Easter v. Foulk

Filing 29

ORDER DENYING PETITION for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment in Favor of Respondent; and ORDER DECLINING to Issue a Certificate of Appealability signed by Magistrate Judge Stanley A. Boone on 1/29/2015. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BRAIN EASTER,

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Case No. 1:14-cv-00732- SAB-HC

Petitioner,

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v.

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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS, DIRECTING
CLERK OF COURT TO ENTER
JUDGMENT IN FAVOR OF RESPONDENT,
AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

FRED FOULK,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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18 pursuant to 28 U.S.C. § 2254. Respondent is the Warden of High Desert State Prison, and is
19 represented in this action by Kevin L. Quade, Esq., of the California Attorney General’s Office.
20 Both parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. §
21 636(c).
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I.

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BACKGROUND

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Petitioner is currently in the custody of the California Department of Corrections and
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Rehabilitation (CDCR) pursuant to an August 24, 2011, judgment of the Superior Court of
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California, County of Fresno, following his conviction by jury trial on two counts of robbery,
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with a firearm enhancement on one count and a gang enhancement on both counts, and one count
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1 of active participation in a criminal street gang. (Pet., ECF No. 1). He was sentenced to serve a
2 term of 27 years 4 months in prison. (LD1 5).
Petitioner timely filed a notice of appeal. On August 28, 2013, the California Court of

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4 Appeal, Fifth Appellate District, affirmed the judgment. (LD 5). Petitioner then filed a petition
5 for review in the California Supreme Court. (LD 6). On December 11, 2013, the petition was
6 summarily denied. (LD 7).
On May 8, 2014, Petitioner filed the instant federal petition for writ of habeas corpus in

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8 this Court. The Petition presents the following two grounds for relief: (1) the trial court erred by
9 not bifurcating the gang enhancements and gang count from the robbery counts and (2) his trial
10 counsel was ineffective for not challenging the out-of-court identifications of Petitioner.
11 Respondent filed an answer to the petition on August 28, 2014. Petitioner filed a traverse on
12 December 29, 2014.
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II.

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STATEMENT OF FACTS2

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A. Prosecution Evidence

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Robbery of Josh Franco (count II; defendants Williams,
Thompson, Easter)

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Josh Franco, a high school teacher, placed a cell phone for sale on
Craigslist, an Internet sales site. Franco listed his personal cell
phone as the contact number.

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At 11:00 a.m. on September 7, 2009, Franco received a call from a
408 area code. A man said he wanted to meet and look at the
phone. The caller, later identified as defendant Williams, said he
needed to delay the meeting because he was in church. At 1:30
p.m., Williams again called Franco and said to meet him in a
church parking lot at Ashlan and Hughes.

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At 3:00 p.m., Franco drove into the church's parking lot. Williams
called and said he was running late. Franco waited for 15 minutes
and was about to leave when he saw a black SUV driving on the

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“LD” refers to the documents lodged by Respondent with his Answer.
“LD 5” is the opinion of the Court of Appeal in People v. Easter et al., No. 5063263, 2013 WL 4683011 (Cal. App.
2013).
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The Fifth District Court of Appeal’s summary of the facts in its August 28, 2013, opinion is presumed correct. 28
U.S.C. §§ 2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the
Court adopts the factual recitations set forth by the state appellate court. See Vasquez v. Kirkland, 572 F.3d 1029,
1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our summary of the facts of the
crime.”).

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adjacent street. The SUV pulled into an apartment complex.
Franco believed there were more than three people in the vehicle
and thought the occupants were looking at him.
About five minutes later, three African–American males walked
across the street and approached Franco's truck. The three men
tried to open the front passenger door, but it was locked. Franco
got out of his vehicle and spoke to the men. One of the men asked
to see the cell phone. Franco believed this man was the person who
called him (Williams). He looked at the phone and said it was in
good shape.
Within seconds, another man in the group pulled a gun and said: “
‘Give us everything you got.’ ” Franco testified the gunman had
shoulder-length dreadlocks and a goatee. He was wearing a white
T-shirt, black shorts, and a black baseball cap. Williams and the
third man emptied Franco's pockets in about 10 seconds. The three
men then ran across the street, toward the apartment complex.
Franco testified none of the men said anything about gangs during
the robbery.
As we will explain, post, Williams and Thompson admitted their
participation in this robbery. Easter denied committing the crime.
Franco identified Easter as the suspect with the dreadlocks, and
said he was the gunman.

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Based on this offense, defendants Williams, Thompson, and Easter
were charged and convicted of count II, second degree robbery of
Franco. The jury found true the gang enhancement, and that Easter
personally used a firearm.

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Robbery of Nicholas Flechsing (count III; defendant Williams,
only)

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Nicholas Flechsing, a college student, listed his Xbox video game
console for sale on Craigslist. In the late morning or early
afternoon of September 9, 2009, Flechsing received a call from a
phone with a 408 area code. The caller, later identified as
Williams, said he wanted to buy the Xbox. Flechsing told Williams
to meet him at Fig Garden Village, and Williams agreed.

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Flechsing rode his bicycle to Fig Garden Village and waited for 20
minutes, but the prospective buyer did not appear. Flechsing called
him back, and the man said he was “taking a little bit longer than
usual.” Williams asked if they could meet somewhere else. They
agreed to meet at the corner of Ashlan and Palm. Flechsing rode
his bicycle there, but the man never showed up.
Flechsing made another call, and Williams said that he was on his
way. Flechsing rode his bicycle toward the railroad tracks at
Ashlan and Fruit, and waited for 5 to 10 minutes. Williams called
Flechsing and said he could see him down the street, and directed
Flechsing to meet him at the corner of Fruit and Swift.
Flechsing rode his bicycle to the new location. Williams was
standing on the street. Williams walked up to his bicycle.
Flechsing opened his backpack and showed the Xbox to Williams,

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and asked for $400.

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Flechsing testified that Williams started to grab his backpack.
Suddenly, another man appeared and pulled a handgun from his
waistband. The gunman was African–American, and his hair was
shoulder-length and in dreadlocks.

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Flechsing testified the gunman cocked the weapon, loaded the
chamber, and pointed the gun at his chest. The gunman ordered
Flechsing to give him his property. Flechsing gave Williams his
backpack with the Xbox; his cell phone; and his wallet, which
contained his identification and $200.
Williams and the gunman looked Flechsing “up and down,” and
then ran down the street. Flechsing started to ride away on his
bicycle. The gunman turned around and pointed his handgun at
Flechsing. Flechsing raised his hands and said, “ ‘I'm not going to
do anything.’ ” Williams and the gunman ran away. Flechsing
testified that neither suspect wore red or blue, and they did not say
anything about a gang during the robbery.

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As we will explain, post, Williams confessed to his involvement in
this robbery. Williams was separately charged and convicted of
count III, second degree robbery of Flechsing. Prior to trial,
Flechsing never identified anyone as the gunman or second
robbery suspect. Thompson and Easter were not charged with or
convicted of committing this robbery.

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Robbery of Garrett Gaynor (count I; defendants Williams,
Thompson, Easter)

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Garrett Gaynor listed his Blackberry Gold phone for sale on
Craigslist. Gaynor listed his own cell phone as the contact number.

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On September 9, 2009, the same day that Flechsing was robbed,
Gaynor received a call from a 408 area code from a man who
wanted to buy the Blackberry. Gaynor agreed to meet the man at a
particular location. The prospective buyer, later identified as
Williams, repeatedly called back and changed the location. Gaynor
finally told Williams that he would meet him after work. They
agreed to meet at the Walgreens parking lot at Ashlan and Marks.

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At 9:00 p.m., Gaynor arrived at Walgreens, parked his car, and
waited. Williams called him again and asked if he was there.
Gaynor said yes. Gaynor testified that three young African–
American men appeared at his car. Williams asked Gaynor if he
was selling a phone. Gaynor said yes. Williams was holding a
white T–Mobile cell phone.
Gaynor testified the second man was wearing a red baseball cap
and blue jeans. The third man had shoulder-length black hair,
which was in dreadlocks with red tips.
Gaynor got out of his vehicle and met the three men at the back of
his car. He showed them the Blackberry and handed it to Williams.
Williams examined the Blackberry and asked if it could hold a

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charge. Gaynor said he had the power plug and suggested they
walk to Walgreens to charge the phone. As the group started to
walk toward the store, Williams ran away with Gaynor's phone.
Gaynor testified that Williams ran toward an apartment complex.
The other two men asked Gaynor where Williams went. Gaynor
replied: “... I don't know, let's go get him. And as that started
happening, they had taken off, as well, across the street,” in the
same direction as Williams.
Gaynor testified: “I proceeded to follow them, or chase them.” The
two men ran toward an apartment complex's side gate. They went
inside, and the gate closed behind them.

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Gaynor ran to the gate, but it was locked. Gaynor testified that
when he got to the gate, the three men “were just all pretty much
standing there and the one individual came back out and put a gun
to my head....”
Gaynor testified the gunman was the man who was wearing the red
baseball hat. Gaynor testified Williams and the man with redtipped black dreadlocks were clearly visible to him. They stayed
inside the apartment gate, and they stood there and watched the
gunman.
Gaynor testified the gunman put the gun to his forehead and order
him to turn over everything he had, and threatened to kill him. The
gunman reached into Gaynor's pockets and took Gaynor's wallet
and personal cell phone. Williams and the man in the dreadlocks
stayed in their same location and watched. The gunman placed the
gun under Gaynor's chin and threatened to kill Gaynor if he turned
around.
After taking the property, the gunman ran back inside the
apartment gate, joined Williams and the other man, and all three
men ran away. Gaynor testified the three suspects never said
anything about gangs during the robbery.

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As we will explain, post, Gaynor identified Williams and
Thompson during an infield show-up on the night of the robbery
and said Thompson was the gunman. Gaynor later identified Easter
from a single photograph as the third suspect with the dreadlocks.
Williams and Thompson admitted their involvement in this
robbery. Easter denied committing the crime.
Based on this offense, Williams, Thompson and Easter were
charged and convicted of count I, second degree robbery of
Gaynor. The jury found true the gang enhancement, and that
Thompson personally used a firearm.

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INVESTIGATION OF GAYNOR ROBBERY
Discovery of handgun and stolen property

Around 10:10 p.m. on September 9, 2009, several officers
responded to the Walgreens parking lot and interviewed Gaynor
about the robbery. Based on Gaynor's information, the officers
spoke to the manager of the apartment complex on Ashlan and

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Marks. The manager's information led them to a particular
apartment. The tenant gave the officers permission to enter.

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Defendants Thompson and Williams were in the apartment. The
officers found Flechsing's stolen Xbox and videogames in the
living room, and his ATM card in another room.

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The officers found a large stereo speaker box in the bedroom. It
contained a nine-millimeter semiautomatic handgun and a
magazine. The magazine was loaded with live nine-millimeter
rounds and appeared to fit the weapon.
The same stereo speaker box also contained three cell phones:
Gaynor's Blackberry that he showed to Williams and he ran away
with; Gaynor's personal cell phone that was taken by the gunman;
and a white T–Mobile cell phone.

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Gaynor's identification of Thompson and Williams

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As the investigation continued on the night of September 9, 2009,
the officers drove Gaynor past two or three men standing on the
street, near the apartment complex, and asked Gaynor if any of
these men were the robbery suspects. Gaynor said no.

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Later that night, an officer escorted Gaynor to an infield show-up
of three other men: Williams, Thompson, and a third man. Easter
was not present.

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Gaynor immediately identified Thompson and Williams as two of
the robbery suspects, and said Thompson was the gunman. Gaynor
said he was 100 percent certain of the identifications. Gaynor said
the third man in the show-up was not involved in the robbery.8
The record implies that Thompson and Williams were arrested that
night.

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Williams's postarrest interview

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In the early morning hours of September 10, 2009, Detective
Mares interviewed Williams at the police substation. Mares
advised Williams of the warnings pursuant to Miranda v. Arizona
(1966) 384 U.S. 436, and Williams waived his rights. Williams
was 16 years old.

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Detective Mares asked Williams about the while T–Mobile cell
phone found in the apartment, next to Gaynor's stolen phones.
Williams said it was his cell phone and had a 408 area code.
Detective Mares determined that 14 calls were placed from
Williams's cell phone to Franco's cell phone. There were 10 calls
placed from Williams's cell phone to Gaynor's cell phone.

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During the interview, Williams admitted that he had been involved
in the robberies in the church parking lot (Franco), the Walgreens
parking lot (Gaynor), and the one involving the Xbox (Flechsing).
Williams said that at the Walgreens robbery of Gaynor, he ran
away with the victim's cell phone. He also said a gun was used.

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Detective Mares testified that Williams said a gun was also used

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during the robbery in the church parking lot, and two cell phones
were taken from the victim (Franco). Williams said the gunman's
name was “Alex” or “A–1.” Detective Mares testified that
Williams did not identify Easter as the gunman or a suspect in the
robbery.
As for the Xbox robbery of Flechsing, Williams said that he took
the victim's backpack and the Xbox, and ran away. Williams said
that a gun was also used during this robbery. He did not identify
the gunman.

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The cell phone picture of Easter

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Gaynor told the officers that the third robbery suspect was slightly
taller, and his hair was in dreadlocks with red tips. Later on
September 10, 2009, Detective Mares reviewed the photographs on
Williams's T–Mobile cell phone to see if anyone matched Gaynor's
description.

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Mares found a photograph on Williams's cell phone, identified as
exhibit No. 7, which showed two African–American males:
Williams, and a man with his hair in dreadlocks with red tips. The
cell phone also contained a photograph of Williams, Thompson,
and the man with the red-tipped dreadlocks. Officer Robert Yeager
reviewed the images and identified the man with the dreadlocks as
Brian Easter, based on Yeager's prior contacts with him.

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Gaynor's identification of Easter

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On September 10, 2009, Detective Mares showed Gaynor the
photograph of Williams and Easter, identified as exhibit No. 7, as
it was displayed on the white T–Mobile cell phone. Mares did not
reveal their identities, and he read the following admonition to
Gaynor:
“... I was in possession of a phone[,] that it was not my phone. I
told him that there was a photograph on this phone that I wanted
him to look at. I told him that I did not know who was in the
photograph, I did not know the name of the individual. And I told
him that, ‘It may or may not be involved in your case.’ ”

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Detective Mares testified that Gaynor looked at the cell phone
photograph and said both men were involved in the robbery.
Gaynor testified that he had already identified one man on the
night of the robbery, as the suspect who ran off with the
Blackberry (Williams). Gaynor identified the other man in the
photograph, with the red-tipped dreadlocks, as the third robbery
suspect. Gaynor said the man with the dreadlocks did not have the
gun.

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Gaynor also said he recognized the white T–Mobile phone which
contained the photograph because Williams was holding it during
the robbery.

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Franco's identification of Easter

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Also on September 10, 2009, Detective Mares showed Joshua
Franco the photograph of Williams and Easter, as depicted on the

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white T–Mobile cell phone. Mares did not identify the men, and
read the same admonition to Franco as he read to Gaynor.

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Franco identified Easter as the robbery suspect with the
dreadlocks, and said this man held the gun during the robbery in
the church parking lot. Franco also recognized the white T–Mobile
cell phone, and said the smaller suspect (Williams) used it during
the robbery.

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Easter was arrested on November 14, 2009.
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Photographic lineups

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Detective Mares showed Franco several “six-pack” photographic
lineups, which included pictures of Williams and Thompson.
Franco identified Thompson as the man who went through his
pockets during the robbery. Franco did not identify Williams from
the lineups.
Detective Mares never showed Franco or Gaynor any six-pack
photographic lineups with Easter's picture. Mares admitted that
was “not standard operating procedure.” Mares confirmed he only
showed a single photograph to Gaynor and Franco, Williams and
Easter were in that picture, and he showed the picture to the
victims after Williams had been identified.

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Detective Mares testified that he looked for the suspect who
Williams identified as “Alex” or “A–1,” but he never found such a
person.

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THE VICTIMS' TRIAL TESTIMONY AND IDENTIFICATIONS

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Garrett Gaynor

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Garrett Gaynor testified at trial that he identified Williams and
Thompson during an infield show-up on the night of the robbery.
Gaynor testified the police showed him several photographs to
identify the third suspect, but none of the photographs showed that
person. Gaynor testified he was finally shown a photograph of a
single person, and identified that person—Easter—as the third
suspect with the red-tipped dreadlocks.
Gaynor testified that Detective Mares showed him a photograph of
two men from a cell phone, which showed Williams and the
suspect with the dreadlocks. Gaynor testified he also looked at a
photograph with three individuals. When he looked at this picture,
he had already identified two of the men on the night of the
robbery, and he identified the third man as the suspect with the
dreadlocks. Gaynor did not think that he identified Easter from the
photographs which showed the suspects standing together.

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Gaynor testified that exhibit No. 3 showed the three men who
robbed him: the first man who spoke to him and ran off with the
Blackberry (Williams), the gunman who wore the hat (Thompson),
and the man with the red-tipped dreadlocks (Easter).

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Also at trial, Gaynor identified Thompson as the gunman in the red

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hat. Gaynor identified Easter as the suspect who wore his hair in
dreadlocks with red tips, even though Easter's hair was now in a
short buzz-cut. Gaynor identified Williams as the person who
called him about the Blackberry, met him at his car, and ran away
with the phone.

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Gaynor reviewed the photograph of the nine-millimeter
semiautomatic handgun found in the apartment on the night of the
robbery. Gaynor identified the firearm as the weapon the gunman
held at his head, which had a silver barrel and black handle.
Gaynor again identified the white T–Mobile cell phone as the
device which Williams was holding when they met in the parking
lot.

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Josh Franco

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Josh Franco testified that a few days after the robbery, the police
showed him a series of photographic lineups. Franco positively
identified one man as being involved in the robbery, but he was not
sure if that man was the gunman.
Franco testified he also looked at a photograph of two men. He
was read an admonition before he looked at this photograph, and
told that it might not be the suspect. He identified one man as the
gunman, and he was positive about the identification when he
made it.
At trial, Franco identified defendant Thompson as one of the
robbery suspects, and Thompson was not the gunman. He believed
Thompson was the man he identified in the photographic lineup.
Franco testified that he initially believed the man he identified in
the photographic lineup (Thompson), and the man in the single
photograph (Easter), were the same person, but later realized they
were different people.
Franco reviewed the photograph of the handgun found in the
apartment (Exhibit No. 26), and testified it was very similar to the
firearm used by the gunman during the robbery. Franco recognized
the silver barrel and the distinctive black handle.

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Nicholas Flechsing

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Nicholas Flechsing testified that about three days after the robbery,
Detective Torres showed him several photographic lineups.
Flechsing identified Williams from one of the lineups (Exhibit No.
43), and said he was “absolutely positive” that Williams was the
man who called him and met him on the street. Williams was not
the gunman. At trial, Flechsing identified Williams as the man who
met him on the street. Flechsing did not identify anyone from the
photographic lineups as the gunman.

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Flechsing testified the chrome-plated handgun with the black grip,
which was found in the apartment, was similar to the weapon used
by the gunman during the robbery.

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THE PROSECUTION'S GANG EXPERT

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As to counts I and II, the robberies of Gaynor and Franco, gang

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enhancements were alleged as to all three defendants (§ 186.22,
subd. (b)(1)). In count IV, defendants were charged with the
substantive offense of active participation in a criminal street gang
(§ 186.22, subd. (a)).

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Fresno Police Officer Ron Flowers testified as the prosecution's
gang expert. He had been a gang investigator with the Multi–
Agency Gang Enforcement Consortium (MAGEC) since 2003. He
worked specifically with African–American gangs in Fresno. He
had investigated close to 600 gang-related crimes. Flowers
identified gangs, validated an individual's gang membership, and
tracked crimes committed by gang members. Flowers had qualified
as a prosecution gang expert approximately 40 times.

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The “Playboyz” Gang

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Officer Flowers testified that the “Playboyz” is an African–
American criminal street gang. Flowers first became aware of the
Playboyz in 2004 or 2005, when a shooting occurred which
involved four victims. Flowers verified the four victims were
members of the Playboyz gang. Flowers validated the existence of
the Playboyz at that time.
“My partner and I were able to verify that there was a group that
called themselves the Playboyz here in Fresno [C]ounty, and
eventually we were able to identify members of that particular
group. And that was confirmed through certain crimes that
occurred in the city of Fresno.”
Officer Flowers testified the Playboyz's primary colors were blue
and red. Flowers acknowledged that blue was commonly claimed
by the Crips, while red was claimed by the Bloods. However,
Flowers explained that it was not unusual for a Fresno gang to
claim both red and blue. “It is not like Bloods and Crips. We have
gangs that have Bloods and Crips within themselves[,]” and “[i]t is
not unusual here in Fresno to find those two groups in one gang....”
Flowers testified that African–American gangs in Fresno and Los
Angeles had different philosophies about colors. For the gangs in
Fresno, colors were “not critical” and did not have “much of an
adverse effect as it does in Los Angeles.”
Officer Flowers believed there were approximately 34 to 35
members of the Playboyz in Fresno. Flowers personally knew three
or more members of the gang. Flowers had conversations with
members of the Playboyz about their lifestyles, loyalties, criminal
gang activities, membership, signs, colors, tattoos, and graffiti.
Flowers testified he reviewed about 60 police reports about the
activities of the Playboyz.
The Playboyz gang used the “Playboy” emblem from Hugh
Hefner's Playboy magazine as one of their symbols. The gang
members also configured their hands to appear like Playboy bunny
ears. Flowers had seen rivals mocking the same hand sign.
Flowers testified that the area under the Playboyz's “dominion of
control” was in northwest Fresno, between Herndon and

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McKinley, and Polk and Marks. The Playboyz did not claim that
area as its specific turf, but “there have been a lot of events specific
to this group within that area.”

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Flowers had also seen the word “Playboyz” used in gang writings
on clothing, documents, glass, and MySpace pages. However, he
had never seen any Playboyz-related graffiti in a particular area or
anywhere else in Fresno. Flowers explained that some gangs are
not “turf-oriented” and don't have issues over particular territories.

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Primary activities

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Officer Flowers testified that he had reviewed approximately 70 to
80 police reports involving members of the Playboyz gang.
Flowers testified the primary activity of the Playboyz gang was
robbery, in violation of section 211. Flowers's opinion was based
on his review of approximately 12 police reports involving
incidents where members of the Playboyz committed robberies,
from 2006 to 2009. Flowers testified the gang had “the pattern,
again the consistency of violating Penal Code [section] 211.”
Flowers testified he had also investigated homicides, shootings,
and firearm cases which involved members of that gang.

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Predicate offenses

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Flowers testified about several predicate offenses committed by
validated members of the Playboyz gang, based on his review of
certified copies of their convictions. These predicate offenses were
not committed by any of the defendants. In 2005, Christopher
Williams was convicted of murder (based on a vehicular
homicide), transportation of narcotics for sale, and possession of
cocaine base for sale. In 2006, Duane Perry was charged with
second degree robbery and convicted of attempted grand theft. In
2008, Anthony Skinner was convicted of illegal possession of a
weapon. In 2009, Rafael Houston pleaded guilty to illegal
possession of a weapon. In 2009, Robert Tyler was convicted of
illegal possession of a weapon; and in 2008, he was convicted of
vehicle theft.
On cross-examination, Flowers conceded that while these predicate
offenses were committed by members of the Playboyz gang, there
were no gang enhancements alleged or found true in those cases.
Flowers also conceded that none of the predicate offenses involved
robbery charges. Flowers further testified that he did not believe
anyone had been convicted of the substantive offense of active
participation in a criminal street gang as a member of the
Playboyz.

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Defendants' memberships in the Playboyz

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Officer Flowers testified to his opinion that Thompson, Williams,
and Easter were active members of the Playboyz gang. Thompson
admitted being a member of the Playboyz on six occasions in jail
classification settings in January and April 2008, and January,
February, and September 2009. On January 5, 2009, Thompson
admitted his gang affiliation to Fresno homicide detectives.

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Thompson had been documented as associating with Playboyz
gang members in June 2003, August 2003, November 2004, and
May 2007. Thompson was arrested with other members of the
Playboyz on July 4, 2004, November 6, 2004, and January 23,
2009.
Officer Flowers classified Thompson as an active participant in the
gang based on the crimes he had committed, and his regular
association with other active members of the gang. Flowers
identified Thompson in a photograph which showed him making
the Playboyz hand sign, placing his fingers like rabbit ears.
Thompson had a tattoo of the Playboy bunny on his left arm, with
the word “Playboyz” written underneath it.
Officer Flowers testified that Easter was arrested on February 14,
2006, with Tyrone Williams, a member of the Playboyz. On May
24, 2008, Easter was documented as associating during a shooting
incident with Tyrone Williams, Anthony Silva and Maharie Kidan,
who were also members of the Playboyz. On July 10, 2008, Easter
was arrested with Robert Lee and Maharie Kidan. On January 3,
2009, Easter was with Tyrone Williams when he was contacted
about being present during a homicide. On April 8, 2009, Maharie
Kidan was arrested, and he claimed Easter provided him with a
weapon. On May 28, 2009, Easter was contacted during a traffic
stop with Anthony Skinner, a member of the Playboyz.
Flowers testified that Easter's nickname was “Kook.” Flowers
classified Easter as an active participant in the Playboyz based on
his behavior and nature and frequency of his contacts.
Officer Flowers testified that on January 3, 2009, Williams was
identified as a member of the Playboyz by homicide detective
Todd Frazier. On April 27, and July 19, 2009, Williams was
documented as associating with, respectively, Tyrone Williams
and Jason Bryant, members of the gang. On June 7, and September
10, 2009, Williams admitted to juvenile probation officers that he
was a member of the Playboyz gang.
Flowers testified Williams was an active participant in the
Playboyz gang because “his behavior is more than nominal, as we
outlined the many contacts through law enforcement and the
related offenses during those investigations.”

22
Williams's cell phone and the videos

23
24

Williams's cell phone contained a contact list. Officer Flowers
testified the names included “PB Kook,” “PB Crane,” “PB
Gunne,” and “PBJKIDDDDD.” Flowers believed “PB” was an
acronym for “Playboyz.”

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26
27
28

There were also two videos on the cell phone. Both videos were
played for the jury in this case.
One video showed Easter, Thompson, Williams, and another man
in the bathroom of the same apartment which was searched on the
night of the robbery. Thompson was holding a semiautomatic

12

1
2
3
4
5
6

handgun, which was similar to the weapon found in the apartment
and identified by the victims. The “bathroom” video was recorded
on September 4, 2009.
Officer Flowers testified that defendants' conduct on the
“bathroom” video supported his opinion that they were members
of the Playboyz, based on their dialogue, hand signs, displays of
tattoos and the gun, and discussion of specific rivals. The
defendants mentioned “The Mob, Klette Mob, also known as the
Laidlaw Boys” as a rival gang. Terrance Bryant was the fourth
man in the video, and he displayed a red tattoo of the letter “P” on
his chest.

7
8
9
10
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The second video showed several young men in a parking lot. It
was recorded on September 5, 2009. Officer Flowers testified the
“parking lot” video showed Thompson, Williams, and other young
African–American males. They were announcing “Playboyz,” and
displaying Playboyz hand signs. Officer Flowers did not see Easter
in that video.
Flowers testified the expressions and statements made by
defendants in the videos clearly promoted the Playboyz gang.
“Judging from the content and the dialogue and the expressions
made, I would be under the impression that these individuals had
done something and were warning others and claiming their gang
membership openly.”

14
The charged offenses

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Officer Flowers conceded that a gang member may commit a
crime or a robbery for personal reasons and not for the benefit of
the gang. Based on a series of similar hypothetical questions,
Flowers testified to his opinion that the robberies were committed
in association with a criminal street gang. All of the perpetrators
were members of the same gang, they committed the crimes in
concert, and they conspired together to commit the robberies.
While the participants did not say the gang's name during the
robberies, the crimes benefitted the gang by building its reputation
and each defendant's notoriety. The robbery proceeds also
benefitted the gang financially by enabling the gang members to
buy guns, and increased their individual prestige and the gang's
prestige.
Officer Flowers further explained that gang members gain respect
through committing acts of violence. These actions allow the gang
members to instill fear in the community and among their rivals.
“Other members see it, other members want to be a part of it. They
want to repeat. They want to join. That's the dangerous element
about group participation.”

25
26 ///
27 ///
28 ///

13

1

B. DEFENSE EVIDENCE

2

Thompson and Easter testified at trial; Williams did not testify.

3

Thompson's trial testimony

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Thompson, who was 23 years old, admitted he had prior
convictions for felony statutory rape and petty theft in 2007. He
obtained the “Playboyz” tattoo on his arm when he was 14 years
old to show his cousin that he liked girls.
Thompson testified that he was depicted in the “bathroom” video,
which was filmed in September 2009 at his grandmother's
apartment. Easter, Williams, and Terrance Bryant were also in the
video. Thompson admitted that he held a gun in the video.
Thompson testified that he was in a “bad place” in his life at that
time. He was “... doing Ecstasy, smoking all kinds of weed, you
know, just being stupid.” Thompson said he was in the parking lot
video with his cousins. Williams filmed the video. Easter was not
there.
Thompson admitted that he was present during the Gaynor and
Franco robberies, and Williams was also there.

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Thompson testified the robberies were not committed for the
benefit of the Playboyz or any gang, but because he needed money
for his rent and he did not have a job. Thompson testified he was
not present during the Flechsing robbery.
Thompson testified he robbed Gaynor at gunpoint and used the
nine-millimeter handgun which was found in his grandmother's
apartment. Williams and an unknown third man were also present.
He said that Williams made the telephone calls to set up the
robbery.
Thompson testified that he was present when Franco was robbed.
Thompson was not the gunman, but the same gun was used from
the Gaynor robbery. Thompson went through Franco's pockets
during the robbery. Williams and an unknown third man were
present during the robbery.
Thompson initially testified that the unknown suspect who was
present during the Gaynor robbery was not the same unknown man
who was present during the Franco robbery. As to the Gaynor
robbery suspect, Thompson testified he met this man in the
apartment complex, and the robbery was this man's idea.
Thompson testified he feared for his life if he identified the third
suspect in the Franco robbery. Thompson knew this man from the
apartment complex, and this man always wore blue and said he
was a Crip. Thompson admitted he committed the Franco robbery
in association with a Crip.
During cross-examination, Thompson's description of the third
suspect began to change, and he admitted that the same man was
the third suspect for both the Franco and Gaynor robberies.

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Thompson testified this man was a member of the Crips, and he
knew the man was a Crip when they committed both robberies.

2
3
4
5

Thompson testified that he knew about the Playboyz, but insisted it
was not a street gang: “It's a family.... [M]ost of the people that are
in it are all family, all cousins and brothers.” “To us it is not a
gang.” Thompson and some of his cousins referred to themselves
as Playboyz, but he meant that he was a “player” with the girls.
Thompson testified that the Playboyz partied and went to clubs
when they were together.

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On further cross-examination, Thompson admitted he was a
member of the Playboyz and there were about 20 members,
including many people in his family. Thompson knew Christopher
Williams, Anthony Skinner, Christopher Williams, Jason Bryant,
Tyrone Williams, and Rafael Houston, and also knew they were
members of the Playboyz.
Thompson testified that members of the Playboyz did not get along
with the “Northside” and “Murder Squad” gangs because they did
not want to join those two gangs. Thompson repeatedly denied the
Playboyz was a criminal street gang, that the members committed
crimes, or that its primary purpose was to commit robberies.
Thompson admitted that he claimed membership in the Playboy
Crips during the jail classification interviews. He did so to avoid
being jumped in jail. He said there was no such group as the
Playboy Crips.
Thompson testified that Williams was a member of the Playboyz.
Thompson knew Williams was a member when they committed
the robberies. Thompson testified that Easter was not a member of
the Playboyz, and he was not present during the Gaynor and
Franco robberies.

22

On further questioning, Thompson testified he was not afraid to
implicate Williams because he knew that Williams already talked
to the police and said he was involved in the robberies. Thompson
testified he knew that Easter had not implicated himself in the
robberies. Thompson testified he was afraid to implicate Easter as
the third suspect because Easter had not implicated himself.
Thompson testified he was related to Easter, and Thompson had
known Easter for his entire life. He did not want Easter to get into
trouble, but denied that he would lie for Easter.

23

Easter's trial testimony

24

Easter testified he had known Thompson since elementary school.
He did not know Thompson was a member of the Playboyz until
he heard Thompson's trial testimony. He had known Williams
since high school, and did not know whether he was a member of
the Playboyz. Easter testified the Playboyz were people who went
to “dance parties, and like going out to the clubs and stuff....”

18
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21

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Easter admitted that he was in the bathroom video with Thompson
and Williams, and that he saw the gun that was shown in the video.

15

Easter testified the fourth person in the bathroom video was known
as “Gunne,” and Easter knew he had a “P” tattooed on his chest.
Easter also knew that Thompson had a tattoo of a Playboy bunny
on his arm, but these tattoos meant nothing to him. Easter testified
he was present when Williams spelled out the word “Playboyz” in
the bathroom video. Williams testified he did not recall Williams
talking about the Bloods and the Crips during the bathroom video,
and the words meant nothing to him. Easter was not present during
the parking lot video.

1
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3
4
5

Easter testified he had never been charged or convicted of a crime.
Easter admitted he vandalized a shopping cart with Tyrone
Williams in February 2006. He was taken to juvenile hall and
released. He was arrested on September 10, 2008, for illegally
discharging a firearm, and released the same day.

6
7
8

Easter admitted he was present when a homicide occurred at a
party in January 2009. Easter denied that he gave a gun to Maharie
Kidan on April 8, 2009. Easter was with Anthony Skinner during a
traffic stop on May 28, 2009. Skinner was a close family friend,
but Easter did not know if he was a member of the Playboyz.

9
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Easter testified he was not involved in the Franco or Gaynor
robberies. He was not a member of any gang, and he never
committed any crimes for the benefit of a gang. Easter never called
himself a member of the Playboyz, but he knew some people who
used that name. Easter admitted he was known by the nickname of
“Kook.”

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Easter testified that in the fall of 2009, he was employed by a home
care agency, and cared for his disabled mother under a program
sponsored by the state. He lived with his mother, and he also
shared an apartment with the mother of his child.

16
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Easter testified that at the time of the Franco robbery, he was
working for the home care agency and providing services to his
mother. On the night of the Gaynor robbery, he was staying with
his daughter and the child's mother, at their residence near Clinton
and Brawley. He cut his hair sometime after the bathroom video
was made in September 2009, and before he was arrested on
November 14, 2009.

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(LD 5).

23

III.

24

DISCUSSION

25

A.

Jurisdiction

26

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

27 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
28 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v.

16

1 Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as
2 guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County
3 Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28
4 U.S.C. § 2241(d).
5

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

6 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
7 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
8 Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is
9 therefore governed by its provisions.
10

B.

11

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is

Standard of Review

12 barred unless a petitioner can show that the state court’s adjudication of his claim:
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15
16
17

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

18 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct 770, 783-84, 178 L.Ed.2d 624
19 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
20

As a threshold matter, this Court must “first decide what constitutes ‘clearly established

21 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at
22 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law,"
23 this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions
24 as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words,
25 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles
26 set forth by the Supreme Court at the time the state court renders its decision." Id. In addition,
27 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal
28 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in

17

1 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of
2 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v.
3 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
4 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
5 end and the Court must defer to the state court’s decision. Carey, 549 U.S. 70; Wright, 552 U.S.
6 at 126; Moses, 555 F.3d at 760.
7

If the Court determines there is governing clearly established Federal law, the Court must

8 then consider whether the state court's decision was "contrary to, or involved an unreasonable
9 application of,” [the] clearly established Federal law." Lockyer, 538 U.S. at 72 (quoting 28
10 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ
11 if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
12 question of law or if the state court decides a case differently than [the] Court has on a set of
13 materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at
14 72. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite
15 in character or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster's
16 Third New International Dictionary 495 (1976)). “A state-court decision will certainly be
17 contrary to [Supreme Court] clearly established precedent if the state court applies a rule that
18 contradicts the governing law set forth in [Supreme Court] cases.” Id. If the state court decision
19 is “contrary to” clearly established Supreme Court precedent, the state decision is reviewed
20 under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en
21 banc).
22

“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if

23 the state court identifies the correct governing legal principle from [the] Court’s decisions but
24 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
25 413. “[A] federal court may not issue the writ simply because the court concludes in its
26 independent judgment that the relevant state court decision applied clearly established federal
27 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;
28 see also Lockyer, 538 U.S. at 75-76. The writ may issue only “where there is no possibility

18

1 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme
2 Court’s] precedents.” Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists
3 could disagree on the correctness of the state courts decision, the decision cannot be considered
4 unreasonable.

Id.

If the Court determines that the state court decision is objectively

5 unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the
6 error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619,
7 637 (1993).
8

Petitioner has the burden of establishing that the decision of the state court is contrary to

9 or involved an unreasonable application of United States Supreme Court precedent. Baylor v.
10 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the
11 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a
12 state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669
13 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
14

The AEDPA requires considerable deference to the state courts. “[R]eview under §

15 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
16 the merits,” and “evidence introduced in federal court has no bearing on 2254(d)(1) review.”
17 Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). “Factual determinations
18 by state courts are presumed correct absent clear and convincing evidence to the contrary.”
19 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a
20 state court factual finding is not entitled to deference if the relevant state court record is
21 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),
22 overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
23

C.

Review of Claims

24

1. Ineffective assistance of counsel

25

Petitioner argues that he received ineffective assistance of counsel, because his trial

26 counsel did not challenge the out-of-court identification of him by two of the robbery victims,
27 Gaynor and Franco. This claim was presented on direct appeal to the Fifth District Court of
28 Appeal and it was denied in a reasoned decision. Petitioner then presented this claim in a

19

1 petition for review to the California Supreme Court. The California Supreme Court summarily
2 denied the petition.

Federal courts review the last reasoned state court opinion.

Ylst v.

3 Nunnemaker, 501 U.S. 979, 803 (1991). Therefore, the Court must review the opinion of the
4 Fifth District Court of Appeal. In rejecting Petitioner’s claim, the appellate court stated as
5 follows:
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The victims’ identifications of Easter
As set forth in the factual statement, Gaynor and Franco identified
Easter as one of the robbery suspects after they separately looked
at a single photograph which showed Williams and Easter standing
together.
Easter contends that his defense attorney was prejudicially
ineffective for failing to file a pretrial motion to exclude the
victims’ identifications based on that single photograph. Easter
contends the photographic identification process was unduly
suggestive and violated his due process rights because the picture
showed Easter with as one of the suspects.
A. Background
Easter did not file any pretrial motions to argue that the
identifications made by Gaynor and Franco, from the single
photograph which showed Easter and Williams, violated his due
process rights or was the result of unduly suggestive and unreliable
procedures.
After Easter was convicted, he filed a motion for new trial and
argued the court should have suppressed the identification evidence
because the single photographic show-up was inherently suggestive
and unreliable since it showed Easter and Williams together, the
victims never looked at photographic lineups for the third suspect
with the dreadlocks, and Franco did not identify Easter in court.
The People replied that Easter had waived this issue since he never
objected to or moved to exclude the identification evidence. In the
alternative, the People asserted the identification procedure for
Easter was reliable and not suggestive.
The trial court denied Easter’s motion for new trial and found the
identification procedure for Easter was not unduly suggestive, and
it did not cause Easter to “stand out.” The court believed the
victims looked at a photograph which only showed Easter, and the
picture did not show Thompson or Williams.31
FN31. As we will explain, post, the court’s statement about
the nature of the photograph used to identify Easter
conflicts with the trial evidence. Detective Mares testified
that Gaynor and Franco separately identified Easter when
they looked at the photograph identified as exhibit No. 7,
which showed both Easter and Williams. When Gaynor
testified, he thought he identified Easter after looking at a
20

1

photograph which only showed one person, but agreed that
he also looked at exhibit No. 7.

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The court held there was nothing in that photograph that suggested
Easter stood out compared to the other live witnesses and
photographs that were viewed by the victims. The victims
“described very accurately” Easter’s hairstyle, “even to the point of
the dreadlock hairstyle having red tips.” While there were
inaccuracies in Franco’s description of the suspect’s height and
facial hair, Franco immediately identified Easter from the
photograph and said he was the gunman.
“[C]onsidering all the circumstances under which this
identification took place, the Court is not satisfied that the
… procedure was unduly suggestive. It was not. These …
victims in the case had the opportunity to view others live
and in photographs and did not select those individuals.
They selected the person that they believed based upon …
what they went through to be the person who was
involved.”

11
12

The court also found that both victims received appropriate
admonitions before they looked at the photograph, and the
identifications were close in time to the robberies.

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B. Suggestiveness
We begin with the well-settled principles about pretrial
identification procedures, which violate due process if such
procedures are so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification. (People v.
Sanders (1990) 51 Cal.3d 471, 508.) “ ‘The issue of constitutional
reliability depends on (1) whether the identification procedure was
unduly suggestive and unnecessary [citation]; and if so, (2) whether
the identification itself was nevertheless reliable under the totality
of the circumstances, taking into account such factors as the
opportunity of the witness to view the criminal at the time of the
crime, the witness’s degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and the
confrontation [citation]. If, and only if, the answer to the first
question is yes and the answer to the second is no, is the
identification constitutionally unreliable.’ [Citation.] In other
words, ‘[i]f we find that a challenged procedure is not
impermissibly suggestive, our inquiry into the due process claim
ends.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412
(Ochoa).)
“To determine whether a procedure is unduly suggestive, we ask
‘whether anything caused defendant to “stand out” from the others
in a way that would suggest the witness should select him.’
[Citations.]” (People v. Yeoman (2003) 31 Cal.4th 93, 124.)
“[F]or a witness identification procedure to violate the due process
clauses, the state must, at the threshold, improperly suggest
something to the witness – i.e., it must, wittingly or unwittingly,
initiate an unduly suggestive procedure.” (Ochoa, supra, 19

21

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Cal.4th at p. 413.) “A procedure is unfair which suggests in
advance of identification by the witness the identity of the person
suspected by the police.” (People v. Slutts (1968) 259 Cal.App.2d
886, 891 [photographic lineup violated due process where child
shown several pictures, but only one had beard drawn on it].)
The defendant bears the burden of demonstrating that the
identification procedure was suggestive, unreliable, and so unfair
that it violated his due process rights. (People v. DeSantis (1992) 2
Cal.4th 1198, 1222; People v. Sanders, supra, 51 Cal.3d at p 508.)
The defendant must show “unfairness as a demonstrable reality, not
just speculation.” (People v. DeSantis, supra, 2 Cal.4th at p. 1222.)
If the defendant raised and preserved the issue, we independently
review the trial court’s ruling that a pretrial identification
procedure was not unduly suggestive. (People v. Avila (2009)
46 Cal.4th 680, 698.)

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C. Single-person photographic identifications
A single-person photographic show-up is not inherently unfair or
impermissibly suggestive. (Ochoa, supra, 19 Cal.4th at pp. 413,
425-426; People v. Clark (1992) 3 Cal.4th 41, 136, overruled on
other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462;
People v. Floyd (1970) 1 Cal.3d 694, 714, overruled on other
grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)
“Showing the witnesses a single photo of the defendant is no more
impermissibly suggestive than an in-court identification with the
defendant personally sitting at the defense counsel table in the
courtroom. [Citations.]” (People v. Yonko (1987) 196 Cal.App.3d
1005, 1008-1009, original italics.)
However, numerous cases have also “condemned the use of a
single photo identification procedure.” (People v. Contreras (1993)
17 Cal.App.4th 813, 820.) Single person show-up procedures are
considered unfair when they are not neutral, and unnecessarily
suggest to the witness in advance the identity of the person
suspected by the police. (People v. Yeoman, supra, 31 Cal.4th at
pp. 123-124; Ochoa, supra, 19 Cal.4th at pp. 412-413; People v.
Slutts, supra, 259 Cal.App.2d at p. 891.) We must look to the
totality of the circumstances of the identification procedure. If we
find the challenged procedure is not impermissibly suggestive, the
due process claim fails. (Ochoa, supra, 19 Cal.4th at p. 412.)
D. Analysis
Defendant Easter did not file a pretrial motion to challenge the
photographic identification procedure. He filed a posttrial motion
for new trial based on the inherent suggestiveness of the
identification procedure, and the trial court denied that motion. On
appeal, however, he has not challenged the court’s denial of his
new trial motion.
Defendant Easter’s failure to file a timely objection to alleged
suggestiveness of the identification procedure results in waiver of
that issue. (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
Easter acknowledges this problem and raises the alternate
contention that his defense attorney was prejudicially ineffective

22

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for failing to file a pretrial motion to challenge the single
photographic show-up which led to Franco and Gaynor identifying
him as the third robbery suspect.
“To establish ineffective assistance, defendant bears the burden of
showing, first, that counsel’s performance was deficient, falling
below an objective standard of reasonableness under prevailing
professional norms. Second, a defendant must establish that, absent
counsel’s error, it is reasonably probable that the verdict would
have been more favorable to him. [Citations.]” (People v.
Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in
People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley
(2000) 23 Cal.4th 82, 89.)
We first note that while Easter’s attorney did not file a pretrial
motion to exclude the identifications, he was not oblivious to this
issue. He extensively cross-examined Detective Mares on how and
why he only used a single photograph for the identification of
Easter, and about his failure to use a photographic lineup. When
Franco testified, Easter’s attorney sought to undermine the accuracy
of Franco’s identification of Easter, and Franco became confused as
to whether he had identified Thompson and/or Easter. Finally,
Easter’s attorney used closing argument to attack the reliability of
the Gaynor and Franco identifications of Easter based on
inconsistencies in Franco’s description of the third suspect,
Franco’s trial confusion, and the use of a photograph with both
Williams and Easter. Easter’s attorney urged the jury to review the
instruction about the factors to evaluate eyewitness identifications,
and argued the victims’ identifications of Easter were not reliable
and should be rejected. The jury was fully and correctly instructed
by CALCRIM No. 315 on the factors to evaluate eyewitness
identification testimony.
In any event, “[i]f a defendant has failed to show that the
challenged actions of counsel were prejudicial, a reviewing court
may reject the claim on that ground without determining whether
counsel’s performance was deficient. [Citation.]” (People v.
Kirkpatrick (1994) 7 Cal.4th 988, 1008, overruled on other grounds
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Thus, the
ultimate question before this court is whether the failure of Easter’s
attorney to file a pretrial challenge to the identification procedure
was prejudicial, i.e., whether there is a reasonable probability the
result would have been different if such a motion had been made.
1. Suggestiveness
We believe the answer to that question is no for several reasons.
First, the use of a single photograph is not inherently unfair or
impermissibly suggestive, and the fact single photograph is not
inherently unfair or impermissibly suggestive, and the fact the
officers used that procedure did not violate due process by itself.

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Second, there is no evidence the investigating officers engaged in
any conduct which improperly suggested to Gaynor and/or Franco
that the officers believed Easter was one of the suspects. Indeed,
Gaynor had looked at numerous suspects before he identified

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Easter. Just after the robbery, police officers drove Gaynor past
two or three men standing on the street near the apartment complex
and asked Gaynor if any of these men were the robbery suspects.
Gaynor said no. Later that night, Gaynor was taken to an infield
show-up of three men. He immediately identified Williams and
Thompson as two of the robbers, but did not identify the third man
as a suspect.
When Detective Mares showed Gaynor and Franco the photograph
of Easter from Williams’s cell phone (on separate occasions),
Mares read admonitions to them that the photograph may or may
not show someone involved in his case. Franco also looked at
different photographic lineups. Thus, the officers’ efforts to
identify all three suspects were not limited to showing the single
photograph of Easter to the robbery victims.
Defendant Easter argues the single photograph shown to the
victims was inherently suggestive because it depicted Easter and
Williams together, and Williams had already been identified as one
of the robbery suspects. The People contend that Easter was the
only person in the photograph that was shown to the robbery
victims. In support of this contention, the People cite to the trial
court’s findings when it denied defendant’s new trial motion.
When the trial court made these findings, however, it
acknowledged that it was doing so from memory. The court’s
memory appears inconsistent with the trial evidence. Detective
Mares testified that he showed the photograph marked exhibit No.
7 to Franco and Gaynor, the photograph had been found on
Williams’s cell phone, and it depicted two African-American
males: Easter, who had red-tipped dreadlocks, and Williams.FN32
FN32. The court may have relied on Gaynor’s testimony
when it made this finding. Gaynor testified he identified
Easter from a photograph which showed a single person,
and he thought he looked at a photograph other than exhibit
No. 7 when he made the identification. Gaynor also
testified that at some point, he looked at exhibit No. 7 and
recognized both Williams and Easter in the picture.
We note that the mere fact that Williams and Easter were in the
single photograph together does not mean the identification
procedures were suggestive. On the night of the robbery, Gaynor
was taken to an infield show-up and asked to look at three men:
Williams, Thompson, and a third man. Gaynor identified Williams
and Thompson as two of the robbery suspects, and did not identify
the third man. Thus, the presence of another man with two of the
identified suspects did not influence Gaynor to identify that man,
or cause him to hesitate about identifying the other two suspects.
As for Franco, he looked at photographic lineups, which contained
pictures of Thompson and Williams. He identified Thompson as
the man who went through his pockets, but he failed to identify
Williams. Thus, the record suggests that Franco looked at the
photograph without having already identified Williams.

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2. Reliability
In any event, even if it was suggestive to show the victims a single
photograph, the identifications were reliable under the totality of
the circumstances, considering the victims’ opportunity to view the
perpetrator at the time of the offense, the accuracy of their
descriptions, the level of certainty they demonstrated at the time of
the identifications, and the lapse of time between the robberies and
the identifications. (People v. Kennedy (2005) 36 Cal.4th 595, 608
(Kennedy), disapproved on other ground in People v. Williams
(2010) 49 Cal.4th 405, 459.) Both Gaynor and Franco were in
close proximity with all three robbers, they consistently described
the third man’s red-tipped dreadlocks, Gaynor made his
identification less than 24 hours after he was robbed, and Franco’s
identification was within two to three days after he was robbed.
Franco and Gaynor both said they were certain of their
identifications at the time they viewed the photograph, and Franco
further identified Easter as the gunman in his robbery. While
Franco and Gaynor may have been shaken by being victims of an
armed robbery, they were sufficiently observant to also identify the
white T- Mobile cell phone as the device which Williams held
during the robberies, and describe the firearm consistent with the
weapon which was found in the apartment with the stolen cell
phones.
Defendant Easter argues the victims’ identifications were not
reliable because they gave inconsistent descriptions of the third
suspect’s precise height, and whether he had gold or silver teeth.
Easter also points out that during his trial testimony, Franco
confused Easter with Thompson, and he did not identify Easter at
trial as the third suspect.

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There are two cases which dealt with similar issues about
suggestiveness and reliability. In Kennedy, supra, 36 Cal.4th 595,
a seemingly suggestive identification process was found to be
reliable under similar circumstances. In that case, a witness to a
murder at a rest stop described the perpetrator to police and
attempted to aid in preparing a composite sketch of the man. (Id. at
p. 603.) She said the perpetrator had no facial hair. (Ibid.) When
an arrest was made, the witness saw a newspaper photograph of the
arrestee, the defendant, and expressed her concern to police
because of the defendant’s eyes and beard. (Id. at pp. 605, 610.) A
detective showed her a picture of the defendant without a shirt,
which revealed his tattoos of a swastika, a gun, and the name of his
gang. The witness could not identify the defendant because his
eyes were downcast in the picture.
When shown a videotape of the arrest, however, the witness saw
the defendant’s eyes, immediately identified him, and expressed
disbelief for failing to notice his beard. The witness later positively
identified the defendant at trial. (Ibid.) The trial court found the
identification procedure was not unduly suggestive.
Kennedy held the identification evidence “was admissible as
reliable under the totality of circumstances .…” (Kennedy, supra,
36 Cal.4th at p. 610.) Kennedy found that the facts that the witness

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had inaccurately described the suspect to police, and did not
recognize him in the newspaper photograph, were outweighed by
her proximity to the perpetrator, she had looked at him for 30 to 60
seconds, only three weeks passed between the crime and the
identification, and the certainty of her later identifications upon
seeing the video and in court. (Id. at pp. 610-611.)

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In People v. Contreras, supra, 17 Cal.App.4th 813, the court held
that a prosecutor’s act of showing a single photograph of the
defendant to a victim witness was suggestive, but the identification
did not violate due process. (Id. at p. 820.) The victim had been
told there were two suspects in custody. The victim personally
knew one of his attackers, and he knew the police wanted him to
identify the other one. Contreras held the showing of the single
photograph necessarily suggested to the witness that it depicted the
other attacker. (Ibid.)

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However, Contreras further held that the trial court’s decision to
allow the identification evidence did not violate due process.
(Contreras, supra, 17 Cal.App.4th at p. 823.) The jury was made
fully aware of the witness’s failure to select the defendant from
photographic lineups prior to the identification at the preliminary
hearing. (Ibid.) The jury saw the single photograph of the
defendant and was able to assess its clarity. The jury was also able
to determine whether the witness should have been able to identify
the defendant given the circumstances of the attack, it was
instructed on the factors bearing upon the accuracy of an
eyewitness’s identification, and defense counsel strenuously argued
that the identification was not credible. At that point, the
identification issue became “largely one of credibility,” which was
a question for the jury. (Id. at pp. 823-824.)
In this case, as in Kennedy and Contreras, the jury was well aware
of the single photograph identification procedure. Easter’s attorney
ably developed the evidence which showed the procedures used to
identify Easter, the nature of the photograph used for that
identification, Franco’s confusion at trial between Easter and
Thompson, and the possible differences between the victims’
descriptions of the third suspect and Easter’s appearance. The jury
was also fully instructed on the factors to evaluate eyewitness
identification testimony, and defense counsel urged the jury to
discount the victims’ identifications of Easter as inaccurate.

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Easter cites People v. Nation (1980) 26 Cal.3d 169, as an example
where a defense attorney’s failure to challenge the identification
procedure was prejudicial. The instant case, however, is not similar
to Nation. In Nation, the defendant was charged with threatening
and molesting children. Two weeks after the event, the children
viewed photographs at the police station. One child selected the
defendant’s mug shot. She told the other children that she had
identified the assailant, and, after some discussion, the other
children agreed. An officer gave the mug shot to the children, so
they could take it home and show other possible witnesses. Almost
four months later, the children failed to identify the defendant in a
live lineup, and they identified another individual. They were told

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they had selected the “wrong” man. (Id. at p. 174.)

2

Nation held that the photographic identification evidence was so
extraordinarily suggestive that it was doubtful that the prosecutor
could have submitted it over the timely objection of trial counsel.
Nation further held defense counsel’s failure to object to the
identification procedure deprived defendant of constitutionally
adequate assistance. (People v. Nation, supra, 26 Cal.3d at pp.
174, 179-181.) As illustrated, ante, such suggestive and unreliable
circumstances are completely absent from this case.

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3. Prejudice
Finally, given the nature of defendant’s ineffective assistance
claim, the record demonstrates another reason that it is not
reasonably probable that a more favorable result would have
occurred. Defendant Easter contends defense counsel’s conduct
was prejudicial because there was no other evidence which
implicated him in the robberies, aside from the victims’
identification testimony, and Thompson’s trial testimony which
exonerated him.

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The entirety of Thompson’s trial testimony cannot be characterized
as exonerating Easter. Thompson testified that he committed two
of the robberies with Williams, and Easter was not the third person.
Thompson initially claimed that the third suspect in the Franco
robbery was not the same person who committed the Gaynor
robbery. He said he met both these men at the apartment complex.
One man was associated with the Crips; he did not really know
these men; and he feared for his life if he identified them.
On cross-examination, however, Thompson’s description of two
different men as the third suspect began to break down. Thompson
admitted that the same man committed both the Gaynor and Franco
robberies, but still refused to identify him. When asked why he
was willing to implicate Williams, Thompson replied that he knew
Williams had already talked to the police and admitted he
committed the robberies.
The most crucial part of Thompson’s testimony was his admission
that he knew that Easter had not implicated himself in any of the
robberies. Thompson testified he was afraid to implicate Easter as
the third suspect because Easter had not implicated himself.
“Q So isn’t it true that you’re afraid that if you were to say
that Brian Easter was the person, the third party involved in
this robbery that you would be implicating him where he
hadn’t previously done so?
“[EASTER’S ATTORNEY]: I’m going to object to the
form of the question as argumentative, compound, and
vague.
“THE COURT:

Overruled.

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“[THOMPSON]:
Can you say it one more time for
me?
“(Thereupon the question was read by the court reporter.)
“[THOMPSON]:

Yes.”

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Thompson insisted that was not the reason that he said the third
suspect was someone other than Easter. However, Thompson also
testified he was related to Easter. Thompson had known Easter for
his entire life, and he did not want Easter to get into trouble.
Thompson denied that he would lie for Easter.
While Thompson may have claimed Easter was not the third
suspect, and he would not lie for Easter, he conceded he was afraid
to implicate someone who had not already confessed to the crimes.
Thompson’s testimony thus raised the extremely strong inference
that Easter was the third robbery suspect.
We thus conclude that based on the entirety of the record, defense
counsel’s failure to challenge the pretrial identification of Easter
was not prejudicial because the victims’ identifications were
otherwise reliable, and any erroneous admission of their
identifications was harmless given Thompson’s trial testimony.

14 (LD 5).
15

The law governing ineffective assistance of counsel claims is clearly established for the

16 purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe,
17 151 F.3d 1226, 1229 (9th Cir. 1998.) In a petition for writ of habeas corpus alleging ineffective
18 assistance of counsel, the court must consider two factors. See Strickland v. Washington, 466
19 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). First, the petitioner must show that counsel's
20 performance was deficient, requiring a showing that counsel made errors so serious that he or she
21 was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S.
22 at 687. The petitioner must show that counsel's representation fell below an objective standard
23 of reasonableness, and must identify counsel’s alleged acts or omissions that were not the result
24 of reasonable professional judgment considering the circumstances. Id. at 688; Harrington v.
25 Richter, 131 S.Ct. at 788 (“The question is whether an attorney’s representation amounted to
26 incompetence under “prevailing professional norms,” not whether it deviated from best practices
27 or most common custom.). Judicial scrutiny of counsel's performance is highly deferential. A
28 court indulges a strong presumption that counsel's conduct falls within the wide range of

28

1 reasonable professional assistance. Strickland, 466 U.S. at 687; Sanders v. Ratelle, 21 F.3d
2 1446, 1456 (9th Cir. 1994).
3

Second, the petitioner must show that counsel's errors were so egregious as to deprive

4 defendant of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688. The court
5 must also evaluate whether the entire trial was fundamentally unfair or unreliable because of
6 counsel’s ineffectiveness. Id.; United States v. Quintero-Barraza, 78 F.3d 1344, 1345 (9th Cir.
7 1995); United States v. Palomba, 31 F.3d 1356, 1461 (9th Cir. 1994). More precisely, petitioner
8 must show that (1) his attorney’s performance was unreasonable under prevailing professional
9 norms, and, unless prejudice is presumed, that (2) there is a reasonable probability that, but for
10 counsel’s unprofessional errors, the result would have been different. It is not enough “‘to show
11 that the errors had some conceivable effect on the outcome of the proceeding.’” Richter, 131
12 S.Ct. at 787 (internal citation omitted). Accordingly, the question “is not whether a federal court
13 believes the state court’s determination under the Strickland standard was incorrect but whether
14 that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550
15 U.S. 465, 473 (2007). In effect, the AEDPA standard is “doubly deferential” because it requires
16 that it be shown not only that the state court determination was erroneous, but also that it was
17 objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the
18 Strickland standard is a general standard, a state court has even more latitude to reasonably
19 determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S.
20 652, 664 (2004) (“[E]valuating whether a rule application was unreasonable requires considering
21 the rule’s specificity. The more general the rule, the more leeway courts have in reaching
22 outcomes in case-by-case determinations.”).
23

Here, the Court of Appeal applied the Strickland standard for ineffective assistance of

24 counsel, which was the appropriate clearly established federal law. This Court will determine
25 whether the Court of Appeal reasonably concluded that Petitioner’s ineffective assistance of
26 counsel claim failed on both the performance and prejudice prongs of Strickland for a motion
27 challenging the out-of-court identifications of Petitioner.
28

The California Court of Appeal determined that the out-of-court identifications of

29

1 Petitioner by Gaynor and Franco were neither suggestive nor unreliable, and therefore, any
2 challenge to the out-of-court identifications would have been unsuccessful. A pretrial motion to
3 suppress an out-of-court identification looks at whether the identification procedure used by the
4 police was so suggestive “as to give rise to a very substantial likelihood of irreparable
5 misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968); People v. Cunningham,
6 25 Cal.4th 926, 989 (2001). Even if the identification was suggestive, it can still be reliable
7 under the totality of the circumstances, including the witness’s opportunity to view the criminal
8 and the witness’s degree of attention at the time of the crime, the accuracy of the witness’s prior
9 descriptions of the suspect, the level of certainty at the identification, and the time between the
10 crime and the identification.

See Neil v. Biggers, 409 U.S. 188, 199 (1972); Manson v.

11 Brathwaite, 432 U.S. 98 (1977).
12

It was reasonable for the Court of Appeal to conclude that the single-person photographic

13 identifications of Petitioner by Gaynor and Franco were not suggestive. Single person show-up
14 procedures that are not neutral and unnecessarily suggest to the witness in advance the identity of
15 the person suspected by the police will be deemed impermissibly suggestive. People v. Ochoa,
16 19 Cal.4th 353, 412-13 (1998). The investigating officers showed a number of photographs to
17 Gaynor and Franco at separate times. There was no evidence that the officers conducting the
18 photographic identification acted in a way that would have suggested to Gaynor or Franco that
19 Petitioner was a suspect or that they should select Petitioner from the photographs. Although the
20 photograph of Petitioner that was used in the single-person photographic identification procedure
21 also had co-defendant Williams in it, there is no evidence to suggest that either Gaynor or Franco
22 selected Petitioner based on Williams being in the photograph. Franco identified Petitioner prior
23 to any indication that he recognized Williams as a suspect. Although it is unknown if Gaynor
24 recognized Williams as a suspect at the time he made the identification, there is no evidence that
25 Gaynor would have identified one suspect solely because he was seen with another suspect.
26 Gaynor had identified Williams and Thompson during a show-up of three men the night of the
27 crime, and Gaynor did not identify the third man as a participant in the robbery. Therefore,
28 Franco and Gaynor’s identifications of Williams and Thompson were not influenced by the

30

1 presence of another person in the photograph.

Thus, when looking at the totality of the

2 circumstances, the photographic identifications of Petitioner were not impermissibly suggestive.
3

The identifications of Petitioner by Gaynor and Franco were reliable, because both

4 Gaynor and Franco were in close proximity to the suspects and had consistently described the
5 third suspect as having red-tipped dreadlocks. Both Gaynor and Franco were unwavering in
6 their identifications of Petitioner at the time of the photographic identifications. Therefore, a
7 motion to challenge the out-of-court identifications of Petitioner by Franco and Gaynor would
8 have been unsuccessful, and it was reasonable for Petitioner’s trial counsel to not bring a
9 suppression motion. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (holding that
10 failure to bring a futile motion does not constitute ineffective assistance of counsel).
11

In addition, Petitioner has not shown that the failure of his trial counsel to challenge the

12 out-of-court identifications resulted in prejudice that would have caused the result of the trial to
13 be different. There was an abundance of other evidence identifying Petitioner as a participant in
14 the robberies.

Although Petitioner argues that Thompson exonerated Petitioner, Thompson

15 actually inferentially implicated Petitioner.

In the beginning of Thompson’s testimony he

16 contended that two different men were the third suspects in the robberies. However, Thompson
17 eventually testified that the same person was involved in both the Franco and Gaynor robberies.
18 Thompson admitted that he was related to Petitioner, had known Petitioner all of his life, and did
19 not want Petitioner to get into trouble. He also testified that he was not willing to implicate
20 Petitioner because he knew that Petitioner had not implicated himself. Gaynor also identified
21 Petitioner in court as one of the suspects involved in the robbery. Petitioner’s counsel cross22 examined both of the victims about their identifications of Petitioner, and the jury made a
23 credibility decision about the identifications. Therefore, there was other identification evidence
24 adduced at trial. Even if the jury was not presented with the out-of-court identifications of
25 Petitioner by Franco and Gaynor, there is not a reasonable probability that the result of the trial
26 would have been different. Therefore, Petitioner has not demonstrated that the state court’s
27 denial of his ineffective assistance of counsel claim was contrary to or an unreasonable
28 application of clearly established federal law. 28 U.S.C. § 2254(d)(1).

31

1

2. Bifurcation of the gang evidence

2

Petitioner also argues that the trial court abused its discretion when it denied Petitioner’s

3 pretrial motion to sever the substantive gang offense in count IV (Cal. Penal Code § 186.22(a)),
4 and bifurcate the gang enhancements (Cal. Penal Code § 186.22(b)(1)) from the robbery charges.
5 The California Court of Appeal rejected this argument:
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I. Denial of severance/bifurcation motions on gang allegations
and evidence
Thompson and Easter contend the court abused its discretion when
it denied their pretrial motion to sever count IV, the substantive
gang offense (§ 186.22, subd. (a)), and bifurcate the gang
enhancements (§ 186.22, subd. (b)(1)), from the three robbery
charges. Defendants argue the gang evidence was irrelevant and
prejudicial to the robbery charges because there was no evidence
the suspects committed the robberies to benefit any gang.
A. Background
Prior to trial, Easter moved to bifurcate the robbery charges from
count IV, the gang substantive offense, and the gang
enhancements; Thompson and Williams joined the motion. They
argued the gang evidence was irrelevant and prejudicial to the
robbery charges. The prosecutor replied the gang evidence was
relevant to prove that defendants intended to aid and abet each
other in the commission of the robberies, particularly during the
Gaynor robbery. The prosecutor also cited to the “bathroom” video
which showed all three defendants talking about the Playboyz
gang, and throwing gang signs, while Thompson held the gun
which appeared to have been used in the robberies.

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The trial court denied defendants' bifurcation motion:
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“[T]he court does not find the inclusion of the gang enhancement
or the gang charge is such that it will unduly prejudice the
defendants in their ability to receive a fair trial. It does not show
any extraordinary prejudice in this Court's mind. So the motion to
bifurcate is denied. Because in essence what counsel is asking is
not just for a bifurcation of the enhancements but for a severance
of [count IV]. Because in essence it would be virtually impossible
for counsel or for the Court to adequately explore the minds of
potential jurors in this case concerning gangs during voir dire if the
same jury was going to ultimately hear evidence on an
enhancement and the gang count separate from the underlying
charges. We couldn't do that. We would have to have basically a
new jury which would allow counsel and the Court to explore
those attitudes.
“Because by simply taking what [Williams's attorney] said, by
simply mentioning gangs in the context of a jury trial, that doesn't
have any information concerning gangs, at least so far as the jury is
concerned. They wouldn't know what is going on in this case. They
would suspect but they would not know. It will cause them to

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speculate, in other words, if we were to start asking them questions
about an enhancement, or charges or associations without there
being any charges or enhancements in the case to begin with.
“The Court is satisfied that the jurors—and the law recognizes that
the jurors will do their responsibility and will follow the law. They
will be informed as to any evidence concerning gang affiliation or
gang conduct would be admitted for the sole purpose of
determining whether the allegations are true concerning the
enhancement and the charge, but they are not to consider that
concerning the underlying robbery charges, only the gang charges.
So the request to bifurcate is denied.”

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B. Bifurcation
A trial court has broad discretion to control the conduct of a
criminal trial, including the power to bifurcate a gang enhancement
from trial on the substantive charges. (People v. Hernandez (2004)
33 Cal.4th 1040, 1048 (Hernandez).) However, the need to
bifurcate gang allegations is often not as compelling as for the
bifurcation of prior conviction evidence. (Id. 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, original italics.)
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.) We review the trial court's denial
of a motion to bifurcate for abuse of discretion. (Id. at p. 1048.)

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C. Severance
Joint trials of offenses which occur together are legislatively
preferred over separate trials, and the party requesting severance of
properly joined offenses has the burden to “clearly establish that
there is a substantial danger of prejudice requiring that the charges
be separately tried. [Citations.]” (People v. Bean (1988) 46 Cal.3d
919, 938–939; Burnell, supra, 132 Cal.App.4th at p. 946; see §
954.)
“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

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substantial danger of prejudice requiring that the charges be
separately tried. [Citations.]” (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 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.)
D. The court did not abuse its discretion
The trial court did not abuse its discretion when it denied
defendants' motions for severance and 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 aiding and abetting, identity, and bias.
As we will discuss in issue IV, post, one of the key issues in the
Gaynor robbery was the culpability of Williams and Easter, who
stood by while Thompson pulled the gun and went through
Gaynor's pockets. Their joint gang status was clearly relevant as
circumstantial evidence of their intent and knowledge to prove
aiding and abetting to commit robbery. (See, e.g., Burnell, supra,
132 Cal.App.4th 938, 947; People v. Salgado (2001) 88
Cal.App.4th 5, 15–16; In re Jose T. (1991) 230 Cal.App.3d 1455,
1460–1461.)
In addition, the defendants' common gang membership was
relevant and admissible as to identity, bias, and impeachment. In
his postarrest statement, Williams said that “Alex” and not Easter
was the gunman for the Franco robbery. At trial, Thompson
refused to identify the third suspect in the Franco and Gaynor
robberies, and gave equivocal testimony about whether Easter was
that man. For example, in People v. Ruiz (1998) 62 Cal.App.4th
234, the defendant was charged with selling drugs to an
undercover officer. The defendant argued that a third party was
guilty of the offense, based on that person's alleged confession to a
defense investigator. Ruiz held the trial court properly permitted
the prosecution to introduce evidence that the defendant and the
third party were members of the same gang and likely knew each
other, because the evidence was relevant for impeachment and
bias. (Id. at pp. 240–243.)
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.”

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(Burnell, supra, 132 Cal.App.4th at p 947.) Defendants failed to
carry their burden to clearly establish that there was a substantial
danger of prejudice requiring that the charges be separately tried
for severance. The gang evidence was cross-admissible as to aiding
and abetting, identity, and bias of the witnesses. The substantive
gang charge 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 jury was correctly
instructed on the limited purpose of gang evidence, including the
limited admissibility of the two videos. (CALCRIM NO. 1403.)
We presume the jury followed the instructions. (Cf. Hernandez,
supra, 33 Cal.4th at pp. 1052–1053.)
E. Due process
Finally, Thompson argues the denial of his motions for bifurcation
and/or severance violated his due process right to a fair trial on the
robbery charges, because of the alleged “gross unfairness” that
resulted from the introduction of the gang evidence in this case.
Thompson'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 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.)

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However, Albarran dealt with a factual scenario that was different
from this case. 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. The trial court
permitted the prosecution to introduce gang evidence to prove the
defendant's motive and intent. The jury convicted the defendant of
the substantive offenses and found the gang enhancements were
true. Thereafter, the trial court granted defendant's posttrial motion
and dismissed the gang allegations for insufficient evidence.
(Albarran, supra, 149 Cal.App.4th at pp. 217–222.)

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Albarran held that while the trial court may have initially found
that the 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 irrelevant to the 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, and references to the Mexican Mafia prison

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gang. Albarran characterized the irrelevant gang evidence as
“overkill,” (id. at p. 228, fn. omitted) and “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, fn. omitted.) Albarran found the 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.)
In contrast to Albarran, 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.) The defendants in this case were charged with both the gang
substantive offense and enhancements. The trial court did not grant
a posttrial motion to dismiss either count IV or the enhancements.
As we have explained, the jury was properly instructed on the
limited admissibility of the gang evidence. As we will also explain
in issues II and III, post, the jury's findings on the gang substantive
offense and enhancements are supported by substantial evidence.

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More importantly, Officer Flowers's expert testimony regarding
the criminal activities of the Playboyz was not similar to the
sensational and prejudicial testimony admitted in Albarran. While
Flowers addressed predicate offenses committed by other members
of the Playboyz, his testimony was limited to the essential facts
which the prosecution was required to prove for the elements of
both the gang substantive offense and the enhancements. The gang
evidence in this case was no more sensational than the evidence as
to the three Craigslist armed robberies committed against the
victims in this case. The court did not abuse its discretion when it
denied bifurcation and severance of the gang allegations, and the
admission of the gang evidence did not violate defendant's due
process rights.

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(LD 5 at 14-18).
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The United States Supreme Court has never issued a ruling on the issue that Petitioner
raises in this claim, although it has expressly declined to require bifurcation in a criminal jury
trial when the prosecutor seeks to admit evidence of defendant’s prior convictions during the trial
to prove a sentence enhancement charge under a recidivist statute. See Spencer v. Texas, 385
U.S. 554, 565-66 (1967). Therefore, there is no clearly established Supreme Court precedent,
and Petitioner cannot argue that the state court acted contrary to clearly established Supreme
Court precedent. Moreover, federal courts cannot conduct a “finely tuned review of the wisdom
of state evidentiary rules.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983).
Nevertheless, Respondent argues that the trial court’s decision not to sever the

28

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1 substantive gang offense and bifurcate the gang enhancement allegations did not render
2 Petitioner’s trial fundamentally unfair.

Respondent argues that the gang evidence was

3 intertwined with the charged offenses as to several relevant issues, particularly mental state,
4 identity, and bias, so that severance and bifurcation were not necessary.
5

Petitioner must demonstrate that the trial court’s decision not to sever and bifurcate

6 rendered the state trial fundamentally unfair in order to establish a constitutional violation
7 warranting habeas relief. See Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991). It
8 was reasonable for the state court to find that one of the key issues in the Gaynor robbery was the
9 culpability of Williams and Petitioner, and therefore, the joint gang status was clearly relevant to
10 prove that they had aided and abetted the robbery. It was also reasonable for the state court to
11 find that the defendants’ common gang membership in the Playboyz was relevant and admissible
12 to impeach Williams’s post arrest statement in which he claimed a third party was the gunman in
13 the Franco robbery. The gang evidence was also relevant to establish Petitioner’s identity as the
14 third suspect in the Franco robbery. Therefore, the gang evidence was cross admissible, and
15 Petitioner has not established that the trial court’s decision to not sever the substantive gang
16 offense and bifurcate the gang enhancements rendered his trial fundamentally unfair in violation
17 of his due process rights. In addition, Petitioner has not established prejudice, as the evidence of
18 membership in the Playboyz was not highly prejudicial or inflammatory in light of the nature of
19 the charges. Therefore, this claim must be denied.
20

3. Claims raised in Traverse

21

In Petitioner’s traverse, he appears to raise an argument that there was insufficient

22 evidence to convict him of the crimes which he was convicted of. Although Petitioner may have
23 just raised this claim in the context of the prejudice prong for his ineffective assistance of
24 counsel claim, this Court will liberally construe Petitioner’s filing and address it as a separate
25 claim raised in the traverse. To the extent Petitioner is attempting to belatedly raise new claims
26 in the traverse, relief must be denied, because it is improper to raise new claims in a traverse.
27 See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); Greenwood v. Fed. Aviation
28 Admin., 28 F.3d 971, 977 (9th Cir. 1994); Rule 2(c)(1) of Rules Governing Section 2254 Cases.

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2

IV.
CERTIFICATE OF APPEALABILITY

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4

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

5 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.
6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining
7 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
8
9

(a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which
the proceeding is held.

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(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of
such person’s detention pending removal proceedings.

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(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from–

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(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by
a State court; or

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(B) the final order in a proceeding under section 2255.
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(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).

22
23

If a court denies a petitioner’s petition, the court may only issue a certificate of

24 appealability “if jurists of reason could disagree with the district court’s resolution of his
25 constitutional claims or that jurists could conclude the issues presented are adequate to deserve
26 encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473,
27 484 (2000). While the petitioner is not required to prove the merits of his case, he must
28 demonstrate “something more than the absence of frivolity or the existence of mere good faith on

38

1 his . . . part.” Miller-El, 537 U.S. at 338.
In the present case, the Court finds that reasonable jurists would not find the Court’s

2

3 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
4 deserving of encouragement to proceed further. Petitioner has not made the required substantial
5 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to
6 issue a certificate of appealability.
7

V.

8

ORDER

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Accordingly, this Court hereby ORDERS that:

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1) The Petition for Writ of Habeas Corpus is DENIED;

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2) The Clerk of Court is DIRECTED to enter judgment for Respondent and close the
case; and

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3) The Court declines to issue a certificate of appealability.

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IT IS SO ORDERED.

18 Dated:

January 29, 2015
UNITED STATES MAGISTRATE JUDGE

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