The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Jimmy Lee Benson, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Benson is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Kern Valley State Prison. Respondent has answered. Benson has elected to proceed without a reply.
I. BACKGROUND/PRIOR PROCEEDINGS
A San Joaquin County Superior Court jury found Benson guilty of murder (Cal. Penal Code § 187), three counts of attempted murder (Cal. Penal Code §§ 187/664), and participation in a street gang (Cal. Penal Code § 186.22(a)), as well as enhancements for personal and intentional discharge of a firearm during the commission of a felony, causing great bodily injury or death, participation in an offense where a principal personally and intentionally discharged a firearm, causing great bodily injury or death, and the commission of an offense to benefit a street gang, (Cal. Penal Code §§ 186.22 (b)(1), 190.2(a)(22), 12055.5(a), 12022.53(c)-(e)). In March 2007, the trial court sentenced Benson to life in prison without the possibility of parole, plus four indeterminate terms of twenty-five years to life and a determinate term of forty-two years and four months. The California Court of Appeal, Third Appellate District, affirmed Benson's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on April 22, 2010. Benson timely filed his Petition for relief in this Court on December 28, 2010.
The facts underlying Benson's conviction as summarized by the California Court of Appeal:
The evidence revealed the following:
Billy Ray Garner and his wife Tanya held a birthday party for their two teenage sons. Since the Garners had previously resided in the Bay Area, some guests from the Bay Area attended.
The Garners' sons advertised the party with a flier circulated in Stockton, including at a mall and a local park. The fliers announced an "ESO-EPA Party." ESO [East Side Oakland] and EPA [East Palo Alto] are gangs and rivals of the North Side Gangster Crips. [Benson] is a member of the North Side Gangster Crips. The sons also invited friends from Oakland, Palo Alto, and Stockton.
The party took place in the Garners' backyard, complete with stereo speakers. The host manned the gate and searched guests' backpacks prior to entry. However, he frequently left his post to watch a televised boxing match.
The party progressed without incident until a rap song was played that encouraged people to call out their hometowns or neighborhoods. Guests started yelling out towns, including East Oakland, East Palo Alto, and Stockton. Other partygoers yelled "North Side Crip," "Gangster Crip," "NSGC," and expletives about Stockton. The yells sparked tension among the partygoers.
The Garners decided to end the party, turned off the music, and asked the partygoers to leave. Billy Ray Garner yelled loudly, "The party's over. That's it. The party's over."
As the guests began to leave, some partygoers from the Bay Area waited across the street for rides. Other partygoers from Stockton "crip walked" in the street a few houses away. A friend of Billy Ray Garner drove up and told him one of the boys in the street had a gun. Garner saw someone with a gun and told his wife to call the police. The gunman was in the group gathered down the street from the Garners' home.
Billy Ray Garner approached the man with the gun and said: "Hey, man, you don't have to do this. This is not that type of party. You know. I know what you guys are about. These are high school kids. You know, you don't have to do this, man." The person with the gun said, "We hear you, OG." Garner believed "OG" was short for "old gangster." Garner later told police the man with the gun wore an Indianapolis Colts jacket.
According to Billy Ray Garner, [Benson] was among the group that included the person with the gun. [Benson] said, "Fuck that nigger, he ain't nobody." Garner testified: "At that point I knew that I was in the wrong place. [¶] . . . [¶] I started walking backwards."
Billy Ray Garner took about six steps backward and then turned around. He saw his wife's friend and told her to run. Suddenly Garner heard "a pop," and gunfire hit him in the arm. He started running and then was shot in the back. Garner's injuries resulted in a hospital stay and follow-up surgery.
Partygoers estimated six to nine shots were fired. Fourteen-year-old Eric Castillo was struck in the head, foot, and stomach. The head wound proved fatal, and Castillo was pronounced dead at the scene.
The Garners' 14-year-old daughter was hit by a bullet in the foot. A 17-year-old partygoer was hit in the calf and a bullet grazed his nose.
Other bullets were fired into the Garner home. These bullets were fired from the same weapon that killed Castillo. Bullets found in the street had characteristics consistent with the bullet that killed Castillo. Officers found evidence that at least 12 rounds were fired.
Officers arrived to find about 120 hostile people either walking away from the Garners' house or in their driveway. About a mile away, officers found Terrence Murray, who was wearing an Indianapolis Colts jersey. Police detained Murray and four others: David Lewis, Dawayne McDonald, Tim Moppins, and Danny Williams. Gunshot residue was found on Lewis.
In nearby bushes, officers found a .22-caliber revolver with six spent bullets in the cylinder. A prosecution expert could not determine if it had fired the bullet removed from Castillo.
Defendant's Arrest and Interview
Officers arrested [Benson] the day after the shooting. A gunshot residue test found no residue.
Police Detectives Eduardo Rodgriquez and Youn Seraypheap interviewed [Benson] twice about the shooting. The jury heard tape recordings of both interviews.
Initially, [Benson] told officers he did not have a gun and did not shoot anyone. Gradually his story began to change. Detective Rodriquez asked if [Benson] shot into the air, "Maybe just to scare everybody? You're shaking your head up and down, is that yes? Well you got to say it. [¶] . . . [¶] How many times did you shoot? OK. You have two fingers, is it two shots?"
Rodriquez asked what type of gun [Benson] had, and [Benson] stated he didn't know. [Benson] also stated: "[P]eople started shooting I just started shooting up to the air. [¶] . . . [¶] . . . So they can get scared so they won't shoot me." After the shooting [Benson] gave the gun to the "homie." [Benson] later identified the gun as a "44 Desert Eagle," which he shot "[t]wo times in the air." [Benson] denied having a revolver and said the Desert Eagle was an automatic. He also stated he picked up the two shells after the shooting and later threw them out the window while he was driving.
[Benson] told officers the .44-caliber Desert Eagle was in a friend's garage. Officers found the fully loaded gun in the garage. [Benson] also told officers three members of the group he was with, Lewis, Jesse Zamora, and Andy Thompson, fired guns.
Dawayne McDonald, one of the men detained with Terrence Murray, exercised his Fifth Amendment right against self-incrimination and refused to testify at trial. (U.S. Const., 5th Amend.) McDonald's preliminary hearing testimony was read to the jury. During the preliminary hearing, McDonald could not recall any details of the shooting at the party or any previous statements to police.
The prosecution then played for the jurors a videotape recording of a police interview of McDonald. McDonald told officers that partygoers from Oakland and Stockton clashed, yelling and passing out guns. McDonald stated [Benson], along with Lewis, Zamora, someone named Lamont, and Andy Thompson, fired shots. Zamora fired first, shooting a .38-caliber gun. Lewis fired six shots. After the shooting, Lewis threw the revolver into the bushes.
McDonald told officers there were six shooters and about six guns being fired during the melee. He drove around with detectives to show them where the shooters lived.
David Lewis, also detained following the shooting, was tried with [Benson]. Lewis testified he shot a gun the night of the party but did not fire into the crowd or aim at anybody. Lewis met [Benson] at juvenile hall but did not see [Benson] at the party.
Lewis testified he told officers he shot a gun "in the sky" and admitted saying "Fuck Oakland" the night of the shooting. According to Lewis: "I wasn't shooting at nobody. [¶] . . . [¶] . . . I just shot to clear a way, man." Anyone who said Lewis fired into the crowd was lying.
The prosecution also played a taped interview with Lewis and the police. In the interview, Lewis said a fight broke out in the backyard between Oakland guests and Stockton guests. People started throwing gang signs. The two groups traded insults. Oakland partygoers confronted a person from Stockton and someone said, "[B]itch I'm gonna knock you out." In response, "some big dude said, let's take this outside again right now."
As the group gathered out front, people began fighting. According to Lewis, the fight lasted 10 minutes and "We just started shooting." Lewis saw a "whole bunch of people . . . from both sides" shooting. Lewis stated: "They was shooting at the direction. [¶] . . . [¶] That's when I shot up at them." Lewis shot more than five times.
Lewis described the gun as a chrome revolver with "a wooden handle." He threw away the gun when he saw the officers arrive.
Zamora, also detained at the scene, testified he is a North Side Gangster Crip, or NSGC, as was his friend, Eddie Ortiz. Zamora testified [Benson] was not a gang member.
Zamora learned of the party from a flier he saw at a Stockton mall. He thought it was a Bay Area party. Zamora called [Benson] and Ortiz and told them about the party. He and Ortiz brought guns to the party.
Zamora and Ortiz drove to the party together; Zamora left his gun in the car but did not know if Ortiz did the same. After the party was shut down and tensions escalated, Zamora got his gun from the car and hung out with [Benson], Ortiz, and Lewis.
The group yelled "Stockton," and Garner approached the group and told them to leave. People began shooting as Garner walked back toward the house.
Zamora testified he saw [Benson] with a "[b]ig" automatic handgun but did not see [Benson] fire the gun. However, Zamora did see Lewis point a gun at the crowd and fire once or twice. Zamora admitted he fired his gun twice in the air but said he only fired to get others to stop shooting.
The jury also heard two statements Zamora gave to the police. Zamora told police he drove to the party with his mother and daughter. He went to the party and people began throwing gang signs and "just screaming out stuff." Zamora saw Lewis firing a gun.
Zamora told officers [Benson] had a gun with a clip. During the party the gun was visible, hanging out of [Benson's] pocket. [Benson] ignored Zamora's urging to conceal the gun. [Benson] showed the gun, danced in the street, and said, "[T]his is northside." Zamora was carrying [Benson's] gun when shooting broke out but gave it back to [Benson] when he asked for it. Zamora told police he fired twice in the air.
Gang expert Detective Michael George testified that [Benson], Lewis, Zamora, and Jonathan Brooks were documented members of the North Side Gangster Crips. The ESO and the EPA were rivals of that gang.
[Benson] admitted to Detective Rodriguez that he associated with and was friends with North Side gang members. However, [Benson] claimed that although he had belonged to the gang when he was younger, he was not currently a member. During a previous stay in juvenile hall, [Benson] admitted being a member of the North Side Gangster Crips.
Defense Case Defendant's Testimony
[Benson] admitted knowing North Side Gangster Crips members, such as McDonald, Ortiz, and Zamora. However, he denied belonging to the gang.
[Benson] learned of the party from some girls just prior to the party. During the party, he went out front to smoke, and when he returned to the backyard everyone was told to leave. Partygoers gathered in front of the house and began exchanging words.
As members of the Stockton group gathered, [Benson] walked over to them "[t]o see what they was [sic ] doing next, to see if there was another party that night." As he spoke with a friend from high school about going to another party, [Benson] heard shots ring out behind him. [Benson] did not see anyone with a gun and did not have a gun. After the shooting began, [Benson] ran to his car.
[Benson] testified he initially told officers he did not shoot the gun. He altered his story because he felt he had to say what the officers wanted him to say. The officers repeatedly told him it would be all right if he had fired into the air. According to [Benson], "I thought I'd be going home."
In addition, [Benson] testified that after police played a tape of Zamora stating [Benson] had fired a bigger gun, [Benson] falsely claimed that "Booba" gave him a gun, because he knew it was a bigger gun than the one being described and "that gun wasn't at the party that night." [Benson] told officers that Zamora used a .22-caliber weapon and Lewis used a chrome revolver because someone told him this after the shooting.
Lewis testified that after the fight broke out, he fired into the air to "clear a way." He denied shooting Castillo. He threw the gun into some bushes.
McDonald's cousin testified the party ended shortly after she arrived. She walked around the corner when she left and then heard gunshots coming from "right by the house."
Jasmine Farley also arrived shortly before the party broke up. As she walked home, she saw two groups yelling at each other, with members of each group reaching into their waistbands as if they had guns. After she went around the corner, she heard gunshots ring out from near the house.
Maria Farley testified that the party broke up after people began arguing. As she left, two groups stood on opposite sides of the street arguing, but it did not look like they were going to fight. As she walked away, she heard shots fired. Defendant's Mother
[Benson's] mother testified that [Benson] is of lower than average intelligence and has learning disabilities. He has trouble concentrating, and when ...