Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. Wu, 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 May 2, 2013. Respondent filed an Answer on September 26, 2013. Petitioner filed a Traverse on April 25, 2014.
BACKGROUND
An amended Information charged Petitioner with: (1) three counts of attempted wilful, deliberate and premeditated murder on May 6, 2006, in violation of California Penal Code sections 187(a) and 664; (2) two counts of attempted wilful, deliberate and premeditated murder on July 10, 2006; (3) one count of first degree murder on July 10, 2006, in violation of California Penal Code section 187; and (4) three counts of shooting at an occupied vehicle in violation of California Penal Code section 246 (Clerk's Transcript ["C.T."] 83-88). The Information further alleged various firearm enhancements (C.T. 85-87). The Information also alleged that Petitioner committed the murder and attempted murders for the benefit of, at the direction of and in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(4) (C.T. 87).
The court permitted the prosecution to amend the Information following the close of the evidence to add the three counts alleging shooting at an occupied vehicle (R.T. 3058-59).
A jury found Petitioner guilty on all counts, and found the enhancements to be true, but found Petitioner guilty of second degree murder, rather than first degree murder (Reporter's Transcript ["R.T."] 3548, 3637-45; C.T. 300-19, 434-35). The court sentenced Petitioner to a total term of 170 years to life plus 60 years (R.T. 3909-10; C.T. 452-58).
The Court of Appeal modified the judgment to stay imposition of the minimum parole eligibility terms on two counts but otherwise affirmed the judgment (Respondent's Lodgment 5; see People v. Valenzuela , 199 Cal.App.4th 1214, 133 Cal.Rptr.3d 196 (2012). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7). The United States Supreme Court denied certiorari on May 14, 2012 (Respondent's Lodgment 9; see Valenzuela v. California , 132 S.Ct. 2404 (2012).
SUMMARY OF TRIAL EVIDENCE
The following summary of the evidence is taken from the opinion of the California Court of Appeal in People v. Valenzuela , 199 Cal.App.4th 1214, 133 Cal.Rptr.3d 196 (2011), cert. denied, 132 S.Ct. 2404 (2012). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
I. Prosecution case
At trial, the prosecution's first witness was Anubia Gonzalez, the sister of Ezekiel Gonzalez, the murder victim. Anubia testified that in 2004, when she was 15, she "jumped in" to "Trust No Bitch, " (TNB) fighting a TNB member as her initiation. TNB had around 20 members, and Roger Martinez was their leader. TNB's territory was in Palmdale. When Anubia joined, she believed TNB was a "tagging crew, " but she later learned that TNB also stole cars and fought with rivals or anyone who disrespected them, and "wanted to be a gang." Anubia "jumped out" of TNB in February 2005 by fighting two TNB members. She left because a TNB member had attacked a friend of hers whose brother was a member of Young Boys Rifa (YBR). Anubia had seen photographs of TNB members, including Martinez, with firearms.
For ease of reference and to distinguish Anubia from her late brother Ezekiel Gonzalez, we refer to Anubia Gonzalez as Anubia and Ezekiel Gonzalez as Gonzalez. No disrespect is intended.
The area Anubia lived in was YBR territory. Anubia had heard rumors that her brother Gonzalez was a YBR member, and she knew for sure in April 2006, when Anubia saw YBR tattoos on Gonzalez's hand and the back of his head. In May 2006, Anubia was at a swap meet with Gonzalez, when she approached a former boyfriend and TNB member and asked him whether TNB and YBR were "bumping heads." The former boyfriend's sister attacked Anubia, telling her to go ahead and "[s]ay fuck T-N-B and watch what's going to happen." The two women pushed each other and began to fight, and Anubia's former boyfriend kicked her. Gonzalez told him to stop, and the fight ended.
A. The May 6, 2006 shooting (attempted murder, counts 1, 2, and 3)
Oscar Flores testified that he was Gonzalez's brother-in-law, and knew that Gonzalez was a YBR gang member with gang tattoos on his body. Flores was not a gang member. On May 6, 2006, Flores was driving home in his fiancee's Nissan Sentra, with Gonzalez in the passenger seat and someone called "Socko" in the back seat. It was dark out. As Flores pulled out of a gas station, he heard a gun go off and saw his car window shatter. Flores could not remember how many shots he heard. Flores saw a white Ford Festiva on his right hand side, with a "Jesus Malverde" sticker in the back window. Flores looked over and saw one person, Valenzuela, in the Festiva. Valenzuela had shouted "T-N-B" before the shooting. Flores did not know Valenzuela, but Gonzalez knew him and said he was from TNB and his nickname was "Snaps."
Flores inspected the Sentra afterward and noticed bullet holes in the headrest on the passenger's side, near the handle on the front passenger door, and near the handle on the rear passenger door. The passenger side windows were shattered, and Flores found a bullet lodged in the front passenger headrest, where Gonzalez had been sitting. Flores did not report the incident because he was worried that he would be labeled a "snitch." He filled the bullet hole in the front passenger door the next day.
B. The July 10, 2006 shooting (murder, count 4, and attempted murder, counts 5 and 6)
Flores testified that after dark on July 10, 2006, after playing handball with Gonzalez and someone called "Smokes" at McAdam Park, he drove off in the Sentra, with Gonzalez in the passenger seat and Smokes in the back seat. Flores noticed the same white Festiva. Gonzalez suggested he follow, and Flores started after the Festiva. Flores' intention was to talk to whoever had shot at him earlier and tell him he didn't want any problems, although Gonzalez wanted to beat the Festiva driver up. Flores followed about three lengths behind the Festiva through two traffic lights, driving under the speed limit. When the Festiva made a left turn onto a two-lane highway, Flores noticed that the driver was using a cell phone. There was another person in the Festiva.
"Smokes" was Ivan Sanchez, a YBR member.
At trial, counsel also referred to the car as a Ford Fiesta.
Flores then noticed a black car (later determined to be a green Dodge Stratus, belonging to Roger Martinez) on his driver's side, on the wrong side of the road, and saw one person in the car. The driver of the Dodge lowered the passenger side window, raised a gun, and started firing multiple shots at Flores's Sentra. Flores ducked down, and Gonzalez fired back at the Dodge. At the same time, the Festiva moved next to the Sentra's passenger side on the shoulder of the highway, and Valenzuela, the driver of the Festiva, also fired at the Sentra. At some point, Flores's Sentra hit the back of the Festiva. Flores's left arm was struck by a bullet which he was sure came from Martinez's Dodge.
Flores had identified Valenzuela as the shooter in a six-pack photo identification.
Flores crashed the Sentra into an oncoming car. When he came to, he saw that the Sentra was on fire and got out of the car. Seeing that Gonzalez was not moving, he asked people to help get him out, and someone pulled a bleeding Gonzalez from the burning Sentra. Flores and Smokes ran five feet away from the car.
Los Angeles County Sheriff's Deputy Douglas Parkhurst testified that he arrived on the scene at 10:33 p.m. The Sentra was in flames, and a black vehicle it had collided with was at the corner. The Festiva was abandoned about 200 to 250 yards away. Gonzalez was lying on the sidewalk with a gunshot wound, and paramedics pronounced him dead.
Los Angeles County Sheriff's Detective Jonas Shipe testified that he arrived on the scene at 1:05 a.m. A.38 bullet casing was found north of the collision scene on the highway. A gun (a Walther PPK) was recovered from the Sentra's front dashboard area. On the driver's side of the Sentra, there was a bullet hole in the sideview mirror, a strike to the frame of the door, and a strike to the keyhole of the door. A bullet fragment was recovered from the door.
From the Dodge, police recovered a bullet that matched the Walther PPK recovered from the Sentra. The other two bullets - the fragment in the door of the Sentra, and the casing found in the street - were not fired by the Walther PPK. When interviewed, Flores said "Snaps" was the person involved, and identified Valenzuela as a suspect in a six-pack photo identification.
Flores was initially arrested and booked for murder. On July 12, 2006, he told Detective Shipe that he did not follow the Festiva, and that the Festiva hit the Sentra from behind. He denied having seen the Festiva before, and said he did not know how he got shot. Flores also said that he saw that Gonzalez had a gun in his work boot, before he saw the Festiva or the Dodge. After the police showed him a photo of Gonzalez lying dead, Flores said he knew where "Snaps" lived, showed Detective Shipe where the house was, and identified the Festiva, stating that he had seen it parked outside Valenzuela's house.
C. July 18, 2006 arrest of Valenzuela and interview in custody
Detective Shipe arrested Valenzuela on July 18, 2006. Valenzuela was leaving his house in the back seat of a car. Detective Shipe recovered a loaded.22-caliber pistol, wrapped in a shirt, from the storage compartment of the driver's seat, in front of where Valenzuela was sitting. A search of Valenzuela's house found shotgun shells, .22-caliber rounds, a bandana, and in Valenzuela's room, notebooks with TNB written on them.
A tape-recorded interview of Valenzuela that same day with Detectives Shipe and David Carver was played for the jury at trial. Valenzuela stated that he had a TNB tattoo from two or three years earlier, and his nickname was "Snaps" because he used to have an anger management problem. He was 18 years old. When asked when he had "jumped in" to TNB he replied that he was 15 or 16, but was no longer a TNB member. He admitted that about two weeks ago on the streets, he acquired the gun found at the time of his arrest in the car storage compartment. He owned the ammunition found in his room. Sometimes Valenzuela borrowed his mother's Festiva, which had a Malverde sticker on it. He took the car without telling his mother on July 10, 2006, and was at the house of his friend "Puppet." Valenzuela then said he didn't want to answer any more questions, and the interview ended.
Detective Shipe testified that Valenzuela called the detectives back to talk more. Detective Shipe mistakenly believed he had started the tape recorder when the second interview began, but he hit the wrong button and the interview was not recorded. Valenzuela told the detectives that he saw rival gang members and fired the shots at Flores's Sentra in May 2006, but he never stated that he saw a gun, that someone in the Sentra shot at him first, or that he was fearful. At some point, Valenzuela said that someone in the other car was reaching for a firearm.
D. Interview August 16, 2006
Detective Shipe interviewed Valenzuela again on August 16, 2006. The recording of the interview was played for the jury. Valenzuela told Detective Shipe that in the May 2006 shooting, he was in the Festiva when he heard gunshots. There were three people in the other car when it pulled up on him, and they were screaming at him and saying YBR, and he thought they were going to jump out of their car. They tried to box Valenzuela in, one of them had the front passenger door open, one had something in his hand, and Valenzuela heard shots. Valenzuela fired back because he feared for his life, and then drove away and lost the other car.
During the July 10, 2006 shooting, Valenzuela heard gunshots and got hit from behind, and ran from his car when it stopped. The other car was the same car as in the May 2006 incident. Detective Shipe urged Valenzuela to tell him the truth so that authorities could "decide whether it[ ][was]... self defense, or if [Valenzuela had] some kind of culpability in this." Valenzuela told Detective Shipe that he was heading home with his friend "Puppet, " whose real name was Jose Lara (although Valenzuela first said that his name was Roberto), when they recognized his Festiva and started following him. He said he couldn't remember whom he called, and he didn't know who was in the other car. Detective Shipe told him he had his phone records and knew the phone number. Valenzuela said he had nothing to say, and did not know whom he called.
E. Cell phone records
Martinez's and Valenzuela's cell phone records for July 10, 2006 showed that they exchanged several cell phone calls between 6:15 p.m. and 8:33 p.m., and Valenzuela called Martinez three separate times just minutes before Deputy Parkhurst arrived at the scene around 10:33 p.m., at 10:23 p.m., 10:28 p.m., and 10:30 p.m. After the shooting, Valenzuela called Martinez multiple times, at 10:36, 10:38, 10:40, 10:46, 11:16, 11:19, and 11:51 p.m.
F. Interviews and testimony of Martinez
Detectives Shipe and Carver interviewed Martinez on August 24, 2006, and the videotape of the interview was played for the jury. Martinez, then 19 years old, stated that he knew Valenzuela, whose nickname was "Snaps." Martinez used to be from TNB, and his nickname was "Cynic." On the night of July 10, 2006, Martinez was driving to Valenzuela's house in a green Dodge when Ricardo "called me, told me, Hey, some guys are following.' So, and all of a sudden, the phone cut off." Martinez tried calling back but got no answer. Martinez drove to Valenzuela's house, but he wasn't there. Valenzuela called Martinez and asked him to pick him up because something had just happened. Martinez refused, and Valenzuela arrived home running, telling Martinez, "Some guys, um, following me and then just got into it [shooting]."
Pursuant to a search warrant for Martinez's residence, detectives found a letter addressed to Martinez from Valenzuela dated October 2005, in which Valenzuela used his nickname "Snaps" and crossed out the letters "D" and "Y" as disrespect to another gang and YBR.
After the detectives showed Martinez the cell phone records, he explained that Valenzuela kept calling him to ask him for a ride, and denied that he drove on the highway that night. Martinez then said he picked Valenzuela up, and that he had seen Valenzuela driving the Festiva and crashing into the car that followed him. The car following the Festiva crashed into a black car and something blew up. Martinez, who was alone in the car, drove to his cousin's house and picked up Valenzuela after he called while he was running from the scene.
The detectives described a surveillance video that showed Martinez's Dodge driving next to the Sentra with three people inside, and "bright flashes of light" coming from the Dodge. Martinez then stated that Valenzuela called him and told him to "get a strap, " or gun. Martinez and his passenger, a TNB member known as "Largo, " picked up a.38-caliber handgun after Valenzuela called Martinez. Valenzuela called again with his location.
Martinez gave Largo's real name as Victor Flores, but detectives were not able to find him.
Martinez saw Valenzuela's car being followed by another car, and Martinez pulled up on the side of the following car because Largo told him to get closer. Largo, lying back in the passenger seat, fired back three or four rounds, and the people in the following car looked surprised. Martinez thought they fired back because he found bullet holes in his car, but he didn't know where the bullets came from. The other car kept following Valenzuela's car, hitting it and then crashing into a fourth car after Martinez's car had passed. Martinez did not see the crash. He dropped Largo off, and Largo took the gun with him. Martinez picked Valenzuela up as he ran, and dropped Valenzuela off at his house.
Another interview of Martinez on September 18, 2006 was tape recorded and played for the jury at trial. Martinez told the detectives that on July 10, 2006, he was with Largo swimming when Valenzuela called saying that he was being followed. Valenzuela asked Martinez to get a strap, and Martinez and Largo picked up the gun. Valenzuela called again to give his location, and Martinez drove there and pulled up on the driver's side of the car following Valenzuela. Largo fired at the car and the car returned fire.
Martinez was convicted of the first degree murder of Gonzalez, and the attempted premeditated murders of Flores and Sanchez (Smokes). At Valenzuela's trial, Martinez testified that he had been close friends with Valenzuela in high school. Martinez denied ever hearing of TNB or making any incriminating statements to detectives.
In a nonpublished opinion, this court affirmed Martinez's conviction of first degree murder and use of a firearm causing great bodily injury or death. ( People v. Martinez (Dec. 23, 2009, B209939, 2009 WL 4936759) [nonpub. opn.].)
G. Gang expert testimony
Los Angeles County Sheriff's Deputy Joseph Fender, a gang expert, testified that TNB was a gang that began as a tagging crew, and in 2006 TNB had 20-30 members and primarily engaged in vehicle theft. Martinez had told Deputy Fender that he was a TNB member. Valenzuela had admitted that he was a TNB member with the nickname Snaps, and Deputy Fender had seen "Trust No Bitch'" tattooed on Valenzuela's chest. In 2006, TNB and YBR claimed the same territory. Given a hypothetical with facts similar to those in this case, Deputy Fender opined that the May 2006 and July 2006 shootings were committed for the benefit of a gang.
II. Defense Case
A. Valenzuela's testimony
Valenzuela testified on his own behalf. He became a member of TNB in 2004 and left the gang in early 2006, although he still hung around with some TNB members, including Martinez. He denied that he was ever jumped in, stating that he was just a member.
Valenzuela admitted that in May 2006, he shot at the Sentra with three people inside. The Sentra followed his car when he was leaving home. He heard the Sentra's occupants scream something out ("where you from, or fuck TNB, or something" or "YBR Young Boys"), the passenger moved as if he had a gun, and Valenzuela heard a popping sound. When the Sentra tried to block him off Valenzuela saw the passenger start to open the door with a black object in his hand, and Valenzuela fired out of his driver side window at the passenger side of the car. He aimed at the side of the car, not at the occupants. Valenzuela bought the gun on the street a few weeks earlier, although he knew it violated his probation to do so, and he carried the gun for protection. He shot at the Sentra because "I thought they were going to keep shooting; so I had a gun too, so I shot too. [¶]... [¶]... I thought I was going to get shot and probably killed." He shot at the car to try to get away. Before May 6, 2006, he had never fired a gun.
On July 10, 2006, Valenzuela was driving home with Puppet when he noticed the Sentra from the May 6, 2006 shooting incident, parked near his house. He couldn't see who was inside. He passed the Sentra and drove away without stopping at his house, and noticed the Sentra's lights turn on. When he realized the Sentra was following him, Valenzuela sped up to 60 or 65 miles per hour, and at some point he was going 75 miles per hour and running red lights. The Sentra continued to follow him. He was scared and paranoid because Puppet told him "he's got a gun, he's got a gun, " but Valenzuela never saw a gun. He called Martinez several times during the chase because he feared for his life, and told Martinez to get a gun and come help him, but Valenzuela did not tell Martinez to kill anyone. He did not have his gun with him that night. Valenzuela thought the chase lasted more than five minutes.
Valenzuela saw Martinez coming as he turned onto the highway. He heard gunfire, and then the Sentra hit his Festiva from behind. The Festiva was disabled, and Valenzuela abandoned it by the side of the road and ran to get away. He and Puppet ran away through the desert, and Valenzuela called Martinez a few more times to get picked up, but Martinez did not come. Valenzuela called his sister and she picked him and Puppet up. Valenzuela did not call the police about the shooting. He found out the next day that someone had been killed.
Valenzuela testified that he did not know that the detectives were recording his first interview after his arrest (for a probation violation). Detective Shipe was putting words in his mouth, Valenzuela got angry, and then Detective Shipe got angry and walked out. Valenzuela was interviewed again a month later. He admitted lying to the detectives about whether Martinez had a gun and when he said that he did not know who was in the dark car.
After his release from custody, Valenzuela went to Mexico to stay with his grandmother, who had cancer. After a year, his girlfriend came to Mexico and he lived with her for another eight months. While he was in Mexico he visited the United States several times. He came back to the United States with his girlfriend when she got pregnant. He did not think he was wanted for any crimes.
In rebuttal, Detective Fender testified that just after Valenzuela was charged with murder, Valenzuela's brother told Detective Fender that Valenzuela had gone to Canada. Detective Fender looked for Valenzuela three or four times a week for the next two and a half or three years. A week before the July 10 shooting, Detective Fender made a traffic stop of a green van in which Valenzuela was a passenger. The driver said he was a TNB member.
B. Other testimony
Los Angeles County Sheriff's Department Detective Anthony Delia testified that he interviewed Oscar Flores about the May 2006 shooting. Flores told him that a person in a white Festiva pulled alongside of him, pointed a gun at him, and fired the gun at him, leaving three bullet holes in Flores's car.
Valenzuela's sister, Sonia Zabala, testified that Valenzuela called her around midnight on July 10, 2006 and asked her to pick him and a friend up. She picked Valenzuela and Puppet up, and Valenzuela told her he had been chased by a car which hit him from behind, and his car stopped working.
III. Stipulations
The parties stipulated that a firearms identification investigator would have testified that the Sentra had five bullet holes. The trajectory of the hole in the driver's side mirror could not be definitively determined, although it either traveled from outside the vehicle through the mirror housing toward the steering wheel, or from the inside through the mirror housing. The bullet causing the hole in the molding on the bottom edge of the driver's door window frame traveled from right to left, and no further trajectory could be determined. The bullet that created the hole in the exterior driver door next to the handle traveled right to left and penetrated the exterior of the door; no further trajectory could be determined (a fired bullet was recovered from inside the door). The bullet impact to the rear door ricocheted off the exterior; no trajectory could be determined, and the impact was possible [sic] historic. The bullet creating the bullet hole in the right front door traveled right to left and penetrated the exterior; no further trajectory could be determined, and bullet hole was possibly historic. The parties also stipulated to the admission of the coroner's report of Gonzalez's autopsy, which showed that the entrance wound was a "through and through" bullet wound on the left front collarbone, and the exit wound was on Gonzalez's left back. The cause of death was a gunshot wound that severed the aorta, causing massive blood loss.
(Respondent's Lodgment 5, pp. 3-13; see People v. Valenzuela , 199 Cal.App.4th at 1218-27) (footnotes in original).
SUMMARY OF PETITIONER'S CONTENTIONS
Petitioner contends:
1. The trial court allegedly erred in failing to give an imperfect self-defense instruction after assertedly finding substantial evidence to support a perfect self-defense instruction (Ground One);
2. The trial court's failure to give an imperfect self-defense instruction allegedly violated Due Process (Ground Two);
3. The trial court allegedly erred by instructing the jury "on the concept of mutual combat within the context of self-defense law" (Ground Three);
4. The trial court allegedly erred by instructing the jury "on the concept of compelling another to commit a crime" (Ground Four); and
5. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to object to the court's asserted decision to "charge" Petitioner with a "five year motor enhancement [sic]" pursuant to California Penal Code section 190(d) (Ground Five).
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 , 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (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. 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."). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow , 134 S.Ct. 10, 16 (2013).
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008).
DISCUSSION
I. Petitioner's Claims of Instructional Error Do Not Merit Habeas Relief.
A. Governing Legal Standards
"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor , 508 U.S. 333, 342 (1993); see also Estelle v. McGuire , 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds , 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire , 502 U.S. at 72; Clark v. Brown , 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil , 541 U.S. 433, 437 (2004); Henderson v. Kibbe , 431 U.S. 145, 154 (1977); Villafuerte v. Stewart , 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe , 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California , 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe , 431 U.S. at 155.
B. Failure to Give Imperfect Self-Defense Instruction (Grounds One and Two)
1. Background
In California, self-defense can be a complete defense to a murder charge, rendering a killing a justifiable homicide. People v. Randle , 35 Cal.4th 987, 996, 28 Cal.Rptr.3d 725, 111 P.3d 987 (2005), overruled on other grounds, People v. Sarun Chun , 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425 (2009); People v. Humphrey , 13 Cal.4th 1073, 1082, 56 Cal.Rptr.2d 142, 921 P.2d 1 (1996). For perfect self-defense, the perpetrator must actually and reasonably believe in the necessity of defending the perpetrator from imminent danger of death or great bodily injury. People v. Randle , 35 Cal.4th at 994. Under the doctrine of imperfect self-defense, one who actually but unreasonably believes he or she must defend himself or herself from imminent danger or great bodily injury is guilty of voluntary manslaughter. Id.; see People v. Cruz , 44 Cal.4th 636, 664, 80 Cal.Rptr.3d 126, 187 P.3d 970 (2008), cert. denied, 555 U.S. 1215 (2009). Imperfect self-defense negates the element of malice, thereby mitigating rather than justifying the homicide. Id.; see also Middleton v. McNeil , 541 U.S. at 434.
At a conference on jury instructions, the trial court said that, while it did not believe Petitioner's testimony supported a perfect self-defense instruction, the court did intend to give such an instruction (R.T. 3052). However, the court refused to give an imperfect self-defense instruction, reasoning that if the jury found Petitioner had been in actual fear of death or great bodily injury because the victims allegedly had a gun, such purported actual fear could not have been unreasonable (R.T. 3052).
2. Discussion
a. Alleged Obligation to Give Imperfect Self-Defense Instruction Whenever Evidence Supports a Perfect Self-Defense Instruction (Ground One)
In Ground One, Petitioner contends that the trial court was required to give an imperfect self-defense instruction once the court supposedly found there was substantial evidence to support a perfect self-defense instruction (Petition, ECF Document 1, p. 8). Petitioner states that there presently is a split in the California Courts of Appeal on the issue and urges this Court to follow state law authority assertedly supporting Petitioner's position (id.). The Court of Appeal rejected Petitioner's argument on state law grounds (Respondent's Lodgment 5, pp. 17-20; People v. Valenzuela , 199 Cal.App.4th at 1230-32).
The Petition does not bear consecutive page numbers. The Court uses the ECF pagination.
Petitioner raises only a claim of state law error that is not cognizable on federal habeas review. See Gilmore v. Taylor , 508 U.S. at 342; Estelle v. McGuire , 502 U.S. at 71-72; Little v. Crawford , 449 F.3d 1075, 1082 (9th Cir. 2006), cert. denied, 551 U.S. 1118 (2007) ("the Supreme Court has long settled that the Fourteenth Amendment does not assure immunity from [state court] judicial error"; citations omitted). Hence, Petitioner is not entitled to habeas relief on Ground One of the Petition.
Respondent asserts that to the extent Ground One may raise a constitutional claim, Ground One is unexhausted (Answer, p. 5, n.2). The Court does not construe Ground One of the Petition to raise any federal constitutional claim.
b. Alleged Obligation to Give Imperfect Self-Defense Instruction Based on the Evidence in Petitioner's Case (Ground Two)
Petitioner claims that the trial court erred in failing to give an imperfect self-defense instruction because "substantial evidence" supposedly supported such an instruction. This claim also does not merit federal habeas relief. As the Court of Appeal stated, in California imperfect self-defense "is not a true' defense, but a shorthand description of one form of voluntary manslaughter.'" People v. Valenzuela , 199 Cal.App.4th at 1214 (citation omitted); see also People v. Cruz , 44 Cal.4th at 664 (imperfect self-defenses "is not an affirmative defense, but rather a description of one type or theory of voluntary manslaughter") (citations omitted). Voluntary manslaughter based on imperfect self-defense is a lesser included offense of murder. See People v. Moye , 47 Cal.4th 537, 549, 98 Cal.Rptr.3d 113, 213 P.3d 652 (2009). Hence, Petitioner's claim is that the trial court erred in refusing to give a lesser included offense instruction.
The United States Supreme Court expressly has declined to rule whether federal habeas relief is available for a court's failure to instruct on a lesser included offense in a noncapital case. See Beck v. Alabama , 447 U.S. 625, 638 n.14 (1980); see also Powell v. Hatcher , 407 Fed.App'x 226, 227 (9th Cir.), cert. denied, 131 S.Ct. 2467 (2011) (denying habeas relief, noting that in Beck the Supreme Court expressly declined to rule on the issue); Huynh v. Hernandez, 2007 WL 186307, at *1 (9th Cir. Jan. 22, 2007) (failure to instruct on lesser offense of involuntary manslaughter did not merit habeas relief; "there is no clearly established' Supreme Court law that requires giving a lesser-included offense instruction in a non-capital case") (citations omitted); see also Dansby v. Trombley , 369 Fed.App'x 657, 660 (6th Cir. 2010) ("the Supreme Court has never held that due process requires the giving of jury instructions on lesser-included offenses in noncapital cases"). Therefore, under the standard of review set forth in 28 U.S.C. section 2254(d)(1), habeas relief is unavailable on this claim. Id.; see Moses v. Payne , 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer , 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an open question, '" habeas relief unavailable).
Furthermore, under Ninth Circuit law, "the failure of a state trial court to instruct on a lesser included offense in a non-capital case does not present a federal constitutional question." Windham v. Merkle , 163 F.3d 1092, 1106 (9th Cir. 1998); see also United States v. Rivera-Alonzo , 584 F.3d 829, 834 n.3 (9th Cir. 2009) ("In the context of a habeas corpus review of a state court conviction, we have stated that there is no clearly established federal constitutional right to lesser included instructions in non-capital cases.") (citation omitted); Solis v. Garcia , 219 F.3d 922, 929 & n.7 (9th Cir. 2000), cert. denied, 534 U.S. 839 (2001) (same; also holding claim that court failed to give lesser included offense instruction in a noncapital case was barred by the non-retroactivity principle of Teague v. Lane , 489 U.S. 288 (1989)); Bashor v. Risley , 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838 (1984); People v. Breverman , 19 Cal.4th 142, 165, 77 Cal.Rptr.2d 870, 960 P.2d 1094 (1998) (rejecting "any implication that the alleged error at issue in this case - the failure to instruct sua sponte on an uncharged lesser included offense, or any aspect thereof - is one which arises under the United States Constitution"). Accordingly, Petitioner's claim that the trial court supposedly erred in failing to instruct the jury on voluntary manslaughter based on a theory of imperfect self-defense does not raise an issue cognizable on federal habeas review. See, e.g., Kopy v. Ryan, 319 Fed.App'x 666, 669 (9th Cir.), cert. denied, 558 U.S. 973 (2009) (denying habeas relief on claim of failure to instruct jury, sua sponte, on imperfect self-defense, as not presenting a federal constitutional question); Solorio v. Barnes, 2013 WL 2627063, at *5 (C.D. Cal. June 10, 2013) (failure to instruct on imperfect self-defense not cognizable on federal habeas review).
For these reasons, Petitioner is not entitled to habeas relief on Ground Two of the Petition.
C. Mutual Combat Instruction (Ground Three)
At the conference on jury instructions, Petitioner's counsel questioned the court's proposed instruction concerning self-defense in a mutual combat situation, asking whether there was evidence supporting the instruction (R.T. 3055-56). The court replied that evidence of cars containing rival gang members, "multiple altercations" and Petitioner's call to "somebody else to engage them in a gun battle" could lead jurors to conclude that the "gun battle may have been mutual combat, " adding that the court intended to instruct "on anything to which there's substantial evidence... before the jury at this point" (R.T. 3056). Petitioner's counsel said "Okay" and moved to another topic (R.T. 3056). The court gave the following instruction:
The right of self-defense is only available to a person who engages in mutual combat if he has done all of the following: number one, he has actually tried in good faith to refuse to continue fighting; number two, he has by words or conduct caused his opponent to be aware as a reasonable person that he wants to stop fighting; and number three, he has caused by words or conduct his opponent to be aware as a reasonable person that he has stopped fighting; and number four, he has given his opponent the opportunity to stop fighting. After he has done these four things, he has the right to self-defense if his opponent continues to fight.
Mutual combat consists of fighting by mutual intention, agreement, or consent. It follows an express or implied agreement to fight. However, before mutual combat can be found to exist, you must find that all combatants actually intended, agreed, or consented to fight before the claimed occasion for self-defense arose. This agreement need not have all the characteristics of a legally binding contract.
(R.T. 3352-53; C.T. 412).
The Court of Appeal ruled the evidence supported the instruction with respect to the July 10, 2006 incident, including evidence that: (1) Flores allegedly followed Petitioner's car because of the previous May 2006 confrontation; (2) Gonzalez allegedly said he wanted to beat Petitioner up; (3) Gonzalez allegedly exchanged gunfire with Martinez; (4) Petitioner allegedly fired at the Sentra from the passenger side; and (5) Petitioner allegedly recognized the Sentra from the previous confrontation, followed the Sentra for more than five minutes and called Martinez to get a gun and help Petitioner (Respondent's Lodgment 5, p. 22; see People v. Valenzuela , 199 Cal.App.4th at 1233-34). The Court of Appeal also deemed any error harmless in light of the strength of the evidence of guilt (Respondent's Lodgment 5, pp. 22-23; see People v. Valenzuela , 199 Cal.App.4th at 1234).
While the evidence of mutual combat less than overwhelming, this Court cannot conclude that the Court of Appeal's rulings were unreasonable. Moreover, if the jury found that the evidence did not support the challenged instruction, then another jury instruction required that the jury disregard the challenged instruction. See Baldwin v. Tampkins, 2013 WL 5548546, at *10 (C.D. Cal. Oct. 8, 2013) (habeas relief unavailable even if, as petitioner contended, the evidence did not "fit" the mutual combat instruction, where court instructed jury that some instructions might not apply, depending on jury's factual findings). The jury is presumed to have followed its instructions. See Weeks v. Angelone , 528 U.S. 225, 226 (2000).
The court instructed the jury that all instructions were not necessarily applicable, and that it should disregard any instructions applicable to facts the jury determined not to be true (R.T. 3625-26; C.T. 423).
Furthermore, any alleged error was harmless under the Brecht standard. As the Court of Appeal observed, the evidence of guilt, described above, was strong. Petitioner's credibility was impaired severely by his admissions that he lied multiple times to multiple people. Petitioner initially testified on cross-examination that he had not lied "various times in regards to the facts of this case" (R.T. 2494-95). However, the fact quickly emerged that this testimony itself was a lie. Petitioner admitted lying to his mother about his location prior to the July shooting (R.T. 2495). Petitioner admitted lying to detectives multiple times, including lying about taking his mother's car, identifying Martinez as the occupant of the green car and telling Martinez to get a gun (R.T. 2496-2500). Petitioner admitted that he lied to detectives when he told them he had been "jumped in" to TNB (R.T. 2504-06, 2727). Asked whether there were "more lies" Petitioner had told that had not yet been covered in his testimony, Petitioner responded: "Probably." (R.T. 2500).
Brecht v. Abrahamson , 507 U.S. 619 (1993) (a non-structural error warrants habeas relief only if the error had a "substantial and injurious effect or influence" on the outcome of the proceeding).
Petitioner's testimony also lacked credibility for other reasons. Petitioner testified that, in the numerous phone calls with Martinez during the July incident, Petitioner supposedly never gave Martinez directions or told Martinez to go to a specific location. Petitioner could not explain how Martinez nevertheless ended up at the location where Petitioner and Flores were driving, purporting to guess that it was "just coincidence" (R.T. 2520-22, 3032-33). Petitioner testified he was not a TNB gang member, and claimed TNB was only a "tagging crew." Yet, Petitioner admitted yelling "TNB" at the other car in the May incident, admitted that a photo showed Petitioner and Martinez throwing TNB hand signs, demonstrated TNB hand signs to the jury, and admitted writing a letter to Martinez in which certain letters associated with another gang were crossed out (R.T. 2245-47, 2509, 2513-17, 2733-34).
Petitioner said he joined TNB in approximately 2004 at the age of 16, but left the group in approximately 2006 (R.T. 2442-43).
In light of the strength of the prosecution's case, the weak evidence of self-defense, the court's other instructions and Petitioner's grave credibility problems, this Court cannot conclude that the challenged instruction had any "substantial and injurious effect or influence" on the verdict. See Brecht v. Abrahamson 507 U.S. at 637-38 . Petitioner is not entitled to habeas relief on Ground Three of the Petition.
D. Instruction on Compelling Another to Commit a Crime (Ground Four)
California Penal Code section 31 provides:
All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.
(emphasis added).
At Petitioner's trial, the court proposed giving CALJIC 3.04, which states: "A person who, by threat, menace, command or coercion, compels another to commit any crime is guilty of that crime." (R.T. 3056). Petitioner's counsel did not object to this instruction, although she said she "wondered about" the instruction (R.T. 3056). The trial court said there was evidence supporting the inference that Petitioner "upon seeing the people that he had shot at before called someone else and said get a strap and basically come and take them out" (R.T. 3056-57). Petitioner's counsel said "Okay" (R.T. 3057). The court gave the instruction (RT. 3353; C.T. 413).
The Court of Appeal approved the use of the instruction, ruling that the instruction conformed to California Penal Code section 31 and rejecting Petitioner's contention that the instruction allegedly was appropriate only when the other person was an "innocent conduit" (Respondent's Lodgment 5, pp. 23-24; see People v. Valenzuela , 199 Cal.App.4th at 1234-35). The Court of Appeal also ruled that any error was harmless (Respondent's Lodgment 5, pp. 23-24; see People v. Valenzuela, 199 Cal.App.4th at 1235-36).
The Court of Appeal's rejection of this claim was not unreasonable. The evidence that Petitioner called Martinez and told Martinez to get a gun and come help Petitioner amply supported the challenged instruction.
Petitioner contends the instruction was inappropriate because Martinez was not an "innocent conduit." Petitioner relies on People v. Hernandez , 18 Cal.App.3d 651, 96 Cal.Rptr. 71 (1971) ("Hernandez"). In Hernandez, the State prosecuted a woman for rapes committed by her husband. The court instructed the jury, using the language of Penal Code section 31, that a person "who, by threats, menaces, command, or coercion, compels another to commit any crime, is a Principal and guilty of the crime so committed." Hernandez , 18 Cal.App.3d at 655. The court also gave aiding and abetting instructions. Id. The defendant argued on appeal that the jury instructions precipitated "confused" verdicts in which some jurors found that the husband was a rapist and some that he was the wife's "innocent conduit." Id. at 656. In rejecting this claim, the court referred to "what [the defendant wife] calls the innocent conduit" theory, " meaning the theory expressed in the Penal Code section 31 instruction. Id. The Hernandez Court failed to hold, or even intimate, that a defendant is innocent if the third party whom the defendant compelled to commit the crime was not "innocent." Thus, as the Court of Appeal held in Petitioner's case, Hernandez did not limit the application of Penal Code section 31 to a principal who compels an "innocent" person to commit a crime (Respondent's Lodgment 5, p. 24; see People v. Valenzuela, 199 Cal.App.4th at 1235).
This instruction contained no mention of any "innocent conduit" requirement, however.
In the Traverse, Petitioner appears to argue that the court should have instructed the jury that Petitioner could not be held liable for compelling another to commit a crime unless the jury also found the elements of aiding and abetting liability (see Traverse, pp. 16-17). However, California Penal Code section 31, quoted above, defines separate categories of principals. Once such category is "[a]ll persons... who aid and abet" in the commission of the crime; another, separate category is "[a]ll persons... who by threats, menaces, command, or coercion, compel another to commit any crime...."
Furthermore, any alleged error was harmless under Brecht. As the Court of Appeal indicated, the trial court also gave an aiding and abetting instruction defining an aider and abettor to include one who "with knowledge of the unlawful purpose of the perpetrator... and with the intent or purpose of committing or encouraging or facilitating the commission of the crime, ... by act or advice, aids, promotes, encourages or instigates the commission of the crime" (R.T. 3339; C.T. 391) (see Respondent's Lodgment 5, p. 24; People v. Valenzuela, 199 Cal.App.4th at 1235). The evidence that Petitioner aided, promoted, encouraged and instigated Martinez to shoot at Flores' vehicle was extremely strong. In such circumstances, the challenged instruction cannot have had any "substantial and injurious effect or influence" on the verdict.
For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Four of the Petition.
II. Petitioner's Claim of Ineffective Assistance of Trial Counsel Does Not Merit Habeas Relief.
A. Background
California Penal Code section 190(d) provides:
Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.
At a conference on jury instructions, the court stated that it intended to give a lesser-included second degree murder instruction which included an instruction for the section 190(d) enhancement (R.T. 3049). The court said: "I understand that normally it's something that would have to be pled and proved in the Information. But because we're dealing with the lesser-included offense and what was charged originally was first-degree murder, obviously the allegation wasn't there." (R.T. 3049-50). Petitioner's counsel said she had no objection, and the court subsequently gave the instruction (R.T. 3050, 3326-27). The jury found true the section 190(d) allegation, and the court sentenced Petitioner to a term of 20 years to life on the murder count (R.T. 3640-41; C.T. 307, 311, 455).
The penalty for first-degree murder generally is life without the possibility of parole or a prison term of 25 years to life. See Cal. Penal Code § 190(a). The penalty for second-degree murder is 15 years to life. See id..
Petitioner contends counsel's failure to object was ineffective because, under California law, Petitioner purportedly could not be convicted of an offense uncharged in the accusatory pleading, absent Petitioner's consent (Petition, ECF Document 1, p. 15). The Court of Appeal ruled that counsel had consented to the instruction, and that, in any event, Petitioner had not shown counsel's alleged ineffectiveness prejudiced Petitioner (Respondent's Lodgment 5, pp. 25-27; see People v. Valenzuela, 199 Cal.App.4th at 1237-38).
B. 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; see Gentry v. Sinclair , 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); 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. 770, 787 (2011) (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). If the reviewing court can conceive of a reasonable explanation for counsel's action or inaction, the court need not determine the actual explanation. Morris v. California , 966 F.2d 448, 456-57 (9th Cir. 1991), cert. denied, 506 U.S. 831 (1992).
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. 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. 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. at 792 (quoting Strickland , 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.
C. Discussion
"Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial [citations]. This means that except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense [citation]. An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense [citations]. The same rules apply to enhancement allegations [citation]."
People v. Haskin , 4 Cal.App.4th 1434, 1438, 7 Cal.Rptr.2d 1 (1992).
"When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the elements of any lesser necessarily included offense." People v. Arevalo-Iraheta , 193 Cal.App.4th 1574, 124 Cal.Rptr.3d 363 (2011) (citation and internal quotations omitted). "Hence, the stated charge notifies the defendant for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information." Id. (citation and internal quotations omitted); see also Cal. Penal Code § 1159 ("The jury... may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, ..."). "At a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information." Id. (brackets and internal quotations omitted; citing People v. Jones , 51 Cal.3d 294, 317, 270 Cal.Rptr. 611, 792 P.2d 643 (1990)); see also People v. Butte , 117 Cal.App.4th 956, 959, 12 Cal.Rptr.3d 221 (2004) ("It is clear that in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend. ") (original emphasis; citation and internal quotations omitted).
Here, Petitioner's counsel reasonably could have determined that any objection would be unavailing. Because second degree murder is a lesser-included offense of first-degree murder, see People v. Taylor , 48 Cal.4th 574, 623, 108 Cal.Rptr.3d 87, 229 P.3d 12 (2010), cert. denied, 131 S.Ct. 529 (2010) the defense was on notice that Petitioner faced a charge of second degree murder. Hence, counsel reasonably could have decided not to object to the giving of a second-degree murder instruction. The Information also contained enhancement allegations that Petitioner personally and intentionally used and discharged a firearm in the commission of the murder proximately causing great bodily injury and death to Gonzales (see C.T. 85-87). The prosecution introduced evidence at the preliminary hearing to show that: (1) in May of 2006, Petitioner shot at a car in which Gonzalez was sitting in the passenger seat; (2) on July 10, 2006, Oscar Flores, driving a car containing Gonzalez, followed Petitioner's car; (3) Petitioner called Martinez and instructed Martinez to get a gun; and (4) Martinez drove up next to the car and shots were fired from Martinez' car, resulting in Gonzalez' death (C.T. 15-21). Counsel reasonably could have believed that this evidence, coupled with the firearm enhancements already alleged in the Information, sufficed to put Petitioner on notice of a charge of second degree murder by means of shooting a firearm from a motor vehicle intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.
Indeed, Petitioner does not contend he lacked actual notice of the section 190(d) allegation. Petitioner asserts: "[T]he fallacy comes in the [Court of Appeal's] conclusion is [sic] that the prejudice does not rise from the lack of notice he was entitled to receive, rather it rises from the fact that California has a bright-line rule that a defendant may not be convicted of an offense that was not specifically charged in the accusatory pleading unless it was a necessarily included offense" (Traverse, p. 20). As set forth above, however, Petitioner's counsel reasonably could have determined that, under California law, the requisite notice was supplied by the Information and the preliminary hearing transcript.
Furthermore, Petitioner has not shown counsel's failure to object prejudiced Petitioner. In light of applicable California law as set forth above, the allegations of the Information and the evidence at the preliminary hearing, Petitioner has not shown that any objection would have been successful. Hence, Petitioner has not shown Strickland prejudice. See Styers v. Schriro , 547 F.3d 1026, 1030 (9th Cir. 2008), cert. denied, 558 U.S. 932 (2009) (to show a Strickland violation, petitioner must show a reasonable probability that, had counsel made the motion, the motion would have been granted); Rupe v. Wood , 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) ("the failure to take a futile action can never be deficient performance"); Shah v. United States , 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989) ("[T]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel"; citation and internal quotations omitted). Petitioner is not entitled to habeas relief on Ground Five of the Petition.
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.
In light of this recommended disposition, Petitioner's request for an evidentiary hearing is denied. Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to the claims adjudicated herein.