Ruiz v. Gipson

Filing 22

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DENIED With Prejudice on the Merits signed by Magistrate Judge Jennifer L. Thurston on 3/19/2017. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS RUIZ,

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No. 1:14-cv-00224-LJO-JLT (HC)
Petitioner,

v.
CONNIE GIPSON, Warden,

FINDINGS AND RECOMMENDATION
TO DENY PETITION FOR WRIT OF
HABEAS CORPUS
[TWENTY-ONE DAY OBJECTION
DEADLINE]

Respondent.

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Petitioner is currently serving a life term in state prison for convictions for robbery,

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carjacking and criminal street gang activity. In this action, Petitioner claims: 1) The conviction

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for criminal street gang activity is unsupported by sufficient evidence; 2) The trial court abused

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its discretion in denying motions to bifurcate the trial on the gang issues; 3) The trial court erred

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by allowing the use of case- and defendant-specific hypotheticals; 4) The trial court erred in

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defining the immediate presence element of carjacking, as distinct from robbery; 5) The trial

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court erred in failing to define the technical terminology: “in association with a criminal street

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gang”; 6) The instructions on gang evidence and enhancements were erroneous; 7) The trial court

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erred in instructing the jury with CALCRIM No. 373; 8) The trial court erred in instructing the

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jury with CALCRIM No. 376; 9) The trial court erred in denying Petitioner’s motion to dismiss

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the case based on statutory speedy trial violations; 10) The cumulative effect of the errors denied

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Petitioner of a fair trial; and 11) The trial court erred in calculating Petitioner’s presentence
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credits. As discussed below, the Court finds no merit to the claims and recommends the petition

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be DENIED.

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I.

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PROCEDURAL HISTORY
Petitioner was convicted in the Kern County Superior Court on August 10, 2010, of

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carjacking (Cal. Penal Code § 215), robbery (Cal. Penal Code § 212.5(c)), and street terrorism

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(Cal. Penal Code § 186.22(a)). People v. Ruiz, 2012 WL 4076669, *1 (Cal. Ct. App. 2012). The

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jury also found true enhancements that Petitioner personally used a firearm in the commission of

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the offenses. Id. He was sentenced to a term of 13 years plus 15 years-to-life. Id.
Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth

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DCA”). The Fifth DCA affirmed the judgment on September 17, 2012. Id. Petitioner then filed

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a petition for review in the California Supreme Court. The petition was summarily denied on

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December 19, 2012. (Pet. at 2.)

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On February 20, 2014, Petitioner filed a petition for writ of habeas corpus in this Court.

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(Doc. No. 1). Because two of the claims in the petition remained unexhausted, Petitioner

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requested a stay of the proceedings. (Doc. No. 2.) The Court dismissed the two claims (12 and

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13) from the petition and granted the stay. (Doc. No. 5.) Petitioner thereafter failed to timely file

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status reports, and because of this the Court lifted the stay and directed Respondent to file a

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response. (Doc. No. 17.) Respondent filed a perfunctory answer on June 14, 2016. (Doc. No.

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20). Petitioner did not file a traverse.

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II.

FACTUAL BACKGROUND

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The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision1:

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Defendant and Harris get a ride

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Ashli Winters and Patrick Harris were close friends. Winters testified that on
March 4, 2009, sometime between 2:30 p.m. and 2:36 p.m., Winters dropped off
Harris and defendant, who was his friend, in the area of Wilkins Street, near
Kincaid and South Kings Streets in Bakersfield. [N.3] This location was a few
blocks from Key Barber Shop. Defendant and Harris got out of Winters's car
together. They were both wearing black clothes. Defendant wore a black “hoodie.”

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The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).
Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir.
2009).

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Harris wore a black sweater or zipped-up sweatshirt with a hood. After Winters
dropped them off, she drove away from the area and went to a friend's house.

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[N.3] Winters testified at both the preliminary hearing and trial under a
grant of immunity.

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Key Barber Shop

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Also on March 4, 2009, Robert Key was working at Key Barber Shop located on
East Brundage Lane in Bakersfield. Key had owned and operated his barbershop
since 1965, and he had never been robbed. He described his shop as a
neighborhood place where people often gathered to visit.

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Around 2:30 p.m., Key was cutting the hair of Mackinley Mosley, an investigator
for the district attorney's office. Mosley was armed with his service weapon, a .40–
caliber Glock handgun, which was in a waistband holster. Mosley had driven his
county-issued white Dodge Charger to the barbershop, and parked it behind the
business.

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There were two other people in the barbershop: Joe McClary, Key's brother-inlaw, and Aaron Williams, a retired sergeant from the Los Angeles County Sheriff's
Department. Williams still carried law enforcement identification.

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The barbershop robberies
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As Robert Key cut Mosley's hair, two masked men abruptly entered the
barbershop. One man held up a gun, said it was a “‘robbery’” or a “‘stick up,’” and
ordered everyone to get on the floor. One man was taller than the other. The taller
man displayed the gun and gave the orders. He was dressed in grey and black with
a hood that covered his head and part of his face. He also wore a mask which
covered his face from the eyes down. The shorter man wore a hooded sweatshirt
and was completely cloaked in dark clothing with a ski mask over his face, but his
eyes were visible. Williams testified the men seemed to be wearing oversized
clothing to disguise their appearances.

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Key and his three customers did not immediately react because they did not realize
what was going on. The taller man pointed the gun at Williams and Mosley, and
again told everyone to get down. The taller man grabbed McClary and pushed him
to the floor. Williams hesitated and the smaller man repeatedly ordered him to get
down. McClary urged Williams to get down. Williams and the other men finally
complied.
The taller man ordered everyone to throw their wallets on the floor. One of the
suspects picked up the wallets from the floor. Key testified that one of the masked
men took $40 or $50 from his cash box. The taller man reached into Key's pocket
and took his wallet.

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As Mosley got out of the barber chair and onto the floor, the smaller suspect
realized Mosley was armed with a weapon and said, “ ‘Oh, he's got a gun, too.’ ”
The smaller man removed Mosley's service weapon from his waistband. The
smaller man thought he was taking Mosley's wallet, but he actually took Mosley's
black “flat badge” identification. He told Mosley to remove his jewelry and
Mosley complied.

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The taller man noticed that McClary was also wearing jewelry and told him to take

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off the pieces. McClary removed his Movado single-diamond, blackface watch; a
gold-nugget/diamond ring; and a gold chain bracelet. McClary had trouble
removing a diamond pinky ring from his finger. The taller man pointed his gun at
McClary, repeatedly told him not to move, and threatened to “pop” him if he did
not hurry and take off the ring. The taller man held the gun at the back of
McClary's head and searched his back pocket. McClary was finally able to remove
the ring. He placed the jewelry on the floor, and the taller man picked up the
pieces.

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McClary described the gunman's weapon as a black or dark grey semiautomatic
handgun. McClary testified the taller man had a loose bullet in his hand. He
dropped it on the floor, by McClary's face, and then picked it up.

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The smaller man removed Williams's wallet from his rear pants pocket and took
Williams's gold/diamond ring.

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The Dodge Charger

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After the two suspects had taken money and jewelry from the victims, the taller
man yelled out and asked who was driving the Dodge Charger. Mosley responded
that the car belonged to him. The taller man said, “‘Give me the keys.’” Mosley
threw his keys on the floor. One of the suspects retrieved the keys.

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McClary testified that as the two suspects left the barbershop, the taller man said,
“‘If anyone stick[s] their head out of the door, we're going to come back and kill
everybody.’” The two suspects walked out, and McClary heard a car start and
quickly accelerate away from the area.

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Defendant and Harris arrive at the apartment

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Terrance Ellis's godmother lived in an apartment on Feliz Drive in Bakersfield.
[N.4] Ellis testified that defendant used to visit the apartment and play dominoes
with him. Ellis, who was 16 years old, knew defendant as “A–Loc” or “Baby A–
Loc.” Ellis knew Patrick Harris as “No Sense.” Ellis testified that both defendant
and Harris ran with the East Side Crips (ESC).

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[N.4] At trial, various witnesses pronounced this area as either “Felix” or
“Feliz” Street or Drive. According to the People, the correct identification
is Feliz Drive.
Ellis testified that defendant and Harris arrived at his godmother's apartment on a
particular afternoon. [N.5] Defendant and Harris had a bag and some wallets. They
told Ellis to get rid of the bag. Ellis refused because he did not want to touch the
bag. One of the men had a gun under his shirt. At trial, Ellis could not recall which
man was armed, but he previously stated that defendant had the gun. Defendant
and Harris changed clothes and took off their black shirts.

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[N.5] Ellis identified defendant and Harris through separate photographic
lineups. He also explained that Harris had a very distinctive tattoo of a
dollar sign or something similar over both eyes.

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Ellis testified that Harris made a telephone call from the apartment and asked
someone for a ride. After defendant and Harris had been at the apartment for about
10 minutes, they left and were picked up in a vehicle.

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Winters picks up defendant and Harris

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Ashli Winters testified that later in the afternoon, after she had dropped off
defendant and Harris, Harris called her and again asked for a ride. Winters drove
to Feliz Drive and picked up both defendant and Harris. Harris told her to drive
them to a location on Miller Street.

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During the drive, Harris produced a sandwich bag from his pants pocket. The bag
was full of jewelry, including a gold or silver watch with a black face, a gold
“nugget” ring, and a ring resembling a flower.

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Winters testified that defendant and Harris discussed the jewelry, and defendant
said something like, “[W]e can't take it to a pawn shop, 'cause they're gonna notice
it.” (RT 348) Defendant also said, “That was a cop.” Winters did not know what
defendant meant.
When Winters arrived at the Miller Street location, defendant and Harris got out of
her car and then got into another vehicle. Winters could not see who was in the
other car. Winters noticed that Harris was not wearing his black sweatshirt from
earlier in the day. [N.6]

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[N.6] At trial, Winters extensively testified about why she cooperated with
the police. Winters heard on television that she was considered a suspect in
the barbershop robbery. Winters went to the police to clear her name.
Winters conceded that she initially told the police that she never saw
Harris. Winters testified she eventually decided to fully cooperate after the
police threatened to take her child away.

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The initial dispatch

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In the meantime, Mosley called 911 immediately after the two robbery suspects
left the barbershop. At approximately 2:37 p.m., the Bakersfield Police
Department sent out the first dispatch about the armed robbery, that the suspects
fled the scene in a white Dodge Charger, and they had taken a firearm.

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At 2:51 p.m., a police officer found Mosley's stolen Dodge Charger near the 800
block of McNew Court. It was parked at the very end of an apartment complex's
parking lot. No one was in or around the vehicle. The stolen car was found about
one-half mile from the barbershop. It would have taken about one or two minutes
for someone to drive there from the barbershop. A black knit cap was under the
driver's seat.
At 2:53 p.m., Detectives Dossey and Moore received the dispatch about the
discovery of the stolen car. The detectives drove to that location and received
information that two suspects had run northbound from McNew Court to the next
street, which was Feliz Drive. There was an open walkway that led directly from
McNew Court to Feliz Drive.
At 3:30 p.m., the detectives contacted Victoria Campbell, who was sitting in a car
parked on Feliz Drive, and asked if she had seen anyone running in the area.
Campbell said that she had seen two black males running “‘through here.’”
Campbell gestured toward the sidewalk between McNew Court and Feliz Drive.
Campbell thought the men looked like black adults and believed they were
wearing hooded sweaters. Campbell said the two suspects ran in the direction of
the apartment building located at 900 Feliz Drive, directly across the street from
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her residence. The apartment building was about a mile and one-half from the
barbershop.

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Search of the Feliz Drive apartment
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Detectives Moore and Dossey went to apartment A at 900 Feliz Drive. There were
two females, two males, and children inside. The detectives conducted limited
protective sweeps for the suspects and weapons. Dossey conducted a protective
sweep of the bedroom area and did not find anything.
Detective Moore conducted a protective sweep of the kitchen and laundry room.
He opened the dryer door because he had experienced previous searches where
suspects had hidden inside the machines. Inside the dryer, he found two darkcolored, hooded sweatshirts which were wet. One sweatshirt had multi-colored
stitching.
Moore also found a white plastic shopping bag on top of the washing machine. He
opened the bag to determine if the stolen gun was inside. He did not find a gun, but
discovered a sheriff's badge, a wallet, a Dodge car key, a handcuff key, and credit
cards.

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The apartment was subsequently searched pursuant to a warrant, and the officers
seized a black-striped, knit ski cap and a pair of black gloves. The white plastic
bag contained Key's wallet, Williams's wallet, a deputy sheriff's badge, credit
cards, Mosley's wallet and flat badge wallet, binoculars taken from Mosley's car,
and Mosley's sunglasses and reading glasses.

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Interview with Ashli Winters
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On March 5, 2009, Detectives Findley and Miller interviewed Ashli Winters at the
police department. Findley testified they never shouted at or threatened her. At the
beginning of the interview, Winters said she had seen a news report about the
barbershop robbery on television, and she knew the police were looking for her.
However, Winters told the detectives that she had been at a friend's house the
entire day. Detective Miller told Winters that they believed she was holding back
information from the police, she was considered a suspect, and she was believed to
have harbored and aided the suspects' escape. Miller told Winters that she could go
to jail for that offense, and she could lose custody of her children. Winters became
upset, but she was reluctant to get involved and did not want to testify. She
indicated that she had a close relationship with Harris.

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Detective Findley testified the police had released the names of Patrick Harris and
“Carlos Cruz,” later corrected to “Carlos Ruiz,” to the media as possible suspects.
However, the detectives never gave Winters any information about the suspects'
nicknames or the type of property stolen, and this information had not been
released to the media. During the interview with Winters, she mentioned “No
Sense” and “A–Loc.” She described Harris's hooded sweatshirt. Winters told the
detectives that she dropped off defendant and Harris a couple of blocks away from
the barbershop, and she told them about the conversation between the two suspects
when she later picked them up. Winters revealed the time and location where she
picked up the two suspects later that afternoon. Winters volunteered that she knew
jewelry had been stolen during the robbery and gave detailed descriptions of some
of the pieces.

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The black wool cap found under the driver's seat of the stolen car was

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subsequently analyzed by a criminalist, who determined that it contained the DNA
of at least three people: one major DNA contributor and two minor DNA
contributors. The criminalist determined defendant was a major contributor to the
DNA profile on the cap. The other contributors were not determined. DNA tests
were inconclusive as to whether Harris was a contributor. There was a possibility
that a female could be a minor contributor.

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In April 2009, a few weeks after the robbery, Mosley's handgun was found during
a traffic stop of an unrelated vehicle. A male and female were in the car, and the
female had some relation to a gang.

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TESTIMONY OF THE GANG EXPERT
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Bakersfield Police Officer Josh Finney testified as the prosecution's gang expert.
He had been with the police department for six years and worked in the gang unit
for three and one-half years. He focused most of his attention on the ESC, and had
been involved in hundreds of arrests and contacts involving members of the ESC.
He had testified as a gang expert more than 10 times and over half of those cases
involved the ESC.

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The East Side Crips

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Finney testified the ESC was a criminal street gang in Bakersfield and had
hundreds of members. The ESC claimed royal blue and used the letters “E–S–C”
as identifying marks. Finney explained that within the ESC, there were subsets
based on streets or geographic areas within the traditional boundaries of the ESC.
The ESC was “like an umbrella with several groups underneath it.” The 11th
Street Project Crips, Stroller Boy Crips, and Lakeview Gangster Crips were
subsets of the ESC.

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Finney explained that the ESC's traditional territory included Key Barbershop,
McNew Court, and the apartment building at 900 Feliz Drive, where the robbery
proceeds were found. Winters had dropped off defendant and Harris at Miller
Street, which was near the border of ESC territory. Feliz Drive was heavily
frequented by members of the ESC. There had been shootings at that location, and
officers had made “countless arrests” there for narcotics and firearms offenses.
The hand sign for the Stroller Boy Crips was an upside down “F,” representing
Feliz.

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The 11th Street Project Crips claimed the housing area along East California and
East 10th and 11th Streets. That subset used the numbers 11 or 1100 “P–J–C” as
identifying marks, and “900” representing the 900 block of Feliz Drive.

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Finney testified that based on his investigations, the primary activities of the ESC
included murders, assaults with deadly weapons, assaults, robberies, carjackings,
and narcotics possession and sales.

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Predicate offenses
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Finney testified he was familiar with two predicate offenses involving members of
the ESC. On May 7, 2006, Meko Seward, a Country Boy Crip, was shot and killed
by Anthony Taylor, a member of the ESC, after they had an altercation. Taylor
was convicted of murder and attempted murder with gang enhancements and
sentenced to life without parole plus 25 years.

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Finney testified that on July 11, 2005, Jimmy Gray, an ESC, entered Jalisco
Jewelers with three other members of the ESC. They committed an armed robbery
and took $13,000. Gray pleaded guilty to robbery with gang enhancements and
was sentenced to 16 years.

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Patrick Harris
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Officer Finney testified to his opinion that at the time of the barbershop robbery,
Patrick Harris was associated with the ESC and the 11th Street Project Crips.
Harris's gang moniker was “Lil No Sense.” On May 2, 2008, Finney arrested
Harris on a warrant. Harris identified himself as an ESC and said he was from the
projects. Harris had the number “1” tattooed under each eye, signifying the 11th
Street Project Crips. He had other tattoos on his body indicating membership in the
ESC.

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Defendant
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Finney also testified to his opinion that defendant was an active member of the
ESC at the time of the barbershop robbery. Defendant had numerous contacts with
the police while with other members of the ESC; he previously admitted to being a
member of the ESC; he had distinctive gang tattoos; an older member of the ESC
identified defendant as a member; and defendant called other gang members from
jail.
Defendant appeared to be Hispanic. Finney explained that while most members of
the ESC were African–American, the gang also had members who were Hispanic,
Asian, or Caucasian.
Finney testified about numerous contacts between defendant and the officers from
the gang unit, which occurred from 2005 to 2008, where defendant was found
either in residences or in the presence of other members of the ESC.
On October 29, 2008, Finney and his partner encountered defendant with other
known members of the ESC. Defendant admitted to being an active member of the
ESC. Defendant said his moniker was “Lil A–Loc,” and that he received his
moniker from Adam “A–Loc” Maya, because both defendant and Maya were
Hispanic members of the ESC.
Finney testified defendant also said, “‘Hell, yeah, I'm East Side.’” Defendant was
“very open and sounded proud when saying he was an active member” of the ESC.
Defendant said he did not grow up within the gang's traditional boundaries, but he
went to school with other members of the ESC. Defendant said he was never
jumped into the gang, but he just started to hang around with them. Defendant also
admitted he was from the 11th Street projects.

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In November 2008, Finney and other gang officers were serving an arrest warrant
at the residence of another known member of the ESC. Defendant was present
with other members of the ESC. Tierre Hester, Sr., an older member of the ESC
was also present, and said that everyone at the house was a member of the ESC.
Finney testified that defendant lived nearly five miles outside the gang's traditional
boundaries, but he was regularly contacted within the ESC boundaries, and with
ESC members, which showed that he went out of his way to associate with the
ESC.

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Defendant's tattoos included an “E” on his left calf and an “S” on his right calf. He
also had a cross with “RIP” and “A Loc” on his left arm, referring to Adam Maya,
who had died. Defendant had admitted his gang moniker was “Lil A–Loc,” which
was derived from Maya's nickname. Finney explained that adopting a dead gang
member's moniker was something that had to be earned. Maya had been a popular
and respected member of the ESC, and a gang member had to “put in work or
show his devotion to the gang in order to use that nickname.”
Finney further testified that from April 2009 to June 2009, defendant was in the
local jail, and his telephone calls were monitored. During one call, defendant
stated, “East Side Crip 1100.” Finney explained that “1100” was one of the
symbols used by members of the ESC to refer to the 1100 block of the 11th Street
Project Crips. Defendant also said, “East all the time,” which was a greeting used
by ESC members. Defendant said, “Js up,” which referred to the 11th Street
Project Crips, because they wore prominent baseball caps for the Toronto Blue
Jays, with the “J” representing the projects. Defendant also talked about “Crippin,”
which Finney explained meant “just living the Crip life style, being a Crip.”
Hypothetical questions [N.7]
[N.7] As we will explain in issues III, IV, and V, post, defendant contends
the court should have granted his objections to the nature of the
prosecutor's hypothetical questions and Officer Finney's responses.
The prosecutor asked Officer Finney a series of hypothetical questions:
“An armed robbery of a business. Victims inside the business, there are a
few of them, more than two. And two robbers come. They are
completely—they have masks on and are covered up so they cannot be
otherwise identifiable, armed with a firearm. They take money and jewelry
from the victims and keys, take a car, and flee from the site and dump the
car, flee to another site, and then move from that sit or are picked up from
that site and driven out of the area, and are dropped off at a last location, all
of the various locations being with gang territory, and the items being taken
include a gun, money, jewelry, car. [¶] Assuming gang culprits are the
robbers, how would that benefit, it at all, the gang?”

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Defense counsel objected to an improper hypothetical. The court overruled the
objection. Finney responded:
“An armed robbery, as such, would [benefit] the gang in a couple of ways.
The first and most obvious would be the items taken, some type of
monetary gain, the jewelry, money, and firearm taken. The way I'd best
like to describe it is it's not like these guys go back to a hiding spot and
divvy up what they have taken amongst all the members of the gang. It
benefits the gang in a less obvious way, as far as the gun can be passed
around to be used by other members, by these two members receiving
some type of income or some monetary gain, they are able to purpose
vehicles, buy things for other members of the gang—”
Defense counsel again objected as speculation. The court overruled the objection.
Finney continued:
“A good way to describe it is when a kid is growing up, if they don't
receive [an] allowance, they still benefit from their parents having a job.
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Even though they are not directly receiving money, they still benefit from
the parent having a job.”

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The court overruled defense counsel's objection for an improper analogy.
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The prosecutor asked Finney to explain the “trickle-down” effect. Finney testified:
“[T]he trickle-down effect is that, by this one gang member receiving
money and being able to have a place to live or a vehicle, other members
can hang out at their house or stay at their house, drive their vehicle, use
their items. That's the trickle-down effect where they are not dividing a
couple hundred dollars amongst several hundred members. It's the trickledown effect in that the other members of the gang benefit from that
member gaining that money or that jewelry.”

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The court overruled defense counsel's foundational and speculation objections.
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The prosecutor asked Finney about the impact of such a crime on the community.
Finney explained that no one would be afraid of a gang that did not use guns or
weapons. By using a firearm during a robbery and putting everyone on the ground
at gunpoint, “citizens in that area are going to be afraid of this gang, because they
know that they possess firearms, that they are out there using them. And, also,
rival gangs hear of crimes that this gang is committing with the firearms. And that
also affects them.”

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The prosecutor continued with the hypothetical question:
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“Q. Add to the hypothetical ... that the individual robbers do not declare,
during the course of the robbery, a membership in the gang. They do not
identify themselves verbally or otherwise as to the specific gang member.
[¶] Does that militate against it being a gang-related event?
“A. No, absolutely not. There is no need or reason to do it. It's deep within
the traditional boundaries and the stronghold of the East Side Crips. It's a
given that if it's a gang committing this crime, that it's East Side Crips.”
Defense counsel moved to strike for facts not in evidence. The court overruled the
objection.
The prosecutor asked Finney whether his opinion would change if “the individual
perpetrators or suspects are not found in possession of stolen property by a law
enforcement [officer] when they are contacted by law enforcement.” Finney said
no and explained:
“I've witnessed a suspect running from a scene with part of the loss of what
they took, and chased that suspect for a block or two. And when I
eventually caught him, I found they were no longer in possession. And I
could not find what they had taken or where they had thrown it. [¶] So the
fact that there was a month that had passed and the suspects were contacted
or arrested several states [sic ] away had no bearing on the facts—”

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Defense counsel objected for facts not in evidence and prejudice. The court
sustained the objection.

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The prosecutor continued with his hypothetical questions and the following
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exchange ensued:
“Q. As to the last, in reference to almost a month later and suspect
contacted several states [sic ] away, who are you referring to?
“[DEFENSE COUNSEL]: Objection. Relevance. Move to strike.
“THE COURT: Sustained.
“Q. Do you know, with regard to the defendant, when—[¶] And just
answer ‘yes' or ‘no.’ [¶]—[W]hen and where he was arrested?
“[DEFENSE COUNSEL]: Objection. Relevance.
“THE COURT: Overruled.
“[FINNEY]: Yes.

10

“[Q.] Does that have any significance with regard to your testimony in this
regard?

11

“A. Not really.”

12

The prosecutor ended his direct examination questions.

13

Cross-examination of expert

14

On cross-examination, defense counsel elicited testimony from Finney that he did
not know whether defendant knew any of the gang members who had been
convicted in the predicate offenses. Finney admitted that he did not arrest
defendant when he found defendant in the company of other members of the ESC.
Finney also admitted that he did not know whether defendant had been jumped
into the ESC, and that someone could be an “associate” or “wannabe” just by
hanging out with other gang members.

15
16
17
18
19

In response to further defense questions, Finney testified that Jonathan Lee was
Patrick Harris's half-brother, Lee was a member of the ESC, Harris and Lee
committed a robbery/homicide together about six weeks before the robbery of the
barbershop, and defendant was not involved in that offense. [N.8]

20
21
22

[N.8] As we will explain in issue I, post, defendant was initially charged in
a consolidated information which included murder, burglary, and robbery
charges against Harris, Lee, and Landon Reynolds, based on a home
invasion which occurred in April 2009. Defendant was never alleged to
have participated in the home invasion.

23

26

Finney conceded he did not have any personal information as to the application of
the “trickle-down” theory to the ESC from the barbershop robberies, and
acknowledged that the stolen car was abandoned. Finney also conceded that the
jewelry and/or gun taken during the barbershop robbery were not given to other
members of the ESC. However, Finney testified that Mosley's gun was later found
in a vehicle, and the occupants of the vehicle were connected to the ESC.

27

Redirect examination testimony

28

On redirect examination, the prosecutor again asked Finney hypothetical

24
25

11

1

questions. In response, Finney testified that if a gang member committed a robbery
in his own territory, against people who were not in the gang, “there is no need for
him to say, ‘This is such and such gang committing this robbery.’ It doesn't benefit
him in any way.” Finney explained that a gang member would identify himself if
he was involved in a conflict with a person from a rival gang. “But just committing
a robbery of citizens, there is no need for it.”

2
3
4

Finney clarified that Mosley's stolen gun was found on April 7, 2009, during the
traffic stop of a vehicle. A male and female were in the car, and the female had
some relation to a gang. Mosley's stolen car was abandoned in the territory of the
ESC, and the two suspects ran to another location within the traditional boundaries
of the ESC.

5
6
7

DEFENSE EVIDENCE
8
Defendant did not testify.
9
Detective Kennemer testified that about 30 minutes after the barbershop robbery,
he took Mosley to Feliz Drive for a show-up on Alton Gunter and Terrance Ellis,
who had been in the apartment. Mosley could not positively identify anyone.

10
11

Detective Dossey testified that Victoria Campbell described the two running
suspects as African–American males.

12
13

Officer Ryan Williams testified that on April 6, 2009, he conducted a traffic stop
on a vehicle driven by Brandon Jackson, an African–American. Mosley's stolen
gun was found under the driver's seat.

14
15

A criminalist testified that clothing and DNA samples were taken from Terrance
Ellis and Alton Gunter as part of the investigation into the barbershop robbery.
Another criminalist testified that a latent fingerprint for Brandon Jackson was
found on the stolen firearm.

16
17
18

Ruiz, 2012 WL 4076669, at *1–9.

19

III.

DISCUSSION

20

A.

21

Relief by way of a petition for writ of habeas corpus extends to a person in custody

22

pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

23

treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

24

529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

25

guaranteed by the United States Constitution. The challenged conviction arises out of the Kern

26

County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. §

27

2254(a); 28 U.S.C.§ 2241(d).

28

Jurisdiction

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of
12

1

1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

2

enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

3

filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

4

and is therefore governed by its provisions.

5

B.

Legal Standard of Review

6

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

7

the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision

8

that was contrary to, or involved an unreasonable application of, clearly established Federal law, as

9

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

10

based on an unreasonable determination of the facts in light of the evidence presented in the State

11

court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

12

Williams, 529 U.S. at 412-413.

13

A state court decision is “contrary to” clearly established federal law “if it applies a rule

14

that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

15

of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

16

different result.” Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-

17

406 (2000).

18

In Harrington v. Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court

19

explained that an “unreasonable application” of federal law is an objective test that turns on

20

“whether it is possible that fairminded jurists could disagree” that the state court decision meets

21

the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an

22

unreasonable application of federal law is different from an incorrect application of federal

23

law.’” Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a

24

writ of habeas corpus from a federal court “must show that the state court’s ruling on the claim

25

being presented in federal court was so lacking in justification that there was an error well

26

understood and comprehended in existing law beyond any possibility of fairminded

27

disagreement.” Harrington, 131 S.Ct. at 787-788.

28

The second prong pertains to state court decisions based on factual findings. Davis v.
13

1

Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under §

2

2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

3

petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

4

facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

5

U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court’s factual finding is unreasonable

6

when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Id.; see

7

Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543

8

U.S. 1038 (2004).

9

To determine whether habeas relief is available under § 2254(d), the federal court looks to

10

the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

11

Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

12

2004). “[A]lthough we independently review the record, we still defer to the state court’s

13

ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

14

The prejudicial impact of any constitutional error is assessed by asking whether the error

15

had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

16

Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120

17

(2007)(holding that the Brecht standard applies whether or not the state court recognized the error

18

and reviewed it for harmlessness).

19

C.

Review of Claims

20

The instant petition presents the following grounds for relief: 1) The conviction for

21

criminal street gang activity is unsupported by sufficient evidence; 2) The trial court abused its

22

discretion in denying motions to bifurcate the trial on the gang issues; 3) The trial court erred by

23

allowing the use of case- and defendant-specific hypotheticals; 4) The trial court erred in defining

24

the immediate presence element of carjacking, as distinct from robbery; 5) The trial court erred in

25

failing to define the technical terminology: “in association with a criminal street gang”; 6) The

26

instructions on gang evidence and enhancements were erroneous; 7) The trial court erred in

27

instructing the jury with CALCRIM No. 373; 8) The trial court erred in instructing the jury with

28

CALCRIM No. 376; 9) The trial court erred in denying Petitioner’s motion to dismiss the case
14

1

based on statutory speedy trial violations; 10) The cumulative effect of the errors denied

2

Petitioner of a fair trial; and 11) The trial court erred in calculating Petitioner’s presentence

3

credits.

4
5
6

1.

Insufficient Evidence of Criminal Street Gang Activity
a.

State Court Opinion

Petitioner first claims that the evidence was insufficient to support the criminal street gang

7

offense and enhancements. The claim was presented on direct appeal to the Fifth DCA, where it

8

was rejected in a reasoned decision.

9
10

The appellate court rejected the claim as follows:

13

Defendant contends his conviction in count XI for the gang substantive offense
must be reversed (§ 186.22, subd. (a)), and the gang enhancements found true as to
the carjacking and robbery counts must be stricken (§ 186.22, subd. (b)), because
there is insufficient evidence to support these findings. Defendant argues that
evidence of his gang membership was insufficient to support either count XI or the
gang enhancements, and the evidence showed that he could have committed the
offenses for a personal reason.

14

A. Substantial evidence

15

In assessing the sufficiency of the evidence to support a conviction, “we review
the entire record in the light most favorable to the judgment to determine whether
it discloses evidence that is reasonable, credible, and of solid value such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 331; People v.
Kraft (2000) 23 Cal.4th 978, 1053–1054.)

11
12

16
17
18
19
20
21
22
23
24
25
26
27
28

The same substantial evidence standard applies when reviewing a jury's true
finding on gang enhancements. (People v. Albillar (2010) 51 Cal.4th 47, 59–60
(Albillar).)
It is well settled that expert testimony about gang culture and habits is the type of
evidence a jury may rely on to reach a verdict on a gang-related offense or a
finding on a gang allegation. (People v. Hernandez, supra, 33 Cal.4th at pp. 1047–
1048; People v. Valdez, supra, 58 Cal.App.4th at p. 506; People v. Ferraez, supra,
112 Cal.App.4th at p. 930.) “Expert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can be sufficient to
raise the inference that the conduct was ‘committed for the benefit of ... a[ ]
criminal street gang’ within the meaning of section 186.22(b)(1). [Citations.]”
(Albillar, supra, 51 Cal.4th at p. 63.) The credibility and weight of expert
testimony is for the trier of fact to determine. (People v. Mercer (1999) 70
Cal.App.4th 463, 466–467.)
B. The gang substantive offense
15

1
2
3

In count XI, defendant was convicted of the gang substantive offense in violation
of section 186.22, subdivision (a), which states that “[a]ny 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,
shall be punished by imprisonment ....” (§ 186.22, subd. (a), italics added.)

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defendant contends his conviction for the substantive gang offense is not
supported by any substantial evidence that he had the personal intent to benefit the
ESC when he committed the carjacking and robberies in this case. However, these
identical challenges to section 186.22, subdivision (a) were considered and
rejected in Albillar. In that case, three defendants took turns raping the victim
while the others either assisted or stood nearby. Defendants were related to each
other, and they were also members of the Southside Chiques gang. (Albillar,
supra, 51 Cal.4th at pp. 52–53.) They were convicted of forcible rape in concert,
forcible sexual penetration in concert, and the gang substantive offense, and were
found to have committed the offenses for the benefit of a criminal street gang. (Id.
at p. 50.)
Albillar clarified that “a violation of section 186.22(a) is established when a
defendant actively participates in a criminal street gang with knowledge that the
gang's members engage or have engaged in a pattern of criminal activity, and
willfully promotes, furthers, or assists in any felonious criminal conduct by gang
members.” (Albillar, supra, 51 Cal.4th at p. 54, italics in original.) Albillar
rejected the defendants' challenges to their convictions for the substantive gang
offense, based on their argument that the phrase “any felonious criminal conduct,”
in section 186.22, subdivision (a), referred only to gang-related felonious criminal
conduct. (Albillar, supra, 51 Cal.4th at p. 59.)
“The gravamen of the substantive offense set forth in section 186.22(a) is
active participation in a criminal street gang. [T]he phrase ‘actively
participates' reflects the Legislature's recognition that criminal liability
attaching to membership in a criminal organization must be founded on
concepts of personal guilt required by due process: ‘a person convicted for
active membership in a criminal organization must entertain “guilty
knowledge and intent” of the organization's criminal purposes.’ [Citation.]
Accordingly, the Legislature determined that the elements of the gang
offense are (1) active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; (2) knowledge that the
gang's members engage in or have engaged in a pattern of criminal gang
activity; and (3) the willful promotion, furtherance, or assistance in any
felonious criminal conduct by members of that gang. [Citation.] All three
elements can be satisfied without proof the felonious criminal conduct
promoted, furthered, or assisted was gang related.” (Albillar, supra, 51
Cal.4th at pp. 55–56, italics added.)
The “plain language” of section 186.22, subdivision (a) “thus targets felonious
criminal conduct, not felonious gang-related conduct.” (Albillar, supra, 51 Cal.4th
at p. 55.)
“[T]here is nothing absurd in targeting the scourge of gang members
committing any crimes together and not merely those that are gang related.
Gang members tend to protect and avenge their associates. Crimes
committed by gang members, whether or not they are gang related or
committed for the benefit of the gang, thus pose dangers to the public and
16

1
2

difficulties for law enforcement not generally present when a crime is
committed by someone with no gang affiliation. ‘These activities, both
individually and collectively, present a clear and present danger to public
order and safety....’ [Citation.]” (Albillar, supra, 51 Cal.4th at p. 55.)

3
4
5

Albillar thus concluded that the defendants' convictions for the substantive gang
offense were supported by substantial evidence, and their challenges were without
merit, because the phrase “any felonious criminal conduct” in section 186.22,
subdivision (a), was not limited to gang-related felonious conduct. (Albillar, supra,
51 Cal.4th at p. 59.)

6
1. Analysis
7

10

In the instant case, as in Albillar, we similarly conclude that defendant's substantial
evidence challenges to his conviction in count XI, the substantive gang offense,
are without merit. In order to establish a violation of section 186.22, subdivision
(a), the prosecution was not required to prove the felonious criminal conduct
which defendant promoted, furthered, or assisted during the barbershop robberies
was gang related.

11

C. The gang enhancements

12

Defendant contends the jury's findings on the gang enhancements are not
supported by substantial evidence that he “specifically harbored the requisite
intent” when he committed the underlying offenses. Defendant argues that
evidence of his gang membership, standing alone, was insufficient to establish that
the underlying offenses were gang related.

8
9

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

As to count V, carjacking, and counts VI through IX, robbery, the jury found true
the gang enhancements pursuant to section 186.22, subdivision (b). To establish a
gang enhancement, the prosecution must prove two elements: (1) that the crime
was “committed for the benefit of, at the direction of, or in association with any
criminal street gang,” and (2) that the defendant had “the specific intent to
promote, further, or assist in any criminal conduct by gang members ....” (§
186.22, subd. (b)(1), italics added.)
As to the first element, “[n]ot every crime committed by gang members is related
to a gang.” (Albillar, supra, 51 Cal.4th at p. 60.) However, Albillar acknowledged
that the gang-related requirement for the enhancement may be shown by evidence
indicating that several defendants “came together as gang members” to commit the
offense, or that the offense could benefit the gang by, for example, elevating the
gang's or gang members' status or advancing the gang's activities. (Albillar, supra,
51 Cal.4th at pp. 62–63, italics omitted; see Gardeley, supra, 14 Cal.4th at p. 619.)
If the evidence is sufficient to establish the crime was committed in association
with a gang, the prosecution need not prove that it was committed for the benefit
of or at the direction of a gang. (See, e.g., People v. Morales (2003) 112
Cal.App.4th 1176, 1198 (Morales).)
As for the second element of specific intent, it does not require “that the defendant
act with the specific intent to promote, further, or assist a gang; the statute requires
only the specific intent to promote, further, or assist criminal conduct by gang
members.” (Albillar, supra, 51 Cal.4th at p. 67, italics in original.) “[S]pecific
intent to benefit the gang is not required.” (Morales, supra, 112 Cal.App.4th at p.
1198, italics in original.) The specific intent element “applies to any criminal
conduct, without a further requirement that the conduct be ‘apart from’ the
criminal conduct underlying the offense of conviction sought to be enhanced.”
17

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

(Albillar, supra, 51 Cal.4th at p. 66, italics in original.) The scienter requirement is
“the specific intent to promote, further, or assist in any criminal conduct by gang
members—including the current offenses—and not merely other criminal conduct
by gang members.” (Albillar, supra, 51 Cal.4th at p. 65, italics in original.)
“[I]f substantial evidence establishes that the defendant intended to and did
commit the charged felony with known members of a gang, the jury may fairly
infer that the defendant had the specific intent to promote, further, or assist
criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)
“Commission of a crime in concert with known gang members is substantial
evidence which supports the inference that the defendant acted with the specific
intent to promote, further or assist gang members in the commission of the crime.
[Citation.]” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
In Albillar, the California Supreme Court addressed defendants' substantial
evidence challenge to the gang enhancements found true as to the sexual assault
offenses in that case. Defendants argued the sexual assaults were not “gangrelated” because the defendants were related to each other, they lived together, and
it was conceivable that “‘several gang members could commit a crime together,
yet be on a frolic and detour unrelated to the gang.’ [Citation.]” (Albillar, supra,
51 Cal.4th at pp. 59–60, 62.)
Albillar rejected defendants' arguments and found there was substantial evidence
to support the gang enhancements for two reasons: the offenses were committed in
association with gang members, and the offenses were committed for the benefit of
the gang. (Albillar, supra, 51 Cal.4th at p. 60.) “The record supported a finding
that [the] defendants relied on their common gang membership and the apparatus
of the gang in committing the sex offenses against [the victim].” (Ibid.) In
particular, the court cited expert testimony about how gang members earn respect
and status by committing crimes with other members, and that gang members
choose to commit crimes together in order to increase their chances of success and
to provide training for younger members. (Id. at pp. 60–61.)

17
18
19
20
21
22
23

Albillar concluded that defendants' conduct, where each participant assisted the
others without a word being spoken, and each could rely on the silence of the
others and group intimidation of the victim, “exceeded that which was necessary to
establish that the offenses were committed in concert.” (Albillar, supra, 51 Cal.4th
at p. 61.)
“Defendants not only actively assisted each other in committing these
crimes, but their common gang membership ensured that they could rely on
each other's cooperation in committing these crimes and that they would
benefit from committing them together. They relied on the gang's internal
code to ensure that none of them would cooperate with the police and on
the gang's reputation to ensure that the victim did not contact the police.”
(Id. at pp. 61–62.)

24
25
26
27
28

Albillar also found substantial evidence the crimes were committed to benefit the
gang. (Albillar, supra, 51 Cal.4th at p. 63.) The court cited the gang expert's
testimony, that “‘[w]hen three gang members go out and commit a violent brutal
attack on a victim, that's elevating their individual status, and they're receiving a
benefit. They're putting notches in their reputation. When these members are doing
that, the overall entity benefits and strengthens as a result of it.’ Reports of such
conduct ‘rais[e] the[ ] level of fear and intimidation in the community.’” (Ibid.)
Albillar explained:
18

1
2
3

“Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the inference
that the conduct was ‘committed for the benefit of ... a[ ] criminal street gang’
within the meaning of section 186.22[, subd.] (b)(1).” (Ibid.)

4

1. Analysis

5

As in Albillar, defendant similarly argues that there is insufficient evidence to
support the gang enhancements in this case when someone who happens to be a
gang member commits felonious offenses for personal reasons. Defendant
acknowledges the holding in Albillar, but argues there is no evidence that the
underlying offenses in this case were committed with the requisite specific intent,
or for the benefit of, at the direction of, or in association with the ESC. Defendant
further argues Officer Finney's “bare speculation” was insufficient to satisfy these
elements of the gang enhancement.

6
7
8
9
10
11
12

Defendant's attack on Officer Finney's expert opinion as bare speculation is
meritless. Finney testified to his extensive personal experience investigating the
criminal activities of the ESC and interviewing their members. As explained in
Vang, the prosecutor's hypothetical questions were appropriate. In addition, the
questions were rooted in the facts shown by the evidence and were not based on
“‘assumptions of fact without evidentiary support....’” (People v. Richardson
(2008) 43 Cal.4th 959, 1008.)

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

As to the first element of the enhancement, the jury could have reasonably inferred
the carjacking and robberies in this case were gang-related from the very fact that
defendant committed the charged crimes in association with a fellow gang
member. (Morales, supra, 112 Cal.App.4th at p. 1198; Albillar, supra, 51 Cal.4th
at p. 62.) “The crucial element [of a gang allegation] requires that the crime be
committed (1) for the benefit of, (2) at the direction of, or (3) in association with a
gang. Thus, the typical close case is one in which one gang member, acting alone,
commits a crime.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
This is not a close case, given the overwhelming evidence that defendant and
Harris were members of the ESC when they committed the barbershop robberies
and carjacking together. Active participation is defined as “involvement with a
criminal street gang that is more than nominal or passive.” (People v. Castaneda
(2000) 23 Cal.4th 743, 747.) It does not require that a person “‘devote all, or a
substantial part of his time and efforts’ to the gang. [Citation.]” (Id. at p. 752.)
Officer Finney testified in extensive detail, and without contradiction, that
defendant and Harris were both members and active participants in the criminal
activities of the ESC and its related subsets.
As acknowledged by Albillar, not every crime committed by gang members is
gang-related for purposes of section 186.22, subdivision (b), and the mere fact that
gang members commit a crime together does not necessarily mean the crime is
gang-related for purposes of the gang enhancement. (Albillar, supra, 51 Cal.4th at
pp. 60, 62.) As Albillar also acknowledged, however, there was substantial
evidence to support the gang enhancements because the three defendants in that
case “came together as gang members to attack [the victim] and, thus ... they
committed [the sexual assaults] in association with the gang.” (Id. at p. 62.) In this
case, defendant and Harris similarly came together in ESC territory to commit a
carjacking and multiple robberies, offenses which Officer Finney identified as
within the primary activities of the ESC, and which would promote fear of the
19

1

gang in the territory.

2

Thus, the crimes were committed in association with the gang because the record
supporting a finding that defendant and Harris “relied on their common gang
membership and the apparatus of the gang in committing the [crimes] against [the
victims].” (Albillar, supra, 51 Cal.4th at p. 60.) In addition, the crimes were
committed for the benefit of the gang because, as explained by Officer Finney, the
armed robberies, in the midst of gang territory, promoted fear of the gang.
(Albillar, supra, 51 Cal.4th at p. 63.)

3
4
5
6
7
8
9
10
11
12
13
14
15
16

As for the second element of the enhancement, based on the evidence that
defendant “intended to and did commit the charged felon[ies] with known
members of a gang, the jury may fairly infer that the defendant had the specific
intent to promote, further, or assist criminal conduct by those gang members.”
(Albillar, supra, 51 Cal.4th at p. 68.) Defendant and Harris committed the
carjacking and robberies together, in a barbershop that was within the turf of the
ESC. By their own admissions, they were actively associated with the ESC and its
subsets. When they stole the car, they drove straight into the heart of ESC territory,
abandoned the stolen vehicle, and fled to an apartment building which had long
been associated with other members of the ESC. When Winters picked them up,
they told her to drive into another section of ESC turf.
We thus conclude there is substantial evidence to support defendant's conviction in
count XI for the substantive gang offense, and the gang enhancements found true
as to the carjacking and robbery counts. [N.10]
[N.10] We note that throughout the briefing in this case, defendant cites to
Garcia v. Carey (9th Cir.2005) 395 F.3d 1069, and Briceno v. Scribner
(9th Cir.2009) 555 F.3d 1065, in support of his challenges to the gang
findings and the instructions given in this case. Albillar rejected the Ninth
Circuit’s interpretation of the gang offense and gang enhancement
contained in those cases. (Albillar, supra, 51 Cal.4th at p. 66.)

17
18
19
20

Ruiz, 2012 WL 4076669, at *30–35.
b.

Federal Standard

The law on sufficiency of the evidence is clearly established by the United States Supreme

21

Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S.

22

307, the test on habeas review to determine whether a factual finding is fairly supported by the

23

record is as follows: “[W]hether, after viewing the evidence in the light most favorable to the

24

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

25

a reasonable doubt.” Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781

26

(1990). Thus, only if “no rational trier of fact” could have found proof of guilt beyond a

27

reasonable doubt will a petitioner be entitled to habeas relief. Jackson, 443 U.S. at 324.

28

Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16.
20

1

If confronted by a record that supports conflicting inferences, a federal habeas court “must

2

presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any

3

such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.

4

Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a

5

conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).

6

After the enactment of the AEDPA, a federal habeas court must apply the standards of

7

Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

8

2005). In applying the AEDPA’s deferential standard of review, this Court must presume the

9

correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson,

10
11

477 U.S. 436, 459 (1986).
In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further

12

explained the highly deferential standard of review in habeas proceedings, by noting that Jackson,

13

makes clear that it is the responsibility of the jury - not the court - to decide what
conclusions should be drawn from evidence admitted at trial. A reviewing court
may set aside the jury's verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury. What is more, a federal court
may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was “objectively
unreasonable.”

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15
16
17
18
19
20
21
22

Because rational people can sometimes disagree, the inevitable consequence of
this settled law is that judges will sometimes encounter convictions that they
believe to be mistaken, but that they must nonetheless uphold.
Id. at 3-4.
c.

Analysis

Petitioner argues that there was insufficient evidence to support the gang offense, because

23

the evidence did not support the finding that he had the personal intent to benefit the ESC gang.

24

According to Cal. Penal Code § 186.22(a), “[a]ny person who actively participates in any

25

criminal street gang with knowledge that its members engage in or have engaged in a pattern of

26

criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal

27

conduct by members of that gang” is guilty of the substantive gang offense.

28

The state court found that the statute did not require proving that the felonious activities
21

1

Petitioner participated in at the barbershop were gang-related. The state court determined that the

2

language in § 186.22(a) did not require commission of “gang-related” felonious criminal conduct,

3

but that “any” felonious criminal conduct sufficed. This Court is bound by the state court’s

4

interpretation of state law. Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009). There was

5

ample evidence that Petitioner assisted in the felonious criminal acts at the barbershop.

6

Therefore, his claim fails.

7

Petitioner also argues that the evidence did not support the gang enhancements because

8

there was insufficient evidence that he specifically harbored the requisite intent when he

9

committed the underlying offenses. Under § 186.22(b), to establish a gang enhancement, the

10

prosecution had to prove: 1) that the crime was “committed for the benefit of, at the direction of,

11

or in association with any criminal street gang”; and 2) that the defendant had “the specific intent

12

to promote, further or assist in any criminal conduct by gang members. . . .” Cal. Penal Code §

13

186.22(b).

14

The state court considered the definition and found it was clear that the evidence need

15

only establish that the crime was committed in association with a gang. It was not necessary to

16

establish that the crimes were committed for the benefit or at the direction of a gang. Here, there

17

was ample evidence from which a jury could determine that Petitioner committed the underlying

18

offenses in association with a gang. As to the second element, again the state court looked to the

19

plain language and found that it was not necessary for the prosecution to show defendant bore the

20

specific intent to promote, further, or assist a gang; rather, it was sufficient under the definition to

21

establish that the defendant bore the specific intent to promote, further or assist criminal conduct

22

by gang members. There was substantial evidence from which a jury could find that Petitioner

23

intended to promote, further, or assist his fellow gang member in the underlying criminal acts.

24

Therefore, this claim also fails.

25
26
27
28

2.

Bifurcation
a.

State Court Opinion

Petitioner contends that the trial court violated his federal due process rights by denying
his motions to bifurcate the trial as to the gang issues. In the last reasoned decision, the appellate
22

1

court rejected the claim as follows:

2

A. Motions in limine

3

During the pretrial motions in limine for defendant's jury trial, defendant moved to
bifurcate the gang issues and dismiss gang allegations. Defendant's motion was
based on the prosecution's alleged failure to disclose exculpatory evidence in
violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), the issue of
admissibility of the gang expert's testimony, and the sufficiency of the evidence
for the gang allegations to go to trial. Defendant did not move to sever count XI,
the gang substantive offense charged against him, from counts V through X, the
carjacking and robbery charges.

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In opposition, the prosecution argued the gang enhancements should not be
bifurcated because defendant was also charged with the gang substantive offense.
The prosecution further argued the gang evidence was intertwined with the other
charged offenses based on the theory that defendant's gang membership motivated
him to commit the barbershop robberies with another gang member, the reluctance
of witnesses to cooperate and testify, and the identification of defendant based on
his gang moniker.
B. The court's ruling
Prior to trial, the court heard argument on defendant's motion in limine and
defendant's Brady allegations. Defendant did not address bifurcation. However, the
prosecution argued the gang allegations should not be bifurcated for the reasons
stated in its opposition.
The court denied defendant's motion in limine as to the Brady allegations, the
admission of the gang expert's opinion, and the sufficiency of the evidence to go to
trial. In ruling on another defense motion, however, the court addressed both
bifurcation and severance as to the gang evidence:
“The gang evidence being proferred is relevant in this case to prove I.D. and
motive and intent, and then we have a charge in count 11 of [section]
186.22(A), and there is no reason to sever that charge from the other charges.
The evidence it does [sic] to an issue certainly of efficiency, and the
cumulative aspect has been addressed. [¶] So we have both gang enhancement
allegations and a charged offense relying upon for the most part, the same
evidence and gang allegations are inextricably intertwined with the counts
alleged, and the gang evidence may to some extent come in on issues of
credibility; but we won't know until we hear from witnesses.”
C. Motion for new trial

26

As part of defendant's motion for new trial, he argued there was insufficient
evidence to support his conviction on count XI, the gang substantive offense, and
the jury's findings on the gang enhancements. He also argued the gang expert's
opinions were speculative. He did not argue the court should have granted motions
for bifurcation and/or severance of the gang issues. The court denied the motion
for new trial.

27

D. Forfeiture

28

As a preliminary matter, the parties dispute whether defendant moved to bifurcate
23

24
25

1
2
3

or sever the gang issues in this case or raised the issue in his new trial motion. The
People assert that while defendant's pretrial motion included bifurcation in the
title, the defendant never moved to bifurcate the gang evidence or sever count IX,
the substantive gang offense, he never raised these issues in his new trial motion,
and he has forfeited appellate review of both issues. Defendant insists he preserved
all issues.

4
5
6

Defendant's pretrial and new trial motions did not raise the specific issues which
he now raises on appeal. During the pretrial rulings, however, the superior court
clearly believed that both bifurcation and severance of the gang issues had been
raised, and addressed both issues. Thus, we will address the court's rulings on
those two issues.

7
E. Bifurcation
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A trial court has broad discretion to control the conduct of a criminal trial. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The court's power to
bifurcate the trial of a gang enhancement from the trial of the substantive offense
is implied in section 1044. (Hernandez, supra, 33 Cal.4th at p. 1048.)
Hernandez explained that the need to bifurcate gang allegations is often not as
compelling as the bifurcation of prior conviction evidence. (Hernandez, supra, 33
Cal.4th at pp. 1048–1049.) “A prior conviction allegation relates to the defendant's
status and may have no connection to the charged offense; by contrast, the
criminal street gang enhancement is attached to the charged offense and is, by
definition, inextricably intertwined with that offense. So less need for bifurcation
generally exists with the gang enhancement than with a prior conviction allegation.
[Citation.]” (Id. at p. 1048, italics in original.) While the Legislature has
“recognized the potential for prejudice when a jury deciding guilt hears of a prior
conviction ... [n]othing in section 186.22 suggests the street gang enhancement
should receive special treatment of the kind given prior convictions. [Citations.]”
(Id. at p. 1049.)
“[E]vidence of gang membership is often relevant to, and admissible regarding, the
charged offense. Evidence of the defendant's gang affiliation—including evidence
of the gang's territory, membership, signs, symbols, beliefs and practices, criminal
enterprises, rivalries, and the like—can help prove identity, motive, modus
operandi, specific intent, means of applying force or fear, or other issues pertinent
to guilt of the charged crime. [Citations.] To the extent the evidence supporting the
gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]”
(Hernandez, supra, 33 Cal.4th at pp. 1049–1050.)
In moving for bifurcation, the defense “‘must clearly establish that there is a
substantial danger of prejudice requiring that the charges be separately tried.’
[Citation.]” (Hernandez, supra, 33 Cal.4th at p. 1051.) Bifurcation may be
necessary where the predicate offenses offered to establish the pattern of criminal
activity are “unduly prejudicial,” or where some of the other gang evidence may
be “so extraordinarily prejudicial, and of so little relevance to guilt,” that it may
influence the jury to convict regardless of the defendant's guilt. (Id. at p. 1049.)

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We review the trial court's denial of a motion to bifurcate for abuse of discretion.
(Hernandez, supra, 33 Cal.4th at p. 1048.) The trial court's discretion to deny a
motion to bifurcate the trial of a charged gang enhancement is broader than its
discretion to admit gang evidence when a gang enhancement is not charged. (Id. at
24

1
2

p. 1050.) When the evidence sought to be severed is related to a charged offense,
the burden is on the defendant to clearly establish a substantial danger of prejudice
requiring bifurcation. (Ibid.)

3

1. Analysis

4

The trial court did not abuse its discretion when it denied bifurcation of the gang
allegations and evidence in this case. The gang evidence was necessarily
intertwined with the charged offenses as to several relevant issues, particularly
motive and identity. “Motive is always relevant in a criminal prosecution.” (People
v. Perez (1974) 42 Cal.App.3d 760, 767.) “Gang evidence is relevant and
admissible when the very reason for the underlying crime, that is the motive, is
gang related. [Citation.] ‘“[B]ecause a motive is ordinarily the incentive for
criminal behavior, its probative value generally exceeds its prejudicial effect, and
wide latitude is permitted in admitting evidence of its existence.” [Citations.]’
[Citations.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167–1168
(Samaniego).)

5
6
7
8
9
10

13

Defendant and Harris were members of the ESC, they were alleged to have
committed the barbershop armed robberies and carjacking together, they
committed the offenses in the traditional territory of the ESC, the stolen car was
found within ESC territory, they fled to a particular street routinely frequented by
members of the ESC, and several of the stolen items were found in an apartment
located in the ESC area. In addition, some of the witnesses identified one of the
robbery suspects by the nickname of “A–Loc,” defendant's gang moniker.

14

F. Severance

15

In addition, defendant was charged with count XI, the substantive gang offense,
based on his robbery and carjacking in this case. As relevant to the charges in this
case, “to entirely eliminate the gang evidence would have required a severance ...
of the street terrorism count and the bifurcation of the gang enhancements.”
(People v. Burnell (2005) 132 Cal.App.4th 938, 947.)

11
12

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“In the context of severing charged offenses, we have explained that ‘additional
factors favor joinder. Trial of the counts together ordinarily avoids the increased
expenditure of funds and judicial resources which may result if the charges were to
be tried in two or more separate trials.’ [Citation.] Accordingly, when the evidence
sought to be severed relates to a charged offense, the ‘burden is on the party
seeking severance to clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried. [Citations.] When the offenses are
joined for trial the defendant's guilt of all the offenses is at issue and the problem
of confusing the jury with collateral matters does not arise. The other-crimes
evidence does not relate to [an] offense for which the defendant may have escaped
punishment. That the evidence would otherwise be inadmissible may be
considered as a factor suggesting possible prejudice, but countervailing
considerations that are not present when evidence of uncharged offenses is offered
must be weighed in ruling on a severance motion. The burden is on the defendant
therefore to persuade the court that these countervailing considerations are
outweighed by a substantial danger of undue prejudice.’ [Citation.]” (Hernandez,
supra, 33 Cal.4th at p. 1050.)
As with bifurcation, the court's ruling on a severance motion is reviewed for abuse
of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 27–28.) “Whether a trial
court abused its discretion in denying a motion to sever necessarily depends upon
25

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the particular circumstances of each case. [Citations.] The pertinent factors are
these: (1) would the evidence of the crimes be cross-admissible in separate trials;
(2) are some of the charges unusually likely to inflame the jury against the
defendant; (3) has a weak case been joined with a strong case or another weak case
so that the total evidence on the joined charges may alter the outcome of some or
all of the charged offenses; and (4) is any one of the charges a death penalty
offense, or does joinder of the charges convert the matter into a capital case.
[Citation.] A determination that the evidence was cross-admissible ordinarily
dispels any inference of prejudice. [Citations.]” (Ibid.)
“The analogy between bifurcation and severance is not perfect. Severance of
charged offenses is a more inefficient use of judicial resources than bifurcation
because severance requires selection of separate juries, and the severed charges
would always have to be tried separately; a bifurcated trial is held before the same
jury, and the gang enhancement would have to be tried only if the jury found the
defendant guilty. But much of what we have said about severance is relevant here,
and we conclude that the trial court's discretion to deny bifurcation of a charged
gang enhancement is similarly broader than its discretion to admit gang evidence
when the gang enhancement is not charged. [Citation.]” (Hernandez, supra, 33
Cal.4th at p. 1050, italics added.)

11
1. Analysis
12

21

To the extent defendant moved to sever count XI, the gang substantive offense, the
court did not abuse its discretion to deny severance. Joint trials of offenses which
occur together are legislatively preferred over separate trials, and the party
requesting severance of properly joined offenses carries a very heavy burden to
“‘clearly establish that there is a substantial danger of prejudice requiring that the
charges be separately tried’ ” before such a severance can be granted. (People v.
Burnell, supra, 132 Cal.App.4th at p. 946, italics in original; see § 954.) Defendant
failed to do so. The gang evidence was cross-admissible as to motive, identity, and
the reluctance of certain witnesses to testify. The substantive street terrorism count
required much the same evidence to prove, and was no more potentially
inflammatory than the other charges, such that severance would not have been
appropriate. (See, e.g., Hernandez, supra, 33 Cal.4th at p. 1051.) In addition, the
evidence as to count XI, the substantive gang evidence, and the gang
enhancements, was not weak. Indeed, as we will discuss in issue V, post, the
evidence of the gang association, benefit, and motive in this case was particularly
strong. And as we will discuss in issue IV, post, the jury was correctly instructed
on the limited purpose of gang evidence, and we presume the jury followed the
instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

22

G. Due process

23

Finally, defendant argues the denial of his motions for bifurcation and/or
severance of the gang issues and evidence violated his due process right to a fair
trial on the carjacking and robbery charges, because of the alleged “gross
unfairness” that resulted from the introduction of the gang evidence in this case.

13
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20

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Defendant's argument is based on People v. Albarran (2007) 149 Cal.App.4th 214
(Albarran), which held:
“To prove a deprivation of federal due process rights, [the defendant] must
satisfy a high constitutional standard to show that the erroneous admission
of evidence resulted in an unfair trial. ‘Only if there are no permissible
26

1
2
3
4

inferences the jury may draw from the evidence can its admission violate
due process. Even then, the evidence must “be of such quality as
necessarily prevents a fair trial.” [Citation.] Only under such circumstances
can it be inferred that the jury must have used the evidence for an improper
purpose.’ [Citation.] ‘The dispositive issue is ... whether the trial court
committed an error which rendered the trial “so ‘arbitrary and
fundamentally unfair’ that it violated federal due process.” [Citations.]’
[Citation.]” (Id. at pp. 229–230, fn. omitted.)

5
6
7
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17

In Albarran, the defendant was charged with multiple offenses based on his
participation in a shooting at the victim's home. He was not charged with the gang
substantive offense, but gang enhancements were alleged. (Albarran, supra, 149
Cal.App.4th at pp. 217–220.) The trial court permitted the prosecution to introduce
gang evidence to prove defendant's motive and intent. The jury convicted the
defendant of the substantive offenses and found the gang enhancements were true.
Thereafter, the court granted a motion to dismiss the gang allegations for
insufficient evidence. (Id. at pp. 218–220.)
Albarran held that while the trial court may have initially found that defendant's
gang activities were relevant and probative to his motive and intent, the court
abused its discretion when it permitted the prosecution to introduce additional
gang evidence that was completely irrelevant to defendant's motive or the
substantive criminal charges. (Albarran, supra, 149 Cal.App.4th at p. 217.) The
irrelevant evidence included other gang members' threats to kill police officers,
descriptions of crimes committed by other gang members and references to the
Mexican Mafia prison gang. Albarran characterized the irrelevant gang evidence
as “extremely and uniquely inflammatory, such that the prejudice arising from the
jury's exposure to it could only have served to cloud their resolution of the issues.”
(Id. at p. 230, fns. omitted.) Albarran also classified this evidence as “overkill,”
and said it was “troubled” by the trial court's failure to scrutinize the potential
prejudice of the gang offense on the substantive charges. (Id. at p. 228.) Albarran
found the irrelevant and prejudicial gang evidence was so inflammatory that it
“had no legitimate purpose in this trial,” and held admission of that evidence
violated defendant's due process rights. (Id. at pp. 230–231.)

18
1. Analysis
19
20
21
22
23
24
25
26
27
28

The instant case is not “one of those rare and unusual occasions where the
admission of evidence has violated federal due process and rendered the
defendant's trial fundamentally unfair.” (Albarran, supra, 149 Cal.App.4th at p.
232.) In contrast to Albarran, defendant was charged with both the gang
substantive offense and enhancements. The court did not grant a new trial as to
either count XI or the enhancements. As we will explain post, the jury was
properly instructed on the limited admissibility of the gang evidence, and the jury's
findings on count XI and the gang enhancements are supported by overwhelming
substantial evidence. More importantly, Officer Finney's expert testimony
regarding the criminal activities of the ESC was not similar to the sensational and
prejudicial testimony admitted in Albarran. While Finney addressed predicate
offenses committed by other members of ESC, his testimony was limited to the
essential facts needed by the prosecution to prove the elements of both the gang
substantive offense and the enhancements. In addition, Finney never addressed any
prior criminal conduct allegedly committed by defendant and/or Harris. Moreover,
the gang evidence in this case was no more sensational than the evidence as to the
carjacking and robbery charges against defendant, that he committed a brazen
daytime armed robbery, during which one of the suspects trained his firearm on
27

1

one of the victims and repeatedly threatened to “pop” him if he failed to quickly
remove his jewelry.

2
3

The court did not abuse its discretion when it denied bifurcation and severance of
the gang issues and evidence in this case, and the admission of the gang evidence
did not violate defendant's due process rights.

4
5
6
7

Ruiz, 2012 WL 4076669, at *20–24.
b.

Federal Standard and Analysis

There is no clearly established Federal law which holds that joinder or consolidation of

8

charges may violate the Constitution. In United States v. Lane, 474 U.S. 438, 446 n. 8 (1986), the

9

Supreme Court stated in a footnote that “[i]mproper joinder does not, in itself, violate the

10

Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it

11

results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.”

12

However, in Young v. Pliler, the Ninth Circuit stated:

13
14
15
16
17

Lane considered only the effect of misjoinder under Federal Rule of Criminal
Procedure 8, and expressly stated that no constitutional claim had been presented.
See Lane, 474 U.S. 438, 446 & n. 9, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Thus,
Lane's broad statement-found in a footnote without citation to any legal authoritythat misjoinder could only rise to the level of a constitutional violation if it was so
prejudicial as to violate due process, was probably dictum. Only Supreme Court
holdings are controlling when reviewing state court holdings under 28 U.S.C. §
2254; Court dicta and circuit court authority may not provide the basis for granting
habeas relief. Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155
L.Ed.2d 144 (2003).

18
19

Young, 273 Fed.Appx. 670, n. 1, 2008 WL 1757564 (9th Cir.2008) (unpublished); see also

20

Collins v. Runnels, 603 F.3d 1127, 1132–33 (9th Cir.2010).

21

In ascertaining what is “clearly established Federal law,” this Court must look to the

22

“holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the

23

relevant state-court decision.” Williams, 592 U.S. at 412. “In other words, ‘clearly established

24

Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the

25

Supreme Court at the time the state court renders its decision.” Id. Given that there is no clearly

26

established Federal law in this instance, the Court cannot grant relief, since habeas relief is

27

triggered only when the state court adjudication runs afoul of clearly established federal law. See

28

Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (absent a Supreme Court decision that
28

1

squarely addresses the issue it “cannot be said, under AEDPA, there is ‘clearly established’

2

Supreme Court precedent…and so we must defer to the state court’s decision”).

3

Even assuming, arguendo, that the Supreme Court's footnote could be considered clearly

4

established Federal law, no constitutional violation occurred in this case, because the prejudice

5

was not so great as to deny Petitioner his right to a fair trial. Lane, 474 U.S. at 446, fn. 8. The

6

gang evidence in this case was highly relevant to several issues including motive, identity, and the

7

reluctance of certain witnesses to testify. Much of the evidence was cross-admissible for the

8

substantive gang offense and the gang enhancements. In addition, the jury was instructed on the

9

limited use of the gang evidence. Moreover, Petitioner fails to establish any prejudice. Since the

10

gang evidence would have been admissible in the trial on the substantive charges, Petitioner

11

cannot show that bifurcation would have eliminated the purported prejudice, nor that lack of

12

bifurcation altered the outcome in any way. Accordingly, the state court adjudication was not

13

objectively unreasonable. For the foregoing reasons, the claim should be rejected.

14
15
16

3.

Use of Hypotheticals
a.

State Court Opinion

Petitioner next argues that the trial court erred in permitting the use of case- and

17

defendant-specific hypotheticals. The claim was rejected by the appellate court as follows:

18

Defendant argues that the court improperly permitted Officer Finney, the
prosecution's gang expert, to answer a series of hypothetical questions which
mirrored the facts in this case. Defendant argues Finney was improperly permitted
to respond to “unduly case-and defendant-specific gang hypothetical questions and
answers” which effectively told the jurors how to decide the disputed gang issues
in this case.

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28

A. Expert testimony in gang cases
It is well settled that expert testimony about gang culture and habits is admissible
and the type of evidence a jury may rely on to reach a verdict on a gang-related
offense or a finding on a gang allegation. (People v. Gardeley (1996) 14 Cal.4th
605, 619 (Gardeley); People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v.
Ferraez (2003) 112 Cal.App.4th 925, 930.) The subject matter of the culture and
habits of street gangs meets the criteria for the admissibility of expert opinion
because such evidence is sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th at p. 617.)
Such areas include “testimony about the size, composition or existence of a gang
[citations], gang turf or territory [citations], an individual defendant's membership
in, or association with, a gang [citations], the primary activities of a specific gang
[citations], motivation for a particular crime, generally retaliation or intimidation
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[citations], whether and how a crime was committed to benefit or promote a gang
[citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti
and hand signs [citations], and gang colors or attire [citations].” (People v.
Killebrew (2002) 103 Cal.App.4th 644, 656–657, fns. omitted.)
“A witness testifying in the form of an opinion may state on direct examination the
reasons for his opinion and the matter ... upon which it is based, unless he is
precluded by law from using such reasons or matter as a basis for his opinion.”
(Evid.Code, § 802.) Expert testimony may be “premised on material that is not
admitted into evidence so long as it is material of a type that is reasonably relied
upon by experts in the particular field in forming their opinions” and is reliable.
(Gardeley, supra, 14 Cal.4th at p. 618.) If the threshold requirement of reliability
is met, “even matter that is ordinarily inadmissible can form the proper basis for an
expert's opinion testimony.” (Ibid., italics omitted; see also People v. Duran
(2002) 97 Cal.App.4th 1448, 1463.) Since Evidence Code section 802 permits an
expert witness to “‘state on direct examination the reasons for his opinion and the
matter ... upon which it is based,’ an expert witness whose opinion is based on
such inadmissible matter can, when testifying, describe the material that forms the
basis of the opinion.” (Gardeley, supra, 14 Cal.4th at p. 618.)

15

Thus, an officer testifying as a gang expert, just like other experts, may give
testimony that is based on hearsay, including conversations with gang members as
well as with the defendant. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324;
Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209,
1223, fn. 9.) A gang expert's opinion may also be based upon the expert's personal
investigation of past crimes by gang members, and information about gangs
learned from the expert's colleagues or other law enforcement agencies. (People v.
Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley, supra, 14 Cal.4th at p. 620;
People v. Vy, supra, 122 Cal.App.4th at p. 1223, fn. 9.)

16

B. People v. Vang

17

“A gang expert may render an opinion that facts assumed to be true in a
hypothetical question present a ‘classic’ example of gang-related activity, so long
as the hypothetical is rooted in facts shown by the evidence. [Citation.]” (People v.
Gonzales (2005) 126 Cal.App.4th 1539, 1551, fn. 4.)

12
13
14

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19
20
21
22
23
24
25
26
27
28

At the time of briefing in this case, defendant acknowledged the question of the
permissible degree of specificity in gang hypothetical questions was pending
before the California Supreme Court. This issue has now been decided. In People
v. Xue Vang (2011) 52 Cal.4th 1038 (Vang), it was alleged the defendants
committed felony assault with force likely to commit great bodily injury for the
benefit of a criminal street gang within the meaning of section 186.22, subdivision
(b)(1). (Vang, supra, 52 Cal.4th at pp. 1041–1042.) The prosecutor presented
expert testimony with respect to the history, characteristics and motives of the
gang. The prosecutor also asked the expert hypothetical questions which “closely
tracked the evidence in a manner that was only thinly disguised.” (Id. at p. 1041.)
The appellate court reversed and held the trial court erroneously allowed the expert
to respond to the hypothetical questions. (Ibid.)
Vang held that the hypothetical questions, and their recitation of the evidence
against the defendants, were a proper means of presenting the expert's opinions.
“Use of hypothetical questions is subject to an important requirement.
‘Such a hypothetical question must be rooted in facts shown by the
30

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5
6
7
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9
10
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evidence....’ [Citations.] A hypothetical question need not encompass all of
the evidence. ‘It is true that “it is not necessary that the question include a
statement of all the evidence in the case. The statement may assume facts
within the limits of the evidence, not unfairly assembled, upon which the
opinion of the expert is required, and considerable latitude must be allowed
in the choice of facts as to the basis upon which to frame a hypothetical
question.” [Citation.] On the other hand, the expert's opinion may not be
based ‘“on assumptions of fact without evidentiary support [citation], or on
speculative or conjectural factors....”’ [Citations.] But, however much
latitude a party has to frame hypothetical questions, the questions must be
rooted in the evidence of the case being tried, not some other case.
“The reason for this rule should be apparent. A hypothetical question not
based on the evidence is irrelevant and of no help to the jury. ‘ “Exclusion
of expert opinions that rest on guess, surmise or conjecture [citation] is an
inherent corollary to the foundational predicate for admission of the expert
testimony: will the testimony assist the trier of fact to evaluate the issues it
must decide?” ’ [Citation.] Expert testimony not based on the evidence will
not assist the trier of fact. Thus, ‘[a]lthough the field of permissible
hypothetical questions is broad, a party cannot use this method of
questioning a witness to place before the jury facts divorced from the
actual evidence and for which no evidence is ever introduced.’ [Citation.]
“As applied here, this rule means that the prosecutor's hypothetical
questions had to be based on what the evidence showed these defendants
did, not what someone else might have done. The questions were directed
to helping the jury determine whether these defendants, not someone else,
committed a crime for a gang purpose. Disguising this fact would only
have confused the jury.” (Vang, supra, 52 Cal.4th at p. 1045, italics in
original.)

16
17
18

Vang held that hypothetical questions could properly be used to elicit testimony
from gang experts, and that such questions “must be rooted in the evidence of the
case being tried, not some other case.” (Vang, supra, 52 Cal.4th at p. 1046.) The
court specifically approved the prosecutor's use of hypothetical questions even
though the questions only “‘thinly disguised’” the evidence. (Id. at p. 1046.)

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20
21
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23
24

Although approving an expert's express reliance on and consideration of the
evidence presented at trial, Vang nonetheless carefully reiterated and reaffirmed
the rule which prevents an expert from offering an opinion as to a defendant's
actual guilt or the actual truth of an alleged enhancement. “‘A witness may not
express an opinion on a defendant's guilt. [Citations.] The reason for this rule is
not because guilt is the ultimate issue of fact for the jury, as opinion testimony
often goes to the ultimate issue. [Citations.] “Rather, opinions on guilt or
innocence are inadmissible because they are of no assistance to the trier of fact. To
put it another way, the trier of fact is as competent as the witness to weigh the
evidence and draw a conclusion on the issue of guilt.”’ [Citations.]” (Vang, supra,
52 Cal.4th at p. 1048.)

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28

Vang noted the expert in that case had no personal knowledge as to whether any of
the defendants had committed the underlying assault “and if so, how or why; he
was not at the scene. The jury was as competent as the expert to weigh the
evidence and determine what the facts were, including whether the defendants
committed the assault. So he could not testify directly whether they committed the
assault for gang purposes. But he properly could, and did, express an opinion,
31

1

based on hypothetical questions that tracked the evidence, whether the assault, if
the jury found it in fact occurred, would have been for a gang purpose.” (Vang,
supra, 52 Cal.4th at p. 1048, italics added.)

2
3

Vang further held that hypothetical questions which closely track evidence
presented at trial and are, as a practical matter, indistinguishable from the case
presented against a defendant, are quite distinct from direct opinions about a
defendant's guilt or innocence. (Vang, supra, 52 Cal.4th at p. 1049.) Unlike
questions of guilt or innocence, hypothetical questions do not invade the province
of the jury:

4
5
6

“[E]xpect testimony is permitted even if it embraces the ultimate issue to be
decided. [Citation.] The jury still plays a critical role in two respects. First, [the
jury] must decide whether to credit the expert's opinion at all. Second, it must
determine whether the facts stated in the hypothetical questions are the actual
facts, and the significance of any difference between the actual facts and the
facts stated in the questions.” (Id. at pp. 1049–1050.)

7
8
9
10

C. Analysis

11

Vang resolves defendant's challenges to the hypothetical questions asked in this
case. As set forth in the factual summary, ante, the prosecutor asked Officer
Finney, the prosecution's gang expert, several hypothetical questions. As in Vang,
these questions were based on hypothetical situations nearly identical to the crimes
which occurred in this case, but the use of such questions did not invade the
province of the jury. In addition, while the prosecutor attempted to ask Finney
specific questions about the culpability of defendant and/or Harris, the court
sustained defense counsel's objections to those questions and Finney never
addressed the issue. Thus, Finney's responses to the hypothetical questions did not
stray from the guidelines for such questions approved in Vang.

12
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14
15
16
17

Ruiz, 2012 WL 4076669, at *25–27.
b.

18

Federal Standard

19

A federal court’s inquiry is limited to whether the evidence ruling “resulted in a decision

20

that was contrary to, or involved an unreasonable application of, clearly established Federal law,

21

as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). With respect

22

to the admission of evidence, there is no Supreme Court precedent governing a court’s

23

discretionary decision to admit expert testimony concerning an ultimate issue to be resolved by

24

the trier of fact. Moses v. Payne, 543 F.3d 1090, 1105 (9th Cir. 2005). Moreover, it is a well-

25

established rule that expert testimony concerning an ultimate issue is permissible. Hangarter v.

26

Provident Life and Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). Because there is no clearly

27

established Supreme Court precedent on this issue, federal habeas relief is foreclosed.

28

///
32

1

4.

2
3

Instructional Error – “Immediate presence” element
a.

State Court Opinion

Petitioner next alleges the trial court erred in defining the “immediate presence element”

4

of carjacking, as distinct from robbery. In rejecting this claim, the appellate court stated as

5

follows:

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23

In count V, defendant was charged and convicted of carjacking Mosley's vehicle.
(§ 215.) Defendant argues the court erroneously defined the “immediate presence”
element of carjacking, because it only defined constructive possession instead of
physical control.
A. Background
As set forth in the factual summary, Mosley, one of the customers in the
barbershop, had parked his white Dodge Charger behind the business. After the
two suspects had taken money and jewelry from the victims in the barbershop, one
suspect yelled out and asked who was driving the Dodge Charger. Mosley
responded that the car belonged to him. The taller man said, “‘Give me the keys.’”
Mosley threw his keys on the floor. One of the suspects retrieved the keys and they
left the business. McClary, another robbery victim, heard a car start and quickly
accelerate. The Dodge was abandoned near the Feliz Drive apartment.
The jury was instructed with CALCRIM No. 1650 as to the elements of
carjacking.
“The defendant is charged in Count 5 with carjacking, in violation of Penal
Code section 215.[¶] To prove that the defendant is guilty of this crime, the
People must prove that: [¶] 1. The defendant took a motor vehicle that was
not his own; [¶] 2. The vehicle was taken from the immediate presence of a
person who possessed the vehicle or was its passenger; [¶] 3. The vehicle
was taken against that person's will; [¶] 4. The defendant used force or fear
to take the vehicle or to prevent that person from resisting; and [¶] 5. When
the defendant used force or fear to take the vehicle, he intended to deprive
the other person of possession of the vehicle either temporarily or
permanently.” (Italics added.)
The jury was further instructed:
“A vehicle is within a person's immediate presence if it is sufficiently
within its control so that he could keep possession of it if not prevented by
force or fear. (Italics added.)

24

Defendant did not object to these instructions or request further definitions.

25

B. Carjacking

26

Carjacking is defined as “the felonious taking of a motor vehicle in the possession
of another, from his or her person or immediate presence, or from the person or
immediate presence of a passenger of the motor vehicle, against his or her will and
with the intent to either permanently or temporarily deprive the person in
possession of the motor vehicle of his or her possession, accomplished by means
33

27
28

1

of force or fear.” (§ 215, italics added.)

2

A vehicle is within a person's immediate presence for purposes of carjacking if it is
sufficiently within his control so that he could retain possession of it if not
prevented by force or fear. (People v. Medina (1995) 39 Cal.App.4th 643, 648
(Medina).) It is not necessary that the victim be physically present in the vehicle
when the confrontation occurs. (Id. at p. 650; People v. Gomez (2011) 192
Cal.App.4th 609, 623.)

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22

In Medina, the victim was lured into a motel room by an accomplice of the
defendant. (Medina, supra, 39 Cal.App.4th at pp. 646, 651.) There, the defendant
and accomplices bound the victim, took his car keys, then took his car. (Id. at pp.
646–647.) The defendant challenged his conviction for carjacking, arguing that
“actual physical proximity of the victim to the vehicle is required.” (Id. at p. 649.)
Medina disagreed, explaining that the “only reason [the victim] was not in the car
when it was taken and this was not a ‘classic’ carjacking, was because he had been
lured away from it by trick or device.” (Id. at pp. 651–652.)
In People v. Hoard (2002) 103 Cal.App.4th 599 (Hoard), the defendant entered a
jewelry store and ordered two employees to give him the keys to the jewelry cases
and to the car belonging to Sarah Gibeson, one of the employees. (Id. at p. 602.)
The employees complied and were then directed into a back room and bound.
(Ibid.) The defendant took jewelry from the cases and Gibeson's car. (Ibid.) Hoard
relied on Medina and affirmed the defendant's carjacking conviction:
“In the present case, the elements of carjacking were established.
Defendant took possession of Gibeson's car by threatening her and
demanding her car keys. Although she was not physically present in the
parking lot when he drove the car away, she had been forced to relinquish
her car keys. Otherwise, she could have kept possession and control of the
keys and her car. Although not the ‘classic’ carjacking scenario, it was a
carjacking all the same.” (Hoard, supra, 103 Cal.App.4th at p. 609, italics
added, fn. omitted.)
In contrast, in People v. Coleman (2007) 146 Cal.App.4th 1363, the court reversed
defendant's carjacking conviction based on slightly different facts. The owner of a
glass shop drove his Chevrolet Silverado to the shop in the morning, put the keys
to the Silverado in a back work area of the shop, then drove away in a truck he
used in his business. (Id. at p. 1366.) While the owner was away, the defendant
entered the shop, pointed a gun at the office manager, and told her to give him the
keys to the Silverado. (Ibid.) The office manager walked to the back of the shop,
grabbed the keys to the Silverado, and gave them to the defendant. (Ibid.) The
defendant was convicted of robbery and carjacking. (Id. at pp. 1365, 1367, fn. 2.)

27

Coleman reversed the conviction for carjacking. Coleman acknowledged “that a
carjacking may occur where neither the possessor nor the passenger is inside or
adjacent to the vehicle,” but held the circumstances in the case were “simply too
far removed from the type of conduct that [the carjacking statute] was designed to
address.” (Coleman, supra, 146 Cal.App.4th at p. 1373.) The office manager who
gave the keys to defendant “was not within any physical proximity to the
Silverado, the keys she relinquished were not her own, and there was no evidence
that she had ever been or would be a driver of or passenger in the Silverado.”
(Ibid.)

28

In People v. Gomez, supra, 192 Cal.App.4th 609, defendant and three accomplices

23
24
25
26

34

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3
4
5
6
7
8
9
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assaulted Estrada at an apartment complex where Estrada lived. During the attack,
one of the assailants obtained the keys to Estrada's pickup truck. After beating
Estrada, the four men left the apartment complex in defendant's car, then returned
10 or 20 minutes later. By that time, Estrada was inside his apartment. Two of the
four assailants got into Estrada's truck and drove away. (Id. at pp. 677–678.)
Gomez held there was substantial evidence to support defendant's conviction for
carjacking.
“The immediate presence requirement is more easily met in this case than
in Medina or Hoard. Here, although Estrada was inside his apartment at
the time the [suspects] took his truck, the truck was only approximately 10
feet away from him. He watched the men through his window and made
eye contact with them. Under the circumstances described above, the jury
could reasonably find that Estrada was fearful of a further assault and
would have acted to stop the [suspects] and retain possession of his truck if
not prevented by such fear. The fact that 10 or 20 minutes had elapsed
between the physical assault and the taking of the keys is insignificant.
Regardless of the passage of time, fear was being used against Estrada at
the time the vehicle was taken.” (People v. Gomez, supra, 192 Cal.App.4th
at p. 624.)

11
12

Gomez distinguished the case from Coleman, since the keys were taken directly
from Estrada during the physical assault. (People v. Gomez, supra, 192
Cal.App.4th at p. 625.)

13
C. Analysis
14
15
16
17
18
19
20
21
22
23
24
25

Defendant contends that CALCRIM No. 1650 erroneously defined carjacking to
include taking a vehicle from the victim's constructive possession, and the
instruction should have included taking the vehicle involving “the concept of
physical control.” Defendant argues that additional language should have been
given for the following reasons:
“[T]he owner's keys were taken in another location and his car driven
away. Jurors sorely needed instruction on physical control to resolve the
immediate presence issue here for purposes of carjacking. Instead, these
skewed and misleading instructions pointedly suggested that for carjacking
(unlike robbery) it did not matter if the victim had any proximate physical
control of his car.” (Fn. omitted.)
Defendant further asserts that “[w]ithout the element of physical control in this
definition, immediate presence was stretched into expansive concepts of
constructive possession phrased in overly broad terms of the right to control. Mr.
Mosley had the ‘right to control’ his car no matter where it was parked in town.
The conspicuous omission of physical control from carjacking (but not robbery)
meant [defendant] was guilty even if the car was parked blocks away or across
down. This was unfair. Jurors needed to know the settled requirement that there
has to be some element of proximate physical control (not bare right to control as
might show constructive possession) to show immediate presence).” (Original
italics.)

26
27
28

Defendant's arguments seem to challenge the statutory definition of carjacking,
and convictions under that statute, since section 215 defines the offense as “the
felonious taking of a motor vehicle in the possession of another, from his or her
person or immediate presence. ...” (Italics added.) CALCRIM No. 1650, as given
35

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to the jury, correctly states the elements of this offense, including the definition of
“immediate presence.” (People v. Gomez, supra, 192 Cal.App.4th at p. 623.) A
violation of section 215 does not require the vehicle to be taken from the direct
physical control of the owner. As shown by Medina, Hoard, Gomez, and even
Coleman, the jury in this case was properly instructed and defendant's conviction
for carjacking is supported by substantial evidence. Indeed, this case is quite
similar to the facts in Hoard. One of the robbers demanded the identity of the
owner of the Dodge Charger. Mosley claimed ownership, and he was ordered to
turn over the keys at gunpoint. Mosley was already lying on the floor. He pushed
the keys across the floor, and one of the suspects picked up the keys. The vehicle
was parked behind the barbershop, and another robbery victim heard a vehicle
driving away shortly after the two robbers left the store. The suspects abandoned
the vehicle within minutes.
Defendant complains that the carjacking instruction should have included the
concept of physical control, using language used in robbery instructions.
Defendant seems to suggest that he only could have been convicted of carjacking
if the jury had been instructed that the vehicle was taken from the direct physical
control of the victim. As we have explained, however, the jury herein was properly
instructed with the definition of carjacking and immediate presence, and there is
overwhelming evidence to support defendant's conviction for carjacking based on
demanding and then taking the car keys from the owner at gunpoint, while the
vehicle was parked just behind the scene of the crime.
Defendant contends that his instructional challenge is supported by People v.
Hayes (1990) 52 Cal.3d 577 (Hayes), but his reliance on Hayes is misplaced. In
Hayes, the trial court's instructions on immediate presence were held erroneous
because they allowed the jury to find that element satisfied so long as the victim
perceived any overt act connected with the robbery's commission, such as the
defendant's use of force or fear. (Id. at pp. 627–628.) Hayes found this “rendered
the ‘immediate presence’ element devoid of all independent meaning, making it
redundant with the ‘force or fear’ element.” (Id. at p. 628.)

17
18

Hayes does not undermine the holdings of Hoard, Medina, and Gomez, that taking
the victim's car keys at gunpoint and then driving off with the victim's nearby car,
satisfied the immediate presence element of carjacking.

19
20
21
22
23

We thus conclude the jury was properly instructed and his conviction for
carjacking is supported by overwhelming substantial evidence.
Ruiz, 2012 WL 4076669, at *36–39.
b.

Federal Standard

Initially, the Court notes that a claim that a jury instruction violated state law is not

24

cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain

25

federal collateral relief for errors in the jury charge, a petitioner must show that the ailing

26

instruction by itself so infected the entire trial that the resulting conviction violates due process.

27

See Estelle, 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v.

28

DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be established not merely that the
36

1

instruction is undesirable, erroneous or even “universally condemned,” but that it violated some

2

[constitutional right].’”). The instruction may not be judged in artificial isolation, but must be

3

considered in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S.

4

at 72. In other words, the court must evaluate jury instructions in the context of the overall

5

charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S.

6

152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843

7

F.2d 314, 317 (9th Cir. 1988); see, e.g., Middleton v. McNeil, 541 U.S. 433, 434–35 (2004) (per

8

curiam) (no reasonable likelihood that jury misled by single contrary instruction on imperfect

9

self-defense defining “imminent peril” where three other instructions correctly stated the law).

10

Moreover, “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a

11

misstatement of the law.” Henderson, 431 U.S. at 155.
In addition, a habeas petitioner is not entitled to relief unless the instructional error “‘had

12
13

substantial and injurious effect or influence in determining the jury's verdict.’” Brecht v.

14

Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

15

(1946)). In other words, state prisoners seeking federal habeas relief may obtain plenary review

16

of constitutional claims of trial error, but are not entitled to habeas relief unless the error resulted

17

in “actual prejudice.” Id. (citation omitted); see Calderon v. Coleman, 525 U.S. 141, 146–47

18

(1998).

19

c.

Analysis

20

The state court reasonably determined that the jury was properly instructed on the

21

definition of carjacking. Cal. Penal Code § 215 defines carjacking as the “felonious taking of a

22

motor vehicle in the possession of another, from his or her person or immediate presence, . . . ,

23

against his or her will and with the intent to either permanently or temporarily deprive the person

24

in possession of the motor vehicle of his or her possession, accomplished by means of force or

25

fear.” Cal. Penal Code § 215 (italics added). Under California law, it is not necessary that the

26

person be physically in the vehicle when it is taken. People v. Gomez, 192 Cal.App.4th 609, 623

27

(2011). Rather, it is enough that the vehicle be sufficiently within his control so that he could

28

retain possession of it if not prevented by force or fear. People v. Medina, 39 Cal.App.4th 643,
37

1
2

648 (1995).
The jury was instructed with CALCRIM No. 1650 on the elements of carjacking. The

3

second element of the instruction stated: “The vehicle was taken from the immediate presence of

4

a person who possessed the vehicle or was its passenger.” The jury was further instructed that

5

“[a] vehicle is within a person’s immediate presence if it is sufficiently within its control so that

6

he could keep possession of it if not prevent by force or fear.” Therefore, the jury was instructed

7

precisely with the definition of carjacking under California law. Accordingly, the claim fails,

8

since the Court is bound by the state court’s interpretation of its own law. Waddington, 555 U.S.

9

at 192 n.5.

10
11

5.

Instructional Error – “In association with a criminal street gang” element
a.

State Court Opinion

12

In a similar claim, Petitioner contends the trial court erred in defining the technical

13

terminology: “in association with a criminal street gang” concerning the gang enhancement. The

14

appellate court denied the claim as follows:

15
16
17
18

Defendant next contends the court had a sua sponte duty to further define the
phrase “in association with” as to the gang enhancement, and asserts the phrase
included technical terms which the jury could not understand without additional
definitions.
A. Background

21

The jury was instructed with CALCRIM No. 1401 as to the elements of the gang
enhancement. The jury was instructed that one of the elements was that the
defendant committed the underlying offense “for the benefit of, at the direction of,
or in association with a criminal street gang.” (Italics added.) However, the court
did not define the phrase “in association with,” and defendant did not request
additional instructions.

22

B. Analysis

23

Defendant argues that the court had a sua sponte duty to define “in association
with” in CALCRIM No. 1401, because Albillar allegedly “loosen[ed] the
definition of gang intent,” and the court’s sua sponte duty derives from “[t]he
majority opinion in Albillar, as well as Justice Werdegar's concurrence [in
Albillar], [which] confirm the ‘in association’ element is indeed a technical term
susceptible of misunderstanding and misuse....”

19
20

24
25
26
27
28

Defendant's argument misconstrues Albillar, which did not give a technical, legal
meaning to the statutory language of section 186.22, subdivision (b). In her
separate opinion in Albillar, Justice Werdegar only concurred as to the majority's
discussion of section 186.22, subdivision (a)'s substantive gang offense. However,
38

1

she strongly dissented as to the majority opinion's conclusion that the gang
enhancement in that case was supported by substantial evidence as to the “benefit”
and “association” elements, particularly the majority opinion's primary reliance on
the expert's opinion to provide that substantial evidence. (Albillar, supra, 51
Cal.4th at pp. 68, 70–73 (conc. & dis. opn by Werdegar, J.).) The dissent also took
strong exception to the majority opinion's definition of “in association with,” and
declared it rendered the language of section 186.22, subdivision (b) redundant. (Id.
at pp. 73–74.) The dissent concluded the jury's findings on the gang enhancements
should be reversed because it “necessarily relied on the construction of the phrase
provided by the prosecutor, a construction neither consistent with the statute nor
endorsed by the majority.” (Id. at p. 74.)

2
3
4
5
6

Justice Werdegar did not advocate a specific definition for “in association with,”
but criticized the majority opinion for reliance on the expert's opinion to provide
substantial evidence in light of the prosecutor's purported erroneous definition of
the phrase.

7
8
9

In any event, defendant has failed to show that the statutory language, “committed
for the benefit of, at the direction of, or in association with any criminal street
gang” (§ 186.22, subd. (b)(1)) has a definition that differs from its nonlegal
meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574–575; People v. Poggi
(1988) 45 Cal.3d 306, 327.) Indeed, Justice Werdegar's dissent cited to a definition
of “associate” from the “Merriam–Webster's Eleventh Collegiate Dictionary
(2004).” (Albillar, supra, 51 Cal.4th. at p. 70, fn. 2 (dis. & conc. opn. of Werdegar,
J.).) “‘When a word or phrase “‘is commonly understood by those familiar with
the English language and is not used in a technical sense peculiar to the law, the
court is not required to give an instruction as to its meaning in the absence of a
request.’” [Citations.]’ [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616,
670.) Therefore, having failed to request a clarifying instruction, defendants
forfeited their objection. (People v. Russell (2010) 50 Cal.4th 1228, 1273; People
v. Jennings, supra, 50 Cal.4th at p. 671.)

10
11
12
13
14
15
16
17

Even if the argument were preserved, we would not find any prejudice. (People v.
Gamache (2010) 48 Cal.4th 347, 376 (Gamache); People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 101.) Officer Finney explained at length what it meant to
commit a crime in association with or for the benefit of a gang.

18
19
20

Ruiz, 2012 WL 4076669, at *35–36.
b.

21

Federal Standard and Analysis

The same federal standard recited in claim four, supra, applies here, and for essentially the

22
23

same reasons, the claim fails. The state court determined that the instruction complied with

24

California law. In addition, the state court reasonably determined that the phrase “in association

25

with” is commonly understood and is not used in a technical sense. The court further found no

26

prejudice since Officer Finney detailed and explained the term. Petitioner fails to demonstrate

27

how the instruction was so erroneous that it violated his due process rights. The claim should be

28

denied.
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6.

Instructional Error – Gang Evidence and Enhancements
a.

State Court Opinion

Petitioner next claims the state court’s instructions on gang evidence and gang
enhancements were erroneous. The Fifth DCA denied the claim as follows:
Defendant challenges the instructions regarding the jury's consideration of the
gang evidence, and contends these instructions overstated and erroneously defined
the extent to which the jury could rely on the gang evidence to convict him of the
substantive offenses.
“‘It is well established in California that the correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of
an instruction or from a particular instruction. [Citations.] “[T]he fact that the
necessary elements of a jury charge are to be found in two instructions rather than
in one instruction does not, in itself, make the charge prejudicial.” [Citation.] “The
absence of an essential element in one instruction may be supplied by another or
cured in light of the instructions as a whole.” [Citation.]’ [Citation.]” (People v.
Bolin (1998) 18 Cal.4th 297, 328.) [N.9]
[N.9] Defendant raises a series of instructional issues on appeal. He failed
to object to or raise any of these same instructional challenges during trial.
Defendant asserts that he has not forfeited review of these issues since the
alleged instructional errors affected his substantial rights. In the alternative,
he claims that his defense attorney's failure to object to these issues
constitutes prejudicial ineffective assistance. Defendant is correct that an
instructional error that affects the defendant's substantial rights may be
reviewed on appeal despite the absence of an objection. (§ 1259; People v.
Prieto (2003) 30 Cal.4th 226, 247; People v. Smithey (1999) 20 Cal.4th
936, 976, fn. 7.) We will therefore address the merits of his various
instructional challenges.

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A. Background

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The jury received several instructions regarding the limited purpose and
consideration of the gang evidence and the expert's testimony on that topic.

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CALCRIM No. 303 stated:
“During the trial, certain evidence was admitted for limited purpose. You
may consider that evidence only for that purpose and for no other.”
CALCRIM No. 332 addressed the testimony of an expert witness:
“Witnesses were allowed to testify as experts and to give opinions. You
must consider the opinions, but you are not required to accept them as true
or correct. The meaning and importance of any opinion are for you to
decide.
“In evaluating the believability of an expert witness, follow the instructions
about the believability of witnesses generally.
“In addition, consider the expert's knowledge, skill, experience, training,
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and education, the reasons the expert gave for any opinion, and the facts or
information on which the expert relied in reaching that opinion.
“You must decide whether information on which the expert relied was true
and accurate. You may disregard any opinion that you find unbelievable,
unreasonable, or unsupported by the evidence.
“An expert witness may be asked a hypothetical question. The hypothetical
question asked the witness to assume certain facts are true and to give an
opinion based on the assumed facts. It is up to you to decide whether an
assumed fact has been proved.
“If you conclude that an assumed fact is not true, consider the affect of the
expert's reliance on that fact in evaluating the expert's opinion.”

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In CALCRIM No. 360, the jury was cautioned regarding the limited admissibility
of Detective Finney's testimony about the statements made by Tierre Hester, Sr.,
that defendant was a member of ESC:
“Detective Josh Finney testified that, in reaching his conclusions as an
expert witness, he considered statements by a Tierre Hester, Sr. You may
consider those statements only to evaluate the expert's opinion. Do not
consider those statements as proof that the information contained in the
statement or statements is true.”

13
CALCRIM No. 1403, the limited admissibility of gang evidence, stated:
14

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“You may consider evidence of gang activity only for the limited purpose
of deciding whether the defendant acted with the intent, purpose, and knowledge
that are required to prove the gang-related crimes and enhancements charged, or
the defendant had a motive to commit the crimes charged. [¶] You may also
consider this evidence when you evaluate the credibility or believability of a
witness and when you consider the facts and information relied on by an expert
witness in reaching his opinion. [¶] You may not consider this evidence for any
other purpose. You may not conclude from this evidence that the defendant is a
person of bad character or that he has a disposition to commit crimes.” (Italics
added.)

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B. Analysis

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Defendant contends CALCRIM No. 1403 “grossly overstated” the purposes for
which the gang evidence could be considered in this case, and “grossly fails to
specify and segregate the various types of gang and other crimes evidence
admitted for various purposes.”

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Given its inflammatory impact, “[g]ang evidence should not be admitted at trial
where its sole relevance is to show a defendant's criminal disposition or bad
character as a means of creating an inference the defendant committed the charged
offense.” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) “Thus, as [a]
general rule, evidence of gang membership and activity is admissible if it is
logically relevant to some material issue in the case, other than character evidence,
is not more prejudicial than probative and is not cumulative.” (Albarran, supra,
149 Cal.App.4th at p. 223.) “Evidence of the defendant's gang affiliation—
including evidence of the gang's territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like—can help prove identity,
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motive, modus operandi, specific intent, means of applying force or fear, or other
issues pertinent to guilt of the charged crime. [Citations.]” (Hernandez, supra, 33
Cal.4th at p. 1049.)
The trial court “must carefully scrutinize gang-related evidence before admitting it
because of its potentially inflammatory impact on the jury.” (Albarran, supra,149
Cal.App.4th at p. 224.) Despite its potential for prejudice, however, gang evidence
“is not insulated from the general rule that all relevant evidence is admissible if it
is relevant to a material issue in the case other than character, is not more
prejudicial than probative, and is not cumulative. [Citations.]” (Samaniego, supra,
172 Cal.App.4th at p. 1167.) “The People are entitled to ‘introduce evidence of
gang affiliation and activity where such evidence is relevant to an issue of motive
or intent.’ [Citation.]” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)
“Gang evidence is relevant and admissible when the very reason for the underlying
crime, that is the motive, is gang related. [Citation.]” (Samaniego, supra, 172
Cal.App.4th at pp. 1167–1168.) Gang evidence may also be relevant on the issue
of a witness's credibility. (Id. at p. 1168.)
As given in this and other cases, including the language complained of by
defendant, CALCRIM No. 1403 “is neither contrary to law nor misleading. It
states in no uncertain terms that gang evidence is not admissible to show that the
defendant is a bad person or has a criminal propensity. It allows such evidence to
be considered only on the issues germane to the gang enhancement, the motive for
the crime and the credibility of witnesses.” (Samaniego, supra, 172 Cal.App.4th at
p. 1168.) In addition, CALCRIM No. 332 has also been approved regarding the
limited admissibility of a gang expert's testimony. (Vang, supra, 52 Cal.4th at p.
1050.) The jury herein was correctly instructed on the limited admissibility of gang
evidence.

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Defendant also asserts the court had a sua sponte duty to give an additional
limiting instruction, similar to former CALJIC No. 2.50.2, that the jury could not
consider evidence of other gang crimes unless that evidence was proven by a
preponderance of the evidence. CALJIC No. 2.50.2 defined the preponderance
evidentiary standard. The preponderance standard is at the lowest end of the
spectrum, and is more typical in civil than criminal cases. (Addington v. Texas
(1979) 441 U.S. 418, 423.) A preponderance of the evidence standard of proof
merely requires a finding that the fact to be proven is more likely than not.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 852.) The jury was
instructed to consider the instructions as a whole (CALJIC No. 1.01). The
instructions as a whole clearly indicated that the prosecution had the burden of
proving the defendant guilty of all charged offenses beyond a reasonable doubt.
(CALCRIM No. 220.) Even assuming the trial court had a sua sponte duty to
provide the jurors with a definition of “preponderance of the evidence,” it is not
reasonably likely the jury misunderstood the instructions in the manner suggested
by defendant. (See People v. Clair (1992) 2 Cal.4th 629, 662–663.)
Defendant asserts that CALCRIM No. 360, about the limited consideration of
Hester's statements to Detective Finney, was inconsistent with CALCRIM No.
332, about the consideration of the expert's opinion testimony. This argument is
also meritless based on the entirety of the instructions. The jury was instructed
about the limited purpose of certain evidence (CALCRIM No. 303), and it could
not consider Hester's statements to Finney as proof that the information contained
in the statement or statements is true. (CALCRIM No. 360).
Ruiz, 2012 WL 4076669, at *28–30.
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b.

Federal Standard and Analysis

The same standard for instructional errors previously set forth applies. Here as well, the

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claim fails because the state court determined that the jury instructions were proper under

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California law. The federal court is bound by the state court interpretation of its law.

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Waddington, 555 U.S. at 192 n.5.

6

Petitioner complains that an additional limiting instruction on the use of gang evidence

7

should have been given, since the instructions permitted the jury to use the gang evidence for

8

improper purposes. As noted by the appellate court, however, the jury was instructed in no

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uncertain terms that the evidence could not be used to find that Petitioner was a bad person or had

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a criminal propensity. The jury was instructed that it could consider the evidence only for

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purposes of the gang enhancement, the motive for the crime, and the credibility of witnesses.

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Even if the Court could consider the claim, Petitioner fails to demonstrate how the instructions as

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given were so erroneous as to deprive him of a fair trial. The claim should be rejected.

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7.

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Instructional Error – CALCRIM No. 373
a.

State Court Opinion

In his next ground for relief, Petitioner argues that the trial court erred by instructing the

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jury with CALCRIM No. 373 on unjoined perpetrators. The Fifth DCA rejected the claim as

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follows:

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Defendant next contends the court erroneously instructed the jury with CALCRIM
No. 373, not to speculate about the absence of unjoined perpetrators. Defendant
argues the instruction violated his due process rights because it prevented the jury
from speculating why Ashli Winters and Terrance Ellis were not being prosecuted
for their purported involvement in the barbershop robberies.

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A. Background

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The jury received CALCRIM No. 373 as follows:

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“The evidence shows that another person may have been involved in the
commission of the crimes charged against the defendant. There may be
many reasons why someone who appears to have been involved might not
be a co-defendant in this particular trial. [¶] You must not speculate about
whether that other person has been or will be prosecuted. Your duty is to
decide whether the defendant on trial here committed the crimes charged.”
(Italics added.)
Defendant did not object to this instruction.
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B. Analysis
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Defendant contends this instruction was erroneous because it prevented the jury
from “speculating” about the prosecution testimony of Terrance Ellis and Ashli
Winters. Defendant asserts his constitutional rights were violated because the jury
should have been permitted to consider “what effect potential future prosecution
had on these witnesses.... Jurors needed to fully air out whether these witnesses'
accounts were the result of serious fears of prosecution of themselves and others
the defense argued were covering for.” Defendant asserts that jury could have
construed the instruction “to limit their discussion of why Winters or Ellis were
not on trial too—and whether they would be prosecuted in the future.”

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First, the entirety of the record demonstrates that CALCRIM No. 373 was directed
at the complete absence of Patrick Harris from this case, either as a codefendant or
a witness for either side. The prosecution introduced overwhelming evidence that
defendant and Harris committed the barbershop robberies together. Indeed, Harris
was initially charged with defendant in this case, but the prosecution opted to try
the case against defendant only. In any event, the plain language of the instruction
was directed to the absence of Harris as a codefendant in this case.

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Second, CALCRIM No. 373 has been approved as a correct statement of the law.
The instruction “does not tell the jury it cannot consider evidence that someone
else committed the crime. [Citation.] It merely says the jury is not to speculate on
whether someone else might or might not be prosecuted.” (People v. Farmer
(1989) 47 Cal.3d 888, 918–919, italics in original.)

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Third, to the extent the instruction was erroneous, any error is harmless given the
entirety of the instruction. In People v. Brasure (2008) 42 Cal.4th 1037 (Brasure),
the trial court instructed the jury with the predecessor instruction to CALCRIM
No. 373, which was CALJIC No. 2.11.5, and stated:
“‘There has been evidence in this case indicating that a person other than a
defendant was or may have been involved in the crimes for which the
defendant is on trial. [¶] There may be many reasons why that person is not
here on trial. Therefore, do not discuss or give any consideration as to why
the other person is not being prosecuted in this trial or whether he has
been or will be prosecuted. Your sole duty is to decide whether the People
have proved the guilt of the defendant on trial.’” (Brasure, supra, 42
Cal.4th at p. 1055, fn. 12, italics added.)
Brasure held the trial court should not have given CALJIC No. 2.11.5 “in
unmodified form” with regard to two prosecution witnesses who were accomplices
or possible accomplices in that case. (Brasure, supra, 42 Cal.App.4th at p. 1055.)
However, Brasure also held the instructional error was not prejudicial because the
jury received a full set of instructions on witness credibility and assessing the
testimony of accomplices, “including the direction to consider the existence of any
‘bias, interest, or other motive’ on a witness's part (CALJIC No. 2.20) and to view
the testimony of an accomplice with caution (CALJIC No. 3.18). Where the jury
has been so instructed, we have repeatedly held, giving CALJIC No. 2.11.5 is not
prejudicial error.” (Id. at p. 1055.)
“‘When the instruction is given with the full panoply of witness credibility
and accomplice instructions, as it was in this case, [jurors] will understand
that although the separate prosecution or nonprosecution of coparticipants,
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and the reasons therefor, may not be considered on the issue of the charged
defendant's guilt, a plea bargain or grant of immunity may be considered as
evidence of interest or bias in assessing the credibility of prosecution
witnesses.’” (Brasure, supra, 42 Cal.App.4th at pp. 1055–1056.)

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As applied to the instant case, the pattern instruction for CALCRIM No. 373
includes the option of bracketed closing language which states: “[This instruction
does not apply to the testimony of
<insert names of testifying
coparticipants>.]” The Bench Notes to CALCRIM No. 373 state that “[i]f other
alleged participants in the crime are testifying, this instruction should not be given
or the bracketed portion should be given exempting the testimony of those
witnesses.” The Bench Notes further state that “[i]t is not error to give the first
paragraph of this instruction if a reasonable juror would understand from all the
instructions that evidence of criminal activity by a witness not being prosecuted in
the current trial should be considered in assessing the witness's credibility.” (See
also People v. Fonseca (2003) 105 Cal.App.4th 543, 549–550.)

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To the extent that the instruction may have been erroneous as to the prosecution
testimony of Ellis and Winters, any error was harmless. The jury was well aware
that Ellis was initially considered a suspect, Winters had been advised that she
faced prosecution if she had shielded the suspects, and that Winters testified under
a grant of immunity. More importantly, the jury herein was also instructed on the
full range of factors to consider the credibility of witnesses pursuant to CALCRIM
No. 226, including whether the witness' testimony was influenced by bias,
prejudice, a personal relationship with someone involved in the case, or a personal
interest in how the case was decided; the witness' attitude about the case or about
testifying; and whether the witness was promised immunity or leniency in
exchange for his or her testimony. The jury also received CALCRIM No. 318, to
determine whether a witness' prior inconsistent statements were true or false. Any
error in giving CALCRIM No. 373 without the bracketed language was thus
harmless. (Brasure, supra, 42 Cal.App.4th at p. 1055.)
Ruiz, 2012 WL 4076669, at *39–41.
b.

Federal Standard and Analysis

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The federal standard for instructional error previously set forth applies to this claim as

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well. The claim fails because the state court concluded that CALCRIM No. 373 was a correct

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statement of the law. Therefore, this Court is bound by that ruling. Moreover, a reasonable jurist

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could have concluded that the instruction did not deprive Petitioner of a fair trial. It was clear that

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the instruction was directed at the absence of Petitioner’s co-defendant, Patrick Harris, who was

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tried separately. In addition, the instruction did not preclude the jury from speculating on whether

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a witness committed the crime, only whether someone else might or might not be prosecuted.

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Finally, the state court reasonably concluded that any error was harmless. As noted by the

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appellate court, the jury knew that Ellis was initially considered a suspect, and that Winters had

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been granted immunity in exchange for her testimony. Any alleged error could have had no
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effect on the jury’s verdict. The claim should be denied.
8.

Instructional Error – CALCRIM No. 376
a.

State Court Opinion

In a related claim, Petitioner contends the trial court erred by instructing the jury with
CALCRIM No. 376. The Fifth DCA denied the claim as follows:
Defendant argues the court erroneously instructed the jury with CALCRIM No.
376, that the jury may consider defendant's possession of recently stolen property
if there was other supporting evidence of guilt. Defendant argues the pattern
instruction reduced the prosecution's burden of proof as to identity and permitted
an irrationally permissive inference of guilt as to the charged offenses. Defendant
did not object to this instruction.
As defendant acknowledges, this argument has been repeatedly rejected.
CALCRIM No. 376, like its predecessor instruction, CALJIC No. 2.15, “is an
instruction generally favorable to defendants; its purpose is to emphasize that
possession of stolen property, alone, is insufficient to sustain a conviction for a
theft-related crime. [Citations.] In the presence of at least some corroborating
evidence, it permits—but does not require—jurors to infer from possession of
stolen property guilt of a related offense such as robbery or burglary.” (Gamache,
supra, 48 Cal.4th at p. 375.) CALCRIM No. 376 is thus appropriate in cases
charging robbery and/or theft. (Gamache, supra, 48 Cal.4th at p. 375.)
Moreover, the California Supreme Court has previously held CALJIC No. 2.15
“does not establish an unconstitutional mandatory presumption in favor of guilt
[citation] or otherwise shift or lower the prosecution's burden of establishing guilt
beyond a reasonable doubt [citations].” (Gamache, supra, 48 Cal.4th at p. 376.)
On this point, the relevant language in CALCRIM No. 376 and CALJIC No. 2.15
is “linguistically synonymous” and “constitutionally indistinguishable.” (People v.
Solorzano (2007) 153 Cal.App.4th 1026, 1036; see also People v. Moore (2011)
51 Cal.4th 1104, 1130–1131.) We are bound to follow and apply the California
Supreme Court's holding and reject defendant's contrary assertions. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

20

Ruiz, 2012 WL 4076669, at *41.

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b.

22

Federal Standard and Analysis

The standard for instructional error also applies here. The claim is without merit insofar

23

as the state court determined that CALCRIM No. 376 correctly stated the law concerning the use

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of evidence of possession of stolen property. In fact, the instruction has been found to be

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defendant-friendly since it emphasizes that possession of stolen property, by itself, is insufficient

26

to find a defendant guilty of a theft-related crime. This Court is bound by the state court’s

27

interpretation of its law. In addition, Petitioner fails to show how a rational jurist could not find

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that the instruction did not deprive Petitioner of a fair trial.
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9.

Statutory Speedy Trial Rights
a.

State Court Opinion

Petitioner next claims the trial court erred by denying his motion to dismiss based on

4

statutory speedy trial violations. The appellate court examined the pretrial record and then

5

rejected the claim, concluding as follows:

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In this case, as in Sutton, the entirety of the record demonstrates that defendant's
statutory right to a speedy trial pursuant to section 1382 was not violated because
there was good cause to grant the continuances in this case. On July 2, 2009,
defendant waived time for trial plus for an additional 10 court days. The jury trial
on the consolidated information was set for December 7, 2009. On that day,
however, the court determined that Harris's competency had still not been
resolved. On both December 7 and 9, 2009, defendant did not object to continuing
the matter until the competency issue was clarified, and even agreed to trail the
jury trial to December 14, 2009.
Defendant's time waiver remained in effect until December 14, 2009, when he
objected to the court's decision to further continue the jury trial on the consolidated
information. However, codefendant Harris's public defender stated that he was not
prepared for the jury trial on the consolidated information. In addition, the court
conducted an in camera hearing and determined the existence of a conflict required
relief of Harris's public defender, and conflict counsel had to be appointed.
At that point, defendant and codefendant Harris were charged in the consolidated
information with the barbershop carjacking and robberies. Based on Sutton, the
court did not abuse its discretion, pursuant to section 1382 and section 1050.1,
when it decided to continue the trial because Harris's public defender was not
prepared; a valid conflict existed between Harris and his public defender; the court
had to relieve the public defender; and the court-appointed conflict counsel who
stated that he was not prepared for trial that day. Thus, on January 22, 2010, the
court properly denied defendant's motion to dismiss for the alleged violation of his
right to a speedy trial based on the December 14, 2009, continuance.
In addition, the court did not abuse its discretion when it decided to grant another
continuance on January 22, 2009. As set forth ante, Harris's newly-appointed
attorney stated he was not ready for trial on the consolidated information because
of voluminous discovery. Again, defendant was still charged with codefendant
Harris in the consolidated information with the barbershop robberies and
carjacking. Based on those circumstances, the court properly found good cause to
continue the consolidated matter over defendant's objections. For the same
reasons, on April 28, 2010, the court properly denied defendant's subsequent
motion to dismiss for the alleged violation of his right to a speedy trial.
After defendant's case was severed from codefendant Harris and the other two
codefendants, defendant filed another motion to dismiss during pretrial motions in
limine. The court did not abuse its discretion when it denied this motion, and
properly found the prosecution had not abused the consolidation process when it
sought to file the consolidated information against defendant and codefendant
Harris. For similar reasons, the court properly denied defendant's new trial motion
to the extent it was based on the alleged violation of his right to a speedy trial.
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As in Sutton, the consolidated cases were properly joined in this case, the court
properly granted continuances in this case for good cause, and it did not abuse its
discretion when it denied defendant's motion to dismiss for the alleged violation of
his right to a speedy trial. As explained ante, the relevant factors to determine good
cause under section 1382 are “(1) the nature and strength of the justification for the
delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or
the prosecution that is likely to result from the delay.” (Sutton, supra, 48 Cal.4th at
p. 546, fn. omitted; Hajjaj, supra, 50 Cal.4th at pp. 1196–1197.) As applied to this
case, the nature and strength of the justification for the delays were valid based on
the reasons expressed by the attorneys for codefendant Harris. The duration of the
delays were not unreasonable, since defendant's jury trial began within six months
after he withdrew his time waiver. More importantly, there is no evidence that
defendant suffered any prejudice because of the delay. Defendant never stated that
any witnesses or evidence became unavailable because of the delay. Indeed, the
six-month delay proved beneficial to defendant because the prosecution ultimately
withdrew its opposition to defendant's numerous motions to sever his case from
that of codefendant Harris and the other codefendants charged in the consolidated
information.

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We further find that defendant's right to a speedy trial was not violated upon a
consideration of federal constitutional factors. As explained ante, the relevant
criteria are: “Length of delay, the reason for the delay, the defendant's assertion of
his right, and prejudice to the defendant.” (Barker, supra, 407 U.S. at p. 530, fn.
omitted.) The length of the delay serves as a “triggering mechanism.” (Ibid.)
Generally, a post-accusation delay is considered “ ‘presumptively prejudicial’ ”
when it approaches one year. (Doggett v. United States (1992) 505 U.S. 647, 652,
fn. 1.) In this case, however, there was only a six-month delay between defendant's
last waiver of time and the subsequent start of his jury trial.
The second factor, the reasons for the delay, requires “different weights [to] be
assigned to different reasons.” (Barker, supra, 407 U.S. at p. 531.) “A deliberate
attempt to delay the trial in order to hamper the defense should be weighted
heavily against the government. A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant. Finally, a valid reason, such as a
missing witness, should serve to justify appropriate delay.” (Ibid., fn. omitted.) As
explained ante, the superior court properly found that the prosecution did not
abuse the process when it sought to consolidate the matters, and there was
abundant good cause to grant the continuances based on the representations from
codefendant's Harris's two attorneys that they were not ready for trial at the
relevant times.

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The third factor, the defendant's assertion of his right, weighs in defendant's favor,
since he explicitly asserted his right to a speedy trial beginning on December 14,
2009. (Barker, supra, 407 U.S. at pp. 531–532.)

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However, the fourth factor, the prejudice to the defendant, clearly weighs against
him. This factor is assessed in light of the interests a speedy trial was designed to
protect: preventing “oppressive” pretrial incarceration, minimizing “anxiety and
concern of the accused,” and “limit[ing] the possibility that the defense will be
impaired.” (Barker, supra, 407 U.S. at p. 532, fn. omitted.) Whether the defense is
impaired is the most serious consideration for this final factor. (Ibid.) As explained
ante, defendant never made any showing of prejudice, oppressing pretrial
incarceration, or that the defense was impaired by the six-month delay in this case.
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More importantly, defendant actually received a benefit given the prosecution's
ultimate decision to withdraw its opposition to his repeated motions for severance,
and he was tried by himself only for the barbershop robberies and carjacking.
Balancing these factors, we conclude defendant's constitutional right to a speedy
trial was not violated.

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Ruiz, 2012 WL 4076669, at *18–20.
b.

Federal Standard

A speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution.

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Beavers v. Haubert, 198 U.S. 77 (1905). The right to a speedy trial is ‘fundamental’ and is

9

imposed by the Due Process Clause of the Fourteenth Amendment on the States. Kloper v. North

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Carolina, 386 U.S. 213 (1967). The right to a speedy trial is evaluated pursuant to the factors set

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forth in Barker v. Wingo, 407 U.S. 514 (1972): 1) the length of delay; 2) the reason for the delay;

12

3) the defendant's assertion of his right; and 4) prejudice to the defendant. Id. at 530.

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c.

Analysis

The claim is without merit. First, Petitioner presents only a state law claim. He alleges

15

the state did not comply with statutory law. See Pet. at 5. As set forth above, the state court

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determined that Cal. Penal Code § 1382 had not been violated. This Court is bound by that

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determination, and habeas relief is foreclosed. See Estelle, 502 U.S. at 68 (“We have stated many

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times that ‘federal habeas corpus relief does not lie for errors of state law.’”) (quoting Lewis, 497

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U.S. at 780); Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (federal courts are

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bound by state court rulings on questions of state law).

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Even if the Court were to consider a speedy trial claim under the Sixth Amendment, the

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result is the same. The appellate court reasonably applied the four-factor speedy-trial standard set

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forth in Barker, 407 U.S. at 530. First, the court noted that the delay had only been six months,

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and such a delay is not presumptively prejudicial. The Supreme Court has held that “until there is

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some delay which is presumptively prejudicial,” there is no need to inquire into the other three

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Barker factors. Id. The Supreme Court further stated that “[d]epending on the nature of the

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charges, the lower courts have generally found post[-]accusation delay 'presumptively prejudicial'

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at least as it approaches one year.” Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). Since
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the delay of six months here was not presumptively prejudicial, there is no need to inquire further.

2

The state court also determined that the second factor, reasons for the delay, weighed

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against Petitioner. The court noted that there was abundant good cause for the delay. The third

4

factor weighed in favor of Petitioner since he did assert his right to a speedy trial. However, the

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fourth factor weighed against him since there was no showing that the delay prejudiced his case

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in any way. Accordingly, the state court reasonably determined that Petitioner’s right to a speedy

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trial was not violated. For the foregoing reasons, the claim should be denied.

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10.

Cumulative Error

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Petitioner claims that the cumulative effect of the errors arose to the level of a

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constitutional violation. “Multiple errors, even if harmless individually, may entitle a petitioner

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to habeas relief if their cumulative effect prejudiced the defendant.” Ceja v. Stewart, 97 F. 3d

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1246, 1254 (9th Cir. 1996) (citing Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992)); see also

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Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002). However, the Ninth Circuit has also

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recognized that where there is no single constitutional error, nothing can accumulate to the level

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of a constitutional violation. See Rup v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). In this case,

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no errors occurred, and hence, there can be no cumulative error.

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11.

Calculation of Presentence Credits

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Petitioner alleges that the trial court erred in its calculation of his presentence credits by

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failing to award him with one day. The government conceded the claim on direct appeal, and the

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state court corrected the record to reflect the proper amount of credit. Therefore, the claim is

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moot.

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IV.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus

(Doc. 1) be DENIED with prejudice on the merits.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy of this Findings and Recommendation, any party
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1

may file written objections with the Court and serve a copy on all parties. Such a document

2

should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies

3

to the Objections shall be served and filed within ten court days (plus three days if served by

4

mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling

5

pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections

6

within the specified time may waive the right to appeal the Order of the District Court. Martinez

7

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

March 19, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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