(HC) Vasquez v. Sullivan

• Court: District Court, E.D. California
• Decided: December 17, 2019
• Docket: 1:19-cv-00811
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

11 TONY VASQUEZ, No. 1:19-cv-00811-DAD-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 WILLIAM SULLIVAN, Warden, [THIRTY DAY OBJECTION DEADLINE] 15 Respondent. 16

17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for

18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently in state prison serving a

19 sentence of life without possibility of parole, plus 64 years to life, plus 27 years, for convictions

20 for, inter alia, first degree murder and attempted murder. The habeas petition presents numerous

21 claims challenging the conviction and sentence. As discussed below, the Court finds the claims to

22 be without merit and recommends the petition be DENIED.

23 I. PROCEDURAL HISTORY

24 On January 12, 2015, a Kern County jury found Petitioner guilty of one count of first

25 degree murder (Cal. Penal Code §§ 187(a), 189), one count of attempted murder (Cal. Penal Code

26 §§ 187(a), 664); two counts of shooting at an occupied motor vehicle (Cal. Penal Code 246); one

27 count of illegal firearm possession (Cal. Penal Code 29800(a)(1)); and one count of making

28 1 1 criminal threats (Cal. Penal Code § 476). (Doc. 19-4 at 157-161.1) The jury also found true the

2 special circumstance allegation of discharging a firearm from a motor vehicle at a person outside

3 said vehicle (Cal. Penal Code § 190.2(a)(21)), and the enhancement allegations that Petitioner

4 personally inflicted great bodily injury (Cal. Penal Code §§ 12022.53(d), 12022.7(a)). (Doc. 19-4

5 at 157-161.) In a bifurcated proceeding, the trial court found Petitioner had suffered a prior

6 conviction, a prior serious felony conviction, and three prior prison terms pursuant to California’s

7 Three Strikes law (Cal. Penal Code §§ 667(b)-(i), 667.5(b), 1170.12). (Doc. 19-4 at 157-161.)

8 The court sentenced him to a prison term of life without the possibility of parole, plus 64 years to

9 life, plus 27 years. (Doc. 19-4 at 157-161.)

10 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth

11 DCA”). On February 6, 2008, the Fifth DCA affirmed judgment. People v. Vasquez, No.

12 F071302, 2018 WL 716845 (Cal. Ct. App. 2018). Petitioner filed a petition for review in the

13 California Supreme Court, and the petition was denied on May 16, 2018. Id.

14 On June 5, 2019, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc.

15 1.) Respondent filed an answer on September 6, 2019. (Doc. 18.) On October 9, 2019, Petitioner

16 filed a traverse. (Doc. 20.)

17 II. FACTUAL BACKGROUND

18 The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision2:

19 In the small hours of April 10, 2014, Armando Ortiz and Aaron Rocha were brought to the emergency department at Kern Medical Center in Bakersfield. Ortiz had 20 sustained a gunshot wound to the right temple, was “in extremis,” and “ultimately went into cardiac arrest.” The medical staff administered cardiopulmonary 21 resuscitation, medication, and defibrillation, but to no avail. Ortiz was pronounced dead at 1:52 a.m. On the other hand, Rocha, who had sustained a gunshot wound to 22 the right proximal superior lateral thigh, was discharged at 5:40 a.m. after receiving treatment. 23 During Ortiz's autopsy, the forensic pathologist extracted a projectile that was 24 consistent with a bullet caliber in the nine-millimeter range. 25

26 1 Citations are to ECF pagination. 27 2 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1). Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir. 28 2009). 2 1 I. Prosecution's case-in-chief.

2 a. Aaron Rocha.

3 Sometime in March 2014, Rocha borrowed a black four-door 2011 Honda Accord with a red Dynasty Motors paper plate from his friend Studer [Fn.5] to visit his 4 children. After returning from his trip, Rocha learned Studer “went to ... rehab” and “didn't want anybody to know where he was at.” Rocha attempted to locate Studer 5 for almost two weeks without success. He decided to keep the Honda Accord until Studer resurfaced. 6 [Fn.5] Rocha did not know Studer's actual name. 7 At some point, Rocha loaned the Honda Accord to Shelly McKeen for a few hours, 8 but she “never brought it back.” McKeen initially told Rocha law enforcement had thrown her in jail and confiscated the car because it was stolen. She subsequently 9 admitted she had given the car to someone named “Tony Vasquez or Velasquez” to pay off a debt. McKeen brought Rocha to “Tony's” house on 6812 Zelda Way, where 10 the Honda Accord was parked on the front lawn and a silver two-door Saturn was parked on the driveway. Several individuals stood outside the residence. They went 11 into the garage when Rocha approached them. He assured the group he “didn't want no problems” and “just wanted the keys” to the Honda Accord. Rocha asked for 12 “Tony” but was advised the latter “wasn't home.” He saw an outdoor surveillance camera aimed at the driveway and “knew they could see [him].” Rocha also noticed 13 there were keys in the Saturn's ignition switch. In front of the camera, he announced, “I'm gonna take that car and when you bring me my car, tell him I'll give him his.” 14 Rocha drove away in the Saturn. When he passed by “Tony's” house 15 minutes later, the Honda Accord was gone. 15 Rocha obtained “Tony's” cell phone number from McKeen. He contacted him and 16 the two men agreed to meet in person and swap cars. “Tony,” however, never appeared at the designated location. At some point, McKeen informed Rocha that 17 “Tony” “had a monitor” and “had to be ... home at 10:00.”

18 On April 4, 2014, at or around noontime, Rocha was driving the Saturn when he saw the Honda Accord on Pacheco Road. He followed it to the intersection of 19 Pacheco Road and South Union Avenue. When Rocha pulled up alongside the Honda Accord, the driver of the Honda Accord opened fire, damaging the Saturn's 20 passenger side door and window, and took off. The gunman appeared to be an elderly Hispanic male with a “heavy mustache” and “big goatee.” 21 On April 10, 2014, sometime after midnight, Rocha drove the Saturn to a 7–Eleven 22 convenience store on the corner of Pacheco Road and South H Street to purchase gas and beer. He was accompanied by his friend Ortiz, who possessed a revolver 23 and placed it in the center console. Rocha parked the Saturn next to a pump and went into the store to pay for the gas. At some point, Rocha and Ortiz agreed to 24 switch seats because Rocha “was gonna drink” and “didn't want to drive.” After refueling the Saturn, Rocha sat in the front passenger seat and began counting the 25 change to determine whether there was enough money to buy beer. Suddenly, he heard a gunshot. Rocha glanced over his right shoulder and saw the gunman in the 26 driver's seat of the Honda Accord. He dived into the backseat but was struck in the right thigh. Rocha shouted, “Let's go, let's go,” but the Saturn remained stationary. 27 He looked at Ortiz in the driver's seat and realized Ortiz had been shot in the head. Fearing the gunman was still nearby, Rocha grabbed the revolver and fled. However, 28 he decided to return to 7–Eleven because he “didn't do anything wrong.” After 3 1 confirming the gunman was no longer in the vicinity, Rocha tossed the revolver into the bushes because he “wasn't gonna carry the gun inside the store” and called 911. 2 Shortly thereafter, he told officers who arrived on the scene the gunman was a Hispanic male with a beanie and goatee in a black car. 3 At Kern Medical Center, Rocha spoke with Officer Escobedo and then Detective 4 Moore. Both times, he reiterated the 7–Eleven gunman was a Hispanic male with a beanie and goatee. During the interview with Moore, Rocha added the gunman was 5 driving a black Honda Accord and appeared “younger than the guy that was on Union and Pacheco.” He denied having any acquaintance with the vehicle. Rocha 6 also denied possessing a gun at the scene but subsequently admitted taking Ortiz's gun. 7 Six hours after being discharged from the hospital, Rocha spoke with Moore at the 8 Bakersfield Police Department. There, Moore stated he knew the 7–Eleven shooting was related to Rocha's conflict with “a dude” over the Honda Accord. He revealed 9 “the guy” wore an ankle monitor and Global Positioning System (GPS) data from the monitor placed “the guy” at 7–Eleven “exactly when [Rocha] was shot.” Moore 10 then asked, “Do you know Tony's last name?” Rocha answered, “Velasquez or Vasquez.” Believing Rocha and defendant “had a relationship” and “knew each 11 other,” Moore showed Rocha a photograph of defendant and asked, “Is this the guy that shot you?” Rocha promptly replied, “Yeah, if you put a beanie on him.” Later 12 in the interview, Rocha denied hiding heroin in the Honda Accord and owning a firearm. When Moore pointed out a witness saw him stash a gun in the bushes, 13 Rocha answered, “Okay, yeah there was a gun but it wasn't mine.”

14 On April 11, 2014, Rocha entered the state witness protection program. In exchange, he agreed in writing to obey all laws and testify truthfully in court. On June 27, 15 2014, Rocha was detained by the United States Border Patrol due to an expired visa. In early July 2014, he was transferred to the county detention facility in Lerdo, 16 ending his involvement in the program.

17 At trial, Rocha was unable to identify defendant as the 7–Eleven gunman, citing poor memory and trauma. Regarding the April 10, 2014, interview with Moore, he 18 remarked, “I just felt a little pressure like to say because of the monitor evidence and the black car, I felt I was being pressured and by saying it is [defendant] when 19 [Moore] pointed the finger at the picture.”

20 b. Witnesses and law enforcement at or near 7–Eleven at the time of the shooting. 21 On April 10, 2014, at or around 12:15 a.m., Rodrigo D. and his girlfriend were 22 renting a movie from a Redbox kiosk in front of 7–Eleven when he heard four or five gunshots. Rodrigo then saw a black four-door sedan with tinted windows 23 leaving the parking lot. The sedan “looked shiny” and “brand new.” Rodrigo and his girlfriend entered the store and called 911. Seconds later, “one of the individuals 24 who had been shot” entered the store and “[got] on the phone.”

25 At 12:17 a.m., Bridget C. called 911 and told the dispatcher she heard three to four gunshots “coming just north of [her] apartment.” At trial, she specified her 26 apartment was “[j]ust south” of 7–eleven. 27 Sometime before 12:20 a.m., Officer McCauley was on duty near the intersection of Pacheco Road and Monitor Street when he heard about five gunshots west of his 28 location. He and his partner drove westbound on Pacheco Road in the direction of 4 1 the gunfire. They were informed about a shooting at 7–Eleven en route. [Fn.6]

2 [Fn.6] At trial, McCauley testified he executed a search warrant at 6812 Zelda Way on September 4, 2013, and confirmed defendant inhabited the 3 master bedroom. He added the outdoor surveillance camera connected to a monitor in that bedroom. 4 At or around 12:20 a.m., Officers Barajas and Billdt were dispatched to 7–Eleven. 5 There, they spotted Rocha limping in front of the entrance and Ortiz sitting motionless in the driver's seat of the Saturn. Billdt, a licensed paramedic, extricated 6 Ortiz from the vehicle. He observed profuse bleeding from Ortiz's nose and right ear indicative of a skull fracture. Billdt supplied medical aid until the ambulance arrived. 7 Meanwhile, Barajas found three Winchester nine-millimeter Luger shell casings 8 next to the Saturn. With the help of an anonymous witness, he recovered an H & R model 922 .22–caliber nine-shot revolver in the bushes adjacent to the parking lot. 9 The witness told Barajas “one of the occupants of the Saturn was the person that hid that gun.” Subsequent forensic analysis established the shell casings were expelled 10 from a semiautomatic handgun, not the revolver.

11 c. GPS data from defendant's ankle monitor.

12 On November 5, 2013, defendant, a “gang-affiliated parolee[ ],” was placed under the supervision of parole agent Miller and fitted with an ankle monitor. On April 1, 13 2014, at 4:52 p.m., as part of a mandatory weekly check-in, he reported to Miller at the parole office. After defendant exited the office past 5:00 p.m., Miller surveyed 14 the parking lot and saw only a black four-door Honda Accord. As defendant approached the driver's side of the vehicle, Miller, whose view was partially 15 obscured “by one of the support columns of the building up front,” “moved around to get a different vantage point.” By the time Miller repositioned himself, defendant 16 was nowhere in sight and the Honda Accord was leaving the lot. GPS data from defendant's monitor showed defendant traveling at 27 miles per hour at 5:09 p.m. 17 On April 9, 2014, GPS data from the monitor showed defendant leaving 2001 Custer 18 Avenue, his reported address, and traveling at 15 miles per hour at 11:45 p.m. His speed increased to 31 miles per hour at 11:54 p.m. On April 10, 2014, at 12:02 a.m., 19 defendant stopped at the southwest corner of South H Street and Brundage Lane, the site of an ampm convenience store. He stayed there until 12:09 a.m. At 12:12 20 a.m., defendant traveled southbound on South H Street at 38 miles per hour. At 12:16 a.m., he stopped at the southwest corner of Pacheco Road and South H Street, 21 the site of the 7–Eleven.

22 Between 12:18 and 12:37 a.m., GPS data from the monitor showed defendant “zigzagging across ... streets” and “staying up in the yards” in the residential 23 neighborhood northeast of 7–Eleven. At trial, Miller deduced defendant was on foot during this period “[b]ased on the location, the geography, [the] barriers and 24 [defendant's] speed.” Defendant then crossed White Lane, stopped and waited at Ivan Avenue, and departed “at a speed ... suggest[ing] that he's ... back in a vehicle.” 25 He returned to 2001 Custer Avenue at or around 1:37 a.m.

26 At 1:52 a.m., GPS data from the monitor placed defendant at the intersection of East Brundage Lane and Weedpatch Highway near a Denny's restaurant. He left the area 27 at 2:29 a.m. and traveled westbound on East Brundage Lane. At 3:50 a.m., defendant was on South Oswell Street. At 3:55 a.m., defendant removed the monitor. Miller 28 received a tamper alert and traced the device to La Posta Street. 5 1 d. Surveillance footage.

2 Surveillance footage recorded at ampm on April 10, 2014, showed (1) a black car pulling up next to a gas pump at 12:02 a.m.; (2) a female entering the store at 12:03 3 a.m.; (3) a male wearing black and white shoes next to the black car at 12:04 a.m.; and (4) the black car leaving at 12:09 a.m. At trial, Moore reviewed the footage and 4 opined the black car “was consistent with [the] black Honda that had been in dispute between [Rocha and defendant].” He also identified the female as Melanie Dunn, 5 describing her as “part employee, part girlfriend, part crime partner with [defendant].” 6 Surveillance footage recorded at 7–Eleven on April 10, 2014, showed (1) Rocha 7 entering the store at 12:11 a.m., paying for gas, and exiting at 12:12 a.m.; (2) three gunshots being fired outside the store at 12:16 a.m.; (3) Rodrigo and his girlfriend 8 entering the store at 12:16 a.m. and calling 911; and (4) Rocha entering the store with his cell phone at 12:18 a.m., exiting temporarily, entering again at 12:19 a.m., 9 and exiting again at 12:20 a.m.

10 Surveillance footage recorded at Denny's on April 10, 2014, showed (1) a male wearing black and white shoes and a female in the parking lot next to a sports utility 11 vehicle (SUV) at 2:04 a.m.; (2) the male and female entering the restaurant at 2:05 a.m.; (3) the male and female leaving the restaurant at 2:23 a.m.; (4) the male and 12 female next to the SUV at 2:24 a.m.; and (5) the SUV leaving the parking lot at 2:27 a.m. At trial, Moore reviewed the footage and identified the male as defendant and 13 the female as Dunn. He pointed out “the shoes [defendant]'s wearing on the Denny's video that was after the shooting are consistent with the shoes worn by the [male] at 14 the ampm on Brundage and H.”

15 e. Defendant's arrest and interview.

16 On April 10, 2014, at or around noontime, in the parking lot of America's Best Inn near the intersection of East Brundage Lane and Weedpatch Highway, officers 17 spotted defendant sitting in the front passenger seat of a silver 1998 Toyota 4Runner. Defendant exited the vehicle and “immediately walked in a northbound direction” 18 “at a fast pace” toward a gas station. He “kept looking back” “nervously over his shoulder.” Defendant approached a customer who was refueling a red Ford 19 Explorer. The two entered the Ford Explorer, the customer in the driver's seat and defendant in the front passenger seat, and departed. Officers pulled over the vehicle, 20 which, at that moment, “appeared to be ... occupied by the driver and driver only.” After the driver complied with commands to vacate the Ford Explorer, officers 21 ordered “other passengers” “to get out.” Defendant emerged from the front passenger door and was detained. At the time of his arrest, he had a goatee. [Fn.7] 22 [Fn.7] Meanwhile, officers found Dunn, another man, and a glass 23 methamphetamine pipe in one of the rooms at America's Best Value Inn.

24 At approximately 8:35 p.m., following a recitation of the Miranda [Fn.8] warning, Moore interviewed defendant at the Bakersfield Police Department. Defendant 25 acknowledged he used to live at a residence on Zelda Way for a “long time,” but his current living situation was “up in the air.” He denied having acquaintance with a 26 black Honda Accord. 27 [Fn.8] Miranda v. Arizona (1966) 384 U.S. 436.

28 6 1 f. Subsequent searches.

2 At the time of his arrest, officers seized defendant's wallet, cell phone, and glass methamphetamine pipe. The wallet contained the state identification card of a man 3 named Roop Sandhu. The cell phone contained Rocha's and McKeen's phone numbers. 4 Several videos were extracted from the cell phone. One video, which was about 13 5 minutes in length and marked and received into evidence as People's Exhibit No. 8– A, featured a conversation between a female and a male in which another male 6 interjected intermittently. For the majority of the video, which was filmed by the female, due to the placement of the camera, the faces of the speakers could not be 7 seen. Later, the female repositioned the camera, which showed (1) a male wearing a red hooded sweatshirt in a residential garage; and (2) a male wearing a white tank 8 top in a bedroom. The footage established the conversation was primarily between the female and the male wearing the red hooded sweatshirt, the latter of whom 9 sounded distraught. The male wearing the white tank top did not appear in the footage until after the female left the male wearing the red hooded sweatshirt in the 10 garage. At trial, Moore watched People's Exhibit No. 8–A. He identified the male in the red hooded sweatshirt as Sandhu, the male in the white tank top as defendant, 11 and the female voice as belonging to defendant's wife Melissa Vasquez. [Fn.9] Moore testified he could recognize Melissa's voice because he had spoken or 12 listened to her numerous times.3

13 [Fn.9] The record refers to defendant's wife as either Melissa Vasquez or Melissa Cornelius. To avoid confusion, we simply refer to her as Melissa. 14 Another video, which was about 10 minutes in length and marked and received into 15 evidence as People's Exhibit No. 9–A, featured a conversation between a male and female inside a moving vehicle at nighttime. During the conversation, the female 16 sounded distressed. Due to the darkness as well as the placement of the camera, the faces of the speakers could not be seen. At trial, Moore watched People's Exhibit 17 No. 9–A. He identified the male voice as belonging to defendant and the female voice as belonging to Dunn. Moore testified he could recognize their voices because 18 he had spoken or listened to them numerous times.4

19 On April 10, 2014, at approximately 8:35 p.m., officers executed a search warrant at 2001 Custer Avenue. They found a red Dynasty Motors paper plate on a hallway 20 countertop; photographs of defendant; a “Notice to Appear” bearing defendant's name; a utility bill addressed to defendant; and a “Probable Cause Determination” 21 listing 6812 Zelda Way as defendant's “last known address.” (Boldface & some capitalization omitted.) 22 g. Gang expert. 23 Officer Beagley, the prosecution's gang expert, testified the Varrio Bakers are a 24 criminal street gang in Bakersfield with “well over several hundred” members, most of whom are Hispanic. They claim as their “turf” the area of the city bordered by 25 Truxtun Avenue to the north, Eye Street to the west, Brundage Lane to the south, and either Dr. Martin Luther King Boulevard or Washington Street to the east. Their 26 27 3 For the sake of brevity, the Court will not recite the transcript of the video. The full transcript can be found in the documents lodged by Respondent. (Doc. 19-5 at 56-70.) 28 4 Here as well, the Court has excluded recitation of the transcript of the video. (Doc. 19-5 at 6-17.) 7 1 primary activities include murder, assault with a deadly weapon, illegal firearm possession, robbery, carjacking, automobile theft, drug sales, and vandalism. Varrio 2 Bakers members have been convicted of assault with a deadly weapon, assault with a firearm, illegal firearm possession, robbery, transportation of controlled 3 substances, and gang participation.

4 To identify themselves, Varrio Bakers sport tattoos of the name of the gang and/or abbreviations thereof, e.g., “V” (for Varrio) and “VB,” “VBKS,” and “VE BE” (for 5 Varrio Bakers). In addition, because Bakersfield is south of Delano, the “cutoff line” “separat[ing] Northern and Southern California,” Varrio Bakers are affiliated with 6 the Sureños and the Mexican Mafia. Hence, Varrio Bakers adopt symbols associated with the Sureños and the Mexican Mafia, including the color blue, the word “sur” 7 (for Sureños), the letter “M” (for Mexican Mafia), and the number “13” signifying the 13th letter of the alphabet “M” (for Mexican Mafia). 8 According to Beagley, “[r]espect amongst Varrio Bakers” is “huge.” He detailed: 9 “The one who is putting in the most work, the one who is active is going to 10 be more respected and be a higher rank. He's also going to be respected and feared by ... the rival gangs. [¶] ... [¶] ... It also goes to citizens. You know, 11 why put VB on your face? Why put VB on the back of your head? They demand respect. They think you'll respect them if they have these scary 12 tattoos on their head or their face. [¶] ... [¶] ... [Something] that comes to mind is a conversation ... with ... Dominick Pena[, a Varrio Baker].... I asked 13 him what he would do, basically, if he was disrespected. He said depending on the level of disrespect, he may give them an ass-whipping or he may kill 14 them, depending on how bad he was disrespected.”

15 Beagley watched People's Exhibit No. 8–A, the conversation between Melissa and Sandhu, and verified the filming took place in the garage of 6812 Zelda Way. He 16 remarked:

17 “I found it significant that [defendant's] wife, girlfriend, whatever, she was the one doing the—basically the interview of ... Sandhu. He was terrified out 18 of his mind and basically he was talking about how he messed up and he didn't do what he was supposed to do.... 19 “Tony was having him do crimes for him, so he didn't have to do them 20 himself. He was using somebody, basically a weak-minded individual to do some crimes for him. He was crying about it and was very scared of Tony. 21 He was terrified. After the video was done, it shows Tony asking Melissa, hey, did you get that, did you get that?” 22 With regard to Sandhu's comments about “never bring[ing] ... pigs to [defendant's] 23 house,” Beagley noted the repercussions of “snitching” in the context of gang culture: 24 “[S]nitching is basically tattling, tattle-telling, telling on each other for 25 crimes that have been committed. Snitching is frowned upon within gang culture.... [¶] ... [¶] ... [I]t could cost them their life. It could cause them to 26 be beat up, which is why we go out of our way to make sure that doesn't happen when we work with informants. We don't want them to be found 27 out.”

28 Beagley watched People's Exhibit No. 9–A, the conversation between defendant and 8 1 Dunn. He remarked:

2 “I talked about how respect is a big part of gang culture and gang lifestyle. In the video [defendant] tells ... Dunn—I remember him saying straight-up 3 disrespect, then he talked about basically, you know, if I let you get away with this, then the next one is going to try to get away with it. 4 “I found that very significant. It goes along the lines of respect of him and 5 demanding respect. And videotaping the deal of this, of ... Dunn basically terrified out of her mind, he's recording this incident basically to show that 6 he's a bad dude. He's a scary guy. He makes people cry.

7 “He can show other people this video of how bad of a guy he is.”

8 Based on police reports, photographs, and discussions with other officers, Beagley opined defendant was a Varrio Baker at the time of the 7–Eleven shooting. When 9 he was arrested, defendant was wearing blue attire. His body was covered with numerous gang-related tattoos, including the initials “VB” on his head and lower 10 thigh; the word “SUR” on his chest; the word “Baker” across his stomach; and the Roman numeral “X” on his right arm and the number “3” on his left arm, forming 11 the number “13.” Defendant was charged with murder, inter alia, one of the gang's primary activities. In a 1995 interview with a detective, defendant admitted 12 committing grand theft auto more than 10 times with two other Varrio Bakers members. In 2001, officers obtained photographs of defendant “throwing up the V 13 [sign]” for “Varrio Bakers” with either his hand or elbows. During a 2001 traffic stop of defendant's vehicle, officers found two loaded firearms, a significant amount 14 of methamphetamine, and a photograph of defendant with another Varrio Bakers member. In 2007, officers searched defendant's residence at 1115 Sandra Drive and 15 found two loaded firearms, an ounce of methamphetamine, and a belt buckle bearing the letter “V” for “Varrio,” leading to his arrest for selling drugs and illegally 16 possessing firearms. During a 2012 traffic stop of defendant's vehicle, officers found $1,200 and 12 grams of “bunk dope,” leading to his arrest for selling drugs. 17 Defendant then admitted being an active Varrio Baker and associating with other Varrio Bakers. In 2013, officers searched defendant's residence at 6812 Zelda Way 18 and found a loaded firearm and a large letter “V” spray-painted on the garage floor. Defendant claimed he “wasn't active because he was damn near 40” but 19 acknowledged he had not “dropped out” of the gang.

20 The prosecutor asked hypothetically whether a Varrio Baker would feel disrespected “if someone were to go up to ... [his] house and demand[ ] a car that is located at the 21 house, then being unable to get it, steal[ ] a car that's on the property of the house and ... specifically intend[ ] to make a scene for video[ ]cameras that are associated 22 with the house....” Beagley responded:

23 “Absolutely. [¶] ... [¶] ... I think it's one thing to disrespect a Varrio Baker out in the street or out in the hood but it's another thing to come to his house, 24 where his wife can live in, his kids can live in, his mom, and disrespect him severely. I mean, taking a car from his house; that's where he lives. That's 25 where his family is at. That's total disrespect. [¶] ... [¶]

26 “... [H]e's going to retaliate. He's going to retaliate severely. He may severely beat up the subject who did it. He may stab him. He may shoot him, kill 27 him.”

28 The prosecutor then asked how the Varrio Bakers benefit when the “Varrio Baker 9 1 gang member who has someone come to his house and ... steal[ ] a car from the house” “[comes] into contact with the stolen vehicle” and “fire[s] shots at the vehicle 2 and its occupants upon seeing it.” Beagley responded:

3 “Some of the benefits would be, basically, we're talking about respect. By coming to a Varrio Bakers' house where his wife could live, his kids could 4 live, and taking that car, even though there are cameras present, making a scene, would be very disrespectful to that Varrio Bakers gang member. 5 “By him retaliating upon seizing his vehicle, and retaliating, basically he was 6 disrespected. He's trying to gain that respect back. He's basically getting respect. On the benefit of the Varrio Bakers, basically it's showing that when 7 somebody disrespects one of its members, they take care of business. They go as far, even, to shoot and kill someone who even took some property from 8 their house.

9 “It shows that the gang itself is a violent gang. It sends a message to the rival gangs. It sends a message to the citizens of Bakersfield that Varrio Bakers 10 aren't to be messed with. I think it also raises the status of that Varrio Baker within his gang that he's a shooter. He's a killer. He would be somebody that 11 would have some influence on the gang. [¶] ... [¶]

12 “... I think the fact that the passenger also was shot and killed in the vehicle, basically that goes to show that if you disrespect a Varrio Baker, not only is 13 your life in danger, it could be somebody you're with. It could be your mom, a child. No one is safe around you once you commit that level of disrespect 14 against a member of the Varrio Bakers. [¶] ... [¶]

15 “... [I]t strikes fear into the community. I've talked about some different times where citizens were victimized by Varrio Bakers. It may prevent 16 citizens who are victimized in the future—they may not cooperate. They'll give them their property. They won't fight back. 17 “If they witness a crime, they may not want to testify because they know 18 what the Varrio Bakers gang members are capable of.”

19 II. Defense's case-in-chief.

20 a. Jazmine Barron. 21 Barron lived with Rocha in November 2013. He used and sold drugs and “always” carried a gun “because he had a lot of problems.” Rocha also possessed a “bad 22 temper” and threatened others with the gun “when it wasn't his way.” At trial, Barron viewed a photograph of the revolver retrieved from bushes adjacent to 7–Eleven's 23 parking lot on the night of the shooting and testified it belonged to Rocha.

24 In early 2014, Rocha told Barron he “was coming back from Baja, California” or “Calexico” with a black Honda containing heroin. Later, he mentioned he gave the 25 car to McKeen “to get what he wanted from her,” but she “sold the car” without telling him. 26 Barron first met defendant “when [she] was running around in the streets homeless” 27 and considered him “a friend.” She has “never seen him get violent.” Barron also knew Dunn, describing her as someone who “was always there” and “would do 28 anything and everything she can just to be with [defendant].” 10 1 b. Heather Stewart.

2 Stewart dated Rocha's roommate and lived with the men in September and October 2013. At the outset, she thought Rocha was “an okay guy.” However, Stewart later 3 discovered he was abusive towards women. One time, Rocha showed her his gun, which he named “bitch” and “always” “carried ... with him.” It was “dark in color,” 4 “very heavy,” and “had a long barrel.” At trial, Stewart viewed a photograph of the revolver retrieved from bushes adjacent to 7–Eleven's parking lot on the night of the 5 shooting and testified Rocha's gun “looked like that.”

6 Stewart knew defendant and considered him a friend. She was at his house when “a girl had brought [him]” a black Honda. Subsequently, Stewart learned from Rocha 7 the Honda belonged to him and he stole defendant's Saturn in turn. He also revealed the vehicle contained two pounds of heroin and he “was late on a deal where he was 8 supposed to drop that car off,” putting his life at risk. Stewart told Rocha she knew defendant and was willing to facilitate a trade. She phoned defendant and arranged 9 a swap. When Stewart went to defendant's house, however, defendant and his family had already moved out. 10

11 Vasquez, 2018 WL 716845, at *2–16 .

12 III. DISCUSSION

13 A. Jurisdiction

14 Relief by way of a petition for writ of habeas corpus extends to a person in custody

15 pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

16 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

17 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

18 guaranteed by the United States Constitution. The challenged conviction arises out of the Kern

19 County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. §

20 2254(a); 28 U.S.C.§ 2241(d).

21 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

22 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

23 enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

24 filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

25 and is therefore governed by its provisions.

26 B. Legal Standard of Review

27 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

28 the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision 11 1 that was contrary to, or involved an unreasonable application of, clearly established Federal law,

2 as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was

3 based on an unreasonable determination of the facts in light of the evidence presented in the State

4 court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

5 Williams, 529 U.S. at 412-413.

6 A state court decision is “contrary to” clearly established federal law “if it applies a rule

7 that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

8 of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

9 different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-

10 406).

11 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

12 an “unreasonable application” of federal law is an objective test that turns on “whether it is

13 possible that fairminded jurists could disagree” that the state court decision meets the standards

14 set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

15 application of federal law is different from an incorrect application of federal law.’” Cullen v.

16 Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from

17 a federal court “must show that the state court’s ruling on the claim being presented in federal

18 court was so lacking in justification that there was an error well understood and comprehended in

19 existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

20 The second prong pertains to state court decisions based on factual findings. Davis v. 21 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

22 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

23 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

24 facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

25 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s

26 factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable 27 among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-

28 1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004). 12 1 To determine whether habeas relief is available under § 2254(d), the federal court looks to

2 the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

3 Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

4 2004). “[A]lthough we independently review the record, we still defer to the state court’s

5 ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

6 The prejudicial impact of any constitutional error is assessed by asking whether the error

7 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

8 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

9 (holding that the Brecht standard applies whether or not the state court recognized the error and

10 reviewed it for harmlessness).

11 C. Review of Petition

12 Petitioner raises ten claims in his petition: 1) The pretrial identification of Petitioner was

13 unduly suggestive and unnecessary in violation of his due process rights; 2) The trial court failed

14 to instruct on self-defense and imperfect self-defense in violation of Petitioner’s due process

15 rights; 3) Defense counsel was ineffective in failing to request instruction on perfect and

16 imperfect self-defense; 4) Petitioner was denied due process by the admission of prejudicial gang

17 evidence and by the instruction that permitted the jury to consider gang evidence on the issue of

18 motive; 5) Petitioner was denied due process by the admission of prejudicial video evidence that

19 served no other purpose than to show his evil character to establish a probability of his guilt; 6)

20 The prosecutor committed misconduct by arguing facts not in evidence; 7) The trial court erred 21 by excluding admissible hearsay of a witness thereby denying Petitioner his right to present a

22 complete defense; 8) Petitioner was wrongly given an elevated sentence for attempted murder

23 without a proper jury finding that the crime was willful, deliberate and premeditated as required

24 by Apprendi; 9) The conviction for criminal threats was unsupported by substantial evidence

25 showing a true threat within the meaning of Cal. Penal Code § 422; and 10) The cumulative

26 impact of the series of trial errors denied Petitioner his right to a fair trial. 27 1. Pretrial Identification

28 Petitioner first claims the trial court erred in admitting a pretrial identification because the 13 1 identification procedure was unduly suggestive and unnecessary. Petitioner raised this claim on

2 direct review. In the last reasoned decision, the Fifth DCA denied the claim as follows:

3 a. Background.

4 At the June 2014 preliminary hearing, Rocha testified he was “70 percent” certain that defendant was the 7–Eleven gunman. 5 Defendant moved in limine to “[e]xclude testimony or evidence of a photo lineup 6 as unduly suggestive.” (Boldface omitted.) The prosecutor opposed the motion. Thereafter, the court conducted a hearing pursuant to Evidence Code section 402. 7 Defense investigator Mattson testified she interviewed Rocha in county jail on 8 September 4, 2014. When asked whether he “was able to get a look at the person who fired the shots” at 7–Eleven, Rocha said he “didn't see” the gunman and “just 9 saw that he had a beanie.” Concerning the interview at the Bakersfield Police Department, during which he was shown defendant's photograph, Rocha recounted 10 “the officer kept pointing at the picture” and “told him that they had [defendant] on an ankle monitor in that area.” Rocha told Mattson “something about feeling 11 pressured ... to say it was [defendant].” He further disclosed he “spoke to someone from the D.A.'s office about the case.” Rocha was “promised ... the moon and stars” 12 “if he identified [defendant] as the shooter” but “threatened ... with jail if he [did] not say it was [defendant].” Finally, he told Mattson he “made an assumption based 13 on the dark-colored car,” “made an assumption that it was [defendant] because he had bad history with him,” “didn't know for sure that that was the car,” and “did not 14 see who the shooter was.” 15 Rocha testified he did not “remember much” about the 7–Eleven shooting. He recalled being in the passenger seat when he heard a gunshot. Rocha “barely 16 looked,” saw a black car, and “threw [himself] in between the seats.” He emphasized, “[A]ll I saw was a guy with a beanie and goatee, the black car.” During 17 an interview with a detective at the Bakersfield Police Department, Rocha was shown “a lot of pictures.” The detective “mentioned something about [a] monitor 18 that went off at [the] time of the crime,” “pointed [at a] picture” of defendant, and “asked ... if [defendant] was the person.” Rocha, who had “never seen [defendant] 19 before,” “[felt] pressure when [the detective] point [ed] the finger and ask[ed] ... ‘Is this the person?’ ” and answered, “[M]aybe.” 20 On cross-examination, Rocha testified his memory of the 7–Eleven shooting was 21 not “better ... the day that it happened than it [was] ... eight months later.” He “[didn't] think” he phoned 911 immediately after the shooting but acknowledged 22 doing so after he heard a recording of his 911 call, in which he described the gunman's vehicle as a black Honda Accord. Rocha then heard recordings of his 23 subsequent interviews with officers and acknowledged telling them the gunman was a Hispanic male with a beanie and goatee and he “saw [the gunman's] face.” He also 24 acknowledged saying, “If I see him, I'll know him.” With regard to his interaction with the district attorney's office, Rocha conceded he was never “specifically told 25 that [he] had to identify [defendant]” and was “repeatedly told that the only thing ... expect[ed] from [him] [was] the truth.” 26 Moore testified he first interviewed Rocha at Kern Medical Center. There, Rocha 27 verified the 7–Eleven gunman drove a black Honda and stated he “saw the driver very well.” He also expressed “wanting to get his daughter out of town before he 28 started saying names.” Afterward, Moore “received information from multiple 14 1 sources” about an “ongoing feud” between Rocha and defendant “regarding the black Honda,” contacted Miller, and confirmed the GPS data from defendant's ankle 2 monitor placing defendant at 7–Eleven at the time of the shooting. During the interview with Rocha at the Bakersfield Police Department, without mentioning 3 defendant's name, Moore told Rocha “that the guy that he was in a dispute with over the car, his GPS had put him at the 7–Eleven gas station at the time of the shooting.” 4 Moore divulged this information because he “wanted [Rocha] to feel comfortable that we were going to protect him the best we could.” Later, Moore showed Rocha 5 a photograph of defendant and asked, “Is this the guy that shot you?” Rocha responded in the affirmative. As to why he showed Rocha defendant's photograph, 6 Moore explained:

7 “I had multiple reasons. One of the main ones is it was apparent to me that the two men had a relationship, and that ... Rocha knew [defendant]. [¶] And 8 I was confirming that the Tony Vasquez that I believed it was was the same Tony Vasquez that he was talking about. 9 “The other reason is we were actively looking for [defendant], and I also 10 wanted to make sure that this was the right person that we were talking about and not some other relative or unknown Tony Vasquez.” 11 The court admitted Rocha's pretrial identification testimony: 12 “In regard to showing [Rocha] the one photograph which Detective Moore 13 showed, in regard to that, I do believe that that was unduly suggestive and unnecessary. [¶] ... [¶] 14 “Given the totality of the circumstances of the numerous statements made 15 by [Rocha] before and also during the time that the photograph was shown, there is a level of certainty that would allow this information to be provided 16 to the jury by way of testimony.”

17 b. Analysis.

18 “A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, 19 although we review the determination of historical facts regarding the procedure under a deferential standard.” (People v. Clark (2016) 63 Cal.4th 522, 556–557.) 20 “In order to determine whether the admission of identification evidence violates a 21 defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the 22 identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect 23 at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty 24 demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) 25 “Moreover, there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘“‘totality of the circumstances’”’ to warrant reversal of a conviction on 26 this ground.” (Id. at p. 990.) 27 Assuming, arguendo, Rocha's pretrial identification testimony was obtained through an impermissibly suggestive procedure, in view of the totality of the circumstances, 28 we find no substantial likelihood of irreparable misidentification. The record shows 15 1 Rocha loaned his friend's black four-door 2011 Honda Accord with a red Dynasty Motors paper plate to McKeen, who, in turn, sold the car to someone named “Tony 2 Vasquez or Velasquez.” She brought Rocha to 6812 Zelda Way, one of defendant's known addresses, where the Honda Accord was parked on the front lawn. 3 Individuals standing outside the residence told Rocha that “Tony” “wasn't home.” After Rocha took the Saturn from 6812 Zelda Way, he obtained “Tony's” cell phone 4 number from McKeen and contacted him to set up an exchange. Following defendant's arrest, officers seized defendant's cell phone, which contained Rocha's 5 and McKeen's phone numbers. Officers later searched 2001 Custer Avenue, another of defendant's known addresses, and found a detached red Dynasty Motors paper 6 plate, inter alia. Miller's testimony further verified defendant possessed a black Honda Accord more than a week before the 7–Eleven shooting. 7 On the morning of the 7–Eleven shooting, although Rocha glanced momentarily at 8 the gunman, he nonetheless was able to discern the gunman was a Hispanic male with a beanie and goatee in the driver's seat of the Honda Accord. Rodrigo, a 9 percipient witness, saw a black four-door sedan. Within minutes of the shooting, Rocha (1) phoned 911 and identified the gunman's vehicle as a black Honda Accord; 10 and (2) told officers who arrived on the scene the gunman was a Hispanic male with a beanie and goatee in a black car. In subsequent interviews with officers at Kern 11 Medical Center, he reiterated the gunman was a Hispanic male with a beanie and goatee, adding he “saw [the gunman's] face” and could identify him “[i]f [he] s[aw] 12 him” again. (Cf. People v. Kennedy (2005) 36 Cal.4th 595, 611 [length of time between crime and identification “only three weeks”], disapproved in part by People 13 v. Williams (2010) 49 Cal.4th 405, 459.)

14 Over 11 hours after the shooting and six hours after being discharged from the hospital, Rocha spoke with Moore at the Bakersfield Police Department. Before 15 Moore displayed defendant's photograph, he told Rocha “the guy who[m] [Rocha] had conflict with” over the Honda Accord wore an ankle monitor and the GPS data 16 from that monitor placed “the guy” at 7–Eleven at the time of the shooting. According to Rocha, he already knew “the guy,” i.e., Tony Vasquez or Velasquez, 17 “had a monitor.” When he was shown defendant's photograph and asked whether defendant was the gunman, Rocha promptly answered, “Yeah, if you put a beanie 18 on him.” At the preliminary hearing, Rocha testified he was “70 percent” certain that defendant was the gunman. 19 GPS data from defendant's ankle monitor confirmed (1) defendant was at 7–Eleven 20 at the exact time the shooting occurred; and (2) defendant fled from 7–Eleven on foot immediately after the shooting occurred. GPS data also placed defendant at 21 ampm a few minutes before the shooting and at a Denny's restaurant more than two hours after the shooting; concurrent surveillance footage recorded at these 22 establishments corroborated the data. In particular, ampm's footage captured defendant alongside a black car. (See People v. McGriff (1984) 158 Cal.App.3d 23 1151, 1157 [“Although evidence against appellant was largely circumstantial, the circumstantial evidence was overwhelming.”].) 24

25 Vasquez, 2018 WL 716845, at *19-21.

26 a. Legal Standard

27 Due process prohibits the admission of eyewitness identifications obtained after police

28 have arranged identification procedures so impermissibly suggestive as to give rise to a “‘very 16 1 substantial likelihood of irreparable misidentification.’” Perry v. New Hampshire, 565 U.S. 228,

2 232 (2012) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). Courts employ a two-

3 part analysis to evaluate whether an identification has been irreparably tainted by an

4 impermissibly suggestive pretrial identification procedure. See United States v. Love, 746 F.2d

5 477, 478 (9th Cir. 1984). The first step is to determine whether the pretrial identification was

6 unduly suggestive. Simmons, 390 U.S. at 384. This may occur when a photographic

7 identification procedure “emphasize[s] the focus upon a single individual,” thereby increasing the

8 likelihood of misidentification. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985).

9 Whether an identification procedure was unduly suggestive is a fact-specific determination,

10 which may involve consideration of the size of the array, the manner of its presentation by the

11 officers, and the details of the photographs themselves. Id.

12 If the identification procedure was unduly suggestive, the second step requires a

13 determination of whether the totality of the circumstances surrounding the eyewitness's

14 identification indicates that the identification was nonetheless reliable. Neil v. Biggers, 409 U.S.

15 188, 199 (1972); Simmons, 390 U.S. at 383. Factors considered in assessing reliability include:

16 (1) the opportunity to view the criminal at the time of the crime; (2) the witness's degree of

17 attention; (3) the accuracy of the prior description; (4) the witness's level of certainty at the

18 confrontation; and (5) the length of time between the crime and the identification. Neil, 409 U.S.

19 at 199-200; Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The corrupting effect of the

20 suggestive identification itself is to be weighed against these factors. Id. Where “the indicia of 21 reliability are strong enough to outweigh the corrupting effect of the police arranged suggestive

22 circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately

23 determine its worth.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012).

24 Further, any possible prejudice that the defendant may have suffered from suggestive

25 identification procedures may be mitigated by cross-examination and other courtroom safeguards.

26 See Simmons, 390 U.S. at 384 (danger that photo lineup technique may result in conviction based 27 on misidentification may be lessened by cross-examination at trial).

28 17 1 b. Analysis

2 In this case, the state court assumed that the identification procedure was impermissibly

3 suggestive; however, the court determined that there was no substantial likelihood of

4 misidentification. The state court determination was not objectively unreasonable.

5 Considering the totality of the circumstances, there is no reasonable likelihood of

6 irreparable misidentification. As noted by the appellate court, Rocha stated he had seen the

7 gunman’s face and could identify him “if he saw him” again. Vasquez, 2018 WL 716845, *21.

8 He advised officers who arrived on the scene that the gunman was a Hispanic male with a beanie

9 and a goatee, and he was in a black Honda Accord. Id. When Rocha was shown a photograph of

10 Petitioner, he immediately identified him as the gunman. Id. Rocha’s identification was

11 corroborated with substantial evidence. Id. GPS data from Petitioner’s ankle monitor confirmed

12 he was at the AM/PM minimart at the exact time of the shooting. Id. It further showed Petitioner

13 fled immediately after the shooting. Id. In addition, video surveillance footage captured

14 Petitioner at the AM/PM standing alongside a black car. Id.

15 Based on the foregoing, Petitioner has failed to demonstrate that the state court rejection

16 of his claim was contrary to clearly established Supreme Court precedent, or that the state court’s

17 decision was an unreasonable application of the factors noted above. Therefore, the claim should

18 be denied.

19 2. Instructional Error

20 Petitioner states there was evidence to support a theory that victim Rocha had a gun and 21 may have fired one or two shots first. He claims the trial court committed prejudicial error by

22 failing to instruct on self-defense and imperfect self-defense. Petitioner presented this claim on

23 direct appeal. The Fifth DCA denied the claim in the last reasoned decision as follows:

24 a. Background. 25 At the jury instruction conference, the following exchange transpired: 26 “THE COURT: And just so we're clear, I did not hear any substantial evidence that would necessitate giving a[n] ... instruction on voluntary 27 manslaughter or any on self-defense or any related instructions. [¶] Any record either counsel would like to make in that regard? 28 18 1 “[DEFENSE COUNSEL]: Neither of those instructions are being requested by the defense. 2 “[PROSECUTOR]: Submit, your Honor.

3 “THE COURT: Okay. ...”

4 In his summation, defense counsel theorized Rocha provoked the shooting at 7– Eleven: 5 “[W]hat if [Rocha] actually had that gun that we talked about that we knew 6 that he did have and of course he denies ever brandishing. What if that gun was—when [Rocha] saw that Honda come up, recognized the Honda. 7 Knows I gotta get that car back because I want that heroin, otherwise, I'm gonna get killed for not delivering the heroin that I smuggled up here from 8 Mexico. And so he pulls his gun because I'm going to get that car back.

9 “... We know [Rocha] had a gun. We know he was furious about not having that Honda, whether it was really for heroin reasons or not. We know that he 10 previously went to [defendant]'s house and threatened him through the security cameras. So this wouldn't necessarily be out of character for [Rocha] 11 to start threatening again. [¶] ... [¶]

12 “Evidence that [Rocha] brandished his gun. Was there anything that supports that theory? Absolutely. What was the first thing [Rocha] did after the shots 13 were fired? Before he called 911. Before he checked on his friend who was sitting next to him, shot in the head, what was the first thing he did? He took 14 his gun and he went and hid his gun in the bushes.

15 “Why? Why do you need to hide your gun if you haven't done something with it that you weren't supposed to do? What reason is there? There's no 16 reason. The only reason you go and you hide your gun before you call 911, before you check on your friend who has just been shot in the head is because 17 you don't want to get in trouble because you've done something with that gun that you weren't supposed to do, like point it at someone who then fired 18 back at you.

19 “And then he lies about the gun and continues to lie about the gun to the police. Why? Because he doesn't want them to know he had a gun because 20 he did something he was not supposed to do with that gun and he doesn't want to get in trouble. That's why he hid the gun. That's why he lied about 21 the gun. That's why he continues to lie about the gun. Again, why would he need to lie about the gun if he hadn't done anything wrong with that gun? 22 “And there are times in the interview and you can go back and listen to them 23 and watch them all.... [Rocha] repeatedly tells Detective Moore that he feels guilty and he feels like he got his friend killed. He feels like his friend's 24 family is going to bring this back on him like he's the reason that [Ortiz] is dead. 25 “Maybe he's being honest there. Maybe he is the reason [Ortiz is] dead. 26 Maybe if [Rocha] hadn't pulled his gun and acted like a lunatic, trying to get that heroin in that car back, no shots would have been fired that night. [Ortiz] 27 would still be here. We wouldn't be here. [Rocha] feels guilty because he did pull that gun and that set everything in motion.” 28 19 1 b. Analysis—instruction on self-defense.

2 “‘“It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the 3 evidence”’ and ‘“necessary for the jury's understanding of the case.”’ [Citations.] It is also well settled that this duty to instruct extends to defenses ‘if it appears ... the 4 defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of 5 the case.’ [Citations.]” (People v. Brooks (2017) 3 Cal.5th 1, 73.)

6 “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 7 (Humphrey).) “‘[T]he circumstances must be sufficient to excite the fears of a reasonable person....’ [Citations.] Moreover, ... the fear must be of imminent harm. 8 ‘Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent 9 danger to life or great bodily injury.’ [Citation.]” (Ibid.) “‘[A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances. 10 [Citation.]’” (People v. Minifie (1996) 13 Cal.4th 1055, 1065.)

11 At the motion hearing, defense counsel asserted the evidence would show Rocha “may have ... attempted to use [a] gun or used [a] gun [the] night [of the shooting] 12 prompting whatever shooting may have occurred afterwards.” (See ante, at p. 60.) He reiterated as much in his summation to the jury, even though he had seemingly 13 accepted at the jury instruction conference the court's conclusion that the evidence did not warrant a self-defense instruction. On appeal, defendant insists a “[f]ailure 14 to properly instruct on self-defense is reviewed as federal constitutional error” under the “harmless beyond a reasonable doubt” standard prescribed in Chapman v. 15 California (1967) 386 U.S. 18, 24 (Chapman).

16 Assuming, arguendo, the court's decision not to instruct the jury on self-defense violated defendant's constitutional rights, such an error was harmless under either 17 Watson or Chapman because any evidence supporting of self-defense “was, at best, extremely weak.” (People v. Sakarias (2000) 22 Cal.4th 596, 621; accord, People v. 18 Manriquez (2005) 37 Cal.4th 547, 582–583.) Rodrigo, a percipient witness, did not observe anything that would have corroborated defense counsel's account. 19 Furthermore, the record established (1) defendant arrived at 7–Eleven after Rocha and Ortiz; (2) defendant was at 7–Eleven for only a few seconds; (3) immediately 20 following defendant's arrival, three shots were fired; (4) immediately following the gunfire, defendant fled the scene; and (5) none of the shots were fired by Rocha or 21 Ortiz. (See ante, at pp. 53, 61–62.) In other words, there was little direct or circumstantial proof “‘defendant was actually in fear of his life or serious bodily 22 injury’” (People v. Watie (2002) 100 Cal.App.4th 866, 877), “‘the conduct of [Rocha and/or Ortiz] was such as to produce that state of mind in a reasonable 23 person’” (ibid.), and “‘defendant's fear [was] of imminent danger to life or great bodily injury’” (Humphrey, supra, 13 Cal.4th at p. 1082, italics omitted). 24 c. Analysis—instruction on voluntary manslaughter via imperfect self- 25 defense.

26 “‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the 27 evidence. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) “That obligation has been held to include giving instructions on lesser 28 included offenses when the evidence raises a question as to whether all of the 20 1 elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” (Ibid.) “[T]he 2 existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that 3 the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is 4 ‘“evidence from which a jury composed of reasonable [persons] could ... conclude []”’ that the lesser offense, but not the greater, was committed.” (Id. at p. 162.) 5 “‘Murder is the unlawful killing of a human being with malice aforethought. 6 [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of ... voluntary manslaughter. [Citation.]’ [Citation.] 7 Generally, the intent to unlawfully kill constitutes malice. [Citations.] ‘But a defendant who intentionally and unlawfully kills lacks malice ... when the defendant 8 kills in “unreasonable self-defense”—the unreasonable but good faith belief in having to act in self-defense [citations].’ [Citation.] Because ... unreasonable self- 9 defense reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a 10 homicide [citation], voluntary manslaughter of [this] ... form[ ] is considered a lesser necessarily included offense of intentional murder [citation].” (Breverman, supra, 11 19 Cal.4th at pp. 153–154, italics & fn. omitted.)

12 “Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, 13 believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater 14 than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) “[T]he doctrine is narrow. It requires without exception that the defendant must have had 15 an actual belief in the need for self-defense.... Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. 16 The defendant's fear must be of imminent danger to life or great bodily injury.” (Id. at p. 783.) 17 Both self-defense and imperfect self-defense require the accused to have a 18 subjective belief in the need to defend and a fear of imminent danger. (See Humphrey, supra, 13 Cal.4th at p. 1082.) As we previously discussed, however, 19 there was little direct or circumstantial proof of these elements. (See ante, at pp. 67– 68.) Hence, we necessarily conclude there was no “‘“evidence from which a jury 20 composed of reasonable [persons] could ... conclude[ ]”’ that the lesser offense, but not the greater, was committed” (Breverman, supra, 19 Cal.4th at p. 162) and no 21 instruction on voluntary manslaughter via imperfect self-defense was warranted.

22 Vasquez, 2018 WL 716845, at *31–34. 23 a. Teague 24 Respondent contends that part of Petitioner’s claim, specifically Petitioner’s claim that the 25 trial court was required to instruct on lesser-included offenses, is barred by Teague v. Lane, 489 26 U.S. 288 (1989). Under Teague, a new constitutional rule of criminal procedure will not be 27 applied or announced on federal habeas review unless it places certain primary individual conduct 28 21 1 beyond the States’ power to proscribe or is a “watershed” rule of criminal procedure. Id. at 310.

2 “In general . . . a case announces a new rule when it breaks new ground or imposes a new

3 obligation on the States or the Federal Government.” Id. at 301. When Teague is properly raised

4 by the State, “the court must apply Teague before considering the merits of the claim.” Horn v.

5 Banks, 536 U.S. 266, 267 (2002) (per curiam).

6 Once raised, Petitioner bears the burden of demonstrating that the rule is not new, but

7 compelled by existing precedent. O’Dell v. Netherland, 521 U.S. 151, 156 (1997). Teague is

8 analyzed using a three-step approach: 1) The court must ascertain the date on which the

9 defendant’s conviction and sentence became final; 2) The court must “survey the legal landscape

10 as it then existed,” and “determine whether a state court considering the defendant’s claim at the

11 time the conviction became final would have felt compelled by existing precedent to conclude

12 that the rule the defendant seeks was required by the Constitution”; and 3) “[I]f the court

13 determines that the defendant seeks the benefit of a new rule, the court must decide whether that

14 rule falls within one of two narrow exceptions to the nonretroactivity principle.” Caspari v.

15 Bohlen, 510 U.S. 383, 390 (1994). One exception concerns new rules placing “certain kinds of

16 primary, private individual conduct beyond the power of the criminal law-making authority to

17 proscribe.” Teague, 489 U.S. at 290. The second exception is for “watershed rules of criminal

18 procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”

19 Whorton v. Bockting, 549 U.S. 406, 417 (2007). The second exception is extremely narrow, and

20 the Supreme Court has observed “that it is unlikely that any such rules ha[ve] yet to emerge[].” 21 Id. at 418.

22 As correctly noted by Respondent, there is no clearly established federal constitutional

23 right to lesser-included offense instructions in non-capital cases. United States v. Rivera-Alonzo,

24 584 F.3d 829, 834 n. 3 (9th Cir. 2009) (citing Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000)).

25 The Court cannot find a constitutional right to a lesser-included offense instruction here as that

26 would require the application of a new rule of law, something the court cannot do under the 27 holding in Teague. See Solis, 219 F.3d at 929 (habeas relief for failure to instruct on lesser

28 included offense in non-capital case barred by Teague because it would require the application of 22 1 a new constitutional rule); Turner v. Marshall, 63 F.3d 807, 819 (9th Cir.1995), overruled on

2 other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir.1999) (en banc) (same). In addition, the

3 two exceptions in Teague do not apply. The first exception does not apply because Petitioner is

4 not seeking a rule that would place “certain kinds of primary, private individual conduct beyond

5 the power of the criminal law-making authority to proscribe.” Teague, 489 U.S. at 290. The

6 second exception does not apply because the rule Petitioner is seeking cannot be considered a

7 “watershed” rule “implicating the fundamental fairness and accuracy of the criminal proceeding.”

8 Id.

9 b. Failure to State a Cognizable Claim

10 In addition, the claim fails to present a federal question. See Windham v. Merkle, 163

11 F.3d 1092, 1106 (9th Cir. 1998) (“[T]he failure of a state trial court to instruct on lesser included

12 offenses in a non-capital case does not present a federal constitutional question.”). For the same

13 reasons, Petitioner’s claim cannot survive scrutiny under 28 U.S.C. § 2254(d). Federal habeas

14 relief is barred unless Petitioner can demonstrate that the state court’s alleged failure was contrary

15 to, or an unreasonable application of, clearly established federal law as determined by the

16 Supreme Court. Since there is no clearly established Supreme Court authority requiring lesser-

17 included offense instructions in a non-capital case, Petitioner’s claim is barred under § 2254(d).

18 3. Ineffective Assistance of Counsel

19 In a related claim, Petitioner alleges defense counsel was ineffective in failing to request

20 instructions on perfect and imperfect self-defense. Petitioner also raised this claim on direct 21 appeal. In the last reasoned decision, the Fifth DCA denied the claim as follows:

22 “In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant 23 suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 24 687–692 (Strickland).) “To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance ‘“‘“fell below an objective standard 25 of reasonableness ... under prevailing professional norms.”’”’ [Citation.]” (People v. Mickel, supra, at p. 198.) “To demonstrate prejudice, defendant bears the burden 26 of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citations.]” (Ibid.) “‘A 27 reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (People v. Ledesma (1987) 43 Cal.3d 171, 218, quoting Strickland, 28 supra, at p. 694.) 23 1 “‘[A] court need not determine whether counsel's performance was deficient before 2 examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of 3 lack of sufficient prejudice, ... that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, supra, 466 U.S. at p. 697.) 4 At the jury instruction conference, defense counsel appeared to acquiesce in the 5 court's conclusion it “did not hear any substantial evidence that would necessitate giving a[n] ... instruction on voluntary manslaughter or any on self-defense or any 6 related instructions” and decided not to request such instructions. In his summation, though, he still argued Rocha provoked the 7–Eleven shooting in his summation. 7 (See ante, at pp. 65–66.) Notwithstanding this incongruity, we find no reasonable probability of a more favorable verdict for defendant had instructions on self- 8 defense and voluntary manslaughter via imperfect self-defense been requested and given. Both self-defense and imperfect self-defense require the accused to have a 9 subjective belief in the need to defend and a fear of imminent danger. (See Humphrey, supra, 13 Cal.4th at p. 1082.) As we previously discussed, however, 10 there was little direct or circumstantial proof of either element. (See ante, at pp. 67– 68.) Instead, the evidence supported defendant's convictions for first-degree murder, 11 attempted murder, shooting at an occupied motor vehicle, and illegal firearm possession. (See ante, at pp. 44–45, 53, 61–62, 67–68.) 12

13 Vasquez, 2018 WL 716845, at *34-35.

14 a. Legal Standard

15 Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth

16 Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of

17 counsel are reviewed according to Strickland's two-pronged test. Strickland v. Washington, 466

18 U.S. 668, 687-88 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v.

19 Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75 (1988) (holding

20 that where a defendant has been actually or constructively denied the assistance of counsel

21 altogether, the Strickland standard does not apply and prejudice is presumed; the implication is

22 that Strickland does apply where counsel is present but ineffective).

23 To prevail, Petitioner must show two things. First, he must establish that counsel’s

24 deficient performance fell below an objective standard of reasonableness under prevailing

25 professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he

26 suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional

27 errors, he would have prevailed on appeal. Id. at 694. A “reasonable probability” is a probability

28 sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what 24 1 counsel could have done; rather, it is whether the choices made by counsel were reasonable.

2 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

3 With the passage of the AEDPA, habeas relief may only be granted if the state-court

4 decision unreasonably applied this general Strickland standard for ineffective assistance.

5 Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a

6 federal court believes the state court’s determination under the Strickland standard “was incorrect

7 but whether that determination was unreasonable–a substantially higher threshold.” Schriro v.

8 Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard

9 is “doubly deferential” because it requires that it be shown not only that the state court

10 determination was erroneous, but also that it was objectively unreasonable. Yarborough v.

11 Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a

12 state court has even more latitude to reasonably determine that a defendant has not satisfied that

13 standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule

14 application was unreasonable requires considering the rule’s specificity. The more general the

15 rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”)

16 b. Analysis of Claim

17 The state court correctly analyzed the claim using the Strickland standard. Therefore, the

18 only question before this Court is whether the application was objectively unreasonable. The

19 Court finds that it was not.

20 The state court reasonably determined that Petitioner suffered no prejudice. Assuming 21 defense counsel erred by failing to request instructions on self defense, there is no reasonable

22 likelihood that the result would have been different. As noted by the trial court, there was scant

23 evidence from which a jury could find that defendant acted in fear of his life or serious bodily

24 injury. On the other hand, the evidence supporting Petitioner’s convictions, including eyewitness

25 testimony, video surveillance footage, GPS monitoring data, and ballistics, was substantial.

26 Accordingly, even if counsel had requested self defense instructions, it is clear it would not have 27 affected the outcome. The state court’s decision was not unreasonable and the claim should be

28 rejected. 25 1 4. Bifurcation

2 Petitioner claims the trial court erred by failing to bifurcate the trial of the gang allegations

3 from the other charges. He further claims he was prejudiced by the trial court’s instruction that

4 the jury could consider gang evidence to prove motive. Petitioner raised this claim on direct

5 review, and it was denied by the Fifth DCA as follows:

6 a. Background. 7 Beagley first testified about his expertise on the Varrio Bakers at the June 2014 preliminary hearing. He specified the primary activities of the gang include 8 “[m]urder, weapons violations, robbery, carjacking, grand theft auto, vandalism, [and] narcotic sales.” Beagley offered the following predicate offenses to establish 9 a pattern of criminal gang activity: (1) assault with a deadly weapon; (2) transportation of a controlled substance; (3) kidnapping to commit robbery; and (4) 10 possession of a firearm by a felon. These predicate offenses were attributed to various members of the Varrio Bakers; none were attributed to defendant. Beagley 11 then discussed the importance of respect and fear to the Varrio Bakers. 12 Beagley concluded defendant was an active member of the Varrio Bakers at the time of the 7–Eleven shooting. He based his opinion on police reports documenting 13 various contacts with defendant; defendant's numerous gang-related tattoos; defendant's admission of his gang membership; and defendant's arrest in the instant 14 case for crimes in which Varrio Bakers primarily engage. As to whether defendant “shooting at [Rocha] or ... shooting at the [Saturn]” would “benefit, if at all, the 15 Varrio Bakers.” Beagley answered: 16 “It benefits the Varrio Bakers ‘cause ... [defendant] is from the Varrio Bakers. Like he mentioned [in] the video that we saw [involving Dunn], if 17 he ... let them get away with this one what's going to stop the next from doing it. He's talking about respect and being disrespected, being punked. 18 “He had to react to this because, you know, if he let, you know, a drug user 19 or tweaker like Rocha disrespect him and punk him, what's going to stop the next guy from trying to do that or disrespecting the Varrio gang himself. 20 There would [be] loss of respect for the gang and for [defendant].” 21 At the preliminary hearing, the prosecutor offered a possible motive for the 7– Eleven shooting: 22 “We consider the importance of respect [to defendant]. We take the 23 knowledge we have from Officer Beagley that [defendant]'s a member of the Varrio Bakers, and we combine that and we think what would a Varrio Baker 24 do, particularly what would [defendant] do if this type of offense were perpetrated upon him. 25 “And when [Rocha] takes that car in the manner that he does and then has 26 the nerve to keep calling and trying to use it as [a] bargaining chip, I think that that is a level of disrespect that [defendant] simply would not tolerate. 27 [¶] ... [¶] 28 “The People's position is that [defendant] has engrained this gang life-style 26 1 and this culture, as ridiculous as it may be, into his own persona so when ... Rocha does what he did [defendant] had to respond. He had to respond 2 because the reputation of himself, of the gang and the ability of the gang to continue to command respect from other people in the community or from 3 other gang members was at stake.”

4 Defendant moved to bifurcate the gang enhancement allegations, asserting “[t]he only purpose in trying the gang charges along with the underlying charges would be 5 to inflame the passions of the jury in hopes that they convict, not on the merits of the case but rather out of fear created by the gang evidence.” At a December 2014 6 motion hearing, the court tentatively denied the request and gave the parties an opportunity to respond. Both parties submitted and the tentative ruling became final. 7 After close of evidence, the court and counsel discussed jury instructions off the 8 record. Later, the court listed the instructions it intended to give, including CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity), and afforded 9 counsel the opportunity to object. Neither did so.

10 Prior to closing arguments, the court instructed the jury:

11 “[CALCRIM No. 1403:] You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the 12 intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements and special circumstance allegations charged or 13 that the defendant had a motive to commit the crimes charged.

14 “You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information 15 relied on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from 16 this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” 17 In his summation, the prosecutor reiterated his theory on defendant's motive: 18 “This idea of disrespect and respect. It sounds ridiculous to people who aren't 19 from this culture. But ... think about what value respect plays to people who are in gangs, to gang members, particularly to Varrio Bakers members and 20 particularly to [defendant]. [¶] ... [¶] 21 “... [T]his idea of respect and how it plays into a role with gang members is so important for gang members themselves personally and for the gang as a 22 whole. And when we talk about what [Rocha] did to [defendant], by going to his house the way he did, stealing that car and intentionally making a scene 23 for the surveillance cameras. Going to a gang member's house and doing that, it is so stupid. And [Rocha] should really know better. 24 “But that level of disrespect is something that [defendant], a member of the 25 Varrio Bakers for more than 15 years, is not going to let go unpunished. He's not going to let that go. Because he can't. That's part of what gang 26 membership is. That's what they thrive off of. You can't let some punk like ... Rocha come to your house and do that. And [defendant], as a Varrio 27 Baker, simply could not let that slide, and there were consequences. [¶] ... [¶] 28 27 1 “There had to be consequences.... Rocha was completely disrespecting [defendant], to use the language of [defendant], and the consequence 2 unfortunately fell the hardest on ... Ortiz.”

3 b. Analysis.

4 “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and 5 material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044.) Pursuant to section 1044, a trial 6 court possesses “[g]eneral authority to bifurcate trial issues” (People v. Calderon (1994) 9 Cal.4th 69, 74–75), including gang enhancement allegations (People v. 7 Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez)).

8 “In cases not involving the gang enhancement, ... evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. 9 [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation— 10 including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, 11 motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence 12 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. 13 [Citation.]” (Hernandez, supra, 33 Cal.4th at pp. 1049–1050.)

14 “This is not to say that a court should never bifurcate trial of the gang enhancement from trial of guilt.... [For instance,] [t]he predicate offenses offered to establish a 15 ‘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 16 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 17 little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt.” (Hernandez, supra, 33 Cal.4th at p. 1049.) 18 “[T]he trial court's discretion to deny bifurcation of a charged gang enhancement is 19 ... broader than its discretion to admit gang evidence when the gang enhancement is not charged.” (Hernandez, supra, 33 Cal.4th at p. 1050.) “In the context of severing 20 charged offenses, ... ‘additional factors favor joinder. Trial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which 21 may result if the charges were to be tried in two or more separate trials.’ [Citation.] Accordingly, when the evidence sought to be severed relates to a charged offense, 22 the ‘burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. 23 [Citations.] When the offenses are joined for trial the defendant's guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters 24 does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be 25 inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged 26 offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing 27 considerations are outweighed by a substantial danger of undue prejudice.’ [Citation.]” (Ibid.; see ibid. [“The analogy between bifurcation and severance is not 28 perfect.... But much of what we have said about severance is relevant....”].) Hence, 28 1 “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself ... a court may still deny 2 bifurcation.” (Ibid.)

3 “We review the trial court's denial of the motion to bifurcate for abuse of discretion, based on the record as it stood at the time of the ruling.” (People v. Franklin (2016) 4 248 Cal.App.4th 938, 952 (Franklin).) “Our review is guided by the familiar principle that ‘[a] court abuses its discretion when its rulings fall “outside the bounds 5 of reason.”’ [Citations.]” (Ibid.; see People v. Brown (2004) 33 Cal.4th 892, 901 [“‘“If right upon any theory of the law applicable to the case, [a ruling or decision] 6 must be sustained regardless of the considerations which may have moved the trial court to its conclusion.”’”].) “If the trial court's ruling was correct on the record 7 before it, the ruling is subject to reversal only upon a showing that ‘“joinder actually resulted in ‘gross unfairness' amounting to a denial of due process.”’ [Citation.]” 8 (Franklin, supra, at pp. 952–953.)

9 Here, Beagley's testimony was admissible to prove the prosecutor's theory that defendant committed the 7–Eleven shooting as retaliation for Rocha stealing the 10 Saturn from his home, an act of disrespect toward himself (a Varrio Baker member) and the Varrio Bakers as whole. “[G]ang evidence is ‘relevant and admissible when 11 the very reason for the underlying crime, that is the motive, is gang related.’ [Citation.] ‘“[B]ecause a motive is ordinarily the incentive for criminal behavior, its 12 probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.”’ [Citation.]” (Franklin, supra, 248 13 Cal.App.4th at p. 953.) [Fn.10] Furthermore, we find nothing extraordinarily prejudicial about Beagley's testimony, which was no more inflammatory than the 14 evidence related to the crimes charged in the instant case. As to whether “ ‘ “joinder actually resulted in ‘gross unfairness' amounting to a denial of due process” ’ ” 15 (Franklin, supra, at p. 953), we point out the jury did not find true the gang special circumstance and gang enhancement allegations, strongly indicating “the jury did 16 not accept the gang evidence ... uncritically” (People v. Williams (2009) 170 Cal.App.4th 587, 613). [Fn.11] 17 [Fn.10] Thus, we necessarily reject defendant's claim the court “erro 18 [neously] ... instruct[ed] that gang evidence could be considered on the issue of motive.” (Boldface & capitalization omitted.) 19 [Fn.11] Defendant counters with People v. Albarran (2007) 149 Cal.App.4th 20 214 (Albarran), in which Division Seven of the Second Appellate District concluded “certain extremely prejudicial gang evidence was not relevant to 21 ... charges” stemming from a residential shooting involving the accused (id. at pp. 217–218). The gang expert in Albarran, however, conceded he did not 22 know the reason for the shooting. (Id. at pp. 220, 227.)

23 Defendant insists the gang evidence was actually “a form of disposition evidence that is inadmissible to prove that [an accused] committed crimes in conformity with 24 his disposition.” (Italics omitted.) We note the court “properly instructed the jury that evidence of gang activity could be considered solely for the limited purpose of 25 deciding whether ... [defendant] had a motive to commit the charged offenses.” (Franklin, supra, 248 Cal.App.4th at p. 953; see ante, at pp. 36–37.) “We presume 26 that the jury followed these limiting instructions, and there is nothing in this record to rebut that presumption.” (Franklin, supra, at p. 953.) 27

28 Vasquez, 2018 WL 716845, at *16-19. 29 1 a. Legal Standard and Analysis

2 There is no clearly established Federal law which holds that joinder or consolidation of

3 charges or sentencing enhancements violate the Constitution. In United States v. Lane, 474 U.S.

4 438, 446 n. 8 (1986), the Supreme Court stated in a footnote that “[i]mproper joinder does not, in

5 itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional

6 violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right

7 to a fair trial.” However, in Young v. Pliler, the Ninth Circuit stated:

8 Lane considered only the effect of misjoinder under Federal Rule of Criminal Procedure 8, and expressly stated that no constitutional claim had been presented. 9 See Lane, 474 U.S. 438, 446 & n. 9, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Thus, Lane's broad statement-found in a footnote without citation to any legal authority- 10 that misjoinder could only rise to the level of a constitutional violation if it was so prejudicial as to violate due process, was probably dictum. Only Supreme Court 11 holdings are controlling when reviewing state court holdings under 28 U.S.C. § 2254; Court dicta and circuit court authority may not provide the basis for granting 12 habeas relief. Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). 13

14 Young v. Pliler, 273 Fed.Appx. 670, n. 1, 2008 WL 1757564 (9th Cir. 2008) (unpublished); see

15 also Collins v. Runnels, 603 F.3d 1127, 1132–33 (9th Cir. 2010).

16 In ascertaining what is “clearly established Federal law,” this Court must look to the

17 “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the

18 relevant state-court decision.” Williams, 592 U.S. at 412. “In other words, ‘clearly established

19 Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the

20 Supreme Court at the time the state court renders its decision.” Id. Given that there is no clearly 21 established Federal law in this instance, the Court cannot grant relief, since habeas relief is

22 triggered only when the state court adjudication runs afoul of clearly established federal law. See

23 Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (absent a Supreme Court decision that

24 squarely addresses the issue it “cannot be said, under AEDPA, there is ‘clearly established’

25 Supreme Court precedent…and so we must defer to the state court’s decision”).

26 Even assuming for the sake of argument that the Supreme Court's footnote could be 27 considered clearly established Federal law, no constitutional violation occurred in this case. The

28 evidence was clearly relevant to prove Petitioner’s motive, and the prejudice was not so great as 30 1 to deny Petitioner his right to a fair trial. Lane, 474 U.S. at 446, fn. 8. Furthermore, the jury was

2 instructed that it could consider the gang evidence solely for the limited purpose of determining

3 whether Petitioner had a motive to commit the offenses, and the jury is presumed to have

4 followed the instruction. Weeks v. Angelone, 528 U.S. 225, 234 (2000). For the foregoing

5 reasons, the claim should be rejected.

6 5. Admission of Evidence

7 Petitioner next claims he was denied due process by the admission of prejudicial video

8 recordings that served no purpose other than to show Petitioner’s evil character. He contends

9 there was no permissible inference to be drawn from the evidence, and it created a substantial

10 danger of inflaming the jury against him. The claim was raised on direct review, and it was

11 denied by the Fifth DCA as follows:

12 a. Background. 13 Defendant moved in limine to exclude “a recording seized from ... defendant's cell phone that purports to be a conversation between ... defendant and a female 14 companion” on the grounds of “improper character evidence, lack of foundation, hearsay, the Confrontation Clause of the United States and California Constitutions, 15 and [Evidence Code section] 352.” At the hearing on the motion, the court and the parties watched People's Exhibits Nos. 8–A and 9–A. Afterward, defense counsel 16 argued: 17 “Starting with [People's] Exhibit [No.] 8[–A], the main problem, I think, is we don't have ... a witness that's going to come in and testify who was present 18 during the recording of that video or has any knowledge of what that situation that's allegedly purported to be shown on the video actually is. 19 Therefore, all we're doing is we're showing the jury a video and asking them to, essentially, speculate as to what's behind the actions that are occurring, 20 who the individuals that are being talked about are, which I think would be inappropriate. 21 “And, additionally, I think under [Evidence Code section] 352, the issues 22 that are presented in that video are removed from the issues that are present in this case. And I think it would be overly prejudicial to show that video to 23 the jurors, have them develop some type of bad character idea of [defendant] based on speculation that he may have been involved in trying to get 24 someone else to steal things, and then attempting to punish them in some way when they failed to get the right things. I think that that would be the 25 equivalent of bad character evidence, which would not be admissible. 26 “And I also think under [Evidence Code section] 352, the probative value is far outweighed by any prejudicial effect of what's on that video. [¶] ... [¶] 27 “With respect to People's [Exhibit No.] 9–A, there are similar issues.... [¶] 28 First of all, without someone coming in to testify saying, ‘That's me on the 31 1 recording,’ I don't know that there's going to be sufficient foundation ... for anyone to say who either of those voices are, specifically the female's voice. 2 [¶] ... [W]ithout someone testifying as to who's on that recording and what's actually being discussed, what's the background there, we're asking the 3 jurors to speculate based on very limited information.

4 “... Under [Evidence Code section] 352, we're dealing with a situation that really doesn't have anything to do with the present case. I think that the 5 probative value, if any, is far outweighed by the prejudicial effect of showing a video like that to the jurors. [¶] The actual effect it's going to have is to 6 serve as bad character evidence.... [E]ven if there is some other probative value to it, the main effect is going to be the jurors are going to form an 7 opinion of [defendant] in terms of his character based on the conduct alleged to him in that video. And I think that would be inappropriate.” 8 The prosecutor responded: 9 “Your Honor, regarding People's [Exhibit No.] 8–A, ... the evidence is going 10 to show that that video is actually taken in the garage of a house on Zelda Way, a house where [defendant] lived for a substantial amount of time prior 11 to about late March, early April of 2014. [¶] That garage has a large ‘V’ spray painted in white and black on the garage floor. We have pictures of 12 that from prior searches that the People will seek to admit.

13 “The people in the video, you can hear [defendant's] voice in the beginning and then obviously at the end when the video transfers, you can see the 14 person holding the camera walks inside. And you can clearly see [defendant] ask the question, ‘Did you record it?’ 15 “To the extent that there needs to be witnesses to explain the circumstances, 16 it's pretty obvious who the people are. Melissa ... is the female who appears to be holding the camera. She's referenced by name, and her voice is also 17 pretty easy for anyone who's talked to her to recognize in the situation. [¶] The person who's being interrogated, ... is ... Sandhu. And the reason the 18 People know that is because when [defendant] was arrested on April 10th, he had ... Sandhu's identification on him. 19 “The video is from late March, just weeks before the shooting in this case. 20 And it is very clearly an issue where [defendant] wants a recording of this person being terrified. [Defendant] has apparently done something, hit him 21 with something. [¶] And the important part about that is that it's important to ... defendant to have this memorialized, to have it documented. And it's 22 something that he keeps. And so when he's arrested on April 10th, he's got a copy of this video on the phone in his possession. [¶] ... [I]t is clear that 23 Melissa, [defendant]'s wife, is recording it at his request and is doing so covertly. 24 “... [I]n People's [Exhibit No.] 9–A, it seems pretty clear that [defendant] is 25 the one who's making sure that this is recorded in a way that appears that the phone is being hidden so that the victim, ... Dunn, can't hear it. 26 “As far as the probative nature of this evidence, for People's [Exhibit No.] 27 8–A, there has been a series of cases that deal with gang cases. And the Court of Appeal[ ] has made it clear that they want something other than 28 generalized opinions of gang experts to support gang motive and the gang 32 1 enhancement. We certainly have a gang enhancement and special circumstance in this case. [¶] And here we have a scenario where we don't 2 need to rely simply upon the opini[on]s of an expert about the importance of respect, about the importance of fear that takes place in criminal street gangs, 3 in particular in this case, the Varrio Bakers. [¶] We have absolute clear evidence of the manner in which ... defendant uses his authority to control 4 people, to frighten them and to control them.

5 “... [B]oth of these videos are clear-cut examples of that. And the fact that ... defendant ... either appears to be recording it himself or directing others to 6 record it, suggests that he wants even evidence of this to be maintained.

7 “When we look at People's [Exhibit No.] 9–A, the way we know who these people are is by listening to their voices.... Moore will be able to testify that 8 this girl in the video is ... Dunn. He knows that. He's talked to her multiple times. He's talked to her while she's been crying. And we have a recording 9 of that as well. [¶] ... [Defendant]'s voice is pretty easy to spot. With People's [Exhibit No.] 8–A, we have a video of him talking. And then People's 10 [Exhibit No.] 9–A, you can clearly hear his voice.

11 “The issue with [People's Exhibit No.] 9–A, the relevance, the probative value is essential.... Count 9, the [section] 422 charge in this case, that's the 12 evidence that I've got, and that's it.... Dunn, I don't know where she is. She has an active warrant. She has not been cooperative in this investigation, to 13 the extent that we have video of her six minutes before the shooting of the murder, and appears to be in a car with [defendant].... [¶] ... [¶] 14 “The issue of whether this is being used to target [defendant]'s character, it's 15 not because it is essential for the gang evidence. [¶] ... [W]hat we have in this case is a scenario where the People's theory is that ... Rocha stole a car 16 directly from this house on Zelda that [defendant] lived at, had surveillance cameras. And ... Rocha made a show about it. And he's intentionally putting 17 it in the face of ... defendant that he is taking it from him. [¶] And that level of disrespect, while to anyone on the street, might prompt a call to the police 18 about a stolen car, for [defendant], a man who has his gang affiliation tattooed all over his body—on the back of his head, on his chest, on his 19 knees—who has dedicated so much of his life and has plastered this aspect of gang culture upon him, doing something like that to him is a level of 20 disrespect that he simply won't tolerate. 21 “And so we look at People's [Exhibit No.] 9–A, and we see this issue where ... Dunn is someone who's close to him, is doing something as trivial as not 22 stealing for him or not stealing very well for him. And the way that he goes after her for that to terrorize her is how he is exerting his influence and ... 23 those types of roles within the Varrio Bakers. [¶] He talks about there being consequences of not following the rules. He specifically uses the phrase, 24 ‘straight, utter disrespect.’ And he repeats it. That's how important it is to [defendant] when you talk about respect within the culture of the Varrio 25 Baker.

26 “And that's what the gang expert will rely upon when he talks about why it's such a big deal when ... Rocha shows up to [defendant]'s house and just takes 27 the car right from under him. And so that plays into what happens in the next couple weeks where there are multiple shootings toward ... Rocha when ... 28 Rocha is driving this car that is easily recognizable to ... defendant. 33 1 “And so when you put everything together, you can see the importance, the probative value of this type of evidence, clearly with People's Exhibit [No.] 2 9 [–A] because it goes directly to a charged count, but it also ties into the gang evidence and the motive for the murder charge in this case.” 3 The court ruled: 4 “I'm going to allow both of them with limiting instructions. I think to allow 5 it without a limiting instruction would be inappropriate. [¶] ... [¶]

6 “And the limiting instruction in regard to [People's Exhibit No.] 8–A would be, it can be considered as to motive as to the gang charges. And we'll say 7 that out more specifically.

8 “And then ... also as to motive pertaining, perhaps, to Count 9.

9 “[People's] Exhibit [No.] 9–A, same. It would be in regard to motive pertaining to the murder and attempted murder charges. And then also as to 10 Count 9 itself. And then as to the gang charges. [¶] ... [¶]

11 “Undue consumption of time is not an issue.

12 “And prejudicial versus probative has been considered. And it is more probative than prejudicial, in my view.” 13 Prior to closing arguments, the court issued CALCRIM No. 303 (Limited Purpose 14 Evidence In General):

15 “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” 16 The court also issued CALCRIM No. 1403, instructing the jury it “may consider 17 evidence of gang activity only for the limited purpose of deciding whether ... defendant had a motive to commit the crimes charged,” inter alia. (See ante, at pp. 18 36–37.)

19 In his summation, the prosecutor linked People's Exhibits Nos. 8–A and 9–A with his theory on defendant's motive for the 7–Eleven shooting: 20 “This idea of disrespect and respect. It sounds ridiculous to people who aren't 21 from this culture. But ... think about what value respect plays to people who are in gangs, to gang members, particularly to Varrio Bakers members and 22 particularly to [defendant].

23 “When you listen to that recording of [defendant] threatening ... Dunn and telling her she's going to stab herself. ‘You're gonna stab yourself.’ He's mad 24 at her. And the reason he's mad at her, you can figure out from these videos, is that [defendant] is running a little bit of a criminal enterprise where he's 25 controlling people. He's getting people to steal for him.... Sandhu, the guy in the garage, talks about how he was supposed to steal certain things from 26 Walgreens, but ... defendant's wife, Melissa, is upset at him because he didn't steal the right things. 27 “... Dunn, in that recording when she's being threatened, the reason that 28 [defendant] is so upset with her is because she's not even trying. She's not 34 1 even trying to steal. And it's very clear that part of her job for him is to steal things. And she's not doing it. Or at least not doing it enough. 2 “And it's not that she's not stealing enough that really bothers him.... He says 3 the real problem is that ... she can do it but she chooses not to. And by not doing ... what he tells her to do, it is ‘straight utter disrespect.’ And he repeats 4 it. Straight utter disrespect. And he talks about how important it is that he be respected because of the things that he does. He demands respect. Even from 5 her. He demands this level of respect.

6 “During the other video from the cell phone where we have Melissa ..., ... defendant's wife is talking about what's going on with ... Sandhu, who is 7 scared for his life because he's just been apparently slapped by ... defendant. And ... Sandhu clearly thinks that he's being held there for some reason. That 8 he's not really free to leave, despite Melissa saying that he is. He feels that he has to stay there.... You're free to leave, but [defendant] asked you to stay 9 here out of respect.

10 “And this idea of respect and how it plays into a role with gang members is so important for gang members themselves personally and for the gang as a 11 whole. And when we talk about what [Rocha] did to [defendant], by going to his house the way he did, stealing that car and intentionally making a scene 12 for the surveillance cameras. Going to a gang member's house and doing that, it is so stupid. And [Rocha] should really know better. 13 “But that level of disrespect is something that [defendant], a member of the 14 Varrio Bakers for more than 15 years, is not going to let go unpunished. He's not going to let that go. Because he can't. That's part of what gang 15 membership is. That's what they thrive off of. You can't let some punk like ... Rocha come to your house and do that. And [defendant], as a Varrio 16 Baker, simply could not let that slide, and there were consequences. [¶] ... [¶] 17 “There had to be consequences for what [Rocha] did. Much like there had to 18 be consequences for ... Dunn disrespecting [defendant] by not stealing. If I let you do this, then the next guy is gonna come along and he's gonna want 19 to do the same thing. There had to be consequences. You have to follow the rules. This is what he says to her. 20 “The same thing applies when ... Rocha does what he does. There had to be 21 consequences.... Rocha was completely disrespecting [defendant], to use the language of [defendant], and the consequence unfortunately fell the hardest 22 on ... Ortiz.”

23 b. Analysis.

24 At the outset, defendant concedes People's Exhibit No. 9–A was “relevant and necessary to prove” count 9 and contends the court should have severed that count. 25 Under section 954, “[a]n accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different 26 offenses of the same class of crimes or offenses, under separate counts ... provided, that the court in which a case is triable, in the interests of justice and for good cause 27 shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately ....” “‘Section 954, however, imposes no 28 sua sponte duty of severance on trial courts. That section ... requires the defendant 35 1 to make a showing of “good cause” in order to obtain severance, and [a] defendant's failure to request a severance [forfeits] the matter on appeal.’” (People v. Maury 2 (2003) 30 Cal.4th 342, 392.) Alternatively, under section 1004, subdivision 3, “[t]he defendant may demur to the accusatory pleading at any time prior to the entry of a 3 plea, when it appears upon the face thereof ... [¶] ... [¶] ... [t]hat more than one offense is charged, except as provided in [s]ection 954....” “By statute, if misjoinder 4 is evident on the face of the complaint and the defendant fails to challenge misjoinder by demurrer, the issue is forfeited.” (People v. Barros (2012) 209 5 Cal.App.4th 1581, 1596, fn. 20, citing § 1012; see People v. Kemp (1961) 55 Cal.2d 458, 474.) 6 In the instant case, “[h]ad [defendant] felt the trial ... should, in the interests of 7 justice, have been severed, it was incumbent upon him to demur or move for a severance.” (People v. Martin (1967) 250 Cal.App.2d 263, 268.) He did neither, 8 notwithstanding his attempts to frame his request to exclude People's Exhibit No. 9–A as “tantamount to a motion to sever Count 9” and “the functional equivalent of 9 a demurrer.” Thus, defendant forfeited the matter on the appeal.

10 Next, defendant argues the court erroneously admitted People's Exhibits Nos. 8–A and 9–A because they were irrelevant to prove a motive for the 7–Eleven shooting, 11 were unduly prejudicial, and constituted inadmissible character evidence. Even assuming, arguendo, the court should have excluded these recordings, by 12 constitutional mandate, “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of ... the improper admission or rejection of evidence, ... 13 unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of 14 justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the 15 evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the 16 error.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); accord, People v. Callahan (1999) 74 Cal.App.4th 356, 363.) 17 Here, it is not reasonably probable defendant would have obtained a more favorable 18 verdict. As noted, the totality of the circumstances indicated defendant was the gunman in the Honda Accord. (See ante, at pp. 44-45.) GPS data from defendant's 19 ankle monitor showed defendant fleeing on foot from 7–Eleven, “support[ing] an inference of consciousness of guilt and constitut[ing] an implied admission.” 20 (People v. Brooks (1966) 64 Cal.2d 130, 138.) Moreover, the record does not support the notion the shooting was justifiable. (See post, at pp. 61–62.) 21 “In the absence of a violation of federal rights, we evaluate whether ‘it is reasonably 22 probable that a result more favorable to [defendant] would have been reached in the absence of the error.’” (People v. Page (2008) 44 Cal.4th 1, 42, quoting Watson, 23 supra, 46 Cal.2d at p. 836.) Defendant maintains, however, the admission of People's Exhibits Nos. 8–A and 9–A violated his federal constitutional rights to due 24 process. “[T]he admission of evidence in violation of state law may also violate due process, but only if the error rendered the defendant's trial fundamentally unfair.” 25 (People v. Merriman (2014) 60 Cal.4th 1, 70.) “‘[T]he evidence must “be of such quality as necessarily prevents a fair trial.”’” (People v. Hunt (2011) 196 26 Cal.App.4th 811, 817.) Based on the record before us, we cannot reach that conclusion. Hence, “[a]bsent fundamental unfairness, state law error in admitting 27 evidence is subject to the traditional Watson test....” (People v. Partida (2005) 37 Cal.4th 428, 439.) 28 36 1 Vasquez, 2018 WL 716845, at *21-26.

2 a. Legal Standard and Analysis

3 This claim is not cognizable on federal habeas review because the admissibility of

4 evidence is a matter of state law. Estelle, 502 U.S. at 67-68 (state evidentiary ruling cannot

5 provide ground for federal habeas relief unless the admission of evidence violated due process).

6 In addition, Respondent correctly argues that Petitioner cannot show that the trial court’s

7 admission of identification evidence was contrary to or an unreasonable application of Supreme

8 Court precedent pursuant to 28 U.S.C. § 2254(d), since there is no Supreme Court precedent

9 governing a court’s discretionary decision to admit evidence as a violation of due process. In

10 Holley v. Yarborough, the Ninth Circuit stated:

11 Under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not 12 forbidden by “clearly established Federal law,” as laid out by the Supreme Court. 28 U.S.C. § 2254(d). In cases where the Supreme Court has not adequately 13 addressed a claim, this court cannot use its own precedent to find a state court ruling unreasonable. Musladin, 549 U.S. at 77, 127 S.Ct. 649. 14 The Supreme Court has made very few rulings regarding the admission of evidence 15 as a violation of due process. Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, 16 see Williams, 529 U.S. at 375, 120 S.Ct. 1495, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process 17 violation sufficient to warrant issuance of the writ. Absent such “clearly established Federal law,” we cannot conclude that the state court's ruling was an “unreasonable 18 application.” Musladin, 549 U.S. at 77, 127 S.Ct. 649. Under the strict standards of AEDPA, we are therefore without power to issue the writ . . . . 19

20 Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see Moses v. Payne, 555 F.3d 742, 21 760 (9th Cir. 2008) (holding that trial court did not abuse its discretion in excluding expert

22 testimony “[b]ecause the Supreme Court’s precedents do not establish a principle for evaluating

23 discretionary decisions to exclude the kind of evidence at issue here”). Since there is no clearly

24 established Supreme Court precedent governing a trial court’s discretionary decision to admit

25 evidence as a violation of due process, habeas relief is foreclosed. Id.

26 Even if the Court were to consider the claim, Petitioner would not be entitled to relief. 27 The state court reasonably determined that the video recordings were relevant to the issue of

28 motive, and the admission of this evidence did not render the trial fundamentally unfair. 37 1 Moreover, the evidence against Petitioner was strong. Petitioner fails to show that the trial court

2 committed error, let alone constitutional error, and he fails to show any prejudice. The claim

3 should be rejected.

4 6. Prosecutorial Misconduct

5 Petitioner claims the prosecutor committed misconduct by arguing facts not in evidence in

6 order to vouch for the strength of the prosecution’s case. Petitioner raised this claim on direct

7 review. In the last reasoned decision, the appellate court rejected the claim as follows:

8 a. Background. 9 In his summation, defense counsel characterized gang evidence as a diversionary tactic: 10 “The point of the gang evidence is this. The point of the gang evidence is to 11 put Officer Beagley up here on the stand with a bag of mud and he sits here and just chucks mud at [defendant] for like an hour, however long he was up 12 there. Let's talk about his past. Let's talk about his tattoos. Let's imagine what things in his house could stand for. Let's dirty him up as much as we can. 13 “Why? Why are we doing that? It's to scare you into ignoring the fact that 14 they haven't proved these charges. It's to distract you from the fact that there are holes all over this case. The hope is that you hear this gang evidence and 15 you think [defendant] must be a horrible person.... 16 “Don't be scared. Don't let that evidence get to you because that gang evidence is not evidence of these charges. It has nothing to do with these 17 charges. The only reason it's here is to scare you into ignoring the holes in this case, to distract you from the fact that the prosecution's theory doesn't 18 match up with the facts in this case, doesn't match up with the science that they presented....” 19 In his rebuttal, the prosecutor responded to defense counsel's allegation: 20 “There's one suggestion made by [defense counsel] that I want to address in 21 the beginning because I'm a district attorney, a deputy district attorney, and I work in the Gang Unit and I deal with gang crimes a lot. And [defense 22 counsel] suggests that the purpose of the gang evidence was to make ... defendant look bad. And that is absolutely not true. 23 “The truth is that ... defendant is a member of a criminal street gang, the 24 Varrio Bakers, and it is a gang that is terrorizing this community.... [D]efendant is charged with gang crimes and those gang crimes come from 25 the Penal Code. All those numbers that are on the verdict form, ... [section] 186.22, [are] basically the gang statute. And when the [L]egislature got 26 together and decided we need to do something about criminal street gangs, they actually put down in the law why they were doing it. 27 “In [section] 186.21, the [L]egislature writes, ‘The [L]egislature, however, 28 further finds that the State of California is in a state of crisis'....” 38 1 Before the prosecutor could complete the sentence, defense counsel objected on the 2 basis of “facts not in evidence.”

3 The court called counsel to sidebar. The following exchange transpired outside the presence of the jury: 4 “[DEFENSE COUNSEL]: It's my understanding he's going to start reading 5 the thoughts that the [L]egislature had when enacting the gang legislation, which I don't think there's been any evidence of. It would be hearsay at this 6 point as well. [¶] ... [¶]

7 “[PROSECUTOR]: The Court can take judicial notice of any law and statute based upon the implications raised in defense closing argument. [¶] I think 8 it's appropriate, if nothing else, for the People to have the opportunity to read the actual legislative findings in the [Penal] Code specific to the charges that 9 apply in the case.

10 “THE COURT: The legislative findings aren't the law.

11 “[PROSECUTOR]: The legislative findings are the explanation of why the evidence is important and why it is not, as was suggested, merely to dirty ... 12 defendant.

13 “I'm not going to get up there and say that I personally feel one way or the other, but the law is what the law is, and this is the reason for the law. It's 14 the most neutral way of conveying to the jury that [defense counsel]'s argument is unfounded. 15 “THE COURT: What portion were you reading?... 16 “[PROSECUTOR]: [Section 186.]21. I began with the second paragraph. 17 “THE COURT: [Section] 186.21. Findings and declarations. [¶] You can 18 read the first paragraph only.

19 “[PROSECUTOR]: Thank you.”

20 The prosecutor proceeded with his response: 21 “The [L]egislature declared that, ‘The [L]egislature hereby finds and declares that it is the right of every person, regardless of race, color, creed, 22 religion, national origin, gender, gender identity, gender expression, age, sexual orientation, or handicap, to be secure and protected from fear, 23 intimidation, and physical harm caused by the activity of violent groups and individuals.’ 24 “And as a result, we got legislation that dealt specifically with criminal street 25 gangs like the Varrio Bakers who do things in our community like shootings, like murders, like robberies, carjackings, the types of crimes that Officer 26 Beagley told us only a few examples of. And that is what this group does. 27 “And so when we talk about gangs and the need to prosecute gang crimes and members of those groups who are committing these crimes, it cuts to 28 kind of the core of what I do. It's not about making ... defendant look bad or 39 1 look dirty; it's about showing you what ... defendant's values are and what this group is engaged in.” 2 b. Analysis. 3 Defendant contends the prosecutor “vouch[ed] for the credibility of the gang 4 expert and the prosecutor's gang theory of the case.” (Boldface & capitalization omitted.) “To preserve a claim of prosecutorial misconduct during argument, [e.g., 5 vouching for witness credibility,] a defendant must contemporaneously object and seek a jury admonition.” (People v. Bonilla (2007) 41 Cal.4th 313, 336.) “As a 6 general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an 7 assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841, italics added.) In 8 the instant case, defendant objected on the basis of “facts not in evidence,” which is not the same as improper vouching. (See People v. Linton (2013) 56 Cal.4th 1146, 9 1206–1209.) Consequently, he forfeited his claim on appeal. [Fn.14]

10 [Fn.14] In any event, even if defendant preserved the vouching claim, it is without merit. The prosecutor “did not place the prestige of the government 11 behind [Beagley] through personal assurances of veracity, or suggest that information not presented to the jury supported [Beagley's] testimony.” 12 (People v. Williams (2013) 56 Cal.4th 165, 193, overruled in part by People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9.) Instead, his remarks addressed 13 defense counsel's assertion that gang evidence has no purpose other than mudslinging. 14 Vasquez, 2018 WL 716845, at *35-36. 15 a. Procedural Default 16 The state court found that Petitioner had forfeited his claim by failing to object to the 17 prosecutor for improper vouching. Respondent argues that Petitioner’s claim is thus procedurally 18 defaulted. The Court agrees. 19 A federal court will not review a claim of federal constitutional error raised by a state 20 habeas petitioner if the state court determination of the same issue “rests on a state law ground 21 that is independent of the federal question and adequate to support the judgment.” Coleman v. 22 Thompson, 501 U.S. 722, 729 (1991). This rule also applies when the state court's determination 23 is based on the petitioner's failure to comply with procedural requirements, so long as the 24 procedural rule is an adequate and independent basis for the denial of relief. Id. at 730. For the 25 bar to be “adequate,” it must be “clear, consistently applied, and well-established at the time of 26 the [ ] purported default.” Fields v. Calderon, 125 F.3d 757, 762 (9th Cir. 1997). For the bar to 27 be “independent,” it must not be “interwoven with the federal law.” Michigan v. Long, 463 U.S. 28 40 1 1032, 1040-41 (1983). If an issue is procedurally defaulted, a federal court may not consider it

2 unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the

3 alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

4 fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

5 The Ninth Circuit has repeatedly held that California's contemporaneous objection

6 doctrine is clear, well-established, has been consistently applied, and is an adequate and

7 independent state procedural rule. Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002);

8 Vansickel v. White, 166 F.3d 953 (9th Cir. 1999). The Ninth Circuit has held that the

9 contemporaneous objection rule also bars a claim of prosecutorial misconduct. Jackson v.

10 Giurbino, 364 F.3d 1002, 1006-07 (9th Cir. 2004); Rich v. Calderon, 187 F.3d 1064, 1070 (9th

11 Cir. 1999). Thus, by failing to object to the prosecutor’s alleged improper vouching, Petitioner

12 waived his claim in state court and is procedurally barred from raising it here. In any case, as

13 discussed below, the claim is without merit.

14 b. Legal Standard and Analysis

15 A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct “so infected

16 the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

17 DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial

18 misconduct must be “of sufficient significance to result in the denial of the defendant’s right to a

19 fair trial.” Greer v. Miller, 485 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S.

20 667 (1985)). Any claim of prosecutorial misconduct must be reviewed within the context of the 21 entire trial. Id. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1994). The

22 Court must keep in mind that “[t]he touchstone of due process analysis in cases of alleged

23 prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor” and “the

24 aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance

25 of an unfair trial to the accused.” Smith v. Phillips, 455 U.S. 209, 219 (1982). If prosecutorial

26 misconduct is established, and it was constitutional error, the error must be evaluated pursuant to 27 the harmless error test set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Thompson,

28 74 F.3d at 1577 (Only if constitutional error is established “would we have to decide whether the 41 1 constitutional error was harmless.”).

2 The state court reasonably determined that the prosecutor’s remarks were not improper,

3 much less misconduct. The prosecutor did not vouch for the expert witness, nor did he place the

4 prestige of the government behind the witness. Rather, the remarks were made in rebuttal to

5 defense counsel’s argument that the expert witness testimony was presented solely for the

6 purpose of mudslinging. The prosecutor clarified that this was not the case, and that the purpose

7 of the expert’s testimony was to show motive. The state court determination was not

8 unreasonable, and the claim should be rejected.

9 7. Exclusion of Admissible Evidence

10 Next, Petitioner claims that the trial court deprived him of his due process right to present

11 a complete defense when it excluded the admissible hearsay of Shelly McKeen. Petitioner argues

12 that the evidence had significant probative value for the defense that outweighed any prejudice to

13 the prosecution. Petitioner raised this claim on direct review, and the Fifth DCA denied the claim

14 as follows:

15 a. Background. 16 Defendant moved in limine to admit, pursuant to Evidence Code section 1370, [Fn.12] a phone conversation between McKeen and Moore recorded on April 14, 17 2014. The prosecutor opposed the motion. At the hearing on the motion, the court and the parties listened to the recording, which was marked and received into 18 evidence as People's Exhibit No. 5–A. They heard the following exchange: 19 “Male: Hi, is Shelly there? 20 “Female: Who's this? 21 “Male: Detective Moore, police department in Bakersfield. 22 “Female: Oh, what's up? 23 “Male: How are you? 24 “Female: I'm fine. How are you? 25 “Male: Good.... [¶] ... [¶] ... Um, do you know why I'm calling? 26 “Female: No. 27 “Male: Okay, um, your name came up in, uh, in an investigation I'm workin', and I wanted to know if I could, um, talk to you— 28 42 1 “Female: Oh, wow.

2 “Male: And I don't think you're in any trouble I just need to get some, some clarification from you. 3 “Female: Okay, what's it, what's it dealing with? 4 “Male: Um, what's your last name Shelly? 5 “Female: McKeen. [¶] ... [¶] 6 “Male: Okay. Um, I understand that you know a guy named Aaron. 7 “Female: Yeah. 8 “Male: That got shot. 9 “Female: Yeah, the one's that's been trying to shoot me for the last week, 10 yeah.

11 “Male: He's trying to what?

12 “Female: Shoot me.

13 “Male: Did he say he was gonna shoot you or—

14 “Female: Numerous times, numerous times. Yeah, numerous times. Yeah, I mean, he's, um, caught me off guard (unintelligible).... [¶] ... [¶] ... [B]ecause 15 like every time, every time he catches me alone he pulls a gun on me, and he forces me to go with him[, which I do because] I'm scared, okay, and then 16 he does whatever he wants. You take it from there.

17 “Male: When was the last time you seen—

18 “Female: And so I, and so I run from him.

19 “Male: The Aaron guy?

20 “Female: Yeah. 21 “Male: Okay. When's the, um, last time you saw him?

22 “Female: Um, (unintelligible), uh, the last time I ran into him was at Del Taco, um two days ago. 23 “Male: Okay, what's he upset about? [¶] ... [¶] 24 “Female: Um, okay, because, okay, this is what happened. I'm gonna be 25 straight up and honest with you, you know what I mean. All the things you— I say to you may not like it, but that's okay, you know what I mean? [¶] ... 26 [¶] ... Uh, okay, I went to, um, hung around with Aaron for a couple of days in his black Honda Accord, okay. [¶] ... [¶] ... Well, I had to go see my, my 27 daughter, um, it wasn't very long ago, anyways I told him I had to go see my daughter. [¶] ... [¶] ... Okay, and he's like, well, why don't you just take the 28 car, you know, uh, and he offered it to me. I said, okay, that's cool, you know 43 1 what I mean? So, and then I, I started (unintelligible) the rest of the day, you know what I mean, and, um, I asked him—I was like seven hours late 2 bringing the car back.

3 “Male: Yeah.

4 “Female: Seven hours, right, so I was like, fuck, he's gonna be so mad he's gonna be pissed you know what I mean. [¶] ... [¶] ... So, why don't I just 5 [say], hey, you know what, I'm getting pulled over so I didn't know this car is stolen, right, so I text him. I said, hey, is this car stolen fool ‘cause I'm 6 getting pulled over. [¶] ... [¶] ... Okay, and he said, um, why, why what's going on? I said, ‘cause I'm getting pulled over is the car stolen? He says 7 yes, and I said, oh, you know what I mean, I wasn't pulled over, but I thought to myself are you sure it is, fool? [¶] ... [¶] ... You let me drive around in this 8 car all day with my daughter, and there's—this is a stolen car and there's guns in here, you know what I mean, that I didn't know about was in there, you 9 know what I'm saying like so I was like, you know what, consider yourself caught fool.... 10 “Male: Can I, can I ask you a question? 11 “Female: Huh? 12 “Male: Do have any idea where this car is now? 13 “Female: Um, I haven't seen that car since, um, I sold it to, uh, Tony. 14 “Male: Okay. How much did you sell it to Tony for? 15 “Female: Three-hundred. 16 “Male: Is that like a deal? 17 “Female: See Aaron, Aaron is, uh, serious about this car, and I told him, um, 18 you know what I mean, um, when he [got] me at gunpoint the first time—

19 “Male: Yeah.

20 “Female: I told him I will take him where I sold the car. 21 “Male: Yeah.

22 “Female: And that's how Tony Vasquez got involved because I, um, he went out to Tony's house to get his car back, and, uh, that's why I ran from him. 23 “Male: Okay. 24 “Female: So, ever since then, they've been, they've been at it over the car. 25 “Male: Right. 26 “Female: ‘Cause Tony's not gonna give that car back, and (unintelligible) 27 you know what I mean.

28 “Male: Yeah. Um— 44 1 “Female: I've been shot at twice.

2 “Male: Who's shooting at you?

3 “Female: It's Aaron and he's busted my—the side of my face with a [ ] [knife,] you know what I mean. 4 “Male: Yeah. 5 “Female: He—all—Aaron—it's—he's, he's, he's ignorant that's his problem. 6 He's ignorant.

7 “Male: Yeah.

8 “Female: Yeah, okay, and I know that when he finds me it's over, you know what I mean. [¶] ... [¶] ... When he sees me it's over. 9 “Male: Well, that's why I wanna—can I get involved and talk to you a little 10 bit and get this thing figured out, um, did, did you take any pictures or have any information on this Honda at all like a license plate or a vehicle VIN or 11 anything where I can figure ... [¶] ... [¶] ... out where it came from?

12 “Female: It doesn't have a VIN on it. Uh, I can get a hold of [unintelligible] was my home girl Nichole on it. She's stole it from somebody, okay. It was 13 her Honda originally, okay, then Aaron beat [the] shit out of her and stole it from her, and then I took it from Aaron [since he lied to me]. [¶] ... [¶] ... 14 And then I went and sold it to Tony. [¶] ... [¶]

15 “Male: ... Hey, were you there when, uh, when Aaron, when Aaron took that Saturn? ... [¶] ... [¶] 16 “Female: No. I wasn't there, but I had drove that Saturn, um, and whenever 17 Aaron had caught up with me the second time ... [¶] ... [¶] ... and threw me in the car. [¶] ... [¶] ... Um, he made me drive that car while he went, went 18 and got his Impala. [¶] ... [¶]

19 “Male: Did, did you ever see, did you ever see Tony driving the Saturn?

20 “Female: No. I never saw Tony drive it. 21 “Male: Did you see Tony driving the Honda?

22 “Female: Um, no, Tony, Tony never drove it, uh, his old lady did.

23 “Male: Which one?

24 “Female: Uh, Melissa. That's funny, which one. His wife Melissa.

25 “Male: When did you see her driving the Honda?

26 “Female: Uh, the night that I gave him, uh, Tony gave me three-hundred dollars for [it].” 27 [Fn.12] Evidence Code section 1370, subdivision (a), reads: “Evidence of a 28 statement by a declarant is not made inadmissible by the hearsay rule if all 45 1 of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the 2 declarant. [¶] (2) The declarant is unavailable as a witness pursuant to [Evidence Code] [s]ection 240. [¶] (3) The statement was made at or near 3 the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or 4 proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] 5 (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.” 6 Mattson testified she searched for McKeen, but to no avail. Based on McKeen's 7 Facebook posts, Mattson surmised McKeen had moved out of the state.

8 Moore testified he phoned McKeen on April 14, 2014, after he “received information that she may have some background information regarding the case.” 9 As to McKeen's claims of Rocha “shooting at her,” “brandishing a gun,” and “hitting her,” Moore could not find “any information[, e.g., police reports,] that 10 corroborate[d] [her] account of the things that happened to her.”

11 When asked by the court what he “want[ed] to introduce in regard to [the] recording,” defense counsel replied: 12 “Specifically what I'm interested in are the statements from ... McKeen 13 regarding ... Rocha threatening her with—shooting at her, threatening her with a firearm.... [¶] As well as the statement regarding him cutting her face 14 with a knife.”

15 The court commented:

16 “First, it does appear to me that there has been diligent efforts made, that the definition of unavailable witness under [s]ection 240 of the Evidence Code 17 ... has been met.

18 “That takes us, then, to [Evidence Code section] 1370.... [¶] ... [T]he definition does appear to have been met and the requirement's met under 19 [Evidence Code section] 1370 based on ... McKeen's statement as to the timing of the events, what the threats were and actions taken. [¶] ... [¶] 20 “At this point, my tentative thought is to allow the statement to be played in 21 its entirety to the jury should either side wish to do so.”

22 After listening to the parties' arguments concerning whether McKeen's out-of-court statements were admissible under Evidence Code section 1370, the court asked 23 defense counsel to explain the relevance of the statements. Defense counsel answered: 24 “Rocha's character is going to be in evidence, his character for violence, his 25 character for using firearms. I think the evidence, as it comes out—obviously I can't say exactly what it will be—but I think given the fact that we know 26 that ... Rocha himself had a gun that night, and after the shooting he attempted to hide that gun, if that gun hadn't been used for some illegal 27 purpose or for some nefarious purpose, there would be no reason to hide the gun. 28 46 1 “I think the evidence is going to come out that ... Rocha may have either attempted to use that gun or used that gun that night prompting whatever 2 shooting may have occurred afterwards. And I think this would be relevant to his character for violence, his character for using guns, certainly tying him 3 to that gun. And I think it would be relevant for that purpose.”

4 Thereafter, the court tentatively ruled:

5 “Everyone keep in mind that under [Evidence Code section] 1370, [Evidence Code section] 352 is still the analysis, the ultimate analysis that the Court 6 will perform after going through the first portions. [¶] ... [¶] In regard to ... McKeen, under a[n Evidence Code section] 352 analysis, I'm not referencing 7 undue consumption of time, but whether it's more prejudicial than probative. Under that analysis, I'm not allowing it. [¶] ... [¶] ... [T]hat's my tentative 8 ruling under the [Evidence Code section] 352 analysis. And if we need to revisit it, we can.” 9 Toward the end of the prosecution's case-in-chief, defendant asked the court to admit 10 McKeen's out-of-court statements for the purpose of impeachment. The court rejected the request: 11 “The ruling is the same. Nothing has substantially changed in regard to my 12 decision-making or my review of the issues or analysis of the issues under any of the concerns, whether it be ... Evidence Code [s]ection 352, et cetera.” 13 b. Analysis. 14 Hearsay statements that are admissible under an exception to the hearsay rule “are 15 nonetheless subject to Evidence Code section 352 under which ‘the trial court is required to weigh the evidence's probative value against the dangers of prejudice, 16 confusion, and undue time consumption.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584.) “A trial court's discretionary ruling under this statute ‘“must not 17 be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest 18 miscarriage of justice. [Citations.]”’ [Citation.]” (People v. Williams (2008) 43 Cal.4th 584, 634–635.) In addition, “when ruling on a[n] [Evidence Code] section 19 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record 20 demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.) 21 At trial, defense counsel argued McKeen's out-of-court statements were relevant to 22 show Rocha provoked the shooting at 7–Eleven. On appeal, defendant alleges Rocha “wait[ed] for [him] to arrive” at 7–Eleven, Rocha “attempted to use [the] firearm to 23 forcibly retake the Honda (an attempted carjacking) when it arrived at the 7– Eleven,” and “[Rocha] and Ortiz were shot in self defense.” The theory of Rocha 24 being the aggressor, however, found scant support in the record. As noted, the totality of the circumstances indicated defendant was the gunman in the Honda 25 Accord. (See ante, at pp. 44–45.) While the evidence showed Rocha had access to an H & R model 922 .22–caliber nine-shot revolver during and after the shooting, it 26 also showed (1) only three bullets were fired, two of which penetrated Rocha's thigh and Ortiz's temple, respectively; (2) three corresponding Winchester nine- 27 millimeter Luger shell casings were recovered from the crime scene; and (3) none of the shell casings were expelled from the revolver. (Cf. People v. Viramontes 28 (2001) 93 Cal.App.4th 1256, 1263 [forensic evidence determined at least one shot 47 1 was fired from one gun and at least seven shots fired from another gun].) GPS data from defendant's ankle monitor established defendant arrived at 7–Eleven from 2 ampm at precisely 12:16 a.m. 7–Eleven's surveillance footage demonstrated the gunfire commenced at 12:16 a.m. and, a few seconds later, Rodrigo and his 3 girlfriend entered the store and phoned 911. Rodrigo, who had been in the front of the store, heard the gunshots and saw a black car leaving the parking lot. He did not 4 witness anything else that would have corroborated defendant's claim he shot Rocha (and Ortiz, who was sitting in the driver's seat of the Saturn) in self-defense. (Cf. 5 ibid. [numerous witnesses described a pause between the first shot and subsequent shots; one witness testified “it sounded as if two different guns were firing from 6 different areas”].) Because the claim was not borne out by the evidence, the court properly excluded evidence of Rocha's bad character as more prejudicial than 7 probative. (See People v. Hoyos (2007) 41 Cal.4th 872, 913 [“[E]ven if the ... victim were the most violent person in the world, that fact would not be relevant if the 8 evidence made it clear that the victim was taken by surprise and shot....”], overruled on other grounds by People v. Black (2014) 58 Cal.4th 912, 919–920.) 9

10 Vasquez, 2018 WL 716845, at *26-30.

11 a. Legal Standard and Analysis

12 This claim is not cognizable on federal habeas review because, as previously stated, the

13 admissibility of evidence is a matter of state law. Estelle, 502 U.S. at 67-68 (state evidentiary

14 ruling cannot provide ground for federal habeas relief unless the admission of evidence violated

15 due process). There is no Supreme Court authority that squarely addresses whether a

16 discretionary decision to exclude evidence violates a defendant’s constitutional right to present

17 relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009); see also Brown v.

18 Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“Between the issuance of Moses and the present, the

19 Supreme Court has not decided any case either ‘squarely address[ing]’ the discretionary exclusion

20 of evidence and the right to present a complete defense or ‘establish[ing] a controlling legal

21 standard’ for evaluating such conclusions. Brown, therefore, cannot – as the petitioner in Moses

22 could not – show that the state appellate court’s ruling was either contrary to or an unreasonable

23 application of clearly established Supreme Court precedent.”). For this reason, Petitioner cannot

24 show that the exclusion of McKeen’s statements violated his constitutional rights, and habeas

25 relief is unauthorized. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008).

26 Moreover, the state court rejection of the claim was entirely reasonable. Petitioner sought

27 to introduce McKeen’s statements to show Rocha’s propensity for violence to support his

28 allegation that he shot in self-defense. As previously discussed, however, there was little if any 48 1 evidence to support this theory. Eyewitness testimony, video surveillance recordings, ballistics

2 evidence, and GPS monitoring data showed that Petitioner arrived at 7-Eleven at 12:16 a.m., that

3 gunfire commenced seconds later from a single gun, and Petitioner then fled the scene on foot.

4 McKeen’s testimony would not have altered the outcome. The claim should be rejected.

5 8. Sentencing Error

6 Petitioner contends he received an elevated sentence based on facts not found by the jury

7 in violation of his due process rights. Petitioner presented this claim on direct appeal, and it was

8 denied by the Fifth DCA in a reasoned decision as follows:

9 a. Background. 10 Defendant was charged with the murder of Ortiz on count 1. The information alleged this crime “was done by one of the following means, which is within the meaning 11 of ... section 189. A) Destructive device or explosive [.] B) Weapon of mass destruction[.] C) Armor penetrating ammunition[.] D) Poison[.] E) Lying in wait[.] 12 F) Torture[.] G) Willful, deliberate, and premeditated killing[.] H) Discharge of a firearm from a motor vehicle, intentionally at another person outside the vehicle, 13 with the intent to inflict death[.] I) Perpetration of, or attempt to perpetrate[,] arson, rape, carjacking, robbery, burglary, mayhem, or kidnapping.” (Capitalization 14 omitted.) The information further alleged the murder “was intentional and perpetrated by means of discharging a firearm from a motor vehicle at another 15 person or persons with the intent to inflict death, in violation of ... section 190.2[, subdivision]( [a] )(21).” (Capitalization omitted.) 16 Defendant was also charged with the attempted murder of Rocha on count 2. The 17 information alleged this crime “was done by one of the following means, which is within the meaning of ... section 189. A) Destructive device or explosive [.] B) 18 Weapon of mass destruction[.] C) Armor penetrating ammunition[.] D) Poison[.] E) Lying in wait[.] F) Torture[.] G) Willful, deliberate, and premeditated killing[.] H) 19 Discharge of a firearm from a motor vehicle, intentionally at another person outside the vehicle, with the intent to inflict death[.] I) Perpetration of, or attempt to 20 perpetrate[,] arson, rape, carjacking, robbery, burglary, mayhem, or kidnapping.” (Capitalization omitted.) 21 Prior to closing arguments, the court instructed the jury: 22 “[CALCRIM No. 520 (First or Second Degree Murder With Malice 23 Aforethought):] [D]efendant is charged in Count 1 with murder, in violation of ... [s]ection 187. 24 “To prove that ... defendant is guilty of this crime, the People must prove 25 that: [¶] One[,] ... defendant committed an act that caused the death of another person. [¶] And; two, when ... defendant acted, he had a state of mind 26 called malice aforethought. [¶] ... [¶] 27 “[CALCRIM No. 521 (First Degree Murder):] [D]efendant is guilty of first- degree murder if the People have proved that he murdered by shooting a 28 firearm from a motor vehicle. [¶] ... [D]efendant committed this kind of 49 1 murder if he shot a firearm from a vehicle; he intentionally shot at a person who was outside ... defendant's vehicle but was occupied; and the third 2 requirement is that he intended to kill that person. [¶] ... [¶]

3 “[CALCRIM No. 600 (Attempted Murder):] [D]efendant is charged in Count [ ] 2 ... with attempted murder. To prove that ... defendant is guilty of 4 attempted murder, the People must prove that: [¶] One; ... defendant took at least one direct but ineffective step toward killing another person. [¶] And, 5 two; ... defendant intended to kill that person. [¶] ... [¶]

6 “[CALCRIM No. 601 (Attempted Murder: Deliberation and Premeditation):] If you find ... defendant guilty of attempted murder under 7 Count[ ] 2 ..., you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with 8 deliberation and premeditation.

9 “... [D]efendant acted willfully if he intended to kill when he acted. [¶] ... [D]efendant deliberated if he carefully weighed the considerations for and 10 against his choice and, knowing the consequences, decided to kill. [¶] ... [D]efendant premeditated if he decided to kill before acting. [¶] ... [¶] 11 “A decision to kill made rashly, impulsively, or without careful 12 consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be 13 reached quickly. The test is the extent of the reflection, not the length of time. [¶] ... [¶] 14 “[CALCRIM No. 700 (Special Circumstances: Introduction):] If you find ... 15 defendant guilty of first-degree murder, you must also decide if the People have proved that the special circumstance is true. [¶] ... [¶] 16 “[CALCRIM No. 735 (Special Circumstances: Discharge From Vehicle):] 17 [D]efendant is charged with [the] special circumstance of committing murder while shooting a firearm from a motor vehicle, in violation of ... 18 [s]ection 190.2[, subdivision](a)(21).

19 “To prove that this special circumstance is true, the People must prove that ... defendant shot a firearm from a motor vehicle killing ... Ortiz; ... defendant 20 shot at a person who was outside the vehicle occupied by ... defendant; and, three, at the time of the shooting, ... defendant intended to kill.” 21 Following deliberations, the jury rendered its verdict, which was published by the 22 clerk:

23 “First count. We, the jury, impaneled to try the above-entitled cause, find ... defendant ... guilty of felony, to wit: [m]urder of ... Ortiz, ... in violation of 24 [s]ection 187[, subdivision](a) ... as alleged in the first count of the Information, and do hereby fix the degree as murder in the first degree.... 25 “We, the jury, impaneled to try the above-entitled cause, find it to be true as 26 to [defendant] that the crime was done by one of the following means, which is within the meaning of ... [s]ection 189[:] (a) destructive device or 27 explosive; (b) weapon of mass destruction; (c) armor-penetrating ammunition; (d) poison; (e) lying in wait; (f) torture; (g) willful, deliberate 28 and premeditated killing; (h) discharge of a firearm from a motor vehicle 50 1 intentionally at another person outside the vehicle with the intent to inflict death; (i) perpetration of or attempt to perpetrate arson, rape, carjacking, 2 robbery, burglary, mayhem, or kidnapping as alleged in the Information. [¶] ... [¶] 3 “We, the jury, impaneled to try the above-entitled cause, find it to be true as 4 to [defendant] that the murder of ... Ortiz ... was intentional and perpetrated by means of discharging a firearm from a motor vehicle at another person or 5 persons with the intent to inflict death, in violation of ... [s]ection 190.2[, subdivision](a)(21) as alleged in the Information.... [¶] ... [¶] 6 “... Second count. We, the jury, impaneled to try the above-entitled cause, 7 find ... defendant ... guilty of felony, to wit: [a]ttempted murder of ... Rocha, in violation of [s]ection[s] 664[ and]187[, subdivision](a) ... as alleged in the 8 second count of the Information....

9 “We, the jury, impaneled to try the above-entitled cause[,] find it to be true as to [defendant] that the crime was done by one of the following means, 10 which is within the meaning of ... [s]ection 189[:] (a) destructive device or explosive; (b) weapon of mass destruction; (c) armor-penetrating 11 ammunition; (d) poison; (e) lying in wait; (f) torture; (g) willful, deliberate and premeditated killing; (h) discharge of a firearm from a motor vehicle 12 intentionally at another person outside the vehicle with the intent to inflict death; (i) perpetration of or attempt to perpetrate arson, rape, carjacking, 13 robbery, burglary, mayhem[,] or kidnapping as alleged in the Information.”

14 On count 2, the court imposed 14 years to life, plus 25 years to life for firearm discharge proximately causing great bodily injury, five years for the prior serious 15 felony conviction, and two years for two prior prison terms.

16 b. Analysis.

17 “[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment 18 in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person 19 guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years.” (§ 664, subd. (a); accord, People v. Gonzalez (2012) 54 20 Cal.4th 643, 654.) 21 To begin with, defendant questions the format of the accusatory pleading regarding count 2, which (1) alleged attempted murder; and (2) under “enhancement,” alleged 22 the crime was done by “one of” several “means” enumerated in section 189. (Capitalization omitted.) The language of section 664, subdivision (a), is 23 unequivocal: an indeterminate term will be imposed only where the crime attempted is willful, deliberate, and premeditated murder. [Fn.15] Nevertheless, while the 24 information should have tailored the allegation on count 2 to assert only willful, deliberate, premeditated attempted murder, it still complied with the statutory 25 pleading requirement. Section 664, subdivision (a), states: “The additional term provided in this section for attempted willful, deliberate, and premeditated murder 26 shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading....” Here, the 27 information identifies “willful, deliberate, and premeditated killing” as “one of” the possible “means” defendant attempted to murder Rocha. (Capitalization omitted.) 28 This is not a scenario in which the pleading omitted the material language. (Cf. 51 1 People v. Arias (2010) 182 Cal.App.4th 1009, 1017 [charging document alleged defendant unlawfully and with malice aforethought attempted to murder victims but 2 failed to allege these attempted murders were willful, deliberate, and premeditated].) Instead, the information contained the material language and other extraneous points 3 that should not have been listed. Regardless, the information “gave defendant notice that he was potentially subject to the enhanced punishment provision for attempted 4 murder under section 664, subdivision (a).” (Id. at p. 1019.)

5 [Fn.15] The Attorney General contends “the ‘willful, deliberate, and premeditated’ language in section 664 should be read to include all forms of 6 first degree murder listed in section 189.” Defendant disagrees, as do we. “The court's role in construing a statute is to ‘ascertain the intent of the 7 Legislature so as to effectuate the purpose of the law.’ [Citations.] In determining the Legislature's intent, a court looks first to the words of the 8 statute. [Citation.] ‘[I]t is the language of the statute itself that has successfully braved the legislative gauntlet.’ [Citation.]” (People v. Snook 9 (1997) 16 Cal.4th 1210, 1215.) “When looking to the words of the statute, a court gives the language its usual, ordinary meaning. [Citations.] If there is 10 no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. [Citations.]” (Ibid.) 11 Next, defendant argues: 12 “The jury verdict form for Count 2 asked jurors to make a special finding 13 pursuant to ... section 189. The verdict form did not ask the jury to identify which factor the jury relied upon. Instead, it simply listed the nine different 14 ways that a murder can be elevated to first degree murder ... and asked the jury to find that the attempted murder ‘was done by one of [those] means.’ 15 Thus, the jury's ‘true’ finding only indicates that the attempted murder was done by one of the nine ways listed on the jury verdict form. There was no 16 specific finding that the attempted murder was ‘willful, deliberate, and premeditated murder, as defined in Section 189.’” 17 We agree nothing on the face of the form indicated which of the nine means formed 18 the basis of the “true” finding. However, to the extent defendant suggests section 664, subdivision (a), requires an express finding in the verdict that he attempted 19 willful, deliberate, and premeditated murder, we disagree in view of the plain meaning of the provision. (See, e.g., People v. Chevalier (1997) 60 Cal.App.4th 507, 20 515 [similar to the language in § 664, subd. (a), Health & Saf. Code, § 11370.4, subd. (c) provides that the weight enhancement shall not be imposed unless it “is 21 charged in the accusatory pleading and admitted or found to be true by the trier of fact”; an express finding by the jury in the verdict of the weight enhancement is not 22 required because the statute does not state that an express finding is required].) Moreover, under the circumstances of this particular case, a finding of willful, 23 deliberate, and premeditated attempted murder was discernible.

24 “‘“A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.” [Citations.]’ 25 [Citations.] ‘The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]’ [Citation.] ‘[T]echnical 26 defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights 27 suffered no prejudice. [Citations.]’ [Citation.]” (People v. Jones (1997) 58 Cal.App.4th 693, 710–711; see People v. Arredondo (1975) 52 Cal.App.3d 973, 978 28 [“The cases equate ‘substantial rights' with reversible error, i.e., did the error result 52 1 in a miscarriage of justice?”]; see also People v. Watson, supra, 46 Cal.2d at p. 836 [“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an 2 examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have 3 been reached in the absence of the error.”].) “The same rules apply to a finding on a sentence enhancement allegation.” (People v. Chevalier, supra, 60 Cal.App.4th at 4 p. 514.)

5 As noted, in connection with count 2, the court specifically instructed the jury to decide “whether the People have proved the additional allegation that the attempted 6 murder was done willfully, and with deliberation and premeditation.” It did not give analogous instructions concerning attempted murder perpetrated in the commission 7 of arson, rape, carjacking, robbery, burglary, mayhem, or kidnapping or perpetrated by means of a destructive device or explosive, a weapon of mass destruction, armor- 8 penetrating ammunition, poison, lying in wait, torture, or discharging a firearm from a motor vehicle. Defendant recognizes “CALCRIM No. 601 [the instruction on 9 deliberation and premeditation] only applied to the ‘deliberation and premeditation’ alternative mentioned in the pleadings” and “did not purport to define the other ... 10 ways that were alleged in the pleading ... to elevate attempted murder to an aggravated offense.” Because the instruction “framed the pertinent issue” (People 11 v. Mackabee (1989) 214 Cal.App.3d 1250, 1256), the “true” finding on the verdict form could only refer to the jury's determination as to whether defendant's attempted 12 murder of Rocha was willful, deliberate, and premeditated. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are presumed able to understand and correlate 13 instructions and are further presumed to have followed the court's instructions.”]; see also People v. Mackabee, supra, at pp. 1256–1257 [“[T]he jury instructions were 14 sent into the jury room during deliberations[;] the information was not. It is therefore reasonable to assume the jury paid more attention to the instructions than to the 15 information.”].)

16 Defendant insists the jury's finding of aggravated attempted murder could have been (and was likely) based on shooting a firearm from a motor vehicle. We disagree. 17 The court's instructions on count 2 only referred to willful, deliberate, and premeditated attempted murder. The instructions on shooting from a motor vehicle 18 were given in connection with count 1, not count 2. Absent affirmative evidence to the contrary, it must be presumed the jury complied with the instructions given to it. 19 (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1370; People v. Crow (1994) 28 Cal.App.4th 440, 446; accord, Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 20 803.) 21 In addition, defendant's substantial rights suffered no prejudice. The proof of willful, deliberate, and premeditated attempted murder was overwhelming. The record 22 establishes defendant was aware Rocha took a silver two-door Saturn from defendant's residence. (See People v. Brooks, supra, 3 Cal.5th at pp. 58–59 [jury 23 could reasonably infer motive to kill from evidence of a defendant's prior relationship with the victim].) On the night of the shooting, Rocha parked the Saturn 24 at a 7–Eleven at approximately 12:11 a.m. Defendant, who had been at a different convenience store since 12:02 a.m., went to the 7–Eleven. (Cf. People v. Koontz 25 (2002) 27 Cal.4th 1041, 1081 [defendant pursued victim from one apartment to another].) Defendant was armed with a loaded handgun, “indicating he had 26 considered the possibility of a violent encounter.” (People v. Lee, supra, 51 Cal.4th at p. 636.) Defendant arrived at 7–Eleven in the Honda Accord at precisely 12:16 27 a.m. He snuck up behind the Saturn, in which Rocha was essentially confined (see People v. Pensinger (1991) 52 Cal.3d 1210, 1237 [total vulnerability of the victim]) 28 and immediately fired three shots at close range (see, e.g., People v. Manriquez, 53 1 supra, 37 Cal.4th at p. 578; People v. Koontz, supra, at p. 1082). “[T]he manner of killing [and attempted killing] was calm and exacting, supporting a conclusion that 2 it was the result of preexisting thought and reflection rather than an unconsidered rash impulse.” (People v. Lee, supra, at p. 637.) 3 Finally, regarding defendant's claim of Apprendi [Fn.16] error, we point out, in the 4 cases cited by defendant in support of the claim, the trial judge enhanced a prison sentence after he (not the jury) made the requisite factual determination. (See 5 Washington v. Recuenco (2006) 548 U.S. 212, 214–215; Apprendi, supra, 530 U.S. at pp. 468–469; see also Blakely v. Washington (2004) 542 U.S. 296, 298; Ring v. 6 Arizona (2002) 536 U.S. 584, 588–589.) By contrast, in the instant case, the issue of whether defendant willfully, deliberately, and with premeditation attempted to 7 murder Rocha was submitted to the jury and an affirmative finding was inferable from the record. Even assuming, arguendo, there was an error, it was harmless 8 beyond a reasonable doubt because there was overwhelming evidence of planning, motive, and manner of killing, all of which may establish premeditation and 9 deliberation. (People v. Jablonski (2006) 37 Cal.4th 774, 817.)

10 [Fn.16] Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).

11 Vasquez, 2018 WL 716845, at *36-40.

12 a. Legal Standard and Analysis

13 It is well-settled that federal habeas relief is not available to state prisoners challenging

14 state law. Estelle, 502 U.S. at 67 (1991) (“We have stated many times that federal habeas corpus

15 relief does not lie for errors of state law); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997)

16 (“alleged errors in the application of state law are not cognizable in federal habeas corpus”

17 proceedings). Thus, to the extent Petitioner disagrees with the state court’s determination that the

18 accusatory pleading complied with state notice requirements, he fails to present a federal

19 question. Likewise, his disagreement with the state court determination that Cal. Penal Code §

20 664(a) does not require an express finding that he attempted willful, deliberate, and premeditated

21 murder fails to present a federal claim.

22 Petitioner also contends that his sentence violates Apprendi. In Apprendi v. New Jersey,

23 530 U.S. 466, 488-90 (2000), the Supreme Court held that “any fact [other than a the fact of a

24 prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum

25 must be submitted to a jury, and proved beyond a reasonable doubt.” Petitioner states that

26 because Cal. Penal Code § 664(a) increases the penalty for attempted murder if it is premeditated,

27 the question of premeditation must be submitted to the jury. The state court reasonably

28 determined that Apprendi was not violated because the issue of premeditation was in fact 54 1 submitted to the jury. The state court also reasonably determined that even if Apprendi error

2 occurred, it was harmless beyond a reasonable doubt, because there was overwhelming evidence

3 of planning, motive and manner of killing sufficient to establish premeditation and deliberation.

4 The claim should be denied.

5 9. Insufficiency of the Evidence

6 Petitioner contends that there was insufficient evidence to support the conviction for

7 making criminal threats. Petitioner raised this claim on direct review, and it was denied in a

8 reasoned decision as follows:

9 “Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, 10 ‘“an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, 11 and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.”’ [Citations.]” (In re George T. (2004) 33 Cal.4th 12 620, 630–631.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 13 71 Cal.2d 745, 755.) “We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ‘“any rational trier of fact could have 14 found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 955, italics omitted.) 15 “Before the judgment of the trial court can be set aside for insufficiency of the 16 evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it.” 17 (People v. Redmond, supra, 71 Cal.2d at p. 755.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 18 it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. 19 [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 632.) 20 “This standard of review ... applies to circumstantial evidence. [Citation.] If the 21 circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also 22 reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” (People v. Tripp, supra, 151 Cal.App.4th at p. 955.) 23 “In order to prove a violation of section 422, the prosecution must establish all of 24 the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant 25 made the threat ‘with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which 26 may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, ... so 27 unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the 28 threat,’ (4) that the threat actually caused the person threatened ‘to be in a sustained 55 1 fear for his or her own safety or for his or her immediate family's safety,’ and (5) that the threatened person's fear was ‘reasonabl[e]’ under the circumstances.” 2 (People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

3 Substantial evidence derived from People's Exhibit No. 9–A supported defendant's conviction for criminal threats. He and Dunn were alone in a moving vehicle at 4 nighttime. It is reasonable to deduce defendant was driving and in control of the vehicle, i.e., he was able to keep the doors locked, judging from Dunn's later pleas 5 to “[l]et [her] out,” inter alia. (See People v. Fierro (2010) 180 Cal.App.4th 1342, 1348 [the defendant's proximity to victim adds weight to purported threat].) With 6 access to a knife, he told Dunn to “accept” her “punishment” for her failure to steal for him “[t]wo days in a row,” a failure he equated with “[s]traight utter 7 disrespectfulness.” (Cf. ibid. [the defendant made a willful threat to inflict death or great bodily injury when he displayed a weapon and told the victim he would kill 8 him].) Clearly distressed, Dunn begged him not to “hurt” or “stab” her and offered to “do anything,” including prostitution, to redeem herself and avoid physical harm. 9 Unmoved by her pleas and tears, defendant told Dunn she was “gonna get it, regardless,” explaining (1) she had to “suffer the consequences” for not “follow[ing] 10 rules”; and (2) if he “let [her] get away with this,” “then the next one's gonna wanna get away with it.” (See People v. Wilson (2010) 186 Cal.App.4th 789, 806 [“[T]he 11 defendant must intend for the victim to receive and understand the threat....”].) As the footage demonstrated, Dunn was in fear for her own safety “beyond [a] 12 momentary, fleeting, or transitory” period (People v. Allen (1995) 33 Cal.App.4th 1149, 1156), a fear which manifested in frenzied screaming when defendant made a 13 sudden movement and said, “I want you to fuckin' die.” Based on the overall circumstances, a reasonable jury could have found defendant's statements were 14 “‘sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution’” (People v. 15 Hamlin (2009) 170 Cal.App.4th 1412, 1433, italics omitted) and Dunn's sustained fear was reasonable (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140). Even 16 assuming, arguendo, defendant may not have intended to stab or otherwise inflict physical damage on Dunn, a “[s]pecific intent to carry out the threatened crime is 17 not required.” (People v. Butler (2000) 85 Cal.App.4th 745, 759.) [Footnote omitted.] 18

19 Vasquez, 2018 WL 716845, at *31.

20 a. Legal Standard

21 The law on sufficiency of the evidence is clearly established by the United States Supreme

22 Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S.

23 307, the test on habeas review to determine whether a factual finding is fairly supported by the

24 record is “whether, after viewing the evidence in the light most favorable to the prosecution, any

25 rational trier of fact could have found the essential elements of the crime beyond a reasonable

26 doubt.” Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus,

27 only if “no rational trier of fact” could have found proof of guilt beyond a reasonable doubt will a

28 petitioner be entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by 56 1 the elements defined by state law. Id. at 324, n. 16.

2 If confronted by a record that supports conflicting inferences, a federal habeas court “must

3 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any

4 such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.

5 Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a

6 conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).

7 After the enactment of the AEDPA, a federal habeas court must apply the standards of

8 Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

9 2005). In applying the AEDPA’s deferential standard of review, this Court must presume the

10 correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson,

11 477 U.S. 436, 459 (1986).

12 In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further

13 explained the highly deferential standard of review in habeas proceedings, by noting that Jackson

14 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. A reviewing court may 15 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. What is more, a federal court may not 16 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 17 instead may do so only if the state court decision was “objectively unreasonable.” 18 Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to 19 be mistaken, but that they must nonetheless uphold. 20 Id. at 2. 21 b. Analysis

22 A federal habeas court determines sufficiency of the evidence in reference to the

23 substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at

24 324 n. 16. Petitioner was convicted of violating California Penal Code § 422. That section states:

25 Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, 26 made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on 27 its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a 28 gravity of purpose and an immediate prospect of execution of the threat, and thereby 57 1 causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the 2 county jail not to exceed one year, or by imprisonment in the state prison.

3 Cal. Penal Code § 422(a).

4 Thus, to be found guilty of this crime, the prosecution must prove five distinct

5 elements:

6 (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat 7 ‘with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made 8 verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, 9 unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that 10 the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family's safety,’ and (5) that the threatened 11 person's fear was ‘reasonabl[e]’ under the circumstances.

12 People v. Toledo, 26 Cal.4th 221, 227-28 (2001) (quoting People v. Bolin, 18 Cal.4th 297, 337-

13 340 & fn. 13 (1998).

14 Viewing the evidence in the light most favorable to the prosecution, it is clear that the

15 state court’s determination that there was sufficient evidence was not unreasonable. As noted by

16 the state court, Petitioner made several statements which reasonably could have been construed as

17 a threat of death or great bodily injury. While holding a knife, Petitioner told the victim “this is

18 your . . . punishment.” (Doc. 19-5 at 15.) When the victim pleaded with him not to “hurt” or

19 “stab” her, he told her she could “cry all you want,” but she was “gonna get it, regardless,”

20 because she had to “suffer the consequences.” (Doc. 19-5 at 6-10.) Subsequently, when the

21 victim pleaded that she would do anything for him and asked him what he wanted of her, he made

22 a sudden movement and said, “I want you to fuckin’ die,” at which point the victim screamed in

23 terror. (Doc. 19-5 at 14.) From this evidence, a jury could conclude that the requirements of Cal.

24 Penal Code § 422(a) were met.

25 In light of the above, Petitioner fails to show that no rational trier of fact would have

26 agreed with the state court’s determination. Petitioner fails to demonstrate that the state court

27 rejection of his claim was contrary to, or an unreasonable application of, the Jackson standard.

28 Further, the state court reasonably rejected Petitioner’s claim that his threats were 58 1 protected speech under the First Amendment. The California courts have rejected contentions

2 that Cal. Penal Code § 422 violates the First Amendment. Toledo, 26 Cal.4th at 233 (Section 422

3 is not unconstitutionally overbroad). Petitioner concedes that a “true threat” is not protected

4 speech under the First Amendment. See Virginia v. Black, 538 U.S. 343, 359 (2003).

5 Nevertheless, he alleges his words fell short of constituting a true threat. For the same reasons

6 stated above, his arguments fail. A rational jurist could determine that Petitioner’s words could,

7 and in fact did, cause the victim to believe she would be subjected to great bodily injury or death.

8 The claim should be denied.

9 10. Cumulative Error

10 In his final claim for relief, Petitioner alleges that the cumulative effect of the errors

11 deprived him of due process. Petitioner also raised this claim on direct appeal to the Fifth DCA,

12 which denied the claim in the last reasoned decision as follows:

13 “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” 14 (People v. Hill (1998) 17 Cal.4th 800, 844.) “A claim of cumulative error is in essence a due process claim....” (People v. Rivas (2013) 214 Cal.App.4th 1410, 15 1436.) “‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.”’” (Ibid.) “[T]he reviewing court must ‘review each 16 allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their 17 absence.’” (People v. Williams (2009) 170 Cal.App.4th 587, 646.) 18 Having reviewed and analyzed each alleged error, we cannot conclude the cumulative effect was such that defendant was deprived of due process and a fair 19 trial. 20 Vasquez, 2018 WL 716845, at *42. 21 a. Legal Standard and Analysis

22 “Multiple errors, even if harmless individually, may entitle a petitioner to habeas relief if

23 their cumulative effect prejudiced the defendant.” Ceja v. Stewart, 97 F. 3d 1246, 1254 (9th Cir.

24 1996) (citing Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992)); see also Karis v. Calderon,

25 283 F.3d 1117, 1132 (9th Cir. 2002). However, the Ninth Circuit has also recognized that where

26 there is no single constitutional error, nothing can accumulate to the level of a constitutional 27 violation. See Rup v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). In this case, no errors occurred,

28 and hence, there can be no cumulative error. Even if errors occurred, a reasonable factfinder 59 1 could have found that the cumulative effect of the alleged errors did not prejudice Petitioner.

2 IV. RECOMMENDATION

3 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be

4 DENIED with prejudice on the merits.

5 This Findings and Recommendation is submitted to the United States District Court Judge

6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

7 Local Rules of Practice for the United States District Court, Eastern District of California. Within

8 thirty (30) days after being served with a copy of this Findings and Recommendation, any party

9 may file written objections with the Court and serve a copy on all parties. Such a document

10 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies

11 to the Objections shall be served and filed within ten (10) court days (plus three days if served by

12 mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling

13 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections

14 within the specified time may waive the right to appeal the Order of the District Court. Martinez

15 v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

16 IT IS SO ORDERED. 17

18 Dated: December 16, 2019 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19

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