Issac Jimenez v. Sean Moore

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2023
• Docket: 21-56224
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 12 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISSAC EFREN JIMENEZ, No. 21-56224

Petitioner-Appellant, D.C. No. 2:20-cv-09662-AB-MAR v.

SEAN MOORE, Acting Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted December 5, 2022 Pasadena, California

Before: M. SMITH, COLLINS, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Petitioner Isaac Jimenez appeals from the district court’s denial of his 28

U.S.C. § 2254 habeas petition challenging the admission of expert testimony by

Detective Ben Ahrens. Because the parties are familiar with the facts, we do not

recount them here, except as necessary to provide context to our ruling.

1. To the extent that Petitioner contends that the Confrontation Clause was

violated in connection with Ahrens’ testimony that Jimenez was a participant in the

Eastside Krazies and had committed murder in furtherance of the gang’s activities,

the California Court of Appeal’s ruling that any error was harmless was not

objectively unreasonable. When a state court’s harmless-error ruling is reviewed

under AEDPA, “a federal court may not award habeas relief under § 2254 unless

the harmlessness determination itself was unreasonable.” Davis v. Ayala, 576 U.S.

257, 269 (2015). “Unreasonable” means “objectively unreasonable, not merely

wrong; even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419

(2014) (internal quotation marks and citation omitted).

When the state court in this case concluded that any error in admitting

Detective Ahrens’s testimony was harmless, it noted that there was “ample

independent evidence that Jimenez was an active participant in the Eastside

Krazies and that the crime was carried out to further the gang’s activities.” That

independent evidence includes testimony, which is not challenged on

Confrontation Clause grounds, from Eastside Krazies members David and Daniel

2 Ybarra, who stated that Petitioner attended the gang’s gatherings, used narcotics

with them, and sold narcotics to them. The Ybarras also testified that Petitioner

frequently acted as the gang’s driver and checked for unlocked vehicles with them.

David Ybarra testified that Petitioner wanted to be a full-fledged member of the

Krazies, and Petitioner’s co-defendant Castro stated that the murder Petitioner was

found guilty of committing would protect the Krazies from a perceived threat. In

addition, Ahrens’s opinion relied on other permissible material, such as the gang’s

internal “roll call roster” which included Jimenez’s name, his alias, and his

affiliation. See Lucero v. Holland, 902 F.3d 979, 990 (9th Cir. 2018) (finding that

memo made “exclusively [for] internal gang communications” was not

testimonial). His experience having spoken to “more than a few hundred” gang

members and associates, his training, and his personal investigation of Eastside

Krazies crimes, allowed Ahrens to provide the jury with information probative of

Petitioner’s status as a gang participant. And Ahrens testified, based on his

expertise, that a murder like the one in this case would enhance the reputation of a

gang, and assist someone like Jimenez in officially becoming a member of the

gang.

Given the extent of the independent evidence in the record supporting

Petitioner’s convictions on these points, it cannot be said that the state court’s

harmless-error conclusion was “objectively unreasonable” under AEDPA. And,

3 for the same reasons, any error did not have a “substantial and injurious effect” on

the outcome. See United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2002)

(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

2. To the extent that Petitioner contends that the Confrontation Clause was

violated in connection with Ahrens’ testimony concerning the predicate offenses

used to establish a “pattern of criminal activity” under California Penal Code

§ 186.22(b), there is no basis for reversal here. Such a pattern may be shown by

“conviction of two or more” specified predicate offenses, see Cal. Penal Code

§ 186.22(e) (2013 ed.) (emphasis added), and we have held that the introduction of

certifications of official court records of prior convictions does not violate the

Confrontation Clause. See United States v. Weiland, 420 F.3d 1062, 1076–77 (9th

Cir. 2005).

AFFIRMED.