Price v. Hartley

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCEL DESEAN PRICE, Case No.: 22cv775-GPC(KSC)

12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION AND DENYING AND DISMISSING 14 SEAN MOORE et al., AMENDED PETITION FOR WRIT 15 Defendant. OF HABEAS CORPUS 16 17

18 On July 13, 2023, Petitioner Marcel Desean Price (“Petitioner”), a state prisoner 19 proceeding pro se, filed an amended petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2254 challenging his conviction in San Diego Superior Court Case No. 21 SDC237121. (Dkt. No. 3, Am. Pet.1) Respondent filed an Answer and Notice of 22 Lodgment on November 17, 2022. (Dkt. Nos. 8, 9.) Petitioner did not file a Traverse. 23 On May 2, 2023, Magistrate Judge Karen S. Crawford issued a Report and 24 Recommendation (“Report”) that this Court deny the Petition. (Dkt. No. 21.) Petitioner 25 did not file an objection. 26 27 28 1 After careful consideration of the pleadings and relevant exhibits submitted by the 2 parties, the Court ADOPTS the Magistrate Judge’s Report denying the amended petition 3 for writ of habeas corpus, and DENIES a certificate of appealability. 4 Procedural Background 5 On June 21, 2019, a jury convicted Petitioner of three counts of attempted willful, 6 deliberate, and premediated murder in violation of California Penal Code (“Penal Code”) 7 sections 187(a), 189, and 664(a), three counts of assault with a firearm in violation of 8 Penal Code section 245(a)(2), and one count of possession of a firearm by a felon in 9 violation of Penal Code section 129800(a)(1). (Dkt. No. 9-2, Lodgment No. 2 at 262- 10 74.2) The jury also found true several firearm and great bodily injury enhancement 11 allegations pursuant to Penal Code sections 12022.5(a); 12022.53(b)-(d), and 12022.7(a). 12 (Id.) 13 On September 6, 2019, Petitioner was sentenced to an indeterminate term of seven 14 years to life on each of the attempted murder convictions, plus a consecutive term of 25 15 years to life on the firearm enhancement and a stay was imposed on the other convictions 16 and enhancements for an aggregate prison term of 96 years to life. (Dkt. No. 9-2, 17 Lodgment No. 2 at 390-92.) 18 Petitioner filed an appeal on October 23, 2019. (Id. at 327-28.) On March 5, 2021, 19 the Court of Appeal affirmed the judgment but remanded with direction that the trial 20 court correct the abstract of judgment to reflect that the correct sentence on counts 1, 2, 21 and 3 is life with the possibility of parole and not seven years to life. (Dkt. No. 9-26, 22 Lodgment No. 24.) Petitioner filed a petition for review with the California Supreme 23 Court which was denied on May 26, 2021. (Dkt. No. 9-27, Lodgment No. 25; Dkt. No. 24 9-28, Lodgment No. 26.) 25 26 27 28 1 On December 31, 2020, Petitioner filed a motion for resentencing under the new 2 sentencing reform legislation of 2018 seeking to strike the 75 years for gun 3 enhancements. (Dkt. No. 9-31, Lodgment No. 29.) On January 22, 2021, the Superior 4 Court of San Diego denied the motion for resentencing for lack of jurisdiction because 5 the case was on appeal. (Dkt. No. 9-32, Lodgment No. 30.) 6 On March 3, 2021, Petitioner filed a petition for writ of habeas corpus with the 7 Court of Appeal concerning the Superior Court’s denial of his motion for resentencing. 8 (Dkt. No. 9-29, Lodgment No. 27.) On March 9, 2021, the Court of Appeal denied the 9 petition of writ of habeas corpus. (Dkt. No. 9-30, Lodgment No. 28.) 10 On May 26, 2022, Petitioner filed a petition for writ of habeas corpus in this Court. 11 (Dkt. No. 1, Pet.) On July 13, 2022, an amended petition was filed. (Dkt. No. 3.) 12 Factual Background 13 This Court gives deference to state court findings of fact and presumes them to be 14 correct; Petitioner may rebut the presumption of correctness, but only by clear and 15 convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20, 16 35-36 (1992) (holding findings of historical fact, including inferences properly drawn 17 from these facts, are entitled to statutory presumption of correctness). Petitioner has not 18 challenged the state court’s findings of fact. Thus, the following facts are taken from the 19 unpublished California Court of Appeal opinion. (Dkt. No. 9-26, Lodgment No. 24; see 20 also People v. Price, 2021 WL 834793 (Ct. App. Mar. 5, 2021).) 21 22 During the night of June 8, 2018, and the early morning hours of June 9, 2018, Price, a Skyline (also known as East Side) Piru gang member, and 23 three other men, two of whom were associated with the O'Farrell Park 24 gang, were at a North Park bar drinking and socializing when Price and one of his companions, Ted Mercer, got into an altercation and fight 25 with others. Mercer was associated with the O'Farrell Park gang. A 26 security guard heard Mercer say, “Fuck you and Fuck East Side,” before the initial punch. Afterwards, Mercer yelled that they had gotten “maxed 27 out,” meaning they got beat up or lost the fight. He was injured and 28 angry, feeling that the bouncers had thrown him back into the fight. 1 When the fight was over, security guards would not let Price or Mercer back into the bar. When Price and Mercer tried to reenter, two of the 2 guards grabbed Price and tried to flip him over a railing. Mercer slapped 3 one of the guards and the guard responded by punching him a few times in the face. Price and Mercer finally left the bar with their group, angry 4 about what had happened there. While in the car driving away from the 5 bar, Mercer exchanged calls with Hune using the phone of a friend who was at the bar that night. 6

7 At about 2:50 a.m., two of the security guards were standing outside the bar when they heard gunshots. One of the guards was shot in the upper 8 chest area. Witnesses hearing the gunshots saw a black Chrysler 300, 9 later determined to be registered to Hune, speeding down an adjacent street. One witness saw an individual run into the car after the gunshots 10 and described him as an African-American male, five feet nine inches to 11 six feet one inch tall, with a medium build on the slender side, wearing baggy clothes and a dark sweatshirt with a hood over his head.3 The man 12 appeared to be shoving something inside his waistband. 13 San Diego Police Department Detective Andrew Tafoya was assigned to 14 the matter. He contacted the bar's manager and sought out surveillance 15 video from surrounding businesses. He identified the men in the bar video by asking a gang unit detective if she recognized the men from the 16 bar that night, and from that he was able to identify Price and Jordan 17 Bingham. Detective Tafoya also viewed surveillance footage from the bar on June 8 showing Price and his colleagues entering the bar and the 18 fight that ensued. The video showed the clothing and shoes Price was 19 wearing that night. Detective Tafoya obtained surveillance footage from other local businesses that showed a black Chrysler 300 pull up and a 20 male exit the car and commit the shooting, which occurred around 2:52 21 a.m. The video showed the vehicle pull up at 2:51 a.m. and a man exit the passenger side within 10 seconds. It also showed the first six 22 numbers of the car's license plate, leading to records establishing that the 23 car was Hune's. Detective Tafoya compared still photographs of the surveillance footage from the bar with the other business, and testified 24 based on the similarities in clothing and shoe markings, as well as Price's 25 height, stature and gait, that he believed the male who exited the 26

27 3 Price fit this description, as he is six feet one inch tall and weighed 165 pounds around the time of his 28 1 Chrysler 300 was Price. The detective also obtained a photograph from Jordan Bingham's Facebook page showing Bingham and Price together 2 on June 8, throwing what appeared to be gang signs. 3 Officers arrested Price about 12 days after the shooting. In a jail 4 telephone call later that month, Price told the call recipient, “I'm done.” 5 Though he said he “didn't do nothing,” he also said he had “fucked up” and was “fucked right now . . . but it's my fault. The only person I'm mad 6 at is me. I'm not upset with nobody else but myself.” The Chrysler 300 7 was later located in the Rancho Cucamonga area.

9 Price, 2021 WL 834793, at *2-3. 10 Discussion 11 A. Standard of Review of Magistrate Judge’s Report and Recommendation 12 In reviewing a magistrate judge’s report and recommendation, a district court 13 “must make a de novo determination of those portions of the report . . . to which 14 objection is made” and “may accept, reject, or modify, in whole or in part, the findings or 15 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 16 72(b); see also United States v. Raddatz, 447 U.S. 667, 675 (1980). 17 Where a party fails to object, however, the court is not required to conduct “any 18 review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 19 U.S. 140, 149 (1985) (“We are therefore not persuaded that the statute positively requires 20 some lesser review by the district court when no objections are filed.”); United States v. 21 22 23 4 The detective testified about Price's clothing depicted in the bar footage: “[A]round the waist area going down appearing [sic] to be an identical match to the pants and shoes that are seen on the video 24 from [the neighboring business]. Just the bulkiness of the pants around the thigh area and then it comes 25 down and slims down some and then kind of goes straight down. And the shoes, the description of the shoes being an Adidas shoe, like a mesh material almost with, like, a plastic three stripe for the Adidas 26 logo on the sides.” When asked what he noticed when he compared the two portions of video, he said: “Just the bagginess or lack thereof around the leg area, the thigh. It appeared to be similar. It wasn't a 27 baggie, it wasn't a super-tight fit. And then as you come down the leg, again, it's more like a fitted look than a baggie or skinny jeans. And then as you keep going down, just the way the pants sit on the shoe 28 1 Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“statute makes it clear that the 2 district judge must review the magistrate judge’s findings and recommendations de novo 3 if objection is made, but not otherwise”); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 4 (9th Cir. 2005) (“Of course, de novo review of a R&R is only required when an objection 5 is made to the R&R”) (citing Reyna-Tapia, 328 F.3d at 1121); see also Schmidt v. 6 Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (interpreting Ninth Circuit's 7 decision in Reyna–Tapia as adopting the view that district courts are not required to 8 review “any issue that is not the subject of an objection”). Here, Petitioner did not file an 9 objection. 10 B. Standard of Review 11 The petition is governed by the provisions of the Antiterrorism and Effective Death 12 Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under 13 AEDPA, a habeas petition will not be granted unless the adjudication: “(1) resulted in a 14 decision that was contrary to, or involved an unreasonable application of, clearly 15 established Federal law, as determined by the Supreme Court of the United States; or (2) 16 resulted in a decision that was based on an unreasonable determination of the facts in 17 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see 18 also Early v. Packer, 537 U.S. 3, 8 (2002). 19 A state court’s decision may be “contrary to” clearly established Supreme Court 20 precedent “if the state court applies a rule that contradicts the governing law set forth in 21 [the Court’s] cases” or “if the state court confronts a set of facts that are materially 22 indistinguishable from a decision of [the] Court and nevertheless arrives at a result 23 different from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 24 (2000). A state court decision may involve an “unreasonable application” of clearly 25 established federal law, “if the state court identifies the correct governing legal rule from 26 this Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s 27 case.” Id. at 407. Under the “unreasonable application” clause, “a federal habeas court 28 may not issue the writ simply because that court concludes in its independent judgment 1 that the relevant state-court decision applied clearly established federal law erroneously 2 or incorrectly. Rather, that application must also be [objectively] unreasonable.” Id. at 3 409, 411; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (unreasonable 4 application must be objectively unreasonable). In other words, relief is available “if, and 5 only if, it is so obvious that a clearly established rule applies to a given set of facts that 6 there could be no ‘fairminded disagreement’ on the question.” White v. Woodall, 572 7 U.S. 415, 427 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). This is 8 an extraordinarily deferential standard of review. Medina v. Hornung, 386 F.3d 872, 877 9 (9th Cir. 2004). Clearly established federal law “refers to the holdings, as opposed to the 10 dicta, of [the United States Supreme] Court’s decisions as of the time of the relevant 11 state-court decision.” Lockyer, 538 U.S. at 71-72. 12 Where there is no reasoned decision from the state’s highest court, the Court 13 “looks through” to the underlying appellate court decision and presumes it provides the 14 basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 15 797, 805-06 (1991). A state court need not cite Supreme Court precedent when resolving 16 a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). “[S]o long as neither the 17 reasoning nor the result of the state-court decision contradicts [Supreme Court 18 precedent,]” the state court decision will not be “contrary to” clearly established federal 19 law. Id. 20 C. Procedural Default 21 Respondent argues that Ground Two, regarding the detective’s identification 22 testimony, and Ground Three, challenging a witness’ testimony about his reluctance to 23 testify, are procedurally defaulted because Petitioner failed to raise these objections at 24 trial and the Court of Appeal held that he forfeited these claims by failing to object at trial 25 and preserving them for appeal. (Dkt. No. 8-1 at 9.) 26 “Procedural bar issues are not infrequently more complex than the merits issues 27 presented by the appeal, so it may well make sense in some instances to proceed to the 28 merits if the result will be the same.” Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 1 2002) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (stating that where it is 2 easier to resolve a petitioner's claims on the merits, the interests of judicial economy 3 counsel against deciding the often more complicated issue of procedural default)). Here, 4 the Court finds the interests of judicial economy support denying the claim on the merits 5 without determining whether Grounds Two and Three have been procedurally defaulted. 6 See Harris v. California Dep’t of Corrections and Rehabilitation, Case No. CV 20-6935- 7 RGK (JEM), 2023 WL 2191367, at *17 (C.D. Cal. Jan. 18, 2023) (“Federal courts may 8 address allegedly defaulted habeas claims on the merits if the lack of merit is clear but the 9 procedural default issues are not.”). Thus, the Court addresses the merits of the habeas 10 petition. 11 D. Right to Fair Trial under the Due Process Clause 12 Petitioner alleges that his due process rights to a fair trial were violated when 1) 13 irrelevant and prejudicial evidence about his gang membership and other gang evidence 14 was admitted against him in a “non-gang” case, (Dkt. No. 3, Am. Pet. at 6-275); 2) when 15 a detective offered lay opinion testimony on surveillance videos on the issue of 16 Petitioner’s guilt, (id., Am. Pet. at 28-33); and 3) when the prosecution elicited testimony 17 from a witness about his fear of testifying at trial because the defendant was a gang 18 member, (id., Am. Pet. at 33-39).6 Respondent argues that challenges to state court 19 evidentiary rulings provide no basis for federal habeas relief, there is lack of controlling 20 precedent by the United States Supreme Court, and Petitioner’s claims are without merit 21 pursuant to the re-litigation bar under § 2254. (Dkt. No. 8-1 at 9-16.) 22 Petitioner’s claims concern the alleged admission of prejudicial and propensity 23 evidence during his state court trial. As a starting point, “federal habeas corpus relief 24 does not lie for errors of state law”, Wilson v. Corcoran, 562 U.S. 1, 4 (2010) (quoting 25

26 5 Page numbers in the parties’ briefing are based on the CM/ECF pagination. 27 6 The Court notes that the arguments raised are identical to the arguments raised before the California Supreme Court and almost identical to the opening brief with the Court of Appeal. (See Dkt. No. 9-27, 28 1 Estelle v. McGuire, 502 U.S. 62, 67 (1991)), and particularly federal habeas courts “do 2 not review questions of state evidence law.” Jammal v. Van de Kamp, 926 F.2d 918, 919 3 (9th Cir. 1991). A petitioner may not “transform a state-law issue into a federal one 4 merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 5 (9th Cir. 1997). Here, to the extent Petitioner’s due process claims are based on state 6 evidence law, they must be denied. 7 Next, Petitioner alleges violations of his due process rights to a fair trial under 8 AEDPA based on allegedly prejudicial and propensity evidence. Under AEDPA, 9 Petitioner must show that the state court’s decision was contrary to “clearly established 10 Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 11 2254(d). Clearly established federal law “refers to the holdings, as opposed to the dicta, 12 of [the United States Supreme] Court’s decisions.” Williams, 529 U.S. at 412; Andrade, 13 538 U.S. at 75-76; see Smith v. Patrick, 508 F.3d 1256 (9th Cir. 2007) (discussing 14 meaning of “clearly established federal law”); Greene v. Fisher, 565 U.S. 34, 38 (2011) 15 (holding that “clearly established federal law” is the law in existence at the time the state 16 court adjudication under review is announced). 17 Petitioner has not identified any Supreme Court precedent addressing his 18 evidentiary due process claims. Further, the Ninth Circuit has recognized that the 19 Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly 20 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 21 the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (“even clearly 22 erroneous admissions of evidence that render a trial fundamentally unfair may not permit 23 the grant of federal habeas corpus relief if not forbidden by ‘clearly established Federal 24 law,’ as laid out by the Supreme Court.”);7 see Estelle, 502 U.S. at 75 n.5 (leaving open 25 26 27 7 In Holley, the court recognized that under Ninth Circuit authority, the admission of evidence resulted in a trial that was fundamentally unfair but since there was not “clearly established” Supreme Court 28 1 whether admission of irrelevant evidence or prior crimes evidence could violate due 2 process). In addition, the Supreme Court has not addressed whether the admission of 3 propensity evidence violates due process. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th 4 Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to 5 introduction of propensity evidence, where petitioner could point to no Supreme Court 6 precedent establishing that admission of otherwise relevant propensity evidence violated 7 the Constitution); Alberni v. McDaniel, 458 F.3d 860, 867 (9th Cir. 2006), cert. denied, 8 549 U.S. 1287 (2007) (“The [due process] right [concerning the introduction of 9 propensity evidence and the prosecutor’s comments on them that Petitioner] asserts has 10 not been clearly established by the Supreme Court, as required by AEDPA. The district 11 court did not err in denying [the] petition on due process grounds.”); Jennings v. Runnels, 12 493 Fed. App'x 903, 906 (9th Cir. 2012), cert. denied, 135 S. Ct. 96 (2014) (the Supreme 13 Court has not held that propensity evidence violates Due Process, and the “absence of 14 Supreme Court precedent on point forecloses any argument that the state court's decision 15 [denying challenge to admission of propensity evidence] was contrary to or an 16 unreasonable application of clearly established federal law”) (citation omitted). 17 More specifically on Grounds One and Three, Petitioner has not identified and the 18 Court has not found any Supreme Court precedent addressing whether the admission of 19 propensity or unduly prejudicial evidence concerning gang affiliation or gang evidence 20 violates due process; thus, habeas relief is barred. See Pena v. Tilton, 578 Fed. Appx. 21 695, 695 (9th Cir. 2014) (finding the state court's determination that admission of gang- 22 related evidence did not violate the petitioner's due process rights was not contrary to 23 clearly established federal law relying on Holley); Mora v. Lynch, No. CV 17-7143-MCS 24 (AGR), 2021 WL 2791971, at *5 (C.D. Cal. Feb. 18, 2021), report and recommendation 25 adopted by 2021 WL 4594297 (Oct. 6, 2021) (denying due process violation claim based 26 on admission of gang evidence as there is no “clearly established law”); Lewis v. Arnold, 27 Case No. CV 16-5714-CAS (JEM), 2019 WL 6188624, at *16 (C.D. Cal. Oct. 17, 2019), 28 report and recommendation adopted by 2019 WL 6170724 (Nov. 19, 2019) (denying 1 federal habeas relief on claim that admission of gang evidence violated due process 2 because Supreme Court has not clearly held that admission of irrelevant or prejudicial 3 evidence violates due process so as to warrant federal habeas relief); Bryant v. Foulk, No. 4 2:13–cv–1750–MCE–GGH (HC), 2014 WL 5454224, at *9 (E.D. Cal. Oct. 29, 2014) 5 (“due process claim here does not support federal habeas relief under AEDPA because 6 the admission of evidence at trial regarding petitioner's gang membership, gang activities, 7 and a letter purportedly authored by petitioner did not violate any clearly established 8 federal law”). Because the Supreme Court has not addressed the three issues raised in the 9 petition, the Court concludes that the Court of Appeal decision did not unreasonably 10 apply Supreme Court precedent and DENIES the Petition. See also Greel v. Martel, 472 11 Fed. Appx. 503, 504 (9th Cir. 2012) (under Holley, there is “no clearly established 12 federal law that admitting prejudicial evidence [admission of evidence of sexual 13 misconduct to show propensity] violates due process”); Earle v. Paramo, No. CV 18- 14 05279-JAK (AGR), 2021 WL 2270702, at *22 (C.D. Cal. May 14, 2021) (“[t]he absence 15 of Supreme Court holdings that admission of propensity or unduly prejudicial evidence 16 violates due process precludes relief under § 2254(d)”). 17 Finally, even if the due process claims were not barred by AEDPA, Petitioner had 18 not shown a due process violation. A due process violation occurs when the admission of 19 evidence “is so extremely unfair that its admission violates fundamental conceptions of 20 justice.” Perry v. New Hampshire, 565 U.S. 228, 237 (2012) (concerning police 21 eyewitness identification). “It is well settled that a state court's evidentiary ruling, even if 22 erroneous, is grounds for federal habeas relief only if it renders the state proceedings so 23 fundamentally unfair as to violate due process.” Demetrulias v. Davis, 14 F.4th 898, 907 24 (9th Cir. 2021) (quoting Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999) and citing 25 Jammal, 926 F.2d at 919 (“[I]t is certainly possible to have a fair trial even when state 26 standards are violated . . .”). In the Ninth Circuit, “[o]nly if there are no permissible 27 inferences the jury can draw from the evidence can its admission violate due process.” 28 Jammal, 926 F.2d at 920; McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.), cert. denied, 1 510 U.S. 1020 (1993); see also Estelle, 502 U.S. at 70 (where the challenged evidence is 2 relevant to an issue in the case, its admission cannot be said to have violated the 3 defendant's due process rights). “Even then, the evidence must ‘be of such quality as 4 necessarily prevents a fair trial.’” Jammal, 926 F.2d at 920 (citation omitted). The Court 5 next considers each of Petitioner’s claims. 6 1. Admitting Irrelevant and Prejudicial Gang Evidence 7 Petitioner argues that his due process right to a fair trial was violated when the trial 8 court allowed Detective Castillo, a gang expert, to testify about his gang membership and 9 other gang evidence which was not relevant to any of the charges in the case. (Dkt. No. 10 3, Am. Pet. at 6-27.) Respondent maintains that the Court of Appeal properly held that 11 there was no due process violation. (Dkt. No. 8-1 at 13-14.) 12 The Court of Appeal held that Petitioner’s federal due process rights were not 13 violated because the gang-related evidence allowed the jury to draw permissible 14 inferences as to Petitioner’s motive and intent. (Dkt. No. 9-26, Lodgment 24 at 20.) 15 Before trial, when the case was proceeding against both Price and Hune, the People moved to admit evidence of Price's and Hune's gang affiliations and 16 gang culture—specifically, among other things, the significance of June 8 as 17 a day of celebration and the importance of respect—to prove motive, Price and Hune's shared intent, and knowledge. They argued that while motive 18 was not an element of any crime, the gang evidence could be admitted as 19 relevant to that issue and others such as identity and modus operandi. They also argued gang affiliation could be relevant to proving the codefendants' 20 relationship with one another and their involvement in the charged crime. 21 The People argued that the evidence was relevant to help explain why the defendants would react so violently to a “seemingly innocuous situation at a 22 bar”; that in the present case, “there is no other explanation for the crime but 23 the fact that Price felt the need to retaliate and intimidate the security guards due to his affiliations and the culture of gang criminal behavior.” Price 24 moved to exclude the evidence on grounds its probative value, if any, was 25 outweighed by its prejudicial effect.

26 At arguments on the motions, Price's counsel objected to admission of 27 testimony concerning Price's documented gang member status, arguing Price was not provided due process as the documentation oftentimes is done 28 1 without a person's knowledge. Counsel pointed out there was no gang connection to the victims, the location or why the incident started; that the 2 occurrence was completely unrelated to any gang activity. He argued that 3 the reference to June 8 “would be to paint the picture of a day of mayhem or just a lawless day,” and unfairly depicted his client as a “monster” on that 4 day. He argued Facebook posts showing his client throwing gang signs shed 5 an unfairly prejudicial light on Price. The People acknowledged they did not allege a section 186.22 gang allegation because no gang rivals were 6 involved. The prosecutor argued, however, that “the gang mentality, the 7 gang connection, that association and that sense of needing to ban together to retaliate in obligation to one another is what makes it relevant.” She 8 argued it was evidence that “helps to explain really the unexplainable” to the 9 jury.

10 The court granted the motion, finding the gang evidence had “some 11 significant probative value” on motive and intent that was not outweighed by its prejudicial effect in misleading or confusing the jury, or prolonging the 12 trial. In response to further argument from codefendant Hune's counsel, the 13 court explained it would not permit the expert to opine that on the particular day Hune had a certain intent or motive, but it was proper for the expert to 14 testify that the gang allegiance meant individuals had a sense of obligation to 15 help fellow gang members or associates under certain circumstances.

16 At trial, San Diego Police Department Detective Joseph Castillo, a gang 17 detective responsible for monitoring the East Side/Skyline Piru and O'Farrell Park Banksters street gangs, testified about the Skyline and O'Farrell Park 18 gangs' history and territory, as well as the importance of respect and loyalty 19 in the gang culture. Detective Castillo testified that the two gangs were allies: the same gang with different boundaries. He explained that based on 20 the significance of the numbers 6 and 8, June 8 was a Skyline and O'Farrell 21 Park gang “holiday” on which the members would have parties or barbeques. Detective Castillo testified that in June 2018, Price was a Skyline 22 gang member going by the moniker Baby AB. The detective identified Price 23 and others, including Jordan Bingham, in photographs throwing gang signs. Detective Castillo testified that Hune was known to be an O'Farrell Park 24 gang associate going by the moniker YG Boolin or Boolin YG. The 25 detective recalled that in October 2017, he and his partner had seen Hune driving a black Chrysler 300. 26

27 The prosecutor gave Detective Castillo a hypothetical, asking him if a Skyline gang member would feel disrespected if he were at a bar and got 28 1 into a fight but was on the losing end, and then was beaten up and physically ejected by security guards. The detective responded that “[w]ithout a doubt” 2 he would feel disrespected and would be expected to do something as a gang 3 member to retaliate or else be chastised as a “buster”—a gang member unwilling to commit crimes. When asked whether an accompanying gang 4 member who ran away when his colleague got beat up by security guards 5 would have a bigger concern about respect among his gang members, Detective Castillo testified that he also would be expected to retaliate. The 6 disrespect would be more intensified if the incident occurred on the gang 7 “holiday.” The detective also agreed that if an O'Farrell Park gang associate was getting beaten up and was accompanied by a Skyline gang member, the 8 Skyline gang member would be expected to back him up, or also get 9 involved in the fight. If the gang member ran away from the fight, he could be in a position of getting beat up by the gang or worse, for not helping out. 10

11 (Dkt. No. 9-26, Lodgment No. 24 at 7-9; see also Dkt. No. 9-1, Lodgment 1 at 38-48; 12 Dkt. No. 9-7, Lodgment No. 5 at 217-18, 225-26; Dkt. No. 9-4, Lodgment No. 2 at 346; 13 Dkt. No. 9-19, Lodgment No. 17 at 2333-63, 2345-46; 2349-51; 2359-61; 2383-84.) 14 At trial, the gang evidence was relevant to explain why Price had a violent reaction 15 to what might otherwise appear to be a minor incident. The importance of respect in 16 gang culture, which was heightened on June 8, a gang “holiday”, was relevant to Price’s 17 motive for the shooting as he would be expected to retaliate when Hune, an ally gang 18 member, was beaten up; otherwise, he would be ostracized or get beaten up himself. See 19 Windham v. Merkle, 163 F.3d 1092, 1102-03 (9th Cir. 1998) (evidence of gang 20 involvement properly admitted to show motive for participating in alleged crimes); Davis 21 v. Felker, 558 F. Supp. 2d 1008, 1018 (C.D. Cal. 2008) (finding gang evidence properly 22 admitted to show motive for seemingly random crime even when defendant faced no 23 independent gang charges or enhancements). 24 Moreover, at the conclusion of the trial, the trial court provided a limiting 25 instruction as to the limited purpose of the gang evidence. The jury was instructed to use 26 the “gang activity” evidence only for the limited purpose of determining Petitioner’s 27 “intent to kill” and “motive to commit” the crime and could be considered to evaluate the 28 1 credibility of the witness but could not be used for any other purpose or that the 2 defendant is a person of bad character or that he has a disposition to commit the crime. 3 (Dkt. No. 9-2, Lodgment No. 2 at 234.) Therefore, because courts presume juries follow 4 the court’s limiting instruction, United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 5 1995), in this case, the jury did not reach its verdict based on any impermissible 6 inferences. See Nguyen v. McGrath, 323 F. Supp. 2d 1007, 1027 (N.D. Cal. 2004). 7 Because there were permissible inferences the jury could draw from the gang 8 evidence as to Petitioner’s intent and motive for the shooting, Petitioner’s due process 9 claim is without merit; therefore, the Court DENIES the petition for writ of habeas 10 corpus on Ground One. See Jammal, 926 F.2d at 920. 11 2. Admission of Lay Opinion Testimony Relying on Surveillance Videos 12 Petitioner next argues that his due process right to a fair trial was violated when the 13 trial court allowed Police Detective Tafoya to identify Petitioner as the shooter based on 14 surveillance videos. (Dkt. No. 3, Am. Pet. at 28-33.) Respondent maintains that the 15 Court of Appeal properly found that the foundational requirements for lay opinion 16 testimony were met, and, in any event, the jurors themselves watched the surveillance 17 videos. (Dkt. No. 8-1 at 15-16.) 18 The Court of Appeal concluded that Detective Tafoya’s testimony was proper lay 19 opinion testimony because it was rationally based on the witness’ perception even when 20 he became familiar with Petitioner’s appearance after the crimes occurred. (Dkt. No. 9- 21 26, Lodgment No. 24 at 22-24.) It also held that Detective Tafoya did not identify 22 Petitioner as the shooter or offer an opinion on whether he was guilty but identified 23 Petitioner as the individual exiting the vehicle. (Id. at 24.) 24 At trial, Detective Andrew Tafoya testified about the identity of the persons in still 25 photos of surveillance videos taken from the Bluefoot Bar, the location of the shooting 26 incident, and video footage from a nearby jewelry store. (Dkt. No. 9-17, Lodgment No. 27 15 at 1851, 1857.) He identified the man on the video coming out of the passenger side 28 of the Chrysler 300 at the time of the shooting as Petitioner. (Id. at 1857, 1876:21- 1 1877:19.) Detective Tafoya compared the pants and shoes of Petitioner from the 2 Bluefoot Bar and from the jewelry store. (Id. at 1876-77.) 3 As discussed above, the admission of evidence can violate due process “[o]nly if 4 there are no permissible inferences the jury can draw from the evidence can its admission 5 violate due process.” Jammal, 926 F.2d at 920; see also Estelle, 502 U.S. at 70 (because 6 challenged evidence was “relevant to an issue in the case,” its admission did not violate 7 due process). In this case, because there existed an inference that the jury could draw 8 from Detective Tafoya’s testimony identifying the person getting out of the Chrysler 300, 9 Petitioner has not shown a due process violation. See Adame v. Robertson, Case No. 10 8:20-cv-02058-CJC (GJS), 2021 WL 1725520, at *8 (C.D. Cal. Mar. 17, 2021) (officer’s 11 testimony that the petitioner was the man depicted in the Walgreens video was relevant 12 on the question of identity and the jury could draw a permissible inference from the 13 testimony); Figueroa v. Baughman, Case No. 2:17-cv-02032-BRO (SK), 2017 WL 14 6560059, at *2 (C.D. Cal. Oct. 6, 2017), report and recommendation adopted by 2017 15 WL 6557424 (Dec. 20, 2017) (“Just because, as Petitioner contends, the video quality 16 may have been unclear and the officers had limited prior contacts with him does not 17 render their testimony inadmissible or prejudicial.”). 18 Moreover, the surveillance videos and still pictures were admitted into evidence 19 and the jury was instructed to either accept or not accept lay witness opinions as true and 20 give whatever weight it thinks is appropriate. (Dkt. No. 9-2, Lodgment No. 2 at 228.) 21 Ultimately, the jury could compare and decide if Petitioner was the same man depicted 22 on both videos. (Dkt. No. 9-1, Lodgment No. 1 at 101-02.) Thus, the Court DENIES the 23 Petition on Ground Two. See Adame, 2021 WL 1725520, at *8 (jury, under its 24 instructions, was to make its own determination on the question of identification and, in 25 doing so, to decide whether or not to credit the witness testimony on the issue; therefore, 26 officer’s identification testimony did not prevent a fair trial); Figueroa, 2017 WL 27 6560059, at *2 (no due process violation because the credibility or weight of police 28 officers’ identifications were to be assessed by the jury). 1 3. Admission of Security Guard Witness’ Testimony About Fear of 2 Testifying 3 Lastly, Petitioner claims his due process right to a fair trial was violated when 4 A.T., a security guard on the night of the incident, testified that he was reluctant to testify 5 when he learned Petitioner was a gang member. (Dkt. No. 3, Am. Pet. at 33-36.) 6 Petitioner argues that A.T.’s fear had no relevance since there was no evidence he was 7 threatened by Petitioner or that he was subject to retaliation. (Id.) Respondent disagrees. 8 (Dkt. No. 8-1 at 16.) 9 The Court of Appeal held that Petitioner’s claim for violation of his due process 10 right to fair trial was without merit because the testimony that A.T. knew that Petitioner 11 was a gang member was related and probative to explain his reluctance or fear of 12 testifying and the credibility of his testimony when he failed to identify Petitioner. (Dkt. 13 No. 9-26, Lodgment No. 24 at 25-26.) 14 At trial, the People called A.T., one of the security guards present during the shooting. A.T. was working at the bar and observed the aftermath of the 15 fight and Price and his group's exit. However he was unable to identify Price 16 as one of the men involved in the fight. Afterwards, outside the jury's presence, the prosecutor asked A.T. if he had messaged an investigator about 17 his belief that the defendants were from Skyline or O'Farrell, and he 18 explained the investigator had told him the defendants were from those gangs and if anything happened, they could do witness protection. 19 Afterwards, the prosecutor asked the court to pursue that issue before the 20 jury as going to A.T.'s “state of mind as to why he is being hesitant to identify anyone.” Hune's counsel responded: “If she goes into it, then I think 21 we can go into how he received that information.” The court said, “Well, of 22 course,” and he replied, “No problem.”

23 The prosecutor thereafter asked A.T. whether he was reluctant to call the 24 investigator back, and he confirmed he “didn't want to be involved.” She asked: “Do you have any concerns for your personal safety coming to court 25 to testify?” A.T. responded: “Well, I mean, [the investigator] had mentioned 26 that the guys were possibly gang members and ... the paperwork alone says you are reporting to the gang part of the court, and then—the gang 27 prosecution part, you know. So that's a little, you know, odd, makes you not 28 want to really show up. And then he also said, you know, we are not worried 1 about it but we can offer witness protection and things if it seems like something might happen. So once people start saying those kind of things, 2 yeah, it does make you concerned. I have kids that are with me all the time.” 3 4 (Dkt. No. 9-2, Lodgment No. 24 at 24-25; see also Dkt. No. 9-14, Lodgment No. 12 at 5 1166:2-1167:14; 1172:17-1173:18; 1175:27-1176:19.) 6 Here, permissible inferences could be drawn from the gang related threat evidence 7 concerning A.T.’s credibility and his reluctance to testify. See Von Schert v. Warden, 8 Case No. SA CV 18-992 SJO (RAO), 2018 WL 5733751, at *7 (C.D. Cal. Sept. 27, 9 2018), report and recommendation adopted by 2018 WL 5734655 (Oct. 31, 2018) 10 (because permissible inferences, concerning witness’ credibility, could be drawn from the 11 threat evidence, there was no due process violation) (citing Britt v. Montgomery, Case 12 No. CV 16-06694-AB (AS), 2017 WL 2664210, at *15 (C.D. Cal. Feb. 22, 2017) 13 (holding no due process violation where threat evidence was relevant to the issue of 14 evaluating the witness’s credibility); Baldwin v. Adams, 899 F. Supp. 2d 889, 907-08 15 (N.D. Cal. 2012) (holding no due process violation where evidence of threats from 16 unidentified third party was used to show witness’s state of mind, which was relevant to 17 his credibility); Padilla v. Jacquez, No. EDCV 07-00353 DDP (SS), 2010 WL 2598130, 18 at *8-9 (C.D. Cal. Apr. 8, 2010) (holding admission of evidence of anonymous threats 19 made to witness was relevant to prove her credibility)). Moreover, the jury was provided 20 with limiting instructions concerning the gang evidence. (Dkt. No. 9-2, Lodgment No. 2 21 at 234.) As such, the trial court’s admission of gang threat evidence did not render 22 Petitioner’s trial so “fundamentally unfair” as to violate due process. See Demetrulias, 23 14 F.4th at 907. Therefore, the Court DENIES the Petition on Ground Three. 24 E. Certificate of Appealability 25 Rule 11 of the Federal Rules Governing Section 2254 Cases states, the district 26 court must “issue or deny a certificate of appealability when it enters a final order adverse 27 to the applicant.” A certificate of appealability may be issued “only if the applicant has 28 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 1 2253(c)(2). To make a substantial showing of the denial of a constitutional right, the 2 || petitioner must demonstrate that “reasonable jurists could debate whether (or, for that 3 matter, agree that) the petition should have been resolved in a different manner or that the 4 ||issues presented were adequate to deserve encouragement to proceed further.” Slack v. 5 || McDaniel, 529 U.S. 473, 484 (2000) Ginternal quotation and citation omitted). 6 In this case, Petitioner has not made a required substantial showing of the denial of 7 constitutional right to justify the issuance of a certificate of appealability. Reasonable 8 || jurists would not find the Court’s determination that Petitioner is not entitled to federal 9 ||habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. 10 || See id. Therefore, the Court DENIES a certificate of appealability. 11 Conclusion 12 Based on the above, the Court ADOPTS the Report and Recommendation and 13 || DENIES and DISMISSES the amended petition for writ of habeas corpus. The Court 14 ||also DENES a certificate of appealability. 15 IT IS SO ORDERED. 16 Dated: August 15, 2023 (2. □□ V7 Hon. aah Code 18 United States District Judge 19 20 21 22 23 24 25 26 27 28