The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se,*fn1 has filed a petition pursuant to 28 U.S.C. § 2254. In 2002, petitioner was convicted in Sacramento County Superior Court of two counts of robbery (Cal. Penal Code § 211) with enhancements for the offenses having been committed to benefit a street gang (Cal. Penal Code § 186.22(b)(1)) as well as for being armed with a firearm (Cal. Penal Code § 12022 (d)),*fn2 and was sentenced to an 18-year term in state prison. CT 24, 609-610.*fn3
Petitioner challenges his conviction/sentence on the following grounds: 1) insufficient evidence to support the gang enhancements under Cal. Penal Code § 186.22 (b); 2) trial court violated petitioner's due process rights under the Fifth, Sixth and Fourteenth Amendments in failing to define "primary activities" as that term is used in the gang enhancement statute; 3) trial court violated petitioner's Fourteenth Amendment right to due process by admitting prejudicial and inadmissible gang expert testimony and other gang evidence; 4) trial court erred by failing to give a promised limiting instruction regarding the gang evidence and petitioner was denied effective assistance of counsel by the failure to ensure the instruction was given; 5) trial court committed prejudicial error and violated petitioner's right to due process and trial by jury under the Fourteenth Amendment by including witness intimidation as one of the predicate offenses in the gang enhancement instructions given to the jury, and was denied effective assistance of counsel when counsel failed to object to the instruction; 6) trial court erred in qualifying Officer Gracia as an expert and allowing her to testify as to legal conclusions; 7) petitioner was denied his Sixth Amendment right to counsel at a critical stage of the proceedings when the trial court failed to appoint counsel to investigate his claim that he was denied effective assistance of counsel at trial as a basis for a new trial motion; 8) petitioner was denied his federal constitutional right to a jury trial and the court acted in excess of its jurisdiction when petitioner was sentenced to consecutive terms based on facts beyond those found true by the jury under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The court's independent review confirms the facts of this case have been accurately set forth in the unpublished Third District Court of Appeal opinion on petitioner's direct appeal; any modifications this court makes are footnoted:
On June 1, 2001, at approximately 2:40 p.m., the New American-Asian Market (Asian Market) was robbed. At approximately 6:30 or 7:00 p.m. on the same day, the Express Market was robbed.
Dang Lor, the owner of the Asian Market, testified that a young, Black male, later identified as 14-year-old Jesse Davis, entered the store, purchased some candy, and "browse[d]" for nearly an hour. Then, two other people came in the store but did not speak to Lor or attempt to buy anything. Davis looked toward the two individuals, then pulled out a gun, pointed it at Lor and told Lor to give him "the money." Davis put the money in a plastic bag provided by Lor and, as Davis ran out of the store, Lor heard a gunshot. The two individuals who had entered the store just before the robbery said nothing to Lor and, about one minute later, walked out.
Lor provided a description to a police officer of the two individuals, which matched defendants' appearance in several respects. When Lor was shown photographs of defendants approximately two months after the robbery, he identified them as the two individuals who entered the store before the robbery. However, at trial, Lor could not identify defendants and denied providing the police officer with a description of the two individuals.*fn4 Gurmail Singh, part owner of the Express Market, reported he was robbed at gunpoint by a young, Black male, later identified as Davis. According to Singh, *Davis* went in and out of the store three times, and used the phone outside the store, before approaching Singh at the cash register, taking out a gun and asking for money. Davis shot Singh during the robbery. The Express Market was equipped with video cameras, and a videotape of the robbery was played for the jury.
Anthony Maddox testified that he saw a Black male on the phone outside the Express Market shortly before the robbery. He also saw a blue, mid-sized, older model car parked on the side of the market. Shortly after the Express Market robbery, Daniel Newrider, who lived in the vicinity of the market, told a police officer that he noticed "[a] large 1970's white-over-blue Cadillac" parked in a field about a block from the market. He saw the car traveling toward the market and then saw an individual running in the opposite direction. Next he saw the car driving after the individual. Newrider gave the police officer a description of the individual, which was generally consistent with a description provided by Maddox of the Black male he saw outside the market on the phone. At trial, Newrider denied describing the car to the officer and denied providing a detailed description of the individual he saw running down the street.
Davis was arrested on June 6, 2001, after relatives confirmed his identity in a surveillance photograph. Davis acknowledged he was the individual in the surveillance photograph and indicated that two other people-"Edward and Kenny"-were also involved in the robbery. Eventually, Davis admitted that defendants, not "Edward and Kenny," were with him when he committed the robberies, explaining that he had lied about their identities because he was afraid "they would beat me up and stuff."
Davis testified he was at defendants' house at around noon on June 1, 2001, when Henry asked him if he wanted to make some money. Later, Henry told Davis they were "going to rob a store." Henry gave Davis a gun and instructed Davis to point the gun and ask for money. Henry said that Herman and he would wait in the car while Davis went into the store. They left defendants' house in Herman's white-topped, blue Cadillac, with Herman driving, and went to the Asian Market. They parked across the street from the market, and Henry instructed Davis to point the gun at the ground and "pull one shot" during the robbery.
Davis testified that when he entered the market, he walked around "buying stuff" because he was nervous. According to Davis, after about 30 minutes, defendants entered the market and Davis committed the robbery. Davis fired the gun in the doorway of the store, then ran back to the car and waited for defendants, who arrived after about a minute. Davis and defendants got in the car and returned to defendants' house, where they split up the money. At defendants' house, Henry asked Davis whether he wanted "to go do another one," and Davis agreed. After an "hour or two," they drove to the Express Market in Herman's car with Herman driving. Henry instructed Davis to "do the same thing as you did in the first store and then pull off some shots." Henry also told Davis to "shoot one of the people." Defendants let Davis out about a block away from the store and drove away. Davis entered and exited the store several times because he was nervous. Eventually, he pulled out the gun and told the clerk "to give [him] the money." Davis fired the gun twice, his hand jerking up when he fired the second time such that he shot Singh. Davis ran out of the store and around the corner, where he was picked up by defendants, who came from behind in the car. They returned to defendants' house, where they split up the money, and Davis returned the gun to Henry.
Davis testified that Henry and he were members of a gang called the Nogales Gangster Crips, but that he did not believe Herman was a member of the gang. According to Davis, Henry was senior to him in the gang, and he was afraid of Henry and felt pressure from him to commit the robberies. Davis admitted he had beat up another individual when told to do so by Henry, explaining he had to beat him up "to earn respect in [the] gang." According to Davis, after the robbery charges were filed, Henry "socked [him] in [his] face" and threatened him for talking to the police. Davis was afraid of the Nogales Gangster Crips because "snitches" "[g]et killed."
Davis acknowledged that a gang member earned more respect by committing murder and robbery. He testified he had to shoot someone during the second robbery "to earn a stripe," which, as later explained by a gang expert, meant "doing certain things" to gain status within the gang. Davis testified he pleaded guilty to the robberies and agreed to testify at defendants' trial in exchange for a sentence of 12 years in state prison. Potentially, Davis could have received a life sentence.
Five days after the robberies, Herman was interviewed by a Sacramento police detective. Initially, Herman said that on the day of the robberies, he went fishing, worked on his car, picked up something to eat, then remained home for the rest of the evening. When Herman was told that witnesses had seen a vehicle matching his car's description behind the Express Market, Herman said there was a car that looked just like his that was known to be in the area. Next, Herman claimed that, "the following morning," "he found his car and house ransacked and his keys were missing from the car." When the detective continued to "push him," Herman reported that "Black" (identified by Henry as "Jesse") had held him at gunpoint to rob the Express Market. Herman said that Black left him in the car for "like five or six seconds" to go into the store and commit the robbery. According to Herman, Black threatened to shoot his mother. Herman said that after the robbery, Black returned to the car and made Herman "ride real far" and drop him off.
Five days after the robberies, Henry also made a statement to a police detective. Henry said that on the day of the robberies, Black wanted to "hang out" with Herman and him but they had refused. Henry initially denied he had gone to the Asian Market that day. However, during a subsequent interview two days later, after being taken into custody for questioning, Henry admitted he had gone to the Asian Market in Herman's car with Herman and Joe Williams. According to Henry, he was in the market to buy a soda when Black came in "waving a gun" and robbed the store. Henry said Williams and he walked home together from the market. Approximately two weeks after providing this statement, Henry and Herman were arrested after they fled from police officers into a family residence. A "[w]hite-over-blue older Cadillac," which was registered to Herman, was parked in the driveway of the adjacent home.
People v. Hill, 2005 WL 1534292, at *1-3 (Jun 30, 2005) (not reported)***(also lodged by respondent as Document 1*, Exhibit A.*
Claim 1 - Insufficient Evidence of Primary Activity or of Specific Intent Legal Standard
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Under Jackson, the court reviews the entire record when the sufficiency of the evidence is challenged on habeas. Adamson v. Ricketts, 758 F.2d 441, 448 n. 11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev'd, 483 U.S. 1 (1987). It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. "The question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could have reached the same conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991).
If the trier of fact could draw conflicting inferences from the evidence, the court in its review will assign the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). The fact that petitioner can construct from the evidence alternative scenarios at odds with the verdict does not mean that the evidence was insufficient, i.e., that no reasonable trier of fact could have found the conviction scenario beyond a reasonable doubt.
In reviewing the sufficiency of the evidence supporting a conviction, we search the record to determine "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged."
United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986). The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict. United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982); United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981), overruled on other grounds, United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc).
United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991)(emphasis added).
Superimposed on these already stringent insufficiency standards is the AEDPA requirement that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).
In his first claim, wherein petitioner contends that there was insufficient evidence to support the gang enhancements under Cal. Penal Code § 186.22 (b), petitioner avers that there was not "substantial evidence" presented to the jury pursuant to the instruction that it had to "find that the commission of robbery, unlawful homicide, witness intimidation and/or mayhem was a primary activity of the group, " that is, "that these crimes were consistently and repeatedly committed by the group" to support the "necessary primary activities finding." Petition, p. 5.
Because the petition for review received a postcard denial by the state supreme court, i.e., that court did not offer an explanation of its reasoning, the undersigned "looks through" to the opinion of the state court of appeal, "the last reasoned decision." Ylst v. Nunnemaker, 501 U.S. 797, 803-804, 111 S.Ct. 2590, 2594-2595 (1991). The state appellate court*fn5 addressed this claim in its unpublished decision, as follows:
[Cal. Penal Code] Section 186.22, subdivision (b)(1), provides for a sentencing enhancement when defendant "is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Gang enhancements were found true on each count of robbery as to both defendants. Defendants raise several challenges to the sufficiency of the evidence to support the jury's finding on these enhancements.
A. Evidence of Primary Activities
Defendants claim there was insufficient evidence that one of the Nogales Gangster Crips's primary activities was the commission of offenses enumerated in the gang statute. We reach a contrary conclusion.
To establish the existence of a criminal street gang, there must be proof that one of the gang's primary activities is the commission of criminal acts enumerated in the gang statute. (§ 186.22, subd. (e).) The 25 enumerated offenses in section 186.22 include robbery (subd. (e)(2)), unlawful homicide (subd. (e)(3)) and mayhem (subd. (e)(16)). "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, 109 Cal.Rptr.2d 851, 27 P.3d 739 ( Sengpadychith ).) A gang's primary activity also may be established through expert testimony. ( Ibid.) In making its determination, a jury may consider "prior conduct or acts committed at the time of the charged offenses." ( People v. Galvan (1998) 68 Cal.App.4th 1135, 1140, 80 Cal.Rptr.2d 853; accord, Sengpadychith, at p. 323, 109 Cal.Rptr.2d 851, 27 P.3d 739.)
Here, Officer Gracia testified that one of the goals of the Nogales Gangster Crips was "to enhance the fear of them in the community." Gracia testified the robberies would further this goal. And a reasonable inference could be made that the two prior gang offenses described by Gracia-a mayhem and a murder-were committed with a similar purpose. Based on this evidence, the jury could determine that the way in which the Nogales Gangster Crips accomplished their goal of instilling fear in the community was by committing offenses enumerated in the gang statute. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1464-1465, 119 Cal.Rptr.2d 272 ( Duran ) [sufficient evidence of primary activities requirement based on testimony that " 'gang's primary activity was 'putting fear into the community,' "and that they committed various statutorily enumerated offenses toward this end].) Gracia's testimony that she had investigated approximately 15 other offenses enumerated in the gang statute that were committed by members of the Nogales Gangster Crips was substantial evidence that members of this gang "consistently and repeatedly have committed criminal activity listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at p. 324, 109 Cal.Rptr.2d 851, 27 P.3d 739, italics omitted.)
Defendants claim that Officer Gracia only testified about "two crimes that were committed by [Nogales Gangster Crips] members, neither of which was established as a 'primary activity.' ["] However, the gang statute does not require that one particular enumerated offense be established as a gang's primary activity. It is sufficient if the evidence establishes that the gang's members "consistently and repeatedly have committed criminal activity listed in the gang statute." ( Sengpadychith, supra, 26 Cal.4th at p. 324, 109 Cal. Rptr.2d 851, 27 P.3d 739, italics omitted.) Thus, a combination of different offenses specified in the statute suffices as long as such conduct constitutes a primary activity of the gang.
A claim of insufficient evidence does not warrant reversal "unless it appears ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].[" ' "] ( Duran, supra, 97 Cal.App.4th at p. 1457, 119 Cal.Rptr.2d 272.) We conclude there was sufficient evidence for the jury to infer that a primary activity of the Nogales Gangster Crips was committing offenses enumerated in the gang statute.
People v. Hill, 2005 WL 1534292, at *6-7 [emphasis in original].
In Sengpadychith, supra, 26 Cal.4th at 323, the California Supreme Court, citing Cal. Penal Code § 186.22(f) (with emphasis added by that court), set forth the STEP Act's*fn6 definition of a criminal street gang as: any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [ certain enumerated] criminal acts ..., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
The California Supreme Court made additional comments regarding how to establish the "primary activities" of a criminal street gang:
Nothing in this statutory language prohibits the trier of fact from considering the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes. Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities. Both past and present offenses have some tendency in reason to show the group's primary activity (see Evid. Code § 210) and therefore fall within the general rule of admissibility (id., § 351). Insofar as the Court of Appeal's decision in In re Elodio O., supra, 56 Cal.App.4th 1175, allowed evidence only of past offenses, we disapprove it.
As we just discussed, evidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang. Would such evidence alone be sufficient to prove the group's primary activities? Not necessarily. The phrase "primary activities," as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's "chief" or "principal" occupations. (See Webster's Internat. Dict. (2d ed. 1942) p. 1963 [defining "primary"].) That definition would necessarily exclude the occasional commission of those crimes by the group's members. As the Court of Appeal cautioned in People v. Gamez (1991) 235 Cal.App.3d 957, 970-971 [286 Cal.Rptr. 894], disapproved on another point in Gardeley, supra, 14 Cal.4th 605, 624, footnote 10: "Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22...requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s] ...Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the  enumerated crimes found within the statute."
Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity, listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on "his personal investigations of hundreds of crimes committed by gang members," together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)
Sengpadychith, supra, 26 Cal.4th at 323-324 [emphasis in original]*.
As discussed by the California Supreme Court in Sengpadychith, in People v. Gardeley,14 Cal.4th 605, 59 Cal.Rptr.2d 356 (1997), the California Supreme Court found that testimony of a police gang expert could be sufficient evidence of "primary activity":
Detective Boyd's testimony also provided much of the evidence necessary to establish that the Family Crip gang met the STEP Act's definition of a "criminal street gang..." (§186.22, subd. (f) [defining a criminal street gang as an "ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more" criminal acts enumerated in subdivision (e) of the statute, and which has a "common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."].) Boyd testified that defendants Gardeley and Thompson admitted to membership in the Family Crips, and that Gardeley had been a member of the gang since 1983. Boyd also expressed his expert opinion that the primary activity of the Family Crip gang was the sale of narcotics, but that the gang also engaged in witness intimidation. (These are two of the offenses enumerated in subdivision (e) of section 186.22.) Boyd based this opinion of conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.
14 Cal.4th at p. 619-620, 59 Cal.Rptr. at 365.
As set forth by the California Court of Appeals, Officer Gracia in the instant matter provided police gang expert testimony at petitioner's trial:
Laura Gracia, a Sacramento police officer, testified as an expert on North Sacramento "Black gangs." Officer Gracia testified about a mayhem offense that occurred in 1996, in which defendants' brother Kenny, a member of the Nogales Gangster Crips, "t[ook] a bite out of" a suspected rival gang member's face. Gracia had also investigated a homicide committed in 2000 by three members of the Nogales Gangster Crips against an individual associated with a rival gang. In addition to these offenses, Gracia had investigated "[p]robably" 15 offenses enumerated in the gang statute that were committed by members of the Nogales Gangster Crips. (See § 186.22, subd. (e)(1)-(25).)
Officer Gracia interviewed Davis after his arrest. Davis told Gracia that both Herman and Henry were members of the Nogales Gangster Crips. Joe Williams, another validated member of the Nogales Gangster Crips, had also reported that both defendants were members of the Nogales Gangster Crips. In addition, defendants had been identified in the company of other members of the Nogales Gangster Crips. Based on this information and the fact that the robberies were "gang-related," defendants' membership in the Nogales Gangster Crips had been "validated," a procedure utilized by law enforcement in which gang membership is determined based on specified criteria.
Officer Gracia testified that gang members gained status by being violent and "ruthless," thereby enhancing the reputation of the member and the gang. According to Gracia, one of the goals of the Nogales Gangster Crips was "to enhance the fear of them in the community." When asked whether the robberies furthered the interests of the Nogales Gangster Crips, Gracia testified that the robberies would enhance the gang's reputation for violence, which would prevent witnesses and other gang members from reporting the gang's criminal activity.
People v. Hill, 2005 WL 1534292, at *3-4.
Police Detective Laura Gracia was qualified by the court as an expert in North Sacramento area ethnic black gangs. RT 897-898.*fn7 As respondent observes (Answer, pp. 21-22*fn8 ), Detective Gracia testified that the Nogales Gangster Crips (NGC) had been a criminal street gang since the mid-1990's; that the predicate criminal offenses establishing NGC as a criminal street gang included a 1996 mayhem conviction of a validated NGC member, Kenny Hill (petitioner's older brother), involving an assault by Kenny Hill and other NGC members on Orlandus McMurray, "a suspected blood" (or rival gang member),*fn9 wherein K. Hill took a bite out of McMurray's face, as well as juvenile convictions for a May, 2000, incident between NGC gang members and individuals associated with the Del Paso Height Bloods, involving an assault with a deadly weapon by a validated NGC member, named Rashawn Hensley*fn10 (husband of petitioner's sister, Sherry Hill),*fn11 and for homicide involving two other validated NGC members, Tavaris Nguyen and Durel Foster, for the death of Hector Rosales. RT 919-925, 1057, 1067, 1071-1072, 1074-1075, 1137-1138, 1159-1162, 1164, 1168-1169. Moreover, Gracia testified that she had investigated "a variety of different crimes...involving Nogales Gangster Crips," estimating, as noted in the excerpt of the Third DCA opinion above, that she had done such NGC investigations that would fall within the relevant Penal Code section (i.e., § 186.22(e))*fn12 "[p]robably another fifteen times." RT 1057-1058. Gracia testified that there were eight different criteria set forth by the police department by which an individual can be evaluated by a gang investigator to determine if he is a gang member and that meeting two of those criteria will result in a person's being considered validated as a gang member; among the criteria are whether or not a person admits he is a gang member; whether he is tattooed with a known gang tattoo or dresses in a gang color; whether or not he is frequently in the company of other validated gang members; whether written correspondence he sends or receives while in custody has telltale indicators; whether or not the individual has participated in gang-related crimes as enumerated under Cal. Penal Code § 186.22; whether two members of the same gang say that another person is also a member; whether or not photographs show a person posing with their gang signs thrown up. RT 1058-1062. She testified that the armed robberies at issue herein were qualifying criminal street gang crimes and testified as to the process and criteria by which she validated petitioner, his co-defendant (and brother), Henry Hill, and Jessie Davis, as NGC members. RT 1062, 1064-1068, 1070, 1077-1078, 1086, 1090-1092, 1098, 1103-1104, 1109, 1112, 1128-1129, 1141.
Specifically, with respect to petitioner, Gracia stated that she had validated him as a member of NGC based on three of the criteria set forth above: that he was involved in a gang-related crime; that he was identified as being "in the company of other identified gang members," both during the crimes at issue in this petition, as well as by way of additional police contacts; that he was identified by two or more NGC gang members, Jessie Davis and Joe Williams, as a member of their gang. RT 1077-1078, 1112. Gracia, the police gang expert, also offered her opinion that, like the previous mayhem and murder identified as gang-related, the instant robberies would promote the goal of enhancing and bolstering the reputation of the NGC for violence, induce fear and serve to intimidate potential witnesses, including other gang members, from providing information about the crimes. RT 1158-1162. Although Gracia testified under cross-examination that she was not aware of witness intimidation in this case, she did "seem to recall" reading a police interview transcript wherein Jessie Davis indicated that he had been threatened by either petitioner or his brother after a court proceeding. RT 1130.*fn13 It was also before the jury that Gracia had conceded that Jessie Davis had lied at least at the outset of his interviews with police, including herself. RT 1131.
Further evidence provided to the jury came from Jesse Davis, who, when asked at what point he realized that being an NGC member would involve him in criminal activity, replied "[a] couple of days after I got jumped in." RT 601-602, 604. He expressed fear of being hurt or killed, even in jail, by members of the NGC because he would be labeled a "snitch." RT 607-609, 615, 619-620, 748-749. He testified that he had told a detective that Henry Hill (petitioner's co-defendant), after court while in a jail cell, had "socked me in my face and said, Why you talking to the police and stuff, you snitch, dead homie delango (ph), I'm going to have everyone kill you in the pen." RT 618-619. Davis testified that he understood the expression "putting in work for the gang" to mean "robbing stores, doing drive-bys on other rival gang members and stuff like that." RT 666. When Davis at first denied that he was being pressured to "put in work for the gang," the prosecutor read from the transcript of a police interview where Davis admitted that he had been "scared, nervous" about committing the robberies but had been pressured by petitioner and his brother to do the robberies. RT 666-667 (ref. Aug. CT 154). When his response to his February, 2002 police interview was read back to him, Jessie Davis conceded that he had earlier affirmed his understanding that both Henry and Herman (petitioner herein) could tell him what to do, and if he did not do what he was told, they could call others up to shoot him up or shoot up his house. RT 665 (ref. Aug. CT 166).
While as set forth in the state appellate court opinion, Jessie Davis testified at the trial that he did not believe petitioner was a member of the NGC, it is also true that Davis' statement in the police interview were read back?? In any event, respondent (Answer, p. 22) is correct that the evidence presented was constitutionally sufficient and that a jury could reasonably have concluded that one of the NGC's primary activities was the commission of offenses enumerated in the criminal gang statute.
Petitioner further maintains that the evidence was insufficient to show that he committed the robberies "with the required specific intent to promote, further or assist in criminal conduct by the group's members." Petition, p. 5. In support of this contention, petitioner argues that no evidence was presented: that he knew the others involved in the charged robberies were gang members; or that "gang names were called out or gang graffiti placed at or around the robbed stores during or after the robberies"; or that gang clothing was worn during the robberies. Id.
In rejecting this claim, the state appellate court reasoned as follows: Herman claims there was insufficient evidence that his participation in the offenses involved a specific intent "to promote, further, or assist in any criminal conduct by gang members," a requirement under the gang enhancement. (§ 186.22, subd .(b)(1).) Not so. Herman had been validated as a member of the Nogales Gangster Crips. Both Henry and Davis were also validated members of this gang. This, combined with Davis's testimony, established that Herman knowingly assisted gang members to commit two robberies by driving his accomplices to commit the offenses. "[D]efendant's intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent." ( People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199, 5 Cal.Rptr.3d 615 ( Morales ).)
During oral argument, Herman cited Garcia v. Carey (2005) 395 F.3d 1099 as authority that the gang enhancement applies only if the charged offense was committed with the specific intent to assist other criminal conduct by gang members. It is true that, in Garcia, the court affirmed the district court's granting of habeas relief as to the gang enhancement because the record did not " 'support an inference that [the defendant] robbed [the victim] in order to facilitate other gang related criminal operations within [the community].' " ( Id. at p. 1103.) We note, however, that " '[f]ederal decisional authority is neither binding nor controlling in matters involving state law.' " ( Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55, 134 Cal.Rptr.2d 420.) We do not find the reasoning in Garcia persuasive.
There is no requirement in section 186.22, subdivision (b), that the defendant's intent to assist criminal endeavors by gang members must relate to criminal activity apart from the offense being committed. To the contrary, the specific intent required by the statute is "to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b), italics added.) Accordingly, the appellate court in Morales, supra, 112 Cal.App.4th at pages 1198-1199, 5 Cal.Rptr.3d 615, held there was sufficient evidence of the requisite intent where the defendant intended to commit the charged crimes in association with individuals he knew were gang members. Accordingly, we reject Herman's argument that proof beyond this was required in his case.
People v. Hill, 2005 WL 1534292, at * 7.
In Garcia v. Carey, 395 F.3d 1099, 1103 (9th Cir. 2005),*fn14 cited above and rejected by the state appellate court, something which this court is not at liberty to do, the Ninth Circuit panel found that while there was evidence that Garcia was a gang member who had robbed his victim on gang turf and that a gang expert had testified that the gang was turf-oriented, there was no evidence to indicate the "robbery was committed with the specific purpose of furthering gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime." The Garcia Court found the expert testimony to have been "singularly silent on what criminal activity of the gang was intended or furthered by the robbery...." Id. Such is not the case here, where the gang expert, Det. Gracia, testified that gangs generally engage in the same types of crimes, that more junior gang members may be required to commit crimes at the behest of older ones, that gang members gain respect and status in their gang by committing violent acts, that a gang's reputation is enhanced if a gang member is involved in violent crimes because it makes people more fearful of gang reprisals and less likely to testify against a gang member, that failure to abide by a gang's "code of ethics" can result in violence against a member or his family, that a goal of NGC members is to enhance the community's fear of them. RT 903-905, 907-908, 1162. She testified that rival gang members had informed her that to be a recognized NGC member, one had to shoot or shoot at someone, information that was confirmed by an NGC member to her. RT 1163-1164. Jessie Davis testified Henry Hill gave Jessie the gun and that petitioner drove the car with his brother, Henry, and Jessie to the sites of both robberies and Henry instructed Jessie to shoot during both robbery incidents, and specifically told him before the second robbery to shoot someone, which Jessie knew he had to do to earn a "stripe." RT 558, 560, 564-565, 576, 579-580, 675. As noted by the state court of appeal (see below), gunfire was involved at the scene of the both robberies, and in the second, the victim was actually shot, even though no resistance was offered at either location. Jessie testified that within a couple of days of having been "jumped in," that he knew he would be involved in criminal gang activity, having heard gang members talk about criminal gang activities. Answer, p. 23, citing RT 602-603. Jessie also testified that he was a relatively new member of NGC at the time at issue ("couple of months"), a BG or "baby gangster," that petitioner's co-defendant brother, Henry Hill, was a more senior member with more authority, a YG (or "young gangster");*fn15 that the same person who jumped him into the NGC, Andrew Stigall, also introduced Jesse to petitioner and his brother, Henry; that he felt pressured to commit the robberies (although at one point he said he felt the pressure specifically from Henry, he later conceded that he felt pressure from both petitioner and Henry); that he had been threatened by Henry when he had previously failed to beat up someone for NGC; that a member of NGC earned stripes, or respect, by committing murder and robbery. RT 588-590, 593-596, 599, 666-668, 674. In combination with the gang expert witness's testimony, this court finds that the evidence was sufficient for a jury to have reasonably have concluded that the robberies were committed with the requisite specific intent to promote, further or assist in criminal conduct by the group's members.
Petitioner also maintains that there was insufficient evidence that the charged robberies were committed "for the benefit of, at the direction of, or in association with the group," and that the gang expert's testimony on this issue was "generalized speculation" unsupported by evidence. Petition, p. 5.
To this claim, the state appellate court stated:
Herman also claims there was insufficient evidence that the robberies were committed "for the benefit of, at the direction of or in association with a criminal street gang" because Officer Gracia's opinion in this regard was "highly speculative." We disagree.
"[W]hether and how a crime was committed to benefit or promote a gang" is an appropriate subject for expert testimony. ( People v. Killebrew (2002) 103 Cal.App.4th 644, 657, 126 Cal.Rptr.2d 876 ( Killebrew ), and cases cited therein.) Officer Gracia testified the robberies furthered the interests of the Nogales Gangster Crips because they enhanced the gang's reputation for violence, which served to prevent witnesses and other gang members from reporting the gang's criminal activity.
Additional evidence corroborated Officer Gracia's opinion. Immediately prior to the robberies, Henry instructed Davis to "pull one shot" or to "shoot one of the people." If the goal of the robberies was only to obtain money, there would have been no reason for deciding in advance to fire the gun or to shoot someone. The fact that Davis shot the gun during both robberies despite the lack of resistance from either victim was corroboration of Gracia's opinion that the offenses were committed to enhance the gang's reputation for violence and to silence potential witnesses.
People v. Hill, 2005 WL 1534292, at * 8.
Viewing the evidence in the light most favorable to the verdict, and for the reasons described by the California Court of Appeal, the undersigned concludes that there was sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that petitioner committed the robberies "for the benefit of, at the direction of, or in association with" NGC members and that the gang expert's testimony on this issue was appropriate. As explained by the state appellate court, Jessie Davis corroborated the opinion testimony of the police expert Gracia, by testifying that he had been instructed prior to the robberies to shoot his weapon unrelated to whether or not he obtained the money. The state court opinion rejecting petitioner's arguments in this regard is a reasonable construction of the evidence in this case and is not contrary to or an objectively unreasonable application of federal law. SeeWoodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 360 2002); seealso 28 U.S.C. § 2254(d)(1). Accordingly, petitioner is not entitled to habeas relief on his claim that the evidence introduced at his trial was insufficient to support the gang enhancements.
Claim 2- Violation of due process when trial court failed to define "primary activities" as that term is used in the gang enhancement statute
Legal Standard for Jury Instruction Error
A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475 (1981); see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). The standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Estelle v. McGuire, 502 U.S. at 68, 112 S.Ct. at 480. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness." Id. at 73, 112 S.Ct. at 482. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id. at 73, 112 S.Ct. at 482.
In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely 'undesirable, erroneous, or even "universally condemned,"' but must violate some due process right guaranteed by the fourteenth amendment." Prantil v. California, 843 F.2d 314, 317 (1988), quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973). To prevail on such a claim petitioner must demonstrate "that an erroneous instruction'so infected the entire trial that the resulting conviction violates due process.'" Prantil, 843 F.2d at 317, quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987). See also Estelle, 502 U.S. at 72, 112 S.Ct. 475. In making its determination, this court must evaluate the challenged jury instructions "'in the context of the overall charge to the jury as a component of the entire trial process.'" Prantil, 843 F.2d at 817, quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984). Where the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737 (1977). See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).
Petitioner asserts that the trial court instructed the jury that the group must have as one of its primary activities the commission of one or more of the crimes listed. Petition, p. 7. But, petitioner avers, the trial court "entirely failed" to define the "technical term 'primary activities'" as applied in the gang enhancement statute, and also failed to delineate the type of proof that would be necessary to establish primary activities. Id.
As noted by respondent (Answer, pp. 27-28), the following jury instruction, in relevant part, was given:
Defendant is accused in the information with having violated Section 186.22(b) of the Penal Code. Any person who is convicted of a felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with specific intent to promote, further, or assist in any criminal conduct by gang members, is guilty of a violation of Section 186.22(g) of the Penal Code.
A criminal street gang means any ongoing organization, association, or a group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the following criminal acts: One, robbery, as defined in Penal Code Section 211. . . .
Two, mayhem as defined in Penal Code Section 203. . . .
Three, homicide or murder as defined in Penal Code 187. . . .
Four, the intimidation of witnesses and victims as defined in Penal Code Section 136.1. . . .
The state court of appeal rejected this ...