(HC) Kemokai v. Rackley

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SAMUEL KEMOKAI,

No. 2:17-cv-01776-JKS

Petitioner,

MEMORANDUM DECISION

vs.

RICK HILL, Warden, Folsom State Prison,1

Respondent.

Samuel Kemokai, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas

Corpus with this Court pursuant to 28 U.S.C. § 2254. Kemokai is in the custody of the

California Department of Corrections and Rehabilitation and incarcerated at Folsom State

Prison. Respondent has answered, and Kemokai has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Kemokai, along with co-defendants George Christian and Tommy Cornelius, was

charged with the attempted murder of Santana Robinson and various other offenses in

connection with the group beating of a man at a gas station on Halloween night 2008. The

information further alleged as to the attempted murder that Kemokai personally used a firearm,

was a principal in the offense, and committed the offense for the benefit of the Killa Mobb street

gang. On direct appeal of his conviction, the California Court of Appeal laid out the following

facts underlying the charges against Kemokai and the evidence presented at the joint trial:

1 Rick Hill is substituted for Ron Rackley as Warden, Folsom State Prison. FED. R.

CIV. P. 25(d).

A

Charged Offenses

The victim and his friends were at the Shell station to pump gas after attending a

local party. At the gas station, one of the victim’s friends saw a black Dodge Charger

and a green Ford Taurus. Associated with the black Dodge Charger were two

men—Christian (wearing an orange shirt and white and orange hat) and Whitfield

(wearing a purple shirt with no other shirt underneath the purple one). Both men had

guns, one of which looked like a “.380.” Christian had a verbal altercation with the man

sitting in the green Taurus and then chased off the Taurus while waving a gun. One of

the victim’s friends heard Christian and Whitfield saying, “‘We Killas out here.’”

After the altercation between Christian and the occupant of the Taurus, the victim

(who had just finished paying for his gasoline), was walking back to his own car and was

approached by Christian. Christian asked where the victim was from, and the victim

responded, “‘San Francisco.’” Christian then said “his gang[‘s] name,” which was two

syllables,FN1 and hit the victim “pretty hard” in the head, knocking him temporarily

unconscious.

FN1. A friend of the victim, who was at the beating, recalled someone yelling

out “Killa Mobb” that night.

Within seconds, a group of people surrounded the victim and were attacking “like

a pack” of “hyenas on him.” The attackers included Christian, Kemokai, Whitfield,

Cornelius, Demetrius Royster, Drew Dotson,FN2 and Ravneel Atwaal, the latter who was

granted use immunity for his trial testimony. Atwaal was portrayed at trial by the

defense as a rich boy who lived in a nice suburban neighborhood and drove a Lexus.

Another Killa Mobb member, Richard Lee, also was in the group who surrounded the

victim and had a gun. Atwaal did not see Lee beat the victim or use the gun on the

victim, although one Rafael Simpson saw Lee beating the victim with Lee’s own gun.FN3

FN2. Royster and Dotson were charged with crimes relating to the beating of

the victim but neither of them are parties to this appeal.

FN3. Simpson had been a member of Killa Mobb and was with the attackers at

the Shell gas station. He denied hitting or kicking anybody that night. He

saw Christian start the fight by pistol whipping the victim in his face.

When shown a video of the beating at trial, Simpson identified Cornelius

as the man with the purple short-sleeved shirt over a long-sleeved white

shirt. The man wearing that clothing can be seen on the video kicking the

victim in the head. Simpson had been jumped out of Killa Mobb at the

time of the Shell gas station beating. He left Killa Mobb because the gang

was “[a]lways fighting” and that lifestyle “wasn’t for [him].”

Part of the group beating that was captured on video was played at trial. Atwaal

also testified to what he saw on the video. At one point in the beating, Christian was

outside the circle of attackers, but then he worked his way back in by shoving others out

2

of the way. Christian lifted his arm over his head and swung downward toward the

victim. The victim tried to roll away from the attack, but Christian and Kemokai pursued

him. Christian slipped on the wet concrete but got back up and kicked the victim in the

head. After Whitfield repeatedly stomped on the victim and walked away, Kemokai hit

the victim in the upper body/head area with two overhead, heavy blows. Kemokai,

Christian, and Cornelius searched the victim. Christian pistol whipped the victim in the

head. Christian fled, leaving Cornelius and Kemokai with the victim.FN4 Cornelius

kicked the victim’s head and walked away, while Kemokai stood motionless over the

victim. Kemokai pulled out a firearm from his waistband or pants, raised the firearm

over his head, and delivered one blow to the victim’s head with the firearm. The victim’s

body jerked upward.

FN4. Christian’s hat came off during the beating, and Simpson picked it up.

As a result of the beating, the victim had multiple lacerations to his head and face,

a fracture to the upper jaw, and was at risk of a concussion and serious neck injury.

Before the attack, the victim had on him his cell phone, a wallet, and a digital

camera. After the attack, he was missing his cell phone and camera.

B

Investigation Of The Shell Gas Station Beating

Metro PCS cell phone records were recovered from some Killa Mobb members

involved in the beating. Some text messages sent after the beating stated things like “‘we

shot up that shit, killa,’” “[t]hey got five people now,” “[s]top texting mother fuckers.

Stay focused.”

Eleven days after the beating, police found Lee driving a car, and Lee correctly

told police that they would find his .380-caliber gun in the pouch behind the front

passenger seat. The gun was loaded and included one CCI brand round. Police went to

Whitfield’s house to conduct a search because police had overheard Whitfield telling

another suspect in a police interview room that they had hidden something in Whitfield’s

couch. That something turned out to be nine .380-caliber live ammunition rounds,

including four rounds of the CCI brand.

C

Gang Evidence

Sacramento Police Department Detective Brian Bell was the lead investigator and

was also the People’s expert on street gangs in Sacramento’s north area. Killa Mobb’s

primary activities included “burglaries, robberies, shootings, [and] unlawful gun

possession.” He based this opinion on his eight and one-half years as a police officer,

two and one-half years as a gang detective, being the lead investigator in this case, being

the lead investigator on at least 30 other gang crimes, and assisting on 60 other gang

crime investigations, reviewing police data bases “for informational purposes to gather ...

information about Killa Mobb,” being in daily contact with gang members, including at

least 15 members of Killa Mobb that included “conversations” with Killa Mobb members

3

and associates about that gang’s “culture and crimes,” and viewing MySpace pages that

included photographs of gang members with messages stating what gang a certain person

was in. Some of these MySpace pages included photographs of Lee, Whitfield,

Christian, Dotson, Cornelius, and Royster.

According to certified documents, Killa Mobb member minor J.D. was charged

with burglary in December 2006 and admitted to battery in January 2007, “a reasonably

related offense” to the burglary. According to other certified documents, minor C.B.

admitted in November 2007 to possession of a concealable firearm by a minor. One of

his conditions of probation was not to knowingly associate with gangs and to tell the

probation officer of his street moniker. During a conversation, C.B. told Detective Bell

he was a member of Killa Mobb at the time of this crime.

The parties stipulated that Lee had been convicted of “assault with a firearm” that

occurred during the second half of 2008 and he admitted that crime was committed for

the benefit of or in association with Killa Mobb.

In mid-October 2008, Atwaal and other Killa Mobb members shot at an occupied

car at an am/pm market in an incident in which Killa Mobb members were the

aggressors.

People v. Cornelius, No. C073004, 2016 WL 5112052, at *1-3 (Cal. Ct. App. Sept. 21, 2016).

At the conclusion of trial, Kemokai’s jury found him guilty of attempted murder,

mayhem, assault with a firearm, and grand theft from a person, a lesser-included offense to the

charged robbery.2 Kemokai’s jury also found true the gang and firearm enhancements. The trial

court sentenced Kemokai to 30 years’ imprisonment.3

Through counsel, Kemokai appealed his conviction, arguing that: 1) the court

prejudicially erred in refusing to bifurcate trial of the gang enhancement allegations from the

trial of the charged offenses; 2) the attempted murder conviction must be reversed because there

was legally insufficient evidence that Kemokai acted with the specific intent to kill; 3) the

2 Another jury found Christian guilty of the same crimes. A third jury found

Cornelius guilty of attempted murder, assault with a firearm, and grand theft from a person, a

lesser-included offense to the charged robbery. A fourth jury found defendant Xavier Whitfield

guilty of assault with a firearm. The juries also found true the gang and firearm enhancements.

3 Christian was also sentenced to 30 years’ imprisonment. The trial court

sentenced Cornelius and Whitfield to imprisonment terms of 20 and 15 years, respectively.

4

evidence presented at trial was insufficient to sustain the criminal street gang enhancement

because the prosecution failed to prove that Killa Mobb was a criminal street gang within the

meaning of California law; and 4) trial counsel was ineffective for failing to object to

unauthenticated photos. The Court of Appeal unanimously affirmed the judgment against

Kemokai in a reasoned, unpublished opinion issued on September 21, 2016. Cornelius, 2016

WL 5112052, at *15.4 Kemokai petitioned for review in the California Supreme Court, which

was summarily denied on January 11, 2017. Docket No. 20-7.

Kemokai then timely filed a Petition for a Writ of Habeas Corpus in this Court on August

15, 2017. Docket No. 1 (“Petition”); see 28 U.S.C. § 2244(d)(1),(2).

II. GROUNDS/CLAIMS

In his pro se Petition before this Court, Kemokai argues that: 1) the trial court

erroneously denied Kemokai’s request for a foundational hearing on the proffered gang expert

testimony; 2) the trial court erred in denying Kemokai’s motion to bifurcate trial on the gang

enhancement allegations from the trial of the charged offenses; 3) the trial court committed

reversible error by defining a primary activity as gun possession with respect to whether Killa

Mobb was a criminal street gang; 4) trial counsel was ineffective for failing to object to

unauthenticated photos showing gang symbols; 5) the evidence presented for the attempted

murder conviction was legally insufficient to show that Kemokai acted with the specific intent to

kill; 6) the trial court erred by failing to grant the motion for a new trial based on prejudicial

4 The Court of Appeal also affirmed the judgments as to Christian and Whitfield.

As to Cornelius only, the appellate court struck the 10-year consecutive prison term for personal

use of a firearm because Cornelius did not personally use a firearm. Cornelius, 2016 WL

5112052, at *15.

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juror misconduct; and 7) Kemokai’s conviction should be reversed due to the cumulative effect

of the trial court’s errors.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that

contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that

are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives

at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The term unreasonable is a

common term in the legal world. The Supreme Court has cautioned, however, that the range of

reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly

established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating

whether a rule application was unreasonable requires considering the rule’s specificity. The

more general the rule, the more leeway courts have in reaching outcomes in case-by-case

determinations.”).

The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)

“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the

relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon

the states; that is, the decision must be based upon constitutional grounds, not on the supervisory

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power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where

holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it

cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”

Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that the Petition raises issues of the proper application of state law, they are

beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.

Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was

correctly applied). It is a fundamental precept of dual federalism that the states possess primary

authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and

application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state

court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536

U.S. 584 (2002).

In applying these standards on habeas review, this Court reviews the “last reasoned

decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)

(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication

on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under

the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner

rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003).

7

IV. DISCUSSION

Ground 1. Lack of Foundational Hearing on Gang Expert Testimony

Under California law, expert testimony on criminal street gangs is admissible to prove

the elements of the criminal street gang substantive offense and the gang enhancement. See

People v. Jasso, 150 Cal. Rptr. 3d 464, 484 (Cal. Ct. App. 2012) (relying on expert testimony in

part to support a conviction for the substantive offense); see also People v. Hernandez, 94 P.3d

1080, 1085 (Cal. 2004) (“In order to prove the elements of the criminal street gang enhancement,

the prosecution may, as in this case, present expert testimony on criminal street gangs.”).

Kemokai nonetheless argues that the trial court erred in admitting gang expert testimony in his

case without holding a foundational hearing to assess its reliability and the grounds upon which

it was based. The Court of Appeal found the claim forfeited and rejected it on that basis:

Whitfield contends the trial court erred in denying his request for an in limine

hearing pursuant to Evidence Code section 402 (the procedure for determining

foundational and other preliminary facts) and Evidence Code section 352 to determine

whether at trial Detective Bell would rely on inadmissible and/or unduly prejudicial

hearsay to support his opinion that certain offenses constituted the primary activities of

Killa Mobb. Defendants Christian and Kemokai join in these contentions. As we explain

below, they have forfeited this contention because, one, the trial court never denied such

a request and two, defendants never objected when the testimony was proffered, as they

were required to do.

One, Whitfield’s request in the trial court for a section 402 hearing was to

preclude Detective Bell from relying on hearsay statements to establish Killa Mobb’s

predicate offenses. But on appeal, Whitfield’s argument is not about the predicate

offenses, but rather, about the primary activities of Killa Mobb, which goes to proving a

different aspect of the gang enhancement. Having not raised, in the trial court, the issue

he now puts forth on appeal, he has forfeited it. (Evid. Code, § 353; People v. Clark

(1992) 3 Cal.4th 41, 127-128.)

And two, Whitfield never got a ruling on his motion, even if it could have been

construed as raising an issue about precluding Detective Bell from testifying regarding

hearsay in forming his expert opinion about the primary activities of Killa Mobb.

Specifically, Whitfield initially raised in his trial brief the issue of precluding Detective

Bell from relying on hearsay statements to prove the predicate offense part of the gang

enhancement. The court deferred ruling on this motion and told Whitfield’s trial counsel

8

to raise objections during direct examination of the gang expert. During trial, Detective

Bell testified that Killa Mobb’s primary activities included “burglaries, robberies,

shootings, [and] unlawful gun possession.” Detective Bell also explained the basis for

his opinion. There was no objection during this testimony. Thus, Whitfield has forfeited

his contentions. (See People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3 [after an in

limine motion, the party seeking exclusion must object at the time evidence is offered to

preserve the issue for appeal].)FN5

FN5. To the extent Whitfield claims his trial counsel was ineffective for failing

to object at the time of the trial testimony, we disagree because it was not

objectionable, as we explain in part IID below.

Cornelius, 2016 WL 5112052, at *4.

Because the state appellate court found this claim forfeited under California’s

contemporaneous objection rule, it is also procedurally defaulted from federal habeas review.

Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (a federal court will not review a claim if

the state court’s rejection of the claim rests on a state law ground that is independent of the

federal question and adequate to support the judgment). The Ninth Circuit has repeatedly

recognized and applied the California contemporaneous objection rule in affirming denial of a

federal habeas petition on grounds of procedural default where there was a complete failure to

object at trial. See, e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v.

Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004). Because the state appellate court held that this

claim was forfeited under California’s contemporaneous objection rule, it is deemed

procedurally defaulted in these proceedings as well and rejected on that basis.

Moreover, to the extent that Kemokai raises an ineffective assistance claim associated

with counsel’s failure to object to the lack of hearing, such claim also fails. As discussed more

fully with respect to Ground 4, infra, to demonstrate ineffective assistance of counsel under

Strickland v. Washington, a defendant must show both that counsel’s performance was deficient

9

and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). Here,

however, Kemokai fails to show that counsel was ineffective or that he was prejudiced by

counsel’s omission because, as the Court of Appeal reasonably concluded, the gang expert

testimony was not objectionable. The record fully supports the Court of Appeal’s determination

that Detective Bell’s testimony was not based on inadmissible hearsay. As the appellate court

explained:

Here, as we have noted, Detective Bell testified that in his expert opinion, the

primary activities of Kill Mobb included “burglaries, robberies, shootings, [and] unlawful

gun possession.” He based his opinion on his eight and one-half years as a police officer,

two and one-half years as a gang detective, being the lead investigator in the current case,

being the lead investigator on at least 30 other gang crimes and assisting on 60 other gang

crime investigations, reviewing police data bases “for informational purposes to

gather . . . information about Killa Mobb,” being in daily contact with gang members,

including at least 15 members of Killa Mobb, that included “conversations” with Killa

Mobb members and associates about that gang’s “culture and crimes,” and viewing

MySpace pages that included photographs of gang members.

Detective Bell did not convey any out-of-court statements to the jury, but rather,

relied on some hearsay evidence (for example, conversations with gang members and/or

other police offers) as well as his training and expertise to form his expert opinion. This

does not violate the confrontation clause. (See United States v. Kamahele (10th Cir.

2014) 748 F.3d 984, 1000 [“Introduction of opinion testimony does not violate the

Confrontation Clause when the experts rely on their independent judgment—even when

this independent judgment is based on inadmissible evidence . . ., [b]ut if the expert is

simply ‘parrot[ing] “out-of-court testimonial statements of cooperating witnesses and

confidential informants directly to the jury in the guise of expert opinion,” ‘the testimony

would be inadmissible”]; United States v. Johnson (4th Cir. 2009) 587 F.3d 625, 635

[where “the expert is, in essence, giving an independent judgment,” “applying his

training and experience to the sources before him and reaching an independent

judgment,” and not “merely acting as a transmitter for testimonial hearsay,” “there will

typically be no Crawford problem”].) Nor did his viewing and testimony of the

photographs on MySpace implicate confrontation clause concerns. MySpace pages are

not testimonial, lack all indicia of formality, and a person making statements on MySpace

would not have believed they were participating in the presenting of evidence for a

criminal trial.

In sum, there were no out-of-court testimonial statements relied upon or parroted

by Detective Bell in reaching his independent judgment about what he considered were

the primary activities of Killa Mobb. As such, there was no confrontation clause

violation.

10

Cornelius, 2016 WL 5112052, at *6-7.

Accordingly, Kemokai is not entitled to relief on this ground in any event.

Ground 2. Failure to Bifurcate Gang Enhancement Allegations from Charged Offenses

Kemokai next contends that the trial court erred by failing to bifurcate the gang

allegations from the underlying offenses, and the admission of evidence of gang violence

violated his due process rights. The Court of Appeal considered and rejected this claim on direct

appeal as follows:

Defendants Christian, Kemokai, and Whitfield contend the trial court erred in

denying their motion to bifurcate the gang enhancements from the trial on the substantive

offenses. The trial court denied the motion because “the entire motivation for the

assaults . . . in this case [is] gang related. It seems almost impossible to therefore sever

the gang allegations and to try the particular case without at least the cross-admissibility

of the . . . gang allegations.” The court acted well within its discretion in denying the

motion based on the facts available to the court at the time the motion to bifurcate was

denied. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [standard of review]; People

v. Avila (2006) 38 Cal.4th 491, 575 [a court reviews the motion based on the facts as they

appeared at the time the court ruled on the motion].) We explain.

“[T]he criminal street gang enhancement is attached to the charged offense and is,

by definition, inextricably intertwined with that offense. So less need for bifurcation

generally exists with the gang enhancement than with a prior conviction allegation.”

(People v. Hernandez, supra, 33 Cal.4th at p. 1048.) Moreover, gang evidence is often

relevant to “identity, motive, modus operandi, specific intent, means of applying force or

fear, or other issues pertinent to guilt of the charged crime.” (Id. at p. 1049.) When this

is the case, a defendant seeking bifurcation bears the burden “ ‘to clearly establish that

there is a substantial danger of prejudice requiring that the charges be separately tried.’ ”

(Id. at p. 1051.)

Here, when the court denied bifurcation, the court had strong evidence before it

that the motive for the beating was gang related. At the preliminary hearing, Detective

Bell testified that prior to the beating, one of the attackers asked the victim where he was

from. The victim responded he was from the Bay Area and added, “you guys are some

suckas out here.” The attackers then began beating the victim, while one of them

“announc[ed] Killa Mob[b] gang.” The beating was a means of establishing respect for

Killa Mobb because if someone in the gang is disrespected and the gang does not act

upon that, the gang would be perceived as weak. Thus, the gang evidence was relevant

to explain motive and the violent reaction based on the victim’s verbal slight. The trial

court therefore acted within its discretion in denying the motion to bifurcate the gang

enhancement.

11

Cornelius, 2016 WL 5112052, at *3.

The United States Supreme Court has not determined that a criminal defendant has a

federal constitutional right to bifurcation. See Spencer v. Texas, 385 U.S. 554, 565-66 (1967)

(“Two-part jury trials are rare in our jurisprudence; they have never been compelled by this

Court as a matter of constitutional law, or even as a matter of federal procedure”); Marshall v.

Lonberger, 459 U.S. 422, 438 n.6 (1983) (reaffirming Spencer); see also Collins v. Runnels, 603

F.3d 1127, 1132-33 (9th Cir. 2010) (holding there is no clearly established federal law “requiring

severance where defendants present mutually antagonistic defenses”). “The simultaneous trial of

more than one offense must actually render petitioner’s state trial fundamentally unfair and

hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate.”

Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (internal quotation marks and

citation omitted); see also United States v. Lane, 474 U.S. 438, 446 n.8 (1986) (“misjoinder

would rise to the level of a constitutional violation only if it results in prejudice so great as to

deny a defendant his Fifth Amendment right to a fair trial”).

“In evaluating prejudice, the [federal habeas court] focuses particularly on

cross-admissibility of evidence and the danger of ‘spillover’ from one charge to another,

especially where one charge or set of charges is weaker than another.” Davis v. Woodford, 384

F.3d 628, 638 (9th Cir. 2003). Undue prejudice exists “whenever joinder of counts allows

evidence of other crimes to be introduced in a trial where the evidence would otherwise be

inadmissible.” Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). The petitioner bears

the burden of proving that she is entitled to federal habeas relief on this ground. Davis, 384 F.3d

at 638.

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Furthermore, even assuming that the denial of the bifurcation motion and resulting

admission of the gang evidence in the trial on the substantive offenses violated clearly

established Supreme Court law, that error is subject to harmless error analysis. See Bean v.

Calderon, 163 F.3d 1073, 1086 (9th Cir. 1998) (applying harmless-error analysis to due process

violation arising from misjoinder); Ghent v. Woodford, 279 F.3d 1121, 1127 (9th Cir. 2002)

(same arising from erroneous admission of evidence). Thus, the petitioner must establish that

“the impermissible joinder had a substantial and injurious effect or influence in determining the

jury’s verdict.” Davis, 384 F.3d at 638 (internal quotations and citation omitted).

Here, to the extent Kemokai contends that the trial court abused its discretion under

California law by failing to bifurcate the gang enhancement allegations, such claim is not legally

cognizable on federal habeas review. See Park v. California, 202 F.3d 1146, 1150 (9th Cir.

2000) (alleged violation of California law due to misjoinder not cognizable in federal court); see

also Grisby v. Blodgett, 130 F.3d 365, 270 (9th Cir. 1997) (“We do not depend on state law

governing severance in state trials.”). Moreover, Kemokai fails to show that the failure to

bifurcate the gang enhancements and the subsequent introduction of gang evidence at trial

rendered his trial fundamentally unfair. As the Court of Appeal explained, the gang evidence

was largely cross-admissible and relevant as to the substantive charges. The Court of Appeal’s

conclusion is both reasonable and fully supported by the record. Kemokai is not entitled to relief

on this ground either.

Ground 3. Instructional Error as to Criminal Street Gang Definition

Kemokai additionally avers that the trial court prejudicially erred in instructing the jury

as to the criminal street gang definition. Namely, the court instructed the jury that possession of

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a firearm qualifies as a primary activity for purposes of the gang enhancement. As the Court of

Appeal recognized, the trial court erred in its instruction because it did not specify that only

prohibited possession of a firearm qualifies as a primary activity. Nonetheless, the Court of

Appeal concluded that Kemokai was not prejudiced by the error. Cornelius, 2016 WL 5112052,

at *5.

Because jury instructions in state trial are typically matters of state law, federal courts are

bound by a state appellate court’s determination that a jury instruction was not warranted under

state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has

repeatedly held that “a state court’s interpretation of state law, including one announced on

direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); see

also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error,

therefore, “does not alone raise a ground cognizable in a federal habeas proceeding.”

Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).

A challenged instruction violates the federal constitution if there is a “reasonable

likelihood that the jury has applied the challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380

(1990). The question is whether the instruction, when read in the context of the jury charges as a

whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471

U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary

that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);

Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the

14

law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the

subject in depth).

It is well-established that not only must the challenged instruction be erroneous but it

must violate some constitutional right, and it may not be judged in artificial isolation but must be

considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at

72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is

whether there is a reasonable likelihood that the jury applied the challenged instruction in a way

that violates the constitution and that the category of infractions that violate “fundamental

fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in

the Bill of Rights, the Due Process clause has limited operation.” Id.

The Due Process Clause of the Fourteenth Amendment requires the prosecution to prove

every element charged in a criminal offense beyond a reasonable doubt. See In re Winship, 397

U.S. 358, 364 (1970). “[T]he Constitution does not require that any particular form of words be

used in advising the jury of the government’s burden of proof. Rather, taken as a whole, the

instructions must correctly convey the concept of reasonable doubt to the jury.” Victor v.

Nebraska, 511 U.S. 1, 5 (1994). A federal habeas court “must determine whether there was a

reasonable likelihood that the jury understood the instruction to allow a conviction predicated on

proof that was insufficient to meet the requirements of due process.” Lisenbee v. Henry, 166

F.3d 997, 999 (9th Cir. 1999) (citing Ramirez v. Hatcher, 136 F.3d 1209, 1213 (9th Cir. 1998)).

The question is whether the instruction, when read in the context of the jury charges as a

whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471

U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary

15

that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);

Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the

law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the

subject in depth).

Here, the Court of Appeal agreed that the trial court’s instruction was erroneous. It

nonetheless determined that the error was harmless. The appellate court explained:

For purposes of the gang enhancement, only “prohibited” possession of a firearm

qualifies as a primary activity. (Pen. Code, § 186.22, subds. (f), (e)(31)-(e)(33).) The

instruction here was wrong because it did not specify that only prohibited possession of a

firearm qualified. Nevertheless, there was no prejudice, under either the federal or

state-based standards of review. (Chapman v. California (1967) 386 U.S. 18, 24 [17

L.Ed.2d 705, 710-711] [“before a federal constitutional error can be held harmless, the

court must be able to declare a belief that it was harmless beyond a reasonable doubt”];

People v. Watson (1956) 46 Cal.2d 818, 836 [before a state error can be held harmless,

the court must be able to declare that it is not “reasonably probable that a result more

favorable to the appealing party would have been reached in the absence of the error”].)

The only possession of a firearm as an offense brought up by the prosecutor with respect

to the gang enhancement both at trial and in closing was that of C.B., namely, his illegal

gun possession as a minor. The prosecutor in closing stressed that he had introduced into

evidence certified copies of the juvenile record, showing what the juvenile was

“convicted of” so “[i]t’s just proof beyond anybody’s word, beyond any doubt because

it’s a certified court record.” As even Whitfield points out in his brief, C.B.’s “juvenile

unlawful firearm possession adjudication was the only legitimate evidence of an

enumerated firearm offense.” Thus, where the only evidence of gun possession that the

People relied on at trial and stressed in closing was unlawful gun possession for which

proof was a certified court record that the defense did not rebut, the error was harmless

beyond a reasonable doubt.

Cornelius, 2016 WL 5112052, at *5.

Although the California Court of Appeal applied the Chapman harmless error standard

on direct review, “[b]ecause [Kemokai] seeks federal habeas corpus relief, he must meet the

Brecht standard,” which “‘subsumes’ the requirements that § 2254(d) imposes when a federal

habeas petitioner contests a state court’s determination that a constitutional error was harmless

16

under Chapman.” Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 2198 (2015) (citing Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted) (relief is warranted only where error

had a “substantial and injurious effect or influence in determining the jury’s verdict”); Mays v.

Clark, 807 F.3d 968, 980 (9th Cir. 2015) (“Because it is more stringent, the Brecht test

‘subsumes’ the AEDPA/Chapman standard for review of a state court determination of the

harmlessness of a constitutional violation. A federal habeas court therefore need not formally

apply both the Brecht test and the AEDPA standard; it is sufficient to apply Brecht alone.”).

Therefore, the Court here applies “the Brecht test, but . . . do[es] so with due consideration of the

state court’s reasons for concluding that the error was harmless beyond a reasonable doubt.”

Garcia v. Long, 808 F.3d 771, 782 (9th Cir. 2015).

Although the trial court failed to distinguish between lawful and unlawful gun possession

in its definition of the primary activity element, any possible error did not have a substantial and

injurious effect or influence in determining the jury’s verdict. See Brecht, 507 U.S. at 623. The

record fully supports the Court of Appeal’s determination that the only evidence of gun

possession introduced at trial was unlawful gun possession, and thus it is not reasonably possible

that the jury erroneously relied on lawful gun possession in finding true the primary activity

element of the gang enhancement. Kemokai’s instructional error claim therefore fails.

17

Ground 4. Ineffective Assistance of Trial Counsel–Unauthenticated Photos

Kemokai next contends that trial counsel was ineffective for failing to object to what he

claims were unauthenticated photographs introduced into evidence during the testimony of

Detective Bell that showed people other than Kemokai making gang-related hand signs.

To demonstrate ineffective assistance of counsel under Strickland v. Washington, a

defendant must show both that counsel’s performance was deficient and that the deficient

performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one

in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed by the Sixth Amendment.” Id.

The Supreme Court has explained that, if there is a reasonable probability that the

outcome might have been different as a result of a legal error, the defendant has established

prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.

United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas

petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice

standard is applied and federal courts do not engage in a separate analysis applying the Brecht

harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin

v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective

assistance of counsel claims in a federal habeas proceeding:

The question “is not whether a federal court believes the state court’s

determination” under the Strickland standard “was incorrect but whether that

determination was unreasonable—a substantially higher threshold.” And, because the

Strickland standard is a general standard, a state court has even more latitude to

reasonably determine that a defendant has not satisfied that standard.

18

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.

Ryan, 686 F.3d 758, 775 (9th Cir. 2012).

Thus, Kemokai must show that his trial counsel’s representation was not within the range

of competence demanded of attorneys in criminal cases, and there is a reasonable probability

that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,

474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the

petitioner fails to make a sufficient showing under either of the Strickland prongs. See

Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not

address both prongs if the defendant fails on one).

Here, Kemokai fails to demonstrate that counsel’s inaction demonstrates Strickland

deficiency. As the Court of Appeal reasonably concluded on direct appeal:

Kemokai cannot prove his counsel was ineffective because counsel could have

had a tactical reason not to object: Kemokai was not identified as being in any of these

pictures. Counsel may have reasonably concluded that the pictures helped Kemokai’s

defense because the jury could have believed that Kemokai’s absence from all of these

pictures meant he was not actually a member or associate of Killa Mobb.

Cornelius, 2016 WL 5112052, at *11.

Such conclusion is reasonable and fully supported by the record. Kemokai thus fails to

establish that counsel was ineffective, and he is not entitled to relief on this ground.

Ground 5. Insufficiency of the Evidence as to the Attempted Murder Conviction

Kemokai also argues that there was insufficient evidence presented at trial to support his

conviction for attempted murder because there was no evidence that he intended to kill

Robinson. As articulated by the Supreme Court in Jackson, the federal constitutional standard

for sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable

19

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the

original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This

Court must therefore determine whether the California court unreasonably applied Jackson. In

making this determination, this Court may not usurp the role of the finder of fact by considering

how it would have resolved any conflicts in the evidence, made the inferences, or considered the

evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical

facts that supports conflicting inferences,” this 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 defer to that resolution.” Id. at 326.

It is a fundamental precept of dual federalism that the States possess primary authority

for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).

Consequently, although the sufficiency of the evidence review by this Court is grounded in the

Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set

forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system

is “that a state court’s interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546

U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the

state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be

accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory

authority over state judicial proceedings and may intervene only to correct wrongs of

20

constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith

v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).

Under Jackson, this Court’s role is simply to determine whether there is any evidence, if

accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513

U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a

federal court’s scope of review under Jackson, holding that “a reviewing court may set aside the

jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have

agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). Jackson “makes

clear that it is the responsibility of the jury—not the court—to decide what conclusions should

be drawn from evidence admitted at trial.” Id. Under Cavazos, “a federal court may not

overturn a state court decision rejecting a sufficiency of the evidence challenge simply because

the federal court disagrees with the state court. The federal court instead may do so only if the

state court decision was ‘objectively unreasonable.’” Id. (quoting Renico v. Lett, 559 U.S. 766,

773 (2010)).

The Court of Appeal considered and rejected Kemokai insufficiency of the evidence

claims on direct appeal as follows:

Christian and Kemokai contend insufficient evidence supported their convictions

for attempted murder because there was no evidence they intended to kill the victim. Not

so.

The victim testified Christian instigated the beating by hitting him on the head,

rendering him temporarily unconscious. In addition, the part of the group beating

captured on video showed Christian and Kemokai actively involved in beating the victim

in vulnerable places on his body when he was on the ground and defenseless.

Specifically, Christian lifted his arm over his head and swung downward toward the

victim. The victim tried to roll away from the attack, but Christian and Kemokai pursued

him. Christian kicked the victim in the head. Kemokai hit the victim in the upper

body/head area with two overhead, heavy blows. Christian pistol-whipped the victim in

the head after he had been searched for his possessions. After Christian fled, Kemokai

21

pulled out a firearm, raised it over his head, and hit the victim’s head. As a result of all

this trauma, the victim had multiple lacerations to his head and face, a fracture to the

upper jaw, and was at risk of a concussion and serious neck injury.

Christian’s and Kemokai’s repeated kicks, blows, and pistol whips to the victim’s

head, a vulnerable spot for death, at a time when he was defenseless were more than

sufficient to demonstrate they intended to kill the victim. (People v. Lasko (2000) 23

Cal.4th 101, 112 [“the evidence strongly suggested an intent to kill” where the defendant

hit the victim multiple times on the head with extreme force, causing extensive and

multiple fractures to the head area].)

Cornelius, 2016 WL 5112052, at *9.

Under California law, to prove attempted murder, there must be express malice, i.e., the

intent to kill. People v. Stone, 92 Cal. Rptr. 3d 362, 368 (Cal. 2009) (quotations and citation

omitted). The requisite intent to kill is most often inferred from the defendant’s acts and the

circumstances of the crime because “[t]here is rarely direct evidence of a defendant’s intent.”

People v. Smith, 37 Cal. Rptr. 3d 163, 169 (Cal. 2005). Moreover, evidence of motive–although

not required–“is often probative of intent to kill.” Id. at 168.

In support of his claim, Kemokai avers:

If Kemokai wanted to kill Robinson, he could have simply squeezed the trigger.

But he didn’t. So, the evidence here–that, after the melee, rather than shooting at

Robinson, Kemokai struck him in the fact one time with his gun as if to knock him out–

showed, at best, a conscious disregard for life or implied malice. There was no

substantial evidence that Kemokai acted with express malice–i.e., with the specific intent

to kill Robinson or with a “substantial certainty” he would actually cause Robinson’s

death.

But in rejecting on direct appeal Kemokai’s claim that the evidence was insufficient to

prove that he intended to kill Robinson, the Court of Appeal’s application of the Jackson

standard was not objectively unreasonable. When viewing the evidence in the light most

favorable to the prosecution and resolving all conflicts in the evidence in favor of the jury’s

verdict, a rational juror could have determined beyond a reasonable doubt that Kemokai’s

22

actions evinced the requisite intent to kill. While it may have been possible fo the jury to come

to another conclusion, all of the evidence in support of his claim was before the jury for its

assessment. This Court is precluded from re-weighing the evidence or re-assessing witness

credibility. Schlup, 513 U.S at 330; Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004).

Kemokai is thus not entitled to relief on this claim.

Ground 6. Prejudicial Juror Misconduct

Kemokai further contends that numerous instances of prejudicial juror misconduct

deprived him of a fair trial, warranting habeas relief. The Court of Appeal considered and

rejected the allegations of misconduct as follows:

We take each of the seven misconduct allegations in turn, keeping in mind the

following standards:

“When a party seeks a new trial based on juror misconduct, the trial court must

determine from admissible evidence whether misconduct occurred and, if it did, whether

the misconduct was prejudicial. [Citation.] Prejudice is presumed where there is

misconduct. This presumption can be rebutted by a showing no prejudice actually

occurred or by a reviewing court’s examination of the entire record to determine whether

there is a reasonable probability of actual harm to the complaining party.” (People v.

Loot (1998) 63 Cal.App.4th 694, 697.) “The moving party bears the burden of

establishing juror misconduct.” (Donovan v. Poway Unified School Dist. (2008) 167

Cal.App.4th 567, 625.)

“We review independently the trial court’s denial of a new trial motion based on

alleged juror misconduct. [Citation.] However, we will ‘“accept the trial court’s

credibility determinations and findings on questions of historical fact if supported by

substantial evidence.”’” (People v. Gamache (2010) 48 Cal.4th 347, 396.)

A

Juror No. 1’s Failure To Disclose That His Brother-In-Law

Was Killed By A Drunk Driver

Whitfield contends that Juror No. 1 committed prejudicial misconduct by

“willfully conceal[ing]” that his brother-in-law was killed by a drunk driver. The trial

court found misconduct but was “not willing to jump to the conclusion that it was

intentional concealment designed to mislead.” As our court has noted, “[i]n evaluating

claims of intentional concealment by jurors during voir dire, ‘[w]e accept the trial court’s

credibility determinations and findings on questions of historical fact if supported by

23

substantial evidence.’ [Citations.] With these principles in mind, we consider defendants’

claims of misconduct by Juror No. [1].” (People v. Tuggles (2009) 179 Cal.App.4th 339,

371-372.)

Here, there was substantial evidence that Juror No. 1 did not intentionally conceal

this information. The at-issue voir dire question to which Juror No. 1 answered “No” in

April 2010 was the following: “Have you, a close friend or relative ever been a victim of

a crime? If yes, state the nature of the crime(s).” On Juror No. 1’s Facebook page, there

was a post in May 2010 stating the following: “It’s been said that the first year following

the sudden death of a loved one is the most difficult, THAT’S WHY MY PAGE IS

DEDICATED TO MY SISTER ALICIA IN HONOR OF MOTHERS/FATHERS DAY,

my sister lost her husband by a selfish act [of] a DRUNK DRIVER rip Arnold . . . Alicia

you and you[ ]r[ ] five girls are SURVIVORS . . . THANK YOU GOD for giving them

the strength . . .” In June 2012, Juror No. 1 posted, “me and Arnold good times . . . in my

. . . heart forever . . . rip.”

These posts do not indicate the drunk driver who killed Juror No. 1’s

brother-in-law was ever charged with a crime. Thus, Juror No. 1 may have simply

categorized this incident as a traffic fatality or traffic accident instead of a criminal act.

Thus, we agree with the trial court there was no evidence that his failure to disclose the

killing of his brother-in-law by a drunk driver was an intentional concealment designed

to mislead.

B

Juror No. 1’s Postings On Facebook About This Trial

During trial, the court instructed jurors, “do not talk about the case . . . with

anyone . . . . Do not share information about the case in writing, by e-mail or on the

Internet.”

During trial, Juror No. 1 stated on Facebook that he was on jury duty with

postings such as the following: “Jury duty week three and we still don’t have all the panel

selected”; “After all the stupid excuses and people saying they hate police and black

people to get off jury duty hmmmm. . . . Maybe [I] should have c[o]me up with a lame

excuse also”; “my case was suppose[d] to last six weeks and we[‘]re on week three now

and no end in sight[,] this sucks”; “[l]ooks like a two week stay for me @ jury duty . . .”;

“Fourth week of jury duty and six weeks to go LUCKY ME . . .”; “getting ready for jury

duty”; “Week 5 of jury duty”; “Jury duty week six . . .”; and “Back to jury duty can it get

any more BORING than going over metro pcs phone records . . . uuuggghhhhhh.”

At a hearing about these Facebook entries, Juror No. 1 testified that when he

made these posts, he did not think “at the time” he was violating the court’s admonition

because he did not think he was talking about the case. He “really didn’t read the

comments” that people wrote in response to his posts. The court found that Juror No. 1

was “credible” and that he was “doing [his] best to be open and honest . . . .” The court

nevertheless found misconduct, but also found no “actual bias” on the part of Juror No. 1

and no “inherent[ ] prejudice[ ] as a result of that misconduct.”

24

“[T]he misconduct of discussing the case with nonjurors while the case is

pending” “raises the presumption of prejudice,” but “[t]his presumption of prejudice

‘“may be rebutted by an affirmative evidentiary showing that prejudice does not exist or

by a reviewing court’s examination of the entire record to determine whether there is a

reasonable probability of actual harm to the complaining party [resulting from the

misconduct]. . . .”’” (In re Hitchings (1993) 6 Cal.4th 97, 119.)

We agree with the trial court there was no prejudice on our de novo review. Most

of these postings were simply statements that Juror No. 1 was still on jury duty and

revealed nothing about the evidence or his thoughts on the case. One that was not

(expressing his boredom with the testimony about the phone records) actually cut against

the prosecution, who was the party who presented those records.

Defendants claim that the other ones that went beyond simply stating he was on

jury duty “demonstrate[d] mockery and even contempt for the judicial process.” These

included “Maybe [I] should have c[o]me up with a lame excuse also” to get out of jury

duty, “no end in sight[,] this sucks,” and “six weeks to go LUCKY ME . . . .” Fairly

understood, these comments expressed frustration at the length of the case. There was no

evidence Juror No. 1 took out this frustration on defendants. Instead, quite the opposite.

The jury acquitted four defendants (three appellants and one codefendant) of various

charges, demonstrating there was no reasonable probability of actual harm based on his

Facebook postings.

C

Juror No. 1 Discussing On Facebook Where The Trial Was Being Held And

“Arranging” For An Acquaintance To View The Trial

Whitfield contends that Juror No. 1 “may have misled the Court” by arranging a

court visit for a nonjuror to watch the trial and then agreeing to lie about knowing the

nonjuror when she came to court.

The facts behind the planned visit were these. On May 28, 2010, a female

acquaintance of Juror No. 1 initiated a Facebook conversation with him and asked him

the “address” of the trial and asked how long he had been on the case. Juror No. 1

responded “six weeks . . . the address is 720 9th street . . . Court house is closed until

Tuesday” and later added it was department 31 on level 4. The female acquaintance

responded, “Thank you. Can you talk about the case?” Juror No. 1 replied, “sorry [I]

can’t talk about the case . . . btw if u come to the courtroom [I] have [to] act like [I] don’t

know you. . . .” The female acquaintance responded, “That’s what I thought, I was

making sure :) Okay THANK YOU for the info! And don’t worry about it, I

understand!”

The trial court found that Juror No. 1 had not misled the court, and that finding

was supported by substantial evidence. (See People v. Gamache, supra, 48 Cal.4th at p.

396 [standard of review].) Juror No. 1 told the acquaintance only where the trial was and

then correctly informed her that he could not talk about the case. In regard to Juror No. 1

having to act like he did not know her, Whitfield contends he “agreed to lie and, if

25

queried, to denying knowing [her].” There is no evidence this acquaintance ever came to

court and had any interaction with Juror No. 1.

To the extent Whitfield points to the following testimony from Juror No. 1 that

the court solicited out of the presence of the jury and audience members on May 18,

2010, about somebody Juror No. 1 knew in the audience, that audience member was

male, so it could not have been the same person as the Facebook acquaintance. In any

event, the evidence about the male acquaintance provides additional support for the

court’s credibility determination about Juror No. 1. As to the male acquaintance who

showed up on May 18 and “approached [Juror No. 1],” the court found the situation

“truly innocuous.” Juror No. 1 testified this was somebody with whom he worked

previously, he did not know that his former coworker was in the audience until his former

coworker approached him, this was the first time he had seen his former coworker in

three or four years, he was not going to hold anything against anybody in this case, and

that he would be able to listen to the evidence here and decide the case just on that

evidence.

D

Juror No. 1 Discussing Postverdict Hearing Testimony

Whitfield contends that Juror No. 1 committed misconduct by violating the trial

court’s admonition not to discuss any postverdict hearing testimony. We disagree.

During the postverdict hearing on juror misconduct, jurors were separately

questioned, and Juror No. 1 was “admonish[ed] . . . not to discuss anything about our

conversation with anyone.” Whitfield contends Juror No. 1 defied this admonition.

The fatal problem for Whitfield’s contention is it is based on inadmissible hearsay

statements made to the trial court by Christian’s trial counsel. Specifically, Christian’s

trial counsel told the court that Juror No. 5 had called someone in his office and told that

person Juror No. 1 had followed Juror No. 5 to her car, and “continually asked [Juror No.

5] what was going on and what kind of questions she received here in Court. [Juror No.

5] felt uncomfortable and told [Juror No. 1] that, The Judge specifically said we can’t talk

about this, and his response was that, It’s okay, [i]t’s all over, you can talk about it.”

These “[u]nsworn statements cannot be used to establish juror misconduct.” (People v.

Vallejo (2013) 214 Cal.App.4th 1033, 1043.)

E

Receipt Of Outside Information Regarding Killa Mobb By Juror No. 1

Whitfield and Cornelius contend that Juror No. 1 committed misconduct by

concealing receipt of outside information regarding Killa Mobb. This contention is based

on a declaration signed by Juror No. 5 dated August 10, 2010. In it, Juror No. 5 stated as

follows: “after the jury verdict was delivered, the foreman, juror number 1, stated that a

co-worker had explained to him after the trial that he knew ‘Killa Mobb’ from high

school and that they were a gang and that the guys in this case were bad guys.”

26

The fatal problem with this contention is that defendants speculate that Juror No.

1 received this information about Killa Mobb before or during trial. However, Juror No.

5’s declaration states that the information about Killa Mobb was relayed to Juror No. 1

“after the trial.” A reasonable interpretation of the phrase “after the trial” is postverdict.

With this interpretation, there was no misconduct because Juror No. 1’s receipt of this

information postverdict “does not show bias during the trial, deliberations, and verdict.”

(In re Carpenter (1995) 9 Cal.4th 634, 657.) As defendants acknowledge, the trial court

did not explore this topic (Juror No. 1’s receipt of information about Killa Mobb) in the

postverdict juror voir dire. “[T]he initial burden is on defendant to prove the misconduct.

[Citation.] We will not presume greater misconduct than the evidence shows.” (In re

Carpenter, at p. 657.) Here, defendants have not shown any misconduct because they

have not established that Juror No. 1 received outside information about Killa Mobb at

any time other than postverdict.

F

Allegation That Juror No. 8 Concealed Her Inability To Abide By The

Standard Of Proof Beyond A Reasonable Doubt

Whitfield and Cornelius contend Juror No. 8 committed misconduct because she

was unable to follow the court’s instruction requiring the People prove defendants’ guilt

beyond a reasonable doubt and that she concealed her inability to follow that instruction.

Defendants have not carried their initial burden to prove misconduct because their

argument is not supported by the facts, and the trial court specifically found Juror No. 8

credible. (In re Carpenter, supra, 9 Cal.4th at p. 657.) We explain below.

Juror No. 5 testified at a postverdict hearing that Juror No. 8 made a comment at

some point “towards the beginning or the middle of the trial” that her son had been a

juror in a DUI trial and those jurors had found the defendant guilty “because there was no

defense. Of course they had to find him guilty.” This comment made Juror No. 5

“uneasy.”

Juror No. 8 then testified the comment she made was that the defendant in her

son’s case did not have a defense. This had nothing to do with the current case. She

“didn’t care if [the current defendants] testified or not. That was their right.” The court

found Juror No. 8 “credible” and it “did not get an impression . . . that there was an effort

to hide anything.”

On our independent review, we find no misconduct, given the testimony of Juror

No. 8 that the court credited. (See People v. Gamache, supra, 48 Cal.4th at p. 396

[standard of review].) Juror No. 8’s comment about her son’s jury service had only to do

with that case, had no impact on her reasoning in this case, and she did not care whether

defendants here testified because that was their right.

G

Juror No. 1 And Juror No. 8 Conferring Regarding The Postverdict

Hearing On Juror Misconduct

27

Whitfield and Cornelius contend Jurors Nos. 1 and 8 committed misconduct by

conferring with one another after being notified about the postverdict hearing but before

they testified at that hearing.

The evidence was that before the postverdict hearing, Juror No. 8 emailed Juror

No. 1 and told him she (Juror No. 8) had received a call from the court to come to the

postverdict hearing and was wondering if Juror No. 1 had received the same call. Juror

No. 1 responded that he also got the call and was coming in. Juror No. 8 then emailed

Juror No. 1 that she had looked online that “they were requesting a retrial, but [she]

didn’t know why.”

The fatal problem with defendants’ misconduct contention based on this

testimony is that there is no evidence either juror violated a court order or instruction that

told them not to communicate with the other jurors before the postverdict hearing.FN8

Thus, there is no basis on which to find misconduct from this communication between

the two jurors.

FN8. There is also no evidence Juror No. 8 lied to the court about the nature or

contents of the communication, as the trial court found Juror No. 8’s testimony

credible.

Cornelius, 2016 WL 5112052, at *11-15.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

U.S. CONST. amend VI (emphasis added). The right to an impartial jury is further applicable to

the states by way of the Fourteenth Amendment. See Irvin v. Dowd, 366 U.S. 717, 722 (1961).

“The bias or prejudice of even a single juror is enough to violate that guarantee.” United States

v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013) (quoting United States v. Gonzalez, 214 F.3d

1109, 1111 (9th Cir. 2000)). However, the constitution “does not require a new trial every time

a juror has been placed in a compromising situation.” Tinsley v. Borg, 895 F.2d 520, 524 (9th

Cir. 1990) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). “Due process means a jury

capable and willing to decide the case solely on the evidence before it, and a trial judge ever

watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when

they happen.” Id. (quoting Phillips, 895 F.2d at 217).

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The Ninth Circuit has recognized three forms of juror bias: 1) “actual bias, which stems

from a pre-set disposition not to decide an issue impartially”; 2) “implied (or presumptive) bias,

which may exist in exceptional circumstances where, for example, a prospective juror has a

relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a

material fact to get on the jury”; and 3) “so-called McDonough-style bias, which turns on the

truthfulness of a juror’s responses on voir dire” where a truthful response “would have provided

a valid basis for a challenge for cause.” Fields v. Brown, 503 F.3d 755, 766-67 (9th Cir. 2007)

(citing McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984) (plurality)).

In support of his claim, Kemokai conclusorily states that “[t]his record discloses that two

jurors who decided [Kemokai’s] fate committed acts of misconduct and manifested actual bias as

well as implied bias.” But Kemokai fails to provide any support establishing the implied or

actual bias of Juror No. 1 or Juror No. 8.

Where a hearing has been held on juror impartiality and the fact-finding process was

objective and reasonably explored the issues presented, the state trial judge’s findings based on

that investigation are entitled to a presumption of correctness. Dyer, 151 F.3 at 975. A

petitioner must therefore present clear and convincing evidence to rebut this presumption. 28

U.S.C. § 2254(e)(1); Miller-El, 537 U.S. at 340. The Supreme Court has made it clear that on

federal habeas review, the determination of juror bias “is essentially one of credibility, and

therefore largely one of demeanor.” Tinsley, 895 F.2d at 525 (quoting Patton v. Yount, 467 U.S.

1025, 1038) (internal quotation marks omitted). The findings of state trial and appellate courts

on juror impartiality deserve “a high measure of deference.” Id. (citation omitted).

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Here, Kemokai has not rebutted with clear and convincing evidence the state trial court’s

finding of no bias. Rather, Kemokai urges this Court to re-assess the testimony and credibility of

the jurors. Federal law is clear, however, that the state court was in the best position to assess

the demeanor and weigh the credibility of the juror in question. See Yount, 467 U.S. at 1038

(“Demeanor plays a fundamental role not only in determining juror credibility, but also in simply

understanding what a potential juror is saying. . . . Demeanor, inflection, the flow of questions

and answers can make confused and conflicting utterances comprehensible.”). Because he fails

to provide any evidentiary support for his claim, and fails to show that the decision of the state

courts is anything but reasonable, Kemokai is not entitled to relief on this claim. Woodford v.

Visciotti, 537 U.S. 19, 15 (2002) (per curiam) (holding that state habeas petitioner carries the

burden of proof).

Ground 7. Cumulative Error

Finally, Kemokai claims that the cumulative effect of the alleged errors raised above

warrant reversal of his conviction. The Ninth Circuit has stated “[t]he Supreme Court has clearly

established that the combined effect of multiple trial court errors violates due process where it

renders the resulting trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir.

2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298 (1973)); see also Whelchel v.

Washington, 232 F.3d 1197, 1212 (9th Cir. 2000). “Cumulative error applies where, although no

single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the

cumulative effect of multiple errors has still prejudiced a defendant.” Jackson v. Brown, 513

F.3d 1057, 1085 (9th Cir. 2008) (quoting Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir.

2000)). Where “there are a number of errors at trial, ‘a balkanized, issue-by-issue harmless error

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review’ is far less effective than analyzing the overall effect of all the errors in the context of the

evidence introduced at trial against the defendant.” United States v. Frederick, 78 F.3d 1370,

1381 (9th Cir. 1996) (quoting United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988)).

“While the combined effect of multiple errors may violate due process even when no

single error amounts to a constitutional violation or requires reversal, habeas relief is warranted

only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th

Cir. 2011) (citing Chambers, 410 U.S. at 298, 302-03). Such “infection” occurs where the

combined effect of the errors had a “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted). In other

words, where the combined effect of individually harmless errors renders a criminal defense “far

less persuasive than it might [otherwise] have been,” the resulting conviction violates due

process. See Chambers, 410 U.S. at 294.

As discussed throughout this opinion, Kemokai does not demonstrate federal

constitutional errors that would establish prejudice in the aggregate. See, e.g., 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.”). As the Court of Appeal reasonably

determined on direct appeal, Kemokai’s trial involved “only one error (the instruction defining

possession of a firearm as a primary activity of Killa Mobb) that was harmless, so there are no

multiple errors to accumulate.” Cornelius, 2016 WL 5112052, at *11. Kemokai is therefore not

entitled to relief on this claim.

V. CONCLUSION AND ORDER

Kemokai is not entitled to relief on any ground raised in his Petition.

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IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ

of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of

Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain

a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the

Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.

The Clerk of the Court is to enter judgment accordingly.

Dated: June 4, 2020.

/s/James K. Singleton, Jr.

JAMES K. SINGLETON, JR.

Senior United States District Judge

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