The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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 October 21, 2008, of four counts of premeditated attempted murder (Cal. Penal Code §§ 187a, 664), and one count of shooting at an inhabited dwelling (Cal. Penal Code § 246). (See Petition at 2.) In a bifurcated proceeding, the jury determined that Petitioner had committed the offenses for the benefit of a criminal street gang. (Id.) The court also determined one firearm allegation to be true. (Id.) Petitioner was sentenced to serve an aggregate indeterminate term of 60 years to life in state prison. (Id.)
Petitioner filed a timely notice of appeal. On July 26, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Answer, Ex. A.) On August 2, 2010, Petitioner filed a petition for rehearing in the Fifth DCA. (LD*fn1 4.) The petition was summarily denied on August 3, 2010. (LD 5.) Petitioner then filed a petition for review in the California Supreme Court. (LD 6.) The petition was summarily denied on September 29, 2010. (LD 7.)
On August 4, 2011, Petitioner filed the instant federal habeas petition. He presents the following claims for relief: 1) He claims his constitutional rights under the Sixth and Fourteenth Amendments were violated when the trial court erroneously denied the defense Batson/Wheeler motion; and 2) He claims his constitutional rights under the Fifth and Fourteenth Amendments were violated when the prosecution produced insufficient evidence that Petitioner acted to benefit a criminal street gang under Cal. Penal Code § 186.22(b). On November 3, 2011, Respondent filed an answer to the petition. On February 10, 2012, Petitioner filed a traverse along with a motion for evidentiary hearing and expansion of the record. Respondent filed an opposition to the motion on February 22, 2012.
Petitioner and his co-defendant, Adan Castillo, who is also his brother, were charged with the same crimes and tried jointly. (CT*fn2 141-148.) On appeal, Petitioner and his brother raised the same claims, but in separate appeals. (LD 1; LD 8.) A formal statement of facts was not set forth by the appellate court in Petitioner's direct appeal; however, one was set forth in his co-defendant's appeal. This Court hereby adopts the factual summary as provided in the co-defendant's appeal:
Pauline Torres was waiting for friends outside an apartment complex in Porterville, when defendant and his brother, co-defendant David Martinez Castillo (collectively, defendants), drove up in a white Lincoln Town Car and accosted her. After Torres said no to their invitation to attend a party, defendants put their car in park and said, "We ain't scared."
Around this time, Torres's friends returned and started arguing with defendants. One of Torres's friends, David Garcia, was required to register as a northern gang member and another, Andrew Campos, was known to associate with northerners.FN3 During the argument, Campos called defendants "Scraps." This appeared to anger defendants, who peeled out in their car and said "Puro sur."
FN3. Witnesses referred interchangeably to northern and Norteno, and southern and Sureno; however, they primarily referred to these rival Hispanic gangs by their English names.
Less than two minutes later, defendants drove back to the apartment complex and one of them started shooting at the group standing in front. The shooter repeated "Puro sur" a number of times during the shooting. Bullets struck and injured Garcia, Campos, Campos's brother, Alexander Campos, and Campos's nephew, Aaron. A .22-caliber bullet went through the wall of the apartment building and was found inside a tenant's mattress.
A week after the shooting, Alexander Campos took his brother to a drug testing center. As he was backing out, he saw defendants in their car. They were laughing and one of them put his fingers in the shape of a gun and acted like he was going to shoot Alexander again. Alexander had his daughter, daughter-in-law, and grandchildren, who were in the car with him, duck down and pulled into a nearby police station, where he spoke with a detective.
After obtaining a search warrant, the police searched defendants' residence and a white vehicle at the residence. A blue bandana was found folded neatly on the front seat of the vehicle. The police also found a .22-caliber revolver in a storage shed behind the backyard. At that time, defendants were questioned by a police detective. After waiving their rights, defendant admitted that he associated with southern gang members and his brother admitted that he was an active southern gang member.
Detective Mark Knox testified as a gang expert for the prosecution during the jury trial of the substantive offenses and during the separate court trial of the gang enhancements. During the jury trial, Detective Knox testified, among other things, that "scrap" is a "derogatory term that northern gang members have created for a southern gang member." He explained the term is "insulting to a southern gang member" and opined that, if someone were to call a southern gang member a "scrap," the southerner would "probably fight for the southern gang."
When asked what shouting the words "Puro sur" might mean, Detective Knox testified: "Poros is a slang term that Hispanic gang members use, whether it be north or south, for Porterville, because it's P-O-R-O-S. Sur is the Spanish word for south, S-U-R." After the prosecutor clarified the first word was "puros" not "poros," Detective Knox testified: "I'm not sure what puro means, but maybe south side. But I know that sur is absolutely, positively south." When again questioned about the the significance of the words "Puro sur," Detective Knox responded: "I would say that it would be somebody representing the southern Hispanic gang culture."
During the court trial of the gang enhancements, Detective Knox opined that both defendants were members of the southern gang. His opinion was based, in part, on reports that defendants had identified themselves as southerners during previous jail bookings. After being presented with two hypothetical scenarios based on the facts of this case, Detective Knox opined the crimes would benefit the southern gang and the individual gang members who committed the crimes.
In the defense case, defendants and other witnesses testified that defendants were somewhere other than the Porterville apartment complex at the time of the shooting. (LD 9.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Tulare County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his 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 ...