The opinion of the court was delivered by: Jr. James K. Singleton, Jr. United States District Judge
Victor Bernard Trillo, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Trillo is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Correctional Training Facility. Respondent has answered, and Trillo has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial in January 2002, Trillo was convicted in the Sacramento County Superior Court of Murder in the Second Degree (Cal. Penal Code § 187(a)). The jury found as true that Trillo had personally used and discharged a firearm causing great bodily injury (Cal. Penal Code §§ 12022.5(a)(1), 12022.53(d)). The trial court sentenced Trillo to a prison term of 15 years to life on the second-degree murder conviction and a consecutive term of 25 years to life for the use of a firearm, for an aggregate sentence of 40 years to life. Trillo timely appealed to the California Court of Appeal, Third Appellate District, which affirmed his conviction and sentence in an unpublished, reasoned decision.*fn1 The California Supreme Court denied review on March 2, 2005.
On January 23, 2006, Trillo filed a petition for habeas relief in the Sacramento County Superior Court. After holding an evidentiary hearing, the Sacramento County Superior Court denied his petition on May 5, 2008, in an unpublished, reasoned decision. On May 25, 2006, while his petition for habeas relief was pending before the Sacramento County Superior Court, Trillo filed a Petition for relief in this Court. This Court stayed the petition pending exhaustion of Trillo's state-court remedies. On June 20, 2008, Trillo filed a petition for habeas relief in the California Court of Appeal, Third Appellate District, which was summarily denied without opinion or citation to authority on July 24, 2008. Trillo's subsequent petition for habeas relief inthe California Supreme Court was summarily denied on January 21, 2009. Trillo filed his Amended Petition in this Court on January 27, 2009. Respondent moved for dismissal of the Amended Petition on the ground that Trillo had not exhausted his state court remedies as to one of his two prosecutorial misconduct claims. This Court denied that motion.
As summarized by the California Court of Appeal, the facts underlying Trillo's conviction are: While the many witnesses gave differing versions of exactly what happened the night of the shooting, the general events surrounding the shooting were undisputed. Margo Corona decided to have a party at her house to celebrate her birthday, as well as the birthdays of Joe Aguilar and another friend. The party had a Hawaiian theme and 30 friends and co-workers were invited. The party was held in the backyard; there was loud music and a lot of alcohol.
After midnight the partygoers went to a bar, American Spirit. When the bar closed, they returned to Margo's. Several other people at the bar, including [Trillo] and his friends George Munoz and Jose Padilla, joined the after-party.
Back at Margo's, Joe Aguilar and Jesse Laxton got into a fist fight on the front porch. Margo was very upset and told everyone to leave. As people left, there was confusion and yelling. Several men took their shirts off and began fighting.
[Trillo] was in the street firing a gun in the air and yelling, "get the fuck back." He lowered the gun and fired, hitting Margo's 19-year-old nephew, Aaron. [Trillo] got in a car and drove away. The next day he left for Oregon to visit his father. A few days later he went to visit relatives in South Carolina. He was arrested there in early September.
Police found six spent .40 caliber shell casings at the scene. The shells came from the same gun. A buck knife was found near the victim's blood. Small drops of blood on the knife matched Aaron's DNA. Two usable prints on the knife could not be matched to Aaron, [Trillo], or [Trillo's] friends. Statements were introduced from two emergency medical personnel that they did not see a knife when they arrived at the scene. A search of the getaway car, a maroon Honda, revealed paperwork in [Trillo's] name in the trunk as well as a .40 caliber clip. There was no blood in the Honda. The victim died from a gunshot wound to the head. The wound was of an indeterminate range, but not a contact range wound.
Several neighbors testified they heard gunshots and called the police. One testified that after the shooting she saw a man run after a purple Honda yelling for it to stop. When the car stopped, he got in, and the car took off. The man was limping. Several of the neighbors heard yelling; one testified it was not "a happy scene" and another said she felt it would get out of hand. One neighbor heard someone yell after the shooting, "you fool, it is your fault, you stupid, it is your fault."
Margo Corona testified she knew [Trillo] and his cousin George Munoz. She had met Munoz about a month and a half before the party at American Spirit. Munoz and [Trillo] came over twice, once for a barbecue and once to watch a movie. Munoz called her often, but she was not interested in him due to the 10-year age difference. She also thought they had nothing in common. Margo did not like Munoz's attitude; he flashed his tattoos and talked about where he was from a lot. She did not invite Munoz and his friends to the party; she did not want them there. She saw Munoz and [Trillo] at the bar the night of the party, but did not invite them back to her house. They came anyway and Munoz came in her kitchen and asked why she had not called. He asked if she was seeing someone. When she said yes, Munoz responded, "already" and "cool" and left. Margo did not ask Munoz to leave her house.
When Margo saw Joe Aguilar and Jesse Laxton arguing on the front porch, she told them to knock it off, but they started fighting. While they were fighting she saw something silver drop fall from Joe Aguilar's pocket and assumed it was a gun. She later told the detective that Joe dropped a gun and Roger Delgado picked it up. Margo did not want problems at her party and went in the backyard and told everyone to leave. There were guys in the street arguing; some had taken their shirts off and began fighting. She yelled at them to leave and told them she would call the police. Her nephew Aaron told her not to worry, he would make them leave. As she ran to the house to get the phone, she heard gunshots.
Margo testified Aaron had a black folding knife he used for construction. It was similar to the knife found near his blood.
Catarino Aguilar was a key prosecution witness because he alone identified [Trillo] as the shooter. He was the roommate of Joe Aguilar, although not a relative. He noticed [Trillo] at American Spirit because when he went to the restroom [Trillo] approached his girlfriend. Catarino told [Trillo] the girl was with him and [Trillo] responded "gensa" which meant "excuse me." Catarino told the detective he was mad at [Trillo] for approaching his girlfriend and he was going to keep an eye on him because he "had it in for this motherfucker."
Later when Margo told everyone to leave because there was a fight in the front, Catarino grabbed two knives from the kitchen. He saw a group of men who had taken their shirts off; [Trillo] was part of that group. [Trillo's] group walked to a car and [Trillo] came back. [Trillo] was angry and hostile, firing the gun in the air. [Trillo] brought the gun down, pointed it ahead, turned the gun sideways and fired. The shot lifted the victim off his feet. The victim was five or six feet from [Trillo].
Catarino testified Aaron did not get back when [Trillo] fired the warning shots; Aaron was "just crossing the street" and Catarino did not see a knife in his hand. Catarino also told the detective that [Trillo] knew he had let off three rounds and "his life is in danger" because there are more people with guns, but Catarino did not see any other guns.
Dennis Filippi knew Margo from high school. He testified that after he heard there was a fight in the front he saw people taking off their shirts; some of them had tattoos. He told the detective this group was "more hardcore," gangster types with "a lot of tats." The group "ran up" on Robert Munoz and then on someone else. After the fight was broken up, it was hectic in front; people were motioning as if they had weapons. He told the detective it was kind of like a mob riot.
Roger Delgado also knew Margo from school. He saw the fight between Joe Aguilar and Jesse Laxton. He saw Joe's pager fall during the fight. After Margo yelled that the party was over there was a big crowd in the front yard. A few took their shirts off. Someone behind Delgado had a gun. Delgado put his hand on it and said, "we don't need that shit here." The gun was a semiautomatic.
Jose Padilla was a friend of [Trillo]. They were both from Madera. Padilla owned a purple Honda Accord and lived with Munoz and [Trillo]. Both he and [Trillo] were members of the gang VTW, Varrio Tiny Wino, in Madera. Under questioning by the prosecutor Padilla denied he knew any gang rules regarding respect. He claimed the rules regarding retaliation depended on the individual. "I just live my own."
The night of the shooting he owned three guns, including a .40 caliber Ruger semiautomatic. The next morning his guns were gone.
Padilla testified that after Margo told everyone to leave, someone said something that offended him and he took his shirt off. The person's friend said he was drunk, so Padilla said okay and turned away. He left his shirt in the yard. Padilla, Munoz and [Trillo] got in the car; [Trillo] was driving. The car stopped and they got out. He did not know why they stopped. People were fighting and someone hit him. He fought with someone until he heard gunshots. He turned and saw the car leaving; Tina was driving and he got in. [Trillo] and Munoz were in the backseat. At trial, for the first time, Padilla said [Trillo] complained his back hurt.
Tina Lopes-Arteaga was a friend of [Trillo]. She had gone to American Spirit that night with Maryann Bedford and afterwards went to Margo's. She claimed she saw 20 or 30 people coming towards [Trillo] and Munoz as they were leaving Margo's. She also claimed she saw a large Hispanic man at the party with a gun in his belt.
Bedford also testified she saw 25 to 30 people confront [Trillo], Munoz and Padilla, although she had not mentioned this to the detective. She testified she saw two older Hispanic men loading a weapon.
Jesse Laxton testified he did not see anyone with a weapon that night. Gabriel Contreraz was a friend of the Corona family and went to Margo's party. He was in the backyard after they came back from the bar and heard someone say his cousin, Robert Munoz, was in a fight. He went out front and saw a guy fire shots in the air and then point the gun down the street and let off a few rounds. He was drunk when he spoke with the detective that night. He told the detective he saw Aaron approach [Trillo] after the shots in the air. Contreraz described the scene to the detective as like the "heat of battle" and said [Trillo] must have thought Aaron was running up on him.
[Trillo] was 19 years old at the time of the shooting; Munoz was 21 and Padilla was 23. [Trillo] explained he grew into being a Norteno and was not jumped into a gang. His gang was called the Varrio Tiny Winos after older guys who were the Varrio Town Winos. If a gang member was disrespected it all came down to the situation as to how one reacted. Some might react violently and others would not. [Trillo] had a juvenile record for attempted burglary, giving a false name and a drug warrant.
On August 5, 2000, [Trillo] and his friends were planning to go to Hot August Nights in Reno. The trip was delayed because a friend was still fixing his car. Instead, they went to American Spirit where they heard about the party at Margo's. When they got to Margo's, [Trillo] was putting CD's in the trunk when he saw Padilla's gun. He put it in his waistband because at other after-parties he had seen such things and he wanted to fit in. At other parties people showed tattoos and guns and he was "stereotyping Margo's friends."
After Margo told everyone to leave, [Trillo] walked through the front door and saw a guy with a gun. [Trillo] pulled up his shirt, showed his gun, and made eye contact with Delgado. Delgado said there was no need "for that shit" and [Trillo] turned away. [Trillo] saw Padilla arguing with someone; Padilla had his shirt off.
[Trillo] and his friends got in the car and [Trillo] heard Padilla say, "fuck you" to people as they began to drive away. People were yelling at the car. It moved forward a few feet and then the back door flew open and Padilla jumped out. Munoz also got out of the car. Padilla was fighting and Munoz was on the ground. [Trillo] got out and people came towards him. He pulled out the gun and fired into the air, saying "get the fuck back." [Trillo] was hit in the back; he turned but saw no one. Then he saw someone approaching and he saw what looked like a knife. He fired twice and ran back to the car. The man with the knife was within five feet of [Trillo] when he fired. [Trillo] testified he thought he would be stabbed if he did not shoot. [Trillo] admitted there had been nothing to prevent the car from leaving before.
[Trillo] went to his friend Jaime Almuina that night. There was blood on [Trillo's] back and Almuina bandaged the wound. Almuina testified the wound was one-half inch and swollen. When [Trillo] was arrested one month later he had a minor cut on his back. A pathologist for the People testified that from a picture of the wound it appeared only a day or two old. A defense pathologist testified it was possible the injury was one month old. No human material was found on the knife that was found at the scene.
A professor of criminal justice testified the drops of blood on the knife were consistent with back spatter from a medium to high velocity force. Back spatter travels only a few feet. The blood on the knife most likely was spatter from the victim. It was possible there was no blood on the handle because someone was holding the knife.
Another professor of criminal justice testified for the defense as a gang expert. He explained there were great differences in gangs; some were extremely violent and in others kids just walked up to join. Fourteen to thirty percent of adolescents were involved in gangs. The general purpose of a gang is loyalty, camaraderie, and something to belong to. The automatic response to disrespect varies on the circumstances. If a lot of friends are watching one may be prompted to act; that is not just gang behavior but teenage behavior. Being there for your friends is a virtual requirement in a gang, but it is not uniform.
The final witness was [Trillo's] friend and cousin George Munoz, also from Madera. He testified that when they were leaving Margo's, Padilla reacted to a "disrespective comment." As they were leaving guys were yelling at them because they were not from around there. Someone called them a bunch of punks. Padilla jumped out of the car. Munoz got out "to address the issue" and was hit. Padilla was also "getting jumped." The hitting stopped shortly after the shots were fired. The car was leaving and Munoz whistled; it stopped and he got in. [Trillo] was curled up in pain.*fn2
II. GROUNDS RAISED/DEFENSES
In his Amended Petition Trillo raises six grounds: (1): prejudicial admission of evidence of gang membership; (2) exclusion of exculpatory evidence; (3) prosecutorial misconduct in closing argument; (4) juror bias/misconduct; (5) ineffective assistance of trial counsel in failing to pursue the issue of juror bias/misconduct; and (6) ineffective assistance of trial counsel in failing to object to prosecutorial misconduct. In his answer, Respondent has not asserted any affirmative defense.*fn3
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisor power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn9 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn10 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn11 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn14 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing an original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn15 This is considered as the functional equivalent of the appeal process.*fn16 Under AEDPA, the state court's findings of ...