Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DEAN D. PREGERSON, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, 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 filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 27, 2014. Respondent filed an Answer on August 25, 2014. Petitioner filed a Traverse on January 15, 2015.
BACKGROUND
The State brought charges against Petitioner and his co-defendant, Johnny Filipo, in connection with a shooting. A jury found Petitioner and Filipo guilty of: (1) one count of conspiracy to commit murder in violation of California Penal Code section 182(a)(1) (Count 1); (2) five counts of wilful and premeditated attempted murder in violation of California Penal Code sections 187(a) and 664 (Counts 2, 3, 4, 5, 6); and (3) five counts of assault with a firearm in violation of California Penal Code section 245(a)(2) (Counts 7, 8, 9, 10, 11) (Reporter's Transcript ["R.T."] 2403-26; Clerk's Transcript ["C.T."] 336-88). The jury found true the allegations that Petitioner and Filipo committed all of the offenses for the benefit of a criminal street gang within the meaning of California Penal Code section 186(b)(1)(C) (R.T. 2403-26; C.T. 336-88). The jury found not true the allegations that Petitioner: (1) personally used a firearm within the meaning of California Penal Code section 12022.53(b) in the commission of the conspiracy and attempted murders; (2) personally and intentionally discharged a firearm within the meaning of California Penal Code section 12022.53(c) in the commission of the conspiracy and attempted murders; (3) personally and intentionally discharged a firearm which proximately caused great bodily injury or death within the meaning of California Penal Code section 12022.53(d) with respect to the conspiracy, two of the attempted murders and the assaults; and (4) personally inflicted great bodily injury on Maria Ho-Ching and Hoching Ho-Ching within the meaning of California Penal Code section 12022.7(a) (R.T. 2403-15; C.T. 336-54, 359-66). The trial court denied Petitioner's motion for a new trial (R.T. 2706-07; C.T. 429). Petitioner received a sentence of 90 years to life (R.T. 2713-14; C.T. 428-34).
The jury found the firearm enhancements true with respect to Filipo (R.T. 2416-26; C.T. 368-88).
The California Court of Appeal modified Petitioner's sentence but otherwise affirmed the judgment (Respondent's Lodgment 8; see People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 12).
Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a written order (Respondent's Lodgments 13, 14). Petitioner filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, which those courts denied summarily (Respondent's Lodgments 15, 16, 17, 18).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
Prosecution Evidence
Sometime around 2004 Sheila Ho-Ching became a member of the West Side Piru gang that was affiliated with the Bloods. Beginning in October 2008, Sheila started spending time with her cousin Faasooso Tautolo who was a member of the Sons of Samoa (S.O.S.), a Crips street gang. Faasooso's father Eni Tautolo was the head of the S.O.S. Sheila lived with her father Hoching Ho-Ching, Jr. (Joe) and her mother Maria Ho-Ching. Other West Side Piru members were known to spend time at the house. Beginning in November 2008, the S.O.S. gang vandalized the Ho-Ching residence. Car windows were broken and a brick was thrown through the front window. Gang-related graffiti claiming S.O.S. territory and identifying Sheila and Faasooso by their street names was written on the house and street including the words "Peanut Killer" and "F P-dime."
Sheila's moniker was "P-dime" and the P referred to Piru. Peanut was a derogatory term used to refer to members of the West Side Piru gang.
On February 16, 2009, a four-door gold Kia drove slowly by the Ho-Ching residence a number of times. Sheila recognized Filipo and another individual named Ross Ian Samana as two of the occupants of the vehicle the first two times it went by the house. Filipo flashed gang signs for S.O.S., called Maria Ho-Ching "a B word" and yelled "F Peanuts" and "I will be back." The third time the car drove by the house only appellant Filipo was in the car. Joe recognized the gang signs that Filipo flashed as being from the S.O.S. gang. He called his son Daniel Ho-Ching who lived nearby, to come over to see if he knew who the people were that were driving by his home.
Samana is not part of this appeal.
Daniel, driving a blue GMC Yukon arrived within minutes and his parents and sister told him about the vehicle circling their home. He drove around the neighborhood a few times but did not see it. He returned to his parents' house moments before a car pulled up outside. His parents and sister said, "That's him right there, that's the car right there." Daniel signaled to him indicating he wanted to talk to him. Filipo threw up the S sign, signifying S.O.S. and waved to Daniel to follow him.
Daniel proceeded to follow Filipo as he drove down the street. Filipo sped up at times and then slowed down as they drove through the neighborhood. At times Daniel followed bumper to bumper and at other times he was close to a hundred yards behind. Daniel called 9-1-1 and gave a description of the car and the license to the dispatcher. On one occasion when they were traveling bumper to bumper Daniel could see that Filipo was talking on his cell phone and overheard him say "Let's blast on these niggers, cuz." Daniel panicked a little and looked around to see if anyone was behind him.
Meanwhile, Maria called Daniel a number of times and when he did not answer the cell phone she became worried. Joe, Maria, Sheila and Faasooso all got in a four-door white Montego car and went to look for Daniel. Joe was driving with Maria in the front passenger seat and Sheila and Faasooso in the back seat. Joe drove around the neighborhood streets as Maria continued to call Daniel's cell phone.
As Joe was driving around looking for Daniel he spotted the Kia driven by Filipo and turned to follow it. When he turned the corner he saw [Petitioner] who was standing between two cars on the left side of the street raise his hands up. Joe told his wife "My God, we are going to get shot." Joe heard the shots and one bullet hit his arm and another hit his chest. He told his wife "I got hit, I got shot." Maria heard several gunshots and one bullet hit the left side of her stomach. Sheila saw [Petitioner] step out from between the cars on the sidewalk. He was wearing a black hoodie. She saw the flash from the muzzle of the gun as he started shooting. Joe told Sheila and Faasooso to get down on the floor and he continued driving until he got back to his home.
Daniel had to slow down because a truck was between him and Filipo and he was now about a block behind Filipo. When he got around the truck he saw Filipo turn. He also saw his parents' car turn down the same street behind Filipo. He sped up because he feared what was going to happen. As he turned onto the street to follow Filipo and his parents he saw appellant [Petitioner] wearing dark clothing "step out from behind the shadows" and fire at least seven or eight shots at his parents' vehicle. [Petitioner] then turned and fired three or four shots at Daniel. Daniel was not hit but two bullets struck his vehicle. He saw a number of people running towards a PT Cruiser before he reversed his vehicle and went back to his parents' house.
Ashley Tofi testified that on the evening of February 16, she and her friend Alicia Tafua went to the store with [Petitioner] and then to Filipo's house in Alicia's PT Cruiser. Alicia was driving. [Petitioner] received a telephone call and Ashley overheard him say "Who's following you? All right. I'll be right there. I am almost there." Alicia pulled the car over to the side of the road when they reached Filipo's house and [Petitioner] got out. Ashley saw Filipo's car drive by followed by a light colored four-door car, and then a third vehicle that looked like a dark colored Tahoe. Ashley remained in the car with Alicia and heard gunshots. As [Petitioner] got back into the car he said "Oh, shit, I dropped my clip, " and picked it up. Ashley told the investigating officers that when [Petitioner] said "clip" she knew he was referring to a gun. Alicia, Ashley, and [Petitioner] then drove to a bar in Orange County where they met up with Filipo.
Later that night, Officer Robert Guerrero, of the Long Beach Police Department, investigated the crime scene outside Filipo's residence. He found a total of 10 nine-millimeter bullet shell casings in the middle of the street.
All police personnel were from the Long Beach Police Department.
At approximately 1:15 a.m. the next morning, Officer Michael Hynes stopped a Kia driven by Filipo, a few blocks north of [Petitioner's] residence. Filipo was detained and Officer Hynes conducted a search of the Kia. From the front passenger seat of the car he recovered a cell phone and a nine-millimeter Ruger magazine loaded with 10 bullets. There was an S.O.S. gang inscription on the phone and a search of the phone uncovered a picture of [Petitioner] holding a firearm.
Officer Fernando Martinez questioned [Petitioner] on the night of the shooting as part of the investigation. [Petitioner] was standing inside the gate of his residence talking on a cell phone. He wore a black sweater and jeans and his hair was braided in cornrows. In executing a search warrant for [Petitioner's] residence, Detective Hector Cardiel recovered a green military ammunition box from the garage. The box contained a nine-millimeter high-capacity magazine for a pistol, a box of 45 automatic ammunition, another box containing 357 Magnum rounds, and a bag containing assorted rounds of rifle and nine-millimeter Luger ammunition. The box also contained cleaning patches, Q-Tips, a toothbrush, a tool used to remove the front cap of a handgun, and a homemade tool with a screw on the end of it, all of which Detective Cardiel explained were used to clean handguns and rifles. Detective Cardiel also recovered a nine-millimeter gun with a fully loaded magazine that was wrapped in a T-shirt and hidden among a container of folded clothes.
Joe was hospitalized for three days and a bullet was removed from his right side. He had numerous surgery scars on his arm, shoulder and chest. Maria was hospitalized for six days and had surgery to remove a bullet from the lower part of her left abdomen.
Officer Robert Gonzalez was the investigating officer assigned to the case and spoke with the victims while they were at the hospital receiving treatment for their injuries. He showed them several photographic lineups (six-packs).
Joe identified [Petitioner] as the person who shot him. He circled [Petitioner's] photograph and wrote "That's the guy who shot at me." Joe also identified [Petitioner] as the shooter at trial. He identified Filipo from the photographic lineup and at trial as the driver of the car that circled his home a number of times on February 16, 2009.
Maria identified [Petitioner] from the photographic lineup shown to her by Officer Gonzalez. She circled [Petitioner's] photograph and wrote "He is the one who shot me and my husband." At trial, she identified [Petitioner] as the shooter, and Filipo as the driver of the car.
Daniel identified [Petitioner] from the photographic lineups shown to him by Officer Gonzalez as the shooter. He circled the photograph of [Petitioner] and wrote "Mikey, aka Tweeze, stepped out from behind the parked vehicle, left side of the street, and aimed, looked, and fired numerous rounds at my parents as they drove up and past him. He then turned towards me and fired a few rounds, striking my vehicle." Daniel circled Filipo's photograph and identified him as the driver of the Kia. He also identified Samana's photograph and wrote "Ross was present in the area of the shooting." At trial, Daniel identified [Petitioner] as the shooter, and later on cross-examination said he was "80 percent" sure it was [Petitioner].
Sheila "appeared to be really uncomfortable" when looking at the photographic lineup conducted by Officer Gonzalez. She did not identify [Petitioner] as the shooter but indicated that she knew him as "Mikey" and wrote "That's Twizz." She said the shooter wore a black sweatshirt, black pants, and a white T-shirt. At trial, she identified [Petitioner] as the shooter.
Officer Gonzalez testified that all calls to the 9-1-1 dispatch are logged and the calls regarding the shooting were recorded at 9:24 p.m., on February 16, 2009. An examination of the telephone log for Filipo's cell phone showed an outgoing call was placed to [Petitioner's] phone around that time. At 9:32 p.m. an outgoing call was made from [Petitioner's] cell phone to Filipo's cell phone.
Troy Ward, a criminalist with the Long Beach Police Department crime lab, testified as a firearms expert. He opined that the shell casings found at the scene of the shooting to have come from either a Browning, Navy Arms, Ruger, or Tanfoglio firearm, and that the Ruger found at [Petitioner's] residence was not the weapon that fired the shell casings. Tests conducted on the shell casings established that at one time they had been in the Ruger magazine found in Filipo's car.
Officer Jonathan Calvert, the prosecution's gang expert, testified that the West Side Pirus had approximately 30 to 40 documented members in Long Beach and associated with the Bloods gang. The area around the Ho-Ching residence was considered a Pirus enclave and Officer Calvert had previously contacted Blood and other Piru families who lived there. Sheila was an admitted member of the Pirus. S.O.S. was comprised of approximately 200 documented members in the Long Beach area and it was associated with the Crips gang. Officer Calvert testified that appellant [Petitioner], whose moniker is "Little Twizz" was a documented self-admitted member of S.O.S. He was heavily tattooed with the gang's logo and name and associated with other S.O.S. members. Filipo, whose gang moniker was "P.K." or "Piru Killer, " also had S.O.S. gang tattoos and admitted to Officer Calvert that he was a member of S.O.S.
In response to a hypothetical question based on the facts of the shootings on February 16, 2009, Officer Calvert opined the crimes were committed to benefit the S.O.S. gang. He based his opinion on "the totality of the circumstances" of the crimes as well as "the known documented affiliations of the suspects as well as the victim." Officer Calvert also testified that the dominance of a gang was illustrated by their ability to instill fear in the community. Witnesses were reluctant to come forward and testify, and in some cases even lied on the witness stand to avoid being labeled a snitch. A gang could find out the identity of such a snitch from communication with the defendants or when actual gang members attended the criminal proceedings. Officer Calvert recalled seeing dozens of S.O.S. gang members at the preliminary hearing and at the trial in this case, including Eni Tautolo whom he described as "an influential shot caller figure" in the S.O.S.
Filipo did not present any evidence on his behalf.
Officer Gabriel Garrido interviewed Daniel at approximately 9:30 p.m. on February 16, 2009. Daniel was unable to identify the shooter and he did not tell Officer Garrido that he overheard Filipo talking on his cell phone as he drove through the neighborhood.
Sheila identified Ross Samana as the shooter when shown a six-pack photographic lineup by Detective Tim Olson on February 17, 2009.
Officer Robert Ryan was advised that a possible suspect was in the rear residence at the shooting location. He detained Samana and recovered a black hooded sweatshirt that was found near the entrance to the front residence. In the late night or early morning hours of February 16, and February 17, 2009, when Officer Armando Manzo contacted Samana he was wearing a white T-shirt and gym shorts.
Detective Bobby Anguiano testified that it was important to isolate witnesses to prevent them from talking to other witnesses and being influenced by what they may be told. The witnesses were isolated when he performed the photographic lineups at the hospital. (Respondent's Lodgment 4, pp. 2-9; People v. Taituave, 2012 WL 1681089, at *1-5) (footnotes renumbered).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The evidence allegedly was insufficient to support Petitioner's conviction because the eyewitness identifications purportedly were "inherently improbable" (Petition, Ground One & Ex. A, ECF Docket No. 1, pp. 5, 16-19);
The Petition incorporates arguments contained in Petitioner's petition for review and California Supreme Court habeas petition, attached to the Petition as Exhibits A and B, respectively. Because the Petition and attached exhibits do not bear consecutive page numbers, the Court uses the ECF pagination.
2. The prosecutor allegedly committed misconduct, by assertedly: (1) eliciting evidence regarding Petitioner's prior arrests; (2) posing a hypothetical question to the gang expert which contained the names of persons involved in the case; and (3) introducing allegedly prejudicial gang evidence in closing argument (Petition, Ground Two & Ex A, ECF Docket No. 1, pp. 5, 20-25);
3. The trial court allegedly abused its discretion and violated due process by denying Petitioner's motion for a new trial alleging prosecutorial misconduct (Petition, Ground Three & Ex. A; ECF Docket No. 1, pp. 6, 26);
4. The trial court allegedly erred during a hearing on Petitioner's "Marsden" motion, by assertedly failing to elicit detailed reasons from Petitioner's counsel for various alleged errors by counsel (Petition, Ground Four, ECF Docket No. 1, p. 6; Petition, Ex. B, ECF Docket No. 1-1, pp. 23-31); and
See People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970) ("Marsden") (California's seminal case on substitution of counsel).
5. Petitioner's trial counsel allegedly rendered ineffective assistance by assertedly: (a) failing to seek suppression of the eyewitness identifications as allegedly suggestive; (b) failing to impeach witnesses with alleged prior inconsistent statements concerning the identity of the shooter; (c) failing to object to allegedly prejudicial gang evidence and to the presence of gang members in the courtroom; (d) failing to investigate the reason police assertedly failed to submit a gunshot residue test; (e) failing to seek a new trial on the ground that the jury assertedly erred in convicting Petitioner of premeditated attempted murder as an aider and abettor, a theory allegedly neither charged nor argued; and (f) committing cumulative error as described above (Petition, Ground Five, ECF Docket No. 1, p. 6; Petition, Ex. B, ECF Docket No. 1-1, pp. 10-11; attached memorandum).
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, 132 S.Ct. 38, 44 (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, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id., 131 S.Ct. at 786 (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., 131 S.Ct. at 786-87 ("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.").
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). 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." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
Furthermore, on habeas review, a federal court will not disturb a conviction for prosecutorial misconduct unless the misconduct had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (citation and internal quotations omitted) ("Brecht").
The Court has read, considered and rejected on the merits all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein.
I. Petitioner's Challenge to the Sufficiency of the Evidence Does Not Merit Habeas Relief.
A. Governing Legal Principles
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). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Jackson v. Virginia 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, 132 S.Ct. at 2064 ("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, 132 S.Ct. 2, 4 (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 [v. Virginia]." 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).
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). The Court has conducted such a review.
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, a 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, 132 S.Ct. at 2064.
B. Discussion
Petitioner alleges that the eyewitness identifications were "improbable, " contending that at various times certain victims either could not identify the shooter or identified someone other than Petitioner as the shooter (Petition, Ex. A, ECF Docket No. 1, pp. 16-19). Petitioner also points to other evidence supposedly undermining the reliability of the identifications, including Joe Ho-Ching's testimony that he only looked at the shooter quickly, Daniel Ho-Ching's testimony that Daniel was only 80 percent sure Petitioner was the shooter and Alicia Tafua's testimony that she had ingested beer and marijuana the evening of the incident (id.; see R.T. 671, 984-85, 1048). The Court of Appeal rejected Petitioner's challenge to the sufficiency of the evidence, observing that: (1) multiple witnesses identified Petitioner as the shooter; (2) the cell phone call logs showed Petitioner and Filipo spoke to each other twice around the time of the shooting; and (3) Tofi testified that immediately after the shooting Petitioner returned to the car and said he had dropped his "clip, " which Tofi understood to mean Petitioner's gun (see Respondent's Lodgment 8, pp. 11-13; People v. Taituave, 2012 WL 1681089, at *6-7).
At trial, Joe Ho-Ching, Maria Ho-Ching, Daniel Ho-Ching and Sheila Ho-Ching all identified Petitioner as the shooter (R.T. 648, 728, 790-91, 958). Joe, Maria and Daniel also identified Petitioner in pre-trial photo lineups (R.T. 650-51, 730-31, 930-31, 1222-26). Daniel testified that he knew Petitioner because Daniel had been a mentor to Petitioner while Daniel was a high school coach (R.T. 959). Ashley Tofi testified that when Petitioner returned to the car after the shooting, he said he had dropped his "clip, " meaning his gun (R.T. 1043).
The probative value of the identifications was for the jury to decide. See United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996) ("The evidence is not rendered insufficient simply because there are discrepancies in the eyewitnesses' descriptions of the robber."); see also Gibbs v. Kemna, 192 F.3d 1173, 1175-76 (8th Cir. 1999), cert. denied, 531 U.S. 846 (2000) (rejecting challenge to sufficiency of evidence based on alleged unreliability of witness identifications; petitioner's arguments went to witnesses' credibility, not the sufficiency of the evidence, and "credibility is for the jury to decide") (citation omitted). The issue of whether witnesses lied or erred in their perceptions or recollections is properly left to the jury. United States v. Zuno-Arce, 44 F.3d 1420, 1423-24 (9th Cir.), cert. denied, 516 U.S. 945 (1995), overruled in part on other grounds, Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 994 (2003); see also United States v. Delgado, 357 F.3d 1061, 1069 (9th Cir. 2004) (on review of the sufficiency of the evidence under the Jackson v. Virginia standard, "questions of witness credibility fall squarely and exclusively within the jury's purview"); Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000) (questions of credibility were for the jury, and prosecution evidence, if believed, sufficed to support conviction). The jury's resolution of the issues concerning the witnesses' credibility is "entitled to near-total deference under [ Jackson v. Virginia ]." Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (citations omitted); see also McDaniel v. Brown, 558 U.S. at 132-33 (ruling Ninth Circuit erroneously relied on alleged inconsistencies in testimony and allegedly unreliable evidence in finding evidence constitutionally insufficient); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution); Santoyo v. Hedpath, 2009 WL 3226516, at *16-17 (C.D. Cal. Oct. 5, 2009) (testimony of eyewitnesses sufficient to support conviction, despite petitioner's claim that the witnesses' identifications were unreliable). Considering the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Petitioner committed the charged crimes. That is all the Constitution requires. See Jackson v. Virginia, 443 U.S. at 317.
Furthermore, the court instructed the jury concerning the evaluation of witnesses' testimony in general, the evaluation of eyewitness testimony in particular and the burden of proving identity based solely on eyewitnesses (R.T. 1825-26, 1832-34; C.T. 274-76, 289-91). The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000). In such circumstances, this Court cannot deem unreasonable the Court of Appeal's determination that the evidence sufficiently supported Petitioner's conviction.
Petitioner also argues that the allegedly inconsistent verdict impugns the sufficiency of the evidence (Petition, Ex. A, ECF Docket No. 1, pp. 18-19). Conceding that the Court of Appeal correctly ruled that the allegedly inconsistent verdict did not require an overturning of the conviction, Petitioner nevertheless argues that the jury "seemed to acknowledge that [Petitioner] was not the shooter" because the jury found the firearm enhancements against Petitioner to be not true (id., p. 18).
"[I]nconsistent verdicts may not be used to demonstrate the insufficiency of the evidence for the count on which the defendant was convicted." United States v. Ares-Garcia, 420 Fed.App'x 707, 708 (9th Cir.), cert. denied, 132 S.Ct. 355 (2011) (citation and footnote omitted); see also United States v. Powell, 469 U.S. 57, 67 (1984) (review of challenge to the sufficiency of the evidence "should be independent of the jury's determination that evidence on another count was insufficient"). "[I]t is well established that inconsistent verdicts may stand, even when a conviction is rationally incompatible with an acquittal, provided there is sufficient evidence to support a guilty verdict." United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012) (citation, internal quotations and brackets omitted); accord People v. Lewis, 25 Cal.4th 610, 655, 106 Cal.Rptr.2d 629, 22 P.3d 392 (2001), cert. denied, 534 U.S. 1045 (2001). As discussed above, the evidence in the present case was sufficient to support the guilty verdict. See People v. Federico, 127 Cal.App.3d 20, 33, 179 Cal.Rptr. 315 (1982) (evidence sufficient to support murder conviction despite negative finding on firearm allegation, which "was a determination more favorable to the defendant than the evidence warranted").
Additionally, the Ninth Circuit specifically has "rejected a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them." United States v. Hughes Aircraft Co., Inc., 20 F.3d 974, 977-78 (9th Cir.), cert. denied, 513 U.S. 987 (1994) (citation and internal quotations omitted). "[I]nconsistent verdicts can just as easily be the result of jury lenity as a determination of the facts." United States v. Valles-Valencia, 823 F.2d 381, 381-82 (9th Cir. 1987) (citation omitted); see also Standefer v. United States, 447 U.S. 10, 25-26 (1980) (upholding conviction of aider and abettor although principal was acquitted); United States v. Dotterweich, 320 U.S. 277, 279 (1943) (deeming "baseless" a claim that a jury's failure to find a corporation guilty precluded the jury from finding the president and general manager guilty on same charge; "Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty... is immaterial. Juries may indulge in precisely such motives or vagaries. [citation]."); Martinez v. Lewis, 2013 WL 5573027, at 8 (C.D. Cal. Oct. 8, 2013) (rejecting claim that evidence was insufficient to support second-degree murder conviction because jury found firearm allegation untrue and evidence purportedly did not show petitioner acted as an aider and abettor; "[t]he jury's finding that the firearm enhancement allegations were not true could be attributed to mistake, compromise or lenity.'") (citation omitted); Brumfield v. Hedgpeth, 2012 WL 4442770, at *10 (C.D. Cal. Mar. 30, 2012), adopted, 2012 WL 4369306 (C.D. Cal. Sept. 23, 2012) ("To the extent that Petitioner is arguing that the jury's verdict that he was guilty of first degree drive-by murder was inconsistent with the jury's finding that he did not personally use a firearm, such a claim does not carry his sufficiency argument.... [T]he finding that the firearm-use allegation was not true could be explained as an exercise of lenity by the jury.") (citations omitted); People v. Miranda, 192 Cal.App.4th 398, 405, 121 Cal.Rptr.3d 231 (2011) (rejecting argument that, because jury found defendant guilty of attempted murder, robbery and assault with a firearm but found not true the personal-use firearm enhancements, the jury must have found that defendant was liable as an aider and abettor and evidence allegedly did not support guilt on that theory; "under the inconsistent verdict doctrine, the not true' finding on the personal use enhancements does not inexorably lead to a finding that defendant was not the direct perpetrator of the substantive offenses").
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence was not contrary to, or 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. 86, 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground One of the Petition.
II. Petitioner's Claims of Prosecutorial Misconduct Do Not Merit Habeas Relief.
Petitioner contends the prosecutor committed misconduct by assertedly: (1) eliciting testimony concerning Petitioner's prior arrests; (2) asking the gang expert a hypothetical question using the proper names of various persons and the specific facts of the case; and (3) introducing allegedly prejudicial gang evidence in closing argument (Petition, Ground Two & Ex A, ECF Docket No. 1, pp. 20-25). The Court of Appeal rejected all of these contentions (Respondent's Lodgment 8, pp. 14-19; see People v. Taituave, 2012 WL 1681089, at *8-11).
Prosecutorial misconduct merits habeas relief only where the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotations omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). The Court must consider the entire proceeding to determine whether the alleged misconduct rendered the trial so unfair as to violate due process. See Sechrest v. Ignacio, 549 F.3d 789, 807-08 (9th Cir. 2008), cert. denied, 558 U.S. 938 (2009). As discussed below, Petitioner's claims of prosecutorial misconduct do not merit habeas relief under these standards.
A. Alleged Eliciting of Testimony Concerning Petitioner's Prior Arrests
On direct examination, the prosecutor asked the gang expert, Officer Calvert, the bases for Calvert's opinion that Petitioner was a member of the Sons of Samoa gang (R.T. 1334). Calvert responded that his opinion was based on "a totality of things, " including "documentation" (R.T. 1334). The prosecutor asked Calvert to "describe some of that documentation" (R.T. 1334). In response, Calvert mentioned "booking sheets" and Petitioner's previous arrests (R.T. 1335-36). When the prosecutor asked Calvert about "documentation" concerning Filipo, Calvert mentioned "booking sheets" (R.T. 1341-42). Filipo's counsel objected, noting that the objectionable response "was something that the witness offered" (R.T. 1342-43). The court said it would allow the prosecutor to tell Calvert to use the words "prior contacts, " not "prior arrests" (R.T. 1343). Thereafter, the prosecutor and the witnesses used the word "contacts" (see R.T. 1343-44, 1531).
Later, Petitioner's counsel moved for a mistrial based on Calvert's references to Petitioner's arrests (R.T. 1359). The court denied the motion (R.T. 1359). Still later, Petitioner's counsel asked the court to give the jury an admonishment regarding the evidence of Petitioner's arrests (R.T. 1390-91). The court instructed the jury that the parties had stipulated that Calvert's references to Petitioner's prior encounters with police "were police contacts and not police arrests" (R.T. 1502-03).
The Court of Appeal rejected Petitioner's claim that the prosecutor committed misconduct by eliciting Calvert's testimony concerning Petitioner's booking sheets and prior arrests, ruling that: (1) Calvert, not the prosecutor, had used the terms "booking sheets" and "arrests"; (2) after the court's ruling, the prosecutor told the court she would speak to Calvert concerning the ruling in order to prevent a recurrence of the allegedly objectionable testimony; and (3) the prosecutor did not refer to Petitioner's arrests in closing argument (Respondent's Lodgment 8, p. 15; see People v. Taituave, 2012 WL 1681089, at *8).
The Court of Appeal's determination was not objectively unreasonable. First, as the Court of Appeal recognized, the prosecutor did not ask Calvert about Petitioner's "arrests, " but simply asked Calvert to describe the "documentation" on which Calvert relied in forming his opinion concerning Petitioner's gang status. Calvert volunteered information concerning Petitioner's "arrests." Second, as the Court of Appeal observed, the objection of Filipo's counsel yielded an instruction to the witness not to mention "arrests, " and neither the witness nor the prosecutor ever referred to Petitioner's "arrests" again. Third, the court instructed the jury that Calvert's references to Petitioner's prior encounters with police "were police contacts and not police arrests." The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. at 226; see also United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (prosecutor's eliciting of testimony that defendant previously had been imprisoned did not render trial unfair, where judge admonished jury to disregard the testimony and testimony "was not so extremely inflammatory and repetitive that it could not be cured by admonition"); cf. Dowling v. United States, 493 U.S. 342, 352-53 (1990) (admission of evidence that defendant was involved in a prior burglary not fundamentally unfair, although defendant was acquitted of charges arising out of prior burglary, where judge gave limiting instruction). For all of these reasons, the Court of Appeal's rejection of this claim was not contrary to, or 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, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.
B. Allegedly Improper Hypothetical
The prosecutor attempted to pose a hypothetical question to Calvert based on the facts of the case, asking for Calvert's opinion regarding whether the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang (R.T. 1355-58). The question identified the victims by name (R.T. 1355-58). The defense objected (R.T. 1358). Calvert did not answer the question (R.T. 1358).
The prosecutor did not use Petitioner's name or Filipo's name in the hypothetical.
At sidebar, the court told the prosecutor that she had erred by using the victims' names in the hypothetical (R.T. 1358). The court told the prosecutor to identify the victims by number ("victim one, victim two, victim three") in a rephrased question (R.T. 1358). Petitioner's counsel moved for a mistrial (R.T. 1358-59). The court denied the motion but sustained the objection (R.T. 1359-60). Before the prosecutor asked the rephrased hypothetical question, the court gave a standard jury instruction concerning the nature and use of the hypothetical question (R.T. 1360). Thereafter, the prosecutor posed a rephrased hypothetical which did not use the names of the victims (R.T. 1361-1364). Calvert opined that "[t]here was no question in [his] mind that [the crime] was committed in furtherance, for the direct benefit for the Sons of Samoa Crip gang" (R.T. 1364).
The court gave CALJIC 2.82:
The Court of Appeal ruled that the allegedly improper hypothetical did not prejudice Petitioner because Calvert did not answer the hypothetical, the court immediately gave an instruction concerning the use of hypothetical questions, and there was overwhelming evidence of Petitioner's guilt (Respondent's Lodgment 8, pp. 15-16; see People v. Taituave, 2012 WL 1681089, at *9).
The Court of Appeal's decision was not unreasonable. Under California law, an expert may opine, in response to a hypothetical question based on the facts of the case, that a criminal defendant committed a crime for the benefit of, at the direction of or in association with a criminal street gang. See People v. Vang, 52 Cal.4th 1038, 1048, 132 Cal.Rptr.3d 373, 262 P.3d 581 (2011); People v. Gonzalez, 38 Cal.4th 932, 945-47 & n.3, 44 Cal.Rptr.3d 237, 135 P.3d 649 (2006), cert. denied, 549 U.S. 1140 (2007). Moreover, Calvert did not answer the assertedly defective question. The court instructed the jury that the questions and statements of counsel were not evidence and that if the court sustained an objection to a question, the jury was not permitted to guess what the answer might have been (R.T. 1819; C.T. 265). The court also instructed the jury concerning the proper use of a hypothetical question (R.T. 1360, 1831; C.T. 287). The Court presumes the jurors followed their instructions. See Weeks v. Angelone, 528 U.S. at 226. Additionally, compelling evidence apart from Calvert's opinion demonstrated that Petitioner committed the crimes for the benefit of, at the direction of or in association with a criminal street gang, including: (1) evidence of Petitioner's gang membership; (2) Petitioner's gang tattoos; (3) the prior vandalisms of the victims' property with S.O.S. graffiti; (4) Joe Ho-Ching's testimony that Petitioner was in the car when Filipo drove past the victims' house shouting; (5) testimony that Filipo drove repeatedly past the victims' house flashing gang signs and yelling gang insults; (6) Filipo's actions in luring the victims into an ambush; and (7) the witnesses' identifications of Petitioner as the shooter (R.T. 633-37, 648, 650-51, 708, 719-21, 730-31, 738, 778-79, 782-86, 790-91, 930-31, 939-40, 943-53, 958, 1222-26, 1333-41, 1531).
For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or 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, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.
C. Alleged Introduction of Improper Gang Evidence in Closing Argument
1. Background
The gang expert, Officer Calvert, testified that Faasooso Tautolo's father, Eni Tautolo, was a "shot caller" for the Eastside S.O.S. gang (R.T. 1333). Calvert said Petitioner was an S.O.S. gang member who had "been in and around other S.O.S. gang members" and was "constantly affiliating" with other S.O.S. members (R.T. 1334).
The prosecutor asked Calvert whether he had noticed any S.O.S. gang members present in court (R.T. 1370). Petitioner's counsel objected on relevance grounds (R.T. 1370). The prosecutor contended the question was relevant to the issue of the ability of the witnesses to testify in the presence of gang members (R.T. 1371). The court overruled the objection (R.T. 1371).
Calvert testified that it was difficult for witnesses to testify in a gang case because of fear of retaliation (R.T. 1372-73). Calvert said he had "come to expect" that witnesses would lie to the police or lie in court in gang cases (R.T. 1372-74). Calvert further testified that he had seen "a couple dozen" S.O.S. gang members present in court during the trial (R.T. 1375). Calvert also said that, commencing with the preliminary hearing, Calvert had seen "probably two dozen" S.O.S. members in the courtroom including two "shot callers, " one of whom assertedly was Eni Tautolo (R.T. 1376). Calvert said that he had seen "a few S.O.S. gang members" at every hearing (R.T. 1276). Calvert said one S.O.S. member, Brandon Deshawn Arnold, had been in present in court (R.T. 1377-79). To demonstrate that S.O.S. allegedly was a "criminal street gang" within the meaning of California Penal Code section 186(b), the prosecutor elicited Calvert's testimony concerning two prior predicate offenses: Arnold's alleged robbery conviction and a conviction of another S.O.S. member (R.T. 1377-78).
Section 186.22(b) provides an enhancement for "any person who is convicted of a felony committed for the benefit of, at the direction 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...." A "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of [certain specified offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." Cal. Penal Code § 186.22(f). A "pattern of criminal gang activity" means, among other things, the commission of two or more specified offenses where the last of the offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. Cal. Penal Code § 186.22(e).
On cross-examination, Calvert testified he had no information suggesting that Petitioner "directly contributed to any type of pressure" on, or otherwise influenced, the witnesses (R.T. 1515-16).
While discussing the evidence of the two predicate acts supporting the gang enhancement during closing argument, the prosecutor told the jury:
... And we heard about Mr. Arnold, the guy that has been in court with us this whole time, about how both of them are S.O.S. members and how both of them committed crimes....
We also know that the defendants did quite a few activities that might help us understand their gang membership... that they have had contacts with other gang members, including the multiple gang members who have been here in court, including Mr. Arnold, who has been convicted of a crime.
(R.T. 1877-78).
In rebuttal, the prosecutor stated that Marie and Joe Ho-Ching "testified in this courtroom and at the preliminary hearing despite the fact that there are multiple members of S.O.S. sitting in court every single time, including today" (R.T. 1963). Petitioner's counsel objected that this statement assertedly misstated the evidence (R.T. 1963). The court instructed the jury that it should determine the facts based on the evidence presented, i.e. the witnesses' testimony and any physical evidence introduced (R.T. 1963-64). The court denied the motion for a mistrial (R.T. 1964).
The next day, after the jury retired to begin deliberations, counsel renewed his motion for a mistrial based on the prosecutor's references to gang members in the courtroom (R.T. 2102-04). The court again denied the motion (R.T. 2105).
Petitioner contends the prosecutor committed misconduct by making statements in closing which were not supported by the evidence, to the effect that "gang member Arnold had been in the audience for the entirety of the trial, [Petitioner and Filipo] had communicated with him [Arnold], and [Petitioner and Filipo] had communicated with other gang members" (Petition, Ex. A, ECF Docket No. 1, p. 23). The Court of Appeal rejected this assertion, ruling that the challenged comments were reasonable interpretations of the evidence, that the prosecutor had not stated that the defendants had had contacts with other gang members during the trial, and that, in any event, the comments were harmless (Respondent's Lodgment 8, pp. 18-19; see People v. Taituave, 2012 WL 1681089, at *10-11).
2. Discussion
To obtain federal habeas relief based on allegedly improper prosecutorial remarks, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) ("Darden") (internal quotations omitted). "In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (citation omitted). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384-85 (1990)); see also Waddington v. Sarausad, 555 U.S. 179, 195 (2009).
The United States Supreme Court recently ruled that particular alleged prosecutorial misconduct in closing argument did not warrant habeas relief under the AEDPA standard of review. Parker v. Matthews, 132 S.Ct. 2148 (2012) ("Parker"). In Parker, the Court of Appeals for the Sixth Circuit had granted habeas relief on a claim that the prosecutor had committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture an "extreme emotional disturbance" defense. Applying the AEDPA standard of review, the United States Supreme Court reversed the Sixth Circuit. The Parker Court observed that, even if the comments had directed the jury's attention to inappropriate considerations, the petitioner had not shown that the comments were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 2155 (quoting Harrington v. Richter, 131 U.S. at 786-87). The Parker Court noted that in Darden the Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker, and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations, " the Sixth Circuit's decision was unwarranted. Parker, 132 S.Ct. at 2155 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In Darden, the prosecutor told the jury that the petitioner was an "animal" whom the prosecutor wished to see "with no face, blown away by a shotgun." See Parker v. Matthews, 132 S.Ct. at 2155 (quoting Darden, 477 U.S. at 180 nn.11 & 12; internal quotations omitted).
The alleged misconduct here is considerably less grave than that at issue in Parker. Officer Calvert's testimony supported the prosecutor's comments that Petitioner had had contacts with other gang members. The prosecutor did not say Petitioner had communicated with Arnold during the trial. No direct evidence in the record reflects that Arnold had been present during the entire trial or that Petitioner had communicated specifically with Arnold. However, it was undisputed that Arnold was an S.O.S. member who was present during at least part of the trial. The prosecutor was entitled to argue the reasonable inference that Petitioner had had contacts with Arnold or other S.O.S. gang members who chose to attend portions of the trial. The suggestion that Arnold had been present during the entire trial may well have been an exaggeration, but such exaggeration did not render Petitioner's trial fundamentally unfair.
Furthermore, the court instructed the jury, both before and after the reception of evidence, that the statements of counsel were not evidence (R.T. 320, 1819; C.T. 265). As mentioned above, the jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000).
Under these circumstances, this Court cannot say that the challenged remarks were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker, 132 S.Ct. at 2155; see United States v. Wilkes, 662 F.3d at 542 (prosecutor's comments not prejudicial where government's evidence was strong and court instructed the jury that the attorneys' comments were not evidence). For the same reasons, the challenged comments could not have had any "substantial and injurious effect or influence in determining the jury's verdict" within the meaning of Brecht. See Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (Brecht applies to claim of prosecutorial misconduct).
For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.
III. Petitioner's Claim that the Trial Court Erred in Denying Petitioner's Motion for a New Trial Based on Alleged Prosecutorial Misconduct Does Not Merit Habeas Relief.
Petitioner contends the trial court abused its discretion and violated Petitioner's constitutional rights by failing to grant Petitioner's motion for a new trial based on alleged prosecutorial misconduct (Petition, Ex. A, ECF Docket No. 1, p. 26). The Court of Appeal rejected this contention, ruling that its rejection of Petitioner's claim of alleged prosecutorial misconduct "resolve[d] the issue" (Respondent's Lodgment 8, p. 20; see People v. Taituave, 2012 WL 1681089, at *11).
For the reasons discussed in Section II above, the Court of Appeal's determination was not unreasonable. Additionally, to the extent Petitioner alleges the trial court's ruling violated state law, habeas relief is unavailable. See Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review). Accordingly, Petitioner is not entitled to habeas relief on this claim.
IV. The Trial Court's Handling of Petitioner's Marsden Motion Does Not Merit Habeas Relief.
A. Background
On the date set for sentencing, Petitioner's appointed counsel requested a further continuance of the sentencing hearing (Petition, Ex. I, ECF Docket No. 1-5, p. 16). When the court asked Petitioner if Petitioner understood that Petitioner would need to waive time, Petitioner said: "I would like to address the court, Your Honor." (id., p. 17). The court said Petitioner should talk to his attorney (id.). Petitioner responded: "That's the problem, your honor. I want to file ineffective assistance. He didn't represent me correctly." (id.).
At a "Marsden" hearing out of the presence of the prosecutor, Petitioner told the court:
... The whole time we been in trial, me and my attorney been feuding. We didn't see contact [sic], during the whole time I been in trial. I would just like to file ineffective assistance.
(id., p. 18).
The court asked if Petitioner wished to substitute counsel for sentencing purposes (id., p. 19). Petitioner said: "No, I was asking if I could get a fair retrial." (id.). The court explained that "for that to happen" Petitioner would need to raise his claim of alleged ineffective assistance of counsel on appeal, and asked Petitioner if Petitioner wanted a new attorney for sentencing purposes (id.). Petitioner said, "Yes." (id.). The following occurred:
The Court: Okay. Then you have to specify to the court why the court should grant you a substitution of an attorney at this point.
Defendant Taituave: Me and my attorney just been arguing the whole time during trial, so....
The Court: You have to be more specific because you -
Defendant Taituave: I don't feel like he did his job.
The Court: That's a general statement. When you say you don't believe he did his job, you have to be more specific as to why you believe he didn't do his job.
Defendant Taituave: He didn't get into details. I went through the police report myself, and he missed out things that should have been said on record during trial, which wasn't said at all. They didn't get brought up at all during trial.
The Court: For example?
Defendant Taituave: For example, the statements that the victims had made, the witnesses, they made inconsistent statements, saying that I wasn't the shooter, that the person that they seen shoot wore a hoodie, but during trial they testified that they said that I was the shooter. And he didn't bring any of that up.
The Court: Actually, your attorney must have, because as you to [sic], you were not found to be the shooter.
Defendant Taituave: Excuse me?
The Court: You were not found to be the shooter. You are Mr. Taituave, right?
Defendant Taituave: Yes.
The Court: If you look at the verdict forms, as to whether or not you personally fired a weapon, you personally caused great bodily injury as a result of you personally firing a weapon, all of that was found not to be true.
Defendant Taituave: Correct.
The Court: So he must have done his job because otherwise the jury would have came back, right? [sic]
Defendant Taituave: Well, I got found guilty for attempted murders. How is that possible?
The Court: That's a different issue. You just stated one of the reasons you are upset about your attorney is because you don't believe he has demonstrated conflicting statements of witnesses about who the shooter was.
Defendant Taituave: Right.
The Court: I just told you that the jury found you - the allegation that you were personally involved in shooting is not true.
Defendant Taituave: Well, I believe that he didn't do his job.
The Court: Well, why don't you be more specific. You made a specific point about you believe [Petitioner's counsel] didn't do his job in demonstrating witness statement [sic] about who was the shooter.
Hold on. Only one person can speak at a time.
That was one example. Give me another example where you believe [Petitioner's counsel] didn't do his job.
Defendant Taituave: Just the whole time we been through the trial, we just been arguing about - he wasn't really - I was trying to file motions to sever my case and to suppress my identification, because it was - because it was - it was subjective in nature.
The Court: Okay.
Defendant Taituave: But the police report -
The Court: You mean suggestive in nature?
Defendant Taituave: Right.
The Court: Any other examples you believe [Petitioner's counsel] didn't do his job?
Defendant Taituave: I don't know how to word it in the court terminology.
The Court: You could use layperson's terminology. See, in order for you to get a new attorney, you have to be specific about what your complaint is about [Petitioner's counsel].
Defendant Taituave: I feel I didn't get a fair trial. At all.
The Court: You have to be specific, when you say you didn't believe you had a fair trial.
Defendant Taituave: I wasn't represented correctly like how I should have been represented.
The Court: That's why I am asking you to give me examples of how that was not done. You said that you don't believe [Petitioner's counsel] examined witnesses about inconsistencies about who was the shooter.
Defendant Taituave: Correct.
The Court: Talked about [Petitioner's counsel] not filing motions, including motion to sever, you believe.
Defendant Taituave: Right.
The Court: What other specific examples do you have?
Defendant Taituave: Well, they said that there was gang members in the audience. That had nothing to do with me being any part of the shooting. We was trying to figure out who shot these people, not about who was in the audience. I believe I got found guilty just because of that.
The Court: Okay. Well, that [Petitioner's counsel] had absolutely no control over who was in the audience.
Defendant Taituave: He was supposed to put that on record, that at least that wasn't supposed to be brought up to the juror's [sic] attention, that's what the jurors got in their head saying that, believing that there is gang members in the audience, so they basically, based off of that, they found me guilty on that.
The Court: Well, we don't know that. But the fact of the matter is, that whether or not there were audience members who are gang members, that goes to the issue of witnesses' demeanor when they were testifying in this case.
Anything else?
Defendant Taituave: No.
(id., pp. 19-23).
The Court then asked Petitioner's counsel whether it was counsel's tactical decision not to file certain motions (id., pp. 23-24). Counsel replied: "Yes, your honor." (id., p. 24). Counsel continued:
As far as arguments, I never had a problem with my client, at least in my personal opinion. I haven't had any personal problems with my client as far as arguments are concerned.
And as far as gang members in the audience, and that type of stuff, I moved for a mistrial when that issue was brought up in [the prosecutor's] rebuttal, and I tried to keep it out during [the prosecutor's] case in chief as well, under the state of mind issue that we took up with the court.
(id., pp. 24-25).
The court asked Petitioner: "Anything else, Mr. Taituave?" (id., p. 25). Petitioner replied: "No." (id.).
The court denied the motion for substitution of counsel (id.).
B. Discussion
Petitioner contends the trial court erred at the Marsden hearing by failing to elicit "detailed reason[s]" for his counsel's failure to seek a new trial based on alleged ineffective assistance of counsel, including counsel's alleged failure to: (1) challenge purportedly suggestive identifications; (2) impeach prosecution witnesses to show their asserted inconsistent statements; and (3) challenge the introduction of assertedly prejudicial gang evidence (Petition, Ex. B, ECF Docket No. 1-1, pp. 23-31). Petitioner raised this claim in his habeas corpus petition filed in the California Supreme Court, which that court denied summarily (see Respondent's Lodgments 17, 18). Therefore, this 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 [the United States Supreme] Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
An indigent defendant is not entitled to appointed counsel of his or her choice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) ("the right to counsel of choice does not extend to defendants who require counsel to be appointed for them") (citations omitted); accord Hendricks v. Zenon, 993 F.2d 664, 671 (9th Cir. 1993). The Sixth Amendment does not guarantee a "meaningful relationship" with counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983); Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007), cert. denied, 555 U.S. 908 (2008). However, "forcing a defendant to go to trial with an attorney with whom he has an irreconcilable conflict amounts to a constructive denial of the Sixth Amendment right to counsel." Id. at 886 (citation omitted). "An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is a complete breakdown in communication between the attorney and client, and the breakdown prevents effective assistance of counsel." Id .; see also Schell v. Witek, 218 F.3d 1017, 1024-26 (9th Cir. 2000) (en banc).
To determine whether a conflict rises to the level of "irreconcilable, " a court may look to three factors: (1) the timeliness of the motion for substitution of counsel; (2) the adequacy of the inquiry by the trial court; and (3) the extent of the conflict. Stenson v. Lambert, 504 F.3d at 886 (citation omitted); United States v. Franklin, 321 F.3d 1231, 1237-39 & n.2 (9th Cir.), cert. denied, 540 U.S. 858 (2003); Schell v. Witek, 218 F.3d at 1024-25; Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983) (procedure "substantially parallels" California Marsden rule). "Disagreements over strategical or tactical decisions do not rise to level of a complete breakdown in communication." Stenson v. Lambert, 504 F.3d at 886; see United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987) ("appointed counsel, and not his client, is in charge of the choice of trial tactics and the theory of defense").
Here, Petitioner made his Marsden motion on the date set for sentencing. The trial court did not deny the motion on the ground of untimeliness, however, and Respondent does not contend the motion was untimely. Petitioner argues that the trial court erred in failing to conduct an adequate inquiry into counsel's reasons for certain actions.
A trial court's inquiry regarding counsel's performance on a motion to substitute counsel should be "such necessary inquiry as might ease the defendant's dissatisfaction, distrust, and concern." Stenson v. Lambert, 504 F.3d at 886 (citation omitted). "It also should provide a "sufficient basis for reaching an informed decision regarding whether to appoint new counsel." Id . (citation, internal brackets and quotations omitted). Here, confronted with Petitioner's vague expressions of dissatisfaction that counsel had not "done his job, " had not represented Petitioner "correctly, " and had not produced for Petitioner a "fair trial, " the trial court patiently and repeatedly probed for more specific information. When Petitioner complained that his attorney allegedly did not "bring... up" the witnesses' inconsistent identifications of the shooter, the court reminded Petitioner that the jury found the firearm allegations untrue. When Petitioner complained that counsel allegedly failed to exclude evidence that gang members were in the audience at trial, the court advised Petitioner that the presence of gang members at trial had been relevant. The court also listened to Petitioner's complaints that counsel did not move to sever or move to suppress identifications.
The court then made inquiry of counsel, eliciting counsel's response that the decision not to file the motions had been tactical and counsel's representation that he had not had any personal problems with Petitioner. Finally, when the court asked Petitioner if he had anything else to say, Petitioner replied: "No." Although Petitioner now appears to contend the court should have asked counsel to describe counsel's specific tactical reasons for deciding not to file the motions, the failure to obtain more specific information regarding counsel's tactical choices did not render the court incapable of making an "informed decision" concerning the alleged conflict. Even without further information, the court's inquiry was adequate to permit the court to reach an informed decision concerning the nature and extent of conflicts Petitioner had alleged. See United States v. Reyes-Bosque, 596 F.3d 1017, 1033-34 (9th Cir.), cert. denied, 131 S.Ct. 249 (2010) and 131 S.Ct. 898 (2011) ("brief, open-ended inquiry" adequate where there were no signs of antagonism or serious breakdown, and inquiry showed it was obvious that defendant was simply unhappy with counsel's performance and the fact that defendant had been convicted); United States v. Comans, 425 Fed.App'x 611, 612 (9th Cir. 2011) (deeming inquiry adequate where trial court fully explored the conflict over defense strategy and on appeal defendant did not indicate what information the court lacked in making its decision); United States v. Cassel, 408 F.3d 622, 637 (9th Cir. 2005) (inquiry adequate where court conducted extended conversation with defendant, indicated the court was willing to take defendant seriously, and explained to defendant why attorney's objection was appropriate).
To show a "complete breakdown in communication between the attorney and client" sufficient to require substitution of counsel, Petitioner must show "an extensive, irreconcilable conflict" between Petitioner and his counsel which led to a "significant breakdown in communication that substantially interfered with the attorney client relationship." United States v. Mendez-Sanchez, 563 F.3d 935, 943 (9th Cir.), cert. denied, 558 U.S. 900 (2009) (citations and internal quotations omitted). The record shows no such conflict. Petitioner did not allege any lack of communication between Petitioner and his attorney. Although Petitioner complained that he and counsel had been arguing, counsel represented that there were no "personal problems" between the two. The trial record belied Petitioner's complaints that counsel had failed to "bring out" witnesses' inconsistent identification testimony and that counsel had failed to seek exclusion of evidence that the audience included gang members. It seems evident that Petitioner's real dissatisfaction stemmed from disappointment that he had been convicted rather than from any specific alleged failings of his attorney. See id. at 943-44 (no irreconcilable conflict where petitioner's lawyers told him what he did not want to hear and the judge told him the same thing, it was unclear what defendant believed could have been done differently, and counsel demonstrated no animosity toward defendant). Petitioner's statements at the hearing suggest that "[t]he only genuine [attorney-client] conflict [was] with respect to trial strategy." United States v. Corona-Garcia, 210 F.3d 973, 977 (9th Cir.), cert. denied, 531 U.S. 898 (2000). Counsel's tactical decisions were "clearly within the realm of powers committed to the discretion of defense counsel." Id. at 977 n.2. "[T]his type of dispute is not a sufficient conflict to warrant substitution of counsel." United States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003); see also United States v. Reyes-Bosque, 596 F.3d at 1034 ("litigation tactics are decisions generally left to defense counsel and, without more, may not provide a sufficient basis for establishing conflict") (citation, internal brackets and quotations omitted).
For all of these reasons, the California Supreme Court's rejection of this claim was not contrary to, or 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. 86, 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on this claim.
V. Petitioner's Claims of Ineffective Assistance of Counsel Do Not Merit Habeas Relief.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight...." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S.Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S.Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id., 131 S.Ct. at 788.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id., 131 S.Ct. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "reasonably likely'" that the result would have been different. Id., 131 S.Ct. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id., 131 S.Ct. at 792.
Petitioner raised his claims of ineffective assistance of counsel in his habeas corpus petition filed in the California Supreme Court, which that court denied summarily (see Respondent's Lodgments 18, 19). Therefore, this 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 [the United States Supreme] Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011).
Petitioner also raised a claim of ineffective assistance of counsel at sentencing in his Superior Court petition (see Respondent's Lodgment 13, p. 3, attachment), but did not assert in that court any of his claims of ineffective assistance raised here. The Court of Appeal denied the claims of ineffective assistance raised in the present Petition summarily (see Respondent's Lodgments 15, 16).
B. Failure to Seek Suppression of Eyewitness Identifications
Petitioner contends counsel ineffectively failed to make a pretrial motion to suppress the allegedly suggestive identifications of Petitioner as the shooter made by Sheila, Daniel, Maria and Joe Ho-Ching (Petition, Ex. B, ECF Docket No. 1-1, pp. 31-35; Declaration of Petitioner attached thereto, ECF Docket No. 1-2, p. 4-5).
Evidence derived from a suggestive pretrial identification procedure may be inadmissible if the challenged procedure was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, 390 U.S. 377, 384 (1968); see also Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 198 (1972); People v. Gordon, 50 Cal.3d 1223, 1242-43, 270 Cal.Rptr. 451, 792 P.2d 251 (1990), cert. denied, 499 U.S. 913 (1991), overruled on other grounds, People v. Edwards, 54 Cal.3d 787, 835, 1 Cal.Rptr.2d 696, 819 P.2d 436 (1991), cert. denied, 506 U.S. 841 (1992). However, an identification following a suggestive identification procedure does not violate Due Process if the identification is reliable under the totality of the circumstances. See Manson v. Brathwaite, 432 U.S. at 111-14 (setting forth factors to be considered in determining reliability of suggestive identification); United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991), cert. denied, 506 U.S. 836 (1992); People v. Ochoa, 19 Cal.4th 353, 412, 79 Cal.Rptr.2d 408, 966 P.2d 442 (1998), cert. denied, 528 U.S. 862 (1999). The ultimate issue is whether the identification procedure was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. at 384; see also People v. Thomas, 54 Cal.4th 908, 931, 144 Cal.Rptr.3d 366, 281 P.3d 361 (2012), cert. denied, 133 S.Ct. 863 (2013).
Petitioner contends that the victims initially told police that the victims either could not identify the shooter or that Samana was the shooter (Petition, Ex. B, ECF Docket No. 1-1, p. 32). According to Petitioner, the witnesses subsequently identified Petitioner as the shooter only after Filipo purportedly told police that Petitioner was the shooter (id., pp. 32-33). Petitioner faults counsel for failing to seek suppression of the identifications under Simmons v. United States, supra, and Manson v. Brathwaite, supra (Petition, Ex. B, ECF Docket No. 1-1, pp. 32-34).
Petitioner does not contend that the witnesses' identifications of Petitioner as the shooter were the product of suggestive police procedures. After Petitioner's trial, the United States Supreme Court ruled that, where the suggestiveness of an identification procedure is not the result of "improper law enforcement activity, " "it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identifications and the requirement that guilt be proved beyond a reasonable doubt." Perry v. New Hampshire, 132 S.Ct. 716, 721 (2012). The high court explained that cases such as Simmons v. United States and Manson v. Brathwaite concerned suggestive identifications "tainted by police arrangement, " and adopted a "judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure." Id. at 724. "The due process check for reliability, [Manson v.] Brathwaite made plain, comes into play only after the defendant established improper police conduct." Id.
In light of Perry v. New Hampshire, even assuming arguendo that the trial court would have granted a motion to suppress in the absence of police misconduct, Strickland prejudice would not exist. Under Strickland, "[a] defendant has no entitlement to the luck of a lawless decisionmaker...." Strickland, 466 U.S. at 695. The Supreme Court's decision in Lockhart v. Fretwell, 506 U.S. 364 (1993) ("Lockhart") illustrates this precept. In Lockhart, the petitioner alleged that his counsel ineffectively had failed to make an objection at sentencing which, under then-existing state law, would have been successful. Id. at 367. The state court of appeals subsequently overruled the precedent upon which the sentencing court had relied. Id. at 368. The Supreme Court explained that the test for Strickland prejudice does not focus solely on whether the outcome of the proceeding would have been different "without attention to whether the result of the proceeding was fundamentally unfair or unreliable...." Id. at 369 (footnote omitted). "To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Id . (citation omitted); see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (under Lockhart, "the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential windfall' to the defendant rather than the legitimate prejudice' contemplated by our opinion in Strickland "). The Lockhart Court deemed the result of the proceeding in that case (a witness' spontaneous identification of the suspect) to have been "neither unfair nor unreliable" in light of the intervening case law. Lockhart, 506 U.S. at 371.
Accordingly, although at the time of trial the Supreme Court had not yet established the principle that improper police conduct was a sine qua non of a claim of unconstitutionally suggestive identification, in light of Perry v. New Hampshire, any alleged ineffectiveness of counsel in failing to move to suppress the identifications cannot have prejudiced Petitioner within the meaning of Strickland. See Lockhart, 506 U.S. at 369.
Furthermore, and in any event, Petitioner has not shown that any of the identification procedures were impermissibly suggestive. For this reason as well, Petitioner has shown neither counsel's ineffectiveness in failing to move to suppress nor any resulting prejudice. See United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986) ("If the court finds that the challenged procedure was not impermissibly suggestive, the inquiry ends."); People v. Virgil, 51 Cal.4th 1210, 1256, 126 Cal.Rptr.3d 465, 253 P.3d 553 (2011), cert. denied, 132 S.Ct. 1636 (2012) (where defendant did not contend witness' identification was unduly suggestive, but simply argued inconsistencies in her statements to police and at trial showed identification was unreliable, "the accuracy of [witness'] identification was a question for the jury."). People v. Alexander, 49 Cal.4th 846, 902, 113 Cal.Rptr.3d 190, 235 P.3d 873 (2010), cert. denied, 131 S.Ct. 2111 (2011) ("Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.") (citation and internal quotations omitted). In such circumstances, counsel reasonably could have concluded that the court would deny any suppression motion and would permit the jury to assess the persuasiveness of the identifications. See Watkins v. Sowders, 449 U.S. 341, 347 (1981) ("the proper evaluation of [identification] evidence under the instructions of the trial judge is the very task our system must assume juries can perform."); Manson v. Brathwaite, 432 U.S. at 116 ("Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."); People v. Arias, 13 Cal.4th 92, 170, 51 Cal.Rptr.2d 770, 913 P.2d 980 (1996), cert. denied, 520 U.S. 1251 (1997) (same). Hence, Petitioner has shown neither counsel's ineffectiveness in failing to file a motion to suppress nor any resulting prejudice. See Dunson v. Lopez, 428 Fed.App'x 692, 694 (9th Cir.), cert. denied, 132 S.Ct. 209 (2011) ("Because the line-up was not impermissibly suggestive, Dunson cannot show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'") (quoting Strickland, 466 U.S. at 694).
For the foregoing reasons, Petitioner is not entitled to habeas relief on this claim.
C. Asserted Failure to Impeach Witnesses with Alleged Prior Inconsistent Statements Concerning the Identity of the Shooter
Petitioner contends counsel failed to impeach prosecution witnesses with prior inconsistent statements identifying the shooter and failed to "raise the same in a motion for a new trial" (Petition, Ex. B, ECF Docket No. 1-1, p. 35). Counsel did present evidence of the witnesses' identifications of someone other than Petitioner as the shooter, however, and the jury found the firearm allegations alleged against Petitioner to be not true (see, e.g., R.T. 675-76, 742-49, 798-808). Petitioner has shown neither counsel's ineffectiveness in this regard nor any resulting prejudice.
D. Failure to Object to Allegedly Prejudicial Gang Evidence
Petitioner faults counsel for allegedly failing to object to "gang evidence and gang presence in the courtroom" which allegedly "frighten[ed" the jury (Petition, Ex. B, ECF Docket No. 1-1, p. 17). Gang evidence generally was relevant to the issues of motive and identity. See People v. Williams, 16 Cal.4th 153, 194, 66 Cal.Rptr.2d 123, 940 P.2d 710 (1997), cert. denied, 522 U.S. 1150 (1998) (motive and identity); People v. Sanchez, 232 Cal.App.4th 197, 221, 181 Cal.Rptr.3d 360 (2014) (gang expert's testimony relevant to issues of motive and witness credibility, and relevant to gang enhancement allegations); People v. Samaniego, 172 Cal.App.4th 1148, 1168, 91 Cal.Rptr.3d 874 (2009) (where defense sought to impeach prosecution witnesses with contradictions between their trial testimony and less favorable prior statements, gang evidence "was relevant to provide an explanation for the less favorable, prior statements"). Petitioner offers no reason why counsel should have objected to the "gang evidence" in general. Petitioner's conclusory allegations do not merit habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations unsupported by a statement of specific facts do not warrant habeas relief).
Moreover, Petitioner's counsel did object to the evidence concerning gang culture and alleged gang intimidation both before trial and during Calvert's testimony (R.T. 602-04, 1293). Prior to trial, the court excluded evidence of general gang threats but deemed admissible any evidence of specific threats and the expert's testimony concerning gang intimidation (R.T. 607). During Calvert's testimony, the court deemed expert testimony concerning gang intimidation to be relevant, noting the evidence that Faasooso Tautolo's father allegedly came to the victims' house on the day of the preliminary hearing and attempted to deter witnesses from testifying (R.T. 1301, 1303-04). However, the court granted counsel's request for a limiting instruction, which the court gave twice (R.T. 1296, 1305-06, 1383, 1823).
Prior to Calvert's testimony concerning gang intimidation, the court instructed the jury that the court had received that testimony not with respect to the truth of the matter but rather with respect to the state of mind of the witnesses (R.T. 1383). In final instructions, the court instructed the jury that Officer Calvert's testimony concerning how witnesses' testimony might be affected by gang culture "was admitted for the purpose of showing the state of mind of the witnesses, " and was "not offered for the truth of the matter" (R.T. 1823). The court also instructed the jury that evidence admitted for a limited purpose could not be considered for any purpose other than the purpose for which the evidence was admitted (R.T. 1823; C.T. 270).
Counsel also objected, unsuccessfully, to Calvert's testimony concerning gang intimidation (R.T. 1370-71). However, counsel objected successfully to the form of the hypothetical question posed to Calvert, and to Calvert's testimony that the defendants were able to communicate outside the jail (R.T. 1358-59, 1375). The court struck such testimony (id.).
Petitioner contends counsel should have objected to the photograph of Petitioner holding a gun found on Filipo's cell phone (Petition, Ex. B, ECF Docket No. 1-1, p. 41). Petitioner asserts that the photograph purportedly was the product of an "illegal search" of a cell phone and that the evidence allegedly did not show when the photograph was taken (id.).
At trial, Long Beach Police Officer Michael Hynes testified that, following the stop of the Kia and the detention of Filipo on February 16, 2009, Hynes searched the Kia and recovered a magazine and a cell phone (R.T. 1022-25, 1035). Hynes searched the phone and discovered wallpaper bearing a gang symbol and a photograph of Petitioner holding a firearm (R.T. 1027-28, 1032-33). Counsel was not constitutionally ineffective for failing to object to the photograph.
First, counsel reasonably could have believed, at the time of Petitioner's trial, that there was no viable legal basis for such an objection. It was not until 2014 that the United States Supreme Court held, as a matter of first impression, that police generally must secure a warrant before conducting a search of the contents of a cell phone. See Riley v. California, 134 S.Ct. 2473 (2014). "Strickland does not require attorneys to make arguments based on cases that have not yet been decided." United States v. Zamudio, ___ F.3d ___, 2015 WL 162855, at *4 (9th Cir. Jan. 14, 2015); see Clark v. Arnold, 769 F.3d 711, 727 (9th Cir. 2014) ("we do not expect counsel to be prescient about the direction the law will take") (citations, internal quotations and brackets omitted). Moreover, "evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Davis v. United States, 131 S.Ct. 2419, 2429 (2011).
Second, counsel reasonably could have decided that any challenge to the search also would be unavailing because Petitioner lacked standing to challenge the search of Filipo's cell phone. "Fourth Amendment rights are personal rights which... may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174 (1969); see United States v. Padilla, 508 U.S. 77, 81-82 (1993) (rejecting "co-conspirator exception" to requirement that individual must have reasonable expectation of privacy in the property searched and the items seized); United States v. Padilla, 111 F.3d 685, 687 (9th Cir. 1997) ("Mere membership or participation in a conspiracy does not establish standing for purposes of the Fourth Amendment.") (on remand from United States Supreme Court in United States v. Padilla, 508 U.S. 77 (1993)).
Third, even if there purportedly was no evidence to show the date the photograph was taken, counsel reasonably could have decided that any such alleged omission went only to the weight, not the admissibility of the evidence. See People v. Crooms, 66 Cal.App.2d 491, 496, 152 P.2d 533 (1944) ("whether the objects and scenes shown in the photographs in evidence were the same on the date the pictures were taken... is... a question directed to the weight rather than to the admissibility of the evidence.").
Fourth, in light of the other evidence showing that witnesses identified Petitioner as the shooter and that when Petitioner entered Alicia's car after the shooting he remarked that he had had dropped his "clip, " Petitioner has not shown a reasonable probability of a different result had counsel successfully objected to admission of the photograph showing Petitioner with a firearm.
With respect to the alleged "gang presence" in the courtroom, Petitioner does not allege what counsel could have done to improve this situation from the standpoint of the defense. While it appears the court did expel two members of the audience, Petitioner does not allege any facts showing that exclusion of other audience members was warranted. See People v. Cummings, 4 Cal.4th 1233, 1298-99, 18 Cal.Rptr.2d 796, 850 P.2d 1 (1993), cert. denied, 511 U.S. 1046 (1994) (under the First Amendment, court may not exclude members of the public from courtroom in the absence of "specific on-the-record findings" demonstrating such exclusion is "essential to preserve higher values and is narrowly tailored to serve that interest.") (citation and internal quotations omitted). Therefore, Petitioner has not shown that counsel's failure to object to the "gang presence" in the courtroom was either unreasonable or prejudicial.
Prior to opening statements, the court ordered Eni Tautolo excluded from the courtroom based on the prosecutor's representation that Eni Tautolo had attempted to prevent his daughter, Faasooso Tautolo, from testifying (R.T. 656-58; C.T. 240). Later, the court ordered Matthew Tautolo removed from the courtroom for making gestures and laughing during the proceedings, and the court directed that Matthew Tautolo not be permitted to reenter the courthouse until the conclusion of the case (R.T. 960; C.T. 247).
E. Alleged Failure to Investigate the Failure of Police to Submit a Gunshot Residue Test
At trial, the jury heard following stipulation:
G.S.R., also known as gunshot residue testing, was conducted on Defendant Mike Taituave on February 17, 2009 at [address], between 1 a.m. and 2 a.m.
G.S.R. is a residue discharged from a firearm and can determine whether a firearm recently was discharged by a shooter. The G.S.R. in this case was not submitted for testing.
(R.T. 1814).
In closing, the prosecutor suggested that, while the G.S.R. results "might be nice to have, " Petitioner assertedly could have washed his hands at the bar after the shooting (R.T. 1865). Petitioner's counsel argued that a contrary inference was reasonable (R.T. 1953).
Petitioner now claims counsel erred in failing to interview and/or subpoena the person who conducted the G.S.R. test to determine why the sample obtained from Petitioner was not submitted for testing, an alleged omission which Petitioner deems "highly-suspicious" (Petition, Ex. B, ECF Docket No. 1-1, pp. 43-44). Petitioner contends "such physical evidence was absolutely crucial, to prove Petitioner's innocence" (id., p. 44).
Petitioner's counsel reasonably could have determined that further probing into the G.S.R. test would have been unduly risky to the defense. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 789-90 (2011) (counsel's decision not to call blood experts reasonable, where proposed evidence "carried its own serious risks" of demonstrating falsity of petitioner's account of the crime); Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) (counsel made reasonable strategic decision not to test blood found at crime scene for fear the test results might inculpate petitioner); Mack v. Sisto, 2012 WL 3018205, at *13 (C.D. Cal. May 9, 2012), adopted, 2012 WL 3018159 (C.D. Cal. July 23, 2012) (counsel reasonably decided that performing blood and fingerprint tests on knife found at crime scene would be "too risky" "since petitioner's fingerprints or DNA might be found").
Moreover, Petitioner provides no information concerning what, if anything, inquiry into the gunshot residue testing would have shown, and hence has not shown a reasonable probability of a different result had counsel made the inquiry Petitioner suggests. Petitioner has proven neither counsel's ineffectiveness nor any resulting prejudice.
F. Failure to Seek a New Trial on the Ground That the Jury Allegedly Improperly Found Petitioner Guilty of Premeditated Attempted Murder as an Aider and Abettor
During the conference concerning jury instructions, the court indicated its intent to give an aiding and abetting instruction (R.T. 1580). Petitioner's counsel did not object. Petitioner faults counsel for failing to seek a new trial on the ground that the jury allegedly erroneously convicted Petitioner of premeditated attempted murder as an aider and abettor, a theory Petitioner contends the prosecution neither charged nor argued (Petition, Ex. B., ECF Docket No. 1-1, pp. 47-50). Petitioner also appears to contend that counsel should have challenged the sufficiency of the evidence to support his conviction on a theory of aiding and abetting ( Id., pp. 49-50).
All parties and the court agreed that the court need not give an instruction concerning the "natural and probable consequences" theory of aiding and abetting (R.T. 1580).
Petitioner's counsel did file a motion for a new trial contending that the verdicts were inconsistent (C.T. 27). At the hearing on the motion, counsel argued, unsuccessfully, that the verdicts were inconsistent and that there was no evidence to suggest Petitioner was an aider and abettor of the shootings (R.T. 2706-07) (emphasis added). The court properly rejected this challenge to the sufficiency of the evidence. Trial evidence included evidence that Petitioner was in the car when Filipo drove by the victims' house shouting, as well as evidence of cell phone calls between Petitioner's phone and Filipo's phone on the night of the incident). Under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 317 (1979), a rational juror could have found from the trial evidence that while another person may have been the shooter, Petitioner aided and abetted the shooting.
Counsel stated: "Your honor, there was no evidence to suggest that my client was an aider and abettor by way of defense or by way of prosecution. Either he did the shooting or he didn't do the shooting" (R.T. 2707). Counsel argued the aiding and abetting instruction concerned Filipo, not Petitioner (R.T. 2707).
In California, an aider and abettor "is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." People v. Prettyman, 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (1996) (citation and internal quotations omitted).
To the extent Petitioner contends that counsel should have argued Petitioner supposedly lacked notice that the prosecution purportedly was pursuing an aiding and abetting theory, any such contention fails. "Under California's practice of short-form pleading, an instrument charging a defendant as a principal is deemed to charge him as an aider and abettor as well." People v. Quiroz, 215 Cal.App.4th 65, 70, 155 Cal.Rptr.3d 200 (2013); see Cal. Penal Code § 971 ("The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.") (emphasis added). Under California law, "[t]his notice as a principal is sufficient to support a conviction as an aider and abettor... without the accusatory pleading reciting the aiding and abetting theory." Id . (citations and internal quotations omitted); see also United States v. Garcia, 400 F.3d 816, 820 (9th Cir.), cert. denied, 546 U.S. 1080 (2005) ("We have... held a number of times in different contexts that aiding and abetting is embedded in every federal indictment for a substantive offense.") (citations omitted); People v. Cook, 91 Cal.App.4th 910, 921, 111 Cal.Rptr.3d 204 (2001) (In a case where a defendant is charged with murder and conspiracy to commit murder, the charge of conspiracy serves to give a defendant actual notice that he is subject to accomplice liability for murder.").
Furthermore, in California, a criminal defendant can receive sufficient notice of the prosecution's theory when the prosecution requests instructions on that theory during a jury instruction conference. See People v. Gurule, 28 Cal.4th 557, 629-30, 123 Cal.Rptr.2d 345, 51 P.3d 224 (2002), cert. denied, 538 U.S. 964 (2003).
Petitioner's reliance on Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989) ("Sheppard"), is unavailing. Sheppard held that the prosecutor "ambushed" the defense by requesting a felony murder instruction the day after the jury instruction conference. Id. at 1235. In the Ninth Circuit the state conceded that the prosecutor had affirmatively misled the defense. Id. at 1236. The Ninth Circuit held the error was not harmless. Id. at 1237-38. However, at the time of Petitioner's trial, his counsel reasonably could have decided that Sheppard did not apply, for California courts had declined to follow Sheppard. See People v. Scott, 229 Cal.App.3d 707, 716-17, 280 Cal.Rptr. 274 (1991), cert. denied, 503 U.S. 977 (1992); People v. Crawford, 224 Cal.App.3d 1, 8, 273 Cal.Rptr. 472 (1990). Indeed, the United States Supreme Court recently clarified that none of its precedents dictated the holding in Sheppard. See Lopez v. Smith, 135 S.Ct. 1, 3-5 (2014). In any event, Petitioner has not shown the prosecution "affirmatively misled" the defense in requesting aiding and abetting instructions.
Therefore, counsel did not act unreasonably in failing to seek a new trial on the ground of insufficient notice. Furthermore, Petitioner has not shown a reasonable probability that any such motion would have been successful.
G. Petitioner's Claim of Alleged Cumulative Prejudice Does Not Merit Habeas Relief
Petitioner's claim of cumulative prejudice from counsel's alleged errors lacks merit. Because Petitioner's single claims of ineffective assistance of counsel fail, his claim of cumulative prejudice necessarily fails as well. See Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013), cert. denied, 134 S.Ct. 2697 (2014) ("Given that the California Supreme Court was not necessarily unreasonable in concluding that Sully was not prejudiced by any of the alleged errors in isolation, it was also not necessarily unreasonable in concluding that Sully was not prejudiced by the alleged errors in the aggregate."); see generally 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).
H. Conclusion
For all of the foregoing reasons, the California Supreme Court's rejection of Petitioner's claims of ineffective assistance of counsel was not contrary to, or 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, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on these claims.
In light of this recommended disposition, Petitioner's request for an evidentiary hearing is denied. Where, as here, the state court adjudicated the claims on the merits and such adjudication was not "unreasonable" under section 2254(d), habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present in federal court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011) ("if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court, " even where the state court denied the petition summarily) (footnote omitted); Gulbrandson v. Ryan, 738 F.3d 976, 994 n.6 (9th Cir. 2013), cert. denied, 134 S.Ct. 2823 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as to section 2254(d)(1) claims). Moreover, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to the claims adjudicated herein.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) 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.
The Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Franklin v. Johnson, 290 F.3d 1223, 1229, 1232-33 (9th Cir. 2002); see also Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.), cert. denied, 528 U.S. 846 (1999) ("judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated").
In examining an expert witness, counsel may ask a hypothetical question. This is a question in which the witness is asked to assume the truth of a set of facts, and to give an opinion based on that assumption.
In permitting this type of question, the court does not rule and does not necessarily find that all of the assumed facts have been proved. They [sic] only determine that those assumed facts are within the possible range of the evidence.
It is for you to decide from all the evidence whether or not the facts assumed in a hypothetical question have been proved. If you should decide that any assumption in a question has not been proved, you are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts.
(R.T. 1360).