FINDINGS AND RECOMMENDATIONS
Petitioner Olague, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Olague stands convicted of first degree murder and attempted murder in the Yolo County Superior Court, case number 035627, for which he was sentenced to life in prison without the possibility of parole in addition to other consecutive terms.
Olague was charged by indictment, together with his two co-defendants at trial (Ernesto Duran Arellano and Oscar Hurtado Cervantes), and four others (Christina Marie Marten, Nathaniel Easlon, Richard Betancourt, and Gilberto Lopez) with committing the following crimes on Halloween in 2002:*fn2
Count 1: First-degree murder of Robert Stepper (§ 187, subd. (a)), with enhancements alleging the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)), Cervantes used a firearm which caused death or bodily injury (§ 12022.53, subds.(a), (d)), and a principal personally discharged a firearm causing death or bodily injury (§ 12022.53, subd. (a)).
Count 2: First-degree murder of Eric Folsom, with the same enhancements as above.
Count 3: Attempted murder of Vicki Folsom (§§ 187, subd. (a); 664, subd. (a)), with the same enhancements as above.
Count 4: Attempted murder of Jessica Valdez, with the same enhancements as above.
The indictment also alleged special circumstances for multiple murder and intentional killings as participants in a criminal street gang (§ 190.2, subds. (a)(3), (a)(22)). The prosecutor sought the death penalty against Arellano and Cervantes, but not against Olague.
At trial, the prosecution presented evidence supporting its theory that, although the Norteno and Sureno gangs were rivals, their members cooperated in committing these crimes because Arellano (a Norteno leader or "shot caller") and nonparty Candelario Garza (a Sureno leader) cooperated in the sale of drugs in Woodland. Arellano (a Norteno) ordered the hit because victim Stepper (a Norteno) owed him money for drugs, and Arellano wanted to send a message to others who owed money and re-instill fear in the community. Christina Marten (a Norteno) brought Stepper to the place of attack. The shooter was Cervantes, who was not a gang member but who associated with Nortenos, Surenos, and Crips. Stepper was the target, and the other victims were shot either because they were in the "kill zone" or because Cervantes intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang member)*fn3acted as lookout. Arellano's neighbor, Gilberto Lopez (a Sureno), was the getaway driver. Olague (a Sureno) was on the street at the time of the shooting to ensure that all participants did what they were supposed to do.
Easlon and Betancourt (Norteno) testified about a gathering at Arellano's apartment on Halloween in 2002, before the shootings. At the gathering, Arellano asked Easlon and Betancourt to "fuck up" (beat up) Robert Stepper, who owed Arellano about $500 to $800 and was not doing what he was supposed to be doing to help the drug trade. Easlon (who owed Arellano $1,600 for drugs) and Betancourt refused to do the actual deed, because Stepper was their friend. Arellano asked Cervantes, who was also there, to "handle it."*fn4 Cervantes agreed and was given some drugs. Easlon, to pay off his debt, agreed to Arellano's request to station himself at the end of the street on Halloween and "make sure nobody we know goes down that street...." Lopez came to the door and was told by Arellano, "[i]t's going to go down," and Lopez was needed as the getaway driver. (Though Lopez had a "beef" with Cervantes, who impregnated Lopez's girlfriend, there was evidence that Lopez did not know Cervantes would be involved.) Arellano took a phone call, then said "Jaime" and Garza were on the way over with the gun and told Easlon and Betancourt to leave. Easlon testified he knows three "Jaimes," one of which is Olague. Easlon did not stay and therefore did not know if it was Olague who showed up. However, Easlon testified it was Olague who showed up when the crime took place.
On Halloween, around 10:00 p.m., as planned, Easlon concealed himself at the end of Oak Avenue to stand watch. Marten walked Stepper down Oak Avenue and then left. Stepper began chatting with the other victims near a pickup truck in victim Valdez's driveway. Olague, whose job was to make sure others did their job, walked Cervantes partway down the street.
As related by the surviving victims, a man approached the victims, "kind of"grinned, pulled out a gun, aimed the gun at Stepper's head, and fired from a distance of two feet (killing Stepper). The shooter then pointed the gun at the others and fired multiple times (killing 17-year-old Eric Folsom and injuring 14-year-olds Vicki Folsom and Jessica Valdez). At trial, one of the survivors identified Cervantes as the shooter, though she had not identified him in a photo lineup.
As Lopez drove the getaway car, Cervantes hit the dashboard and said, "I got 'em, I got 'em." Lopez had not expected any shooting. He later told Garza that Veronica Lugo (girlfriend of Guillermo Ramirez, who had been with Lopez) was in an alley and heard the gunshots. Lugo testified she was summoned to an apartment the next day where several people, including Cervantes and Olague, were present. Garza, Lopez, and Ramirez led her into a bedroom and told her to keep her mouth shut or she and her children would be killed.
An expert in criminal gangs, Sergeant Steven Gill, said rival gangs do work together in drug activity and will commit a crime such as murder together to further their criminal enterprise, enhance both gangs' reputations, and further instill fear and intimidation in the community and other gang members. A non-gang member's participation would be a way to be accepted by the gangs.
Olague and both of his co-defendants testified at trial and denied any involvement. Arellano (age 34 at trial) said he was a Norteno for 10 years but was not a shot caller. He denied any pre-Halloween meeting, denied ordering or suggesting that anyone kill Stepper, and said he did not even know Cervantes or Olague before Halloween 2002, except for an incident where he almost got into a fight with Olague (whom he pegged as a Sureno). Arellano admitted that on one occasion he told Cervantes to "handle it" but testified he was telling Cervantes to go get a pipe to smoke drugs. Stepper was Arellano's friend, did not buy drugs from him, and did not owe him money. On Halloween, Arellano was on his way home, saw Stepper, said hello, and noticed a car full of people wearing blue (a Sureno color). Arellano said his only prior crimes were spousal abuse, selling drugs, and participating in a prison riot in which he was just following gang orders, though he was in front of his cohorts.
Cervantes (age 28 at trial) testified he has never belonged to a gang, though he knew gang members. He knew Olague before Halloween, but not Arellano. When arrested, Cervantes said he "knew this day was coming," but he thought he was being arrested for violating probation. Cervantes denied telling his cellmate, Richard Bowie, about the case and denied tampering with his handcuffs (evidence of which was adduced as an escape attempt). Cervantes had a prior felony conviction for selling drugs and a drug-related misdemeanor. Alibi witnesses testified Cervantes was with them that night.
Olague (age 29 at trial) testified he was a gang member when he lived in Los Angeles (he equivocated on whether it was Sureno) and associated with "southerners" when he moved to Woodland. He was friendly with Cervantes. Olague did not know or have any contact with Arellano, except Olague ran from a brief confrontation with Arellano as a member of a rival gang in a parking lot about a month before the crimes. Olague denied any involvement in the crimes. He came upon the crime scene after a friend dropped him off and he was walking to a friend's house. Olague admitted two prior felony convictions, for auto theft and verbally threatening his ex-wife.
To advance the defense theory that the police pressured the accomplices to make false confessions consistent with the prosecution's theory, the defense hammered at inconsistencies in the accomplices' statements, and a defense expert testified about how police interrogations can elicit false confessions.
In May 2006, the jury returned verdicts finding all three defendants guilty on all counts and in addition finding true all enhancement allegations. The trial court denied defense motions for new trial.
Olague was sentenced to life without the possibility of parole on Counts 1 and 2 (first degree murder), seven years on Count 4 (attempted murder) and a consecutive term of two years, four months on Count 3 (attempted murder). The court imposed additional terms of 25-years-to-life as firearm enhancements on Counts 1 through 3.
Olague and his co-defendants appealed to the California Court of Appeal, Third District. The court of appeal modified co-defendant Cervantes's sentence but affirmed the convictions and sentences in all other respects. A petition for review to the California Supreme Court was denied.
The petition sets forth eight grounds for review: Grounds One and Two: Prosecutorial and governmental misconduct rendered the trial fundamentally unfair and the trial court erred when it denied the defense motion to recuse the prosecutor for the alleged misconduct;
Grounds Three and Four: The trial court made two instructional errors;
Ground Five: The trial court erred in not granting the defense's motion for acquittal following the prosecution's case-in-chief;
Ground Six: The trial court erred in admitting an expert's opinion that Olague was a Sureno "shot caller" based on hearsay;
Ground Seven: The trial court denied Olague his right to present a complete defense when it excluded evidence of third party culpability;
Ground Eight: The court erred at sentencing on the firearm enhancements.
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 be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). UnderAEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if they are not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360 (2002).
A. Grounds One and Two: Prosecutorial Misconduct
Olague claims that multiple acts of prosecutorial and governmental misconduct rendered his trial fundamentally unfair and that the prosecutor should have been recused. Specifically, Olague contends (1) the Yolo County District Attorney improperly addressed the grand jury before the court reporter set up the equipment; (2) the police conducted a warrantless search of his jail cell and interfered with his attorney client relationship by bringing criminal charges against his trial attorney for failing to redact witness information; (3) the police altered the crime scene before the jury viewed it; (4) the prosecution approached a defense witness in the hallway and attempted to coerce that witness's testimony; and (5) the prosecutor improperly contacted a potential defense expert without identifying himself as a prosecutor in the case. Olague contends these acts of misconduct require reversal, either individually or cumulatively.
The appropriate standard for a federal court reviewing a claim of prosecutorial misconduct on habeas corpus is the narrow one of whether the conduct violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). "The relevant question is whether the prosecutor's error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Smith v. Phillips, 455 U.S. 209, 219 (1983) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor").
Factors to be considered in determining whether habeas relief is warranted include whether the prosecutor manipulated or misstated the evidence; whether the conduct implicated other specific rights of the accused; whether the objectionable content was invited or provoked by defense counsel's argument; whether the trial court admonished the jurors; and the weight of the evidence against the defendant. Darden, 477 U.S. at 181-82. Relief is limited to cases in which the petitioner can establish that the misconduct resulted in actual prejudice. See Johnsonv. Sublett, 63 F.3d 926, 930 (1995) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38). In other words, prosecutorial misconduct in violation of due process warrants habeas corpus relief only if it had a "substantial and injurious effect or ...