Edward Anthony Ceja v. M.D. Biter, No. 8:2011cv00477 - Document 12 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) For the reasons stated, the petition for writ of habeas corpus is DENIED. (rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 ) ) ) ) ) ) ) ) ) ) EDWARD ANTHONY CEJA, 13 Petitioner, 14 v. 15 M.D. BITER, Warden, Respondent. 16 Case No. SACV 11-0477-MLG MEMORANDUM OPINION AND ORDER 17 18 19 I. Background 20 A. Procedural History 21 Petitioner Edward Ceja was convicted by an Orange County 22 Superior Court jury of possession of a firearm by a felon (Cal. Penal 23 Code § 12021(a)(1)) and active participation in a criminal street 24 gang (Cal. Penal Code § 186.22(a)). The jury also found true the 25 allegation that Petitioner possessed the firearm for the benefit of 26 a criminal street gang (Cal. Penal Code § 186.22(b)(1)). Petitioner 27 admitted that he had suffered a prior strike conviction (Cal. Penal 28 Code §§ 667(d),(e)(1), 1170.12(b),(c)(1)). Petitioner was sentenced 1 to prison for a term of twelve years. 2 Petitioner appealed his conviction to the California Court of 3 Appeal, arguing that the evidence was insufficient to support the 4 firearm charge and that he was denied a fair trial. (Lodgment 4.) On 5 September 6 conviction in a written opinion. (Lodgment 7.) Petitioner filed a 7 petition for review in the California Supreme Court, raising the same 8 claims as in his earlier appeal. (Lodgment 8). The California Supreme 9 Court summarily denied the petition. (Lodgment 9.) 20, 2010, the court of appeal affirmed Petitioner s On March 28, 10 2011, Petitioner filed this petition for writ of habeas corpus, 11 raising identical grounds for relief. 12 B. 13 The underlying facts are excerpted from the unpublished opinion 14 of the California Court of Appeal. People v. Edward Anthony Ceja, No. 15 G042106 (Cal.Ct.App., Sept. 20, 2010) (Lodgment 7).1 In all quoted 16 sections of this Report, the term Petitioner is substituted for 17 Defendant. 18 Facts 1. Events Leading up to November 22, 2008 19 Frankie Velasquez, a Folks gang member, lived in Folks 20 gang territory on the corner of Neighbors Avenue and 21 Mohican Way in Anaheim. Two weeks before the charged 22 incident, members of Citron Street, a rival gang, drove 23 through the Folks neighborhood while Velasquez was standing 24 outside his house. The Citron Street members challenged 25 Velasquez and fired two shots at him with a bird shot 26 27 28 1 Those sections of the court of appeal opinion which are not relevant to this habeas corpus petition have been omitted for purposes of brevity. 2 1 shotgun, blinding him. 2 On November 20, 2008, Anaheim Police Officer Brian 3 Browne, who also testified as a gang expert, was on patrol 4 with his partner in the Mohican Glenn neighborhood. His 5 partner saw Velasquez with approximately five other gang 6 types in the alley by the garage behind Velasquez s house. 7 According to Browne, Petitioner stood out because of all of 8 his tattoos. Browne heard the officers presence announced 9 as they approached the group on foot. Officer Browne 10 detained the group, which included Petitioner and Robert 11 Kundysek, an active member of Folks. 12 Petitioner was cooperative and discussed his tattoos. 13 Browne spoke about Velasquez having been shot. Petitioner 14 said he did not know what had happened yet because he had 15 just 16 Petitioner admitted being a member of Folks and that his 17 moniker was Soldier. Browne asked why Petitioner was 18 posted up and Petitioner said because it was his hood. 19 When asked if he was going to retaliate for Velasquez s 20 shooting, Petitioner said, We ll see. I just got out, and 21 I need to find out what is going on. Browne advised 22 Petitioner 23 congregating with other gang members and Petitioner said 24 they were just visiting him to pay him respect for having 25 served his time in prison. been released he was from in prison violation four of days his earlier. parole by 26 Browne contacted Petitioner in the neighborhood again 27 the next evening. Petitioner was standing by himself in 28 front of a fence bordering 3 his apartment complex. 1 Petitioner s head was cleanly shaved and the tattoos on his 2 head were exposed. Petitioner did not attempt to run. He 3 said he still backed up Folks, but that he did not know 4 whether he was going to participate in any gang-related 5 activity. The police searched Petitioner on each occasion. 6 He did not have any weapons or contraband on his person. 7 2. 8 Officer November 22, 2008 Richard Browning of the Anaheim Police 9 Department patrols the Folks gang territory, which consists 10 of large apartment complexes, duplexes and fourplexes. On 11 November 22, he was on patrol in that area in a marked 12 black and white patrol car. As he approached Mochican, he 13 saw 10 to 15 people underneath a tree in front of an 14 apartment on Neighbors, and about 10 to 15 yards away, 15 three people standing underneath a street sign on the 16 corner of Mohican and Neighbors. Browning identified the 17 three 18 Browning s vehicle turned the corner, the three looked over 19 their shoulders and ran westbound on Neighbors. as Petitioner, Kundysek, and Erik Lopez. As 20 Browning drove into an alleyway in an attempt to 21 intercept them. He turned off the patrol car s lights and 22 got out, walking into a breezeway between two sets of 23 apartments. 24 Petitioner go to the front lawn of one of the apartment 25 buildings. 26 distance between them. Hearing a voice, Browning stopped. 27 He saw Kundysek looking up and down the street. Kundysek 28 and Petitioner started to walk across the lawn. Browning He peeked Browning around followed, 4 the corner attempting to and close saw the 1 walked to within five feet of Petitioner and Kundysek 2 without them noticing. When he turned the corner, he saw 3 Petitioner, Kundysek, and Lopez together. He detained all 4 three, ordered them to their knees, and called for backup. 5 Petitioner had on gloves at the time he was arrested. 6 Officers Anderson and Staymates responded. Browning 7 told Anderson to check the areas around the breezeway and 8 in front of the apartments for a weapon or contraband. 9 Staymates watched Petitioner, Kundysek, and Lopez while 10 Anderson and Browning searched. Anderson found a gun about 11 five to six inches from the top of a bush. The gun and 12 bullets were inside a black beanie. Browning testified that 13 the beanie was warm to the touch. 14 Browning pulled Lopez away from the other two to talk 15 about the gun. Browning said they found a gun and wanted to 16 know who it belonged to, because he knew it belonged to 17 one of the three of them. Lopez motioned with his head 18 toward Petitioner and said Petitioner had the gun. Lopez 19 said he could not talk in from of the others. Brown said 20 they would talk at the police station. 21 3. Erik Lopez s Testimony 22 Lopez testified under a grant of immunity. He had 23 lived in the Folks neighborhood for four or five months and 24 was familiar with the Folks gang. On November 22, he was 25 walking to the house of a girl he knew when he saw 26 Petitioner standing on the corner of Neighbors and Mohican. 27 Petitioner, who Lopez knew only as Soldier, asked Lopez 28 to post up with him. According to Lopez, post up means 5 1 to stand around doing nothing. Lopez said he had to go 2 somewhere and asked Petitioner why he was not hanging out 3 with the others. Petitioner said he did not want to shoot 4 in 5 neighborhood. front of children if someone came through the 6 Lopez went to visit the girl and was on his way home 7 about an hour later, at around 9:30 p.m. Petitioner was 8 standing on the same corner, talking to Kundysek. Lopez 9 said Petitioner was wearing a beanie each time he saw him 10 that day. 11 Petitioner and Kundysek asked Lopez to join them when 12 Lopez stopped briefly to talk. He told them he had to get 13 home for curfew and started to walk away. Lopez then saw 14 Petitioner and Kundysek running. One of them said that the 15 cops are coming. Kundysek and Petitioner ran in between 16 some duplexes and Lopez kept walking. Lopez said he saw 17 Petitioner take off his beanie, take something from his 18 waistband, put it inside the beanie, and throw the beanie 19 inside the bush. Although Lopez did not see what Petitioner 20 put into the beanie, he assumed it was a gun. 21 4. DNA and Fingerprint Evidence 22 The gun was dusted for fingerprints but none were 23 found. DNA samples were collected from the gun s grip, 24 trigger and magazine release. Buccal swabs were taken from 25 Petitioner, Kundysek and Lopez but they were excluded as 26 contributors. 27 28 5. The Gang Expert s Testimony Browne testified that he has investigated several 6 1 crimes committed by Folks gang members. Folks stands for 2 Family of Latin Kings. It is a traditional Hispanic street 3 gang and has been in existence since at least the early 4 1980's. It has approximately 60 documented members, about 5 one-half of whom are active in the gang. Its major sign is 6 FOLKS, but it also uses AFG, GF and Family of Latin Kings. 7 The gang s primary activities include felony gun possession 8 and 9 convictions of various Folks gang members, including 2008 10 convictions for felony assault and active participation in 11 a 12 concealment of a firearm in a vehicle by an active gang 13 participant and active participation in a criminal street 14 gang. 15 felony criminal vandalism. street The gang, prosecution and 2007 introduced convictions the for Browne testified that Petitioner was a member of the 16 Folks 17 reaching his conclusion, Browne investigated Petitioner s 18 background and considered a number of factors. Petitioner 19 had Folks tattoos. He received a Step notice in 2006. On at 20 least 15 occasions, Petitioner was contacted by police 21 while he was in the presence of other Folks gang members. 22 Browne also considered Petitioner s 2007 statements that he 23 is a Folkster till I die and that if anything happens in 24 the neighborhood, he is probably going to know about and be 25 involved in it. criminal street gang on November 22, 2008. In 26 Browne also testified to the meaning of Petitioner s 27 tattoos. Petitioner has an A tattooed on the top of his 28 head. The A signifies Anaheim, letting others know he is 7 1 from there and backs up the city. AFG, which stands for 2 Anaheim Folks Gang, is tattooed on the top of his head. 3 Anaheim is tattooed across the back of his neck with 4 Folks tattooed beneath it, indicating that he backs up 5 the Folks gang. His moniker Soldier is tattooed on him as 6 well. On his right hand is Halo, another way of referring 7 to Anaheim via the Angels baseball team. On his left hand 8 is City. He has tattoos on his fingers of the words 9 Vago and Malo, which are cliques of the Folks gang. One 10 of his hands also bears the tattoo 167, which stands for 11 AFG, the first, sixth and seventh letters of the alphabet. 12 Another of his tattoos reads R.I.P. Triste. Triste was a 13 Folks gang member murdered in the neighborhood by a rival 14 gang in 2002. On his left hand, Petitioner has three dots, 15 a common tattoo among gang members, meaning my crazy life, 16 la vida loca. Petitioner obtained most of his tattoos 17 between 2006 and 2008. 18 Tattoos are extremely significant in the gang 19 culture because the member becomes a walking billboard for 20 the gang. The existence of tattoos means members of other 21 gangs do not have to hit up the person because the 22 tattoos declare where he is from. Tattoos also indicate 23 that the person protects or commits crime 24 Petitioner s tattoos are consistent with gang tattoos. with his gang. 25 The prosecutor provided Browne with a set of facts in 26 a hypothetical situation, which were similar to the facts 27 of the charged offense, and asked Browne if he had an 28 opinion as to whether the offense was for the benefit of, 8 1 at the direction of, or in association with, a criminal 2 street gang. Browne opined the offense was for the benefit 3 of Folks. According to Browne, posting up is standing in 4 a location within the neighborhood where a gang member 5 feels he will be seen by any rival gang members that come 6 into the neighborhood. In essence, the individual posting 7 up is protecting the neighborhood. Many times, the person 8 posting up will have weapons hidden in close proximity, 9 either in a bush, a trashcan, or on his person. Posting up 10 with a loaded firearm benefits Folks by providing the gang 11 with an advantage over any gang that should come through 12 Folks neighborhood. The reputation of a gang member who 13 posts up with a firearm is benefitted. The fact that more 14 than one gang member posted up supported a conclusion that 15 the offense was committed in association with the criminal 16 street gang. 17 (Lodgment 7 at 3-9.) 18 19 II. 20 Standard of Review Under the Antiterrorism and Effective Death Penalty Act of 1996 21 ( AEDPA ), 22 prisoners who are in custody in violation of the Constitution or 23 laws or treaties of the United States. 28 U.S.C. § 2254(a). To 24 establish a right to relief, a petitioner must show that the state s 25 highest court rejected the petitioner s claim on the merits, and that 26 this 27 application of, clearly established Federal law, as determined by the 28 Supreme Court of the United States, or was based on an unreasonable federal rejection was habeas corpus contrary to, 9 relief or is available involved an to state unreasonable 1 determination of the facts in light of the evidence presented in the 2 State court proceeding. Id. § 2254(d); Harrington v. Richter, --- 3 U.S. 4 regardless of whether the state court explained its reasons for 5 rejecting a prisoner s claim. Richter, 131 S.Ct. at 784 ( Where a 6 state court s decision is unaccompanied by an explanation, the habeas 7 petitioner s burden still must be met by showing there was no 8 reasonable basis for the state court to deny relief. ). 9 ---, It is 131 not S.Ct. 770, enough 783-84 that a (2011). federal These court standards conclude apply in its 10 independent judgment that the state court decision is incorrect or 11 erroneous. Yarborough v. Alvarado, 541 U.S. 652, 665 (2004) (quoting 12 Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). The 13 state 14 objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 15 (2003); see also Renico v. Lett, --- U.S. ---, 130 S.Ct. 1855, 1865 16 (2010). AEDPA imposes a highly deferential standard for evaluating 17 state-court rulings; which demands that state-court decisions be 18 given the benefit of the doubt. Bell v. Cone, 543 U.S. 447, 455 19 (2005) (quoting Woodford, 537 U.S. at 24); Vasquez v. Kirkland, 572 20 F.3d 1029, 1035 (9th Cir. 2009). 21 court s Habeas application relief is of clearly unavailable if established fairminded law must jurists be could 22 disagree about the correctness of the state court decision. Richter, 23 131 S.Ct. at 786 (quoting Yarborough, 541 U.S. at 664)(internal 24 quotation marks omitted). For habeas relief to be granted, a state 25 prisoner must show that the state court s ruling on the claim being 26 presented in federal court was so lacking in justification that there 27 was an error well understood and comprehended in existing law beyond 28 any possibility for fairminded disagreement. Richter, 131 S.Ct. at 10 1 786-87. 2 The claims raised in the instant petition were presented to the 3 California Supreme Court, but that court did not issue a reasoned 4 decision. (Lodgment 9.) Accordingly, this Court must look through 5 the 6 reasoned decision as the basis for the state supreme court judgment. 7 See Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir. 2009) (citing Ylst 8 v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). The California Court of 9 Appeal, in a reasoned opinion on the merits, rejected Petitioner s 10 claims. (Lodgment 7.) Therefore, the reasoning of the California 11 Court 12 California 13 unreasonable application of, clearly established federal law. unexplained of Appeal California will Supreme Supreme be Court considered Court s decision decision to to determine is the last whether contrary to, or the an 14 15 16 III. Discussion A. 17 The Evidence Was Sufficient to Support Petitioner s Conviction for Felon in Possession of a Firearm 18 Petitioner contends that the evidence produced at trial was 19 insufficient to support his conviction for felon in possession of a 20 firearm because he was never seen with the gun, it was not found on 21 his person and there was no fingerprint or DNA evidence linking him 22 to the gun. (Pet. at 5.) The finding by the California Court of 23 Appeal that there was sufficient evidence to convict Petitioner of 24 the crime of felon in possession of a firearm was neither contrary to 25 nor an unreasonable application of federal law, nor an unreasonable 26 determination of the facts in light of the evidence presented. 27 In 28 insufficient his direct evidence appeal, to Petitioner support 11 his argued that conviction for there felon was in 1 possession of a firearm because the prosecution failed to prove that 2 he knew of or controlled the gun found in the beanie in the bush. The 3 elements of the offense of felon in possession of a firearm are (1) 4 conviction of a felony and (2) ownership, possession, custody or 5 control of a firearm capable of being concealed on the person. Cal. 6 Penal Code § 12021(a)(1). No specific criminal intent is required, 7 and a general intent to commit the proscribed act is sufficient to 8 sustain a conviction. People v. Snyder, 32 Cal.3d 590, 592 (1982). 9 10 The California Court of Appeal rejected Petitioner s claim, stating as follows: 11 Viewing the evidence in the light most favorable to the 12 judgment, Petitioner, Kundysek, and Lopez were on a street 13 corner in Folks gang territory when a police patrol car 14 appeared. All three ran away. Officer Browning caught and 15 detained them. Believing contraband or a weapon may have been 16 tossed during the chase, a search of the area was conducted. 17 A beanie containing a gun and bullets was found hidden in a 18 bush where Browning, looking for the suspects, saw Petitioner 19 reappear. The jury could reasonably infer the beanie had been 20 placed in the bush recently because the beanie was still warm 21 to the touch on this cool night. The fact that Petitioner wore 22 gloves at the time would account for the lack of his DNA or 23 fingerprints on the weapon. Moreover, Petitioner had been 24 stopped and searched by police each of the two preceding days. 25 He did not run on either occasion. The jury could reasonably 26 infer Petitioner ran this time because he had a gun on his 27 person and assumed he would again be searched. 28 These facts sufficiently corroborated Lopez s testimony 12 1 that he saw Petitioner remove something from his waistband, 2 put it in the beanie and place the beanie in the bush. The 3 evidence is substantial and supports the charge of felon in 4 possession of a firearm. 5 (Lodgment 7 at 10-11.) 6 It is clearly established that the Due Process Clause of the 7 Fourteenth Amendment requires that no person shall be made to suffer 8 the onus of a criminal conviction except upon sufficient proof - 9 defined as evidence necessary to convince a trier of fact beyond a 10 reasonable doubt of the existence of every element of the offense. 11 Jackson v. Virginia, 443 U.S. 307, 316 (1979) (explaining In re 12 Winship, 397 U.S. 358, 364 (1970)). To determine whether a criminal 13 conviction satisfies this constitutional requirement, [a] state court 14 must decide under Jackson whether the evidence, viewed in the light 15 most favorable to the prosecution, would allow any rational trier of 16 fact to find the defendant guilty beyond a reasonable doubt. Juan H. 17 v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (citing Jackson, 443 18 U.S. at 319). 19 In performing a Jackson analysis, circumstantial evidence and 20 inferences drawn from [the record] may be sufficient to sustain a 21 conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). 22 A jury s credibility determinations are entitled to near-total 23 deference under Jackson. Bruce v. Terhune, 376 F.3d 950, 957 (9th 24 Cir. 2004). The Jackson standard must be applied with explicit 25 reference to the substantive elements of the criminal offense as 26 defined by state law. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 27 2004) (en banc) (internal quotation marks omitted). On habeas review, 28 a federal court must apply the Jackson standard with an additional 13 1 layer of deference. Juan H., 408 F.3d at 1274. The role of a federal 2 habeas court under AEDPA is then to determine whether a state court 3 determination that evidence was sufficient to support a conviction 4 was an objectively unreasonable application of Jackson. Id. at 5 1274-1275. 6 Viewed in the light most favorable to the judgment, a rational 7 trier of fact could find beyond a reasonable doubt that Petitioner 8 was guilty of being a felon in possession of a firearm. As explained 9 by the court of appeal, Officer Browning testified that he found a 10 beanie containing a gun hidden in a bush near where he had been 11 chasing Petitioner. The beanie was warm to the touch and therefore 12 had likely been recently placed in the bush. Erik Lopez testified 13 that he saw Petitioner remove his beanie, take something from his 14 waistband and put it in the beanie, and then place the beanie in the 15 bush. Finally, based upon the testimony of Officer Browne that 16 Petitioner had not run when he had been searched on two separate 17 occasions and found not to have a weapon, the jury could reasonably 18 infer that the reason that Petitioner ran that night was because he 19 had a weapon on his person. This evidence was sufficient to allow a 20 rational trier of fact to conclude beyond a reasonable doubt that 21 Petitioner was guilty of being a felon in possession of a firearm. 22 The California Court of Appeal s decision was a reasonable 23 application of Jackson to the facts of this case. Accordingly, habeas 24 relief is not warranted on this claim. 25 26 B. Petitioner Has Failed to Show That He Was Denied a Fair Trial on the Criminal Street Gang Participation Charge 27 Petitioner contends that he was denied due process and a fair 28 trial with respect to his conviction for active participation in a 14 1 criminal street gang based upon the following alleged errors: (1) the 2 trial 3 allegations; (2) the gang expert improperly testified regarding 4 matters that were excluded from trial; and (3) a witness lied under 5 oath. (Pet. at 5.) Petitioner has failed to show that the decision of 6 the California Court of Appeal rejecting this claim was either 7 contrary to or an unreasonable application of federal law.2 8 court 1. 9 denied his request for bifurcation of the gang Bifurcation Prior to trial, Petitioner moved to bifurcate the trial on the 10 gang 11 possession charge, arguing that the evidence introduced to support 12 the gang allegations would be more prejudicial than probative. The 13 trial court denied the motion, stating that it viewed the matter as 14 a gang-motivated case. The trial court also stated that it would be 15 very difficult to try the matter without bringing to the jury s 16 attention why Lopez was hanging around with Petitioner that day and 17 why they were posted up, guarding Velasquez s residence and the 18 gang s turf. The trial court concluded that the probative value of related allegations from the trial on the underlying gun 19 20 21 22 23 24 25 26 27 28 2 Respondent contends that this claim is unexhausted because Petitioner failed to alert the California Supreme Court to the federal constitutional basis of the claim, and therefore the petition should be dismissed as a mixed petition. (Ans. at 13.) See Rose v. Lundy, 455 U.S. 509, 522 (1982). However, when an unexhausted ground for relief does not raise a colorable federal claim, a federal court may deny relief on the merits. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The purpose of this rule, as explained by a House Report on the provision, is to help avoid the waste of state and federal resources that results when a hopeless claim for relief is sent back to state courts to exhaust state remedies. Cassett, 406 F.3d at 624 (quoting H.R. Rep. 104-23, 1995 WL 56412, at *9-10 (Feb. 8, 1995)). Because Petitioner s claim is clearly meritless, the Court will address the substance of the claim rather than needlessly require Petitioner to first raise the same issue as a federal claim in state court. 15 1 the gang evidence to prove motive outweighed any prejudice from its 2 introduction. (Lodgment 7 at 13.) 3 The California Court of Appeal rejected Petitioner s claim that 4 the trial court abused its discretion in denying his motion to 5 bifurcate the gang allegation from the underlying offense. The court 6 of appeal found that the gang evidence was admissible to prove 7 Petitioner s motive for committing the underlying weapons charge: 8 The evidence indicated Petitioner posted up in a position where he 9 would be visible to and could shoot any rival gang entering Folks 10 territory, such as Citron Street, the gang that just two weeks 11 earlier went into Folks territory and shot Velasquez. (Lodgment 7 12 at 13.) 13 The decision of the California Court of Appeal is neither 14 contrary to, nor an unreasonable application of, clearly established 15 Supreme Court precedent because no Supreme Court case has squarely 16 addressed whether bifurcation of the trial of a gang sentencing 17 enhancement from trial of the underlying offense is constitutionally 18 mandated. See Fuentes v. Hall, 2009 WL 256558, at *4 (C.D.Cal. 2009). 19 Moreover, as noted Spencer v. Texas, 385 U.S. 554, 565-566 (1967), 20 [t]wo-part jury trials are rare in our jurisprudence; they have 21 never been compelled by this Court as a matter of constitutional law, 22 or even as a matter of federal procedure. In the absence of clearly 23 established Supreme Court precedent, relief is not available. 24 Alternatively, it is well established that a joinder of charges 25 or a failure to separate the guilt from the sentencing phase violates 26 due process only if it results in prejudice so great as to deny a 27 defendant his right to a fair trial. United States v. Lane, 474 U.S. 28 438, 449 (1986). This principle has repeatedly been applied to gang 16 1 enhancement bifurcation claims such as that presented here. See, 2 e.g., Mendoza v. Sisto, 2008 WL 2025144, *9 (E.D. Cal. 2008); Vang v. 3 Runnels, 2008 WL 324101, *9 (E.D. Cal. 2008); Gilbert v. Yates, 2007 4 WL 776284, *5 (N.D. Cal. 2007). Moreover, the Ninth Circuit has held 5 that a trial court s refusal to sever counts will justify habeas 6 relief only when prejudice is so great that it had a substantial and 7 injurious effect or influence in determining the jury s verdict. 8 Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000); see also 9 Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). As stated in Gilbert 10 at *5, the admission of evidence violates due process if there are 11 no permissible inferences the jury may draw from the evidence. Jammal 12 v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). 13 Petitioner s claim fails because he cannot demonstrate prejudice 14 arising from the trial court s refusal to bifurcate the trial of the 15 gang allegations from the trial on the underlying gun possession 16 offense. 17 Petitioner s gang evidence was relevant to demonstrate his motive for 18 carrying the gun. As noted by the court of appeal, the evidence of 19 In light of the admissibility of the gang evidence to establish 20 motive, as well as the substantial weight of the evidence against 21 Petitioner on the underlying weapons offense, Petitioner has failed 22 to 23 enhancement had a substantial and injurious effect on the verdict 24 and thereby deprived him of a fair trial. 25 court s rejection of Petitioner s claim was not contrary to nor an 26 unreasonable application of clearly established federal law, and 27 Petitioner is not entitled to habeas relief on this claim. 28 // show that the trial court s refusal 17 to bifurcate the gang Therefore, the state 1 2. Gang Expert Testimony 2 Based upon Officer Browne s preliminary examination testimony, 3 Petitioner brought a pretrial motion to prevent Browne from using the 4 term gang gun theory or referencing Mexican Mafia, Surenos. The 5 trial court ordered that the gang expert was not to testify about the 6 Mexican 7 introduce evidence of a gang gun, but that the expert could not 8 opine that if a number of individuals were posting up together and 9 a gun was present, each would know of the gun s presence. Mafia. The court also held that the prosecutor could 10 On direct examination, the prosecutor asked Browne about police 11 questioning of gang members for intelligence gathering purposes as 12 opposed to crime investigation. Browne answered: We gather we are 13 looking for a lot of things when we are talking to them. One, the way 14 they are dressing, the trends that are going on with clothing, 15 tattoos tattoos that are becoming more and more prevalent to that 16 specific 17 Petitioner immediately objected and the reference to Surenos was 18 stricken. (Lodgment 7 at 13-14.) gang with Orange County or to Surenos, which is... 19 The California Court of Appeal rejected Petitioner s claim of 20 error: Here there was no reference to the Mexican Mafia because the 21 mention of Surenos was stricken before the jury learned what the term 22 meant. Under these circumstances, Petitioner was not prejudiced .... 23 Moreover, the jury was instructed it could not consider stricken 24 testimony and we presume it followed the instruction. (Lodgment 7 at 25 14.) 26 Petitioner cannot show that he was prejudiced by the gang 27 expert s use of the word Surenos. The gang expert only used the 28 word on a single occasion, there was an immediate objection, and the 18 1 trial court struck the reference with an instruction directing the 2 jury not to consider stricken testimony as evidence. The Supreme 3 Court has held that a single question followed by an immediate 4 objection and a curative instruction does not violate a defendant s 5 due process rights. Greer v. Miller, 483 U.S. 756, 765-67 (1987). 6 Accordingly, Petitioner is not entitled to relief on this claim of 7 error. 8 3. Witness Perjury 9 Petitioner contends that a witness admitted to lying under 10 oath. (Pet. at 5.) Although Petitioner apparently did not raise this 11 claim in the California state courts, the Court will nevertheless 12 address this claim on the merits rather than require Petitioner to 13 exhaust this claim in the state courts. 14 Petitioner fails to identify the witness by name or state 15 specifically what the witness allegedly lied about. Petitioner also 16 fails to provide any citation to the record to support his claim. 17 Petitioner s conclusory allegations about alleged witness perjury are 18 clearly insufficient to merit habeas relief. See Jones v. Gomez, 66 19 F.3d 20 conclusions unsupported by record not sufficient to state claim); 21 James 22 allegations which are not supported by a statement of specific facts 23 do not warrant habeas relief. ). Accordingly, this claim is without 24 merit and Petitioner is not entitled to relief. 25 // 26 // 27 // 28 // 199, v. 204-05 Borg, (9th 24 Cir. F.3d 20, 1995) 26 19 (vague (9th speculation Cir. 1994) or mere ( Conclusory 1 2 IV. Conclusion For the reasons stated above, the petition for writ of habeas 3 corpus is DENIED. 4 5 Dated: July 14, 2011 6 7 8 _______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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