The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for discharging a firearm at an occupied vehicle (Cal. Penal Code § 246), with special findings that he personally used a firearm (Cal. Penal Code § 12022.53(c), and committed the crime to promote a criminal street gang (Cal. Penal Code § 186.22(b)(1)). Petitioner is serving a sentence of twenty-five years to life. In particular, petitioner was sentenced to five years for discharging a firearm at a vehicle plus twenty years for personally using a firearm, with the indeterminate term added by the gang enhancement.
This action is proceeding on the original petition filed October 28, 2011. (Dkt. No. 1.) Petitioner raises the following claims: 1) the California Court of Appeal improperly considered facts outside the record in deciding petitioner's appeal; 2) insufficient evidence to support the gang enhancement; 3) violation of Confrontation Clause; 4) improper admission of prejudicial evidence; 5) the trial court erred in denying petitioner's motion to dismiss; 6) jury instruction error; 7) ineffective assistance of trial and appellate counsel; and 8) the gang enhancement statute is unconstitutionally vague.
After carefully reviewing the record, the undersigned recommends that the petition be denied.
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
The shooting On January 13, 2007 (all further unspecified calendar dates are to that year), 15-year-old Kelly V. [FN4] arranged to meet her friend J.L., who was 14, in front of a Fairfield Street apartment complex in North Sacramento. Kelly's 23-year-old nephew, See Vue, lived in the complex. Kelly and See were emotionally close and she often spent the night at his apartment.
FN4. For convenience and to avoid confusion, we will customarily refer to the witnesses by their first names.
Kelly set up the meeting by calling Jerry Vang, a member of the Hmong gang known as "Masters of Destruction," which goes by the acronym MOD. When Vang received the call, he was at a park with J.L. and J.L.'s sister Sophia. Following the call, Jerry drove the two sisters and Bobby Yang to meet Kelly. The group arrived at the apartment complex and waited for Kelly to enter the car. Instead of joining them, however, Kelly just stood about 10 to 20 feet away, texting or calling from her cell phone.
After about five minutes, a silver Honda-type car pulled up alongside and a hooded Asian male, who was sitting on the passenger side, fired several rounds into Jerry's vehicle.
Bobby was hit in the finger and Jerry was grazed in the waist by stray bullets, but J.L. was hit in the thigh. Jerry drove them to the hospital where J.L. was treated for a gunshot wound.
Police investigation On February 13, a month after the shooting, Kelly was interviewed at the police station. She described the assailants as two young Asian males in a gray Honda Accord, but initially denied knowing the identity of the shooter. After the police interviewer urged her several times to tell the truth, Kelly wrote defendant's name down on a piece of paper. She also selected defendant's picture from a photographic lineup. Kelly reluctantly admitted that she set up J.L. to be shot because she was jealous and angry over J.L.'s relationship with Jerry. Kelly instructed defendant to shoot at the car, not at the people, because she only wanted to "scare" J.L. Kelly gave a detailed description of crystal methamphetamine use and dealing at the Fairfield Street apartment where See Vue, Seng Vue and John Vang were staying. She stated that she offered defendant an "eight ball" of crystal methamphetamine to be provided by her nephew See, in return for doing the shooting.
Following Kelly's interview, officers conducted a raid on the Fairfield Street apartment. The officers found a partial methamphetamine laboratory, and seized a large amount of methamphetamine and a cache of illegal firearms. As a result of the raid, Hmong Nation Society (HNS) gang members John Vang and Seng Vue were charged with possession of methamphetamine for sale and John Vang was also charged with possession of illegal firearms.
On February 15, Detective Joseph Bailey of the gang suppression unit of the Sacramento Police Department interviewed the victim J.L. Although she was very fearful, J.L. identified defendant as the shooter from a six-pack photographic lineup.
Trial testimony Kelly Kelly was called as a witness for the prosecution. At the time of trial, she was serving time in a treatment facility in Wyoming after pleading guilty to assault in connection with the shooting.
At the commencement of her testimony, Kelly readily admitted that she set up the shooting, but displayed a remarkable lack of memory about the statements she had made to the police implicating defendant as the shooter. After the video of her police interview was played for the jury, her memory improved. She admitted setting up J.L. to be shot by defendant because J.L. was saying bad things about her behind her back and always trying to embarrass her. She instructed defendant to shoot at the car, not at the people, because she just wanted to frighten J.L. Kelly testified that See, Seng and John Vang were selling methamphetamine from their apartment and furnishing it to her. See and defendant were affiliated with the HNS gang and hung out together. She knew Jerry to be a member of the MOD gang. See and his HNS friends did not like Jerry because he was a MOD, and gave Kelly a hard time because she associated with him.
Kelly was fearful of retaliation against her family by HNS if she testified against defendant, and conceded that it would be better for her family if she did not identify defendant. She admitted telling her counselor and an investigator that she planned on lying at the trial.
J.L. testified that she used to be a close friend of Kelly's. J.L. and Jerry were also close friends. Although defendant is J.L.'s cousin, she does not know him well. On the day of the shooting, J.L. was hanging out at Natomas Park with her sister Sophia, and Jerry and Bobby Yang. Kelly called Jerry and told him to pick her up, so the three of them got in Jerry's car and drove to the Fairfield Street apartment complex.
When they arrived, Kelly was about 20 feet from their car, standing there, doing nothing. Finally, a silver car with two Asian males pulled up alongside and the passenger fired three or four shots into Jerry's car. J.L. was shot in the leg.
When confronted with her pretrial identification of defendant as the shooter, J.L. tried to retract it. She claimed she was "confused" and selected defendant's photo only because she thought the officer was asking her if she recognized anyone in the lineup.
After the shooting, J.L. ran into defendant at a funeral. He told her "I heard that you got shot, so how's your leg doing?" Defendant then lifted up his shirtsleeve and displayed his "HNS" gang tattoo, which scared her and gave her a "weird feeling." J.L. admitted telling the detective who interviewed her that she was fearful of testifying in the case. She acknowledged that defendant's associates still reside in the neighborhood where she lives.
Gang evidence Detective John Fan, who is assigned to the gang suppression unit of the Sacramento Police Department, testified that Jerry Vang was an associate of the MOD gang, a Hmong gang that predominates in the south area of Sacramento. Detective Bailey, a specialist in Asian gangs, also testified. Bailey explained that HNS is a Hmong gang that claims the north side of town for its territory, whereas, MOD predominates on the south side. Asian street gangs are "ruthless, ... violent criminals," who thrive on intimidation. Citizens, as well as other gang members, know that "if you mess with an Asian gang member, they're gonna have a gun." HNS gang members have been involved in drive-by shootings, as well as the manufacture, sale and use of methamphetamine. They have also been known for intimidating witnesses, crime victims and their families. Detective Bailey testified about the case of Ger Lor, an HNS gang member. Lor was convicted of the drive-by shooting of Johnny Her, a member of a rival gang. The shooting in July 2005 benefitted HNS by enhancing its reputation in the community and with rival gang members. [FN5]
FN5. The trial court took judicial notice of court documents relating to Ger Lor's conviction for attempted murder and shooting at an occupied motor vehicle, which included true findings on gang enhancements for each crime.
Detective Bailey testified defendant was a validated member of the HNS gang.
Defendant admitted his gang membership and had gang graffiti throughout his room. The apartment complex where the shooting occurred was an HNS "gang hangout," where methamphetamine was being manufactured, gang members were harboring arms, and drug traffic was flowing.
Answering a hypothetical based upon the evidence in this case, Detective Bailey testified that, in his opinion, such a shooting promoted or benefitted the HNS gang. By shooting a rival gang member in front of their own hangout, HNS enhanced its reputation, engendered fear in the community and hesitancy in rival gangs about disrespecting them. Bailey discounted the possibility that the shooting could have been motivated by the promise of a single dose of crystal methamphetamine. He stated the risk was too great, "unless it is to benefit the gang."
Detective Bailey interviewed J.L. and her family. They were all "very afraid" that if they cooperated with the police they would suffer retaliation by the HNS gang. Defense Defendant did not testify. Several of his family members testified that he was at a family barbeque on the day of the shooting, that he stayed all day long, and did not leave until the barbeque ended late that evening.
Defendant also presented two witnesses who intimated that See Vue, who was in poor health and had died by the time of trial, might have been responsible for the shooting because the victim, Jerry, was Kelly's boyfriend and she complained to See that Jerry had beaten her up. (Dkt. No. 15-1 at 3-9.)
A. Claim 2: Insufficient Evidence
The undersigned addresses claim two first because it puts claim one in context. The California Court of Appeal was the last state court to issue a reasoned decision addressing this claim. (Dkt. No. 15-1, Respondent's Lodged Document 8.) Accordingly, the undersigned considers whether the denial of this claim by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson established a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence. U.S. v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). First, the court considers the evidence at trial in the light most favorable to the prosecution. Id., citing Jackson, 443 U.S. at 319. "'[W]hen faced with a record of historical facts that supports conflicting inferences," a reviewing court 'must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id., quoting Jackson, 443 U.S. at 326.
"Second, after viewing the evidence in the light most favorable to the prosecution, a reviewing court must determine whether this evidence, so viewed is adequate to allow 'any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.'"
Id., quoting Jackson, 443 U.S. at 319. "At this second step, we must reverse the verdict if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt." Id.
Superimposed on these already stringent insufficiency standards is the requirement of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).
Analysis--Claim One Petitioner argues that there was insufficient evidence to support his gang enhancement. On direct appeal, the California Court of Appeal denied this claim for the reasons stated herein:
Defendant claims the gang enhancement should be stricken. These arguments may be broken into two components: one based on an incorrect "legal theory" presented to the jury and the other based on insufficiency of the evidence. Neither has merit.
Pursuant to section 186.22, subdivision (b)(1), the jury found that defendant's crime of shooting at an occupied vehicle (§ 246) was committed "for the benefit of, or at the direction of, or in association with a criminal street gang, to wit 'HNS', with the specific intent to promote, further and assist in criminal conduct by gang members."
The definition of a "criminal street gang" includes the requirement that its members "individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. (§ 186.22, subd. (e); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) The predicate offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10.) The charged crime may serve as one of the predicate offenses. ( Gardeley, supra, at p. 625; People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).)
To prove a second predicate offense (other than the crime for which defendant was on trial), Detective Bailey testified about a drive-by shooting by Ger Lor, a member of HNS, of Johnny Her, a rival gang member. Bailey also recounted the drug raid on an HNS "hangout," at Fairfield Street apartments, where two gang members were arrested for possession for sale of methamphetamine and possession of illegal firearms.
In closing argument, the prosecutor told the jury that they could find a second predicate offense based on either the Ger Lor shooting in 2005 or the fact that two HNS members were "having guns and selling dope" in 2007.
Defendant claims that the jury could consider only the Ger Lor shooting, which predated the charged crime, not the drug and firearm arrests that took place afterwards. The Attorney General concedes the prosecutor should not have urged the jury to consider the February 2007 arrests, but claims that because the Ger Lor drive-by shooting easily qualified as a second predicate crime, the error was harmless.
Defendant finds prejudicial error based on People v. Green (1980) 27 Cal.3d 1, 69 (Green) (overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233-237 and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3) and People v. Guiton (1993) 4 Cal.4th 1116, 1122 (Guiton), which hold that when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand. However, Green and Guiton are not relevant here, because they involved instructional error. Defendant does not claim the instructions were erroneous. The invalid factual theory he cites appears in the prosecutor's closing remarks. That claim is forfeited, because he never objected to the prosecutor's argument in the trial court. (People v. Morales (2001) 25 Cal.4th 34, 43-44 .)
Furthermore, for the reasons that follow, we find the jury could consider Detective Bailey's testimony about the drug raid on See Vue's apartment in deciding whether a second predicate crime had been committed by the HNS gang.
Section 186.22 includes, as a predicate "offense" to show a pattern of gang activity, the "sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances." (§ 186.22, subd. (e)(4).) It is true that a crime that takes place after the charged crime may not be considered as a predicate offense for purposes of satisfying the "pattern of criminal gang activity" requirement of section 186.22. (Duran, supra, 97 Cal.App.4th at pp. 1463-1464.) However, nothing in the statute mandates that the arrest or conviction predate the charged offense. Section 186.22 merely requires "evidence of a gang's past criminal conduct," which must be "'ascertainable to a reasonable degree of certainty and involve [ ] felonious conduct undertaken with a specific, criminal intent.'" (People v. Godinez (1993) 17 Cal.App.4th 1363, 1368-1369, italics added.)
Here, Kelly testified that See Vue had been dealing methamphetamine from his apartment and providing it to her. Officers conducting a raid of the apartment just one month after the shooting found four illegal firearms, more than 10 baggies, close to 80 grams of methamphetamine, and the remnants of a methamphetamine lab. Two HNS gang members were arrested and eventually convicted of possession for sale of methamphetamine. Based on this evidence, a reasonable jury could find that the HNS gang had engaged in felonious conduct, i.e., manufacture and sale of methamphetamine prior to the shooting. The fact that the arrests and convictions took place afterward did not preclude the jury from concluding that the criminal activities occurred during the relevant time frame.
Defendant also claims the Ger Lor shooting could not be used as a predicate crime and thus the entire gang enhancement should be stricken, because there was no competent evidence that Ger Lor was a member of HNS. Defendant bases this argument on the assertion that Detective Bailey never gave an opinion that Lor was an HNS member, but relied on Lor's validation by another officer. Since hearsay evidence may be relied upon by expert witnesses, but may not be used as "independent proof" of any fact (Gardeley, supra, 14 Cal.4th at p. 619), defendant contends there was a lacuna in proof that the drive-by shooting, of which Lor was convicted, was committed by a gang member.
In addition to Detective Bailey's description of the facts surrounding the shooting, the prosecution introduced court records of Ger Lor's conviction, including true findings on gang enhancements. Such official records are competent evidence to prove predicate crimes. (Evid.Code, § 452.5; Duran, supra, 97 Cal.App.4th at pp. 1459-1462.) But defendant has not designated those exhibits as part of the appellate record. We must presume that evidence not before us would support the challenged finding. (Cf. Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Thus, the incomplete record on appeal effectively prevents us from assessing the sufficiency of the evidence, and results in a forfeiture of defendant's substantial evidence argument. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1427.)
In any event, defendant's argument is based on a false premise. Detective Bailey did give an opinion that Lor was a gang member, as evidenced by the following colloquy: "[PROSECUTOR]: Now, are you familiar with the facts of [the Ger Lor drive-by shooting]? "[DET. BAILEY]: Yes, I am. "[PROSECUTOR]: How did you become familiar with the facts of the Ger Lor case? "[DET. BAILEY]: I read the case. "[PROSECUTOR]: Now, what gang was Ger Lor in, if any? "[DET. BAILEY]: Hmong Nation Society." (Italics added.)
Bailey then added that Lor's membership was validated by another member of the gang task force or a cop.FN6
FN6. We summarily reject defendant's claim that Detective Bailey's recitation of another officer's validation of Lor as a gang member violated his confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36, 67-68. At least two California cases have debunked this argument. ( People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
Gang membership is the proper subject of expert opinion testimony. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) The italicized quote amounted to an expert opinion by Detective Bailey on Lor's gang membership, based on both a reading of the case file and Lor's validation by a colleague. The mere fact that Bailey did not preface his statement by saying, "It is my opinion that ..." did not mean it was not admissible opinion testimony. Bailey's opinion testimony, coupled with proof of Ger Lor's gang-related conviction, constituted substantial evidence to support the jury's finding that the drive-by shooting was committed by an HNS gang member. (See Duran, supra, 97 Cal.App.4th at p. 1463.)
(Dkt. No. 15-1 at 16-21.)
Petitioner is arguing that evidence regarding the methamphetamine sales was not sufficient evidence of a predicate act because the methamphetamine offenses occurred after his crime. For the reasons stated by the California Court of Appeal, this claim is without merit. The incident on which petitioner's conviction is based occurred on January 13, 2007. In a February 13, 2007 interview with Detective Beezley that was played to the jury, Kelly Vue discussed the methamphetamine activity in the HNS hang out. Kelly Vue stated that she had seen crystal methamphetamine at the apartment two or three months earlier. (Court Transcript ("CT") at 381.) Kelly Vue stated that she witnessed methamphetamine being sold at the apartment. (Id. at 384-86.) Kelly Vue testified that she stopped going to the apartment two or three times a week "ever since Christmas." (Id. at 388.) After Christmas, she went a few times. (Id. at 399.)
Prosecution gang expert John Van testified that on February 13, 2007, he arrested Seng Vue and John Vang at the apartment discussed by Kelly Vue in her interview with Detective Beezley. (RT at 376.) Expert Van testified that after searching the apartment, four illegal firearms were found and close to 80 grams of methamphetamine. (Id. at 379.) Expert Van testified that the apartment contained a ...