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.
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.").
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).
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 ...