United States District Court, N.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; AND DENYING CERTIFICATE OF APPEALABILITY
YVONNE GONZALEZ ROGERS, District Judge.
Petitioner Carlos Espinoza, a state prisoner, filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition on abstention grounds. Dkt. 5. Petitioner opposes the motion, and Respondent has filed a reply to the opposition. Dkts. 6, 7.
For the reasons discussed below, the motion to dismiss is GRANTED.
In 2012, a Monterey County jury convicted Petitioner of first degree murder, attempted premeditated and deliberate murder, and active participation in a criminal street gang. Dkt. 1-1 at 2. The jury also found that Petitioner committed the murder and attempted murder for the benefit of a criminal street gang, and that in committing the aforementioned crimes, he personally used and intentionally discharged a firearm and proximately caused great bodily injury or death. Id.
On June 21, 2012,  the trial court sentenced Petitioner, who was seventeen years old at the time he committed the offenses, to an aggregate prison term of eighty-five years to life. Id.
On direct appeal, Petitioner contended: (1) the gang crime and gang enhancements must be reversed because the opinion of the gang expert, Salinas Police Officer Robert Zuniga, was based in part on testimonial hearsay, in violation of Petitioner's Sixth Amendment right to confrontation; (2) the judgment must be reversed due to juror misconduct because one juror visited the scene and told the other jurors what he observed; and (3) remand for resentencing was required because the sentence of eighty-five years to life constitutes cruel and unusual punishment in light of the fact he was a juvenile at the time he committed the offense. Id. at 2-3.
On January 31, 2014, the state appellate court agreed with Petitioner's third claim, and reversed the judgment and remanded for resentencing in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), and People v. Caballero, 55 Cal.4th 262 (2012). Id. at 3, 32. In all other respects, the judgment was affirmed.
Both sides petitioned for review to the California Supreme Court. Dkt. 5 at 10. Petitioner challenged the state appellate court's reasoning and conclusions on his first two claims: (1) the violation of his Sixth Amendment right to confrontation; and (2) the alleged juror misconduct. Dkt. 1-2 at 2-33. Petitioner's petition for review was denied "without prejudice to any relief to which defendant might be entitled after [the state supreme] court decides People v. Sanchez, S216681." Dkt. 5 at 13. Meanwhile, the People of the State of California ("People") petitioned for review on the third claim, which had prompted the state appellate court to reverse and remand the case for resentencing. Id. at 23-32. The People's petition for review was granted and the matter has been "deferred pending consideration and disposition of a related issue in In re Alatriste, S214652 and In re Bonilla, S21490 ( see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court." Id. at 10. This Court has conducted an independent search of the records on the California Supreme Court's official website in an effort to check on the status of the People's petition for review and discovered that this matter remains pending. See People v. Espinoza, S216994.
Petitioner had also filed a state habeas petition, in which he argued that he was deprived of the effective assistance of trial counsel because his attorney failed to object to the gang expert's opinion testimony. Dkt. 1-1 at 3. On January 31, 2014, the state appellate court denied Petitioner's state habeas petition. Id.
On May 14, 2014, the California Supreme Court also denied Petitioner's state habeas petition, which raised the same ineffective assistance of counsel claim. Dkt. 1 at 4.
Petitioner then filed the present petition on December 8, 2014.
In the instant petition, Petitioner raises three claims for relief: (1) the violation of his Sixth Amendment right to confrontation stemming from the gang expert's opinion testimony; (2) the alleged juror misconduct; and (3) ineffective assistance of trial counsel for failing to object to the gang expert's ...