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Kirby v. Lewis

United States District Court, E.D. California

September 9, 2014

G.D. LEWIS, Respondent.


GREGORY G. HOLLOWS, Magistrate Judge.

Introduction and Summary

Petitioner, Rudy Kirby, seeks habeas corpus relief from his conviction for discharging a weapon into an inhabited dwelling, (Cal. Penal Code § 246), a gang enhancement associated with the previous charge found to be true, (Cal. Penal Code § 186.22(b)(1)), and a felon in possession of a firearm (Cal. Penal Code § 12021 (a)(1)). An attempted murder charge resulted in a mistrial, and no new trial was had on this charge. In a separate trial, petitioner was found guilty of a strike, (Cal. Penal Code § 667 section (1)). He was sentenced 15 years to life on the discharge/gang enhancement doubled to 30 years to life on account of the prior strike. A concurrent six year term, suspended, was assessed on the felon in possession charge.

Petitioner claims that his trial was flawed from a federal constitutional perspective because:

1. Accomplice testimony was not sufficiently corroborated;

2. The trial court erred in refusing to give an accomplice charge jury instruction modified as desired by petitioner;

3. The trial court erred in giving jury instructions on consciousness of guilt and flight;

4. A defective Allen charge was given to a deadlocked jury.

With the exception of Claim 4, none of the asserted claims states a cognizable claim in federal habeas corpus as there exists no established Supreme Court authority authorizing such claims. The Allen charge claim fails on the merits.

Factual Background

The factual background is taken from the opinion of the Court of Appeal on direct review:

We summarize the evidence in the light most favorable to the judgment. ( People v. Hatch (2000) 22 Cal.4th 260 , 272.) As defendant raises no issues relating to the gang enhancement, we summarize only the portion of the submitted gang evidence that is relevant to our consideration of the corroboration of the statements and testimony of Tyler and Jenna.
Tyler, Fernando N., and Landon M. were students together in auto shop class at a high school in Elk Grove. One Thursday in February 2008, Landon was caught with marijuana and he blamed Fernando for being a "snitch." After the class ended, Tyler, a friend of Fernando's, heard Landon call Fernando a "scrap." A "scrap" is a derogatory term for a Sureño gang member, treated by Sureños as essentially fighting words. Tyler told Fernando about Landon's comment.
After school that day, when Tyler met Fernando to give him a ride home in his car, they saw Landon riding his bicycle. They followed Landon. Tyler pulled alongside of Landon and told him that Fernando wanted to talk to him. Landon kept riding and ignored them. Tyler and Fernando followed Landon until they ended up at a house on Halverson Drive. Fernando told Tyler to leave, as he knew Norteño gang members lived at the house (the Norteños are a rival gang to the Sureños).
Meanwhile, Landon knocked at the door of the house. Mario Rosales, a friend of Landon's and a Norteño gang member, answered the door. Rosales testified Landon was out of breath and appeared scared and panicked. Landon told Rosales that some guys were after him in a blue Mustang; Rosales saw a blue Mustang turn the corner and drive by the house. Rosales agreed to help Landon as long as trouble did not come back towards him or his house.
The next day at school, it was rumored something was going to happen, that Tyler and/or Fernando were going to get "jumped." Tyler called his older cousin, Andy Martinez, and told him about the conflict with Landon. Tyler wanted to see if Martinez "could have [his] back." Martinez is a Sureño.
That evening Tyler, Tyler's girlfriend Jenna, and Fernando went out, using Jenna's mother's SUV-a silver Honda Pilot. At Martinez's request, Tyler drove to Martinez's apartment and picked him up. Martinez told Tyler that they were going to "handle this problem tonight." Tyler, Jenna, Fernando and Martinez went to a tobacco bar where Tyler talked to Martinez further about the conflict. As they continued talking, Martinez started telephoning people. When Martinez hung up, he told Tyler they were going to pick up some "homies." They dropped Fernando at his home and then drove to a house on Mary Lou Way in the Meadowview area.
When they arrived at the house, Martinez went inside while Tyler and Jenna stayed in the Honda. Martinez subsequently came outside with defendant, whom he introduced to Tyler and Jenna as "Loco." Defendant invited them inside the house to "chill for a bit." Inside, Tyler noticed a lot of graffiti on the walls, some of which was gang related. Martinez talked to defendant about the conflict between Tyler, Fernando, and Landon. Martinez told Tyler he did not have to worry about it anymore as "[w]e're going to do something about it." Defendant kept going back and forth from a bedroom to the living room, sometimes talking on his cell phone and one time carrying a sawed-off shotgun. People watched defendant and moved quickly out of his way. Defendant was the only one to handle the shotgun.
Tyler and Jenna wanted to leave, but Martinez told them to stick around. Eventually Martinez said they could leave, but as they were doing so, at least five Hispanic males, who appeared to be in their early 20's, entered the house. The men introduced themselves and said they were from the "BST" clique. Tyler and Jenna remained at the house.
Sometime later, defendant said, "Let's go, " and everyone stopped what they were doing and followed defendant outside. As defendant left, he was carrying a green duffel bag, which he placed in his light gray or tan Suburban. Defendant told Tyler to follow him as he had only paper license plates on the back of the Suburban and he did not want to get pulled over. Defendant and four to five BST clique members got into the Suburban. Tyler, Jenna, Martinez, and at least one person from the BST group got inside the Honda Pilot.
Tyler directed the two cars to Rosales's house on Halverson Drive. The two cars first parked across the street, but then moved to the side of Rosales's house. Everyone except Jenna got out of the cars. Jenna saw someone get a blue or green bag out of the other car. Tyler saw someone with the shotgun he had seen at the house and someone with a handgun, but testified he could not remember who was holding the guns. Tyler told detectives defendant had the shotgun. Most of the men wore blue bandanas. Martinez and Tyler walked up to the front door of Rosales's house.
Rosales was sleeping in the living room of his house. Around 2:00 a.m., he awoke when he heard a knock at the living room window. Figuring it was his older brother coming home, Rosales got up and opened up the front door. Rosales turned to walk back inside. When no one followed him in through the door, he returned to the doorway. Rosales saw two people he had never met before (Martinez and Tyler) standing to the left of the front door. Martinez asked Rosales if he knew their cousin, Fernando. Rosales did not know him, but had heard the name from Landon when the blue Mustang drove by the previous afternoon. Rosales said he did not know who their cousin was, had never met him, and they had the wrong person. Martinez asked Rosales if he was from "RKN, " a reference to the Red's Krew Norteño, a subset of the Norteños. Rosales denied being from RKN. Martinez stepped up close to Rosales who had the screen door partially open. Rosales noticed Martinez had a beer in one hand and what appeared to be a knife in the other. Martinez lifted up his shirt to expose a tattoo on his stomach that read "S-U-R" and said that he was "Sur Trece, " both references to Sureños. Martinez then punched Rosales in the face.
Almost immediately, there was gunfire, which Rosales thought came from the area of the street corner. Martinez and Tyler ran from Rosales's house. Rosales was hit by one loud shot. Shotgun pellets lodged in his left side. He closed the door and ran back into his house. He heard another boom that shattered the window, followed by more pops. Rosales's mother called 911.
Jenna saw defendant running towards the Suburban after the shots were fired. He got into the driver's seat. Tyler ran down the street and called Jenna. When Jenna picked him up, Martinez was already in the car. After dropping off Martinez at his apartment, Tyler spent the rest of the night at Jenna's house.
Later that day, Elk Grove Police Detective Ryan Elmore, who had received information regarding the shooting, observed a Suburban matching the description of one of the suspect vehicles. Elmore requested back up and followed the Suburban until it stopped at the house on Mary Lou Way in the Meadowview area. Five or six passengers, several of whom were later identified as Sureño gang members, quickly got out of the Suburban. They were hurrying up to the house when they were detained by the other officers who had arrived. Defendant was the driver of the Suburban. He did not run up to the house, but stayed by the Suburban and followed all the commands of the officers.
During a subsequent search of the house on Mary Lou Way, a shotgun inside a green duffel bag was located in the attic crawl space. The shotgun shells collected from the front yard of Rosales's house were forensically matched to the shotgun found in the attic. The fired shotgun was found in Rosales's front yard appeared to be the same as the unfired wads for the shotgun found in the attic.
Also inside the house, officers saw two closet doors covered with Sureño gang graffiti, including "BST, " "Sur Trece, " "13, " and a number of monikers. Defendant's moniker, "Loco, " was written right in the middle of one door and was written at the bottom of the other. Another moniker written on the door was "Little Loco." A photograph of defendant and the brother of the tenant of the house on Mary Lou Way was found in a drawer of the dresser in the master bedroom of the house. Several blue bandannas were found in the house. A "gangster's prayer" was located on top of the pool table.
Ronald Aurich, a reserve deputy with the Sacramento County Sheriff's Department, testified as the prosecution's gang expert. Aurich testified he was familiar with the Sureño criminal street gang. Sureños use the number "13" and the color blue, among other things, to symbolize the gang. Aurich testified the BST (Barrio Sur Trece) subset of the Sureños claims territory in South Sacramento.
Aurich testified that a hierarchy of gangsters is common within the various subsets of the Sureño gang. Usually an "OG" (original gangster) or a shot caller will take the leadership role, dictating what and how things will be done. A gang member becomes a shot caller by gaining respect and status within the gang. Status can be increased by putting in "work" for the gang by committing crimes. An arrest will tend to enhance a gang member's status. Being incarcerated for a gang-related crime will improve status. Proving that you are willing to back up your "homies" will gain respect within the gang. Wearing visible gang tattoos increases status. A person who is seasoned will have more influence because of his age.
Defendant's criminal history reports reflect he has admitted being a Sureño gang member. Defendant told officers he first became a member when he was 15 years old. Since he was 31 or 32 years old at the time of trial, defendant has been a gang member for at least 15 years. Defendant identified himself as a "Southerner, " meaning a Sureño, to an officer at the jail pending this trial.
Defendant appears in a number of photographs depicting his Sureño gang affiliation. Defendant's moniker or nickname was "Loco." According to Aurich, there generally will not be multiples of the same moniker within one gang set. Where a younger gang member wants to emulate an older gangster, he may adopt a moniker adding the preface "Little" to the older member's moniker, e.g., "Little Loco." Defendant has "Loco" tattooed two places on his body and a teardrop tattooed by his eye. A teardrop tattoo is sometimes used to show the wearer has been to prison, although it can also have other meanings. Aurich's expert opinion was that gang members who have teardrops tattooed by their eyes display more influence and have more power than the typical gang member.
Defendant admitted doing "dirt" or putting in work for the gang when he was young. In 1995, defendant was involved in criminally threatening an apartment manager who evicted a fellow gang member. In 1998, defendant was involved in an assault and theft.
Defendant went to prison in 2002 after he was convicted of aiding fellow gang members in getting rid of the bodies after a double murder. Aurich opined that the offense demonstrated defendant was a person who was trusted within the gang to be called for help if there was a problem. He had some type of leadership role.
In Aurich's opinion, defendant was a shot caller. Aurich based his opinion on defendant's criminal history, his age, the people he has been connected with before this incident, the 2002 case, and the circumstances of this case.

People v. Kirby, 2010 WL 3280290, * 1-5 (Cal.App. 2010).


A. Legal Standards

The AEDPA legal standards play a significant role in this habeas case; thus, they are ...

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