Sean Mermer v. Neil McDowell
Filing
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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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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SEAN MERMER,
) NO. CV 16-932-VAP(E)
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Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
NEIL McDOWELL,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
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______________________________)
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This Report and Recommendation is submitted to the Honorable
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Virginia A. Phillips, United States District Judge, pursuant to 28
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U.S.C. section 636 and General Order 05-07 of the United States
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District Court for the Central District of California.
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PROCEEDINGS
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Petitioner, a state prisoner represented by counsel, filed a
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“Petition for Writ of Habeas Corpus By a Person in State Custody” on
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February 10, 2016, accompanied by a Memorandum (“Pet. Mem.”).
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Respondent filed an Answer on March 30, 2016, asserting that Grounds
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Seven, Eight, Nine, Ten and Eleven of the Petition were unexhausted.
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Petitioner filed a Traverse on April 7, 2016, disputing Respondent’s
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arguments and conditionally requesting leave to amend the Petition to
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delete any of the claims that the Court determined to be unexhausted.
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On April 27, 2016, the Court issued an “Order Adjudicating
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Exhaustion Issues, Deeming Petition Amended and Requiring Supplemental
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Answer.”
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portion of Ground Eleven which was based on Ground Nine.
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The Court found to be unexhausted Ground Nine and that
The Court
deemed the Petition to be amended to delete those Grounds.
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On May 23, 2016, Respondent filed a Supplemental Answer to the
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Petition, as deemed amended by the Court’s April 27, 2016 Order.
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On
June 8, 2016, Petitioner filed a second Traverse.
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BACKGROUND
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The State charged Petitioner and co-defendants Taaj Martin,
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Norman Cole and Patrick Birdsong with the murder of Richard Juarez and
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the attempted murders of Richard De la Cruz, Chloe McCarty and
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Ashleigh Rodriguez (Clerk’s Transcript [“C.T.”] 817-26).
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initially separate case, the State charged Martin alone with the
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murder of William McKillian (C.T. 730-31).
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granted the prosecution’s motion to consolidate the two cases
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(Augmented Reporter’s Transcript of Proceedings on November 4, 2010,
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at 22; C.T. 755).
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///
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///
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In an
Prior to trial, the court
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A jury found Petitioner and his co-defendants guilty of the
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murder of Juarez and the attempted murder of De la Cruz (Reporter’s
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Transcript [“R.T.”] 7805-07, 7809-11, 7814-15, 7817-19; C.T. 1311,
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1313, 1318-19, 1324-25, 1330-33, 1335-36).
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Petitioner and Cole of the attempted murders of McCarty and Rodriguez,
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but was unable to reach a verdict on those attempted murder counts as
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to Martin and Birdsong, and the court declared a mistrial as to those
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counts (R.T. 7802-05, 7816-17, 7820; C.T. 1321-22, 1327-28, 1333-34,
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1336-37).
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The jury acquitted
The jury found Martin not guilty of the murder of McKillian
(R.T. 7813-14; C.T. 1331, 1338).
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The jury found Martin, Birdsong and Cole guilty of street
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terrorism and found true as to all defendants the gang enhancement
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allegations in connection with the murder of Juarez and the attempted
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murder of De la Cruz (R.T. 7805-20; C.T. 1312, 1314-15, 1318, 1320,
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1323-24, 1326).
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The jury found not true the allegations that Martin and Birdsong
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personally and intentionally discharged a firearm causing Juarez’
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death and personally and intentionally discharged a firearm in the
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commission of the attempted murders (R.T. 7806, 7808; C.T. 1311,
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1330).
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and Birdsong personally and intentionally discharged a firearm within
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the meaning of California Penal Code section 12022.53(c); (2) Martin
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and Birdsong personally used a firearm within the meaning of
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California Penal Code section 12022.53(b); (3) a principal personally
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and intentionally discharged a firearm which caused Juarez’ death
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within the meaning of California Penal Code sections 12022.53(d) and
However, the jury found true the allegations that: (1) Martin
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12022.53(e)(1); and (4) a principal personally and intentionally
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discharged a firearm within the meaning of California Penal Code
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section 12022.53(b) and (e) (R.T. 7806-07, 7810; C.T. 1311-12).1
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jury also found true the firearm enhancements alleged against
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Petitioner and Cole (R.T. 7806-7820; C.T. 1318-19, 1324-25, 1330-38).
The
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Petitioner admitted suffering a prior conviction qualifying as a
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“strike” within the meaning of California’s Three Strikes Law,
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California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (R.T.
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8112).2
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8118-19; C.T. 1386-88).
Petitioner received a sentence of fifty years to life (R.T.
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The California Court of Appeal ordered a correction to the
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abstract of judgment with respect to Cole’s sentence but otherwise
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affirmed the judgment as to all defendants (Respondent’s Lodgment 10;
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People v. Martin, 2014 WL 3736212 (Cal. App. July 30, 2014), cert.
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denied, 135 S. Ct. 1850 (2015)).
The California Supreme Court
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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).”
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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).
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summarily denied Petitioner’s petition for review, as well as those of
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his co-defendants (Respondent’s Lodgment 15).
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SUMMARY OF RELEVANT TRIAL EVIDENCE
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The following summary is taken from the opinion of the California
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Court of Appeal in People v. Martin, 2014 WL 3736212 (Cal. App.
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July 30, 2014), cert. denied, 135 S. Ct. 1850 (2015).
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Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary
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See Slovik v.
from state court decision).
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Murder of William McKillian
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On the morning of November 3, 2009, appellant Taaj
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Zakee Martin, a member of the Venice Shoreline Crips gang in
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the Venice area of Los Angeles, learned that his friend and
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fellow Venice Shoreline Crips gang member, William Charles
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McKillian, Jr., had been associating and regularly staying
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with Martin’s ex-girlfriend, Raquel Miller, with whom Martin
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had broken up about a month earlier.
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female cousin of McKillian who lived next door to Miller,
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asking why she had not told him that McKillian and Miller
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had been “messin’ around.”
Martin telephoned a
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Sometime around 2:00 p.m. McKillian telephoned Martin
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on a cellphone borrowed from his cousin and was overheard
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saying “Hey, Cuz, where you at?”
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McKillian again telephoned Martin on a phone borrowed from
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At about 3:30 p.m.
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another cousin, apparently upset, saying “You told me to
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come down here.
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returned the phone and walked toward the area of 7th and
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Broadway near Oakwood Park in Venice.
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his cousin heard gunshots.
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a nearby alley.
I’m here.
Where are you?”
McKillian
A few minutes later,
McKillian was shot and killed in
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On a witness’s tip, the police recovered the murder
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weapon from a dumpster a few doors away.
They found no
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fingerprints on the gun, and the DNA they recovered from it
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could not be linked conclusively to Martin.
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testified, with various degrees of uncertainty, to their
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observations of a man of various descriptions looking into
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the dumpster, and running through the alley.
A few witnesses
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Soon after the killing, word spread among local
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residents and friends that Santa Monica 13, a “Mexican”
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street gang, was responsible for killing McKillian.
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McKillian’s cousin, who had heard of the nearby shooting and
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knew that Martin and McKillian were close friends, texted
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Martin’s phone from the site of the shooting about 15
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minutes later, asking if he was okay; Martin’s only response
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was “Why?”
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///
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///
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Murder of Richard Juarez and Attempted Murder of Richard
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De la Cruz
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Shortly before 9:00 p.m. on the evening of November 3,
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Richard Juarez and Richard De la Cruz had been sitting on a
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bench in Virginia Avenue Park in Santa Monica, with
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companions Chloe McCarty and Ashleigh Rodriguez.
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belonged to the Santa Monica 13 gang; Juarez belonged to a
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gang in another territory, but was associated with De la
De la Cruz
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Cruz and the Santa Monica 13 gang.
One or two
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African–American men approached the group, one wearing a
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hooded gray sweatshirt over a red striped shirt, the other a
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black sweatshirt; one had a black beanie hat.
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the men fired several shots, killing Juarez.
One man of
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Witnesses heard about eight or more gunshots, and multiple
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muzzle flashes were visible on the dashboard video recorder
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of a police car parked nearby on Pico Boulevard.
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shooting stopped, two men were seen running from the park,
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south across Pico Boulevard toward 22nd Street, one wearing
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a black sweatshirt, the other wearing a gray zip-up, hooded
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sweatshirt.
After the
One was wearing a black beanie cap.
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A police officer who was parked nearby on Pico Boulevard
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heard the shots, saw the men running, and followed them in
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his car.
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see the men he had followed, but saw a car parked with its
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headlights on.
When he turned onto 22nd Street he could no longer
When the car pulled away as he shone his
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spotlight on it, the officer followed and stopped the car.
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After a backup officer arrived he detained the driver and
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passenger, appellants Norman Lovan Cole and Sean Alex
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Mermer.
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appellant Patrick Dwight Birdsong, Jr., from under a parked
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van in a residential backyard on 22nd Street, near where
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Cole and Mermer had been parked.
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appellant Taaj Zakee Martin hiding under a tarp in a
About 10 minutes later a police dog pulled
The police later found
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residential garage nearby on 21st Street.
He was wearing a
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white T-shirt, jeans, red shoes, but no sweatshirt.
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police found two abandoned handguns nearby, one with a
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silver barrel matching the description of the weapon used by
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one of the shooters.
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a dark hooded sweatshirt in the corner of the yard, and a
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gray sweatshirt under a car parked on 21st Street.
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testing linked the beanie cap and the black sweatshirt to
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Birdsong, with Mermer as a minor contributor to the DNA on
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the cap.
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indicated [sic] their recent contact with or close proximity
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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,
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A search of the car revealed a cellphone registered to
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Martin, with DNA connecting Martin to it.
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found in the car was registered to Mermer’s mother, at an
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address in Lancaster.
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Mermer phone, and on the car’s front and rear passenger
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doors.
Another phone
Birdsong’s fingerprints were on the
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De la Cruz, Rodriguez, and McCarty were unable to identify
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any of the appellants.
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(Respondent’s Lodgment 10, pp. 3-4;3 see People v. Martin, 2014 WL
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3736212, at *1-2).
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PETITIONER’S CONTENTIONS
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Petitioner contends:
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1.
The trial court’s refusal to sever Petitioner’s trial from
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the trial of Martin for the McKillian murder allegedly violated
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Petitioner’s rights to due process and a fair trial;
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2.
The trial court allegedly erred by refusing to bifurcate the
gang enhancement allegations;
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3.
The evidence allegedly was insufficient to support
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Petitioner’s convictions for wilful, deliberate and premeditated
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murder and attempted murder on a vicarious liability theory;
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4.
The evidence allegedly was insufficient to support the gang
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enhancement allegations;
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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.
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5.
The evidence allegedly was insufficient to support the jury’s
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finding that a principal personally and intentionally discharged a
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firearm proximately causing Juarez’ death;
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6.
The trial court allegedly violated Petitioner’s rights to due
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process and a fair trial by admitting assertedly unreliable cell tower
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evidence;
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7.
The trial court allegedly violated Petitioner’s
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constitutional rights by admitting the prior testimony of Richard de
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la Cruz;
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8.
The trial court allegedly violated Petitioner’s rights to due
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process and a fair trial by failing to investigate a juror’s alleged
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use of a cell phone during trial; and
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9.
The cumulative effect of the above-described alleged errors
assertedly violated due process.
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STANDARD OF REVIEW
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Under the “Antiterrorism and Effective Death Penalty Act of 1996"
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(“AEDPA”), a federal court may not grant an application for writ of
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habeas corpus on behalf of a person in state custody with respect to
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any claim that was adjudicated on the merits in state court
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proceedings unless the adjudication of the claim:
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decision that was contrary to, or involved an unreasonable application
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of, clearly established Federal law, as determined by the Supreme
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(1) “resulted in a
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Court of the United States”; or (2) “resulted in a decision that was
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based on an unreasonable determination of the facts in light of the
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evidence presented in the State court proceeding.”
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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.
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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09
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(2000).
28 U.S.C. §
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“Clearly established Federal law” refers to the governing legal
principle or principles set forth by the Supreme Court at the time the
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state court renders its decision on the merits.
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S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
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A state court’s decision is “contrary to” clearly established Federal
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law if:
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Court law; or (2) it “confronts a set of facts . . . materially
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indistinguishable” from a decision of the Supreme Court but reaches a
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different result.
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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
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Under the “unreasonable application prong” of section 2254(d)(1),
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a federal court may grant habeas relief “based on the application of a
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governing legal principle to a set of facts different from those of
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the case in which the principle was announced.”
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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537
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U.S. at 24-26 (state court decision “involves an unreasonable
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application” of clearly established federal law if it identifies the
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correct governing Supreme Court law but unreasonably applies the law
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to the facts).
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///
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Lockyer v. Andrade,
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“In order for a federal court to find a state court’s application
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of [Supreme Court] precedent ‘unreasonable,’ the state court’s
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decision must have been more than incorrect or erroneous.”
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Smith, 539 U.S. 510, 520 (2003) (citation omitted).
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court’s application must have been ‘objectively unreasonable.’”
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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555
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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th
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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).
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habeas court must determine what arguments or theories supported,
Wiggins v.
“The state
Id.
“Under § 2254(d), a
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. . . or could have supported, the state court’s decision; and then it
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must ask whether it is possible fairminded jurists could disagree that
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those arguments or theories are inconsistent with the holding in a
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prior decision of this Court.”
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101 (2011).
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2254(d)(1).”
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Habeas relief may not issue unless “there is no possibility fairminded
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jurists could disagree that the state court’s decision conflicts with
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[the United States Supreme Court’s] precedents.”
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for obtaining habeas corpus from a federal court, a state prisoner
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must show that the state court’s ruling on the claim being presented
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in federal court was so lacking in justification that there was an
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error well understood and comprehended in existing law beyond any
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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.
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In applying these standards to Petitioner’s exhausted claims, the
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Court looks to the last reasoned state court decision, here the
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decision of the California Court of Appeal.
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Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
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See Delgadillo v.
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DISCUSSION
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I.
Petitioner’s Challenge to the Trial Court’s Refusal to Sever the
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McKillian Murder Count from the Counts Against Petitioner Does
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Not Merit Federal Habeas Relief.
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A.
Background
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Following the trial court’s consolidation of the Virginia Avenue
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Park shooting counts with the McKillian murder count, Petitioner’s
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counsel filed a motion to sever the McKillian murder count (C.T. 857-
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68).
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Proceedings on December 1, 2010, May 3, 2011 and June 16, 2011, at
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309-14; C.T. 894).
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stating that: (1) the crimes were offenses of the same class;4 (2) the
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evidence was cross-admissible because the defendants’ belief that the
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Santa Monica 13 gang was responsible for the McKillian murder was
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alleged to be the defendants’ motive for the Virginia Avenue Park
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shootings; (3) nothing about the McKillian murder would tend to
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inflame the jury against those defendants, including Petitioner, who
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were not charged with involvement in that murder; and (4) the jury’s
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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,
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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).
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of Cole and Petitioner for the attempted murders indicated that the
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jury “was fully willing to separately consider the evidence relating
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to each of the defendants and each of the charges” (Respondent’s
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Lodgment 10, at 18-19; see People v. Martin, 2014 WL 3736212, at *10).
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B.
Discussion
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As the Ninth Circuit has recognized, there exists no “clearly
established Federal law, as determined by the Supreme Court of United
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States,” mandating the severance of joined charges.
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Scribner, 541 Fed. App’x 776, 778 (9th Cir. 2013), cert. denied, 134
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S. Ct. 1899 (2014) (“The Supreme Court has not held that a state or
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federal trial court’s denial of a motion to sever can, in itself,
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violate the Constitution.”) (citations omitted); accord Hollie v.
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Hedgpeth, 456 Fed. App’x 685, 685 (9th Cir. 2011) (federal habeas
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relief unavailable for state court’s joinder of different charges);
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see also Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir.), cert.
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denied, 562 U.S. 904 (2010) (joinder of defendants asserting mutually
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antagonistic defenses did not violate any clearly established Supreme
20
Court law).
See Grajeda v.
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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).
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United States v. Lane that misjoinder could violate the Constitution
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if misjoinder resulted in prejudice so great as to deny the defendant
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the constitutional right to a fair trial.
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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
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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.
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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
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“unreasonabl[y] applied clearly established Federal law.”) (internal
18
brackets and citation omitted); Moses v. Payne, 555 F.3d 742, 758–59
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(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
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In any event, Petitioner has failed to demonstrate that the trial
24
court’s denial of the motion to sever rendered Petitioner’s trial
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fundamentally unfair.
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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
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joined with a “weaker one.”
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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).
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weaker or stronger than the other.
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jury to consider the evidence separately as it applied to each
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defendant, to decide each charge for each defendant separately, and to
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consider the evidence of gang activity only for the limited purposes
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of: (1) deciding the issue of the defendants’ intent, purpose or
20
knowledge required to prove the gang-related crimes and enhancements
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charged; (2) deciding whether the defendants had a motive to commit
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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
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1
further inquiry into whether juror was sleeping during trial, any
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error was harmless, where petitioner failed to show juror “missed
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essential portions of the trial” or was “unable fairly to consider the
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case”).
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was not contrary to, or an objectively unreasonable application of,
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any clearly established Federal law as determined by the United States
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Supreme Court.
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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
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10
Additionally, because Petitioner has failed to show that any
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allegedly inattentive juror missed “essential portions” of the trial,
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Petitioner has failed to show that the absence of further inquiry had
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any “substantial and injurious effect” on the verdict within the
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meaning of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)
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(“Brecht”) (forbidding a grant of habeas relief for a trial-type error
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unless the error had a “substantial and injurious effect or influence”
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on the outcome of the case).
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prosecutor’s revelation concerning a juror’s alleged use of a cell
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phone largely concerned the McKillian murder.
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Hodnett did testify that the Venice Shoreline Crips was a Venice gang,
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that McKillian was a member of that gang, that she had seen Martin,
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Birdsong and Cole around in Oakwood and Venice and that Cole’s
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nickname “on the streets” was “T-Dogg” (R.T. 2151-53, 2179).
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there was no testimony concerning Petitioner.
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Hodnett’s testimony showed Martin, Birdsong and Cole were gang
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members, the prosecution introduced substantial evidence, after the
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judge’s admonishment to the jury concerning alleged cell phone use,
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that those three defendants were gang members and/or gang associates
The testimony adduced prior to the
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Witness Lekeidra
However,
To the extent that
1
(see R.T. 3097-99, 3103-04, 3128-29, 3341, 3344, 3351-52, 3391-93,
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3423-24, 3443, 3450-51, 3458-59, 3461-64, 3621-22, 3628-29, 3633,
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6031-35, 6044-45, 6058-60).
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the juror’s alleged use of a cell phone was harmless under the Brecht
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standard.
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federal habeas relief on this claim.
Accordingly, the failure to investigate
For all of these reasons, Petitioner is not entitled to
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8
VII. Petitioner’s Claim of Cumulative Error Does Not Merit Federal
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Habeas Relief.
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11
“While the combined effect of multiple errors may violate due
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process even when no single error amounts to a constitutional
13
violation or requires reversal, habeas relief is warranted only where
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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
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they amplify each other in relation to a key contested issue in the
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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
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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
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RECOMMENDATION
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For the foregoing reasons, IT IS RECOMMENDED that the Court issue
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an Order: (1) accepting and adopting this Report and Recommendation;
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(2) directing that Judgment be entered denying and dismissing the
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Petition with prejudice.
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DATED: August 15, 2016.
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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
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NOTICE
Reports and Recommendations are not appealable to the Court of
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Appeals, but may be subject to the right of any party to file
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objections as provided in the Local Rules Governing the Duties of
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Magistrate Judges and review by the District Judge whose initials
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appear in the docket number.
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Federal Rules of Appellate Procedure should be filed until entry of
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the judgment of the District Court.
No notice of appeal pursuant to the
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If the District Judge enters judgment adverse to Petitioner, the
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District Judge will, at the same time, issue or deny a certificate of
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appealability.
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and Recommendation, the parties may file written arguments regarding
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whether a certificate of appealability should issue.
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Within twenty (20) days of the filing of this Report
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