The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 2, 2009, following a jury trial in the Tulare County Superior Court Petitioner was convicted of kidnapping to commit robbery, one county of robbery, assault with a firearm, assault with a deadly weapon, and conspiracy to commit robbery. It was further alleged and found true that Petitioner personally inflicted great bodily injury, the crimes were committed for the benefit of a criminal street gang, and property taken was in excess of $50,000. It was also found true that a principal in the kidnapping to commit robbery, robbery, and conspiracy to commit robbery used firearm and such allegation applied to all co-defendants, such as Petitioner, for whom the gang allegation was found true.
On August 20, 2009, Petitioner was sentenced to life in prison with a minimum of fifteen years before eligibility for parole on count one (kidnapping to commit robbery), plus a consecutive ten years for the firearm enhancement, a consecutive three years for the great bodily injury enhancement, and a consecutive three years for the great bodily injury enhancement. On count two (robbery), Petitioner was sentenced to a total term of sixteen years, stayed as follows: three years, the mid-term, with a consecutive ten years for the firearm enhancement, and a consecutive three years for the great bodily injury enhancement. The sections 12022.6 and 186.22 enhancements were stayed. On count three (assault with a firearm), Petitioner was sentenced to a total term of eight years, stayed as follows: three years, the mid-term, with a consecutive five years for the gang enhancement. On count four (assault with a deadly weapon), Petitioner was sentenced to a total term of thirteen years, stayed as follows: three years, the mid term, with a consecutive ten years for the gang enhancement. The section 12022.7 enhancement was stayed. On count five (conspiracy to commit robbery), Petitioner was sentenced to a total term of thirteen years, stayed as follows: three years, the mid term, with a consecutive ten years- for the firearm enhancement. The sections 186.22, 12022.6, and 12022.7 enhancements were stayed.
On March 23, 2011, the California Court of Appeal, Fifth Appellate District, modified Petitioner's sentence in count one to reflect an indeterminate term of life in prison and a determinate term of ten years for the firearm enhancement. The judgment was affirmed in all other respects. Petitioner petitioned for rehearing, and on April 21, 2011, the court issued an Order Modifying Opinion and Denying Petition for Rehearing, modifying only some of the language in the opinion. (Ex. B. to Answer.)
On July 13, 2011, the California Supreme Court denied Petitioner's Petition for Review. On February 15, 2012, the California Court of Appeal, Fifth Appellate District, denied Petitioner's Petition for Writ of Error Coram Nobis. Petitioner filed the instant petition for writ of habeas corpus on April 18, 2012. Respondent filed an answer to the petition on August 1, 2012. Petitioner did not file a traverse.
Around 9:55 p.m. on Friday, January 25, 2008, Yassen Saeed (Yassen), the manager of the N & S Chevron store near Porterville, was preparing to close the store. Yassen was cleaning the fountain drink area, and his back was to the store's front door and windows. The store's front windows faced the parking lot. There were no customers in the store. Yassen's co-worker, David Santoyo (David) was outside, cleaning the parking lot.
Yassen heard the store's front door open and turned around. Four men ran into the store and rushed up to him. One man held a metallic revolver, another man had some type of gun, and a third man had a baseball bat. Yassen could not see their faces because they were wearing masks and hoods. The men pointed the guns at Yassen's head, swore and cursed at him, and ordered him to get down on the floor. Yassen immediately got on the floor and did not resist.
The two gunmen ordered Yassen to go to the back of the store. Yassen obeyed and crawled on the floor. The men pushed him to the store's rear storage area, which was not open to the public. Yassen did not hear the men shout any gang names or gang slogans. When Yassen reached the back of the store, his last memory was seeing the "guy with . . . the baseball bat." Yassen was hit in the head with the baseball bat and passed out.
When Yassen regained consciousness, he was disoriented and lying in a pool of blood at the back of the store. Yassen discovered that $800 of his own money was missing from his back pocket. The store's office was adjacent to the storage room, and the office door had been closed and locked. The store kept a large amount of cash in that office on Friday nights to cash customers' payroll checks for the weekend. Yassen discovered the office door was open, the safe and cabinet which contained the store's case were also open, and over $160,000 had been taken. The store's cash registers had not been disturbed.
At the time of the robbery, David, Yassen's co-worker, was cleaning the parking lot and did not realize what was going on in the store. However, David noticed a silver Mitsubishi was parked behind the store. The driver was wearing a hooded sweatshirt and was the only person in the car. One or two minutes later, David saw the car drive away from the store at a slow speed. The car's headlights were not on. The car passed by David as it left the parking lot, and David saw two or three more people in the car.
At about the same time, a customer drove up to the store and saw a silver Mitsubishi "flying out" of the parking lot. The customer and David found Yassen walking around outside, and he was "busted up" and bleeding.
Yassen suffered a skull fracture and he was in the hospital for one week. He repeatedly suffered seizures as a result of his head injuries. He was placed on various medications, but his seizures were so serious that he could not return to work.
The investigating officers found a pool of blood in the store's rear hallway. The distance from the fountain drink area to the pool of blood was 33 feet.
The store had a closed-circuit videotape system with multiple cameras. Fidel Saeed (Fidel), Yassen's cousin, was also a clerk at the store, and he watched the surveillance videotape of the robbery. Fidel immediately recognized one of the masked robbers as Michael Santoyo (Michael), David's brother and the store's former assistance manager, based on the distinctive way Michael walked and carried himself. Michael's face was partially visible above his mask.
Yassen and Michael had been good friends, and they had worked together at the Porterville store for several years. About a month before the robbery, Michael borrowed the store's truck and wrecked it, and he did not return to his job. David continued to work at the store after Michael left.
Yassen testified that Michael knew the store kept a large amount of cash in the back office on Friday nights. The office door was usually locked, but Yassen and Michael kept a little knife next to the door, on top of the power box, and they used that knife to pry open the door if they forgot the key.
Michael's trial testimony [FN 4]
FN 4. Michael voluntarily testified as a prosecution witness, without a plea agreement, even though charges were still pending against him. Michael had been offered a plea agreement with a maximum of 22 years and turned it down.
Michael testified for the prosecution and admitted his involvement in the robbery. Michael testified he told his girlfriend, Felecia Hernandez (Felecia), about the large amount of money that was kept at the store to cash checks. He also told Felecia that the store owed him. Felecia told her brother, Francisco, about the cash. Francisco said he was going to get his friends together to rob the store and asked Michael more questions about the store.
Michael testified the robbery was Felecia's idea. Felecia kept telling Michael that Francisco would do something bad to him if he did not go through with the robbery. Michael warned Francisco that he would be recognized on the store's video cameras since he used to work there. Francisco told Michael not to worry, and that he had people who would take care of Michael if he was locked up.
Michael testified he was not a member of the Fresno Bulldogs gang. However, Michael knew that Francisco was a member of a gang and he was known as "Bandit." Michael was afraid of Francisco because of things he had heard about Francisco and his friends.
On the day of the robbery, Francisco repeatedly called Michael and told him to pick up [Petitioner]. Michael knew [Petitioner] used to date Felecia, and that [Petitioner] and Francisco were good friends. [Petitioner] told Michael that they called themselves the "Primos" gang, and [Petitioner] had a dog paw tattoo.
Around 8:00 p.m. on the night of the robbery, Michael and Felecia were in Michael's black car and they picked up [Petitioner] Michael drove Felecia and [Petitioner] to the Fresno apartment where Francisco lived with his girlfriend, Celena Gonzales (Celena). Francisco was there with several other men. Francisco told Michael that they were going to rob the store that night.
Michael testified he got into his black car with Felecia. Francisco, [Petitioner], Benjamin, and Johnson got into Celena's silver car. Francisco had a silver revolver. Michael drove to Porterville, and the silver car followed him. Michael knew he was going to Porterville to rob the store with Francisco, [Petitioner], Benjamin, and Johnson. Michael testified they used two cars so they could use one car for the robbery, and the other car for the escape.
Michael stopped at an orange grove about a half mile from the store, and the other men arrived in the silver car. Michael, [Petitioner], Francisco, Benjamin, and Johnson got into the silver car and headed to the store, while Felecia stayed behind in the black car. Michael saw a baseball bat inside the silver car.
Michael drove the silver car to the store and parked on the side of the building. Both Francisco and Johnson had handguns, and [Petitioner] had the baseball bat. Michael did not realize his brother David was working at the store that night.
Michael stayed outside the store while Benjamin, Francisco, [Petitioner], and Johnson entered the front door. Michael hesitated and then he entered the store. Michael wore a mask but it did not completely cover his face. Michael walked to the back of the store and found Yassen lying on the hallway floor, moaning and holding his head. Francisco and [Petitioner] were standing next to Yassen, and Francisco had a handgun. One of the men told Michael to get the money. Michael walked past Yassen, used the knife to open the office door, and took the cash from the office.
Michael walked out of the store's back door. Francisco pulled up to the back door in the silver car and Michael got in. [Petitioner], Benjamin, and Johnson were in the store for a few more minutes, and then they walked out of the back door and got into the car. Francisco drove away from the store at a fast speed.
Michael testified Francisco drove the silver car to meet Felecia, who was still waiting in the black car. Francisco put the masks, guns, and cash in the trunk of the black car. Francisco told Felecia to leave in the silver car. Michael and the men got into the black car, and Francisco told Michael to take back roads to Fresno.
Michael drove the men to [Petitioner's] house in Fresno, and Felecia met them there. Francisco took the guns and money out of the car, and everyone went into [Petitioner's] house. Michael testified that [Petitioner's] girlfriend was also there. Francisco counted the robbery money in the presence of [Petitioner], [Petitioner's] girlfriend, Felecia, Benjamin, and Johnson. Michael thought they stole about $130,000. Francisco divided the robbery proceeds and gave $20,000 to each man, including himself. Francisco gave the rest of the money--about $50,000--to Michael and Felecia.
Later that night, Felecia dropped off some of the money with her cousin. Michael and Felecia kept the rest of the money and drove to Stockton. However, Michael started to receive cell phone calls and text messages from other store employees who said they knew Michael committed the robbery. Michael learned the police were looking for them.
Michael testified that he decided to call the police. Felecia told Michael to say they were in Sacramento and were not involved in the robbery. Michael and Felecia separately met with the police. Michael initially told Detective Pinion that he was not involved in the robbery and gave the story that Felecia had suggested. Pinon advised him that Felecia had already revealed the names of the robbery participants and they were all in custody. Michael confessed to his involvement.
Felecia's trial testimony [FN 5]
FN 5. Felecia pleaded guilty to kidnapping and conspiracy to commit robbery, with a maximum term of nine years, and she agreed to testify truthfully for the prosecution pursuant to her plea agreement.
Felecia also testified for the prosecution and offered a slightly different story. Felecia denied pressuring Michael into participating in the robbery or forcing him to tell others about the money at the store. Felecia testified that Michael told her the Chevron store had lots of money on Fridays and Saturdays, and they "owed" him. Felecia asked Michael if he was sure that he wanted to do it. Michael said that if he could not get Francisco and his friends to perform the robbery, he would find someone else to do it.
Felecia knew Francisco and [Petitioner] were friends. She knew Francisco was a member of the Fresno Bulldogs, he had gang-related tattoos, and he was called "Strange One" and "Bandit." Felecia had dated [Petitioner] several years earlier, and she suspected [Petitioner] was a member of the Fresno Bulldogs because he had a "Bulldogs" tattoo on his hand. [Petitioner] used the nicknames "Mix" and "Little Loony." Johnson was Felecia's cousin.
Felecia testified the group planned to commit a robbery in Porterville instead of Fresno, because she was worried their group would be known in Fresno. They planned the robbery a few hours before it happened when they were at Celena's house in Fresno. Celena, Michael, Benjamin, and another man were at the house. Felecia testified she stayed in the house while the others went outside to talk about the robbery. [Petitioner] was not initially there, but he arrived later.
After the meeting at Celena's house, Felecia drove Michael's black car to Porterville, and [Petitioner], Michael, Francisco, Benjamin, and Johnson followed in a silver car. They followed Michael's directions and met in a certain location away from the store. The men left in the silver car and Felecia knew they were going to rob the store. She stayed behind and waited in the black car.
After the robbery, the men met Felecia and they exchanged cars. Felecia drove the silver car back to Fresno and met the men at [Petitioner's] house.
[Petitioner], Johnson, Benjamin, and Michael were there. Michael had the money from the robbery, but Felecia claimed she was not present when the money was counted and distributed.
Felecia and Michael left [Petitioner's] house, and she gave some of the money to hercousin. Michael became nervous when he received a telephone message from "his old boss" that the police wanted to talk to him. Michael told Felecia what to say if they were caught. Felecia told him that they needed to get rid of the money. Felecia put the money in a purse and hid the purse in the bushes.
Felecia admitted that she initially lied to Detective Pinon when he asked her about the robbery. Felecia decided to tell the truth after she learned the store clerk had been injured and could die, and that she could be charged with murder and go to prison. She identified defendant, Francisco, Johnson, Michael, and Benjamin as the robbers. Felecia also showed the officers where she threw the bag of money in the bushes, and it contained nearly $11,000.
Celena was Francisco's girlfriend. Celena testified that defendant, Francisco, Benjamin, Johnson, Michael, and Felecia met at her apartment on the evening of the robbery. [FN6] The group left in a black car and in Celena's silver car. Celena thought they were going to a party. Felecia drove the silver car, and Celena thought defendant was in one of the vehicles. Celena did not go with them.
FN6. Detective Pinon testified that when he initially interviewed Celena, she did not mention that defendant was at her house on the night of the robbery. Celena said she did not know anything about the robbery until she found out her silver car was in a tow yard. (RT 789--790)
Michael and Felecia directed the officers to the Fresno residences associated with defendant, Benjamin, and Johnson, and officers searched those locations. The officers found large amounts of cash and gang paraphernalia at the homes associated with Johnson and Benjamin.
At 4:30 a.m. on January 27, 2008, just two days after the robbery, officers searched the residence of defendant's grandmother. Defendant lived there and was taken into custody. The officers found several pieces of evidence in a particular bedroom: a Fresno Bulldog T-shirt, baseball cap, and a blanket displayed on the wall; types of gang writing; a baseball bat; and two crowbars. The Bulldog apparel and writings were consistent with gang indicia. The officers also found over $15,000 hidden in the same bedroom. Some of the cash was in a wallet, which contained defendant's identification card. The officers found additional cash in a dresser, along with a letter addressed to defendant.
After the robbery, Francisco, Celena, and Johnson escaped to Texas, and they lived there for about one month. Francisco and Johnson were later arrested in Texas.
DEFENDANT'S POST-ARREST INTERVIEW
Several hours after defendant was arrested, Detective Camacho conducted a tape-recorded interview with him. Defendant was advised of and waived his constitutional rights and agreed to answer questions. The audiotape was played for the jury.
Detective Camacho advised defendant about the facts of the robbery. Defendant initially denied any involvement and asked if someone was "pointing fingers" at him. Camacho explained he had some information that defendant was at the store. Camacho asked if he had friends named Benjamin, Francisco, and Johnson. Defendant said he recently met Benjamin, he "barely" knew Johnson, and he knew Francisco better.
Camacho asked defendant if he was "a bulldog," and defendant said yes.
Defendant said his nickname was "Little mini boy."
Camacho asked defendant if Francisco gave him some cash to hold. Defendant said Francisco gave him a little money. Camacho advised defendant that the officers found over $10,000 at his grandmother's house. Defendant said "a homie" gave him that money about a week ago.
Camacho advised defendant about the circumstances of the robbery, the manner in which the clerk was beaten, and the clerk's serious injuries. Camacho asked defendant if he went to the store just for the money or to hurt someone. Defendant replied, "I didn't try to kill nobody." Camacho asked defendant how many times he hit the clerk with the baseball bat, and advised him the entire incident was on the store's surveillance videotape. Defendant replied, "Only like two, three," and "I was trying to aim for his back." Defendant said he did not intentionally hit the clerk in the head, and he did not try to kill him. Defendant thought the clerk moved and that is why he was hit in the head.
Camacho asked defendant why he was involved in the robbery. Defendant said some guy said "it was easy," but he did not know who said that, and he did not know anyone named Michael. Defendant said he went to Porterville in a silver car. Defendant said he hit the clerk with the baseball bat when they were in the back of the store, and another guy took the money. They left the store in the silver car.
Defendant asked Camacho, "Who ratted me out?" Camacho would not tell him, but urged defendant to identify the other suspects because they were not covering up for him. Camacho asked defendant to identify the driver of the getaway car. Defendant said he did not know if "Felecia's man" was driving the car. Camacho asked defendant if he was afraid of Francisco, and defendant said no. Camacho again asked defendant who was driving the getaway car, and defendant refused to say. Defendant admitted they switched cars with Felecia they returned to Fresno in a black car.
Defendant eventually changed his story about the money. He admitted they went to his grandmother's house after the robbery. He took about $17,000 as his cut, and that was the cash the officers found at his grandmother's house.
Camacho asked defendant if Felecia was with them during the robbery. Defendant refused to answer. Camacho asked defendant how he would plead if he was charged with robbery, and defendant said he was guilty.
Camacho testified that defendant was very polite, calm, and respectful during the interview. Camacho showed defendant a still photograph from the store's surveillance videotape, which depicted one of the robbers holding a baseball bat. Defendant said that he was the person with the baseball bat. Defendant refused to identify the other suspects. Camacho asked defendant if he was interested in writing a letter of apology to the person who was hurt during the robbery. Defendant said yes. Defendant wrote a note "to whom it may concern," apologized for his role in the robbery, apologized for hurting someone so seriously, wrote that he did not mean to hurt him, and he signed it.
TESTIMONY OF PROSECUTION'S GANG EXPERT [FN7]
FN7. We will extensively review Detective Yandell's testimony because defendant raises numerous challenges to the admissibility and foundation for his opinions about the Fresno Bulldogs.
Tulare County Sheriff's Deputy Yandell testified as the prosecution's gang expert. Yandell had been a peace officer for nine years, and a detective with the sheriff's department Gang Violence Suppression Unit for a little less than two years. He was responsible for investigating gang aspects of criminal cases in Tulare County, participating in proactive patrols in areas with high gang violence, contacting and identifying gang members, debriefing gang members about their criminal activities, monitoring inmate calls from the jail and gang Internet sites, and monitoring gang trends in Tulare County and surrounding counties.
Yandell was a member of Tulare County's multiagency gang enforcement team, the California Gang Investigators Associations, and the Tulare County Gang Task Force. He shared information with other gang experts and kept up to date with the habits of gang members in the area.
Yandell had participated in investigations into gang-related offenses including murder, attempted murder, felony assault, vandalism, drug sales, and jail assaults. He had authored two search warrants and participated in executing over 25 search warrants for gang-related evidence.
Yandell had taken classroom courses and video training on northern criminal street gangs, Hispanic gangs, white power gangs, prison gangs and their street influence, Asian gangs, and the Fresno Bulldogs. He also worked at the main jail for four years, and had gang-related experiences there by interacting with and classifying gang members in a custodial setting. He believed gang members were more honest about their membership while in custody because of the implications of being housed with rival gang members.
Yandell had qualified as a gang expert ten times in Tulare County and authored at least 12 opinions in the last two years as to whether particular criminal activity was performed in association with, or for the benefit of, a criminal street gang. He had prepared written and verbal expert opinions in over 20 gang cases. He had never offered an opinion that a crime was not gang-related.
Yandell's testimony about the Fresno Bulldogs
Yandell testified his primary focus was on the northern and southern gangs, which operated in Tulare County. However, he had some experiences with the Fresno Bulldogs throughout his career. The Bulldogs operated in the city and unincorporated areas of Fresno, but there were a few members who came through Tulare County. He came into contact with members of the Fresno Bulldogs when he worked at the jail. He also reviewed police reports about the criminal activities of the Fresno Bulldogs in Tulare and Fresno Counties.
Prior to Yandell's work in this case, he had conducted investigations in two other cases involving the Fresno Bulldogs, and interviewed about 20 members of the gang. He had investigated a jail assault involving members of the Fresno Bulldogs, but he did not testify in that case because the defendant entered a plea. In February 2008, he investigated Felipe Rivera, an admitted member of the Fresno Bulldogs, who was arrested for possession of narcotics for sale in Goshen.
In preparation for the trial in this case, Yandell received two hours of in-person "block training" from two officers with the Fresno County Sheriff's Department MAGEC team, who were certified as experts on the Fresno Bulldogs and participated in preparing the civil injunction against that gang. He did not receive any training from former members of the Fresno Bulldogs to prepare for this case.
Yandell testified about the creation of the Fresno Bulldogs, which was the result of a dispute within the Nuestra Familia prison gang in the late 1960's and early 1970's. A war broke out within Nuestra Familia, which spilled out of the prisons and into the streets of Fresno. The breakaway group originally called themselves "the F14." In the late 1970's, the group successfully became a separate entity and changed its name to the Fresno Bulldogs. The Bulldog gang was slightly different from other gangs because it was not associated with either the northern or southern structure, it was not allied with any other gang, and it considered both the northern and southern gangs as enemies. The Bulldogs were also different because there was no official hierarchy of shot callers, but there were still informal leaders who gained respect within the subsets.
Yandell explained there were an estimated 5,300 active members of the Fresno Bulldogs in Fresno County, with an additional 10,000 associates. The Fresno Bulldogs had started moving out of Fresno County and into Tulare County because of the gang injunction. There were under 20 active members of the Fresno Bulldogs in Tulare County.
The Fresno Bulldogs claimed the color red, but they were not loyal to the Nortenos. The Bulldogs used the insignia from Fresno State University, and common signs and tattoos included dog paws and bulldog faces from Fresno State apparel.
Yandell explained the California Department of Corrections (CDC) classified the Fresno Bulldogs as a "disruptive group" for housing purposes, ...