Turner v. Baughman

Filing 15

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William H. Orrick on 11/22/2017. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 11/22/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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GIL EDWARD TURNER,
Petitioner,

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Case No. 16-cv-06495-WHO (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
DAVID BAUGHMAN,
Respondent.

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INTRODUCTION

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As grounds for federal habeas relief, petitioner Gil Edward Turner alleges that

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(1) the trial court violated his right to due process when it denied his motion to dismiss the

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murder charge after the prosecution rested; (2) defense counsel rendered ineffective

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assistance; and (3) there was cumulative error. None of these claims has merit. The

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petition is DENIED.

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BACKGROUND
In 2011, Turner shot and killed Tony Reynolds in front of Turner’s house while in

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view of Terry Amons, Turner’s stepfather, and Leland Harrison, their neighbor in the

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Parchester Village neighborhood in Richmond. (Ans., Dkt. No. 13 (State Appellate

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Opinion, People v. Turner, No. A141608, 2015 WL 5725013 (Cal. Ct. App. Sept. 30,

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2015) (unpublished)) at 231.)1 Harrison testified that just after he had seen and said hello

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to Reynolds, he saw a person (later identified as Turner) “with a hood on c[o]me out of the

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driveway and just sho[o]t him.” (Id., Dkt. No. 13-1 at 88.) Harrison reported the shooting

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and told the police that Turner blamed Reynolds for the death of Turner’s stepbrother,

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Michael Amons, seven years prior. (Id., Dkt. No. 13 at 231-232.)
Turner testified at trial that he had used cocaine and marijuana on the night before,

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and had used cocaine on the day of, the shooting. (Id., Dkt. No. 13-5 at 8.) He testified

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that on the day of the killing a friend told him that Reynolds was leaving the neighborhood

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and advised Turner, “Don’t trip.” (Id. at 10.) Turner also testified that though he was
armed when he approached Reynolds (Turner always carries a gun for protection), he did

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Northern District of California

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not intend to shoot him. (Id. at 10.) He drew his gun when Reynolds moved in a way that

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alarmed Turner. (Id. at 13.) The gun went off, he averred, during the subsequent struggle,

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during which Reynolds grabbed the hand in which Turner was holding the gun. (Id. at 13-

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On cross-examination, Turner was asked about a prior felony conviction for

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robbery. When arrested for that crime, Turner told police that there had been a struggle for

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the gun and that the robbery victim had gotten the gun away from him. (Id. at 18-19.)

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Those were lies, he admitted at the Reynolds trial. (Id. at 19.)

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Rap lyrics handwritten by Turner were found in his cell and presented at trial. The

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lyrics referred to the Parchester neighborhood, drive-by shootings, showed support for “an

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eye for an eye” justice, and declared hopes that his stepbrother Michael would rest in

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peace. (Ans., Dkt. No. 13 at 233.)

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A Contra Costa County jury convicted Turner of first degree murder and found true

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two enhancement allegations. In consequence, Turner was sentenced to 75 years to life in

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state prison. (Id. at 235.) His efforts to overturn his conviction in state court were

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unsuccessful. This federal habeas petition followed.

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The Court cites to the page numbers generated by the electronic filing system.
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STANDARD OF REVIEW
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
this Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). The petition may not be granted with respect to any claim that was adjudicated

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on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted

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in a decision that was contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the United States; or

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Northern District of California

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(2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the] Court has on a set of

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materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13

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(2000).

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

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writ if the state court identifies the correct governing legal principle from [the] Court’s

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decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

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413. “[A] federal habeas court may not issue the writ simply because that court concludes

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in its independent judgment that the relevant state court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application”

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inquiry should ask whether the state court’s application of clearly established federal law

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was “objectively unreasonable.” Id. at 409.

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DISCUSSION
I.

Denial of Acquittal Motion
At the close of the prosecution’s case, Turner moved for a judgment of acquittal on

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the first degree murder charge on grounds that there was insufficient evidence of

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premeditation or planning. (Ans., Dkt. No. 13 at 235.) The trial court denied the motion

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because the jury could reasonably conclude “there was premeditation and deliberation by

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the . . . way in which the crime was committed, the manner in which the victim was

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approached, the fact that the victim was unarmed . . . and that it appeared that he was in a

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sense ambushed.” (Id.) Turner alleges that the trial court violated his right to due process

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Northern District of California

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when it denied his motion.
This claim was rejected on appeal. The state appellate court found sufficient

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evidence premeditation and deliberation in the record: Turner blamed Reynolds for the

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death of his stepbrother; Turner’s girlfriend testified that Reynolds’s name came up every

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time Michael’s death was discussed; and Harrison, a longtime resident of Parchester

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Village, “watched Turner walk within a few feet of Reynolds, and shoot him four times.”

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(Ans., Dkt. No. 13 at 237.)

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I will construe this claim as a challenge to the sufficiency of the evidence.

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When reviewing a state court’s conviction for sufficiency of the evidence, a federal court

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must determine whether, “after viewing the evidence in the light most favorable to the

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

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beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no

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rational trier of fact could have found proof of guilt beyond a reasonable doubt may the

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writ be granted. Id. at 324. “[T]he only question under Jackson is whether [the jury’s]

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finding was so insupportable as to fall below the threshold of bare rationality.” Coleman v.

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Johnson, 566 U.S. 650, 656 (2012). In addition to this highly deferential standard, a

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federal court must accord “considerable deference” to a state court’s determination that

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there was sufficient evidence under Jackson. Id.

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In California, first degree murder is the premeditated and deliberate unlawful killing

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of another with malice aforethought. Cal. Penal Code §§ 187 and 189. A premeditated

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killing under California law is a “killing [that] was the result of preexisting reflection and

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weighing of considerations rather than mere unconsidered or rash impulse.” People v.

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Prince, 40 Cal. 4th 1179, 1253 (2007). Planning activity, motive and the manner of the

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killing are significant, though not the exclusive, factors to consider when determining

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whether the killing was a result of preexisting reflection. Id.
Under these legal principles, Turner’s claim cannot succeed. The state appellate

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court reasonably determined that a rational trier of fact could have found the elements of
premeditation and deliberation true beyond a reasonable doubt. The record shows that the

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Northern District of California

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prosecution presented evidence that Turner had a gun with him when he approached

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Reynolds; he had a long-standing motive to kill Reynolds; his family and friend had urged

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him to stay calm even though Reynolds was nearby; and Harrison testified that he saw

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Turner, hooded, walk up to Reynolds, shoot him more or less immediately, and then

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behave in a cool and collected manner, rather than a person aggravated by a sudden

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quarrel.
On this record, neither the trial court’s denial of the acquittal motion (nor the jury’s

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verdict) was so insupportable as to fall below the bare threshold of rationality. Coleman,

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556 U.S. at 656. The state appellate court’s rejection of this claim was reasonable and is

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entitled to AEDPA deference. This claim is DENIED.

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II.

Assistance of Counsel

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Turner alleges that his defense counsel rendered ineffective assistance by (A)

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calling a witness who was detrimental to his defense; (B) failing to object to the admission

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of rap lyrics; and (C) failing to object to evidence of gang affiliation.

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To make a federal claim of ineffectiveness of counsel, the petitioner must show that

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the counsel’s performance fell below an objective standard of reasonableness and that, but

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for that deficiency, the outcome would have been different. Strickland v. Washington, 466

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U.S. 668, 687-88 (1984). The relevant analysis is whether there is any reasonable
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argument made to show that counsel satisfied the Strickland standard. Harrington v.

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Richter, 562 U.S. 86, 105 (2011). In the review, the court must be highly deferential and

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the presumption is that counsel had sound trial strategy. Strickland, 466 U.S. at 689. A

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tactical decision, even if in hindsight the decision was not the best tactical choice, is not

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considered ineffectiveness of counsel. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.

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1984). An attorney’s tactical decision to call a witness that has disparaging information

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about the client is not ineffective counsel, as long as the benefit could be a tactical reason

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that outweighs the danger of calling the witness. Soto v. Ryan, 760 F.3d 947, 979-80 (9th

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Cir. 2014).
A.

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Northern District of California

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Turner contends that trial counsel rendered ineffective assistance by calling Amons

Calling a Detrimental Witness

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to testify. Not only did Amons’s testimony provide evidence of premeditation, thereby

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aiding the prosecution, but defense counsel compounded his mistake by failing to request a

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jury instruction (CALCRIM No. 358) that directs the jury to treat out-of-court statements

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with caution. (Pet., Dkt. No. 1 at 5 and 11.)

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i.

Calling Amons to Testify

Defense counsel called Amons to the stand. He testified that on the afternoon of the

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shooting, he was in his front yard with Turner. Reynolds walked up to them, greeted

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Amons, and said to Turner, “Oh, hey, Little Killer,” which was Turner’s nickname. Turner

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shouted “That was my brother,” and fired his gun twice before Reynolds attempted to grab

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the gun. A struggle ensued during which two more shots were fired into Reynolds. (Ans.,

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Dkt. No. 13 at 233-234.)

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Turner contends that “That was my brother” provided premeditation evidence in

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favor of the prosecution. Counsel’s calling Amons to testify therefore constituted

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ineffective assistance, according to petitioner. (Pet., Dkt. No. 1 at 5.)

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Amons was called, it appears, to bolster Turner’s self-defense claim, that his fear of

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Reynolds was reasonable. (Ans., Dkt No. 13 at 347.)2 Counsel apparently felt that the

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benefits of such testimony outweighed the risk that such testimony could also be evidence

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of a “revenge motive.” (Id.) Amons also testified that before shooting Reynolds, Turner

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seemed like he had taken “zombie pills” because he was walking “with his head down . . .

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he was going straight ahead.” (Id. at 177.)

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This claim was not raised on direct appeal, but rather only on collateral review.

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When presented with a state court decision that is unaccompanied by a rationale for its

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conclusions, a federal court must conduct an independent review of the record to determine

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whether the state court decision is objectively unreasonable. See Delgado v. Lewis, 223
F.3d 976, 982 (9th Cir. 2000). This review is not de novo. “[W]here a state court’s

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Northern District of California

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decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be

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met by showing there was no reasonable basis for the state court to deny relief.” Richter,

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562 U.S. at 98.
Habeas relief is not warranted. The evidence of Turner’s guilt, and that the

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homicide was the result of premeditation and deliberation, was so strong that even if

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counsel’s performance was deficient, there was no prejudice. Turner had a motive to kill

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Reynolds, whom he blamed for the murder of his stepbrother, Michael Amons. His

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girlfriend said Reynolds’s name came up every time Michael’s death was discussed. He

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testified that on the day of the killing a friend told him that Reynolds was leaving and

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advised Turner “Don’t trip.” Harrison, who knew both men and had lived in Parchester

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Village for 64 years, saw Turner walk up to Reynolds and shoot him at close range, after

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which Turner calmly looked at Harrison and walked into his house. Harrison testified that

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Turner blamed Reynolds for Michael’s death. And after the killing, Turner “acted

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normally,” and he wrote rap lyrics that mentioned Michael Amons and referred to Turner’s

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belief in “eye for an eye” justice. (Ans., Dkt. No. 13 at 234, 237, and 238.)

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Trial counsel’s stated reasons come to the Court through a declaration by habeas counsel
(Solomon Wallack) who spoke to trial counsel (Brooks Osborne) about his reasons for
calling Amons to testify. (Ans., Dkt. No. 13 at 347.)
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Upon an independent review of the record, I conclude that the state court’s rejection

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of this claim was not objectively unreasonable. The state court’s decision is entitled to

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AEDPA deference and this claim is DENIED.

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ii.

Failing to Ask for Jury Instruction

Turner also claims that defense counsel should have asked for a cautionary jury

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instruction regarding Amons’s testimony. Counsel should have asked for CALCRIM No.

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358 (“Evidence of Defendant’s Statements”), which “instructs the jury to ‘[c]onsider with

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caution’ any unrecorded statement made by the defendant tending to show his or her

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guilt.” (Ans., Dkt. No. 13 at 238.)

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This claim was rejected on appeal. Any error was harmless. Turner, who testified

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Northern District of California

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at trial, did not deny making the statements Amons testified Turner made; there was “no

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‘conflict in the evidence about the exact words used, their meaning, or whether the

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admissions were repeated accurately’;” and, other instructions adequately informed the

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jury how to evaluate the credibility of witness statements. Also, there was no prejudice.

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The evidence of guilt was strong, as detailed above. (Id. at 239-240.)

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Habeas relief is not warranted. The state appellate court reasonably determined that

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the lack of such an instruction did not deny Turner due process. He admitted to making

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the statements. Other instructions cautioned the jury to take care in assessing credibility.

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The state court’s rejection of this claim is entitled to AEDPA deference. This claim is

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DENIED.

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B.

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Turner alleges that counsel rendered ineffective assistance when he did not object to

Rap Lyrics

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the admission of rap lyrics Turner wrote. (Pet., Dkt. No. 1 at 5.) The lyrics were

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prejudicial, he contends, because they discussed crimes, glorified violence, and spoke

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approvingly about a gang lifestyle and gang activities. He believes that they unjustly led

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the jury to assume that he had criminal inclinations. (Id. at 28-29.) Had counsel objected,

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the lyrics would have been excluded.

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This claim was rejected on appeal in a summary fashion. “Because it is possible
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Turner’s trial counsel had a rational tactical ground for not objecting to the rap lyrics,

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Turner’s claim of ineffective assistance of counsel fails.” (Ans., Dkt. No. 13 at 244.)

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United States District Court
Northern District of California

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The state appellate court excerpted the lyrics as follows:
It’s a lot a niggas in here that ain’t solid at all/Speck behind yo back my
nigga dat ain’t gangsta at all/On da real, dats something I expeck from a
broad/whoever raised u, I swer they did a taireable job/cause u’s a nurd and
nall you ain’t wit da shit/u be frontin’, you ain’t never sent a bitch/Look in
his eyes he wasn’t bulid for this shit/the stories is lies, fiction, urben books
can’t ova look da truth I’m wit da shit/on da real, I ain’t tryna bring back da
rich/just Parchester dat’ s wat I do it for/Animal on da real. I love you
bro/Yhr In da billin and we shine’n Bro/Tay goin crazy Dip he da rowist
Tho/Swich up never I really love all my bros and I’m rock’n untill the day
the lord calls me home[.]
....
It ain’t to many niggas like me. I’m just keep’n it real/I hear niggas talk’n
but niggas aint squeez’n they steal/I’m locked up and niggas still aint
squeez’n for gil/got dame, I though niggas was rock’n fo real/Wat
happened to them niggas they still on the shelf/they old school trophys
collet’n dust and nothing else/I guess it’s really true wat they say, outa site
outa mind/that aint how I was raised, I was raised an eye for an eye/Slide,
you know I do dat/Swich up, fuck nall ain’t no way I’m a do dat/I don’t
fuck wit master splenters them niggas IS surer rats/and you can ask gong,
he’a tell u that’s a fact I still rock wit a gleeko, yea I’m from da gAnimal
rest in peace bro I’m play’n for keeps/I’m really livin this shit that you
niggas rappin about/Just check my street crag I’m solid wit out a doubt.
(Ans., Dkt. No. 13 at 232-233.)
The meaning of certain lyrics was explained at trial by a police officer from

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Richmond. “Animal” was Michael Amons’s nickname. (Id. at 231.) “[S]queez’n they

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steel” means “to fire your gun,” and “gleeko” is slang for a Glock pistol. (Id. at 233.) “Da

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rich” refers to Richmond, and “Parchester,” of course, to Parchester Village, where

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Reynolds was shot. When Turner was asked on cross-examination what certain words in

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the lyrics meant, he responded, “I just write” or “I don’t know.” (Ans., Dkt. No. 13-5 at

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35-38.)

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Habeas relief is not warranted. Any objection would likely have been denied. The
lyrics were of great evidentiary value, highly relevant, and were something close to an
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uncoerced confession. They were undoubtedly Turner’s work; referred to his belief in

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retributive justice (“I was raised an eye for an eye”); fondly mentioned his stepbrother

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(“gAnimal rest in peace bro”); spoke of guns and Parchester; and contained Turner’s

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admission that his lifestyle was no mere pose (“I’m play’n for keeps/I’m really livin this

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shit that you niggas rappin about/Just check my street crag I’m solid wit out a doubt.”).

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Counsel likely made no objection because of the obviously high probative value of the

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evidence. It is both reasonable and not prejudicial for defense counsel to forgo a meritless

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objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). Also, the lyrics

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confirmed facts already known to the jury through the testimony of witnesses.

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Furthermore, even if counsel’s performance was deficient, there was no prejudice.

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Northern District of California

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Eyewitnesses testified about the shooting and the tense history between Turner and

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Reynolds.

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The state court’s rejection of this claim was reasonable and is therefore entitled to
AEDPA deference. This claim is DENIED.

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C.

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Turner contends that trial counsel provided ineffective assistance in failing to object

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when the prosecutor introduced evidence that he had associated with gang members. Such

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evidence was prejudicial since the shooting had nothing to do with gangs and there was no

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gang enhancement charge brought against Turner. (Pet., Dkt. No. 1 at 23.)

Gang Affiliation Evidence

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While cross-examining Amons, the prosecutor asked if Turner recently had

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associated with gang members in the community. (Ans., Dkt. No. 13 at 240-241.)

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Defense counsel objected on the grounds of relevance and foundation, but did not object

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under Evidence Code section 352 (that the evidence was more prejudicial than probative).

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(Id.) The trial court overruled the objection when the prosecutor explained that the

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question went to Officer Purcell’s opinion that Turner was not a gang member. (Id. at

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240.) Amons answered that Turner had been “hanging around” known gang members

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around the time of the shooting. (Id. at 241.)

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This claim was rejected on appeal. Even if the trial court erred by allowing the

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testimony regarding gang affiliation, the error was harmless because the focus of the trial

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was the shooting, not gang affiliation, and the evidence of his guilt was strong. (Id. at

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242.)
Habeas relief is not warranted. First, a petitioner’s due process rights concerning

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the admission of propensity or character evidence is not clearly established for purposes of

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review under AEDPA, the Supreme Court having reserved this issue as an “open

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question.” Alberni v. McDaniel, 458 F.3d 860, 866–67 (9th Cir. 2006). Second, even if

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the evidence was prejudicial, the Supreme Court “has not yet made a clear ruling that
admission of irrelevant or overtly prejudicial evidence constitutes a due process violation

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Northern District of California

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sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101

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(9th Cir. 2009). Finally, even if relief is not barred by Alberni and Holley, no prejudice

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has been shown. The gang evidence was a small matter in light of the very strong

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eyewitness testimony that unequivocally established that Turner approached Reynolds and

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shot him.
The state court’s rejection of this claim was reasonable and is entitled to AEDPA

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deference. This claim is DENIED.

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III.

Cumulative Error

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Turner claims that even if the errors individually do not justify relief, the

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cumulative effect of all errors resulted in a fundamentally unfair trial. This claim was

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rejected on appeal. (Ans., Dkt. No. 13 at 244.)

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In some cases, although no single trial error is sufficiently prejudicial to warrant

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reversal, the cumulative effect of several errors may still prejudice a defendant so much

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that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th

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Cir. 2003). Where there is no single constitutional error existing, nothing can accumulate

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to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th

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Cir. 2002) (overruled on other grounds).

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Habeas relief is not warranted because Turner has not shown any errors. There can

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be no cumulative error. The state court’s rejection of Turner’s claim was reasonable and is

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entitled to AEDPA deference. This claim is DENIED.

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CONCLUSION

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The state court’s adjudication of Turner’s claims did not result in decisions that

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were contrary to, or involved an unreasonable application of, clearly established federal

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law, nor did they result in decisions that were based on an unreasonable determination of

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the facts in light of the evidence presented in the state court proceeding. Accordingly, the

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petition is DENIED.

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A certificate of appealability will not issue. Reasonable jurists would not “find the

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Northern District of California

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Turner may seek a certificate of appealability from

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the Ninth Circuit.

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The Clerk shall enter judgment in favor of respondent and close the file.

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IT IS SO ORDERED.

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Dated: November 22, 2017

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William H. Orrick
United States District Judge

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