Petitioner Prach is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Prach stands convicted of various crimes including conspiracy to commit first degree murder and first degree murder with various aggravating circumstances for which he is currently serving a sentence of life in prison, without the possibility of parole. In the pending petition, Prach challenges the constitutionality of those convictions based on allegations of trial court error.
The petition, respondent's answer, and Prach's traverse are before the court. The parties have consented to jurisdiction by a United States Magistrate Judge. Based on a thorough review of the record and applicable law, the petition will is denied.
Late on the night of February 20, 2005, several members of the Tiny Rascal Gangsters (TRG)*fn2 returned to the Stockton home of member Chan Hong after attending a party. Prach, an older documented member of TRG, was among the gang members who arrived at Hong's house. They sat around in the garage playing video games and talking. They discussed doing a drive-by shooting and catching someone "slippin'," meaning to go out and look for unprotected rival gang members who are out on the streets. Prach said: "Let's roll." Eight gang members left Hong's house in two vehicles. Prach drove his silver mini-van and Hong followed, driving his green Camaro.
A little after midnight on the morning of February 21, Prach and Hong drove their vehicles to the Astor Drive area of north Stockton, an area claimed by the Asian Street Walkers (ASW) gang, an enemy gang to the TRG. Prach and Hong drove past a young man, Nath Sok, on a bicycle. Sok was a documented ASW gang member. Prach and Hong made U-turns and came back to stop near Sok. Prach said something casually to Sok, who responded more boisterously. Several men from the van and car got out. A witness saw several of these men fire guns numerous times at Sok until Sok looked like a "pile of rags." According to testimony they then calmly got back in their vehicles and cruised slowly away. At about 12:30 a.m., Stockton police officers responded to a report of a shooting on Astor Drive. When they arrived, they found Sok lying dead on the lawn next to the bicycle. He had been shot in the neck, head, and groin. Six .40-caliber shell casings were found; five in the middle of the street and one on the sidewalk next to the bike. Bullet holes were found in an adjacent house and carport, as well as in a bedroom wall inside the house.
Meanwhile, Prach drove his van to Jill Circle, another area of north Stockton. The Jill Circle area is known to be frequented by members of the Loc Town Crips (LTC) and Asian Boyz (ABZ), other enemies of the TRG. Chhithdra Or, an LTC gang member, saw a van, later identified as Prach's van, slowly drive down the street. Or saw the van's slider door open, revealing TRG gang member Reachhetra Pheng holding a gun. Or saw sparks from the slider door of the van and Savoeun Yin, a documented member of the ABZ gang, whom Or had been talking to on the street a few minutes earlier, was shot. Yin was shot in his hand, resulting in a crushed finger that had to be amputated, and in the scrotum, an injury that required him to learn to walk again. The van drove off.
Cartridge cases found at Jill Circle and those from Astor Drive were examined and determined to have been fired from the same gun. Police investigation led them to Hong and several of his TRG gang friends, who eventually identified Prach as the driver of the van involved in both shootings. According to Detective Nance, the two shootings were done for the benefit of a criminal street gang. Prach was a documented TRG member and according to Nance, he was an active member as of the date of the shootings. Nance testified non-gang members would not be allowed to be involved in a drive-by shooting. She also opined the driver has a very important role in a drive-by shooting.
At trial, Prach testified he was not the driver of his van that night.
Prach was convicted by jury of first degree murder, two counts of shooting a firearm from a motor vehicle, one count of shooting at an occupied dwelling, one count of conspiracy to commit murder, one count of attempted murder, and one count of being an active participant in a criminal street gang. The jury also found true various allegations and special circumstances for sentence enhancement purposes. Prach was sentenced to state prison for a life term, without the possibility of parole, on the first degree murder count and accompanying gang special circumstance, in addition to other terms for other special circumstances found true. On direct appeal, the California Court of Appeal, Third District, affirmed the judgment and sentence except that it struck of a criminal street gang enhancement and a parole revocation fine.
Prach contends that the following trial court errors deprived him of his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution:
(A) erroneous discharge of a holdout juror; (B) instructional error in response to a jury question; and (C) erroneous refusal of a defense request for intoxication instructions.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Additionally, this petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
The jury began deliberating on the afternoon of December 12, 2006, and continued on December 13, 14, 15, 19, and 20. They periodically asked questions, requested read back of testimony, and to review videotape exhibits.
On the morning of December 21, the jury foreperson passed the trial court a note asking to speak with the court privately. The court and the parties met with the foreperson outside the presence of the rest of the jury. The foreperson described a problem with Juror No. 4. According to the foreperson, Juror No. 4 "started out our deliberations the very first day, when she walked in, she said, 'I beat the IRS and all their lawyers. I beat seven lawyers and took all my grandchildren away from my alcoholic children. And you don't fuck with this bitch.'" Juror No. 4 made the statement in a bragging fashion. The foreperson said: "She is bipolar, we believe. We believe that she's psychotic. She jumps up and down. She screams at everybody. She will go off into the bathroom and stay there for several minutes. And then she'll turn around and just smile sweetly as if nothing happened. [¶] She told us in the beginning that, 'This is my opinion and nothing you say can change my mind. You can talk until you're blue in the face, but nothing will change my mind.' [¶] We've spent all of this time showing her evidence after evidence. It's been eleven jurors to this one person. And people have been patient. Nobody has been yelling, nobody has been swearing, except this one person. [¶] And, I'm not bringing this to the Court because I differ with her opinion. I'm bringing this to the Court because of her temper tantrums and because of- of the way that she's treating other jurors. She threatened this morning to change-she's actually threatened that, 'I will change everything else that we've done.' She said, 'I will call in sick and let you get another juror and start all over again with an alternate.' She's made several threats of this type. [¶] I don't know where to go from here."
When asked by the trial court if Juror No. 4 had participated in deliberations, the foreperson responded: "She doesn't participate. What she does is she sits there and listens and doesn't say a word. Then when she talks and people raise their hands to respond, she shuts everybody off and she yells at them and said [sic], 'Now I've sat here and listened to you, so you sit and listen to me.' And then she made the statement, she said, 'This is what I feel and I don't want any response from anybody. This is what I feel. And there's-and there's nothing you can say to change my mind.'" She never considers other viewpoints.
The foreperson revealed the jury had reached verdicts on all but one count and that the foreperson had signed the verdict forms on the agreed counts in the presence of all of the jurors. Now Juror No. 4 was threatening to go back on those counts. According to the foreperson, "this morning it was really ugly. She just started yelling. And-and I'm a pretty calm person and I finally just sat up and I said, 'Would you please lower your voice, there's no need to be shouting at people.' [¶] And then she started yelling again that, 'I won't take these personal attacks.' And there are not personal attacks, we are just trying to get her to listen to the evidence that the other eleven jurors can see."
The foreperson was excused and the court discussed the situation with the parties. The prosecutor commented that Juror No. 4 had not disclosed on her jury questionnaire any of her prior experiences with lawyers. Defense counsel noted the questionnaire asked: "Have you ever had a bad experience with any type of attorney?" Since Juror No. 4 claimed to have beaten the attorneys in the matters she brought up, defense counsel thought she might have considered her prior experiences as a good experience with attorneys. The parties and court agreed each juror should be questioned individually and privately.
Juror No. 1 indicated Juror No. 4 was being "very inconsistent." She went "from one extreme to another emotionally." She was "very angry" and "not willing to work with us." The court pointed out there is a difference between someone who may not agree with other people's opinions and someone who is not willing to engage in ...