United States District Court, C.D. California
Larry Navarette, Petitioner, Pro se, Calipatria, CA.
For G D Lewis, Respondent: Lance E Winters, CAAG - Office of Attorney General, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARGARET A. NAGLE, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable George H. King, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.
On May 16, 2012, Petitioner, a prisoner in state custody, filed a habeas petition pursuant to 28 U.S.C. § 2254 (" Petition"). Respondent filed an Answer and lodged the pertinent state record (" Lodg."). Petitioner filed a Traverse. The matter is submitted and ready for decision.
On April 30, 2011, a Los Angeles County Superior Court jury found Petitioner guilty of three counts of second degree robbery, in violation of California Penal Code § 211, and 12 counts of false imprisonment by violence, in violation of California Penal Code § 236. The jury found gang enhancement allegations under California Penal Code § 186.22(b)(1)(B) to be true but rejected the firearm allegations. (1 Supplemental Clerk's Transcript (" SCT") 165-79; 2 SCT 199-202, 240-42.) On June 12, 2009, the trial court sentenced Petitioner to 38 years and eight months in state prison, consisting of 13 years for the substantive offenses and 25 years and eight months for the gang enhancements. (2 SCT 286-96, 312-14.)
Petitioner was tried together with co-defendants Jens Majano, David Monterrosa, and Jose Guevara, who were convicted of the same crimes, with the same enhancements. Petitioner's co-defendants received the same sentence, except that Monterrosa received an additional year based on a prior conviction. (Lodgment (" Lodg.") No. 8 at 2.)
Petitioner appealed. (Lodg. No. 4.) On November 15, 2010, the California Court of Appeal affirmed the judgment in an unpublished opinion. (Lodg. No. 8.) Petitioner filed a petition for rehearing, which was denied. (Lodg. Nos. 9, 10.) He then filed a petition for review in the California Supreme Court. (Lodg. No. 11.) On March 2, 2011, the California Supreme Court summarily denied review. (Lodg. No. 12.)
SUMMARY OF THE EVIDENCE AT TRIAL
The Court has reviewed the record in this case, as well as the California Court of Appeal's summary of the evidence in its opinion on direct appeal. The state court's summary is consistent with the Court's own review of the record. Accordingly, the Court has quoted it below to provide an initial factual overview. The relevant portions of the trial record will be discussed further in connection with the Court's analysis of Petitioner's claims.
A. The Offenses At Porto's Bakery
Jorge Aguilar, a member of the Santeria religion, operated Botanica Elegua (Botanica), an operation that performed spiritual cleansing rituals and tarot card readings. Monterrosa and Eydi Munoz were friends, fellow practitioners of the Santeria religion, and Botanica customers. Aguilar knew Monterrosa and Munoz.
Around Thanksgiving 2007, Munoz, who worked at Porto's Bakery, told Aguilar and Monterrosa that she was upset that Porto's Bakery had not paid her for hours she had worked. Munoz also said that the bakery recently had made about $500, 000 in one day. Monterrosa suggested that they rob the bakery.
Aguilar, Munoz, and Monterrosa had four or five subsequent conversations about robbing Porto's Bakery. Other persons were present during those conversations. During one such conversation, Munoz drew a map of the inside of the bakery. Munoz said the best time to commit the robbery was after the bakery closed and the money was being counted. She said she would take out the trash through the bakery's back door, thus providing the robbers with access to the bakery.
On December 26, 2007, Aguilar, Munoz, and Monterrosa met to discuss the robbery. Among others present were Majano, Navarette, and Guevara. Monterrosa assigned tasks to his co-defendants. Navarette was to tie up people, Guevara was to serve as a lookout, and Majano was to gather the money and take the surveillance video.
On December 28, 2007, defendants and others gathered at Botanica. Monterrosa brought plastic zip ties to tie up people in the bakery. Others brought white dust masks, caps, tape to tie up people, and firearms. Most of those present had walkie-talkies. Defendants and their companions traveled to Porto's Bakery and entered the bakery about 8:20 p.m.
Upon entering Porto's Bakery, the robbers ordered the bakery's employees, at gun point, to get on the ground. The robbers bound the employees with plastic ties. The robbers took money and personal property from various employees, and bakery property including a laptop and a cash counting machine. Two robbers armed with guns forced bakery manager Braulo Garcia to open the bakery's petty cash safe that held $1 and $5 bills and quarters, dimes, nickels, and pennies. One of the robbers emptied this safe. The bakery's accountant testified that the robbers took $11, 177 from the bakery. The bakery was equipped with a video surveillance system consisting of 16 cameras that recorded various actions of the robbers. Portions of the video of the robbery and still photographs taken from the video were shown to the jury.
Aguilar testified that after the robbery, the robbers returned to Botanica where they divided about $11, 000. Cell phone records placed Guevara and Monterrosa near Botanica immediately after the robbery. Defendants were all present when the money was divided. Navarette gave his portion of the proceeds to Guevara as a rent payment. Monterrosa inquired why the surveillance video had not been obtained.
On December 29, 2007, Burbank Police Department officers investigating the Porto's Bakery robbery went to Botanica. A Dodge van and Dodge Intrepid were parked behind Botanica. The police found empty packaging for dust masks, zip ties, a bandana, a beanie cap, a glove, and duct tape inside the van. Inside the Intrepid, the police found a cash register tray, a cash counting machine, knit caps, bandanas, paper money wraps for different denominations, I.D. cards for victims of the Porto's Bakery robbery, a replica handgun, a Porto's Bakery bank vault receipt, a check made out to Porto's Bakery, latex gloves, and zip ties. Inside Botanica, the police found a box labeled " Dimes $250, " other similarly labeled boxes, loose cash, and rolls of coins. The police arrested Aguilar. On December 31, 2007, Mayra Garcia held a New Year's celebration at her house. Robert Martinez, Majano, and Guevara were there. During the party, Martinez overheard Majano and Guevara bragging about a job they had done that went well. Majano and Guevara talked about being " hot" and expressed a desire to move to Texas. Martinez assumed the reference to being " hot" meant that the police were after Majano and Guevara.
On January 1, 2008, the police arrested Majano at Mayra Garcia's house. An officer interviewed Majano and asked Majano to tell him what happened during the robbery. Majano responded, " If I do, the M.S. 13 gang or the Mara Salvatrucha gang would retaliate and kill me." The police arrested Navarette and Guevara later that day, and Monterrosa on February 22, 2008.
On January 2, 2008, Burbank Police Department officers interviewed Navarette. At first, Navarette denied participating in the Porto's Bakery robbery. After an officer showed Navarette photographs from the bakery's surveillance system, Navarette admitted participating in the robbery. Navarette told the officers that he was offered the opportunity to make money by participating in the robbery.
B. The Gang Expert's Testimony
Los Angeles Police Department Officer Rafael Lopez testified as the prosecution's gang expert. Officer Lopez was assigned to a gang task force that primarily focused on violent Hispanic street gangs such as Mara Salvatrucha Trece, which was also known as M.S. 13. Officer Lopez's primary assignment for the prior seven to eight years had been investigating gang crimes committed by M.S. 13. Common symbols used by the gang included the letters " M" and " S, " the number " 13, " and a hand sign known as the " pitch fork."
Officer Lopez testified that Majano had various tattoos associated with M.S. 13, including a tattoo that was associated with an M.S. 13 clique (the Adams Locos clique), and a tattoo that blatantly and obviously advertised Majano's membership in M.S. 13. Officer Lopez testified that a tattoo of three dots in a triangle signified " mi vida loca, " which is Spanish for " my crazy life." Although gang members often had such three-dot tattoos, the tattoo was not specific to M.S. 13, and persons not in a gang could have the same tattoo. Guevara had three-dot tattoos on the left side of his wrist and on the webbing of his left hand. Navarette had a three-dot tattoo on his left wrist.
Officer Lopez testified that during a prior contact with Monterrosa, Monterrosa admitted membership in M.S. 13. Monterrosa had a tattoo of the letters " M.S." that covered his whole chest. Officer Lopez opined that that tattoo stood for " M.S. 13." Monterrosa also had a tattoo of the letters " F.L.S., " which Officer Lopez opined indicated that Monterrosa belonged to the Francis Locos clique. Officer Lopez opined that Monterrosa, Navarette, Guevara, and Majano were members of M.S. 13.
Officer Lopez explained to the jury that respect was one of the driving forces in M.S. 13. Officer Lopez testified that an M.S. 13 gang member built comradeship and trust with, and earned respect from, fellow gang members by committing crimes with them. The more crime a member committed, the more the member would be seen as loyal to the gang, earning the member respect and rank within the gang. Crimes by individual gang members bolstered the gang's reputation. M.S. 13 was a very violent gang. By committing violent crimes, M.S. 13 sent a message to the community and to rival gangs that M.S. 13 was a serious criminal gang that was willing to commit any type of crime.
The prosecutor asked Officer Lopez to assume certain hypothetical facts. The prosecutor asked Officer Lopez to assume, among other facts, that defendants committed a robbery at Porto's Bakery on December 28, 2007, with several other persons; Monterrosa helped plan the robbery and traveled to the bakery with other robbers to serve as a lookout; Navarette and Majano traveled to the bakery with five other persons; Navarette and Majano were dressed in masks and dark clothes; Navarette carried a real firearm and Majano carried a replica firearm; Navarette and Majano entered the bakery, tied up 12 employees, forced the manager to open the safe and give them the money inside, and stole wallets from three employees; Guevara traveled to the bakery where he acted as a lookout for Navarette and Guevara while they were inside committing the robbery; all of " them" communicated by walkie-talkie during the robbery; and after the robbery, " they" returned to a business where they gathered prior to the robbery and divided the " loot." Based on those facts, and given Officer Lopez's opinion that " they" were all members of M.S. 13, Officer Lopez testified that the robbery in the hypothetical could benefit a criminal street gang in several ways.
Officer Lopez explained to the jury that a crime such as the prosecutor described could benefit the gang financially because gangs use money to purchase narcotics and firearms. Officer Lopez further explained that committing a crime such as the prosecutor described would bolster the gang's reputation, causing the gang to gain notoriety as a more violent street gang resulting in more respect for the gang. The individual members who committed the robbery also would benefit financially as whatever they " netted" from the crime was theirs to keep. Participation in the robbery also would benefit the individual members by bolstering their reputation in the gang and respect in the gang.
On cross-examination, Officer Lopez was asked how the robbery would benefit the gang or enhance its reputation in the community if none of the participants " used the words M.S., Mara Salvatrucha, or displayed any of their tattoos" and none of the robbery victims knew the robbers were gang members. Officer Lopez responded that the robbery would still benefit the gang financially.
Officer Lopez further testified that even if the gang did not benefit financially and even if the robbery victims did not know that gang members committed the robbery, he would expect the gang members who participated in the robbery might brag about the robbery to other gang members. The gang and the individual gang members would benefit by the member's ability to brag about having committed the crime. The individual gang members' reputations would increase as they would become known as more loyal and active members of the gang.
(Lodg. No. 8 at 2-8.)
PETITIONER'S HABEAS CLAIMS
1. The specific intent requirement in the gang enhancement statute is unconstitutionally vague.
2. Imposition of the gang enhancement violated Petitioner's due process rights by punishing him for the gang membership of his accomplices.
3. The trial court erroneously instructed the jury regarding the elements of the gang enhancement.
4. The evidence was insufficient to support the jury's true findings on the gang enhancement allegations.
5. Petitioner's counsel was ineffective for failing to object to lay testimony that Petitioner was a member of the Mara Salvatrucha gang.
(Petition at 5-6, Attachment (" Attach.") at 1-9.)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a state prisoner whose claim has been " adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: " (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." See also Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011) (" By its terms § 2254(d) bars ...