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Jason Edward Hodge v. Domingo Uribe

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 10, 2012

JASON EDWARD HODGE,
PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. King, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on March 9, 2012. Respondent filed an Answer on May 7, 2012. Petitioner filed a Reply on June 14, 2012, accompanied by a supporting Memorandum ("Reply Mem.").

BACKGROUND

A jury found Petitioner and Omar Beckett guilty of assault by means of force likely to produce great bodily injury on Marcus Jenkins (Reporter's Transcript ["R.T."] 968; Clerk's Transcript ["C.T."] 185, 196-98). The jury also found to be true the allegations that:

(1) Petitioner and Beckett personally inflicted great bodily injury on Jenkins within the meaning of California Penal Code section 12022.7(a); and (2) Petitioner and Beckett committed the assault for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist criminal conduct by gang members within the meaning of California Penal Code section 186.22(b)(1) (R.T. 968, 1211-13; C.T. 198). Petitioner admitted having suffered a prior conviction qualifying as a strike within the meaning of California's Three Strikes law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (R.T. 1511; 233-34; C.T. 233-34).*fn1

The sentencing court imposed the high term of four years, doubled pursuant to the Three Strikes Law,*fn2 and added a three year enhancement pursuant to California Penal Code section 12022.7(a), for a total term of eleven years (R.T. 2170-71; C.T. 306-08). The court stayed the gang enhancement (R.T. 2174; C.T. 307).

The Court of Appeal affirmed the judgment (Respondent's Lodgment 9; see People v. Beckett, 2010 WL 4354215 (Cal. App. Nov. 4, 2010)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 12).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Beckett, 2010 WL 4354215 (Cal. App. Nov. 4, 2010). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

Jenkins testified that on June 2, 2008, he was at his late grandfather's house located on West 55th Street with his blue Ford Ranger truck with a camper shell, parked on the street next to the driveway. Jenkins was in the backyard when he saw Beckett sitting on his truck and Hodge standing nearby. Two young women were sitting on the curb behind the truck, and Beckett was talking to them. When Jenkins "hollered out" to get off his truck, Beckett jumped off, made a peace sign with his fingers, and said, "I apologize. I didn't mean to be sitting on your truck like that."

Jenkins then heard Beckett say to Hodge, "Man, I know you didn't write on that man's truck like that." Jenkins became angry and shouted profanities as he came down the driveway toward the two men. Jenkins aggressively approached Hodge, and said, "I know, goddamn it, that you did not write no shit on my damn truck." Jenkins saw something written in the dust on the window, including the number "50" or "55" - he was not sure. Jenkins could not remember what the message in the writing was, but remembered telling the police that it was gang graffiti - "50's writing." Jenkins described his mood at seeing the writing as "a pretty hot rage." He wiped the figures off the window as he said, "I don't even get down with this. I don't know why you write on my property."

When Jenkins was about six feet away from Hodge, Hodge's expression changed to one of anger, and Jenkins worried that he might have come on "too strong." He therefore turned to the right, trying to turn his back to the truck and Hodge. Beckett had not behaved aggressively and Jenkins did not see him as a threat. Jenkins saw tattoos on Beckett's arms, but denied that he recognized them as gang tattoos.

The next thing Jenkins remembered was waking up in the hospital later, with cuts on his face and the inside of his mouth. He received four or six stitches on the outside of his face and about 10 stitches on the inside. He had an abrasion on his back from where he fell in the street, and still bore a scar from that injury. The facial cut left a scar one and one-half inch long. While Jenkins was in the hospital, two police officers questioned him and showed him photographs. Jenkins identified Hodge and Beckett as his assailants, although in court, he denied knowing who hit him.

Longtime neighbor, Angelisa Love (Love), testified that though she did not see the entire confrontation, she did see both defendants assault Jenkins. Hodge hit Jenkins first, followed by Beckett, with both blows landing on the left side of Jenkins's face in very rapid succession. Jenkins appeared to be dazed and he stumbled backward and hit the pavement. When Love yelled, "Oh, no. Oh, no," defendants ran off.

Los Angeles Police Officer Bradley Nielson (Officer Nielson) testified as the investigating officer and the gang expert. Since April 2007, he had been assigned to investigate the 55 and 57 Neighborhood Crips gangs. Officer Nielson explained that the 55 Neighborhood Crips was a criminal street gang with approximately 90 members. Its gang sign was made by forming the fingers into an "N" and an "H."

Officer Nielson had personally investigated gang related crimes, and had arrested members of the 55 Neighborhood Crips for crimes relating to the gang's primary activities, which consisted of shootings, narcotics trafficking, street robberies, and witness intimidation. Officer Neilson had made approximately 72 gang arrests before this crime, but not of defendants. He submitted certified records of convictions of two people he knew to be members of the 55 Neighborhood Crips gang. One was convicted of murder; the other was convicted of assault with a firearm.

Officer Nielson testified that Hodge had personally admitted his membership in the 55 Neighborhood Crips gang, most recently on the day of his arrest, and on many occasions in the two months prior to his arrest. Hodge's gang moniker was "Baby Snaps."

Officer Nielson was also acquainted with Beckett, who was an active 55 Neighborhood Crips gang member. Beckett used the moniker, "Infant Snaps."

Beckett had gang tattoos on his arms, chest or shoulders, triceps, and calves. Hodge had gang tattoos on his arms. Officer Neilson explained that tattoos were some evidence that a person was active in a gang.

On June 2, 2008, at approximately 5:30 p.m., while Officer Nielson was patrolling the 55 Neighborhood Crips territory with his partner, they received a radio call to respond to the scene of the assault. They found Jenkins on the ground next to a blue pickup truck, with a large amount of blood on the front and side of his face, and pooling under him. Jenkins was incoherent, dazed, very confused, and disoriented; he did not respond to questions in any meaningful way.

Investigation turned up the names "Snaps" and "Omar" as suspects. When the officers interviewed Jenkins about an hour later at the hospital, and showed him photographs of Beckett and Hodge, Jenkins identified them as his assailants.

Eight days later, Beckett was arrested in the company of another 55 Neighborhood Crip gang member, Damon Conway. When Hodge was arrested a few days after that, he was also with a 55 Neighborhood Crips member.

Officer Nielson was of the opinion that the assault on Jenkins was gang related. He cited evidence of disrespect for the gang, or perceived disrespect, in Jenkins's erasing the gang writing on the truck window. He explained that gang culture relied heavily on respect, and any form of disrespect, actual or perceived, would generally be dealt with very quickly and harshly in order to send a message to the community. This promotes fear and intimidation in the neighborhood, so that people are less likely to report gang crimes.

Officer Neilson was of the opinion that the crime was committed for the benefit of or in association with the 55 Neighborhood Crips gang, for the additional reason that there were two gang members and both were involved in the assault. Gang members commonly commit assaults or other crimes as a group or team, acting in concert from a sense of responsibility.

In response to a hypothetical question based on the facts of this case, Officer Nielson expressed the opinion that such a crime would be gang related. He opined that any disrespect, whether actual or perceived, especially around other gang members or other citizens, would require a response. Otherwise, both the disrespected gang member, the gang, and all its members would look bad, weakening the gang's enforcement capabilities inside and outside its neighborhood.

Neither defendant had been wearing gang clothing, nor did they "claim" their gang, as part of the assault on Jenkins. The absence of gang symbols in this case did not change Officer Nielson's opinion that this was a gang related incident as defendants were in their gang's territory and did not have to identify themselves as members of the 55 Neighborhood Crips to make themselves known.

(Respondent's Lodgment 9, pp. 2-5 see People v. Beckett, 2010 WL 4354215, at *1-3).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The evidence allegedly did not support the section 186.22(b)(1) gang enhancement (Grounds One, Two and Three);

2. The trial court allegedly committed prejudicial instructional error by failing to give a sua sponte instruction stating that, in a group beating situation, the prosecution purportedly must prove that the defendant knew or should have known during the attack that the cumulative effect of the unlawful physical force would result in great bodily injury to the victim (Ground Four); and

3. The prosecutor allegedly committed misconduct by arguing in closing that Jenkins and Love had minimized the defendants' criminal involvement because Jenkins and Love were afraid (Ground Five).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher,132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As 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.").

In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).

I. Petitioner's Challenges to the Sufficiency of the Evidence to Support the Gang Enhancement Do Not Merit Habeas Relief.

Petitioner received a (stayed) gang-related enhancement pursuant to California Penal Code section 186.22(b)(1). This section authorizes an enhancement for any person who is convicted of a violent felony which was "committed for the benefit or, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."*fn3 Petitioner contends the evidence did not support: (1) the finding that the crime was committed for the benefit or, at the direction of, or in association with a criminal street gang; (2) the finding that Petitioner acted with the requisite specific intent; and (3) Officer Nielson's opinion that the offense was committed for the benefit of a criminal street gang (Petition, Ground One, Two, Three). The Court of Appeal rejected these contentions, ruling that sufficient evidence existed to support both prongs of the enhancement, as well as Officer Nielson's opinion (Respondent's Lodgment 9, pp. 7-10; People v. Beckett, 2010 WL 4354215, at *4-7).

A. Governing Legal Standards

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Id. at 2064.

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 130 S. Ct. 665, 673 (2010).*fn4 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record -that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) ("it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial"). The prosecution need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." Id. (citation and internal quotations omitted).

At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).

This Court cannot grant habeas relief on Petitioner's challenges to the sufficiency of the evidence unless the state court's decision constituted an "unreasonable application of" Jackson v. Virginia.

See Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006).

B. Discussion

Petitioner argues that the evidence did not show that Petitioner committed the assault for the benefit of, or at the direction of, or in association with a criminal street gang (Petition, Attachment B, p. 1). Petitioner points to the alleged lack of evidence that Petitioner or Beckett ever said anything about a gang or used gang signs (id.). Even so, the prosecution's evidence did support the conclusion that Petitioner and Beckett were members of the Rolling 55 Crips, that Petitioner wrote a gang-related message on Jenkins' truck window, and that Petitioner and Beckett assaulted Jenkins because Jenkins erased that message.*fn5 A rational juror could have concluded from this evidence that Petitioner committed the assault for the benefit of or in association with a criminal street gang.

Additionally, Officer Nielson opined that the assault on Jenkins "definitely" was gang-related (R.T. 659, 662-63). Nielson said that gang culture deals "very quickly and very harshly" with disrespect, and that the assault was due to the perceived disrespect associated with Jenkins' erasure of the gang message from his truck window (R.T. 659). Nielson explained that the public nature of an assault in daylight hours, which caused "pretty severe injuries" including "[b]lood running down the street," would send a message to the community not to interfere with or express disrespect toward gang members (R.T. 659). Nielson also opined that, even if the writing on the window was not a gang message, the assault still was gang-related (R.T. 661). Nielson explained that gang members had "free rein" within the borders of their territory to do whatever they wanted, including lying down on someone's truck, and if the truck owner confronted the gang members and failed to show respect, there would be "consequences for that" (R.T. 661).

A rational juror crediting the evidence described above, including Officer Nielson's testimony, could have concluded beyond a reasonable doubt that Petitioner committed the offense for the benefit of or in association with a criminal street gang. See People v. Albillar, 51 Cal. 4th 47, 63, 119 Cal. Rptr. 3d 415, 244 P.3d 1062 (2010)("Albillar") ("Expert opinion that particular criminal conduct benefitted a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of a [criminal street gang]' within the meaning of section 186.22(b)(1)") (citation omitted); see also Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (gang expert's testimony that evidence petitioner shot victim in order to avenge a minor slight against petitioner's gang affiliate showed shooting was gang-related, because petitioner needed to maintain respect as a "hard-core" gang member).

Petitioner's argument that the evidence did not satisfy the specific intent element of section 186.22(b)(1) also lacks merit. In Briceno v. Scribner, 555 F.3d 1069, 1080 (9th Cir. 2009), the Ninth Circuit held that proof of a defendant's membership in a gang and the defendant's commission of a crime with a fellow gang member did not suffice to support a gang enhancement. The Briceno Court ruled that the evidence must show that the defendant committed the crime with the specific intent to aid or abet other gang-related crimes. Id.; see also Garcia v. Carey, 395 F.3d 1099 (9th Cir. 2005).*fn6

In Albillar, the California Supreme Court expressly disapproved the Briceno Court's interpretation of California law. Albillar, 51 Cal. 4th at 65-66. The California Supreme Court held that section 186.22(b)(1) "encompasses the specific intent to promote, further, or assist in any criminal conduct by gang members - including the current offenses . . . ." Id. at 65 (second emphasis added). "There is no statutory requirement that this 'criminal conduct by gang members' be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his [or her] fellow gang members in committing." Id. at 66 (citation and internal quotations omitted). Furthermore, "[t]here is no requirement that the defendant act with the specific intent to promote, further or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." Id. at 67 (citations omitted).

Albillar is binding on this Court with respect to these state law issues. See Bonilla v. Adams, 423 Fed. App'x 738, 740 (9th Cir. 2011); (Albillar "binding on this court in federal habeas cases"); Emery v. Clark, 643 F.3d at 1215-16 (Albillar's interpretation of section 186.22 "authoritative" on federal habeas); see also Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions") (citation and internal quotations omitted). Under Albillar, "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." Albillar, 51 Cal.4th at 68; see also Bonilla v. Adams, 423 Fed. App'x at 739-40 (evidence that petitioner committed robbery with two gang members and expert testimony explaining how such offenses could be useful to the gang held sufficient to show petitioner harbored the requisite specific intent).

In the present case, the evidence showed that Petitioner, an admitted gang member known as "Baby Snaps," committed the assault with Beckett, a fellow gang member whose body was covered with gang-related tattoos and who used the moniker "Infant Snaps" (see R.T. 635-44). Under Albillar, that evidence sufficed to permit the reasonable inference that Petitioner committed the assault with the specific intent to promote, further or assist criminal conduct by gang members. See Tran v. Horel, 446 Fed. App'x 859, 860-61 (9th Cir. 2011), cert. denied, U.S. , 2012 WL 170571 (May 29, 2012) (evidence that petitioner committed offense with four gang members, and that petitioner knew at least some of the four were gang members, sufficient to show requisite specific intent for gang enhancement); Emery v. Clark, 643 F.3d at 1216 (evidence that petitioner shot victim who had refused to let fellow gang members enter victim's store, coupled with expert testimony that petitioner wanted to teach victim that there were severe consequences for showing disrespect to a young gang member, sufficed to show the requisite specific intent).*fn7

Also unavailing is Petitioner's related contention that Officer Nielson's expert opinion was "improper" because it purportedly lacked evidentiary support (see Petition, Attachment B, p. 2). An expert may not base his or her opinion on "assumptions of fact without evidentiary support . . . or on speculative or conjectural factors." People v. Vang, 52 Cal. 4th 1038, 1046, 132 Cal. Rptr. 3d 373, 262 P.3d 581 (2011) (citations, internal brackets and quotations omitted). The record shows that Officer Nielson based his opinion not on assumptions, speculation or conjecture, but on the evidence submitted, including: (1) Officer Nielson's personal knowledge concerning the gang, the gang's activities and Petitioner's gang membership; (2) evidence of the message Jenkins saw on his truck window; (3) Jenkins' erasure of the message in response to having seen the message; (4) the violent response of Petitioner and Beckett to the erasure; and (5) the extent of Jenkins' injuries (see R.T. 623-51, 658-63).

In his Memorandum supporting the Reply, Petitioner raises a new claim in connection with Officer Nielson's testimony (see Reply Mem., pp. 4-5). Petitioner appears to contend that evidence of Petitioner's gang membership was allegedly improper and inflammatory propensity evidence (id.). Although this claim appears to be unexhausted (see Respondent's Lodgment 12), the Court may deny on the merits an unexhausted claim that is not "colorable." See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006); 28 U.S.C. § 2254(b)(2).

Petitioner's apparently unexhausted claim challenging the admission of the purported propensity evidence is not "colorable." The United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991) ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime"). Therefore, Petitioner cannot obtain habeas relief on this claim. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (same) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire); see generally Moses v. Payne, 555 F.3d 742, 758--59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an 'open question,'" habeas relief unavailable).

To the extent Petitioner also contends that Officer Nielson's testimony was inadmissible under state law, any such contention is not "colorable." See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. at 67-68 (mere errors in the application of state law are not cognizable on federal habeas review).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenges to the sufficiency of the evidence to support the gang enhancement was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on Grounds One, Two or Three of the Petition.

II. Petitioner's Claim of Instructional Error Does Not Warrant Habeas Relief.

With respect to the great bodily injury enhancement, the trial court instructed the jury using California's group assault instruction, CALCRIM 3160. This instruction informed the jurors that, if they could not conclude which person caused which injury, they could find that Petitioner inflicted great bodily injury on Jenkins only if the prosecution proved that: (1) two or more persons acting at the same time assaulted Jenkins and inflicted great bodily injury on him; (2) Petitioner personally used force on Jenkins during the group assault; and either: (3)(a) the amount or type of physical force Petitioner used was enough that it alone could have caused Jenkins to suffer great bodily injury; or (3)(b) the physical force Petitioner used was sufficient in combination with that used by others to cause Jenkins to suffer great bodily injury (see CALCRIM 3160). Petitioner contends the court sua sponte should have added to section (3)(b) of the pattern instruction a clause that would have required the prosecution to prove that the defendant knew or reasonably should have known that the cumulative effect of all of the unlawful physical force would result in great bodily injury to the victim. The Court of Appeal rejected Petitioner's argument, ruling that, under People v. Modiri, 39 Cal. 4th 481, 46 Cal. Rptr. 3d 762, 139 P.3d 136 (2006) ("Modiri"), CALCRIM 3160 correctly stated the law relating to proof of great bodily injury in a group assault case (see Respondent's Lodgment 9, pp. 14-15; People v. Beckett, 2010 WL 4354215 at *9).

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. at 71-72 ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.

In Modiri, the California Supreme Court upheld the sufficiency of CALJIC 17.20, the predecessor of CALCRIM 3160. CALJIC 17.20 provided, in pertinent part: "When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if (1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or (2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim." Id. at 490 & n.6 (emphasis omitted). In Modiri, the defendant had both started and joined a group attack that caused serious injury to the victim; however, chaos at the scene prevented witnesses from linking the victim's injuries to any particular assailant, weapon or blow. Id. at 485. Having been instructed with CALJIC 17.20, the jury found true the allegation that defendant had committed a serious felony by personally inflicting great bodily injury within the meaning of California Penal Code section 1192.7(c)(8). The Modiri Court noted that, in an earlier case, the court had held that the "similar" language of California Penal Code section 12022.7(a) excluded persons who merely aided and abetted the actor who directly inflicted the injury.*fn8 Modiri, 39 Cal. 4th at 485, 493. The Modiri Court held that the group beating principles set forth in CALJIC 17.20 and CALCRIM 3160 did not conflict with the statutory requirement that the defendant "personally inflict great bodily injury." The Modiri Court held that nothing in the statutory personal infliction language necessarily implied that the defendant must act alone in causing the victim's injuries, and that both group infliction theories set forth in the challenged instruction excluded persons who merely assisted someone else in producing the injury. Id. at 493-94.

The defendant in Modiri argued, among other things, that the trial court should not have instructed the jury under the second group beating theory contained in CALJIC 17.20. See Modiri, 39 Cal. 4th at 500-01. Under this theory, the jury could find the personal infliction allegation true if the defendant personally applied physical force to the victim while the defendant knew that others were doing so and while the defendant knew or reasonably should have known that the cumulative effect of all of the force would result in great bodily injury. Id. The defendant argued that the challenged language substituted his knowledge of the force applied by others for his own personal infliction of injury, thus assertedly permitting vicarious liability. Id. at 501. The Modiri Court rejected this assertion, observing that the second group beating theory in CALJIC 17.20 did not define the defendant's personal infliction solely in terms of the harmful acts of others, and that section 1192.7(c)(8) required only proof of general intent, i.e., intent to do the act proscribed. Modiri, 39 Cal. 4th at 501. The Court stated: "Instead of supplanting the personal-infliction requirement, the reference to what the defendant knew or should have known during the attack arguably imposes an additional evidentiary burden on the prosecution." Id. In a footnote, the Court observed that voters recently had rejected an attempt to amend section 1192.7(c)(8) to require proof of a defendant's specific intent personally to inflict great bodily injury. Id. n.11. The Modiri Court also stated that the California Legislature "long ago removed from section 12022.7(a) a similar requirement that great bodily injury be personally inflicted 'with the intent to inflict the injury.'" Id. (citation omitted).

Modiri did not hold that the knowledge component of the second group beating theory contained in CALJIC 17.20 was required by section 1192.7(c)(8). The Modiri Court simply stated that the instruction arguably imposed an "additional evidentiary burden" on the prosecution, a scienter requirement which the Court suggested the law did not require.*fn9 Like section 1197.7(c)(8), section 12022.7(a) contains no intent requirement. See People v. Poroj, 190 Cal. App. 4th 165, 172, 117 Cal. Rptr. 3d 884 (2010) (section 12022.7(a) "by its terms does not contain[] an intent element in addition to the general or specific intent element of the underlying felony or attempted felony to which it applies"); compare People v. Verlinde, 100 Cal. App. 4th 1146, 123 Cal. Rptr. 2d 322 (2002) (pre-Modiri case holding that 1995 amendment to section 12022.7(a) deleting requirement that perpetrator intend to inflict great bodily injury changed section 12022.7(a) from a specific intent statute into a general intent statute).

Moreover, Modiri expressly approved CALCRIM 3160 as a correct statement of law, and CALCRIM 3160 does not contain the "knew or should have known" language contained in CALJIC 17.20. See Modiri, 39 Cal. 4th at 486, 491; see also People v. Dunkerson, 155 Cal. App. 4th 1413, 66 Cal. Rptr. 3d 795 (2007) (applying Modiri analysis to section 12022.7(a) enhancement; upholding use of CALCRIM 3160). Therefore, the trial court in Petitioner's case had no obligation to add to CALJIC 3160 any statements concerning scienter or knowledge of the perpetrator of a group assault. The trial court did not commit any error of state law, much less any error of constitutional dimension.

It follows that the Court of Appeal's rejection of Petitioner's claim of instructional error was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Four of the Petition.

III. Petitioner's Claim of Prosecutorial Misconduct Does Not Merit Habeas Relief.

A. Background

On direct examination, the prosecutor asked Officer Nielson whether it was "common for witnesses to become less cooperative with the police and prosecution as the prosecution advances" (R.T. 657). After the trial court overruled a relevance objection, Nielson stated "Yes, sir," and explained that if a person in a gang neighborhood reported gang members' criminal activity to police or went to court, that would be "very detrimental to the gang's effectiveness in being able to operate" (R.T. 657-58). Nielson said that a gang's ability to operate freely without fear of the police becoming involved assisted the gang, particularly in narcotics trafficking (R.T. 658). In opining that the assault on Jenkins was gang-related, Nielson also testified that if persons in the community feared a gang, those persons would be "far less likely to report those gang members for the crimes they are committing" (R.T. 659).

On cross-examination, Petitioner's counsel asked Nielson: "Now, you said that the witnesses may not want to testify because of intimidation, but there has been no evidence in this case of any type of witness intimidation, is that correct?" (R.T. 693). The following occurred:

A That is incorrect, Ma'am.

Q When did that happen?

A I was approached by the detective, and he expressed to me concerns about there was some witness intimidation in [sic] by Mr. Hodge.*fn10

Q Not by these two gentlemen?

A No, Ma'am.

[Beckett's counsel] I object.

(R.T. 693-94).

At sidebar the following occurred:

The Court: I have a feeling that the answer was not anticipated. Correct?

[Petitioner's counsel]: Yes, because there had been some type of intimidation.

The Court: I think the evidence is what it is. I'm going to sustain the objection at this point because the witness has indicated that it was not from either one of these defendants. But I don't think we should go any further. Thank you.

(R.T. 694).

Later, Beckett's counsel moved for a mistrial based on Nielson's testimony that a detective had reported witness intimidation (R.T. 711). The court denied the motion for a mistrial, but said it would strike the testimony of Officer Nielson concerning alleged witness intimidation and would admonish the jury (R.T. 716). The court added that the parties could "argue based on the state of the evidence what is reasonable," but advised caution (R.T. 717). The court subsequently advised the jury that it had stricken "any evidence in the form of testimony from Officer Nielson which you heard before the noon hour regarding the intimidation of witnesses" (R.T. 747).

In closing rebuttal, the prosecutor responded to a defense self-defense argument by stating:

Mr. Jenkins was honest, forthright. He told you everything. But it is almost like he told you too much, like he was trying to minimize the defendants' conduct. He was trying to put it all on himself. Well, why would he do that? Why will a guy that got knocked unconscious, lying in a pool of blood on the street, why would he tell you, the jury in this case, "well, what they did wasn't all that bad." Officer Bradley Nielson told you why. Because Mr. Jenkins still lives in the neighborhood. He is afraid. There are a 0 [sic] members of the Neighborhood Crips.

(R.T. 940-41). Beckett's counsel objected (R.T. 941). The court overruled the objection, stating that the jurors would "have to make up their mind as to what the evidence has shown in this case using their common sense and the evidence" (R.T. 941).

The prosecutor continued:

These two guys in court here today are not the only members of the 55 Neighborhood Crips, are they? So the only evidence is what Mr. Jenkins told you. There is a problem with that because he has always maintained he made no physical attack on these guys ever. He went down there. He was angry. He said -- I think he was over-exaggerating because he is trying to minimize, but he went down there. He was upset.

(R.T. 941).

Later, the prosecutor argued that Petitioner and Beckett "hammered" Jenkins with "devastating blows to the head" (R.T. 943). Responding to defense arguments that the evidence showed only two hits, the prosecutor asked the jury to infer, from the evidence of Jenkins' lapse of consciousness, injuries and hospitalization, that there were more than two hits (R.T. 943). The prosecutor argued that Love testified there were "only two hits" because she lived in the neighborhood and was afraid because she had to "deal with all the other 55 Neighborhood Crip members on a daily basis along with her son" (R.T. 943).

Following the verdict, both Petitioner and Beckett moved for a new trial, arguing inter alia that the prosecutor had committed misconduct by making the arguments set forth above (R.T. 2119-24; C.T. 276-89). The court rejected these arguments, reasoning that there was a "very significant distinction . . . between that issue of witness intimidation which deals with overt conduct or action on the part of someone towards a witness, and a witness' actual state of mind which deals with the subjective reasoning of the witness" (R.T. 2137). The court continued:

And the People did present the testimony of Mr. Jenkins and did present the testimony of Ms. Love. And there were consistencies between their testimony and other statements they may have made in the past and inconsistencies. The reality is that is not at all unusual.

And in that regard, Officer Nielson, I believe, was entitled to explain to the jurors the issue of fear and control in the community and the effect that the presence of gang members may have in a community on the willingness of witnesses to come forward and testify truthfully, and why they might choose not to as time passes, as they continue to remain in the neighborhood. And at least at the time of this instance [sic], both actually lived in the neighborhood.

So I believe there is a clear distinction. And I do not agree with the defense posture that in pointing out the issue of whether a witness like Mr. Jenkins or Ms. Love was fearful of whether they might have a motivation not to testify candidly and truthfully because of where they live in the neighborhood, their familiarity with gangs, I see a very real distinction between arguing those aspects of the trial and in terms of the inferences that can be drawn in terms of evaluating credibility of Mr. Jenkins and Ms. Love.

(R.T. 2137-38). The court opined that the prosecutor's comments had not "crossed the line," and were "permissible comment on the state of the evidence and the reasonable inferences [that] could be drawn therefrom" (R.T. 2138). The court denied the motion for a new trial, ruling that the prosecutor's argument did not constitute misconduct or violate the court's previous order (R.T. 2139).

The Court of Appeal agreed (Respondent's Lodgment 9, pp. 11-13; see People v. Beckett, 2010 WL 4354215, at *8). The Court of Appeal reasoned that the prosecutor did not refer to testimony that the trial court had stricken, but rather to other testimony concerning the impact of a gang environment on witnesses. Id. The Court of Appeal also stated that the prosecutor properly argued inferences supported by evidence that the gang was a "frightening presence in its territory and that because of this, witnesses from the neighborhood were fearful." Id.

B. Discussion

Prosecutorial misconduct merits habeas relief only where the misconduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). The Court must consider the entire proceeding to determine whether the alleged misconduct rendered the trial so unfair as to violate due process. See Sechrest v. Ignacio, 549 F.3d 789, 807-08 (9th Cir. 2008), cert. denied, 130 S. Ct. 243 (2009).

In fashioning closing arguments, prosecutors are allowed reasonably wide latitude. United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions. [citation]." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996).

Recently, the United States Supreme Court ruled that certain alleged prosecutorial misconduct in closing did not warrant habeas relief. Parker v. Matthews, U.S. , 2012 WL 2076341 (June 11, 2011) ("Parker"). In Parker, the Sixth Circuit had granted habeas relief on a claim that the prosecutor had committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture a defense of "extreme emotional disturbance." Applying the AEDPA standard of review, the United States Supreme Court reversed the Sixth Circuit, observing that, even if the comments directed the jury's attention to inappropriate considerations, the petitioner had not shown that the comments were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at *6 (quoting Harrington v. Richter, 131 U.S. at 786-87). The Supreme Court noted that in Darden v. Wainwright the Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker v. Matthews,*fn11 and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations," the Sixth Circuit's decision was unwarranted. Parker v. Matthews, 2012 WL 2076341, at *6 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Under these standards, Petitioner's prosecutorial misconduct argument does not warrant habeas relief. The state courts reasonably ruled that the prosecutor did not comment on evidence the court had stricken. Rather, the prosecutor drew reasonable inferences from non-stricken evidence that the gang created fear in the community in general, and in witnesses to crimes in particular. These reasonable inferences permitted argument that Jenkins and Love, who lived in the gang area, may have minimized their descriptions of the crime out of fear. The trial court previously had ruled such evidence admissible. The prosecutor did not tell the jury that anyone had intimidated any witness, much less that Petitioner had any involvement in any specific incident of witness intimidation. Additionally, the court had instructed the jury to disregard Officer Nielson's testimony concerning alleged witness intimidation, and further instructed the jury that the statements of counsel, including statements made in closing argument, were not evidence (R.T. 747, 755). The jury is presumed to have followed its instructions. Weeks v. Angelone, 528 U.S. 225, 226 (2000).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's claim of prosecutorial misconduct was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Five of the Petition.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NO. CV 12-1992-GHK(E)

JASON EDWARD HODGE, Petitioner, )) v. DOMINGO URIBE, JR., Warden, )) Respondent.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.


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