FINDINGS AND RECOMMENDATIONS
Tony Audencio Ramirez is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions in San Joaquin County Superior Court, Case No. SF099153A, for first degree murder, attempted murder, being a felon in possession of a firearm, being a felon in possession of ammunition, and sale or transportation of a controlled substance. Petitioner claims two violations of his due process rights:
(1) that prosecutors failed to timely provide him with exculpatory discovery; and (2) that the trial court erroneously instructed the jury that it was not required to unanimously agree as to one of two theories of first degree murder advanced by the prosecution.*fn1 After careful consideration of the record and applicable law, it is recommended that this petition be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
The following factual summary is taken from the unpublished opinion of the California Court of Appeal for the Third Appellate District, Case No. CO41230, affirming petitioner's judgment of conviction on appeal:*fn2
A. Prosecution's Case-In-Chief
On December 24, 2005, Maria Barragan and her boyfriend went to a friend's house in San Joaquin County. About 9:30 p.m., Barragan spoke on a cell phone with Walter Torres who wanted her to buy him some methamphetamine. After five minutes, Barragan walked outside the house and saw Torres seated in his car, waiting for her to take him to buy methamphetamine. Barragan got into the passenger seat. She and Torres talked for about five minutes.
A maroon car pulled up next to Torres's car. Defendant said, "Hey," which drew Barragan's attention to the car. Barragan saw defendant in driver's seat and another person, who was leaning back, in the passenger seat. Defendant pulled out a gun and started shooting. Barragan heard four or five shots fired. Torres turned, said "[o]h shit," and held Barragan in his arms. Torres was shot once below his neck, twice in his left shoulder, and once in his left arm. There was also a grazing gunshot wound on his right hand.FN1 After the shooting stopped, Barragan fell out of the car. The maroon car drove off.
FN1. The bullets recovered from Torres's body were either a .38 Special or .357 Magnum, either of which can be fired from a .357 Magnum revolver.
Barragan screamed for her boyfriend and told him that Torres had been shot by "Tony." The boyfriend told her to "[s]hut up" and say nothing.
San Joaquin County Sherriff's deputies were dispatched to the scene. They pulled Torres out of the car and performed CPR on him. He had no signs of life. Barragan did not tell the deputies anything because she was scared and did not know what to do. When a victim advocate drove Barragan home, Barragan saw defendant's mother's van arrive at Barragan's residence. In response, Barragan asked to be taken to her mother's residence on the same street.
On December 30, 2005, Sergeant Michael Jones spoke with Barragan for the first time. She acknowledged that she had more information about the shooting than what she had originally told officers. She was taken to the sherrif's department where she identified a photograph of defendant as the shooter and told a detective what had happened.
Barragan testifed at trial that she had known defendant all her life. Her uncle is married to his aunt.
Barragan testified that the shooter did not have any wounds to his head. After twice testifying that he had no mustache, Barragan expressed uncertainty as to the difference between a mustache and a beard.FN2 After appearing to resolve her uncertainty, she testified that the shooter had a mustache. Later, after stating that the shooter "probably did" have a mustache and that she "kn[e]w he had a mustache," she inexplicably testified that "[p]robably at the time, he didn't. I don't know."
FN2. "[THE PROSECUTOR] Q. Did he have a mustache? "A. A mustache is this, right, or this? A beard is this, a mustache is this? He had a mustache, no beard, right? [¶] That's what you're asking?
"Q: Did he have a mustache?
Barragan testified that no one had suggested to her that defendant was the shooter. She identified him as the shooter because that was "what [she had] seen that night."
In February 2006, Stockton Police officers conducted surveillance looking for defendant. He was seen leaving a residence and entering the backseat of a car. The car was stopped and defendant was handcuffed and searched. During the stop, defendant tried to avoid an officer's grasp. Officer Steve Cole responded by taking defendant to the ground. Defendant's face hit the ground, evidently causing a light abrasion on the right side of his forehead.
The prosecutor showed Officer Cole the booking photograph of defendant. Cole testified that in the photograph, defendant appeared to have marks on his forehead above his right eyebrow. When he observed this injury during the arrest, Cole thought the mark looked ...