The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Charles M. Bonneau, Jr., Esq.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Tulare, following his conviction by jury trial on December 17, 2007, of murder in the first degree (Cal. Penal Code § 187). (CT*fn1 1271.) Special allegations that Petitioner personally used a firearm (Cal. Penal Code § 12022.53(d)) and that Petitioner committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)) were found to be true. (CT 1271.) On April 2, 2008, Petitioner was sentenced to serve an aggregate indeterminate term of fifty years to life in state prison. (CT 1394, 1397.)
Petitioner filed a timely notice of appeal. On February 5, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 4.) Petitioner filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 5.) On April 14, 2010, the California Supreme Court summarily denied the petition. (See Lodged Doc. No. 6.)
On June 21, 2011, Petitioner filed the instant federal habeas petition, presenting the following three claims for relief: 1) "Petitioner was denied due process by the refusal of the request to bifurcate the gang allegations, because it resulted in the introduction of constitutionally irrelevant evidence in the guilt phase trial"; 2) "Petitioner was denied the right to equal protection by the use of a peremptory challenge to remove a Hispanic prospective juror for pretextual reason based on her opinion about the threat of gang violence"; and 3) "Petitioner was denied due process by a burden shifting instruction on mutual combat, eliminating the right to self defense in a case involving no prior agreement to fight." On September 26, 2011, Respondent filed an answer to the petition. On October 19, 2011, Petitioner filed a traverse.
[Petitioner] Daniel Thomas stands convicted, following a jury trial, of first degree murder in which he personally and intentionally discharged a firearm, causing death, and which was committed for the benefit of or in association with a criminal street gang. (Pen.Code,FN1 §§ 186.22, subd. (b)(1), 187, subd. (a), 12022.53, subd. (d).) FN2 His motion for a new trial was denied, and he was sentenced to a total unstayed term of 50 years to life in prison. He now appeals. For the reasons that follow, we will affirm.
FN1. All statutory references are to the Penal Code unless otherwise stated.
FN2. Ismael Sauceda was jointly charged with [Petitioner]. He subsequently entered into an agreement with the district attorney's office whereby, in return for his cooperation and testimony, the murder charge would be dismissed, he would plead guilty to being an accessory (§ 32) and admit the gang allegation (§ 186.22, subd. (b)), and he would receive a suspended five-year prison sentence.
The Shooting and Aftermath
Early on the morning of January 14, 2006, Joseph Acosta and his friend, Rick Campbell, drove to the Acapulco Club in Sultana. When they drove up in a black pickup, [Petitioner] and Ismael Sauceda were in the parking lot, talking to two females. It was about closing time. Acosta greeted Sauceda and [Petitioner], with whom he was acquainted.
No more than half an hour after Acosta and Campbell arrived, a group of four or five men walked out of the bar. They were inebriated and staggering. They were quiet, not laughing or talking to each other.
[Petitioner] approached Salvador Chavez, who was wearing a blue baseball hat and was the first to exit the bar, and asked in English if he was a "scrapa," a derogatory term for Sureno.FN3 Chavez responded in Spanish that he was nothing and did not want any problems. The other men with him also said they did not want any problems. They seemed scared. The confrontation began to move from the door to near Rick Campbell's truck, as one of the trucks belonging to Chavez and his group was there. [Petitioner] was insisting Chavez was a scrapa, and was using gang-affiliated words, such as "scrapa" and "Sureno" (the enemies of the Nortenos), to call Chavez out. Chavez walked around [Petitioner], and the men with him followed. They were trying to leave. The whole time they were walking, they were saying in Spanish that they did not want any problems. Chavez also said, in Spanish, that he did not "bang." Neither Chavez nor anyone in his group made any threats. When they walked around him, [Petitioner] got back in front of them. Sauceda went over as if to back up [Petitioner].FN4 Acosta told [Petitioner] to leave Chavez alone, and that the men did not want any problems. [Petitioner] said, "'Fuck that. This is Norte. Sulta," then pulled a gun from his waistband and shot Chavez three or four times. [Petitioner] and Chavez were face to face, about two feet apart. [Petitioner] was wearing a red beanie with an "N" on it. Based on Acosta's experience with Nortenos, this meant Norte and was something worn around Sultana to show one's colors. Chavez walked a couple of feet around a car that was in the lot, then fell to the ground. [Petitioner] and Sauceda fled.
FN3. Acosta had been a Norteno gang member since he was in junior high school, but had dropped out about two years before trial.
FN4. Acosta told Detective Fernandez after the incident that it was Sauceda who was making the comments to Chavez and his friends, yelling "Norte this, Norte that," but Acosta could not remember, as of trial, what Sauceda said. [Petitioner] was also making comments. Acosta also did not remember Chavez arguing back at [Petitioner] or any pushing, although he testified at the preliminary hearing that there was pushing and arguing before the gun was pulled.
Sauceda's version of events was somewhat different than Acosta's version. He and [Petitioner] had been friends since elementary school. They got together at some point on Friday, January 13, 2006. Late that evening, they met up with another friend, Ivan, and a 16-year-old whose name Sauceda could not recall and whom he did not know well, by Sauceda's house in Sultana. Their purpose that night was simply to be together and have a good time. They were not looking for trouble. They walked around for a while, then ended up by the Redwood Inn, where they ate some tacos. From there, they went to the Acapulco Club, a bar just up the street from the Redwood Inn. They did not go into the bar due to their age, but instead hung around outside the door, which was propped open. They could see inside and made eye contact with two women named Felisia and Rosalinda, who came outside and began talking with them.
The two women went back inside after about five minutes, drank some more beers, and danced. At some point, Ivan left to go home, and Acosta and Rick Campbell arrived. Felisia and Rosalinda came out and went back inside a couple more times.
At 2:00 a.m., people came out of the bar, as it was closing time. Sauceda, who was standing by a truck, got into an argument with a man who gave him a weird, "evil" look.FN5 Sauceda thought the man might be a Sureno, although he was not dressed like one. A Sureno would have known Sauceda was a Norteno by the way he was dressed that night. Sauceda began saying gang-related stuff. He did not recall whether he asked if the man was a scrapa, but he said something about Norte, and the man said some things back. The man said, in Spanish, that people from Sultana "ain't nothing." Sauceda thought they were going to fight, but the two women pulled him back.
FN5. Sauceda was not sure whether this man came out of the bar with the man who got shot. Felisia and Rosalinda were outside and near Sauceda at the time of the argument. Sauceda was not sure, but he believed the 16-year-old was also nearby.
Meanwhile, [Petitioner] was arguing with a group of at least five men by the entrance to the bar. Sauceda-who did not see what precipitated the argument-heard more than one voice yelling. He did not know whether one of the voices belonged to [Petitioner]; he did not hear [Petitioner] yell "Norte" or "Sulta Boys." The person [Petitioner] was arguing with was saying that he did not want any problems. Acosta started telling [Petitioner] to let it go, that the man was a "pisa"-someone from Mexico, most likely a farmworker-who did not "claim." Speaking both to [Petitioner] and to Sauceda, Acosta said it was not worth it. Sauceda did not see anyone with weapons, and no one charged at him with a baseball bat. Sauceda was not really watching [Petitioner]; instead, he was "in [his] own scene."
As the women were pulling Sauceda back, he heard gunshots. He ran home. [Petitioner] and the 16-year-old also ran. When Sauceda reached his house, he saw [Petitioner] standing by [Petitioner]'s car, which had been left earlier that evening across the street by Ivan's house. [Petitioner] asked if he could go inside with Sauceda. The 16-year-old also went inside with them. They went into Sauceda's room, where they stayed with the lights off. [Petitioner] told Sauceda not to turn on the lights. It was also Sauceda's idea to leave the lights off; there was a police helicopter, with its searchlight, overhead. [Petitioner] said he had messed up. He also said he was not feeling well, so Sauceda got him a drink of water. [Petitioner] lay down on a mattress on the floor. There was a little light from outside, and Sauceda saw [Petitioner] lift up the mattress. [Petitioner] appeared to put something underneath it, but Sauceda was not sure what was going on. Eventually, they all went to sleep.
A few hours later, when it was starting to get light out, there was knocking on the door.FN6 [Petitioner] said there were cops outside. He tried to hand Sauceda a beanie with a heavy object wrapped inside. From the weight, Sauceda assumed it was the gun. [Petitioner] told Sauceda to stash it, but Sauceda tossed it back to him. The police said they wanted to talk to Sauceda, so he went out to them. When they asked if there was anybody else in the house, Sauceda's mother said yes, and so [Petitioner] also came out.
FN6. The 16-year-old left sometime before this.
Tulare County Sheriff's Detective Fernandez interviewed Sauceda and [Petitioner] later that day. [Petitioner] denied being involved in any shooting. He said they heard the shooting when they were eating burritos at a taco truck at the Redwood Inn, so they took off running so they would not get hit. [Petitioner] denied being at the bar where the shooting occurred.
A search warrant was executed at Sauceda's apartment. Inside the bedroom used by Sauceda, officers found some gang paraphernalia. They also found a red beanie with a white N on it. Inside the beanie was a .25-caliber semiautomatic handgun with three live rounds in the magazine and a live round in the chamber. Subsequent tests showed the four spent shell casings found at the scene of the shooting were fired from that gun.
An autopsy showed that Salvador Chavez suffered four gunshot wounds, three to the left chest and one to the left index finger. The three chest wounds were all entrance wounds, and two produced through-and-through wounds to the heart. The cause of death was exsanguination due to multiple gunshot wounds to the chest, with Chavez bleeding to death within minutes. The bullets recovered from his body were consistent with having been fired from the gun found in the beanie in Sauceda's room. Chavez had a blood-alcohol level of 0.28 percent.
A bag containing live ammunition was found during execution of a search warrant on a trailer on the property of Hope Pizana, [Petitioner]'s grandmother, whose address [Petitioner] gave as his when he was booked. The information Fernandez had was that when [Petitioner] stayed with Pizana, he stayed in her house and not in the mobile home in back. Gang graffiti was found on various buildings on the property.
According to Sauceda, the Sulta Boys are just a group of friends from the same place. A Norteno is a gangster. The Sulta Boys have no connection with Nortenos, and are not a gang. They do not associate with other groups, but simply keep to themselves. They have no leader, and there is no special initiation to go through to become a Sulta Boy. There are perhaps seven or eight in the group; all are just people who live in the Sultana area. They hang around the neighborhood and talk, drink beer, and play basketball. Sauceda was not aware of the Sulta Boys committing any crimes. He never saw any of them with any kind of weapon.
Sauceda admitted telling Herman Martinez, an investigator for the district attorney's office, that Sulta Boys is a Norteno group and a subset of Nortenos. Basically everyone in Sultana who claims to be a gang member is Norteno. There are not a lot of Surenos in Sultana, and claiming to be Sureno in that area would not be a good idea. Sauceda considered himself a member of the Sulta Boys in January 2006; sometimes [Petitioner] was present when Sauceda hung out with the group. Sauceda did not recall whether [Petitioner] ever claimed to be a Sulta Boy or whether he ever claimed Norteno. Sauceda told Martinez, however, that [Petitioner] was a Sulta Boy, an associate just like Sauceda. [Petitioner] was wearing Sauceda's red beanie with the white N at the time of the shooting, because it was a cold night. The two had cut their hair so short that morning that they were almost bald, and when they got to the Acapulco, [Petitioner] said he was cold and asked for something to cover his head. Sauceda had the beanie in his pocket. The beanie-which was a Nebraska Cornhuskers hat that Sauceda had purchased at a sports store-was the only one Sauceda had. Sauceda liked the hat because of the N, which helped him identify as Norteno. He also had a burgundy beanie with a 49'ers emblem on it, which he was wearing that night along with a red jacket.
The search of Sauceda's residence following the shooting turned up his binder and what Sauceda termed gang-related graffiti, some of which was done by a friend. The binder had on it a Huelga bird, which to Sauceda meant Norte. It was a symbol the Nortenos used. In addition to the beanie [Petitioner] had worn, Sauceda had a belt buckle with N on it and some red shoe laces. He had the items because of his affinity toward Nortenos. Sauceda also knew that the number 14 had a special meaning for Nortenos, because N was the 14th letter of the alphabet. X4 stood for Nortenos. Nortenos do not like Surenos, who associate with the color blue and number 13. Sauceda's nickname was "Pee Wee"; [Petitioner]'s nickname was "Nappy." Sauceda was nicknamed "Pee Wee" when he was a baby.
Tulare County Sheriff's Detective Hamlin testified as an expert on gangs. According to Hamlin, the two dominant gangs in Tulare County are northern (Norteno) criminal street gangs and southern (Sureno) criminal street gangs. The two are rivals.
Nuestra Familia is the primary northern gang in the California prison system; they are the shot callers for all northern gangs in California. People getting out of prison and returning to their communities will often bring orders from the shot callers in Nuestra Familia to the streets. Those getting out of jail, who have had to adhere to rules set forth by Nuestra Familia while in custody, will take the rules back to the streets. For instance, if there is someone they no longer want in their gang, they have to go through the chain of command to a shot caller to receive an okay to assault or kill the gang member. Also, if there are drug ties in a certain area, that money can be filtered back into the shot callers in prison.
Hamlin had heard of Sulta Boys, which, from his experience, was a northern gang that claimed the community of Sultana as its turf. Hamlin had talked to approximately five members of Sulta Boys, had read police reports involving and talked to other police officers concerning the group, and had seen graffiti associated with it, primarily in Sultana.
Nuestra Familia, Norteno, and Sulta Boys are all basically under the same umbrella. They all have alliance to the north. When street cliques such as Sulta Boys go into the prison system, the cliques no longer exist. They are now considered under the Norteno umbrella. Nuestra Familia is the top level. The Nortenos fall under that. They are not necessarily members of Nuestra Familia, but they are run by Nuestra Familia. Nortenos are essentially the general gang. Then there are the subcliques like Sulta Boys, Brown Pride Catella, North Side Dina, and other local community Norteno gangs. Within the Nortenos there are different levels of gang membership. The criminal street gangs often will have a shot caller-frequently someone who is older than the rest or has committed more violent crimes or a lot of crimes for the gang-and underneath that level is the general membership. These members sometimes refer to themselves as soldiers, as they are willing to go out and do work for the gang. Underneath that level are the associates who just hang out with the gang, but are not around when the crimes are committed. If someone wants to move up in the gang, he needs to be willing to commit crimes and do work for the gang-crimes of opportunity or against a rival gang-to gain notoriety for the gang and the gang member himself. Such crimes help the gang by what gang members believe is a type of respect, but it is actually fear instilled in the public or in rival gangs. That benefits the gang because people do not want to come forward or testify about gang crimes, and it keeps rival gang members out of the gang's area. However, someone does not necessarily have to commit crimes to become a member of a gang. Some people have said they are considered a member just by growing up in a certain area or having an older family member in a gang. "Jumping in"-being beaten by gang members for a certain length of time-used to be a common way of becoming a gang member in Tulare County. As gang crimes have carried stiffer penalties, however, gangs have had a harder time finding members. Now, many gangs allow people to become members by hanging around long enough or by committing a crime to show they are "down" for the gang.
To the extent it has any organizational structure, Sulta Boys is a very loose organization. This is typical of Tulare County street gangs, which might have one person who is considered a shot caller and the rest falling underneath him, or which may not have anybody who is a shot caller per se. To Hamlin's knowledge, Sulta Boys do not have any shot caller. They are, however, a northern-affiliated gang that has been in the area since the late 1990's. From past contacts, Hamlin estimated that 25 to 40 people are in Sulta Boys.
Nortenos associate with the color red and number 14, for the letter N, which is the 14th letter of the alphabet and is related to Nuestra Familia. Roman numeral 14, X4, and four dots are also associated with the group. Surenos associate with the color blue and number 13, for the letter M, which is the 13th letter of the alphabet and is related to Le Eme. That is the prison gang for all Southerners.
Hamlin estimated that there are approximately 2,500 northern gang members in Tulare County. He personally investigated one crime in which Sulta Boys members were involved. He had investigated 300 to 400 in which Nortenos were involved. Norteno gangs primarily commit crimes of assault on all different levels, including simple battery, assaults with deadly weapons, shooting at inhabited dwellings, attempted murder, and murder. He was familiar with a shooting that took place in Sultana on February 13, 2004. In that case, the suspects confronted the victim, whom they believed to be a southern gang member. The suspects yelled out derogatory terms for Southerners, then shot at the victim with a shotgun and struck him in the face. Juan (Johnny) Alvarez was convicted of assault with a deadly weapon as a result of the shooting. As far as Hamlin knew, Alvarez belonged to Sulta Boys. However, Hamlin did not locate any connection between him and [Petitioner].
Hamlin was also familiar with two shootings that took place in Cutler and Orosi on May 22, 2004. In the first shooting, the suspect fired at a residence when there were people inside. One of the family members who lived there was believed to be a southern gang member. In the other shooting, the victim, who was in a wheelchair, was wearing blue clothing and had a blue bandanna tied to his wheelchair. He was a member of OGS (Original Gangster Surenos), who claim Orosi as their turf. The suspect shot him. Daniel Mendoza was convicted of assault with a deadly weapon as a result of the shootings. Mendoza was a member of the northern gang Brown Pride Catella, which was out of Cutler-Orosi. Hamlin did not find any connection between him and [Petitioner].
Hamlin spoke to other officers about [Petitioner], read all of the reports in this case, and researched [Petitioner]'s one prior contact with law enforcement. He also interviewed [Petitioner] himself, just after Fernandez and other detectives interviewed [Petitioner] in connection with this case. In that interview, [Petitioner] related that he was 18 years old, and that he was born and raised in Sultana. Although he moved from town to town, he considered himself as having lived there basically his entire life. He hung out with the guys who lived in Sultana. He was born into being a Northerner. It was just something he was born into. He hung out with "[a]ll the home boys" from Sultana, but not with anybody else from other cities. He had no problem with Northerners from other cities, however. Sulta Boys were just neighborhood kids, but a person had to be born and raised in Sultana to belong. People who moved to Sultana were not allowed to be in the Sulta Boys. [Petitioner] did not know how many individuals were in Sulta Boys, but believed there were "a good few," but less than 25. They all "back[ed] up Norte ." [Petitioner] admitted having "only God can judge me" tattooed on one hand, a cross on his arm, and "Sultana" on his other arm. Although Hamlin found no tattoos of a 14, X4, four dots, or anything that said "Norteno" or "Norte," he considered the "Sultana" tattoo to be gang-related because, while it is uncommon for people to get the name of a neighborhood tattooed on their bodies, it is very common with gang members. [Petitioner] had been booked into jail for driving under the influence when he was 18, and he told them he was a Northerner to make sure they did not put him in with Southerners.
Hamlin examined the notebook that was seized from Sauceda's residence. There were several items of gang-related writing, such as "Sulta," references to northern gangs, and monikers. One of the drawings contained 93666-the zip code for Sultana-with the three crossed out. This is often done by northern gang members to disrespect the number three because of its connection to southern gang members. Threes and S's are often crossed out. "Sulta Boys" was written in the notebook, and there was a drawing of a Huelga bird. A Huelga bird-the symbol of the United Farm Workers-is associated with Northerners. Among other items in the binder was a list of monikers, including "Nappy." The list was something Sulta Boys would write as a type of roll call. With respect to the red hat with the letter N, wearing it would show everyone else in the gang culture "who you back-up. What you're down for." The red belt, belt buckle with the letter N, and red shoe laces found at Sauceda's residence were all northern gang-associated attire.)!
Hamlin also examined photographs taken of the graffiti on the sheds and other buildings on Hope Pizana's property. The graffiti included a Huelga bird, above which was spray-painted "Danny." There were also other northern references, including derogatory terms for southerners and obscenities directed at them. There were names that may have been monikers; X4, which is a way of writing the number 14; and the number 559, which is the area code they claim as their turf. With respect to the contents of one of the rooms inside the mobile home on the property, Hamlin was struck by the absence of the color blue. There was a black tennis shoe with a red sole and red accent on the side, which would be common attire for a Norteno. The words "Sultana" and "Sulta," sometimes with the S crossed out, were written at several places.
Based on all of the information available to him, including his interview with [Petitioner], Hamlin opined that [Petitioner] was a northern gang member of the Sulta Boys subclique. The key factors were [Petitioner]'s knowledge of the Sulta Boys and admission of being a Northerner in the interview; the attire he was wearing when the crime was committed, specifically the amount of red; the comments made back and forth between him and the victim; and the graffiti located at his residence. Hamlin further opined that the shooting of Salvador Chavez would benefit and was in association with northern criminal street gangs. The crime was committed in a public area in the presence of a number of people. The words that were exchanged showed the gang affiliation, and the crime showed that [Petitioner] was willing to do work for the gang, and was not afraid to commit such a crime in such a public area. This would benefit his status within the gang, showing them he was willing to do work and giving him notoriety and status. It would also benefit the gang in that the victim was perceived to be possibly a rival southern gang member who was making derogatory remarks toward Northerners. It showed that northern gangs are to be feared and that Sultana is northern territory. Northerners would see it as gaining respect; it would instill fear in the public and in rival gang members.
The Shooting and Aftermath
On the night of the shooting, Felisia Perez and Rosalinda Garcia were at the Acapulco Bar. They arrived about an hour and a half before closing time. Sauceda, whom they knew, was there. He was standing outside of the bar, by the door. With him was [Petitioner], whom the women had not met before that evening.
Perez greeted Sauceda and went inside the bar to meet her boyfriend. Garcia initially went inside, but was in and out, talking with [Petitioner] and Sauceda by the door. Inside the bar, in addition to Perez, her boyfriend, and the bar's staff, were four or five unknown Mexican males. Near closing time, Perez came back outside and joined Garcia, Sauceda, and [Petitioner], who were by a vehicle near the front door. Among the other vehicles in the lot was a black truck, in which some men had arrived about an hour after the women. Perez never saw the men go inside the bar.
When the bar was closing and people were coming out, Perez and Garcia were already outside, talking with Sauceda and [Petitioner]. According to Perez, an argument started between [Petitioner], Sauceda, and the four or five Mexican men who had been inside the bar. Those men, who appeared to be intoxicated, came outside and were "starting stuff." Chavez walked out of the bar and started pushing [Petitioner] for no reason.FN7 An argument started. Perez heard some of it. It was about the colors red and blue, which she knew were gang colors. The Mexican men were saying they liked blue, and then [Petitioner] and Sauceda argued back. [Petitioner] used the term "Norte" and told Chavez he was a Norteno. FN8 Chavez, who was speaking Spanish, said "'Sur trece'" and started pushing [Petitioner]. Chavez's companions were right behind him, and Perez, Garcia, Sauceda, and [Petitioner] were surrounded by them.
FN7. Perez did not know Chavez, but identified the man who was pushing [Petitioner] as the person who ultimately was shot. She previously told the district attorney's investigator that she did not remember who started the argument, but that it could have been Sauceda and [Petitioner]. She was somewhat intoxicated that night and had trouble remembering.
FN8. Perez previously told the defense investigator that [Petitioner] had a red handkerchief half in and half out of his back pocket.
The group of men were associated with a white Mustang and a green truck. At one point, one of the group went to the green truck and grabbed a metal baseball bat, saying he was going to "fuck [Sauceda] up." He then walked toward Perez and Sauceda and swung the bat one time. Sauceda ducked and pushed Perez, then the man stood in front of Sauceda, holding the bat down with both hands. FN9 He and ...