FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2006 judgment of conviction for felony murder during a drug-related robbery, entered against him in the Sacramento County Superior Court. He seeks relief on the grounds that: (1) the trial court's exclusion of evidence violated his right to due process; (2) his trial counsel rendered ineffective assistance; (3) the prosecutor committed prejudicial misconduct by making false and misleading statements; and (4) the trial court violated his right to due process by failing to give certain jury instructions. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
Following a joint trial, a single jury convicted co-defendants Ira Gordon, Jamaur Denard Wilson, and Justin Wayne Robson of felony murder occurring during a drug-related robbery. Robson, a Caucasian, cooperated with the police and solicited incriminatory custodial statements from his African-American co-defendants, who, unlike Robson, were also gang members. He claimed his scary, violent co-defendants made him do it. The robbery, according to the prosecution, was not gang related. All three defendants ridicule Robson's lawyer for different reasons. Needless to say, he is part of central casting for this appeal.
Most of the issues on appeal are related to the court's denial of the severance motions and the difficulties that arose throughout the ensuing joint trial as three defendants pursued antagonistic defenses. Despite the formidable challenges presented by the joint trial, we conclude defendants did, in fact, receive a fair trial, and given the overwhelming evidence of guilt, any flaws were harmless beyond a reasonable doubt. We strike their parole revocation fines and in all other respects affirm the judgments for murder with a robbery-murder special circumstance and various enhancements.
FACTS In August 2004 all three defendants were about 20 years old and unemployed. When they were not involved in criminal enterprises, they filled their days with swimming, playing dice, drinking, smoking marijuana, and popping pills. The women they lived with were the apparent breadwinners. Gordon and Wilson lived with a woman named Takneeca, her infant son, and Gordon's new girlfriend, 17-year-old Amber W. Robson lived with his girlfriend and her children in the same apartment complex. Robson had known Wilson since they were in third grade together and had served time with Gordon in a correctional facility. Gordon and Wilson were very close friends.
The prosecution presented compelling eyewitness testimony about the chronology of events that occurred on the night of August 3. Amber W. testified that after a day of swimming, watching movies, and partying, Wilson, Gordon, and Robson left to go to the liquor store. Many of the young people in the neighborhood congregated in the parking lot of Ernie's liquor store. About 11:00 p.m., 18-year-old Brad Tarbuskovich arrived in his car with his mechanic friend, Will McGuire. He observed three males standing by a blue car: one 19- or 20-year-old white male with a "scratchy kind of beard" and crew cut, about five feet ten inches tall, wearing a light blue E-NYCE shirt and jeans (Robson); one five feet eight inch or five feet nine inch black male with a gold "grill," dreadlocks, a San Francisco Giants jersey, and a tattoo on his inner left forearm (Wilson); and a second black male, who appeared to be about 20 years old, five feet eight inches or five feet ten inches in height and 160 to 170 pounds, wearing a green beanie (Gordon). Tarbuskovich went into Ernie's to buy an ice cream and a soda, and when he returned the black male with the gold grill was test-driving his car with McGuire.
According to Tarbuskovich, Alvin Richardson, the eventual victim, drove up to Ernie's around 11:40 or 11:45 p.m. His girlfriend, Lakisha Grimes, was riding in the passenger seat. When she went into the store, Tarbuskovich watched one of the black males, later identified as Gordon, approach the passenger-side door and begin talking to Richardson. He eventually got into the rear passenger seat. The white male he identified as Robson got into the rear seat behind the driver. Grimes returned to the car. Tarbuskovich saw Wilson, who had test-driven his car with McGuire, standing next to the driver's window of Richardson's car, which was halfway open. He heard Gordon say, "You're going to play me like that?" He watched all three males striking Richardson. Robson pistol-whipped Richardson multiple times and then got out of the car. Grimes ran into the liquor store screaming for someone to call the police.
Meanwhile, Tarbuskovich watched Gordon and Wilson continue to strike Richardson with their fists. He heard two to three gunshots and then saw all three defendants run away. He was "[v]ery confident" of his positive identification of Gordon, Wilson, and Robson during photographic lineups.
Lakisha Grimes's testimony corroborated the account provided by Tarbuskovich, with additional flourishes. She arrived at Ernie's with her boyfriend, Alvin Richardson, and followed him into the store after Wilson approached her car and made unwelcome advances. When she got back into the car, Gordon got into the back seat and asked Richardson if he would give them a ride; Robson then got into the back seat as well. He called to Wilson several times and "kept saying he was waiting on his bro." Grimes refused to give them a ride, which provoked Robson and Gordon, who exited the vehicle. As Robson got out of the car he stated, "[F]uck this bitch and her shit." Gordon pulled out a semiautomatic handgun.
Grimes testified that Gordon told Richardson to give him all his money and everything he had in his pockets. By then, Wilson was at the driver's window, punching Richardson. Grimes ran into the store to call for help. As she returned, it looked like Richardson was trying to get his wallet out of his pocket. She then observed flashes and heard gunshots with each flash. Gordon remained in the car, and Wilson and Robson were at the driver's window. Robson was holding a gun, pointed at the ground. After the shooting stopped, the three ran away. Richardson died in her arms. She positively identified all three defendants in a photographic lineup shortly thereafter.
Amber W. testified that Wilson and Robson returned to the apartment first, looking "exhausted, kind of tired like they just, I don't know, they just looked like they just did a workout." Gordon arrived five minutes later, also looking exhausted and out of breath. He told Amber W. he could not tell her what had happened. Robson and Wilson went into a back room together, and then Gordon went into a back room with Wilson.
Robson asked Amber W. and her roommate to accompany him to his apartment because "there was hecka helicopters out there and hecka police." As Amber W. was leaving the apartment, she heard Robson tell his girlfriend, "Hide this, hide this, hide this in the safest spot." Robson returned to Amber W.'s apartment about 10 to 15 minutes later. She heard him tell Wilson and Gordon, "I pistol-whipped that nigga first." When she asked, "So you robbed him," Robson said nothing.
Amber W. saw Gordon, Wilson, and Robson splitting some marijuana, money, and pills on the counter. Gordon took about $60 from the split. When she later asked what he had done, Gordon replied that one of them was going to be in the coffin and the other in jail. He later told Amber W. that he had shot someone. Amber W. testified that she had received threatening phone calls from Gordon. Wilson also called and asked her to lie about what she had seen.
Police investigators found a total of eight baggies of marijuana in the victim's car and three spent .380-caliber Winchester shell cases. In Robson's apartment they found a revolver in a blue purse and a semiautomatic handgun wrapped in a towel, both inside a heater unit. The bullets recovered from the victim's body were fired from the .380-caliber semiautomatic handgun.
A pathologist testified that the victim sustained several blunt force injuries, bruises, and abrasions consistent with being pistol-whipped and being struck by a fist. He also sustained three gunshot wounds to the body, and all three were consistent with the victim's sitting in the driver's seat of the vehicle and being shot from the back seat on the right passenger side.
The prosecution also played tapes of conversations Robson had with each of his co-defendants, the subject of which will be discussed as relevant to the issues in which they are pivotal. Gordon ran when confronted by the police, dropping marijuana and Ecstasy pills close by. Robson was arrested, handcuffed, and then escaped. Wilson was apprehended a few days later.
In the face of this mountain of evidence against them, all three defenses were seriously anemic. None of the defendants testified, a particularly dicey strategy for Robson, who was relying on a duress defense. But he had distanced himself from his friends as soon as he was arrested, volunteering damning information against them before he was even interrogated. Gordon argued false identity. Wilson argued he was not involved in the robbery, was not seen with a gun, and was simply in the wrong place at the wrong time.
All three attempted to discredit the eyewitness testimony. On cross-examination, Tarbuskovich revealed that he was a regular user of marijuana and suffered an attention deficit disorder as a child. He testified he was not under the influence at the time of the shooting. Defense counsel tried to highlight some small discrepancies in the descriptions offered by Tarbuskovich and Grimes.
Robson, not the prosecution, called Will McGuire to testify. He candidly admitted that his memory of the events was "a blur" because he had consumed a large amount of alcohol and had smoked marijuana. He told the police that he saw a black man wearing a white shirt standing by the driver's door, "slap boxing" through the window. The black man had a gun.
Roger Ringkamp, one of Robson's neighbors, also testified on his behalf. Ringkamp is seriously disabled from burns he sustained to 45 percent of his body. He is blind and deaf on his left side. Although he had run out of his prescription for codeine on the night of the shooting, he had taken morphine around 10:00 p.m. He testified that he saw Robson standing by the pizza parlor near Ernie's liquor store at the time he heard the gunshots. After the shots were fired, Robson ran toward their apartments.
Gordon argued that Grimes referred to the black man in the rear seat as Wilson's brother Jamiere. He pointed out that Amber W. testified Gordon did not leave in a green beanie, and Grimes testified the person who got into the rear passenger seat was wearing a black Kangol-brand hat.
The jury returned guilty verdicts on all counts of murder, robbery, and the robbery-murder special circumstance, and found true all the firearm enhancements. Defendants were sentenced to state prison for life without the possibility of parole, plus additional concurrent terms for the enhancements. All three defendants appeal.
After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for rehearing. Resp't's Lodg. Doc. 8. By order dated August 19, 2010, the Court of Appeal modified its opinion but denied the petition for rehearing and declined to change the judgment. Dckt. No. 1 at 94-96. Petitioner subsequently filed a petition for review in the California Supreme Court, which was summarily denied. Resp't's Lodg. Docs. 9, 10.
A. 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 Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied ...