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Frazier v. Barnes

United States District Court, Central District of California, Western Division

November 4, 2014

TERRELL FRAZIER, Petitioner,
v.
RONALD BARNES, Interim Warden -- HDSP, Respondent

Terrell Frazier, Petitioner, Pro se, Susanville, CA.

For Ronald Barnes, Interim Warden HDSP, Respondent: Daniel Chi-Sum Chang, CAAG - Attorney Generals Office, Los Angeles, CA; Richard S Moskowitz, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, the Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be dismissed with prejudice.

I

PROCEDURAL HISTORY

On August 17, 2010, a Los Angeles County Superior Court jury convicted petitioner of first degree murder (Cal. Penal Code § 187(a)), three counts of robbery (Cal. Penal Code § 211), and grand theft from a person (Cal. Penal Code § 487(c)). The jury also found true allegations that the murder was committed during a robbery (Cal. Penal Code § 190.2(a)(17)), for the benefit of a criminal street gang (Cal. Penal Code § § 186.22(b)(1)(A) and (C)), and that petitioner personally and intentionally discharged a firearm causing great bodily injury and death (Cal. Penal Code § § 12022.53(d) and (e)(1)). In addition, the jury found true gun and gang enhancements with respect to several of the other offenses. (Reporter's Transcript (" RT") 2103-10; Clerk's Transcript (" CT") 626-30). On September 20, 2010, the trial court sentenced petitioner to life without the possibility of parole, plus a term of 69 years and four months to life in state prison.[1] (RT 2415-17; CT 665-69, 678-80).

Petitioner filed a direct appeal, which the California Court of Appeal denied on March 20, 2012.[2] (Respondent's Notice of Lodging (" Lodgment") Nos. 4-7). The California Supreme Court denied review on June 13, 2012. (Lodgment Nos. 8, 9).

On October 15, 2012, petitioner filed the instant federal Petition. On March 4, 2013, respondent filed an Answer and Return. On June 14, 2013, petitioner filed a Traverse.

This matter is deemed submitted and is ready for a decision.

II

STATEMENT OF FACTS

The Court adopts the following factual summary set forth in the California Court of Appeal's Opinion affirming petitioner's conviction.[3]

A. The Prosecution Case

1. The August 6, 2004 grand theft person

Defendants were members of a Los Angeles gang. On August 6, 2004, at an Arco gas station, [petitioner] forcibly took $20 and a cellular telephone from Tina Caldwell. [Petitioner] left the scene in a black Dodge Intrepid driven by Mr. Alvarez. Ms. Caldwell chased defendants in her car and recorded the Intrepid's license plate number. During the chase, Mr. Alvarez stopped the car, got out and threw Ms. Caldwell's cellular telephone on a lawn. Mr. Alvarez denied knowing [petitioner] was going to take her telephone. Ms. Caldwell got a good look at defendants' faces. She identified both defendants in pretrial photographic lineups, at the preliminary hearing and at trial.

2. The September 3, 2004 robbery homicide

On September 3, 2004, defendants committed a robbery homicide at a video game store. An accomplice, Christopher Bingley, testified against them in return for leniency. Defendants telephoned Mr. Bingley and said they were going to commit a robbery. Defendants drove to Mr. Bingley's house to pick him up. Mr. Alvarez was driving a black Dodge Intrepid. [Petitioner] was in the front passenger seat. [Petitioner] explained that they were going to rob a video game store. Mr. Bingley was directed to duct-tape the employees. [Petitioner] entered the store first and held two employees -- Milton Secord and a second man -- at gunpoint. Mr. Alvarez and Mr. Bingley followed quickly behind. Mr. Bingley and Mr. Alvarez duct-taped the employees while [petitioner] pointed the gun at them. A customer, James Bishara, entered the store while the robbery was in progress. Following a verbal altercation and what sounded to Mr. Bingley like wrestling, [petitioner] fatally shot Mr. Bishara. Mr. Bingley saw Mr. Bishara on the ground. [Petitioner] was standing nearby holding the gun in his hand. The robbers took: video games; money from the store's cash register; the cash in the employees' wallets; and Mr. Secord's cellular telephone.
On September 6, 2004, police officers stopped a black Dodge Intrepid driven by Mr. Alvarez. [Petitioner] exited the passenger seat, reached toward his waistband and ran. A police officer chased and arrested [petitioner]. Mr. Secord identified [petitioner] in an initial photographic lineup. Mr. Secord noted there was a " strong possibility" [petitioner] participated in the robbery. During a live lineup, on April 21, 2005, Mr. Secord was 95 percent certain [petitioner] was carrying a gun during the robbery. The gun was pointed at Mr. Secord during the robbery. Mr. Secord further identified [petitioner] at the preliminary hearing and at trial.
The murder weapon was a .380 caliber semi-automatic pistol. One month after the murder, on October 6, 2004, the gun was found in a backpack belonging to a female member of defendants' gang. Police officers found .38 caliber ammunition during a search of [petitioner's] girlfriend's house.

3. The November 18, 2004 robbery
On November 18, 2004, [petitioner] and a second man robbed Anthony Coleman at gunpoint. [Petitioner] came face-to-face with Mr. Coleman. [Petitioner] pushed the gun into Mr. Coleman's stomach. [Petitioner] told Mr. Coleman: " This isn't a game. I'll kill you right here." Mr. Coleman's cellular telephone was stolen by [petitioner]. Mr. Coleman subsequently identified [petitioner] in a book of photographs, at the preliminary hearing and at trial. Mr. Coleman was 100 percent sure [petitioner] was the robber.

4. The November 21, 2004 robbery

[Petitioner] committed an additional robbery on November 21, 2004. This robbery occurred at the same intersection where Mr. Coleman was robbed. [Petitioner] and an unidentified co-perpetrator robbed Tyler Severe. Mr. Severe's cellular telephone and wallet were stolen. The co-perpetrator was armed. Mr. Severe did not see a gun, but he felt a hard metal object. The unidentified assailant said, " Give me your phone or ... [I'll] shoot[ you]." [Petitioner] was yelling, " Give me the phone or we're going to shoot you." Mr. Severe saw [petitioner's] face clearly when they were at arms' length. Mr. Severe identified [petitioner] in a photographic lineup, at the preliminary hearing and at trial. Mr. Severe was 100 percent sure [petitioner] was one of the individuals involved in the robbery.

B. Defense Evidence

1. LeMarcus Funchess

Detective Robert Lait and a partner interviewed Mr. Funchess in March 2005. As noted, Mr. Bingley was granted leniency because he testified for the prosecution. Mr. Funchess told the detectives about a meeting with Mr. Bingley. Mr. Bingley said he had robbed the video game store. According to Mr. Funchess, Mr. Bingley committed the video store robbery with two accomplices. Mr. Bingley also referred to a robbery in which [petitioner] was a co-perpetrator. Detective Lait said it was unclear from Mr. Funchess's statements whether Mr. Bingley had identified [petitioner] as a participant in the video game store robbery.
Mr. Funchess testified that on the day following the video game store robbery, Mr. Bingley bragged about committing the robbery homicide. Mr. Bingley said he had two accomplices, fellow gang members. Mr. Funchess did not know one of the gang member's real name. Mr. Funchess had never heard anyone call [petitioner] by one of the aliases referred to by Mr. Bingley. One of the persons named by Mr. Bingley was Eric Alexander. Mr. Alexander was a tall, kind of slender, medium-complexioned Black man who walked with a limp.
On cross-examination, Mr. Funchess described other aspects of the conversation with Mr. Bingley. Mr. Bingley spoke about other robberies he had committed as well. Mr. Bingley admitted committing a robbery with a gang member and getting some money out of it. Mr. Bingley described the other robber using a gang moniker. Mr. Funchess did not know [petitioner] by the gang moniker. But other people referred to [petitioner] by the gang moniker described by Mr. Funchess. Mr. Funchess recalled telling Detective Lait that [petitioner] " hung out" with Mr. Alvarez.

2. Lakesha Harmon

Ms. Harmon lived near the video game store. Ms. Harmon testified she did not recall ever talking to Detective Lait about the robbery. Detective Lait testified, however, he interviewed Ms. Harmon on January 14, 2005. According to Detective Lait, Ms. Harmon said Jade Harris had come to her apartment near the video game store. Mr. Harris said he planned to rob it. Mr. Harris asked Ms. Harmon for bags, rope and gloves. Mr. Harris returned a few days later. Ms. Harmon asked Mr. Harris whether he had robbed the video game store. Mr. Harris said he had not robbed the video game store. Detective Lait testified Mr. Harris was a member of defendants' gang.

3. Mr. Harris

Investigators Stewart Johnson and John Musakas interviewed Mr. Harris several days prior to trial. Mr. Harris told the investigators that he had " cased" the video game store. Mr. Harris did so with another person -- neither of defendants here. Mr. Harris mentioned that he had duct tape with him at the time. Mr. Harris testified at trial and denied he had been at Ms. Harmon's house. Mr. Harris denied telling the investigators he had " cased" the video store. Mr. Harris said that when they asked him about it, he laughed at them.

4. Dr. Robert Shomer

Dr. Shomer testified about factors critical to an accurate eyewitness identification -- stress, passage of time, repetition and confidence. In particular, Dr. Shomer stated that a witness's confidence has no relationship to the accuracy of his or her identification.

5. Mr. Alvarez's brother

Mr. Alvarez's brother was present when police officers searched their home. The officers removed video games. One of the removed games was a duplicate of another. The two copies belonged to Mr. Alvarez's brother. A friend made a duplicate of the game for Mr. Alvarez's brother. This occurred after Mr. Alvarez's brother's original video game became so scratched it could not be played anymore.

(Lodgment No. 7 at 2-7).

III

PETITIONER'S CONTENTIONS

1. There was insufficient evidence to support the jury's findings that the robbery and murder were committed for the benefit of a gang. (Petition at 5a).

2. The admission of gang evidence rendered his trial unfair and violated his due process rights. (Petition at 5b).

3. The trial court denied petitioner's severance motion in violation of his due process rights. (Petition at 5c).

4. The trial court allowed the gang expert to answer a case-specific hypothetical in violation of his right to have the jury decide all issues. (Petition at 5d).

5. The trial court's exclusion of third-party culpability evidence violated his right to present a defense. (Petition at 5e).

6. The admission of a " threatening jailhouse note" rendered his trial unfair and in violation of his due process rights. (Petition at 5f).

7. Trial counsel was ineffective for failing to " sanitize other crimes/parole references" in his statements to the police. (Petition at 5g).

8. The trial court's failure to dismiss the grand theft charge after police lost a material surveillance video violated his right to present a defense. (Petition at 5h).

9. The trial court's denial of petitioner's motion to suppress an in-person identification lineup violated his due process rights. (Petition at 5i).

10. The prosecutor committed misconduct by telling the jury that petitioner's defense identification expert was overpaid with taxpayer funds. (Petition at 5j).

11. The trial court's failure to define the term " in association with a criminal street gang" rendered his trial unfair and violated his due process rights. (Petition at 5k).

12. The trial court erred by failing to instruct the jury on the " non-incidental felony requirement" of the special circumstance instruction for murder committed during the course of a robbery. (Petition at 5l).

13. The trial court erred by instructing the jury with CALJIC No. 2.21.2, which allowed the jury to evaluate witness testimony by a probability standard in violation of due process. (Petition at 5m).

14. The felony-murder special circumstance was applied in an unconstitutional manner. (Petition at 5n).

15. The trial court's failure to conduct a Marsden hearing at the time of sentencing violated his due process rights. (Petition at 5o).

IV

STANDARD OF REVIEW

The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (" the AEDPA"). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody " 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." 28 U.S.C. § 2254(d). As explained by the Supreme Court, section 2254(d)(1) " places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Court held that:

Under the " contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the " unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13; see Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000) (discussing Williams). A federal court making the " unreasonable application" inquiry asks " whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409; Weighall, 215 F.3d at 1062. The Williams Court explained that " a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411; accord: Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d)(1) imposes a " highly deferential standard for evaluating state-court rulings, " Lindh, 521 U.S. at 333 n.7, that " demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). A federal court may not " substitut[e] its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d)." Id. at 25; Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (holding that habeas relief is not proper where state court decision was only " merely erroneous").

The only definitive source of clearly established federal law under the AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412. While circuit law may be " persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law (Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999)), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Williams, 529 U.S. at 412; Moses v. Payne, 555 F.3d 742, 759 (9th Cir. 2009). Furthermore, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court " shall be presumed to be correct" unless the petitioner rebuts the presumption " by clear and convincing evidence."

A federal habeas court conducting an analysis under § 2254(d) " must determine what arguments or theories supported, or, [in the case of an unexplained denial on the merits], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court]." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (" A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision."). In other words, to obtain habeas relief from a federal court, " a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at .

The United States Supreme Court has held that " [w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, petitioner presented on direct appeal the claims set forth in the instant Petition. The California Court of Appeal issued a reasoned opinion rejecting the claims, while the California Supreme Court issued a summary denial.[4] (See Lodgment Nos. 7, 9). Accordingly, this Court reviews the appellate court's opinion under the AEDPA standard. See Ylst, 501 U.S. at 803; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (district court " look[s] through" unexplained California Supreme Court decision to the last reasoned decision as the basis for the state court's judgment).

V

DISCUSSION

GROUNDS ONE, TWO, AND FOUR: CHALLENGES TO GANG EVIDENCE

In Ground One, petitioner contends that there was insufficient evidence to support the jury's findings that the offenses he perpetrated with co-defendant Raul Alvarez were committed to benefit a criminal street gang. (Petition at 5a; Traverse at 4-6). In Grounds Two and Four, he argues that allowing the prosecution's gang expert to answer a " highly case-specific" gang hypothetical that " mirrored" the facts in his case violated his right to have a jury determination of the issue and rendered his trial unfair. (Petition at 5b, 5d; Traverse at 7-9, 13-15).

A. The California Court of Appeal's Opinion

In denying petitioner's claims, the California Court of Appeal found that Detective John Flores's answers to the prosecution's hypothetical questions were properly admitted and, along with other evidence admitted at trial, provided sufficient evidence for the jury to convict petitioner of the charged gang enhancements:

There was substantial evidence defendants were active, documented gang members. Further the crimes were committed in gang territory. Defendants do not dispute that evidence. And the parties stipulated that defendants' gang was a criminal street gang as defined in section 186.22, subdivision (f). There also was substantial evidence defendants perpetrated the offenses with fellow gang members. Further, the prosecution could properly present opinion testimony to the effect that the crimes were committed to benefit the gang. (People v. Gutierrez ( 2009) 45 Cal.4th 789, 820, 89 Cal.Rptr.3d 225, 200 P.3d 847; People v. Hernandez ( 2004) 33 Cal.4th 1040, 1047-1048, 16 Cal.Rptr.3d 880, 94 P.3d 1080; People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.) Detective Flores testified: gang members commit violent acts to gain respect for themselves; the acts are also committed to benefit the gang; the crimes elevate their individual status in the gang and raise the level of fear in the community; and this in turn makes it easier for gang members to commit crimes. Detective Flores was presented with hypothetical questions closely tracking the facts of the present offenses. The prosecutor asked whether in Detective Flores's opinion the crimes as described would be gang-related. Detective Flores testified the grand theft person offense was committed for the benefit of the gang. Detective Flores reasoned: it was committed in broad daylight in territory claimed by an allied gang; it served to generate fear in the community to both gangs' benefit; members of defendants' gang needed to show they were committing crimes for their gang and for the alliance; any profits would benefit both the individuals and the gang community; gang members commonly loiter in locations potential victims may frequent, such as the Arco gas station; the crime was preplanned; one perpetrator had the gang nickname of the other tattooed on his arm, showing they were " crimees" -- good friends who commit a lot of crimes together; and the perpetrators demonstrated they had the ability to commit violent crime.
Also in response to hypothetical questions, Detective Flores testified that the video game store robbery and murder were committed to benefit the gang because: the offense occurred in an area that was a gang stronghold; gang members were teaching other members to commit crime; two of the gang members had committed crimes together in the past; they solicited the help of a third gang member -- someone they could trust; the crime was preplanned; the crime helped to maintain the gang's reputation for violence, creating intimidation and making it easier to commit other offenses; it provided monetary benefit to the gang; gangs need money to, in particular, procure weapons; and the crime elevated the perpetrators' gang status and created respect for the gang and the individuals, making rival members fearful. This testimony in response to hypothetical inquiries provided a proper basis from which the jury could reasonably conclude the crimes charged were committed " for the benefit of, at the direction of, or in association with" defendants' gang. (People v. Vang ( 2011) 52 Cal.4th 1038, 1044-1052, 132 Cal.Rptr.3d 373, 262 P.3d 581; People v. Gardeley, supra, 14 Cal.4th at p. 619.) The foregoing was substantial evidence the crimes charged were committed to benefit defendants' gang. ( People v. Albillar, supra, 51 Cal.4th at p. 63; People v. Gardeley, supra, 14 Cal.4th at p. 619; People v. Mendez ( 2010) 188 Cal.App.4th 47, 56-58, 114 Cal.Rptr.3d 870.)

(Lodgment No. 7 at 12-14).

B. Federal Law and Analysis

In a federal habeas proceeding, a petitioner challenging the sufficiency of the evidence may obtain relief only if " it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original); see also Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000). A reviewing court's " reversal for insufficiency of the evidence is in effect a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal." McDaniel v. Brown, 558 U.S. 120, 131, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010) (quoting Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)) (internal quotations omitted).

" [I]t is the responsibility of the jury -- not the court -- to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, __ U.S. __, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam). Accordingly, the reviewing court " must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). If the record supports conflicting inferences, the Court " must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326.

Federal courts must look to state law to determine what evidence is sufficient. Jackson, 443 U.S. at 324 n.16. Moreover, a reviewing habeas court applies " an additional layer of deference" under AEDPA: habeas relief is not warranted unless " the state court's application of the Jackson standard [was] 'objectively unreasonable.'" Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 n.13 (9th Cir. 2005) (as amended) (citation omitted); see also Cavazos v. Smith, 132 S.Ct. at 4 (" [A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'") (citation omitted).

The California Court of Appeal's rejection of petitioner's claim that there was insufficient evidence to support the gang enhancement findings was not objectively unreasonable.[5] Here, there was overwhelming evidence that petitioner was a member of the Rollin' 40s gang. Christopher Bingley, a member of the Rollin' 40s, testified that petitioner was a fellow member (RT 791, 793-97), and petitioner admitted to police on several occasions to being in the gang. (See RT 649-50, 1027-28). Detective Flores, the prosecution's gang expert, also opined that petitioner was a Rollin' 40s gang member based on petitioner's tattoos, his admissions to the police, and the testimony of Bingley. (RT 1105). Flores also testified that, based on the evidence, the murder, robbery, and grand theft offenses committed by petitioner and co-defendant Raul Alvarez -- who was also a documented member of the Rollin' 40s gang -- benefitted the gang. (RT 1213- 15, 1219-33). He based his opinion on the fact that the crimes were committed inside the gang's territory, which helped establish and protect the gang's boundaries and influence over those citizens living therein. (RT 1102-03, 1208-10). He also testified that the crimes strengthened the gang's reputation and increased the fear of those living in its territory from speaking with police, thereby allowing the gang to commit future crimes without repercussions. (RT 1209-10). Finally, he stated that the money generated from robbery and theft crimes generally allowed a gang to buy weapons or drugs. (RT 1211-12).

Viewing this evidence in the light most favorable to the prosecution, the evidence was sufficient to prove each element of the gang enhancement under Penal Code § 186.22.[6] See, e.g., People v. Morales, 112 Cal.App.4th 1176, 1198, 5 Cal.Rptr.3d 615 (Cal.App. 4 Dist. 2003) (finding sufficient evidence to support gang enhancement where multiple gang members commit a crime together and there is no evidence they did so while on a " frolic and detour" unrelated to the gang); People v. Duran, 97 Cal.App.4th 1448, 1465-66, 119 Cal.Rptr.2d 272 (Cal.App. 2 Dist. 2002) (finding expert testimony that gang members engaged in crimes in their area, combined with evidence proving the charged offenses, sufficient to support jury's true finding on the gang enhancement).

Petitioner's contention that the admission of Detective Flores's expert opinion testimony violated his constitutional rights is equally unavailing. Generally, under California law, expert testimony on criminal street gangs is admissible to prove the elements of the gang enhancement. See People v. Hernandez, 33 Cal.4th 1040, 1047-48, 16 Cal.Rptr.3d 880, 94 P.3d 1080 (2004) (" In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs."). To the extent petitioner argues that Flores improperly gave his opinion on the ultimate issue of the gang enhancement allegation -- i.e., that petitioner and Alvarez committed the offenses for the benefit of the Rollin' 40s gang -- California law clearly allows such testimony. See People v. Vang, 52 Cal.4th 1038, 1049, 132 Cal.Rptr.3d 373, 262 P.3d 581 (2011) (stating that under California law " expert testimony is permitted even if it embraces the ultimate issue to be decided"). Moreover, there is no clearly established federal law barring the admission of expert testimony concerning the " ultimate issue to be resolved by the trier of fact." Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009); see also Duvardo v. Giurbino, 410 Fed.Appx. 69, 70 (9th Cir. 2011) (noting that the Supreme Court " has never held that the admission of expert testimony on an ultimate issue to be resolved by the trier of fact violates the Due Process Clause"). Nor does state law prohibit a gang expert from giving an opinion on the basis of facts given in a hypothetical question that asks the expert to assume the truth of hypothetical facts that " mirror" the facts in the charged offense. See Vang, 52 Cal.4th at 1048 (finding that gang expert " properly could, and did, express an opinion, based on hypothetical questions that tracked the evidence" regarding whether crime was committed for a gang purpose); People v. Gardeley, 14 Cal.4th 605, 618, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1996) (allowing expert to render opinion testimony based on hypothetical question that was " rooted in facts shown by the evidence"). As such, petitioner has not demonstrated that the admission of the expert's testimony rendered his trial fundamentally unfair in violation of his constitutional rights. See Briceno v. Scribner, 555 F.3d 1069, 1077-78 (9th Cir. 2009) (holding that the petitioner's claim of denial of due process and a fair trial based on the admission of a gang expert's testimony that crimes in question were gang-related did not contravene federal law), overruled on other grounds by Emery v. Clark, 643 F.3d 1210, 1215 (9th Cir. 2011).

Accordingly, the state court's rejection of these claims was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND THREE: JOINDER OF OFFENSES

In Ground Three, petitioner claims that the trial court denied his severance motion in violation of his due process rights. (Petition at 5c). He asserts that it was improper for the court to have consolidated the robbery/murder charges with the two separate robbery charges and a wholly unrelated grand theft charge. (Traverse at 10-12). He argues that none of the offenses involved cross-admissible evidence and that the misjoinder of crimes resulted in " spillover prejudice" and rendered his trial fundamentally unfair. (Traverse at 11).

A. The California Court of Appeal's Opinion

In denying petitioner's claim, the California Court of Appeal held that joinder of all five offenses in a single trial did not violate petitioner's due process rights:

[Petitioner] unsuccessfully moved pretrial to sever counts 1 and 2, the video game store robbery and murder, from counts 3 and 4, the robberies of Mr. Coleman and Mr. Severe. [Petitioner] also opposed consolidation of count 5, the grand theft of Ms. Caldwell. He argues the trial court erred in so ruling. . . . [¶ ].
No abuse of discretion occurred. The offenses were of the same class -- wrongful taking of another's property -- with one resulting in murder; therefore joinder was permissible. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 281; People v. Koontz ( 2002) 27 Cal.4th 1041, 1074-1075, 119 Cal.Rptr.2d 859, 46 P.3d 335; see People v. Grant ( 2003) 113 Cal.App.4th 579, 586, 6 Cal.Rptr.3d 560.) The crimes all occurred in gang territory. They were committed close in time, in the fall of 2004. (See People v. Lynch, supra, 50 Cal.4th at pp. 735-736; People v. Zambrano ( 2007) 41 Cal.4th 1082, 1128-1129, 63 Cal.Rptr.3d 297, 163 P.3d 4, disapproved on another point in People v. Doolin ( 2009) 45 Cal.4th 390, 421, fn. 22, 87 Cal.Rptr.3d 209, 198 P.3d 11; People v. Gray ( 2005) 37 Cal.4th 168, 221, 33 Cal.Rptr.3d 451, 118 P.3d 496.) Evidence of the several crimes was arguably cross-admissible in that they occurred in the same neighborhood, close in time, and the perpetrators took cash and cellular telephones. (See People v. Perez ( 1967) 65 Cal.2d 615, 618- 619, 55 Cal.Rptr. 909, 422 P.2d 597; People v. Renchie ( 1963) 217 Cal.App.2d 560, 562-563, 31 Cal.Rptr. 694.) There were no charges that were unusually likely to inflame the jury. Weak and strong cases were not joined. The evidence against [petitioner] was strong as to each count. The victims all repeatedly and positively identified him as the perpetrator.

(Lodgment No. 7 at 9-11).

B. Federal Law and Analysis

To obtain federal habeas relief based on a trial court's denial of a motion to sever, a petitioner must demonstrate that the denial of severance rendered his trial fundamentally unfair in violation of due process. See United States v. Lane, 474 U.S. 438, 446 n.8, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (a claim of misjoinder does not, by itself, state a constitutional violation suitable for habeas review unless it " result[ed] in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial"); Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (on habeas corpus, federal reviewing court " must consider on a count by count basis whether the trial on a particular count was fundamentally unfair in light of that count's joinder with one or more other charges"). Any error involving joinder requires reversal only if actual prejudice is shown: that is, the error had a substantial and injurious effect or influence in determining the jury's verdict. See Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004); Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2001) (as amended).

" In evaluating prejudice, the [federal habeas court] focuses particularly on cross-admissibility of evidence and the danger of 'spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis, 384 F.3d at 638. The risk of prejudice is heightened " whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible." Sandoval, 241 F.3d at 772. The danger in these situations is that the jury may find it difficult " to compartmentalize the damaging information." Id. Even in the absence of cross-admissibility, though, prejudice generally does not arise from joinder when the evidence of each crime is simple and distinct. See Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1998). Ultimately, the petitioner bears the burden of demonstrating that the trial court's decision not to bifurcate rendered his trial fundamentally unfair. See Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000) (" [Petitioner] has the burden to prove unfairness rising to the level of a due process concern.").

The Court agrees that the denial of petitioner's severance motion did not render his trial fundamentally unfair. The trial court found that the robbery/murder and the two separate armed robberies were all " crimes of violence" that were " close in time" and essentially " identical offenses, except that homicide is involved in one of them." (RT G21). The court also found the grand theft charge occurred " within a couple months" of the other offenses and was similar in nature. (RT G23). Thus, the record supports the California Court of Appeal's finding that evidence from all of the offenses was likely cross-admissible even if petitioner had been given separate trials. Under these circumstances, joinder of the offenses was appropriate. See Davis, 384 F.3d at 639 (finding counts not improperly joined where evidence was cross-admissible because " incidents were similar in nature, occurred only a few hours apart, and were in close geographic proximity"). Moreover, despite petitioner's arguments to the contrary, this was not an instance where the prosecution attempted to bolster a weak case against petitioner with inflammatory evidence of other criminal behavior. See Sandoval, 241 F.3d at 772 (finding joinder proper because the prosecution did not attempt to join " a strong evidentiary case with a much weaker case in the hope that the cumulation of the evidence would lead to convictions in both cases"). In fact, there was substantial evidence of petitioner's guilt in all the alleged offenses. Petitioner was positively identified by the victims in each of the three robbery charges (including the one that resulted in the murder), as well as by the victim from the grand theft charge. Moreover, in the robbery/murder counts, fellow accomplice Christopher Bingley testified as to petitioner's role in the shooting death of James Bishara. Finally, the trial court instructed the jury that " [e]ach count charge[d] a distinct crime, " and to separately consider the charges against petitioner. (CT 606; RT 1624). " A jury is presumed to follow its instructions." Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). Thus, petitioner has not demonstrated that the denial of his severance motion was prejudicial or rendered his trial fundamentally unfair.

Accordingly, the Court finds that the California Court of Appeal's rejection of this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND FIVE: EXCLUSION OF THIRD-PARTY CULPABILITY EVIDENCE

In Ground Five, petitioner claims that the trial court's exclusion of evidence that Kenneth Chatman boasted on the day of the robbery/murder that he could rob the video game store with a paintball gun violated his right to present a defense and prejudiced the outcome of his case. (Petition at 5e; Traverse at 16-28).

A. The California Court of Appeal's Opinion

The California Court of Appeal set forth the relevant facts as follows:

Defense counsel made an offer of proof as follows. First, Boris Garcia would testify that on September 3, 2004 -- the day of the robbery homicide at the video game store -- Mr. Chatman, a gang member, walked into the tattoo parlor. The tattoo parlor was next door to the video game store. Mr. Chatman was carrying a paintball gun. During a conversation, Mr. Chatman said he could rob somebody with it. Second, Detective Lait would testify as to a conversation with Mr. Chatman. According to Mr. Chatman, he was solicited to rob the video game store. The offer was made by Mr. Harris, a fellow gang member. Mr. Harris and Mr. Chatman then cased the store. But in the conversation with Detective Lait, Mr. Chatman denied participating in any robbery. Third, Mr. Harris would testify to having asked Mr. Chatman to case the video game store. According to Mr. Harris, they were going to case the video game store together. Mr. Harris admitted giving Mr. Chatman a roll of duct tape to hold while they did so. Fourth, one month after the robbery, Mr. Secord identified Mr. Chatman in a photographic lineup as someone who had been around the strip mall the day of the robbery. According to Mr. Secord, Mr. Chatman was wearing a hard plastic face mask commonly used in paintball competitions.
The prosecution argued there was no evidence Mr. Chatman was involved in the robbery homicide. According to the prosecutor: Mr. Secord was familiar with Mr. Chatman; Mr. Secord had seen Mr. Chatman wearing a mask earlier on the day of the robbery; Mr. Secord did not identify Mr. Chatman as one of the robbers; and Mr. Secord said the mask worn by one of the perpetrators was not the one Mr. Chatman had been wearing earlier. Finally, the prosecutor argued Mr. Bingley also did not identify Mr. Chatman as one of the perpetrators.
The trial court tentatively ruled the proffered evidence did not raise a reasonable doubt as to defendants' guilt. The court noted: there was no suggestion the robbery contemplated by Mr. Chatman and Mr. Harris ever occurred; the robbery that did occur was not committed by any individual wearing a paintball mask; no perpetrator of the robbery homicide wielded a paintball gun; the accomplice, Mr. Bingley, never named either Mr. Harris or Mr. Chatman as a perpetrator of the robbery; and Mr. Secord did not identify Mr. Chatman as one of the robbers.
Prior to issuing a final ruling, the trial court allowed the defense to call Mr. Chatman, Mr. Harris and Ms. Harmon to testify under [California] Evidence Code section 402. Mr. Chatman asserted his Fifth Amendment right and refused to testify. The trial court observed that Mr. Chatman's entire face was covered with tattoos; moreover, the tattoos predated the robbery. Mr. Harris denied knowing Mr. Chatman or Ms. Harmon. Mr. Harris also denied having cased the video game store with Mr. Chatman. Ms. Harmon denied telling the detectives that Mr. Harris had come to her house saying he planned to rob the video game store.
With respect to Mr. Chatman, the trial court ruled: " There is zero possibility ... that in reality Mr. Chatman was involved in that robbery. I say that because he is so distinctive that there is no reasonable possibility that anybody would misidentify anybody in this case for him. [¶ ] That being the case, his alleged involvement is ... not capable of raising a reasonable doubt...." The trial court concluded the marginal relevance of the testimony as to Mr. Chatman was outweighed by the undue consumption of time required to present the evidence: " There will be no reference whatever to Mr. Chatman for reasons I've stated. Under [Evidence Code section] 352, the time consumed would include then trotting Mr. Chatman into the courtroom and dealing with that whole issue to disprove any allegation that, in fact, he really was involved."
As noted above, evidence was offered at trial that Mr. Harris and an unidentified accomplice (not either of defendants) had, prior to the robbery homicide, while carrying duct tape, cased the video game store. There was also evidence that prior to the robbery homicide, Mr. Harris had paid a visit to Ms. Harmon, who lived near the store. Mr. Harris told Ms. Harmon he planned to rob the store and asked her for bags, rope and gloves. Mr. Harris returned several days later, after the robbery and murder had occurred. When questioned by Ms. Harmon, Mr. Harris denied robbing the store. At trial, Ms. Harmon said she had no recollection of talking to Detective Lait. Also at trial, Mr. Harris denied he had been at Ms. Harmon's house and telling investigators he had cased the video game store. Also at trial, Mr. Secord identified a photograph of Mr. Chatman as someone who was " around the neighborhood, " in front of the strip mall. Further, Mr. Secord testified Mr. Chatman was next door at the tattoo parlor " almost on a daily" basis. Mr. Secord never identified Mr. Chatman as a participant in the robbery.

(Lodgment No. 7 at 17-19 (italics in original)). The appellate court concluded that there was no prejudice from the exclusion of evidence that was only marginally relevant:

The trial court did not err prejudicially when it excluded evidence pertaining to Mr. Chatman. Defendants' offer of proof failed to link Mr. Chatman to the actual robbery homicide. There was no evidence any perpetrator wielded a paintball gun. There was no testimony a perpetrator of the robbery homicide wore a paintball mask of the type Mr. Chatman had been seen wearing. Mr. Secord was familiar with Mr. Chatman. Mr. Secord did not identify Mr. Chatman as a participant in or possible perpetrator of the robbery homicide. The accomplice, Mr. Bingley, never named Mr. Chatman as one of the robbers. No witness described a person with tattoos covering his face as having been involved. That Mr. Chatman considered robbing the video game store at or about the same time the present robbery occurred was not evidence linking him to the actual perpetration of the crime. That Mr. Chatman and defendants were fellow gang members changes nothing in the context of abuse of discretion review on our part. There was no evidence Mr. Chatman and Mr. Harris ever robbed the video game store. The trial court could reasonably conclude, given the testimony's marginal relevance, that presenting it -- including calling Mr. Garcia and Mr. Chatman to testify -- would require an undue consumption of time.

(Lodgment No. 7 at 19-20).

B. Federal Law and Analysis

The Sixth Amendment requires that a defendant have a " fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). " [T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (citations omitted). A defendant's right to present a defense may be violated by the erroneous exclusion of critical, corroborative defense evidence. See Chambers, 410 U.S. at 295-302; DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (" The Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense."). Judges are permitted, however, " to exclude evidence that is repetitive ..., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues." Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (internal citations and quotation marks omitted, alterations in original). Even if third-party culpability evidence is improperly excluded, habeas relief is warranted only if the error had a " substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Fry v. Pliler, 551 U.S. 112, 120-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (affirming Ninth Circuit's application of Brecht to due process claim based on exclusion of third party culpability evidence).

The California Court of Appeal rejected petitioner's claim because there was no actual evidence that Chatman robbed the video store on the day in question and any testimony that Chatman boasted that he " could rob" the store with a paintball gun (see RT 307) was too speculative to have prejudiced the outcome of his case. The Supreme Court has noted that it is " widely accepted" for courts to have rules excluding evidence of third-party culpability when the evidence is " remote and lack[s] ... connection to the crime, " or when the evidence is " speculative, " or " does not tend to prove or disprove a material fact in issue at the defendant's trial." Holmes, 547 U.S. at 327 (citations omitted).

Here, there was no evidence that Chatman was involved in any robbery. Chatman himself denied as much to the police and asserted his Fifth Amendment privilege against self-incrimination when called to testify before the trial court. Petitioner has not put forth any evidence connecting Chatman to the robbery/murder other than the tangential hearsay evidence of Chatman's alleged hypothetical comment. " The exclusion of tangential evidence of something that may have happened at a different time and place does not constitute a due process violation." Walters v. McCormick, 122 F.3d 1172, 1177 (9th Cir. 1997) (emphasis in original). Moreover, even had petitioner been allowed to admit this evidence, there is no reasonable possibility that it would have affected the outcome of the case. The robbery victim, Milton Secord, positively identified petitioner as one of the robbers in the video game store who was carrying a gun. (RT 677-79, 725-32, 734, 759). His identification was corroborated by Christopher Bingley's testimony that he, petitioner, and Alvarez robbed the video game store, during which petitioner shot a customer. (RT 808-31, 928, 943). In light of Chatman's distinctive facial tattoos, there is no reasonable possibility that Chatman, rather than petitioner, committed the robbery/murder. Consequently, any error in excluding the third party culpability evidence was harmless under Brecht. Thus, the state appellate court's rejection of this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND SIX: EVIDENTIARY ERROR

Petitioner claims in Ground Six that the introduction of a " threatening jailhouse note" without any evidence that it was written or authorized by petitioner violated his right to due process and a fair trial. (Petition at 5f; Traverse at 19-21).

A. The California Court of Appeal's Opinion

The California Court of Appeal rejected petitioner's claim, finding that the threat evidence was properly admitted because it was relevant to the jury's assessment of the witness:

Over defense objection, the trial court admitted evidence Mr. Bingley, while incarcerated, had been given a handwritten note. The note threatened to harm Mr. Bingley or his family members if he testified in the present case. There was also evidence the note might have been written by an inmate with pro. per. privileges, a status [petitioner] had enjoyed. Defendants assert it was prejudicial error to allow the evidence absent testimony either defendant authorized the note. A trial court exercises broad discretion in the admission or exclusion of evidence. (People v. Scott ( 2011) 52 Cal.4th 452, 490, 129 Cal.Rptr.3d 91, 257 P.3d 703; People v. Richardson ( 2008) 43 Cal.4th 959, 1000-1001, 77 Cal.Rptr.3d 163, 183 P.3d 1146.) Here, the trial court could properly rule Mr. Bingley's testimony was suspect because he gave it in return for leniency. And the trial court could reasonably find evidence of the threat against Mr. Bingley bore on his credibility even if the threat was not linked to defendants. (People v. Mendoza ( 2011) 52 Cal.4th 1056, 1084, 132 Cal.Rptr.3d 808, 263 P.3d 1; People v. Green ( 1980) 27 Cal.3d 1, 20, 164 Cal.Rptr. 1, 609 P.2d 468, disapproved on other points in People v. Martinez ( 1999) 20 Cal.4th 225, 233-237, 83 Cal.Rptr.2d 533, 973 P.2d 512, and People v. Hall ( 1986) 41 Cal.3d 826, 834, fn. 3, 226 Cal.Rptr. 112, 718 P.2d 99; see People v. Guerra ( 2006) 37 Cal.4th 1067, 1142, 40 Cal.Rptr.3d 118, 129 P.3d 321.) There was no abuse of discretion.

(Lodgment No. 7 at 20.)

B. Federal Law and Analysis

Habeas relief is not available for an alleged error in the application of state evidentiary law. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, " [h]abeas relief is available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process." Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993); see also Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir. 1986) (stating that the dispositive issue is whether the trial court committed an error which rendered the trial so fundamentally unfair that it violated federal due process). " Only if there are no permissible inferences the jury can draw from the evidence can its admission violate due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (emphasis in original). Even then, habeas relief remains unwarranted unless the challenged evidence " had substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 637 (citation omitted).

Here, the state court found that the threatening jailhouse note was relevant to Bingley's credibility as a witness. Evidence of third-party threats that bear on a witness' credibility is admissible under both California and federal law. See People v. Olguin, 31 Cal.App.4th 1355, 1368-69, 37 Cal.Rptr.2d 596 (Cal.App. 4 Dist. 1994) (evidence of a " third party" threat may bear on the credibility of the witness, whether or not the threat is directly linked to the defendant); see also United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996) (" [T]hreat evidence can be relevant to explain a witness' inconsistent statements, delays in testifying, or even courtroom demeanor indicating intimidation."). Where challenged evidence is relevant to an issue in the case, its admission cannot be said to have violated the defendant's due process rights. Estelle, 502 U.S. at 70; see also United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (stating that the admission of " highly prejudicial evidence" does not necessarily violate a defendant's constitutional rights when the evidence is distinctly relevant). Moreover, the trial court instructed the jury that without evidence that the defendants authorized the threatening note to be sent to Bingley, it could not consider the note as evidence of a " consciousness of guilt." (CT 558). In light of the court's admonition and other substantial evidence of petitioner's guilt, any error in allowing evidence of the note at trial was plainly harmless. See Brecht, 507 U.S. at 637.

Accordingly, the Court finds that the California Court of Appeal's rejection of this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL

In Ground Seven, petitioner claims that trial counsel's failure to " sanitize" his statement to police, which included references to his criminal history and parole status, constituted ineffective assistance of counsel. (Petition at 5g; Traverse at 22-24).

A. The California Court of Appeal's Opinion

The California Court of Appeal set forth the relevant facts as follows:

Detective Craig Dean interviewed [petitioner]. The interview was conducted prior to [petitioner's] arrest. The jurors heard a tape recording and received transcripts of that interview. Several comments were made in the course of that interview about [petitioner's] past criminal history. [Petitioner] stated: " I'd done been in jail too long to let any nigger punk me"; " I did my jail time"; and " I'm not on parole no more, nothing." The following exchange also occurred: " Detective Dean: ... I'm just letting you know for future reference, you know, because of your past arrests -- [¶ ] [Petitioner]: Uh-huh." After the tape recording was presented to the jury, [petitioner's] counsel, Edward Murphy, objected and requested an admonition. The trial court ruled the objection came too late. [Petitioner] now argues Mr. Murphy was ineffective for failure to act in a timely manner.

(Lodgment No. 7 at 23). The appellate court rejected the claim for lack of prejudice:

We need not decide whether Mr. Murphy's performance was deficient because [petitioner] has failed to establish, as a demonstrable reality, there is a reasonable probability of a different result. (Strickland v. Washington ( 1984) 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Lawley ( 2002) 27 Cal.4th 102, 136, 115 Cal.Rptr.2d 614, 38 P.3d 461; People v. Fairbank ( 1997) 16 Cal.4th 1223, 1241, 69 Cal.Rptr.2d 784, 947 P.2d 1321.) The case against [petitioner] was compelling. [Petitioner's] victims positively identified him. Mr. Bingley, whose testimony as an accomplice was adequately corroborated, placed [petitioner] at the scene of the video game store robbery. And Mr. Bingley identified [petitioner] as the person who fired the fatal shot. The brief nonspecific references to [petitioner's] prior criminality were never again mentioned in front of the jury. It is not reasonably probable the outcome would have been more favorable to [petitioner] had Mr. Murphy moved to redact the remarks or requested an admonition.

(Lodgment No. 7 at 23-24).

B. Federal Law and Analysis

Petitioner's ineffective assistance of trial counsel claim is governed by a two-step analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner must prove that his attorney's representation fell below an objective standard of reasonableness. Id. at 687-88. In order to establish this, petitioner must identify the acts or omissions that rendered the representation objectively unreasonable. Id. at 690. Second, petitioner must show that he was prejudiced by counsel's deficient performance. Id. at 692. Petitioner bears the burden of establishing both components. Id. at 687. Failure to satisfy either prong requires that an ineffective assistance claim be denied. Id. at 697 (no need to address deficiency of performance if prejudice is examined first and found lacking); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (" Failure to satisfy either prong of the Strickland test obviates the need to consider the other.").

Courts generally maintain a " 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Rios, 299 F.3d at 805 ( citing Strickland, 466 U.S. at 689). Indeed, the Supreme Court dictates that " [j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. In order to show that his counsel performed objectively unreasonably, petitioner must overcome the strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. The Court does not consider whether another lawyer with the benefit of hindsight would have acted differently than petitioner's trial counsel. Id. Instead, the Court looks only to whether trial counsel made errors so serious that counsel failed to function as guaranteed by the Sixth Amendment. Id. at 687.

Petitioner also must prove that he was prejudiced by demonstrating a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. To satisfy this requirement, petitioner must demonstrate that his counsel's error rendered the result unreliable or the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 694.

The Court agrees that there is no reasonable probability that any failure by counsel to object to the " other crimes" evidence prejudiced the outcome of petitioner's case. The vague references by petitioner and Detective Dean to petitioner's criminal past were isolated and brief comments made during a week-long trial. Petitioner has made no credible argument as to how counsel's failure to " sanitize" petitioner's statement had any effect on the outcome of the trial in light of other substantial evidence of his guilt, including eyewitness identifications and inculpatory testimony from one of the accomplices to the robbery/murder. Thus, any error by counsel was not prejudicial. See, e.g., Peoples v. Gipson, 2011 WL 5593789, at *13 (C.D. Cal. Oct. 28, 2011) (no prejudice under Strickland from counsel's failure to object to other crimes evidence where other evidence of guilt was strong); Moevao v. Curry, 2010 WL 583966, at *13 (N.D. Cal. Feb. 16, 2010) (denying claim that counsel was ineffective for failing to object to the prosecutor's references to " other crimes" because the comments were " relatively isolated" and were " unlikely to have made any difference in the outcome of a trial" in light of " strong" evidence of guilt). Thus, the state appellate court's rejection of this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND EIGHT: DESTRUCTION OF EVIDENCE

In Ground Eight, petitioner claims that the trial court's failure to dismiss the grand theft charge (count five) after police destroyed a gas station surveillance video violated his right to present a defense. (Petition at 5h). He argues that law enforcement's failure to preserve the video, which was made at the time petitioner allegedly took $20 and a cellular telephone from Tina Caldwell, was " tantamount to bad faith destruction of key evidence" because petitioner was unable to " test or enhance the video." (Traverse at 25-27).

A. The California Court of Appeal's Opinion

The California Court of Appeal set forth the relevant facts as follows:

In August 2004, Officer Tanya Eppenger investigated the grand theft from Ms. Caldwell at the Arco gas station. Officer Eppenger testified she viewed a surveillance tape. It contained only squares and lines. She was unable to make out any people or vehicles. Officer Eppenger testified she could not: even tell whether there were any people on the videotape; make out whether any vehicles were present; or see any date or time. If there had been anything at all worth noting, she would have done so. Detective Eppenger testified it was just a bad tape. The tape was old and had been reused several times. Officer Eppenger noted in a detective's case log, " I attempted to review the videotape from the market, but it is not clear enough or still enough to identify any possible suspect or vehicles." Deputy District Attorney Mark L. Inaba made an offer of proof that: the surveillance tape was booked into evidence; but the case was not filed; and the evidence was destroyed in the normal course of business. The trial court denied defendants' motion to dismiss count 5.

(Lodgment No. 7 at 7-8). The appellate court rejected petitioner's claim that the police failed in their duty to preserve potentially exculpatory evidence as follows:

Substantial evidence supports the trial court's ruling. The undisputed evidence was that the surveillance tape had no exculpatory value whatsoever. The trial court found Officer Eppenger's testimony was very clear and credible. There was no evidence the tape had any exculpatory value that was apparent before it was destroyed. Neither defendant has shown the surveillance tape could have played a significant role in his defense. (See People v. Hines ( 1997) 15 Cal.4th 997, 1042, 64 Cal.Rptr.2d 594, 938 P.2d 388 [erased portion of videotape].) Even if defendants could show the surveillance tape was potentially useful evidence that could have been subjected to testing that might have helped the defense, there was no evidence of bad faith by the police. ( Arizona v. Youngblood, supra, 488 U.S. at p. 57; People v. DePriest, supra, 42 Cal.4th at p. 42; People v. Farnam ( 2002) 28 Cal.4th 107, 166-167, 121 Cal.Rptr.2d 106, 47 P.3d 988.) Defendants have not shown any detective believed the surveillance tape had exculpatory value or it was destroyed to deny them an opportunity to defend against the charges.

(Lodgment No. 7 at 8-9).

B. Federal Law and Analysis

" The mere failure [of police] to preserve evidence which could have been subjected to tests which might have exonerated the defendant does not constitute a due process violation." Phillips v. Woodford, 267 F.3d 966, 987 (9th Cir. 2001) (quoting United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir.1997)). Rather, the government's duty to preserve evidence is limited to material evidence, the exculpatory value of which is apparent at the time of its destruction, that is of such a nature that the defendant cannot obtain comparable evidence from other sources if that evidence is destroyed. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Furthermore, " unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). " The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Id. at 56 n.1.

Here, petitioner puts forth no evidence demonstrating that the gas station video tape contained exculpatory information that would have aided his defense. Petitioner has done nothing to rebut Officer Eppenger's testimony that " there was nothing visible on the tape" which could be used to identify any of the persons involved in the theft from Caldwell. (See RT G3, G5-G8). Although petitioner argues that enhancing the video may have provided helpful evidence to the defense, the government's duty to preserve evidence arises only when the evidence " possess[es] an exculpatory value that was apparent before the evidence was destroyed." Trombetta, 467 U.S. at 489. Moreover, petitioner has offered no evidence or argument suggesting that Officer Eppenger or any other member of law enforcement acted in bad faith in destroying the evidence. Rather, after viewing the tape and finding nothing useful, the police offered to return the video tape to the store owner and, when he elected not to pick it up, the police destroyed it. (See RT G3). The absence of any evidence that the police acted in bad faith in destroying the tape is fatal to this claim. See Leavitt v. Arave, 383 F.3d 809, 831 (9th Cir. 2004) (" Because it is undisputed that no bad faith was involved in the destruction of the possibly helpful blood samples, [petitioner] simply cannot prevail on this claim."); see also Trombetta, 467 U.S. at 488 (stating that bad faith is " a conscious effort to suppress exculpatory evidence"); United States v. Estrada, 453 F.3d 1208, 1213 (9th Cir. 2006) (finding no bad faith because no " malicious intent" by government); Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997) (holding that negligent destruction of evidence is not sufficient to establish bad faith). For all these reasons, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND NINE: SUPPRESSION OF LINE-UP IDENTIFICATION

In Ground Nine, petitioner claims that the trial court's denial of his motion to suppress an in-person identification lineup violated his due process rights. (Petition at 5i). He argues that witness Milton Secord's identification of him in a pre-complaint live line-up was illegal. (Traverse at 28-30).

A. The California Court of Appeal's Opinion

The California Court of Appeal set forth the relevant facts as follows:

The video game store robbery occurred on September 3, 2004. On October 1, 2004, Mr. Secord, the store employee, identified [petitioner] in a photographic lineup. Mr. Secord noted: " Could be. Not sure. Strong possibility." [Petitioner] was arrested on December 7, 2004, in connection with the robberies of Mr. Coleman and Mr. Severe. The trial court subsequently ordered [petitioner], who was in custody, to participate in an in-person lineup. At the April 21, 2005 in-person lineup, Mr. Secord positively identified [petitioner] as a perpetrator of the robbery homicide at the video game store. Mr. Secord was 100 percent certain of his identifications. Mr. Secord hesitated only because [petitioner's] face appeared to have a birthmark. Mr. Secord did not see the apparent birthmark at the time of the robbery. Evidence was subsequently introduced that the mark was the result of an abrasion [petitioner] suffered at the time of his arrest.

(Lodgment No. 7 at 21). In denying petitioner's claim, the appellate court held that the line-up did not violate state or federal constitutional norms:

[Petitioner] moved to suppress Mr. Secord's in-person lineup identification. [Petitioner] argued the trial court lacked authority to order him to participate in the lineup. On appeal, [petitioner] argues it was error to deny the motion to suppress the in-person lineup identification. [Petitioner] relies on Goodwin v. Superior Court ( 2001) 90 Cal.App.4th 215, 221-226, 108 Cal.Rptr.2d 553. In Goodwin, we held the respondent court had no jurisdiction to ex parte order a suspect who was out of custody and charged with no crimes to appear at a lineup. (Id. at pp. 221-226.) Goodwin is inapposite. [Petitioner] was in custody and charged with crimes when the in-person lineup occurred. And there was reasonable cause to believe [petitioner] had participated in the video game store robbery homicide. Mr. Secord had made a photographic lineup identification of [petitioner]. ( People v. Sequeria (1981) 126 Cal.App.3d 1, 13, 179 Cal.Rptr. 249.) Further, [petitioner] had no constitutional due process or self-incrimination right to refrain from participating in the lineup. (United States v. Wade ( 1967) 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Johnson ( 1992) 3 Cal.4th 1183, 1220-1222, 14 Cal.Rptr.2d 702, 842 P.2d 1; Goodwin v. Superior Court, supra, 90 Cal.App.4th at p. 220.) The trial court did not err in denying [petitioner's] motion to suppress Mr. Secord's identification at the live lineup.

(Lodgment No. 7 at 21 (italics in original)).

B. Federal Law and Analysis

In United States v. Wade, the Supreme Court held that a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police so that witnesses could view him and listen to his voice. 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Thus, there is no constitutional right to refuse to participate in a line-up. See, e.g., United States v. Williams, 594 F.2d 1258, 1259 (9th Cir. 1979) (" Appellant concedes, as he must, that he could properly be required to participate in a line-up."); Hernandez v. Schneckloth, 425 F.2d 89, 91 (9th Cir. 1970) (" The district court correctly held that 'appearance in a line-up does not come within the Fifth Amendment right against self-incrimination; and an individual does not have the right to refuse to submit to eye-witness identification.'") ( citing Wade, 388 U.S. at 222).

Here, to the extent that petitioner argues that requiring him to participate in a pre-complaint in-person line-up for identification purposes violated his rights under state law (see Goodwin v. Superior Court, 90 Cal.App.4th 215, 108 Cal.Rptr.2d 553 (Cal.App. 2 Dist. 2001)), any such claim is not cognizable, as federal habeas relief is not available for state law errors. See Wilson v. Corcoran, 562 U.S. 1, 16, 131 S.Ct. 13, 178 L.Ed.2d 276 (2010); Estelle, 502 U.S. at 67-68. Moreover, under California authority, there is no " due process right not to participate in a lineup." Goodwin, 90 Cal.App.4th at 221 (emphasis in original); see also People v. Hart, 20 Cal.4th 546, 625, 85 Cal.Rptr.2d 132, 976 P.2d 683 (1999) (" [A] defendant generally has no right to refrain from participating in a lineup."). More importantly, there is no federal due process right or privilege against self-incrimination that allows a suspect to refuse to participate in a line-up. See Wade, 388 U.S. at 223; see also Rigney v. Hendrick, 355 F.2d 710, 711-15 (3d Cir. 1965) (finding no violation of equal protection, due process, or the right against self-incrimination where prisoners awaiting trial were required to participate in lineups to be viewed by victims of other, unrelated offenses). Therefore, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND TEN: PROSECUTORIAL MISCONDUCT

In Ground Ten, petitioner claims that the prosecutor committed misconduct in his closing argument when he " repeatedly" told the jury that the defense identification expert was overpaid with taxpayer funds. (Petition at 5j; Traverse at 31-34).

A. The California Court of Appeal's Opinion

The state appellate court found the relevant facts as follows:

Defendants argue the prosecutor made comments in closing argument about Dr. Shomer that amounted to prejudicial misconduct. The prosecutor argued: " Remember that character ... Dr. Shomer who got on the stand? We paid him over a million dollars over -- well, $800, 000 over the past ten years to get on the stand and say some of the stuff that he said." And in reference to the defense attorneys' upcoming arguments, the prosecutor said, " I anticipate they are going to talk a little bit about their star witness that we paid way too much money for, Mr. Shomer -- Dr. Shomer."

(Lodgment No. 7 at 22). In denying petitioner's claim, the appellate court concluded that the argument was not misconduct:

The present argument was permissible. The prosecutor merely asserted Dr. Shomer's purported science-based opinions about eyewitness identifications could not be trusted as they were espoused for financial gain. (People v. Redd, supra, 48 Cal.4th at p. 753 [prosecutor commented on expert witness's fee]; People v. Arias, supra, 13 Cal.4th at pp. 161-162 [prosecutor argued that in comparison to defense expert witness, eyewitness " 'wasn't paid a hundred dollars for his testimony'" ]; People v. Spector ( 2011) 194 Cal.App.4th 1335, 1406, 127 Cal.Rptr.3d 31, 128 Cal.Rptr.3d 31 [prosecutor accused defense of throwing money at experts in attempt to get client acquitted].)

(Lodgment No. 7 at 22-23).

B. Federal Law and Analysis

Federal habeas review of prosecutorial misconduct claims is limited to the narrow issue of whether the alleged misconduct violated due process. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). To prevail on such a claim, a petitioner must show that the prosecutor's conduct " so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, prosecutors are given wide latitude in closing argument and may strike hard blows based on the evidence in the case and argue reasonable inferences drawn from that evidence. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Menendez v. Terhune, 422 F.3d 1012, 1037 (9th Cir. 2005); Ceja v. Stewart, 97 F.3d 1246, 1253-54 (9th Cir. 1996).

Here, Dr. Shomer testified that he had earned approximately $800, 000 in the past ten years by testifying exclusively for the defense in cases involving eyewitness identifications. (RT 1385-86). The prosecutor's comments on the financial incentive for the witness's testimony and his argument that the value of the testimony was not in accord with the money paid to procure his services were the type of " hard blows" allowed in closing argument and did not amount to misconduct which rendered the trial fundamentally unfair. See, e.g., Lunsford v. McDonald, 2011 WL 2669425, at *5 (N.D. Cal. Jul. 7, 2011) (" [T]he prosecutor's questions regarding how much the expert witness was paid and how often testifies in favor of the defense were constitutionally permissible."); Smith v. Ryan, 2009 WL 4673773, at *26-27 (D. Ariz. Dec. 3, 2009) (finding no prosecutorial misconduct despite prosecutor's statements that defense experts were " paid mouthpieces" and " unethical"). Thus, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUNDS ELEVEN, TWELVE, AND THIRTEEN: JURY INSTRUCTIONAL ERROR

In Grounds Eleven through Thirteen, petitioner raises three claims of jury instructional error. He argues that the trial court failed to define the meaning of the phrase " in association with a criminal street gang, " which rendered his trial unfair; failed to include the full instruction in CALJIC No. 8.81.17 in violation of his right to present a defense; and instructed the jury with CALJIC No. 2.21.2, which unconstitutionally reduced the prosecution's burden of proof. (Petition at 5k-5m; Traverse at 35-46).

A. Applicable Federal Law

A state court's instructional error " does not alone raise a ground cognizable in a federal habeas corpus proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988); see also Estelle, 502 U.S. at 71-72 (" [T]he fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief. Federal habeas courts therefore do not grant relief, as might a state appellate court, simply because the instruction may have been deficient in comparison to the [state] model."). Instead, to be cognizable on habeas review, a state court's instructional error must have " so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 71-72. Specifically, the petitioner must show that, when the ailing instruction is " considered in the context of the instructions as a whole and the entire trial record, " there is " a reasonable likelihood" that the jury applied the instruction in a way that relieved the State of its burden of proof. Waddington v. Sarausad, 555 U.S. 179, 191, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009); Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). " It is not enough that there is some slight possibility that the jury misapplied the instruction." Waddington, 555 U.S. at 191 (internal quotation marks and citation omitted). In addition, to obtain relief, the petitioner must show that the instructional error was not harmless -- that is, that it had a " substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 637-38; see also Pulido v. Chrones, 629 F.3d 1007, 1019 (9th Cir. 2010) (applying Brecht's " substantial and injurious effect" standard to an instructional error claim on habeas review).

B. In Association With a Criminal Street Gang

At trial, the court instructed the jury with CALJIC No. 17.24.2, which charged petitioner with having committed counts one, two, and five " for the benefit of, at the direction of, or in association with a criminal street gang." (CT 609). Petitioner claims that the court's failure to define the phrase " in association with a criminal street gang" allowed the jury to convict him of the gang enhancements simply by finding that he committed the underlying crimes with a fellow gang member. (Petition at 5k; Traverse at 35-38). In making this argument, petitioner relies on the California Supreme Court's decision in People v. Albillar, 51 Cal.4th 47, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010), which discussed the necessary elements to prove a criminal street gang enhancement. To the extent petitioner's claim of instructional error is based on state law, it is not cognizable on federal habeas review. Menendez, 422 F.3d at 1029 (9th Cir. 2005) (" Any error in the state court's determination of whether state law allowed for an instruction in this case cannot form the basis for federal habeas relief.").

A claim by petitioner that the instruction violated his federal constitutional rights is equally unavailing. The California Court of Appeal found that there was no prejudice from any failure to further define the phrase because " Detective Flores explained at length what it means to commit a crime for the benefit of a gang." (Lodgment No. 7 at 26). The Court agrees. At trial, Detective Flores testified that gangs commit violent crimes to generate fear in the community, which allows gangs to commit additional crimes by hampering witness cooperation with police, and keeps other gangs out of their territory. (RT 1207-10). He also explained how robberies aid the gang by generating money to buy drugs and guns. (RT 1211). Further, he opined that each of the three charged offenses was committed " for the benefit of" petitioner's gang. (RT 1213-15, 1219-33). There is no support for petitioner's contention that the jury convicted him of the gang enhancements simply because he committed the underlying crimes with another gang member. Therefore, petitioner has not demonstrated that the court's instructions violated his due process rights or that the trial court's failure to further define the phrase " in association with a criminal street gang" was prejudicial. Accordingly, the state appellate court's denial of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

C. CALJIC No. 8.81.17

At trial, the jury was instructed with part of CALJIC No. 8.81.17, as follows:

To find that the special circumstance referred to in these instructions as murder in the commission of robbery is true, it must be proved: [¶ ] 1a. The murder was committed while a defendant was engaged in or was an accomplice in the commission or attempted commission of a robbery; or [¶ ] 1b. The murder was committed during the immediate flight after the commission or attempted commission of a robbery by the defendant to which the defendant was an accomplice.

(CT 595). Petitioner argues that it was error to omit the remaining part of the instruction, which read:

2. The murder was committed in order to carry out or advance the commission of the crime of [robbery] or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [robbery] was merely incidental to the commission of the murder.

(Lodgment No. 7 at 24).

The California Court of Appeal rejected the claim, finding that there was no error or constitutional violation in omitting the language because " there was no evidence of a robbery in the commission of a murder." (Lodgment No. 7 at 24). The Court agrees. Under California law, " [t]he second paragraph of CALJIC No. 8.81.17 is appropriate where the evidence suggests the defendant may have intended to murder his victim without having an independent intent to commit the felony that forms the basis of the special circumstance allegation." People v. Navarette, 30 Cal.4th 458, 505, 133 Cal.Rptr.2d 89, 66 P.3d 1182 (2003). Here, the victim was an unwitting customer, who happened to walk into the video game store while petitioner and his fellow gang members were stealing money, video games, and a cell phone. There simply was no evidence at trial from which the jury could have reasonably concluded that the special circumstance was not proven because the robbery was merely incidental to the murder. Thus, petitioner has failed to establish that the instruction was erroneous, let alone an error that " so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 71-72. Accordingly, the state appellate court's denial of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

D. CALJIC No. 2.21.2

At trial, the jury was instructed with CALJIC No. 2.21.2, which read:

A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.

(CT 564). Petitioner argues that this instruction allowed the jury to evaluate witness testimonial evidence under a probability standard, thereby lowering the prosecution's burden of proving the offenses beyond a reasonable doubt. (Petition at 5m; Traverse at 42-46). The California Court of Appeal found that the instruction was proper under state law and that the instructions " as a whole correctly instructed the jury on the prosecution's burden of proof." (Lodgment No. 7 at 25 (internal quotation marks omitted)).

The Ninth Circuit has determined that CALJIC No. 2.21.2 does not violate due process. Turner v. Calderon, 281 F.3d 851, 866 (9th Cir. 2002) (" When viewed in the context of the instructions as a whole, the willfully false witness instruction [CALJIC 2.21.2] did not render [petitioner's] conviction constitutionally invalid."). Numerous federal district courts have found that the instruction does not reduce the prosecution's burden of proof. See, e.g., Nhep v. Foulk, 2014 WL 3379319, at *2 (N.D. Cal. Jul. 10, 2014) (" CALJIC 2.21.2, considered in the context of the jury instructions as a whole, did not reduce the prosecution's burden of proof."); Horton v. McWean, 2012 WL 6110488, at *29 (C.D. Cal. Nov. 5, 2012) (" There is no reasonable likelihood that the jury interpreted CALJIC No. 2.21.2 to mean that it could convict Petitioner if it found the testimony of prosecution witnesses to be 'probably' true."); Alder v. Harrington, 2012 WL 293451, at *3 (N.D. Cal. Jan. 31, 2012) (rejecting petitioner's claim that CALJIC No. 2.21.2 diminished prosecution's burden of proof).

Here, the instruction on witness credibility applied equally to prosecution and defense witnesses. Furthermore, the trial court also instructed the jury with CALJIC No. 1.01 -- which required the jury to " [c]onsider the instructions as a whole and each in light of all the others" -- and CALJIC No. 2.90 -- which gave the prosecution the " burden of proving [petitioner] guilty beyond a reasonable doubt." (CT 550, 579). In light of the instructions as a whole and the entire trial record, there is no " reasonable likelihood" that the jury applied CALJIC No. 2.21.2 in a way that lowered the state's burden of proof. Waddington, 555 U.S. at 191. Accordingly, the state appellate court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

GROUND FOURTEEN: FELONY-MURDER SPECIAL CIRCUMSTANCE RULE

In Ground Fourteen, petitioner argues that California's felony-murder special circumstance rule is unconstitutional because it fails to adequately narrow the class of persons subject to life without parole. (Petition at 5n; Traverse at 47-51). The California Court of Appeal rejected the claim, finding that the California " Supreme Court has repeatedly rejected such challenges." (Lodgment No. 7 at 26). To the extent petitioner is arguing that the state supreme court is wrong, this Court is bound by the state court's interpretation of its own laws. Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). Moreover, petitioner cannot obtain habeas relief because he has not explained how this decision ran counter to clearly established federal law as determined by the United States Supreme Court.

Although the Supreme Court has held that the Eighth Amendment requires " a capital sentencing scheme [to] genuinely narrow the class of person eligible for the death penalty, " Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (citations omitted), there is " no comparable requirement" for non-capital sentences. Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In fact, as respondent points out, the United States Supreme Court has never raised a constitutional concern with California Penal Code § 190.2. See Tuilaepa v. California, 512 U.S. 967, 975-80, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). For these reasons, the state appellate court's decision was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See Perez v. California, 2009 WL 800229, at *11 (E.D. Cal. Mar. 24, 2009) (rejecting challenge to California Penal Code § 190.2 because " neither the United States Constitution nor federal law mandates a narrowing requirement for non-capital sentences").

GROUND FIFTEEN: SUBSTITUTION OF COUNSEL

Finally, in Ground Fifteen, petitioner claims that the trial court's failure to conduct a Marsden hearing[7] to allow him to seek new counsel to assist in filing a motion for new trial at the time of his sentencing violated his constitutional rights. (Petition at 5o; Traverse at 51-52). In denying petitioner's claim, the California Court of Appeal found that petitioner never requested a delay in the sentencing or a substitution of counsel which would have required a Marsden hearing:

At the time of sentencing, [petitioner's] attorney, Mr. Murphy, was engaged in trial elsewhere. [Petitioner] expressly agreed Mr. Alvarez's counsel would represent both defendants. The trial court inquired: " [G]entlemen, you each have the right to separate counsel at all stages of the proceedings. [¶ ] Is it agreeable with you, [petitioner] and Mr. Alvarez, that Mr. [Albert] DeBlanc handle the sentencing for both of you in the absence of Mr. Murphy?" [Petitioner] answered: " Yes. As of now, yes." It was agreed, however, that [petitioner] could address the court. [Petitioner], " addressing the court for appellate purposes, " discussed trial error. The matter then proceeded to sentencing. On appeal, [petitioner] asserts the trial court denied his continuance request and his " attempt at" a Marsden hearing. (People v. Martinez ( 2009) 47 Cal.4th 399, 418, 97 Cal.Rptr.3d 732, 213 P.3d 77; People v. Marsden ( 1970) 2 Cal.3d 118, 126, 84 Cal.Rptr. 156, 465 P.2d 44.) [Petitioner] did not request a continuance. He did not show any good cause for a continuance. As a result, his claim has no merit. (See § 1050; People v. Riggs ( 2008) 44 Cal.4th 248, 296, 79 Cal.Rptr.3d 648, 187 P.3d 363; People v. Roldan ( 2005) 35 Cal.4th 646, 670, 27 Cal.Rptr.3d 360, 110 P.3d 289, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) [Petitioner] also did not request a hearing be held on the issue of substitution of counsel. He did not request substitution of counsel. As a result, no duty to conduct a hearing on a substitution of counsel request was triggered. (People v. Martinez, supra, 47 Cal.4th at p. 418; People v. Dickey ( 2005) 35 Cal.4th 884, 920, 28 Cal.Rptr.3d 647, 111 P.3d 921.)

(Lodgment No. 7 at 27-28).

The Court agrees that petitioner's claim lacks a factual basis for relief. First, petitioner explicitly agreed to allow Alvarez's counsel to represent him at the sentencing hearing because his counsel was engaged in trial elsewhere. (RT 2402-03). Nevertheless, petitioner was allowed to address the court about any concerns he had prior to sentencing. (RT 2408). At that time, petitioner stated the following:

In regards to the trial period overall, there's a number of things that, like before in the middle of trial we actually had a Marsden hearing. Today, if that's going to be necessary, I was going to go into a Marsden hearing again about my complaints about my attorney in regards to effective representation. There's a number of things that weren't done in regard to prepare adequately for trial. My attorney merely took me to trial only on the police report.

(RT 2408). When the court began to inquire about his complaints, petitioner told the court " I am only addressing the court for appellate purposes." (RT 2408-09). Thereafter, petitioner made no further mention of having a Marsden hearing, and did not request new counsel. (RT 2409-11). Thus, the record supports the California Court of Appeal's finding that petitioner did not request a substitution of counsel at sentencing that required a hearing, but rather was simply documenting his complaints about counsel for appeal. Accordingly, the trial court did not err in failing to conduct a Marsden hearing because there was no explicit request from petitioner. See Brown v. Walker, 2014 WL 4757804, at *13 (N.D. Cal. Sept. 24, 2014) (finding no Marsden hearing was required at sentencing because the petitioner " did not indicate at the sentencing hearing that he still wanted to pursue a Marsden hearing"); see also United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (holding that a trial court is only obligated under the Sixth Amendment to make an inquiry into a defendant's complaints about his attorney when the defendant " makes sufficiently specific, factually based allegations in support of his request for new counsel").

Furthermore, petitioner is entitled to habeas relief for a court's failure to hold a Marsden hearing only if there existed a conflict between petitioner and counsel so great as to deny petitioner effective representation under the Sixth Amendment. See Schell, 218 F.3d at 1026. Petitioner has not come remotely close to meeting that threshold. In fact, petitioner does not cite anything in the record that would have supported a request for new counsel at the time of petitioner's sentencing. For these reasons, the Court finds that the California Court of Appeal's rejection of this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).

VI

RECOMMENDATION

It is recommended that the District Court issue an Order: (1) accepting this Report and Recommendation; and (2) directing that judgment be entered denying the Petition and dismissing this action with prejudice.


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