The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 28, 2002, the Tulare County District Attorney's Office filed an information charging Petitioner, in count I with a felony violation of California Penal Code section 187(a).*fn1 It was further alleged that Petitioner personally and intentionally discharged a firearm within the meaning of sections 12022.53(c) and (e)(1). Count two alleged a felony violation of section 12020(a), possession of a sawed-off shotgun. (CT 35-37.)
On January 6, 2003, a seven-day jury trial commenced, and on January 14, 2003, the jury was unable to return a unanimous verdict, with a vote of 10-2 for guilty on the murder charge and the special allegation. (CT 340-419.) The trial court granted Petitioner's section 1118.1 motion to dismiss count two, possession of a sawed-off shotgun. (CT 390; 1RT 565-66.)
On January 14, 2003, the special allegation was amended to allege a violation of section 12022.53(d), that Petitioner personally and intentionally discharged a firearm which proximately caused great bodily injury and death to the victim, in place of section 12022.53(c) and (e)(1).
The matter was subsequently scheduled for a new jury trial. (CT 428.)
On June 2, 2003, a six-day jury trial commenced, and on June 9, 2003, the jury returned a verdict of guilty on count one, murder in the first-degree. The jury also found true the special allegation pursuant to section 12022.53(d). (CT 435-486.)
On July 7, 2003, Petitioner was sentenced to 25-years-to-life on the first-degree murder charge and 25 years-to-life, consecutive, on the use of a firearm, for an aggregate term of 50 years-to-life.
Petitioner filed a timely notice of appeal. On February 3, 2005, in an unpublished opinion, a divided panel of the California Court of Appeal, Fifth Appellate District reversed the judgment. (Lodged Docs. A-C .)
Both Petitioner and the State sought rehearing in the appellate court. (Lodged Docs. D- E.) Rehearing was granted, and in a new unpublished opinion issued on July 20, 2005, a divided panel of the Fifth Appellate District affirmed the judgment. (Lodged Doc. F.)
Petitioner sought review in the California Supreme Court. (Lodged Doc. G.) The petition raised the same claims alleged in claims six, seven, eight, and nine of the instant federal petition. (Id.) The California Supreme Court denied review on October 26, 2005. (Lodged Doc. H.)
On May 31, 2006, Petitioner filed a state petition for writ of habeas corpus in the Tulare County Superior Court in case number 165023. On June 5, 2006, the superior court mistakenly found the petition was premature. The court further found the petition failed to state sufficient grounds for relief. (Lodged Docs. I-J.)
On June 16, 2006, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District, which was denied on June 7, 2007. (Lodged Docs. K- L.)
On July 16, 2007, Petitioner filed a state petition for writ of habeas corpus in the California Supreme Court. The petition was summarily denied on January 3, 2008. (Lodged Docs. M-N.)
Petitioner filed the instant federal petition for writ of habeas corpus on February 13, 2008.
(Court Doc. 1.) Respondent filed an answer to the petition on September 25, 2008, and Petitioner filed a traverse on October 6, 2008. (Court Docs. 14, 15.)
As of May 2001, Yvette Contreras (Yvette) was 17 years old and had graduated from high school. She worked at a fast-food restaurant and lived with her mother. About two to three months before she disappeared, Yvette confided to her mother that she was afraid to be alone, and she was scared that something was going to happen to her. A few weeks before she died, some girls drove by their house and yelled at Yvette.
Appellant Manuel Renteria lived in Tulare with his mother, and his brothers Ramon and Lucio. Rocio Macias (Rocio) was appellant's girlfriend. Appellant also had a relationship with Yvette.
On Saturday, May 5 or Sunday, May 6, 2001, appellant and Rocio had an angry conversation and broke up. Rocio was angry because appellant had several other girlfriends and he was cheating on her. At trial, Rocio admitted appellant had a relationship with Yvette and that she viewed Yvette as a rival. However, Rocio denied that she was angry about appellant's relationship with Yvette, and insisted she never confronted Yvette or fought with her.
On the morning of Monday, May 7, 2001, Yvette's mother was getting ready to leave for work when the telephone rang around 9:00 a.m., but she missed the call. The telephone rang again around 9:40 a.m., and she answered it and spoke to a man whose voice she recognized as belonging to "Manuel." Yvette's mother had never met Manuel in person, but she recognized his voice based on his prior telephone calls to Yvette over the previous four years. Manuel frequently called the house to speak with Yvette, and Yvette referred to Manuel as her "friend." Yvette was still asleep when he called that morning, and her mother left for work at 9:45 a.m. without telling her that Manuel had called.
Around 10:00 a.m., appellant appeared at the residence of Anna Corp, his next-door-neighbor in Tulare, asked to use the telephone, and said he was waiting for a ride. Corp stated appellant used the telephone, looked out the window, and then left her house. Corp saw appellant walk toward a small white car, which was parked in front of appellant's house. Corp identified the small white car as similar to Yvette's white Hyundai Accent.*fn3 Both Corp and her son, Bryan Urbina, stated appellant was wearing a red shirt with lettering when he asked to use their telephone on Monday morning.
Around 4:20 p.m., Yvette's mother returned home but neither Yvette nor her car were there. She checked Yvette's room and noticed that her bed was not made and the room was not clean. She thought that was unusual because Yvette liked everything to be "nice and tidy. And it was as if she just got up out of bed and took off...." Yvette's purse was still in her room. Several personal items were missing, however, including her driver's license, her social security card, her ATM card, her birth certificate, and her keys.*fn4
Rocio Macias testified she went to school and work on Monday, and she did not see or speak with appellant that day.
Around 3:30 p.m., Waylon Dowdy drove along the canal bank near Avenue 184 and Road 48 to go fishing. Dowdy regularly went fishing at a particular location on the canal bank, and described the area as "really secluded," without houses or development. "It's just a bayou. It's got oak trees all along the sides of it all the way down. It's probably four or five miles long. It's a pretty long bayou." The canal was flanked by cotton and corn fields on either side. Dowdy frequently found beer bottles and cans along the canal bank, and knew that people went out there to "party." Dowdy also knew that people went hunting in the area, and he often found shotgun shells in the dirt.
As Dowdy drove westbound along the canal bank that afternoon, the sun was glaring into his front window and obstructed his view. Dowdy did not see anyone or hear anything while he was fishing, and there was no one else out there.
Around 4:30 p.m., Dowdy drove out of the area, traveling east along the same dirt path. He noticed something on the dirt, about 100 yards from where he had been fishing. He got out of his vehicle and found a "pretty good size" pool of blood with bits of bone and tissue. He also found bits of brain in the canal water. There were beer cans near the blood, but he did not see any clothing or shoes. Dowdy believed the pool of blood was already there when he drove out to his fishing spot because he would have "heard or seen anything if it would have been around." Dowdy also thought the glaring sun had prevented him from noticing it earlier. He scooped up some of the matter and put it in a plastic bag, drove home, and immediately contacted the Tulare County Sheriff's Department. The blood and bits of brain found by Dowdy were subsequently identified as consistent with Yvette's DNA profile.
Around 8:30 p.m., detectives from the Tulare County Sheriff's Department went to the canal bank with Dowdy, and he showed them where he found the evidence. There was a large pool of blood, tissue, and bone matter on the canal bank. There was a spent shotgun shell and shotgun pellets on the dirt path. Detective Frank Arnold described the scene as "open country." The canal ran east/west and bisected Road 48. A cotton field was on the north side of the canal, and a corn field was on the south side. Arnold testified the actual crime scene was about one mile off the paved road.
Also on Monday night, appellant appeared at the Porterville residence of Luisa Andrews, his brother's girlfriend, and asked to use the telephone and spend the night. He arrived on foot and he was not carrying anything. Andrews thought appellant's presence was unusual because he arrived without his brother, but she allowed him to use the telephone and spend the night.
At midnight, Yvette's mother contacted the Tulare Police Department and reported that Yvette was missing. Yvette's mother advised the officers about the telephone call she received on Monday morning.
On Tuesday, May 8, 2001, Detective Arnold contacted Anna Corp and learned about appellant's appearance at her house on Monday morning, and that he left in a small white car.
Around 4:00 p.m. on Tuesday, Rocio was interviewed by detectives from the Tulare County Sheriff's Department about Yvette's disappearance. This interview occurred before Yvette's body or any physical evidence was found. The detectives advised Rocio that Yvette was missing, appellant was a suspect, and that she was also viewed as a suspect.
After her interview with the sheriff's detectives, Rocio tried to find appellant. Rocio went to Yvette's house and asked Yvette's mother if she had seen appellant, because she was told that appellant was with Yvette.*fn5 She also looked for appellant at Anna Corp's house. Rocio eventually found appellant's brother, Ramon, and they drove to Porterville on Tuesday night and picked up appellant from Luisa Andrews's house.
Rocio drove appellant and Ramon back to Tulare, where they dropped Ramon at his family's house, and then appellant asked Rocio to drive him to a particular location in Corcoran. Rocio was unfamiliar with the house and followed appellant's directions to Corcoran.
As we will extensively discuss, post, Rocio and appellant had a lengthy conversation during the drive from Tulare to Corcoran. Rocio advised him that Yvette was missing, the police were looking for him, and the police thought Yvette had been killed. Thereafter, appellant made several statements to Rocio in which he admitted he had been with Yvette, he shot her in the face, and he got rid of the gun and his clothes.
Valerie Amador lived on Bell Street in Corcoran, and appellant was her brother's friend. On Tuesday night, Amador arrived home from work and found appellant at her house. Appellant visited with Amador's brothers and spent the night at her house.
At 1:12 a.m. on Wednesday, Detective Arnold contacted appellant's brother, Ramon, at his mother's house, and asked him about a gun. Ramon said he had purchased a 12-gauge Mossberg single-barrel pump shotgun. Ramon stated he sold it and then purchased it again, and it was now sawed off. Ramon said he kept the shotgun and some rounds in his bedroom. Ramon took Detective Arnold into his bedroom and showed him that the shotgun was not there. Ramon stated he came home from work and found his gun was missing. Ramon also stated he was a felon and not allowed to have a gun.*fn6
At 4:30 a.m., the detectives arrested appellant at Valerie Amador's house on Bell Street in Corcoran, where Rocio had left him the previous night.*fn7
Detective Martin testified he drove appellant from Corcoran back to the violent crimes office, located north of Visalia on Road 112 and Avenue 360. Appellant was seated in the front passenger seat of Martin's unmarked unit. Martin testified he took the back roads and the shortest route from Corcoran to the Visalia office. He left Corcoran and drove on Road 28 to Avenue 184, then turned north.
Martin testified appellant started to talk to him "not too long" after they left Corcoran. Appellant asked why he was being arrested. Martin replied: " You know why you're being arrested.' " Appellant paused for a few seconds and said, " 'That's really fucked up.' " Martin then said: " 'You know who the victim is.' " Appellant again paused and then said, " 'Yeah, Yvette.'"
Martin testified that appellant also asked him: " 'Are we going to drive by the crime scene?' " Martin did not reply. Martin testified during the drive to the office, he used a road which was "nearby where the [crime] scene was." As they drove past that area and turned at an intersection, Martin testified appellant did not say anything but he looked "to his right away from me as I continued driving," and he looked out the front passenger window "in the direction of the crime scene." Martin testified the crime scene was off the road and about one mile away.*fn8
Also on Wednesday morning, at some point after 8:00 a.m., Yvette's small white Hyundai was found. It had been abandoned on a dirt road near a residential area in Porterville. A deputy responded to the area and opened the trunk, and found Yvette's bloody body. There was blood, hair, and brain matter on the front left side of the vehicle, and a single blood drop on the rear bumper.
Yvette's car was found just one-quarter mile away from Luisa Andrews's house, where appellant had arrived on foot on Monday night.
Michael M. lived in the residential area where Yvette's car and body were found, and recalled that day because it was a big event in the neighborhood. Michael testified that a few nights before Yvette's body was found, he saw a man drive a white car past his house and continue down the dirt road. It was dark and late at night and the male driver was the only occupant. Michael M., who was 16-years-old at the time of the second trial, testified the driver's skin was darker than his own, and the driver's hair was short on the sides and kind of short on the top. Michael claimed the white car was longer than a compact car, but admitted he testified at the first trial that the white car was similar to Yvette's white Hyundai.
At 3:30 p.m. on Wednesday, the sheriff's department conducted another interview with Rocio and arrested her, and she was taken into physical custody and booked into jail. Appellant's brother, Ramon, was also arrested at some point.
Around 7:54 p.m. on Wednesday night, after both appellant and Rocio were in custody, the sheriff's department received an anonymous 911 call from a female, who said she found a bag of bloody and burnt clothing in a rural area in Terra Bella, and the items could be related to the missing girl case. The anonymous call was traced to a payphone at a Porterville gas station, and a witness stated a girl with tattoos in a red car had used the telephone. The caller was never found.
At 8:30 p.m., a deputy recovered a large plastic bag from an open field in a rural country area in Terra Bella. The bag was placed in the dirt just beyond some weeds. The bag was tied closed, and it contained partially burned clothes and papers.
At trial, the criminalists testified that blood and human tissue recovered from the canal bank and Yvette's car were identified as consistent with Yvette's blood, based on her DNA profile. There was blood, brain matter, and hair on the front grill, front license plate, front headlights, and front windshield of Yvette's car. There was also blood on the right front seat, by the side of the door. There was one spot of blood on the rear bumper.
Yvette's bloody body had been thrown into the trunk of her car. There were bloody scrapes on her knees, and bloody leaves in the trunk under her body. She had been killed by a close contact shotgun blast to the left side of her head. The shotgun blast was fired from the front to the back of her head, inflicted considerable destructive trauma, and destroyed the bone, brain material, and the left side of her skull. Several lead pellets were recovered from her left eye socket, and consisted of both size four and size six pellets. Such pellets could have been fired from the same shotgun if the shell had been loaded by hand.
There were fingerprints lifted from Yvette's car but the prints were only matched to Yvette; appellant and Rocio were excluded as sources of those fingerprints. There were numerous tire prints, shoe prints, beer cans, cigarette butts, and shotgun shells found at the canal bank around the area of the pool of blood. The tire prints from Yvette's car and Waylon Dowdy's car were identified, but none of the other items found at the canal bank were linked to Yvette, appellant, Rocio, or any evidence in this case.
As noted ante, the investigators recovered a bag of burned clothes and papers in Terra Bella. The criminalist who examined the contents of the bag determined that hair found among the clothes was consistent with Yvette's hair samples, used as references. In addition, there were telephone numbers written on the papers which were directly connected to Yvette-one number belonged to her grandmother, and another number belonged to a friend.
The bag also contained a pair of bloodstained blue pants. The bloodstains were identified as consistent with Yvette's blood, based on a DNA profile. The bloodstained pants had the same measurements as a pair of pants retrieved from appellant's residence, which appellant previously wore. A hair was recovered from the bloodstained blue pants. Appellant's pubic hair, used as a reference, could not be eliminated as the source of this hair.
A white tube sock was found in the bag. Appellant's pubic hair, used as a reference, could not be eliminated as the source of two hairs found on the white tube sock. Appellant's head hair, used as a reference, could not be eliminated as the source of one hair found on the autopsy table, presumably from Yvette's body.*fn9
The bag contained a red shirt with lettering on it. Both Anna Corp and her son, Bryan Urbina, stated appellant was wearing a red shirt with lettering when he asked to use their telephone on Monday morning. The bag also contained a "Puma" jersey and a pair of "Lugs" shoes. Bryan Urbina identified the "Puma" jersey as similar to one previously worn by appellant. Bryan Urbina also identified the "Lugs" shoes as similar to a pair which appellant showed him shortly before the murder. Appellant told Bryan that he just bought the shoes with his last paycheck.
Finally, the bag contained a piece of paper with a picture of "Marvin the Martian" on it. There were two hairs on this paper, and the hairs could not be eliminated as coming from Yvette, using her head hair as a reference. These two hairs were found not to be similar to reference samples from appellant or Rocio.
Rocio, appellant's girlfriend, testified at appellant's preliminary hearing and was subject to extensive cross-examination. At both trials, however, she refused to testify pursuant to the Fifth Amendment and was thus unavailable. (Evid.Code, § 240.) At both trials, Rocio's preliminary hearing testimony was read to the jury pursuant to the former testimony exception to the hearsay rule. (Evid.Code, § 1291.)*fn10
Rocio testified, as set forth ante, about being contacted by sheriff's detectives on Tuesday, May 8, 2001, that she learned Yvette was missing, and both appellant and Rocio were suspects. Rocio also testified about her efforts to find appellant, and that she drove Ramon to Porterville and they picked up appellant at Luisa Andrews's house. Rocio and appellant dropped off Ramon at the Renteria's house in Tulare, and then Rocio drove appellant to Valerie Amador's house in Corcoran.
Rocio testified that during the drive to Corcoran, she told appellant about her interview with the sheriff's detectives and "what they had told me," that appellant "was a possible suspect and that [Yvette] had been missing." As Rocio testified about this conversation, she was initially hostile toward the prosecutor and somewhat equivocal as to what appellant told her. On direct examination, Rocio testified she told appellant everything the detectives told her: that the sheriff's department was looking for him, Yvette was missing, someone had been shot, and he was a suspect. Rocio testified she was angry and emotional as she talked with appellant, and she started to cry because she did not know what to think or believe. Rocio kept "pushing the subject", and appellant became upset because she wouldn't drop the subject. "I told him what the detectives told me, and he said, 'Yeah, is that what you want to hear?' And he just repeated everything back to me."
Rocio claimed she repeatedly confronted appellant with the detectives' information that "somebody had gotten shot" and Yvette was missing. "And he just said, 'Yeah, okay. Is that what you want to hear? Yeah.' He was just-everything I told him about somebody getting shot and him being missing, he repeated everything back." Appellant yelled at Rocio to shut up because he did not know what she was talking about. Rocio again told him that someone had been shot "and he had something to do with it and that he was a suspect." Appellant replied: " All right. Is that what you want to hear? Yeah, somebody got killed. There. Does that make you happy?' Stuff like that...." "I told him someone got shot, and he goes, 'Okay. Yeah. I shot her, yeah. Is that what you want to hear?' " Appellant never said he killed Yvette "in those words," and never said Yvette's name, but Rocio testified appellant was clearly talking about Yvette.
As her direct examination continued, however, Rocio testified she pressed appellant for "a lot of reasons" and asked if it was true. In response, appellant volunteered information about Yvette which went beyond simple repetitions of what Rocio reported about her interview with the sheriff's detectives. Rocio testified appellant made several statements which contained information she did not know about. As her testimony continued, Rocio was still hesitant to repeat appellant's statements, but she was confronted by the transcript of her interview with the sheriff's detectives and testified to appellant's statements.
Thereafter, Rocio testified appellant "blurted ... out" certain things about Yvette and he said "all that at once." Appellant told Rocio that " '[s]omebody's head got shot' "; "the side of her face was blown off"; they were hanging out and messing around and he "just shot her"; Yvette "just turned around" before he shot her; " 'he will never forget that face' "; he had a beer and she had a soda; just before he shot her, Yvette said " 'are you going to shoot me or something?' "; that "it was a gun"; he did not have the gun on him; he left the gun back "over there" to "get cleaned" and "get rid of"; his clothes "must have got burnt"; and he got rid of everything, and he got rid of his shoes and clothes.
On cross-examination, Rocio returned to her story that appellant merely repeated what she told him. Rocio testified that appellant said " [f]ine, whatever you say,' " and "[i]s that what you want to hear," as a way to get her to shut up and "pacify" her. Also on cross-examination, Rocio testified she asked to see a priest because she felt bad that she initially lied to the detectives about "something this big."
On redirect examination, Rocio testified she did not want appellant to kill Yvette and she did not want appellant to tell her that he killed Yvette.
"Q: ... Were those things that you wanted to hear on Tuesday night on the trip from Tulare to Corcoran?
"Q: Did you want [appellant] to kill Yvette?
"Q: Did it make you happy when he told you that he had blown the side off somebody's face?
"Q: Were you trying to get [appellant] to say those things to you?
Also in her testimony, Rocio admitted she smoked marijuana on a daily basis in April and May 2001. She used both marijuana and methamphetamine during the week that Yvette disappeared because she did not want "to think or believe" the things the detectives told her about the case. Rocio had never been to the canal bank where the pool of blood was found. Finally, Rocio admitted that she kept a "Marvin the Martian" doll and poster in her bedroom, and it was her favorite cartoon character. She had never seen the "Marvin the Martian" paper recovered from the bag of burned items, but admitted that she kept some of her "stuff" at appellant's house. She did not know anything about the bag of burned clothes and papers found in Terra Bella, denied any of the contents belonged to her, and denied that she helped appellant or anyone else burn evidence in this case.*fn11
Rocio further testified that she had previously pleaded no contest to being an accessory after the fact (§ 32), her bail was reduced, and she was out on bail while awaiting her sentencing hearing. Rocio did not know if she was "getting a deal" and did not know what to expect, but she was "here to tell you what I know so I can get out of this mess."
Additional Trial Evidence
Jose, an inmate serving a life term for murder, testified as a prosecution witness about several conversations he had with appellant while they were in custody at the Tulare County jail in May 2001.*fn12 Jose testified appellant said he was in custody for killing a little girl, and told him "everything that happened that day of the murder." According to Jose, appellant said he wanted to do something crazy that day and "shoot all the southerners and the teachers" at his school. Instead, Yvette "drove up ... [and] they drove around for a couple of hours" and bought some drinks at the store. Appellant said he had a sawed-off shotgun with him. Yvette was driving, and appellant told her to drive out to the country. Appellant told Yvette to get out of the car. Yvette went to the back of the car at the trunk, and appellant told her to face away from him but toward the car. Appellant said she was crying and begging for her life, and he thought it was funny. He shot her in the back of the head while she was standing at the trunk of her car. Appellant said the shotgun blast knocked some of brain and skull matter on the car and he threw it away.*fn13 He put her body in the trunk, and drove to a car wash to clean the car.
Jose testified that appellant said he dumped the car, and his girlfriend and his brother followed him when he dumped the car. They also took him to Corcoran to hide out. Appellant told his brother to hide the shotgun. Appellant said he put his clothes in a trash bag and threw it in a dumpster. Jose testified he was not sure whether appellant said he dumped the car and/or the bag of clothes in Porterville or Terra Bella.
Jose testified he had been a prosecution witness in this case a number of times, no one from the district attorney's office made any promises in exchange for his testimony, and he did not obtain a better sentence in his own case. Jose explained that after appellant's first trial, it took two and one-half weeks for the sheriff's department to transfer him back to state prison, and he lost his cell and his prison job. In anticipation of the second trial, the sheriff's department promised to expedite his return to prison so he would not have the same problems. Jose wanted to testify against appellant because it was "the right thing to do" and Yvette was "somebody's daughter" and could have been "my little sister." Jose conceded he would be eligible for parole in 17 years, and his appearance in this case could be a "small factor" for the parole board to consider.
Jose admitted he knew Gerald Martinho, who was also in custody with him. Jose denied that he asked Martinho to back up his story about appellant. Jose was impeached with his prior testimony that he might have asked Martinho to back up his story, and that he was desperate. Jose also admitted that he contacted a sheriff's deputy in September 2001 about appellant's alleged confession, that it was after his own murder trial, and that he was trying to get a deal after his trial. Jose further admitted that he offered to testify in appellant's case "and a couple of other ones" involving other inmates, and that he had been housed in a unit "with nothing but murderers." Jose admitted that he told the deputy that he was willing to lie on the stand for the purpose of getting a deal. Finally, Jose admitted that he read about Yvette's homicide in local newspapers, but denied that he used such information for his testimony.
Gerald Martinho testified for the defense that he was in custody with Jose, and Jose asked him to "go along with a story" about appellant so Jose could get a deal in his murder case. Martinho testified that he knew nothing about the case and refused to help Jose. Martinho admitted he had two felony ...