The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
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 in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of life without the possibility of parole pursuant to a judgment of the Superior Court of California, County of Tulare (the "Superior Court"). On April 17, 2008, Petitioner was convicted by jury trial of first degree murder and conspiracy to commit murder. (Cal. Pen. Code §§ 182, 187). (Doc. 15, Lodged Documents ("LD") 1, p. 1; Doc. 1, p. 1). The jury found that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Pen. Code § 186.22(b)), that the murder was committed while Petitioner was an active participant in a criminal street gang (Cal. Pen. Code § 190.2(a)(22)), that Petitioner personally and intentionally discharged a firearm proximately causing the death of the victim (Cal. Pen. Code § 12022.53(d) & (e)(1)), and that Petitioner personally discharged a firearm. (Cal. Pen. 2
Code § 12022.53(c) & (e)(1)). (LD 1, pp. 1-2). Petitioner was sentenced to an indeterminate term of 3 life without the possibility of parole plus a consecutive 25 years to life sentence for the firearm 4 enhancement. (LD 1, p. 2). 5
Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate
District (the "5th DCA") which, on December 19, 2009, affirmed the judgment of conviction and 7 sentence. (LD 1). Subsequently, the California Supreme Court denied Petitioner's petition for review. 8
On August 23, 2010, Petitioner filed the instant petition, raising three grounds for relief. (Doc. 1). Respondent's answer was filed on October 29, 2010. (Doc. 14). On November 17, 2010, Petitioner filed his Traverse. (Doc. 16). Respondent concedes that the all grounds for relief in the petition have been fully exhausted. (Doc. 14, p. 6).
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
Around 6:30 p.m. on October 1, 2006, 16-year-old Robert Trevino was throwing a football with other neighborhood children on a residential street. Five Asian males approached him; one had a handgun in his waistband. Four of the males wore blue and black bandannas, covering their faces from the nose down. The one male whose face was uncovered shook hands with Trevino. He then pointed behind Trevino and Trevino turned around. The individual with the handgun shot Trevino in the head, from a distance of three or four feet. The five Asian males then fled.
Police officers arrived at the scene and found Trevino lying on the side of the road, bleeding from a head wound. A police officer checked his pulse, but found none. A .380-caliber shell casing was found in the middle of the road.
Witnesses identified four of the five Asian males as Chawa, Lavang, Aitang, and Billy Her. Her was identified as the individual who shook hands with Trevino. Chawa was identified as the person who shot Trevino.
On October 6, 2006, the police obtained and executed a search warrant for appellants' residences. Police arrested Aitang at his apartment and found writings and clothing relating to the Oriental Troops (OT) gang in his bedroom.
Police were unable to locate Chawa, but located a .380-caliber semiautomatic handgun beneath the mattress in Chawa's bedroom. Three live rounds were retrieved from the magazine.
Subsequent test bullets from the handgun were found to match the bullet retrieved from
Lavang was arrested on October 17, 2006, and Chawa the following day. Lavang admitted to the officers that he was one of the individuals who approached Trevino right before the shooting, but denied that he shot him or that the group planned to shoot him.
At trial, Lavang's former girlfriend, Tawny Chamberlain, testified that she hung out with members of the OT gang, and that, at the time of the shooting, she was pregnant with Lavang's child. Chamberlain spoke to Chawa sometime after the shooting. When she asked him why he shot Trevino, Chawa said that he "deserved it" and was "dissing the hood."
Her, who was offered a plea of voluntary manslaughter with a criminal street gang enhancement, testified as a prosecution witness. He testified that he, Chawa, Lavang, Aitang, and Chawa's younger brother approached Trevino. Her shook hands with Trevino and asked him about his brother. He denied pointing his finger to distract Trevino and he denied having any knowledge that Chawa, whom he identified as the shooter, planned to shoot Trevino.
According to Her, he overheard a conversation between Chawa and an OT gang member, Jack Noi, a few weeks prior to the shooting. Noi told Chawa that he was having a problem with Trevino in juvenile hall. Chawa told Noi "don't worry about it," and said he would take care of it.
Officer Luma Fahoum testified as an expert on the OT gang in Tulare County. According to Fahoum, the OT is a predominately Asian male gang, and the location where Trevino was shot is an area OT claims as its "turf." The Nortenos, a Hispanic gang, is a rival gang to the OT in Tulare County. The Nortenos identify with the color red, number 14, and the letter N. The OT identify with the color blue, numbers 15 and 20, and the letters O and T. But due to criminal street gang prosecutions, OT members often wore neutral colors, such as white, black and gray. As of October 1, 2006, there were about 50 documented OT members.
Officer Fahoum described the OT as the "most vicious and deadly gang in Visalia" for its size. The primary activities of the OT include murder, carjacking, witness intimidation, assault with a firearm, drive-by-shootings, robbery, and burglary. Officer Fahoum described multiple "predicate offenses" committed by various OT members.
Based on self-admissions, associations, tattoos, and clothing, Officer Fahoum opined that Chawa, Lavang, Aitang, Chawa's brother, and Her were active members of the OT. Fahoum described the Mongolian Boys Society (MBS) and the Lahu Pride Crips (LPC) as "entry-level" OT gang members. According to Fahoum, Trevino was a validated Norteno.
In response to the following hypothetical-if a group of OT members, most of whom had blue or black bandannas covering their faces, approach a rival gang member and shoot him in the head-Officer Fahoum opined that the shooting was committed in association with and for the benefit of the OT.
Chawa's younger brother testified and suggested Her was the shooter. Although Chawa's brother acknowledged that he lived with Chawa and his family in the house where the handgun was found, he claimed Her had asked him prior to the search to take and store the handgun. Chawa's brother said he took the gun and put it under the bed because he and Her were both in the same gang, the MBS.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 9 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
II. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. at 412-413.
A state court decision is "contrary to" clearly established federal
law "if it applies a rule that
contradicts the governing law set forth in [the Supreme Court's]
cases, or "if it confronts a set of facts 3 that is materially
indistinguishable from a [Supreme Court] decision but reaches a
Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams v. Taylor, 529 U.S. 326, 405-406 (2000).
A state court decision involves an "unreasonable application" of clearly established federal law "if the 6 state court applies [the Supreme Court's precedents] to the facts in an objectively unreasonable 7 manner." Id., quoting Williams, 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)(per curiam).
Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 511 (2003) (citing Williams v. Taylor, 529 U.S. at 409). In Harrington v. Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. If fair-minded jurists could so disagree, habeas relief is precluded. Richter, 131 S.Ct. at 786. As the United States Supreme Court has noted, AEDPA's standard of "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law" is "difficult to meet," because the purpose of AEDPA is to ensure that federal habeas relief functions as a "'guard against extreme malfunctions in the state criminal justice systems,'" and not as a means of error correction. Richter, 131 S.Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, 99 S.Ct. 2781, n. 5 (1979)(Stevens, J., concurring in judgment). The Supreme Court has "said time and again that 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fair-minded disagreement." Richter, 131 S.Ct. at 787-788.
Moreover, federal "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1398 ("This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that 2 the record under review is limited to the record in existence at the same time--i.e., the record before the 3 state court.") 4
The second prong of federal habeas review involves the "unreasonable
of 28 U.S.C. § 2254(d)(2). This prong pertains to state court
decisions based on factual findings.
Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's 8 claims "resulted in a decision that was based on an unreasonable determination of the facts in light of 9 the evidence presented in the State court proceeding." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500 (when reviewing a state court's factual determinations, a "responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment"). A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id. ; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).
The AEDPA also requires that considerable deference be given to a state court's factual findings. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. at 340. Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett, 393 F.3d 943, 976-077 (2004).
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record...to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
"[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." 2
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Where the state court denied the petitioner's 3 claims on procedural grounds or did not decide such claims on the merits, the deferential standard of 4 the AEDPA do not apply and the federal court must review the petitioner's 's claims de novo. Pirtle v. 5 Morgan, 313 F.3d at 1167.
The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding 9 that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).
III. Review of Petitioner's Claims.
The instant petition itself alleges the following as grounds for relief: (1) the trial court abused its discretion and denied Petitioner's due process rights when it excused juror no. 9 prior to jury deliberations; (2) excessive gang evidence denied Petitioner his right to a fair trial; and (3) Petitioner's sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. (Doc. 1).
A. Dismissal Of Juror No. 9 Violated Petitioner's Right To Due Process Of Law. Petitioner first contends that the state court's dismissal of juror no. 9 before deliberations denied him his right to due process. This contention is without merit.
1. The 5th DCA's Opinion.
The 5th DCA addressed this claim as follows:
Appellants contend that the trial court committed prejudicial error in removing juror No. 9 over objection. Respondent disagrees and argues the trial court properly exercised its discretion. We find no prejudicial error.
On the fifth day of trial, during a break in the court's instructions to the jury, juror No. 9 asked to speak to the court. The juror explained that she realized, only after Chawa's brother testified, that their sister was a student of hers:
"[JUROR 9]: ... I hesitated a lot of coming or not. I know the family of Chawa See. His sister is my student, but-
"THE COURT: You didn't know that before.
"[JUROR 9]: I didn't know that before it was coming up. I didn't even know they were from Lindsay. I didn't know until today.
"[JUROR 9]: I recognize the face of Nalae See, the sister of Chawa. And then I also have to add if you're gonna ask me, 'Is that gonna change the way you deliberate,' I don't think so, but it affects my feelings and my hearts.
"THE COURT: What do you mean, it affects your feelings and your hearts? "[JUROR 9]: Well, no, no, no. Actually, I've been thinking about Nalae, but it won't change the way-my opinions. I already made up my mind.
"THE COURT: Well, you really can't make up your mind before you deliberate with the other jurors, so I hope you didn't make up your mind yet.
"[JUROR 9]: See? I'm confusing things. I understand.
"THE COURT: I understand. "[JUROR 9]: Do I go back and say ...