Petition for Writ of Certiorari — Victor Martinez, Petitioner v. James Robertson, Acting Warden

Supreme Court briefMar 6, 2018

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 22018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

VICTOR MARTINEZ,

Petitioner-Appellant,

I,,

HATTON, Warden,

I No. 17-15356

D.C. No. 5:15-cv-04849-BLF

Northern District of California,

San Jose

I . ,"

Respondent-Appellee.

Before:

TROTT and FISHER, Circuit Judges.

Appellant's motion for reconsideration en banc (Docket Entry No. 8) is

denied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord. 6.11.

No further filings will be entertained in this closed case.

UNITED STATES COURT OF APPEALS

TILED

FOR THE NINTH CIRCUIT

JAN 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

VICTOR MARTINEZ,

Petitioner-Appellant,

HATTON, Warden,

No. 17-15356

D.C. No. 5:15-cv-04849-BLF

Northern District of California,

San Jose

ORDER

Respondent-Appellee.

Before:

NGUYEN and OWENS, Circuit Judges.

The request for a certificate of appealability is denied because appellant has

not made a "substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 3221 327 (2003).

Any pending motions are denied as moot.

DENIED.

APPENDIX B

Case 5:15-cv-04849-BLF Document 24 FIed 01117117 Page 1 of 1

UNITED STATES DISTRICT.COURT .

NORTHERN DISTRICT OF CALIFORNIA

VICTOR MARTINEZ,

Case No. 15-04849 BLF (PR)

Petitioner,

JUDGMENT

.20

("C

HATTON, Warden,

Respondent.

For the reasons stated in the order denying the -Petition for a Writ of Habeas Corpus,

judgment is entered- in Thvo1 of Respondent and against Petitioner.

IT IS SO ORDERED.

Dated

~ /7

.9HL ABSsON FrTMA

P:\PRO-SE\BLF\HC I 5\052.26Millerjudgmcnt

Case 5:15-cv-04849-BLF Document 23 Filed 01/17/17 Page 1 of 28

TiNITED'ST-ATESDISTF'CT'COURT''

NORTHERN DISTRICT OF CALIFORNIA

.VICTOR.MARTINEZ,

Case No. 15-04849 BLF (PR)

Petitioner,

HATTON, Warden,

Respondent.

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS;

DENYING CERTIFICATE OF

APPEALABILITY; GRANTING

MOTION TO AMEND

RESPONDENT'S NAME;

DIRECTIONS TO CLERK

(Docket No. 21)

Petitioner has filed apro Se petition for a writ of habeas corpus under 2,8 U.S.C. §

2254 challenging his state conviction. Respondent filed an answer on the merits. (Docket

No. 12.) Petitioner filed a traverse. (Docket No. 16.) For the reasons set forth below, the

Petition for aWrit of Habeas Corpus is- DENIED.-

I. BACKGROUND

On January 11, 2013, a jury in Santa Clara County Superior Court found Petitioner

guilty of receiving a stolen motor vehicle, possession of ammunition by a prohibited

Petitioner's motion to amend the named Respondent as Warden Hatton, in !ght of his

recent transfer to Soledad State Prison, is GRANTED. (Docket No. 21.)

Case 5i5-cv-04849-BLF Document 23 Filed 01/17/17 Page 2 o 28

person, and possession of burglar tools. (Ans. Ex. A, Clerk's Transcript ("CT") at 247;

Ex. B, Reporter's Transcript ("RT") at 608610.)2 The jury also found true as to each

charge that Petitioner committed the offense for the benefit of, at the direction of, and in

association with a criminal street gang. (Id.) Petitioner waived his right to a jury trial on

the sentencing-enhancement allegations of serving four prior prison terms. (RT 9-10.) In

a separate bench trial, the trial court found three prior conviction allegations to be true and

one allegation not true. (CT 249; RT 614, 621-22.) On April 4, 2013, Petitioner was

sentencdtoatotaLóf ten years andfour months in state prison(CT295 ;RT-659-660.)

On October 21, 2014, the California Court of Appeal affirmed the judgment in part

and reversed in part, the court reversed the unlawful possession of ammunition conviction

and the related gang allegation, and affirmed the judgment in all other respects. (Ex. Fat

24.) In accordance with that decision, an amended abstract of judgment was filed by the

trial court on March 24, 2015, reflecting the amended sentence of eight years, eight months

in state prison. (Ex. G.) On December 1, 2014, Petitioner sought review in the California

Supreme Court, which denied review on January 14, 2015. (Exs. H & I.)

4-4

CI)

On June 15, 2015, Petitioner filed a petition for writ of habeas corpus in the state

high court, which denied the petition on September 30, 2015. (Exs. J & K.)

Petitioner filed the instant habeas petition on October 21, 2015.

H. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at trial

are -from the-opinionof-theCaliforniaCourt-ofAppeal ondirectappeai;-(Ex.-F-):-----

The jury received the following evidence regarding the

circumstances of the charged crimes

Shortly after midnight on September 27, 2012, San Jose Police

Department Officer Kevin McClure heard a revving engine and squealing

2Al1 references herein to exhibits are to the eibits submitted by Respondent in support".- if

the answer, unless otherwise indicated. (See Docket No. 12.)

Case 5:15-cv-04849-BLE Document 23 Filed 01/17/17 Page 3 of 28

tires. He saw a Honda automobile turn toward his patrol car and then away

from it into an alley. He followed it and discovered it parked, with two

individuals running away from it. He apprehended defendant, who, when

he first spotted him, was some 15 feet from the driver's side of the car.

An expert witness on criminal street gangs, Santa Clara County

District Attorney's Office Investigator Michel Whittington, testified that

the area surrounding the intersection near which the officer apprehended

defendant is a "stronghold" for the Sur Santos Pride subdivision of the

Sureflo criminal street gang.

A key fell from defendant. Officer McClure described it as a shaved

kë' óñe niodified in oiEdèrto en cir dóiàiid tiniithi 1ghi[ioñitiths.

He arrested defendant for possessing a burglary tool. In searching him, he

found another modified key and a factory vehicle key in a pocket.

4-4

Defendantspokevoluntarily and deniedhaving been in the Honda,

which turned out to have been reported stolen.

The officer found the car doors unlocked and no key in the ignition

switch. He tried to start the vehicle with the modified keys but neither

worked. He did not notice anything amiss with the ignition switch, door

locks, or windows.

The officer located a backpack on the floor behind the driver's seat.

Although there was no testimony on this point, the record shows that the

backpack contained a card with a fleur-de-lis image. We will have more to

say about the state of the record post, pages 8-10.

Z 18

The backpack contained other paper items, some or all of them

bearing defendant's name; a pair ofjeans; a handmade birthday card

addressed to defendant; toiletries; and a telephone charger for use in a

vehicle.

off1eerfoundTan-iPod-e1econic--media player device plugged into a cigarette lighter. The iPod bore a fleurde-lis screen image

The officer found a trunk organizer next to the backpack. Inside, he

found three boxes of ammunition two of nine-millimeter rounds and one

of .22-caliber rounds.

The owner of the stolen car testified that he did not own any of the

i.ms theofficer found inside it. Latent fingerprints recovered frbrnthc

ammunition boxes were not identifiable. The prosecutor, during his

.41

Case 5:15-cv-04849-BLF Document 23 Filed 01I17LL7. Page 4 of 28

rebuttal argument, acknowledged that there was no useful fingerprint

evidence in the case.

The jury also heard evidence of defendant's involvement in the

Sureño criminal street gang.

When Officer McClure arrested defendant, he saw se?reraltattoos on

him. One was the word "SUR" on the back of his head; an/other consisted

of a series of three dots on his left wrist. Other testimony Would later

establish that the three-dot motif identifies the wearer as a Sureflo.

Whittington, the criminal investigator, testified as an expert on the

SUrinöjiñg a- nd -its iübdivisions. TIië SüSöPidëSürëfióë&jäiig

subset uses the fleur-de-lis; and specifically the design of that French

symbol employed by the New Orleans Saints professional football team, as

a membership emblem. Santos, as in defendant's gang subdivision Sur

Santos Pride, means Saint, as in the New -Orleans Saints, and- so Sur- Santos

Pride is "known by the fleur-de-lis and the Sur and the 13," the expert

explained. "[I]t's not uncommon to see [Sur Santos Pride] members with

fleur-de-lis on phones,... jerseys, et cetera."

•E

Whittington testified that the Sureflos are controlled by the Mexican

Mafia, a criminal prison gang. The Sureflo street gang provides operatives

for the Mexican Mafia. Defendant was an active Sureflo; indeed, in 2011

defendant told police that he was part of the Mexican Mafia. Whittington's

opinion about defendant was also based on the evidence in the case,

including his tattoos, evidence retrieved from his back pack, including a

birthday card signed by various known Sureflos, his moniker Mona

(Spanish for Monkey), and previous documentation the investigator had

reviewed. -Whittington concluded that defendant "has clout" within the

Sureflo gang and opined that he committed the charged crimes for the

benefit of the Sureflos.

The other gang expert, California Department of Corrections and

--Rehabilitation-SpeciaiAgent-Michael Brodie-explainedtheMexicaii1 -Mafia's history. It had 100 to 150 so-called made members, akin to

partners in a legal partnership. Their subalterns included "crew bosses" or

"associates" who organize the Sureflo sübsets.fór criminal purposes. The

100 to 150. Mexican Mafia partners "control and influence" the operations

of some 75,000 to 100,000 Sureflo street gang members throughout the

United States.

Brodie opined that defendant was a Mexican Mafia associate not a

tbutmore of a crew boss," i.e., lower-nking in

so-called made me

the prison gang hierarchy. A crew boss is "a representative out there in [an]

Case 5:157cv-04849-BLF Document 23 Filed 01/17/17 Page 5 of 28

area that is going to be running that area for you as a made member." As a

crew boss, defendant was nevertheless "somebody of major significance"

on the street at the county level He noted the Aztec shield tattoo on

defendant's chest, a blazon that must be earned through diligent work. Like

Whittington, Brodie noted defendant's statement to police in 2011 that he

was a member "in good standing" (the witness's recollection of the words

of the police officer's question On that occasion) of le Eme, a Spanish

proper noun for the letter em, the thirteenth letter of the alphabet in both

Spanish and English. Le Eme is another term for Mexican Mafia.

BrOdie also testified about defendant's notes sent to other gang

members in jails or prisons. They were discovered in another inmate's jail

cell inAUUsf of 20 12O äddressëd ii Ordë kilhii Thishôwéd

that defendant participated in gang business.

0 40

People v. Martinez, No. H039511, slip op. at 2-5 (Cal. Ct. App. Oct. 21, 2014) (hereinafter

"Op.").

Ill. DISCUSSION

Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.

§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21(1975). The writ may not be granted with

respect to any claim that was adjudicated on the merits in state court unless the state

court's 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).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

of law or if the state court decides.acase differently than [the] Court has on a setDf

Case 5:15-cv-04849-BLF Lo:ument 23 Filed 01/17/17 Page 6 of 28

materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The

only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the

holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court

decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004).

While circuit law may be "persuasive authority" for purposes of determining whether a

state court decision is an unreasonable application of Supreme Court precedent, only the

Supreme Court's holdings are binding on the state courts and only those holdings need be

•appliedClark-Murphy,-331-•F.3d 1062,.: .1-069(9th-Cir-),overruled on

8 -I

other grounds by Lóckyer v. Andrade, 538 U.S. 63 (2003).

"Under the 'unreasonable application' clause, a federal habeas court may grant the

writ if the -state court identifies the ttgbvrPitig legal principle from [the Supreme

Court's] decisions but unreasonably applies that principle to the facts of the prisoner's

case." Williams, 529 U.S. at 413. "Under § 2254(d)(1)'s 'unreasonable application'

clause,.

concludes in its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly." Id. at 411. A federal habeas court

making the "unreasonable application" inquiry should ask whether the state court's

application of clearly established federal law was "objectively unreasonable." Id. at 409.

. .

a federal habeas court may not issue the writ simply because that court

Here, as noted, the California Supreme Court summarily denied Pëtitionèr's petition

for review. (See Ex. I.) The California Court of Appeal, in its opinion on direct review,

addressed the first three claims Petitioner raises in the instant petition. (See Ex. F.) The

- --- ------------22

Court-of Appeal thus was the-highest-court-to have reviewed those claims-in-a reasoned-

decision, and, as to those claims, it is the Court of Appeal's decision that this Court

reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming,

423 F.3d 1085, 1091-92 (9th Cir. 2005).

With respect to claim 4, Petitioner raised that claim for the first time in a state

habeas petition before the state high court, which summarily denied them. See supra at 2.

The standard of review under AEDPA is smewhat different where thstate court gives no

Case 5:15-cv-04849-BLF Document 23 Filed 0J174'17 Page 7 of 28

reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned

lower court decision on the claim. In such a case, a review of the record is the only means

of deciding whether the state court's decision was objectively reasonable. See Plascencia

V. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006). When confronted with such a

decision, a federal court should conduct "an independent review of the record" to

determine whether the state court's decision was an objectively unreasonable application

of clearly established federal law. Id. at 1198. This independent review is not de novo

8 — review_theultimate:question is-still -whether-the-stale-court-applied-federal-iaw-in-an-

objectively reásônable manner. Kyzàr v. Ryan, 780 F3d 940, 949 (9th Cir. 2015). Section

2254(d)(1) does apply to decisions that are unexplained as well as to reasoned decisions.

See Harrington v. Richter, 131S. Ct. 770,784.85(2011).

The Supreme Court has vigorously and repeatedly affirmed that under AEDPA,

there is a heightened level of deference a federal habeas court must give to state court

decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Harrington, 131

S. Ct. at 783-85; Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per curiam). As the Court

explained: "[o]n federal habeas review, AEDPA 'imposes a highly deferential standard for

evaluating state-court rulings' and 'demands that state-court decisions be given the benefit

of the doubt." Id. at 1307 (citation omitted). With these principles in mind regarding the

standard and limited scope of review in which this Court may engage in federal habeas

proceedings, the Court addresses Petitioner's claims.

----P efidoner -as serts-the-fal lowi ng--grounds-for relief--(I)-tfferC7 was-insaffic Rant—

evidence to support the conviction for receiving stolen property in violation of due process,

(Pet at 6), (2) the trial court abused its discretion in failing to bifurcate the gang evidence

from trial on the substantive offenses, violating Petitioner's rights to due process, (Id. at

12); (3) the gang experts testimony regarding Petitioner's "purported actions, specific

intent, and subjective motivations" violated Petitioner's rights to a fair trial, due pross,

and "to a reliable verdict based on evidence found true beyond a reasonable doubt," (id. at

Claims and Analysis

Case 5:15-cv-04849-BLF Document 23 Filed 01/17/17 Page 8 of 28

13); (4) ineffective assistance of trial counsel based on several failures, (Id. at 25); and (5)

the prosecution withheld favorable evidence to Petitioner's defense, (Id. at 34).

Insufficient Evidence

Petitioner's first claim is that there was insufficient evidence to support the

conviction for receiving stolen property. (Pet. at 6-11.)

The Court of Appeal considered this claim on direct review and rejected it:

Defendant claims that his conviction of violating section 496d was

based- on -insufficient-evidence,-thereby-violating-hi&rights to due process of

law under the Fourteenth Amendment to the United States Constitution. He

reasons that though property connected to him, i.e., the backpack, was

found in the car, there was insufficient evidence that he knew the car had

been stolen or that he exercised dominion or control over the stolen car.

O 40

If we were "assessing such a claim [under state law], we [would]

review the record 'in the light most favorable to the judgment below to

determine whether it discloses substantial evidence that is, evidence

which is reasonable, credible, and of solid value such that a reasonable

trier of fact could find the defendant guilty beyond a reasonable doubt.'

[Citation.] 'The federal standard of review is to the same effect: Under

principles of federal due process, review for sufficiency of evidence entails

not the determination whether the reviewing court itself believed the

evidence at trial establishes guilt beyond a reasonable doubt, but, instead,

whether after viewing the evidence in the light most favorable to the

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

elements of the crime beyond a reasonable doubt. (Jackson v. Virginia

(1979) 443 U.S. 307, 317-320.)"' (People v. Watkins (2012) 55 Cal.4th

999, 1019-1020.)

22-

Subdivision (a) of section 496d provides, in pertinent part: "Every

personwho receives any motor vehicle that ha been sQlen ,

knowing the property to be stolen[,]... shall be punished...."

Thus, to sustain a conviction for possessing a-stolen vehicle, the

prosecution must prove that (1) the vehicle was stolen; (2) the defendant

knew it was folen; and (3) the defendant had possession of the stolen

vehicle. (People v. Martin (1973) 9 Ca1.3d 687, 695.)

Possession of stolen property may be actual or constructive, sole or

joint. It suffices that thedefendant have a measure of control or dominion

over the stolen property.- (people v. Land (1994) 30 Cal.App.4th-220, 2238

Case 5:15-cv-0484943LF Document 23 Filed 01/17/17 Page 9 of 28

224.) But mere proximity to stolen property, e.g., as a car passenger, does

not permit a conviction for receiving stolen property (People v. Myles

(1975)50 Cal.App.3d 423, 429), if that is all the evidence there is. In

Myles, evidence that the defendant was a passenger in a car and was found

looking inside its trunk, which contained stolen property, did not suffice to

sustain a conviction for receiving the property. (Id. at pp. 426, 429.)

People v. Mann, supra, 9 Cal.3d 687, held that evidence that the defendant

received a stolen item by placing it in the trunk of his car was insufficient

to sustain a -conviction for also receiving stolen property that remained in a

codefendant's car. (Id, at p. 696.) The defendant may have known the

other property was stolen, but even so, he never possessed it, because his

mere presence at the scene did not constitute possessing it. (Thid.)

1'l

ii 16

Before discussing the question of possession , we must dispose of

defendant's arguments regarding the first two elçments of the, offense.

Defendant concedes, as he must, that there was sufficient evidence that the

car-was stolen. He disputes-that there was sufficient evidence .toestablish

he knew it Was stolen, but that is not the case. He was running away from a

car that had been stolen. A rational trier of fact "could reasonably infer

appellant fled because he knew he was driving a vehicle he had just

stolen...." (People v. Young (1992) 11 Ca1.App.4th 1299, 1307; see People

v. O'Dell (2007) 153 Cal.App.4th 1569, 1577 ["A rational trier of fact

could have inferred that appellant knew the truck was stolen..., based upon

the circumstances of his flight"]; State v. Serrano (1969) 53 N.J. 356, 360

[251 A.2d 97, 99], cited in People v. Land, supra, 30 Cal.App.4th at p. 226,

fn. 3 [passenger's fleeing "from the scene where [the police] had caused

[the driver] to stop the car might justify an inference that he knew or

suspected the car was stolen"].) Defendant himself argues that nothing in

the car was incriminating per Se: there Were personal items belonging to

him, but they were innocuous legal and commercially available 'items, such

as items bearing the fleur-de-lis motif of the New Orleans Saints football

team. There was also ammunition, but defendant argues that nothing

connects it to him. (We will discuss this contention in our consideration of

defendant's next claim.)

•.

Even without these circumstances, a rational trier of fact could

conclude that a person who flees from a stolen car knows it is stolen, and

with these circumstances that under defendant's own reasoning nothing

but the car itself suggested an obvious reason for flight that conclusion is

reinforced.

- -

We note that in People v. Clark (1967) 251 Cai.App.2d 868 (Clark),

a case considering accomplice liability for theft-ofa vehicle, the court held

that "a donviction cannot be-based on a vacuuihthèe m'itbe affirmative

evidence for the prosecutiorito show guilt" (Id. at p. 74) and that there was

- -

Case 5:15-cv-04849-BLF Document 23 .FUe&01/17/17 Page 10 of 28

insufficient evidence to confer accomplice liability on a passenger who ran

away on foot from police who stopped the car. The passenger testified he

did not realize the car was stolen until well into a trip the driver was taking

and "explained his running away as 'panic' and that he was 'afraid of the

police." (Ibid.)

In Clark, supra, 251 CaLApp.2d 868, unlike here, the only evidence

was that the defendant was not the driver here it is unclear what role

defendant played in the operation of the vehicle and the court was

concerned with an aspect of accomplice liability, specifically its conclusion

that guilt could [] not be found unless "defendant must have known that the

vehicle had been unlawfully acquired and must have had that knowledge at

a time when he could be said to have;iwsome way; aidedOraSSiStediWthe

driving." (Id. at p. 874.) The Clark court acknowledged, however, that the

defendant's "running away may have been caused by his knowledge of his

individual guilt." (Ibid.)

•°

4-1

Clark, supra, 251 Cal.App.2d 868, predates more modern authority,

including the landmark 1979 case of Jackson v. Virginia, supra, 443 U.S.

307, on which the due process claim of defendant here ultimately rests, and

Clark's facts and legal considerations are different. We need not address

Clark's continuing vitality, but it is sufficiently divorced from the facts and

law before us that we need not concern ourselves with it further.

We return to defendant's weightier contention: that the presence of

his backpack in the vehicle did not constitute constitutionally sufficient

evidence that he and not another person who could have stolen the car

and been its driver had sole possession of the car.

To be sure, and to state the obvious, "Had appellant been the

driver[,] presumably there would have been no question he had possession

of the car." (People v. Land, supra, 30 Cal.App.4th at p. 223, fli. 2.) Here,

by contrast, the officer could not perceive who had been driving the car;

defendant could have been the passenger and had no control over it. We

..mü'st look, to .otherevidence to determine if-there was sufficient evidence

that defendant had control of some part of the car and thus satisfied the

possession element of the offense.

There was such evidence. There was testimony that plugged into the

car's cigarette lighter was an iPod with the fleur-de-lis motif as its

wallpaper. Whoever inserted the iPod controlled the car to that extent. The

jury could rationally conclude that the iPod was inserted by defendant. It

aw that his backpack contained an item that also had the fleur-de-lis motif.

The manner in which we ascertain this circumstance is unorthodox-but

.- satisfactory. No witness testified before the jury that he or she was holdiñi

....-.

Case 5:15-cv-04849-BLF Document 23 Filed 01/17/17 Page 11 of 28

0 40

c_)

•0 ()

an item from defendant's backpack that displayed a fleur-de-lis. But we

have no doubt that the jury saw such an item, because, in the jury's

presence, Officer McClure opened the backpack and examined its contents

item by item, including Exhibit 14, which was marked for identification.

The court reporter's exhibit list, recited in the reporter's transcript, states

that Exhibit 14 is a "New Orleans Saints emblem," i.e., a fleur-de-lis.

Defense counsel mentioned at closing argument that a fleur-de-lis emblem

was found both in the backpack and on the iPod's wallpaper, but argued

they could have belonged to any Sureflo. During the prosecutor's rebuttal

argument, he too mentioned the presence of these items. The prosecutor

stated that defense counsel argued "that the fleur-de-lis found on the iPod

suggests that the defendant wasn't in the car. Well, the fleur-de-lis was

also found in the backpack. And the fleur-de-lis is a symbol of SSP [Sur

Santos Pride, the Sureflo gang subdivision,] as you know from Investigator

Whittington's testimony.... He associates with SSP people.... And the

fact that he has an SSP symbol [the fleur-de-lis] in his backpack along with

the [birthday] card from lots of other hoods in his backpack with his

personal information... suggests... that the iPod with the fleur-de-lis puts

him in the car as well."

What is missing from the record is a question by the prosecutor

asking the witness to show and describe Exhibit 14 to the jury.

Nevertheless, the state of the record satisfies us that the jury saw the item.

With a fleur-de-lis found both among defendant's possessions and on the

wallpaper of the iPod inserted into the car's cigarette lighter, a rational trier

of fact could conclude that defendant owned both items and controlled the

car to the extent he was able to avail himself of the car's cigarette lighter to

charge the iPod device. Although minimal, that degree of control satisfies

the rule that if an actor acquires some measure of dominion over or control

of the vehicle, the actor possesses the vehicle for purposes of section 496d.

There was no violation of defendant's Fourteenth Amendment due process

rights.

(Op. at 5- 10.)

2-2

—The-Due-Process-Clause "protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the

evidence in support of his state conviction cannot be fairly characterized as sufficient to

have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a

constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if prover

,.--

entitles him to federal habeas relief, see id. at :324. Here, the Court notes that the state

- -.

*.-

Case 5:15-cv-G4849-BLF Document 23 Filed 01/17/17 Page 12 of 28

0..0

4-4

appellate court identified the correct controlling federal precedent on this claim by

applying Jackson, 443 U.S. 307. (Op. at 5-6.)

The Supreme Court has emphasized that "Jackson claims face a high bar in federal

habeas proceedings...." Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam)

(finding that the 3rd Circuit "unduly impinged on the jury's role as factfinder" and failed

to apply the deferential standard of Jackson when it engaged in "fine-grained factual

parsing" to find that the evidence was insufficient to support petitioner's conviction). A

-federal court-reviewing 'collaterally a state-court conviction does not determine whether it

is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg,

982 F.2d 335, 338 (9th Cit. 1992), cert. denied, 510 U.S. 843 (1993); see, e.g., Coleman,

132 S. Ct. at206-5('thnly question under Jackson is whether lithe jury's finding of guilt]

was so insupportable as to fall belowthe threshold of bare rationality"). The federal court

"determines only whether, 'after viewing the evidence in the light most favorable to the

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

beyond a reasonable doubt." Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319).

Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt,

has there been a due process violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338;

Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cit.), amended, 768 F.2d 1090 (9th Cir.

1985), cert. denied, 475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor V.

Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838 (1984). "Jackson leaves

juries broad discretion in deciding what inferences to draw from the evidence presented at

C,)

trial requiring only that jurors-'draw reasonable nferencesfrom basic facts to ultimate

facts." Coleman, 132 S. Ct. at 2064.

Lastly, 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); Hicksv. Feiock, 485 U.S. 624, 629 (1988).

Accordingly, this Court is bound by the state.appeiate COurt's interpretation-of California

Penal Code § 496d(a), i.e., that a-conviction based theoi requires three elements, and the

Case 5:15-cv-04849-BLP Document 23 Filed 01/17/17 Page 13 of 28

controlling case law thereon. That interpretation includes the holding that if defendant had

control of "some part of the car," it satisfies the possession element of the offense. (Op. at

7.)

After viewing the evidence in the light most favorable to the prosecution, the Court

finds that a rational trier of fact could have found the essential elements for receiving a

sto1en vehicle beyond a reasonable doubt. Payne, 982 F.2d at 338. Possession of a stolen

vehicle under California Penal Code § 496d, subdivision (a), requires the prosecution to

prove: (1) the vehicle was stolen; (2) the defendant knew it was stolen; and (3) the

defendant had possession of the stolen vehicle. (Op. at 6.) As discussed by the state

appellate court, Petitioner concedes that there was sufficient evidence that the subject

vehicle was stolen, which satisfies the first element (Id) With respect to the second

element, the state appellate court determined that a rational trier of fact could conclude

"that a person who flees from a stolen car knows it is stolen, and with these circumstances

II 16

that under [Petitioner]'s own reasoning nothing but the car itself suggested an obvious

reason for flight that conclusion is reinforced." (Id at 7.) Based on the reasonable

inference that running away from a stolen vehicle may have been caused by one's

consciousness of guilt or at least knowledge that the vehicle was stolen, it cannot be said

that no rational trier of fact could have the second element beyond a reasonable doubt. See

Jackson, 443 U.S. at 324.

With respect to the third element of possession, the record shows the following: (1)

expert testimony established that the- fleur-de-lis was an identifying gang symbol for the

gang,,.,(2) there was an iPod with a fleur-de-lis motif as its wallpaper plugged into the car's

cigarette lighter; (3) a backpack found inside the car contained an item that also had the'

fleur-de-lis motif (People's Exhibit No. 14); and (4) paper items bearing Petitioner's name

were found in the backpack, including a handmade birthday card addressed to Petitioner.

(Op at 3-4) Based on this evidence, the state appellate court fouriiliat "a rational trier of

fact could conclude that [Petitioner] owned boili [the iPod and the backák] and

Case 5:15-cv-04849-BLF Document 23 Red 01117/17 Page 14 of 28

controlled the car to the extent he was able to avail himself of the car's cigarette lighter to

charge the iPod device." (Op. at 9.) The state appellate court concluded that "[a]lthough

minimal, that degree of control satisfies the rulethat if an actor acquires some measure of

dominion over or control of the vehicle, the actor possesses the vehicle for purposes of

section 496d." (Id. at 9-10.) The state appellate court's decision was not unreasonable

because a jury could reasonably infer thaPetitioner owned the backpack because it

contained his personal items, including an item bearing the fleur-de-lis motif; that he also

owned theiPodbearingthe saméf1eurde-1is motif-as itswa1lpaper and thattherefore

Petitioner had been inside the stolen vehicle and exercised some degree of control over it,

albeit minimal. Based on these reasonable inferences "from basic facts to ultimate facts,"

C.)

.! 0

a jury could find Petitioner guilty of possessing a stolen vehicle beyond a reasonable

doubt; accordingly, it cannot be said that Petitioner has overcome the highly deferential

standard of Jackson to establish a due process violation. See Jackson, 443 U.S. at 324;

Coleman, 132 S. Ct. at 2064.

Petitioner argues in his traverse that the state appellate court's decision was based

on an unreasonable determination of the facts in light of the evidence presented. (Tray. at

3.) He argues that although his tattoos identify him as a member of the "S.P.V." (Surefio

Por Vida) gang, the fleur-de-lis symbol was exclusive to the "S.S.P." (Sur Santos Pride)

gang, and therefore not specifically attributable to Petitioner. (Id.) In other words,

Petitioner is arguing that although the evidence may have indicated that he was a Sureflo

associate, it did not establish that he was specifically a member of the subdivision Sur

22- - SiitosPriuwhin used thfieur-d1iasitssymbol Thi argunient is withoutinent

------

i,ecause it matters not whethei Petitioner was actually found to be a member of the

subdivision Sur Santos Pride. , The record shows that several personal items were found in

the backpack, including a minute order from Santa Clara County Superior Court with

Petitioner's name on it (People's Exhibit No. 5), two handmade birthday cards to

Petitiont.r, signed by members of different Sureflo gangs (People's Exhibit Nos 1 iind I 2),

Case 515-cv-04849-131LF Document 23 Filed 01/17/17 Page 15 of 28

and a letter addressed to Petitioner under his moniker "Mono" (People's Exhibit No. 8)3

(RI 166-167, 309-319.) Based on this evidence, ajury could reasonably infer that the

backpack and all its contents belonged to Petitioner. Because several of the items in the

backpack had the fleur-de-lis symbol on them,4 a jury could reasonably infer that the iPod,

which also had the fleur-de-lis symbol as its wallpaper, belonged to the same owner of the

backpack, i.e., Petitioner.

Based on the foregoing, the state court's rejection of this claim was not contrary to,

r iueasonab1eappiictionof, clearly estab1ished-SupremeCourtprecedent,nor wasit

based on an unreasonable determination of the facts in light of the evidence presented. 28

rl,O

C,)

U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief based on this claim.

Denial of Motion to Bifurcate Trial on Gang Enhancements

Petitioner's second claim is that the trial court abused its discretion in failing to

grant his motion to bifurcate the gang enhancements from the trial on the substantive

offenses, violating his right to due process. (Pet. at 12-24.)

The Court of Appeal considered this claim and denied it on direct review:

Defendant claims the trial court infringed on his right to due process

of law under the Fourteenth Amendment to the United States Constitution

by denying his motion to bifurcate the trial on the gang-benefit sentencingenhancement allegations.

Although defendant raises. a federal constitutional claim on appeal,

trial counsel did not do so in the court below. "In those instances where he

did not present constitutional theories below, it appears that either (1) the

—appellate claim-is one that required no objection to preserve it, or (2) the

newarguments-arebased-onfactua1oriegalstandardsnodifferent-from------those the trial court was asked to apply, but raise the additional legal

consequence of violating the Constitution "To that extent, defendant's

new constitutional arguments are not forfeited on appeal" [Citation.] [But

Petitioner also attacks the use of a birthdaycard marked as People's Exhibit 14, which

was addressed to an "Armando." (Tray. ati8J HOwever, this card was only one of five

items found in the backpack, threeof.which-were specifically addressed to Petitioner. (RT

at 309-319.)

One of the handmade birthday cards, marked as People's Exhibit No. 12, also bore the fleur-delis mark. (RT314.)

1.)

Case 5:15-cv-04849-BLF'Document 23 Filed 01/17/17 Page 16 of 28

no] separate constitutional discussion is required, or provided, when

rejection of a claim on the merits necessarily leads to rejection of any

constitutional theory or "gloss" raised for the first time here." (People v.

Carrasco (2014) 59 Cal.4th 924, 958.) This is a claim of the second type.

We will therefore address the state-law underpinnings of defendant's claim

and resolve it according to them.

We review a claim of this type for abuse of discretion. (People v.

Hernandez (2004) 33 Cal.4th 1040, 1044, 1048 (Hernandez).) The burden

is on the defendant to show there is a substantial danger of undue prejudice

from the evidence. (Id at pp. 1050-1051.)

C.)

JG 4-1

Hernandez recognized that there will generally be less need for

bifurcation of a gang enhancement than a prior conviction allegation.

"[T]he criminal street gang enhancement is attached to the charged offense

and is, by definition, inextricably intertwined with that offense."

(Hernandez, supra, 33 Ca1.4th at p. 1048.) "[E]vidence of gang

membership is often relevant to, and admissible regarding, the charged

offense. Evidence of the defendant's gang affiliation including evidence

of the gang's territory, membership, signs, symbols, beliefs and practices,

beliefs and practices, criminal enterprises, rivalries, and the like can help

prove identify, motive, modus operandi,... intent, means of applying force

or fear, or other issues pertinent to guilt of the charged crime. [Citation.]

To the extent the evidence supporting the gang enhancement would be

admissible at a trial of guilt, any inference of prejudice would be dispelled,

and bifurcation would not be necessary." (Id. at pp. 1049-1050.)

Other considerations, however, militate in favor of bifurcation. "The

predicate offense offered to establish a 'pattern of criminal gang activity' (

186.22, subd. (e)) need not be related to the crime, or even the defendant,

and evidence of such offenses may be unduly prejudicial, thus warranting

bifurcation. Moreover, some of the other gang evidence, even as it relates

to the defendant, may be so extraordinarily prejudicial, and of so little

relevance -to- guilt, that it threatens to sway the jury to convict regardless of

-the defendant's-actual-guilt." (Hernandez, supra, 33 Cal.4thatp;1049.)

Defendant argues that these considerations apply to him.

To be sure, none of the charged crimes was intrinsically gangrelated; they were of the type that any malefactor could commit, gang

associate or not. But defendant's theory of events included a denial of any

connection to the contraband vehicle. Officer McClure testified that

defendant toidhim, before the officer discovered defendant's belongings,

"that he hadn't been in that vehicle." Defense ounsèPj5.ursued that theory

at closing argument, arguing repçatedly that the prosecutipji h_-d not met its

Case 5:15-cv-04849-BLF Document2S Fded 01/17/17 Page 17 of 28

40,

burden to establish beyond a reasonable doubt that defendant had been in

the car.

To address the problem of defendant's backpack being found inside

the car, defense counsel proposed that the car driver was bringing it to

defendant, who was waiting for it on the street; the driver saw the police car

and panicked, thereby causing defendant to panic; and their joint panic led

to defendant's running away from the car, although he had not been in it

and had no connection to it. Defendant, his counsel argued, was "not

necessarily in the same vehicle at the same time as paperwork bearing his

name."

Thus, according to defendant's theory fIhi.hèideiicè

found inside the car and his flight from the car's vicinity were not enough

to prove intent and motive to commit the receiving-stolen-property count

involving the car. This left it to the prosecution to try to convince the jury

that- defendant had-some illicit-and gainful purpose uñdersection-496d,

that he was not merely joyriding in a car even if he knew to be stolen, was

unaware the car was stolen, or had no relationship to the car at all, as he

told Officer McClure and his counsel kept asserting during argument. The

prosecution probably surmised from the outset of the case that defendant

would not fool any trier of fact into accepting that he had not been in the

car, but it must have been aware of a possibility that defendant would then

fall back to a predictable next line of defense: he could still argue that the

prosecution had provided evidence only of his mere presence in the car,

possibly as a passenger. That quantum of evidence would not be enough

evidence to convict him of possessing a stolen vehicle, a scenario the

prosecution was entitled to believe in light of the altered car keys, the

Sureflo "stronghold" location at which events had unfolded, and

defendant's long-standing Sureflo ties. In the prosecution's theory of the

case, Officer McClure had interrupted a gang-benefitting operation.

Evidence of defendant's gang affiliation was thus, as far as the prosecution

could legitimately believe, "important to the motive" (People v. Martin

(2000)13_Cal.App.4th 76, 81). of defendant; i.e., he possessed the car-in the

-midst-of-Surefloterritory-to- dogangbusiness and- increasethegang's - fortunes.

(Op. at 12-14.)

First of all, with respect to Petitioner's claim that the trial court abused its

discretion under state law in denying the motion to bifurcate, such a claim grounded in

.ate lavr iswithout remedy in federal habeas The Supreme Court has

federal, habeas writ is unavailable for violations of state law or for alleged enr in the

tedhi held that

'Z'

-5:15-cv-04849-BLF Document 23 Filed 01/17/17 Page 18 of 28

interpretation or application of state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62

(2011); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S. 107, 119

(1982); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994).

A state court's procedural or evidentiary ruling may be subject to federal habeas

review, however, if it violates federal law, either by infringing upon a specific federal

constitutional or statutory provision or by depriving the defendant of the fundamentally

fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41(1984); Jammal

Van de Kamp, 926 F.2d9r8,9 19-20 (9th- Cir 199 i) -Middleton .Cupp,768F.2d1083 ,

1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). A federal court can disturb on

due process grounds a state court's procedural or evidentiary ruling only if the ruling was

arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v.

Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v. Sumner, 784 F.2d 984,990 (9th Cir.)

cert. denied, 479 U.S. 839 (1986). A joinder, or denial of severance, of counts or

•1

•O 14

4-I

codefendants, may prejudice a defendant sufficiently to render his trial fundamentally

unfair in violation of due process. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997).

A federal court reviewing a state conviction under 28 U.S.C. § 2254 does not concern itself

with state law governing severance or joinder in state trials. Id. Its inquiry is limited to the

petitioner's right to a fair trial under the United States Constitution. Id. To prevail,

therefore, the petitioner must demonstrate that the state court's joinder or denial of his

severance motion resulted in prejudice great enough to render his trial fundamentally

unfair. Id. In addition, the impermissible joinder must have had a substantial and injurious

24- 4-F-.3-d-765,-

—

of iflüeiici1üirihij

772 (9th Cir. 2000).

The state appellate court's rejection of this claim was reasonable because Petitioner

has failed to demonstrate that it had a substantial and injurious effect or influence on the

jury's verdict. As Respondent argu ;-iheevidence regarding Petitioner's membership in

The Sureflo gang and the crimin thivitie thereof were relevant not only to the gang

enhancements butalso to the elements ofthcsubstantive offence? (Ms. at 14.) As

Case 5:15-cv-0484JLF- Document 23 Filed 01/17/17 Page 19 of 28

discussed above, the presence of Petitioner's personal items, which bore gang indicia and.

common Sureflo symbols, inside the vehicle served as circumstantial evidence that he had

been inside the car and exercised a measure of control over the stolen vehicle. See supra at

11-12. Furthermore, the record shows that the area surrounding the intersection near

Petitioner's arrest was identified as a "stronghold" for a subdivision of the Sureflo gang.

(Op. at 2.) The gang evidence that Sureños commonly engage in car thefts was 'relevant to

the prosecution's theory that Petitioner's possession of the shaved key was gang

8---- - motivated. Therefore,--even had the-trial-court granted the motion tobifurcáte;the-state

appellate court reasonably found that "[e]vidence of [Petitioner]'s gang affiliations

was... 'important to motive" on the substantive offences, "i.e., he possessed the car in the

midst of Sureflo territory to do gang business and increase the gang's fortune," and would

have been admissible in the trial thereon. (Op. at 14.) As Respondent points out, the

evidence offered to prove the gang enhancements would have been admissible in both

trials "because the gang evidence was inextricably intertwined with the charged offense."

(Ans. at 15.) Based on the evidence presented and the nature of that evidence, the Court 1s

not persuaded that had he had separate trials, Petitioner would not have been found guilty

of receiving a stolen vehicle and possession of burglar tools and that the gang allegations

would not have been found true. Accordingly, it cannot be said that the trial court's denial

of the motion to bifurcate had a substantial and injurious effect or influence in determining

the jury's verdict with respect to the substantive offenses. Calderon, 241 F.3d at 772.

Based on the, foregoing, the state court's rejection of this claim was not an

appiiti

Uff

fSUpfeiflICoutt cdent or

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Accordingly, Petitioner is not entitled to habeas relief on this claim.

26.

Petitioner's third claim is that the gang expert's teaimony regarding Petitioner's

-27

Gang Expert Testimony

"purported actions, specific intent, and subjective m.vations' violated his rights to a fair

trial, due procss, and "to a reliable verdict based on evidence fbund true beyond a

Case 5:15-cv-04849-BLF Dotment 23 Filed 01/17/17 Page 20 of 28

reasonable doubt." (Pet. at 13-24.)

The Court of Appeal considered this claim and denied it on direct review, finding

that even if there was error, it was harmless:

The question is whether the error is harmless. Despite defendant's

insistence to the contrary, the standard is the Watson state-law standard

(People v. Watson (1956) 46 Ca1.2d 818, 836), i.e., no reasonable

probability that "the jury would have returned a verdict more favorable to

defendant had it heard the expert witness's explanation of gang culture and

practices, as it did, but not, his opinion that the crime was gang motivated,

itali (VOFsupra, 52--CalAth at p.

J.).) A claim that a witness "gave inadmissible opinion testimony on the

central question of... guilt... is, in substance, one of erroneous admission

of evidence, subject to the standard of review for claims of state law error."

(People .v...Coffmanand Marlow, supra, 34 Cal.4th at p. 76; sec also

Valdez, supra, 58 Cal.App.4th at p. 511.)

b 40, • 13

JG Z.

Under the lenient Watson standard of review for prejudice, we are

constrained to find the error harmless. Whittington, showing understanding

of a fine point in the law, testified on cross-examination that the question of

the truth of the enhancement allegations was for the jury. Perhaps more

important, all of the other testimony adduced on local Sureflo activities

pointed to defendant acting for the gang's benefit when arrested by Officer

McClure. Against this, to be sure, the evidence against defendant pointed

to crimes not notably associated with gang activity; as mentioned,

unlawfully receiving stolen property and possessing contraband

ammunition and burglary tools are easily associated with a malefactor who

does not belong to a gang Still, under the Watson standard for evaluation

of prejudice, "we find no reasonable probability exists that absent the error

the outcome would have been more favorable to defendant[]." (People v.

Rivas (2013) 214 Cal.App.4th 1410, 1421, citing People v. Watson, supra;

46 Cal.2d 818, 836.)

26k.

.[W]e are bound by the rule that the Watson standard of harmless

error applies. Defendant's claim thus fails. His constitutional claims are

unavailing for more pedestrian reasons. Although he raises them on appeal

trial counsel did not do so in the court below. Thus, for reasons stated ante,

page 12, they are without merit.

(Op. at 22-23.)

••,

•'•

-Petitioner is not entitled to federal habeas relief on this claim. Theinited States

Case 5:15-cv-04849-BLF Document 23 Filed 01/17/17

Pag1 of28

Supreme Court has left open the question whether the Constitution is violated by the

admission of expert testimony concerning an ultimate issue to be resolved by the trier of

fact. See Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009). Thus, under Ninth Circuit

precedent, it is "well established.. that expert testimony concerning an ultimate issue is

not per se improper," Id. (quotation and citation omitted), for purposes of habeas corpus

review it suffices to determine that no Supreme Court case has squarely addressed the

issue and, therefore, a state appellate court's decision affirming the admission of such

testimony is not contrary 'to-or-anunreasonabie application of dearly establishedSupreme

Court precedent under 28 U.S.C. § 2254(d)(1). See Id. at 761-62; see, e.g., Briceno v.

40,

4-.

Scriber, 555 F.3d 1069, 1078 (9th Cir. 2009) (habeas relief not available under § 2254(d)

for claim that expert's opinion testimony as to whether hypothetical robberies would have

been gang-related should have been excluded because it pertained to the ultimate issue for

the jury); Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (habeas relief not available

under § 2254(d) for claim that expert testimony to show improper interrogation methods

should have been admitted because Supreme Court has not squarely addressed the issue;

citing Moses, 555 F.3d at 758-59).

Respondent argues that even if there was an error of constitutional proportions, the

error. was harmless under Brecht v. Abrahamson, 507 U.S. 61,9 (1993). See Dillard V. Roe,

244 F.3d 758, 767 n.7 (9th Cir. 200 1) (an evidentiary error of constitutional dimensions

requires an evaluation of whether the error was harmless under Brecht). The Court agrees.

Even if the jury had not been presented with the gang expert's opinion that Petitioner

other evidence to prove the intent element for the gang enhancement. First of all, there

was overwhelming evidence showing that Petitioner was an active' Sureflo associate: (1)

the several tattoos on Petitioner that identified him as a Sureflo; (2) his display of the Sur

Santos Pride Sureflo symbol, Le., the fleur-de-lis, among his personal belongings; (3) a

:27

birthday card signed byyariuS known Sureflos; (4) past police contacts, including- one the

prevRus year 2011 when he.toIdpqlice' that he was a member "in good standing"; and (5)

Case 5:15-cv4840-13LF Document 23 Filed 01/17/17 Page 22 of 28

• 0 ()

Petitioner's notes to other gang members who were incarcerated which indicated that he

was involved in gang business. (Op. at 3-5; RI 288-293, 298-308.) Furthermore,

Petitioner was arrested while running away from a stolen vehicle in an area known as a

Sureflo stronghold, having in his possession shaved keys used to steal cars. (Op. at 2; RT

259, 321.) Petitioner had previously been convicted of receiving a stolen vehicle under'

similar circumstances where he was stopped by police ma stolen car with a shaved key in

the ignition and burglary tools inside the vehicle. (RT at 398-401, 405-407.) As the state

-appellate court-ôbserved'[the-jury--knew-that [Petitioner] was-arrested in 'a-Surefio

'stronghold' and that he was a Sureflo, and it would have been obvious to any thinking

juror... that a criminal street gang would benefit from easy-to-abandon stolen cars,

automobile-burglary tools to help obtain such cars, and ammunition, given that criminal

street gangs cannot settle disputes in court or before professional arbitrators." (Op. at 20.)

Based on the evidence presented, a jury could reasonably conclude that Petitioner

committed the charged offenses for the benefit of a criminal street gang even without the

opinion of the gang expert in that regard. Therefore, the Court finds that any error with

respect to the admission of the gang expert's opinion regarding intent was harmless.

cno

(ID

Based on the foregoing, it cannot be said that the state court's rejection of this claim

was an unreasonable application of Supreme Court precedent or based on an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Accordingly, Petitioner is not entitled to habeas relief on this claim.

-'-

Ineffective Assistance of Counsel

Petitioner's fourthtlainrisTthat-trial"counsehenderedineffectiveassistance'based-

on his failure to do the following to investigate the iPod evidence, to file a motion in

limine to exclude prejudicial testimony of the iPod device and of its screensaver image of a

criminal street gang; and to object to Officer McClure's prejudicia1 testimony concerning

the iPod device and its screensaver image. (Pet. at - 25-33.) Petitioner raised this

ineffective assistance of counsel claim for the

California Supreme Court,-which summarily deniedtepetition. (Ex. K.) Accordingly,

ttimejp a habeas petition in-the

Case 5:15-cv-04849-13IF Document 23 Filed 01/17/17 Page 23 of 28

the Court will conduct an independent review of the record to determine whether the state

court's decision was an objectively unreasonable application of clearly established federal

law. See Plascencia, 467 F.3d at 1198; see supra at 6.

Petitioner must establish two things in order to prevail on a Sixth Amendment

ineffectiveness of counsel claim. First, he must establish that counsel's performance was

deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing

professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he

must establish-that-hewas-prejudiced-by-counsePs-dëficientperfonnance; -i;e;jthat"there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. A court need not determine whether

1•i

öUiisèl'iérf&inané was deficient befone*athii

defendant as the result of the alleged deficiencies. Id. at 697; Williams v. Calderon, 52

c3 40,

F.3d 1465, 1470 & n.3 (9th Cir. 1995) (applauding district court's refusal to consider

.L)

4-4

cno

whether counsel's conduct was deficient after determining that petitioner could not

establish prejudice); cert. denied, 516 U.S. 1124 (1996).

U' .

cu tu

théjrejudice suffered by

The Strickland framework for analyzing ineffective assistance of counsel claims is

considered to be "clearly established Federal law, as determined by the Supreme Court of

the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Cullen v.

Pjnholster, 131 S. Ct. 1388, 1403(2011). A "doubly" deferential judicial review is

appropriate in analyzing ineffective assistance of counsel claims under § 2254. See id. at

1410-11. The general rule of Strickland, i.e., to review a defense counsel's effectiveness

-with-great deference;-gives-the:state-courts -greater-ieeway-in-reasonably-applying-that-ru1e

which in turn "translates to a narrower range of decisions that are objectively unreasonable

under AEDPA." Cheney v. Washington, 614 F.3d 987,995 (9th Cir. 2010) (citing

Yarborough v. Alvarado, 541 U.S. 652,664 (2004)). When § 2254(d) applies, "the

question is not whether counsel's actions were reasonable. :The question is whether there

27.

is any reasonable argument that counsel satisfied Srickl

Barrington, 131& Ct. at 788.

EU'

'sdeferential standard,"

—,

Case 5:15-cv-04849-BLF Document 23 Filed 01I17I17t'Page 24 of 28

Petitioner claims that counsel's performance with respect to the iPod evidence was

deficient because counsel failed to adequately investigate and challenge its admissibility

and related testimony thereon. Specifically, he claims that counsel had possession of the

police investigation reports and preliminary hearing transcripts which detailed the iPod

being discovered in the stolen vehicle and that its screen saver displayed a common

symbol of .a criminal street gang. (Pet. at 25.) Petitionçr claims that had counsel

investigated the information contained therein, he would have discovered "essential

infOrmation-necessary-to-mke-informed-1el-choices"e.g;;-the fact that the iPod was-not

booked into evidence, that the fleur-de-lis symbol was not particular to him, and that the

iPod had been examined for latent prints which might have exculpated him. (Id. at 27.)

o2 13

O)tl)

•

A defense &ttbrñey has a géñerãl duty to thàk èáô nab k1nvèsfljátionsorto make

a reasonable decision that makes particular investigations unnecessary. See Strickland,

466 U.S. at 691; Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) (per curiam);

Pinholster, 131 S. Ct. at 1407; Turner v. Duncan, 158 F.3d 449,456(9th Cir. 1998).

Strickland directs that "a particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy measure of deference to

counsel's judgments." Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting

Strickland, 466 U.S. at 491). Counsel need not pursue an investigation that would be

19-

fruitless or might be harmful to the defense. Harrington, 131 S. Ct at 789-90.

Respondent asserts that because there is no declaration by trial counsel addressing

this claim, Petitioner has presented no evidence to support his claim that counsel failed to

22-1 -investigate-thefactsaileged(Ansat27TeSupreme-Court has 23

ar-that-the-"absence

of evidence cannot overcome the 'strong presumption' that counsel's conduct

made-cl

[fell] within the wide range of reasonable professional assistance" (Ans at 27, citing Burt

v. Titlow, 134 S. Ct 10, 17 (2:0 13) (concluding that without any evidence demonstrating

that counsel gave inadequate advice regarding withdrawal of a guilty plea, there is strong

presumption-that cusel'sperformance was-not deficient).) With this presumptionof

effectiveness in mind, the Court-will consider whether there is any reasonable argument

Case.5:15-cv-04849-BLF Document 23 Filed 01/17/17 Page 25 of 28

that counsel satisfied Strickland's deferential-standard with respect to the handling of the

iPod evidence. See Harrington, 131 S. Ct. at 788.

With respect to the first claim that trial counsel failed to investigate whether the

iPod was not booked into evidence, the record shows that counsel did in fact raise this

'issue at trial. The record shows that counsel specifically asked Officer McClure during

cross examination whether the iPod was booked into evidence and if he remembered who

booked it, which indicates that counsel had investigated the matter. (RT 196-197.) The.

-8-- response to-his -questionwas-that-OfficerMcG1ure-was-the-One-who booked-it-- -Id--at'-i-97:)

.c) 0

cno

Trial counsel also cross-examined Officer Tressler, who testified that he remembered the

iPod from the time of the arrest but that he did not personally book it into evidence. (RI at

238.) Lastly, trial counsel mentioned in cloirig aithent that the iPod Was hot among the

items booked into evidence. (RT at 568.) Accordingly, there is no evidence to support

Petitioner's claim that trial counsel was ineffective for failing to investigate whether the

iPod was booked into evidence when counsel specifically raised that issue at trial.

Petitioner has failed to show that counsel performed in an objectively unreasonable manner

in this regard.

With respect to the claim that there were potentially exculpatory latent prints on the

iPod, the record shows that Officer McClure testified on cross examination that Officer

Byers "checked for fingerprints" on the iPod at the scene. (RI 198.) No further questions

were asked on this topic. Petitioner asserts that he informed counsel "at the outset.., that a

latent print was discovered on the iPod device; that the iPod device itself may contain

--22— —exculpatory-evidence;and-that--any 'latent-prints-found-in-the-yehicle-may-exculpate-[him-] f'-23

(Pet. at 27.) However, there is no evidence to support Petitioner's wholly conclusory

allegation in this regard, and his allegation that there "may" be exculpatory evidence,

without more, is purely speculative. See Bragg v Galaza, 242 F.3d 1082, 1087 (9th Cir),

amended, 253 F.3d 1150 (9th Cir. 2001) (defendant's mere speculation that a witness

.27

might have given helpful information W-in'terviewed is not enough to-establish ineffective

-assistance). Furthermore, the record showsthatthe..only latent fingerprints found were on--25

Case 5:15-cv-04849-BLF Document 23 Fi led 01/17/17 Page 26 of 28

the ammunition boxes, but those prints were unidentifiable. (Op. at 3.) The prosecutor

also acknowledged during rebuttal argument that there was no useful fingerprint evidence

in the case. (Id.) Accordingly, Petitioner has failed to overcome the presumption that

counsel acted in an objectively reasonable manner with respect to the investigation of any

potentially exculpatory fingerprints on the iPod.

Petitioner's claim that counsel's performance was, deficient for failing to file a

motion in limine to exclude the iPod evidence is also without merit. The record shows that

8--- the iPod-evidence-was highly-relevant -to-the charge-of receiving-a 'stolen-vehicle charge

and the gang allegation, as discussed above in Petitioner's claim of insufficient evidence.

See supra at 12-13. Petitioner claims that counsel should have moved to exclude the

evidence as prejudicial, (Pet, at 31),but the Court agrees with Respondent that the

evidence was not substantially more prejudicial than probative under California Evidence

0 4

Code section 352 as it was neither inflammatory nor shocking in nature. (Ans. at 28.)

Accordingly, it is not likely that a motion to suppress the iPod evidence would have been

granted such- that Petitioner was prejudiced by counsel's failure to do so. See Strickland,

466 U.S. at 694. Trial counsel cannot have been ineffective for failing to raise a meritless

motion. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d

1434, 1445 (9th Cir. 1996); see, e.g., Lowry v. Lewis, 21 F.3d at 346 (failure to fife

suppression motiom not ineffective assistance where counsel investigated filing motion and

no reasonable possibility evidence would have been suppressed).

Petitioner's claim that counsel was deficient for failing to object to Officer

McCiure's testimony- witfrrespect'tcrtheiPOd'is alsowith'ourrnerit:FirstofaI1;Petitioziet

- _

cannot establish prejudice because there is no indication that the trial court would have

sustained sUch an objection. See Strickland, 466 U.S. at 694. Petitioner claims that

counsel should have objected to Officer McClure's testimony as "uncorroborated" by

"highlighting foundational inadequacies" and that c tinsel "would have had to investigate

the evidence to confidently make the obje onafiJsupporting arguments.". (Pet.-at 32.)..

However -Petitioner fails to explain how Officer McC1the's testimony was

Case 5:15-cv-04849-BLF Document 23 Filed 0:i7I1_7 Page 27 of 28

4-1

"uncorroborated" or identify the specific "foundational inadequacies" which would have

supported an objection The Court notes that although the iPod was apparently not

available at trial, Officer McClure's testimony that he found the iPod at the time of the

incident was corroborated by Officer Tressler. (RT 197, 23 8.) Without more specific

allegations and supporting evidence, Petitioner's claim is merely speculative, which is not

sufficient to establish ineffective assistance of counsel See Bragg, 242 F 3d at 1087

Furthermore, in the absence of a declaration from counsel to that effect, there is no

-evidence-that counsel-failed to make any investigation-and-that his-failure-to-object-was not

an exercise of his professional judgment. Accordingly, counsel is entitled to the strong

presumption that his conduct was within the wide range of reasonable professional

assistance. SeeBwtv Titiv; 134 S. Ctat 17.

Based on the foregoing, the state court's rejection of this claim was not an

• 13

unreasonable application of Supreme Court precedent or based on an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Accordingly, Petitioner is not entitled to habeas relief on this claim.

Brady' Claim

Petitioner's fifth claim is that the prosecution withheld favorable evidence to

18.

Petitioner's defense. (Pet. at 34-39). Respondent asserts that this claim should be

dismissed for failure to exhaust state judicial remedies or alternatively, denied on the

merits. (Ans. at 29.) In his traverse, Petitioner does not dispute his failure to exhaust state

remedies, but rather "elects to withdraw[] claim five." (Tray, at 3.) In light of Petitioner's

-------2-2--- —vo1untuy-dismissal-of-this-claim,-theQourt-need-not-address--Respondent'-s-argument on

the merits. Accordingly, this claim is DISMISSED as unexhausted.

III

25/i!

Brady v. Maylth2d,373US. 83 (1962).

çasc 5:15-cv-04849-BLF Document 23 Filed 01/17/17 Page 28 o-28

IV. CONCLUSION

•

After acarefuil review Of.the record and pertinent law, the Court concludes that. the

Petition fOr a Writ of Habeas Corpus must be DENIED.

Further, a Certificate.ofAppealability is DENIED. See Rule 11(a) of the Rules

Governing Section 2254 Cases. Petitioner has not made "a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated

that "reasonable jurists would find, the distriCt, court's-assessment of the constitutional

claims debatable or vrong Slack y,..McDaniel. 529. U9..473 484(200.0).. Petitioner may

not appeal the denial of a Certificate of Appealability -in this Court but may seek a

it)

certificate ftoill the Court of Appeals üider Rule 22 of the Federal Rules 'of Appellate

Procedure.. See Rule 11(a) of the Rules Governing Section 2254 Cases

The Clerk shall terminate any pending motions, enter judgment in favor of

c1 13

Respondent, and close the file.

IT IS SO ORDERED.

c/DO

Dated:

EEMAN

United States District Judge

1.8

P:\PRO-5E\13LF\HC. I 5\04849MartinezdenyHC

•

...-'.

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