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Gonzales v. Kirkland

March 23, 2009

ROCKY GONZALES, PETITIONER,
v.
R. KIRKLAND, RESPONDENT.



The opinion of the court was delivered by: Robert J. Bryan United States District Judge

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

This matter comes before the court on petitioner's petition for writ of habeas corpus. Dkt. 1. The court has considered the relevant documents and the remainder of the file herein.

INTRODUCTION

Petitioner is a state prisoner currently incarcerated at Pelican Bay State Prison in Crescent City, California. He filed this petition for writ of habeas corpus to challenge his 2003 Sacramento County conviction. Respondent filed an answer and relevant portions of the record. Dkt. 13 and 14. Petitioner filed a traverse. Dkt. 15. A review of the record shows that the claims do not warrant habeas relief. Accordingly, the petition should be denied and the case dismissed with prejudice.

PROCEDURAL AND FACTUAL HISTORY

Petitioner was charged by information in Sacramento County Superior Court with murder (Count one). (Pen. Code § 187, subd. (a)). The information also alleged that petitioner committed the offense for the benefit of a criminal street gang. (Pen. Code § 186.22, subd. (b)(1)). In conjunction with the murder count, the information also alleged: that a principal intentionally discharged a firearm, causing death (Pen. Code § 12022.53, subds.(d) & (e)(1)); that a principal intentionally discharged a firearm (Pen. Code § 12022.53, subds.(c) & (e)(1)); that a principal personally used a firearm (Pen. Code §§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (e)(1)); that a principal intentionally discharged a firearm, causing death (Pen. Code § 12022.53, subds .(b), (c), (d) & (e)(1)); and that petitioner was armed with a firearm (§ 12022, subd. (a)(1)). Count two charged petitioner with attempted murder (Pen. Code §§ 664, 187, subd. (a)) and alleged, among other charges, that petitioner committed the offense for the benefit of a criminal street gang (Pen. Code § 186.22, subd. (b)(1)). Count three charged petitioner with assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)) and alleged that petitioner committed the offense for the benefit of a criminal street gang (Pen. Code § 186.22, subd. (b)(1)).

Petitioner entered pleas of not guilty and was tried together with co-defendant Baca before two separate juries. The jury found petitioner guilty of second degree murder, guilty of attempted murder, and guilty of simple assault. The jury also found all the allegations in Counts one and two to be true.

The court sentenced defendant to 15 years to life on the murder count, plus 25 years to life for the section 12022.53, subdivision (d) (firearm) enhancement. The court sentenced petitioner to a determinate term of nine years for attempted murder, plus 25 years to life for the section 12022.53, subdivision (d) enhancement. The court sentenced petitioner to time served on the assault count. The total term was nine years consecutive to the indeterminate term of 65 years to life.

The California Court of Appeal summarized the facts of the case as follows: The Trial Since the focus of this appeal is the sufficiency of the evidence to support the judgment, we provide a rather detailed summary of the trial testimony.

Lee Ward, Vanessa Pineda, and Jesus Avila Lee Ward, injured by gunfire in the altercation, testified about the events leading up to the shooting. Ward and Garnica worked at Garnica's family restaurant. The day of the shooting, the duo left work at around 5:00 p.m. and walked to the nearby Quik Stop Market.

Vanessa Pineda, Garnica's girlfriend and the mother of their two children, also testified and corroborated much of Ward's testimony.

The afternoon of the incident, Pineda drove to the Quik Stop. She found Garnica, accompanied by Ward and another man, Jesus Avila, standing outside the market. Avila's testimony also corroborated Pineda's and Ward's versions of events.

Garnica gave Pineda money to buy liquor at the market. As Pineda entered the store, a burgundy pickup truck pulled up next to her car. Defendant drove the truck with Baca and John Medina as passengers. As Pineda left the store, defendant made a comment to Pineda to the effect of, "[D]amn, look at baby." FN3 (FN3: Defendant disputes that evidence at trial revealed him as the author of this comment. However, Avila identified the speaker as the driver of the truck; defendant drove the truck. Defendant contends Avila, on cross-examination, admitted he was not sure who made the comment. During cross-examination, Avila stated he was not sure who asked him "[W]hat's up." Avila did not retract his identification of defendant as the individual who made the comment to Pineda.) Medina made a statement about how pretty Pineda was. Garnica responded, "[S]hut up."

Medina and defendant approached Garnica and said, " 'What? Who's he telling to shut up?' " Garnica replied: " 'Nobody. I'm just saying that's my lady.' "

Medina then asked Garnica if he was a "scrap," a word used to describe a Sureño gang member. Garnica denied being a scrap. Ward pulled up his shirt to show Medina he was wearing a red belt. The red belt implied he was not a Sureño member. Ward wore the belt to protect himself against the Oak Park Bloods, who wore the color red.

Medina grabbed a bag with a bottle in it from Garnica and told Ward to back up. Defendant, standing next to Medina, told Garnica they did not know that Pineda was " '[his] lady.' " But defendant also cautioned Garnica, " '[B]ut you don't got to tell my homeboy to shut up.' " Medina told Garnica not to be " 'disrespecting,' " but since Garnica was not a scrap, everything was okay. Medina then handed the bottle back to Garnica. During this exchange, Baca ordered Avila not to move. Avila wanted to walk over to Garnica, but Baca warned him to stay where he was.

Ward reached for his cell phone, and Medina asked what he was grabbing. Ward told Medina he did not have a weapon. Someone, either Medina or defendant, said: " 'We'll shoot the whole fucking parking lot up.' " FN4 (FN4: Defendant claims Ward testified he could no longer remember who made the statement. To the contrary, Ward testified either defendant or Medina threatened to shoot up the parking lot.)

Pineda testified that Medina apologized to her before he left, and she saw Medina shake hands with Garnica. Avila testified defendant apologized to Garnica.

Medina, Baca, and defendant got back in the truck and drove away.FN5 (FN5: Defendant disputes any evidence supports the fact that Baca got into the truck. However, Ward clearly testified all three men-defendant, Medina, and Baca-got into the truck and drove away.) Ward told Pineda the men had shown her disrespect and were "talking shit."

Ward read off the license plate number, which Pineda wrote down. Ward testified Garnica removed a crowbar from Pineda's truck before she left. Garnica put the crowbar in his pants. Ward told Garnica he did not need it since Ward did not think there was a problem. After Pineda left, Avila drove away.

As Garnica and Ward walked down the street, they saw defendant and Medina approaching them on the other side of the street. Medina crossed the street and approached Garnica and Ward; defendant followed behind. Garnica told Ward those were the men who had confronted them at the market.

Medina walked up to Ward and punched him. Defendant fought with Garnica. Garnica fell to the ground. Ward then saw a third person approach and throw a bottle at Ward from approximately 10 feet away. This third individual was not Baca. Because Ward did not know the third person's identity, he failed to inform the police about his presence at the scene. Instead, Ward told the police the fighting involved only two men: defendant and Medina.

Ward turned and saw Medina kicking Garnica on the ground. Defendant also kicked and hit Garnica. Ward hit Medina in the face, turned around, and felt a bullet hit him on the left side. Ward did not see the person who shot him. Before the shooting occurred, the third man was out in the street.

As the wounded Ward ran across the street, he heard a second shot. He continued to run into a parking lot and heard a third shot.

Detective John Keller Detective John Keller interviewed Ward at the hospital the next evening. Ward testified the confrontation at the market involved three men, and the confrontation just prior to the shooting involved only defendant and Medina although a third person threw a bottle. However, Keller testified Ward was unclear about how many individuals participated in the second confrontation. Ward did not identify Baca as being at the scene and told Keller either defendant or Medina threw the bottle.

Ward described the man who threw the bottle as pudgy, Mexican, five feet six inches to five feet eight inches tall, 220 pounds, 27 or 28 years old, and wearing a tank top and long shorts with a tattoo on his chest or back. Ward testified the taller man was six feet three inches tall, Mexican, and weighed approximately 220 pounds. The third man outside the market was short and stocky, weighing 180 to 190 pounds, and muscular, with short hair, funny-colored eyes, tattoos, and wearing a tank top and long shorts. According to Keller, Ward described the third man as five feet 11 inches tall with a light-colored face.

John Medina John Medina, a friend of defendant and Baca, denied being a gang member. Medina admitted friendships with gang members. As a preteen, Medina wanted to be a member of the downtown Centro gang. Medina sympathized with the Centros. Medina testified he would confront anyone who disrespected a Centro.

Defendant never told Medina he belonged to a gang. However, Medina identified several photographs of defendant flashing hand signs indicating the number "14," a number associated with the Norteño gang. Medina observed defendant in the company of Norteño gang members. According to Medina, Baca was once affiliated with a Norteño prison gang and sports a gang tattoo on his chest.

Medina testified defendant came to his house the day of the murder. The pair left in defendant's truck, picking up Baca on the way to get something to drink. After arriving at the Quik Stop, the trio got out of the truck. Defendant spoke to Pineda while Medina went inside and bought beer. Medina heard arguing and defendant asking: "Who are you telling to shut up[?]"

Garnica and Medina shook hands and Garnica offered him a drink. Medina handed the bottle back because he does not drink hard liquor. Medina did not see Ward reach for a cell phone. Medina heard Ward say either "[P]op the trunk, get the gun" or "[P]op the trunk." Medina got into defendant's truck. He did not see Baca get into the truck.

Medina and defendant decided to drive to Baca's house to see if he was there. Baca lived near the market, but the pair failed to locate him. Medina and defendant decided to return to the market to look for Baca and buy more beer.

As Medina crossed the street he saw Garnica and Ward. Medina testified Ward began the fight by hitting him. Garnica jumped on top of Medina, and defendant told Garnica to get off. Defendant grabbed Ward and walked toward the street. Medina pushed Garnica off of him. Medina heard a gunshot and saw Garnica on the ground, moving around and mumbling.

Medina saw Baca approach and point a gun at Garnica's head. Medina asked Baca not to shoot, but Baca lowered the gun and it went off. Medina saw Baca fire the gun but did not believe Garnica had been wounded. Medina saw no blood.

Medina, admittedly hard of hearing, heard only two shots. Medina testified defendant left after the first shot. Baca and Medina left after the second shot.

The Garcia Family Dorothy Garcia was driving her family past the Quik Stop market when three shots rang out. Garcia saw three Mexican men and one black man standing together. The black man ran across the street. A Mexican man with red spots on his shirt staggered and fell. The other two men fled. Garcia's son and two daughters, also in the car, saw a Mexican man wearing tan pants and a white shirt lean against the fence and then fall. A black man ran across the street and fell in a nearby parking lot.

Two of the children saw three Hispanic men flee the scene; the other saw two or three men running. Garcia's daughter described the three men to an officer shortly after the shooting. One was a medium-sized male with dark hair, wearing a white T-shirt. The second man was slightly taller, with a medium build and braided hair pulled back, wearing a gray and black checked shirt and black pants. The third man was shorter than the other two, with a medium build, wearing a red T-shirt. One of Garcia's sons also described the three men. The first was an Hispanic male, five feet 10 inches tall, weighing 250 pounds, with a goatee and wearing a white T-shirt, dark pants, and a red and black hat. The second, also Hispanic, was approximately the same height, with short brown hair, wearing a white T-shirt and black pants. The third man, also Hispanic, was about the same height and wore a white T-shirt, dark pants, and a red hat.

Jessica Morales Jessica Morales, Baca's former girlfriend, testified she ceased living with Baca a couple of days before the murder and attempted murder. A shooting occurred at Morales's relative's house the day before the murder. In an interview, Morales told police she believed Baca was responsible. At trial, Morales testified she did not believe Baca was responsible but previously implicated him out of anger.

In September 2001 Baca got a small black revolver. Baca kept a box of bullets for the gun on the floor next to his couch. Baca generally left the gun at home and did not carry it on his person.

The shooting took place on September 28, 2001. On October 4, 2001, Baca called Morales at her brother's house. Morales testified that Baca did not tell her his location but gave her a long-distance phone number. Morales called Baca collect from a pay phone.

At the time of the phone call, Morales knew nothing of the Garnica murder. Morales knew Baca was a suspect in the shooting at her relative's house. Baca told Morales he was in "big trouble." Baca said he wanted to say goodbye because he was going away for a long time. Morales told Detective Keller that Baca told her he was in Big Bear. Morales advised Baca to turn himself in. Morales was unsure whether Baca belonged to a gang at the time of the murder. Morales told officers Baca was at one time a member of a Norteño gang, sporting a gang tattoo and wearing gang colors. Morales wanted to keep Baca away from his friends downtown.

Morales testified she was under the influence of marijuana when interviewed by police. She was unaware Baca had committed a crime until the police informed her.

Detective Keller searched Baca's apartment and found a live .32-caliber long bullet under the couch. The bullet bore the same caliber as the bullet removed from Garnica's body. Police arrested Baca in Big Bear.

Gang Expert

Police Detective Ronald Aurich is a street gang expert. Among Sacramento Hispanic gangs, two predominate: the Norteños, sporting red and cleaving to the number 14, and the Sureños, sporting blue and cleaving to the number 13. "Scrap" is a derogatory term for a Sureño. The tattoo "ENE" represents "Northern structure." Norteños pursue a plethora of criminal activities, including homicides, drive-by shootings, carjackings, and robberies.

Within the Hispanic gang culture, respect holds a prominent place. Status in the gang community is paramount, and members are sensitive to both verbal and nonverbal disrespect. Telling someone to "shut up" is such an expression of disrespect. Calling an individual a scrap would provoke a reaction 99 percent of the time. Even inadvertent disrespect by a non-gang member culminates in violence.

According to Aurich, Baca and defendant both belonged to the Norteño gang. Law enforcement employs eight criteria for identifying gang members: admitting gang membership, sporting gang tattoos or colors, associating with known gang members, involvement in gang-related crimes, being named by at least two gang members as a member of their gang, appearing in photos indicating gang affiliation, jail or prison correspondence reflecting gang affiliation, and field contact by police while participating in gang-related activities. Police identify as gang members individuals who meet at least two of those criteria.

Aurich noted defendant had an "XIV" tattoo on his chest and a "14" tattoo on his forearm. Defendant associated with gang members, and photos revealed defendant displaying Norteño gang signs.

Aurich believed the original dispute in front of the Quik Stop constituted a gang confrontation that escalated. When Garnica told Medina to "shut up," he committed an act of disrespect. Such disrespect inevitably results in gang retaliation. In the gang milieu, members back up fellow gang members and unite during a confrontation. A gang member loses respect if he fails to provide backup.

The circumstances surrounding the confrontation-the "scrap" comment, the escalation into a fight, the throwing of the bottle, and the concluding gunshots-were all an effort to solidify the street existence and status of the Norteño gang. According to Aurich, if a gang member is capable of shooting or assaulting people he does not even know, the act enhances the gang member's reputation in the community. The act frightens others and prevents them from reporting crimes to the police.

In Aurich's opinion, defendant committed the crimes charged for the benefit of, at the direction of, and in association with the Norteño street gang with the intent to promote criminal conduct by the gang members.

Aurich related an earlier attempted murder under similar circumstances. A member of the Oak Park Norteño gang was at a gas station when he called another patron a "scrap." The patron denied being a gang member and the Norteño shot him repeatedly.

Defense Case Juan Martinez testified he lived near the market and observed a fight on the day of the shooting. Martinez believed four or five men were involved. Martinez told police he saw five or six men. One man, wearing a white shirt, was punched and kicked by two men who Martinez believed might have been black. The other man ran away. Martinez heard three or four shots.

Martinez told police that one of the men who punched the victim drew a small black gun from his waist and fired two or three shots at the victim. However, at trial Martinez testified he did not see anyone with a gun. Martinez was afraid to testify, fearing retaliation. Martinez had been drinking on the day of the shooting and felt the effects of imbibing.

People v. Gonzales, 2004 WL 1950315 * 1-6 (Cal.App. 3 Dist.); Dkt. 14, Lodged Document No. 4.

Petitioner filed a direct appeal with the California Court of Appeal, Third Appellate District, which affirmed his conviction on September 3, 2004. Dkt. 14, Lodged Document 4. Petitioner's petition for review was denied by the California Supreme Court on November 17, 2004. Dkt. 14, Lodged Document No. 8.

On July 22, 2005, petitioner filed a state petition for writ of habeas corpus in the Sacramento County Superior Court. Dkt. 14, Lodged Document No. 9. On August 22, 2005, the petition was denied. Dkt. 14, Lodged Document No. 10. The decision of the Superior court will be addressed below as it applies to petitioner's claims in this federal habeas corpus action. On September 27, 2005, petitioner filed a petition for writ of habeas corpus with the California Court of Appeal. Dkt. 14, Lodged Document No. 11. On October 6, 2005, the petition was denied. Dkt. 14, Lodged Document No. 12. On November 7, 2005, petitioner filed a state petition for writ of habeas corpus with the California Supreme Court. Dkt. 14, Lodged Document No. 13. On August 16, 2006, the California Supreme Court denied the petition. Dkt. 14, Lodged Document No. 14.

On December 11, 2006, petitioner filed this petition for writ of habeas corpus. Dkt. 1. The court has carefully reviewed the entire record in this case.

CLAIMS

Petitioner raises twelve claims in his petition, which are quoted as follows:

1. Petitioner's convictions for second-degree murder and attempted murder perpetrated by his co-defendant, as a natural and probable consequence of a breach of the peace in which the co-defendant was not the perpetrator, lacked evidentiary support that petitioner intended to aid his co-defendant in his ultimate non-target crimes, in violation of petitioner's federal rights to a fair trial and to due process of the laws.

2. There was insufficient evidence that petitioner's convictions of second-degree murder and attempted murder were the natural and probable consequence of any disturbing/breach of the peace.

3. There was insufficient evidence to support that petitioner's convictions for second-degree murder and attempted murder were the natural and probable consequence of petitioner's assault on the victim Garnica during the sidewalk fight.

4. There was insufficient evidence to show that petitioner knew that his co-defendant had a gun and specifically intended to assist in the commission of co-defendant's crimes of murder and attempted murder.

5. Petitioner received ineffective assistance of appellate counsel.

6. There was insufficient evidence to support the gang allegation under Penal Code § 186.22.

7. Petitioner was denied his right to fair notice in which to defend against the crime of disturbing the peace and its use as a target offense under the theory of aiding and abetting.

8. Trial counsel was ineffective for failing to ensure that the jury had reached a finding on "disturbing the peace" before it could be relied ...


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