The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
Petitioner, Daladier Fitzgerald Montue, Jr., is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented on March 24, 2009 to have a United States Magistrate Judge conduct all further proceedings in this case. Respondent consented on July 17, 2009. Petitioner is currently serving a sentence of fifteen years to life imprisonment following his conviction for discharging a firearm at an occupied motor vehicle along with an enhancement for committing the offense for the benefit of a criminal street gang. Petitioner raises several claims in his petition; specifically: (1) there was insufficient evidence to support the conviction for discharging a firearm at an occupied motor vehicle ("Claim I"); (2) the trial court erred in its jury instructions on the elements of the offense of discharging a firearm at an occupied motor vehicle ("Claim II"); (3) the trial court erred in failing to instruct the jury using CALJIC No. 5.32 on the use of force in the defense of others ("Claim III"); (4) the trial court erred in failing to instruct the jury using CALJIC No. 4.43 on the necessity defense ("Claim IV"); and (5) Petitioner's counsel was constitutionally ineffective in several respects ("Claim V"). For the following reasons, Petitioner's habeas petition is denied.
II. FACTUAL BACKGROUND*fn1
This case arose from a turf battle between two competing criminal street gangs in Del Paso Heights, the Del Paso Heights Bloods and the Nogales Crips. On May 18, 2005, Donshea Ransom, a validated Nogales Crip, was on Beldon Street, an area claimed by the Del Paso Heights Bloods. Ransom was talking to James Whitfield. Whitfield, known as Bloodshot, is an older gangster in the Del Paso Heights Bloods gang. Whitfield told Ransom that when he drove by the other day and threw up a Crip hand sign it was disrespectful to the Blood's neighborhood. Ransom apologized and said he would not do it again.
Two days later, defendant and Ransom drove up to Beldon Street in a station wagon. Ransom was driving. Ransom let defendant out at his grandfather's house and defendant went inside. Ransom parked the car. There were a lot of young children outside playing and several women watching them.
Ransom began having words with several young men on the street who were members of the Del Paso Heights Bloods gang. The argument was about a sign Ransom had made. Ransom complained he was not going to let them keep "checking" him for the same thing. He had apologized and did not want to keep being confronted. At least two of the men told Ransom he had "disrespected" them.
Ransom threw down his cell phone and challenged the others to a fight. "Oh, fuck this. Anybody want to fade me. Let's do this." To fade means to fight.
Just then defendant came out of the house in a rage. He told Ransom to get off the block. Ransom returned to the station wagon and left with another Crip. By the time Ransom got to the stop sign, defendant was shooting at the car. Defendant fired seven shots, holding the gun above his head and sideways. Just before the shooting began, Whitfield got the gun out of a car and handed it to defendant.
After the shooting one of the men said, "Come on, man. Let's go get that nigger. We [are] going to get him." The speaker and defendant took off in a Mustang. Others left in another car.
Defendant and Whitfield were charged with attempted murder and shooting into an occupied vehicle, with a gang enhancement. Before defendant's trial, Whitfield entered a plea of no contest to attempted murder and a prior prison term allegation in exchange for an eight-year sentence. As part of the plea agreement, Whitfield agreed he would assert his Fifth Amendment privilege and not testify if called by either the prosecution or the defense in defendant's case.
Defendant testified in his defense. He claimed he had been friends with Ransom since they were children. While he was in the house, he heard arguing and became concerned for Ransom's safety because he was outnumbered. He tried to get Ransom to leave. As Ransom was leaving, Whitfield approached and told defendant that if he did not attack Ransom, Whitfield would kill defendant. Whitfield told defendant to take care of Ransom or he (Whitfield) would take care of defendant. Defendant was afraid for Ransom, so he shot. He did not intend to hit the car or the passengers. Since Ransom was his friend, defendant did not fear that Ransom would return fire.
The jury deadlocked on the attempted murder charge which was then dismissed but convicted Petitioner of discharging a firearm into an occupied motor vehicle in violation of Cal. Penal Code § 246 with a gang enhancement pursuant to Cal. Penal Code § 186.22(b)(1).
On appeal, Petitioner raised the issues he raises in this federal habeas petition minus some of his ineffective assistance of counsel claims. On July 30, 2007, the California Court of Appeal, Third Appellate District affirmed the judgment. The California Supreme Court summarily denied the petition for review on October 10, 2007. Petitioner filed the instant federal habeas petition on October 9, 2008.
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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision with respect to Claims I-IV was from the California Court of Appeal.
With respect to Claim V, Petitioner only raised the issue of whether his counsel was ineffective for stipulating that Petitioner had a prior felony conviction when in actuality it was a misdemeanor conviction to the California Supreme Court. None of Petitioner's remaining arguments within Claim V were raised to the California Supreme Court. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). As Petitioner never raised some of its arguments within Claim V to the California Supreme Court they are deemed unexhausted. See 28 U.S.C. § 2254(b)(1). Nevertheless, unexhausted claims may "be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies in the courts of the State." 28 U.S.C. § 2254(b)(2). A federal court considering a habeas corpus petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable." See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).
V. PETITIONER'S CLAIMS FOR REVIEW
In Claim I, Petitioner argues that there was insufficient evidence to support the conviction for discharging a firearm at an occupied motor vehicle in violation of Cal. Penal Code § 246.*fn2 In Claim II, Petitioner asserts that the trial court erred in instructing the jury on the elements that of § 246 offense. The California Court of Appeal rejected these arguments on direct appeal; specifically, that court stated the following:
Defendant contends there was insufficient evidence of shooting at an occupied vehicle because there was no evidence defendant fired "at" the car. Defendant argues that since he failed to hit the car, a large and close target, he must not have been trying to hit it or aiming "at" it. He further contends the trial court erred in responding to the jury's question about the requirements of Penal Code section 246. He asserts the evidence shows only that he negligently discharged a firearm, so the conviction must be reduced to a violation of Penal Code section 246.3.
First, there was substantial evidence defendant fired "at" the car. [FN 2]. Three women witnessed the shooting and testified at trial. The first described the shooting as defendant pointing a gun "towards" Ransom in the station wagon. The second testified, "Rico [defendant] starts shooting at him [Ransom]." The third said, "He was shooting at Donshea, at the station wagon." [FN 2] A detective who examined the car found a small hole in the metal frame. He testified the hole was consistent with a bullet strike, but he could not prove it. In closing argument, defense counsel asserted the hole was on the wrong side of the car to be from the shooting.
The jury was instructed that in order to find a violation of Penal Code section 246, it must find defendant "discharged a firearm at an occupied vehicle [.]" [FN 3] During deliberations, the jury asked, "In the law does the word 'at' mean directly at or in the general direction of (PC 246) [?]" Both counsel met in chambers to review the court's response. The court responded: "A violation of Penal Code section 246 is not limited to shooting directly at an occupied vehicle. Rather, it proscribes shooting either directly at or in close proximity to an occupied motor vehicle under circumstances showing a conscious disregard for the probability that one or more bullets wills trike the vehicle or persons in or around it." [FN 3] The court instructed the jury in the language of CALJIC No. 9.03 as follows: "Every person who willfully and maliciously discharges a firearm at an occupied vehicle is guilty of a violation of Penal Code section 246. [¶] In order to prove this crime, each of the following elements must be proved: [¶] Number one, a person discharged a firearm at an occupied vehicle; and [¶] Number two, the discharge of the firearm was willful and malicious."
Defendant contends it was error to instruct the jury it could convict defendant if he fired "in close proximity" to the car. He argues that instruction permitted a guilty verdict simply because defendant was close to the car when he fired. Defendant contends his goal or objective must be considered and it is clear that he did not intend to hit the car, but purposefully missed it.
Although he frames the issue as substantial evidence or instructional error, defendant's insistence that his goal and objective are the focus of Penal Code section 246 presupposes that section 246 is a specific intent crime, requiring the specific intent to strike the target. Because Penal Code section 246 is a general intent crime (People v. Watie (2002) 100 Cal.App.4th 866, 879), defendant's contention fails.
In People v. Government (2005) 126 Cal.App.4th 1344, defendant was convicted of assault with a firearm and discharging a firearm at an occupied building. The defense was that defendant did not shoot at anyone or any buildings, but discharged his gun into the air. (Id. at p. 1354.) As here, defendant argued if he had been shooting at anyone or anything, he would have hit his targets. (Id. at p. 1355.) During deliberations, the jury asked if, for the crime of shooting at an occupied building, the building had to be the actual target. The court responded it was sufficient that defendant was aware of the probability some shots would hit the building and he was consciously indifferent to that result. (Ibid.)
Defendant challenged this additional instruction on appeal, but the court held it was proper. (People v. Government, supra, 126 Cal.App.4th at p. 1355.) "[S]section 246 is not limited to shooting directly at an inhabited or occupied target. Rather, it proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or person in or around it." (Id. at pp. 1355-1356, italics in original.) The Government court relied on People v. Chavira (1970) 3 Cal.App.3d 988, in which a conviction under Penal Code section 246 was upheld where defendant fired at persons standing outside a building. Since the court's additional instruction here was virtually the same as given in Government, we find no error.
Defendant contends these cases are distinguishable because he did not consciously disregard the probability he might hit the car. Rather, defendant contends, he was careful and avoided hitting anyone or anything. The jury was free to view the facts differently. The jury could reasonably conclude that defendant, described by a witness as in a rage, fired several shots quickly and in the direction of the station wagon in complete disregard of the probability that he might hit the car or someone ...