Alejandro Salas v. Foulk

Filing 33

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Andrew J. Guilford for Report and Recommendation (Issued) 26 . IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALEJANDRO SALAS,

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Petitioner
v.
FOULK, Warden,
Respondent.

Case No. CV 14-8152-AG (GJS)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (“Petition”) and

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all pleadings, motions, and other documents filed in this action, the Report and

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Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s

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Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.

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72(b), the Court has conducted a de novo review of those portions of the Report to

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which objections have been stated.

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In his Objections, Petitioner raises two new claims and arguments not previously

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presented in this action. A district court has discretion, but is not required, to

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consider evidence or arguments presented for the first time in objections to a report

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and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002);

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United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). The Court has

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exercised its discretion with respect to these new matters as follows.

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In connection with his discussion of Grounds One, Four, and Six in the

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Objections, Petitioner argues that error was committed within the meaning of the

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California Supreme Court’s decision in People v. Sanchez, 63 Cal 4th 665 (2016).

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These habeas claims stem from the admission of third party testimony indicating

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that Petitioner’s wife was having an affair with a member of the rival gang, and the

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gang expert’s response to the prosecutor’s hypothetical question premised on such

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an event. Petitioner asserts that, because the gang expert lacked personal knowledge

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that the affair had occurred, then under Sanchez, his testimony in response to a

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hypothetical premised on such an affair, including regarding its likely effect on gang

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members, was impermissible.
Petitioner misapprehends the meaning of the Sanchez decision. In Sanchez, the

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California Supreme Court considered when gang experts may rely on matters based

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upon out-of-court statements, i.e., hearsay, in forming expert opinions for purposes

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of the Confrontation Clause. The state high court concluded that a Confrontation

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Clause violation may occur when an expert relies on testimonial hearsay and treats it

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as true and accurate for purposes of formulating his or her expert opinion, absent a

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showing of unavailability and a prior opportunity for cross-examination. 63 Cal. 4th

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at 686. The California Supreme Court, however, expressly, carved out from its

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holding expert opinions in response to hypothetical questions premised on case-

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specific facts that were established at trial. Id. at 684-85. As discussed in the

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Report, various witnesses testified to their percipient knowledge of events indicating

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the affair. The prosecutor based the hypothetical to the gang expert on such witness

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testimony. Both the hypothetical and the expert’s response were permissible under

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Sanchez. Accordingly, regardless of any retroactivity, exhaustion, and AEDPA

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issues involved in Petitioner raising a claim based on a state law decision that issued

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years after his conviction was final, his Sanchez argument fails on its face.

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Petitioner also relies on another California Supreme Court decision that issued

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after his conviction was final – People v. Chiu, 59 Cal. 4th 155 (2014). Under Chiu,
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a defendant may not be convicted of first degree premeditated murder under the

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theory that he aided and abetted a non-murder target crime and the resulting first

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degree murder was the natural and probable consequence of that target crime.

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Instead, such aiding and abetting liability must be based on direct aiding and

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abetting principles. Id. at 158-59. In the Objections, Petitioner raises a new claim

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that Chiu instructional error occurred at his trial.

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Petitioner’s new Chiu claim is unexhausted and not properly raised for the first

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time in Objections. See Greenhow v. Secretary of Health & Human Servs., 863 F.2d

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633, 638-39 (9th Cir. 1988) (“allowing parties to litigate fully their case before the

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magistrate and, if unsuccessful, to change their strategy and present a different

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theory to the district court would frustrate the purpose of the Magistrate Act”),

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overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th

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Cir. 1992) (en banc) (per curiam); see also Rule 2(c)(1) of the Rules Governing

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Section 2254 Cases in the United States District Courts (the petition “must” “specify

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all grounds for relief available to the petitioner”);Greene v. Henry, 302 F.3d 1067,

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1070 n.3 (9th Cir. 2002) (declining to consider three additional ineffective

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assistance of counsel claims and noting, “since they were not made in the federal

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petition, we need not consider them”). Moreover, Petitioner was not convicted of

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first degree premeditated murder; he was convicted of second degree murder. Thus,

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even if his unexhausted and belatedly-raised Chiu claim was properly before the

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Court, any purported Chiu error necessarily was harmless. See Brecht v.

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Abrahamson, 113 S. Ct. 1710, 1714 (1993) (an error is harmless if it did not have a

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“substantial and injurious effect or influence in determining the jury’s verdict”).
The Court has carefully considered Petitioner’s Objections. The Court concludes

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that nothing set forth therein affects or alters, or calls into question, the analysis and

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conclusions set forth in the Report.

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Having completed its review, the Court accepts the findings and

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recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1)

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the Petition is DENIED; and (2) Judgment shall be entered dismissing this action

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with prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATE: March 30, 2017

__________________________________
ANDREW J. GUILFORD
UNITED STATES DISTRICT JUDGE

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