The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Madera, following his conviction by jury trial on June 2, 2005, of four counts of robbery (Cal. Penal Code § 211), one count of burglary (Cal. Penal Code § 459), and one count of participating in a criminal street gang (Cal. Penal Code § 186.22(a)). (LD*fn1 1.) The jury also found true six sentence enhancements alleging that Petitioner was armed with a firearm during the offense (Cal. Penal Code § 12022.53(b)), and five enhancements alleging Petitioner committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)(C)). (LD 1.) On August 2, 2005, Petitioner was sentenced to serve a determinate term of 50 years in state prison. (LD 1.)
Petitioner filed a timely notice of appeal. On May 4, 2007, the California Court of Appeal, Fifth Appellate District (hereinafter "Fifth DCA") affirmed Petitioner's judgment in all respects. (LD 2.) He then filed a petition for review in the California Supreme Court on June 18, 2007. (LD 3.) The petition was dismissed on September 12, 2007. (LD 4.)
On December 13, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, and the petition was denied on June 11, 2008. (LD 5.)
On December 29, 2008, Petitioner filed the instant federal habeas petition. The petition raises the following two (2) claims for relief: 1) He contends the criminal street gang enhancement was not supported by sufficient evidence; and 2) He alleges the imposition of the aggravated term based on facts not found by the jury was a violation of his Sixth and Fourteenth Amendment rights. On January 6, 2010, Respondent filed an answer to the petition. Petitioner did not file a traverse.
On September 16, 2003, at approximately 10:00 p.m., Stanley Cantrell, Anna Del Bianco, Paulette Leonard, and Irma Ferrarese were in the bar of Farnesi's Restaurant in Chowchilla. Three Black males wearing bandanas over their lower faces and carrying firearms strode into the bar through a side door. Ferrarese recognized Lee as one of the men.
The three men demanded the victims turn over all their money and valuables and then ordered the four people to lie down on the floor. As soon as the robbers left by the side door, Leonard ran out the front door and saw a blue or gray compact car with four people in it pulling away. Leonard jumped in her car and attempted to follow the [car] on southbound Highway 99. She eventually lost sight of the compact car. While Leonard was pursuing the robbers, someone in the restaurant reported the robbery to law enforcement.
Around 11:00 p.m. that same evening, Williams and Lee, along with a coparticipant, Brandon Crane, attempted ro rob a liquor store in Fresno. The burglar alarm went off almost immediately, and the three men fled the scene.
Around 12:30 a.m. the morning of September 17, three armed men wearing bandanas robbed a pizza parlor in Fresno. After the robbers left, the police were notified.
A citizen monitoring the police scanner saw a vehicle matching the reported description and notified the police. A high speed chase ensued on northbound Highway 99, ending near Chowchilla where the suspects' car finally was stopped. During the chase, the suspects had thrown various items out the car window. Williams, Lee, and Crane were taken into custody at the scene.
Over the next day or two, various items were recovered in the car and along the chase route on Highway 99, including a blue knit cap, a blue bandanna, a blue Harley Davidson cap, a blue hooded sweatshirt, a Tec-9 assault rifle with ammunition, an empty nine-millimeter ammunition box, and personal property of the victims.
Williams and Lee were charged in Madera County with four counts of robbery, burglary, and membership in a street gang as a substantive offense. In addition, it was alleged that the robberies and burglary were committed for the benefit of and at the direction of a criminal street gang. As to all counts, it was alleged that Williams and Lee personally used a firearm. It also was alleged that Lee suffered a prior serious felony conviction and served a prior prison term. Williams was alleged to have served two prior prison terms.
At trial, Sergeant Thomas Trinidad of the Merced Police Department testified as an expert on gangs. Trinidad described the initiation process for gang members, the significance of tattoos, hand signs, graffiti, and style of dress. In the gang culture, committing property crimes is seen as supporting the gang financially, while committing violent crimes is seen as supporting the gang by generating fear of the gang among other gangs and the general public. Violence also serves to deter victims from testifying. Property crimes are committed to support the gang lifestyle because most gang members are unemployed.
Trinidad is familiar with a criminal street gang known as the Merced Gangster Crips. The gang consists of 86 members or affiliates, uses the color blue as an identifying color, including the wearing of blue bandanas, and has robbery as one of its primary activities.
Based upon Lee's past admissions, his contacts with Merced police, and state parole records, Trinidad was of the opinion that Lee was a member of the Merced Gangster Crips. Trinidad also testified that Williams was a member of the same gang, based upon gang photos, the "MGC" tattoo on Williams's arm, a chest tattoo reading "MG Crip gangster," and the moniker "Mr. Dice," which also was tattooed on Williams.
A hypothetical fact pattern, based upon the Farnesi's robbery, was posed to Trinidad. He opined that each of the three perpetrators would receive a benefit from the crime, as well as the gang as a whole, and each perpetrator and the gang would receive a monetary benefit and an increase in status. It was to the gang's benefit to have multiple gang members involved in the commission of a crime because it increased the chance of a successful outcome. Since gang members tend to be unemployed, their main means of economic support is by committing crimes for profit.
Trinidad also testified that if gang members went together to a location for the purpose of committing a crime, it would tend to show the crime was committed for the benefit of, or at the direction of, the gang. It also was significant, in Trinidad's opinion, that Lee, Williams, and Crane wore blue clothing and blue bandanas during the robbery.
Additionally, Trinidad presented various court records establishing that the required predicate offenses had been committed by the Merced Gangster Crips.
The jury found Williams and Lee guilty as charged of all substantive offenses and found the enhancements true. In a bifurcated trial on the prior conviction allegations, Lee admitted to one prior prison term and ...