The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner 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 2006 conviction for attempted murder, attempted robbery and other related counts. The trial court sentenced petitioner to a determinate term of seventeen years with a consecutive indeterminate term of twenty-five years to life. This action is proceeding on the original petition filed October 13, 2009, raising the following claims: 1) petitioner did not knowingly waive his right to a jury trial when he agreed to a bench trial; 2) insufficient evidence to support the gang enhancement, attempted robbery and attempted murder counts; and 3) ineffective assistance of trial and appellate counsel.*fn1
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S. Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California court of appeal contains a factual summary that the court adopts below.*fn2
Shortly after midnight on the night of February 21, 2005, Justin Starks was walking home from Kaiser Permanente Hospital in South Sacramento. As he walked on Grandstaff Drive a white Crown Victoria passed him. Those in the car yelled profanities at him as it passed. Starks continued walking. As he approached the intersection at Maybelline Way, [petitioner and Gaines] crossed the street and accosted him. [Petitioner] had a gun. He put it to Starks's neck, asking who Starks was. Defendant Gaines, meanwhile, was reaching into Starks's right coat pocket. Starks grabbed the barrel and pushed the gun away. [Petitioner] put the gun away. He asked where Starks was from. Starks recognized [petitioner] as someone he had seen two weeks earlier. [Petitioner] said to defendant Gaines: "It's cool." Defendant Gaines said "no," that he was "going to check [Starks's] pockets anyway." He reached into Starks's pocket again.
Starks reached in and removed defendant Gaines's hand. Defendant Gaines grabbed Starks by the shirt collar and began punching him in the face. During the altercation Starks heard two gunshots and defendant Gaines announced he had been shot by [petitioner]. [Petitioner] "continued to shoot" at Starks who attempted to flee. He heard several more gunshots. He was hit in the lower back and the buttocks and fell to the ground. [Petitioner and defendant Gaines] ran off. Sacramento Police Officer Sean Lewis arrived at the scene about 12:08 a.m. Lewis found a nine-millimeter shell casing at the scene of the shootings, less than a foot from where Starks was lying.
On the night of the shootings, Jose Gil was working as an EMT at Kaiser Permanente Hospital in South Sacramento. Sometime between midnight and 12:30 a.m. he was taking a break in the ambulance bay adjacent to the emergency room. A white Crown Victoria screeched up. A picture of the car, taken at the hospital, was identified by the victim Starks as the one involved in the incident preceding his being shot.
There were four men in the car, including [petitioner and Gaines]. [Petitioner] was driving, defendant Gaines was in the back seat on the passenger side. The other men were making a commotion, calling on Gil for help as defendant Gaines had been shot. The others were reassuring defendant Gaines, saying: "We're your homeys. We'll work Crips. You will be all right."
Gil went to the car to help get defendant Gaines out. Defendant Gaines was bleeding. Viscera protruded from his abdomen wound. Gil saw a semiautomatic handgun sitting on the front seat of the car. Defendant Gaines received emergency treatment and was taken in for surgery. However, [petitioner] and the other two occupants of the car soon departed when they heard the police were coming. Gil identified himself, [petitioner and defendant], and the car in monitoring photos admitted into evidence. He testified that an injury shown in a photo of defendant Gaines was a gunshot wound.
Earlier on the evening of the shootings, around 10:30 p.m., [petitioner] and three other African-American males had arrived in the white Crown Victoria at an AM/PM store on Mack Road near Highway 99. As they were departing in the car, another male customer called out a caution to not hit a woman pedestrian. [Petitioner] got out of the car and began striking the male customer; his associates then joined him in beating the man. They all wore blue. At some point [petitioner] was seen by a cashier for the store flashing gang signs with his hands and was overheard to say something about "Valley High Cuz."
Several days later, on the afternoon of March 23, 2005, Sacramento Police Sergeant Charles Husted detained [petitioner]. He ordered him out of the car he was in. Sergeant Husted found a loaded nine-millimeter pistol under the front passenger seat where [petitioner] had been seated. Starks identified the pistol as the one [petitioner] had used on the night he was shot. A criminalist concluded that the shell casing found at the scene of the shootings had been discharged from this pistol.
Sergeant Husted also found a cell phone in or around the front passenger seat. The screen of the phone displayed the words "Crip gang." He called a number in the phone's memory. A female answered. He described [petitioner]. The female said the person Sergeant Husted had described was [petitioner].
Sacramento District Attorney Investigator Adlert Robinson testified as an expert on African-American gangs as follows: Crips is one such gang. Robbery is one primary criminal activity of Crips. Crips wear blue. Valley High Crips is a subset. They are concerned with turf or territory. Leadership is derived from participation in criminal activities, e.g., robberies. [Petitioner] is a Crip gang member, validated by Monterey County Probation. He admitted this to the arresting officers, who saw him throwing gang hand signs. He uses "cuzz," a term of Crip argot. His cell phone displayed the message "Crip gang." He wears blue and he was housed in the Crip cell block. Defendant Gaines by his own admission is a Valley High Crip.
If a gang member is in a confrontation the others in his set are obliged to back him. Physical resistance to a robbery by Crips is disrespectful. Investigator Robinson opined that the robbery of Starks was done for the benefit and at the direction of the Crip gang. He based that opinion on the way [petitioner and Gaines] approached the victim, what they said to Starks when they walked up on him ["where are you from" means with what gang are you affiliated], the fact that [petitioner and Gaines] are Crip gang members, the fact that the crime itself is a crime that is commonly committed by Crip gang members, or street gang members as a whole, and the fact that gang members took care of [petitioner and Gaines] and left the victim to die on the street after the robbery occurred.
People v. Mosley, 2008 WL 344488 at *1-3. \\\\\ \\\\\
Claim 1 - Bench Trial Petitioner argues that he did not make a knowing waiver of his right to a jury trial when he requested a bench trial as counsel never fully explained the ramifications of a jury trial to plaintiff and the trial court never asked if counsel had explained the differences. Petitioner also contends that trial counsel was ineffective in making this decision.
Legal Standard The clearly established federal law on jury trial waiver was set forth in Patton v. United States, 281 U.S. 276, 312-13, 50 S.Ct. 253, 263 (1930), namely, the general rule that a jury waiver must be voluntary, knowing, and intelligent. See Adams v. United States, 317 U.S. 269, 276, 63 S.Ct. 236, 240 (1943) (Patton established that a defendant may waive a jury in the exercise of a free and intelligent choice); Brown v. Burns, 996 F.2d 219, 221 (9th Cir. 1993) (per curiam) (citing Patton as the clearly established federal law that a jury trial waiver that is voluntary, knowing, and intelligent is constitutionally valid).
This claim was brought on direct appeal and denied in a reasoned opinion by the court of appeal.
[Petitioner and co-defendant Gaines] contend that the trial court erred in denying their motions for new trial based on the claim that their waivers of trial by a jury were not knowing and intelligent. [Petitioner] argues that the trial court was compelled to grant his motion because he averred that he was confused and did not understand his right to a jury trial and because his counsel did not discuss the matter with him until the case was assigned to a trial court . . . Neither argument is persuasive and the contentions of error have no merit. "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel." (Cal. Const., art. I, § 16.) There is no requirement that the trial court engage in a particularized inquiry to determine whether the express waiver is knowing and intelligent. However, "[i]t is probably the better practice for the trial judge, by inquiry, to make sure that the defendant understands the right to a jury trial." (5 Witkin, Cal.Criminal Law (3d ed. 2000) Criminal Trial, § 452, p. 648.)
This does not entail telling a defendant who is represented by competent counsel about " 'all the ins and outs' of a jury trial" (People v. Wrest (1992) 3 Cal.4th 1088, 1105; People v. Lookadoo (1967) 66 Cal.2d 307, 311); the relative advantages of the different types of trials (see, e.g., People v. Acosta (1971) 18 Cal.App.3d 895, 902); or that a jury trial requires a unanimous verdict (see People v. Tijerina (1969) 1 Cal.3d 41, 45-46).
The trial court does not have to elicit the reasons for a jury trial waiver when the defendant, represented by competent counsel, appears to make an intelligent, knowing and voluntary waiver of his right to a jury trial on the record, and indicates he has no questions or need to discuss the matter with counsel. (See People v. Diaz (1992) 3 Cal.4th 495, 571; People v. Robertson (1989) 48 Cal.3d 18, 36-38.) The appellate court will not reverse a jury trial waiver which otherwise appears voluntary, knowing and intelligent based on the defendant's posttrial assertion he did not understand some aspect of a jury trial. (See, e.g., Diaz, at pp. 570-571.)
The same general considerations apply to the trial court in considering a motion for new trial. [Petitioner] had half a day to consider the jury trial waiver. We see no basis to require a longer period for reflection or deliberation between the time that defense counsel raises the tactical question and the time for making the waiver. (Cf. People v. Watts (1977) 67 Cal.App.3d 173, 182-183, when time is requested, one hour is a reasonable time to contemplate a plea bargain.) The decision may even be made after the selection of the jury has begun. (People v. Medina (1935) 9 Cal.App.2d 259, 260.) Remorse after the court trial has an unsatisfactory outcome is not evidence that the waiver was unknowing or unintelligent. If that were allowed as a basis to obtain a retrial, every court trial would be infirm.
Similarly, a posttrial assertion that the defendant did not understand his right to a jury trial will not suffice. The defendant must, at a minimum, assert some particularized material lack in knowledge about the decision and persuade the court that if he had been better informed he would not have agreed to the waiver. (Cf., e.g., In re Alvernaz (1992) 2 Cal.4th 924, 938 [prejudice required to set aside rejection of a plea bargain on grounds of ineffective assistance of counsel, i.e., must show that with effective assistance would have accepted the offer].) [Petitioner] made no showing of a particularized material lack in knowledge about the decision to waive a jury trial.
For all the foregoing reasons, [petitioner and co-defendant Gaines'] contentions that the trial court erred in denying their motions for new trial based on the claim that their waivers of trial by a jury were not knowing and intelligent has no merit.
People v. Mosley, 2008 WL 344488 at *3-4
Petitioner argues that trial counsel never fully explained the ramifications of waiving a jury trial and counsel purposely used deception and trickery in forcing petitioner to make the waiver. Petitioner states this all occurred 20 minutes prior to a jury being selected.
Traverse at 3.*fn3 Petitioner faults the trial court by not explicitly asking petitioner if trial counsel explained the differences.
Regardless of what trial counsel may have said to petitioner, a review of the record indicates that the trial court properly explained what rights petitioner and co-defendant Gaines were waiving.
THE COURT: [Petitioner] and Mr. Gaines, let me advise you of specifically what it is that you are agreeing to. As you can tell based on the Information in this case, there are a number of charges that have been filed against you. If convicted of all these charges, you are facing potentially life sentences if convicted. Has anyone figured out what the minimum sentence is in this case? [PROSECUTOR]: Your Honor - THE COURT: Five three, would be 25 years to life, but there would be 25 years to life, but there would be determinative sentences. [PROSECUTOR]: One moment, your Honor. I need to play it safe, I think it would be somewhere in the neighborhood of something like, for [petitioner], just to play it safe, it would be something like 19, 19 years eight months, plus 25 years to life. And I'm just sort of throwing in the 664/187 as a 664/654 to a 664/211. THE COURT: All right. [PROSECUTOR]: But, but, I , I guess, theoretically, it could be larger than that. THE COURT: [Petitioner] and Mr. Gaines, do you both understand if you are both convicted, that you are facing life sentences in this case?
DEFENDANT GAINES: Yes, sir.
THE COURT: That your minimum eligible parole period could be in excess of 45 years. Do you both understand that? [PETITIONER]: Yes, sir.
DEFENDANT GAINES; Yes. [PETITIONER'S COUNSEL]: Your honor, I think if would be prudent, since we are taking up this issue, a recital of any offers available.
THE COURT: Are there any offers at this point?
[PROSECUTOR]: At this point, today, there are no offers.
THE COURT: Obviously, if there are some offers on table as we are proceeding through this process, I'm sure both [petitioner] and Mr. Gaines would welcome the opportunity to potentially resolve this if possible. Again, let me specifically advise you what you are agreeing to:
You have the right to have twelve members of this community listen to the evidence, and decide whether or not both of you, both [petitoner] and Mr. Gaines, both of you are guilty of the offenses set forth in this Complaint;
Also, whether or not the enhancements, that this offense involved or was committed in the commission and in furtherance of criminal street gang, and the enhancement that the offenses were committed by the personal discharge of a firearm resolved and litigated before a jury.
And, ultimately, that the jury would have to find beyond a reasonable doubt that the base offense, as well as those enhancements are proven true.
In other words, they must find you guilty. That's twelve members of the community must unanimously find you guilty.
[Petitioner], do you understand that? [PETITIONER]: Yes, sir.
THE COURT: Mr. Gaines, do you ...