United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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.
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
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
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" 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
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
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
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
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
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. 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
a jury trial in the San Joaquin County Superior Court,
petitioner was convicted of first degree murder (count
Lod. Doc. 7 at 11. The jury additionally found the charged
gang enhancements to be true. Id. The jury also
convicted petitioner on three counts of attempted
premeditated murder (counts 2-4),  one count of shooting at an
occupied motor vehicle (count 5),  carrying a loaded firearm by
a gang participant (count 6),  carrying a concealed firearm by a
gang participant (count 7),  possession of a firearm by a
felon (count 8),  and active participation in a criminal
street gang (count 9). Id.
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.
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.
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