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 January 11, 2009, of second degree murder (Cal. Penal Code § 187(a)), and attempted murder (Cal. Penal Code §§ 187(a), 664). (See Resp't's Answer, Ex. A.) The jury further found that Petitioner had personally and intentionally discharged a firearm, proximately causing death, and that he personally and intentionally discharged a firearm during commission of the attempted murder (Cal. Penal Code § 12022.53(d)). (Id.) Petitioner was sentenced to serve an indeterminate term of forty years to life plus a consecutive term of twenty-seven years. (Id.)
Petitioner timely filed a notice of appeal. On October 14, 2011, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (Id.) Petitioner then filed a petition for review in the California Supreme Court. On January 11, 2012, the petition was summarily denied. (See Lodged Doc. No. 6.) On March 14, 2012, Petitioner filed the instant federal habeas petition in this Court. The petition presents the following grounds for relief: 1) The trial court committed reversible constitutional error by denying Petitioner's motion to discharge a juror; 2) The trial court erred by erroneously admitting into evidence photographs and a video from security cameras; and 3) The prosecutor committed intentional misconduct during closing argument, and defense counsel was ineffective in failing to object to the misconduct. On July 3, 2012, Respondent filed an answer to the petition. Petitioner did not file a traverse.
STATEMENT OF FACTS*fn1 PROSECUTION EVIDENCE
The Initial Investigation and Fidel Jimenez's Death [n.2]
[n.2] The record occasionally gives the name as "Jiminez." Because the information says "Jimenez," we use that spelling except where quoting.
At around 11:45 p.m. on March 23, 2008, which was Easter Sunday, Fresno Police Officers Garcia and Lujan were dispatched to a report of a shooting at the Liquor King at Herndon and Blackstone. It was a day on which cruising was allowed, so traffic on Blackstone was heavy. The large parking lot, which served Liquor King and several other businesses, contained numerous cars and people. When the officers arrived, cars were leaving the lot and people were running in every direction.
Garcia observed a gray or silver truck that appeared to have collided with a building. The truck's driver, Fidel Jimenez, was slumped over on the truck's seat. He was bleeding from the face or head and had a slight pulse. Someone in the crowd that had gathered advised he had been shot. There was broken glass on the truck's seat and two tall beer cans on the floorboard.
Lujan began crowd control, while Garcia and Sergeant Alvarez, who was now at the scene, tried to extricate Jimenez. Jimenez lost his pulse, but the officers were able to get it back. Emergency personnel then arrived and took over. Alvarez ordered the entire parking lot locked down, and put out a preliminary radio broadcast containing information he had received concerning a white Mustang that may have been involved. The car, which contained an African-American male and possibly a Hispanic, had left at a high rate of speed.
There was what appeared to be bullet impact damage to the door frame of a business just south of the one into which the pickup had crashed. There was a bullet entry hole on the passenger side pillar of the pickup, and a deformed bullet fragment was found in the corresponding wall panel. Although a number of latent prints were lifted from vehicles, cans, bottles, and other trash in the parking lot, none could be identified as belonging to Lopez or Flemming. No firearms were found in the pickup nor was an antitheft device called the Club. However, an open flip-style cell phone was found on the passenger side floorboard of the vehicle.
The entire strip mall/parking lot area was searched for evidence. No Club security devices, bars, or anything else that might be used as a weapon were located. No shell casings were found.
Fidel Jimenez suffered a gunshot wound to the head, behind the right ear, with injuries to the left back of the brain and the cervical spine. He was alive but paralyzed from the neck down when brought to the hospital, and he remained that way until April 1, 2008. On April 1, his neurological status began to change, and it was determined he had developed an aneurysm in the area of several bullet fragments. A corrective procedure was unsuccessful, and Jimenez's family made the decision to withdraw life support. He died on April 4. The cause of death was related to injuries to the brain and spinal cord, with those injuries having been caused by the gunshot wound to the head that he sustained on March 23. The wound course was inconsistent with him looking at the shooter at the time the bullet struck him, but was consistent with him looking straight ahead.
[n.3] In Akira Kurosawa's film Rashomon, four individuals witness a crime. Each then recounts the story honestly, but in mutually contradictory ways. Because of the Rashomon-like testimony of the various eyewitnesses -- even those who were not acquainted with the victims or defendants -- we summarize each individually, rather than attempting to compile a unified account. We also include their statements to police.
On the evening of March 23, 2008, Adam Mirelez and Jimenez, his longtime friend, went cruising on Blackstone. Jimenez was driving his 1986 primer-gray Silverado pickup. Mirelez was sipping from a can of beer. He never saw Jimenez drinking that night, although there was a second beer can in the truck.
Blackstone was fairly crowded, and at some point they pulled into the parking lot on the southwest corner of Herndon and Blackstone, where the Liquor King was located. There was a speed bump as they first came in, and a crowd of people and cars. Mirelez estimated they were going five miles per hour or less. Jimenez was on his cell phone.
The car stopped by a median before it reached the crowd of people. Jimenez and Mirelez were trying to get through, but there were people everywhere. As they waited for people to move, Mirelez saw Lopez on the sidewalk on the driver's side of the truck, almost 10 feet away. Lopez came up to Jimenez's window, which was open, and angrily yelled a couple of times, "What's up, homey?" Jimenez nodded his head at Lopez as if to say, "What's up," but he was not really paying attention because he was on the phone.
Lopez then came to Mirelez's side and said the same thing numerous times. Mirelez, who had a can of beer in his hand, put the beer in his lap and pulled the door handle, but the door did not open any distance. Lopez then punched him in the nose through the window, causing Mirelez's nose to bleed profusely. Mirelez leaned down toward Jimenez and grabbed the beer can, which was between his legs. He then raised back up. He never attempted to strike Lopez; as far as he knew, there was nothing in the truck he could have used to do so. Jimenez did not have a Club.
Lopez stepped back and yelled at his friend, "Pull the pistol. Pull the pistol." The friend, a tall African-American who was wearing a white sweater and possibly a hood, seemed to come out of nowhere. He pulled a gun from his pocket or belt area and pointed it at Mirelez from a little over six feet away. Mirelez ducked down, heard a shot, and then felt the truck go forward. It hit something, then went over the curb and into a store. He heard two shots together. Because he had ducked down, he did not see what happened to Lopez or the African-American male after the shooting. Mirelez believed that if he had not ducked down, he possibly would have been shot. The bullet came through the window where he had been sitting. He had been sitting between the gun and Jimenez.
Once the truck hit the building, Mirelez got out and looked at Jimenez. Mirelez did not see any blood, but he could not get Jimenez to wake up. Mirelez then ran. He had just been shot at; there were people everywhere and he did not know if his assailants were still around or what was going on. He returned within a minute, and the police soon arrived.
When subsequently interviewed by Detective Byrd, Mirelez described the shooter as wearing a fitted baseball cap and a white, zip-up, hooded sweater. Shown a photographic lineup, Mirelez selected Lopez's picture and said it looked most like the person who hit him and said to pull out the pistol. Byrd also showed Mirelez a photographic array containing Flemming's picture, but Mirelez could not identify anyone. Mirelez did not recognize Flemming at trial. When shown a surveillance camera photograph, however, he found the individual's white sweater, and the way he stood and had his hands in his pocket, familiar. Mirelez believed he had previously seen the white sweater on the shooter.
On March 23, 2008, Martin Alvarez was cruising on Blackstone with his friend, Gabriel Lopez, in Gabriel's truck.[n.4] Seeing a lot of cars in the parking lot at Blackstone and Herndon, they decided to stop. They had parked and gotten out of their vehicle, when Alvarez saw an older gray truck drive in. It was proceeding slowly at five miles per hour or less.
[n.4] To avoid confusion with Defendant Lopez, we refer to Gabriel Lopez by his first name. No disrespect is intended.
Lopez -- whom Alvarez had seen on a prior occasion -- was walking across the parking lot, and the truck stopped to let him cross. In Alvarez's opinion, the truck did not stop "in any aggressive way." Lopez, who was about the width of one parking space away and still on the sidewalk, nevertheless threw up his arms, approached the truck, and loudly asked, "What's up dog?" He also said, "Do you have a problem?" and things of that sort. His comments were directed at the driver.
Lopez kept saying the same stuff over and over, and the male in the passenger seat of the truck started to open the door. The passenger said something like he was not going to let somebody start arguing over something stupid. By that time, Lopez had already gone around the truck and was asking if the passenger was going to do something. Lopez then pushed the door closed. The passenger window was open; Alvarez saw Lopez swing at the passenger, but could not see whether contact was made. The passenger reached toward the seat as if to grab something with which to hit Lopez back, although Alvarez never saw anything in his hand. Lopez then called his friend, shouting, "Hey, dog. Pull that gun out. Pull that gun out." Alvarez was not sure where Lopez's friend came from, but when Lopez shouted, the friend, who was African-American, ran toward the truck. Alvarez saw him kind of reach and hold his belt area as he moved toward the truck's passenger, shouting, "What's up dog?"
Gabriel told Alvarez to get in the truck, and the two tried to watch what was going on while also going toward their vehicle. Lopez's friend was arguing and at the same time pointing the gun, which was small and black. Alvarez saw the truck's driver step on the gas, and Lopez's friend shot toward the truck. Two shots were fired. The first hit the pillar of the truck. The second hit the driver. His foot apparently got stuck on the gas, and the truck hit an SUV and then the building.
Although Alvarez did not see what Lopez did after the shots were fired, he saw the shooter jump into the back seat of an older, two-door white car. The shooter was wearing a white sweatshirt with green lines on it and maybe some jeans. He was not wearing a hat. Alvarez did not see where the car went.
Detective Tacadena interviewed Alvarez within hours of the shooting. Alvarez reported that he saw the Hispanic male and the African-American male getting into a white, older-model car he thought was a Monte Carlo. Alvarez also related that prior to the shooting, he saw the pickup's passenger reach across his body with his hand and swing at the suspect standing outside the vehicle with an object that appeared red in color. At some point, the passenger had a beer in his hand. Alvarez reported hearing the passenger say, "F*** this. I ain't gonna, I ain't gonna take this from this guy[.]" Alvarez said the African-American was wearing a white sweatshirt with a green shirt underneath. When shown a photographic lineup containing Lopez's picture, Alvarez identified Lopez and said he was 100 percent sure he was the person who punched the passenger and said to pull out the pistol.
Gabriel also saw the pickup traveling in the parking lot. He did not believe it was going that fast, because it stopped and waited for him to back into a parking stall. He saw the truck stop at a second point and heard arguments. They seemed to come from the front and side of the truck.
Gabriel saw an African-American male with a white shirt in front of the truck. This man raised his hands. The next thing Gabriel saw was a person with a black shirt reaching into the truck like he was trying to punch the passenger. He heard the person in the white shirt say something like, "Get it out." The person with the black shirt then took a few steps away from the truck and started shooting. The truck, which had accelerated just prior to the shots being fired, turned to the left and hit other cars.
The two individuals involved in the altercation started walking slowly toward where Gabriel's truck was parked. A mid-1980's Monte Carlo SS and a black-and-white Mustang were in that direction. The pair appeared to be walking toward the Monte Carlo, but Gabriel did not see what car they entered.
Detective Byrd interviewed Gabriel a few hours after the shooting. Gabriel said the African-American was possibly wearing a white shirt. Gabriel related that he heard glass break and then shots. He saw the African-American male's hand extend prior to the shooting, but did not see the gun. Gabriel later recontacted Byrd to relate that he had seen the Mustang driving up and down Blackstone, with a passenger who was an African-American male with cornrows and a white shirt.
Terry Reyes was in the Liquor King parking lot a bit after 10:00 p.m. on Easter Sunday, 2008. She saw an older-model, primered truck pull in. It was barely moving because the place was so packed with cars, and then it stopped. Reyes then saw two men run around the front of the truck to the passenger side. She could hear arguing, and saw the Hispanic male start to hit the passenger of the truck through the window. The passenger ducked down or blocked himself from getting hit. Reyes thought she saw a little piece of something, possibly a stick, that he was using to deflect the blows, but he could have been using his arms. She never saw anything come out of the truck, and did not believe the people outside the truck were in danger.
Reyes saw the other man, an African-American, pull a gun from the belt area of his jeans and point it at the truck. It looked like he tried to pull the trigger and nothing happened, but then he pulled again and Reyes saw two shots and heard gunshots. The gun was shot directly at the truck from the passenger side. The African-American and Hispanic males then ran off and the truck crashed into a building. The suspects ran to what Reyes believed was an older white car that could have been a Mustang.
Reyes told Officer Taliaferro at the scene that the shooter, an African-American male, had stepped out of a Ford Mustang and shot into the victim's vehicle. When interviewed by Tacadena, she said the African-American's hairstyle was a short fade, and he was wearing a white T-shirt and light blue jeans. She also said both suspects left the scene in an older-model white Mustang.
Jose Vargas saw Jimenez's truck pull into the parking lot. He estimated it was travelling five miles per hour or possibly slower, "like a walking pace." Vargas heard an argument between an African-American male and the passenger in the truck, but no reference to a firearm. The African-American male approached the passenger side of the pickup and punched the passenger. The passenger swung backward, moving his hand at an arc up by his ear. There was nothing in his hand. The African- American male then stepped back, pulled a gun from his front pocket or belt, and shot what Vargas believed to be three rounds into the vehicle. The shooter was wearing a white sweatshirt or sweatshirt jacket and dark jeans or black pants. He did not have anything on his head. He was the only person Vargas saw who appeared to be associated with this event.
Fresno Police Officer Rose took a statement from Vargas at the scene. In part, Vargas reported that he saw an African-American male approach the passenger side of the truck, and that at some point he heard a voice yell, "Pull out the piece[.]"
Juan Padilla, who was with Vargas, also saw Jimenez's truck pull into the parking lot. It was going slow, perhaps five miles per hour. He subsequently heard some arguing, then saw a punch thrown on the passenger side of the truck. Because he was not wearing his glasses, he could not see well enough to see who threw the punch. It appeared that the passenger either swung back or attempted to block a blow, whereupon an African-American individual outside the truck took a step back and made a motion like he was reaching for a weapon.[n.5] Padilla turned around and told his friends to duck. He then heard two or three gunshots. The African-American male ran.
[n.5] Padilla did not see anything in the passenger's hand. He believed he would have noticed if there was something large, but probably would not have seen anything small.
Byrd interviewed Padilla a few days after the shooting. Padilla said he saw the African-American male go up to the passenger side of the truck and strike the passenger. He said the African-American male was wearing a white jacket or sweater.
Yvette Uribe grew up with Flemming and was also acquainted with Lopez. She saw them at Liquor King on Easter Sunday of 2008, although she did not know at what time. She estimated it was an hour or so before the shooting.
Janell "Nellie" Mayberry was acquainted with both Flemming and Lopez, whom he knew as Chano.[n.6] On Easter Sunday, 2008, Mayberry drove his green four-door Infiniti to Flemming's house so they could go cruising. With Mayberry was Albert "Papa" Hood. Eventually, Mayberry drove to the Liquor King, accompanied by Hood, Flemming, and Flemming's girlfriend, Claudia. Mayberry was following a white Monte Carlo that contained Kevin Tatum (an African-American), Lopez, and Luis Perez. On the way, they stopped at several stores. At no time that evening did Mayberry hear Lopez ask if they wanted to take a gun with them.
[n.6] Mayberry's testimony might best be described as evolving over the course of his time on the witness stand. We have attempted to synthesize the versions into one that imparts the most information.
At some point while Mayberry was in the Liquor King parking lot, he heard, but did not see, a shooting. He ran back to his car, arriving about the same time as Flemming, Claudia, and Hood. Everyone was talking about the shooting, although nobody was talking as if they had seen it. Mayberry immediately left the parking lot. He did not know who did the shooting or if Flemming had a gun. He did not see who got into Tatum's car.
At some point after the shooting, Lopez called Mayberry, wanting his gun back. Mayberry and Hood drove to Lopez's house about an hour after the shooting. Lopez grabbed the gun from Mayberry's car, but Mayberry could not remember where in the car. This was the first time Mayberry saw the gun.
Mayberry and Hood remained at Lopez's house for about an hour. At some point, Flemming called Mayberry. Flemming may have mentioned cameras at the Liquor King, as they were all wondering whether the store had cameras.
Byrd and Tacadena interviewed Mayberry two weeks after the investigation started. They tape-recorded the interview, which took place at Mayberry's home. By the time of the interview, Byrd had spoken to about 30 people, and so already knew what he should be hearing from Mayberry.[n.7]
[n.7] At trial, Mayberry testified that he could not remember what he told Byrd, but believed he "[h]alfway" told him the truth.
Mayberry initially was very evasive and inconsistent. Ultimately, however, he talked about a person named Chano, and identified a photograph of Lopez. He said there was a plan to go cruising on Easter, and that he had gone to Lopez's house early that evening to go cruising. Originally, he was in Kevin Tatum's white Monte Carlo SS, but eventually he left in his own green Infinity. While at Lopez's house, Lopez asked the group if they wanted him to bring his gun. Flemming told him to bring it. Lopez then brought it out of his house and took it with them when they went cruising.
Mayberry related that they went to the Liquor King parking lot, then left to go to another liquor store and returned. With Mayberry in the car he was driving were Albert Hood in the passenger seat, and Flemming and Flemming's girlfriend, Claudia Seamster, in the back seat. Kevin Tatum's white Monte Carlo SS was traveling with them; in that car were Tatum, Lopez, and Luis Perez.
Mayberry told Byrd that he heard a shooting, whereupon he ran back to his vehicle. At the vehicle when he arrived were Hood, Flemming, and Seamster. As they were leaving the scene, Flemming and Hood both said, " 'That n***** got busted on.' " Flemming also said, "I told him to stop f***ing around." Seamster was upset and crying, and Flemming was trying to calm her down. Mayberry related that from the scene, he went south on Blackstone. He dropped Flemming and Seamster off at an apartment complex, then had a conversation with Hood about "laying down" after something like this, meaning they should not be out and about. Lopez subsequently called, requesting his gun, so Mayberry drove to Lopez's house. There, Hood retrieved the gun-a .38 Special-from the back seat area where Flemming had been and gave it to Lopez. Upon receiving the gun, Lopez said something to the effect of, "Thanks, fool. I need it," and then took it into the house. Flemming called Mayberry while Mayberry was at Lopez's house. Flemming asked if he thought there were videos at the Liquor King. Mayberry then passed the phone to Lopez, and Flemming spoke with Lopez.
Luis Perez had been friends with defendants since childhood. He "[s]omewhat" recalled Easter Sunday of 2008, as he was "kind of drunk" that day. Around 9:00 or 10:00 that night, Perez and Kevin Tatum drove over to Lopez's house in Tatum's white Monte Carlo to pick Lopez up to go cruising. Perez did not see Flemming there.
The trio drove up and down Blackstone. Perez believed he saw Flemming on Blackstone late that night, but did not really remember because he was drunk. Perez's group stopped at the Liquor King parking lot, then went somewhere else to get more liquor, then returned to the Liquor King lot. They probably cruised Blackstone for an hour or two before going to the Liquor King parking lot for the final time.
While Perez was standing outside one of the stores, he heard gunshots. He did not see what happened. He ran to the car; Lopez and Tatum were already there. They got into the car and joined a line of vehicles trying to leave. Tatum was driving. It took them three or four minutes to get out of the line, then Tatum dropped Perez and Lopez off at Lopez's house and left. Perez did not recall any conversation in the car about what had taken place.
Byrd interviewed Perez on April 4, 2008, and tape-recorded their conversation.[n.8] Perez said he had consumed some hard liquor before going out cruising on Blackstone, and also drank a little once out there. Perez related that on the date of the shooting, he was with Kevin Tatum and Lopez. He went to Lopez's house, but did not see Flemming there. He thought he might have seen him driving on Blackstone in a green four-door sedan with tinted windows.[n.9] Eventually, he admitted seeing Flemming in the Liquor King.
[n.8] According to Perez, he had consumed 9 or 10 beers prior to the interview.
[n.9] The windows of Mayberry's car were tinted.
Perez told Byrd that at some point, he heard gunshots at the Liquor King. When he got to the car, Tatum and Lopez were there. Perez eventually related that Lopez said he had almost gotten run over, he was in a fight with the passenger of a truck, and one of his friends shot. Lopez never said which one.
Perez said that after the shooting, they went to Lopez's house, where Perez stayed until he was picked up by somebody else. The white Monte Carlo left. Perez first said Tatum did not want to give him a ride home because the tags on the car were not current. Eventually, he agreed with Byrd that the real reason Tatum did not want to give him a ride home was because they knew the vehicle had been seen at the location of the shooting and that involved parties had gotten into it, and he did not want to be driving it around.
Perez related that a green car showed up at Lopez's house. It looked like the same car Flemming had been in. The car was present at the Liquor King. When it arrived at Lopez's house, its occupants gave Lopez a gun.
Perez said he himself was wearing a red hat and red shirt that night. Lopez was wearing a black jacket, and Flemming was wearing a white sweater with a black shirt underneath. Perez said Tatum might have been wearing a white jersey, then later mentioned a team jersey.[n.10]
[n.10] The final descriptions Perez gave Byrd were consistent with what Byrd saw on a surveillance videotape taken inside the Liquor King.
Kevin Tatum had known Flemming since high school. He first met Lopez on Easter night, 2008, when he went cruising with Lopez and Luis Perez, each of whom he picked up in his white 1987 Monte Carlo SS. While picking Lopez up at Lopez's house, there was no mention of a handgun. Tatum did not remember if he saw Flemming at Lopez's house. At some point, he saw a green car owned by Janell Mayberry, but he did not remember when.
The trio went cruising down Blackstone somewhere in the timeframe of 8:00 or 9:00 p.m. They ended up in the Liquor King parking lot, then left to go to another liquor store down the block. At some point, they returned to the Liquor King parking lot. When the shooting occurred, Tatum was in a different area of the parking lot. Mayberry's car was next to his.
Tatum did not see the shooting, but heard the shots. People then scattered. Tatum ran to his car. When he left the parking lot, Perez and Lopez were with him. The green car left at the same time. It contained Mayberry, Hood, Flemming, and Claudia. Tatum did not remember anybody in his car being excited or what Lopez might have been saying.
Tatum dropped Lopez off at home. He believed he also dropped Perez off, then went home himself. He made no comment, and was not concerned, about anybody possibly looking for his car, which he accidentally wrecked soon after the shooting.
On April 15, Byrd interviewed Tatum, who admitted being in the Liquor King on Easter. Byrd showed Tatum some digital photographs that were created from the video surveillance system inside the store. Tatum identified himself on one of the photographs. He recognized himself by his clothing, mainly his blue hat. Tatum was able to say who else was in the photograph, and that those people were in the store at the time he was. Tatum identified Flemming in one of the photographs and ...