Sean Mermer v. Neil McDowell

Filing 24

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

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15

SEAN MERMER,

) NO. CV 16-932-VAP(E)
)
Petitioner,
)
)
v.
) REPORT AND RECOMMENDATION OF
)
NEIL McDOWELL,
) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
)
______________________________)

16
17
18

This Report and Recommendation is submitted to the Honorable

19

Virginia A. Phillips, United States District Judge, pursuant to 28

20

U.S.C. section 636 and General Order 05-07 of the United States

21

District Court for the Central District of California.

22
23

PROCEEDINGS

24
25

Petitioner, a state prisoner represented by counsel, filed a

26

“Petition for Writ of Habeas Corpus By a Person in State Custody” on

27

February 10, 2016, accompanied by a Memorandum (“Pet. Mem.”).

28

Respondent filed an Answer on March 30, 2016, asserting that Grounds

1

Seven, Eight, Nine, Ten and Eleven of the Petition were unexhausted.

2

Petitioner filed a Traverse on April 7, 2016, disputing Respondent’s

3

arguments and conditionally requesting leave to amend the Petition to

4

delete any of the claims that the Court determined to be unexhausted.

5
6

On April 27, 2016, the Court issued an “Order Adjudicating

7

Exhaustion Issues, Deeming Petition Amended and Requiring Supplemental

8

Answer.”

9

portion of Ground Eleven which was based on Ground Nine.

10

The Court found to be unexhausted Ground Nine and that
The Court

deemed the Petition to be amended to delete those Grounds.

11
12

On May 23, 2016, Respondent filed a Supplemental Answer to the

13

Petition, as deemed amended by the Court’s April 27, 2016 Order.

14

On

June 8, 2016, Petitioner filed a second Traverse.

15
16

BACKGROUND

17
18

The State charged Petitioner and co-defendants Taaj Martin,

19

Norman Cole and Patrick Birdsong with the murder of Richard Juarez and

20

the attempted murders of Richard De la Cruz, Chloe McCarty and

21

Ashleigh Rodriguez (Clerk’s Transcript [“C.T.”] 817-26).

22

initially separate case, the State charged Martin alone with the

23

murder of William McKillian (C.T. 730-31).

24

granted the prosecution’s motion to consolidate the two cases

25

(Augmented Reporter’s Transcript of Proceedings on November 4, 2010,

26

at 22; C.T. 755).

27

///

28

///
2

In an

Prior to trial, the court

1

A jury found Petitioner and his co-defendants guilty of the

2

murder of Juarez and the attempted murder of De la Cruz (Reporter’s

3

Transcript [“R.T.”] 7805-07, 7809-11, 7814-15, 7817-19; C.T. 1311,

4

1313, 1318-19, 1324-25, 1330-33, 1335-36).

5

Petitioner and Cole of the attempted murders of McCarty and Rodriguez,

6

but was unable to reach a verdict on those attempted murder counts as

7

to Martin and Birdsong, and the court declared a mistrial as to those

8

counts (R.T. 7802-05, 7816-17, 7820; C.T. 1321-22, 1327-28, 1333-34,

9

1336-37).

10

The jury acquitted

The jury found Martin not guilty of the murder of McKillian

(R.T. 7813-14; C.T. 1331, 1338).

11
12

The jury found Martin, Birdsong and Cole guilty of street

13

terrorism and found true as to all defendants the gang enhancement

14

allegations in connection with the murder of Juarez and the attempted

15

murder of De la Cruz (R.T. 7805-20; C.T. 1312, 1314-15, 1318, 1320,

16

1323-24, 1326).

17
18

The jury found not true the allegations that Martin and Birdsong

19

personally and intentionally discharged a firearm causing Juarez’

20

death and personally and intentionally discharged a firearm in the

21

commission of the attempted murders (R.T. 7806, 7808; C.T. 1311,

22

1330).

23

and Birdsong personally and intentionally discharged a firearm within

24

the meaning of California Penal Code section 12022.53(c); (2) Martin

25

and Birdsong personally used a firearm within the meaning of

26

California Penal Code section 12022.53(b); (3) a principal personally

27

and intentionally discharged a firearm which caused Juarez’ death

28

within the meaning of California Penal Code sections 12022.53(d) and

However, the jury found true the allegations that: (1) Martin

3

1

12022.53(e)(1); and (4) a principal personally and intentionally

2

discharged a firearm within the meaning of California Penal Code

3

section 12022.53(b) and (e) (R.T. 7806-07, 7810; C.T. 1311-12).1

4

jury also found true the firearm enhancements alleged against

5

Petitioner and Cole (R.T. 7806-7820; C.T. 1318-19, 1324-25, 1330-38).

The

6
7

Petitioner admitted suffering a prior conviction qualifying as a

8

“strike” within the meaning of California’s Three Strikes Law,

9

California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (R.T.

10

8112).2

11

8118-19; C.T. 1386-88).

Petitioner received a sentence of fifty years to life (R.T.

12
13

The California Court of Appeal ordered a correction to the

14

abstract of judgment with respect to Cole’s sentence but otherwise

15

affirmed the judgment as to all defendants (Respondent’s Lodgment 10;

16

People v. Martin, 2014 WL 3736212 (Cal. App. July 30, 2014), cert.

17

denied, 135 S. Ct. 1850 (2015)).

The California Supreme Court

18
19
20
21
22

1

Section 12022.53(e)(1) provides that the firearm
enhancements contained in that section “shall apply to any person
who is a principal in the commission of an offense if both of the
following are pled and proved: [¶] (A) The person violated
subdivision (b) of Section 186.22. [¶] (B) Any principal in the
offense committed any act specified in subdivision (b), (c), or
(d).”

23
2

24
25
26
27
28

The Three Strikes Law consists of two nearly identical
statutory schemes. The earlier provision, enacted by the
Legislature, was passed as an urgency measure, and is codified as
California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The
later provision, an initiative statute, is embodied in California
Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People
v. Superior Court (Romero), 13 Cal. 4th 497, 504-05, 53 Cal.
Rptr. 2d 789, 917 P.2d 628 (1996). The State charged Petitioner
under both versions (C.T. 616, 824).
4

1

summarily denied Petitioner’s petition for review, as well as those of

2

his co-defendants (Respondent’s Lodgment 15).

3
4

SUMMARY OF RELEVANT TRIAL EVIDENCE

5
6

The following summary is taken from the opinion of the California

7

Court of Appeal in People v. Martin, 2014 WL 3736212 (Cal. App.

8

July 30, 2014), cert. denied, 135 S. Ct. 1850 (2015).

9

Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary

10

See Slovik v.

from state court decision).

11
12

Murder of William McKillian

13
14

On the morning of November 3, 2009, appellant Taaj

15

Zakee Martin, a member of the Venice Shoreline Crips gang in

16

the Venice area of Los Angeles, learned that his friend and

17

fellow Venice Shoreline Crips gang member, William Charles

18

McKillian, Jr., had been associating and regularly staying

19

with Martin’s ex-girlfriend, Raquel Miller, with whom Martin

20

had broken up about a month earlier.

21

female cousin of McKillian who lived next door to Miller,

22

asking why she had not told him that McKillian and Miller

23

had been “messin’ around.”

Martin telephoned a

24
25

Sometime around 2:00 p.m. McKillian telephoned Martin

26

on a cellphone borrowed from his cousin and was overheard

27

saying “Hey, Cuz, where you at?”

28

McKillian again telephoned Martin on a phone borrowed from
5

At about 3:30 p.m.

1

another cousin, apparently upset, saying “You told me to

2

come down here.

3

returned the phone and walked toward the area of 7th and

4

Broadway near Oakwood Park in Venice.

5

his cousin heard gunshots.

6

a nearby alley.

I’m here.

Where are you?”

McKillian

A few minutes later,

McKillian was shot and killed in

7
8

On a witness’s tip, the police recovered the murder

9

weapon from a dumpster a few doors away.

They found no

10

fingerprints on the gun, and the DNA they recovered from it

11

could not be linked conclusively to Martin.

12

testified, with various degrees of uncertainty, to their

13

observations of a man of various descriptions looking into

14

the dumpster, and running through the alley.

A few witnesses

15
16

Soon after the killing, word spread among local

17

residents and friends that Santa Monica 13, a “Mexican”

18

street gang, was responsible for killing McKillian.

19

McKillian’s cousin, who had heard of the nearby shooting and

20

knew that Martin and McKillian were close friends, texted

21

Martin’s phone from the site of the shooting about 15

22

minutes later, asking if he was okay; Martin’s only response

23

was “Why?”

24

///

25

///

26

///

27

///

28

///
6

1

Murder of Richard Juarez and Attempted Murder of Richard

2

De la Cruz

3
4

Shortly before 9:00 p.m. on the evening of November 3,

5

Richard Juarez and Richard De la Cruz had been sitting on a

6

bench in Virginia Avenue Park in Santa Monica, with

7

companions Chloe McCarty and Ashleigh Rodriguez.

8

belonged to the Santa Monica 13 gang; Juarez belonged to a

9

gang in another territory, but was associated with De la

De la Cruz

10

Cruz and the Santa Monica 13 gang.

One or two

11

African–American men approached the group, one wearing a

12

hooded gray sweatshirt over a red striped shirt, the other a

13

black sweatshirt; one had a black beanie hat.

14

the men fired several shots, killing Juarez.

One man of

15
16

Witnesses heard about eight or more gunshots, and multiple

17

muzzle flashes were visible on the dashboard video recorder

18

of a police car parked nearby on Pico Boulevard.

19

shooting stopped, two men were seen running from the park,

20

south across Pico Boulevard toward 22nd Street, one wearing

21

a black sweatshirt, the other wearing a gray zip-up, hooded

22

sweatshirt.

After the

One was wearing a black beanie cap.

23
24

A police officer who was parked nearby on Pico Boulevard

25

heard the shots, saw the men running, and followed them in

26

his car.

27

see the men he had followed, but saw a car parked with its

28

headlights on.

When he turned onto 22nd Street he could no longer

When the car pulled away as he shone his
7

1

spotlight on it, the officer followed and stopped the car.

2
3

After a backup officer arrived he detained the driver and

4

passenger, appellants Norman Lovan Cole and Sean Alex

5

Mermer.

6

appellant Patrick Dwight Birdsong, Jr., from under a parked

7

van in a residential backyard on 22nd Street, near where

8

Cole and Mermer had been parked.

9

appellant Taaj Zakee Martin hiding under a tarp in a

About 10 minutes later a police dog pulled

The police later found

10

residential garage nearby on 21st Street.

He was wearing a

11

white T-shirt, jeans, red shoes, but no sweatshirt.

12

police found two abandoned handguns nearby, one with a

13

silver barrel matching the description of the weapon used by

14

one of the shooters.

15

a dark hooded sweatshirt in the corner of the yard, and a

16

gray sweatshirt under a car parked on 21st Street.

17

testing linked the beanie cap and the black sweatshirt to

18

Birdsong, with Mermer as a minor contributor to the DNA on

19

the cap.

20

indicated [sic] their recent contact with or close proximity

21

to a gun that had been fired.

The

They also found a black beanie hat and

DNA

Gunshot residue was found on Martin and Birdsong,

22
23

A search of the car revealed a cellphone registered to

24

Martin, with DNA connecting Martin to it.

25

found in the car was registered to Mermer’s mother, at an

26

address in Lancaster.

27

Mermer phone, and on the car’s front and rear passenger

28

doors.

Another phone

Birdsong’s fingerprints were on the

8

1

De la Cruz, Rodriguez, and McCarty were unable to identify

2

any of the appellants.

3
4

(Respondent’s Lodgment 10, pp. 3-4;3 see People v. Martin, 2014 WL

5

3736212, at *1-2).

6
7

PETITIONER’S CONTENTIONS

8
9

Petitioner contends:

10
11

1.

The trial court’s refusal to sever Petitioner’s trial from

12

the trial of Martin for the McKillian murder allegedly violated

13

Petitioner’s rights to due process and a fair trial;

14
15
16

2.

The trial court allegedly erred by refusing to bifurcate the

gang enhancement allegations;

17
18

3.

The evidence allegedly was insufficient to support

19

Petitioner’s convictions for wilful, deliberate and premeditated

20

murder and attempted murder on a vicarious liability theory;

21
22

4.

The evidence allegedly was insufficient to support the gang

23

enhancement allegations;

24

///

25
26
27
28

3

The Court refers to Respondent’s Lodgments in a related
case, Birdsong v. Biter, CV 16-1015-VAP(E). Respondent did not
lodge the same documents in the present action. However,
Respondent did lodge copies of the Reporter’s Transcript and the
Clerk’s Transcript in the present action.
9

1

5.

The evidence allegedly was insufficient to support the jury’s

2

finding that a principal personally and intentionally discharged a

3

firearm proximately causing Juarez’ death;

4
5

6.

The trial court allegedly violated Petitioner’s rights to due

6

process and a fair trial by admitting assertedly unreliable cell tower

7

evidence;

8
9

7.

The trial court allegedly violated Petitioner’s

10

constitutional rights by admitting the prior testimony of Richard de

11

la Cruz;

12
13

8.

The trial court allegedly violated Petitioner’s rights to due

14

process and a fair trial by failing to investigate a juror’s alleged

15

use of a cell phone during trial; and

16
17
18

9.

The cumulative effect of the above-described alleged errors

assertedly violated due process.

19
20

STANDARD OF REVIEW

21
22

Under the “Antiterrorism and Effective Death Penalty Act of 1996"

23

(“AEDPA”), a federal court may not grant an application for writ of

24

habeas corpus on behalf of a person in state custody with respect to

25

any claim that was adjudicated on the merits in state court

26

proceedings unless the adjudication of the claim:

27

decision that was contrary to, or involved an unreasonable application

28

of, clearly established Federal law, as determined by the Supreme
10

(1) “resulted in a

1

Court of the United States”; or (2) “resulted in a decision that was

2

based on an unreasonable determination of the facts in light of the

3

evidence presented in the State court proceeding.”

4

2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

5

Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

6

(2000).

28 U.S.C. §

7
8
9

“Clearly established Federal law” refers to the governing legal
principle or principles set forth by the Supreme Court at the time the

10

state court renders its decision on the merits.

11

S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

12

A state court’s decision is “contrary to” clearly established Federal

13

law if:

14

Court law; or (2) it “confronts a set of facts . . . materially

15

indistinguishable” from a decision of the Supreme Court but reaches a

16

different result.

17

omitted); Williams v. Taylor, 529 U.S. at 405-06.

Greene v. Fisher, 132

(1) it applies a rule that contradicts governing Supreme

See Early v. Packer, 537 U.S. at 8 (citation

18
19

Under the “unreasonable application prong” of section 2254(d)(1),

20

a federal court may grant habeas relief “based on the application of a

21

governing legal principle to a set of facts different from those of

22

the case in which the principle was announced.”

23

538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

24

U.S. at 24-26 (state court decision “involves an unreasonable

25

application” of clearly established federal law if it identifies the

26

correct governing Supreme Court law but unreasonably applies the law

27

to the facts).

28

///
11

Lockyer v. Andrade,

1

“In order for a federal court to find a state court’s application

2

of [Supreme Court] precedent ‘unreasonable,’ the state court’s

3

decision must have been more than incorrect or erroneous.”

4

Smith, 539 U.S. 510, 520 (2003) (citation omitted).

5

court’s application must have been ‘objectively unreasonable.’”

6

at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

7

U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

8

Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

9

habeas court must determine what arguments or theories supported,

Wiggins v.

“The state
Id.

“Under § 2254(d), a

10

. . . or could have supported, the state court’s decision; and then it

11

must ask whether it is possible fairminded jurists could disagree that

12

those arguments or theories are inconsistent with the holding in a

13

prior decision of this Court.”

14

101 (2011).

15

2254(d)(1).”

16

Habeas relief may not issue unless “there is no possibility fairminded

17

jurists could disagree that the state court’s decision conflicts with

18

[the United States Supreme Court’s] precedents.”

19

for obtaining habeas corpus from a federal court, a state prisoner

20

must show that the state court’s ruling on the claim being presented

21

in federal court was so lacking in justification that there was an

22

error well understood and comprehended in existing law beyond any

23

possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86,

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).

Id.

“As a condition

Id. at 103.

24
25

In applying these standards to Petitioner’s exhausted claims, the

26

Court looks to the last reasoned state court decision, here the

27

decision of the California Court of Appeal.

28

Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
12

See Delgadillo v.

1

DISCUSSION

2
3

I.

Petitioner’s Challenge to the Trial Court’s Refusal to Sever the

4

McKillian Murder Count from the Counts Against Petitioner Does

5

Not Merit Federal Habeas Relief.

6
7

A.

Background

8
9

Following the trial court’s consolidation of the Virginia Avenue

10

Park shooting counts with the McKillian murder count, Petitioner’s

11

counsel filed a motion to sever the McKillian murder count (C.T. 857-

12

68).

13

Proceedings on December 1, 2010, May 3, 2011 and June 16, 2011, at

14

309-14; C.T. 894).

15

stating that: (1) the crimes were offenses of the same class;4 (2) the

16

evidence was cross-admissible because the defendants’ belief that the

17

Santa Monica 13 gang was responsible for the McKillian murder was

18

alleged to be the defendants’ motive for the Virginia Avenue Park

19

shootings; (3) nothing about the McKillian murder would tend to

20

inflame the jury against those defendants, including Petitioner, who

21

were not charged with involvement in that murder; and (4) the jury’s

22

acquittal of Martin for the McKillian murder and the jury’s acquittal

The court denied the motion (Augmented Reporter’s Transcript of

The California Court of Appeal upheld this ruling,

23
24
25
26
27
28

4

California Penal Code section 954 permits the joinder
of “two or more different offenses of the same class of crimes or
offenses. . . .” Murder and attempted murder are crimes of the
same class. See People v. Thomas, 52 Cal. 4th 336, 350, 128 Cal.
Rptr. 3d 489, 256 P.3d 603 (2011), cert. denied, 132 S. Ct. 1568
(2012); People v. Stanley, 39 Cal. 4th 913, 934, 47 Cal. Rptr. 3d
420, 140 P.3d 736 (2006), cert. denied, 549 U.S. 1269 (2007).
13

1

of Cole and Petitioner for the attempted murders indicated that the

2

jury “was fully willing to separately consider the evidence relating

3

to each of the defendants and each of the charges” (Respondent’s

4

Lodgment 10, at 18-19; see People v. Martin, 2014 WL 3736212, at *10).

5
6

B.

Discussion

7
8
9

As the Ninth Circuit has recognized, there exists no “clearly
established Federal law, as determined by the Supreme Court of United

10

States,” mandating the severance of joined charges.

11

Scribner, 541 Fed. App’x 776, 778 (9th Cir. 2013), cert. denied, 134

12

S. Ct. 1899 (2014) (“The Supreme Court has not held that a state or

13

federal trial court’s denial of a motion to sever can, in itself,

14

violate the Constitution.”) (citations omitted); accord Hollie v.

15

Hedgpeth, 456 Fed. App’x 685, 685 (9th Cir. 2011) (federal habeas

16

relief unavailable for state court’s joinder of different charges);

17

see also Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir.), cert.

18

denied, 562 U.S. 904 (2010) (joinder of defendants asserting mutually

19

antagonistic defenses did not violate any clearly established Supreme

20

Court law).

See Grajeda v.

21
22

Indeed, the United States Supreme Court has held that “improper

23

joinder does not, in itself, violate the Constitution.”

24

v. Lane, 474 U.S. 438, 446 n.8 (1986).

25

United States v. Lane that misjoinder could violate the Constitution

26

if misjoinder resulted in prejudice so great as to deny the defendant

27

the constitutional right to a fair trial.

28

474 U.S. at 446 n.8.

United States

The Supreme Court did state in

See United States v. Lane,

According to the Ninth Circuit, however, this
14

1

statement in United States v. Lane was mere dictum.

See Collins v.

2

Runnels, 603 F.3d at 1132 (United States v. Lane concerned the joinder

3

standards under the Federal Rules of Criminal Procedure, and “no

4

constitutional issue was before the court.”).

5

does not constitute “clearly established” law for purposes of the

6

AEDPA standard of review.

7

(2012); see also Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir.

8

2012), cert. denied, 133 S. Ct. 2766 (2013) (Supreme Court has not set

9

forth clearly established law supporting a misjoinder claim).

Supreme Court dictum

See Howes v. Fields, 132 S. Ct. 1181, 1187

10
11

Accordingly, because no clearly established Supreme Court law

12

forbade joinder of the McKillian murder count to the counts against

13

Petitioner, Petitioner is not entitled to federal habeas relief on his

14

claim of allegedly improper joinder.

15

70, 77 (2006) (“Given the lack of holdings from this Court [on the

16

issue presented], it cannot be said that the state court

17

“unreasonabl[y] applied clearly established Federal law.”) (internal

18

brackets and citation omitted); Moses v. Payne, 555 F.3d 742, 758–59

19

(9th Cir. 2009) (habeas relief unavailable where the Supreme Court had

20

articulated no “controlling legal standard” on the issue); 28 U.S.C. §

21

2254(d).

See Carey v. Musladin, 549 U.S.

22
23

In any event, Petitioner has failed to demonstrate that the trial

24

court’s denial of the motion to sever rendered Petitioner’s trial

25

fundamentally unfair.

26

misjoinder exists only “if the impermissible joinder had a substantial

27

and injurious effect or influence in determining the jury’s verdict.”

28

Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000), cert. denied,

Under Ninth Circuit law, undue prejudice from

15

1

534 U.S. 847 (2001) and 534 U.S. 943 (2001) (citation omitted).

2

prejudice sometimes can arise when “joinder of counts allows evidence

3

of other crimes to be introduced in a trial where the evidence would

4

otherwise be inadmissible,” or when a “strong evidentiary case” is

5

joined with a “weaker one.”

6

burden to prove unfairness rising to the level of a due process

7

concern.”

8

Cir.), cert. denied, 531 U.S. 918 (2000) (citation omitted).

Id. at 771-72.

Undue

Petitioner “bears the

Park v. State of California, 202 F.3d 1146, 1149 (9th

9
10

Here, as the Court of Appeal indicated, evidence of the McKillian

11

murder was relevant to the issue of Petitioner’s motive and intent.

12

See Comer v. Schriro, 480 F.3d 960, 985 (9th Cir.), cert. denied, 550

13

U.S. 966 (2007) (cross-admissibility of evidence significantly reduces

14

potential of prejudice from joinder).

15

weaker or stronger than the other.

16

jury to consider the evidence separately as it applied to each

17

defendant, to decide each charge for each defendant separately, and to

18

consider the evidence of gang activity only for the limited purposes

19

of: (1) deciding the issue of the defendants’ intent, purpose or

20

knowledge required to prove the gang-related crimes and enhancements

21

charged; (2) deciding whether the defendants had a motive to commit

22

the crimes; and (3) evaluating a witness’ credibility or believability

23

(R.T. 6712, 6742-43; C.T. 1285, 1303).

24

506 U.S. 534, 539-41 (1993) (risk of prejudice from joinder of

25

multiple defendants for trial is of the type that can be cured with

26

proper instructions); New v. Uribe, 532 Fed. App’x 743, 744 (9th

27

Cir.), cert. denied, 134 S. Ct. 701 (2013) (joinder not

28

unconstitutional where “evidence of both murders was relatively strong

Neither case was particularly

The trial court instructed the

16

See Zafiro v. United States,

1

and cross-admissible to prove identity or intent, and the trial court

2

instructed the jury to consider each murder charge separately”).

3

jury is presumed to have followed the court’s instructions.

4

v. Angelone, 528 U.S. 225, 226 (2000).

5

Appeal recognized, the jury’s acquittal of Martin on the McKillian

6

murder count and the jury’s acquittal of Petitioner on the McCarty and

7

Rodriguez attempted murder counts show that the jury was able to, and

8

did, consider the charges separately.

9

F.3d at 1150 (jury’s failure to convict on all counts “is the best

The

See Weeks

Furthermore, as the Court of

See Park v. California, 202

10

evidence of the jury’s ability to compartmentalize the evidence”)

11

(citations and internal quotations omitted).

12

demonstrate that the trial court’s denial of his severance motion

13

violated the Constitution.

14

relief on Ground One of the Petition.

Petitioner has failed to

Accordingly, Petitioner is not entitled to

15
16
17

II.

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

18
19

Prior to trial, Petitioner moved to bifurcate the gang

20

enhancement allegations (C.T. 917-23).

21

denied the motion (Augmented Reporter’s Transcript of Proceedings on

22

December 1, 2010, May 3, 2011 and June 16, 2011, at 656-75; C.T.

23

1026).

24

defendants, including Petitioner, had “identified no evidence that was

25

admissible in the trial only by virtue of the gang enhancement

26

allegations, but would have been inadmissible to establish the

27

appellants’ guilt of the substantive offenses,” and that “the evidence

28

of gang involvement and activity was central to the prosecution’s

Following a hearing, the court

The Court of Appeal upheld this ruling, reasoning that the

17

1

proof of the appellants’ motive for the Virginia Avenue Park shooting”

2

(Respondent’s Lodgment 10, p. 18; see People v. Martin, 2014 WL

3

3736212, at *9).

4
5

As indicated above, there exists no clearly established Supreme

6

Court law supporting a misjoinder claim.

7

686 F.3d at 776-77.

8

to federal habeas relief on his challenge to the trial court’s refusal

9

to bifurcate the gang enhancement allegations.

See Runningeagle v. Ryan,

For this reason alone, Petitioner is not entitled

See 28 U.S.C. §

10

2254(d); Carey v. Musladin, 549 U.S. at 77; Moses v. Payne, 555 F.3d

11

at 758–59.

12
13

In any event, Petitioner has not shown that the failure to

14

bifurcate rendered Petitioner’s trial fundamentally unfair.

15

California, a court has discretion to bifurcate the trial of a gang

16

enhancement allegation.

17

51, 16 Cal. Rptr. 3d 880, 94 P.3d 1040 (2004).

18

is unnecessary where the evidence supporting the gang enhancement

19

allegation is admissible with respect to the issue of guilt.

20

1049-50.

21

enhancement allegation is inadmissible at the trial on the charged

22

offense, a court may deny bifurcation where additional factors favor a

23

unitary trial.

In

People v. Hernandez, 33 Cal. 4th 1040, 1049However, bifurcation

Id. at

Moreover, even if some of the evidence offered to prove the

Id. at 1050.

24
25

Here, as the Court of Appeal held, the gang evidence was

26

admissible with respect to the Virginia Avenue Park offenses in order

27

to show intent and motive.

28

1087 (evidence concerning alliance between two gangs relevant to

See People v. Hernandez, 33 Cal. 4th at

18

1

issues of motive and intent); see also Monarrez v. Alameda, 268 Fed.

2

App’x 651, 652 (9th Cir.), cert. denied, 555 U.S. 859 (2008) (evidence

3

of gang membership relevant to show motive); Windham v. Merkle, 163

4

F.3d 1092, 1103-04 (9th Cir. 1998) (in prosecution for murder,

5

attempted murder and assault on an aiding and abetting theory,

6

testimony of gang expert regarding retributive behavior between rival

7

gangs relevant to demonstrate defendant’s motive for participating in

8

the alleged crimes); Rodarte v. Ducart, 2015 WL 9914180, at *8-9 (C.D.

9

Cal. Nov. 2, 2015), adopted, 2016 WL 304292 (C.D. Cal. Mar. 24, 2016)

10

(failure to bifurcate gang enhancement did not entitle the petitioner

11

to habeas relief where gang evidence was relevant to issue of

12

retaliatory motive for underlying crimes of murder and attempted

13

murder); Morrison v. Denny, 2014 WL 2013393, at *7-8 (C.D. Cal.

14

Apr. 8, 2014), adopted, 2014 WL 2011687 (C.D. Cal. July 7, 2014)

15

(failure to bifurcate gang enhancement did not entitle petitioner to

16

habeas relief where gang evidence was admissible to establish motive

17

for retaliatory gang shooting).

18
19

For the foregoing reasons, the Court of Appeal’s rejection of

20

this claim was not contrary to, or an objectively unreasonable

21

application of, any clearly established Federal Law as determined by

22

the Supreme Court of the United States.

23

Harrington v. Richter, 562 U.S. 86, 100-03 (2011).

24

entitled to federal habeas relief on this claim.

25

///

26

///

27

///

28

///
19

See 28 U.S.C. § 2254(d);
Petitioner is not

1
2

III. Petitioner’s Challenges to the Sufficiency of the Evidence Do Not
Merit Federal Habeas Relief.

3
4

A.

Governing Legal Principles

5
6

On habeas corpus, the Court’s inquiry into the sufficiency of

7

evidence is limited.

8

totally devoid of evidentiary support as to render [Petitioner’s]

9

conviction unconstitutional under the Due Process Clause of the

Evidence is sufficient unless the charge was “so

10

Fourteenth Amendment.”

11

1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations

12

omitted).

13

determines that no “rational trier of fact could have found the

14

essential elements of the crime beyond a reasonable doubt.”

15

v. Virginia, 443 U.S. 307, 317 (1979).

16

was “so unsupportable as to fall below the threshold of bare

17

rationality.”

Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir.

A conviction cannot be disturbed unless the Court

Jackson

A verdict must stand unless it

Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).

18
19

Jackson v. Virginia establishes a two-step analysis for a

20

challenge to the sufficiency of the evidence.

21

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

22

reviewing court must consider the evidence in the light most favorable

23

to the prosecution.”

24

Brown, 558 U.S. 120, 133 (2010).5

United States v.
“First, a

Id. (citation omitted); see also McDaniel v.
At this step, a court “may not

25
26
5

27
28

The Court must conduct an independent review of the
record when a habeas petitioner challenges the sufficiency of the
evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.
1997).
20

1

usurp the role of the trier of fact by considering how it would have

2

resolved the conflicts, made the inferences, or considered the

3

evidence at trial.”

United States v. Nevils, 598 F.3d at 1164

4

(citation omitted).

“Rather, when faced with a record of historical

5

facts that supports conflicting inferences a reviewing court must

6

presume - even if it does not affirmatively appear in the record -

7

that the trier of fact resolved any such conflicts in favor of the

8

prosecution, and must defer to that resolution.”

9

internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct.

Id. (citations and

10

at 2064 (“Jackson leaves [the trier of fact] broad discretion in

11

deciding what inferences to draw from the evidence presented at trial,

12

requiring only that [the trier of fact] draw reasonable inferences

13

from basic facts to ultimate facts”) (citation and internal quotations

14

omitted); Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (“it is the

15

responsibility of the jury — not the court — to decide what

16

conclusions should be drawn from evidence admitted at trial”).

17

State need not rebut all reasonable interpretations of the evidence or

18

“rule out every hypothesis except that of guilt beyond a reasonable

19

doubt at the first step of Jackson [v. Virginia].”

20

Nevils, 598 F.3d at 1164 (citation and internal quotations omitted).

21

Circumstantial evidence and the inferences drawn therefrom can be

22

sufficient to sustain a conviction.

23

1114-15 (9th Cir. 2011).

The

United States v.

Ngo v. Giurbino, 651 F.3d 1112,

24
25

At the second step, the court “must determine whether this

26

evidence, so viewed, is adequate to allow any rational trier of fact

27

to find the essential elements of the crime beyond a reasonable

28

doubt.”

United States v. Nevils, 598 F.3d at 1164 (citation and
21

1

internal quotations omitted; original emphasis).

A reviewing court

2

“may not ask itself whether it believes that the evidence at the trial

3

established guilt beyond a reasonable doubt.”

4

internal quotations omitted; original emphasis).

Id. (citations and

5
6

In applying these principles, a court looks to state law for the

7

substantive elements of the criminal offense, but the minimum amount

8

of evidence that the Constitution requires to prove the offense “is

9

purely a matter of federal law.”

10

Coleman v. Johnson, 132 S. Ct. at

2064.

11
12

B.

Murder and Attempted Murder Convictions

13
14

1.

Background

15
16

Petitioner contends the evidence did not suffice to support his

17

murder and attempted murder convictions, arguing that he “had nothing

18

to do with the killings and lacked the requisite pre-crime knowledge

19

and intent to be convicted on a aiding and abetting theory” (Pet.

20

Mem., p. 35).

21

his car near the shooting,” and there assertedly was no evidence

22

showing that Petitioner knew about the McKillian murder, that

23

Petitioner and the co-defendants “spoke about killing anyone,” or that

24

Petitioner waited in the car while Birdsong and Martin allegedly

25

killed Juarez (id., pp. 38-39).

26

three field showups allegedly generated no identifications, that

27

eyewitnesses assertedly excluded Petitioner (a white male) as the

28

shooter, and that no DNA, fingerprints or gunshot residue evidence

Petitioner contends he “just happened to be sitting in

Petitioner relies on evidence that

22

1

supposedly linked Petitioner to the murder (id., p. 39).

2
3

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

4
5

Martin and Birdsong were members of the Venice Shoreline

6

Crips gang.

7

shot and killed, rumors attributing the killing to members

8

of Santa Monica 13, a rival gang, circulated among

9

McKillian’s family and fellow Venice Shoreline Crips gang

After McKillian, a member of that gang, was

10

members.

A few hours later Juarez, De la Cruz, members or

11

associates of the Santa Monica 13 gang, were sitting in

12

Virginia Avenue Park when one or two African-American men

13

approached, shooting multiple rounds from a silver-barreled

14

gun and killing Juarez.

15
16

Two similarly dressed African-American men were then seen

17

running across Pico Boulevard and south on 22nd Street,

18

toward a car parked with its headlights on - which drove

19

away when a police car turned the corner.

20

African-American men - members of a historically rival gang

21

to the Santa Monica 13 gang - were found hiding in a nearby

22

backyard and garage, along with clothes matching the

23

description of those worn by the shooters.

24

linked the beanie cap and the black sweatshirt to Birdsong,

25

with Mermer as a minor contributor to the DNA on the cap.

26

Gunshot residue was found on Martin and Birdsong, indicated

27

their recent contact with or close proximity to a gun that

28

had been fired.

Two

DNA testing

Two handguns were also found discarded
23

1

nearby, one matching the silver-barrel gun described by one

2

of Juarez’s and De la Cruz’s companions.

3

phone registered to Martin, and a phone bearing Birdsong’s

4

thumbprint.

5

phones found in the car driven by Mermer, during the time

6

after McKillian was shot up to about 15 minutes before the

7

Virginia Avenue Park shootings, indicated that Martin and

8

Mermer had conversed by telephone shortly after the

9

McKillian shooting, that Mermer and Cole had then driven

In the car was a

Telephone records for calls between the two

10

from Lancaster to Venice, had picked up Martin in the Venice

11

area, and had driven Martin and Birdsong to the Virginia

12

Avenue Park shortly before the shooting at that location.

13
14

This evidence supports the jury’s determinations that Martin

15

and the others were aware of McKillian’s killing and the

16

rumors that the rival Santa Monica 13 gang was responsible,

17

indicating a perceived motive to retaliate.

18

determinations that after McKillian had been shot and before

19

the Virginia Avenue Park shooting, Martin had communicated

20

repeatedly with Mermer by telephone, and that Cole and

21

Mermer had travelled to Venice to join Martin in retaliating

22

against the Santa Monica 13 gang.

23

jury’s conclusion that Martin and Birdsong were active

24

participants in the Virginia Avenue Park murder of Juarez

25

and the attempted murder of De la Cruz, and that Cole and

26

Mermer were aiders and abettors in those offenses.

27

///

28

///
24

It supports the

It amply supports the

1

The identification of Martin and Birdsong as the Virginia

2

Avenue Park shooters is supported by the fact that after the

3

shooting two men were seen running across Pico Boulevard to

4

22nd Street, that Birdsong and Martin were found hiding

5

nearby bearing gunshot residue, and that clothes and a gun

6

matching those used by the shooters were found abandoned

7

near where they were found hiding.

8

participation as aiders and abettors is supported by the

9

evidence that after the shooting they were waiting nearby in

Cole’s and Mermer’s

10

Mermer’s car, across from the park on 22nd Street in the

11

direction that the shooters had run, that they drove away

12

when the police officer approached from around the corner,

13

and that Martin’s phone was in Mermer’s car, along with

14

Mermer’s phone bearing Birdsong’s thumbprint.

15

which we must presume were believed by the jury, are amply

16

sufficient to establish the elements of the murder and

17

attempted murder for which the appellants were convicted,

18

and the participation of all four appellants in the

19

offenses.

These facts,

20
21

(Respondent’s Lodgment 10, pp. 7-9; see People v. Martin, 2014 WL

22

3736212, at *4-5) (citation omitted).

23
24

2.

Discussion

25
26

Under California law, “a person who aids and abets the commission

27

of a crime is a ‘principal’ in the crime, and thus shares the guilt of

28

the actual perpetrator.”

People v. Prettyman, 14 Cal. 4th 248, 259,
25

1

58 Cal. Rptr. 2d 827, 926 P.2d 1013 (1996).

2

a person who, ‘acting with (1) knowledge of the unlawful purpose of

3

the perpetrator; and (2) the intent or purpose of committing,

4

encouraging, or facilitating the commission of the offense, (3) by act

5

or advice aids, promotes, encourages or instigates, the commission of

6

the crime.’”

7

knowledge and intent include “presence at the scene of the crime,

8

[and] companionship and conduct before and after the offense,

9

including flight.”

Id. at 259.

An aider and abettor “is

Factors that are probative on the issue of

People v. Mitchell, 183 Cal. App. 3d 325, 330, 228

10

Cal. Rptr. 286 (1986); see also People v. Chagolla, 144 Cal. App. 3d

11

422, 429, 193 Cal. Rptr. 711 (1983).

12
13

Here, the evidence amply supported the jury’s conclusion that

14

Petitioner aided and abetted the murder of Juarez and the attempted

15

murder of De la Cruz, including evidence that:

16
17

Chloe McCarty told police she saw one shooter in a gray

18

hooded sweatshirt fire a silver handgun at the group at the

19

park (R.T. 3959).

20

saw the two black males who had shot at her and her

21

companions run down Pico toward 22nd Street (R.T. 4279-81).6

22

The two men reached 22nd Street (R.T. 4292).

23

wearing a black hoodie and one was wearing a gray hoodie

24

(R.T. 4269-70, 4281, 4298).

25

preliminary hearing that the man wearing the gray hoodie was

After the shooting, Ashleigh Rodriguez

One man was

Ashleigh testified at the

26
27
28

6

De la Cruz also told police that, after the shooting,
he saw the two shooters running on Pico toward 22nd Street (R.T.
5784).
26

1

wearing a black beanie, although at trial she said she did

2

not recall the beanie (R.T. 4283).

3
4

Officer Federico was stopped on Pico near 21st Street

5

when he heard gunshots coming from Virginia Avenue Park

6

(R.T. 3684-87).

7

sound of the shots (R.T. 3688).

8

across Pico and down 22nd Street (R.T. 3689-90).

Federico drove eastbound on Pico toward the
He saw two suspects running

9
10

As Federico followed the two people down 22nd Street,

11

he observed a black Honda Fit parked on the side of the road

12

(R.T. 3690).

13

3691).

14

quickly pulled away and began traveling down 22nd Street

15

(R.T. 3691-92).

16

major intersection and waited for backup (R.T. 3692-93).

17

Upon the arrival of other officers, Federico contacted the

18

driver, who was Petitioner (R.T. 3693).

19

of the car was Cole (R.T. 3693-94).

20

camera recorded muzzle flashes at the park, the suspects

21

running across Pico and the stop of the Honda (R.T. 3695-99,

22

3903).

Federico lost sight of the two suspects (R.T.

When Federico illuminated the Honda, the Honda

Federico stopped the Honda at the next

The other occupant

Federico’s dashboard

23
24

A police dog located Birdsong hiding under a van in the

25

backyard of a residence, part of a duplex, at 2116 22nd

26

Street near Pico, approximately 500 feet from the corner of

27

Virginia Avenue Park (R.T. 4034, 4045, 4038-43).

28

found a black or dark-colored sweatshirt in the backyard of
27

Police

1

the residence where Birdsong was hiding (R.T. 4045-46).

2

Police found fresh damage and a shoe print on a fence in the

3

rear yard of a residence on 21st Street, across the alley

4

from the residence where Birdsong was found (R.T. 4065-67).

5

Police found a small caliber black revolver on the ground

6

behind a patio chair in the side yard of the duplex at 2116-

7

2118 22nd Street (R.T. 4231-33, 4237, 4252-53).

8

located Martin hiding under a tarp in the garage at a house

9

under construction located midway down the block on 21st

10

Police

Street (R.T. 4070-78).

11
12

A search of the Honda revealed a silver flip cell phone

13

in the cup holder in the center console and a black “Boost”

14

cell phone on the rear seat (R.T. 4323-25).

15

subscriber associated with the black cell phone (R.T. 4843,

16

5437, 5440).

17

clothing including a belt buckle with a “V” on it (R.T.

18

4326-28).

19

shape (R.T. 6026).

Martin was the

A duffle bag in the car’s trunk contained

The Venice Shoreline Crips’ hand sign was a “V”

20
21

Police found a knit beanie and a pair of gloves in the

22

driveway of the residence at 2120 22nd Street, a home

23

located next to the duplex (R.T. 4213-16).

24

between the homes at that location, police found a large .44

25

magnum silver revolver (R.T. 4217-18, 4248, 4252).

In an area

26
27

Birdsong’s fingerprints were found on the passenger

28

side rear door and front passenger side quarter panel of the
28

1

Honda and on the flip phone found inside the car (R.T. 4901,

2

4911-12, 4898-4902).

3

that of the major contributor of DNA on the black beanie, a

4

match rarer than one in a trillion (R.T. 5139, 5142-43).

5

Petitioner’s DNA was consistent with that of a minor

6

contributor of DNA on the beanie, although this consistency

7

was statistically possible in one in thirty (R.T. 5140-41).

8

Birdsong was not excluded as a possible major contributor of

9

DNA on the black sweatshirt, a match rarer than one in a

Birdsong’s DNA was consistent with

10

million (R.T. 5144-45).

Martin was not excluded as a

11

possible source of DNA on the black cell phone, a match

12

rarer than one in a trillion (R.T. 5146-47).

13
14

Cell phone records showed that, between the time of the

15

McKillian murder and the Virginia Avenue Park shootings,

16

several calls were made between Martin’s phone and the phone

17

registered to Petitioner’s mother (R.T. 4873-79).

18

tower data traced the route of the phone of Petitioner’s

19

mother from Lancaster to Venice on the day of the Virginia

20

Avenue Park shootings (R.T. 5485-5506).

Cell

21
22

A bedroom in the home of Petitioner’s mother in

23

Lancaster appeared to be occupied by a male.

There, police

24

recovered a photo album, photographs, a copy of a state

25

court gang injunction against the Venice Shoreline Crips and

26

a white t-shirt bearing the writing “Ghost Town”(R.T. 4330-

27

44).

28

Angeles (R.T. 4341).

“Ghost Town” is a reference to the Venice area of Los

29

1

Photographs showed Petitioner throwing the “V” hand

2

sign with Venice Shoreline Crips gang members (R.T. 6038-39,

3

6056-57).

4

Petitioner’s mother contained writing concerning the Venice

5

Shoreline Crips and photographs of Venice Shoreline Crips

6

gang members (R.T. 6039-44).

7

opined that Petitioner, Martin, Birdsong and Cole were

8

members of the Venice Shoreline Crips (R.T. 6058-60).

The photo album recovered from the house of

The prosecution’s gang expert

9
10

From the above-described evidence, a rational juror could have

11

concluded, beyond a reasonable doubt, that Petitioner aided and

12

abetted the shootings at Virginia Avenue Park.

13

202 Cal. App. 3d 273, 281 n.6, 248 Cal. Rptr. 678 (1988) (“It has been

14

consistently held that one who was present . . . to take charge of an

15

automobile and to keep the engine running and to give direct aid to

16

others in making their escape, is a principal in the crime committed”)

17

(citations omitted); People v. Hammond, 181 Cal. App. 3d 463, 468

18

(1986) (defendant’s “act of driving the getaway car was ample evidence

19

of his intent to assist or facilitate [the perpetrator]”); see also

20

Vasquez v. Keran, 2009 WL 256550, at *6 (C.D. Cal. Jan. 29, 2009)

21

(evidence that the petitioner was driver of vehicle whose occupants

22

shot at three men, killing one, sufficient to show the petitioner

23

aided and abetted murder and attempted murder).

24

most favorable to the prosecution, the evidence showed that Petitioner

25

was the getaway driver in the defendants’ plan to shoot a rival gang

26

member or members in retaliation for the McKillian murder.

27

evidence belies Petitioner’s assertion that he “just happened to be

28

sitting in his car near the shooting.”
30

See People v. Bishop,

Viewed in the light

The

Physical, fingerprint and DNA

1

evidence connected Petitioner and Cole, occupants of the Honda, with

2

Martin and Birdsong, the shooters.

3

contrary evidence and inferences, this Court must presume that the

4

jury resolved evidentiary conflicts in favor of the prosecution, and

5

cannot revisit the jury’s credibility determinations.

6

Smith, 132 S. Ct. 2, 6-7 (2011) (jury entitled to credit prosecution

7

experts’ testimony despite conflicting testimony by defense experts);

8

McDaniel v. Brown, 538 U.S. 120, 131-34 (2010) (ruling that the lower

9

federal court erroneously relied on inconsistencies in trial testimony

Although Petitioner points to

See Cavazos v.

10

to deem evidence legally insufficient; the reviewing federal court

11

must presume that the trier of fact resolved all inconsistencies in

12

favor of the prosecution, and must defer to that resolution); United

13

States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied,

14

540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a

15

court does not “question a jury’s assessment of witnesses’

16

credibility” but rather presumes that the jury resolved conflicting

17

inferences in favor of the prosecution).

18
19

Accordingly, the Court of Appeal’s rejection of Petitioner’s

20

challenge to the sufficiency of the evidence to support his

21

convictions for murder and attempted murder was not contrary to, or an

22

objectively unreasonable application of, any clearly established

23

Federal Law as determined by the Supreme Court of the United States.

24

See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03

25

(2011).

26

claim.

27

///

28

///

Petitioner is not entitled to federal habeas relief on this

31

1

C.

Gang Enhancement

2
3

1.

Primary Activities

4
5

California Penal Code section 186.22(b) authorizes the imposition

6

of a sentence enhancement against “any person who is convicted of a

7

felony committed for the benefit of, at the direction of, or in

8

association with any criminal street gang, with the specific intent to

9

promote, further, or assist in any criminal conduct by gang members.

10

. . .”

11

“any ongoing organization, association, or group of three or more

12

persons, whether formal or informal, having as one of its primary

13

activities the commission of one or more [enumerated] criminal acts .

14

. . , having a common name or common identifying sign or symbol, and

15

whose members individually or collectively engage in or have engaged

16

in a pattern of criminal gang activity.”

17

include assault with a deadly weapon and unlawful homicide.

18

Penal Code §§ 186.22(e)(1), (3).

Section 186.22(e) defines a “criminal street gang” to mean

The enumerated criminal acts
Cal.

19
20

The prosecution’s gang expert testified that the expert: (1) was

21

familiar with the Venice Shoreline Crips for the past three years;

22

(2) had personal contact with approximately 60 members of that gang;

23

(3) was familiar with the area claimed by that gang and went to the

24

Oakwood area every day he was at work; and (4) regularly spoke to

25

detectives and to gang members concerning the activities of the gang,

26

including criminal activities (R.T. 6020-26).

27

testified that the primary activities of the Venice Shoreline Crips

28

“range[d] from vandalisms to narcotic sales, to street robberies, to
32

The gang expert

1

assault with deadly weapons, and range up to even murder” (R.T. 6045).

2
3

Petitioner contends the evidence did not suffice to satisfy the

4

“primary activities” element of section 186.22(b) because the

5

prosecution’s gang expert allegedly failed to testify that the Venice

6

Shoreline Crips “consistently and repeatedly engaged in the requisite

7

criminal conduct” (Pet. Mem., p. 48).

8

the testimony of the prosecution’s gang expert supplied substantial

9

evidence to satisfy the “primary activities” element (Respondent’s

10

Lodgment 10, p. 15; see People v. Martin, 2014 WL 3736212, at *8).

The Court of Appeal ruled that

11
12

The Court of Appeal’s ruling was not unreasonable.

The

13

prosecution’s expert testimony sufficed to show that the gang’s

14

primary activities included at least one of the enumerated offenses.

15

See Cal. Penal Code §§ 186.22(e)(1), (3); People v. Lam Than Nguyen,

16

61 Cal. 4th 1015, 1058, 191 Cal. Rptr. 3d 182, 354 P.3d 90 (2015),

17

cert. denied, 136 S. Ct. 1714 (2016) (“Sufficient proof of the gang’s

18

primary activities might consist of evidence that the group’s members

19

consistently and repeatedly have committed criminal activity listed in

20

the gang statute.

21

(quoting People v. Sengpadychith, 26 Cal. 4th 316, 324, 109 Cal. Rptr.

22

2d 851, 27 P.3d 739 (2001) (emphasis added; holding expert testimony

23

sufficient); People v. Duran, 97 Cal. App. 4th 1448, 1465, 119 Cal.

24

Rptr. 2d 272 (2002) (“The testimony of a gang expert, founded on his

25

or her conversations with gang members, personal investigation of

26

crimes committed by gang members, and information obtained from

27

colleagues in his or her own and other law enforcement agencies, may

28

be sufficient to prove a gang’s primary activities.”).

Also sufficient might be expert testimony. . . .”)

33

1

2.

Specific Intent

2
3

As indicated above, California Penal Code section 186.22(b)(1)

4

requires proof that the defendant harbored the “specific intent to

5

promote, further, or assist in any criminal conduct by gang members.”

6

In response to a hypothetical question based on the prosecution’s

7

evidence, the gang expert testified that a crime such as the Virginia

8

Avenue Park shooting would benefit the gang and the gang members who

9

participated in the shooting.

This benefit assertedly would consist

10

of the enhancement of the gang’s reputation for violence, the

11

engendering of respect by manifesting a willingness to kill in

12

retaliation for perceived disrespect, and the enhancement of the

13

shooters’ status within the gang (R.T. 6076-79).

14

the expert’s testimony was speculative, arguing that the evidence did

15

not suffice to prove Petitioner’s specific intent because the

16

prosecution assertedly presented no evidence that the perpetrators

17

wore gang clothing, shouted gang slogans or flashed gang signs (Pet.

18

Mem., pp. 45-47).

Petitioner contends

19
20

Section 196.22(b) “applies to any criminal conduct, without a

21

further requirement that the conduct be ‘apart from’ the criminal

22

conduct underlying the offense of conviction sought to be enhanced.”

23

People v. Albillar, 51 Cal. 4th 47, 66, 119 Cal. Rptr. 3d 415, 244

24

P.3d 1062 (2010) (original emphasis).

25

the defendant act with the specific intent to promote, further or

26

assist a gang; the statute requires only the specific intent to

27

promote, further, or assist criminal conduct by gang members.”

28

67 (original emphasis; citations omitted).
34

“There is no requirement that

Id. at

Here, the gang expert’s

1

testimony sufficed to show that Petitioner harbored the specific

2

intent to “promote, further, or assist in any criminal conduct by gang

3

members.”

4

(deeming sufficient gang expert’s testimony that the petitioner shot

5

the victim because the victim had “disrespected” the petitioner’s gang

6

and that it was important for the petitioner to maintain the respect

7

accorded to him as a gang member); People v. Vang, 52 Cal. 4th 1038,

8

1048, 132 Cal. Rptr. 3d 373, 262 P.3d 581 (2011) (“Expert opinion that

9

particular criminal conduct benefited a gang is not only permissible

See Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011)

10

but can be sufficient to support the Penal Code section 186.22,

11

subdivision (b)(1), gang enhancement.”) (citation and internal

12

quotations omitted); People v. Albillar, 51 Cal. 4th at 68 (“if

13

substantial evidence establishes that the defendant intended to and

14

did commit the charged felony with known members of a gang, the jury

15

may fairly infer that the defendant had the specific intent to

16

promote, further, or assist criminal conduct by those gang members”);

17

People v. Romero, 140 Cal. App. 4th 15, 18-19, 43 Cal. Rptr. 3d 862

18

(2006) (evidence sufficient to show crime was gang-related, where

19

evidence showed defendant was a gang member, shootings occurred in

20

territory and at hangout of rival gang, and gang expert testified that

21

shootings were committed for benefit of defendant’s gang, although

22

evidence did not show victims were gang members or that anyone

23

involved wore gang colors or used gang signs).

24
25

3.

Conclusion

26
27
28

For the foregoing reasons, the Court of Appeal’s rejection of
Petitioner’s challenges to the sufficiency of the evidence to support
35

1

the gang enhancement was not contrary to, or an objectively

2

unreasonable application of, any clearly established Federal Law as

3

determined by the Supreme Court of the United States.

4

2254(d); Harrington v. Richter, 562 U.S. at 100-03.

5

entitled to federal habeas relief on these claims.

See 28 U.S.C. §
Petitioner is not

6
7

D.

Firearm Enhancement

8
9

California Penal Code section 12022.53(d) mandates an additional

10

and consecutive term of imprisonment in the state prison for 25 years

11

to life for any person who, in the commission of enumerated felonies

12

including murder and attempted murder, “personally and intentionally

13

discharges a firearm and proximately causes great bodily injury or

14

death.”

15

also applies to any principal in the commission of the section

16

12022.53(d) offense who “violated subdivision (b) of Section 186.22.”

17

See Garcia v. Yarborough, 2006 WL 6185670, at *10 (C.D. Cal. Apr.18,

18

2006), aff’d, 310 Fed. App’x 988 (9th Cir.), cert. denied, 558 U.S.

19

837 (2009) (“Subdivision (e) of section 12022.53 authorizes the

20

imposition of the enhanced sentence under 12022.53(d) to aiders and

21

abettors if a criminal street gang allegation is also pled and

22

proven.”) (citation omitted).

Section 12022.53(e)(1)(A) provides that section 12022.53(d)

23
24

As indicated above, the jury found “not true” the allegations

25

that Martin and Birdsong personally and intentionally discharged a

26

firearm which caused Juarez’ death and personally and intentionally

27

discharged a firearm in the commission of the attempted murder of De

28

la Cruz.

However, the jury found true the allegations that a
36

1

principal personally and intentionally discharged a firearm which

2

caused Juarez’ death and personally and intentionally discharged a

3

firearm in the commission of the attempted murder of De la Cruz.

4

Petitioner contends the jury’s “not true” findings regarding the

5

discharge of a firearm by Martin and Birdsong “prove[] that no

6

principal personally and intentionally discharged a firearm

7

proximately causing Juarez’ death under [section] 12022.53(d)” (Pet.

8

Mem., p. 77).

9

whether any of the four defendants discharged a firearm,” and hence

Petitioner argues that “the jury never determined

10

the evidence assertedly did not support the firearm enhancement (Pet.

11

Mem., pp. 77-78).

12
13

The Court of Appeal rejected Petitioner’s claim, reasoning that

14

the verdicts showed the jury found beyond a reasonable doubt that

15

“some principal in the offense -- either Martin, Birdsong or both --

16

discharged a handgun, but that it had some reasonable doubt as to

17

which one of them did the actual shooting” (Respondent’s Lodgment 10,

18

p. 10; see People v. Martin, 2014 WL 3736212, at *5) (original

19

emphasis).

The Court of Appeal explained:

20
21

. . .

22

actual shooter does not constitute an affirmative

23

determination that neither of them fired that shot.

24

not negate the jury’s affirmative determination that a

25

principal in the offense personally and intentionally

26

discharged the handgun that killed Juarez, notwithstanding

27

that the evidence was not sufficient to identify which of

28

the appellants was the shooter.

The fact that the jury was unable to identify the

37

It does

1

(Respondent’s Lodgment 10, pp. 10-11; see People v. Martin, 2014 WL

2

3736212, at *5).

3

aider and abettor must be convicted of the underlying offense to be

4

subject to the sentence enhancements contained in California Penal

5

Code section 12022.53, “there is no requirement that the principal who

6

intentionally and personally discharged the firearm must be convicted

7

of the offense, or even that he or she must be identified”

8

(Respondent’s Lodgment 10, p. 11; see People v. Martin, 2014 WL

9

3736212, at *5) (citing People v. Garcia, 28 Cal. 4th 1166, 1173-74,

10

The Court of Appeal also held that, although an

124 Cal. Rptr. 2d 464, 52 P.3d 648 (2002)).7

11
12

Moreover, to the extent that the verdicts were arguably

13

inconsistent, “inconsistent verdicts may not be used to demonstrate

14

the insufficiency of the evidence for the count on which the defendant

15

was convicted.”

16

(9th Cir.), cert. denied, 132 S. Ct. 355 (2011) (citation and footnote

17

omitted); see also United States v. Powell, 469 U.S. 57, 67 (1984)

18

(review of challenge to the sufficiency of the evidence “should be

19

independent of the jury’s determination that evidence on another count

20

was insufficient”).

21

verdicts may stand, even when a conviction is rationally incompatible

22

with an acquittal, provided there is sufficient evidence to support a

23

guilty verdict.”

United States v. Ares-Garcia, 420 Fed. App’x 707, 708

“[I]t is well established that inconsistent

United States v. Suarez, 682 F.3d 1214, 1218 (9th

24
7

25
26
27
28

Thus, under the Court of Appeal’s interpretation of
California law, Petitioner’s argument that “the prosecution
presented no evidence to identify the person who personally and
intentionally fired the firearm that killed Juarez” (Traverse, p.
20, filed June 8, 2016) misses the point. Under California law,
specific identification is not required to support the
enhancement.
38

1

Cir. 2012) (citation, internal quotations and brackets omitted);

2

accord People v. Lewis, 25 Cal. 4th 610, 655, 106 Cal. Rptr. 2d 629,

3

22 P.3d 392, cert. denied, 534 U.S. 1045 (2001).

4

the evidence in the present case was sufficient to support the guilty

5

verdicts.

6

Rptr. 315 (1982) (evidence sufficient to support murder conviction

7

despite negative finding on firearm allegation, which “was a

8

determination more favorable to the defendant than the evidence

9

warranted”).

As discussed above,

See People v. Federico, 127 Cal. App. 3d 20, 33, 179 Cal.

No clearly established Supreme Court law supports

10

Petitioner’s claim.

11

32 (C.D. Cal. May 18, 2011), adopted, 2011 WL 3235946 (July 27, 2011)

12

(rejecting inconsistent verdict claim where jury found untrue

13

allegations that the petitioner was armed with a firearm, but found

14

true the allegation that the petitioner personally used a firearm).

See Xatruch v. Uribe, 2011 WL 3235740, at *1, 31-

15
16

The verdicts showed the jury found that Martin and Birdsong

17

personally used, and personally and intentionally discharged, a

18

firearm in the commission of the murder and that a principal

19

personally and intentionally discharged a firearm causing death to

20

Juarez.

21

Birdsong personally and intentionally discharged a firearm causing

22

Juarez’ death suggests only that the jurors may not have been able to

23

decide whether it was Martin or Birdsong who fired the shot which

24

killed Juarez.

25

law the jury could have found Petitioner guilty of the murder as an

26

aider and abettor, and could have found true the firearm enhancement

27

allegations as to Petitioner, even if the jury acquitted Martin and

28

Birdsong of the firearm enhancements, as long as the jury found true

The “not true” finding on the allegation that Martin and

As the Court of Appeal recognized, under California

39

1

the allegation that a principal had personally and intentionally

2

discharged a firearm causing Juarez’ death.

3

Cal. 4th at 1173-75.

See People v. Garcia, 28

4
5

As the Court of Appeal ruled, Petitioner’s reliance on People v.

6

Camino, 188 Cal. App. 4th 1359, 116 Cal. Rptr. 3d 173 (2010), is

7

unavailing (see Respondent’s Lodgment 10, p.11; People v. Martin, 2014

8

WL 3736212, at *6).

9

member, Palacios, were involved in a gunfight with a rival gang,

In People v. Camino, Camino and a fellow gang

10

resulting in Palacios’ death by a bullet of unknown origin.

11

Camino, 188 Cal. App. 4th at 1363.

12

Camino’s group.

13

on a provocative act theory, and found true the allegation that Camino

14

vicariously had discharged a firearm within the meaning of California

15

Penal Code sections 12022.53(c) and (c)(1).

16

shooter in Camino’s gang was the victim, and Palacios could not be a

17

principal in his own murder, the Court of Appeal held that the

18

evidence failed to support a section 12022.53(e)(1) enhancement.

19

People v. Camino, 188 Cal. App. 4th at 1380-81.

20

Petitioner’s case, either Martin or Birdsong (or both) qualified as a

21

“principal” or “principals” in the shooting; the victims were not the

22

defendants’ accomplices.

Id.

People v.

Palacios was the only shooter in

A jury found Camino guilty of Palacios’ murder

However, because the only

By contrast, in

23
24

For the foregoing reasons, the Court of Appeal’s rejection of

25

this claim was not contrary to, or an objectively unreasonable

26

application of, any clearly established Federal Law as determined by

27

the Supreme Court of the United States.

28

Harrington v. Richter, 562 U.S. at 100-03.
40

See 28 U.S.C. § 2254(d);
Petitioner is not entitled

1

to federal habeas relief on this claim.

2
3

IV.

The Admission of the Testimony of a Custodian of Records

4

Concerning Cell Tower Information Does Not Entitle Petitioner to

5

Federal Habeas Relief.

6
7

A.

Background

8
9

The following summary is taken from the California Court of

10

Appeal’s opinion.

11

Cir. 2009).

See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th

12
13

Ricardo Leal, a “subpoena analyst” for Sprint Nextel

14

telephone company, testified concerning the contents of

15

telephone records produced by Sprint under subpoena,

16

relating to calls between the cellular telephones registered

17

to Martin and to Mermer’s mother.

18

adequacy of Leal’s qualifications and the foundation for his

19

testimony, Leal was permitted to testify to the nature of

20

the information that can and cannot be determined from the

21

subpoenaed records.

22

information provided by the telephone records, as explained

23

by Leal, constitute[d] strong circumstantial evidence

24

supporting the charges against all the defendants.

25

show[ed], the prosecution contend[ed], that Martin (in

26

Venice) and Mermer (in Lancaster) had conversed by telephone

27

shortly after the McKillian shooting, that Mermer and Cole

28

had then driven from Lancaster to Venice, had picked up

Over objections to the

The prosecution argued that the

41

It

1

Martin in the Venice area, and had taken Martin and Birdsong

2

to the Virginia Avenue Park shortly before the shooting at

3

that location.

4
5

Leal testified that he had been a Sprint subpoena compliance

6

analyst for eight years, that he had received on-the-job

7

training concerning how to interpret Sprint’s telephone

8

records for law enforcement, that he had been trained about

9

how Sprint’s records are generated and maintained, and that

10

he had testified in court on these subjects about 15 times.

11

He was then asked to explain the information collected by

12

Sprint and provided in response to a subpoena.

13
14

Leal testified, for example, that the records show[ed] the

15

number making the call; the date, time, and duration of the

16

call; whether the call was inbound or outbound from the

17

subscribing phone; whether the call was answered or sent to

18

voicemail; and the locations of the towers from which the

19

call was originated and terminated.

20

originating and terminating towers are usually, but not

21

necessarily, those that are then closest to the originating

22

and receiving phones, and some of the factors (such as

23

distance, terrain, and density of cellphone usage) that

24

affect[] whether the call is routed to the closest tower.

25

And he explained how a call is sometimes handed off from one

26

tower to another, usually due to changes in the telephone’s

27

location during the call.

28

location of the towers can be identified and determined from

He explained that the

He explained also how the

42

1

maps provided by Sprint.

2
3

The defendants objected to the foundation for Leal’s

4

testimony, based on his admitted lack of technical expertise

5

as an engineer and his inability to explain how calls are

6

routed beyond what he had been taught by Sprint.

7

argued that Leal was qualified to do no more than identify

8

the records he had brought, and “as far as what this line

9

[in the records] says, the records speak for themselves.”

They

10

“He cannot testify to what towers they came off of.

11

for an expert to interpret, not him.”

12

That is

overruled the objections.

The trial court

13
14

Leal then testified to the information on the records he had

15

produced, concerning the cellphone registered to Martin, and

16

the phone registered to Mermer’s mother in Lancaster, which

17

had been found in Mermer’s car after the shooting.

18

Following Leal’s direct testimony, the defendants examined

19

him at length — and without limitation — about the meaning

20

of his testimony and the information in the records he had

21

provided, as well as the limits of his training and

22

expertise.

23
24

(Respondent’s Lodgment 10, pp. 20-22; see People v. Martin, 2014 WL

25

3736212, at *11-12 (footnote omitted).

26
27
28

Petitioner contends Leal’s allegedly “unreliable and speculative”
testimony exceeded Leal’s expertise, purportedly in violation of due
43

1

process (Pet. Mem., pp. 55-60).

The Court of Appeal rejected this

2

claim, stating that the evidence showed “it was well within [Leal’s]

3

training and expertise to explain what the telephone company records

4

do and do not show concerning the locations of the cellular towers to

5

which calls had been routed, and the times and durations of those

6

calls” (Respondent’s Lodgment 10, p. 23; see People v. Martin, 2014 WL

7

3736212, at *12).

8
9

B.

Discussion

10
11

“‘The admission of evidence does not provide a basis for habeas

12

relief unless it rendered the trial fundamentally unfair in violation

13

of due process.’”

14

2009) (citation omitted); see also Jammal v. Van de Kamp, 926 F.2d

15

918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is

16

“whether the admission of the evidence so fatally infected the

17

proceedings as to render them fundamentally unfair”).

18

Court has made very few rulings regarding the admission of evidence as

19

a violation of due process.”

20

“Although the Court has been clear that a writ should issue when

21

constitutional errors have rendered the trial fundamentally unfair

22

[citation], it has not yet made a clear ruling that admission of

23

irrelevant or overly prejudicial evidence constitutes a due process

24

violation sufficient to warrant issuance of the writ.”

25

Therefore, Petitioner’s challenges to the admission of Leal’s

26

testimony necessarily fail under the AEDPA standard of review.

27

U.S.C. § 2254(d).

28

///

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.

“The Supreme

Holley v. Yarborough, 568 F.3d at 1101.

44

Id.

See 28

1

In any event, the Court of Appeal was not unreasonable in

2

rejecting Petitioner’s challenge to Leal’s testimony.

Leal testified

3

that he had worked as a subpoena analyst at Sprint/Nextel for eight

4

years (R.T. 4829).

5

small classes concerning the infrastructure and working of cell towers

6

and daily training in interpreting records for law enforcement and in

7

testifying regarding records and their accuracy (R.T. 4829, 4832).

8

Leal previously had testified approximately fifteen times (R.T. 4829-

9

30).

Leal had received on-the-job training, including

Under these circumstances, the admission of Leal’s testimony did

10

not render Petitioner’s trial fundamentally unfair.

11

v. Graham, 796 F.3d 332, 364-65 (4th Cir. 2015), adopted in relevant

12

part,

13

(en banc) (affirming admission of testimony of Sprint/Nextel custodian

14

of records concerning connections to and operations of cell sites and

15

conditions affecting a cellphone’s connection to a particular tower).

16

To the extent Petitioner contends the challenged testimony was

17

“unreliable,” “the potential unreliability of a type of evidence does

18

not alone render its introduction at the defendant’s trial

19

fundamentally unfair.”

20

(2012) (citation omitted).

F.3d

See United States

, 2016 WL 3068018, at *1 n.1 (4th Cir. May 31, 2016)

Perry v. New Hampshire, 132 S. Ct. 716, 728

21
22

For the foregoing reasons, the Court of Appeal’s rejection of

23

this claim was not contrary to, or an objectively unreasonable

24

application of, any clearly established Federal Law as determined by

25

the Supreme Court of the United States.

26

Harrington v. Richter, 562 U.S. at 100-03.

27

to federal habeas relief on this claim.

28

///
45

See 28 U.S.C. § 2254(d);
Petitioner is not entitled

1

V.

2

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

3
4

A.

Introduction

5
6

California’s hearsay rule permits the admission of former

7

testimony if: (1) the witness is unavailable; and (2) the party

8

against whom the former testimony is offered was a party to the prior

9

proceeding and had the right and opportunity to cross-examine the

10

witness with an interest and motive similar to that which that party

11

has at the present hearing.

12

California Evidence Code section 240 defines the term “unavailable as

13

a witness” to include a situation in which the proponent of the absent

14

witness’ statement “has exercised due diligence but has been unable to

15

procure his or her attendance by the court’s process.”

16

Code § 240(a)(5).

See Cal. Evid. Code § 1291(a)(2).

Cal. Evid.

17
18

Petitioner contends the trial court improperly admitted the

19

preliminary hearing testimony of Richard de la Cruz following the

20

court’s determination that De la Cruz was “unavailable” to testify at

21

trial.

22

in finding De la Cruz unavailable and that the admission of De la

23

Cruz’ preliminary hearing testimony did not prejudice the defendants,

24

including Petitioner (Respondent’s Lodgment 10, pp. 32-34; see People

25

v. Martin, 2014 WL 3736212, at *16-18).

26

///

27

///

28

///

The Court of Appeal ruled that the trial court had not erred

46

1

B.

Factual Background

2
3

1.

Preliminary Hearing - December 10, 2009

4
5

During the preliminary hearing, the prosecutor told the court

6

that Richard de la Cruz had been subpoenaed to testify but had said he

7

would not appear (C.T. 23-24).

8

(C.T. 24).

9

(C.T. 53-54).

The court issued a body attachment

Later that afternoon, De la Cruz appeared and testified
De la Cruz stated that he was at the park with Juarez,

10

Rodriguez and McCarty when he heard shots coming from the parking lot

11

(C.T. 55-56, 59).

12

56-57).

13

had seen nothing and did not “know who it was” (C.T. 60).

14

his testimony, De la Cruz admitted telling Lozano that De la Cruz

15

allegedly had seen two Black males in their twenties (C.T. 62).

16

denied telling Lozano that the shooter wore a black shirt and grey

17

hoodie (C.T. 63).

18

Lozano, but later said he had described the man as wearing a blue

19

shirt (C.T. 63, 80).

De la Cruz allegedly ran to the teen center (C.T.

De la Cruz said he told police officer Lozano that De la Cruz
Later in

He

De la Cruz first denied describing the other man to

20
21

De la Cruz denied telling Lozano that, when the two men walked

22

up, Juarez said “Who are these tintos?” (C.T. 70-71, 74).

23

said that Juarez said “Who are these fools?” (C.T. 71).

24

telling Lozano that one of the men said “What’s up cuz” before the

25

shooting (C.T. 64).

26

the Santa Monica 13 gang (C.T. 68).

27

Lozano that the shooter or shooters ran from the parking lot toward

28

Pico after the shooting (C.T. 78).

De la Cruz
He denied

De la Cruz denied being a self-admitted member of
De la Cruz admitted he told

De la Cruz said that, when police
47

1

took him to a show-up of two individuals whom police had in custody,

2

De la Cruz told police those two people were not involved in the

3

incident (C.T. 76).

4

shoelaces,” a derogatory term for Venice Shoreline Crips (C.T. 78-79).

De la Cruz denied telling Lozano “[i]t was those

5
6

2.

Due Diligence Hearing - August 31, 2011

7
8
9

On August 9, 2011, the first day of trial, the court again issued
a body attachment for De la Cruz (C.T. 1037).

On August 31, 2011,

10

during trial, the court held a “due diligence” hearing concerning

11

efforts to locate De la Cruz (R.T. 3966-67; C.T. 1108).

12

Seok Ahn and Officer Alfonso Lozano testified at the hearing.

Detective Hee

13
14

a.

Hee Seok Ahn

15
16

Detective Hee Seok Ahn testified as follows:

17
18

De la Cruz was 17 and had attended Santa Monica High

19

School, although he was not a current student (R.T. 3976-

20

77).

21

which yielded an “old address” in Santa Monica and indicated

22

De la Cruz’ license had been suspended or revoked (R.T.

23

3978).

24

addresses (R.T. 3983).

25

initial subpoena on De la Cruz at an apartment on Felton

26

Street in Inglewood, apparently De la Cruz’ current address

27

(R.T. 3968-69, 3975-78).

28

Cruz, who said, among other things, that he, De la Cruz, was

On August 2, 2011, Ahn ran a DMV check on De la Cruz,

Ahn conducted a computer check of De la Cruz’
On August 3, 2011, Ahn served the

At that time, Ahn spoke to De la

48

1

living at the Felton address with his mother, who confirmed

2

that De la Cruz was living there (R.T. 3983).

3

said he was not working and not attending school (R.T. 3983-

4

84, 3990).

De la Cruz

5
6

After De la Cruz failed to appear in court, Ahn

7

contacted De la Cruz’ mother but she would not tell him

8

where her son was then living (R.T. 3984).

9

stepbrother also would not reveal De la Cruz’ location (R.T.

De la Cruz’

10

3985).

On August 12, 2011, Ahn went to the Felton residence

11

to attempt to locate De la Cruz and spoke with De la Cruz’

12

brother (R.T. 3969).

13

left on August 7, the Sunday before De la Cruz was supposed

14

to appear in court on August 9, and that the brother did not

15

know where De la Cruz was (R.T. 3970-71).

16

that De la Cruz “knew he [De la Cruz] was wanted and that he

17

wasn’t going to come to court to testify” (R.T. 3970).

18

on August 12, Ahn made a “wanted persons flyer” for De la

19

Cruz and distributed it to Santa Monica police department

20

personnel (R.T. 3970-72).

21

Cruz went to school in Santa Monica and “hung out” there,

22

and many officers were “familiar with him and his hangouts”

23

(R.T. 3972).

24

Cruz in Santa Monica, where De la Cruz was known to “hang

25

out” (R.T. 3972).

26

Cruz on a daily basis and told officers that De la Cruz

27

might be at the high school, the Pico Youth Family Center,

28

the Virginia Avenue Park area or in the Pico neighborhood

The brother said that De la Cruz had

The brother said

Also

Ahn said he did so because De la

Ahn asked Officer Lozano to look for De la

Ahn spoke with other officers about De la

49

1

(R.T. 3973).

Ahn asked Lozano to return to the Felton

2

Street address on August 18 and asked Lozano to perform a

3

computer search (R.T. 3973-74).

4
5

Ahn returned to the Felton Street address on the day of

6

the due diligence hearing, August 31, and again spoke with

7

De la Cruz’ brother (R.T. 3973).

8

did not know where De la Cruz was and had not spoken with

9

him, but that his mother had spoken to De la Cruz (R.T.

10

The brother said that he

3974).

11
12

Prior to coming to court for the hearing, Ahn performed

13

a computer check to determine whether De la Cruz was in

14

custody (R.T. 3974, 3987).

15

la Cruz (R.T. 3974).

16

had been working when Ahn served the subpoena, was no longer

17

working (R.T. 3975).

18

phone number for De la Cruz (R.T. 3975).

Ahn found no new address for De

The phone number for De la Cruz, which

Family members said they had no new

19
20

b.

Alfonso Lozano

21
22

Officer Alfonso Lozano testified as follows:

23
24

Lozano had known De la Cruz “since he was a kid,” for

25

Lozano’s entire police career of seven years, and was

26

familiar with De la Cruz’ “hangouts” (R.T. 3993-94).

27

Cruz was a Santa Monica 13 gang member whose father was a

28

shotcaller for that gang (R.T. 3993).
50

De la

Lozano had last seen

1

De la Cruz in June of 2011 (R.T. 3995).

2
3

In early August, Detective Ahn contacted Lozano with

4

the request that Lozano “keep an eye out” for De la Cruz

5

(R.T. 3995).

6

officer went to the Felton Street address, but De la Cruz

7

was not there (R.T. 3995).

8

daily computer checks to make sure that the warrant was

9

still active and that De la Cruz had not been arrested in

On August 12, 2011, Ahn, Lozano and another

Thereafter, Lozano performed

10

another county or jurisdiction (R.T. 3995).

Lozano also

11

went to various locations where he had contacted De la Cruz

12

in the past and contacted Santa Monica 13 gang members, who

13

said they did not know De la Cruz’ whereabouts (R.T. 3996).

14

On August 17, Lozano went to the Felton Street address, but

15

De la Cruz’ mother and “half brother” said they had not seen

16

De la Cruz for the past few weeks (R.T. 3996).

17
18

The trial court said that, based on the evidence then presented,

19

the court was not ready to find that De la Cruz was unavailable,

20

noting that efforts to find De la Cruz were ongoing (R.T. 4012).

21
22

3.

Due Diligence Hearing - September 8, 2011

23
24

Detective Ahn and Officer Lozano testified at a further due

25

diligence hearing on September 8, 2011.

26

///

27

///

28

///
51

1

At that time, Detective Ahn testified as follows:

2
3

On September 1, 2011, Ahn caused the bulletin

4

concerning De la Cruz to be sent to agencies in Los Angeles

5

County and other counties (R.T. 5466).

6

spoke to an Inglewood Police Department supervisor who said

7

he had distributed the flyer to patrol and gang officers,

8

and had briefed officers at roll call (R.T. 5466).

9

Inglewood police conducted a computer check which showed no

On September 2, Ahn

10

recent contacts with De la Cruz (R.T. 5467).

A utilities

11

check on the Felton Street address showed De la Cruz’ father

12

as the account holder at that location (R.T. 5466).

13

knew De la Cruz and his parents, but was unaware of any

14

other family members in the area (R.T. 5468).

Ahn

15
16

Ahn served the initial subpoena on De la Cruz only, in

17

the presence of De la Cruz’ mother and stepbrother (R.T.

18

5469-71).

19

(R.T. 5471-72).

20

important that De la Cruz appear in court and that, if De la

21

Cruz did not do so, the judge would probably find De la Cruz

22

in contempt and issue an arrest warrant (R.T. 5471).

23

Cruz’ mother said she would have her son at court on the

24

court date (R.T. 5471).

25

///

27

///

28

Ahn explained to the mother that it was

///

26

Ahn did not serve the mother with a subpoena

///
52

De la

1

Officer Lozano testified as follows:

2
3

Since the prior hearing, Lozano had continued to look

4

for De la Cruz (R.T. 5453-55; C.T. 1138).

Lozano and others

5

conducted surveillance at the home of De la Cruz’ father on

6

August 31 and September 1, but observed no activity (R.T.

7

5455-56).

8

other Los Angeles police agencies, including the West Los

9

Angeles gang unit, the Pacific gang unit, the Culver City

On September 1, Lozano met with officials of

10

gang unit, the probation department, and an official in

11

charge of all the Los Angeles west bureaus (R.T. 5456).

12

Lozano told the agencies that De la Cruz was still wanted

13

and officers were trying to locate him (R.T. 5456).

14

lieutenant said that he would pass on the information to the

15

Los Angeles Police Department west and south bureaus and to

16

all of the gang units (R.T. 5456).

A

17
18

Lozano said that he checked the warrant system every

19

day to confirm that the warrant was still active (R.T.

20

5456).

21

who had no record of De la Cruz in juvenile facilities (R.T.

22

5456).

23

undercover surveillance of the home of De la Cruz’ father,

24

but again saw no activity, and no one answered the door

25

(R.T. 5456-57).

26

card for De la Cruz’ father and went to the address listed

27

on the card, but no one answered the door (R.T. 5457).

28

On September 1, Lozano spoke to a probation officer,

On September 2, Lozano and his partner conducted an

Lozano located a 2009 field identification

///
53

1

On September 3, Lozano conducted a surveillance of the

2

Felton Street address but saw no activity (R.T. 5457).

3

Later, Lozano returned to that address and spoke to De la

4

Cruz’ brother, who again said he had not seen or spoken to

5

De la Cruz (R.T. 5457).

6

locations which Detective Ahn reportedly said De la Cruz had

7

used in the past, but was unsuccessful in locating De la

8

Cruz at any of those locations (R.T. 5457-58).

Lozano went to three other

9
10

Lozano returned to the home of De la Cruz’ father and

11

spoke to the father’s alleged girlfriend, who claimed that

12

she had not seen De la Cruz for approximately a year and had

13

not seen the father for six months (R.T. 5458-59).

14
15

On Lozano’s next work day, September 6, Lozano returned

16

to one of the addresses he visited on September 3 and spoke

17

to a woman who said she had no relationship with the De la

18

Cruzes and did not know what the officers were doing there

19

(R.T. 5459).

20

and went to the addresses listed but was unsuccessful in

21

locating either De la Cruz or his father (R.T. 5459).

22

Lozano determined that De la Cruz was not in Sheriff’s

23

Department custody (R.T. 5459).

24

organizations where De la Cruz usually congregated had not

25

seen or heard of De la Cruz (R.T. 5459-60).

Lozano ran the father through the DMV database

Santa Monica community

26
27
28

Lozano talked to an officer who contacted De la Cruz’
ex-girlfriend, who reportedly said she did not know De la
54

1

Cruz’ whereabouts (R.T. 5460).

Lozano conducted a

2

surveillance of the home of the ex-girlfriend on

3

September 6, to no avail (R.T. 5460).

4

Lozano knocked on the ex-girlfriend’s door, but no one

5

answered (R.T. 5460).

6

patrolling the neighborhood frequented by De la Cruz without

7

success (R.T. 5460-61).

On September 7,

Lozano and his partner had been

8
9

The trial court then ruled that the prosecution had shown due

10

diligence in attempting to locate De la Cruz, observing that the

11

officers had made “more efforts in this case than I’ve seen in the

12

vast majority of cases,” and that it was clear that De la Cruz “does

13

not wish to be here” and had been avoiding places at which he could be

14

located (R.T. 5552-53).

15

introduce De la Cruz’ preliminary hearing testimony (R.T. 5553, 5557-

16

58; C.T. 1138).

The court permitted the prosecution to

17
18

C.

Discussion

19
20

Petitioner contends the prosecution did not show due diligence

21

because the prosecution assertedly should have subpoenaed De la Cruz’

22

mother (Pet. Mem., p. 64).

23

prosecution done so, the mother “could have produced De la Cruz” (id.,

24

pp. 64-65).

25

///

26

///

27

///

28

///

According to Petitioner, had the

Petitioner argues that California Penal Code section

55

1

13288 required that Detective Ahn serve the subpoena on a parent of De

2

la Cruz, and that the court should have compelled the mother to come

3

to court and give information concerning her son’s whereabouts (id.,

4

pp. 61-62).

5

that: (1) any alleged noncompliance with section 1328 did not affect

6

the diligence inquiry; (2) the defendants, including Petitioner, had

7

not shown that additional efforts to locate De la Cruz “would have

8

helped”; and (3) the evidence “amply” supported the trial court’s

9

determination of due diligence (Respondent’s Lodgment 10, p. 32; see

The Court of Appeal rejected these arguments, ruling

10

People v. Martin, 2014 WL 3736212, at *17).

11

deemed the admission of the challenged testimony harmless because it

12

was “more or less consistent with the observations and testimony of

13

other witnesses and in some respects helpful to the . . . defense”

14

(Respondent’s Lodgment 10, p. 33; see People v. Martin, 2014 WL

15

3736212, at *17).

The Court of Appeal also

16
17

The Confrontation Clause prohibits the admission of an out-of-

18

court testimonial statement at a criminal trial unless the witness is

19

unavailable to testify and the defendant had a prior opportunity for

20

cross-examination.

21

(“Crawford”).

22

hearing testimony was “testimonial” hearsay within the meaning of

23

Crawford, or that the defense had a prior opportunity to cross-examine

Crawford v. Washington, 541 U.S. 36, 59 (2004)

Neither side disputes that De la Cruz’ preliminary

24
8

25
26
27
28

At the time of Petitioner’s trial, section 1328(b)(1)
provided in pertinent part that service of a subpoena on a minor
“shall be made on the minor’s parent, guardian, conservator, or
similar fiduciary. . . .” A 2016 amendment to the statute did
not alter this particular provision. See 2016 Cal. Leg. Serv.
Ch. 59 (S.B. 1471), approved by the Governor and filed with the
Secretary of State on July 1, 2016.
56

1

De la Cruz (see C.T. 67-77 [defense cross-examination of De la Cruz]).

2
3

“The constitutional requirement that a witness be ‘unavailable’

4

stands on separate footing that is independent of and in addition to

5

the requirement of a prior opportunity for cross-examination.”

6

States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (citations omitted).

7

A witness is not “unavailable” for purposes of the hearsay exception

8

for former testimony “‘unless the prosecutorial authorities have made

9

a good-faith effort to obtain [the witness’] presence at trial.’”

United

10

Hardy v. Cross, 132 S. Ct. 490, 493 (2011) (quoting Barber v. Page,

11

390 U.S. 719, 724-25 (1968)); Windham v. Merkle, 163 F.3d 1092, 1102

12

(9th Cir. 1998); People v. Smith, 30 Cal. 4th 581, 609, 134 Cal. Rptr.

13

2d 1, 68 P.3d 302 (2003), cert. denied, 540 U.S. 1163 (2004) (noting

14

good faith requirement of Barber v. Page is “similar” to due diligence

15

requirement of California Evidence Code section 240(a)(5)).

16

“the law does not require the doing of a futile act, and the extent of

17

the effort the prosecutor must make is a question of reasonableness.”

18

United States v. Olafson, 213 F.3d 435, 441 (9th Cir.), cert. denied,

19

531 U.S. 914 (2000) (citation, quotations and brackets omitted).

However,

20
21

In Ohio v. Roberts, 448 U.S. 56 (1980), abrogated on other

22

grounds, Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court

23

held that the prosecution had made a good faith effort to locate an

24

unavailable witness, despite the prosecution’s failure to contact a

25

social worker who might have been able to assist in finding the

26

witness.

27

although “[one], in hindsight, may always think of other things,” the

28

“great improbability that such efforts would have resulted in locating

Ohio v. Roberts, 448 U.S. at 75-76.

57

The Court held that,

1

the witness, and would have led to her production at trial,

2

neutralized any intimation that a concept of reasonableness required

3

their execution.”

Id. at 76.

4
5

The United States Supreme Court also addressed the issue of

6

diligence in locating a witness in Hardy v. Cross, supra.

7

case, a kidnap and sexual assault victim testified at the petitioner’s

8

first trial prior to the grant of a motion for a mistrial.

9

Cross, 132 S. Ct. at 491.

In that

Hardy v.

Nine days prior to the retrial, the

10

prosecutor informed the court that the witness could not be located.

11

Id. at 492.

12

the witness declared unavailable and to introduce her prior testimony.

13

Id.

14

witness, although “extremely frightened,” had indicated her

15

willingness to testify at the retrial, and that the prosecution had

16

remained in “constant contact” with the witness and her mother.

17

However, approximately three weeks before the retrial, the witness had

18

disappeared.

19

investigators they did not know the witness’ whereabouts.

20

Investigators made personal visits to the witness’ home and that of

21

her father, and contacted the witness’ parents and other family

22

members.

23

examiner, the witness’ school, the family of the witness’ old

24

boyfriend, the office of the state secretary of state, the welfare

25

department, the morgue, the public health department, the jail, the

26

post office, and immigration authorities.

27

before the retrial, the witness’ mother told a detective that the

28

witness had called two weeks previously, saying she did not want to

The day before the retrial, the prosecutor moved to have

The prosecutor told the court that after the first trial the

Id.

Id.

Id.

The witness’ mother, father and brother told
Id.

Investigators also contacted the county medical

58

Id. at 492-93.

The day

1

testify and would not return to the area.

Id. at 493.

2
3

The trial court admitted the prior testimony and the state court

4

of appeals affirmed, ruling that the prosecution’s efforts met the

5

constitutional diligence standard.

6

States Court of Appeals for the Seventh Circuit disagreed, noting that

7

investigators had not contacted the victim’s current boyfriend and a

8

school at which the victim once had been enrolled.

9

unanimous summary per curiam disposition, the United States Supreme

Id.

On habeas review, the United

Id. at 494.

In an

10

Court reversed.

11

the deferential AEDPA standard of review, the Seventh Circuit erred in

12

deeming the state court of appeals’ determination unreasonable.

13

The Supreme Court stated that the constitution did not “require the

14

prosecution to exhaust every avenue of inquiry, no matter how

15

unpromising.”

16

deferential standard of review set out in 28 U.S.C. § 2254(d) does not

17

permit a federal court to overturn a state court’s decision on the

18

question of unavailability merely because the federal court identifies

19

additional steps that might have been taken.”

Id. at 494-95.

Id.

The Supreme Court held that, under

Id.

The Court continued: “And, more to the point, the

Id. at 495.

20
21

Similarly here, this Court cannot deem unreasonable the state

22

court’s diligence determination on the basis of Petitioner’s arguments

23

that more could have been done.

24

la Cruz resemble those described in Hardy v. Cross and far exceed the

25

efforts deemed deficient in Barber v. Page, 390 U.S. at 723 (“the

26

State made absolutely no effort to obtain the presence of [the

27

witness] at trial other than to ascertain that he was in federal

28

prison outside Oklahoma”).

The exhaustive efforts to locate De

Furthermore, no “clearly established”
59

1

Supreme Court law requires the prosecution to attempt to subpoena a

2

witness who has gone into hiding.

3

494-95 (“the issuance of a subpoena may do little good if a sexual

4

assault victim is so fearful of an assailant that she is willing to

5

risk his acquittal by failing to testify at trial”).

6

suggestion that De la Cruz’ mother would have revealed her son’s

7

whereabouts if only she had been compelled to come to court

8

constitutes dubious speculation in light of the evidence that the

9

mother repeatedly told officers she did not know her son’s

See Hardy v. Cross, 132 S. Ct. at

Petitioner’s

10

whereabouts.

11

inquiry that purportedly could have been pursued in an effort to

12

locate De la Cruz, the efforts that the officers did undertake were

13

not unreasonable.

Although Petitioner points to other potential avenues of

See Hardy v. Cross, 132 S. Ct. at 494-95.5

14
15

Therefore, the Court of Appeal’s rejection of Petitioner’s

16

Confrontation Clause claim was not contrary to, or an objectively

17

unreasonable application of, any clearly established Federal law as

18

determined by the United State Supreme Court.

19

2254(d).

20

claim.

See 28 U.S.C. §

Petitioner is not entitled to federal habeas relief on this

21
22
5

23
24
25
26
27
28

To the extent Petitioner contends the trial court
violated state law by admitting De la Cruz’ prior testimony
although the prosecution assertedly had not served a subpoena on
De la Cruz’ mother, Petitioner alleges only a state law claim for
which federal habeas relief is unavailable. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran,
562 U.S. 1, 5 (2010) (per curiam) (“it is only noncompliance with
federal law that renders a State’s criminal judgment susceptible
to collateral attack in the federal courts”) (original emphasis);
Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992)
(“Federal habeas will not lie for errors of state law”).
60

1

VI.

Petitioner’s Challenge to the Trial Court’s Failure to

2

Investigate a Juror’s Alleged Use of a Cell Phone During Trial

3

Does Not Merit Federal Habeas Relief.

4
5

A.

Background

6
7

On the first day of trial, the prosecutor called witnesses who

8

testified concerning the McKillian murder (R.T. 2130-2220).

9

witnesses did not provide any testimony concerning Petitioner.

The
During

10

a break, the prosecutor said that she had seen a juror “consistently

11

on his phone” but that she did not know whether the juror was “texting

12

or surfing the web” (R.T. 2224).

13

made by the court and defense counsel that the likely subject of any

14

web search was the presence of Minerva on the Great Seal of California

15

(R.T. 2224).

16

further inquiry concerning the juror’s alleged use of a cell phone.

17

The court said it would admonish the jurors (R.T. 2224).

18

jurors reentered the courtroom, the court said: “. . . I want to

19

remind you, don’t research Minerva or anything else while we’re in

20

session here.

21

session” (R.T. 2224).

There followed some joking comments

Neither the prosecutor nor defense counsel requested any

When the

The phones stay put away, okay, while the court is in

22
23

Petitioner faults the trial court for failing to investigate the

24

juror’s use of a cell phone, analogizing the situation to that of a

25

sleeping juror (Pet. Mem., pp. 17-19).

26

the situation “indicated at most a failure to adhere to the court’s

27

instructions concerning courtroom behavior (not unusual at the trial’s

28

outset). . . .” (Respondent’s Lodgment 10, p. 39; People v. Martin,
61

The Court of Appeal ruled that

1

2014 WL 3736212, at *21).

The Court of Appeal observed that

2

Petitioner sought no further inquiry, apparently satisfied with the

3

court’s admonishment to the jury, that there was no reason to doubt

4

the effectiveness of that admonishment, and that the record did not

5

show that the juror was unable to perform his duties during the

6

remainder of the trial (Respondent’s Lodgment 10, p. 39; People v.

7

Martin, 2014 WL 3736212, at *21).

8

that any error was “unquestionably harmless” because the incident

9

occurred during the first day of trial during testimony which related

The Court of Appeal further held

10

to the McKillian murder, of which Martin was acquitted (Respondent’s

11

Lodgment 10, pp. 39-40; People v. Martin, 2014 WL 3736212, at *21).

12
13

B.

Discussion

14
15

“Due process means a jury capable and willing to decide the case

16

solely on the evidence before it, and a trial judge ever watchful to

17

prevent prejudicial occurrences and to determine the effect of such

18

occurrences when they happen.”

19

(1982) (“Smith”).

20

bias must undertake an investigation” that is “reasonably calculated

21

to resolve doubts raised about the juror’s impartiality.”

22

Calderon, 151 F.3d 970, 974-75 (9th Cir.) (en banc), cert. denied, 525

23

U.S. 1033 (1998); see Remmer v. United States, 347 U.S. 227 (1954)

24

(“Remmer”); Smith, 455 U.S. at 215-17.

25

not stand for the proposition that any time evidence of juror bias

26

comes to light, due process requires the trial court to question the

27

jurors alleged to have bias.”

28

1044 (9th Cir. 2003), cert. denied, 543 U.S. 864 (2004).

Smith v. Phillips, 455 U.S. 209, 217

“A court confronted with a colorable claim of juror

Dyer v.

However, “Remmer and Smith do

Tracey v. Palmateer, 341 F.3d 1037,

62

1

The Ninth Circuit has held that a state court’s failure to hold a

2

sua sponte evidentiary hearing into the issue of juror bias or

3

misconduct is not contrary to, or an unreasonable application of, any

4

clearly established federal law as determined by the United States

5

Supreme Court.

6

cert. denied, 546 U.S. 1066 (2005).

7

failure to hold a sua sponte hearing in Petitioner’s case to inquire

8

concerning an allegedly inattentive juror cannot entitle Petitioner to

9

federal habeas relief.

Sims v. Rowland, 414 F.3d 1148, 1152-56 (9th Cir.),
Therefore, the trial court’s

See 28 U.S.C. § 2254(d).

10
11

Furthermore, even if a juror is found to have been inattentive

12

during portions of the trial, “a new trial may not be required if [the

13

juror] did not miss essential portions of the trial and was able

14

fairly to consider the case.”

15

1076, 1083 n.13 (9th Cir. 1983).

16

claim of juror inattentiveness or misconduct sufficient to warrant

17

further inquiry.

18

at the time of the incident, and none argued that the juror had been

19

using the cell phone during an “essential portion” of the trial.

20

Petitioner, who was present at trial, has not alleged that he saw any

21

juror displaying inattentiveness during any portion of the trial, much

22

less during any “essential portion.”

23

any need for further inquiry or any violation of Petitioner’s right to

24

a fair trial.

25

(9th Cir. 1987) (presence of sleeping juror did not violate

26

constitution where the “testimony missed during the nap” was

27

“insubstantial”); Zarate v. Chrones, 2009 WL 866858, at *9 (C.D. Cal.

28

Mar. 25, 2009) (even assuming trial court erred in failing to conduct

United States v. Barrett, 703 F.2d
Petitioner has not shown a colorable

None of the defense attorneys sought investigation

Hence, Petitioner has not shown

See United States v. Springfield, 829 F.2d 860, 864

63

1

further inquiry into whether juror was sleeping during trial, any

2

error was harmless, where petitioner failed to show juror “missed

3

essential portions of the trial” or was “unable fairly to consider the

4

case”).

5

was not contrary to, or an objectively unreasonable application of,

6

any clearly established Federal law as determined by the United States

7

Supreme Court.

8

U.S. 86, 100-03 (2011).

Accordingly, the Court of Appeal’s rejection of this claim

See 28 U.S.C. § 2254(d); Harrington v. Richter, 562

9
10

Additionally, because Petitioner has failed to show that any

11

allegedly inattentive juror missed “essential portions” of the trial,

12

Petitioner has failed to show that the absence of further inquiry had

13

any “substantial and injurious effect” on the verdict within the

14

meaning of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)

15

(“Brecht”) (forbidding a grant of habeas relief for a trial-type error

16

unless the error had a “substantial and injurious effect or influence”

17

on the outcome of the case).

18

prosecutor’s revelation concerning a juror’s alleged use of a cell

19

phone largely concerned the McKillian murder.

20

Hodnett did testify that the Venice Shoreline Crips was a Venice gang,

21

that McKillian was a member of that gang, that she had seen Martin,

22

Birdsong and Cole around in Oakwood and Venice and that Cole’s

23

nickname “on the streets” was “T-Dogg” (R.T. 2151-53, 2179).

24

there was no testimony concerning Petitioner.

25

Hodnett’s testimony showed Martin, Birdsong and Cole were gang

26

members, the prosecution introduced substantial evidence, after the

27

judge’s admonishment to the jury concerning alleged cell phone use,

28

that those three defendants were gang members and/or gang associates

The testimony adduced prior to the

64

Witness Lekeidra

However,

To the extent that

1

(see R.T. 3097-99, 3103-04, 3128-29, 3341, 3344, 3351-52, 3391-93,

2

3423-24, 3443, 3450-51, 3458-59, 3461-64, 3621-22, 3628-29, 3633,

3

6031-35, 6044-45, 6058-60).

4

the juror’s alleged use of a cell phone was harmless under the Brecht

5

standard.

6

federal habeas relief on this claim.

Accordingly, the failure to investigate

For all of these reasons, Petitioner is not entitled to

7
8

VII. Petitioner’s Claim of Cumulative Error Does Not Merit Federal

9

Habeas Relief.

10
11

“While the combined effect of multiple errors may violate due

12

process even when no single error amounts to a constitutional

13

violation or requires reversal, habeas relief is warranted only where

14

the errors infect a trial with unfairness.”

15

F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S. Ct. 426 (2012).

16

Habeas relief on a theory of cumulative error is appropriate when

17

there is a “‘unique symmetry’ of otherwise harmless errors, such that

18

they amplify each other in relation to a key contested issue in the

19

case.”

20

denied, 133 S. Ct. 424 (2012) (citation omitted).

21

symmetry of otherwise harmless errors exists.

22

court’s rejection of Petitioner’s cumulative error claim was not

23

contrary to, or an objectively unreasonable application of, any

24

clearly established Federal Law as determined by the Supreme Court of

25

the United States.

26

562 U.S. at 100-03.

27

relief on this claim.

28

///

Payton v. Cullen, 658

Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert.
Here, no such

Accordingly, the state

See 28 U.S.C. § 2254(d); Harrington v. Richter,
Petitioner is not entitled to federal habeas

65

1

RECOMMENDATION

2
3

For the foregoing reasons, IT IS RECOMMENDED that the Court issue

4

an Order: (1) accepting and adopting this Report and Recommendation;

5

(2) directing that Judgment be entered denying and dismissing the

6

Petition with prejudice.

7
8

DATED: August 15, 2016.

9
10
11

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
66

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

No notice of appeal pursuant to the

9

If the District Judge enters judgment adverse to Petitioner, the

10

District Judge will, at the same time, issue or deny a certificate of

11

appealability.

12

and Recommendation, the parties may file written arguments regarding

13

whether a certificate of appealability should issue.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Within twenty (20) days of the filing of this Report