The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner Edward Ceja was convicted by an Orange County Superior Court jury of possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)) and active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). The jury also found true the allegation that Petitioner possessed the firearm for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)). Petitioner admitted that he had suffered a prior "strike" conviction (Cal. Penal Code §§ 667(d),(e)(1), 1170.12(b),(c)(1)). Petitioner was sentenced to prison for a term of twelve years.
Petitioner appealed his conviction to the California Court of Appeal, arguing that the evidence was insufficient to support the firearm charge and that he was denied a fair trial. (Lodgment 4.) On September 20, 2010, the court of appeal affirmed Petitioner's conviction in a written opinion. (Lodgment 7.) Petitioner filed a petition for review in the California Supreme Court, raising the same claims as in his earlier appeal. (Lodgment 8). The California Supreme Court summarily denied the petition. (Lodgment 9.) On March 28, 2011, Petitioner filed this petition for writ of habeas corpus, raising identical grounds for relief.
The underlying facts are excerpted from the unpublished opinion of the California Court of Appeal. People v. Edward Anthony Ceja, No. G042106 (Cal.Ct.App., Sept. 20, 2010) (Lodgment 7).*fn1 In all quoted sections of this Report, the term "Petitioner" is substituted for "Defendant."
1. Events Leading up to November 22, 2008 Frankie Velasquez, a Folks gang member, lived in Folks gang territory on the corner of Neighbors Avenue and Mohican Way in Anaheim. Two weeks before the charged incident, members of Citron Street, a rival gang, drove through the Folks neighborhood while Velasquez was standing outside his house. The Citron Street members challenged Velasquez and fired two shots at him with a "bird shot shotgun," blinding him.
On November 20, 2008, Anaheim Police Officer Brian Browne, who also testified as a gang expert, was on patrol with his partner in the Mohican Glenn neighborhood. His partner saw Velasquez with approximately five other "gang types" in the alley by the garage behind Velasquez's house. According to Browne, Petitioner stood out because of all of his tattoos. Browne heard the officers' presence announced as they approached the group on foot. Officer Browne detained the group, which included Petitioner and Robert Kundysek, an active member of Folks.
Petitioner was cooperative and discussed his tattoos. Browne spoke about Velasquez having been shot. Petitioner said he did not know what had happened yet because he had just been released from prison four days earlier. Petitioner admitted being a member of Folks and that his moniker was "Soldier." Browne asked why Petitioner was "posted up" and Petitioner said because it was his "hood." When asked if he was going to retaliate for Velasquez's shooting, Petitioner said, "We'll see. I just got out, and I need to find out what is going on." Browne advised Petitioner he was in violation of his parole by congregating with other gang members and Petitioner said they were just visiting him to pay him respect for having served his time in prison.
Browne contacted Petitioner in the neighborhood again the next evening. Petitioner was standing by himself in front of a fence bordering his apartment complex.
Petitioner's head was cleanly shaved and the tattoos on his head were exposed. Petitioner did not attempt to run. He said he still backed up Folks, but that he did not know whether he was going to participate in any gang-related activity. The police searched Petitioner on each occasion. He did not have any weapons or contraband on his person.
Officer Richard Browning of the Anaheim Police Department patrols the Folks gang territory, which consists of large apartment complexes, duplexes and fourplexes. On November 22, he was on patrol in that area in a marked black and white patrol car. As he approached Mochican, he saw 10 to 15 people underneath a tree in front of an apartment on Neighbors, and about 10 to 15 yards away, three people standing underneath a street sign on the corner of Mohican and Neighbors. Browning identified the three as Petitioner, Kundysek, and Erik Lopez. As Browning's vehicle turned the corner, the three looked over their shoulders and ran westbound on Neighbors.
Browning drove into an alleyway in an attempt to intercept them. He turned off the patrol car's lights and got out, walking into a breezeway between two sets of apartments. He "peeked around the corner" and saw Petitioner go to the front lawn of one of the apartment buildings. Browning followed, attempting to close the distance between them. Hearing a voice, Browning stopped. He saw Kundysek looking up and down the street. Kundysek and Petitioner started to walk across the lawn. Browning walked to within five feet of Petitioner and Kundysek without them noticing. When he turned the corner, he saw Petitioner, Kundysek, and Lopez together. He detained all three, ordered them to their knees, and called for backup. Petitioner had on gloves at the time he was arrested.
Officers Anderson and Staymates responded. Browning told Anderson to check the areas around the breezeway and in front of the apartments for a weapon or contraband. Staymates watched Petitioner, Kundysek, and Lopez while Anderson and Browning searched. Anderson found a gun about five to six inches from the top of a bush. The gun and bullets were inside a black beanie. Browning testified that the beanie was warm to the touch.
Browning pulled Lopez away from the other two to talk about the gun. Browning said they found a gun and wanted to know who it belonged to, because he knew it "belonged to one of the three of them." Lopez motioned with his head toward Petitioner and said Petitioner had the gun. Lopez said he could not talk in from of the others. Brown said they would talk at the police station.
3. Erik Lopez's Testimony Lopez testified under a grant of immunity. He had lived in the Folks neighborhood for four or five months and was familiar with the Folks gang. On November 22, he was walking to the house of a girl he knew when he saw Petitioner standing on the corner of Neighbors and Mohican. Petitioner, who Lopez knew only as "Soldier," asked Lopez to "post up" with him. According to Lopez, "post up" means to stand around doing nothing. Lopez said he had to go somewhere and asked Petitioner why he was not ...