The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on May 19, 2011, accompanied by "Petitioner's Memorandum of Points and Authorities in Support of Petitioner's Petition for Writ of Habeas Corpus" ("Pet. Mem.") and exhibits. Respondent filed an Answer on July 8, 2011. Petitioner filed a Reply on August 30, 2011.
After a joint trial with co-defendants Vernon Johnson ("Johnson") and Jonathan Moore ("Moore"), a jury found Petitioner guilty of two counts of willful, deliberate and premeditated attempted murder of Chaundi Grant ("Grant") and Gerald Kelly ("Kelly") (Counts 2 and 3), two counts of assault with a firearm on Grant and Kelly (Counts 4 and 5), and one count of shooting at a motor vehicle (Count 6) (Reporter's Transcript ["R.T."] 3904-10; Clerk's Transcript ["C.T."] 952-58). As to Count 2, the jury found true the allegations that a principal had personally and intentionally used and discharged a firearm which proximately caused great bodily injury (R.T. 3904-05; C.T. 952). As to Count 3, the jury found true the allegations that a principal personally and intentionally used and discharged a firearm (R.T. 3907; C.T. 954). As to Counts 2 through 5, the jury found not true the allegations that Petitioner personally used or discharged a firearm (R.T. 3905-09; C.T. 953, 955-57). As to Count 6, the jury found true the allegation that a principal personally and intentionally discharged a firearm which proximately caused great bodily injury (R.T. 3910; C.T. 958). As to all counts, the jury found true the allegations that the crimes were committed for the benefit of, and at the direction of, or in association with a criminal street gang, with specific intent to promote, further and assist in criminal conduct by gang members, within the meaning of California Penal Code section 186.22(b)(1)(C) (R.T. 3906-10; C.T. 953, 955-58). The trial court sentenced Petitioner to a total term of eighty years to life in state prison (R.T. 5108-10; C.T. 1034-41).
The Court of Appeal modified the defendants' sentences, but otherwise affirmed the judgment (Respondent's Lodgments 10, 12; see People v. Johnson, 2009 WL 3823890 (Cal. App. Dec. 15, 2009)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 16).
The following summary of trial evidence is drawn from the opinion of the Court of Appeal in People v. Johnson, 2009 WL 3823890 (Cal. App. Dec. 15, 2009). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision); Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1199 & n.1 (9th Cir. 2005) (same).
Gabriel Njie pled guilty to an attempted murder charge arising from this case. Mr. Njie admitted allegations a principal was armed in the commission of the crime and the offense was committed for the benefit of a criminal street gang. Mr. Njie was sentenced to 16 years in state prison. Mr. Njie also agreed to testify truthfully and completely at defendants' trial.
A few days before December 30, 2005, Mr. Johnson telephoned Mr. Njie. Mr. Johnson said that a friend had been killed. Mr. Johnson said he had a "chrome .357" and he wanted to "put in some work." Mr. Njie understood this to mean that Mr. Johnson intended to kill some enemies. Mr. Johnson called Mr. Njie again on December 30, 2005. Mr. Njie was asked to join Mr. Johnson in order to "put in some work"; i.e., commit gang violence. Both Mr. Njie and Mr. Johnson were members of the local gang.
Mr. Njie borrowed his girlfriend's burgundy Saturn.
Mr. Njie and a friend, identified only as "Dameon," drove to a house at 1940 108th Street near Vernon Street. Mr. Njie met Mr. Johnson in the house. The person identified only as Dameon was left at his house. Mr. Njie and Mr. Johnson then drove to Mr. Bennett's house. Mr. Bennett was a fellow gang member. Mr. Bennett's girlfriend, Trinity Metzgen, was at his house. Also present were Mr. Moore and an individual identified as Mike. After playing a video game briefly, all those present left in two cars to go to the liquor store at 108th and Western Streets. Mr. Njie, Mr. Johnson and Mr. Moore rode in the burgundy Saturn. Ms. Metzgen, Mr. Bennett, and the person identified as Mike rode in her Mustang automobile. Mr. Bennett was driving Ms. Metzgen's Mustang. The person identified as Mike was in the back seat of the two-door car. Ms. Metzgen saw a small black gun in the car.
Mr. Njie, Mr. Johnson and Mr. Moore stopped at the 108th street address to pick up some marijuana. Thereafter, they drove to the liquor store. Ms. Metzgen's Mustang was already there. Mr. Njie, Mr. Johnson and Mr. Moore went into the liquor store, made a purchase, then returned to the Saturn. Mr. Njie drove. Mr. Johnson was in the right passenger seat and Mr. Moore was in the rear right passenger seat. As Mr. Njie pulled out of the parking lot, a green four-door Honda automobile almost collided with the Saturn. Mr. Njie began to follow the Honda. However, he could not catch up to the Honda. Mr. Njie saw the Mustang driven by Mr. Bennett pursue the Honda.
The Honda was driven by Jose Saucedo. Mr. Saucedo, Rene Escalante, Arianna Meneses, Miguel Gutierrez and others identified only as Santiago, Lluvia and Josephine were also in the Honda. The group was going to celebrate Mr. Saucedo's birthday. Mr. Escalante saw a Mustang automobile begin to follow them after they had stopped at a signal. The Mustang drove alongside the Honda, passed them and then stopped in front of them. Mr. Saucedo turned left, eluding the Mustang. When the Honda drove back to Western Avenue, a burgundy colored car began to follow them. Mr. Njie had resumed the chase in the burgundy Saturn when the Honda passed him on Western Street.
Mr. Njie drove up next to the Honda to ask the driver a question. Mr. Njie wanted to know why the two cars almost collided. Mr. Njie lowered his front electric right passenger window. Mr. Johnson pulled out a gun from under the seat and shot into driver's side of the green Honda.
The shot shattered the driver's window of the Honda. Mr. Saucedo was fatally shot in the left side of his face. Mr. Escalante saw the right front passenger of the burgundy car reach through the open window. Thereafter, Mr. Escalante heard a gun fire and felt glass shatter on his face. Mr. Gutierrez, who was seated behind Mr. Saucedo on the left side of the Honda, saw the right front passenger of the car pull a gun and fire once. Ms. Meneses, who was seated on Mr. Guiterrez's lap, saw the car pull up next to Mr. Saucedo's Honda. Ms. Meneses saw a gun come out of the right front passenger side of the Honda. Ms. Meneses saw a flash from the gun before she ducked down. After the shooting, Mr. Njie pulled around the corner and parked. Mr. Njie was very nervous. Mr. Johnson asked Mr. Njie to start the Saturn. At first, Mr. Njie refused to restart the car. Mr. Johnson ordered Mr. Njie to start the Saturn or they would fight. Mr. Njie started the Saturn.
The passengers in Mr. Saucedo's Honda were able to steer the car to a curb when he lost consciousness. A nearby neighbor called the police for them. Mr. Saucedo died as the result of the gunshot wound to his cheek and neck that injured his carotid artery and jugular vein thereby causing a fatal hemorrhage.
Mr. Bennett, who had lost sight of the Honda, asked Ms. Metzgen if she had heard gunshots. Soon thereafter, Mr. Njie saw Ms. Metzgen's Mustang on 108th Street. Mr. Njie drove to a Valero gas station at Western Avenue and Imperial Highway. Mr. Bennett also drove into the gas station. After leaving the gas station, the two groups drove to a nearby bowling alley, where they went inside briefly. Thereafter, they smoked cigarettes outside the bowling alley. Photographs taken by video camera at the bowling alley showed Mr. Njie, Mr. Johnson, Mr. Moore, Mr. Bennett, the person identified as Mike, and Ms. Metzgen. Later, all of those present drove back to Mr. Bennett's house in the Saturn and the Mustang. Mr. Njie, Mr. Johnson, Mr. Moore, Mr. Bennett, Ms. Metzgen and the person identified as Mike went inside Mr. Bennett's house for 20 to 30 minutes.
The group left Mr. Bennett's house. Mr. Bennett was driving the Mustang, Ms. Metzgen sat in the passenger seat and the person identified as Mike was in the rear seat. Mr. Johnson asked if he could drive the Saturn. Mr. Njie said, "Yes." Mr. Johnson indicated he was going to drive through an area known to be the rival gang territory. As Mr. Johnson drove on Crenshaw Boulevard and 104th Street, Mr. Njie saw a white Caprice automobile with two individuals inside. Mr. Njie believed the two men were members of the rival gang because of the color of their clothing. The men in the Caprice drove off. Mr. Johnson was unable to find them. However, as they drove through a residential area, they saw the white Caprice which was now parked.
Mr. Johnson drove in front of the Caprice and parked.
Mr. Johnson tried to hand Mr. Njie the gun. Mr. Njie told Mr. Johnson, "I don't want the gun." Mr. Johnson then handed the gun to Mr. Moore. Mr. Moore then leaned his body out the window behind the driver's seat and shot at the Caprice. The gun jammed the first time Mr. Moore tried to fire. However, he then successfully fired the gun. The Caprice drove away quickly. As Mr. Johnson in the Saturn began following the Caprice, Mr. Bennett drove up in the Mustang. Mr. Njie saw Mr. Bennett standing outside the Mustang's sunroof. Mr. Bennett was chasing the Caprice.
Mr. Bennett told Ms. Metzgen to "duck." After Ms. Metzgen put her head down, she heard more than two gunshots from above her. Mr. Bennett's body was lifted off the driver's seat. Mr. Johnson was driving the Saturn directly behind Mr. Bennett. Mr. Njie heard gunshots. The gunshots sounded as though they were coming from the area in front of him. When Ms. Metzgen finally raised her head up, she asked Mr. Bennett what had happened. Mr. Bennett said he knew the people in the car they had followed. The Caprice turned onto another street.
Chaundi Grant and Gerald Kelly, who were brothers, went out at approximately 10:15 p.m. on December 30, 2005, to get some food. Mr. Grant was driving a white Chevrolet. As Mr. Grant was about to parallel park, Mr. Kelly yelled out in a frightened tone, "D, they about to bust." Mr. Grant understood that to mean they would be shot. As Mr. Grant looked over his shoulder, he saw gunfire coming out of what he believed to be a gray Mustang automobile. Mr. Grant was hit in the back of the head by the first shot. Mr. Grant drove away. At the time of trial, Mr. Grant had a scar approximately two and one-half inches behind his right ear and an inch above the bottom of his hairline. The rear windshield of Mr. Grant's car had been shattered. As he drove away, Mr. Grant heard additional shots being fired. The shots stopped for a while. Mr. Grant believed that he might have lost the assailants.
Mr. Grant did not see the Mustang again until he had turned on Van Ness Boulevard, the next street. The Mustang followed Mr. Grant and shots were fired at him. Mr. Grant's car was hit several times resulting in: three flat tires; holes near the rearview mirror; holes in the handle of the driver's door; and holes in the rear passenger door. Eventually, the other car drove off. Mr. Grant stopped at Prairie Avenue and 97th Street, where he passed out. Mr. Kelly flagged down a passing ambulance, which took Mr. Grant to the hospital. Mr. Grant received stitches. Mr. Grant returned to the hospital two weeks later for follow up care. Mr. Grant described "pussing and bleeding" and the inability to lie on the back of his head as a result of the wound.
After the shooting, those in the Mustang and the Saturn then returned to Mr. Bennett's house. Mr. Bennett used a flashlight to try to find shells in Ms. Metzgen's car. A short time later, Mr. Njie drove up in the Saturn with Mr. Moore and Mr. Johnson. Mr. Bennett, Ms. Metzgen and the person identified as Mike got into the Mustang. After driving around for a while, they went to the 108th Street address to drop off Mr. Johnson. When they arrived at the 108th Street address, they were immediately arrested.
Los Angeles Police Officers Joshua Kniss and Jason Schwab arrived at the 97th Street shooting scene. During the course of their investigation, the officers spoke with the liquor store owner. Officer Schwab reviewed a security video tape. Officer Schwab reviewed the tape from a time period around 9:45 p.m. Officer Schwab saw three individuals on the tape that wore hats with the color of the local gang. While at the liquor store, Officer Kniss spoke with Curtis Potts. They discussed Mr. Pott's affiliation with the local gang. As a result of that investigation, Officers Kniss and Schwab went with other gang investigators to 1940 108th Street. Mr. Potts identified this as his residence. As they approached the 108th Street residence, Officer Schwab saw a burgundy Saturn and a silver Mustang. The engines were running and the lights were on in both cars. The occupants of both automobiles were ordered out of the cars. All those inside the house were also detained. All of those involved except Mr. Johnson were arrested. Officer Kniss later returned to the 108th Street address with another officer at 3 or 4 a.m. At that time, Mr. Johnson was arrested.
Finally, Detective Valento testified concerning defendants' street gang and its relationship to the shootings. Mr. Moore gave an extensive recorded statement to the authorities which was played to the jury. Mr. Moore admitted participating in the events leading up to the shootings. Mr. Moore, who admitted riding with the others in the Saturn, stated that Mr. Johnson had a gun. But Mr. Moore denied actually seeing who shot Mr. Saucedo. This was despite the fact that Mr. Moore was seated in the same car with Mr. Johnson when Mr. Saucedo was fatally shot. But Mr. Moore saw Mr. Johnson dispose of a cartridge in a gutter. Mr. Johnson then reloaded the gun. Mr. Moore admitted being present at the shooting of Mr. Grant. At one point in his contradictory statement, Mr. Moore stated he shot the handgun into the air. But at another point, Mr. Moore said to Mr. Johnson: "Yeah, I think I did it. I think I got him." Mr. Moore was tried by a different jury from the one that evaluated the charges against Mr. Bennett and Mr. Johnson.
(Respondent's Lodgment 10, pp. 3-8; see People v. Johnson, 2009 WL 3823890 at *1-4).
1. The trial court allegedly denied Petitioner a fair trial by admitting the testimony of a gang expert, Detective Michael Valento (Ground One); and
2. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to object to the admission of Detective ...