The opinion of the court was delivered by: Terry J. Hatter, Jr.Senior United States District Judge
Petitioner was charged in two cases. The first involved a drive-by shooting, which was allegedly gang motivated. In that case, petitioner was charged with the discharge of a firearm at an occupied motor vehicle and receipt of stolen property.
The second occurred one and a half months later, and involved the robbery of a drug dealer. Petitioner was charged with robbery, residential burglary, and assault with a firearm. It was alleged in both cases that petitioner acted with his co-defendant, Edrick Brown, and in both incidences a handgun was used. The district attorney moved to consolidate the two cases. The court granted the motion.
Four days into trial the prosecutor moved to amend the information to add an attempted murder charge with a gang enhancement. The court granted the amendment.
During closing argument, the prosecution made certain statements regarding a defense witness's testimony. The prosecution was challenging the witness's claim that a victim of the drive-by shooting threatened her and attempted to extort money out of her. The witness testified that she called defense counsel more than twenty times to report the harassment. The prosecutor rhetorically asked "if the [jurors] had any doubt that any criminal defense lawyer would know how to pick up the phone and inform law enforcement that an alleged victim is threatening a witness."
Additionally, the prosecutor made comments regarding the testimony of some of the prosecution's witnesses during her closing argument. She referred to the robbery victim as a "pretty open guy" who "rattles on and on and on" and "tells you more than you need to know about himself." The prosecutor, also, stated that the gang expert's testimony "means something more than just testifying in front of [the jury]" because the expert's opinion "can come up later in any other proceeding when his expertise is called into question," and that it was "a significant opinion given under oath."
The prosecutor, also, revealed to the jury her trial-related thought process regarding some of the witnesses. She stated that she did not introduce testimony from Jesse Mendoza because he was a friend of the petitioner, and she was not convinced that Mendoza did not play a role in the robbery that petitioner was charged with. The prosecutor, further, revealed that she never prepared the robbery victim for his testimony, so as not to taint him for trial.
During closing argument, the prosecutor argued that petitioner's co-defendant, an alleged Norteno gang member, being housed in jail with a rival Sureno gang member did not disprove that the co-defendant was involved with the Nortenos because the Surenos would not have known that the co-defendant committed a crime against their gang unless the co-defendant announced it. Lastly, the prosecution referred to the reasonable doubt standard as something that the jurors could determine through their "common sense," and their "experience in life and expertise in day-today affairs.
The jury found petitioner, and his co-defendant, guilty on all charges. Petitioner filed a writ of habeas corpus in state court alleging that: (1) The trial court's decision to consolidate the two cases, and its refusal to sever the cases prior to trial, violated petitioner's Fourteenth Amendment right to due process and a fair trial; (2) The trial court erred in granting the prosecution's motion to amend the information to add an attempted murder charge; (3) The prosecutor committed prejudicial misconduct and violated petitioner's Fourteenth Amendment right to due process and a fair trial; (4) The cumulative prejudice that occurred amounted to a violation of petitioner's Fourteenth Amendment right to due process; and (5) Petitioner did not receive effective assistance of counsel. His petition was denied. Petitioner, then, filed a writ of habeas corpus in this Court.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d)(1), a habeas petition pursuant to the judgment of a state court shall not be granted, with respect to any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or 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. Cary v. Musladin, 549 U.S. 70, 74, 127 S. Ct. 649, 652-53, 166 L. Ed. 2d 482, 487 (2006).
The Supreme Court has never clearly established under what circumstances a joinder of two offenses would give rise to a due process violation. Thus, under AEDPA, petitioner is not entitled to habeas relief on that claim.
Even when applying Ninth Circuit precedent, petitioner's claim fails. There is no prejudicial constitutional violation of a joinder unless it actually rendered petitioner's trial fundamentally unfair, and, thus, violative of due process. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004), cert. denied, Davis v. Brown, 545 U.S. 1165, 126 S. Ct. 410, 162 L. Ed. 2d 933 (2005). This requisite level of prejudice is only reached if the joinder had a substantial and injurious effect on the jury's verdict. Davis, 384 F.3d at 638. In evaluating prejudice, the Ninth Circuit focuses specifically on cross-admissibility of evidence, and the danger of "spillover" from one charge to another, especially where one set of charges is weaker than the others. Davis, 384 F.3d at 638. Under California Evidence Code § 1101(b), uncharged misconduct can be used as evidence to prove identity. People v. Ewoldt, 7 Cal. 4th 380, 403, 27 Cal. Rptr. 2d 646 (1994). Petitioner and his co-defendant were identified jointly using a semiautomatic handgun in both incidences. This evidence was cross-admissible because it established identity by showing that the petitioner and his co-defendant acted together. There was, also, no disparity in the strength of the two cases based on the record at the time of the ruling. In each situation, the victims identified the petitioner and his co-defendant as the perpetrators. Petitioner has not shown that his joinder was contrary to clearly established federal law, or was based on an unreasonable determination of the facts. Therefore, petitioner is denied habeas relief on that claim.
Because the trial court did not err in granting the motion to consolidate the charges, and petitioner has not shown that the decision resulted in a trial that was fundamentally unfair, petitioner's claim that the court erred by refusing to sever the charges against him is, also, denied habeas relief.
In petitioner's second claim, he alleges that the trial court erred in granting the prosecution's motion to amend the information four days into trial to include an attempted murder charge because petitioner was prejudiced by lack of notice of the new allegation. The Supreme Court has never established under what circumstances a prosecutor's motion to amend the ...