Anguiano v. Frauenheim

Filing 13

ORDER DENYING 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Stanley A. Boone on 2/8/2016. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JESUS NABARETTE ANGUIANO,

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Case No. 1:14-cv-01779-SAB-HC

Petitioner,

ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS

v.
SCOTT FRAUENHEIM,
Respondent.

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Petitioner is a state prisoner, represented by counsel, proceeding with a petition for writ

18 of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is the Warden of Pleasant Valley
19 State Prison in Coalinga, California. Both parties have consented to the jurisdiction of the
20 Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF Nos. 4, 7).
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I.

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BACKGROUND

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Petitioner is currently in the custody of the California Department of Corrections and

25 Rehabilitation pursuant to the 2012 judgment of the Tulare County Superior Court for attempted
26 premeditated murder with the allegations that he personally used a deadly or dangerous weapon
27 in the commission of the offense, inflicted great bodily injury on the victim, and committed the
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1 offense for the benefit of a criminal street gang. (ECF No. 1 at 9-10). 1 He was sentenced to
2 fifteen years to life imprisonment. (ECF No. 1 at 10).
Petitioner timely filed a notice of appeal. (LD 1).2 On April 23, 2013, the California

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4 Court of Appeal, Fifth Appellate District, affirmed the conviction and judgment. (LD 4). On
5 May 29, 2013, the Court of Appeal denied Petitioner‘s petition for rehearing. (LD 5). On August
6 14, 2013, the California Supreme Court denied the petition for review. (ECF No. 1 at 2).
7 Petitioner did not file any habeas petitions in state court.
Petitioner alleges that (1) the trial court erroneously denied his mistrial and new trial

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9 motions; (2) his trial counsel was ineffective for failing to call the gang expert, Mr. Hurtado, or
10 another gang expert; and (3) the trial court violated his due process and fair trial rights by
11 including improper language in the CALCRIM No. 1403 jury instruction.
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II.

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STATEMENT OF FACTS

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The record from the California Court of Appeal is as follows: 3

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Around 10:00 p.m. on Wednesday, January 13, 2010, Benny Gallegos went to the
Sports Zone Pizza and Grill in Visalia to meet Deliliah Echavarria. At that time,
Gallegos's head was shaved so that several tattoos were visible. He had a ―CA‖
tattoo on top of his head, which meant ―California.‖ A tattoo on the side of his
head said ―My Crazy Life.‖ A tattoo of ―SD‖ was below his left ear. Gallegos
testified the ―SD‖ tattoo stood for the San Diego Padres and Chargers, and he was
a fan of both teams, which had blue uniforms.

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Gallegos testified he also had a tattoo on the back of his head which said: ―BPM.‖
It meant ―Brown Pride Mexican,‖ which was his ―hood‖ in Corcoran, Kings
County. Gallegos testified that ―BPM‖ was an independent gang and it was not
allied with the Nortenos or Surenos. However, Gallegos admitted that he played
Sureno gang music in his car, and he had previously been called a ―scrap,‖ a
derogatory word for Surenos.

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Gallegos testified he was wearing khaki pants, and a white and black striped shirt
when he entered the bar that night. Gallegos admitted that he had a black bandana

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Page numbers refer to the ECF page numbers at the top right of the page.
―LD‖ refers to the documents lodged by Respondent with the answer on February 6, 2015. (ECF No. 9).
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The Fifth District Court of Appeal‘s summary of the facts in the April 23, 2013 opinion is presumed correct. See
28 U.S.C. §§ 2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the
Court adopts the factual recitations set forth by the state appellate court. See Vasquez v. Kirkland, 572 F.3d 1029,
1031 n.1 (9th Cir. 2009) (―We rely on the state appellate court‘s decision for our summary of the facts of the
crime.‖).
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hanging out of his back pocket. A security guard asked him to put it away.
Gallegos folded the bandana and put it in his pocket. Gallegos testified his
bandana was black, it was not blue, and he was not showing any gang colors that
night.

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Gallegos's conduct in the bar
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Shon Kekauoha was a security guard and bouncer at the Sports Zone. Kekauoha
testified that the bar's patrons were usually ―people who we thought to be more or
less gang affiliated. They would come in large numbers; predominately red shirts,
red jerseys, red hats. It was more or less unofficially known as a Norteno bar or
Norteno spot, really.‖ The bar had a dress code to ―keep down any gang presence
there as far as clothing articles.‖ The bar did not allow patrons to wear bandanas
because of possible gang affiliations. Kekauoha and the other bouncers often had
to kick out self-admitted Norteno patrons who got into gang disputes with other
bar patrons who represented where they were from.

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Kekauoha testified that when Gallegos arrived at the bar, he was showing a blue
bandana out of his back pocket. Kekauoha was positive that Gallegos's bandana
was blue and not black. Kekauoha also saw Gallegos's tattoos. Kekauoha told
Gallegos that the bandana was not allowed and to either put it entirely in his
pocket or take it back to his car. Gallegos put it in his pocket and entered the bar
with his girlfriend.
Kekauoha testified that once Gallegos was inside the bar, he pulled the blue
bandana out of his pocket and displayed it. Kekauoha again told Gallegos to put
away the bandana, and Gallegos complied. Later in the evening, Kekauoha saw
Gallegos dancing while the blue bandana was wrapped around his knuckles.
Another security guard told Gallegos to put the bandana away.

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Kekauoha testified that despite the admonishments about the bandana, Gallegos
appeared to be ―minding his own business‖ while he danced with his girlfriend.
Gallegos testified he did not have any conflicts with anyone in the bar. He did not
notice any Norteno gang members in the bar; he did not see anyone throwing
gang signs; and he did not hear any gang slurs. However, Gallegos admitted that
at one point, he ―threw up a dub‖ sign for ―W,‖ representing ―West Coast,‖ but he
did not direct the sign at anyone.

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The stabbing

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Gallegos testified he was having a drink when he suddenly felt ―some sharp
pains‖ in the back of his head. He raised his hand to the back of his head and felt
pain in his hand. He looked at his hand and saw ―a whole bunch of blood was
coming out.‖ He realized he had been stabbed, but he had not seen the assailant
because the person came from behind him.

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Nathan Mendoza was another patron at the bar that night. He did not know
Gallegos, but he saw the tattoos on the back of Gallegos's head and thought
Gallegos was connected to a gang. Mendoza testified that he saw a man ―creep
up‖ behind Gallegos, and ―the guy just struck‖ Gallegos twice in the back of his
head. Mendoza testified the suspect was holding a small, sharp object in his hand.
Kekauoha testified that he felt some tension in the bar that night, but there were
no fights or assaults. He suddenly saw an unknown male rush behind Gallegos on
the dance floor. The assailant raised his arm and ―came down the back of
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[Gallegos's] head.‖ Gallegos's head jerked forward, and the assailant retracted the
blade from Gallegos's head and then ran out of the bar. Gallegos was very
disoriented and bleeding from the head.

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Kekauoha decided not to immediately stop the suspect because he believed the
man still had a knife. Once the suspect left the bar, Kekauoha chased him from a
distance. The suspect ran away by himself. After chasing him for a few blocks,
Kekauoha broke off the pursuit because he was concerned the man might have a
firearm.

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The initial investigation

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Around 11:00 p.m., police officers responded to the bar. Officer Richard Cressall
found Gallegos lying on the ground in front of the bar. Several patrons and staff
members were trying to help him. Gallegos was taken to the hospital.

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Officer Cressall also found Deliliah Echavarria outside the bar, and then drove her
to the hospital where Gallegos had been taken. Echavarria told Cressall that ―she
was with her boyfriend [Gallegos] inside the bar when a group of Hispanic males
came up behind him, and one of them with an unknown type instrument stabbed
him approximately three to four times in the back of the neck.‖ Echavarria
initially said that she did not recognize the suspect.
Officer Cressall testified that Echavarria said the suspect's name was ―Jesse,‖ and
she recognized him from a previous confrontation at the ―Blitz‖ bar, when the
man brandished a weapon at her. Echavarria said that about one week later, she
was at ―Wal–Mart‖ and saw ―Jesse‖ as he was ―driving around the parking lot,‖
and said he gave her ―menacing looks.‖

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Identification of defendant
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The police did not identify a suspect until Detective Luma Fahoum reviewed the
bar's security videotape, which depicted the activities of various patrons before,
during, and after the stabbing. Fahoum, who previously worked in the gang
suppression unit, recognized defendant as the man who stabbed Gallegos. Fahoum
knew defendant from prior contacts.

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Fahoum testified that the videotape showed defendant had been in the bar with a
group of people. Defendant was the only person who walked toward the victim,
had an altercation with the victim, and then ran out of the bar.

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On January 20, 2010, Detective Lampe showed Shon Kekauoha a photographic
lineup which contained defendant's ―mug shot.‖ Kekauoha could not identify
anyone as the suspect. Kekauoha said he had actually ―carded‖ the suspect at the
door when he entered the bar that night and had seen his photo identification.
Later that same day, Detective Lampe prepared another photographic lineup
which contained defendant's picture from his driver's license. Kekauoha looked at
the second photographic lineup, and identified defendant as the person who
stabbed Gallegos.

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Echavarria's statement
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On January 25, 2010, Detective Lampe interviewed Deliliah Echavarria after she
had repeatedly refused to speak to the police or return their telephone calls. She
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was staying at a motel in Visalia under a false name. Echavarria said she used the
alias because she was afraid that defendant would find her. Echavarria seemed
hesitant and nervous about giving a statement to the police, but she was not under
the influence of drugs or alcohol.

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Echavarria said she had been dating Gallegos since the prior year, and she went
out exclusively with him. Echavarria identified defendant from the photographic
lineup as the man who stabbed Gallegos. Echavarria said she knew defendant
from prior incidents at the Blitz bar and ―Walgreens.‖ During the Blitz bar
incident, defendant swore at her and pulled something from his waistband, which
she believed was a gun.

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Detective Lampe asked Echavarria if she was in a gang. She said no. He asked if
Gallegos was in a gang. She replied that he would have to talk to Gallegos
himself.

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Echavarria's trial testimony

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At trial, Deliliah Echavarria testified as a reluctant prosecution witness. She
initially testified that she had never been to Sports Zone; she was not present
when Gallegos was stabbed; she did not know defendant; she never talked to the
police about the stabbing; she never accused defendant of bothering her before the
stabbing; and she never said defendant stabbed Gallegos. Echavarria testified she
could not remember anything because she was ―always high.‖

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On further examination, Echavarria eventually admitted that she knew Gallegos,
and she was dating him at the time of the stabbing. She also admitted that she was
with Gallegos when he was stabbed, but still insisted that she did not know where
it happened because she was drunk and high that night.

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Echavarria also testified that she knew defendant before she knew Gallegos, and
that she previously went out with defendant. Echavarria claimed her previous
statements about defendant were false because she did not like defendant.
Echavarria testified that she did not know if defendant was in a gang, he never
brandished a weapon at her at the Blitz bar, and he never ―maddogged‖ her at
―Walgreens‖ or any other place. Echavarria testified she never identified
defendant in a lineup or saw defendant do anything to Gallegos.

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Kekauoha's trial testimony

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At trial, Kekauoha watched the bar's security videotape and testified that it
showed that the suspect entered the bar with a person in a white hooded
sweatshirt. The suspect was wearing a black shirt. The suspect and his companion
walked toward a group of males. They stood and spoke with them. The suspect
walked through the crowd to the dance floor. The suspect appeared to reach into
his right pocket. The suspect stepped behind Gallegos, while Gallegos faced the
opposite direction. The suspect stabbed Gallegos in the back of the head, and then
he ran out of the bar. Kekauoha testified that after reviewing the videotape, he
was positive that defendant was the person who stabbed Gallegos.

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Evidence about other Nortenos in the bar

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The officers determined that the patrons at the bar that night included Mike Ruiz,
Feliz Ruiz, and Alex Cervantez, who were sitting together at a table when the
officers arrived to investigate the stabbing; Gilbert Salazar; and Tommy Madrid.

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Detective Fahoum testified that based on her prior experience with the gang unit,
Mike Ruiz was a Norteno and the brother of Felix Ruiz, who was a high ranking
northern gang member in Tulare County. Tommy Madrid was a northern gang
member with some ―stature.‖ Alex Cervantez was also a northerner.

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Evidence about defendant's possible gang affiliation
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Detective Fahoum testified she knew defendant and his brother from her prior
experience in the gang unit. On April 13, 2007, Fahoum participated in a search
of defendant's home and seized two firearms from his closet. Fahoum testified
that she did not find any gang indicia in defendant's room during the search.
When Fahoum found the guns, defendant said he had them because ―gang
tensions were high‖ in his neighborhood ―on the north side of town.‖ Defendant
lived in a predominately northern gang area, but there were also some Asian and
southern gangs which conflicted with northerners. Detective Fahoum had never
encountered defendant with any gang indicia during her prior contacts with him.

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Detective Lampe testified that he booked defendant into jail in connection with
this case and asked defendant if he was affiliated with any gang for housing and
safety purposes. Defendant initially said, ― ‗General population is fine.‘ ‖ Lampe
told defendant that he did not want him to be hurt and asked if he ―might feel
more comfortable being housed with a particular group‖ for his own safety.
Lampe may have asked defendant if he wanted to be ― ‗housed north or south?‘ ‖
In response, defendant said that he ―hangs around with the northerners. He would
prefer to be put with them.‖ Defendant never acknowledged membership with a
northern gang.
The Prosecution’s Gang Expert

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Visalia Police Officer Michael Carsten testified as an expert on the Norteno gang,
which had over 300 members and was the predominant criminal street gang in
Tulare County. The Nortenos are associated with the Nuestro Familia prison gang
and claim the color red and the number 14. The Surenos are rivals and enemies of
the Nortenos. The Surenos are associated with the Mexican Mafia prison gang
and claim the color blue and the number 13.
Officer Carsten testified that tattoos which are common among Nortenos include
city names or area codes and stars which represent ―the northern star.‖ A fivepointed star ―typically symbolizes‖ a completed mission for the gang. Norteno
gang members in Tulare County have also adopted the logo for the Minnesota
Twins, which consists of overlapping letters of ―T and C.‖ Carsten had seen
Norteno gang members wearing belt buckles with the letter ―N‖; apparel from the
Nebraska Cornhuskers, consisting of a red letter ―N‖; and red apparel from the
Cincinnati Reds.

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Officer Carsten acknowledged that members of the Norteno gang were not
wearing red in Tulare County as frequently as before. Carsten explained that
Nortenos and other gang members have learned from their experiences in the
court system to downplay their gang affiliations when talking to the police about
their association with other gang members, the significance of their clothing and
tattoos, and when asked about their affiliations while being booked.

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Primary activities/predicate offenses

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Officer Carsten testified the primary activities of the Norteno street gang in Tulare

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County included robbery, carjacking, murder, attempted murder, auto theft,
burglary, shooting at inhabited dwellings, witness intimidation, and drug
transactions. Carsten had personally investigated vandalisms, robberies,
burglaries, carjackings, witness intimation incidents, and auto thefts involving
Nortenos.
Officer Carsten explained that one way to get into the Norteno gang was to put in
―work‖ for it, by committing a violent crime or a series of crimes at the gang's
direction. A gang member would gain respect and credibility, and rise within the
gang, by committing crimes or missions for it, which included attacking or killing
a rival gang member, particularly in front of witnesses. A Norteno did not need
permission from a higher ranking gang member to kill a Sureno.

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Officer Carsten testified about two predicate offenses committed by members of
the Norteno gang in Tulare County, but which did not involve defendant. In
December 2008, Isaac Sanchez and Daniel Quintano, active members of the
Norteno gang, were convicted of armed robbery, with personal use of a firearm
and the gang enhancement. The convictions were based on an incident when they
confronted a victim and asked if he ― ‗bang[ed].‘ ‖ The victim said no, and they
robbed him at gunpoint. In May 2007, Richard Contreras and Javier Solis, active
members of the Norteno gang, were convicted of, respectfully, second degree
murder and voluntary manslaughter, with knife and gang enhancements. The
convictions were based on an incident where Contreras and Solis confronted two
victims and challenged them for being on their block, attacked them with knives,
killed one victim, and injured the another person.

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Defendant's gang status

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Officer Carsten testified to his opinion that defendant, also known as ―Chewy,‖
was a validated member of the Norteno gang, based on previous contacts with
defendant, inmate classification forms, and his tattoos.

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Carsten testified that on April 23, 2000, defendant and three other Nortenos
assaulted a person because that person was not in their gang. On June 13, 2003,
the mother of a Sureno gang member reported that someone was following her
car. Defendant was subsequently identified as the person who followed her. When
defendant was contacted, he was wearing a belt buckle with the letter ―N‖ on it.
Carsten conceded that defendant's middle name was ―Navarrete.‖

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Officer Carsten was also aware of the incident in April 2007, when Detective
Fahoum searched defendant's house and found two guns, a grenade, and
ammunition. Defendant said he had the firearms for protection because of gang
tensions in the neighborhood. Carsten thought defendant's reason was significant
because ―[a] person who has a problem with rival gangs is going to need to arm
themselves for protection.‖ On cross-examination, Carsten conceded that there
were quite a few people who lived in the north side who had guns to protect
themselves in the neighborhood, and not every person was a gang member.
On February 19, 2010, defendant was contacted by police while driving his
vehicle with Anthony Cortez, a validated Norteno, and two Norteno associates.
The traffic stop was conducted because defendant's car was described as a vehicle
involved in an incident where a passenger brandished a gun. When the car was
stopped, the officers found that Cortez had a gun in his shoe. Defendant denied
being a gang member, and denied any knowledge of the gun.

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Officer Carsten also testified about the information which defendant had
previously given on inmate classification forms during the booking process. In
January 2002, defendant indicated his enemies were ―southerners.‖ In May 2006,
defendant indicated he did not associate with any criminal street gangs. In July
2007, defendant again stated that he did not associate with any criminal street
gangs, but identified ―southerners‖ as enemies for his own safety. In October
2007, defendant indicated he associated with ―northern prison or street gangs.‖
Officer Carsten testified that on January 28, 2010, when defendant was booked
into jail on this case, he denied any association with a street gang and asked to be
placed in general population. The booking officer asked defendant whether his
safety would be in jeopardy if he was placed with southerners. Defendant replied:
― ‗Okay. Well, put me with northerners.‘ ‖
Officer Carsten testified that defendant had a tattoo of a ―five-pointed star‖ on his
neck, with a picture of the state of California on top of it, which indicated that he
was a Norteno from California. He also had tattoos of ―Tulare,‖ ―County,‖ and
―TC,‖ in black and red ink, on his right arm. The ―TC‖ tattoo was similar to the
Minnesota Twins symbol, which has been adopted by Norteno gang members.
Officer Carsten conceded that he did not know whether defendant had served time
in prison. Carsten testified that he was not aware that defendant had any prior
convictions for gang-related offenses.
Officer Carsten also conceded that defendant was not wearing red clothing on the
night of the stabbing. There was no evidence that he had previously been seen in
red clothing, or that gang paraphernalia had ever been found at defendant's house.
Defendant did not have any tattoos which signified ―14‖ or the Huelga bird.

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Gallegos's gang status
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Officer Carsten testified to his opinion that Benny ―Lucky‖ Gallegos was an
active member of the Sureno gang, based on Gallegos's tattoos and prior
admissions. On January 24, 2010, after the stabbing, Gallegos told an officer that
he was an active BPM Sureno gang member from Corcoran. Carsten testified that
he spoke to a former Corcoran police officer who identified BPM as a Sureno
gang. He did not know the basis for that officer's opinion about BPM's affiliation.
Officer Carsten admitted that Gallegos claimed that he had left the gang life
behind him. On December 21, 2008, Gallegos was a victim of a gang offense, and
said he used to be a Sureno. On the night of the stabbing, Gallegos told an officer
that he was an inactive Sureno.

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However, Officer Carsten testified that Gallegos showed a blue bandana in the
bar, and he had Sureno tattoos. Carsten further testified that Gallegos's claimed
affinity for San Diego teams, and his ―SD‖ tattoo, represented the Sureno gang
territory of Southern California.

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Deliliah Echavarria's gang status

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Officer Carsten was aware of Deliliah Echavarria's tattoos, including three stars
on her neck, but he did not know if she was a Surena. He testified that it was
―[n]ot absolutely unheard of‖ for a Surena to date a Norteno.

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Officer Carsten's testimony about the videotape

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At trial, Officer Carsten narrated the bar's security videotape as it was played for
the jury, and identified several people with whom defendant associated before the
stabbing. Carsten testified to his opinion that the videotape showed that defendant
arrived at the bar with Tommy Madrid. Defendant was wearing a black T-shirt
and Madrid was in a white hooded sweatshirt. Madrid was a Norteno of ―some
stature‖ because he had served prison time. He also had a ―VISA‖ tattoo on the
back of his head, which meant North Side Visalia.
Officer Carsten testified the videotape also showed that Mike Ruiz, Felix Ruiz,
and Alex Cervantez were at the bar that night. Detective Fahoum testified Mike
Ruiz was a Norteno; Felix Ruiz, his brother, was a high ranking northern gang
member in Tulare County; and Alex Cervantez was also a northerner.

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Officer Carsten testified that Shon Kekauoha, the security guard, stated that there
was a group of people in the bar that he believed to be northern gang members,
and the victim had possessed a blue bandana. Nathan Mendoza, a bar patron, said
the victim showed off that he was a southern gang member.
Officer Carsten testified videotape showed that defendant and Tommy Madrid
stood together at the bar while Madrid spoke to Alex Cervantez. Gilbert Salazar
and Alex Cervantez were at the same table and talking with each other. Defendant
shook hands with Mike Ruiz as Salazar stood next to them.

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Officer Carsten noted that according to a police report, Mike Ruiz said he was at
the bar with Cervantez, but he denied knowing Madrid, and he claimed he never
spoke to anyone else that night. Carsten testified the videotape refuted Mike
Ruiz's claims because it showed Ruiz and Madrid ―in close proximity‖ and
engaged in ―what appears to be a conversation between the two of them.‖ The
videotape also showed Cervantez talking to defendant, Salazar, Mike Ruiz, and
Madrid. Cervantez was standing just a few feet away from Gallegos, and he was
facing the direction where the stabbing later occurred. The videotape showed
Cervantez talking to the man in the red shirt, identified as ―Bro.‖
Officer Carsten testified that Gilbert Salazar later told an officer that ―the person
he knew as Bro told him there was going to be an attack on a scrap at the bar. His
indication was that he did not want to be part of that attack. He also indicated he
was a Norteno gang member and said that he was not active at the time.‖ ―Bro‖
was described as ―a male adult wearing a red shirt.‖ Carsten testified that
Salazar's statement was important because it showed that more than one person
knew there was going to be an attack.
Officer Carsten testified about the conduct of ―posting up,‖ which meant
―standing watch. Guarding.‖ Carsten testified to his belief that videotape showed
the man in the red shirt, who was standing next to Cervantez and Madrid, was
looking in the general direction of the area where Gallegos was. Carsten believed
the man in the red shirt was discussing something with Madrid. At the same time,
Cervantez and Salazar were looking in the opposition direction.
Officer Carsten testified to his opinion that the assault on Gallegos was a
coordinated attack, based on his review of the security videotape.
―In viewing the video, the persons that I've identified as Mike Ruiz,
Alex Cervantez, [defendant], Tommy Madrid, and Gilbert Salazar,
in watching those persons and Mr. Gallegos in the video, when Mr.
Gallegos walks into the bar, he is noticed by or appears to be
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noticed by Mike Ruiz. And Mike Ruiz goes out of his way to keep
an eye on Mr. Gallegos as he walks through the bar. And then there
appears to be some sort of communication between Ruiz and the
others. And they're back and forth. There is communication
between Ruiz and Madrid and Madrid and [defendant], also
including Salazar and this other person we know as Bro in the red
shirt. Also Alex Cervantez. There is communication between all of
them leading up to the incident.‖

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Officer Carsten testified that based on his review of the security videotape, it was
his opinion that defendant discussed the assault with Gilbert Salazar. Carsten
conceded that he could not be sure about the conversation because there was no
sound on the tape. Carsten also conceded that he did not have any information
that defendant previously knew the Ruiz brothers, Madrid, or Cervantez prior to
the night of the stabbing.
Officer Carsten testified that the videotape showed that the man in the red shirt
appeared to walk to the dance floor and move closer to Gallegos. Cervantez
appeared to be facing Gallegos's ―general direction.‖ Carsten testified that
defendant was standing next to Madrid, and they appeared to be discussing
something.
Officer Carsten testified the videotape showed that defendant walked to the dance
floor, followed by Salazar. Salazar stood next to Cervantez. Defendant reached
into his pocket and walked up to Gallegos. Defendant's hand went up and down
toward Gallegos's head as he stabbed him.

14
15
16

Officer Carsten testified the videotape showed that Tommy Madrid moved to a
different location in the bar, away from the location of the assault, when
defendant stabbed Gallegos. Carsten testified it was ―tough to say what exactly he
could see from that vantage point from the video, but it does appear that there is a
surrounding-type of the victim.‖

17
18
19

On cross-examination, Officer Carsten testified that he did not have any evidence
that defendant bragged about the stabbing of Gallegos. Carsten also conceded that
there was no evidence as to exactly what defendant and the other men were
talking about when they were seen together on the videotape, and no witnesses
overheard their conversation.

20
21
22
23
24
25
26
27
28

Officer Carsten testified to his opinion that defendant's attack on Gallegos, as
depicted in the video, could have gotten him into the Norteno gang based on his
commission of that crime. Carsten conceded there was no evidence whether
defendant or his associates knew Gallegos, whether Gallegos was affiliated with a
gang, or they saw Gallegos with the bandana. However, defendant would not have
to know that Gallegos was a Sureno if he had been directed to perform the assault
by another gang member. Carsten conceded that he did not have any evidence that
defendant received direction from anyone to attack Gallegos, but believed the
videotape showed some nonverbal communications.
―When Mr. Gallegos enters the bar, Mike Ruiz pays very close
attention to that. As a matter of fact, he watches him very closely
as he enters the bar. And then throughout the course of the video,
you can see as the male in the red shirt known as Bro is standing in
close proximity with Mr. Gallegos, as is Mr. Cervantez, as is
Gilbert Salazar.‖
10

1
2

Officer Carsten believed that Mike Ruiz's actions showed him doing ―more than
just looking at somebody,‖ and that he ―followed‖ Gallegos and watched him
―very closely,‖ although Ruiz did not gesture or point at Gallegos.

3
4
5

Officer Carsten conceded that he did not know whether any of these actions were
communicated to defendant, or what defendant discussed with Ruiz, Salazar,
and/or Madrid. In his expert opinion, however, he believed the videotape showed
that defendant, Mike Ruiz, Salazar, and Tommy Madrid were looking at Gallegos
and talking about him.

6
7

Officer Carsten conceded that the videotape did not show Gallegos flashing the
bandana at any time. However, both Shon Kekauoha and Nathan Mendoza stated
that they saw Gallegos flashing the bandana inside the bar.

8
Hypothetical questions
9
The prosecutor asked Officer Carsten about the following hypothetical question:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

―Let's say an individual goes into a place with another high ranking
Norteno gang member, meets up with some other Nortenos in that
bar, and other members of that group go back and forth posting up
close to a Sureno gang member, and after these individuals go back
and forth and communicate with each other, then the person that
came into the establishment with that high ranking individual then
goes over to that Sureno and stabs him in the neck four times with
a blade-type instrument....‖
Officer Carsten testified that in his opinion, the crime would have been committed
for the benefit of the Norteno gang because ―it is an attack against a rival gang
member. It's a long time rivalry between Nortenos and Surenos. This is one more
attack in an attempt to take out, disable, or at least injure a rival gang member.‖
Carsten further testified the crime would have been committed in association with
the Norteno gang based ―on persons present with the assailant prior to the act
occurring.‖
Officer Carsten testified the offense would further the Norteno gang because of
―the rivalry between Nortenos and Surenos. It's a struggle for power. It's a show
of dominance. It is a direct attack against the rival. It promotes the gang. It
spreads fear into other people and let's them know that Norteno gangs and Sureno
gang, one, are rivals, and, two, are willing to use deadly force when they attack
one another.‖ The offense also would have promoted the Norteno gang because
Nortenos discuss and brag about their crimes with each other, and the assailant's
status would be elevated within the gang. ―That he's willing to attack a rival gang
member in front of ... a group of people, not caring about himself, but ... caring
more about attacking that gang member.‖ There was ―no question‖ about the
significance of ―a public display‖ of committing a crime in front of other gang
members.

25
26
27

Officer Carsten was asked about a hypothetical situation involving a former
girlfriend:
―Q. And in your expert opinion, what would be the reaction of a
Norteno if he was to lose his girl to a Sureno?

28
11

1
2

―A. In my opinion, he'd be upset and he would want to exact some
sort of revenge.‖

4

Officer Carsten further explained that ―[i]f that person was a rival gang member,
that goes even farther to say that that person would need to be punished.‖ The
other gang members would react by standing up for their fellow gang member, if
the girl was dating a rival gang member.

5

Cross-examination; hypothetical questions

6

On cross-examination, defense counsel asked Officer Carsten whether a person
would be a Norteno if that person went out and had ―a couple beers with a guy
that happens to be an old school chum‖ who was a Norteno. Carsten replied that
the person would not be a Norteno without more information.

3

7
8
9
10
11
12
13
14

Defense counsel also posed a hypothetical question as to whether an assault
would constitute a public display of violence to promote the gang:
―Q. Well, person beats up another person on their own, how is that
promoting the street gang? Let me put some other factors involved.
The person has no gang attire on, the person has no readily
apparent gang tattoos, uses no gang epithets, and says no—gives
no indication as to what the motivation for the assault is, how is
that for the benefit of a street gang?
―A. That by itself with no other information, no previous history of
that person, no associations with that person, I can't say that it is or
it isn't.‖

15
16

Defense counsel asked about Echavarria's statements about her
prior dating relationship with defendant.

18

―Q.... Isn't it just as possible that the motivation for this particular
assault was jealousy based on the factors you have in front of
you?‖

19

―A. I won't say it's impossible, but that's not my opinion.‖

20

―Q. And it's further substantiated as a possibility based on the lack
of factors from [defendant]; no gang clothing, no gang epithets, no
apparent gang motivation, is that correct?‖

17

21
22
23

―A. No, I can't say that. There is certainly gang association. There
is certainly gang-related tattoos. There is certainly previous
contacts with gang members. That's what I use to formulate my
opinion.‖

24

26

Officer Carsten further conceded that when defendant looked in a particular
direction, he could not testify from the videotape whether he was looking at
Gallegos or ―the woman that he dated.‖

27

Defendant’s Trial Testimony

28

Defendant's trial testimony was the only defense evidence presented. Defendant

25

12

1

denied being a member of any gang, but the Nortenos were the primary gang at
every place he had lived.

2
3
4
5
6
7
8
9
10
11
12
13
14

Defendant admitted that he had previously been to prison for possession of
narcotics and firearms which were found in his house. He had the guns to protect
his family and children because members of the Oriental Troops Asian gang lived
near him and occasionally jumped his fence when running through the
neighborhood. Defendant denied having the guns because of any connection with
the Nortenos, or to protect himself from Surenos.
Defendant admitted that the police stopped his car in February 2010, and that
passenger Anthony Cortez had a gun. Defendant had been giving a ride to Lynette
Barba when she asked defendant if Cortez and another man could also get a ride.
Defendant explained that he did not know Cortez, that Cortez was a Norteno, or
that he had a gun.
Defendant testified that his tattoos were not gang-related, and he did not have any
Norteno or ―14‖ tattoos. The ―Tulare County‖ tattoo represented Tulare County,
and the ―TC‖ tattoo was for the Minnesota Twins. Defendant admitted he got the
―TC‖ tattoo while he was in prison. Defendant claimed he was a fan of the Twins,
and knew that Kirby Puckett had played for the farm club in Visalia. Defendant
testified he designed the star and California tattoos on his neck, which meant
―California porn star,‖ as a joke among his girlfriends.
Defendant further testified he did not wear red clothing or hats, and did not have
any apparel with the ―TC‖ design. He usually wore dark colors like black and
gray. His ―N‖ belt buckle stood for his middle name. He denied that his nickname
was ―Chewy.‖

15

19

Defendant testified that he had never told any jail intake officers that he was a
member of a gang. Defendant admitted that he would ―hang out‖ with people who
he felt comfortable with, and they might have been gang members. He denied
doing anything to make Surenos angry at him. Defendant admitted that he had
listed ―southerners‖ as his enemies in jail: ―Well, I mean, if you run into them in
jail, then what are you going to do? You're going to get hurt, right?‖ He thought
that southerners would think that he was a Norteno because he socialized with
them in high school.

20

Defendant and Echavarria

21

Defendant testified that he met Deliliah Echavarria when she worked as a stripper
at a private party in August 2009. They started dating, and he thought they were
in an exclusive relationship, although defendant was married to another woman.

16
17
18

22

26

Defendant testified they broke up because Echavarria was jealous that he had
other girlfriends. Defendant testified that he saw Echavarria at the Blitz bar, when
he was there with a couple of girlfriends. Echavarria became ―a little hostile‖
toward him, and called the girls various names. The bar's bouncers threw her out.
Defendant denied brandishing a weapon during that incident. Defendant testified
he later saw Echavarria at Walgreens while he was with two other girlfriends.
Echavarria ―flipped [him] off‖ and was hostile toward the girls.

27

The night of the stabbing

28

Defendant testified that he worked for an almond warehouse and carried a box

23
24
25

13

1
2
3
4
5
6

cutter for his work. On the day of the stabbing, he finished work and went to a
friend's house. Defendant and his friend split a 12–pack of beer. Defendant left
the friend's house and went to the Sports Zone bar by himself.
Defendant testified he did not enter the bar with Tommy Madrid. Defendant
initially testified he did not know Tommy Madrid, but then admitted he knew him
from high school. Defendant had worked as a bouncer at different bars, and also
recognized Madrid from seeing him at those bars. Defendant testified he knew
Madrid enough to say hello to him. Defendant knew Madrid used to hang around
with gang members in high school, but he did not know if he was a gang member
because they never talked about it.

11

Defendant testified he followed Madrid to the bar, where he shook hands with a
couple of guys, shook hands with Madrid, and bought a beer for Madrid and a
drink for himself. Madrid introduced him to several people. The music was very
loud, and defendant did not hear their names or anything Madrid said about them.
Based on his prior experience working at other bars, defendant recognized Felix
and Mike Ruiz, Alex Cervantez, and Gilbert Salazar, but he did not know their
names and did not know if they were gang members. Defendant, Madrid and the
other men did not discuss Gallegos, or whether Gallegos had engaged in any type
of gang-related activity.

12

The stabbing

13

Defendant testified that as soon as he entered the bar, he saw Echavarria dancing
with a man, later identified as Gallegos. Defendant testified that he felt upset,
angry, and shocked. Defendant did not know or recognize Gallegos; he did not
see Gallegos holding a blue rag; he did not see any Sureno tattoos on Gallegos;
and he did not know or care if he was a Sureno.

7
8
9
10

14
15
16
17

Defendant testified that while he was standing with Madrid, he kept looking at
Echavarria. He became upset about the way she was dancing with the other man,
and that was ―building up my anger. That's the only thing that was on my mind
was watching her dance on this other man.‖

18
19
20
21
22
23
24
25
26
27

Defendant testified he did not talk to Madrid or the other men to plan the assault
on Gallegos. However, defendant admitted that he told the other men that a man
was ― ‗with my girl,‘ ‖ and he was ― ‗going to kick his ass.‘ ‖ Defendant might
have told the man in the red shirt the same thing. Defendant admitted that the
videotape showed him talking with Tommy Madrid just before the stabbing.
Defendant testified that he might have told Madrid that he was going to leave.
Defendant testified that he walked toward Echavarria and Gallegos. He still had
his box cutter from work, took it out of his pocket, and opened the six-inch blade.
―After seeing what she was doing, she was dancing on him, I just lost it.‖
Defendant testified that he walked behind Gallegos, ―acted out,‖ and stabbed
Gallegos in the back of his head and neck. He stabbed Gallegos because he felt
too drunk to fight him, and he thought the stabbing was ―the best way‖ to hurt
him. Defendant testified he did not intend to kill Gallegos. ―All I wanted to do
was hurt him because she was hurting me, and I was mad.‖ Defendant would have
sliced Gallegos's throat if he had wanted to kill him. Defendant did not assault
Echavarria because ―I'm not going to touch a woman. I'm not going to put hands
on a woman.‖

28
14

1

Verdict

2

Defendant was convicted of attempted premeditated murder, with special
allegations that he personally used a deadly or dangerous weapon in the
commission of the offense; he inflicted great bodily injury on the victim, and he
committed the offense for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(C)).

3
4
5

III.
6
LEGAL STANDARD FOR REVIEW
7
8

Relief by way of a petition for writ of habeas corpus extends to a person in custody

9 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
10 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v.
11 Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Petitioner asserts that he
12 suffered violations of his rights as guaranteed by the U.S. Constitution.

The challenged

13 conviction arises out of Fresno County Superior Court, which is located within the venue of this
14 Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).
15

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

16 of 1996 (―AEDPA‖), which applies to all petitions for writ of habeas corpus filed after its
17 enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v.
18 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the
19 enactment of the AEDPA and is therefore governed by its provisions.
20

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is

21 barred unless a petitioner can show that the state court‘s adjudication of his claim:
22
23
24

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

25
26 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97-98, 131 S.Ct. 770, 178 L.Ed.2d 624
27 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003);
28 Williams, 529 U.S. at 413.
15

1

As a threshold matter for the first exception for habeas relief, this Court must ―first

2 decide what constitutes ‗clearly established Federal law, as determined by the Supreme Court of
3 the United States.‘‖ Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining
4 what is ―clearly established Federal law,‖ this Court must look to the ―holdings, as opposed to
5 the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.‖
6 Williams, 592 U.S. at 412. ―In other words, ‗clearly established Federal law‘ under § 2254(d)(1)
7 is the governing legal principle or principles set forth by the Supreme Court at the time the state
8 court renders its decision.‖ Id. In addition, the Supreme Court decision must ―‗squarely address
9 [] the issue in th[e] case‘ or establish a legal principle that ‗clearly extend[s]‘ to a new context to
10 the extent required by the Supreme Court in . . . recent decisions‖; otherwise, there is no clearly
11 established Federal law for purposes of review under the AEDPA. Moses v. Payne, 555 F.3d
12 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 169
13 L.Ed.2d 583 (2008)); Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662
14 (2007); Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). If no clearly
15 established Federal law exists, the inquiry is at an end and the Court must defer to the state
16 court‘s decision. Carey, 549 U.S. at 77; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.
17

If the Court determines there is governing clearly established Federal law, the Court must

18 then consider whether the state court's decision was ―contrary to, or involved an unreasonable
19 application of,‖ [the] clearly established Federal law.‖ Lockyer, 538 U.S. at 72 (quoting 28
20 U.S.C. § 2254(d)(1)). ―Under the ‗contrary to‘ clause, a federal habeas court may grant the writ
21 if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
22 question of law or if the state court decides a case differently than [the] Court has on a set of
23 materially indistinguishable facts.‖ Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at
24 72. ―The word ‗contrary‘ is commonly understood to mean ‗diametrically different,‘ ‗opposite
25 in character or nature,‘ or ‗mutually opposed.‘‖ Williams, 529 U.S. at 405 (quoting Webster's
26 Third New International Dictionary 495 (1976)). ―A state-court decision will certainly be
27 contrary to [Supreme Court] clearly established precedent if the state court applies a rule that
28 contradicts the governing law set forth in [Supreme Court] cases.‖ Id. If the state court decision
16

1 is ―contrary to‖ clearly established Supreme Court precedent, the state decision is reviewed
2 under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en
3 banc).
4

―Under the ‗reasonable application clause,‘ a federal habeas court may grant the writ if

5 the state court identifies the correct governing legal principle from [the] Court‘s decisions but
6 unreasonably applies that principle to the facts of the prisoner‘s case.‖ Williams, 529 U.S. at
7 413. ―[A] federal court may not issue the writ simply because the court concludes in its
8 independent judgment that the relevant state court decision applied clearly established federal
9 law erroneously or incorrectly. Rather, that application must also be unreasonable.‖ Id. at 411;
10 see also Lockyer, 538 U.S. at 75-76. The writ may issue only ―where there is no possibility fair
11 minded jurists could disagree that the state court‘s decision conflicts with [the Supreme Court‘s]
12 precedents.‖ Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could
13 disagree on the correctness of the state courts decision, the decision cannot be considered
14 unreasonable.

Id.

If the Court determines that the state court decision is objectively

15 unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the
16 error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619,
17 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
18

For the second exception for federal habeas relief, a petitioner must show that the state

19 court result ―was based on an unreasonable determination of the facts in light of the evidence
20 presented in the State court proceeding.‖

28 U.S.C. § 2254(d)(2).

The AEDPA requires

21 considerable deference to the state courts. ―Factual determinations by state courts are presumed
22 correct absent clear and convincing evidence to the contrary.‖ Miller-El v. Cockrell, 537 U.S.
23 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing 28 U.S.C. § 2254(e)(1)). The question
24 under the AEDPA is not whether a federal court believes the state court's determination was
25 incorrect but whether that determination was unreasonable—a substantially higher threshold.‖
26 Schriro v. Landrigan, 550 U.S. 465, 473–74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).
27

In deciding whether relief from an unconstitutional trial error is warranted, federal courts

28 apply the standard from Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d
17

1 353 (1993) ―uniformly in all federal habeas corpus cases under § 2254,‖ that is, the error must
2 have had ―a substantial and injurious effect or influence in determining the jury's verdict.‖ Bains
3 v. Cambra, 204 F.3d 964, 977 (9th Cir.2000).
4

The court looks to the last reasoned state court decision as the basis for the state court

5 judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson v. Ignacio, 360 F.3d
6 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially
7 incorporates the reasoning from a previous state court decision, this court may consider both
8 decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121,
9 1126 (9th Cir. 2007) (en banc). ―When a federal claim has been presented to a state court and
10 the state court has denied relief, it may be presumed that the state court adjudicated the claim on
11 the merits in the absence of any indication or state-law procedural principles to the contrary.‖
12 Richter, 562 U.S. at 99. This presumption may be overcome by a showing ―there is reason to
13 think some other explanation for the state court's decision is more likely.‖ Id. at 99-100 (citing
14 Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).
15

Where the state court reaches a decision on the merits but provides no reasoning to

16 support its conclusion, a federal habeas court independently reviews the record to determine
17 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
18 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). ―Independent review of the record is not de novo
19 review of the constitutional issue, but rather, the only method by which we can determine
20 whether a silent state court decision is objectively unreasonable.‖ Himes, 336 F.3d at 853.
21 While the federal court cannot analyze just what the state court did when it issued a summary
22 denial, the federal court must review the state court record to determine whether there was any
23 ―reasonable basis for the state court to deny relief.‖ Richter, 562 U.S. at 98. This court ―must
24 determine what arguments or theories ... could have supported, the state court's decision; and
25 then it must ask whether it is possible fairminded jurists could disagree that those arguments or
26 theories are inconsistent with the holding in a prior decision of [the Supreme] Court.‖ Id. at 102.
27 \ \ \
28 \ \ \
18

1

IV.

2

REVIEW OF PETITIONER’S CLAIMS

3

A.

Trial Court’s Denial of Motions for Mistrial and New Trial

4

Petitioner argues that the trial court erred when it denied his motions for mistrial and new

5 trial after his gang expert, Hurtado, resigned.

Respondent argues that there is no clearly

6 established federal law that a defendant is entitled to an expert witness besides a psychiatrist.
7 Respondent also contends that the California Court of Appeal did not solely rely on the evidence
8 of the videotape when it determined that the trial court did not erroneously deny the motion for a
9 mistrial and the motion for a new trial.
Fifth District Court of Appeal‘s Decision

10

1.

11

This claim was presented on direct appeal to the Fifth District Court of Appeal and it was

12 denied in a reasoned decision. (LD 4). Petitioner then presented this claim in a petition for
13 review to the California Supreme Court. The California Supreme Court summarily denied the
14 petition. (LD 7). Federal courts review the last reasoned state court opinion. Ylst, 501 U.S. at
15 803. Therefore, the Court must review the opinion of the Fifth District Court of Appeal. (LD 4).
16 In rejecting Petitioner‘s claim, the Fifth District Court of Appeal stated as follows:
17

I.

18

Based on the procedural history set forth ante, defendant contends
the court abused its discretion when it denied his motion for new
trial based on the resignation of the defense expert, Hurtado.
Defendant argues the court should have granted a new trial based
on an alleged error of law when it denied his motion for mistrial,
and for the ineffective assistance of his defense counsel which led
to the resignation of his defense gang expert.

19
20
21
22
23
24
25
26
27
28

Denial of defendant's motions for new trial; legal error

Defendant contends the court's denial of his new trial motion
resulted in the violation of his constitutional rights to due process,
a fair trial, and effective assistance of counsel. Defendant further
argues that the constitutional violations were prejudicial because
the jury only heard testimony from the prosecution's expert,
Officer Carsten, about his interpretation of defendant's possible
gang status and defendant's conduct as depicted on the surveillance
videotape. Defendant asserts that the court's refusal to grant a
mistrial or a continuance prevented the jury from hearing the
contrary opinions from a defense gang expert that the evidence
showed he attacked Gallegos because of his anger about
Echavarria and his heat of passion; he did not intend to murder
Gallegos; he was not a member of the Nortenos; he did not discuss
19

1

the stabbing with other Norteno members at the bar; and he did not
commit the stabbing to benefit the Nortenos.

2

5

In this section, we will review whether the court properly denied
defendant's motion for a new trial based on the allegation that the
court committed an error of law when it denied his motion for
mistrial. In issue II, we will review the court's denial of defendant's
new trial motion based on the alleged violation of his right to
effective assistance of counsel.

6

A. Motion for new trial

7

12

A motion for new trial may be granted when the court has ―erred in
the decision of any question of law arising during the course of the
trial ....‖ (§ 1181, subd. 5.) ―A trial court's ruling on a motion for
new trial is so completely within that court's discretion that a
reviewing court will not disturb the ruling absent a manifest and
unmistakable abuse of that discretion. [Citation.]‖ (People v.
Hayes (1999) 21 Cal.4th 1211, 1260–1261.) This standard of
review is deferential but ―it is not empty.... [I]t asks in substance
whether the ruling in question ‗falls outside the bounds of reason‘
under the applicable law and the relevant facts [citations].‖ (People
v. Williams (1998) 17 Cal.4th 148, 162.)

13

B. The court's denial of defendant's motion for mistrial

14

Defendant contends the court should have granted his posttrial
motion for new trial because it committed an error of law when it
denied his midtrial motion for mistrial. We must thus review the
court's denial of his motion for mistrial.

3
4

8
9
10
11

15
16
17
18
19
20
21
22
23

―A trial court should grant a mistrial only when a party's chances
of receiving a fair trial have been irreparably damaged, ...‖ (People
v. Bolden (2002) 29 Cal.4th 515, 555.) ―Whether a particular
incident is incurably prejudicial requires a nuanced, fact-based
analysis. The trial court is entrusted with broad discretion in ruling
on mistrial motions. [Citation.]‖ (People v. Chatman (2006) 38
Cal.4th 344, 369–370.)
―We review a trial court's order denying a motion for mistrial
under the deferential abuse of discretion standard. [Citation.]
‗Under this standard, a trial court's ruling will not be disturbed, and
reversal of the judgment is not required, unless the court exercised
its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.‘ [Citation.]‖
(People v. Dunn (2012) 205 Cal.App.4th 1086, 1094 (Dunn ).)

24
C. Carrillo
25
26
27
28

In the instant case, defendant brought a motion for mistrial while
the prosecution was presenting its case, and immediately upon
notifying the court that Hurtado, the defense expert, had resigned
and would not appear at trial. Defense counsel argued the court
should grant a mistrial because defendant could not receive a fair
trial without the testimony of a defense expert. The trial court
20

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3
4
5
6
7
8
9
10
11

denied the motion based on Carrillo v. Superior Court, supra, 145
Cal.App.4th 1511, stating that Carrillo held that it was ― ‗an
extremely rare event‘ ‖ to grant a mistrial because of the perceived
ineffectiveness of defense counsel, and that ― ‗a far safer practice‘
‖ was for the court to intervene ― ‗only in ruling on posttrial
motions following a conviction, if indeed a conviction occurs. It is
unwise for a judge to declare a mistrial due to counsel's alleged
ineffectiveness because it's a chancy business to predict a verdict a
jury may have returned in this case.‘ ‖ (RT 338–339)
The trial court's reliance on Carrillo in this case was misplaced.
Carrillo involved a complex situation triggered by a trial court's
decision to grant a mistrial on its own motion, and without the
defendant's consent, based on its belief that the defense counsel in
that case was prejudicially ineffective because he allowed the jury
to hear evidence about a coerced confession. The trial court
discharged the jury without the defendant's consent, and over
defense counsel's repeated objections that he had valid tactical
reasons for his trial strategy. When the prosecution tried to retry
the defendant, he argued that principles of double jeopardy barred
retrial because the court discharged the jury without his consent.
(Carrillo, supra, 145 Cal.App.4th at pp. 1520–1522, 1524, 1528.)

12
13
14
15
16
17
18
19
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21
22
23
24
25
26
27
28

Carrillo agreed and held that in such circumstances, a defendant
could not be retried if he did not consent to the mistrial and the
discharge of the jury, unless the trial court's decision had been
based on ―legal necessity.‖ (Carrillo, supra, 145 Cal.App.4th at pp.
1523–1524.) Carrillo focused on three cases which ―held that
ineffective assistance of counsel may, in extreme circumstances,
constitute legal necessity for a mistrial. (People v. Manson (1976)
61 Cal.App.3d 102 ... ; People v. McNally (1980) 107 Cal.App.3d
387 ... ; People v. Coleman (1992) 9 Cal.App.4th 493....)‖
(Carrillo, supra, 145 Cal.App.4th at p. 1525, italics added.)
―Where, as here, a trial court becomes convinced
that defense tactics are denying a defendant a fair
trial, the proper course of action, in the absence of
the type of extreme circumstances described in
Manson, McNally and Coleman, is to allow the case
to proceed to judgment and then consider whether
the defendant is entitled to a new trial. [Citations.]
This is what should have occurred in this case. Once
[defense counsel] became aware of the trial court's
willingness to declare a mistrial, the decision as to
the extent of the prejudice allegedly caused by
[defense counsel's] decision to introduce
[defendant's] confession was for [defendant] and his
counsel. [Citation.] The trial court's decision to
declare a mistrial stripped [defendant] of his right to
maintain primary control over his trial and may well
have compromised his effort to prove his
innocence.‖ (Carrillo, supra, 145 Cal.App.4th at p.
1529, italics added.)29
Carrillo concluded that there was no ―legal necessity‖ for the trial
court's sua sponte declaration of a mistrial and discharge of the
21

1

jury without the defendant's consent and, as a result, the defendant
could not be retried. (Carrillo, supra, 145 Cal.App.4th at p. 1529.)

2
1. Analysis
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

As applied to the instant case, the trial court improperly relied on
Carrillo when it denied defendant's motion for mistrial and held
that the matter should be deferred until after the verdict. Carrillo
did not hold that a trial court could never grant a motion for
mistrial based on ineffective assistance in the absence of ―legal
necessity‖ or ―extreme circumstances,‖ or that such motions
should always be deferred until the conclusion of the trial.
(Carrillo, supra, 145 Cal.App.4th at p. 1529.) Instead, Carrillo
addressed a far more complex situation involving the definition of
legal necessity for granting a mistrial motion and discharging the
jury without a defendant's consent, and whether such orders
implicated principles of double jeopardy and barred retrial. Carrillo
was particularly critical of the trial court's failure in that case to
realize that defense counsel's tactical decision about the coerced
confession would not have constituted ineffective assistance if the
defendant expressly agreed with the decision, the court's failure to
determine whether the defendant and defense counsel had
discussed this strategic decision, and whether the defendant
expressly waived his right to exclude the coerced confession.
(Ibid.)
In contrast to Carrillo, defense counsel in this case expressly
moved for a mistrial based on the sudden resignation of Hurtado,
the defense gang expert, in the middle of trial. If the court had
granted the mistrial motion, it would have been with defendant's
consent to discharge the jury, and defendant could have been
retried without determining whether the mistrial motion was
properly based on ―legal necessity.‖ (See, e.g., Carrillo, supra, 145
Cal.App.4th at p. 1528.) The trial court in this case incorrectly
asserted that Carrillo limited consideration of motions for mistrial
based on ineffective assistance, and the better practice was to defer
the legal issues until there was a verdict.

23

We note that Carrillo criticized the trial court in that case for
failing to determine whether the defendant consented to his
defense attorney's tactical decisions, which would have eliminated
the ineffective assistance concerns. In this case, the trial court
apparently failed to evaluate whether there were any alternatives to
defendant's motion for a mistrial, or whether it could address the
situation without waiting for the verdict.

24

D. Dunn

25

While the court's reliance on Carrillo may have been misplaced,
that does not mean that it necessarily abused its discretion when it
denied defendant's motions for new trial and mistrial.

20
21
22

26
27
28

A situation very similar to the instant case was addressed in Dunn,
supra, 205 Cal.App.4th 1086, where the trial court denied a motion
for mistrial after the defense expert failed to appear. In that case,
22

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3
4
5
6
7
8
9

the defendant was charged with the sexual molestation of a child.
Near the end of the prosecution's case, defense counsel advised the
court that his retained expert witness was unavailable to testify
because of scheduling conflicts; the witness had not been
subpoenaed and would not appear; and he could not find a
substitute. Defense counsel had expected the retained expert to
testify about whether there was physical evidence that the
defendant performed an alleged sexual act on the victim. (Id. at pp.
1093–1094, 1095.)
Dunn extensively discussed how to review whether a mistrial
should be granted ―when an expert witness retained by the moving
party (or any other witness expected to testify on behalf of the
moving party) unexpectedly becomes unavailable or otherwise
does not appear at trial.‖ (Dunn, supra, 205 Cal.App.4th at p. 1094,
fn. omitted.) Dunn compared the situation to those addressed in
motions for new trial, which ―should be granted when necessary
‗to insure an accused a fair trial.‘ [Citation.]‖ (Id. at p. 1095.)

10
11
12
13
14
15
16

Dunn held the following four factors should be considered to
determine whether the court should have granted the defendant's
motion for mistrial based on the unavailability of the expert
witness:
―(1) [T]he defendant's diligence in securing the
attendance of the witness [citations]; (2) the
defendant's use of available alternative means to
obtain the desired evidence [citations]; (3) the
defendant's fault for the witness's nonappearance
[citations]; and (4) the nature of the testimony
expected from the witness and its probable effect on
the outcome of the trial [citations].‖ (Dunn, supra,
205 Cal.App.4th at p. 1095.)

17
18
19
20
21
22
23
24
25
26
27
28

Dunn held the trial court did not abuse its discretion based on these
factors. First, while the defendant did not subpoena the expert,
Dunn acknowledged it was not customary for a party to subpoena
his own retained expert witness, and this factor was not
particularly relevant to the situation. (Dunn, supra, 205
Cal.App.4th at p. 1096.) Second, the defendant did not use
―available alternative means‖ to obtain the expert's testimony.
(Ibid.) ―He did not request a continuance of the trial, present a
declaration from or offer to depose [the expert], or seek a
stipulation from the People as to [the expert's] credentials or the
substance of her expected testimony that could be read to the jury.‖
(Ibid.) Dunn held that the defendant's ―failure to at least explore
these options‖ supported the court's denial of his mistrial motion.
(Ibid.)
Dunn held that as to the third factor, the defendant was ―not
entirely free from fault‖ regarding the expert's inability to testify.
(Dunn, supra, 205 Cal.App.4th at p. 1096.)
―... [Defense counsel] knew before trial commenced
that [the expert] was scheduled to leave for vacation
near the time of trial. He therefore should have
communicated more effectively with her and made
23

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3
4
5
6
7
8
9
10
11
12
13

more definitive arrangements to secure her
appearance at trial. Although ordinarily that would
not include service of a subpoena on [the expert]
because she was a retained expert witness, the
combination of counsel's inability to contact her
during trial and her potential unavailability
suggested the need for a subpoena.‖ (Id. at p. 1096.)
Dunn held that the fourth factor was the most important
because the expert's expected testimony ―would not have changed
the result of the trial.‖ (Dunn, supra, 205 Cal.App.4th at p. 1096.)
The defense expert was expected to testify that there was no
physical evidence that the victim's vagina was penetrated.
However, Dunn noted that the charged offense did not require
penetration of the victim's vagina. (Id. at pp. 1096–1098.)
―Nothing in [the expert's] expected testimony could have had any
impact on the controlling law the jury had to apply. [Citation.]‖
(Id. at p. 1098.)
―Thus, because [the expert's] expected testimony
concerning penetration would not
have
contradicted [the prosecution expert's] testimony or
negated the People's legally sufficient theory of the
case, [the expert's] testimony would not have
affected the result of the trial, a factor further
supporting the trial court's denial of [the] mistrial
motion. [Citations.]‖ (Ibid., fn. omitted.)

14
15
16
17
18
19
20
21
22
23
24
25

Dunn also addressed the defendant's argument that his due process
rights were violated in the absence of the defense expert's
testimony, because ― ‗the ―battle of the experts‖ and the reasonable
inferences therefrom created the realistic possibility‘ of a better
outcome for him at trial,‖ since the defense expert's expected
opinion would have differed from the prosecution's expert about
the nature of the victim's physical injuries. (Dunn, supra, 205
Cal.App.4th at p. 1099.) Dunn rejected these arguments and held
there was no factual foundation to support the defendant's claim
because defense counsel ―conceded he had not discussed‖ these
particular issues with the defense expert. Defense counsel ―simply
advised‖ the court ―of his intention ‖ to ask the expert about this
topic. (Ibid., italics added.)
―In sum, all of the factors enumerated above ...,
except the due diligence factor to which we attribute
little weight ..., support the trial court's denial of
[defendant's] motion for mistrial. We therefore
conclude the absence of [the defense expert's]
testimony did not irreparably damage [defendant's]
chances of receiving a fair trial, and the court did
not abuse its discretion in denying the motion.
[Citation.]‖ (Id. at pp. 1099–1100.)

26
27
28

Finally, Dunn concluded that even if the trial court erroneously
denied defendant's motion for mistrial, based on the expert's failure
to appear, the error was harmless under either Chapman v.
California (1967) 386 U.S. 18 or People v. Watson (1956) 46
24

1
2
3
4

Cal.2d 818, because the evidence of defendant's guilt, ― ‗though
[partially] circumstantial, was tight and strong.‘ [Citation.]‖ (Dunn,
supra, 205 Cal.App.4th at p. 1100.) The victim offered a detailed
account of the sexual molestation, several witnesses corroborated
various aspects of the sexual assault because they heard the victim
tell the defendant to get off of her, the victim subsequently
developed a sexually transmitted disease, and defendant tested
positive for that same disease. (Ibid.)

5
1. Analysis
6
7
8
9
10

We now apply Dunn 's analysis to the court's denial of defendant's
motion for mistrial based on Hurtado's resignation as the defense
expert. Based on the first factor, defense counsel exercised
diligence in this case because he retained Hurtado just after the
information was filed and obtained an order for Hurtado to
interview defendant in jail. As in Dunn, defense counsel did not
subpoena Hurtado, but Dunn noted that it was not customary for a
party to subpoena his own witnesses. (Dunn, supra, 205
Cal.App.4th at p. 1096.)

11
12
13
14
15
16

An analysis of the second factor weighs against defendant because
he did not even attempt to use available alternative means to
somehow secure Hurtado's testimony. As in Dunn, defendant did
not offer to depose the expert in order to obtain his testimony.
More importantly, however, defendant did not request a
continuance and refused the court's offer of a short continuance to
determine whether he could convince Hurtado to return, or
investigate possible alternatives to Hurtado's appearance.
Defendant's failure to ―at least explore these options‖ supported the
court's denial of his mistrial motion. (Dunn, supra, 205
Cal.App.4th at p. 1096.)

17
18
19
20
21
22
23
24
25
26
27
28

An analysis of Dunn 's third factor—the defendant's fault for the
witness's nonappearance—also weighs against defendant. As in
Dunn, defendant was ―not entirely free from fault‖ for Hurtado's
resignation from the case. (Dunn, supra, 205 Cal.App.4th at p.
1096.) Defense counsel was aware that Hurtado had potential
scheduling problems with the December trial because of his
academic schedule. More importantly, defendant was aware of
Hurtado's anger about various aspects of the case based on
Hurtado's e-mail of December 9, 2010. Hurtado accused defense
counsel of not protecting his interests. He was upset that he had to
produce a written report for discovery so close to trial, that the
prosecution was challenging his credibility as an expert, and that
he had to appear at an evidentiary hearing for the court to
determine whether he could testify as an expert.
Based on the instant record, however, the prosecution was not
engaging in improper tactics when it asked the defense to comply
with discovery and produce a report from the expert, or when it
requested a hearing on the witness's qualifications as a potential
gang expert. Indeed, defense counsel could have requested the
same type of hearing or conducted voir dire on Officer Carsten's
qualifications as a gang expert. (See, e.g., Evid.Code, §§ 405, 720;
25

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3
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5
6
7
8
9
10
11
12
13
14

People v. Watson (2008) 43 Cal.4th 652, 692; People v. Hill
(2011) 191 Cal.App.4th 1104, 1120–1123; People v. Brown (2001)
96 Cal.App.4th Supp. 1, 36.) The record strongly implies that
defense counsel did not explain this matter to Hurtado, or Hurtado
erroneously believed that the court lacked jurisdiction to determine
if he qualified as a gang expert. Defense counsel was aware of
Hurtado's reaction as of December 9, 2010, based on the e-mail
that he received with the report. The combination of counsel's
conflicts with Hurtado and his potential unavailability during a
December trial ―suggested the need for a subpoena.‖ (Dunn, supra,
205 Cal.App.4th at p. 1096.)
Dunn 's fourth factor as to whether the mistrial should have been
granted is based on ―the nature of the testimony expected from the
witness and its probable effect on the outcome of the trial
[citations].‖ (Dunn, supra, 205 Cal.App.4th at p. 1095.) When
defendant moved for the mistrial in this case, it was difficult for
the trial court to evaluate the nature of the testimony that Hurtado
would have offered. Hurtado's belated discovery report was limited
to the conflicting evidence about whether defendant was a member
of the Norteno gang. Hurtado's report did not address the
surveillance videotape, whether the videotape showed that
defendant was in the bar with the other Norteno gang members,
whether it showed that the other gang members were watching
Gallegos, and whether defendant stabbed the victim because he
was dancing with Echavarria. Hurtado's report also failed to
address any aspects of the charged offense of attempted murder
and defendant's motive.

15
16
17
18
19
20
21
22
23

Defendant argued that the trial court should grant a mistrial
because there would be no defense expert to counter Officer
Carsten's expert testimony. Dunn rejected a similar argument that a
mistrial should have been granted simply because the lack of a
defense expert eliminated the possibility of a ―battle of experts‖
and ― ‗the reasonable inferences therefrom created the realistic
possibility‘ of a better outcome for him at trial,‖ since the defense
expert's expected opinion would have differed from the
prosecution's expert about the nature of the victim's physical
injuries in that case. (Dunn, supra, 205 Cal.App.4th at p. 1099.)
While defendant may have planned to ask Hurtado about the
videotape and other issues not included in his written report, there
was no evidence that defendant discussed these particular issues
with the defense expert or that the expert had reviewed the
videotape, and defense counsel ―simply advised‖ the court ―of his
intention ‖ to ask the expert about these topics. (Ibid., italics
added)

24
25
26
27
28

While the trial court erroneously relied on Carrillo when it denied
defendant's motion for mistrial, it also made specific findings
about the nature of defendant's case at the time of the mistrial
ruling.
―So far, the defense in this case has been ‗I didn't do
it. It wasn't me.‘ So far. ‗No one can identify me.‘
There has been attacks on the video and the
credibility of whether or not somebody actually can
26

1
2
3

see the defendant do what he's charged with doing.
So first off, he's claiming ‗I didn't do it,‘ at least so
far. And let alone that, ‗I'm not a gang member.‘ If
they find you didn't do it, whether or not there's
gang testimony or not, is irrelevant. It doesn't
matter.‖

4
5
6
7
8
9
10
11
12
13

The court accurately summarized defense counsel's crossexamination of the prosecution's witnesses up to that point. While
defense counsel may have requested jury instructions on heat of
passion, it was not clear whether defendant or any other witness
was going to offer evidence to support the potential theory that the
stabbing constituted an attempted voluntary manslaughter
performed in the heat of passion and for personal reasons because
of the victim's relationship with Echavarria, instead of an
attempted murder of a Sureno, committed in a bar frequented by
Nortenos, for the benefit of the Norteno gang, or even if
defendant's prior relationship with Echavarria contributed to his
motive to commit the offense to benefit the gang.
Based on the record before the trial court, we cannot say that it
abused its discretion when it denied defendant's motion for mistrial
even though it relied on an erroneous interpretation of Carrillo.
The court similarly did not abuse its discretion when it denied
defendant's motion for new trial based on an alleged error of law
when it denied his motion for mistrial.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In reaching this conclusion, we are mindful that a criminal
defendant has the due process right to the assistance of expert
witnesses, if necessary, to prepare his defense. (Ake v. Oklahoma
(1985) 470 U.S. 68, 83 (Ake ); People v. San Nicolas (2004) 34
Cal.4th 614, 661.) ―[A] criminal trial is fundamentally unfair if the
State proceeds against an indigent defendant without making
certain that he has access to the raw materials integral to the
building of an effective defense....‖ (Ake, supra, 470 U.S. at p. 77.)
The constitutional right to the effective assistance of counsel has
been found to provide additional support for the entitlement to
defense experts. (People v. Stuckey (2009) 175 Cal.App.4th 898,
917.) The California Supreme Court has held that ―the right to
counsel guaranteed by both the federal and state Constitutions
includes, and indeed presumes, the right to effective counsel
[citations], and thus also includes the right to reasonably necessary
ancillary defense services. [Citations.]‖ (Corenevsky v. Superior
Court (1984) 36 Cal.3d 307, 319, fns. omitted (Corenevsky );
Mason v. Arizona (9th Cir.1974) 504 F.2d 1345, 1351.)
As we have explained, however, we cannot say that the court's
ruling in this case was prejudicial, based on the nature of the
appellate record. The only evidence about the possible expert
testimony consisted of Hurtado's rather sparse and belatedlyprepared report for discovery purposes. That report failed to
address the crucial issues in this case, particularly whether the
surveillance videotape showed that defendant entered the bar and
associated with other Norteno members; whether they repeatedly
watched the victim's conduct in the bar; and whether defendant
27

stabbed the victim because of his alleged anger about Echavarria.
Thus, given the nature of the appellate record, we cannot find that
the trial court's denial of both the mistrial and new trial motions
were prejudicial.

1
2
3

4 (LD 4 at 40-51).
5

2.

Pertinent Law

6

Petitioner argues that he was denied the meaningful opportunity to introduce relevant

7 evidence in his defense, which is a right guaranteed by the Constitution. See Holmes v. South
8 Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006); Crane v. Kentucky, 476
9 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). If the state courts violated a criminal
10 defendant's right to present witnesses or evidence in his defense, federal habeas relief is available
11 only if the defendant demonstrates that the error had a ―substantial and injurious effect‖ upon the
12 verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S.Ct. 1710, 123 L.Ed.2d 353
13 (1993); Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (harmless-error
14 standard applied in federal habeas review of trial-type errors); Williams v. Stewart, 441 F.3d
15 1030, 1055 (9th Cir.) (as amended) (per curiam) (―[V]iolations of the right to compulsory
16 process are subject to harmless error review.‖), cert. denied, 549 U.S. 1002, 127 S.Ct. 510, 166
17 L.Ed.2d 381 (2006).
18

In subsection (e) of the Criminal Justice Act, 18 U.S.C. § 3006A, Congress has provided

19 that indigent defendants shall receive the assistance of all experts ―necessary for an adequate
20 defense.‖ The Supreme Court has recognized that indigent defendants have a due process right
21 to obtain the assistance of a psychiatrist where a defendant‘s sanity was a ―significant factor at
22 trial.‖ See Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Caldwell
23 v. Mississippi, 472 U.S. 320, 323 n.1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). However, the
24 Supreme Court has not extended that right beyond psychiatrists to other expert witnesses. The
25 Ninth Circuit has also limited Ake to psychiatrists. See Jackson v. Ylst, 921 F.2d 882, 886 (9th
26 Cir. 1990).
27

3.

Analysis

28

Petitioner fails to demonstrate that the California Court of Appeal unreasonably rejected
28

1 this claim. Rather, the trial court's determination that petitioner was not constitutionally entitled
2 to a new trial is amply supported by the record and did not arbitrarily or disproportionately
3 ―infringe upon a weighty interest of the accused,‖ Holmes, 547 U.S. at 324–25, or ―significantly
4 undermine[ ] fundamental elements of [his] defense.‖ See Scheffer, 523 U.S. 303, 315 (1998);
5 Moses, 555 F.3d at 757.
Petitioner proposes extending the Supreme Court‘s holding in Ake to encompass an

6

7 indigent defendant‘s request for the appointment of a defense gang expert. Respondent correctly
8 asserts that there is no clearly established federal law that a defendant is entitled to an expert
9 witness besides a psychiatrist. See Jackson v. Ylst, 921 F.2d at 886.4 However, Petitioner is
10 entitled to meaningful opportunity to present a complete defense.
The Fifth District Court of Appeal reviewed defense counsel‘s efforts in obtaining

11

12 Hurtado as an expert, defense counsel‘s failure to use alternative means to secure Hurtado‘s
13 testimony, defense counsel‘s role and responsibility for Hurtado‘s non-appearance at trial, and
14 the nature of the testimony expected from Hurtado. (LD 4 at 47-51). Based upon that analysis,
15 the Fifth District Court of Appeal held that the trial court did not abuse its discretion when it
16 denied Petitioner‘s motion for a mistrial and the subsequent motion for a new trial. (LD 4 at 5017 51).
This Court finds that it was not error for the trial court to deny Petitioner‘s motion for a

18

19 mistrial and the subsequent motion for new trial. Petitioner‘s counsel had secured Hurtado as an
20 expert early in the case. Although Petitioner‘s trial counsel did not subpoena Hurtado, it is not
21 customary for a party to subpoena his own witnesses. See Dunn, 205 Cal.App.4th at 1096.
22 However, the conflicts between Hurtado and Petitioner‘s counsel over the written report for
23 discovery and the prosecution‘s challenges to Hurtado‘s credibility as an expert and Hurtado‘s
24 busy schedule in December should have alerted Petitioner‘s counsel that a subpoena could be
25 needed for Hurtado. Petitioner‘s counsel turned down the court‘s offer of a short continuance
26 which could have given counsel the opportunity to see if there were other alternatives to Hurtado
27
4

The Court notes that Ake applies to indigent defendants. Upon a review of the state court record, Petitioner was

28 not an indigent defendant. Petitioner had retained his own counsel in state court.
29

1 testifying or if he could convince Hurtado to testify. Petitioner‘s counsel also did not attempt to
2 secure Hurtado‘s testimony by a deposition.

Therefore, Petitioner did not attempt to use

3 alternative means to secure Hurtado‘s testimony and Petitioner was responsible for Hurtado‘s
4 nonappearance.

Therefore, the trial court had not abused its discretion when it denied

5 Petitioner‘s motion for a mistrial and subsequent motion for new trial.
6

Accordingly, the California Court of Appeal‘s rejection of Petitioner‘s claim was not

7 contrary to, or an unreasonable application of clearly established federal law, or an unreasonable
8 determination of the facts in light of the evidence presented in the State court proceeding. Thus,
9 Petitioner is not entitled to habeas relief on this claim.
10

B. Ineffective Assistance of Trial Counsel

11

Petitioner argues that his trial counsel was ineffective because he failed to retain a gang

12 expert to testify at trial. Petitioner asserts that it is the lack of a defense gang expert coupled with
13 the unreasonable factual determination concerning the videotape evidence that creates a violation
14 of clearly established Supreme Court precedent.
Fifth Appellate District‘s Decision

15

1.

16

In the last reasoned state court decision, the Fifth Appellate District stated:

17

The court denied defendant‘s new trial motion for defense
counsel‘s alleged ineffective assistance significantly based on its
belief that the images on the surveillance videotape could not have
been explained any differently if defense counsel had called
Hurtado or another defense expert. On appeal, defendant
speculates that the jury was unable to clearly watch the videotape
during trial and that it likely did not watch the videotape during
deliberations. However, the videotape was played for the jury
during Officer Carsten‘s testimony, and there is no evidence that it
was unable to view the tape during the trial itself.

18
19
20
21
22
23
24
25
26
27
28

Our review of the videotape shows defendant was in the bar with
several other men, whom Officer Carsten identified as Norteno
gang members – Madrid, Cervantez, and the Ruiz brothers. The
men were generally dressed in black or white, with the exception
of one man, identified as Bro, in a red shirt. The bar‘s security
guard testified that Gallegos, the victim, entered the bar with a blue
bandana, and displayed it two more times while he was there.
However, Carsten never testified that the videotape showed the
victim displaying the bandana, and it was not clear whether the
victim‘s head tattoos were visible to defendant and his presumed
associates. There is no evidence that gang slurs or slogans were
shouted before, during, or after the stabbing. While defendant‘s
30

associates assumed various strategic vantage points on and around
the dance floor, they did not surround or restrain the victim before
or during the stabbing. The videotape seems to show that Bro was
closely monitoring Gallegos‘s general location on the dance floor
and defendant‘s movements around the bar, while Madrid stood off
to the side and appeared to watch everyone else. The videotape
showed that defendant walked up and stabbed the victim in the
back, by himself and without assistance, and then he ran away by
himself. His associates resumed their positions in the bar, and they
were still there when the police arrived.

1
2
3
4
5
6

The court denied the new trial motion and held it was up to the jury
to determine whether the stabbing was gang-related, that Officer
Carsten only offered his opinion and speculation about what was
depicted on the videotape, and ―the jurors can make that decision
by looking at the video and listening to the testimony.‖ In making
this ruling, however, the court ignored the possibility that while a
defense expert would have likely addressed the same factual issues
discussed by Carsten, an expert might have offered different
opinions from the facts and circumstances of the stabbing.

7
8
9
10
11

The record in this case raises several concerns about defense
counsel‘s conduct after Hurtado resigned, particularly his failure to
request a continuance or accept the court‘s offer of a ―short‖
continuance. However, ―a court need not determine whether
counsel‘s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies,‖ and in many cases, an ineffective assistance claim
may be disposed of ―on the ground of lack of sufficient prejudice.‖
(Strickland, supra, 466 U.S. at p. 697.) Defendant ―must carry his
burden of proving prejudice as a ‗demonstrable reality,‘ not simply
speculation as to the effect of the errors or omissions of counsel.
[Citation.]‖ (People v. Williams (1988) 44 Cal.3d 883, 937.)

12
13
14
15
16
17

Even if defense counsel was ineffective for failing to take various
steps after Hurtado resigned, we cannot conclude that defendant
was prejudiced or that the testimony of any other gang expert
would have affected the verdict, based on the appellate record
before this court. While defendant's motion for new trial alleged
ineffective assistance, his motion was not supported by any
declarations or exhibits that would have demonstrated the possible
prejudice from defense counsel's failure to make any attempt to
secure another expert during trial. Defendant failed to establish
trial counsel could have presented a defense expert who would
have provided favorable testimony to refute Officer Carsten's
opinions about the crucial aspects of the stabbing, or that the offer
of a short continuance was inadequate. It would be ―simply
speculation‖ to find a reasonable probability that the defendant
would have obtained a more favorable result.

18
19
20
21
22
23
24
25
26 (LD 4).
27

2.

Pertinent Law

28

The clearly established federal law governing ineffective assistance of counsel claims is
31

1 Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging
2 ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at
3 687. First, the petitioner must show that counsel's performance was deficient, requiring a
4 showing that counsel made errors so serious that he or she was not functioning as the ―counsel‖
5 guaranteed by the Sixth Amendment. Id. at 687. The petitioner must show that counsel‘s
6 representation fell below an objective standard of reasonableness, and must identify counsel‘s
7 alleged acts or omissions that were not the result of reasonable professional judgment
8 considering the circumstances. Richter, 562 U.S. at 105 (―The question is whether an attorney‘s
9 representation amounted to incompetence under ―prevailing professional norms,‖ not whether it
10 deviated from best practices or most common custom.‖) (citing Strickland, 466 U.S. at 688).
11 Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong
12 presumption that counsel's conduct falls within the wide range of reasonable professional
13 assistance. Strickland, 466 U.S. at 687; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
14 A reviewing court should make every effort ―to eliminate the distorting effects of hindsight, to
15 reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from
16 counsel‘s perspective at that time.‖ Strickland, 466 U.S. at 669.
17

Second, the petitioner must show that there is a reasonable probability that, but for

18 counsel‘s unprofessional errors, the result would have been different. It is not enough ―‗to show
19 that the errors had some conceivable effect on the outcome of the proceeding.‘‖ Richter, 131
20 S.Ct. at 787 (internal citation omitted). A reviewing court may review the prejudice prong first.
21 See Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697)
22 (holding that a court may dispose of an ineffective assistance of counsel claim on the ground of
23 lack of sufficient prejudice before determining whether counsel‘s performance was deficient).
24

In effect, the AEDPA standard is ―doubly deferential‖ because it requires that it be shown

25 not only that the state court determination was erroneous, but also that it was objectively
26 unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland
27 standard is a general standard, a state court has even more latitude to reasonably determine that a
28 defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)
32

1 (―[E]valuating whether a rule application was unreasonable requires considering the rule‘s
2 specificity. The more general the rule, the more leeway courts have in reaching outcomes in
3 case-by-case determinations.‖).
4

3.

5

Initially, the Court notes that the Fresno County Superior Court expressly applied

Analysis

6 Strickland—the correct federal standard—to Petitioner‘s contentions regarding his counsel's
7 performance. Hence, the only question is whether, having applied the correct test, the state
8 court‘s application of Strickland was objectively unreasonable. Schriro v. Landrigan, 550 U.S. at
9 473. The Court concludes that it was not, and therefore, the claim must be denied.
10

Petitioner argues that the video was silent and that the jury could not actually see the

11 videotape as part of his argument why his counsel‘s failure to present a gang expert prejudiced
12 him.

Petitioner‘s argument is that there was an unreasonable factual determination about

13 whether the jury viewed the videotape. ―Factual determinations by state courts are presumed
14 correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision
15 adjudicated on the merits in a state court and based on a factual determination will not be
16 overturned on factual grounds unless objectively unreasonable in light of the evidence presented
17 in the state-court proceeding.‖ Miller-El, 537 U.S. at 340 (internal citations omitted).
18

As the Court of Appeal noted, the jury watched the videotape during Officer Carsten‘s

19 testimony and there is no evidence that the jury was unable to see the videotape. Although the
20 trial court made comments about the jury‘s ability to view the videotape at times during trial, the
21 trial court did not state that the jury could not view the videotape when it was played during
22 Officer Carsten‘s testimony. (RT 364-386). The Court also notes that the jury viewed the video
23 during the prosecutor‘s closing. (RT 620-632). In fact, at one point during the prosecutor‘s
24 closing argument, the trial judge said, ―If any of you folks up here want to move down here so
25 you can be closer feel, free to do that.‖ (RT 622:24-26). Upon a review of the record, it is clear
26 that the jury viewed the videotape during both Officer Carsten‘s testimony and the prosecutor‘s
27 closing argument. Therefore, the jury did watch the videotape and there is no error in the Court
28 of Appeal‘s factual determination that the jury watched the videotape.
33

1

Even if the Court assumes that the jury did not view the videotape during deliberations,

2 Petitioner has not shown that the California Court of Appeal‘s decision was unreasonable
3 because Petitioner has not shown that he suffered prejudice by his trial counsel‘s failure to call
4 Hurtado or another gang expert. Petitioner asserts that the only witness testimony that the attack
5 was for the benefit of a gang was by the prosecution‘s expert witness, Officer Carsten, and that
6 the trial court estopped Petitioner from presenting expert testimony that this crime was not
7 committed for a gang. Petitioner argues that his own testimony was empathic that he was not a
8 gang member and that the attack was motivated by jealousness. The Court finds that the Fifth
9 Appellate District‘s decision that ―It would be ―simply speculation‖ to find a reasonable
10 probability that the defendant would have obtained a more favorable result‖ is not unreasonable
11 and that the decision to deny Petitioner‘s claim is not unreasonable.
12

In finding that Petitioner did not suffer any prejudice from Petitioner‘s failure to call a

13 gang expert, the Fifth Appellate District stated:
14

While defendant's motion for new trial alleged ineffective
assistance, his motion was not supported by any declarations or
exhibits that would have demonstrated the possible prejudice from
defense counsel‘s failure to make any attempt to secure another
expert during trial. Defendant failed to establish trial counsel could
have presented a defense expert who would have provided
favorable testimony to refute Officer Carsten's opinions about the
crucial aspects of the stabbing, or that the offer of a short
continuance was inadequate.

15
16
17
18
19 (LD 4 at 56).
20

As stated above, there is no evidence that Petitioner could have presented a defense gang

21 expert who could have provided favorable testimony to Petitioner. Petitioner has not shown that
22 he could have presented a defense expert who would have refuted Officer Carsten‘s testimony
23 about the stabbing. Petitioner has not presented any evidence that his defense counsel could
24 have convinced Hurtado to return or that there was another gang expert who was available to
25 testify at trial and that would have done so.

Petitioner‘s claims are merely speculation.

26 Furthermore, Petitioner‘s trial counsel effectively cross-examined Officer Carsten and the jury
27 had the opportunity to evaluate the video evidence and the testimony of the witnesses for both
28 the prosecution and the defense.
34

1

Based on the foregoing, the Court finds that the California court's rejection of Petitioner's

2 claim was neither contrary to, nor involved an unreasonable application of, clearly established
3 federal law, as determined by the United States Supreme Court. Thus, habeas relief is not
4 warranted on this claim.
5

C. Instructional Error

6

Petitioner claims that the trial court violated his due process and fair trial rights by

7 including the phrase ―gang-related crime‖ in the CALCRIM No. 1403 jury instruction when he
8 only charged with a gang enhancement. He also claims that the instruction directed the jury to
9 find that attempted murder was a gang-related crime and that the instruction infected the entire
10 trial so that his due process rights were violated.
11

The Fifth District Court of Appeal found that Petitioner forfeited his claim of

12 instructional error because he failed to ―object to the version of CALCRIM No. 1403 given by
13 the court or ask the court to modify the instructional language.‖ Therefore, Petitioner has
14 procedurally defaulted this claim because of the contemporaneous objection rule. See Coleman
15 v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, the
16 Fifth District Court of Appeal also addressed the merits of the claim and, therefore, this Court
17 will address the merits of the claim.
18

1. Court of Appeal‘s Decision

19

The Fifth District Court of Appeal held that:

20
21
22
23
24
25
26
27
28

Defendant raises a second issue about CALCRIM No. 1403, based
on the court‘s selection of certain optional language in the first
paragraph, as provided by the pattern instruction. The pattern
instruction for CALCRIM No. 1403 offers the following options
for the first paragraph, as italicized below:
―You may consider evidence of gang activity only for the limited
purpose of
deciding whether: [¶] [The defendant acted with the intent,
purpose, and knowledge
that are required to prove the gang-related (crime[s]/ [and]
enhancement[s]/ [and]
special circumstance allegations) charged(;/.)] .…‖ (Italics added.)
As set forth ante, the court read the first paragraph of CALCRIM
No. 1403 to the jury as follows: ―You must consider or you may
consider evidence of gang activity only for the limited purpose of
35

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5
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25
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28

deciding whether the defendant acted with the intent, purpose, and
knowledge that are required to prove the gang-related crime and
enhancements charged or the defendant had a motive to commit
the crime charged.‖ (Italics added.)
Defendant cites to the phrase ―the gang-related crime,‖ as italicized
ante, and argues the court erroneously used this phrase when it
read CALCRIM No. 1403 to the jury in this case. Defendant notes
that the disputed issue was whether the charged substantive offense
of attempted murder was a gang-related crime. Defendant argues
that when the court used the phrase ―gang-related crime‖ in
CALCRIM No. 1403‘s first paragraph, it essentially directed the
jury to find that the charged offense of attempted murder was a
gang-related crime, and that the jury did not have to address or
consider that disputed issue.
Defendant asserts that the phrase ―gang-related crime‖ should only
be used when a party is charged with the gang substantive offense
pursuant to [California Penal Code] section 186.22, subdivision (a),
which was not alleged in this case. Defendant further asserts that
the court should have instructed the jury that it could consider the
gang evidence for the proof of the gang-related enhancement,
which would have accurately described the charges in this case.
As with his other instructional issues, defendant did not object to
the version of CALCRIM No. 1403 given by the court or ask the
court to modify the instructional language. (Hernandez, supra, 33
Cal.4th at p. 1051.) ―Generally, ‗―[a] party may not complain on
appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.‖ ‘
[Citations.]‖ (Samaniego, supra, 172 Cal.App.4th at p.1163.)
Having failed to do so, he has forfeited review of this issue.
In any event, we find it is not reasonably likely the jury interpreted
the instruction in the manner suggested by defendant. ―Motive is
always relevant in a criminal prosecution.‖ (People v. Perez (1974)
42 Cal.App.3d 760, 767.) Gang evidence is relevant and
admissible ―when the very reason for the underlying crime, that is
the motive, is gang related. [Citation.]‖ (Samaniego, supra, 172
Cal.App.4th at p. 1167, italics added.) Aside from allegations of
the gang enhancement, evidence of a defendant‘s gang membership
and activity may be separately relevant to his motive and intent for
committing the charged substantive offense against a rival or
suspected rival (People v. Funes (1994) 23 Cal.App.4th 1506,
1517-1519; People v. Williams (1997) 16 Cal.4th 153, 193-194); or
when criminal activity has been preceded by gang signs or
identification (People v. Villegas (2001) 92 Cal.App.4th 1217,
1222, 1224).
In this case, the court properly admitted the gang evidence as
relevant and probative for the [California Penal Code] section
186.22, subdivision (b) gang enhancement, and also for
defendant‘s motive and intent to commit the charged offense of
attempted murder. The prosecution‘s theory of the case was that
36

1
2
3
4
5
6
7
8
9
10
11
12

defendant was guilty of attempted murder and not some lesser
offense, based on evidence that defendant was a Norteno, he was at
the bar with other Nortenos, they saw Gallegos enter the bar,
Gallegos showed the blue bandana and had Sureno tattoos, and
defendant attempted to murder Gallegos because of the gang
rivalry and to gain respect from the Nortenos. While defendant
admitted that he stabbed Gallegos, he testified that he was upset
because of his prior relationship with Echavarria, he knew he was
too intoxicated to fight with Gallegos, and he decided to stab him
instead. Defense counsel argued that defendant was not guilty of
attempted murder but might be guilty of attempted voluntary
manslaughter because he acted in the heat of passion, while he was
drunk, when he saw Echavarria with Gallegos.
The gang evidence was thus relevant to establish defendant‘s
motive and intent to murder Gallegos because of the
Norteno/Sureno gang rivalry, and not because he was upset that
Gallegos was there with a former girlfriend. The gang evidence
was also relevant and admissible to prove the elements of the gang
enhancement. Given the dual relevancy of the evidence, the court
did not commit error when it instructed the jury that it could
consider the gang evidence to determine whether defendant
committed ―the gang-related crime and enhancements charged or
the defendant had a motive to commit the crime charged.‖

13
14 (LD 4 at 7173).
15

2. Pertinent Law

16

Petitioner‘s claim that a jury instruction was incorrect under state law does not state a

17 cognizable claim in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112
18 S.Ct. 475, 116 L.Ed.2d 385 (1991) (―[W]e reemphasize that it is not the province of a federal
19 habeas court to reexamine state-court determinations on state-law questions.‖); Lincoln v. Sunn,
20 807 F.2d 805, 816 (9th Cir. 1987) (―Incorrect state court evidentiary rulings cannot serve as a
21 basis for habeas relief unless federal constitutional rights are affected.‖).
22

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that

23 the ailing instruction by itself so infected the entire trial that the resulting conviction violates due
24 process. Estelle, 502 U.S. at 72. Additionally, the instruction may not be judged in artificial
25 isolation, but must be considered in the context of the instructions as a whole and the trial record.
26 Id. The Court must evaluate jury instructions in the context of the overall charge to the jury as a
27 component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169, 102 S.Ct.
28 1584, 71 L.Ed.2d 816 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52
37

1 L.Ed.2d 203 (1977)).
2

Furthermore, even if it is determined that the instruction violated the petitioner's right to

3 due process, a petitioner can only obtain relief if the unconstitutional instruction had a substantial
4 influence on the conviction and thereby resulted in actual prejudice under Brecht, 507 U.S. at
5 637. See Hanna v. Riveland, 87 F.3d 1034, 1039 (9th Cir. 1996). The burden of demonstrating
6 that an erroneous instruction was so prejudicial that it will support a collateral attack on the
7 constitutional validity of a state court's judgment is even greater than the showing required to
8 establish plain error on direct appeal.‖ Id.
9
10

3. Analysis
Petitioner argues that it was reasonably likely that the jury understood the instruction,

11 especially in the context of the jury charge as a whole, to mean that the attempted murder was a
12 gang crime as a matter of law, and therefore, there was a directed verdict. Respondent argues
13 that the gang evidence in Petitioner‘s case was relevant to prove not only the elements of the
14 gang enhancement, but also Petitioner‘s motive and intent for attempting to murder the victim.
15
16
17
18

At the conclusion of the evidence, the jury was told:
Some of these instructions may not apply, depending on your
findings about the facts of the case. Do not assume just because I
give a particular instruction that I am suggesting anything about
the facts. After you have decided what the facts are, follow the
instructions that do apply to the facts as you find them.

19 (RT 587:18-23).
20

The jury was instructed the jury that, ―Unless the evidence proves the defendant guilty

21 beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty. (RT
22 589:26-590:2). The following modified version of CALCRIM No. 1403 was read to the jury:
23
24
25

You must consider or you may consider evidence of gang activity
only for the limited purpose of deciding whether the defendant
acted with the intent, purpose, and knowledge that are required to
prove the gang-related crime and enhancements charged or the
defendant had a motive to commit the crime charged.

26 (RT 608:5-11).
27

To prove attempted murder, the prosecution was required to show that Petitioner had the

28 specific intent to kill and committed a direct but ineffectual act toward accomplishing the
38

1 intended killing. People v. Lee, 31 Cal.4th 613, 623, 3 Cal.Rptr.3d 402, 74 P.3d 176 (2003)
2 (citations omitted). Since there is rarely direct evidence of a defendant's intent, it ―must usually
3 be derived from all the circumstances of the attempt, including the defendant's actions.‖ People
4 v. Chinchilla, 52 Cal.App.4th 683, 690, 60 Cal.Rptr.2d 761 (1997).
5

Evidence was presented at trial that Petitioner saw the victim in the bar, walked toward

6 the victim, took the box cutter out of his pocket, and stabbed the victim in the back of his head
7 and neck. The jury logically relied on these facts, not gang evidence, to find intent to kill the
8 victim. The evidence reasonably supports the inference that Petitioner harbored the specific
9 intent to kill the victim. Based on the considerable evidence of intent to kill in this case, there is
10 no reason to believe that the instructional error had a substantial and injurious effect on
11 Petitioner's trial or the jury‘s verdict.
12

The Court finds that the California state courts‘ rejection of Petitioner‘s claim was neither

13 contrary to, nor involved an unreasonable application of, clearly established federal law, nor was
14 it based on an unreasonable determination of the facts. Thus, Petitioner is not entitled to habeas
15 relief and the petition for writ of habeas corpus is denied.
16

D.

17

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

Certificate of Appealability

18 district court‘s denial of his petition, and an appeal is only allowed in certain circumstances.
19 Miller-El, 537 U.S. at 335-36.

The controlling statute in determining whether to issue a

20 certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
21
22
23
24
25
26
27
28

(a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which
the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of
such person‘s detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from–
39

2

(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by
a State court; or

3

(B) the final order in a proceeding under section 2255.

4

(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.

1

5

(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).

6
7
8

If a court denies a petitioner‘s petition, the court may only issue a certificate of

9 appealability ―if jurists of reason could disagree with the district court‘s resolution of his
10 constitutional claims or that jurists could conclude the issues presented are adequate to deserve
11 encouragement to proceed further.‖ Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S.
12 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must
13 demonstrate ―something more than the absence of frivolity or the existence of mere good faith on
14 his . . . part.‖ Miller-El, 537 U.S. at 338.
15

In the present case, the Court finds that reasonable jurists would not find the Court‘s

16 determination that Petitioner‘s petition should be denied debatable, wrong, or deserving of
17 encouragement to proceed further. Petitioner has not made the required substantial showing of
18 the denial of a constitutional right. Accordingly, the Court hereby declines to issue a certificate
19 of appealability.
20 \ \ \
21 \ \ \
22 \ \ \
23 \ \ \
24 \ \ \
25 \ \ \
26 \ \ \
27 \ \ \
28 \ \ \
40

1

IV.

2

ORDER

3

Based on the foregoing, IT IS HEREBY ORDERED that:

4

1) The petition for writ of habeas corpus is DENIED;

5

2) The Clerk of Court is DIRECTED to close the case; and

6

3) The Court DECLINES to issue a certificate of appealability.

7
8

IT IS SO ORDERED.

9 Dated:

February 8, 2016
UNITED STATES MAGISTRATE JUDGE

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