MICHAEL M. ANELLO, District Judge.
Petitioner Irwin Guzman ("Petitioner"), a state prisoner proceeding pro se, has filed an Amended Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his 2013 conviction for eight counts of robbery (Cal. Penal Code § 211), and one count of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)).
The factual background set forth below is excerpted from the California Court of Appeal's opinion. See Doc. No. 35-17.
Id. at 3-7.
On October 8, 2013, a California jury found Petitioner guilty of eight counts of second-degree robbery and one count of assault with a deadly weapon. See id. at 3. The jury also concluded that Petitioner used a deadly weapon in the commission of six of the robberies and found that all nine felonies were committed for the benefit of a criminal street gang. See id. Petitioner was sentenced to twenty-six years and four months in prison. See id.
After sentencing, Petitioner appealed to the California Court of Appeal, which affirmed. See id. at 1. From there, Petitioner applied to the California Supreme Court for review, but was denied without opinion. See Doc. No. 35-21 at 1. Petitioner did not file a state collateral attack. Instead, he filed his Petition in this Court pursuant to 42 U.S.C. § 2254. See Doc. No. 39. Petitioner presents five claims for relief: (1) substantial evidence did not support the jury's true findings on the gang enhancement in violation of Petitioner's due process rights; (2) the trial court erred by denying a defense motion to bifurcate the trial as to the gang enhancement allegations in violation of Petitioner's rights to due process and a fair trial; (3) impermissibly suggestive pre-trial identification procedures and tainted in-court identification of Petitioner violated his rights to due process; (4) jury instructions permitted the jury to equate motive and intent for purposes of proof of the intent requirement for the charged offenses and the gang enhancement which denied Petitioner of his due process right to proof of all elements of the charged offenses and the gang allegations beyond a reasonable doubt; and (5) the cumulative effect of the trial errors rendered Petitioner's trial fundamentally unfair in violation of his due process rights. See id.; see also Doc. No. 56.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") govern federal habeas corpus petitions. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a federal habeas corpus petition will not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless that 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 at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002). "A state court's decision can involve an `unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). Under § 2254(d)(1), a federal habeas court may grant relief under the "contrary to" clause "if the state court applies a rule different from the governing law set forth in [United States Supreme Court] cases, or if it decides a case differently than [the United States Supreme Court] ha[s] done on a set of materially indistinguishable facts." Shammam v. Paramo, 664 F. App'x 629, 630 (9th Cir. 2016) (citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
For purposes of federal habeas corpus review under § 2254(d), clearly established federal law means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision" and refers to the holdings, as opposed to the dicta, of Supreme Court decisions. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant relief under § 2254(d)(2), a federal court must be "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the [state court's] finding[s] [are] supported by the record." Murray v. Schriro, 745 F.3d 984, 1012 (9th Cir. 2014) (citing Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). Here, the California Court of Appeal gave a reasoned opinion as to Petitioner's claims, and so the Court looks through to that opinion as the basis for the state court denial. See Doc. No. 35-17.
Petitioner first challenges the Court of Appeal's conclusion that sufficient evidence supported the jury's finding that he committed the offenses for the benefit of a criminal street gang. "[A] due process claim challenging the sufficiency of the evidence can only succeed when, viewing all the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018) (quotation marks omitted). The Court must apply a "second level of deference" to the state court's determinations in habeas corpus proceedings. Id. As such, the Court "must conclude that the state court's determination that a rational jury could have found each required element proven beyond a reasonable doubt was not just wrong but was objectively unreasonable." Id. at 1056-57.
In addressing this argument, the Court of Appeal stated:
Doc. No. 35-17 at 26-28 (citation and footnote omitted).
"California's gang enhancement applies to `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.'" Johnson, 899 F.3d at 1057 (quoting Cal. Penal Code § 186.22(b)(1)). The government must prove: (1) that the "crime be related to a gang"; and (2) that the defendant "specifically intended to assist a gang member's crime." Id. It appears that Petitioner challenges both prongs.
Petitioner takes issue with the Court of Appeal's analysis because, although the evidence indicated both he and Mendoza were Diablos gang members, Garcia was a member of a different gang. Thus, he argues, "there was no evidence of any kind indicating these crimes were gang related." Doc. No. 56 at 4. Petitioner further contends that there were no gang tattoos, signs, or yelling during the commission of the robberies, showing that the victims did not know that Petitioner and his codefendants were in a gang.
The government can prove this first prong by showing that the eight robbery counts and the assault count were at the direction of, in association with, or for the benefit of a gang. Johnson, 899 F.3d at 1057. Because the statute is disjunctive, the state need only prove one of the three. See id.
"Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in `association' with a gang." Id. Moreover, a "crime is committed in association with the gang if the defendants relied on their common gang membership and the apparatus of the gang when they committed the crime." Id. (quotation marks omitted).
Here, Petitioner committed the crime with fellow Diablos gang member Mendoza. The Court of Appeal's conclusion that Garcia's involvement did not alter this result, despite the fact that he is a member of a different gang, is not unreasonable. Specifically, the court noted the expert's testimony concerning the overlap of Hispanic gangs in the area. See Doc. No. 35-17 at 28. The court also noted that Garcia worked with the Diablos regularly, the Diablos trusted him, and the Diablos treated him as one of their own. Id. Finally, the jury could reasonably conclude that the three individuals relied on the apparatus of the gang because they used the "flood control channel" located near the Mi Pueblo Market to escape from the first six robberies, which was a "pathway" "frequently used by gang members." Doc. No. 35-17 at 4; see also Doc. No. 35-4 at 80; Doc. No. 35-8 at 43-44.
But even if there is insufficient evidence to show that Petitioner's actions were "in association with" the Diablos, there is sufficient evidence to show the actions were "for the benefit of" the Diablos. In Johnson, the Ninth Circuit concluded that the following facts were sufficient to show the crimes were "for the benefit of" the Project Watts Crips gang, notwithstanding the fact only one of the two individuals that committed the robbery were members of that gang:
899 F.3d at 1058. A gang expert "testified that violent crimes benefit a gang by increasing the intimidation in the community, lowering reporting rates among witnesses, and allowing the criminal enterprise to continue free from police restraint." Id. "The gang expert also opined that such crimes bestow `respect' on the individual and elevate the status of the gang." Id. The court explained that these facts were "sufficient for a jury to infer that the crime was meant to send a message to the public about gang brutality and control" in their territory. Id.
Here, the Diablos gang expert testified that the Diablos "frequently commit crimes against members of the public in their home turf" and by doing so "benefit the gang by instilling fear within the surrounding community." Doc. No. 35-17 at 21. "Members of the Diablos gang are expected to automatically back up their fellow gang members if a member decides to commit a crime of opportunity against a member of the public." Id. Indeed, the expert opined that "the primary purpose and activity of the Diablos gang is to commit crimes such as robbery, assault with a deadly weapon, and making criminal threats." Id. Finally, the expert explained that "respect" is a "core value" of gangs, gained through the commission of crimes by gangs and individual gang members. Doc. No. 35-8 at 20-21.
Similar to Johnson, (1) the robberies were violent crimes involving physical violence and threats of violence with a hammer, (2) the robberies occurred within the Diablos' territory (see Doc. No. 35-8 at 85-86), (3) the expert testified that robbery is one of the primary activities of the Diablos, (4) the first robbery occurred in broad daylight and the second occurred in twilight hours (see Doc. No. 35-4 at 103; Doc. No. 35-6 at 19, 64), (5) the robberies were brazen because they involved multiple victims and one of the robberies was on a public street (Doc. No. 35-6 at 65), (6) both Petitioner and Mendoza were documented and known members of the Diablos, and (7) the victims were ordinary members of the public with little or no personal relationship with the defendants or gangs (see Doc. No. 35-4 at 121; Doc. No. 35-5 at 113; Doc. No. 35-6 at 150-51; but see Doc. No. 35-5 at 148-49 (one victim identifying one of the defendants as someone he went to school with)). Although Petitioner and his codefendants did not use any lingo associated with members of the Diablos, the Court finds that the Court of Appeal reasonably determined that the evidence was sufficient for a rational jury to conclude that the robberies were "for the benefit of" the Diablos. See Johnson, 899 F.3d at 1058.
Petitioner also challenges the specific intent prong, arguing that the Court of Appeal allowed the gang expert's testimony to serve as the sole basis to determine specific intent because, according to Petitioner, that was the only evidence offered concerning his intent to assist any gang. See Doc. No. 56 at 4. Petitioner's argument, however, is foreclosed by the California Supreme Court's interpretation of this element: "[I]f 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. Albillar, 244 P.3d 1062, 1076 (Cal. 2010). Critically, the California Supreme Court interpreted the second prong to require proof that a defendant had a "specific intent to promote, further, or assist in any felonious criminal conduct by gang members." Id. at 1075. Moreover, felonious criminal conduct does not have to be old conduct; it can be the instant offense if that offense is committed with another known gang member. Id. Here, a rational jury could conclude that Petitioner had the specific intent to assist Mendoza—a fellow Diablos—in the commission of these felonious robberies, and thus Petitioner's challenge to the second prong similarly fails. See id. at 1076.
Accordingly, Petitioner fails to demonstrate that the California courts' denial of this claim was contrary to, or an unreasonable application of, established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented.
Petitioner next claims that the trial court's refusal to bifurcate proof of the gang enhancement violated his due process rights. The Supreme Court, however, has not recognized that a trial court's denial of a motion to bifurcate trial of the gang enhancement implicates the Due Process Clause; thus, there is no clearly established federal law. See Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007) ("Where the Supreme Court has not addressed an issue in its holding, a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly established federal law."); see also Demirdjian v. Gipson, 832 F.3d 1060, 1066 (9th Cir. 2016) (noting that federal courts cannot "grant habeas relief unless the California Court of Appeal's decision on that claim was `contrary to, or involved an unreasonable application of' clearly established Supreme Court authority") (quoting 28 U.S.C. § 2254(d)(1)).
Rather, the Supreme Court's jurisprudence on bifurcation and misjoinder of claims suggests that there is no constitutional right to bifurcation. See Spencer v. Texas, 385 U.S. 554, 568 (1967) ("Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure."). The closest the Supreme Court has come to holding otherwise is in a footnote stating, "[i]mproper joinder does not, in itself, violate the Constitution. Rather, 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." United States v. Lane, 474 U.S. 438, 446 n.8 (1986). But the Ninth Circuit has squarely held that "the statement in Lane regarding when misjoinder rises to the level of constitutional violation was dicta" and thus does not serve to clearly establish federal law for habeas corpus purposes. Runningeagle v. Ryan, 686 F.3d 758, 776 (9th Cir. 2012); accord Collins v. Runnels, 603 F.3d 1127, 1133 (9th Cir. 2010) ("The footnote upon which Collins relies did not set forth the governing legal principle in Lane. It was merely a comment."). The Ninth Circuit has continued to refuse to provide habeas corpus review of bifurcation decisions, at least in non-death penalty cases. Compare Grajeda v. Scribner, 541 F. App'x 776, 778 (9th Cir. 2013) ("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."); Hollie v. Hedgpeth, 456 F. App'x 685, 685 (9th Cir. 2011) ("The Supreme Court has never held that a trial court's failure to provide separate trials on different charges implicates a defendant's right to due process."); with Davis v. Woodford, 384 F.3d 628, 638-39 (9th Cir. 2004) (reviewing a habeas "joinder challenge" in the death penalty context).
Even if the Court were to apply the standard set forth in the Ninth Circuit's death-penalty jurisprudence, Petitioner fails to demonstrate any fundamental unfairness. A bifurcation challenge can only be successful if the denial "resulted in an unfair trial. There is no prejudicial constitutional violation unless simultaneous trial of more than one offense actually rendered petitioner's state trial fundamentally unfair and hence, violative of due process." Davis, 384 F.3d at 638 (alterations and quotation marks omitted). The Ninth Circuit focuses "particularly" on the cross admissibility of evidence and the danger of "spillover" from one charge to another but also considers whether one charge or set of charges is weaker than another. Id.
The California Court of Appeal considered the question of cross admissibility in Petitioner's case, stating that:
Doc. No. 35-17 at 9. The Court agrees that much of the evidence would have been admissible in a separate trial. Moreover, the "State did not join a strong evidentiary case with a much weaker case in the hope that the cumulation of the evidence would lead to convictions in both cases." Davis, 384 F.3d at 639 (quotation marks omitted). Rather, the State had a strong case in both the substantive offenses and in the gang enhancement. Also, as in Davis, the trial court "further limited" any prejudice through an instruction to the jury to consider each count separately and to consider the gang evidence for limited purposes. Id.; see also Doc. No. 35-17 at 19 n.5 ("You may not consider this [gang] evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."). As such, even if it were clearly established that bifurcation decisions are challengeable under the Due Process Clause in habeas corpus proceedings, Petitioner's argument fails. Thus, Petitioner is not entitled to relief on this claim.
Finally, in his direct appeal through the California courts, Petitioner primarily argued that the trial judge abused his discretion under California common law relating to bifurcation. To the extent Petitioner requests that the Court reconsider those state-law rulings, such a request is not cognizable under federal habeas review. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) ("Simple errors of state law do not warrant federal habeas relief.").
Petitioner further asserts that the in-court identifications were tainted by unduly suggestive out-of-court identification procedures and thus violated his due process rights. The use of out-of-court identification procedures do not automatically violate due process; "due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary." Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). "Even when the police use such a procedure . .. suppression of the resulting identification is not the inevitable consequence." Id. at 239. Instead, "the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a `substantial likelihood of misidentification.'" Id. (quoting Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). "Reliability of the eyewitness identification is the linchpin of that evaluation" and only "[w]here the indicators of a witness' ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion, [should] the identification be suppressed." Id. at 239 (alterations and quotation marks omitted).
"To determine whether an identification procedure violates a defendant's due process rights, a court must consider whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive." United States v. Drake, 543 F.3d 1080, 1088 (9th Cir. 2008) (quotation marks omitted). Courts consider a variety of factors, including "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Id. (alteration and quotation marks omitted).
Petitioner argues first that the curbside lineup with Abraham and Daniel tainted the in-court identifications. Petitioner contends that the lineup was unduly suggestive because the officers told the victims that they caught the guys in the car the victims had reported, the car was in the parking lot when the victims arrived, Petitioner was in handcuffs and surrounded by officers, the victims were presented the culprits individually, and there was a lack of exigency to justify these procedures. See Doc No. 56 at 9-10.
The Court of Appeal summarized the facts concerning Abraham and Daniel as follows:
Doc. No. 35-17 at 12-13 (footnote omitted). Relying on these facts, the court reasoned:
Id. at 13-14.
Here, upon review of the record, the Court finds that the state courts' adjudication of this claim did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. Although "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned," Stovall v. Denno, 388 U.S. 293, 302 (1967) overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 328 (1987), "the admission of evidence of a showup without more does not violate due process." Neil, 409 U.S. at 198. Indeed, "[o]ne-on-one identifications are sometimes necessary because of officers' and suspects' strong interest in the expeditious release of innocent persons and the reliability of identifications made soon after and near a crime." Morris v. Carey, No. 2:06-cv-0354 GEB JFM P., 2010 WL 231379, at *16 (E.D. Cal. Jan. 13, 2010).
The curbside lineup was not unduly suggestive nor was the testimony from Daniel or Abraham rendered constitutionally unreliable. See Perry, 565 U.S. at 239 (holding that "reliability" is the "linchpin" of the evaluation). Both Daniel and Abraham had adequate time to observe the undisguised robbers. See Doc. No. 35-17 at 13. Their attention was undividedly on the robbers, since the robbery was committed in the immediate vicinity of the boys and the group exchanged both words and physical contact with the witnesses. Abraham gave clear, descriptive reasons for his belief that he had correctly identified the attackers and the lineup occurred shortly after the incident in question. Additionally, courts have held that admonishments like those given to Abraham and Daniel reduce the suggestive nature of an identification procedure. See, e.g., United States v. White, 38 F. App'x 426, 427 (9th Cir. 2002) ("The in-field identification procedure was not impermissibly suggestive because the officers admonished each witness that there was no obligation to identify anyone and each witness viewed the defendants independently from the other witnesses."). Finally, the admonishment given was clearly impressed on both Daniel and Abraham, as Abraham testified he knew his job was to look for the "correct guys," and Daniel was unable to positively identify any of the subjects. Doc. No. 35-17 at 13. Accordingly, Petitioner has not met his burden to show that the state courts' conclusion that the admission of the curbside lineup was proper was contrary to, or involved an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts.
Petitioner next argues that the in-court identifications of the victims of the first robbery were tainted by the photo arrays the police showed them the day after the robbery. Petitioner argues that there was only one other man with long hair in the photo and that others in the photo "grossly dissimilar in appearance" to him in violation of United States v. Wade, 388 U.S. 218, 233 (1967). See Doc. No. 56 at 12. The Court of Appeal summarized the facts concerning the relevant witnesses as follows:
Doc. No. 35-17 at 14.
Petitioner contends that the six-pack photo array, which included his photo, was unduly suggestive. The Court of Appeal reasoned that "courts have upheld lineup identifications despite the existence of similar or greater disparities among lineup participants," thus, the fact that "the Guzman six-pack included one other person with long hair and only three of the victims were able to identify him," rendered the lineup "not unduly suggestive." Id. at 15.
Petitioner argues that the Court of Appeal's ruling was unreasonable because the six-pack array only contained one other individual with long hair and he was the only individual wearing a white shirt. Petitioner primarily focuses on the hair length, since he correctly notes that some of the witnesses testified that they recognized him, in part or in whole, due to his hair. See, e.g., Doc. No. 35-5 at 174, 204. The following six-pack was shown to the witnesses:
Doc. No. 63 at 4. Petitioner is the top-center subject.
Although the habeas review standard is far more deferential, even if the Court performed a de novo review, the Court finds that the photo array in question is not unduly suggestive. While only two of the subjects, including Petitioner, appear to have longer-than-shoulder-length hair, none of the subjects have short hair, and all but one of the subjects have hair reaching at least to each subjects' collar. The subjects all appear to be of approximately the same age, have similar skin tones, all but one have on similar shirts (although of a different color), all but one are clean shaven, and all have the same hair color. The instructions of the lineup also warn that "hairstyles, beards and mustaches may be easily changed." Doc. No. 63 at 4. Given the "totality of the circumstances," the photographic lineup was not unduly suggestive because of either the color of Petitioner's shirt or his hair length. Drake, 543 F.3d at 1088. As the Court of Appeal noted, this conclusion is reinforced by the fact that several of the witnesses shown this lineup failed to select Petitioner from the lineup or at trial.
Indeed, the Ninth Circuit has rejected similar challenges. See United States v. Beck, 418 F.3d 1008, 1012 (9th Cir. 2005) (concluding that the photospread "was not so impermissibly suggestive as to create a substantial likelihood of misidentification" where all of the subjects are Caucasian males in the same age range, with similar skin, eye, and hair coloring, and where "[f]our of the six photos show men with similar length hair, but two having somewhat shorter hair"); United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991) ("Nash criticizes the photospread because one of the photographs was of a Latino man, only Nash and two others had light complexions, and only Nash and the man Nash contends is Latino had afro hairstyles. We find the photospread to be a balanced presentation that was not suggestive."); see also United States v. Mack, No. 99-50595, 2000 WL 1171143, at *1 (9th Cir. Aug. 17, 2000) ("We have held that a photospread is not impermissibly suggestive even though the pictures vary in race and hair style. . . . The minor discrepancies among the photos do not make the photospread impermissibly suggestive."). In light of the foregoing, the Court finds that state courts' conclusion that admission of the photo array was proper was not contrary to, nor an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts.
Petitioner also challenges the California Court of Appeal's ruling concerning the jury instructions. Generally, federal courts do not grant relief to a petitioner based on a challenge to a state jury instruction, even an erroneous one, in a petition for a writ of habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To receive relief at this stage, Petitioner must show that the challenged instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 72 (quotation marks omitted). "A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Middleton v. McNeil, 541 U.S. 433, 437 (2004) (quotation marks omitted).
Petitioner challenges the use of model California jury instructions—CALCRIM Nos. 370, 1401, and 1403. Petitioner argues that the instructions confused the jury by inadequately explaining the difference between the intent required to commit the gang enhancement and the concept of motive for committing the robberies. See Doc. No. 56 at 22. According to Petitioner, this relieved the prosecution of its burden to prove the intent component of the gang enhancement beyond a reasonable doubt. See id. The California Court of Appeal found Petitioner's argument unpersuasive, citing to People v. Fuentes, 171 Cal.App.4th 1133, 1139-40 (2009), which rejected the same argument in a virtually identical situation. Here, CALCRIM 370 addressed the concept of motive for the robbery charges and the assault:
Doc. No. 35-17 at 19 n.5. By contrast, the pertinent sections of the CALCRIM 1401 instruction addressed only the gang enhancement:
To prove this allegation, the People must prove that:
Id. at 17-18. The CALCRIM 1403 instruction provides:
Id. at 19.
Contrary to Petitioner's argument, CALCRIM 370 by its express terms applies only to the substantive charges and thus did not modify CALCRIM 1401. Indeed, CALCRIM 1401 provides that the jurors should not even consider the instruction unless they had already found the defendants guilty of the substantive charges. If the jurors reached that stage, CALCRIM 1401 provides clear instructions to consider Petitioner's intent. Petitioner attempts to distinguish his case from Fuentes because in his trial the jury was also instructed on CALCRIM 1403, which further confused motive and intent. See Doc. No. 56 at 22. However, CALCRIM 1403 specifies that the gang-activity evidence could be used to determine general motive for the substantive crimes, the specific intent required by the gang enhancement, or credibility, but for no other purpose. The fact that the same evidence could be considered for different purposes is neither surprising nor confusing in a criminal case, and a clear instruction limiting the use of such evidence for a specific purpose is neither unusual nor inappropriate. Thus, Petitioner fails to show that he is entitled to federal habeas corpus relief because the instructions "so infected the entire trial" such that the resulting conviction violates due process.
Lastly, Petitioner argues that the cumulative impact of all of the alleged errors prejudiced him, requiring a new trial. See Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) ("[P]rejudice may result from the cumulative impact of multiple deficiencies."). However, because Petitioner fails to identify any errors, there can be no constitutional violation based on the alleged cumulative impact of the alleged errors. See Hays v. Farwell, 482 F.Supp.2d 1180, 1202 (D. Nev. 2007) ("The cumulative error doctrine, however, does not permit the Court to consider the cumulative effect of non-errors."); see also Fuller v. Roe, 182 F.3d 699, 704 (9th Cir. 1999), overruled on other grounds, Slack v. McDaniel, 529 U.S. 473 (2000) ("where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation").
Petitioner further requests an evidentiary hearing. See Doc. No. 56. "A habeas petitioner is entitled to an evidentiary hearing if: (1) the allegations in his petition would, if proved, entitle him to relief; and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts." Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001) (emphasis omitted). "[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Here, the Court finds that the record precludes habeas relief and the Court does not need any additional facts to adjudicate his Petition. Accordingly, the Court
Rule 11 of the Rules Governing Section 2254 Cases states that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability should issue as to those claims on which a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standard is satisfied if "jurists of reason could disagree with the district court's resolution of [the] constitutional claims" or "conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here, the Court concludes that Petitioner has not made the required showing. Accordingly, the Court
Based on the foregoing, the Court
