United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 5, 2012. On October 9, 2012, Petitioner filed a "First Amended Petition, etc." ("Pet."), the operative pleading. Respondent filed an Answer on April 4, 2013, asserting, inter alia, that Ground Five of the Petition was unexhausted. On April 22, 2013, Petitioner filed a Traverse, expressing a desire to dismiss Ground Five.
On May 1, 2013, the Court issued an "Order re Exhaustion, " ordering Petitioner to file either: (1) a document requesting dismissal of Ground Five of the Petition without prejudice; or (2) a motion for a stay. On May 28, 2013, Petitioner filed a "Motion for a Stay, etc., " evincing a desire not to dismiss Ground Five.
On June 24, 2013, the Court issued an Order deeming Ground Five of the Petition to be exhausted, denying Petitioner's Motion for a Stay, etc. as moot, and ordering Respondent to file a Supplemental Answer addressing the merits of the Petition. On August 23, 2013, Respondent filed a Supplemental Answer. On January 9, 2013, Petitioner filed a Traverse and a supporting memorandum ("Trav. Mem.").
An Information charged Petitioner with: (1) the wilful, deliberate and premeditated attempted murder of a peace officer in violation of California Penal Code sections 664 and 187(a) (Count 1); (2) assault with a firearm on five peace officers in violation of California Penal Code section 245(d)(1) (Counts 2, 3, 4, 7 and 8); (3) possession of marijuana for sale in violation of California Health and Safety Code section 11359 (Count 5); and (4) possession of a firearm while in breach of a probation condition in violation of former California Penal Code section 12021(d) (Count 6) (Clerk's Transcript ["C.T."] 206-12). The Information further alleged that: (1) Petitioner committed the offenses for the benefit of, at the direction of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1); and (2) Petitioner personally used and personally and intentionally discharged a firearm in the commission of the attempted murder and the assaults within the meaning of California Penal Code sections 12022.53(b) and (c) (C.T. 206-12).
A jury found Petitioner guilty of the marijuana and firearm possession counts, and found true the allegation that Petitioner possessed the firearm for the benefit of a criminal street gang (Reporter's Transcript ["R.T."] 2406-07; C.T. 534-35). The jury deadlocked on the other counts and on the gang allegation with respect to the marijuana count (R.T. 2402-05; C.T. 538). The court declared a mistrial as to Counts 1, 2, 3, 4, 7 and 8 (R.T. 2405; C.T. 538).
At a second trial, a different jury found Petitioner guilty of the attempted murder of a peace officer, Officer Shawn Blackburn, and assault with a firearm on three peace officers, Officers Shawn Blackburn, Christopher Kuberry and Gregory Coley (R.T. 6302, 6304-07; C.T. 6302-07). The jury also found true the allegations that: (1) Petitioner committed the attempted murder while the victim was a peace officer engaged in the performance of his duty within the meaning of California Penal Code section 664(e); (2) Petitioner committed the attempted murder and the assaults for the benefit of, at the direction of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1)(C); (3) Petitioner personally and intentionally discharged a firearm in the commission of the attempted murder and the assaults within the meaning of California Penal Code section 12022.53(c); and (4) Petitioner personally used a handgun in the commission of the attempted murder and the assaults within the meaning of California Penal Code section 12022.53(b) (R.T. 6303-08; C.T. 6303-07). The jury found not true the allegation that the attempted murder was wilful, deliberate and premeditated, and found Petitioner not guilty of the two other assaults (R.T. 6303, 6308-09; C.T. 6303, 6308-09). Petitioner received a sentence of eighty-eight years, eight months to life (R.T. 6617-19; C.T. 893-96).
The Court of Appeal affirmed the judgment (Respondent's Lodgment 1; see People v. Solano, 2011 WL 1833375 (Cal.App. May 16, 2011). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 3).
Petitioner filed a habeas corpus petition in the California Supreme Court asserting that: (1) the jury had considered evidence allegedly not admitted at trial; and (2) Petitioner's trial counsel allegedly rendered ineffective assistance (Respondent's Lodgment 4). The California Supreme Court denied the petition with citations to People v. Duvall , 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995) ("Duvall") and In re Dixon , 41 Cal.2d 756, 759, 264 P.2d 513 (1953) ("Dixon") (Respondent's Lodgment 5).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Solano, 2011 WL 1833375 (Cal.App. May 16, 2011). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
2. The First Trial
a. The People's evidence
A search warrant for the home in which Solano and members of his extended family were living was obtained based on information Solano, a suspected member of the Northside Bolen Parque gang, was selling illegal drugs from the residence. At 5:00 a.m on February 27, 2008, 13 officers of the Baldwin Park Police Department's special response team and additional police personnel executed the warrant. Officers knocked on the front door and announced their presence in Spanish and English. After hearing what sounded like someone running away from the door, officers began to forcibly enter the home. Because officers were having a difficult time prying open the metal security door, another officer broke a nearby window to cause a distraction and to see into the residence while officers continued making announcements. About 10 seconds later, as officers were entering through the front door, Solano fired a gun at them. Officers returned fire, hitting Solano in the chest and neck.
Eight people, including children, were in the home when the search warrant was executed. Guillermo Solis, the long-time boyfriend of Solano's mother, Leticia, and father of two children with her, testified he was sleeping in the living room with Leticia and their son when he was awakened by pounding on the door. After the window broke he saw police officers wearing uniforms and helmets and heard them say, "Police, open the door." Solano's younger sister, Crystal Solano, testified she was sleeping in one of the two bedrooms with three people when she was awakened by banging on the doors and windows and screaming. Crystal ran into the living room to see what was happening, and her mother was screaming Guillermo's name. Crystal heard officers yelling, "search warrant, search warrant." Crystal began pulling her mother toward the bedroom when the shooting began.
Officers recovered a revolver from under Solano's leg, 400 grams of marijuana from the bedroom, two scales and two boxes of plastic sandwich bags. Baldwin Park Police Officer Mike Hemenway, one of the officers who executed the search warrant and an expert on possession of narcotics for sale, opined, given "the packaging material, the scales, the amount of marijuana, and the firearm, " [that] the marijuana, valued at between $350 and $6, 000, was possessed for sale. Officer Hemenway explained the purpose of the firearm was "to protect [Solano] from people that want to steal from him or the police."
Baldwin Park Police Detective Mark Adams, also a member of the special response team, testified both as a participant in the incident and as an expert on criminal street gangs. In addition to testifying to the primary criminal activities of Northside Bolen Parque (vandalism, theft, robbery, witness intimidation and violent crimes), the gang's alliance with the Mexican Mafia and evidence of Solano's membership in the gang),  Detective Adams opined, "The act of shooting at a police officer, without a doubt, has an effect on [Solano's] status within the gang." Detective Adams explained, "Each and every time that a police officer is assaulted by a member of a gang, the members of that gang hold that individual in higher esteem. They know that he's ruthless, that he's basically instilled in the community a fear that the gang is willing to assault anybody." "It allows the gang to operate with impunity because they definitely don't fear that the community is going to call the police when they are that ruthless. They are willing to take out a member of the community if they are willing to take out a police officer."
Detective Adams identified photographs of graffiti taken near Solano's home approximately nine months after the incident. One photo stated, "FUCK THE PIGS!" with an NSBP notation near it; another photo taken near the first had graffiti including, "FUCK THE COPS."
Detective Adams denied on cross-examination that what occurred could have been "an attempted suicide by cop" - that is, where a person provokes officers to fire at him or her in an effort to commit suicide - even though it is likely firing a gun at 13 police officers with high-powered weapons will provoke them to fire back with potentially lethal consequences.
b. The defense's evidence
Testifying on his own behalf, Solano, who was 20 years old at the time of trial, admitted he had been associated with the Northside Bolen Parque gang since he was 16 years old. Solano claimed he was not an actual member of the gang because he had never been "jumped in, " that is, given the beating most gang members must endure to be initiated, because his brother, Oscar Solano, who was sentenced in January 2005 to life in prison, is a gang member. Solano explained he would have been permitted to leave the gang life because he had not been jumped in and had been planning to move to Washington with his pregnant girlfriend to live with her mother, who was going to give him a job.
Solano admitted he was selling marijuana at the time the search warrant was executed. He testified he was sleeping in a bedroom when he heard loud noises, banging on the bedroom door and his mother screaming his name. Solano jumped out of bed, opened the bedroom door and saw the front door shaking like someone was trying to break in; his mother also told him someone was trying to break in. Solano ordered his mother to go to her room and call the police. He then went back into the bedroom and retrieved a gun he kept for protection. As he was leaving the bedroom, he saw the window break. In response he fired a warning shot below the broken window not knowing police officers were outside. Solano explained he probably would have thrown the marijuana in the toilet and the gun out the window if he had known the police were there. Solano also testified three people in the neighborhood had been murdered a few days earlier, and he was frightened that could happen to him.
On redirect examination Solano admitted [that] harming a police officer enhances a gang member's reputation within the gang and [that], had he killed a police officer during the incident, he believed it would have enhanced his reputation within the gang.
4. The Second Trial
a. The People's evidence
Many of the witnesses from the first trial presented largely consistent testimony at the second trial. Detective Adams testified again that gangs benefit from engaging in violence against police officers because it dissuades citizens from reporting crimes and testifying against gang members and that gang members who engage in such violence gain the respect of their fellow gang members. On cross-examination Detective Adams acknowledged a gang member who kills a police officer could attract undesirable attention to the gang as law enforcement searches for the perpetrator, but denied he had seen or heard gang experts opine that murdering a police officer would cause a gang member to be ostracized.
As at the first trial, defense counsel asked whether "suicide by cop" was a reasonable explanation for Solano's conduct and urged Detective Adams to "[p]retend you're on the jury in your own mind." After Adams responded it was difficult for him to do that because he knew all the facts, defense counsel asked, "But your opinion is - " Adams responded, "My opinion is that he shot at the police to promote his gang, to promote himself, to avoid apprehension, because he has a long-standing dislike of the police. And the gang culture has taught him that the police are about the worst thing on earth and shooting at them doesn't seem like it's as awful as it would seem to regular citizens like the jury."
b. The defense's evidence
Solano testified there was an old, noisy air conditioning unit in his bedroom that was "banging and clanging" the morning the search warrant was executed even though the outside air temperature was in the 50s. Solano explained, "I like to turn it on because in the morning where my room is at, the sun always hits it... so I just leave it on so I don't have to wake up in the morning and turn it on." Although Solano testified at the first trial he woke to loud banging outside his bedroom and his mother screaming his name, at the second trial he stated his mother was screaming, but "I couldn't hear her. I don't know if she was screaming my name but she was screaming loud."
Solano also presented the testimony of gang expert Dr. James Shaw. Dr. Shaw opined that it is uncommon for a gang member to deliberately shoot at a police officer and that gangs have punished their members for such conduct because it incites the police to conduct raids and arrests in their territory and invites other forms of retaliation. Dr. Shaw also explained the increased police scrutiny damages gangs' ability to generate revenue from drug and weapon sales, which adversely affects their reputation among other gangs.
On cross-examination Dr. Shaw's credibility was challenged by the prosecutor. For example, the prosecutor established Dr. Shaw knew virtually nothing about the Northside Bolen Parque gang, was not sure if he had ever spoken with anyone from that gang and had never interviewed Solano. Essentially the only preparation he had done in connection with the case was to review an email from Solano's counsel, which was admitted into evidence, meet with counsel for about an hour and talk to Solano's mother. Dr. Shaw was unfamiliar with several specific cases in which police officers had been shot by gang members, did not know generally how many officers annually were the victims of attempted murder or assault by southern Hispanic gang members and was not familiar with a unit in the district attorney's office devoted to crimes against police officers.
The prosecutor also questioned Dr. Shaw about an internet social media profile Dr. Shaw had posted, but had removed before trial. The profile, which was admitted into evidence, stated in part, "If you don't have an Expert, the court can treat you like dirt. If you don't want time in jail, and don't want to be somebody's shemale, then tell your lawyer to call me. If you don't want time in the state pen, and don't want to be somebody's bitch-twin, then tell your lawyer to call me. If you want to be free to go home, instead of going to prison to be somebody's maricon, tell your lawyer to call me.... Your lawyer and I can work together for your defense. Judges, lawyers, and police buy and read my book (Jack and Jill, Why They Kill') all over Los Estados Unidos. When lawyers introduce me in Court, Judges and Juries respect that. Estoy serio. Rich folks have Experts supporting them in court. Why don't you?" Dr. Shaw explained he had removed the ...