NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JAN 28 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSE LUNA, No. 10-55711

Petitioner - Appellant, D.C. No. 2:07-cv-00148-DMG-

AGR

v.

A. J. MALFI, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted July 7, 2014 Pasadena, California

Before: NOONAN and BERZON, Circuit Judges, and SABRAW, District Judge.**

California state prisoner Jose Luna appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 petition. We review de novo a district

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Dana M. Sabraw, District Judge for the U.S. District Court for the Southern District of California, sitting by designation. court’s decision to deny a § 2254 petition, see Emery v. Clark, 643 F.3d 1210,

1213 (9th Cir. 2011), and we affirm.

1. Luna asserts he was deprived of due process when the attorney

prosecuting his case took the stand during his trial and gave testimony that

supported the credibility of a witness who, having previously identified Luna as

one of two shooters who killed one man and injured another, later recanted and

refused to identify Luna in court. We hold that, even assuming, for the sake of

argument, a violation of clearly established law, see Parker v. Matthews, 132 S. Ct.

2148 (2012) (per curiam), Luna has not shown the prosecutor’s testimony “had

substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks

omitted).

First, Detective Lowe, who conducted Alarcon’s pretrial interviews, testified

as to Alarcon’s prior identifications of Luna and Picado as the shooters. Lowe

testified that Alarcon was “positive” when he first identified Luna from a

photograph array and selected Alarcon’s photograph “almost immediately.” The

photograph of Luna as identified by Alarcon was shown to the jury, and Lowe

testified that the writing beneath the photograph, which stated, “I’m positive seeing

him shooting some kind of semi-automatic gun at the Black guys,” was Alarcon’s

2 writing. Lowe also testified that Alarcon’s signature was beneath Luna’s

photograph and that Alarcon had drawn the circle around Luna’s photograph. In

addition, Lowe testified that Alarcon had complained to the government that his

family was threatened and said that he was afraid to testify against Luna and

Picado.

Second, Alarcon testified and, although he recanted his earlier

identifications, admitted that the signature beneath Luna’s photograph was his

signature. We agree with the California Court of Appeal that Alarcon’s “complete

denial at trial was inherently unbelievable” in the face of Lowe’s testimony and

Alarcon’s acknowledged signature beneath Luna’s photograph.

Finally, when prosecutor Enomoto took the stand, he did not testify as to

Alarcon’s critical original identification of Luna, as he was not present during that

interview. Rather, Enomoto testified only as to the later interview, during which

Alarcon confirmed his earlier identifications. And, as to this subsequent interview,

which only corroborated Alarcon’s earlier, documented identification, Enomoto

simply repeated Alarcon’s own statements at the second interview, testifying that

Alarcon “said he was positive about the previous identifications he made from the

photographs;” that when asked if he was “sure” about those identifications,

3 Alarcon had said “yes”; and that Alarcon did not express any hesitation about his

earlier identifications and was instead “unequivocal about his previous ID’s.”

Under the circumstances, we conclude that Enomoto’s testimony likely had

little, if any, impact on the jury’s assessment of Alarcon’s earlier out-of-court

identification, and thus did not have a “substantial and injurious effect or

influence” on the verdict. Brecht, 507 U.S. at 637 (internal quotation marks

omitted).

2. Luna also contends that he received ineffective assistance of counsel

because his lawyer failed to object to the prosecutor’s testimony before it began.

We reject this claim, as well.

Enomoto was called to the stand principally to testify that, at the interview

which Enomoto attended, Alarcon said that someone known as “Wicked” was one

of the individuals with a gun; “Wicked” was the nickname of a different individual,

not Luna or his co-defendant. In his testimony, Lowe had denied that Alarcon said

“Wicked” had a gun, and counsel for both defendants clearly agreed with the

prosecution that Lowe’s incorrect testimony needed to be corrected. Because

Enomoto’s central testimony contradicted Lowe’s testimony, it had the potential to

undermine Lowe as a witness generally, and thus to benefit Luna. Indeed, Luna’s

counsel actively sought Enomoto’s testimony, indicating at one point that he

4 himself would call Enomoto to the stand and refusing to enter into a stipulation

that Alarcon said that “Wicked” had the gun, which would have rendered

Enomoto’s testimony unnecessary.

The particular part of Enomoto’s testimony to which Luna now objects – the

repetition of Alarcon’s confirmation of his prior identification of Luna – was

simply a recounting of the rest of the same interview at which Alarcon had

mentioned “Wicked,” and so fairly included to provide the jury with a complete

picture of that interview. The California Court of Appeal’s ruling that defense

counsel likely had a tactical reason for not objecting before Enomoto took the

stand, and that counsel’s performance therefore was not deficient, was thus a

reasonable application of clearly established Supreme Court law. 28 U.S.C.

§ 2254(d)(1); Harrington v. Richter, 131 S. Ct. 770, 788 (2011).

AFFIRMED.

Judge NOONAN concurs in the judgment.

5

FILED

Luna v. Malfi, No. 10-55711 JAN 28 2015

MOLLY C. DWYER, CLERK

SABRAW, District Judge, concurring: U.S. COURT OF APPEALS

I concur in the memorandum disposition. I write separately to highlight two

matters that further explain the prosecutor’s testimony and why Luna is not entitled

to habeas relief.

First, the prosecutor’s testimony was neither planned nor volunteered; rather,

it arose in response to Detective Lowe’s unexpected disavowal of Alarcon’s

statement that someone other than Luna and Picado, i.e., “Wicked,” was seen with

a gun around the time of the shooting. Seizing on the opportunity, Luna’s counsel

made clear he would not stipulate that Alarcon mentioned “Wicked” had a gun: “I

won’t stipulate those things were said. I’m going to call Mr. Enomoto to the

stand.” That was a principled tactical decision, as testimony by Enomoto about

“Wicked” would accentuate the potentially exculpatory evidence that “Wicked”

was the other gunman, not Luna, and it would discredit Lowe’s testimony on that

point. The prosecutor’s testimony was therefore not only invited, but essentially

forced by Luna’s lawyer. See Darden v. Wainright, 477 U.S. 168, 182 (1986) (“the

idea of ‘invited response’ is used not to excuse improper comments, but to

determine their effect on the trial as a whole”).

Second, Alarcon’s pretrial identifications were objectively credible and

1 consistent with all of the evidence. To start, Alarcon’s pretrial identification of

Luna as the one who shot the “semi-automatic at the Black guys” was corroborated

by the trial testimony of the surviving victim, who identified Luna as one of the

shooters. The surviving victim also testified that Picado shot him with a revolver.

That testimony was consistent with Alarcon’s pretrial statement that Picado used a

revolver during the shootings, including when he shot and killed one of the

victims.

Alarcon’s pretrial identifications also were inherently unequivocal, as he

actually knew Luna and Picado – they are “cousins or [related] by marriage” to

Alarcon’s wife, knew the members of the gang from prior contacts, saw the

shootings, and memorialized his identifications by documenting and signing the

photographs of Luna and Picado. Detective Lowe testified to these facts after

Alarcon recanted at trial. A gang expert further explained that witnesses in gang

cases commonly recant due to threats. Thus, as the California Court of Appeal

stated, Alarcon’s denial at trial of his earlier identification of Luna was “inherently

unbelievable” under the circumstances.

Luna was at the party when the brawl broke out between his gang and the

“Black guys.” That was undisputed. The evidence also established that Luna

possessed the .380 caliber semi-automatic handgun that fired the rounds at the

2 crowd. That gun was found at his feet, seven weeks after the shooting, and the

prosecutor highlighted this fact during his rebuttal closing argument. The gun had

four live rounds in it when recovered from Luna. The other two rounds – the gun

having a six round capacity – were found expended at the crime scene as evidenced

by discarded shell casings. Alarcon’s pretrial statement that Luna had the semi-

automatic handgun that was fired at, but missed, “the Black guys,” was consistent

with the ballistics evidence, which established that the shell casings recovered from

the scene were fired from that gun and the bullets recovered from the victims did

not come from that gun.

The jury made true findings consistent with that evidence, that Luna

“personally and intentionally discharged a firearm” but did not hit anyone. The

jury also credited the evidence that Picado shot at and hit his targets, finding

Picado “personally and intentionally discharged a firearm and caused bodily harm

or death.”

To establish Luna’s guilt the prosecution did not have to prove that Luna

fired the fatal shots or even that he fired the shots that injured the other victim.

Under the natural and probable consequences theory advanced by the State, the

prosecutor only needed to establish that Luna committed one of the “target

offenses,” and that murder or attempted murder was the natural and probable

3 consequence of that offense. Under the natural and probable consequences theory,

“an aider and abetter is guilty not only of the offense he or she intended to facilitate

or encourage [i.e., the target offense], but also any reasonably foreseeable offense

committed by the person he or she aids and abets.” People v. Gonzalez, 52 Cal. 4th

254, 296 (2011) (citing People v. Prettyman, 14 Cal. 4th 248, 261 (1996)). The

target offenses defined for the jury included assault with a firearm and negligent

discharge of a firearm. Firing a gun at a group of people satisfies the target

offenses of assault with a firearm and negligent discharge of a firearm, the natural

and probable consequences of which are murder and attempted murder.

Finally, the prosecution’s theory of liability was tied together by its gang expert,

who testified that gang members usually are armed when they go out in a group

and they defend each other. He testified that an argument of the kind that occurred

in this case often escalates into a shooting where people are injured or killed. And

that is exactly what happened.

The testimony of the gang expert, combined with the documentation of

Alarcon’s pretrial identification of Luna and corroboration by Detective Lowe, the

identification of Luna at trial by the surviving victim, the identification of Picado

by the surviving victim as the one who shot him with the revolver, the ballistics

evidence, and the discovery of the .380 semi-automatic handgun used at the scene

4 at Luna’s feet, was strong evidence of guilt. All of the evidence was consistent

with, and corroborated, Alarcon’s pretrial identifications, which, standing alone,

were solid given his prior knowledge of both shooters. In light of the evidence, I

have no doubt as to the harmlessness of the prosecutor’s testimony in this case. I

agree with the California Court of Appeal that the effect of the prosecutor’s

testimony, when taken in context, was “negligible.” I therefore concur that, even

assuming, without deciding, a violation of clearly established law, the prosecutor’s

conduct did not have a “substantial and injurious effect” on the jury’s verdict.

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

5