In re Melvin Hiram Thomas II On Habeas Corpus

Decision Date27 December 2018
Docket NumberE069454
Citation241 Cal.Rptr.3d 864,30 Cal.App.5th 744
CourtCalifornia Court of Appeals Court of Appeals
Parties IN RE Melvin Hiram THOMAS II on Habeas Corpus.

Melvin Hiram Thomas II, in pro. per.; James M. Crawford, Orange, under appointment by the Court of Appeal, for Petitioner.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Respondent.



A jury convicted Melvin Hiram Thomas II in 2003 for receiving a stolen vehicle ( Pen. Code, § 496d, subd. (a), unlabeled statutory citations refer to this code) and active participation in a criminal street gang (§ 186.22, subd. (a) ).1 To support the gang conviction, the People offered a gang expert whose testimony included testimonial, out-of-court statements about the specific facts of Thomas’s case.

On direct appeal, Thomas challenged the admissibility of the gang expert’s testimony as testimonial hearsay which violated his Sixth Amendment confrontation rights under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ). Another panel of this court concluded Crawford did not undermine the established rule that experts may testify about the bases of their opinions without running afoul of hearsay and confrontation clause problems because such evidence is not submitted for the truth of the matter, as our Supreme Court held in People v. Gardeley (1996) 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713 ( Gardeley ). ( Thomas , supra , 130 Cal.App.4th at p. 1210, 30 Cal.Rptr.3d 582.) Subsequently, in People v. Sanchez (2016) 63 Cal.4th 665, 686, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ), the California Supreme Court rejected the Gardeley rule and held introducing out-of-court testimonial statements about case-specific facts through an expert witness violates the confrontation clause (as interpreted in Crawford ) unless the person who made the statement is unavailable and the defendant had a prior opportunity for cross-examination.

Thomas now petitions for a writ of habeas corpus, claiming his conviction for active participation in a criminal street gang is invalid after Sanchez , which established a new rule we should apply retrospectively to his case. We issued an order to show cause, and requested briefing on the issues whether Sanchez was retroactive and whether any error was harmless beyond a reasonable doubt. We conclude the Teague v. Lane (1989) 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 ( Teague ) retroactivity standard governing federal habeas petitions doesn’t govern California habeas petitions, but conclude Sanchez isn’t retroactive under the three-factor analysis set out by the California Supreme Court in In re Johnson (1970) 3 Cal.3d 404, 90 Cal.Rptr. 569, 475 P.2d 841 ( Johnson ) and other decisions. We therefore deny the petition.


On the evening of May 15, 2003, Judith Barrera heard a man outside her house yell, "Fuck you, guys. E.Y.C.," an acronym for the Elsinore Young Classics gang. She went to the front of her house, where she saw Thomas and a codefendant in a parked car. The codefendant got out of the car, entered a truck belonging to a member of a rival gang, and drove off.2

Barrera and her aunt pursued them and, about 10 or 15 minutes later, found the codefendant pushing the truck toward the gas pumps at a convenience store. They saw Thomas get out of the truck and enter the convenience store. Barrera yelled, "That’s our truck" and called 911. The two men fled into a field behind the store, where sheriff’s deputies later found them—concealed in the weeds—and arrested them.

At the jail, Thomas asked a sheriff’s deputy why they had been arrested. The deputy said they’d been arrested for stealing a truck and said they also faced a gang enhancement because someone had yelled out, "Fuck you, E.Y.C." Thomas’s codefendant said Thomas hadn’t been present when he had yelled the acronym.

At trial, Riverside Sheriff’s Officer Robert Kwan testified as a gang expert. He described the Elsinore Young Classics gang generally, focusing on its subgroups and primary activities. "They have the P.W.L.’s, which is the Pee-Wee Locos, the kids in the elementary school levels. They have the Tiny Winos, which is between 12 and 18 years old, which their acronym is T.W.S., and then they have the Nite Owls, which are the guys that are 18 and older." Kwan said E.Y.C. was primarily a Latino gang, although some members were white. Its primary activities ranged "from graffiti to robbery, to burglary, to attempt murder, up to murder," and included stealing cars.

Kwan told the jury he believed Thomas and his codefendant were members of E.Y.C. gang and they committed the crime for its benefit. Kwan based his opinion Thomas was a gang member on his own "training and experience, reports written where [Thomas was] a suspect, times [Kwan had] contacted [Thomas] being in the presence of other gang members, when he was caught with [his codefendant]; also with—that day being caught with another gang member." Kwan said Thomas had admitted "to commit[ting] other crimes with other gang members." He mentioned specifically a 1992 robbery where Thomas and other gang members had stolen "some bikes and hats off some kids" and an incident in February 2002 when Kwan found Thomas in the concealed basement of a house where Kwan was searching for another E.Y.C. member suspected of an attempted murder. Kwan also mentioned seeing an incident report which said Thomas had been present at a knife fight or stabbing in 1995 involving another E.Y.C. member, though Thomas was not charged in connection with that incident. In addition, Kwan said he had talked with other E.Y.C. members about Thomas, and they had told him Thomas was a member of E.Y.C. whose gang moniker was "Little Casper" or "Villain."

Kwan also said Thomas had numerous gang-related tattoos. "He’s got ‘Elsinore’ on his neck, on his eyebrow; ‘Y.C.’ on his eyebrow; ‘P.W.L.’ on his head underneath his hair; ‘Y.C.’ on the back of his head. ‘P.W.L.’ on his arms; ‘E.Y.C.’ across his whole midsection and chest. Numerous other tattoos depicting ‘South Side’ or ‘I.E.’; ‘SUR,’ S-U-R, ‘Y.C.’ on his hands." Thomas had the number "13" tattooed on his arm, which Kwan explained represents "the 13th letter of the alphabet is M, which is the EME. [T]he EME runs the southern faction of the prison system, in the state prison system ... If you are from the southern, you will tattoo 13, showing your affiliation to what they call ‘South Side Surenos.’ " Kwan said Thomas’s head had been shaved when he was arrested so the tattoos on the back and side of his head were visible. In Kwan’s opinion, that meant Thomas was still active in the gang; otherwise, he would have grown his hair out to conceal the tattoos.

Kwan said, based on his training and experience, Thomas and his codefendant had committed the crime for the benefit of E.Y.C. because it caused fear and intimidation for rival gang members. He mentioned that a week before the pickup was taken, someone had painted the codefendant’s gang moniker on the fence next door to Barrera’s house.

On cross-examination, Kwan conceded Thomas did not appear in the photographs of E.Y.C. gang members shown to the jury. He also admitted he was not aware of any crimes Thomas had committed recently. He knew only that Thomas had committed crimes 11 and nine years earlier and had served two years in prison. Kwan said Thomas was about 30 years old, and E.Y.C. was a gang "predominantly geared towards younger age groups." Kwan said much of his expertise concerning Elsinore gangs had been provided by other Elsinore officers and deputies as well as by speaking with E.Y.C. gang members.

Kwan described having several conversations with gang members concerning Thomas. "[J]ust a lot of consensual conversation, you know. We just started talking and names get thrown out on who’s who and monikers and—." He said he had not documented those conversations. The only record he had in his file concerning Thomas concerned the incident in February 2002 when Kwan found Thomas hiding in a concealed basement. Kwan did not have any field identification cards for Thomas. There was no record Thomas had bragged about committing any crimes. Thomas had not been charged with any gang enhancement in the much earlier robbery of bikes and hats.

The jury found Thomas guilty of receiving a stolen vehicle ( § 496d, subd. (a) ) and actively participating in a criminal street gang (§ 186.22, subd. (a) ), but not guilty of vehicle theft. In bifurcated proceedings, the jury found true the allegations Thomas had suffered a prior prison term (former § 667.5, subd. (b)(5) ), two prior serious convictions (§ 667, subd. (a) ), and three strike priors (§§ 667, subds. (c), (e), 1170.12, subd. (c)(2)(A) ). The trial court dismissed two of Thomas’s strike priors on count 2 and sentenced him on count 2 to the aggravated term of six years as a second strike. However, the trial court refused to strike any of the priors on count 3 and sentenced Thomas to a concurrent term of 25 years to life plus an additional and consecutive five-year term for each of the two serious felony priors for a total sentence of 35 years to life.

On direct appeal, Thomas argued the gang expert’s opinion that he was an active member of a criminal street gang violated the confrontation clause under Crawford , because it was based on testimonial hearsay. A panel of this court concluded it was bound to follow the California Supreme Court’s holding in Gardeley , supra , 14 Cal.4th at pp. 618-619, 59 Cal.Rptr.2d 356, 927 P.2d 713, that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions, even if those sources include testimonial hearsay. The panel also concluded Crawford does not undermine that established rule, "because an expert is...

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