Castillo v. Clark (610 F. Supp. 2d 1084, 2009)

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

A. HOWARD MATZ, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, including the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable A. Howard Matz, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On June 22, 2006, petitioner lodged for filing a Petition for Writ of Habeas Corpus by a Person in State Custody (“Pet.”) herein. The Petition alleged nine separate grounds for relief.

Following three extensions of time, respondent filed an Answer to Petition (“Ans.”), including a supporting Memorandum of Points and Authorities (“Ans.Mem.”), on December 6, 2006. Concurrently, respondent lodged copies of the relevant state court records, including the Probation Report (which was lodged under seal). Respondent contended therein inter alia that three of petitioner’s grounds for relief were unexhausted (i.e., Grounds One, Seven, and Eight). (See Ans. at 2; Ans. Mem. at 24-30).

Following an extension of time, petitioner filed a Traverse (“Trav.”) on January 26, 2007. Then, on November 27, 2007, petitioner filed a document captioned “Motion to Leave to Amend the Traverse to Respondent’s Return to First Petition for Writ of Habeas Corpus.” Specifically, petitioner sought to augment his arguments with respect to Ground One of the Petition. On April 16, 2008, the then-assigned Magistrate Judge granted petitioner’s Motion, advised that he would construe the Motion as a “Supplemental Traverse” (“Supp.Trav.”), and ordered respondent to file a response thereto. Following two extensions of time, respondent filed a Response to Supplemental Traverse on July 2, 2008. That same date, the case was transferred from the calendar of Magistrate Judge Rayburn to the calendar of Magistrate Judge Block.

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the Petition be denied.

PROCEDURAL HISTORY

On January 6, 2004, a Los Angeles County Superior Court jury found petitioner guilty of first degree murder (with a special circumstance finding that he personally and intentionally discharged a firearm proximately causing death), attempted murder, shooting at an occupied motor vehicle, and being a convicted felon in possession of a firearm. As to the first three offenses, the jury also found true sentence enhancement allegations based on the discharge and use of a firearm. The jury was unable to reach a unanimous verdict with respect to other sentence enhancement allegations, and the trial court declared a mistrial as to those. (See Clerk’s Transcript on Appeal [“CT”] 220-22; 5 Reporter’s Transcript on Appeal [“RT”] 3301-11).

At the ensuing sentencing hearing held on March 16, 2004, after hearing from friends and family members of the murder victim and also affording both counsel the opportunity to be heard, the trial court imposed a term of 25 years to life on count one (first degree murder) plus a consecutive term of 25 years to life for the Cal.Penal Code § 12022.53(d) sentence enhancement (personal and intentional discharge of a firearm proximately causing death). The court stayed a 20-year sentence enhancement under § 12022.53(c) (personal and intentional discharge of a firearm) and a 10-year enhancement under § 12022.53(b) (personal use of a firearm). With respect to count two (attempted murder), the court imposed an upper term of nine years. The court additionally imposed a consecutive 20-year sentence pursuant to § 12022.53(c) and stayed a 10-year sentence under § 12022.53(b). The court specified that the sentences in counts one and two were to run consecutively. With respect to count three (shooting at an occupied motor vehicle), the court imposed the mid-term of five years but stayed the sentence pursuant to Cal.Penal Code § 654. With respect to count four (felon in possession of a firearm), the court imposed one-third the mid-term sentence of two years consecutive to count two. The total aggregate sentence was 79 years and 8 months to life. {See CT 240-46; 5 RT 3607-31).

Petitioner appealed his conviction and sentence, raising claims generally corresponding to the claims being alleged in the Petition herein. {See Respondent’s Notice of Lodging, [“Lodged Doc.”] # 3). In an unpublished decision issued on November 15, 2005, the California Court of Appeal rejected petitioner’s claims and affirmed the judgment in its entirety. {See Lodged Doc. # 6). Petitioner’s appellate counsel proceeded to file a “Petition for Review to Exhaust State Remedies” pursuant to former Rule 33.3 of the California Rules of Court. {See Lodged Doc. # 7). On January 25, 2006, the California Supreme Court summarily denied the Petition for Review without citation of authority. {See Lodged Doc. # 8).

Petitioner did not seek collateral relief in state court. {See Pet. at 4).

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

Because Ground Five of the Petition could be construed as encompassing an insufficiency of the evidence claim, the Court has independently reviewed the state court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.1997). The following is a summary of the evidence presented at trial.

On July 19, 2002, friends and roommates Giovanni Carboni and Fernando Lozano, Jr., drove to Olvera Street in downtown Los Angeles to have brunch. They arrived around 1:00 that afternoon and stayed until 2:30 or 3:00 p.m., at which time they headed home. Carboni had one beer and Lozano had three margaritas. Carboni was driving his tan 1992 Ford Explorer. He headed northeast from downtown on Broadway, electing not to take the freeway to avoid traffic. He turned north on Lincoln Park Avenue and then turned on North Flora Avenue. He found himself in an unfamiliar neighborhood and mistakenly turned south, instead of north, on Sierra Street. (See 2 RT 910-18, 923, 938-39, 974).

Traffic was moving slowly on the narrow street, and Carboni saw petitioner (whom he identified in court) driving northbound on Sierra Street. No one was in the car with petitioner. {See 2 RT 918-21, 923, 990, 1044-45). As the two cars passed each other, petitioner yelled “What up [sic], fool?” to Carboni. Carboni characterized petitioner’s attitude as if “he wanted to confront us or start something with us, start problems.” Carboni was uncomfortable and said nothing. Lozano, however, yelled the same question back. (See 2 RT 924-25). • Carboni “got nervous” and decided to make a U-turn. He had seen petitioner turn left onto Flora Avenue and felt that petitioner was trying to catch up to them. He was afraid that petitioner “would do something.” (See 2 RT 925-26).

Looking in the rear-view mirror, Carboni saw petitioner behind him, also traveling northbound on Sierra, “speeding” towards his car. Carboni kept driving, and petitioner pulled up along his left side. There was little traffic. Carboni slowed down because he did not want petitioner to chase them. He did not recall coming to a stop and did not believe petitioner’s car came to a stop either. He thought petitioner was a “gangster” based on his attire and shaved head. (See 2 RT 926-29, 994-95). Neither Carboni nor Lozano had any gang affiliations, nor any gang tattoos. (See 2 RT 925; 4 RT 1917). Petitioner then yelled “Where are you from?” The two cars were only a couple of feet apart, and the windows on each were rolled down. Carboni replied that he wasn’t from any gang, and he wasn’t from around the area. Petitioner said, “Then what the fuck are you looking at?” Carboni replied, “I am not even looking at you.” Then Lozano yelled, “At your ugly fucking face.” In response, petitioner immediately pulled a gun from his lap and shot two or three times at Carboni’s car. Carboni described petitioner’s gun as a small “black revolver.” (See 2 RT 929-31, 940, 994, 999, 1001).

Carboni testified that he “saw a gun come out.” Petitioner extended his arm and pointed the gun directly at Carboni. (See 2 RT 932, 1000). Carboni raised his arms and leaned back into his seat as far as he could. As the shots were being fired, he saw glass shatter to his left. None of the windows on his car were broken during the incident. His car was struck in the driver’s door, but Carboni was not hit. He did receive “marks on his left arm” that he described as looking like “specks of blood under the skin.” (See 2 RT 933-36, 949, 1002). The gunshot residue testing of his hands was inconclusive. (See 3 RT 1525-26).

Petitioner sped off, and Carboni followed in order to get his license plate number. Carboni thought petitioner’s car was an old grayish Honda. Carboni followed petitioner for approximately a block until he could read the number, then he slowed down; petitioner continued driving rapidly northbound on Sierra. Carboni looked over at Lozano and discovered that he had been hit. Lozano was bleeding from the head, and his left arm and head were hanging down. Carboni tried to rouse him, then Carboni turned right and stopped the car. He could feel a pulse, so he tried to call 911 on his cell phone. He found he did not have any reception, so he ran to a nearby house and asked the woman occupant to call the police. (See 2 RT 935, 939-42, 944, 961,1018).

Lozano was pronounced dead at the scene where he sat in Carboni’s car after the police and paramedics arrived. This was near the intersection of Mercury Avenue and Sierra Street. (See 2 RT 942, 944). Lozano died from a gunshot wound to the head. He also had a gunshot wound to his left shoulder with an irregular entrance wound that indicated that the bullet had hit an intermediate target before reaching Lozano’s shoulder. This was consistent with having traveled through glass first. (See 3 RT 1538-41). The victim had alcohol in his blood, but no trace of any illegal substance was found. (See 3 RT 1550-52). Lozano had gunshot residue on his left hand, but not on his right. This might have come from proximity to a weapon when it was discharged (up to 14 feet) or from touching a surface that contained gunshot residue. (See 3 RT 1282-85, 1294). Lozano was right-handed. (See 3 RT 1505,1513).

Neither Carboni nor Lozano was wearing a shirt at the time. It was a very hot day and both men had taken their shirts off at some point during the afternoon. Carboni had left his on the back seat of his car. (See 2 RT 933, 975-76, 1015). Carboni denied having a gun or using a gun. He denied that Lozano had ever used guns and testified that neither he nor Lozano had ever practiced target shooting. (See 2 RT 950). Lozano had a round Aztec calendar tattooed on his upper arm just below the shoulder. Carboni had two tattoos: a black star below the elbow on the inside of his left forearm and the symbol for Aquarius on his back. (See 2 RT 976-79). At the time of the incident, Carboni had a shaved head and a full beard. Lozano had a full head of hair, a beard, and a mustache. (See 2 RT 979-80).

Carboni identified photographs of an Acura as the car that petitioner was driving during the incident. (See 2 RT 951-52). The license plate number that Carboni gave to the police was 2JTG643. (See 2 RT 939, 952-53). A few hours after the incident, he wrote a 2-page account of the incident in his own handwriting at the request of a police officer. (See 2 RT 953, 956-57).

Carboni testified that he told the police that petitioner had “pockmarks on the face,” was Hispanic, between 20 and 30, and was wearing a short-sleeved, white T-shirt. (See 2 RT 960-61). Carboni later identified petitioner in a photographic lineup and again in court. (See 2 RT 923, 961-64, 1044-45; 3 RT 1234-38). He had never met petitioner before the incident. (See 2 RT 964-65).

During cross-examination, Carboni testified that he had been to Olvera street hundreds of times in his life and was familiar with the area. He did not necessarily take the freeway to get there or to return home. But he had never been in the general area where the incident took place. (See 2 RT 968-70). Carboni agreed that it was possible that Lozano’s words sounded like “fighting words.” Carboni told the police after the incident that Lozano had yelled the words, that Carboni thought Lozano “was being a little violent,” and that Lozano had had too much to drink. (See 2 RT 995-97). Carboni was not looking at Lozano and did not know if Lozano made any gestures during the incident. (See 2 RT 997-98).

Dion Jones, who was 11 at the time of the incident, lived in the area of Sierra and Mercury. On July 19, 2002, he was walking to the store, going south on Sierra towards Flora on the east side of the street. He saw two cars, one of which he recognized as an Explorer. The cars were coming towards him, and the Explorer was in its own lane. There were two people in the Explorer. He had seen the other car (which he described to the police after-wards as a light blue or purple Mazda or Nissan) in the neighborhood once before the incident. (See 2 RT 1049-50, 1052-55). Jones thought that both cars were stopped. The bluish car was going in the same direction, and was next to the Explorer. He could hear voices, but he could not hear what was being said. Then he heard two gunshots; he could not tell from which car they originated. He did not see a gun in either car, and he did not see the men in the Explorer throw anything from their car. Jones saw the passenger in the Explorer grab his head immediately after the gunshots. The other car then drove off very quickly, and the Explorer followed more slowly. (See 2 RT 1055-58, 1063, 1077-78).

In court, Jones testified that he did not recall seeing the driver of the second car. He did recall looking at photographs the police showed him, and he recalled identifying one of the men in the photographs. He agreed that he had written on the photo identification report that: “Picture 2 looks like the person in the car that shot at the guys in the gold Explorer. He looks like the guy up the street.” He had identified petitioner as the person who was the shooter before he said that he knew him from the neighborhood. (See 2 RT 1058-61, 1083; 4 RT 1876, 1911). Jones testified that the man he identified in the photograph “hangs out at the street,” right across from a school at Mercury and Sierra. (See 2 RT 1061-62). Jones told the police that he had seen petitioner the day before the shooting at that intersection. (See 2 RT 1062). He also had seen petitioner in the car in the neighborhood about three days before the shooting. (See 2 RT 1083). Jones saw a tattoo on the shooter’s left arm; the shooter was wearing a short-sleeved shirt. (See 2 RT 1066). But he admitted during cross-examination that he was confused about the arms and testified that the tattoo he had seen was on the shooter’s right arm. (See 2 RT 1076-77).

Jones testified that he was nervous to be in court and had asked that his grandmother sit next to him while he testified. (See 2 RT 1048, 1050, 1067). The prosecutor described his posture as sitting facing towards the jury with his left hand by his face, covering his eyes. Jones denied that he was afraid to look around the courtroom. But he admitted that he was afraid of what might happen. He denied that he had talked to his aunt about the case “in a long time.” He denied that his aunt was upset about the prospect of his testifying and stated that she was only mad because he was being taken out of school. He again denied that he was afraid to identify the shooter in court, but he admitted that it was hard for him to testify. (See 2 RT 1068-72). Finally, Jones agreed that he saw the man he previously had identified in the photographs in court, and he pointed out petitioner. (See 2 RT 1072-73).

When the prosecutor showed Jones photographs of petitioner’s car, Jones initially testified that he did not remember if it was the same car, but then he testified that “[t]he rims look different.” He agreed that it was the same size, and that the ear the shooter was driving had four doors. He thought that the car he had seen was a bit lighter in color than the one in the photographs. (See 2 RT 1085-87).

Officer Alvarez, who interviewed Jones at about 5:00 p.m. on the day of the incident, testified that Jones described the suspect as a male Hispanic, 20 to 30, bald, light complexion, blue shirt, with a tattoo on his left arm. (See 3 RT 1521-23).

Police Officer Pavel Gomez was the first officer to report to the scene after receiving a call about a shooting victim. He and his partner responded to the intersection of Sierra and Mercury, which he knew from his experience with the Gang Unit to be within the geographic area of the Happy Valley Gang. He was flagged down by Carboni who “looked panicked” and said his friend had been shot. The victim was sitting in the front passenger seat of Carboni’s vehicle; he was not breathing and had gunshot wounds to the left side of his head and his left shoulder. No firearms were in the car and the officer did not observe anything at the scene or in the area that indicated that Carboni or the victim had had any firearms. (See 3 RT 1203-07). He accompanied Carboni to the location where Carboni thought the shooting had taken place, about two or three blocks down Sierra, and cordoned off the area. The officer did not find any type of weapon, expended ammunition, or broken glass. (See 3 RT 1208, 1214, 1217-18, 1220). No evidence was found during the investigation that Carboni or Lozano had a gun. (See 4 RT 1921).

Officer Gomez testified that Carboni described the shooter as a male Hispanic, 18-25, wearing a white T-shirt, with a shaved head and acne on his face. Carboni described the car as an 80s to 90s grey Honda Civic. (See 3 RT 1213).

Officer James Kesser testified that he heard the radio call about the shooting and responded about 3:30 p.m. to Mercury and Sierra. He was provided with a description of the suspect, and he had returned to the police station. He knew the neighborhood to be within the territory of the Happy Valley Gang. He reviewed the “Happy Valley Gang book,” and obtained two names of possible suspects based on Carboni’s description of noticeable pock marks on the man’s face. One of the men was petitioner. He also located a third possible suspect from the Cal Gangs computer system. He assembled three six-packs with the suspects’ photographs. He placed petitioner’s photograph in location two on one of the six-packs. (See 2 RT 1231-38).

Nathan Gross, a criminologist with the Los Angeles Police Department (“LAPD”), testified that he recovered a lead projectile from inside the door of Carboni’s Explorer, and he examined two fragments that were recovered from the body of Lozano. He could not determine if the three fragments came from two or three bullets. They were consistent with a .22 caliber bullet. (See 3 RT 1248, 1251-55, 1264). Another criminologist also examined a blue, four-door 1990 Acura Legend that had been impounded. The car appeared to have been cleaned on the inside, but was dirty on the outside. The small, right rear “opera” window on the passenger side had been broken. (See 3 RT 1259-60).

Gross also testified that, when a firearm is discharged close to an individual, gunshot residue can cause injury to the skin to around two feet in front of the muzzle. The injury, called stippling, would appear like red dots on the skin. Stippling could also be caused by glass broken by a bullet. In addition, gunshot residue might be deposited on the intended target of a shooting. (See 3 RT 1261-63,1266,1268).

Detective Cynthia Juarez was placed in charge of the investigation of Lozano’s murder on the day of the incident. She obtained the license plate information that Carboni had obtained. After conducting various computer checks with different combinations of the letters and numbers Carboni had reported, she identified a blue Acura with a plate of 2TJG465. The car was linked to petitioner because he had earlier received a citation while driving the vehicle. (See 4 RT 1827, 1875-76). In addition, Detective Cortinas told Juarez that she had photographed the vehicle on August 3, 2002, on the corner of Sierra Street and Mercury Avenue. (See 4 RT 1877-79).

Sergeant John Zumwalt testified that he made a traffic stop on a dark blue, Acura Legend with the license plate 2TJG465 on August 7, 2002, in the City of Covina. The interior was exceptionally clean, but the small passenger window in the rear was “smashed out.” It still contained small glass fragments along the bottom edge. One of the two men in the car, Richard Ortega, told him that he was a gang member from Glassell Park in Los Angeles. Sergeant Zumwalt determined that the car was listed as having been involved in a murder case, and he impounded the car. DMV records indicated that the registration on the car had been transferred to Ortega on August 2, 2002, from Romerio Rojas. Petitioner’s name was not listed in the DMV records as an owner of the Acura. (See 4 RT 1560-73,1914).

Richard Ortega testified that he did not know petitioner, and that he had never seen him before coming to court. He obtained the Acura in early August. He testified that he informed Detective Juarez when she questioned- him that he did not want to talk unless he had a lawyer and that he had obtained the car from the guy listed on the pink slip. He denied telling her that he got it from a “homie.” He registered the car the day he got it. He claimed that the window was broken when someone tried to break into the car. He also testified that he bought new rims for the car. He admitted that, at the time of the traffic stop, he was a member of the Glassell Park gang, which was two to three miles from the territory of Happy Valley. (See 4 RT 1848-53,1862-66).

Detective Cynthia Juarez testified that she interviewed Ortega about the Acura and he told her that he had purchased the vehicle from a homie. (See 4 RT 1881-82).

Glendale Police Officer Tigran Topadzhikyan testified that he issued a traffic citation to petitioner on March 23, 2002 at 12:05 a.m. The vehicle petitioner was driving at that time was an older blue Acura, license plate 2TJG465. The officer recalled that the individual was “very distinctive looking” because of his pockmarked face and thin mustache. He identified petitioner as the person to whom he had issued the citation, and the officer identified the photograph of petitioner’s car as the vehicle he had stopped. (See 4 RT 1819-24).

Detective Juarez also testified that she interviewed Dion Jones after the incident on August 2, 2002, at his home, and then transported him to the station and conducted a videotaped interview with him. Jones was nervous and reluctant, and he told the Detective that he was afraid that something would happen to him. Juarez also talked to Jones’s aunt while' Jones was present. His aunt was very angry and upset, and she told Juarez that Jones did not want to remember anything. She said that she did not want Jones to testify. (See 4 RT 1827-29, 1833-35, 1873, 1912). Jones’s grandmother also told Juarez (when Jones was present) that Jones was very nervous and upset. She told the police office she wanted the family to be relocated. Juarez testified that there was no evidence that petitioner or anyone on his behalf had ever threatened Jones or his family. (See 4 RT 1873-74, 1912-13).

Raul Castro testified that he knew petitioner’s name, but he had never met him. He identified petitioner in court. He knew that petitioner went by the name of “Richie.” In 1989, Castro was dating petitioner’s cousin, Gina. On November 11, 1989, Castro was visiting Gina with a friend. They were standing outside her place, which was near Sierra and Flora, talking to her when he noticed a man riding around on a bicycle, looking at them. Gina told them that they should leave before something happened. Castro saw petitioner “throw gang signs” and “flash” a gun at them. (See 4 RT 2117-20, 2124, 2128). Castro and his friend drove away, and Castro saw petitioner point a gun at them. (See 4 RT 2123). Petitioner then fired three or four shots at the departing car. Castro’s friend drove to the corner of Lincoln Heights Avenue and Flora and found a police officer writing a ticket. They told the police officers about the incident. Castro was positive that it was petitioner who had shot at them that day. (See 4 RT 2124-25). Castro denied that he was ever a member of a gang, but he testified that he had had family members who were in gangs. At the time he testified, he worked as a mechanical engineer at a major hospital. (See 4 RT 2125-26).

Retired Los Angeles Police Officer Bruce Spradling testified that, before he retired, he had investigated Castro’s complaint against petitioner in 1989 as an assault with a deadly weapon. The victims identified petitioner from his highsehool yearbook photograph. Officer Spradling identified petitioner in court as the man he had arrested in 1989. He testified that he recalled petitioner’s pockmarked facial features and the tattoos on his hand. (See 4 RT 1924-28). Spradling made a written statement from two interviews he conducted with petitioner and then had petitioner sign the statement. In the statement, petitioner stated that he was in the area of Flora and Sierra visiting his old neighborhood. He saw a guy named Raul at his cousin’s house. He and Raul had had words a few months earlier and he thought that Raul was “putting [his] neighborhood down.” Petitioner had a 357 Magnum revolver, and he borrowed a bicycle from a kid on the street. He waited for Raul to leave his cousin’s house. As Raul and his friend drove by, he “fired four shots at the ear.” He sold the gun to a guy at Sierra and Mercury before he left the area the next morning. (See 4 RT 1928-32). At the time that petitioner signed the statement, he was under arrest for a felony. (See 4 RT 1934-35).

Detective William Eagleson testified as a gang expert. He testified that he was familiar with the Happy Valley Gang, and its territory included Sierra Street near Mercury. In 2002, the LAPD was tracking approximately 10 to 24 of its active gang members. The Happy Valley Gang had been a long-established gang for decades, and it had a reputation for creating an atmosphere of fear and intimidation within the community. He testified that the gang was very territorial. Anyone coming into their territory was “subject to being hit up.” It was a generational gang, where gang members had brothers, uncles and other relatives in the gang. There was also a “long standing tradition of families that had moved out, but would still come back to be part of the neighborhood”. (See 4 RT 2133-34, 2137-42, 2150, 2182). Detective Eagleson testified that, if an outsider comes into the gang’s territory and insults a gang member, “he’s gonna [sic] be killed.” He emphasized how important it is for a gang member to instill fear and intimidation in their neighborhood. Disrespecting a gang member on his own territory would result in extreme violence, including murder. (See 4 RT 2157-58).

Detective Eagleson testified that he knew petitioner as a member of Happy Valley Gang since about 1987 based on petitioner having admitted his affiliation to the Detective and to other police officers, various field identification records, and an arrest report. He was aware that petitioner had numerous tattoos with his gang name and moniker, including a large one on his right arm from the elbow to the shoulder and one on his right wrist. (See 4 RT 2170-76). Eagleson also testified that the scarring on both of petitioner’s cheeks was something that was unique and would be noted in the field identification reports. (See 4 RT 2178-79). Eagleson testified that a field identification card had been filled out on petitioner from July 7, 2002. The card indicated that petitioner had been stopped and questioned by police officers at approximately 10:25 p.m. on Sierra, north of Flora, within the territory of Happy Valley. Petitioner claimed at the time of that stop to have been with the gang for 16 years. (See 4 RT 2179-81). Eagleson knew that petitioner’s brothers were members of the Happy Valley Gang, despite the fact that the family had moved out of the neighborhood. Only one older brother had broken completely away. (See 4 RT 2182-83). Other field identification cards for petitioner indicated that he continued to return to the neighborhood of his gang, particularly in the area of Flora and Sierra, which was “ground zero” for Happy Valley. (See 4 RT 2212-15).

Detective Eagleson testified that the phrase “What’s up fool?” is a confrontational phrase asking “what are you doing here?” To repeat the phrase to a gang member is a sign of disrespect. The question, “Where are you from?” is “one of the most confrontational phrases” a gang member would use. It is usually followed by violent action. (See 4 RT 2186-89).

The defense presented no evidence.

PETITIONER’S CLAIMS HEREIN

1. The trial court erred in admitting other crimes evidence, thus depriving petitioner of a fair trial and constitutional due process. (See Pet. at 5, Exh. A(l); Trav. at 15-16; Supp. Trav. at 4-9).

2. Petitioner’s Sixth and Fourteenth Amendment rights were denied when he was denied the opportunity to develop impeaching evidence against a belatedly-disclosed witness. (See Pet. at 5, Exh. A(l); Trav. at 16-17).

3. The trial court erred in allowing the prosecutor to bring in “double hearsay evidence” to show that prosecution witness Dion Jones was afraid to testify, especially because no threats had been made. (See Pet. at Exh. A(l); Trav. at 17-18).

4. Petitioner was denied his constitutional right to a jury trial when the trial court refused to give manslaughter instructions. (See Pet. at 6, Exh. A(l); Trav. at 18-20).

5. The verdict of guilty of attempted murder must be reversed because CALJIC No. 8.66.1 allowed the jurors to convict petitioner of the attempted murder of Carboni based solely on petitioner’s act of shooting directly at Lozano. (See Pet. at Exh. A(l); Trav. at 20-21).

6. The trial court erred in instructing the jury with CALJIC Nos. 2.71 and 2.72 because petitioner made no admissions regarding the charged offenses. (See Pet. at Exh. A(l); Trav. at 21).

7. Cumulative error in this close case deprived petitioner of a fair trial and constituted a miscarriage of justice. (See Pet. at Exh. A(2); Trav. at 21-22).

8. The sentence enhancements imposed on counts 1 & 2 should have been stricken, not stayed. (See Pet. at Exh. A(2); Trav. at 22-23).

9. The upper term imposed on count 2 and the consecutive terms imposed on all four counts based on the court’s factual findings violated petitioner’s right to a jury trial under the Sixth Amendment. (See Pet. at Exh. A(2); Trav. at 4-6).

STANDARD OF REVIEW

The standard of review applicable to petitioner’s claim herein is set forth in 28 U.S.C. § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.”

Under the AEDPA, the “clearly established Federal law” that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Smith v. Patrick, 508 F.3d 1256, 1260 (9th Cir.2007).

Although a particular state court decision may be both “contrary to” and “an unreasonable application of’ controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413, 120 S.Ct. 1495. A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” Williams, 529 U.S. at 406, 120 S.Ct. 1495. However, the state court need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early, 537 U.S. at 8, 123 S.Ct. 362.

State court decisions that are not “contrary to” Supreme Court law may only be set aside on federal habeas review “if they are not merely erroneous, but ‘an unreasonable application’ of clearly established federal law, or are based on ‘an unreasonable determination of the facts.’ ” Early, 537 U.S. at 11, 123 S.Ct. 362 (citing 28 U.S.C. § 2254(d) and adding emphasis). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413, 120 S.Ct. 1495 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that the state court’s application of Supreme Court law was “objectively unreasonable.” Visciotti, 537 U.S. at 24-27, 123 S.Ct. 357; Williams, 529 U.S. at 413, 120 S.Ct. 1495. An “unreasonable application” is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10, 120 S.Ct. 1495; see also Visciotti, 537 U.S. at 25,123 S.Ct. 357; Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

DISCUSSION

A. Habeas relief is not warranted with respect to petitioner’s claim arising out of the admission of other crimes evidence.

Prior to trial, the prosecution sought to introduce evidence concerning petitioner’s 1989 conviction for negligent discharge of a firearm. Defense counsel objected that the conviction was too remote in time and, in addition, was distinct in character. Counsel argued that the prior conviction arose from a personal matter in which the person shot at by petitioner was involved in a relationship with petitioner’s cousin, whereas the present crime involved a territorial gang challenge in which the victims were unknown to petitioner. The prosecutor argued that the incidents were very similar in that: in each case, petitioner either waited for or returned to confront his chosen victims; in each case petitioner perceived that the conduct of the victims insulted his gang and insulted him in his gang’s territory; in each case he fired multiple shots from a handgun at two victims in a car; in each case he disposed of the weapon afterward; and the two incidents occurred within a block or so of each other in petitioner’s gang territory. (See 2 RT 601-10).

The trial court overruled the defense objections, finding that the evidence was sufficiently similar to be relevant for purposes of motive, intent, and common scheme or plan. The court noted that one of the similarities was, according to petitioner’s own signed account of the 1989 incident, that the motive in the earlier case was that a victim made derogatory comments about petitioner and petitioner’s neighborhood. In the present case, the victim made “rather minor personal insults” to petitioner. In each case, the perceived insults resulted in petitioner’s use of deadly force with a handgun against the occupants of a motor vehicle within petitioner’s gang territory. Further, the trial court found that the time between the incidents only slightly mitigated against admissibility, and it did not outweigh the fact that the occurrences were very similar and were completely independent. In addition, despite the fact that petitioner was only convicted of negligent discharge of a firearm in 1989, he had originally been charged with assault with a deadly weapon, and he served a substantial prison term. Accordingly, the trial court found that probative value of the evidence outweighed any prejudice. (See 2 RT 610-15).

Later, the jury expressly was instructed that the evidence of petitioner’s prior criminal conduct could not be considered “to prove that the defendant is a person of bad character or that he has a disposition to commit crimes,” but rather could be considered “only for the limited purpose of determining if it tends to show .. [a] characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in [tjhis case which would further tend to show the existence of the intent which is a necessary element of the crime charged; or [a] motive for the commission of the crime charged.” The jury further was instructed that it was “not permitted to consider such evidence for any other purpose.” (See CT 160; 4 RT 2431-32).

Petitioner claims that the trial court erred in admitting other crimes evidence, thus depriving petitioner of a fair trial and constitutional due process. He contends that evidence of his prior crime was inadmissible to prove intent, motive, or common plan or scheme. Because the prior crime to which he pleaded guilty, California Penal Code § 246.3 (negligent discharge of a firearm), is a general intent crime, he contends that the prior crime should not have been admitted to prove his intent to kill with respect to the charged crimes. Further, petitioner contends that the jury may have tended to believe that he was guilty merely because he was a person likely to commit such crimes. (See Pet. at 5, Exh. A(l); Trav. at 15-16; Supp. Trav. at 4-9).

1. This claim is not unexhausted.

Preliminarily, the Court will address respondent’s contention that this claim is unexhausted. (See Ans. at 2; Ans. Mem. at 26-28).

Exhaustion requires that the prisoner’s contentions be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935, 115 S.Ct. 333, 130 L.Ed.2d 291 (1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir.1979). A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir.1996).

Respondent contends that Ground One of the Petition is unexhausted because, when petitioner made a similar claim on direct appeal, the Court of Appeal declined to address petitioner’s claim of federal constitutional error on the ground that it had only been perfunctorily asserted. (See Ans. Mem. at 26-27). The Court disagrees that the claim is unexhausted. The issue is whether petitioner fairly presented his claim to the California Supreme Court and whether the California Supreme Court disposed of the claim on the merits. As noted above, in filing the Petition for Review, petitioner’s appellate counsel expressly invoked former Rule 33.3 of the California Rules of Court. Former Rule 33.3 (subsequently renumbered as Rule 8.508) provided for the filing of an abbreviated petition for review in the California Supreme Court, following the decision by the Court of Appeal in a criminal case, for the sole purpose of exhausting state remedies before presenting a claim for federal habeas corpus relief. Under former Rule 33.3, it was not necessary for petitioner to brief all of his claims. Rather, petitioner needed only to include in the petition “a brief statement of the factual and legal bases of the claim.” See former Rule 33.3(b)(3)(C). In the Court’s view, petitioner complied with this requirement by setting forth the factual and legal basis for his claim arising out of the admission of other crimes evidence in Section I of his Petition for Review. (See Lodged Doc. # 7 at 5-6). Further, the California Supreme Court’s summary denial of the Petition for Review constituted a disposition on the merits of the claims raised therein for purposes of federal habeas review. See Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993)

2. This claim is not procedurally defaulted.

The Court also disagrees with respondent’s contention that this claim is procedurally defaulted because the Court of Appeal stated that it was declining to address this claim since it had only been perfunctorily asserted in the heading. (See Ans. at 2; Ans. Mem. at 27-28; Lodged Doc. # 6 at 16-17). In citing former Rule 28(c) (1) (subsequently renumbered as Rule 8.500(c)(1)) and cases applying that rule as the basis for the purported procedural default, respondent is conflating the issue of whether petitioner’s claim was timely raised before the Court of Appeal (which former Rule 28(c)(1) provided was normally a prerequisite to consideration by the California Supreme Court) with the issue of whether the claim was properly raised before the Court of Appeal. The Court further notes in this regard that in neither of the California Supreme Court cases cited by respondent (People v. Turner, 8 Cal.4th 137, 32 Cal.Rptr.2d 762, 878 P.2d 521 (1994) and People v. Hardy, 2 Cal.4th 86, 150, 5 Cal.Rptr.2d 796, 825 P.2d 781 (1992)) did the California Supreme Court state that the Court of Appeal’s rejection of a claim for having only been perfunctorily asserted constituted a state procedural bar that precluded the California Supreme Court’s consideration of the claim.

3. In any event, this evidentiary error claim fails on the merits.

To the extent that petitioner is claiming that the trial court should have excluded the evidence concerning his prior conviction as a matter of state evidentiary law, his claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (reiterating that “it is not the province of a federal habeas court to reexamine state court determinations on state law questions”); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991) (federal habeas courts “do not review questions of state evidence law”). “Habeas relief is available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process.” Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir.1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994); see also Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir.1998); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.1995).

Here, the Court concurs with the reasoning of the California Court of Appeal that evidence pertaining to the facts of the prior conviction was relevant to the jury’s evaluation of petitioner’s intent and motive, and that the strikingly common features between the charged crimes and the 1989 offense, together with the testimony of the gang expert concerning the violent and territorial character of petitioner’s gang, were relevant to the prosecution’s theoiy that petitioner “believed that deadly force was not merely justified but necessary in response to an incursion into his gang’s territory.” (See Lodged Doc. # 6 at 14-15).

Moreover, the Court finds that petitioner’s reliance on People v. Scheer, 68 Cal.App.4th 1009, 1019-20, 80 Cal.Rptr.2d 676 (1998) in support of this claim is misplaced. (See Trav. at 15-16; Supp. Trav. at 4-7). In Scheer, the defendant was charged with felony hit and run and vehicular manslaughter. The appellate court held that evidence that the defendant had previously been convicted of fleeing police officers was inadmissible to show intent because intent was not an element of the charged crime of felony hit and run (a general intent crime), and the evidence of the prior conviction was inadmissible to show motive because there was no “nexus or direct link between the commission of the prior misconduct and the charged crime.” See Scheer, 68 Cal.App.4th at 1019-20, 80 Cal.Rptr.2d 676. By way of contrast, in the instant case, intent was an element of the charged crimes of first degree murder and attempted murder, and the numerous commonalities between those charged crimes and the prior offense provided a basis for the jury to draw the inference that petitioner’s motive in both instances arose from his gang affiliation. Because the challenged evidence was thus relevant to issues in the case, its admission cannot be said to have violated due process. See McGuire, 502 U.S. at 70, 112 S.Ct. 475; Jammal, 926 F.2d at 920 (“Only if there are no permissible inferences the jury can draw from the evidence can its admission violate due process.”); McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.) (as amended), cert. denied, 510 U.S. 1020, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993).

Further, to the extent that petitioner is claiming that the evidence impermissibly permitted the jury to infer that he was a bad person likely to commit the charged crimes, the Court notes that the Supreme Court has never held that the admission of propensity evidence violates due process. See McGuire, 502 U.S. at 75 n. 5, 112 S.Ct. 475 (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crime’ evidence to show propensity to commit a charged crime.”); Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir.2006) (declining to declare a constitutional principle relating to the propriety of admitting propensity evidence clearly established where the Supreme Court “had expressly concluded the issue was an ‘open question’ ”). Moreover, the jury here was expressly instructed not to consider the evidence of petitioner’s prior criminal conduct to prove that petitioner was a person of bad character or that he had a disposition to commit crimes or for any purpose other than the limited purpose for which it was admitted. The Court is required to presume that the jury followed the instructions given unless there is admissible evidence to the contrary. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir.2006). Petitioner has failed to adduce any evidence showing the jury failed to follow the instructions it was given.

The Court therefore finds and concludes that the state courts’ rejection of this evidentiary error claim neither was contrary to nor involved an unreasonable application of clearly established Supreme Court law.

B. Habeas relief is not wairanted with respect to petitioner’s claim that he was denied the opportunity to develop impeaching evidence against a belatedly-disclosed witness.

Petitioner claims that his Sixth and Fourteenth Amendment rights were denied when he was denied the opportunity to develop impeaching evidence against a belatedly-disclosed witness. {See Pet. at 5, Exh. A(l); Trav. at 16-17). Petitioner contends that the prosecution failed to disclose a witness, Raul Castro, “until the last minute” and that the trial court’s refusal to grant petitioner a continuance to investigate Castro’s criminal record deprived petitioner of his constitutional rights. {See Trav. at 16-17).

1. The record below

On the morning of the fifth day of trial, December 29, 2003, the prosecutor provided the trial court and defense counsel with a rap sheet for prosecution witness Raul Castro, who was the victim in petitioner’s 1989 conviction. The court indicated that defense counsel might be entitled to prove two offenses against Castro, each of which was listed as an “arrest” on the rap sheet without a final disposition, but held that counsel would need to present evidence substantiating any conviction before he would be able to question the witness about the arrests. The first incident was an arrest and detention for robbery as a juvenile, and the second was an arrest for misdemeanor spousal battery. (4 RT 1801-03). Defense counsel informed the court that he would need time to investigate the potential impeachment matters and complained that he had not been provided with the rap sheet earlier. (4 RT 1803).

That afternoon, defense counsel reported that he had spoken with Castro, and that Castro had denied involvement with the robbery for which he was arrested and claimed that he was only getting a ride with friends at the time of his arrest. Castro claimed that he was detained for about two weeks and then released, with no further action. Similarly, Castro denied that he had battered his girlfriend and claimed that no charges were filed against him following that arrest. Defense counsel again complained that he had had no time in which to verify the claims of the witness. Counsel requested that, as a discovery sanction, the witness not be allowed to testify. The prosecutor explained that she had informed defense counsel the prior week that the witness had had a robbery arrest while he was a juvenile. The prosecutor further explained that she had not known she would be able to secure Castro as a witness until the prior week. The prosecutor then offered to continue the matter for a few days to permit defense counsel time to investigate the potential impeachment material. (4 RT 1905-07).

The trial court stated that it would not preclude Castro as a witness, but would consider a request for additional time. Defense counsel objected that it was difficult to obtain juvenile records on short notice and that he would need the information contained therein to investigate the earlier incident. He asserted that it would take weeks to properly investigate. The court stated that it was not willing to continue the matter for weeks to investigate a “14-year-old robbery case on a tangential issue.” (4 RT 1907-10).

The following morning, December 30, 2003, defense counsel again requested that Castro be precluded as a witness. Counsel informed the court that he had obtained the police report pertaining to Castro’s battery arrest. He asserted that it might take him weeks to contact Castro’s former girlfriend. He then requested a two-week continuance. The trial court ruled that, due to the age of the juvenile incident (despite its potential relevance to reflect on the honesty of the witness), the fact that the incident had never been adjudicated, and the need for the defense counsel to disprove Castro’s denial of any involvement in a robbery, the introduction of the robbery arrest would “necessitate the consumption of an undue amount of court time and would pose a significant danger of the jury confusing the issues.” The court explained that the request by the defense for time to investigate was “not the basis” of its ruling. Rather, the trial court stated that the matter had “very, very low probative value,” and indicated that, even if defense counsel had already located the witnesses, the court would not permit the defense to “conduct a mini trial on a 14-year-old robbery case where there [was] no conviction.” (4 RT 2101-08).

Further, the trial court found that the battery incident involved “assaultive conduct, which has a much, much lower probative value on the issue of credibility than a crime like robbery that involves dishonesty.” The court held that, while it might be admissible, since the battery charge also had never been adjudicated and the witness vehemently denied having committed the act, its admission would “necessitate a mini trial on the issue[,] would take an undue amount of time, [ ] and run a significant risk of confusing the issues that are properly before the jury.” (4 RT 2108-09). In addition, not only was Castro not a witness to the crimes charged, but the crime in which he was a victim was “substantially corroborated by the testimony” of another witness as well as by the signed statement of petitioner. The court excluded the evidence of Castro’s second arrest as well, again finding that “the danger of confusing the issues before the jury and [ ] the undue consumption of time substantially outweighs what I find to be a very, very minimal probative value of this evidence.” (4 RT 2109-10).

Finally, the trial court denied defense counsel’s request for a continuance on the grounds that, even if counsel had already brought the required witnesses into court, the court “would not find them to be admissible.” (4 RT 2110-11).

The prosecutor explained for the record that she had not been assigned to the case until December 2, 2003. Shortly thereafter, on December 10, 2003, she had given an updated witness list to the defense. Her investigator had only located Castro in December, and she had advised counsel that she would make Castro available for an interview. Because of the holidays, her investigating officer had been unable to provide the rap sheet for Castro until December 29, 2003, and she had immediately provided it to the defense. (4 RT 2111-12). Defense counsel did not object to the prosecutor’s recitation of these events, but he objected that the prior prosecutor assigned to the case had never indicated that there would be any impeachment material with respect to Castro. The prosecutor clarified that the defense had been provided with notice that petitioner’s prior crime against Castro would be used, as well as with information concerning the victims, in July. Defense counsel acknowledged that he had been provided with Castro’s name and the police report pertaining to petitioner’s earlier conviction prior to trial. (4 RT 2113-15).

2. The California Court of Appeal decision

In rejecting the corresponding claim when petitioner raised it on direct appeal, the California Court of Appeal reasoned as follows:

In the midst of trial, a trial court ordinarily has discretion to refuse a request for a continuance. We see no extraordinary circumstances here requiring a continuance. Having had notice that Castro was a potential trial witness since the prior July, [petitioner] never explained to the trial court why he did not earlier seek discovery of the contents of the witness’s rap sheet. [Petitioner] also never explained why he could not obtain Castro’s former girlfriend as a witness to the battery during the progress of the trial. Further, the trial court’s analysis of the potential significance of Castro’s impeachment was lengthy and complete. The trial court concluded that it was not reasonably likely that a continuance would result in any significant impeachment evidence. The record supports the trial court’s conclusion. [Petitioner] pled guilty to the 1989 shooting and admitted the shooting to the police, corroborating Castro’s claims that [petitioner] shot at him without provocation. Castro’s battery offense was of marginal significance as a crime of moral turpitude. Neither the robbery offense nor the misdemeanor battery had been adjudicated. Castro’s claims of innocence were corroborated by the lack of a prosecution [sic], and the trial court would have had to conduct minitrials to present the im peachment evidence. From Castro’s seemingly truthful explanation of the events of the claimed robbery and battery, it was highly unlikely that [petitioner] would have been able to develop useful impeachment evidence even with a continuance.

On this record, [petitioner] has not shown an abuse of discretion, or that [petitioner] was prevented from presenting material evidence in defense that was reasonably likely to have affected the outcome of his trial. (Lodged Doc. # 6 at 19-20 (internal footnote and citations omitted)).

3. Analysis

To the extent that petitioner is purporting to claim that the prosecution’s belated disclosure of Castro as a witness violated his constitutional rights, the Court finds that such a claim is belied by the record. The record reflects that the prosecution notified defense counsel months before trial that Castro was a potential witness and informed counsel of the possibility of impeachment evidence for the witness at least several days before Castro ultimately testified on December 30, 2008.

To the extent that petitioner is claiming that the trial court’s denial of his request for a continuance violated his constitutional rights, the Court notes that trial courts are accorded broad discretion on matters regarding continuances. See Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). The denial of a continuance constitutes an abuse of discretion when the trial court arbitrarily insists “upon expeditiousness in the face of a justifiable request for a delay.” Morris, 461 U.S. at 11-12, 103 S.Ct. 1610. In Armant v. Marquez, 772 F.2d 552, 556 (9th Cir.1985), the Ninth Circuit recited the four factors used to determine whether the trial court abused its discretion in denying a requested continuance: (1) the degree of diligence by the petitioner prior to seeking the continuance; (2) whether the continuance would have served a useful purpose; (3) whether the continuance would have inconvenienced the court or the prosecution; and (4) the amount of prejudice suffered by the petitioner. These factors are considered together, and the weight accorded any one factor depends on the circumstances of each case. “At a minimum, however, in order to succeed, the [petitioner] must show some prejudice resulting from the court’s denial.” See Armant, 772 F.2d at 556-57; see also Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir.1997) (petitioner must demonstrate that denial of continuance caused actual prejudice), cert. denied, 524 U.S. 917, 118 S.Ct. 2299, 141 L.Ed.2d 159 (1998).

Here, the Court concurs with the Court of Appeal that the trial court did not abuse its discretion in denying petitioner’s request for a continuance. First, petitioner failed to exercise diligence prior to seeking the continuance. He was on notice for months that Castro might testify, and he was aware for several days before Castro was called to testify that potential impeachment material existed. Petitioner has failed to show why he was unable to investigate the witness prior to seeking a continuance. Second, a continuance would not have served a useful purpose because the introduction of either of Castro’s arrests would have required that petitioner present witnesses whose testimony contradicted Cas