Opinion
2:13-cv-0604 WBS AC P
10-29-2024
JULIUS M. ROBINSON, Petitioner, v. G.W. LEWIS, Respondent.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Petitioner brought a pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on March 28, 2013. ECF No. 1. Following dismissal on January 7, 2014, and reversal of that judgment over six and a half years later following extensive appellate proceedings, respondent answered on January 7, 2021. ECF No. 50. Petitioner, now represented by appointed counsel, replied on June 7, 2021. ECF No. 53. The petition challenges petitioner's 2009 conviction for two counts of attempted first degree murder and related offenses. ECF No. 1. The case proceeds on Claims One through Five, a sixth claim having been voluntarily dismissed. See ECF No. 47.
BACKGROUND
I. Proceedings in the Trial Court
A. Preliminary Proceedings
Petitioner and a co-defendant were charged in Sacramento County with two counts of attempted murder; malicious discharge of a firearm at an inhabited dwelling causing great bodily injury; and malicious discharge of a firearm from a motor vehicle causing great bodily injury. Numerous gun and gang-related enhancements were alleged.
Petitioner was first appointed counsel in May 2005. Two years later, after two successful Marsden motions (and many more unsuccessful Marsden motions) and three different lawyers,petitioner was granted the right to represent himself following a Faretta hearing. I CT 30 (ECF No. 49-1 at 41). After repeated continuances of the trial date at petitioner's request, he moved for appointment of counsel. The request was initially denied as untimely, and an imminent trial date was confirmed. I CT 35 (ECF No. 49-1 at 46); I RT 59-60 (ECF No. 49-5 at 29-30). However, a renewed motion for appointment of counsel was granted on July 25, 2007. I CT 36 (ECF No. 491 at 47). Petitioner was accordingly represented by counsel at trial, which did not begin until February 2009. I CT 44 (ECF No. 49-1 at 55).
See People v. Marsden, 2 Cal.3d 118 (1970); see also III CT 679-680 (ECF No. 49-3 at 79-80) (People's Opposition to Defendant's Motion to Substitute Counsel) (summarizing procedural history).
Faretta v. California, 422 U.S. 806 (1975).
Petitioner's co-defendant did not proceed to trial.
Petitioner represents that the charges against his co-defendant, who had been identified as the driver of the Mercedes, were dropped “in the interests of justice.”
B. The Evidence Presented at Trial
This summary is adapted in part from the opinion of the California Court of Appeal, ECF No. 49-15 at 2-5.
1. Prosecution Case
In March 2005, petitioner was a member of the Nogales Crips, a street gang in the Del Paso Heights area of Sacramento. At the time, there was ongoing retaliatory violence between the Nogales Crips and its archrivals, the Del Paso Heights Bloods and Elm Street Bloods. A Crip named Shepard Scott had been killed, and Blood member Anthony Weaver was believed to have been responsible for the killing. On two occasions prior to the shooting involved in this case, Weaver had been the target of unsuccessful assassination attempts.
Around 1:00 p.m. on March 26, 2005, Anthony Weaver, Corey Yerger, Yerger's uncle Andrea Wingfield, and others were hanging out in the garage of Weaver's house on Fell Street in Sacramento. Except for Wingfield, everyone in the garage was a Blood gang member. Wingfield was standing by the open garage door and other men were shooting dice. Yerger was in the driveway, eating barbecued ribs.
A battered white Mercedes pulled around the corner and turned onto Fell Street. Someone in the garage yelled, “Here come the Crips,” and everyone scattered. As the Mercedes drove by, the person in the front passenger seat leaned out of the window and fired several shots at the garage. Yerger yelled that he was hit, and blood started gushing from his neck. Weaver was shot in the arm. As a result of the shooting, Yerger was paralyzed from the waist down.
A Cadillac carrying two young men pulled out of the Fell Street house immediately after the shooting and started chasing the Mercedes, precipitating a furious gun battle between the occupants of the two cars. Petitioner's fingerprints were later found on the Mercedes.
After being initially called to the scene of the Fell Street shooting, Sacramento Police Officer Filmore Graham was rerouted by dispatch to a house on Cypress Street. There he located petitioner, who was holding his hand over his bleeding right eye. Petitioner refused to give any information to Graham or tell him how he was injured.
During the ensuing police investigation, both victims identified petitioner as the shooter. The prosecutor played a videotape of Anthony Weaver telling police that petitioner was the shooter, had hung out the window, and had shot with a silver gun. The prosecutor also played an audiotape of Corey Yerger pointing to petitioner's photo in a photo lineup and identifying him as the shooter. Andrea Wingfield had also picked petitioner out of a photo lineup, and had identified him as the shooter at the preliminary hearing.
At trial, all three of these witnesses testified that they could not identify or describe the shooter and did not remember any details of the incident. All three witnesses testified involuntarily and in custody after arrest to secure their appearance.
A gang expert testified that at the time of the shootings, petitioner was a validated member of the Nogales Crips, whose rivals were the Del Paso and Elm Street Bloods. The expert opined that Blood member Weaver was the target of the Fell Street shooting, since he was believed to have been responsible for the assassination of noted Crip Shepard Scott. An attempt to kill Weaver at a gas station three days earlier had gone awry. The expert stated his opinion that the shooting was in retaliation for the killing of Scott and was done to benefit and promote the Crips gang.
2. Defense Case
Deric Tennessee, a former Blood gang member, testified that he was in the garage at the time of the Fell Street shooting. When the Mercedes drove by “all hell broke loose.” Tennessee had seen someone in the garage with a gun in his pants, but he did not know where the shots were coming from. Tennessee saw Yerger with a gunshot wound to the side of his neck. It was Tennessee's opinion, based on his observations and having been shot himself, that the bullet that caused Yerger's neck wound could not have been fired from the street.
Petitioner took the stand and admitted that on the day of the shooting he was associated with the Nogales Crips. He also admitted that Shepard Scott had been a close friend and that he had heard the rumor that Scott had been murdered by the Bloods. Petitioner testified that he was in the front passenger seat of the Mercedes that drove by the Fell Street garage. However, the purpose of the trip was not to shoot anybody, but to pick up some marijuana. As the Mercedes drove by the Fell Street house, petitioner saw people scattering in the front yard and heard gunshots. His friend “Boo,” who was in the back seat said, “those dudes is tripping,” which defendant understood to mean the “dudes” were shooting at their car. None of the shots hit the Mercedes. The Mercedes kept driving to escape the gunfire directed at it. Two men from the house got into a Cadillac and began chasing the Mercedes. The Cadillac eventually pulled in front of the Mercedes and several shots were fired at them. Petitioner was hit twice. Boo pulled out a gun and fired back in retaliation. Petitioner denied harboring any animosity towards Weaver, Yerger or Wingfield.
C. Outcome
The jury found petitioner guilty of two counts of attempted willful, deliberate and premeditated murder; malicious discharge of a firearm at an inhabited dwelling causing great bodily injury; and malicious discharge of a firearm from a motor vehicle causing great bodily A injury. The jury also found true multiple gun use enhancement allegations, and found that all the crimes were committed with specific intent to promote criminal conduct by a street gang.
The trial court found prior prison term and prior conviction allegations to be true. Petitioner was sentenced to an indeterminate term of 205 years to life, plus a determinate term of 17 years.
II. Post-Conviction Proceedings
Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of conviction on February 8, 2011. ECF No. 49-15. The California Supreme Court denied review on May 11, 2011. ECF No. 49-17.
Petitioner filed a petition for writ of habeas corpus in the Superior Court of Sacramento County, which was denied in a written decision on January 17, 2012. ECF No. 49-18. Petitioner next filed a habeas petition in the California Court of Appeal, which was denied on April 5, 2012, with citation to In re Steele, 32 Cal.4th 682, 692 (2004), and In re Hillery, 202 Cal. App.2d 293 (1962). ECF No. 49-19. Petitioner then filed a habeas petition in the California Supreme Court, which was summarily denied on October 24, 2012. ECF No. 49-20.
STANDARDS GOVERNING FEDERAL HABEAS RELIEF
28 U.S.C. § 2254 provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100.
The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established Federal law,” but courts may look to circuit law “to ascertain whether.. .the particular point in issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
A state court decision is “contrary to” clearly established federal law if the decision “contradicts the governing law set forth in [the Supreme Court's] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).
Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182. Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to “the state court's actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 102.
DISCUSSION
I. Claim One: Sufficiency of the Evidence
A. Petitioner's Allegations and Pertinent State Court Record
Petitioner alleges that his due process rights were violated by conviction on insufficient evidence. ECF No. 1 at 4. He contends more specifically that (1) mere presence at the crime scene and alleged gang membership are insufficient to support conviction of “the charged offense”; (2) there was no evidence that petitioner personally used or personally and intentionally discharged a firearm “in the commission of the charged offense”; (3) there was no scientific or forensic evidence or witness testimony to establish that petitioner personally discharged a firearm; and (4) there was insufficient evidence of shooting at a house. Id. at 5. The lengthy sections of legal argument in support of this claim fail to clearly distinguish between the various counts of conviction. See id. at 7-38, 54-76. Petitioner summarily references the insufficiency of the evidence to sustain the attempted murder verdict, id. at 14; elsewhere addresses the charge of malicious discharge of a firearm at an inhabited dwelling, id. at 37-38; and still elsewhere (in an entirely different section of the petition) challenges the sufficiency of the evidence as to the gang enhancement, id. at 62-76.
Because the latter is presented in the context of Claim Two, which challenges admission of expert testimony from a gang expert, it will be addressed in that context below.
B. The Clearly Established Federal Law
Due process requires that each essential element of a criminal offense be proven beyond a reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of evidence to support a conviction, the question is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1974). If the evidence supports conflicting inferences, the reviewing court must presume “that the trier of fact resolved any such conflicts in favor of the prosecution,” and the court must “defer to that resolution.” Id. at 326. “A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). Put differently, a verdict must stand unless it was “so unsupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012). In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense “is purely a matter of federal law.” Id. at 655.
C. The State Courts' Rulings
1. Malicious Discharge of Firearm at an “Inhabited Dwelling”
On direct appeal, petitioner challenged the sufficiency of the evidence to support the “inhabited dwelling” element of shooting into an inhabited dwelling. Because the California Supreme Court denied discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker, 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).
The appellate court ruled as follows:
Defendant claims there was insufficient evidence to support his conviction for shooting at an inhabited dwelling within the meaning of section 246, because the People failed to prove that the garage was part of an occupied dwelling.
As the court held in People v. Adams (1982) 137 Cal.App.3d 346, 354-355, “Section 246 by its express language does not limit itself to an inhabited dwelling house, but rather includes any ‘occupied building.' The term ‘building' is a generic term meaning any edifice or structure built by man. [Citation.] A ‘building' is ‘[a] structure . . . [e]nclosing a space within its walls . . . .' [Citation.] The term ‘building' would include such structures as outhouses, barns, garages, and an occupied building includes areas controlled by the occupants, such as a garage.” Thus, as defendant concedes, a person who shoots into “an attached garage” violates section 246. (Adams, at p. 355.) Defendant asserts, however, there was no evidence that the Fell Street garage was attached to the house.
As the People point out, the jury was instructed that “[a] house includes any garage that is attached to the house and functionally connected with it.” (See CALCRIM No. 965.) Photographs of the Fell Street house “with white garage door on right” were introduced into evidence without objection and defense counsel never argued to the jury that the garage was not attached to the house. Absent an indication to the contrary, we may presume these photos filled the evidentiary lacuna of which defendant complains.
In his reply brief, defendant concedes the photographs were in evidence, but maintains that because the People failed to include them as part of the record, his claim of insufficient evidence should be credited.
Defendant has the burdens backwards. A respondent has no burden to produce evidence to rebut a claim of insufficiency. Judgments are presumed correct in criminal as well as civil cases, and it is the appellant's burden to show error by an adequate record. (People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435-436.) “One aspect of that burden requires that the appellant develop the fullest possible evidentiary record before seeking review.” (Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1200.) A judgment is conclusively presumed correct as to all matters on which the record is silent. (Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) Because defendant did not produce the photographic exhibits as part of the record on appeal, we must presume they would support the judgment. Hence, defendant's substantial evidence argument fails.
ECF No. 49-15 at 21-23.
2. Attempted Murder and Charges Involving Use of a Firearm
Petitioner's challenge to the sufficiency of the evidence that he discharged a firearm, construed liberally as directed to all four counts of conviction and the firearms enhancements,was presented to the state courts in habeas. Because the California Supreme Court denied this claim without comment, this court “looks through” the silent denial to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797 (1991). The Court of Appeals denied the petition without discussion but with citation to In re Steele, 32 Cal.4th 682, 692 (2004), and In re Hillery, 202 Cal. App.2d 293 (1962). ECF No. 49-19. The superior court had previously issued a written decision, ruling in pertinent part as follows:
Discharge of a firearm is an element of the offenses of discharge of a firearm at an inhabited dwelling or occupied building, and of discharge of a firearm from a motor vehicle. As to the attempted murder counts, the prosecution alleged that petitioner was the shooter. The jury was instructed that attempted murder requires proof that the defendant took a direct but ineffective step toward killing another person, and did so with intent to kill.
Both cases hold that a habeas petition may be denied if it has not previously been filed in a lower court. As the traverse points out, this procedural bar appears to have been applied in error as the petition had been presented to the superior court. See ECF No. 53 at 5, n.3.
Petitioner also claims that the prosecutor failed to prove beyond a reasonable doubt that petitioner committed the charged offenses.
Petitioner fails to attach any reporter's transcript of the trial to support this claim, requiring its denial under Harris [in re Harris (1993) 5 Cal.4th 813, 829]. Rather, the Third District Court of Appeal's opinion on the appeal of the matter clearly shows proof beyond a reasonable doubt of each charged offense and enhancement. As such, the claim fails (Bower, supra [In re Bower (1985) 38 Cal.3d 865].
Petitioner also claims that the prosecutor failed to prove beyond a reasonable doubt that petitioner personally used or personally discharged a firearm in the commission of the charged offenses. He claims that the statute did not allow a true finding based on accomplice liability. He also claims that the prosecutor failed to provide any scientific or forensic evidence or witness testimony to establish that he personally discharged a firearm.
Petitioner, however, admits that during the trial, the prosecutor played a videotape of victim Weaver telling police that petitioner was the shooter, had hung out the window, and had shot with a silver gun, and that the prosecutor also played an audiotape of victim Yerger pointing to petitioner's photo and identifying petitioner as the shooter when Yerger was shown the lineup. Petitioner argues that other trial testimony contradicted these statements, but on habeas corpus a court does not reweigh the evidence to determine its sufficiency (see generally People v. Rodriguez (1999) 20 Cal.4th 1 [standard of review on appeal of sufficiency of evidence claim]). A jury could have believed these statements of victim Weaver and victim Yerger and chosen to disbelieve any other statement by them or testimony by others to the contrary; their identification of petitioner as the shooter constituted evidence beyond a reasonable doubt that petitioner personally used and discharged a firearm during the commission of the crimes. As such, the claim fails (Bower, supra).
ECF No. 49-18 at 3.
The superior court further held as follows:
Petitioner also claims that evidence of mere presence at the crime scene and of gang membership is insufficient to establish that petitioner committed and/or aided and abetted the charged offenses.
The evidence at trial, however, did not establish that petitioner was merely present at the scene or was a mere member of the gang. Rather, the summary of the evidence contained in the Third District's opinion on the appeal in this matter clearly shows that petitioner and his cohorts purposely armed themselves and drove to a residence specifically to kill a rival gang member whom they believed had shot a member of their gang, and that this was their third attempt to do so. And, as noted above, victims Weaver and Yerger identified petitioner as being the shooter. The claim fails (Bower, supra).
Petitioner also claims that the evidence was insufficient to show the predicate gang offenses needed to prove the gang enhancement. He claims that the 2002 trial and conviction of Javon Jordan was not sufficient proof because the prosecutor failed to provide sufficient details of the circumstances of that crime and that it was for the benefit of a street gang, and because Jordan was not convicted of a gang enhancement. He also claims that the second predicate offense, of an assault of Henley by the gang, was not sufficient proof because there was no evidence that it was committed for the benefit of a gang.
Petitioner fails to attach reporter's transcript of the evidence that was introduced at trial regarding either of these predicate offenses. As such, the court cannot assess whether sufficient evidence was introduced to show that the predicate offenses were committed for the benefit of the gang (see Harris, supra).
Petitioner also claims that the evidence is insufficient to support a finding that the shooting was committed for the benefit of the gang, or with the specific intent to further the criminal conduct by gang members. Not so. As noted above, the summary of the evidence contained in the Third District's opinion on the appeal in this matter clearly shows that petitioner and his cohorts purposely armed themselves and drove to a residence specifically to kill a rival gang member whom they believed had shot a member of their gang, and that this was their third attempt to do so. As such, the claim fails (Bower, supra).
ECF No. 49-18 at 4-5.
D. Objective Reasonableness Under § 2254(d)
1. The California Court of Appeal Reasonably Found That the Evidence Supported a Finding That the Shooter Fired at an “Inhabited Dwelling”
Petitioner's theory of insufficiency is predicated on an interpretation of state law-that conviction is permissible only upon proof that the garage into which shots were fired was physically attached to the house-that has been rejected by the state courts and is contrary to the plain language of the statute. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (state courts' interpretation of state law is binding on federal habeas court). Setting that issue aside, and considering only whether the prosecution presented evidence sufficient to prove the able to weigh the reliability of those statements against the circumstances of the in-court testimony. Reviewing courts are required to defer to the jury's credibility determinations. See Cavazos, 565 U.S. at 7-8; see also Schlup v. Delo, 513 U.S. 298, 330 (1995) (“under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.”). Petitioner's attempt to relitigate the reliability of the identifications and the weight of the evidence exceeds the permissible scope of Jackson review.
The statute under which petitioner was charged expressly prohibits the malicious and willful discharge of a firearm “at an inhabited dwelling house” or “occupied building.” Cal. Penal Code § 246; see also People v. Adams, 137 Cal.App.3d 346, 354-355 (1982). However, the jury was instructed only on shooting into “an inhabited house,” defined as including “any garage that is attached to the house and functionally connected with it.” III CT 788 (ECF No. 49-3 at 188).
Because there was direct evidence that petitioner shot at the people in the garage, the verdict cannot have been irrational. The fact that the evidence was contested does not change this. The absence of “scientific or forensic” evidence does not change this. Moreover, it is simply untrue that petitioner was convicted on the basis of “mere presence” and gang membership. Particularly in light of the “double dose of deference” to the verdict that is required under Jackson and the federal habeas statute, Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), relief is unavailable. Even under de novo review, the record does not support relief under Jackson for the reasons explained by the state court.
II. Claim Two: Admission of Prejudicial Gang Expert Testimony
A. Petitioner's Allegations and Pertinent State Court Record
Petitioner alleges that “[t]he trial court committed prejudicial error in discretion by allowing the admissibility of gang expert testimony on the alleged gang's primary activity and whether the appellant was an ‘active participant' of a criminal street gang.” ECF No. 1 at 4. Petitioner's supporting argument encompasses multiple discrete issues related to the gang enhancement and related evidence: impermissible hearsay conveyed by the gang expert (which the court construes as a challenge under the Confrontation Clause); insufficient evidence to prove the alleged primary activity of the gang; insufficient evidence that petitioner was an “active participant” in the gang; and impermissible propensity evidence. See id. at 39-53, 77-84.
B. The Clearly Established Federal Law
The erroneous admission of evidence violates due process only if the evidence is so irrelevant and prejudicial that it renders the trial as a whole fundamentally unfair. Estelle v. McGuire, 502 U.S. 62 (1991). Otherwise, evidentiary ruling are matters of state law that do not “inhabited house” theory that was offered to the jury, the state court was required under Jackson to view the evidence in the light most favorable to the verdict and presume that all inferences from the evidence were drawn in favor of the prosecution. It did so. The court correctly noted that the jury had been provided photographic evidence of the house and garage, from which it was entitled to draw conclusions about the necessary degree of relatedness. The appellate court was required to defer to that jury finding unless it was “so unsupportable as to fall below the threshold of bare rationality.” Coleman, 566 U.S. at 656.
Finally, the appellate court correctly applied Jackson in its allocation of the burden on post-conviction sufficiency review. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (recognizing the “heavy burden” on petitioner to rebut presumptions in favor of the verdict). Because petitioner made no showing that the photographic evidence was rationally incompatible with a rational jury finding that the garage and house were attached, federal habeas relief is unavailable.
2. The State Habeas Courts Reasonably Concluded that the Evidence Supported a Finding That Petitioner Discharged a Firearm
The superior court's resolution of this issue fully comports with Jackson and progeny, and provides an objectively reasonable basis for denial of the claim. This is not a complicated issue. The jury heard evidence that three eyewitnesses, including both victims, had identified petitioner as the shooter. It is quite true that all three denied at trial that they could identify the shooter, and that the identification evidence came in through the witnesses' prior statements to law enforcement investigators. However, the jury was entitled to credit the out of court statements and the results of the photo lineups. The jury saw videotape and heard audiotape of the identifications, and was support federal habeas relief. Id. at 67-68; see also Pulley v. Harris, 465 U.S. 37 (1984). The Supreme Court has rejected the argument that due process necessarily requires the exclusion of prejudicial or unreliable evidence. See Spencer v. Texas, 385 U.S. 554, 563-564 (1967); Perry v. New Hampshire, 565 U.S. 228, 245 (2012).
To the extent that the decision of the Court of Appeals can be considered the “last reasoned decision” within the meaning of Ylst, 501 U.S. at 806, the analysis is the same. The appellate court's mistaken application of a state procedural rule, see supra n. 8, does not constitute an unreasonable application of clearly established federal law within the meaning of § 2254(d). In any event, when a federal claim is denied by a state court on procedural grounds, the claim is reviewed de novo. Riley v. McDaniel, 786 F.3d 719, 723 (9th Cir. 2015). To the extent if any that the Court of Appeal's ruling could be considered a procedural bar creating a default, the court chooses to bypass that issue and reach the merits. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
To the extent this claim challenges the evidentiary sufficiency of the expert testimony to establish the primary activity of the gang and petitioner's active involvement in the gang, the governing federal precedent is that set forth above in relation to Claim One. See Jackson v. Virginia, supra.
To the extent petitioner objects to the introduction of hearsay through the expert witness, the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him.” The Confrontation Clause prohibits the admission of testimonial out-of-court statements by non-testifying individuals. Crawford v. Washington, 541 U.S. 36 (2004). Not all hearsay implicates the core concerns of the Confrontation Clause; the dispositive question is whether the statement is “testimonial.” Id. at 51. A statement is testimonial only when its primary purpose is the development of evidence to support a prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006); Michigan v. Bryant, 562 U.S. 344, 359 (2011).
C. The State Court's Ruling
The superior court ruled in pertinent part as follows:
Petitioner first claims that his confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 were violated by incompetent hearsay testimony solicited by the prosecutor from the gang expert witness Detective Robinson, regarding whether petitioner had actively participated in a criminal street gang and what the primary activities of the gang were. He also claims that the hearsay testimony violated People v. Kelly (1976) 17 Cal.3d 24.
Petitioner fails to attach a copy of reporter's transcript of any hearsay testimony from the expert, requiring denial of the claim (In re Harris, supra, 5 Cal.4th 813, 827 fn. 5). Nor does petitioner specify whether the expert was testifying about the basis of the expert's opinion, which is not introduced for the truth of the matter asserted and therefore is not hearsay or subject to Crawford (People v. Ramirez (2007) 153 Cal.App.4th 1422).
As for Kelly, that has been held not to apply to a gang expert's opinion in California (People v. Hill (2011) 191 Cal.App.4th 1104). Petitioner's argument under Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 597 and its progeny is irrelevant, as the California Supreme Court has long rejected the Daubert rule and instead continues to adhere to Kelly (People v. Leahy (1994) 8 Cal.4th 587).
For these reasons, the first claim fails (Bower, supra).
Petitioner also claims that the jury was not instructed on the “element” of active participation in a gang and that this “element” was not proven beyond a reasonable doubt. Petitioner, however, was not convicted of a Penal Code§ 186.22(a) substantive gang offense. Rather, a Penal Code § 186.22(b) gang enhancement was found true. Active participation in a street gang is an element of a Penal Code§ 186.22(a) substantive gang offense but not of a Penal Code§ 186.22(b) (1) gang enhancement (see generally In re Ramon T. (1997) 57 Cal.App.4th 201). Gang membership may be relevant to whether petitioner committed the charged offenses in furtherance of the gang, but it is not an element of the gang enhancement and did not need to be proven beyond a reasonable doubt. For this reason, this claim fails (Bower, supra).
Petitioner also claims that the evidence was insufficient to show the primary activities of the gang, for purposes of the gang enhancements. Petitioner fails to attach any reporter's transcript of the trial to support this claim, requiring its denial under Harris.
Further, petitioner admits that the gang expert Robinson did testify that the primary activities of the gang were drug sales, drug rip-offs, assault with a deadly weapon, assault, battery, homicide, burglaries, auto thefts, and attempted murders. Petitioner does not attach any reporter's transcript to show that the admission of this testimony violated People v. Gardeley (1996) 14 Cal.4th 605.
For these reasons, this claim fails (Bower, supra).
ECF No. 49-18 at 1-3.
D. Objective Reasonableness Under § 2254(d)
To the extent petitioner intends to challenge the trial court's exercise of its discretion under the California Evidence Code, he fails to present a cognizable claim for federal habeas relief. See Estelle, 502 U.S. at 67. To the extent that petitioner alleges admission of the expert testimony violated due process because the evidence was unduly prejudicial or otherwise inadmissible (including as propensity evidence), the claim fails because no U.S. Supreme Court precedent has found the admission of gang expert testimony in particular, or prejudicial evidence more generally, to violate due process. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) (if no Supreme Court precedent controls a legal issue raised by a habeas petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (Supreme Court has not clearly held that the “admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.”); Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (rejecting habeas challenge to gang expert's testimony because “there is no clearly established constitutional right to be free of an expert opinion on an ultimate issue”), overruled on other grounds as recognized in Emery v. Clark, 643 F.3d 1210, 1215 (9th Cir. 2011) (per curiam); Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (recognizing that U.S. Supreme Court has never held propensity evidence violates due process), cert. denied, 549 U.S. 1287 (2007).
To the extent that petitioner contends his confrontation rights were violated by the expert's reliance on or repeating of hearsay, the claim also fails for lack of clearly established federal law. No U.S. Supreme Court precedent establishes that testimony by a gang expert, similar to the testimony challenged here, is testimonial. Neither has the U.S. Supreme Court ever held that a gang expert's reliance on hearsay testimony violates a defendant's Confrontation Clause rights under Crawford. See Hill v. Virga, 588 Fed.Appx. 723, 724 (9th Cir. 2014) (“The Supreme Court has not clearly established that the admission of out-of-court statements relied on by an expert violate the Confrontation Clause.”); Lopez v. Davey, 2015 U.S. Dist. LEXIS 107553, 2015 WL 4776434, *18 (N.D. Cal. 2015) (“There is no clearly established Supreme Court authority that admission of hearsay statements relied on by an expert violates the Confrontation Clause.”); Hernandez v. Montgomery, 2020 U.S. Dis. LEXIS 171635 at *21, 202 WL 5606919 (C.D. Cal. 2020) (same).
Finally, to the extent petitioner alleges that the expert testimony fails to support the gang enhancement within the meaning of Jackson v. Virginia, supra, the claim fails because the testimony provided a rational basis for the jury to conclude both that petitioner was an active participant in the Nogales Crips and that the gang's primary activities included drug sales, drug rip-offs, assault with a deadly weapon, assault, battery, homicide, burglaries, auto thefts, and attempted murders.
For all these reasons, federal habeas relief is unavailable.
III. Claim Three: Failure to Transcribe Audiotape of Victim Statement Victim
A. Petitioner's Allegations and Pertinent State Court Record
Petitioner alleges that “[t]he trial court erred in its discretion by stipulating that court reporter needed not record victim Yerger statements on ‘audio tape' of interrogation by Detective Brown allegedly identifying Petitioner as perpetrator of charged offense.” ECF No. 1 at 85, 8688.
The trial record reflects the parties' stipulation at trial that the court reporter need not transcribe the Yeger interview as the audiotape was played. II RT 378 (ECF No. 49-6 at 82). A transcript of the interview, marked as People's Exhibit 72-A, was provided to the jurors and entered into evidence. Id. at 377 (ECF No. 49-6 at 81); III CT 748 (ECF No. 49-3 at 148). That transcript was included in the Clerk's Record on Appeal. III CT 760-769 (ECF No. 49-13 at 160169).
B. The Clearly Established Federal Law
A criminal defendant has a due process right to a “record of sufficient completeness” to ensure meaningful appellate review. Coppedge v. United States, 369 U.S. 438, 446 (1962). This constitutional obligation may be satisfied by the provision of a stenographer's transcript of the proceedings at issue, or by alternative methods which “place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise.” Draper v. Washington, 372 U.S. 487, 495 (1963); see also Mayer v. City of Chicago, 404 U.S. 189, 194195 (1971).
To the extent that petitioner challenges admission of the Yerger audiotape into evidence, evidentiary errors violate due process only when they render the trial as a whole fundamentally unfair. Estelle, 502 U.S. at 67.
C. The State Court's Ruling
The superior court ruled in pertinent part as follows:
Petitioner also claims that the introduction of Detective Brown's interview of victim Yerger was fundamentally unfair because the audiotape was inaudible and because the interview was not videotaped.
The court's underlying file belies the claim. The People's Exhibit 72A consisted of a transcript of the redacted 10-page interview by Detective Brown of victim Yerger, and a copy of that transcript is contained in the court's underlying file for the case as part of the case record. The transcriber did find portions of the tape to be unintelligible or inaudible; however, if the transcriber found those portions to be such, [it is] reasonably probable that any person listening to the tape would find those portions to be such. Nevertheless, a “digital video disc” of the interview of Yerger was contained in People's Exhibit 72 and admitted into evidence, thus was available to any reviewing court. As such, there was no fundamental unfairness in playing the audiotape to the jury.
Nor did petitioner have any right to have interviews of victims and witnesses videotaped (cf. People v. Marshall (1990) 50 Cal.3d 907 [no requirement that any Miranda waiver be tape-recorded; not required by due process or fundamental fairness principles]).
For these reasons, the claim fails (Bower, supra).
Petitioner also claims that the trial court erred in allowing the parties to stipulate that the court reporter need not transcribe the Yerger audiotape when it was played for the jury, because that failed to preserve it for appellate review.
As noted above, the statement was already transcribed and the transcription was placed in the court's underlying file for the case, thus was part of the record on appeal; in addition, because the tape itself was introduced into evidence as an exhibit, it was available to the reviewing courts on direct appeal. As such, the claim fails (Bower, supra).
ECF No. 49-18 at 3-4.
D. Objective Unreasonableness Under § 2254(d)
The state court reasonably rejected petitioner's fundamental fairness argument as to admission of the Yeger interview. The jury had the opportunity to listen to the interview and to review a transcript. Any audibility problems were properly considered by jurors in deciding what weight to give the evidence. Petitioner has identified nothing specific about the audio quality which resulted in unfairness. The substance of the interview involved Yeger's identification of petitioner as the shooter, which has been discussed above. Two other eyewitnesses, including the other victim, also identified petitioner as the shooter. In light of the trial record as a whole, the allegation of fundamental unfairness fails.
The state court also reasonably rejected the claim that petitioner's rights were violated by the failure of the court reporter to transcribe the interview while the audiotape was being played for the jury. The interview had been transcribed prior to trial, the transcript was in evidence, and the transcript was made part of the record on appeal by inclusion in the Clerk's Transcript. Accordingly, petitioner was not denied a “record of sufficient completeness” to ensure meaningful appellate review. See Coppedge, 369 U.S. at 446. This claim accordingly fails under any standard of review.
IV. Claim Four: Ineffective Assistance of Counsel
A. Petitioner's Allegations and Pertinent State Court Record
Petitioner alleges that his trial counsel provided “insufficient assistance of counsel where counsel failed to present favorable evidence by not investigating potential claims [and] counsel failed to object to prosecutorial misconduct.” ECF No. 1 at 85, 89. As to failure to investigate and to present favorable evidence, petitioner alleges as follows:
• Counsel failed to investigate victim Yeger's culpability for shooting at petitioner, and to call homicide detective Woods to testify about outstanding evidence that would support that theory, id. at 93;
• Counsel failed to call the crime scene investigator/photographer to testify (1) that no physical evidence showed shots were fired into the garage, and (2) that shots were fired from the garage, id. at 93-94;
• Counsel failed to provide a crime scene expert and reconstruction of the scene to show that Yeger was shot not from the Mercedes but when the occupants of the garage shot out from the garage at the Mercedes, id. at 94.
Regarding counsel's failure to object to prosecutorial misconduct, petitioner alleges that it was misconduct for the prosecutor to elicit an opinion on the ultimate issue from the gang expert. Id. at 89, 100-102. He also alleges that the prosecutor committed misconduct by “diluting his burden of proving the elements of the charged offense.” Id. at 103 (spelling corrected). The supporting facts include allegedly prejudicial statements that the judge and the prosecutor made during jury selection about the meaning of the reasonable doubt standard, and the prosecutor's discussion in closing argument about reasonable doubt and “abiding conviction.” Id. at 103-105.
B. The Clearly Established Federal Law
To establish a constitutional violation based on ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an adverse effect on the defense. There must be a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 693-94. The court need not address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id.
C. The State Court's Ruling
The superior court ruled in pertinent part as follows:
Petitioner also claims that trial counsel was ineffective in failing to present favorable evidence such as by calling Detective Woods to testify about outstanding evidence or the crime scene investigator who responded to the crime and photographed the scene, in failing to object to prosecutorial misconduct during opening and closing statements, failing to make timely objections, in failing to preserve issues for appellate review, and in failing to object to the prosecutor mischaracterizing the evidence and referring to facts not supported by the evidence.
Petitioner fails to give any further detail or to support the claim with documentary evidence, requiring denial under Swain, supra, and Harris, supra.
ECF No. 49-18 at 5.
D. Objective Unreasonableness Under § 2254(d)
To the extent the state courts rejected this claim pursuant to state procedural rules, the claim is arguably procedurally defaulted and cannot be considered here absent a showing of cause and prejudice. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). Bypassing that issue, see Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), relief is unavailable under any standard of review because petitioner fails to allege a prima facie case of ineffective assistance.
See ECF No. 49-18 (superior court order) at 5; ECF No. 49-10 (Court of Appeal order) at 1.
As for the allegations of failure to investigate and present exculpatory evidence, petitioner's claim fails for lack of any prejudice showing. Petitioner provides no specific allegations, let alone any witness declarations, to show what testimony Detective Woods, the CSI investigator, or a defense forensic expert would have provided. Accordingly, the claim is purely conclusory and cannot support relief. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (no ineffective assistance of counsel for failing to retain expert where petitioner did not offer evidence that expert would have testified); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (speculation about unpresented evidence, including expert testimony, is not enough to establish prejudice from ineffective assistance); Hendricks v. Calderon, 70 F.3d 1032, 1042 (1995) (absent a specific account of what beneficial evidence would have been revealed by further investigation, petitioner cannot meet the prejudice prong of Strickland).
Regarding the allegations that counsel failed to object to prosecutorial misconduct, the record does not reflect any objectionable misconduct and counsel therefore cannot have performed unreasonably. As for the presentation of the gang expert's testimony, this was permissible under California law and no clearly established federal law forbids the elicitation of such an opinion. See Briceno, 555 F.3d at 1077. As for the prosecutor's allegedly improper statements about the burden of proof, none of the identified statements threatened the fairness of the trial such that a defense objection was required. Moreover, both in jury selection and in closing argument, the defense had the opportunity to address the burden of proof and correct any misimpression. Reasonable counsel could well have decided objections were unnecessary given the opportunity to independently address the matter.
Moreover, petitioner cannot establish any prejudice from the failure to object to the prosecutor's alleged misconduct. The jury was correctly instructed on the burden of proof, the elements of the gang enhancements, and the evaluation of expert opinion testimony. In light of O 1 the evidence presented and the trial record as a whole, there is no reasonable likelihood that defense objections on these issues would have resulted in a more favorable verdict.
For all these reasons, petitioner has failed to present a prima facie case under Strickland and habeas relief is unavailable.
V. Claim Five: Denial of Expert Witness Appointment
A. Petitioner's Allegations and Pertinent State Court Record
Petitioner alleges that his rights were violated by the trial court's denial of a pretrial motion for appointment of an expert witness at public expense. ECF No. 1 at 111, 112-114. No details are provided regarding the expert witness petitioner sought to retain, or what evidence that person could have provided.
The Clerk's Transcript on Appeal contains what appears to be a form motion for appointment of an expert, partially filled in by petitioner in pro se. III CT 663-673 (ECF No. 493 at 63-73). This motion does not specify the expert to be retained, or the field of expertise required. Id. The motion was denied. I CT 35 (ECF No. 49-1 at 46) (minute order 7/10/07).
B. The Clearly Established Federal Law
The Constitution guarantees to criminal defendants the right to present a defense. Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986). When an indigent criminal defendant demonstrates that his sanity at the time of the offense is to be a significant fact at trial, he is entitled to the appointment of a defense mental health expert. Ake v. Oklahoma, 470 U.S. 68, 83 (1985); McWilliams v. Dunn, 582 U.S. 183 (2017). Outside the mental health context, the Supreme Court has not clearly established a constitutional right to the appointment of experts. Indeed, the Supreme Court has expressly declined to decide whether indigent criminal defendants have a constitutional right to investigative and ancillary services. See Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985).
C. The State Court's Ruling
The superior court ruled in pertinent part as follows:
Petitioner also claims that the trial court erred in denying Petitioner's pretrial motion for an expert witness on gangs.
A habeas corpus petition must state with particularity the facts upon which the petitioner is relying to justify relief (In re Swain (1949) 34 Cal.2d 300), and be supported by reasonably available documentary evidence or affidavits (In re Harris, supra, 5 Cal.4th 813, 827 fn. 5). Petitioner fails to do either, requiring denial of the claim.
ECF No. 49-18 at 5.
D. Objective Unreasonableness Under § 2254(d)
To the extent the state courts rejected this claim pursuant to state procedural rules, it is procedurally defaulted and cannot be considered here absent a showing of cause and prejudice. Coleman, 501 U.S. at 729. Bypassing that issue, see Franklin, 290 F.3d at 1232, relief is unavailable because the U.S. Supreme Court has never announced the constitutional right that petitioner asserts. See Wright, 552 U.S. at 125-26.
See ECF No. 49-18 (superior court order) at 5; ECF No. 49-10 (Court of Appeal order) at 1.
It appears that the motion for appointment of an expert at public expense was filed by petitioner in pro se during the brief period that he was exercising his self-representation rights under Faretta. See III CT 663-673 (ECF No. 49-3 at 63-73). The motion did not specify the sort of expert that petitioner sought or why expert assistance was needed; there are no such allegations in the petition. In Caldwell v. Mississippi, supra, the U.S. Supreme Court held that the trial court's refusal to appoint various experts to assist the defendant did not deprive him of his constitutional rights because the defendant had offered the trial court no more than “undeveloped assertions” that the requested assistance would be beneficial. Caldwell, 472 U.S. at 323 n. 1. The same is true here. Caldwell thus precludes relief on this claim.
CONCLUSION
For all the reasons explained above, the state courts' denial of petitioner's claims was not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).