1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOEL AGUILAR, ) Case No. SACV 19-0539-JPR 11 ) Petitioner, ) MEMORANDUM DECISION AND ORDER 12 ) DENYING PETITION AND DISMISSING v. ) ACTION WITH PREJUDICE 13 ) WILLIAM SULLIVAN, Acting ) 14 Warden,1 ) ) 15 Respondent. ) ) 16 17 PROCEEDINGS 18 On March 19, 2019, Joel Aguilar, proceeding pro se, filed a 19 Petition for Writ of Habeas Corpus by a Person in State Custody 20 and accompanying memorandum of points and authorities, raising a 21 single claim challenging his 2016 convictions for attempted 22 murder and related crimes. Respondent filed his Answer and 23 accompanying memorandum of points and authorities on April 17, 24 1 Petitioner is incarcerated at the California Correctional 25 Institution, see Cal. Dep’t Corr. & Rehab. Inmate Locator, https:// 26 inmatelocator.cdcr.ca.gov (search for “Aguilar” with “Joel”) (last visited Jan. 16, 2020), whose acting warden is William Sullivan. 27 He is therefore substituted in as the correct respondent. See Fed. R. Civ. P. 25(d); see also R. 2(a), Rs. Governing § 2254 Cases in 28 U.S. Dist. Cts. 1 1 2019, to which Petitioner has not replied. For the reasons 2 discussed below, the Petition is denied and this action is 3 dismissed with prejudice. 4 BACKGROUND 5 In February 2016, Petitioner was convicted by an Orange 6 County Superior Court jury of premeditated attempted murder, 7 conspiracy to commit murder, active participation in a criminal 8 street gang, and possession of a firearm by a prohibited person. 9 (Lodged Doc. 1, 3 Rep.’s Tr. at 617-20; Lodged Doc. 2, 4 Clerk’s 10 Tr. at 911, 913, 915-16, 961, 963.) The jury found true various 11 gang and firearm enhancements. (Lodged Doc. 1, 3 Rep.’s Tr. at 12 618-19; Lodged Doc. 2, 4 Clerk’s Tr. at 911-14, 961.) On March 13 4, 2016, the court sentenced Petitioner to a prison term of 110 14 years to life. (Lodged Doc. 2, 4 Clerk’s Tr. at 962.) 15 On June 30, 2016, the California Supreme Court decided 16 People v. Sanchez, 63 Cal. 4th 665 (2016), holding that 17 “case-specific out-of-court statements” relied on by a 18 prosecution gang expert are inadmissible hearsay under California 19 law and may also violate a defendant’s Sixth Amendment right to 20 confrontation. Id. at 686. Petitioner appealed, arguing that 21 the trial court improperly admitted testimonial hearsay from the 22 prosecution’s gang expert, violating Sanchez and the 23 Confrontation Clause (Lodged Doc. 4 at 30-45), among other 24 claims. On December 27, 2017, the court of appeal rejected all 25 his claims in a reasoned decision on the merits and affirmed the 26 judgment. (See Lodged Doc. 7); People v. Aguilar, No. G053262, 27 2017 WL 6602368 (Cal. Ct. App. Dec. 27, 2017). The court found 28 that Petitioner’s Sanchez claim failed because he had forfeited 2 1 it, some of the evidence was not hearsay, and any error was 2 harmless. (Lodged Doc. 7 at 9-15); Aguilar, 2017 WL 6602368, at 3 *7-8. On April 11, 2018, the state supreme court summarily 4 denied his petition for review raising the same claims. (See 5 Lodged Docs. 8, 9.) He did not petition for certiorari in the 6 U.S. Supreme Court (Pet. at 5) or file any state habeas petitions 7 (id. at 3). 8 PETITIONER’S CLAIM 9 The admission of the gang expert’s testimony at trial 10 violated Petitioner’s Sixth Amendment right of confrontation. 11 (Pet. at 5 & Mem. P. & A. at 1.) 12 SUMMARY OF THE EVIDENCE 13 The factual summary in a state appellate-court decision is 14 entitled to a presumption of correctness under 28 U.S.C. 15 § 2254(e)(1). See Thompson v. Runnels, 705 F.3d 1089, 1091-92 16 (9th Cir. 2013). Although Petitioner does not challenge the 17 sufficiency of the evidence, the Court has nonetheless 18 independently reviewed the state-court record. Based on that 19 review, the Court finds that the following statement of facts 20 from the California Court of Appeal decision is a fair and 21 accurate summary of the evidence presented at trial. 22 On July 22, 2014, around 11:30 p.m., Maria V. parked 23 her car on West Myrtle Street in Santa Ana to pick up one 24 of her children from a babysitter, her boyfriend’s 25 cousin. After another vehicle passed by going in the 26 opposite direction, she heard a “couple [gun]shots.” 27 Maria, her 10–year–old son, and the cousin, who was a 28 nurse, approached the male victim and found he had been 3 1 wounded, but survived the shooting. At trial, Maria 2 claimed she did not recognize the victim. At the 3 preliminary hearing, she stated she had seen him around 4 the Myrtle Street area but had never spoken with 5 him.[FN1] 6 [FN1] Maria also testified at the preliminary 7 hearing that she grew up with the defendant, 8 [Petitioner], who was her brothers’ friend. 9 The Townsend Street gang claimed their 10 neighborhood as its territory, and she and 11 her four brothers belonged to the gang 12 (hereafter “Townsend Street gang” or just 13 “Townsend”). Her nickname was “Cookie,” and 14 she implied [Petitioner] also belonged to 15 the gang, testifying his moniker or nickname 16 was “Bam Bam.” Maria stopped hanging out 17 with the gang several years before the 18 shooting. She admitted her children’s 19 father had belonged to another gang for 20 several years, West Myrtle, a Townsend 21 rival. 22 Maria called 911 to report the shooting about 40 23 minutes after it occurred, requesting anonymity. She 24 told the 911 operator she saw the shooting. The 25 assailants rode in a four-door blue Ford Explorer driven 26 by “Little Casper,” a Townsend gang member later 27 identified as Alberto Santana. Bam Bam, who Maria 28 referred to as “Julio” Aguilar at one point in the 911 4 1 call, rode in the back seat and “did the shooting.” She 2 physically described the men, noting [Petitioner] had 3 Townsend tattoos “everywhere” including his neck and 4 hands,[FN2] and she provided an address for Santana. She 5 told the operator she had seen the men in a group at 805 6 South Townsend after the shooting. 7 [FN2] [Petitioner] did not have Townsend tattoos 8 on his hands. Also, the tattoos on his neck 9 referred to “Southwest,” not Townsend. 10 Maria also apparently misdescribed Santana 11 as tall. 12 Detective Charles Elms and his partner interviewed 13 Maria two days after the shooting, and the prosecution 14 played a recording of the interview for the jury. In the 15 interview, Maria reluctantly admitted making the 911 16 call, after remarking “why would [she] want to snitch” on 17 her brothers’ and “baby daddy’s” neighborhoods. She told 18 the officers she could not “say any more” because she was 19 at “risk of a lot of things,” noting her family and 20 “everybody . . . already knows I was there.” She worried 21 her name would appear in the “paperwork,” citing other 22 witnesses who had been killed. 23 Nonetheless, she identified photos of Little Casper 24 and Bam Bam, and later admitted in court that Bam Bam was 25 [Petitioner]. She further described in the interview 26 some details about the shooting, including that 27 [Petitioner] used a revolver and she heard six shots. 28 She told the officers she called 911 because she was 5 1 angry the shooting occurred in her children’s presence, 2 and the perpetrators had “no respect for families and 3 kids.” After the shooting, she went “straight over” to 4 the 805 Townsend Street address, where a group had 5 assembled, and yelled at [Petitioner]. [Petitioner] was 6 not apologetic, claiming only that he did not know she 7 was there. A “youngster” told her to “get the fuck out 8 of [there].” 9 At trial, Maria claimed people she could not 10 identify provided her with the information about the 11 shooting, and she denied visiting Townsend Street to 12 confront anyone. She claimed she made up the information 13 about the shooting because she and [Petitioner] “had some 14 issues” in the past and she despised him because he had 15 disrespected her children by calling them each a “little 16 fucking Turtle,” a pejorative nickname Townsend used for 17 West Myrtle. Santana also previously had disrespected 18 her. She testified she was under the influence of 19 marijuana and alcohol the night of the shooting. She 20 explained her account at trial was truthful, and that she 21 decided to tell the truth because her brother once had 22 been convicted for something he did not do based on false 23 testimony. 24 Corporal Galen Diaz responded to the shooting. Diaz 25 found the victim, Antonio M., sitting in a chair in an 26 apartment courtyard. He had sustained two gunshot 27 wounds, one on his upper chest, and another on his upper 28 left arm. Diaz knew Antonio as a West Myrtle gang 6 1 member, and recognized West Myrtle gang tattoos on his 2 body. Antonio was conscious and calling out angrily for 3 paramedics. He generally refused to provide information 4 about the shooting or to cooperate with the officers. 5 Officers found a bullet core or slug in the street. Diaz 6 also identified West Myrtle gang graffiti nearby on a 7 dumpster and on the ground. Diaz spoke on the phone with 8 Maria shortly after the shooting, and she said she was 9 present when the shooting occurred, identifying Bam Bam 10 as the shooter. Diaz knew from prior field contacts that 11 [Petitioner]’s moniker was Bam Bam. 12 Gang detectives accompanied by a SWAT (Special 13 Weapons and Tactics) team arrested [Petitioner] and 14 executed a search warrant at his residence at 805 South 15 Townsend on August 6, 2014. They impounded a dark green 16 2002 Ford Explorer at an adjacent residence. 17 [Petitioner] made several phone calls after he was 18 booked at the Santa Ana jail. The prosecutor played 19 partial recordings of three calls for the jury. 20 . . . 21 In [one] call, while telling [“]Jackie[”], “I’m 22 fucked,” [Petitioner] asked if [she] remembered “Cookie.” 23 Jackie responded, “Aw, fucking bitch,” but [Petitioner] 24 noted “she’s the only one, fool.” Jackie, however, 25 reported “that’s not true, there’s another also.” 26 [Petitioner] concluded by stating, “So, aw, fool, you 27 need to respect that, be honest, fool, and tell them to 28 get a hold of her, fool.” 7 1 In [another] call, when Jackie advised that calls 2 and texts to “her,” the person [Petitioner] had directed 3 her to contact, had gone unanswered, [Petitioner] 4 directed Jackie to “go look for her.” He told Jackie not 5 to “say anything, just go look for her and kick it with 6 her,” and when he asked Jackie cryptically, “[A]nd you 7 know what that means, right,” Jackie responded, “Fuck, 8 man, are you serious?” She exhaled, “Oh my God” when 9 [Petitioner] affirmed, “Word, fool.” [Petitioner] 10 suggested, “Just go chill with her fool and blaze it, you 11 know.” He stated, “For reals, fool. If not I’m I’m 12 [sic] get fucked up.” He noted, “She’s the only one, 13 babe. She was the only one, babe.” 14 Detective Elms testified as a gang expert concerning 15 Santa Ana Hispanic criminal street gangs. He detailed 16 his training and experience, and generally described gang 17 practices and motivations. Familiar with the Townsend 18 criminal street gang, he described its history, symbols, 19 membership, the “turf” or territory the gang claimed, its 20 primary criminal activities, and he confirmed Townsend’s 21 rivalry with the West Myrtle Street gang. Elms explained 22 that the shooting occurred in the heart of territory West 23 Myrtle claimed, while [Petitioner] lived nearby, less 24 than a mile away in the center of Townsend turf. 25 Elms noted he personally conducted many patrols in 26 Townsend and West Myrtle Street gang territory, and 27 testified his familiarity with these gangs stemmed from 28 his personal contact with gang members while in the 8 1 field, interviews with residents who live in the 2 neighborhoods, and from speaking to other gang 3 investigators. Elms drafted the search warrant that 4 resulted in [Petitioner]’s arrest and encountered 5 [Petitioner] at the police station after his arrest, 6 where Elms personally observed [Petitioner]’s gang 7 tattoos. 8 Elms explained the meaning of terms and tattoos 9 unique to gang culture. For example, references to 10 “baby” in gang parlance can mean a firearm. Elms 11 explained that tattoos demonstrate allegiance to a gang, 12 especially those displayed on areas of the body not 13 covered by clothing. Elms explained that nonmembers 14 typically do not obtain gang tattoos because doing so can 15 be met with severe punishment; indeed, in his training 16 and many years of experience, Elms only had heard of one 17 nonmember doing so, and the gang retaliated by cutting 18 out the tattoos. 19 Elms described how [Petitioner]’s tattoos marked him 20 as a Townsend member in photographs displayed to the 21 jury. [Petitioner] had the word, “Southwest,” a nickname 22 for the Townsend gang, tattooed on his neck. “Townsend” 23 was tattooed on his chest. [Petitioner] also had on his 24 legs tattoos of the letters “C” (Calle meaning Street) 25 and “T” (Townsend), as well as Southwest. Similarly, 26 Santana, the driver of the vehicle involved in the 27 shooting, had “S” and “W” (signifying Southwest) tattooed 28 on his shins. 9 1 Elms was not familiar with anyone in the Townsend 2 gang named “Julio” Aguilar. Elms searched the 3 department’s internal records and did not find anybody 4 with that name associated with Townsend. Elms knew 5 [Petitioner] had a brother named Juan, but he was in 6 prison at the time of the shooting. Elms acknowledged 7 testifying at the preliminary hearing that he previously 8 believed “Julio” was [Petitioner]’s brother and that at 9 that time he had thought there was a “Bam Bam” (Julio) in 10 the Townsend gang and a Little Bam Bam (defendant). 11 Elms opined Townsend’s primary activities were 12 narcotics sales and concealed firearm possession. He 13 described several crimes constituting predicate acts 14 committed by Townsend gang members. Elms conducted 15 background research on [Petitioner] by reviewing nine 16 Street Terrorism Enforcement and Prevention Act (STEP) 17 notice notices [sic],2 five field identification (FI) 18 cards, and 14 police reports. For example, according to 19 an April 9, 2014, STEP notice, [Petitioner] identified 20 himself as “Bam Bam from Townsend Street,” and stated he 21 22 2 A STEP notice 23 informs the recipient that he is associating with a known gang; that the gang engages in criminal activity; and 24 that, if the recipient commits certain crimes with gang members, he may face increased penalties for his conduct. 25 The issuing officer records the date and time the notice 26 is given, along with other identifying information like descriptions and tattoos, and the identification of the 27 recipient’s associates. 28 Sanchez, 63 Cal. 4th at 672. 10 1 had been in the gang since he was 14 years old. Other 2 STEP notices, FI cards and police reports dated between 3 2005 and 2014 contained similar information. 4 Based on this information and his interview with 5 defendant, Elms concluded [Petitioner] was an active 6 participant in the Townsend Street gang on the date of 7 the shooting. Elms also opined [Petitioner] knew 8 Townsend members engaged in a pattern of criminal 9 activity based on a court document reflecting 10 [Petitioner] previously admitted in court under penalty 11 of perjury committing an act with the intent to benefit 12 Townsend Street, which was a criminal street gang whose 13 members he knew had engaged in a pattern of criminal 14 activity. Elms conducted similar research on Santana and 15 concluded he was an active participant in Townsend Street 16 on the date of the shooting, and identified himself as 17 Casper, or “Huero,” meaning “white guy” or “white boy.” 18 Elms also reviewed STEP notices and FI cards related to 19 the victim Antonio, who had consistently admitted 20 membership in West Myrtle. Elms agreed West Myrtle had 21 other rivals. 22 Based on hypothetical questions reflecting the facts 23 of the case, Elms noted the tactical advantage of the 24 shooter riding in the rear seat because the shooter would 25 not have “to shoot in front of the driver.” He opined 26 the crime was committed “for the benefit of, at the 27 direction of, or in association with the street gang that 28 the people in that car were from,” noting it “would 11 1 benefit their reputation, it would benefit their status 2 . . . .” He explained that “gang members are expected to 3 put in work, they’re expected to commit crimes,” and “two 4 gang members were together [associating when they] 5 entered the rival gang member territory to commit a 6 crime.” Elms opined the hypothetical crime was committed 7 to assist and promote the gang, and benefitted and 8 promoted criminal conduct by members of the gang. The 9 violent crime elevated the assailants’ status within the 10 gang, and promoted the gang as a whole. 11 . . . 12 Elms and his partner spoke with [Petitioner] at the 13 station on the day of his arrest after advising him of 14 his rights . . . . The prosecutor played a recording of 15 the interview at trial. [Petitioner] initially denied 16 ever riding in a car with Santana or entering Myrtle 17 Street territory. He later admitted he might “sometimes” 18 take a shortcut through that area to get to work at the 19 swap meet. He then admitted “hang[ing] out” with 20 Santana, and riding in Santana’s sister’s Explorer. But 21 he denied riding in the Explorer with Santana, but then 22 admitted doing so with Santana and Santana’s “girl” on 23 occasion. He acknowledged he might have passed through 24 the Myrtle area, but not on Myrtle Street, earlier on the 25 evening of the shooting, around 6:00 or 7:00 p.m. 26 (Lodged Doc. 7 at 2-9); Aguilar, 2017 WL 6602368, at *1–4 (some 27 alterations in original). 28 12 1 STANDARD OF REVIEW 2 Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism 3 and Effective Death Penalty Act of 1996: 4 An application for a writ of habeas corpus on behalf 5 of a person in custody pursuant to the judgment of a 6 State court shall not be granted with respect to any 7 claim that was adjudicated on the merits in State court 8 proceedings unless the adjudication of the 9 claim — (1) resulted in a decision that was contrary to, 10 or involved an unreasonable application of, clearly 11 established Federal law, as determined by the Supreme 12 Court of the United States; or (2) resulted in a decision 13 that was based on an unreasonable determination of the 14 facts in light of the evidence presented in the State 15 court proceeding. 16 Under AEDPA, the “clearly established Federal law” that 17 controls federal habeas review consists of holdings of Supreme 18 Court cases “as of the time of the relevant state-court 19 decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). As the 20 Supreme Court has “repeatedly emphasized, . . . circuit precedent 21 does not constitute ‘clearly established Federal law, as 22 determined by the Supreme Court.’” Glebe v. Frost, 574 U.S. 21, 23 24 (2014) (per curiam) (quoting § 2254(d)(1)). 24 Although a particular state-court decision may be both 25 “contrary to” and “an unreasonable application of” controlling 26 Supreme Court law, the two phrases have distinct meanings. 27 Williams, 529 U.S. at 391, 412-13. A state-court decision is 28 “contrary to” clearly established federal law if it either 13 1 applies a rule that contradicts governing Supreme Court law or 2 reaches a result that differs from the result the Supreme Court 3 reached on “materially indistinguishable” facts. Early v. 4 Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation omitted). A 5 state court need not cite or even be aware of the controlling 6 Supreme Court cases, “so long as neither the reasoning nor the 7 result of the state-court decision contradicts them.” Id. 8 State-court decisions that are not “contrary to” Supreme 9 Court law may be set aside on federal habeas review only “if they 10 are not merely erroneous, but ‘an unreasonable application’ of 11 clearly established federal law, or based on ‘an unreasonable 12 determination of the facts’ (emphasis added).” Id. at 11 13 (quoting § 2254(d)). A state-court decision that correctly 14 identifies the governing legal rule may be rejected if it 15 unreasonably applies the rule to the facts of a particular case. 16 Williams, 529 U.S. at 407-08. To obtain federal habeas relief 17 for such an “unreasonable application,” however, a petitioner 18 must show that the state court’s application of Supreme Court law 19 was “objectively unreasonable.” Id. at 409. In other words, 20 habeas relief is warranted only if the state court’s ruling was 21 “so lacking in justification that there was an error well 22 understood and comprehended in existing law beyond any 23 possibility for fairminded disagreement.” Harrington v. Richter, 24 562 U.S. 86, 103 (2011). 25 Here, Petitioner raised his claim on direct appeal, and the 26 court rejected it on the merits in a reasoned decision. Given 27 the silent denial by the state supreme court, that decision is 28 the last reasoned one from any state court and the Court 14 1 therefore relies on it as the basis for the state court’s 2 judgment. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) 3 (rebuttable presumption exists that higher state court’s 4 unexplained decision “adopted the same reasoning” as last 5 reasoned state-court decision); see also Ylst v. Nunnemaker, 501 6 U.S. 797, 803 (1991) (applying presumption that “[w]here there 7 has been one reasoned state judgment rejecting a federal claim, 8 later unexplained orders upholding that judgment or rejecting the 9 same claim rest upon the same ground”). AEDPA deference limits 10 the Court’s review of a claim rejected on the merits, see 11 Richter, 562 U.S. at 100, as well as on the merits in the 12 alternative, see Clabourne v. Ryan, 745 F.3d 362, 383 (9th Cir. 13 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 14 798, 802 (9th Cir. 2015) (en banc). 15 DISCUSSION 16 Relying on Sanchez, Petitioner claims his Sixth Amendment 17 right to confront witnesses was violated when the trial court 18 permitted the prosecution’s gang expert to relay to the jury 19 hearsay he considered in concluding that Petitioner was the 20 individual identified by the eyewitness and was a Townsend gang 21 member.3 (See Pet. at 3; id., Mem. P. & A. at 9.) Respondent 22 argues that Petitioner’s failure to object to the expert’s 23 testimony bars federal habeas relief. (Answer at 2, ¶ V; id., 24 Mem. P. & A. at 8.) Because it is easier to dispose of the claim 25 26 3 To the extent Petitioner claims that that testimony was inadmissible hearsay under state law (see, e.g., Pet., Mem. P. & A. 27 at 3), the claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas 28 relief unavailable for violations of state law). 15 1 on the merits, the Court resolves it solely on that basis. See 2 Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); Franklin v. 3 Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). 4 Some of the Objected-to Evidence Was Not Testimonial Hearsay, and 5 Any Violation of the Confrontation Clause Was Harmless 6 Even assuming Petitioner’s claim is not procedurally barred, 7 it fails. 8 A. Applicable Law 9 The Confrontation Clause of the Sixth Amendment affords a 10 criminal defendant the right to cross-examine witnesses against 11 him. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). In 12 Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme 13 Court held that the clause bars “admission of testimonial 14 statements of a witness who did not appear at trial unless he was 15 unavailable to testify, and the defendant had had a prior 16 opportunity for cross-examination.” Conversely, the 17 Confrontation Clause does not bar nontestimonial statements. Id. 18 at 68; see Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is 19 the testimonial character of the statement that separates it from 20 other hearsay that, while subject to traditional limitations upon 21 hearsay evidence, is not subject to the Confrontation Clause.”). 22 Crawford did not spell out a comprehensive list of 23 “testimonial” statements but noted that they include (1) “ex 24 parte in-court testimony or its functional equivalent,” such as 25 affidavits, custodial examinations, prior testimony made without 26 cross-examination, and “similar pretrial statements that 27 declarants would reasonably expect to be used prosecutorially”; 28 (2) extrajudicial statements contained in formalized testimonial 16 1 materials; and (3) “statements that were made under circumstances 2 which would lead an objective witness reasonably to believe that 3 the statement would be available for use at a later trial.” 541 4 U.S. at 51-52 (citations omitted). 5 In 2016, the California Supreme Court held that “case- 6 specific out-of-court statements” relied on by a prosecution’s 7 gang expert, particularly when testifying about a defendant’s 8 association with or membership in a gang, may constitute 9 testimonial hearsay and violate the Confrontation Clause when the 10 expert presents them as true statements of fact without 11 independent proof by competent evidence. See Sanchez, 63 Cal. 12 4th at 686, 694-98. Courts have interpreted Sanchez to bar 13 expert-witness hearsay testimony only if it relates “to the 14 particular events and participants alleged to have been involved 15 in the case being tried.” People v. Vega–Robles, 9 Cal. App. 5th 16 382, 411 (2017) (no Sanchez error in admitting gang-expert 17 testimony about gang’s history and founding as well as activities 18 of other members not alleged to have participated in charged 19 crime); see also Hernandez v. Robertson, No. CV 18-08513-JGB 20 (AS), 2019 WL 4364948, at *7-8 (C.D. Cal. July 19, 2019) (finding 21 that state court reasonably concluded that gang expert’s 22 testimony about gang’s pattern of criminal activity based on 23 officers’ statements and field-interview cards about other gang 24 members was not case-specific under Sanchez), accepted by 2019 WL 25 4344275 (C.D. Cal. Sept. 11, 2019). 26 B. Court-of-Appeal Decision 27 The court of appeal found that some of the testimony 28 Petitioner challenges did not 17 1 fall under Sanchez’s proscription against experts 2 conveying hearsay evidence to the jury under the guise of 3 rendering an expert opinion. Instead, the material was 4 at most “routine” hearsay untethered to any expert 5 opinion. 6 (Lodged Doc. 7 at 10); Aguilar, 2017 WL 6602368, at *5. In 7 particular, 8 Elms’s testimony that he could not locate a “Julio” 9 Aguilar in any department records and that another search 10 showed [Petitioner]’s brother Juan was in prison at the 11 time of the shooting, and therefore could not have 12 committed the crime . . . f[e]ll outside Sanchez’s scope 13 because Elms did not rely on the result of these searches 14 as basis evidence for his conclusion [Petitioner] was a 15 gang member or any other opinion. Instead, he simply 16 disclosed the results of record searches he personally 17 performed. 18 (Lodged Doc. 7 at 13-14 (emphasis in original)); Aguilar, 2017 WL 19 6602368, at *7. 20 Noting that the state had “concede[d] that to the extent 21 Elms relayed to the jury the contents of police reports outside 22 his personal knowledge, and the reports reflected the 23 investigation of completed crimes, statements made in those 24 reports constituted testimonial hearsay,” the court of appeal 25 held that “any error [was] harmless” because Petitioner’s 26 “conduct and admissions in properly admitted testimony marked him 27 as a member of the Townsend Street gang.” (Lodged Doc. 7 at 14); 28 Aguilar, 2017 WL 6602368, at *7. It reasoned that 18 1 [m]uch of Elms’s testimony was based on personal 2 knowledge because he had conducted “heavy” patrols in 3 Townsend Street and West Myrtle Street gang territory and 4 personally interviewed [Petitioner] during the 5 investigation. . . . During that interview, [Petitioner] 6 made statements about his gang affiliation and Elms 7 personally observed [Petitioner]’s Townsend tattoos. 8 Independently admitted photograph evidence of 9 [Petitioner]’s tattoos also supports the gang expert’s 10 testimony. 11 . . . 12 Other properly admitted evidence duplicated 13 [Petitioner]’s admissions in the various STEP notices and 14 FI cards that he was a Townsend gang member. Maria V.’s 15 911 call, interview with police, and testimony at trial 16 all disclosed that [Petitioner] belonged to the gang and 17 went by the moniker Bam Bam. The jury could infer from 18 [Petitioner]’s presence at the meeting among several 19 Townsend members after the shooting that [he] was 20 currently active in the gang. Additionally, another 21 officer who testified, Officer Diaz, stated he knew 22 [Petitioner] was Bam Bam from the Townsend Street gang 23 based on his previous contacts with [Petitioner] in the 24 field. Moreover, defense counsel admitted [Petitioner] 25 was a gang member during closing argument, conceding the 26 issue. 27 The same is true regarding [Petitioner’s 28 codefendant] Santana. Other properly admitted evidence 19 1 duplicated information concerning his gang ties in the 2 STEP notices, FI cards, and police reports. As with 3 [Petitioner], Elms personally observed Santana’s gang 4 tattoos at the police station and the trial court 5 properly admitted photographs of the tattoos. Maria V.’s 6 911 call and interview also established evidence Santana 7 [w]as a member of the Townsend Street gang with the 8 moniker Little Casper. For all the foregoing reasons, 9 [Petitioner]’s hearsay and confrontation challenges under 10 Sanchez therefore fail. 11 (Lodged Doc. 7 at 14-15); Aguilar, 2017 WL 6602368, at *7-8. 12 C. Analysis 13 As an initial matter, to the extent Petitioner’s 14 Confrontation Clause claim rests on Sanchez, it is not cognizable 15 on federal habeas review because the U.S. Supreme Court has not 16 “clearly established that the admission of out-of-court 17 statements relied on by an expert violates the Confrontation 18 Clause.” Hill v. Virga, 588 F. App’x 723, 724 (9th Cir. 2014). 19 “Where the Supreme Court has not addressed an issue in its 20 holding, a state court adjudication of the issue . . . cannot be 21 contrary to, or an unreasonable application of, clearly 22 established federal law.” Stenson v. Lambert, 504 F.3d 873, 881 23 (9th Cir. 2007) (citation omitted); see Wright v. Van Patten, 552 24 U.S. 120, 126 (2008) (per curiam) (barring § 2254(d)(1) relief 25 “[b]ecause our cases give no clear answer to the question 26 presented, . . . [so] ‘it cannot be said that the state court 27 unreasonabl[y] appli[ed] clearly established Federal law.’” 28 (citation omitted; some alterations in original)). Thus, 20 1 Petitioner’s Sanchez claim fails. See, e.g., Peters v. Arnold, 2 765 F. App’x 389, 390 (9th Cir.) (holding that Sanchez “does not 3 count as clearly established federal law”), cert. denied, No. 19- 4 6057, 2019 WL 5686694 (U.S. Nov. 4, 2019). 5 At any rate, Petitioner has not shown that all of the 6 challenged evidence was testimonial hearsay or that even if some 7 of it was, any violation of the Confrontation Clause was not 8 harmless. Petitioner challenges Elms’s reliance on “information 9 contained in internal police reports” to conclude that he was the 10 assailant identified by the eyewitness, including reports 11 “showing there was no member of the Townsend Gang named Julio 12 Aguilar” — the name the eyewitness originally gave police — and 13 that “[P]etitioner’s brother Juan Aguilar could not have 14 committed the shooting[] because he was in prison.” (Pet., Mem. 15 P. & A. at 9.) As the appeal court noted, however, Elms’s trial 16 testimony “simply disclosed the results of record searches he 17 personally performed.” (Lodged Doc. 7 at 14); Aguilar, 2017 WL 18 6602368, at *7. Indeed, a witness may testify to the presence or 19 absence of something in agency records he searched without 20 implicating the Confrontation Clause. See United States v. 21 Norwood, 603 F.3d 1063, 1068 (9th Cir. 2010). Thus, Elms’s 22 testimony about the absence of “Julio Aguilar” in department 23 records was likely proper. Moreover, the administrative records 24 indicating that Petitioner’s brother Juan was in prison at the 25 time of the shooting likewise were probably not testimonial. See 26 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (records 27 “created for the administration of an entity’s affairs and not 28 for the purpose of establishing or proving some fact at trial 21 1 . . . are not testimonial”).4 2 But even as to the field-identification cards and police 3 reports that likely contained testimonial hearsay (see Lodged 4 Doc. 5 at 22 (Respondent conceding point on appeal)), any error 5 was harmless, as the court of appeal found. (See Lodged Doc. 7 6 at 14-15); Aguilar, 2017 WL 6602368, at *7; Brecht v. Abrahamson, 7 507 U.S. 619, 623 (1993) (constitutional error does not warrant 8 habeas relief unless it had substantial and injurious effect or 9 influence in determining jury’s verdict). Petitioner’s gang 10 affiliation and moniker were established by compelling 11 independent evidence. Elms testified that he personally 12 interviewed Petitioner (see Lodged Doc. 1, 2 Rep.’s Tr. at 348- 13 50; see id. at 349 (audio recording of that interview played for 14 jury)), who admitted he was Bam Bam (see Lodged Doc. 2, 2 Clerk’s 15 Tr. at 330), and he observed Petitioner’s gang tattoos after his 16 arrest (see Lodged Doc. 1, 2 Rep.’s Tr. at 340-42). Photographs 17 of those tattoos were shown to the jury. (Id.) In her properly 18 19 4 Petitioner also challenges the trial court’s admission of 20 Elms’s testimony that Petitioner knew that Townsend gang members had engaged in a pattern of criminal activity. (Pet., Mem. P. & A. 21 at 10; see Lodged Doc. 1, 2 Rep.’s Tr. at 377-79.) Although that 22 testimony may have violated state law against a gang expert’s offering his opinion on a defendant’s mental state (see Lodged Doc. 23 5 at 29 (state conceding that Elms’s testimony violated People v. Killebrew, 103 Cal. App. 4th 644, 658 (2002))), it poses no 24 Confrontation Clause issue. To the contrary, Elms based his opinion on Petitioner’s apparent admission in a previous court 25 proceeding, under penalty of perjury, that he knew Townsend gang 26 members had engaged in a pattern of criminal activity. (See Lodged Doc. 1, 2 Rep.’s Tr. at 379.) That is not testimonial hearsay. 27 See Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir. 2009) (recognizing that “cases involv[ing] the use of a defendant’s own 28 statements against him” do not implicate Sixth Amendment). 22 1 admitted 911 call, the eyewitness, a former Townsend gang member, 2 identified “Bam Bam” as the shooter and as someone she knew who 3 was “gang related from Townsend” (Lodged Doc. 1, 1 Rep.’s Tr. at 4 131-32; Lodged Doc. 2, 3 Clerk’s Tr. at 645), and at trial she 5 again identified Petitioner as Bam Bam and conceded that she had 6 told Elms that she saw Bam Bam in the back seat of the Ford 7 Explorer after the shooting (Lodged Doc. 1, 1 Rep.’s Tr. at 122- 8 23, 129). Officer Diaz testified that he knew Petitioner from 9 prior field contacts and that his street moniker was “Bam Bam.” 10 (Id., 2 Rep.’s Tr. at 251.) 11 Moreover, sufficient evidence demonstrated that Petitioner’s 12 codefendant, the driver during the shooting, was an active 13 Townsend gang member and that the victim was from a rival gang. 14 (See id. at 261-62 (Diaz testifying that he recognized victim as 15 West Myrtle gang member he knew from more than dozen prior 16 contacts), 35 (gang expert identifying Santana’s “South” and 17 “West” tattoos and testifying that they indicated he was member 18 of Townsend gang); Lodged Doc. 2, 3 Clerk’s Tr. at 645 19 (eyewitness identifying driver during 911 call as “Little Casper” 20 and his passenger, the shooter, as someone she knew to be “gang 21 related from Townsend”), 659 (eyewitness confirming during police 22 interview that Santana was Little Casper).) 23 Thus, any portions of Elms’s testimony admitted in error 24 would not have affected the jury’s verdict. See Legaspi v. 25 Barnes, No. 1:15-cv-00844 DAD MJS (HC), 2017 WL 25376, at *17 26 (E.D. Cal. Jan. 3, 2017) (finding any Sanchez error harmless when 27 sufficient admissible evidence showed “Petitioner’s gang 28 affiliation”); Morrison v. Montgomery, No. EDCV 16-00775-JFW 23 1|(KES), 2016 WL 8470182, at *11-12 (C.D. Cal. Dec. 29, 2016) (gang 2 jlexpert’s testimony as to “cumulative information .. . that 3 Petitioner was a member of [a gang]” did not affect jury’s 4 llverdict when “the [admissible] evidence that Petitioner was a 5 |lgang member was strong”), accepted by 2017 WL 981387 (C.D. Cal. 6 |IMar. 13, 2017). 7 Accordingly, habeas relief is not warranted. 8 ORDER 9 IT THEREFORE IS ORDERED that Judgment be entered denying the 10 Petition and dismissing this action with prejudice. 11 {= brerhlatl- 12 }DATED: January 17, 2020 JEAN ROSENBLUTH 13 U.S. MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24