The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Ger Lor, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Lor is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Calipatria State Prison. Respondent has answered, and Lor has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a trial by jury, Lor was convicted in the Sacramento County Superior Court of attempted murder (Cal. Penal Code §§ 187(a), 664), and discharging a firearm from a moving vehicle (Cal. Penal Code § 246). The jury also found that Lor had personally discharged a firearm, causing great bodily injury during the commission of the offenses (Cal. Penal Code § 122022.53(d)) and that the offenses were committed for the benefit of and in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)). The trial court sentenced Lor to an aggregate indeterminate prison term of 40 years to life and ordered him to pay the costs of his public defender. Lor timely appealed his conviction and sentence to the California Court of Appeal, Third District. In an unpublished reasoned decision,*fn2 the Court of Appeal affirmed his conviction and sentence, but remanded the case to the trial court for a hearing on Lor's ability to pay his attorney's fees. The California Supreme Court summarily denied review without opinion or citation to in a "postcard denial" on June 13, 2007. Lor timely filed his petition in this court on May 26, 2008, and an amended petition on December 3, 2008.
II. GROUNDS RAISED/DEFENSES
In his amended petition Lor raises two grounds for relief: (1) insufficiency of the evidence to support the street gang enhancements (Cal. Penal Code § 186.22(b)(1)), and (2) the trial court lacked authorization to order him to pay for his public defender. Respondent asserts no affirmative defense.*fn3
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn12
In applying this standard, this court reviews the last reasoned decision by the state court,*fn13 which in this case was that of the California Court of Appeal. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14 This presumption applies to state trial courts and appellate courts alike.*fn15
Ground 1: Sufficiency of the Evidence: Gang Enhancement
California Penal Code § 186.22(b)(1) provides that a gang enhancement applies if the underlying felony was "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." Lor contends that the evidence does not support a finding that he committed the crime for either the "benefit of, at the direction of, or in association with" or with the "specific intent" elements of § 186.22.*fn16 The California Court of Appeal summarized the facts underlying the conviction:
On the afternoon of July 9, 2005, [Lor] shot and seriously wounded Johnny Her in North Sacramento while both were driving their cars.
Both testified at trial and denied gang membership.FN1 However, the People sought to show that [Lor] belonged to the Hmong Nation Society (HNS) and Her belonged to the rival Menace Boys Crips (MBC). Their evidence included (1) prior admissions by both and (2) a videotape of a brawl at the October 2004 Hmong New Year's Festival in Oroville, in which [Lor] and others were seen beating Her's brother "U-Bone," a known MBC member, and then Her. As to [Lor], the People also showed that after his arrest a backpack bearing HNS-related graffiti was found in his bedroom, his cell phone revealed calls made just after the shooting to validated HNS members, and the cell phone's address book contained the numbers of still other HNS members.
FN1. [Lor] also denied shooting Her. According to [Lor], someone had borrowed his car that afternoon.
In addition, the People presented testimony from Sacramento Police Detective Aaron Lee, an expert in Asian street gangs. Lee testified that such gangs align according to nationality. HNS (Hmong Nation Society or Hmong North Side) is the dominant Asian gang in North Sacramento, with around 52 validated members. HNS's activities include homicides, drive-by shootings, narcotics sales and possession, illegal gun possession, ...