United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION
JACQUELINE CHOOLJIAN, Magistrate Judge.
On July 13, 2012, petitioner, who is in state custody and is proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") challenging a criminal judgment in Los Angeles County Superior Court on multiple grounds.
On January 18, 2013, respondent filed an Answer ("Answer") and lodged multiple documents ("Lodged Doc."), including the Clerk's Transcript ("CT") and the Reporter's Transcript ("RT"). On March 28, 2013, petitioner filed a Traverse ("Traverse").
The parties have consented to proceed before the undersigned United States Magistrate Judge.
For the reasons explained below, the Petition is denied and this action is dismissed, in part with prejudice, and in part without prejudice.
II. PROCEDURAL HISTORY
On February 3, 2010, a Los Angeles County Superior Court jury found petitioner guilty of attempted premeditated murder (Cal. Penal Code §§ 664/187(a) count 1), possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1); count 2), street terrorism (Cal. Penal Code § 186.22(a); count 4), second degree robbery (Cal. Penal Code § 211; count 5), driving on a license suspended for a prior driving under the influence (DUI) conviction (Cal. Vehicle Code § 14601.2(a); counts 6 & 7), and resisting, obstructing, or delaying a peace officer or EMT (Cal. Penal Code § 148(a)(1); counts 8 & 9). (CT 163-71). The jury also found true, among other allegations, that: (1) petitioner committed the offenses charged in counts 1, 2, 5, 6 and 7 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (Cal. Penal Code § 186.22(b)(1) [counts 1, 2 & 5]; Cal. Penal Code § 186.22(d) [counts 6 & 7]); (2) as to count 1, a principal personally and intentionally discharged a firearm which proximately caused great bodily injury to the victim (Cal. Penal Code §§ 12022.53 (d), (e)(1)); and (3) as to count 5, a principal personally used a firearm (Cal. Penal Code §§ 12022.53(b), (e)(1)). (CT 163-69).
Petitioner thereafter waived his right to trial on prior conviction allegations and, on March 3, 2010, admitted that he had suffered a prior conviction for possession of a firearm by a felon on September 23, 2002 and a prior conviction for assault with a deadly weapon on November 7, 2005. (RT 2402-05).
On March 24, 2010, the trial court sentenced petitioner to a total of 62 years and four months to life in state prison. (CT 224-33).
On June 22, 2011, the California Court of Appeal affirmed. (Lodged Doc. 6). On September 28, 2011, the California Supreme Court denied petitioner's petition for review. (Lodged Doc. 8).
On March 23, 2012, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which such court denied on June 13, 2012, with a citation to People v. Duvall , 9 Cal.4th 464, 474 (1995). (Lodged Docs. 9-10).
A. The Attempted Murder of Saunoa Joseph Laumua
On January 13, 2008, at approximately 8:00 p.m., Saunoa Joseph Laumua, who is in a wheelchair, was shot on his way to a Baskin-Robbins in Cerritos. As he wheeled himself down Ely Avenue, a green van drove up to him and the men inside asked, "Where you from?" When Laumua said, "I'm from nowhere, " the men responded, "Yeah, you're Sporty from Artesia." Laumua said, "I'm in a wheelchair. I don't bang no more." The driver then instructed the passenger to shoot Laumua and "finish him." The van sped away when neighbors yelled that they had called the police and that the men should leave Laumua alone because he was in a wheelchair. Police found Laumua lying on the sidewalk in a small pool of blood and in pain. Laumua was shot under the right armpit and the bullet lodged in his back. Laumua was taken to the hospital and remained there for approximately two and a half weeks.
J.V. was sitting in his parked car nearby when he heard three gunshots. He then saw a dark minivan speed by, either a Dodge Grand Caravan or a Plymouth Voyager, and memorized a partial license plate, "5PG." At trial, J.V. testified that a photograph of petitioner's van was similar to the van he saw the day Laumua was shot. Deputy Sheriff John Lozada recovered four shell casings and two bullet fragments within five to six feet of where Laumua had fallen.
B. The Robbery of D.A.
On January 17, 2008, at approximately 11:25 p.m., D.A. and M.B. were robbed as they walked home from work. A dark green van pulled in front of them and two men got out of the van. M.B. was able to get away, but the men grabbed D.A. One of the men put a gun to D.A.'s left temple and demanded, "Give me whatever you have. Otherwise we're going to shoot you." D.A. complied and gave the men his wallet and cell phone. The driver, who had remained in the van, told the two men to "[h]urry up. Come back. Let's go. Let's go." D.A. wrote down the license plate number - 5PGK698 - as the van drove away. At trial, D.A. identified the gun that was used as well as the dark green van and one of the robbers.
The green van was spotted by sheriff deputies at approximately 1:30 a.m. that night in Hawaiian Gardens. They observed petitioner driving and getting out of the van. After a brief pursuit, which ended in petitioner being bitten by a police dog, petitioner was arrested in connection with the robbery of D.A. A search of the van revealed a gun with a magazine containing five rounds in it as well as one round in the chamber. A second magazine was found next to the gun. Black gloves, some compact discs marked "H.G." and "M.D.T.S." and a digital scale were also found in the van. The bullet fragments found near the shooting of Laumua were found to have been fired from the gun. In addition, petitioner's DNA was found on it.
Andrew Duran was a minor when he was arrested on February 5, 2008, in connection with the robbery of D.A. and an unrelated attempted murder. He pled no contest to both charges and was sentenced as an adult to nine years in state prison. In a taped interview, which was played to the jury, he told police that petitioner picked him up in a van along with another man, "Robbie." They rode around in the van to see if they could "find something." When they saw D.A. and M.B., petitioner threw a gun to Robbie and said, "Get em, get em." At trial, Duran denied any knowledge of the robbery or of his interview with the detectives. Detective Gary Sloan of the Los Angeles County Sheriff's Department testified that Duran admitted during an interview that petitioner was his friend and that petitioner was the driver of the green van at the time of the robbery. Detective Brandt House, Sloan's partner, identified tattoos on Duran's body as Hawaiian Gardens gang tattoos. House explained that Duran could be labeled a snitch if he testified against petitioner and would be marked for death by gang members as a result.
C. The Trial
At trial, the prosecution presented testimony and evidence as described above. The prosecution also presented testimony from Detective House, who qualified as a gang expert. House testified that respect was important to gang members and that they committed crimes to garner respect and elevate their status within the gang. Gang members also had gang-related tattoos to show pride in their gang. A gang member who had a reputation for cooperating with law enforcement or snitching, however, would eventually be marked for death. House testified that it was very difficult to get witnesses or victims to testify in court about gang crimes. According to House, the question, "Where are you from" was a gang challenge that alerted the person questioned to an imminent assault.
Detective House also testified to the Hawaiian Gardens gang specifically, stating that they had been in existence since the late 1950's and had over 1, 000 documented members, over 250 documented affiliates and claimed the entire City of Hawaiian Gardens. The common abbreviations for the gang were "H.G., " which stood for Hawaiian Gardens, "M.D.T.S., " which stood for Malditos, "V.H.G., " which stood for Varrio Hawaiian Gardens, and "L.Q.T.S., " which stood for Loquitos. The primary activities of Hawaiian Gardens were aggravated assault, murder, attempted murder, assaults with guns, petty theft, robbery, extortion, hate crimes against African-Americans, possession of firearms and narcotics for sale and possession of stolen vehicles. Hawaiian Gardens gang's primary enemies were Artesia and Chivas.
As to Laumua, Detective House testified that he observed tattoos all over his body, including on his head and neck, which marked him as an Artesia gang member. House further testified that Laumua was a respected member of the Artesia gang and he had been credited with committing several crimes in the Hawaiian Gardens area. As a result, a Hawaiian Gardens gang member who shot and killed Laumua, a "high value target, " would garner much respect and status in the gang. In fact, four previous attempts had been made on Laumua's life by Hawaiian Gardens gang members.
As to petitioner, Detective House testified that he had a large "H" and "G" tattooed on his arms with "Hawaiian" and "Gardens" tattooed beneath the corresponding letter. House noted petitioner lived in Hawaiian Gardens and both his brothers were Hawaiian Gardens gang members. Further, a field interview card showed that petitioner admitted his gang membership when he was found in the company of five other Hawaiian Gardens gang members with a nine-millimeter pistol and marijuana. In response to several hypotheticals that closely tracked the facts in the case, House opined that the crimes at issue were committed for the benefit of a street gang.
At trial, Laumua refused to answer any of the prosecutor's questions, invoking his Fifth Amendment privilege against self-incrimination. As a result, Laumua's testimony at the preliminary hearing was read to the jury. Laumua testified at the preliminary hearing that he had been an Artesia gang member since he was 16 and was known as "Moreno." He also testified that Artesia's main enemies were Hawaiian Gardens and Norwalk. Laumua acknowledged that members of his gang did not like rats or snitches who talked to the police or testified in court. Laumua denied telling the detectives any details of the shooting in his interviews with them, including identifying the shooter or the van. He stated he was taking morphine and vicodin at the time of his interviews and he did not remember anything he told the detectives. He also denied telling his mother anything more than that he had been shot and had fallen out of his wheelchair.
Laumua was impeached at the preliminary hearing by the recordings of his interviews with the police, by Detective House's testimony about those interviews and by his mother's testimony regarding his statements to her about the shooting. Laumua's mother testified at the preliminary hearing that she spoke to Laumua about the shooting and his account of the shooting was consistent with the events described above. She stated that Laumua told her the van in question was just like her Dodge Grand Caravan and that he knew the men involved in the shooting because he had been in jail with one of them. She also testified that Laumua told her he identified both the shooter and the driver from a photographic lineup but was afraid to testify in court for fear of retaliation. On cross-examination, defense counsel questioned her regarding her son's incarceration and his identification of the suspects, including his description of them.
At the preliminary hearing, Detective House testified that Laumua described the shooting in detail during his interviews with him. House confirmed that Laumua circled petitioner's picture in a photographic lineup, identifying him as the driver of the van and also identified the green van driven by petitioner. House further testified that Laumua did not appear incoherent, did not slur, did not nod off and never appeared unable to understand questions when he interviewed him at the hospital or later at his home. Laumua's tape-recorded interviews with the police were played to the jury, who heard that he circled someone's picture from a photographic lineup, discussed the details of the shooting with the officers, and identified the green van from a photograph.
The defense presented testimony from two witnesses who lived near the intersection where Laumua was shot. They were both home that evening and heard the gunshots. One witness testified that she saw a dark-colored SUV in the area and both testified that no one was near the victim after the shooting.
IV. STANDARD OF REVIEW
This Court may entertain a petition for writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court may not grant an application for 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).
In applying the foregoing standards, federal courts look to the last reasoned state court decision. See Smith v. Hedgpeth , 706 F.3d 1099, 1102 (9th Cir.), cert. denied, 133 S.Ct. 1831 (2013). "Where 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 (1991) (cited with approval in Johnson v. Williams , 133 S.Ct. 1088, 1094 n.1 (2013)); Cannedy v. Adams , 706 F.3d 1148, 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to "look through" summary denials of discretionary review to the last reasoned state-court decision), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001 (2014).
However, to the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and consequently, whether the state court's decision was objectively unreasonable. Delgado v. Lewis , 223 F.3d 976, 982 (9th Cir. 2000), abrogated on other grounds, Lockyer v. Andrade , 538 U.S. 63, 75-76 (2003); see also Harrington v. Richter , 562 U.S. 86, 131 S.Ct. 770, 784 (2011) ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief."); Cullen v. Pinholster , 131 S.Ct. 1388, 1402 (2011) ("Section 2254(d) applies even where there has been a summary denial.") (citation omitted).
When it is unclear whether deference under the foregoing standards applies, federal habeas courts can deny writs of habeas corpus under Section 2254 by engaging in a de novo review. Berghuis v. Thompkins , 560 U.S. 370, 390 (2010). When it is clear that the state court has not decided an issue on the merits, or when a state court's adjudication of a claim on the merits results in a decision contrary to or involving an unreasonable application of clearly established federal law or is based on an unreasonable determination of the facts, review is also de novo. See Cone v. Bell , 556 U.S. 449, 472 (2009); Panetti v. Quarterman , 551 U.S. 930, 953 (2007); Hurles v. Ryan , 752 F.3d 768, 778 (9th Cir.), cert. denied, 135 S.Ct. 710 (2014).
Petitioner claims he is entitled to federal habeas relief because: (1) evidence introduced at his trial was the product of a search and seizure which violated the Fourth Amendment and his trial and appellate counsel were ineffective in failing to so argue (Claim 1); (2) the trial court violated petitioner's due process and confrontation rights by excluding evidence that Detectives Sloan and House had been accused of fabricating reports and lying on the stand (Claim 2); (3) the trial court violated petitioner's confrontation rights in admitting Laumua's preliminary hearing testimony and evidence of Laumua's prior inconsistent statements which were introduced at the preliminary hearing (Claim 3); (4) the admission of evidence regarding petitioner's prior criminal history violated due process and trial counsel was ineffective in not objecting thereto (Claim 4); (5) the trial court improperly permitted the gang expert to opine about petitioner's specific intent (Claim 5); (6) the prosecutor committed misconduct in closing argument by vouching for the credibility of Detectives Sloan and House based on facts which were not in evidence; and (7) errors at trial cumulatively deprived him of due process. (Petition at 5-6, 12-50). Petitioner is not entitled to federal habeas relief on any of his claims.
A. Petitioner Is Not Entitled to Federal Habeas Relief on Claim 1 - Fourth Amendment - Related Ineffective Assistance of Counsel
Petitioner contends that he is entitled to habeas relief because the introduction of evidence derived from an allegedly unconstitutional search of his van at an impound lot - namely the firearm used in the attempted murder and robbery bearing petitioner's DNA - violated his Fourth Amendment right to be free from unreasonable searches and seizures. (Petition at 5, 12-24; Traverse at 7-8, 13-17). He also claims that his trial counsel was ineffective in failing to move to suppress such evidence, and that his appellate counsel was ineffective in failing to assert a Fourth Amendment claim on direct appeal. (Petition at 12, 22-24; Traverse at 7-8, 18-19). The California Supreme Court - the only state court to have considered such claims - rejected them with a citation to People v. Duvall , 9 Cal.4th 464, 474 (1995). Respondent argues that the Fourth Amendment claim is not cognizable on federal habeas review, that such claim and the related ineffective assistance of counsel claims are unexhausted, and that, in any event, petitioner's contentions lack merit. (Answer at 9-18). Petitioner responds that the Fourth Amendment claim is exhausted and should be considered on its merits (Traverse at 8-10), but that, in the event the Court concludes that the related ineffective assistance of counsel claims are unexhausted, petitioner wishes to withdraw them and asks that the Court dismiss them. (Traverse at 10).
First, the Court addresses petitioner's Fourth Amendment claim. Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. See Stone v. Powell , 428 U.S. 465, 494 (1976). California affords such an opportunity to criminal defendants under state law. See Gordon v. Duran , 895 F.2d 610, 613 (9th Cir. 1990). In this case, petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in state court by virtue of California Penal Code § 1538.5. The fact that petitioner and his counsel did not avail themselves of such an opportunity is immaterial. Ortiz v. Sandoval, 81 F.3d 891, 899 (9th Cir. 1996) (relevant inquiry is whether petitioner had opportunity to litigate his claim, not whether he did in fact do so or even whether claim was correctly decided) (citations omitted). Accordingly, petitioner's Fourth Amendment claim is not cognizable on federal habeas review and must be rejected.
Second, the Court addresses respondent's contention that petitioner's related ineffective assistance of counsel claims are unexhausted. As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See O'Sullivan v. Boerckel , 526 U.S. 838, 844 (1999) ("Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief."); see also Rose v. Lundy , 455 U.S. 509, 518-22 (1982); Park v. California , 202 F.3d 1146, 1150 (9th Cir.), cert. denied, 531 U.S. 918 (2000).
Title 28, United States Code, section 2254(b)(1), explicitly provides that a habeas petition brought by a person in state custody shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the ...