United States District Court, C.D. California
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
JOHN F. WALTER, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge. However, the Court will address below certain arguments raised in Petitioner's Objections.
Petitioner argues that the Magistrate Judge erroneously concluded that Petitioner's trial counsel made a strategic decision not to call a gang expert because there is no factual support in the record regarding counsel's decision-making process. (Obj. at 3-10). This argument is misplaced. First, and most importantly, Petitioner's ineffective assistance claim was denied because Petitioner could not show prejudice, not because counsel's performance was deficient. See Smith v. Robbins , 528 U.S. 259, 286 n.14 (2000) (court may dispose of ineffective assistance of counsel claim on the ground of lack of prejudice without addressing deficiency prong of Strickland analysis). Second, Strickland's deficiency analysis even on direct review is an objective, not subjective, test. However, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, ___ U.S. ___ , 131 S.Ct. 770, 788 (2011). This argument fails.
Petitioner also contends that the Magistrate Judge erroneously found that the gang enhancement may apply even if the crime is not "gang-related" so long as the defendant acted with the specific intent to assist in criminal conduct by known gang members. (Obj. at 11-12). According to Petitioner, "without the People having to prove that a crime is gang-related, ' any crime committed by gang members, or individuals in association with gang members, comes within the purview of section 186.22." (Id. at 11). Petitioner ignores that section 186.22(b)(1)'s elements are set forth in the disjunctive. As one California decision, cited in the Report and Recommendation, explained, "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." People v. Villalobos , 145 Cal.App.4th 310, 322 (2006). This argument fails.
Accordingly, IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on counsel for Petitioner and ...