The opinion of the court was delivered by: Gary S. Austin 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 and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on May 19, 2009, of first degree murder (Cal. Penal Code § 187) and active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). (CT*fn1 447, 449.) The jury further found true the allegations that Petitioner had committed the murder in the attempted commission of a carjacking (Cal. Penal Code § 190.2(a)(17)(L)), and that Petitioner had committed the murder for the benefit of, or in association with, a criminal street gang (Cal. Penal Code § 186.22(b)). On June 17, 2009, Petitioner was sentenced to serve an indeterminate term of life without the possibility of parole, plus a consecutive term of ten years, in state prison. (CT 447, 449.)
Petitioner timely filed a notice of appeal. On January 12, 2011, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 1.) Petitioner then filed a petition for review in the California Supreme Court. On April 13, 2011, the petition was summarily denied. (See Lodged Doc. No. 2.)
On April 4, 2012, Petitioner filed the instant federal habeas petition in this Court. The petition presents the following grounds for relief: 1) The accomplice instructions violated Petitioner's constitutional rights by lowering the burden of proof; 2) CALCRIM Nos. 334 and 335 failed to adequately instruct the jury on corroboration; 3) The trial court erred by failing to instruct on accomplice corroboration as to witness Alex Huerta; 4) CALCRIM No. 334 does not adequately set forth the defendant's burden in proving a witness was an accomplice; 5) The trial court erred in failing to sever the criminal street gang count and in failing to bifurcate the criminal street gang enhancement; 6) The trial court denied Petitioner's right to an impartial jury by failing to dismiss the entire jury venire; 7) The evidence was insufficient to support the criminal street gang enhancement; 8) The trial court erred by failing to instruct the jury that CALCRIM No. 370 did not apply to the gang enhancement; and 9) CALCRIM No. 226 impermissibly lightened the prosecution's burden of proof. On June 29, 2012, Respondent filed an answer to the petition. Petitioner did not file a traverse.
Holding a shotgun in his hand, Anthony Orona told Candice Clark that he and Oscar Ballesteros wanted her boyfriend Carlos Gonzalez's truck. He threatened to kill her and her friend Elizabeth Hendricks if she did not tell Gonzalez to pick her up in his truck, but he promised not to hurt anyone if she cooperated. Clark called Gonzalez and asked him to pick her up in the alley down by the tracks, where Orona and Ballesteros went after putting on gloves and bandannas. As Gonzalez drove up in his truck, Clark waved him away, Orona and Ballesteros ran toward him, and he started to drive away. A shot was fired. He died of a gunshot wound to the head.
A jury found Orona guilty of first degree murder during the attempted commission of a carjacking for the benefit of a criminal street gang (count 1; Pen.Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 190.2, subd. (a)(17)(L)) and guilty of active participation in a criminal street gang (count 2; § 186.22, subd. (a)). The court, inter alia, sentenced him to a term of life without the possibility of parole on the special circumstance murder and a 10-year term on the gang-benefit enhancement (count 1) and imposed and stayed a three-year term on the gang-participation charge (count 2). We reverse the judgment as to the count 2 gang-participation charge for insufficiency of the evidence, strike the count 1 gang-benefit enhancement from the judgment for lack of statutory authorization, modify the judgment to correct sentencing errors involving a probation revocation fine and custody credits, and otherwise affirm the judgment. (See Lodged Doc. No. 1.)
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 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 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 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (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.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner 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); Harrington v. Richter, __ U.S. __, __, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); 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." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address  the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009), quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008); see Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.
If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, quoting Webster's Third New International Dictionary 495 (1976). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the preAEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).
"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists could disagree on the correctness of the state courts decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir.2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
AEDPA requires considerable deference to the state courts. "[R]review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," and "evidence introduced in federal court has no bearing on 2254(d)(1) review." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
A. CALCRIM No. 334 and 335 - Burden of Proof In his first claim, Petitioner alleges the jury instructions contained in CALCRIM No. 334 and 335 impermissibly lowered the prosecution's standard of proof by allowing the jury to find accomplice corroboration based on "slight" evidence. (See Petition at 6.)
This claim was first presented on direct appeal to the Fifth DCA. The Fifth DCA denied the claim in a reasoned decision. (See Lodged Doc. No. 1.) Petitioner then raised the claim to the California Supreme Court in a petition for review. The California Supreme Court denied the claim without comment or citation of authority. (See Lodged Doc. No. 2.) When the California Supreme Court's opinion is summary in nature, the Court must "look through" that decision to a court below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 (1991). In this case, the appellate court analyzed and rejected the claim as follows:
Orona argues that CALCRIM Nos. 334 and 335 prejudiced him by requiring him to prove that a witness is an accomplice, by permitting the jury to use accomplice testimony against him if slight supporting evidence connects him to the crime, and by failing to inform the jury that corroborating evidence must tend to connect him with the commission of the crime in a way that reasonably satisfies the jury the accomplice is telling the truth. The Attorney General argues the contrary.
First, we address Orona's burden-of-proof and slight-supporting-evidence challenges. Solely with reference to Maritanya Cardiel, the focus of his disagreement with CALCRIM No. 334 ("Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice") is the sentence, "The burden is on [him] to prove that it is more likely than not that Maritanya Cardiel was an accomplice." As to Cardiel, Clark, and Elizabeth, the focus of his disagreement with both CALCRIM No. 334 and CALCRIM No. 335 ("Accomplice Testimony: No Dispute Whether Witness Is Accomplice") is the following: FN11
FN11. The quoted text is from the reporter's transcript of the court's instruction to the jury with CALCRIM No. 334, which is substantially the same as the reporter's transcript of the court's instruction to the jury with CALCRIM No. 335 and as the written versions of both instructions in the clerk's transcript. "Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendants are guilty of the charged crime[ ] and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified.
"On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. Supporting evidence must tend to connect the defendant to the commission of the crime. The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice."
The instructions Orona challenges correctly state the law. Section 1111 prohibits conviction on the testimony of an accomplice without corroboration by other evidence tending to connect the defendant with the commission of the crime.FN12 (See People v. Zapien (1993) 4 Cal.4th 929, 982, 17 Cal.Rptr.2d 122, 846 P.2d 704.) "In enacting section 1111, the Legislature intended to eliminate the danger of a defendant being convicted solely upon the suspect, untrustworthy and unreliable evidence coming from an accomplice, who is likely to have self-serving motives that affect his credibility." (People v. Belton (1979) 23 Cal.3d 516, 526, 153 Cal.Rptr. 195, 591 P.2d 485.) Corroborating evidence that tends to implicate the defendant "'and thus relates to some act or fact that is an element of the crime'" is sufficient even if slight and entitled to little consideration when standing alone. (People v. Richardson (2008) 43 Cal.4th 959, 1024, 77 Cal.Rptr.3d 163, 183 P.3d 1146, quoting People v. Avila (2006) 38 Cal.4th 491, 563, 43 Cal.Rptr.3d 1, 133 P.3d 1076 (Avila ).)
FN12. In relevant part, the statute provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (§ 1111.)
The federal due process clause "'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" (Martin v. Ohio (1987) 480 U.S. 228, 231-232, 107 S.Ct. 1098, 94 L.Ed.2d 267, quoting In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368.) The corroboration requirement "in section 1111 has no bearing on the prosecution's proof of any element of the charged crime," however, so "there is no constitutional impediment to placing on a defendant the burden of proving, by a preponderance of the evidence, a witness's status as an accomplice." (People v. Frye (1998) 18 Cal.4th 894, 968, 77 Cal.Rptr.2d 25, 959 P.2d 183 (Frye), overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420, 87 Cal.Rptr.3d 209, 198 P.3d 11 (Doolin ).)
On the premise that Carmell v. Texas (2000) 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (Carmell ) holds that a state corroboration requirement is part of the quantum of evidence necessary to convict, Orona argues that CALCRIM Nos. 334 and 335 lowered the prosecution's burden of proof in violation of due process by permitting the jury "to find corroboration based on slight evidence." Our reading of Carmell differs from his.
The issue before the United States Supreme Court in Carmell was whether a state statute that required both a rape victim's testimony and corroborating evidence to convict at the time of the rape at issue but that later required only a rape victim's testimony alone to convict could "be applied in a trial for offenses committed before the amendment's effective date without violating the constitutional prohibition against state 'ex post facto' laws." (Carmell, supra, 529 U.S. at p. 516, italics in original.) The opinion characterized the statute as a "'law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'" (Id. at p. 522, quoting Calder v. Bull (1798) 3 Dallas 386, 390, italics in original.) Since the statute "changed the quantum of evidence necessary to sustain a conviction" so that "petitioner could be (and was) convicted on the victim's testimony alone, without any corroborating evidence," the high court held that the amendment violated the ex post facto clause. (Carmell, supra, at pp. 530, 552.) Carmell neither held nor intimated that a state corroboration requirement is part of the quantum of evidence necessary to convict.
Here, the court instructed the jury with CALCRIM No. 220 on the prosecution's burden of proof beyond a reasonable doubt. Absent evidence to the contrary, the jury is presumed to have followed the charge to the jury. (Mendoza, supra, 42 Cal.4th at p. 699, 68 Cal.Rptr.3d 274, 171 P.3d 2.) No evidence to the contrary is in the record. The court gave no instruction authorizing the jury to convict on the basis of "slight" supporting evidence connecting him to the crime. (See Lodged Doc. No. 1.)
The Court notes that an allegation that a jury instruction is incorrect under state law does not form a basis for federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law."). Rather, a habeas court must consider "'whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process' ... not merely whether 'the instruction is undesirable, erroneous, or even universally condemned.'" Henderson v. Kibbe, 431 U.S. 145, 154 (1977), quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); California v. Roy, 519 U.S. 2, 5 (1996) (challenge in habeas to the trial court's jury instructions is reviewed under the standard in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) - whether the error had a substantial and injurious effect or influence in determining the jury's verdict.). The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Id.
In this case, the state court determined the instruction was correct under state law. It further found the instruction did not lower the prosecution's burden of proof or violate Petitioner's federal due process rights in any way. As noted by Respondent, due process does not bar or limit the use of uncorroborated accomplice testimony. See United States v. Augenblick, 393 U.S. 348, 352 (1969) ("When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions"); United States v. Castro, 476 F.2d 750, 753 (9th Cir.1973), citing Bible v. United States, 314 F.2d 106 (9th Cir.1963), cert. denied, 375 U.S. 862 (1963) ("The testimony of an accomplice . . . is sufficient to support a conviction"); Darden v. United States, 405 F.2d 1054, 1056 (9th Cir.1969) ("It is well established that a conviction in federal court may be based on the uncorroborated testimony of an accomplice"); Harrington v. Nix, 983 F.2d 872, 874 (8th Cir.1993) ("[S]tate laws requiring corroboration do not implicate constitutional concerns that can be addressed on habeas review."). Thus, if uncorroborated accomplice testimony is permissible under the Constitution, then accomplice testimony corroborated by only "slight" evidence must also be permissible. Accordingly, the claim fails.
Petitioner argues that the Supreme Court, in Carmell v. Texas, 529 U.S. 513, 533, fn. 22 (2000), held "that a state corroboration requirement is part of the 'quantum of evidence' necessary to convict." (See Petition at 7.) The Court does not agree with Petitioner's reading of Carmell. In Carmell, the Supreme Court determined an ex post facto violation had occurred when the State retroactively applied an amended law that changed the quantum of evidence. Id. at 530.
Under the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence. The amended law, however, changed the quantum of evidence necessary to sustain a conviction; under the new law, petitioner could be (and was) convicted on the victim's testimony alone, without any corroborating evidence.
Id. In Petitioner's case, the law did not change to alter the quantum of evidence necessary to sustain the conviction. There is no ex post facto concern here.
Further, the state court reasonably concluded that there is no reasonable probability that the jury misunderstood CALCRIM Nos. 334 and 335 to authorize a conviction based on "slight" evidence. As noted by Respondent and the appellate court, the jury was instructed on the presumption of innocence and the prosecution's burden to prove Petitioner's guilt beyond a reasonable doubt. (CT 295.) The trial court further instructed the jury that they may convict based on accomplice testimony, but only if that testimony was corroborated by at least slight evidence. Jurors are presumed to follow their instructions. Penry v. Johnson, 532 U.S. 782, 799 (2001). There is nothing in the record to suggest the jurors did not follow their instructions or that they were confused with regard to the instructions on accomplice testimony.
Petitioner fails to demonstrate that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law," or an "unreasonable determination of the facts in light of the ...