United States District Court, E.D. California
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the magistrate judge. ECF No. 6, 8, 18. Petitioner was convicted of two counts of robbery and assault with a firearm. I C.T. at 47-51.1. In a bifurcated proceeding the jury also found true sentencing enhancements for committing the offenses for the benefit of a criminal street gang and for firearms use. Id . The petition presents two claims challenging the gang enhancement and the imposition of a separate sentence for assault with a firearm. ECF No. 1 at 21, 22. Respondent has answered. ECF No. 11, 12. Petitioner has not filed a traverse. For the reasons that follow, the petition is denied.
a. Trial on the Substantive Offenses
Petitioner was tried together with his co-defendant, Nathaniel Poplar. The offenses occurred on April 12, 2008 when Keyshawn Hutchinson and his ex-girlfriend, Glenda Fletcher, entered the gated apartment complex where Hutchinson's mother lived. II R.T. at 360, III R.T. at 708-10. As Hutchinson unlocked the pedestrian gate, Nathaniel Poplar and petitioner approached them. II R.T. at 374. Poplar produced a gun and said, "My kids got to eat and I want everything." Id. at 375, 378. Poplar cocked the gun and pointed it at Hutchinson's face. Id. at 378-79. Petitioner stood behind Poplar. Id. at 378-79.
Hutchinson began emptying his pockets and threw his wallet, keys, cash, and cell phone on the ground in front of him. II R.T. at 379-81. Fletcher held a purse, which petitioner took from her arm. Id. at 389-90. Poplar repeated that he wanted "everything, " including Hutchinson's shoes and socks. Id. at 382. Poplar told Fletcher to strip, but she said, "No." III R.T. at 721, 723.
As Hutchinson began removing his shoes and jeans, Poplar said, "I'm G Parkway Mobb. I want everything. My kids got to eat." II R.T. at 382-83. Hutchinson understood "G Parkway Mobb" to be a "well known gang." Id. at 383.
As Hutchinson removed his shirt, Poplar attempted to pistol whip him, but Hutchinson saw the gun out of the corner of his eye. II R.T. at 384-85. Hutchinson ducked and the gun nicked him in the back of the head. Id. at 385.
Poplar and petitioner collected the items from the ground and returned to their car. II R.T. at 387, 390. Fletcher reported the crime to the police later that evening. III R.T. at 727.
b. Trial on the Gang Enhancement
Following the jury's finding of guilt, Detective Justin Saario of the Sacramento Police
Department testified as the prosecution's gang expert. V R.T. at 1276. According to Saario, G Parkway Mobb is a criminal street gang. Id. at 1292. Saario's opinion was based on his training and experience, his contact with gang members, and conversations with other gang experts. Id . The primary activities of G Parkway Mobb include assaults with deadly weapons, burglaries, robberies, and possession of firearms. Id. at 1309.
In Saario's opinion, petitioner is a member of G Parkway Mobb. V R.T. at 1320. Saario based his opinion on petitioner's admission to being a gang member, a video clip depicting petitioner involved in gang-related activity, a photograph of petitioner making a G Parkway Mobb gang sign with both hands, his recorded phone conversations in jail, three police reports describing petitioner's behavior, and petitioner's involvement in the current crimes. Id. at 1320-22, 1327-28, 1331-32. Saario testified that Poplar is also a member of G Parkway Mobb. Id. at 1345.
In response to a hypothetical question describing the current crimes, Saario opined that the crimes were committed in association with or for the benefit of the gang. V R.T. at 1357. With respect to Poplar, Saario opined that his actions were gang-related because Poplar announced the gang name and "[took] it to that next level" by pistol whipping Hutchinson and forcing him to remove his clothes. Id. at 1356-58. These actions show disrespect to the victim and enhance the reputation of the gang by instilling fear in the community, leading to a "forced respect" for the gang. Id . With respect to petitioner, Saario opined that petitioner committed the crimes for the ...