The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Issac Vicente, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of fifteen years to life in prison after a jury convicted him on one count of discharging a firearm at an occupied motor vehicle (Cal. Penal Code § 246) with an enhancement for committing the crime for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)). Petitioner raises twelve claims in this federal habeas petition; specifically: (1) the prosecutor used peremptory strikes to remove three jurors based on their race, in violation of the Equal Protection Clause ("Claim I"); (2) insufficient evidence exists with regard to a finding that Petitioner was a member of a criminal street gang due to lack of evidence of the group's "primary activities" ("Claim II"); (3) the jury instruction regarding "primary gang activity" was in error because there was no 1 evidence of the possible "primary activities" given in the instruction ("Claim III"); (4) insufficient evidence exists with regard to a finding that Petitioner was a member of a criminal street gang due to lack of evidence of the group's "pattern of criminal gang activity" ("Claim IV"); (5) due to the jury instruction regarding "pattern of criminal activity," there was insufficient evidence of a "pattern of criminal activity" ("Claim V"); (6) insufficient evidence exists from which the jury could conclude the crimes were committed with the requisite intent and for the benefit of, at the direction of, or in association with a criminal street gang ("Claim VI"); (7) the failure of the trial court to give a jury instruction with regard to an admission by the Petitioner that he was a gang member was not harmless ("Claim VII"); (8) use of Petitioner's statement that he was a gang member violated Petitioner's Miranda rights ("Claim VIII"); (9) the evidence was insufficient for a conviction for discharging a firearm at an occupied motor vehicle ("Claim IX");
(10) failure to instruct the jury as to the lesser included offense of attempt violated Petitioner's right to due process ("Claim X"); (11) the failure of the jury to follow the trial court's instructions denied Petitioner his right to an impartial jury ("Claim XI"); and, (12) the trial court's refusal to dismiss a juror who spoke with a witness denied Petitioner his right to an impartial jury ("Claim XII"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
The Offense The offense involved a daylight shooting in the parking lot of a Sidewalk Pizza restaurant in Sacramento on March 2, 2006, around 5:30 p.m. There were two witnesses: J.J., a Sidewalk Pizza customer who had momentarily stepped outside the restaurant for a cigarette; and R.W., who was working as the restaurant's cashier and saw the event unfold out the front window.
That unfolding took place as follows. Near where J.J. was standing outside the restaurant, a white Camaro, with a nonvisible, flipped-down rear license plate, had parked in backwards, i.e., facing into the parking lot. The passenger in the Camaro, later identified as [Petitioner's co-defendant]Tomas, had just gotten out of the car when a white Ford, driven by a Hispanic male, drove slowly by the Camaro. The driver of the Ford remarked to Tomas, "What's up," and displayed a large handgun. The two men argued. As the Ford drove through the parking lot, Tomas picked up rocks and threw them at the car. Tomas continued walking alongside the Ford and yelling at its driver (through the passenger side window), all the way to the parking lot exit where the Ford stopped.
While Tomas was arguing with the Ford's driver, a man, later identified as Vicente (who is Tomas's brother), emerged from the driver's seat of the Camaro and retrieved a handgun from the trunk. Crouching down, Vicente snuck up behind the Ford's rear passenger side and fired two or three shots into the car. J.J. saw Vicente pull the trigger while just outside the Ford, and he heard the gunshots. R.W. said that Vicente reached into the passenger window of the Ford (to about wrist level) with a gun in his hand, and he heard two to three gunshots. During the shooting, Tomas was one or two feet "right behind" Vicente.
The Ford turned left out of the parking lot, and drove away as if nothing had happened. Tomas and Vicente ran back to the Camaro, taking off in the same direction as the Ford. Before leaving the parking lot, however, the Camaro stopped, and Tomas flopped out of the passenger side and grabbed things off the ground at the shooting site.
R.W. called 911. Officers apprehended defendants a short time later in the vicinity. The defendants and their car were then identified.
A criminalist testified that gunshot residue found on Vicente indicated he either fired a weapon or was less than two or three feet in front of a weapon fired at him. Gunshot residue on Tomas indicated he either fired a weapon, handled a fired weapon or fired ammunition, or was in the vicinity of a firearm that was fired.
The Gang Enhancement A gang expert, Detective R., testified that Surenos and Nortenos are rival Hispanic street gangs. Surenos is an umbrella term, and a particular group of Surenos that identifies with some geographical area is considered a subset. Surenos identify with the color blue and the numbers 13 and three.
About a month before the present offense, Vicente told Detective
R. that he was a Sureno. Tomas told a probation officer that he too was a Sureno and affiliated with a Surenos gang, the Sur Town 916. Neither officer was aware of the Sur Town 916 subset. Support for these statements from defendants and for Detective
R.'s opinion that the defendants were Surenos street gang members came from tattoos, monikers (gang nicknames), and photos, as well as hairstyles and clothing on the night of the offense and evidence showing that defendants had written at least a portion of "SUR" in large letters in their holding cell during the present trial.
Detective R. opined that the primary activities of the Surenos street gang include, among its more serious crimes, "felonious assault." He detailed the facts of two previous shootings of pedestrians done by two different Sureno gang members.
Detective R. also explained the importance of respect in gang culture. He opined that the present offense had the potential to benefit the defendants' gang and their status within it.
A defense gang expert testified that Nortenos and Surenos are identities, rather than gangs, although specific gangs may operate under those identities.
II. 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); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker, 423 F.3d at 1091. Petitioner raised hisclaims on direct appeal to the California Court of Appeal, Third District, which denied his claims in a reasoned decision. See Slip Op. Petitioner also raised his claims in a petition for review to the California Supreme Court. See Lodged Doc. No. 4 (Petition for Review), at 5. The petition for review was summarily denied. Id. Because the California Supreme Court summarily denied Petitioner's petition for review, this court looks through that decision to the last reasoned state court decision. Ylst, 501 U.S. at 806. Therefore, the state court decision that is appropriate for review is the decision of the California Court of Appeal.
III. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner asserts that the prosecutor improperly struck three potential jurors because they were of Hispanic descent; specifically Mr. Echivaria, Mr. Cordoza, and Ms. Galvez. Purposeful racial discrimination in selection of the petit jury violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure. Batson v. Kentucky, 476 U.S. 79, 88 (1986); see also Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303 (1880) (invalidating a state statute that provided that only white men could serve as jurors); Martin v. Texas, 200 U.S. 316, 321 (1906). Under Batson, the use of peremptory challenges to remove a prospective juror because of that juror's race or ethnicity is unconstitutional discrimination. Batson, 476 U.S. at 89 ("[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.") To establish a Batson claim, the defendant must first make a prima facie showing that a challenge was made on an impermissible basis, such as race. Batson., 476 U.S. at 96; see also Johnson v. California, 545 U.S. 162, 170-71 (2005). To establish a prima facie case, a petitioner must show that (1) the prospective juror is a member of a cognizable racial group, (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by race. See Boyd v. Newland, 467 F.3d, 1139, 1143 (9th Cir. 2006) (citing Batson, 476 U.S. at 96).*fn2
The California Court of Appeal determined that the trial court properly concluded Petitioner failed to make a prima facie case:
Defendants contend they were denied their state constitutional right to a representative jury and their federal constitutional right to equal protection when the prosecutor peremptorily challenged three apparent Hispanic jury panel members, and the trial court concluded that defendants had not made a prima facie showing of group bias. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 86 [90 L.Ed.2d 69] (Batson ).) We disagree with defendants' contention.
Under Wheeler and Batson, the use of peremptory challenges to remove a prospective juror because of that juror's race or ethnicity is unconstitutional discrimination. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at pp. 86-87.)
To establish a Wheeler/Batson claim, three steps are involved. First, a defendant must make a prima facie case by showing that the "'totality of the relevant facts'" gives rise to a discriminatory inference. (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129], quoting Batson, supra, 476 U.S. at p. 94.) If that is done, the People must then show race-neutral reasons for the challenge. (Johnson, supra, at p. 168.) And if that is done, the trial court must then decide whether purposeful racial discrimination has been proved. (Ibid.)
Here, the trial court determined that defendants had not cleared the first hurdle-they had not made a prima facie case. "The trial court's determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence. [Citation.] We examine the record of the voir dire and accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand." (People v. Jenkins (2000) 22 Cal.4th 900, 993-994, fn. omitted.) Three prospective jurors with Hispanic surnames are at issue: Mr. C, Mr. E, and Ms. G, who were excused in that order.
Mr. C grew up in Vallejo around "different gang members." His brothers were "affiliated" with neighborhood area-like gangs. He was not involved "in either side," and he said his experience would not affect his judgment in this case.
Mr. E was an insurance adjuster who had previously worked as a bilingual assistant for a school district. Mr. E personally knew Vicente's counsel, Mr. Enriquez, who was a friend of Mr. E's parents. Mr. E and Mr. Enriquez had been at social functions together. Mr. E stated he could be fair to all sides; knowing Mr. Enriquez "shouldn't" affect his judgment, and he did not "think" he would favor Mr. Enriquez's side.
Ms. G was not individually questioned by the trial court or by any party. The prospective jurors, however, had turned in questionnaires which are not in the record.
After the prosecutor excused Ms. G, defendants made their Wheeler motion, arguing that the prosecutor was using peremptory challenges to excuse "all the Hispanics." The prosecutor immediately responded that Ms. G "was White." The trial court noted that Ms. G "had blonde hair and a fair complexion," and that she did not appear "to be obviously Hispanic."
The record supports the trial court's determination that defendants failed to make a prima facie showing. The prosecutor certainly could have challenged Mr. C and Mr. E for legitimate reasons. (People v. Farnam (2002) 28 Cal.4th 107, 135.) Mr. C's brothers were affiliated with a gang, and Mr. E was personally friendly with Vicente's counsel. That leaves Ms. G: blonde-haired, fair-complected Ms. G, whose first name was "Shari" and whose surname the trial court described as "Spanish-sounding." (See People v. Bonilla (2007) 41 Cal.4th 313, 344 ["Where a prosecutor is unaware of a prospective juror's group status, it logically follows he cannot have discriminated on the basis of that status"].) The defendants described themselves as Hispanic/Mexican. On this record, we cannot say the trial court's determination of no prima facie showing lacks substantial evidence.
Tomas additionally alleges, in passing, that a "'comparative analysis'"-i.e., comparing the voir dire responses of these three excused prospective jurors with those of the other prospective jurors-would support the group bias claim. This allegation runs into a thicket of procedural roadblocks. Defendants did not assert this point in the trial court. They have asserted this point only summarily on appeal, without any argument. And our state Supreme Court has concluded that a comparative analysis is inappropriate where a prima facie showing has not been made, because, without any reasons having been posited for the peremptory challenges, there is "no fit subject for comparison." (People v. Bell (2007) 40 Cal.4th 582, 601.)
The trial court began the questioning of prospective jurors by asking some general questions to the venire as a group. After introducing Petitioner and his counsel, Armando Enriquez, the judge asked: "Does anybody recognize either Mr. Vicente or Mr. Enriquez? Have you ever seen or heard of either one of them before?" Lodged Doc. No. 2 (Rep.'s Tr. of Voir Dire [hereafter "V.D. Tr."]) at 16. One prospective juror, Mr. Echivaria, recognized Enriquez as a friend of his parents and had been at social occasions where Petitioner's counsel was also present, though he did not know him well. Id. at 16-17. Echivaria did not believe his connection to Enriquez would make him favor Petitioner's case or affect his judgment. Id. at 16-17.*fn3
Later in the general questioning, the court asked the prospective jurors whether they had any experience with gangs, and specifically whether anyone was familiar with the Surenos gang. Id. at 44-45. A prospective juror, Mr. Cordoza, indicated that he was familiar:
THE COURT: Mr. Cordoza, what's the basis of your experience? CORDOZA: Just growing up around the different gang members. THE COURT: Did you personally know people that were associated with one or more gangs?
CORDOZA: Yeah. Oh, yeah. Never invovled in either side, but definitely aware of it.
THE COURT: Anything about your experience that would affect your judgment in this case?
Id. at 45. The court then proceeded through the individual potential jury members with individual questions, some based on responses the prospective jurors had previously filled out. When the court reached Cordoza, he related several instances in his life in which he had been close to criminal activity, including his brother's car being stolen from him at gun point, the rape of his previous girlfriend, and the murder of his best friend's father at a truck stop near Vallejo, California (a case of mistaken identity). Id. at 67-68. Cordoza stated that the perpetrators of the rape and the murder had been "brought to justice." Id. at 68. Cordoza believed he could be fair to all sides. Id.
When the attorneys were given an opportunity to ask direct questions of the panel, neither defense attorney asked any questions of Cordoza. The Deputy District Attorney, Ms. Franklin, asked Cordoza several questions regarding his relationship with gangs. Id. at 96-99.
FRANKLIN (D.A.): Mr. Cordoza, you had what sounds like maybe is a unique experience growing up in the -- I don't think at least we've heard it from anyone else -- you grew up in an area where gangs were around. You ...