United States District Court, Eastern District of California
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation after having been convicted by a jury in 2010 of: (1) shooting from a car (Pen. Code § 12034(c)); (2) assault with a semiautomatic firearm (Pen. Code § 245(b)); (3) being a felon in possession of a firearm (§ 12021(a)(1)); (4) possessing methamphetamine (Health & Saf. Code § 11377(a)). (Lodged Documents (“LD”) 4). He was sentenced to a prison term of ten years, four months plus and an indeterminate sentence of 25 years-to-life. Id.
After his conviction, Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the “5th DCA”), which affirmed Petitioner’s conviction. (LD 4). Petitioner then filed a petition for review in the California Supreme Court which was summarily denied on February 16, 2011. (LD 6).
In this current action, Respondent concedes that ground three in the petition has been fully exhausted, but maintains that the remaining four claims for relief are unexhausted. (Doc. 14, p. 9).
The Court adopts the Statement of Facts in the 5th DCA’s unpublished decision: Elita Arredondo drove Alejandrez, her boyfriend (later her husband), to Las Palmas Masonic Center in Fresno on the night of May 24, 2008, to pick up their friend, Yvette Loya. Loya was attending a wedding reception there. Arredondo parked near the front entrance. Alejandrez got out of the car. Loya waved to him through the glass of the entranceway, then disappeared into the building to say goodbye to her family.
While he was waiting for Loya to return, Alejandrez became involved in an argument with Esperanza Garcia. Garcia and Annabell Valles were the parties who had gotten married that day. Someone asked Garcia to let Alejandrez in, but she refused because Alejandrez did not have an invitation and Garcia did not know him. Garcia went outside and told Alejandrez to leave. She also asked a security guard to remove him. Alejandrez said, “[M]ake me leave.” He called Garcia a “dyke bitch, ” among other things. Garcia went back in the building, but by this time a crowd of 10 to 15 wedding guests had gathered outside, angered by the slurs Alejandrez had used. Alejandrez continued the argument with the guests. Guests yelled to Alejandrez that he should leave. Some people present heard Alejandrez shout “DLG” and yell that his name was “Wolfy, ” although Alejandrez later denied doing so. DLG stands for Dog Life Gangsters, a subgroup of the Bulldogs gang, of which Alejandrez was once a member. Security guards began trying to corral the guests back into the building. Alejandrez later claimed he believed the crowd was attacking him, and that one member of it took off his jacket and assumed a fighting stance while others closed in around him. Someone was pounding on Arredondo's car.
Alejandrez pulled a gun from his waistband, a Walther semiautomatic pistol. He waved it in the air and pointed it at the crowd of wedding guests. As he did so, guests heard him say “this is DLG” and tell the crowd to get back. Again, he later denied saying anything about DLG. The wedding guests started moving into the building. A security guard saw Alejandrez fire a few shots. A bullet hit a parked car. Then Alejandrez got into the back seat of Arredondo's car, on the passenger side. As Arredondo drove away, the wedding guests all went into the building, but one security guard remained outside. Alejandrez reached out the window and over the car's roof and fired more shots toward the building.
One shot fired from the car hit the security guard's leg. An ambulance took him to a hospital. An emergency room doctor removed the bullet using local anesthesia and then released the guard. The guard received follow-up treatment for the wound for about a year.
Police found Alejandrez and Arredondo still in the car the same night. The gun was in his waistband and gunshot residue was on his hands. A spent shell casing was found in the car. It was of the same type as eight more spent shell casings located at the scene of the shooting and the live rounds that were in the gun. Also found in the car were a small scale and a plastic bag containing some smaller bags and a white powder later identified as methamphetamine. Alejandrez admitted the gun and the drugs belonged to him.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
II. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court’s adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. at 412-413.
A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000). Consequently, a federal court may not grant habeas relief simply because the state court’s decision is incorrect or erroneous; the state court’s decision must also be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 511 (2003) (citing Williams v. Taylor, 529 U.S. at 409).
In Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. If fairminded jurists could so disagree, habeas relief is precluded. Harrington, 131 S.Ct. at 786. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “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 of fairminded disagreement.” Harrington, 131 S.Ct. at 787-788.
The second prong of federal habeas review involves the “unreasonable determination” clause of 28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the petitioner’s claims “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.” Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court’s factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court decided the petitioner’s claims on the merits but provided no reasoning for its decision, the federal habeas court conducts “an independent review of the record...to determine whether the state court [was objectively unreasonable] in its application of controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “[A]lthough we independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).
III. Review of Petitioner’s Claims.
The instant petition itself alleges the following as grounds for relief: (1) the trial court erred in refusing to bifurcate the charges and enhancements related to Petitioner’s gang involvement; (2) the trial court violated Petitioner’s due process rights by refusing to stay the sentence in count II; (3) the trial court erred in instructing the jury on shooting from a car; (4) insufficient evidence was presented that the security guard suffered great bodily injury; and (5) clerical error in the abstract of judgment.
A. Failure to Bifurcate Gang Charges
Petitioner first contends that his constitutional rights were violated when the trial court refused to bifurcate the gang-related charges and enhancements. This contention is without merit.
1. The 5th DCA’s Opinion.
The 5th DCA rejected Petitioner’s claim as follows:
Alejandrez made a motion to bifurcate the trial so the gang-enhancement allegations could be presented to the jury separately from the remainder of the case. The court denied the motion. Alejandrez claims this was error.
A trial court is authorized to bifurcate a criminal trial if presentation of evidence on one issue might cause prejudice to the defendant on another issue. For instance, “unique prejudice ... may ensue if the jury that determines guilt also learns of the defendant's status as a person with one or more prior convictions.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Evidence used to support a gang enhancement, such as predicate offenses used to establish a pattern of gang activity, can have this kind of prejudicial effect. (Id. at p. 1049.) To show that a motion to bifurcate should be granted, a defendant must “ ‘clearly establish that there is a substantial danger of prejudice....’ “ (Id. at p. 1051.) We review the trial court's decision not to bifurcate for an abuse of discretion. ( Id. at pp. 1048, 1051.)
We agree with the People's view that the court did not abuse its discretion. Alejandrez requested that the gang enhancements be tried separately from the substantive offenses of which he was accused, but he never requested that the gang offense, count five, be separately tried. Generally speaking, the evidence supporting the gang enhancements and the evidence supporting the gang offense would be cross-admissible. Where evidence supporting a gang enhancement is also admissible to prove guilt of an offense, “any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Hernandez, supra, 33 Cal.4th at p. 1050.) Alejandrez does not argue that the court should have proposed on its own motion to separate the trial of the gang offense from the trial of the other offenses or that his trial counsel afforded him ineffective assistance by failing to request that procedure.
Alejandrez argues in his reply brief that some of the evidence supporting the gang enhancements would not be admissible to prove the gang offense. In particular, he claims that, while the prosecution had to show he committed the current offenses for the benefit of a criminal street gang, this “was not required to be proven for the substantive crime” of street gang participation. Alejandrez is correct that this was not required to prove the offense, but it was relevant to the offense, since a defendant who commits a current offense for the benefit of a gang is likely to be a participant in the gang. Alejandrez also claims that, in a separate trial of his substantive offenses, the prosecution's gang expert could not have testified about the origins of the Bulldogs gang or its violent activities. This is not correct. Since the substantive offenses included participation in a gang, the expert's testimony would have been relevant.
Further, some of the gang evidence was cross-admissible for the other offenses. Evidence of gang relatedness is unlike evidence of unrelated priors in that some of it is part of the circumstances of the charged offense itself, even if the charged offense is something other than the offense of gang participation. “A gang enhancement is different from [a] prior conviction.... A prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Hernandez, supra, 33 Cal .4th at p. 1048.) In this case, contrary to Alejandrez's claim, there was evidence that he called out the name of a gang, DLG, during the commission of the offenses charged in counts one and two. Two witnesses (not only one, contrary to Alejandrez's contention) testified about this at trial—Officer Derrick Johnson and Annabell Valles. Johnson said Esperanza Garcia told him she heard Alejandrez say “what's up, what's up, this is DLG” as he waved the gun. This hearsay evidence was admissible because it contradicted Garcia's trial testimony that she was already inside the building by the time Alejandrez pulled the gun and did not remember hearing Alejandrez say those things. Valles said she heard Alejandrez yell “Wolfy, DLG, Wolfy, Wolfy.” This evidence was relevant to counts one and two because it could have shown Alejandrez's motive for the shooting. Consequently, other evidence about the gang, including the gang expert's testimony about the gang's existence and violent practices, was also relevant to prove counts one and two. In light of this, there was little danger of any prejudice arising from the denial of the motion to bifurcate.
People v. Memory (2010) 182 Cal.App.4th 835, on which Alejandrez relies, is not to the contrary. In that case, there was no evidence that the underlying crime had a gang-related motive. In fact, there was no gang charge or gang-enhancement allegation at all in Memory and the court held that the evidence was not probative on any significant issue and had little purpose but improperly to show criminal disposition and undermine the defendants' credibility. (Id. at p. 838.) The present case is not similar.
Finally, even if the court had been wrong to deny the motion, we would not reverse the judgment, for the mistake would have been harmless under any standard. The jury rejected the prosecution's gang claims. It found that Alejandrez did not commit the present offense for the benefit of a criminal street gang and that he was not guilty of participating in a criminal street gang. There is no genuine chance that merely hearing the gang evidence it rejected caused the jury to find Alejandrez guilty of shooting from a car and assault with a semiautomatic firearm when it would have found him not guilty otherwise. Alejandrez claimed he fired to defend himself against the crowd and that the gang evidence damaged the credibility of this claim. A claim of self-defense, however, would not explain why Alejandrez shot a security guard as he was being driven away after the crowd had gone ...