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McIntosh v. Katavich

United States District Court, C.D. California

November 12, 2014

JOHN N. KATAVICH, Warden, Respondent

For Aaron Robert McIntosh, Petitioner: Anthony D Zinnanti, LEAD ATTORNEY, Law Offices of Anthony D Zinnanti, Valencia, CA.

For John N. Katavich, in his capacity as Warden of Wasco State Prison, Respondent: Scott A Taryle, CAAG - Office of Attorney General, Supervising Deputy Attorney General, Los Angeles, CA.


FREDERICK F. MUMM, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the petition be denied and the action be dismissed with prejudice.


Petitioner, Aaron Robert McIntosh (" Petitioner"), a state prisoner in the custody of the California Department of Corrections who is represented by counsel, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (" Petition") on June 20, 2014. Thereafter, on August 14, 2014, respondent filed an answer to the Petition. On September 22, 2014, Petitioner filed a reply. The matter, thus, stands submitted and ready for decision.


Petitioner was convicted by a Ventura Country Superior Court jury of street terrorism and unlawful driving or taking of a vehicle. (Cal. Penal Code § 186.22(a); Cal. Veh. Code § 10851(a)). (Lodged Doc. No 7.) The jury also found true the allegation that Petitioner committed the crime to benefit a criminal street gang. In a bifurcated trial, the trial court found that Petitioner committed the crime while on bail in another case and that he had served three prior prison terms (Cal. Penal Code § § 186.22(b), 12022.1, 667.5). (Id.) He was, thereafter, sentenced to twelve years in state prison. (Id.)

Petitioner then appealed his conviction. On June 6, 2013, the California Court of Appeal filed an unpublished opinion in which it affirmed Petitioner's conviction. Petitioner subsequently filed a petition for review in the California Supreme Court, which summarily denied the petition.

Petitioner then initiated this action.


The following facts were taken verbatim from the California Court of Appeal's opinion affirming Petitioner's conviction:

James David Ivans, Jr. became a " full-patch" member of the Ventura chapter of the Hells Angels motorcycle gang in 2006, after having served as a " hang around" and " prospect" for several years. [Petitioner] was also a " full-patch" and " filthy few" member of the Ventura chapter, i.e., he committed violent crimes on behalf of the gang.
Ivans rode a Harley-Davidson motorcycle that had belonged to his father. Ivans's father, a member of a motorcycle club associated with the Hells Angels, died in a motorcycle accident. Tron Elliott, a motorcycle repair shop owner, rebuilt the motorcycle for Ivans. Ivans described his relationship with Elliott as " best friends." Based upon an understanding with Elliott, Ivans transferred title to the motorcycle to him by a vehicle title document (" pink slip"). Ivans did this because he could not afford to pay Elliott for the repairs. He also intended to protect the motorcycle from seizure by law enforcement or the Hells Angels. Ivans described the title transfer as a common practice among the gang members.
Ivans retained sole possession of the motorcycle and was its only rider with the exception of another motorcycle mechanic who repaired it. Elliott did not drive or possess the motorcycle after he rebuilt it, and Ivans never lent the motorcycle to [Petitioner].
In 2010, Ivans pleaded guilty to attempted extortion and received a grant of probation with terms and conditions that included not associating with the Hells Angels. Former Hells Angel President George Christie gave Ivans the ultimatum " to either quit or get kicked out." Ivans had witnessed beatings inflicted by Hells Angels members upon resigning members and was fearful of physical retaliation.
In October 2010, Ivans moved to the home of Vincente Felix, a friend who was not associated with the Hells Angels. Ivans brought his motorcycle and Hells Angels clothing with him. He informed Felix that he was leaving the Hells Angels and that the clothing would be returned to them.
At Ivans's request, Felix removed the motorcycle's gasoline tank bearing the Hells Angels insignia and gave the tank to another gang member. Ivans requested that Felix " hold" the now-inoperable motorcycle for him.
Ivans, who was in protective law enforcement custody, then left Ventura. Felix delivered the Hells Angels clothing to Christie because " normal people aren't supposed to own that stuff."
On October 8, 2010, [Petitioner] arrived at Felix's home, asked about Ivans's whereabouts, and stated that he was going " to take the bike." Felix did not question [Petitioner] where he was taking the motorcycle. [Petitioner] and his girlfriend took the motorcycle. Shortly thereafter, an undercover sheriff's deputy followed both a pickup truck that contained Ivans's motorcycle in the bed of the truck and an automobile driven by [Petitioner's] girlfriend to the Oak View home of Hells Angels member Joe Cerezo. The deputy saw [Petitioner] and his girlfriend enter the residence, but he lost sight of the pickup truck and motorcycle. Later that afternoon, [Petitioner] and his girlfriend took the motorcycle to Wayne Ortman, a motorcycle repairman in Ojai, for repair and replacement parts.
That same day, Ivans spoke with Felix and learned that [Petitioner] had taken his motorcycle. Ivans then contacted Ventura County Sheriff's Deputy Brian Whittaker to report the theft. Whittaker informed Ivans that he could not report the theft because he was not the motorcycle's legal owner. In a recorded conversation, Ivans telephoned Elliott and asked that he report the theft. Elliott refused, stating that he would not put his " name out there like a fucking rat." He agreed to transfer title to Ivans, however, to allow him to report the motorcycle theft. Elliott testified that he executed the pink slip to " [g]et [Ivans] and his problem out of my hair." Elliott also executed a " bill of sale" at the police station, prepared by a police officer in part to assuage Elliott's concerns of involvement in the investigation.
In another recorded conversation, Ivans spoke with Felix who stated that [Petitioner] took the motorcycle and ordered him to " stay clear." Felix was anxious because he resided near the Hells Angels clubhouse and feared retaliation from the gang members.
On October 9, 2010, sheriff's deputies recovered Ivans's motorcycle in Ortman's garage. Ortman later admitted that [Petitioner] requested that he repair the motorcycle.

(Lodged Doc. No. 7 at 1-4.)


The trial court violated Petitioner's right to confront the witnesses against him by allowing the State's expert to testify regarding predicate offenses of the gang to which Petitioner belonged because the expert had no personal knowledge of the predicate offenses, but instead based his testimony on records chronicling those offenses and on non-testifying witnesses' accounts of those offenses.


The standard of review applicable to Petitioner's claims herein is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") (Pub. L. No. 104-132, 110 Stat. 1214 (1996)). See 28 U.S.C. § 2254(d); see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless that adjudication " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or " resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." [1] 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The phrase " clearly established Federal law" means " the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." [2] Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). However, a state court need not cite the controlling Supreme Court cases in its own decision, " so long as neither the reasoning nor the result of the state-court decision contradicts" relevant Supreme Court precedent which may pertain to a particular claim for relief. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) ( per curiam ).

A state court decision is " contrary to" clearly established federal law if the decision applies a rule that contradicts the governing Supreme Court law or reaches a result that differs from a result the Supreme Court reached on " materially indistinguishable" facts. Williams, 529 U.S. at 405-06. A decision involves an " unreasonable application" of federal law if " the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal habeas court may not overrule a state court decision based on the federal court's independent determination that the state court's application of governing law was incorrect, erroneous, or even " clear error." Lockyer, 538 U.S. at 75. Rather, a decision may be rejected only if the state court's application of Supreme Court law was " objectively unreasonable." Id.

The standard of unreasonableness that applies in determining the " unreasonable application" of federal law under Section 2254(d)(1) also applies in determining the " unreasonable determination of facts in light of the evidence" under Section 2254(d)(2). Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). Accordingly, " a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Id.

Where more than one state court has adjudicated the petitioner's claims, the federal habeas court analyzes the last reasoned decision. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) for presumption that later unexplained orders, upholding judgment or rejecting same claim, rest upon same ground as the prior order). Thus, a federal habeas court looks through ambiguous or unexplained state court decisions to the last reasoned decision in order to determine whether that decision was contrary to or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003).


In his sole claim for relief, Petitioner contends that the trial court violated his Sixth Amendment right to confrontation by allowing the State's gang expert to testify regarding the predicate crimes committed by the Hells Angels as an element of the crime of street terrorism and the gang enhancement. According to Petitioner, the expert's testimony was impermissible because it stemmed from records and accounts of incidents of which the testifying expert had no personal knowledge.

The California Court of Appeal rejected this claim. In doing so, the court of appeal held that Petitioner had forfeited the claim by failing to object to the expert's testimony at trial. Alternatively, the court of appeal held that the claim failed on its merits because no Confrontation Clause violation occurs when an expert bases his or her opinion upon otherwise inadmissible hearsay. According to respondent, the court of appeal's invocation of the " contemporaneous objection rule" as a basis for denying Petitioner's claim resulted in procedural default of that claim here. Furthermore, respondent contends that the claim fails on its merits. As explained below, respondent is correct on both counts.

1. Waiver

For a state court denial based on a procedural rule to bar federal review, the state rule must constitute an " adequate and independent state ground" for denying Petitioner's claims. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). " For a state procedural rule to be 'independent, ' the state law basis for the decision must not be interwoven with federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). For a state rule to be " adequate, " it must have been " well-established and consistently applied" at the time it was applied by the state court in Petitioner's case. Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, petitioner has the burden to show that the state procedural ground is inadequate. Bennett, 322 F.3d at 586.

The Ninth Circuit has repeatedly held that California's contemporaneous objection rule constitutes an independent and adequate ground precluding federal habeas review. See, e.g., Bennett, 322 F.3d at 581 (holding that California's contemporaneous-objection rule is " independent" of federal law); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (affirming denial of federal habeas petition on procedural default grounds based on California's contemporaneous objection rules). Accordingly, Petitioner's claim is procedurally barred.

Moreover, that the court of appeal alternatively rejected Petitioner's claim on its merits does not alter the Court's procedural bar analysis. The Supreme Court has made clear that an alternative ruling on the merits does not affect a state court's reliance on a procedural rule: " [A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

Although Petitioner suggests that the court of appeal's invocation of the contemporaneous objection rule was ambiguous, this suggestion has no basis in fact. In truth, the court of appeal unequivocally stated that Petitioner's failure to object resulted in the forfeiture of his claim. (Lodged Doc. No. 7 at 9.) And, in doing so, the court of appeal cited not one, but two California Supreme Court cases discussing and applying California's contemporaneous objection rule. Put simply, there is no question that the court of appeal invoked the contemporaneous objection rule as a basis to deny Petitioner's claim.

Accordingly, Petitioner's claim is procedurally barred and there is no cause to excuse the procedural bar. The Court, therefore, must disregard the claim.

2. Merits

The Confrontation Clause prohibits the introduction at trial of testimonial hearsay against the accused unless the witness is unavailable and the accused had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, " [t]he [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59 n.9.

The Supreme Court had not yet addressed the constitutionality of allowing an expert witness to discuss other persons' testimonial statements if those testimonial statements are not themselves admitted as evidence. See Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 2722, 180 L.Ed.2d 610 (2011) (Sotomayor, J., concurring ) (" We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence."). Citing this fact, the Ninth Circuit has concluded that state courts do not commit constitutional error in allowing a prosecutor to introduce expert testimony by lab employees where the employees base their opinions on tests and reports conducted by other, non-testifying lab employees. Flournoy v. Small, 681 F.3d 1000, 1005 (9th Cir. 2012) (citing Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring )). The same is true in this case.

Furthermore, nothing in the Supreme Court's jurisprudence since the state courts rejected Petitioner's claim suggests that the state courts' holding in Petitioner's case was unreasonable or contrary to clearly established Supreme Court law. On the contrary, in its most recent case regarding the intersection of expert testimony and the Confrontation Clause, the Supreme Court, in a plurality opinion joined by four justices, held that out-of-court statements related by an expert solely for the purpose of explaining the assumptions on which the expert's opinion rests are not offered for their truth and thus fall outside the Confrontation Clause's scope. Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221, 2233-41, 183 L.Ed.2d 89 (2012). Justice Thomas, the fifth vote supporting the holding in the case, concurred on different grounds.

Here, Petitioner cannot show that the state court violated his right to confront the witnesses against him. As the court of appeal observed, the gang expert did not relay any hearsay statement for the truth of the matter asserted. Rather, he relied on information derived from non-testifying declarants to form the opinions about which he was called to testify. Nothing in Williams, or in any Supreme Court precedent, constitutes clearly established law prohibiting such testimony.

Moreover, Petitioner's right to confrontation was not violated by the expert's testimony relaying information contained in public records chronicling the criminal convictions of various Hells Angels members. As the Ninth Circuit has recognized, such records are created not to be introduced at trial and or to serve a prosecutorial function, but rather to document routine court activity, such as the disposition of the criminal cases before the given court. See Zuniga v. Felker, 458 Fed.Appx. 693, 2011 WL 5833292, *1 (9th Cir. 2011). As such, they are not testimonial and, therefore, do not implicate the protections of the Confrontation Clause. Id.

In sum, Petitioner's challenge to the expert's testimony is procedurally barred and, alternatively, fails on its merits. Accordingly, Petitioner is not entitled to habeas relief.


The Magistrate Judge therefore recommends that the Court issue an order: (1) approving and adopting this Report and Recommendation; and (2) directing that judgment be entered denying the Petition on the merits with prejudice.

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