FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on November 16, 2009 in the Sacramento County Superior Court on charges of special circumstance murder and robbery. He seeks federal habeas relief on the grounds that the trial court's erroneous exclusion of evidence violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Following a joint trial, separate juries convicted defendants Richard Antonio Hundley and Curtis Level Chapman of the first degree murder of David Barreda (Pen. Code, § 187, subd. (a))*fn2 and found that the murder was committed while defendants were engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)). Chapman's jury also found he used a firearm to commit the murder. (§ 12022.53, subd .(d)). Defendants were sentenced to life in prison without the possibility of parole for Barreda's murder, and Chapman was sentenced to a consecutive term of 25 years to life for the firearm enhancement. Among other things, the trial court ordered each defendant to pay a $10,000 parole revocation restitution fine (§ 1202.45) and a $30 court facilities assessment (Gov. Code, § 70373). It refused to award either defendant presentence custody credit for the time they spent in actual custody prior to being sentenced. Defendants appeal.*fn3
Hundley contends insufficient evidence supports his first degree murder conviction, the trial court prejudicially erred in allowing Chapman's counsel "to delve into the facts" underlying Hundley's prior felony conviction and in admitting evidence of Chapman's out-of-court statements implicating Hundley. He also asserts that imposition of the $30 court facilities assessment violated state and federal prohibitions against ex post facto laws. We shall conclude sufficient evidence supports Hundley's murder conviction, and the trial court did not abuse its discretion in allowing Chapman's counsel to question Hundley about his prior conviction or in admitting evidence of Chapman's out-of-court statements implicating Hundley. We shall further conclude the trial court did not err in imposing the court facilities assessment.
Chapman claims the trial court prejudicially erred in refusing to admit evidence that the individuals who threatened a key prosecution witness were gang members. We shall conclude any error in excluding such evidence was harmless.
Both defendants argue, and the People concede, the trial court erred in ordering them to pay a parole revocation fine and in refusing to award them any presentence custody credit for the actual time they spent in custody prior to sentencing. We shall conclude the trial court erred in imposing the parole revocation fines, order that those fines be stricken, and affirm the judgments as modified. We shall decline to modify the judgments to include an award of presentence custody credit given that defendants were sentenced to life in prison without the possibility of parole.
FACTUAL AND PROCEDURAL BACKGROUND
Barreda, the victim, met Desiree Santillan at a car show in 2008, and
the two began communicating over the internet. Eventually, they
arranged to meet at Desiree's home on the evening of November 24,
2008. Desiree, who was 18 years old at the time, lived with her
stepmother Heather Santillan, Heather's boyfriend Chapman,*fn4
Heather's three young sons, Tammy Turney, and Turney's son
Barreda arrived at Desiree's home late in the afternoon. He and Desiree sat at the dining room table talking, while Chapman and Hundley played video games in the living room, and Heather remained in her room. Eventually, Barreda began talking to Chapman and Hundley. Barreda "bragged" about his cars, motorcycles, guns, and access to drugs. He said that "he had a lot of different kinds of guns if anybody was looking to buy some" and pulled a gun out of his pants and showed it to Chapman and Hundley. Desiree told Barreda she was uncomfortable with him having a gun in the house. Barreda gave the gun to her, and she placed it in the trunk of Heather's car. Desiree later returned the gun to Barreda.
At some point, Turney, who had heard Barreda talking, decided to "rob" him. She took Barreda's keys and directed Hundley to go through Barreda's car and steal anything of value. Hundley did so but did not find anything except two CDs. Hundley returned the keys to Turney, and Turney put them in her pocket and went to bed.
Later, when Barreda attempted to leave, he could not find his keys. He telephoned a few locksmiths, but none came. Eventually, Desiree said he could sleep on the couch, which he did.
Sometime after Hundley searched Barreda's car, Chapman told Hundley, Barreda's "gotta go, I'm gonna smack him." "Smack" is slang for "kill." Hundley responded, "Don't kill him, just rob him regular, put your gun to his head and take his property."
The following morning Desiree helped her younger brothers get ready for school, and at approximately 8:00 a.m., she and Heather left to walk them to school. Meanwhile, Chapman, Hundley and Barreda spoke in the kitchen. Chapman, who was armed with a gun, told Barreda it was "disrespectful" for him to have a gun in the house and demanded Barreda give him his gun, which he had in his lap. Chapman and Hundley told Barreda "we're going to take your shit." A dispute followed, and Chapman shot Barreda in the back of the head.
Chapman and Hundley dragged Barreda's body from the kitchen to the garage, placed it in the trunk of Barreda's car, and drove Barreda's car to a nearby location.
Heather and Desiree returned to the house at approximately 8:30 a.m. and saw that Barreda's car was gone. As they walked inside, Heather smelled smoke and saw a broken lamp in the kitchen and Desiree's purse thrown in front of the refrigerator. Desiree attempted to call and text Barreda but got no response. Turney was the only one home, and she was acting "pretty hyper." She told Heather that she needed to talk to her outside. Once outside, Turney told Heather Barreda was dead, and they had his gun. While they were talking, Chapman and Hundley walked up to the house. Chapman had blood on his t-shirt, and Hundley had blood by his knee and on his shoe. When Heather noticed "smudges" of blood in the garage, she attempted to clean them with bleach.
The next day, November 26, 2008, Barreda's body was discovered inside the trunk of his car. He died from a single gunshot to the back of his head. He was shot with either a .38 special or .357 magnum caliber bullet.
Detectives with the Sacramento County Sheriff's Department began investigating Barreda's death. They obtained Barreda's cell phone records and began cold calling recently dialed phone numbers. On December 1, 2008, a detective dialed a number, and Desiree answered. She indicated she knew Barreda and that she lived at an address that was approximately one mile from where Barreda's body was found. She agreed to meet with the detective at his office the following day, December 2, 2008. Based on information gleaned during that interview, detectives contacted Heather for an interview. Heather was interviewed later that day and into the next.
When interviewed by law enforcement, Chapman initially denied knowing why the detective wanted to speak to him. Later, he admitted helping dispose of Barreda's body but maintained that Hundley killed Barreda "[t]o rob him of his belongings." Finally, when asked directly whether he was "the shooter," Chapman nodded his head in the affirmative. Thereafter, he told detectives that he wrapped Barreda's gun in a red towel and disposed of it in a nearby backyard. A detective searched the area described by Chapman but was unable to locate the gun. He did find a red towel and a Carl's Jr. bag containing a box of Remington .38 special ammunition.
At trial, both Desiree and Heather testified under grants of immunity. Desiree admitted that before she was interviewed on December 2, 2008, Heather told her to say that they were cousins, and that nobody was living at Heather's house except Desiree, Heather, and Heather's sons. She also conceded that Turney told her not to mention Turney to the detective. Desiree initially complied with Heather and Turney's instructions and lied about what ...