Sean Mermer v. Neil McDowell

Filing 24

ORDER ACCEPTING Findings, Conclusions and RECOMMENDATIONS of U.S. Magistrate Judge by Judge Virginia A. Phillips. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 SEAN MERMER, ) NO. CV 16-932-VAP(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) NEIL McDOWELL, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 Virginia A. Phillips, United States District Judge, pursuant to 28 20 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Petitioner, a state prisoner represented by counsel, filed a 26 “Petition for Writ of Habeas Corpus By a Person in State Custody” on 27 February 10, 2016, accompanied by a Memorandum (“Pet. Mem.”). 28 Respondent filed an Answer on March 30, 2016, asserting that Grounds 1 Seven, Eight, Nine, Ten and Eleven of the Petition were unexhausted. 2 Petitioner filed a Traverse on April 7, 2016, disputing Respondent’s 3 arguments and conditionally requesting leave to amend the Petition to 4 delete any of the claims that the Court determined to be unexhausted. 5 6 On April 27, 2016, the Court issued an “Order Adjudicating 7 Exhaustion Issues, Deeming Petition Amended and Requiring Supplemental 8 Answer.” 9 portion of Ground Eleven which was based on Ground Nine. 10 The Court found to be unexhausted Ground Nine and that The Court deemed the Petition to be amended to delete those Grounds. 11 12 On May 23, 2016, Respondent filed a Supplemental Answer to the 13 Petition, as deemed amended by the Court’s April 27, 2016 Order. 14 On June 8, 2016, Petitioner filed a second Traverse. 15 16 BACKGROUND 17 18 The State charged Petitioner and co-defendants Taaj Martin, 19 Norman Cole and Patrick Birdsong with the murder of Richard Juarez and 20 the attempted murders of Richard De la Cruz, Chloe McCarty and 21 Ashleigh Rodriguez (Clerk’s Transcript [“C.T.”] 817-26). 22 initially separate case, the State charged Martin alone with the 23 murder of William McKillian (C.T. 730-31). 24 granted the prosecution’s motion to consolidate the two cases 25 (Augmented Reporter’s Transcript of Proceedings on November 4, 2010, 26 at 22; C.T. 755). 27 /// 28 /// 2 In an Prior to trial, the court 1 A jury found Petitioner and his co-defendants guilty of the 2 murder of Juarez and the attempted murder of De la Cruz (Reporter’s 3 Transcript [“R.T.”] 7805-07, 7809-11, 7814-15, 7817-19; C.T. 1311, 4 1313, 1318-19, 1324-25, 1330-33, 1335-36). 5 Petitioner and Cole of the attempted murders of McCarty and Rodriguez, 6 but was unable to reach a verdict on those attempted murder counts as 7 to Martin and Birdsong, and the court declared a mistrial as to those 8 counts (R.T. 7802-05, 7816-17, 7820; C.T. 1321-22, 1327-28, 1333-34, 9 1336-37). 10 The jury acquitted The jury found Martin not guilty of the murder of McKillian (R.T. 7813-14; C.T. 1331, 1338). 11 12 The jury found Martin, Birdsong and Cole guilty of street 13 terrorism and found true as to all defendants the gang enhancement 14 allegations in connection with the murder of Juarez and the attempted 15 murder of De la Cruz (R.T. 7805-20; C.T. 1312, 1314-15, 1318, 1320, 16 1323-24, 1326). 17 18 The jury found not true the allegations that Martin and Birdsong 19 personally and intentionally discharged a firearm causing Juarez’ 20 death and personally and intentionally discharged a firearm in the 21 commission of the attempted murders (R.T. 7806, 7808; C.T. 1311, 22 1330). 23 and Birdsong personally and intentionally discharged a firearm within 24 the meaning of California Penal Code section 12022.53(c); (2) Martin 25 and Birdsong personally used a firearm within the meaning of 26 California Penal Code section 12022.53(b); (3) a principal personally 27 and intentionally discharged a firearm which caused Juarez’ death 28 within the meaning of California Penal Code sections 12022.53(d) and However, the jury found true the allegations that: (1) Martin 3 1 12022.53(e)(1); and (4) a principal personally and intentionally 2 discharged a firearm within the meaning of California Penal Code 3 section 12022.53(b) and (e) (R.T. 7806-07, 7810; C.T. 1311-12).1 4 jury also found true the firearm enhancements alleged against 5 Petitioner and Cole (R.T. 7806-7820; C.T. 1318-19, 1324-25, 1330-38). The 6 7 Petitioner admitted suffering a prior conviction qualifying as a 8 “strike” within the meaning of California’s Three Strikes Law, 9 California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (R.T. 10 8112).2 11 8118-19; C.T. 1386-88). Petitioner received a sentence of fifty years to life (R.T. 12 13 The California Court of Appeal ordered a correction to the 14 abstract of judgment with respect to Cole’s sentence but otherwise 15 affirmed the judgment as to all defendants (Respondent’s Lodgment 10; 16 People v. Martin, 2014 WL 3736212 (Cal. App. July 30, 2014), cert. 17 denied, 135 S. Ct. 1850 (2015)). The California Supreme Court 18 19 20 21 22 1 Section 12022.53(e)(1) provides that the firearm enhancements contained in that section “shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” 23 2 24 25 26 27 28 The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal. 4th 497, 504-05, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996). The State charged Petitioner under both versions (C.T. 616, 824). 4 1 summarily denied Petitioner’s petition for review, as well as those of 2 his co-defendants (Respondent’s Lodgment 15). 3 4 SUMMARY OF RELEVANT TRIAL EVIDENCE 5 6 The following summary is taken from the opinion of the California 7 Court of Appeal in People v. Martin, 2014 WL 3736212 (Cal. App. 8 July 30, 2014), cert. denied, 135 S. Ct. 1850 (2015). 9 Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary 10 See Slovik v. from state court decision). 11 12 Murder of William McKillian 13 14 On the morning of November 3, 2009, appellant Taaj 15 Zakee Martin, a member of the Venice Shoreline Crips gang in 16 the Venice area of Los Angeles, learned that his friend and 17 fellow Venice Shoreline Crips gang member, William Charles 18 McKillian, Jr., had been associating and regularly staying 19 with Martin’s ex-girlfriend, Raquel Miller, with whom Martin 20 had broken up about a month earlier. 21 female cousin of McKillian who lived next door to Miller, 22 asking why she had not told him that McKillian and Miller 23 had been “messin’ around.” Martin telephoned a 24 25 Sometime around 2:00 p.m. McKillian telephoned Martin 26 on a cellphone borrowed from his cousin and was overheard 27 saying “Hey, Cuz, where you at?” 28 McKillian again telephoned Martin on a phone borrowed from 5 At about 3:30 p.m. 1 another cousin, apparently upset, saying “You told me to 2 come down here. 3 returned the phone and walked toward the area of 7th and 4 Broadway near Oakwood Park in Venice. 5 his cousin heard gunshots. 6 a nearby alley. I’m here. Where are you?” McKillian A few minutes later, McKillian was shot and killed in 7 8 On a witness’s tip, the police recovered the murder 9 weapon from a dumpster a few doors away. They found no 10 fingerprints on the gun, and the DNA they recovered from it 11 could not be linked conclusively to Martin. 12 testified, with various degrees of uncertainty, to their 13 observations of a man of various descriptions looking into 14 the dumpster, and running through the alley. A few witnesses 15 16 Soon after the killing, word spread among local 17 residents and friends that Santa Monica 13, a “Mexican” 18 street gang, was responsible for killing McKillian. 19 McKillian’s cousin, who had heard of the nearby shooting and 20 knew that Martin and McKillian were close friends, texted 21 Martin’s phone from the site of the shooting about 15 22 minutes later, asking if he was okay; Martin’s only response 23 was “Why?” 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 Murder of Richard Juarez and Attempted Murder of Richard 2 De la Cruz 3 4 Shortly before 9:00 p.m. on the evening of November 3, 5 Richard Juarez and Richard De la Cruz had been sitting on a 6 bench in Virginia Avenue Park in Santa Monica, with 7 companions Chloe McCarty and Ashleigh Rodriguez. 8 belonged to the Santa Monica 13 gang; Juarez belonged to a 9 gang in another territory, but was associated with De la De la Cruz 10 Cruz and the Santa Monica 13 gang. One or two 11 African–American men approached the group, one wearing a 12 hooded gray sweatshirt over a red striped shirt, the other a 13 black sweatshirt; one had a black beanie hat. 14 the men fired several shots, killing Juarez. One man of 15 16 Witnesses heard about eight or more gunshots, and multiple 17 muzzle flashes were visible on the dashboard video recorder 18 of a police car parked nearby on Pico Boulevard. 19 shooting stopped, two men were seen running from the park, 20 south across Pico Boulevard toward 22nd Street, one wearing 21 a black sweatshirt, the other wearing a gray zip-up, hooded 22 sweatshirt. After the One was wearing a black beanie cap. 23 24 A police officer who was parked nearby on Pico Boulevard 25 heard the shots, saw the men running, and followed them in 26 his car. 27 see the men he had followed, but saw a car parked with its 28 headlights on. When he turned onto 22nd Street he could no longer When the car pulled away as he shone his 7 1 spotlight on it, the officer followed and stopped the car. 2 3 After a backup officer arrived he detained the driver and 4 passenger, appellants Norman Lovan Cole and Sean Alex 5 Mermer. 6 appellant Patrick Dwight Birdsong, Jr., from under a parked 7 van in a residential backyard on 22nd Street, near where 8 Cole and Mermer had been parked. 9 appellant Taaj Zakee Martin hiding under a tarp in a About 10 minutes later a police dog pulled The police later found 10 residential garage nearby on 21st Street. He was wearing a 11 white T-shirt, jeans, red shoes, but no sweatshirt. 12 police found two abandoned handguns nearby, one with a 13 silver barrel matching the description of the weapon used by 14 one of the shooters. 15 a dark hooded sweatshirt in the corner of the yard, and a 16 gray sweatshirt under a car parked on 21st Street. 17 testing linked the beanie cap and the black sweatshirt to 18 Birdsong, with Mermer as a minor contributor to the DNA on 19 the cap. 20 indicated [sic] their recent contact with or close proximity 21 to a gun that had been fired. The They also found a black beanie hat and DNA Gunshot residue was found on Martin and Birdsong, 22 23 A search of the car revealed a cellphone registered to 24 Martin, with DNA connecting Martin to it. 25 found in the car was registered to Mermer’s mother, at an 26 address in Lancaster. 27 Mermer phone, and on the car’s front and rear passenger 28 doors. Another phone Birdsong’s fingerprints were on the 8 1 De la Cruz, Rodriguez, and McCarty were unable to identify 2 any of the appellants. 3 4 (Respondent’s Lodgment 10, pp. 3-4;3 see People v. Martin, 2014 WL 5 3736212, at *1-2). 6 7 PETITIONER’S CONTENTIONS 8 9 Petitioner contends: 10 11 1. The trial court’s refusal to sever Petitioner’s trial from 12 the trial of Martin for the McKillian murder allegedly violated 13 Petitioner’s rights to due process and a fair trial; 14 15 16 2. The trial court allegedly erred by refusing to bifurcate the gang enhancement allegations; 17 18 3. The evidence allegedly was insufficient to support 19 Petitioner’s convictions for wilful, deliberate and premeditated 20 murder and attempted murder on a vicarious liability theory; 21 22 4. The evidence allegedly was insufficient to support the gang 23 enhancement allegations; 24 /// 25 26 27 28 3 The Court refers to Respondent’s Lodgments in a related case, Birdsong v. Biter, CV 16-1015-VAP(E). Respondent did not lodge the same documents in the present action. However, Respondent did lodge copies of the Reporter’s Transcript and the Clerk’s Transcript in the present action. 9 1 5. The evidence allegedly was insufficient to support the jury’s 2 finding that a principal personally and intentionally discharged a 3 firearm proximately causing Juarez’ death; 4 5 6. The trial court allegedly violated Petitioner’s rights to due 6 process and a fair trial by admitting assertedly unreliable cell tower 7 evidence; 8 9 7. The trial court allegedly violated Petitioner’s 10 constitutional rights by admitting the prior testimony of Richard de 11 la Cruz; 12 13 8. The trial court allegedly violated Petitioner’s rights to due 14 process and a fair trial by failing to investigate a juror’s alleged 15 use of a cell phone during trial; and 16 17 18 9. The cumulative effect of the above-described alleged errors assertedly violated due process. 19 20 STANDARD OF REVIEW 21 22 Under the “Antiterrorism and Effective Death Penalty Act of 1996" 23 (“AEDPA”), a federal court may not grant an application for writ of 24 habeas corpus on behalf of a person in state custody with respect to 25 any claim that was adjudicated on the merits in state court 26 proceedings unless the adjudication of the claim: 27 decision that was contrary to, or involved an unreasonable application 28 of, clearly established Federal law, as determined by the Supreme 10 (1) “resulted in a 1 Court of the United States”; or (2) “resulted in a decision that was 2 based on an unreasonable determination of the facts in light of the 3 evidence presented in the State court proceeding.” 4 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. 5 Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 6 (2000). 28 U.S.C. § 7 8 9 “Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the 10 state court renders its decision on the merits. 11 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). 12 A state court’s decision is “contrary to” clearly established Federal 13 law if: 14 Court law; or (2) it “confronts a set of facts . . . materially 15 indistinguishable” from a decision of the Supreme Court but reaches a 16 different result. 17 omitted); Williams v. Taylor, 529 U.S. at 405-06. Greene v. Fisher, 132 (1) it applies a rule that contradicts governing Supreme See Early v. Packer, 537 U.S. at 8 (citation 18 19 Under the “unreasonable application prong” of section 2254(d)(1), 20 a federal court may grant habeas relief “based on the application of a 21 governing legal principle to a set of facts different from those of 22 the case in which the principle was announced.” 23 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 24 U.S. at 24-26 (state court decision “involves an unreasonable 25 application” of clearly established federal law if it identifies the 26 correct governing Supreme Court law but unreasonably applies the law 27 to the facts). 28 /// 11 Lockyer v. Andrade, 1 “In order for a federal court to find a state court’s application 2 of [Supreme Court] precedent ‘unreasonable,’ the state court’s 3 decision must have been more than incorrect or erroneous.” 4 Smith, 539 U.S. 510, 520 (2003) (citation omitted). 5 court’s application must have been ‘objectively unreasonable.’” 6 at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 7 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th 8 Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005). 9 habeas court must determine what arguments or theories supported, Wiggins v. “The state Id. “Under § 2254(d), a 10 . . . or could have supported, the state court’s decision; and then it 11 must ask whether it is possible fairminded jurists could disagree that 12 those arguments or theories are inconsistent with the holding in a 13 prior decision of this Court.” 14 101 (2011). 15 2254(d)(1).” 16 Habeas relief may not issue unless “there is no possibility fairminded 17 jurists could disagree that the state court’s decision conflicts with 18 [the United States Supreme Court’s] precedents.” 19 for obtaining habeas corpus from a federal court, a state prisoner 20 must show that the state court’s ruling on the claim being presented 21 in federal court was so lacking in justification that there was an 22 error well understood and comprehended in existing law beyond any 23 possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, This is “the only question that matters under § Id. at 102 (citation and internal quotations omitted). Id. “As a condition Id. at 103. 24 25 In applying these standards to Petitioner’s exhausted claims, the 26 Court looks to the last reasoned state court decision, here the 27 decision of the California Court of Appeal. 28 Woodford, 527 F.3d 919, 925 (9th Cir. 2008). 12 See Delgadillo v. 1 DISCUSSION 2 3 I. Petitioner’s Challenge to the Trial Court’s Refusal to Sever the 4 McKillian Murder Count from the Counts Against Petitioner Does 5 Not Merit Federal Habeas Relief. 6 7 A. Background 8 9 Following the trial court’s consolidation of the Virginia Avenue 10 Park shooting counts with the McKillian murder count, Petitioner’s 11 counsel filed a motion to sever the McKillian murder count (C.T. 857- 12 68). 13 Proceedings on December 1, 2010, May 3, 2011 and June 16, 2011, at 14 309-14; C.T. 894). 15 stating that: (1) the crimes were offenses of the same class;4 (2) the 16 evidence was cross-admissible because the defendants’ belief that the 17 Santa Monica 13 gang was responsible for the McKillian murder was 18 alleged to be the defendants’ motive for the Virginia Avenue Park 19 shootings; (3) nothing about the McKillian murder would tend to 20 inflame the jury against those defendants, including Petitioner, who 21 were not charged with involvement in that murder; and (4) the jury’s 22 acquittal of Martin for the McKillian murder and the jury’s acquittal The court denied the motion (Augmented Reporter’s Transcript of The California Court of Appeal upheld this ruling, 23 24 25 26 27 28 4 California Penal Code section 954 permits the joinder of “two or more different offenses of the same class of crimes or offenses. . . .” Murder and attempted murder are crimes of the same class. See People v. Thomas, 52 Cal. 4th 336, 350, 128 Cal. Rptr. 3d 489, 256 P.3d 603 (2011), cert. denied, 132 S. Ct. 1568 (2012); People v. Stanley, 39 Cal. 4th 913, 934, 47 Cal. Rptr. 3d 420, 140 P.3d 736 (2006), cert. denied, 549 U.S. 1269 (2007). 13 1 of Cole and Petitioner for the attempted murders indicated that the 2 jury “was fully willing to separately consider the evidence relating 3 to each of the defendants and each of the charges” (Respondent’s 4 Lodgment 10, at 18-19; see People v. Martin, 2014 WL 3736212, at *10). 5 6 B. Discussion 7 8 9 As the Ninth Circuit has recognized, there exists no “clearly established Federal law, as determined by the Supreme Court of United 10 States,” mandating the severance of joined charges. 11 Scribner, 541 Fed. App’x 776, 778 (9th Cir. 2013), cert. denied, 134 12 S. Ct. 1899 (2014) (“The Supreme Court has not held that a state or 13 federal trial court’s denial of a motion to sever can, in itself, 14 violate the Constitution.”) (citations omitted); accord Hollie v. 15 Hedgpeth, 456 Fed. App’x 685, 685 (9th Cir. 2011) (federal habeas 16 relief unavailable for state court’s joinder of different charges); 17 see also Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir.), cert. 18 denied, 562 U.S. 904 (2010) (joinder of defendants asserting mutually 19 antagonistic defenses did not violate any clearly established Supreme 20 Court law). See Grajeda v. 21 22 Indeed, the United States Supreme Court has held that “improper 23 joinder does not, in itself, violate the Constitution.” 24 v. Lane, 474 U.S. 438, 446 n.8 (1986). 25 United States v. Lane that misjoinder could violate the Constitution 26 if misjoinder resulted in prejudice so great as to deny the defendant 27 the constitutional right to a fair trial. 28 474 U.S. at 446 n.8. United States The Supreme Court did state in See United States v. Lane, According to the Ninth Circuit, however, this 14 1 statement in United States v. Lane was mere dictum. See Collins v. 2 Runnels, 603 F.3d at 1132 (United States v. Lane concerned the joinder 3 standards under the Federal Rules of Criminal Procedure, and “no 4 constitutional issue was before the court.”). 5 does not constitute “clearly established” law for purposes of the 6 AEDPA standard of review. 7 (2012); see also Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 8 2012), cert. denied, 133 S. Ct. 2766 (2013) (Supreme Court has not set 9 forth clearly established law supporting a misjoinder claim). Supreme Court dictum See Howes v. Fields, 132 S. Ct. 1181, 1187 10 11 Accordingly, because no clearly established Supreme Court law 12 forbade joinder of the McKillian murder count to the counts against 13 Petitioner, Petitioner is not entitled to federal habeas relief on his 14 claim of allegedly improper joinder. 15 70, 77 (2006) (“Given the lack of holdings from this Court [on the 16 issue presented], it cannot be said that the state court 17 “unreasonabl[y] applied clearly established Federal law.”) (internal 18 brackets and citation omitted); Moses v. Payne, 555 F.3d 742, 758–59 19 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had 20 articulated no “controlling legal standard” on the issue); 28 U.S.C. § 21 2254(d). See Carey v. Musladin, 549 U.S. 22 23 In any event, Petitioner has failed to demonstrate that the trial 24 court’s denial of the motion to sever rendered Petitioner’s trial 25 fundamentally unfair. 26 misjoinder exists only “if the impermissible joinder had a substantial 27 and injurious effect or influence in determining the jury’s verdict.” 28 Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000), cert. denied, Under Ninth Circuit law, undue prejudice from 15 1 534 U.S. 847 (2001) and 534 U.S. 943 (2001) (citation omitted). 2 prejudice sometimes can arise when “joinder of counts allows evidence 3 of other crimes to be introduced in a trial where the evidence would 4 otherwise be inadmissible,” or when a “strong evidentiary case” is 5 joined with a “weaker one.” 6 burden to prove unfairness rising to the level of a due process 7 concern.” 8 Cir.), cert. denied, 531 U.S. 918 (2000) (citation omitted). Id. at 771-72. Undue Petitioner “bears the Park v. State of California, 202 F.3d 1146, 1149 (9th 9 10 Here, as the Court of Appeal indicated, evidence of the McKillian 11 murder was relevant to the issue of Petitioner’s motive and intent. 12 See Comer v. Schriro, 480 F.3d 960, 985 (9th Cir.), cert. denied, 550 13 U.S. 966 (2007) (cross-admissibility of evidence significantly reduces 14 potential of prejudice from joinder). 15 weaker or stronger than the other. 16 jury to consider the evidence separately as it applied to each 17 defendant, to decide each charge for each defendant separately, and to 18 consider the evidence of gang activity only for the limited purposes 19 of: (1) deciding the issue of the defendants’ intent, purpose or 20 knowledge required to prove the gang-related crimes and enhancements 21 charged; (2) deciding whether the defendants had a motive to commit 22 the crimes; and (3) evaluating a witness’ credibility or believability 23 (R.T. 6712, 6742-43; C.T. 1285, 1303). 24 506 U.S. 534, 539-41 (1993) (risk of prejudice from joinder of 25 multiple defendants for trial is of the type that can be cured with 26 proper instructions); New v. Uribe, 532 Fed. App’x 743, 744 (9th 27 Cir.), cert. denied, 134 S. Ct. 701 (2013) (joinder not 28 unconstitutional where “evidence of both murders was relatively strong Neither case was particularly The trial court instructed the 16 See Zafiro v. United States, 1 and cross-admissible to prove identity or intent, and the trial court 2 instructed the jury to consider each murder charge separately”). 3 jury is presumed to have followed the court’s instructions. 4 v. Angelone, 528 U.S. 225, 226 (2000). 5 Appeal recognized, the jury’s acquittal of Martin on the McKillian 6 murder count and the jury’s acquittal of Petitioner on the McCarty and 7 Rodriguez attempted murder counts show that the jury was able to, and 8 did, consider the charges separately. 9 F.3d at 1150 (jury’s failure to convict on all counts “is the best The See Weeks Furthermore, as the Court of See Park v. California, 202 10 evidence of the jury’s ability to compartmentalize the evidence”) 11 (citations and internal quotations omitted). 12 demonstrate that the trial court’s denial of his severance motion 13 violated the Constitution. 14 relief on Ground One of the Petition. Petitioner has failed to Accordingly, Petitioner is not entitled to 15 16 17 II. The Trial Court’s Failure to Bifurcate the Gang Enhancement Allegations Does Not Merit Federal Habeas Relief. 18 19 Prior to trial, Petitioner moved to bifurcate the gang 20 enhancement allegations (C.T. 917-23). 21 denied the motion (Augmented Reporter’s Transcript of Proceedings on 22 December 1, 2010, May 3, 2011 and June 16, 2011, at 656-75; C.T. 23 1026). 24 defendants, including Petitioner, had “identified no evidence that was 25 admissible in the trial only by virtue of the gang enhancement 26 allegations, but would have been inadmissible to establish the 27 appellants’ guilt of the substantive offenses,” and that “the evidence 28 of gang involvement and activity was central to the prosecution’s Following a hearing, the court The Court of Appeal upheld this ruling, reasoning that the 17 1 proof of the appellants’ motive for the Virginia Avenue Park shooting” 2 (Respondent’s Lodgment 10, p. 18; see People v. Martin, 2014 WL 3 3736212, at *9). 4 5 As indicated above, there exists no clearly established Supreme 6 Court law supporting a misjoinder claim. 7 686 F.3d at 776-77. 8 to federal habeas relief on his challenge to the trial court’s refusal 9 to bifurcate the gang enhancement allegations. See Runningeagle v. Ryan, For this reason alone, Petitioner is not entitled See 28 U.S.C. § 10 2254(d); Carey v. Musladin, 549 U.S. at 77; Moses v. Payne, 555 F.3d 11 at 758–59. 12 13 In any event, Petitioner has not shown that the failure to 14 bifurcate rendered Petitioner’s trial fundamentally unfair. 15 California, a court has discretion to bifurcate the trial of a gang 16 enhancement allegation. 17 51, 16 Cal. Rptr. 3d 880, 94 P.3d 1040 (2004). 18 is unnecessary where the evidence supporting the gang enhancement 19 allegation is admissible with respect to the issue of guilt. 20 1049-50. 21 enhancement allegation is inadmissible at the trial on the charged 22 offense, a court may deny bifurcation where additional factors favor a 23 unitary trial. In People v. Hernandez, 33 Cal. 4th 1040, 1049However, bifurcation Id. at Moreover, even if some of the evidence offered to prove the Id. at 1050. 24 25 Here, as the Court of Appeal held, the gang evidence was 26 admissible with respect to the Virginia Avenue Park offenses in order 27 to show intent and motive. 28 1087 (evidence concerning alliance between two gangs relevant to See People v. Hernandez, 33 Cal. 4th at 18 1 issues of motive and intent); see also Monarrez v. Alameda, 268 Fed. 2 App’x 651, 652 (9th Cir.), cert. denied, 555 U.S. 859 (2008) (evidence 3 of gang membership relevant to show motive); Windham v. Merkle, 163 4 F.3d 1092, 1103-04 (9th Cir. 1998) (in prosecution for murder, 5 attempted murder and assault on an aiding and abetting theory, 6 testimony of gang expert regarding retributive behavior between rival 7 gangs relevant to demonstrate defendant’s motive for participating in 8 the alleged crimes); Rodarte v. Ducart, 2015 WL 9914180, at *8-9 (C.D. 9 Cal. Nov. 2, 2015), adopted, 2016 WL 304292 (C.D. Cal. Mar. 24, 2016) 10 (failure to bifurcate gang enhancement did not entitle the petitioner 11 to habeas relief where gang evidence was relevant to issue of 12 retaliatory motive for underlying crimes of murder and attempted 13 murder); Morrison v. Denny, 2014 WL 2013393, at *7-8 (C.D. Cal. 14 Apr. 8, 2014), adopted, 2014 WL 2011687 (C.D. Cal. July 7, 2014) 15 (failure to bifurcate gang enhancement did not entitle petitioner to 16 habeas relief where gang evidence was admissible to establish motive 17 for retaliatory gang shooting). 18 19 For the foregoing reasons, the Court of Appeal’s rejection of 20 this claim was not contrary to, or an objectively unreasonable 21 application of, any clearly established Federal Law as determined by 22 the Supreme Court of the United States. 23 Harrington v. Richter, 562 U.S. 86, 100-03 (2011). 24 entitled to federal habeas relief on this claim. 25 /// 26 /// 27 /// 28 /// 19 See 28 U.S.C. § 2254(d); Petitioner is not 1 2 III. Petitioner’s Challenges to the Sufficiency of the Evidence Do Not Merit Federal Habeas Relief. 3 4 A. Governing Legal Principles 5 6 On habeas corpus, the Court’s inquiry into the sufficiency of 7 evidence is limited. 8 totally devoid of evidentiary support as to render [Petitioner’s] 9 conviction unconstitutional under the Due Process Clause of the Evidence is sufficient unless the charge was “so 10 Fourteenth Amendment.” 11 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations 12 omitted). 13 determines that no “rational trier of fact could have found the 14 essential elements of the crime beyond a reasonable doubt.” 15 v. Virginia, 443 U.S. 307, 317 (1979). 16 was “so unsupportable as to fall below the threshold of bare 17 rationality.” Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. A conviction cannot be disturbed unless the Court Jackson A verdict must stand unless it Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). 18 19 Jackson v. Virginia establishes a two-step analysis for a 20 challenge to the sufficiency of the evidence. 21 Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). 22 reviewing court must consider the evidence in the light most favorable 23 to the prosecution.” 24 Brown, 558 U.S. 120, 133 (2010).5 United States v. “First, a Id. (citation omitted); see also McDaniel v. At this step, a court “may not 25 26 5 27 28 The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). 20 1 usurp the role of the trier of fact by considering how it would have 2 resolved the conflicts, made the inferences, or considered the 3 evidence at trial.” United States v. Nevils, 598 F.3d at 1164 4 (citation omitted). “Rather, when faced with a record of historical 5 facts that supports conflicting inferences a reviewing court must 6 presume - even if it does not affirmatively appear in the record - 7 that the trier of fact resolved any such conflicts in favor of the 8 prosecution, and must defer to that resolution.” 9 internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct. Id. (citations and 10 at 2064 (“Jackson leaves [the trier of fact] broad discretion in 11 deciding what inferences to draw from the evidence presented at trial, 12 requiring only that [the trier of fact] draw reasonable inferences 13 from basic facts to ultimate facts”) (citation and internal quotations 14 omitted); Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (“it is the 15 responsibility of the jury — not the court — to decide what 16 conclusions should be drawn from evidence admitted at trial”). 17 State need not rebut all reasonable interpretations of the evidence or 18 “rule out every hypothesis except that of guilt beyond a reasonable 19 doubt at the first step of Jackson [v. Virginia].” 20 Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). 21 Circumstantial evidence and the inferences drawn therefrom can be 22 sufficient to sustain a conviction. 23 1114-15 (9th Cir. 2011). The United States v. Ngo v. Giurbino, 651 F.3d 1112, 24 25 At the second step, the court “must determine whether this 26 evidence, so viewed, is adequate to allow any rational trier of fact 27 to find the essential elements of the crime beyond a reasonable 28 doubt.” United States v. Nevils, 598 F.3d at 1164 (citation and 21 1 internal quotations omitted; original emphasis). A reviewing court 2 “may not ask itself whether it believes that the evidence at the trial 3 established guilt beyond a reasonable doubt.” 4 internal quotations omitted; original emphasis). Id. (citations and 5 6 In applying these principles, a court looks to state law for the 7 substantive elements of the criminal offense, but the minimum amount 8 of evidence that the Constitution requires to prove the offense “is 9 purely a matter of federal law.” 10 Coleman v. Johnson, 132 S. Ct. at 2064. 11 12 B. Murder and Attempted Murder Convictions 13 14 1. Background 15 16 Petitioner contends the evidence did not suffice to support his 17 murder and attempted murder convictions, arguing that he “had nothing 18 to do with the killings and lacked the requisite pre-crime knowledge 19 and intent to be convicted on a aiding and abetting theory” (Pet. 20 Mem., p. 35). 21 his car near the shooting,” and there assertedly was no evidence 22 showing that Petitioner knew about the McKillian murder, that 23 Petitioner and the co-defendants “spoke about killing anyone,” or that 24 Petitioner waited in the car while Birdsong and Martin allegedly 25 killed Juarez (id., pp. 38-39). 26 three field showups allegedly generated no identifications, that 27 eyewitnesses assertedly excluded Petitioner (a white male) as the 28 shooter, and that no DNA, fingerprints or gunshot residue evidence Petitioner contends he “just happened to be sitting in Petitioner relies on evidence that 22 1 supposedly linked Petitioner to the murder (id., p. 39). 2 3 The Court of Appeal rejected Petitioner’s claim, reasoning: 4 5 Martin and Birdsong were members of the Venice Shoreline 6 Crips gang. 7 shot and killed, rumors attributing the killing to members 8 of Santa Monica 13, a rival gang, circulated among 9 McKillian’s family and fellow Venice Shoreline Crips gang After McKillian, a member of that gang, was 10 members. A few hours later Juarez, De la Cruz, members or 11 associates of the Santa Monica 13 gang, were sitting in 12 Virginia Avenue Park when one or two African-American men 13 approached, shooting multiple rounds from a silver-barreled 14 gun and killing Juarez. 15 16 Two similarly dressed African-American men were then seen 17 running across Pico Boulevard and south on 22nd Street, 18 toward a car parked with its headlights on - which drove 19 away when a police car turned the corner. 20 African-American men - members of a historically rival gang 21 to the Santa Monica 13 gang - were found hiding in a nearby 22 backyard and garage, along with clothes matching the 23 description of those worn by the shooters. 24 linked the beanie cap and the black sweatshirt to Birdsong, 25 with Mermer as a minor contributor to the DNA on the cap. 26 Gunshot residue was found on Martin and Birdsong, indicated 27 their recent contact with or close proximity to a gun that 28 had been fired. Two DNA testing Two handguns were also found discarded 23 1 nearby, one matching the silver-barrel gun described by one 2 of Juarez’s and De la Cruz’s companions. 3 phone registered to Martin, and a phone bearing Birdsong’s 4 thumbprint. 5 phones found in the car driven by Mermer, during the time 6 after McKillian was shot up to about 15 minutes before the 7 Virginia Avenue Park shootings, indicated that Martin and 8 Mermer had conversed by telephone shortly after the 9 McKillian shooting, that Mermer and Cole had then driven In the car was a Telephone records for calls between the two 10 from Lancaster to Venice, had picked up Martin in the Venice 11 area, and had driven Martin and Birdsong to the Virginia 12 Avenue Park shortly before the shooting at that location. 13 14 This evidence supports the jury’s determinations that Martin 15 and the others were aware of McKillian’s killing and the 16 rumors that the rival Santa Monica 13 gang was responsible, 17 indicating a perceived motive to retaliate. 18 determinations that after McKillian had been shot and before 19 the Virginia Avenue Park shooting, Martin had communicated 20 repeatedly with Mermer by telephone, and that Cole and 21 Mermer had travelled to Venice to join Martin in retaliating 22 against the Santa Monica 13 gang. 23 jury’s conclusion that Martin and Birdsong were active 24 participants in the Virginia Avenue Park murder of Juarez 25 and the attempted murder of De la Cruz, and that Cole and 26 Mermer were aiders and abettors in those offenses. 27 /// 28 /// 24 It supports the It amply supports the 1 The identification of Martin and Birdsong as the Virginia 2 Avenue Park shooters is supported by the fact that after the 3 shooting two men were seen running across Pico Boulevard to 4 22nd Street, that Birdsong and Martin were found hiding 5 nearby bearing gunshot residue, and that clothes and a gun 6 matching those used by the shooters were found abandoned 7 near where they were found hiding. 8 participation as aiders and abettors is supported by the 9 evidence that after the shooting they were waiting nearby in Cole’s and Mermer’s 10 Mermer’s car, across from the park on 22nd Street in the 11 direction that the shooters had run, that they drove away 12 when the police officer approached from around the corner, 13 and that Martin’s phone was in Mermer’s car, along with 14 Mermer’s phone bearing Birdsong’s thumbprint. 15 which we must presume were believed by the jury, are amply 16 sufficient to establish the elements of the murder and 17 attempted murder for which the appellants were convicted, 18 and the participation of all four appellants in the 19 offenses. These facts, 20 21 (Respondent’s Lodgment 10, pp. 7-9; see People v. Martin, 2014 WL 22 3736212, at *4-5) (citation omitted). 23 24 2. Discussion 25 26 Under California law, “a person who aids and abets the commission 27 of a crime is a ‘principal’ in the crime, and thus shares the guilt of 28 the actual perpetrator.” People v. Prettyman, 14 Cal. 4th 248, 259, 25 1 58 Cal. Rptr. 2d 827, 926 P.2d 1013 (1996). 2 a person who, ‘acting with (1) knowledge of the unlawful purpose of 3 the perpetrator; and (2) the intent or purpose of committing, 4 encouraging, or facilitating the commission of the offense, (3) by act 5 or advice aids, promotes, encourages or instigates, the commission of 6 the crime.’” 7 knowledge and intent include “presence at the scene of the crime, 8 [and] companionship and conduct before and after the offense, 9 including flight.” Id. at 259. An aider and abettor “is Factors that are probative on the issue of People v. Mitchell, 183 Cal. App. 3d 325, 330, 228 10 Cal. Rptr. 286 (1986); see also People v. Chagolla, 144 Cal. App. 3d 11 422, 429, 193 Cal. Rptr. 711 (1983). 12 13 Here, the evidence amply supported the jury’s conclusion that 14 Petitioner aided and abetted the murder of Juarez and the attempted 15 murder of De la Cruz, including evidence that: 16 17 Chloe McCarty told police she saw one shooter in a gray 18 hooded sweatshirt fire a silver handgun at the group at the 19 park (R.T. 3959). 20 saw the two black males who had shot at her and her 21 companions run down Pico toward 22nd Street (R.T. 4279-81).6 22 The two men reached 22nd Street (R.T. 4292). 23 wearing a black hoodie and one was wearing a gray hoodie 24 (R.T. 4269-70, 4281, 4298). 25 preliminary hearing that the man wearing the gray hoodie was After the shooting, Ashleigh Rodriguez One man was Ashleigh testified at the 26 27 28 6 De la Cruz also told police that, after the shooting, he saw the two shooters running on Pico toward 22nd Street (R.T. 5784). 26 1 wearing a black beanie, although at trial she said she did 2 not recall the beanie (R.T. 4283). 3 4 Officer Federico was stopped on Pico near 21st Street 5 when he heard gunshots coming from Virginia Avenue Park 6 (R.T. 3684-87). 7 sound of the shots (R.T. 3688). 8 across Pico and down 22nd Street (R.T. 3689-90). Federico drove eastbound on Pico toward the He saw two suspects running 9 10 As Federico followed the two people down 22nd Street, 11 he observed a black Honda Fit parked on the side of the road 12 (R.T. 3690). 13 3691). 14 quickly pulled away and began traveling down 22nd Street 15 (R.T. 3691-92). 16 major intersection and waited for backup (R.T. 3692-93). 17 Upon the arrival of other officers, Federico contacted the 18 driver, who was Petitioner (R.T. 3693). 19 of the car was Cole (R.T. 3693-94). 20 camera recorded muzzle flashes at the park, the suspects 21 running across Pico and the stop of the Honda (R.T. 3695-99, 22 3903). Federico lost sight of the two suspects (R.T. When Federico illuminated the Honda, the Honda Federico stopped the Honda at the next The other occupant Federico’s dashboard 23 24 A police dog located Birdsong hiding under a van in the 25 backyard of a residence, part of a duplex, at 2116 22nd 26 Street near Pico, approximately 500 feet from the corner of 27 Virginia Avenue Park (R.T. 4034, 4045, 4038-43). 28 found a black or dark-colored sweatshirt in the backyard of 27 Police 1 the residence where Birdsong was hiding (R.T. 4045-46). 2 Police found fresh damage and a shoe print on a fence in the 3 rear yard of a residence on 21st Street, across the alley 4 from the residence where Birdsong was found (R.T. 4065-67). 5 Police found a small caliber black revolver on the ground 6 behind a patio chair in the side yard of the duplex at 2116- 7 2118 22nd Street (R.T. 4231-33, 4237, 4252-53). 8 located Martin hiding under a tarp in the garage at a house 9 under construction located midway down the block on 21st 10 Police Street (R.T. 4070-78). 11 12 A search of the Honda revealed a silver flip cell phone 13 in the cup holder in the center console and a black “Boost” 14 cell phone on the rear seat (R.T. 4323-25). 15 subscriber associated with the black cell phone (R.T. 4843, 16 5437, 5440). 17 clothing including a belt buckle with a “V” on it (R.T. 18 4326-28). 19 shape (R.T. 6026). Martin was the A duffle bag in the car’s trunk contained The Venice Shoreline Crips’ hand sign was a “V” 20 21 Police found a knit beanie and a pair of gloves in the 22 driveway of the residence at 2120 22nd Street, a home 23 located next to the duplex (R.T. 4213-16). 24 between the homes at that location, police found a large .44 25 magnum silver revolver (R.T. 4217-18, 4248, 4252). In an area 26 27 Birdsong’s fingerprints were found on the passenger 28 side rear door and front passenger side quarter panel of the 28 1 Honda and on the flip phone found inside the car (R.T. 4901, 2 4911-12, 4898-4902). 3 that of the major contributor of DNA on the black beanie, a 4 match rarer than one in a trillion (R.T. 5139, 5142-43). 5 Petitioner’s DNA was consistent with that of a minor 6 contributor of DNA on the beanie, although this consistency 7 was statistically possible in one in thirty (R.T. 5140-41). 8 Birdsong was not excluded as a possible major contributor of 9 DNA on the black sweatshirt, a match rarer than one in a Birdsong’s DNA was consistent with 10 million (R.T. 5144-45). Martin was not excluded as a 11 possible source of DNA on the black cell phone, a match 12 rarer than one in a trillion (R.T. 5146-47). 13 14 Cell phone records showed that, between the time of the 15 McKillian murder and the Virginia Avenue Park shootings, 16 several calls were made between Martin’s phone and the phone 17 registered to Petitioner’s mother (R.T. 4873-79). 18 tower data traced the route of the phone of Petitioner’s 19 mother from Lancaster to Venice on the day of the Virginia 20 Avenue Park shootings (R.T. 5485-5506). Cell 21 22 A bedroom in the home of Petitioner’s mother in 23 Lancaster appeared to be occupied by a male. There, police 24 recovered a photo album, photographs, a copy of a state 25 court gang injunction against the Venice Shoreline Crips and 26 a white t-shirt bearing the writing “Ghost Town”(R.T. 4330- 27 44). 28 Angeles (R.T. 4341). “Ghost Town” is a reference to the Venice area of Los 29 1 Photographs showed Petitioner throwing the “V” hand 2 sign with Venice Shoreline Crips gang members (R.T. 6038-39, 3 6056-57). 4 Petitioner’s mother contained writing concerning the Venice 5 Shoreline Crips and photographs of Venice Shoreline Crips 6 gang members (R.T. 6039-44). 7 opined that Petitioner, Martin, Birdsong and Cole were 8 members of the Venice Shoreline Crips (R.T. 6058-60). The photo album recovered from the house of The prosecution’s gang expert 9 10 From the above-described evidence, a rational juror could have 11 concluded, beyond a reasonable doubt, that Petitioner aided and 12 abetted the shootings at Virginia Avenue Park. 13 202 Cal. App. 3d 273, 281 n.6, 248 Cal. Rptr. 678 (1988) (“It has been 14 consistently held that one who was present . . . to take charge of an 15 automobile and to keep the engine running and to give direct aid to 16 others in making their escape, is a principal in the crime committed”) 17 (citations omitted); People v. Hammond, 181 Cal. App. 3d 463, 468 18 (1986) (defendant’s “act of driving the getaway car was ample evidence 19 of his intent to assist or facilitate [the perpetrator]”); see also 20 Vasquez v. Keran, 2009 WL 256550, at *6 (C.D. Cal. Jan. 29, 2009) 21 (evidence that the petitioner was driver of vehicle whose occupants 22 shot at three men, killing one, sufficient to show the petitioner 23 aided and abetted murder and attempted murder). 24 most favorable to the prosecution, the evidence showed that Petitioner 25 was the getaway driver in the defendants’ plan to shoot a rival gang 26 member or members in retaliation for the McKillian murder. 27 evidence belies Petitioner’s assertion that he “just happened to be 28 sitting in his car near the shooting.” 30 See People v. Bishop, Viewed in the light The Physical, fingerprint and DNA 1 evidence connected Petitioner and Cole, occupants of the Honda, with 2 Martin and Birdsong, the shooters. 3 contrary evidence and inferences, this Court must presume that the 4 jury resolved evidentiary conflicts in favor of the prosecution, and 5 cannot revisit the jury’s credibility determinations. 6 Smith, 132 S. Ct. 2, 6-7 (2011) (jury entitled to credit prosecution 7 experts’ testimony despite conflicting testimony by defense experts); 8 McDaniel v. Brown, 538 U.S. 120, 131-34 (2010) (ruling that the lower 9 federal court erroneously relied on inconsistencies in trial testimony Although Petitioner points to See Cavazos v. 10 to deem evidence legally insufficient; the reviewing federal court 11 must presume that the trier of fact resolved all inconsistencies in 12 favor of the prosecution, and must defer to that resolution); United 13 States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 14 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a 15 court does not “question a jury’s assessment of witnesses’ 16 credibility” but rather presumes that the jury resolved conflicting 17 inferences in favor of the prosecution). 18 19 Accordingly, the Court of Appeal’s rejection of Petitioner’s 20 challenge to the sufficiency of the evidence to support his 21 convictions for murder and attempted murder was not contrary to, or an 22 objectively unreasonable application of, any clearly established 23 Federal Law as determined by the Supreme Court of the United States. 24 See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 25 (2011). 26 claim. 27 /// 28 /// Petitioner is not entitled to federal habeas relief on this 31 1 C. Gang Enhancement 2 3 1. Primary Activities 4 5 California Penal Code section 186.22(b) authorizes the imposition 6 of a sentence enhancement against “any person who is convicted of a 7 felony committed for the benefit of, at the direction of, or in 8 association with any criminal street gang, with the specific intent to 9 promote, further, or assist in any criminal conduct by gang members. 10 . . .” 11 “any ongoing organization, association, or group of three or more 12 persons, whether formal or informal, having as one of its primary 13 activities the commission of one or more [enumerated] criminal acts . 14 . . , having a common name or common identifying sign or symbol, and 15 whose members individually or collectively engage in or have engaged 16 in a pattern of criminal gang activity.” 17 include assault with a deadly weapon and unlawful homicide. 18 Penal Code §§ 186.22(e)(1), (3). Section 186.22(e) defines a “criminal street gang” to mean The enumerated criminal acts Cal. 19 20 The prosecution’s gang expert testified that the expert: (1) was 21 familiar with the Venice Shoreline Crips for the past three years; 22 (2) had personal contact with approximately 60 members of that gang; 23 (3) was familiar with the area claimed by that gang and went to the 24 Oakwood area every day he was at work; and (4) regularly spoke to 25 detectives and to gang members concerning the activities of the gang, 26 including criminal activities (R.T. 6020-26). 27 testified that the primary activities of the Venice Shoreline Crips 28 “range[d] from vandalisms to narcotic sales, to street robberies, to 32 The gang expert 1 assault with deadly weapons, and range up to even murder” (R.T. 6045). 2 3 Petitioner contends the evidence did not suffice to satisfy the 4 “primary activities” element of section 186.22(b) because the 5 prosecution’s gang expert allegedly failed to testify that the Venice 6 Shoreline Crips “consistently and repeatedly engaged in the requisite 7 criminal conduct” (Pet. Mem., p. 48). 8 the testimony of the prosecution’s gang expert supplied substantial 9 evidence to satisfy the “primary activities” element (Respondent’s 10 Lodgment 10, p. 15; see People v. Martin, 2014 WL 3736212, at *8). The Court of Appeal ruled that 11 12 The Court of Appeal’s ruling was not unreasonable. The 13 prosecution’s expert testimony sufficed to show that the gang’s 14 primary activities included at least one of the enumerated offenses. 15 See Cal. Penal Code §§ 186.22(e)(1), (3); People v. Lam Than Nguyen, 16 61 Cal. 4th 1015, 1058, 191 Cal. Rptr. 3d 182, 354 P.3d 90 (2015), 17 cert. denied, 136 S. Ct. 1714 (2016) (“Sufficient proof of the gang’s 18 primary activities might consist of evidence that the group’s members 19 consistently and repeatedly have committed criminal activity listed in 20 the gang statute. 21 (quoting People v. Sengpadychith, 26 Cal. 4th 316, 324, 109 Cal. Rptr. 22 2d 851, 27 P.3d 739 (2001) (emphasis added; holding expert testimony 23 sufficient); People v. Duran, 97 Cal. App. 4th 1448, 1465, 119 Cal. 24 Rptr. 2d 272 (2002) (“The testimony of a gang expert, founded on his 25 or her conversations with gang members, personal investigation of 26 crimes committed by gang members, and information obtained from 27 colleagues in his or her own and other law enforcement agencies, may 28 be sufficient to prove a gang’s primary activities.”). Also sufficient might be expert testimony. . . .”) 33 1 2. Specific Intent 2 3 As indicated above, California Penal Code section 186.22(b)(1) 4 requires proof that the defendant harbored the “specific intent to 5 promote, further, or assist in any criminal conduct by gang members.” 6 In response to a hypothetical question based on the prosecution’s 7 evidence, the gang expert testified that a crime such as the Virginia 8 Avenue Park shooting would benefit the gang and the gang members who 9 participated in the shooting. This benefit assertedly would consist 10 of the enhancement of the gang’s reputation for violence, the 11 engendering of respect by manifesting a willingness to kill in 12 retaliation for perceived disrespect, and the enhancement of the 13 shooters’ status within the gang (R.T. 6076-79). 14 the expert’s testimony was speculative, arguing that the evidence did 15 not suffice to prove Petitioner’s specific intent because the 16 prosecution assertedly presented no evidence that the perpetrators 17 wore gang clothing, shouted gang slogans or flashed gang signs (Pet. 18 Mem., pp. 45-47). Petitioner contends 19 20 Section 196.22(b) “applies to any criminal conduct, without a 21 further requirement that the conduct be ‘apart from’ the criminal 22 conduct underlying the offense of conviction sought to be enhanced.” 23 People v. Albillar, 51 Cal. 4th 47, 66, 119 Cal. Rptr. 3d 415, 244 24 P.3d 1062 (2010) (original emphasis). 25 the defendant act with the specific intent to promote, further or 26 assist a gang; the statute requires only the specific intent to 27 promote, further, or assist criminal conduct by gang members.” 28 67 (original emphasis; citations omitted). 34 “There is no requirement that Id. at Here, the gang expert’s 1 testimony sufficed to show that Petitioner harbored the specific 2 intent to “promote, further, or assist in any criminal conduct by gang 3 members.” 4 (deeming sufficient gang expert’s testimony that the petitioner shot 5 the victim because the victim had “disrespected” the petitioner’s gang 6 and that it was important for the petitioner to maintain the respect 7 accorded to him as a gang member); People v. Vang, 52 Cal. 4th 1038, 8 1048, 132 Cal. Rptr. 3d 373, 262 P.3d 581 (2011) (“Expert opinion that 9 particular criminal conduct benefited a gang is not only permissible See Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) 10 but can be sufficient to support the Penal Code section 186.22, 11 subdivision (b)(1), gang enhancement.”) (citation and internal 12 quotations omitted); People v. Albillar, 51 Cal. 4th at 68 (“if 13 substantial evidence establishes that the defendant intended to and 14 did commit the charged felony with known members of a gang, the jury 15 may fairly infer that the defendant had the specific intent to 16 promote, further, or assist criminal conduct by those gang members”); 17 People v. Romero, 140 Cal. App. 4th 15, 18-19, 43 Cal. Rptr. 3d 862 18 (2006) (evidence sufficient to show crime was gang-related, where 19 evidence showed defendant was a gang member, shootings occurred in 20 territory and at hangout of rival gang, and gang expert testified that 21 shootings were committed for benefit of defendant’s gang, although 22 evidence did not show victims were gang members or that anyone 23 involved wore gang colors or used gang signs). 24 25 3. Conclusion 26 27 28 For the foregoing reasons, the Court of Appeal’s rejection of Petitioner’s challenges to the sufficiency of the evidence to support 35 1 the gang enhancement was not contrary to, or an objectively 2 unreasonable application of, any clearly established Federal Law as 3 determined by the Supreme Court of the United States. 4 2254(d); Harrington v. Richter, 562 U.S. at 100-03. 5 entitled to federal habeas relief on these claims. See 28 U.S.C. § Petitioner is not 6 7 D. Firearm Enhancement 8 9 California Penal Code section 12022.53(d) mandates an additional 10 and consecutive term of imprisonment in the state prison for 25 years 11 to life for any person who, in the commission of enumerated felonies 12 including murder and attempted murder, “personally and intentionally 13 discharges a firearm and proximately causes great bodily injury or 14 death.” 15 also applies to any principal in the commission of the section 16 12022.53(d) offense who “violated subdivision (b) of Section 186.22.” 17 See Garcia v. Yarborough, 2006 WL 6185670, at *10 (C.D. Cal. Apr.18, 18 2006), aff’d, 310 Fed. App’x 988 (9th Cir.), cert. denied, 558 U.S. 19 837 (2009) (“Subdivision (e) of section 12022.53 authorizes the 20 imposition of the enhanced sentence under 12022.53(d) to aiders and 21 abettors if a criminal street gang allegation is also pled and 22 proven.”) (citation omitted). Section 12022.53(e)(1)(A) provides that section 12022.53(d) 23 24 As indicated above, the jury found “not true” the allegations 25 that Martin and Birdsong personally and intentionally discharged a 26 firearm which caused Juarez’ death and personally and intentionally 27 discharged a firearm in the commission of the attempted murder of De 28 la Cruz. However, the jury found true the allegations that a 36 1 principal personally and intentionally discharged a firearm which 2 caused Juarez’ death and personally and intentionally discharged a 3 firearm in the commission of the attempted murder of De la Cruz. 4 Petitioner contends the jury’s “not true” findings regarding the 5 discharge of a firearm by Martin and Birdsong “prove[] that no 6 principal personally and intentionally discharged a firearm 7 proximately causing Juarez’ death under [section] 12022.53(d)” (Pet. 8 Mem., p. 77). 9 whether any of the four defendants discharged a firearm,” and hence Petitioner argues that “the jury never determined 10 the evidence assertedly did not support the firearm enhancement (Pet. 11 Mem., pp. 77-78). 12 13 The Court of Appeal rejected Petitioner’s claim, reasoning that 14 the verdicts showed the jury found beyond a reasonable doubt that 15 “some principal in the offense -- either Martin, Birdsong or both -- 16 discharged a handgun, but that it had some reasonable doubt as to 17 which one of them did the actual shooting” (Respondent’s Lodgment 10, 18 p. 10; see People v. Martin, 2014 WL 3736212, at *5) (original 19 emphasis). The Court of Appeal explained: 20 21 . . . 22 actual shooter does not constitute an affirmative 23 determination that neither of them fired that shot. 24 not negate the jury’s affirmative determination that a 25 principal in the offense personally and intentionally 26 discharged the handgun that killed Juarez, notwithstanding 27 that the evidence was not sufficient to identify which of 28 the appellants was the shooter. The fact that the jury was unable to identify the 37 It does 1 (Respondent’s Lodgment 10, pp. 10-11; see People v. Martin, 2014 WL 2 3736212, at *5). 3 aider and abettor must be convicted of the underlying offense to be 4 subject to the sentence enhancements contained in California Penal 5 Code section 12022.53, “there is no requirement that the principal who 6 intentionally and personally discharged the firearm must be convicted 7 of the offense, or even that he or she must be identified” 8 (Respondent’s Lodgment 10, p. 11; see People v. Martin, 2014 WL 9 3736212, at *5) (citing People v. Garcia, 28 Cal. 4th 1166, 1173-74, 10 The Court of Appeal also held that, although an 124 Cal. Rptr. 2d 464, 52 P.3d 648 (2002)).7 11 12 Moreover, to the extent that the verdicts were arguably 13 inconsistent, “inconsistent verdicts may not be used to demonstrate 14 the insufficiency of the evidence for the count on which the defendant 15 was convicted.” 16 (9th Cir.), cert. denied, 132 S. Ct. 355 (2011) (citation and footnote 17 omitted); see also United States v. Powell, 469 U.S. 57, 67 (1984) 18 (review of challenge to the sufficiency of the evidence “should be 19 independent of the jury’s determination that evidence on another count 20 was insufficient”). 21 verdicts may stand, even when a conviction is rationally incompatible 22 with an acquittal, provided there is sufficient evidence to support a 23 guilty verdict.” United States v. Ares-Garcia, 420 Fed. App’x 707, 708 “[I]t is well established that inconsistent United States v. Suarez, 682 F.3d 1214, 1218 (9th 24 7 25 26 27 28 Thus, under the Court of Appeal’s interpretation of California law, Petitioner’s argument that “the prosecution presented no evidence to identify the person who personally and intentionally fired the firearm that killed Juarez” (Traverse, p. 20, filed June 8, 2016) misses the point. Under California law, specific identification is not required to support the enhancement. 38 1 Cir. 2012) (citation, internal quotations and brackets omitted); 2 accord People v. Lewis, 25 Cal. 4th 610, 655, 106 Cal. Rptr. 2d 629, 3 22 P.3d 392, cert. denied, 534 U.S. 1045 (2001). 4 the evidence in the present case was sufficient to support the guilty 5 verdicts. 6 Rptr. 315 (1982) (evidence sufficient to support murder conviction 7 despite negative finding on firearm allegation, which “was a 8 determination more favorable to the defendant than the evidence 9 warranted”). As discussed above, See People v. Federico, 127 Cal. App. 3d 20, 33, 179 Cal. No clearly established Supreme Court law supports 10 Petitioner’s claim. 11 32 (C.D. Cal. May 18, 2011), adopted, 2011 WL 3235946 (July 27, 2011) 12 (rejecting inconsistent verdict claim where jury found untrue 13 allegations that the petitioner was armed with a firearm, but found 14 true the allegation that the petitioner personally used a firearm). See Xatruch v. Uribe, 2011 WL 3235740, at *1, 31- 15 16 The verdicts showed the jury found that Martin and Birdsong 17 personally used, and personally and intentionally discharged, a 18 firearm in the commission of the murder and that a principal 19 personally and intentionally discharged a firearm causing death to 20 Juarez. 21 Birdsong personally and intentionally discharged a firearm causing 22 Juarez’ death suggests only that the jurors may not have been able to 23 decide whether it was Martin or Birdsong who fired the shot which 24 killed Juarez. 25 law the jury could have found Petitioner guilty of the murder as an 26 aider and abettor, and could have found true the firearm enhancement 27 allegations as to Petitioner, even if the jury acquitted Martin and 28 Birdsong of the firearm enhancements, as long as the jury found true The “not true” finding on the allegation that Martin and As the Court of Appeal recognized, under California 39 1 the allegation that a principal had personally and intentionally 2 discharged a firearm causing Juarez’ death. 3 Cal. 4th at 1173-75. See People v. Garcia, 28 4 5 As the Court of Appeal ruled, Petitioner’s reliance on People v. 6 Camino, 188 Cal. App. 4th 1359, 116 Cal. Rptr. 3d 173 (2010), is 7 unavailing (see Respondent’s Lodgment 10, p.11; People v. Martin, 2014 8 WL 3736212, at *6). 9 member, Palacios, were involved in a gunfight with a rival gang, In People v. Camino, Camino and a fellow gang 10 resulting in Palacios’ death by a bullet of unknown origin. 11 Camino, 188 Cal. App. 4th at 1363. 12 Camino’s group. 13 on a provocative act theory, and found true the allegation that Camino 14 vicariously had discharged a firearm within the meaning of California 15 Penal Code sections 12022.53(c) and (c)(1). 16 shooter in Camino’s gang was the victim, and Palacios could not be a 17 principal in his own murder, the Court of Appeal held that the 18 evidence failed to support a section 12022.53(e)(1) enhancement. 19 People v. Camino, 188 Cal. App. 4th at 1380-81. 20 Petitioner’s case, either Martin or Birdsong (or both) qualified as a 21 “principal” or “principals” in the shooting; the victims were not the 22 defendants’ accomplices. Id. People v. Palacios was the only shooter in A jury found Camino guilty of Palacios’ murder However, because the only By contrast, in 23 24 For the foregoing reasons, the Court of Appeal’s rejection of 25 this claim was not contrary to, or an objectively unreasonable 26 application of, any clearly established Federal Law as determined by 27 the Supreme Court of the United States. 28 Harrington v. Richter, 562 U.S. at 100-03. 40 See 28 U.S.C. § 2254(d); Petitioner is not entitled 1 to federal habeas relief on this claim. 2 3 IV. The Admission of the Testimony of a Custodian of Records 4 Concerning Cell Tower Information Does Not Entitle Petitioner to 5 Federal Habeas Relief. 6 7 A. Background 8 9 The following summary is taken from the California Court of 10 Appeal’s opinion. 11 Cir. 2009). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th 12 13 Ricardo Leal, a “subpoena analyst” for Sprint Nextel 14 telephone company, testified concerning the contents of 15 telephone records produced by Sprint under subpoena, 16 relating to calls between the cellular telephones registered 17 to Martin and to Mermer’s mother. 18 adequacy of Leal’s qualifications and the foundation for his 19 testimony, Leal was permitted to testify to the nature of 20 the information that can and cannot be determined from the 21 subpoenaed records. 22 information provided by the telephone records, as explained 23 by Leal, constitute[d] strong circumstantial evidence 24 supporting the charges against all the defendants. 25 show[ed], the prosecution contend[ed], that Martin (in 26 Venice) and Mermer (in Lancaster) had conversed by telephone 27 shortly after the McKillian shooting, that Mermer and Cole 28 had then driven from Lancaster to Venice, had picked up Over objections to the The prosecution argued that the 41 It 1 Martin in the Venice area, and had taken Martin and Birdsong 2 to the Virginia Avenue Park shortly before the shooting at 3 that location. 4 5 Leal testified that he had been a Sprint subpoena compliance 6 analyst for eight years, that he had received on-the-job 7 training concerning how to interpret Sprint’s telephone 8 records for law enforcement, that he had been trained about 9 how Sprint’s records are generated and maintained, and that 10 he had testified in court on these subjects about 15 times. 11 He was then asked to explain the information collected by 12 Sprint and provided in response to a subpoena. 13 14 Leal testified, for example, that the records show[ed] the 15 number making the call; the date, time, and duration of the 16 call; whether the call was inbound or outbound from the 17 subscribing phone; whether the call was answered or sent to 18 voicemail; and the locations of the towers from which the 19 call was originated and terminated. 20 originating and terminating towers are usually, but not 21 necessarily, those that are then closest to the originating 22 and receiving phones, and some of the factors (such as 23 distance, terrain, and density of cellphone usage) that 24 affect[] whether the call is routed to the closest tower. 25 And he explained how a call is sometimes handed off from one 26 tower to another, usually due to changes in the telephone’s 27 location during the call. 28 location of the towers can be identified and determined from He explained that the He explained also how the 42 1 maps provided by Sprint. 2 3 The defendants objected to the foundation for Leal’s 4 testimony, based on his admitted lack of technical expertise 5 as an engineer and his inability to explain how calls are 6 routed beyond what he had been taught by Sprint. 7 argued that Leal was qualified to do no more than identify 8 the records he had brought, and “as far as what this line 9 [in the records] says, the records speak for themselves.” They 10 “He cannot testify to what towers they came off of. 11 for an expert to interpret, not him.” 12 That is overruled the objections. The trial court 13 14 Leal then testified to the information on the records he had 15 produced, concerning the cellphone registered to Martin, and 16 the phone registered to Mermer’s mother in Lancaster, which 17 had been found in Mermer’s car after the shooting. 18 Following Leal’s direct testimony, the defendants examined 19 him at length — and without limitation — about the meaning 20 of his testimony and the information in the records he had 21 provided, as well as the limits of his training and 22 expertise. 23 24 (Respondent’s Lodgment 10, pp. 20-22; see People v. Martin, 2014 WL 25 3736212, at *11-12 (footnote omitted). 26 27 28 Petitioner contends Leal’s allegedly “unreliable and speculative” testimony exceeded Leal’s expertise, purportedly in violation of due 43 1 process (Pet. Mem., pp. 55-60). The Court of Appeal rejected this 2 claim, stating that the evidence showed “it was well within [Leal’s] 3 training and expertise to explain what the telephone company records 4 do and do not show concerning the locations of the cellular towers to 5 which calls had been routed, and the times and durations of those 6 calls” (Respondent’s Lodgment 10, p. 23; see People v. Martin, 2014 WL 7 3736212, at *12). 8 9 B. Discussion 10 11 “‘The admission of evidence does not provide a basis for habeas 12 relief unless it rendered the trial fundamentally unfair in violation 13 of due process.’” 14 2009) (citation omitted); see also Jammal v. Van de Kamp, 926 F.2d 15 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is 16 “whether the admission of the evidence so fatally infected the 17 proceedings as to render them fundamentally unfair”). 18 Court has made very few rulings regarding the admission of evidence as 19 a violation of due process.” 20 “Although the Court has been clear that a writ should issue when 21 constitutional errors have rendered the trial fundamentally unfair 22 [citation], it has not yet made a clear ruling that admission of 23 irrelevant or overly prejudicial evidence constitutes a due process 24 violation sufficient to warrant issuance of the writ.” 25 Therefore, Petitioner’s challenges to the admission of Leal’s 26 testimony necessarily fail under the AEDPA standard of review. 27 U.S.C. § 2254(d). 28 /// Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. “The Supreme Holley v. Yarborough, 568 F.3d at 1101. 44 Id. See 28 1 In any event, the Court of Appeal was not unreasonable in 2 rejecting Petitioner’s challenge to Leal’s testimony. Leal testified 3 that he had worked as a subpoena analyst at Sprint/Nextel for eight 4 years (R.T. 4829). 5 small classes concerning the infrastructure and working of cell towers 6 and daily training in interpreting records for law enforcement and in 7 testifying regarding records and their accuracy (R.T. 4829, 4832). 8 Leal previously had testified approximately fifteen times (R.T. 4829- 9 30). Leal had received on-the-job training, including Under these circumstances, the admission of Leal’s testimony did 10 not render Petitioner’s trial fundamentally unfair. 11 v. Graham, 796 F.3d 332, 364-65 (4th Cir. 2015), adopted in relevant 12 part, 13 (en banc) (affirming admission of testimony of Sprint/Nextel custodian 14 of records concerning connections to and operations of cell sites and 15 conditions affecting a cellphone’s connection to a particular tower). 16 To the extent Petitioner contends the challenged testimony was 17 “unreliable,” “the potential unreliability of a type of evidence does 18 not alone render its introduction at the defendant’s trial 19 fundamentally unfair.” 20 (2012) (citation omitted). F.3d See United States , 2016 WL 3068018, at *1 n.1 (4th Cir. May 31, 2016) Perry v. New Hampshire, 132 S. Ct. 716, 728 21 22 For the foregoing reasons, the Court of Appeal’s rejection of 23 this claim was not contrary to, or an objectively unreasonable 24 application of, any clearly established Federal Law as determined by 25 the Supreme Court of the United States. 26 Harrington v. Richter, 562 U.S. at 100-03. 27 to federal habeas relief on this claim. 28 /// 45 See 28 U.S.C. § 2254(d); Petitioner is not entitled 1 V. 2 The Admission of De la Cruz’ Preliminary Hearing Testimony Does Not Entitle Petitioner to Federal Habeas Relief. 3 4 A. Introduction 5 6 California’s hearsay rule permits the admission of former 7 testimony if: (1) the witness is unavailable; and (2) the party 8 against whom the former testimony is offered was a party to the prior 9 proceeding and had the right and opportunity to cross-examine the 10 witness with an interest and motive similar to that which that party 11 has at the present hearing. 12 California Evidence Code section 240 defines the term “unavailable as 13 a witness” to include a situation in which the proponent of the absent 14 witness’ statement “has exercised due diligence but has been unable to 15 procure his or her attendance by the court’s process.” 16 Code § 240(a)(5). See Cal. Evid. Code § 1291(a)(2). Cal. Evid. 17 18 Petitioner contends the trial court improperly admitted the 19 preliminary hearing testimony of Richard de la Cruz following the 20 court’s determination that De la Cruz was “unavailable” to testify at 21 trial. 22 in finding De la Cruz unavailable and that the admission of De la 23 Cruz’ preliminary hearing testimony did not prejudice the defendants, 24 including Petitioner (Respondent’s Lodgment 10, pp. 32-34; see People 25 v. Martin, 2014 WL 3736212, at *16-18). 26 /// 27 /// 28 /// The Court of Appeal ruled that the trial court had not erred 46 1 B. Factual Background 2 3 1. Preliminary Hearing - December 10, 2009 4 5 During the preliminary hearing, the prosecutor told the court 6 that Richard de la Cruz had been subpoenaed to testify but had said he 7 would not appear (C.T. 23-24). 8 (C.T. 24). 9 (C.T. 53-54). The court issued a body attachment Later that afternoon, De la Cruz appeared and testified De la Cruz stated that he was at the park with Juarez, 10 Rodriguez and McCarty when he heard shots coming from the parking lot 11 (C.T. 55-56, 59). 12 56-57). 13 had seen nothing and did not “know who it was” (C.T. 60). 14 his testimony, De la Cruz admitted telling Lozano that De la Cruz 15 allegedly had seen two Black males in their twenties (C.T. 62). 16 denied telling Lozano that the shooter wore a black shirt and grey 17 hoodie (C.T. 63). 18 Lozano, but later said he had described the man as wearing a blue 19 shirt (C.T. 63, 80). De la Cruz allegedly ran to the teen center (C.T. De la Cruz said he told police officer Lozano that De la Cruz Later in He De la Cruz first denied describing the other man to 20 21 De la Cruz denied telling Lozano that, when the two men walked 22 up, Juarez said “Who are these tintos?” (C.T. 70-71, 74). 23 said that Juarez said “Who are these fools?” (C.T. 71). 24 telling Lozano that one of the men said “What’s up cuz” before the 25 shooting (C.T. 64). 26 the Santa Monica 13 gang (C.T. 68). 27 Lozano that the shooter or shooters ran from the parking lot toward 28 Pico after the shooting (C.T. 78). De la Cruz He denied De la Cruz denied being a self-admitted member of De la Cruz admitted he told De la Cruz said that, when police 47 1 took him to a show-up of two individuals whom police had in custody, 2 De la Cruz told police those two people were not involved in the 3 incident (C.T. 76). 4 shoelaces,” a derogatory term for Venice Shoreline Crips (C.T. 78-79). De la Cruz denied telling Lozano “[i]t was those 5 6 2. Due Diligence Hearing - August 31, 2011 7 8 9 On August 9, 2011, the first day of trial, the court again issued a body attachment for De la Cruz (C.T. 1037). On August 31, 2011, 10 during trial, the court held a “due diligence” hearing concerning 11 efforts to locate De la Cruz (R.T. 3966-67; C.T. 1108). 12 Seok Ahn and Officer Alfonso Lozano testified at the hearing. Detective Hee 13 14 a. Hee Seok Ahn 15 16 Detective Hee Seok Ahn testified as follows: 17 18 De la Cruz was 17 and had attended Santa Monica High 19 School, although he was not a current student (R.T. 3976- 20 77). 21 which yielded an “old address” in Santa Monica and indicated 22 De la Cruz’ license had been suspended or revoked (R.T. 23 3978). 24 addresses (R.T. 3983). 25 initial subpoena on De la Cruz at an apartment on Felton 26 Street in Inglewood, apparently De la Cruz’ current address 27 (R.T. 3968-69, 3975-78). 28 Cruz, who said, among other things, that he, De la Cruz, was On August 2, 2011, Ahn ran a DMV check on De la Cruz, Ahn conducted a computer check of De la Cruz’ On August 3, 2011, Ahn served the At that time, Ahn spoke to De la 48 1 living at the Felton address with his mother, who confirmed 2 that De la Cruz was living there (R.T. 3983). 3 said he was not working and not attending school (R.T. 3983- 4 84, 3990). De la Cruz 5 6 After De la Cruz failed to appear in court, Ahn 7 contacted De la Cruz’ mother but she would not tell him 8 where her son was then living (R.T. 3984). 9 stepbrother also would not reveal De la Cruz’ location (R.T. De la Cruz’ 10 3985). On August 12, 2011, Ahn went to the Felton residence 11 to attempt to locate De la Cruz and spoke with De la Cruz’ 12 brother (R.T. 3969). 13 left on August 7, the Sunday before De la Cruz was supposed 14 to appear in court on August 9, and that the brother did not 15 know where De la Cruz was (R.T. 3970-71). 16 that De la Cruz “knew he [De la Cruz] was wanted and that he 17 wasn’t going to come to court to testify” (R.T. 3970). 18 on August 12, Ahn made a “wanted persons flyer” for De la 19 Cruz and distributed it to Santa Monica police department 20 personnel (R.T. 3970-72). 21 Cruz went to school in Santa Monica and “hung out” there, 22 and many officers were “familiar with him and his hangouts” 23 (R.T. 3972). 24 Cruz in Santa Monica, where De la Cruz was known to “hang 25 out” (R.T. 3972). 26 Cruz on a daily basis and told officers that De la Cruz 27 might be at the high school, the Pico Youth Family Center, 28 the Virginia Avenue Park area or in the Pico neighborhood The brother said that De la Cruz had The brother said Also Ahn said he did so because De la Ahn asked Officer Lozano to look for De la Ahn spoke with other officers about De la 49 1 (R.T. 3973). Ahn asked Lozano to return to the Felton 2 Street address on August 18 and asked Lozano to perform a 3 computer search (R.T. 3973-74). 4 5 Ahn returned to the Felton Street address on the day of 6 the due diligence hearing, August 31, and again spoke with 7 De la Cruz’ brother (R.T. 3973). 8 did not know where De la Cruz was and had not spoken with 9 him, but that his mother had spoken to De la Cruz (R.T. 10 The brother said that he 3974). 11 12 Prior to coming to court for the hearing, Ahn performed 13 a computer check to determine whether De la Cruz was in 14 custody (R.T. 3974, 3987). 15 la Cruz (R.T. 3974). 16 had been working when Ahn served the subpoena, was no longer 17 working (R.T. 3975). 18 phone number for De la Cruz (R.T. 3975). Ahn found no new address for De The phone number for De la Cruz, which Family members said they had no new 19 20 b. Alfonso Lozano 21 22 Officer Alfonso Lozano testified as follows: 23 24 Lozano had known De la Cruz “since he was a kid,” for 25 Lozano’s entire police career of seven years, and was 26 familiar with De la Cruz’ “hangouts” (R.T. 3993-94). 27 Cruz was a Santa Monica 13 gang member whose father was a 28 shotcaller for that gang (R.T. 3993). 50 De la Lozano had last seen 1 De la Cruz in June of 2011 (R.T. 3995). 2 3 In early August, Detective Ahn contacted Lozano with 4 the request that Lozano “keep an eye out” for De la Cruz 5 (R.T. 3995). 6 officer went to the Felton Street address, but De la Cruz 7 was not there (R.T. 3995). 8 daily computer checks to make sure that the warrant was 9 still active and that De la Cruz had not been arrested in On August 12, 2011, Ahn, Lozano and another Thereafter, Lozano performed 10 another county or jurisdiction (R.T. 3995). Lozano also 11 went to various locations where he had contacted De la Cruz 12 in the past and contacted Santa Monica 13 gang members, who 13 said they did not know De la Cruz’ whereabouts (R.T. 3996). 14 On August 17, Lozano went to the Felton Street address, but 15 De la Cruz’ mother and “half brother” said they had not seen 16 De la Cruz for the past few weeks (R.T. 3996). 17 18 The trial court said that, based on the evidence then presented, 19 the court was not ready to find that De la Cruz was unavailable, 20 noting that efforts to find De la Cruz were ongoing (R.T. 4012). 21 22 3. Due Diligence Hearing - September 8, 2011 23 24 Detective Ahn and Officer Lozano testified at a further due 25 diligence hearing on September 8, 2011. 26 /// 27 /// 28 /// 51 1 At that time, Detective Ahn testified as follows: 2 3 On September 1, 2011, Ahn caused the bulletin 4 concerning De la Cruz to be sent to agencies in Los Angeles 5 County and other counties (R.T. 5466). 6 spoke to an Inglewood Police Department supervisor who said 7 he had distributed the flyer to patrol and gang officers, 8 and had briefed officers at roll call (R.T. 5466). 9 Inglewood police conducted a computer check which showed no On September 2, Ahn 10 recent contacts with De la Cruz (R.T. 5467). A utilities 11 check on the Felton Street address showed De la Cruz’ father 12 as the account holder at that location (R.T. 5466). 13 knew De la Cruz and his parents, but was unaware of any 14 other family members in the area (R.T. 5468). Ahn 15 16 Ahn served the initial subpoena on De la Cruz only, in 17 the presence of De la Cruz’ mother and stepbrother (R.T. 18 5469-71). 19 (R.T. 5471-72). 20 important that De la Cruz appear in court and that, if De la 21 Cruz did not do so, the judge would probably find De la Cruz 22 in contempt and issue an arrest warrant (R.T. 5471). 23 Cruz’ mother said she would have her son at court on the 24 court date (R.T. 5471). 25 /// 27 /// 28 Ahn explained to the mother that it was /// 26 Ahn did not serve the mother with a subpoena /// 52 De la 1 Officer Lozano testified as follows: 2 3 Since the prior hearing, Lozano had continued to look 4 for De la Cruz (R.T. 5453-55; C.T. 1138). Lozano and others 5 conducted surveillance at the home of De la Cruz’ father on 6 August 31 and September 1, but observed no activity (R.T. 7 5455-56). 8 other Los Angeles police agencies, including the West Los 9 Angeles gang unit, the Pacific gang unit, the Culver City On September 1, Lozano met with officials of 10 gang unit, the probation department, and an official in 11 charge of all the Los Angeles west bureaus (R.T. 5456). 12 Lozano told the agencies that De la Cruz was still wanted 13 and officers were trying to locate him (R.T. 5456). 14 lieutenant said that he would pass on the information to the 15 Los Angeles Police Department west and south bureaus and to 16 all of the gang units (R.T. 5456). A 17 18 Lozano said that he checked the warrant system every 19 day to confirm that the warrant was still active (R.T. 20 5456). 21 who had no record of De la Cruz in juvenile facilities (R.T. 22 5456). 23 undercover surveillance of the home of De la Cruz’ father, 24 but again saw no activity, and no one answered the door 25 (R.T. 5456-57). 26 card for De la Cruz’ father and went to the address listed 27 on the card, but no one answered the door (R.T. 5457). 28 On September 1, Lozano spoke to a probation officer, On September 2, Lozano and his partner conducted an Lozano located a 2009 field identification /// 53 1 On September 3, Lozano conducted a surveillance of the 2 Felton Street address but saw no activity (R.T. 5457). 3 Later, Lozano returned to that address and spoke to De la 4 Cruz’ brother, who again said he had not seen or spoken to 5 De la Cruz (R.T. 5457). 6 locations which Detective Ahn reportedly said De la Cruz had 7 used in the past, but was unsuccessful in locating De la 8 Cruz at any of those locations (R.T. 5457-58). Lozano went to three other 9 10 Lozano returned to the home of De la Cruz’ father and 11 spoke to the father’s alleged girlfriend, who claimed that 12 she had not seen De la Cruz for approximately a year and had 13 not seen the father for six months (R.T. 5458-59). 14 15 On Lozano’s next work day, September 6, Lozano returned 16 to one of the addresses he visited on September 3 and spoke 17 to a woman who said she had no relationship with the De la 18 Cruzes and did not know what the officers were doing there 19 (R.T. 5459). 20 and went to the addresses listed but was unsuccessful in 21 locating either De la Cruz or his father (R.T. 5459). 22 Lozano determined that De la Cruz was not in Sheriff’s 23 Department custody (R.T. 5459). 24 organizations where De la Cruz usually congregated had not 25 seen or heard of De la Cruz (R.T. 5459-60). Lozano ran the father through the DMV database Santa Monica community 26 27 28 Lozano talked to an officer who contacted De la Cruz’ ex-girlfriend, who reportedly said she did not know De la 54 1 Cruz’ whereabouts (R.T. 5460). Lozano conducted a 2 surveillance of the home of the ex-girlfriend on 3 September 6, to no avail (R.T. 5460). 4 Lozano knocked on the ex-girlfriend’s door, but no one 5 answered (R.T. 5460). 6 patrolling the neighborhood frequented by De la Cruz without 7 success (R.T. 5460-61). On September 7, Lozano and his partner had been 8 9 The trial court then ruled that the prosecution had shown due 10 diligence in attempting to locate De la Cruz, observing that the 11 officers had made “more efforts in this case than I’ve seen in the 12 vast majority of cases,” and that it was clear that De la Cruz “does 13 not wish to be here” and had been avoiding places at which he could be 14 located (R.T. 5552-53). 15 introduce De la Cruz’ preliminary hearing testimony (R.T. 5553, 5557- 16 58; C.T. 1138). The court permitted the prosecution to 17 18 C. Discussion 19 20 Petitioner contends the prosecution did not show due diligence 21 because the prosecution assertedly should have subpoenaed De la Cruz’ 22 mother (Pet. Mem., p. 64). 23 prosecution done so, the mother “could have produced De la Cruz” (id., 24 pp. 64-65). 25 /// 26 /// 27 /// 28 /// According to Petitioner, had the Petitioner argues that California Penal Code section 55 1 13288 required that Detective Ahn serve the subpoena on a parent of De 2 la Cruz, and that the court should have compelled the mother to come 3 to court and give information concerning her son’s whereabouts (id., 4 pp. 61-62). 5 that: (1) any alleged noncompliance with section 1328 did not affect 6 the diligence inquiry; (2) the defendants, including Petitioner, had 7 not shown that additional efforts to locate De la Cruz “would have 8 helped”; and (3) the evidence “amply” supported the trial court’s 9 determination of due diligence (Respondent’s Lodgment 10, p. 32; see The Court of Appeal rejected these arguments, ruling 10 People v. Martin, 2014 WL 3736212, at *17). 11 deemed the admission of the challenged testimony harmless because it 12 was “more or less consistent with the observations and testimony of 13 other witnesses and in some respects helpful to the . . . defense” 14 (Respondent’s Lodgment 10, p. 33; see People v. Martin, 2014 WL 15 3736212, at *17). The Court of Appeal also 16 17 The Confrontation Clause prohibits the admission of an out-of- 18 court testimonial statement at a criminal trial unless the witness is 19 unavailable to testify and the defendant had a prior opportunity for 20 cross-examination. 21 (“Crawford”). 22 hearing testimony was “testimonial” hearsay within the meaning of 23 Crawford, or that the defense had a prior opportunity to cross-examine Crawford v. Washington, 541 U.S. 36, 59 (2004) Neither side disputes that De la Cruz’ preliminary 24 8 25 26 27 28 At the time of Petitioner’s trial, section 1328(b)(1) provided in pertinent part that service of a subpoena on a minor “shall be made on the minor’s parent, guardian, conservator, or similar fiduciary. . . .” A 2016 amendment to the statute did not alter this particular provision. See 2016 Cal. Leg. Serv. Ch. 59 (S.B. 1471), approved by the Governor and filed with the Secretary of State on July 1, 2016. 56 1 De la Cruz (see C.T. 67-77 [defense cross-examination of De la Cruz]). 2 3 “The constitutional requirement that a witness be ‘unavailable’ 4 stands on separate footing that is independent of and in addition to 5 the requirement of a prior opportunity for cross-examination.” 6 States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (citations omitted). 7 A witness is not “unavailable” for purposes of the hearsay exception 8 for former testimony “‘unless the prosecutorial authorities have made 9 a good-faith effort to obtain [the witness’] presence at trial.’” United 10 Hardy v. Cross, 132 S. Ct. 490, 493 (2011) (quoting Barber v. Page, 11 390 U.S. 719, 724-25 (1968)); Windham v. Merkle, 163 F.3d 1092, 1102 12 (9th Cir. 1998); People v. Smith, 30 Cal. 4th 581, 609, 134 Cal. Rptr. 13 2d 1, 68 P.3d 302 (2003), cert. denied, 540 U.S. 1163 (2004) (noting 14 good faith requirement of Barber v. Page is “similar” to due diligence 15 requirement of California Evidence Code section 240(a)(5)). 16 “the law does not require the doing of a futile act, and the extent of 17 the effort the prosecutor must make is a question of reasonableness.” 18 United States v. Olafson, 213 F.3d 435, 441 (9th Cir.), cert. denied, 19 531 U.S. 914 (2000) (citation, quotations and brackets omitted). However, 20 21 In Ohio v. Roberts, 448 U.S. 56 (1980), abrogated on other 22 grounds, Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court 23 held that the prosecution had made a good faith effort to locate an 24 unavailable witness, despite the prosecution’s failure to contact a 25 social worker who might have been able to assist in finding the 26 witness. 27 although “[one], in hindsight, may always think of other things,” the 28 “great improbability that such efforts would have resulted in locating Ohio v. Roberts, 448 U.S. at 75-76. 57 The Court held that, 1 the witness, and would have led to her production at trial, 2 neutralized any intimation that a concept of reasonableness required 3 their execution.” Id. at 76. 4 5 The United States Supreme Court also addressed the issue of 6 diligence in locating a witness in Hardy v. Cross, supra. 7 case, a kidnap and sexual assault victim testified at the petitioner’s 8 first trial prior to the grant of a motion for a mistrial. 9 Cross, 132 S. Ct. at 491. In that Hardy v. Nine days prior to the retrial, the 10 prosecutor informed the court that the witness could not be located. 11 Id. at 492. 12 the witness declared unavailable and to introduce her prior testimony. 13 Id. 14 witness, although “extremely frightened,” had indicated her 15 willingness to testify at the retrial, and that the prosecution had 16 remained in “constant contact” with the witness and her mother. 17 However, approximately three weeks before the retrial, the witness had 18 disappeared. 19 investigators they did not know the witness’ whereabouts. 20 Investigators made personal visits to the witness’ home and that of 21 her father, and contacted the witness’ parents and other family 22 members. 23 examiner, the witness’ school, the family of the witness’ old 24 boyfriend, the office of the state secretary of state, the welfare 25 department, the morgue, the public health department, the jail, the 26 post office, and immigration authorities. 27 before the retrial, the witness’ mother told a detective that the 28 witness had called two weeks previously, saying she did not want to The day before the retrial, the prosecutor moved to have The prosecutor told the court that after the first trial the Id. Id. Id. The witness’ mother, father and brother told Id. Investigators also contacted the county medical 58 Id. at 492-93. The day 1 testify and would not return to the area. Id. at 493. 2 3 The trial court admitted the prior testimony and the state court 4 of appeals affirmed, ruling that the prosecution’s efforts met the 5 constitutional diligence standard. 6 States Court of Appeals for the Seventh Circuit disagreed, noting that 7 investigators had not contacted the victim’s current boyfriend and a 8 school at which the victim once had been enrolled. 9 unanimous summary per curiam disposition, the United States Supreme Id. On habeas review, the United Id. at 494. In an 10 Court reversed. 11 the deferential AEDPA standard of review, the Seventh Circuit erred in 12 deeming the state court of appeals’ determination unreasonable. 13 The Supreme Court stated that the constitution did not “require the 14 prosecution to exhaust every avenue of inquiry, no matter how 15 unpromising.” 16 deferential standard of review set out in 28 U.S.C. § 2254(d) does not 17 permit a federal court to overturn a state court’s decision on the 18 question of unavailability merely because the federal court identifies 19 additional steps that might have been taken.” Id. at 494-95. Id. The Supreme Court held that, under Id. The Court continued: “And, more to the point, the Id. at 495. 20 21 Similarly here, this Court cannot deem unreasonable the state 22 court’s diligence determination on the basis of Petitioner’s arguments 23 that more could have been done. 24 la Cruz resemble those described in Hardy v. Cross and far exceed the 25 efforts deemed deficient in Barber v. Page, 390 U.S. at 723 (“the 26 State made absolutely no effort to obtain the presence of [the 27 witness] at trial other than to ascertain that he was in federal 28 prison outside Oklahoma”). The exhaustive efforts to locate De Furthermore, no “clearly established” 59 1 Supreme Court law requires the prosecution to attempt to subpoena a 2 witness who has gone into hiding. 3 494-95 (“the issuance of a subpoena may do little good if a sexual 4 assault victim is so fearful of an assailant that she is willing to 5 risk his acquittal by failing to testify at trial”). 6 suggestion that De la Cruz’ mother would have revealed her son’s 7 whereabouts if only she had been compelled to come to court 8 constitutes dubious speculation in light of the evidence that the 9 mother repeatedly told officers she did not know her son’s See Hardy v. Cross, 132 S. Ct. at Petitioner’s 10 whereabouts. 11 inquiry that purportedly could have been pursued in an effort to 12 locate De la Cruz, the efforts that the officers did undertake were 13 not unreasonable. Although Petitioner points to other potential avenues of See Hardy v. Cross, 132 S. Ct. at 494-95.5 14 15 Therefore, the Court of Appeal’s rejection of Petitioner’s 16 Confrontation Clause claim was not contrary to, or an objectively 17 unreasonable application of, any clearly established Federal law as 18 determined by the United State Supreme Court. 19 2254(d). 20 claim. See 28 U.S.C. § Petitioner is not entitled to federal habeas relief on this 21 22 5 23 24 25 26 27 28 To the extent Petitioner contends the trial court violated state law by admitting De la Cruz’ prior testimony although the prosecution assertedly had not served a subpoena on De la Cruz’ mother, Petitioner alleges only a state law claim for which federal habeas relief is unavailable. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“it is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992) (“Federal habeas will not lie for errors of state law”). 60 1 VI. Petitioner’s Challenge to the Trial Court’s Failure to 2 Investigate a Juror’s Alleged Use of a Cell Phone During Trial 3 Does Not Merit Federal Habeas Relief. 4 5 A. Background 6 7 On the first day of trial, the prosecutor called witnesses who 8 testified concerning the McKillian murder (R.T. 2130-2220). 9 witnesses did not provide any testimony concerning Petitioner. The During 10 a break, the prosecutor said that she had seen a juror “consistently 11 on his phone” but that she did not know whether the juror was “texting 12 or surfing the web” (R.T. 2224). 13 made by the court and defense counsel that the likely subject of any 14 web search was the presence of Minerva on the Great Seal of California 15 (R.T. 2224). 16 further inquiry concerning the juror’s alleged use of a cell phone. 17 The court said it would admonish the jurors (R.T. 2224). 18 jurors reentered the courtroom, the court said: “. . . I want to 19 remind you, don’t research Minerva or anything else while we’re in 20 session here. 21 session” (R.T. 2224). There followed some joking comments Neither the prosecutor nor defense counsel requested any When the The phones stay put away, okay, while the court is in 22 23 Petitioner faults the trial court for failing to investigate the 24 juror’s use of a cell phone, analogizing the situation to that of a 25 sleeping juror (Pet. Mem., pp. 17-19). 26 the situation “indicated at most a failure to adhere to the court’s 27 instructions concerning courtroom behavior (not unusual at the trial’s 28 outset). . . .” (Respondent’s Lodgment 10, p. 39; People v. Martin, 61 The Court of Appeal ruled that 1 2014 WL 3736212, at *21). The Court of Appeal observed that 2 Petitioner sought no further inquiry, apparently satisfied with the 3 court’s admonishment to the jury, that there was no reason to doubt 4 the effectiveness of that admonishment, and that the record did not 5 show that the juror was unable to perform his duties during the 6 remainder of the trial (Respondent’s Lodgment 10, p. 39; People v. 7 Martin, 2014 WL 3736212, at *21). 8 that any error was “unquestionably harmless” because the incident 9 occurred during the first day of trial during testimony which related The Court of Appeal further held 10 to the McKillian murder, of which Martin was acquitted (Respondent’s 11 Lodgment 10, pp. 39-40; People v. Martin, 2014 WL 3736212, at *21). 12 13 B. Discussion 14 15 “Due process means a jury capable and willing to decide the case 16 solely on the evidence before it, and a trial judge ever watchful to 17 prevent prejudicial occurrences and to determine the effect of such 18 occurrences when they happen.” 19 (1982) (“Smith”). 20 bias must undertake an investigation” that is “reasonably calculated 21 to resolve doubts raised about the juror’s impartiality.” 22 Calderon, 151 F.3d 970, 974-75 (9th Cir.) (en banc), cert. denied, 525 23 U.S. 1033 (1998); see Remmer v. United States, 347 U.S. 227 (1954) 24 (“Remmer”); Smith, 455 U.S. at 215-17. 25 not stand for the proposition that any time evidence of juror bias 26 comes to light, due process requires the trial court to question the 27 jurors alleged to have bias.” 28 1044 (9th Cir. 2003), cert. denied, 543 U.S. 864 (2004). Smith v. Phillips, 455 U.S. 209, 217 “A court confronted with a colorable claim of juror Dyer v. However, “Remmer and Smith do Tracey v. Palmateer, 341 F.3d 1037, 62 1 The Ninth Circuit has held that a state court’s failure to hold a 2 sua sponte evidentiary hearing into the issue of juror bias or 3 misconduct is not contrary to, or an unreasonable application of, any 4 clearly established federal law as determined by the United States 5 Supreme Court. 6 cert. denied, 546 U.S. 1066 (2005). 7 failure to hold a sua sponte hearing in Petitioner’s case to inquire 8 concerning an allegedly inattentive juror cannot entitle Petitioner to 9 federal habeas relief. Sims v. Rowland, 414 F.3d 1148, 1152-56 (9th Cir.), Therefore, the trial court’s See 28 U.S.C. § 2254(d). 10 11 Furthermore, even if a juror is found to have been inattentive 12 during portions of the trial, “a new trial may not be required if [the 13 juror] did not miss essential portions of the trial and was able 14 fairly to consider the case.” 15 1076, 1083 n.13 (9th Cir. 1983). 16 claim of juror inattentiveness or misconduct sufficient to warrant 17 further inquiry. 18 at the time of the incident, and none argued that the juror had been 19 using the cell phone during an “essential portion” of the trial. 20 Petitioner, who was present at trial, has not alleged that he saw any 21 juror displaying inattentiveness during any portion of the trial, much 22 less during any “essential portion.” 23 any need for further inquiry or any violation of Petitioner’s right to 24 a fair trial. 25 (9th Cir. 1987) (presence of sleeping juror did not violate 26 constitution where the “testimony missed during the nap” was 27 “insubstantial”); Zarate v. Chrones, 2009 WL 866858, at *9 (C.D. Cal. 28 Mar. 25, 2009) (even assuming trial court erred in failing to conduct United States v. Barrett, 703 F.2d Petitioner has not shown a colorable None of the defense attorneys sought investigation Hence, Petitioner has not shown See United States v. Springfield, 829 F.2d 860, 864 63 1 further inquiry into whether juror was sleeping during trial, any 2 error was harmless, where petitioner failed to show juror “missed 3 essential portions of the trial” or was “unable fairly to consider the 4 case”). 5 was not contrary to, or an objectively unreasonable application of, 6 any clearly established Federal law as determined by the United States 7 Supreme Court. 8 U.S. 86, 100-03 (2011). Accordingly, the Court of Appeal’s rejection of this claim See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 9 10 Additionally, because Petitioner has failed to show that any 11 allegedly inattentive juror missed “essential portions” of the trial, 12 Petitioner has failed to show that the absence of further inquiry had 13 any “substantial and injurious effect” on the verdict within the 14 meaning of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) 15 (“Brecht”) (forbidding a grant of habeas relief for a trial-type error 16 unless the error had a “substantial and injurious effect or influence” 17 on the outcome of the case). 18 prosecutor’s revelation concerning a juror’s alleged use of a cell 19 phone largely concerned the McKillian murder. 20 Hodnett did testify that the Venice Shoreline Crips was a Venice gang, 21 that McKillian was a member of that gang, that she had seen Martin, 22 Birdsong and Cole around in Oakwood and Venice and that Cole’s 23 nickname “on the streets” was “T-Dogg” (R.T. 2151-53, 2179). 24 there was no testimony concerning Petitioner. 25 Hodnett’s testimony showed Martin, Birdsong and Cole were gang 26 members, the prosecution introduced substantial evidence, after the 27 judge’s admonishment to the jury concerning alleged cell phone use, 28 that those three defendants were gang members and/or gang associates The testimony adduced prior to the 64 Witness Lekeidra However, To the extent that 1 (see R.T. 3097-99, 3103-04, 3128-29, 3341, 3344, 3351-52, 3391-93, 2 3423-24, 3443, 3450-51, 3458-59, 3461-64, 3621-22, 3628-29, 3633, 3 6031-35, 6044-45, 6058-60). 4 the juror’s alleged use of a cell phone was harmless under the Brecht 5 standard. 6 federal habeas relief on this claim. Accordingly, the failure to investigate For all of these reasons, Petitioner is not entitled to 7 8 VII. Petitioner’s Claim of Cumulative Error Does Not Merit Federal 9 Habeas Relief. 10 11 “While the combined effect of multiple errors may violate due 12 process even when no single error amounts to a constitutional 13 violation or requires reversal, habeas relief is warranted only where 14 the errors infect a trial with unfairness.” 15 F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S. Ct. 426 (2012). 16 Habeas relief on a theory of cumulative error is appropriate when 17 there is a “‘unique symmetry’ of otherwise harmless errors, such that 18 they amplify each other in relation to a key contested issue in the 19 case.” 20 denied, 133 S. Ct. 424 (2012) (citation omitted). 21 symmetry of otherwise harmless errors exists. 22 court’s rejection of Petitioner’s cumulative error claim was not 23 contrary to, or an objectively unreasonable application of, any 24 clearly established Federal Law as determined by the Supreme Court of 25 the United States. 26 562 U.S. at 100-03. 27 relief on this claim. 28 /// Payton v. Cullen, 658 Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert. Here, no such Accordingly, the state See 28 U.S.C. § 2254(d); Harrington v. Richter, Petitioner is not entitled to federal habeas 65 1 RECOMMENDATION 2 3 For the foregoing reasons, IT IS RECOMMENDED that the Court issue 4 an Order: (1) accepting and adopting this Report and Recommendation; 5 (2) directing that Judgment be entered denying and dismissing the 6 Petition with prejudice. 7 8 DATED: August 15, 2016. 9 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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