United States District Court, C.D. California
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.
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"). 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). 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"). (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).
A. The Charged Crimes