United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner proceeding pro se, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The matter was referred to the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and
Local Rule 302(c).
challenges a 2015 conviction entered against him in the
Shasta County Superior Court. ECF No. 1. Respondent has filed
an answer, and petitioner a traverse. ECF Nos. 12, 18. After
independent review of the record, and application of the
applicable law, this court recommends denial of
petitioner's application for habeas relief.
April 17, 2015, petitioner was convicted by jury of four
counts of assault with a deadly weapon (Cal. Pen. Code §
245(a)(2)), one count of carrying a loaded firearm by a gang
member (Cal. Pen. Code § 12031(a)(2)(c), and one count
of discharging a firearm in a school zone (Cal. Pen. Code
§ 626.9(d)). ECF No. 13-3 at 94. The jury also found
true certain firearm and gang enhancements. Id.
Petitioner was sentenced to a state prison term of 23 years
and four months. Id. On June 6, 2016, petitioner
proceeding through counsel, filed an appeal in the California
Court of Appeal, Third Appellate District. ECF No. 14-1. The
Court of Appeal affirmed the judgment on June 12, 2017. ECF
No. 14-5. On July 19, 2017, petitioner proceeding through
counsel, appealed to the California Supreme Court. ECF No.
14-6. On September 20, 2017, the California Supreme Court
denied the petition. ECF No. 14-7. On September 25, 2017, the
California Supreme Court issued a remittitur. Id.
December 15, 2017, petitioner proceeding through counsel,
filed a “motion to recall the remittitur, reinstate the
appeal and permit supplemental briefing on the trial
court's newfound discretion pursuant to Senate Bill
620” with the California Court of Appeal, Third
Appellate District (“Court of Appeal”). ECF No.
14-8. On December 19, 2017, the California Court of Appeal
granted petitioner's motion to recall the remittitur and
vacated its June 12, 2017 decision and reinstated
petitioner's appeal. ECF No. 14-9. After the submission
of supplemental briefing on Senate Bill 620, the California
Court of Appeal issued an opinion and affirmed the judgment.
ECF No. 15-3. On August 10, 2018, petitioner proceeding
through counsel, filed an appeal with the California Supreme
Court. ECF No. 15-4. On October 17, 2018, the California
Supreme Court denied the petition for review without an
opinion. ECF No. 15-5.
instant federal petition was filed on December 16, 2018. ECF
does not dispute the facts as set forth in the California
Court of Appeal's opinion. In its unpublished
memorandum and opinion affirming petitioner's judgment of
conviction on appeal, the California Court of Appeal for the
Third Appellate District provided the following factual
On October 12, 2012, D. Ryles stormed out of a party on foot
after having too much to drink. Some of his friends,
including Talon, Bradley and Cristina, followed Ryles to make
sure he was alright. Ryles was yelling and making a scene,
and nearby residents asked the group to quiet down. Defendant
was at one of these residences with Emilio and Eddie.
Defendant told Emilio and Eddie he was going to record what
was going on with Ryles and his friends. He told the police
later, “I remember Eddie saying don't get beat up.
And I was just like dude, I know how to fight.”
Defendant walked across the street and started recording a
video on his phone. Cristina noticed this and asked defendant
to stop. Then, Talon asked defendant why he was recording and
told him to put the phone down.
Defendant put his phone away, but pulled out a gun and put it
to Talon's head. Talon explained that, “being
intoxicated, I was just, like, ‘What? Are you going to
shoot me?' You know, not thinking it was going to happen
at all.” Defendant hit Talon on the back with the gun.
Next, defendant hit Talon on the head and hands as he tried
to cover himself. When defendant did so, the gun went off.
Talon and Cristina jumped over a fence and hid. Defendant
turned and shot Ryles in the ankle. Ryles fell to the ground.
Bradley fell to his knees holding Ryles. Defendant pointed
the gun at the two men and said, “Say something
else.” Bradley protested that they had not said
anything. Defendant kicked Ryles in the face and repeated,
“Say something else.” A witness reported that
defendant said, “That's what you get, you little
bitch.” Other witnesses said defendant left the scene
In an interview at the Redding Police Department, defendant
explained that his gun accidentally fired three times, and
that he gave the gun away to a Sureño gang member the
On October 16, 2012, police officers conducted a search of
defendant's bedroom. Defendant is originally from the San
Fernando Valley and had been staying with Emilio for about a
week and a half. As relevant to this appeal, officers found a
copy of an article about the shooting in defendant's
On November 1, 2012, officers searched the entire apartment.
They found a book written by a former member of the Mexican
Mafia. Blue bandanas were found in both bedrooms, including
one wrapped around five .38-caliber shells in Emilio's
room. Most of the clothing in the apartment was either blue
or black. The officer who testified about this search did not
recall seeing any red clothing.
The parties stipulated “[t]hat the Sureño street
gang and its subsets are in fact a criminal street
gang” as defined in section 186.22, subdivision (f).
Department of Corrections and Rehabilitation Special Agent
Paul Sprague testified as an expert on the Sureño
gang. He explained its relationship to the Mexican Mafia and
that Sureños generally wear blue while their
enemies-the Norteños-generally wear red.
Sureños often wear blue bandanas in particular.
Redding Police Officer Levi Solada testified that gang
members normally get tattoos depicting areas they are from
and describing what gangs they are associated with. Defendant
had “SUR, ” “YB, ” “YBR”
and three dots tattooed on his left hand. Officer Solada and
Special Agent Sprague testified “SUR” was a
reference to the Sureños and “YB” and
“YBR” referred to the Young Boys RIFA, a subset
of the Sureños from Los Angeles that defendant
belonged to. Defendant also had “NK” tattooed on
his left hand for “Norteño Killer.” On his
face, defendant had tattoos of the letter “Y” and
three small dots. Special Agent Sprague explained the three
dots symbolize the term “mi vida loca” and
embracing the gang lifestyle. Defendant also had numerous
other tattoos on his body that conveyed membership in the
The parties stipulated that specific graffiti appeared near
the location of the shooting between October 2, 2012, and
October 3, 2012. The graffiti contained various symbols
associated with the Sureños. Special Agent Sprague
testified Sureños use graffiti to mark their
territory. He also said the “YB” depicted in the
photograph of the graffiti was in similar script to the
“YB” on defendant's body.
Special Agent Sprague opined that defendant was an active
Sureño gang member. Defendant was living with Emilio,
who had previously admitted to a gang enhancement under
section 186.22, subdivision (b)(1).
Special Agent Sprague testified that Sureños use
violence to demonstrate and promote the gang's strength.
Violence also enhances an individual's reputation:
“An individual who is quick to violence and does it
with courage and demonstrates their loyalty is honored within
the gang. The slang term is ‘street cred' or
‘street credibility[.'] It instills a sense of fear
in victims and witnesses and in people who hear about the
reputation of the gang. In other words, the thing to fear is
the violence of the gang. That's the thing they point to
and say, ‘Look what this gang is capable of.'
The prosecution asked Special Agent Sprague hypothetical
questions mirroring the facts of these crimes, and he opined
that the crimes were committed for the benefit of, the
direction of or in association with a criminal street gang.
He explained that, based on the disrespect perceived, the
crime benefited the gang by protecting its reputation and
territory. Witnesses would remember the violent act and the
gang's reputation would grow after the witnesses learned
the identity of the attacker. The gang's reputation is
important because it creates fear in the general public and
allows the gang to commit its primary criminal activities
with greater impunity. Violent crimes in particular further
the activities of the Sureño gang because of their
severity. They serve as a warning to enemies and members of
the community, and instill fear in those who hear what the
gang has done. Additionally, possessing an article about the
crimes allows a person to demonstrate to other gang members
that he performed the activity.
ECF No. 15-3 at 2-5.
and Effective Death Penalty Act of 1996 Legal Standards
statutory limitations of the power of federal courts to issue
habeas corpus relief for persons in state custody is provided
by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
The text of § 2254 provides:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court ...