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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALEJANDRO SALAS, 12 13 14 15 Petitioner v. FOULK, Warden, Respondent. Case No. CV 14-8152-AG (GJS) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (“Petition”) and 18 all pleadings, motions, and other documents filed in this action, the Report and 19 Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s 20 Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 21 72(b), the Court has conducted a de novo review of those portions of the Report to 22 which objections have been stated. 23 In his Objections, Petitioner raises two new claims and arguments not previously 24 presented in this action. A district court has discretion, but is not required, to 25 consider evidence or arguments presented for the first time in objections to a report 26 and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); 27 United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). The Court has 28 exercised its discretion with respect to these new matters as follows. 1 In connection with his discussion of Grounds One, Four, and Six in the 2 Objections, Petitioner argues that error was committed within the meaning of the 3 California Supreme Court’s decision in People v. Sanchez, 63 Cal 4th 665 (2016). 4 These habeas claims stem from the admission of third party testimony indicating 5 that Petitioner’s wife was having an affair with a member of the rival gang, and the 6 gang expert’s response to the prosecutor’s hypothetical question premised on such 7 an event. Petitioner asserts that, because the gang expert lacked personal knowledge 8 that the affair had occurred, then under Sanchez, his testimony in response to a 9 hypothetical premised on such an affair, including regarding its likely effect on gang 10 11 members, was impermissible. Petitioner misapprehends the meaning of the Sanchez decision. In Sanchez, the 12 California Supreme Court considered when gang experts may rely on matters based 13 upon out-of-court statements, i.e., hearsay, in forming expert opinions for purposes 14 of the Confrontation Clause. The state high court concluded that a Confrontation 15 Clause violation may occur when an expert relies on testimonial hearsay and treats it 16 as true and accurate for purposes of formulating his or her expert opinion, absent a 17 showing of unavailability and a prior opportunity for cross-examination. 63 Cal. 4th 18 at 686. The California Supreme Court, however, expressly, carved out from its 19 holding expert opinions in response to hypothetical questions premised on case- 20 specific facts that were established at trial. Id. at 684-85. As discussed in the 21 Report, various witnesses testified to their percipient knowledge of events indicating 22 the affair. The prosecutor based the hypothetical to the gang expert on such witness 23 testimony. Both the hypothetical and the expert’s response were permissible under 24 Sanchez. Accordingly, regardless of any retroactivity, exhaustion, and AEDPA 25 issues involved in Petitioner raising a claim based on a state law decision that issued 26 years after his conviction was final, his Sanchez argument fails on its face. 27 Petitioner also relies on another California Supreme Court decision that issued 28 after his conviction was final – People v. Chiu, 59 Cal. 4th 155 (2014). Under Chiu, 2 1 a defendant may not be convicted of first degree premeditated murder under the 2 theory that he aided and abetted a non-murder target crime and the resulting first 3 degree murder was the natural and probable consequence of that target crime. 4 Instead, such aiding and abetting liability must be based on direct aiding and 5 abetting principles. Id. at 158-59. In the Objections, Petitioner raises a new claim 6 that Chiu instructional error occurred at his trial. 7 Petitioner’s new Chiu claim is unexhausted and not properly raised for the first 8 time in Objections. See Greenhow v. Secretary of Health & Human Servs., 863 F.2d 9 633, 638-39 (9th Cir. 1988) (“allowing parties to litigate fully their case before the 10 magistrate and, if unsuccessful, to change their strategy and present a different 11 theory to the district court would frustrate the purpose of the Magistrate Act”), 12 overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th 13 Cir. 1992) (en banc) (per curiam); see also Rule 2(c)(1) of the Rules Governing 14 Section 2254 Cases in the United States District Courts (the petition “must” “specify 15 all grounds for relief available to the petitioner”);Greene v. Henry, 302 F.3d 1067, 16 1070 n.3 (9th Cir. 2002) (declining to consider three additional ineffective 17 assistance of counsel claims and noting, “since they were not made in the federal 18 petition, we need not consider them”). Moreover, Petitioner was not convicted of 19 first degree premeditated murder; he was convicted of second degree murder. Thus, 20 even if his unexhausted and belatedly-raised Chiu claim was properly before the 21 Court, any purported Chiu error necessarily was harmless. See Brecht v. 22 Abrahamson, 113 S. Ct. 1710, 1714 (1993) (an error is harmless if it did not have a 23 “substantial and injurious effect or influence in determining the jury’s verdict”). The Court has carefully considered Petitioner’s Objections. The Court concludes 24 25 that nothing set forth therein affects or alters, or calls into question, the analysis and 26 conclusions set forth in the Report. 27 /// 28 /// 3 1 Having completed its review, the Court accepts the findings and 2 recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) 3 the Petition is DENIED; and (2) Judgment shall be entered dismissing this action 4 with prejudice. 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 8 9 DATE: March 30, 2017 __________________________________ ANDREW J. GUILFORD UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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