johnson, stood in front of him, and started asking him "gang questions" like "where are you from?" and "where you at?" Johnson replied that he was "not from anywhere" and stated he lived on the street where they were standing and that they were in front of his residence.
Castro pulled out a .25-caliber, semiautomatic firearm and Johnson heard a clicking sound, indicating the gun had been cocked. Believing he was about to be killed, Johnson grabbed for the gun. The gun fired as soon as he grabbed it, but the shot missed him. Johnson twisted the gun out of Castro's hand and fired back at Castro. Aguero and Castro fell to the ground and then quickly got up and ran away. Johnson fired the gun in their direction several times until he heard a click and the gun appeared to be empty. Johnson called 911 and the police arrived.
When the police arrived, individuals in front of a nearby residence yelled at the officers that their friends were inside, shot and bleeding. Officers found Aguero and Castro inside the residence, both with gunshot wounds.
Aguero and Castro were transported to the hospital for treatment. When a police officer returned to the hospital two days later to transport Aguero to jail for booking, the officer discovered that nursing staff had accidentally released him from custody. The police could not locate Aguero prior to the events of April 30, 2011.
On April 30, 2011, Gerardo V. ("Gerardo") was fatally shot in a church parking lot in west Bakersfield, California. The parking lot was located next to a restaurant where Gerardo and some of his high school friends were attending a quinceañera.
At trial, the prosecutor argued that the shooting was an act of gang-related retaliation for a shooting that occurred six days earlier on April 24, 2011. On that day, the perpetrators shouted either "Westside" or "Southside" and shot at one of Petitioner's co-defendants, Toscano, and his brother, Jacob Toscano ("Jacob"). Jacob was injured.
Toscano told a deputy that responded to the scene that he and his brother were walking home from a 7-Eleven on April 24, 2011, when a car pulled up next to them. Several African American males exited the car and shot at Toscano and his brother. When the assailants shouted "Southside," Toscano responded by "gangbanging back at them" and yelling "Hillside."
In the days after the April 24, 2011 shooting, Melina M. ("Melina"), a 16-year-old who knew Toscano overheard Toscano talking about Jacob being shot. Toscano appeared very angry and she heard him say "something about the Westside."
On the afternoon of April 30, 2011, Melina saw Toscano and invited him to attend her friend's quinceañera. Petitioner's co-defendant, Aguero, was standing with Toscano at the time Melina invited Toscano. Toscano, Petitioner, and the other co-defendants showed up at the restaurant where the quinceañera was being held, and Melina went out to meet the men.
Melina became upset with Toscano when he started leading the others in his group in "pretending" to be members of the Westside Bakers gang. Melina knew Toscano was actually an "Eastsider" and member of the rival Loma Bakers gang. Toscano and his friends were shouting "Westside" and directing Westside hand signals towards other men at the quinceañera, who were socializing around the restaurant and in an adjacent minimarket. Toscano warned Melina in front of the others not to tell anyone that his group was from "the East." He also showed her that he was armed by lifting his shirt and exposing the handle of a firearm tucked inside his waistband.
Melina asked Toscano to leave and went back inside the restaurant. From inside the restaurant, she saw Petitioner and his three co-defendants leave. The men crossed in front of the restaurant and then headed towards the church parking lot. The murder victim, Gerardo, and three of his friends were in the church parking lot waiting to get into a car. Petitioner and his co-defendants surrounded Gerardo and his friends.
Led by Toscano, the group asked Gerardo and his friends where they were from. Gerardo's friends responded that "we don't bang." Maintaining the pretense that they were West Side Bakers, Toscano and his group started making derogatory comments about Eastsiders and asked Gerardo's group where they could find some Eastsiders.
Eventually, both groups shook hands and Petitioner's group appeared to be preparing to leave. Gerardo and his friends got into their car, with Gerardo in the front passenger's seat. The front passenger-side door was still open, when Toscano said "Keep it Westside," to which Gerardo replied, "I'm Westside, too."
When Gerardo stated he was Westside, Petitioner came up to the car and asked Gerardo what he had said. Gerardo repeated that he was from the Westside too, Petitioner replied, "You're not from my hood," and challenged Gerardo to get out of the car and fight him.
Petitioner's co-defendants were saying things to "pump up" Petitioner, including: "Just fight him. Just fight him." Gerardo's friends told him to just be quiet and started the car up to leave; however, they could not drive away without hitting someone in Petitioner's group, who had all surrounded the car.
While recollections differed as to the details of events, Gerardo's group remembered seeing Petitioner reach into the car and grab Gerardo's cell phone from his hands or from his lap. As Petitioner grabbed the cell phone, someone heard him call Gerardo a "bitch" and say "give me your fucking phone."
Gerardo begged Petitioner to return his phone. Petitioner responded by saying something to the effect that he would return Gerardo's phone, but first Gerardo would have to get out of the car and fight him. Petitioner's group continued to challenge Gerardo to get out of the car and fight with Petitioner.
Remaining inside the car, Gerardo continued imploring Petitioner to return his cell phone and repeating that he did not want to fight Petitioner. Gerardo also expressed some confusion, asking Petitioner why they were supposed to be fighting when they were from the "same hood."
Petitioner reached into the car again and grabbed Gerardo's hat from off his head. Gerardo told Petitioner to keep the hat, but given him back his phone. Gerardo finally closed his door and said, "I'm going to call the big [homeys]."
Toscano walked back up to the car and opened Gerardo's door. Toscano then pulled out the gun and shot Gerardo. After shooting Gerardo, Petitioner and his group ran away together towards a nearby alley, shouting something as they ran. Meanwhile, Gerardo got out of the car and started running toward the restaurant. Gerardo collapsed outside the restaurant and died shortly thereafter from the gunshot wound to his left shoulder.
The pathologist who performed the autopsy explained that Gerardo suffered extensive blood loss due to the laceration of vital organs, including a major vein in his hear and the upper lobes of both his lungs.
At trial, Kern County Sheriff's Deputy Richard Hudson ("Hudson") testified as a gang expert for the prosecution. Hudson opined that, at the time of their offenses, Petitioner and his co-defendants were all members of, and active participants in, the Loma Bakers criminal street gang.
Presented with hypotheticals based on the August 2010 and April 2011 incidents underlying the charged offenses, Hudson opined the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. With respect to the gang-benefit of the April 2011 offenses, Hudson opined that the scenario presented was an act of retaliation and explained:
Regarding his opinion that the offenses were committed in association with a criminal street gang, Hudson specifically testified:
Harlan Hunter ("Hunter"), a private investigator, testified as a gang expert on behalf of Petitioner. Hunter opined that on April 30, 2011, Petitioner was not a member of, or an active participant in, the Loma Bakers criminal street gang.
Assuming the same hypothetical facts based on the April 2011 incident, as those addressed by the prosecution's gang expert, Hunter opined that the shooting was a "personal incident" and was
Harlan further opined:
At trial, the court gave a jury instruction regarding aiding and abetting that is relevant to the case at bar. As read to the jury, CALCRIM No. 400 stated:
On April 11, Petitioner was convicted of first degree premeditated murder, with robbery and gang special circumstance findings (Cal. Penal Code §§ 187, 189, 190.2(a)(17), (22)); second degree robbery (Cal. Penal Code § 211); shooting at an occupied motor vehicle (Cal. Penal Code § 246); and active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). With regard to the murder, robbery, and shooting into an occupied vehicle counts, the jury found true the allegations that a principal discharged a firearm during the crime causing death. (Cal. Penal Code §§ 12022.53(d), (e)(1)). Petitioner was sentenced to life without the possibility of parole, plus twenty-five years to life.
On August 27, 2015, the Court of Appeal for the Fifth Appellate District ("Court of Appeal") affirmed Petitioner's conviction.
On January 9, 2017, Petitioner filed a first amended petition for writ of habeas corpus before this Court. Respondent filed a response on May 17, 2017 and Petitioner filed a reply on July 24, 2017.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
In his first ground for habeas relief, Petitioner contends the trial court erred when it denied his motion to sever the counts against co-defendant Aguero that related to the August 28, 2010 shooting, from his counts related to the April 30, 2011 shooting. (Doc. 17 at 25.) Petitioner admits that joining the counts met "the legal requirements of joinder[; however], the joinder was highly prejudicial," because it was only based on "gang allegations." Id. (citing People v. Miller, 50 Cal.3d 954, 987 (1990); People v. Stitely, 35 Cal.4th 514, 531 (2005)). Respondent counters "the United States Supreme Court has never clearly held that improper joinder of charges violates the Constitution," and the state court's rejection of the claim was not contrary to clearly established Supreme Court law. (Doc. 23 at 27.)
The Court of Appeal rejected Petitioner's claim, finding:
(Lodged Doc. 13 at 11-14.)
To the extent Petitioner's claim involves the trial court's misapplication of California's laws regarding severance, the claim is not cognizable on federal habeas review, because it involves only an alleged error in state law. "It is not the province of a federal court to reexamine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Habeas relief is not available for an alleged error in the application of state law. Id. at 68.
Petitioner's federal due process challenge to the trial court's refusal to sever these claims also fails, because the United States Supreme Court "has not held that a state or federal trial court's denial of a motion to sever can" violate constitutional rights. Grajeda v. Scribner, 541 F. App'x 776, 778 (9th Cir. 2013), cert. denied, 134 S.Ct. 1899 (2014). Indeed, the Supreme Court has held that "[i]mproper joinder does not, in itself, violate the Constitution." United States v. Lane, 474 U.S. 438, 446 n.8 (1986).
However, the Supreme Court has stated that "misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." Id. The Ninth Circuit has held this statement from Lane is only dicta. Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Consequently, Lane does not set forth a governing legal principle, and does not constitute clearly established federal law, with regard to when severance is constitutionally mandated. Id.; see also Carey v. Musladin, 549 U.S. 70, 74 (2006) (restricting "clearly established federal law" under § 2254 to holdings of the Supreme Court, rather than dicta). For these reasons, the Court of Appeal's rejection of Petitioner's severance claim could not have been an unreasonable application of clearly established federal law.
Prior to Collins, the Ninth Circuit held undue prejudice from misjoinder existed only "if the permissible 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). "In evaluating prejudice, the Ninth Circuit focuses particularly on cross-admissibility of evidence and the danger of `spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). The risk of prejudice increases "whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible." Sandoval, 241 F.3d at 772.
Here, the Court of Appeal reasonably concluded that Petitioner suffered no prejudice from the trial's court decision not to sever the counts against Aguero from counts against Petitioner. As the Court explained, the testimony of the gang expert, who described "the defendants' gang contacts with law enforcement," was cross-admissible. (Lodged Doc. 13 at 12.) Specifically, evidence from either crime would have been admissible in both cases to show that the defendants were active participants in a criminal street gang, the crimes were carried out to further the activities of the gang, and to show the crimes were committed for the benefit of, at the direction of, or in association with the gang.
The Ninth Circuit was also concerned that joinder would allow a weak case to join a strong one. However, the case against Petitioner was not weak. Eyewitnesses and videotape established Petitioner's involvement in the murder of Gerardo. This evidence was sufficient to support the charges, even without the evidence from the April 30, 2001 incident.
Finally, the jury was instructed to consider the evidence as applied to each defendant separately and decide each individual charge for each defendant separately, pursuant to CALCRIM No. 203.
In his second ground for habeas relief, Petitioner alleges the prosecutor violated California Welfare and Institutions Code § 827 ("§ 827") by improperly revealing Petitioner's juvenile court file. (Doc. 17 at 27.) Section 827(a)(1) provides, "a case file may be inspected only by the following: (E) The attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor."
The prosecutor obtained juvenile reports from a search of Petitioner's residence and gave the reports to counsel for Petitioner's co-defendants and Hudson, the gang expert. Id. At trial, Petitioner moved to exclude the reports, arguing the prosecutor failed to obtain permission from the juvenile court to distribute them. Id. Respondent counters that the United States Supreme Court has never held there is a right of privacy for juvenile records; therefore, the Court of Appeal's decision is not contrary to clearly established Supreme Court precedent. (Doc. 23 at 32-33.)
The Court of Appeal denied Petitioner's claim, holding:
Section 827, subdivision (a)(1) provides, in relevant part:
(Lodged Doc. 13 at 14-16.)
To the extent Petitioner's claim involves the trial court's violation of § 827, the claim is not cognizable on federal habeas review because it involves only an alleged error in state law. Estelle, 502 U.S. at 71-72 ("It is not the province of a federal court to reexamine state court determinations of state law questions."). Here, the Court of Appeal held the trial court "correctly concluded no violation of the statute occurred because . . . none of the persons with whom the prosecutor shared copies of [Petitioner's] probation reports was required to petition the juvenile court for an order before inspecting" the file. (Lodged Doc. 13 at 15-16.) This Court will not reexamine the accuracy of the state court's analysis of state law. Estelle, 502 U.S. at 67-68 ("it is not the province of a federal habeas court to reexamine state court determinations on state law questions"); Langford v. Day, 110 F.3d 1380, 1389 1389 (9th Cir. 1997) ("We accept a state court's interpretation of state law, . . . and alleged errors in the application of state law are not cognizable in federal habeas corpus.").
Petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford, 110 F.3d at 1389 (citing Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994)). Here, Petitioner alleges his "federal due process right to a fair trial and to procedural due process" were violated. (Doc. 17 at 30) (citing U.S. Const. amend. V, XIV; Estelle, 502 U.S. at 73; Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Matthews v. Eldridge, 424 U.S. 319, 333 (1976); however, case law Petitioner cites does not support his due process claim. See Donnelly, 416 U.S. at 643 ("When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes on them."); Matthews, 424 U.S. at 333 ("This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest."). Petitioner has not cited any federal authority to support a due process right to privacy for juvenile court records.
Section 827 establishes a right to confidentiality of juvenile records under state law, but there is no corresponding federal due process right. Rigsby v. Cty. of Los Angeles, Civ. No. 11-02766, 2011 WL 13143544, at *3 (E.D. Cal., Aug. 2, 2011), aff'd 531 F. App'x 811 (9th Cir. 2011) ("There is no `right of privacy' for juvenile records expressly guaranteed by the United States Constitution."); Maldonado v. Sec'y of California Dep't of Corrs. & Rehab., Civ. No. 06-2696, 2007 WL 4249811, at *5 (E.D. Cal. Nov. 30, 2007) (Section 827 "could not purport to bind the federal courts. . . . [C]omity required that the state law be respected if at all possible. . . ."). Because there is no clearly established Supreme Court precedent, the Court of Appeal's decision was not contrary to or an unreasonable application of clearly established federal law. Petitioner is not entitled to habeas relief and the Court recommends denying Petitioner's claim.
In his third ground for habeas relief, Petitioner alleges that CALCRIM No. 400,
Generally, claims of instructional error are questions of state law and are not cognizable on federal habeas review. "[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72 (1991) (citing Marshall v. Lonberger, 459 U.S. 422, 438, n.6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules")). A petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford, 110 F.3d at 1389 (citing Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994)).
To prevail on a collateral attack of state court jury instructions, a petitioner must do more that prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Instead, the petitioner must prove that the improper instruction "by itself so infected the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 72 (internal citations omitted). Even if there were constitutional error, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
A federal court's review of a claim of instructional error is highly deferential. Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). A reviewing court may not judge the instruction in isolation but must consider the context of the entire record and of the instructions as a whole. Id. The mere possibility of a different verdict is too speculative to justify a finding of constitutional error. Henderson, 431 U.S. at 157. "Where the jury verdict is complete, but based upon ambiguous instructions, the federal court, in a habeas petition, will not disturb the verdict unless there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Solis v. Garcia, 219 F.3d 922, 927 (9th Cir. 2000) (quoting Estelle, 502 U.S. at 72) (internal quotation marks omitted).
If a trial court has made an error in an instruction, a habeas petitioner is only entitled to relief if the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776) (internal quotation marks omitted). A state prisoner is not entitled to federal habeas relief unless the instructional error resulted in "actual prejudice." Id. A violation of due process occurs only when the instructional error results in the trial being fundamentally unfair. Estelle, 502 U.S. at 72-73; Duckett v. Godinez, 67 F.3d 734, 746 (9th Cir. 1995). If the court is convinced that the error did not influence the jury, or had little effect, the judgment should stand. O'Neal v. McAninch, 513 U.S. 432, 437 (1995).
The Court of Appeal denied Petitioner's claim, holding that he forfeited the claim because he failed to object to the instruction at trial. In the alternative, the Court of Appeal found any mistake in the instruction harmless.
(Lodged Doc. 13 at 35-39.)
A federal court cannot review claims in a petition for writ of habeas corpus if a state court denied relief on the claims based on state law procedural grounds that are independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). "A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements." Park v. California, 202 F.3d 1146, 1150 (2000).
A petitioner procedurally defaults his claim if he fails to comply with a state procedural rule or fails to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (citing O'Sullivan v. Boerckel, 562 U.S. 838, 844-45 (1999)). The procedural default doctrine applies when a state court determination of default is based in state law that is both adequate to support he judgment and independent of federal law. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). An adequate rule is one that is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). An independent rule is one that is not "interwoven with federal law." Park, 202 F.3d 1146 at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).
When a state prisoner has defaulted on his federal claim in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of an alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
In California, "an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court." People v. French, 43 Cal.4th 36, 46 (2008) (citing People v. Saunders, 5 Cal.4th 580, 589-90 (1993)). The rule is in place because "[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." Id. (quoting People v. Vera, 15 Cal.4th 269, 276 (1997) (internal quotation marks omitted)). This forfeiture rule applies to a Petitioner who fails to object to a jury instruction. People v. Virgil, 51 Cal.4th 1210, 1260 (2011) "Defendant's failure to object to the instruction below . . . forfeits the claim on appeal."). Indeed, in this case, the Court of Appeal noted published opinions that held "a challenge to the `equally guilty' language in former versions of CALCRIM No. 400 is forfeited by a failure to object and/or request clarifying language at the time of trial." (Lodged Doc. 13 at 36) (internal citations omitted).
The Ninth Circuit has held that California's contemporaneous objections doctrine is clear-well-established, and has been consistently applied. Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002.) This bar is independent and adequate, and applied consistently by California courts; therefore, Petitioner's claim is procedurally barred. Vansickel v. White, 166 F.3d 953 (9th Cir. 1999).
The Court of Appeal found an independent and adequate state procedural ground. Therefore, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Petitioner does not argue "cause for the procedural default," but instead argues there was actual prejudice. Petitioner states he was prejudiced by the instruction "because there was evidence [Petitioner] was not guilty of the same crime as co-[defendant] Toscano." (Doc. 17 at 31.) To show prejudice, a petitioner "must show `not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original).
Here, the Court of Appeal determined that Petitioner was not prejudiced by the "equally guilty" language in CALCRIM No. 400, because "[t]he challenged version of CALCRIM No. 400 did not contain an incorrect statement of law." (Lodged Doc. 13 at 36.) The California Supreme Court has found the "equally guilty" phrase to be accurate "in all but the most exceptional circumstances." See, e.g., People v. Samaniego, 172 Cal.App.4th 1148, 1164-65 (2009) ("[A]n aider and abettor could be guilty of a greater offense than the direct perpetrator, . . . [thus] an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state. Consequently CALCRIM No. 400's direction that `a person is equally guilty of the crime . . .," while generally correct in all but the most exceptional circumstances, [can be] misleading.") (internal citations and quotation marks omitted) (emphasis in original); People v. Nero, 181 Cal.App.4th 504, 517-18 (2010).
The Court of Appeal noted that "reversible error stemming from" this language has only been found where "jurors informed the trial court that they were confused by the instruction, and the court failed to provide adequate clarification in response to their inquiries on the subject." (Lodged Doc. 13 at 37) (internal citations omitted). That is not the case here, as the jury did not have questions about the instruction, and the jury is presumed to follow the instructions they are given. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
For the Court to grant habeas relief based upon an error in a jury instruction, there must be a "reasonable likelihood" the jury applied the instruction in a way that violated the Constitution. Solis, 219 F.3d at 927 (quoting Estelle, 502 U.S. at 72). The instruction may not be construed in isolation, but rather, in the context of all the other jury instructions and the trial record as a whole. Estelle, 502 U.S. at 72. The Court of Appeal found that considering all of the instructions given to the jury, including CALCRIM No. 401, the jury was "properly informed . . . as to the intent required for aider and abettor culpability." (Lodged Doc. 13 at 39.) Based on the foregoing, Petitioner is unable to show there was a "reasonably likelihood" the jury misapplied the instruction. Therefore, the Court recommends denying the claim.
In his fourth ground for habeas relief, Petitioner alleges there was insufficient evidence to convict him of robbery and first degree murder. Specifically, Petitioner alleges there was insufficient evidence to support: (1) the force or fear element of the robbery conviction and robbery-murder special circumstance finding; (2) the jury's finding of guilt on the substantive gang crimes and true findings on the gang special circumstances allegations and the gang enhancement; and (3) first degree murder conviction. Respondent counters that the Court of Appeal's rejection of Petitioner's claims was reasonable because there was evidence to support the jury's findings.
To determine whether the evidence supporting a conviction is so insufficient that it violates the constitutional guarantee of due process of law, a court evaluating a habeas petition must carefully review the record to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). It must consider the evidence in the light most favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Jackson, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
After AEDPA, a federal habeas court must apply the standards of Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The United States Supreme Court has explained the highly deferential standard of review in habeas proceedings, noting that Jackson
Cavazos v. Smith, 565 U.S. 1, 3-4 (2011).
In Petitioner's first insufficient evidence claim, he contends there was insufficient evidence to convict him of second degree robbery and the robbery-murder special circumstance. (Lodged Doc. 13 at 32.) He alleges there was insufficient evidence that Gerardo's hat and phone were taken by force or fear or that it was done with the intent to permanently deprive Gerardo of his property. Id. at 32-34.
The Court of Appeal rejected Petitioner's claim:
(Lodged Doc. 17-18.)
Petitioner presents the same argument before this Court as before the Court of Appeal and is asking this Court to reweigh the evidence in his favor. However, on habeas review, this Court does not reweigh the evidence presented at trial. Instead, the Court must review the record to determine whether a rational trier of fact could have found Petitioner took Gerardo's hat and phone with force or fear and that it was done with the intent to permanently deprive Gerardo of his property.
The Court of Appeal set forth the statute defining robbery and determined that the evidence satisfied each element, principally the third and fourth elements which are disputed by Petitioner. Petitioner argues the Court of Appeal "engage[d] in its own speculation" when it found Petitioner used force or fear to retain the phone and hat. (Doc. 17 at 33.) Petitioner's argument is unavailing given the evidence in the record.
The force or fear needed to commit a robbery does not have to occur only at the time of the taking. People v. McKinnon, 52 Cal.4th 610, 686 (2011). The force or fear used to retain the property also qualifies. People v. Gomez, 43 Cal.4th 249, 256 (2008). Consequently, a theft becomes a robbery "if [a] perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." Id. at 257.
The "force" required "is such force as is actually sufficient to overcome the victim's resistance. . . ." People v. Anderson, 51 Cal.4th 989, 995 (2009). However, it must be more than the force that is "necessary to accomplish the mere seizing of the property." Id. For "fear," an express threat is not required; mere intimidation is sufficient. People v. Morehead, 191 Cal.App.4th 765, 775 (2011). "So long as the perpetrator uses the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator's specific words or actions designed to frighten, or by circumstances surrounding the taking itself." Flynn, 77 Cal. App. 4th at 772.
Here, Petitioner and his co-defendants shouted gang slogans and made gang hand signals at Gerardo and his friends. Petitioner's group harassed and intimidated Gerardo and his three friends who were younger and smaller—throughout the night. When Gerardo's group tried to leave the parking lot in their car, Petitioner's group, composed of six men surrounded the car and continued to harass and intimidate Gerardo's group.
Co-defendant Toscano challenged Gerardo to fight, which Gerardo refused. Toscano continued to pressure Gerardo to fight, and the Petitioner and his co-defendants encouraged the behavior. When the driver of the car attempted to back his car up, Petitioner's group blocked his path.
After harassing Gerardo's group and pressuring Gerardo to fight, Petitioner called Gerardo "a bitch," and grabbed Gerardo's phone from his lap. Gerardo begged for his phone back, but Toscano stated he would only get it back if Gerardo fought Petitioner. Petitioner then took Gerardo's hat off his head. As Gerardo tried to shut the car door and leave, Toscano shot him.
Considering these facts, force was used to take and retain the property. Petitioner said "[g]ive me your fucking phone," before grabbing Gerardo's phone off his lap. Petitioner also used force to retain both the phone and the hat. Petitioner's group intimidated and harassed Gerardo and ultimately challenged him to a fight to get his property back. The evidence also reveals that Petitioner used fear to take and retain Gerardo's property. The group surrounded the car, and taunted and challenged Gerardo.
The Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the robbery conviction and robbery special circumstance.
In Petitioner's second insufficient evidence claim, he contends there was insufficient evidence to support the jury's finding of guilt on the substantive gang crimes and true findings on the gang special circumstance allegations and the gang enhancements. (Doc. 17 at 43-45.) Petitioner alleges the prosecutor "failed to offer evidence which specified exactly who, when, where, and under [what] circumstances gang crimes were committed," and presented insufficient evidence to prove the "primary activities" element of the statutory definition of a criminal street gang. Id. at 44.
Petitioner was alleged to be a member of the Loma Bakers gang and convicted of being an active participant in a criminal street gang (Cal. Penal Code § 186.22(a)). Further, the jury found true the allegation that the murder was committed while Petitioner was an active member of the gang (Cal. Penal Code § 190.2(a)(22)). As to the murder, robbery, and shooting into an occupied vehicle counts, the jury found true the allegations that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)).
Pursuant to California Penal Code § 186.22(f), "`criminal street gang' means 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 of the criminal acts enumerated. . . ." As the Court of Appeal stated, to establish a group is a "criminal street gang," one element the prosecutor must prove is that the group's "primary activities" is the commission of enumerated crimes. See Cal. Penal Code § 187.22(e). Petitioner alleges there was insufficient evidence to establish the "primary activities" element of the definition for a criminal street gang.
The Court of Appeal denied Petitioner's claim that there was insufficient evidence to establish the primary activities of the Loma Bakers gang:
(Lodged Doc. 13 at 22-27.)
Petitioner argues the prosecutor did not present sufficient evidence to prove the "primary activities" element for the definition of a criminal street gang. Pursuant to California Penal Code § 186.22(f), a requirement for a criminal street gang is that the group must have, as one of its primary activities, one or more of the crimes specified in subdivision (e). "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." People v. Sengpadychith, 26 Cal.4th 316, 324 (2001).
The California Supreme Court has found that an expert witness's opinion, based on conversations with gang members, personal investigation of crimes committed by gang members, and information from colleagues, is sufficient evidence of the "primary activity" element to proving an association was a "criminal street gang." People v. Gardeley, 14 Cal.4th 605, 620 (1996).
Here, Hudson, the gang expert, testified that the primary activities of Loma Bakers gang members included "murders, robberies, assault with deadly weapons, sales of controlled substances, methamphetamine, heroin, cocaine, marijuana. They're also going to include weapons and other violations." (Reporter's Transcript 24 at 4377.) The prosecutor asked, "the primary criminal activities that you listed, murder, robbery, narcotic sales, those crimes, were those the primary activities of the Loma Bakers gang members in 2011?" Id. at 4380. Hudson responded, "Yes, ma'am, they have been consistent that way since I've been in law enforcement here." Id. After the prosecutor asked, "From August 1st of 2010 through May 15th of 2011, in your opinion, . . . was the gang involved in primary criminal activities that you mentioned?"; Hudson again confirmed that they were involved in those primary activities. Id. at 4489.
Petitioner contends the testimony provided by Hudson was not sufficient to prove the "primary activities" of the gang. (Doc. 17 at 44-45.) Petitioner primarily relies on In re Leland D., where the Court of Appeal held that "`expert testimony' based on nonspecific hearsay and arrest information does not constitute substantial evidence that the [group is] a criminal street gang." 223 Cal.App.3d 251, 259 (1990). Leland is distinguishable from the case at bar.
Here, Hudson testified he is a deputy in the Kern County Sheriff's Department, where he had been assigned to the gang unit for six years at the time he testified. (Reporter's Transcript 24 at 4345-46.) He testified he knows of the activities of the Loma Bakers gang based on "[n]umerous investigations. I've testified against them. I've had numerous contacts with them. I've been at the scene of crimes involving them. I've made numerous arrests of Loma Baker gang members." Id. at 4367. Hudson further testified that he has read reports concerning the Loma Bakers, and spoke with other people in the sheriff's department and rival gang members and non-rival gang members about the Loma Bakers. Id. at 4367-68. Hudson's knowledge is based on far more than the "nonspecific hearsay and arrest information" that the Court of Appeal found did not constitute substantial evidence in Leland.
In addition to Hudson's testimony about the primary activities of the Loma Bakers gang, Petitioner's gang expert, Hunter, testified about the gang. Hunter testified that he had known the Loma Bakers gang since the 1980's, and had interviewed members, listened to testimony, and reviewed police reports, probation reports, court transcripts, and other documents about them. (Reporter's Transcript 26 at 4864.) Hunter testified that "[a]t the present time it is my opinion that [the Loma Bakers gang is] a criminal street gang." Id. at 4866. Based on Hunter's testimony that the Loma Bakers gang is a "criminal street gang," the "primary activities" of the gang are the ones enumerated in § 186.22(e).
Considering the foregoing, there was sufficient evidence of the Loma Bakers' "primary activities" to sustain the substantive gang crimes and true findings on the gang special circumstance allegations and the gang enhancements. The Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the gang convictions.
In his third insufficient evidence claim, Petitioner contends there was insufficient evidence to support his first degree murder conviction. (Doc. 17 at 45.) Petitioner claims the evidence was insufficient to show that he was guilty of first degree murder under a felony murder theory, aiding or abetting theory, or natural and probable consequences theory. Id. at 45-47.
The Court of Appeal found Petitioner's claim that there was insufficient evidence to support the first degree murder charge was unavailing:
(Lodged Doc. 13 at 21-22.)
Petitioner states the evidence adduced at trial was insufficient to prove he was guilty of first degree murder under a felony murder theory, aiding and abetting theory, or natural and probable consequences theory. (Doc. 17 at 45-47.)
The Court of Appeal found there was sufficient evidence to convict Petitioner under an aider and abettor theory. However, Petitioner maintains "there was no evidence [he] knew that co-[defendant] Toscano intended to commit murder. The text messages which the prosecutor relied on as evidence of premeditation were not directed to [Petitioner], and there is no evidence he knew about them." Id. at 46. Instead, the Court of Appeal "impute[d] knowledge of Toscano's mens rea to [Petitioner] based solely upon gang membership, but this is legal error." Id.
People v. Cooper, 53 Cal.3d 1158, 1164 (1991) (citing People v. Beeman, 35 Cal.3d 547, 561(1984)). "Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense." In re Lynette G., 54 Cal.App.3d 1087, 1094 (1976).
Petitioner specifically contends that in affirming Petitioner's conviction for first degree murder, the Court of Appeal improperly relied on "the gang expert's testimony that, in gang culture, gangs operate in groups to retaliate against rivals." (Doc. 17 at 45.) Petitioner cites People v. Killebrew, for the proposition that the gang expert cannot offer evidence on Petitioner's mental state. Id. at 45-46 (People v. Killebrew, 103 Cal.App.4th 644, 658 (2002)). Petitioner states that "[w]hile the evidence of gang culture was admissible, [Petitioner] had to be convicted of first degree murder based upon evidence that he personally had the intent to kill [Gerardo]," which the prosecution did not prove. Id. at 46.
In Killebrew, the Court of Appeal held that a gang expert may not testify "that a specific individual had specific knowledge or possessed a specific intent." 103 Cal. App. at 658. However, "[i]t would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. . . . [T]he use of hypothetical questions is proper." People v. Vang, 52 Cal.4th 1038, 1047 (2011) (citing People v. Gonzalez, 126 Cal.App.4th 1539, 1551 n. 4 (2005)) (emphasis omitted).
Petitioner appears to take issue with the Court of Appeal's statements that, "[a]s reflected by the gang expert's testimony regarding the hypothetical based on the underlying incident, there was evidence showing appellants acted as a group throughout the incident. . . .,;" as well as,
(Lodged Doc. 13 at 22.)
Contrary to Petitioner's contentions, the record shows that the prosecutor posed hypothetical questions based on Gerardo's shooting that Hudson, the gang expert, answered. For instance, when the prosecutor asked Hudson, "What's expected of a gang member when a fellow gang member is involved in a verbal confrontation?" Hudson answered,
(Reporter's Transcript 24 at 4434-35.) Therefore, the prosecutor questioned Hudson using hypotheticals, which is proper in California.
Further, the Court of Appeal did not base its opinion solely on Hudson's opinion, but on the circumstances surrounding the shooting and testimony of other witnesses. (Lodged Doc. 13 at 22.) Text messages between members of the gang showed their intent to retaliate for the shooting of Jacob, co-defendant Toscano's brother, which occurred six days before Gerardo was killed. Albarran
(Reporter's Transcript 23 at 4256-57.)
In a later conversation between the two,
Id. at 4258
In a text message exchange between co-defendant Garcia-Santos and his girlfriend on the day of the murder, Garcia-Santos told his girlfriend he could not attend an event with her because, "I got things to handle to by tonight." Id. at 4239. Later, when his girlfriend asked if he was ok, Garcia-Santos replied, "Yeah, but we're going to the west side in a bit." Id. at 4239-40. At 6:00 p.m., Garcia-Santos texted Jacob that he was with Joseph Gonzales, a Loma Bakers gang member, Albarran, and co-defendant Aguero. Id. at 4242. At 8:16 p.m., when he was at the restaurant where the quinceañera was being held, Garcia-Santos texted his girlfriend that he did not know what time he would be home and "We're waiting." Id. at 4243. Gerardo was killed at 9:03 p.m. Id.
Based on these test messages, it would be reasonable to conclude that Petitioner and his co-defendants went to the quinceañera to retaliate for the shooting of Jacob. When they arrived at the quinceañera, Petitioner's group tried to identify members of their rival gang, the Westside gang, by pretending to be Westside gang members. One of the co-defendants, believed to be Toscano, asked a quinceañera attendee where the "Westies" were. The attendee pointed to the table where Gerardo and his friends were sitting, even though he was not sure that they were Westside gang members. Petitioner's group acted together to find potential victims.
Before the shooting and while the co-defendants were standing in a circle near each other, Toscano lifted his shirt to show Melina, the woman who had invited him to the quinceañera, a gun tucked into the waist band of his shorts. Therefore, it was reasonable to infer that all the co-defendants knew that Toscano was carrying a gun.
Once Gerardo and his friends walked to their car, Petitioner's group followed them. Toscano's hand was underneath his sweatshirt as he followed Gerardo. When Petitioner's group surrounded Gerardo's car, as a group, they continued to pretend they were part of the Westside gang. When Gerardo told Petitioner's group, "I'm from the West Side, too," Petitioner responded, "You not from my hood." At that point, Petitioner's group began to harass and intimidate Gerardo and, as a group, blocked the car so that Gerardo could not get away from them. Petitioner stole Gerardo's phone and hat and the co-defendants taunted Gerardo and his friends, calling them "little bitches."
Hudson also testified that a gang would retaliate if one of their gang members was shot, with an equal or greater use of violence. (Reporter's Transcript 24 at 4430-32.) He also testified that the retaliation would be led by a family member who was also in the gang. Id. at 4432-33. Here, after Jacob was shot, his brother, co-defendant Toscano, brought his gun to the quinceañera and killed Gerardo.
It appears, based on this evidence, that the co-defendants acted together to find a victim, knowing that they wanted to seek revenge for Jacob's death and knowing that Toscano was carrying a gun, and while harassing and taunting Gerardo, encouraged the crimes of robbery and then shooting Gerardo. In view of these facts, it was reasonable for the Court of Appeal to find that Petitioner knew of Toscano's unlawful purpose, and intended to commit, facilitate, or encourage the commission of the crime by acting, aiding, promoting, encouraging, or instigating the commission of the crime.
Therefore, the Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the robbery conviction and robbery special circumstance.
In his fifth ground for habeas relief, Petitioner contends the trial court improperly admitted text messages, after finding they qualified as admissions of co-conspirators. (Doc. 17 at 35-38.) Respondent counters the claim is not cognizable on federal habeas review, because Petitioner is asserting a violation of state law. (Doc. 23 at 52-60.)
Petitioner argues that text messages exchanged between members of the Loma Bakers gang should not have been admitted as proof of a conspiracy, because there was no evidence that Petitioner was a member of the conspiracy when the messages were created. (Doc. 17 at 35.)
The Court of Appeal rejected Petitioner's claim that the trial court erred in admitting text messages exchanged between members of the Loma Bakers gang.
The first exchange occurred on April 24, 2011, around 5:00 p.m.:
The second exchange occurred the same day around 6:00 p.m.:
(Lodged Doc. 13 at 30-32.)
Issues regarding the admission of evidence are matters of state law, generally outside the purview of a federal habeas court. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983).
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375 . . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101. Therefore, the Court of Appeal could not have contravened federal law through the admission of the text message evidence when federal law is not clearly established. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ([T]his Court has held on numerous occasions that it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.").
Here, the Court of Appeal did not reach the merits of whether the text messages were admissible, but found that any error in admitting them was harmless. Under federal habeas review, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776). When a state court finds harmless error, this Court must determine whether the finding was objectively unreasonable. Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015). The Court will apply the Brecht test, but will do so "with due consideration of the state court's reasons for concluding that the error was harmless beyond a reasonable doubt." Garcia v. Long, 808 F.3d 771, 782 (2015).
The Court of Appeal found the "text exchange was cumulative of other properly admitted evidence showing that Toscano held Westsiders responsible for the shooting that injured his brother and that" Petitioner and his co-defendants "planned and committed the offenses in retaliation for the shooting." (Lodged Doc. 13 at 32.) Petitioner maintains the text messages were prejudicial because they "were the basis for an uncharged conspiracy instruction," and "[w]ithout the uncharged conspiracy instruction, the jury likely would not have convicted [Petitioner] of murder since there was no evidence [Petitioner] had any warning of co-appellant Toscano's decision to shoot at [Gerardo]." (Doc. 17 at 35.)
Petitioner's argument is unavailing. As the Court has already explained, there was sufficient evidence to convict Petitioner of first degree murder under an aiding and abetting theory based on the text messages, as well as his actions on the night of the shooting. Because the evidence presented at trial without the text messages was sufficient to convict Petitioner of first degree murder under an aiding and abetting theory, Petitioner has not shown that the admission of the text messages had a "substantial and injurious effect" on the verdict. Consequently, the Court recommends denying this claim.
Petitioner additionally alleges that the trial court erred in admitting text messages between co-defendant Garcia-Santos and his girlfriend as declarations against penal interest, because they violated his right to a fair trial. (Doc. 17 at 2728.) Specifically, Petitioner argues the text messages were ambiguous because the term "we" was used in them, but not defined, and they were untrustworthy. Id. at 37-38.
The Court of Appeal rejected Petitioner's argument that it was improper to admit text messages between Garcia-Santos and his girlfriend:
Lodged Doc. 13 at 31-33.
Issues regarding the admission of evidence are matters of state law, generally outside the purview of a federal habeas court. Holley, 568 F.3d at 1101. "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson, 63 F.3d at 930. "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. at 438 n. 6.
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375 . . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101. Therefore, the Court of Appeal could not have contravened federal law through the admission of the text message evidence when federal law is not clearly established. Knowles, 556 U.S. at 122 ([T]his Court has held on numerous occasions that it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.").
Petitioner also contends, "[a]lthough these statements did not qualify as testimonial hearsay under Crawford v. Washington[`s] . . . Sixth Amendment Analysis, nevertheless as part of [Petitioner's] basic right to a fair trial, these should not have been admitted because they were not trustworthy." (Doc. 17 at 37-38) (internal citation omitted). The Sixth Amendment to the United States Constitution grants a criminal defendant the right "to be confronted with the witnesses against him." The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
The Supreme Court has also interpreted the Confrontation Clause to permit admission of out-of-court statements by an unavailable witness, if the statements bore "adequate indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66 (1980). "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception," or there is a showing of "particularized guarantees of trustworthiness." Id.
Here, the Court of Appeal's determination that the statements were trustworthy was not unreasonable. Petitioner argues the text messages were not trustworthy because Garcia-Santos wrote, "he was with us when we did that," and "Cause we[`]re all talking about our [alibis]," but did not identify who he was referring to when he wrote "we." (Lodged Doc. 13 at 31.) Petitioner does not explain why the text messages are not trustworthy because the "we" was not identified. Nor does Petitioner cite any federal cases involving the Confrontation Clause. See Jones v. Gomez, 66 F.3d 199, 204 (1995) ("It is well-settled that conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.") (internal quotation marks and alteration omitted).
In any event, admission of the text messages did not render Petitioner's trial fundamentally unfair. As with the text messages between the Loma Bakers gang members, the text messages between Garcia-Santos and his girlfriend were cumulative of other evidence adduced at trial. The text messages showed that Toscano was present when the shooting took place, that Garcia-Santos was with him, and that Garcia-Santos was talking with other people about an alibi. Petitioner has not shown that the admission of the text messages had a "substantial and injurious effect" on the verdict. Consequently, the Court recommends dismissing this claim.
In his sixth ground for habeas relief, Petitioner alleges that Hudson, the gang expert, gave improper testimony that Petitioner must have known co-defendant Toscano had a gun. (Doc. 17 at 38.) Specifically, Petitioner contends Hudson "may not opine that a specific individual has a specific knowledge or possessed a specific intent. Id. (citing People v. Killebrew, 103 Cal.App.4th 644, 658 (2002)).
The Court of Appeal denied Petitioner's claim that Hudson's testimony was improper:
Lodged Doc. 13 at 27-30.
Issues regarding the admission of evidence are matters of state law, generally outside the purview of a federal habeas court. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983).
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375 . . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101. Therefore, the Court of Appeal could not have contravened federal law through the admission of the text message evidence when federal law is not clearly established. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ([T]his Court has held on numerous occasions that it is not `an unreasonable application of' `clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.").
Petitioner is entitled to habeas relief if the admission of evidence "is so extremely unfair that its admission violates fundamental conceptions of justice." Perry v. New Hampshire, 565 U.S. 228, 237 (2012). A due process violation occurs only if there are no permissible inferences that the jury may draw from the evidence. Id. Here, Hudson did not testify to Petitioner's subjective knowledge or intent regarding whether co-defendant Toscano was armed. Instead, he testified about the customs of gang members in general, and whether it would be expected for a gang member to advise other gang members if he were armed. Because there was no due process violation, the Court recommends denying the claim.
In his seventh claim for relief, Petitioner contends the imposition of sentencing enhancements violated his right to equal protection of the law. (Doc. 17 at 40-43.) Specifically, Petitioner alleges California Penal Code §§ 12022.53(d) and (e)
The Court of Appeal rejected Petitioner's equal protection claim:
Lodged Doc. At 45-49.
Petitioner claims California Penal Code § 12022.53(d), which requires the imposition of a consecutive term of twenty-five years to life for any defendant who personally and intentionally discharged a firearm that causes the victim's death, violates his right to equal protection.
The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Pyler v. Doe, 457 U.S. 202, 216 (1982)). "If a legislative classification or distinction `neither burdens a fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end.'" Vacco v. Quill, 521 U.S. 793, 799 (1997) (quoting Romer v. Evans, 517 U.S. 620, 631 (1996)).
"For statutory challenges made on Equal Protection grounds, `the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a governmental interest.'" Robinson v. Marshall, 66 F.3d 249, 251 (9th Cir. 1995) (quoting United States v. Harding, 971 F.2d 410, 42 (9th Cir. 1992)). A legislative distinction made for sentencing purposes "must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." United States v. Ellsworth, 456 F.3d 1146, 1150 (9th Cir. 2006) (quoting FCC v. Beach Commc'ns, 508 U.S. 307, 313 (1993)) (internal quotation marks omitted) (emphasis in original).
Even assuming Petitioner has shown he is subject to different treatment than defendants similarly situated to him under California Penal Code § 12022.53, Petitioner has not satisfied the heavy burden of showing that the statutory distinction lacked a rational basis. As the Court of Appeal observed, California has a legitimate interest in reducing the use of firearms by gang members. See People v. Garcia, 28 Cal.4th 1166, 1172 (2002) (in drafting § 12022.53(e)(1), the California legislature intended to "severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang" and did so "in recognition of the serious threats posed to the citizens of California by gang members using firearms") (quoting People v. Gonzales, 87 Cal.App.4th 1, 19 (2001)).
California could have rationally concluded that the use of firearms by gang members could be reduced by punishing and deterring those who aid and abet murders committed by gang members in which the perpetrator uses a gun. Hernandez v. Haws, No. CV 07-2140 CJC (CW), 2011 WL 1898205, at *11 (C.D. Cal. Feb. 9, 2011) (citing People v. Hernandez, 134 Cal.App.4th 474, 483 (2005)).
The Court of Appeal's rejection of Petitioner's Equal Protection Clause claim was neither contrary to nor an unreasonable application of clearly established Supreme Court law; therefore, the Court recommends denying Petitioner's claim.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented required further adjudication. Accordingly, the Court recommends declining to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court deny the Petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within
Evidence of a statement offered against a party is not inadmissible by the hearsay rule if:
California Penal Code § 12022.53(e)(1) provides,
