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Kinson Her v. Francisco Jacquez

April 15, 2011

KINSON HER, PETITIONER,
v.
FRANCISCO JACQUEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Kinson Her, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant 28 U.S.C. § 2254. Petitioner is currently incarcerated after a jury found him guilty of first-degree murder, premeditated attempted murder and discharging a firearm from a vehicle. The jury also found true that Petitioner caused great bodily injury, discharged a firearm and committed the offense to benefit a criminal street gang. In his amended federal habeas petition, Petitioner raised several claims; specifically: (1) there was insufficient evidence to convict Petitioner of murder and attempted murder ("Claim I"); (2) there was insufficient evidence for the jury to find that Petitioner used a firearm during an enumerated felony ("Claim II"); (3) there was insufficient evidence to support the gang enhancement ("Claim III"); trial counsel was ineffective in several respects ("Claim IV"); the trial court erred in not accepting letters from Petitioner as motions regarding his personal conflicts with his trial counsel ("Claim V"); (6) the trial court erred in denying Petitioner's motion for an interpreter at trial ("Claim VI"); (7) the trial court erred in denying Petitioner's motion to exclude any opinion of a bandana ("Claim VII"); (8) the trial court erred in denying Petitioner's motion to bifurcate the gang enhancement ("Claim VIII"); (9) the trial court erred in allowing the gang expert to give prejudicial testimony about a hypothetical question that misrepresented the facts of the case ("Claim IX"); (10) the trial court erred in allowing the gang expert to characterize Petitioner as a "hard core killer" ("Claim X"); (11) the gang expert's testimony violated the Confrontation Clause ("Claim XI"); (12) the trial court abused its discretion in considering the gang detective as an expert ("Claim XII"); (13) the trial court erred by failing to declare a mistrial during voir dire based on prejudicial questions posed by the prosecutor to the prospective jurors ("Claim XIII"); (14) the trial court erred by failing to declare a mistrial when a prosecution witness had illegal and prohibited communication with the jury ("Claim XIV"); (15) the trial court erred denying Petitioner's "995" motion because Petitioner's sentence violates the Equal Protection Clause as one person serving a life sentence can be released before another person serving a life sentence ("Claim XV"); (16) the trial court erred by admitting prejudicial and inflammatory testimony from a witness who believed that threats and reprisals he had suffered were connected to his testimony against Petitioner ("Claim XVI"); (17) the trial court erred instructing the jury using CALJIC No. 5.55 ("Claim XVII"); (18) the trial court erred in instructing the jury using CALJIC No. 2.71.5 ("Claim XVIII"); (19) the trial court erred using CALJIC Nos. 2.03, 2.06, 2.51 and 2.52 (Claim XIX"); (20) the trial court erred in failing to rewrite CALJIC No. 2.90 ("Claim XX"); (21) the trial court erred in instructing the jury using CALJIC No. 5.17 ("Claim XXI"); (22) prosecutorial misconduct in allowing a witness to communicate with the jurors ("Claim XXII"); (23) Petitioner was deprived of his due process right to be sentenced to a term of either a high, medium or low penalty ("Claim XXIII"); (24) Petitioner's statement to police was obtained in violation of his Constitutional rights ("Claim XXIV"); (25) Petitioner's sentence of twenty-five years to life imprisonment violates the Eighth Amendment as it constitutes cruel and unusual punishment ("Claim XXV"); (26) the Court of Appeal's decision in not remanding for re-sentencing violated Petitioner's due process rights ("Claim XXVI"); and (27) cumulative error ("Claim XXVII"). As explained infra, some of these Claims have been withdrawn by Petitioner as stated in his traverse. For the following reasons, Petitioner's habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

This case arises from a drive-by shooting involving rival Hmong gangs. Defendants Her and Lao were members or affiliates of the gang "Masters of Destruction" or "Menace of Destruction," better known by the acronym MOD.

On February 3, 2002, Her and Lao attended a Super Bowl party at Xang Thao's home in Meadowview. After the game, they departed with several MOD members in a minivan driven by Her's cousin, Rindy Her (Rindy).

Fifteen miles away, on the north side of town, a Toyota Camry was stolen. At 8:33 p.m. that same evening the stolen Camry drove past an apartment building at 3212 Western Avenue in Sacramento (3212 Western) and fired weapons at Fong Vue, Vue Heu and Yee Xiong, who were standing in front of the driveway. Heu and Xiong were both affiliated with MOD's chief rival, the Hmong Nation Society or HNS. MOD claims its territory in South Sacramento neighborhoods such as Meadowview, Valley Hi and Oak Park. HNS claims the northern part of the city for its territory, including Western Avenue, where the shooting occurred. Fong Vue died a few days later as a result of shotgun wounds to the head. Xiong suffered head injuries, but survived the attack. Xiong tentatively identified Lao as one of the shooters inside the Camry. Police found shotgun pellets around Fong Vue's body. Bullets and fragments from one or more handguns were also found around the driveway. Spent .45-caliber casings were found on the grass between 3212 Western and the adjacent building.

There was evidence that the targeted victims who were standing in front of 3212 Western had returned the gunfire: Although he denied shooting a firearm himself, residue tests on victim Xiong's hands indicated he had recently fired a gun. The rear window of the Camry was shattered by a bullet that the People's forensic expert determined was likely fired from outside the vehicle and which exited through the front windshield. There were also bullet marks in the rear bumper and spare tire.

Within minutes of the shooting, Police Officer Warren Estrada spotted the Camry making an illegal turn, near Fifth and G Streets in West Sacramento. When he pulled the Camry over, it initially came to a stop, then led Estrada on a high-speed chase through the adjacent neighborhood. At Second and E, three Asian males jumped out of the car and took off running in different directions. Estrada, now on foot, followed one of the fleeing suspects, who came to an embankment, leaped into the river, and began swimming. Estrada jumped in after him, and eventually pulled Lao, who had tired in the current, out of the water. In his wallet, Lao was carrying a piece of paper with the word "MOD" written on it.

Inside the Camry, police found 12-gauge shotgun casings as well as .32-caliber casings. On the floorboard in the back seat was a blue bandana with a fluid stain that was matched to Her's DNA. A blue jacket, later identified as one worn by Her, was found in the back seat of the car. Inside the jacket was a cell phone. The phone rang from a caller identified on the screen as "Xang." [FN 2] Sergeant James Duncan answered, "Where are you at?" The caller responded that they were at the end of the bridge in Old Sacramento, that there were "hella cops around," and that he should meet them on the other side of the bridge. [FN 2] The telephone number displayed on the phone found in the blue jacket matched that of a cell phone belonging to Xang Thao, one of the Super Bowl party attendees.

Using this information, officers went to Old Sacramento and detained defendant Her's cousin Rindy, John Her, Xang Thao and others, who were standing around Rindy's minivan with Xang's cell phone.

Rindy testified that he and his companions were playing pool after the Super Bowl, when they received a call from Her telling Rindy to pick him up at the Money Store. During the call, Rindy heard Lao's voice in the background, saying, "Hurry up." The group tried to get to the Money store, but West Sacramento was inundated with police, so they drove across the bridge into Old Sacramento, where they were arrested.

At 3:00 a.m. the next morning a street sweeper working in West Sacramento recovered a .380-millimeter Beretta semiautomatic pistol and a .32-caliber Colt semiautomatic pistol lying on the side of the road north of E Street. Officers searching the area where the police chase occurred found a 12-gauge shotgun with a pistol grip near F and Second Streets in West Sacramento.

Police later found three unexpended shotgun shells in Lao's closet that were of the same brand as the shells found in the Camry. Lao's fingerprint was lifted from a passenger door of the Camry. Her's girlfriend, Brenda Ly, testified that Her represented himself to be a member of MOD. Somewhere between 9:00 and 10:00 o'clock on the evening of the shooting, Ly received a call from Her, telling her to pick him up at a pay phone booth in West Sacramento. Ly complied. On the way back to her house, Ly noticed that many police cars and helicopters were in the area and asked Her if he knew anything about it. He answered, "No," but then added, "I didn't want to tell you because I [would] rather have you not know."

Ly and Her slept together that night. Between 10:48 p.m. on February 3 and 2:53 the next morning, about 60 phone calls were made from Ly's cell phone, including some to Minnesota. Ly admitted that she only made "a few" of these calls.

Shortly before 11:00 p.m. on February 3, a series of calls was made to the cell phone of Xang Thao, who was then in police custody. Officer Corey Johnson answered the phone, and a male voice with an Asian accent at the other end repeatedly asked for Xang. Johnson kept telling the caller that Xang was busy. The caller became enraged, referred to himself as "Sac High MOD," and threatened to "kick" Johnson's "f'ing ass" if he did not let him speak to Xang. While most of the calls came from blocked numbers, the last one, at 10:45 p.m., was from a caller identified on the screen as "Brenda" and in fact came from Ly's cell phone. The day after the shooting, Her traveled to Minnesota. Her, who was 15 years old, told his girlfriend he was on a "business trip." While he was in Minnesota, he asked Ly to get him the address for Lao, who was by then incarcerated. In April 2002, Ly sent $220 to Her addressed to "John" Her in Minnesota. In July 2002, Her was arrested in Minnesota and transported back to California. Detective Aaron Lee testified as an expert on Asian gangs. MOD is the largest Hmong gang in Sacramento. MOD members commit car thefts, homicides, drive-by shootings, robberies and other violent crimes. There is a history of animosity between MOD and its northern rival, HNS. Younger brothers, cousins or relatives of MOD gang members tend to join smaller groups. One of these groups is the Youth Mafia Society, or YMS. After explaining the various factors that go into validating a youth as a gang member, Lee testified that defendant Her has been a validated member of YMS since the year 2000. Defendant Lao is a validated member of MOD, as letters he wrote from jail bear out his affiliation. Detective Lee described several incidents exemplifying the enduring rivalry and hostility between the MOD's and HNS gang. He told the jury that a gang member who participates in a drive-by shooting enhances his reputation within the gang and sends a message to the community to fear and respect the gang. Gang members do not normally tread into the territory of their rivals. Presented with a hypothetical drawn from the evidence in this case, Lee opined that a drive-by shooting committed in well-known HNS territory by three MOD members was committed for the benefit of the MOD street gang. (Slip Op. at p. 2-7.)

III. PROCEDURAL HISTORY

After Petitioner was found guilty, he was initially sentenced to life without the possibility of parole on the murder conviction, supplemented by an indeterminate consecutive term of 25 years to life, plus 20 years. (See Slip Op. at p. 2.) On direct appeal, the California Court of Appeal, Third Appellate District affirmed the conviction. However, due to Petitioner's age at the time of the offense, the Court of Appeal modified Petitioner's sentence on the murder conviction to twenty-five years to life imprisonment with the possibility of parole.

Petitioner filed a petition for review to the California Supreme Court. In that petition, Petitioner raised five issues; specifically: (1) whether the trial court erred by allowing the gang expert (a) to give unsupported and incendiary opinions, (b) to testify in response to a faulty, hypothetical which both denied Petitioner a fundamentally fair trial and (c) the gang expert's testimony violated the Confrontation Clause ; (2) whether the inflammatory testimony by a witness to the effect that he had suffered reprisals, years earlier, which he believed to be connected to Petitioner denied him a fair trial; (3) whether the Court's instruction to the jury on the theory of pretextual self-defense (CALJIC No. 5.55) constituted reversible error; (4) whether the Court committed error in instructing the jury that imperfect self-defense would be unavailable to one who by his unlawful or wrongful conduct created the circumstances legally justifying his adversary's use of force; and (5) whether Petitioner's sentence of twenty-five years to life, under the facts of this case, constituted cruel and unusual punishment. The California Supreme Court issued a summary denial on March 12, 2008.

In January 2009, Petitioner filed a state habeas petition in the Superior Court of California, County of Sacramento. Among the claims included in this state habeas petition were the following: (1) insufficient evidence to convict Petitioner of murder and attempted murder on a direct theory of liability; (2) insufficient evidence to convict Petitioner of murder and attempted murder as an aider and abettor; (3) insufficient evidence to convict Petitioner of murder and attempted murder; (4) insufficient evidence to support the gun enhancement finding; (5) insufficient evidence with respect to the gang enhancement finding; (5) failure of the trial court to conduct a Marsden hearing when Petitioner wrote to the court expressing Petitioner's personal conflicts with trial counsel; (6) Petitioner's statement to police was obtained in violation of his Constitutional rights; (7) trial court error by denying Petitioner's motion to exclude opinion testimony of the bandana; (8) ineffective assistance of counsel through a misstatement by defense counsel during closing argument; (9) trial court error in failing to bifurcate the gang enhancement; (10) ineffective assistance of counsel for failing to investigate a witness named Vang; (11) trial court error by failing to declare a mistrial when a prosecution witness had illegal and prohibited communications with the jurors; (12) ineffective assistance of counsel when counsel failed to move for a mistrial due to a prosecution witness's prohibited conversations with the jury; (13) ineffective assistance of counsel in failing to present a defense expert on behalf of petitioner on his self-defense theory; (14) prosecutorial misconduct when the prosecutor allowed one of its witnesses to talk to the jury; (15) ineffective assistance of counsel for failing to object to the inflammatory characterization of Petitioner by the gang-expert; (16) jury instructional error through the use of CALJIC 1.00, 2.03, 2.06, 2.51, 2.52, 2.90 and 5.17; (17) trial court error in denying Petitioner's "995" motion; (18) due to Petitioner's youth, he was deprived to have three possible sentence terms of high, medium and low penalties; and (19) cumulative error. On March 9, 2009, the Superior Court denied the state habeas petition in a written opinion.

In April 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (See Resp't's Lodged Doc. 12). In that petition, Petitioner raised the issues outlined above (amongst others). The California Court of Appeal summarily denied the petition on April 20, 2009.

In June 2009, Petitioner filed a state habeas petition in the California Supreme Court, Case No. S174121. (See Resp't's Lodged Doc. 19.) Among the claims that Petitioner raised in that state habeas petition were the following: (1) there was insufficient evidence to convict Petitioner of murder and attempted murder on a direct theory of liability; (2) there was insufficient evidence to convict Petitioner of murder and attempted murder as an aider and abettor; (3) there was insufficient evidence to convict Petitioner of murder and attempted murder;

(4) there was insufficient evidence supporting the use of a firearm during an enumerated felony enhancement; (5) there was insufficient evidence to support the gang enhancement because the prosecution failed to prove Petitioner's membership in an ongoing association of three of more persons; (6) there was insufficient evidence presented concerning the primary activities of YMS, or even MOD; (7) there was insufficient evidence to show that Petitioner acted with the specific intent to promote, further or assist in any criminal conduct by gang members; (8) ineffective assistance of counsel when trial counsel failed to investigate a witness named Vang; (9) ineffective assistance of counsel by failing to object to the prosecution witness' inflammatory characterization of Petitioner; (10) ineffective assistance of counsel for failing to object to the gang expert's characterization of Petitioner as a "hard core killer"; (11) ineffective assistance of counsel for giving an example during closing argument that defeated the theory of self-defense; (12) ineffective assistance of counsel for failing to present an expert witness at trial; (13) ineffective assistance of counsel for failing to request an inquiry into Detective Stigerts communications with the jury; (14) trial court error in failing to accept letters from Petitioner as a motion with respect to Petitioner's conflicts with trial counsel; (15) trial court error in denying Petitioner's request for an interpreter; (16) trial court error in denying Petitioner's motion to exclude any opinion with respect to the bandana; (17) trial court error in denying Petitioner's request to bifurcate the gang enhancement; (18) trial court error in allowing gang expert to give testimony with respect to a hypothetical that misrepresented the facts of the case; (19) trial court error in allowing the gang expert to testify that Petitioner was a "hard core killer"; (20) the gang expert's testimony violated the Confrontation Clause; (21) the trial court abused its discretion in considering the gang detective an expert; (22) trial court error in failing to declare a mistrial during voir dire; (23) trial court error in failing to declare a mistrial when Detective Stigerts had communications with the jury; (24) trial court error in denying Petitioner's "995" motion; (25) trial court error in admitting prejudicial and inflammatory testimony from a witness who believed that threats and reprisals he had suffered years earlier were connected to his testimony against Petitioner; (26) jury instructional error on the theory of pretextual self-defense; (27) jury instructional error on the theory of "adoptive admissions"; (28) jury instructional error in using CALJIC 2.03, 2.06, 2.51 and 2.52; (29) jury instructional error in denying Petitioner's motion to re-write CALJIC 2.90; (30) jury instructional error in using CALJIC 1.00; (31) jury instructional error using CALJIC 5.17; (32) prosecutorial misconduct; (33) due to Petitioner's youth, he was deprived to have three possible terms of high, medium and low penalties; (34) Petitioner's statement to police was obtained in violation of his Constitutional rights; (35) Petitioner's sentence of twenty-five years to life violates the Eighth Amendment and is contrary to widely accepted international norms for the treatment of child offenders; (36) cumulative error. On November 19, 2009, the California Supreme Court summarily denied this state habeas petition. (See Pet'r's Am. Pet. at Appendix IV.)

As those state habeas petitions were proceding through the state courts, Petitioner also filed a different state habeas petition in the California Court of Appeal in August 2009. That petition raised two claims; specifically: (1) Petitioner's sentence of twenty-five years to life imprisonment constituted cruel and unusual punishment; and (2) the California Court of Appeal's decision not to remand for re-sentencing violated Petitioner's due process rights and was prejudicial. On August 27, 2009, the California Court of Appeal denied the state habeas petition and stated the following:

The petition for writ of habeas corpus is denied given that petitioner seeks to add claims that were not raised in his earlier petition for writ of habeas corpus, and, assuming arguendo, such claims are not otherwise barred (see In re Clark (1993) 5 Cal.4th 750, 767-768), petitioner must first assert these claims in the superior court. (In re Steele (2004) 32 Cal.4th 682, 691-692; In re Hillery (1962) 202 Cal.App.2d 293, 294.)

(Resp't's Lodged Doc. 16.)

In August 2009, Petitioner filed a state habeas petition in the California Supreme Court, Case No. S17956. That state habeas petition raised the two issues that Petitioner raised in his August 2009 state habeas petition to the California Court of Appeal. The California Supreme Court denied the state habeas petition on November 19, 2009 by stating that, "The petition for writ of habeas corpus is denied. (See In re Clark (1993) 5 Cal.4th 750.)" (Pet'r's Am. Pet. at Appendix IV.)

Petitioner also filed a state habeas petition in the California Superior Court, County of Sacramento in September 2009. In that state habeas petition, Petitioner raised the same two claims that he raised in his August 2009 state habeas petitions to the California Court of Appeal and the California Supreme Court, specifically: (1) Petitioner's sentence of twenty-five years to life imprisonment constitutes cruel and unusual punishment; and (2) the California Court of Appeal's decision not to remand for re-sentencing violated Petitioner's due process rights and was prejudicial. The Sacramento County Superior Court denied these two claims in a written decision on November 9, 2009.

Petitioner filed a federal habeas petition on March 3, 2009. In the area for describing his claims, Petitioner stated "see motion (petition) attach." However, no additional documents were attached to this petition. Petitioner also requested a stay of the proceedings. On August 26, 2009, then Magistrate Judge Mueller denied the motion to stay without prejudice and dismissed the federal habeas petition. Petitioner was given thirty days to file an amended habeas petition.

Subsequently, Petitioner filed several amended habeas petitions, the last filed on December 17, 2009.*fn2 On September 13, 2010, Respondent answered the petition. On January 10, 2011, Petitioner filed a motion for leave to file an oversized traverse along with his traverse. On January 25, 2011, Chief Judge Ishii reassigned this matter to the undersigned.

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). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).

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, 538 U.S. at 71 (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)).

V. ANALYSIS OF PETITIONER'S CLAIMS A. Claim I

In Claim I, Petitioner argues that there was insufficient evidence to support the guilty findings with respect to the murder and attempted murder convictions. In addition to arguing that there was insufficient evidence to support these convictions generally, Petitioner also argues that: (1) there was insufficient evidence to convict on a direct theory of liability; and (2) there was insufficient evidence to convict as an aider and abettor. Petitioner raised this Claim on direct appeal to the California Court of Appeal. (See Resp't's Lodged Doc. 1.) However, Petitioner never raised this insufficiency of the evidence Claim to the California Supreme Court in his petition for review on direct appeal. (See Resp't's Lodged Doc. Ex. 7.) Instead, these arguments were next raised by Petitioner in his state habeas petition to the Sacramento County Superior Court. That Court stated the following in analyzing this Claim:

Petitioner first claims that the evidence was insufficient to convict him of murder and attempted murder based on a direct theory of liability or as an aider and abettor.

The claim was raised and rejected on appeal, where the Third District Court of Appeal found the evidence sufficient to show that petitioner participated in the drive-by shooting and that he personally discharged a firearm in the commission of the offenses. A claim is procedurally barred on state habeas corpus when the claim was raised and rejected on appeal (In re Waltreus (1965) 62 Cal.2d 218, reaffirmed in In re Harris (1993) 5 Cal.4th 813, 829). The only exceptions to this procedural bar are: (1) if the claim is based on constitutional error that is both clear and fundamental, and that strikes at the heart of the trial process; (2) if the claim is now couched in ineffective assistance of counsel terms; (3) if the court lacked fundamental jurisdiction over the petitioner of the subject matter; (4) if the court acted in excess of its jurisdiction and the issue is strictly a legal one not requiring a redetermination of the facts underlying the claim; (5) there has been a change in the law affecting the petitioner (Harris, supra, 5 Cal.4th 813, 834, 834 fn. 8, 836, 840-841, 841); or (6) if the claim is that the sentence is unauthorized, as an unauthorized sentence may be corrected at any time (People v. Welch (1993) 5 Cal.4th 228; Harris, supra, 5 Cal.4th 813, 842; People v. Serrato (1973) 9 Cal.3d 753, 763, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583 fn. 1). Petitioner does not show that this claim qualifies for any of these exceptions. As such, the claim is barred.

(Resp't's Lodged Doc. 11 at p. 1-2.)

The California Court of Appeal and the California Supreme Court both summarily denied the state habeas petitions that raised this Claim. The Court "looks through" those silent denials to the last reasoned decision which was from the Sacramento County Superior Court. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).

The Sacramento County Superior Court denied this Claim pursuant to In re Waltreus, 62 Cal.2d 218, 42 Cal. Rptr. 9, 397 P.2d 1001 (1965). California's Waltreus rule provides that "'any issue that was actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corpus.'" See Forrest v. Vasquez, 75 F.3d 562, 563 (quoting In re Harris, 5 Cal. 4th 813, 829, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993)). A Waltreus citation does not bar federal review of a habeas claim. See Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996). In Ylst, 501 U.S. at 805, the Supreme Court concluded that a Waltreus citation is neither a ruling on the merits nor a denial on procedural grounds and therefore has no bearing on a California prisoner's ability to raise a claim in federal court. See also Forrest, 75 F.3d at 564. A federal court instead must "look through" a denial based on Waltreus to the last explained state court decision. See id.

In Forrest, the court looked through a Waltreus citation to the last state court decision which was an order by the California Supreme Court denying the petition for review on direct appeal because the petition was untimely under Rule 28(b) of the California Rules of Court. However, in this case, the last clear explained decision on this Claim is from the California Court of Appeal's decision on direct appeal which denied this Claim on the merits. Therefore, that decision will be analyzed to determine whether it was an objectively unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See Maravilla v. Rimmer, Civ. No. 04-684, 2009 WL 1689599, at *6 (C.D. Cal. June 12, 2009) (noting that where Petitioner failed to raise claim on direct appeal to the California Supreme Court, and California Supreme Court denied claim on state habeas relying on Waltreus, court looks through the California Supreme Court's denial based on Waltreus and analyzes whether the California Court of Appeal's decision on direct appeal was contrary to 28 U.S.C. § 2254(d)); Davis v. Butler, Civ. No. 03-426, 2005 WL 1490283, at *6-7 (E.D. Cal. June 15, 2005), aff'd by, 210 Fed. Appx. 584 (9th Cir. 2006).

The California Court of Appeal stated the following in analyzing this Claim on the merits:

Her contends there was "no direct or circumstantial evidence" of his participation in the drive-by shooting at 3212 Western, and subsequent death of Fong Vue. He argues that the evidence shows, at most, that he was present at the scene of the crime and failed to prevent it -- evidence not sufficient to convict him beyond a reasonable doubt of first degree murder. We disagree.

When confronted with a claim that the evidence is insufficient to support the verdict, the reviewing court examines the record to determine "'whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Further, 'the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." (People v. Catlin (2001) 26 Cal.4th 81, 139.) In reviewing the sufficiency of the evidence, the well-established test for review, "is whether there is substantial evidence to support the conclusion of the trier of facts, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Wheeler (1977) 71 Cal.App.3d 902, 906, citing People v. Reyes (1974) 12 Cal.3d 486, 497.)

Viewing the record in the light most favorable to the People, we find substantial evidence to support the jury's determination that defendant Her was one of the perpetrators of the drive-by shooting at 3212 Western.

The evidence showed that the shooting was committed by the occupants of the Camry, who stole it in the northern part of Sacramento and drove it to 3212 Western, where the shooting occurred. The perpetrators then fled to West Sacramento, where they abandoned the Camry following a high-speed police chase. The pursuing officer observed three Asian males exit the car, and forensic evidence showed that three different firearms (two handguns and a shotgun) were fired from the Camry.

Lao was undoubtedly one of the shooters, based on his identification by the surviving victim, his aquatic capture after fleeing from the Camry, the shotgun shells found in his closet, and his fingerprint found on the door of the Camry.

Her and Lao were both affiliated with the MOD street gang and Her was a validated member of YMS, a junior version of MOD. Her also attended the Super Bowl party where Lao and other MOD gang members were present. Soon after a group of them left the party, the Camry was stolen. The drive-by shooting occurred a short time later, in the same area.

Immediately after the shooting, law enforcement personnel and police helicopters surrounded the Money Store/Tower Bridge/Old Sacramento area. During the same time frame, Her called his cousin Rindy, asking to be picked up from the Money Store. Lao's voice could be heard in the background. Her's jacket and a bandana with fluids containing DNA were found in the Camry. There was strong circumstantial evidence that Her used his girlfriend Brenda Ly's phone to call Xang Thao's phone, which was in possession of the police. The caller identified himself as a MOD gang member.

When Ly picked Her up in West Sacramento around 10:30 p.m. that night, she asked him whether he had anything to do with the police cars and helicopters in the area. His reply, that he did not want to tell her because he preferred that she not know, was a statement from which the jury could infer consciousness of guilt. Circumstantial evidence established that Her made numerous calls from Ly's cell phone in the early hours of the next morning, including some to Minnesota. The day after the shooting, Her fled to Minnesota, where Ly eventually sent him money.

Based on the above evidence, a reasonable jury could find that Her was one of the three assailants who committed the drive-by shooting at 3212 Western that resulted in Fong Vue's death. Because the evidence was sufficient to find that Her was a direct perpetrator, we need not discuss his related contention that the evidence was insufficient to find him guilty as an accomplice. (Slip Op. at p. 8-10.)

The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction, if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner for writ of habeas corpus "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16. Murder is defined by California Law as "the unlawful killing of a human being . . . with malice aforethought," see Cal. Penal Code § 187(a). Murder in the first degree is defined as follows:

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed to primarily penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any action punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.

Cal. Penal Code § 189. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." People v. Superior Court, 41 Cal. 4th 1, 7, 58 Cal. Rptr. 3d 421, 157 P.3d 1017 (2007).

Petitioner argues there was no direct or circumstantial evidence of Her's participation in the shooting of Fong Vue and Yee Xiong nor evidence that he aided and abetted in their shooting. Petitioner is not entitled to federal habeas relief on this Claim. Upon reviewing the evidence in the light most favorable to the prosecution, the evidence in the record reasonably supported the convictions as aptly explained and recited by the California Court of Appeal in its decision on direct appeal. The California Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law nor did it result in a decision that was that was based on an unreasonable determination of the facts in light of the evidence presented in state court. Petitioner fails to meet his heavy burden to warrant granting federal habeas relief on this insufficiency of the evidence argument.

B. Claim II

In Claim II, Petitioner argues that there was insufficient evidence to support the finding of the firearm enhancement pursuant to Cal. Penal Code § 12022.53. With respect to the murder count, the jury specifically found as true that Petitioner intentionally and personally discharged a firearm thereby causing the death of Fong Vue within the meaning of Cal. Penal Code § 12022.53(d) and (e)(1). (See Clerk's Tr. at p. 909.) With respect to the attempted murder count, the jury specifically found that Petitioner intentionally and personally discharged a firearm during the attempted murder of Yee Xiong within the meaning of Cal. Penal Code § 12022.53(c) and (e)(1). (See Clerk's Tr. at p. 911.) Petitioner argues that the prosecution failed to prove that he had the requisite mens rea, or that the killing was unjustified. (See Pet'r's Am. Pet. at p. 16.)

This Claim followed a similar procedural history to Claim I in that it was raised on direct appeal to the California Court of Appeal which denied it on the merits but not to the California Supreme Court in Petitioner's petition for review. Petitioner then raised this Claim in his state habeas petitions. It was denied pursuant to Waltreus. (See Resp't's Lodged Doc. 11 at p. 2 ("Petitioner next claims that the evidence was insufficient to support the gun enhancements on all counts. [¶] The claim was raised and rejected on appeal, where the Third District Court of Appeal found the evidence sufficient to show that petitioner participated in the drive-by shooting and that he personally discharged a firearm in the commission of the offenses. As such, it is barred under Waltreus.").) Thus, as with Claim I, the state courts' decisions on the state habeas petitions will be looked through and the California Court of Appeal's decision on direct appeal will be analyzed under the 28 U.S.C. § 2254(d) standard.

On direct appeal, the California Court of Appeal stated the following in deciding this Claim:

For the reasons advanced in the previous argument [Petitioner's claim that there was insufficient evidence to support the murder and attempted murder convictions], Her contends the special firearm findings were devoid of substantial evidence in the record and should be stricken, since there was no evidence he personally discharged a firearm in the commission of the offense.

We reject the argument for the reasons we have just stated. Two handguns and a shotgun were abandoned in the same area of West Sacramento where the stolen Camry led Officer Estrada on a high-speed chase only a few hours earlier. Hence, the trier of fact could find that all three occupants of the car personally discharged a firearm while driving past 3212 Western.

(Slip Op. at p. 11.)

The relevant standard for a sufficiency of the evidence claim was previously outlined in supra Part V.A. As previously noted, the evidence must be construed in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319.

Petitioner is not entitled to federal habeas relief on this Claim. By way of example only, the evidence included Petitioner's DNA being found on a bandana inside the stolen blue Camry. Petitioner's jacket also was found within the stolen blue Camry that committed the drive-by shooting and three guns were present in the stolen blue Camry that perpetrated the drive-by shooting. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that Petitioner intentionally and personally discharged a firearm during the commission of the murder and attempted murder of the victims. The California Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law nor resulted in a decision that was based on an unreasonable determination of the facts as presented in the state court. Thus, Petitioner has failed to satisfy his heavy burden to warrant granting federal habeas relief on this Claim.

C. Claim III

In Claim III, Petitioner argues that there was insufficient evidence supporting the jury's finding of a gang enhancement pursuant to Cal. Penal Code § 186.22(b)(1). Within this Claim, Petitioner makes three distinct arguments; specifically: (1) the prosecution failed to prove Petitioner's membership in an ongoing association of three or more persons; (2) there was insufficient evidence concerning the primary activities of YMS/MOD; and (3) there was insufficient evidence to show that Petitioner acted with the specific intent to promote, further, or assist in any criminal conduct by gang members.

These arguments have a similar procedural histories as do Claims I and II. There was a reasoned decision on the merits by the California Court of Appeal on direct appeal. Petitioner did not raise this Claim to the California Supreme Court in his petition for review on direct appeal. Petitioner then raised this Claim in his state habeas petitions which was deemed barred by the state courts pursuant to Waltreus. (See Resp't's Lodged Doc. 11 at p. 2 ("Petitioner next claims that the evidence was insufficient to support the gang enhancements on all counts. [¶] The claim was raised and rejected on appeal, where the Third District Court of Appeal found the evidence sufficient to show the gang enhancements. As such, it is barred under Waltreus.").) Thus, for the reasons previously outlined with respect to Claims I and II, the California Court of Appeal's decision on direct appeal will be analyzed under the 28 U.S.C. § 2254(d) standard with respect to this Claim. That court stated the following in analyzing this Claim:

Her contends that the evidence was insufficient to support the jury's finding that the shooting was committed to further criminal conduct by gang members within the meaning of section 186.22. Section 186.22, subdivision (b)(1) provides an enhancement punishment for any crime that has been committed "for the benefit of, at the direction of, or in association with [a] criminal street gang," and with specific intent "to promote, further, or assist . . . criminal conduct by gang members."

There is no shortage of evidence that this crime was the direct result of hostilities between the MOD gang, to which Her belonged, and the HNS gang, with which two of the targeted victims were affiliated.

There was also evidence that Her and his MOD companions stole a car and traveled to a known HNS neighborhood, where they committed the drive-by shooting targeting HNS members. As the People's gang expert, Detective Lee explained, "reputation is everything in the gang subculture." A drive-by shooting in the territory of a rival gang sends a powerful message to the community that MOD is composed of hard-core killers and therefore the community should fear and respect them. Presented with a hypothetical based on the facts of the case, Lee opined that the shooting would "definitely benefit the MOD criminal street gang. "A drive by shooting is a classic gang case. Drive-by shootings are synonymous with gangs. . . . [¶] You know, this drive-by, these circumstances that you have given me here, it sends a clear message to all of MOD's enemies that, hey, if you mess with us, you're gonna pay the consequences." "The use of expert testimony in the area of gang sociology and psychology is well established." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 (Olguin).)

We conclude that the trier of fact could reasonably find the crime was committed for the benefit of a street gang. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1465; Olguin, supra, 31 Cal.App.4th at pp. 1382-1383.)

While not contesting evidence that he was a validated member of YMS, Her claims that the gang enhancement finding was unsupported because the prosecution failed to prove that YMS was a criminal street gang within the meaning of the statute, i.e., an "ongoing organization, association, or group of three or more persons" sharing a common name or common identifying sign or symbol, that has as one of its "primary activities" the commission of specified criminal offenses; and engages through its members in a "pattern of criminal gang activity." (§ 186.22, subd. (f); see People v. Gardeley (1996) 14 Cal.4th 605, 610 (Gardeley).)

Her's argument reads the enhancement statute too narrowly. The enhancement is triggered when the crime is "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1), italics added). YMS was a junior "wannabe" gang, populated by younger relatives and friends of the MOD's. Detective Lee described a long record of homicides and other violent crimes engaged in by the MOD gang. Since YMS was a junior street gang operating under the MOD umbrella and Her called himself a MOD, the jury would find that the crime was committed for the benefit of and to promote the criminal activities of the MOD gang, regardless of whether Her himself was a validated member.

Her's argument that there was insufficient evidence to show that crimes of violence and theft were MOD's "primary activities" borders on frivolous. Detective Lee testified extensively as to numerous street crimes engaged in by MOD since extensively as to numerous street crimes engaged in by MOD since the 1990's, including beatings, stabbings, drive-by shootings and car-thefts. [FN 3] The jury was also entitled to consider the present drive-by shooting as evidence of the group's primary activities. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Incontrovertibly, there was substantial evidence that one of MOD's primary activities was the commission of gang crimes enumerated within the statute. (§ 186.22, subd. (e); see Sengpadychith, supra, at pp. 323-324; Gardeley, supra, 14 Cal.4th at p. 620.) [FN 3] Her's claim that Detective Lee's testimony was based on nothing more than "nonspecific hearsay" is without merit. First, the point was forfeited because Her's trial attorney never lodged a hearsay objective in the trial court. (Evid. Code, § 353.) Moreover, the fact that a gang expert bases his opinion on hearsay does not render per se such testimony objectionable. (Olguin, supra, 31 Cal.App.4th at p. 1385.)

Finally, we reject the argument that the prosecution failed to show that Her harbored a specific intent to promote criminal activity by gang members. As stated in People v. Morales (2003) 112 Cal.App.4th 1176, "specific intent to benefit the gang is not required. What is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (Id. at p. 1198, italics added.) The evidence we have recited, that Her knowingly aided members of MOD in committing the drive-by shooting, was sufficient of itself to satisfy the specific intent requirement. (Ibid.) (Slip Op. at p. 11-14.)

The standard for a sufficiency of the evidence claim has previously been articulated. See supra Part V.A. The substantive elements of the gang enhancement as defined under state law must be analyzed in determining whether Petitioner should be granted habeas relief on this insufficiency of the evidence claim. See Jackson, 443 U.S. at 324 n.16.

California Penal Code § 186.22(b)(1) states that "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted . . . ." The statute then outlines the relevant punishments depending upon the nature of the felony. See id.

Petitioner's first two arguments within this Claim argue that the prosecutor failed to show sufficient evidence that YMS or even MOD satisfies the definition of a criminal street gang under the statute. California Penal Code § 186.22(f) defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having one of its primary activities the commission of one or more of the criminal acts enumerated [in subdivsiion (e) of the statute, the 'predicate offenses'] . . . and whose members individually or collectively engage in or have engaged in a pattern of criminal activity." See also People v. Gardeley, 14 Cal.4th 605');">14 Cal. 4th 605, 617, 59 Cal. Rptr. 2d 356, 927 P.2d 713 (1996) ("[T]he prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period.").

Petitioner first argues that the prosecution failed to show that YMS was an ongoing association of three or more persons at the time of the shooting. Detective Lee (the gang expert) testified that Petitioner was a gang member. (See id. at 974.) Lee testified that Petitioner was a validated member of YMS. (See Reporter's Tr. at p. 972.) He stated that YMS is a subgroup of MOD. (See id. at 949.) The following colloquy took place between the prosecutor and Detective Lee during the trial:

Q: You believe Kinson Her, as you testified, it's your opinion that he is a gang member?

A: Oh, yes.

Q: What do you base that opinion on?

A: Well, obviously he was validated from -- by Officer Gin back on December 13th of 2000 [as YMS]. [¶] During his previous crimes, he had been arrested with other known TLR, YMS, MOD gang members. [¶] He obviously has an association with individuals such as Xang Tao, Laksu Chau, Peter Lor, and, of course, his brother Xiong Her.

(Reporter's Tr. at p. 974.) Detective Lee further stated that "Steve Thang, Ceng Vang, Xang Tao, Kinson Her, Kong Vang, and Woodrow Tao" were all members of MOD. (See id. at p. 976.) He also stated that he believed that co-defendant Lao was a MOD member. (See id. at p. 977.) Thus, there were more than three members of the criminal street gang that Petitioner was affiliated with (i.e. YMS/MOD). (See id. at p. 969-72 (detailing several individuals that are members of YMS/MOD).) As previously stated, the evidence in a sufficiency of the evidence claim must be viewed in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319. Petitioner failed to establish that there was insufficient evidence in the record that there was an ongoing association of three or more persons that Petitioner was associated with at the time of the shooting.

Next, Petitioner argues that there was insufficient evidence that one of the primary activities of YMS/MOD was one of the criminal acts enunciated in the gang enhancement statute. In support of this argument, Petitioner relies on People v. Perez, 118 Cal. App. 4th 151, 12 Cal. Rptr. 3d 821 (2004). In Perez, the California Court of Appeal determined that there was insufficient evidence to support the gang enhancement as the prosecution failed to show that the gang's primary activities were the commission of enumerated crimes. In that case, the evidence produced at trial was deemed insufficient because, as stated by the California Court of Appeal:

Even if we assume that the CLB gang was responsible for the shootings of Asians on February 16 and 18, as well as the shooting of Siuva C., such evidence of the retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.

Id. at 160, 12 Cal. Rptr. 3d 821 (emphasis in original and internal quotation marks and citation omitted). Unlike Perez, there was substantial testimony from the gang expert regarding the fact that one of the primary activities of MOD was engaging in the criminal acts enunciated in the criminal gang enhancement statute. The gang expert testified that MOD is involved in homicides, drive-by shootings and many violent crimes. (See Reporter's Tr. at p. 951.) More specifically, Detective Lee testified to several crimes related to MOD criminal activities in the 1990's through 2001. (See id. at 953-57.) When viewing this evidence in the light most favorable to the prosecution, it was sufficient to find that one of the primary activities of YMS/MOD was committing crimes enumerated in the gang enhancement statute.

Finally, Petitioner argues that there was insufficient evidence to show that Petitioner acted with the specific intent to promote, further, or assist in any criminal conduct by gang members. Up until recently, there was a divergence of opinion between the California state courts and the federal courts in determining what is the proper inquiry in deciding this type of claim. The Ninth Circuit set forth the a standard for federal habeas courts to use in analyzing such a sufficiency of the evidence claim in Garcia v. Carey, 395 F.1099 (9th Cir. 2005) and Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009). Under Garcia/Briceno, a prosecutor had to satisfy two prongs for there to be sufficient evidence to warrant a finding of a gang enhancement pursuant to § 186.22(b)(1). First, the evidence must have showed that the defendant committed the felony "for the benefit of, at the discretion of, or in association with [a] criminal street gang." Briceno, 555 F.3d at 1078 (quoting Cal. Penal Code § 186.22(b)(1)). Second, the evidence must have showed that the defendant committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members." Id. (quoting Cal. Penal Code § 186.22(b)(1)). As noted by the Ninth Circuit, it was important that these two requirements were kept separate and not merged. Furthermore, the second prong inquiry was not satisfied by evidence of mere membership in a criminal street gang alone. See id. (citing Garcia, 395 F.3d at 1102-03 & n.5).

In Garcia, the court found that:

There is nothing in this record, however, that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the E.M.F. The evidence indicates that Garcia was a gang member and that he robbed Bojorquez in an area known to be in the heart of the gang's "turf." Detective Hernandez, the gang expert, testified that the gang was "turf oriented," and he described three robberies committed by E.M.F. members in El Monte during the few months prior to Garcia's offense. But there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the "turf-orientated" nature of the gang with the commission of robberies generally, or more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The expert's testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez.

Id. at 1103. Thus, the Ninth Circuit found that there was a lack of evidentiary support for the specific intent to further other gang criminal activity. See id. at 1004.

In Briceno, the Ninth Circuit reaffirmed Garcia despite the fact that the California Appellate Court had held that Garcia misinterpreted California law. See Lopez v. Walker, Civ. No. 08-0598, 2010 WL 1558953, at *12 n. 49 (E.D. Cal. April 19, 2010) ("[E]very California Court of Appeal decision since Briceno has agreed that Briceno and Garcia misinterpreted California law with respect to whether the crime must be committed in furtherance of some other criminal activity, and declined to follow them.").

Conversely, California state courts had interpreted § 186.22(b)(1) differently than the Ninth Circuit. In People v. Vazquez, 178 Cal. App. 4th 347, 353-54, 100 Cal. Rptr. 3d 351 (2009), the California Court of Appeal explained the divergent opinions between the Ninth Circuit and the California state courts on this issue:

In Briceno, supra, and Garcia, supra, the Ninth Circuit held that the specific intent requirement of section 186.22, subdivision (b) is not satisfied by evidence of a defendant's gang membership alone, and instead requires some evidence, aside from a gang expert's "generic testimony," that supports an inference that the defendant committed the crime "'with the specific intent to facilitate other criminal conduct by the [gang].'" (Briceno, supra, 555 F.3d at p. 1079, quoting Garcia, supra, 395 F.3d at p. 1103.) Among other things, according to the Ninth Circuit, the statute requires evidence describing "'what criminal activity of the gang was . . . intended to be furthered'" by the crime. (Id., quoting Garcia, supra, at p. 1103.)

While our Supreme Court has not yet reached this issue, numerous California courts of appeal have rejected the Ninth Circuit's reasoning. As our colleagues noted in People v. Romero (2006) 140 Cal.App.4th 15, 19, 43 Cal.Rptr.3d 862: "By its plain language, the statute requires a showing of specific intent to promote, further, or assist in 'any other criminal conduct (§ 186.22, subd. (b)(1), italics added.)" Thus, if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. (Id. at pp. 19-20, 43 Cal.Rptr.3d 862.)

In May 2010, the Ninth Circuit requested that the California Supreme Court answer several questions in Emery v. Clark, 604 F.3d 1102 (9th Cir. 2010) in light of the conflicting interpretations of the California gang enhancement statute in the federal and state courts. Among the questions that the Ninth Circuit requested that the California Supreme Court answer was whether "California's street gang enhancement statute, in particular the element of 'specific intent to promote, further, or assist in any criminal conduct by gang members' in California Penal Code section 186.22(b)(1), require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction?" Id. at 1103 (footnote and citations omitted).

On June 23, 2010, the California Supreme Court granted the request for certification but deferred further action in the Emery matter pending consideration of related issues in another case, specifically People v. Albillar, No. S163905. On December 20, 2010, the California Supreme Court decided People v. Albillar, 51 Cal. 4th 47, 119 Cal.Rptr. 3d 415, 244 P.3d 1062 (2010). In Albillar, the California Supreme Court noted the conflict between the California state and federal courts with respect to the interpretation of section 186.22.(b)(1). See id. at 66. The court expressly rejected the Ninth Circuit's interpretation of the statute by stating that: we reject the Ninth Circuit's attempt to write additional requirements into the statute. It provides an enhanced penalty where the defendant specifically intends to 'promote, further, or assist in any criminal conduct by gang members.' (§ 186.22, subd.

(b)(1).) There is no statutory requirement that this 'criminal conduct by gang members' be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.

Id. Ultimately, the California Supreme Court held that:

We . . . find that the scienter requirement in section 186.22(b)(1)-i.e., "the specific intent to promote, further or assist in any criminal conduct by gang members" - is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be "apart from" the criminal conduct underlying the offense of conviction sought to be enhanced.

A similar analysis disposes of the related argument, advanced by all three defendants, that section 186.22(b)(1) requires the specific intent to promote, further, or assist a gang-related crime. The enhancement already requires proof that the defendant commit a gang-related crime in the first prong-i.e., that the defendant be convicted of a felony for the benefit of, at the direction of, or in association with a criminal street gang . . . There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.

Id. at 66-67. The court concluded by stating that, "[i]n sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further or assist criminal conduct by those gang members." Id. at 68. The court did note however that not every crime that is committed by gang members is related to a gang. See id. at 60.

A federal court interpreting state law is bound by the decisions of the highest state court. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1391 (9th Cir. 1994). As the California Supreme Court has now spoken on what constitutes sufficient evidence under section 186.22(b)(1), the standard set forth in Albillar applies in this case rather than the standard set forth by the Ninth Circuit in Garcia and Briceno. See Bonilla v. Adams, No. 07-55626, 2011 WL 1058181, at *1 (9th Cir. Mar. 24, 2011).

In this case, the gang expert testified that: reputation is everything in the gang subculture. You want to -- you want to have that reputation. You want to build yourself up as being hard core. If you can do a drive by shooting and get away with it, then that's another notch on your belt, but that type of reputation to them translates into that respect and that's ultimately what they are trying to achieve, is that respect, that notoriety within the gang . . . . when you commit a drive-by shooting or 187, that earns that street credibility within the gang. It is sending a clear message that MOD, we're hard core killers. We have this -- obviously this infamous history already and we are continuing this legacy. [¶] And ultimately that's what they want. That's what they want to be known as. They want their rivals to fear them. They want people in the community to fear them, and to them, that fear equals respect.

(Reporter's Tr. at p. 960-61.) The prosecutor then asked the gang expert the following hypothetical:

Q: I want you to assume for a moment that there are at least three individuals in a car that associate themselves with MOD, that the car is stolen recently, that they drive to Western Avenue and go to a house, with a boat, that they are in possession of a pistol grip shotgun, it's a pump action, that they are in possession of a loaded .32-caliber handgun and a .380 semiautomatic handgun, that they approach the house with the boat, that they fire at least two rounds with the shotgun, several rounds with the .32 and at least one round with the .380. [¶] Do you have an opinion as to whether that particular crime would be for the benefit of the MOD or benefit of the criminal street gang?

A: Definitely. A drive-by shooting is a classic gang case. Drive-by shootings are synonymous with gangs. I can't think of one drive-by shooting that I have investigated that is not somehow gang-related. [¶] You know, this drive-by shooting, these circumstances which you have given me here, it sends a clear message to all of MOD's enemies that, hey, if you mess with us, you're gonna pay the consequences. (Id. at p. 962.) The evidence indicated that Petitioner committed the drive-by shooting with known members of a gang, MOD. As Albillar made clear, where substantial evidence established that the defendant intended to and did commit a charged felony with known gang members, the jury may fairly infer that defendant had the specific intent to promote, further or assist criminal conduct by those gang members. See Albillar, 51 Cal. 4th at 66, 119 Cal. Rptr. 3d 415, 244 P.3d 1062 ("There is no further requirement that the defendant act with the specific into to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.") In this case, there was evidence that Petitioner along with Lao intended to commit the drive-by shooting together as the evidence indicated that they were in the stolen Camry together that committed the drive-by shooting. They were each members of the same criminal street gang, namely MOD. The gang expert testified during trial that he believed that Lao was a member of MOD. (See Reporter's Tr. at p. 977.) The gang expert further testified that a drive-by shooting tells the gang's rivals not to mess with that gang. (See id. at p. 962.) Viewing the evidence in the record in the light most favorable to the prosecution, Petitioner's assertions that there was insufficient evidence to support the gang enhancements do not warrant granting federal habeas relief on Claim III.

D. Claim IV

Petitioner raises several ineffective assistance of counsel arguments within Claim IV; specifically Petitioner asserted in his amended federal habeas petition that trial counsel was ineffective by: (1) failing to investigate a witness named Vang; (2) failing to object to a hypothetical question asked of the gang expert which mischaracterized the evidence; (3) failing to object when the gang expert characterized Petitioner as a "hard core killer"; (4) erring in giving an ineffective example during closing argument; (5) failing to present an expert witness at trial; and (6) failing to request an inquiry into Detective Stigerts' purported prohibited communication with the jury.

i. Applicable Law

The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id.

Second, a petitioner must affirmatively prove prejudice. See id. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 597).

ii. Failing to investigate witness Vang

Petitioner argued in his amended habeas petition that trial counsel was ineffective for failing to investigate a witness named "Vang." However, Petitioner withdrew this argument as stated in his traverse.

iii. Failing to object to the prosecution witness' inflammatory characterization Next, Petitioner argues that trial counsel was ineffective in failing to object to a hypothetical question posed by the prosecutor to the gang expert. The hypothetical question that was asked of the expert was the following:

Q: I want you to assume for a moment that there are at least three individuals in a car that associate themselves with MOD, that the car is stolen recently, that they drive to Western Avenue and go to a house, with a boat, that they are in possession of a pistol grip shotgun, it's a pump action, that they are in possession of a loaded .32-caliber handgun and a .380 semiautomatic handgun, that they approach the house with the boat, that they fire at least two rounds withe the shotgun, several rounds with the .32 and at least one round with the .380. [¶] Do you have an opinion as to whether that particular crime would be for the benefit of the MOD or benefit of the criminal street gang? (Reporter's Tr. at p. 962.) Petitioner argues that the proposed hypothetical should have been objected to because it misconstrued the evidence in three respects: (1) the description of the three vehicle occupants as MOD members was not proven; (2) there was no sawed-off shotgun in this case; and (3) the hypothetical assumes that the occupants of the vehicle fired first. (See Pet'r's Am. Pet. at p. 24-25.)

The last reasoned decision on these arguments came from the Sacramento County Superior Court which stated the following in denying this ineffective assistance of counsel claim:

Petitioner next claims that defense counsel was ineffective in failing to object to gang expert Lee's opinion that the drive-by shooting was committed for the benefit of the gang, because the hypothetical question was not rooted from the facts shown by the evidence. Petitioner notes that defense trial counsel's failure resulted in a waiver of the issue on appeal, as determined by the Third District in the appeal.

Petitioner fails to note, however, that petitioner's girlfriend Ly testified at trial that petitioner represented himself to be a member of the MOD gang, that the expert testified that petitioner had been a validated member of a subset of that gang since 2000, and that other evidence showed that the victims were members of a rival gang and that petitioner and his accomplices had driven into territory well know to be that of the rival gang and committed the drive-by shooting. These were sufficient facts upon which to base the opinion that the shooting was for the benefit of the gang. As such, any objection to the opinion would have been denied, had one been made, and defense trial counsel was not ineffective in failing to make the objection (see Strickland v. Washington (1984) 466 U.S. 668).

(Resp't's Lodged Doc. 11 at p. 5.)

An attorney's failure to make a meritless objection does not constitute ineffective assistance of counsel. See Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009) (concluding counsel's failure to object to testimony on hearsay grounds not ineffective where objection would have been properly overruled); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("[T]he failure to take a futile action can never be deficient performance . . . ."). There was evidence in the record that the occupants of the stolen Camry which performed the drive-by shooting were members of MOD. The gang expert testified that both Petitioner and Lao were YMS/MOD members and evidence in the record linked both of them as occupants of the vehicle. With respect to Petitioner's second argument, defense counsel did object to the prosecutor's use of the term "sawed off shotgun" and the trial judge suggested that the prosecutor rephrase it as a "shortened shotgun." (See Reporter's Tr. at p. 962.) Thus, Petitioner's claim that trial counsel was ineffective for failing to object is contrary to the record. Finally, evidence in the record included testimony regarding who fired the first shots. (See, e.g., Reporter's Tr. at 174, 178-79). Therefore, Petitioner fails to show that counsel's performance was objectively unreasonable in failing to object to this proposed hypothetical question by the prosecutor to the gang expert.

Petitioner is not entitled to federal habeas relief on this argument.

iv. Failure to object to gang expert's characterization of Petitioner as a "hard core killer" Next, Petitioner argues that trial counsel was ineffective in failing to object when the gang expert referred to Petitioner as a "hard core killer." This argument was raised by Petitioner in his state habeas petitions. However, no court provided a reasoned decision of this Claim. Therefore, the California Supreme Court's summary denial of Petitioner's state habeas petition is applicable. As that was a summary denial, the record will be independently reviewed to analyze whether the California Supreme Court's denial of this argument was an objectively unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts in light of the record. See Musladin, 555 F.3d at 835; see also Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (stating that a summary denial constitutes a decision on the merits).

The following colloquy took place between the prosecutor and the gang expert during trial:

Q: Now let's talk about Kinson Her. [¶] With respect to Kinson Her, do you believe him -- where do you believe he falls in terms of his level of participation and activity as a gang member?

A: I put him right up there at the top --

Q: Explain why.

A: -- of being a hard core killer. [¶] He had progressed from his previous times he was arrested, from stealing a vehicle to illegal gun possession in a vehicle, now to a homicide. (Reporter's Tr. at p. 973.) However, on cross-examination, the gang expert qualified his statement in the following colloquy with Petitioner's trial counsel:

Q: [Y]ou were asked questions about levels of participation, people being at certain levels, other levels, and your characterization of him being, quote, at the top, according to your words --A: Okay.

Q: -- is based on your assumption that he is guilty of the crimes he is charged with in this case; isn't that true?

A: Well, I believe -- yes, that is true, and if you're going to participate in a drive-by shooting which ultimately leads to a homicide, he would be at the -- I would consider a hard core gang member.

Q: Okay. And that's based on your -- again, your assumption that he is guilty of the crimes in this case?

A: Yes.

Q: So, in other words, you're utilizing this case as a basis for your opinion about his level of participation in a particular gang?

A: Well, if we didn't have this case, I wouldn't be here right now. So. . .

Q: If we didn't have this case, you wouldn't put him as a top level MOD participant, would you?

A: That's correct

(Reporter's Tr. at 993-94.)

Petitioner failed to show to a reasonable probability that the outcome of the proceeding would have been different had trial counsel made this objection. The evidence giving rise to Petitioner's conviction and enhancements was strong. To reiterate, and by way of example only, it included Petitioner's DNA on the bandana found within the stolen Camry which committed the drive-by shooting. Another MOD gang member was identified in the stolen Camry which committed the crime. Evidence produced at trial indicated that drive-by shootings was one of the primary activities of MOD and that HNS was a rival gang to MOD and the shooting occurred in or near HNS territory. The failure of Petitioner's trial counsel to object to the gang expert's characterization as a "hard core killer" did not prejudice Petitioner under the requisite Strickland standard.

v. Trial counsel's errors in closing argument

Petitioner next argued that trial counsel was ineffective during closing argument when he misspoke. However, Petitioner withdrew this argument as stated in his traverse.

vi. Failure to present an expert witness at trial Petitioner next argues that trial counsel was ineffective for failing to present an expert witness at trial. More specifically, Petitioner states that his trial counsel told him that there was an expert witness willing to testify on his behalf that the people at 3212 Western Avenue fired first. (See Pet'r's Am. Pet. at p. 28.) Petitioner raised this issue in his state habeas petitions. As both the California Supreme Court and the California Court of Appeal issued summary denials, those decisions will be "looked through" to the last reasoned decision which was from Sacramento County Superior Court. That court stated the following in analyzing this claim:

Petitioner next claims that defense trial counsel was ineffective in failing to present an expert witness to testify on his behalf. [¶] Petitioner fails to attach reasonably available documentary evidence such as an affidavit from an expert setting forth what testimony the expert would have given at trial that would have been reasonably likely to have made a difference in the outcome of the trial. As such, the claim fails under Swain and Harris.

(Resp't's Lodged Doc. 11 at p. 5.) As outlined above, the state courts denied this argument due to Petitioner's failure to attach relevant documentary evidence in support.

In his answer, Respondent argues that this claim is unexhausted. (See Resp't's Answer at p. 26.) A state prisoner must exhaust state court remedies before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b); Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). To exhaust state remedies, the prisoner must "fairly present" both operative facts and federal legal theory supporting his federal claim to the state's highest court, "thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004).

The Ninth Circuit has held that where a state court holds that a petitioner has not pled facts with sufficient particularity, that it is equivalent to the grant of a demurrer. See Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir. 2006), modified on other grounds, 447 F.3d 1165 (9th Cir. 2006). "That deficiency, when it exists, can be cured in a renewed petition" and constitutes a denial of the petition on procedural grounds. See Kim v. Villalbos, 799 F.2d 1317, 1319 (9th Cir. 1986). However, a citation to Swain does not per se indicate that the a claim is unexhausted. See id. at 1319-20. Rather, the federal court is required to determine whether petitioner "fairly presented" his claim to the California Supreme Court. See id.

Under Kim, the state habeas petition must be independently examined to determine whether this argument was capable of being alleged with greater particularity and is therefore unexhausted. See id. at 1320. As previously stated, Petitioner must show two things to be entitled to habeas relief for ineffective assistance of counsel. First, he must show that trial counsel's performance feel below an objective standard of reasonableness. See Strickland, 466 U.S 687-88. Second, he must show that he suffered prejudice, in that there is a reasonable probability that but for counsel's unprofessional errors, Petitioner would have prevailed. See id. at 694. Petitioner was required to allege specific facts that, if proven, would establish that trial counsel's conduct fell below that of a reasonable attorney and that the outcome of the proceeding would have been different. In his state habeas petition, Petitioner provides only generalities regarding the alleged expert witness. He provides no documentary evidence indicating who this expert was nor does he provide any information in the form of an affidavit or similar document indicating what this unnamed expert would have stated if he testified at trial. The state court's denial of this argument for failing to state the claim with sufficient particularity was appropriate under these circumstances. Therefore, the argument is deemed unexhausted.

Nevertheless, even though the argument is deemed unexhausted, an unexhausted claim can still be denied on the merits where the claim is deemed to be not "colorable." See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Under these circumstances it is easier to analyze this argument under the Strickland prejudice prong. To establish prejudice caused by the failure to call a witness, Petitioner must show that the witness was likely to have been available to testify, that the witness would have given the proffered testimony and that the witness would have created a reasonable probability that the jury would have reached a verdict more favorable to Petitioner. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (speculating as to what a proposed witness would say is not enough to establish prejudice); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (no ineffective assistance because of counsel's failure to call a witness where, among other things, there was no evidence in the record that the witness would testify). Petitioner fails to present any type of documentation, such as an affidavit that this unnamed expert would have been available to testify. Furthermore, Petitioner presents no evidence indicating that the unnamed expert would have given the proffered testimony, namely that the people at Western Avenue fired first. Therefore, Petitioner failed to present a colorable ineffective assistance of counsel claim with respect to this argument.

vii. Failure to request inquiry into Detective Stigerts communication with the jury Next, Petitioner argues that trial counsel failed to inquire into possible prohibited communications that Detective Stigerts, a prosecution witness, had with the jury. Petitioner argues that counsel's conduct fell below an objective standard of reasonableness and that the result of his proceeding would have been more favorable had trial counsel made this inquiry. Petitioner raised this claim in his state habeas petitions. The last reasoned decision on this claim was from the Sacramento County Superior Court which denied the claim due to Petitioner's failure to attach the reporters transcript and failure to set forth the claim with sufficient particularity The Superior Court relied on Swain and Harris in denying this claim.

Even though the state court's denial of this claim for Petitioner's failure to plead with sufficient particularity may deem this claim unexhausted under these circumstances, the unexhausted argument can still be denied on the merits if it is deemed not "colorable." See Cassett, 406 F.3d at 624.

In the middle of the trial, Defendant Lao's counsel (Ms. Rogers) stated to the trial court the following:

Your Honor, at this time I would just like the record to reflect that earlier in the morning the court had to admonish Detective Stigerts, who has been present as the DA's investigative officer, because she had approached the jury and made some comments to the jury. [¶] And, also, there was some conversation about -- between the prosecutor and Detective Stigerts about pulling pictures, which the court also admonished the detective about. (Reporter's Tr. at p. 510.) The trial judge responded that:

All right. I will indicate for the record that one of the jurors spilled a large cup of coffee. And we had that wiped up, and I think the detective said something to the juror about the coffee. I admonished her that -- just to not have any contact with the jurors even though it was unrelated to the case.

I think it was just a mistake on her part. I do not find that she in any way intended to ingratiate herself with the jurors or did anything that would amount to a mistrial. She was admonished to not have any contact. Again, it was an incidental comment about a spill of coffee.

And I did just caution the DA and the detective to be careful when they're conferring just because we're in a crowded courtroom and to make sure that they either communicate by notes or that she whisper directly in his ear so nothing could possibly be overheard. (Id. at 510-11.)

Here, the trial court was put on notice (by Lao's counsel) about the purported communication between Detective Stigerts and the jury. The mere fact that Petitioner's counsel did not put this on the record did not fall below an objective standard of reasonableness in that the issue was presented to the trial court by co-defendant's counsel. Therefore, Petitioner cannot meet the first prong of the Strickland test with respect to this argument as the issue was in fact raised in the trial court.

Petitioner also fails to satisfy the second prong of the Strickland test; namely that but for counsel's purported ineffectiveness, the result of the proceeding would have been different. Unless it is de minimus, an unauthorized communication between a juror and a witness or interested party is presumptively prejudicial. See Caliendo v. Warden Cal. Men's Colony, 365 F.3d 691, 696 (9th Cir. 2004). "A communication is possibly prejudicial, not de minimus, if it raises a risk of influencing the verdict." Id. at 697. "[I]f an unauthorized communication with a juror is de minimus, the defendant must show that the communication could have influenced the verdict before the burden of proof shifts to the prosecution." Id. at 696. The defendant must offer sufficient evidence to trigger the presumption of prejudice. See id. at 696. Factors relevant to this inquiry include "the length and nature of the contact, the identity and role at trial of the parties involved, evidence of actual impact on the juror, and the possibility of eliminating prejudice through a limiting instruction." Id. at 697-98.

The state court made a factual finding that the communication between Stigerts and the jury concerned the spillage of a cup of coffee. Petitioner fails to rebut this factual finding by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). Detective Stigerts' reference to the jury regarding the spillage of coffee was de minimus and innocuous in nature and content. Petitioner failed to show that the communication was anything beyond de minimus such that the communication is not deemed presumptively prejudicial. Petitioner is not entitled to federal habeas relief on this ineffective assistance of counsel argument as he failed to satisfy either prong of the Strickland test. Thus, Petitioner failed to show that this argument is "colorable" to warrant granting federal habeas relief.

E. Claim V

In Claim V, Petitioner argued that the trial court erred in not construing letters from Petitioner as motions regarding the personal conflicts Petitioner was having with trial counsel. However, Petitioner withdrew this Claim as stated in his traverse.

F. Claim VI

In Claim VI, Petitioner argued that the trial court erred in failing to provide Petitioner with an interpreter during trial. However, Petitioner withdrew this Claim as stated in his traverse.

G. Claim VII

In Claim VII, Petitioner argues that the trial court erred in denying Petitioner's motion "to exclude any opinion of the bandanna." (Pet'r's Am. Pet. at p. 30-31.) He asserts that the trial court erred because no witness saw any occupant of the vehicle wearing a blue bandana to cover one's head. (See id. at p. 31.) Before trial, Petitioner's trial counsel made a motion in limine regarding certain matters concerning any possible testimony concerning the bandana that was found in the stolen Toyota Camry. The following colloquy took place between counsel and the court on this motion before trial:

MR. IRISH: I'd also indicated as a motion in limine off the record, and would make, that there's -- in the discovery there is indications of a bandanna being found in the rear of the vehicle that was detained by law enforcement on the subsequent -- subsequent to the shooting that's the subject of this incident, and there was reference in one of the officer's reports that the bandanna was tied in a fashion consistent with wearing it to cover one's face. [¶] And I would move to exclude any opinion evidence of that nature, in that I think the jury can make that determination itself by looking at the bandanna, and that, subject, really is argument by the counsel, whether, in fact, it is or is not tied in that manner that's consistent with covering somebody's face.

THE COURT: Mr. McCormick?

MR. McCORMICK: I think that's an appropriate thing for -- if nothing else, a descriptive nature to the record as to what the condition of the bandanna is, because certainly, it's different if the bandanna has that knot tied in the middle versus at the end, which is consistent with being worn over one's head or one's face to conceal their identity.

THE COURT: I am going to deny that motion. I think that the witness can testify the manner in which the bandanna was tied and could be asked the different ways it can be worn. That is certainly subject to cross-examination. (Reporter's Tr. at p. 13-14.)

During trial, the following colloquy took place between the prosecutor and Detective Stigerts with respect to the bandana:

Q: Was there anything unusual about -- or that you found to be significant as a homicide investigator about the condition of the bandanna?

A: Yeah. It was tied as you would if you would tie it and, basically, fold one flap down and then take the other two corners and tie it around and tie it around like it would go over your head. MR. IRISH: For the record, when she indicated tie it, she made a motion with both her hands to the back portion of her head.

(Id. at p. 122.) During cross-examination by Petitioner's trial counsel, the following colloquy occurred between Petitioner's counsel and Detective Stigerts:

Q: When you rendered the opinion that that was tied in a manner as if it would go over the head, you're talking about tying in the back and put over the top of somebody's head?

A: Yes.

(Id. at p. 144.)

In his state habeas petitions, Petitioner argued that the trial court erred denying his motion in limine on allowing this testimony regarding the bandana. The Sacramento County Superior Court was the last reasoned decision on this Claim and stated the following:

Petitioner next claims that the trial court erred in denying his motion to exclude any opinion that the bandana was used in a fashion to cover someone's face or any nature thereof . . . Petitioner fails to attach reporter's transcript of the court's denial of the motion, thus the court cannot assess the claim. Nor does petitioner make a prima facie showing that the ruling was erroneous, or that the admission of the opinion was prejudicial. As such, the claim fails under Swain, Harris, and In re Bower (1985)

38 Cal.3d 865. (Resp't's Lodged Doc. 11 at p. 3.)

Respondent argues that this Claim is unexhausted as the Sacramento Superior Court relied on Swain and Harris to deny this Claim. However, the Sacramento Superior Court also denied this Claim on the merits. Furthermore, the subsequent summary denials by the California Court of Appeal and the California Supreme Court are construed as denials on the merits. See Harrington, 131 S.Ct. at 784. Therefore, this Claim is deemed exhausted and will be analyzed on the merits pursuant to the standard enunciated in 28 U.S.C. § 2254(d).

First, to the extent that this Claim is asserting an error of state law upon the admission of Detective Stigerts' testimony regarding the bandanna, Petitioner's claim is not cognizable on federal habeas review and must be denied. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Second, "[a] habeas petitioner bears a heavy burdern in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), amended on reh'g by, 421 F.3d 1154 (9th Cir. 2005). The admission of evidence violates due process only if there are no permissible inferences the jury may draw from it. See id. at 1172. Even where a trial court errs in admitting the evidence at issue, such error is deemed harmless unless it had a substantial and injurious effect or influence in determining the fact finder's verdict. See Gill v. Ayers, 342 F.3d 911, 921 (9th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

In this case, Detective Stigerts' testimony regarding how the bandana was worn was a permissible inference in light of how it was tied. Thus, the admission of this evidence did not violate Petitioner's due process rights. Furthermore, even if allowing this type of testimony was in error, it did not have a substantial and injurious effect or influence in the verdict as it only related to how the bandana was worn which was a tangential issue to Petitioner's conviction. The case against Petitioner included a great deal of evidence implicating Petitioner as described in supra Part V.A. Therefore, Petitioner is not entitled to federal habeas relief on this Claim.

H. Claim VIII

Next, Petitioner argues that the trial court erred in denying Petitioner's motion to bifurcate the gang enhancement issue. Before trial, the trial judge denied the motion to bifurcate and stated the following:

The court has read and considered the defense motions to bifurcate the gang enhancement, as well as the People's opposition. The court has conducted a weighing process pursuant to Evidence Code Section 352 and considered the applicable case law. The court finds the probative ...


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