“It is not enough that a federal habeas court, 7 in its ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state 8 court was ‘“erroneous”’”
How later courts described this case
- “It is not enough that a federal habeas court, 7 in its ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state 8 court was ‘“erroneous”’”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DANIEL CARRANZA, No. 2:21-cv-0304 TLN KJN P
12 Petitioner,
13 v. FINDINGS & RECOMMENDATIONS
14 JEFF LYNCH,
15 Respondent.
16
17 I. Introduction
18 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of
19 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his June 2017 conviction for
20 attempted premeditated murder and assault with a deadly weapon. Petitioner was sentenced to 11
21 years to life in state prison. Petitioner claims that the trial court violated his Fourteenth
22 Amendment due process rights by admitting inadmissible evidence of his gang membership.
23 After careful review of the record, this court concludes that the petition should be denied.
24 II. Procedural History
25 Petitioner was charged with attempted premeditated murder (California Penal Code
26 §§ 187, subd. (a) & 664, subd.(a)) and assault with a deadly weapon (California Penal Code
27 § 245, subd. (a)(1)). (ECF No. 12-3 at 8-10.) For the attempted murder charge, petitioner was
28 alleged to have used a knife. (Id.) For both charges, petitioner was alleged to have personally
1 inflicted great bodily injury and committed the crimes for the benefit of a criminal street gang.
2 (Id.) During the first trial, a jury convicted petitioner of assault with a deadly weapon and found
3 true the great bodily injury enhancement. (Id. at 213.) The jury was unable to reach a verdict on
4 the attempted murder charge and found the gang enhancement not true. (Id.) The trial court
5 declared a mistrial as to the attempted murder charge. Petitioner was retried on that charge.
6 During his retrial, a second jury convicted petitioner of attempted murder and found as true the
7 following enhancements: the attempt was willful, deliberate, and premeditated; petitioner
8 personally used a knife; and petitioner personally inflicted great bodily injury. (ECF No. 12-4 at
9 93-95.) On August 1, 2017, petitioner was sentenced to 11 years to life in state prison. (Id. at 99-
10 101.)
11 Petitioner appealed the conviction to the California Court of Appeal, First Appellate
12 District. The Court of Appeal affirmed the conviction on November 6, 2019. (ECF No. 12-9.)
13 Petitioner filed a petition for review in the California Supreme Court, which the court
14 denied on February 11, 2020. (Id.)
15 Petitioner filed the instant petition on January 3, 2021. (ECF No. 1.) Respondent filed an
16 answer on May 25, 2021. (ECF No. 12.) Petitioner did not file a traverse.
17 III. Facts1
18 After independently reviewing the record, this court finds the appellate court’s summary
19 accurate and adopts it herein. In its unpublished memorandum and opinion affirming petitioner’s
20 judgment of conviction on appeal, the California Court of Appeal for the First Appellate District
21 provided the following factual summary:
22 In November 2014, the victim, Ivan Fraire, worked at a factory in
Vacaville. On the night of November 26, as Fraire worked at a
23 machine press, he was stabbed from behind. He turned and saw the
assailant, who was wearing a red shirt; he had previously seen the
24 man two or three times at the factory. Indeed, Fraire had greeted his
assailant while coming back from break about 30 minutes before the
25 attack. Fraire was stabbed in the abdomen, chest, and arm before the
attacker ran away. Fraire appeared to have lost at least 40 percent of
26
27 1 The facts are taken from the opinion of the California Court of Appeal for the First Appellate
District in People v. Carranza, No. A152211, 2019 WL 5867435 (Nov. 6, 2019), a copy of which
28 was lodged by respondent as ECF No. 12-9.
1 his blood by the time he reached the hospital. His wounds were
consistent with being stabbed by a large knife, and he would have
2 died without medical attention.
3 Before being taken to the hospital, Fraire told his supervisor, his
father (who also worked at the factory), and a police officer that his
4 attacker was wearing a red shirt. He also told the officer the attacker
was a Hispanic male co-worker. He told another officer at the
5 hospital that the assailant was a Hispanic male with a shaved head
wearing a red shirt. At trial, Fraire identified appellant as his attacker,
6 although he had been unable to identify appellant in a photographic
lineup while he was in the hospital. Fraire did on that occasion
7 identify a photograph of appellant taken from Facebook as his
attacker, but the photograph was one Fraire’s mother showed him,
8 not one of the photographs in the lineup.
9 On the night of the stabbing, other employees reported seeing
appellant at work wearing a red or maroon 49er’s sweatshirt or
10 sweater, a red shirt or hoodie, and a red belt. On the night of the
stabbing, appellant’s supervisor saw appellant with a 12- to 15-inch
11 knife—he described it as a machete. Appellant’s job required him to
cut cardboard, but he previously had done so with a folding knife
12 with a three-inch blade. The supervisor had never seen the sort of
long knife appellant had at the factory, and he told appellant to put
13 the knife in his car.
14 On the evening of November 26, 2014, shortly after a meal break,
appellant left his work station and walked towards the bathroom. At
15 around 10:30 p.m., after appellant had been gone for between five
and 20 minutes, his co-workers heard a commotion in the factory that
16 turned out to be due to the stabbing. Appellant never returned to work
and never punched out of work; he was the only employee
17 unaccounted for.3
18 [N.3 During trial, appellant presented testimony from a factory
employee who testified he saw a nervous-looking man who he did
19 not recognize in the bathroom shortly before the stabbing. The man
was wearing a blue jacket.]
20
On December 3, 2014, appellant received a text message from
21 someone named “Jaky,” who commented that she was “on the run.”
Appellant responded, “Yeah. Am on the run too. That’s crazy.” Jaky
22 asked appellant why and appellant responded, “Some hot shit, feel
me. I can’t tok [sic] about, feel?” Appellant was arrested on
23 December 10 during a traffic stop.
24 Gang Evidence
25 Gang expert Detective Erik Watts testified generally about Norteño
and Sureño gangs, explaining their historical origins as prison gangs
26 and their areas of geographic predominance. Members display gang
pride through clothing and tattoos. Norteños wear red clothing, while
27 Sureños wear blue.
28 The victim, Fraire, admitted he had been a member of a Vacaville
1 Sureño street gang (the “Brown Pride Sureños”), but he said he left
the gang two years before the stabbing. The gang’s color was blue,
2 and the gang’s enemies were the Norteños, who claimed the color
red. Fraire had several gang tattoos, including the words “Brown”
3 and “Pride,” one on each hand. He also on his right hand had the
tattoo “BPS,” for Brown Pride Sureños, a tattoo of one dot next to
4 three dots, which is also associated with the Sureños. Those tattoos
were covered by gloves while he was operating machines in the
5 factory, but not when he entered or left the factory, clocked in or out,
during breaks, or when he went to the bathroom. On the night of the
6 stabbing, Fraire was wearing a blue jumpsuit, a blue tank top, and
blue shorts.
7
Detective Watts opined appellant was a member of a Vacaville
8 Norteño criminal street gang called the Brown Street Locos. The
testimony was based on appellant’s admission to being a Norteño
9 member during a traffic stop in 2011, appellant’s red clothing and
various tattoos, photographs on appellant’s phone, and appellant’s
10 association with a person with a “Brown Street Locs” tattoo.
11 Detective Watts also testified about gang culture with respect to
attacks between members of different gangs. Committing crimes is
12 considered “putting in work” for the gang, and the more work a gang
member puts in, the higher his status within the gang
13 becomes. Attacking a rival gang member would be considered high
status “work;” Watts commented, “you’ll be more respected because
14 you’re fighting the enemy.” Among other tattoos, appellant had the
word “active” tattooed on his right hand; gang members used that
15 word to indicate they were actively committing crimes to “climb the
ranks” in the gang. Watts had investigated violent attacks between
16 Norteño and Sureño gang members and just being a member of a
rival gang was enough to provoke a violent attack. Brown Street
17 Locos members regard all Sureños as their enemies.
18 (ECF No. 12-9 at 153-55.)
19 IV. Standards for a Writ of Habeas Corpus
20 An application for a writ of habeas corpus by a person in custody under a judgment of a
21 state court can be granted only for violations of the Constitution or laws or treaties of the United
22 States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation
23 or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire,
24 502 U.S. 62, 67-68 (1991).
25 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
26 corpus relief:
27 An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
28 with respect to any claim that was adjudicated on the merits in State
1 court proceedings unless the adjudication of the claim -
2 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
3 determined by the Supreme Court of the United States; or
4 (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
5 State court proceeding.
6 28 U.S.C. § 2254(d).
7 For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of
8 holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v.
9 Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 38, 44-45
10 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S.
11 362, 412 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly
12 established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859
13 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may
14 not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a
15 specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.
16 Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)).
17 Nor may it be used to “determine whether a particular rule of law is so widely accepted among
18 the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct.”
19 Id. Further, where courts of appeals have diverged in their treatment of an issue, there is no
20 “clearly established federal law” governing that issue. See Carey v. Musladin, 549 U.S. 70, 77
21 (2006).
22 A state court decision is “contrary to” clearly established federal law if it applies a rule
23 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
24 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
25 Under the “unreasonable application” clause of § 2254(d)(1), “a federal habeas court may grant
26 the writ if the state court identifies the correct governing legal principle from [the Supreme
27 Court’s] decisions, but unreasonably applies that principle to the facts of the prisoner’s case.”2
28 2 Under § 2254(d)(2), a state court decision based on a factual determination is not to be
1 Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413; see also Chia v.
2 Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, “a federal habeas court may not issue
3 the writ simply because that court concludes in its independent judgment that the relevant state-
4 court decision applied clearly established federal law erroneously or incorrectly. Rather, that
5 application must also be unreasonable.” Williams, 529 U.S. at 411; see also Schriro v. Landrigan,
6 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not enough that a federal habeas court,
7 in its ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state
8 court was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes
9 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
10 court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
11 Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus
12 from a federal court, a state prisoner must show that the state court’s ruling on the claim being
13 presented in federal court was so lacking in justification that there was an error well understood
14 and comprehended in existing law beyond any possibility for fair-minded disagreement.” Id. at
15 103.
16 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
17 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,
18 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
19 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of
20 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by
21 considering de novo the constitutional issues raised.”).
22 The court looks to the last reasoned state court decision as the basis for the state court
23 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
24 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a
25 previous state court decision, this court may consider both decisions to ascertain the reasoning of
26
27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
28 384 F.3d 628, 638 (9th Cir. 2004)).
1 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a
2 federal claim has been presented to a state court and the state court has denied relief, it may be
3 presumed that the state court adjudicated the claim on the merits in the absence of any indication
4 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption
5 may be overcome by a showing “there is reason to think some other explanation for the state
6 court’s decision is more likely.” Id. at 99-100. Similarly, when a state court decision on
7 petitioner’s claims rejects some claims but does not expressly address a federal claim, a federal
8 habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the
9 merits. Johnson v. Williams, 568 U.S. 289, 298-301 (2013) (citing Richter, 562 U.S. at 98). If a
10 state court fails to adjudicate a component of the petitioner’s federal claim, the component is
11 reviewed de novo in federal court. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003).
12 Where the state court reaches a decision on the merits but provides no reasoning to
13 support its conclusion, a federal habeas court independently reviews the record to determine
14 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
15 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
16 review of the constitutional issue, but rather, the only method by which we can determine whether
17 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
18 reasoned decision is available, the habeas petitioner has the burden of “showing there was no
19 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
20 A summary denial is presumed to be a denial on the merits of the petitioner’s claims.
21 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze
22 just what the state court did when it issued a summary denial, the federal court reviews the state
23 court record to “determine what arguments or theories . . . could have supported the state court’s
24 decision; and then it must ask whether it is possible fairminded jurists could disagree that those
25 arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]
26 Court.” Richter, 562 U.S. at 101. It remains the petitioner’s burden to demonstrate that ‘there
27 was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939
28 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
1 When it is clear, however, that a state court has not reached the merits of a petitioner’s
2 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
3 habeas court must review the claim de novo. Stanley, 633 F.3d at 860 (citing Reynoso v.
4 Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)).
5 V. Petitioner’s Claim
6 Petitioner asserts that the trial court abused its discretion by admitting evidence of
7 petitioner’s criminal street gang membership for three reasons. First, the prior bad acts were not
8 sufficiently similar to the charged offense and constitutes inadmissible propensity evidence under
9 Evidence Code § 1101. (ECF No. 1 at 20.) Second, the evidence was more prejudicial than
10 probative under Evidence Code § 352. (Id.) Lastly, this evidence made his trial fundamentally
11 unfair. (Id.)
12 In response, respondent argues that the state court reasonably concluded that the
13 admission of gang evidence did not violate his due process rights. (ECF No. 12-1.)
14 In a well-reasoned opinion, the state appellate court rejected petitioner’s claim on direct
15 appeal.
16 Appellant contends the trial court erred in admitting evidence that
appellant and Fraire were current and former members of rival
17 Norteño and Sureño gangs, and that rival gang members attack each
other without provocation. The trial court did not abuse its discretion.
18
Prior to the second trial, the prosecutor moved in limine to admit
19 “evidence of [appellant’s] gang membership and testimony of a gang
expert regarding the sociology and psychology of gang behavior for
20 purposes of establishing motive and intent.” Appellant’s counsel
moved to exclude all gang-related evidence. The trial court ruled the
21 prosecution would be permitted to use other gang-related evidence
to prove motive and intent unless it was unduly prejudicial. The court
22 excluded as unduly prejudicial evidence that appellant assaulted a
Sureño gang member in juvenile hall. At trial the court instructed the
23 jury pursuant to CALCRIM No. 375 that it could consider “evidence
of behavior by the defendant involving gang activity ... for the
24 limited purpose of deciding whether: [¶] The defendant acted with
the intent to kill; or [¶] The defendant had a motive to commit the
25 offenses alleged in this case. [¶] Do not consider this evidence for
any other purpose. [¶] Do not conclude from this evidence that the
26 defendant has a bad character or is disposed to commit crime.” The
court also instructed the jury pursuant to CALCRIM No. 303 that,
27 “During the trial, certain evidence was admitted for a limited
purpose. You may consider that evidence only for that purpose and
28 for no other.”
1 Evidence Code section 1101, subdivision (a), provides that
“evidence of a person’s character or a trait of his or her character
2 (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible
3 when offered to prove his or her conduct on a specified occasion.”
(See also People v. Ewoldt (1994) 7 Cal.4th 380, 393.) However,
4 “this rule does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some fact
5 other than the person’s character or disposition.” (Ewoldt, at p. 393.)
That is because Evidence Code, section 1101, subdivision
6 (b) permits “the admission of evidence that a person committed a
crime, civil wrong, or other act when relevant to prove some fact
7 (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident ...) other than his or her
8 disposition to commit such an act.” If evidence is relevant to prove a
fact such as intent or motive, “the trial court then must consider
9 whether the probative value of the evidence ‘is “substantially
outweighed by the probability that its admission [would] ... create
10 substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.)’ ” [Citation.] ‘Rulings
11 made under [sections 1101 and 352] are reviewed for an abuse of
discretion. [Citation.]’ [Citation.] ‘Under the abuse of discretion
12 standard, “a trial court’s ruling will not be disturbed, and reversal ...
is not required, unless the trial court exercised its discretion in an
13 arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” ’ ” (People v. Foster (2010) 50
14 Cal.4th 1301, 1328–1329.)
15 “In general, ‘[t]he People are entitled to “introduce evidence of gang
affiliation and activity where such evidence is relevant to an issue of
16 motive or intent.” [Citation.]’ [Citation.] ‘[E]ven where gang
membership is relevant,’ however, ‘because it may have a highly
17 inflammatory impact on the jury trial courts should carefully
scrutinize such evidence before admitting it.’ [Citation.] On the other
18 hand, ‘ “[b]ecause a motive is ordinarily the incentive for criminal
behavior, its probative value generally exceeds its prejudicial effect,
19 and wide latitude is permitted in admitting evidence of its existence.”
’ ” (People v. McKinnon (2011) 52 Cal.4th 610, 655.)
20
In the present case, the evidence that appellant had reason to attack
21 the victim Fraire as a perceived rival gang member provided a motive
for appellant to engage in the otherwise unprovoked, inexplicable
22 assault.4 Appellant’s primary contention on appeal is that there was
insufficient evidence that the attack had a nexus to appellant’s gang
23 membership to support an inference regarding his motive and intent.
He argues, “there was virtually nothing about the circumstances of
24 the assault ... that suggested it was gang-related.” We disagree.
Although the assailant did not “call[ ] out a gang name, display[ ]
25 gang signs or otherwise state[ ] his gang affiliation” (People v.
Rios (2013) 222 Cal.App.4th 542, 574),5 the evidence showed the
26 attacker was thoroughly dressed in red, while Fraire was thoroughly
dressed in blue. The evidence also showed there was ample
27 opportunity for a co-worker to have noticed Fraire’s Sureño-
associated tattoos on his hands. Although the jury in the first trial did
28 not find the prosecution had proven the gang-relatedness of the
1 assault beyond a reasonable doubt, that did not obligate the trial court
to conclude there was insufficient evidence to support admission of
2 the gang evidence to show motive and intent for the attack. Indeed,
the otherwise inexplicable nature of the attack increased the
3 plausibility of the gang motive and decreased the quantum of
evidence necessary to show a “direct logical nexus” (People v.
4 Demetrulias (2006) 39 Cal.4th 1, 15) between the gang evidence and
the stabbing. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539,
5 1551 [“The law does not disfavor the admission of expert testimony
that makes comprehensible and logical that which is otherwise
6 inexplicable and incredible.”].) The evidence of the gang rivalry was
also relevant to showing intent to kill.
7
[N.4 The circumstance that Fraire was a former gang member is not
8 significant given that his tattoos and clothing would have given a
rival gang member reason believe he was still associated with the
9 Sureños. (See People v. Williams (1997) 16 Cal.4th 153,
194 [“defendant’s alleged motive to kill Crips was just as arguable
10 on facts suggesting (as they did) that the victim was dressed like a
Crip when he was shot, as it would have been on facts suggesting he
11 actually was a Crip”].)]
12 [N.5 Respondent argues appellant effectively took credit for the
stabbing by having the word “active” tattooed on his right hand
13 shortly after the attack. We need not and do not address whether that
provides additional support for the trial court’s rulings.]
14
The present case is distinguishable from People v. Albarran (2007)
15 149 Cal.App.4th 214, 227. There, the defendant, an active gang
member, and a companion shot at a house during a birthday party.
16 (Id. at pp. 217, 220.) There was hearsay that members of a rival gang
were at the party, although the house was owned by someone who
17 belonged to a gang with no known rivalry with the shooters’ gang.
(Id. at p. 221.) The trial court granted a new trial on a gang
18 enhancement allegation but denied a new trial on the underlying
charges, apparently concluding the gang evidence was relevant to the
19 defendant’s motive. (Id. at pp. 222, 226.) The court of appeal
concluded the trial court erred because “There is nothing inherent in
20 the facts of the shooting to suggest any specific gang motive.” (Id. at
p. 227.) In the present case, the victim’s tattoos and the rival colors
21 worn by appellant and Fraire, as well as the general inexplicability
of the unprovoked attack on a factory floor, presented a stronger case
22 of relevance than that in Albarran..6 The trial court did not abuse its
discretion in concluding the gang evidence had a “tendency in reason
23 to prove” (Evid. Code, § 210) appellant’s motive and intent, and was
therefore admissible under Evidence Code section 1101, subdivision
24 (b). (See People v. Williams, supra, 16 Cal.4th at p. 193–194 [gang
evidence relevant to show motive where the victim was wearing gang
25 colors in an area claimed by rival gangs].)7
26 [N.6 Appellant suggests Fraire might have been attacked by a
member of his former gang as retaliation for leaving the gang, but
27 that is not a plausible alternate explanation. Fraire testified he was
still friends with the members of his former gang, he left the gang
28 two years before the stabbing, and Detective Watts testified a Sureño
1 gang member was not likely to wear red.]
2 [N.7 Appellant argues the evidence in the present case was
insufficient to prove the stabbing was gang related within the
3 meaning of section 186.22, subdivision (b)(1). Most or all of the
cases he cites appear to be distinguishable, but we need not reach that
4 issue because appellant has not shown that admission of evidence
under Evidence Code section 1101, subdivision (b) requires the same
5 quantum of evidence to support a finding under the enhancement.]
6 Neither did the trial court abuse its discretion under Evidence Code
section 352. Although the evidence that appellant was an active gang
7 member was inherently prejudicial, that was also the source of the
probative value of the evidence in providing a motivation for
8 appellant to have engaged in the unprovoked attack. The court
excluded evidence that appellant had previously assaulted a Sureño
9 gang member in juvenile hall, which would have been unduly
prejudicial. None of the evidence admitted was “of such nature as to
10 inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is
11 relevant, but to reward or punish one side because of the jurors’
emotional reaction.” (People v. Scott (2011) 52 Cal.4th 452, 491.)
12 The trial court’s instructions decreased the risk the jury would
consider the gang evidence for improper purposes. (People v.
13 Waidla (2000) 22 Cal.4th 690, 725.) The court did not abuse its
discretion.8
14
[N.8 Because there were “permissible inferences the jury [could]
15 draw from the [gang] evidence,” admission of the evidence did not
violate appellant’s federal constitutional right to due process. (People
16 v. Albarran, supra, 149 Cal.App.4th at p. 229.)]
17 (ECF No. 12-9 at 156-60.)
18 Petitioner argues that the state court erred in admitting evidence of petitioner’s gang
19 membership, even for the limited purpose of showing intent and motive, because it was
20 inadmissible under Evidence Code sections 1101 and 352. This issue is a matter of state law and
21 is not cognizable on habeas review. See Estelle, 502 U.S. at 67-68; Holley v. Yarborough, 568
22 F.3d 1091, 1101 (9th Cir. 2009); see also Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005).
23 Errors of state law do not warrant federal habeas relief. See Estelle, 502 U.S. at 67-68; Johnson
24 v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). The erroneous admission of evidence is grounds for
25 federal habeas corpus relief only if it made the state proceedings so fundamentally unfair as to
26 violate due process. See Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).
27 Assuming the claim is cognizable, “[u]nder AEDPA, even clearly erroneous admissions of
28 evidence that render a trial fundamentally unfair may not permit the grant of federal habeas
1 corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme
2 Court.” Holley, 568 F.3d at 1101; see also Walden v. Shinn, 990 F.3d 1183, 1204 (9th Cir.
3 2021); Nava v. Diaz, No. 18-16165, 816 F. App’x 192, 193 (9th Cir. Aug. 12, 2020). Because the
4 Supreme Court has not clearly decided whether the admission of irrelevant, unduly prejudicial, or
5 propensity evidence constitutes a due process violation sufficient to warrant habeas relief, Holley,
6 568 F.3d at 1101, this court cannot conclude that the state court’s ruling was contrary to, or an
7 unreasonable application of, clearly established federal law. See generally, Wright v. Van Patten,
8 552 U.S. 120, 126 (2008) (per curiam); Jennings v. Runnels, 493 F. App’x 903, 906 (9th Cir.
9 Sept. 24, 2012); Bradford v. Paramo, No. 2:17-cv-05756 JAK JC, 2020 WL 7633915, at *6-7
10 (C.D. Cal. Nov. 12, 2020) (citing cases).
11 Petitioner’s argument fares no better on the merits. Admission of evidence violates due
12 process only if the jury could draw no permissible inferences from the evidence. Jammal, 926
13 F.2d at 920 (“Even then, the evidence must ‘be of such quality as necessarily prevents a fair
14 trial.’”) Here, the state court found that “the evidence that [petitioner] had reason to attack the
15 victim Fraire as a perceived gang member provided a motive for appellant to engage in the
16 otherwise unprovoked, inexplicable assault.” (ECF No. 12-9 at 157.) After independently
17 reviewing the record, this court concludes that it was not objectively unreasonable for the state
18 court to find that the jury could permissibly infer that petitioner had a motive or intent to commit
19 the charged offense. Federal courts allow gang evidence to prove intent and motive to commit
20 the crime. See, e.g., Estelle, 502 U.S. at 68-69; Noel v. Lewis, 605 F. App’x 606, 609 (9th Cir.
21 2015); Gomez v. Pliler, 212 F. App’x 687, 691 (9th Cir. 2006); Nguyen v. Runnels, 127 F. App’x
22 926, 927-28 (9th Cir. 2005); Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998). At
23 trial, witnesses testified that petitioner was a member of the Norteños street gang and that the
24 victim was a member of a rival street gang called the Brown Pride Sureños. (ECF No. 12-5 at
25 1701, 1784, 2316, 2326-35). Both petitioner and the victim have gang-related tattoos, and
26 petitioner’s tattoos on his hands and forearms, would have been visible to others, including
27 petitioner, during breaks and before and after work. (Id. at 1703-05, 2257-61, 2312.) Norteños
28 identify with red, and petitioner was wearing red clothing when the incident occurred. (Id. at
1 1699-1702, 1804, 2036, 2335.) On the day of the attack, the victim was wearing blue clothing,
2 and Sureños associate with blue. (Id. at 1700.) Other than the gang evidence, petitioner and
3 victim did not know each other. (Id. at 1699-700, 2337.) An expert witness testified that he
4 believed the crime was gang-motivated. (Id. at 2335.) The trial court mitigated any chance of
5 unfair prejudice by giving a limiting instruction to the jury that the gang evidence could only be
6 used for deciding whether petitioner intended to kill or had motive to commit the charged
7 offenses. (Id. at 2548-49, 2544 (“During the trial certain evidence was admitted for a limited
8 purpose. You may consider that evidence only for that purpose and for no other.”); Walters v.
9 Maass, 45 F.3d 1355, 1357-58 (9th Cir. 1995); see also United States v. Takahashi, 205 F.3d
10 1161, 1165 (9th Cir. 2000); Garcia v. Robertson, 784 F. App’x 992, 994 (9th Cir. 2019). The
11 state court’s decision was not contrary to, or an unreasonable application of, clearly established
12 Supreme Court authority.
13 Petitioner cites two relevant cases to support his argument, but they are distinguishable.
14 In McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993), a pre-AEDPA case, the Ninth Circuit held
15 that the disputed evidence was irrelevant and that no permissible inferences could be drawn from
16 it. Here, the state court reached the opposite conclusion; the jury could permissibly infer from the
17 gang evidence that petitioner had motive or intent to commit the charged offenses. Second, in
18 Kennedy v. Lockyer, 379 F.3d 1041 (9th Cir. 2004), the Ninth Circuit held that “an indigent
19 defendant must be provided with a transcript of prior proceedings which includes, among other
20 things, motions and the court’s rulings thereon, as well as opening statements, closing arguments,
21 jury instructions, and relevant colloquies.” Id. at 1049-50. It found that the state court’s denial of
22 the request for a complete transcript of the first trial and its proceedings had a substantial and
23 injurious effect on the jury’s verdict. Id. at 1054-55. “The prosecution took advantage of
24 [petitioner’s] counsel’s lack of knowledge regarding the prior trial order prohibiting gang
25 testimony in order to introduce the prejudicial testimony in the second trial; the state conceded as
26 much during oral argument.” Id. at 1055. Although the Ninth Circuit stated in dicta that “the use
27 of gang membership to imply ‘guilt by association’ is impermissible and prejudicial,” id. at 1056,
28 the court did not address the evidentiary challenge to the gang evidence. Kennedy is, therefore,
1 | not applicable to petitioner’s evidentiary challenge. This court finds no basis for habeas relief on
2 || petitioner’s claim that the admission of gang evidence violated his right to due process.
3 || VI. Conclusion
4 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
5 || habeas corpus be denied.
6 These findings and recommendations are submitted to the United States District Judge
7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
8 | after being served with these findings and recommendations, any party may file written
9 || objections with the court and serve a copy on all parties. Such a document should be captioned
10 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,
11 || he shall also address whether a certificate of appealability should issue and, if so, why, and as to
12 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the
13 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
14 |} § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after
15 || service of the objections. The parties are advised that failure to file objections within the
16 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951
17 | F.2d 1153 (9th Cir. 1991).
18 || Dated: April 29, 2022
" Aectl Aharon
20 KENDALL J. NE
UNITED STATES MAGISTRATE JUDGE
21
/TAA/carr0304.157
22
23
24
25
26
27
28
14