Studebaker v. Uribe (658 F. Supp. 2d 1102, 2009)

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

OTIS D. WRIGHT II, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has conducted a de novo review of the Petition, all of the records herein, and the Report and Recommendation of the United States Magistrate Judge. No objections to the Report and Recommendation have been filed. The Court approves and adopts the Magistrate Judge’s Report and Recommendation. Accordingly, IT IS ORDERED THAT:

1. Judgment shall be entered dismissing the action with prejudice.

2. The Clerk shall serve copies of this Order and the Judgment herein on the parties.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

FERNANDO M. OLGUIN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Otis D. Wright II, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On June 3, 2008, petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254. On September 26, 2008, respondent filed an Answer to the Petition (“Return”). On April 9, 2009, petitioner filed a Traverse to the Return (“Reply”).

Having reviewed the allegations in the Petition as well as the matters set forth in the record the Return and the Reply, it is recommended that the Petition be denied and the action dismissed with prejudice.

PRIOR PROCEEDINGS

On October 8 and 12, 2004, after a jury trial in the Orange County Superior Court (Case No. 03WF2364), petitioner was convicted of: (1) attempted murder (Cal.Penal Code §§ 187(a) & 664); (2) assault with a deadly weapon (Cal.Penal Code § 245(a)(1)); (3) unlawful taking of a vehicle (Cal. Vehicle Code § 10851(a)); and (4) street terrorism (Cal.Penal Code § 186.22(a)). (Clerk’s Transcript (“CT”) at 318, 321-22 & 432). The jury also found that petitioner committed the attempted murder and assault with a deadly weapon for the benefit of a criminal street gang (Cal.Penal Code § 186.22(b)(1)(A)) and committed the attempted murder with a deadly or dangerous weapon and with willful premeditation and deliberation (Cal.Penal Code §§ 12022(b)(1) & 664(a)). (Id. at 319, 433-34 & 436). On May 13, 2005, the trial court sentenced petitioner to an indeterminate term of 15 years to life plus a determinate term of six years and eight months in state prison. (Id. at 509-12).

Petitioner appealed to the California Court of Appeal. (CT at 507). In an unpublished opinion filed on January 31, 2007, 2007 WL 264301, the court of appeal affirmed the trial court’s judgment. (Lodgment No. 7 (“Opinion”) at 1, 2 & 23). Petitioner thereafter filed a petition for review in the California Supreme Court, which was denied on April 11, 2007, without comment or citation to authority. (Lodgment Nos. 8 & 9).

On June 29, 2007, petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court, which was denied on July 31, 2007. (Lodgment Nos. 10 & 11).

On June 3, 2008, petitioner filed the instant Petition.

SUMMARY OF FACTS

The facts underlying petitioner’s conviction are not in dispute in these proceedings. Accordingly, the court will quote directly from the California Court of Appeal’s statement of facts in its opinion affirming petitioner’s conviction.

[Petitioner] was an active member of “Public Enemy Number One,” (PENI) a white supremacist criminal street gang with a reputation for extreme violence. One Sunday, Francisco Espinoza, an immigrant from Nicaragua, drove his wife and two very young daughters in his car displaying a Nicaraguan flag decal Suddenly, [petitioner] emerged out of a side parking lot into the path of the Espinoza car, blocking it and forcing Espinoza to swerve quickly into the fast lane of the southbound traffic to avoid hitting [petitioner].

Espinoza regained control of ,his car and proceeded past the offending driver, shrugging his shoulders and lifting his palms up as if to inquire, “what is going on?” He then turned at an upcoming intersection as he originally planned. [Petitioner] suddenly sped up, went around Espinoza and cut him off as he entered the side street. Espinoza was forced to stop because [petitioner’s car completely blocked his own. He could see [petitioner] reaching down between the seats before emerging from his car and approaching Espinoza. Fearing that his wife and daughters were in danger, Espinoza got out of his car and attempted to lead [petitioner] away. As he approached Espinoza, [petitioner] had one hand behind his thigh. Suddenly, he lunged at Espinoza, slashing the man’s throat with a knife and severing a Star-of-David chain hanging there. [Petitioner] reached down, grabbed the Star-of-David and fled back to his car.

Espinoza yelled to have his wife call the police and ran after [petitioner], hoping to restrain him. As [petitioner] climbed into his ear, Espinoza tried pulling him out; he broke off his efforts when [petitioner] turned and again slashed at him with the knife.[]

Although getting dizzy from the loss of blood, Espinoza hurriedly returned to his car and attempted to follow [petitioner], but [petitioner] had already turned around at the end of the cul-de-sac, and was now driving directly at Espinoza’s car. [Petitioner] crashed his car into Espinoza’s vehicle, disabling it. But the collision also affected [petitioner]^ car, as his steering became unresponsive and he had to drive in reverse. When his car became fully dysfunctional, [petitioner] abandoned it and fled on foot.

Espinoza was bleeding extensively from his throat, and he needed immediate treatment as the gash was potentially fatal. The wound required extensive suturing, and it left a conspicuous scar and residual pain that Espinoza still suffered from at the time of trial.

Later that evening, [petitioner] visited a friend of his in Buena Park, departing in the night with the friend’s mother’s car. When the friend discovered he had left with her car, she phoned him and demanded he return it. He refused, keeping it for several weeks until abandoning it in the Lake Elsinore area near the home of a fellow PENI member. The authorities located [petitioner] in that home and arrested him, learning from him that he was en route to Mexico to avoid prosecution for the assault on Espinoza.

At trial, [petitioner] testified that Espinoza was the one who initiated the incident by cutting off [petitioner’s car. [Petitioner] became enraged over this and only responded in the manner he did because of Espinoza’s rudeness. He maintained that he never swung the knife until Espinoza attacked him in his own car, and he did so at that time to protect himself. He also denied stealing his friend’s car, saying instead that she had given him permission to take it.

(Opinion at 2-4).

PETITIONER’S CONTENTIONS

In his Petition, petitioner challenges his conviction and sentence, (Petition at 2), and raises the following claims for federal habeas relief:

1. Petitioner was prejudiced by the trial court’s failure to bifurcate the gang enhancement allegations from the other charges. (Petition at 5).

2. Petitioner’s rights were violated by the admission of his prior convictions. (Id.).

3. The trial court abused its discretion by permitting gang expert evidence without proper foundation. (Id. at 6).

4. There was insufficient evidence to support the street terrorism conviction and the gang enhancement finding. (Id.).

5. The trial court erred by failing to give a limiting instruction regarding the gang expert’s reliance on hearsay evidence. (Id.).

6. Petitioner was denied the effective assistance of trial counsel. (Id. at 6a).

7. The trial court coerced the attempted murder verdict by its remarks to the deadlocked jury. (Id at 6b).

DISCUSSION

I. STANDARD OF REVIEW.

A. AEDPA.

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214. Woodford v. Garceau, 538 U.S. 202, 204 & 207, 123 S.Ct. 1398, 1400 & 1402, 155 L.Ed.2d 363 (2003) (habeas application filed after AEDPA’s effective date of April 24, 1996, is reviewed under AEDPA). As explained by the Supreme Court, AEDPA “places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). The “highly deferential standard for evaluating state-court rulings [embodied in 28 U.S.C. § 2254(d)] demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks and citation omitted).

Under AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody “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 proceeding.” 28 U.S.C. § 2254(d). “[C]learly established Federal law, as determined by the Supreme Court of the United States,” within the meaning of 28 U.S.C. § 2254(d)(1), “refers to the holdings, as opposed to the dicta,” of the Supreme Court’s decisions as of the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S.Ct. at 1523; accord Lockyer v. Andrade (Andrade), 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). Ninth Circuit case law “may be persuasive authority for purposes of determining whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and also may help ... determine what law is ‘clearly established.’ ” Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999, as amended Jan. 10, 2000); accord Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), cert. denied, 540 U.S. 968, 124 S.Ct. 446, 157 L.Ed.2d 313 (2003), overruled in part on other grounds by Andrade, 538 U.S. 63, 123 S.Ct. 1166.

Section “2254(d) (l)’s ‘contrary to’ and ‘unreasonable application’ clauses have independent meaning.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, “a decision by a state court is ‘contrary to’ [the Supreme Court’s] clearly established law if it ‘applies a rule that contradicts the governing law set forth in [the Supreme Court’s] eases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. at 1519-20); accord Andrade, 538 U.S. at 73, 123 S.Ct. at 1173.

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court’s decisions but unreasonably applies that principle to the facts of [petitioner’s] case.” Williams, 529 U.S. at 413, 120 S.Ct. at 1523; Andrade, 538 U.S. at 75, 123 S.Ct. at 1174. A federal court making the “unreasonable application” inquiry asks “whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. at 1521. Although the Supreme Court has not provided a specific definition of “objectively unreasonable,” it has made clear that an unreasonable application of federal law is different from an incorrect application of federal law, explaining that “[u]nder § 2254(d)’s ‘unreasonable application’ clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.” Visciotti, 537 U.S. at 24-25, 123 S.Ct. at 360; accord Rice v. Collins, 546 U.S. 333, 342, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006); Williams, 529 U.S. at 411, 120 S.Ct. at 1522; Andrade, 538 U.S. at 75-76, 123 S.Ct. at 1175; Edwards v. Lamarque, 475 F.3d 1121, 1125 (9th Cir.) (en banc), cert. denied, 552 U.S. 1009, 128 S.Ct. 532, 169 L.Ed.2d 371 (2007). “The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous.” Andrade, 538 U.S. at 75, 123 S.Ct. at 1174. “Only if the evidence is ‘too powerful to conclude anything but’ the contrary should [the habeas court] grant relief.” Edwards, 475 F.3d at 1126 (quoting Miller-El v. Dretke (Miller-El 2), 545 U.S. 231, 265, 125 S.Ct. 2317, 2339, 162 L.Ed.2d 196 (2005)).

Under § 2254(d)(2), “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell (Miller-El 1), 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003). “Once the state court’s fact-finding process survives this intrinsic reviewf,] ... the state court’s findings are dressed in a presumption of correctness[ ]” and may be overturned only if new evidence presented for the first time in federal court “amounts to clear and convincing proof that the state-court finding is in error.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160 L.Ed.2d 605 (2004); see also 28 U.S.C. § 2254(e)(1); Kesser v. Cambra, 465 F.3d 351, 358 n. 1 (9th Cir.2006) (en banc) (clear and convincing proof required to rebut state court findings of fact with extrinsic evidence presented for the first time in the federal habeas court).

B. Application of AEDPA to the Present Case.

When applying AEDPA’s standards of review to a claim for habeas relief, a federal court looks to the “last reasoned decision” of a state court on that claim. Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir.) (en banc), cert. denied, 546 U.S. 1036, 126 S.Ct. 735, 163 L.Ed.2d 578 (2005); Forn v. Hornung, 343 F.3d 990, 995 (9th Cir.2003, as amended Sept. 24, 2003). In this case, petitioner raised his claims in his direct appeal before the California Court of Appeal, which denied the claims in a written, reasoned opinion. (See Opinion at 4-23). Thus, in addressing petitioner’s claims, the court will apply AED-PA’s deferential standards of review directly to the California Court of Appeal’s opinion. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000), cert. denied, 534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001).

II. GANG EVIDENCE.

A. Gang Expert Testimony.

In Ground Three, petitioner contends that the trial court erred in allowing the gang expert’s testimony without any evidence that the offenses were gang-related. (Lodgment No. 8 at 12-13). Petitioner acknowledges that he is a member of a criminal street gang, but argues that “the fact [petitioner] is a criminal gang member, without any other indication the offense was committed for the benefit of, in association with, or at the direction of a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members, does not provide a sufficient foundation to admit an expert’s opinion that an offense was committed for any of those reasons.” (Id. at 11).

1. The Court of Appeal’s Opinion.

In analyzing Ground Three, the court of appeal stated:

[Petitioner] contends the trial court erred when it permitted Huntington Beach Police Detective John Van Holt to give his expert opinion in the form of a hypothetical question as to whether the offenses were committed for the benefit of the criminal street gang. He argues the prosecution failed to provide a factual preliminary foundation for this opinion, noting there was nothing more than the expert’s opinion to indicate the crime was committed for the benefit of the white supremacist gang, PENI. We disagree.

[Petitioner] avers no evidence existed to establish the preliminary fact that “the offenses were committed with the specific intent to promote and benefit [PENI].” Without such a fact, the expert’s opinion on that point should have been excluded, he contends.

Before the trial commenced, the defense admitted that PENI was a criminal street gang, engaged in committing the enumerated offenses proscribed by section 186.22. [Petitioner] also admitted that he was, and had been a member of PENI. The defense then brought a motion to exclude prejudicial “profile” evidence as provided by a gang expert. In response, the court ordered the expert not to testify to “ ‘what a PENI gang member would do in these circumstances.’ I think he can render an opinion as to what possible range of responses [he] would [ ] expect a gang member to have in response to that, ...” (Italics added.) The defense motion, however, did not object to the expert testifying as to his hypothetical opinion on whether a crime, under the same facts as presented here, was committed for the benefit of PENI.

At trial, Van Holt testified that PENI formed in 1986 in Long Beach as a white supremacist gang. It became the predominant white racist gang in Orange County. Certain markers became symbols of, and for the gang, such as red shoelaces, swastikas, hand signs of the letter “P,” and tattoos of various violent symbols. Van Holt testified that the more violent a person was and the more crimes he would commit for the gang, the more respect he would gain within the gang. Moreover, the gang itself admitted only extremely violent people because only such persons would advance the gang’s cause of instilling fear and advocating racism. Finally, Van Holt knew that [petitioner] was a member of that gang with the moniker of “Trigger,” and he had seen photographs of [petitioner] in the company of other known PENI members and all of them were displaying the “P” hand sign. [Petitioner] also carried multiple tattoos, one of which had a hand pulling the trigger of a revolver, a swastika, and another having “Hate, Inc.[,]” which is an alternate name for PENI. He also carried an anarchy symbol tattooed on his left arm and an eight on his right arm which was code for the eighth letter, H, an abbreviation for Heil Hitler. Finally, Van Holt had seen training tapes in which a gang member commenced an attack on a victim by concealing a knife behind his thigh- — as had [petitioner] — until the assault could be completed. In Van Holt’s opinion, an attack such as the one on Espinoza, was one which “would promote, further or assist [the] criminal conduct” of PEN1.[]

When the relevance of evidence depends on the existence of a preliminary fact, that fact is sufficiently shown if the evidence is strong enough to support a favorable determination by the jury of that preliminary fact. Exclusion of the dependent evidence is only permitted if the “ ‘showing of preliminary facts is too weak to support a favorable determination by the jury.’ ... The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion.... ” (People v. Lucas (1995) 12 Cal.4th 415, 466, 48 Cal.Rptr.2d 525, 907 P.2d 373.) The sole limitation on this function is when the matter is one relevant to the ultimate issue in the case, and it is “the jury’s function to determine the effect and value of [such] evidence addressed to it.... The judge’s function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question .... ” (Id. at pp. 466-467 [48 Cal.Rptr.2d 525, 907 P.2d 373]; see also Evid.Code, § 403, subd. (a)(1).)

Therefore, the situation before us falls into this latter category as Van Holt’s opinion reflected one of the ultimate issues in the case: Whether the crime benefitted or advanced the PENI gang. In such a situation, the evidence is to be admitted if there is evidence sufficient to permit the jury to decide the question. [Petitioner] contends, as elicited on cross-examination of the expert, that any crime can only advance a gang if the gang member conspicuously announces his gang membership and gang purpose in the attack. At no time did [petitioner] ever reveal such information. Had [petitioner] attacked a rival gang member or someone who knew him and his gang status, the evidence may have been sufficient, he asserts. But Espinoza was a complete stranger to both [petitioner] and PENI. Thus, he concludes, there was a complete dearth of evidence to support Van Holt’s opinion.

“The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets [the] criterion [of being beyond common experience].” (People v. Gardeley (1996) 14 Cal.4th 605, 617 [59 Cal.Rptr.2d 356, 927 P.2d 713].) “Generally, an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’ ... Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]” (Id. at p. 618 [59 Cal.Rptr.2d 356, 927 P.2d 713].)

At no time did the expert state that criminal street gangs limit their criminal activities to those in which the media is alerted and Madison Avenue publicists delineate the credit to be accorded the product or service. Van Holt’s knowledge of PENI indicated the opposite: PENI gang members are extremely violent and do not require confrontations to ignite their violent responses. Their main focus is not to have a political or public or territorial agenda at all. That would be the province and characteristic of the “traditional skinhead gang” as distinct from the White supremacist gang such as PENI. Quite to the contrary, the White racist gang has as its main focus “street crime” and will unexpectedly and without warning lash out violently — especially to minorities— without saying anything or identifying themselves. The purpose is to enhance their violent reputation within their own group. It would be consistent with PENI culture to strike out without warning to a perceived act or comment of disrespect by another whether or not that person intended to be disrespectful, such as shrugging one’s shoulders while lifting his or her hands as if to say, “what’s going on?” Finally, [petitioner] declared his animosity for “Mexicans, Blacks or Jews” to his girlfriend’s mother. Under these circumstances, sufficient evidence existed to establish the preliminary fact necessary for Van Holt’s opinion, irrespective of the lack of publicizing information that [petitioner] was a PENI member.

[Petitioner] concedes that a proper foundation is laid for an expert’s opinion when the object of that opinion is to inform the jury as to “the animosity between gangs or what gangs would do. if disrespected, ...” (Italics added; cf. People v. Gamez (1991) 235 Cal.App.3d 957, 964-966 [286 Cal.Rptr. 894].) That latter issue is what Van Holt discussed in his expert opinion, and did quite properly, with a full foundation laid.

(Opinion at 9-12).

2. Applicable Federal Law.

The United States Supreme Court has clearly limited federal courts reviewing petitions for habeas relief to claims based upon federal questions: “it is not the province of the federal habeas court to reexamine state court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire (McGuire), 502 U.S. 62, 68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Therefore, as a general rule, federal courts may not review a trial court’s evidentiary rulings. Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) (“We acknowledge also our traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts.”); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.1999), cert. denied, 528 U.S. 1198, 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir.1998). A state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it is so fundamentally unfair as to violate due process. Dillard v. Roe, 244 F.3d 758, 766 (9th Cir.2001, as amended May 17, 2001), cert. denied, 534 U.S. 905, 122 S.Ct. 238, 151 L.Ed.2d 172 (2001); Henry, 197 F.3d at 1031; Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir.1999), cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d 461 (2000); see also Windham, 163 F.3d at 1103 (The federal court’s “role is limited to determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process.”).

“A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.), amended on other grounds by 421 F.3d 1154 (9th Cir.2005). Put simply, admission of evidence violates due process only if there is no permissible inference the trier of fact can draw from it. Id.; Houston v. Roe, 177 F.3d 901, 910 n. 6 (9th Cir.1999), cert. denied, 528 U.S. 1159, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991).

Finally, with regard to expert testimony, the Ninth Circuit has noted that it has found no cases “supporting] the general proposition that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact.” Moses v. Payne, 555 F.3d 742, 761 (9th Cir.2009, as amended Jan. 30, 2009); accord Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir.2009). “Although ‘[a] witness is not permitted to give a direct opinion about the defendant’s guilt or innocence, ... an expert may otherwise testify regarding an ultimate issue to be resolved by the trier of fact.’ ” Moses, 555 F.3d at 761 (alterations in original) (quoting United States v. Lockett, 919 F.2d 585, 590 (9th Cir.1990)); see also People v. Torres, 33 Cal.App.4th 37, 46-47, 39 Cal.Rptr.2d 103 (1995) (While “a witness cannot express an opinion concerning the guilt or innocence of the defendant[,] ... [o]pinion testimony often goes to the ultimate issue in the case.”).

3. Analysis.

Under California law, an expert may offer opinion testimony “[r]elated to a subject that is sufficiently beyond common experience that ... would assist the trier of fact[.]” Cal. Evid.Code § 801(a). “[T]he culture and habits of criminal street gangs are a proper subject for expert testimony[.]” People v. Kille brew, 103 Cal.App.4th 644, 654, 126 Cal.Rptr.2d 876 (2002); see also People v. Olguin, 31 Cal.App.4th 1355, 1370, 37 Cal.Rptr.2d 596 (1994), overruled on other grounds by People v. Cromer, 24 Cal.4th 889, 103 Cal.Rptr.2d 23, 15 P.3d 243 (2001) (“The use of expert testimony in the area of gang sociology and psychology is well established.”). For example, expert testimony is appropriate to demonstrate the predilection of gang members to engage in violent behavior. People v. Gardeley, 14 Cal.4th 605, 619, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1996, as amended Feb. 19, 1997), cert. denied, 522 U.S. 854, 118 S.Ct. 148, 139 L.Ed.2d 94 (1997); accord Garcia v. Carey, 395 F.3d 1099, 1104 (9th Cir.2005). Gang expert testimony may also be used to provide evidence that allows the jury to make a permissible inference of the specific intent to further criminal street gang activity. Gardeley, 14 Cal.4th at 619, 59 Cal.Rptr.2d 356, 927 P.2d 713. Likewise, an expert is permitted to testify regarding the elements necessary to prove that a gang is a criminal street gang as defined in California Penal Code § 186.22. Id. at 621, 59 Cal.Rptr.2d 356, 927 P.2d 713.

During petitioner’s trial, the court allowed the prosecution to introduce the testimony of Huntington Beach Police Officer John Van Holt (‘Van Holt”) as a gang expert. (See Reporter’s Transcript (“RT”) at 370-440). Van Holt was a nine-year veteran of the Huntington Beach and Rial-to Police Departments, (id. at 370-71), with extensive experience dealing with gangs. (Id. at 371-74). After the prosecutor presented Van Holt with a hypothetical encompassing the facts of this case, (see id. at 397-400), he opined that the attack was conducted for the benefit of the Public Enemy Number One (“PENI”) criminal street gang:

My opinion would be that it would not necessarily be at the direction of the P.E.N.I. Gang. P.E.N.I. members are allowed to free-lance. They are expected to commit crimes to help benefit gang members, but I would think without a doubt this would benefit the gang through this — the way this person hypothetically responded to a situation which could be deemed as a disrespect. There was no bargaining. There was no challenging. It was an immediate violent confrontation. I don’t even want to say confrontation. An attack where this person may have deemed that this minority member, particularly after a disrespect or something coming from a minority member would be even harder to deal with.

(Id. at 400-01). Van Holt also opined that the conduct would promote, further or assist criminal activity:

Q ... What is your opinion?

A That conduct would promote the criminal street gang, Public Enemy Number One.

Q How is that?

A It was — it was a violent attack, a slash at the neck, minority victim, a possible perceived confrontation or disrespect by the hypothetical gang member. When a member of P.E.N.I. commits a violent assault as a response to some type of confrontation, it benefits the gang. It benefits their reputation on the street. It benefits the reputation among — or strengthens or raises the bar of fear in the community. It raises their— the bar of how they’re perceived by other gangs. Violence is how they operate. There’s no doubt that it would benefit the gang.

(Id. at 406-07).

Petitioner asserts that Van Holt’s testimony violated his constitutional rights because “the gang expert’s opinions were intrinsic to the proof of intent to kill and were improperly admitted in this case without proof of the preliminary fact that the offense was gang-related.” (Lodgment No. 8 at 13); (see also Reply at 4) (“In the Petitioner’s ease, the prosecution[’]s ‘gang expert’, as a matter of the Court’s discretion, was allowed to testify that no outward indica of the incident being ‘gang related’, was in itself proof that it was in fact gang related.”). As an initial matter, to the extent petitioner contends that the admission of Van Holt’s testimony impinges on the ultimate issue of whether the attack was committed for the benefit of PEN 1, (see Lodgment No. 8 at 11; Reply at 4), the Ninth Circuit’s decision in Moses “forecloses such a challenge, as it holds that there is no clearly established constitutional right to be free of an expert testimony on an ultimate issue. Accordingly, the admission of the opinion testimony of [Van Holt] cannot be said to be contrary to, or an unreasonable application of, Supreme Court precedent.” Briceno, 555 F.3d at 1078 (citation omitted).

In any event, the admission of Van Holt’s testimony did not violate petitioner’s due process rights. See Briceno, 555 F.3d at 1077 (“In any event, evidence erroneously admitted warrants habeas relief only when it results in the denial of a fundamentally fair trial in violation of the right to due process.”). Van Holt’s testimony was relevant to prove both motive and intent. See People v. Funes, 23 Cal.App.4th 1506, 1518, 28 Cal.Rptr.2d 758 (1994) (“Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.”); People v. Woods, 226 Cal.App.3d 1037, 1054, 277 Cal.Rptr. 269 (1991) (“Evidence of gang membership was critical to prove both motive (retaliation for the death of fellow gang member) and intent to kill (random killings based on hatred), and therefore was central to the case.”); see also People v. Lindberg, 45 Cal.4th 1, 46-47, 82 Cal.Rptr.3d 323, 190 P.3d 664 (2008), cert. denied, — U.S. —, 129 S.Ct. 2799, 174 L.Ed.2d 299 (2009) (“Numerous decisions in federal and other state cases also have upheld the admission of expert testimony to explain the culture and beliefs of White supremacy groups and gangs ... when such evidence was relevant to the issues at trial.”). In addition, the jury could have drawn the permissible inference from Van Holt’s testimony that petitioner was motivated to commit the charged crimes to gain respect for the PENI criminal street gang and to send a message not to disrespect the gang or its members. See People v. Samaniego, 172 Cal.App.4th 1148, 1169, 91 Cal.Rptr.3d 874 (Cal. Ct.App.2009, as amended Apr. 16, 2009) (gang expert testimony admissible to explain that “senseless murders” sent a message “not to disrespect the gang and its members! ]”); Olguin, 31 Cal.App.4th at 1369-70, 37 Cal.Rptr.2d 596 (gang expert’s testimony regarding gang territoriality, graffiti, and demonstrations of disrespect to rivals was properly admitted); see also Windham, 163 F.3d at 1103-04 (testimony regarding gang behavior was admissible because such evidence demonstrated defendant’s potential motive for participating in the alleged crimes); Pennyman v. Newland, 2003 WL 23025431, at *6 (N.D.Cal.2003) (gang expert testimony admissible since jury could draw permissible inference that petitioner was motivated to attack victims because of gang rivalry and his role as gang enforcer).

Even assuming, arguendo, that the admission of Van Holt’s testimony violated petitioner’s constitutional rights, the error was harmless. First, the jury was instructed pursuant to CALJIC Nos. 2.80 and 2.82 that an expert’s “opinion is only as good as the facts and reasons on which it is based[ ]” and that the jury must “decide from all the evidence whether or not the facts assumed in a hypothetical question [to the expert witness] have been proved.” (CT at 381 & 383). Second, petitioner was given ample opportunity to cross-examine Van Holt on the bases of his opinions. (See RT at 407-31 & 439-40). Finally, even without the gang expert testimony, there was other evidence that the crimes were gang-related. See infra at §§ II.B.3. & III.C.3.; see also Allen v. Woodford, 395 F.3d 979, 992 (9th Cir.2005, as amended Jan. 24, 2005), cert. denied, 546 U.S. 858, 126 S.Ct. 134, 163 L.Ed.2d 137 (2005) (“[T]o the extent that any claim of error ... might be meritorious, we would reject that error as harmless because the evidence of [petitioner’s] guilt is overwhelming.”). Accordingly, the court is persuaded that the state court’s decision was neither contrary to, nor an objectively unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Accordingly, Ground Three should be denied.

B. Sufficiency of the Gang Evidence.

In Ground Four, petitioner contends that the evidence was insufficient to establish that he participated in a criminal street gang or committed the attempted murder and the assault for the benefit of a criminal street gang. (Petition at 6; Lodgment No. 8 at 13-14). Petitioner asserts that there was no evidence to “establish [that] the current offense was committed to promote and benefit the gang” because there was “no other gang member involved in any aspect of the offense, there was no touting of any gang name or display of gang hand signals or gestures[,] ... no evidence any gang members knew about the incidents t]he victim was unaware of [petitioner’s] gang affiliation and obviously not intimidated by any suspicion [petitioner] was a gang member.” (Lodgment No. 8 at 14).

1. The Court of Appeal’s Opinion.

In analyzing Ground Four, the court of appeal stated:

[Petitioner] attacks the sufficiency of the evidence sustaining the conviction for street terrorism and the gang enhancements attached to the other charges. Specifically, he says there was nothing in the circumstances of the crime indicative of an intent to promote the PENI gang: [petitioner] never professed his gang membership, never advocated for his gang before or during the attack and the victim never even knew of [petitioner’s gang affiliation. Thus, there was no advantage or benefit received by the gang for this incident of “road rage,” [petitioner] argues.

The standard of review for the sufficiency of evidence has been oft-quoted. To repeat: Reversal for insufficiency is only warranted if there is no credible evidence to support each of the elements of the offense, accepting the evidence in the record below in the light most favorable to the judgment and drawing all reasonable inferences from the information to support the verdict. (See People v. Carpenter (1997) 15 Cal.4th 312, 387 [63 Cal.Rptr.2d 1, 935 P.2d 708]; see also People v. Rowland (1992) 4 Cal.4th 238, 269 [14 Cal.Rptr.2d 377, 841 P.2d 897].)

The gang expert, detective Van Holt, opined the knife attack on Espinoza was committed to benefit the criminal street gang, PEN 1. Van Holt also testified he had seen “training tapes” by and for PENI members in which the attacker would conceal a knife until he was close enough to inflict a deadly slash, identical to the manner in which [petitioner] attacked Espinoza. Finally, he testified that it is entirely consistent with PENI gang behavior for a lone member to attack without provocation someone whom they hate for racist reasons, merely for some perceived gesture or motion of disrespect. The purpose is to be violent, display violence and thus gain more respect within their own group.

Street terrorism requires evidence that “1. A person actively participated in a criminal street gang; [¶] 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; [¶] 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [¶] 4. That person directly and actively committed the crime of attempted murder, attempted voluntary manslaughter or assault with a deadly weapon.” (CALJIC No. 6.50, as given.) Most of these elements were met by the stipulated admission, given in the form of an instruction by the court to the jury: “[Petitioner] has admitted that PENI is a ‘Criminal Street Gang’, which is an ongoing organization, association, or group of three or more persons, whether formal or informal (1) having as one of its primary activities the commission of one or more of the crimes listed in Penal Code Section 186.22, (2) having a common name or common identifying sign or symbol and (3) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” He also admitted he was, and had been a member in PENI. As the jury convicted [petitioner] of the attempted murder of Espinoza, all the elements of the street terrorism charge were met.

Similarly, the elements of the gang enhancements accompanying the alternate charges of attempted murder, assault with a deadly weapon, vehicle theft were met. The court informed the jury the gang enhancement attached to the other charges required proof that: “1. The crimes charged were committed for the benefit of ... a criminal street gang; and [¶] 2. These crimes were committed with the specific intent to promote, further or assist in any criminal conduct by gang members.” (CALJIC No. 17.24.2, as given.) Based on Van Holt’s testimony and opinion, [petitionerj’s assault on Espinoza was committed to enhance [petitioner]^ standing in PENI and inflict injury on one he perceived as being inferior to him and not deserving of admission into this country. The evidence supported exactly that.

(Opinion at 21-23).

2. Applicable Federal Law.

The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); accord Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.2005, as amended July 8, 2005), cert. denied, 546 U.S. 1137, 126 S.Ct. 1142, 163 L.Ed.2d 1000, and cert. denied, 546 U.S. 1137, 126 S.Ct. 1145, 163 L.Ed.2d 1000 (2006). Thus, a state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury’s findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Nevertheless, a federal habeas petitioner “faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.” Juan H., 408 F.3d at 1274. In reviewing an insufficient-evidence claim in habeas proceedings, a federal court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (italics in original); accord Juan H., 408 F.3d at 1274. The Jackson standard is applied with specific reference to the applicable state law defining the elements of the crime at issue. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.) (en banc), cert. denied, 543 U.S. 956, 125 S.Ct. 415, 160 L.Ed.2d 318 (2004).

However, a federal habeas court “makes no determination of the facts in the ordinary sense of resolving factual disputes.” Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir.) (internal quotation marks omitted), vacated in part, 503 F.3d 822 (9th Cir.2007), and rev’d on other grounds, — U.S. —, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009). A federal court faced with a factual record “that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; accord Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 2492-93, 120 L.Ed.2d 225 (1992); Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir.2000) (en banc). “Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.” United States v. Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir.2004) (internal quotation marks, brackets and citation omitted); accord Sarausad, 479 F.3d at 678. In addition, “the assessment of the credibility of witnesses is generally beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995); accord Sarausad, 479 F.3d at 678 (“A jury’s credibility determinations are entitled to near-total deference^]”) (internal quotation marks and citation omitted).

The ultimate question on federal habeas review is not whether the court agrees with the jury’s conclusions, but only whether those conclusions are within the spectrum of rational results. Payne v. Borg, 982 F.2d 335, 338-39 (9th Cir.1992, as amended March 2, 1993), cert. denied, 510 U.S. 843, 114 S.Ct. 131, 126 L.Ed.2d 94 (1993). Furthermore, in postAEDPA cases, where a state court has issued a reasoned decision rejecting a claim of insufficient evidence under a standard that is not “contrary to” Jackson, a reviewing federal court applies an additional layer of deference. Juan H., 408 F.3d at 1275 n. 13. Thus, the federal court merely inquires “whether a state court determination that the evidence was sufficient to support a conviction was an ‘objectively unreasonable’ application of Jackson." Sarausad, 479 F.3d at 677 (italics in original); see also id. at 678 (“We therefore evaluate a state court’s resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d) (2)[.]”) (italics in original); Williams, 529 U.S. at 409, 120 S.Ct. at 1521 (Under 28 U.S.C. § 2254(d)(1), the federal habeas court asks “whether the state court’s application of clearly established federal law was objectively unreasonable.”).

3. Analysis.

Under California law, “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang” is guilty of street terrorism. Cal.Penal Code § 186.22(a). For purposes of this offense, “felonious criminal conduct” includes attempted murder, attempted voluntary manslaughter and assault with a deadly weapon. Id. at § 186.22(e)(1) & (e)(3). Thus, the crime of street terrorism required the prosecutor to prove that: (1) petitioner “actively participated in a criminal street gang;” (2) “members of that gang engaged in or have engaged in a pattern of criminal gang activity;” (3) petitioner “knew that the gang members engaged in or have engaged in a pattern of criminal gang activity;” and (4) petitioner “directly and actively committed the crime of attempted murder, attempted voluntary manslaughter or assault with a deadly weapon.” (CT at 398) (CALJIC No. 6.50); see also People v. Robles, 23 Cal.4th 1106, 1115, 99 Cal.Rptr.2d 120, 5 P.3d 176 (2000) (“Those elements are actively participating in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and willfully promoting, furthering, or assisting in any felonious criminal conduct by members of that gang.”) (internal quotation marks, brackets and citation omitted).

The California Penal Code also provides for an enhanced sentence for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]” Cal.Penal Code § 186.22(b)(1). This enhancement requires proof of two separate elements: (1) that defendant committed the charged crime for the benefit of, at the direction of, or in association with a gang; and (2) that defendant committed the crime with the specific intent to promote, further or assist in criminal conduct by gang members. Gardeley, 14 Cal.4th at 617, 59 Cal.Rptr.2d 356, 927 P.2d 713; see also Garcia, 395 F.3d at 1102-03 & n. 5 (“It is important to keep these two requirements of the gang enhancement separate.”).

Having conducted an independent review of the record, the court finds that, viewed in the light most favorable to the prosecution, there was sufficient evidence by which a rational jury could find beyond a reasonable doubt that petitioner committed street terrorism and the attempted murder and assault with a deadly weapon for the benefit of PENI and with the specific intent to promote, further or assist in criminal conduct by PENI members. First, as an initial matter, the jury found sufficient evidence, which petitioner does not contest, (see, generally, Petition at 5-6b; Reply at 1-5), to convict petitioner of attempted murder and assault with a deadly weapon. Second, petitioner stipulated that PENI was a criminal street gang, of which he was, and has been, a member. (See RT at 55-56, 476 & 481); (CT at 396) (“[Petitioner] has admitted that PENI is a ‘Criminal Street Gang’, which is an ongoing organization, association, or group of three or more persons, whether formal or informal (1) having as one of its primary activities the commission of one or more of the crimes listed in Penal Code Section 186.22, (2) having a common name or common identifying sign or symbol and (3) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”).

Finally, there was evidence of petitioner’s specific intent to commit the attempted murder and the assault to promote, further, or assist in criminal conduct by PENI members. See People v. Pre, 117 Cal.App.4th 413, 420, 11 Cal.Rptr.3d 739 (2004) (“Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.”). Van Holt opined that petitioner’s knife attack on the victim was committed to benefit the PENI criminal street gang. (See RT at 400-01); People v. Martinez, 158 Cal.App.4th 1324, 1332, 70 Cal.Rptr.3d 680 (2008) (“The elements of the gang enhancement may be proven by expert testimony.”); see also supra at § II.A.3. (finding that the admission of the gang expert’s testimony did not violate petitioner’s due process rights). Van Holt testified that he had seen PENI “training tapes” in which an attacker would conceal a knife in a manner similar to the method used by petitioner and then attack the victim when he was close enough to the victim. (See RT at 403; see also id. at 165-67). Van Holt also testified that it was the PEN 1 modus operandi for a lone gang member to attack without apparent provocation merely for racist reasons and in response to a perceived gesture of disrespect. (See id. at 401). Finally when petitioner slashed the victim’s throat, the knife severed the Star-of-David chain hanging around the victim’s neck, which petitioner grabbed before fleeing. (See id. at 113-14 & 166-67). The jury could have reasonably inferred that petitioner grabbed the Star-of-David chain as a “souvenir” to prove to his fellow gang members that his victim was a target of the gang’s racial and ethnic hatred.

Petitioner contends that “[t]he evidence established [petitioner] committed the offenses due to anger of the road rage variety[,]” and not to benefit PEN 1. (Lodgment No. 8 at 14). Petitioner’s assertions are premised on his version of the incident and interpretation of the evidence. (See id. at 13-14); (see also RT at 455-60) (arguing at trial that petitioner acted out of road rage with no links to his gang membership). However, a federal habeas court faced with a factual record “that supports conflicting inferences must presume ... that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; see Sarausad, 479 F.3d at 678 (A federal habeas court “makes no determination of the facts in the ordinary sense of resolving factual disputes.”) (internal quotation marks omitted).

In short, viewing the evidence in the light most favorable to the prosecution, a jury could reasonably conclude that petitioner attacked the victim with the specific intent to promote, further, or assist other gang crimes. See Gardeley, 14 Cal.4th at 619, 59 Cal.Rptr.2d 356, 927 P.2d 713 (finding specific intent to further gang activity where expert opined “that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold[ ]”). The Jackson standard is a high one for habeas petitioners to overcome, Jones v. Wood, 207 F.3d 557, 563 (9th Cir.2000), and in this case, petitioner simply cannot meet it. Accordingly, Ground Four should be denied.

III. PREJUDICIAL EVIDENCE.

In Ground One, petitioner contends he was prejudiced by the trial court’s failure to bifurcate the gang enhancement allegations from the other charges. (Petition at 5). In Ground Two, petitioner asserts he was prejudiced by the evidence of his prior convictions. (Id.).

A. Applicable Federal Law.

“Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). Under narrow circumstances, the misapplication of state statutory or decisional law or evidentiary rules may violate federal due process safeguards. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984); Ortiz v. Stewart, 149 F.3d 923, 941 (9th Cir.1998), cert. denied, 526 U.S. 1123, 119 S.Ct. 1777, 143 L.Ed.2d 806 (1999). Thus, federal habeas courts are “limited, at most, to determining whether the state court’s finding was so arbitrary or capricious as to constitute an independent due process” violation. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102.

The erroneous admission of evidence violates due process only if it is so prejudicial that it renders a trial fundamentally unfair. See McGuire, 502 U.S. at 70, 112 S.Ct. at 481; Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir.2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). The erroneous admission of evidence renders a trial fundamentally unfair only if there are no permissible inferences the trier of fact can draw from it. Boyde, 404 F.3d at 1172; Houston, 177 F.3d at 910 n. 6; Jammal, 926 F.2d at 920. Thus, “[a] habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde, 404 F.3d at 1172.

B. Ground One.

In Ground One, petitioner contends the trial court abused its discretion in denying his request to bifurcate the gang enhancement allegation. (Lodgment No. 8 at 7); (see also Reply at 1-2) (arguing that the trial court’s decision violated state law). He asserts that because “the gang evidence was fairly inflammatory[,]” it “had the potential to ‘spill over’ to bolster the ‘weak’ case of attempted murder.” (Lodgment No. 8 at 7).

1. The Court of Appeal’s Opinion.

In analyzing Ground One, the court of appeal stated:

[Petitioner] requested the court to bifurcate the issue of the criminal street gang enhancement from the substantive charges, but the court refused, permitting the bifurcation as to the two prior prison terms but not the gang enhancement and the street terrorism charge. [Petitioner] characterizes this ruling as an abuse of discretion because without the gang evidence, there would have been no proof of his motive or intent to support the attempted murder and assault charges. Thus, he concludes, he would have been acquitted of the attempted murder count, and the court’s error requires reversal of that conviction. We disagree.

A trial court has broad discretion in controlling the conduct of a criminal trial. (See § 1044; People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [16 Cal.Rptr.3d 880, 94 P.3d 1080].) The court denied the request to bifurcate not “because it believed it lacked authority to bifurcate, but as an exercise of its discretion. We see no abuse of that discretion.” (Ibid.) The Hernandez court noted that a gang enhancement is “different from [a] prior conviction ... [because it] is attached to the charged offense and is, by definition, inextricably intertwined with that offense. [Thus,] less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Ibid.)

Additionally, as the Attorney General validly emphasizes, evidence of the gang’s reputation and behavior would have been admitted at trial irrespective of the enhancement’s bifurcation because [petitioner] faced the substantive charge of street terrorism which was not subject to “bifurcation.” (See People v. Burnell (2005) 132 Cal.App.4th 938, 947 [34 Cal.Rptr.3d 40]) [“Thus to entirely eliminate the gang evidence would have required a severance ... of the street terrorism count and the bifurcation of the gang enhancements.” (Italics added.).] As [petitioner] failed to make any motion to sever the street terrorism count from the rest of the crimes committed at the same time, the bifurcation of the gang enhancement would have been functionally meaningless. (Id. at p. 948 [34 Cal.Rptr.3d 40].)

Had [petitioner] raised a severance motion, it would have been most probably denied. Joint trials of offenses which occur together are legislatively preferred over separate trials, and the party requesting severance of properly joined offenses carries a very heavy burden to “ ‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried’ ” before such a severance can be granted. (People v. Burnell, supra, 132 Cal.App.4th at 946 [34 Cal.Rptr.3d 40]; § 954.) “Severance of charged offenses is a more inefficient use of judicial resources ... because severance requires selection of separate juries, and the severed charges would always have to be tried separately[.]” (People v. Hernandez, supra, 33 Cal.4th at 1050 [16 Cal.Rptr.3d 880, 94 P.3d 1080].) As the street terrorism count was merely an alternate charge to the attempted murder and assault counts — thus, requiring much the same evidence to prove — and no more potentially inflammatory than those other charges, severance would not have been appropriate even had [petitioner] requested it. (E.g., Hernandez, supra, 33 Cal.4th at 1051 [16 Cal.Rptr.3d 880, 94 P.3d 1080].)

[Petitioner] distinguishes his situation from those cases in which bifurcation of gang enhancements was properly denied by arguing the gang expert’s testimony involved matters not relevant to the actual motive and intent to prove the attempted murder and assault. Invoking the archaic rule of cross-admissibility of other-crimes evidence enunciated in Williams v. Superior Court (1984) 36 Cal.3d 441 [204 Cal.Rptr. 700, 683 P.2d 699], [petitioner] contends bifurcation of gang enhancements should be granted whenever the gang evidence is not cross-admissible in the trial of the underlying crimes.

Irrespective of the accuracy of this position, it does not benefit [petitioner] because, as noted above, such evidence would have been admissible in his trial due to the street terrorism charge even if the gang enhancement had been bifurcated. Thus, cross-admissibility was met in his case and no prejudice resulted from the denial of bifurcation. (See People v. Cunningham (2001) 25 Cal.4th 926, 985 [108 Cal.Rptr.2d 291, 25 P.3d 519] [if cross-admissibility met, no possible prejudice by admitting evidence].)

(Opinion at 4-6).

2. Analysis.

In determining whether the trial court’s decision not to bifurcate the gang enhancement allegation violated petitioner’s constitutional rights, the court “do[es] not depend on the state law governing severance in state trials.” Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir.1997). Nor does the court “consider procedural rights to severance afforded in federal trials.” Id. Instead, the court determines whether the decision not to bifurcate violated petitioner’s due process rights. Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.1991) (“The simultaneous trial of more than one offense must actually render petitioner’s state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate.”) (internal quotation marks and citation omitted). Petitioner bears the burden of demonstrating that the trial court’s decision not to bifurcate rendered his trial fundamentally unfair. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2003, as amended Sept. 21, 2004), cert. dismissed, 545 U.S. 1165, 126 S.Ct. 410, 162 L.Ed.2d 933 (2005) (“We may grant habeas relief on a joinder challenge only if the joinder resulted in an unfair trial. There is no prejudicial constitutional violation unless simultaneous trial of more than one offense actually rendered petitioner’s state trial fundamentally unfair and hence, violative of due process.”) (internal quotation marks, alterations and citation omitted); Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir.2000, as amended Feb. 21, 2001), cert. denied, 534 U.S. 847, 122 S.Ct. 112, 151 L.Ed.2d 69, and cert. denied, 534 U.S. 943, 122 S.Ct. 322, 151 L.Ed.2d 241 (2001) (“On habeas review of a prisoner’s challenge to a trial court’s failure to s