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Darrion Troy Gains v. Scott Kernan

April 18, 2011



Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1998 judgment of conviction entered against him in Sacramento County Superior Court on charges of first degree murder, committed while one or more of the principals was armed with a firearm; attempted murder committed with deliberation and premeditation, and while one or more of the principals was armed with a firearm; conspiracy to commit assault with a firearm; being armed in the course of the conspiracy; and first degree burglary while one or more of the principals was armed with a firearm. He seeks relief on the grounds that: (1) juror misconduct violated his right to a fair trial; (2) the trial court's exclusion of evidence of third party culpability violated his right to due process; and (3) jury instruction error violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background*fn1

A. Prosecution's Case

The victims and the defendants had known each other for years. Defendant Cook, his brother Brian, and Brian's girlfriend, Kami Jonutz, shared an apartment in Sacramento. During that same time, Jimmy Fonseca, the murder victim, Carl Kato, the surviving victim, and Sara Beasley also shared an apartment in Sacramento.

In the first half of October, Kato, Fonseca, and one of Fonseca's friends went with Lozo to a Raley's grocery store where they saw defendants Cook and Gains. An altercation occurred and Fonseca struck Cook in the head a number of times with a gun, knocking him to the ground. Later that day, Kato had a telephone conversation with Cook, who was angry and ended the call by hanging up on Kato.

A day or so later, while defendants Cook, Lozo, and Gains were in Brian Cook's apartment, and while in the presence of defendants Lozo and Gains, defendant Cook told Jonutz he had been pistol-whipped by Kato. Defendant Cook also told Jonutz some money had been stolen from Lozo. Defendants all appeared to be angry. The group talked about the incident for almost an hour, and all three defendants made comments indicating they were going to take revenge on Kato.

On Monday, October 16th, Cook and Lozo met with Jose Gomez and told him about an occasion in which Kato and someone else took money from them. Cook and Lozo seemed angry and upset. Cook told Gomez they were looking for a gun so Gomez took them to see a friend of his who sold them a .38 caliber revolver for "a couple hundred dollars." The gun was in a black fabric case.

Gomez drove the group back downtown and the defendants and Gomez went to the Burger King where they met Gains and his girlfriend, Tomesia Hale. The group decided to take Hale home.

In route, Cook told Hale that Kato had hit him in the head with a gun. He laughed along with the other men and said, "[t]hat's okay,

I'm coming back." Along the way, Cook told Gains " . . . I got the mask" and told Hale he and Gomez had purchased a gun earlier.

Later, defendants went to a small store where they purchased some knit caps to use when they went to Kato's apartment. After purchasing the caps, Gomez and Cook bought two additional ski masks, with eye holes already in them, at another nearby store. The group returned to Gomez's car, where defendants retrieved the gun they had purchased and agreed to meet Gomez later.

Meanwhile, around 5 p.m. that same day, Kami Jonutz returned home from work and found defendants Gains, Lozo, and Cook, and Brian Cook in her living room. Defendant Cook showed her a handgun which he removed from a leather zippered pouch. He described it as a .38 Special revolver and told her he had purchased it earlier that day. Defendants were talking about using the gun that night to get revenge on Kato, and spoke about it for almost an hour. Meanwhile, Brian brought three black knit caps into Jonutz's bedroom where he cut eye holes in them and then gave them to defendants. The three defendants left the apartment around 7 p.m.

Around 8 p.m., defendants and co-defendant Bolds met with Gomez and agreed to go to Kato's house that night. Around 9:45 p.m., the group drove to an area near Kato's apartment, and parked a short distance away. Around 9:45 p.m., the five men got out of Matt Cook's car, walked down an alley, and stood there for a while until Karen Gonzales spoke to Gomez. Karen and her partner lived in the apartment complex across the alleyway from the victims' apartment, and had seen the men standing in the alley near a dumpster. Karen thought something was suspicious because some of these men appeared to be hiding, so she approached the man near the dumpster, inquired what he was doing, and asked him to leave. Gomez, who was smoking, replied they were smoking a "joint" and told her they would be gone in a few minutes.

Gomez was armed with a small .380 automatic Glock which he had in his pocket and loaded while they were in the alley. Lozo had the .38 caliber revolver he had purchased from Garcia earlier that day. Before approaching Kato's apartment, Cook, Lozo, Gains, and Gomez pulled the ski caps down over their faces.

When Lozo and Gains approached Kato's apartment, Gomez saw someone inside pull back the curtain and look outside. The person appeared to panic and make a quick movement. Gomez thought he saw that person with a gun, whereupon he and Bolds fled toward the alleyway, running in different directions. As Gomez and Bolds left, Lozo forced the apartment door open.

Meanwhile, Kato had gone to bed and had locked his bedroom door. Beasley was in bed asleep while Fonseca sat in a chair in her bedroom listening to music and reading the newspaper near the window. Shortly before 10 p.m., Beasley was awakened by the sound of a gunshot and the sound of her bedroom door being kicked open. She saw a masked man standing in the doorway, holding a gun. The intruder was wearing dark, baggy clothing and a black ski mask with holes cut in it for his eyes and mouth. From a distance of only a few feet away, the intruder leaned over Fonseca and fired a second shot at him, stating in a deep voice, "[d]ie mother fucka, die." His voice sounded vengeful, angry and hateful. Fonseca fell to the floor and the gunman shot him again.

At the same time, Kato was awakened by loud noise and the sound of gunshots. His bedroom door was kicked opened [sic] and three men wearing dark clothing and ski masks entered. The largest of the three men was pointing a gun at him. All three of the men were about six feet tall.*fn2 Thinking it was a joke, Kato said, "[s]top playing." Seconds later, he saw two flashes and heard two gunshots. He jumped out of bed after the first shot and was hit by the second shot as he rolled off the bed. He ran into the other bedroom where he saw Fonseca lying on the floor, bleeding.

Beasley ran outside for help. Fonseca asked a neighbor who was attempting to assist him, to pick up a gun that was lying a few inches from his right hand and give the weapon to Beasley. The neighbor refused, but Beasley picked up the gun and put it beneath her bed.

About 11:30 p.m., defendants Cook and Gains returned to the apartment where they told Brian they had gone to Kato's house, kicked down the door and started shooting. Forty-five minutes later, Lozo arrived and said he had kicked in the door and was shooting.

Around 11 p.m., that same night, defendant Gains went to visit 15-year old Latrice Patterson, who lived with her grandmother. He arrived by car and appeared to be alone. He spoke with her for about 30 minutes and left.

The next morning, when Jonutz awoke, defendants Lozo and Gains were still in her apartment along with co-defendant Bolds. Lozo was talking to Brian about the previous night. He said he had kicked down the door and was shooting and that Cook and Gains had been outside the apartment somewhere. He indicated that inside the apartment there were "two guys sitting on the couch, and one of them grabbed for a gun," and was trying to load it when Lozo shot him. Lozo referred to Kato as one of the men he shot and referred to the other victim as "Mexican."

That same morning following the shooting, Gomez and Lozo had a telephone conversation in which Lozo told Gomez they had gone inside the residence and shot both Kato and another man, and that he had shot Kato in the stomach.

Meanwhile, Fonseca and Kato were transported for emergency medical care. Doctors were unable to save Fonseca. Kato sustained a bullet wound to the chest, and underwent surgery to remove the bullet. He recovered after being placed in intensive care.

Several days after the shootings, a story about the crime appeared in the newspaper. Jonutz overheard defendants and Brian Cook discussing the article in which they said they wanted Kato to die but they had "shot the wrong guy."

Defendants were taken into custody on October 20, 1995. Officers searched a vehicle parked at that apartment complex and found a plastic bag containing a maroon-colored shirt in the trunk.

When Detective Cabrera interviewed defendant Gains, Gains told Cabrera about the incident at Raley's involving Kato. Gains recounted his activities on October 16th. He indicated that he remained downtown that evening until Latrice Patterson paged him. By then, it was late, but he went to her residence where they spoke for 30 to 60 minutes and he told her about the pistol-whipping incident. Afterwards, he went to an apartment in Rancho Cordova where he spent the rest of the night. Gomez was not present.

When asked about getting revenge for the pistol-whipping incident, Gains responded " . . . he pulled a gun on me, yeah, but I just didn't feel the need to go kill him because I didn't die, thank God, I didn't die." Gains acknowledged ownership of the maroon-colored shirt seized from the trunk of the car parked at the apartment complex where he was arrested. He also said he read about the shooting incident in the newspaper and " . . . [the shooting victim] got what he deserved . . . ."

On one occasion when Hale visited Gains in jail, he told her he had been involved in the incident in which Kato had been shot and a friend of Kato's had been killed. He indicated that he and Gomez actually did it. On a later visit, he told Hale he was not the person who actually did it, but that he was driving. He also told Hale that defendant Cook was with him the night of the shooting.

In August or September 1996, Kato was incarcerated in the Sacramento County jail at the same time Lozo was being held. During that time, Lozo told Kato not to testify and to say this was a gang shooting. Lozo also "tried to put a hit on [Kato] in the county jail." Lozo told Kato he was "going to get what was coming to [him]," that Kato had "snitched on him" and not to go to court and testify. Lozo told Kato he was going to pay someone around $500 to have Kato "touched up." Lozo advised Kato to testify in court that " . . . it wasn't Tony and Matt, and them."*fn3

B. The Defense

Defendant Gains did not testify, but he, along with defendant Cook, called a number of witnesses to challenge the prosecution's witnesses' testimony identifying defendants and describing the physical characteristics of the masked men and shooters. The purpose of this evidence was to establish the wide variance between the height and weight of the masked men described by the eye witnesses and the defendants' actual height and weight.

Defendant Cook testified in his own behalf, putting on an alibi defense that included all three defendants and co-defendant Bolds. He denied that he ever considered killing Kato. According to Cook, Gomez approached him about getting revenge on Kato because he had fronted him some drugs and had not paid for them. Gomez wanted to "beat [Kato's] ass" and Cook was willing to help him. However, later, when Gomez told Cook that he had two guns, Cook told him he was not interested. He and the other two defendants returned to Cook's apartment where they stayed the remainder of the night watching movies. When Gomez telephoned them for a ride, he was told to call back. The next morning, Gomez telephoned and said "I took care of him with my homies."

II. Procedural Background

In a four-count information, defendants*fn4 were charged in count 1 with conspiracy to commit murder with eight overt acts alleged*fn5 (Pen.Code, § 182),*fn6 in count 2 with murder (§ 187, subd. (a)), in count 3 with attempted murder committed with deliberation and premeditation (§§ 664/187, subd. (a)), and in count 4 with burglary of an inhabited dwelling. (§ 459.) As to each count it was alleged against defendants Cook and Gains that they were armed (§ 12022, subd. (a)), and against defendant Lozo that he used a firearm. (§ 12022.5, subd. (a), § 1203.06, subd. (a)(1).) Additionally, it was alleged against Lozo in count 3 that he personally inflicted great bodily injury on the victim. (§§ 12022.7, 1203.075.) It was also alleged that the offenses charged in counts 2, 3, and 4 were serious felonies. (§ 1192.7, subds. (c)(1), (c)(18).) Defendants Cook and Gains were also charged with having served a prior prison term. (§ 667.5, subd. (b).)

A jury found defendants not guilty of conspiracy to commit murder as charged, but guilty of the lesser offense of conspiracy to commit assault with a firearm, and guilty of first degree murder, attempted murder with premeditation and deliberation, and burglary. The jury also found true the armed allegations against Cook and Gains, and the use of a firearm and great bodily injury allegations against Lozo.

Defendants Cook, Gains, and Lozo were sentenced on count 2 to 25 years to life and on count 3 to a consecutive life term. Defendants Cook and Gains were sentenced to an additional two years for the armed enhancements, and one year for the prior prison term enhancement, with the sentences on counts 1 and 4 stayed. (§ 654.) Defendant Lozo was sentenced to an additional 23 years for the enhancements, with the sentences on counts 1 and 4 stayed. (§ 654.)

People v. Cook, 91 Cal.App.4th at 914-915.

III. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state

court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). See also Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) ("When more than one state court has adjudicated a claim, we analyze the last reasoned decision"). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

B. Petitioner's Claims

1. Juror Misconduct

Petitioner's first ground for relief is that juror misconduct violated his right to a fair trial.

Pet. at 5-5(d).*fn7 The California Court of Appeal denied this claim, reasoning as follows:

Defendants contend prejudicial jury misconduct committed after one juror inadvertently overheard a statement made by defendant Gains to his attorney during trial requires reversal of their convictions. They claim the prejudicial impact of this statement cannot be rebutted because the statement contradicted their alibi defense and was not the type of information that a juror could disregard. The People contend the error, if any, was invited, there was no misconduct, and any presumption of prejudice was rebutted.*fn8 We find defendants were not prejudiced by the misconduct.

Jury misconduct is a mixed question of fact and law. We summarize the pertinent facts, accepting the trial court's credibility determinations and findings of historical fact where supported by substantial evidence. (In re Carpenter (1995) 9 Cal.4th 634, 646.)

On Monday morning, the third day of jury deliberations, the court clerk informed the trial judge that Juror 12 had left a message after adjournment the previous Friday asking to speak to the judge. The matter was taken up by the parties that same morning and Juror 12 was examined. When asked what she had heard, the juror advised the court as follows:

"A: It was when Gomez was on the stand, and he was saying what happened in the back alley, and he had conveyed that Bolds was behind him, and that they ran out, and him and Bolds ran out across the alley. And at that time I was looking at the Defendant Gains, and he turned to his lawyer, ...

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