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 April 14, 2008, of shooting at an inhabited dwelling (Cal. Penal Code § 246), committing assault with a semiautomatic firearm (Cal. Penal Code § 245(b)), personally using a handgun (Cal. Penal Code § 12022.5), carrying a loaded firearm (Cal. Penal Code § 12031(a)(1)), and carrying a concealed firearm in a vehicle (Cal. Penal Code § 12025(a)(1)). Petitioner was further found guilty of committing the offenses for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)). (CT*fn1 908-909, 930-931.) On October 21, 2008, Petitioner was sentenced to serve an indeterminate term of 15 years to life in state prison. (CT 908-909.)
Petitioner timely filed a notice of appeal. On January 14, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Resp't's Answer, Ex. A.) Petitioner then filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 4.) On May 12, 2010, the petition was summarily denied. (See Lodged Doc. No. 4.)
On May 16, 2011, Petitioner filed the instant federal habeas petition. He presents the following claims for relief: 1) He contends there was insufficient evidence to support the gang enhancement; 2) He alleges the trial court prejudicially erred in instructing the jury on the gang enhancement; and 3) He claims the trial court improperly increased his sentence from an otherwise determinate sentence to a life sentence based on a "wobbler" offense. On September 9, 2011, Respondent filed an answer to the petition. On January 24, 2012, Petitioner filed a traverse.
During the early morning hours of February 17, 2007, the residence of G.F. was shot in a drive-by shooting. A neighbor saw the vehicle involved in the shooting and called the police. A patrol officer in the vicinity heard shots, and shortly thereafter, learned details of the drive-by shooting from a police dispatcher. The officer soon saw a vehicle matching the description of the suspect vehicle-a white Ford Explorer-and started following it. The vehicle drove at a normal rate of speed and eventually pulled into a residential driveway.
Other officers arrived and the three occupants of the white Ford Explorer were ordered out of the vehicle. Appellant was the driver, M.D. was seated in the front passenger seat, and L.O. was seated in the back seat on the right side behind M.D. It was later learned that L.O. lived at the residence where the vehicle had stopped. Officers searched the vehicle and found two semiautomatic handguns in a compartment in the back part of the vehicle. One of the handguns was loaded. They also found three nine-millimeter Luger shell casings on the floor of the vehicle. Six such shell casings were found outside the residence involved in the drive-by shooting. Also found in the vehicle were a red and black beanie, a red bandana, two holsters, and a magazine for a gun.
An expert on gunshot residue testified regarding samples taken from the hands of appellant, L.O., and M.D. near the time of their arrest. The expert analyzed the samples and found that both appellant and L.O. had highly specific particles of gunshot residue on their hands. Based on the presence of these particles, the expert opined that appellant and L.O. either discharged firearms or they were in the environment of gunshot residue. No particles of gunshot residue, however, were found in the sample taken from M.D., the front seat passenger.
Earlier during the day before his house was shot in the drive-by shooting, G.F. got into a verbal confrontation with L.O. at their high school. According to G.F., L.O. made a derogatory comment about G.F.'s mother. The confrontation quickly ended as teachers came and separated G.F. and L.O. Later, L.O. walked by G.F. and said, "I'll see you tonight." A teacher that overheard L.O.'s remark testified that L.O. primarily associated with the Norteno gang, and that G.F. primarily associated with the rival Sureno gang.
G.F. testified that he had friends that were Surenos and that L.O. hung around with Nortenos. G.F. further testified that L.O. had harassed him in the past about hanging around with Surenos.
At the time of his arrest, appellant was wearing a red sweatshirt over a red shirt, and a red belt with the number "14" on the belt buckle, attire typical of members of the Norteno gang. Appellant also had typical Norteno gang tattoos, including a star on his elbow and four dots on his hand. When appellant was booked into jail, he filled out an inmate classification questionnaire, in which he responded that he associated with the "Northern" gang, and that his known enemy was "South[.]"
Visalia Police Officer Dominic Mena presented testimony to support his opinion that appellant and L.O. were both members of the Norteno (or northern) criminal street gang and that the crimes in this case were committed for the benefit of the gang.
Additional facts are set out in the discussion.
Appellant presented an alibi defense. According to the testimony of appellant and other witnesses, he was at a party at his wife's cousin's house when L.O. came and borrowed his white Ford Explorer. L.O. testified that he and two others (who he refused to identify) committed the drive-by shooting and admitted that G.F. was the intended target. He also claimed the two guns found in the vehicle belonged to him. After the shooting, L.O. called M.D. and arranged to meet appellant and M.D. at a location near the party. L.O. needed appellant to drive him home. L.O. left several items inside appellant's vehicle, including a red beanie, a red bandana, some shell casings, and a holster for a gun. He had intended to pick those things up when he went home.
Appellant claimed he had dropped out of the Norteno gang and that he got all his gang tattoos when he was 14 or 15 years old and had not gotten any tattoos since he was 15 years old. On the night of the shooting, he was wearing the red belt because it was a belt he had had for a long time. He wore his clothes over the belt so it would not be visible. He wore the red sweatshirt because the warehouse where he worked as a packer was cold, and he had just gotten off work before going to the party. (See Resp't's Answer, Ex. A.)
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 presented in the State court proceeding.
28 U.S.C. § 2254(d); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.
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, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § ...