1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FERNANDO DELGADO, Case No. 2:18-cv-02699-FMO-MAA 12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 RAYMOND MADDEN, Warden, JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 18 Petition, the other records on file herein, and the Report and Recommendation of 19 the United States Magistrate Judge. 20 The Court also has reviewed Petitioner’s objections to the Report and 21 Recommendation, which the Court received and filed on June 18, 2020 22 (“Objections”). (Objs., ECF No. 22.) As required by Federal Rule of Civil 23 Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the 24 Report and Recommendation to which Petitioner specifically has objected. 25 I. Ground One 26 As to Ground One of the First Amended Petition, Petitioner argues in his 27 Objections that the Magistrate Judge erred in concluding that the state court’s 28 1 harmless error analysis was not objectively unreasonable. (Objs., at 2–5.) 2 Specifically, Petitioner argues that because Detective Guillen is a law enforcement 3 officer, his testimony likely was accorded greater weight than the other evidence 4 regarding Augustine’s encounter with the Mariana Maravilla gang members. (Id.) 5 Thus, according to Petitioner, the admission of Detective Guillen’s testimony 6 regarding Augustine’s statements was not harmless. (Id.) 7 The Court has conducted an independent review of the state court’s decision, 8 which held that the trial court’s admission of Detective Guillen’s testimony 9 regarding Augustine’s statements was harmless error under the standard set forth in 10 Chapman v. California, 386 U.S. 18 (1967). (Lodged Document (“LD”) No. 8, 11 ECF No. 13-13, at 15–17.) The Court concurs with the Magistrate Judge’s 12 conclusion that the state court’s decision is not objectively unreasonable. See 13 Harrington v. Richter, 562 U.S. 86, 103 (2011) (“[A] a state prisoner must show 14 that the state court’s ruling on the claim being presented in federal court was so 15 lacking in justification that there was an error well understood and comprehended 16 in existing law beyond any possibility for fairminded disagreement.”) As the state 17 court and Magistrate Judge reasoned, Detective Guillen’s opinion that Petitioner 18 acted on behalf of the Mariana Maravilla gang was also supported by his 19 professional experience and knowledge of the Mariana Maravilla gang’s activities, 20 as well as testimony from Alicia and Petitioner regarding the incident between 21 Augustine and the gang members. (See R&R, ECF No. 21, at 25; LD 8, at 17). 22 The Court also concurs with the Magistrate Judge’s conclusion that Petitioner 23 has failed to show that the introduction of Augustine’s statements had a “substantial 24 and injurious effect or influence in determining the jury’s verdict”—the harmless 25 error standard that applies on collateral review. Brecht v. Abrahamson, 507 U.S. 26 619, 637 (1993). Petitioner’s arguments that the jury would not have credited 27 Alicia’s testimony, and that he would not have testified about the incident with 28 1 Augustine but for Detective Guillen’s testimony, are too speculative to warrant 2 relief. See Morales v. Woodford, 388 F.3d 1159, 1173 (9th Cir. 2003) (“Mere 3 speculation is insufficient to grant the writ under Brecht . . . .”). 4 5 II. Ground Two 6 As to Ground Two, Petitioner argues in his Objections that the Magistrate 7 Judge overlooked the California Supreme Court’s recent decision in People v. 8 Canizales, 7 Cal. 5th591 (2019), which limits the use of the “kill zone” theory jury 9 instruction. (Objs., at 6.) He argues that under Canizales, the use of the “kill zone” 10 instruction in his case was prejudicial; and therefore, the state court’s harmless error 11 analysis was objectively unreasonable. (Id., at 5–9.) 12 The Magistrate Judge acknowledged Canizales and thus declined to reach 13 Respondent’s argument that the “kill zone” instruction was proper in this case. 14 (R&R, at 32–33). Although Canizales held that the use of a “kill zone” instruction 15 in that case was prejudicial, this state court decision does not affect the federal 16 harmless error standard, which is governed by Chapman. In light of the evidence 17 presented at trial—Christopher and Alicia’s testimony that Petitioner shot at 18 everyone in the group and that Christopher was directly in the line of fire before 19 successfully taking cover (see 2 Reporter’s Transcript (“RT”) 334–35, 373–76, 20 427–28, 431), and the evidence of Petitioner’s gang-related motive for killing 21 everyone in the group (see 2 RT 450–53, 485–88; 3 RT 710–12; 4 RT 1040, 1052– 22 55), this Court concurs with the Magistrate Judge’s conclusion that the state court’s 23 harmless error analysis was not an objectively unreasonable application of 24 Chapman. 25 In sum, the Court concurs with and accepts the findings, conclusions, and 26 recommendations of the United States Magistrate Judge, and overrules the 27 Objections. 28 1 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 2 || the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 3 || Petition and dismissing this action with prejudice. 4 5 || DATED: August 21, 2020 6 /s/ 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28