The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction on charges of second degree murder and street terrorism. (Clerk's Transcript ("CT") 1171, 1173.) Petitioner was sentenced to 15 years to life in state prison. Petitioner raises five claims in his petition, filed July 25, 2005, that his prison sentence violates the Constitution.
Petitioner filed a timely appeal to the Court of Appeal of the State of California, Third Appellate District. (Respondent's Lodged Document ("LD") Nos. 1- 3.) The Court of Appeal affirmed petitioner's conviction by order filed June 29, 2004. (LD 4.) Petitioner filed a petition for rehearing. (LD 5.) On July 23, 2004, the Court of Appeal modified the prior opinion without changing the result. (LD 6.)
On August 10, 2004, petitioner filed a petition for review in the California Supreme Court. (LD 7.) The petition was denied on September 29, 2004. (LD 8.)
On July 25, 2005, petitioner filed the instant petition.
III. Facts and Procedural Background*fn1
By information, the People charged Javier Juarez Sanchez and defendants Alcantara and Fisher with murder (§ 187). The information alleged sentence enhancements against all three for street terrorism (§ 186.22, subd. (b)(1)) and against Fisher for the personal use of a knife (§ 12022, subd. (b)(1)). The information further charged all three with street terrorism (§ 186.22, subd. (a)).
Prior to trial, Sanchez pled guilty to being an accessory to murder in exchange for a sentence of three years in state prison. As part of his plea agreement, Sanchez agreed to testify truthfully at trial.
At trial, Fisher's father, James Fisher, testified his son was at home most of the day on December 2, 2001, and that defendant Fisher had been drinking that day. Late in the afternoon, defendant Fisher's friends, Sanchez and Alcantara, came over to visit. While they were there, James Fisher refused defendant Fisher's entreaty to buy beer. A short time later--at 4:00 or 5:00 p.m.--the three men emerged from defendant Fisher's room, said they were going to Lodi to buy beer, and left.
On the date of his death, Carlos Ramirez lived with some friends on Locust Street. He was 5 feet 10 inches tall and weighed 200 pounds. He was not associated with any gang.
That night, Carlos Ramirez and his friend Rafael Delgado walked a few blocks to the local Beacon gas station to buy some sodas. While Carlos Ramirez and Delgado were in the store, a small black or blue pickup drove by the station. The people in the pickup were throwing gang signs at customers at the station. They were also throwing rocks. The cashier at the gas station testified the driver of the pickup was Mexican and had a passenger. She could not tell if there was a third person in the vehicle.
After Delgado and Carlos Ramirez left the store to go back home, Delgado was walking about 15 feet ahead of Carlos Ramirez. Delgado heard someone shout the words "Norte catorce, North 14." (The Norteño street gang uses the number 14 as one of its call signs.) When he heard the shout, Delgado turned around and saw two men beating up Carlos Ramirez who cried out for help. Delgado saw what looked like sparks coming from the fight and heard two or three "crack" noises. Delgado could not see the faces of the assailants. Delgado ran home.
At the time of the homicide, Cody Meyers was filling up his truck at the Beacon gas station across the street. Meyers heard someone running and looked up. He saw three guys beating up a fourth man. Meyers also heard a noise that sounded like a cattle prod. He described the sound to the police as sounding like a taser or stun gun.
Meyers saw that the victim was protecting his face with his arms and screaming in pain. When the victim fell to the ground, two of the men ran away in one direction and the third fled in a different direction. Meyers testified the entire attack happened very quickly--in about 10 seconds. Meyers could not describe the attackers, but testified the victim was larger than his attackers.
Lodi Police Officer David Griffin responded to the scene of the attack. He arrived at about 9:40 p.m. When Officer Griffin checked the victim's pulse and breath, he heard a gasping breath. Other than that, the victim was unresponsive.
When the paramedics arrived, they found Carlos Ramirez lying on the ground face up in a large pool of blood. He was dead. He had a large gaping wound in his neck. Carlos Ramirez also had several other stab wounds and cuts on his face, head, neck, and hands. All told, he had two slash wounds and six stab wounds.
The stab wound to his neck severed the jugular vein, went into his backbone, severed the spinal cord, and paralyzed him. This wound was the cause of death. The pathologist who conducted the autopsy believed that two bruises on Carlos Ramirez's chest were consistent with the use of a stun gun. Carlos Ramirez also had methamphetamine in his bloodstream, which may have lessened his sensitivity to pain.
When Delgado returned to the scene, he spoke with the police. He told the officers he saw sparks coming from Carlos Ramirez's chest and that he was screaming in pain.
The People's "star witness" was Sanchez. Sanchez testified that he and both defendants were part of the Norteño gang. Fisher was one of the gang members who "jumped" Sanchez into the South Side Lodi set of that gang.*fn2 Alcantara was a member of a different set--the South Central Lodi set.
The day of the murder, Sanchez and his friend Donnie went to the Beacon gas station to buy beer. Later, Sanchez and Alcantara drove to Fisher's house in Thornton. All three men were drinking that night. The three stayed at Fisher's house for one-half hour then drove back to Lodi.
Sanchez drove defendants Fisher and Alcantara to the Beacon gas station on the night of the murder in his dark blue Chevy truck. They were looking for "someone to fight" from the rival Sureño gang.*fn3 Alcantara told Sanchez that he had a stun gun and wanted to use it on someone. While the men were driving around, Alcantara threw rocks or an empty beer can at a moving car in front of the Beacon gas station.
The three happened upon Carlos Ramirez and Delgado coming out of the gas station. Alcantara told the others he recognized Carlos Ramirez as a Sureño gang member. Sanchez pulled over and parked the pickup a few houses down from the Beacon station. The two defendants jumped out of the pickup and went across the street and started fighting with the victim. Alcantara used the stun gun on him. Delgado ran away.
According to Sanchez, Carlos Ramirez did not make any aggressive movements toward the defendants, but he did swing at them. Sanchez did not believe the defendants intended to kill the victim. When Carlos Ramirez fell down, the two defendants ran back to the truck.
Alcantara cut his thumb during the fight. Sanchez identified a scar on Alcantara's thumb for the jury as being in the location of the cut.*fn4 Sanchez drove away with the defendants in his pickup, dropped them off 5 to 10 minutes later at a nearby house, and left. Sanchez claimed he did not use Fisher's cellular telephone that night and did not see either of the two defendants use it.
Sanchez testified there was blood in his pickup and he took the upholstery out to clean the blood. He also told officers he took the pickup to Sacramento within a few days after the murder and that he had removed the carpet, the seats or seat coverings, and the headliner. When the officers examined the pickup, they found that the carpet had been removed and the seats did not match the make or year of the pickup. The police were unable to find any blood inside the pickup.
Fisher's mother testified she awoke at about 10:45 p.m. and found her son rummaging around in her room for a flashlight. At the preliminary hearing, she testified that her son woke her at about 3:00 in the morning. She heard the dryer running from a load of laundry that included her son's jacket. The next morning, she discovered Fisher had thrown away his shoes the previous night. Fisher's mother confirmed that her son was once a Norteño gang member.
Another witness heard Fisher's mother telling a co-worker that her son had acted strangely the night of the homicide. He had come home late, washed his clothes, and buried some things in the backyard that night.*fn5
Alcantara's girlfriend is Regina Ramirez. Steven Estaban Ramirez is Regina Ramirez's cousin. Steven Estaban Ramirez was also a member of the Norteño gang and friends with both the defendants and Sanchez. He claimed he got out of that gang when he turned 18.
Shawna Hughes is Steven Estaban Ramirez's wife. She testified she received a telephone call from Fisher the night of the homicide. Fisher asked for Steven Estaban Ramirez, but Steven Estaban Ramirez was not available.
The records from Fisher's cellular telephone show that the telephone was used to call the home of Steven Estaban Ramirez at 9:45 p.m. the night of the murder. That call lasted 36 seconds. One minute later, the telephone was used to call Shawna Hughes, Steven Estaban Ramirez's wife. That call lasted one minute and 15 seconds. In the next 15 minutes, two more telephone calls were placed to Shawna Hughes's number. At 9:59 p.m., someone dialed Fisher's number into the phone and then punched in the numbers "13*187." This was interpreted by the gang expert, and Sanchez, as referring to the killing of a Sureño gang member. Finally, the phone was used four more times in the space of three minutes to call the number of Alcantara's girlfriend, Regina Ramirez.
Evidence was also admitted that on the day prior to the murder and the day after, telephone calls made from Fisher's telephone included the area code, while on the night of the murder, several of these calls did not include the area code.
Steven Estaban Ramirez confirmed that on the night of the murder someone called his home from Fisher's cellular telephone. At that time, he was not home. Steven Estaban Ramirez claimed that he did not speak with either defendant or Sanchez that night. Steven Estaban Ramirez admitted he was once a Norteño gang member.
At lunch the day after the homicide, Fisher confessed to his co-worker, Jeff Nickell, that he had stabbed someone in the neck with a pocketknife the prior night. Fisher said that he did not plan the stabbing, but that it was something that had just happened. Fisher told Nickell that he had been driving around with two other men in a pickup and they got into a fight with a fourth man.
The following day, Fisher repeated his admission to Nickell and Nickell's father. Nickell testified that Fisher seemed to be shocked--like he did not know that the person had died. The two convinced Fisher to go to the police where he confessed.
A search of Fisher's bedroom turned up a red hat, tennis shoes with red laces, and several magazines. Red is the color associated with the Norteño gang. Officers also found a hand-written memorial to Johnny Moreno--the fellow Norteño gang member who was killed by a member of the Sureño gang. Officers also found a photograph of five people on which was written the letters "SK,"*fn6 the number "187" and the words "all scrapas." "187" is the Penal Code section for murder; "scrapas" is a derogatory slang term for Sureño gang members. The officers also found a picture of Steven Estaban Ramirez in Fisher's room. The officers found a backpack buried in Fisher's backyard that contained several handguns--one of which was semiautomatic.
The police spoke with Sanchez about a month after the murder. Sanchez denied any involvement. The police came back the next day and took Sanchez to the police department. During that interview, Sanchez told Lodi Police Detective Sierra Brucia, "'I'm part of this'"and confessed his involvement in the crime.
The police questioned Alcantara at his home about a month after the murder. Alcantara said that he knew about the murder and was at home on the evening of the murder. When questioned whether he was involved, he responded, "[W]ell, I don't think so" and then "no." At the time, he appeared to the officer to be despondent and his eyes teared up. Alcantara said he had last seen Fisher about a week before the murder, and had not seen him since the murder.*fn7 He admitted he used to be a Norteño gang member, but claimed he did not gang bang anymore. In a prior interview in 1998, Alcantara admitted to a police officer that he was a member of the Norteño gang.
A search of Alcantara's bedroom uncovered a copy of a newspaper article about the drive-by shooting of Johnny Moreno. Officers also found Alcantara's elementary school yearbook. On the page with Alcantara's picture, someone had written the Roman numeral XIV in red and highlighted Alcantara's name. The yearbook also contained derogatory statements about "scaps" and "scrapas" and the names of Sureño gang members were crossed out. In his closet, officers found a shoebox with the number XIV, the word "Norteno" and the letters SCL written on it. Other items in his room contained similar gang words and symbols on them. In the master bedroom of the house, officers found a copy of the local newspaper article about this homicide.
Lodi Police Officer Alonzo Scott Powell testified as an expert on gangs. He concluded that both defendants were gang members. He further asserted that Steven Estaban Ramirez was of high rank in the Norteño street gang. It was his opinion that the homicide here was committed for the benefit of the Norteño gang.
At the close of the People's case, Alcantara moved for acquittal under section 1118.1 on the ground that there was no evidence that corroborated Sanchez's testimony that Alcantara was connected with the murder. The trial court denied this motion.
Fisher testified on his own behalf. He is 5 feet 9 inches tall and weighed about 135 pounds on the day of the attack. He confirmed he was in the Norteño gang between the ages of 13 and 16. He admitted he had an alcohol and drug problem and that he was drinking and under the influence of Vicodin on the day of the killing.
Fisher confirmed that Sanchez and Alcantara came over to his house that afternoon and that the three went to Lodi to purchase beer. They stopped over at a friend's house to convince the friend to buy beer and wound up staying to watch football games.
After the football games, they decided to go to another friend's house to get some more beer. At the second friend's home, Fisher saw that Alcantara had a stun gun and he was trying it out. At that time, Alcantara said he wanted to try the stun gun on someone. Fisher told Alcantara that was crazy. By this time, Fisher had consumed 8 to 10 beers.
Sanchez, Fisher, and Alcantara got into the vehicle to go pick up a friend who had a 30-pack of beer. Fisher had a knife. When they saw Carlos Ramirez, they pulled the pickup over and Alcantara got out. He walked up to Carlos Ramirez and Delgado and started talking to them in Spanish. Fisher claimed he could not tell whether Carlos Ramirez was a gang member because it was so dark.
Fisher testified that Alcantara used the stun gun on Carlos Ramirez and then a fight broke out. It was two-on-one--Carlos Ramirez and Delgado against Alcantara.*fn8 The victim was much larger than either of the defendants. It looked to Fisher like Carlos Ramirez was hitting Alcantara. Fisher ran to Alcantara's aid. Fisher did not remember taking out the knife or opening it, but he remembered swinging it around. Fisher did not see any weapon in Carlos Ramirez's hands when he pulled out his knife. Fisher thought he hit Carlos Ramirez two or three times with the knife, but he had no intent to kill him. He described the altercation as "[j]ust a fist fight."
Fisher ran back to the pickup. He confirmed that Alcantara had an injury on his right thumb when they returned to the pickup. He could not remember how he got home that night.
Fisher testified that the three men never planned to kill a Sureño. The first time Fisher knew the victim was dead was the day he turned himself in. Further, Fisher testified Alcantara told him not to name Alcantara as the one who started the fight, but instead he should blame Sanchez.
Fisher denied punching the code "13*187" into the cellular telephone. He also testified he did not know Alcantara's girlfriend's telephone number. Fisher often let others use his cellular telephone. He did not remember using his telephone after the killing. He also testified it is his habit and custom to always dial the area code before the number.
Fisher claimed he was holding the guns found in his backyard for another gang member. He testified he received the guns a couple of months before the killing and buried them the night after the killing.
Fisher also presented the testimony of Dr. Gary Cavanaugh, a psychiatrist. Dr. Cavanaugh testified that Fisher's alcohol use and reported periods of alcoholic blackouts could have affected his ability to premeditate, deliberate, and form a specific intent to kill. The doctor believed that Fisher exaggerated his alcohol use. Fisher also admitted to Dr. Cavanaugh that Alcantara said that he was going to use the stun gun on the first person he saw.
During his confession to the police, Fisher told them that he had words with Carlos Ramirez and then things escalated and he got scared. He further claimed not to remember everything because he was not in his right mind.
During the defendants' case, Sanchez testified he and the defendants never planned to kill anyone. Further, he testified he did not see a knife ...