The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis on his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the undersigned recommends that the petition be DENIED and that a certificate of appealability not issue.
On April 27, 2004, petitioner, a member of the Norteno street gang, shot Robert Gonzalez, Sr. ("Robert, Sr."), who associated with the rival Sureno gang, and Robert, Sr.'s son, Robert Gonzalez, Jr. ("Robert, Jr."). Lod. Doc. No. 1 at 2. Robert, Jr. died of his wounds, and Robert, Sr. was paralyzed from the waist down. See People v. Zepeda, 167 Cal. App. 4th 25, 28 (2008).
On October 10, 2006, petitioner was convicted by jury of: (1) one count of murder, in violation of Penal Code § 187; (2) one count of attempted murder, in violation of Penal Code §§ 664 and 187; and (3) two counts of assault with a semiautomatic firearm, in violation of Penal Code § 245(b). The jury also found true special allegations of: (1) personal use of a firearm, for all counts; (2) personal intentional discharge of a firearm causing death or great bodily injury, on the murder and attempted murder counts; (3) participation in a criminal street gang, on the assault counts; and (4) infliction of paralysis, on the attempted murder and one of the assault counts. ECF No. 1 at 1; RT 977:19-983:18. On December 27, 2006, petitioner was sentenced to a determinate term of 9 years, plus indeterminate terms totaling 75 years to life. RT 1014:10-1018:20.
During trial, the trial court allowed the prosecution to introduce evidence of petitioner's association with the Norteno gang, including a CD called "Smebbin' Through the Town." Lod. Doc. No. 1 at 6-7; 2 RT 531:11-536:21. The prosecution's gang expert identified petitioner as the co-writer or co-producer for six of the twelve tracks on the CD. 2 RT 532:22-533:10. The prosecution, over defense counsel's objection, played two of the songs for the jury.
The transcriptions of the lyrics do not appear in this court's version of the record, as the playback was not transcribed by the court reporter. 2 RT 535:25-26. The state Court of Appeals, however, included the transcriptions in its opinion:
The lyrics to the first track, track 2, were transcribed as follows: "(inaudible) Santos (inaudible) Representin not pretending with the 530. I carry a gat, smoke a sack, of the (inaudible.) I put Chico on the map, Fuck a bitch ass scrap (inaudible). Throw up the one four. Everyday we play this gangster role, kill a scrap we throw into a ditch. Fuck (inaudible) tricks while I talk to my click that's some serious shit. This is Chico Cali so sick with the sickness, semiautomatic sums up with quickness, so quiz this mother fucker, tuck it down. Better watch your back cause fuckin driven in town. Caught a scrap that was slippin, grab my glock (inaudible) not given a fuck. If your fuckin with me I straight fuck you myself (inaudible) Politics and gangster shit, Chevrolet, our philosophy fuckin' here we go, smoken on a pound, players from Chico, smebbin through the town, politics and gangster shit, Chevrolet, our philosophy mother fuckers here we go, smokin' on a pound, players from Chico, smebbin through the town.
Portions of the second track, track 6, were transcribed as follows: "Player I be comin' through when I'm lookin' way too fresh, and I got a glock stuck in pants mother fucker so don't test. You know nothin' about these gangsters representin' Chico, we be mobbing through your town throwin' up the one four.... [¶] We play every day all day bitch in the struggle to get paid, and with no hesitation pullin' out the .12 gauge, I'm coming way too sick man, it sounds like I've been blessed, and when I'm on the block I look my best, I look too fresh, I'm a straight-up hustlin' pimp, mother fucker can't you see, what you got one fine-ass bitch trick, I've got like two or three, so you mother fuckers want to kill (inaudible) guard your house and load the gate mother fucker I'm about to retaliate, creepin' up in your window, puttin' a slug into your face, slippin' and sliding outta the scene so bad I don't catch a case, (inaudible) from almighty Chico, oh you know we don't have a play, when I realize hangin' ain't gonna happen just doing our gangster thing, I'm a hoggin' doggin' player bitch and I been that way so long, just take a hit of the dojo weed as you're listenin' to this song, take a 40 (inaudible) hit that shit until it's gone. [¶] ... [¶] (Inaudible) blunts and broken jugs (inaudible) lift it on my homie's back and (inaudible) Northside rider 'til I die, throwin' fists while (inaudible) tryin' hard to stay alive, well we survive this shit through the streets of Chico Cali, this Mr. Ish, with a bit of sickness, Northern Cali's where I be with my homies next to me, ready to ride and ready to see ready to make these scrapas bleed hit the spot and make it crack, with a fifth of the cognac, 530 and we go blow, with my .44 I'll let 'em know, it's northern Cali we'll (inaudible) so we come up. Rollin' hard I give a fuck, I'm runnin' up flamed up, 'cause I'm feeling luck, it ain't no game and my homies bring pain through the thunder and the rain, don't blame me I be outta the double V like a G I stay high, northside is how I ride and that's how it's gonna be, this is VCN write it N--O--R--T--E. [¶] ... [¶] Chico Chapmantown (Inaudible) hosin' up off the strip, we (inaudible) and damn sure we (inaudible) Nortenos collide we ride, pullin' the homicide, we be comin' through your town, like we livin' so fresh, you old bitch ass scrap better shove up your vest, (inaudible) puttin' to rest, lookin' at my barrel with your very last breath and that it was kept, a 40 and a blunt with a Hennessy fifth, mobbing through the town, pullin' that gangster shit puttin' it down for that Norte click they say only the strong survive but that's only just a lie, the biggest mother fucker caught steel between his eyes, now he's lying dead, checked out, no (inaudible) nine millimeter (inaudible) when I creep and you know is sayin' straight runnin' the gang who is the black (inaudible) the scrap's name still runnin' the same."
People v. Zepeda, 167 Cal. App. 4th at 33-34 (footnotes omitted).
Without objection, the trial court instructed the jury on reasonable doubt using CALCRIM No. 220:
A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.
In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.
3 RT 793:23-794:5; 829:14-830:26; 845:7-23.
On September 25, 2008, the Third District Court of Appeal affirmed the conviction and sentence in a published opinion. See People v. Zepeda, 167 Cal. App. 4th 25 (2008), ECF No. 18-1. Petitioner then sought review in the state Supreme Court, which was denied on December 17, 2008. Lod. Doc. 4.
Petitioner filed the instant federal petition on June 30, 2011. ECF No. 1. Respondent filed her answer on December 29, 2013. ECF No. 18. Petitioner filed his traverse on February 23, 2012. ECF No. 22.
Petition seeks relief on the following grounds:
(1) The trial court violated petitioner's due process rights under the Fourteenth Amendment when it instructed the jury on "reasonable doubt" using CALCRIM No. 220, because this instruction "fails to convey a subjective certitude of the truth of the charge"; and
(2) The trial court violated petitioner's due process rights under the Fourteenth Amendment when it allowed the prosecution to play a CD "containing irrelevant and highly prejudicial ...