The opinion of the court was delivered by: Peter C. LewisU.S. Magistrate Judge United States District Court
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Michael Palma, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (Pet.) pursuant to 28 U.S.C. § 2254, challenging his convictions in San Diego County Superior Court case number SCD209562 for three counts of assault with a semi-automatic firearm, one count of assault by means likely to produce great bodily injury, and various gang allegations. (Pet. at 6-37*fn1 , ECF No. 1; Lodgment No. 1, vol. 2 at 0277-80.) Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties have consented to Magistrate Judge jurisdiction in this case. (See ECF No. 7.) For the reasons set forth below, the Court DENIES the Petition.
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following statement of facts is taken from the California Court of Appeal's opinion denying Palma's direct appeal of his convictions.
On September 2, 2007, Palma and several others, including at least one female, walked by Gabriel Ruiz Martinez's house in East San Diego (Martinez house) [referred to as "group A"]. Palma at the time was a documented member of the FMK criminal street gang. The Martinez house is located in territory that was claimed by FMK. Martinez's cousins, Anthony Nevarez (Anthony) and Jesus Nevarez (Jesus), were seated on the front steps of the house with their uncle, Ulysses Figueroa. Francisco Estrada was in front of the house sitting on the tailgate of his truck [referred to as "group B"].
There are divergent accounts of what happened between group A and either Anthony or Jesus, but fighting words were exchanged. A short time later, Palma and between 15 and 30 individuals [referred to as "group C"] approached the Martinez house in order to engage the occupants in a fight. Several of the members of group C carried weapons, including rocks, sticks, a baseball bat, a metal pole and hammer. Palma challenged Jesus to a one-on-one fist fight. Someone from group C yelled "FM" or "FMK." Someone else from group C asked words to the effect "where you from" and stated something about crossing out FMK graffiti.
At some point, Anthony ran inside and asked Martinez to come outside; Martinez did so. Once Anthony returned outside, a female from group C approached him and accused Anthony of "messing" with her nephew. The female started to slap Anthony. He defended himself by pushing her away. Group C, including Palma, then attacked group B. During the fight, Jorge Luis Guerrero, another documented FMK gang member, emerged from a nearby alley and yelled something about "messing with his homeys." Guerrero drew a handgun, fired at members of group B, and injured four people: Jesus, Anthony, Martinez and a neighbor of Martinez, Jonathan Arreguin. (Lodgment No. 6 at 3-4.)
III. PROCEDURAL BACKGROUND
On August 4, 2008, the San Diego County District Attorney filed an amended information charging Michael Palma with three counts of assault with a deadly weapon, a violation of California Penal Code (Penal Code) § 245(b) (counts one through three), and one count of assault by means likely to create great bodily injury, a violation of Penal Code § 245(a)(1) (count four). (Lodgment No. 1, vol. 1 at 0005-07.) As to each count, the amended information alleged the crime was committed for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal activity by gang members, within the meaning of Penal Code § 186.22(b)(1). (Id.)
On August 15, 2009, a jury convicted Palma of all charges and found all the gang allegations to be true. (Lodgment No. 1, vol. 2 at 0277-80.) He was sentenced to eleven years in state prison. (Id. at 0282.)
Palma appealed his conviction to the California Court of Appeal for the Fourth Appellate District, Division One. (Lodgment Nos. 3-5.) The state appellate court affirmed his conviction in a written opinion filed March 23, 2010. (Lodgment No. 6.) Palma then filed a Petition for Review in the California Supreme Court. (Lodgment No. 7.) The California Supreme Court denied the petition "without prejudice to any relief to which defendant might be entitled after this court decides People v. Durango, S176886, People v. Gutierrez, S176620, People v. Lopez, S177046, and/or People v. Rutterschmidt, S176213." (Lodgment No. 8.)*fn2
Palma filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on July 22, 2011. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and Authorities in Support of the Answer on October 17, 2011. (ECF No. 8.) Palma filed a Traverse on November 4, 2011. (ECF No. 10.)
This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877(9th Cir. 2004).
A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.
Palma presents four claims in his petition. First, Palma contends he was denied his federal due process rights when the trial court refused to bifurcate the substantive criminal charges from the gang allegations. (Pet. at 6-14, ECF No. 1; Traverse at 8-11, ECF No. 10.) Second, Palma argues the gang expert improperly testified as to Palma's subjective knowledge and intent. (Pet. at 15-20, ECF No. 1; Traverse at 11-12, ECF No. 10.) Third, Palma alleges his Sixth Amendment Confrontation Clause rights were violated by the gang expert's use of hearsay. (Pet. at 21-29, ECF No.1; Traverse at 12-14, ECF No. 10.) Finally, Palma contends the prosecutor improperly commented on his failure to testify, in violation of his Fifth Amendment rights, as delineated in Griffin v. California, 380 U.S. 609 (1965). (Pet. at 30-37, ECF No.1; Traverse at 14-15, ECF No. 10.) As to each of these claims, Respondent contends the state court's adjudication was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 7-24, ECF No. 8.) As to claims one, two and three, Respondent also contends Palma has failed to state a federal question. (Id.)
1. Bifurcation of Gang Enhancements From the Substantive Charges
Palma contends the trial judge violated his federal due process right to a fair trial when he refused to bifurcate the gang allegations from the substantive criminal charges. (Pet. at 6-14, ECF No. 1; Traverse at 8-11, ECF No. 10.) Palma argues this unfairly prejudiced him in front of the jury because its purpose was to show he had a criminal disposition and acted in accordance with that disposition by committing the substantive criminal offenses. (Pet. at 8-14, ECF No. 1.) Respondent first argues Palma is not entitled to relief because his claim involves only the application of state evidentiary law, which is not cognizable on federal habeas review. (Mem. of P. & A. Supp. Answer at 7, ECF No. 8.) In the alternative, Respondent argues the state court's resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Id. at 7-19.)
Palma raised this claim in the Petition for Review he filed in the California Supreme Court. (See Lodgment No.7.) As noted about, the California Supreme Court summarily denied the petition without prejudice to any relief Palma may be entitled to once People v. Dungo, People v. Gutierrez, People v. Lopez, and People v. Rutterschmidt are decided. Accordingly, this Court must "look through" to the state appellate court's decision denying the claim as the basis for its opinion. Ylst, 501 U.S. at 805-06. The state appellate court wrote:
[W]hen a trial court properly denies a motion to bifurcate [under California law], if the failure to bifurcate actually results in gross unfairness so as to deprive the defendant of a fair trial or due process of law, then reversal is required. (People v. Johnson (1988) 47 Cal.4th 743, 752-754; see also People v. Arias (1996) 13 Cal.4th 92, 127 (Arias) [reconfirming the rule in People v. Johnson, supra, 47 Cal.3d at p. 590].) Palma contends he suffered such gross unfairness. We disagree.
To determine whether gross unfairness has occurred, we examine four factors:
(1) the cross-admissibility of the evidence in bifurcated trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of the some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza).)
The first factor is whether gang evidence was cross-admissible. As discussed ante, the circumstances of the fight and eventual shooting involved facts relating to the activity and mentality of criminal street gangs. This same activity and mentality was conjoined with Palma's motive and intent.
For example, the prosecutor asked Detective John Harberth, the People's gang expert, about one of the phrases someone shouted during the fight "where you from?" Harberth explained: "In a gang case, whenever someone asks where are you from, it's usually a precursor to violence . . . [b]ecause there is no right answer to that question." This question simultaneously proves the gang enhancement and shows that Palma, a gang member, was at the residence with the knowledge and intent that violence might ensue. Thus, even in a bifurcated trial, a significant amount of gang evidence would have been cross-admissible.
The only evidence that would have been exclusive to the gang allegation was proof of predicate gang acts. [footnote omitted.] The predicate gang acts included an assault, a robbery, a felon carrying a firearm and a stabbing. These are all crimes of a less-serious nature than the crime for which Palma was eventually convicted. Although Harberth also noted the FMK street gang had been involved in an attempted homicide as well as a kidnapping, those predicate acts were not offered to prove the gang enhancement, and thus the inflammatory nature of those crimes were kept from the jury. We conclude that even if predicate acts evidence was prejudicial to Palma, it was also highly probative and withstands an Evidence Code 352 analysis.
The second Mendoza factor - the risk joined allegations will unfairly inflame the jury - was also not present. Palma was charged with four counts of assault under section 245. [footnote omitted.] Because all of the charges were similar and were more serious than the predicate acts used to prove the ...