Cha v. Tilton

Filing 16

ORDER Denying 28 U.S.C. 2254 Petition For Writ Of Habeas Corpus, signed by Chief Judge Irma E. Gonzalez on 3/30/2009. It is ORDERED Cha's federal habeas petition is DENIED in its entirety, terminating this action. CASE CLOSED. (Scrivner, E)

1 2 3 4 5 6 7 8 9 10 vs. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a determinate sentence of 49 years, seeks a 28 U.S.C. § 2254 writ of habeas corpus. A jury convicted Cha in June 2003 of four counts of assault with a firearm and one count of felon in possession of a firearm, with gang findings. He alleges five grounds for relief: (1) denial of due process, equal protection, and a fair trial in the prosecutor's use of peremptory challenges; (2) insufficient evidence to support the gang enhancements under an unconstitutionally vague statute; (3) instructional error; (4) the prosecutor's summation violated due process; and (5) violation of due process associated with sentence enhancements based on impermissible court fact-finding. Respondents filed an Answer, and Cha filed a Traverse. After careful consideration of relevant portions of the record, the parties' arguments, and pertinent legal authority, for the reasons discussed below, the Petition is DENIED. I. BACKGROUND A. Factual Background JAMES E. TILTON, Secretary of the California Dept. of Corrections and Rehabilitation (CDCR); A. K. SCRIBNER, Warden, Respondents. Proceeding with the assistance of counsel, petitioner Kou Cha ("Cha"), a state prisoner serving KOU CHA, Petitioner, CASE NO. 06cv1672-IEG(AJB) ORDER DENYING 28 U.S.C. § 2254 PETITION FOR WRIT OF HABEAS CORPUS

U N I T E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA F R E S N O DIVISION

Cha was charged with multiple felonies following shootings during an incident at the Fresno Fairgrounds in December 2002. The parties do not dispute the factual findings recited by the California

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Court of Appeal in affirming his conviction and sentence on direct appeal, reproduced verbatim in Respondent's Answer. Federal courts presume the correctness of a state court's determination of a factual issue, and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). On December 26, 2002, M.V., Foua Moua, Chau Vue, and Chai Thao were leaving the Hmong New Year festivities at the Fresno Fairgrounds when they were shot. Eighty-eight-year-old Chau Vue fell to the ground after she was shot. She did not see who shot her. Nine-year-old M.V. did not see the person who shot her. Koung Vang was working security for the Hmong New Year on December 26 when he saw defendant and a number of other people in a dispute. Vang knew defendant prior to this occasion. Defendant was wearing a red sweater with white stripes on the arms. Someone threw a club or a similar item at defendant. Defendant stepped up toward the gate, pulled out a gun, and started firing. Vang saw shell casings expended from the gun that defendant was firing. Vang recalled three shots being fired. Defendant ran off. Vang did not report what he saw that day because he had to leave his work at the fairgrounds to go work at a party, he saw that the police had defendant in custody, and he knew defendant was a member of the Oriental Ruthless Boys gang. Vang picked defendant from a photographic lineup and was 100 percent positive he was the shooter. Vang saw only one shooter. Vang testified that he knows the difference between a semiautomatic gun and a revolver. The gun was black in color. He confirmed to the defense investigator, Darren Hise, that the gun he saw defendant shoot was a semiautomatic. Chau Vue's young grandson was with her when he heard several shots. After some of the shots were fired, the grandson looked and saw a shooter wearing black with slicked back hair. Robert Patton was an armed security guard working in the parking lot of the Fresno Fairgrounds at the Hmong New Year festival. He heard numerous shots being fired. Ben Snyder, one of the other security officers, communicated with him and gave him descriptions of two individuals fitting the shooting suspects' descriptions. One of the descriptions was of an individual wearing a red shirt with white stripes. Patton saw defendant run through the parking lot and jump the fence. Patton continued to watch defendant until he was apprehended by the police. Defendant was wearing a red sweater with white stripes. He did not have anything in his hands. Officer Gary Beer received a description from Patton of defendant. Beer apprehended defendant as he was walking away from the fairgrounds. Jerome Torres, another security guard in the area, saw defendant and another male in a dark jacket run through the parking lot after the shooting. Defendant had a shaved head. -20 6 cv 1 6 7 2

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Criminalist Stephen John O'Clair examined the cartridge cases and unspent cartridges located at the crime scene. He examined three nine-millimeter Luger cartridge cases and two unfired nine-millimeter Luger cartridges. It was O'Clair's opinion that all three of the cartridge cases were fired from the same gun. The cartridges were similar to the cartridge cases, but O'Clair was not able to positively say that the cartridges had been chambered in the same weapon from which the recovered cartridge cases had been fired, although they probably came from the same weapon. The cartridges and the cartridge cases all came from a semiautomatic weapon. O'Clair also examined two lead fragments and a copper jacket recovered from one of the victims. He could not say that the items recovered from the victim came from the same weapon as the expended casings found at the scene, although he believed that they probably did come from the same weapon. Police detective Michael Harris testified that Jennifer Xiong identified defendant as a shooter in a photographic lineup. Police detective Scott Moore presented testimony to support his opinion that defendant is a member of the Oriental Ruthless Boys criminal street gang and the crimes were committed for the benefit of the gang. Defense

15 16 17 18 19 20 21 22 23 24 25 26 27 28 M. X. was in the parking lot at the fairgrounds waiting for a ride from her mother. She heard three gunshots but did not see a gun. She did not recall telling an officer that she saw a man dressed in black firing a revolver. She said she was afraid to be in court. -3Ben Snyder was working security in the parking lot. He saw only one shooter. The shooter was dressed in dark clothing and had dark hair. He had a black handgun that looked like a semiautomatic weapon. He did not see a person in red, and denied describing the clothing of the shooter when he radioed to Patton about the shooting. He heard shots, and when he turned he saw the man in dark clothing fire two more rounds. Chong Vue said he was stopped in the street in front of the fairgrounds. He saw and heard people arguing for about 10 minutes. He did not see anyone in a red sweater in the group. He saw a male dressed in dark clothing fire a semiautomatic weapon. He only saw one shooter and, although he heard approximately five shots, he only saw the shooter in dark clothing fire the first two shots before Vue covered himself. Several witnesses testified to incidents showing that Koung Vang was more familiar with defendant than he indicated in his testimony. In particular, witnesses testified that Vang's friends and defendant's friends had fought and that Vang had asked defendant to help him fight some other individuals.

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Long Xiong was waiting outside the fairgrounds for a ride. He heard an argument among individuals wearing dark clothing. He heard gunshots. He saw someone wearing dark clothing with a gun. Jennifer Xiong was at the Hmong New Year festival when her friend, Foua, was shot. Two groups were arguing. Jennifer saw the shooter fire two or three shots. She described the shooter as wearing black, with spiky hair. Although Jennifer had seen defendant earlier, the shooter was not defendant. She said the shooter was holding a semiautomatic weapon. She knew what a semiautomatic weapon looked like because she had been raped at gunpoint when she was a child. Defendant is her best friend's cousin. Jennifer was shown photographs after the shooting and testified that she was asked to pick out people she knew. She picked out the defendant's picture. She denied that she was asked to pick out pictures of the shooter/shooters. (Ans. pp. 6-7, quoting Lodg. 3, pp. 2-5; see Traverse p. 1, citing Pet. Exh. A, pp. 35-65.). B. Procedural Background

A First Amended Complaint filed February 13, 2003 charged Cha with nine felonies: Count One, assault with a firearm on Maycha Vang, in violation of CAL. PEN. CODE § 245(a)(2), with personal use of a handgun (CAL. PEN. CODE § 12022.5(a)(1)), with infliction of great bodily injury (CA L. PEN. CODE § 12022.7(a)) causing the offense to become a serious felony (CAL. PEN. CODE § 1192.7(c)(8)) and a violent felony (CAL. PEN. CODE § 667.5(c)(8)); Count Two, assault with a semiautomatic firearm on Maycha Vang, in violation of CAL. PEN. CODE § 245(b), with personal use of a handgun (CAL. PEN. CODE § 12022.5(a)(1)), with infliction of great bodily injury (CAL. PEN. CODE § 12022.7(a)) causing the offense to become a serious felony (CAL. PEN. CODE § 1192.7(c)(8)) and a violent felony (CAL. PEN. CODE § 667.5(c)(8)); Count Three, the same allegations as in Count One, identifying the victim as Foua Moua; Count Four, the same allegations as in Count Two, identifying the victim as Foua Moua; Count Five, the same allegations as in Count One, identifying the victim as Chau Vue; Count Six, the same allegations as in Count Two, identifying the victim as Chau Vue; Count Seven, the same allegations as in Count One, identifying the victim as Chai Thao; Count Eight, the same allegations as in Count Two, identifying the victim as assault with a semiautomatic firearm on Chai Thao; and Count Nine, possession of a firearm by a felon, citing two prior convictions from 2001 and 2002, one of which was identified as a prior serious felony conviction, or "strike."1 The complaint also alleged the crimes in Counts One through Eight were eligible for gang enhancements,
Two misdemeanor charges were dismissed in consideration of the prison sentence. (SRT 1323.)

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citing CAL. PEN. CODE § 186.22 (b)(1) (crimes committed in, for the benefit of, at the direction of, or associated with a criminal street gang, and with the specific intent to promote, further, or assist in the criminal conduct of the street gang). (CT2 21-25.) The case was tried over five days in June 2003. (CT 234-259.) The jury deliberated one hour on June 17, 2003. They deliberated for the entire day on June 18, 2003, received responses to their written questions and readback of testimony, then forwarded a note: "After many hours of deliberation we have failed to reach a consensus." (CT 264-268.) On June 19, 2003, the court supplemented their instructions, authorized additional readback of testimony. Trial proceedings concluded at mid-day with rendered verdicts. (CT 269-270.) The jury found Cha not guilty of Counts One, Three, Five, and Seven. They convicted him of Counts Two, Four, Six, and Eight, with findings as to each he personally used a firearm, the crime was a gang offense, but he did not personally inflict great bodily injury, with an additional true finding under Count Six the victim is a person aged at least 70 years within the meaning of CAL. PEN. CODE § 12022.7(c). The jury also convicted him of Count Nine, felon in possession of a firearm, with a gang offense finding. (CT 273-285, 364-376.) He was sentenced on August 14, 2003 to a determinate term of 49 years in prison, comprised of: nine years on Count 6, with the arming allegation adding 10 years and the gang allegation adding another 10 years (totaling 29 years); two years each for Counts 2, 4, and 8 (a total of six years), with an additional 16 months for the arming allegations in each (a total of four additional years); and 40 months for each of the Counts 2, 4, and 8 gang allegations (a total of 10 additional years). (CT 399; Pet. p. 2.) Cha appealed, contending, as pertinent here: the prosecutor's use of peremptory challenges was motivated by group bias; insufficient evidence supported the gang enhancement; prosecutorial misconduct in the giving of a perfunctory closing argument, then an extensive rebuttal argument, precluding an effective defense reply; and coercion of jury verdicts through the court's supplemental instructions to a hung jury and refusal to instruct the jury it did not have to reach a verdict, coupled with one juror's personal time constraints. (Pet. pp. 2-4.) On May 12, 2005, the Court of Appeal affirmed the judgment. (Lodg. 3; Pet. Exh. A, pp. 35-65.)

"CT" refers to Lodgment 7, the Clerk's Transcript; "RT" refers to the Reporter's Transcripts provided as Lodgment 6; "SRT" refers to Supplemental Reporter's Transcript, provided after Lodgment 6, Vol. VI.

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Cha filed a Petition For Review in the California Supreme Court on June 21, 2005. (Pet. Exh. A, pp. 1-65.) He presented the following questions, as pertinent here: (1) whether he was denied due process and equal protection under Batson v. Kentucky, 476 U.S. 79 (1986) and Johnson v. California, 545 U.S. 162 (2005) in the prosecutor's use of peremptory challenges; (2) whether conviction of a gang enhancement requires a finding the defendant knew gang members had engaged in a pattern of criminal gang activity; (3) whether the court's supplemental instructions to a hung jury coupled with a juror's self-imposed time limits for deliberations coerced the jury into reaching its decisions; (4) whether the prosecutor's conduct in the structuring of his closing argument violated due process; and (5) whether Cha was sentenced in violation of Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S.220 (2005). (Pet. Exh. A, pp. 2-3.) Review was denied on August 24, 2005, in an en banc Order stating in its entirety: Petition for review denied without prejudice to any relief which defendant might be entitled upon finality of People v. Black (2005) 35 Cal.4th 1238 regarding the effect of Blakely v. Washington (2004) 542 U.S. __, 124 S.Ct. 2531, and United States v. Booker (2005) 543 U.S. __, 125 S.Ct. 738, on California Law. (Pet. Exh. A, p. 66; [Unnumbered] Lodgment.) Proceeding pro se, Cha thereafter filed three identical habeas petitions in the state courts: in the Fresno County Superior Court (filed within the first three months of 2006 and denied during that same period); in the California Court of Appeal, Fifth Appellate District, on April 17, 2006 (denied May 26, 2006); and in the California Supreme Court as Case No. S145847 on August 15, 2006. (Pet. pp. 5-12, 16; Pet. Exh. B.) Respondents concede all Cha's federal claims are exhausted, and the federal Petition was timely filed on November 20, 2006.3 This case became fully briefed on March 25, 2008, with the filing of Cha's Traverse. (Dkt No. 13.) On November 25, 2008, the matter was reassigned from the bench of the United States District Court for the Eastern District of California to visiting judge Irma E. Gonzalez, Chief Judge, United States District Court for the Southern District of California. (Dkt No. 14.) II. DISCUSSION

The abeyance or unexhausted claims abandonment requests in Cha's federal Petition were mooted by the state high court's June 20, 2007 denial of his last state petition. (Pet. pp. 19-20.)

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A.

Legal Standards

A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a) (West 2006). Only errors of federal law can support federal intervention in state court proceedings, and only to correct such errors. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). Federal habeas courts are bound by states' interpretations of their own laws. Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Federal habeas petitions filed after April 24, 1996 are decided under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"): (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ­ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (emphasis added).

18 " '[C]learly established Federal law . . . refers to the holdings, as opposed to the dicta, of this 19 Court's decisions as of the time of the relevant state-court decision.' " Carey v. Musladin, 549 U.S. 70, 20 74 (2006), quoting Williams v. Taylor, 529 U.S. 362, 412 (2000) (the lack of a United States Supreme 21 Court holding on an issue precludes federal habeas relief); see also Lockyer v. Andrade, 538 U.S. 63, 22 71-72 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002) (distinguishing the "contrary to" and the 23 "unreasonable application" clauses, with the latter requiring a finding of objective unreasonableness, 24 not merely incorrectness). AEDPA establishes a " 'highly deferential standard for evaluating state-court 25 rulings.' " Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted). 26 The denial of a petition by the state's highest court "without comment or citation constitute[s] 27 a decision on the merits of the federal claims," and "such claims [are] subject to review in federal habeas 28 proceedings." Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992). Where there is no reasoned -70 6 cv 1 6 7 2

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decision from the state's highest court, the federal court "looks through" to the rationale of the underlying decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding the judgment or rejecting the same claim rest upon the same ground"). B. Merits 1. Ground One: Peremptory Challenges

Cha argues he was denied due process, equal protection, and his right to a fair and impartial jury on grounds the prosecutor used peremptory challenges in a racially-motivated way to excuse two Hispanic jurors. He argues "the Court of Appeal's findings on the issue are both 'an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding,' " and "the Court of Appeal's decision is contrary to, or involved an unreasonable application of, 'clearly established Federal law. . . ,' " citing Batson, 476 U.S. 79 and Purkett v. Elem, 514 U.S. 765, 767 (1995). (Traverse, pp. 1, 10-11, quoting 28 U.S.C. § 2254(d)(1), (2).) State law defines the right, purpose, and manner of exercise of peremptory challenges. Ross v. Oklahoma, 487 U.S. 81, 89 (1988). In California, "no reason need be given for a peremptory challenge, and the court shall exclude any juror challenged peremptorily." CAL. CODE CIV. P. § 226(b). Nevertheless, the California Supreme Court in People v. Wheeler, 22 Cal.3d 258, 276 (1978) applied the representative cross-section rule of the California Constitution to prohibit the use of peremptory challenges to systematically exclude jurors based on such characteristics as race, religion, or ethnicity. See CAL. CODE CIV. P. § 231.5. Clearly established United States Supreme Court authority creates a similar prohibition. Batson, 476 U.S. at 84, 106 (purposeful racial discrimination in the selection process violates equal protection). The factual inquiry under both Wheeler and Batson is the same, and a Wheeler objection at trial is equivalent to a Batson challenge, preserving a defendant's Batson claim for purposes of federal habeas review. Paulino v. Castro, 371 F.3d 1083, 1088-89, n.4 (9th Cir. 2004); see Fernandez v. Roe, 286 F.3d 1073, 1075 (9th Cir. 2002). \\

"The Batson framework is designed to produce actual answers to suspicions and inferences that -8-

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discrimination may have infected the jury selection process." Johnson 545 U.S. 172, citing Batson, 476 U.S. at 97-98 and n.20. The inquiry proceeds in three steps: Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. . . . The second step of this process does not demand an explanation that is persuasive, or even plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. 352, 360 (1991). Purkett, 514 U.S. at 767-68 (parallel citations omitted) ("It is not until the third step that the

10 persuasiveness of the justification becomes relevant," with the "burden of persuasion regarding racial 11 motivation . . . never shift[ing] from[] the opponent of the strike"); Johnson, 545 U.S. at 171 ("The first 12 two Batson steps govern the production of evidence that allows the trial court to determine [at step 13 three] the persuasiveness of the defendant's constitutional claim"). 14 To satisfy step one, the defendant must show he or she "is a member of a cognizable racial 15 group, and that the prosecutor has exercised peremptory challenges to remove from the venire members 16 17 must also raise an inference, through facts and relevant circumstances, the prosecutor used peremptory 18 challenges "to exclude the veniremen from the petit jury on account of their race." Id. quoting Batson, 19 476 U.S. at 96. "[A] prima facie case of discrimination can be made out by offering a wide variety 20 of evidence, so long as the sum of the proffered facts gives 'rise to an inference of discriminatory 21 purpose.' " Id., quoting Batson, 476 U.S., at 94. The inquiry ends if the defendant fails to make a 22 prima facie showing at step one. Batson, 476 U.S. at 96-97. 23 If a defendant satisfies step one, the burden shifts to the prosecution at step two to rebut the 24 inference of bias by articulating a neutral reason(s) for the peremptory challenge(s). Purkett, 514 U.S. 25 at 768. The reasons need not be objective to be acceptable, as long as they are not pretexts for the 26 27 28
"The Supreme Court has 'liberalized Batson and abolished the requirement that the defendant and the stricken juror share the same race.' " Paulino v. Castro, 371 F.3d 1083, 1091, fn.6 (9th Cir. 2004); see Powers v. Ohio, 499 U.S. 400, 402 (1991); Tolbert v. Page, 182 F.3d 677, 680 n.4 (9th Cir. 1999) (en banc).
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of the defendant's race."4 Johnson, 545 U.S. at 169, quoting Batson, 476 U.S., at 96. The defendant

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systematic exclusion of members of a cognizable group. People v. Gray, 87 Cal.App.4th 781, 788-89 (2001) (inquiring whether the prosecutor had "any legitimate, nonsuspect reasons for excusing the jurors in question"); People v. Hall, 35 Cal.3d 161, 170 (1983) (even "hunches" can furnish acceptable reasons). At step two, courts focus on the subjective genuineness of the responding party's explanation of a neutral, nonracial motive, not the objective reasonableness of the explanation itself. Hernandez, 500 U.S. at 363; see Purkett, 514 U.S. at 768; see also People v. Reynoso, 31 Cal.4th 903, 924 (2003). Just days before Cha filed his Petition For Review in the California Supreme Court, the Johnson Court clarified the standard for satisfaction of the prima facie showing at step one of a Wheeler/Batson analysis, resolving a conflict between the standard applied by the Supreme Court of California and the standard applied by the Ninth Circuit Court of Appeals, rejecting California's higher standard.5 A prima f acie case is made "by showing that the totality of relevant facts gives rise to an inference of discriminatory purpose", without the need to show either a "strong likelihood" or that it is "more likely than not" the other party's peremptory challenges were based on impermissible group bias. Johnson, 545 U.S. at 168-69, 164. Jury selection for Cha's trial began June 11, 2003, with the court's general voir dire followed by questions from counsel for each side, and resumed June 12, 2003. (CT 236; SRT 1, 132.) The prosecutor and defense counsel each exercised five peremptory challenges. The prosecutor's first was to strike Jerry Hernandez (SRT 67), and his fourth was to strike Ramiro Garcia (SRT 112). There is no dispute Cha belongs to a group of persons of Asian ancestry cognizable for Batson analysis purposes. Mr. Hernandez and Mr. Garcia are Hispanics, another cognizable group. After the jury and two alternates were sworn (SRT 156, 161-162, 167), Cha's counsel made his Wheeler motion: THE COURT: . . . Mr. Sok, you approached the court in chambers and said you wished to orally argue a Wheeler motion; is that correct? MR. SOK: Yes, Your Honor. Thank you.

24 THE COURT: And what is the basis of your Wheeler motion? 25 26 27 28
"California's 'more likely than not' standard is at odds with the prima facie inquiry mandated by Batson." Johnson, 545 U.S. at 173, 168 (deciding the "the scope of the first of [the] three steps this Court enumerated in Batson, which together guide trial courts' constitutional review of peremptory strikes").
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MR. SOK: Yes, Your Honor. I believe that yesterday the prosecution has dismissed on peremptory challenge, Mr. Hernandez and Mr. Garcia.

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When I voir -- during the voir dire I didn't see anything they said that they were -- that they were prejudiced to one party or the other and show disqualification, and they are a recognized group in the [sic] Spanish males, both of them are Spanish males, and based on that, Your Honor, I make my Wheeler motion, and I believe and to [sic] wish to get a new jury panel. [¶] Thank you. THE COURT: Well, Mr. Sok, I see absolutely no basis for recognizing a Wheeler motion in that there are two Hispanics left on the panel -- I mean, in the jury box and there are a number left on the panel, and I also might point out that you -- that there's nothing that they said that would detect any bias against your client . . . .

In support of the motion, counsel advanced only his own perception the excused jurors showed 9 no "prejudice[] to one party or the other" nor "show[ed] disqualification," accompanied by an allusion 10 to their race. He identified no fact or circumstance suggesting the prosecutor was motivated by racially 11 discriminatory bias in excusing them. It is presumed peremptory challenges are exercised in a 12 constitutional manner, and the racial or ethnic characteristics of prospective jurors, standing alone, 13 does not prevent their exclusion. People v. Alvarez, 14 Cal.4th 155, 193 (1996), citing Wheeler, 22 14 Cal.3d at 278 and Batson, 476 U.S. at 89-98. The prosecutor has no obligation to articulate any reason 15 before exercising a peremptory challenge unless and until the opposing party makes a prima facie 16 showing of discriminatory motivation. See CAL. CODE CIV. P. § 226(b). Cha's trial court determined 17 he failed to carry his burden at step one and denied the motion, terminating the inquiry. 18 The Court of Appeal affirmed that result citing only Wheeler, in an opinion issued before the 19 United States Supreme Court in Johnson, 545 U.S. 162 established the Batson "reasonable inference" 20 standard, rather than the Wheeler "strong likelihood" standard, is the appropriate test at step one. 21 Nevertheless, the Court of Appeal used both the "reasonable inference" language from the Batson's 22 23 24 25 26 27 28
Quoting People v. Griffin, 33 Cal.4th 536, 554-55 (2004), the Court of Appeal stated: " 'Under Wheeler , there is a presumption that a prosecutor who employs a peremptory challenge against a prospective juror who is a member of a cognizable group does so for a purpose other than to discriminate. . . . If a defendant believes that the prosecutor is using a peremptory challenge for a discriminatory purpose, the defendant "must raise the point in a timely fashion." . . . At the threshold, the defendant must establish a "prima facie case of [purposeful] discrimination." . . . "First, ... [the defendant] should make as complete a record of the circumstances as is feasible." . . . "Second, [the defendant] must establish that the persons excluded are members of a cognizable group . . . ." . . . "Third, from all the circumstances of the case [the defendant] must show a strong likelihood". . . -- or, stated in other terms, must raise a "reasonable inference" . . . -- "that
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standard and Wheeler's "more likely than not" language in its decision.6 Other California courts had

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equated the state's "strong likelihood" or "more likely than not" standard with the lower federal standard even before Johnson.7 The trial court's determination Cha identified "no basis whatsoever" to sustain a Wheeler objection permits the interpretation that court found he had not even raised an inference of impermissible motivation. Nevertheless, when the state court has used a wrong legal standard, or it is unclear whether it did so, the AEDPA deference federal habeas courts owe state court decisions does not apply. Paulino, 371 F.3d at 1090 (if the state courts may have applied an overlystringent standard at step one, the federal habeas court reviews the Batson claim de novo). The issue under de novo review remains "whether the circumstances of the prosecutor's challenges 'raise an inference' of exclusion based on race [satisfying step one], such that inquiry into the prosecution's motives is required under Batson." Fernandez, 286 F.3d at 1078; Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000); see Paulino, 371 F.3d at 1090 (finding the prosecutor's use of five of his six peremptory challenges to remove five of the six potential black jurors satisfied defendant's prima facie showing of prosecutorial bias). This Court has independently reviewed the 167-page voir dire record (SRT foll. p. 1327) and detects nothing suspect in the conduct of jury selection. Unlike the statistical imbalance evident in Paulino, the trial court noted two other Hispanics remained on Cha's jury after Mr. Ramirez and Mr. Garcia were excused. (SRT 23-24.) Also unlike in Paulino, the trial court did not engage in sua sponte speculation about the prosecutor's potential race-neutral reasons for striking those potential jurors before defense counsel had the opportunity to articulate the basis for his
such persons are being challenged because of their group association rather than because of any specific bias". . . . In order to demonstrate such a "strong likelihood," or raise such a "reasonable inference," the defendant "must show that it is more likely than not the [prosecutor's] peremptory challenges, if unexplained, were based on impermissible group bias" or purposeful discrimination. . . . If the defendant succeeds in establishing a prima facie case of such discrimination, the prosecutor must articulate neutral reasons explaining the peremptory challenges in question. . . . Ultimately, the defendant must prove purposeful discrimination. . . . If the defendant succeeds in proving such discrimination, the trial court must dismiss any jurors thus far selected and sworn, and quash any remaining venire. . . .' " (Lodg. 3, pp. 7-8 (emphasis added.).) The California Supreme Court confirmed in People v. Box, 23 Cal.4th 1153, 1188 n.7 (2000) the state's "strong likelihood" standard was the equivalent of the Batson "reasonable inference" standard. Paulino, 371 F.3d at 1090, n.5. Due to some confusion created by a state appellate court decision overruled in Box, "as we explained in Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir. 2001), we continue to review de novo in pre-Box cases where the state court employed Wheeler's 'strong likelihood' standard." Paulino, 371 F.3d at 1090 (" 'California courts in following the "strong likelihood" language of Wheeler are not applying the correct legal standard for a prima facie case under Batson' "), quoting Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000) (the Wheeler standard "is impermissibly stringent in comparison to the more generous Batson 'inference' test"). Cha's is not a "pre-Box case," so it is likely his Court of Appeal applied the correct standard, equating the Wheeler and the Batson prima facie showing requirements, particularly as it used both terms.
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Wheeler objection.8 Cf. Paulino, 371 F.3d at 1089-90, 1092 (remanding the matter for a hearing to give the state "an opportunity to present evidence as to the prosecutor's race-neutral reasons for the apparently-biased pattern of peremptories," because at step two of the Batson analysis "it does not matter that the prosecutor might have had good reasons to strike the prospective jurors," but rather "[w]hat matters is the real reason they were stricken"). Cha identifies no "facts" or "other relevant circumstances" adequate in the totality of the circumstances to raise an inference racial discrimination motivated the prosecutor to excuse two of four Hispanics from Cha's jury Johnson, 545 U.S. at 170. On this record, the Court is unable to find the trial court erred in terminating the Batson inquiry at step one for Cha's failure make a prima facie showing.9 Accordingly, habeas relief on Ground One of the Petition is DENIED. 2. Ground Two: Gang Enhancement

Cha argues California's gang enhancement statute "as applied, is void for vagueness and is simply unconstitutional," relying on Kolender v. Lawson, 461 U.S. 352, 357 (1983) for the general pr o position "[d]ue process of law requires that criminal statutes be reasonably definite." (Traverse 20:12-13.) The void-for-vagueness doctrine addresses whether: (1) a penal statute defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender, 461 U.S. at 357; see Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 524-25 (1994). Participation in a street gang is criminalized by California's Street Terrorism Enforcement and Prevention Act, which provides, in pertinent part: (a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang,
The Court of Appeal speculated from the voir dire record about potential unobjectionable reasons the prosecutor may have had to excuse Mr. Hernandez and Mr. Garcia. However, such speculation was in support of its finding Cha did not carry his prima facie showing burden, not to substitute possible legitimate reasons for the actual reasons only the prosecutor himself could explain. See also Answer pp. 17-18. This finding disposes of Cha's suggestion an evidentiary hearing should be held "to give the prosecutor a chance to offer a race-neutral explanation . . . so that this District Court may determine whether the prosecutor violated Batson." (Traverse 13:20-27.) His vague contention the "voir dire transcripts show that [the] differences between the struck jurors and other jurors were not significant and that the prosecutor may have engaged in disparate questioning" (Traverse 13:20-22 (emphasis added) is unsupported speculation.
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shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: . . . CA L. PEN. CODE § 186.22 (emphasis added).

8 The statute thus embodies two essential elements: (1) the defendant committed or attempted 9 to commit the crime for the benefit of, at the direction of, or in association with a criminal street gang; 10 and (2) the defendant intended to assist, further, or promote criminal conduct by gang members. CAL. 11 PEN . CODE § 186.22(b)(1); People v. Gardeley, 14 Cal.4th 605, 615-16 (1997); People v. Olguin, 31 12 Cal. App.4th 1355, 1382 (1994). Cha challenges the codified knowledge element as providing 13 inadequate notice "that his alleged conduct was proscribed by statute." (Traverse 20: 13-16.) His void 14 for vagueness argument fails from the face of the statute. By its plain terms, the scienter element is 15 defined as the specific intent to promote, further, or assist gang members when committing a felony 16 offense. CAL. PEN. CODE § 186.22(b)(1). Embodiment of scienter or mens rea requirements in 17 statutory language "alleviate[s] vagueness concerns." Gonzales v. Carhart, 550 U.S. 124, -- , 127 S.Ct. 18 1610, 1628 (2007), citing, inter alia, Posters 'N' Things, 511 U.S. at 526. As found by the Court of 19 Appeal, the statute is sufficiently definite for notice and defines the elements of the crime in a manner 20 that circumscribes prosecutorial discretion. (Lodg. 3, pp. 15-16.) 21 Cha also argues there was insufficient evidence to support the jury's gang findings. California 22 applies the clearly established federal due process standard for sufficiency of evidence reviews. People 23 v. Johnson, 26 Cal.3d 557, 575-78 (1980), citing Jackson v. Virginia, 443 U.S. 30 (1979). The 24 reviewing court's "critical inquiry" is "whether the record could reasonably support a finding of guilt 25 beyond a reasonable doubt" applied "with explicit reference to the substantive elements of the criminal 26 offense" as defined by state law. Jackson, 443 U.S. at 318 (footnote omitted), 324, n. 16. Evidence 27 is sufficient as long as any rational trier of fact could have been persuaded of the defendant's guilt, 28 viewing the result in the light most favorable to the judgment and drawing all reasonable inferences - 14 0 6 cv 1 6 7 2

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from the evidence which support the jury's verdict. Id. at 319. On habeas review, federal courts inquire whether the state court's holding involved an objectively unreasonable application of Jackson. Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 n. 13 (9th Cir. 2005). Cha urges a reading of the statute requiring knowledge of criminal activity other than the crime at issue, arguing: "there was no testimony the gang committed these types of criminal assaults with the intent to further other specific criminal activity of the ORB [Oriental Ruthless Boys] gang." (Traverse 19:27-20:6.) In rejecting this claim, the Court of Appeal first interpreted the code sections: A violation of Penal Code section 186.22, subdivision (a) is a substantive crime. . . . [¶] Defendant was charged with the criminal street gang enhancement. That crime is set forth in Penal Code section 186.22, subdivision (b). . . . [¶] To prove a violation of subdivision (b) the prosecution must prove "that the crime for which the defendant was convicted had been 'committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.' (§ 186.22, subd. (b)(1) and former subd. (c).)[10] (Lodg. 3, pp. 14-15 (emphasis added) (quoting People v. Gardeley 14 Cal.4th 605, 616-617 (1996).)

14 The Court of Appeal found California courts have rejected Cha's interpretation: 15 16 17 18 19 20 21 22 23 24 25 26 27 28
"In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. (§ 186.22, subds. (e) and (f).) ' (People v. Gardeley (1996) 14 Cal.4th 605, 616-617, italics in original)." (Lodg. 3, pp. 14-16(?) (emphasis added).)
10

Defendant's argument was rejected in People v. Gamez (1991) 235 Cal. App. 3d 957 (disapproved on other grounds in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10). The court found that the enhancement does not require that the defendant had knowledge that the gang members had engaged in a pattern of criminal gang activity. Furthermore, the statute contained a sufficient standard of conduct proscribing a defendant's activities and a sufficiently clear standard for police enforcement and the determination of guilt. "In short, an individual who violates subdivision (b) does so at the peril that the history of his gang will reveal the predicate offenses." (People v. Gamez, supra, at p. 976.) We agree with the reasoning of Gamez and reject defendant's request that we not follow it. (Lodg. 3, pp. 14-16 (emphasis added).) Cha relies on a Ninth Circuit panel's different interpretation of the CAL. PEN. CODE § 186.22(b)(1) phrase "any criminal conduct" in support of this claim. In Garcia v. Carey, 395 F.3d

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1099, 1103, 1105 (9th Cir. 2005), the majority affirmed a grant of federal habeas relief on grounds "there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate it furthers some other crime" (emphasis added). (Traverse p. 20.) The Garcia court found the evidence of specific intent was insufficient to support the enhancement, observing it would reach the same result whether it "review[ed] directly under Jackson or whether [it] review[ed] more deferentially the state court's application of Jackson under AEDPA's standard." Garcia, 395 F.3d at 1102. Although the California Supreme Court has not yet addressed the issue, the Ninth Circuit opinion is at odds with certain state appellate courts' construction of the statute, including some expressly disagreeing with the Garcia majority's interpretation.11 See, e.g., People v. Hill, 142 Cal.App. 4th 770, 774 (2006), cert. den. sub nom Hill v. California, -- U.S. --, 128 S.Ct. 191 (2007) (stating the Ninth Circuit misinterpreted California law in Garcia), agreeing with People v. Romero, 140 Cal.App.4th 15, 19 (2006) ("By its plain language, the statute requires a showing of specific intent to promote further or assist in 'any criminal conduct by gang members,' rather than other criminal conduct," finding "evidence [defendant] intended to commit a crime, that he intended to help [another] commit a crime, and that he knew [that other] was a member of his gang" supported "a reasonable inference that [defendant] possessed the specific intent to further [the other's] criminal conduct"). Competing principles thus affect this Court's review of the claim. "A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam); People v. Burnett, 110 Cal.App.4th 868, 882 (2003) (federal authority is not binding in matters involving state law); but see Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1125 (9th Cir. 2008) ("[I]n interpreting state law, [federal reviewing courts] are bound to follow the decisions of the state's highest

In addition, some federal decisions subsequent to Garcia have rejected its interpretation in consideration of the state courts' disagreement. See, e.g., Hill v. Woodford, 2008 WL 5234726 (E.D.Cal. Dec. 16, 2008) *12, *13 n. 14 ("There is no requirement in section 186.22, subdivision (b), that the defendant's intent to assist criminal endeavors by gang members must relate to criminal activity apart from the offense being committed," noting "the Ninth Circuit [in Garcia] appears to be directly at odds with California state appellate courts' interpretation of state law"), citing People v. Martinez, 158 Cal.App.4th 1324, 1332 (2008), People v. Morales, 112 Cal.App.4th 1176, 1179 (2003). The Garcia court was not deciding the "other" criminal conduct interpretation as a contested issue, nor were the California cases cited in the Garcia majority opinion.

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court," and "when the state's highest court has not spoken on an issue, we must determine what result the court would reach if we were standing in its shoes by examining 'state appellate court opinions, statutes and treatises' ") (citation omitted). A recent Ninth Circuit opinion applies the Garcia result in consideration of Gardeley, 14 Cal.4th 605, the only California Supreme Court decision to have addressed CAL. PEN. CODE § 186.22(b) in the sufficiency of evidence context. See Briceno v. Scribner, 2009 WL 426303 (9th Cir. Feb. 23, 2009) ("Briceno") (the majority applying the Jackson standard in consideration of Garcia and Gardeley to hold that admission of a police gang investigator's expert testimony did not violate the defendant's rights to due process and a fair trial,12 but that expert testimony was insufficient to establish the defendant committed the charged robberies with specific intent to benefit a criminal street gang, reversing denial of federal habeas relief). On the sufficiency of evidence issue, the Briceno court emphasized the importance of keeping analytically separate the two elements for a CAL. PEN. CODE § 186.22(b)(1) gang enhancement (i.e., first, the prosecutor must demonstrate the defendant committed a felony "for the benefit of, at the direction of, or in association with [a] criminal street gang," and second, the prosecutor must show that the defendant committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members") inasmuch as " 'mere membership in a criminal street gang' " standing alone is not enough to satisfy the second step. Briceno at *7, citing Garcia, 395 F.3d at 1102-03 & n.5. The court applied the "other criminal activity" interpretation from Garcia to find the state court's analysis "represents an unreasonable application of the Jackson standard. . . , " finding "a total failure of proof of the requisite specific intent." Briceno at *7-8, quoting Garcia, 395 F.3d at 1104 (holding "[w]ithout this evidentiary link, it is unreasonable to conclude that a rational jury could find that Garcia committed this robbery with the specific intent to facilitate other gang

The Briceno court disposed of the admission of opinion testimony challenge by declining to review the state court's application of its own Evidence Code: "[E]vidence erroneously admitted warrants habeas relief only when it results in the denial of a fundamentally fair trial in violation of the right of due process." Briceno at *6, citing Estelle, 502 U.S. at 67-68, 72. That court court found "no cases 'support[ing] the general proposition that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier or fact." Briceno at *6, quoting Moses v. Payne, 543 F.3d 1090, 1105-06 (9th Cir. 2008) (although witnesses are "not permitted to give a direct opinion about the defendant's guilt or innocence, . . . an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact" without violating the Constitution); see Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (the rule permitting opinion testimony on ultimate issues is well established).

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crimes"). In reaching its result, the Briceno majority rejected the state's argument that intervening California Courts of Appeal cases disapproved Garcia's "other criminal activity" interpretation of that portion of the statute, attempting a reconciliation of Garcia with Gardeley on the sufficiency of evidence issue.13 See Briceno at * 8-10. "Our task is therefore to determine whether, after Romero and Hill, there remain convincing reasons to believe that the California Supreme Court would hold the sentencing enhancements available under § 186.22(b) inapplicable to Briceno's case." Id. at * 9. The Briceno dissent disagreed with the majority's interpretation of Gardeley and its reliance on Garcia, among other things.14 Nevertheless, the majority ultimately decided the matter on the particular evidentiary

"Although we are ordinarily bound by a state's highest court's interpretation of its own statute, see Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), none of the post-Garcia cases cited by the State were decided by the California Supreme Court, which has yet to address this issue. This panel would therefore normally be bound by the prior panel's decision in Garcia, which expressly rejected the same interpretation of § 186.22(b) advanced by the State in this case. The State argues, however, that intervening case law in the lower state courts, i.e., Romero and Hill, has cast doubt on Garcia. 'In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state unless there is convincing evidence that the highest court of the state would decide differently.' Owen ex rel. Owen v. United States, 713 F.2d 1461, 1464 (9th Cir.1983) (internal quotation marks omitted); see also In re Watts, 298 F.3d 1077, 1082-83 (9th Cir.2002)." Briceno at * 9. The dissent criticizes the majority as "[r]elying on an erroneous interpretation of" Gardeley, 14 Cal.4th 605, "the one California Supreme Court pronouncement on gang enhancements," resulting in an erroneous conclusion "the California Supreme Court would decide the specific intent question differently from the Court of Appeal." Briceno at *13 (Wardlaw, J. concurring in part and dissenting in part). "Gardeley stands for the proposition that the statute 'does not criminalize mere gang membership," but it "does not support the contention that the majority purports to make ­ that the [California] Supreme Court would hold that the commission of a crime with another gang member is insufficient to establish specific intent to 'assist in any criminal conduct by gang members.'" Id. The dissent also finds "inappropriate" the majority's holding that "the California Court of Appeal's analysis runs afoul of this court's decision in Garcia" (Id. at *8), because "[t]he California state court was not bound by Garcia in its interpretation of section 186.22(b); nor may we analyze the state court's opinion for compliance therewith. We review the state court's decision only to determine whether it reasonably applied 'clearly established Federal law,' defined as 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.' " Id. at *15, quoting Lockyer, 538 U.S. at 71-72. "Clearly, Garcia does not fit that definition," and the "applicable federal law is the Jackson standard [only], and there is no indication that the state court unreasonably held that a rational tier of fact could have found the gang enhancement true beyond a reasonable doubt. Our reasoning in Garcia, then, is only persuasive authority that should be rejected when, as here, it is contrary to the state's own interpretation of its statute." Id., citing Dimidowich, 803 F.2d at 1482. The dissent also notes "California courts could not have indicated more clearly that our interpretation of section 186.22(b) was incorrect," as "Garcia has been explicitly disapproved in two subsequent California Court Appeal decision." Id., citing Romero, 43 Cal.Rptr.3d at 865, Hill, 47 Cal.Rptr.3d at 877. Finally, the dissent observes "Garcia is not directly applicable because Garcia did not address the situation here: two gang members committing a crime together." Id. at *16. Lastly, the dissent faults the majority for "completely ignor[ing]" precedent for the proposition "when the California Supreme Court denies a petition for hearing without citation or comment, it will be assumed that the state supreme court has been given a fair opportunity to review the merits of the petitioner's claim." Id at *14, n. 6.
14

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deficiencies in that case to hold the state appellate court's conclusion represented an unreasonable application of the Jackson standard, granting habeas relief on that claim.15 Briceno at *11. Irrespective of which construction ultimately is adopted by the California Supreme Court on this point, the Briceno result was predicated on the lack of adequate direct or circumstantial evidence to support the gang enhancement. Id. at *10 ("Thus, even if we were to defer to the state courts' post-Garcia interpretation of § 186.22(b), it is not at all clear that a gang enhancement could be sustained in this case"). This Court takes the legal principles from the Briceno majority as binding here, but finds the factual distinctions between that case and this do not mandate an insufficiency of the evidence result in Cha's favor. The types of evidence the Gardeley court found adequate to sustain a gang

enhancement on the intent element, and which the Briceno court found lacking in the record before it, included such indicia as the involvement of more than one gang member, the public nature of the crime, and expert opinion the location of the crimes was consistent with intimidation of others to dissuade them from reporting the crimes or some similar motivation. Gardeley, 14 Cal.4th at 722. The expert's testimony in Briceno "dealt almost exclusively in hypothethicals," so his testimony did not "nor could it" establish the defendant's specific intent in committing the robberies. Briceno at *8. "Even when asked whether he had 'an opinion as to whether or not [the robberies] . . . were committed . . . with intent to promote, further and assist criminal conduct by members of the Hard Times gang," the expert "did not provide such an opinion," responding instead in "generalities," stating such crimes "glorif[ied] the gang and increased the status of the offenders." Id. Although the majority acknowledged that testimony "might have helped to establish the first element of the gang enhancement, i.e., that the crime ultimately benefitted the gang in some way, it found such testimony "says nothing about Briceno's specific intent in committing the robberies." Id. at * 9-10.

The dissent disagreed "that the state court unreasonably interpreted its own law in finding that the gang enhancement was supported by sufficient evidence," because when "there is no controlling 'pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state[,] unless there is convincing evidence that the highest court of the state would decide differently." Briceno at *12, quoting Owen, 713 F.2d at 1464). "[U]nder the reasoning in Morales, [People v.] Villalobos, [145 Cal.App.4th 310, 51 Cal.Rptr.3d 678, 687 (2007)], and Romero, [Briceno's co-defendant]'s crimes qualify as 'any criminal conduct by gang members,' and Briceno's purposeful assistance to [his co-defendant] in this criminal conduct qualifies as 'specific intent to . . . assist' in that criminal conduct." Briceno at *12 ( contending the reasoning in the cited cases "controls our decision because there is no 'convincing evidence that the highest court of the state would decide differently' "). Id. (citation omitted).

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The primary evidence supporting the gang enhancement in Cha's case was also expert testimony, from Fresno County Sheriff's Detective Scott Moore. (RT 346-391.) See People v. Ferraez, 112 Cal.App.4th 925, 930-31 (2003) (California law permits juries to rely on expert testimony about gang culture and habits to prove specific intent to assist, further, or promote criminal conduct by gang members when reaching a verdict on a gang-related offense or a gang allegation). However, Detective Moore's testimony contains the type of evidence the Gardeley court identified as probative on the intent issue. The Briceno court reached its result based on the absence of evidence of gang activity indicia associated with the robberies: they were not committed in the defendant's gang's territory or the "turf" of a rival gang, neither Briceno nor his co-defendant made their gang membership known at the time, and there was no evidence from which to infer a connection between the gang and the purpose of the robberies (represented to be for the purpose of stealing money to Christmas shop). In contrast, the evidence in Cha's case substantiated the crimes were committed at an Asian festival, targeted Asian victims in a location where rival Asian gangs were likely present, the ORB gang announced its presence during the shootings, and there was evidence of two shooters acting in concert in furtherance of the criminal activity. Cha has the letters "ORB" tattooed across his back and "Ruthless" tattooed on his forearm, and it was Detective Moore's opinion Cha was an active ORB gang member when he committed the crimes. (RT 364-65.) In addition, Detective Moore described an ongoing rivalry between Cha's ORB and the Asian Crips criminal street gangs. (RT 337-357.) He opined the crimes were committed for the benefit of the ORB gang because during the shooting, a gang member yelled out "ORB," a common practice to display gang pride and to let others know who committed the crime. (RT 366-367.) He testified gangs benefit from such assaults because those incidents increase a reputation for toughness and violence and augment a gang's power of intimidation over others, facilitating the commission of other crimes. (RT 367-368.) He testified the ORB gang had been involved in felony assaults, terrorist threats, assault weapon possession, robbery, burglary, drug activity, and murder. (RT 359-360.) His testimony

established two specific predicate offenses by the ORB gang supported by certified copies of abstracts of judgment, qualifying as evidence of ongoing criminal activity. (RT 360-365.) The California Supreme Court sanctions such expert testimony and documentary evidence of criminal activity to prove - 20 -

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gang allegations. See, e.g., Gardeley, 14 Cal.4th at 617-20, 605; Hill, 142 Cal.App.4th 770. "Federal habeas courts do not review questions of state evidentiary law." Estelle, 502 U.S. at 67-68. For all the foregoing reasons, this Court finds the result is not contrary to nor an unreasonable application of Jackson. Sufficient evidence was presented to convince a rational trier of fact Cha acted with the specific intent to further, benefit, or promote criminal gang activity in his commission of the crimes. Accordingly, federal habeas relief on this theory is DENIED. 3. Ground Three: Verdict Coercion

Cha argues the combination of the trial court's supplemental instructions, its refusal to instruct the jurors they did not have to reach a verdict, and one juror's deliberation time constraints coerced the jury into reaching verdicts, in violation of his Fifth and Sixth Amendment rights to due process and a fair trial. He acknowledges: "Obviously, there are no per se rules rooted in the United States Constitution that would require the reversal of a conviction where a trial court polled a jury, gave a supplemental instruction, or commented upon the projected length of jury deliberations." (Traverse 26:19-22.) He further acknowledges the Supreme Court in Early v. Packer, 537 U.S. 3, 10 (2002) held the cases he cites for "illustrative purposes" (i.e., Jenkins v. United States, 380 U.S. 445 (1965) and United States v. United States Gypsum Co., 438 U.S. 422 (1978)) are "not relevant to the §2254(d)(1) determination since neither case sets forth a rule applicable to state court proceedings." (Traverse 27:11-17). He nevertheless summarily insists the "opinion of the California Court of Appeal was not only incorrect and erroneous" in its determination no jury coercion occurred, but also "it was 'objectively unreasonable,' in light of the facts presented in the trial court." (Traverse 27:18-20.) The Court of Appeal quoted the pertinent portions of the record, then rejected the claim on the merits.16 (Lodg. 3, pp. 19-20.) It found nothing inappropriate or coercive in the trial court's remarks

Neither side contests the accuracy of the Court of Appeal's thorough summary: "The jury began deliberations at 4:10 p.m. on June 17, 2003. Shortly thereafter the juror foreperson sent three notes to the court. The first note stated that a juror needed to be excused on Thursday, June 19, due to vacation plans. The second request was for a readback of the testimony of Koung Vang describing his location at the time of the shooting and his location when he saw the shooter. The jury also requested a review of Patton's testimony of the radio call regarding the shooter. The jurors were advised that their requests would be addressed in the morning. [¶] The jury returned the next morning and began deliberations while the court discussed the jury's requests. The court reporter went into the jury room to read back testimony. The reporter concluded this at 10:00 a.m. That afternoon the jury sent out two questions. First, the jurors asked for an 'explanation of great bodily injury & intent.' They also asked if they could 'convict of one count of the counts 1 through 8.' [¶] The court and counsel

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in response to the jurors' note they could not reach a verdict, nor in the supplemental charge, citing People v. Moore (2002) 96 Cal.App.4th 1105. Next, it found no error in the rejection of an instruction stating there is nothing illegal about a hung jury, citing People v. Gurule, 28 Cal.4th 557, 660 (2002) ("such an instruction could have improperly diminished the jury's duty to deliberate and reach a verdict if possible"). Finally, it found "nothing coercive in the fact that one of the jurors stated she would have to leave by noon on June 19th," because the trial court did not pressure the jury to reach a verdict before then and was prepared to substitute an alternate juror if need be. (Lodg. 3, pp. 19-22.) Both sides acknowledge Lowenfield v. Phelps, 484 U.S. 231 (1988) supplies the clearly established federal law applicable to claims of jury coercion. Only a jury instruction that deprives a defendant of due process is deemed unconstitutionally coercive. Id. at 241. "The use of a supplemental
discussed the questions and also discussed the note from the juror who said she needed to be excused the next day. The court determined that it would check with the jury at 4:30 p.m. to determine what to do about the juror who said she had to leave. The jurors were brought into the courtroom. The juror who asked to be dismissed said she would be able to deliberate the next day until about noon. The court told