Opinion
CV 22-5422-SB(E)
04-05-2023
TYRONE FOSTER, Petitioner, v. RAYBON JOHNSON, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Stanley Blumenfeld, Jr., United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner, represented by counsel, filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” on August 3, 2022. Respondent filed an Answer on December 9, 2022. Petitioner filed a Reply on February 8, 2023.
BACKGROUND
A Superior Court jury found Petitioner guilty of the first degree premeditated murder of Robert Ellis, Jr. (“Ellis”) (Count 1). The jury also found Petitioner guilty of five counts of the wilful, deliberate and premeditated attempted murder of five other persons “standing in front of 5507 South Vermont” (Counts 2-6). As to all six counts, the jury found true the allegations that the offenses were gang related and that Petitioner personally discharged a firearm. Petitioner received a prison sentence of 90 years to life (Reporter's Transcript [“R.T.”] 5410-20, 6329-33; Clerk's Transcript [“C.T.”] 414-25, 428-33, 448-54).
The California Court of Appeal affirmed (Respondent's Lodgment 11; see People v. Foster, 61 Cal.App. 5th 430, 275 Cal.Rptr.3d 649 (2021)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgments 12-13).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Foster, 61 Cal.App. 5th 430, 433-39, 275 Cal.Rptr.3d 649 (2021). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
A. Prosecution Evidence
1. The Shooting
On the afternoon of March 25, 2016, Robert Ellis went to his usual barbershop located at “the Hut,” which was in a strip mall at the corner of South Vermont Avenue and 55th Street. The Hut is a known hangout for the Five Deuce Hoovers and Five One Trouble gangs, and members in both gangs were customers of the barber shop. There had been numerous shootings over many years at the location of the shooting. Ellis, however, was not in the gangs, nor was he wearing anything to suggest he was a gang member.
Ellis's barber informed him that he had a few customers ahead of him, so Ellis went outside. There were about 12 people in the parking lot. The shop was busy because it was a holiday weekend. At about 2:14 p.m., a shooter opened fire on the group and Ellis was shot and killed.
The following events were captured by surveillance cameras, and the videos were played at trial. The videos showed the shooter walking up an alley toward the strip mall. The shooter, whose face was partially obscured by a gray hoodie, ran up, crouched behind a car, and then sprang up and fired seven shots from a semiautomatic firearm. The shooter then ran away. One bullet struck and killed Ellis. The rest of the people in the parking lot fled when the shooting began.
Ellis, who had been shot in the chest, died within moments. The bullet that struck Ellis lodged in his body. No other victims were struck by gunfire. Seven expended .45 caliber casings were found on the ground. As of the time of trial, the gun used in the shooting had not been located.
2. Initial Investigation
On April 14, 2016, law enforcement held a press conference to notify the public of a reward being offered for information regarding the shooting. The information disclosed to the media included a general description of the suspect, surveillance video of the shooting, and published still photographs from the video - including one that zoomed in on the shooter's face. The next day, Detective Eric Crosson of the Los Angeles Police Department received tips identifying five or six different people as the suspect. One of the tips led Detective Crosson to locate a Facebook page for someone with the profile name “Dolla Sign Fatal.” The account included photographs of Foster. Crosson learned Foster's name by speaking with gang officer Robert Smith, who knew Foster.
Geqjuan Perteet was identified as a “friend” on Foster's account. Perteet's Facebook page included photographs of Foster displaying hand signs and wearing Nike basketball shoes that appeared to be the same shoes worn by the shooter.
Detective Crosson obtained search warrants for two residences associated with Foster, several phone records, and Facebook accounts. In one of the residences, officers found mail with Foster's name on it and a shoebox with gang graffiti on it. The records obtained from Facebook revealed a telephone number for a cell phone that was used to upload photographs to the account. After obtaining the cell phone records and cell tower information associated with the number, officers obtained an arrest warrant for Foster.
3. Foster's Arrest and Statements to an Undercover Agent in Jail
Foster was arrested on May 5, 2016, and was taken to the 77th Street station. Video footage of Foster showed him walking with the same distinctive gait visible in the video of the shooting (with his feet turned out at the 10 and 2 o'clock position).
The police placed Foster in a cell with an undercover agent, as part of a “Perkins operation.” The agent was wearing a hidden camera that recorded both video and audio. Video and audio recordings from the body camera were played at trial.
In Illinois v. Perkins, 496 U.S. 292, 294 (1990)(Perkins), the United States Supreme Court held that a criminal suspect who makes incriminating statements is not entitled to Miranda warnings “when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.”; see also Miranda v. Arizona, 384 U.S. 436 (1966); People v. Williams, 44 Cal.3d 1127, 1141-42, 245 Cal.Rptr. 635, 751 P.2d 901 (1988) [stating Miranda “has never been applied to conversations between an inmate and an undercover agent”].)
At trial, the prosecutor played for the jury the entire tape of the Perkins conversation, and the jury was provided a transcript as an aid to go along with the tape. Since Foster does not point to any inaccuracies in the transcript, although it was not admitted into evidence, we rely on it for our summary of the Perkins conversation.
When Foster first entered the cell, he asked the agent what he was in for and the agent said he was in custody for a “hot one,” meaning a murder. Foster said, “Me too.” Foster asked the agent about the status of his case and the nature of the evidence against him. The agent talked about his purported offense and told Foster the police had camera footage of his whole face and body, but did not have footage of the shooting itself. Foster stated that, in his case, the police could not just go off video footage because “if they just got part of me or anything . . . that could be anybody.” He added that the police did not have “my weapon, no clothing, no witness.”
The agent asked Foster what “area” he was from, and Foster answered “from 40's.” The agent stated he too was from South Central Los Angeles, and asked Foster if he was “still banging.” Foster answered, “Hell yeah.” Foster agreed that if he was released, he would “have all the respect in the world.”
The agent told Foster that “homies” will cooperate with the police, and asked Foster if the police might be looking for someone else in the offense. Before Foster could answer, the agent asked, “Do you trust him?” Foster responded, “I don't trust nobody . . . .” When the agent said, “Hopefully they don't catch him . . . . Just one less thing you got to worry about,” Foster replied, “I think that's the only thing I'm worried about.”
After additional conversation, Foster said the person they were discussing had been arrested on a robbery and was in jail. He also said the person drove a Nissan. The agent told Foster to get in touch with him. Foster said, “He Hispanic, bro,” and the agent said, “Well, you could still get at him though.” Foster responded, “I could tell some of your boys, huh?” The agent agreed, and asked for his name. Foster said, “He don't . .. bang though, but his name is Duke,” or “Carlos Duke.”
On April 24, 2016, Foster was in a white Nissan Altima being driven by Carlos Duque Molina when it was stopped by the police. The officer who conducted the stop testified that Duque was Latino.
The agent asked if the police had found anything during a search of Foster's residence. Foster said they took an old pair of shoes. The agent asked, “That's . . . not the ones that you had on, right?” Foster responded, “It's close to the color,” but they were not the same.
The agent asked Foster, “What enemy . . . they blaming you for?” Foster said, “some Hoovers.” The agent asked if there had been people near the person who was hit. Foster said there had been, but that they were too busy running and ducking to get a good look at him. The agent emphasized the importance of destroying any possible evidence, saying Foster should get someone to “destroy that gun,” and Foster said he would call someone. Foster spoke with a guard, who told him that no telephone was available at that time.
Foster commented that he was not concerned about fingerprints on the gun because he commonly wore gloves.
The agent asked Foster what kind of gun he used and Foster said, “a chunky little .45.” Foster said the police had little to go on because he had not shouted out his gang's name when he committed the shooting.
4. Cell Phone Data
Officers took Foster's cell phone at the time of his arrest. The phone was later searched. The location data for Foster's phone was consistent with him being in “very close proximity of the crime scene” at the time of the shooting. Usage data for the phone indicated it was used heavily both before and after the shooting, but was turned off for the period between 2:17 p.m. and 2:46 p.m., immediately after the shooting at 2:14 p.m. Later that day, Foster warned someone listed in his contacts as “Duke” to be on alert: “Make sure u stay tucked don't cum out for nothing.”
Foster's search history reflected that he began investigating news reports of the shooting on March 25 before the lead detectives had even responded to the scene. His web search results between March 25 and March 27 included a search for “Vermont and 55th shooting,” and various other crimes including some committed in South Los Angeles and some committed out of state. On April 27th, he searched for “how long can gunpowder last on your clothes.”
5. Gang Evidence be a gang member since at least 2013. The Rollin' 40's mostly had African American members, but also had a small number of Latino members. It was not a rival of any Latino gang, and lived in “relative harmony” with a neighboring Latino gang.
The primary activities of the Rollin' 40's included committing burglaries and shootings. Evidence of specific murders and a bank robbery was presented as predicate, gang-related crimes. Foster had been photographed on prior occasions throwing gang signs with other Rollin' 40's members, including a man who was in custody for attempted murder.
Officer Smith explained that gang members gain status by committing violent crimes, especially against rivals. When asked a hypothetical question based on the facts of the instant shooting, Officer Smith opined that the crime was gang-related. Committing such a shooting would increase the status of the shooter's gang, as well as the shooter's status within the gang. The shooting would also serve the gang's interests by intimidating the public, and strengthening the gang's ability to claim the area and make money in various ways, including demanding “taxes” from businesses located in the gang's territory. Gang members would lose respect for falsely claiming crimes and face “repercussions.”
Detective Crosson also testified that the nature of the shooting indicated it was gang-motivated. He explained that committing such a shooting in Five Deuce Hoover territory would be disrespectful of the Hoovers, even if the person actually shot was not himself a member.
Criminal street gangs use graffiti to mark their territory and identify their enemies. At the time of the shooting, there was graffiti across the street from the strip mall. The graffiti claimed Five Deuce Hoover and Five One Troubles control of the area, and asserted a threat against various other gangs, including the Rollin' 40's. The threat against the Rollin' 40's was expressed by crossing out the number “40” with the letter “K” next to it. The designation of a “K” next to the crossed-out number meant those enemies would be killed.
B. Defense Case
1. Tyrone Mena
Tyrone Mena testified he had known Foster since the ninth grade, lived with him during high school, and stayed in touch thereafter. Mena had never known Foster to be aggressive or violent. Mena did not know Foster to be a gang member, but knew that Foster hung out with Rollin' 40's gang members. Mena had a prior conviction for grand theft, which was not gang related.
2. Defendant Foster
Foster testified on his own behalf. He was 22 years old at the time of the shooting. He grew up in the territory claimed by the Five One Troubles gang and knew the area of the shooting was territory claimed by that gang. Foster admitted to the jury he was a member of the Rollin' 40's. However, he described his participation in the Rollin' 40's as a means of socializing and publicizing his music by lending him “street credit.”
Foster denied being the shooter. He could not remember where he was the day of the shooting, but he commonly visited the general area to visit family and go shopping.
Foster claimed he learned about the shooting through media reports. A Rollin' 40's member named Jeremiah “Spodey Face” Shaw, who Foster had known since 2012, told Foster he had committed the shooting. Foster did not remember where or when that conversation occurred. Foster did not believe Shaw and decided to learn more about the shooting by searching the internet. Indeed, the shooting was such a popular topic among his fellow Rollin' 40's members that Foster conducted many web searches about it. These searches included a search regarding how long gunshot residue lasted on clothing. He searched that topic because Shaw had expressed concern about it in relation to the shooting at The Hut. Foster did not tell the police about Shaw's statements because he did not want to be a “snitch.”
Officer Smith testified that Shaw was murdered by gang members sometime after Ellis was killed. However, Officer Smith was not aware of any connection between the two shootings. Officer Smith had seen Foster and Shaw together.
Foster also texted his friend Duke to “stay tucked,” which meant to stay inside. Foster sent the message because he feared gang members would commit a retaliatory shooting. Duke, however, was not a Rollin' 40's member. Foster acknowledged he previously had been stopped while in a car with Duke and a Rollin' 40's member named Kayvon Murphy.
As for his recorded jailhouse statements to the undercover agent, Foster asserted he falsely made statements about the shooting to make himself seem dangerous to the cellmate. Foster said the first thing he noticed when he entered the cell was that the agent was Latino, which was significant to him because Latino and African American men commonly did not get along in “gang culture.” Moreover, Foster was scared because he previously had been stabbed by Latino individuals. He falsely admitted committing the shooting so he would not appear weak to his cellmate.
Foster testified that in 2013 or 2014, he was walking to a store when he was confronted by “two Hispanic” men, who asked where he was from. By that time, Foster had joined the Rollin' 40's. However, Foster did not mention his gang because he thought doing so might escalate the situation. After Foster and the men exchanged unspecified “words,” Foster started to walk away. The men stabbed him in the back.
When asked what he meant when he told the agent that he was “still banging,” Foster said he simply meant “socializing” with friends. He told the agent the gun used in the shooting was a .45 because that's what his friend “Spodey Face” carried. (Petition, Ex. 1, pp. 2-11; Respondent's Lodgment 11, pp. 2-11; People v. Foster, 61 Cal.App. 5th at 433-39).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The evidence allegedly was insufficient to support Petitioner's attempted murder convictions because of an asserted lack of evidence Petitioner intended to kill the five attempted murder victims (Ground One);
2. The jury instructions and verdict forms allegedly failed to inform the jury that Petitioner assertedly had to have the intent to kill a separate person in each attempted murder count (Ground Two);
3. The evidence allegedly was insufficient to support the gang enhancements (Ground Three);
4. The admission of Petitioner's allegedly involuntary statements to the “inmate-informant” (the Perkins agent) assertedly violated due process (Ground Four);
5. The admission of evidence of an uncharged burglary assertedly violated due process (Ground Five); and
6. The cumulative effect of the above alleged errors assertedly deprived Petitioner of due process and a fair trial (Ground Six).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner 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 for fairminded disagreement.” Id. at 103; see also Shinn v. Kayer, 141 S.Ct. 517, 520 (2020) (per curiam). “If this rule means anything, it is that a federal court must carefully consider all the reasons and evidence supporting the state court's decision.” Mays v. Hines, 141 S.Ct. 1145, 1149 (2021).
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510, 1528 (2022) (under AEDPA, federal habeas court must “assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim”) (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
The Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016), cert. denied, 138 S.Ct. 244 (2017); Franklin v. Johnson, 290 F.3d 1223, 1232-33 (9th Cir. 2002).
I. Petitioner's Challenges to the Sufficiency of the Evidence to Support the Attempted Murder Convictions and the Gang Enhancements Do Not Merit Federal Habeas Relief.
The Court has reordered Petitioner's claims for greater clarity of discussion.
In Grounds One and Three, Petitioner claims there was insufficient evidence to support the five attempted murder convictions and the gang enhancements. For the reasons discussed below, these claims do not merit federal habeas relief.
A. Governing Legal Standards
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was “so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.” Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979) (“Jackson”). A verdict must stand unless it was “so unsupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 655 (2012).
Jackson establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). “First, a reviewing court must consider the evidence in the light most favorable to the prosecution.” Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). At this step, a court “may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” United States v. Nevils, 598 F.3d at 1164 (citation omitted). “Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 (“Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts”) (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial”). The State need not rebut all reasonable interpretations of the evidence or “rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson.” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court “must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court “may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, the federal habeas court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense “is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. at 655; see also Maquiz v. Hedgpeth, 907 F.3d 1212, 1218 (9th Cir. 2018). The Court “must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S. at 131 (citation omitted). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). This Court has conducted such an independent review.
The Supreme Court has “made it clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. at 651; see also Parker v. Matthews, 567 U.S. 37, 43 (2012) (combination of AEDPA standard of review and Jackson standard imposes a “twice-deferential standard”); Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018) (“In addition to Jackson's already deferential standard, a second level of deference applies under AEDPA.”) In assessing a sufficiency of evidence challenge governed by the AEDPA standard of review, a federal habeas court must apply a “double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 566 U.S. 1039 (2012).
B. Sufficiency of the Evidence to Support the Five Attempted Murder Convictions
Under California law, attempted premeditated murder requires: (1) the specific intent to kill the alleged victim; (2) a direct but ineffectual act toward accomplishing the intended killing; and (3) a finding that the attempted murder was wilful, deliberate, and premeditated. See People v. Sanchez, 63 Cal.4th 411, 457, 204 Cal.Rptr.3d 682 (2016), cert. denied, 137 S.Ct. 1340 (2017); People v. Smith, 37 Cal.4th 733, 739-40, 37 Cal.Rptr.3d 163 (2005) (noting that a “willful, deliberate, and premeditated” finding is only necessary for a sentence enhancement) (citations omitted); see also Cal. Penal Code §§ 187(a), 664(a). Because there is rarely direct evidence of a defendant's intent, intent usually must be inferred from all the attendant circumstances, including the defendant's actions. See People v. Sanchez, 63 Cal.4th at 457; see also Jackson v. Virginia, 443 U.S. at 325 (evidence of shooting multiple shots at close range indicates manner of attempted killing consistent with premeditation and deliberation).
Petitioner argues that the evidence was insufficent to support the attempted murder convictions because of an alleged lack of evidence Petitioner had intended to kill the five victims (Petition, ECF Dkt. No. 1, p. 48; Reply, p. 6). Petitioner argues he targeted only Ellis, asserting: (1) Petitioner “‘fire[d] seven times with a straight arm' and ‘did not scatter his shots or move his arm to suggest an attempt to hit multiple targets,'” and (2) the five victims assertedlywere not in the “line of fire when the bullets were fired” (Reply, p. 5; Respondent's Lodgment 11, p. 19, 24). The Court of Appeal rejected these arguments (Respondent's Lodgment 11, pp. 21-27; People v. Foster, 61 Cal.App. 5th at 439-45).
The Petition and attachments thereto do not bear consecutive page numbers. The Court uses the ECF pagination when referring to the Petition or the attachments thereto.
Contrary to Petitioner's arguments, there existed sufficient trial evidence of a specific intent to kill the five persons standing near Ellis. As stated above, there does not need to be direct evidence of specific intent; specific intent may be inferred from the circumstances. See People v. Sanchez, 63 Cal.4th at 457. Here, the circumstances amply support an inference of specific intent to kill the persons standing outside the barbershop toward whom Petitioner shot. Petitioner's shots intentionally placed each such person at immediate risk of death. Petitioner neither knew nor had any prior encounters with Ellis or any of other five victims; the circumstances suggested no differential intent between the shooting toward Ellis and the shooting toward the other victims. A video showed the following:(1) Prior to the shooting, Ellis and the five other victims were standing outside the barbershop in such close proximity to one another that “they fit within the metal door frame of the barbershop”; (2) Petitioner walked up the alley toward the group, bent down for cover by a parked car, and then rapidly fired a semi-automatic weapon in the direction of the group from a distance of only 40 to 50 feet; (3) Petitioner continued to fire in the group's direction as he walked backward toward his getaway car; and (4) the five attempted murder victims dispersed and took cover as bullets bounced off the stucco wall. Detective Crosson testified that seven bullet casings were found at the scene, three of which had made strike marks on a mini-van parked near where the group had been standing (R.T. 2708, 2718-20). Detective Crosson also testified that police found one bullet hole on the metal roll-up door and additional strike marks on the frame of the metal door (id.). “That [P]etitioner may have missed [or] caused a non-fatal injury does not mean he lacked specific intent to kill.” Aguirre v. Lewis, 2015 WL 3604445, at *7-9 (C.D. Cal. Apr. 16, 2015), adopted, 2015 WL 3605137 (C.D. Cal. June 2, 2015), aff'd, 677 Fed. App'x. 378 (9th Cir. 2017) (denying similar sufficiency challenge to attempted murder conviction) (citation omitted); see also People v. Robbins, 19 Cal.App. 5th 660, 669, 228 Cal.Rptr.3d 468 (2018) (accurate aim is not required; where “defendant fired at Jones and shot a wall, defendant would still be guilty of the attempted murder of Jones”).
The Court of Appeal stated that it had “reviewed the surveillance footage . . . filmed from three different locations that showed different aspects of the events leading up to and after the shooting, as well as the shooting itself, without sound” (Respondent's Lodgment 11, p. 23, n.17).
Contrary to Petitioner's arguments, the manner of the shooting itself supports a reasonable inference that Petitioner intended to kill the five attempted murder victims. As shown by the bullet hole and the strike marks discovered at the scene, Petitioner fired seven shots in the direction of at least six individuals from close range, killing one (Ellis). See People v. Smith, 37 Cal.4th at 742 (explaining that “the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice”). Petitioner argues that the manner in which the shooting occurred (firing seven times assertedly with a straight arm and not scattering his shots) necessarily means that Ellis was the only intended victim. However, Petitioner ignores the fact that the five attempted murder victims were standing very close together in a group which included Ellis. See People v. Canizales, 7 Cal. 5th 591, 592, 248 Cal.Rptr.3d 370 (2019) (upholding two counts of attempted murder based on firing single bullet at close range at two victims who were in shooter's direct line of fire). The fact that only one of the seven bullets fired by Petitioner struck only one of the persons in the group toward which Petitioner shot reasonably may be attributed to poor marksmanship or good fortune; such fact does not negate Petitioner's intent to kill each of the persons in the group at which Petitioner shot. See People v. Smith, 37 Cal.4th at 742 (“the circumstance that the bullet misses its mark or fails to prove lethal” does not disprove intent to kill; “the very act of firing a weapon in a manner that “could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill”) (citations and quotations omitted); see also People v. Chinchilla, 52 Cal.App.4th 683, 690, 60 Cal.Rptr.2d 761 (1997) (“the fact that the victim escaped death because of the shooter's poor marksmanship does not necessarily establish a less culpable state of mind” (citation omitted)). A rational jury could conclude that the failure to strike the five attempted murder victims with any of the seven bullets fired did not negate Petitioner's intent to kill.
Furthermore, from Petitioner's recorded conversation with the Perkins agent, a jury rationally could infer that Petitioner intended to target more persons than just Ellis. During the jail cell exchange, when the agent asked Petitioner, “[w]hat enemy -- enemy they blaming you for,” Petitioner replied, “some -- some Hoovers. You know, we be going with the Hoovers” (Respondent's Lodgment 14, p. 47).
Later in the exchange, when the agent asked if “[t]here was a gang of them,” Petitioner responded, “[u]h-huh” (Respondent's Lodgment 14, p. 65).
In arguing this claim, Petitioner attempts to impugn prosecution evidence and reiterates his own version of the events (Petition, ECF Dkt. No. 1, pp. 4, 6; Reply, pp. 3-6.). However, this Court can neither reweigh the evidence nor redetermine issues of credibility resolved by the jury. See Cavazos v. Smith, 565 U.S. at 7-9 (jury entitled to credit prosecution testimony despite conflicting defense testimony); McDaniel v. Brown, 558 U.S. at 131-34 (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (federal habeas court cannot revisit the jury's resolution of inconsistencies between the victim's testimony and the testimony of other witnesses); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (same).
In sum, a rational jury could have inferred that Petitioner intended to kill not only Ellis, but also the five attempted murder victims. Accordingly, the Court of Appeal's rejection of Petitioner's claim was neither “contary to,” nor “an unreasonable application of,” any “clearly established Federal law as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d); Jackson v. Virginia, 443 U.S. at 317, 319; Summers v. Pfeiffer, 2017 WL 5440544, at *11-12 (C.D. Cal. June 28, 2017), adopted, 2017 WL 5310678 (C.D. Cal. Nov. 10, 2017). Therefore, Petitioner is not entitled to federal habeas relief on Ground One.
C. Sufficiency of the Evidence to Support the Gang Enhancements
California Penal Code section 186.22(b) authorizes a sentence enhancement for “any person who is convicted of a felony committed for the benefit of . . . or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . ." See People v. Albillar, 51 Cal.4th 47, 50, 60-68, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010) (“Albillar”).
Petitioner does not challenge the sufficiency of the trial evidence to prove that the Rollin' 40's was a criminal street gang or to prove that Petitioner was a member of that particular gang. Petitioner also does not challenge the sufficiency of the evidence to prove that the shooting took place in rival Hoovers' gang territory. Petitioner nevertheless contends that the evidence was insufficient to support the gang enhancements. Petitioner contends there was no evidence that, at the time of the shooting, gang signs were made, gang slogans were shouted, gang attire was worn, or the victims knew Petitioner was a gang member (Petition, ECF Dkt. No. 1, p. 4; Reply, p.10-11). Petitioner further contends that the testimony of the prosecution's gang expert was in “generalized” terms with “no underlying factual support for his opinion that the crime was gang motivated” (Id.).
The Court of Appeal rejected Petitioner's contentions (Respondent's Lodgment 11, pp. 34-37; People v. Foster, 61 Cal.App. 5th at 445). The Court of Appeal reasoned that the evidence, including evidence that Petitioner, a gang member, opened fire on a group of ostensibly random people in the territory of a known gang rival, and evidence that Petitioner essentially admitted (to the Perkins agent) that the crime had been gang-motivated, sufficiently supported the jury's gang-related findings (id.). The Court of Appeal's decision was not objectively unreasonable.
“Expert opinion that particular criminal conduct benefitted a gang is not only permissible but can be sufficient.” People v. Vang, 52 Cal.4th 1038, 1048, 132 Cal.Rptr.3d 373 (2011) (citation and internal quotations omitted); see Albillar, 51 Cal.4th at 63; However, an opinion by a gang expert “alone” sometimes may not be sufficient. See People v. Ferraez, 112 Cal.App.4th 925, 931, 5 Cal.Rptr.3d 640 (2003) (dicta). “The record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of a criminal street gang.” Johnson v. Montgomery, 899 F.3d 1052, 1058 (9th Cir. 2018) (dicta) (internal quotations and ellipses omitted). “[T]he typical close case is one in which one gang member, acting alone, commits a crime.” People v. Morales, 112 Cal.App.4th 1176, 1198, 5 Cal.Rptr.3d 615 (2003); see also Maquiz v. Hedgpeth, 907 F.3d 1212, 1220-21 (9th Cir. 2018) (finding evidence insufficient to support gang enhancement where defendant, acting alone, robbed victim in an area that was not gang territory, and there was no evidence tying the robbery to any gang).
Here, the gang expert's testimony was not “alone,” and the supporting evidence was constitutionally sufficient. The expert's testimony was “rooted in facts shown by the evidence.” See People v. Vang, 52 Cal.4th at 1045. For example, Petitioner made numerous admissions to the Perkins agent which indicated that the crime was gang motivated. Petitioner said he was “from 40s” and was still banging” (Lodgment 14, p. 6). Petitioner admitted that he intentionally had not shouted out his gang's name during the shooting merely to make it more difficult for the police investigation to identify the shooter (Respondent's Lodgment 14, p. 72). Petitioner added that, if he was released, he would “have all the respect in the world” (Respondent's Lodgment 14, pp. 27). For further example, Detective Crosson (as well as the prosecution expert Smith) testified that the nature of the shooting bore the hallmarks of a gang-related crime (R.T. 4228-31). Crosson explained that committing such a shooting in Hoovers territory, even when the victim is not a gang member, would be “disrespectful” of the Hoovers, thus elevating the status of the shooter and the shooter's gang (R.T. 4305). Crosson also testified that, early in the investigation, he noticed “relatively fresh” graffiti on the wall across the street from the crime scene. This grafitti had certain gang names “crossed out,” including the “40's” with the word “killer” behind it (R.T. 4232-33).
The gang expert provided additional testimony as to the gang culture in general and the Rollin' 40's gang in particular. He testified that respect, in the form of fear, is essential to gangs (R.T. 4531-33). He further testified that the Rollin' 40's gang engaged in crimes such as burglaries, weapons possession, and attempted murders (R.T. 4318-20). In response to a hypothetical presenting the precise facts of the present case, the expert opined that Petitioner's actions were done in association with and for the benefit of the gang, and were consistent with a gang member's attempt to enhance the reputation of his gang so as to promote and further the gang member's criminal conduct (R.T. 4531-36). It is also noteworthy that there was no trial evidence suggesting any other motive for this shooting. There was no evidence Petitioner had any individual animus toward any of the victims. There was no evidence Petitioner was mentally deranged. There was no evidence Petitioner was pursuaing the agenda of a political or religious terrorist. Only a gang motive made any semblance of sense out of what had occurred.
From the evidence presented, a rational jury could have concluded that Petitioner, an admitted gang member, committed the shooting in rival gang territory with the intent to benefit Petitioner's gang and increase his gang status. The fact, if it was a fact, that Petitioner made no gang signs, shouted no gang slogans and wore no gang attire does not compel an opposite conclusion. See Esparza v. Uribe, 593 Fed. App'x 728, 729 (9th Cir.), cert. denied, 577 U.S. 841 (2015) (evidence of gang intent was sufficient where lone defendant “went out of his way” to commit the crime in gang territory and where gang expert testified that the commission of the crime in gang territory would benefit gang by intimidating community members and warding off rival gangs); see also People v. Vazquez, 178 Cal.App.4th 347, 354, 100 Cal.Rptr.3d 351 (2009) (upholding jury's reliance on expert opinion that the murder of a nongang member benefited the gang because “violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents. . . .”).
In arguing this claim, Petitioner again invites the Court to reweigh the evidence, draw different inferences therefrom and second-guess the Court of Appeal's application of Jackson. Again, this federal habeas Court may not do so. See Cavazos v. Smith, 565 U.S. at 7-9. For the reasons discussed above, it was reasonable for the Court of Appeal to conclude that the jury's true findings on the gang enhancements were not “so insupportable as to fall below the threshold of bare rationality.” See Coleman v. Johnson, 566 U.S. at 656.
For all the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the gang enhancements was neither “contrary to,” nor an objectively “unreasonable application of,” any “clearly established Federal Law as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). The Court of Appeal's decision was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” See Harrington v. Richter, 562 U.S. at 103. Therefore, Petitioner is not entitled to federal habeas relief on Ground Three.
II. Petitioner Is Not Entitled to Federal Habeas Relief On His Claim of Alleged Instructional Error.
A. Governing Legal Standards
Jury instructional error warrants federal habeas relief only if the “instruction by itself so infected the entire trial that the resulting conviction violates due process.” Waddington v. Sarausad, 555 U.S. at 191(citation and internal quotation marks omitted). The challenged instruction must be more than merely erroneous; rather, a petitioner must show there was a “reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Middleton v. McNeil, 541 U.S. 433, 437(2004) (per curiam) (internal quotation mark omitted); accord Waddington v. Sarausad, 555 U.S. at 190-91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly faulty] instruction was used, it must be established not merely that the instruction is undesirable, erroneous or even ‘universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.”). Whether a constitutional violation occurred must be evaluated in the context of the instructions as a whole and the entire trial record. Estelle v. McGuire, 502 U.S. 62, 72 (1999).
Further, petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). “Actual prejudice” exists only where the error had a “substantial and injurious effect or influence in determining the jury's verdict.” Id.; see also Davis v. Ayala, 576 U.S. 257, 268 (2015) (“There must be more than a ‘reasonable possibility' that the error was harmful.”).
B. Analysis
Petitioner argues that the jury instructions and verdict forms for Counts 2 through 6 allegedly failed to make sufficiently clear to the jury that Petitioner assertedly had to have intended to kill a separate person in each of those counts (Petition, ECF Dkt. No. 1, p. 4; Reply, p. 6). Petitioner argues that this alleged failure “had the effect of omitting an element of the offense [of attempted murder] and allowing the jury to convict on erroneous legal theories” (Id.). The Court of Appeal rejected Petitioner's arguments, ruling that the trial court's directives to the jury were neither incorrect nor misleading (Respondent's Lodgment 11, pp. 10-1; see People v. Foster, 61 Ca. App. 5th at 445.
Both [the instructions] and the verdict forms separated the attempted murder charges as to each victim into individual courts. . . . In light of the instructions given, and the prosecutor's comments, it is not reasonably likely the jury misinterpreted the instructions to convict Foster based on a finding that he harbored an intent to kill only one unidentified person of the group. Instead, the instructions and arguments adequately informed the jury that
in order to convict Foster of the murder of Ellis, and the attempted murder of five additional people, the jury had to find that when he fired seven rounds at the group outside the barber shop, he intended to kill someone with each round. . . .(Respondent's Lodgment 11, p. 31; see People v. Foster, 61 Cal.App. 5th at 445).
The Court of Appeal's ruling was not unreasonable. The trial court instructed the jury that “[t]he defendant is charged in counts 2, 3, 4, 5, and 6 with attempted murder” (R.T. 5157). The trial court further instructed the jury that “[if] you find the defendant guilty of attempted murder under counts 2 through 6, you must then decide whether . . . the attempted murder was done willfully and with premeditation, deliberation . . . ." (R.T. 5157-58) (emphasis added). In the instructions given just prior to closing argument, the trial court told the jury, “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one” (R.T. 5174). The jury received separate verdicts for each of the five counts of attempted murder (R.T. 5160; C.T. 416-25). In closing argument, the prosecution repeatedly stressed to the jury that the burden was on the prosecution to prove that Petitioner intended to kill Ellis and all of the five other victims separately (R.T. 5178-81). For example, the prosecution stated:
The next allegation that you'll be asked is in the attempted murder which are counts 2 through 6 is whether . . . those were done willful, premeditated and with deliberation. We'll get to that in a little bit more and that will be a finding you have to make on each of those individuals as true.”(R.T. 5176) (emphasis added). The prosecution explained to the jury that “willful” is when “[y]ou pointed a gun at a crowd of people, you wanted to kill those people” (R.T. 5178-79). Returning to attempted murder, the prosecutor said, “you shoot at somebody with the intent to kill them and miss” (R.T. 5180). The prosecutor proceeded to add, “[h]e pops up, gun in hand and unleashes seven rounds intending to kill his targets” (R.T. 5185). In rebuttal argument, the prosecutor stated, “And it's sad to say that Foster killed a man . . . and he tried to kill five others. He tried to kill everybody out in front of that store when he shot” (R.T. 5224) (emphasis added).
The jury's finding that the five attempted murders were “willful, deliberate and premeditated,” further suggested that the instructions and verdict forms did not mislead the jury as to the specific intent requirement for each victim. See Delgado v. Madden, 2020 WL 6051603, at *17 (C.D. Cal. May 4, 2020), adopted, 2020 WL 4934364 (C.D. Cal. Aug. 21, 2020) (“The Court of Appeal did not unreasonably conclude that the jury was not misled on the intent element . . . given that the jury returned a verdict confirming its finding that Petitioner committed the attempted murder ‘willfully, deliberately and with premeditation' as to [each victim] specifically.”); see also Barajas v. Lewis, 2012 WL 3126822, at *7 (N.D. Cal. July 30, 2012) (“[T]he jury's separate finding of willfulness makes it unlikely that the ‘kill-zone' instruction had a ‘substantial or injurious' influence in determining the jury's guilty verdict on the charge of attempted murder.”).
Therefore, the Court of Appeal's rejection of Petitioner's claim of instructional error was neither “contrary to,” nor an objectively “unreasonable application of,” any “clearly established Federal Law as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Two of the Petition.
III. The Admission of Petitioner's Statements to the “Inmate-Informant” Does Not Merit Federal Habeas Relief.
In Ground Four, Petitioner argues that his statements to the Perkins agent were the product of coercion such that the statements' admission at trial violated due process (Petition, ECF Dkt. No. 1, p. 4; Reply, pp. 12-13). Petitioner argues that his statements were involuntary because the police placed Petitioner, a young, gang-affiliated, African American inmate, in a locked cell with an older, gang-affiliated, Latino inmate (Id.). After examining the totality of the circumstances, the Court of Appeal rejected Petitioner's arguments, concluding that Petitioner's “misplaced trust in confiding to a man he believed to be a fellow inmate does not render his statements involuntary” (Respondent's Lodgment 11, pp. 15-16; People v. Foster, 61 Cal.App. 5th at 439).
A. Background
The Court of Appeal described the background for this claim:
Prior to trial, defense counsel moved to exclude Foster's conversation with the Perkins agent. In the written motion, defense counsel pointed out the agent was Latino, and argued Foster believed the agent would attack him for being African American. Counsel further noted the transcript of the Perkins conversation indicated Foster previously had been attacked and stabbed by Latino individuals. Counsel argued Foster was naive due to the fact that he was 22 years old and had never been to prison. Defense counsel claimed the undercover agent's comments about having committed a murder against a “fool” who “didn't even want to pay taxes” “could only be interpreted as a threat to . . . Foster that he could face the same treatment.” As such, any statements made by Foster were made “under circumstances where . . . Foster needed to deter an immediate threat before him.”
At trial, it was established that the agent was Latino, approximately 35 years old, and five feet, nine inches tall with a medium build and without visible tattoos.
The portion of the Perkins transcript cited by defense counsel is in conflict with Foster's trial testimony. Foster told the agent that “last year” (i.e., 2015) he had encountered men he thought belonged to a tagging crew. After exchanging words, Foster turned his back on them and one of them stabbed him. Foster at no point mentioned the men were Latino, instead referring to them as “some little niggas.” In contrast, as noted above in footnote 5, Foster testified at trial he previously had been stabbed by “Hispanic” individuals in 2013 or 2014.
During oral argument on the motion, defense counsel asserted that Foster “was unfamiliar with the workings of the county jail system,” but knew that he was in heightened danger because jailhouse authorities had placed him in a cell with a Latino man. Defense counsel, however, acknowledged the agent made no threatening move, at no time raised his voice, and spent the conversation laying on a bunk and eating a snack.
The trial court denied the motion. The court observed that the tone of the conversation was relaxed, that no threat was made, and that no evidence had been presented to support the assertion that Foster had been naive or afraid. The court also rejected counsel's argument that “whenever a Black and Latino are placed in the same small, confined setting, there is a credible threat of violence.” The court found there was no evidence that “in this particular situation” Foster “was scared of [the informant] and therefore made statements that he would not otherwise have given.”
The trial court stated it had reviewed the transcripts, all exhibits submitted, including the CDs and videos of the conversation.
For the first time on appeal, Foster contends the following comment by the trial court demonstrates it failed to apply the preponderance of evidence standard: “It is equally compelling to the court to believe [Foster] embraced the individual as a fellow person in custody alleged to have been involved in a murder and as a result he felt safe in confiding in him ....” This isolated comment-made after the court ruled that Foster had not been coerced-does not indicate that the court misunderstood the burden of proof. Moreover, since we independently review the undisputed evidence on the issue, the trial court's comment has no bearing on the outcome of this appeal. (People v. Maury (2003) 30 Cal.4th 342, 404, 133 Cal.Rptr.2d 561, 68 P.3d 1.)
(Respondent's Lodgment 11, pp. 11-13; People v. Foster, 61 Cal.App. 5th at 439).
B. Governing Legal Standard
The Due Process Clause of the Fourteenth Amendment bars evidence of involuntary confessions. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986). Whether a confession is involuntary rests on the “totality of the circumstances, including the “characteristics of the accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 434 (2000) (citation omitted). “A confession is involuntary if coerced either by physical intimidation or psychological pressure,” United States v. Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004), cert. denied, 543 U.S. 1057 (2005) (en banc) (citation omitted), “extracted by any sort of threats or violence, (or) obtained by any direct or implied promises, however slight, (or) by the exertion of any improper influence,” Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam) (citation omitted). “[Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause.” Colorado v. Connelly, 479 U.S. at 167.
C. Analysis
The Court of Appeal reasonably found that Petitioner's statements were not the product of coercion. There is no indication in the transcript of the recorded conversation that Petitioner was under any physical or psychological pressure, or that he was otherwise improperly induced. Any “coercive atmosphere [was] lacking”; Petitioner spoke freely with a person he believed to be a fellow inmate when he implicated himself in the shooting. See Perkins, 496 U.S. at 297 (allowing law enforcement to use “strategic deception” to “tak[e] advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner”). reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect [Perkins's] future treatment. [Perkins] viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, [Perkins] was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril”); see also Robles v. Valenzuela, 656 Fed. App'x 325, 326 (9th Cir. 2016) (noting “the undercover officers did not threaten Robles or otherwise compel him to speak against his will”, and concluding that state court reasonably found that “Robles believed he was speaking to an experienced criminal who could help him with his story, thus motivating Robles to speak freely and precluding a finding that his statements were coerced” (citation omitted)).
Petitioner's assertion that he allegedly was fearful because of the agent's Latino race did not compel the conclusion Petitioner's statements were involuntary. From the outset, Petitioner evinced little hesitation in describing his version of the shooting to the Latino agent (Respondent's Lodgment 14, p. 2). Early in the exchange, Petitioner asked the agent, “I wonder why they put us in the same cell” and the agent said, “[b]ecause we're murders” (Respondent's Lodgment 14, p. 37). Petitioner responded, “[i]t is what it is. I ain't really not trippin of it” (Id.) (emphasis added). Later in the conversation, Petitioner confided to the agent that Petitioner's “Hispanic” friend, “Carlos Duke” could implicate him in the shooting (Respondent's Lodgment 14, pp. 41-42). When the agent suggested Petitioner find “Carlos Duke,” Petitioner said, “I could tell some of your boys, huh?” (Id.) Petitioner, apparently concerned that “Carlos Duke” might identify Petitioner as the shooter, evidenced no fear of asking for the agent's help in reaching out to the agent's Hispanic “boys.” Again, the nature of the conversation did not suggest that the agent exerted any coercion on Petitioner (based on the agent's Latino race or otherwise). See Thomas v. Barnes, 2012 WL 7655684, at *8 (C.D. Cal. Sept. 28, 2012), adopted, 2013 WL 802767 (C.D. Cal. Mar. 1, 2013) (finding that petitioner's confession was voluntary because transcript reflected that he was “speaking freely with a fellow inmate when he implicated himself in the two shootings”).
Finally, nothing in the record suggests that any age gap coerced Petitioner into making a false confession. People v. Rodriguez, 40 Cal.App. 5th 194, 197-99, 253 Cal.Rptr.3d 76 (2019) (rejecting the defendant's assertion that the police coerced his confession by placing him in a cell with an older gang member where the conversation between the two appeared relaxed and jovial and there was no evidence to suggest the defendant was pressured).
For all of the foregoing reasons, the Court of Appeal's determination that the challenged statements were voluntary was not: (1) “contrary to,” or an objectively “unreasonable application of,” any “clearly established Federal law as determined by the Supreme Court of the United States”; or (2) “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03; Alejandre v. Montgomery, 2019 WL 7666541, at *12-15 (C.D. Cal. Oct. 7, 2019), adopted, 2020 WL 374882 (C.D. Cal. Jan. 19, 2020). Therefore, Petitioner is not entitled to federal habeas relief on Ground Four.
IV. The Admission of Evidence of an Uncharged Burglary Does Not Merit Federal Habeas Relief.
In Ground Five, Petitioner claims that the trial court violated his right to due process by erroneously admitting several text messages on his cell phone that referenced an uncharged burglary (Petition, ECF Dkt. No. 1, p. 3; Reply, pp. 19-20). The Court of Appeal rejected this claim, finding that the evidence had been properly admitted (Respondent's Lodgment 11, pp. 41-42).
A. Background
The Court of Appeal described the background for this claim:
People's Exhibit 32 was a printout of text messages found on Foster's phone. As described above, during the prosecution's case-in-chief, the prosecutor elicited testimony that shortly after the shooting, Foster texted someone listed in his contacts as “Duke”: “Make sure u stay tucked don't cum out for nothing.”
During the defense case, Foster testified that he knew Duke “from high school football” and that Duke was not a member of the Rollin' 40's. He texted Duke on the day of the shooting because he was afraid of a retaliatory shooting by the targeted gang. However, Foster claimed he only texted Duke after his friend Spodey Face confided in Foster that he had “shut down the hut.”
Foster described his own participation in the Rollin' 40's as a means of socializing and publicizing his music by lending him “street credit.” He stated he was granted “walk-on” status to the gang, because he went to high school with most of the gang members, and had hung out with them. As a walk-on member, Foster was allowed to throw their hand gestures, and do everything they could do, but “just not all the way.”
After Foster testified, the parties discussed the admissibility of additional text messages included in Exhibit 32. The text messages included messages sent on March 25, 2016, between Foster and someone named “Bd4,” that referenced “Hood Day.”24 Bd4 texted Foster, “Duke sed I kno yall got somethin out dat house fuccin clown,” and Foster replied, “He stupid[.] The lit bit we got aint shit.”
Defense counsel objected to the text exchange with Bd4 as irrelevant and prejudicial evidence of a burglary, noting that Officer Smith had testified that he believed Duke (aka Molina) was in custody for a recent burglary. Defense counsel also argued that Foster's association with Duke was not at issue since he admitted Duke was his friend.
The trial court ruled the text messages between Foster and Bd4 were relevant because (1) “they involve an individual named Duke who has been referenced in this case”; (2) “one of the primary activities of the Rollin' 40's is the commission of burglaries”; and (3) “[Foster]. . . testified and admitt[ed] his gang admission to the Rollin' 40's.” The text messages were admitted into evidence after the close of testimony and were not discussed nor summarized during the presentation of evidence.
(Respondent's Lodgment 11, pp. 38-40; People v. Foster, 61 Cal.App. 5, at 445).
B. Analysis
Petitioner's claim fails under the AEDPA standard of review. The United States Supreme Court “has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). More specifically, the United States Supreme Court has never held that the admission of prior bad acts evidence to prove propensity violates a criminal defendant's federal constitutional due process right to a fair trial. See Estelle v. McGuire, 502 U.S. at 75 n.5 (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes' evidence to show propensity to commit a charged crime”); see also Jennings v. Runnels, 493 Fed. App'x 903, 906 (9th Cir. 2012), cert. denied, 574 U.S. 842 (2014) (the Supreme Court has not held that propensity evidence violates Due Process, and the “absence of Supreme Court precedent on point forecloses any argument that the state court's decision [denying challenge to admission of propensity evidence] was contrary to or an unreasonable application of clearly established federal law”) (citation omitted); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire); see generally Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where the Supreme Court has “expressly left [the] issue an ‘open question,'” habeas relief is unavailable).
Thus, in the absence of such “clearly established Federal law as determined by the United States Supreme Court,” the AEDPA standard of review precludes Petitioner's challenge to the admission of the challenged text messages. See Carey v. Musladin, 549 U.S. 70, 77 (2006); Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009).
In any event, the admission of evidence can violate due process “only when there are no permissible inferences the jury may draw from the evidence.” Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (original emphasis; citation and internal quotations omitted); see also Estelle v. McGuire, 502 U.S. at 70. The Court of Appeal ruled that, under state law, evidence of the text messages was relevant to challenge Petitioner's credibility (Respondent's Lodgment 11, p. 42; People v. Foster, 61 Cal.App. 5th at 445). See Cal. Evid. Code § 1101(b) (evidence of uncharged conduct admissible to prove “some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . ."). Although Petitioner disputes the correctness of this ruling, this federal Court cannot properly second guess a state court's state law ruling. See Waddington v. Sarausad, 555 U.S. at 192 n.5 (“we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law"). Therefore, the admission of this evidence did not render Petitioner's trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. at 70.
Furthermore, any alleged error was harmless under the harmless error standard applicable to federal habeas corpus actions set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) (“Brecht"). Under Brecht, a federal habeas court will not disturb a conviction unless the alleged non-structural error had a “substantial and injurious effect or influence in determining the jury's verdict." Id. at 637-38 (citation and quotations omitted). Here, as the Court of Appeal observed, the challenged evidence was admitted after the close of testimony and was neither discussed nor summarized by either party during the presentation of evidence or in closing arguments (Respondent's Lodgment 11, pp. 40-41; People v. Foster, 61 Cal.App. 5th at 445). Under these circumstances, and in the context of the trial as a whole, the challenged evidence had no substantial or injurious effect or influence on the verdict. See Brecht, 507 U.S. at 637-38.
For the foregoing reasons, the Court of Appeal's rejection of this claim was neither “contrary to,” nor an objectively “unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court.” See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 86. Petitioner is not entitled to federal habeas relief on Ground Five.
VI. Cumulative Error Claim (Ground Six)
Because Petitioner has failed to establish any error of constitutional magnitude with respect to Grounds One through Five, there can be no accumulation of prejudice amounting to a denial of due process. See Lopez v. Allen, 47 F.4th 1040, 1053 (9th Cir. 2022) (“Because Petitioner has failed to establish multiple errors of constitutional magnitude, there can be no accumulation of prejudice amounting to a denial of due process”) (citations omitted); see also Demetrulias v. Davis, 14 F.4th 898, 916 (2021), cert. denied, 143 S.Ct. 132 (2022) (same); Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.” (citation omitted)).
Therefore, the Court of Appeal's rejection of this claim was neither “contrary to,” nor an objectively “unreasonable application of,” any “clearly established Federal law as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Ground Six.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment shall be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and on all counsel of record.
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.