The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of murder and the attempted murder of others along with various enhancements. He was sentenced to life without the possibility of parole for the murder, twenty-five years to life with the possibility of parole for a gun use enhancement consecutive to twenty-eight years and four months for the attempted murder convictions along with corresponding enhancements on those attempted murder convictions. Petitioner presents several claims in his federal habeas petition; specifically: (1) jury instructional error on aiding and abetting which created a conclusive presumption on the prosecutor's burden of proof ("Claim I"); (2) prosecutorial misconduct when the prosecutor referred to a case as being from the California Supreme Court when in actuality it was from the California Court of Appeal ("Claim II"); (3) prosecutorial misconduct when the prosecutor provided "unsworn testimony" in the form of a videotape transcript that was not admitted into evidence ("Claim III"); (4) prosecutorial misconduct when the prosecutor presented knowingly false testimony ("Claim IV"); (5) ineffective assistance of counsel in making a concession during closing argument ("Claim V"); (6) ineffective assistance of counsel in failing to object to the prosecutor's characterization of the kill zone doctrine ("Claim VI"); (7) jury instructional error on the kill zone doctrine ("Claim VII"); and (8) cumulative error ("Claim VIII"). For the following reasons, the habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
In the early morning hours of March 6, 2004, two Norteno gang members were shot and killed while attempting to break into a liquor store. That night, their friends and associates held a candlelight memorial at the liquor store. After the memorial, the group gathered at a home on 45th Avenue. About 15 to 50 people were standing around outside the house, talking, smoking, and drinking. Most of them were Nortenos.
A car drove by the house, and someone in the car started shooting. Donald Monroe suffered three gunshot wounds to the back and died at the scene. Sarah Donaldson was shot in the elbow. Julie Gomez was shot in the leg and arm. Jose Perez was hit in the eyebrow.
A videotape someone took at the gathering was entered into evidence and played to the jury. Two separate volleys of gunfire can be heard on the tape. There were at least 12 gunshots in all. Donaldson thought she saw two cars driving bumper to bumper before she was shot, but she could not describe either car. Gomez saw only one car before she was shot, but could not describe it. Another person at the gathering, Shannon Perez, saw two cars and thought one of them was red. Her husband, Jose Perez, saw a red two-door hatchback that drove up to the house, stopped, and "unloaded." He saw a second car after that, but could not describe it. Juan Reyes, who lived across the street saw a red hatchback drive up and start shooting. He recognized the car as belonging to someone named, "Juan."
Juan 'Chilango" Carreon owned a red Isuzu Impulse in March 2004. It was a two-door hatchback. On March 6, 2004, Carreon was hanging out with defendant Prieto and other Sureno gang members in a parking lot on 43rd Avenue when Prieto got a telephone call, then asked to borrow Carreon's car. Prieto told Carreon he needed the car to pick up his girlfriend. Prieto left in the car. Carreon waited around an hour and a half in the parking lot, before leaving on foot to go to his girlfriend's house on 44th
Avenue. The next afternoon, he got his car back. One of the tires was flat, and everything was messed up on the inside. He called law enforcement because he was told the car had been involved in a shooting.
Forty-third Avenue was a hang out for Surenos. On March 6, 2004, Victor Gonzalez was also on 43rd Avenue with other Surenos. They were talking about Nortenos and Surenos. While they were there Jose "Tacca" Paredes shot up a car. [FN 3] The occupants of the car were Nortenos. Paredes fired about five or six shots at the car, then gave the gun to defendant Jose "Evelio" Gonzalez. After the shooting on 45th Avenue, defendant Gonzalez told Victor Gonzalez he shot Chapetes. Chapetes is a term for Nortenos.[FN 3] Paredes was charged for this crime, entered a plea, and was convicted of negligently discharging a firearm.
Two weapons of different calibers were involved in the 45th Avenue shooting. The shots that killed Monroe were from a 9 millimeter semiautomatic. All the 9 millimeter bullets recovered, including the bullets recovered from Monroe's body, were fired from the same weapon. Nine millimeter semiautomatic casings were found both at the scene on 45th Avenue and at 43rd Avenue. The 9 millimeter casing at the two locations were fired from the same weapon.
Detective Daniel Cabral interviewed defendant Prieto on March 12, 2004. Prieto's initial story was that he went home after he borrowed Carreon's car to go to his girlfriend's house. He originally denied any knowledge of the shootings at either 43rd or 45th Avenues. He also indicated he had been so intoxicated he did not remember much of anything. Although he initially denied knowing defendant Gonzalez, he eventually admitted he knew him and admitted he knew he was a Sureno.
Prieto admitted driving Carreon's red Isuzu Impulse to a location on 45th Avenue, where he knew Nortenos hung out. Defendant Gonzalez was in the front passenger seat, and Juan Borja was in the back seat. He saw people gathered in the street at 45th Avenue.
Someone in the car said, "There they are. There they are." He made a left-hand turn, and once he was near the crowd, defendant Gonzalez fired a gun. Prieto thought there had been approximately three shots fired in return, but never indicated he thought the Nortenos had fired first. Prieto at first told Detective Cabral that he was not sure if there was a gun in the car, but as they continued to talk, he admitted he had seen a gun.
Detective Cabral conducted an interview of defendant Gonzalez on March 23, 2004. Gonzalez admitted to Cabral that he had been on 43rd Avenue on the evening of March 6, 2004, and had seen the shooting there. He also admitted being a passenger in Carreon's red Isuzu with defendant Prieto. He admitted being the shooter who fired at the house on 45th Avenue. He fired the gun because he was trying to scare the people, and because they had called him a derogatory term for Surenos as he drove by. He never indicated he shot the gun because the people on 45th Avenue were shooting at him. He did, however, indicate he heard return fire after he fired.
Detective Ron Aurich, an expert on Hispanic gangs, testified that in his opinion, Prieto was an active participant in a Surenos gang. His opinion was based, in part, upon the fact that a Norteno shot off one of Prieto's fingers two years before the 45th Avenue shooting. Detective Aurich also testified that in his opinion Gonzalez was a member of the Surenos gang.
After Petitioner was convicted and sentenced, he filed an appeal to the California Court of Appeal. Among the arguments that Petitioner raised in his direct appeal were the issues that he raises in his federal habeas petition. The California Court of Appeal affirmed the judgment in December 2008. The California Supreme Court summarily denied the petition for review in March 2009.
In March 2010, Petitioner filed the instant federal habeas petition in the Southern District of California. The matter was subsequently transferred to the Eastern District. Respondent answered the federal habeas petition in September 2010. Petitioner filed a traverse in December 2010. In August 2011, this matter was transferred to the undersigned by Chief Judge Ishii.
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 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. 1994); 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).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents."). The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
V. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner argues that the jury instructions on aiding and abetting created a conclusive presumption that relieved the prosecution of its burden of proof. The last reasoned decision on this Claim was from the California Court of Appeal on direct appeal which stated the following:
Prieto cites two instructions given, one regarding aiding and abetting and one defining principals, and argues the use of the words, "equally guilty" constituted a conclusive presumption that violated his right of due process. The first instruction stated, in part that '[a] person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it." [FN 10] The second instruction stated in part that, "[e]ach principal, regardless of extent or manner of participation, is equally guilty." Prieto claims the jury may have understood this language as "an irrebuttable direction to find aider and abettor equally guilty as the personal perpetrator . . ." He claims the instructions violated his rights pursuant to In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375], which held that the due process clause of the Fourteenth Amendment protects the accused from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the charged crime.[FN 10] The full instructions on aiding and abetting were as follows: "A person may be guilty of a crime in two ways; One, he may have directly committed the crime, two, he may have aided and abetted someone else who committed the crime.
In these instructions I will call that other person the perpetrator. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it. Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime. To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: One, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime.
Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to, and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
If you conclude that the defendant was present at the scene of the accident or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abettor."
Prieto does not make clear precisely what facts he claims were not found true by the jury because the court directed it to presume such facts to be true. The federal appeals court cases he cites, i.e., Flowers v. Blackburn (5th Cir. 1986) 779 F.2d 1115, 1121; Robertson v. Cain (5th Cir. 2003) 324 F.3d 297, 303-304; and Laird v. Horn (3d Cir. 2005) 414 F.3d 419, 427, all relate to the intent to kill. Flowers v. Blackburn, supra, found the instructions given deficient because they allowed the jury to convict the defendant of first degree murder if either he or the perpetrator had the requisite intent to kill. (779 F.d at p. 1121.) Robertson v. Cain, supra, likewise held the instructions given relieved the state of the burden of proving the specific intent to kill. (324 F.3d at p. 303.) Also in Laird v. Horn, supra, the instructions failed to inform the jury that it must find the accomplice intended to kill the victim in order to return a first degree murder conviction. (414 F.3d at p. 427.)
The instructions given in this case could not reasonably have been interpreted to relieve the jury of finding the requisite mental state for a murder conviction. The jury was instructions that the guilt of an aider and abettor was equal to that of a perpetrator. This is a correct statement of the law. (People v. Prettyman, supra, 14 Cal.4th at p. 259.) However, the jury was also instructed that defendant could not be an aider and abettor unless he knew the perpetrator intended to commit the crime, and he intended to aid and abet the perpetrator in the commission of that crime. The jury was told that an aider and abettor must be one who "specifically intends to, and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
These instructions taken as a whole correctly instructed the jury that it was required to find the requisite intent for a murder conviction.
A challenge to a jury instruction solely as an error of state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id. at 72. Additionally, the instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See id. The court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See United States v. Frady, 456 U.S 152, 169 (1982). Furthermore, even if it is determined that the instruction violated the petitioner's right to due process, a petitioner can only obtain relief if the unconstitutional instruction had a substantial influence on the conviction and thereby resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), which is whether the error had substantial and injurious effect or influence in determining the jury's verdict. See, e.g., Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam).
Petitioner asserts that "the aider and abettor instructions of 'is equally guilty' as the perpetrator is a conclusive presumption that relieved the prosecution's burden of proof." (Pet'r's Pet. at p. 6.) Petitioner is not entitled to federal habeas relief on this Claim for the following reasons. The jury was specifically instructed that they could not convict the Petitioner unless his guilt was proven by the People beyond a reasonable doubt. (See Reporter's Tr. at p. 1619, 1627).
The jury was then instructed that a person is equally guilty of a crime whether he committed it personally or aided and abetted it. The trial court then immediately explained to the jury that to prove that the Petitioner is guilty of a crime based on aiding and abetting, the prosecutor had to prove that, "One, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime." (Id. at p. 1629.)
Petitioner fails to show any ambiguity or inconsistency in the jury instructions on aiding and abetting. See Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) ("the defendant must show both that the instruction was ambiguous and that there was a 'reasonable likelihood' that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt") (citations omitted). As described above, the jury was specifically instructed that the prosecution had to prove beyond a reasonable doubt the requisite elements of aiding and abetting. Petitioner failed to show that the California Court of Appeal's decision constituted an unreasonable application of clearly established federal law and/or that it resulted in a decision based on an unreasonable determination of the facts. The California Court of Appeal reviewed the instructions as a whole rather than in artificial isolation.
See Estelle, 502 U.S. at 72. Claim I should be denied.
In Claim II, Petitioner argues that the prosecutor committed misconduct during his closing argument when he improperly referred to a case as decided by the California Supreme Court when in actuality it was decided by the California Court of Appeal. More specifically, Petitioner asserts that the prosecutor "falsely elevated a Court of Appeal opinion to Authoritative California Supreme Court status." (Pet.'r's Pet. at p. 7.) Petitioner also argues that his trial counsel was ineffective for failing to object during the prosecutor's closing argument. The last reasoned decision on this Claim was from the California Court of Appeal on direct appeal which stated the following:
During closing argument, the prosecutor discussed foreseeability and argued that shootings were a natural and probable consequence of gang confrontations. He argued that Prieto would try to say he had not intended to kill anyone, and that he thought Gonzalez would shoot into the air or shoot to scare people. The prosecutor argued that if killing someone was a foreseeable or likely consequence of firing a gun, the law would hold an aider and abettor accountable under the theory of natural and probable consequences. Then, quoting extensively from People v. Montes (1999) 74 Cal.App.4th 1050 (Montes), he made the following argument:
"I want to read to you a small portion of a case.
This fact pattern doesn't apply in our case, but I want you to see how the law treats the idea of natural and probable consequences. And this is based on a fact situation that is somewhat similar, but not quite. What happens in this situation is a bunch of gang members that get together and they decide to go into a rival's turf to commit an actual fight -- to commit a fight. And at the end of that fight someone ends up dead. And this person -- this defendant was convicted of that homicide. And the Supreme Court of California says, under this day and age of gangs, that's foreseeable.
And here is the word of the Supreme Court. They first address a case called Butts. Butts is a case that occurred decades ago that said originally that you can't apply this theory. But this is the Supreme Court's comment on the foreseeability with regards to gangs. It says, 'Butts is also more than three decades old and represents a different social [era], when streetfighters commonly relied on fists alone to settle disputes.' That's the olden days. It would just be fights, no guns, no knives. 'Unfortunately, as this case illustrates' in reference to the Montez [sic] case, 'the nature of modern gang warfare is quite different. When rival gangs clash today verbal talking quickly give way to physical violence and gunfire. No one immersed in gang culture is [un]aware of this reality. And we see no reason the ...