(HC) Spencer-Hayes v. Spearman

• Court: District Court, E.D. California
• Decided: October 30, 2020
• Docket: 1:20-cv-00734
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JARROD ERNEST SPENCER-HAYES, ) Case No.: 1:20-cv-00734-NONE-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DENY PETITION FOR WRIT OF HABEAS 13 v. ) CORPUS ) 14 M. SPEARMAN, ) [THIRTY-DAY OBJECTION DEADLINE] 15 Respondent. ) ) 16 )

17 Petitioner is currently serving an aggregate prison term of life without possibility of parole, 18 plus 25 years to life for a conviction of first degree murder, assault with a firearm, and various gang 19 and firearm allegations. He filed the instant habeas petition challenging the conviction and sentence. 20 As discussed below, the Court finds the claims to be without merit and recommends the petition be 21 DENIED. 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 The Court adopts the Statement of Facts in the California Court of Appeal, Fifth Appellate 24 District’s (“Fifth DCA”) unpublished decision1: 25 At around 1:45 a.m., on May 25, 2013, officers responded to a shooting outside of a gas station and liquor store in Fresno. There they found Aaron Foster dead from multiple 26 27 1 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), 28 (e)(1). Therefore, the Court will adopt the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 1 gunshot wounds. Witnesses at the scene explained that appellant approached Foster and shot him in the head. Several additional shots were fired, one of which struck a nearby 2 witness. Witnesses did not see any argument or fighting between appellant and Foster, and did not believe Foster ever saw the gun. 3

4 Appellant was charged with murder and assault with a firearm, along with multiple firearm and gang-related enhancements. He proceeded to trial where the proceedings 5 were bifurcated to deal with the criminal conduct and firearm enhancements first and the gang allegations second. During the portion of the trial dealing with the murder 6 charge, the parties stipulated that appellant "is an active member and participant in the 7 Villa Posse street gang and goes by the nickname Deuce or Jay," that Foster "was an active member and participant in the 107 Hoover Crips criminal street gang and went 8 by the nickname Sonny or Sunno" at the time of the shooting, and that "there exists a long-standing and violent rivalry between the Villa Posse and the 107 Hoover Crips." 9 Later, during the portion of the trial dealing with the gang allegations, the parties further 10 stipulated that "the Villa Posse is a criminal street gang as defined in Penal Code Section 186.22(e) and (f)." 11 In seeking to prove the gang allegations, the People also called seven police officers and 12 a gang expert to provide testimony regarding appellant's gang affiliation and motivation for committing the shooting. Five of the officers called detailed various jail 13 classification interviews occurring between 2009 and 2013. In these interviews, 14 appellant repeatedly admitted being a member of the Villa Posse gang, at one point stating he had been a member for eight years in 2013, confirmed he would have 15 problems if housed with other gangs, and confirmed he went by the name Deuce or Jay. Another officer detailed the results of an investigation following an incident where 16 appellant was assaulted while in jail. In that incident, appellant was attacked by gang 17 members who acted believing he was a Villa Posse gang member. Appellant admitted to being a Villa Posse gang member during the investigation. The final officer testified 18 regarding the execution of a search warrant in 2012 where a rifle and gun were found in appellant's apartment. In an interrogation related to that investigation, appellant 19 admitted to being a Villa Posse gang member, showed the officer relevant gang signs, 20 confirmed he went by the name Little Deuce, and stated he would be willing to shoot at a rival gang member. During the presentation of this evidence, appellant's counsel only 21 objected during the discussion of the search warrant, raising hearsay and prejudice arguments, which were overruled. 22 The gang expert then provided testimony regarding appellant's gang membership and 23 conduct, along with more general gang information. With respect to general background 24 on the Villa Posse gang, the expert recounted historical information about the gang, including when it was first noticed and its original territory. The expert explained the 25 gang was part of an alliance known as Twamp and, therefore, was historically in conflict with another alliance of gangs known as Mug. The expert discussed common phrases 26 and colors used by Villa Posse gang members, and detailed their current territories. The 27 expert testified she knew at least three Villa Posse members personally and that there were at least 90 members in the gang. The expert noted Villa Posse gang members 28 regularly engage in illegal conduct, including the illegal possession of weapons, narcotic 1 offenses, shootings, and murder. The expert informed the jury that respect is an important concept in gangs generally and that respect can be gained within gangs 2 through the commission of violent acts. The expert identified an ongoing violent rivalry between the Villa Posse and the 107 Hoover Crips, explaining she had knowledge of at 3 least nine different shootings between a Villa Posse member and a Hoover Crip member 4 between 2005 and 2010.

5 With respect to determining whether one was an active gang member generally, the expert identified the various factors considered in making this determination. These 6 included things such as associating with other gang members, having gang tattoos, and 7 self-identifying as a gang member during jail classification interviews, among others. The expert then recounted at least seven different incidents, between 2009 and 2011, 8 where the expert had been made aware of instances appellant had been contacted or arrested while in the company of known Villa Posse gang members. In one of these 9 incidents, the expert stated appellant and a known gang associate were determined to 10 have engaged in a shooting involving a different Hoover Crip's house. There is no indication in the record the expert personally participated in investigating any of these 11 incidents.

12 Based on this evidence, the expert presented several opinions. These included opinions that appellant was an active member of the Villa Posse gang, an opinion the expert stated 13 would not change if the jail classification evidence was not considered, and that an active 14 member of the Villa Posse gang would know of the conduct of other members. On this point, the expert noted appellant had committed many crimes with other gang members 15 and had been present during the execution of a search warrant seeking evidence of criminal conduct. The expert further opined that Foster was a Hoover Crip and well 16 known in the community as such. Based on hypothetical questions in line with the 17 evidence presented, the expert opined a shooting like the one in this case would further the interests of the Villa Posse gang because the gang "would gain in reputation for 18 being ruthless or being violent." The expert also opined the shooting would benefit the gang because as the shooter's status for violence increases, so does the reputation of the 19 gang, increasing the gang's ability to instill fear and gain respect. Finally, the expert 20 opined that murdering a rival gang member was at the top of the list of ways to do work for the gang, due to the potential consequences both of being caught and of incurring 21 retaliation from the act.

22 Appellant was ultimately convicted by jury of both murder and assault with a firearm, along with enhancements for using a firearm. The jury also found true, with respect to 23 the murder charge, a gang-related special circumstance (§ 190.2, subd. (a)(22)) and a 24 gang enhancement (§ 186.22, subd. (b)(1)) allegation. Based on these findings, appellant was sentenced to a term of 25 years to life for committing murder with a firearm, 25 followed by an indeterminate term of life without the possibility of parole based on the murder charge and special circumstance finding. He then received a consecutive 26 sentence of 14 years for the assault charge. 27 This appeal timely followed. We initially affirmed appellant's conviction in a 28 nonpublished opinion dated October 30, 2017. Shortly thereafter, on November 6, 2017, 1 appellant filed a petition for rehearing arguing the recently enacted Senate Bill 620, which provides a trial court has discretion to strike certain firearm enhancements, 2 applied retroactively to his case and warranted a remand for resentencing. The People conceded Senate Bill 620 applies retroactively, but argued, after we granted rehearing, 3 that appellant's case should not be remanded because such a remand would be futile. In 4 this revised opinion, we reissue our prior decision to affirm appellant's conviction and consider the dispute whether remand is appropriate in light of Senate Bill 620. 5 6 People v. Hayes, No. F071352, 2018 Cal. App. Unpub. LEXIS 121, at *3-9 (Jan. 8, 2018). 7 The Fifth DCA remanded the matter to the trial court to decide whether to exercise its 8 discretion to strike the firearm enhancement and in all other respects affirmed the judgment. Id. at *2- 9 3. The petition for review was denied by the California Supreme Court. (Doc. 19-23.) 10 Petitioner filed a state habeas petition in the Fresno County Superior Court, which was denied 11 on procedural grounds. (Docs. 19-24, 19-25.) He then filed a state habeas petition in the California 12 Court of Appeal, which was denied on procedural grounds. (Docs. 19-26, 19-27.) Finally, he filed a 13 state habeas petition in the California Supreme Court, which was denied on procedural grounds. 14 (Docs. 19-28, 19-29.) 15 Petitioner filed the instant habeas petition on April 22, 2020. (Doc. 1.) Respondent filed its 16 answer on August 25, 2020. (Doc. 18.) Petitioner filed a traverse on September 25, 2020. (Doc. 20.) 17 II. DISCUSSION 18 A. Jurisdiction 19 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 20 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 21 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 22 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 23 Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is 24 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 25 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 26 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. 27 Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after 28 statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore 1 governed by its provisions. 2 B. Legal Standard of Review 3 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 4 petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was 5 contrary to, or involved an unreasonable application of, clearly established Federal law, as determined 6 by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an 7 unreasonable determination of the facts in light of the evidence presented in the State court 8 proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 9 U.S. at 412-413. 10 A state court decision is “contrary to” clearly established federal law “if it applies a rule that 11 contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts 12 that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” 13 Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406). 14 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an 15 “unreasonable application” of federal law is an objective test that turns on “whether it is possible that 16 fairminded jurists could disagree” that the state court decision meets the standards set forth in the 17 AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal 18 law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 563 U.S. 170, 203 19 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that 20 the state court’s ruling on the claim being presented in federal court was so lacking in justification that 21 there was an error well understood and comprehended in existing law beyond any possibility of 22 fairminded disagreement.” Harrington, 562 U.S. at 103. 23 The second prong pertains to state court decisions based on factual findings. Davis v. 24 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 25 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 26 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the facts 27 in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 28 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s factual finding is 1 unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” 2 Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, 3 Maddox v. Taylor, 543 U.S. 1038 (2004). 4 To determine whether habeas relief is available under § 2254(d), the federal court looks to the 5 last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 6 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we 7 independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. 8 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 9 The prejudicial impact of any constitutional error is assessed by asking whether the error had 10 “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 11 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding 12 that the Brecht standard applies whether or not the state court recognized the error and reviewed it for 13 harmlessness). 14 C. Review of Petition 15 The petition presents the following claims for relief: (1) The admission of certain gang expert 16 testimony violated the Fifth and Sixth Amendments; (2) That the gang-murder special circumstance 17 was unconstitutional on its face and as applied in his case because it did not sufficiently narrow the 18 class of eligible offenders; (3) That there was insufficient evidence to support the true finding on the 19 gang-murder special circumstance; and (4) That his stipulations were tantamount to a guilty plea and 20 thus the trial court was required to advise Petitioner and obtain a waiver of his constitutional rights 21 before accepting the stipulations. 22 1. Gang Expert Testimony 23 Petitioner challenges the admission of certain gang expert testimony under the Fifth and Sixth 24 Amendments. (Doc. 1 at 9, 13.) In the last reasoned decision, the Fifth DCA denied the claim as 25 follows: 26 Admission of Gang Expert's and Related Testimony

27 Appellant also attacks a large portion of the evidence introduced through and relied upon by the gang expert to support both the gang enhancement and the gang-related special 28 circumstance on two principal grounds. First, under People v. Elizalde (2015) 61 1 Cal.4th 523, 189 Cal. Rptr. 3d 518, 351 P.3d 1010 (Elizalde), appellant contends all evidence of gang membership obtained during so-called jail classification interviews 2 and police questioning was improperly admitted because the People failed to demonstrate appellant had been provided appropriate Miranda warnings prior to giving 3 his statements. Appellant relies on this argument in seeking to exclude not only the 4 multiple booking interviews, but also statements made when appellant was the victim of an assault while in jail and following the execution of a search warrant in 5 2012. Second, under People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal. Rptr. 3d 102, 374 P.3d 320 (Sanchez), appellant contends all evidence of gang membership introduced 6 by the expert which was based solely on "the content of reports written by other police 7 officers regarding appellant's prior offenses and gang contacts, and Foster's gang affiliation" was inadmissible because it violated the confrontation clause of the United 8 States Constitution. Appellant relies on this argument in seeking to exclude all evidence relied on by the gang expert derived from police reports and contacts where the reporting 9 officer did not testify, including multiple reports from 2009 through 2012, and the 10 reports relating to the incident in this case.

11 Standard of Review and Applicable Law

12 Considering the order under which we will analyze the arguments, we begin by recounting the law relevant to appellant's confrontation clause position and then proceed 13 to the law regarding appellant's Miranda claim. 14 Confrontation Clause Principles 15 "The Sixth Amendment to the federal Constitution guarantees a defendant's right 16 to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on 17 'testimonial' out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Harris (2013) 57 18 Cal.4th 804, 839-840, 161 Cal. Rptr. 3d 364, 306 P.3d 1195.) Under federal confrontation clause jurisprudence, as interpreted by our California Supreme Court, at 19 least two factors must be considered to determine whether a statement is 20 testimonial. "First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose 21 pertains in some fashion to a criminal prosecution." (People v. Dungo (2012) 55 Cal.4th 608, 619, 147 Cal. Rptr. 3d 527, 286 P.3d 442.) However, "[i]t is evident that Sixth 22 Amendment jurisprudence following the Supreme Court's decision in Crawford v. Washington (2004) 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (Crawford) remains 23 in considerable flux." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395, 24 178 Cal. Rptr. 3d 185, 334 P.3d 573.) Indeed, courts have spent significant effort collecting and summarizing the various permutations of the doctrine. (See, e.g., People 25 v. Barba (2013) 215 Cal.App.4th 712, 714-733, 155 Cal. Rptr. 3d 707.)

26 As appellant notes, in the course of this appeal our Supreme Court provided additional 27 guidance in this area when it decided Sanchez. Sanchez considered "the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content 28 in explaining the basis for his opinion." (Sanchez, supra, 63 Cal.4th at p. 1 670.) Sanchez reasserted the historical distinction between case-specific hearsay and the general hearsay relied upon by experts to detail general knowledge in the expert's field 2 of expertise. (Id. at pp. 675-678.) In doing so, it clarified that "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those 3 statements are necessarily considered by the jury for their truth, thus rendering them 4 hearsay." (Id. at p. 684.)

5 Having established this baseline, the Court then considered whether certain types of hearsay evidence in gang cases are testimonial in nature and thus within the purview 6 of Crawford's constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at 7 p. 687.) The Court detailed its understanding of the present evolution of what constitutes testimonial hearsay, explaining as a precursor, "[t]estimonial statements are those made 8 primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to 9 deal with an ongoing emergency or some other purpose unrelated to preserving facts for 10 later use at trial." (Id. at p. 689.) It then recounted various permutations of the primary purpose test, before applying the overarching doctrine to certain evidence relied upon in 11 reaching the gang conclusions in that matter. (Id. at pp. 689-694.) In its application, the Court found that police reports are generally testimonial in nature, as are field 12 identification cards written during the course of an active investigation. (Id. at pp. 695- 697.) The Court concluded the admission of such testimonial hearsay violates the 13 confrontation clause. (Sanchez, at pp. 695-698.) 14 "'"'Confrontation clause violations are subject to federal harmless-error analysis 15 under Chapman v. California (1967) 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705.' [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury 16 would have reached the same verdict absent the error."'" (People v. Capistrano (2014) 17 59 Cal.4th 830, 873, 176 Cal. Rptr. 3d 27, 331 P.3d 201.) "'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to 18 everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might 19 have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86, 1 Cal. Rptr. 3d 650, 20 72 P.3d 280.)

21 Miranda Principles

22 Under the Fifth Amendment as detailed by the rule of Miranda, supra, 384 U.S. at pp. 478-479, "certain admonitions must be given before a suspect's statement made during 23 custodial interrogation can be admitted in the prosecution's case-in-chief." (Elizalde, 24 supra, 61 Cal.4th at pp. 527, 532.) Historically, however, certain questions asked under what is called the booking exception are exempted from this rule. In Elizalde, our 25 Supreme Court explained, "That authority recognizes that, for a limited category of booking questions involving biographical data, no Miranda warnings are required and 26 admission of the defendant's answers at trail does not violate the Fifth Amendment. For 27 questions outside this limited category, however, answers given, without an admonition, to questions an officer should know are reasonably likely to elicit an incriminating 28 1 response may not be admitted in the prosecution's case-in-chief." (Id. at pp. 531-532, fn. omitted.) 2 The question in Elizalde was whether "routine questions about gang affiliation, posed 3 to defendant while processing him into jail on murder charges, come 4 within Miranda's well-recognized booking exception." (Elizalde, supra, 61 Cal.4th at p. 527.) Retracing principles relevant to the meaning of custodial interrogation, the Court 5 noted one is in custody when they have actually been taken into custody or otherwise deprived of their freedom in any significant way, and is interrogated when the police 6 utilize any words or actions, other than those normally attendant to arrest and custody, 7 that they know are reasonably likely to elicit an incriminating response from a suspect. (Id. at p. 534.) Considering California's "comprehensive scheme of penal statutes aimed 8 at eradicating criminal activity by street gangs," (id. at pp. 538-540) the Court concluded standard questions about gang affiliation asked during the booking process for a murder 9 charge were "reasonably likely to elicit an incriminating response." (Ibid.) But the Court 10 noted that prior cases, such as People v. Williams (2013) 56 Cal.4th 165, 152 Cal. Rptr. 3d 778, 294 P.3d 1005, applied the same standard when finding officers asking questions 11 in response to a request for protective custody "'were appropriately responding to defendant's own security concern, and would not reasonably have expected him to 12 produce a confession.'" (Elizalde, supra, 61 Cal.4th at p. 529.)

13 As with the confrontation clause challenges, the "erroneous admission of a defendant's 14 statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard." (Elizalde, supra, 61 Cal.4th at p. 542.) "That 15 test requires the People here 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Ibid.) 16

17 We review whether the proffered evidence violated the Fifth Amendment, and the confrontation clause, and whether any such error was prejudicial, issues of law, de novo. 18 (See Elizalde, supra, 61 Cal.4th at p. 530; People v. Stamps (2016) 3 Cal.App.5th 988, 992, 207 Cal. Rptr. 3d 828.) 19 20 Appellant's Sanchez and Elizalde Arguments Have Not Been Forfeited

21 Focusing on the fact that appellant's counsel offered no objections to the majority of the evidence contested on appeal, raising only hearsay and prejudice arguments to evidence 22 concerning appellant's admission after being attacked in jail, the People argue appellant forfeited his claims under the Fifth and Sixth Amendments. Aside from one issue, we 23 do not agree. 24 Both Sanchez and Elizalde constitute substantial changes in the law concerning the 25 admissibility of evidence in criminal trials. Sanchez itself recognized that the paradigm in existence at the time held that an expert's testimony could relate facts typically 26 considered hearsay provided the jury received a proper limiting instruction. (Sanchez, 27 supra, 63 Cal.4th at p. 679.) The Court then wholly rejected that paradigm and set forth the current test. While Elizalde did not widely overturn existing legal precedent, it did 28 resolve a split between the Courts of Appeal concerning the legitimate scope of the 1 booking exception in a manner that substantially changed the admissibility analysis for statements made during the booking process. (Elizalde, supra, 61 Cal.4th at pp. 533- 2 534.) As the People recognize, this clarification occurred after appellant's trial, which accounts for appellant's failure to raise such issues at the time. Thus, at the time of 3 appellant's trial, an objection under the confrontation clause or one seeking exclusion of 4 evidence subject to the then-understood booking exception would have been futile. Accordingly, we excuse appellant's lack of objection on these grounds and review his 5 contentions on the merits. (See People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal. Rptr. 2d 520, 851 P.2d 802 ["Reviewing courts have traditionally excused parties for failing 6 to raise an issue at trial where an objection would have been futile or wholly unsupported 7 by substantive law then in existence."].)

8 We note, however, that this conclusion does not extend to all grounds raised by appellant in this appeal. Specifically, appellant has alleged an Elizalde violation with respect to 9 statements he made in the course of questioning following the execution of a search 10 warrant in 2012. The record provides no basis to conclude these statements were made following appellant's arrest as part of the booking process, as opposed to being made 11 through normal interrogation practices following a legal detention. In our independent review of the record, we see no foundational basis to conclude 12 appellant's Elizalde argument would apply to the contested search warrant statements. As such, appellant has made no showing the law regarding 13 appropriate Miranda warnings has changed in a manner which would warrant 14 exercising our discretion to overlook appellant's lack of objection. For similar reasons (i.e., the lack of any evidence Elizalde is applicable to these statements), we see no basis 15 to support appellant's assertion of ineffective assistance of counsel for failing to object. As Elizalde error was not implicated, there could be no error in failing to object on such 16 grounds. 17 In light of the above conclusions, we now consider whether admitting the evidence 18 properly included within this appeal violated appellant's constitutional rights.

19 The Contested Gang Expert Testimony Violated the Confrontation Clause 20 Under appellant's confrontation clause argument, he contends that the gang expert 21 impermissibly introduced evidence from prior police contacts, spanning from 2009 to 2012, because the expert relied upon and recounted that information solely from police 22 reports. The People acknowledge that their gang expert relied upon "over half a dozen police reports detailing law enforcement contacts with appellant and other Villa Posse 23 gang members." The People argue, though, there is "nothing in Crawford or its progeny 24 however, that prohibits a gang expert from relying on hearsay as a basis for her opinions as to a person's gang membership status or that a particular crime was gang related." 25 The People properly note that Sanchez was pending at the time of their briefing and that the case relates to this argument. 26

27 Given the subsequent guidance provided by Sanchez, it is apparent that the evidence introduced through the gang expert derived from prior police reports was inadmissible 28 testimonial hearsay. It is, in fact, now clear that the Crawford line of cases prohibits a 1 gang expert from recounting testimonial hearsay as the basis for her opinion. None of the evidence related from police reports and field contacts appears to have arisen in the 2 course of an emergency and, thus, there is no indication the police reports and field information are not testimonial in nature. (See Sanchez, supra, 63 Cal.4th at pp. 695- 3 697.) Introduction of such evidence, therefore, violated the confrontation clause. (Id. at 4 pp. 695-698.)

5 Some of the Remaining Contested Testimony Violated Miranda

6 Appellant's Miranda arguments cover three distinct forms of evidence, two of which 7 were preserved for review in this appeal. In the first, appellant objects to testimony recounting question and answer sessions during various jail classification interviews 8 designed to determine where appellant would be housed while incarcerated. In the second, appellant applies the same logic to questions asked after appellant's 2012 assault 9 while in jail. We take each in turn. 10 Jail Classification Interviews 11 Five officers responsible for jail classification procedures testified concerning 12 interviews where appellant admitted to gang membership, twice in 2009, twice in 2012, and once in 2013. None of these officers testified they provided Miranda warnings prior 13 to questioning appellant, nor were they questioned on whether they did so. Several did 14 state they regularly ask their questions of all inmates for classification purposes. The People appear to recognize that, under Elizalde, introduction of such evidence was 15 erroneous. However, the People argue appellant cannot demonstrate error generally because the record is silent as to any Miranda warnings and note that Elizalde was not 16 the law at the time of the trial. We find neither argument persuasive. 17 As a matter of criminal procedure correcting a serious flaw in the factfinding process at 18 trial—the introduction of constitutionally infirm evidence—we have no doubt that Elizalde should be applied in this appeal. (See In re Montgomery (1970) 2 Cal.3d 19 863, 867, 87 Cal. Rptr. 695, 471 P.2d 15 [rules of criminal procedure correcting 20 serious flaws in the factfinding process at trial routinely applied retroactively]; see also People v. Leon (2016) 243 Cal.App.4th 1003, 1012, 197 Cal. Rptr. 3d 600 21 [noting Elizalde was issued during the pendency of the appeal, as here, before applying it].) Under Elizalde's analysis, absent evidence appellant received Miranda warnings 22 before being asked jail classification questions regarding his gang affiliations, the People may not introduce appellant's statements in their case-in-chief. (Elizalde, supra, 23 61 Cal.4th at pp. 538-540.) Nor does the lack of evidence of Miranda warnings sink 24 appellant's claim. Having found that appellant's objections were not forfeited, due to the substantial change in the law affected by Elizalde, and that Miranda's protections 25 applied to this situation, the burden falls to the People to demonstrate a knowing, intelligent, and voluntary waiver of those rights. (People v. Linton (2013) 56 Cal.4th 26 1146, 1171, 158 Cal. Rptr. 3d 521, 302 P.3d 927.) There is no evidence of such a waiver 27 in this case. Accordingly, we conclude the jail classification testimony was improperly admitted. 28 1 Assault Investigation

2 We reach a different conclusion with respect to the assault investigation. As our Supreme Court settled the law on the booking exception in Elizalde, partially through 3 clarifying the test for interrogation laid out in Rhode Island v. Innis (1980) 446 U.S. 291, 4 100 S. Ct. 1682, 64 L. Ed. 2d 297 was controlling, it specifically discussed its prior case of Williams. (Elizalde, supra, 61 Cal.4th at pp. 534, 538.) In Williams, the Court 5 concluded questions asked "'appropriately responding to defendant's own security concern'" were of the type that would not reasonably have expected the defendant to 6 produce a confession. (Elizalde, at p. 537.) 7 We view the questions asked after appellant was assaulted in 2012 to fall within the 8 permissible scope of questioning approved in Williams and examined in Elizalde. The record testimony demonstrates officers were investigating appellant's own complaints 9 about being attacked in prison and following up on statements made by appellant that 10 demonstrated the attack may have had a gang-related motivation. While the direct question whether appellant was, in fact, a gang member is notable, on the whole we 11 conclude the questions asked were not of the sort that the investigating officer would have reasonably expected appellant to produce a confession. Indeed, appellant was not 12 reasonably faced with any possibility of obtaining a gang-related charged as a result of this investigation. As such, we do not find Elizalde barred admission of this evidence. 13

14 The Errors Were Not Prejudicial

15 Having found error under both Sanchez and Elizalde, we next consider whether that error was prejudicial. In this analysis, determining if appellant suffered prejudice from 16 the erroneous introduction of testimonial hearsay requires us to examine the elements 17 of the offense and the relevant evidence. (See Sanchez, supra, 63 Cal.4th at p. 698.) The People argue any error was harmless beyond a reasonable doubt because other evidence, 18 including the stipulations entered into, demonstrates conclusively both that appellant was "an active member and participant of the Villa Posse street gang" and that the 19 motive for murdering Foster was gang related. Considering the errors identified 20 separately or cumulatively, and recognizing the heightened requirement that the People prove "'beyond a reasonable doubt that the error complained of did not contribute to the 21 verdict obtained,'" we ultimately find the errors harmless beyond a reasonable doubt. (Elizalde, supra, 61 Cal.4th at p. 542.) 22 As appellant contests the admissibility of evidence under both the gang enhancement 23 and the gang-related special circumstance, we consider the relevant requirements of 24 both. The gang enhancement requires proof a felony was committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent 25 to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "The enhancement set forth in section 186.22(b)(1) does not pose a risk 26 of conviction for mere nominal or passive involvement with a gang. Indeed, it does not 27 depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of 28 1 that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68, 119 Cal. Rptr. 3d 415, 244 P.3d 1062.) 2 The gang-related special circumstance requires "[t]he defendant intentionally killed the 3 victim while the defendant was an active participant in a criminal street gang, as defined 4 in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Although not identical, 5 the language of section 190.2, subdivision (a)(22) "substantially parallels the language of section 186.22, subdivision (b)(1)." (Carr, supra, 190 Cal.App.4th at p. 488.) In 6 particular, section 186.22, subdivision (b)(1) requires a specific intent to "promote, 7 further, or assist in any criminal conduct by gang members," while section 190.2, subdivision (a)(22) requires one act "to further the activities of the criminal street gang." 8 The nature of the murder in this case, as shown by the evidence, is calculated and 9 heinous. But, standing alone, there is nothing about it which suggests gang activity. 10 Rather, that inference arises out of the totality of the evidence presented by the People regarding appellant and the victim of the crime. Even without the evidence excluded 11 under Sanchez and Elizalde, the People demonstrated that appellant and Foster were members of rival gangs that had a current and ongoing dispute, resulting in several 12 shootings. They also demonstrated appellant's gang involvement was long-standing, involved the possession of weapons, and was significant enough that he was targeted by 13 rival gang members when in jail. Finally, they showed through appellant's own words 14 that he would, if the situation called for it, shoot at a rival gang member.

15 The excluded evidence aided in painting a fuller picture of appellant's gang involvement. It showed multiple arrests and bookings, long-term gang involvement, and an apparent 16 correlation between the two. While the evidence properly admitted did not directly shed 17 light on appellant's knowledge that Foster was a rival gang member, imply that appellant and Foster had any prior history or knowledge of each other, or otherwise directly show 18 appellant was targeting Foster as a rival gang member, it did permit the jury to draw these rational conclusions. The properly excluded evidence added little, if anything, to 19 those points and, therefore, was generally duplicative of the admitted evidence. As such, 20 we conclude beyond a reasonable doubt that the improperly admitted evidence did not contribute to the verdict. 21 22 People v. Hayes, 2018 Cal. App. Unpub. LEXIS 121, at *14-31. 23 a. Legal Standard 24 The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the 25 accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const ., 26 Amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did 27 not appear at trial unless he was unavailable to testify, and the defendant . . . had a prior opportunity 28 for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004); Davis v. Washington, 1 547 U.S. 813, 821 (2006). The Confrontation Clause applies only to "'witnesses' against the accused, 2 i.e., those who 'bear testimony.'" Crawford, 541 U.S. at 51 (citation omitted); Davis, 547 U.S. at 823- 3 24. "'Testimony,' in turn, is typically a solemn declaration or affirmation made for the purpose of 4 establishing or proving some fact." Crawford, 541 U.S. at 51 (citation and some internal punctuation 5 omitted); Davis, 547 U.S. at 824. As the Davis court explained: 6 [a] critical portion of [Crawford's] holding . . . is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of 7 the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, 8 is not subject to the Confrontation Clause. 9

10 Davis, 547 U.S. at 821 (citation omitted). Thus, nontestimonial statements do not implicate 11 the Confrontation Clause. Giles v. California, 554 U.S. 353, 376 (2008). Moreover, the Confrontation 12 Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of 13 the matter asserted." Crawford, 541 U.S. at 59 n. 9. Additionally, a Confrontation Clause violation is 14 subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). A 15 Confrontation Clause violation is harmless, and does not justify habeas relief, unless it had substantial 16 and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 17 619, 623 (1993). 18 "Although Crawford did not define 'testimonial' or 'nontestimonial,' it made clear that 19 the Confrontation Clause was concerned with 'testimony,' which 'is typically [a] solemn declaration or 20 affirmation made for the purpose of establishing or proving some fact,' and noted that '[a]n accuser 21 who makes a formal statement to government officers bears testimony in a sense that a person who 22 makes a casual remark to an acquaintance does not.'" Delgadillo v. Woodford, 527 F.3d 919, 927 (9th 23 Cir.2008) (quoting Crawford, 541 U.S. at 51). Subsequent Supreme Court cases have suggested that a 24 statement is "testimonial" if its declarant knew, or should have known, that its primary utility was to 25 provide evidence of the defendant's unlawful conduct for use in his prosecution or a criminal 26 investigation into past events. See Williams v. Illinois, 567 U.S. 50, 82 (2012) ("The abuses that the 27 Court has identified as prompting the adoption of the Confrontation Clause shared the following two 28 characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a 1 targeted individual of engaging in criminal conduct and (b) they involved formalized statements such 2 as affidavits, depositions, prior testimony, or confessions."); Melendez-Diaz v. Massachusetts, 557 3 U.S. 305 (2009) (opining that a statement is "testimonial" if it was made for an "evidentiary purpose" 4 and "under circumstances which would lead an objective witness reasonably to believe that the 5 statement would be available for use at a later trial") (internal citation and quotation marks omitted). 6 b. Analysis 7 The state court applied the correct legal standard under the Sixth Amendment by 8 applying Crawford, 541 U.S. 36. Thus, the only question is whether the state court's adjudication is 9 objectively unreasonable. 10 First, as to the statements Petitioner made during the 2012 assault investigation, the Fifth 11 DCA’s determination that these “[fell] within the permissible scope of questioning approved 12 in Williams and examined in Elizalde” was objectively reasonable. (Doc. 18 at 24); People v. Hayes, 13 2018 Cal. App. Unpub. LEXIS 121, at *27. Regarding the other challenged evidence, even if there 14 was error, the state court reasonably concluded that the errors were harmless beyond a reasonable 15 doubt. As Respondent contends, the error did not have a "substantial and injurious effect or influence 16 in determining the jury's verdict." (Doc. 18 at 25, quoting Brecht v. Abrahamson, 507 U.S. 619, 637 17 (1993)). Respondent argues that the strength of all the properly admitted gang-related evidence and 18 stipulations regarding Petitioner’s gang membership “meant that the admission of some testimonial 19 hearsay and some unmirandized statements was merely cumulative of other admissible evidence.” 20 (Doc. 18 at 24-25.) As discussed by the Fifth DCA, even without the evidence excluded 21 under Sanchez and Elizalde, the prosecution demonstrated that Petitioner and Foster were members of 22 rival gangs that had a current and ongoing dispute, resulting in several shootings. People v. Hayes, 23 2018 Cal. App. Unpub. LEXIS 121, at *30. They also demonstrated Petitioner’s gang involvement 24 was long-standing, involved the possession of weapons, and was significant enough that he was 25 targeted by rival gang members when in jail. Id. Finally, they showed through Petitioner’s own words 26 that he would, if the situation called for it, shoot at a rival gang member. Id. The Fifth DCA 27 reasonably found that the properly excluded evidence added little, if anything, to those points and, 28 therefore, was generally a duplication of other admitted evidence. Id. at *30-31. Accordingly, it was 1 objectively reasonable for the state court to conclude beyond a reasonable doubt that the improperly 2 admitted evidence did not contribute to the verdict. Therefore, the Petitioner is not entitled to habeas 3 relief because the state court decision was not contrary to or an unreasonable application of clearly 4 established Supreme Court precedent. And even if error occurred, it could have had no effect on the 5 jury's verdict. The claim should be denied. 6 2. Insufficient Evidence of Special Circumstance Finding 7 Petitioner claims that the gang-murder special circumstance was unconstitutional on its face 8 and as applied in his case because it did not sufficiently narrow the class of eligible offenders. (Doc. 1 9 at 10.) Petitioner raised this claim on direct appeal. In the last reasoned decision, the Fifth DCA denied 10 the claims as follows: 11 Turning to appellant's arguments concerning only the gang-related special circumstance, we readily reject appellant's contention that the gang-related special circumstance is 12 unconstitutional for failing to sufficiently differentiate between those subject to the death penalty and those not subject to the death penalty. The requirement of an 13 intentional killing done to further an identified criminal street gang is a sufficient 14 distinguishing factor to pass constitutional muster. (See People v. Stevens (2007) 41 Cal.4th 182, 215, 59 Cal. Rptr. 3d 196, 158 P.3d 763 [lying-in-wait special 15 circumstances and lying-in-wait murder sufficiently distinct because the former requires an intent to kill, while the latter does not].) We also note our Supreme Court has 16 repeatedly stated the factors identified in the relevant statute pass constitutional muster 17 as a whole. (See People v. Sivongxxay (2017) 3 Cal.5th 151, 198, 219 Cal. Rptr. 3d 265, 396 P.3d 424.) 18 Similarly, we reject appellant's "as applied" challenge on sufficiency of the evidence 19 grounds and its suggestion that the same evidence cannot demonstrate both that a gang 20 member's conduct benefited his gang and that it furthered the gang's activities. In doing so, we need not resolve appellant's contention that the gang-related special circumstance 21 requires more than a retroactive benefit to the gang. Even if we accept this as true, the evidence introduced regarding a potential benefit to the gang from the murder separately 22 and adequately supports the reasonable inference that the killing was done to further the gang's activities. There is no logical reason why the evidence cannot support both 23 inferences, and appellant has pointed us to no legal precedent stating so. Evidence 24 concerning the basis for and effect of one's conduct can reasonably support multiple nonconflicting inferences. Specific to this case, the evidence demonstrated there was an 25 ongoing dispute between appellant's gang and the victim's gang and that this dispute had involved several previous shootings. Thus, evidence that another shooting occurred 26 between the gangs, in which one gang member shot another execution style in a public 27 place, could rationally support both the conclusions that the shooting retroactively benefited the gang by increasing its reputation for violence and that it furthered the 28 gangs' activities by continuing the current and ongoing dispute in a public way. The 1 gang expert considered both inferences and stated her opinion that the conduct both benefited the gang retroactively and furthered the gang's activities. The jury could 2 rationally accept this opinion based on the evidence before it.

3 People v. Hayes, 2018 Cal. App. Unpub. LEXIS 121, at *32-34. 4 a. Legal Standard 5 The law on sufficiency of the evidence is clearly established by the United States Supreme 6 Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. 307 7 (1979), the test on habeas review to determine whether a factual finding is fairly supported by the 8 record is “whether, after viewing the evidence in the light most favorable to the prosecution, any 9 rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 10 Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, only if “no 11 rational trier of fact” could have found proof of guilt beyond a reasonable doubt will a petitioner be 12 entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by the elements 13 defined by state law. Id. at 324, n. 16. 14 If confronted by a record that supports conflicting inferences, a federal habeas court “must 15 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any such 16 conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. Circumstantial 17 evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters 18 v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). 19 After the enactment of the AEDPA, a federal habeas court must apply the standards of Jackson 20 with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In 21 applying the AEDPA’s deferential standard of review, this Court must presume the correctness of the 22 state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). 23 In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further explained the 24 highly deferential standard of review in habeas proceedings, by noting that Jackson, 25 makes clear that it is the responsibility of the jury - not the court - to decide what 26 conclusions should be drawn from evidence admitted at trial. A reviewing court may set 27 aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a 28 state court decision rejecting a sufficiency of the evidence challenge simply because the 1 federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.” 2 Because rational people can sometimes disagree, the inevitable consequence of this 3 settled law is that judges will sometimes encounter convictions that they believe to be 4 mistaken, but that they must nonetheless uphold.

5 Id. at 2. 6 b. Analysis 7 The Fifth DCA reasonably rejected Petitioner’s contention that the gang-related special 8 circumstance is unconstitutional for failing to sufficiently differentiate between those subject to the 9 death penalty and those not subject to the death penalty, stating that the requirement of an intentional 10 killing done to further an identified criminal street gang is a sufficient distinguishing factor to pass 11 constitutional muster. People v. Hayes, 2018 Cal. App. Unpub. LEXIS 121, at *32-33. Additionally, 12 the Fifth DCA reasonably rejected Petitioner’s “as applied” challenge on sufficiency of the evidence 13 grounds and its suggestion that the same evidence cannot demonstrate both that a gang member's 14 conduct benefited his gang and that it furthered the gang's activities. Id. at *33. The state court 15 reasonably found that the evidence introduced regarding a potential benefit to the gang from the 16 murder separately and adequately supports the reasonable inference that the killing was done to further 17 the gang's activities. Id. at *33-34. As stated by the Fifth DCA, the evidence demonstrated there was 18 an ongoing dispute between Petitioner’s gang and the victim's gang and that this dispute had involved 19 several previous shootings, and evidence that another shooting occurred between the gangs, in which 20 one gang member shot another execution style in a public place, could rationally support both the 21 conclusions that the shooting retroactively benefited the gang by increasing its reputation for violence 22 and that it furthered the gangs' activities by continuing the current and ongoing dispute in a public 23 way. Id. at *34. This claim should be rejected. 24 3. Sufficiency of the Evidence 25 Petitioner contends that there was insufficient evidence to support the true finding on the gang- 26 murder special circumstance. (Doc. 1 at 11.) Petitioner raised this claim on direct review in the state 27 courts. In the last reasoned decision, the appellate court denied the claim as follows: 28 1 /// 2 The Evidence Was Sufficient to Support Appellant's Conviction

3 Although we have found any error in admitting evidence in this matter was harmless, we are still faced with appellant's contention, based in part on the request to exclude the 4 above evidence and the contested stipulations, that there was insufficient evidence to 5 support his conviction. Appellant also argues insufficient evidence with respect to the gang-related special circumstance specifically, regardless of the admissibility of the 6 evidence. We must therefore determine whether the prosecution presented substantial evidence in support of the gang allegations. This entails a review of the record in the 7 light most favorable to the judgment, accepting as true all evidence that is reasonable, 8 credible and of solid value such that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Vy (2004) 122 Cal.App.4th 9 1209, 1224, 19 Cal. Rptr. 3d 402.)

10 Having resolved the evidentiary disputes, we conclude the evidence was sufficient to support the contested convictions. As noted, ante, appellant's stipulations covered much 11 of the evidence necessary to convict under either the gang enhancement or the gang- 12 related special circumstance. Indeed, following the stipulation, all that remained was proving the murder was "committed for the benefit of, at the direction of, or in 13 association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members" for the gang enhancement and "carried 14 out to further the activities of the criminal street gang" for the gang-related special 15 circumstance. (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(22).) On these points, the People introduced evidence regarding appellant's past involvement with the gang, a stipulation 16 regarding the violence between appellant's gang and the victim's gang, and expert testimony tying these facts together in an opinion that appellant's conduct both benefited 17 and furthered his criminal street gang. When viewed in the light most favorable to the 18 prosecution, the properly considered evidence as a whole was sufficient to prove the gang allegations. 19 20 People v. Hayes, 2018 Cal. App. Unpub. LEXIS 121, at *31-32. 21 a. Legal Standard 22 The same legal standard applies as in the above section, related to the sufficiency of the 23 evidence related to special circumstances, so it is not repeated here. 24 b. Analysis 25 Viewing the evidence in the light most favorable to the prosecution, it is clear that the state 26 court’s determination that there was sufficient evidence was not unreasonable. As noted by the state 27 court, Petitioner’s stipulations covered much of the evidence necessary to convict under either the 28 gang enhancement or the gang-related special circumstance. Id. at *31-32. Following the stipulation, 1 the Fifth DCA noted, all that remained was proving the murder was "committed for the benefit of, at 2 the direction of, or in association with any criminal street gang, with the specific intent to promote, 3 further, or assist in any criminal conduct by gang members" for the gang enhancement and "carried out 4 to further the activities of the criminal street gang" for the gang-related special circumstance. Id. at 5 *32, citing §§ 186.22, subd. (b)(1), 190.2, subd. (a)(22). The state court noted that the prosecution 6 introduced evidence regarding Petitioner’s past involvement with the gang, a stipulation regarding the 7 violence between Petitioner’s gang and the victim's gang, and expert testimony tying these facts 8 together in an opinion that Petitioner’s conduct both benefited and furthered his criminal street gang. 9 Id. The Fifth DCA reasonably concluded that the properly considered evidence as a whole was 10 sufficient to support the contested convictions. Petitioner fails to show that no fairminded jurist would 11 agree with the state court’s determination. Petitioner fails to demonstrate that the state court rejection 12 of his claim was contrary to, or an unreasonable application of, the Jackson standard, and the claim 13 should be denied. 14 4. Petitioner’s Stipulations 15 Petitioner alleges that his stipulations were tantamount to a guilty plea and thus the trial court 16 was required to advise Petitioner and obtain a waiver of his constitutional rights before accepting the 17 stipulations. (Doc. 1 at 12.) This claim was also raised on direct appeal and rejected by the Fifth DCA 18 in the last reasoned decision, as follows: 19 Propriety of Appellant's Stipulations

20 As noted above, in the course of the bifurcated proceedings, appellant's counsel entered into two stipulations on appellant's behalf. Appellant now contends that these 21 stipulations "explicitly and implicitly covered every fact and element of the gang special 22 circumstance necessary for a true finding." We do not agree.

23 Standard of Review and Applicable Law

24 Under the cases of Boykin v. Alabama (1969) 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 25 2d 274 (Boykin) and In re Tahl (1969) 1 Cal.3d 122, 81 Cal. Rptr. 577, 460 P.2d 449 (Tahl), courts are obligated to inform a defendant of certain constitutional rights prior 26 to accepting a guilty plea. Under the so-called Boykin-Tahl rule, in a criminal proceeding "a guilty plea is not valid unless the record reflects . . . the defendant had 27 been advised of and waived his right to a jury trial, to confront and cross-examine 28 witnesses, and against self-incrimination." (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 746, 38 Cal. Rptr. 2d 176.) 1 This principle was later extended to evidentiary stipulations, although it was severely 2 limited in its application. As the California Supreme Court explained in People v. Adams (1993) 6 Cal.4th 570, 581, 24 Cal. Rptr. 2d 831, 862 P.2d 831, "When a 3 defendant who has asserted and received his right to trial, and has waived none of his 4 constitutional rights, elects to stipulate to one or more, but not all, of the evidentiary facts necessary to . . . imposition of additional punishment on finding that an 5 enhancement allegation is true, the concerns which prompted the Boykin holding are not present." Accordingly, the Boykin-Tahl rule is not "applicable to an evidentiary 6 stipulation which does not admit the truth of the allegation itself or every fact necessary 7 to imposition of the additional punishment other than conviction of the underlying offense. Unless the stipulation or admission is that broad, it does not have the definite 8 penal consequences necessary to trigger the Boykin-Tahl requirements." (Adams, at p. 580.) 9

10 Appellant's Stipulations Were Not Tantamount to a Guilty Plea

11 As appellant recognizes, the gang-related special circumstance contains four elements. First, that the defendant intentionally killed the victim. Second, that the 12 defendant was an active participant in a street gang. Third, that the defendant knew of the gang's illegal purpose. And, fourth, that the murder was carried out to further the 13 activities of the criminal street gang. (§ 190.2, subd. (22); People v. Carr (2010) 190 14 Cal.App.4th 475, 488, 118 Cal. Rptr. 3d 221 (Carr).) We agree with appellant that, following his plea, the first three of these elements were met. The jury in the first phase 15 had already concluded appellant intentionally killed Foster, and the stipulations that appellant was an active member in the Villa Posse and that the Villa Posse is a criminal 16 street gang were more than sufficient to demonstrate the second and third elements. 17 However, even considering the stipulation that the Villa Posse and Hoover Crips had a long-standing and violent rivalry, we do not agree appellant's stipulations were sufficient 18 to demonstrate the murder was carried out to further the activities of the criminal street gang. 19 20 Appellant argues the fourth element was met because "the People's gang expert used the stipulated facts as the basis for her opinion that this murder was carried out to further 21 the activities of the criminal street gang." However, for this argument to succeed, we would have to ignore that the evidence relied upon by the expert was insufficient to 22 satisfy the element itself. Indeed, the expert's testimony was necessary to explain, both considering the history of gangs generally and the relevant gangs in particular, why an 23 attack carried out by a Villa Posse gang member, against a Hoover Crip gang member, 24 and undertaken in a manner similar to that which occurred here, would further the activities of the Villa Posse gang. Without this additional expert evidence, a jury might 25 rationally look at such an event and conclude it does not further the activities of the Villa Posse gang because the gang member involved risks being arrested and placed in jail 26 for a substantial period of time, unable to commit further crimes or otherwise benefit 27 the gang. The additional expert testimony connecting the specific conduct that occurred to the statutory requirement that it further the Villa Posse gang's activities was not 28 explicitly, or even implicitly, part of the stipulation at issue. The stipulation is thus 1 fundamentally different than that in appellant's primary case, People v. Little (2004) 115 Cal.App.4th 766, 9 Cal. Rptr. 3d 446. There, the defendant stipulated to violating a 2 specific drug statute, thus necessarily admitting all elements contained within that statute. Here, appellant stipulated to much, but not all, of the statutory elements and not, 3 as he argues, to an actual violation of the statute as a whole. Regardless whether 4 appellant now regrets such a tactical choice, the stipulation itself was not improper.

5 People v. Hayes, 2018 Cal. App. Unpub. LEXIS 121, at *10-14. 6 a. Legal Standard and Analysis 7 A defendant pleading guilty is entitled to be advised by the judge in open court of his or her 8 constitutional rights (a) against compulsory self-incrimination, (b) to be tried by a jury, and (c) to 9 confront his or her accusers, and the court has an obligation to establish on the record that the 10 defendant voluntarily and intelligently waived these rights. Boykin v. Alabama, 395 U.S. 238, 243 11 (1969). Petitioner merely stipulated to facts, and did not plead guilty. "A stipulation to facts from 12 which a judge or jury may infer guilt is simply not the same as a stipulation to guilt or a guilty 13 plea." Adams v. Peterson, 968 F.2d 835, 839 (9th Cir. 1992). "A plea of guilty is more than a 14 confession which admits that the accused did various acts; it is itself a conviction ... ." Boykin, 395 15 U.S. at 242. The Supreme Court recognized the distinction between a plea of guilty and stipulation of 16 facts, thus, a defendant who stipulates to facts is not entitled to the full constitutional protections that 17 apply to the tendering of a guilty plea. Adams, 968 F.2d at 841. As explained by the Fifth DCA, the 18 gang-related special circumstance contains four elements, and following his plea, the first three of 19 these elements were met. People v. Hayes, 2018 Cal. App. Unpub. LEXIS 121, at *12. Regarding the 20 fourth element, the Fifth DCA discussed that the stipulated facts relied upon by the expert was 21 insufficient to satisfy the element itself, and the expert's testimony was necessary to explain, both 22 considering the history of gangs generally and the relevant gangs in particular, why an attack carried 23 out by a Villa Posse gang member, against a Hoover Crip gang member, and undertaken in a manner 24 similar to that which occurred here, would further the activities of the Villa Posse gang. Id. at *13. The 25 Fifth DCA reasonably concluded that the stipulation itself was not improper, stating that Petitioner 26 stipulated to much, but not all, of the statutory elements and not, as he argues, to an actual violation of 27 the statute as a whole. Id. at *14. Thus, this claim should be rejected. 28 1 III. RECOMMENDATION 2 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 3 DENIED with prejudice on the merits. 4 This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. Within 7 thirty days after being served with a copy of this Findings and Recommendation, Petitioner may file 8 written objections with the Court. Such a document should be captioned “Objections to Magistrate 9 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 10 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 11 specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED.

15 Dated: October 29, 2020 /s/ Jennifer L. Thurston 16 UNITED STATES MAGISTRATE JUDGE

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