
    David HERNANDEZ, Petitioner, v. Joseph McGRATH, Respondent.
    No. CIV S-04-0280-GEB-GGH-P.
    United States District Court, E.D. California.
    Jan. 21, 2009.
    
      Matthew Dale Alger, Alger and Alger, Clovis, CA, for Petitioner.
    Daniel B. Bernstein, Attorney General’s Office for the State of California, Sacramento, CA, for Respondent.
   ORDER

GARLAND E. BURRELL, JR., District Judge.

Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On November 20, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner and respondent have filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed November 20, 2008, are adopted in full; and

2. Petitioner’s application for a writ of habeas corpus is granted in part on the Confrontation Clause issue. The case shall be sent back to state court for resen-tencing only on attempted murder without a finding of premeditation.

FINDINGS & RECOMMENDATIONS

GREGORY G. HOLLOWS, United States Magistrate Judge.

I. Introduction

Petitioner is a state prisoner represented by counsel, proceeding on an amended petition for writ of habeas corpus. Petitioner challenges his 2000 conviction for four counts of assault with a semi-automatic firearm (countl, 2, 7 & 8 Cal.Penal Code § 245(b)), shooting at an occupied motor vehicle (count 3, CaLPenal Code § 246), attempted murder (count 4, CaLPenal Code § 664 and § 187(a)), shooting a firearm from a motor vehicle (count 5, CaLPe-nal Code § 12034) and street terrorism (count 6, CaLPenal Code § 186.22(a)). Petitioner is serving a sentence of life in prison plus a consecutive term of 25 years to life and a determinate consecutive term of 12 years, eight months.

Petitioner raises the following claims in his challenge: 1) discovery violations; 2) improper hearsay testimony of a gang expert; 3) preclusion of a dying declaration; 4) severe defense discovery sanctions; 5) ineffective assistance of counsel; 6) Brady violations; 7) replacement of a juror without proper instructions; 8) improper jury instructions; 9) prosecution misconduct; 10) improper sentencing. Amended Petition (AP) at 8-12.

After carefully considering the record, the court recommends that the petition be granted in part.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.1998), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA “worked substantial changes to the law of habeas corpus,” estabhshing more deferential standards of review to be used by a federal habeas court in assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between “contrary to” clearly established law as enunciated by the Supreme Court, and an “unreasonable application of’ that law. Id. at 405, 117 S.Ct. at 1519. “Contrary to” clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are. no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, “the most important point is that an unreasonable application of federal law is different from an incorrect application of law... .[A] federal ha-beas court may not issue the writ .simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Visciotti 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003).

III. Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.

Around 4:00 or 5:00 p.m. on October 12, 1999, a man on a bicycle approached a car stopped at the intersection of Myrtle and E Streets in Stockton. The bicyclist stared menacingly at the car’s passenger, Babaline Lopez. When the driver of the car, Richie Chavez, turned to look at him, the bicyclist raised three fingers and said, “Sur Trece.” Chavez replied, “It’s all about Norteño.” The bicyclist then pulled out a gun and fired at least five shots in the direction of the car, while Chavez drove in reverse.
The verbal exchange between the bicyclist and Chavez contained references to two Hispanic gangs in Stockton — the Norteños, who are from Northern California and identify themselves with the number 14, and the Sureños, who are from Southern California and use the number 13. The Norteños and the Sureños are bitter rivals who have killed or assaulted opposing gang members numerous times.
In a photo lineup and at trial, Lopez identified defendant as the bicyclist who shot at Chavez and Lopez. Chavez denied that defendant was the perpetrator, but testified he saw the bicyclist riding in a pickup truck later on the day of the shooting. When Chavez was shown a photo lineup prior to trial, he refused to look at it because he did not want to be labeled a “snitch,” especially if he ended up in prison. At the time of trial, Chavez was in prison.
After escaping from defendant, Chavez dropped Lopez off nearby at his house and went to see his friend, Samuel Vasquez. Some time later, Lopez saw Chavez drive past the house with Vasquez and other friends in his car. She also saw a pickup truck drive by with defendant in the passenger seat. Lopez thought that the occupants of the pickup truck observed Chavez’s car and that a chase may have ensued. About 20 minutes later, while Lopez was returning from a trip to the store, she saw defendant in the passenger seat of a Suburban driven by the same man who had been driving the pickup truck. One of the men in the Suburban called out to Lopez, “Hey, what’s up, girl?” Subsequently, Lopez saw the same two men again in the pickup truck. Thereafter, she heard a series of about five gunshots.
At approximately 7:00 p.m. that evening, Vasquez, his sister, Chonnel, and a friend, Lourdes Vizcarra, were walking to a grocery store at the corner of Washington and E Streets in Stockton, which was about two blocks from where Chavez and Lopez were assaulted two hours earlier. The pickup truck, in which Lopez had seen defendant riding as a passenger, drove up to the pedestrians, and the passenger called out, ‘What’s up, ese?” Vasquez replied, “I’m not a[n] ese. I’m a[n] ene.” The question, “what’s up, ese?” is a friendly greeting when spoken by one Sureño to another, but when directed at a Nor-teño, the question can be an insult or challenge.
After Vasquez responded, the passenger pulled out a gun and fired several shots at him, one of which struck him in the back. Vasquez collapsed, but the gunman continued firing while Vasquez rolled around on the ground in an attempt to avoid being hit again. Vasquez was later taken to the hospital where he was treated for a gunshot wound.
The pickup truck involved in the drive-by shooting had been stolen from a parking lot after 5:00 p.m. but before 6:00 p.m. on the day of the shootings. On November 1, 1999, Ramiro Monta-nez, pled guilty to a charge of receiving stolen property with respect to the pickup truck. When defendant was arrested six days later, he was seated in the front passenger seat of a blue Suburban driven by Montanez.
The stolen pickup truck was recovered on the date of the shootings. Defendant’s right palm print was found on the vertical frame behind the driver’s door of the pickup truck, while part of his left palm print and his left thumbprint were on the driver’s-side exterior mirror. Six other fingerprints were lifted from the pickup truck, but they did not match defendant’s fingerprints.
The police recovered five bullet casings near the intersection of Myrtle and E Streets, where Chavez and Lopez were fired upon, and found another six casings near the intersection of Washington and E Streets, where Vasquez was shot. All eleven casings were Winchester .380 caliber shells. A ballistics expert opined that all six of the cartridges recovered near Washington Street, and at least one of the five cartridges found near Myrtle Street, were fired from the same semiautomatic gun. The other four cartridges were probably fired from the same gun but the witness could not say so “to a scientific certainty.”
Initially, Chonnel did not identify defendant as the gunman in a photo lineup shortly after the shooting. But she identified him at the preliminary hearing and at trial, and explained that she had recognized him in the photo lineup but did not point him out because she feared retaliation. She also testified that she had seen defendant on a bicycle earlier on the day of the shooting.
Vizcarra “almost right away” selected defendant from a photo lineup and stated she was “100 percent sure” he was the shooter. And at the preliminary hearing, she identified defendant as the gunman. At trial, however, she recanted her prior identifications of defendant. When asked to scan the courtroom to see whether she recognized the gunman, Vizcarra initially refused to even look at defendant. After being told that she would not be allowed to leave until she looked at defendant, Vizcarra finally did so. When asked whether he was the person who shot Vasquez, she replied, “Doesn’t look like him.” Vizcarra then claimed that “everybody” in court, including the judge, had pressured her into identifying defendant during the preliminary hearing.
Vasquez initially gave police a detailed description of the gunman and stated that he had had run-ins with the gunman on other occasions. When Vasquez was shown a photo lineup that included a picture of defendant, he told police he recognized the gunman but would not point him out because “[h]e was going to take care of it himself.” In another police interview a few weeks later, Vasquez identified defendant as the man who shot him. At trial, Vasquez claimed that he could not recall having provided police details about the gunman or the shooting incident, or having identified defendant. Vasquez was in prison at the time of trial, and he admitted that it was “bad to be a snitch in prison.”
Detective Nicholas Garcia, a gang expert for the Stockton Police Department, testified defendant is a documented member of the Vickystown gang, which is a Sureño gang in Stockton. Garcia’s testimony was supported by another police officer who testified defendant told him in January 1999 that defendant had been a member of the Vickystown gang for eight years. A San Joaquin County Sheriffs official stated that defendant said he was a member of the Vickystown gang when he was booked into jail. In addition, defendant has a tattoo of three dots on the fingers on his left hand, another sign of membership in a Sureño gang.
According to Garcia, Chavez and Vasquez are documented members of a Nor-teño gang, while Montanez, who pled guilty to possessing the stolen pickup truck, is a Vickystown gang member. Based on the circumstances of the crimes and the fact the male victims and defendant were in rival gangs, Garcia opined that the shootings were gang-related. He also believed that the shooting of Vasquez was in retaliation for the unsolved murder of a Vickystown gang member, who was nicknamed “Toaster.” Garcia had information from a Vickystown gang member that Vasquez had shot at defendant a few weeks before the present shootings, and that Vasquez told defendant he was going to shoot him “like he killed Toaster.”
Garcia testified that gang members will retaliate against someone who has victimized them, but they are reluctant to report the matter to the police or cooperate with a police investigation for fear of being labeled a “snitch.” Being viewed as a “snitch” can result in physical harm. Garcia also stated that it was common for gang members to attempt to intimidate witnesses testifying in trials involving charges against fellow gang members.
Defense
Defendant presented an alibi defense, claiming that he was at a birthday party at his girlfriend’s house most of the evening of October 12,1999.
Defendant’s girlfriend, Claudia Manri-quez, testified that defendant arrived at her house with his son at around 9:30 or 10:00 a.m. He remained there until around 5:00 or 5:30 p.m., when they left to go get a cake for Claudia’s sister, Yasenia, who was celebrating her sixteenth birthday. Claudia recalled the time because they were leaving as her father returned home from work, and he usually arrived home around 5:30 p.m. After they returned with the cake, defendant left briefly to take his son home around 10:00 p.m., and then came back to the house.
On cross-examination, Claudia stated that, before entering the store to get the cake, defendant walked over and talked to Montanez, who was sitting in a large truck in the store’s parking lot. When asked if she saw defendant touch the truck, she replied she could not remember, but defendant “probably could have leaned on it ... he probably could have touched it.” When Claudia was shown a copy of her employment records showing that she worked on October 12, she insisted the records were wrong. She claimed to be on a leave of absence during that period of time even though her employment records showed she had worked the day of the shooting and the day before.
Claudia’s cousin, Nora Galaviz, testified that she was at the house during Yase-nia’s birthday party and that she went with Claudia and defendant to get the cake around 5:00 or 6:00 p.m. Before defendant went into the store, she observed him talking to Montanez in a truck “for a few seconds.”
Yasenia Manriquez testified that defendant and Claudia returned with the birthday cake around 5:30 p.m., and defendant was still at the house when Yasenia left around 8:00 or 8:30 p.m. Yasenia’s brother, Victor Manriquez, testified that defendant was at the house at 2:00 p.m. on October 12, when Victor came home during a work break. Victor admitted having belonged to a Sureño gang, but denied current membership. Rachel Asuncion, who was Victor’s girlfriend at the time, stated that defendant left to get the cake around 5:00 or 5:30 p.m. and was gone for about 20 to 30 minutes.
Defendant testified that he arrived at his girlfriend’s house with his son on the morning of October 12, and he went with Claudia and Nora to get a cake for Claudia’s sister. When they arrived at the store, defendant saw Montanez in a pickup truck with some other people, and he stopped to talk to him for about five minutes. Defendant remembered touching the exterior of the pickup truck around the driver’s door. But he could not recall touching the driver’s mirror. When the prosecutor pointed out that defendant’s prints were on the mirror in a position indicating that he had been sitting in the driver’s seat and adjusted the mirror, defendant stated he may have leaned on the mirror.
Defendant asserted he did not own or have access to a bicycle, and he claimed he never had a fight with Vasquez. Acknowledging that “Toaster” was a friend of his girlfriend’s, defendant admitted going to Toaster’s funeral but denied having heard that Vasquez shot Toaster or that Vasquez had threatened to kill defendant. Defendant denied shooting at Chavez, Lopez, Vasquez, Chonnel, or Vizcarra.

California Court of Appeal Opinion (Opinion) at 2-9. See also 2002 WL 1904408.

IV. Argument & Analysis

A. Claim 1 — Discovery Violation

Petitioner contends that the prosecution’s delay in providing contact information for a witness with potentially exculpatory evidence, who was then unavailable at trial, violated petitioner’s Fifth, Sixth and Fourteenth Amendment rights to a fair trial. Petitioner’s State Appellate Brief at 13.

Legal Standard

As is well known, the due process clause of the Fourteenth Amendment to the United States Constitution creates a duty in the prosecution to disclose certain evidence to a defendant. See United States v. Bagley, 473 U.S. 667, 674-677, 105 S.Ct. 3375, 3379-3381, 87 L.Ed.2d 481 (1985). The evidence, however, must be both “favorable” to the defendant and “ ‘material’ ” to either guilt or penalty. Id. at 674, 105 S.Ct. at 3379. Favorable evidence is evidence that the defense could use either to impeach the state’s witnesses or to exculpate the accused. Id. at 676, 105 S.Ct. at 3380. “Bagley held that ... favorable evidence is material, and constitutional error results from its suppression ..., ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A “reasonable probability” is one sufficient to “undermine[ ] confidence in the outcome.” Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

Following the shootings, Detective John Reyes interviewed fourteen year-old Edgar H., regarding what he observed. Edgar stated that he was in a car with family members when he observed victim Richie Chavez standing on the street speaking to someone in another vehicle. Chavez approached Edgar’s car and said that someone had been shooting at him earlier and then Chavez pointed towards a truck and indicated that is whom shot at him. Reporter’s Transcript (RT) at 634. Edgar stated that he observed the truck and got a good look at the two people in the truck and could identify them. RT at 635-636. Edgar was able to identify the truck and after observing a photo array identified Ramiro Montanez as the driver, but did not pick petitioner’s photo from the array. RT at 635. Detective Reyes prepared a report with Edgar’s statement but did not place Edgar’s contact information in the report. Petitioner’s counsel stated that he attempted to get Edgar’s contact information starting in December 1999.

Detective Reyes attempted to serve Edgar with a subpoena in May 2000 but learned that Edgar and his mother had moved to Mexico. RT at 81, 93. While Edgar’s mother had mentioned moving to Mexico, she provided no date and did not say a move was certain. RT at 93-94. Detective Reyes was unaware they had moved. Id. On May 25, 2000, the trial court ordered the prosecution to provide petitioner with Edgar’s contact information and the prosecution complied after Detective Reyes learned Edgar’s new phone number. Clerk’s Transcript (CT) at 213. A defense investigator contacted Edgar several times and Edgar stated he would not return to testify. Id.

Petitioner argued to the trial court that Edgar’s testimony was exculpatory and the delay providing Edgar’s contact information allowed Edgar to leave the country and prevent him from testifying at trial. The trial court held- that Edgar’s statement was not exculpatory and that Detective Reyes withheld the contact information in good faith. RT at 128. The court also- stated that Detective Reyes did not have specific knowledge that Edgar was moving to Mexico and the move was not caused or assisted by the prosecution. Id. The trial court held there was no violation of petitioner’s constitutional rights, but the prosecution violated the spirit of the discovery laws. RT at 131-132. As a sanction, the trial court allowed Edgar’s statements to Detective Reyes to be admitted through the detective’s trial testimony. RT at 133-134.

The Court of Appeal upheld the trial court’s rulings and found no violation of petitioner’s constitutional rights. Petitioner now seeks habeas relief for alleged violations of his due process rights due to the prosecutions failure to provide the witness’ contact information in a timely manner.

Petitioner has failed to show the prosecution’s failure to provide Edgar’s contact information deprived petitioner of favorable or material evidence as outlined in Bagley. Petitioner was provided with Edgar’s contact information four months prior to the start of trial and in that time petitioner’s investigator contacted and spoke with Edgar on multiple occasions. Yet, petitioner has provided no evidence on how Edgar’s testimony would have been any better than his statements that Detective Reyes testified to. The trial court and Court of Appeal correctly noted that Edgar’s testimony was not exculpatory. Edgar was not present at either of the shootings and could only testify that he did not see the petitioner in the car following the Chavez shooting.

Petitioner has also failed to show how knowledge of Edgar’s location any earlier would have enabled petitioner to insure Edgar’s appearance. Petitioner maintains that he could have served a subpoena on the witness, yet there is no showing that this would have prevented Edgar’s family from moving him to Mexico. Petitioner merely speculates that Edgar’s testimony would have aided his defense.

Petitioner’s speculation falls short in demonstrating that this testimony would have undermined confidence in the verdict. Kyles, 514 U.S. 419, 433-434, 115 S.Ct. 1555. Nor has petitioner shown that the evidence was either favorable or material. Bagley, at 672, 105 S.Ct. at 3379. Thus, petitioner’s claim should be denied.

B. Claim 2 — Erroneous Admission of Hearsay Testimony

Petitioner correctly contends that his right to confront adverse witnesses under the Sixth Amendment was violated when the trial court admitted testimony from the prosecution’s expert that relied on hearsay from a gang member who was unavailable and was not proper expert testimony. AP at 25.

Legal Standard

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const. Amend. VI. This right, extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162 (1987). “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Lilly v. Virginia, 527 U.S. 116, 124, 119 S.Ct. 1887, 1894, 144 L.Ed.2d 117 (1999). See also Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (a primary interest secured by the Confrontation Clause is the right of cross-examination). The right to confront witnesses, guaranteed by the Sixth and Fourteenth Amendments, includes the right to cross-examine adverse witnesses to attack their general credibility or show their possible bias or self-interest in testifying. Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Davis, 415 U.S. at 316, 94 S.Ct. at 1110. “The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” VanArsdall, 475 U.S. at 679, 106 S.Ct. at 1435.

At trial, Detective Nicholas Garcia, a gang expert, testified about the violent conflict between the Sureño and Norteño gangs and the motive for petitioner to commit the crime. RT at 776-777. He stated there had been several homicides between the two gangs in Stockton and that petitioner was in the Vickystown gang affiliated with the Sureños, while the two victims, Richie Chavez and Samuel Vasquez, were members of the Norteño gang. Id. Detective Garcia explained that it is common for a Sureño to attack a Norteño, solely due to gang affiliation. RT at 779-780. Drive-by shootings using stolen cars are also typical of the violence between these two gangs. Id.

Detective Garcia provided his opinion on why Vasquez was shot. He stated that he had information from a Vickystown gang member that Vasquez had shot at petitioner a few weeks before and Vasquez had said that he was going to shoot petitioner like Vasquez had killed Toaster. RT at 786. Toaster was a nickname for a Vick-ystown gang member, the same gang as the petitioner, and had been killed the previous month. RT at 786-787. Detective Garcia went further and said that in his expert opinion, petitioner had shot Vasquez as gang retaliation for Toaster’s murder and for being shot at by Vasquez. RT at 787.

Detective Garcia obtained this information from a Vickystown gang member, Ramiro Montanez. Montanez stated that petitioner had told him about Vasquez killing Toaster and shooting at him. RT at 504-505. Detective Garcia learned this information during an interrogation of Monta-nez regarding the instant shooting. Mon-tanez did not directly implicate himself or petitioner in the instant shooting.

Petitioner’s counsel objected on the grounds that Detective Garcia’s expert testimony was based on hearsay and Monta-nez’ unavailability, by asserting his Fifth Amendment rights, prevented counsel from conducting a proper cross examination. The trial court overruled these objections and allowed Detective Garcia to testify that a gang member provided him with the information, but precluded him from identifying Montanez as the source or that petitioner had originally stated the information. RT at 718-719, 733-744.

Petitioner argues that the trial court’s ruling deprived him of his Sixth and Fourteenth Amendment rights to confrontation and a fair trial. The Court of Appeal found that the trial court erred in allowing Detective Garcia to testify about petitioner’s personal motive for shooting Vasquez. The Court of Appeal did not address the Confrontation Clause claim, instead finding that the admission of the expert testimony violated the California Evidence Code, stating:

A person may qualify as an expert witness if the person has “special knowledge, skill, experience, training, or education” in a particular field. (Evid.Code, § 720.) An expert witness may give testimony in the form of an opinion, but expert opinion testimony is admissible only if the subject matter of the testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) The subject matter of the culture and habits of criminal street gangs meets this criterion. (.People v. Gardeley (1996) 14 Cal.4th 605, 617, 59 Cal.Rptr.2d 356, 927 P.2d 713.)
Evidence Code section 801, subdivision (b), limits expert opinion testimony to an opinion that is “[b]ased on matter ... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates .... ” Any material that forms the basis of the expert’s opinion must be reliable, but so long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible-such as hearsay-can form the proper basis for an expert’s opinion testimony. (People v. Gardeley, supra, 14 Cal.4th at p. 618, 59 Cal.Rptr.2d 356, 927 P.2d 713.) “And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter ... upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opin-ion____” (Ibid., citations omitted.)
Thus, the court properly permitted Garcia to testify about the behavior of the Sureño and Norteño gangs in Stockton and to opine that the shootings were gang-related based upon his experience and information he had gathered from other officers and gang members, even if this information was hearsay. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-618, 59 Cal.Rptr.2d 356, 927 P.2d 713; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370, 37 Cal.Rptr.2d 596; People v. Gamez (1991) 235 Cal.App.3d 957, 965-966, 286 Cal.Rptr. 894.)
But in admitting Garcia’s opinion testimony about defendant’s personal motive for shooting Vasquez based on hearsay statements about specific prior incidents, the court erred because this was not the proper subject of expert testimony. The conclusion that a person has a motive to retaliate against another individual for attacking him and for killing his friend is not a matter outside the realm of common experience such that the testimony of an expert is necessary to assist the jury.

Opinion at 38-40.

However, the Court of Appeal held that the admission of the expert testimony was harmless error. Opinion at 40. The Court of Appeal cited the longstanding violence between the Sureños and Norte-ños and the evidence that petitioner, a Sureño, had a motive to shoot Vasquez, simply for his Norteño affiliation. Looking at the evidence as a whole, the Court of Appeal concluded that it was not reasonably probable that petitioner would have obtained a favorable jury verdict had the trial court excluded the opinion testimony. Opinion at 41.

This court agrees that Detective Reyes improperly testified about petitioner’s personal motive for shooting Vasquez, yet finds that the error was not harmless. Ordinarily in a review under the AEDPA, the federal court looks through unexplained decisions to the last reasoned decision as the basis for the state court’s judgment. Gill v. Ayers, 342 F.3d 911, 917 n. 5 (9th Cir.2003). In the instant case, there is no reasoned state court decision addressing petitioner’s Confrontation Clause claim. As such, an independent review of the record is used to decide whether the state court’s decision was an objectively unreasonable application of Supreme Court precedent. Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir.2002).

An unavailable witness’s out-of-court statement may be admitted against a criminal defendant and not run afoul of the Confrontation Clause so long as it bears adequate indicia of reliability— i.e., falls within a “firmly rooted hearsay exception” or otherwise bears “particularized guarantees of trustworthiness” such that adversarial testing would be expected to add little, if anything, to the statement’s reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Lilly, 527 U.S. at 124-25, 119 S.Ct. 1887. Whether a statement bears “particularized guarantees of trustworthiness” must be shown from the totality of the circumstances surrounding the making of the statement, not from the trial evidence as a whole. Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Petitioner’s Confrontation Clause claim is governed by these standards. The Supreme Court held in Lilly, that a non-testifying accomplice’s confession to police violated the defendant’s right to confrontation even though the confession implicated the accomplice because it did not contain guarantees of trustworthiness. Lilly, 527 U.S. at 139, 119 S.Ct. at 1901.

The California Court of Appeal found that the expert had testified to improper hearsay; thus, it stands to reason that the testified-to-hearsay was not firmly rooted in any hearsay exception. Although experts can sometimes rely on hearsay to form -their opinions, the opinion itself was improper in that it was not based on an issue which the jury required expert testimony, and the hearsay itself was critical (as shown below) to an important issue in the case. Thus, the admission of the hearsay can find no justification in clearly established law.

Detective Garcia’s testimony about general gang violence and the history between the Sureños and Norenos was proper. Yet, as stated by the Court of Appeal, Detective Garcia’s testimony about petitioner’s motive was not expert testimony, simply his opinion procured from just one source, Montanez. Essentially, Detective Garcia repeated to the jury what Monta-nez stated in the interrogation. Montanez’ statements were not based on his own observations, rather hearsay statements spoken by the petitioner. These statements were admitted for the truth of the matter to the jury, in the guise of expert testimony.

Montanez was arrested and investigated in connection with this crime and was identified as the driver of the stolen car involved in the shooting. While Montanez did not incriminate petitioner as being involved in the shooting, Montanez described a violent history between petitioner and the victim. Montanez did not incriminate himself in statements to police, he only provided the police with a motive as to why petitioner would shoot Vasquez. Montanez’ statements had no guarantee of trustworthiness and pursuant to Supreme Court authority they were not admissible. Lilly, 527 U.S. at 139, 119 S.Ct. at 1901.

Confrontation Clause violations are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Thus, this court must now consider whether admission of Detective Garcia’s testimony “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007); Moses v. Payne, 543 F.3d 1090, 1100 (9th Cir.2008) (Confrontation Clause); Jackson v. Brown, 513 F.3d 1057, 1084 (9th Cir.2008) (Confrontation Clause).

The Court of Appeal found the above error to be harmless, holding:

Although the court erred in admitting the evidence, the error was harmless. Garcia testified about the longstanding animosity between the Sureños and Norteños, which led to the commission of numerous violent attacks between the gangs. He stated it was not uncommon for a Sureño to attack a Norteño stranger simply because of his gang affiliation and that gang members achieve status and respect from such attacks. Garcia also opined, based upon the circumstances of the shootings, that they were gang-related. Thus, there was ample evidence that defendant, who was a Sur-eño, had a motive to shoot Vasquez simply for being a Norteño.

Opinion at 40-41.

The Court of Appeal relied on the expert testimony concerning gang violence to hold there was sufficient evidence for the jury to find petitioner had a motive to shoot Vasquez. While this evidence does illustrate a motive for the shooting, it could not, standing alone, have led the jury to find that petitioner committed the shooting with deliberation and premeditation. The prosecution’s only evidence to support attempted premeditated murder were Mon-tanez’ statements describing petitioner’s motive for revenge.'

The jury found petitioner guilty on count 4, attempted murder, Cal.Penal Code § 664 and § 187(a). CT at 384. Attempted murder is not a crime of degrees in California, instead a penalty provision is provided for the jury to increase the sentence if the actions were deliberate and premeditated. CT at 384. The trial court instructed the jury that,

“Deliberately” means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.
“Premeditated” means considered beforehand. If you find that the attempted murder was preceded by a clear, deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful deliberate and premeditated murder.

RT at 1315.

The jury made a finding that petitioner’s commission of the offense was deliberate and premeditated. CT at 384. A review of the trial record reveals no other evidence that illustrated petitioner’s premeditation. Without Montanez’ statements, a reasonable jury could not find petitioner guilt of attempted premeditated murder. With respect to the issue of premeditation, the Court of Appeals focused on the wrong issue — the gang inclination for senseless violence as opposed to premeditated violence. Evidence in the case was rife with illustrations of the senseless motive for gang-on-gang violence. Make the wrong response to a gang “greeting” or hand signal, and presto — you’re an enemy to be blown away. Clearly this motive to generally respond in violence says nothing about premeditation concerning the specific violent incident, or at absolute best, is equally indicative of an unpremeditated, reflexive scenario as opposed to a premeditated one. It is classically and senselessly unpremeditated; it arises on the spot. Here, however, the evidence that a relatively longstanding motive for the crime existed— retaliation for the Toaster killing — bespeaks the state of mind of petitioner to search out the victim and kill him, i.e. a premeditated retaliation. The harmless error analysis of the Court of Appeal was unreasonable with respect to the premeditation issue.

The undersigned finds that admission of Detective Garcia’s opinion testimony did have a substantial and injurious effect on the verdict as it was the only evidence the jury considered in reaching its decision as to count 4. Petitioner was found guilty of attempted premeditated murder and sentenced to life in prison pursuant to Cal.Penal Code § 664(a), which provides that if an attempted crime is “willful, deliberate, and premeditated murder ... the person guilty of that attempt shall be punished by imprisonment in the state prison for life without the possibility of parole.” Penal Code section 664(a).

However, the above unreasonableness extends only to the jury finding on premeditation. With respect to attempted murder per se, the reasoning of the Court of Appeal is more than reasonable. As set forth previously, even excising the expert’s reliance on hearsay, there was plenty of evidence that petitioner attempted to murder the victim. The petition should be granted only as to the jury finding of premeditation.

C. Claim 3 — Denial of Dying Declaration

Petitioner argues that the trial court’s exclusion of a dying declaration violated his Fourteenth Amendment right of due process and Sixth Amendment right to present evidence in his own defense. AP at. 35.

Legal Standard

A district court may not review collaterally a state court’s evidentiary ruling unless it violates federal law, either by violating a specific constitutional provision or by infringing upon the due process right to a fair trial. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). The erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense. See DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)).

The exclusion of hearsay statements that are critical to the defense and that bear “persuasive assurances of trustworthiness” may rise to the level of a due process violation. See Chambers, 410 U.S. 284, 302, 93 S.Ct. 1038 (1973); see also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir.2004). A court must ensure that the defendant has a full opportunity to defend himself against the state’s accusations. Chambers, 410 U.S. at 294, 93 S.Ct. at 1045; Chia, 360 F.3d at 1003. That opportunity must not be frustrated by a mechanical application of state evidentiary law. Chambers, 410 U.S. at 302, 93 S.Ct. at 1049; Chia, 360 F.3d at 1006. The state appellate court’s decision must be measured against these clearly established principles of federal law.

In deciding whether the exclusion of the hearsay statements violates due process under Chambers and its progeny, the Ninth Circuit balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia, 360 F.3d at 1004. The court must also give due weight to the state interests underlying the state evidentiary rules on which the exclusion was based. Chia, 360 F.3d at 1006.

But even if exclusion of the evidence amounts to constitutional error, in order to justify federal habeas relief the erroneous exclusion must have had “a substantial and injurious effect” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

As previously mentioned, the prosecution introduced evidence of motive that prior to the shooting of Samuel Vasquez, Vasquez told petitioner he was going to shoot him like he killed Toaster. RT at 786. To rebut this evidence, petitioner attempted to admit evidence that Toaster made a dying declaration that a black man shot him. As Vasquez is not black, but Hispanic, petitioner contends that Vasquez could not have shot him and this would prove that petitioner had no motive to shoot Vasquez. Petitioner contends the evidence was admissible as third party culpability evidence and the courts preclusion of the evidence was not harmless beyond a reasonable doubt. The Court of Appeal agreed with the trial court’s decision in denying the admission of the dying declaration, stating:

In any event, despite defendant’s assertion to the contrary, the evidence was not evidence of third-party culpability because it did not tend to prove that someone other than defendant shot Va-quez. It is immaterial whether Vasquez shot Toaster. The relevant issue is whether defendant believed that Vasquez killed Toaster, which gave defendant a motive to shoot Vasquez in retaliation. Defendant’s offer of proof did not include any evidence that he was aware of Toaster’s dying declaration saying a black man shot him and that, for this reason, defendant did not believe Vasquez when he claimed he had shot Toaster. Accordingly, the court did not abuse its discretion in excluding the evidence pursuant to Evidence Code section 352.

Opinion at 42-43.

The Court of Appeal also noted the trial court has discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” People v. Minifie (1996) 13 Cal.4th 1055, 1070, 56 Cal.Rptr.2d 133, 920 P.2d 1337. The Court of Appeal held that the trial court did not abuse its discretion.

Viewing petitioner’s claim under the factors outlined in Chia establishes that the Court of Appeal’s decision was not an unreasonable application of Supreme Court precedent. See Chia, 360 F.3d at 1004. While the dying declaration may have been capable of evaluation by the jury, the statement did not have significant probative value in petitioner’s favor. The dying declaration involved an incident collateral to petitioner’s case and was not material to petitioner’s defense. Regardless of who shot Toaster, the important issue is what petitioner knew. The killing of Toaster was not the sole evidence of petitioner’s motive for the shootings. Petitioner had motive to shoot Vasquez simply due to his gang affiliation.

The trial court had a significant interest in excluding the dying declaration. Chia, 360 F.3d at 1006. The trial court could reasonably conclude that the probative value of the evidence was substantially outweighed by the probability that its admission would confuse the issues or mislead the jury. Cal. Evidence Code section 352. It cannot be said that the Court of Appeal’s decision was an “objectively unreasonable” application of clearly established federal law. See Williams (Terry) v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 1521, 146 L.Ed.2d 389 (2000). Thus, there is no merit to this claim.

D. Claim k — Discovery Sanction

Petitioner contends that his right to a fair trial was violated due to a discovery sanction where the trial court instructed the jury that a false fact was true and the Court of Appeals unreasonably applied established United States Supreme Court precedent. AP at 45.

Legal Standard

The right to present testimony as part of a defense is not without limitation and “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). In pursuit of the right to present a defense, “the accused, as is required by the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers, 410 U.S. at 302, 93 S.Ct. at 1049. Trial courts therefore may require that trial witnesses be disclosed before trial and may impose sanctions on defendants (including evidence preclusion) in appropriate circumstances when those requirements are violated. Sec Taylor v. Illinois, 484 U.S. 400, 410-16, 108 S.Ct. 646, 653-656, 98 L.Ed.2d 798 (1988) (exclusion of proposed defense witness not timely disclosed); United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (evidence preclusion sanction based on defense failure to comply with pretrial discovery rule to disclose proposed witness’ investigative report did not violate Sixth Amendment).

Habeas relief is usually warranted only if the alleged constitutional errors had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1712, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). See also Fry v. Pliler, supra (“[t]he opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all § 2254 cases”).

On' direct examination by petitioners’s counsel, petitioner’s girlfriend, Claudia Manriquez, testified thát petitioner was at her house on the day of the shootings. RT at 940-942. Manriquez stated that she, petitioner and a friend, Nora Galaviz, left the house at around 5:30 pm to go to the store to pick up a birthday cake and then returned home. RT at 941. Petitioner’s counsel did not ask Manriquez any details about the trip to the store or petitioner’s meeting with Ramiro Montanez in the parking lot. According to the at Court of Appeal:

On cross-examination, the prosecutor asked Claudia a series of questions about defendant’s whereabouts during the trip. Claudia revealed that, when they arrived at the store, defendant stopped to talk to Montanez, who was sitting in the driver’s seat of a large pickup truck in the store’s parking lot. She indicated she and Galaviz entered the store while defendant remained in the parking lot talking to Montanez. When the prosecutor asked her if she saw defendant touch the driver’s mirror on the truck, she replied: “He probably could have leaned on it ... he probably could have touched it.” Claudia asserted she told Stewart, defendant’s investigator, about defendant having seen Montanez, but conceded that she did not tell him that defendant went over to the truck.
Later in the proceedings, the prosecutor told the court that he wished to call investigator Stewart as a rebuttal witness to ask whether Claudia had told him previously about seeing defendant with Montanez. According to the prosecutor, there was no reference to Monta-nez or the pickup truck in the discovery materials he received regarding Stewart’s interview with Claudia on December 13,1999.
At this point, defense counsel revealed that, during her interview by Stewart on December 22, 1999, Claudia had mentioned defendant’s encounter with Mon-tanez.
Calling the omission a “huge problem,” the court stated it intended to sanction the discovery violation by preventing Stewart from testifying that Claudia had told him of the encounter.
At the request of defense counsel, the court held an in camera hearing to learn of counsel’s reasons for not turning over Stewart’s [complete] report to the prosecution. At the hearing, counsel explained that he did not think he had to disclose to the prosecutor this portion of her statement to Stewart because he never intended to have Claudia testify about her observations of Montanez in the truck. He redacted this information from Stewart’s report before giving it to the prosecutor because he believed the evidence was inculpatory in that it showed defendant had a relationship with Montanez.
Following the hearing, the court stated that defense counsel had explained his tactics, and that his decision not to disclose Claudia’s statement to Stewart about defendant speaking with Monta-nez at the grocery store was made in good faith. Nonetheless, the court concluded counsel had violated the reciprocal discovery provisions ... by not disclosing the entirety of the statement made by a witness counsel intended to call at trial. In effect, counsel had “sandbagged” the prosecution, which warranted the sanction of precluding Stewart from testifying that Claudia had timely revealed the information about Montanez to him. In addition, the court stated that it would advise the jurors that Claudia did not mention Montanez and the pickup truck when Stewart interviewed her. The court reasoned that the sanction in effect allowed the prosecutor to impeach Claudia with a prior inconsistent statement, while not forcing counsel to reveal his theory of the case by disclosing the unredacted contents of Stewart’s report.
In accordance with its ruling, the court advised the jurors that they were to consider as conclusively proved the following: “On December 22, 1999, Wilson Stewart interviewed Claudia Manriquez regarding the birthday party and the trip to the store to pick up the cake. She did not tell him of the pickup truck in the parking lot, nor of defendant discussing — talking to the man in the pickup truck.”

Opinion at 25-27.

The Court of Appeal held that petitioner’s attorney violated his discovery obligations and that sanctions were warranted, but the sanctions imposed by the trial court were excessive. Opinion at 29, 31. The undersigned agrees. The Court of Appeal further stated that the error was harmless beyond a reasonable doubt. Id. at 32. Petitioner argues that the Court of Appeal unreasonably applied Supreme Court precedent when finding that the trial court’s error was harmless. AP at 57.

Manriquez’ testimony concerning petitioner’s interaction with Montanez and the truck was important, but as seen below, not dispositive to the defense. Manriquez provided a plausible reason why petitioner’s fingerprints were on the truck, a key piece of evidence linking petitioner to the crimes. The prosecution’s fingerprint witness testified that petitioner’s fingerprints were on driver’s side mirror and the driver’s side door. RT at 452-453. The trial court’s sanction, by undermining Manri-quez’ credibility, hampered petitioner’s defense. The undersigned will assume, for the purpose of argument, that petitioner’s right to put on a defense was violated by the excessive sanctions of the trial court.

However, even if the sanctions were excessive, as noted by the Court of Appeal, the trial court’s sanction was harmless error and the undersigned finds that it did not have a, “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. at 1712. Petitioner presented other alibi witnesses, including Nora Galaviz who testified about petitioner’s meeting with Montanez in the store parking lot. RT at 970-971. While Manriquez’ credibility was hurt by the sanctions she had already been impeached by her employment records. The employment records showed that Manriquez worked approximately five hours on the day of the shootings which meant she could not have been with petitioner all day as she stated. RT at 947-949. It was demonstrated that Galaviz and the other alibi witnesses were either friends or relatives of Manriquez which undermined their credibility.

Petitioner testified in his own defense and attempted to explain why his fingerprints were on the car, even though he claimed to never have been inside it. RT 1019-1020. However, petitioner’s testimony was not credible when he attempted to explain why his fingerprints were on the mirror portion of the driver’s side mirror. The prosecution alleged that petitioner was inside the drivers side of the car and adjusted the mirror. RT at 1019. Petitioner stated that he could have walked up to the driver’s side of the car and then leaned on the car, his hand upside down against the mirror while he spoke with Montanez. Id. Petitioner’s explanation has little persuasive value.

It should also be noted that the disputed testimony can be seen to incriminate petitioner as it puts him with Montanez and the car, the primary reason petitioner’s attorney redacted the information. Any error by the trial court was harmless and petitioner has failed to show any violation that would necessitate habeas relief under Brecht.

E. Claim 5 — Ineffective Assistance of Counsel.

Petitioner argues that if defense counsel’s conduct in redacting the investigator’s report was improper and resulted in the trial court’s sanction, then petitioner received ineffective assistance of counsel. AP at 59.

This claim was denied without a reasoned opinion by any state court. If a state court denies constitutional claims without a reasoned decision, a federal court reviewing a habeas corpus application pursuant to § 2254(a) “ha[s] no basis other than the'record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context.” Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). “While Supreme Court precedent is the only authority that is controlling under AEDPA, we look to Ninth Circuit case law as ‘persuasive authority for purposes of determining whether a particular state court decision is an “unreasonable application” of Supreme Court law.’ ” Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002). Thus, pursuant to Delgado, the Court must conduct an independent review of the record to determine whether the state court’s decision was objectively unreasonable. In Delgado, the Ninth Circuit held that, “Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law.” 223 F.3d at 982; see also Luna, 306 F.3d at 954 (quoting Fisher v. Roe, 263 F.3d 906, 915 (9th Cir.2001) (internal citation omitted) (“We reverse only if ‘a careful review of the record and the applicable case law leaves us with the “firm conviction” that the state court was wrong.’ ”)).

The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a petitioner must show that, considering all the circumstances, counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. To this end, petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. “We strongly presume that counsel’s conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.1990) (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice is found where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.

If petitioner fails to show the challenged action by counsel was prejudicial in that it affected the reliability of the trial process, the claim of ineffective assistance of counsel may be rejected without deciding if counsel’s conduct was deficient. Strickland, 466 U.S. at 697, at 104 S.Ct. at 2069. As previously stated, an independent review of the record shows that the petitioner was not prejudiced by the trial court’s sanction.

F. Claim 6 — Brady Violation

Petitioner also contends that his right to a fair trial was violated by the prosecution’s failure to disclose information of other potential suspects from the California gangs (CAL-GANGS) database. AP at 66.

Legal Standard

The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A so-called “Brady” claim contains three essential elements or components: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 1272, 157 L.Ed.2d 1166 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999)).

The prosecution violates the constitutional duty of disclosure if his omission is sufficiently significant to result in the denial of the defendant’s right to a fair trial. Agurs, 427 U.S. at 106-107, 96 S.Ct. at 2399. The duty exists regardless of whether a specific request has been made by the defense, or whether the suppression was intentional or inadvertent. Id. at 110, 96 S.Ct. at 2400.

Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. at 682, 105 S.Ct. at 3383. A mere reasonable possibility is insufficient to establish prejudice. Strickler, 527 U.S. at 291, 119 S.Ct. at 1953.

If the prosecution is uncertain about the materiality of information within its possession, it may submit the information to the trial court for an In Camera inspection and evaluation. Agurs, 427 U.S. at 106, 96 S.Ct. at 2399.

The Court of Appeal noted the following facts:

On October 15, 1999, officers interviewed Ramiro Montanez, who had been seen driving the pickup truck involved in the Vasquez shooting approximately one or two hours before the incident. Montanez stated that he observed an individual known to him as “Killer” or “Matone” near the pickup truck in the location where it was found abandoned after the shooting. Montanez knew Ma-tone’s first name as “Velasquez” and he was 26 years of age. Montanez also said that Matone was from Long Beach and had not been in Stockton very long. He had a “VST” tattoo on his neck, another one inside his mouth, a “1” tattooed under one eye, and a “3” under the other.
In March 2000, defense counsel informally requested discovery of information counsel believed would lead to Matone’s identity. The prosecution provided counsel with a memorandum summarizing information from a law-enforcement computer program referred to as “CAL-GANGS,” concerning 16 gang members whose characteristics most closely matched those of Matone. But none of the 16 had all of the characteristics described by Montanez.
Defendant moved to compel the prosecution to provide him with photographs and fingerprints of the 16 gang members. Initially, the court ordered the prosecution to provide a photograph and fingerprints of one person on the list, as well as the names of the other gang members and pertinent law enforcement agencies for defense counsel to contact. However, the prosecutor moved for reconsideration of the court’s order on the ground that direct discovery of the CAJL-GANGS information was inappropriate because it violated an agreement between the database provider and the Stockton Police Department. Following an in camera hearing, the court stayed the order.
At the in camera hearing, an administrator of the CAL-GANGS database told the court CAL-GANGS is a confidential intelligence system that is required to be shielded from public access. This is so since releasing the names of those in the database could make it harder for police to track gang activities because, once gang members learn of the confidential system and discover they are in it, they probably would change their identifying characteristics. Furthermore, disclosure of the information to a gang member’s attorney could lead to violence if the information was about a rival gang and was leaked to the accused.
The administrator stated that his search revealed there were only 12 gang members who had “VST” tattoos on their necks and, of those, only 6 belonged to the Vickystown gang. None of those six had a first, middle, or last name of Velasquez. Four were between the ages of 21 and 30, but none of the four had a nickname of “Killer” or “Matone,” or were from Stockton. No one had a tattoo inside his mouth. Of the Vickystown gang members between the ages of 21 and 30 with a “VST” tattoo, one was from Long Beach and had three dots under his eye. However, he was 24 years old and had a moniker of “Criminal.”
The court ruled that defense counsel was not entitled to the information “as a statutory matter” and, as for defendant’s constitutional claim, the information was not material in part due to the many dissimilarities between the person described by Montanez and those referenced in the CAL-GANGS database. Defendant renewed his motion for discovery after the original complaint was dismissed and the case was refiled, but the court denied the motion again.

Opinion at 19-21.

Petitioner maintains that if he had access to the CAL-GANGS database, he may have been able to discover the identity of Matone, who may have had access to the truck and this information may have provided reasonable doubt. The Court of Appeal rejected petitioner’s argument stating:

Defendant’s arguments “are speculative and fail to point out, as required by Bagley, how production of these materials would have created a reasonable probability of a different result.” (Downs v. Hoyt (9th Cir.2000) 232 F.3d 1031, 1037.) Given the speculative value of the requested evidence, and the government’s legitimate interest in protecting confidential information in the CAL-GANGS system, the trial court did not abuse its discretion in denying defendant’s request for discovery. (People v. Superior Court (Barrett), supra, 80 Cal.App.4th [1305] at p. 1316, 96 Cal.Rptr.2d 264 [trial court has broad discretion to protect against the disclosure of information that might violate a legitimate governmental interest].)

Opinion at 24.

In this case, the prosecution properly submitted to the trial court for In Camera evaluation the information from the CAL-GANGS database. The trial court was in the best position to decide if the information in CAL-GANGS should be disclosed to petitioner. See United States v. Gardner, 611 F.2d 770, 774 (9th Cir.1980). The CAL-GANGS administrator stated several legitimate reasons why the information in the database needed to remain confidential yet still provided the trial court with the CAL-GANGS information relevant to petitioner’s case.

Petitioner’s argument relies on a great deal of speculation that fails to rise to a due process violation. Petitioner has not shown that the evidence would even have been favorable to his defense much less that prejudice ensued. Banks, 540 U.S. 668, 124 S.Ct. 1256. Assuming that petitioner could prove that this other gang member, Matone, was in the truck, it does not aid in petitioner’s defense. Petitioner was identified by several witnesses as the shooter and his fingerprints were in the truck. Showing that Matone was also in the truck would open the possibility of another accomplice but does not exonerate petitioner. Accordingly, the state court’s determination of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

G. Claim 7 — Juror Replaced Without Instruction

Petitioner contends that his right to due process was violated when an alternate juror was substituted during deliberations and the trial court failed to instruct the jury to begin its deliberations anew. Petitioner’s State Appellate Brief at 57.

Legal Standard

A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir.1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986). The standard of review for a federal habeas court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted).” Estelle v. McGuire, 502 U.S. at 68, 112 S.Ct. at 480. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving “fundamental fairness.” Id. at 73, 112 S.Ct. at 482. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id. at 73, 112 S.Ct. at 482.

Shortly after the jury retired for deliberations it requested a read back of certain testimony but when the jury assembled in the courtroom one of the jurors was excused for child care reasons. RT at 1333-1337, 1348-1349. Before excusing the juror, the trial court advised the jury: “If I have to substitute somebody in, I will instruct you that you must discard any tentative conclusions you have reached and start over again from square one.” RT at 1348. The trial court stated to the jury again: “I will be telling you to disregard any tentative conclusions you’ve made but perhaps there’s some things that you can work on and at least be thinking about until we can seat the alternate.” RT at 1349. However, when the alternate juror was seated, the trial court neglected to tell the jury to disregard their previous conclusions and begin anew. RT at 1352.

Petitioner argues that he did not receive his constitutionally guaranteed right to a trial with all twelve jurors engaged in all of the jury’s deliberations. Petitioner relies largely on California cases that discuss the replacement of jurors, but the Court of Appeals rejected this argument:

As we have noted, 11 of the jurors were told they would need to disregard their prior conclusions and begin their deliberations anew when the 12th juror was replaced with the alternate juror. Not privy to this advisement, the alternate juror was instructed with the rest of the jurors as follows: “The People and defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor that decision.” (See CALJIC No. 17.40.) Under the circumstances, reasonable jurors would have interpreted this instruction to compel them to commence deliberation anew when the alternate was seated.
The record reflects that the jurors deliberated for no more than six hours before they began deliberations with the alternate juror, and that none of the testimony was read back until the alternate was seated. Thereafter, the jury spent approximately 11 hours reviewing testimony and deliberating before it reached its verdict. In other words, after the alternate was seated, the jury spent almost twice as much time together than before the substitution. This implies that the jury did begin its deliberations anew when the alternate was seated.

Opinion at 45-46.

The Ninth Circuit has held that CaLPenal Code § 1089 does not violate constitutional rights and the statute “preservefs] the ‘essential feature’ of the jury required by the Sixth and Fourteenth Amendments.” Miller v. Stagner, 757 F.2d 988, 995 (9th Cir.1985). Failure to give an instruction which might be proper as a matter of state law does not amount to a federal constitutional violation. Id. at 993. However, petitioner has cited no case nor has this court found Supreme Court authority requiring that a specific instruction be given to the jury after an alternate has been substituted for a deliberating juror. In Claudio v. Snyder, 68 F.3d 1573, 1577 (3rd Cir.1995), the Third Circuit suggested that such an instruction is not constitutionally compelled. See also Peek v. Kemp, 784 F.2d 1479, 1484-85 (11th Cir.1986); U.S. v. Evans, 635, F.2d 1124, 1128 (4th Cir.1980).

The Court of Appeal considered if the trial court’s failure to give such an instruction prejudiced the petitioner and found it to be harmless error as, “it is not reasonably probable that defendant would have obtained a more favorable result if the court had given the required instruction.” Opinion at 47. The record shows that the trial court gave the proper instruction several times during the course of the trial and the jury deliberated nearly twice as long after the new juror was added. In light of Miller and the lack of Supreme Court authority on the issue, the Court of Appeal’s ruling is not an unreasonable application of federal law.

H. Claim 8 — Prosecutorial Misconduct

Petitioner maintains that he was deprived of a fair trial when in closing arguments the prosecution made a reference to petitioner’s previous criminal activity in violation of the trial court’s ruling that precluded such references. AP at 72-73.

Legal Standard

Success on a claim of prosecutorial misconduct requires a showing that the conduct infected the trial with unfairness so as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109, 97 L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). The conduct must be examined to determine “whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury’s discharge of its duty to judge the evidence fairly.” United States v. Simtob, 901 F.2d 799, 806 (9th Cir.1990).

The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). According to the Supreme Court, “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Thus, the federal habeas court must distinguish between “ordinary trial error of a prosecutor and that sort of egregious misconduct ... amounting] to a denial of constitutional due process.” Id. at 218-20, 102 S.Ct. at 947. Improper prosecutorial argument violates rights under the federal constitution if it “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Don-nelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). It “is not enough that the proseeutor[’]s[ ] remarks were undesirable or even universally condemned.” Id. (internal quotation marks omitted). Allen v. Woodford, 395 F.3d 979, 997-998 (9th Cir.2005).

Petitioner contends that his due process rights were violated during closing arguments when the prosecution referred to petitioner’s criminal activity in violation of the state trial court’s ruling precluding the prosecution from presenting such evidence. Petitioner maintains this was reversible error. The statement by the prosecutor at issue comes in the context of defense counsel’s closing arguments. Petitioner’s counsel suggested that simply because there was evidence petitioner associated with gang members did not mean that petitioner was involved in criminal activity. RT at 1231. The prosecution objected and asked to approach the bench. RT at 1231. The trial court overruled the objection and denied the request to approach the bench. Id. The trial court told the prosecutor that he would “have a chance to respond.” Id. The specific statement at issue occurred when the prosecutor responded, “I can’t, [be]cause you’ve kept it out.” Id. The prosecutor made this statement in the presence of the jury and the trial court instructed the jury to ignore the comment. RT at 1232. The jury left the court room at which time the trial court admonished the prosecutor for his misconduct. Id.

Petitioner argues that the prosecutor’s remark suggested to the jury that the petitioner was involved in past criminal activity but the prosecutor was prevented from presenting this evidence. AP at 75. Petitioner believes that the implied suggestion that the petitioner was involved in criminal activity influenced the jury’s verdict and was a deprivation of due process.

Petitioner’s claim has no merit. The prosecutor made a single comment. The prosecutor did not refer to any specific incident or criminal activity, rather he stated that he could not properly respond to defense counsel’s closing argument. There was no indication that the jury understood what the statement referred to and the trial court immediately instructed the jury to disregard the comment. The prosecutor’s isolated misstatement did not deprive petitioner of a fair trial. See Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir.1995) (petitioner not entitled to habeas relief based on a single improper comment by prosecutor).

Regardless of the prosecutor’s statement, the prosecution was permitted to introduce evidence of petitioner’s gang involvement. Police officers testified at trial that petitioner had acknowledged his gang affiliation and another officer testified petitioner was present when an associate of the petitioner shot a rival gang member in 1996 and petitioner was later found in possession of the firearm. RT at 575. There was strong evidence that the two shootings of the instant case were gang related and petitioner had gang tattoos. Looking in the context of the entire trial, the prosecutor’s comment was not the only mention of gang or criminal activity. With all this evidence a reasonable juror would clearly realize there was a gang component to this crime and petitioner was involved in gang activity to some extent.

Any error resulting from the prosecutor’s statement was harmless and not so egregious to cause a denial of constitutional due process. Smith, 455 U.S. at 219, 102 S.Ct. at 947. The one statement by the prosecutor did not have such an effect and therefore, this claim should be denied.

I. Claim 9 — Jury Instructions

Petitioner contends that the trial court gave improper jury instructions and should have instructed the jury that it could find petitioner guilty of a'lesser degree of attempted unpremeditated murder. AP at 61.

Legal Standard

A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 481-482, 116 L.Ed.2d 385 (1991). Nor does the fact that a jury instruction was inadequate by Ninth Circuit direct appeal standards mean that a petitioner who relies on such an inadequacy will be entitled to habeas corpus relief from a state court conviction. See Duckett v. Godinez, 67 F.3d 734, 744 (9th Cir.1995) (citing Estelle, 502 U.S. at 71-72, 112 S.Ct at 482).

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72, 112 S.Ct. at 482; Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (“ ‘[I]t must be established not merely that the instruction is undesirable, erroneous or even “universally condemned,” but that it violated some [constitutional right].’ ”).

Petitioner was charged with the attempted premeditated murder of Samuel Vasquez pursuant to California Penal Code section 664(a). CT at 25. The trial court instructed the jury with California Jury Instructions — Criminal (CALJIC) No. 8.66 on the elements of attempted murder. RT at 1314. The trial court also used CALJIC No. 8.67 to instruct the jury to find if the crime was willful, deliberate and premeditated. The jury was also instructed on the lesser offense of attempted voluntary manslaughter. RT at 1319-1323. The jury found petitioner guilty of attempted murder and made a finding that the offense was deliberate and premeditated.

Petitioner argues that the jury should have been instructed with a modified version of CALJIC No. 8.71 to address attempted murder. However, the crime of attempted murder is not divided by degrees in California. Instead Penal Code section 664(a) uses a penalty provision when the jury finds special circumstances have been met. Petitioner argues that attempted murder should be divided in degrees and the failure to do so is in violation of established federal law, namely Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court held in Apprendi that, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Ap-prendi 530 U.S. 466 at 490, 120 S.Ct. at 2362-2363.

The Court of Appeal held that there was no error in failing to instruct the jury as petitioner claimed was required, as the issuing of CALJIC 8.66 and 8.67 adequately eliminated any prejudice to petitioner. Opinion at 48. The Court of Appeal stated that the jury instructions were compatible with Apprendi:

Consequently, the instructions advised the jurors that they first had to determine whether defendant committed attempted murder. Only if they found defendant guilty of attempted murder did the jurors have to decide whether that attempted murder was premeditated. And if they were unable to find beyond a reasonable doubt that the crime was premeditated, the jurors were directed to find the premeditation allegation untrue.

Opinion at 49.

With respect to petitioner’s argument that California Penal Code section 664(a) should be separated into degrees, it is well-established that it is left to state legislatures and courts, rather than the federal courts, to define the scope and nature of state law crimes. See Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977) (“It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government [cit. orñ.], and that we should not construe the Constitution so as to intrude upon the administration of justice by the individual States”); Martin v. Ohio, 480 U.S. 228, 232, 107 S.Ct. 1098, 1101, 94 L.Ed.2d 267 (1987) (citing Patterson and reiterating “the reluctance of the Court to disturb a State’s decision with respect to the definition of criminal conduct”). Hence, “it is the sole responsibility of the States to define the elements of their criminal offenses.” Jeffries v. Blodgett, 5 F.3d 1180, 1194 (9th Cir.1993) (citing Martin, supra). The Court of Appeal ruled there was no error in the jury instructions under state law and petitioner has failed to show that the jury instruction was so egregious as to violate due process or be in violation of federal law.

Petitioner argues that the jury should have had the opportunity to decide between varying degrees of attempted premeditated murder. California law already allows for this with CALJIC No. 8.67, which gives the jury the option of finding that attempted murder was premeditated or not. Petitioner does not state how his proposed jury instruction is any different then current California law. Consequently, the state court’s determination of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

J. Claim 10 — Sentencing Errors

Finally, petitioner contends that the imposition of consecutive sentences based upon factual findings made by the trial court by a preponderance of the evidence violates Apprendi and Blakely. AP at 80-81.

Legal Standard

This claim was denied without a reasoned opinion by any state court, so pursuant to Delgado, this Court must conduct an independent review of the record to determine whether the state court’s decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). In Apprendi 530 U.S. at 490, 120 S.Ct. at 2362-2363, the Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington, 542 U.S. 296, 303-304, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), the Supreme Court held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

In Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 868, 166 L.Ed.2d 856 (2007), the Supreme Court struck down California’s sentencing plan on the basis that it violated Apprendi’s “bright-line rule,” i.e., that “[ejxcept for a prior conviction, ‘any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” The Supreme Court found that the middle term described in the California statutes constituted the relevant statutory maximum, and that because aggravating circumstances were found by a judge and not a jury, and need only be established by a preponderance of the evidence, the sentencing scheme violated Apprendi. Cunningham, 549 U.S. 270, 127 S.Ct. at 873. In 2005, the Ninth Circuit held in Schardt v. Payne, 414 F.3d 1025 (9th Cir.2005), that Blakely, “does not apply retroactively to a conviction that was final before that decision was announced.” Schardt, 414 F.3d at 1038.

Petitioner’s claim arises out of the determinate sentences set by the trial court. The trial court sentenced petitioner to 13 years and four months that was imposed consecutively to a 10 year determinate term and an indeterminate life term with the possibility of parole. AP at 80. The trial court imposed consecutive terms after finding that the shootings were separate incidents in time and place from each other, the victims were particularly vulnerable and petitioner felt no threat from three of the victims. RT at 1431. Petitioner argues that the imposition of the consecutive sentences were based on the trial court’s findings and not by a jury beyond a reasonable doubt. AP at 80.

Petitioner was sentenced on January 29, 2001 and the Court of Appeal affirmed petitioner’s conviction on August 20, 2002. Petitioner’s conviction and sentence became final on January 28, 2003, ninety days after the California Supreme Court denied petitioner’s petition for review on October 30, 2002. Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (“State convictions are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.”).

The Supreme Court decided Blakely on June 24, 2004, nearly a year and a half after petitioner’s case become final and pursuant to Schardt, Blakely cannot be applied retroactively. The Ninth Circuit also held that Cunningham, did not announce a new rule of constitutional law. Butler v. Curry, 528 F.3d 624, 639 (9th Cir.2008). Instead, Cunningham applied Blakely to the specific California sentencing plan. Id. Thus, Blakely cannot be applied to petitioner’s case.

Furthermore, the Supreme Court’s decisions in Apprendi, Blakely, and Cunningham did not indicate that the Supreme Court’s holdings would even apply to a state judge’s authority to impose consecutive sentences. Whether or not Blakely applies to a state’s consecutive sentencing scheme is an unresolved question. See, e.g., State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007) (holding it does apply); State v. Kahapea, 111 Hawai'i 267, 278-80, 141 P.3d 440 (2006) (holding it does not). In addition, several circuits have held that a judge may impose consecutive sentences based on facts not found by the jury. See United States v. Hicks, 389 F.3d 514, 531-32 (5th Cir.2004); United States v. Pressley, 345 F.3d 1205, 1213 (11th Cir.2003); United States v. Lott, 310 F.3d 1231, 1242-43 (10th Cir.2002); United States v. Hollingsworth, 298 F.3d 700, 702 (8th Cir.2002); United States v. Noble, 299 F.3d 907, 909-10 (7th Cir.2002); United States v. White, 240 F.3d 127, 135 (2d Cir.2001). In sum, there is no established Supreme Court authority on the subject of Blakely’s et al, application to consecutive sentences under state law.

It is true that in United States v. Fi-field, 432 F.3d 1056 (9th Cir.2005), the Ninth Circuit considered a Blakely challenge to consecutive sentencing under the federal guidelines. The Ninth Circuit denied the claim but did not hold Blakely inapplicable in that context. The Fifield court considered how the federal sentencing guidelines actually functioned. “Because ... a district court need not find any particular fact to impose consecutive sentences,” the court concluded, “the imposition of consecutive sentences does not violate the Sixth Amendment.” Id. at 1067. However, this federal guidelines case does not mandate a conclusion that state sentencing schemes which permit a judge to impose consecutive sentences for multiple charges is violative of Apprendi et al. Ap-prendi’s focus is on the maximum penalty for a given charge — singular. The Supreme Court has never held that in determining the cumulative penalty for separate charges involving separate incidents, which could theoretically be brought separately, one has a Sixth Amendment right to concurrent sentencing absent the jury finding the basis for consecutive sentencing. Such a rule would amount to making ministerial the duties of a judge at sentencing, and takes Apprendi beyond its logical basis.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be granted in part on the Confrontation Clause issue. The case should be sent back to state court for resentencing only on attempted murder without a finding of premeditation.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

Dated: November 20, 2008. 
      
      . Detective Reyes testified that Edgar’s mother was concerned about gang retaliation and he may have kept the contact information secret for the safety of the witness but he could not remember. RT at 91-93.
     
      
      . Detective Reyes testified at trial that Edgar identified Montanez as the driver but was unable to identify the passenger from several photo arrays. RT at 635.
     
      
      . Edgar was a intended to be a prosecution witness had he been available.
     
      
      . Toaster’s real name was Juan Martinez.
     
      
      . Ramiro Montanez was the driver of the pick up truck petitioner rode in immediately following the shooting and the person petitioner was with on the date of his arrest several weeks after the shooting. Montanez pled guilty to receiving stolen property with respect to the pick up truck.
     
      
      . Petitioner testified that he knew of Toaster, but had never been told that Samuel Vasquez had killed Toaster. Petitioner also testified that he did not know Samuel Vasquez until the trial began. RT at 990-991.
     
      
      .The trial court ruled that revealing Monta-nez’ identity would be too prejudicial to petitioner but allowed the prosecution to elicit that Detective Garcia’s source was a gang member. RT at 738.
     
      
      . In 2004, the United States Supreme Court held that the Confrontation Clause bars the state from introducing into evidence out-of-court statements which are testimonial in nature unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, for purposes of the AEDPA, this court must look to federal law as it existed at the time of the final state court decision on direct review (here October 30, 2002) in determining whether the petition should be granted. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). The holding in Crawford is not retroactive to cases on collateral review. Whorton v. Bockt-ing, 549 U.S. 406, 127 S.Ct. 1173, 1184, 167 L.Ed.2d 1 (2007). Therefore, the decision in Crawford does not apply because it was decided after petitioner’s trial and appeal. Winzer v. Hall, 494 F.3d 1192, 1194 (9th Cir.2007).
     
      
      .A recent case, Slovik v. Yates, 545 F.3d 1181 (9th Cir.2008) without analyzing the post-AEDPA cases on the subject of harmless error, utilized the Chapman “beyond a reasonable doubt” standard for its Confrontation Clause harmless error analysis. This case clearly is contrary to Supreme Court and Ninth Circuit post-AEDPA and post-Fry case law with respect to the correct harmless error standard.
     
      
      . Samuel Vasquez testified at trial as a prosecution witness but was uncooperative. He acknowledged that he was shot but said he did not remember any details of the shooting, he did not remember any of the information he told police and he did not remember anything he said at the preliminary hearing. Vasquez also denied knowing or shooting at petitioner or being assaulted by petitioner.
     
      
      . Murder is the unlawful killing of a human being with malice aforethought. RT at 664.
     
      
      . Petitioner attempted to admit a police report containing a statement from a police officer who was with Toaster after he was shot. Toaster provided his name and address and said a black man shot him before he lost consciousness.
     
      
      . California Penal Code § 1089 states in part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
     
      
      . The section provides that if an attempted crime is “willful, deliberate, and premeditated murder ... the person guilty of that attempt shall be punished by imprisonment in the state prison for life without the possibility of parole.” Penal Code section 664(a).
     
      
      . The jury was instructed: "In order to prove attempted murder, each of the following elements must be proved: Number one, a direct but ineffectual act was done by one person towards killing another human being; And, number two, the person committing the act harbored express malice aforethought, namely a specific intent to kill unlawfully another human being.” RT at 1314.
     
      
      . The jury was instructed: "If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder ... [¶] To constitute willful, deliberate and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being ... [¶] You will include a special finding on that question in your verdict using a form that will be supplied fro that purpose.” RT at 1315-1316.
     
      
      .Petitioner wants to create a jury charge that instructs, "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of attempted murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the attempted murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.”
     
      
      . The Response from the Attorney General calculated the determinate sentence to equal 12 years and eight months. Attorney General's Response at 63.
     
      
      . California sentencing rules allow consecutive sentences if the crimes are committed at different times or different places rather than just one single period of criminal behavior. Cal. Rules of Court 4.425(a)(3). In addition, any other circumstance in aggravation or mitigation can be used to decide to impose consecutive terms. Id.
      
     
      
      . On March 17, 2008, the Supreme Court granted a petition for a certiorari to address the question, "Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.” See Oregon v. Ice, — U.S.-, 128 S.Ct. 1657, 170 L.Ed.2d 353 (2008). A ruling is still pending, but oral arguments were heard on October 14, 2008.
     