United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF THE PETITION
SANDRA M. SNYDER, 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. He contends that prejudicial error violated his Fifth, Sixth, and Fourteenth Amendment rights (1) when the expert witness on gang crime testified regarding Petitioner's specific actions, intent, and motivation rather than rendering an opinion in response to hypothetical questions; (2) when the trial court admitted photographs and a "gang roll call" in the course of the expert's testimony; (3) when counsel failed to object to prejudicial errors in the expert's testimony; and (4) when the trial court failed to include, on its own motion, an instruction of California Penal Code § 246.3 (grossly negligent discharge of a firearm) as a lesser include offense of California Penal Code § 246 (shooting of an occupied vehicle). Having reviewed the petition, the record, and applicable law, the undersigned recommends that the Court deny the petition.
I. Procedural Background
On January 27, 2011, following trial in Fresno County Superior Court, a jury convicted Petitioner of attempted murder (Cal. Penal Code §§ 664 and 187(a)), shooting from a motor vehicle (§ 12034(c)), shooting at an occupied motor vehicle (§ 246), possession of a firearm by a felon (former Cal. Penal Code § 12021(a)(1), and active gang participation (§ 186.22(a)). The jury also found that Petitioner had committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the intent to promote, further, and assist the gang (§ 186.22(b)(1)) and had personally discharged a firearm causing great bodily injury (§ 12022.53(d)). The trial court sentenced Petitioner to a determinate term of 10 years, 8 months' imprisonment and a consecutive indeterminate term of imprisonment of 50 years to life. As a result of this judgment, Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation.
Petitioner filed a direct appeal to the California Court of Appeal, Fifth Appellate District, which affirmed the judgment on March 18, 2013. On June 19, 2013, the California Supreme Court denied Petitioner's petition for review.
Petitioner filed the pending federal petition for habeas corpus on June 17, 2014.
II. Factual Background
On the evening of December 24, 2009, Rosalinda Villarreal and Jaime Ponce, along with their children, were driving home from visiting Villarreal's mother. They were in a gray Chevy Tahoe, a sport utility vehicle (SUV). Villarreal was driving, Ponce sat in the front passenger's seat, and the children sat in back. Around 11:30 p.m., they stopped at a Fastrip in Sanger to get gas. The Fastrip had a store and gas pumps on either side of the store. As Villarreal pulled into the Fastrip lot, a man stood in her way. She waited for him to move and then drove up to the gas pumps. Ponce got out and pumped gas, while Villarreal remained in the car with the children. After he finished pumping gas, Ponce got back into the SUV, and Villarreal asked if he had gotten the receipt. He had not, so Ponce got out of the SUV to retrieve the receipt from the gas pump.
Ponce got the receipt from the gas pump and, as he walked around the SUV to get back to the passenger door, he heard five or six gunshots. According to Villarreal, she saw a pearl white Mitsubishi Galant in front of her, about 14 feet from her SUV. From the back passenger-side window of the Galant, a man "stuck his whole body out, " and shot at the SUV. The shooter had tattoos on both sides of his face and was the same man Villarreal had seen before she pulled up to the gas pumps.
Ponce saw that the passenger window of the SUV had shattered. He felt his stomach getting warm and it became hard to breath[e], and Ponce realized he had been shot. When the shots shattered the window of the SUV, Villarreal turned around to check on her children and saw that they were okay. She could not see Ponce, so she opened her door and called for him. Ponce responded that he had been shot, and Villarreal got out of the car. She pulled up Ponce's shirt because he was holding his stomach with his hand, and she saw blood running down his legs. Ponce was taken to the hospital, where he stayed from December 25 to December 31, 2009. He had two surgeries as a result of his injuries. At trial, the parties stipulated that Ponce had suffered great bodily injury as a result of being shot.
Villarreal described the shooter to the police as a Hispanic male with short hair, skinny, and with tattoos on both sides of his face. The day after the shooting, Villarreal picked Montgomery's photograph out of a photographic lineup of six photos, and she identified him as the shooter at trial. Ponce, however, did not see who had shot him that night.
The Fresno County District Attorney charged Montgomery with five counts: (1) attempted murder of Ponce (§ 664, 187, subd. (a)); (2) shooting from a motor vehicle (§ 12034, subd. (c)); (3) shooting at an occupied motor vehicle (§ 246); (4) possession of a firearm by a felon (former § 12021, subd. (a)(1)); and (5) active gang participation (§ 186.22, subd. (a)). With respect to the first through third counts, it was alleged that the offense was committed for the benefit of the Chankla Bulldog criminal street gang (§ 186, subd. (b)(1)), and that Montgomery had personally and intentionally discharged a firearm causing great bodily injury to Ponce (§ 12022.53, subd. (d)).
A jury trial began on January 18, 2011. Villarreal and Ponce testified about the shooting. Ponce also testified that he had been associated with a gang, the Sanger South Side Sureños, from the time he was 13 years old until he was about 30, but he stopped associating with the gang in 2006. He was not wearing anything to indicate he was a Sureño gang member and he had no visible gang tattoos. Ponce did not know Montgomery, but agreed that in a small town like Sanger it would be common for gang members to recognize their rivals. Ponce explained that Montgomery was younger than he was, and he did not know him because they were not in the same age group.
The prosecution presented two witnesses who placed Montgomery at the Fastrip on the night of the shooting. Kelley Shepherd testified that on the night of December 24, 2009, she asked her mother's roommate, Marcela Gonzales, for a ride to the store. Gonzalez took Shepherd to the Fastrip in her white Mitsubishi Galant. Montgomery, who was Gonzalez's boyfriend, went with them. Montgomery was introduced to Shepherd as "Sparky, " and she did not know his real name. Before that night, Shepherd had seen Montgomery in passing but had not met him. Shepherd sat in the front passenger seat, Gonzalez drove, and Montgomery sat in the back seat on the right side. Shepherd, who had been drinking that day, and Gonzalez went inside the store to buy alcohol. As they went to the register to pay, they saw a television showing surveillance video of the parking lot and saw that Montgomery was not in Gonzalez's car and was walking around in the parking lot. Gonzalez went to the entrance of the store and told Montgomery to get back in the car. Shepherd saw a pickup truck pull up and Montgomery talked to someone in the truck.
Shepherd testified that she and Gonzalez completed their purchase and then went outside. Montgomery would not get in the car. He kept saying something about a scrap, "fuckin' scrap, " and "he was just walking in circles, like he didn't know what to do, like he was confused...." Shepherd and Gonzalez got in the car and were ready to leave Montgomery at the Fastrip. Finally, Montgomery got in the car as they were about to leave. He sat in the back seat directly behind Shepherd and did not say anything. Shepherd testified that they were stopped to pull out of the Fastrip when she heard loud gunshots. She heard Gonzalez say, "What the fuck, Shawn, '" and Shepherd "knew it was him...." Shepherd turned around and saw Montgomery with his arm out the window with a gun. He was pointing the gun at a gas pump where a blue SUV was parked. She thought she heard about four to six shots. After the shooting, Montgomery said he wanted to be dropped off in the Chankla, a neighborhood in Sanger.
Gonzalez also testified. In December 2009, she was renting a place at Shepherd's mother's house and dating Montgomery. Gonzalez confirmed Shepherd's testimony that she drove Shepherd and Montgomery to the Fastrip on the night of December 24, 2009, to buy alcohol. She drove an off-white Mitsubishi Galant. Gonzalez testified, however, that when she and Shepherd went into the store, Montgomery stayed in the car. When she left the store and got into her car, Montgomery was still inside, sitting in the back seat. When she was pulling out of the gas station, Gonzalez "heard gunshots from far away." She did not know what was going on and she did not look around to see where the shots were coming from. Gonzalez testified that she did not see Montgomery with a gun. She testified that she did not remember Montgomery yelling, "What's up, Bulldog'" when the shots were fired. As will be seen, however, in a police interview that day after the shooting, she told police that Montgomery yelled, "What's up, Bulldog?'"
Gonzalez drove home and asked Montgomery what was going on. She then switched cars and dropped Montgomery off at his home.
Sanger Police Officer Brandon Coles testified that he was on duty on December 24, 2009, and responded to a report of a shooting at the Fastrip. He reviewed video surveillance from the store's video cameras with another officer, Tom Reinhart. Reinhart recognized Shepherd from previous investigations, which he described as "[t]ruancy type, runaways, other investigations in the home." An address was located for Shepherd, and Coles and other police officers went to that address, which was Shepherd's mother's house. Gonzalez and Shepherd were both at the house, and they agreed to go to the police station to be interviewed. Coles observed a white Galant in the driveway that matched the car he had seen on the Fastrip surveillance video. In the back seat of the Galant, Coles found a notebook with photographs of Montgomery. On the first page of the notebook was written, "Marcie heart Shawn Montgomery."
On December 25, 2009, Coles interviewed Shepherd and Gonzalez at the police station, and their taped interviews were played for the jury. In her interview, Gonzalez acknowledged that Montgomery did not remain in the car while she and Shepherd were in the Fastrip store, and she told him to get back in the car. She told Coles, "And then when I looked over he was outside the car and I just told him, "Get inside the car, like, you don't need trouble. Just get inside the car.'" Gonzalez saw that an Avalanche truck pulled up and Montgomery talked to somebody. When she returned to her car from the store, she asked Montgomery who it was and he said it was Johnnie. After Gonzalez told him to get in the car, Montgomery "flipped [her] off, " and she had "a feeling it's gonna go bad." As Gonzalez drove out of the Fastrip lot, Montgomery yelled out, "What's up, Bulldog?'" and the shots started firing. Gonzalez turned around and Montgomery's "whole front side" was outside the window of the car. She drove home and then used her roommate's car to drop Montgomery off.
In Shepherd's interview, she described seeing Montgomery talking to someone in a truck. "Shawn was talking with this truck, there was um, a truck and that guy in the truck was saying, Yeah, it's a scrap but, be cool dog.'"
Andrew Simonson of the Fresno County Sheriff's Department testified as "an expert on the area of the Chankla criminal street gang." Simonson worked for the Multi-Agency Gang Enforcement Consortium, assigned to the City of Sanger and the Bulldog criminal street gang. Simonson explained that Sanger has three gangs: the Olivo Street Bulldogs, the Chankla Bulldogs, and the Sanger Sureños. The Chankla Bulldogs identify with the color red, the Fresno State logo, and the bulldog. They also go by "VCKL" and "Varrio Chankla, " and common tattoos associated with the gang are "VCKL, " dog paws, dog collars, and "CKL." The Chankla Bulldogs are part of the overall Bulldog gang, which is a criminal street gang specific to Fresno County. They get along with most subsets of the Bulldogs, except the Olivo Street Bulldogs, who are their rivals. The Sanger Sureños are rivals of all Bulldogs, including the Chankla Bulldogs. Simonson testified that the Chankla Bulldogs had approximately 110 members.
Simonson discussed several predicate offenses committed by Chankla Bulldog gang members. In one of the offenses, Johnny Valencia, a Chankla Bulldog gang member, stabbed a victim whom he believed was a rival Sanger Sureño. Right before the attack, Valencia said, "What up, dog?'" In another case, two Chankla Bulldog gang members, Nestor Retamoza and Frank Subia, chased down a victim and stabbed him several times. Simonson testified that the primary activities of the Chankla Bulldogs are possession of dangerous weapons, drive-by shootings, and assaults.
Simonson reviewed police reports and other documents related to Montgomery and put together a gang report. He explained that the sheriff's department uses a 10-point criteria system to determine whether someone is a gang member. These points include having gang tattoos, admitting gang membership to police, and being contacted by police while in the company of known gang members. In addition, jail classification-when a person admits to jail custody staff that he is a gang member-is a stand-alone criterion for determining gang membership. Simonson found that Montgomery met all 10 points and the separate criterion of jail classification. There were 13 documented instances of Montgomery being ...