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PEREZ v. PLILER

May 14, 2003

SHAWN MICHAEL PEREZ, PETITIONER, VS. C. K. PLILER, WARDEN, RESPONDENT.


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a state prisoner incarcerated at California State Prison, Sacramento, seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming instructional error and ineffective assistance of counsel.

STATEMENT OF THE CASE

On March 9, 1999, petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of San Mateo of first degree murder and attempted robbery. The jury found true the special circumstance that the murder was committed while petitioner was engaged in an attempted robbery. As to both counts, the jury also found true the allegation of personal firearm use and on the count of attempted robbery found true the allegation of personal infliction of great bodily harm.*fn1 Petitioner was sentenced to life in prison without the possibility of parole.

On March 28, 2000, the California Court of Appeal affirmed the judgment and, on July 19, 2000, the Supreme Court of California denied review.

Petitioner sought collateral relief from the state courts. On February 1, 2001, the San Mateo County Superior Court denied his petition for a writ of habeas corpus and, on August 29, 2001, the Supreme Court of California denied his final petition for state habeas relief.

Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on February 12, 2002, the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.

FACTUAL BACKGROUND

The California Court of Appeal summarized the facts of the case as follows:

The killing occurred following a weekend of camping and partying in the vicinity of Half Moon Bay. It was uncontested that appellant shot and killed Michael Rodrigues and essentially uncontested that he did so while attempting, with friends Danny Watson, Linnea Adams, and Destiny Granger, to rob him.
A. The Prosecution Case
Adams was the main prosecution witness to the killing. She testified that she drove, with her three friends, from Sacramento to Half Moon Bay. The two women (Adams and Granger) had $100 between them; appellant had a .357 revolver and Watson a .22 rifle. Watson and Granger brought methamphetamine and marijuana. At the beach, the foursome met Crespin Romero (Romero) who, on the following day, invited them to a party. Before going to the p arty, Adams and Watson discussed finding someone at the party from whom they could get money. During the party, Romero and his friend, Rodrigues (the victim) joined the foursome to ingest methamphetamine provided by Rodrigues. The males "snorted" the drug through $50 bills provided by Rodrigues. On one occasion, appellant showed the group his gun.
The group spent the night together at the campsite. In the morning, as Adams was packing up, Watson told her, "We are going to get some money," which Adams understood to mean a robbery, and she a p proved. All squeezed into Adams' car and went to a gas station to buy cigarettes, where they were joined by two other young women, friends of Rodrigues. Rodrigues stayed with those two women while the others took Romero home. On the way, Watson asked Romero, "Can we rob you homeboy?" Romero said it was none of his business.
The foursome then drove around looking for Rodrigues so they could rob him. When they found him, Adams persuaded him to get into the car to show her the location of a cheap gas station. While Rodrigues pumped gas, the foursome in the car discussed how to rob him. Appellant told Adams to drive behind the alley by the nearby Lucky's. She did so after Rodrigues got back in the car.
Once there, Adams looked back and saw appellant with his gun at Rodrigues' head, perhaps six inches from it. Adams turned back to the front, heard the gun go off, and turned to see Rodrigues had been shot in the head. She heard no words and did not hear or see a struggle before the gun fired. When she looked back a second time, Rodrigues was out of the car and the rear door was being closed. She heard, "Go, go, go," and drove off quickly, almost striking another vehicle. Appellant was crying and said, "Oh, my God, I could have just murdered somebody." Appellant said he did not get Rodrigues' wallet. Shortly thereafter, the foursome was apprehended. Rodrigues died that evening from a gunshot to the head.
To the extent that they witnessed the events to which Adams testified, Romero and Rodrigues' girlfriends corroborated Adams' testimony. They testified that Rodrigues had just been paid and had a lot of money with him and that he spoke of opening a bank account that morning. The driver of the vehicle in the near collision with Adams and another eyewitness also testified.
Appellant save two statements to the police. In his first statement, he denied any revolver was in the car, denied firing a gun, denied meeting anyone named Mike (Rodrigues), and denied shooting anyone or even being present.
The second statement was given in the early morning hours following the shooting. Appellant first denied the .357 was his, then said it was. He admitted talking in the car about robbing Rodrigues. He first claimed that Rodrigues was holding the gun, "messing around with it," and that it went off accidentally. Then he said he and Rodrigues wrestled for control of the gun. Then he said that he told Rodrigues, "Give me your and shit," and that Rodrigues grabbed the gun and it went off. Appellant said he was pointing the gun, but not at Rodrigues' head. He knew the gun was loaded and that it was uncocked. At another point, appellant said the car hit a bump and the gun went off Appellant could not remember if his finger was on the trigger, but it might have been. Appellant said he intended to rob, but not shoot, Rodrigues. After the shooting, he opened the car door and Rodrigues fell out.
The defense presented no evidence.

B. Instructions

The trial court instructed on the felony-murder special circumstance in pertinent part as follows: "If you find the defendant in this case guilty of murder in the first degree, you must then determine if the following special circumstance is true: That the murder was committed while the defendant was engaged in the attempted commission of a felony, namely, attempted robbery. . . . [¶] If you are satisfied beyond a reasonable doubt that the defendant was the actual killer of the human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true."
The court also instructed: "To find that the special circumstance referred to in these instructions as murder in the commission of attempted robbery is true, it must be proved that the murder was committed while the defendant was engaged in the attempted commission of a robbery. [¶] The special circumstance referred to in these instructions is not established if the attempted robbery was merely incidental to the commission of the murder."
People v. Perez, No. A086578, slip op. at 2-4 (Cal. Ct. App. Mar. 28, 2000) (footnote omitted) (Resp't Ex. H).

DISCUSSION

A. Standard of ...


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