Zarazu v. Foulk, Case No. CV 13-8769-DOC (KK)

HENRY ZARAZU, Petitioner, v. FRED FOULK, Warden, Respondent.

Case No. CV 13-8769-DOC (KK)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

March 6, 2015

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TABLE OF CONTENTS

Page

I. SUMMARY OF RECOMMENDATION ................................ 6

II. PROCEDURAL HISTORY .......................................... 6

III. FACTUAL BACKGROUND ......................................... 7

1. December 2004 Incident ........................................... 8

2. February 12, 2006 Shooting ........................................ 9

3. Gang Evidence ................................................. 13

IV. PETITIONER'S CLAIMS FOR RELIEF ............................ 15

V. STANDARD OF REVIEW .......................................... 17

VI. DISCUSSION .................................................... 19

A. Petitioner Fails to Demonstrate Batson Error in Claim One ........... 19

1. Background ............................................ 19

2. State Court Opinion ..................................... 23

3. Discussion ............................................. 23

a. There Is No Clearly Established Federal Law Requiring a Trial Court To Allow Defense Argument at Step Three of a Batson Challenge ........................................ 23

b. The State Courts' Rejection of Petitioner's Batson Claim Was Neither Contrary to, Nor an Unreasonable Application Of, Clearly Established Federal Law ...................... 24

B. Petitioner Fails to Demonstrate the Evidence Presented at Trial Was Insufficient to Prove the Gang Enhancement or First Degree Murder in

Claims Two and Seven ........................................ 29

1. Background ............................................ 29

2. Legal Standard ......................................... 29

3. Gang Enhancement ...................................... 31

4. First Degree Murder ..................................... 33

C. Petitioner Fails to Demonstrate a Violation of Brady v. Maryland in Claim Three ...................................................... 34

1. Background ............................................ 34

2. State Court Opinion ..................................... 34

3. Legal Standard ......................................... 34

4. Non-Favorable Evidence ................................. 35

5. Nonexistent Evidence .................................... 35

6. Potentially Impeaching Evidence ........................... 36

D. Petitioner Fails to Demonstrate a Violation of Doyle v. Ohio in Claim Four ........................................................... 37

1. Background ............................................ 37

2. State Court Opinion ..................................... 39

3. Legal Standard ......................................... 40

4. Discussion ............................................. 40

E. Petitioner Fails to Demonstrate Error with Respect to the Exclusion of Evidence in Claim Five ........................................ 41

1. Background ............................................ 41

2. State Court Opinion ..................................... 42

3. Discussion............................................. 42

F. Petitioner Fails to Demonstrate Instructional Error in Claim Six ........ 44

1. Background ............................................ 44

2. Legal Standard ......................................... 44

3. Voluntary Manslaughter .................................. 45a. There is No Clearly Established Federal Law That Failure to Instruct on a Lesser-Included Offense in a Non-Capital Case Constitutes Constitutional Error ....................... 45

b. The State Court's Rejection of Petitioner's Voluntary Manslaughter Instructional Error Claim Was Neither Contrary, Nor Involved an Unreasonable Application of Clearly Established Federal Law ............................. 46

4. Extraneous Factors ...................................... 48

G. Petitioner Fails to Demonstrate the Impropriety of the Gang Expert Testimony in Claim Nine ...................................... 50

H. Petitioner Fails to Demonstrate Trial Court Error for Denigrating Defense Counsel .................................................... 52

I. Petitioner Fails to Demonstrate the Prosecutor Committed Misconduct by Disparaging Defense Counsel ................................... 55

J. Petitioner Fails to Demonstrate Trial Counsel Was Ineffective ......... 57

K. Petitioner Fails to Demonstrate Ineffective Assistance of Appellate Counsel ........................................................... 58

L. Petitioner Fails to Demonstrate Cumulative Error ................... 60

VII. RECOMMENDATION ............................................. 61

This Final Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.SUMMARY OF RECOMMENDATION

Henry Zarazu ("Petitioner"), a California state prisoner proceeding with counsel, has filed a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for first degree murder, attempted murder, and shooting at an occupied motor vehicle. Petitioner alleges various constitutional violations, including erroneous denial of a Batson/Wheeler motion, insufficient evidence,prosecutorial misconduct, erroneous exclusion of evidence, instructional error, erroneous gang expert testimony, judicial misconduct, and cumulative error. For the reasons that follow, the Second Amended Petition should be denied in its entirety.

II.PROCEDURAL HISTORY

On July 6, 2009, after a joint trial with codefendant Ernesto Perez, Jr. in the Superior Court of California for the County of Los Angeles, Petitioner was convicted of (1) one count of first degree murder in violation of Cal. Penal Code § 187(a); (2) two counts of attempted first degree murder in violation of Cal. Penal Code §§ 187(a), 664; and (3) one count of shooting at an occupied motor vehicle in violation of Cal. Penal Code § 246. Lodged Doc. ("Lodg.") 1, Vol. 4¹ at 648-54, 836; Lodg. 5, Vol. 24² at 7205-10. The jury also found true allegations that (1) the murder was perpetrated by means of discharging a firearm from a motor vehicle pursuant to Cal. Penal Code § 190.2(a)(21); (2) in each of the crimes a principal personally and intentionally discharged a firearm pursuant to Cal. Penal Code §§ 12022.53(b)-(e); and (3) Petitioner committed each offense for the benefit of, at the direction of, or in association with a criminal street gang pursuant to Cal. Penal Code § 186.22(b)(1). 4 CT at 648-54; 24 RT at 7205-10. On November 23, 2009, the trial court sentenced Petitioner to a prison term of life without the possibility of parole plus 105 years to life. 2 CT at 836; 24 RT at 8114-15.

On May 28, 2010, Petitioner and Perez filed a joint appeal in the California Court of Appeal. Lodg. 7-9. On May 23, 2012, the California Court of Appeal affirmed the judgment in an unpublished opinion. Lodg. 10.

On June 25, 2012, Petitioner filed a petition for review with the California Supreme Court. Lodg. 11. On August 22, 2012, the California Supreme Court denied the petition without comment. Lodg. 12.

On November 5, 2013, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Lodg. 13. On January 30, 2014, the California Court of Appeal denied habeas relief with citations to In re Robbins, 18 Cal.4th 770, 779-81 (1998) and In re Dixon, 41 Cal.2d 756, 759 (1953). Lodg. 14.

On November 13, 2013, Petitioner filed a Petition for a Writ of Habeas Corpus in this Court. On December 20, 2013, Petitioner filed a First Amended Petition, followed by the instant Second Amended Petition ("SAP") on March 25, 2014. On August 1, 2014, Respondent filed an Answer to the SAP ("Answer"). Petitioner filed a Reply on October 23, 2014.

Meanwhile, on February 4, 2014, Petitioner filed in the California Supreme Court a petition for review from the denial of habeas relief by the California Court of Appeal. Lodgs. 15-17. On March 19, 2014, the California Supreme Court denied review. Lodg. 18.

Thus, this matter has been submitted for decision.

III.FACTUAL BACKGROUND

In affirming Petitioner's convictions, the California Court of Appeal summarized the underlying factual background. Lodg. 6 at 2-7. Petitioner has not challenged the state court's summary, and a review of the record reveals its accuracy. See Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.") (citations and internal quotation marks omitted). Accordingly, the Court adopts the factual discussion of the California Court of Appeal opinion as a fair and accurate summary of theevidence:³

1. December 2004 Incident

Nunez was a member of the Wicked Town Bandits, or WTB, crew. He left Los Paranderos, or LPS, to be a member of WTB. Zarazu was a member of LPS with Nunez. On December 6, 2004, Nunez was walking down the street when a blue van pulled up next to him. He heard a male voice from the van say, "You're a bitch." When he looked up, he saw Zarazu in the front passenger seat of the blue van. Concerned for his safety, Nunez began to run away. When he reached the end of the block, the van pulled up again. Again he heard a male from the van say, "You're a bitch." He ran into a nearby school and hid for 10 to 15 minutes. He came out of the school and started walking again and the blue van appeared another time. Zarazu said, "You're a bitch," and got out of the van with a bat in his hands. Zarazu chased him with the bat and he ran away. Another 20 to 30 minutes later, as he was walking down a different street, Zarazu pulled up in a green Mustang. He had seen Zarazu in the Mustang three or four times before. Three people got out of the Mustang, including Zarazu. One of them, a male Nunez did not know,

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