FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on charges of assault with a semi-automatic firearm enhanced by findings of personal use of a firearm and personal infliction of great bodily injury and the prison sentence imposed thereon.*fn1 This action is proceeding on six claims raised in the original petition, filed June 18, 2007, and several claims challenging his sentence raised in a supplemental petition filed May 21, 2009.
In Case No. FC47622 (hereafter case 1), [petitioner] pled no contest to unlawful possession of a firearm (Pen. Code § 12021, subd. (c)(1)) and received probation, which was later revoked. In case No. FC47988 (hereafter case 2), [petitioner] pled no contest to unlawful sexual intercourse with a minor more than three years younger than [petitioner] (§ 261.5, subd. (c)), and received probation, which was later revoked. In case No. FCR185360 (hereafter case 3), a jury found [petitioner] guilt of failure to appear while on bail (§ 1320.5) and assault with a semi-automatic firearm (§245, subd. (b)), and found true allegations of personal firearm use and infliction of great bodily injury (§§ 12022.5, subd. (a); 12022.7, subd. (a)).*fn3 [Petitioner] was sentenced on all three cases to 24 years in state prison.
Since [petitioner]'s appeal in case 1 raises only a sentencing issue, a detailed recitation of facts in that case is unnecessary.*fn4 We report the facts relevant to case 3 as follows.
At about 3:45 a.m. on July 17, 2000, Suisun Police Officer Eric Smith was dispatched to a Skylark Drive address. The victim, Jose Lopez, walked out of the residence and said he had been shot in the right leg. Lopez was transported to the hospital. No gun was found at the scene, but a spent nine-millimeter shell casing was found in the street, eight to 10 feet from the curb. The casing appeared to have been fired from a semi-automatic weapon.
Lopez testified at the preliminary hearing, but died before trial in circumstances unrelated to this case. His preliminary hearing testimony was read to the jury. Lopez testified that on the night of the shooting he called his girlfriend, Cynthia Tauriac, to say he was coming over. When he arrived, he twice threw a piece of bark at her window to get her attention. After someone looked out the window, Lopez approached the front door, which "flew open," and a person pointed a black automatic weapon at Lopez's face and repeatedly told him to back up and run. As Lopez started to walk away he was shot. Lopez said that he then saw [petitioner], Tauriac and Jose Barajas run to a black car parked across the street. [Petitioner] and Barajas entered the car and sped off.
On direct examination, Lopez identified [petitioner] as the shooter. On cross-examination, however, Lopez conceded that soon after the shooting he could not positively identify his assailant from a six-person photo lineup shown to him. Lopez also said that because Tauriac had told him that [petitioner] was his assailant, he formed such belief and testified thereto. Lopez said he told the police he had been shot by Robert Luna because that was the name Tauriac gave him. Lopez also said that a month or two prior to the preliminary hearing Suisun Police Detective Michael Pimentel came to his home, showed him a single photo, and asked him if "that was the person."
At trial, Pimentel confirmed that Lopez initially said he was shot by a Robert Luna, and that Tauriac told Lopez that Luna was the shooter's name. Pimentel testified that a month after the shooting he showed Lopez a series of six photos, and Lopez identified someone other than [petitioner] as his assailant. Pimentel also testified that in September 2000, Lopez called Pimentel and expressed concern that he would not recognize the person who shot him if he encountered him on the street and he knew [petitioner] was not in custody. He requested to know who police believed to be his assailant. After conferring with his sergeant, Pimentel showed Lopez a photo of [petitioner], advising him that it was for Lopez's own safety and could have no bearing on the investigation or Lopez's original identification. On redirect examination Pimentel said Lopez described his assailant as being 5 feet 8 inches tall, 170 pounds, wearing a red beanie and a red shirt. Pimentel conceded that [petitioner] is shorter than the assailant Lopez described.
Tauriac testified that she had had an off and on romantic relationship with Lopez for about five years, but they were not involved at the time of the shooting. Tauriac said she had been a sporadic methamphetamine user for about eight years. In an attempt to change her life, she stopped using methamphetamine, ended her relationship with Lopez and moved. She said that after midnight on the morning of the shooting, Barajas and [petitioner], also known as Thumper, came to see her. At about 2:00 a.m., [petitioner] left Tauriac and Barajas alone in Tauriac's bedroom for about 45 minutes. During that time Lopez called and asked who was there. When she told him it was none of his business and he should go on with his life, he said he was coming over.
About 20 minutes later, Tauriac heard something hitting her bedroom window. [Petitioner] came into the room and then went downstairs, followed by Barajas. Tauriac heard Lopez say "My lady," and then heard [petitioner] say "back up" and "run." When Tauriac came downstairs she saw [petitioner] and Barajas standing outside. She saw a flash come from the gun [petitioner] was holding and heard a single gunshot. Barajas walked across the street to his car followed by [petitioner] and the two then drove away. When the police arrived Tauriac fled because she feared [petitioner] and Lopez, and feared she had violated her parole.
Tauriac said she made up the name Robert Luna and told Lopez that Luna shot him because she was afraid to tell him that [petitioner] was the shooter. She later told police that "Robert," also known as "Thumper," was the shooter, and lived at Villa Circle. Police confirmed that [petitioner] is known by the names "Thumper" and "Little Rob," and lived at Villa Circle. Tauriac said that prior to the shooting [petitioner] and Lopez had never met.
Barajas testified that he and [petitioner] were at Tauriac's house on the night of the shooting, and [petitioner] answered the knock at Tauriac's door. After hearing a gunshot Barajas entered his car. [Petitioner] then entered the car and they drove to Vacaville, where they went their separate ways. On cross-examination Barajas testified that he had had sex with Tauriac about two weeks prior to the shooting. However, prior to the shooting he and Lopez worked out their differences about Barajas's having had sex with Tauriac.
David Rodriguez testified that he was a longtime friend of both Lopez and Barajas and had no personal knowledge of the subject incident. At the time of the shooting, he was 5 feet 6 inches tall, and weighed about 150 pounds.
Jan Layfield, an investigator with the district attorney's office, testified that following the shooting he interviewed Rodriguez in state prison. Rodriguez said he was friends with Barajas and the person who shot Lopez. Rodriguez said that a couple of days after the assault, the shooter admitted to shooting Lopez, but said he had acted in self-defense, which Rodriguez did not believe. Eventually Rodriguez identified the shooter as "Thumper" and "Rob." The same day, Layfield interviewed Barajas in state prison. Barajas told Layfield he went to Tauriac's home with [petitioner] on the night of the shooting and referred to [petitioner] as "Thumper."
On rebuttal, Pimentel said that Rodriguez told him that Lopez's assailant admitted the shooting and that Lopez was shot with a nine-millimeter weapon.
The thrust of the defense was that Rodriguez, a gang member with a violent past and a known associate of Barajas, fit Lopez's description of his assailant and committed the assault. The defense also argued that Tauriac falsely identified [petitioner] as the shooter because she feared Barajas and Lopez. People v. Baker, slip op. at 1-5.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Petitioner raises six claims challenging his conviction in his original petition and a challenge to his sentence in the supplemental petition. Petitioner challenges his conviction with claims that his constitutional rights were violated by (1) admission of the accuser's preliminary hearing testimony; (2) admission of the accuser's "tainted identification" of petitioner; (3) ineffective assistance of counsel; (4) prosecutorial misconduct; (5) instructional error; and (6) failure to inform defense counsel about police showing a single photograph to the accuser. In the supplemental petition, petitioner claims that his constitutional rights were violated by a sentence imposed in the absence of jury findings of the facts relied on to impose the upper term sentence and that the prosecution waived the right to seek an upper term sentence.
A. Admission of Accuser's Preliminary Hearing Testimony
Petitioner's first claim is that his rights under the Confrontation Clause were violated by admission at trial of the victim's preliminary hearing testimony. The last reasoned state court rejection of this claim is the decision of the California Court of Appeal for the First Appellate District on petitioner's direct appeal. The state court of appeal addressed the claim as follows:
[Petitioner] contends that because he did not have an opportunity to cross-examine Lopez at the preliminary hearing with an interest and motive that was sufficiently similar to his interest and motive at trial, admission of Lopez's November 2000 preliminary hearing testimony violated Evidence Code section 1291*fn5 as well as [petitioner]'s right of confrontation under the staet and federal Constitutions. He provides several bases for this contention. First, at the preliminary hearing, Lopez testified that Pimentel had shown him a photo of the [petitioner] approximately one or two months before. Lopez seemed to indicate that a third person was present when that occurred. [Petitioner] argues that the court's refusal to permit him to obtain the name of that third person during the cross-examination of Lopez at the hearing prevented him from exploring the inconsistency in Lopez's testimony as to whether a third person was actually present. At the preliminary hearing, after being cross-examined about his failure to identify [petitioner] at the six-person photo lineup, Lopez was cross-examined regarding Pimentel's later visit to show him a single photo of [petitioner]. During that cross-examination the following colloquy occurred:
"[Defense Counsel]: So, the police have come to you within the last month --
"The Court: Now, you are misstating what the testimony way. He said in the last month or two.
"[Lopez]: There will be another witness. It doesn't matter.
"[Defense Counsel]: I'm only worried about what you have to say right now.
"The Court: Just --"[Defense Counsel]: Can you give us any more specific date --
"[Defense Counsel]: -- when this one photo was shown?
"[Lopez]: Nope. Don't recall.
"[Defense Counsel]: You don't recall?
"The Court: All right. Anything else?
"[Lopez]: My witness might.
"The Court: Well, no, that's okay. [¶] [Defense counsel], any more questions?
"[Defense Counsel]: When you were shown the one photograph, one single photograph, who was with you?
"[Defense Counsel]: You just mentioned that your witness might be able to give us the date of that. Was somebody there?
"The Court: That's discovery, so I'm not going to let you ask that." [Petitioner] also argues that Pimentel's trial testimony provided a reason for showing the single photograph to Lopez that had never before been disclosed. Thus the defense had not been able to verify this with Lopez at the preliminary hearing.
Finally, [petitioner] argues that at the preliminary hearing he refrained from questioning Lopez about whether he knew Rodriguez and whether the shooter could have been Rodriguez or Barajas because such questions could have been considered discovery, prohibited by Penal Code section 866, subdivision (b). In addition, such questions would have given Lopez a preview of the questions to be asked at trial and enabled Lopez to rehearse his responses.
In People v. Zapien (1993) 4 Cal.4th 929, 974, the defendant contended that the preliminary hearing testimony of a particular witness was inadmissible because his motive to cross-examine that witness was significantly different than his motive at trial. In upholding the admission of the preliminary hearing testimony, the Supreme Court stated: "Frequently, a defendant's motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial. for the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only "similar." [Citation.] Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions--not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution. [Citations.]" (Zapien, at p. 975.)
During both the preliminary hearing and at trial, [petitioner]'s motive was to discredit Lopez's version of the crime and establish that Lopez was unable to identify his assailant. Thus, [petitioner] has failed to establish that his motive in cross-examining Lopez at the preliminary hearing was not similar to his motive at trial.
We also reject [petitioner]'s claim that he was prejudiced by being prevented from cross-examining Lopez regarding the "mystery witness." Lopez's comment regarding another witness came in response to questioning solely about the date he was shown the single photo by Pimentel. As the People point out, [petitioner] could clearly have examined Pimentel at the preliminary hearing and/or at trial as to the existence of some witness regarding the photo showing. Moreover, the issue of another witness was not raised during any other questioning at the preliminary hearing and was not raised at trial. [Petitioner] has failed to establish that he was denied the ability to cross-examine effectively.
We also reject [petitioner]'s arguments regarding his tactical reasons for not vigorously cross-examining Lopez regarding Rodriguez and Barajas. His argument that such questioning would have been curtailed by the court is merely speculative. He was provided with the opportunity for effective cross-examination and the admissibility of prior testimony does not depend on ...