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Mundell v. Dean

United States District Court, C.D. California

November 21, 2014

BRANDON MUNDELL, Petitioner,
v.
GEOFF DEAN, Sheriff for Ventura County, Respondent

For Brandon Mundell, Petitioner: Anthony D Zinnanti, Anthony D Zinnanti Law Offices, Valencia, CA.

For Geoff Dean, Sheriff for Ventura County, Respondent: Michelle J Contois, LEAD ATTORNEY, Ventura County District Attorney, Ventura, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Honorable Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I. SUMMARY

On September 7, 2011, Brandon Mundell (" petitioner"), a state probationer proceeding with the assistance of counsel, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (" Petition") pursuant to 28 U.S.C. § 2254, with a supporting memorandum (" Petition Memo"). Petitioner challenges a conviction in Ventura County Superior Court, essentially claiming that the trial court's admission of gang enhancement predicate offense evidence through a gang expert who lacked personal knowledge of the predicate offenses deprived petitioner of meaningful cross-examination and violated his rights to confrontation and due process. (Petition at 5; Petition Memo at 1, 13-21).

On January 9, 2012, respondent filed an Answer and a supporting memorandum (" Answer").[1] On February 7, 2012, petitioner filed a Reply.

For the reasons stated below, the Petition should be denied, and this action should be dismissed with prejudice.

II. PROCEDURAL HISTORY

On December 16, 2008, a Ventura County Superior Court jury found petitioner guilty of assault with a deadly weapon by means likely to produce great bodily injury (count 1), driving under the influence causing injury (count 5), and driving with a .08% blood alcohol content causing injury (count 6). (CT 327, 335, 337).[2] The jury also found true an allegation that petitioner committed the assault charged in count 1 for the benefit of, at the direction of, or in association with a " criminal street gang, " the Hells Angels (" Gang Enhancement").[3] (CT 327).

On February 25, 2009, the trial court denied petitioner's motion for a new trial and sentenced him to 365 days of county jail and formal probation for 36 months. (CT 442-47).

On March 24, 2010, the California Court of Appeal affirmed the judgment. (Lodged Doc. 9). On June 9, 2010, the California Supreme Court denied review without prejudice to any relief to which petitioner might be entitled after such court decided four then-pending cases. (Lodged Doc. 11).

III. FACTS[4]

A. The Charged Crimes

On January 19, 2006, petitioner and two other men were playing darts at the Take Five Bar in Newbury Park. A regular patron, Christopher Drury, walked inside and sat down at the bar. He saw a Hell's Angels jacket draped over a chair. Sometime later, he heard an altercation several feet away. Drury helped break up the fight and the three men moved outside. They re-entered the bar and two grabbed pool cues. Petitioner, who was wearing a Hell's Angels jacket, said, " We're taking over this bar." The bartender yelled at the patrons to get the men outside and lock the door.

Petitioner swung the pool cue like a bat, hitting Drury's lower back and breaking the cue. One of the other men threw petitioner another cue, and petitioner struck Drury on the shoulder blade, breaking the second cue. Petitioner's companions fled on their motorcycles, and the bartender called the police.

Another bar patron, John Dotson, testified that he was sitting next to Drury at the Take Five Bar on the night of the offense. He saw petitioner and two other men enter the bar. All three wore Hell's Angels jackets. They started a fight, then began walking outside, chanting, " Hell's Angels. Don't mess with us." They turned back towards the door and began swinging pool cues and Dotson either saw petitioner pull out a pocket knife or heard someone say petitioner had a knife. Drury was hit on the shoulder with a pool cue, and it shattered. Two of the men got on their bikes and drove away. Petitioner drove towards a police officer and struck his legs with the bike.

Jeff Wessles lived in an apartment across the street from the Take Five Bar. On the night of the offense, he heard a commotion at the bar and looked out the window to see three people in motorcycle jackets in a fight. He knew a friend was at the Take Five, so he crossed the street and approached the bar. A man in a Hell's Angels motorcycle jacket was holding a knife in his hand. He ran toward Wessles, saying he was a Hell's Angel and was going to stab him. Wessles testified at trial that he did not remember the incident. He did not recall telling law enforcement that he had observed a fight or that someone had brandished a knife at him.

Deputy Sheriff Mark Grambling responded to the scene. He stepped out of his patrol car and petitioner got on his motorcycle. Grambling yelled at petitioner not to go anywhere, but petitioner drove in Grambling's direction and hit his legs. The motorcycle spun around and fell on its side. Grambling drew his handgun, pointed at petitioner, and ordered him to remain on the ground. A search revealed a folding pocket knife in petitioner's pants pocket. His blood alcohol content was between .14 and .15 percent.

B. Gang Expert Testimony, Pertinent Jury Instructions, and Gang Stipulation

Deputy Jeremy Paris, with the Ventura County Sheriff's Narcotics Unit, testified as a gang expert. He had been a peace officer with the Ventura County Sheriff's Department for almost ten years, with various assignments including approximately a year and two months as a Senior Deputy in the gang unit, three and a half years in a Special Enforcement Detail which was also a gang unit, and a year and a half in a jail classification unit which handled the tracking of gang members and the interviewing and monitoring of gang members. (RT 407-08). He had attended over 100 hours of formalized training, including training offered by the California's Gang Investigator's Association. (RT 408). He had also attended multiple conferences providing training regarding gangs, including outlaw motorcycle gangs, such as the Hell's Angels and the Mongols. (RT 408-10). He was a member of the California Gang Task Force. (RT 410). He had conducted investigations involving the Hell's Angels and the Mongols, had interviewed members and associates of both groups (including probably 30 Hell's Angels members or associates), and had participated in searches of approximately ten locations related to the Hell's Angels. (RT 410-13, 417-19). He had also shared and obtained information about the Hell's Angels from other law enforcement agencies. (RT 419).

When Paris began testifying, the court instructed the jury that the things Paris was relying upon in the case to form his opinions were not admitted for the truth but as the basis of his opinions, that experts may rely in part on hearsay statements that are not otherwise admissible, and that the jury could consider those hearsay statements to assess the opinions of expert witnesses but not for the truth. (RT 415). The court also expressly instructed the jury at that juncture that it could not conclude from such evidence that petitioner was a person of bad character or that he had a disposition to commit a crime. (RT 415). At multiple other points during Paris's testimony, the court similarly instructed the jury, emphasizing that the statements coming in through the expert were hearsay and not be to considered for the truth of the matter asserted and were merely the alleged basis of the officer's opinions. (RT 432, 459, 465-66). At the end of the case, the court's final instructions again reminded the jury that evidence admitted for a limited purpose could only be considered for such purpose and no other, and that the jury could not conclude from the gang evidence that petitioner was a person of bad character or that he had a disposition to commit a crime. (RT 608, 618; CT 199, 218).

Paris testified that the Hell's Angels have about 3, 000 members and over 200 chapters worldwide. They identify themselves by a jacket that has a death head on the back. " Hells Angels" is on a separate patch above it, and a patch below it says, " California, " or the member's state or country of origin. The Western United States has approximately 30 chapters. They hold monthly meetings and members vote on whether to allow an individual to join the club. A member begins as a " hang-around, " meaning that person is allowed to attend parties. The next level is a " prospect, " who serves as a guard outside the weekly chapter meetings, called " church." The Hell's Angels' rival is a motorcycle gang known as the Mongols.

The primary activities of the Hell's Angels are assaults with deadly weapons, drug dealing, and stealing motorcycles. They use weapons to commit crimes and for protection. Possessing weapons promotes their image of being dangerous and sends the message that anyone interfering with them will be hurt. This benefits the gang by preventing people from reporting them to the police or being witnesses. Community members are generally unwilling to testify against them for fear of retaliation.

The parties entered into a stipulation (" Gang Stipulation") which was read to the jury regarding a gang enhancement predicate offense during which two Hell's Angels committed assaults on a member of the Mongols gang in Laughlin, Nevada (" Laughlin Incident"). (RT 457-58). The Gang Stipulation reflected that on April 27, 2002, Calvin Schaeffer and Dale Leedom committed an offense that met the elements of California's assault with a deadly weapon statute. (RT 457). The Gang Stipulation did not specify that Schaeffer and Leedom were members of the Hell's Angels. (RT 457). Paris, relying upon his conversations with investigators and his review of a videotape of the Laughlin Incident, testified regarding the incident, noting that the victim, whom he had known since 1999, was a member of the Mongols gang -- a rival gang of the Hell's Angels -- and that the two named assailants were both wearing Hell's Angels vests or jackets during the assault. (RT 455-58). Paris opined that the assailants were members of the Hell's Angels. (RT 456).

Paris relied on, among other things, trial court records, abstracts of judgments, police reports, his conversations with other officers and with Hell's Angels members/associates, and his own observations and experience to testify regarding ten other gang enhancement predicate offenses committed between 2000 and 2005 by individuals whom Paris opined were members of the Hell's Angels at the time in issue. (RT 435-41, 455-57).

More specifically, Paris testified regarding: (1) an April 2000 incident involving Sabian Reynoso -- whom Paris had met in 1999 and was the current president of the Ventura Chapter of the Hell's Angels -- during which Reynoso and other Hell's Angels assaulted a third party and which resulted in Reynoso's conviction on an assault with a deadly weapon charge (RT 435-36 [referencing People's Exhibit 12]); (2) a September 2000 incident involving William Edward Gaddie -- with whom Paris was familiar through prior investigations, conversations with other officers and police reports -- during which Gaddie, who was wearing Hell's Angels colors, and other Hell's Angels assaulted a third party and which resulted in Gaddie's conviction on an assault by means likely to produce great bodily injury charge (RT 436-38 [referencing People's Exhibit 13]); (3) a January 2001 incident involving Christopher Scott Yvon -- with whom Paris was familiar through reviewing police reports, including photographs of Yvon and his tattoos -- during which Yvon and other Hell's Angels assaulted a third party and which resulted in Yvon's conviction on assault with a deadly weapon and possession of a controlled substance for sale charges (RT 438-40 [referencing People's Exhibit 14]); (4) a March 2001 incident involving Brian Wendt -- with whom Paris was familiar through reviewing police reports -- during which Wendt committed an assault in the process of taking Hell's Angels related items, and which resulted in Wendt's conviction on an assault with a deadly weapon charge (RT 440-41 [referencing People's Exhibit 15]); (5) a series of incidents in August 2002 and June 2003 involving Rodney Verna -- with whom Paris was familiar through reviewing police reports which reflected that Verna was wearing a Hell's Angels tank top -- which resulted in Verna's conviction on unlawful possession of firearms, possession for sale of a controlled substance and making criminal threats charges (RT 458-60 [referencing People's Exhibit 18]); (6) a December 2002 incident resulting in a possession of a firearm by a felon conviction for Jimmy Shankels -- an individual with whom Paris had had significant prior contacts[5] (RT 460-62 [referencing People's Exhibit 19]); (7) a July 2004 incident involving Rocco Gullatta -- with whom Paris was familiar through reviewing police reports -- during which Gullatta committed an assault while wearing a Hell's Angels T-shirt, resulting in Gullatta's conviction on an assault by means likely to produce great bodily injury charge (RT 462-63 [referencing People's Exhibit 20]); (8) a March 2005 incident as to which Paris was a percipient witness, [6] involving Stewart Sandrock -- whom Paris had personally met and arrested -- during which Sandrock, wearing a Hell's Angels " prospect" vest, was found to have a controlled substance on his person, resulting in Sandrock's conviction on a transportation of a controlled substance charge (RT 463-65 [referencing People's Exhibit 21]); (9) a September 2005 incident involving Brian Applegate -- whom Paris had personally met and arrested -- which resulted in Applegate's conviction on a grand theft charge (RT 465-67 [referencing People's Exhibit 22]); and (10) a November 2005 incident involving Nathan Varela -- whom Paris had met and was familiar with through conversations with other officers and Paris's review of police reports -- during which Varela was found to have a controlled substance on his person, resulting in Varela's conviction on a transportation of a controlled substance charge (RT 467-68 [referencing People's Exhibit 23]).[7]

Based upon his review of the evidence, it was Paris's opinion that petitioner was a member of the Hell's Angels. A member might go to a bar wearing a Hell's Angels jacket and assault bar patrons to enhance his reputation within the gang. This would benefit the gang by demonstrating its dangerousness and that its members will commit violent acts to maintain the gang's reputation.

C. Prior Uncharged Act Evidence

On May 13, 2005, petitioner visited a strip club, wearing a Hell's Angels jacket that said " prospect" on the patch. He began smashing coffee cups that had been stacked on the bar. He grabbed money from a dancer's purse and crumpled the bills and threw them at her. Petitioner hit a patron over the head with a beer bottle, and cut him above his eye with the broken glass.

IV. STANDARD OF REVIEW

This Court may entertain a petition for writ of habeas corpus on " behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) " 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 (2) " 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." 28 U.S.C. § 2254(d).

In applying the foregoing standards, federal courts look to the last reasoned state court decision. See Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert. denied, 133 S.Ct. 1831, 185 L.Ed.2d 841 (2013). " Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (cited with approval in Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1, 185 L.Ed.2d 105 (2013)); Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to " look through" summary denials of discretionary review to the last reasoned state-court decision -- whether those denials are on the merits or denials of discretionary review), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014).

V. DISCUSSION[8]

Petitioner claims that the trial court's admission of Deputy Paris's testimony regarding the underlying facts of the predicate offenses deprived petitioner of meaningful cross-examination and violated his rights to confrontation and due process because Deputy Paris had no personal knowledge regarding the predicate offenses and instead merely relied on police reports. (Petition at 5; Petition Memo at 1, 13-21). The California Court of Appeal -- the last state court to issue a reasoned decision on this claim -- rejected it on the merits on direct review, finding that the testimony in issue did not constitute " testimonial statements" within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), that it instead properly constituted the basis for Deputy Paris's opinions, and that it was properly admitted for that purpose. (Lodged Doc. 9 at 5-7). Petitioner is not entitled to habeas relief on this claim.

A. Petitioner's Confrontation Clause Claim Was Reasonably Rejected by the California Court of Appeal

The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Williams v. Illinois, 132 S.Ct. 2221, 2228, 183 L.Ed.2d 89 (2012) (plurality opinion); [9] Crawford, 541 U.S. at 50 n.9. The Supreme Court has explained:

When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.

Williams, 132 S.Ct. at 2228, 2239-40 (finding no Confrontation Clause violation under Federal Rule of Evidence allowing for the disclosure of " basis evidence" of an expert opinion to determine what weight to give the expert's opinion where expert referred to DNA profile matched to petitioner's as having been produced from victim's vaginal swab). Melendez-Diaz, which predated Williams and held that the admission of certificates of analysis offered to prove the truth of the matter asserted therein -- that a seized substance was found to contain cocaine -- violated the Confrontation Clause, does not suggest otherwise. Melendez-Diaz, 557 U.S. at 312; see Williams, 132 S.Ct. at 2240 (noting that its holding that the admission of " basis evidence" does not violate the Confrontation Clause is entirely consistent with Melendez-Diaz as the forensic report in the latter case was admitted to prove the truth of the matter asserted therein).

Indeed, numerous federal courts since Crawford and Melendez-Diaz have found, based on Crawford and Williams, that a gang expert's reliance on hearsay evidence does not violate the Confrontation Clause where the underlying hearsay is not admitted for the truth of the matter asserted, but rather to explain the basis of the gang expert's opinion. See, e.g., Valdez v. Virga, 2014 WL 3709634, *16-*18 (C.D. Cal. July 28, 2014) (gang expert's reliance on hearsay statements in police reports as a basis for opinions did not violate the Confrontation or Due Process Clauses); Martin v. Lewis, 2013 WL 3786863, at *11-*13 (E.D. Cal. July 18, 2013) (gang expert's testimony regarding substance of police reports and reliance thereon as basis for opinion regarding primary activity of gang did not violate Confrontation Clause; collecting post-Crawford cases holding that introduction of otherwise inadmissible evidence in support of gang expert witness's testimony does not violate Confrontation Clause); see also Ortiz v. Tilton, 2008 WL 2543440, at *3 n.5, *16 (S.D. Cal. May 5, 2008) (no Confrontation Clause violation when the trial court permitted gang expert to rely on hearsay matters, including police reports, as bases for his opinions because such matters were not admitted for the truth of the matter asserted and the jury was so instructed), report and recommendation adopted, 2008 WL 1796537 (S.D. Cal. June 23, 2008).

In this case, the Court of Appeal reasonably determined under then-existing clearly established Supreme Court authority that no Confrontation Clause violation occurred. First, such court reasonably determined that Deputy Paris's testimony regarding the underlying facts of the predicate offenses did not constitute " testimonial statements" and did not violate the Confrontation Clause because such testimony was not offered for the truth but to explain the basis of Paris's opinions -- a limited use which was permissible under Crawford (and, though not available to the Court of Appeal for consideration, Williams). Paris applied his training and experience to the sources of information before him, including the substance of police reports, in reaching an independent judgment that the individuals who committed the predicate offenses were members of the Hell's Angels and that a primary activity of the Hell's Angels included the commission of assaults with deadly weapons. See United States v. Vera, 770 F.3d 1232, 2014 WL 5352727, at *5 (9th Cir. 2014) (where gang expert testifying in federal case applied his training and experience to the sources before him and reached an independent judgment, his testimony complied with Crawford and the Confrontation Clause) (citation and internal quotations omitted). Morever, the trial court repeatedly instructed the jury that it was not to consider the underlying facts of the predicate offenses for the truth, and instead that they were only a basis for Paris's opinions. (RT 432, 459, 465-66). The jury is presumed to have followed such instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (jury presumed to follow judge's instructions).[10]

Second, this Court rejects petitioner's contention that Deputy Paris's lack of personal knowledge regarding most of the predicate offenses effectively deprived petitioner of a meaningful opportunity to conduct cross-examination. A review of the cross-examination reflects the contrary -- that petitioner's counsel capitalized on Paris's lack of personal knowledge regarding the underlying facts of the predicate offenses to cast doubt on Paris's opinions. (RT 479-95). For example, counsel elicited that Paris had no information that petitioner had ever met multiple individuals who had committed the predicate offenses (RT 481, 483), that Paris hadn't actually interviewed any of the witnesses to the predicate offenses (RT 484), that he had not spoken to each and every officer who had authored the police reports in issue (RT 484), and that he had not done an independent investigation on the witnesses thereto (RT 484). In closing argument, petitioner's counsel emphasized Deputy Paris's admission that some Hell's Angels members did not even know one another and suggested that the jury should disregard his opinions about the predicate offenses because they were based only on Paris's assumptions that the charges were true, without any independent investigation. (RT 690, 696-97).

In light of the foregoing, Paris's reliance on police reports and lack of personal knowledge regarding the predicate offenses did not deprive petitioner of a meaningful opportunity to cross-examine Paris and did not violate the Confrontation Clause. The California Court of Appeal's rejection of petitioner's Confrontation Clause claim was not contrary to, and did not involve an unreasonable application of then existing clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this claim.

B. Petitioner's Due Process Claim Was Reasonably Rejected by the California Court of Appeal

Petitioner also claims that the admission of Paris's testimony regarding the predicate offenses deprived of him of his federal constitutional right to due process. (Petition Memo at 20-21). He is not entitled to federal habeas relief on this claim.

A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision. Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005). " The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.), cert denied, 516 U.S. 1017, 116 S.Ct. 582, 133 L.Ed.2d 504 (1995) (citation omitted); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (discussing standard; noting that the Supreme Court has not made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of a writ of habeas corpus). The " [a]dmission of evidence violates due process only if there are no permissible inferences the jury may draw from it." Boyde, 404 F.3d at 1172 (quoting Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (internal quotation marks omitted; emphasis in original); see also Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (admission of " other acts" evidence will violate due process only where there are no permissible inferences the jury may draw from it). Here, petitioner makes no such showing.

As indicated in note 3, supra, in order the prove the Gang Enhancement, the prosecution was required to establish that the Hell's Angels was a criminal street gang -- something which in turn, required proof that, among other things, a primary activity of the Hell's Angels was the commission of one or more enumerated criminal acts, [11] and that its members individually or collectively had engaged in a pattern of criminal gang activity, i.e., that its members had committed or had been convicted of any combination of two or more specified offenses, provided at least one of those crimes had occurred after September 26, 1988, and the last of those offenses had occurred within three years after a prior offense, and that the offenses had been committed on separate occasions or by two or more persons. Cal.Penal Code § § 186.22(e), 186.22(f); CT 216-17 (jury instruction). It is well-settled that the prosecution may introduce gang expert testimony to establish the elements of a gang enhancement. People v. Hernandez, 33 Cal.4th 1040, 1047-48, 16 Cal.Rptr.3d 880, 94 P.3d 1080 (2004); People v. Gardeley, 14 Cal.4th 605, 617-20, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1996), cert. denied, 522 U.S. 854, 118 S.Ct. 148, 139 L.Ed.2d 94 (1997). Here, the disputed testimony of Deputy Paris regarding the predicate acts was relevant to prove up the Gang Enhancement. The trial court, on at least three occasions, expressly instructed the jury that it was to consider such evidence only in connection with the Gang Enhancement and that it could not conclude therefrom that petitioner -- who was not himself involved in any of the predicate offenses -- was a person of bad character or that he had a disposition to commit a crime. (RT 415, 465-66, 618). Again, the jury is presumed to have followed its instructions. See Weeks, 528 U.S. at 226.

Since Deputy Paris's testimony regarding the predicate offenses was relevant and admitted for the limited purpose of proving the Gang Enhancement, and since the trial court expressly so instructed the jury, petitioner fails to demonstrate that the admission of such testimony deprived him of due process. The California Court of Appeal's rejection of petitioner's due process claim was not contrary to, and did not involve an unreasonable application of then existing clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this claim.

VI. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.


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