Opinion
21-1194-JGB (E)
03-25-2022
VICTOR GASTELUM, Petitioner, v. THERESA CISNEROS, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to 2 8 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 16, 2021. Petitioner filed a First Amended Petition On October 12, 2021. Respondent filed an Answer on February 1, 2022. Petitioner filed a Traverse on March 14, 2022.
BACKGROUND
A jury found Petitioner guilty of: (1) the first degree murder of Terrance Rodgers in violation of California Penal Code section 187(a); and (2) the wilful, deliberate and premeditated attempted murder of Jerome Willis in violation of California Penal Code sections 187(a) and 664 (Reporter's Transcript ["R.T."] 878-79; Clerk's Transcript ["C.T."] 646, 648, 651). The jury found true the special circumstance allegation that Petitioner intentionally killed Rodgers while lying-in-wait within the meaning of California Penal Code section 190.2(a)(15) (R.T. 879; C.T. 646, 650). The jury also found true the allegations that, in the commission of both the murder and the attempted murder, Petitioner participated as a principal knowing that another principal in the offense was armed with a handgun within the meaning of California Penal Code section 12022(a)(1) (R.T. 879-80; C.T. 646, 649, 652).
Petitioner admitted suffering a prior conviction for which Petitioner had served a prison term within the meaning of California Penal Code section 667.5(b) (R.T. 883-84; see C.T. 455). The court sentenced Petitioner to consecutive indeterminate terms of life imprisonment without the possibility of parole (on the murder count) and life imprisonment with the possibility of parole (on the attempted murder count), plus three years on the prior prison term enhancement (R.T. 889-91; C.T. 665-69).
The California Court of Appeal affirmed (Respondent's Lodgment 4). Petitioner filed a petition for review in the California Supreme Court, arguing inter alia, that the Supreme Court should remand the case to the Court of Appeal to enable Petitioner to argue that the court should strike the prior prison term enhancement in light of the intervening enactment of California Senate Bill 136 (Respondent's Lodgment 5). On January 22, 2020, the California Supreme Court granted Petitioner's petition for review and transferred the case to the Court of Appeal with directions to vacate the appellate decision and to reconsider the case in light of Senate Bill 136 (Respondent's Lodgment 6).
Senate Bill 136, effective January 1, 2020, amended California Penal Code section 667.5(b) to narrow the sentence enhancement authorized by that section to defendants who had served a prior prison term "for a sexually violent offense. . . ." See Cal. Stats. 2019, c. 590 (S.B. 136), § 1, eff. Jan. 1, 2020.
On remand, the Court of Appeal modified the judgment to strike the prior prison term enhancement but otherwise affirmed. See People v. Gastelum, 45 Cal.App. 5th 757, 259 Cal.Rptr.3d 44 (2020). The California Supreme Court summarily denied Petitioner's subsequent petition for review (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
I. Prosecution Case
The prosecution introduced evidence to show that, in the late night of June 24, 2016 or the early morning of June 25, 2016: (1) Petitioner and his cousin, Jacob Gamboa, located Petitioner's sometime friend Jerome Willis at a gas station; (2) accompanying Willis at the time were two other men, Terrance Rogers and Lafayette Medlock; (3) Petitioner and Gamboa, who was armed with a gun, approached the men at the gas station by a surreptitious route; (4) Gamboa fired multiple shots, killing Rodgers and wounding Willis and Medlock; and (5) after the shooting, Petitioner and Gamboa made a video celebrating the shooting and showing off the gun.
Although the prosecution originally charged Petitioner and Gamboa together, the court severed Petitioner's case from Gamboa's case prior to trial (C.T. 323-28, 452).
A. Testimony of Jerome Willis ("Papadoo")
Jerome Willis testified as follows:
Willis' nickname was "Papadoo" (R.T. 325). Willis was friendly with Petitioner, whom Willis knew from "the streets" (R.T. 293-95, 340). However, Willis did not know Petitioner's cousin, Jacob Gamboa (R.T. 302-03).
Shortly before the shooting, Willis and Petitioner were involved in a fight at the Cavalier Liquor store (R.T. 2 95, 347-51). The fight concerned a mutual friend, "Angel" (R.T. 295, 299). Willis was upset with Petitioner because Willis believed that Petitioner had beat Angel up a couple of times and that Petitioner's cousin had choked Angel (R.T. 2 96-97, 341, 350, 352). After Petitioner said "fuck that bitch," Willis punched Petitioner multiple times, but the fight lasted only a couple of seconds (R.T. 299, 350-52). Petitioner dropped some belongings, including a speaker (R.T. 300). Someone gave the speaker to Willis (R.T. 300-01, 355). Willis planned to return the speaker to Petitioner (R.T. 356).
Willis left the store, and, later that night, went to the USA Gas gas station where he met friends Rodgers and Medlock (R.T. 311-12). Willis was wearing a backpack, but the backpack contained no weapons (R.T. 338, 378-79). The men hung out, conversing outside the gas station building (R.T. 315-16, 322-23, 362).
Although Willis identified one of these friends as Lafayette, other evidence showed Lafayette's last name was Medlock (see R.T. 400). The prosecution initially charged Petitioner with the attempted murder of Medlock (see C.T. 326, 454), but the prosecution dismissed that count prior to trial (R.T. 115-16; C.T. 501).
When Willis heard someone call out "Papadoo," he turned toward the person who had called out (R.T. 326, 371). Prior to that, Willis had not heard anyone approaching (R.T. 326). When Willis turned, he saw Petitioner and someone whom Willis did not recognize (R.T. 32 8, 3 73). These two men were "pretty close together" (R.T. 3 95). Thinking there would be a fight, Willis took a step or two toward the two men, but then saw that both men had guns which were pointed up (R.T. 328, 330, 377, 383, 389). Willis saw a gun pointed at him or in his direction (R.T. 383, 394). Willis took off running and heard the guns go off (R.T. 329, 331-32) .
The parties stipulated that the Department of Justice had examined the casings found at the scene and determined and that "only one weapon was fired" (R.T. 497) .
Shot in the left buttock, Willis ran to a nearby restaurant (R.T. 329, 334-335, 385). Paramedics arrived, and Willis was transported to the hospital (R.T. 3 86). Willis told Detective Brandt that he could not identify the two men, but he thought they were Hispanic (R.T. 512).
B. Testimony of Jaime Cruz
Jaime Cruz testified as follows:
Cruz and Petitioner had had an intimate relationship, and Cruz loved Petitioner as a friend (R.T. 200, 203-04). On June 26, 2016, Petitioner told Cruz that a "couple guys" had jumped Petitioner (R.T. 202-03). Petitioner told Cruz not to worry about it because "we took care of those [n---as]" (R.T. 202-03). Petitioner made this statement in a "joking" manner" and was "laughing about it the whole time" (R.T. 2 06).
C. Testimony of Michelle Clark
Michelle Clark testified as follows:
Clark was a friend of Rodgers and Medlock, and had met Willis on the night of the incident (R.T. 399-400). Sometime close to midnight on that night, Clark bought a lottery ticket at the USA gas station and then walked over to say hello to Rodgers, Medlock and Willis (R.T. 401-02). As Clark started walking home, she saw two Mexican men in the parking lot between the gas station and the Savers store (R.T. 404-08, 421-22, 426). These men were approaching Clark's friends (R.T. 427). The two Mexican men were side by side, close together (R.T. 408, 410). Clark kept on walking (R.T. 410).
Clark then heard gunfire, looked back and saw a gun (R.T. 410-11, 429). Clark did not know who was holding the gun because the two men were so close together, approximately a foot apart (R.T. 411-12, 430-31). Clark saw the shooter shooting the gun (R.T. 412). The victims were approximately four feet away from the shooter (R.T. 416). Clark ran inside the gas station building (R.T. 412). The two men went back the way they had come, behind the Savers store (R.T. 412). Medlock asked for water, appeared to be in pain, and was "holding his behind" (R.T. 416-17). Clark never saw Willis, Rodgers or Medlock walk toward the two Mexican men (R.T. 417) .
D. The Cellphone Video
A cellphone contained a video of Petitioner and Gamboa bearing a date stamp of June 25, 2016, and a beginning time stamp of 12:52 a.m. (R.T. 434-37). The video was played for the jury (R.T. 436). The video contained the following:
GASTELUM: Chillin right here. Urn, you got the pipe, fool?
GAMBOA: Yeah.
GASTELUM: This video is for -- fuck Papa Doo and all the [n----s. ...
...
GASTELUM: That shit was sick. That shit was just. ..."
GAMBOA: That shit (unintelligible).
GASTELUM: That shit was (unintelligible).
GAMBOA: (Unintelligible) that shit - there was not - not a better night than this. I - I got that fool. The same day that - the same day that these fools tried to come and start some shit, is the same these fools got served. . . . When - when I fucking - I told you to hit them up and I find out if it was him, It was like -they were right here. Like right here. Right here and shit. Then you "Papadoc [sic]?" And that fool - that fool was like, "Yeah." And the he - he stepped off the hill and like took off his jacket and shit. I was
like, "Oh, dude, no, no, no. Like [n---a] we playin darts." All right that's cool. . . .
GAMBOA: ... I got that fool. I fucking got that fucking [n---er]. Those fools were screaming fool. . . .
GASTELUM: Yeah, I know and that's what P asked him in the beginning, "Hey [n ___ a], you know how to dance?"
GAMBOA: I didn't even bang on him. I didn't say no hood, nothing. It was just on some family shit. This on personal family shit. It was Papa Doc [sic] . . . yeah. Draaaaaaa bitch. And I don't know who that other fool was but he got straight too fool. That fool dropped by the Red Box. Ahhhhhhh.
GASTELUM: All three of them.
GAMBOA: That shit was (unintelligible) fool. He ran - he ran away from me then he ran back to me. That shit was burning him fool. He was like, "Oh God." Then he ran away and ran back.
WOMAN: Are you recording this:
GASTELUM: Yes.
GAMBOA: Yeah.
GASTELUM: He told me to.
GAMBOA: That's the thing.
GASTELUM: I wanted to record it but I didn't have my phone.
(CROSSTALK)
GAMBOA: ... I was so excited - I was so exited I forgot to record it man, I forgot to record it.
WOMAN: Why do you want to record something like that?
GAMBOA: Because I want - I want to make it a movie. WOMAN: Oh.
GAMBOA: Fuck fool that shit would have been gangster to record that shit.
GAMBOA: We did good, right?
GASTELUM: Huh?
GAMBOA: Where the car was parked. The car was parked far away, huh?
GASTELUM: Yeah, far away.
GAMBOA: . . . Yeah, we were far. Like we found - we were running through bushes, through backyards, fences, huh?
GASTELUM: So when (unintelligible) caught like (unintelligible) all that.
GAMBOA: Oh, all at Best Buy. All at Best Buy. All of Office Depot. Right - it was right in the front parking lot on [sic] USA Gas Station, Office Depot, Best Buy, right there, dropped that [n---er] right there. Blah.((CROSSTALK))
GAMBOA: ... My feet when that fool was hit - when he hit -when he hit, that's when I was on him, I'm like doom, doom, doom. And then that's when I started getting the rest of him. . . .
GASTELUM: He paid for a [n---er's] mistakes.
GASTELUM: Yeah. That extra fool that was there, was just had - got it for the fuck of it (unintelligible).GASTELUM: Yeah.
GAMBOA: . . . Hey those fools got served. Hey that shit was gangster as fuck.
GASTELUM: Those fools got smashed (unintelligible).
GAMBOA: Yeah, those fools got scraped. Those fools were like -those fools were those fucking 'you're a jerk, you're a jerk' type of dudes. They all had skinny jeans (unintelligible) tapers and shit. Skinny - like backpack, visor, beach cruiser.
GASTELUM: Those are the ones.
GAMBOA: He had a letterman jacket on. That other fool dropped. That fool - that fool just dropped. Boy that fool - he didn't move or nothing, he just got up and was like "Hey?" He was like, "Ah, shit." That's what he said. And you like, "Hey you Papa Do [sic]." And the other one said, "Ah, shit." And they started taking off backpacks like they were gonna get down. Those fools didn't run. That's perfect timing, see?
GASTELUM: Fuck it (unintelligible) dog.
GAMBOA: What my gut says though - what my - what I - my heart says it's okay.
GASTELUM: Hm.
GAMBOA: And it was hot, huh, fool? it was Juras out huh?
GASTELUM: Yeah.
GAMBOA: (Unintelligible), you were right. I shouldn't have went Anna [sic], but we didn't see - like they didn't - they didn't fucking - they were - Juras aren't there.
Like they didn't go. By the time - all that running we did, jumping over fences, getting . . .
GASTELUM: They should have been there.
GAMBOA: They should have been there. And we - and I started the car . . .
GASTELUM: That's how close that police station is, they should have . . .
GAMBOA: I - I started the car. I turned around in the neighborhood. I went back around.
GAMBOA: I walked - I walked back around.(CROSSTALK)
GAMBOA: I walked back around.
WOMAN: ... Somewhere else.
GAMBOA: . . . They were out there on their phone. And they were just like - they were over the bodies. Everybody was - every single three [sic] bodies were just laid out. But I don't think Papa Do [sic] died.
GASTELUM: You don't know what?
GAMBOA: Papa Do [sic] .
GAMBOA: I know I hit every single one of them. Fuck yeah, they all got hit. That fool screamed like a little bitch.
GASTELUM: Oh, yeah.
GAMBOA: That fool screamed like a straight hyena. I just got mad, because my cousin, uh, he took my cousin's speaker for my birthday.
GASTELUM: And other than that he - he could - he could have said square up with me and shit. (Unintelligible).(C.T. 530-36).
In closing argument, the prosecutor stated, without objection, that the video panned down to show a gun at this point (R.T. 781, 783) .
Although the transcript indicates that Petitioner made the "for the fuck of it" remark, Petitioner's counsel indicated in closing that Gamboa had been the speaker (R.T. 833-34). The versions of the video transcript introduced at the preliminary hearing and attached to Petitioner's motion to dismiss the special circumstance allegation reflect that Gamboa made the "got it for the fuck of it" statement (C.T. 17, 388).
Petitioner testified that "jurah" means a "cop." (R.T. 685) .
E. Other Prosecution Evidence
The prosecution also introduced evidence to show the following:
The first police officer at the scene found Medlock lying on the ground bleeding (R.T. 141-44). Medlock said he had been shot, and he pointed toward his buttocks (R.T. 143-44). The officer located a second victim nearby with his head in a large pool of blood (R.T. 144-46). Medical personnel at the scene later pronounced this person to be dead (R.T. 146). Police found fourteen expended 9 millimeter casings at the scene, but found no weapons (R.T. 166, 170-71). The locations of the casings indicated that the shooter was moving at the time of the shooting (R.T. 167-68) .
An autopsy showed that Rodgers had suffered gunshot wounds to his back, the back of his head, the back of his arm, and the upper neck between his ear and jaw (R.T. 262-69, 2 73). The trajectory of these wounds was back-to-front (R.T. 2 73-74). The cause of death was multiple gunshot wounds (R.T. 2 70).
The gas station was near a shopping center which contained a Savers store and a Best Buy store (R.T. 448). Police obtained surveillance videos from both stores (R.T. 449-50). Police also obtained videos from the USA Gas gas station, a nearby residence and a nearby business (R.T. 450-51) .
A video showed Gamboa's car moving past the gas station on the night of the incident, going through the driveway of a dentist's office and parking on the street where the residence with the surveillance camera was located (R.T. 456-58, 470). A video showed two people exiting the car, cutting through a business parking lot, jumping a brick wall behind a strip mall, and walking into the parking lot behind the Savers store and the Best Buy store (R.T. 458-63, 471). From the corner of the Best Buy store, one could see the area where the victims were located at the gas station (R.T. 465) .
A video showed Willis, Rodgers and Medlock at the USA Gas station (R.T. 321-23). A video showed Gamboa shooting Rodgers first, firing shots into Rodgers' head as Rodgers lay on the ground, then shooting Willis, and finally shooting Medlock (R.T. 774, 804, 832-34) .
Although this video is not in the record, and the trial testimony does not contain a clear recital of the contents of the video, both the prosecutor and defense counsel stated in closing argument that Gamboa shot Rodgers first, and the cellphone video confirms this sequence of events.
Videos showed that Petitioner and Gamboa then ran back the way they had come, entered Gamboa's car and left (R.T. 467-69, 471).
F. Parties' Stipulations
The parties stipulated that, during Petitioner's interview with Detective Brandt on June 26, 2016, Petitioner stated: (1) he had problems with Papadoo when Petitioner was homeless; (2) after punches were thrown at the Cavalier Liquor store, Petitioner told Willis to "come over here, fool" and "square up" with Petitioner; and (3) Petitioner was "mad" and "upset" because "I got hit, and especially by a black guy" (R.T. 697).
II. Defense Case
A. Petitioner's Testimony
1. Direct Examination
On direct examination, Petitioner testified as follows:
Petitioner's eyesight is "real, real bad" and he wears prescription glasses (R.T. 561-62). On June 24, 2016, Petitioner was living in a car parked in the driveway of Petitioner's cousin, Gamboa (R.T. 563-54).
Petitioner previously had lived on the streets near the USA gas station (R.T. 566). During this time, Petitioner met others who also lived on the streets, including Medlock and Rodgers (R.T. 566-67). Prior to the incident, Petitioner and Medlock had no issues, and Rodgers and Petitioner had always gotten along (R.T. 566-68). Petitioner used to see Rodgers every day, and Rodgers never did or said anything to anger Petitioner or to make Petitioner want to hurt Rodgers (R.T. 568).
Petitioner knew Angel Waltman, but the two were "just friends" (R.T. 569). Petitioner did not know Michelle Clark (R.T. 569) .
Petitioner knew Willis as "Papadoo" (R.T. 571). Petitioner's relationship with Willis was "cool, everything was cool" (R.T. 571).
The night before the shooting, Petitioner was with Jaime Cruz at a motel located behind the Best Buy store (R.T. 581-82). Petitioner left the motel at 11 a.m. the following morning and went the "back way" behind Savers and Best Buy stores to the Cavalier Liquor store, where Petitioner planned to take a break and smoke "a little weed" (R.T. 583-84). Petitioner had Gamboa's Bluetooth speaker in his backpack (R.T. 586).
As Petitioner stood outside the liquor store, Willis approached and said "Where the fuck is your cousin that beat up Angel?" (R.T. 586). Petitioner said "I don't know what the fuck you are talking about" (R.T. 587). Willis then hit Petitioner in the face (R.T. 587).
Petitioner fell, and the speaker dropped out of Petitioner's backpack (R.T. 588-89). Willis picked up the speaker and started walking away (R.T. 590). Petitioner followed Willis, telling Willis to return the speaker and saying that the speaker did not belong to Petitioner (R.T. 590). Willis said, "Fuck you. Tell your cousin to come get it himself" (R.T. 591) .
Petitioner left the liquor store and called Gamboa for a ride (R.T. 593-94). Petitioner told Gamboa what had occurred at the liquor store (R.T. 595). Petitioner was upset and sad because Willis had beat Petitioner up (R.T. 595-96). Gamboa was mad at Petitioner and Willis (R.T. 596). The two went looking for Willis to recover the speaker, but were unsuccessful and returned home (R.T. 597-98) .
That night, Gamboa woke Petitioner, saying "let's go get something to eat" (R.T. 600). Gamboa drove, and Petitioner sat in the passenger seat (R.T. 602). Petitioner was not wearing his glasses (R.T. 602). Petitioner did not give Gamboa a description of Willis, but he did tell Gamboa that Willis was Black (R.T. 601). While driving, Gamboa thought he saw "some black guys" and said "it might be Papadoo" (R.T. 600-01).
In an effort to locate Willis, Gamboa drove up the street past the USA Gas gas station and through the parking lot of a dental office (R.T. 605-06). The plan was for Petitioner to fight Willis and obtain the speaker (R.T. 608). Petitioner did not know Gamboa had a gun (R.T. 608).
As Gamboa was exiting the parking lot, Gamboa asked Petitioner, "Is that Papadoo?" (R.T. 606) . Petitioner said he could not see (R.T. 606).
Nevertheless, Gamboa drove to a street behind the Best Buy and Savers stores and parked (R.T. 606-07). The two men exited the car, cut through a driveway, jumped over fences and ended up in back of the business complex where the Best Buy and Savers stores were located (R.T. 608-10). They walked behind Savers and Best Buy without speaking, Gamboa in front and "pretty much leading" Petitioner (R.T. 610-611, 613-14). The two stopped at a place where they could see the gas station, and Gamboa said "there's [sic] three black people right there" (R.T. 611-13). Petitioner did not know who the people were (R.T. 613). Nevertheless, Gamboa turned and went the other way, back behind Best Buy and Savers, and Petitioner followed (R.T. 613-14).
When the two came around the north side of Savers, Petitioner saw three people at the gas station, but he could not see well enough to know if one of them was Willis (R.T. 614-15). Petitioner and Gamboa walked closer and stopped approximately 15 to 17 feet away (R.T. 616-17) .
Petitioner said "Papadoo" because Petitioner wanted to fight Willis and get the speaker back (R.T. 618). Petitioner did not know Rodgers or Medlock were there (R.T. 618) .
Willis started to remove his backpack and to approach (R.T. 616-19). Willis' removal of the backpack did not mean anything to Petitioner at the time (R.T. 620). Petitioner thought the two were going to fight "one-on-one" (R.T. 619-20) . The other black males did not move (R.T. 620) .
Gamboa started shooting, surprising Petitioner (R.T. 620). Petitioner had not seen Gamboa pull out or point a gun (R.T. 620). Petitioner heard "a lot" of shots (R.T. 621). Petitioner did not see anyone get struck and did not see anyone fall (R.T. 621).
Petitioner waited for Gamboa, then followed Gamboa, running "back the way we came" (R.T. 621). The two then rode in the car back to Gamboa's house (R.T. 621).
At Gamboa's house, Petitioner got his cell phone and began to record himself (R.T. 623). Petitioner said he did so because he was "upset and hurt" and believed that his "life was in danger," but then he said "I don't know why I grabbed my cell phone" (R.T. 623-24). Petitioner acknowledged that the voices on the cellphone video were his and Gamboa's (R.T. 624). Petitioner explained that, when he said "This is for -- fuck Papadoo and all the [n--rs]," Petitioner meant that Willis had beaten Petitioner up earlier in the day and that Petitioner went back for a fight (R.T. 624). The statement "hey [n--a], you know how to dance" referred to a Master P song (R.T. 626). When Petitioner said, "he paid for N word's mistake," Petitioner was referring to Willis's own mistake (R.T. 626-27). The statement "he could have squared up with me" meant that Willis could have fought with Petitioner (R.T. 627).
Petitioner admitted falsely telling police that Petitioner was not present when the shooting occurred (R.T. 628-29). Petitioner claimed he did so because he did not want to get Gamboa in trouble (R.T. 62 9).
2. Cross-Examination
On cross-examination, Petitioner testified as follows:
Gamboa was one of Petitioner's best friends (R.T. 654). Gamboa's nickname was "Maniac" and he had been to prison a number of times (R.T. 654). Gamboa had been released from prison within the year, but had been "living the straight life" since his release (R.T. 654-55).
On the night of the incident, Petitioner told Gamboa that Willis was Black, tall, wore glasses and lived on the street (R.T. 663, 671). While the two were driving around, Gamboa said that he saw some black people and that one of them might be Willis (R.T. 663). Petitioner could have exited the car or had Gamboa pull up into the gas station so Petitioner could fight Willis, but Petitioner stayed in the car until Gamboa parked (R.T. 673-75). Petitioner never asked Gamboa where Gamboa was going (R.T. 676). Although Petitioner knew the area well, and Gamboa did not, Petitioner silently and blindly followed Gamboa as the two jumped the fence and walked at first in the opposite direction from the victims' location (R.T. 676-77).
Eventually, Petitioner and Gamboa walked up to the three victims (R.T. 678). Because Petitioner's eyesight is so poor, Petitioner did not know who they were, and did not know whether they had weapons (R.T. 678-79). When Petitioner heard gunshots, he did not "hit the floor" or try to protect his body, even though he did not know whether any of the victims had a gun (R.T. 682-83). Petitioner did not see any gun (R.T. 684). Although Petitioner did not know from where the gunfire was coming, he turned his back to the victims because he "didn't want to witness anything" (R.T. 683-84).
Petitioner initially said that he did not see anyone shot (R.T. 649). However, when the prosecutor reminded Petitioner that the cellphone video showed Petitioner saying "you got all three of them," Petitioner said that he thought Willis had been shot, and that Gamboa had said that he, Gamboa, had shot Willis (R.T. 649).
Petitioner admitted that he told police that he had been sleeping at home when the shooting occurred (R.T. 63 0-32). Petitioner also lied when he later told police that he had been sleepwalking or on drugs during the incident (R.T. 633-35). Petitioner lied because he did not want to get his cousin in trouble (R.T. 636). Petitioner failed to tell police that Petitioner supposedly had not known that a shooting was going to occur (R.T. 635-36).
Petitioner did not remember telling police of past problems that Petitioner had with Willis (R.T. 637-39). Willis had attempted to rob Petitioner in the past (R.T. 640). Petitioner denied being angry with Willis after the fight at Cavalier Liquor, saying rather that Petitioner was "upset" and had hurt feelings (R.T. 641-42, 649-50). Petitioner admitted that, after the Cavalier Liquor incident, Petitioner and Willis were not friends anymore (R.T. 649).
Petitioner admitted that, ten minutes after he learned Willis had been shot, he dedicated a video to Willis (R.T. 650). Petitioner said the plan had been to have Gamboa record Petitioner fighting Willis (R.T. 688). Petitioner was sad when he made the video (R.T. 651). Petitioner claimed that, when he said "fuck Papadoo and all the [n---as]," the comment referred only to Willis (R.T. 651-51). Petitioner recalled saying "you got all three of them" in the video, but explained that he was not excited, but was "just trippin" and "worried" (R.T. 651, 687). Petitioner claimed that saying the shooting was "sick" meant that it was "nasty," "not cool" and "not good" (R.T. 651). Petitioner admitted that the reference to the Master P song with the lyrics "Hey [n---a], you know how to dance" referred to Gamboa's statement that the victims were "screaming and yelling and trying to get away" (R.T. 652). Petitioner acknowledged that the lyrics concerned Black men trying to get away from bullets, but said that Petitioner was making a "joke" about Willis because "he's the one that ran away" (R.T. 652, 687). Petitioner claimed that his comment "he paid for a [n---er's] mistake" referred to Willis, not Rodgers (R.T. 690). Petitioner acknowledged that, on the video, Petitioner did not ask why Gamboa had "done that" or what had happened to the supposed plan for Petitioner to fight Willis (R.T. 686-87) . Petitioner agreed that his response on the video of "Oh yeah" to Gamboa's statement that Gamboa knew he had hit all the victims and that "that fool" had "screamed like a little bitch" did not sound like Petitioner was upset (R.T. 690-91) .
B. Other Defense Evidence
A police officer testified that, on June 25, 2016, he interviewed Willis at the hospital where Willis was being treated for a gunshot wound to the left buttock (R.T. 498-99). At that time, Willis said he could not identify the two men involved in the shooting (R.T. 500-01, 507-08). A detective testified that, at the hospital, Willis said that he did not see the faces of the two men, but believed they were Hispanic (R.T. 511-12).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The trial court allegedly erred by instructing that the jury could convict Petitioner of lying-in-wait murder under the natural and probable consequences doctrine;
It is somewhat unclear whether the First Amended Petition asserts this claim. The claim is embedded in Petitioner's challenge to the lying-in-wait special circumstances instructions (see First Amended Petition, ECF Dkt. No. 7, p. 8). In the Traverse, Petitioner alleges that he is not challenging his "entire conviction" but only the special circumstance finding (Traverse, ECF Dkt. No. 20, p. 4). In any event, as discussed herein, the claim lacks merit.
2. The trial court's instructions concerning the lying-in-wait special circumstance allegedly relieved the prosecution of its asserted burden of proof that Petitioner acted with the intent to kill Rodgers; and
3. Petitioner's counsel allegedly rendered ineffective assistance by failing to request a clarifying or amplifying instruction directed to the special circumstance instructions (First Amended Petition, ECF Dkt. No. 7, pp. 13-14).
DISCUSSION
I. Petitioner's Challenge to the Lying-in-Wait Natural and Probable Conseguences Murder Instructions Does Not Merit Federal Habeas Relief.
A. Standards Governing Claims of Alleged Instructional Error
"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert, denied, 549 U.S. 1027 (2006). An instruction can violate due process only if the instruction renders a trial fundamentally unfair. Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002), cert, denied, 539 U.S. 958 (2003). "The relevant inquiry is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert, denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)) .
B. Background
California Penal Code section 189(a) lists the types of murders deemed to be first degree murder, including, but not limited to, murder by "willful, deliberate, and premeditated killing" and murder by means of "lying in wait." The state sought to prove that Petitioner was guilty for the first degree murder of Rodgers as an aider or abettor on two theories: (1) Petitioner intentionally aided and abetted Gamboa in the wilful, premeditated and deliberate attempted murder of Willis and was liable for the killing of Rodgers by operation of the doctrine of transferred intent; and (2) Petitioner was guilty of first degree murder by lying-in-wait because, under the natural and probable consequences theory of accomplice liability, the killing of Rodgers was a natural and probable consequence of the attempted murder of Willis.
Under California law, "a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator." People v. Prettyman, 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (1996). An aider and abettor "is a person who, '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.'" Id. (citation omitted). Petitioner's jury was so instructed (R.T. 754; C.T. 588) .
Factors probative on the issue of knowledge and intent include "presence at the scene of the crime, [and] companionship and conduct before and after the offense, including flight." People v. Mitchell, 183 Cal.App.3d 325, 330, 228 Cal.Rptr. 286 (1986) (citations omitted); see also People v. Chaqolla, 144 Cal.App.3d 422, 429, 193 Cal.Rptr. 711 (1983).
Under the "natural and probable consequences" theory of aiding and abetting, an aider and abettor is guilty not only of the intended crime, but also of any other offense that was the natural and probable consequence of the intended crime. People v. Prettyman, 14 Cal.4th at 261. Under this theory of aiding and abetting, "the trier of fact must find that the defendant, 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 a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime." Id. at 262. "A defendant guilty as an aider and abettor under the 'natural and probable consequences' doctrine need not share the perpetrator's intent to kill." People v. Williams, 16 Cal.4th 635, 691, 66 Cal.Rptr.2d 573, 941 P.2d 752 (1997), cert, denied, 523 U.S. 1027 (1998) (citation omitted). The court instructed Petitioner's jury on the natural and probable consequences doctrine (R.T. 755-56; C.T. 590).
In People v. Chiu, 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 (2014) ("Chiu"), the California Supreme Court held that the natural and probable consequences theory of accomplice liability did not extend to first degree premeditated and deliberate murder. Petitioner contends that, in light of Chiu, the trial court erred by instructing the jury that an accomplice could be found guilty of first degree lying-in-wait murder under a natural and probable consequences theory. The California Court of Appeal expressly rejected this argument. See People v. Gastelum, 45 Cal.App. 5th 757, 768-69, 259 Cal.Rptr.3d 44 (2020). The Court of Appeal ruled that, as a matter of California law, the rule of Chiu does not apply to a charge of first degree lying-in-wait murder. Id.
C. Analysis
Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas relief is unavailable for mere violations of state law. See Estelle v. McGuire, 502 U.S. at 67-68 ("it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions"); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis). This federal Court cannot properly review the propriety of the Court of Appeal's construction of Chiu as a matter of state law. See Waddinqton v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (federal habeas court erred in failing to defer to state supreme court's authoritative holding that transferred intent doctrine applied to aggravated felony murder as a matter of state law; "[w]e have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.") (citations omitted); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law"); Hubbart v. Knapp, 379 F.3d 773, 780 (9th Cir. 2004), cert, denied, 543 U.S. 1071 (2005) ("We may not second-guess the California appellate court's construction of its own state law. . . ."); Mendoza v. Warden Montgomery, 2018 WL 7824450, at *14 (CD. Cal. Dec. 20, 2018), adopted, 2019 WL 1330888 (CD. Cal. Mar. 25, 2019) (federal habeas court "is bound by the state court's finding that Chiu was inapplicable").
Because the Court of Appeal held that the challenged instructions were correct as a matter of state law, Petitioner has failed to prove any instructional error, much less an instructional error of constitutional dimension. See Spivey v. Rocha, 194 F.3d 971, 976-77 (9th Cir. 1999), cert, denied, 531 U.S. 995 (2000) (rejecting constitutional challenge to aiding and abetting jury instruction which was correct as a matter of state law); King v. Cate, 2011 WL 2728127, at *2 (N.D. Cal. July 12, 2011) (claim of instructional error failed where the state appellate court had found that the challenged instruction correctly stated California law); White v. Ollison, 592 F.Supp.2d 1227, 1247-48 (CD. Cal. 2008) ("Because the trial court's instruction . . . was a correct statement of law, petitioner is not entitled to habeas relief on his claim"). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
II. The Doctrine of Procedural Default Precludes This Court's Review of Petitioner's Challenge to the Lying-in-Wait Special Circumstance Instructions.
The court instructed the jury on the elements of lying-in-wait special circumstance, using CALCRIM 702 and 728:
CALCRIM 702 Instruction:
If you decide that the defendant is guilty of first degree murder but was not the actual killer, then you must consider the special circumstances [sic] of lying in wait under Penal Code section 190.2, sub (a), sub (15). You must also decide whether the defendant acted with the intent to kill.
In order to prove this special circumstance for a defendant who is not the actual killer, then [sic] the People have the burden of proving beyond a reasonable doubt that he acted with the intent to kill with the special circumstance of lying in wait, under Penal Code section 190.2(a)(15) to be true. If the People have not met this burden, you must find this special circumstance has not been proved.(R.T. 765; C.T. 603) .
CALCRIM 728 Instruction:
The defendant is charged with the special circumstance murder committed by means of lying in wait, in violation of Penal Code Section 190.2(a)(15).
To prove this special circumstance true, the People must prove that:
(1) The defendant intentionally killed Terrance Rodgers;
And (2) the defendant committed the murder by means of lying in wait.
A person commits a murder by means of lying in wait if:
(1) He or she concealed his or her purpose for the person killed;
(2) He or she waited and watched for an opportunity to act;
(3) That [sic] he or she made a surprise attack on the person killed from a position of advantage;
And (4) he or she intended to kill the person by taking the person by surprise.(R.T. 766-77; C.T. 606).
Petitioner contends that the CALCRIM 702 instruction allegedly relieved the prosecution of an asserted burden of proof that Petitioner acted with the intent to kill Rodgers, as opposed to Willis (First Amended Petition, ECF DKt. No. 7, pp. 5, 9-12). The Court of Appeal ruled that Petitioner had forfeited this claim because his trial counsel had failed to object to the challenged instruction. See People v. Gastelum, 40 Cal.App. 5th at 770-71.
A federal court may be barred from reviewing the merits of a habeas petitioner's claim when the petitioner has violated a state law procedural rule. Coleman v. Thompson, 501 U.S. 722, 729 (1991). "For the procedural default rule to apply, however, the application of the state procedural rule must provide 'an adequate and independent state law basis' on which the state court can deny relief." Park v. California, 202 F.3d 1146, 1151 (9th Cir.), cert, denied, 531 U.S. 918 (2000) (citation omitted). If the court finds an adequate and independent state procedural ground, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); see Coleman v. Thompson, 501 U.S. at 750; Park v. California, 202 F.3d at 1150.
In Bennett v. Mueller, 322 F.3d 573, 581-83 (9th Cir.), cert. denied, 540 U.S. 938 (2003), the Ninth endorsed the following burden-shifting scheme for procedural default:
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in
issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 586.
Here, Respondent has met her burden to plead California's contemporaneous objection rule as an adequate and independent state law ground to deny habeas relief. Petitioner does not (and could not) deny the adequacy or independence of California's contemporaneous objection rule. See Fairbank v. Avers, 650 F.3d 1243, 1256-57 (9th Cir. 2011), cert, denied, 565 U.S. 1276 (2012) (California's contemporaneous objection rule is an adequate and independent state procedural rule which can bar federal habeas review).
A federal habeas court may consider a procedurally defaulted claim if the petitioner demonstrates that: (1) cause exists for the default and actual prejudice resulted from the alleged violation of federal law; or (2) the failure to consider the petitioner's claim would result in a fundamental miscarriage of justice because "a constitutional violation has probably resulted in the conviction of one who is actually innocent." See Murray v. Carrier, 477 U.S. 478, 485, 496 (1986); Coleman v. Thompson, 501 U.S. at 750; Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir.), cert, denied, 568 U.S. 1001 (2012); Flowers v. Small, 2010 WL 430704, at *13 (CD. Cal. Feb. 4, 2010) ("The failure to comply with a state's contemporaneous objection rule results in a procedural default which bars federal consideration of the issue, unless petitioner can demonstrate both 'cause' for his failure to raise the objection at trial and 'prejudice' accruing from the error.") (citations omitted). To make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner does not allege actual innocence, and Petitioner has not submitted any "new reliable evidence" to show any supposed actual innocence. Rather, Petitioner argues cause and prejudice, contending that trial counsel's failure to object to or seek clarification of the special circumstance instruction should excuse the procedural default (Traverse, ECF Dkt. No. 20, pp. 2-3).
Petitioner bears the burden to show both cause and prejudice. See Davila v. Davis, 137 S.Ct. 2058, 2064 (2017); Bousley v. United States, 523 U.S. 614, 622 (1998); Murray v. Carrier, 477 U.S. at 485. "Cause" requires some objective factor external to the petitioner, i.e., something that cannot fairly be attributed to the petitioner which precluded the petitioner from properly raising the claims in state court. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991); see also Maples v. Thomas, 565 U.S. 266, 280-81 (2012); Coleman v. Thompson, 501 U.S. at 753. To show prejudice, the "habeas petitioner must show 'not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray v. Carrier, 477 U.S. at 494.
"[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S. at 486. "Attorney ignorance or inadvertence does not constitute 'cause' unless it rises to the level of constitutionally ineffective assistance." Cockett v. Ray, 333 F.3d 938, 944 (9th Cir. 2003). To show that an attorney's ineffectiveness constitutes "cause" excusing a procedural default, a petitioner must show that counsel's performance fell below an objective level of reasonableness and that there is a reasonable probability that, but for counsel's errors, the petitioner would have prevailed on appeal. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984) ("Strickland")); see Murray v. Carrier, 477 U.S. at 488 ("[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [the federal courts] discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default").
In the present case, for the reasons discussed in the next section, Petitioner has failed to show counsel's ineffectiveness.
Hence, Petitioner has failed to show "cause." Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
Thus, the Court need not reach the issue of whether Petitioner has also failed to show the "actual prejudice" required to excuse the procedural default.
III. Petitioner Was Not Deprived of the Effective Assistance of Trial Counsel.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert, denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. ..." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborouqh v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted); see also Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert, denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief).
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "'reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.
B. Analysis
As indicated above, Petitioner contends his trial counsel rendered ineffective assistance by failing to object to the lying-in-wait special circumstance instructions on the ground that the instructions allegedly relieved the prosecution of an asserted burden of proof that Petitioner acted with the intent to kill Rodgers, as opposed to Willis. Petitioner argues counsel's alleged ineffectiveness both as "cause" for the procedural default and as an independent claim for relief.
The California Court of Appeal cited the correct standards governing constitutional claims of ineffective assistance of counsel. See People v. Gastelum, 40 Cal.App. 5th at 771-72. The Court of Appeal did not address the reasonableness of counsel's performance, however, ruling only that Petitioner had failed to show Strickland prejudice. See People v. Gastelum, 40 Cal.App. 5th at 771-72.
The Court of Appeal quoted the prejudice standard for ineffective assistance of counsel set forth in People v. Scott, 15 Cal.4th 1188, 1211-12, 65 Cal.Rptr.2d 240, 939 P.2d 354 (1997), cert, denied, 523 U.S. 1025 (1998), which in turn relied on Strickland and California cases applying the Strickland standard. See People v. Gastelum, 40 Cal.App. 5th at 771.
This federal Court finds that Petitioner's arguments fail under both prongs of the Strickland analysis. Counsel's performance was neither unreasonable nor prejudicial.
Counsel reasonably could have believed it would have been futile to object to the special circumstances instructions on the ground that the instructions failed to tell the jury that the prosecution was required to prove that Petitioner intended to kill Rodgers, not Willis. Although Petitioner argues that a lying-in-wait special circumstance requires proof that the defendant intended to kill a particular victim, California case law in existence at the time of Petitioner's trial refutes this argument.
For example, in People v. Shabazz, 38 Cal.4th 55, 40 Cal.Rptr.3d 750, 130 P.3d 519 (2006), the California Supreme Court authoritatively construed the portion of the gang special circumstances provision of California Penal Code section 190.2(22) requiring proof that the defendant "intentionally killed the victim." In that case, the defendant shot into a car intending to kill the passenger, but the passenger ducked and the shot killed the driver instead. People v. Shabazz, 38 Cal.4th at 60. The defendant contended that the gang special circumstance did not apply because he had intended to kill the passenger, not the driver. Id. at 61. The Court of Appeal rejected this argument, reasoning that the statute did not require that the murder victim be the person the defendant intended to kill. Id. The California Supreme Court affirmed on this issue, ruling that the doctrine of transferred intent applied to the intent to kill requirement contained in the gang special circumstance statute. Id. at 62-66. Hence, according to the California Supreme Court, the statute applied to a defendant who acted with "an intent to kill that resulted in the killing of any individual." Id.; see also People v. Arreola, 186 Cal.App.3d 1570, 1576, 231 Cal.Rptr. 472 (1986) ("it appears that the intent to kill required for a murder special circumstance need not be the intent to kill the ultimate victim"; discussing multiple murder special circumstance).
Section 190.2(22) authorizes a sentence of death or life without parole wherew[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, . . . and the murder was carried out to further the activities of the criminal street gang."
The Court in People v. Shabazz also indicated that the fact the defendant was charged with and convicted of the attempted murder of the passenger did not change this result. See People v. Shabazz, 38 Cal.4th at 63 n.5.
Petitioner's counsel reasonably could have believed that the holding and the rationale of People v. Shabazz would doom the argument Petitioner now urges with respect to the lying-in-wait special circumstance instructions. Indeed, such reasonable belief would have been prescient. While Petitioner's direct appeal was pending, the California Court of Appeal issued its decision in People v. Robbins, 19 Cal.App. 5th 660, 669-71, 228 Cal.Rptr.3d 468 (2018). In People v. Robbins, the Court of Appeal expressly held that transferred intent applied to a lying-in-wait special circumstance. There, the defendant lay in wait for the intended victim but, mistaking another person for the intended victim, shot the other person.
In addition to failing to show his counsel's unreasonableness, Petitioner has failed to show a reasonable probability of a different result had counsel acted as Petitioner now suggests. First, in light of People v. Shabazz, Petitioner's trial court likely would have declined to instruct the jury that it had to find Petitioner intended specifically to kill Rodgers in order to find the special circumstance true. For the same reason, the Court of Appeal and the California Supreme Court likely would have upheld the trial court's declination. Second, the verdict form used by Petitioner's jury reflected that the jury did find that Petitioner intended to kill Rodgers by lying-in-wait (C.T. 650).
Third, the strength of the trial evidence showing Petitioner intended to kill Rodgers demonstrates that it is not reasonably probable that the desired instruction modification would have yielded a different verdict. The evidence permitted the jury to conclude that Petitioner: (1) was upset and angry with Willis prior to the incident; (2) knew that the victims lived on the streets in the area of the gas station; (3) accompanied Gamboa on the night of the shooting as Gamboa drove past the gas station, where Petitioner and Gamboa saw three Black men; (4) failed to object or comment when Gamboa did not park the car at the gas station, but rather parked in a street some distance away; (5) accompanied Gamboa, without objection or comment, on a circuitous, concealed route which generally hid Petitioner and Gamboa from the view of the men at the gas station; (6) stayed right next to Gamboa while Gamboa held a pointed gun and while Petitioner and Gamboa approached the three men at the gas station; and (7) called out Willis' name as Petitioner and Gamboa approached the three men. The evidence further showed that Gamboa shot Rodgers first, and that, when Rodgers fell, Gamboa fired more shots into Rodgers. The jury's verdict that Petitioner was guilty of wilful, deliberate and premeditated attempted murder of Willis, as well as the gun enhancement findings on both the murder and attempted murder counts, necessarily show that the jury disbelieved Petitioner's testimony that he supposedly did not know Gamboa had a gun. There was no evidence that Petitioner ever attempted to stop Gamboa from shooting (or from continuing to shoot) Rodgers or that Petitioner otherwise objected to the shooting before, during or after the shooting. To the contrary, the evidence showed that Petitioner waited for Gamboa to finish shooting, ran back to the car with Gamboa, accompanied Gamboa to Gamboa's house and then filmed a celebratory video dedicated to "Fuck Papadoo and all the [n---rs] . " This video amply confirms that Petitioner shared Gamboa's intent to kill Rodgers. In the video, Petitioner did not pretend any supposed lack of prior knowledge of Gamboa's intent, any supposed surprise at Gamboa's killing of Rodgers or any supposed regret at the killing. In the video, Petitioner did not indicate any inability to see the victims prior to the shooting. In the video, Petitioner did not indicate any surprise that Gamboa had a gun or that Gamboa had shot the gun. Rather, Petitioner showed off the gun as part of the video. Petitioner did not disavow Gamboa's statement in the video describing the shooting; indeed, Petitioner signified agreement and approval. In response to Gamboa's bragging about shooting Rodgers ("doom, doom, doom"), Petitioner immediately responded, "He paid for a [n--er's] mistakes," a statement the jury reasonably could have interpreted as Rodgers "paying" for Willis' mistakes. When Gamboa said, "Hey those fools got served. Hey that shit was gangster as fuck," Petitioner responded, "Those fools got smashed." When Gamboa bragged that he had "hit every single one of them," Petitioner responded, "Oh, yeah." Furthermore, the next day, Petitioner told Jaime Cruz that "we took care of those [n-as] (emphasis added)."
The court gave a pattern adoptive admissions instruction (R.T. 751; C.T. 581) .
In sum, Petitioner has shown neither counsel's unreasonableness nor a reasonable probability of a different result. Therefore, Petitioner has shown neither "cause" for the procedural default nor entitlement to federal habeas relief on his claim of ineffective assistance of counsel.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the First Amended Petition with prejudice.
As the foregoing discussion demonstrates, the First Amended Petition should be denied because Petitioner is not "in custody in violation of the Constitution or laws or treaties of the United States," within the meaning of section 2254(a) of Title 2 8 U.S.C. The Court need not and does not reach the issue of whether the First Amended Petition, or any claim therein, also should be denied on the alternative ground of failing to satisfy the requirements of section 2254(d) of Title 28 U.S.C.
Petitioner's request for an evidentiary hearing (see Traverse, pp. 1-2) is denied. Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (2 0) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.