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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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6 Case No. 2:22-cv-06933-SB-KES

DE ANDRE LAMONT LOCKLIN,

7 8 Petitioner, ORDER ACCEPTING THE v. FINDINGS, CONCLUSIONS, AND 9 RECOMMENDATIONS OF U.S. 10 TAMMY CAMPBEL, MAGISTRATE JUDGE 11 Respondent. 12

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14 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 15 Habeas Corpus, the records herein, and the Report and Recommendation (R&R) of 16 the U.S. Magistrate Judge. After having made a de novo determination of the 17 portions of the Report and Recommendation to which objections were directed, the 18 Court generally accepts the findings and conclusions of the Magistrate Judge, 19 except as specified below. 20 21 1. Petitioner objects to the Magistrate Judge’s reliance on the factual 22 record as presented in the Court of Appeal opinion, arguing it improperly 23 characterized a description of criminalist Reyna Hernandez’s handling of physical 24 evidence as fact, even though she did not testify. Dkt. No. 91 at 4–5. The objection 25 is meritless because the Magistrate Judge conducted an independent review of the 26 record (Dkt. No. 82 at 4) and did not consider any purportedly improper evidence in 27 analyzing the constitutionality of Kim’s testimony. 28 1 2. Petitioner next argues that the Court of Appeal unreasonably applied clearly established federal law in rejecting his Sixth Amendment claim that Kim 2 violated his confrontation rights by testifying about the collection, preservation, and 3 testing of DNA samples. Dkt. No. 91 at 6. The objection lacks merit. The 4 Magistrate Judge correctly found that Supreme Court authority at the time was 5 unsettled and that the clarifying decision in Smith v. Arizona, 602 U.S. 796 (2024), 6 postdated the Court of Appeal’s ruling. On habeas review, a federal court 7 “consider[s] only Supreme Court ‘precedents as of the time the state court renders 8 its decision.” Jessup v. Shinn, 31 F.4th 1262, 1265 (9th Cir. 2022) (cleaned up). 9 Likewise meritless is Petitioner’s objection that the Court of Appeal failed to 10 address whether the case-file information offered by Kim was testimonial, case- 11 specific hearsay. Dkt. No. 91 at 7. The Court of Appeal’s analysis of the 12 Confrontation Clause issue, including its discussion of People v. Barba, 215 Cal. 13 App. 4th 712, 155 (2013) and People v. Ogaz, 53 Cal. App. 5th 280 (2020), 14 demonstrates that it considered the relevant federal issues. 15 16 3. Petitioner objects that the R&R failed to address whether the Court of 17 Appeal erred in not addressing People v. Sanchez, 63 Cal. 4th 665 (2016), which he 18 believes “supplanted” Barba. Dkt. No. 91 at 9–10. Even if true, this is not legally 19 relevant, as a federal court on habeas review looks only to whether the underlying 20 state court decision is “inconsistent with the holding in a prior decision of [the 21 Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Magistrate 22 Judge reasonably concluded that the decision in this case was not inconsistent with 23 the applicable Supreme Court precedent at the time, Williams v. Illinois, 567 U.S. 24 50 (2012). 25 4. Petitioner incorrectly contends that the Court of Appeal unreasonably 26 found sufficient evidence to support a gang enhancement under California Penal 27 Code § 186.22(b)(1). Under Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009), 28 1 expert testimony can support a gang enhancement when coupled with circumstantial evidence (id. at 1078)—which was present here. See Dkt. No. 16-2 2 at 31–33 (describing the circumstantial evidence of gang involvement and benefit); 3 Jackson v. Virginia, 443 U.S. 307, 443 (1979) (stating that reviewing courts “must 4 presume . . . that the trier of fact resolved any such conflicts in favor of the 5 prosecution, and must defer to that resolution”); Coleman v. Johnson, 566 U.S. 650, 6 651 (2012) (explaining that on habeas review, a federal court may only overturn a 7 state court decision rejecting a sufficiency of evidence challenge “if the state court 8 decision was objectively unreasonable”) (cleaned up). 9 10 5. Petitioner next objects to the sufficiency of evidence to establish a 11 “pattern of criminal gang activity” under California Penal Code § 186.22(e). While 12 California courts have held that an offense occurring after the charged offense 13 cannot be used to establish a pattern of gang activity,1 Petitioner’s claim is 14 unexhausted—he did not raise it before the Court of Appeal or in his petition to the 15 California Supreme Court. Dkt. Nos. 16-2, 16-3, 63-2. The claim was also not 16 raised in his original or first amended habeas petition. Dkt. No. 81; see Greene v. 17 Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (declining to consider claims not 18 raised in the petition). 19 6. Petitioner’s final objection reiterates the arguments in his first 20 amended petition about his trial counsel’s failure to object to a statement in the 21 prosecution’s closing arguments. To the extent the objection attempts to introduce 22 a new claim based on his counsel’s failure to object to the “testimonial, case- 23 specific hearsay from non-testifying analysts” (Dkt. No. 91 at 21–22), this claim is 24 meritless. His counsel raised multiple objections to the testimony on the basis that 25

26 1 See, e.g., People v. Duran, 97 Cal. App. 4th 1448, 1458 (2002) (“Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of 27 criminal gang activity.”).

28 1 || it violated his Confrontation Clause rights under Sanchez and Crawford (Dkt. No. 2 || 20-1 at 46-54, 64, 132-36, 142, 155; Dkt. No. 20-6 at 151-58) and raised the issue 3 || ina motion for a new trial (Dkt. No. 20-3 at 79-81). 4 ** x x 5 The Court adopts the Magistrate Judge’s findings, conclusions, and ° recommendations. Judgment shall be entered denying and dismissing the first amended petition with prejudice, and the Clerk shall serve copies of this Order, the ° Magistrate Judge’s Report and Recommendation, and the Judgment herein on Petitioner and counsel for Defendant.

11 12 ‘3 | Dated: September 29, 2025 OTS. 14 15 Stanley Blumenfeld, Jr. United States District Judge

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