Dixon v. Rackley et al

Filing 25

FINDINGS and RECOMMENDATION Regarding Petition for Writ of Habeas Corpus 1 , signed by Magistrate Judge Michael J. Seng on 4/14/17: 30-Day Deadline. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:14-cv-01149 AWI MJS (HC)
JOSEPH KEVIN DIXON,

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FINDINGS AND RECOMMENDATION
Petitioner, REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

v.

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RON RACKLEY,

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Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Tami Krenzin of the

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office of the California Attorney General. Respondent declined magistrate judge

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jurisdiction. (ECF No. 11.)

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I.

Procedural Background

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Petitioner is currently in the custody of the California Department of Corrections

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pursuant to a judgment of the Superior Court of California, County of Kern, following his

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conviction by jury trial on March 20, 2009, for three counts of first degree murder, two
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counts of attempted murder, conspiracy, shooting at an occupied vehicle, active

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participation in a criminal street gang, two counts of possession of a firearm by a felon,

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and multiple enhancements. (Lodged Doc. 11.) On April 20, 2009, Petitioner was

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sentenced to three consecutive terms of life without the possibility of parole in addition to

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an indeterminate term of 238 years to life in prison. (Id.)

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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

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District on May 10, 2010. (Lodged Doc. 1.) On April 26, 2012, the appellate court

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reversed the conviction for conspiracy and noted several sentencing errors, but

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otherwise affirmed the conviction. (Lodged Doc. 4.) Both Petitioner and Respondent

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sought review by the California Supreme Court on June 1, 2012. (Lodged Doc. 6.)

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Petitioner’s petition for review was summarily denied, however, the California Supreme

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Court granted Respondent’s petition for review on August 15, 2012. (Lodged Doc. 7.) On

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July 18, 2013, the California reversed the Court of Appeal’s decision regarding elements

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of the criminal gang participation enhancements. (Lodged Doc. 8.) On September 25,

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2013, the Court of Appeal issued a revised and amended opinion in light of the reversal

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from the California Supreme Court. (Lodged Doc. 9.) On October 22, 2014, the Kern

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County Superior Court issued a corrected abstract of judgment. (Lodged Doc. 11.)

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Petitioner filed his federal habeas petition on July 14, 2014 raising the following
twelve claims for relief:
1) That the trial court erred in admitting and instructing the jury regarding
irrelevant and inflammatory prior gang-related offenses;

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2) That the trial court violated Petitioner’s due process rights by admitting witness

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Agustin’s testimony of co-defendant Johnson’s statements which were against

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Petitioner’s interests at trial;

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3) That the trial court violated Petitioner’s due process rights by admitting the

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Jackson’s testimony that Petitioner made incriminating statements after he was arrested;

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4.) That Petitioner’s due process was violated by the admission of the erroneous

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statements of prosecution’s gang expert;
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5.) That the trial court erred in denying Petitioner’s Wheeler/Batson motions

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regarding the striking of disabled and African-American persons from the jury;
6.) That the trial court violated Petitioner’s due process by denying Petitioner’s

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motion for change of venue;
7.) The trial court violated Petitioner’s right to a fair trial by ordering Petitioner to

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be restrained;
8.) The trial court violated Petitioner’s due process rights by not dismissing two

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jurors that may have been engaged in premature deliberation of Petitioner’s case;

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9.) That the trial court improperly instructed the jury with CALCRIM No. 373
regarding uncharged participants;

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10.) That the instructions regarding gang evidence and enhancements were in
error, violating Petitioner’s due process rights;

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11.) That the accomplice liability jury instructions were in error and violated
Petitioner’s due process, right to a fair trial, and right to a jury determination; and

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12.) Cumulative error.

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(See generally, Pet., ECF No. 1.) Respondent filed an answer to the petition on

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November 21, 2014. (Answer, ECF No. 18.) Petitioner did not file a traverse.

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II.

Statement of Facts1

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I.

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Events Surrounding March 21, 2007

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Early on the morning of March 20, 2007, someone shot Venesta
Grinnage's vehicle, which was parked in front of her home in the 4300
block of Deborah Street in Bakersfield.[fn4] Grinnage's son, Daniel Davis,
frequented the house, although he did not live there. Multiple shell casings
from three different semiautomatic firearms were found in the street.
Although no suspects could be developed, a neighbor reported seeing a
burgundy Honda drive slowly by shortly after 3:30 a.m. and again about 15
minutes later. The car had tinted windows and she could not see inside it.
About 4:00 a.m., she heard what sounded like numerous gunshots.

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Prosecution Evidence

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The Fifth District Court of Appeal’s summary of the facts in its September 25, 2013 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).
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FN4: All dates are in the year 2007 unless otherwise stated.
Some of the law enforcement officers who testified had
received promotions or retired by the time of trial. To the
extent possible, we refer to them by the titles they had at the
time of events.
A number of peripheral actors in the case were regularly
referred to at trial by their nicknames or monikers. For the
most part, we use the same appellations for the sake of
clarity.
Last, exact addresses were given at trial.
Just after midnight on March 21, Bakersfield Police Officers Shaff
and Williamson, both members of the police department's Special
Enforcement Unit (also known as SEU or the gang unit) were dispatched
to an address on Myrtle Street in response to a call in which the reporting
party said he had been shot at and his vehicle had been hit with bullets.
Upon arrival, Shaff contacted Lee, who reported he had been standing by
his vehicle in front of a residence in the 800 block of Deanna Way, talking
with some friends, when an older silver or green Jeep drove by and shots
were fired at him and his friends. Lee said the incident occurred about half
an hour before he called the police, and that he had left the area and gone
home. Shaff noted that Lee seemed unusually vague in terms of
information he was giving. For instance, he would not identify the friends
who had been present, and he seemed very hesitant when Shaff asked for
specifics about the other vehicle and its occupants.
There were what appeared to be bullet holes in Lee's vehicle, a
2000 Chevrolet Tahoe that belonged to his father. Shell casings and bullet
fragments from at least one gun were found in the 800 block of Deanna
Way, where Lee said the shooting had occurred.
As of March 21, the area of Monterey and Inyo in Bakersfield was
known to SEU officers as an area that was controlled by the Bloods
criminal street gang, a group that was associated with the color red. The
Country Boy Crips, who were associated with the color powder blue, were
active rivals of the Bloods at the time. The Bloods had somewhat of an
alliance with the Westside Crips, and were not actively quarrelling with the
Eastside Crips. The corner was a known narcotics location, with sales
being made out of the apartment complex there. The territory of a local
Hispanic gang, which also sold narcotics, began nearby.
Around 6:45 that evening, Edwin McGowan was talking to friends
outside the apartments when he heard some shots. He tried to run, but
fell, having been struck. He saw a male wearing a burgundy hoodie
shooting a little gun over the top of a car. When McGowan fell, the person
ran behind him and shot him two more times, then took off running.
McGowan could see the eyes and upper nose of this person, who was not
wearing a mask. McGowan denied ever having seen defendants.
Officer Meek interviewed McGowan in the emergency room.
McGowan described the shooter as a tall, light-skinned African-American
male, 17 to 21 years old, wearing a red hooded sweatshirt, dark pants, a
dark ball cap, and clear glasses. Meek confirmed that McGowan was
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certain the race was African-American and not Hispanic. When asked,
McGowan said he would be able to identify the person if he saw him.[fn5]
FN5: McGowan denied telling Meek that a light-skinned
African-American male shot him. Rather, he told Meek the
shooter could have been Hispanic or "a bright-skinned"
male. McGowan told the grand jury that the shooter was a
very light-skinned person, but he could not tell his race.
McGowan did not consider any of the defendants to be lightskinned. They all appeared to be African-American to him.
On October 4, Bakersfield Police Detective Darbee showed
McGowan a photographic lineup that included a picture of Johnson, whom
Darbee considered to be light to medium-skinned. McGowan said he did
not recognize anyone, and did not know who shot him because the person
had a hoodie over his face. When confronted with the fact that he had told
Meek he would be able to identify the shooter, McGowan was hesitant to
answer and asked if Darbee knew what would happen to his family if he
were to identify anyone or testify against anyone in court.
At the scene, adult-sized footprints, with a stride length suggesting
the person had been running, led from the area in which McGowan had
lain in front of one of the apartments, toward where a hole had been cut in
the chain-link fence at the far corner of the parking lot.[fn6] Three spent
.25-caliber shell casings were found near the door of the apartment where
McGowan had lain, and another was recovered from the parking lot. All
four had been fired from the same gun.
FN6: A canal ran parallel to Monterey Street about a block
away. A traversable alleyway ran along both sides of the
canal.
All told, McGowan was struck three times in the back. He suffered
major abdominal injuries that necessitated multiple surgeries. Taken
together, his injuries were life-threatening.
Sometime between 8:00 p.m. and 10:45 p.m. on March 22, Michael
Wilcox was inside his home in the 4200 block of Deborah Street, when he
heard six to 10 gunshots. Looking out, he saw a person, who appeared to
be in the area of the Grinnage house, shooting at a van that was driving
away. The van was white with blue trim, and Wilcox had seen it before in
the neighborhood. The driver was an African-American male; Wilcox could
not tell if anyone else was in the vehicle.
Around 10:45 p.m., Jorge Garcia, who lived in the vicinity, was
cleaning his garage when he heard around three gunshots. Before that,
there had been some males behind his house, drinking and playing loud
music. When he heard the shots, he went to the back to see if they were
having a fight, but nobody was around. Garcia returned to cleaning the
garage with the door open, then Lee walked in, said he had been shot,
and asked Garcia to give him a ride around the corner. Lee had been shot
in the left arm and the right hand and fingers. Garcia took him to the
location in the 800 block of Deanna Way at which Lee's vehicle had
previously been shot. The people there called the police and an
ambulance.

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Bakersfield Police Officer Hernandez responded to the scene. At
the same time, the Kern County Sheriff's Deputies Chandler and Moreno
were responding to a report of "an illegal shooting" in the 4300 block of
Kenny Street, one street east of Deborah Street.[fn7] Chandler attempted
to talk to Lee, but Lee did not respond to any of Chandler's questions. Lee
was not in possession of a handgun.
FN7: The 4300 blocks of Deborah, Kenny, and Eve Streets
are in a county pocket; hence, the different law enforcement
jurisdictions.
Investigation revealed broken automobile glass and what appeared
to be part of an automobile window frame near the Grinnage house. On
the east side of Deborah Street were a number of spent shell casings.
Some were grouped in one place, while two were apart from the others.
Eight had been fired from the same gun, while one was from a different
firearm — the same firearm as some of the shell casings recovered from
the March 20 shooting of Grinnage's vehicle.

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Chandler and Moreno contacted Lee in the hospital emergency
room. Told shell casings had been found in the 4300 block of Deborah
Street, Lee said he had been walking southbound in the 4300 block of
Deborah Street, when he saw subjects in a green 1995 or 1996 Jeep pull
up alongside him. He saw a flash and heard five to six shots. He
described the route he ran before reaching Garcia's garage. A blood trail
was found in that area, but no weapon.

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Events Surrounding April 19, 2007

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As of April 19, James Wallace resided with his mother, Kathie Oats,
not far from McNew Court in Bakersfield. Dixon's mother and Wallace's
father, who lived on Watts Drive in a part of town called the Country, were
cousins, although Oats believed Dixon and Wallace had only been
introduced once. Wallace had never been arrested and was not in a gang.

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On April 19, Wilma Shaw, the aunt of Wallace's best friend, held a
barbecue in the front yard of her residence in the 1300 block of McNew
Court. Her guests, who included Wallace and her nephews, Anthony and
Othelon Lyons, were outside off and on most of the day, talking and
playing music in the front yard.[fn8] When it began to get dark, Shaw went
inside to attend to her grandchildren. Not long after, she heard multiple
gunshots.
FN8: For the sake of clarity, we refer to Anthony and Othelon
Lyons, and Mikeshiea and Myeshia Herring, by their first
names. No disrespect is intended.

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Anthony had been at his aunt's house all day, as he usually was
during this time period. Just before 8:00 p.m., he was in the front yard,
hooking up music with his cousin, Curtis Miller, in Miller's Tahoe. The
vehicle was parked in the driveway of Shaw's apartment complex. Helping
him were his younger brother, Othelon, and Wallace. At some point,
another cousin, Albert Darrett, arrived with his girlfriend in a black Tahoe
and parked on the wrong side of the street.

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Anthony went up to the driver's side of the vehicle to talk to Darrett,

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and leaned in as they conversed. Anthony was moving away from the
vehicle when he saw a tall person, weighing about 200 pounds, in the
middle of the street. The person, who was dressed all in black, started
shooting toward the house. Anthony only saw one person, and could not
tell if it was a man or a woman or the person's race, because the person
had on a hoodie with the hood up.[fn9]
FN9: Anthony had no vision in his right eye, having been
shot in 2004. He was also grazed in the head in 2005. His
older half-brother, Deshawn Peterson, was shot and killed
on Feliz Drive about four years earlier. Anthony had met
Johnson, who was Peterson's cousin, one time about six
years earlier. Anthony was a child when he last saw
Johnson, and would not recognize him if he saw him again.
He did not see Johnson on the night of April 19, although he
had heard that Johnson used to cut people's hair in the area.
At some point, Anthony was shown photographic lineups containing
Johnson's and Lee's pictures. Anthony did not identify either defendant as
one of the shooters. He said it was dark and he did not get a good look at
the people who shot him.
Anthony ran toward the back door of Shaw's residence. He
believed Wallace was by Miller's truck, and Miller was inside the truck.
Wallace was running ahead of Anthony toward the house, then Anthony
saw Wallace fall down. Anthony ran through the back entrance and out the
front. Wallace was on the front porch, lying on his stomach on the step in
a pool of blood.
Anthony believed he heard about five shots. He was struck above
the right hip. The bullet remained in his body at the time of trial, as he
refused to have it removed for fear of possible complications.[fn10]
FN10: Sheriff's Sergeant Marshall interviewed Anthony at
the hospital on the evening of the shooting. Anthony related
that he saw a Black male, about five feet eight or nine inches
tall, wearing a black hoodie, walking from west to east
across the street near a white van. The shooter was by the
white van, and when the shooting started, Anthony ran. He
was in the parking lot of the apartment complex when he felt
himself get hit with a bullet. When Marshall explained that he
really needed the bullet as physical evidence, Anthony
agreed to have an elective procedure so it could be
retrieved. He did not express any hesitation about having the
surgery.
As of April 19, Albert Darrett resided in Bakersfield with his
girlfriend, Vanessa Alcala, and her mother and child. Alcala was pregnant
with Darrett's son.
Darrett worked in oilfield construction.[fn11] On April 19, he needed
to cash his paycheck, so he picked up Alcala and they drove in his black
Chevrolet Tahoe to the store on the corner of Feliz Drive and Cottonwood
Road. After he cashed his check, they went south on Cottonwood Road to
the first street, McNew Court, and went to Shaw's house. Shaw was
Darrett's aunt, and it was his habit to stop by her house for a few minutes
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every day after work. On April 19, family and friends were in her driveway.
Curtis Miller was one of the cousins who was there. Like Darrett, Miller
drove a black Chevrolet Tahoe, which was parked at Shaw's residence.
FN11: Darrett admitted being booked into the Kern County
jail four days before the shooting, and stating at that time
that he associated with the Crips. He denied saying,
however, that he wanted to be kept away from Country Boy
Crips. He initially denied, but then admitted, once having a
tattoo on his arm that read "805 ESC," meaning the area
code for Bakersfield and Eastside Crip. He was about 15
years old when he got the tattoo. He was older by the time of
trial and not in a gang, although he knew people who were in
the Eastside Crips.
Darrett pulled over on the wrong side of the street (facing west)
next to the driveway, left his vehicle running, and started talking to his
cousin, Anthony, who was at the driver's side door. Alcala remained in the
passenger seat. Darrett and Anthony conversed for a couple of minutes. It
was light out, but getting dark. Darrett saw two people walking up the
opposite side of the street, headed in the direction of Cottonwood Road.
They were about halfway down the block when he first saw them, and he
did not pay much attention to them. He did not see either of them get out
of an automobile or come out of a house, and he saw nothing in either
one's hands.
Darrett continued to talk to Anthony, then glanced at the two and
saw them crossing the street in a diagonal direction toward him. They
crossed the street together, then came up to the car and spread out so
they were a couple of feet apart. One was toward the passenger's side of
the vehicle, while the other was right in front of it. Both were no more than
five feet from the vehicle, and both then started shooting. One shot toward
the apartment complex, while the other shot toward the vehicle. Darrett
tried to duck. He did not hear anything from Alcala or see what she or
anyone else did.
After the shooting stopped, Darrett saw the two men running back
in the direction from which they had come. Although he did not see their
faces, he believed they were African-American. They appeared to be
around 5 feet 10 or 11 inches tall, and were thin. Although Darrett could
not tell their approximate ages, he believed they were younger than
him.[fn12] Both were dressed all in black. At least one, and possibly both,
wore a black hooded sweatshirt with the hood pulled over his head.
Darrett tried to run them over, but was unsuccessful because they ran
back the other direction, toward Cottonwood Road. They separated, with
one running north toward Feliz Drive, and one running south toward
Cannon, via the dirt alleyway next to Shaw's apartment. Darrett did not
see either of them taking off their clothes or trying to jump a fence to get
away.
FN12: Darrett was 31 years old as of December 19, 2008.
Dixon was between five feet six and five feet seven inches
tall.
Halfway up the block, Darrett turned to look at Alcala. She was
bleeding and unresponsive, and he realized she had been shot. He drove
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her to Kern Medical Center. He did not see either of the shooters exit onto
Feliz Drive or any cars leaving or trying to flee, but he was not really
paying attention.
At 7:58 p.m., the Kern County Sheriff's Department received a 911
call from the McNew Court address, reporting a shooting. Senior Deputy
Lostaunau arrived four minutes later, and the helicopter and other
deputies shortly after that. Lostaunau, who was in the gang unit at the
time, had driven down several of the streets in the area before the
shooting was reported, looking for people to contact or anything that
appeared to be out of the ordinary. He did not come across any parked
car containing three African-American males or make contact with a group
of three African-American males on foot. He did not see anybody jumping
fences or running, or any vehicle fleeing at a high rate of speed.
Lostaunau parked a few feet west of the driveway into the
apartments and found empty cartridge casings on the ground at his feet
when he got out of his car.[fn13] He also smelled gunpowder and saw a
person down on the ground in front of the apartment. He could hear
screaming coming from the apartment.
FN13: Five spent .38-caliber Super Plus P shell casings
were found. That kind of ammunition normally is used in
semiautomatic firearms. No fingerprints were found on the
casings. The core of a round of jacketed ammunition was
found in the front passenger side door of Darrett's vehicle.
The spent shell casings found on McNew Court were fired
from the same firearm. A partial fingerprint, which could not
be identified when compared to the prints of defendants,
Darrett, and Alcala, was found on the rear passenger
window exterior.
Detective Armendariz investigated a number of vehicles at or near
the scene of the shooting. None were registered to or associated with any
defendant. The white van parked across the street and to the west of
Shaw's residence belonged to the Fuentes family.
Lostaunau approached the apartment and asked what happened
and who did it. Someone inside yelled that it was a Black male, and
Lostaunau broadcast that over his radio. He then started attending to
Wallace. When he put his hand on Wallace's back, he felt it rise at least
once with a breath. Within seconds, however, Lostaunau could feel no
more breathing and was unable to find a pulse. Deputy Adams, a former
paramedic, determined Wallace was deceased.
Around 8:00 p.m., Leon Reyes was asleep in the back room of his
house on the south side of McNew Court, in the same block as Shaw's
residence, when he heard a racket at the fence separating his front yard
from his back yard on the west side of the house. He stepped out onto his
back porch and saw someone jump the fence separating his back yard
from his neighbor to the south. He could not see who it was, but the
person could have been wearing dark clothing.
Reyes immediately went to the front yard to check on his car. As he
did, he saw Deputy Ollague going down McNew Court. Reyes informed
Ollague that a subject wearing white tennis shoes and dark clothing had
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just gone over his fence. Ollague and a K-9 deputy searched the front and
back yards, but found nothing.
One of the units responding to the scene was the helicopter, Air
One. It did not report anyone who appeared to be fleeing the scene,
although it did report a subject walking on Feliz Drive near Cottonwood
Road, a location one block north of the shooting and east of where the dirt
alley from McNew Court came out onto Feliz Drive. The subject appeared
to be wearing dark clothing and white shoes. Contact was made with this
person, a teenager, who was searched, questioned, and released.
Just before 8:00 p.m. on April 19, Rebecca Martinez, who lived in
the 1200 block of McNew Court, heard five to six gunshots, a scream that
sounded female, and tires "peeling out." Martinez called 911. When
Sheriff's Sergeant Rennie contacted her, she pointed him to the house
directly across the street, where a large dog was barking near the east
fence line. Martinez suggested Rennie check that yard, because the
residents were not home and the dog rarely barked.
Rennie checked the house and saw that it appeared to be secure.
When he looked under one of the vehicles parked in the driveway of the
house immediately to the east, which was across the street and four
houses down from the location of the shooting, however, he saw a small
pile of dark clothing that consisted of a dark-colored baseball cap bearing
the Boston Red Sox logo (a red B), a Nike brand U.S.A. Basketball
Michael Jordan jersey, a dark blue or black Navy-style Volcom-brand pea
coat, and a beige or tan American Dawn-brand smock-type shirt. A
Samsung cellular telephone was found in one of the coat pockets. The
clothes did not belong to anyone in that household, and had not been
there earlier that evening.[fn14]
FN14: From March 16 through April 12, Johnson attended
Bakersfield Barber College. Students were required to wear
a tan, short-sleeved smock. The school generally issued
students a Brick McMann-brand smock with an American
Dawn logo.
Following their arrests, DNA samples were obtained from
defendants and compared to DNA extracted from various places on the
items of clothing. All three defendants were among the five or more
contributors to the DNA found on the coat. Because of the number of
contributors, the astronomically rare frequencies (probability of finding that
genetic profile in the general population) typically found with a singlesource genetic profile were not obtained. Thus, for example, although
Johnson was included as a contributor to the mixture found on the coat
collar, approximately one in 25 people could also have had the same
profile and been contributors. The frequencies were similarly common with
respect to Lee and Dixon. Where such common frequencies were
obtained, Gary Harmor, the senior forensic serologist at the Serological
Research Institute who conducted the DNA analysis in this case, could not
say with certainty that a particular defendant touched the particular item.
DNA extracted from various places on the smock was also a
mixture of contributors, with all three defendants included. Frequencies
again were common, except with respect to the three-contributor mixture
found on the inside front collar. Johnson's genetic types showed up
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strongly enough that it could be determined only approximately one out of
every 1.1 million people would have genetic types consistent with what
was found in the evidence compared to Johnson.
DNA extracted from the jersey was also a mixture of contributors.
Lee was excluded as a possible contributor. Dixon could not be excluded.
Johnson was included as a possible contributor; with respect to the
mixture found on the inside front collar, only one in 8.8 million people
could have the same types. A frequency calculation of that magnitude was
quite significant where a mixture was concerned.
DNA extracted from the sweatband of the cap was a mixture of at
least four contributors. Johnson could not be excluded as a contributor,
but the statistical analysis showed that approximately one in 1144 persons
would have a type similar to that contributor. Lee and Dixon were
excluded as contributors to the DNA on the baseball cap.
Senior Deputy Little contacted Othelon at the scene. After learning
that Othelon had witnessed some of what happened, Little took Othelon to
his patrol car, activated his tape recorder, and took his statement. Othelon
was cooperative.
Othelon told Little that he was sitting in the backseat of his cousin's
truck, eating and hooking up music, when his cousin Darrett and Alcala
pulled up. They were facing west, and Anthony, Miller, and Wallace were
standing by the driver's side, talking to Darrett. Othelon heard shots. He
opened the door and looked back, and saw one of the assailants jump the
fence into a field. This person was wearing a black hoodie with the hood
up, and a white Pro Club shirt over the black hoodie. He was AfricanAmerican, 18 to 20 years old, around six feet tall and 180 to 185 pounds,
and with a dark complexion. Othelon did not see this one with a gun. The
other one ran down the alley. He was dressed all in black. He had a
handgun pointed toward Shaw's house and was running southbound. He
was African-American, 18 to 19 years old, about 5 feet 10 inches tall,
weighed 160 or 165 pounds, and was dark-complected. One of the two
had a "punk" hairstyle, a "short bush [A]fro."[fn15] The gun was all black
and sounded like a nine-millimeter. Nothing was said before the shooting
started. After, everyone ran into the house. Wallace only made it to the
porch.
FN15: Little was in contact with Johnson sometime after the
shooting. Johnson did not have an Afro, nor was a small Afro
wig found. Little also saw Dixon two days after the McNew
Court shootings. There was no indication Dixon shaved or
cut his hair in the preceding couple of days, nor were any
wigs found on him.
Othelon related that he did not see any cars come up and stop
anywhere in the area before the shooting started, and that he did not
notice the shooters until after they had stopped shooting. Othelon
estimated he heard at least eight shots, and that it sounded like they all
came from the same gun. He did not recognize either of the assailants,
although he believed he would probably recognize them if he saw them
again.[fn16]

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FN16: At trial, Othelon testified that just before the shooting,
he was sitting in Miller's truck, installing stereo speakers. He
further testified that the only time he ever saw Dixon was
when they both were in prison sometime after the shooting,
but the two were in different locations and never met.
Beyond that, Othelon claimed that he was unable to
remember anything, did not want to testify, and was not
going to identify anyone. He did not remember talking to
Little or what he told the grand jury.
Kern County Sheriff's Senior Deputy Pratt spoke to Othelon on
February 1, 2008, while Othelon was in prison. Othelon admitted being a
gang member. He said he was Eastside or Stroller Boys, and that at the
time of the shooting, things had been "pretty tense" between Eastside and
the Country. Pratt again talked to Othelon on December 10, 2008, after
Othelon paroled, with respect to a rumor Pratt had heard about Othelon
being threatened by Dixon while in prison. Othelon denied being
threatened and said that if Dixon had threatened him, Othelon would have
"taken him out." Othelon told Pratt that he used to live in the Country and
knew Dixon from his childhood, when they would ride dirt bikes together.
Othelon said Dixon told him, as kind of an apology, "I didn't know it was
your auntie's house."
When brought into the hospital, Alcala was in a deep coma. She
had a penetrating injury to the posterior portion of the occipital area of the
brain, with the entry site on the right lower back portion of the skull and the
bullet's direction of travel upward to the left, and back to front. There were
bone and metallic fragments in her brain. She died during surgery
performed in an attempt to control her continued rapid bleeding. The
cause of death was gunshot wound of the head. Alcala was pregnant with
a boy whose gestational age was approximately 12 to 14 weeks. The fetus
was medically healthy and died as a result of the mother's gunshot wound
to the head.
Wallace suffered an entrance gunshot wound to the right side of his
chest, underneath the armpit, with an exit wound in the left shoulder area.
The bullet traveled right to left and slightly upward. The absence of soot or
stippling indicated the weapon was more than three to four feet from him
when the shot was fired. The cause of death was gunshot wound of the
chest. As the bullet injured internal organs and major vasculature of the
heart, he lived a matter of a minute to minutes after he was shot.
The day after the shooting, Marshall and Little began investigating
the Samsung cell phone found in the coat pocket. Marshall ultimately was
able to determine the phone's number. At about 2:00 p.m., the phone
rang, and the caller asked for "Dodo." Little checked some law
enforcement databases and discovered that Dixon used the moniker
Dodo. Little obtained photographs of Dixon maintained by law
enforcement. They revealed that Dixon bore tattoos related to the Country
Boy Crips and its Watts and Lotus clique. There were photographs of
Dixon stored in the phone's memory. The screensaver for the phone read,
"Watts wit it."
Further investigation into Dixon led Little to an apartment in the
2600 block of Chandler Court, Bakersfield, which was the residence of
Myeshia Herring. Myeshia related that Dixon had called her and said he
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needed a place to stay because of some parole issues. She texted him
the address. He moved in Wednesday, April 18; she did not see him at all
on Thursday, April 19; they left together on Friday, April 20; when she got
back early Saturday morning, he was not there, but he was there when
she got up later that day; later on Saturday, he left with Myeshia's friend,
Gina Stewart, in a white 1990's Chevrolet Caprice. Little examined
Myeshia's cell phone, which contained the number of the Samsung cell
phone found in the coat pocket in the address book under the name
"friend."
Little told Myeshia to tell Dixon to call Little when she saw Dixon.
About three hours later, Dixon contacted Little and then voluntarily came
to the sheriff's office. Little took identifying photographs and more detailed
photographs of Dixon's tattoos. Dixon, who was wearing dark blue pants
and light blue boxers, was allowed to leave after he was photographed.
On April 25, Little interviewed Myeshia again.[fn17] Myeshia
reiterated that Dixon needed a place to stay, and she simply replied by
text message to whatever number he used to contact her. Dixon moved
into the apartment Wednesday and spent the night. Thursday, the night of
the McNew Court shootings, he was at the apartment in the daytime, but
not at night. When Myeshia woke Friday morning, Dixon was not there,
but he did spend the night Friday. Myeshia related that she had Dixon's
number stored in her phone as "friend," and that he had grown suspicious
of her after Little interviewed her the first time.
FN17: At trial, Myeshia either denied, or testified she did not
recall, telling Little anything about Dixon during the interview.
A video recording of the interview was shown to the jury.
Myeshia related that her nickname was "Messy 1," and that she
had known Dixon since they were in junior high school. She said she saw
Dixon on the day he got out of prison. With respect to the Samsung cell
phone found in the coat pocket, Myeshia related that her sister Mikeshiea
gave the cell phone to Dixon shortly after his release from prison. Myeshia
said that every time she called that phone, Dixon answered.
Myeshia related that about a week before this interview, Dixon
called Myeshia from a number she did not recognize. When she asked
him about why he was calling from that number, he said he did not have
his other phone because he had lost it. When she asked how he lost it, he
told her not to worry about it.
Myeshia said she had known Johnson for several years. He had a
girlfriend who was Hispanic and several years older than him. Myeshia
said she had never known Johnson and Dixon to be close. Dixon was
always by himself or with "the girls."
Meanwhile, Marshall obtained a search warrant for the subscriber
information and tolls for the Samsung cell phone found in the coat pocket.
Records listed the phone's subscriber as Dominique S. Clayton, with an
address in the 4400 block of Balboa Drive, Bakersfield. The phone was
activated on March 10. On the evening of April 27, Rennie and Little went
to an apartment in the 4400 block of Balboa Drive — the same street
address as the subscriber of the phone found in the coat — to interview

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Mikeshiea. Mikeshiea's middle name was Dominique, and she had a child
by Gary Clayton.
Mikeshiea gave Little and Rennie permission to enter to look for
Dixon. They did not find him. Mikeshiea denied knowing anyone named
Dominique Clayton or ever giving Dixon a cell phone, although she
admitted knowing someone named Dodo and identified Dixon's
photograph.
Little examined Mikeshiea's cell phone. The screen read "Messina
#2." When he inquired of Mikeshiea, she said that she and her sister
Myeshia used the names "Messy 1" and "Messy 2." Mikeshiea said she
was Messy 2, while Myeshia was Messy 1. Little found no reference in
Mikeshiea's phone's contents to the number of the Samsung cell phone
found in the coat pocket or to the name Dodo. There was, however, a
number for "Pook," whom Mikeshiea identified as Columbus Holford and
with whom Little was familiar.[fn18]
FN18: Mikeshiea testified at trial that she and Myeshia never
went by the nicknames Messy 1 and Messy 2. On
Mikeshiea's MySpace page, however, she referred to herself
as Messy, while people who posted messages to her
referred to her as Messy or Messy 2. At trial, Mikeshiea
testified that she had never heard of or called the number of
the cell phone found on McNew Court and did not know
Dixon personally, although she knew him to be a friend of
her sister. She denied ever giving him a cell phone.
Myeshia also denied telling Little the things to which he testified.
She testified that she had only known Dixon, whom she knew as Dodo, for
a couple of years. Although she was aware he went to prison, she did not
meet with him the first day he got out. She did not know if Dixon had a cell
phone. She and Mikeshiea did not help him get that phone. Myeshia had
seen Johnson and knew who he was, but had not spoken to him. Myeshia
knew Lee, as he had lived on the same street as her grandmother, and he
and Myeshia went to the same church. However, she denied ever talking
to him. Myeshia admitted allowing Dixon to use her address as a mailing
address, but denied that he ever moved in with her. She denied ever
texting Dixon her address.
The phone found at the scene listed Messy 1 and Messy 2 as the
first two contacts in its address book. A text message stored in the phone
from Messy 2, dated April 21, read, "Friend, are you okay? Call me. It's
important. Please call me." Another text message in the phone, dated April
16 and from Messy 1, gave an address in the 2600 block of Chandler
Court. The address, which was the same as that determined to belong to
Dixon, was Myeshia's apartment. One of the text messages from Messy 1
was directed to Dodo. One of the texts, dated March 27, read, "F-u-c-c U."
Kern County Sheriff's Senior Deputy Pratt had seen that spelling in the
course of gang investigations. According to some people, "CK" is not used
because it stands for "Crip Killer." According to others, "CC" stands for
"Country Boy Crips."
Cell phone records showed calls between Dixon's phone that was
found in the coat pocket at the McNew Court crime scene and Mikeshiea's
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and Holford's phones. Records further showed a series of eight calls,
beginning at 7:19 p.m., made from Dixon's phone to a number determined
to belong to Lee's cell phone. A search warrant was obtained, and records
seized, for Lee's phone number.
Cell phone and cell tower records for Dixon's phone showed a
grouping of calls occurring in the vicinity of the cell phone antenna with
coverage of the McNew Court area, from 7:14 p.m. through 7:45 p.m. The
first six were made on the antenna consistent with the shooting scene in
the 1300 block of McNew Court. The seventh call, which was made
beginning at 7:45 p.m., was almost four minutes long. It began on the
antenna consistent with the 1300 block of McNew Court, but ended on the
antenna consistent with the 1200 block of McNew Court. The eighth call
did not register on an antenna, which was consistent with the phone being
powered off, either intentionally or because the battery died. This last call
was an incoming call from Lee's phone that occurred at 7:54 p.m. Records
further showed activity that was consistent with Dixon's phone being in the
area of Inyo and Monterey at 6:45 p.m. on March 21.

17

Records for Lee's phone showed that when the 7:19 p.m. call was
received from Dixon's phone, Lee's phone was north of Highway 58, which
in turn was north of McNew Court. By the time the 7:25 p.m. call was
received, Lee's phone had moved south of Highway 58, in an area
covered by the antenna that had coverage of the McNew Court vicinity.
The third call from Dixon's phone to Lee's phone occurred at 7:40 p.m.
Dixon's phone was on the antenna that encompassed the 1300 block of
McNew Court. The next incoming call was the nearly four-minute one;
Lee's phone was still on the same antenna. The outgoing call at 7:54 p.m.
was moving away from that antenna. The next call, made at 8:02 p.m.,
which was after the shootings were reported, was from the antenna that
covered Cottonwood Road and Highway 58. The phone was probably
north of the highway at the time; the call was outgoing to a number
associated with Joseph Gage, whose moniker was "Gage." Dixon's phone
had contact with that number before the shootings.

18

Events Surrounding August 11, 2007

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Sometime after 9:00 p.m. on March 25, Adrian Bonner was getting
a tattoo at a tattoo parlor in the vicinity of H and 20th Streets, in downtown
Bakersfield, when Lee and a light-skinned, green-eyed Black male came
in. Bonner knew of Lee, although he did not know him personally, because
each had once dated Saleta Roseburr. Bonner last saw Lee about a
month before Lee walked into the tattoo parlor.

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When Lee walked in, he and Bonner made eye contact, and Lee
acknowledged the people he knew there. He asked Bonner's female friend
if this was her "dude." When she said yes, Lee talked a little more and
then walked back outside.
Lee was outside a minute or two. Bonner did not know what he was
doing. Lee then walked back inside, went up to Bonner, and asked if
Bonner was a Blood. He also said something like, "[T]his Little Gunner Loc
from South Side Crip. I just want you to know where you're at." Bonner
was aware the Bloods were a criminal street gang and that their color was
red. He did not believe he was wearing any red that night.

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The tattoo artist said it was a place of business and that they did
not have to worry about any of that there. The situation caused Bonner to
start feeling nervous, and so he asked for a cell phone so he could call a
family member and let that person know his whereabouts. His girlfriend
handed him her phone, and he dialed all the relatives he thought would be
home, but got no answer.
During this time, Lee produced a cell phone and started showing
everyone the pictures on it and telling them to look at what was done to
his hand, which was bandaged, and his truck. Curious, Bonner asked to
see. He saw a picture of injuries to Lee's finger, and of a truck with bullet
holes in the windshield.
The artist was still doing Bonner's tattoo, and Lee went outside and
came back in a couple more times. At some point, one of the other males
said, "your homeboy Rifle's here." Lee walked outside, then returned a few
seconds later with Johnson, whom Bonner had never seen before. Lee sat
down, but Johnson kept walking in and out of the parlor and looking at
Bonner in an awkward kind of way. By this point, Bonner was feeling very
intimidated.
When the tattoo was finished, Bonner got up, shook the artist's
hand, and paid him. Lee was sitting on the couch a few feet from Bonner,
talking about how his pain medicine had him tired. Bonner also shook
another male's hand. He then extended his hand to the third male, but that
person just looked at him and said, "nah, Watts."[fn19] Bonner knew what
this meant and that Watts was located in the Country.
FN19: Neither of these males was Dixon, who was not in the
tattoo parlor.
Bonner turned to leave. As he was on his way out, however,
Johnson, who was standing in the doorway, struck him in the face with his
fist. The person to whom Bonner had extended his hand also started
hitting him. Both Johnson and the other man struck Bonner multiple times.
Dazed and almost unconscious, Bonner tried to cover up as he lay on the
floor of the tattoo parlor, being hit and kicked. He did not know where Lee
was.
At some point, the blows stopped. Bonner got up and ran. He could
hear voices coming from the alley, threatening to get him and kill him. He
ran until he felt he was a safe distance away, ending up a couple of blocks
away at a men's shelter. He went inside and stayed there for 45 minutes
to an hour, then one of the residents was able to contact Bonner's
girlfriend. She took him to his cousin's house, and Bonner contacted his
father. Although Bonner did not give a statement to police that night, his
father did.
Bonner was not a Blood, but he had friends and family members
who were. He associated with Bloods "all the time." The Eastside,
Westside, and Country were the Bloods' rivals. As of March, Bonner was
acquainted with Daniel Davis (Grinnage's son), who lived on Deborah
Street. Bonner would regularly visit Davis at that house, as would Bloods.
In Bonner's estimation, that house was a Blood hangout. A couple blocks
away, on Deanna Street, was a house where Country Boys tended to
congregate. Bonner had seen Lee there on a couple of occasions. Lee
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was driving a Tahoe at the time, the same one in the pictures in Lee's cell
phone. At the time, the Bloods did not really have a territory, just certain
places they would be at. One of these places was on the east side, near
Monterey Street.
Between March 25 and August 11, Bonner saw Lee a couple of
times in traffic. Both times, Lee was in a black Volkswagen Jetta or
Passat.
On August 11, Bonner was living with his sister in the southwest
part of Bakersfield. About 10:30 that morning, he borrowed a car and
drove to the Denny's on White Lane. He was alone. While he waited for
his order, which he had already called in, he talked to Saleta Roseburr,
who worked there. Bonner felt someone staring at him, and turned to see
a person he knew as "Cutty Pete." Bonner knew him from a prior incident
in which he and Bonner's cousin had had an altercation. At that time, Cutty
Pete said he was from the Country, meaning he was a Country Boy Crip.
Bonner and Cutty Pete exchanged words. Cutty Pete threatened to
hurt Bonner, who laughed at him. Bonner got his order and got back in his
vehicle, at which time Cutty Pete came to the door of the restaurant and
started "[t]hrowing up signs" through the window and saying things Bonner
could not hear. This occurred shortly after 11:00 a.m. Bonner did not see
Cutty Pete any other time that day.
Later that morning, Bonner picked up his friends, Paul and Dwayne,
who lived directly south of the Foods Co. at White Lane and South H
Street, and headed toward a barbershop in the vicinity of Real and Wilson
Roads. They were at the barbershop for approximately three hours.
Another friend was there, and he asked for a ride. Bonner took him home,
then took Paul and Dwayne back to their house.
Bonner next went to the Taco Bell by Foods Co. to eat. It was
around 4:00 or 5:00 p.m. Although he was wearing all red that day, he was
not trying to dress like a Blood; it simply happened to be what he had on.
As he was leaving the parking lot, he saw Lee two, to two and a half, car
lengths away from him in a 2001 or later small, four-door, reddishburgundy car that Bonner believed was a Suzuki Forenza. Lee, who
appeared to be alone, did a double- or triple-take, and Bonner made eye
contact with him. Bonner then pursued him in the vehicle, and ended up
directly behind him, headed east on White Lane. Bonner wanted to fight
Lee because of what had happened at the tattoo parlor.
The light at South H Street and White Lane turned red, and both
cars stopped. It looked like Lee was going to go straight, but then he ran
the red light and turned left, heading north on South H Street. Bonner did
not follow, but instead made a U-turn and headed back to Paul's house.
He wanted to let Paul know that Lee was in the area. Bonner was
concerned that if Lee had seen Bonner in the car earlier in front of Paul's
house, something could happen at the house.
Bonner remained at Paul's house for five or 10 minutes, then
headed out to return the car. His route took him north on South H Street,
then west on Planz. As he came to where Real Road dead-ends into
Planz, the light turned red for traffic on Planz. Bonner stopped. His was
the fourth car back from the intersection. He was listening to music when
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he heard a loud popping sound and felt his body jolt. Out of the corner of
his eye, he saw a burgundy vehicle passing by the passenger side of his
car. He did not know if it was the same car Lee had been driving earlier,
although it was the same color, or even if the shots came from that car. He
did not see who or how many were in the vehicle.
Bonner knew immediately it was a gunshot, but did not know if it
was more than one, as it all sounded like one drawn-out noise. He felt
something hit him, and checked himself over. His vision blurred, and when
he began to move, he started to feel a burning sensation in his abdomen.
He tried to get out of the car, but could not move his legs. He felt only
tingling in his lower body. He was able to get the car to roll, and so made a
right turn onto Real Road, and the first left turn possible, which was into
the driveway of someone's house. Someone there called 911 and an
ambulance. About 20 minutes had elapsed from when he saw Lee on
South H Street to when he was shot.
When talking to the officer at the scene, Bonner never mentioned
Lee or the other defendants. He said he did not know who shot him and
could not describe the suspects, although he thought the shooter was the
person with whom he had had the altercation at Denny's. In light of Cutty
Pete's belligerence and aggressiveness, Bonner had considered the
incident with him more significant than the incident with Lee in the parking
lot.
Christopher Calloway lived at the house on the corner of Real Road
and Planz. Around 7:22 p.m., he was outside when he heard at least two
gunshots. He saw a car waiting at the red light. A second car pulled up on
the right side and someone in the second car shot toward the other car.
Calloway believed there were three individuals in the car from which the
shots were fired. The shooter was a darker-skinned African-American
male wearing a black hat or do-rag, sitting toward the left side of the
vehicle in the back seat. The driver and front passenger also were AfricanAmerican and, Calloway believed, male. The shooter's arms, shoulders,
and head were outside the window until after the second shot. The gun
was a black handgun. The car was a burgundy color, possibly a newermodel (late-1990's or early 2000's) Ford Taurus or something of that
nature. Calloway believed it was a four-door model. The car rounded the
corner and then sped north on South Real Road. Calloway could not say
whether any defendant was in the car from which the shots were fired.
Ruben Gonzaga and some friends were outside a house on the
south side of Planz, talking, when Gonzaga heard a loud pop. He saw gun
smoke outside one of the windows of a cherry red, four-door car —
possibly a Chevrolet sedan or Ford Taurus — that sped off. He believed
he heard two shots. He could see at least two people in the car, but
believed there may have been three or four. Gonzaga was unable to tell
who in the car was shooting or the race of anyone in the vehicle.
Talia Zarate and Bryan Kunzmann were traveling westbound on
Planz and had to stop for a red light at Real Road. There was one car
stopped in front of them. They had been at a full stop for a couple of
seconds when a small, four-door, maroon or cranberry-colored car pulled
up beside the vehicle stopped in front of Zarate. A young, darkcomplected African-American rolled down the driver's side rear window.
He was wearing a black beanie cap and had a goatee. Half of his body
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came out of the vehicle, and he started shooting a black gun at the vehicle
in front of Zarate. He was using a two-handed grip. Zarate did not know if
anyone other than the shooter and the driver was in the car. She did not
know if any defendants were in the car.
Kunzmann described the car as being either dark red or burgundy.
It was a late, four-door model, and either a Ford Taurus or something with
that type of rounded body style.[fn20] The shooter, whose arms were
outside of the car window, was an African-American male in his early 20's,
wearing a black sweatshirt or long-sleeved T-shirt, and a black hat or
beanie. He had a neatly trimmed goatee. There were three people in the
car, all African-American males: the driver, the front passenger, and the
driver's side rear passenger.
FN20: In his 911 call, Kunzmann said the car was red and
looked like a Toyota Corolla.
Bonner was shot in the right side of the chest, close to the
armpit.[fn21] The bullet caused major, life-threatening abdominal injuries,
including the loss of a kidney and damage to the spinal cord. He
underwent almost immediate surgery to control internal exsanguinating
hemorrhage. As a result of the gunshot wound, Bonner was left a
permanent paraplegic. The bullet was not recovered, because it was
lodged in the spine, and the neurosurgeons felt it would be too dangerous
to attempt to remove it.
FN21: He suffered a second injury in the same area, but it
could not be identified with certainty as a bullet wound.
When Kunzmann spoke to him immediately after the
shooting, however, Bonner said he had been hit twice. In
addition, Officer Vasquez saw two bullet holes in the car,
one on the right rear passenger quarter panel, and the other
on the passenger-side front by the door handle. Two
expended nine-millimeter shell casings were found on the
east side of the intersection. They had been fired from the
same gun.
Later that month, Kunzmann was shown three photographic
lineups, one containing each defendant. He did not identify, select, or
eliminate anyone. However, records for Lee's cell phone showed that calls
made or received between 10:17 a.m. and 3:52 p.m. were routed through
the cell antenna site near Lee's residence on Myrtle Street. Calls between
4:22 p.m. and 4:34 p.m. were routed on the antenna at South Real and
Wilson Roads. Calls between 4:58 p.m. and 6:48 p.m. were routed on the
antenna that covered an apartment complex at Eye Street, although the
calls moved from the side of the antenna facing due north to the side
facing southeast during that time. Between 6:48 p.m. and 7:01 p.m., there
were several calls between Johnson's residence on Thoreson Court and
Lee's phone. At 7:18 p.m., a call was made from Lee's phone that, given
the cell phone tower on which it originated, was consistent with the phone
being to the east, or at the corner, of South Real Road and Planz. At 7:28
p.m., the antenna registered a call that was consistent with the phone
being in the Thoreson Court area. The phone then moved north.
On August 16, Kern County Sheriff's Senior Deputy Little, and
Bakersfield Police Detectives Heredia and Darbee, flew to Las Vegas,
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Nevada, to interview Sara Agustin, a woman who had been in a prior
relationship with Johnson. The detectives returned her to Bakersfield,
where she pointed out various locations to them. Agustin also provided
telephone numbers of people she knew during the time she lived with
Johnson, together with photographs and credit card statements.
Shortly after 8:00 p.m. on August 23, Bakersfield Police Officer
Finney and his partner, Officer Ursery — both assigned to SEU — were
on patrol on Dobrusky Drive in Bakersfield, an area within the traditional
boundaries of the Westside Crips. They observed a gray Nissan, motor
running, parked in front of a house from which Finney previously had
seized firearms. Columbus Holford, who lived there and whom they knew
to be a Country Boy Crip with the moniker "Pookie," was speaking to three
subjects inside the car.
As the officers approached, Finney recognized Dixon as the
Nissan's driver. Aware Dixon was on parole, Finney yelled at him a couple
of times to turn off the car and step out so he could perform a parole
search. At first there was no reaction, but then Dixon accelerated away. A
vehicle pursuit ensued.
In front of an apartment complex in the 100 block of L Street, Dixon
stopped, and the occupant in the front passenger seat jumped out of the
vehicle. Ursery pursued him on foot. The individual was a dark-skinned
African-American male, six feet or six feet one inch tall, about 175 pounds,
with short hair. Ursery was unable to catch him.
Meanwhile, Dixon again sped off. At one point, he drove through
the 200 block of Eye Street, then subsequently returned to the apartment
complex on L Street. There, the car again stopped. The driver's door
opened, then, after about 15 seconds, closed again and the pursuit
resumed. On northbound Chester, the vehicle pulled into the center turn
lane in the 200 block and slowed significantly. Dixon jumped out and ran,
eventually climbing the back wall of the parking lot for an apartment
complex in the 200 block of Eye Street. The vehicle continued on until it hit
a curb and came to a stop. Finney followed it and found Lee sitting in the
rear passenger-side seat. In a partially unzipped lunch pouch on the left
rear seat, directly behind the driver, were a loaded Tec-9 pistol and
additional rounds of ammunition.
The Nissan had been reported stolen from an apartment in the
complex in the 200 block of Eye Street, although investigation revealed it
had not actually been stolen. Officers determined that Dixon had jumped a
wall to the east of the complex. On the west side of the wall, in the
apartment complex's rear parking lot, were three live rounds of
ammunition. One of the cars parked in the lot at the back of the complex
at that time was red.
Dixon was arrested shortly after midnight on August 24. He was
taken into custody at his residence in the 2900 block of Half Moon.
On October 1, Kern County Sheriff's Senior Deputy Lopez and
other officers executed a search warrant at the residence on Myrtle Street
in which Lee lived with his father. Lee was in custody at the time. Lopez
found letters referencing gang activity that were addressed to Lee and
appeared to be from his brother in prison, photographs depicting persons
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throwing gang signs, and rap lyrics containing references to gang activity.
Also found were a gas mask, some articles of powder blue clothing,
multiple rounds of various calibers of ammunition, and a baggie containing
a usable amount of marijuana.

5

That same day, Lopez and his team executed a search warrant at
the apartment in the 2900 block of North Half Moon at which Dixon had
been residing. Dixon was in custody at the time of the search. In addition
to some bills addressed to Dixon at that address, officers found a
California identification card for Johnson.

6

Sara Agustin's Testimony

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Sara Agustin, who testified under a grant of immunity, first met
Johnson in late September 2006, when he was 20 years old and she was
36. She was driving to a market on Cottonwood Road and Casino to
purchase marijuana, when she saw Johnson and his friend, "Fat-Fat,"
walking to the market. Agustin pulled over and asked Johnson if he knew
where she could purchase marijuana. Johnson eventually directed her to
the house of a drug dealer, about three blocks away. The dealer's
nickname was "Reese," and he lived on Reese Street. With money
provided by Agustin, Johnson purchased marijuana, then he, Agustin, and
Fat-Fat went to the latter's apartment and smoked some. Agustin and
Johnson exchanged telephone numbers.

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During the next month to month and a half, Agustin and Johnson
shared the common bond of smoking marijuana, and they had fun
together. At the same time, Agustin's relationship with her husband
deteriorated, and they separated just before Thanksgiving 2006. Johnson
and Agustin then moved into an apartment in the 2500 block of Encina
Street in Bakersfield. Agustin was employed at the time, but Johnson was
not. He told Agustin he was selling crack cocaine, and showed her white
rocks. He said he "post[ed]" himself at the market where they first met,
meaning he sold the drugs there. Johnson said he got his cocaine from his
uncle and "Two C's."
When Agustin first met Johnson, she did not know whether he was
in a criminal street gang. She became suspicious, however, when he
would take her to the Country and she would see his behavior.[fn22] They
would be at an intersection, and he would see one of what he called his
homies, and he would make what sounded like bird noises and make
signs with his hand. Early in 2007, Johnson told Agustin that he was a
member of the Country Boy Crips, and that they "pushed the hood,"
meaning they protected the neighborhood from rival gangs. Although
Johnson did not grow up in the Country, he said he became a Country
Boy Crip around the age of 14 or 15. Johnson explained that he was
jumped by rival gang members then. They broke his jaw, and he began to
"have hate towards certain types of individuals." That was what got him
interested in being part of a gang. Johnson said the rivals of the Country
Boy Crips were the Bloods and the Eastside, whom he derogatorily called
"slobs" and "eggs." Johnson told Agustin that the Country Boy Crips did
drive-by shootings and sold drugs.

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FN22: The Country is considered the southeast part of
Bakersfield. The main street is Cottonwood Road.
Johnson had several monikers, but was most commonly called
"Rife" and "Rifle."[fn23] Johnson explained to Agustin that his "big
hom[ie]," "Big Rifle," had given him that name because Johnson was
someone "who was bold enough to really push the hood." Johnson said
he admired Big Rifle, who was now deceased.
FN23: Agustin's daughter heard one person call him
"Rifleman."
When Agustin first met Johnson, Johnson had several tattoos. On
the first three fingers of one hand were an "E," an "S," and a "K," which
Johnson said meant Eastside Killers. A tattoo on his chest read, "fuc[c]
them other niggas." Johnson explained it was derogatory to his rival
gangs. While they were living on Encina Street, he got a tattoo on his
lower back that said "2007" and "NC." Johnson explained that 2007 was
"the year of the Country," and that NC stood for Neighborhood Crips. He
also pointed out Watts and Lotus to her and said he claimed or "pushed"
Watts.
Agustin encouraged Johnson to quit selling drugs and learn a trade.
He began going to barber school in early 2007. She also discouraged him
from participating in the gang. Over the course of their relationship,
however, Johnson began to tell Agustin about his gang activities. With
respect to the gang, Johnson said he was the boss, so he pretty much did
what he wanted to do. In order to have that position of leadership, he said
he did anything necessary. During the middle of the relationship, while
they were living on Encina Street, Johnson told Agustin that he was a hit
man. He said that if other people in the gang needed something done,
they called him, because he was the one who could get the job done. He
was not afraid of anybody.
Agustin met Lee in around October 2006, when she had known
Johnson a couple of weeks to a month. She met him through Johnson.
Johnson referred to his friends as homies, loc, and cuz. He explained that
Crips called each other Cuz. He also explained that powder blue was the
color of the Country Boy Crips. Johnson sometimes wore that color, but he
would wear any color. Sometimes his friends wore powder blue, but not on
a regular basis.
After Agustin met Lee, she saw him often, as he was Johnson's
best friend. Johnson said they had known each other since childhood. Lee
lived on Myrtle Street with his father. Myrtle Street was in Central
Bakersfield, not in the Country. However, Lee's mother lived in the
Country. At some point, he told Agustin that he worked in Los Angeles as
a respiratory therapist. She saw him in various automobiles during the
time she lived on Encina Street, most often a powder blue Magnum that
he liked to rent. He also had his own car, a small black vehicle. In the first
part of 2007, Agustin and Johnson were at Lee's house on Myrtle Street.
Somehow, the topic came up, and Lee said he hid guns in the backyard.
He did not give a specific location.
Sometime after February, while living on Encina Street, Agustin
heard Johnson and Lee talk about being Country Boy Crips. They carried
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on conversations about their neighborhood and activities. They discussed
drive-by shootings. On August 13, Agustin heard Johnson call Lee
"Gunman." This was the only time she heard Lee called anything but
"Dave." Agustin never saw Lee flash hand signs. Johnson was more
blatant about being in a gang than Lee. Lee did not dress like a gang
member.
Agustin knew Dixon only as Dodo. Although she did not meet him
until the spring of 2007, he and Johnson were together almost daily during
the time Agustin and Johnson lived on Encina Street. They were together
even more frequently in July and August, after Agustin moved away and
then returned to Bakersfield with Johnson. Agustin also often saw Lee with
them while she lived on Encina Street, and more often during July and
August. Occasionally, Dixon talked to Johnson, in Agustin's presence,
about being a Country Boy Crip. In addition, Johnson told Agustin that
Dixon was a Country Boy Crip, as was Lee. Johnson also identified "Big
Gage," "Little Gage," "Nip," a woman named "Cece," her husband Jim
Herron (also known as "Big Boy" or "Big Jim"), Bradley Walker (also
known as "Bus Loc" or "Buzz Loc"), "Goo," "D-Keys," "Two C's," and
someone Johnson referred to as "the light hom[ie]" as Country Boy Crips.
Johnson obtained marijuana from Herron whenever he wanted. Agustin
never saw him pay Herron. Herron also provided Johnson with Ecstasy.
Agustin saw Dixon at Herron's house one time, and Lee there more than
once but not often.
In January, around Martin Luther King, Jr.'s birthday, Johnson and
Agustin attended a barbecue in Casa Loma Park, which was located in the
Country. Johnson said it was the year of the Country, and they were going
to celebrate it.[fn24] Johnson wore a black shirt that he designed. Lee had
an identical shirt. According to Johnson, he and Lee drove to Los Angeles
and had the shirts made specifically for them. Johnson's shirt read, from
top to bottom, "2007," "S," "Wingstone," "Watts Blocc," "monstas."
Johnson explained that S stood for Southerner, the side of town on which
their gang neighborhood was located. Watts was the name of a street in
Johnson's neighborhood in the Country, and the block he represented was
Watts block. Monstas meant monsters, and Johnson said he was a
monsta. The back of the shirt read, again from top to bottom, "Naybors,"
"Southsiders," "Shell Killa," "Country." Shell was one of the monikers used
for rival gangs. It meant eggs. The phrase meant Johnson was a shell
killer, i.e., someone who would kill an egg. Country was Johnson's
neighborhood. Each sleeve bore the letters "SSC," for Southsider Country.
FN24: Dixon was in prison at the time. Agustin did not
believe Lee was present, as she did not see him that day.
Two or three times in early 2007, Agustin went with Johnson to
purchase marijuana at a house a couple of blocks off Pacheco Road.
Agustin never met anyone who lived at the house, and never saw Dixon or
Lee there. However, in the first part of 2007, Agustin was present when
Lee and Johnson discussed Lee's car being hit by gunfire in the area of
Pacheco Road.[fn25] Lee said he and Johnson had gone to the location
on Pacheco Road to purchase some marijuana, and in the process, they
were shot at by some individuals. Both told Agustin they themselves were
not armed. Lee said his vehicle was shot numerous times. He and
Johnson both were angry, and Johnson said they needed to go back and
retaliate. Lee wanted to submit the damage to his insurance company, but
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he said he regretted submitting the claim because the insurance company
required a police report, and that was how the police department found out
the shooting had taken place. Lee and Johnson did not talk about the
specifics of what they were going to do or when.
FN25: The neighborhood containing Deborah Street and
Deanna Way is north of Pacheco Road and just east of
Monitor Street.
Within a day or two, Lee came to the house on Encina Street with
his arm bandaged. Agustin and Johnson were present. Lee unwrapped his
arm and talked about how he had gotten shot in the arm when they went
back to retaliate for the initial shooting on Pacheco Road.[fn26] Lee said
they parked away from where the initial shooting occurred so that their
vehicle would not be spotted by those who lived in that location. Johnson
said that after they parked, they began walking toward the location where
the initial shooting had taken place. Lee said they were walking toward
where the individuals lived, or were thought to live, when they spotted a
vehicle driving toward them. The individuals in the vehicle were the same
ones who had shot at Lee's vehicle, and they now began to shoot toward
Lee and Johnson. Johnson told Agustin that he pulled out his gun, but as
he went to fire, the gun jammed. He and Lee then began to run from the
individuals in the vehicle, who continued shooting at them. Johnson
related that he and Lee ran in different directions. Lee said he jumped
over a fence, but it broke and he injured himself. Lee was very angry and
said he wanted to get them back. Johnson said those who had shot Lee
were their rival gang on the east side.
FN26: Agustin was already aware Lee had been shot,
because Johnson had told her.
During this time, Johnson was attending barber college on the east
side of Bakersfield, on Niles Street. One day within a couple of days after
Lee was shot, Agustin picked Johnson up from school. Johnson then
drove on a dirt road beside a canal in a neighborhood in the area of
Monterey and Niles. He said he was scouting rival gang members who
were hanging out in that location, and he pointed out a residential area.
He drove through and pointed out some African-American males who
were standing outside, right off of Monterey Street. One was wearing red,
which Johnson also pointed out. Johnson said they were coming into the
barbershop, and he was scared for his safety. He said he could not take
his gun into the barbershop because the owner, who was his teacher, had
security cameras, and he was feeling really helpless without his gun. He
said that now he would have to start taking his gun to the barbershop, but
that he would leave it in the vehicle.
One morning after this time, Johnson gave Agustin a pair of white
Nike tennis shoes with red on the emblem and a red hoodie sweatshirt
Agustin had bought him, and told her to destroy the items because they
had been involved in a drive-by shooting he had committed in the canal
area. He said that a couple of days earlier, he and Lee went to the area.
Lee was driving his black vehicle. Lee parked in an alley and Johnson got
out. He put on a mask and walked to the front of a residence, where a
couple of individuals were sitting.[fn27] Johnson walked up to one and
started shooting. Johnson said he shot this person several times and
thought he had killed him. Johnson told Agustin that Lee wanted to go and
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retaliate for the shooting that took place on Pacheco Road, but Lee could
not shoot the gun himself because his arm had been injured and so
Johnson had to shoot on Lee's behalf.
FN27: When Agustin and Johnson lived on Encina Street,
Johnson possessed a black mask that looked almost like a
gas mask. Agustin's credit card receipt showed she bought
the mask for him on March 30. Johnson said he wanted it for
smoking marijuana. Johnson did not tell Agustin what he
was wearing or the kind of mask he used during the
shooting. During the time the couple lived on Encina,
Agustin's daughter observed a black ski mask in a duffel bag
Johnson kept in Agustin's closet. On one occasion, Agustin's
daughter saw Johnson leaving the house with the duffel bag.
He appeared to be in a hurry.
Agustin burned the sweatshirt in the fireplace of the Encina Street
residence, and discarded the shoes in her trash can, because Johnson
told her to get rid of the items. She did not feel she had a choice. By that
time in the relationship, he often hit her. Although she knew she was
helping Johnson cover up a crime, she felt helpless, because he had told
her he would kill her if she ever left him or told on anything he did.
Johnson subsequently told her that the person he shot had survived.
On March 25, Johnson and Agustin went to Disneyland and Santa
Monica. They came straight home, because Johnson was in a hurry to get
home and be with his friends. Agustin believed they reached Bakersfield
around nightfall, and she was almost certain he then went out with his
friends. Johnson said nothing to her around this date about beating up a
Blood gang member or someone at a tattoo parlor.
For Christmas of 2006, Agustin bought Johnson a black Volcombrand pea coat. For Johnson's birthday on April 12, Agustin bought him a
blue hat with "B" or "S" on it and a white jersey. While attending barber
college, Johnson had to wear a tan, zippered smock.[fn28]
FN28: At trial, Agustin identified the pea coat, hat, and shirt
found on McNew Court as the ones she had purchased for
Johnson. The smock found on McNew Court was the same
kind worn by Johnson at the barber college.
Johnson normally came home around 11:00 p.m. or midnight.
Agustin did not know what he was doing at those times, although he went
out a lot with Lee. About a week after his birthday, however, he came
home several hours earlier than usual. He was very startled. He told
Agustin that he had done something and that they needed to go back to
the location, but that they had to wait until 3:00 a.m., when it would be
safe and there would be no police around.
A few hours later, Johnson told Agustin that he, Lee, and Dixon had
driven to a certain location on McNew Court. Lee was driving. He parked
the car, and they watched a particular vehicle. Lee and Dixon then stayed
in the car while Johnson got out, approached the other vehicle, and
started shooting. Johnson said he could not see inside the vehicle, but he
thought there was someone inside. Johnson told Agustin that after he
shot, he ran to another location, then took off the clothes he was wearing
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and hid them underneath a vehicle. He did not specify what he was
wearing. Johnson wanted Agustin and her daughter, who was living with
Agustin at the time, to say that he was at home with them, watching
movies, if anything ever came up about that night. He said he needed to
go pick up a gun, but he wanted to wait until 3:00 a.m. because he thought
all the police would be gone from the area.
At exactly 3:00 a.m., Johnson told Agustin that it was time to go.
Agustin drove, with Johnson directing her, through the McNew Court area.
Because she did not have her glasses and could not see well, her driving
was somewhat erratic. Upset, Johnson told her that she needed to be
more careful, because they could get pulled over by the police and that
would jeopardize him.
They drove past McNew Court. As far as Agustin could see, there
were no law enforcement officers in the area. Johnson directed Agustin to
turn one block past McNew Court, and then to make a U-turn. He then had
her park as close to the curb as possible by the mailbox of a house with a
brick wall and wrought-iron fencing, and that had a van or similar large
vehicle parked in front. Johnson then reached out of Agustin's vehicle,
took a dark-colored gun out of the mailbox, and placed it on his lap.[fn29]
Johnson had guns at the house on Encina Street, and this appeared to be
one of them.[fn30]
FN29: When Agustin subsequently pointed out locations to
law enforcement officers, she identified a house in the 1000
block of Feliz Drive, near Jastro, as the place where
Johnson retrieved the gun. Senior Deputy Little determined
that the mailbox in front of that house was too far from the
curb for a person sitting in the passenger seat of a car to
reach inside. Two houses to the west, however, was a
similar-looking house with a mailbox much closer to the curb.
FN30: Agustin observed Johnson to have a small revolver
that he referred to as a .22, another revolver that jammed
frequently and which he called a .38, and a large gun, about
three feet long, that Agustin believed was a Tec-9 because
she had heard Johnson use the term. He also had a grayishblack gun that was about the same length as the .38, but it
was not a revolver and had a slide on it. He also had a black
one like police officers carry. It was an older model. The .22,
.38, and large gun began appearing at the residence in the
early part of 2007. At some point, she did not see the large
gun or the .38 anymore, but she still saw the .22. Agustin
was unable to tell which gun Johnson retrieved from the
mailbox because it was too dark. She knew from its size that
it was not the .22. It appeared to be the same size as the
.38, but did not appear to be a revolver.
Agustin and Johnson went straight home. Johnson told her how
scared he was, then went to the back yard and hid the gun. He told
Agustin that he needed to get rid of it right away. Johnson subsequently
told Agustin he had sold the gun, but did not say to whom.
A day or two after Agustin took Johnson to the McNew Court area,
Johnson received a telephone call from Dixon. Dixon was extremely upset
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at Johnson because Johnson had left the clothing he was wearing at the
shooting, and inside the coat pocket was Dixon's cell phone. The police
had found the phone and were harassing Dixon. Dixon was upset that
Johnson had gotten very careless. Johnson wanted to know what the
police were asking and what kind of information Dixon was giving them.
Johnson did not tell Agustin why he had Dixon's cell phone, but just that
Dixon was angry at him because he had taken off his clothes and put the
cell phone in the pocket. Johnson said he put the clothes underneath a
vehicle not far from the crime scene. Johnson expressed concern that
since the police had found the clothes, he and the others were going to
get caught.
On Saturday, April 21, Agustin and Johnson went to Pismo Beach
alone for a night. The trip was unplanned. Johnson said he wanted them
to get out of town to have some quality time together.
After the McNew Court shooting, Johnson's demeanor changed
and he began drinking heavily. About a week after the shooting, Agustin
asked him why. He said he had found out that he had killed a pregnant
woman. Johnson seemed remorseful.
After the shooting, Dixon stopped coming to Agustin and Johnson's
house for a few weeks. After that time, however, he started coming over to
the house again. He said the police had stopped coming to his house as
often as they had in the beginning. Dixon told Johnson that Johnson had
gotten careless. Dixon was concerned he would end up being blamed,
since the police had no evidence that Johnson was involved. Johnson and
Dixon discussed the car used in the shooting on McNew Court; both said it
was Lee's black car.
At some point in early May, Johnson told Agustin that things were
"getting pretty hot" and he was afraid he was going to get caught, so he
left the Encina Street house and moved to San Jose to live with his sister,
Lynell Johnson. Johnson asked Agustin to move with him, because he
wanted to start over. He said he was going to change his life. She did not
believe him, but, hoping he really was going to change, moved in with
Johnson and his sister in late May. After Johnson moved, but before
Agustin joined him, Johnson telephoned and asked if she could park Lee's
vehicle, a Volkswagen, in her garage. She said no, because she wanted
no involvement in what they had done. He then asked if she could at least
drive the vehicle to the light homie's house and park it there. Agustin
agreed and took the car to 19th Street, just off of Cedar. She locked the
keys inside it and left it there. A day or so later, Johnson telephoned and
said that Lee had tried to retrieve the vehicle, but the police had towed
it.[fn31]
FN31: On the morning of May 2, police received a complaint
of an illegally parked vehicle in the 2500 block of 19th Street,
between Pine and Cedar Streets. There, a 1999 four-door
Volkswagen Passat, without current registration tags, was
blocking a construction dumpster. Because the registration
tags had been expired more than six months, the vehicle
was impounded.
After Agustin and Johnson moved back to Bakersfield from San
Jose, they moved in with P.G. and Dreenie, who were close friends of
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Johnson. Dreenie had a wig that she occasionally wore. The hair was
black and short, but not curly. One evening in late June or early July,
Johnson asked if he could borrow it. Dreenie gave him the wig. After it
grew dark, Johnson said he had something to do and would be back. He
left the house with Lee in Agustin's Expedition. They were gone for 45
minutes to an hour or so.
When Johnson, Dixon, and Goo returned, Agustin did not see her
Expedition. Johnson told her that she needed to go get Lee "in the hood,"
by Reese's house. Agustin did not have a car, so she asked Dreenie to
drive her. She and Dreenie drove around by Reese's house but could not
find Lee, so they returned to Dreenie's house. When they arrived,
Agustin's Expedition was there, and Johnson, Dixon, Lee, and Goo were
on the floor of the front room. There was a bunch of money all over the
floor, along with three large sandwich bags of marijuana. The men were
kneeling on the floor, counting the money and sorting it out among
themselves. Agustin overheard them say that they had robbed Reese.
Two of them went inside to make it look like they were going to buy
marijuana like usual, then Johnson and the fourth one went in, disguised
and with guns. When they came in, they pointed the guns toward the
others and demanded the money. Johnson said that one of the people got
so scared, he "pretty much went to the bathroom on himself." Johnson
said that to make it look good, he had to sock Lee in the face. Johnson,
Goo, Dixon, and Lee were all discussing the robbery and laughing about
how easy it had been.
Since they now had money, Johnson told Agustin to get her things,
as they were going to get a room somewhere else. They then moved out
of P.G. and Dreenie's house to a motel in Oildale. Johnson made Agustin
use the $400 he had given her from the robbery proceeds to pay for their
room and food. When the money ran out after less than a week, Agustin
contacted her best friend, Alethia Larios, who lived on Thoreson Court,
just down the street from Big Jim Herron. Larios allowed Agustin and
Johnson to move in with her. This was during July.
In early 2007, before Lee was shot, Johnson began getting
physically violent with Agustin, often because she refused to give him the
keys to her Expedition. There were multiple incidents; they included him
striking her with his fist and "busting" her nose, holding her head
underwater in the bathtub, attempting to shoot her but having his gun jam,
biting her hard enough to leave scars, dragging her by a belt around her
neck, and threatening her with bodily harm and death.[fn32]
FN32: Lee was not present on any of these occasions. Lee
never threatened Agustin, and she was not afraid of him.
Although she saw Johnson and Dixon with a gun, she never
saw Lee with one.
Agustin and Johnson lived with Larios for slightly more than a
month. During that time, their relationship was worse than it had been
when they were living on Encina Street. They fought all the time, and on
August 7, Agustin contacted a battered women's shelter. She was tired of
the abuse and feared for her life, as Johnson had gone so far as to get his
semiautomatic out of the closet and stick it in her mouth.[fn33] Agustin
went to the shelter on August 7, and was in telephone contact with them
for several days after, but they had no beds available.
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FN33: As far as Agustin saw, the black semiautomatic was
the only gun Johnson had at this time. He kept it in a
pillowcase in the closet, along with the mask that looked like
a gas mask, a wig, and black clothing.
Early on August 9, Johnson received a telephone call. He
subsequently told Agustin that he needed to take the car, and that
something had happened. He did not go into any details, but was in a
hurry. He left in Agustin's Expedition. Concerned, Agustin telephoned Lee
and then Dixon. Each told her not to worry, and that he would get a hold of
Johnson.
Several hours later, Johnson returned to the house in the
Expedition. He told Agustin that Cuckoo's wife's cousin had gotten shot.
Johnson related that the person had been shot in the face and several
times in the chest on Cheatham Street, which was in the Country next to
Reese Street. Johnson said that one of his "hom[ie]s" had seen the
shooting take place, and that the shooter had been a Mexican male.
Johnson related that he (Johnson) had contacted the shooter on his cell
phone and asked him to meet somewhere so they could talk. When the
individual refused, Johnson told him that Johnson was going to "get him
where it hurt him the most." Johnson said that he and Dixon had found out
where the individual's father lived, which was out in the bluffs, and they
had gone in Agustin's car to that location.[fn34] When they were walking
toward the house, a vehicle approached. The individuals in that car saw
them and made eye contact, and Johnson and Dixon got scared and
acted as if they were tying their shoes. When Agustin said she could not
believe Johnson would do such a thing in her car, Johnson said he did not
want to "do" her like that and have a shootout in her car, so he and Dixon
left the area.
FN34: Johnson did not say Lee was with them. Agustin
assumed that by "the bluffs," Johnson meant the area in
northeast Bakersfield, by Bakersfield College and Panorama
Drive.
On August 11, Johnson and Agustin were still living on Thoreson
Court, and Agustin was still trying unsuccessfully to get into the battered
women's shelter. That afternoon, the couple got into a physical altercation
over Johnson taking Agustin's vehicle. Johnson eventually said Agustin
could go with him, but, once she got into the driver's seat and he got in on
the passenger side, he retrieved the black semiautomatic from between
the passenger seat and the center console, and he pointed it at her. She
got out of the vehicle and ran back into the house. He followed her in and
told her to come on, and she went with him. He had the gun stuffed in his
pants at the time.

27

The two ran an errand, then, near the intersection of Ming Avenue
and Real Road, Johnson got into an argument with a lady driving a green
Tahoe over who had cut off whom. Johnson got mad, pulled out the
semiautomatic, and pointed it toward the lady. She immediately got on her
cell phone, and Agustin feared that if she got the license plate number for
Agustin's Expedition, it would lead the police to Agustin.

28

The lady and Johnson and Agustin went in different directions at

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the intersection. Johnson and Agustin ran several more errands, which
included Johnson buying some Ecstasy pills and forcing Agustin to ingest
one. They returned to Larios's house around 4:30 p.m., but Agustin was
feeling the effects of the drug and drove alone to a market to purchase
some beer. When she returned, she felt like someone was following her.
She told Johnson and warned him to hide his gun. Agustin then returned
to the market, contacted her ex-husband, and ended up spending the
night at his house. She did not have any contact with Johnson the night of
August 11.
On Sunday, August 12, Agustin checked her messages and
learned Johnson had been looking for her and wondering why she never
came home. She lied and told him that she had gone to a battered
women's shelter. Johnson asked to see her, and she told him she could
only get away from the shelter for a certain period of time.
At 8:00 p.m., Agustin arrived at Lee's house on Myrtle Street, and
Johnson greeted her at her car. As they talked, Agustin heard a couple of
noises. Johnson saw a vehicle approaching, and he grabbed Agustin's
hand and said something had happened the night before. They then ran to
the back of Lee's house. Lee and Dixon, who were by a tree in the front
yard, also ran to the back. The vehicle that drove by was large, possibly a
van or an SUV, and Johnson said he suspected the occupants were rival
gang members.
After a few minutes, Agustin told Johnson she needed to get back
to the shelter. She then left and returned to her ex-husband's house. She
did not have further contact with Johnson that night, although while at
Lee's house, she had made arrangements to pick Johnson up from
Dixon's house on Monday morning to take him to an appointment with his
public defender. Instead, at 8:00 a.m. on Monday, August 13, Agustin
went to the shelter in person. She was in fear and desperate to get away.
Again unable to get a bed and with nowhere else to go because her exhusband did not want her coming back, she went to meet Johnson at his
attorney's office.
After they left the office, Johnson said he wanted Agustin to see
something. They went to the intersection at Planz and Real Road, where
Johnson told Agustin to look up at the signal light and asked what she
saw. When she said she saw a camera, he asked her what she thought it
did. She said she did not know. She told him that the big square cameras
in certain intersections took pictures if someone ran a red light, but that
she did not know what this little camera did. She said it possibly recorded
things, but she was not sure. He then got scared.
Johnson told Agustin that he had done a drive-by shooting at that
intersection on Saturday night. He said Lee was driving, Dixon was in the
front passenger seat, and Johnson was in the back seat.[fn35] Johnson
said he saw someone walking on the sidewalk, and so he stuck his head
out and fired twice, and he was concerned that if the camera was
recording, the incident would have been caught on camera. Johnson said
he and Agustin needed to get out of town, and that his plan was for them
to go to Las Vegas. He said he had a friend and extended family there.

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FN35: Agustin never saw Lee driving a vehicle that was red,
burgundy, cranberry, or maroon.
Johnson said he had some guns that he needed to sell so they
could get some money. They then drove to a house in the 400 block of
Eye Street. Agustin remained in the car; when Johnson came back a few
minutes later, he said the individuals at the house had made him an
acceptable offer of $400 and he needed to get the guns.
Johnson and Agustin then drove south on Eye Street to a set of
apartments. Dixon, Lee, and Lee's young son were outside, and there
were several women in the front yard. Johnson told Dixon and Lee to get
in the car, because he had something to show them. Lee's son stayed
behind; when Agustin asked, Lee said some friends lived there, and that
his son was in good hands. Johnson then drove back to the intersection,
pointed toward the pole, asked them if they had seen the camera and
what they thought that camera did. They said they did not know. Johnson
said that if the camera was actually recording, it would be bad because it
would show that Lee was driving, the vehicle and the license plate, and
that Dixon was in the front seat. Dixon responded that if it was going to
show that, it was also going to show when Johnson put his head out of the
window and started firing. Johnson then told them that he wanted to get
out of town, and Dixon and Lee tried to discourage him from leaving.
Johnson said he had found someone to purchase the guns, and so
they drove back to the house on Eye Street. There, the three men went
inside. When they came back out a few minutes later, Johnson was
excited because the people had actually raised the offer to $500. Johnson
told Agustin that she needed to drive the three of them to the Country so
that they could dig up the big gun. Johnson actually drove, and they went
to the home of Lee's mother. There, Dixon retrieved a shovel, and they
directed Agustin to drop them off at Watts and Lotus. She was then
instructed to go to Larios's house and get packed and ready to move.
Johnson told her to wait for a phone call to come back and pick them up.
Agustin left all three of them standing in the middle of the intersection with
one shovel.
About 15 minutes later, Agustin received a call from Johnson,
telling her to come and get them. Only Johnson and Dixon were there.
They went to a market on Casino Street, off Cottonwood Road, and Lee
drove up in what looked like a white Explorer. Lee said it was his mother's
car. They then all went to his mother's house. Johnson made some phone
calls, trying unsuccessfully to sell the guns. Dixon called D-Keys to see if
he was interested. Although D-Keys was out of town, Dixon told Johnson
that D-Keys had asked Dixon to pay Johnson, and that D-Keys would
reimburse Dixon when he returned. Dixon then handed Johnson $150 for
the black semiautomatic. The last time Agustin saw that gun, Dixon had it.
Johnson, Dixon, and Lee discussed how they had been unable to unbury
the big gun, and Johnson instructed Lee to make sure he got rid of it.
Johnson and Agustin then went to the home of one of Johnson's
friends to get directions to Las Vegas. By now, it was dark. They headed
for Las Vegas that night, sleeping in a rest area outside of that city and
arriving the next morning. They then went directly to a homeless shelter
and then to the welfare department to apply for emergency food stamps.
While there, Agustin was just staring off, but a woman in line apparently
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thought Agustin was staring at her, and said something. Johnson said
something to the woman, then got angry at Agustin for making him "look
bad" when Agustin refused to respond rudely to the woman. Johnson then
decided he did not want to stay in Las Vegas, and demanded that Agustin
take him home. She refused, and he eventually calmed down.
Johnson and Agustin did not return to the homeless shelter in time
to get beds, but Johnson said he had enough money for them to be able
to get a room. They spent the night of August 14 in a hotel. That evening,
they walked to a couple of casinos. After they had both had some drinks,
Johnson brought up the incident at the welfare office and chastised
Agustin for her response. Eventually, he got up and started walking out of
the hotel. He cursed at Agustin, threatened her, threatened to have his
mother beat her up, and threatened to mess up her vehicle. Perhaps
feeling the effect of the alcohol, Agustin got "a little bold" and told him that
the last time he hit her was going to be the last time he hit her. She told
him that if he hit her again, she would go to the police and tell them
everything she knew about him. Johnson became extremely angry, and
Agustin ran inside a McDonald's when he came toward her. She asked the
assistant manager to call the police.
Agustin went to her car, but Johnson reached it just before she did.
He threw a rock through one of the Expedition's windows. Agustin saw
someone walking and asked to borrow his cell phone to call the police.
Johnson started walking away, and Agustin called the police. She then
waited with her vehicle, but, when no one came after what seemed like a
long time, she drove it back to the hotel. By the time she reached her
room and fell asleep inside, it possibly was after midnight of Wednesday,
August 15.
Agustin was awakened by a knock at the door. Looking through the
peephole, she saw someone who appeared to be the light homie. She
stepped away from the door, frightened, then looked through the peephole
again. This time, she saw Johnson. He asked her to let him in. She
refused. She saw him walking toward the office, then he entered the motel
room with the light homie. Johnson ran toward Agustin and struck her in
the forehead with his fist right above the left eye. She started gushing
blood, and he started to punch and kick her. He told his friend to get
everything out of the room. Agustin begged the friend to get Johnson to
stop.
Johnson got Agustin down onto the ground, then grabbed a pillow
and began smothering her with it. At last, he let up. He told her that if he
had his gun on him, he would kill her because she called the police. He
then told her to get inside the bathtub. She obeyed. The last thing he said
to her was that he was going to go back and kill her son. She believed he
would do it.
When Agustin heard the door close, she called 911 and begged the
Las Vegas police to call the Bakersfield Police Department and alert them
to the threat Johnson had just made against her son's life. At first, the Las
Vegas police did not take her seriously and accused her of being drunk.
As she told the officer about the incidents in which Johnson had been
involved, however, the officer's attitude toward her changed. A short time
later, she was able to talk to Bakersfield Police Detective Burdick and tell
him what had happened and what Johnson had told her.
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Upon her return from Las Vegas to Bakersfield, Agustin lived in
battered women's shelters. At some point, she agreed to testify if this case
went to court. In September, she was placed in the Witness Relocation
Program and remained there as of January 2009, when she testified at
trial. Through the program, her rent was paid, and she was given $450 a
month for her other expenses, by an investigator for the district attorney's
office. In addition, in late August, the district attorney's office or law
enforcement gave her money so she could return to Las Vegas and get
her vehicle out of impound, as well as food and travel expenses. They
also bought her a cell phone.
Prior to the Las Vegas incident, Agustin did not report any of the
domestic violence to law enforcement, nor did she report any of the crimes
Johnson had told her about committing. She continued to live with and
support Johnson despite the various incidents, even after learning a
pregnant woman had been killed. She left Bakersfield for Las Vegas
because Johnson asked her to, and she wanted to be with him. She
estimated that, between January and August, she spent thousands of
dollars on Johnson.[fn36]
FN36: Psychologist Michael Musacco testified concerning
Battered Women's Syndrome (BWS), its cycle of violence,
and its effects. He also discussed common symptoms of
victims suffering from BWS, and why a battered woman
would stay in an abusive relationship and not report the
abuse to law enforcement. As defendants raise no issues
concerning this testimony and the jury was instructed the
testimony was not evidence Johnson committed any acts of
violence, we do not summarize it further.

16

Dupree Jackson's Testimony

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At the time of trial, Dupree Jackson, who testified under a grant of
immunity, was imprisoned on a parole violation. For most of his life, he
lived in the south part of Bakersfield known as the Country. When he was
little, he often saw sales of rock cocaine going on in front of his home. He
also saw guns and drive-by shootings. When he was around 13 years old,
he began thinking about becoming a member of the Country Boy Crips. All
his family was "from there," and he did not see anything else to do. He
hoped to make money selling drugs. Someone was not allowed to do that
"in the hood" unless the person was in the gang.

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Jackson was "jumped in" to the gang, meaning two people
physically beat him, when he was not quite 14. The point of being "jumped
in" is to show the person is not scared of anything, and to give that person
more reputation. Reputation for being tough is important "in the
hood."[fn37] Once in the gang, Jackson got to know other members. He
had daily contact with them, and they would discuss their various
activities. At the time, the Country Boy Crips were engaged in selling
drugs, gangbanging, and "riding on the enemies," meaning they would
shoot at rival gang members. Older people in the gang were called big
homies, which was the same thing as an OG, meaning someone who had
been there for a long time and had "a lot of say-so over the hood."
Younger gang members had a personal big homie, who looked out for the
younger member and taught him things.
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FN37: Jackson explained that if a person grew up in the
Country or spent a lot of time there, he was then Country
automatically and did not really need to get jumped in.
Jackson was familiar with Wingstone. It was off of Watts, in
the Country.
(Jackson made a brief reference to the Country Girl Crips.
Because we have no information concerning whether the
practices of female gang members are the same as the
practices of male gang members, we use only masculine
pronouns to refer to gang members in general.)
During the time Jackson was a Country Boy Crip, the gang's
enemies were the Eastside Crips and Westside Piru Bloods. Eastside was
considered worse than the Bloods.[fn38] The Country Boy Crips were
different than the Eastside, in that the Country Boy Crips did not jump in
outsiders. They were more like a family, with generation after generation
growing up in the gang. By contrast, the Eastside jumped anybody in.
FN38: Prior to Jackson's involvement in the gang, the
Westside Crips and Country Boy Crips were enemies. By the
time he had joined the gang, however, the "beef" between
the two had died down and there was some sort of truce.
There were roles within the Country Boy Crips that certain gang
members would have. Some — like Jackson — would sell drugs,
particularly rock cocaine and marijuana, the proceeds from which would
go toward buying guns, providing money for gang members in custody,
and the like.[fn39] Some were "pretty boys," who would affiliate with the
gang and bring in females, but who otherwise did not do much for the
gang or get involved in anything serious. Some would patrol the
boundaries of "the hood," keeping out outsiders and enemies.[fn40] Some
would "hang out." Others would "ride with the guns, go put it down," killing
the gang's enemies by walk-up and drive-by shootings. The OG's basically
would "call shots." Those who "r[o]de on the enemies" had the highest
status in the gang. They were respected and feared. Firearms played an
important role in the gang. They were used to protect the hood, to protect
the gang member himself, and to go "riding on" the enemies. Gang
members might trade or sell guns to other members, or might keep a gun
on one's person sometimes and hide it other times. Jackson had never
heard of hiding a gun underground.
FN39: Jackson's role in the gang was a drug dealer. He sold
rock cocaine.
FN40: Seeing a rival gang member in one's hood would be a
sign of disrespect to the Country, unless the rival had a
relative in the Country. In that case, the rival would be given
a pass, and it would not be disrespectful for him to be there.
A rival might also be given a pass if he was incarcerated with
one of the gang members and became friends with him. Crip
factions are not kept separate in prison, and Crips in prison
from Kern County have a kind of bond and call themselves
"805," for the old Bakersfield area code.

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At a Country Boy meeting, one of the OG homies instructed that
walk-up shootings were preferable, because in drive-bys the enemy was
often missed and innocent bystanders were hit instead. Jackson explained
that a walk-up shooting involved taking a car to the enemy's territory,
getting out, and shooting at the enemy. A drive-by shooting involved
shooting out of a car toward the enemy. If a participant in a walk-up
shooting did not have a gun, he would not get out of the car. The driver
would remain with the car; his role would be to get the shooter to and from
the location in rival gang territory at which the shooting took place. The
driver would use a cell phone to communicate with the shooter about
when the shooter would return, that the driver was to have the car started,
and similar subjects.
During the time Jackson was a teenager, he estimated the Country
Boy Crips had about 100 to 200 members. He personally knew the
majority of them, or was aware of their reputation in the gang. The gang
had subsets, called cliques. Jackson was in the Cottonwood clique, also
called the Deep because it was in the area of the Country that was
farthest to the south, away from the Eastside. Other Country Boy Crip
cliques were Reese and Cheatham, Mad Blocc, and Watts and Lotus.
There were no territorial boundaries among the cliques, which all got
along together.
The territorial boundaries of the Country Boy Crips were Belle
Terrace on the north, Panama on the south, Union on the west, and
Cottonwood Road on the east. There was a rival gang to the north of Belle
Terrace, namely the Stroller Boys, who were part of the Eastside Crips.
On the other side of the western border were the Westside Crips. There
was nothing beyond Cottonwood Road, as it was mostly fields. The
Bloods did not have a big territory. Their territory consisted of a large
apartment complex near Bakersfield Memorial Hospital, in the area of 31st
Street, Jewett Avenue, Columbus, and Union. Bloods would also
congregate in the area of Pacheco Road and Calcutta. The boundaries
remained pretty much the same the entire time Jackson was in the gang.

23

During the time Jackson was a Country Boy Crip, he observed that
some Country Boy Crip members had tattoos, while others did not. Some
people had tattoos that were not gang related, while others had gang
tattoos. Typical ones were "CBC," which stood for Country Boy Crip; "SS,"
which stood for South Side; and Watts and Lotus. There were also tattoos
about rival gangs. For instance, "ESK" stood for Eggshell killer, with
eggshell being a derogatory term for the Eastside Crips.[fn41] Some
tattoos would be pictures rather than letters or words. For instance,
someone might have a portrait of a dead homie, which would show that
person respect; or a picture of an egg, which would be disrespecting the
Eastside. Someone might have a tattoo of hands throwing gang signs.

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FN41: Bloods were derogatorily called "dead rags" or "slobs."

25

Powder blue was the color associated with the Country Boy
Crips.[fn42] Although someone did not have to wear that color to be in the
gang, doing so let people know where the individual was from. Wearing
the color meant both that the person was from the Country and that he
was a gang member. Although gang members did not wear powder blue
every day, every gang member wore the color at some time or another.
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people know where their hood was at. Jackson had seen words in which
CK was replaced with CC. This was because CK stood for Crip killer,
which would be disrespecting one's own hood.
FN42: The colors of the Eastside Crips were royal blue and
dark blue. The Eastside Crips were enemies of the Country
Boy Crips because they killed some Country Boy Crips "back
in the days."
In 2005, when he was 17 years old, Jackson pled guilty to
possession of cocaine for sale and served 22 months in prison. He was
initially released on parole in October or November of 2006, returned to
Bakersfield, and again lived in the Country. Following a parole violation for
assault with a deadly weapon against his sister, he was imprisoned from
January 7 to June 7, then out of custody and living in the Country until his
arrest on August 23 for absconding from parole. He was released again in
December 2007 or January 2008, and was in the Witness Relocation
Program from then until June 2008, in connection with this case. In June
2008, he again violated parole, this time by being around gang members,
and was returned to custody. He expected to be released later in the
month that he testified at trial (February 2009).
Jackson and Johnson were cousins, although they first met in junior
high school. After that, they got to know each other fairly well. Johnson did
not grow up in the Country Boy Crip neighborhood, but would visit about
every other day and claimed Country Boy Crip. Jackson and Johnson both
were active gang members. Jackson saw Johnson sell rock cocaine,
"ride," pack a gun, steal cars, and similar activity. Jackson was aware of
Johnson's reputation; from that reputation, Jackson knew that Johnson's
role in the gang was as a shooter. Johnson's moniker was Little Rifleman;
he took the name from a big homie.
When Jackson was released from prison in the fall of 2006, he
made contact with Johnson, who was living with his girlfriend, a Hispanic
woman in her late 30's. When Jackson was released again in June, he
became active in the gang again, hanging out, selling drugs, and smoking
marijuana. During June, July, and August, he saw Johnson "[a]ll the time"
"[i]n the hood." Johnson was hanging out, selling a bit of drugs, smoking
marijuana, drinking, and "banging" — being wild, packing a gun, and
having an I-don't-care attitude. Johnson was still claiming Watts and Lotus
clique, and was active during that time, riding for the Country. Jackson
knew these things because he saw them, and heard them from Johnson
and other people in the hood.
Jackson first met Dixon when Jackson was nine or 10. When
Jackson was young, he was aware that Dixon went to prison for
manslaughter for killing an Eastside Crip named "Freeway Joe." Jackson
knew Dixon fairly well before Dixon went to prison and knew, from Dixon's
tattoos, associates, and the colors he wore, that he was a Country Boy
Crip in the Watts and Lotus clique. His moniker was Dodo.
When Jackson was released from prison in June 2007, Dixon was
also out of custody. The two got together almost every day in the hood.
Dixon was in the gang at that time. Jackson saw him selling drugs,
hanging with the homies, smoking marijuana, and riding for the hood. He
was kind of a leader in the gang. He had status based on going to prison
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for what he did, and he also had family status, because his mother's family
had a lot of reputation in the hood. Dixon grew up in the Country Boy Crip
neighborhood.
Jackson also knew Lee, having met him long ago at Lee's mother's
house. Lee did not grow up in the neighborhood, but had relatives who
lived there. Jackson knew Lee to be a member of the Country Boy Crips,
because Lee was from Watts and Lotus. Lee's role was "kind of low key,"
basically hanging out with other people. Lee was "on the down low,"
almost like undercover. For instance, he did not dress like a gang
member. Lee got his reputation from his older brothers, "Big Critter" and
"Little Critter." Before Jackson went to prison the first time, however, he
saw Lee selling drugs, hanging out on the corners, and riding.
When Jackson was out of custody during the summer of 2007, he
would see Lee at various locations in the hood, including at functions at
homies' houses, and at Lee's mother's house.[fn43] Lee claimed Country
Boy Crip at that time. His role in the gang was being a driver. He would
drive people around or rent cars for them, as he had money. Lee hung out
with Johnson and Dixon, his brothers, and some of the other homies from
the hood. During that summer, Jackson saw Lee in the neighborhood
about every other day. Jackson did not know Lee to have a moniker, but
he would see Lee sometimes wear the hood's colors. Jackson and Lee
were not best of friends; Jackson learned, when he was released from
prison, that the mother of his child had had a sexual relationship with Lee
while Jackson was in custody. Jackson never discussed it with Lee, and it
was his impression the relationship had ended.
FN43: Lee's mother lived on Wingstone.
Jackson knew the roles of a number of people who were Country
Boy Crips during the summer of 2007. For instance, Tonriko Shropshire's
role was drug dealer and gangbanger, meaning an active member in a
gang. The role of Big Gage (true name, Joseph Gage) was hustling
(selling drugs) and banging, and he was an OG. The role of D-Keys (true
name, Darius Keys) was selling drugs, hanging out, and being an active
gang member. The role of Bus Loc (true name, Bradley Walker) was
gangbanger and drug dealer. Walker and Dixon were fairly close friends.
Jackson did not know anyone whose moniker was Big Boy. He did,
however, know Big Jim, who had been a volunteer football coach when
Jackson was growing up. Big Jim was an OG who sold marijuana, hung
around, and "produce[d] a lot of stuff for the Country," meaning he
distributed money to buy guns and "call[ed] some shots." Jackson also
knew Two C's (true name, Marcus Bolden or Bowen), whose role was a
drug dealer; he would push "major weight" by selling ounces of rock
cocaine. Jackson also knew Nip (true name, Trent Abraham); his role was
a drug dealer, active gang member, gangbanging, and riding.
Jackson knew someone referred to as the light homie. The person's
name was Chris Haynes; he was very light skinned, with hazel eyes, and
was a member of the gang. He drove a Lexus with Nevada license plates.
His role was being a pretty boy, gangbanging, and hustling. Fat-Fat's last
name was Killebrew. He was from the Country, although he had family
who were Eastside. Before Jackson went to prison, Fat-Fat's role was
being a hustler and active gang member. Jackson did not remember if he
saw him out on the streets in the summer of 2007. Jackson also knew
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Goo, although he could not remember his real name. Goo was a member
of the Country Boy Crips; he was like a little homie, but always listened to
what older homies said and "was down for whatever." Pookie (true name,
Columbus Holford) drove people around and sold Ecstasy and marijuana.
Maniac (true name, Sterling Endsley) had the role of being an older
homie, gangbanger, selling drugs, and riding. During the summer of 2007,
Jackson saw defendants associate with each other, Bus Loc, Goo,
Maniac, Two C's, Big Jim, and a couple of others.
During the summer of 2007, a number of people sold marijuana
from a house in the vicinity of Cheatham Street and Cottonwood Road.
The house belonged to John B. It was called the dodie house, because
Jackson and the others were selling chronic (high-grade marijuana).[fn44]
Jackson heard of a robbery that took place at the dodie house in the
summer of 2007, and learned that Johnson and Dixon were suspected.
John B told Jackson that he believed his cousin, Big Jim, sent them over
to rob him because he was making more money selling marijuana in the
hood than Big Jim. John B also believed they robbed him because his
cousin "Third," an Eastsider, was allowed to sell marijuana there. It
angered Jackson to learn the perpetrators were members of the same
gang as the victims, and he started to question the loyalty of the Country
Boy Crips toward each other.
FN44: Jackson knew a female named Teresa who went by
"Reese," but no male who went by that moniker.
Johnson also told Jackson about this robbery, and admitted
defendants were the perpetrators. He said that Barry, Third (whose real
name was Keathon), and Keshawn were the only people in the house. Lee
acted as a decoy to go into the house, then Dixon entered and then
Johnson. They pointed weapons toward everyone's heads and told them
to get down. Johnson said they took an ounce of chronic, about $3,200 in
cash, and things like video games, computers, and laptops.
That same summer, "Raybo," one of Jackson's older homies and
someone with whom he was very close, was murdered. Jackson learned
about it on August 9, when Two C's called him to say that Raybo had been
found dead at the chronic spot.[fn45] Jackson learned that Keshawn
Johnson, "Fumes" (David Taylor), and John B were suspected of
involvement. Raybo, Keshawn, and John B were all Country Boy Crips.
Fumes was not, but had grown up around a couple of the older homies
and was the father of Jackson's sister's baby. There had been bad blood
between Fumes and Raybo; Fumes had told Jackson that Raybo had
broken into Fumes's house and robbed him of some guns. Fumes had told
Jackson that he knew who did it and was going to get the person back.
After Raybo was killed, Keshawn told Jackson that Keshawn set Raybo up
and then Fumes gunned Raybo down in the house.
FN45: The certified death certificate showed that Larry
Raymond Bowen was killed on August 9 at an address in the
1300 block of Cheatham Street, Bakersfield, and that the
cause of death was gunshot wounds of the head.
The fact one Country Boy had set up another Country Boy made
Jackson feel depressed and angry. As a result, Jackson "hooked up" with
defendants later the same day, and told them that he knew where
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Fumes's father lived. He also gave Johnson Fumes's cell phone number.
Jackson did not know what street the father's house was on, but offered to
take defendants there.
Everyone got in the Expedition. Johnson was driving, Dixon was
the front passenger, and Jackson and Lee were in the back seat, with
Jackson behind the driver. Jackson saw a Tec-9, a nine-millimeter
semiautomatic, what appeared to be a Glock semiautomatic that was a
bigger handgun than a nine-millimeter, a .32-caliber revolver, and a 12gauge shotgun with the stock sawed off and duct tape wrapped around it,
all in the cargo area of the vehicle. Lee started handing them out. He gave
Jackson the .32-caliber revolver, Johnson the Tec-9, Dixon the Glock, and
kept the nine-millimeter for himself. The shotgun remained in the cargo
area in the back.
Jackson and defendants discussed their plan, which was for
Jackson to show the others Fumes's father's house, where Jackson
believed Fumes was hiding out. They were "[g]oing to go get revenge
back for the hom[ie]," i.e., kill Fumes at his father's house.[fn46] To this
end, they got on a freeway. Jackson was able to find the house after
getting lost a couple of times. Fumes's father lived by Bakersfield College,
off of Panorama Drive.[fn47]
FN46: Jackson did not believe he was going up there to kill
Fumes's father; his intention was simply to point out the location.
He took the gun when they offered it to him because he did not
want to look scared or like "a punk."
FN47: Records for Lee's cell phone showed a call made at 8:58
p.m. on August 9, that registered on the cell phone antenna near
Bakersfield College. Phone records also showed three calls on
August 9, and two on August 10, from Lee's phone to what may
have been Fumes's cell phone. Those were the only calls to that
number between February and September. (Tam Hodgson, the
district attorney's investigator who obtained and analyzed the
various phone records, had information from some sources that
Fumes had one cell phone number, and from other sources that he
had a slightly different number. Hodgson could not say which
number was correct.)
After Jackson located the house, the group circled around for a
while to plan their escape route. They then parked across the street and
"scop[ed] out" the house. Nothing got done that day, however. Defendants
said they were going to come back and get Jackson later on that night, but
they never did. Jackson did not know whether anybody went back to the
house. He himself abandoned the plan to shoot Fumes.
Johnson drove them back down from the bluffs to the apartment
complex on Eye Street, then defendants took the guns and headed toward
the apartments. They did not say why they were taking guns into those
apartments or what was going on; Jackson just knew it was "a spot,"
meaning a hangout. Defendants had always told him they were going to
Eye Street, that they had a spot over on the Westside. Jackson remained
in the Expedition. During the five to eight minutes before defendants
returned to the vehicle, he saw a newer-model, red, four-door compact
car, possibly a Toyota or a Kia, without tinted windows. On August 23, the
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day Jackson was arrested for violating parole, he saw the car again, this
time in the area of Casino Street and Cottonwood Road. Dixon and Bus
Loc were in it.
During the time Jackson was out of custody in the summer of 2007,
Johnson talked to him about his involvement in some shootings and
robberies. Near the end of June or early July, the two were sitting in the
Expedition on Cheatham Street, smoking marijuana, when Johnson talked
about a shooting that had happened in the Stroller Boys area, off McNew
Court. He also talked about a shooting off South Real Road and Planz.
Johnson said he was stressing, and that if stuff hit the fan, it would link
him back to the crimes.[fn48]
FN48: The record is somewhat confusing as to when
Jackson claimed to have first been told about the Real Road
and Planz shooting by Johnson. Jackson was specifically
asked how long it was after he got out of custody on June 9
until he had the conversation with Johnson in the Expedition
about the Stroller Boys (McNew Court) shooting. Jackson
responded that the conversation occurred at the end of June
or beginning of July. Jackson also testified, however, that
Johnson told him about two shootings during this
conversation. One was in the Stroller Boys area off of
McNew Court, and the other was off of South Real Road and
Planz. On cross-examination, Jackson testified that Johnson
told him about the Real Road shooting while they were in the
Expedition on Cheatham Street, and that this was more than
three weeks before Raybo was killed. Jackson testified that
he learned about Raybo's murder on August 9. The
implication is that he learned about this shortly after it
happened, since when he was on Cheatham Street talking to
Keshawn Johnson about what had happened, the police
were still at the scene. Yet the shooting at Real Road and
Planz, in which Adrian Bonner was wounded, took place on
August 11, after Raybo was killed, not before, as necessarily
would have had to be the case in order for Johnson to
discuss it with Jackson in late June or early July.
Jackson had a second conversation with Johnson on the subject at
a gathering on Anderson Street about a week after Raybo's funeral.
Johnson again said he was stressed out, and that if the stuff came back
on him, it would link him to the McNew Court shooting, where a female
was supposed to have gotten shot. Johnson said he was going over there
to get at some Eastsider — Anthony Lyons — but then stuff went "all bad."
Johnson related that he and Dixon were the shooters, while Lee was the
driver and waited for them to come back.[fn49] Things went haywire. The
police came or something, and Johnson accidentally dropped a hoodie
and a cell phone and some stuff. Johnson was upset when he told this to
Jackson. Johnson also said that while he was attending a funeral for his
and Jackson's deceased homie, a police officer named Mario was
following him around. Johnson was nervous about that.[fn50]
FN49: On cross-examination, Jackson testified that Johnson
did not say anything about Lee being involved in this
incident, but only that Johnson and Dixon did the shooting.
Jackson told the police that Johnson did not tell him anything
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about a car or how they got away.
FN50: Raybo's funeral was held at the Church of Higher
Ground on August 18. Because of information there was a
disturbance brewing between rival gang members at the
church, the Bakersfield Police Department's gang unit had
officers there, as was common with respect to gang
members' funerals. Sergeant Jehle, whose nickname in the
gang area was Mario, was present at the funeral and made
eye contact with Johnson, whom he then observed for a
couple of minutes. When people were dispersing, Jehle may
have seen Johnson again. There were tensions at the
funeral because factions from both the Eastside Crips and
Country Boy Crips were there, as Bowen had friends and
family on both sides. Although there were posturing and
verbal exchanges, there was no physical altercation.
Johnson related that he had also been involved in another
shooting. He said he, Dixon, and Lee were "rolling around" at night when
they bumped into some Bloods at a mini market somewhere off of South
Real Road and Planz. They saw the Bloods again at the stoplight, and
Johnson came out of the window and started shooting at the Bloods.
Johnson said he was pretty sure he hit one, and he heard later that the
person was paralyzed. Johnson said the shooting was retaliation for Cutty
Pete. Cutty Pete was a Country Boy Crip who was shot by the Bloods.
Jackson knew about that shooting from his homies and from what Cutty
Pete told him.[fn51] In addition to Johnson, Jackson received information
about the Real Road and Planz shooting from his brother, who had a
relationship with a Blood's sister.
FN51: According to Adrian Bonner, Cutty Pete appeared to
be in "okay" physical condition at the time of their verbal
altercation the morning Bonner was shot. As far as Bonner
could tell, Cutty Pete had not been shot.
Jackson was arrested on August 23 as a parole absconder. He told
the officer that he could not afford to get locked up because he had a
family to take care of, and that he knew some information about some
shootings. Jackson decided to talk about what he knew because he was
fed up with the Country due to the death of Raybo and the robbery, and he
wanted out. He wanted a normal lifestyle. Officer Beasley, who arrested
Jackson, put Jackson in touch with Detectives Heredia and Darbee.
Jackson spoke with them later that night and told them about the McNew
Court and Real Road shootings, but he held back some details because
he was not sure how much he could trust them. They were former gang
officers who had harassed Jackson a couple of times. In later interviews,
he told everything he knew about the shootings.
Following his arrest, Jackson was booked into jail. He was in a
holding cell when he saw Dixon, who was in a different holding cell. Later,
they were placed in the same cell. Dixon told Jackson he was accused of
running from the police out of a car with Lee. Dixon said there was a Tec-9
in the car, and that Maniac was in the car with them but got away. Dixon
said he never even got to use the gun. Dixon said he (Dixon) also got
away and made it home, but then the police came to his house and
arrested him and accused him of running from the car. Dixon was angry at
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Lee because he thought Lee told on him.
Dixon and Jackson were in the same cell for three or four
days.[fn52] During that time, Dixon told Jackson that he was involved in
the shootings on McNew Court. Dixon said he and Johnson both were
shooting and did not know which one hit the victims. After the shootings,
they started going back to the car. Police or someone came, and Johnson
dropped a hoodie or cell phone. Lee was waiting in the car, and they went
back and got in. Dixon said he got picked up later on and questioned
about that case, but he was not arrested for it.[fn53] Dixon said that when
he got "out of this gun beef case," he was going to slow down. He just
wanted to get out and take care of his son. Dixon also said he thought he
killed his own cousin "over there."[fn54] Dixon said he had done things for
the hood, but the homies were not showing him recognition and giving him
money and things like that.
FN52: Jail records showed Jackson and Dixon were
assigned to the same cell from August 24 to August 29.
FN53: On cross-examination, Jackson testified that when he
first spoke to Dixon, Dixon said he and Johnson were
involved in the McNew Court shooting. He said nothing
about Lee. On redirect examination, however, Jackson
testified that he remembered telling the grand jury that Dixon
said Lee was the driver during the Stroller Boy (McNew
Court) shooting, and reiterated that Dixon told him, in jail,
that Lee was the driver of the car during the McNew Court
incident.
FN54: Dixon did not go into further detail, although Jackson
knew Dixon was related to the Wallaces who lived on Watts
Street. In one of his interviews with detectives, Jackson
related that Dixon said his cousin's name was James
Wallace.
Dixon also told Jackson about the shooting on South Real Road.
He said he was in the car when Johnson came out of the window on the
"red rags," meaning Bloods. Lee was driving, and Dixon was the one who
pointed out the Bloods.[fn55]
FN55: On cross-examination, Jackson testified that when he
was hearing this story, he was not hearing that Lee was in
the car and, in fact, he told detectives that Dixon was the
driver. On redirect examination, however, Jackson testified
that he had told the grand jury that Dixon said Johnson shot
the person on the corner of Real Road and Planz, and Lee
was the driver of the car. Jackson reiterated that that was
indeed what Dixon told him while in custody on August 24.
On August 29, Darbee and another detective asked Jackson if he
would agree to testify if this case went to court. Jackson stated he was
willing to do so, despite the fact it would make him a marked man for the
rest of his life. Jackson then did his time on his parole violation and was
released in January 2008, without any intervention from the Bakersfield
Police Department. Upon his release, he went into the Witness Relocation
Program. He was in the program for about five months, during which time
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his rent was paid and he was given $400 to $500 per month for his other
expenses. In June 2008, his parole was violated for being around a gang
member.[fn56] It was his understanding that he would be placed back in
the Witness Relocation Program after he finished testifying.
FN56: This person had come to Jackson's location. Jackson
did not go into the Country; he left the Country Boy Crips
when he decided to testify.
Jackson was brought from prison to the county jail on October 31,
in preparation for his testimony at trial. Early in November, he was placed
in a holding cell next to Lee, who saw him and wanted to know what Lee
did to Jackson, and whether this was about Lee having a relationship with
the mother of Jackson's baby. When Jackson said it did not have anything
to do with her, Lee wanted to know if Jackson was going to get on the
stand and testify against them. Jackson said he did not know because he
wanted Lee to leave him alone. When Lee kept on pressuring him,
Jackson said he would not testify. Lee then told Jackson to sabotage the
case by saying it was something about the mother of Jackson's child that
made Jackson mad and caused him to lie. Jackson agreed he would do
that so Lee would leave him alone. At some point during the conversation,
Lee said Rifleman wanted Jackson to say Jackson was having a
relationship with Rifleman's girl who drove the Expedition. Jackson knew
nothing about whether a girlfriend of Johnson was going to testify, but told
Lee that if it would help them, to "lay it out" to him. The last time Jackson
saw or talked to Johnson's girlfriend was in 2006, when he first got out of
prison.
After this conversation with Lee, Jackson had a conversation with
Johnson. Johnson told Jackson the same thing Lee had. Johnson asked if
Jackson was being paid for his testimony, having heard Jackson received
$10,000. Johnson also said that when he beat up his girl in Las Vegas, he
got a ride back to Bakersfield with Chris Haynes. Johnson said he knew
where Jackson was staying, and he mentioned a motel.
On another occasion in jail, Jackson was being placed in a holding
tank when he saw Johnson in another holding tank. Johnson called
Jackson a "bitch ass nigga." In November 2008, Jackson's custody
situation was changed, and he was housed in his own isolated cell with his
own television, and transported to court by a special team. He was
testifying because he believed it was the right thing to do. If he were to
serve his parole violation in prison, however, he would not get his own cell
or television.
Testimony of Law Enforcement Gang Experts
As of April 19, Kern County Sheriff's Senior Deputy Little was in the
gang unit, and responsible for all Black gang activity in Kern County. He
was an expert on gangs, and particularly African-American gangs. The
first time he learned of Lee was in April, after the McNew Court shootings.
However, in April 2007, there were approximately 750 to 1,000 members
and affiliates of African-American gangs, and he did not know them all. He
had known Johnson since 1998 or 1999 when Johnson's name first came
up in a gang context. Little had heard of Dixon in the context of Dixon's
manslaughter conviction, but did not know much about him. Little was
unaware of any instances in which Johnson was searched and a firearm
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was found, or in which his or his family's residence was searched and a
gun or ammunition was found.
On July 7, Little conducted a search of a residence in the 2900
block of North Half Moon, where Dixon was residing. Little found one letter
from Juaqkeib Oliver and another from Frankie Baker. Both contained
gang references. The letter from Oliver was signed "Munchy Locsta" and
talked about the author being on an "egg hunt" because of being
sentenced to a lengthy prison term. "Egg" is a derogatory term for
Eastside Crip gang members.[fn57] Little found no hoodies, black pants,
guns, or ammunition.
FN57: "Cornbread" is a derogatory term for Country Boy
Crips.
During the course of his investigation, Little searched the Internet
site MySpace.com, to see if any defendants had a MySpace page.[fn58]
Little was unable to locate a MySpace page for Dixon or Johnson, but
found one registered to a David Lee from Bakersfield that displayed
photographs of the David Lee who was a defendant in this case. The
screen name was "Gunner," and next to it was the acronym "P.E.N.U.T.E."
A photograph of Lee and Johnson had been selected as the "this-is-who-Iam" photograph.
FN58: It was Little's experience that gang members are often
proud of their membership. They may use a social network,
such as MySpace, to advertise their membership,
sometimes posting photographs of themselves displaying
gang signs, writing about their gang ideology, and the like.
By means of a search warrant, Little obtained public and private
information for the page from MySpace in August.[fn59] Public information
included a photograph of Lee and Johnson and, under "Gunner's
interests," a flashing message "Keepin' it Gangsta." There was also a
photograph of Lee and a person known to Little to have Country Boy Crip
connections. Private information included a subscriber's birth date, city of
residence, and occupation that were consistent with Lee, as well as
unread messages that were consistent with the dates Lee was in custody.
Some comments contained gang references, such as "Cuz" (which Crip
gang members call each other) and "South" (another name for Country
Boy Crips, who also go by South Side Crips). A number of messages also
contained gang references. Included in these was "900 block," which
refers specifically to the Stroller Boy Crip subset of the Eastside Crips and
which derives from an address on Feliz Drive that is a famous location for
the Stroller Boy Crip subset. One of the messages, which was sent the
morning of March 22 by someone accessing Lee's MySpace page,
referred to the Tahoe being shot up the previous night on Pacheco Road
and the writer "bounc[ing] bacc," and concluded, "it's still ESK till I die.
P.E.N.U.T.E. Bitch." This message was consistent with the shooting of
Lee's Tahoe on Deanna Way, a location one or two blocks north of
Pacheco Road. In Little's opinion, based on his overall experience, the
reference to bouncing back was indicative of someone bouncing back and
taking retaliation. It was plausible that the retaliation was the McGowan
shooting, which fit with the timeline.[fn60]

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FN59: If a MySpace account has been set to private, only
those who request to be and are accepted by the account
holder as MySpace friends can access the private portion.
FN60: Little testified he could not cite a case in which gang
members said something to the effect of, "I bounced back,"
to refer to a shooting of a rival. Little found no references to
the McNew Court shooting or the shooting at Real Road and
Planz on the MySpace page.
Ultimately, Little obtained search warrants for various other
MySpace sites, including those of Lee's family members. As a result, he
learned P.E.N.U.T.E. stood for "Putting Egg Niggas Under the Earth."
From interviews with some who used the acronym, Little learned it was a
clique of Westside Crips and Country Boy Crips, but did not last long and
was not considered to be an active clique anymore.
Based on the Agustin interviews, the materials he reviewed, and
particularly the MySpace investigation, Little opined that Lee was the
owner of the MySpace account under his name. Little further opined that
the Web site was indicative of gang activity on Lee's part.
Senior Officer Sherman of the Bakersfield Police Department
testified as the People's primary expert on gangs. He was familiar with the
Country Boy Crips, which existed in 2007, from personal contact with
Country Boy Crip members, their rival gang members, and investigating
gang crimes in which Country Boy Crips were victims and suspects. In his
opinion, the Country Boy Crips was a criminal street gang in 2007, as it
had three or more people, its members had a common sign or symbol,
and its members were involved in an ongoing pattern of criminal activity
involving criminal offenses listed in the Penal Code.
Sherman recounted the history and growth of the Crip movement in
Bakersfield; the development of the Eastside, Westside, and Country Boy
Crip factions; the traditional territories of those factions; and the various
subsets of the Country Boy and Eastside Crips. Sherman testified that
powder blue is the color associated with the Country Boy Crips, and that
the North Carolina college team uses the same color. Sherman also
explained the role played by graffiti, to both mark territory and show
disrespect to rivals. He also explained the role of tattoos, which,
depending on the actual tattoo, show gang membership or allegiance.
They may also be indicative of disrespect to rivals, or pay tribute to
deceased fellow gang members. Sherman explained that, while there will
be members in every gang who have tattoos related to that gang, not
every member will have a tattoo. Sherman also explained that clothing can
be used to show membership in a gang or to show disrespect to a rival
gang. However, not all gang members wear their colors all the time,
because they know the consequences of being documented by law
enforcement in gang clothing and how it can affect a possible criminal trial.
Just because someone does not wear colors does not mean he is not a
gang member. In addition, gang members also use hand signs to
communicate and show where they are from or that they are a rival.
Sherman explained that respect is a very large part of the gang
lifestyle, and in fact a lot of gang members get into the gang because they
want that respect. A gang member can get respect by having a lot of
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money, being a good narcotic dealer, or being willing to go around with a
weapon and shoot rival gang members. If a person who belongs to a gang
is disrespected, that person has to answer back. If he does not, he ruins
not only his own respect, but shows the other gangs that his gang is not
very strong. Often, the retaliation must go above and beyond the nature of
the disrespect. For instance, disrespect with words will be answered with
physical assault. A physical assault might be answered with a shooting. A
shooting might be answered with murder. Although the retaliation does not
have to be immediate, it has to occur.
In 2007, there were several Country Boy Crip hangouts — places
where the gang members would congregate, usually either to conduct
their criminal activity or to throw parties. The main ones were the D&A
Market on Cottonwood Road, the Hollywood Market on East Planz, the
Watts Market at Watts and Lotus, and residences in the 900 block of
Bradshaw, the 1100 block of Altus, and the residence on Deanna Way at
which Lee's vehicle was shot in March. The Eastside Crips also had
particular hangouts, as did the Westside Crips. In 2007, a weak alliance
existed between the Country Boy Crips and the Westside Crips. That year,
one of the latter's common hangouts was a residence in the 400 block of
Eye Street.
In 2007, the Country Boy Crips had over 200 members. Their main
rivals were the Eastside Crips and the Bloods. The rivalries were longstanding and ranged from simple assaults and fights to drive-by shootings
to homicides. One of the major incidents between Eastside and Country
was the Casa Loma shooting in 1999. Several Country Boy Crip and
Westside Crip gang members were at a wake at Casa Loma Park when
several Eastside Crip gang members came by, fired into the large crowd
of people there, and so shot several affiliates and family members of both
gangs. Beginning in January 2007, the Eastside-Country rivalry showed
itself in a number of shootings going back and forth between the two,
where members from each gang were victims of gang violence. Sherman
opined that the McNew Court shootings in April were part of this pattern,
which continued on into May.
The Eastside Crips' primary activities were narcotics possession for
sale, weapons possession, assaults, and homicides. In Sherman's
opinion, the Eastside Crips were an active criminal street gang in 2007.
Based on his research, he opined that Anthony Lyons, Othelon Lyons,
Curtis Miller, and Albert Darrett were all Eastside Crip gang members in
2007. Sherman found no information, however, to indicate James Wallace
or Vanessa Alcala were gang members.
In 2007, the Bloods and Country Boy Crips were rivals. The Bloods'
primary activities were narcotic possession for sale, weapons possession,
assaults, and homicides. The Bloods in Bakersfield did not have a
traditional territorial boundary; rather, because they were small in number,
they were more migrant and controlled small apartment complexes or a
few blocks in an area for a while until they usually were run out. In 2007,
their hangouts included Monterey and Inyo Streets and the Grinnage
residence on Deborah Street. A lot of rock cocaine sales were conducted
at Inyo and Monterey Streets. In 2007, there were tensions between the
Bloods and other rival gangs in Bakersfield.

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Based on his investigations, Sherman opined that the Bloods were
an active criminal street gang in 2007. From his research, he concluded
that Adrian Bonner was at least affiliated with the Bloods, and Edwin
McGowan was a Blood gang member, in 2007.
In Sherman's opinion, in 2007, the primary activities of the Country
Boy Crips were sales and possession for sale of narcotics, including rock
cocaine (the primary drug sold), methamphetamine, and heroin;
possession of concealed and loaded firearms; threats and intimidation of
witnesses and victims; burglaries; shootings; and murders. In Sherman's
experience, the sale of narcotics is used to fund the gang, allowing it to
buy more narcotics and firearms, and to rent cars and properties and
facilitate gang activities. The possession of concealed and loaded firearms
assists the gang in that firearms are used to fight against rival gang
members, to protect gang members from rival gang members, to protect
their narcotic trafficking endeavors, and as a form of respect. A gang
member who carries a firearm will be "more macho" than one who does
not. Burglaries are committed by gang members to steal items to sell to
gain money to further the gang's narcotic activity, and also in an effort to
locate firearms. Shootings and murders are used to fight against rival
gang members, to show other gangs that they are not a gang to be
"messed with," and to get respect.
Based on his investigations and the information he gathered from
speaking with other officers and from working in the gang unit, Sherman
opined that in 2007, the Country Boy Crip criminal street gang was
engaged in a pattern of criminal activity. Based on his training and
experience, he further opined that gang members discussed crimes and
court cases among themselves (and sometimes with law enforcement
officers), and that the pattern of criminal activity by the Country Boy Crips
was a matter of common knowledge for gang members.
For purposes of showing predicate offenses and a pattern of
criminal activity, Sherman described the following cases:
• Case No. BF95016A, involving Dixon. In that matter, in March
2001, Dixon and another African-American male were walking in Eastside
Crip territory when they shot at several teenagers sitting on a porch. A
month later, Dixon shot and killed an Eastside Crip member who was in
Country Boy Crip territory. On September 11, 2001, Dixon pled to
manslaughter and was sentenced to prison. In Sherman's opinion, Dixon
was a member of the Country Boy Crip gang when the offense was
committed.
• Case No. BF105692, involving Vertis Bayne. In that matter, in
August 2003, Bayne shot an Eastside Crip while riding past on a bicycle.
He was convicted of attempted murder, assault with a firearm, and exfelon in possession of a firearm with gang enhancements, and sentenced
to prison. In Sherman's opinion, Bayne was a member of the Country Boy
Crips when the shooting was committed.
• Case No. BF106522, involving Joseph Ferguson. In that matter, in
April 2004, officers investigating a shooting tried to stop a vehicle driven
by Ferguson, but a pursuit ensued. During the pursuit, an Uzi-type firearm
was thrown from the vehicle. Ferguson was convicted of weapons
violations, including gang member in possession of a firearm, and evading
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police with a gang enhancement, and sentenced to prison. In Sherman's
opinion, Ferguson was a member of the Country Boy Crips at the time of
the offenses.
• Case No. BF115529, involving Eddie Peterson, Sr. In that matter,
in March 2006, officers conducting a parole search of Peterson's motel
room found narcotics and sales indicia. Peterson was convicted of
possession of narcotics for sale and sentenced to prison. In Sherman's
opinion, Peterson was a member of the Country Boy Crips at the time of
the offense.
In connection with the present case, Sherman researched the
criminal history of defendants in order to determine if they were active
gang members at the time the crimes were committed. He determined that
Johnson, whose birthday was April 12, 1986, had the monikers Lil C, Rifle,
and Little Rifleman, and that he had gang-related tattoos in several places
on his body. He also determined that Johnson had numerous police
contacts, dating back to October 2000, in which Johnson variously
associated with Country Boy Crip members, was in Country Boy Crip
territory although he did not live there, admitted his own Country Boy Crip
membership, or was involved in gang-related activity. Two of the contacts
involved Johnson being the victim of gang-related shootings, and another
resulted in Johnson being convicted of being an accessory to a gangrelated murder that took place in Eastside Crip territory. In addition, what
was written on the shirt Johnson wore at the picnic in January 2007,
showed his Country Boy Crip membership and his disrespect toward
Eastside Crips. Also, rap lyrics written by Johnson referred to the gang,
gang lifestyle, and violence associated with that lifestyle. Sherman also
reviewed Johnson's jail bookings. In the bookings between December
2004 and September 2007, he claimed Crip and requested keep-away
from the Bloods.[fn61]
FN61: The jail does not have enough housing to keep apart
the various cliques of the gangs.
Based on everything Sherman reviewed and personal contact he
had had with Johnson, Sherman opined that between March 1 and August
22, 2007, Johnson was an active member of the Country Boy Crips.
Agustin's and Jackson's testimonies reinforced his opinion.
Sherman also researched Lee, whose date of birth was October 17,
1984. Lee had what appeared to be a gang-related tattoo. His moniker
was Gunner or Gunman. Lee had several prior contacts with law
enforcement dating back to July 30, 2005, at which time he was with
known Country Boy Crip gang members and associates. In February
2007, he was stopped in the company of Johnson and other Country Boy
Crip members, in Country Boy Crip territory, although he did not live in
that area. On March 21, 2007, Lee was the victim of a shooting at a
Country Boy Crip hangout on Deanna Way, but did not stay at the crime
scene because he did not want to have police contact at the time for
"whatever personal reasons." On March 22, he was again the victim of a
shooting, this time in the vicinity of a Blood hangout near the Country Boy
Crip hangout on Deanna Way. Again, he initially did not want to tell police
about being shot, but later provided a statement.[fn62] When contacted by
Sherman and another officer the next day, Lee admitted that his friends
and family were Country Boy Crips, although he did not admit that he
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himself was. In August, Lee was arrested with Dixon after a vehicle
pursuit, and a Tec-9 handgun was found in the vehicle.
FN62: In Sherman's experience, people who are in gangs
are often victims of gang violence because of the lifestyle
they are in.
Sherman also reviewed Lee's MySpace page. There were gang
references in some of the incoming and outgoing messages, with the
writer (who gave Lee's telephone number) identifying himself as a Country
Boy Crip, referencing other Country Boy Crip members, and trading
threats with an Eastside Crip.[fn63] The page also contained a photograph
of Lee making a "W" hand sign for Watts. In addition, letters seized during
the search of Lee's residence on Myrtle Street contained gang references
and indicia. One of the letters from Robert ("Critter") Lee expressed
surprise that Lee was giving up his job "for the hood," and warned that if
Lee was going to do that, he could only trust a few people. Another from
Robert Lee warned Lee not to tell their parents about what Lee and his
brother, a Country Boy Crip, were doing. By contrast, Robert Lee's letters
to his father contained no gang references.
FN63: Sherman conceded he did not have personal
knowledge of the identity of the author of any of the entries,
and did not compare the dates and times with records of
Lee's work history.
Sherman also reviewed Lee's jail bookings. Lee did not claim a
gang or request to be kept away from anyone. Based on everything he
reviewed, however, Sherman opined that Lee was an active member of
the Country Boy Crips between March 1 and August 22, 2007. Agustin's
and Jackson's testimonies reinforced this opinion.
Sherman also researched Dixon, whose date of birth was October
11, 1983. Dixon had the monikers Dodo and Baby Clacc, and he had
gang-related tattoos on various parts of his body. Prior police contacts
revealed that in May 1998, Dixon was arrested for possession for sale of
rock cocaine while in the company of individuals who later became
documented Country Boy Crip members. The next month, he was acting
as a lookout for narcotics sellers in Country Boy Crip territory. In
September 1998, Dixon was arrested for possession of rock cocaine and
a firearm. In December 1999, Dixon was arrested in Country Boy Crip
territory for possessing a loaded firearm. In November 2000, Dixon was
the victim of a drive-by shooting while in Country Boy Crip territory. In
March 2001, Dixon was contacted at Watts and Lotus, although he did not
live in Country Boy Crip territory. In April 2001 was the gang-related
shooting that resulted in Dixon's manslaughter conviction. During a July
2007 parole search of Dixon's residence, officers found letters containing
gang references addressed to Dixon. In August 2007, Dixon was with Lee
during the vehicle pursuit. Dixon fled, but was later arrested at his
apartment. He was seen wearing light powder blue clothing, and a loaded
Tec-9 was found in the vehicle.
Sherman also reviewed Dixon's jail bookings. In May and August
2007, Dixon claimed Crip, with Country Boy Crip as the subset, and
requested a keep-away from Bloods. Based on everything he reviewed,
Sherman opined that Dixon was an active member of the Country Boy
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Crips between March and August 2007.
Sherman did background checks on persons mentioned by Agustin
and Jackson in their testimonies. In addition to determining their true
names, he opined that Bus Loc, Fat-Fat, D-Keys, Goo, Big Jim, Raybo,
Two C's, Nip, Cutty Pete, Riko, and Big Gage were all Country Boy Crip
members, with Gage being an OG. Sherman also researched Agustin's
background. He found no gang-related contact with police for her.
Sherman explained that all gang members are expected to "put[] in
work" for the gang. "Putting in work" can mean selling narcotics, stealing
items, getting guns, or even committing a shooting or assault. The type of
work may vary according to the gang member's personality or strengths. A
shot-caller is an old gangster who has been around for a while, has put in
his work, and is well respected. He may be the one who directs the
actions of others. There are shooters within the gang; these are the
people who commit the assaults, drive-by shootings, and even homicides.
They are the aggressors and enforcers. These persons are respected
because they are feared, even by fellow gang members. The status of the
victim has an effect on the status of the shooter; if he shoots a rival gang
member, he gains status and respect. By contrast, if, in trying to shoot a
rival member he misses and kills an innocent party, it will not necessarily
create a backlash against him, but he will not get as much respect. It is
common for shooters in a gang to brag to fellow gang members about
whom they shot. They will not, however, take credit for something
someone else did, as that would constitute disrespect toward the actual
shooter. The bragging, which is done to get credit for the shooting, does
not commonly involve a recitation of intricate details.
Sherman explained that a walk-up shooting involves walking up to
the intended target and shooting. If it is done in rival gang territory, the
perpetrators usually will have some sort of transportation. They will either
drive through the territory to scope out the target or see if it is available,
then park somewhere close, physically get out of their vehicle, walk up to
the target, shoot, and then return to the vehicle and flee the rival gang
territory. Communication with other gang members during walk-up
shootings usually is by phone; there needs to be communication between
the shooters and the person left in the car in case something goes wrong
and plans change. Clothing also plays a part; the shooters commonly
wear neutral colors that will not make them stand out to witnesses. On the
other hand, it can also be used as a ruse to throw suspicion onto a rival
gang. Layers of clothing may be worn so the shooters can change their
physical appearance after committing the crime and thus will not fit the
descriptions given to police. Sometimes, gang members will stash clothing
before the shooting and then change into it later.
Sherman also explained that a drive-by shooting involves driving
the car up to the target. Disadvantages are that the shooters' vehicle is
seen and a vehicle leaving the scene at a high rate of speed draws the
attention of arriving law enforcement officers. Shooters on foot can find
somewhere to hide and even wait out the police.
According to Sherman, women play a supportive role in the Country
Boy Crips and other gangs. They provide the male gang member with
financial support, a place to live, a car to use, or a cell phone or clothing.
They also conceal or stash the male gang member's illegal activities, such
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as guns or narcotics. Whether gang members discuss gang activities with
the women depends on the trust factor between them. If the two are in an
ongoing, serious relationship, he may divulge some things to her, but is
unlikely to go into depth regarding the inner workings of the gang. The
male will instill in the female the idea that she is not to tell; if she does, she
risks assault or death.
Gangs have rules about not cooperating with law enforcement. One
who cooperates is considered a snitch. Even a gang member who is a
victim of gang violence often will not cooperate, because he wants to get
his respect back, and allowing the police to take care of it will not achieve
that. Similarly, a gang member will not want to come to court and testify,
even against a rival gang member for that is considered snitching. A gang
member who testifies may face threats, intimidation, and assault, both to
him and to his family.
In answer to hypothetical questions based on the prosecution's
evidence, Sherman opined that the shooting at Monterey and Inyo,
shootings at McNew Court, and shooting at Real Road and Planz were
committed for the benefit of the Country Boy Crips, and were done with
the intent to promote, further, or assist criminal conduct by the Country
Boy Crips. Sherman further opined that if there was an agreement
between the involved Country Boy Crips to do the shooting or the killing,
plus an act of traveling to the location for that purpose, those acts also
were committed for the benefit of the Country Boy Crips. A Country Boy
Crip member promotes his gang by shooting at a rival gang.
Sherman further opined that if a Country Boy Crip who was a
convicted felon was in possession of a loaded firearm in the vicinity of
McNew Court, that act would promote or benefit the Country Boy Crips
gang, because that gang member was willing to carry the firearm and
commit an act for the benefit of the gang. In addition, Sherman opined that
if four Country Boy Crips, each armed and in agreement to locate and kill
the person (or a relative of the person) they believed had murdered their
fellow gang member, drove to a location near Panorama Drive to carry out
their intention, those acts were committed for the benefit of, and with the
intent to promote, further, or assist conduct by, the Country Boy Crips. The
Country Boy Crip who was killed was thereby disrespected, and the four
Country Boy Crips were acting to get the respect back for their gang and
their deceased friend. Even the act of getting together with guns and going
to the location would earn them respect, as they were willing to take
matters into their own hands. If the felon who possessed a firearm helped
a second Country Boy Crip sell a firearm so the latter could leave
Bakersfield after shooting a rival gang member, his acts would be done
with the intent to promote or benefit the Country Boy Crips.
II.

Defense Evidence

Johnson's Case
Jim Dill lived in the Encina Street residence in mid-September
2007. Before he cleaned the fireplace, there was a quarter inch of ash in
it, but no burnt clothes or metal zippers.
Theodore Richard was a cement mason at the time of trial, and had
been doing that since June 2008. As of the time he testified, he was not
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doing anything else for money.
Richard was Jackson's cousin. Jackson was "like a brother" to
Richard, who was testifying because of the various things Jackson had
told him about this situation. Jackson had been frequently seeking Richard
out ever since Richard came home.
Jackson told Richard that Jackson was not going to testify in this
case. Jackson related that law enforcement had threatened to charge him
with Raybo's murder, and he was afraid of being prosecuted for that
offense. During their conversations, Jackson mentioned a girl named Sara
that he was dating. Jackson said she was supposed to be the ex-girlfriend
of one of the defendants in this case. Jackson told Richard that he was
lying about defendants. Richard never told Jackson not to come to court or
what to say if he took the witness stand, but he did tell Jackson not to
testify to the lies Jackson was telling Richard.
Richard denied ever being told by Johnson (whom he had never
met) or anyone else to intimidate Jackson or try to convince him not to
come to court. He admitted, however, having been convicted in federal
court in February 1999 of conspiracy to distribute and possession for sale
of cocaine. While in federal custody in April 2000, he pled no contest in
Kern County to felony assault with a firearm.
Kevin Griffith saw the car involved in the shooting of Adrian Bonner.
It was like a red Nissan Sentra, and the paint on the back trunk hood was
bleached or oxidized by the sun. Later that night or possibly early the next
morning, he saw what he was "pretty sure" was the same car again.[fn64]
It had been pulled over at Fastrip on Real Road and Ming. Shannon
Fowler's car was not the car Griffith saw at the time of the shooting or
later. Griffith was not able to clearly identify anyone in the car at the time
of the shooting. When he saw the car later, it contained three AfricanAmerican men. The driver appeared older than defendants. The others in
the car were "[m]ostly older" than defendants, perhaps in their late
30's.[fn65]
FN64: In his 911 call, he said he was positive it was the car.
FN65: In the summer of 2007, Aaron Norwood drove a red
1991 or 1992 Ford Tempo. The paint on Norwood's car was
pretty faded and dull.
On August 11, Norwood worked the 6:00 p.m. to 10:00 p.m. shift at
PetsMart. He took no breaks, although the store's employees may have
left around 9:30 that evening at the manager's behest. He drove his car to
work that day and parked it in front of the store. He did not drive the car
during his shift, no one borrowed it, and when he left to go home, it was in
the same place that he had left it. After work, he went to a party, then,
around 2:00 a.m., he was pulled over at the Fastrip at Ming and Real
Road, which was about a mile from Real Road and Planz. At the time, he
was with his cousin and a friend. The police searched the car, and the
next day searched Norwood's house. They found a live .38-caliber round
of ammunition. It had belonged to Norwood's late brother, and Norwood
had kept it. Norwood was interviewed at the police station and, after it had
been confirmed with his boss that he and his vehicle had both been
present at PetsMart at the time of the Adrian Bonner shooting, released.
52

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Dixon's Case

2

On August 11, 2007, Pamela Ginn's grandson had a birthday party
at Camelot Park, an amusement park on Oak Street. The party began
about 2:00 p.m. and lasted until it started to get dark. Ginn, who had
known Dixon most of his life, saw him at Camelot Park that day. He was
there until the party ended, and helped put the gifts in the car. At no time
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Dixon testified that he was born in Bakersfield and raised in the
Country. Growing up in that area, Dixon — who acquired the nickname
Dodo during childhood — saw drug sales and shootings every day. He
grew up with a bunch of kids who got into the gang. They hung out
together because they were friends and grew up with each other.
Dixon admitted that in addition to being called Dodo, he was
sometimes called Baby Clacc, a name he took for himself because he
wanted to be like his cousin, Frankie Baker, who was known as Big Clacc.
Dixon knew the Country Boy Crips were a criminal gang, but explained
that those in the gang looked on each other as family, as there were
several generations of people within the gang. In addition, because
Bakersfield was so small, it was not unusual to have family members in
the other gangs. For example, Dixon's father used to be an Eastside Crip.
Dixon was 14 years old when he became a Country Boy Crip. The
only crimes he ever committed were possessing firearms and selling rock
cocaine. He never shot a gun, but simply carried a firearm for protection.
He sold drugs for himself. He did this in Country Boy Crip territory. The
gang left him alone because his mother lived there and he was raised
there.
Dixon denied committing the killing for which he pled no contest to
voluntary manslaughter in 2001; he was charged with murder and wanted
to go to trial, but his then-attorney told him juries did not like gangs. His
attorney told him that he was facing a sentence of 56 years to life in prison
versus six years. Dixon, who was only 17 at the time, did not want to do
life. Dixon did not have any tattoos until he went to prison. He got almost
all of his tattoos when he was 18 and in prison, where tattoos are "just
fashion."
Dixon was paroled on March 4, 2007. He moved in with his cousin
Keshiea, who lived off of Pacheco Road, but she got evicted. He then
moved in with Myeshia Herring on Chandler, then moved to an apartment
on North Half Moon with Keanna King. Each time he moved, he notified
his parole officer. After he paroled, he did not do anything for the gang, but
just socialized with Country Boy Crips because all his friends were from
there. As for Johnson, Dixon knew he was a gang member, but did not
know what his role was in the gang. The two merely socialized, and Dixon
never saw Johnson do any criminal activities. Around March or April,
Johnson was cutting hair in different neighborhoods. When he cut hair, he
sometimes wore his brown barber's smock.
Dixon had known Lee since elementary school. Lee was only
known as Dave. Dixon never saw him sell any drugs; Lee did not grow up
like that. When Dixon was in prison, he would hear that Lee's brothers
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were "hanging out," but not Lee. Dixon had seen Lee smoke marijuana,
but never with a mask. Dixon never saw him with any weapons of any
kind. Lee never wore powder blue clothes. How he dressed in court was
how he dressed on the street.
Dixon did not have a cell phone when he was first paroled, but
Myeshia and the others could not get in contact with him so she said her
sister had a phone for him. He let other people use the phone if they
needed it. He last saw that phone on April 18, in Agustin's Expedition.
Johnson dropped Dixon off, and Dixon forgot the phone. Dixon called
Johnson from the house phone at Keanna King's residence and told
Johnson he would get it from him the next day.
The next day or shortly after, however, Myeshia contacted him and
said Deputy Little wanted to talk to him. Dixon called Little, who asked him
to come in for an interview. Dixon went, but denied he was known as
Dodo, because that name had been used against him back in 2001. He
also denied that the cell phone found at the scene was his, because the
officers were telling him they had an eyewitness who had seen him on
McNew Court. They asked whether he was Rifleman. That was why Dixon
subsequently called Johnson; Dixon asked him why Dixon's phone was at
a crime scene. Dixon could not explain to the detectives about forgetting
the cell phone in the Expedition, because if someone becomes a snitch,
his family will disown him, and Dixon's whole family was from the gang.
After Dixon asked Johnson why Dixon's phone was at a crime
scene, Johnson left and went to San Jose. Johnson never explained why
the phone was there.
Dixon denied being present at the shootings on McNew Court.
James Wallace was his cousin, although they did not grow up together.
Dixon denied robbing any drug dealer on Cheatham Street or Reese
Street. Robbing one's own homie would bring repercussions and would
probably cause one's own gang to turn against the robber.
Dixon was acquainted with Shannon Fowler. Among the people
who lived in the apartments in the 200 block of Eye Street during August
2007 were Fowler, who was having a sexual relationship with Lee, and
Krystle, who was seeing Johnson. In addition, a girl Dixon was seeing
often visited her friends in the complex. Fowler had a red car, but she
never let Dixon and the others drive it. Dixon had never been in that car.
Dixon was familiar with the house in the 400 block of Eye Street.
The man who lived there sold drugs. Dixon grew up with the daughters of
the woman who lived there. Dixon never went to that location to help
Johnson try to sell a gun so he could go to Las Vegas. Johnson never
took Dixon to the intersection at Real Road and Planz to show him a
camera.
Dixon grew up with Raybo. When he learned from his aunt that
Raybo had been killed, he borrowed his sister's car and drove over to
Reese and Cheatham Streets. He estimated there were about 200 people
there when he arrived, including Johnson, Lee, and Raybo's brothers.
Everybody was discussing what had happened; everyone knew it was an
inside job, meaning it had to be a homie who did it. During this discussion,
Jackson arrived. Johnson walked over to him, and Dixon, Lee, Raybo's
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brothers, and some other homies followed. They all told Jackson that they
had heard he killed Raybo. Jackson denied it and blamed it on Fumes
(David Taylor).
While everyone was talking to Jackson, Dixon left to pick up his
sisters. He returned later to the area of Reese and Cheatham, but never
got into a vehicle with Jackson, Johnson, and Lee to go to the Bakersfield
College area to kill Fumes or his father. Jackson was telling everyone that
he knew where Fumes or Fumes's father stayed, but to Dixon's
knowledge, no one went up there.
Dixon denied knowing Adrian Bonner or being at South Real Road
and Planz at the time Bonner was shot. He was at Camelot Park, off
California and Oak, at the time of the shooting. Dixon learned of the
Bonner shooting shortly after it happened. When he and Ginn's son left
Camelot Park, they went to the residence of Columbus Holford. Bonner's
sister and Holford were friends, and she had called Holford right after the
shooting.
On August 23, the day he was arrested, Dixon was the driver of a
car that also contained Lee and someone called "Set Trip," whose real
name Dixon did not know. The three were just talking. Dixon did not know
there was a Tec-9 in the car until Set Trip told him to drive off because he
had the gun in the lunch pail. Set Trip tossed the gun in the back seat, and
Dixon let him out. Dixon jumped out of the car and ran because he did not
want to go back to prison. After his arrest, he was booked into the Kern
County jail and was placed in the same cell as Jackson. He never
discussed the shootings with Jackson, however. Although Dixon and
Jackson talked while celled, the talk was about them both changing and
leaving the gang. Jackson was particularly worried about his parole
violation.[fn66]
FN66: According to Dixon, he himself gave up the gang
lifestyle when he was arrested for possession of the Tec-9.
Dixon pled guilty to participating in a criminal street gang in the
case arising out of the vehicle pursuit, and was sentenced to prison. While
housed at Wasco State Prison, Dixon heard that Othelon Lyons was also
imprisoned there. They were never on the same yard, however, and never
had any contact or conversation.
Emmanuel Burts, Jr., married Agustin in September 2008. At the
time he testified, he was in jail as the result of her bringing charges
against him.[fn67] When he was arrested, he telephoned and wanted to let
the defense attorneys in this case know Agustin had lied on the stand.
FN67: Burts was pending charges of spousal abuse and
felony threats. He had suffered a number of prior felony and
misdemeanor convictions for various offenses.

27

Before she had testified, Agustin and Burts lived in Fresno. Agustin
had transcripts and went over them. She also went on the Internet and
looked at maps. She told Burts she was refreshing her memory of the
locations to which she went with her ex-boyfriend.

28

While Agustin was in Bakersfield testifying in this trial, she

26

55

telephoned Burts every day to let him know when she was back in her
room. She told Burts that she was testifying truthfully, but was leaving out
parts. She said she was not being truthful about certain things because
she did not want her son involved. Johnson sold a gun to Agustin's son, in
Agustin's presence, right before they went to Las Vegas. Agustin said it
was the gun used in the homicide. In addition, Agustin told Burts that
either Lee or Dixon (Burts could not remember which) had nothing to do
with the murder.

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2
3
4
5

In the time he had known Agustin, Burts formed the opinion that
she was very deceiving and conniving. Burts was aware Agustin received
$750 for rent and $450 for her personal things each month as a witness
for the prosecution in this case. In Fresno County, however, she applied
for food stamps and welfare, and never reported she was receiving that
money.

6
7
8

Lee's Case

9

According to Marc Taylor, a forensic scientist/criminalist and
laboratory director of Technical Associates, Incorporated, in Ventura,
California, there are ways to preserve and process items, such as
expended shell casings, so that they can be tested for fingerprints and
potential DNA without interfering one with the other. Latent fingerprints
and DNA both can be recovered from expended shell casings. In his
opinion, placing individual shell casings in on cottony cushioning in small
white boxes, as was done in this case, could result in ridge lines left by
whoever touched the casing being wiped off by the cotton. Similarly,
packaging multiple expended shell casings together in an envelope could
lead to a transfer taking place or to the ability to detect a fingerprint being
affected due to the rubbing together of various pieces of evidence. He
could not, however, say whether that happened in this case.

10
11
12
13
14
15
16

In DNA testing, when there is a good quantity of DNA, the peaks on
the electropherogram will be well within the normal analytical range. There
are specific procedures to test the analytical thresholds of the instrument
to be sure that when there is a peak above a certain height, it represents a
reliable result. If low levels of DNA from an individual are present, things
may show up in certain areas of the electropherograms but disappear in
others. Whether to include or exclude an individual as being in the profile
can then become subjective. For example, when an allele is present but in
a weaker range, there are limitations on what interpretations can be made
of that allele being present. Sometimes, the results are inconclusive.
Taylor could not say whether there was a subjectivity to the analysis of the
DNA results in this case or whether there were low quantities of DNA.

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19
20
21
22
23

People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838, 9-147 (Sept. 25, 2013).

24

II.

Discussion

25

A.

Jurisdiction

26

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

27

custody pursuant to the judgment of a state court if the custody is in violation of the

28

Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
56

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2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he

2

suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the

3

conviction challenged arises out of the Kern County Superior Court, which is located

4

within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court

5

has jurisdiction over the action.

6

B.

Legal Standard of Review

7

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

8

Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus

9

filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,

10

114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of

11

the AEDPA; thus, it is governed by its provisions.

12

Under AEDPA, an application for a writ of habeas corpus by a person in custody

13

under a judgment of a state court may be granted only for violations of the Constitution

14

or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.

15

7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in

16

state court proceedings if the state court's adjudication of the claim:

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22

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
1.

Contrary to or an Unreasonable Application of Federal Law

23

A state court decision is "contrary to" federal law if it "applies a rule that

24

contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts

25

that are materially indistinguishable from" a Supreme Court case, yet reaches a different

26

result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06.

27

"AEDPA does not require state and federal courts to wait for some nearly identical

28

factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
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even a general standard may be applied in an unreasonable manner" Panetti v.

2

Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The

3

"clearly established Federal law" requirement "does not demand more than a ‘principle'

4

or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state

5

decision to be an unreasonable application of clearly established federal law under §

6

2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle

7

(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-

8

71 (2003). A state court decision will involve an "unreasonable application of" federal

9

law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at

10

409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the

11

Court further stresses that "an unreasonable application of federal law is different from

12

an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529

13

U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks

14

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

15

correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541

16

U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts

17

have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.

18

Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established

19

Federal law for a state court to decline to apply a specific legal rule that has not been

20

squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419

21

(2009), quoted by Richter, 131 S. Ct. at 786.

22

2.

Review of State Decisions

23

"Where there has been one reasoned state judgment rejecting a federal claim,

24

later unexplained orders upholding that judgment or rejecting the claim rest on the same

25

grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

26

"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198

27

(9th Cir. 2006). Determining whether a state court's decision resulted from an

28

unreasonable legal or factual conclusion, "does not require that there be an opinion from
58

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the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.

2

"Where a state court's decision is unaccompanied by an explanation, the habeas

3

petitioner's burden still must be met by showing there was no reasonable basis for the

4

state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does

5

not require a state court to give reasons before its decision can be deemed to have been

6

‘adjudicated on the merits.'").

7

Richter instructs that whether the state court decision is reasoned and explained,

8

or merely a summary denial, the approach to evaluating unreasonableness under §

9

2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments

10

or theories supported or, as here, could have supported, the state court's decision; then

11

it must ask whether it is possible fairminded jurists could disagree that those arguments

12

or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

13

Thus, "even a strong case for relief does not mean the state court's contrary conclusion

14

was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves

15

authority to issue the writ in cases where there is no possibility fairminded jurists could

16

disagree that the state court's decision conflicts with this Court's precedents." Id. To put

17

it yet another way:

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20

As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.

21

Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts

22

are the principal forum for asserting constitutional challenges to state convictions." Id. at

23

787. It follows from this consideration that § 2254(d) "complements the exhaustion

24

requirement and the doctrine of procedural bar to ensure that state proceedings are the

25

central process, not just a preliminary step for later federal habeas proceedings." Id.

26

(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

19

27
28

3.

Prejudicial Impact of Constitutional Error

The prejudicial impact of any constitutional error is assessed by asking whether
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the error had "a substantial and injurious effect or influence in determining the jury's

2

verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

3

U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the

4

state court recognized the error and reviewed it for harmlessness). Some constitutional

5

errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.

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Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659

7

(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective

8

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the

9

Strickland prejudice standard is applied and courts do not engage in a separate analysis

10

applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin

11

v. Lamarque, 555 F.3d at 834.

12

III.

Review of Petition

13

A.

14

Petitioner claims that the trial court improperly admitted his prior conviction for

15
16

Claim One: Admission of Prior Gang Related Offenses

voluntary manslaughter.
1.

State Court Decision

17

Petitioner presented this claim by way of direct appeal to the California Court of

18

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

19

appellate court and summarily denied in a subsequent petition for review by the

20

California Supreme Court. (Lodged Docs. 6-7, 9.) Because the California Supreme

21

Court’s opinion is summary in nature, this Court “looks through” that decision and

22

presumes it adopted the reasoning of the California Court of Appeal, the last state court

23

to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3

24

(1991) (establishing, on habeas review, “look through” presumption that higher court

25

agrees with lower court’s reasoning where former affirms latter without discussion); see

26

also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000) (holding federal courts

27

look to last reasoned state court opinion in determining whether state court’s rejection of

28

petitioner’s claims was contrary to or an unreasonable application of federal law under
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1

28 U.S.C. § 2254(d)(1)).

2

In denying Petitioner’s claim, the California Court of Appeal explained:

3

Trial Issues

4

A.

5

Defendants make numerous claims of error concerning the trial
court's evidentiary rulings and related matters. Because many of the
issues involve determinations of relevance and/or probative value versus
prejudicial effect, we first state the general legal principles concerning
those subjects before turning to defendants' specific contentions. We also
state the law applicable to ineffective assistance of counsel, since
defendants raise such claims in the event we find forfeiture of any
substantive issue.

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Evidentiary Rulings and Related Claims

"'Relevant evidence' means evidence, including evidence relevant
to the credibility of a witness or hearsay declarant, having any tendency in
reason to prove or disprove any disputed fact that is of consequence to
the determination of the action." (Evid. Code, § 210.) "'While there is no
universal test of relevancy, the general rule in criminal cases might be
stated as whether or not the evidence tends logically, naturally, and by
reasonable inference to establish any fact material for the prosecution or
to overcome any material matter sought to be proved by the defense.
[Citation.] Evidence is relevant when no matter how weak it may be, it
tends to prove the issue before the jury.' [Citation.]" (People v. Freeman
(1994) 8 Cal.4th 450, 491.)
While all relevant evidence is admissible except as otherwise
provided by statute (Evid. Code, § 351), "[n]o evidence is admissible
except relevant evidence" (id., § 350). We review for abuse of discretion a
trial court's rulings on relevance. (People v. Cole (2004) 33 Cal.4th 1158,
1195.) That court is vested with wide discretion in determining relevance,
but has no discretion to admit irrelevant evidence. (People v. Alexander
(2010) 49 Cal.4th 846, 904.) "[D]iscretion is abused whenever the court
exceeds the bounds of reason, all of the circumstances being considered.
[Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.)

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"Under Evidence Code section 352, the probative value of the
proffered evidence must not be substantially outweighed by the probability
that its admission would create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury. [Citations.]" (People v.
Cole, supra, 33 Cal.4th at p. 1195.) "'The prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence.' [Citations.] 'Rather, the statute uses the word in its
etymological sense of "prejudging" a person or cause on the basis of
extraneous factors.'" (People v. Zapien (1993) 4 Cal.4th 929, 958.)
"Evidence is substantially more prejudicial than probative [citation] if,
broadly stated, it poses an intolerable 'risk to the fairness of the
proceedings or the reliability of the outcome' [citation]." (People v. Waidla
(2000) 22 Cal.4th 690, 724.)

28

"[T]he trial court enjoys broad discretion in assessing whether the

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probative value of particular evidence is outweighed by concerns of undue
prejudice, confusion or consumption of time. [Citation.] Where, as here, a
discretionary power is statutorily vested in the trial court, its exercise of
that discretion 'must not be disturbed on appeal except on a showing that
the court exercised its discretion in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice.
[Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 11241125 (Rodrigues).)

11

Finally, the burden of proving ineffective assistance of counsel is on
the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure
reversal of a conviction upon the ground of ineffective assistance of
counsel under either the state or federal Constitution, a defendant must
establish (1) that defense counsel's performance fell below an objective
standard of reasonableness, i.e., that counsel's performance did not meet
the standard to be expected of a reasonably competent attorney, and (2)
that there is a reasonable probability that defendant would have obtained
a more favorable result absent counsel's shortcomings. [Citations.] 'A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926,
1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687694.)

12

1.

13

17

Dixon contends the trial court committed federal constitutional error
by admitting, for any purpose but especially on the issue of identity,
evidence of two shootings in which he allegedly was involved in 2001. Lee
joins in the argument. Lee acknowledges the evidence was limited to
Dixon, but says the limiting instructions given were not effective. The
People respond that the evidence was properly admitted for the purposes
specified by the trial court, but assuming otherwise, any error was
harmless because Dixon's prior acts were properly before the jury on
another issue.

18

a.

19

Dixon and the prosecution filed dueling motions in limine with
respect to Dixon's prior bad acts. Dixon sought exclusion of any mention
of his September 11, 2001, voluntary manslaughter conviction, and to
bifurcate trial on the prior conviction enhancement allegations. Johnson
and Lee joined in the motion. The People sought admission of Dixon's
prior acts — the March 7, 2001, assault by shooting at several individuals;
and the April 8, 2001, voluntary manslaughter of Joseph Williams —
pursuant to Evidence Code section 1101, subdivision (b). The People
maintained these prior acts were relevant to prove motive, intent, common
design, scheme, plan, and/or identity, and had substantial probative value
for purposes of Evidence Code section 352.

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Dixon's Prior Bad Acts

Background

After argument, an Evidence Code section 402 hearing was held at
which Senior Officer Sherman testified. Sherman related that he had
reviewed the police and probation reports with respect to the March 7 and
April 8, 2001, shootings. On March 7, 2001, two African-American males,
wearing dark clothing, were walking south on Kincaid Street, which was in
Eastside Crip territory. After they passed a specific house, they turned
around, walked back toward that address, produced firearms, and shot at
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several people in the front yard and porch area of the residence. They
then fled. A witness observed that one was limping; from his mannerisms,
she recognized him as Dixon, whom she knew to be a Country Boy Crip.
Sherman found it significant, in formulating his expert opinions,
particularly on motive and intent, that Dixon was a rival gang member who
attempted to shoot other gang members in another gang's territory. In
addition, it was a walk-up shooting.
On April 8, 2001, Joseph "Freeway" Williams, an Eastside Crip
affiliate, was attending a birthday party in the 1900 block of Lotus. Dixon
was also at the party. Williams went to his car to obtain some CD's and
take some pictures. Dixon, wearing a powder blue sweatshirt with the
hood pulled up and tied around his face to hide his facial features, walked
up, produced a firearm from underneath the sweatshirt, and shot Williams
multiple times at close range, killing him. Dixon then fled to a nearby
residence. When he was contacted there later, he was wearing different
clothing. Nine-millimeter shell casings found at the scene matched the
shell casings found at the earlier scene on Kincaid. Dixon was arrested,
entered into a plea bargain for voluntary manslaughter, was sentenced to
11 years in prison, and served six.[fn88]
FN88: The prosecutor represented that charges concerning
the March 7, 2001, incident were dropped as part of the plea
agreement.
Sherman considered it significant to his opinions that it was a walkup shooting, and that Dixon concealed his facial features with a
sweatshirt, and that he used a firearm. In essence, Sherman found this to
be a signature crime. The shooting was motivated by hatred of a rival
gang.
With respect to motive, intent, and common scheme or plan,
Sherman found the 2001 shootings significant with respect to the opinions
he would be giving relative to the gang information and the present
charges. He particularly noted the style in which the offenses were
committed and the fact rival gang members were targeted. The locations
were also significant in terms of whether disrespect was being shown.
Sherman conceded that no one positively identified Dixon, and
neither Lee nor Johnson was identified as a suspect, in either shooting.
Sherman also testified that walk-up shootings now outweighed drive-up
shootings in terms of which was the more commonly seen type of gangrelated shooting. Walk-ups were now the method of choice, with gang
members being told to do walk-ups so as not to inflame people with
innocent bystanders being struck. In Sherman's experience, shootings
involving African-American gangs were either walk-ups or drive-bys.
Sherman also found it not uncommon, in his evaluation of gang-related
shootings, to have identity concealed by means of a hoodie or ball cap or
do-rag.
Counsel for Dixon subsequently argued for exclusion on the
grounds that Dixon was 17 years old at the time of the 2001 shootings, he
was never identified with respect to those shootings although he pled, and
approximately six years separated those shootings from the current
charges. In addition, counsel claimed trial would be prolonged by several
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weeks because, if the 2001 shootings were admitted, he would have to try
those cases as well as the current one. Counsel pointed out that, if the
evidence were excluded, Sherman could still testify Dixon was a gang
member based on his tattoos, and could also testify Dixon had a felony
conviction, without mentioning it was for manslaughter.
Counsel for Lee argued that, given Sherman's testimony about the
number of walk-up shootings outweighing the number of drive-by
shootings, and the fact it was common for people involved in shootings to
conceal their identities, the evidence should not be admissible on the
issue of identity. Counsel further argued the evidence was unduly
prejudicial to Lee, especially in light of the disparity in gang-related
evidence among defendants, and that an admonition would not be
sufficient to prevent a spillover effect. Counsel also argued that allowing
the evidence would create an additional consumption of time. Counsel for
Johnson joined in these comments, and argued that introduction of the
evidence would affect Johnson's ability to have a fair trial.
The People responded by noting that the court had to separately
analyze whether the evidence could come in under Evidence Code
section 1101, subdivision (b), and whether Sherman could testify about
the 2001 incidents as they related to his gang opinions. The prosecutor
argued the 2001 incidents were material, relevant, more probative than
prejudicial, and not merely cumulative.
After further argument, the court turned to whether the proffered
evidence should be admitted, under Evidence Code section 1101,
subdivision (b), as to Dixon. The court found the prior incidents material on
the issues of intent, motive, identity, knowledge, common plan, and modus
operandi, and relevant to prove motive, intent, common plan, design, or
scheme, and identity.
Turning to the Evidence Code section 352 analysis, the court found
relevance because the prior walk-up shootings were characteristic for
gang purposes, and, the court stated, "also it's relevant because it shows
someone who was willing to commit violent crimes or murder because of a
dislike of a person from a different gang, or people that occupy residences
in the defendant's non gang territory, rival's territory, if you will." The court
found the probative value increased because evidence of the prior
incidents had a source independent from evidence of the charged
offenses, and it further found no remoteness. The court reasoned the jury
would learn of Dixon's gang affiliation independent of evidence of the prior
shootings, and found the evidence of the uncharged acts no stronger or
more inflammatory than the current charges. Accordingly, it found
substantial probative value that outweighed any prejudicial effect. The
court stated this finding was based, in part, on the fact the limiting
instructions could guide the jury concerning against whom they were to
consider the evidence.[fn89]
FN89: As a result of the court's ruling, counsel for Dixon
withdrew his request for bifurcation of the prior conviction
allegations.
During trial, the prosecution called a number of witnesses
concerning the 2001 shootings. The first was Otha Ford, who was with
Joseph Williams when Williams was shot on April 8, 2001. Partway
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through direct examination, counsel for Lee and Johnson both raised
relevance objections with respect to their clients. After asking the date of
the shooting and being told it occurred in 2001, the trial court overruled the
objections. When the prosecutor asked his next question, counsel for Lee
again objected on relevance grounds. The court asked the prosecutor to
clarify the relevance to the individual defendant, whereupon the
prosecutor reminded the court of the earlier motions, and that this
evidence concerned Dixon's prior offenses. The court then sustained the
objection. When Lee's counsel asked for a limiting instruction or
explanation to the jury, the court asked the prosecutor, "This is evidence
that you're saying only goes and applies to Mr. Dixon only, correct?" When
the prosecutor confirmed that was correct, the court told the jury: "That will
be the order of the Court. [¶] My understanding, ladies and gentlemen, is
this evidence is only offered, as I understand it, by the prosecution in
regard to Defendant Mr. Dixon only."
The next witness concerning the 2001 shootings was Byron Allen.
At the outset of his testimony, Lee's attorney asked for, and received, an
admonition that jurors could only consider the testimony as to Dixon.
The following day, a stipulation between the People and Dixon was
read to the jury. In it, they agreed that on August 13, 2001, Dixon pled no
contest to the voluntary manslaughter of Joseph Williams. The parties
further stipulated that the no contest plea was properly deemed to be a
guilty plea under the law, Dixon was sentenced to prison, his sentence
was for six years, and he was discharged from prison on or about March
4, 2007. The court informed the jury that the facts contained in the
stipulation must be accepted as conclusively proven, and that the
stipulation had to do only with Dixon and not the other two defendants.
The prosecutor then called Bakersfield Police Officer Grove, whose
testimony pertained to the Williams shooting. At the outset of his
testimony, counsel for Lee objected on relevance grounds, and the court
confirmed with the prosecutor that the evidence was being offered only
against Dixon.
During a subsequent discussion of whether counsel for Dixon could
present evidence that Dixon was not involved in the prior shootings
despite the no contest plea, counsel for Lee reiterated his objection to
admission of the other crimes evidence. Counsel noted the court itself was
momentarily confused concerning what shooting was being discussed,
and he expressed concern about spillover prejudice once the People
established that Lee had been friends with Dixon for some time. Counsel
reiterated that there were insufficient similarities between the prior acts
and present offenses so as to prove identity in the present case, and that
the People did not need the prior acts evidence to establish motive.
Counsel for Johnson joined in the comments. The prosecutor responded
in part that the evidence was going to come in anyway, because it went to
the gang issue, which in turn related to the entire case. After further
argument, the court determined that if another cautionary instruction was
given that limited the evidence to Dixon, then the probative value would
outweigh any prejudicial impact. Accordingly, the court directed the
prosecutor to inform the court, when a witness was called, if the testimony
was being offered solely against Dixon, at which point the court would
admonish the jury accordingly.

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The prosecution's next witness concerning the events of 2001 was
Officer Carruesco. At the outset of his testimony, the prosecutor informed
the court that the testimony was being offered only as to Dixon. The court
told the jury: "And ladies and gentlemen, we gave you an earlier
instruction that during the trial oftentimes evidence comes in for a limited
purpose, and this is one of those occasions, and we ask you to follow that
jury instruction that we have read to you and we will read again at the end
of the case." The jury was reminded, in conjunction with the testimony of
the prosecution's next two witnesses to the 2001 events, that the evidence
was limited to Dixon.
The People then called Sergeant Jehle to testify as a gang expert
with respect to the 2001 shootings.[fn90] In part, Jehle described police
contacts with, arrests of, and incidents involving Dixon that took place
between 1998 and April 9, 2001. Midway through Jehle's testimony,
counsel for Lee objected to a photograph on relevance and Evidence
Code section 352 grounds with respect to Lee. Counsel for Johnson
joined. When the court asked the prosecutor whether the evidence was
coming in solely in regard to Dixon, the prosecutor responded, "This
photograph is, yes, your Honor." The court then admonished the jury
accordingly, whereupon counsel for Lee clarified that Jehle's testimony
was also for that purpose. The court confirmed that understanding with the
prosecutor.
FN90: Much of Jehle's testimony concerning the history of
the Eastside and Country Boy Crips and gangs in general
was repeated by Senior Officer Sherman when he testified
as a gang expert concerning the charged offenses.
Jehle ultimately opined that on April 8, 2001, Williams was an
active member of the Eastside Crips criminal street gang, and that in
March and April 2001, Dixon was an active member of the Country Boy
Crips criminal street gang. By means of hypothetical questions, Jehle
further opined that the March and April 2001 shootings were committed for
the benefit of, at the direction of, or in association with the Country Boy
Crips criminal street gang. At the behest of Lee's attorney, the court
clarified that the hypotheticals related solely to Dixon.
The prosecutor called Supervising Criminalist Gregory Laskowski to
testify with respect both to evidence collected in conjunction with the
current charges, and also with respect to evidence collected in conjunction
with the 2001 shootings. The prosecutor clarified which evidence related
only to Dixon.
Laskowski was the final witness called by the prosecution with
respect to the 2001 shootings. The subject was briefly broached by
various parties during the examination of Dupree Jackson. As previously
described, Sherman discussed the shootings in conjunction with his gang
testimony, and Dixon took the stand and denied involvement in the
shootings.
During summation, the prosecutor argued to the jury that the way
the Williams killing was committed was very similar to the McNew Court
shootings, in that both were gang motivated, both were walk-up shootings,
both took place in gang territory, the victims in both were in the front yard,
the shooter in both was wearing a hooded sweatshirt, the shooter in both
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shot the victims several times at point-blank range, the intended victims in
both were Stroller Boy Eastside Crips, the shooter in both ran back the
way he had come after the shootings, and there was a clothing change as
part of the scheme in both.[fn91] The prosecutor argued the prior acts
could be used to determine Dixon's identity, intent, motive, and common
plan and scheme with respect to the McNew Court shootings, but warned
that the evidence could not be used to show Dixon was a bad person or
the type likely to commit crimes. The prosecutor also discussed the
relevance of the prior crimes to the gang issues and the prior conviction
allegations. Dixon's attorney countered that the shootings were six years
apart, there are a lot of walk-up shootings and shootings that involve the
wearing of a hoodie, and there were differences between the crimes.
FN91: Insofar as the Williams shooting is concerned, this
appears to be a reference to the fact that, when contacted
shortly afterward, Dixon was not wearing a hooded
sweatshirt.
In pertinent part, the trial court instructed the jury, pursuant to
CALCRIM No. 303:
"During the trial certain evidence was admitted for a limited
purpose. You may consider that evidence only for that
purpose and for no other. [¶] I instructed you during the trial
that certain evidence was admitted only against certain
defendants. You must not consider that evidence against
any other defendant."
Specifically with respect to the evidence admitted pursuant to
Evidence Code section 1101, subdivision (b), jurors were told, pursuant to
CALCRIM No. 375:
"The People presented evidence that the defendant Mr.
Joseph Kevin Dixon allegedly committed the offenses of
voluntary manslaughter and/or shooting at an inhabited
dwelling house, both of which are alleged to have occurred
in 2001 that were not charged in this case. You may
consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant, in fact,
committed the uncharged offenses. Proof by a
preponderance of evidence is a different burden of proof
than proof beyond a reasonable doubt.
"A fact is proved by a preponderance of evidence if you
conclude that it is more likely than not that the fact is true. If
the People have not met this burden, you must disregard this
evidence entirely.
"If you decide that the defendant committed the uncharged
offenses you may, but are not required to, consider that
evidence for the limited purpose of deciding whether or not
the defendant was the person who committed the offenses
alleged in this case or the defendant acted with the intent to
kill or the defendant had a motive to commit the offenses
alleged in this case or the defendant had a plan or scheme
to commit the offenses alleged in this case.
67

1

"In evaluating this evidence, consider the similarity or lack of
similarity between the uncharged offenses and the charged
offenses. Do not consider this evidence for any other
purpose other than the credibility of defendant Mr. Joseph
Dixon. Do not conclude from this evidence that the
defendant has a bad character or is disposed to commit
crime.

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"If you conclude that said defendant committed the
uncharged offenses, that conclusion is only one factor to
consider along with all of the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of the
crimes charged or that the enhancements or allegations
have been proved. The People must still prove each charge,
enhancement, and allegation beyond a reasonable doubt."

6
7
8
9

b.

Analysis

10

Evidence Code section 1101 provides, in pertinent part:

11

"(a) Except as provided [in statutes not involved here],
evidence of a person's character or a trait of his or her
character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.

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"(b) Nothing in this section prohibits the admission of
evidence that a person committed a crime, ... when relevant
to prove some fact (such as motive, ... intent, ... plan, ... [or]
identity ...) other than his or her disposition to commit such
an act."
"Evidence of uncharged crimes is admissible to prove identity,
common design or plan, or intent only if the charged and uncharged
crimes are sufficiently similar to support a rational inference of identity,
common design or plan, or intent. [Citation.] On appeal, the trial court's
determination of this issue, being essentially a determination of relevance,
is reviewed for abuse of discretion. [Citations.]" (People v. Kipp (1998) 18
Cal.4th 349, 369.)
"'The admissibility of other crimes evidence depends on (1) the
materiality of the facts sought to be proved, (2) the tendency of the
uncharged crimes to prove those facts, and (3) the existence of any rule or
policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg
(2008) 45 Cal.4th 1, 22.) "'Because substantial prejudice is inherent in the
case of uncharged offenses, such evidence is admissible only if it has
substantial probative value.' [Citation.]" (Id. at p. 23.)
"When the prosecution seeks to prove the defendant's identity as
the perpetrator of the charged offense with evidence he had committed
uncharged offenses, the admissibility of evidence of the uncharged
offenses turns on proof that the charged and uncharged offenses share
sufficient distinctive common features to raise an inference of identity."
(People v. Lindberg, supra, 45 Cal.4th at p. 23.) "The greatest degree of
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similarity is required for evidence of uncharged misconduct to be relevant
to prove identity. For identity to be established, the uncharged misconduct
and the charged offense must share common features that are sufficiently
distinctive so as to support the inference that the same person committed
both acts. [Citation.] 'The pattern and characteristics of the crimes must be
so unusual and distinctive as to be like a signature.' [Citation.]" (People v.
Ewoldt (1994) 7 Cal.4th 380, 403, italics added.)
The requisite degree of similarity was not established in the present
case. The inference of identity "need not depend on one or more unique or
nearly unique common features; features of substantial but lesser
distinctiveness may yield a distinctive combination when considered
together. [Citation.]" (People v. Miller (1990) 50 Cal.3d 954, 987.)
Nevertheless, "'"[t]he marks common to the charged and uncharged
offenses, considered singly or in combination, [must] logically operate to
set the charged and uncharged offenses apart from other crimes of the
same general variety and, in so doing, tend to suggest that the perpetrator
of the uncharged offenses was the perpetrator of the charged offenses."
[Citation.]' [Citation.]" (Ibid.)
A walk-up shooting of a gang member (or someone associated with
or believed to be a gang member), perpetrated in gang territory by an
African-American male wearing a hooded sweatshirt, may be sufficiently
distinctive to identify the shooter as a gang member — perhaps even as a
Country Boy Crip — but, especially in light of expert testimony that walkup shootings are now more common than drive-by shootings, it is not
sufficiently distinctive to identify the shooter as a specific gang member.
(See People v. Balcom (1994) 7 Cal.4th 414, 424-425 [where uncharged
act relevant to show identity, "highly unusual and distinctive nature" of
charged and uncharged offenses "virtually eliminates" possibility anyone
but defendant committed charged offense].) Accordingly, the trial court
erred in admitting evidence of the 2001 shootings on the issue of, and
instructing jurors they could consider the evidence for the purpose of
determining, whether Dixon perpetrated charged offenses. (See, e.g.,
People v. Rivera (1985) 41 Cal.3d 388, 392-393 [similarities that both
crimes occurred on Friday night at approximately 11:30 p.m., took place at
convenience markets on street corners in Rialto outside of which two or
three people were seen standing before the crimes, involved three
perpetrators and getaway vehicles, and for which defendant presented
alibi defense, not sufficiently unique or distinctive so as to indicate
defendant perpetrated both crimes], disapproved on another ground in
People v. Lessie (2010) 47 Cal.4th 1152, 1168, fn. 10.)
A lesser degree of similarity is required to prove the existence of a
common scheme or plan. (People v. Lindberg, supra, 45 Cal.4th at p. 23.)
"Evidence of a common design or plan ... is not used to prove the
defendant's intent or identity but rather to prove that the defendant
engaged in the conduct alleged to constitute the charged offense."
(People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. omitted.) "[I]n establishing
a common design or plan, evidence of uncharged misconduct must
demonstrate 'not merely a similarity in the results, but such a concurrence
of common features that the various acts are naturally to be explained as
caused by a general plan of which they are the individual manifestations.'
[Citation.]" (Id. at p. 402.) "To establish the existence of a common design
or plan, the common features must indicate the existence of a plan rather
than a series of similar spontaneous acts, but the plan thus revealed need
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not be distinctive or unusual.... [E]vidence that the defendant has
committed uncharged criminal acts that are similar to the charged offense
may be relevant if these acts demonstrate circumstantially that the
defendant committed the charged offense pursuant to the same design or
plan he or she used in committing the uncharged acts. Unlike evidence of
uncharged acts used to prove identity, the plan need not be unusual or
distinctive; it need only exist to support the inference that the defendant
employed that plan in committing the charged offense. [Citation.]" (Id. at p.
403.)
We have been unable to locate any case in which the inference of a
common scheme or plan has been found to be proper based on the
presence of so few, and such mundane, common features, especially
when those features appear to be common to the type of crime at issue.
(Contrast, e.g., People v. Foster (2010) 50 Cal.4th 1301, 1329; People v.
Carter (2005) 36 Cal.4th 1114, 1148-1149; People v. Balcom, supra, 7
Cal.4th at p. 424; People v. Ewoldt, supra, 7 Cal.4th at pp. 394-398, 403 &
cases cited therein.) In our view, the common features in the case before
us are insufficient to indicate the existence of a scheme or plan rather than
a series of similar spontaneous acts. Accordingly, the trial court erred in
admitting evidence of the 2001 shootings on the issue of, and instructing
jurors they could consider the evidence for the purpose of determining,
whether Dixon had a plan or scheme to commit the charged offenses.
"The least degree of similarity is required to establish relevance on
the issue of intent. [Citation.] For this purpose, the uncharged crimes need
only be 'sufficiently similar [to the charged offenses] to support the
inference that the defendant "'probably harbor[ed] the same intent in each
instance.' [Citations.]"' [Citation.]" (People v. Kipp, supra, 18 Cal.4th at p.
371.) "'In proving intent, the act is conceded or assumed; what is sought is
the state of mind that accompanied it.' [Citation.]" (People v. Ewoldt,
supra, 7 Cal.4th at p. 394, fn. 2.)
We find ample similarity between the charged and uncharged
offenses so as to render the 2001 shootings relevant with respect to
intent. The same is true with respect to motive. Moreover, "the
probativeness of other-crimes evidence on the issue of motive does not
necessarily depend on similarities between the charged and uncharged
crimes, so long as the offenses have a direct logical nexus. [Citations.]"
(People v. Demetrulias (2006) 39 Cal.4th 1, 15.) Here, the logical nexus is
hatred of rival gang members; the motive is, in turn, relevant to show
intent to kill and to benefit the perpetrator's gang, as well as premeditation.
(See ibid.)

27

Our inquiry does not end here, however. "Although we have
concluded that evidence of [Dixon's] uncharged criminal conduct is
relevant to establish [intent and motive], in order to be admissible such
evidence 'must not contravene other policies limiting admission, such as
those contained in Evidence Code section 352. [Citations.]' [Citation.] We
thus proceed to examine whether the probative value of the evidence of
[Dixon's] uncharged offenses is 'substantially outweighed by the
probability that its admission [would] ... create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.' [Citation.]"
(People v. Balcom, supra, 7 Cal.4th at pp. 426-427.)

28

"Evidence of uncharged offenses 'is so prejudicial that its admission

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requires extremely careful analysis. [Citations.]' [Citations.]" (People v.
Ewoldt, supra, 7 Cal.4th at p. 404.) "'Evidence is prejudicial within the
meaning of Evidence Code section 352 if it "'uniquely tends to evoke an
emotional bias against a party as an individual'" [citation] or if it would
cause the jury to "'"prejudg[e]" a person or cause on the basis of
extraneous factors'" [citation].' [Citation.]" (People v. Foster, supra, 50
Cal.4th at p. 1331.) "'As Wigmore notes, admission of this evidence
produces an "over-strong tendency to believe the defendant guilty of the
charge merely because he is a likely person to do such acts." [Citation.] It
breeds a "tendency to condemn, not because he is believed guilty of the
present charge, but because he has escaped unpunished from other
offences...." [Citation.] Moreover, "the jury might be unable to identify with
a defendant of offensive character, and hence tend to disbelieve the
evidence in his favor." [Citation.]' [Citation.] Due to these inherent risks,
'uncharged offenses are admissible only if they have substantial probative
value.' [Citations.]" (Ibid.)
In light of the risks, "admission of other crimes evidence cannot be
justified merely by asserting an admissible purpose. Such evidence may
only be admitted if it '(a) "tends logically, naturally and by reasonable
inference" to prove the issue upon which it is offered; (b) is offered upon
an issue which will ultimately prove to be material to the People's case;
and (c) is not merely cumulative with respect to other evidence which the
People may use to prove the same issue.' [Citation.]" (People v. Guerrero
(1976) 16 Cal.3d 719, 724.)
Here, Dixon's plea of not guilty and denial of the special allegations
put in issue all elements of the charged offenses and alleged
enhancements. (People v. Steele (2002) 27 Cal.4th 1230, 1243.) Although
he sought to limit the admissibility of the other crimes evidence by
stipulating to certain issues, the People were not required to accept the
proffered stipulations (People v. Scott (2011) 52 Cal.4th 452, 471), but
rather were entitled to prove their case (Steele, supra, at p. 1243).
Nevertheless, motive and intent were not seriously contested with
respect to the charged offenses themselves. There was no real question
but that whoever shot the victims did so with an intent to kill and
premeditation, and was motivated by hatred of rival gang members. (See
People v. Ewoldt, supra, 7 Cal.4th at p. 406; People v. Bigelow (1984) 37
Cal.3d 731, 748.) This being the case, the evidence of the 2001 shootings
did not have substantial probative value that outweighed its inherent
prejudice. (See People v. Lopez (2011) 198 Cal.App.4th 698, 715.) This is
especially so in light of the prejudicial impact of the other-crimes evidence.
That evidence consisted not merely of a property crime or even an
assault, but a homicide and a shooting that could easily have resulted in a
homicide. Only the homicide resulted in a criminal conviction and prison
term; although it appears charges arising from the March 2001 shooting
were dismissed as part of the plea agreement with respect to the
homicide, jurors may well have felt Dixon was not punished for the
nonfatal shooting. Moreover, despite the fact Dixon's legal guilt of the
homicide had been conclusively determined by his manslaughter
conviction, because he never pled to the March 2001 shooting and
testified he did not actually commit the homicide, the jury's attention
necessarily was diverted to a determination whether Dixon committed the
uncharged offenses. (Compare People v. Balcom, supra, 7 Cal.4th at p.
427.)
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"Simply put, evidence of uncharged acts cannot be used to prove
something that other evidence showed was beyond dispute; the prejudicial
effect of the evidence of the uncharged acts outweighs its probative value
to prove intent [and motive] as it is cumulative regarding [those] issue[s].
[Citations.]" (People v. Lopez, supra, 198 Cal.App.4th at p. 715.)
Accordingly, we hold that the trial court abused its discretion by admitting
evidence of the 2001 shootings, and allowing the jury to consider it, for
any purpose with respect to the substantive offenses of the charged
murders and attempted murders.
The People say any error was harmless because even if Dixon's
prior offenses were inadmissible under Evidence Code section 1101, they
nevertheless were admissible with respect to, in part, the gang charge and
enhancements. We agree the prior offenses were admissible for those
purposes. (See People v. Tran (2011) 51 Cal.4th 1040, 1046-1047, 1048;
People v. Williams (2009) 170 Cal.App.4th 587, 612-613.) We disagree,
however, that admissibility with respect to one purpose renders harmless
an error in allowing evidence to be considered for another, improper
purpose. We presume jurors follow limiting instructions (People v. Guerra
(2006) 37 Cal.4th 1067, 1115, disapproved on another ground in People v.
Rundle (2008) 43 Cal.4th 76, 151; but see People v. Gibson (1976) 56
Cal.App.3d 119, 130), and so would not have considered the uncharged
offenses in determining, for example, Dixon's identity as one of the
perpetrators of the McNew Court shootings had a proper limiting
instruction been given.
We caution prosecutors against over proving their cases and urge
trial courts carefully to assess especially inflammatory evidence to
determine whether it is unnecessarily cumulative. (See People v. Tran,
supra, 51 Cal.4th at p. 1049; People v. Williams, supra, 170 Cal.App.4th at
pp. 610-611.) Nevertheless, we do not believe admission of the othercrimes evidence, standing alone, gave rise to a deprivation of Dixon's right
to a fair trial such that the error must be assessed under the harmlessbeyond-a-reasonable-doubt standard of Chapman v. California (1967) 386
U.S. 18, 24 (Chapman). (Compare People v. Foster, supra, 50 Cal.4th at
p. 1335 & People v. Williams, supra, 170 Cal.App.4th at pp. 612-613 with
People v. Albarran (2007) 149 Cal.App.4th 214, 227-232.) Assessing such
errors under the standard of People v. Watson (1956) 46 Cal.2d 818, 836
(Watson), as is appropriate (People v. Malone (1988) 47 Cal.3d 1, 22), we
find no cause for reversal: It is not reasonably probable a result more
favorable to Dixon would have resulted absent the errors.
In reaching this conclusion, we reject the notion that CALCRIM No.
375, as given by the trial court, was constitutionally defective because it
permitted jurors to draw irrational inferences from the other-crimes
evidence. (See Yates v. Evatt (1991) 500 U.S. 391, 402, fn. 7,
disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62,
72, fn. 4; Francis v. Franklin (1985) 471 U.S. 307, 314-315; People v.
Castro (1985) 38 Cal.3d 301, 313.) The court instructed the jury in
accordance with its evidentiary rulings. That its rulings were erroneous
under state law does not somehow transform the resulting instructional
error into error under the federal Constitution. Although the jury should not
have been permitted to consider the other-crimes evidence for nongangrelated purposes, the inferences permitted by the instruction were not
irrational. Accordingly, the instruction was not constitutionally deficient.
72

(See People v. Moore (2011) 51 Cal.4th 1104, 1130-1133.)

1

We further conclude the trial court's instructions and the
prosecutor's statements made it clear to jurors that they could not use the
evidence of the 2001 shootings against anyone but Dixon with respect to
the substantive charges. Lee has no cause to complain about Sherman's
consideration of the prior crimes in forming his opinions concerning the
charged offenses.

2
3
4
5

People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 219-252.

6

2.

Analysis

7

Evidence erroneously admitted warrants habeas relief only when it results in the

8

denial of a fundamentally fair trial in violation of the right to due process. See Briceno v.

9

Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) citing Estelle v. McGuire, 502 U.S. 62, 67-

10

68 (1991). "[I]t is not the province of a federal habeas court to reexamine state-court

11

determinations on state-law questions." See Estelle at 67-68. In conducting habeas

12

review, a federal court is limited to deciding whether a conviction violated the

13

Constitution, laws, or treaties of the United States. Id. The court's habeas powers do not

14

allow for the vacatur of a conviction "based on a belief that the trial judge incorrectly

15

interpreted the California Evidence Code in ruling" on the admissibility of evidence. Id. at

16

72.

17

The United States Supreme Court has expressly left open the question of whether

18

the admission of propensity evidence violates due process. See Estelle, 502 U.S. at 75,

19

n.5. In Estelle, the Supreme Court expressly refused to determine whether the

20

introduction of prior crimes evidence to show propensity to commit a crime would violate

21

the Due Process Clause. Id. ("Because we need not reach the issue, we express no

22

opinion on whether a state law would violate the Due Process Clause if it permitted the

23

use of 'prior crimes' evidence to show propensity to commit a charged crime."); see also

24

Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) ("Estelle expressly left this issue

25

an 'open question'"); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008). Because

26

the Supreme Court has specifically declined to address whether the introduction of

27

propensity evidence violates due process, Petitioner lacks the clearly established federal

28

law necessary to support his claims. Id.; see also Mejia v. Garcia, 534 F.3d 1036, 104673

1

47 (9th Cir. 2008) (relying on Estelle and Alberni and concluding that the introduction of

2

propensity evidence under California Evidence Code § 1108 does not provide a basis for

3

federal habeas relief, even where the propensity evidence relates to an uncharged

4

crime); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court

5

"has not yet made a clear ruling that admission of irrelevant or overtly prejudicial

6

evidence constitutes a due process violation sufficient to warrant issuance of the writ.").

7

Accordingly, the state courts' rejection of Petitioner's claim could not have been

8

"contrary to, or an unreasonable application of, clearly established" United States

9

Supreme Court authority, since no such "clearly established" Supreme Court authority

10

exists. 28 U.S.C. § 2254(d)(1).

11

Nevertheless, there can be habeas relief for the admission of prejudicial evidence

12

if the admission was fundamentally unfair and resulted in a denial of due process.

13

Estelle, 502 U.S. at 72; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Jeffries v.

14

Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993); Gordon v. Duran, 895 F.2d 610, 613 (9th

15

Cir.1990). Constitutional due process is violated if there are no permissible inferences

16

that may be drawn from the challenged evidence. Jammal v. Van de Kamp, 926 F.2d

17

918, 919-20 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise

18

more than one inference, some permissible, some not." Id. at 920. "A habeas petitioner

19

bears a heavy burden in showing a due process violation based on an evidentiary

20

decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

21

Here, the California Court of Appeal found that the evidence was properly

22

admitted to prove Petitioner’s intent in committing the charged crimes and to allow the

23

gang expert to determine whether Petitioner was a member of a street gang at the time

24

of the offense. Federal law holds that evidence of gang affiliation is admissible when it is

25

relevant to a material issue in the case. United States v. Easter, 66 F.3d 1018, 1021 (9th

26

Cir. 1995) (citing United States v. Abel, 469 U.S. 45, 49 (1984) (finding gang evidence

27

admissible to show bias)). The gang evidence was introduced to establish permissible

28

inferences that were essential to the prosecution's theory. See Jammal, 926 F.2d at 919.
74

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Even though the propensity evidence was found inadmissible to prove identity or intent,

2

the jury still would have heard the evidence that Petitioner had fired at an occupied

3

building located in a rival gang territory in March 2001, and had fatally shot a rival gang

4

member in his gang’s territory in April 2001, for the limited purpose of proving “the gang

5

charge and enhancements.” People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at

6

249.

7

Even if the evidence was admitted in error (as assumed by the California Court of

8

Appeal), Petitioner is only entitled to relief if the error had "a substantial and injurious

9

effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623; Fry v.

10

Pliler, 551 U.S. at 121-22. The state appellate court concluded that the “properly

11

admitted evidence, while primarily circumstantial, was overwhelming as to each of the

12

three defendants.” People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 546.

13

Particular facts supporting Petitioner’s guilt include: Petitioner’s cell phone was left at the

14

McNew Court crime scene; cell phone tower records placed that phone, along with fellow

15

gang member Lee’s phone, in the McNew Court area for a half hour before the shooting;

16

the timing of calls between Petitioner and Lee’s phone was consistent with Petitioner

17

being the shooter and Lee the getaway driver; Petitioner confessed his involvement with

18

the McNew Court murders to fellow gang member “Tank” Jackson; and Petitioner

19

implicitly admitted his involvement in the McNew Court shooting when apologizing to

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Eastside Crip member Othelon explaining that he did not know the shooting occurred at

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Othelon’s aunt’s house.

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Similarly, Petitioner, along with fellow gang members Lee and Johnson, generally

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matched the description of the assailants on Planz Road, and Dixon admitted his

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involvement in the shooting to Johnson’s girlfriend Agustin. Also, “Tank” Jackson gave

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an eyewitness account of the conspiracy among Petitioner, Johnson, and Lee, to murder

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“Fume” Taylor, which was further corroborated by records from Lee’s cell phone. Thus,

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there was significant evidence indicating Petitioner was involved in the crimes. The state

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court's erroneous admission of prior acts for certain purposes did not render Petitioner's
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trial fundamentally unfair or violate his due process rights. Even if much of the evidence

2

was circumstantial, such as cell phone records placing Petitioner in the vicinity of the

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shootings at the time they occurred, or Agustin’s detailed testimony regarding the activity

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and statements of Petitioner and his co-defendants, the evidence, when viewed in its

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entirety, created a strong case against Petitioner. It is unlikely that the admission of

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Petitioner’s prior convictions had a substantial and injurious effect or influence in

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determining the jury's verdict.

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Accordingly, the Court cannot find the rejection of Petitioner's claim regarding the

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admission of his prior criminal acts to be unreasonable. See 28 U.S.C. § 2254(d). The

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California Court of Appeal decision denying this claim was not contrary to clearly

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established Supreme Court precedent and Petitioner is not entitled to habeas relief.
Claim Two – Admission of Agustin’s Hearsay Testimony

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B.

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Petitioner contends the trial court erred in allowing Agustin’s testimony relaying

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co-defendant’s Johnson’s out-of-court statements.

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1.

State Court Decision

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Petitioner presented this claim by way of direct appeal to the California Court of

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Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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appellate court and summarily denied in subsequent petition for review by the California

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Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

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opinion is summary in nature, this Court "looks through" that decision and presumes it

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adopted the reasoning of the California Court of Appeal, the last state court to have

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issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

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In denying Petitioner's claim, the Fifth District Court of Appeal explained:

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3.

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Lee and Dixon raise claims of error with respect to admission of
certain portions of Sara Agustin's testimony. Dixon, joined by Lee, says
the trial court's erroneous admission of Agustin's testimony concerning
Johnson's statements inculpating his codefendants, violated their rights to
due process and a fundamentally fair trial. The People say the testimony
was properly admitted against all three defendants and, assuming some
error under state law, there was no due process violation. Lee, joined by

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Sara Agustin's Testimony

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Dixon, faults the trial court for permitting Agustin to testify that she had
discussed Lee's gang role and activities with Lee's girlfriend. The People
say this evidence was properly admitted solely against Johnson. We
address each claim in turn.

3

a.

Johnson's statements inculpating codefendants

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1.

Background

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The People moved, in limine, to admit statements of Johnson and
Dixon against all three defendants as declarations against penal interest
pursuant to Evidence Code section 1230. In pertinent part, the People
pointed to statements made by Johnson to Agustin concerning the
incidents in which Lee's car and Lee were shot, and the charged
shootings. Dixon and Lee moved to exclude anything Johnson allegedly
told Agustin relating to either of them, asserting declarations against penal
interest could be admitted only against the declarant, and that the
proffered evidence was inadmissible under the federal Constitution.

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The prosecutor excerpted, from Agustin's grand jury testimony and
law enforcement interviews, each statement proposed for use at trial.
Following a lengthy argument, the court made rulings concerning the
various categories of statements. Agustin's testimony is set out in the
statement of facts, ante. We recount here the main statements to which
Dixon and Lee now object, and the trial court's related rulings.[fn94]
FN94: Because the People appropriately do not claim
forfeiture based on lack of or insufficient objection, for the
most part we do not include any objections and rulings made
when Agustin actually testified to the statements. Counsel
for Lee and Dixon unsuccessfully renewed their objections
and motions to exclude midway through Agustin's direct
examination. They were granted a continuing objection to
the evidence.
Our analysis with respect to any other statements made by
Johnson to Agustin implicating Lee and/or Dixon is the same as with
respect to the statements we identify here.
• Johnson told Agustin that Dixon and Lee were Country Boy Crips. (This
was admitted against Johnson as an admission, and against Dixon and
Lee under the coconspirator exception to the hearsay rule.)
• Lee discussed with Johnson, in Agustin's presence, Lee's car getting
shot. Lee said he and Johnson went to a location on Pacheco Road to buy
some marijuana, and they were shot at by some individuals. Lee's black
vehicle was shot many times. He and Johnson were both angry, and
Johnson said they needed to go back and retaliate. Johnson and Lee
discussed how they needed to retaliate. Lee said he submitted a damage
claim to his insurance company, but regretted doing so because the
insurance company required a police report, and that was how the police
department found out about the shooting. (These statements were
admitted, during in limine motions, against Johnson and Lee as
declarations against interest. At the time Agustin testified, they were also
admitted against Dixon with respect to counts nine (conspiracy) and
eleven (active participation in a criminal street gang).)
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• Lee came to Agustin's house with his arm bandaged. Speaking to
Agustin and Johnson, he said he and Johnson went back to retaliate for
the initial shooting, and parked off Pacheco Road so their vehicle would
not be spotted. Johnson said they then started walking toward the location
where they thought the individuals lived. Lee said as they were walking,
they spotted a vehicle driving toward them. In it were the individuals who
had shot Lee's vehicle. These people now began to shoot toward Lee and
Johnson. Johnson said that he pulled out his gun and went to fire, but it
jammed. He and Lee then ran in different directions. Lee said he jumped
over a fence and it broke. Agustin already knew Lee had been shot,
because Johnson had told her the same story about what had happened
when he said he wanted to go with Agustin to visit Lee at the hospital.
(These statements were admitted, during in limine motions, against
Johnson and Lee as declarations against interest. At the time Agustin
testified, they were also admitted against Dixon with respect to counts
nine and eleven.)
• Johnson gave Agustin some clothes to destroy. He said that a couple of
days earlier, he and Lee had driven to a location off of Monterey Street, by
the canal. Lee was driving and parked in an alley. Johnson got out of the
vehicle, put on a mask, walked to the front of a residence where a couple
of individuals were sitting, walked up to one of them, and began shooting.
Johnson said that Lee wanted to go and retaliate for the shooting on
Pacheco Road, but he could not shoot the gun himself because of his
injuries, so Johnson had to shoot on his behalf. (These statements were
admitted against Johnson and Lee as declarations against interest.)
• Johnson and Agustin were lying in bed. Johnson told her that he, Dixon,
and Lee had driven to a certain location. They had parked the car where
they could watch a particular vehicle. Dixon and Lee stayed in the car,
while Johnson got out, approached, and started shooting inside the
vehicle. He could not see inside, but thought someone was there. (These
statements were admitted against all three defendants as declarations
against interest.)
• Agustin overheard a phone call Johnson got from Dixon. Johnson said
Dixon was very upset at him because he had left the clothing that he was
wearing at the shooting, and inside the coat pocket was Dixon's cell
phone. The police had found the items and were harassing Dixon. (These
statements were admitted against all three defendants as declarations
against interest.)
• Agustin saw Johnson, Dixon, Lee, and Goo sitting on the floor at
Dreenie's house, with a bunch of money and some marijuana. All four
were talking about how they had robbed Reese; they were splitting the
money among themselves. (These statements were variously admitted
against all three defendants as admissions, declarations against interest,
adoptive admissions, and coconspirator statements.)
• Johnson told Agustin that he and Dixon found out where the father of the
person who shot Johnson's friend lived. Johnson and Dixon drove to the
location, which was up in the bluffs, got out of the car, and started walking
toward the house. When a vehicle approached and the individuals inside
made eye contact with them, Johnson and Dixon got scared and
pretended they were tying their shoes. (These statements were admitted
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against all three defendants as declarations against interest.)[fn95]
FN95: Although Agustin testified at trial that she did not
recall Johnson saying Lee was with Dixon and him, the
assumption during the in limine hearing was that she would
include Lee, based on her grand jury testimony.

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• Johnson drove Agustin to an intersection on Real Road and showed her
a camera on the signal light. He said he had done a drive-by shooting at
that intersection the previous Saturday. He said Lee was driving, Dixon
was in the passenger seat, and Johnson was in the back seat. Johnson
said he saw an individual walking on the sidewalk, and he stuck his head
out of the car and fired. He was concerned that the camera may have
recorded the incident. (These statements were admitted against all three
defendants as declarations against interest.)
• Johnson took Lee and Dixon to see the camera on the light post. Agustin
was with them. Johnson said that if the camera was actually recording, it
would be bad because it would show that Lee was driving, the vehicle and
the license plate, and that Dixon was in the front seat. Dixon responded
that if it was going to show that, it was also going to show when Johnson
put his head out of the window and started firing. (These statements were
variously admitted against all three defendants as declarations against
interest, admissions, and adoptive admissions.)
Agustin testified under a grant of immunity. During her 11-month
relationship with Johnson, she smoked marijuana just about every day,
but to her knowledge suffered no memory loss as a result. Senior Officer
Sherman testified that it is not uncommon, within the gang culture, for a
shooter to brag about shooting, though he likely would not brag about
shooting an innocent victim. A shooter would not brag about doing a
shooting he did not actually do; to take credit for something someone else
did would be perceived as disrespect.

19

The trial court instructed the jury that Agustin was a potential
accomplice to conspiracy to violate section 186.22, subdivision (a), as
charged in count nine, and section 186.22, subdivision (a)(1), as charged
in count eleven.

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2.

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At trial, Lee and Dixon asserted in part that admission of the
challenged evidence violated their confrontation rights under the Sixth
Amendment to the United States Constitution, because they were unable
to cross-examine the declarant, Johnson. They now acknowledge that the
statements at issue were not testimonial. (Davis v. Washington (2006) 547
U.S. 813, 822, 826-827 (Davis); Crawford v. Washington (2004) 541 U.S.
36, 51-54 (Crawford).) "Only [testimonial statements] cause the declarant
to be a 'witness' within the meaning of the Confrontation Clause. [Citation.]
It is the testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause." (Davis, at p. 821.)
"Accordingly, after Davis, the determination of whether the admission of a
hearsay statement violates a defendant's rights under the confrontation
clause turns on whether the statement is testimonial. If the statement is
testimonial, it must be excluded unless the declarant is unavailable as a

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Analysis

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witness and the defendant had a prior opportunity to cross-examine the
declarant. If the statement is not testimonial, it does not implicate the
confrontation clause, and the issue is simply whether the statement is
admissible under state law as an exception to the hearsay rule." (People
v. Garcia (2008) 168 Cal.App.4th 261, 291; see People v. Cage (2007) 40
Cal.4th 965, 981 & fn. 10, 984.)
In light of the foregoing, on appeal Lee and Dixon abandon their
Sixth Amendment argument. Instead, they focus on their claims the
evidence was (1) not admissible under the Evidence Code, and (2) so
grossly unreliable that its admission denied them their rights to due
process and a fair trial.
The statements Johnson made to Agustin outside the presence of
Lee and/or Dixon primarily were admitted as declarations against interest.
Pursuant to Evidence Code section 1230, "Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, ... so far subjected him to the risk
of ... criminal liability, ... that a reasonable man in his position would not
have made the statement unless he believed it to be true."
The first requirement — unavailability of the declarant — was
clearly satisfied. Having chosen to exercise his Fifth Amendment privilege
not to testify, Johnson was unavailable. (People v. Cudjo (1993) 6 Cal.4th
585, 607; People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.)
The second and third requirements — that the statement must have
been against the declarant's penal interest and must have been
sufficiently reliable to warrant admission despite its hearsay character
(People v. Cudjo, supra, 6 Cal.4th at p. 607) — are interrelated. If a
statement "'is truly against interest within the meaning of Evidence Code
section 1230,'" it "'is sufficiently trustworthy to be admissible ....'" (People
v. Geier (2007) 41 Cal.4th 555, 584; see People v. Fuentes, supra, 61
Cal.App.4th at pp. 966-967.) Because declarations against penal interest
sometimes contain self-serving and unreliable information (People v.
Duarte (2000) 24 Cal.4th 603, 611), Evidence Code section 1230 does not
apply "to evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant." (People v. Leach
(1975) 15 Cal.3d 419, 441, fn. omitted.) Thus, the statute does not apply
to "'collateral assertions'" within a declaration against penal interest
(Duarte, supra, at p. 612); moreover, "a hearsay statement 'which is in
part inculpatory and in part exculpatory (e.g., one which admits some
complicity but places the major responsibility on others) does not meet the
test of trustworthiness and is thus inadmissible.' [Citations.]" (Ibid.)
To determine whether a particular statement is trustworthy, "a trial
court 'may take into account not just the words but the circumstances
under which they were uttered, the possible motivation of the declarant,
and the declarant's relationship to the defendant.' [Citation.]" (People v.
Cudjo, supra, 6 Cal.4th at p. 607.) This is because "even when a hearsay
statement runs generally against the declarant's penal interest and
redaction has excised exculpatory portions, the statement may, in light of
circumstances, lack sufficient indicia of trustworthiness to qualify for
admission. [Citations.]" (People v. Duarte, supra, 24 Cal.4th at p. 614.)
Accordingly, "assessing trustworthiness '"requires the court to apply to the
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peculiar facts of the individual case a broad and deep acquaintance with
the ways human beings actually conduct themselves in the circumstances
material under the exception."' [Citation.]" (Ibid.)
The test of whether a statement is one against penal interest "is an
objective one — would the statement subject its declarant to criminal
liability such that a reasonable person would not have made the statement
without believing it true. [Citations.]" (People v. Jackson (1991) 235
Cal.App.3d 1670, 1678, fn. omitted.) We review a trial court's
determinations whether a statement was against the declarant's penal
interest and whether it was trustworthy for abuse of discretion. (People v.
Lawley (2002) 27 Cal.4th 102, 153; People v. Gordon (1990) 50 Cal.3d
1223, 1250-1253, overruled on another ground in People v. Edwards,
supra, 54 Cal.3d at p. 835; People v. Greenberger (1997) 58 Cal.App.4th
298, 335 (Greenberger).)[fn96]
FN96: There is some disagreement concerning the
appropriate standard of review of a trial court's ruling on the
trustworthiness issue. Citing Lilly v. Virginia (1999) 527 U.S.
116 (plur. opn. of Stevens , J.) (Lilly), some courts have
conducted de novo review. (See, e.g., People v. Cervantes
(2004) 118 Cal.App.4th 162, 174-175 & cases cited therein.)
However, the Lilly court expressly stated it accepted the
state court's determination that the declarant's statements
were reliable for purposes of state hearsay law. (Lilly, supra,
at p. 136 (plur. opn. of Stevens , J.).) It applied the standard
of independent review with respect to whether the
government's proffered guarantees of trustworthiness
satisfied the demands of the confrontation clause. (Id. at p.
137.) In so doing, Lilly undertook the pre-Crawford
confrontation clause analysis required by Ohio v. Roberts
(1980) 448 U.S. 56, 66 (Roberts), viz., "that the veracity of
hearsay statements is sufficiently dependable to allow the
untested [by cross-examination] admission of such
statements against an accused when (1) 'the evidence falls
within a firmly rooted hearsay exception' or (2) it contains
'particularized guarantees of trustworthiness' such that
adversarial testing would be expected to add little, if
anything, to the statements' reliability. [Citation.]" (Lilly,
supra, at pp. 124-125 (plur. opn. of Stevens , J.).) With
Crawford and Davis, however, Roberts has been overruled
for all purposes. (People v. Cage, supra, 40 Cal.4th at p.
981, fn. 10.) We thus adhere to the abuse-of-discretion
standard, although our conclusion regarding admissibility
would be the same in the present case under de novo
review.
Johnson's statements implicated him in murder and attempted
murder. Clearly, on their face they were against his penal interest. (People
v. Cudjo, supra, 6 Cal.4th at p. 607.) This is true even of those portions
that inculpated Dixon and Lee. Under the circumstances related by the
statements, inclusion of their participation was specifically disserving to
Johnson's interest by implicating him in a conspiracy, and in retaliatory
shootings that were premeditated and inferentially gang related; and it was
not exculpatory, self-serving, or collateral. (Compare People v. Samuels
(2005) 36 Cal.4th 96, 120-121 with People v. Lawley, supra, 27 Cal.4th at
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pp. 152-154.)
The statements also met the trustworthiness requirement. "In
addition to the 'reasonable assurance' of the veracity that ordinarily flows
from a person's interest in not being criminally implicated [citation], the
circumstances surrounding [Johnson's] statements confirm their
reliability." (People v. Arceo (2011) 195 Cal.App.4th 556, 577.) "[T]he least
reliable circumstance is one in which the declarant has been arrested and
attempts to improve his situation with the police by deflecting criminal
responsibility onto others.... However, the most reliable circumstance is
one in which the conversation occurs between friends in a noncoercive
setting that fosters uninhibited disclosures. [Citations.]" (Greenberger,
supra, 58 Cal.App.4th at p. 335.) Here, the statements were made by
Johnson to his lover, on one occasion while the two lay in bed.
It is true that Agustin's recitation of what she recalled Johnson
telling her was, in certain respects, at odds with other evidence presented
at trial. This was not fatal to admission of the challenged evidence,
however. When evidence is offered under a hearsay exception, the trial
court must determine, as a preliminary fact, that the declarant made the
statement as represented. (People v. Cudjo, supra, 6 Cal.4th at p. 608.)
This determination "is governed by the substantial evidence rule. The trial
court is to determine only whether there is evidence sufficient to sustain a
finding that the statement was made. [Citation.] As with other facts, the
direct testimony of a single witness is sufficient to support a finding unless
the testimony is physically impossible or its falsity is apparent 'without
resorting to inferences or deductions.' [Citations.][fn97] Except in these
rare instances of demonstrable falsity, doubts about the credibility of the
in-court witness should be left for the jury's resolution; such doubts do not
afford a ground for refusing to admit evidence under the hearsay
exception for statements against penal interest. [Citations.]" (Id. at pp.
608-609.)
FN97: The trial court ruled Agustin was a potential
accomplice only with respect to the counts that charged
active participation in, or conspiracy to actively participate in,
a gang. Defendants do not now challenge this ruling. As a
result, her testimony did not potentially require corroboration
with respect to the counts that charged the various
shootings.
The discrepancies here are such only when Johnson's reported
statements are compared with other evidence presented at trial. Even
under pre-Crawford analysis, however, the question is whether hearsay
evidence "'possess[es] indicia of reliability by virtue of its inherent
trustworthiness, not by reference to other evidence at trial.' [Citation.]"
(Lilly, supra, 527 U.S. at p. 138 (plur. opn. of Stevens , J.), italics added.)
Here, the discrepancies did not negate all possibility that, if Johnson
claimed to be involved in the various shootings, he was telling the truth.
(See People v. Cudjo, supra, 6 Cal.4th at pp. 607-608.) Rather, the trial
court (and, ultimately, the jury) reasonably could have concluded Johnson
did indeed tell Agustin what happened, but she misunderstood or
misrecollected some of the details. (See id. at p. 607.)
Because Johnson's statements qualified as declarations against
interest and satisfied the trustworthiness requirement, they were properly
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admitted against Dixon and Lee. This is so regardless of whether Dixon
and Lee were present when the statements were made. (See, e.g., People
v. Samuels, supra, 36 Cal.4th at pp. 120-121; People v. Arceo, supra, 195
Cal.App.4th at pp. 563, 576-578; People v. Cervantes, supra, 118
Cal.App.4th at pp. 166-167, 174-177; Greenberger, supra, 58 Cal.App.4th
at pp. 326, 336-337.) The trial court did not err in admitting the evidence.
The trial court similarly did not err in concluding that certain of the
statements made by Johnson to Lee and/or Dixon in Agustin's presence
were admissible as adoptive admissions.[fn98] Pursuant to Evidence
Code section 1221, "Evidence of a statement offered against a party is not
made inadmissible by the hearsay rule if the statement is one of which the
party, with knowledge of the content thereof, has by words or other
conduct manifested his adoption or his belief in its truth."

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FN98: Dixon suggests he did not receive constitutionally
required notice to litigate adoptive admissions as a theory of
admissibility, but we disagree. The record clearly shows this
theory of admissibility was addressed by the court and
counsel at trial. We do not hold evidence was admissible as
an adoptive admission if the trial court did not so find (see,
e.g., People v. Lucas (1995) 12 Cal.4th 415, 462; People v.
Alcala (1992) 4 Cal.4th 742, 795-796; but see People v.
Brown (2004) 33 Cal.4th 892, 901), but rather conclude the
trial court properly determined that some of the challenged
evidence was admissible under this exception to the hearsay
rule.
"There are only two requirements for the introduction of adoptive
admissions: '(1) the party must have knowledge of the content of another's
hearsay statement, and (2) having such knowledge, the party must have
used words or conduct indicating his adoption of, or his belief in, the truth
of such hearsay statement.' [Citation.] '[A] typical example ... is the
accusatory statement to a criminal defendant made by a person other than
a police officer, and defendant's conduct of silence, or his words or
equivocal and evasive replies in response. With knowledge of the
accusation, the defendant's conduct of silence or his words in the nature
of evasive or equivocal replies lead reasonably to the inference that he
believes the accusatory statement to be true.' [Citation.]" (People v. Silva
(1988) 45 Cal.3d 604, 623-624, italics omitted.) "For the adoptive
admission exception to the hearsay rule to apply, no 'direct accusation in
so many words' is necessary. [Citation.] Rather, it is enough that the
evidence showed that the defendant participated in a private conversation
in which the crime was discussed and the circumstances offered him the
opportunity to deny responsibility or otherwise dissociate himself from the
crime, but that he did not do so. [Citation.]" (People v. Davis (2005) 36
Cal.4th 510, 539.)
There can be little doubt that Johnson's conversations with Lee,
Dixon, or both, as recounted by Agustin, resulted in adoptive admissions
on the part of the nondeclarant defendant(s). (See People v. Fauber,
supra, 2 Cal.4th at pp. 851-853.)[fn99] To the extent indicia of reliability
were required even though the statements were not testimonial (see
People v. Sully (1991) 53 Cal.3d 1195, 1232-1233 [pre-Davis
confrontation clause analysis]), they were sufficient for the reasons
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discussed with respect to the declarations against penal interest, ante.
FN99: Defendants implicitly concede their own statements, if
found by the jury to have been made as testified to by
Agustin, constituted admissions under Evidence Code
section 1220.

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Admission of the various statements as declarations against penal
interest and/or adoptive admissions was not an abuse of discretion under
state law, whether as hearsay exceptions or under Evidence Code section
352. (See People v. Geier, supra, 41 Cal.4th at p. 585.) As the statements
were nontestimonial, their admission did not violate the confrontation
clause. Moreover, their admission did not violate due process or render
the trial fundamentally unfair. Any unreliability in Agustin's recollection and
recitation of the statements was amply brought to the jury's attention
through cross-examination. (See People v. Gutierrez (2009) 45 Cal.4th
789, 813.)

15

In light of the foregoing, we need not determine whether any of the
statements were also properly admitted under the exception to the
hearsay rule for coconspirator statements. (Evid. Code, § 1223.)
Assuming evidence was erroneously admitted under that exception (for
instance, in the case of statements concerning the Reese robbery,
because the conspiracy had ended), the error was harmless under any
standard. There was ample evidence, aside from Johnson's identification
of Lee and Dixon as Country Boy Crips, that the pair were gang members;
the Pacheco Road shootings were not charged against any defendant,
and Dixon was not charged with the shooting at Monterey and Inyo; and
evidence of what was said concerning the Reese robbery was properly
admitted under other hearsay exceptions.

16

b.

Discussions with Lee's girlfriend

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Background

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Agustin testified about Johnson's gang activities and what he told her
about his position in the Country Boy Crips. She testified that Lee was his
best friend, and described where Lee lived and meeting his family at Lee's
home. Asked if she had ever met any of Lee's girlfriends, Agustin said she
had met one. This ensued:

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"Q. [by the prosecutor] And did [Lee] refer to her in any
certain way?
"A. He never called — said — he said it wasn't his girlfriend.
He hadn't given her that title yet.
"Q. So you saw him with a woman that he was involved in
like a dating relationship with. Is that correct?
"A. Correct.

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"Q. But he told you that he hadn't given her the title of
girlfriend.

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"A. That is correct. [¶] And his girlfriend — and that girl also
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told me the same thing, that she had not earned that title yet.
[¶] ... [¶]

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"Q. She was pregnant with his child, correct?

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"A. Yes, that is correct.

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"[COUNSEL FOR LEE]: Objection; relevance.

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"THE COURT: Response?

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"[PROSECUTOR]: This woman has significant relevance in
this case. I'll make an offer of proof that it's —

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"THE COURT: I'm going to overrule the objection."
Agustin then testified she did not remember this woman's name.
She also testified Lee had a son whose mother she had never met.
Agustin subsequently testified that Lee was not as open with her
about his gang activities as Johnson was; however, Lee would talk about
his gang activities with Johnson in the house on Encina Street within
earshot of Agustin. Asked if she ever discussed Lee's gang activities with
the girl to whom Lee had not given the title of girlfriend, Agustin replied
affirmatively. When the prosecutor asked when, counsel for Johnson
objected "as to hearsay as to a conversation with some third party that's
not identified for any relevant purposes." Counsel for Dixon and Lee both
joined. The prosecutor asserted it was relevant because it went "to the fact
that she was told that she better not talk to his girlfriend by Corey Johnson
about gang activities." The trial court overruled the objection.
Lee's attorney immediately objected on grounds of unreliable and
untrustworthy hearsay, improper declaration against penal interest,
improper use of a coconspirator's statement, no proper and lawful
exception to the hearsay rule, and as denying Lee's rights under the Sixth
and Fourteenth Amendments. Dixon joined. The prosecutor represented
that she was not offering this particular statement for the truth of the
matter, just that there was a discussion about gang activities and for what
happened after. The court overruled the objection and admitted the
evidence "for the limited purpose to explain what may have transpired
after this discussion."
Agustin then testified that she had the discussion with the person
she considered Lee's girlfriend, although he never claimed her to be a
girlfriend. The court clarified that the woman was carrying Lee's child. The
prosecutor then elicited that Agustin had a discussion with this woman
about Lee's role and activities in the gang, and that shortly after that
discussion, Agustin heard from Johnson about it. Johnson told Agustin
that she talked too much.
Counsel for Lee renewed his objection, this time with respect to
Johnson's statements. Counsel for Dixon joined. The prosecutor
represented that the evidence was coming in for a limited purpose. She
further asserted it was not offered for the truth of the matter and was an
admission by Johnson. The court admitted it for that purpose, but limited it
to Johnson. Agustin then testified that Johnson told her she talked too
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much and that Lee did not let his girlfriend know anything, so Agustin
should not say anything.
During her argument to the jury, the prosecutor discussed the
evidence showing Lee to be a member of the Country Boy Crips. Included
were four individuals the prosecutor termed Lee's women, whom, she
said, played an important role in this case in one way or the other. In
pertinent part, the prosecutor stated:
"Saleta Roseburr was the one that hadn't earned the title of
girlfriend yet even though she was pregnant with his child. She was also
— that's Saleta Roseburr, the hostess at Denny's, and Adrian Bonner's
friend." (Italics added.)
2.

Analysis

Saleta Roseburr's relationship with Lee was relevant because of
her connection, however inadvertent, to what happened to Adrian Bonner.
It thus was proper for the prosecutor to seek to show the nature of that
relationship. Since Lee told Agustin that Roseburr was not his girlfriend,
the fact Roseburr was pregnant with Lee's child was relevant to explain
Agustin's belief Roseburr was his girlfriend.[fn100]
FN100: Lee asserts his trial attorney objected to Agustin's
testimony about Roseburr not having earned the title of
girlfriend. He is incorrect. Counsel objected to the additional
testimony about her being pregnant with Lee's child.
There is also some relevance to Johnson's reaction to Agustin's
discussion of Lee's gang activities with Roseburr. Johnson's active
participation in a criminal street gang was clearly an issue in dispute.
Johnson's actions prohibiting Agustin from discussing Lee's gang activities
with Lee's girlfriend demonstrates Johnson's participation and active
involvement in the gang in that it shows him trying to maintain the
clandestine nature of the gang's activities.
Lee and Dixon do not claim the evidence was prejudicial of itself,
and we concur. Lee's treatment of Roseburr paled in comparison to other
evidence that was admitted, and the testimony about Agustin's
conversation with Roseburr was, at most, merely cumulative of the gang
evidence. (See People v. Mayfield (1997) 14 Cal.4th 668, 751.)
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 276-311.
2.

Analysis

23
Respondent reminds the Court that Petitioner withdrew, and the California Courts
24

did not address, argument that Agustin’s testimony violated his Sixth Amendment right to

25
Confrontation under Crawford v. Washington, 541 U.S. 36 (2004). A review of
26

Petitioner’s state appellate records confirms that he did not present a Confrontation

27
Clause argument to the state courts on direct review. (See Lodged Doc. 1 at 64, Lodged
28
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1

Doc. 6 at 9-10.) As Petitioner neither exhausted his Confrontation Clause claim in state

2

court, nor presented it in the present petition, the Confrontation Clause claim is not

3

before the Court for review.

4

Instead, Petitioner only seeks federal habeas review of his claim that Agustin’s

5

statements were so unreliable as to violate Petitioner’s right to a fundamentally fair trial

6

under the Due Process Clause. (Pet. at 30-31.) Admission of evidence may amount to a

7

due process violation if it is clearly prejudicial and rendered a trial fundamentally unfair.

8

Michigan v. Bryant, 562 U.S. 344, 371 n. 13 (2011), ("Of course the Confrontation

9

Clause is not the only bar to admissibility of hearsay statements at trial. State and

10

federal rules of evidence prohibit the introduction of hearsay, subject to exceptions.

11

Consistent with those rules, the Due Process Clauses of the Fifth and Fourteenth

12

Amendments may constitute a further bar to admission of, for example, unreliable

13

evidence.") (citing Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (plurality opinion)

14

("[E]rroneous evidentiary rulings can, in combination, rise to the level of a due process

15

violation") and Dutton v. Evans, 400 U.S. 74, 96-97 (1970) (Harlan, J., concurring in

16

result) ("[T]he Fifth and Fourteenth Amendments' commands that federal and state trials,

17

respectively, must be conducted in accordance with due process of law" is the

18

"standard" by which to "test federal and state rules of evidence")); see also Valerio v.

19

Crawford, 306 F.3d 742, 775 (9th Cir. 2002).

20

Admission of evidence only violates due process when two circumstances are

21

met: (1) there are no permissible inferences the jury may draw from the evidence, and

22

(2) the evidence is of such quality as necessarily prevents a fair trial. See Jammal v. Van

23

de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

24

The United States Supreme Court has stated that Due Process might bar

25

unreliable hearsay. Bryant, 131 S.Ct. at 1162 n. 13. However, some case law suggests

26

that no clearly established Supreme Court law precludes the admission of such evidence

27

so long as it does not violate the Confrontation Clause. See, e.g., Holley v. Yarborough,

28

568 F.3d 1091, 1101 (9th Cir. 2009) (noting that the Supreme Court "has not yet made a
87

1

clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due

2

process violation sufficient to warrant issuance of the writ"); Moses v. Payne, 555 F.3d

3

742, 761-62 (9th Cir. 2009) (rejecting claim because the Supreme Court has never held

4

that the admission of expert testimony on an ultimate issue to be resolved by the trier of

5

fact violates the Due Process Clause); Alberni v. McDaniel, 458 F.3d 860, 863-867 (9th

6

Cir. 2006) (stating that the Supreme Court has not yet ruled on the specific question of

7

whether the admission of propensity evidence violates the Due Process Clause (and, on

8

the contrary, has expressly refrained from deciding this question).

9

Rather than assume that the claim is without merits because there is no clearly

10

established Supreme Court law addressing the issue, the Court will review Petitioner’s

11

claim under the more expansive test regarding whether his due process was violated

12

based upon the improper admission of evidence.

13

As stated in claim one, habeas relief for the admission of prejudicial evidence if

14

the admission was fundamentally unfair and resulted in a denial of due process. Estelle,

15

502 U.S. at 72; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Jeffries v.

16

Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993); Gordon v. Duran, 895 F.2d 610, 613 (9th

17

Cir. 1990). Constitutional due process is violated if there are no permissible inferences

18

that may be drawn from the challenged evidence. Jammal v. Van de Kamp, 926 F.2d

19

918, 919-20 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise

20

more than one inference, some permissible, some not." Id. at 920. "A habeas petitioner

21

bears a heavy burden in showing a due process violation based on an evidentiary

22

decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

23

The California Court of Appeal appropriately found that Agustin’s testimony was

24

properly admitted as statements against Petitioner and his co-defendant’s penal

25

interests or adoptive admissions of such statements by the other co-defendants. In

26

reviewing the admission of the hearsay evidence, the California Court adopted and

27

applied state standards that incorporated the federal standards regarding the admission

28

of hearsay evidence. See e.g., People v. Greenberger, 58 Cal. App. 4th 298, 334-335
88

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(1997) (relying on Dutton v. Evans, 400 U.S. 74, 88 (1970); Idaho v. Wright, 497 U.S.

2

805, 819 (1990); Williamson v. United States, 512 U.S. 594, 601 (1994)).

3

The Sixth Amendment’s Confrontation Clause, which is binding on the States

4

through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused

5

shall enjoy the right . . . to be confronted with the witnesses against him.” Ohio v. Clark,

6

135 S. Ct. 2173, 2179 (2015) The Supreme Court, in Ohio v. Roberts, 448 U.S. 56, 66

7

(1980), interpreted the Clause to permit the admission of out-of-court statements by an

8

unavailable witness, so long as the statements bore “adequate indicia of reliability.” Such

9

indicia are present if “the evidence falls within a firmly rooted hearsay exception” or

10

bears “particularized guarantees of trustworthiness.” Id.

11

The state court’s determination that Petitioner or his co-defendant’s statements to

12

Agustin were trustworthy was not unreasonable. The state court explained that Agustin

13

was in a serious relationship with co-defendant Johnson, and the statements made

14

regarding the criminal activities were against interest, as they implicated Petitioner and

15

his co-defendants in multiple shootings resulting in several counts of murder and

16

attempted murder. The statements also implicated that Petitioner and his co-defendants

17

were active criminal street gang members and that the crimes were committed for the

18

benefit of the gang. Finally, rather than attempt to deflect and place blame on other co-

19

defendants, the statements implicated Petitioner and his co-defendants as co-

20

conspirators, thereby implicating all three in the crimes, rather than attempting to divert

21

and place the criminal activity on one of the criminal co-conspirators.

22

Further, the state court was not unreasonable in determining the statements were

23

adoptive admissions as to Petitioner. Petitioner has presented no evidence that he

24

attempted to deny responsibility or otherwise dissociate himself from statements of his

25

co-defendants made in front of Agustin implicating him the various crimes. Based on the

26

totality of the circumstances surrounding the statements against interest, the state

27

court’s determination that the hearsay statements were admissible as statements

28

against interest or adoptive statements against interest was reasonable.
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Even if the statements were admitted in error, Petitioner is only entitled to relief if

2

the error had "a substantial and injurious effect or influence in determining the jury's

3

verdict."

4

explained in further detail with regard to claim one, Petitioner has failed to show any

5

reasonable probability that the result would have been different had Agustin’s

6

statements not been admitted. There was significant physical evidence left implicating

7

Petitioner and his co-defendants were involved in the McNew Court shooting, and phone

8

records implicated that Petitioner and his co-defendants were in the vicinity of the crime

9

scene at the time of the shooting. Further Petitioner made statements against interest to

10

Brecht, 507 U.S. at 623; Fry v. Pliler, 551 U.S. at 121-22. As the Court

Jackson while custody regarding the both the McNew Court and Planz road shootings.

11

Accordingly, the Court cannot find the rejection of Petitioner's claim regarding the

12

admission of Agustin’s testimony to be unreasonable. See 28 U.S.C. § 2254(d). The

13

California Court of Appeal decision denying this claim was not contrary to clearly

14

established Supreme Court precedent and Petitioner is not entitled to habeas relief.

15

C.

16

Petitioner, in his third claim, asserts that his Fifth, Sixth and Fourteenth

17

Amendment rights were violated by the admission of statements made during a

18

conversation between Petitioner and Dupree Jackson after they had been arrested.

19

(ECF No. 1 at 32.) Petitioner contends that the attempt by law enforcement to elicit

20

incriminating statements from him violated his rights under Massiah v. United States,

21

377 U.S. 201 (1964). (Id.)

22

Claim Three – Massiah Violation

1.

State Court Decision

23

Petitioner presented this claim by way of direct appeal to the California Court of

24

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

25

appellate court and summarily denied in subsequent petition for review by the California

26

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

27

opinion is summary in nature, this Court "looks through" that decision and presumes it

28

adopted the reasoning of the California Court of Appeal, the last state court to have
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issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

2

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

3

5.

4

Defendants claim the trial court committed prejudicial error with
respect to the admission of Dupree Jackson's testimony. First, Dixon says
the court erred by denying him a hearing on the issue of intentional
charging delay in conjunction with his motion to exclude Jackson's
testimony on the ground he was acting as a police agent. Johnson and
Lee join. The People say the trial court properly rejected the substantive
claim as a matter of law; hence, no additional hearing was constitutionally
required. Second, Lee says the trial court erred by permitting Jackson to
testify, without sufficient foundation, regarding cell phone practices of
gang members in walk-up shootings. Johnson and Dixon join. The People
say ample foundation was laid, but, if error occurred, it was harmless in
light of the gang expert's duplicative opinion testimony.

5
6
7
8
9
10

Dupree Jackson's Testimony

11

Jackson's testimony is set out at length in the statement of facts,
ante. We address defendants' claims in turn.

12

a.

13

Massiah[fn106]
FN106: Massiah v. United States (1964) 377 U.S. 201.

14

1.

15

Prior to trial, Dixon moved to exclude testimony by Jackson about
what Dixon told him while they were in jail together, on the ground
Jackson was an agent of the government at the time. In their response,
the People represented that Dixon and Lee were celled together from
August 25 to August 29, 2007, but that no one intentionally placed them
together in connection with this case, and Jackson was under no directive
to speak to Dixon about this case. Because Dixon was not in custody on
this case, as he was not arrested in connection with it until October 1,
2007, the People argued, there was no Sixth Amendment violation.

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Background

At the hearing on the motion, the prosecutor presented a certified
copy of the felony complaint in this case, showing it was not filed until
October 2, 2007. She related that on August 24, 2007, Dixon and Lee
were arrested on charges of vehicle pursuit and possession of an assault
rifle. The next day, Jackson was arrested on a parole violation. Before he
was taken to the jail, he had an interview with the Bakersfield Police
Department in which he implicated Johnson in the McNew Court, and Real
Road and Planz, shootings. Detective Darbee told Jackson to think about
whether he would be willing to testify in this case and, when Jackson
expressed some concerns, Darbee told Jackson he would talk to him
about it in a few days. Four days later, on August 29, Darbee brought
Jackson to the police department again. In the meantime, however,
unbeknown to the police department or the detectives involved from the
sheriff's department, Dixon and Jackson were placed in the same cell, and
Dixon spoke to Jackson about this case. On August 29, Jackson was
again interviewed by the police department and asked if he would be
willing to testify. During this interview, he revealed what Dixon had told
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him while they were celled together. That same day, Dixon was moved out
of the cell.
The prosecutor asserted that no one involved with this case asked
for Dixon and Jackson to be celled together, and she offered to present
testimony on that point. Moreover, she argued, even if they were
intentionally housed together, that fact would be irrelevant under the law,
because Dixon was not in custody on this case.
Counsel for Dixon represented that Jackson would be brought out
to see his parole officer and talk to a police officer, then would be sent
back in to get more information, and brought out again. Counsel argued
he was an informant, and an agent of the police department. Counsel
acknowledged that Dixon was in custody on another charge, but pointed
out he was a suspect in this case because law enforcement had already
interviewed him in April about the McNew Court shootings, plus officers
had already interviewed Agustin. Counsel asked the court to assume a
scenario in which a suspect was charged with something else, and then
the authorities decided to hold off filing the indictment or complaint in order
to send in agents to elicit information. Counsel asserted that just because
the authorities were holding off filing should not deprive his client of his
Fifth or Sixth Amendment rights.
The court found no Sixth Amendment violation. Accordingly, it ruled
the statements were admissible.[fn107] Jackson subsequently testified
concerning the circumstances under which he and Dixon were celled
together, and statements Dixon made to him about some of the offenses
charged in this case.

15

FN107: Lee challenged admission of Jackson's testimony on
statutory grounds, because of money and assistance
Jackson had been given. That issue is not raised on appeal.

16
17

2.

Analysis

18

The California Supreme Court has stated:

19

"The Sixth Amendment [to the United States Constitution]
provides that 'in all criminal prosecutions, the accused shall
enjoy the right ... to have the assistance of counsel for his
defense.'

20
21
22
23
24
25
26
27
28

"In Massiah[, supra,] 377 U.S. 201, and its progeny, the
United States Supreme Court held that 'the government' —
whether federal or state — 'may not use an undercover
agent to circumvent the Sixth Amendment right to counsel
once' that right has attached. [Citation.] After attachment,
'the Sixth Amendment prevents the government from
interfering with the accused's right to counsel.' [Citation.]
Before attachment, by contrast, the constitutional provision is
not implicated. [Citation.]
"The Sixth Amendment right to counsel 'does not attach until
a prosecution is commenced, that is, "'at or after the initiation
of adversary judicial criminal proceedings — whether by way
of formal charge, preliminary hearing, indictment,
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28

information, or arraignment.'"' [Citations.] It is not enough, for
example, that the defendant has become the focus of the
underlying criminal investigation. [Citations.]
"The Sixth Amendment right to counsel, the United States
Supreme Court has ... declared, is 'offense specific.'
[Citation.] That is to say, it attaches to offenses as to which
adversary judicial criminal proceedings have been initiated
— and to such offenses alone. [Citation.]" (People v. Clair
(1992) 2 Cal.4th 629, 657; see also McNeil v. Wisconsin
(1991) 501 U.S. 171, 175; Illinois v. Perkins (1990) 496 U.S.
292, 299-300; United States v. Gouveia (1984) 467 U.S.
180, 187-188; United States v. Henry (1980) 447 U.S. 264,
270.)
The trial court here implicitly found Dixon's Sixth Amendment right
to counsel had not attached as to the offenses charged in this case. We
examine this conclusion independently, while scrutinizing underlying
findings for substantial evidence. (People v. Clair, supra, 2 Cal.4th at p.
657.) So reviewed, the trial court's determination is correct. Indeed, no
other conclusion can be drawn from the record.
Dixon says, however, that the trial court erred in accepting the
prosecutor's view that no hearing on intentional charging delay was
required. In reality, the record shows the prosecutor never expressed such
a view. Rather, her argument was that because Dixon's Sixth Amendment
right to counsel had not attached, whether Jackson was merely listening to
Dixon or actively eliciting information from him was irrelevant, and so no
hearing needed to be held to make that determination. (See United States
v. Henry, supra, 447 U.S. at pp. 271-272 & fn. 9 [distinguishing, in case
involving postindictment communications, between informant who is
passive listener and one who deliberately elicits information].)
We assume, for purposes of our analysis, that intentional and
unnecessary delay by the government in bringing charges can implicate a
defendant's Sixth Amendment right to counsel. (See Flittie v. Solem (8th
Cir. 1985) 775 F.2d 933, 943; State v. McNeil (Wis. 1990) 454 N.W.2d
742, 749-750; but see People v. Webb, supra, 6 Cal.4th at pp. 527-528.)
In the present case, however, counsel for Dixon merely asked the court to
assume a scenario in which there was such delay. Defense counsel
neither asserted that intentional delay occurred (or even may have
occurred) in the present case, nor asked for a hearing on that issue. On
the record before us, the court was under no duty to hold such a hearing
absent a request. Accordingly, although defendants clearly raised a
substantive Massiah claim, they cannot predicate error on the trial court's
denial of the motion without holding a hearing. (See People v. Wilson
(2005) 36 Cal.4th 309, 347-348; cf. People v. Hoyos (2007) 41 Cal.4th
872, 897-898, overruled on another ground in People v. McKinnon, supra,
52 Cal.4th at pp. 637-643; People v. Hughes (2002) 27 Cal.4th 287, 325326.) The court did not err by finding no Sixth Amendment violation, and
defendants are entitled to neither reversal nor remand for a hearing on
delay.[fn108]
FN108: Because the record is insufficient to allow us to
determine whether unnecessary and intentional delay could
have been established such that Jackson's testimony should
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have been excluded, we cannot assess whether defense
counsel were ineffective in failing to request a hearing or
whether defendants were prejudiced thereby. Accordingly,
we reject defendants' alternative claims of ineffective
assistance of counsel.
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 312-319.
2.

Analysis

5
The Supreme Court has held that the right to counsel under Massiah "guarantees
6
the accused, at least after the initiation of formal charges, the right to rely on counsel as
7
a 'medium' between him and the State." Maine v. Moulton, 474 U.S. 159, 176 (1985).
8
Although "the Sixth Amendment is not violated whenever -- by luck or happenstance -9
the State obtains incriminating statements from the accused after the right to counsel
10
has attached," the state may not knowingly exploit an opportunity to confront an accused
11
in the absence of counsel or intentionally create a situation "likely to induce [him] to
12
make incriminating statements without the assistance of counsel." Id.; United States v.
13
Henry, 447 U.S. 264, 274 (1980).
14
To prove a Sixth Amendment Massiah violation based on the government's use of
15
an informant, a petitioner must show that the informant was acting as a government
16
agent and that he or she "deliberately elicited" incriminating statements from the
17
petitioner. Massiah, 377 U.S. at 206; Henry, 447 U.S. at 269-70. In Henry, the Supreme
18
Court found a Sixth Amendment violation where a paid government informant, Nichols,
19
had engaged the accused, Henry, in conversations regarding the charged bank robbery.
20
447 U.S. at 266, 270-71. The Supreme Court found that although Nichols was instructed
21
not to initiate any conversations with Henry, the government's awareness that Nichols
22
"had developed a relationship of trust and confidence with Henry" and would therefore
23
"be able to engage him in conversations without arousing Henry's suspicion" was
24
sufficient to find a violation. Id. at 269, 271. The Court emphasized that although Nichols
25
had not affirmatively questioned Henry, he had "stimulated" conversations in which he
26
was able to "elicit[] the statements in myriad less direct ways." Id. at 271 n.8, 273.
27
In Kuhlmann v. Wilson, 477 U.S. 436 (1986), the Supreme Court addressed a
28
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question left open in Henry: whether a Massiah violation may occur "where an informant

2

is placed in close proximity but makes no effort to stimulate conversations about the

3

crime charged." Henry, 447 U.S. at 271 n.9. The Kuhlmann Court answered this

4

question in the negative, holding that an informant placed in the accused's cell for the

5

sole purpose of listening to find out the names of accused co-conspirators did not

6

"deliberately elicit" information within the meaning of Massiah. Kuhlmann, 477 U.S. at

7

460. The Court noted that because "the primary concern of the Massiah line of decisions

8

is secret interrogation by investigatory techniques that are the equivalent of direct police

9

interrogation," a petitioner seeking to make out a Massiah claim "must demonstrate that

10

the police and their informant took some action, beyond merely listening, that was

11

designed deliberately to elicit incriminating remarks." Id. at 459.

12

However, "[r]ight to counsel cases in general, and the Massiah line of cases in

13

particular, involve incidents that occurred after the initiation of adversary criminal

14

proceedings and that arose during a critical, post-indictment proceeding. United States v.

15

Hayes, 231 F.3d 663 (9th Cir. 2000). The Sixth Amendment right to counsel does not

16

attach until a prosecution is commenced. United States v. Charley, 396 F.3d 1074, 1082

17

(9th Cir. 2005) (citing McNeil v. Wis., 501 U.S. 171, 175 (1991). In other words, it

18

attaches "at or after the initiation of adversary judicial criminal proceedings -- whether by

19

way of formal charge, preliminary hearing, indictment, information, or arraignment." Id.

20

"[T]he right to counsel guaranteed by the Sixth Amendment applies at the first

21

appearance before a judicial officer at which a defendant is told of the formal accusation

22

against him and restrictions are imposed on his liberty." Rothgery v. Gillespie County,

23

554 U.S. 191, 194 (2008).

24

As explained by the California Court of Appeal, on the night of August 23, 2007,

25

Petitioner was spotted by two Bakersfield Police Officers who knew Petitioner was on

26

parole. Petitioner fled in his vehicle when asked by the officers to perform a parole

27

search. Petitioner was driving the vehicle, and during the chase, jumped out of the

28

vehicle while it was still moving. When the car came to a stop, police found co-defendant
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Lee in the rear seat and a loaded Tec-9 pistol in the car. Petitioner fled, but was arrested

2

after midnight at his residence. Accordingly, Petitioner was placed under arrest for the

3

criminal acts occurring on the night of August 23, 2007. Petitioner was not arrested for,

4

nor formally charged, with the counts of murder and attempted murder for which he was

5

later convicted when placed in a holding cell with Jackson. Even if Petitioner had been

6

formally charged for the offenses relating to his actions evading the police on the night of

7

his arrest, Massiah is offense specific, and his charging would not provide protection

8

regarding the uncharged offenses to which he made statement against his penal interest

9

to Jackson while being held.

10

As the California Court of Appeal correctly found, Petitioner had yet to be formally

11

charged when he was placed in a holding cell with Jackson. Further, the events occurred

12

the day after his arrest, and Petitioner presented no facts supporting an intentional delay

13

in charging Petitioner. Because no formal charges were pending against Petitioner at the

14

time he made his incriminating statements to Jackson, Massiah is not implicated and

15

Petitioner's Sixth Amendment rights were not violated. The state court's denial of the

16

claim was not contrary to or an unreasonable application of clearly established federal

17

law. Petitioner is not entitled to federal habeas relief on his claim based on his Sixth

18

Amendment right to counsel.

19

Alternatively, Petitioner argues that trial counsel was ineffective for failing to

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exclude Petitioner’s statements to Jackson. The law governing ineffective assistance of

21

counsel claims is clearly established for the purposes of the AEDPA deference standard

22

set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In

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a petition for writ of habeas corpus alleging ineffective assistance of counsel, the Court

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must consider two factors. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

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L. Ed. 2d 674 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the

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petitioner must show that counsel's performance was deficient, requiring a showing that

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counsel made errors so serious that he or she was not functioning as the "counsel"

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guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must
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show that counsel's representation fell below an objective standard of reasonableness,

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and must identify counsel's alleged acts or omissions that were not the result of

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reasonable professional judgment considering the circumstances. Id. at 688; United

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States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of

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counsel's performance is highly deferential. A court indulges a strong presumption that

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counsel's conduct falls within the wide range of reasonable professional assistance.

7

Strickland, 466 U.S. at 687; see also, Harrington v. Richter, 131 S. Ct. 770, 178 L. Ed.

8

2d 624 (2011).

9

Second, the petitioner must demonstrate that "there is a reasonable probability

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that, but for counsel's unprofessional errors, the result ... would have been different,"

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Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were so

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egregious as to deprive defendant of a fair trial, one whose result is reliable. Id. at 687.

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The Court must evaluate whether the entire trial was fundamentally unfair or unreliable

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because of counsel's ineffectiveness. Id.

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However, a court need not determine whether counsel's performance was

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deficient before examining the prejudice suffered by the petitioner as a result of the

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alleged deficiencies. Strickland, 466 U.S. at 697. Since the defendant must affirmatively

18

prove prejudice, any deficiency that does not result in prejudice must necessarily fail. As

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the Supreme Court reaffirmed recently in Harrington v. Richter, meeting the standard for

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ineffective assistance of counsel in federal habeas is difficult based on the deference

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afforded under Strickland and AEDPA. Harrington v. Richter, 131 S. Ct. at 785-86. "As

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amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court

23

relitigation of claims already rejected in state proceedings." Id. "As a condition for

24

obtaining habeas corpus from a federal court, a state prisoner must show that the state

25

court's ruling on the claim being presented in federal court was so lacking in justification

26

that there was an error well understood and comprehended in existing law beyond any

27

possibility for fairminded disagreement." Id. at 786-87.

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Accordingly, even if Petitioner presents a strong case of ineffective assistance of
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counsel, this Court may only grant relief if no fairminded jurist could agree on the

2

correctness of the state court decision.

3

Petitioner has not presented a persuasive case of ineffective assistance of

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counsel, as there was no reasonable probability that the result would have been different

5

had trial counsel properly raised the issue. As noted above, Petitioner had not been

6

charged for the crimes at issue nor had Petitioner made a strong showing that there was

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intentional delay with regard to being charged as the incriminating statements were

8

made the day after Petitioner was arrested. As there was little chance that Petitioner was

9

entitled to relief under Massiah, counsel was neither ineffective, nor was Petitioner

10

prejudiced by his failure to present the claim at trial.

11

Petitioner has failed to meet his burden of showing that he was prejudiced as

12

required under Strickland. The state court decision that Petitioner was not prejudiced by

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counsel's conduct was neither contrary to, nor an unreasonable application of, clearly

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established Supreme Court law, nor was its decision based on an unreasonable

15

determination of the facts. Petitioner is not entitled to habeas relief.
Claim Four – Gang Expert Testimony

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D.

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Petitioner claims that the criminal street gang expert’s testimony violated his Due

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Process, his right to a fair trial, and right to a jury trial by presenting unfounded and

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prejudicial statements regarding Petitioner’s actions. (Pet. at 23-29.)

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1.

State Court Decision

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Petitioner presented this claim by way of direct appeal to the California Court of

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Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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appellate court and summarily denied in subsequent petition for review by the California

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Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

25

opinion is summary in nature, this Court "looks through" that decision and presumes it

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adopted the reasoning of the California Court of Appeal, the last state court to have

27

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

28

In denying Petitioner's claim, the Fifth District Court of Appeal explained:
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c.

2

Johnson contends the trial court erred in permitting Sherman to
testify to defendants' intent and motive, which were ultimate issues to be
decided by the jury. He says the court initially ruled evidence of
defendants' gang involvement was admissible to prove identity, motive,
and intent as to all counts, but later ruled the officer was not testifying to
intent or motive even though the officer did so testify. Johnson says this
allowed the prosecution to present speculative and unfounded expert
testimony on ultimate issues of law and fact. Because the expert's
opinions were improper, he concludes, they did not constitute sufficient
evidence to support the gang benefit enhancements, gang special
circumstances, and active gang participation charge.[fn120] Moreover, the
argument runs, because the evidence spilled over into the mental state
requirements for murder and conspiracy, reversal is required on all counts.
Dixon and Lee join.

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FN120: In contravention of California Rules of Court, rule
8.204(a)(1)(B), Johnson has not placed his sufficiency of the
evidence argument under a separate heading or
subheading.

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Mental States and Ultimate Issues of Fact

Dixon adds that the trial court erred by admitting Sherman's
testimony that Dixon was an active gang member in 2007, the Country
Boy Crips' pattern of criminal activity is common knowledge for other gang
members, "mirroring" hypothetical shootings were done with the intent to
aid the gang, and it is not common for gang members bragging about
crimes to go into much detail. He says the hypotheticals usurped the jury's
fact-finding responsibilities on ultimate issues; under section 29, an expert
cannot give an opinion as to the ultimate question of a person's intent,
knowledge, or mental state, or the reasonableness of a person's actions;
Sherman's testimony that gang members do not divulge details when
admitting crimes lacked foundation in the qualifications of the officer to
offer the opinions; the testimony was not helpful or necessary to the jury to
understand questions of intent, motive, and conduct; and the testimony
invaded the fact-finding province of the jury. Johnson and Lee join.

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The People say Sherman's testimony was proper, and that he did
not express any opinion concerning the actual, subjective motivation of
defendants. They further say the trial court properly relegated to crossexamination challenges to Sherman's qualifications to offer opinions on
subjects such as whether gang members divulge details when admitting
crimes. The People conclude that Sherman's testimony, combined with
additional evidence, provided sufficient evidence to uphold the various
charges, enhancements, and special circumstances.

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1.

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At the outset of the Evidence Code section 402 hearing, Sherman
testified that he had been employed as a senior police officer for over 12
years, before which he was a Kern County detentions officer for 10
years.[fn121] At the time of trial, he had been assigned to the Kern County
Violent Crimes Gang Task Force for about two months, before which he
was a field training officer on patrol for about a year. Before that, he was a
gang officer for the SEU for two years. The SEU monitors gang activity,

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Background

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conducts gang investigations and arrests, has daily contacts with gang
members, and gathers intelligence. During his time with the unit, Sherman
went out on a daily basis and patrolled high-activity gang areas, contacted
gang members and arrested them if appropriate, conducted investigations
of gang members, assisted in investigations in which gang members were
suspects, and testified in court on those cases as a gang expert.
FN121: Much of the procedural history concerning, and
content of, Sherman's testimony has already been stated.
We do not repeat everything here.
Sherman had over 200 hours of formalized training with respect to
gangs. Subjects addressed in his classes included why people become
gang members, why they stay in the gang life, the primary activities of the
gang, why they possess weapons, why they sell drugs, and why they
commit assaults. Through local training, he learned the gang territories,
the primary activities of the local gangs, and who the local gangs are, their
associates, and their rivals. Sherman also had expertise gained from
conducting gang investigations and personally contacting gang members.
He had investigated numerous gang cases within Bakersfield, involving
Black gangs, Hispanic gangs, and White gangs; and had contacted gang
members of pretty much each set and gang within Bakersfield. He
previously testified in court as a gang expert, including about the Westside
Crips, Eastside Crips, and Country Boy Crips. He stayed current on gang
trends by reading reports of the police department and sheriff's office;
speaking with officers, including probation and parole; and talking to gang
members.
Sherman also had experience with gang members as a detentions
officer for the sheriff's department. He was in contact with inmates on a
daily basis, and conducted disciplinary hearings and housing changes,
and had general conversations with, gang members.
Not all of Sherman's contacts with gang members were adversarial.
Some gang members will show respect if shown respect; once that
respect is established, they are willing to have candid conversations about
their lifestyles and traditions. Sherman had also sat in on the interviews of
arrested gang members. Sometimes gang members talked to him about
gang customs. In addition, he shared intelligence regarding gang crimes
with other officers.
Specifically with respect to the Country Boy Crips, Sherman had
training and experience in contacting members of that gang and talking to
them about it. He had also talked to other officers who had talked to
Country Boy Crips, and had read police reports about Country Boy Crips
and the crimes they commit. He had previously testified in court as an
expert on that gang.
At the conclusion of the Evidence Code section 402 hearing, the
trial court found Sherman to be qualified to testify as an expert in gang
recognition and detection. It proposed to give a limiting instruction telling
jurors they could consider evidence of gang activity only for the purpose of
deciding whether a defendant acted with the intent, purpose, and
knowledge required to prove gang-related crimes, enhancements, and
special-circumstance allegations, or that a defendant had a motive to
commit the crimes charged, as well as in evaluating the credibility of a
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witness when considering the facts and information relied on by an expert
witness. The court also proposed to admonish jurors that hearsay matters
relied on by Sherman could only be considered in evaluating the basis for
his opinion, and not for their truth. The court invited counsel to prepare a
proposed limiting instruction covering those areas of concern.
During the course of Sherman's testimony before the jury, the
prosecutor elicited that in 2007, the Country Boy Crip criminal street gang
engaged in a pattern of criminal activity. She then asked if that pattern of
criminal activity was a matter of common knowledge among other gang
members. When Sherman answered yes, the prosecutor asked why he
said that. Sherman answered, "Gang members know what other gang
members do." Counsel for Lee objected to the testimony as speculation.
The other defense attorneys joined. The trial court sustained the objection,
but told the prosecutor she could lay a foundation. The prosecutor then
elicited from Sherman that gang members will talk about who got
convicted of what, who was testifying, who was the witness, and the facts
of the case, and that they will discuss it among themselves and with their
friends and relatives. When she asked whether gang members discuss
crimes among themselves that are occurring out in the neighborhoods,
counsel for Lee objected that the question called for speculation and
lacked foundation. Counsel for Johnson joined. The court permitted
Sherman to answer based on his education, training, and experience.
Sherman answered that gang members did discuss it among themselves,
and also discussed it with officers. When the prosecutor asked how he
knew this, defense counsel asked for and were granted a continuing
objection. Sherman then answered that he had talked to gang members
who told him about crimes in which they were not involved, and said they
obtained the information from other gang members. They also talked to
him about crimes of which they knew. Sherman further testified this was
true for the Country Boy Crips.
The prosecutor asked again whether, in Sherman's opinion, the
pattern of criminal activity was a matter of common knowledge for gang
members within the Country Boy Crips. Counsel for Lee objected that it
went to the ultimate issue for the jury. Counsel for Johnson joined. The
matter was then taken up outside the jury's presence. Counsel for Lee
argued that testimony a gang member knew about what other gang
members were doing was speculative, without foundation, and removed
the issue from of the province of the jury. Ultimately, he objected under
Evidence Code section 352, on relevance grounds, and that it went to the
ultimate issue. Counsel for Johnson and Dixon joined. After further
argument that expanded to include the prosecutor's proffer of expert
testimony to show motivation for particular crimes, and whether and how a
crime was committed to benefit or promote a gang, the court ruled that as
long as the questions were based on the gang in general and not any of
these particular defendants unless Sherman had specific knowledge
otherwise, and were founded on Sherman's observations, interviews, and
intelligence received from active gang members, confidential informants,
and other officers, the probative value outweighed any prejudicial impact
and the evidence was admissible.
Counsel for Lee then asked for a continuing objection on the
ground that Sherman's opinions were based on unreliable hearsay, and on
protected speech and freedom of association. Counsel for Johnson and
Dixon joined. The court granted defendants continuing objections but
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overruled them, and rejected the claim Sherman's opinions would deny
defendants the right to confront and cross-examine the witnesses who
formed the basis of those opinions.
In the jury's presence, the prosecutor asked Sherman, separately
as to each defendant, if he had formed an opinion as to whether that
defendant was an active member of the Country Boy Crips between
March 1 and August 22, 2007, and what that opinion was.[fn122] The
prosecutor subsequently asked Sherman a series of hypothetical
questions that mirrored the prosecution's evidence of how the various
charged offenses occurred, but did not specifically refer to any defendant.
Defendants were granted continuing objections based on their previous
arguments, but, in light of its previous rulings, the trial court overruled the
objections. Sherman then testified to his opinions that the offenses were
committed for the benefit of the Country Boy Crips, and with the intent to
promote, further, or assist criminal conduct by the Country Boy Crips. He
also explained the basis of those opinions.
FN122: Counsel for Johnson objected that the question went
to the ultimate conclusion of law and fact, and was a matter
for the jury to decide. The court responded, "Talking about
membership, not intent or motive, so I'm going to overrule
the objection."

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This is the basis for Johnson's claim the trial court ruled Sherman
was not testifying to intent or motive even though Sherman did so testify.
When read in context, the ruling is not the contradiction Johnson would
lead us to believe. Rather, it is apparent the court was harkening back to
its lengthy discussion with counsel, outside the jury's presence,
concerning this court's opinion in People v. Killebrew (2002) 103
Cal.App.4th 644 (Killebrew), and what questions, under that opinion, could
properly be asked with respect to these specific defendants as opposed to
unspecified individuals or gang members in general.
The California Supreme Court recently disapproved any
interpretation of Killebrew barring or limiting the use of hypothetical
questions. (People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 (Vang).)
2.

Analysis

Section 186.22, subdivision (a) defines a substantive offense with
three elements. "Active participation in a criminal street gang, in the sense
of participation that is more than nominal or passive, is the first element ....
The second element is 'knowledge that [the gang's] members engage in or
have engaged in a pattern of criminal gang activity,' and the third element
is that the person 'willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang.' [Citation.]" (People v. Lamas
(2007) 42 Cal.4th 516, 523.) There is no requirement that the felonious
criminal conduct that is promoted, furthered, or assisted be gang related.
(People v. Albillar (2010) 51 Cal.4th 47, 51, 59 (Albillar).)
To establish the enhancement defined by subdivision (b) of section
186.22, "the prosecution must prove that the crime for which the
defendant was convicted had been 'committed for the benefit of, at the
direction of, or in association with any criminal street gang, [and that it was
committed] with the specific intent to promote, further, or assist in any
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criminal conduct by gang members.' [Citations.]" (Gardeley, supra, 14
Cal.4th at pp. 616-617.) There need not be an intent to promote, further,
or assist either gang-related conduct apart from the charged offenses, or a
gang. (Albillar, supra, 51 Cal.4th at pp. 51, 66-67.)[fn123]
FN123: After Albillar, cases such as Garcia v. Carey (9th Cir.
2005) 395 F.3d 1099, 1102-1104 and Briceno v. Scribner
(9th Cir. 2009) 555 F.3d 1069, 1078-1083 are no longer the
law to the extent they interpret section 186.22, subdivision
(b) as requiring proof the defendant had the specific intent to
facilitate gang members' criminal activities other than the
charged crime(s). (Emery v. Clark (9th Cir. 2011) 643 F.3d
1210, 1215.)
The special circumstance defined in section 190.2, subdivision
(a)(22) mandates a sentence of death or life in prison without the
possibility of parole where "[t]he defendant intentionally killed the victim
while the defendant was an active participant in a criminal street gang, ...
and the murder was carried out to further the activities of the criminal
street gang." Before a defendant can be penalized under this statute for
being an active participant in a criminal organization, he or she must be
shown to have had knowledge of the gang's criminal purposes. (People v.
Carr (2010) 190 Cal.App.4th 475, 487.) The requirement that the People
prove "'the murder was carried out to further the activities of the criminal
street gang'" "substantially parallels the language of section 186.22,
subdivision (b)(1), which authorizes a sentencing enhancement for
felonies 'committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members....'" (Id. at p. 488.)[fn124]
FN124: The statutes all require proof of the existence of a
criminal street gang. Accordingly, the prosecution is required
to prove "that the gang (1) is an ongoing association of three
or more persons with a common name or common
identifying sign or symbol; (2) has as one of its primary
activities the commission of one or more of the criminal acts
enumerated in the statute; and (3) includes members who
either individually or collectively have engaged in a 'pattern
of criminal gang activity' by committing, attempting to
commit, or soliciting two or more of the enumerated offenses
(the so-called 'predicate offenses') during the statutorily
defined period. [Citations.]" (Gardeley, supra, 14 Cal.4th at
p. 617, italics omitted.) As defendants implicitly concede the
evidence concerning the Country Boy Crips was sufficient to
establish these requirements, we do not discuss them
further.
Evidence of gang affiliation and activity, though potentially
prejudicial, is relevant and admissible when the reason for the underlying
crime is gang related. (People v. Samaniego (2009) 172 Cal.App.4th
1148, 1167; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
"'[B]ecause a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is
permitted in admitting evidence of its existence.' [Citations.]" (Gonzalez, at
p. 1550.)

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"California law permits a person with 'special knowledge, skill,
experience, training, or education' in a particular field to qualify as an
expert witness [citation] and to give testimony in the form of an opinion
[citation]. Under Evidence Code section 801, expert opinion testimony is
admissible only if the subject matter of the testimony is 'sufficiently beyond
common experience that the opinion of an expert would assist the trier of
fact.' [Citation.] The subject matter of the culture and habits of criminal
street gangs ... meets this criterion. [Citations.]" (Gardeley, supra, 14
Cal.4th at p. 617.) Included within "'culture and habits'" is "testimony about
the size, composition or existence of a gang [citations], gang turf or
territory [citations], an individual defendant's membership in, or association
with, a gang [citations], the primary activities of a specific gang [citations],
motivation for a particular crime, generally retaliation or intimidation
[citations], whether and how a crime was committed to benefit or promote
a gang [citations], rivalries between gangs [citation], gang-related tattoos,
gang graffiti and hand signs [citations], and gang colors or attire
[citations]." (Killebrew, supra, 103 Cal.App.4th at pp. 656-657, fns.
omitted.)
"[T]he decision of a trial court to admit expert testimony 'will not be
disturbed on appeal unless a manifest abuse of discretion is shown.'
[Citation.]" (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) "'[T]he
admissibility of expert opinion is a question of degree. The jury need not
be wholly ignorant of the subject matter of the opinion in order to justify its
admission; if that were the test, little expert opinion testimony would ever
be heard. Instead, the statute declares that even if the jury has some
knowledge of the matter, expert opinion may be admitted whenever it
would "assist" the jury. It will be excluded only when it would add nothing
at all to the jury's common fund of information ....' [Citation.]" (Id. at pp.
1299-1300.)
"Generally, an expert may render opinion testimony on the basis of
facts given 'in a hypothetical question that asks the expert to assume their
truth.' [Citation.] Such a hypothetical question must be rooted in facts
shown by the evidence, however. [Citations.]" (Gardeley, supra, 14 Cal.4th
at p. 618.) Although a trial court "should prevent the use of misleading or
unfair hypothetical questions." (People v. Wilson (1944) 25 Cal.2d 341,
348), the questioner is not required to disguise the fact that the questions
are based on the evidence adduced at trial (Vang, supra, 52 Cal.4th at p.
1041). Because a hypothetical question not based on the evidence is
irrelevant, and expert testimony not based on the evidence will not assist
the trier of fact, "the prosecutor's hypothetical questions [must] be based
on what the evidence showed these defendants did, not what someone
else might have done." (Id. at p. 1046.)
"Testimony in the form of an opinion that is otherwise admissible is
not objectionable because it embraces the ultimate issue to be decided by
the trier of fact." (Evid. Code, § 805.) Nevertheless, an expert's opinion "is
not admissible if it invades the province of the jury to decide a case.
'Undoubtedly there is a kind of statement by the witness which amounts to
no more than an expression of his general belief as to how the case
should be decided ....' [Citation.] Notwithstanding Evidence Code section
805, an 'expert must not usurp the function of the jury ....' [Citations.] [¶]
Expert opinions which invade the province of the jury are not excluded
because they embrace an ultimate issue, but because they are not helpful
(or perhaps too helpful). '[T]he rationale for admitting opinion testimony is
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that it will assist the jury in reaching a conclusion called for by the case.
"Where the jury is just as competent as the expert to consider and weigh
the evidence and draw the necessary conclusions, then the need for
expert testimony evaporates." [Citation.]' [Citations.] In other words, when
an expert's opinion amounts to nothing more than an expression of his or
her belief on how a case should be decided, it does not aid the jurors, it
supplants them." (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th
1155, 1182-1183.)
There is no hard-and-fast rule concerning when an expert's opinion
goes beyond embracing the ultimate issue and improperly invades the
province of the jury. As the California Supreme Court has said, "'We think
the true rule is that admissibility depends on the nature of the issue and
the circumstances of the case, there being a large element of judicial
discretion involved.... Oftentimes an opinion may be received on a simple
ultimate issue, even when it is the sole one, as for example where the
issue is the value of an article, or the sanity of a person; because it cannot
be further simplified and cannot be fully tried without hearing opinions from
those in better position to form them than the jury can be placed in.'
[Citations.]" (People v. Wilson, supra, 25 Cal.2d at p. 349.)
In keeping with the foregoing, a witness may not express an
opinion as to a defendant's guilt or innocence, or with respect to whether a
crime has been committed. (People v. Torres, supra, 33 Cal.App.4th at pp.
46-47.) Nonetheless, "[t]here are some crimes a jury could not determine
had occurred without the assistance of expert opinion as to an element of
the crime." (Id. at p. 47, fn. omitted.) Thus, for example, it has been held
proper for a trial court to permit an expert in the illegal distribution of
pharmaceutical drugs to opine that, under the facts of the hypothetical
question posed to him, the drugs were possessed for the purpose of illegal
street sales. (People v. Doss (1992) 4 Cal.App.4th 1585, 1596.) "Rarely, if
ever, does an expression of opinion by a so-called expert not amount to
that which either the court or jury might adopt as a basis for the ultimate
decision in the case. However, that does not mean that the witness is
deciding the case or that in so testifying he is usurping the functions of the
jury. He is merely giving an opinion, based upon his technical training,
which the court may or may not accept as testimony that is proper and
necessary to an enlightened consideration and a correct disposition of the
ultimate issue. [Citation.]" (Wells Truckways, Ltd. v. Cebrian (1954) 122
Cal.App.2d 666, 674.)
Considering Sherman's testimony and the trial court's rulings in
light of the foregoing principles, we find no abuse of discretion. Sherman
properly was allowed to state his opinions that defendants were active
members of the Country Boy Crip criminal street gang at the time of the
charged offenses, and that the offenses were committed for the benefit of
a criminal street gang. (People v. Garcia (2007) 153 Cal.App.4th 1499,
1512-1514; see People v. Lindberg, supra, 45 Cal.4th at pp. 48-50;
People v. Gonzalez, supra, 126 Cal.App.4th at pp. 1550-1551; People v.
Valdez (1997) 58 Cal.App.4th 494, 507-509.) He was also properly
permitted to express an opinion concerning intent. Significantly, he did not
give an opinion concerning the subjective intent of defendants on trial, but
rather answered hypothetical questions that paralleled the evidence
presented by the prosecution. (Compare Gonzalez, supra, 38 Cal.4th at p.
946 with In re Frank S. (2006) 141 Cal.App.4th 1192, 1195-1196, 11971198; see People v. Ferraez (2003) 112 Cal.App.4th 925, 928, 930-931
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[gang expert properly allowed to opine, based on hypothetical facts
paralleling evidence, that drugs in defendant's possession were intended
to be sold for benefit of or in association with gang, and that proceeds
would be used to benefit gang].)
Vang, supra, 52 Cal.4th 1038 is instructive. There, the challenged
hypothetical questions were designed to elicit the expert's opinions on
whether the crime was committed for the benefit of and in association with
or at the direction of a particular gang, and whether the charged assault
was gang motivated. (Id. at p. 1043.) The court stated, in part:
"To the extent Killebrew, supra, 103 Cal.App.4th 644,
purported to condemn the use of hypothetical questions, it
overlooked the critical difference between an expert's
expressing an opinion in response to a hypothetical question
and the expert's expressing an opinion about the defendants
themselves. Killebrew stated that the expert in that case
'simply informed the jury of his belief of the suspects'
knowledge and intent on the night in question, issues
properly reserved to the trier of fact.' [Citation.] But, to the
extent the testimony responds to hypothetical questions, as
in this case ..., such testimony does no such thing. Here, the
expert gave the opinion that an assault committed in the
manner described in the hypothetical question would be
gang related. The expert did not give an opinion on whether
defendants did commit an assault in that way, and thus did
not give an opinion on how the jury should decide the case.
"The trial court understood precisely the distinction between
(1) not permitting the expert to opine that the particular
defendants committed a crime for a gang purpose, and (2)
permitting the expert to express his opinion in response to
hypothetical questions....
"[There may be concern] that permitting these hypothetical
questions invades the province of the jury. However, as
noted, expert testimony is permitted even if it embraces the
ultimate issue to be decided. [Citation.] The jury still plays a
critical role in two respects. First, it must decide whether to
credit the expert's opinion at all. Second, it must determine
whether the facts stated in the hypothetical questions are the
actual facts, and the significance of any difference between
the actual facts and the facts stated in the questions. The
trial court instructed the jury on both of these roles....[fn125]"
(Vang, supra, 52 Cal.4th at pp. 1049-1050, fn. omitted.)
FN125: The trial court in the present case so instructed the
jury, as well.

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The court further stated: "Whether to accept the expert's opinion
and, if so, how to apply it to the actual case was for the jury to determine.
But the trial court properly permitted the questions and answers." (Vang,
supra, 52 Cal.4th at p. 1050, fn. 5.)

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Defendants say, however, that the testimony ran afoul of section

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106

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29. That statute provides: "In the guilt phase of a criminal action, any
expert testifying about a defendant's mental illness, mental disorder, or
mental defect shall not testify as to whether the defendant had or did not
have the required mental states, which include, but are not limited to,
purpose, intent, knowledge, or malice aforethought, for the crimes
charged. The question as to whether the defendant had or did not have
the required mental states shall be decided by the trier of fact."
Assuming the issue was preserved despite the lack of specific
objection based on the statute (see People v. Zepeda (2001) 87
Cal.App.4th 1183, 1208), we do not believe section 29 is applicable. There
was no testimony concerning any defendant's mental illness, mental
disorder, or mental defect. (See People v. Adan (2000) 77 Cal.App.4th
390, 393, fn. 3.) In our opinion, the last sentence of the statute cannot be
divorced from the first sentence, and, insofar as we can tell, the statute is
most usually invoked with respect to expert psychiatric or psychological
testimony. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 582583, overruled on another ground in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13; People v. Bordelon (2008) 162 Cal.App.4th
1311, 1315, 1326-1328; People v. Nunn (1996) 50 Cal.App.4th 1357,
1363-1365 & cases cited therein.)
We also conclude the trial court did not abuse its discretion by
permitting Sherman to testify concerning such matters as whether the
pattern of criminal activity was common knowledge and whether it was
uncommon for gang members to go into detail when bragging about their
crimes. We recognize that a person may be qualified as an expert on one
subject, yet not be qualified as an expert on matters beyond the scope of
that subject. (People v. Hill, supra, 191 Cal.App.4th at p. 1120.) Given
Sherman's extensive training and experience, however, the trial court did
not err by concluding he was adequately qualified to testify on the topics.
Moreover, in light of his frequent conversations with gang members, an
adequate foundation was laid. (See, e.g., Gardeley, supra, 14 Cal.4th at p.
620; People v. Hill, supra, 191 Cal.App.4th at pp. 1124-1125.)

27

Lastly, the test of sufficiency of the evidence is whether, reviewing
the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could
find the essential elements of the crimes, enhancements, and special
circumstances beyond a reasonable doubt. (People v. Alvarez, supra, 14
Cal.4th at p. 225; People v. Johnson (1980) 26 Cal.3d 557, 578; People v.
Augborne (2002) 104 Cal.App.4th 362, 371; accord, Jackson v. Virginia
(1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is
"reasonable, credible, and of solid value." (People v. Johnson, supra, 26
Cal.3d at p. 578.) An appellate court must "presume in support of the
judgment the existence of every fact the trier could reasonably deduce
from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An
appellate court must not reweigh the evidence (People v. Culver (1973) 10
Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve
factual conflicts, as these are functions reserved for the trier of fact (In re
Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review
applies regardless of whether the prosecution relies primarily on direct or
on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107,
1125.)

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Having concluded Sherman's opinions were properly admitted, we

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further conclude his testimony, coupled with the other evidence presented
at trial, is sufficient to uphold the jury's verdicts and special findings on the
charges and allegations under section 186.22, subdivisions (a) and (b)
and section 190.2, subdivision (a)(22). (See People v. Ferraez, supra, 112
Cal.App.4th at p. 931.)[fn126]

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FN126: We would reach this conclusion even if Sherman
should not have been permitted to offer his opinions on
intent. The erroneous admission of expert testimony is
assessed under the Watson standard (People v. Prieto,
supra, 30 Cal.4th at p. 247), and the evidence on the point
was overwhelming even without those pieces of opinion
testimony.

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People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 376-403.
2.

Analysis

9
Evidence erroneously admitted warrants habeas relief only when it results in the
10
denial of a fundamentally fair trial in violation of the right to due process. See Briceno v.
11
Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) citing Estelle v. McGuire, 502 U.S. 62, 6712
68 (1991). "[I]t is not the province of a federal habeas court to reexamine state-court
13
determinations on state-law questions." See Estelle at 67-68. In conducting habeas
14
review, a federal court is limited to deciding whether a conviction violated the
15
Constitution, laws, or treaties of the United States. Id. The court's habeas powers do not
16
allow for the vacatur of a conviction "based on a belief that the trial judge incorrectly
17
interpreted the California Evidence Code in ruling" on the admissibility of evidence. Id. at
18
72.
19
The United States Supreme Court has expressly left open the question of whether
20
the admission of propensity evidence violates due process. See Estelle, 502 U.S. at 75,
21
n.5; Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001). In Estelle, the Supreme
22
Court expressly refused to determine whether the introduction of prior crimes evidence
23
to show propensity to commit a crime would violate the Due Process Clause. Id.
24
("Because we need not reach the issue, we express no opinion on whether a state law
25
would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to
26
show propensity to commit a charged crime."); see also Alberni v. McDaniel, 458 F.3d
27
860, 866 (9th Cir. 2006) ("Estelle expressly left this issue an 'open question'"). Because
28
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the Supreme Court has specifically declined to address whether the introduction of

2

propensity evidence violates due process, Petitioner lacks the clearly established federal

3

law necessary to support his claims. Id.; see also Mejia v. Garcia, 534 F.3d 1036, 1046-

4

47 (9th Cir. 2008) (relying on Estelle and Alberni and concluding that the introduction of

5

propensity evidence under California Evidence Code § 1108 does not provide a basis for

6

federal habeas relief, even where the propensity evidence relates to an uncharged

7

crime); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court

8

"has not yet made a clear ruling that admission of irrelevant or overtly prejudicial

9

evidence constitutes a due process violation sufficient to warrant issuance of the writ.").

10

Accordingly, the state courts' rejection of Petitioner's claim could not have been

11

"contrary to, or an unreasonable application of, clearly established" United States

12

Supreme Court authority, since no such "clearly established" Supreme Court authority

13

exists. 28 U.S.C. § 2254(d)(1).

14

Nevertheless, there can be habeas relief for the admission of prejudicial evidence

15

if the admission was fundamentally unfair and resulted in a denial of due process.

16

Estelle, 502 U.S. at 72; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Jeffries v.

17

Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993); Gordon v. Duran, 895 F.2d 610, 613 (9th

18

Cir.1990). Constitutional due process is violated if there are no permissible inferences

19

that may be drawn from the challenged evidence. Jammal v. Van de Kamp, 926 F.2d

20

918, 919-20 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise

21

more than one inference, some permissible, some not." Id. at 920. "A habeas petitioner

22

bears a heavy burden in showing a due process violation based on an evidentiary

23

decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

24

Here, the California Court of Appeal appropriately found that the evidence was

25

properly admitted to allow the gang expert to determine whether Petitioner was a

26

member of a street gang or acted in furtherance of the street gang at the time of the

27

offense. On appeal, the court found that it was proper to allow the gang expert to "state

28

his opinions that defendants were active members of the Country Boy Crip criminal
109

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street gang at the time of the charged offenses, and that the offenses were committed

2

for the benefit of a criminal street gang." Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at

3

376-403 (citing People v. Garcia 153 Cal.App.4th 1499, 1512-1514 (2007)). The state

4

The state standard applied in this case parallels federal law which holds that evidence of

5

gang affiliation is admissible when it is relevant to a material issue in the case. United

6

States v. Easter, 66 F.3d 1018, 1021 (9th Cir. 1995) (citing United States v. Abel, 469

7

U.S. 45, 49 (1984) (finding gang evidence admissible to show bias)). The testimony of

8

the gang expert was introduced to establish permissible inferences that were essential to

9

the prosecution's theory. See Jammal, 926 F.2d at 919. These inferences include that

10

Petitioner was part of a criminal street gang and Petitioner's intent. See Abel, 469 U.S. at

11

49. The California Court of Appeal decision denying this claim was not contrary to clearly

12

established Supreme Court precedent. Accordingly, Petitioner is not entitled to habeas

13

relief.
Claim Five – Wheeler/Batson Challenge

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E.

15

Petitioner presents two separate Wheeler/Batson claims. First he claims that his

16

right to a fair and impartial jury under the Sixth Amendment was denied based on

17

removal of jurors who had visual and hearing impairments. Next, he claims his Sixth

18

Amendment rights were violated by the removal of African American jurors. (Pet. at 34-

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35.)

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1.

State Court Decision

21

Petitioner presented this claim by way of direct appeal to the California Court of

22

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

23

appellate court and summarily denied in subsequent petition for review by the California

24

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

25

opinion is summary in nature, this Court "looks through" that decision and presumes it

26

adopted the reasoning of the California Court of Appeal, the last state court to have

27

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

28

In denying Petitioner's claim, the Fifth District Court of Appeal explained:
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C.

2

Defendants challenge the trial court's denial of their BatsonWheeler[fn75] motions, which were predicated on the prosecution's
peremptory excusals of physically disabled and African-American
prospective jurors.[fn76] The People say the challenged peremptory
strikes were constitutionally permissible.

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Batson-Wheeler

FN75: Batson v. Kentucky (1986) 476 U.S. 79 (Batson);
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Wheeler
has been overruled in part by Johnson v. California (2005)
545 U.S. 162 (Johnson).
FN76: Defendants are African-American. Although there is
no indication any is hearing impaired or otherwise physically
disabled, a defendant and prospective juror(s) alleged to
have been wrongly excused need not be members of the
same group in order for the defendant to complain. (Powers
v. Ohio (1991) 499 U.S. 400, 416.)
"The purpose of peremptory challenges is to allow a party to
exclude prospective jurors who the party believes may be consciously or
unconsciously biased against him or her." (People v. Jackson (1992) 10
Cal.App.4th 13, 17.) "There is a rebuttable presumption that a peremptory
challenge is being exercised properly, and the burden is on the opposing
party to demonstrate impermissible discrimination. [Citations.]" (People v.
Bonilla (2007) 41 Cal.4th 313, 341.)
Peremptory challenges may properly be used to remove
prospective jurors believed to entertain specific bias, i.e., bias regarding
the particular case being tried or the parties or witnesses thereto.
(Wheeler, supra, 22 Cal.3d at p. 274.) However, "'[a] prosecutor's use of
peremptory challenges to strike prospective jurors on the basis of group
bias — that is, bias against "members of an identifiable group
distinguished on racial, religious, ethnic, or similar grounds" — violates the
right of a criminal defendant to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the California
Constitution. [Citations.] Such a practice also violates the defendant's right
to equal protection under the Fourteenth Amendment to the United States
Constitution. [Citations.]' [Citation.]" (People v. Bell (2007) 40 Cal.4th 582,
596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d
at pp. 276-277.)[fn77]
FN77: Defendants raise a separate equal protection claim
under the state Constitution. "Our state constitutional
guarantee of equal protection (Cal. Const., art. I, § 7) is
substantially equivalent to that contained in the United
States Constitution (U.S. Const., 14th Amend.), and our
analysis of state and federal equal protection claims is
substantially the same. [Citations.]" (People v. Hofsheier
(2006) 37 Cal.4th 1185, 1211; accord, People v. Leng (1999)
71 Cal.App.4th 1, 11; see People v. Taylor (2001) 93
Cal.App.4th 318, 322; In re Evans (1996) 49 Cal.App.4th
1263, 1270.) Accordingly, defendants' contention is
subsumed within our existing discussion, and we do not
111

separately address it.

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"The United States Supreme Court has ... reaffirmed that Batson
states the procedure and standard to be used by trial courts when motions
challenging peremptory strikes are made. 'First, the defendant must make
out a prima facie case "by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose." [Citations.] Second,
once the defendant has made out a prima facie case, the "burden shifts to
the State to explain adequately the racial exclusion" by offering
permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f
a race-neutral explanation is tendered, the trial court must then decide ...
whether the opponent of the strike has proved purposeful racial
discrimination." [Citation.]' [Citation.]" (People v. Avila, supra, 38 Cal.4th at
p. 541, quoting Johnson, supra, 545 U.S. at p. 168.) The California
Supreme Court has "endorsed the same three-part structure of proof for
state constitutional claims. [Citations.]" (People v. Bell, supra, 40 Cal.4th
at p. 596; see Wheeler, supra, 22 Cal.3d at pp. 280-282.)
With these principles in mind, we turn to the case before us.

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1.

Physical Disabilities

a.

Background

1.

H.D.

Prospective Juror H.D. was employed as a caterer. She was also a
student at Bakersfield Adult School, where she was halfway to getting her
high school diploma and was taking regular high school classes. In
addition, she taught a parenting class at a counseling center. She helped
the director with parents who had lost their children, especially through
adoption. Her son was being raised by her sister. She had two brothers in
gangs, but had no contact with them. She had no prior jury service, no
close friends or relatives in law enforcement, and did not know anyone
involved in the trial. She did not believe there was anything about the
nature of the case or charges that would affect her ability to be fair and
impartial. Her home had been burglarized about eight months earlier, and
she had pled no contest to misdemeanor disturbing the peace about 15
years earlier. She had never had an unpleasant experience with law
enforcement. She promised she could and would be fair to both sides in
this case.
Because of her eyesight and hearing, H.D. did not watch much
television or read much of the paper, and so had not heard anything about
this case other than what she had heard in court. She had heard all the
questions asked by the attorneys of, and answers given by, her fellow
prospective jurors.
H.D. initially could not hear the prosecutor, whose microphone may
not have been on at the start of the prosecution's voir dire. When H.D.
erroneously called the prosecutor "sir" and then apologized, the
prosecutor said, "There are a lot of them here."[fn78] H.D. responded,
"They're handsome too."
FN78: All three defense attorneys, and one of the two
prosecutors, were male. The lead prosecutor was female.
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(For the most part, we refer to "the prosecutor" as a single
entity.)
H.D. was using a device to help her hear better, and she confirmed
she had been able to hear the proceedings.[fn79] She was partially
sighted, but could see the attorneys and the wall behind them. She had
trouble with small things and used a magnifier to read small print. If she
brought her magnifier, she would be able to read something like a
typewritten document. It would not be too difficult for her to read things in
this case; she was the kind of person, she told the prosecutor, who,
whatever was given, would do her work. She was very independent, too.
FN79: For best reception, the device had to be kept zeroed
in on the other half of the court's apparatus for hearingimpaired jurors, which was situated above the judge's head.
Outside the presence of the prospective jurors, the prosecutor
related that she had "some concerns" about H.D.'s mental abilities. The
prosecutor felt some of H.D.'s answers were somewhat appropriate, but
that a lot were inappropriate. The prosecutor wanted to ask additional
questions, and it was agreed H.D. would be questioned in chambers.
During this further questioning, H.D. related that she had never been
under a conservatorship and did not have a payee for the SSI benefits she
received due to her eyesight. She was prohibited from having a driver's
license due to her eyesight, but could get a ride or take the bus to court.
On a couple of occasions during this questioning, H.D. had to ask
the prosecutor to repeat a question. At one point, the prosecutor asked if
H.D. remembered the previous discussion of the People's burden of proof
in the case. H.D. answered affirmatively; when asked what that burden
was, H.D. answered, "I'm okay with that." She then asked the prosecutor
to repeat the question, and this time responded, "I have no burden of
proof." Once reminded of the People's burden, H.D. said she had no
problem with it. The prosecutor then asked if H.D. remembered the
discussion about past misconduct of defendants, and that it could be used
for specific purposes. When H.D. said yes, the prosecutor asked if she
remembered what those purposes were. H.D. responded, "Only on
something that's related to that and no other."
The prosecutor then questioned H.D. about her comment that the
defense attorneys or the gentlemen at the table were handsome. Asked
which ones she thought were good looking, H.D. responded that they
were all good looking. She also told Lee's attorney he had a good smile.
When the lead prosecutor asked what about the male prosecutor, H.D.
stated that he had a beard. Asked who did, H.D. referred to Lee's counsel
and said it was white. She thought about Christmastime when she saw it,
because she thought he looked like Santa Claus. Asked if that would
cause her to favor his side, she said no. It was just something nice on her
part. It was a joke, and she did not feel she was rooting for either side.
Questioning then passed to the defense. H.D. apparently could not
hear counsel for Dixon until he turned on his microphone. H.D. related that
she had no problem seeing him at counsel table, that she was born
completely blind and partially deaf, and that she had undergone many
surgeries in her eyes and ears. When she went to school, she had trouble
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learning because of her hearing and eyesight. She did not get hearing
aids until she was 19. They worked well, but it was difficult for her to hear
in court with just her hearing aid because of interference from the
background sound. She could hear everything with the court's device,
however. H.D. felt that in the jury room, she would have no problem
talking to the other jurors or listening to them. She felt she was on an
equal basis with them and wanted to be treated that way.
Defense counsel all expressly passed for cause, and the
prosecutor did not challenge for cause. The court found H.D. qualified to
serve as a juror, stating: "I listened to her. I watched her body language.
And sure, she has some challenges, but she's been able to overcome
those handicaps. I don't know if I could have done as well as she's done."
It also observed that the judicial branch's goals included fairness, diversity,
and access.
The next peremptory challenge belonged to the People, and the
prosecutor excused H.D. Told by the court that she was excused, H.D.
responded, "Who, me?" Counsel for Johnson then asked to take up a
matter at sidebar. When he asked if H.D. could stay for a moment, a
prospective juror said, "She can't hear you." The clerk said she would take
care of H.D.
After a brief conference, the court asked the prospective jurors,
including H.D., to leave the courtroom while it heard a motion. Outside
their presence, it asked if counsel for Johnson had any support for the
notion that persons with visual and hearing impairments were cognizable
groups for purposes of the Batson-Wheeler motion he had made at
sidebar. Counsel responded that it was his understanding being blind or
hearing impaired were not appropriate grounds upon which to challenge a
prospective juror, that H.D. could overcome her impairments with certain
aids, and that she could keep an open mind.
The court expressed its feeling that H.D. was not a member of a
cognizable group for Batson-Wheeler purposes. The prosecutor stated
that assuming a cognizable class existed, no prima facie showing had
been made that H.D. was excused because of her physical disabilities.
The prosecutor declined to offer reasons for excusing H.D. absent a
request by the court because she did not think a prima facie case had
been shown, but she stated for the record that after the sidebar was
requested, H.D. was wandering around the courtroom and tried to go in
the back with the court and counsel. The court noted that she did not have
her hearing-impaired device with her. The prosecutor agreed, and pointed
out that she tried to go behind defendants, then toward an exit door, and
another juror had to catch her and bring her back in. The prosecutor
asserted her confusion was obvious, and that if someone merely does not
know what is happening, that person does not try to go back into the
judge's chambers.
The court invited counsel to address whether a prima facie case of
systematic exclusion had been shown. Counsel for Johnson argued that
he saw no reason for excusing H.D. other than her special needs, as she
did not show a preference for either side. The court stated: "I don't feel
that she's part of a cognizable group, but I can see good arguments for
why she should be in a cognizable group. [¶] But based on what I've seen
here, I don't feel that a prima facie case of group bias has been
114

3

established in this case or evidence sufficient to permit me to draw an
inference that discrimination has occurred in this case." Asked about the
possibility counsel might find case law showing she was part of a
cognizable group, the court stated it was assuming she was a member of
a cognizable group, and was making that finding. Accordingly, it denied
the Batson-Wheeler motion for failure to show a prima facie case.

4

2.

5

Prospective Juror M.R., a former school teacher, had been retired
for about 15 years. She had prior jury service in both criminal and civil
cases. She knew of no close friends or relatives in law enforcement, did
not know anyone involved in the case, and saw nothing about the nature
of the case or charges that would affect her ability to be fair and impartial.
She had no knowledge of any pretrial publicity or the facts of this case.
She heard all the questions asked of her fellow prospective jurors and the
answers given; they brought nothing to mind that she wanted to discuss.

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When the prosecutor asked in what county M.R. had taught, M.R.
responded it was in Los Angeles County. When the prosecutor asked if
she was "from L.A.," M.R. responded, "Am I married?" When the question
was repeated, M.R. began her answer by calling the prosecutor "Dear." A
short time later, the prosecutor asked what brought M.R. and her husband
to Kern County. M.R. answered, "Fourteen years." She subsequently
echoed several of the prosecutor's questions, suggesting she did not hear
them well.[fn80] Asked if she knew anything about gangs in Kern County
or elsewhere, M.R. related that she had read a little bit about them in the
paper, but not so much that she knew about them. She did not think she
had developed an opinion about them. When the prosecutor then said
jurors could not consider penalty or punishment when deliberating, M.R.
responded that she could not hear the prosecutor. A short time later, she
said she was having "a terrible time" hearing the prosecutor. She found it
"a little better" when the prosecutor spoke in the microphone "up close."
FN80: For example, when the prosecutor asked, "What does
he [M.R.'s son] do for a living?" M.R. answered, "What does
he do?"

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M.R.

The prosecutor and counsel for Johnson passed for cause, as did
counsel for Dixon after further questioning. Counsel for Lee moved around
to ascertain where M.R. could best hear him. M.R. said she did not think it
would interfere with her ability to hear everything if an attorney were to
walk from the witness box to the projector and point to something being
projected without wearing a microphone. M.R. promised that she would
raise her hand every time she did not hear a question or answer. She also
related that she had a hearing device, but did not have the batteries
needed for it at that time. She promised to get them over the weekend.
Offered use of the court's hearing-impaired device or to have the court
bring batteries, M.R. declined, stating she would bring her own hearing
aid.

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Counsel for Lee passed for cause. The next challenge was with the
People; the prosecutor excused M.R. No objection was raised, nor was
the Batson-Wheeler motion renewed.

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b.

Analysis
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"In order to make a prima facie showing, 'a litigant must raise the
issue in a timely fashion, make as complete a record as feasible, [and]
establish that the persons excluded are members of a cognizable
class.'[fn81] [Citation.] The high court [has] explained that 'a defendant
satisfies the requirements of Batson's first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination
has occurred.' [Citation.] 'An "inference" is generally understood to be a
"conclusion reached by considering other facts and deducing a logical
consequence from them."' [Citation.]" (People v. Gray (2005) 37 Cal.4th
168, 186; Johnson, supra, 545 U.S. at pp. 168-170 & fn. 4; Batson, supra,
476 U.S. at p. 96.)
FN81: We have been unable to find any case directly holding
that the physically disabled are a cognizable class for Batson
and/or Wheeler purposes. In United States v. Watson (D.C.
Cir. 2007) 483 F.3d 828, 829-835, a case dealing with
visually impaired prospective jurors, the federal court
determined that disability was not to be accorded heightened
scrutiny for equal protection analysis. In People v. Green
(Cty. Ct. 1990) 561 N.Y.S.2d 130, 131, 132-133, a lower
court found a peremptory challenge intended to eliminate a
prospective juror solely because she could not hear, to
violate New York's state constitution. The soundness of
Green's analysis was questioned in Lawler v. MacDuff
(Ill.Ct.App. 2002) 779 N.E.2d 311, 320. We assume, for
purposes of our analysis, that the physically disabled are a
cognizable class.
"Though proof of a prima facie case may be made from any
information in the record available to the trial court, [the California
Supreme Court has] mentioned 'certain types of evidence that will be
relevant for this purpose. Thus the party may show that his opponent has
struck most or all of the members of the identified group from the venire,
or has used a disproportionate number of his peremptories against the
group. He may also demonstrate that the jurors in question share only this
one characteristic — their membership in the group — and that in all other
respects they are as heterogeneous as the community as a whole. Next,
the showing may be supplemented when appropriate by such
circumstances as the failure of his opponent to engage these same jurors
in more than desultory voir dire, or indeed to ask them any questions at
all. Lastly, ... the defendant need not be a member of the excluded group
in order to complain of a violation of the representative cross-section rule;
yet if he is, and especially if in addition his alleged victim is a member of
the group to which the majority of the remaining jurors belong, these facts
may also be called to the court's attention.' [Citations.]" (People v. Bell,
supra, 40 Cal.4th at p. 597.)
"When the trial court concludes that a defendant has failed to make
a prima facie case, we review the voir dire of the challenged jurors to
determine whether the totality of the relevant facts supports an inference
of discrimination. [Citations.]" (People v. Lancaster (2007) 41 Cal.4th 50,
74.) We find no such inference here.
The information elicited during voir dire established ample
disability-neutral reasons for excusing H.D. (See People v. Bonilla, supra,
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41 Cal.4th at p. 343.) For instance, her lack of education made her a lessthan-desirable juror for a complex case such as this. She had brothers
who were gang members and had been in and out of prison, and she
herself had a prior misdemeanor conviction. (See People v. Davis, supra,
46 Cal.4th at p. 584.) More importantly, a number of her answers were
inappropriate, and the prosecutor was not required to accept the
explanation that H.D. was joking with regard to her statements about
defense counsel. In addition, the record supports the prosecutor's claim
that H.D. was confused for reasons beyond her hearing impairment when
the sidebar conference was called, a claim the trial court was in the best
position to evaluate.[fn82] In light of H.D.'s answers and behavior, we
decline to equate the prosecutor's questioning her mental abilities, or
peremptorily excusing her, with bias or the stereotyping of people with
disabilities.
FN82: In order to make as full a record as possible in
Batson-Wheeler proceedings, the California Supreme Court
has encouraged trial courts to solicit explanations for
contested peremptory challenges from prosecutors, even in
the absence of a prima facie showing. Although the
prosecutor here was within her rights to decline to state her
reasons unless and until the court found a prima facie case,
her voluntary decision to do so would not have constituted
an admission or concession that a prima facie case existed,
and so would not have converted a first-stage BatsonWheeler case into a third-stage one. (People v. Howard
(2008) 42 Cal.4th 1000, 1020; People v. Zambrano (2007)
41 Cal.4th 1082, 1105, fn. 3, disapproved on another ground
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendants say we should consider the prosecutor's excusal of
M.R. in determining whether there was sufficient evidence to support an
inference of discriminatory intent. We decline to do so, because
defendants did not renew their motion following her excusal and so failed
to preserve the issue for appeal. "[T]he trial court's finding is reviewed on
the record as it stands at the time the Wheeler/Batson ruling is made. If
the defendant believes that subsequent events should be considered by
the trial court, a renewed objection is required to permit appellate
consideration of these subsequent developments." (People v. Lenix (2008)
44 Cal.4th 602, 624; see also People v. Hartsch (2010) 49 Cal.4th 472,
490, fn. 18; People v. Irvin (1996) 46 Cal.App.4th 1340, 1352.) Defendants
claim any further objection would have been futile because it would not
have changed the trial court's finding that people with disabilities are not a
cognizable group for Batson-Wheeler purposes. This assertion ignores the
fact the trial court, while expressing doubt that persons with physical
disabilities constituted a cognizable group, made an express finding that
H.D. was indeed part of a cognizable group but that no prima facie case
had been shown. Under these circumstances, it would hardly have been
futile to renew a motion following the presentation of circumstances
defendants could have used as additional evidence in support of a prima
facie showing.[fn83]
FN83: We do not find counsel ineffective for failing to renew
the motion, because the record does not affirmatively show
counsel had no rational tactical purpose for the omission.
(People v. Jackson (1989) 49 Cal.3d 1170, 1202; see
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Were we to consider the prosecutor's excusal of M.R., we would
still find no inference of discriminatory intent. "'[E]ven the exclusion of a
single prospective juror may be the product of an improper group bias. As
a practical matter, however, the challenge of one or two jurors can rarely
suggest a pattern of impermissible exclusion.'" (People v. Bell, supra, 40
Cal.4th at p. 598.) Defendants say H.D. and M.R. were the only remaining
potential jurors with disabilities, but we do not know this to be true.
Moreover, we decline to take into account challenges for cause in
determining whether the prosecution removed all prospective jurors with
disabilities from the panel, thereby evidencing discriminatory intent, as
defendants apparently would have us do: The excusal of a prospective
juror whose physical disabilities would interfere with jury service simply
does not raise an inference of discrimination, alone or in combination with
other circumstances. Similarly, the fact that a prospective juror was not
subject to exclusion for cause does not support an inference that the
exercise of a peremptory challenge against him or her was motivated by
group bias. (People v. Cornwell (2005) 37 Cal.4th 50, 70, disapproved on
another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
Additionally, voir dire elicited disability-neutral reasons for excusing
M.R. For instance, any prosecutor might have been concerned about her
not having developed any opinion about gangs despite having lived in Los
Angeles and Kern Counties. In addition, questions remained about the
extent of her hearing problem and its potential impact on her abilities as a
juror, since she neither got batteries for her own hearing aid despite
necessarily knowing she was coming to court for jury service, nor
accepted the court's offer of the use of its device. Under the
circumstances, the prosecutor was not required to assume M.R. would be
able adequately to hear everything, or that she would carry through on her
promise to raise her hand every time she could not.

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The trial court did not err by finding no prima facie case of
discrimination was shown. Accordingly, having assumed for purposes of
our analysis that the physically disabled constitute a cognizable group for
Batson-Wheeler purposes, we need not determine whether that is indeed
so.

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2.

Race

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a.

Background

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Prospective Juror E.B. had been employed as a derrick hand on a
drilling rig in the oil fields for approximately three years. E.B. was single,
had no prior jury service, and had no close friends or relatives in law
enforcement. Asked if there was any reason he could not be fair and
impartial, E.B. answered no, but, when the court noted he had paused,
stated, "I just want to go back to work, pretty much." E.B. explained that
he normally worked, and was paid for, a 12-hour tour, but this was
decreased to eight hours when he was on jury duty. Asked if he would be
able to get by financially if he served on the jury, he responded, "I don't
know. I got a lot of bills."

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The prosecutor questioned E.B. further about his financial situation
and ascertained that E.B. would be losing substantially more than a third
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of his paycheck if he did not receive overtime pay for the extra four hours
per tour. Asked if he could weather that kind of pay cut if the trial went into
January, E.B. answered, "I don't know. I have to see what my check is like
Friday." E.B. did not think he would be worrying about his finances rather
than giving his full attention to the case. He acknowledged, however, that
because his shift was four days on, four days off, there might be times
when he would be working two 12-hour days on the weekend.
E.B. was not familiar with MySpace or Facebook. He liked to watch
sports on television, and sometimes a show called "Wife Swap." He did
not really like to read, as he read enough at work. Noting that E.B.
appeared to be similar in age to defendants, the prosecutor asked if he
was concerned about any kind of sympathy he might have toward them.
E.B. responded that he did not have any sympathy. Asked about victims
who might be around his age, he said, "I don't know them."
The prosecutor then called E.B.'s attention to the prior discussion
about the standards used for evaluating witnesses, and asked if he had
ever been in a situation at work where he had to evaluate whether
someone was telling him the truth. When E.B. answered affirmatively, the
prosecutor asked what sorts of situations. E.B. answered, "Just make sure
they did their job, because most of the time they lie to you trying to just —
you have to go and check it." E.B. explained that he was in charge of two
other people on the job. Asked what kind of responsibilities he would have
in a situation in which, for example, one of his employees was a couple of
hours late and had obviously been drinking, E.B. said he would have no
responsibilities, as he was just supposed to make sure they did their job
and to keep them busy.
The prosecutor then asked what type of responsibilities E.B. had if
there were problems with the people he supervised. This ensued:
"Q. Well, do you have any responsibilities for discipline, for
instance?
"A. If they talk too crazy or something to you crazy, just tell
them to meet you after work. [¶] ... [¶]
"Q. Like to settle it in the parking lot kind of thing?
"A. Yeah. [¶] ... [¶]
"Q. And what if someone that you're supposed to tell them
what to do, what if they don't do what they're supposed to,
what are you supposed to do?
"A. Just cuss them out. Just let them know what's up. They
gotta respect what your position is. If not, you just try to send
them home.
"Q. Does that involve any paperwork? Do you have to fill out
a — you know, write some paper on them about some
problem you have with them?
"A. No, I don't have to. Just keep yelling at them all day until
you make them quit.
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"Q. Do you like that part of your job?

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"A. Not really."

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E.B. subsequently confirmed that he believed he would be able to
judge which witnesses were telling the truth and which were lying. He was
not familiar with the state's gang laws, did not pay attention to them, and
did not watch or follow the news. It did not cause him any concern when
he heard there would be evidence in this case about previous convictions;
he did not think anything when he heard that. It did not bother him at all.
The judge's explanation of how that evidence would be evaluated and
used seemed fair.
When counsel for Dixon noted that E.B. spoke softly, E.B.
responded that he was nervous. He felt, however, that he would be able to
express his opinions to the other jurors during deliberations, as well as to
listen to their opinions and change his if he found they were right. He
would also be able to hold on to his opinion if he felt he was right.
Counsel for Lee questioned E.B. further about how he handled
those he supervised. This ensued:
"Q. And taking them down to the parking lot is a way to take
them apart and tell them what's up. If they want to keep
making that kind of money they don't really have a choice.
They have to do what you want them to do. Right?
"A. Yes.

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"Q. Kind of like kicking them in the butt, so to speak. Kind of
like riding them during the day, like you said, right?

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"A. Yes.

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"Q. If you don't want to do the job that's up here, then
maybe we can find you some really dirty job and change
your mind about being some part of the team, that kind of
thing?

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"A. Yeah.

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"Q. You didn't mean you'd ask somebody to come out in the
parking lot so you could whoop them, right?

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"A. Sometimes you have to do that. [¶] ... [¶]

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"Q. Who wins those things?

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"A. You just don't tell nobody."

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All counsel passed for cause. Later, however, the People
peremptorily excused E.B., prompting defendants to object to what they
asserted was the systematic exclusion of African-Americans and
minorities. Counsel for Johnson pointed to the excusal of J.C., an AfricanAmerican male; C.A., a Hispanic-surnamed female; J.H., an African120

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American male; and E.B., an African-American male. Counsel for Lee
added that the challenge to E.B. was the prosecutor's 10th, and of the 10
challenged, three were African-American. The court estimated that there
were seven or eight African-American prospective jurors, including one
currently in the box (Juror No. 1336880). Counsel for Lee argued that a
comparison of the percentage of African-Americans in the venire with the
percentage of African-Americans stricken by the prosecution alone gave
rise to at least the inference required to show a prima facie case.
The prosecutor argued that no prima facie case had been shown,
as the defense had not met its burden of showing there was a
discriminatory purpose in the excusing of E.B. She noted that the People
had excused people of all races from the jury, as had the defense.
Counsel for Johnson responded that of the prosecution's 10 challenges,
seven had been exercised against minorities.
The court found the defense had established an inference that the
persons named by counsel for Johnson were challenged because of their
group association of being Hispanic or African-American, and it asked the
prosecutor to explain the challenges. When the prosecutor asked if she
was to explain only with respect to E.B., the court answered affirmatively,
saying that was the challenge. The prosecutor then stated E.B. was
excused because the prosecution believed he was very young, had limited
life experience, was single, had no children, had no post-high school
education, did not look at the news and was unaware of the circumstances
in the news with respect to the current world, was uncomfortable and
fidgeting while being questioned, mumbled, was very nervous, was very
immature in failing to check out the financial consequences to him of jury
duty, and most of all, solved workplace disputes in a completely
inappropriate manner. The prosecutor argued that violence in the
workplace was inappropriate even in the oil fields, and that E.B. was not
ashamed of resorting to violence to resolve his disputes. The prosecutor
also asserted that she felt E.B. was cavalier in some of his answers about
Dixon's prior conviction, and she thought his style of dress — wearing a
black T-shirt with a large skull on the front in a murder case, and sagging
pants — was inappropriate and immature and showed a lack of respect for
the system. The prosecutor reiterated that this was a case involving
people taking their disputes to the street in retaliation, and E.B.'s manner
of dealing with people at work showed him to have no place on the jury.
The prosecutor felt him to be a "very immature and mean" person.
Counsel for Lee argued that law enforcement and military
academies used tactics such as cursing and beating to instill discipline
and prepare students for the dangers of the job. He also argued that
people dressed differently, and that clothing should not be the hallmark of
showing respect in the courtroom. Counsel also asked if the court saw
fidgeting. Counsel for Dixon argued that E.B. said he could sit on the jury
financially, and that this should be taken at face value. When counsel
started to discuss the T-shirt, the court stated it had not seen the garment
and so would not rely on it. As for fidgeting, counsel pointed out E.B. said
he was nervous, and that other potential jurors were nervous. Counsel
also argued that E.B. was not as young as the prosecutors believed, but
rather was in his mid-20's. Counsel further argued that just because E.B.
could not always be heard did not make him different from a number of
other people. Counsel for Johnson joined in the other defense comments,
and argued E.B.'s body language did not reflect an aggressive demeanor,
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and that E.B. was polite, attentive, and answered appropriately. He further
did not show aggression when interacting with other prospective jurors.
The prosecutor responded that while he was talking to E.B., E.B.
never stopped moving from side to side in his seat. As for his financial
situation, E.B. would not know if there was a problem until he received his
paycheck on Friday.[fn84] The prosecutor argued that E.B. had bills to pay
and responsibilities, yet had not taken the step of calling his employer to
find out what his paycheck would be, and that this was indicative of
immaturity. The prosecutor further pointed to E.B.'s manner of exercising
his workplace authority, specifically in terms of committing a crime and
then covering it up.

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FN84: The motion was heard on Wednesday, December 3, 2008.

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After counsel for Lee responded, the court ruled:

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"Find that the reasons given for the challenge exercised on
[E.B.] are group neutral. I find specifically that the
prosecution was sincere in offering their challenges based
on demeanor of [E.B.] based upon his young age, his
immaturity, and indication of the type of way in which he
settles disputes or exercises control by the exercise of selfhelp mechanisms in regards to co-employees on the drilling
rig, his body language, his movement in his seat in shifting of
position. All I think are indicative, especially the way in which
he indicates he would discipline or handle employees in the
workplace.

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"Maybe if this was in a restaurant or a bar setting or in a
party setting or in some social gathering, but the way in
which he would handle employees who were either under
the influence or not performing to his expectation indicate to
me how a sincere ... party such as the prosecution could
conclude that he is immature in the way in which he would
exercise discipline and control other co-employees. So the
challenge is denied."

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b.

Analysis

The trial court ruled for the defense in step one of the BatsonWheeler analysis by finding a prima facie case of discrimination with
respect to African-Americans and Hispanics.[fn85] African-Americans are
a cognizable group (People v. Alvarez, supra, 14 Cal.4th at p. 193), and
we assume substantial evidence supports the court's determination (see
People v. Silva (2001) 25 Cal.4th 345, 384; Alvarez, supra, at p. 197).
Accordingly, we move to step two.
FN85: Defendants do not claim the trial court erred by limiting
the hearing to the peremptory excusal of E.B. despite the
broader finding with respect to a prima facie showing.
Accordingly, our analysis concerns only E.B.
At step two, the prosecutor must come forward with a race-neutral
explanation for the challenged excusal. (People v. Silva, supra, 25 Cal.4th
at p. 384.) "A neutral explanation ... means an explanation based on
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something other than the race of the juror. At this step of the inquiry, the
issue is the facial validity of the prosecutor's explanation. Unless a
discriminatory intent is inherent in the prosecutor's explanation, the reason
offered will be deemed race neutral." (Hernandez v. New York (1991) 500
U.S. 352, 360 (plur. opn. of Kennedy , J.).) At this stage, the explanation
need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514
U.S. 765, 767-768.) "'The justification need not support a challenge for
cause, and even a "trivial" reason, if genuine and neutral, will suffice.'
[Citation.] A prospective juror may be excused based upon facial
expressions, gestures, hunches, and even for arbitrary or idiosyncratic
reasons. [Citations.] Nevertheless, although a prosecutor may rely on any
number of bases to select jurors, a legitimate reason is one that does not
deny equal protection. [Citation.]" (People v. Lenix, supra, 44 Cal.4th at p.
613, italics omitted.)
Whether the prosecutor has offered a race-neutral reason for his or
her challenges is a question of law subject to our independent review.
(People v. Alvarez, supra, 14 Cal.4th at p. 198, fn. 9; Paulino v. Harrison
(9th Cir. 2008) 542 F.3d 692, 699.) As no discriminatory intent was
inherent in any of the prosecutor's reasons, we conclude those reasons
were race neutral. (Hernandez v. New York, supra, 500 U.S. at p. 360
(plur. opn. of Kennedy , J.).) Hence, the prosecution met its burden with
respect to step two of the Batson-Wheeler analysis.
Accordingly, we move to step three. At this stage of the analysis,
the trial court must decide whether the opponent of the peremptory strikes
has proved purposeful racial discrimination by a preponderance of the
evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins
(2007) 147 Cal.App.4th 992, 997-998.) The persuasiveness of the
proffered justification now becomes relevant (Johnson, supra, 545 U.S. at
p. 171), as implausible or fantastic justifications will be found to be
pretexts for purposeful discrimination (Purkett v. Elem, supra, 514 U.S. at
p. 768). "What is required are reasonably specific and neutral explanations
that are related to the particular case being tried." (People v. Johnson
(1989) 47 Cal.3d 1194, 1218.)

27

Once the prosecutor comes forward with such an explanation, the
trial court must then satisfy itself that the explanation is genuine. (People
v. Hall (1983) 35 Cal.3d 161, 167.) "In [this] process, the trial court must
determine not only that a valid reason existed but also that the reason
actually prompted the prosecutor's exercise of the particular peremptory
challenge." (People v. Fuentes (1991) 54 Cal.3d 707, 720.) "This
demands of the trial judge a sincere and reasoned attempt to evaluate the
prosecutor's explanation in light of the circumstances of the case as then
known, his knowledge of trial techniques, and his observations of the
manner in which the prosecutor has examined members of the venire and
has exercised challenges for cause or peremptorily, for 'we rely on the
good judgment of the trial courts to distinguish bona fide reasons for such
peremptories from sham excuses belatedly contrived to avoid admitting
acts of group discrimination.' [Citation.]" (People v. Hall, supra, 35 Cal.3d
at pp. 167-168; see also People v. Lomax (2010) 49 Cal.4th 530, 570571.) In undertaking this evaluation, the trial court need not make
affirmative inquiries, but must find the race-neutral explanations to be
credible. (People v. Hamilton (2009) 45 Cal.4th 863, 907.)

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evaluate each of the stated reasons for a challenge to a particular juror,
we accord great deference to its ruling, reviewing it under the substantial
evidence standard. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72,
104-105; accord, People v. Lenix, supra, 44 Cal.4th at p. 627; see Batson,
supra, 476 U.S. at p. 98, fn. 21; Paulino v. Harrison, supra, 542 F.3d at p.
699.) Deference does not, of course, "imply abandonment or abdication of
judicial review." (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)
The record before us clearly establishes the trial court made a
sincere and reasoned effort to evaluate each of the prosecutors' stated
reasons for their peremptory challenge of E.B. Accordingly, application of
the substantial evidence standard is appropriate. Such evidence supports
the trial court's ruling; the court neither erred by accepting the prosecutors'
explanations nor failed in its duty to examine those reasons for racial
discrimination.
The prosecutors' nondemeanor-based reasons for excusing E.B.
were both inherently plausible and supported by the record. (See People
v. Silva, supra, 25 Cal.4th at p. 386.) Youth and a concomitant limited life
experience are valid bases for excusal. (People v. Gonzales (2008) 165
Cal.App.4th 620, 631; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.)
By parity of reasoning, so is immaturity. The prosecutors were reasonably
specific with respect to their concerns about E.B.'s workplace conduct,
and the willingness to engage in violence to enforce one's authority on the
job is something that, in a prosecutor's subjective and sincere estimation,
may render the prospective juror not the best type of individual to sit on
the case being tried. (See People v. Reynoso (2003) 31 Cal.4th 903, 924925.)[fn86]
FN86: Defendants say that even if not pretextual, E.B.'s
conduct in resolving workplace disputes was not rationally
related to his ability to serve as a juror in this case,
especially where his conduct during voir dire was polite and
appropriate, and he was unbiased and stated he could listen
to others during jury deliberations. We disagree. In our view,
there is a clear and rational relationship between the use of
violence to resolve workplace disputes or impose one's
authority and will in the workplace, and how one may act to
resolve disputes or impose one's opinions in the jury room.
Even if there need be no fear the prospective juror would
actually use violence in deliberations, the apparent inability
to use reasoning and persuasion to resolve disputes
demonstrates an immaturity that is rationally connected to
his or her ability to serve. In addition, the present case
involved a form of "self-help" — gang members taking their
disputes to the streets instead of attempting to resolve them
by other means.
As for the demeanor-based explanations, particularly E.B.'s
constant movement, they are neither affirmatively contradicted by the
record nor inherently improbable. (See People v. Reynoso, supra, 31
Cal.4th at pp. 925-926; People v. Jordan (2006) 146 Cal.App.4th 232,
256.) In fact, E.B.'s movement was implicitly confirmed by the trial court.
(Contrast Snyder v. Louisiana (2008) 552 U.S. 472, 479.) Generally
speaking, a prospective juror's demeanor may properly be considered by
a prosecutor in deciding whether to exercise a peremptory challenge.
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(See, e.g., People v. Ward (2005) 36 Cal.4th 186, 202; People v. Turner
(1994) 8 Cal.4th 137, 170-171, disapproved on another ground in People
v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993) 4
Cal.4th 1233, 1282.) The trial court here was in the best position to
observe E.B., and its acceptance of the prosecutors' reasons is entitled to
great deference. (People v. Stanley (2006) 39 Cal.4th 913, 939.) Under
the circumstances, the fact defense counsel did not observe something, or
interpreted it differently than the prosecutors, does not call into question
the credibility of the prosecutors' stated reason. (People v. Jordan, supra,
146 Cal.App.4th at p. 255.) Moreover, the trial court was in the best
position to observe the prosecutors' demeanors, and the manner in which
they exercised their peremptory challenges, in assessing the prosecutors'
credibility. (People v. Stanley, supra, 39 Cal.4th at p. 939; see People v.
Lomax, supra, 49 Cal.4th at pp. 570-571.)
Relying on Miller-El v. Dretke (2005) 545 U.S. 231, defendants put
forth several arguments in support of their assertion the prosecutors'
reasons for excusing E.B. were pretexts for excusing him because he was
African-American. First, defendants point out that seven of the
prosecution's first 10 challenges were used against minorities, three of
whom were African-Americans. Three out of four African-Americans in the
jury box were excused peremptorily by the prosecution. Thus, defendants
say, a great percentage of African-Americans were removed by the
prosecution, a fact that supports a strong inference of purposeful
discrimination on the basis of race. (See id. at pp. 240-241.)
Statistics cannot be considered in a vacuum. Here, although
defendants were themselves African-American, so too were most of their
victims. Thus, this is not a case in which the defendants were members of
the excluded group, while their alleged victims were members of the group
to which the majority of the jurors belonged. (See People v. Cleveland,
supra, 32 Cal.4th at pp. 733-734.) In addition, at least one trial juror, Juror
No. 1336880, was African-American. "'While the fact that the jury included
members of a group allegedly discriminated against is not conclusive, it is
an indication of good faith in exercising peremptories, and an appropriate
factor for the trial judge to consider in ruling on a Wheeler objection.'
[Citation.]" (People v. Ward, supra, 36 Cal.4th at p. 203; accord, People v.
Lewis, supra, 43 Cal.4th at p. 480.)
In addition, the circumstances surrounding the excusals of the other
two African-American prospective jurors cannot be ignored. J.H. had a son
serving life in prison for what J.H. believed was a gang-related murder. He
had served on two juries before and felt he never knew when a lawyer
was giving him all the facts or telling the truth. Asked by the prosecutor if,
were he in her position, he would think it good to have 12 jurors with his
state of mind, J.H. stated he could not be in her position and could not put
himself in her position. When the prosecutor questioned J.H. further about
his prior jury experience, this ensued:
"Q. Now, is there anything about that experience that would
cause you to —
"A. Absolutely not.
"Q. Are you feeling irritated with me right now?

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"A. Absolutely not.
"Q. Are you sure? Because it's time to be honest.
"A. Why do you ask me the same question over and over? If
I lied the first time, I'm going to lie the second time. I told you
the truth the first time. I'm going to do it again.

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"[PROSECUTOR]: Your Honor, at this time I think I need to
challenge for cause.

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"[J.H.]: Good."

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Following voir dire by defense counsel, the trial court denied the
prosecutors' challenge for cause. The next peremptory challenge was the
People's, and the prosecutor used it to excuse J.H. During the hearing on
the Batson-Wheeler motion, the trial court observed that J.H. and been "a
little short" with the prosecutor.
The other African-American prospective juror who was peremptorily
excused by the People was J.C. In pertinent part, J.C. stated that,
although he knew jurors were not supposed to consider penalty or
punishment, if he were a juror and were to return a guilty verdict, it would
be "kind of like morally hard" on him. He noted that defendants looked to
be about his age, and the jury's decision "could potentially determine the
rest of their lives ...." Although J.C. felt he could listen to the evidence,
keep an open mind, and reach a fair and just verdict based on the
evidence and the law, he admitted he was having a hard time not putting
himself in defendants' position. Although he would try putting it out of his
mind, he felt it would be hard to not think, during deliberations, about what
would happen to defendants if convicted.
The prosecutor challenged for cause, but, as J.C. said he believed
he could find defendants guilty if the prosecution met its burden of proof
and that he would follow the law as the court instructed, the trial court
denied the challenge. The prosecution then accepted the panel containing
J.C. (and Juror No. 1336880) four times. Only after using its next two
peremptory challenges against other prospective jurors, and having
defendants exercise various peremptory challenges, did the People
excuse J.C. During the hearing on the Batson-Wheeler motion, counsel for
Lee represented that the defense did not make such a motion with respect
to J.C. because J.C. indicated he felt sympathy toward defendants based
on their ages.
In light of the foregoing, the bare statistics are misleading in this
case, and do not support an inference of purposeful discrimination based
on race. Defendants say, however, that the prosecution used a different
script for questioning E.B. than it did for other prospective jurors and
included a trick question designed to elicit cause to strike an AfricanAmerican male and not discover how he would function as a juror, and
that these circumstances were a strong indication of racial bias in
questioning. (See Miller-El v. Dretke, supra, 545 U.S. at pp. 255-262.)
Defendants point to the prosecutor asking E.B. if he had ever had
to evaluate someone's credibility at work and then, rather than questioning
E.B. about the process he might use in that regard, instead asking how
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E.B. would handle a hypothetical situation. When an objection to the
question was sustained, the prosecutor asked what type of responsibilities
E.B. had if there were problems with the people he was responsible for
supervising, and if he was responsible for discipline. In light of E.B.'s
previous answers concerning such things as his finances, youth, and lack
of education beyond high school, and his demeanor, we find no trickery.
Rather, the question was designed to probe E.B.'s maturity and ability to
work with other people, both of which were related to how he would
function as a juror. The record does not support an inference the
prosecutor anticipated E.B. would answer by admitting to the use of
violence or in a way that would generate cause to strike a young AfricanAmerican male. (Compare Miller-El v. Dretke, supra, 545 U.S. at pp. 261262.)
As for allegedly disparate questioning, defendants point to the
questions asked a number of non-African-American jurors and prospective
jurors. However, the majority of these jurors were examined after denial of
the Batson-Wheeler motion. Since we review the trial court's finding on the
record as it stood at the time the Batson-Wheeler ruling was made
(People v. Lenix, supra, 44 Cal.4th at p. 624), we question defendants'
inclusion of jurors and prospective jurors who had not been the subject of
voir dire at the time the trial court denied the Batson-Wheeler motion.
Nevertheless, we include them in our analysis and accept defendants'
representation that those jurors and nonjurors were in fact not AfricanAmerican.
Defendants first point to Juror No. 1314332, who worked in the oil
fields as a compressor operator for a major oil company. When the
prosecutor ascertained the juror was the only one at the plant, this took
place:
"Q. You would not advocate violence out there in the oil
fields, would you?
"A. No.
"Q. You would agree that that's not the right thing to do.
"A. No, it's not."
Defendants say this was clearly a reference to E.B. and not a
sincere question going to Juror No. 1314332's suitability as a juror. While
clearly engendered by E.B.'s responses, we find the questions proper,
especially in light of the argument of Lee's attorney at the time of the
Batson-Wheeler motion concerning the training techniques used by law
enforcement and military academies.
The prosecutor asked prospective alternate juror B.R., a supervisor
for an oil company, if he had a "basic management philosophy" for dealing
with problems with employees. B.R. replied, "Get rid of them." Asked if he
considered himself a tough boss, B.R. stated, "Well, I think that we are
only accountable to each other for ourselves." Defendants say this answer
puts E.B.'s response into perspective. Indeed: It demonstrates that, while
the oil fields may not be a workplace environment for sensitive people,
neither is it necessary or common to resort to violence in order to deal with
problem employees.
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Defendants say the prosecution did not ask similar questions about
workplace conflict or discipline of G.H., Juror No. 1222064, B.M., Juror
No. 1355968, M.B., or G.F., all of whom were non-African-Americans with
similar jobs. However, the record supports the People's response on
appeal, namely that the prosecution's questions were tailored to address
potential concerns for each prospective juror in light of that individual's
previous answers. For instance, the prosecutor questioned G.H. at length
about how he would determine credibility, especially since he was a friend
of one of the law enforcement witnesses in this case. G.H. ultimately was
excused pursuant to a defense challenge for cause. The record also
shows striking dissimilarities between E.B. and the individuals identified by
defendants. For example, Juror No. 1222064 had not worked in the oil
fields in at least 12 years and, being retired, was clearly considerably older
than E.B. Similarly, B.M. had not worked in the oil business for 16 years.
Juror No. 1355968 was several jobs removed from contact with the oil
fields, and even then sold oil field equipment as opposed to working in the
oil fields per se. M.B. was not a supervisor, but rather worked in a job in
which he had someone telling him what to do. Prospective alternate juror
G.F. was a lease operator who helped maintain production for several
hundred oil wells. Having lived in Kern County for 55 years, he was
considerably older than E.B., and the prosecutor ascertained that he did
not supervise people, but rather worked together with three other people,
with G.F. usually being in the office and the other three being out in the
field. In light of the foregoing, the record does not support defendants'
claim that the disparate questioning was a strong indication of racial bias.
Defendants also say the prosecution did not ask questions about
employee conflict resolution or discipline during voir dire of similarly
situated non-African-American prospective jurors S.F., K.M., L.D., and
T.C. However, S.F.'s employees were in sales and marketing. K.M. had
been employed for at least 31 years and had adult children. He was
clearly significantly older than E.B. L.D. did not work in the oil fields, was
significantly older than E.B., and was questioned by counsel for Johnson
about making credibility determinations. Similarly, T.C. did not work in the
oil fields and, with a 16-year-old son, was at least somewhat older than
E.B. Given these differences, we again find no indication of racial bias in
questioning.
Last, defendants say the record reflects some sworn jurors shared
characteristics with E.B. that the prosecution listed as reasons for
dismissing him. (See Miller-El v. Dretke, supra, 545 U.S. at pp. 241-248.)
We recognize that "[i]f a prosecutor's proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson's third step. [Citation.]" (Id. at p.
241, italics added.) Accordingly, we have undertaken the requisite
comparative analysis (see People v. Lenix, supra, 44 Cal.4th at pp. 607,
621-622), keeping in mind that "[t]wo panelists might give a similar answer
on a given point. Yet the risk posed by one panelist might be offset by
other answers, behavior, attitudes or experiences that make one juror, on
balance, more or less desirable. These realities, and the complexity of
human nature, make a formulaic comparison of isolated responses an
exceptionally poor medium to overturn a trial court's factual finding." (Id. at
p. 624.)

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"Viewing such comparative evidence in light of the totality of
evidence relevant on the claim, we conclude it does not demonstrate
purposeful discrimination." (People v. Cruz (2008) 44 Cal.4th 636, 659.)
Like E.B., Juror Nos. 1181469, 1227832, 1228043, and 1355968 were
single and/or had no children. However, Juror No. 1181469 was an
accountant who was older than E.B., having lived in Kern County for 35
years. The juror had prior jury experience and read books or magazines
that helped him with his job. Juror No. 1227832 was considerably older
than E.B., having retired in 1989 after 27 years in the Air Force. During
that career, he was stationed all over the United States, Europe, and Asia.
He supervised numerous people during his career, and part of his duties
involved disciplinary actions. When he had to deal with someone he
perceived had a problem, the commander, not the juror, usually had the
last word concerning what would happen. Most of the time, the
commander accepted the juror's recommendation. The juror had a lot of
responsibility in evaluating the soldiers and figuring out the appropriate
thing to do, based on talking to them and other witnesses. Juror No.
1228043 was a public health nurse with prior jury experience. She sat on
various boards. An inference can be drawn that she was considerably
older than E.B., since she had nieces in their 30's and had been a nurse
for about 30 years. She tried to follow the news. Juror No. 1355968 had
prior jury experience. Given her lengthy employment history and the fact
she had a 36-year-old child, it is apparent she was significantly older than
E.B.
Juror Nos. 1286800, 1343211, 1477749, and 1336880 all stated
that a prior conviction would not have an impact on how they viewed the
murder case, though they do not appear to have said so in the same
manner as E.B. That there may have been "'isolated and discrete
similarities'" between their views on the subject and that of E.B. does not,
however, make them similarly situated for purposes of comparative
analysis. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1019, fn. 15.)
Defendants fail to point to any other similarity between these jurors and
E.B. in any respect contributing to the prosecutors' challenge. "The
circumstance that the ... jurors made a single comment having similarity
does not establish that the prosecutor[s'] reasons were pretextual or that
defendant[s] established purposeful discrimination under the facts of the
present case." (People v. Schmeck (2005) 37 Cal.4th 240, 271,
disapproved on another ground in People v. McKinnon (2011) 52 Cal.4th
610, 637-638.)
"Advocates do not evaluate panelists based on a single answer.
Likewise, reviewing courts should not do so." (People v. Lenix, supra, 44
Cal.4th at p. 631, fn. omitted.) The seated jurors identified by defendants
simply do not "demonstrate such a striking similarity" to E.B. in any
meaningful way that a finding of pretext is warranted. (People v. Stevens
(2007) 41 Cal.4th 182, 196.)
Our review of the record as a whole demonstrates that substantial
evidence supports the trial court's conclusion the prosecutors' peremptory
excusal of E.B. was not motivated by discriminatory intent. (See People v.
Cruz, supra, 44 Cal.4th at p. 661.) The Batson-Wheeler motion was
properly denied.[fn87]
FN87: Even if we were to find that some part of the
prosecutors' assessment was not well supported by the
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record, we would not conclude the trial court erred by not
finding the excusal was motivated by E.B.'s race. The
primary reason the trial court accepted for E.B.'s excusal —
his manner of handling employees in the workplace — was
amply supported by the record. (See People v. Taylor (2009)
47 Cal.4th 850, 896.)
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 168-219.
2.

Legal Standard

6

Evaluation of allegedly discriminatory peremptory challenges to potential jurors in

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federal and state trials is governed by the standard established by the United States

8

Supreme Court in Batson v. Kentucky, 476 U.S. 79, 89 (1986).

9

In Batson, the United States Supreme Court set out a three-step process in the

10

trial court to determine whether a peremptory challenge is race-based in violation of the

11

Equal Protection Clause. Purkett v. Elem, 514 U.S. 765, 767 (1995). First, the defendant

12

must make a prima facie showing that the prosecutor has exercised a peremptory

13

challenge on the basis of race. Id. That is, the defendant must demonstrate that the facts

14

and circumstances of the case "raise an inference" that the prosecution has excluded

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venire members from the petit jury on account of their race. Id. If a defendant makes this

16

showing, the burden then shifts to the prosecution to provide a race-neutral explanation

17

for its challenge. Id. At this second step, "the issue is the facial validity of the

18

prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's

19

explanation, the reason offered will be deemed race neutral." Id., quoting Hernandez v.

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New York, 500 U.S. 352, 360 (1991). Finally, the third step requires the trial court to

21

determine if the defendant has proven purposeful discrimination. And "[s]ince the trial

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judge's findings in the context under consideration here largely turn on evaluation of

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credibility, a reviewing court ordinarily should give those findings great deference."

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Batson, 476 U.S. at 98, n.21.

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26
27
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The Court will review each Batson challenge, the challenge as to disabled jurors,
and the challenge as to African American jurors, in turn.
3.

Dismissal of Hearing and Vision Impaired Jurors

Petitioner first claims that two jurors were removed based on disabilities, most
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notably hearing or vision impairments. In order to succeed with this claim Petitioner must

2

show that the physical disabilities reflect a class that is eligible for Sixth Amendment

3

protection under Batson. In Batson, the Supreme Court held that the privilege of

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peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection

5

Clause. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 479-480 (9th Cir.

6

2014) (citing Batson, 476 U.S. at 89). The Supreme Court, in Batson, exclusively

7

considered peremptory strikes based on race. Id. Eight years later, the Supreme Court

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extended Batson to peremptory strikes made on the basis of gender. J.E.B. v. Alabama,

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511 U.S. 127, 129 (1994). However, the Supreme Court has not held that heightened

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scrutiny should apply to preemptory challenges based on any other protected class.

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While the Ninth Circuit has expanded Batson to include challenges based on

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sexual orientation, it has not found that disability is subject to heightened scrutiny and

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therefore subject to preemptory challenges under Batson. In SmithKline Beecham Corp.

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v. Abbott Labs, the Ninth Circuit found that Batson applies to peremptory strikes based

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on sexual orientation based on the history of exclusion of gays and lesbians from

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democratic institutions and the pervasiveness of stereotypes about the group. 740 F.3d

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471, 486 (9th Cir. 2014). Alternatively, the Ninth Circuit has not extended protection to

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disabled individuals under Batson. United States v. Santiago-Martinez, 58 F.3d 422,

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422-423 (9th Cir. 1995). In Santiago-Martinez, the Ninth Circuit found that obesity, even

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if recognized under the Americans with Disabilities Act, did not subject the class to

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heightened scrutiny under the Equal Protection Clause nor entitle the class to protection

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under Batson. Id.

23

In addressing the same issue, the Court of Appeals for the District of Columbia

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Circuit reached the same conclusion regarding disabled jurors. United States v. Watson,

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483 F.3d 828, 831-832 (D.C. Cir. 2007). In that the Supreme Court had held that

26

classifications based on disability are subject only to rational basis review, the Court held

27

that there no basis for applying heightened scrutiny to peremptory challenges of blind

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jurors. Id. at 832-33.
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Petitioner has not provided any case law to support the claim that disabled jurors

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should be subject to a Batson challenge. Under Ninth Circuit law, Petitioner’s claim fails.

3

But more importantly, under ADEPA review, Petitioner is only entitled to relief for

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violations of clearly established Federal law, as determined by the Supreme Court of the

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United States. 28 U.S.C. § 2254(d). "It is not an unreasonable application of clearly

6

established Federal law for a state court to decline to apply a specific legal rule that has

7

not been squarely established” by the Supreme Court. Knowles v. Mirzayance, 129 S.

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Ct. 1411, 1419 (2009). The striking of the disabled jurors did not violate clearly

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established Federal law. Petitioner is not entitled to relief on his first Batson challenge.

10

4.

Dismissal of African American Jurors

11

Petitioner next claims that his Equal Protection rights were violated by the

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prosecution’s use of a preemptory against juror E.B., an African American male. Here,

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the trial court found that the first step, a prima facie finding that the juror was struck

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based on race occurred, and proceeded to analyze the second and third steps of the

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Batson analysis.

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Because the matter proceeded to the second and third step at the state trial court,

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this Court need not review the first step of the Batson analysis. Hernandez v. New York,

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500 U.S. 352, 359 (1991) ("Once a prosecutor has offered a race-neutral explanation for

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the peremptory challenges and the trial court has ruled on the ultimate question of

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intentional discrimination, the preliminary issue of whether the defendant had made a

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prima facie showing becomes moot.").

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In evaluating the race-neutral explanation, the Court must keep in mind that proof

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of discriminatory intent or purpose is required to show a violation of the Equal Protection

24

Clause. See Hernandez, 500 U.S. at 360 (no discriminatory intent where Latino jurors

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dismissed because of possible difficulty in accepting translator's rendition of Spanish

26

language testimony). It should also keep in mind that a finding of discriminatory intent

27

turns largely on the trial court's evaluation of the prosecutor's credibility. See Rice v.

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Collins, 546 U.S. 333, 340-41 (2006); Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003).
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"[T]he court must evaluate the prosecutor's proffered reasons and credibility under 'the

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totality of the relevant facts,' using all the available tools including its own observations

3

and the assistance of counsel." Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004)

4

(citing Lewis, 321 F.3d at 831). A legitimate reason "is not a reason that makes sense,

5

but a reason that does not deny equal protection." Purkett v. Elem, 514 U.S. 765, 769

6

(1995). What matters is the "genuineness of the motive" behind the racially neutral

7

explanation, not "the reasonableness of the asserted nonracial motive." Id. "To accept a

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prosecutor's stated nonracial reasons, the court need not agree with them. The question

9

is not whether the stated reason represents a sound strategic judgment, but 'whether

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counsel's race-neutral explanation for a peremptory challenge should be believed.'"

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Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (citing Hernandez, 500 U.S. at

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365).

13

When determining whether a prosecutor's professed race-neutral reasons for

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striking a juror were pretextual, Batson requires an inquiry into "the totality of the relevant

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facts about a prosecutor's conduct." Currie v. McDowell, 825 F.3d 603, 610 (9th Cir.

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2016); Kesser, 465 F.3d at 359. However, AEDPA "'imposes a highly deferential

17

standard for evaluating state-court rulings'" and "'demands that state-court decisions be

18

given the benefit of the doubt.'" Felkner v. Jackson, 562 U.S. 594, 598 (2011) (quoting

19

Renico v. Lett, 559 U.S. 766, 773 (2010)). More specifically, the findings of the state trial

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court on the issue of discriminatory intent are findings of fact entitled to the presumption

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of correctness in federal habeas review, see Purkett, 514 U.S. at 769, as are the findings

22

of the state appellate court, see Mitleider, 391 F.3d at 1050; Williams v. Rhoades, 354

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F.3d 1101, 1108 (9th Cir. 2004). Under AEDPA, this means a state court's findings with

24

respect to discriminatory intent are presumed sound unless a petitioner rebuts the

25

presumption by clear and convincing evidence. Miller-El v. Dretke, 545 U.S. 231, 240,

26

(2005). "[The federal court] must defer to the [state court's] conclusion that there was no

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discrimination unless that finding 'was based on an unreasonable determination of the

28

facts in light of the evidence presented in the State court proceeding.'" Cook v.
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LaMarque, 593 F.3d 810, 816 (9th Cir. 2010) (citing 28 U.S.C. § 2254(d)(2)). A federal

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habeas court may grant relief only "if it was unreasonable to credit the prosecutor's race-

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neutral explanations for the Batson challenge." Rice, 546 U.S. at 338.

4

In reviewing the claim, Petitioner provides no factual support for his argument and

5

only states that the state court “erred in determining the reasons offered by the

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prosecutor rebutted the inference of group bias and stereotyping based on race.” (Pet. at

7

34-35.) The state court, in reviewing the Batson claim, provided significant detail and

8

explanation as to why it found that the peremptory challenge as to E.B. was not racially

9

motivated.

10

The prosecutor provided several explanations why he moved to excuse E.B. from

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the jury. The prosecution believed E.B “was very young, had limited life experience, was

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single, had no children, had no post-high school education, did not look at the news and

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was unaware of the circumstances in the news with respect to the current world, was

14

uncomfortable and fidgeting while being questioned, mumbled, was very nervous, was

15

very immature in failing to check out the financial consequences to him of jury duty, and

16

most of all, solved workplace disputes in a completely inappropriate manner.” Johnson,

17

2013 Cal. App. Unpub. LEXIS 6838 at 195-96. The prosecutor focused on the juror’s

18

unabashed comments regarding workplace violence, and found the juror’s actions to be

19

“inappropriate even in the oil fields.” Id. In addition, the prosecutor noted that E.B. was

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inappropriately dressed - wearing a black t-shirt with picture of a skull - and that based

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on the totality of the factors felt the juror to be a "very immature and mean" person. Id.

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Based on the reasons provided, the trial court found the prosecution’s concerns were

23

sincere and would lead the prosecution to “conclude that [E.B.] is immature in the way in

24

which he would exercise discipline and control other co-employees,” and denied the

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Baston challenge. Id. at 198-99.

26

Upon reviewing the record, the state court found that evidence “clearly

27

establishe[d] the trial court made a sincere and reasoned effort to evaluate each of the

28

prosecutors' stated reasons for their peremptory challenge of E.B.” People v. Johnson,
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2013 Cal. App. Unpub. LEXIS 6838 at 203. The state court held that the prosecutors'

2

nondemeanor-based reasons for excusing EB, including youth, limited life experience,

3

and immaturity, were inherently plausible and supported by the record. Id. The state

4

court focused on E.B.'s workplace conduct and his willingness to engage in violence,

5

there

6

estimation that he was not a suitable juror.

as factors which could influence the prosecutor's subjective and sincere

7

The state court also found that that the prosecution’s demeanor-based

8

explanations were properly considered. While the actions were not fully confirmed by the

9

record, the state court deferred to trial court which was in the best position to observe

10

the juror and his behavior.

11

The state court also addressed Petitioner’s arguments as to why the dismissal of

12

E.B. was pre-textual and actually based on race. Petitioner noted that seven of the

13

prosecution's first 10 challenges were used against minorities including three of the four

14

African-Americans in the jury box. Despite the fact that only one African American juror

15

remained on the jury, the state court noted that the defendants and most of the victims

16

were themselves African American, so the removal of the jurors did not create a situation

17

where defendants were members of the excluded group while the jury was populated by

18

members of the victim’s group.

19

The state court also looked at the reasons for dismissing the other African

20

American jurors. One had a son serving life in prison for a gang-related murder and had

21

a general distrust of attorneys. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 207-09;

22

see also Aug. Rep. Tr. at 442; 7 RT 1351-1353. The other dismissed African American

23

juror repeatedly responded to questions that he would not be able to set aside the fact

24

that if he were on a jury that reached a guilty verdict, it would be "morally hard" on him

25

and to know that he played a role in placing the defendants that were similar in age to

26

him in prison. (Aug. Rep. Tr. at 1418-1423, 1430.)

27

Further, the defense declined to raise any Batson objections to either of these

28

peremptory challenges likely because the race-neutral basis was obvious. By
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comparison, the prosecution retained African-American Juror 136880, who was older,

2

married with children, steadily employed in the education field, with prior jury service. (Id.

3

at 257, 598, 660, 678, 844.) Based on the reasons why the prosecution had to dismiss

4

the two other African American jurors, and the fact that at least one other African

5

American juror remained, the state court found “the bare statistics” to be “misleading in

6

this case,” and did not support an inference of purposeful discrimination based on race.

7

People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 210.

8

Nor did the state court find that the prosecution’s asking E.B. how he would deal

9

with such a workplace situation while not asking the same or similar questions to other

10

jurors was an attempt to trick the juror into a response that would provide cause to be

11

stricken. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 212-15. The state court found

12

the question was designed to probe E.B.'s maturity and ability to work with other people,

13

a relevant skill to properly function as a juror. Id. More importantly, the prosecutor could

14

not have anticipated E.B. would answer by admitting to the use of violence or in some

15

other way that would generate cause to strike a young African-American male. Id.

16

Finally, the state court performed a comparative analysis of the responses of the

17

other jurors to determine whether the reason for dismissal of E.B. would have equally

18

applied to the other jurors. Upon such review, the state court found that most of the other

19

single jurors were older and had significantly more professional and life experiences than

20

E.B. The state court concluded that “[t]he seated jurors identified by defendants simply

21

do not demonstrate such a striking similarity to E.B. in any meaningful way that a finding

22

of pretext is warranted. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 218.

23

Accordingly, the state court denied the Batson challenge, finding that the excusal of E.B.

24

was not motivated by discriminatory intent especially since the primary reason the trial

25

court accepted E.B.'s excusal — his manner of handling employees in the workplace —

26

was amply supported by the record.

27

Providing the trial court’s credibility determination of the prosecution’s

28

nondiscriminatory subjective intent great deference, the Court is unable to find that the
136

1

ruling was an unreasonable application of federal law. Cook v. LaMarque, 593 F.3d at

2

816. A federal habeas court may grant relief only if it was unreasonable to credit the

3

prosecutor's race-neutral explanations for the Batson challenge. Rice, 546 U.S. at 338.

4

That is not the case with regard to the reasons proffered by the prosecution as to E.B.

5

E.B.’s comments that he approved of the use of violence in the workplace should and

6

did create concern by the prosecutor that E.B. may condone criminal behavior, and

7

although not mentioned by the prosecutor, raised a legitimate concern that E.B. might

8

not conduct himself in an appropriate manner if he were to remain on the jury.

9

Even if “[r]easonable minds reviewing the record might disagree about the

10

prosecutor’s credibility,” that disagreement “does not suffice to supersede the trial court’s

11

credibility determination.” Rice, 546 U.S. at 341-42. Petitioner has not shown that "it was

12

unreasonable to credit the prosecutor's race-neutral explanations for the Batson

13

challenge," and therefore is not entitled to relief. Id. at 338.

14

In sum, the state appellate court's finding that there was no discriminatory intent

15

was not based on an unreasonable determination of the facts in light of the evidence

16

presented in the trial court. Nor has Petitioner come forward with clear and convincing

17

evidence to rebut the presumption that the state court's conclusion was a reasonable

18

one, nor has he otherwise shown why this Court should accept his interpretation of the

19

record over the trial court's credibility determination. See 28 U.S.C. § 2254(e)(1); Miller-

20

El, 545 U.S. at 240. Accordingly, the Court defers to the state court's conclusion that

21

there was no discriminatory intent. See Cook, 593 F.3d at 816. The state courts'

22

rejection of Petitioner's claim was not contrary to, or involved an unreasonable

23

application of, clearly established Supreme Court precedent, or based on an

24

unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not

25

entitled to habeas relief on this claim.
Claim Six – Change of Venue

26

F.

27

Petitioner claims that his federal Due Process rights, right to a fair trial, and right

28

to an impartial jury were violated by the state court’s denial of a change of venue.
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1.

State Court Decision

2

Petitioner presented this claim by way of direct appeal to the California Court of

3

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

4

appellate court and summarily denied in subsequent petition for review by the California

5

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

6

opinion is summary in nature, this Court "looks through" that decision and presumes it

7

adopted the reasoning of the California Court of Appeal, the last state court to have

8

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

9

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

10

A.

11

Dixon and Johnson contend the trial court erroneously denied a
defense motion for change of venue, thereby denying them due process, a
fair trial, and trial by an impartial jury, as guaranteed by the state and
federal Constitutions. The People say the motion was properly denied.

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28

1.

Change of Venue

Background

Johnson moved, in limine, for a change of venue based on pretrial
publicity. Johnson pointed to a June 10, 2008, article in the Bakersfield
newspaper in which he was called one of the top gang members in Kern
County; a September 3, 2008, local television news story in which a liquor
store surveillance video was played that depicted an unknown AfricanAmerican male shooting a clerk in a February 2006 robbery,[fn69] and
which reported that Johnson had now been named as the suspect in the
shooting; and an October 21, 2008, article in the Bakersfield newspaper
titled "Shot-callers, the 66," in which the district attorney's office included
defendants among the 66 most dangerous or significant gang members in
Bakersfield. Dixon joined in the motion and noted that the information was
also on the Internet.[fn70]
FN69: According to Johnson, the video was also featured on
America's Most Wanted and the national news.
FN70: Lee expressly declined to join in the motion.
The People opposed the motion, claiming Johnson and Dixon had
failed to meet their burden of showing they could not receive a fair trial in
Kern County. Attached to the People's opposition were copies of the
newspaper articles the People were aware of regarding the case and
defendants. There were three blurbs in the "[p]ublic safety" section the day
after each of the three shootings; a larger story, dated December 31,
2007, and titled "Homicides drop in 2007," that briefly described the year's
homicides, including the McNew Court shootings; an article dated May 7,
2008, and titled "MySpace pages help lead deputies to 2007 murder
suspects," that discussed defendants' arrests and charges; an article
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dated May 10, 2008, titled "Search warrants reveal how murder suspects
were tracked down," that discussed the case and contained a photograph
of Vanessa Alcala and her child; and an article dated June 10, 2008, titled
"New D.A. gang unit to target top offenders," that contained a list of 27
gang members called "shot-callers" by the Kern County District Attorney
and who had cases pending against them. Defendants were included on
the list and named as Country Boy Crips, and the article was
accompanied by a photograph of the district attorney at a news
conference, standing next to a poster that included Johnson's and Lee's
pictures, monikers, and charges.
After hearing argument and viewing the poster, the trial court
addressed the relevant considerations (discussed post) and denied the
motion. It deferred to voir dire a determination whether the article had
prejudiced the panel and an evaluation of whether a renewal of the motion
would be justified.

14

Jury selection began on November 17, 2008. Prospective jurors
were questioned, inter alia, about any media exposure they had had to
defendants or the case, as well as any exposure to or personal knowledge
of gangs. Those whose answers suggested a fixed prejudgment of the
case, either because defendants purportedly were gang members or
because of what was known about the case through media exposure,
were excused for cause. At the time all sides accepted the panel as
constituted, the defense had not exhausted all of its peremptory
challenges. At the time the alternates were accepted, only Dixon had
exercised all of his peremptory challenges. At no time did any defendant
request that the change of venue motion be renewed.

15

2.

16

"'A change of venue must be granted when the defendant shows a
reasonable likelihood that in the absence of such relief, a fair trial cannot
be had.'" (People v. Panah (2005) 35 Cal.4th 395, 447; § 1033, subd. (a).)
"'[R]easonable likelihood'" means something less than "'more probable
than not,'" but something more than "merely 'possible.'" (People v. Bonin
(1988) 46 Cal.3d 659, 673, overruled on another ground in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.) Each case is resolved on its own facts,
and the moving party bears the burden of proof. (People v. Sanders
(1995) 11 Cal.4th 475, 505.)

10
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13

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20
21

Analysis

27

"In contrast to pretrial appellate review by way of a petition for a writ
of mandate, review on appeal is retrospective. Thus, 'any presumption in
favor of a venue change is unnecessary, for the matter may then be
analyzed in light of the voir dire of the actual, available jury pool and the
actual jury panel selected. The question then is whether, in light of the
failure to change venue, it is reasonably likely that the defendant in fact
received a fair trial.' [Citation.]" (People v. Jennings (1991) 53 Cal.3d 334,
360.) "On appeal, '"the defendant must show both that the [trial] court
erred in denying the change of venue motion, i.e., that at the time of the
motion it was reasonably likely that a fair trial could not be had, and that
the error was prejudicial, i.e., that it [is] reasonably likely that a fair trial
was not in fact had."' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900,
943.)

28

On appeal, we review the trial court's resolution of factual questions

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for substantial evidence, but we independently determine the ultimate
question of whether a fair trial was obtainable. (People v. Sanders, supra,
11 Cal.4th at pp. 505-506; People v. Jennings, supra, 53 Cal.3d at pp.
359-360.) This de novo standard of review applies to our consideration of
the five factors we must examine in making that determination: (1) the
nature and gravity of the offenses; (2) the nature and extent of the media
coverage; (3) the size of the community; (4) the status of the defendants
in the community; and (5) the popularity and prominence of the victims.
(People v. Panah, supra, 35 Cal.4th at p. 447; People v. Jennings, supra,
53 Cal.3d at p. 360; People v. Harris (1981) 28 Cal.3d 935, 948.)
With regard to the first factor, "[t]he peculiar facts or aspects of a
crime which make it sensational, or otherwise bring it to the
consciousness of the community, define its 'nature'; the term 'gravity' of a
crime refers to its seriousness in the law and to the possible
consequences to an accused in the event of a guilty verdict." (Martinez v.
Superior Court (1981) 29 Cal.3d 574, 582.) Special-circumstance murder
is an offense of "utmost gravity," even when the death penalty is not
sought. (Williams v. Superior Court (1983) 34 Cal.3d 584, 593.) The
multiple murders and attempted murders involved here are extremely
serious offenses; thus, this factor favors granting a change of venue, but it
is not dispositive. (People v. Davis (2009) 46 Cal.4th 539, 578; People v.
Weaver (2001) 26 Cal.4th 876, 905.) Although the fact a pregnant woman
and her unborn child were among the victims impacts the nature of this
case, this is something that "will not change with a change of venue."
(People v. Edwards (1991) 54 Cal.3d 787, 808.) "'Prospective jurors would
sympathize with the [victims'] fate' no matter where the trial was held, and
this sympathy stems from the nature of the crime, 'not the locale of trial.'
[Citation.]" (People v. Davis, supra, 46 Cal.4th at p. 578.)
The second factor, the nature and extent of the media coverage
weighs against a change of venue. It simply cannot be deemed "persistent
and pervasive." (Martinez v. Superior Court, supra, 29 Cal.3d at p. 585;
see, e.g., People v. Lewis (2008) 43 Cal.4th 415, 448-449 [39 newspaper
articles, and 95 minutes of videotaped television coverage, spanning
period of 13 months, "considerably less extensive" than in other cases in
which California Supreme Court affirmed denials of motions to change
venue]; People v. Panah, supra, 35 Cal.4th at p. 448 [18 articles over 12month period "can hardly be characterized as 'extensive'"].) The coverage
was largely factual and noninflammatory; although naming defendants as
gang "shot-callers" was potentially prejudicial, evidence of defendants'
gang affiliation and level of involvement was admitted at trial, so no
prejudice resulted. (See People v. Lewis, supra, 43 Cal.4th at pp. 449450.)

27

"[T]he fact that prospective jurors may have been exposed to
pretrial publicity about the case does not necessarily require a change of
venue. [Citation.] '"It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence presented in court."'
[Citations.]" (People v. Panah, supra, 35 Cal.4th at p. 448.) Here, the
prospective jurors had, at most, vague recollections of past news
coverage, and any who appeared to have prejudged defendants' guilt
were excused. Defendants' failure to exhaust their peremptory challenges
strongly suggests they themselves concluded the jurors were fair. (Ibid.)

28

Also weighing against a change of venue is the size of the

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26

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community, the third factor. "The larger the local population, the more
likely it is that preconceptions about the case have not become imbedded
in the public consciousness. [Citation.]" ((1985) 41 Cal.3d 144, 178.)
During the hearing on defendants' motion, the prosecutor represented,
without contradiction, that Kern County had a population of almost
800,000 people. According to California Department of Finance figures for
2007, the latest year available, Kern County had a population of just under
810,000, making it the 13th most populous of California's 58 counties.
(Cal. Statistical Abstract (48th ed. 2009) Dept. of Finance, table B-3, at
<http://www.dof.ca.gov/html/fs_data/stat-abs/ Statistical_Abstract.php> [as
of Nov. 15, 2009].) Venue changes have, almost without fail, not been
granted or ordered on review in cases involving counties with such large
populations. (See, e.g., People v. Weaver, supra, 26 Cal.4th at p. 905
[where adverse publicity "neither relentless nor virulent," Kern County's
"moderate size" (then exceeding 450,000) did not undermine trial court's
decision to deny change of venue motion]; People v. Webb (1993) 6
Cal.4th 494, 514 [motions to change venue granted where county
relatively isolated and small, in contrast to San Luis Obispo County
(population then almost 200,000)]; People v. Fauber (1992) 2 Cal.4th 792,
818 [size and nature of Ventura County (population then of 619,300) did
not support venue change; "[v]enue changes are seldom granted from
counties of such a large size"]; People v. Daniels (1991) 52 Cal.3d 815,
852 [no change of venue; murder of two police officers garnered extensive
media coverage, but community (Riverside County) had population
exceeding 600,000]; People v. Hamilton (1989) 48 Cal.3d 1142, 1158
[most recent successful venue cases involved nonurban counties with
substantially smaller populations than Tulare County (population then
approximately 250,000, ranking it 20th among California counties in
population size)]; People v. Balderas, supra, 41 Cal.3d at pp. 178-179
[cases in which venue changes granted or ordered on review generally
involved counties with much smaller populations than Kern (population
then 405,600, ranking it 14th among California counties in that respect)].)
We have no doubt Kern County's population was of such a size that it
neutralized or diluted the impact of what scant media coverage there was.
(See People v. Weaver, supra, 26 Cal.4th at p. 905.)
Turning to the final factors — the status of the defendants, and
prominence and popularity of the victims — we conclude they too weigh
against a change of venue. Neither defendants nor the victims were
outsiders to the community, nor were they prominent personages. (See
People v. Alfaro (2007) 41 Cal.4th 1277, 1323; People v. Daniels, supra,
52 Cal.3d at p. 852.) Any prominence achieved by the victims through
news accounts of the shootings did not favor a change of venue; since all
led relatively obscure lives, "the community was not likely to have
experienced a uniquely heightened sense of loss or anger which would
presumably be alleviated by trial in another county. Any sympathetic
features of the case would be apparent wherever it was tried." (People v.
Webb, supra, 6 Cal.4th at pp. 514-515.) Likewise, any unsympathetic
features of the case — the gang allegations and evidence — would also
be apparent wherever the case was tried.

27

In sum, the gravity and nature of the crimes supported a change of
venue. The other relevant factors did not. Accordingly, we conclude the
trial court did not err in denying the motion made prior to jury selection.

28

"'[W]hen a trial court initially denies a change of venue motion
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14

without prejudice, a defendant must renew the motion after voir dire of the
jury to preserve the issue for appeal.'" (People v. Maury (2003) 30 Cal.4th
342, 388-389.) Here, as we have noted, defendants did not renew the
motion after voir dire. Even if we found no forfeiture, however (see People
v. Prince (2007) 40 Cal.4th 1179, 1215-1216), we would conclude
defendants' failure to renew the motion and to exhaust their peremptory
challenges signified their apt recognition that the jury, as selected, was fair
and impartial. (People v. Beames (2007) 40 Cal.4th 907, 922.)[fn71]
FN71: Accordingly, we do not address defendants'
alternative claim of ineffective assistance of counsel.
As the California Supreme Court stated in People v. Lewis, supra,
43 Cal.4th at page 450: "We ... conclude that on appeal defendant[s have]
not shown a reasonable likelihood that [they] did not receive a fair trial
before an impartial jury. The jury voir dire bore out the trial court's
conclusion that a fair jury could be chosen. Each juror assured the trial
court that he or she could be unbiased notwithstanding exposure to media
reports about the case. Although the jurors' assurances of impartiality are
not dispositive [citations], neither are we free to ignore them [citations].
[Courts] have in the past relied on jurors' assurances that they could be
impartial. [Citations.] Absent a showing that the pretrial publicity was so
pervasive and damaging that we must presume prejudice [citations], we
do the same here. Considering all the circumstances, defendant[s have]
not established a reasonable likelihood, as opposed to a mere possibility,
that [they] did not in fact receive a fair trial before impartial jurors.
[Citation.]"
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 147-160.

15
2.

Legal Standards

16
The Sixth Amendment "guarantees to the criminally accused a fair trial by a panel
17
of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Green
18
v. White, 232 F.3d 671, 676 (9th Cir. 2000). "[I]f prejudicial pretrial publicity makes it
19
impossible to obtain an impartial jury," then the trial judge must grant the defendant's
20
motion for a change of venue. Daniels v. Woodford, 428 F.3d 1181, 1210 (9th Cir. 2005);
21
Gallego v. McDaniel, 124 F.3d 1065, 1070 (9th Cir. 1997); Harris v. Pulley, 885 F.2d
22
1354, 1361 (9th Cir. 1988). However, jurors are not required to be totally ignorant of the
23
facts and issues involved in a case. Irvin, 366 U.S. at 722; see also Murphy v. Florida,
24
421 U.S. 794, 800 (1975); United States v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996).
25
Thus, pretrial publicity is so prejudicial that it requires a change of venue where
26
"the community where the trial was held was saturated with prejudicial and inflammatory
27
media publicity about the crime" or "voir dire reveals that the jury pool harbors 'actual
28
142

1

partiality or hostility [against the defendant] that [cannot] be laid aside.'" Hayes v. Ayers,

2

632 F.3d 500, 508 (9th Cir. 2011) (quoting Harris, 885 F.2d at 1361, 1363).

3

Prejudice from pretrial publicity may be presumed where the size of the

4

community suggests that impartial jurors may be hard to find, where the information is so

5

"blatantly prejudicial" that those exposed to it "could not reasonably be expected to shut

6

[it] from sight," and where the publicity occurs shortly before trial. Skilling v. United

7

States, 561 U.S. 358, 382-84 (2010). Where circumstances are not so extreme as to

8

warrant a presumption of prejudice, the Court must still consider whether publicity and

9

community outrage resulted in a jury that was actually prejudiced against the defendant.

10

This inquiry focuses on the nature and extent of the voir dire examination and

11

prospective jurors' responses to it. See Skilling, 130 S. Ct. at 2917-23. Our task is to

12

"determine if the jurors demonstrated actual partiality or hostility [toward the defendant]

13

that could not be laid aside." Hayes, 632 F.3d at 508; Harris, 885 F.2d at 1363.

14

In determining pretrial publicity “primary reliance on the judgment of the trial court

15

makes especially good sense because the judge sits in the locale where the publicity is

16

said to have had its effect and may base her evaluation on her own perception of the

17

depth and extent of news stories that might influence a juror." Skilling, 130 S. Ct. at 2918

18

(alternations omitted).

19

2.

Analysis

20

The state court did not find that the nature and extent of the media coverage in

21

this case was persistent and pervasive or created a presumption of prejudice. In

22

presenting the motion for change of venue in state court, Defendants presented the trial

23

court with evidence of a newspaper article and television news stories involving co-

24

defendant Johnson’s criminal conduct, and a third newspaper article listing the

25

defendants among the 66 most dangerous and significant gang members in Bakersfield.

26

Petitioner also noted that the same information was also available on the internet. The

27

state court found the amount of coverage significantly less than that of other cases in

28

which change of venue motions were denied. Specifically, the state court found the two
143

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newspaper articles and one television news story less than two California Supreme

2

Court cases affirming denials of change of venue involving 39 and 18 newspaper

3

articles, respectively. The state court noted that the fact that the newspaper article

4

named the defendants as “shot-callers” was potentially prejudicial, but that since the

5

level of gang affiliation was admitted at trial, no prejudice occurred. Further, the

6

prospective jurors had, at most, vague recollections of past news coverage.

7

This Court finds that the state court was reasonable in determining that the level

8

of pretrial media coverage was not pervasive and did not just a presumption of prejudice.

9

This is not a case where a “barrage of inflammatory publicity immediately prior to trial

10

amount[ed] to a huge wave of public passion" against Petitioner. Hayes, 632 F.3d at 510

11

(citing Patton v. Yount, 467 U.S. 1025, 1033 (1984)). Petitioner has not established

12

presumed prejudice, and is not entitled to relief unless actual prejudice exists.

13

Actual prejudice exists when voir dire reveals that the jury pool harbors actual

14

partiality or hostility against the defendant that cannot be laid aside." Hayes, 632 F.3d at

15

508; Harris, 885 F.2d at 1361. In this case, neither Petitioner nor his co-defendants

16

renewed the motion to change venue until after vior dire. Further, Petitioner provided no

17

evidence of actual prejudice in support of this motion. In light of the trial court’s findings

18

that each juror had, at most, vague recollections of past news coverage, assured the trial

19

court that he or she could be unbiased notwithstanding exposure to media reports about

20

the case, and any who appeared to have prejudged defendants' guilt were excused,

21

Petitioner has not met his burden that that the jury actually impartial. Petitioner fails to

22

demonstrate that the state court rejection of his claim "resulted in a decision that was

23

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

24

as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). It is

25

recommended that Petitioner’s claim for habeas relief be denied.

26

G.

Claim Seven – Shackling During Trial

27

Petitioner next claims that his federal Due Process rights, right to a fair trial, and

28

right to an impartial jury were violated by the fact that jurors observed Petitioner in leg
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and arm restraints during trial.

2

1.

State Court Decision

3

Petitioner presented this claim by way of direct appeal to the California Court of

4

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

5

appellate court and summarily denied in subsequent petition for review by the California

6

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

7

opinion is summary in nature, this Court "looks through" that decision and presumes it

8

adopted the reasoning of the California Court of Appeal, the last state court to have

9

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

10

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

11

B.

12

14

Dixon, the only defendant to testify, was subjected to physical
restraints partway through trial. He now says the trial court's decision in
this regard constituted an abuse of discretion that requires reversal. The
People say the trial court's decision was sufficiently justified, and in any
event, any error was harmless under the circumstances.

15

1.

16

Throughout trial, defendants were all in custody, Johnson and Lee
in the custody of the Kern County Sheriff's Department, and Dixon — who
was serving a sentence on charges arising out of the vehicle pursuit/Tec-9
incident — in the custody of the California Department of Corrections and
Rehabilitation (CDCR). Hearing on in limine motions began November 4,
2008; jury selection began November 17, 2008; and opening statements
began December 12, 2008.

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Shackling

Background

On November 14, 2008, the court determined that there should be
at least one deputy or correctional officer in the courtroom per defendant,
and that the correctional officers should be in plainclothes. On November
17, just before jury selection began, it was called to the court's attention
that defendants were still handcuffed and in leg irons. The court ordered
them unshackled, noting it had no evidence that any had made attempts
to escape or would endanger anyone's safety.
On December 18, 2008, CDCR filed a written request for
reconsideration of the order removing Dixon's restraints. The motion
asserted that Dixon had a documented history of violent and disruptive
crimes, as well as a history of nonconforming behavior while incarcerated,
and so would pose an unreasonable safety risk if he were not restrained
during trial. CDCR recommended placing him in leg restraints or a shock
belt, either of which would not be visible to the jury. CDCR represented
that if Dixon were unrestrained during trial, CDCR could not guarantee
public safety. If the court did not order Dixon restrained, CDCR requested
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that custody of Dixon be transferred to the Kern County Sheriff's
Department until the conclusion of trial.
A supporting declaration by the litigation coordinator at Kern Valley
State Prison related that Dixon had a history of violent and sex-related
crimes, both in and out of prison, with a current controlling case of criminal
gang activity and a noncontrolling case of voluntary manslaughter. The
declaration listed Dixon's prior arrests, and related that while in CDCR
custody, Dixon had received several disciplinary violations for indecent
exposure, masturbation with exposure, indecent exposure with priors,
disobeying written orders, tattoos, and battery on an inmate. He had been
identified as a member of a criminal street gang, and was currently
housed in an institution for inmates classified as level IV and requiring
close supervision. The declaration asserted that, because Dixon had a
history of violent behavior and had historically presented a lack of respect
for law and CDCR's rules, he presented a "reasonable likelihood" that he
"may" become violent or attempt to escape, with the fact he was facing a
sentence of life without parole increasing the escape risk. The declaration
concluded that he was considered a high risk of escape or violence, and
should remain physically restrained in court, either by leg restraints or a
shock belt. Without such restraint, CDCR was unable to guarantee the
safety of court personnel and the public during trial.
Counsel for Dixon opposed the motion. He noted that they had
been in court for five or six weeks without Dixon causing any problems; in
addition, there were three CDCR officers present, and usually three
deputies. Counsel observed that the portion of the probation report
appended to the declaration in support of the motion was from seven
years earlier; moreover, it appeared from the dates that some of the
information concerned Dixon's father, not Dixon. Counsel noted that
Dixon's current sentence would expire in August 2009, and that while
evidence had yet to be presented in the current case, Dixon was not going
to jeopardize his possible release date. Counsel further argued that Dixon
would have to go by him before escaping, and that Senior Officer
Sherman — a big man — was also nearby.
The court stated it had not had any problems with any of the
defendants. An officer from CDCR represented that they had noiseless
plastic restraints. Counsel for Lee reiterated that Dixon had been in court
for weeks with no physical or verbal outbursts; there was a deputy located
behind each defendant, with the closest one within six to eight feet of
Dixon; Sherman, who was the People's investigating officer, was at
counsel table for the People, located at the barrier between the gallery
and the counsel area; and there were three plainclothed correctional
officers seated in the audience.
After further discussion about CDCR's alternative request that
Dixon be transferred to county custody, the court asked the CDCR officer
to show the plastic restraints to counsel for Dixon, while it did some further
research on the issue. It expressed concern that it had not seen anything
from any defendant that would indicate any of them posed a threat. The
court stated the matter would remain under submission.
By letter dated January 13, 2009, CDCR requested the opportunity
personally to appear and address the court's concerns. It noted that while
the district attorney's office had been present at the earlier hearing, that
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office was not CDCR's legal counsel or a party to CDCR's motion.[fn132]
In discussing the letter, the court observed it did not feel there was a need
for physical restraints, but it set a further hearing on the matter.
FN132: CDCR is represented by the Attorney General (AG).
The hearing was held on January 26, 2009. CDCR represented that
Dixon had an extensive, violent criminal history, and had also received a
total of 13 rules violation reports while in prison. In addition, Dixon was
charged at the beginning of December with battery on an inmate in a
mutual combat situation and with being out of bounds in prison, thus
indicating a propensity to disobey orders. CDCR further noted Dixon had
received some minor violations for tattooing and grooming despite prior
warnings, thus showing impulsivity and an ability to defy authority, and he
also had repeated violations for sexual offenses and indecent exposure.
CDCR asserted that the fact Dixon was classified at a very high level in
CDCR's classification system indicated Dixon's violence and escape
threat. CDCR argued that all these things established manifest need for
physical restraints, which could be harmonized with Dixon's right to a fair
trial because leg restraints would be silent and not seen by the jury. CDCR
noted that Dixon was in civilian clothes. If he attempted to escape, CDCR
officers in the courtroom would have to respond, and, if Dixon were
unrestrained, might have no option but to use deadly force to stop him.
Because Dixon was in civilian clothes, he would be able to blend in with
anyone in the courtroom, whereas if he were restrained, the officers would
be able to control him immediately rather than resorting to an escalated
response or not being able to respond at all if Dixon slipped into a crowd
and could not be seen.
The court observed that there were three uniformed deputies sitting
behind defendants, within eight feet of Dixon; three correctional officers in
plainclothes on either side of the exit doors at the back of the courtroom;
and usually Senior Officer Sherman sitting "directly behind the Elmo."
CDCR responded that given Dixon's past behavior inside and outside of
prison, plus his recent behavior and the fact there did not need to be a risk
of prejudice, additional security was warranted.
Counsel for Dixon objected to Dixon being subjected to leg
restraints. Counsel pointed out that they had been in court since early
November, and Dixon had not caused any problems. The court agreed
with that observation. Counsel pointed out that the other two defendants
were unrestrained, and that being physically restrained had psychological
effects.

27

The court again observed that none of the defendants had caused
any problems in the court's presence, and that the court had not been told
of any problems in the courtroom. CDCR argued that case law did not
require recent activity or disruptions in front of the court, and pointed to the
recent charge of battery on an inmate. The prosecutor then observed that
Johnson had been involved in a situation while in court, and so "the whole
idea that everybody's been acting like choirboys throughout the course of
this case is not correct." The prosecutor also noted the statement Lee
made to Johnson about Agustin in the back hallway. The prosecutor
stated his agreement with CDCR's position.

28

The sheriff's department joined in requesting physical restraints. It

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argued that if there was a large crowd in the gallery, there was the
potential for a civilian-clothed individual to slip from the courtroom,
possibly with help from someone, even with the number of officers
present. It noted an incident in another trial in which there was a power
outage and the emergency lights did not immediately come on, and
asserted such an event would provide Dixon an excellent opportunity to
slip from the courtroom if unrestrained. It suggested that as all the
evidence was presented and Dixon realized he might be convicted, the
likelihood of an escape attempt would increase, regardless of however
well behaved Dixon previously had been.
The prosecutor added that there had been issues with the behavior
of some of the people in the audience during the course of the trial.[fn133]
CDCR pointed out that both it and the sheriff's department concurred on
the risk assessment, and, while not binding, the fact that trained law
enforcement had assessed the security risk should be considered by the
court.
FN133: We are not certain of what issues the prosecutor
meant. The record does reflect, however, that on December
22, 2008, the court noted it had been advised of some gang
confrontations outside the courtroom. On December 29,
2008, one of the jurors reported that someone had
approached his wife at lunch, mentioned the person
recognized the juror, and said one of the person's nephews
was on trial and not to hang him.
At the conclusion of argument, the court found a manifest need for
appropriate restraints. Accordingly, it ordered that noise-free restraints be
used on Dixon. It further ordered that CDCR continue to house Dixon and
provide assistance from the three correctional officers who had been
present throughout the trial. When court resumed following the lunch
recess, counsel for Dixon announced that Dixon was wearing leg
shackles.
Later during trial, Deputy Maxwell testified concerning Lee's
statement to Johnson about Agustin. At the request of counsel for Lee and
Dixon, the court admonished the jury, "[T]he fact that a defendant and/or
witness is in custody and/or is physically restrained is not evidence. In
other words, a person can be in jail because perhaps they can't make bail.
Do not speculate about the reason. You must completely disregard this
circumstance in deciding the issues in this case. Do not consider it for any
purpose or discuss it during your deliberations." Jurors were again so
admonished during final instructions.
Dupree Jackson was in custody at the time he testified. Although
he was already seated on the witness stand when the jury entered the
courtroom, he stood and was sworn in front of the jury. After breaks in his
testimony, he was again seated on the witness stand when the jury was
brought in.
Dixon was sworn outside of the jury's presence. He was seated on
the witness stand when the jury was brought in, and jurors were informed
that in their absence, he had been advised of his constitutional rights and
sworn. At one point, when his attorney asked to call two witnesses out of
order, the court stated, outside the jury's presence, that after the
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witnesses testified, a break would be taken "to transition Mr. Dixon back to
the stand outside the presence of the jury." After this and other breaks,
Dixon was again seated on the witness stand when the jury was brought
back in.
Emmanuel Burts, Jr., who was also in custody when he testified,
was also sworn and seated on the witness stand outside the jury's
presence. As in Dixon's case, the court informed jurors that Burts had
been previously advised of his constitutional rights and sworn.
After the verdicts for Johnson were read, Johnson directed several
expletives toward the jury and the court. He was restrained and removed
from the courtroom.
2.

Analysis

"[T]he Fifth and Fourteenth Amendments [to the United States
Constitution] prohibit the use of physical restraints visible to the jury
absent a trial court determination, in the exercise of its discretion, that they
are justified by a state interest specific to a particular trial." (Deck v.
Missouri (2005) 544 U.S. 622, 629.) Under state law, "a defendant cannot
be subjected to physical restraints of any kind in the courtroom while in the
jury's presence, unless there is a showing of a manifest need for such
restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted
(Duran); see also § 688 ["No person charged with a public offense may be
subjected, before conviction, to any more restraint than is necessary for
his detention to answer the charge."].)
We review a trial court's decision to shackle a defendant for abuse
of discretion. (People v. Cunningham, supra, 25 Cal.4th at p. 987.) Under
Duran's standard, however, "the trial court's discretion is relatively narrow.
[Citation.] 'Manifest need' arises only upon a showing of unruliness, an
announced intention to escape, or '[e]vidence of any nonconforming
conduct or planned nonconforming conduct which disrupts or would
disrupt the judicial process if unrestrained ....' [Citation.] Moreover, '[t]he
showing of nonconforming behavior ... must appear as a matter of record
.... The imposition of physical restraints in the absence of a record
showing of violence or a threat of violence or other nonconforming
conduct will be deemed to constitute an abuse of discretion.' [Citation.]"
(People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another ground
in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
A trial court must make its own independent determination of the
need for physical restraints, and may not rely solely on the judgment of
court security personnel (People v. Mar (2002) 28 Cal.4th 1201, 1218;
People v. Hill, supra, 17 Cal.4th at p. 841) or on "rumor and innuendo"
(People v. Cox, supra, 53 Cal.3d at p. 652). The court is not required to
hold a formal evidentiary hearing on the matter, "but [can] base its
determination on factual information properly brought to its attention.
[Citation.]" (People v. Medina, supra, 11 Cal.4th at p. 731.)
We find the requisite "'manifest need'" missing in the present case.
CDCR cited Dixon's criminal history. A defendant's record of violence, or
the fact he or she is a prison inmate, does not by itself justify shackling.
(People v. Cunningham, supra, 25 Cal.4th at p. 986; Duran, supra, 16
Cal.3d at p. 293.) Nor, in our view, does the fact of gang membership.
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Dixon had received 13 rules violations during his time in prison, but
nothing suggests all 13 were acquired during the term he was serving at
the time of trial. Rather, it appears CDCR took into account those received
during the term Dixon served for his voluntary manslaughter conviction.
Despite CDCR's insistence Dixon was violent, only one incident brought to
the trial court's attention involved violence, and that was a mutual combat
situation.[fn134] Nothing presented to the trial court supported CDCR's
assessment that Dixon was an escape risk. It appears he was charged
with "being out of bounds" during the same incident that gave rise to the
battery charge. This merely suggests the fight occurred somewhere not
readily visible to prison personnel. The other circumstances cited by
CDCR, the prosecutor, and the sheriff's department — the length of the
sentence faced by Dixon, who might perceive the evidence was going
against him; the fact there had been problems involving audience
members; Dixon being dressed in civilian clothing in a courtroom that
might suffer a power outage; and that Dixon's codefendants had not been
"choirboys" — were either speculative or did not establish any
individualized suspicion that Dixon himself would engage in
nonconforming conduct. (See People v. Seaton (2001) 26 Cal.4th 598,
652.)
FN134: Nothing suggests any of Dixon's purported sexual
offenses involved force or violence or, for that matter,
anyone other than himself and, we surmise, the person or
persons who viewed his actions.
Weighing against the foregoing was Dixon's behavior in connection
with the court proceedings. There was absolutely no suggestion any of his
failures to obey rules or orders, or any violence, were related to courtroom
proceedings, past or present, or involved any of the personnel charged
with courtroom security or with, for example, transporting Dixon to and
from his appearances. (Compare, e.g., People v. Lomax, supra, 49
Cal.4th at pp. 559-560, 562 [defendant's unprovoked violent attack on
bailiff in courtroom holding cell sufficient to warrant restraints]; People v.
Gamache, supra, 48 Cal.4th at pp. 368-370 [sufficient showing where
defendant found with hacksaw, plans for homemade silencer, and written
escape plan, and deputies intercepted letters suggesting defendant had
plans to disrupt proceedings]; People v. Wallace, supra, 44 Cal.4th at pp.
1049-1050 [showing sufficient where defendant had 16 rules violations
while awaiting trial in county jail, and violations included five jailhouse
fights and possession of illegal razors]; People v. Lewis and Oliver, supra,
39 Cal.4th at p. 1032 [showing sufficient where based on credible reports
defendant had attacked another inmate with typewriter and threatened to
kill deputies, in addition to which trial court stated it had observed
defendant's demeanor in court and believed defendant was not a
compliant person]; People v. Cunningham, supra, 25 Cal.4th at pp. 987988 [physical restraints proper, although defendant had not acted violently
during courtroom appearances, where defendant had been found in
possession of handcuff key, courtroom had no lock, and bailiff was
sometimes required to turn away from defendant when preoccupied with
various tasks]; People v. Pride (1992) 3 Cal.4th 195, 231-233 [showing
sufficient where defendant, who had muscular build, made threats of
violence and behaved hostilely toward deputies who transported him to
and from courtroom]; People v. Livaditis (1992) 2 Cal.4th 759, 773-774
[showing sufficient where sheriff's department received information from
confidential informant about possible escape attempt by defendant with
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outside help, and defendant had history of prior escape attempts]; People
v. Sheldon (1989) 48 Cal.3d 935, 945-946 [evidence indicated substantial
risk defendant might attempt escape, thus justifying shackling, where
defendant's confederate was found to possess handcuff key, evidence
from confidential informant indicated defendant might also have access to
such a key, defendant had committed five assaults on other inmates, and
defendant was facing life prison term in another state]; People v. Condley
(1977) 69 Cal.App.3d 999, 1006 [mere showing each defendant had prior
felony convictions involving use of force or violence insufficient, standing
alone, but reached threshold of "'manifest need'" when coupled with two
recent joint escape attempts and one defendant's prior conviction for
escape by means of force or violence] with, e.g., People v. Cox, supra, 53
Cal.3d at p. 652 [although shackling decision not based on general policy,
neither did it show necessity for restraints where, while there was
undercurrent of tension and charged emotion on all sides, record did not
contain single substantiation of violence or threat of violence on
defendant's part].)
People v. Hawkins (1995) 10 Cal.4th 920 (Hawkins), overruled on
another ground in People v. Lasko (2000) 23 Cal.4th 101, 110 and People
v. Blakeley (2000) 23 Cal.4th 82, 89, comes closest to supporting the trial
court's ruling. There, the California Supreme Court upheld the trial court's
decision to physically restrain the defendant, stating:
"We agree with defendant that his record of violence, or the
fact that he is a capital defendant, cannot alone justify his
shackling. [Citation.] But in this case, defendant's three
reported fistfights in prison, together with his extensive
criminal history, are sufficient to support the trial court's order
to shackle defendant, inasmuch as they demonstrate
instances of 'violence or nonconforming conduct' while in
custody. The trial court was therefore within its discretion to
order the shackling of defendant.
"Defendant argues that three fistfights in jail after being
housed there for one and one-half years is 'not unusual' and
was insufficient to justify the shackling. He claims rather that
shackling is justified only when a defendant has attempted to
disrupt courtroom proceedings or to escape from jail .... We
have never placed such preconditions on the trial court's
exercise of its discretion. When, as in this case, there were
multiple instances of violent and nonconforming behavior
while in jail, as well as an extensive background of criminal
and violent activity, we will generally not second-guess the
trial court's decision to restrain a defendant." (Hawkins,
supra, 10 Cal.4th at p. 944.)
In Hawkins, the defendant's history of violence, both in and out of
custody, was significantly more extensive than that of Dixon. Hawkins had
suffered eight prior felony convictions and had committed uncharged
assaults, two of which involved him striking or fighting with police. In
addition (although it is unclear whether this incident had occurred at the
time the court held the hearing on the sheriff's request for physical
restraints), the defendant was involved in an incident in jail in which he
threatened the lives of the guards. Moreover, a syringe had been
discovered in his cell. (Hawkins, supra, 10 Cal.4th at pp. 937, 943.)
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We recognize that a trial court is entitled to take a cautious
approach in light of all the information before it, and is not required to wait
until confronted with a violent or disruptive incident in front of the jury
before ordering restraints. (See People v. Pride, supra, 3 Cal.4th at p.
233.) In addition, the decision to impose physical restraints need not be
based on the conduct of the defendant at the time of trial. (People v.
Livaditis, supra, 2 Cal.4th at p. 774.) In Dixon's case, however, there was
absolutely no evidence of violence or nonconforming conduct, or planned
violence or nonconforming conduct, that "would disrupt the judicial
process if unrestrained ...." (Duran, supra, 16 Cal.3d at p. 293, fn. 11.)
Significantly, the trial court twice found no cause to impose physical
restraints, once even after information concerning Dixon's conduct in
prison was brought to its attention. The record does not suggest anything
changed in any relevant regard between the trial court's implied denial of
CDCR's request for restraints in December 2008, and its granting of the
request in January 2009. The only apparent differences are that in
January, a representative of CDCR appeared in person, and the
prosecution — instead of merely submitting the matter as it did in
December — now argued for imposition of restraints. This is not enough to
warrant the change in the court's ruling. (Compare People v. Pride, supra,
3 Cal.4th at p. 231 & fn. 11 [although many incidents cited in support of
shackling order took place before April, at which time court and counsel
informally agreed physical restraints did not seem necessary, court
apparently was not aware of them until June hearing on sheriff's request to
impose restraints].)
The People quote the statement in People v. Gamache, supra, 48
Cal.4th at page 370, that "[g]iven time, [the defendant] might attempt
anything. The trial court was entitled to prepare for that risk." Considered
in isolation, this statement would permit shackling in all circumstances,
because, of course, anything is possible. The statement must be read in
the context in which it was made, however. In Gamache, the defendant
had made, and arguably started to carry out, plans to disrupt court
proceedings and even escape. The quoted statement responds to his
argument that his escape plans should have been discounted as the
product of a delusional mind.[fn135]
FN135: The People also note Johnson's verbal outburst
when the verdicts were read. Again, the fact that anything is
possible does not justify the imposition of physical restraints.
Moreover, assuming an outburst by Johnson could somehow
be relevant to a determination whether to restrain Dixon, it
had not occurred when the trial court made its ruling. (See
People v. Welch (1999) 20 Cal.4th 701, 739 [we review
correctness of trial court's ruling at time it was made and not
by reference to evidence produced later].)
The record shows there were six trained individuals in the courtroom —
three deputies and three CDCR officers — whose jobs were solely to
provide security by monitoring defendants. The three deputies were within
a few feet of defendants, and the correctional officers were between
defendants and the exit. In addition, the bailiff and Senior Officer Sherman
were usually in close proximity to defendants. Defendants did not object to
the presence of so many guards (as long as the correctional officers were
in civilian clothes, a state of affairs with which CDCR did not appear to
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have a concern), and Dixon does not now claim the number was
unreasonable. (See People v. Ainsworth (1988) 45 Cal.3d 984, 10031004.) There was no showing of "manifest need" for shackles, let alone
shackles in addition to the extra security.
The error was not prejudicial, however. The California Supreme
Court has "consistently held that courtroom shackling, even if error, [is]
harmless if there is no evidence that the jury saw the restraints, or that the
shackles impaired or prejudiced the defendant's right to testify or
participate in his defense. [Citations.]" (People v. Anderson, supra, 25
Cal.4th at p. 596.) Here, great care was taken to ensure the restraints
would not be visible to the jury, and the record contains no suggestion the
efforts in this regard were unsuccessful or that Dixon's participation in his
defense was impaired.
Clearly, too, the physical restraints did not prevent Dixon from
testifying in his own behalf. He says, however, that the leg restraints
resulted in the "conspicuous" procedure of his being the only witness to be
seated and sworn before jurors entered the courtroom. As a result, he
says, he and the jurors could not help but perceive he was being treated
differently from everyone else, even gang members or parolees like
Jackson.
We disagree. Jurors likely assumed Dixon was in custody, if not as
a result of the Tec-9 incident, then from the nature of the pending charges.
This is especially true since it was revealed, during Deputy Maxwell's
testimony, that Lee and Johnson were in custody. More importantly, the
record shows that Jackson, although sworn in the presence of the jury,
was already seated on the witness stand whenever the jurors entered the
courtroom. Burts, like Dixon, was seated and sworn outside the jury's
presence. Also like Dixon, jurors were informed that he had been advised
of his rights. Rather than assuming Dixon was being treated differently
because he was shackled, it is likely jurors assumed he (and Burts) were
sworn outside their presence because of some reason having to do with
the need to advise them of their rights, a process Jackson did not need to
undergo because he was testifying pursuant to an immunity
agreement.[fn136] There is simply no evidence any juror was aware Dixon
was in leg restraints when he was seated and sworn outside the jury's
presence. (See People v. McWhorter, supra, 47 Cal.4th at pp. 375376.)[fn137] Accordingly, and regardless of whether we apply the
Chapman or the Watson standard (see People v. Hernandez (2011) 51
Cal.4th 733, 744-746; People v. Mar, supra, 28 Cal.4th at p. 1225, fn. 7),
under the circumstances "the procedures implemented could not have
influenced ... the ... verdict. '[A]ny error was clearly harmless.' [Citations.]"
(People v. Cox, supra, 53 Cal.3d at pp. 652-653.)
FN136: Jurors subsequently were informed defendants had
a constitutional right not to testify.
FN137: We will not assume jurors must have been aware of
the physical restraints because the trial court gave an
admonition on the subject. (See People v. Miller (2009) 175
Cal.App.4th 1109, 1115.) The admonition initially was given
in conjunction with Maxwell's testimony, and was equally
aimed at the witnesses who were in custody when they
testified.
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2

People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 424-448.
2.

Legal Standard

3

The Sixth and Fourteenth Amendments to the United States Constitution assure a

4

criminal defendant the right to a fair trial. See Estelle v. Williams, 425 U.S. 501, 503

5

(1976). Visible shackling of a criminal defendant during trial "undermines the

6

presumption of innocence and the related fairness of the factfinding process" and

7

"'affront[s]' the 'dignity and decorum of judicial proceedings that the judge is seeking to

8

uphold.'" Deck v. Missouri, 544 U.S. 622, 630-31 (2005) (quoting Illinois v. Allen, 397

9

U.S. 337, 344 (1970)). See also Larson v. Palmateer, 515 F.3d 1057, 1062 (9th Cir.

10

2008). The Supreme Court has therefore held that "the Fifth and Fourteenth

11

Amendments prohibit the use of physical restraints visible to the jury absent a trial court

12

determination, in the exercise of its discretion, that they are justified by a state interest

13

specific to a particular trial." Deck, 544 U.S. at 629. Those interests include "physical

14

security," "courtroom decorum" and "courtroom security." Id. at 624, 628. Accordingly,

15

criminal defendants have "the right to be free of shackles and handcuffs in the presence

16

of the jury, unless shackling is justified by an essential state interest." Ghent v.

17

Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002). See also Jones v. Meyer, 899 F.2d 883,

18

884 (9th Cir. 1990); Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir. 1985).

19

Shackling is not unconstitutionally prejudicial per se. Illinois v. Allen, 397 U.S. at

20

343-44; Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir. 1995) ("shackling is inherently

21

prejudicial, but it is not per se unconstitutional"). Unjustified shackling does not rise to

22

the level of constitutional error unless the defendant makes a showing that he suffered

23

prejudice as a result. Ghent, 279 F.3d at 1132 (citing United States v. Olano, 62 F.3d

24

1180, 1190 (9th Cir 1995) and United States v. Halliburton, 870 F.2d 557, 561-62 (9th

25

Cir. 1989.). See also Larson, 515 F.3d at 1064 (state trial court's violation of the

26

petitioner's due process rights in requiring him to wear security leg brace during trial,

27

found to be harmless). The Ninth Circuit has held that "the greater the intensity of

28

shackling and the chains' visibility to the jurors, the greater the extent of prejudice."
154

1

Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989). Thus, it has been recognized that

2

"physical restraints such as a waist chain, leg irons or handcuffs may create a more

3

prejudicial appearance than more unobtrusive forms of restraint." Larson, 515 F.3d at

4

1064.

5

In Larson v. Palmateer, 515 F.3d 1057 (9th Cir. 2008), the jury saw the

6

defendant's leg shackles, and, when the shackles were removed in the midst of the trial,

7

the Court commented to the jury that the defendant had previously been wearing the

8

shackle for security reasons, and he would no longer be wearing it, due to a leg

9

impairment of the defendant. Id. at 1062. Because the record reflected no justification for

10

the visible leg shackle to be used during the first two days of trial, the Ninth Circuit

11

agreed that the defendant's "due process rights were violated when the trial court failed

12

to make a finding on the record justifying the necessity of physical restraints. . . ." Id. at

13

1063. The Ninth Circuit went on to determine, however, that, based on the record, the

14

error did not have a substantial and injurious effect or influence in determining the jury's

15

verdict under the harmless error standard articulated in Brecht, 507 U.S. 619 at 623.

16

In Ghent v. Woodford, 279 F.3d 1121 (9th Cir. 2002), issued before the Supreme

17

Court's decision in Deck, the Ninth Circuit determined that, "[i]n order for a defendant to

18

prevail on a claim of this nature, a court must find that the defendant was indeed

19

physically restrained in the presence of the jury, that the shackling was seen by the jury,

20

and that the physical restraint was not justified by state interests." Id. at 1132. In

21

addition, the defendant must show prejudice (harmful error). Id.

22

After reviewing the evidentiary hearing transcript on appeal and considering the

23

arguments of the parties in Ghent, the United States Court of Appeals for the Ninth

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Circuit determined:

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The evidence suggests that a few jurors at most glimpsed Ghent in
shackles in the hallway and as he was entering the courtroom. The jury's
"brief or inadvertent glimpse" of a shackled defendant is not inherently or
presumptively prejudicial, nor has Ghent made a sufficient showing of
actual prejudice.

28
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279 F.3d at 1133. See also Williams v. Woodford, 384 F.3d 567, 592 (9th Cir. 2002)

2

("Even if we assume that Williams's physical restraints at trial were unjustified, we

3

conclude that the district court properly held that the error was harmless. When the jury

4

never saw the defendant's shackles in the courtroom, we have held that the shackles did

5

not prejudice the defendant's right to a fair trial.").

6

In a federal habeas corpus proceeding such as this one, the federal court must

7

determine whether any error had a "substantial and injurious effect" on the jury's verdict.

8

Brecht v. Abrahamson, 507 U.S. at 623; Larson, 515 F.3d at 1064. See also Fry v. Pliler,

9

551 U.S. 112, 121-22 (2007) (Brecht harmless error review applies whether or not the

10

state court recognized the error and reviewed it for harmlessness). In this context, a

11

federal habeas court is to "determine whether what [the jurors] saw was so inherently

12

prejudicial as to pose an unacceptable threat to defendant's right to a fair trial." Holbrook

13

v. Flynn, 475 U.S. 560, 572 (1986). In the Ninth Circuit, "only the most egregious kind of

14

shackling has been found . . . to deny due process." Castillo v. Stainer, 983 F.2d 145,

15

148 (9th Cir. 1991).

16

3.

Analysis

17

The state court, in denying Petitioner's claim, found that even though there was

18

not sufficient cause to shackle Petitioner, the error was harmless as the jury never saw

19

the leg restraints used on Petitioner. Based on the facts as recounted by the state court,

20

which this court must presume as correct, “great care was taken to ensure the restraints

21

would not be visible to the jury, and the record contains no suggestion the efforts in this

22

regard were unsuccessful or that Dixon's participation in his defense was impaired.” 28

23

U.S.C. § 2254(e)(1); Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 446. This Court, in

24

determining if the state court decision was reasonable, may only rely upon the record

25

before the state court. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d

26

557 (2011) ("We now hold that review under § 2254(d)(1) is limited to the record that

27

was before the state court that adjudicated the claim on the merits.") Based on the

28

evidence in the record, Petitioner has not shown that the jurors ever saw the restraints.
156

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Petitioner instead argues that the jury would have been aware of the conspicuous

2

procedure of transporting and swearing him in at the jury stand while the jury was not

3

present in the courtroom. (Pet. at 37.) Petitioner has not provided any legal authority that

4

the use of an alternate procedure to prevent the jury from seeing shackles has ever

5

been a basis for relief. This court may only find habeas relief if there is a violation of

6

clearly established Supreme Court law. See 28 U.S.C. § 2254(d). The Supreme Court

7

has clearly held that “the Constitution forbids the use of visible shackles…” Deck, 544

8

U.S. 622, 624 (2005). Having presented the Court with no evidence that Petitioner’s

9

shackles were ever visible to the jury, Petitioner is not entitled to habeas relief.

10

Even if it was assumed that clearly established Supreme Court law was violated,

11

the state court was reasonable in determining that the error was harmless. The state

12

court explained that other witnesses were also transported and sworn in outside the

13

presence of the jury. Despite Petitioner’s contention that the procedure would draw

14

attention to the fact that he was already in custody or shackled, it is improbable that the

15

jury understood that the movement of parties in the courtroom while they were not

16

present was only attributable to his shackling. Moreover, even if jurors contemplated that

17

Petitioner might have been shackled, the potential bias created from the events does not

18

come close to approaching the standard that Petitioner was harmed, and more likely

19

convicted in light of procedures used to prevent jurors from seeing his shackles.

20

Petitioner has not made a sufficient showing that his shackles had an injurious effect on

21

the verdict.

22

Given that the jury never saw Petitioner's restraints, any error did not have a

23

substantial and injurious impact on the jury's verdict, and the appellate court's

24

determination of this issue was not contrary to, or an unreasonable application of, clearly

25

established Supreme Court precedent. Habeas corpus relief is foreclosed.

26

H.

Claim Eight – Juror Misconduct

27

Petitioner claims that the trial court erred in not dismissing two jurors whot

28

carpooled with a third juror whot was found to have committed misconduct by blogging
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about the case during trial. Petitioner contends that the two other jurors engaged in

2

inappropriate conversations with the third juror during the car rides to and from the trial.

3

1.

State Court Decision

4

Petitioner presented this claim by way of direct appeal to the California Court of

5

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

6

appellate court and summarily denied in subsequent petition for review by the California

7

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

8

opinion is summary in nature, this Court "looks through" that decision and presumes it

9

adopted the reasoning of the California Court of Appeal, the last state court to have

10

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

11

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

12

C.

13

15

Johnson and Dixon each contend the trial court erred by refusing to
discharge two jurors for misconduct when they admitted talking about the
case together prior to deliberations. Dixon joins in Johnson's argument,
and Lee joins in both. The People say the trial court properly declined to
excuse the jurors.

16

1.

17

At the outset of jury selection, the trial court instructed potential
jurors not to discuss the case or anything occurring in the courtroom with
anyone prior to deliberations, to maintain an open mind, and not to form
an opinion until deliberations. At breaks during trial, the court admonished
jurors not to talk to anyone about the case, and to maintain open minds.
On February 6, 2009, however, it was brought to the court's attention that
Juror No. 1244336 had had a blog since at least August 3, 2008, and that
she had included comments about jury selection, and then the trial itself,
in her blogs of November 17, 20, and 24, 2008; December 5, 8, 11, 15,
16, 21, and 30, 2008; January 15, 23, and 29, 2009, and February 3,
2009.[fn138] On December 16, 2008, the juror posted, "[T]his is my secret
blog. I don't know how secret it really is though. I want to tell secret jury
things." At least one of her posts drew a comment from a family member
who "love[d]" the blogger's "hypothetical question to a case that you can
not talk about (let alone blog about)." One of her posts referred to
"everyone" she talked to who found out she was on the jury.

14

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Juror Misconduct

Background

27

FN138: The blog, which was designated court's exhibits, was
brought to the prosecutor's attention by a member of the
media. The prosecutor brought it to the attention of the court
and defense the next day.

28

The People sought to have the blogging juror removed. Counsel for

26

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Lee asked the court to question the blogging juror and Juror Nos. 1267086
and 1355968, with whom she carpooled, followed by an inquiry of the
remaining members of the jury and alternates to investigate whether any
had discussed the case in violation of the court's admonitions. Counsel for
the other defendants joined.
After further discussion, Juror No. 1244336 was brought into the
courtroom. Under questioning by the court, she admitted having a blog
and discussing on it the general court experience, but denied saying
anything about this case. Shown a printout of her blog entries, she
apologized. She said she had not been talking about the case, but that
"everybody" knew she was on jury duty.
Asked specifically about the two jurors who carpooled with her,
Juror No. 1244336 said they tried "really hard," when in the car together,
"not to deliberate," and she asserted they had "not done that." There had
been times, however, when they tried to get straight something they
heard. The juror pointed to a timeline that was on a poster and had been
shown the jury during opening statements. She related that she could see
it from where she sat, but one of the people with whom she travelled could
not, and so that juror would ask about a particular date, and Juror No.
1244336 would say what she saw on the timeline.[fn139] On other
occasions, as the jurors drove on Highway 58, one of them would jokingly
tell the driver not to get off on Cottonwood. Juror No. 1244336 related that
the jurors talked about the experience of being together, but did not
express opinions concerning the case.
FN139: The prosecutor subsequently explained that it had
been the prosecution's intent all along ultimately to mark the
timeline, a double-sized poster used during the course of
opening statements, as an exhibit and move it into evidence.
The court had Juror No. 1244336 taken to a secretarial area. It then
found she had committed serious and willful misconduct, and good cause
to believe she would not be able to perform her duties, including the
obligation to follow the court's instructions. The parties then stipulated that
she was to be excused.
Juror No. 1267086 was subsequently examined. She denied
discussing the facts of the case with anyone. She commuted with Juror
Nos. 1244336 and 1355968, and they did not deliberate or discuss the
case because the court had told them not to. They might have talked,
however, about frustration because of the length of the case. Juror No.
1267086 saw their talk as "idle chitchat," not anything that might
jeopardize the case. She could not think of any discussions regarding any
court exhibits or timelines. She personally did not have an Internet site or
use the Internet socially, but she knew Juror No. 1244336 was a
photographer and so emailed her a picture of a rainbow. Juror No.
1244336 said she had used the photograph on her site, but Juror No.
1267086 had not seen anything or posted anything on the Internet to do
with this case.
Asked if she had had any direct contact with any of the jurors
regarding anything about this case, Juror No. 1267086 answered that they
had discussed a little bit about some of the witnesses, along the lines of
feeling a bit sympathetic about their circumstances. The juror assured the
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court that nothing had affected her ability to be fair to both sides, however;
the way she saw it, they had not heard the whole case. She thought there
were a lot of circumstances that still had to be looked at equally and fairly
both ways. She stated that to come to a judgment at this point would be
wrong.
Juror No. 1267086 related that she and Juror No. 1244336 had not
discussed the facts of the case. Juror No. 1267086 did not know if Juror
No. 1244336 had had any communication with anyone else; although they
lived in the same town, they did not socialize. With respect to the picture
she sent, Juror No. 1267086 did see it and some other pictures Juror No.
1244336 took, but that was all. She did not read anything or see any
references about the case. Although she could have looked at the
writings, she did not. Her computer was old and slow and she was in a
hurry, so she just scrolled through the blog and found the picture and
logged off. She had not looked at the blog since then. It would not affect
her ability to be fair and impartial.
Juror No. 1355968 was then examined. She did not recall any
conversations with anyone regarding the facts of the case. Asked if she
had any type of communication with Juror No. 1244336 through any
Internet format, Juror No. 1355968 said no, that she did not even know
how to use the Internet. She did not know what a blog was. She had not
had any communication about any issue regarding people, places,
exhibits, or anything along those lines, with anyone on the jury or with third
parties. All she ever did was to tell her boss that she did not know when
she would be back, and to ask her brother to feed her animals in case she
could not get home one night. If anybody asked her, she just told them no
questions, and they abided by that request.
Asked if she or any of the jurors had talked about any aspect of a
witness's testimony or a photograph or document like the board that was
brought up during opening statements, Juror No. 1355968 said the only
thing mentioned about the timeline was that they wished it was where they
could see it better. She said it was her understanding it would be in the
room when they went into deliberations. Told by the court that was so if it
came into evidence, she assured the court it did not affect her ability to be
fair and impartial. She was more of a note-taker than some of the others,
and she was concerned with chronology. She heard nothing said about
emotions or feelings regarding any witness.
The court had Juror No. 1244336 brought back in and excused her.
The parties subsequently requested additional inquiry of Juror Nos.
1267086 and 1355968. Counsel for Dixon and Lee argued it was obvious
some discussion had taken place, and since those jurors were not being
candid about it, they should be dismissed. Counsel for Lee further argued
that having or not having sympathy for certain witnesses and their plight
was also a violation of jurors' oaths and the court's admonitions.
Juror No. 1267086 was returned to the courtroom. She admitted
asking the two jurors with whom she carpooled if they had seen the
timeline, because she never had a chance to look at it and they sat closer
to it than she did. That was the extent of the conversation, except for Juror
No. 1267086 saying she guessed they would be able to look at it during
deliberations. She did not recall what the others said in response, "[j]ust
nothing, really." She did not think there had been any other
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communication with them about any other piece of evidence. With regard
to sympathy regarding certain witnesses, the conversation was just that it
was sad so many people in the world had to go through such a hard time
to live their lives and to be brought up in hard situations. There were no
discussions regarding a particular witness or defendant or a particular
person's plight and how it might have touched or impacted that person's
involvement in this case. Juror No. 1267086 related that for her
personally, it did not matter one way or the other. It was more along the
lines of, she could have been born anywhere in the world, and by the
grace of God was born to a good mother and father and ended up where
she did. The plight or station in life of any of the people who were
discussed did not cause her to have sympathy or prejudice regarding the
outcome of the case, and did not impact her ability to judge each
defendant and each situation individually and fairly.
Juror No. 1355968 was then brought in. She recalled the issue of
the timeline arising during a conversation about what would be brought
into the jury room when they deliberated. They assumed the timeline
would be brought in, so the matter was just dropped. There was no
discussion about the significance of any particular date or time. The juror
believed the subject arose because they had started out with evidence
concerning the first day, then jumped a bit, then returned to the first day.
Juror No. 1355968 recalled passing the Cottonwood off-ramp, and
someone — possibly her — pointing it out. Nothing further was said about
it. The juror did not believe anything was said about sympathy regarding
witnesses or anyone involved in the case. She did not talk about it with
anyone. She believed she could still be fair and impartial.
The prosecutor urged the court not to judge Juror No. 1267086's
credibility by what was said by Juror No. 1244336, whom the prosecutor
termed "a complete liar." He observed that Juror No. 1267086 appeared to
be very serious about what was going on and the true nature of the
undertaking, and the court confirmed that her body language seemed to
convey that. The prosecutor argued that she and Juror No. 1355968 both
assumed — validly — that they would be able to view the timeline during
deliberations, and they did not ask questions of each other about specific
dates or times for events. The prosecutor further argued that any feeling of
sympathy was not about any specific individuals, but, in light of some of
the testimony concerning people's situations, was merely a reflection of
human nature. Moreover, an offhand comment about not being able to get
off on Cottonwood did not show any kind of prejudgment. The prosecutor
concluded that the conversations were "very innocuous stuff" and did not
come close to what Juror No. 1244336 had done, and that the other two
jurors were credible and should not be removed from the case.
Counsel for Johnson argued the jurors should not be talking to
each other about the case at all, and he joined in the arguments of
counsel for Dixon and Lee. He asserted that all three jurors committed
clear misconduct, thereby raising a presumption of prejudice, and he
requested that Juror Nos. 1267086 and 1355968 be removed and
alternate jurors substituted. Counsel for Dixon and Lee agreed.
The court found, from the totality of the testimony of Juror Nos.
1267086 and 1355968, including their body language and the manner in
which they testified, that there was no willful failure to comply with the
court's instructions or breach of duty or misconduct on their part. Further, if
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there was misconduct, the presumption of prejudice was rebutted by their
testimony. The court found no substantial likelihood of prejudice on their
part, or anything that would undermine the integrity of the trial or result in
any unfairness. The jury was then brought in, and the court asked if any of
the other jurors had had any discussion or communication, by Internet or
any other means, among themselves or with anyone else, about any piece
of evidence or witness or the nature of the case. There were no positive
responses. The court then explained why Juror No. 1244336 was
excused, and reiterated the jurors' oaths to try the case according only to
the evidence presented, and the instructions and admonitions not to
discuss the case before deliberations. The court admonished jurors not to
give the excusal any weight or regard, then an alternate was selected and
sworn to take Juror No. 1244336's place. The court also asked Juror Nos.
1267086 and 1355968 to drive separately, which they agreed to do.
The timeline ultimately was admitted into evidence, and the
prosecutor used it in summation. In the course of jury instructions, jurors
were cautioned again not to decide the case based on sympathy or
prejudice.

11

Johnson subsequently moved for a new trial based on juror
misconduct. His motion was denied.

12

2.

13

"If at any time, whether before or after the final submission of the
case to the jury, a juror ... upon ... good cause shown to the court is found
to be unable to perform his or her duty, ... the court may order the juror to
be discharged ...." (§ 1089.) A trial court's decision whether to retain or
discharge a juror is reviewed for abuse of discretion, and will be upheld
unless it falls outside the bounds of reason. (People v. Earp, supra, 20
Cal.4th at p. 892; People v. Marshall (1996) 13 Cal.4th 799, 843.) Its
discretion in this regard is broad (People v. Boyette (2002) 29 Cal.4th 381,
462, fn. 19); however, "'[b]efore an appellate court will find error in failing
to excuse a seated juror, the juror's inability to perform a juror's functions
must be shown by the record to be a "demonstrable reality." The court will
not presume bias, and will uphold the trial court's exercise of discretion on
whether a seated juror should be discharged for good cause under section
1089 if supported by substantial evidence. [Citation.]' [Citations.]" (People
v. Farnam, supra, 28 Cal.4th at p. 141; accord, People v. Martinez (2010)
47 Cal.4th 911, 943.)

14
15
16
17
18
19
20
21

Analysis

27

"An accused has a constitutional right to a trial by an impartial jury.
[Citations.] An impartial jury is one in which no member has been
improperly influenced [citations] and every member is '"capable and willing
to decide the case solely on the evidence before it"' [citations]." (In re
Hamilton (1999) 20 Cal.4th 273, 293-294; Smith v. Phillips (1982) 455
U.S. 209, 217; see also Ristaino v. Ross (1976) 424 U.S. 589, 595, fn. 6.)
"A defendant is 'entitled to be tried by 12, not 11, impartial and
unprejudiced jurors. "Because a defendant charged with a crime has a
right to the unanimous verdict of 12 impartial jurors [citation], it is settled
that a conviction cannot stand if even a single juror has been improperly
influenced." [Citations.]' [Citations.]" (People v. Harris (2008) 43 Cal.4th
1269, 1303.)

28

"[W]here a verdict is attacked for juror taint, the focus is on whether

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there is any overt event or circumstance, 'open to [corroboration by] sight,
hearing, and the other senses' [citation], which suggests a likelihood that
one or more members of the jury were influenced by improper bias. [¶]
When the overt event is a direct violation of the oaths, duties, and
admonitions imposed on actual or prospective jurors, such as when a juror
conceals bias on voir dire, consciously receives outside information,
discusses the case with nonjurors, or shares improper information with
other jurors, the event is called juror misconduct. [Citations.]" (In re
Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted.) Misconduct can be
good cause for discharge of a juror under section 1089 (People v.
Ledesma (2006) 39 Cal.4th 641, 743) even if it is "'neutral'" in the sense it
does not suggest bias toward either side (People v. Daniels, supra, 52
Cal.3d at pp. 863-864), but removal is not necessarily the remedy required
in every case (see People v. Guzman (1977) 66 Cal.App.3d 549, 559).
In determining whether discharge is required in a particular case, it
must be remembered that "[m]isconduct by a juror ... usually raises a
rebuttable 'presumption' of prejudice. [Citations.]" (In re Hamilton, supra,
20 Cal.4th at p. 295; Remmer v. United States (1954) 347 U.S. 227, 229;
People v. Guzman, supra, 66 Cal.App.3d at p. 559.)"Still, whether an
individual verdict must be overturned for jury misconduct or irregularity '"'is
resolved by reference to the substantial likelihood test, an objective
standard.'"' [Citations.] Any presumption of prejudice is rebutted, and the
verdict will not be disturbed, if the entire record in the particular case,
including the nature of the misconduct or other event, and the surrounding
circumstances, indicates there is no reasonable probability of prejudice,
i.e., no substantial likelihood that one or more jurors were actually biased
against the defendant. [Citations.]
"The standard is a pragmatic one, mindful of the 'day-to-day
realities of courtroom life' [citation] and of society's strong competing
interest in the stability of criminal verdicts [citations]. It is 'virtually
impossible to shield jurors from every contact or influence that might
theoretically affect their vote.' [Citation.] Moreover, the jury is a
'fundamentally human' institution; the unavoidable fact that jurors bring
diverse backgrounds, philosophies, and personalities into the jury room is
both the strength and the weakness of the institution. [Citation.] '[T]he
criminal justice system must not be rendered impotent in quest of an everelusive perfection.... [Jurors] are imbued with human frailties as well as
virtues. If the system is to function at all, we must tolerate a certain
amount of imperfection short of actual bias.' [Citation.]" (In re Hamilton,
supra, 20 Cal.4th at p. 296; see also People v. Danks (2004) 32 Cal.4th
269, 302-303.)[fn140]
FN140: Citing Remmer v. United States, supra, 347 U.S. at
page 229, defendants contend California's "'substantial
likelihood'" test conflicts with United States Supreme Court
authority that they say requires a showing of no actual
prejudice. Remmer involved attempted jury tampering that
did not come to light until after the jury returned its verdict. In
his motion for a new trial, the defendant requested an
evidentiary hearing on the matter, but the trial court denied
the new trial motion without holding a hearing. (Id. at pp.
228-229.) In remanding the matter for a hearing, the United
States Supreme Court stated in part: "The presumption [of
prejudice] is not conclusive, but the burden rests heavily
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upon the Government to establish, after notice to and
hearing of the defendant, that such contact with the juror
was harmless to the defendant. [Citations.]" (Id. at p. 229.)
The California Supreme Court has consistently adhered to
the "substantial likelihood" standard, often stating it in
conjunction with Remmer (see, e.g., People v. Foster, supra,
50 Cal.4th at p. 1342; People v. Lewis (2009) 46 Cal.4th
1255, 1309), and has rejected the notion that standard is
inconsistent with federal law (People v. Loker (2008) 44
Cal.4th 691, 747). Accordingly, we reject defendants' claim.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
"'Whether prejudice arose from juror misconduct ... is a mixed
question of law and fact subject to an appellate court's independent
determination.' [Citation.] However, '[w]e accept the trial court's credibility
determinations and findings on questions of historical fact if supported by
substantial evidence.' [Citation.]" (People v. Danks, supra, 32 Cal.4th at
pp. 303-304.) With respect to credibility determinations, the trial court's
assessment of jurors' states of mind will not necessarily be dispositive,
such as when there is inherent prejudice (see Holbrook v. Flynn (1986)
475 U.S. 560, 570 [courtroom security arrangement]) or where bias is
"clearly apparent" from the record (People v. San Nicolas (2004) 34
Cal.4th 614, 646). While a juror's declaration of impartiality may not be
conclusive (Irvin v. Dowd (1961) 366 U.S. 717, 728; People v. Williams
(1989) 48 Cal.3d 1112, 1129), neither is it irrelevant: "'[One] may not know
or altogether understand the imponderables which cause one to think
what he thinks, but surely one who is trying as an honest man to live up to
the sanctity of his oath is well qualified to say whether he has an unbiased
mind in a certain matter.' [Citations.]" (Smith v. Phillips, supra, 455 U.S. at
p. 217, fn. 7.)
At the time of trial, section 1122 provided, in pertinent part: "(a)
After the jury has been sworn and before the people's opening address,
the court shall instruct the jury generally concerning its basic functions,
duties, and conduct. The instructions shall include, among other matters,
admonitions that the jurors shall not converse among themselves, or with
anyone else, on any subject connected with the trial; .... [¶] (b) The jury
shall also, at each adjournment of the court before the submission of the
cause to the jury, ... be admonished by the court that it is their duty not to
converse among themselves, or with anyone else, on any subject
connected with the trial, or to form or express any opinion thereon until the
cause is finally submitted to them."
As previously described, defendants' jury was so instructed.
Violation of the admonitions contained in section 1122 is misconduct;
when the violation is in the form of discussing the case with a nonjuror, it
is serious misconduct. (People v. Wilson (2008) 44 Cal.4th 758, 838, 840;
In re Hitchings (1993) 6 Cal.4th 97, 117-118.) When, however, the
"misconduct is '"'of such a trifling nature that it could not in the nature of
things have been prejudicial to the moving party and where it appears that
the fairness of the trial has been in no way affected by such impropriety,
the verdict will not be disturbed.'"' [Citation.]" (People v. Stewart (2004) 33
Cal.4th 425, 510; see also People v. Wilson, supra, 44 Cal.4th at pp. 839840.)

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In the present case, the trial court found Juror Nos. 1267086 and
1355968 to be credible, and to not have willfully failed to comply with the
court's instructions. Substantial evidence supports these determinations.
Although there were technical violations of section 1122 and the court's
admonitions, the violations were not pervasive, in that they occurred only
occasionally insofar as the record shows with respect to these jurors, as
opposed to Juror No. 1244336. They also were not substantive, as they
did not involve deliberative-type discussions about the merits of the case.
(Contrast People v. Cissna (2010) 182 Cal.App.4th 1105, 1118.) For
example, the timeline ultimately was admitted into evidence, and,
according to the testimony implicitly credited by the court, there were no
discussions about particular dates or times. Moreover, insofar as we can
ascertain from the printed copy of the blog that is contained in the record,
it was indeed possible for Juror No. 1267086 to view the photograph she
emailed to Juror No. 1244336 without reading the latter's blog entries.
Defendants argue that, through their sympathy for what could only
have been prosecution witnesses, the jurors exhibited actual bias, and so
the trial court's findings of fact established actual prejudice. We disagree.
Jurors are not precluded from thinking about a case prior to deliberations
(People v. Wilson, supra, 44 Cal.4th at p. 840); moreover, they are not
instructed not to feel sympathy for someone involved, but rather not to
base their decision on sympathy or prejudice. What matters is whether the
individual can separate feelings and emotions from his or her duties as a
juror, and evaluate the evidence fairly and decide the case solely on the
evidence presented at trial.
Here, the trial court's inquiry was more than adequate (compare
People v. Farnam, supra, 28 Cal.4th at pp. 139-142 with People v. McNeal
(1979) 90 Cal.App.3d 830, 835-838), and that court was in the best
position to observe the jurors' demeanors when it questioned them about
their ability to perform their duties. In addition, it emphasized and
reiterated pertinent admonitions, which, under the circumstances,
dispelled the presumption of prejudice. (See People v. Tafoya (2007) 42
Cal.4th 147, 192-193.)
The record establishes that the conversations and comments
engaged in by Juror Nos. 1267086 and 1355968 "'[are] not, judged
objectively, "inherently and substantially likely to have influenced the
juror[s]." [Citation.] Nor [do they] objectively demonstrate a substantial
likelihood, or even a reasonable possibility, of actual bias. [Citations.]'
[Citation.]" (People v. Lewis, supra, 46 Cal.4th at p. 1309, fn. omitted.)
Accordingly, any presumption of prejudice stands rebutted, and the trial
court did not abuse its discretion in refusing to discharge either or both
jurors.[fn141]
FN141: "Since we find no violation of section 1089, a statute
that [the California Supreme Court has] previously held is
consistent with state and federal constitutional proscriptions,
our conclusion also necessarily disposes of defendant[s']
state and federal constitutional claims. [Citation.]" (People v.
Martinez, supra, 47 Cal.4th at p. 943, fn. 6.)
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 448-470.
2.

Legal Standard
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The Fourteenth Amendment of the United States Constitution safeguards a

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criminal defendant's Sixth Amendment right to be tried by a panel of impartial and

3

indifferent jurors. See Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Hayes v. Ayers,

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632 F.3d 500, 507 (9th Cir. 2011) (quoting Irvin, 366 U.S. at 722) ("The Sixth

5

Amendment right to a jury trial 'guarantees to the criminally accused a fair trial by a

6

panel of impartial, indifferent jurors.'") "It is not required, however, that the jurors be

7

totally ignorant of the facts and issues involved." Irvin, 366 U.S. at 722-23 (finding that

8

mere existence of preconceived notion of guilt or innocence of accused is insufficient by

9

itself to rebut the presumption that a prospective juror is impartial). Rather, due process

10

requires that a defendant be tried by "a jury capable and willing to decide the case solely

11

on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982); see also Fields v.

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Brown, 503 F.3d 755, 766 (9th Cir 2007). Jurors are objectionable if they have formed

13

such strong and deep impressions that their minds are closed against conflicting

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testimony. See Irvin, 366 U.S. at 722 n.3. The presence of even one biased juror

15

deprives a defendant of the right to an impartial jury. Dyer v. Calderon, 151 F.3d 970,

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973 (9th Cir. 1998).

17

The Sixth Amendment also requires the jury verdict be based entirely on the

18

evidence produced at trial. Turner v. Louisiana, 379 U.S. 466, 472-473 (1965). When

19

presented with allegations of jury misconduct or juror bias, the trial court is required to

20

determine what transpired, the impact on the jurors, and whether or not what transpired

21

was prejudicial. Remmer v. United States, 347 U.S. 227, 229-230 (1954); Dyer, 151 F.3d

22

at 974 ("A court confronted with a colorable claim of juror bias must undertake an

23

investigation of the relevant facts and circumstances."). As the Supreme Court noted:

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[T]ampering directly or indirectly, with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed presumptively
prejudicial . . . The presumption is not conclusive, but the burden rests
heavily upon the Government to establish, after notice to and hearing of
the defendant, that such contact with the juror was harmless to the
defendant.
Remmer, 347 U.S. at 229 (citing Mattox v. United States, 146 U.S. 140, 148-150 (1892));

28
166

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see also Xiong v. Felker, 681 F.3d 1067, 1076 (9th Cir. 2012).

2

Further, the evaluation of claims of juror misconduct depends on whether the

3

misconduct is based on extrinsic influences or intrinsic influences. When the misconduct

4

stems from an extrinsic or external influence, prejudice is presumed unless the

5

government shows it was harmless. See United States v. Remmer, 347 U.S. at 228-29

6

(1954); Xiong v. Felker, 681 F.3d at 1076 (9th Cir. 2012) ("The presumption of prejudice

7

that arises from juror misconduct, although strong, is not conclusive; 'the burden rests

8

heavily upon the Government to establish, after notice to and hearing of the defendant,

9

that such contact with the juror was harmless to the defendant.'") The situation is

10

different when the alleged misconduct is intrinsic to the jury's deliberations.

11

Premature deliberations among jurors are "not as serious as" private

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communication, outside contact, or tampering. Davis v. Woodford, 384 F.3d 628, 653

13

(9th Cir. 2004). "What is crucial is not that jurors keep silent with each other about the

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case but that each juror keep an open mind until the case has been submitted to the

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jury." Id. at 653 (internal quotation marks omitted). Thus, unless premature deliberations

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deprive the petitioner of a fair trial, they will not warrant habeas relief. Belmontes v.

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Brown, 414 F.3d 1094, 1124-25 (9th Cir. 2005), overruled on other grounds by, Ayers v.

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Belmontes, 549 U.S. 7 (2006).

19

3.

Analysis

20

The trial court, upon being informed that a juror was writing blog posts on the

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internet about the case, took steps to interview the blogging juror and the two jurors that

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were carpooling and might have had improper conversations with the blogging juror. The

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blogging juror was dismissed. Upon questioning, it was determined that neither of the

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other jurors had observed or read any of the information placed on the internet by the

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other juror. The findings of the state court are presumed correct. Indeed,Petitioner does

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not claim that that there was evidence the two jurors saw extrinsic evidence that could

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have improperly biased them. As the jurors were not presented with extrinsic

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information, no presumption of prejudice applies. See Remmer, 347 U.S. at 228-29;
167

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Xiong v. Felker, 681 F.3d at 1076.

2

The only factual issues that were presented to the state court related to

3

conversations among the jurors while carpooling. One of the conversations involved the

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contents of a timeline exhibit that one of the jurors was unable to see during the

5

proceeding. The trial court determined upon examination that the two jurors appeared

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credible and it believed their testimony that there was no discussion of specific dates or

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events on the timeline and that the conversation ended when they agreed they would

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review the exhibit during deliberations. The state court found that the conversation was

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not substantive, and did not involve deliberative-type discussions. This Court agrees..

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Nothing about the conversation implicated that the juror had prematurely decided the

11

case. If anything, it was the opposite – the juror’s statements that he or she had not

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observed an exhibit created an inference that the juror was attempting to collect the

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evidence presented so that the juror could ultimately make a determination based on all

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of the facts. None of the statements indicated that that the jurors were engaged in

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premature deliberations or no longer had an open mind about the case so as to deprive

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Petitioner of a fair trial. The conversation was innocuous, and not a basis for habeas

17

relief.

18

Two other potential conversations or comments were made while the jurors were

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carpooling. One involved a juror either mentioning or joking not to get off at the

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Cottonwood exit, and another instance involved a juror feeling sympathy for a witness.

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The Supreme Court has noted that jurors need not be “totally ignorant of the facts and

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issues involved." Irvin, 366 U.S. at 722-23. Regardless of the guilt or innocence of

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Petitioner or his co-defendants, there was no question that victim Edwin McGowen was

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shot in an incident on March 21, 2007, victims Anthony Lyons, James Wallace, Vanessa

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Alcala (and her unborn child), were shot on April 19, 2007, and victim Adrian Bonner

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was shot on August 11, 2007, regardless whether Petitioner and his co-defendants were

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the perpetrators of the crimes. It was not unreasonable for the jurors to react to hearing

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about the amount of violence in the neighborhoods at or near the Cottonwood exit by
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attempting to avoid the area. Even if one of the jurors joked about not exiting the freeway

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on that off-ramp, the comment does not indicate that the juror was not remaining open

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about the outcome of the case. Likewise, feeling sympathy for a witness is a human

4

reaction, and does not, in and of itself, indicate that a juror is biased or has prematurely

5

decided the case. Having been presented with evidence of violent crimes which resulted

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in the loss of life, it is not unreasonable for a juror to feel sympathetic to a witness who

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either saw the events or was impacted by their results. As the state court found, jurors

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are not instructed not to feel sympathy for someone involved, but just make sure that

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they do not base their decision on sympathy or prejudice. The state court conducted a

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sufficient inquiry, and nothing in the record indicated that the jurors were unable to

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separate their feelings and emotions from their duties as jurors and make an impartial

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decision based on the evidence presented at trial. While not determinative by itself, the

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jurors assured the trial court that despite the comments and interactions with the

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dismissed juror, they could remain impartial and fairly decide the case. (Rep. Tr. at 7899,

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7905.) Further, after the juror was dismissed, the trial court repeated admonitions not to

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discuss the case and to only decide the case based on the evidence presented in court.

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Given these facts, the state court reasonably concluded that Petitioner was not deprived

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of his right to a fair and impartial jury.

19

On collateral review, trial errors - such as extraneous information that was

20

considered by the jury - are generally subject to a 'harmless error' analysis, namely,

21

whether the error had 'substantial and injurious' effect or influence in determining the

22

jury's verdict. Jeffries v. Wood, 114 F.3d 1484, 1491 (9th Cir. 1997)) (citing Brecht v.

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Abrahamson, 507 U.S. 619, 638 (1993)); see also Sassounian v. Roe, 230 F.3d 1097,

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1108 (9th Cir. 2000). Had a constitutional violation occurred, habeas relief must still be

25

denied because it did not have a substantial effect upon the jury’s verdict. The improper

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comments by the jurors were mere observations regarding not being able to see an

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exhibit presented at trial and a discussion of feeling sympathy towards the position of a

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victim. Both remaining jurors testified that they were still able to fairly decide the case
169

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and were properly admonished. Under these circumstances, any error did not have a

2

“substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507

3

U.S. at 623; see also Sassounian v. Roe, 230 F.3d 1097, 1108-1109 (9th Cir. 2000)

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(applying Brecht to allegation of juror misconduct).

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Accordingly, the court of appeal's rejection of Petitioner's claim was neither

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contrary to, nor an unreasonable application of, clearly established federal law. Habeas

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relief is not warranted as to this claim.

8

I.

Claim Nine – Jury Instructions as to Unnamed Perpetrators

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Petitioner next claims that the trial court violated his federal rights in instructing

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the jury with CALCRIM No. 373 regarding the testimony of potential accomplices.

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Alternatively, Petitioner contends that counsel was ineffective for failing to challenge the

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instruction.

13

1.

State Court Decision

14

Petitioner presented this claim by way of direct appeal to the California Court of

15

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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appellate court and summarily denied in subsequent petition for review by the California

17

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

18

opinion is summary in nature, this Court "looks through" that decision and presumes it

19

adopted the reasoning of the California Court of Appeal, the last state court to have

20

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

21

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

22

D.

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24

The instructions given the jury in this case were lengthy and, as to
some matters, quite complex. Defendants now raise claims of error with
respect to several of them.

25

1.

26

Dixon says the trial court erred by giving CALCRIM No. 373 (Other
Perpetrator), or at least excluding Agustin and Jackson from its purview.
He says the instruction discouraged jurors from discussing the effect of
potential future prosecution (and fear thereof) on those witnesses'
credibility, because some speculation is inherent in any full consideration

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Jury Instructions

Unjoined Perpetrators

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of the impact of potential prosecution of an accomplice. The error, he
says, deprived him of his state and federal constitutional rights to due
process and a fundamentally fair trial, as well as his right to confront
witnesses and to present a meaningful defense. Johnson and Lee join.
The People say the claim of error was forfeited by defendants' failure to
object to the instruction, but in any event, when considered in context with
additional accomplice instructions, CALCRIM No. 373 was proper.
a.

Background

Sara Agustin and Dupree Jackson testified under agreements
granting them use immunity, with respect to this case, for everything
except perjury. Agustin testified to an understanding that the district
attorney's office had conferred immunity from the use of any statements
made while testifying in this case and any future prosecution, other than
for perjury. She further testified she had not been granted immunity from
federal prosecution or deportation. Jackson testified to an understanding
that he could not be prosecuted for any type of criminal activity he might
admit, while testifying, to having done in the past. He further testified he
had not been given any other immunity agreements, including with respect
to potential federal prosecution. The written immunity agreements were
admitted into evidence.
During the jury instruction conference, the trial court decided it
would give CALCRIM No. 373, but strike the last bracketed sentence.
When asked, no party voiced any objection.
Jurors subsequently were instructed that, in determining the
credibility of a witness, they could consider anything that reasonably
tended to prove or disprove the truth or accuracy of the testimony,
including, inter alia, whether the witness's testimony was influenced by a
personal interest in how the case was decided, and whether the witness
was promised immunity or leniency in exchange for his or her testimony.
Jurors were also instructed to determine whether Agustin was an
accomplice to the crime of conspiracy to participate in a criminal street
gang, as charged in count nine, and participating in a street gang, as
charged in count eleven. If so, jurors were told they could not convict
defendants of those charges based on her uncorroborated testimony
alone. Jurors were further told that if the crime of conspiracy to commit the
murder of David "Fumes" Taylor was committed, then Jackson was an
accomplice to that crime, and defendants could not be convicted of that
offense based on Jackson's uncorroborated testimony alone. Jurors were
told that the testimony of one accomplice could not corroborate the
testimony of another accomplice, and to view with caution any statement
or testimony of an accomplice that tended to incriminate defendants.
Pursuant to CALCRIM No. 373, jurors were told: "The evidence
shows that another person or other persons may have been involved in
the commission of the crimes charged against the defendants. There may
be many reasons why someone who appears to have been involved might
not be a co-defendant in this particular trial. You must not speculate about
whether that other person has or those other persons have been or will be
prosecuted. Your duty is to decide whether the defendants here on trial
have committed the crimes charged." The court omitted the bracketed
optional sentence, which would have provided: "[This instruction does not
apply to the testimony of <insert names of testifying coparticipants>.]" It
171

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did so despite the Bench Note advising that, if other alleged participants in
the crime are testifying, the instruction should not be given or the
bracketed portion should be given, exempting the testimony of those
witnesses. (Judicial Council of Cal., Crim. Jury Instns. (2007-2008) Bench
Notes to CALCRIM No. 373, p. 153.)
b.

Analysis

The People are correct that defendants forfeited their claim when
they failed to object to, or request modification of, CALCRIM No. 373 at
trial. (People v. Moore, supra, 51 Cal.4th at p. 1134; People v. Sully,
supra, 53 Cal.3d at p. 1218.)[fn142] In any event, defendants' claim fails
on the merits.
FN142: For the most part, the cases we and the parties cite
address CALCRIM No. 373's counterpart, CALJIC No.
2.11.5. That instruction provides: "There has been evidence
in this case indicating that a person other than a defendant
was or may have been involved in the crime for which that
defendant is on trial. [¶] There may be many reasons why
that person is not here on trial. Therefore, do not speculate
or guess as to why the other person is not being prosecuted
in this trial or whether [he] [she] has been or will be
prosecuted. Your [sole] duty is to decide whether the People
have proved the guilt of [each] [the] defendant on trial."
(Italics added.) We reject defendants' assertion that
CALCRIM No. 373 is significantly (and improperly) more
restrictive than CALJIC No. 2.11.5 because the latter
includes the italicized language. Accordingly, cases dealing
with CALJIC No. 2.11.5 are on point.
"'"[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction." [Citation.]' [Citation.]" (People
v. Smithey (1999) 20 Cal.4th 936, 987.) Accordingly, "[i]n assessing a
claim of instructional error or ambiguity, we consider the instructions as a
whole to determine whether there is a reasonable likelihood the jury was
misled. [Citations.]" (People v. Tate (2010) 49 Cal.4th 635, 696; see
Estelle v. McGuire, supra, 502 U.S. at p. 72.)[fn143]
FN143: Some cases state that "'[i]n determining whether an
instruction interferes with the jury's consideration of evidence
presented at trial, we must determine "what a reasonable
juror could have understood the charge as meaning."
[Citation.]'" (People v. Cox, supra, 53 Cal.3d at p. 667, italics
added; see also, e.g., People v. Garrison (1989) 47 Cal.3d
746, 780; People v. Fonseca (2003) 105 Cal.App.4th 543,
549.) Garrison, which was cited by People v. Cox, supra, 53
Cal.3d at p. 667 (which in turn was cited at p. 549 of
Fonseca), cited California v. Brown, supra, 479 U.S. 538, as
authority for the standard. In Boyde v. California (1990) 494
U.S. 370, however, Brown was one of the cases cited by the
United States Supreme Court as providing differing and
hence a "less than clear" "legal standard for reviewing jury
instructions claimed to restrict impermissibly a jury's
consideration of relevant evidence ...." (Boyde, at pp. 378,
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379.) Finding it important "to settle upon a single
formulation" to be employed in deciding this kind of question,
the high court determined that "the proper inquiry ... is
whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence." (Id. at
pp. 379, 380.) Although later United States Supreme Court
cases appeared to again endorse the "reasonable juror"
standard, Boyde's "reasonable likelihood" standard was
reaffirmed in Estelle v. McGuire, supra, 502 U.S. at pages
72-73, footnote 4.
The California Supreme Court has consistently held that an
unmodified version of CALJIC No. 2.11.5 (and, by parity of reasoning,
CALCRIM No. 373) should not be given when, as here, a nonprosecuted
participant testifies, because the jury is entitled to consider the lack of
prosecution, and incentive the witness had to lie, in assessing the
witness's credibility. (E.g., People v. Williams (1997) 16 Cal.4th 153, 226227; People v. Hardy (1992) 2 Cal.4th 86, 189-190; People v. Cox, supra,
53 Cal.3d at p. 667 & fn. 13; People v. Carrera (1989) 49 Cal.3d 291, 312
& fn. 10; People v. Sheldon, supra, 48 Cal.3d at p. 946.) That court has
been less consistent as to whether, when given together with instructions
that assist jurors in assessing witness credibility, such as were given in the
present case, the giving of the unmodified instruction does not constitute
error (e.g., People v. Moore, supra, 51 Cal.4th at pp. 1133-1134; People v.
Williams, supra, 49 Cal.4th at pp. 457-458; People v. Crew (2003) 31
Cal.4th 822, 845; People v. Brown (2003) 31 Cal.4th 518, 560-561;
People v. Lawley, supra, 27 Cal.4th at pp. 162-163; People v. Price,
supra, 1 Cal.4th at p. 446), or constitutes error that was harmless whether
assessed under Watson or Chapman (e.g., People v. Cornwell, supra, 37
Cal.4th at p. 88; People v. Williams, supra, 16 Cal.4th at p. 227; People v.
Hardy, supra, 2 Cal.4th at pp. 190-191; People v. Sully, supra, 53 Cal.3d
at pp. 1218-1219; People v. Carrera, supra, 49 Cal.3d at p. 313; People v.
Garrison, supra, 47 Cal.3d at p. 780).
In the present case, the trial court should have expressly excluded
Agustin and Jackson from CALCRIM No. 373's ambit. In light of the other
instructions given on witness credibility and accomplice testimony,
however, we find no reasonable likelihood jurors were misled in terms of
their consideration of the testimony of those witnesses. The instructions,
considered as a whole (which the jury was admonished to do), correctly
stated the law.[fn144]
FN144: Were we to find error, we would conclude it was
harmless under any standard.
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 447-478.

24
2.

Legal Standard

25
Petitioner contends that this instruction caused prejudice as it prevented the jury
26
from properly incorporating the fact that Agustin and Jackson had immunity agreements
27
in determining their respective credibility. Petitioner argues that Agustin and Jackson
28
173

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were key witnesses and it hindered his defense for the jury not to take into account the

2

impact of the immunity agreement and whether the witnesses provided more favorable

3

testimony to the prosecution in light of the instruction.

4

If a jury instruction lightens the prosecution's burden of proof to something less

5

than beyond a reasonable doubt by shifting the burden of proof to the defendant, then

6

that instruction violates the Due Process Clause of the Fourteenth Amendment.

7

Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979) (overruled in part on other grounds

8

by Boyde v. California, 494 U.S. 370, 380 (1990)). For an ambiguous instruction to

9

warrant grant of a petition for habeas corpus, there must be a "reasonable likelihood" the

10

jury applied the instruction in a way which would violate the Constitution. Estelle v.

11

McGuire, 502 U.S. 62, 72 (1991) (citing Boyde, 494 U.S. at 380). The instruction must be

12

construed in the context of all other instructions and the entire trial record rather than in

13

isolation. Id. (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

14

The appropriate inquiry "is whether the ailing instruction . . . so infected the entire

15

trial that the resulting conviction violates due process." Middleton v. McNeil, 541 U.S.

16

433, 437 (2004) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)).

17

"If the charge as a whole is ambiguous, the question is whether there is a

18

'reasonable likelihood that the jury has applied the challenged instruction in a way' that

19

violates the Constitution." Dixon v. Williams, 750 F.3d 1027, 1033 (9th Cir. 2014).

20

Petitioner is entitled to relief on his jury instruction claims only if he can show prejudice.

21

Id. at 1034. Prejudice is shown for purposes of habeas relief if the trial error had a

22

"substantial and injurious effect or influence in determining the jury's verdict." Brecht,

23

507 U.S. at 637. Mere speculation that the defendant was prejudiced by trial error is

24

insufficient; the reviewing court "must find that the defendant was actually prejudiced by

25

the error." Calderon v. Coleman, 525 U.S. 141, 146 (1998) United States Supreme Court

26

habeas precedent "places an 'especially heavy' burden on a defendant who . . . seeks to

27

show constitutional error from a jury instruction that quotes a state statute." Waddington

28

v. Sarausad, 555 U.S. 179, 190 (2009) (quoting Henderson v. Kibbe, 431 U.S. 145, 155
174

1

(1977)).

2

3.

Analysis

3

Respondent notes that Petitioner failed to object to the jury instructions at trial and

4

is procedurally defaulted from bringing the claim. However, Respondent acknowledges

5

that Petitioner raised a claim that his counsel was ineffective for not presenting the claim

6

at trial. As Respondent only raised, but did not brief, the merits of the argument that the

7

claim was procedurally defaulted, because the Court must review the merits of the claim

8

in addressing either procedural default or Petitioner’s claim of ineffective assistance of

9

counsel, and given concerns of judicial efficiency, the Court will address the merits of the

10

claim.

11

On appeal, the state court found that it was not appropriate to have provided the

12

instruction without excluding Agustin and Jackson from the instruction. The state court

13

found that jury was entitled to consider the lack of prosecution of Agustin and Jackson

14

and its effect on their respective incentive to testify in the prosecution’s favor when

15

assessing their credibility. Despite the failure to include the last sentence of the

16

instruction of CALCRIM 373 omitting Agustin and Jackson from the instruction, the state

17

court found that the instruction as a whole ensured that the jury correctly weighed all the

18

relevant evidence in determining the credibility of Agustin and Jackson’s testimony.

19

The state court gave several other relevant instructions to the jury to evaluate

20

Agustin and Jackson’s testimony. The jury was provided CALCRIM No. 334, which

21

expressly admonished the jury to view Agustin’s testimony with caution if it found her to

22

be an accomplice. (Clerk’s Tr. at 2433-34.) If so, then the jury was instructed to

23

corroborate her testimony with supporting evidence. Id. The jury was likewise provided

24

the instruction regarding accomplice testimony as to Jackson. (Clerk’s Tr. at 2435-36.)

25

The jury was also instructed with CALCRIM No. 336, as to Jackson, advising them that

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Jackson’s testimony must be viewed with caution as he was an in-custody informant.

27

(Clerk’s Tr. 2437.) The jury was instructed pursuant to CALCRIM No. 301 that it may not

28

find Petitioner or his co-defendants guilty of counts 9 and 11 solely based upon
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testimony from Agustin or Jackson, and that the jury “should carefully review all the

2

evidence” before finding any other facts solely based upon a single witness’s testimony.

3

(Id. at 2425.) Finally, the jury was instructed pursuant to CALCRIM No. 226 to consider

4

any offer of immunity or leniency upon the credibility or believability of a given witness.

5

(Clerk’s Tr. at 2420-2421.)

6

In addition to the other jury instructions, during closing arguments counsel for

7

Petitioner and co-defendants presented argument that Agustin and Jackson’s testimony

8

was not credible based on their immunity agreement. (See e.g., Rep. Tr. at 11122-

9

11126, 11136 [describing the “immunity package” and “money and benefits” received by

10

Agustin and Jackson], 11200-11202 [describing Jackson as a parolee “going to do

11

whatever he could do” to avoid returning to prison]; 11245-11250 [describing Agustin

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and Jackson as accomplices who were motivated to lie to avoid prosecution]).

13

Based on the totality of the jury instructions, there is no reasonable likelihood the

14

jury would have improperly reviewed the credibility or believability of Agustin’s or

15

Jackson’s testimony based on the language of CALCRIM 373 as presented to the jury.

16

Nothing about the jury instructions would have confused the jury regarding the

17

prosecution’s burden to prove that Petitioner committed the charged crimes. Thus, this

18

Court may not overturn the state court's determination on habeas review because there

19

is no "reasonable likelihood" that the jury was misled by the CALCRIM 373 instruction in

20

a way that shifted the prosecution's burden of proof. Any error resulting from CALCRIM

21

No. 373’s failure to exclude Agustin and Jackson did not have a substantial and injurious

22

effect or influence on the jury’s verdict. Fry, 551 U.S. at 119-20; Brecht, 507 U.S. 637.

23

Accordingly, the Court finds that the trial court did not commit instructional error such

24

that resulted in the violation of Petitioner's due process. See Estelle, 502 U.S. at 72. The

25

Court of Appeal's rejection of Petitioner's claim was neither contrary to, nor an

26

unreasonable application of, clearly established federal law. Habeas relief is not

27

warranted as to this claim.

28

Further, Petitioner claims that counsel was ineffective for failing to move to correct
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the instruction. Regardless whether counsel’s conduct was reasonable, Petitioner has

2

not shown that he was prejudiced by counsel’s conduct. As explained above, in light of

3

the other jury instructions and the argument presented by Petitioner and co-defendants

4

at trial, there is not a reasonable probability that, but for counsel's unprofessional errors,

5

the results of the proceeding would have been different. Strickland v. Washington, 466

6

U.S. 668, 686 (1984).

7

j.

Claim Ten – Jury Instructions as to Gang Evidence

8

Petitioner claims that the trial court violated his federal Due Process rights and a

9

right to a fair trial by improperly instructing the jury regarding irrelevant, unreliable,

10

untested and inflammatory gang expert testimony that was admitted at trial. (Pet. at 42-

11

49.)

12

Confrontation Clause by allowing the gang expert to present hearsay testimony.

Petitioner also contends that the instructions violated his rights under the

13

1.

State Court Decision

14

Petitioner presented this claim by way of direct appeal to the California Court of

15

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

16

appellate court and summarily denied in subsequent petition for review by the California

17

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

18

opinion is summary in nature, this Court "looks through" that decision and presumes it

19

adopted the reasoning of the California Court of Appeal, the last state court to have

20

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

21

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

22

4.

23

Dixon contends the instructions given on gang evidence and
enhancements were erroneous in several respects. First, he says the
limiting instruction for "'evidence of gang activity'" allowed jurors to
consider all such gang evidence — including the gang experts' testimony
and the charged gang crimes — in deciding whether defendants acted
with the intent, purpose, and knowledge required to prove the gangrelated crimes and not just the gang enhancements, and that the trial court
never even informed jurors they could not consider other crimes or gang
activities that were not proven at least by a preponderance of the
evidence. Second, he says another limiting instruction allowed jurors
substantively to consider evidence — including gang expert testimonial

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Gang Evidence and Enhancements

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hearsay and anecdotes — that is supposed to be limited to the nontruth
basis of the opinion by telling jurors they had to determine whether the
information on which the expert relied was true and accurate. Third, Dixon
says yet another instruction allowed jurors to consider a charged crime, of
which they found a defendant guilty, to decide the issues of the gang's
primary activities and pattern of gang activity, and presumably knowledge
of gang activity for purposes of the gang special circumstance. Dixon says
the errors deprived him of his right to a fair trial by reducing the
prosecution's burden of proof and creating a strong risk of conviction
based on irrelevant and inflammatory evidence and criminal disposition,
and deprived him of his confrontation rights by permitting consideration of
gang expert testimonial hearsay. Johnson and Lee join. The People say
that, when the challenged instructions are considered in context, there is
no reasonable likelihood the jury misunderstood any of them in the
manner alleged.
a.

Background

The testimony of the various gang experts is set out at length, ante.
Some limiting instructions were given to portions of their testimony, as well
as other gang-related evidence, at the time the testimony was presented
to the jury. For instance, when Sherman was testifying concerning Dixon's
prior offenses, the trial court admonished the jury that the evidence was
received only to show a predicate offense or pattern of criminal activity.
The prosecutor made it clear that evidence of offenses committed by
nondefendants was for the same limited purpose. In addition, the jury was
informed that Sherman's testimony concerning defendants' criminal
records was being received for the limited purpose of Sherman's opinion
whether the particular defendant was a gang member at the time the
crime was committed. When Dixon's attorney cross-examined Sherman
about the circumstances of the offense that gave rise to Dixon's
manslaughter conviction, the prosecutor pointed out that the evidence on
which Sherman was relying was hearsay, and came in as a basis for his
opinion and not for the truth of the matter.
During the jury instruction conference, the court and counsel had
an extensive discussion about CALCRIM No. 1400 (Active Participation in
Criminal Street Gang (Pen. Code, § 186.22(a))). The prosecutor and
Johnson's attorney expressly agreed with the notion that if the jury found a
defendant guilty of a crime in this case, that crime could be considered in
deciding whether one of the group's primary activities was commission of
that crime and whether a pattern of criminal gang activity had been
proved. Neither counsel for Lee nor counsel for Dixon objected. When
CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity) was
discussed, the defense did not object to the court's proposed wording of
the instruction. During a later discussion of the gang instructions, there
were no objections to CALCRIM Nos. 1401 (Felony or Misdemeanor
Committed for Benefit of Criminal Street Gang (Pen. Code, § 186.22(b)(1)
(Felony) & § 186.22(d) (Felony or Misdemeanor))) or 1403.
Based on Sherman's testimony concerning the predicate offenses,
the prosecution revised CALCRIM No. 1400, and the court and counsel
had a further discussion about the instruction. Although specifically asked
by the court, no defense attorney voiced any problem with the proposed
wording of the instruction, or the modifications that were made later.

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Insofar as is relevant to this issue, the trial court ultimately gave the
following instructions:
• CALCRIM No. 220: "Whenever I tell you the People must
prove something, I mean they must prove it beyond a
reasonable doubt unless I specifically tell you otherwise."
• CALCRIM No. 303: "During the trial certain evidence was
admitted for a limited purpose. You may consider that
evidence only for that purpose and for no other."
• CALCRIM No. 332: "In evaluating the believability of an
expert witness, follow the instructions about the believability
of witnesses generally. And, in addition, consider the
expert's knowledge, skill, experience, training, and
education, the reasons the expert gave for any opinion, and
the facts or information on which the expert relied in
reaching that opinion. [¶] You must decide whether
information on which the expert relied was true and
accurate. You may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the
evidence."
• CALCRIM No. 360: "Certain medical and law enforcement
personnel testified that in reaching his or her particular
conclusions as an expert witness that he or she considered
statements made by various individuals. You may consider
those statements only to evaluate the expert's opinion. Do
not consider those statements as proof that the information
contained in the statements is true."
• CALCRIM No. 375: "The People presented evidence that
the defendant [Dixon] allegedly committed the offenses of
voluntary manslaughter and/or shooting at an inhabited
dwelling house, both of which are alleged to have occurred
in 2001 that were not charged in this case. You may
consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant, in fact,
committed the uncharged offenses. Proof by a
preponderance of evidence is a different burden of proof
than proof beyond a reasonable doubt. [¶] ... [¶] If you
conclude that said defendant committed the uncharged
offenses, that conclusion is only one factor to consider along
with all of the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of the crimes charged or
that the enhancements or allegations have been proved. The
People must still prove each charge, enhancement, and
allegation beyond a reasonable doubt."
• CALCRIM No. 736: "The defendants are charged with the
special circumstance of committing murder while an active
participant in a criminal street gang, in violation of Penal
Code Section 190.2(a)(22). [¶] To prove that this special
circumstance is true, the People must prove that: [¶] One,
the defendant intentionally killed James Wallace and/or
Vanessa Alcala and/or Baby Boy Alcala; [¶] Two, at the time
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of the killing the defendant was an active participant in a
criminal street gang; [¶] Third, the defendant knew that the
members of the gang engaged in or have engaged in a
pattern of criminal gang activity; [¶] And, fourth, the murder
was carried out to further the activities of the criminal street
gang. [¶] Active participation means involvement with a
criminal street gang in a way that is more than passive or in
name only. [¶] The People do not have to prove that the
defendant devoted all or a substantial part of his time or
efforts to the gang or that he was an actual member of the
gang. [¶] A criminal street gang will be defined in another
instruction to which you should refer."
• CALCRIM No. 1400: "The defendant is charged in Count 9
with conspiracy to participate in a criminal street gang and in
Count 11 with participating in a criminal street gang, in
violation of Penal Code Section 186.22(a). [¶] To prove that
the defendant is guilty of this crime as alleged in Count 11
and in order to define the crime which defendants are
charged with conspiring to commit, Count 9, the People must
prove that: [¶] One, the defendant actively participated in a
criminal street gang; [¶] Two, when the defendant
participated in the gang he knew that members of the gang
engaged in or have engaged in a pattern of criminal gang
activity; [¶] And, three, the defendant willfully assisted,
furthered, or promoted felonious criminal conduct by
members of the gang either by: [¶] A, directly and actively
committing a felony offense; [¶] Or, B, aiding and abetting a
felony offense. [¶] ... [¶] A criminal street gang is any
ongoing organization, association, or group of three or more
persons, whether formal or informal: [¶] One, that has a
common name or common identifying sign or symbol; [¶]
Two, that has as one or more of its primary activities the
commission of the sale and possession for sale of narcotics,
... and/or possession of concealed and loaded firearms,
and/or threats, intimidation of witnesses and victims, ...
and/or shootings and/or murders; [¶] And, three, whose
members, whether acting alone or together, engage in or
have engaged in a pattern of criminal gang activity. [¶] ... [¶]
A pattern of criminal gang activity as used here means: [¶]
One, the commission of or attempted commission of or
conspiracy to commit or any conviction of any combination of
two or more of the following crimes: Shooting at a residence,
voluntary manslaughter, attempted murder by gang member,
possession of an assault rifle, and/or possession of cocaine
for sale .... [¶] ... [¶] If you find the defendant guilty of a crime
in this case, you may consider that crime in deciding whether
one of the group's primary activities was commission of that
crime and whether a pattern of criminal gang activity has
been proved. [¶] ... [¶] Felonious criminal conduct means
committing or attempting to commit any of the following
crimes: Murder, possession of a firearm by a felon as to
defendant Joseph Dixon only, shooting at an occupied
vehicle, robbery, sales of illegal narcotics, assault with a
firearm, and/or conspiracy, other than conspiracy to commit
a violation of Penal Code Section 186.22(a)."
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• CALCRIM No. 1401: "If you find a defendant guilty of the
crimes charged in Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10, ...
you must then decide whether for each crime the People
have proved the additional allegation that the defendant
committed that crime for the benefit of, at the direction of, or
in association with a criminal street gang.... [¶] To prove this
allegation the People must prove that: [¶] One, the defendant
committed or attempted to commit the crime for the benefit
of, at the direction of, or in association with a criminal street
gang; [¶] And, two, the defendant intended to assist, ...
further, or promote criminal conduct by gang members. [¶] A
criminal street gang is defined in another instruction to which
you should refer."

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• CALCRIM No. 1403: "You may consider evidence of gang
activity, ... only for the limited purpose of deciding whether
the defendant acted with the intent, purpose, and knowledge
that are required to prove the gang-related crimes or
enhancements and special circumstance allegations
charged. You may also consider this evidence when you
evaluate the credibility or believability of a witness and when
you consider the facts and information relied on by an expert
witness in reaching his or her opinion. You may not consider
this evidence for any other purpose. You may not conclude
from this evidence that a defendant is a person of bad
character or that he has a disposition to commit crime."

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b.

Analysis

"[A] defendant who believes an instruction requires clarification or
modification must request it. [Citation.]" (People v. McKinnon, supra, 52
Cal.4th at p. 670; cf. People v. Hernandez (2004) 33 Cal.4th 1040, 10511052 [trial court has no duty to give limiting instruction on gang evidence
on own motion].) Defendants made no such request here, despite ample
opportunity to do so. Accordingly, most, if not all, of their claims have been
forfeited. Nevertheless, we address them on the merits in light of
defendants' alternative claims of ineffective assistance of counsel.

27

We turn first to CALCRIM No. 1403. This instruction — which, as
written, gives the option of allowing consideration of evidence of gang
activity in deciding whether the defendant acted with the intent, purpose,
and knowledge that are required to prove the gang-related crimes,
enhancements, and special circumstance allegations charged[fn150] —
has been held to be "neither contrary to law nor misleading." (People v.
Samaniego, supra, 172 Cal.App.4th at p. 1168.) We see no reason, in the
present case, to have limited the instruction to the gang enhancements,
since the evidence showed the charged crimes were all gang related, in
addition to which defendants were charged with active participation in a
criminal street gang.[fn151] As the evidence of gang membership and
activity was clearly relevant with respect to the charged offenses (see
People v. Funes (1994) 23 Cal.App.4th 1506, 1516, 1518-1519), the trial
court appropriately instructed the jury on the purposes for which that
evidence could be considered.

28

FN150: The instruction reads, in part: "You may consider

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evidence of gang activity only for the limited purpose of
deciding whether: [¶] [][The defendant acted with the intent,
purpose, and knowledge that are required to prove the gangrelated (crime[s]/ [and] enhancement[s]/ [and] special
circumstance allegations) charged(;/ .)]."
FN151: The instruction given in People v. Samaniego, supra,
172 Cal.App.4th 1148 did not permit consideration of the
evidence of gang activity with respect to gang-related
crimes, but, unlike here, there was no active participation
charge under section 186.22, subdivision (a). (Samaniego,
at pp. 1153, 1166.)
In light of the abundance of evidence that was admitted for limited
purposes and/or as to fewer than all defendants, the trial court reasonably
chose to remind jurors of limiting instructions given at the time the
evidence was admitted, rather than attempting to include all that
information in an instruction such as CALCRIM No. 1403. We recognize
the complexity involved; as we previously observed, however, "[w]e
assume that the jurors are '"'intelligent persons and capable of
understanding and correlating all jury instructions ... given.'"' [Citation.]"
(People v. Franco, supra, 180 Cal.App.4th at p. 720.) Moreover, "[w]e
credit jurors with intelligence and common sense [citation] and do not
assume that these virtues will abandon them when presented with a
court's instructions. [Citations.]" (People v. Coddington, supra, 23 Cal.4th
at p. 594.) Here, jurors had the attorneys' arguments and instructions to
guide them, and they expressed no confusion with respect to the
purpose(s) for which various evidence permissibly could be used.
Defendants complain, however, that the trial court failed to instruct
jurors that they could not consider other crimes or gang activities that were
not proven by at least a preponderance of the evidence. To the contrary,
jurors were so instructed with respect, specifically, to Dixon's prior crimes.
Beyond that, jurors were instructed that if the People had the burden of
proving something, this meant they had to prove it beyond a reasonable
doubt unless the court specifically instructed otherwise. Jurors were also
instructed that before they could rely on circumstantial evidence to
conclude a fact necessary to find a defendant guilty had been proved, they
had to be convinced the People had proved each fact essential to that
conclusion beyond a reasonable doubt.
"'"[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction." [Citation.]' [Citation.]" (People
v. Smithey, supra, 20 Cal.4th at p. 987.) Jurors were admonished to
consider the instructions together, and we find no reasonable likelihood
they were misled by, or misapplied, the instructions as defendants now
claim. (See People v. Tate, supra, 49 Cal.4th at p. 696.)
Nor did the instructions improperly permit substantive use of
testimonial hearsay.[fn152] Under Gardeley, supra, 14 Cal.4th 605 at
pages 618-619, the gang experts properly related in detail the hearsay on
which they relied. (See People v. Valdez, supra, 58 Cal.App.4th at pp.
510-511.) "Most often, hearsay problems will be cured by an instruction
that matters admitted through an expert go only to the basis of his opinion
and should not be considered for their truth. [Citation.]" (People v. Montiel
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(1993) 5 Cal.4th 877, 919.) CALCRIM No. 360 is adequate for this
purpose and does not conflict with CALCRIM No. 332. "[J]uries are
properly instructed to assess critically the disclosed factual basis of an
expert opinion." (People v. Felix (2008) 160 Cal.App.4th 849, 860.)
FN152: Defendants acknowledge that the court gave
CALCRIM No. 360, but say it only applied to "statements"
made to an expert and not to documents on which the expert
relied. Defendants fail to identify any documents that did not
consist of written statements.’
Several appellate opinions have held that Crawford does not apply
to hearsay forming the basis for an expert's opinion, reasoning variously
that hearsay in support of expert opinion is not the sort of testimonial
hearsay the use of which Crawford condemned (People v. Ramirez (2007)
153 Cal.App.4th 1422, 1427) or that hearsay relied on by experts in
formulating their opinions is not testimonial because it is not offered for the
truth of the facts stated (People v. Cooper (2007) 148 Cal.App.4th 731,
747; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210) and the
expert is subject to cross-examination concerning his or her opinions
(People v. Sisneros (2009) 174 Cal.App.4th 142, 154). In People v. Hill,
supra, 191 Cal.App.4th 1104, by contrast, the court determined that
"where basis evidence consists of an out-of-court statement, the jury will
often be required to determine or assume the truth of the statement in
order to utilize it to evaluate the expert's opinion." (Id. at p. 1131, fn.
omitted.) Nevertheless, the court found itself bound by Gardeley and
similar California Supreme Court precedent, and so concluded the trial
court in the case before it properly determined the challenged basis
evidence did not violate the hearsay rule or confrontation clause, since it
was not offered for its truth but only to evaluate the expert's opinions. (Hill,
supra, at p. 1131.) The court further found that most of the hearsay relied
upon by the gang expert in its case would not be considered "testimonial"
under Crawford. (Hill, at pp. 1135-1136.)
The United States Supreme Court itself has produced fractured
opinions concerning Crawford's application to expert testimony and the
information on which such testimony is based. (See, e.g., Williams v.
Illinois (2012) 567 U.S.
[132 S.Ct. 2221]; Bullcoming v. New Mexico
(2011) 564 U.S.
[131 S.Ct. 2705]; Melendez-Diaz v. Massachusetts
(2009) 557 U.S. 305.) Thus far, the California Supreme Court has
attempted to make sense out of these opinions in cases involving basis
evidence such as autopsy and laboratory analysis reports. (People v.
Rutterschmidt (2012) 55 Cal.4th 650, 655-656, 658-659; People v. Dungo
(2012) 55 Cal.4th 608, 612, 617-618; People v. Lopez (2012) 55 Cal.4th
569, 573, 579-582; see also People v. Geier, supra, 41 Cal.4th at pp. 593594, 596-607.) It has yet to do so, however, with respect to the basis
evidence of a gang expert, whose testimony is usually based, at least in
part, in his or her own experience and investigation.
Until the California Supreme Court says otherwise, Gardeley
remains good law. Not every conversation between a gang member and a
gang expert constitutes "interrogation" or results in "testimonial" evidence
for confrontation clause purposes within the meaning of Crawford and its
progeny. Under neither analysis did the instructions here improperly
permit the substantive use of testimonial hearsay in violation of
defendants' constitutional rights.
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Finally, defendants assert jurors should not have been permitted to
use the charged crimes to infer gang primary activities and pattern of
criminal gang activity with respect to the knowledge/active participation
elements of the gang special circumstance allegations. We find no merit to
this argument. The current, charged offenses may be used both to show a
defendant's involvement in a gang was more than nominal or passive, as
required to show active participation (People v. Castenada (2000) 23
Cal.4th 743, 752-753), and in determining whether the People have
proven a pattern of criminal gang activity (People v. Loeun (1997) 17
Cal.4th 1, 10-11, People v. Bragg (2008) 161 Cal.App.4th 1385, 1401; see
Gardeley, supra, 14 Cal.4th at p. 625). Although these cases do not deal
with the gang special circumstance, we see no reason it should be treated
any differently, and we reject defendants' claim of "bootstrapping the
special circumstance on the charged offenses."
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 478-521.

9
2.

Legal Standards

10
Claims that a jury instruction violated state law are not cognizable on federal
11
habeas review. Estelle v. McGuire, 502 U.S. at 71-72. To obtain federal collateral relief
12
for errors in the jury charge, a petitioner must show that the ailing instruction by itself so
13
infected the entire trial that the resulting conviction violates due process. See Estelle,
14
502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v.
15
DeChristoforo, 416 U.S. 637, 643 (1974) ("'[I]t must be established not merely that the
16
instruction is undesirable, erroneous or even "universally condemned," but that it violated
17
some [constitutional right].'"). The instruction may not be judged in artificial isolation, but
18
must be considered in the context of the instructions as a whole and the trial record. See
19
Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the
20
context of the overall charge to the jury as a component of the entire trial process.
21
Moreover, "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than
22
a misstatement of the law." Henderson, 431 U.S. at 155.
23
In addition, a habeas petitioner is not entitled to relief unless the instructional error
24
"'had substantial and injurious effect or influence in determining the jury's verdict.'"
25
Brecht, 507 U.S. at 637. In other words, state prisoners seeking federal habeas relief
26
may obtain plenary review of constitutional claims of trial error, but are not entitled to
27
habeas relief unless the error resulted in "actual prejudice." Id.; see Calderon v.
28
184

1

Coleman, 525 U.S. 141, 146-47 (1998).

2

3.

Analysis

3

Respondent notes that Petitioner failed to object to the jury instructions at trial and

4

is procedurally defaulted from bringing the claim. However, Respondent acknowledges

5

that Petitioner raised a claim that his counsel was ineffective for not presenting the claim

6

at trial. As Respondent only raised, but did not brief, the merits of the argument that the

7

claim was procedurally defaulted, and since the Court must review the merits of the

8

claim in addressing either procedural default or Petitioner’s claim of ineffective

9

assistance of counsel and consider judicial efficiency, the Court will address the merits of

10

the claims.

11

Petitioner presents various arguments in his petition that the instructions relating

12

to gang evidence and the charged gang enhancements were prejudicial for a variety of

13

reasons. The primary instruction regarding limitations on the use of gang expert

14

testimony was CALCRIM No. 1403. (Clerk’s Tr. at 2502.) The instruction read, “You may

15

consider evidence of gang activity only for the limited purpose of deciding whether the

16

defendant acted with the intent, purpose, and knowledge that are required to prove the

17

gang-related crimes or enhancements and special circumstance allegations charged.”

18

The only other permissible purpose for the evidence was to determine the credibility of

19

the expert witness in reaching his opinion. (Id.) The instruction specifically warned jurors

20

not to use the evidence to determine that Petitioner “is a person of bad character or that

21

he has a disposition to commit crime." (Id.) The state court reasoned that the instruction

22

had been found to be "neither contrary to law nor misleading," and that there was no

23

need to limit the instruction to gang enhancements since the evidence indicated that all

24

the crimes were gang related. Based on the relevancy of gang membership and activity,

25

the state court found that the trial court properly instructed the jury on the purposes for

26

which that evidence could be considered.

27

The trial court also found that the instructions, as given, required the jury to

28

consider Petitioner’s prior crimes only if they were proven by at least a preponderance of
185

1

the evidence, and that the burden of proof as to all other issues was that of beyond a

2

reasonable doubt. Based on the instructions as a whole, the court concluded that there

3

was not a reasonable likelihood that the jurors were misled or misapplied the instructions

4

provided by the trial court.

5

Reviewing the relevant jury instructions provided, including CALCRIM Nos. 220

6

(Clerk’s Tr. at 2415 [Reasonable Doubt]), 303 (Id. at 2427 [Limited Purpose Evidence]),

7

332 (Id. at 2431 [Expert Witness Testimony]); 360 (Id. at 2441 [Statements to an

8

Expert]), 375 (Id. at 2448-49 [Evidence of Uncharged Offense to Prove Identify, Intent,

9

Common Plan, Etc.]), 736 (Id. at 2469 [Special Circumstances: Killing by Street gang

10

Member]), 1400 (Id. at 2482-85 [Active Participation in Criminal Street Gang]), 1401 (Id.

11

at 2499 [Felony Committed For Benefit of Criminal Street Gang]), and 1403 (Id. at 2502

12

[Limited Purpose Evidence of Gang Activity]) there is little possibility that the jury

13

improperly used the gang activity evidence. The jury was properly instructed with regard

14

to the burden of proof required and the limited purposes for which the gang evidence

15

applied. Further, in addition to the instructions, during closing arguments defense

16

counsel reminded jurors to use certain gang evidence for a limited purpose, as instructed

17

by the court. (Rep. Tr. at 11245-46, 11273.)

18

Petitioner contends that the instructions should have been more specific with

19

regard as to what gang evidence should have been admitted for each specific purpose,

20

but provides no further support as to how he was prejudiced by lack of further detail in

21

the instructions. Petitioner also complains that the trial court erred by not providing an

22

instruction such as CALJIC 2.50.2 explaining that the jury should not consider gang

23

evidence unless it was proven by a preponderance of the evidence. However, as

24

described above, the trial court did provide the instruction by way of CALCRIM No. 375

25

which specifically set forth that standard. Upon reviewing the instructions provided, the

26

jury was not improperly instructed as to the application of gang evidence and any

27

alleged error did not have a substantial and injurious effect or influence on the jury’s

28

verdict. Fry, 551 U.S. at 119-20; Brecht, 507 U.S. 637. Accordingly, the Court finds that
186

1

the trial court did not commit instructional error such that resulted in the violation of

2

Petitioner's due process. See Estelle, 502 U.S. at 72. The state court’s decision denying

3

Petitioner’s claim was not "so lacking in justification that there was an error well

4

understood and comprehended in existing law beyond any possibility for fairminded

5

disagreement." Richter, 131 S. Ct. at 786-87.

6

Petitioner also contends that his Sixth Amendment Confrontation Clause rights

7

were violated by hearsay testimony provided by the gang expert. The Sixth Amendment

8

to the United States Constitution grants a criminal defendant the right "to be confronted

9

with the witnesses against him." U.S. Const. amend. VI. "The 'main and essential

10

purpose of confrontation is to secure for the opponent the opportunity of cross-

11

examination.'" Fenenbock v. Director of Corrections for California, 692 F.3d 910 (9th

12

Cir. 2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). The

13

Confrontation Clause applies to the states through the Fourteenth Amendment. Pointer

14

v. Texas, 380 U.S. 400, 406 (1965).

15

In 2004, the United States Supreme Court held that the Confrontation Clause

16

bars the state from introducing into evidence out-of-court statements which are

17

"testimonial" in nature unless the witness is unavailable and the defendant had a prior

18

opportunity to cross-examine the witness, regardless of whether such statements are

19

deemed reliable. Crawford v. Washington, 541 U.S. 36 (2004). The Crawford rule

20

applies only to hearsay statements that are "testimonial" and does not bar the

21

admission of non-testimonial hearsay statements. Id. at 42, 51, 68; see also Whorton v.

22

Bockting, 549 U.S. 406, 420 (2007) ("the Confrontation Clause has no application to" an

23

"out-of-court nontestimonial statement.").

24

Although the Crawford court declined to provide a comprehensive definition of

25

the term "testimonial," it stated that "[s]tatements taken by police officers in the course

26

of interrogations are . . . testimonial under even a narrow standard." Crawford, 541 U.S.

27

at 52. The court also provided the following "formulations" of a "core class" of

28

testimonial statements: (1) "ex parte in-court testimony or its functional equivalent - that
187

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is, material such as affidavits, custodial examinations, prior testimony that the defendant

2

was unable to cross-examine, or similar pretrial statements that declarants would

3

reasonably expect to be used prosecutorially;" (2) "extrajudicial statements . . .

4

contained in formalized testimonial materials, such as affidavits, depositions, prior

5

testimony, or confessions;" and (3) "statements that were made under circumstances

6

which would lead an objective witness reasonably to believe that the statement would

7

be available for use at a later trial." Id. at 51-52. The court in Crawford also pointed out

8

that the Sixth Amendment Confrontation Clause "does not bar the use of testimonial

9

statements for purposes other than establishing the truth of the matter asserted." Id. at

10

59, n.9. However, "state evidence rules do not trump a defendant's constitutional right to

11

confrontation," and a reviewing court "ensures that an out-of-court statement was

12

introduced for a 'legitimate, nonhearsay purpose' before relying on the not-for-its-truth

13

rationale to dismiss the Confrontation Clause's application." (citation omitted). Williams

14

v. Illinois, 132 S.Ct. 2221, 2226 (2012).

15

In rejecting petitioner's Confrontation Clause arguments, the California Court of

16

Appeal specifically based its reasoning on the decisions in People v. Thomas, 130 Cal.

17

App. 4th 1202, 30 Cal. Rptr. 3d 582 (2005), People v. Cooper, 148 Cal.App.4th 731,

18

747 (2007), People v. Ramirez, 153 Cal. App.4th 1422, 64 Cal. Rptr. 3d 96 (2007); and

19

People v. Sisneros, 174 Cal.App.4th 142, 154 (2009).

20

In Thomas, the California Court of Appeal explained that:

21

Crawford does not undermine the established rule that experts can
testify to their opinions on relevant matters, and relate the information and
sources upon which they rely in forming those opinions. This is so
because an expert is subject to cross-examination about his or her
opinions and additionally, the materials on which the expert bases his or
her opinion are not elicited for the truth of their contents; they are
examined to assess the weight of the expert's opinion. Crawford itself
states that the Confrontation Clause "does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted." (Crawford, supra 541 U.S. at p. 59, fn. 9, 124 S. Ct. at p. 1369,
fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414, 105 S. Ct.
2078, 85 L.Ed.2d 425.)

22
23
24
25
26
27

Thomas, 130 Cal. App.4th at 1210. Similarly, in Ramirez, the California Court of Appeal
28
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1

concluded that "hearsay in support of expert opinion is simply not the sort of testimonial

2

hearsay the use of which Crawford condemned." 153 Cal. App.4th at 1427.

3

The United States Supreme Court reiterated that the Confrontation Clause "has

4

no application to out-of-court statements that are not offered to prove the truth of the

5

matter asserted." Williams v. Illinois, 132 S. Ct. 2221, 2228, 183 L. Ed. 2d 89 (2012).

6

Thus, "[u]nder settled evidence law, an expert may express an opinion that is based on

7

facts that the expert assumes, but does not know, to be true." Id. The Court noted that

8

an out-of-court statement is testimonial if it has "the primary purpose of accusing a

9

targeted individual of engaging in criminal conduct" and, usually, it involves a

10

"formalized statement[ ] such as affidavits, depositions, prior testimony, or confessions."

11

Id. at 2242. Numerous federal courts have specifically held since the decision in

12

Crawford that the introduction of otherwise inadmissible evidence in support of a gang

13

expert witness' testimony does not violate the Confrontation Clause. See e.g., United

14

States v. Palacios, 677 F.3d 234, 243-44 (4th Cir. 2012); United States v. Ayala, 601

15

F.3d 256, 275 (4th Cir. 2010); see also Mendez v. Sherman, 2016 U.S. Dist. LEXIS

16

62597 (E.D. Cal. 2016) (listing cases).

17

The record indicates that whatever hearsay evidence was presented to Sherman

18

during trial, he did not testify to the truth of the statements. Rather, any such statements

19

were used by Sherman merely to form the basis for his opinions. In this regard, the jury

20

was specifically instructed that hearsay matters relied on by expert witnesses to form

21

their opinions were not offered for the truth of those matters but were to be considered

22

only in evaluating the basis of the expert's opinions. (Clerk's Tr. at 2441; CALCRIM

23

360.) Further, as an expert, Sherman could properly base his opinion on inadmissible

24

evidence, including hearsay, of a kind that experts in the field regularly consult.1

25

The state courts' conclusion that Sherman's expert testimony did not violate

26
27
28

1

Both California and Federal rules of evidence permit testimony by an expert even where the
expert's opinion is based on inadmissible hearsay evidence, as long as the evidence is of a kind experts in
the field regularly consult. See Cal. Evid. Code § 801; Fed. R. Evid. 703.

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Petitioner's rights under the Confrontation Clause is not contrary to or an unreasonable

2

application of clearly established federal law or an unreasonable determination of the

3

facts in light of the state court record. Accordingly, Petitioner is not entitled to federal

4

habeas relief with respect to this claim.

5

Although not raised by Petitioner, the Court notes that the California Supreme

6

Court recently decided People v. Sanchez, 63 Cal. 4th 665, 204 Cal. Rptr. 3d 102, 374

7

P.3d 320 (2016), in which it held that "case-specific statements" related by a

8

prosecution expert concerning a defendant's gang membership may constitute

9

inadmissible hearsay where the expert presents them as true statements of fact without

10

the requisite independent proof. It determined that such inadmissible statements violate

11

the Confrontation Clause if the hearsay is testimonial, unless there is a showing of

12

unavailability and the defendant had a prior opportunity for cross-examination or

13

forfeited that right. Sanchez, 63 Cal. 4th at 677. It did "not call into question the propriety

14

of an expert's testimony concerning background information regarding his knowledge

15

and expertise and premises generally accepted in the field." Id. at 685.

16

Sanchez does not alter the Court's view that Petitioner is not entitled to federal

17

habeas relief in this case. First, the California Supreme Court's foregoing determination

18

of federal constitutional law does not constitute "clearly established Federal law, as

19

determined by the Supreme Court of the United States" (28 U.S.C. § 2254(d)) and is not

20

binding on this Court. Further, even assuming that Sanchez was binding on this Court,

21

the Court would find that the admission of the testimony of the gang expert was

22

harmless, and that any failure by petitioner's counsel to object to any such testimony did

23

not prejudice Petitioner.

24

Finally, Petitioner’s claim that counsel was ineffective for failing to move to

25

request further instructions limiting gang evidence is without merit. Regardless whether

26

counsel’s conduct was reasonable, Petitioner has not shown that he was prejudiced by

27

counsel’s conduct. As explained above, based on the jury instructions as given, there is

28

not a reasonable probability that, but for counsel's unprofessional errors, the results of
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the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686

2

(1984). Petitioner is not entitled to habeas relief with respect to this claim.

3

k.

Claim Eleven – Jury Instructions as to Accomplice Liability

4

Petitioner claims that the trial court’s improper instructions regarding accomplice

5

liability violated Petitioner’s Due Process rights by lowering the prosecutions burden of

6

proof and his right to a fair trial.

7

1.

State Court Decision

8

Petitioner presented this claim by way of direct appeal to the California Court of

9

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

10

appellate court and summarily denied in subsequent petition for review by the California

11

Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

12

opinion is summary in nature, this Court "looks through" that decision and presumes it

13

adopted the reasoning of the California Court of Appeal, the last state court to have

14

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

15

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

16

2.

17

Dixon contends the accomplice liability instructions were
prejudicially erroneous because (1) they gave jurors no guidance on how
to determine the degree of murder for a nonkiller, and (2) they
inadvertently included overly broad language on the natural-and-probableconsequences doctrine. Johnson and Lee join. The People say
defendants forfeited any claim of error by failing to object to the
instructions, but in any event, the instructions as a whole correctly stated
the law and if error occurred, it was harmless.

18
19
20
21
22
23
24
25
26
27
28

a.

Accomplice Liability

Background

The evidence adduced at trial is set out in the statement of facts,
ante. It suggested that, assuming defendants were the perpetrators of the
charged offenses, one or more acted as an aider and abettor rather than
the actual shooter.
During the jury instruction conference, no one objected to, or
requested any modification of, CALCRIM Nos. 400 (Aiding and Abetting:
General Principles) or 401 (Aiding and Abetting: Intended Crimes). With
respect to CALCRIM Nos. 402 (Natural and Probable Consequences
Doctrine (Target and Non-Target Offenses Charged)) and 403 (Natural
and Probable Consequences (Only Non-Target Offense Charged)),
counsel for Lee argued defendants were charged with everything possible
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3
4
5
6
7
8
9
10
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13
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15
16

and Lee had asked for instructions on lesser offenses, so nothing else
was left. As a result, the People withdrew their request for those
instructions.
In addition to aiding and abetting, the People sought to argue
conspiracy as a theory of liability for the nonconspiracy charges.[fn145]
Over Lee's objection to combining CALCRIM and CALJIC instructions, the
People withdrew their request for CALCRIM No. 417 (Liability for
Coconspirators' Acts) in favor of a modified version of CALJIC No. 6.11
(Conspiracy — Joint Responsibility).
FN145: The prosecutor noted that the natural-and-probableconsequences doctrine provided a third theory of liability, but
clarified the prosecution was not asking for it in this case.
The jury subsequently was instructed that defendants were being
prosecuted for first degree murder under two theories: one, that the
murders were willful, deliberate, and premeditated; and two, that the
murders were committed by lying in wait. Both were explained to the jury,
and premeditation and deliberation were defined. Jurors were also
instructed that the duration of lying in wait had to be substantial enough to
show a state of mind equivalent to deliberation or premeditation. Jurors
were also instructed on transferred intent, to wit, if the defendant intended
to kill one person but by mistake or accident killed another person, the
crime (if any) was the same for the unintended killing as for the intended
killing. With respect to the multiple-murder special circumstance, jurors
were instructed that if they found a defendant was guilty of first degree
murder but was not the actual killer, they had to find he acted with the
intent to kill in order to find the special circumstance true.
On the subject of aiding and abetting, the court instructed, pursuant
to CALCRIM No. 400:

17

"A person may be guilty of a crime in two ways:

18

"One, he or she may have directly committed the crime. I will
call that person the perpetrator.

19
20
21
22
23
24
25
26
27
28

"Two, he or she may have aided and abetted a perpetrator
who directly committed the crime.
"A person is equally guilty of the crime whether he or she
committed it personally or aided and abetted the perpetrator
who committed it. Under some specific circumstances if the
evidence establishes aiding and abetting of one crime, a
person may also be found guilty of other crimes that
occurred during the commission of the first crime." (Italics
added.)
Pursuant to CALCRIM No. 401, jurors were told, in pertinent part:
"To prove that the defendant is guilty of a crime based on
aiding and abetting that crime, the People must prove that:
"One, the perpetrator committed the crime;

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10
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22
23

"Two, the defendant knew that the perpetrator intended to
commit the crime;
"Three, before or during the commission of the crime the
defendant intended to aid and abet the perpetrator in
committing the crime;
"And, fourth, the defendant's words or conduct did, in fact,
aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the
perpetrator's unlawful purpose and he or she specifically
intends to and does, in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator's commission of that
crime."
Jurors were also instructed that conspiracy was a crime and was
charged in count nine, and that when the prosecution had not specifically
charged conspiracy but had introduced evidence of conspiracy to prove
liability for other offenses or to introduce hearsay statements of
coconspirators, the evidence could be considered for that purpose. Jurors
were told that "[a] conspiracy is an agreement between two or more
persons with the specific intent to agree to commit the crime of murder
and/or shooting into an occupied vehicle, and with the further specific
intent to commit those crimes ...." As relevant to defendants' claim of error
on appeal, the court further instructed:
"Whether conspiracy is charged or uncharged, each member
of a criminal conspiracy is liable for each act and bound by
each declaration of every other member of the conspiracy if
that act or declaration is in furtherance of the object of the
conspiracy.
"The act of one conspirator pursuant to or in furtherance of
the common design of the conspiracy is the act of all
conspirators.
"A member of a conspiracy is not only guilty of the particular
crime that to his or her knowledge his or her confederates
agreed to and did commit, but is also liable for the natural
and probable consequences of any crime or act of a coconspirator to further the object of the conspiracy even
though that crime or act was not intended as a part of the
agreed-upon objective and even though he or she was not
present at the time of the commission of that crime or act.

27

"You must determine whether the defendant is guilty as a
member of a conspiracy to commit the originally agreedupon crime or crimes and, if so, whether the crime alleged in
all counts, except for Counts 6 and 10 [both charging Dixon
alone with being an ex-felon in possession of a firearm], was
perpetrated by co-conspirators in furtherance of that
conspiracy and was a natural and probable consequence of
the agreed-upon criminal objective of that conspiracy.

28

"In determining whether a consequence is natural and

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25
26

193

probable, you must apply an objective test based not on
what the defendant actually intended, but on what a person
of reasonable and ordinary prudence would have expected
would be likely to occur. The issue is to be decided in light of
all of the circumstances surrounding the incident.

1
2
3

"A natural consequence is one which is within the normal
range of outcomes that may be reasonably expected to
occur if nothing unusual has intervened.

4
5

"Probable means likely to happen."

6
7
8
9
10
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15
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28

The jury retired to deliberate on the afternoon of March 17, 2009.
On the morning of March 19, 2009, jurors sent out a note, with the time
marked as 10:53 a.m., requesting "reading of 1st and 2nd degree murder
& interpretation of the law." Over counsel for Lee's objection to doing
anything other than directing the jury to CALCRIM Nos. 520 (First or
Second Degree Murder With Malice Aforethought (Pen. Code, § 187)) and
521 (First Degree Murder (Pen. Code, § 189)), the court explained to the
jury that it could not comment on the evidence, then reread those two
instructions and invited jurors to write an additional note if they desired
further assistance. At 3:56 that afternoon, the jury sent out a note stating it
had reached a verdict.
b.

Analysis

Defendants did not object to, or request modification or clarification
of, the instructions they now challenge. Generally, "[a] party may not
complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language. [Citation.]" (People v. Lang
(1989) 49 Cal.3d 991, 1024.) At least two courts have held that a
challenge to the "equally guilty" language of CALCRIM No. 400 is forfeited
by failure to request clarifying language. (People v. Lopez (2011) 198
Cal.App.4th 1106, 1118-1119; People v. Samaniego, supra, 172
Cal.App.4th at p. 1163.) We find it appropriate to discuss defendants'
claims on the merits, however, as defendants say the instructions are not
correct in law and so implicate various constitutional rights. (See People v.
Smithey, supra, 20 Cal.4th at pp. 976-977, fn. 7; People v. Flood (1998)
18 Cal.4th 470, 482, fn. 7.)
We turn first to the "equally guilty" language of CALCRIM No. 400.
A direct perpetrator and an aider and abettor are equally guilty of a crime
in the sense that an aider and abettor does not escape treatment as a
principal merely because he or she is not the actual perpetrator. Thus,
section 31 provides in part: "All persons concerned in the commission of a
crime, ... whether they directly commit the act constituting the offense, or
aid and abet in its commission, or, not being present, have advised and
encouraged its commission, ... are principals in any crime so committed."
The problem is, the "equally guilty" language of the instruction can
be read as telling jurors that the direct perpetrator and aider and abettor
must be found guilty, if at all, of the same crime(s) and degree(s) thereof.
So, for example, if defendants' jury found Johnson guilty, as the shooter,
of first degree murder in the killing of Vanessa Alcala, the jury would have
to find Dixon and Lee also guilty of first degree murder once jurors
194

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determined they were involved. This is not the law. The California
Supreme Court has held that, depending on the circumstances, an aider
and abettor can be convicted of a crime greater than the offense for which
the actual perpetrator is liable. (People v. McCoy (2001) 25 Cal.4th 1111,
1118-1119, 1122.) Several appellate courts have held that under the same
reasoning, an aider and abettor can be convicted of a crime lesser than
the offense for which the actual perpetrator is liable. (People v. Lopez,
supra, 198 Cal.App.4th at p. 1118; People v. Nero (2010) 181 Cal.App.4th
504, 513-518; People v. Samaniego, supra, 172 Cal.App.4th at pp. 11631164.) As a result, CALCRIM No. 400, as given in defendants' case, was
ambiguous, and potentially misleading, on this point.[fn146]
FN146: The instruction has since been modified to remove
the "equally guilty" language. (Judicial Council of Cal., Crim.
Jury Instns. (2011) p. 167.)
Nevertheless, we find no prejudice from the error. As stated in
People v. Samaniego, supra, 172 Cal.App.4th at page 1165, "An
instruction that omits or misdescribes an element of a charged offense
violates the right to jury trial guaranteed by our federal Constitution, and
the effect of this violation is measured against the harmless error test of
Chapman[, supra,] 386 U.S. 18, 24. [Citation.] Under that test, an
appellate court may find the error harmless only if it determines beyond a
reasonable doubt that the jury verdict would have been the same absent
the error. [Citation.] CALCRIM No. 400 misdescribes the prosecution's
burden in proving the aider and abettor's guilt of first degree murder by
eliminating its need to prove the aider and abettor's (1) intent, (2)
willfulness, (3) premeditation and (4) deliberation, the mental states for
murder."
The Samaniego court found the error harmless beyond a
reasonable doubt because the jury necessarily resolved the issues against
the defendant under other instructions. (People v. Samaniego, supra, 172
Cal.App.4th at p. 1165.) Here, jurors necessarily found defendants acted
willfully with intent to kill; they were instructed, pursuant to CALCRIM No.
521, that a defendant acted willfully if he intended to kill; and, pursuant to
CALCRIM No. 702, that, in order to find a multiple-murder special
circumstance as to a nonkiller, they had to find the defendant acted with
the intent to kill. Because jurors found all multiple-murder special
circumstances true as to all defendants, jurors necessarily determined
each defendant had the specific intent to kill. (See Samaniego, at p.
1165.)
Jurors also necessarily found defendants acted deliberately and
with premeditation. CALCRIM No. 401 required jurors to find the
perpetrator committed the crime, the defendant knew the perpetrator
intended to commit the crime, the defendant intended to aid and abet the
perpetrator in committing the crime either before or during the commission
of the crime, and the defendant's words or conduct did in fact aid and abet
the perpetrator's commission of the crime. The instruction further
explained that "[s]omeone aids and abets a crime if he or she knows of the
perpetrator's unlawful purpose and he or she specifically intends to and
does, in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator's commission of that crime." We agree with the court in People
v. Samaniego, supra, 172 Cal.App.4th at page 1166, which said: "It would
be virtually impossible for a person to know of another's intent to murder
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and decide to aid in accomplishing the crime without at least a brief period
of deliberation and premeditation, which is all that is required. [Citation.]"
That the error was found prejudicial in People v. Nero, supra, 181
Cal.App.4th at pages 518-520, does not assist defendants. In that case,
the jury expressly asked if an aider and abettor could be found guilty of a
lesser offense. Although the correct answer was "yes," the trial court twice
reread CALJIC No. 3.00, including the statement, "'Each principal,
regardless of the extent or manner of the participation, is equally guilty.'"
(Nero, at p. 512, italics omitted.) By contrast, CALCRIM No. 400, as given
in the present case, uses more ambiguous language and, in any event,
jurors expressed no confusion on this point. (See People v. Lopez, supra,
198 Cal.App.4th at p. 1120, fn. 6.)[fn147]
FN147: The question asked by the jury about first and
second degree murder is too general for us to assume jurors
were confused by anything related to aider-and-abettor
liability. This is especially true since, insofar as the record
shows, the rereading of CALCRIM Nos. 520 and 521
remedied whatever confusion or problem existed. Neither
instruction has anything to do with aiding and abetting, and
the jury did not ask for further, or more specific, clarification
or assistance.
Defendants next complain the instructions failed to tell jurors the
nonkiller must personally premeditate or the killer's premeditated murder
must be natural and foreseeable to the nonkiller.[fn148]
FN148: In People v. Favor (2012) 54 Cal.4th 868, 871-880,
the California Supreme Court rejected a virtually identical
argument with respect to attempted premeditated murder.
Favor is not necessarily dispositive of defendants' claim
because, as the high court recognized, there are different
degrees of murder, whereas attempted murder is not divided
into degrees, and attempted premeditated murder and
attempted unpremeditated murder are not separate
offenses. (Id. at pp. 876-877.)
The People did not proceed on a natural-and-probableconsequences theory of liability insofar as aiding and abetting was
concerned. "To be guilty of a crime as an aider and abettor, a person must
'aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words
or gestures.' [Citations.] In addition, except under the natural-andprobable-consequences doctrine [citations], ... the person must give such
aid or encouragement 'with knowledge of the criminal purpose of the
[direct] perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of,' the crime in question.
[Citations.] When the crime at issue requires a specific intent, in order to
be guilty as an aider and abettor the person 'must share the specific intent
of the [direct] perpetrator,'[fn149] that is to say, the person must 'know[]
the full extent of the [direct] perpetrator's criminal purpose and [must]
give[] aid or encouragement with the intent or purpose of facilitating the
[direct] perpetrator's commission of the crime.' [Citation.]" (People v. Lee
(2003) 31 Cal.4th 613, 623-624; see People v. Beeman (1984) 35 Cal.3d
547, 560 (Beeman).) In short, "proof of aider and abettor liability requires
proof in three distinct areas: (a) the direct perpetrator's actus reus — a
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crime committed by the direct perpetrator, (b) the aider and abettor's mens
rea — knowledge of the direct perpetrator's unlawful intent and an intent to
assist in achieving those unlawful ends, and (c) the aider and abettor's
actus reus — conduct by the aider and abettor that in fact assists the
achievement of the crime. [Citation.]" (People v. Perez (2005) 35 Cal.4th
1219, 1225.)
FN149: The direct (actual) perpetrator must harbor whatever
mental state is required for each crime charged. (People v.
Mendoza (1998) 18 Cal.4th 1114, 1123.)
We conclude CALCRIM No. 401, especially when considered in
conjunction with CALCRIM No. 521, adequately conveyed the
premeditation requirement.
Cases addressing application of the doctrine vis-à-vis aiding and
abetting are applicable even though the natural-and-probableconsequences doctrine came into play with respect to the conspiracy
theory of liability.
When application of the natural-and-probable-consequences
doctrine is triggered in a conspiracy case, the trier of fact must find, in
addition to the elements of the conspiracy, that the defendant's
coconspirator committed an offense other than the offense that was the
object of the conspiracy, and the offense committed by the coconspirator
was a natural and probable consequence of the target offense. (See
People v. Prettyman (1996) 14 Cal.4th 248, 262.) "The determination
whether a particular criminal act was a natural and probable consequence
of another criminal act ... requires application of an objective rather than
subjective test. [Citations.] This does not mean that the issue is to be
considered in the abstract as a question of law. [Citation.] Rather, the
issue is a factual question to be resolved by the jury in light of all of the
circumstances surrounding the incident. [Citations.] Consequently, the
issue does not turn on the defendant's subjective state of mind, but
depends upon whether, under all of the circumstances presented, a
reasonable person in the defendant's position would have or should have
known that the charged offense was a reasonably foreseeable
consequence of the act [that was the object of the conspiracy]. [Citations.]"
(People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The crime ultimately
committed need not have been specifically planned or agreed upon, nor
need it have been substantially certain to result from commission of the
planned act. (Id. at p. 530.) The defendant need not have actually
foreseen the additional crime; the question is whether, judged objectively,
the additional crime was reasonably foreseeable. (People v. Mendoza,
supra, 18 Cal.4th at p. 1133.)
As previously noted, defendants' jury was told that "[a] conspiracy
is an agreement between two or more persons with the specific intent to
agree to commit the crime of murder and/or shooting into an occupied
vehicle, and with the further specific intents to commit those crimes ...."
"[A] jury's finding of the dual specific intents required for conviction of
conspiracy to murder necessarily establishes that the target offense of
murder was premeditated and deliberated ...." (People v. Cortez (1998) 18
Cal.4th 1223, 1238.) We find it difficult to see how a murder committed as
a result of a conspiracy to shoot into an occupied vehicle could be
anything but premeditated and foreseeable. In any event, the conspiracy
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instructions, coupled with CALCRIM No. 521, were adequate to ensure
jurors found the nonkiller(s) personally premeditated and/or that the
perpetrator's commission of premeditated murder was natural and
foreseeable to the nonkiller(s).
Finally, defendants say the trial court erred by including the final,
optional sentence of CALCRIM No. 400, to wit: "Under some specific
circumstances, if the evidence establishes aiding and abetting of one
crime, a person may also be found guilty of other crimes that occurred
during the commission of the first crime." They say this language failed to
identify and define target and nontarget crimes, and so risked a finding of
guilt based on intent to aid and abet unspecified conduct.
In People v. Prettyman, supra, 14 Cal.4th 248, the trial court
instructed the jury that one who aids and abets is not only guilty of the
crime aided and abetted, but is also liable for the natural and probable
consequences of the commission of such crime. The court directed the
jury to determine whether the defendant was guilty of the crime originally
contemplated, and, if so, whether any other crime charged was a natural
and probable consequence of such originally contemplated crime. (Id. at
pp. 257-258.) The California Supreme Court found that "once the trial
court ... chose to instruct the jury on the 'natural and probable
consequences' rule, it had a duty to issue instructions identifying and
describing each potential target offense supported by the evidence. By
failing to do so, the trial court erred." (Id. at p. 270.) Because "a conviction
may not be based on the jury's generalized belief that the defendant
intended to assist and/or encourage unspecified 'nefarious' conduct," "the
trial court should identify and describe the target or predicate crime that
the defendant may have aided and abetted." (Id. at p. 268, fns. omitted.)
"If the court fails to identify and define these target offenses, we
must then determine whether there is a '"reasonable likelihood" that the
jury misapplied the trial court's instructions on the "natural and probable
consequences" doctrine ....' [Citation.]" (People v. Prieto, supra, 30 Cal.4th
at p. 252; accord, People v. Prettyman, supra, 14 Cal.4th at p. 272.) No
such reasonable likelihood exists here. In the first place, the trial court
never mentioned the natural-and-probable-consequences doctrine in
conjunction with aiding and abetting liability, never identified the specific
circumstances under which a defendant might be found guilty of other
crimes, and never directed the jury to make any sort of findings on the
issue. In the second place, when it explained aiding and abetting and
conspiracy theories of liability to the jury, the prosecutor did not even
discuss, let alone rely on, the natural-and-probable-consequences
doctrine in the context of aiding and abetting. (Compare People v. Lucas
(1997) 55 Cal.App.4th 721, 731-732.) Under the circumstances, the
challenged language neither introduced the concept of natural and
probable consequences nor raised a risk jurors might base a finding of
guilt on intent to aid and abet some unspecified "nefarious" conduct.
"Where, as here, the court gives a legally correct, but irrelevant,
instruction, the error 'is usually harmless, having little or no effect "other
than to add to the bulk of the charge."' [Citation.]" (People v. Lee (1990)
219 Cal.App.3d 829, 841.)
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 478-497.
2.

Legal Standard
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The proper legal standard for this claim was set forth above with regarding to

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Petitioner’s tenth claim for relief raising instructional error issues. See, supra at § III(I)(2).

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3.

Analysis

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Petitioner presents two claims as to why the instructions were misleading and

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might have led to him being incorrectly convicted of a greater degree of murder as a

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non-killer accomplice than he should have. First, Petitioner asserts that the "equally

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guilty" language of CALCRIM No. 400 can be construed as instructing the jurors that the

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direct perpetrator and aider and abettor must be found guilty, if at all, of the same degree

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or level of guilt, regardless of aider and abettor’s mental state. Second, Petitioner claims

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that the next sentence of CALCRIM No. 400 explaining that “if the evidence establishes

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aiding and abetting of one crime, a person may also be found guilty of other crimes that

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occurred during the commission of the first crime” created a risk of the jury finding of guilt

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based on intent to aid and abet unspecified conduct. The Court will address each in turn.

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First, Petitioner claims that the jury instructions, specifically CALCRIM Nos. 400

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and 401, failed to properly instruct the jury to determine whether Petitioner had the same

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specific intent as the perpetrator. In addressing this claim, the California Court of Appeal

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noted that the “equally guilty” language of CALCRIM No. 400 has the potential to create

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confusion in certain cases. People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at

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486-487 (“CALCRIM No. 400, as given in defendants' case, was ambiguous, and

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potentially misleading, on this point.”). The California Supreme Court recently addressed

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this issue in People v. Johnson. 62 Cal.4th 600, 638-640 (2016). Under California law an

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aider and abettor’s criminal liability can sometimes be greater than or less than that of

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the perpetrator. Id. at 638. "Aider and abettor liability for a killing is based on the

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combined acts of all the principals and the aider and abettor's own mental state, which

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floats free from the mental state of the perpetrator." Id. at p. 639. (citing People v. McCoy

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25 Cal.4th 1111 (2001)). After several California courts concluded the "equally guilty"

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language could be misleading, the CALCRIM instruction containing that language was

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revised in 2010 to remove the word "equally" from the "equally guilty" language.
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Johnson, 62 Cal.4th at 639-640.

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However, in Johnson, the California Supreme Court found no error as "there was

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no version of the evidence . . . suggesting that defendant's mental state was less

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culpable than that of the actual killer." Johnson, 62 Cal.4th at 640. Further, the Court

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found that there was nothing in the record suggesting that the jurors believed the

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“equally guilty” language in CALCRIM No. 400 required them to determine defendant's

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criminal liability based on the perpetrator’s mental state, rather than the aider and

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abettor’s own mental state. Id.

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Returning to Petitioner’s case, the Court of Appeal determined the instructions as

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given did not create confusion in this case. The court relied upon the totality of relevant

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instructions given. CALCRIM No. 400 contained a brief explanation of the “general

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principles” of accomplice liability. (Clerk’s Tr. at 2450.) Next, CALCRIM No. 401 advised

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the jury regarding guilt based on aiding and abetting, instructing the jury that a defendant

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may be guilty of aiding a crime committed by the perpetrator if the defendant knew the

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perpetrator intended to commit the crime, intended to aid the perpetrator commit that

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crime, and actually did aid the perpetrator commit that crime. (Id. at 2451.) In addition,

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the trial court instructed the jury with regard to premeditiation and the elements required

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for the respective degrees of murder by way of CALCRIM Nos. 520 and 521. (Clerk’s Tr.

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at 2456-59.) CALCRIM No. 521 explained that a defendant is guilty of first degree

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murder if he “acted willfully, deliberately, and with premeditation” or if he “murdered while

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lying in wait or immediately thereafter,” which consists of an intent to surprise attack the

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victim and a waiting period equivalent to deliberation or premeditation. (Id.) CALCRIM

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No. 702 added that, for a nonkiller to be guilty of the multiple murder special

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circumstance, the defendant must have “acted with the intent to kill.” (Id. at 2464.) Based

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on the instructions as given, the jury could only reach a guilty verdict for first degree

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premeditated murder if they found that either Petitioner personally fired the fatal shots

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with premeditated specific intent to kill, or Petitioner knew that the shooter fired the fatal

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shots with premeditated specific intent to kill and Petitioner specifically intended to aid
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the shooter commit this offense and actually did aid the shooter. Under either scenario,

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Petitioner must have possessed a premeditated and deliberated specific intent to kill.

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Further, Petitioner has presented no evidence from the record suggesting that the

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jurors believed the “equally guilty” language in CALCRIM No. 400 required them to

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determine Petitioner’s criminal liability based on the perpetrator’s mental state, rather

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than his own. The jury did request further instruction regarding the different degrees of

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murder, but nothing about the request indicated that the jury had any concern with

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regard to varying levels of culpability of Petitioner and co-defendants. However nothing

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about the request indicated whether the jury was questioning Petitioner’s intent or that of

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all co-defendants. Based on all of the circumstances, the Court of Appeal reasoned that

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it was difficult to see how a murder committed as a result of a conspiracy to shoot into an

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occupied vehicle could be anything but premeditated and foreseeable. People v.

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Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 494-95. This Court agrees. All of the

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evidence surrounding the shootings provide little reason to believe that Petitioner, as a

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member of a criminal street gang, possessed a premeditated and deliberate intent to kill

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when participating in the shootings. Sufficient evidence was presented to find that

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Petitioner was aware, even if he was an aider and abettor, of the intended actions of the

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perpetrator, and likewise possessed a willful, deliberate and premeditated intent to

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commit murder, when participating in the offenses. Petitioner has not raised any factual

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evidence from the trial that would support a finding of confusion on the part of the jury,

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nor is the Court aware of any facts that would support such a conclusion based on its

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review of the record.

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The state court also rejected Petitioner’s contention that the erroneous inclusion

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of “other crimes” phrase in CALCRIM No. 400 created additional confusion on behalf of

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the jury. The Court of Appeal denied the claim, finding the language to be extraneous, as

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the prosecution did not present a theory of liability based on the natural and probable

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consequences doctrine, which the “other crimes” phrase referred. The trial court never

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mentioned the natural and probable consequences doctrine in conjunction with aiding
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and abetting liability, nor identified or requested the jury to find specific circumstances

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under which Petitioner could be guilty of other crimes. The prosecutor did not present or

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rely on the natural and probable consequences doctrine in the context of aiding and

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abetting. Accordingly, there was no risk that the jurors based their “finding of guilt on

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intent to aid and abet some unspecified ‘nefarious’ conduct.” People v. Johnson, 2013

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Cal. App. Unpub. LEXIS 6838 at 496-497.

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A review of the record confirms that the prosecution did not present a theory of

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liability based on the natural and probable consequences as to aiders and abettors. The

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prosecution expressly declined to rely upon this theory of liability. (See Rep. Tr. at 9208

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(prosecution withdrew jury instruction CALCRIM No. 402 on natural and probable

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consequence doctrine)); (Rep. Tr. at 10938-10940 (prosecution’s description of

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accomplice liability during closing argument omitted natural and probable consequences

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doctrine.)). Based on the evidence presented, the state court was reasonable in

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determining that the jury ignored the language of the “other crimes” phrase of the jury

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instruction in reaching a verdict. There is no reasonable likelihood that the jury applied

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the “other crimes” phrase in CALCRIM No. 400 in a manner that reduced the

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prosecution’s burden of proof or otherwise had a substantial and injurious effect or

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influence in determining the jury's verdict.

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The state court determined that the instructions did not create confusion in this

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instance, and comported with California law regarding the mental state required for

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aiding and abetting liability. Federal habeas relief is foreclosed. Estelle, 502 U.S. 62, 68

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("We have stated many times that federal habeas corpus relief does not lie for errors of

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state law."). Accordingly, Petitioner's claim of instructional error should be rejected.2

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l.

Claim Twelve – Cumulative Error

Petitioner, in his twelfth claim, contends that the cumulative effect of the errors at

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To the extent that Petitioner attempts to alternatively present this claim based on a theory of
ineffective assistance of counsel, the claim fails based on lack of showing that Petitioner was prejudiced
by the jury instructions or counsel’s conduct. Strickland, 466 U.S. 668, 686 (1984).

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trial violated his rights.

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1.

State Court Decision

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Petitioner presented this claim by way of direct appeal to the California Court of

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Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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appellate court and summarily denied in subsequent petition for review by the California

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Supreme Court. (See Lodged Docs. 6-7, 9.) Because the California Supreme Court's

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opinion is summary in nature, this Court "looks through" that decision and presumes it

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adopted the reasoning of the California Court of Appeal, the last state court to have

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issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

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In denying Petitioner's claim, the Fifth District Court of Appeal explained:

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Cumulative Prejudice

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Defendants contend the cumulative effect of the errors at trial
rendered the trial fundamentally unfair. The People disagree.

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A number of errors occurred at trial, some trivial and some not. No
individual error furnished cause for reversal of the verdicts in their entirety.
When we examine the cumulative effect of the errors found and assumed,
we still find no cause for reversal. The properly admitted evidence, while
primarily circumstantial, was overwhelming as to each of the three
defendants. (Contrast People v. Felix (1993) 14 Cal.App.4th 997, 10081009.) Although the prosecutors had an unfortunate tendency to
overprove their case (see People v. Williams, supra, 170 Cal.App.4th at p.
610), neither that nor the errors — even taken together — undermine the
fairness of the trial as a whole. Although defendants did not receive a
perfect trial, they received the fair one to which they were entitled. (People
v. Beeler (1995) 9 Cal.4th 953, 994.)
Nor did "'"gross unfairness"'" or the denial of a fair trial result from
the denial of severance. (People v. Ervin (2000) 22 Cal.4th 48, 69.) Our
review of the record as a whole "fails to show that the jurors in this joint
trial were unable or unwilling to assess independently the respective
culpability of each codefendant or were confused by the limiting
instructions." (Ibid.; contrast People v. Biehler (1961) 198 Cal.App.2d 290,
298, 303.) The mere possibility of juror confusion is not enough. (See
Ervin, at p. 69.)
People v. Johnson, 2013 Cal. App. Unpub. LEXIS 6838 at 546-47.
2.

Analysis

26
The Ninth Circuit has concluded that under clearly established United States
27
Supreme Court precedent, the combined effect of multiple trial errors may give rise to a
28
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due process violation if it renders a trial fundamentally unfair, even where each error

2

considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927

3

(9th. Cir. 2007) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and

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Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). See also Hayes v. Ayers, 632 F.3d

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500, 524 (9th Cir. 2011) (if no error of constitutional magnitude occurred at trial, "no

6

cumulative prejudice is possible"). "The fundamental question in determining whether the

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combined effect of trial errors violated a defendant's due process rights is whether the

8

errors rendered the criminal defense 'far less persuasive,' Chambers, 410 U.S. at 294,

9

and thereby had a 'substantial and injurious effect or influence' on the jury's verdict."

10

Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S. at 637).

11

This Court has addressed each of Petitioner's claims raised in the instant petition

12

and has concluded that no error of constitutional magnitude occurred at his trial in state

13

court. This Court also concludes that the errors alleged by Petitioner, even when

14

considered together, did not render his defense "far less persuasive," nor did they have

15

a "substantial and injurious effect or influence on the jury's verdict." Accordingly,

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Petitioner is not entitled to relief on his claim of cumulative error.

17

IV.

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Recommendation
Accordingly, it is hereby recommended that the petition for a writ of habeas

corpus be DENIED with prejudice.

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This Findings and Recommendation is submitted to the assigned District Judge,

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pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after

22

being served with the Findings and Recommendation, any party may file written

23

objections with the Court and serve a copy on all parties. Such a document should be

24

captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply

25

to the objections shall be served and filed within fourteen (14) days after service of the

26

objections. The parties are advised that failure to file objections within the specified time

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///

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///
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may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d

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834, 839 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

April 14, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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