The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
LUIS ESPINOZA, Case No. 19-cv-04693-VC
Plaintiff,
ORDER DENYING HABEAS
v. PETITION
TAMMY FOSS, Re: Dkt. No. 1
Defendant.
Espinoza’s habeas petition is denied.
1. The only way the trial court’s decision to admit gang expert testimony could be
deemed a due process violation is if there were “no permissible inferences the jury may draw”
from the testimony and it was “‘of such quality as necessarily prevents a fair trial.’” Jammal v.
Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting Kealohapauole v. Shimoda, 800 F.2d
1463, 1465 (9th Cir. 1986)). In this case—more so than most cases where gang expert testimony
is admitted at trial—the evidence was probative. Aside from the gang expert testimony, the
government introduced other evidence relating to the shooter’s motive and identity—the prior
relationship between Martinez and Espinoza, their conversation outside the convenience store,
the fact that mere minutes passed between the fight and the shooting, and the shooter emerging
from the apartment complex across the street. The gang expert’s testimony bolstered this
evidence. His testimony that gang members may retaliate on each other’s behalf to preserve the
gang’s standing in the community provided the jury with a reason to identify Espinoza, rather
than Martinez or some other person from the apartment complex, as the shooter. So the
California Court of Appeal’s decision to reject the due process claim relating to the gang expert
testimony was not objectively unreasonable.1
2. Espinoza also contends that his due process and confrontation rights were violated in
connection with Martinez’s refusal to testify. Martinez invoked the privilege against self-
incrimination in front of the jury. His invocation was illegitimate, because the government had
offered him immunity. Before holding him in contempt, the trial court permitted the prosecutor
to ask him a few substantive questions, including whether he had told Espinoza to kill Pimental.
The trial court ultimately struck Martinez’s testimony, told the jury not to consider it, and gave a
limiting instruction that counsel’s questions were not evidence. During closing arguments, on
rebuttal, the prosecutor urged the jury to consider why Martinez refused to testify and who he
was protecting.
Espinoza’s case lies somewhere between two Supreme Court decisions—one finding a
constitutional violation and the other not. In Douglas v. State of Alabama, the Court found that
the defendant’s confrontation rights were violated when the prosecutor read the entirety of a
witness’s signed confession implicating the defendant to the jury, in the form of questions to the
witness who repeatedly refused to testify. 380 U.S. 415, 416–17 (1965). By contrast, in Frazier
v. Cupp, 394 U.S. 731 (1969), the Supreme Court did not find a constitutional violation when the
prosecutor previewed a witness’s testimony in his opening statement and the witness
subsequently invoked his Fifth Amendment privilege and refused to testify in front of the jury.
Id. at 733–34. The trial court’s limiting instruction—that the opening statement was not
evidence—and the relatively limited probative value of the witness’s potential testimony were
enough to alleviate any constitutional concerns. Id. at 735–36.
The conduct of the trial court and the prosecutor in this case are more troubling from a
constitutional standpoint than the events in Frazier. The prosecutor asked Martinez substantive
questions in front of the jury that he likely should not have been allowed to ask. But the trial
1 Although the decision to admit the YouTube videos of Espinoza rapping is head-scratching, it
was not prejudicial in light of the other evidence presented against him at trial (including but not
limited to the gang expert testimony).
court also took actions that were more protective than the limiting instructions in Frazier. And
although the trial court allowed the prosecutor to make a limited argument at closing about
Martinez’s refusal to testify, that decision was not unreasonable. Under these circumstances, it
arguably would have been unfair to the prosecution to prevent the jury from drawing reasonable
inferences from Martinez’s improper refusal to testify.
Although Espinoza’s trial was somewhat more troubling than Frazier’s, it was far less
constitutionally troubling than Douglas’s. Asking a few substantive questions of a witness who
improperly invoked the Fifth Amendment privilege is nothing like reading a signed confession
implicating the defendant under the guise of asking questions to a witness who refuses to testify.
Overall, on habeas review, the Court cannot say that it was an unreasonable application of or
contrary to clearly established Supreme Court precedent for the California Court of Appeal to
reject this claim.”
OK
A certificate of appealability will issue only on the issues discussed in Section 2 of this
ruling, because only for those issues would reasonable jurists “find the district court’s assessment
of the constitutional claims debatable.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see 28
US.C. § 2253(c).
IT IS SO ORDERED.
Dated: March 1, 2022 LE.
VINCE CHHABRIA
United States District Judge
> At the hearing, Espinoza identified County Court of Ulster County y. Allen, 442 U.S. 140
(1979), Darden v. Wainwright, 477 U.S. 168 (1986), and Namet v. United States, 373 U.S. 179
(1963), as his strongest cases to overcome the AEDPA bar. But County Court and Darden are far
too general to make it “obvious that a clearly established rule applies” in this case. White v.
Woodall, 572 U.S. 415, 427 (2014). And Namet is not a constitutional precedent; it addresses
non-constitutional evidentiary violations, which are not cognizable in federal habeas. 373 U.S. at
185; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).