Armstrong v. Harris

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 7/6/2017 RECOMMENDING petitioner's 1 petition for writ of habeas corpus be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TONY ARMSTRONG,

12

Petitioner,

13
14

No. 2:15-cv-1090 MCE DB P

v.

FINDINGS AND RECOMMENDATIONS

KAMALA HARRIS,

15

Respondent.

16
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

17
18

writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction

19

entered against him on September 9, 2014 in the Sacramento County Superior Court on a count of

20

second degree murder with a gun enhancement. He seeks federal habeas relief on the grounds

21

that: (1) there was insufficient evidence to convict him of aiding and abetting; (2) counsel was

22

ineffective for failing to object to gang evidence; (3) counsel was ineffective for failing to object

23

to prosecutorial misconduct in closing argument; (4) instructional error; and (5) the cumulative

24

effect of all errors violated due process.
Upon careful consideration of the record and the applicable law, the undersigned

25
26

recommends that petitioner’s application for habeas corpus relief be denied.

27

////

28

////
1

1

BACKGROUND

2

The victim, Jose Guerrero, lived on Lindley Drive in Sacramento,
in an area known as the Flats. At the time of his death, he had lived
there for about eight years with his wife, Celica Cardenas, and their
children.[fn 1]

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Flats is predominantly controlled by two street gangs, the
Norteños and the Bloods, both of which identify with the color red.
The Norteños and the Bloods are known to associate with each
other in the Flats. There are also Sureños in the area, however. The
Sureño street gang, which identifies with the color blue, is the main
rival of the Norteños. A Norteño gang member would take it as a
sign of disrespect if a Sureño gang member wore blue in a Norteño
neighborhood, and such an act could lead to a verbal or physical
confrontation.
The house where Guerrero and Celica lived with their children was
on the north side of Lindley between Grove Avenue to the east and
Edgewater Road to the west. The house was known in the Flats as
being associated with the Sureños. In fact, Celica's 21–year–old
son, Federico, who had been living in the house off and on up until
the time of the shooting, was a validated Sureño gang member.
Defendant is a validated member of the Del Paso Heights Bloods
who goes by the nickname “T Blood.” Among others, he has a
tattoo on his stomach that reads, “Hood Boss,” a tattoo on his left
forearm that reads, “Da Flats,” and a tattoo on his back that reads,
“Blood 4 Life.”
Defendant was known to associate with Norteño gang members. In
particular, he was friends with Noe Ortiz, a Norteño associate who
lived on the northwest corner of Lindley and Edgewater, down the
street from Guerrero's house. Defendant was also friends with Jose
Gonzalez (also known as Pepe), a friend of Noe's who is a validated
Norteño gang member. Defendant and Pepe sold “weed” back and
forth to each other.
Noe and Pepe were part of a group of friends—all of whom are
associated with the Norteño gang—who went to Grant High School
and hung out together. The other members of the group were Pepe's
brother, Juan Carlos Gonzalez (also known as Cho Che); Jaime
Torres; Jaime's brother, Hugo Torres; Jaime and Hugo's uncle,
Sergio Torres; and Mario Vargas. Jaime, Hugo, Sergio, and Vargas
are all Norteño gang members (Vargas is validated), and Juan
Carlos is a Norteño associate.
In the early evening on Memorial Day in 2008, Guerrero was sitting
out in front of the open garage door of his house visiting with a
friend and the friend's two children. One of the friend's children,
Christian, who was 15 years old, was wearing a blue baseball cap
and long blue shorts.
While they were sitting there, Christian noticed a Hispanic male
drive by twice on a four-wheeled motorcycle, staring and “giving
2

1
2
3
4
5

[them] a bad look.” Fifteen to 30 minutes later, Christian saw a blue
car with four or five people in it driving past from east to west. The
person in the front passenger seat, who was wearing a red bandana
covering his nose and mouth, was leaning out of the car window
flashing a gang sign—specifically, an “L” made with his thumb and
forefinger, which Christian understood to be a Norteño gang sign
signifying the “l” in Gardenland. The car was initially going fast as
it approached Guerrero's house, but it slowed down for the speed
bump in the street just beyond Guerrero's driveway, then sped
away.

6
7
8
9
10
11
12
13
14
15
16
17
18

Around this same time (7:00 p.m.), down Lindley to the west, about
three houses west of the intersection with Edgewater, Luis Cabrera
was in his front yard barbecuing when he saw a blue Chevrolet
four-door “going really fast” westward on Lindley with “somebody
hanging out the window.” Cabrera could tell the driver was a black
man, but could not tell more than that because the car was going too
fast; he did, however, recognize the car as one defendant regularly
drove. (Other evidence confirmed that the blue Chevrolet Lumina
with the grey hood was defendant's car.) The person hanging out
the front passenger window was a Hispanic male who had a “red
rag” covering his face and was throwing gang signs. The car drove
past Cabrera's house and out of sight.
Thinking that the guy wearing the red rag going by Guerrero's
house might be some kind of gang challenge, Cabrera walked from
near his front door, where he was standing when the car went by, to
the sidewalk and looked back up the street. There, he saw two cars
parked near the intersection of Lindley and Edgewater—a white car
he did not recognize and a two-tone Chevelle he recognized as one
that Pepe drove. He also saw four or five Hispanic males, including
“the guy with the rag on his face,” “[k]ind of like power walking”
from out of his view on Edgewater, turning up Lindley toward
Guerrero's house, pulling up their pants and cinching their belts as
if they were preparing for a fight.[fn 2] Cabrera recognized Pepe as
being among that group.

19
20
21
22
23
24
25
26
27
28

Cynthia Gutierrez, Noe's girlfriend at the time, lived on the south
side of Lindley, approximately midway between Guerrero's house
and the intersection of Lindley and Edgewater. She was sitting in a
car in front of her house with a friend when she saw Pepe and
Jaime, who had a red bandana on his face, walking fast up Lindley
toward Guerrero's house. They looked mad and like they were
about to fight. Gutierrez moved the car down the street and parked
in front of the friend's house, which was across the street and two
houses down from Guerrero's house. When she got out of the car,
Gutierrez saw Jaime and Guerrero yelling at each other.
Meanwhile, about 10 minutes after the blue car drove past
Guerrero's house, Christian saw “like 15” or “like 20 people”
walking up to the house from the west. One of them, who was
wearing a red bandana on his face and whom Christian thought was
the same person who had leaned out of the blue car when it drove
by, came onto the sidewalk, while the others remained in the street.
(Based on Gutierrez's testimony, and other evidence, the person
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

with the red bandana on the sidewalk was Jaime.) Jaime said,
“where are your cousins,” then began moving up the driveway
cursing repeatedly, “where are the fucking scraps?” “Scrap” is a
derogatory word for a Sureño. At some point, Jaime, who was in
the middle of the driveway, stared at Christian, who was wearing
blue, pulled out a gun and showed it to them, then put it back.
Jaime then backed up.
When Guerrero saw the gun, he stood up and took out his cell
phone and announced two or three times that he was calling the
police. Jaime told him not to call the police, that they only wanted
to talk to “the cousins”—which Christian understood to refer to
Celica's sons, Roberto and Federico. When Guerrero did not put
down the phone, Jaime took out his gun again and pointed it at
Guerrero. Guerrero dropped his cell phone and rushed at Jaime,
then grabbed him and started wrestling with him. The struggle
moved from the driveway, onto the sidewalk, and into the street. As
Guerrero struggled to get the gun, the bandana slipped from Jaime's
face, and he struggled to pull it back up. Guerrero managed to hit
the gun and knock it out of Jaime's grasp into the street, where the
rest of the group was standing. One of the members of the group
picked up the gun and approached to where Guerrero and Jaime
were still struggling against each other. He pointed the gun at
Guerrero and fired once, but missed. He fired a second time, and
the bullet struck Guerrero in the head, penetrating through his brain
into his neck. Guerrero immediately fell forward on his face and
later died at the hospital from the gunshot wound.
Meanwhile, when Guerrero fell, Jaime and everyone else in the
street ran back down Lindley toward Edgewater. Vargas (who
testified at trial under a grant of immunity) admitted to police he
was outside Noe's house with Noe, Pepe, Juan Carlos, Hugo, and
Sergio. He claimed he remained at the corner, and while he said he
did not remember whether his friends walked up the street, he did
tell the police they came running back, and Jaime said “‘[m]an, that
guy just shot.’”

19
20
21
22
23

According to Vargas, he, Pepe, Juan Carlos, Sergio, and Hugo fled
in the Chevelle, while Jaime left in another car. On a nearby street
(Arcade Boulevard), the Chevelle got stuck briefly on a tree stump
that was in the road. When the two front occupants got out of the
car, they were holding large beer bottles. They managed to free the
car from the stump and drive away, but they left one of the beer
bottles behind, as well as a trail of fluid from the car. The next
morning, the police followed the trail to the home of Pepe and Juan
Carlos.

24
25
26
27
28

Meanwhile, about three to five minutes after the Chevelle drove
away leaving the beer bottle behind, a police car came by and the
witness who saw the Chevelle pointed the police in the direction the
car went. The police officer immediately departed without further
conversation. A minute or so later, another police officer came by,
and the witness told that officer what she had seen. The officer told
her to watch the bottle, then left in the direction the other officer
had gone.
4

1

Five or 10 minutes later, a black SUV came by. Defendant was one
of the occupants of the SUV. As the SUV was driving down
Arcade, defendant told the driver to stop. When the SUV stopped,
defendant got out and picked up the beer bottle that had been left
behind by the occupants of the Chevelle, then got back in the SUV.
During the incident, the witness watching the bottle heard someone
in the SUV say, “Get that bottle so they can't get any prints off it.”

2
3
4
5

In September 2008, the People charged defendant, Pepe, Juan
Carlos, Noe, Hugo, Jaime, Sergio, and Vargas with Guerrero's
murder. (The People later dropped the charge against Vargas and
granted him immunity for his testimony.) The information included
allegations that at least one principal intentionally and personally
discharged a firearm, causing death, and that the crime was
committed for the benefit of, at the direction of, and in association
with a criminal street gang.

6
7
8
9

The prosecution's theory against defendant was that defendant aided
and abetted the crime of fighting or challenging another person to
fight by driving some of the Norteños by Guerrero's house just
before the confrontation, and the murder of Guerrero was a natural
and probable consequence of that target offense.

10
11
12

[fn 1] Together, Guerrero and Celica had two young
daughters, and Celica had three other children of her own—
a daughter and two sons.

13
14

Because many of the people involved in this case have the
same surnames (e.g., Cardenas, Torres, Gonzales), to avoid
confusion we will often refer to people by their first names
or nicknames.

15
16
17

[fn 2] An aerial photograph of the neighborhood shows that
after crossing Edgewater, Lindley bends southwest, then—
about six houses past Cabrera's—turns 90 degrees to the
northwest where, one house later, it dead ends into Redondo
Avenue, such that the houses on the north side of Lindley
(including Cabrera's) back up to the houses on the south side
of Redondo. Following Redondo northeastward, the street
bends to the east just before it crosses Edgewater two
houses north of Edgewater's intersection with Lindley. The
block on Redondo between Lindley and Edgewater consists
of 12 houses. Thus, a car passing Cabrera's house could
follow Lindley to its end, turn right on Redondo and be at
the intersection of Redondo and Edgewater, two houses
north of the intersection of Edgewater and Lindley, within a
matter of moments.

18
19
20
21
22
23
24

In fact, Cabrera estimated that it was “within about two
minutes” from the time he saw the blue car pass his house

25
26
27

////

28

////
5

1

until he saw the group walking up Lindley toward
Guerrero's house.

2
3

People v. Armstrong, No. C063362, 2011 WL 3806154, at *2-4 (Cal. Ct. App. Aug. 29, 2011).1
PROCEDURAL HISTORY

4

On July 28, 2009, a jury found defendant guilty of first degree murder and also found the

5
6

firearm use and gang enhancement allegations true. The trial court imposed a sentence of 25 years

7

to life on the murder charge and a consecutive sentence of 25 years to life on the firearm use

8

enhancement. However, pursuant Penal Code § 12022.53, no sentence was imposed on the gang

9

enhancement. See Armstrong, 2011 WL 3806154, at *4 n.3 (citing People v. Brookfield, 47 Cal.

10

4th 583 2009)). And, the gang enhancement did not become part of the judgment. See Cal.

11

Penal Code § 12022.53(e)(2).
Petitioner raised five issues on appeal: (1) insufficient evidence of aiding and abetting;

12
13

(2) the gang expert’s testimony exceeded the scope of permissible opinion and counsel was

14

ineffective for failing to object; (3) prosecutorial misconduct in closing argument and ineffective

15

assistance of counsel for failing to object; (4) jury instructions on the natural and probable

16

consequences doctrine violated due process; and (5) the cumulative effect of the errors in

17

petitioner’s trial violated due process. (See Lodged Doc. 15 (“LD 15”) Appellant’s Opening

18

Brief (“AOB”).2) The Court of Appeal for the Third Appellate District rejected petitioner’s

19

claims, with one exception. The Court of Appeal found the jury instructions erroneous because

20

they did not allow the jury to consider whether petitioner may have been guilty of only second

21

degree murder under the natural and probable consequences doctrine. The court reversed

22

petitioner’s conviction and remanded for a retrial unless the state accepted a reduction of the

23

conviction to second degree murder. Armstrong, 2011 WL 3806154, at *18.

24

////

25

1

26
27
28

A copy of the Court of Appeal’s opinion can also be found attached to the answer. (ECF No. 16
at 11-29.)
2

On September 18, 2015, respondent lodged documents from the state court record. (See ECF
No. 17.) Citations herein to the Record of Transcript are indicated by “RT” and citations to the
Clerk’s Transcript on Appeal are “CT.”
6

1

Both parties petitioned for review before the California Supreme Court. On November

2

30, 2011, the court denied petitioner’s petition and granted respondent’s. (See LD 18, court

3

docket in People v. Armstrong, No. S196985.) The court deferred further briefing in the case

4

pending disposition of a related issue in People v. Favor, No. S189317. (Id.) On October 31,

5

2012, the court again deferred briefing pending the disposition of People v. Chiu, No. S202724.

6

(Id.) On August 13, 2014, the court dismissed respondent’s petition based on the decision in

7

People v. Chiu, 59 Cal. 4th 155 (2014).3 (Id.)

8
9

On September 9, 2014, the superior court, noting that the state accepted the reduction of
the crime, modified petitioner’s judgment to reflect a conviction for second degree murder.

10

Petitioner was then sentenced to 15 years-to-life for second degree murder, plus an additional and

11

consecutive 25 years-to-life for the gun enhancement. (LD 19.)

12
13

It does not appear that petitioner raised any claims through the state habeas corpus
process.

14

STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

15

An application for a writ of habeas corpus by a person in custody under a judgment of a

16

state court can be granted only for violations of the Constitution or laws of the United States. 28

17

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

18

application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

19

U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

20
21

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:

22

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim –

23
24

(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

25
26
27
28

3

The California Supreme Court in Chiu held that an aider and abettor may not be convicted of
first degree premeditated murder under the natural and probable consequences doctrine. 59 Cal.
4th at 166.
7

1
2

(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.

3

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

4

holdings of the United States Supreme Court at the time of the last reasoned state court decision.

5

Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011)

6

(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be

7

persuasive in determining what law is clearly established and whether a state court applied that

8

law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th

9

Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle

10

of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

11

announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 567

12

U.S. 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely

13

accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be

14

accepted as correct.” Id. at 1451. Further, where courts of appeals have diverged in their

15

treatment of an issue, it cannot be said that there is “clearly established Federal law” governing

16

that issue. Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

17

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

18

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

19

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003)

20

(quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §

21

2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct

22

governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that

23

principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

24

(quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]

25

federal habeas court may not issue the writ simply because that court concludes in its independent

26

judgment that the relevant state-court decision applied clearly established federal law erroneously

27

or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;

28

see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not
8

1

enough that a federal habeas court, in its independent review of the legal question, is left with a

2

firm conviction that the state court was erroneous.” (Internal citations and quotation marks

3

omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief

4

so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.”

5

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

6

664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a

7

state prisoner must show that the state court's ruling on the claim being presented in federal court

8

was so lacking in justification that there was an error well understood and comprehended in

9

existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

10

There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693

11

F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not

12

supported by substantial evidence in the state court record” or he may “challenge the fact-finding

13

process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox,

14

366 F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.

15

2014) (If a state court makes factual findings without an opportunity for the petitioner to present

16

evidence, the fact-finding process may be deficient and the state court opinion may not be entitled

17

to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel,

18

applying the normal standards of appellate review,” could reasonably conclude that the finding is

19

supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

20

The second test, whether the state court’s fact-finding process is insufficient, requires the

21

federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact-

22

finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding

23

process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d

24

943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not

25

automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may

26

make factual findings without an evidentiary hearing if “the record conclusively establishes a fact

27

or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459

28

F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).
9

1

If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews

2

the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see

3

also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we

4

may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error,

5

we must decide the habeas petition by considering de novo the constitutional issues raised.”). For

6

the claims upon which petitioner seeks to present evidence, petitioner must meet the standards of

7

28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the]

8

claim in State court proceedings” and by meeting the federal case law standards for the

9

presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170,

10
11

186 (2011).
The court looks to the last reasoned state court decision as the basis for the state court

12

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

13

“[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from

14

a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the

15

reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en

16

banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim

17

has been presented to a state court and the state court has denied relief, it may be presumed that

18

the state court adjudicated the claim on the merits in the absence of any indication or state-law

19

procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be

20

overcome by showing “there is reason to think some other explanation for the state court's

21

decision is more likely.” Id. at 99-100 (citing Ylst, 501 U.S. at 803). Similarly, when a state

22

court decision on a petitioner's claims rejects some claims but does not expressly address a

23

federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was

24

adjudicated on the merits. Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).

25

A summary denial is presumed to be a denial on the merits of the petitioner's claims.

26

Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). Where the state court reaches a

27

decision on the merits but provides no reasoning to support its conclusion, a federal habeas court

28

independently reviews the record to determine whether habeas corpus relief is available under §
10

1

2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

2

“Independent review of the record is not de novo review of the constitutional issue, but rather, the

3

only method by which we can determine whether a silent state court decision is objectively

4

unreasonable.” Himes, 336 F.3d at 853 (citing Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir.

5

2000)). This court “must determine what arguments or theories . . . could have supported, the

6

state court's decision; and then it must ask whether it is possible fairminded jurists could disagree

7

that those arguments or theories are inconsistent with the holding in a prior decision of th[e]

8

[Supreme] Court.” Richter, 562 U.S. at 102. The petitioner bears “the burden to demonstrate that

9

‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

10

925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

11

When it is clear, however, that a state court has not reached the merits of a petitioner's

12

claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

13

habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

14

F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

15

PETITIONER'S CLAIMS

16

Petitioner raises five claims for relief: (1) there was insufficient evidence to convict him of

17

aiding and abetting; (2) the gang expert’s testimony was improper and counsel was ineffective for

18

failing to object to it; (3) the prosecutor committed misconduct in closing argument and counsel

19

was ineffective for failing to object it; (4) instructional error; and (5) the cumulative effect of all

20

errors violated due process.

21

I.

22

Petitioner’s first claim is that the evidence was insufficient to show he intended to aid and

23

abet Jaime, the man in the bandana, or others in fighting or challenging someone to a fight. (Pet.

24

(ECF No. 1 at 5-7, 46-55).)

25
26
27
28

Sufficiency of the Evidence

A. Applicable Legal Standards
1.

Federal Standards for Sufficiency of the Evidence

The United States Supreme Court has held that when reviewing a sufficiency of the
evidence claim, a court must determine whether, viewing the evidence and the inferences to be
11

1

drawn from it in the light most favorable to the prosecution, any rational trier of fact could find

2

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

3

319 (1979). A reviewing court “faced with a record of historical facts that supports conflicting

4

inferences must presume—even if it does not affirmatively appear in the record—that the trier of

5

fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id.

6

at 326. State law provides “for ‘the substantive elements of the criminal offense,’ but the

7

minimum amount of evidence that the Due Process Clause requires to prove the offense is purely

8

a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 32 S. Ct. 2060, 2064 (2012)

9

(quoting Jackson, 443 U.S. at 324 n.16).

10

The Supreme Court recognized that Jackson “makes clear that it is the responsibility of

11

the jury—not the court—to decide what conclusions should be drawn from evidence admitted at

12

trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence

13

only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2

14

(2011) (per curiam). Moreover, “a federal court may not overturn a state court decision rejecting

15

a sufficiency of the evidence challenge simply because the federal court disagrees with the state

16

court. The federal court instead may do so only if the state court decision was ‘objectively

17

unreasonable.’” Id. (citing Renico v. Lett, 559 U.S. 766 (2010)). The Supreme Court cautioned

18

that “[b]ecause rational people can sometimes disagree, the inevitable consequence of this settled

19

law is that judges will sometimes encounter convictions that they believe to be mistaken, but that

20

they must nonetheless uphold.” Id.

21
22

2.

State Law Standards

In California, a person who aids and abets a confederate in the commission of a criminal

23

act is liable not only for that crime, the target crime, but also for any other offense that is a natural

24

and probable consequence of the target crime. See People v. Prettyman 14 Cal. 4th 248, 254, 261

25

(1996). An aider and abettor is one who “act[s] with knowledge of the criminal purpose of the

26

perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating

27

commission of, the offense.” People v. Beeman, 35 Cal. 3d 547, 560 (1984) (emphasis in

28

original); see People v. McCoy 25 Cal. 4th 1111, 1117-18 (2001). In addition to the requisite
12

1

intent, an aider and abettor is only liable if he “by act or advice aids, promotes, encourages or

2

instigates, the commission of the crime.” Beeman, 35 Cal. 3d at 561. The act and the intent must

3

be coupled. McCoy, 25 Cal. 4th at 1117 (“guilt is based on a combination of the direct

4

perpetrator’s acts and the aider and abettor’s own acts and own mental state” (emphasis in

5

original)). “The test for an aider and abettor's liability for collateral criminal offenses . . . is

6

objective; it is measured by whether a reasonable person in the defendant's position would have

7

or should have known that the charged offense was a reasonably foreseeable consequence of the

8

act aided and abetted.” People v. Nguyen, 21 Cal. App. 4th 518, 535 (1993).

9

Petitioner was convicted of aiding and abetting the crime of fighting or challenging to

10

fight. Pursuant to California Penal Code §415(1), the crime is a misdemeanor defined as: “Any

11

person who unlawfully fights in a public place or challenges another person in a public place to

12

fight.”

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

B. State Court Decision
Defendant contends his murder conviction must be reversed
because there was insufficient evidence he aided and abetted the
target offense of fighting or challenging another person to fight
(Pen.Code, § 415, subd. (1)).[fn 4] More specifically, defendant
asserts “there was grossly insufficient evidence ... that [he] had
knowledge of the perpetrator's purpose to commit the target
offense, that [he] had the intent of at least encouraging or
facilitating commission of the target crime and that [he] acted to
aid, promote, encourage or instigate the commission of the crime.”
As we will explain, we disagree. Although the evidence was
circumstantial, that evidence, when viewed in the light most
favorable to the jury's verdict, was nonetheless sufficient to allow
the jury to conclude three things beyond a reasonable doubt. First,
the jury could have reasonably concluded that defendant aided,
promoted, or encouraged his Norteño gang member friends to
commit the offense of fighting or challenging another person to
fight when he drove some of them by Guerrero's house, then
dropped them off just down the block, from where they
immediately proceeded to Guerrero's house for the confrontation
that resulted in Guerrero's death. Second, the jury could have
reasonably concluded that when defendant drove by Guerrero's
house and dropped his cohorts off nearby, he knew they intended to
pick a fight with Guerrero or with other persons at the house. And
third, the jury could have reasonably concluded that when he drove
by Guerrero's house and dropped his companions off, defendant
intended to aid, encourage, or facilitate their commission of the
crime of fighting or challenging another person to fight.
Accordingly, the evidence was sufficient to convict defendant of
13

1

murder as an aider and abettor under the natural and probable
consequences doctrine.

2
A
3
Standard Of Review
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

“Whether a person has aided and abetted in the commission of a
crime ordinarily is a question of fact. [Citations.] Consequently, ‘
“all intendments are in favor of the judgment and a verdict will not
be set aside unless the record clearly shows that upon no hypothesis
whatsoever is there sufficient substantial evidence to support it.” ’ ”
(In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
“ ‘In determining whether a reasonable trier of fact could have
found defendant guilty beyond a reasonable doubt, the appellate
court “must view the evidence in a light most favorable to
respondent and presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.” ’
[Citation.] The same standard also applies in cases in which the
prosecution relies primarily on circumstantial evidence.” (People v.
Young (2005) 34 Cal.4th 1149, 1175, italics omitted.)
“ ‘ “If the circumstances reasonably justify the trier of fact's
findings, the opinion of the reviewing court that the circumstances
might also be reasonably reconciled with a contrary finding does
not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988)
46 Cal.3d 919, 933.) “ ‘An appellate court must accept logical
inferences that the [finder of fact] might have drawn from the
circumstantial evidence.’ ” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.)
“Circumstantial evidence is like a chain which link by link binds
the defendant to a tenable finding of guilt. The strength of the links
is for the trier of fact, but if there has been a conviction
notwithstanding a missing link it is the duty of the reviewing court
to reverse the conviction.” (People v. Redrick (1961) 55 Cal.2d 282,
289–290.)

20
B
21
Aiding And Abetting Liability
22
23
24
25
26
27
28

“[A] person aids and abets the commission of a crime when he or
she, acting with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the
commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561.)
“Except for strict liability offenses, every crime has two
components: (1) an act or omission, sometimes called the actus
reus; and (2) a necessary mental state, sometimes called the mens
rea. [Citations.] This principle applies to aiding and abetting
14

1
2
3
4
5
6
7
8
9
10
11

liability as well as direct liability. An aider and abettor must do
something and have a certain mental state.” (People v. McCoy
(2001) 25 Cal.4th 1111, 1117.) Thus, under the elements stated in
Beeman, the “act” component of aiding and abetting consists of
doing something that aids, promotes, encourages, or instigates the
commission of a crime, while the “mental state” component
consists of knowing the unlawful purpose of the perpetrator and
intending to commit, encourage, or facilitate the commission of the
offense.
Additionally, there must be a concurrence between the act and the
mental state—that is, “ ‘the two elements of crime must be
“brought together” in the sense of a causal relation between the
mens rea and the actus reus. Stated in other words, the actus reus
must be attributable to the mens rea....’ ” (People v. Martinez
(1984) 150 Cal.App.3d 579, 602–603, disapproved on other
grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
Thus, to be guilty of a crime as an aider and abettor, the defendant
must have engaged in the act that aided, promoted, encouraged, or
instigated the commission of a crime by the perpetrator because he
knew the unlawful purpose of the perpetrator and he intended to

12
13

commit the crime with the perpetrator or intended to encourage or
facilitate the perpetrator's commission of the crime.

17

“[I]n general neither presence at the scene of a crime nor
knowledge of, but failure to prevent it, is sufficient to establish
aiding and abetting its commission. [Citations.] However, ‘[a]mong
the factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.’ “
(People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

18

C

19

The Natural And Probable Consequences Doctrine

20

“[A] defendant may be held criminally responsible as an
accomplice not only for the crime he or she intended to aid and abet
(the target crime), but also for any other crime that is the ‘natural
and probable consequence’ of the target crime.” (People v.
Prettyman (1996) 14 Cal.4th 248, 261.)

14
15
16

21
22
23
24
25
26
27
28

“The test for an aider and abettor's liability for collateral criminal
offenses ... is objective; it is measured by whether 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 aided and abetted.” (People v. Nguyen
(1993) 21 Cal.App.4th 518, 535.) “In criminal law, as in tort law, to
be reasonably foreseeable ‘[t]he consequence need not have been a
strong probability; a possible consequence which might reasonably
have been contemplated is enough....’ “ (Ibid.) Furthermore, the test
“is case specific, that is, it depends upon all of the facts and
circumstances surrounding the particular defendant's conduct.”
15

1
2

(Ibid.) “A reasonably foreseeable consequence is to be evaluated
under all the factual circumstances of the individual case [citation]
and is a factual situation to be resolved by the jury.” (People v.
Medina (2009) 46 Cal.4th 913, 920.)

3
D
4
Analysis
5
6
7
8
9
10
11
12
13
14
15
16
17

With the foregoing legal principles in mind, we turn to defendant's
argument challenging the sufficiency of the evidence. Before we do
so, however, we pause to set forth one more very important
principle of law applicable to the issue before us. As we explained
several years ago in People v. Sanghera, supra, 139 Cal.App.4th at
pages 1573–1574: “Perhaps the most fundamental rule of appellate
law is that the judgment challenged on appeal is presumed correct,
and it is the appellant's burden to affirmatively demonstrate error.
[Citation.] Thus, when a criminal defendant claims on appeal that
his conviction was based on insufficient evidence of one or more of
the elements of the crime of which he was convicted, we must
begin with the presumption that the evidence of those elements was
sufficient, and the defendant bears the burden of convincing us
otherwise.... [¶] ... [¶][T]o prevail on a sufficiency of the evidence
argument, the defendant must present his case to us consistently
with the substantial evidence standard of review. That is, the
defendant must set forth in his opening brief all of the material
evidence on the disputed elements of the crime in the light most
favorable to the People, and then must persuade us that evidence
cannot reasonably support the jury's verdict. [Citation.] If the
defendant fails to present us with all the relevant evidence, or fails
to present that evidence in the light most favorable to the People,
then he cannot carry his burden of showing the evidence was
insufficient because support for the jury's verdict may lie in the
evidence he ignores.”

18
19
20
21
22
23
24
25
26
27

In arguing that the evidence here was insufficient to find defendant
aided and abetted the crime of fighting or challenging another
person to fight, defendant's appellate counsel fails to heed our
admonitions in Sanghera. For instance, counsel argues that “there
was no evidence to support the premise that [defendant] drove by
[the victim]'s house as part of an orchestrated plan to engage in a
physical confrontation with Sure[ñ]os” and “[i]t appears rather that
the Norte[ñ]os spotted [the victim] and his companions outside his
house and then, on the spur-of-the moment, they walked to the
house when drunk and intending to confront [the victim]'s Sure[ñ]o
stepsons.” These arguments, however, do not account for all of the
evidence that was presented and do not view that evidence in the
light most favorable to the People, as we must do. When we view
all of the evidence, consistent with the standard of review, the
picture that emerges is far different than the one appellate counsel
describes.
Viewed in the light most favorable to the jury's verdict, the
evidence was sufficient to establish the following facts, which,

28
16

1

when considered in their totality, reasonably support defendant's
conviction:

2
3
4
5

As previously noted, Guerrero's house was known in the Flats as
being associated with the Sureños. Celica's son Federico, who was a
validated Sureño, testified that he and his younger brother, Roberto,
would sometimes wear blue clothing around the house, but another
witness testified “[t]hey wore blue a lot” at Guerrero's house and
yet another testified “they were always out in the front yard with
blue stuff on” and it was “the only blue house in the neighborhood.”

6
7
8
9
10
11
12
13

Before the shooting, defendant was far from a stranger to Guerrero
and his “blue house.” Celica had seen defendant arguing with her
husband four times when her husband was at home. The arguments
occurred because defendant and others he was with would “go by
and burn tires and drive ... on the front yard,” and Guerrero would
tell them not to do that.
The evidence showed that Noe lived further down (to the west) on
Lindley from Guerrero and Celica, at the corner of Lindley and
Edgewater—across Lindley from Johnson Park. The evidence also
showed that defendant and Noe were friends and that defendant
would hang out in front of Noe's house. Also, there was a speed
bump on Lindley just to the west beyond Guerrero's driveway, i.e.,
on the way to Noe's.

14
15
16
17
18
19
20
21
22

In testifying about the arguments between her husband and
defendant, Celica testified that when she “would go to the park
[she] would see [defendant] with a lot of persons there and [at]
another house that is on that side at the corner.” She then testified
that her husband and defendant “would argue because [defendant]
would go by and burn tires and drive on the yard on the front yard.
They would not make a stop, all the people [who] went to that
house including him.” (Italics added.)
From this testimony, the jury reasonably could have found that
defendant—who drove down Lindley “[a]lmost every day”—made
it a practice of speeding by Guerrero's house and driving on
Guerrero's yard—perhaps to drive around the speed bump—on his
way to Noe's house. Guerrero objected to this practice. As Celica
testified, “[t]here were many children around,” and it was
Guerrero's objection—“tell[ing] them not to do that”—that led to
the arguments between defendant and Guerrero.

23
24
25
26
27
28

Beyond these general incidents, there was a specific incident
between defendant and Guerrero about a month before the shooting.
Celica was in her bedroom when her brother-in-law (who was
visiting) came running in and said, “ ‘Celica, run. They are going to
kill your children.’ ” Celica ran out into the yard, where she saw
defendant, who was at the front of a large group of people, hit one
of her sons' friends in the face, knocking him to the ground. Celica
got Federico and Roberto into the house, while Guerrero told
defendant and his companions to leave and that he was going to call
the police. Guerrero then took out his cell phone and called the
17

1
2
3
4
5
6
7

police. Defendant stood and cursed at Guerrero, but then left with
the group. Sometime during this incident, defendant was heard to
say that he or they “owned the streets.”
From the evidence, then, it was clear that by Memorial Day 2008
there was a history of conflict between defendant and the shooting
victim.
On the morning of Memorial Day, just before noon, Miguel
Balderas saw defendant hanging out in front of Noe's house with
Noe, Pepe, Juan Carlos, Vargas, and Jaime. There was mention of a
barbecue later that day at Pepe's house. Most of the group, except
for Noe and defendant, left in the Chevelle. Balderas then gave
defendant a ride home to a house on Arcade.

8
9
10
11
12
13

Later, in the evening, defendant was present at a barbecue at
Jaime's house with Jaime, Hugo, Sergio, Pepe, Juan Carlos, and
Vargas. They all decided to go to the Flats and left in at least two
vehicles, headed to Noe's house.
Cell phone records showed that defendant's cell phone connected
with Noe's cell phone for nearly a minute about an hour before the
shooting. Within a span of four minutes just before 7:00 p.m., four
connected calls were made from Noe's cell phone to Hugo's phone.
Within 20 minutes after the shooting, four connected calls were
made from defendant's cell phone to Noe's phone.

14
15
16
17
18
19
20
21

As detailed previously, the evidence also showed that around 7:00
p.m. defendant drove past Guerrero's house with some of the
Norteño gang members in his car. One of them—probably Jaime,
who was wearing a red bandana on his face—was leaning out the
window flashing a Norteño gang sign. The car sped down Lindley,
past the intersection with Edgewater, and out of sight. Moments
later, however, the occupants of defendant's car were seen coming
from Edgewater and turning up Lindley toward Guerrero's house,
pulling up their pants and cinching their belts as if in preparation
for a fight. They walked fast, with determination, and upon arrival
at Guerrero's house, Jaime immediately called out for “the fucking
Scraps,” which referred to Celica's sons, one of whom was a
validated Sureño. After Jaime threatened Guerrero with a gun, the
fight ensued that led to Guerrero being shot to death by one of the
Norteño gang members.

22
23
24
25
26
27
28

When interviewed by police after the shooting, defendant admitted
picking up the bottle but claimed it was because he was
“recycling.” He claimed the Norteños were “not some people that I
be around.” Later, however, he claimed they “were drinking a little
bit earlier.” He then said, “That was it. I came back, I fucking
parked.” But then he immediately changed his story, saying, “I
wasn't even driving.... [¶] ... [¶] I wasn't even driving my car that
day.” He later asserted he “was in the back seat of a car” and “[w]e
came back. I fucking got out to go take a piss. And I don't know,
man. I just fucking—I walked over to the fucking tree by Nicole's
house, I stood there, I pissed, shit, and I turn around, motherfucker
was gone. You know what I'm saying?” When the police asked who
18

1
2

was gone, defendant responded, “Motherfuckers was gone, man”
and “Psh, people.” Later in the interview, defendant changed his
story again, saying, “I went and got beer, and fucking I came back.
And that was, uh, fucking that.”

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Based on all of the foregoing facts, the jury could have drawn the
reasonable inference that sometime on Memorial Day, the idea
arose for the Norteños to go to Guerrero's house and confront the
Sureños they knew (or believed) lived there, with whom defendant
had previously had a number of arguments. Defendant helped carry
out this plan by driving some of the Norteños by the house with
Jaime leaning out the window with a red bandana on his face,
flashing a gang sign as a provocation to the people at Guerrero's
house. Defendant then dropped the Norteños in his car off at or near
Noe's house, but did not accompany them to the confrontation. He
did, however, make several cell phone calls to Noe shortly after the
shooting, and he soon went to the place on Arcade where the
fleeing Norteños had left a beer bottle when their car struck a tree
trunk, picking up the bottle so the police could not get fingerprints.
Based on the evidence, the jury could have reasonably found that
when he drove the Norteños by Guerrero's house and dropped them
off nearby, defendant knew they intended to pick a fight with
Guerrero or with other persons at the house and he intended to aid,
promote, or encourage the commission of that offense by his
actions. Accordingly, the evidence was sufficient to convict
defendant of the murder of Guerrero under the natural and probable
consequences doctrine because a reasonable person in defendant's
position would have or should have known that murder was a
reasonably foreseeable consequence of the confrontation he aided
and abetted.
Defendant contends “it is not known why the Norte[ñ]os decided to
go to Noe Ortiz's house on that Memorial Day” or “whether the
Norte[ñ]os had decided to go to Guerrero's house when they left
[Jaime's].” Defendant further contends “[i]t is pure speculation that
a plan was hatched at [Jaime's].” Regardless of the exact time when
they formed the plan, that there was a plan is reasonably inferable
from all of the evidence. As we have explained, the evidence
supports the conclusion that the Norteño gang members proceeded
directly and with determination toward Guerrero's house the
moment defendant dropped them off near Noe's after having driven
them by Guerrero's house with Jaime issuing a gang challenge as
they passed. This conduct is far more consistent with a planned
confrontation than with a “spur-of-the[-]moment” decision, as
defendant suggests.
Defendant contends “[t]here was no evidence [he] acted in any way
to encourage the Norte[ñ]os to walk to Guerrero's house.” Again,
we disagree. He drove some of the Norteños past the house and
dropped them off nearby, from where they immediately proceeded
to the confrontation that resulted in Guerrero's death. The jury
could infer from this—and the other evidence of defendant's
connections with the Norteños and his history with Guerrero—that
defendant knew of the confrontation that was to come and intended
19

1
2
3
4
5
6
7
8

to aid, promote, or encourage that confrontation by acting as their
“transporter”—driving the Norteños past the house to scout the
scene and initiate the challenge, then dropping them off nearby so
they could make their way to the house.
Defendant argues that “[h]ad [he] been interested in [the Norteños']
venture, he would have” “walk[ed] down the block with [them].”
That is an argument for a jury, not an appellate court. There is no
way we can say, as a matter of law, that the only reasonable
inference to be drawn from defendant's failure to join his Norteño
friends in the actual confrontation is that he never intended to aid,
promote, or encourage that confrontation. That was for the jury to
decide, and we cannot say the jury acted without the benefit of
substantial evidence in deciding that defendant intended to aid,
promote, or encourage the confrontation even though he did not
attend it.

9
10
11
12

We need not detail the remainder of defendant's arguments, which
are all in the same vein. Suffice it to say that in making his
arguments defendant refuses to consider all of the evidence against
him, taken as a whole and viewed in the light most favorable to the
jury's verdict. We, however, have done so, and for the reasons set
forth above we conclude that the evidence was sufficient to support
defendant's conviction.

13
14

[fn 4] That statute makes it a misdemeanor for a person to
“unlawfully fight[ ] in a public place or challenge[ ] another
person in a public place to fight.”

15
16

Armstrong, 2011 WL 3806154, at *4-11.

17

C. Analysis of Sufficiency of the Evidence Claim

18

Petitioner was connected to the crime by the following facts: (1) he was seen with both

19

Jaime and Noe, among others who were involved, on the day of the crime; (2) he drove by

20

Guerrero’s home shortly before the crime; (3) he had several Latino men in his car; (4) Jaime was

21

in the front passenger seat and was wearing a red bandana across his face, leaning out of his car

22

window, and flashing a Norteño gang sign at the people seated in Guerrero’s driveway; (5)

23

immediately after driving by Guerrero’s home, petitioner dropped off Jaime, and possibly others,

24

at or near the Ortiz home, just down the street from Guerrero’s home; (6) petitioner was familiar

25

with Guerrero and his stepsons; (7) Guerrero’s stepsons were known to be Sureño gang members;

26

(8) after the shooting, petitioner was driven to a location where others involved in the shooting

27

left a beer bottle, which petitioner took; and (8) petitioner made and received multiple phone calls

28

that day, both before and after the crime, from Noe Ortiz.
20

1

Petitioner contends there was no evidence he was, in fact, the driver of the car. He points

2

to testimony that a witness thought the driver was Latino. He also argues that there was no

3

evidence that, even if he was the driver, he knew his passengers intended to challenge or threaten

4

Guerrero’s stepsons. Petitioner focuses on the facts he was not in the group that walked to

5

Guerrero’s house so was not present during the altercation that lead to Guerrero’s death and the

6

lack of evidence that he was involved in any planning to threaten or challenge Guerrero’s

7

stepsons.

8
9

As the Court of Appeal points out, petitioner examines the evidence selectively. The state
court recognized that the legal standard for a sufficiency of the evidence claim requires the court

10

to consider the evidence in the light most favorable to the prosecution. In doing so here, this

11

court finds evidence supporting (1) the identification of petitioner as being involved that day with

12

the men who went to Guerrero’s home, (2) a reasonable inference that petitioner knew the men

13

intended to challenge or threaten Guerrero’s stepsons, and (3) a finding that petitioner helped the

14

men by driving them by Guerrero’s home and dropping them off nearby.

15

First, evidence was presented showing that petitioner was seen in the company of Jaime, a

16

Norteño gang member and his passenger with the red bandana, and of Noe, a Norteño associate,

17

on the day of the crime. (See 2 RT 524-25; 4 RT 1167; 6 RT 1506.) Christian Lopez, the

18

teenager sitting in Guerrero’s driveway with Guerrero and others, testified that he saw a blue car,

19

which he identified as a Taurus or Buick, drive by on the afternoon of the crime.4 A man in the

20

front passenger seat had a red bandana covering his mouth and nose. That man was leaning out

21

of the car and flashing a Norteño gang sign. (2 RT 441-444.) Luis Cabrera, who lived on

22

Lindley Drive, a short distance from Guerrero’s house, saw a blue Chevy Lumina, that he

23

identified as petitioner’s car, drive by that evening with a Latino man hanging out the front

24

passenger window, wearing a “red rag” over his face, and “throwing gang signs.” (3 RT 678-

25

681.) Cabrera could not identify the driver of the car but could see that it was a Black man. (3

26

4

27
28

Christian testified that the car drove by in the afternoon and that men came back 10 or 15
minutes later, resulting in the shooting. (2 RT 438, 446.) However, the shooting occurred in the
evening, around 7:00 p.m., so Christian’s estimate of the time the car drove by was obviously
incorrect.
21

1

RT 679.) Cabrera had seen petitioner driving the car many times and had never seen anyone else

2

drive it. (3 RT 680.) Petitioner’s girlfriend, Kenisha Ramsey, also testified that petitioner was

3

the only one who drove his car. (4 RT 1199.)

4

Second, evidence showed that petitioner dropped off Jaime, and possibly others, around

5

the intersection of Lindley and Edgewater, near Noe Ortiz’s home. Cabrera testified that just

6

seconds after he saw petitioner’s car go by, and disappear around a corner, he saw four or five

7

men walking down the street from that direction. One of the men was the man with the bandana

8

who had been in petitioner’s car. (3 RT 687.) Christian Lopez also testified that not long after he

9

saw the blue car drive by, he saw men walking down the street towards Guerrero’s house. One of

10

the men he identified as the man with the red bandana from the blue car. (2 RT 453, 455-456.)
Third, the men walking towards Guerrero’s house appeared to be preparing for a fight.

11
12

Both Cabrera and Christina Gutierrez, who also lived nearby and saw the men walk towards

13

Guerrero’s house, testified that they thought the men were getting ready to fight. Cabrera

14

testified that the men were “tying up their belts” and “pulling up their pants” like they were

15

getting ready to fight. (3 RT 693.) Gutierrez testified that it was unusual to see these men

16

walking in this area, they were walking quickly, and they looked mad. (2 RT 623-26.) She

17

thought they were going to get in a fight. (2 RT 623.)

18

Finally, the evidence that petitioner picked up the beer bottle after it was left by the group

19

of men who fled the scene identifies him as being part of the group. Casey Rhoads, a resident on

20

Arcade Boulevard, saw the two-tone Chevelle become stuck on a tree stump in the road. (4 RT

21

933-35.) She watched the men exit the vehicle and try to dislodge the stump. She saw that two

22

men who got out of the front seat were holding large beer bottles. One man placed a beer bottle

23

on the ground. (4 RT 941-42.) As the car was driving away, one of the men threw a beer bottle

24

through the car window and it shattered against a wall. (4 RT 945-46.)

25

Shortly after the vehicle drove off, two police cars came by. The officer in the second car

26

asked another Arcade Boulevard resident, Desiree Moore, to keep an eye on the bottle, which was

27

apparently lying on the sidewalk. (4 RT 1044.) Five or ten minutes later, a black SUV pulled up

28

////
22

1

and stopped in the street. Moore heard a voice in the car say, “Get that bottle so they can’t get

2

any prints off it.” She saw a Black man get out of the car and grab the bottle. (4 RT 1097-98.)

3

Tyrone Johnson testified that he was in the SUV with petitioner and others. While driving

4

down Arcade, the car stopped, petitioner jumped out of the car and grabbed a beer bottle. (3 RT

5

865-66.) A Sacramento Police Detective, Jason Kirtland, testified that shortly after the crime he

6

interviewed Jamar Brewer who told him he was also in the SUV with petitioner and Tyrone

7

Johnson. Brewer told Kirtland that petitioner was the one who told the driver to stop the car so

8

that he could pick up the beer bottle. (5 RT 1450-51.) Kirtland also interviewed Tyrone Johnson

9

the same day. Johnson also told him petitioner was the one who told the driver to stop the car. (5

10

RT 1457.)

11

The Court of Appeal decision finding sufficient evidence supported the aiding and

12

abetting verdict against petitioner was not objectively unreasonable. Evidence showed that

13

petitioner supported the actions of Jaime and, most likely, others in instigating a fight with

14

Guerrero’s stepsons by driving them past Guerrero’s house and stopping nearby to allow them to

15

walk back to the house and confront Guerrero. The fact that Jaime and the others started

16

preparing for a fight immediately after they got out of petitioner’s car was sufficient evidence for

17

a reasonable jury to find that petitioner knew they intended to instigate a fight with Guerrero’s

18

stepsons and intended to help them in doing so.

19

II.

Improper Testimony from Gang Expert/Ineffective Assistance of Counsel

20

Petitioner’s next claim is that the prosecution’s gang expert, Detective John Sample,

21

improperly opined that petitioner acted with the intent to assist the Norteño gang in its criminal

22

enterprises. (Pet. (ECF No. 1 at 9-11, 55-64).) Petitioner further argues that his attorney rendered

23

ineffective assistance by failing to object to this testimony. (Id. at 64-69.)

24

In his state appellate brief, petitioner made these same two claims. However, in his petition

25

for review to the California Supreme Court, petitioner argued only that his counsel was

26

ineffective for failing to object to the gang expert testimony. (See LD 18.) This limitation on his

27

claim is unsurprising. Because he did not raise the issue at trial, California’s contemporaneous

28

objection rule would bar appellate review of the issue. Respondent raised the default of the issue
23

1

in his state court appellate brief. (See Resp’t’s Brief (“RB”) (LD 16) at 29.) And, the Court of

2

Appeal’s decision addresses only the ineffective assistance of counsel issue. Armstrong, 2011

3

WL 3806154, at *14-15.

4

This court may only consider claims that have been exhausted in state court. See 28

5

U.S.C. § 2254 (b)(1). In order to satisfy the federal exhaustion requirement, a state prisoner must

6

fairly present all of his federal claims to the state's highest court before he presents them to the

7

federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404

8

U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). In California, a

9

federal claim is fairly presented to the state's highest court only by presenting the claim to the

10

California Supreme Court either on direct appeal or in a habeas petition that describes the

11

operative facts and the legal theories upon which the claim is based. Picard, 404 U.S. at 277-78.

12

Because petitioner did not raise his claim of improper gang testimony in his petition for

13

review to the California Supreme Court, it is not exhausted and will not be considered here. This

14

court considers only petitioner’s claim of ineffective assistance of counsel for failure to object to

15

the gang expert testimony.

16

A. Applicable Legal Standards

17

To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1)

18

his counsel's performance was deficient and that (2) the “deficient performance prejudiced the

19

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is constitutionally

20

deficient if his or her representation “fell below an objective standard of reasonableness” such

21

that it was outside “the range of competence demanded of attorneys in criminal cases.” Id. at

22

687–88 (internal quotation marks omitted). “Counsel's errors must be ‘so serious as to deprive

23

the defendant of a fair trial, a trial whose result is reliable.’” Harrington v. Richter, 562 U.S. 86,

24

104 (2011) (quoting Strickland, 466 U.S. at 687).

25

A reviewing court is required to make every effort “to eliminate the distorting effects of

26

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

27

conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 669; see Richter, 562

28

U.S. at 107. Reviewing courts must also “indulge a strong presumption that counsel's conduct
24

1

falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

2

This presumption of reasonableness means that the court must “give the attorneys the benefit of

3

the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel

4

may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 195 (2011)

5

(internal quotation marks and alterations omitted).

6

Prejudice is found where “there is a reasonable probability that, but for counsel's

7

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

8

U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

9

outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”

10

Richter, 562 U.S. at 112. A reviewing court “need not determine whether counsel's performance

11

was deficient before examining the prejudice suffered by the defendant as a result of the alleged

12

deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of

13

sufficient prejudice . . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955

14

(9th Cir. 2002) (quoting Strickland, 466 U.S. at 697), amended and superseded on other grounds,

15

385 F.3d 1247 (9th Cir. 2004); United States v. Ray, No. 2:11-cr-0216-MCE, 2016 WL 146177,

16

at *5 (E.D. Cal. Jan. 13, 2016) (citing Pizzuto, 280 F.3d at 954).

17

B. Factual Background

18

Petitioner challenges counsel’s failure to object to the following testimony by Detective

19
20
21
22

Sample:
Q. So this will be the last thing that I am going to talk to
you about regarding hypotheticals. Let’s assume that this person
who we’re going to call Tony who drove, let’s assume, that he
drove by the victim’s house, the Sureno house just minutes before
there was going to be a shooting there.

23

A. Okay.

24

Q. And that he is driving a blue Lumina.

25

A. Okay.

26
27
28

Q. And he’s also allowing his right front passenger who is a
male Hispanic to lean out the right front passenger window while
wearing a red rag and while allowing that person to make gang
signs as they drive down the street, okay. Do you have that in your
head?
25

1
2
3

A. This is making gang signs to the same location.
Q. So they are driving down the street called Lindley,
driving down the street, right front passenger is making gang signs
but not also to the Sureno house but other victims as they drive
down the street.

4
A. Got you.
5
6

Q. Assume that person – we’re going to call this person
Tony. Assume that a witness who saw that car driving down the
street later identified to police that was, in fact, Tony’s car.

7
A. Okay.
8
9

Q. Assume that Tony claims to not hang out with any
Mexicans.

10
11

A. Okay.
Q. Assume this person Tony claims does not know
anybody that goes by the name Noe.

12
A. Okay.
13
14

Q. Assume that cell phone records show twenty plus phone
calls back and forth in one day between this person Tony and this
person Noe, both before and after the shooting.

15
16
17
18
19
20

Assume that this two-tone Chevelle hits this tree stump
where one of these occupants left the beer bottle. And assume that
minutes after that happened, this person who we’ll call Tony,
stopped at that scene where the tree stump was and told the drive to
stop the car and then this person, Tony, got out and picked up the
beer bottle. And assume that witnesses overheard somebody in that
group yell out the phrase, “Get the bottle so they can’t get any
prints.”

21

Assume that witnesses have named Tony as the person who
got the bottle. Assuming those facts, do you have those facts in
your head?

22

Yes.

23

Q. Do you have an opinion on whether or not this person Tony did
an act for the benefit of or in association with the Nortenos?

24
A. Yes.
25

Q. And what’s that opinion?

26
27

A. That Tony did commit an act both again in benefit of the
Norteno gang as well as in association with the Norteno gang.

28

Q. And why do you say that?
26

1
2
3

A. The scenario you gave to start with has Tony driving a Norteno
in his car past a Sureno house with the Norteno throwing gang signs
at that house.
Q. Does that benefit – does that not only benefit the Nortenos, but
is something done in association with Nortenos?

4
5
6
7

A. That is both in association with the fact that he is with actually
physically with the Norteno in his car, but it’s obviously benefiting
him by driving past this location. It benefits the Nortenos too. This
person is part of the fact this intimidating gesture throwing gang
signs out and wearing gang colors. Benefits the gang again adding
to reputation for not only ruthlessness but the threats that are going
out there.

8
9
10
11
12
13
14

Q. Does it do anything else in that scenario either benefits the
Nortenos or is something that is done in association with Nortenos?
A. Yes, it appears that he’s made phone contact. He said he made
phone contact. First, he denied knowing the person named Noe, but
then there is phone contact with this person named Noe, who is in
this other car that had left the scene with the original person with
the mask, you said was Jaime who is a Norteno.
Noe was with this Norteno named Jaime and left in the other car
with the other group with Norteno named Jaime.

16

Q. Let me clarify something in this hypo. Let’s assume Noe didn’t
leave in the car. Let’s assume Noe stayed in his house which is at
the intersection of Lindley and Edgewater, does that alter your
opinion at all?

17

A. No, I guess I was following the first one.

18

Q. That’s okay.

19

A. But Noe made the phone call to Tony. A phone call to Tony,
you said there was phone calls back and forth. After that Tony
drove to pickup a bottle left behind by this two-tone car which was
out at the crime scene. And somebody in Tony’s group said
something about picking up the bottle so they don’t get prints on it.
That would benefit the Nortenos by picking up that evidence from
the crime scene, obviously, to avoid the Nortenos being involved
with the prosecution or identification of the crime that was just
committed.

15

20
21
22
23
24
25

Q. Do you have a further opinion on whether or not this person
Tony did any of those acts with the specific intent to promote
further or assist the Nortenos in their criminal behavior?

26

A. Yes.

27

Q. And what’s that opinion?

28

A. They – he did – had a specific intent to both promote and assist
27

1
2
3
4
5
6

the Nortenos. The first part of promotion was the fact that he both
promoted and assisted the subject called – he said the person with
the red mask in the car or with the red – we’ll call Norteno. He
promoted and assisted him driving by and putting the initial
response out there with the gang signs and the red mask on which
again assisted with the threats and with the fear and intimidation
that Sureno and the community is going to feel.
The second part of going and getting the bottle also assisted
Nortenos by taking that evidence away from the crime scene.
Investigators most likely would not be able to identify the
perpetrators involved, those being Nortenos.

7
8
9
10
11
12
13
14
15
16
17
18
19
20

(6 RT 1662-1664.)
C. State Court Decision
Defendant contends his trial attorney was ineffective because he
failed to object to the testimony of the prosecution's gang expert in
response to “a so-called hypothetical that used [defendant]'s name
and summarized the prosecution's evidence.” According to
defendant, “[t]his testimony crossed over the line into
impermissible expert testimony by using improper hypothetical
questions to opine as to [defendant]'s mindset.”
Near the end of the direct examination of the gang expert,
Sacramento Police Detective John Sample, the prosecutor asked an
extended hypothetical question that incorporated specific details of
the case, including defendant's name (“Tony”), the type of car he
drove (“a blue Lumina”), and the name of the street (“Lindley”).
Based on that hypothetical, the prosecutor asked Detective Sample
if he had “an opinion on whether or not this person Tony did an act
for the benefit of or in association with the Norte[ñ]os?” Detective
Sample testified that he had an opinion and it was “[t]hat Tony did
commit an act both again in benefit of the Norte[ñ]o gang as well as
in association with the Norte[ñ]o gang.” Detective Sample then
offered the reasons for his opinion. The detective then testified as to
his opinion that “Tony” “had a specific intent to both promote and
assist the Norte[ñ]os.” Defense counsel did not object.

21
22
23
24
25
26
27
28

Defendant contends Detective Sample's expression of his opinion
that “Tony” acted for the benefit of or in association with the
Norteños and with the specific intent to promote and assist the
Norteños violated recognized limits on gang expert testimony
identified in People v. Killebrew (2003) 103 Cal.App.4th 644.6 In
Killebrew, “a ... police officer who testified as an expert witness on
gangs, [was allowed] to give an opinion about the intent and
knowledge of gang members when in the presence of guns.” (Id. at
p. 650.) Specifically, “[t]hrough the use of hypothetical questions,
[the officer testified] that each of the individuals in the three cars
(1) knew there was a gun in the Chevrolet and a gun in the Mazda,
and (2) jointly possessed the gun with every other person in all
three cars for their mutual protection. In other words, [the officer]
testified to the subjective knowledge and intent of each occupant in
28

1
2
3

each vehicle.” (Id. at pp. 650, 658.) Because the officer's
“testimony was the only evidence offered by the People to establish
the elements of the crime,” it was “the type of opinion that did
nothing more than inform the jury how [the officer] believed the
case should be decided,” and thus “[i]t was an improper opinion on
the ultimate issue and should have been excluded.” (Id. at p. 658.)

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

In an attempt to bring this case closer to Killebrew, defendant
contends that Detective Sample's testimony as to his opinion that
“Tony” acted for the benefit of or in association with the Norteños
and with the specific intent to promote and assist the Norteños was,
“[i]n effect, ... testimony that [defendant] aided and abetted the
crime, for [defendant] could not be acting in association with them
and to benefit them and to promote the crime without aiding and
abetting the crime.” Thus, in defendant's view, “Detective Sample
expressed his opinion as to how the jury should decide the case,”
which is impermissible.
“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 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, 1183.)

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

Keeping in mind that the question before us is not whether
Detective Sample's testimony that “Tony” acted for the benefit of or
in association with the Norteños and with the specific intent to
promote and assist the Norteños should have been excluded, but
whether defense counsel's failure to object to that testimony fell
below an objective standard of reasonableness and whether it is
reasonably probable the verdict would have been different if
defense counsel had objected, we conclude defendant has failed to
make the requisite showing. “Failure to object rarely constitutes
constitutionally ineffective legal representation....” (People v.
Boyette (2002) 29 Cal.4th 381, 424.) Moreover, in this specific
context, even Killebrew held that “[a] bright line cannot be drawn
to determine when opinions that encompass the ultimate fact in the
case are or are not admissible” and “[t]he issue has long been a
subject of debate.” (People v. Killebrew, supra, 103 Cal.App.4th at
pp. 651–652.) “ ‘[T]he 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.’ ” (Id. at p. 652,
quoting People v. Wilson (1944) 25 Cal.2d 341, 349.) Under the
circumstances here, defendant cannot show that had his trial
counsel objected to Detective Sample's opinion testimony the trial
court would have excluded it. (See People v. Roberts (2010) 184
Cal.App.4th 1149, 1194.) Furthermore, we are not persuaded that
had the evidence been excluded it is reasonably probable defendant
29

1

would have received a better result. Defendant himself admits
“[t]hat the incident was gang-related was overwhelmingly proven
by other evidence.” Nor are we inclined to believe that Detective
Sample's testimony that “Tony” acted for the benefit of or in
association with the Norteños and with the specific intent to
promote and assist the Norteños was, as defendant suggests, the
evidence that tipped the scale on the jury's determination “of
whether [defendant] had aided and abetted the Norte[ñ]os in their
crime.” Accordingly, we reject defendant's assertion of ineffective
assistance based on defense counsel's failure to object to that
evidence.

2
3
4
5
6
7

Armstrong, 2013 WL 3806154, at *14-15.

8

D. Analysis of Ineffective Assistance of Counsel Claim re Gang Expert Testimony

9

The Court of Appeal considered only whether petitioner was prejudiced by any failure of

10

his trial attorney to object to the gang evidence. It found no prejudice because it was not

11

reasonably probable that, had counsel objected, the evidence would have been excluded under

12

state law. The court further found that even had the evidence been excluded, there was no

13

reasonable probability the result of petitioner’s trial would have been different.

14

Initially, to the extent the Court of Appeal decision rested on a conclusion that Detective

15

Sample’s testimony would not have been excluded under state law, that decision may not be

16

reconsidered by this court. This court is bound by the state court’s determination of its own laws.

17

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state law,

18

including one announced on direct appeal of the challenged conviction, binds a federal court

19

sitting in habeas corpus.”); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts

20

are the ultimate expositors of state law”).
It is also worth noting that the Court of Appeals for the Ninth Circuit has held that admitting a

21
22

gang expert's testimony that a hypothetical crime was committed for the benefit of a criminal

23

street gang was not contrary to, or an unreasonable application of, clearly established federal law.

24

Briceno v. Scribner, 555 F.3d 1069, 1076-77 (9th Cir. 2009). Even assuming the evidence was

25

excluded, this court finds no reasonable probability the result of the proceeding would have been

26

different for two reasons. First, the evidence itself did not substantially effect the verdict. And,

27

second, even without the gang expert testimony, there was significant evidence upon which a jury

28

////
30

1

could reasonably have found petitioner intended to aid and abet the crime of fighting or

2

challenging to a fight.
With respect to the first point, the gang expert evidence was not a lynch pin to petitioner’s

3
4

conviction of aiding and abetting the crime of fighting. Detective Sample’s testimony tied

5

petitioner’s actions to Norteño gang activities. Yet, there was ample other evidence of gang

6

involvement in this case. In fact, the prosecution’s theory of the case was that Guerrero’s house

7

was targeted by Norteño gang members because Guerrero’s stepsons were members of the Sureño

8

gang. Testimony showed that the red bandana worn by Jaime, the passenger in petitioner’s car,

9

was a sign of Norteño membership and that Jaime flashed a hand sign representing the Norteños.

10

The purpose of the gang expert’s testimony was to support the gang enhancement. However,

11

as stated above, while the jury found the gang enhancement true, it was not included in the

12

judgment under Cal. Penal Code § 12022.53(e)(2). Therefore, its exclusion would have been

13

relevant to the enhancement rather than to petitioner’s conviction of the underlying crime. The

14

expert’s testimony had only an attenuated relationship to the underlying crime. The expert

15

testified that petitioner’s actions showed he was assisting the Norteño gang. That opinion was not

16

an ultimate fact to be determined in this case for the crime charged. The jury was instructed that

17

it had to determine whether petitioner intended to act to support the perpetrator’s intent to commit

18

the crime of fighting or challenging to a fight. (7 RT 1905.)

19

To address petitioner’s argument that the expert’s hypotheticals were particularly prejudicial

20

because they used petitioner’s name, courts have held that an expert’s use of a defendant’s name

21

is not, per se, a violation of due process. See Falcon v. Davis, No. CV 15-1215-PA (AGR), 2016

22

WL 2940535, at *10 (C.D. Cal. Apr. 5, 2016) (fact that the petitioner’s name used in hypothetical

23

did not “‘so infuse the trial with unfairness as to deny due process of law’” (quoting Estelle v.

24

McGuire, 502 U.S. 62, 75 (1991)), report or reco. adopted, 2016 WL 2930698 (C.D. Cal. May 17,

25

2017). Further, the expert’s conclusion from the hypothetical was that petitioner was assisting the

26

Norteño gang members in intimidating people at the Sureño house. (See 6 RT 1665-66.) He did

27

not conclude that petitioner would have known the Norteños intended to fight or challenge to a

28

////
31

1

fight. In other words, his testimony did not establish the specific intent necessary to show

2

petitioner aided and abetted the Norteños in fighting or challenging to fight.
Finally, the court notes that the jury was instructed to regard Detective Sample’s

3
4

testimony as not establishing the facts underlying his opinion. Specifically, the jury was told,

5

Witnesses were allowed to testify as experts and to give
opinions. You may consider the opinions, but you are not required
to accept them as true or accurate. The meaning and importance of
any opinion are for you to decide. In evaluating the believability of
an expert witness, follow the instructions about the believability of
witnesses generally.

6
7
8

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.

9
10
11

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.

12
13

An expert witness may be asked a hypothetical question. A
hypothetical question asks the witness to assume certain facts are
true and to give an opinion based on the assumed facts.

14
15

It’s up to you to decide whether an assumed fact has been
proved. If you conclude that an assumed fact is not true, consider
the effect of an expert’s reliance on that fact in evaluating the
expert’s opinion.

16
17
18

(7 RT 1898.) In addition, the jury was told that it could consider the evidence of gang activity

19

“only for the limited purpose of deciding whether the defendant acted with the intent, purpose and

20

knowledge that are required to prove gang related crimes and enhancements charged or the

21

defendant had a motive to commit the crimes charged.” (7 RT 1895.) The court presumes the

22

jury followed the instructions given. See Weeks v. Angelone, 528 U.S. 225, 226 (2000).
As set forth in the prior section, there was substantial evidence to support petitioner’s

23
24

conviction for aiding and abetting fighting without consideration of the gang expert’s testimony.

25

This court finds reasonable the state Court of Appeal’s holding that even had the evidence been

26

excluded, there is no reasonable probability the result of the proceeding would have been

27

different.

28

////
32

1

III.

2

In closing, the prosecutor argued that courts had held murder is a natural and probable

Prosecutorial Misconduct/Ineffective Assistance of Counsel

3

consequence of a fist fight.5 Petitioner argues the prosecutor committed misconduct by referring

4

to matters not in evidence and by placing the authority of the courts behind a determination that

5

the jury had to make. Petitioner further argues that his counsel was ineffective for failing to

6

object to this argument. (Pet. (ECF No. 1 at 12-14, 69-79).)

7

Again, because petitioner’s attorney failed to object to this argument at trial, the Court of

8

Appeal addressed only petitioner’s ineffective assistance of counsel claim. And, again, in his

9

petition for review to the California Supreme Court, petitioner’s argued only ineffective

10

assistance of counsel. Therefore, that is the only aspect of this claim which is exhausted and the

11

only aspect this court may address.

12

A. State Court Decision

13

Defendant contends his trial counsel was ineffective because he
failed to object to prosecutorial misconduct in closing argument.
Specifically, he complains that “[t]he prosecutor argued that if
[defendant] aided and abetted the fistfight, he was guilty of murder

14
15

because the authoritative body of the courts had said so,” and his
trial attorney “failed to object to this argument until too late.”

16

In arguing his case to the jury, the prosecutor told the jury, “There
are three things I get to argue in every case. I get to argue the law
which is kind of what we've been talking about. I get to argue about
the evidence, and I get to argue common sense.” After briefly
addressing common sense and the evidence (specifically, some of
Detective Sample's testimony), the prosecutor finished with “the
law,” arguing as follows: “Some time ago there was an old
California case called People versus Butts.[fn 7] And this case was
back in 1965, and this case said that murder is never a natural
probable consequence of a fistfight. You just can't have it. So that
was the court back in 1965.[¶] Well, the Court's have changed with
the times. They've kind of caught up with society. And 34 years
later in 1999, there was a case call[ed] Montez.[fn 8] I am going to
quote a couple of sentences.” At that point, defense counsel
interrupted, and a unreported discussion occurred. After that
discussion, the prosecutor resumed his argument as follows: “So,
we got this court back in 1965, that says a fistfight is never a natural
and probable consequence of murder. What I am going to tell you
now is the courts have changed their stance, and the courts have
totally done away with that line of thinking because they have

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

5

The prosecutor’s specific argument is set out in the Court of Appeal opinion below.
33

1
2
3
4

caught up with society, and have recognized that murder is a natural
and probable consequence of a fistfight. And that's common sense.
Common sense tells you that. The evidence tells you that based on
the expert who is uncontroverted and the law tells you that. [¶] So
whether the plan here was just to go fight some rivals, you know
the outcome was much different. It was much different, but it was
not unexpected. Murder was foreseeable. You know it. Detective
Sample knows it and the courts know it.”

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

After the prosecutor finished his initial argument, outside the
presence of the jury the trial court noted that defense counsel had
“asked that the District Attorney be prohibited from reading an
excerpt from this case and I sustained that objection” because “the
passage selected had a factual character to it that was
inappropriate.”[fn 9] Defense counsel then added the following:
“One brief comment because I didn't get to articulate it. It wasn't
just the reading of the passage. It was some of the argument in
which he essentially said the [courts] have found that murder is
[the] natural [and] probable consequence of a fistfight that is the
province of that jury. I think it improper. It is improper to tell this
jury that has been decided, that was a suggestion.” The court
responded that “at sidebar that argument was not articulated or
objection was not articulated. The one that was the objection with
regard to the reading. I sustained that objection. The District
Attorney complied then with my order, request not to—not to read
it.[¶] And I didn't address this other issue because it was not raised
at that time and it is not raised now in the sense of asking for
action.” When defense counsel responded, “True,” the court closed
with, “So I treat it as an observation.”
On appeal, defendant contends his attorney was ineffective in
failing to make a timely objection that encompassed not only the
prosecutor's intended reading from the Montes decision but also the
prosecutor's representation to the jury that “the courts ... have
recognized that murder is a natural and probable consequence of a
fistfight.” In defendant's view, the prosecutor misstated the law by
“telling the jury that as a matter of law, murder is a natural and
probable consequence of a fistfight in all cases, when the issue is a
fact-specific determination to be made by the jury based on the
individual facts of the case.”
“Although counsel have broad discretion in discussing the legal and
factual merits of a case [citation], it is improper to misstate the
law....” (People v. Bell (1989) 49 Cal.3d 502, 538.) To the extent
the prosecutor could be understood to argue that, following Montes,
the courts have recognized that murder is always a natural and
probable consequence of a fistfight, that was an improper
misstatement of the law. As we have previously noted, whether one
offense is a natural and probable consequence of another is a “case
specific” inquiry that “depends upon all of the facts and
circumstances surrounding the particular defendant's conduct.”
(People v. Nguyen, supra, 21 Cal.App.4th at p. 535.)

27
28

In light of defense counsel's closing argument to the jury, however,
we cannot conclude that his conduct, viewed as a whole, fell below
34

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

an objective standard of reasonableness, nor can we conclude that it
is reasonably probable defendant would have received a better
result if defense counsel had offered a complete contemporaneous
objection to the prosecutor's argument. This is so because, as the
People point out, defense counsel effectively addressed this aspect
of the prosecutor's argument in his own closing. Specifically,
defense counsel argued, “Yes, disturbing the peace can result in
shooting. No, it is not a natural likely and probable consequence.”
He then turned directly to the prosecutor's previous assertions based
on Montes:
“I mean, in his argument, unless I misunderstood him, I thought
[the prosecutor] was trying to say that, hey, it has been found that
shootings are [a] likely consequence of disturbing the peace.
“Okay. Well, there is only one person in this courtroom who is
going to give you the law, and it isn't him, and it isn't me. It is
Judge Connelly. And he's not going to tell you that. So you ask
yourself this question, if you get to the point and I don't think you
can or will, but if you get to the point where you think that Tony
Armstrong was in that car in that Lumina, he had planned and
assisted in this whatever challenge disturbance of the [peace], if you
get to that point, you have to ask yourself: Is it likely? Is it a natural
and probable consequence that kind of challenge will result in a
shooting death? Not can it. Not might it. Not did it. But is it a
natural and probable result? Would an objective person in that
setting expect that's what will lead, the answer to that question is
no.”
Subsequently, the trial court instructed the jury, “You must follow
the law as I explain it to you even if you disagree with it. If you
believe the attorneys' comments on the law conflict with my
instructions, you must follow my instructions.” Thereafter, the court
instructed the jury that “[t]o prove that the defendant is guilty of
murder as an aider and abettor, the People must prove that: [¶] ...
[¶] ... [u]nder all of the circumstances a reasonable person in the
defendant's position would have known that the commission of the
murder was a natural and probable consequence of the commission
of the fighting or challenging to fight” and that “[i]n deciding
whether a consequence is natural and probable, consider all of the
circumstances established by the evidence.”
In assessing whether defense counsel's conduct was unreasonable,
we refuse to view his failure to offer a complete contemporaneous
objection to the prosecutor's argument in isolation from the
thorough response he offered in his own closing. When defense
counsel's conduct in closing is viewed as a whole, it is plain that he
performed more than adequately. Moreover, given the instructions
the trial court gave—which we presume the jury followed (People
v.. Boyette, supra, 29 Cal.4th at p. 453)—we can find no reasonable
probability that, based on what the prosecutor had earlier argued
with respect to the Montes decision, the jury misunderstood the
natural and probable consequences doctrine and believed that
murder is always to be treated as a natural and probable
consequence of a fistfight. Accordingly, we reject defendant's
35

1

assertion of ineffective assistance based on the prosecutor's closing
argument.

2
[fn 7] People v. Butts (1965) 236 Cal.App.2d 817.
3
[fn 8] People v. Montes (1999) 7 Cal.App.4th 1050.
4
5
6
7
8
9

[fn 9] It is most likely the prosecutor wanted to read the
following passage: “Butts is also more than three decades
old, a remnant of a different social era, when street fighters
commonly relied on fists alone to settle disputes.
Unfortunately, as this case illustrates, the nature of modern
gang warfare is quite different. When rival gangs clash
today, verbal taunting can quickly give way to physical
violence and gunfire. No one immersed in the gang culture
is unaware of these realities, and we see no reason the courts
should turn a blind eye to them.” (People v. Montes, supra,
74 Cal.App.4th at p. 1056.)

10
11

Armstrong, 2011 WL 3806154, at *16-18.

12

B. Analysis of Ineffective Assistance of Counsel re Prosecutorial Misconduct

13

Petitioner stresses the severity of the prosecutor’s misconduct here. In addition to making

14

jurors think that whether murder was a natural and probable consequence of fighting was not a

15

determination for them to make, the prosecutor’s comments made irrelevant the fact that there

16

was no evidence petitioner knew anyone had a gun. This court agrees. There is no question the

17

prosecutor’s argument was improper. The questions are whether counsel’s conduct was

18

unreasonable and whether his failure to object caused petitioner prejudice.

19

It was not unreasonable for the Court of Appeal to find no reasonable probability that had

20

the prosecutor’s comments been cut off and an instruction immediately given to disregard them,

21

the result of the proceedings would have been different. As the Court of Appeal noted in Montes,

22

it would be reasonable to think escalated violence, including murder, was a natural and probable

23

consequence of a gang fight. 74 Cal. App. 4th at 1056. Significantly, the Court of Appeal in that

24

case found the fact that the defendant was unaware the perpetrator had a gun was not decisive.

25

The court found, “Given the great potential for escalating violence during gang confrontations, it

26

is immaterial whether [defendant] Montes specifically knew [perpetrator] Cuevas had a gun.” Id.

27

The jury heard the gang expert testify about the significant and serious gang violence in

28

Sacramento. He testified that weapons had become more prevalent in Hispanic gangs in
36

1

Sacramento. (6 RT 1625-26.) Jurors could reasonably have found, without the prosecutor’s

2

comments, that based on the evidence before them, murder was a foreseeable and probable

3

consequence of gang members heading to a rival gang member’s house for a fight.

4

Further, the prosecutor’s comments were neutralized both by trial counsel’s argument,

5

described above by the Court of Appeal, and by the court’s instructions to the jury. Jurors were

6

told that to find petitioner guilty of murder, the prosecution had to prove: (1) petitioner was

7

guilty of aiding and abetting a fight or challenge to a fight; (2) during the fight or challenge to a

8

fight, a co-participant committed the crime of murder; and (3) “[u]nder all of the circumstances a

9

reasonable person in the defendant’s position would have known that the commission of the

10

murder was a natural and probably consequence of the commission of the fighting or challenging

11

to fight.” (7 RT 1906.)

12

The court defined a “natural and probable consequence” as follows:

13

. . . A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual
intervenes.

14
15

In deciding whether a consequence is natural and probable,
consider all of the circumstances established by the evidence. If the
murder was committed for a reason independent to the common
plan to commit the fighting or challenging to fight, then the
commission of murder was not a natural and probable consequence
of fighting or challenging to fight.

16
17
18
19
20

(7 RT 1906-1907.)
The trial court also told the jurors that to determine the facts of this case, they

21

must use only the evidence that was presented in this courtroom.
Evidence is the sworn testimony of the witnesses, the exhibits
admitted into evidence and anything else I told you to consider as
evidence. Nothing that the attorneys say is evidence. In their
opening statements and closing arguments, the attorneys discussed
the case but their remarks are not evidence. Their questions are not
evidence. Only the witness’s answers are evidence.

22
23
24
25
26

(7 RT 1890.)
On this record, the Court of Appeal’s holding that counsel’s failure to object at trial did

27

not cause petitioner prejudice was not contrary to, or an unreasonable application of, clearly

28

established federal law.
37

1

IV.

2

Petitioner repeats here the argument made in his appeal that the jury instruction on the natural

Instructional Error

3

and probable consequences doctrine was improper. (Pet. (ECF No. 1 at 16-17, 79-92).)

4

Petitioner was successful on this issue on appeal and his murder conviction was reduced to

5

second degree. See Armstrong, 2011 WL 3806154, at *11-14. Therefore, petitioner’s claim is

6

moot. To the extent petitioner is arguing that the error in the instructions justified a new trial, not

7

just a reduction in the convicted offense, petitioner did not raise that issue in his petition for

8

review in the California Supreme Court. (See Traverse (ECF No. 21-1 at 23).) Therefore, it is

9

unexhausted and this court may not consider it. See 28 U.S.C. § 2254 (b)(1).

10

V.

11

Petitioner’s final claim is that the cumulative effect of the errors at trial violated his due

12

process rights. (Pet. (ECF No. 1 at 23, 92-93).) Above, the court assumes that counsel erred in

13

failing to object to the gang expert testimony and finds that the prosecutor erred in closing

14

argument. However, for the reasons described above, the combined effect of those errors did not

15

render petitioner’s trial fundamentally unfair. The errors affected different aspects of trial. The

16

first allowed testimony regarding petitioner’s intent to help Norteño gang members in their

17

criminal enterprises. The second involved the question of whether murder was a natural and

18

foreseeable consequence of the crime of fighting or challenging to fight. Therefore, the prejudice

19

analyses above covers the effects of these two errors and they did not, considered together, render

20

petitioner’s trial fundamentally unfair.

21

Cumulative Effect of Errors

CONCLUSION

22

Petitioner has failed to establish that the decision of the California Court of Appeal rejecting

23

his claims was contrary to, or an unreasonable application of, clearly established federal law or

24

was an unreasonable interpretation of the facts. See 28 U.S.C. § 2254(d). Because petitioner fails

25

to satisfy any of the requirements of § 2254(d),
IT IS HEREBY RECOMMENDED that petitioner’s petition for a writ of habeas corpus be

26
27

denied.

28

////
38

1

These findings and recommendations will be submitted to the United States District Judge

2

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

3

after being served with these findings and recommendations, any party may file written

4

objections with the court and serve a copy on all parties. The document should be captioned

5

“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

6

objections shall be filed and served within seven days after service of the objections. The parties

7

are advised that failure to file objections within the specified time may result in waiver of the

8

right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the

9

objections, the party may address whether a certificate of appealability should issue in the event

10

an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the

11

district court must issue or deny a certificate of appealability when it enters a final order adverse

12

to the applicant).

13

Dated: July 6, 2017

14
15
16
17
18
19
20
21

DLB:9
DLB1/prisoner-habeas/arms1090.fr

22
23
24
25
26
27
28
39