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Vasquez v. Sullivan

United States District Court, E.D. California

December 16, 2019

TONY VASQUEZ, Petitioner,
v.
WILLIAM SULLIVAN, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [THIRTY DAY OBJECTION DEADLINE]

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently in state prison serving a sentence of life without possibility of parole, plus 64 years to life, plus 27 years, for convictions for, inter alia, first degree murder and attempted murder. The habeas petition presents numerous claims challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On January 12, 2015, a Kern County jury found Petitioner guilty of one count of first degree murder (Cal. Penal Code §§ 187(a), 189), one count of attempted murder (Cal. Penal Code §§ 187(a), 664); two counts of shooting at an occupied motor vehicle (Cal. Penal Code 246); one count of illegal firearm possession (Cal. Penal Code 29800(a)(1)); and one count of making criminal threats (Cal. Penal Code § 476). (Doc. 19-4 at 157-161.[1]) The jury also found true the special circumstance allegation of discharging a firearm from a motor vehicle at a person outside said vehicle (Cal. Penal Code § 190.2(a)(21)), and the enhancement allegations that Petitioner personally inflicted great bodily injury (Cal. Penal Code §§ 12022.53(d), 12022.7(a)). (Doc. 19-4 at 157-161.) In a bifurcated proceeding, the trial court found Petitioner had suffered a prior conviction, a prior serious felony conviction, and three prior prison terms pursuant to California's Three Strikes law (Cal. Penal Code §§ 667(b)-(i), 667.5(b), 1170.12). (Doc. 19-4 at 157-161.) The court sentenced him to a prison term of life without the possibility of parole, plus 64 years to life, plus 27 years. (Doc. 19-4 at 157-161.)

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On February 6, 2008, the Fifth DCA affirmed judgment. People v. Vasquez, No. F071302, 2018 WL 716845 (Cal.Ct.App. 2018). Petitioner filed a petition for review in the California Supreme Court, and the petition was denied on May 16, 2018. Id.

         On June 5, 2019, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) Respondent filed an answer on September 6, 2019. (Doc. 18.) On October 9, 2019, Petitioner filed a traverse. (Doc. 20.)

         II. FACTUAL BACKGROUND

[2]
In the small hours of April 10, 2014, Armando Ortiz and Aaron Rocha were brought to the emergency department at Kern Medical Center in Bakersfield. Ortiz had sustained a gunshot wound to the right temple, was “in extremis, ” and “ultimately went into cardiac arrest.” The medical staff administered cardiopulmonary resuscitation, medication, and defibrillation, but to no avail. Ortiz was pronounced dead at 1:52 a.m. On the other hand, Rocha, who had sustained a gunshot wound to the right proximal superior lateral thigh, was discharged at 5:40 a.m. after receiving treatment.
During Ortiz's autopsy, the forensic pathologist extracted a projectile that was consistent with a bullet caliber in the nine-millimeter range.

         I. Prosecution's case-in-chief.

a. Aaron Rocha.
Sometime in March 2014, Rocha borrowed a black four-door 2011 Honda Accord with a red Dynasty Motors paper plate from his friend Studer [Fn.5] to visit his children. After returning from his trip, Rocha learned Studer “went to ... rehab” and “didn't want anybody to know where he was at.” Rocha attempted to locate Studer for almost two weeks without success. He decided to keep the Honda Accord until Studer resurfaced.
[Fn.5] Rocha did not know Studer's actual name.
At some point, Rocha loaned the Honda Accord to Shelly McKeen for a few hours, but she “never brought it back.” McKeen initially told Rocha law enforcement had thrown her in jail and confiscated the car because it was stolen. She subsequently admitted she had given the car to someone named “Tony Vasquez or Velasquez” to pay off a debt. McKeen brought Rocha to “Tony's” house on 6812 Zelda Way, where the Honda Accord was parked on the front lawn and a silver two-door Saturn was parked on the driveway. Several individuals stood outside the residence. They went into the garage when Rocha approached them. He assured the group he “didn't want no problems” and “just wanted the keys” to the Honda Accord. Rocha asked for “Tony” but was advised the latter “wasn't home.” He saw an outdoor surveillance camera aimed at the driveway and “knew they could see [him].” Rocha also noticed there were keys in the Saturn's ignition switch. In front of the camera, he announced, “I'm gonna take that car and when you bring me my car, tell him I'll give him his.” Rocha drove away in the Saturn. When he passed by “Tony's” house 15 minutes later, the Honda Accord was gone.
Rocha obtained “Tony's” cell phone number from McKeen. He contacted him and the two men agreed to meet in person and swap cars. “Tony, ” however, never appeared at the designated location. At some point, McKeen informed Rocha that “Tony” “had a monitor” and “had to be ... home at 10:00.”
On April 4, 2014, at or around noontime, Rocha was driving the Saturn when he saw the Honda Accord on Pacheco Road. He followed it to the intersection of Pacheco Road and South Union Avenue. When Rocha pulled up alongside the Honda Accord, the driver of the Honda Accord opened fire, damaging the Saturn's passenger side door and window, and took off. The gunman appeared to be an elderly Hispanic male with a “heavy mustache” and “big goatee.”
On April 10, 2014, sometime after midnight, Rocha drove the Saturn to a 7-Eleven convenience store on the corner of Pacheco Road and South H Street to purchase gas and beer. He was accompanied by his friend Ortiz, who possessed a revolver and placed it in the center console. Rocha parked the Saturn next to a pump and went into the store to pay for the gas. At some point, Rocha and Ortiz agreed to switch seats because Rocha “was gonna drink” and “didn't want to drive.” After refueling the Saturn, Rocha sat in the front passenger seat and began counting the change to determine whether there was enough money to buy beer. Suddenly, he heard a gunshot. Rocha glanced over his right shoulder and saw the gunman in the driver's seat of the Honda Accord. He dived into the backseat but was struck in the right thigh. Rocha shouted, “Let's go, let's go, ” but the Saturn remained stationary. He looked at Ortiz in the driver's seat and realized Ortiz had been shot in the head. Fearing the gunman was still nearby, Rocha grabbed the revolver and fled. However, he decided to return to 7-Eleven because he “didn't do anything wrong.” After confirming the gunman was no longer in the vicinity, Rocha tossed the revolver into the bushes because he “wasn't gonna carry the gun inside the store” and called 911. Shortly thereafter, he told officers who arrived on the scene the gunman was a Hispanic male with a beanie and goatee in a black car.
At Kern Medical Center, Rocha spoke with Officer Escobedo and then Detective Moore. Both times, he reiterated the 7-Eleven gunman was a Hispanic male with a beanie and goatee. During the interview with Moore, Rocha added the gunman was driving a black Honda Accord and appeared “younger than the guy that was on Union and Pacheco.” He denied having any acquaintance with the vehicle. Rocha also denied possessing a gun at the scene but subsequently admitted taking Ortiz's gun.
Six hours after being discharged from the hospital, Rocha spoke with Moore at the Bakersfield Police Department. There, Moore stated he knew the 7-Eleven shooting was related to Rocha's conflict with “a dude” over the Honda Accord. He revealed “the guy” wore an ankle monitor and Global Positioning System (GPS) data from the monitor placed “the guy” at 7-Eleven “exactly when [Rocha] was shot.” Moore then asked, “Do you know Tony's last name?” Rocha answered, “Velasquez or Vasquez.” Believing Rocha and defendant “had a relationship” and “knew each other, ” Moore showed Rocha a photograph of defendant and asked, “Is this the guy that shot you?” Rocha promptly replied, “Yeah, if you put a beanie on him.” Later in the interview, Rocha denied hiding heroin in the Honda Accord and owning a firearm. When Moore pointed out a witness saw him stash a gun in the bushes, Rocha answered, “Okay, yeah there was a gun but it wasn't mine.”
On April 11, 2014, Rocha entered the state witness protection program. In exchange, he agreed in writing to obey all laws and testify truthfully in court. On June 27, 2014, Rocha was detained by the United States Border Patrol due to an expired visa. In early July 2014, he was transferred to the county detention facility in Lerdo, ending his involvement in the program.
At trial, Rocha was unable to identify defendant as the 7-Eleven gunman, citing poor memory and trauma. Regarding the April 10, 2014, interview with Moore, he remarked, “I just felt a little pressure like to say because of the monitor evidence and the black car, I felt I was being pressured and by saying it is [defendant] when [Moore] pointed the finger at the picture.”
b. Witnesses and law enforcement at or near 7-Eleven at the time of the shooting.
On April 10, 2014, at or around 12:15 a.m., Rodrigo D. and his girlfriend were renting a movie from a Redbox kiosk in front of 7-Eleven when he heard four or five gunshots. Rodrigo then saw a black four-door sedan with tinted windows leaving the parking lot. The sedan “looked shiny” and “brand new.” Rodrigo and his girlfriend entered the store and called 911. Seconds later, “one of the individuals who had been shot” entered the store and “[got] on the phone.”
At 12:17 a.m., Bridget C. called 911 and told the dispatcher she heard three to four gunshots “coming just north of [her] apartment.” At trial, she specified her apartment was “[j]ust south” of 7-eleven.
Sometime before 12:20 a.m., Officer McCauley was on duty near the intersection of Pacheco Road and Monitor Street when he heard about five gunshots west of his location. He and his partner drove westbound on Pacheco Road in the direction of the gunfire. They were informed about a shooting at 7-Eleven en route. [Fn.6]
[Fn.6] At trial, McCauley testified he executed a search warrant at 6812 Zelda Way on September 4, 2013, and confirmed defendant inhabited the master bedroom. He added the outdoor surveillance camera connected to a monitor in that bedroom.
At or around 12:20 a.m., Officers Barajas and Billdt were dispatched to 7-Eleven. There, they spotted Rocha limping in front of the entrance and Ortiz sitting motionless in the driver's seat of the Saturn. Billdt, a licensed paramedic, extricated Ortiz from the vehicle. He observed profuse bleeding from Ortiz's nose and right ear indicative of a skull fracture. Billdt supplied medical aid until the ambulance arrived.
Meanwhile, Barajas found three Winchester nine-millimeter Luger shell casings next to the Saturn. With the help of an anonymous witness, he recovered an H & R model 922 .22-caliber nine-shot revolver in the bushes adjacent to the parking lot. The witness told Barajas “one of the occupants of the Saturn was the person that hid that gun.” Subsequent forensic analysis established the shell casings were expelled from a semiautomatic handgun, not the revolver.
c. GPS data from defendant's ankle monitor.
On November 5, 2013, defendant, a “gang-affiliated parolee[ ], ” was placed under the supervision of parole agent Miller and fitted with an ankle monitor. On April 1, 2014, at 4:52 p.m., as part of a mandatory weekly check-in, he reported to Miller at the parole office. After defendant exited the office past 5:00 p.m., Miller surveyed the parking lot and saw only a black four-door Honda Accord. As defendant approached the driver's side of the vehicle, Miller, whose view was partially obscured “by one of the support columns of the building up front, ” “moved around to get a different vantage point.” By the time Miller repositioned himself, defendant was nowhere in sight and the Honda Accord was leaving the lot. GPS data from defendant's monitor showed defendant traveling at 27 miles per hour at 5:09 p.m.
On April 9, 2014, GPS data from the monitor showed defendant leaving 2001 Custer Avenue, his reported address, and traveling at 15 miles per hour at 11:45 p.m. His speed increased to 31 miles per hour at 11:54 p.m. On April 10, 2014, at 12:02 a.m., defendant stopped at the southwest corner of South H Street and Brundage Lane, the site of an ampm convenience store. He stayed there until 12:09 a.m. At 12:12 a.m., defendant traveled southbound on South H Street at 38 miles per hour. At 12:16 a.m., he stopped at the southwest corner of Pacheco Road and South H Street, the site of the 7-Eleven.
Between 12:18 and 12:37 a.m., GPS data from the monitor showed defendant “zigzagging across ... streets” and “staying up in the yards” in the residential neighborhood northeast of 7-Eleven. At trial, Miller deduced defendant was on foot during this period “[b]ased on the location, the geography, [the] barriers and [defendant's] speed.” Defendant then crossed White Lane, stopped and waited at Ivan Avenue, and departed “at a speed ... suggest[ing] that he's ... back in a vehicle.” He returned to 2001 Custer Avenue at or around 1:37 a.m.
At 1:52 a.m., GPS data from the monitor placed defendant at the intersection of East Brundage Lane and Weedpatch Highway near a Denny's restaurant. He left the area at 2:29 a.m. and traveled westbound on East Brundage Lane. At 3:50 a.m., defendant was on South Oswell Street. At 3:55 a.m., defendant removed the monitor. Miller received a tamper alert and traced the device to La Posta Street.
d. Surveillance footage.
Surveillance footage recorded at ampm on April 10, 2014, showed (1) a black car pulling up next to a gas pump at 12:02 a.m.; (2) a female entering the store at 12:03 a.m.; (3) a male wearing black and white shoes next to the black car at 12:04 a.m.; and (4) the black car leaving at 12:09 a.m. At trial, Moore reviewed the footage and opined the black car “was consistent with [the] black Honda that had been in dispute between [Rocha and defendant].” He also identified the female as Melanie Dunn, describing her as “part employee, part girlfriend, part crime partner with [defendant].” Surveillance footage recorded at 7-Eleven on April 10, 2014, showed (1) Rocha entering the store at 12:11 a.m., paying for gas, and exiting at 12:12 a.m.; (2) three gunshots being fired outside the store at 12:16 a.m.; (3) Rodrigo and his girlfriend entering the store at 12:16 a.m. and calling 911; and (4) Rocha entering the store with his cell phone at 12:18 a.m., exiting temporarily, entering again at 12:19 a.m., and exiting again at 12:20 a.m.
Surveillance footage recorded at Denny's on April 10, 2014, showed (1) a male wearing black and white shoes and a female in the parking lot next to a sports utility vehicle (SUV) at 2:04 a.m.; (2) the male and female entering the restaurant at 2:05 a.m.; (3) the male and female leaving the restaurant at 2:23 a.m.; (4) the male and female next to the SUV at 2:24 a.m.; and (5) the SUV leaving the parking lot at 2:27 a.m. At trial, Moore reviewed the footage and identified the male as defendant and the female as Dunn. He pointed out “the shoes [defendant]'s wearing on the Denny's video that was after the shooting are consistent with the shoes worn by the [male] at the ampm on Brundage and H.”
e. Defendant's arrest and interview.
On April 10, 2014, at or around noontime, in the parking lot of America's Best Inn near the intersection of East Brundage Lane and Weedpatch Highway, officers spotted defendant sitting in the front passenger seat of a silver 1998 Toyota 4Runner. Defendant exited the vehicle and “immediately walked in a northbound direction” “at a fast pace” toward a gas station. He “kept looking back” “nervously over his shoulder.” Defendant approached a customer who was refueling a red Ford Explorer. The two entered the Ford Explorer, the customer in the driver's seat and defendant in the front passenger seat, and departed. Officers pulled over the vehicle, which, at that moment, “appeared to be ... occupied by the driver and driver only.” After the driver complied with commands to vacate the Ford Explorer, officers ordered “other passengers” “to get out.” Defendant emerged from the front passenger door and was detained. At the time of his arrest, he had a goatee. [Fn.7]
[Fn.7] Meanwhile, officers found Dunn, another man, and a glass methamphetamine pipe in one of the rooms at America's Best Value Inn.
At approximately 8:35 p.m., following a recitation of the Miranda [Fn.8] warning, Moore interviewed defendant at the Bakersfield Police Department. Defendant acknowledged he used to live at a residence on Zelda Way for a “long time, ” but his current living situation was “up in the air.” He denied having acquaintance with a black Honda Accord.
[Fn.8] Miranda v. Arizona (1966) 384 U.S. 436.
f. Subsequent searches.
At the time of his arrest, officers seized defendant's wallet, cell phone, and glass methamphetamine pipe. The wallet contained the state identification card of a man named Roop Sandhu. The cell phone contained Rocha's and McKeen's phone numbers.
Several videos were extracted from the cell phone. One video, which was about 13 minutes in length and marked and received into evidence as People's Exhibit No. 8- A, featured a conversation between a female and a male in which another male interjected intermittently. For the majority of the video, which was filmed by the female, due to the placement of the camera, the faces of the speakers could not be seen. Later, the female repositioned the camera, which showed (1) a male wearing a red hooded sweatshirt in a residential garage; and (2) a male wearing a white tank top in a bedroom. The footage established the conversation was primarily between the female and the male wearing the red hooded sweatshirt, the latter of whom sounded distraught. The male wearing the white tank top did not appear in the footage until after the female left the male wearing the red hooded sweatshirt in the garage. At trial, Moore watched People's Exhibit No. 8-A. He identified the male in the red hooded sweatshirt as Sandhu, the male in the white tank top as defendant, and the female voice as belonging to defendant's wife Melissa Vasquez. [Fn.9] Moore testified he could recognize Melissa's voice because he had spoken or listened to her numerous times.[3]
[Fn.9] The record refers to defendant's wife as either Melissa Vasquez or Melissa Cornelius. To avoid confusion, we simply refer to her as Melissa.
Another video, which was about 10 minutes in length and marked and received into evidence as People's Exhibit No. 9-A, featured a conversation between a male and female inside a moving vehicle at nighttime. During the conversation, the female sounded distressed. Due to the darkness as well as the placement of the camera, the faces of the speakers could not be seen. At trial, Moore watched People's Exhibit No. 9-A. He identified the male voice as belonging to defendant and the female voice as belonging to Dunn. Moore testified he could recognize their voices because he had spoken or listened to them numerous times.[4]
On April 10, 2014, at approximately 8:35 p.m., officers executed a search warrant at 2001 Custer Avenue. They found a red Dynasty Motors paper plate on a hallway countertop; photographs of defendant; a “Notice to Appear” bearing defendant's name; a utility bill addressed to defendant; and a “Probable Cause Determination” listing 6812 Zelda Way as defendant's “last known address.” (Boldface & some capitalization omitted.)
g. Gang expert.
Officer Beagley, the prosecution's gang expert, testified the Varrio Bakers are a criminal street gang in Bakersfield with “well over several hundred” members, most of whom are Hispanic. They claim as their “turf” the area of the city bordered by Truxtun Avenue to the north, Eye Street to the west, Brundage Lane to the south, and either Dr. Martin Luther King Boulevard or Washington Street to the east. Their primary activities include murder, assault with a deadly weapon, illegal firearm possession, robbery, carjacking, automobile theft, drug sales, and vandalism. Varrio Bakers members have been convicted of assault with a deadly weapon, assault with a firearm, illegal firearm possession, robbery, transportation of controlled substances, and gang participation.
To identify themselves, Varrio Bakers sport tattoos of the name of the gang and/or abbreviations thereof, e.g., “V” (for Varrio) and “VB, ” “VBKS, ” and “VE BE” (for Varrio Bakers). In addition, because Bakersfield is south of Delano, the “cutoff line” “separat[ing] Northern and Southern California, ” Varrio Bakers are affiliated with the Sureños and the Mexican Mafia. Hence, Varrio Bakers adopt symbols associated with the Sureños and the Mexican Mafia, including the color blue, the word “sur” (for Sureños), the letter “M” (for Mexican Mafia), and the number “13” signifying the 13th letter of the alphabet “M” (for Mexican Mafia).
According to Beagley, “[r]espect amongst Varrio Bakers” is “huge.” He detailed:
“The one who is putting in the most work, the one who is active is going to be more respected and be a higher rank. He's also going to be respected and feared by ... the rival gangs. [¶] ... [¶] ... It also goes to citizens. You know, why put VB on your face? Why put VB on the back of your head? They demand respect. They think you'll respect them if they have these scary tattoos on their head or their face. [¶] ... [¶] ... [Something] that comes to mind is a conversation ... with ... Dominick Pena[, a Varrio Baker].... I asked him what he would do, basically, if he was disrespected. He said depending on the level of disrespect, he may give them an ass-whipping or he may kill them, depending on how bad he was disrespected.”
Beagley watched People's Exhibit No. 8-A, the conversation between Melissa and Sandhu, and verified the filming took place in the garage of 6812 Zelda Way. He remarked:
“I found it significant that [defendant's] wife, girlfriend, whatever, she was the one doing the-basically the interview of ... Sandhu. He was terrified out of his mind and basically he was talking about how he messed up and he didn't do what he was supposed to do....
“Tony was having him do crimes for him, so he didn't have to do them himself. He was using somebody, basically a weak-minded individual to do some crimes for him. He was crying about it and was very scared of Tony. He was terrified. After the video was done, it shows Tony asking Melissa, hey, did you get that, did you get that?”
With regard to Sandhu's comments about “never bring[ing] ... pigs to [defendant's] house, ” Beagley noted the repercussions of “snitching” in the context of gang culture:
“[S]nitching is basically tattling, tattle-telling, telling on each other for crimes that have been committed. Snitching is frowned upon within gang culture.... [¶] ... [¶] ... [I]t could cost them their life. It could cause them to be beat up, which is why we go out of our way to make sure that doesn't happen when we work with informants. We don't want them to be found out.”
Beagley watched People's Exhibit No. 9-A, the conversation between defendant and Dunn. He remarked:
“I talked about how respect is a big part of gang culture and gang lifestyle. In the video [defendant] tells ... Dunn-I remember him saying straight-up disrespect, then he talked about basically, you know, if I let you get away with this, then the next one is going to try to get away with it.
“I found that very significant. It goes along the lines of respect of him and demanding respect. And videotaping the deal of this, of ... Dunn basically terrified out of her mind, he's recording this incident basically to show that he's a bad dude. He's a scary guy. He makes people cry.
“He can show other people this video of how bad of a guy he is.”
Based on police reports, photographs, and discussions with other officers, Beagley opined defendant was a Varrio Baker at the time of the 7-Eleven shooting. When he was arrested, defendant was wearing blue attire. His body was covered with numerous gang-related tattoos, including the initials “VB” on his head and lower thigh; the word “SUR” on his chest; the word “Baker” across his stomach; and the Roman numeral “X” on his right arm and the number “3” on his left arm, forming the number “13.” Defendant was charged with murder, inter alia, one of the gang's primary activities. In a 1995 interview with a detective, defendant admitted committing grand theft auto more than 10 times with two other Varrio Bakers members. In 2001, officers obtained photographs of defendant “throwing up the V [sign]” for “Varrio Bakers” with either his hand or elbows. During a 2001 traffic stop of defendant's vehicle, officers found two loaded firearms, a significant amount of methamphetamine, and a photograph of defendant with another Varrio Bakers member. In 2007, officers searched defendant's residence at 1115 Sandra Drive and found two loaded firearms, an ounce of methamphetamine, and a belt buckle bearing the letter “V” for “Varrio, ” leading to his arrest for selling drugs and illegally possessing firearms. During a 2012 traffic stop of defendant's vehicle, officers found $1, 200 and 12 grams of “bunk dope, ” leading to his arrest for selling drugs. Defendant then admitted being an active Varrio Baker and associating with other Varrio Bakers. In 2013, officers searched defendant's residence at 6812 Zelda Way and found a loaded firearm and a large letter “V” spray-painted on the garage floor. Defendant claimed he “wasn't active because he was damn near 40” but acknowledged he had not “dropped out” of the gang.
The prosecutor asked hypothetically whether a Varrio Baker would feel disrespected “if someone were to go up to ... [his] house and demand[ ] a car that is located at the house, then being unable to get it, steal[ ] a car that's on the property of the house and ... specifically intend[ ] to make a scene for video[ ]cameras that are associated with the house....” Beagley responded:
“Absolutely. [¶] ... [¶] ... I think it's one thing to disrespect a Varrio Baker out in the street or out in the hood but it's another thing to come to his house, where his wife can live in, his kids can live in, his mom, and disrespect him severely. I mean, taking a car from his house; that's where he lives. That's where his family is at. That's total disrespect. [¶] ... [¶]
“... [H]e's going to retaliate. He's going to retaliate severely. He may severely beat up the subject who did it. He may stab him. He may shoot him, kill him.”

         The prosecutor then asked how the Varrio Bakers benefit when the “Varrio Baker

gang member who has someone come to his house and ... steal[ ] a car from the house” “[comes] into contact with the stolen vehicle” and “fire[s] shots at the vehicle and its occupants upon seeing it.” Beagley responded:
“Some of the benefits would be, basically, we're talking about respect. By coming to a Varrio Bakers' house where his wife could live, his kids could live, and taking that car, even though there are cameras present, making a scene, would be very disrespectful to that Varrio Bakers gang member.
“By him retaliating upon seizing his vehicle, and retaliating, basically he was disrespected. He's trying to gain that respect back. He's basically getting respect. On the benefit of the Varrio Bakers, basically it's showing that when somebody disrespects one of its members, they take care of business. They go as far, even, to shoot and kill someone who even took some property from their house.
“It shows that the gang itself is a violent gang. It sends a message to the rival gangs. It sends a message to the citizens of Bakersfield that Varrio Bakers aren't to be messed with. I think it also raises the status of that Varrio Baker within his gang that he's a shooter. He's a killer. He would be somebody that would have some influence on the gang. [¶] ... [¶]
“... I think the fact that the passenger also was shot and killed in the vehicle, basically that goes to show that if you disrespect a Varrio Baker, not only is your life in danger, it could be somebody you're with. It could be your mom, a child. No. one is safe around you once you commit that level of disrespect against a member of the Varrio Bakers. [¶] ... [¶]
“... [I]t strikes fear into the community. I've talked about some different times where citizens were victimized by Varrio Bakers. It may prevent citizens who are victimized in the future-they may not cooperate. They'll give them their property. They won't fight back.
“If they witness a crime, they may not want to testify because they know what the Varrio Bakers gang members are capable of.”

         II. Defense's case-in-chief.

a. Jazmine Barron.
Barron lived with Rocha in November 2013. He used and sold drugs and “always” carried a gun “because he had a lot of problems.” Rocha also possessed a “bad temper” and threatened others with the gun “when it wasn't his way.” At trial, Barron viewed a photograph of the revolver retrieved from bushes adjacent to 7-Eleven's parking lot on the night of the shooting and testified it belonged to Rocha.
In early 2014, Rocha told Barron he “was coming back from Baja, California” or “Calexico” with a black Honda containing heroin. Later, he mentioned he gave the car to McKeen “to get what he wanted from her, ” but she “sold the car” without telling him.
Barron first met defendant “when [she] was running around in the streets homeless” and considered him “a friend.” She has “never seen him get violent.” Barron also knew Dunn, describing her as someone who “was always there” and “would do anything and everything she can just to be with [defendant].”
b. Heather Stewart.
Stewart dated Rocha's roommate and lived with the men in September and October 2013. At the outset, she thought Rocha was “an okay guy.” However, Stewart later discovered he was abusive towards women. One time, Rocha showed her his gun, which he named “bitch” and “always” “carried ... with him.” It was “dark in color, ” “very heavy, ” and “had a long barrel.” At trial, Stewart viewed a photograph of the revolver retrieved from bushes adjacent to 7-Eleven's parking lot on the night of the shooting and testified Rocha's gun “looked like that.” Stewart knew defendant and considered him a friend. She was at his house when “a girl had brought [him]” a black Honda. Subsequently, Stewart learned from Rocha the Honda belonged to him and he stole defendant's Saturn in turn. He also revealed the vehicle contained two pounds of heroin and he “was late on a deal where he was supposed to drop that car off, ” putting his life at risk. Stewart told Rocha she knew defendant and was willing to facilitate a trade. She phoned defendant and arranged a swap. When Stewart went to defendant's house, however, defendant and his family had already moved out.

Vasquez, 2018 WL 716845, at *2-16 .

         III. DISCUSSION

         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Petition

         Petitioner raises ten claims in his petition: 1) The pretrial identification of Petitioner was unduly suggestive and unnecessary in violation of his due process rights; 2) The trial court failed to instruct on self-defense and imperfect self-defense in violation of Petitioner's due process rights; 3) Defense counsel was ineffective in failing to request instruction on perfect and imperfect self-defense; 4) Petitioner was denied due process by the admission of prejudicial gang evidence and by the instruction that permitted the jury to consider gang evidence on the issue of motive; 5) Petitioner was denied due process by the admission of prejudicial video evidence that served no other purpose than to show his evil character to establish a probability of his guilt; 6) The prosecutor committed misconduct by arguing facts not in evidence; 7) The trial court erred by excluding admissible hearsay of a witness thereby denying Petitioner his right to present a complete defense; 8) Petitioner was wrongly given an elevated sentence for attempted murder without a proper jury finding that the crime was willful, deliberate and premeditated as required by Apprendi; 9) The conviction for criminal threats was unsupported by substantial evidence showing a true threat within the meaning of Cal. Penal Code § 422; and 10) The cumulative impact of the series of trial errors denied Petitioner his right to a fair trial.

         1. Pretrial Identification

         Petitioner first claims the trial court erred in admitting a pretrial identification because the identification procedure was unduly suggestive and unnecessary. Petitioner raised this claim on direct review. In the last reasoned decision, the Fifth DCA denied the claim as follows:

a. Background.
At the June 2014 preliminary hearing, Rocha testified he was “70 percent” certain that defendant was the 7-Eleven gunman.
Defendant moved in limine to “[e]xclude testimony or evidence of a photo lineup as unduly suggestive.” (Boldface omitted.) The prosecutor opposed the motion. Thereafter, the court conducted a hearing pursuant to Evidence Code section 402.
Defense investigator Mattson testified she interviewed Rocha in county jail on September 4, 2014. When asked whether he “was able to get a look at the person who fired the shots” at 7-Eleven, Rocha said he “didn't see” the gunman and “just saw that he had a beanie.” Concerning the interview at the Bakersfield Police Department, during which he was shown defendant's photograph, Rocha recounted “the officer kept pointing at the picture” and “told him that they had [defendant] on an ankle monitor in that area.” Rocha told Mattson “something about feeling pressured ... to say it was [defendant].” He further disclosed he “spoke to someone from the D.A.'s office about the case.” Rocha was “promised ... the moon and stars” “if he identified [defendant] as the shooter” but “threatened ... with jail if he [did] not say it was [defendant].” Finally, he told Mattson he “made an assumption based on the dark-colored car, ” “made an assumption that it was [defendant] because he had bad history with him, ” “didn't know for sure that that was the car, ” and “did not see who the shooter was.”
Rocha testified he did not “remember much” about the 7-Eleven shooting. He recalled being in the passenger seat when he heard a gunshot. Rocha “barely looked, ” saw a black car, and “threw [himself] in between the seats.” He emphasized, “[A]ll I saw was a guy with a beanie and goatee, the black car.” During an interview with a detective at the Bakersfield Police Department, Rocha was shown “a lot of pictures.” The detective “mentioned something about [a] monitor that went off at [the] time of the crime, ” “pointed [at a] picture” of defendant, and “asked ... if [defendant] was the person.” Rocha, who had “never seen [defendant] before, ” “[felt] pressure when [the detective] point[ed] the finger and ask[ed] ... ‘Is this the person?' ” and answered, “[M]aybe.”
On cross-examination, Rocha testified his memory of the 7-Eleven shooting was not “better ... the day that it happened than it [was] ... eight months later.” He “[didn't] think” he phoned 911 immediately after the shooting but acknowledged doing so after he heard a recording of his 911 call, in which he described the gunman's vehicle as a black Honda Accord. Rocha then heard recordings of his subsequent interviews with officers and acknowledged telling them the gunman was a Hispanic male with a beanie and goatee and he “saw [the gunman's] face.” He also acknowledged saying, “If I see him, I'll know him.” With regard to his interaction with the district attorney's office, Rocha conceded he was never “specifically told that [he] had to identify [defendant]” and was “repeatedly told that the only thing ... expect[ed] from [him] [was] the truth.”
Moore testified he first interviewed Rocha at Kern Medical Center. There, Rocha verified the 7-Eleven gunman drove a black Honda and stated he “saw the driver very well.” He also expressed “wanting to get his daughter out of town before he started saying names.” Afterward, Moore “received information from multiple sources” about an “ongoing feud” between Rocha and defendant “regarding the black Honda, ” contacted Miller, and confirmed the GPS data from defendant's ankle monitor placing defendant at 7-Eleven at the time of the shooting. During the interview with Rocha at the Bakersfield Police Department, without mentioning defendant's name, Moore told Rocha “that the guy that he was in a dispute with over the car, his GPS had put him at the 7-Eleven gas station at the time of the shooting.” Moore divulged this information because he “wanted [Rocha] to feel comfortable that we were going to protect him the best we could.” Later, Moore showed Rocha a photograph of defendant and asked, “Is this the guy that shot you?” Rocha responded in the affirmative. As to why he showed Rocha defendant's photograph, Moore explained:
“I had multiple reasons. One of the main ones is it was apparent to me that the two men had a relationship, and that ... Rocha knew [defendant]. [¶] And I was confirming that the Tony Vasquez that I believed it was was the same Tony Vasquez that he was talking about.
“The other reason is we were actively looking for [defendant], and I also wanted to make sure that this was the right person that we were talking about and not some other relative or unknown Tony Vasquez.” The court admitted Rocha's pretrial identification testimony:
“In regard to showing [Rocha] the one photograph which Detective Moore showed, in regard to that, I do believe that that was unduly suggestive and unnecessary. [¶] ... [¶]
“Given the totality of the circumstances of the numerous statements made by [Rocha] before and also during the time that the photograph was shown, there is a level of certainty that would allow this information to be provided to the jury by way of testimony.”
b. Analysis.
“A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard.” (People v. Clark (2016) 63 Cal.4th 522, 556-557.)
“In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) “Moreover, there must be a ‘substantial likelihood of irreparable misidentification' under the ‘“‘totality of the circumstances'”' to warrant reversal of a conviction on this ground.” (Id. at p. 990.)
Assuming, arguendo, Rocha's pretrial identification testimony was obtained through an impermissibly suggestive procedure, in view of the totality of the circumstances, we find no substantial likelihood of irreparable misidentification. The record shows Rocha loaned his friend's black four-door 2011 Honda Accord with a red Dynasty Motors paper plate to McKeen, who, in turn, sold the car to someone named “Tony Vasquez or Velasquez.” She brought Rocha to 6812 Zelda Way, one of defendant's known addresses, where the Honda Accord was parked on the front lawn. Individuals standing outside the residence told Rocha that “Tony” “wasn't home.” After Rocha took the Saturn from 6812 Zelda Way, he obtained “Tony's” cell phone number from McKeen and contacted him to set up an exchange. Following defendant's arrest, officers seized defendant's cell phone, which contained Rocha's and McKeen's phone numbers. Officers later searched 2001 Custer Avenue, another of defendant's known addresses, and found a detached red Dynasty Motors paper plate, inter alia. Miller's testimony further verified defendant possessed a black Honda Accord more than a week before the 7-Eleven shooting.
On the morning of the 7-Eleven shooting, although Rocha glanced momentarily at the gunman, he nonetheless was able to discern the gunman was a Hispanic male with a beanie and goatee in the driver's seat of the Honda Accord. Rodrigo, a percipient witness, saw a black four-door sedan. Within minutes of the shooting, Rocha (1) phoned 911 and identified the gunman's vehicle as a black Honda Accord; and (2) told officers who arrived on the scene the gunman was a Hispanic male with a beanie and goatee in a black car. In subsequent interviews with officers at Kern Medical Center, he reiterated the gunman was a Hispanic male with a beanie and goatee, adding he “saw [the gunman's] face” and could identify him “[i]f [he] s[aw] him” again. (Cf. People v. Kennedy (2005) 36 Cal.4th 595, 611 [length of time between crime and identification “only three weeks”], disapproved in part by People v. Williams (2010) 49 Cal.4th 405, 459.)
Over 11 hours after the shooting and six hours after being discharged from the hospital, Rocha spoke with Moore at the Bakersfield Police Department. Before Moore displayed defendant's photograph, he told Rocha “the guy who[m] [Rocha] had conflict with” over the Honda Accord wore an ankle monitor and the GPS data from that monitor placed “the guy” at 7-Eleven at the time of the shooting. According to Rocha, he already knew “the guy, ” i.e., Tony Vasquez or Velasquez, “had a monitor.” When he was shown defendant's photograph and asked whether defendant was the gunman, Rocha promptly answered, “Yeah, if you put a beanie on him.” At the preliminary hearing, Rocha testified he was “70 percent” certain that defendant was the gunman.
GPS data from defendant's ankle monitor confirmed (1) defendant was at 7-Eleven at the exact time the shooting occurred; and (2) defendant fled from 7-Eleven on foot immediately after the shooting occurred. GPS data also placed defendant at ampm a few minutes before the shooting and at a Denny's restaurant more than two hours after the shooting; concurrent surveillance footage recorded at these establishments corroborated the data. In particular, ampm's footage captured defendant alongside a black car. (See People v. McGriff (1984) 158 Cal.App.3d 1151, 1157 [“Although evidence against appellant was largely circumstantial, the circumstantial evidence was overwhelming.”].)

Vasquez, 2018 WL 716845, at *19-21.

         a. Legal Standard

         Due process prohibits the admission of eyewitness identifications obtained after police have arranged identification procedures so impermissibly suggestive as to give rise to a “‘very substantial likelihood of irreparable misidentification.'” Perry v. New Hampshire, 565 U.S. 228, 232 (2012) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). Courts employ a two-part analysis to evaluate whether an identification has been irreparably tainted by an impermissibly suggestive pretrial identification procedure. See United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984). The first step is to determine whether the pretrial identification was unduly suggestive. Simmons, 390 U.S. at 384. This may occur when a photographic identification procedure “emphasize[s] the focus upon a single individual, ” thereby increasing the likelihood of misidentification. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985). Whether an identification procedure was unduly suggestive is a fact-specific determination, which may involve consideration of the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves. Id.

         If the identification procedure was unduly suggestive, the second step requires a determination of whether the totality of the circumstances surrounding the eyewitness's identification indicates that the identification was nonetheless reliable. Neil v. Biggers, 409 U.S. 188, 199 (1972); Simmons, 390 U.S. at 383. Factors considered in assessing reliability include: (1) the opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the prior description; (4) the witness's level of certainty at the confrontation; and (5) the length of time between the crime and the identification. Neil, 409 U.S. at 199-200; Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The corrupting effect of the suggestive identification itself is to be weighed against these factors. Id. Where “the indicia of reliability are strong enough to outweigh the corrupting effect of the police arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012).

         Further, any possible prejudice that the defendant may have suffered from suggestive identification procedures may be mitigated by cross-examination and other courtroom safeguards. See Simmons, 390 U.S. at 384 (danger that photo lineup technique may result in conviction based on misidentification may be lessened by cross-examination at trial).

         b. Analysis

         In this case, the state court assumed that the identification procedure was impermissibly suggestive; however, the court determined that there was no substantial likelihood of misidentification. The state court determination was not objectively unreasonable.

         Considering the totality of the circumstances, there is no reasonable likelihood of irreparable misidentification. As noted by the appellate court, Rocha stated he had seen the gunman's face and could identify him “if he saw him” again. Vasquez, 2018 WL 716845, *21. He advised officers who arrived on the scene that the gunman was a Hispanic male with a beanie and a goatee, and he was in a black Honda Accord. Id. When Rocha was shown a photograph of Petitioner, he immediately identified him as the gunman. Id. Rocha's identification was corroborated with substantial evidence. Id. GPS data from Petitioner's ankle monitor confirmed he was at the AM/PM minimart at the exact time of the shooting. Id. It further showed Petitioner fled immediately after the shooting. Id. In addition, video surveillance footage captured Petitioner at the AM/PM standing alongside a black car. Id.

         Based on the foregoing, Petitioner has failed to demonstrate that the state court rejection of his claim was contrary to clearly established Supreme Court precedent, or that the state court's decision was an unreasonable application of the factors noted above. Therefore, the claim should be denied.

         2. Instructional Error

         Petitioner states there was evidence to support a theory that victim Rocha had a gun and may have fired one or two shots first. He claims the trial court committed prejudicial error by failing to instruct on self-defense and imperfect self-defense. Petitioner presented this claim on direct appeal. The Fifth DCA denied the claim in the last reasoned decision as follows:

         a. Background.

         At the jury instruction conference, the following exchange transpired:

“THE COURT: And just so we're clear, I did not hear any substantial evidence that would necessitate giving a[n] ... instruction on voluntary manslaughter or any on self-defense or any related instructions. [¶] Any record either counsel would like to make in that regard?
“[DEFENSE COUNSEL]: Neither of those instructions are being requested by the defense.
“[PROSECUTOR]: Submit, your Honor.
“THE COURT: Okay. ...”

         In his summation, defense counsel theorized Rocha provoked the shooting at 7- Eleven:

“[W]hat if [Rocha] actually had that gun that we talked about that we knew that he did have and of course he denies ever brandishing. What if that gun was-when [Rocha] saw that Honda come up, recognized the Honda. Knows I gotta get that car back because I want that heroin, otherwise, I'm gonna get killed for not delivering the heroin that I smuggled up here from Mexico. And so he pulls his gun because I'm going to get that car back.
“... We know [Rocha] had a gun. We know he was furious about not having that Honda, whether it was really for heroin reasons or not. We know that he previously went to [defendant]'s house and threatened him through the security cameras. So this wouldn't necessarily be out of character for [Rocha] to start threatening again. [¶] ... [¶]
“Evidence that [Rocha] brandished his gun. Was there anything that supports that theory? Absolutely. What was the first thing [Rocha] did after the shots were fired? Before he called 911. Before he checked on his friend who was sitting next to him, shot in the head, what was the first thing he did? He took his gun and he went and hid his gun in the bushes.
“Why? Why do you need to hide your gun if you haven't done something with it that you weren't supposed to do? What reason is there? There's no reason. The only reason you go and you hide your gun before you call 911, before you check on your friend who has just been shot in the head is because you don't want to get in trouble because you've done something with that gun that you weren't supposed to do, like point it at someone who then fired back at you.
“And then he lies about the gun and continues to lie about the gun to the police. Why? Because he doesn't want them to know he had a gun because he did something he was not supposed to do with that gun and he doesn't want to get in trouble. That's why he hid the gun. That's why he lied about the gun. That's why he continues to lie about the gun. Again, why would he need to lie about the gun if he hadn't done anything wrong with that gun?
“And there are times in the interview and you can go back and listen to them and watch them all.... [Rocha] repeatedly tells Detective Moore that he feels guilty and he feels like he got his friend killed. He feels like his friend's family is going to bring this back on him like he's the reason that [Ortiz] is dead.
“Maybe he's being honest there. Maybe he is the reason [Ortiz is] dead. Maybe if [Rocha] hadn't pulled his gun and acted like a lunatic, trying to get that heroin in that car back, no shots would have been fired that night. [Ortiz] would still be here. We wouldn't be here. [Rocha] feels guilty because he did pull that gun and that set everything in motion.”
b. Analysis-instruction on self-defense.
“‘“It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence”' and ‘“necessary for the jury's understanding of the case.”' [Citations.] It is also well settled that this duty to instruct extends to defenses ‘if it appears ... the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense ...

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