FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2006 judgment of conviction entered against him in the San Joaquin County Superior Court on charges of first degree murder, with the special circumstance that petitioner was a member of a criminal street gang; assault with a firearm; negligent discharge of a firearm; conspiracy to commit murder; and participation in a criminal street gang. Petitioner seeks relief on the grounds that: (1) his statements to police should not have been admitted into evidence at his trial because they were involuntary and coerced by a promise of leniency; (2) the trial court violated his right to due process by denying his request to replace a juror who committed misconduct; (3) the trial court violated his right to due process by admitting into evidence information pertaining to a prior juvenile adjudication; (4) the trial court violated his federal constitutional rights by enhancing his sentence based on a prior "strike" conviction; (5) the trial court violated his right to due process by enhancing his sentence based on his prior juvenile record; and (6) his sentence violates his Sixth Amendment right to have all essential facts determined by a jury beyond a reasonable doubt. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn1
After a jury trial, defendant Sanbeira Thlang was found guilty of first degree murder (Pen.Code, §§ 187, 189)*fn2 and several lesser or related offenses to the murder, as to which sentencing was stayed under section 654. The jury also found true a special circumstances allegation that the murder was committed while actively participating in a criminal street gang (§ 190.2, subd.
(a)(22)) and enhancement allegations that the death was caused by intentional discharge of a firearm (§ 12022.53, subds.(d), (e)(1)), that defendant had a prior serious felony conviction (§ 1170.12), and, as to the stayed offenses, that they were violent felonies committed to benefit a criminal street gang (§ 186.22, subd.
(b)(1)(C)). Sentenced to state prison for life without parole and a consecutive term of 50 years to life, defendant appeals. Defendant contends that the trial court erred in: (1) admitting (a) evidence of a confession and (b) details of conduct underlying his prior conviction; (2) failing to remove a juror from the jury for misconduct; (3) failing to strike the prior serious felony conviction allegation; (4) imposing upper terms on some sentences, stayed under section 654; and (5) doubling certain enhancement terms as a result of the prior serious felony conviction. Only the last contention has merit. We shall modify the judgment regarding the sentence of doubled enhancement terms and affirm it as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
A little after midnight on the morning of February 21, 2005, Fortune Johnson, age 55, living near Astor Drive in North Stockton, decided to walk to the store. On the way, he saw Nath Sok, age 21, to whom he had been introduced a day or so before, come up behind him riding a bicycle. A Chevrolet Astro van, followed in tandem by a Camaro, drove past Johnson and Sok and then, together, the vehicles made a U-turn. Johnson had seen the same vehicles a half hour to an hour earlier going really fast around the block, when he was sitting out in front of his home. Uneasy, he began to walk faster. Sok had stopped about 50 feet behind Johnson.
Johnson witnessed the driver of the van hail Sok and speak to him in a calm voice. He also saw a number of Asian males get out of the van and the car. Sok stopped and responded boisterously. As soon as he did so, there was a fusillade of large-caliber gunshots and Sok was blasted back from his bike. Johnson took cover behind a car and, after a terrifying interval, the males calmly got back in the vehicles and "just cruised on away slowly on down the street."
About a half hour past midnight, officers of the Stockton Police Department responded to a report of the shooting. When they arrived they found Sok lying dead on the lawn, next to the bicycle. He had been shot three times in the head and neck, and once in the penis. Five .40-caliber shell casings were in the middle of the street and one was next to the bike.
Sok had been documented as a member of the Loc Town Crips (LTC) gang and an associate of the Asian Street Walkers (ASW), another Stockton gang. The Astor Drive area is part of the territory claimed by the ASW gang. Tiny Rascal Gang (TRG) is a rival of LTC and ASW and a logical suspect for inter-gang violence. Defendant had been documented as a member of TRG by his own admission on February 5, 2005. In 2002 he had admitted a charge of assault with a firearm in a juvenile adjudication arising out of a TRG gang-related shooting where some of the assailants yelled "TRG" at the people who were shot. The police investigation led to a silver van and a green Camaro on Wednesday, February 23, 2005, at the residence of reputed TRG associates. When the Camaro was driven away from the residence, officers stopped the car and interrogated the occupants, including S.C. Inside the car were a grey bandana, TRG's gang color, some compact discs marked TRG, and a disposable camera. Film from the camera yielded photos of groups of TRG gang members, including defendant, displaying TRG gang signs. Songs on the compact discs extol TRG gang activities, including drive-by and walk-up shootings of opposing gang's members, e.g., by "creepin' up," driving into other gang's territory at night to catch enemies off guard.
On March 1, 2005, Stockton police detectives went to Seattle, Washington, where the Seattle Police Department had defendant in custody. After giving a Miranda*fn3 warning they interrogated him. They explained to defendant that there had been an "incident" down in Stockton and they wanted to hear his side of the story. He denied gang affiliation. They said they were investigating a shooting on the 20th or 21st of February: "You know our, our belief is that out of everybody there you were probably the, the least involved and I don't want to put any words in your mouth. I got half of the story so I don't want to say you know man I could make up a lot of things. You could be the guy that planned this whole thing and sent everybody out here to go look for enemies or you could just be the guy that was in the car and you don't know what the hell's going on and somebody starts shooting. I don't know exactly, I got my own thoughts, my partner has his own thoughts about, about what happened but the only guy that can tell that other side of the story about what you did is you." The detectives told defendant they had already talked to everyone else and asked him to identify several pictures of persons involved in the shooting incident.
Defendant said he had argued with several of these people on a Sunday. They were TRG wannabes who tried to involve him in gang activity, but he told them he was out of TRG and wanted no part of it. "I don't know they prob ... they said he looking for enemies you know what I mean. Probably jump an enemy you know what I mean. Beat up an enemy shoot an enemy I don't know you know what I'm saying so I told them I'm cool, I'm straight." He told them he had already done four years "in some stupid[-]ass shit." He knew nothing about any shooting.
The detectives implied they had witnesses stating he was involved. Defendant vigorously maintained he would not be swayed: "I'm going to go with my story."
Defendant then continued: "Like the last time[,] you know what I mean[,] the last time I seen them was the Sunday we had a little bit of argument that was it. I don't know you know what I'm saying if they trying to bring me up in the mix too with (unintelligible) . . . and all that you know what I'm saying. I told them, I'm out of the game already, you know what I'm saying. I'm not doing no mother fucking, no more mother fucking 25 to life for these mother fuckers."
He rejected, over a protracted period, a series of gambits designed to persuade him to admit he was present at the shooting.
Then, as the detectives were winding up the interview, in the process of leaving, defendant asked to speak to Detective Youn Seraypheap, the officer of Cambodian ethnicity, alone. Detective Seraypheap agreed. The following comments by Detective Seraypheap ensued: "I'm telling you thing is . . . listen, listen I don't think you were the shooter to be honest with you. I'm, I'm being honest. I don't think you were the shooter okay. I think you were just sitting in the Camaro and other people shot and you said oh fuck take me home okay after it happened. But it's going to hurt you because you're sitting here saying that you weren't in [the] Camaro you understand that. That's all I'm telling you. That's all I'm trying to get out of you is that you know what I'd rather have you okay tell me the truth. Be a witness rather than be a suspect in this thing you understand that. [¶] . . . [¶] "[I] mean I, I, I swear it on my two kids. [¶] . . . [¶] Okay, the thing is it doesn't matter, it is matter you know at this point it doesn't matter what you think or what you say it's what other people say you understand that. [¶] . . . [¶] "The thing is um, you know I, I don't want to see you go to prison man I'm not lying to you. You know I didn't fly all over here for nothing. The thing is that you know I know, I know I'm not. I know for a long time since he was a kid. I know (unintelligible) . . . when he got shot you know I was there. I know his dad, I've known him for twenty years okay. I talk to (unintelligible) . . . dad before I came out here and I know everything (unintelligible) . . . not at first to lie to me that he wasn't there in Stockton (unintelligible) . . . I told him (unintelligible) . . . give me a little respect because I know, I do my homework before I come (unintelligible). I been working on this case since it happened and I truly, truly think you weren't the shooter okay. I know exactly who shot alright [ sic ] but I, I, I can't do anything for you when you're sitting here telling to me I wasn't in the Camaro when in fact everybody knows you were[,] you understand that. I truly don't think you were the shooter and I want you, I'd rather use you as a witness than, than, than a suspect you know what I mean. I mean you can argue with me all you want you can . . . ." Thereafter, following additional conversation, defendant admitted he was sitting in the Camaro when the shooting happened and he identified the other occupants of the vehicles. He maintained that he had no idea that the shooting was likely to occur.
S.C., age 13 at the time of the shooting, testified as follows: He was seated behind defendant in the Camaro, on the passenger side.
He got out of the car and shot the victim, Sok. When he returned to the car he handed the weapon back to defendant, who placed it under his seat. Before the vehicles commenced the fatal journey, he and the others had discussed looking for an enemy "slippin'," i.e., leaving himself vulnerable to attack.
Two other occupants of the vehicles discharged firearms during the incident.
Reachhetra Pheng, a co-defendant, testified, in part, as follows: On the night of the shooting, he was partying in a garage with defendant and two others. Three other males showed up; someone said, "let's roll" and everybody left. Pheng was the last one to walk out; the Camaro was full, so he got in the van. The van took the lead, the Camaro followed. When they "busted a U" and "rolled up" on Sok, he heard gunshots, thought they were being shot at, and ducked for cover in the back seat.
Resp.'s Lodg. Doc. B (hereinafter Opinion), at 1-8.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010))
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn4
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is ...