The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Petitioner Taron Donnell Maddox's Petition for Writ of Habeas Corpus by a Person in State Custody. Petitioner challenges his convictions and sentence on sufficiency of the evidence, sentencing error, and ineffective assistance of counsel grounds. All parties having consented to proceed before the assigned magistrate judge, and with briefing completed, the matter is ready for decision. For the reasons discussed below, the Petition will be denied and the action dismissed with prejudice.
A. State Court Proceedings
On June 26, 2008, Petitioner was convicted of attempted murder (Cal. Penal Code §§ 664, 187(a)) and assault with a firearm (Cal. Penal Code § 245(a)(2)). Clerk's Transcript ("CT") at 146, 150, 322. The jury further found true that: (1) Petitioner committed both crimes for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by members of that gang (Cal. Penal Code § 186.22(b)(1)); (2) in committing the attempted murder in association with gang members with the intent to assist criminal conduct by gang members, Petitioner vicariously discharged a firearm causing great bodily injury (Cal. Penal Code §§ 12022.53(d), (e)(1)); and (3) in committing the attempted murder in association with gang members with the intent to assist criminal conduct by gang members, Petitioner vicariously discharged a firearm (Cal. Penal Code §§ 12022.53(c) and (e)(1)). CT at 146-51, 236-38; Reporter's Transcript ("RT") at 788-92.
Petitioner was sentenced to five years in state prison for attempted murder, and 25 years to life for the accompanying gang-related firearm enhancement under Penal Code §§ 12022.53(d) and (e)(1), with the sentences to run consecutively. CT at 316-17, 320-23. The court stayed the sentence on the assault with a firearm count, struck the § 186.22(b)(1) gang enhancements for sentencing purposes only, and stayed the sentence on the §§ 12022.53(c) and (e)(1) firearm enhancement. CT at 316-18, 320-22; RT at 798-805.
Petitioner appealed his conviction to the California Court of Appeal, which affirmed in an unpublished opinion. CT at 315; Lodged Doc. No. 6. He then filed for a petition for review in the California Supreme Court, which was summarily denied. Lodged Docs. Nos. 7, 8. Thereafter, he filed habeas corpus petitions in both the California Court of Appeal and the California Supreme Court, both of which were summarily denied. Lodged Docs. Nos. 9, 10; Petition, Exhs. D, E.
B. Federal Court Proceedings
On February 14, 2011, Petitioner, proceeding pro se, filed the instant Petition, pursuant to 28 U.S.C. § 2254, raising the following claims:
1. The evidence was insufficient to support his convictions and their associated enhancements (Grounds One through Eight);
2. The trial court erred in sentencing him (Ground Nine); and
3. Petitioner's appellate counsel was ineffective (Ground Ten). Petition at 6A-6F.
II EVIDENCE PRESENTED AT TRIAL
Since Petitioner is challenging the sufficiency of the evidence to support his conviction, the Court has independently reviewed the state court record. Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). Based on its review, the Court adopts the following statement of facts from the California Court of Appeal's decision as a fair and accurate statement of the evidence presented at trial:
At the time this case arose, [Petitioner] was a 19-year-old postal worker who lived with his family in Fontana and had saved enough money to buy a new Cadillac. Most weekends he visited his cousin and her sons in Long Beach, playing sports and video games with the boys. He had no criminal record and enjoyed a reputation for honesty, hard work and peacefulness. But he also ran with a bad crowd. Many of his friends were members of the Naughty 'n Nasty Crips (2N), an African-American gang in Long Beach. One day, [Petitioner] was in their company when they shot and wounded Miguel Perez. The primary issue at trial was whether [Petitioner] aided and abetted his buddies in carrying out a gang-related shooting, or, as [Petitioner] claimed, he was merely an unwitting witness to their crimes.
According to the prosecution's evidence, the shooting stemmed from an earlier incident involving Perez, an associate of the Hispanic gang Evil Ways, and 14-year-old Jeremiah Webb, the younger brother of 2N member Ezekiel "Zeke" Webb. Jeremiah had been skateboarding near his Garden Grove apartment with his twin brother Joshua and their friend Addison Ngo. As they played, they noticed Perez and other Hispanic juveniles spraying graffiti near Ngo's apartment. Ngo and Jeremiah approached the juveniles and threatened to call the police if they didn't knock it off.
Perez responded by asking Ngo and Jeremiah where they were from, a question often posed by gang members to determine a potential rival's gang affiliation. Jeremiah said he was from Long Beach, and Perez retorted he was from Orange County. Perez then retrieved a knife from his pocket, grabbed Jeremiah's skateboard, and pushed him into the bushes. The incident ended by Perez throwing the skateboard to the ground and Jeremiah fleeing to his nearby apartment with Joshua and Ngo. However, that wasn't the end of things. At the apartment, Joshua said he wanted to get Perez for what he did to Jeremiah. Joshua then spoke with Zeke on the phone and told him what had happened. During their conversation, he asked for Zeke's help in dealing with Perez.
Twenty minutes later, Zeke and [Petitioner] arrived at the apartment, along with 2N members Keith Mason, Herbert Percy and Davion Hughes. [Petitioner] had driven the group from Long Beach in his Cadillac. When they exited his car, Zeke was visibly angry and demanded to know Perez's whereabouts. Jeremiah pointed down the street to where Perez and his friends were standing. [Petitioner] then drove Zeke, Mason, Percy and Hughes to that location. They were followed on foot by a small crowd of onlookers that included Jeremiah and Joshua.
[Petitioner] pulled up near Perez's group, parked his car and joined his companions in confronting Perez. Zeke asked Perez if he had a problem, and a friend of Perez known as "Silent" belied his nickname by telling Zeke not to make a scene. Zeke said, "Somebody messes with my brother it's my business." He also warned Perez to take his hand out of his pocket. When Perez refused, Zeke turned to his pals and said "get off on him already." At that point, [Petitioner] pulled out a handgun and handed it to Mason, who promptly shot Perez. Mason tried to fire the gun again, but it jammed and he was unable to do so. He and his buddies then piled back into [Petitioner]'s car, and [Petitioner] drove them back to Long Beach.
According to the prosecution's gang expert Chris Zamora, it is highly unlikely gang members would ever allow a nongang member to accompany them in carrying out such a shooting. While acknowledging [Petitioner] had no criminal record and was not a documented gang member, Zamora said it is important for the driver in a group to be aware of any potential criminal activity that may occur, so that he can be prepared to depart the scene in a hurry. If the driver is not in the loop, he could easily leave some of the participants behind or balk when it came time to leave. The fact that did not happen in this case suggested to Zamora that [Petitioner] was either a "strong associate" or "active member" of 2N and that he acted for the benefit of that gang.
In forming these opinions, Zamora also relied on the fact that [Petitioner] had Mason and Percy listed by their gang monikers in his cell phone, and his phone contained a picture of 2N graffiti. In addition, when the police searched [Petitioner]'s car following the shooting, they found a brown bandana of the sort favored by 2N members and a backpack bearing the gang's graffiti. While in jail, [Petitioner] also wrote a letter to a top 2N member that contained a plethora of gang references.
Zamora also pointed out that in the gang culture, fear -- interpreted as respect -- is the currency by which gangs increase their standing in the community. Acts showing disrespect toward the gang must be met with an escalation of violence in order for the gang to maintain their respect. And that would include any perceived slights against a gang member's younger sibling. Although Zamora was not aware of any particular rivalry between 2N and the victim's gang, he said African-American and Hispanic gangs have been feuding in Southern California for decades. He opined that once word got out 2N gang members had shot a Hispanic gang member, the gang's reputation for violence would be enhanced significantly.
Testifying in his own behalf, [Petitioner] did not deny knowing about 2N. However, he insisted he has never been a member of that gang and had no intention of helping its members on the day in question. In fact, he said he had no idea Zeke, Percy and Hughes were even gang members. He said they were just his friends, and he had never seen them sporting gang attire or weapons. He also said the graffiti-laden backpack found in his car belonged to a friend of Percy or Hughes, and he didn't know the significance of the bandana that was found in his glove compartment. As for the letter he wrote to the high-level 2N member while in jail, he claimed it was just an attempt to get protection while he was in custody.
Describing the events leading up to the shooting, [Petitioner] testified he was hanging out with Zeke, Mason, Hughes and Percy at Percy's house in Long Beach when Zeke received a phone call from his brother Joshua. After the call, Zeke appeared sad and said Joshua had been jumped, or was about to be jumped, by a rival gang member. Zeke asked [Petitioner] for a ride to Joshua's apartment, and [Petitioner] reluctantly agreed. As they were leaving, Mason, Hughes, and Percy decided to join them.
Along the way, [Petitioner] played the music in his car so loud he couldn't hear any talking that may have been going on. When they arrived at Joshua's apartment building, he parked and got out with the others. But when Zeke walked over to Joshua, he stepped off to the side and could not hear what they were saying. Before long, some kids came up and announced where Perez and his gang were located. Zeke and the others ran to that location, while [Petitioner] got in his car and followed them. He parked his car near the site of the confrontation, but rather than joining in, he stayed in the car, cranked up his stereo and looked away. After a few minutes, his friends came running over to his car, and he drove them back to Long Beach.
[Petitioner] testified that, not only was he ignorant of what his friends had done, he told them he didn't want to know, and they didn't talk about it. Although he suspected something bad had happened, he did not want to be part of it. These claims notwithstanding, the prosecution proceeded on the theory [Petitioner] aided and abetted the shooting by driving and handing the gun to the shooter Mason. Alternatively, the prosecution theorized the charged crimes of attempted murder and aggravated assault were a natural and probable consequence of the targeted offense of disturbing the peace.
The defense argued [Petitioner] was being prosecuted simply because of his association with Zeke and the other gang members. It claimed [Petitioner] was neither aware of, nor involved in their crimes, and therefore he was not criminally responsible for what occurred. The jury convicted [Petitioner] of all ...