The opinion of the court was delivered by: Alfred T. Goodwin. United States Circuit Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Palixath Xabandith, a California prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his 2003 conviction and sentence for assault with a deadly weapon and assault with a firearm. Xabandith bases his request for relief on: (1) insufficient evidence to support his conviction and gang allegations, (2) erroneous admission of evidence, and (3) unconstitutional imposition of upper term sentence for attempted murder. After considering the Petition, Respondent's Answer, Petitioner's Traverse, and supporting documents submitted by the parties, the Petition is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts is from the unpublished opinion of the California Court of Appeal*fn1
This is not a case of conflicting eyewitness accounts. It is remarkable only for what no one saw. No one testified there was any provocation for the beating or for the shooting. No one testified the victim threw gang signs, "mad dogged" the patrons at the bar, showed any disrespect to the ECC, or challenged defendants to a fight. No one testified they saw who shot Chanthala Banemanyvong. No one heard anyone yell out "ECC" or claim gang affiliation.
The witnesses did agree, however, on a general chronology of events leading up to the shooting. Banemanyvong arrived at a bar on El Camino Avenue in Sacramento at approximately 11:00 p.m. on August 11, 2001. Three friends, all of whom had been drinking beer before they arrived at the bar, accompanied him. Banemanyvong sat down at a table with a friend, Bounloth Chandra, who was also known as Loddi. Aware that a group of Laotian men were giving him "mean look[s]" and "mad-dogging" him, Banemanyvong decided to go outside to smoke a cigarette.
Defendants followed him out of the bar. Holding what appeared to be either a beer bottle or beer can, defendant Phothrirath asked Banemanyvong where he was from or what gang he was from. Banemanyvong responded that he was from Chico. Phothirath then asked, "You know where you at?" and Banemanyvong said he was on El Camino. Phothirath threatened, "I'm going to shoot you." Loddi, who knew both defendants, tried unsuccessfully to intervene and abort a confrontation. Phothirath hit Banemanyvong, splitting open his chin. Loddi heard a bottle crack.
Defendants both jumped Banemanyvong and began beating him. He ran around a car in the parking lot, ducking and trying to get away, bleeding badly from his chin. One of his friends tried to intervene but was stopped by one of the bystanders. During a momentary break in the action, Loddi went inside the bar to use the bathroom and Banemanyvong tried to collect himself by the front door of the bar.
When Banemanyvong and his friend heard shots behind them, they ran across the street to an open field. Bleeding profusely, Banemanyvong realized he had been shot. He suffered two gunshot wounds, one in his abdomen and one in his back, had a total of three surgeries, and had to wear a colostomy bag. He had a blood alcohol level of .196 percent.
Lodged Document 3 at 2-3.
A jury convicted Xabandith of assault with a deadly weapon, Cal. Penal Code § 245(a)(1); attempted murder, Cal. Penal Code §§ 187, 664; and assault with a firearm, Cal. Penal Code § 245(a)(2). His crimes were enhanced because they were committed with intent to promote criminal conduct by gang members, Cal. Penal Code § 186.22(b)(1), and Xabandith intentionally discharged a firearm, Cal. Penal Code § 12022.53. Xabandith was sentenced to state imprisonment for nine years plus twenty-five years to life.
The California Court of Appeal, Third Appellate District affirmed, and the California Supreme Court denied Xabandith's petition for review on October 19, 2005. Xabandith has exhausted his state grounds for relief.*fn2 In his federal habeas petition, Xabandith challenges his conviction and sentence on the bases of insufficient evidence, erroneous instructions, erroneous admission of evidence, and excessive sentence.
Because Xabandith's petition was filed after April 24, 1996, his claims adjudicated on the merits by a state court are governed by the deferential review standard established in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). This court cannot grant relief from the state court decision unless the decision (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. 28 U.S.C. §2254(d). Where there is no reasoned decision from the highest state court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
A state court decision may result in a decision that is "contrary to" established federal law if it "applies a rule that contradicts the governing law set forth in our cases" or "confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405, 406 (2000). "'[C]learly established Federal law'" is defined as "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting 28 U.S.C. § 2254(d)(1)). Under the deferential § 2254(d) standard, state court decisions must "be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
B. Gang Enhancement and Jury Instructions
Xabandith argues that there is insufficient evidence to support his gang affiliation or enhancement (claim one) and that the jury was misinstructed as to his gang enhancement (claims two and three). Although the gang enhancement requires two predicate offences to be proved, Xabandith contends that only one was shown. He presented these claims to the state court of appeal on direct review, which denied these claims on the merits and to the California Supreme Court, which denied review.
Regarding gang affiliation and enhancement, the state appellate court determined:
Xabandith was charged with three gang enhancements under the Street Terrorism Enforcement and Prevention Act. (Pen. Code, § 186.20 et seq.) "[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been '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.' In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have ...