Petition for Writ of Certiorari — Albert Bautista Guzman, Petitioner v. Christian Pfeiffer, Warden

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

AUG 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ALBERT BAUTISTA GUZMAN,

Petitioner-Appellant,

v.

CHRISTIAN PFEIFFER, Warden,

No.

21-55277

D.C. No. 2:19-cv-02054-SK

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

SILVERMAN and M. SMITH, Circuit Judges.

Appellant’s motion to reconsider (Docket Entry No. 9), “Rule 33(b)(1)

motion” (Docket Entry No. 10), and “Rule 60(b)(6) motion” (Docket Entry No.

11), are denied. See 9th Cir. R. 27-10.

No further filings will be entertained in this closed case.

il

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JUN 28 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ALBERT BAUTISTA GUZMAN,

Petitioner-Appellant,

v.

CHRISTIAN PFEIFFER, Warden,

No.

21-55277

D.C. No. 2:19-cv-02054-SK

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

BENNETT and FORREST, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 5) is denied

because appellant has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. 2:19-cv-02054-SK

ALBERT BAUTISTA GUZMAN,

Petitioner,

JUDGMENT

v.

CHRISTIAN PFEIFFER,

Respondent.

Pursuant to the Order Denying Petition and Denying Certificate of

Appealability, IT IS ADJUDGED that the petition for writ of habeas

corpus is denied and that this action is dismissed with prejudice.1

—

s——

DATED: March 1. 2021

STEVE KIM

U.S. MAGISTRATE JUDGE

1 Both parties consented to proceed before the undersigned for all proceedings

including entry of judgment (ECF 12,18,19). See 28 U.S.C. § 636(c)(1).

If

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. 2:19-cv-02054-SK

ALBERT BAUTISTA GUZMAN,

Petitioner,

ORDER DENYING PETITION

AND DENYING CERTIFICATE

OF APPEALABILITY

v.

CHRISTIAN PFEIFFER,

Respondent.

I.

BACKGROUND

Petitioner Albert Bautista Guzman is a California state prisoner serving

35 years to life in prison after a juiy convicted him of first-degree murder

with firearm and gang enhancements. (Lodged Document (“LD”) 1)). The

California jury found Petitioner, a member of the Pepper Street gang, guilty

of shooting and killing a rival gang associate during a late-night drive with

four other Pepper Street gang members. (LD 1; 3 Reporter’s Transcript

(“RT”) 263, 417; 2 RT 85, 101). In exchange for immunity, one of those

gang members testified at trial against Petitioner and other codefendants. (3

RT 273). This accomplice testimony, combined with other circumstantial

evidence and eyewitness accounts, showed that Petitioner and his gang were

searching on the night of the victim’s shooting for rival gang members to

i;

fight and had, in fact, violently confronted a different suspected gang rival

some hours before the victim’s death. (4 RT 473, 476-77, 479-81, 490-95).

The cooperating accomplice, who was in the car with Petitioner, testified that

Petitioner was armed with a gun, loaded it with a bullet, and shot the victim

after the Pepper Street members in the car had identified the victim as a

gang rival. (3 RT 257-258, 264-68).

A forensic pathologist also testified at trial, confirming through his

testimony and the autopsy report that the victim died because of a gunshot

wound to his chest. (2 RT 123-26). In addition, a Pasadena, California

police detective testified as a gang expert, relying on (among other facts)

certified criminal records of, his experience with, and some out-of-court

statements about Pepper Street gang members to state that murder, assault,

and firearms possession were among the primary criminal activities of the

Pepper Street gang. (3 RT 391, 405-12, 423-26). The detective then opined

that a murder like the one carried out on the night in question would have

benefited, been directed by, or been associated with a criminal street gang.

(3 RT 426-32).

For his part, Petitioner testified at trial, admitting that he shot the

victim but claiming he did it in self-defense. (4 RT 472, 503, 505, 510-11).

Petitioner was represented by appointed counsel both at trial and on appeal.

He prevailed partially on direct appeal, securing a remand for resentencing

from the California Court of Appeal because of his juvenile status at the time

of the crime. (LD 2 at 2, 54; LD 5 at 2). The trial court had originally given

Petitioner a longer sentence of 50 years to life. (5RT770). But Petitioner

was otherwise unsuccessful overturning his conviction, whether in the

California Supreme Court on direct review or by later state petitions for post­

conviction relief. (LD 4, 7, 8, 9, 11, 13). Petitioner now seeks federal habeas

relief from his state murder conviction and sentence under 28 U.S.C. § 2254.

II.

DISCUSSION

Petitioner raises three claims. First, he contends that he received

ineffective assistance of trial and appellate counsel because neither attorney

ever investigated, questioned, or challenged the pathologist's report, which

Petitioner believes had flaws undermining the pathologist’s credibility.

Second, Petitioner claims that the gang expert’s testimony about the Pepper

Street gang’s criminal activities violated the Confrontation Clause because it

relied mostly on inadmissible hearsay. And third, without citing any specific

federal right or constitutional guarantee, Petitioner argues that he should

receive a new trial because news articles he uncovered years after his

conviction disclosed that one officer who had interviewed potential

eyewitnesses was investigated for police misconduct, even though that

officer was not a trial witness. None of these claims justifies federal habeas

relief under de novo review.1

A. Petitioner Suffered No Prejudice from Alleged Ineffective

Assistance of Trial or Appellate Counsel

To prevail on an ineffective assistance claim, Petitioner must prove

both that counsel’s performance was deficient and that the deficiency

prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687

(1984). To prove prejudice, Petitioner must show a “reasonable probability

that, but for counsel’s unprofessional errors, the result... would have been

different.” Id. at 694. This prejudice standard is even higher—and thus

harder for Petitioner to meet—than the general harmless error standard in

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), that is otherwise

1 As a result, there is no need for the Court to address Respondent’s contestable

procedural defenses like exhaustion (ECF 24 at 2 n.l). See Berghuis v. Thompkins, 560

U.S. 370, 390 (2010); Flournoy v. Small, 681 F.3d 1000,1004 n.l (9th Cir. 2012);

Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir. 2004).

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applicable to habeas claims lacking a prejudice element. See Kipp v. Davis,

971 F.3d 866, 878 (9th Cir. 2020).

On the record here, there is no reasonable probability that the jury

would have acquitted Petitioner if trial counsel had only investigated or

questioned—or even somehow successfully excluded—the pathologist’s

autopsy report. The victim’s clinical cause of death was not a genuinely

disputed issue at trial, for Petitioner admitted shooting the victim (although

in claimed self-defense). See, e.g., Mejia v. Brazelton, 2013 WL 2155386, at

*8 (C.D. Cal. May 16, 2013) (evidentiary error harmless because defendant

admitted stabbing victim in self-defense and cause of death was

uncontroverted); McNeiece v. Lattimore, 2009 WL 1464368, at *8 (C.D. Cal.

May 22, 2009) (similar). Contrary to Petitioner’s suggestion that the

pathologist was unreliable because he mistook a defibrillator pad mark for a

second gunshot wound (ECF 6-1 at 54-55; 26 at 4), the record reveals no

such mistake. (ECF 6-1 at 53-56, 65-66, 76, 82-84, 89). Nor is it at all

evident, at any rate, how that could have undermined confidence in the jury

verdict. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997)

(“Speculation about what an expert could have said is not enough to

establish prejudice.”). After all, an eyewitness accomplice incriminated

Petitioner as the shooter. So the believability of Petitioner’s self-defense

argument, not the credibility of the pathologist, was the central—and

naturally most important—contested issue at trial.

Likewise, there is no reasonable probability that Petitioner would have

secured reversal of his conviction on appeal if appellate counsel had only

investigated and attacked the pathologist’s report. See Smith v. Robbins,

528 U.S. 259, 287-89 (2000); Hurles v. Ryan, 752 F.3d 768, 785-88 (9th

Cir. 2014). For the same reason that such a strategy would have made little

difference at trial, it would have made no difference on appeal either.

•;!

Appellate counsel, evidently, even explained this to Petitioner—after which

counsel successfully secured him a partial remand for resentencing. (ECF 61 at 19, 64). Petitioner also could have suffered no prejudice from his

appellate counsel’s decision not to press this claim on appeal because, on

state collateral review, he ultimately received the only relief he could have

gotten even if counsel had followed his instruction. In his state habeas

petitions to the California state courts—including to the California Court of

Appeal and Supreme Court—Petitioner raised his challenge to the

pathologist’s report. (LD 9 at 4, 40-43; LD 13 at 5, 54-57). Yet those courts

rejected his claim each time. (LD 10, 14). In other words, Petitioner could

have suffered no prejudice because there is no likelihood—much less a

reasonable probability—that the very California appellate courts that

rejected Petitioner’s claim on collateral review would have arrived at a

different result if only that identical claim had been raised sooner in those

same courts on direct appeal. See Miller v. Zatecky, 820 F.3d 275, 276-77

(7th Cir. 2016) (denying habeas relief for ineffective appellate counsel claim

where state court of appeals decided on collateral review merits of

underlying issues that petitioner argued shouldhave been raised by counsel

on appeal); Duckett v. Rackley, 2017 WL 1129947, at *4 (C.D. Cal. Jan. 4,

2017) (same); O’Neal v. Sherman, 2016 WL 1714552, at *23 (C.D. Cal. Feb.

26, 2016) (same).

B. The Gang Expert’s Testimony Did Not Violate the

Confrontation Clause

To prove the gang sentencing enhancement under California Penal

Code § 186.22, the prosecution in Petitioner’s trial had to prove (among

other elements) that he “committed a felony for the benefit of, at the

direction of, or in association with any criminal street gang[.]” People v.

Mejia, 211 Cal. App. 4th 586, 613 (2012). A “criminal street gang” under

5

this statute is one that has as one of its “primary activities” the commission

of one or more predicate offenses enumerated in the statute and includes

members who engage, or have engaged, in two or more predicate crimes and

thus a “pattern of criminal gang activity.” People v. Gardeley, 14 Cal. 4th

605, 617 (1996). The charged crime itself, however, may serve as one of the

qualifying predicate offenses. See People v. Tran, 51 Cal. 4th 1040, 1046

(2011).

Petitioner claims that the prosecution erroneously admitted hearsay

through the gang expert’s testimony in violation of the Sixth Amendment’s

Confrontation Clause to prove that the Pepper Street gang was a “criminal

street gang” under California law. (ECF 6-1 at 19, 40, 42, 46-47). But the

Confrontation Clause applies only to “testimonial” statements, meaning

those “procured with a primary purpose of creating an out-of-court

substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, 358

(2011). “Certified computer records of the criminal convictions of other

gang members” in this case did not count as testimonial since they were

created, not to serve as evidence against Petitioner, but to “memorialize the

events that occurred in other, unrelated, court proceedings.” Hines v.

Harrington, 2010 WL 4025608, at *10 (C.D. Cal. Sept. 2, 2010); see Bryant,

562 U.S. at 359 (admissibility of non-testimonial hearsay “is the concern of

state and federal rules of evidence, not the Confrontation Clause”).

Moreover, an expert witness may rely on “inadmissible testimonial

hearsay... to explain the basis for his expert opinion.” United States v.

Vera, 770 F.3d 1232,1237-39 (9th Cir. 2014). The gang expert here did just

that, resting his opinions not only on certified conviction records but also on

his gang training, familiarity with and observations of the Pepper Street

area, formal and informal contacts with Pepper Street members, and

conversations with them about their activities. (3 RT 391-93, 399-401, 404-

12). He did not, in other words, “merely act[] as a transmitter for

testimonial hearsay” but applied “his training and experience to the sources

before him” to “reach[] an independent judgment.” United States v. Gomez,

725 F.3d 1121,1129 (9th Cir. 2013) (cleaned up). That does not violate the

Confrontation Clause. See Williams v. Illinois, 567 U.S. 50, 58 (2012)

(“When an expert testifies for the prosecution in a criminal case, the

defendant has the opportunity to cross-examine the expert about any

statements that are offered for their truth” and “[o]ut-of-court statements

that are related by [an] expert solely for the purpose of explaining the

assumptions on which [his expert] opinion rests are not offered for their

truth and thus fall outside the scope of the Confrontation Clause.”).

C. Petitioner’s Free-Floating Claim of “Detective

Misconduct” Warrants No Federal Habeas Remedy

Finally, with no link to a cognizable federal right, Petitioner contends

that he deserves habeas relief because “Detective Kevin Okamoto of the

Pasadena Police Department was found guilty of misconduct.” (ECF 6-1 at

19, 97-101). Petitioner evidently learned—years after his trial and mostly

from newspaper articles—that Detective Okamoto, who was among those

who investigated the shooting here and interviewed witnesses at the scene,

was accused of misconduct in other criminal investigations. (ECF 6-1 at

100-01,104; ECF 6-2 at 15-19; ECF 29 at 4-7; ECF 26 at 15-20). But this

detective never testified at Petitioner's trial. Nor does Petitioner draw any

connection between evidence presented at trial and this detective’s alleged

misconduct. He merely alludes to the theoretical possibility that this

detective “jeopardized” the murder investigation. (ECF 6-1 at 99-101).

Even if that is possible, such a free-floating allegation unmoored from any

federal right or constitutional guarantee does not—and cannot—prove there

was a “substantial and injurious effect or influence in determining the jury’s

7

verdict.” Brecht, 507 U.S. at 623. “Misconduct by the police, however

reprehensible, is not a ground for federal habeas corpus if it does not

contribute to a conviction.” Miller v. Eklund, 364 F.2d 976, 978 (9th Cir.

1966). That is doubly true when the accused officer is not even a

prosecution witness at the trial.

III.

CONCLUSION

For all these reasons, the petition for writ of habeas corpus under 28

U.S.C. § 2254 is DENIED. Judgment will be entered dismissing this action

with prejudice.2 A certificate of appealability is also DENIED because

Petitioner has made no substantial showing of the denial of a constitutional

right. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Slack v. McDaniel,

529 U.S. 473, 484 (2000).

IT IS SO ORDERED.

"7

DATED: March 1. 2021

STEVE KIM

U.S. MAGISTRATE JUDGE

2 Both parties consented to proceed before the undersigned for all proceedings, including

the entry of judgment (ECF 12, 18,19). See 28 U.S.C. § 636(c)(1).

8