United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
J. GUILFORD UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed the Petition
(“Petition”) and all pleadings, motions, and
other documents filed in this action, the Report and
Recommendation of United States Magistrate Judge
(“Report”), and Petitioner's Objections to
the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and
Fed.R.Civ.P. 72(b), the Court has conducted a de novo review
of those portions of the Report to which objections have been
Objections, Petitioner raises two new claims and arguments
not previously presented in this action. A district court has
discretion, but is not required, to consider evidence or
arguments presented for the first time in objections to a
report and recommendation. See Brown v. Roe, 279
F.3d 742, 744-45 (9th Cir. 2002); United States v.
Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). The Court
has exercised its discretion with respect to these new
matters as follows.
connection with his discussion of Grounds One, Four, and Six
in the Objections, Petitioner argues that error was committed
within the meaning of the California Supreme Court's
decision in People v. Sanchez, 63 Cal.4th 665
(2016). These habeas claims stem from the admission of third
party testimony indicating that Petitioner's wife was
having an affair with a member of the rival gang, and the
gang expert's response to the prosecutor's
hypothetical question premised on such an event. Petitioner
asserts that, because the gang expert lacked personal
knowledge that the affair had occurred, then under
Sanchez, his testimony in response to a hypothetical
premised on such an affair, including regarding its likely
effect on gang members, was impermissible.
misapprehends the meaning of the Sanchez decision.
In Sanchez, the California Supreme Court considered
when gang experts may rely on matters based upon out-of-court
statements, i.e., hearsay, in forming expert
opinions for purposes of the Confrontation Clause. The state
high court concluded that a Confrontation Clause violation
may occur when an expert relies on testimonial hearsay and
treats it as true and accurate for purposes of formulating
his or her expert opinion, absent a showing of unavailability
and a prior opportunity for cross-examination. 63 Cal.4th at
686. The California Supreme Court, however, expressly, carved
out from its holding expert opinions in response to
hypothetical questions premised on case-specific facts that
were established at trial. Id. at 684-85. As
discussed in the Report, various witnesses testified to their
percipient knowledge of events indicating the affair. The
prosecutor based the hypothetical to the gang expert on such
witness testimony. Both the hypothetical and the expert's
response were permissible under Sanchez.
Accordingly, regardless of any retroactivity, exhaustion, and
AEDPA issues involved in Petitioner raising a claim based on
a state law decision that issued years after his conviction
was final, his Sanchez argument fails on its face.
also relies on another California Supreme Court decision that
issued after his conviction was final - People v.
Chiu, 59 Cal.4th 155 (2014). Under Chiu, a
defendant may not be convicted of first degree premeditated
murder under the theory that he aided and abetted a
non-murder target crime and the resulting first degree murder
was the natural and probable consequence of that target
crime. Instead, such aiding and abetting liability must be
based on direct aiding and abetting principles. Id.
at 158-59. In the Objections, Petitioner raises a new claim
that Chiu instructional error occurred at his trial.
new Chiu claim is unexhausted and not properly
raised for the first time in Objections. See Greenhow v.
Secretary of Health & Human Servs., 863 F.2d 633,
638-39 (9th Cir. 1988) (“allowing parties to litigate
fully their case before the magistrate and, if unsuccessful,
to change their strategy and present a different theory to
the district court would frustrate the purpose of the
Magistrate Act”), overruled on other grounds by
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.
1992) (en banc) (per curiam); see
also Rule 2(c)(1) of the Rules Governing Section 2254
Cases in the United States District Courts (the petition
“must” “specify all grounds for relief
available to the petitioner”);Greene v. Henry,
302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (declining to
consider three additional ineffective assistance of counsel
claims and noting, “since they were not made in the
federal petition, we need not consider them”).
Moreover, Petitioner was not convicted of first degree
premeditated murder; he was convicted of second degree
murder. Thus, even if his unexhausted and belatedly-raised
Chiu claim was properly before the Court, any
purported Chiu error necessarily was harmless.
See Brecht v. Abrahamson, 113 S.Ct. 1710, 1714
(1993) (an error is harmless if it did not have a
“substantial and injurious effect or influence in
determining the jury's verdict”).
Court has carefully considered Petitioner's Objections.
The Court concludes that nothing set forth therein affects or
alters, or calls into question, the analysis and conclusions
set forth in the Report.
completed its review, the Court accepts the findings and
recommendations set forth in the Report. Accordingly, IT IS
ORDERED that: (1) the Petition is DENIED; and (2) ...