The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner seeks to have his first degree felony murder conviction, as well as lesser convictions, overturned due to injection of "gang testimony" into his trial after the trial court had ordered that no such reference should be made. He also seeks to have the murder conviction overturned on account of an allegedly faulty jury instruction on aiding and abetting. The first issue falls because the trial court's and Court of Appeal handling of the issue is beyond AEDPA reproach. The second issue fares no better because petitioner is simply arguing with a California appellate court's determination on a matter of state law.
Petitioner was convicted of first degree murder on a felony murder aiding and abetting theory, attempted robbery, assault with a deadly weapon, conspiracy to commit robbery, and auto theft. The jury also found true a firearms allegation. However, the jury could not reach a verdict of felony murder special circumstance, and a mistrial was declared on this aspect of the case. Petitioner has not been re-prosecuted on the special circumstance.
Petitioner was sentenced to 25 years to life on the murder conviction, and a determinate sentence of 7 years and 8 months on the lesser convictions, the precise allocation for which is not relevant to the habeas action.
After proceeding to direct review with the California Court of Appeal (conviction affirmed), and later on petition for review with the California Supreme Court (denied), a federal petition was filed on August 6, 2006. With court permission, petitioner later filed an amended petition on April 23, 2007. Within that petition, four claims were raised:
(1) Failure to hold a Cal. Evid. Code § 1360 hearing to validate out-of-court statements;
(2) Undue prejudice from witness' reference to gangs despite court order not to do so (framed as a failure to grant a mistrial);
(3) Incorrect Jury Instructions with respect to aiding and abetting;
(4) Denial of defense request to modify the reasonable doubt instructions.
Petitioner does not contest the fact the first claim in the amended petition alleging a violation of state law has not been exhausted. Nor does petitioner's counsel contest the claim on the merits with any briefing. The undersigned therefore finds the claim abandoned.*fn1 The same is true for petitioner's fourth claim, and the result is the same finding of abandonment. In the alternative, neither claim has any merit in federal habeas corpus.
The facts set forth by the California Court of Appeal, (People v. Dixon, 2004 WL 2729757 (Nov. 29, 2004)) are accurate, and they are reproduced here*fn2
In early December 1996, Richard Brewer spoke with Trevor Garcia about doing a robbery. Brewer said he and two others had done a "lick," a robbery, and got a good amount of cash. He said it was easy, "easy way in, easy way out." Brewer asked Garcia if he was "down" to do a lick. Garcia agreed.
Ernest Cervantes owned a black 1992 GMC Jimmy. On December 22, 1996, he parked the sport utility vehicle at 15th and S streets near the Monte Carlo Club. When he returned at 8:00 or 9:00 that night, the vehicle was gone. Dixon and Carlos C. stole it by peeling the steering column. The stolen vehicle was seen being driven recklessly around the Southside Park neighborhood. Dixon's half-sister called the police about Dixon's erratic driving.
Brewer discussed doing a robbery again the next morning. Brewer told Garcia that Dixon and Carlos C. had brought over a "G-ride," a stolen vehicle, that would be perfect for a lick. Brewer had talked to Dixon about the robbery two days before. Garcia and Rickie Martinez agreed to do the robbery. Brewer told them to bring Halloween masks. James Glica came by and Brewer told him about the planned robbery; he also agreed to be part of it.
Brewer, Dixon, Carlos C., Garcia, Martinez and Glica met at Southside Park and drove a few blocks to where the G-ride was. Brewer put his gun, a black sawed-off shotgun, in the SUV. The gun was 18 to 24 inches long. They discussed the plan for the robbery; Brewer would go in and intimidate everyone with the shotgun and the others would hold people down and check the cash registers. Dixon would be the get away driver; he would stay outside and keep the car running. Dixon volunteered to drive because the others had been drinking. Glica was in the back of the SUV and kicked out the rear window, in case they were pulled over and he needed to make a quick getaway. *2 As the group drove through Southside Park, Carlos C.'s girlfriend came out. She had heard the vehicle was stolen and told Carlos to get out and stay with her. Carlos got out.
The remaining group, Brewer, Dixon, Garcia, Martinez and Glica, stopped to get gas and then went to Brewer's apartment at 13th and G Streets. Garcia lived in the same complex and Martinez often hung around. The managers saw the black SUV and four or five young men, including Brewer, goofing around and play-fighting. They had ski masks.
The group then drove slowly by the front of The Bread Store and then to the back alley. Brewer said "stop" and then, "let's go." Brewer put on a devil mask and Garcia had a black and white mask. Glica tied a red T-shirt over his face and Martinez put a nylon stocking over his head. Brewer had a gun.
The Bread Store, a bakery and delicatessen, closed at 6:00 that night. At 6:30, five employees were present: Dung Van Dao, known as Tony, Hector Montelongo, Kelly Range, Joshua Christian, and Jason Frost. The registers had been emptied and the money dropped in the safe. Only the managers had a key to the safe and no managers were present that night.
Tony Dung was in the back of the store. He heard a noise. The back door opened and a person came in wearing a mask and holding a long gun. The man said, "This is a robbery" or "I am a robber." Dung ran to the front door shouting there was a robbery. Christian and Range followed him out the front door. Range and ...