Prum v. Macomber

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for first degree murder with gang enhancements, for which he was sentenced to a prison term of life without the possibility of parole, and related offenses, for which he received multiple consecutive terms ranging from five years to twenty-five-years-to-life. (ECF No. 1 ("Ptn.").) Respondent filed an answer to the petition, and petitioner filed a traverse. (ECF Nos. 15, 17.) Upon careful consideration of the record and the applicable law, the undersigned will recommend that the petition be denied.

         BACKGROUND

         I. Facts

         In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, set forth the relevant factual background as follows:

Members of the Bloods street gang consider the area around Louis Park in Stockton to be part of their gang territory. The Original Bloods and the West Side Bloods are subsets of the Bloods gang.

Hostility between members of the Bloods and members of the Norteño street gang erupted during a 2008 New Year's party with an exchange of words and gunfire. Some Bloods believed that John Tellez, Jr. (John Jr.), a Norteño, shot at Bloods at the party. There was another exchange of gunfire on January 25, 2008.

Two weeks later, on February 8, 2008, John Jr. was at Louis Park with family and friends, including his father's girlfriend Renee and her children Aaron, Alana and Marissa. John Jr. wore a red sweater, a red belt with "14" on the belt buckle signifying the letter "N" for Norteño, red and black shoes, and a red and black hat. Red is the color associated with the Norteños. Red is also the color associated with the Bloods.

Renee noticed four men walking towards John Jr. One of the men wore a black hoodie and had a red bandana over his nose and mouth. According to gang expert Detective Paul Gutierrez, gang members often "posse up" and cover their faces with bandanas or "mask up" when they commit a crime.

John Jr. recognized the man with the red bandana as "Beast, " someone he knew from the neighborhood as affiliated with the West Side Bloods. At trial, Prum admitted he was known as "Beast" and was the man in the red bandana.

Prum pulled his bandana down and spoke to John Jr. in a loud and aggressive voice. He called John Jr. "Little John" and asked "What's up?" and "Where's your friends?" Prum told John Jr. "I got you now, you're slipping"^[1] and said that John Jr. was lucky he was with his family otherwise Prum would "blast [John Jr.] right now." Prum called out "West Side Bloods" and his companions yelled West Side Bloods slogans. One of Prum's companions bobbed up and down, made gang hand gestures, and called out "West Side Bloods."

Prum pulled out a MAC-10 type firearm and pointed it at John Jr. Renee ran to get her children.

John Jr. told Prum there were kids around and they would "handle it" another time. According to John Jr. a gang rule dictated that gang members do not handle "business" when family, especially children, were around. Prum told John Jr. and his group to get out of the park. John Jr.'s father said they would leave immediately. Prum and his companions walked away.

John Jr. did not yell anything or challenge anyone as he left, and neither did anyone from his group. Although John Jr. had a loaded nine-millimeter semiautomatic handgun on his person, he did not pull out his gun during the confrontation with Prum.

John Jr.'s group ran to their cars and left the parking lot quickly. Renee's son Aaron sat in the front passenger seat of Renee's car, while her daughters Alana and Marissa sat in the backseat. Gunfire erupted as the line of cars drove off. John Jr. heard gunshots coming from an area in the park with picnic tables and saw muzzle flashes where he had seen Prum and his companions walking. The shooters aimed at the fleeing cars while running alongside or toward the cars. John Jr.'s father heard close to a dozen gunshots from what sounded like three guns and saw muzzle flashes from inside the park.

After he heard gunshots, John Jr. grabbed his gun and fired 12 or 14 shots at the people in the park. After he fired his gun, John Jr. heard more than 10 shots coming back toward him.

A bullet consistent with a nine-millimeter Luger cartridge pierced the driver-side door of Renee's car. The bullet perforated Aaron's left lung and caused him to bleed to death. A criminalist opined that the bullet that killed Aaron was most likely fired from a nine-millimeter semiautomatic pistol consistent with a MAC-type firearm. Prum did not dispute that his bullet killed Aaron. A bullet also wounded Renee in her left arm.

Ballistics evidence and witness testimony showed that five firearms were used during the February 8 shooting: two nine-millimeter guns, a .45-caliber semiautomatic firearm, and two .38-caliber revolvers.

John Jr. and his father identified Prum from a photographic lineup. John Jr. also told police "Beast" was the person who confronted him at the park. A search of two addresses associated with Prum yielded a red bandana and albums containing photographs of Prum and others displaying gang signs and wearing red clothing. Police did not find a MAC-10 firearm.

Renee told the police detectives that "Rattalack" may have been present at the Louis Park shooting. Detective Michael George determined that "Rattalack" was a name associated with Rattany Uy. Detectives interviewed Uy on March 20, 2008. The entire interview was video- and audio-recorded, and a redacted version of the recording was played to a jury at Uy's trial.

Uy told detectives the following: Uy and Prum drove by Louis Park and saw people they believed to be Norteños at the park. Uy and Prum then drove to Doray Court to recruit their "homies." They saw Michael Garduno and Deandre Cole. Prum told Garduno and Cole there were Norteños at the park and to get their guns. Garduno got a nine-millimeter gun. Cole had a revolver. Uy had a .22-caliber gun. Prum procured a nine-millimeter "submachine gun" and changed into a black hoodie. Prum, Uy, Cole and Garduno armed themselves because if the Norteños at the park "trip[ped]" the men would shoot the Norteños. As the men drove to the park they discussed shooting and separating when the shooting began. Prum and Cole said they were going to shoot the Norteños at the park because of the New Year's shooting. Prum walked up to the group in the park and drew his gun. He wore a red bandana around his neck. He was "talkin' up gang signs, " called out "West Side Bloods" and said that the Norteños shot at the Bloods on New Year's. Uy, Garduno and Cole stood behind Prum. The other people walked away and Prum started walking back. Cars then began to leave. Uy saw Renee and Aaron get into their car. Prum shot first, aiming at the cars that were leaving, then Garduno and Cole ran up and fired their guns multiple times. Uy ran while shooting. He shot up in the air and did not aim at the cars.

Uy was taken into custody following his March 20 interview. He subsequently admitted to Detective Gutierrez that he stood behind some picnic tables and used a .45-caliber gun during the Louis Park shooting.

Detective Gutierrez testified at Uy and Prum's trials as an expert on Asian criminal street gangs in Stockton. The detective opined that the Bloods and, in particular, West Side Bloods and Original Bloods were criminal street gangs. Bloods have identifiable hand signs and symbols, and Original Bloods and West Side Bloods members committed crimes together. If an individual satisfied two out of nine validation criteria within a five-year period, he or she was considered a documented gang member by the Stockton Police Department. The criteria included self-admission, associating with a documented gang member or documented gang members, participation in a gang-related crime, having "gang indicia, " and information from citizen informants that the person was a gang member. According to Detective Gutierrez, Prum was an active participant in the Original Bloods because he associated with other documented members of the gang, had admitted to being a member of the gang, had participated in gang-related crimes with other Original Bloods members, and police found photographs of Prum that contain indicia of gang membership. Prum's moniker was "Beast." He was also known as "Damu" which means blood.

Detective Gutierrez opined that Uy was also an active Original Bloods member. This opinion was based on self-admission and participation in gang-related activities. In addition, police had observed Uy associating with admitted or documented Original Bloods members. The People also presented photographs showing Uy throwing gang signs and wearing apparel with gang indicia.

According to Detective Gutierrez, Cole was a documented Original Bloods member. Detective Gutierrez opined that Garduno did not meet the criteria to be considered an active member of a criminal street gang, but Garduno was a Bloods "associate."

Detective Gutierrez further opined that the Louis Park shooting was gang-related activity. In his view, defendants worked together to commit the Louis Park crimes 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 activity by gang members. This opinion was based on the following: the Bloods blamed John Jr. for shooting at them on New Year's; the shooters called out "West Side Bloods" during the confrontation with John Jr.; the shooters and the Bloods gained notoriety in the community because of the shooting; the Louis Park shooting intimidated people in the community; ballistics evidence showed that the same weapon was used at Louis Park and at the prior January 25 shooting; and three documented Original Bloods members participated in the February 8 shooting.

Prum testified at his trial that he shot at John Jr. in self-defense. He provided the following narrative: On February 8, 2008, Prum saw John Jr. at Louis Park when Prum and Uy drove through the park. Prum and John Jr. had previously socialized together, but on that day there were problems between them. Prum believed John Jr. posed a danger to him and the neighborhood based on the New Year's and January 25 shootings. Prum and Uy planned to tell John Jr. to leave the park. Because he believed John Jr. might be armed, Prum asked Uy if Uy had a gun. Uy obtained a .45-caliber gun.

Prum told Uy that Prum also needed a gun and they needed "backup." Uy recruited Cole and Garduno. Prum told Cole and Garduno they were going to the park to "punk" John Jr. and kick him out of the park. Cole and Garduno each had a .38-caliber revolver. Prum called a friend for a gun and picked up a MAC-10 for himself 10 to 20 minutes later. Prum made sure the weapon was "fully loaded" in the clip. Defendants then returned to the park. Prum parked on Pixie Drive so that his car would not be detected. He carried the MAC-10 and wore a red bandana over his face to conceal his identity. He walked up to John Jr. and told John Jr. "this [was a] West Side Blood neighborhood" and John Jr. had to leave. John Jr. indicated he would leave. John Jr. did not pull out a gun. Prum saw people running to their cars. Prum and his cohorts then walked back in the direction of his car. When he reached an area where picnic tables were located, Prum heard gunshots from behind him. He ducked down. He saw Garduno and Cole firing towards Monte Diablo Avenue. He also saw muzzle flashes on top of a sportscar on Monte Diablo Avenue. Prum pointed his MAC-10 at the sportscar and fired four to six times. After firing his weapon, Prum ran to his car with Uy, Cole and Garduno following. Prum heard gunshots as he ran to his car. He saw Uy firing his weapon. Prum dropped off Uy, Cole and Garduno at Doray Court and went to a friend's house a few blocks from the park, where he hid for an hour or so. Thereafter, Prum left for Jackson Rancheria Casino because he "wanted to get away."

Lodged Document ("Lod. Doc.") 7 at 5-11.^[2] The facts as set forth by the state court of appeal are presumed correct, 28 U.S.C. §2254(e)(1), and are consistent with this court's review of the record.

         II. Procedural History

         Following a jury trial in the San Joaquin County Superior Court, petitioner was convicted of first degree murder (count 1).^[3] Lod. Doc. 7 at 11. The jury additionally found the charged gang enhancements to be true.^[4] Id. The jury also convicted petitioner on three counts of attempted premeditated murder (counts 2-4), ^[5] one count of shooting at an occupied motor vehicle (count 5), ^[6] carrying a loaded firearm by a gang participant (count 6), ^[7] carrying a concealed firearm by a gang participant (count 7), ^[8] possession of a firearm by a felon (count 8), ^[9] and active participation in a criminal street gang (count 9).^[10] Id.

         The trial court sentenced petitioner to state prison for life without the possibility of parole for the first degree murder conviction, plus three consecutive terms of fifteen years to life for the attempted murder convictions, and a consecutive five-year term for the shooting at an occupied vehicle conviction. Id. at 2. The trial court also imposed three twenty-five years to life terms for the firearm enhancements, a ten year term for a gang enhancement on count 4, and minimum fifteen-year terms for California Penal Code§ 186.22 enhancements on counts 1, 2, 3, and 5. Id.

         Petitioner appealed the judgment to the California Court of Appeal, Third Appellate District along with codefendant Uy. Lod. Docs. 1, 2, 3. On December 31, 2013, as to petitioner, the court of appeal reversed the judgment on counts 6 and 7 and further modified the judgment to strike the life sentences imposed pursuant to California Penal Code section 186.22(b)(1) on the convictions for counts 1, 2 and 3, and the 10-year prison term enhancement on the conviction for count 4. Lod. Doc. 4 at 51. It also modified the judgment to reflect that petitioner was sentenced on the count 5 conviction to a term of fifteen years to life in prison. Id. In all other respects the judgment with regard to petitioner was affirmed. Id.

         Petitioner and Uy filed petitions for review in the California Supreme Court. Lod. Doc. 5. The Court summarily denied petitioner's petition on April 30, 2014. Lod. Doc. 6. However, it granted review of Uy's petition, but deferred briefing. Id. The Court subsequently transferred the matter back to the court of appeal "with directions to vacate [the court of appeal's] decision and to reconsider the cause in light of [People v. Gutierrez, 58 Cal.4th 1354 (2014)]." Lod. Doc. 7 at 3. On November 14, 2014, the court of appeal issued a second opinion, which was exactly the same as its first opinion insofar as it pertained to ...