United States District Court, E.D. California
XAIVER S. WILLIAMS, Petitioner,
L.S. McEWEN, Respondent.
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 2008 judgment of conviction in the Sacramento County Superior Court for assault with a firearm, discharging a firearm at an inhabited dwelling, second-degree murder, and several special allegations, for which he was sentenced to a state prison term of seventy-two years to life. He asserts nine claims challenging his conviction and sentence as violative of his Constitutional rights. (ECF No. 5 ("Ptn.").) Respondent has filed an answer to the petition, (ECF No. 23), and petitioner has filed a traverse, (ECF No. 33). Upon careful consideration of the record and the applicable law, the undersigned will recommend that the petition be denied.
I. Factual Background
In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, set forth the relevant factual background as follows:
The Consolidation of the Cases
In case No. 05F06418, the People filed a complaint on July 11, 2005, charging defendant with assault with a firearm on July 7, 2005. (The offense of discharging a firearm into an inhabited dwelling was not alleged at this time.) In case No. 05F11333, the People filed a complaint charging defendant with murder on December 22, 2005, which is not in the record. After preliminary hearings were conducted and defendant was held to answer in both cases, the People filed a consolidated information.
Case No. 05F06418
Sacramento Police Officer Yul Alameda testified that around 7:45 p.m. on July 7, 2005, he took a brief statement from Marlon Leon, the victim, at his residence on Stoddard Street in Sacramento County, and then later did a more complete interview at the hospital.
Officer Alameda found Leon sitting in the threshold of the open front door of his home; his right foot, and its big toe in particular, was bloody. There were shell casings in the roadway in front of the house and two or three bullet holes a few feet to the side of the front door.
Around 10:00 p.m., Officer Alameda interviewed Leon at the hospital. Leon said that earlier that day he and Iris Luna had driven from his house to a nearby fast-food restaurant. He saw a group of five or six Black males there, including Joey Smith. Smith put his hand in his front waistband area. As Leon pulled out of the parking lot and looked back in his rearview mirror at the group, he saw Smith raise his shirt and display what appeared to be the grip of a handgun. After Leon reached home, he saw the group walking down the street toward his house. They tried to provoke him to come out to the street. As he started to walk inside, he saw two members of the group, Smith and "Sandman, " shooting toward the house and aiming at him. ("Sandman, " whose real name Leon did not know, was 16 or 17 years old, stood around five feet nine inches tall, and weighed 160 pounds.) A shot hit Leon's right big toe. The group then ran off. Leon claimed he did not fire any shots or even have a gun.
Sacramento Police Officer Mario Valenzuela testified that in the early morning of July 8, 2005, he obtained a statement from a suspect in the shooting, "Sandman" (defendant).
Defendant claimed that Leon and an associate of Leon's named Sir Byron had the habit of assaulting defendant when they crossed paths with him. On July 7, as defendant walked with friends down Stoddard Street past Leon's house, Leon brandished a revolver at defendant and his group.
Defendant did not say what his friends did then. He did say, however, that an older male acquaintance, whose name he did not know but whom he called an "OG, " FN2 came by, put a handgun on the hood of a car, and said something like, "[I]f he [defendant] wanted to use it, he could, but he [the O.G.] wasn't going to hand it to him. He [defendant] would have to pick it up himself."
[FN2: As the People's gang expe[r]t testified at trial, "O.G." is a standard abbreviation for "original gangster, " meaning a senior gang member who makes decisions for the gang and gives orders to junior members. Defendant testified, however, that to him the term meant "old guy" (or "older adult male") and had nothing to do with gangs, though it might have done so in the past.]
According to defendant, Leon called Sir Byron, who came over. Meanwhile, Leon brandished his weapon at defendant, his friends, and children in the vicinity. Defendant heard Leon fire a shot. In response, defendant picked up the gun from the car hood and fired several rounds toward Leon and Sir Byron. He ran away, throwing the gun into someone's front yard along the way. At the time of the shooting, he was not aware of anyone there (aside from himself and Leon) having a gun.
Case No. 05F11333
At the preliminary hearing, David Wong, who had accompanied the victim on the date of the crime, and Kalvin Williams, who had accompanied defendant, testified, as did Sacramento Police Detective Thomas Higgins. FN3 Wong and Williams portrayed the incident as a classic gang confrontation, but differed as to who started it.
[FN3: Neither Wong nor Williams was available at trial. Their preliminary hearing testimony was read to the jury during the People's case-in-chief. So far as the record shows, Williams was not related to defendant. Wong is Hispanic on his mother's side and identifies with that ethnicity for gang purposes.]
Around noon on December 22, 2005, Wong was with Danny Valdez, his 17-year-old cousin, in the "Freeport" neighborhood of Sacramento. FN4 After leaving an acquaintance's house, where they had two or three beers apiece, they walked toward a park down the street. Neither was under the influence of alcohol or drugs. Neither had weapons. Valdez was wearing a white T-shirt, a red hat, and blue jeans.
[FN4: According to Detective Higgins, the neighborhood is called Freeport Manor.]
At the corner of 38th Avenue and McLaren Avenue, Wong and Valdez encountered defendant, whom Wong did not know but had seen in the neighborhood. Defendant was standing in the middle of the street; a Black male unknown to Wong was walking behind defendant, at least 30 feet back. Defendant was staring at Wong and Valdez and mumbling. They crossed the street to find out what he wanted.
Defendant said: "[Y]ou are in my hood" (or something similar). He also told Wong: "I know you, but I don't know your cousin." Defendant pushed his fist into Valdez's chin. Wong stepped between them and told defendant not to do that. Raising his fist to Wong, defendant told him: "[S]tay out of my area."
The man who had been walking behind defendant (i.e., Williams) came running up to the left of Wong. Expecting Williams to hit him, Wong turned that way. Defendant and Valdez then started fighting, with defendant's back toward Wong. Wong could not see who threw the first punch. When Wong turned back the other way, Williams hit him in the face. Wong slipped and fell. As he started to get up, he heard, but did not see, two shots fired. Then he saw Valdez hit the ground.
Defendant was holding a smoking silver gun that looked like a.38 revolver, standing over Valdez and pointing the gun at him. Defendant then put the gun in the front of his pants and ran off with Williams down McLaren Avenue. Valdez subsequently died of his injury.
Having been granted use immunity, Williams testified:
He was under 18 years old. He had suffered a juvenile adjudication for theft.
He encountered defendant in the neighborhood on the morning of December 22, 2005. They shared a 40-ounce beer at an acquaintance's house, but did not drink anything else or do any drugs.
After leaving, they walked to and from a Walgreen's on Freeport Boulevard, three or four blocks from the house. Defendant walked ahead of Williams, who was text messaging as he walked. When defendant reached the intersection of 38th Avenue and McLaren Avenue, Williams was in midblock, at least 30 feet behind.
Williams saw two Hispanic-looking strangers approaching defendant at the intersection, apparently trying to block defendant's path. One said something like "[W]hatch [sic] you looking at[?]" The other was trying to hold him back from attacking defendant. The first man (Valdez) was face-to-face with defendant; the second man (Wong) was face-to-face with Williams. Defendant did not do or say anything challenging; he asked the strangers to go on and leave him alone. Williams did not see any guns, but the strangers' outfits might have hidden weapons.
Valdez said something in Spanish about a gang. Defendant replied, "[T]his Freeport." Valdez "was just like F [___] Freeport. Man, this is Norte and then just socked him." FN5
[FN5: Williams claimed he had never heard the term "Freeport Crips." He was not a member of that gang and did not know if defendant was. He had heard that "Norte" is a gang.]
Wong hit Williams, who retaliated; Wong fell, then got up immediately and came at Williams again. Williams could not see the fight between defendant and Valdez after the first punch.
As Wong came after Williams again, Williams heard one shot; he did not see who fired and did not know if anyone had been hit. He ran to his grandmother's house a couple of blocks away; defendant caught up with him at the door. Williams's sister opened the door to them. Williams's mother, who lived nearby, came in, saying she had heard about the shooting. Defendant and Williams claimed ignorance.
Defendant got a ride from Williams's mother. Williams did not go along. He did not know where she was going to drop defendant off.
The police interviewed Williams about the shooting that evening. Confronted with the interview transcript during the preliminary hearing, Williams claimed he did not remember saying that "Sandman" told Williams, "I can't believe I just shot... this dude" and urged Williams not to tell anyone about it. Williams also claimed he did not remember saying that Wong might have been trying to break up a fight between defendant and the victim, or that Williams heard two gunshots, or that he did not know defendant.
Detective Higgins testified:
Around 6:20 p.m. on December 22, 2005, Detective Higgins interviewed Earnest Ware about an incident that had occurred at approximately 2:45 p.m. outside the home of Ware's cousin on McLaren Avenue. FN6 While watching television there, Ware heard arguing outside and went to the front door, which was open behind a closed security door.
[FN6: Ware testified at trial that the house actually belonged to his wife's cousin, who was not there that day.]
As Ware opened the security door and looked out, he saw someone falling and spinning backwards; then he saw another person pull a chrome or silver handgun out of his waistband and fire two shots at the first person. The shooter was a light-skinned Black or mixed-race male, 5 feet 10 or 5 feet 11 inches tall, weighing 150 to 160 pounds, with bushy hair pulled back into a ponytail, wearing a dark sweater or jacket and blue jeans with white spots on them.
After the victim fell, the shooter's friend said, "[L]et's go." They "trotted" past the house. Ware called 911.
Detective Higgins showed Ware two photographic lineups, one including defendant, the other including Kalvin Williams. Ware could not identify Williams, but said defendant looked like the shooter.
We first recount the evidence pertaining specifically to each incident, then follow with the gang expert testimony.
Counts one and two
Marlon Leon testified:
On July 7, 2005, he was 23 years old and on informal probation. FN8 He and defendant, whom he knew as "Sandman, " were once friends, but had not been for some time before that date. Leon had done nothing to create problems; people in the neighborhood just stopped getting along.
[FN8: He did not specify the offense for which he was on probation at that time.]
In July 2005, Leon was staying in his grandmother's house on Stoddard Street with his girlfriend, Iris Luna. Defendant had visited him there when they were still friends.
On the afternoon of July 7, 2005, Leon and Luna decided to go to A & W, a nearby fast-food restaurant. Leon drove Luna's white rental car and she rode as a passenger.
At the A & W parking lot, Leon saw defendant's friend Joey Smith, with whom Leon had "problems." Luna told Leon that Smith was reaching down as if to pull something out of his sock. Fearing trouble, Leon did not go into the restaurant.
Leon drove next door to the Airway Market, where he saw defendant with three to five friends. Defendant and another man were running out of the store. Leon saw one [member] of the group using a cell phone and another holding a gun.
Leon yelled something to them because he thought they were about to jump him. Then he hopped back in the car and drove to his grandmother's house, "doing a hundred all the way[.]" He owned a gun, but did not have it in the car.
Leon and Luna ran into the house. Leon grabbed a cordless phone and called his best friend, Sir Byron (a person a little older than himself), who did not get along with defendant's group. Leon wanted Sir Byron's help because defendant and his group had come running up there; there were "like 30 people in front of my house." All the neighbors were also outside.
Leon went to the garage to get a.38 revolver, which he set down in the hallway by the front door. Sir Byron was still on the phone, but never reached the scene.
Leon and Luna went outside to confront the crowd, which included defendant, Joey Smith, and Kalvin Williams; it also included a female who was calling out Luna to fight, egged on by the others. They were standing by the white rental car Leon had parked on the street. Amending his prior testimony, Leon now recalled getting two guns from the garage, one of which (a.38 revolver) he was holding as he went outside; the other was for Luna, but he did not remember if she had picked it up or if it was still in the hallway.
Smith ran up onto the driveway. Leon told him to get away before something happened. Leon did not see Smith with a gun at any time during the incident.
A neighbor urged Leon to go inside. As Leon tried to do so, shots were fired from defendant's position. Leon saw defendant pull out a gun and shoot toward Leon and the house. He did not see anyone else with a gun.
The last shot hit Leon in his big toe, breaking three bones. It took him four to six months afterward to walk correctly. He was still in pain.
After being shot, Leon walked inside, then came back out and fired one or two shots, aiming toward defendant. The crowd took off running.
Leon was reluctant to testify because he still had "problems on the street" with defendant's friends. Recently, defendant's brother had confronted him several times in the neighborhood, threatening to kill him one day. Defendant had called him a snitch and thrown rocks at his car.
Leon admitted a felony conviction for assault with a deadly weapon in 2005. FN9 During his time on the stand, he was also shown to have made numerous prior inconsistent statements to the police and others.
[FN9: He did not testify as to his sentence for this offense.]
Luna testified, telling roughly the same story Leon had told. FN10 Like him, she was impeached with prior inconsistent accounts.
[FN10: Her account differed on three points: (1) she did not mention any challenge to her to come out and fight; (2) she saw Smith as well as defendant firing; and (3) she saw only one gun in the house, although Leon had tried to get her to testify that there were two.]
Officer Mario Valenzuela testified at trial, stating that the police had not found the gun defendant used.
Sacramento Police Officer Denise Wong testified that she found ten.40-caliber shell casings on the street outside the victim's house, and two spent bullet rounds, one on the street and one in the trunk of a parked white Hyundai; she also saw three bullet holes on the outside of the house. FN11 Inside the house, there was a spent bullet round close to the front door. There was blood in the front doorway and on the front step. In the driveway, there was a parked brown Chevrolet with body damage, leaking gasoline.
[FN11: A firearms expert opined that all the shell casings came from a single.40-caliber weapon, while the spent bullets came either from a single.40-caliber weapon or from two similar ones. (He also opined that a.40-caliber weapon can fire smaller-caliber ammunition, but was not specifically asked about.38-caliber ammunition.) A forensic investigator testified that the shell casings and bullet rounds did not produce latent prints. Defendant and Leon were tested for gunshot residue, but the tests did not yield highly probative results.]
The defense called police officers and the prosecutor's investigator to show Leon's and Luna's prior inconsistent statements.
Defendant testified on his own behalf as follows:
In July 2005 he was 16 years old. He lived just outside the Freeport Manor neighborhood, but had lived in it for years, and his grandmother still did. He knew gang members there and "associated" with them as an acquaintance, but was not in a gang. He had been called "Sandman, " his present nickname, since he was little.
On July 7, 2005, defendant and a few friends, including Williams, were at the market when Leon drove up in a white car with Luna and yelled at them. After words were exchanged, he drove off, saying, "I'll kill you."
Defendant and his friends walked toward the house of a friend's grandmother, a route which happened to take them past Leon's residence. There were five or six in the group, including a 12-year-old. Defendant did not have a gun.
As they passed Leon's residence, Leon was standing on the sidewalk; he threw his hands up as if to challenge them, then walked away toward his parked Chevrolet in the driveway. Two of defendant's friends started walking toward Leon, followed by defendant. A few neighbors were outside.
Leon opened the driver's-side door of the Chevrolet and pulled out a revolver and a cell phone. He walked up to his porch, where Luna was already standing. As Leon and defendant's group argued, Leon waved the gun back and forth toward them. More people from the neighborhood "just started popping up, " including some defendant knew only by street name, such as "O.G.s and things like that." Defendant went to the back of the rental car Leon had parked on the street.
Smith ran up onto Leon's lawn. Leon pointed his gun at Smith and told him to back up; Smith returned to the street. Someone threw a beer can at the porch. Smith ran to the passenger side of the Chevrolet in the driveway and began to kick it, while Williams and his sister kicked the rental car in the street. By now there were 20 to 25 people in front of the house, including children and neighbors.
Leon fired a shot at Smith. Leon then got a bat and held it under his arm, still holding his gun in one hand and pointing it at the crowd as he talked on his cell phone.
As defendant stood by the rental car, "an O.G.-this dude who we-everybody in the neighborhood referred to as O.G.-old adult male" said he had a handgun that he would not give to defendant, but defendant could use it; "O.G." then put a semiautomatic on the car. "O.G." was Black and in his 40's, about defendant's height and weighing around 180 pounds, with braided hair; defendant had seen him more than 10 times in the neighborhood riding a bike, but did not know his name or where he lived. After putting the gun down, "O.G." "took off." FN12
[FN12: On cross-examination, defendant admitted that "O.G." at one time "[p]robably" meant "original gangster, " but claimed that it no longer did. Since 2005 he had heard the term used only to mean "older people."]
Just then, Leon fired at defendant. In a "quick reaction, " defendant picked up the gun from the car and fired toward Leon until the gun ran out of ammunition. He aimed not at Leon but "above him." He did not know whether any of his shots hit Leon.
The rest of the crowd started running when the shots began. Once out of ammunition, defendant did the same. As he ran, he threw the gun into someone's yard on McLaren Avenue.
The jury heard the preliminary hearing testimony of Williams and David Wong, who were unavailable at trial.
Earnest Ware testified that while watching TV at his wife's cousin's house on McLaren Avenue on December 22, 2005, he heard noise outside. As it continued, he opened the front security door and looked out. He saw four males outside, two Hispanic and two Black (one of whom was "like albino kind of looking"), facing each other and arguing loudly. (He could not identify anyone in the courtroom with certainty as one of the four; however, he saw one person who was light-complected, like one of those at the scene.) He could not hear what they were arguing about. He did not see any physical conflict.
One of the young Hispanic males stepped back; then two shots were fired and he went down. The gunman put the weapon back into his pocket or his waist.
Ware went inside and called 911. As he spoke on the phone, he heard one of the Black males holler, "[C]ome on, let's go, " then saw them cross in front of the security door and run across the lawn. The other Hispanic male was hollering, "Call an ambulance."
Ware was interviewed by Detective Higgins, who showed him a photo lineup in which he was able to identify the shooter.
Brian Bagerly, who lived in the area of the crime scene, heard the sound of a backfire on the afternoon of December 22, 2005, but did not think anything of it. As he drove up to the scene, he saw one boy holding another, screaming, "[H]elp me. My cousin's been shot." Bagerly called 911 on his cell phone. He did not see any guns or anyone leaving the scene.
Sacramento Police Officer Dustin Smith and other officers at the scene did not find any guns. Receiving a report of suspects in a white Ford Explorer in the area of Zelda Way, Officer Smith found and detained a female Black adult and two other subjects.
Marian Vanhook, the mother of Williams, testified that on the afternoon of December 22, 2005, she picked up her daughter from school in her white Ford Explorer, then drove to her grandmother's house on Zelda Way to pick up her son. As she neared her grandmother's house, she noticed that police officers had blocked off a nearby street. She asked a young man walking down the street what had happened and was told someone had been killed. When she arrived at her grandmother's house she was upset to find defendant there with her son because defendant had been having trouble with men in the neighborhood and she did not want Williams hanging out with him. She asked if they knew about what had happened. They said they did not. She told Williams she was taking him home with her and asked defendant if she could drop him off somewhere because he could not stay there. He said yes and directed her to an apartment complex near Florin Road and Greenhaven Drive where he said he was going to visit a friend; he got out there. Williams was not with them because he had stayed behind to pack clothes. FN13 She did not see any guns on defendant. After she dropped him off, she returned to the Zelda Way house, where the police contacted her; they searched the Explorer, but did not find any weapons.
[FN13: Shown items of clothing in an exhibit, Vanhook identified a blue hat as her son's.]
Forensic pathologist Dr. Mark Super opined that Danny Valdez died of a single wound from a gunshot which entered at the neck, went through the right carotid artery, fractured the second vertebra in the neck, cut the spinal cord, causing an acute subarachnoid hemorrhage, then exited from the back of the neck. Soot on Valdez's chin and around the wound showed that the shot had been fired from close range or a position possibly "loosely in contact" with the skin. The trajectory of the bullet showed that it had moved slightly upward through the body. The evidence was consistent with Valdez taking a step backward while looking down to his right as the shot was fired. Valdez also had abrasions on his hands that could have come from a fistfight.
Sacramento Police Officer David Topaz testified that when questioned at the scene, David Wong smelled heavily of beer.
Sacramento Police Officer Frank Woo testified that items of clothing seized at the scene included a red cap and a blue cap. The blue cap said "Freeport" on the back and "Cali Kal" on the front. FN14
[FN14: Kal is a short form of Williams's first name.]
Forensic laboratory analysts testified that blood samples from Valdez's autopsy showed cocaine metabolite in his system and a blood-alcohol content of.13 percent. Based on the blood samples and the preliminary hearing transcripts, a clinical neuropsychologist opined that the substances in Valdez's system on December 22, 2005, could have caused him to feel paranoid and to act aggressively and recklessly.
Defendant testified as follows:
He met Williams at someone's house in the neighborhood on the morning of December 22, 2005; then they went to another acquaintance's house and stayed a few hours, sharing a 40-ounce beer. After that, they walked out to do an errand, with Williams lagging behind because he was text messaging. Williams was still behind as they approached the corner of 38th Avenue and McLaren Avenue.
Defendant was dressed in a black coat, blue jeans, and a black knit cap; Williams was wearing dark clothes, including the blue cap introduced as an exhibit. FN15 Defendant did not have a gun.
[FN15: Defendant did not state what kind of hairstyle he was wearing that day.]
Two individuals approaching (Valdez and David Wong) caught defendant's attention because they were talking loudly and looking at him continuously. They crossed the intersection and cut him off, getting right in front of him. Valdez was wearing the red hat introduced as an exhibit and a big fluffy coat.
As they walked up to defendant, Valdez said: "What you are looking at?" (Sic.) Defendant said: "[W]hat do you mean what I'm looking at?" Valdez said: "[T]his is Norte." Defendant knew this referred to a Mexican gang called Norteños, but did not understand why Valdez was saying this to him; it made ...