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Ortega v. Evans

April 22, 2009

DANIEL JUSTIN ORTEGA, PETITIONER,
v.
EVANS, WARDEN RESPONDENT.



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.

RELEVANT HISTORY

Following a jury trial in the Fresno County Superior Court, Petitioner (along with co-defendants Jesus Lopez and Daniella Dyer) was convicted of first degree murder (count 1; Cal. Pen. Code*fn1 § 187) of Donald Jamison "DJ" Hunter. The special circumstances that the murder was committed during the commission of robbery, kidnapping, and carjacking (§ 190.2(a)(17)(A), (B), (C)) were found true. It was also found true that Petitioner was armed with a weapon (§ 12022(a)). Petitioner (and the co-defendants) was also convicted of robbery (count 2; § 211) while armed with a weapon (§ 12022), and kidnapping (count 3; § 207).

On June 17, 2004, Petitioner was sentenced to life imprisonment without the possibility of parole.

Petitioner filed a timely notice of appeal. On March 12, 2007, the California Court of Appeal, Fifth Appellate District, modified Petitioner's sentence, but affirmed the judgment in all other respects.

The California Supreme Court denied review.

Petitioner filed the instant federal petition for writ of habeas corpus on June 9, 2008. Respondent filed an answer to the petition on March 5, 2009. Petitionerdid not file a traverse.

STATEMENT OF FACTS*fn2

FACTS

On March 21, 2002 19-year-old D.J. left his home in Fowler at approximately 6 p.m. He was driving his 2000 pickup truck. The car had been fixed up, including custom wheels and a stereo system. D.J. spent the evening at the home of his friend Carlos Rodriguez. They watched television, had a couple of drinks and at one point went out to get some food. D.J. had $5 in cash at that time. D.J. left to return home at approximately 1 a.m.

Paul Bedrosian, a friend of D.J.'s, was driving home on March 22, 2002 at approximately 1 a.m. He saw D.J. driving in his truck by himself. He waved to D.J.

Testimony of Ramiro Roman

Ramiro Roman agreed to plead guilty to one count of robbery in exchange for his truthful testimony against the defendants.

Roman was living in the back room of his family's home on March 21, 2002. Alfred Cruz came over during the afternoon. They smoked some marijuana together. Over the telephone, Roman spoke to Delores Cruz, his girlfriend and Alfred's sister, at approximately midnight. As Roman left his house to walk over to Delores house, he saw Dyer at the corner of the carport. Dyer asked for Roman. Roman replied that he was Roman. Dyer said that Lopez needed him out front. Roman returned to his room and called Cruz to come out also and see what Lopez wanted.

Lopez was in a truck with Dyer. Roman asked Lopez where he got the truck. Lopez said it was his. Roman did not believe him and again asked him where he got the truck. Lopez responded, "I jacked it." Lopez told Roman that the victim was in the bed of the truck under the truck bed cover, but Roman did not believe him. Roman said he was leaving and he would be back.

Roman met Delores. He told her about the stolen truck and they walked back to his house. When they arrived, Lopez and Dyer were outside by the bed of the truck; Cruz was in Roman's room. Roman told Lopez and Dyer to leave because his mother was home. Lopez said he was waiting for someone and then they would leave. Delores went to the back room.

Roman looked in the truck. Roman tried to work the hydraulics on the truck. Roman told Lopez that if they were going to be there for a while, he was going to move the truck. Roman moved the truck away from the house. Roman told Lopez and Dyer he was going to take the stereo out of the truck. Lopez did not want Roman to take anything or mess up the truck. Roman went to his room to get tools and gloves to remove the stereo.

Cruz looked through the truck while Roman removed the stereo and amplifiers. Roman took the items to his room and hid them in the basement. Lopez said he was going to come back and get the speakers.

Lopez handed Roman D.J.'s wallet. Roman looked through it and threw identification and other papers into a barrel. During the course of the evening several of those present used Roman's portable home phone.

Roman asked Lopez where the other people were, since it had been one or two hours since Lopez arrived at Roman's house. The others arrived in a light blue van. Those in the van included Martin Castro, Jose Romero, defendant Ortega and one other person.*fn3 The group left with Dyer, Ortega, and the unidentified person in the truck. The others followed in the van. Roman and Cruz stayed at Roman's house.

Lopez called at approximately 6 a.m. that morning. Roman asked him what happened to the owner of the truck. Lopez said he "ate dirt." Lopez came over a couple of days later to get the stereo speakers. Lopez did not know that Roman had switched the stolen speakers with cheaper speakers. Roman kept the stolen speakers for himself. Roman burned the items he had removed from D.J.'s wallet.

Testimony of Alfred Cruz

While being tried in a separate and earlier proceeding for the murder of D.J., Cruz agreed to plead guilty to one count of robbery in exchange for his truthful testimony against the remaining defendants.

Cruz was at Roman's house watching television on March 21, 2002. Roman left sometime around midnight to get Delores. Roman came back about 45 minutes later and then left again. Roman said there was someone outside. Lopez and a female, Dyer, were outside in a nice truck. Cruz asked Lopez where he got the truck and Lopez said he "jacked it." The keys were in the ignition. Lopez asked to use the telephone to call Martin Castro. Lopez told Castro to come to Roman's. Lopez told Cruz ...


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