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Romero v. Barnes

July 7, 2009

GERARDO ROMERO, PETITIONER,
v.
G.L. BARNES, 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.

BACKGROUND OF CASE

Following a jury trial in the California Superior Court for the County of Kern, Petitioner was convicted of attempted premeditated murder in which he personally discharged a firearm (Cal. Penal Code*fn1 §§ 187(a), 189, 664, 12022.53(c); count 1) and assault with a firearm with personal use of a firearm (§§ 245(a)(2), 12022.5(a)(1); count 2), both were found to have been committed for the benefit of a criminal street gang (§ 186.22(b)(1)). In a bifurcated court trial, it was found true that Petitioner suffered a prior juvenile adjudication within the meaning of California's Three Strikes law. (§§ 667(c)-(j), 1170.12). 2 CT 464; 7 RT 1247-1248.

On December 12, 2006, Petitioner was sentenced on count 1 to life in prison with the possibility of parole, with a minimum parole eligibility date for 30 years (15 years, pursuant to § 186.22(b)(5), doubled for the strike), plus 20 years for the firearm enhancement. The sentence on count 2 was stayed pursuant to section 654. 7 RT 1257-1258.

On April 29, 2008, the California Court of Appeal, Fifth Appellate District, affirmed the conviction and judgment. (Lodged Doc. No. 6.) The Court of Appeal denied Petitioner's motion for rehearing on May 14, 2008. (Lodged Doc. No. 5.)

Petitioner filed a petition for review in the California Supreme Court, which was denied on August 18, 2008. (Lodged Doc. No. 18.)

Petitioner filed the instant federal petition for writ of habeas corpus on January 26, 2009. Respondent filed an answer to the petition on April 27, 2009. Petitioner filed an untimely traverse on June 22, 2009.*fn2

STATEMENT OF FACTS*fn3

From 1993 to 1997, Christopher Gabriel "Jug" Contreras was a member of the Wasco 13 gang, which was also known as Varrio Wasco Rifas. The gang participated in criminal activity, particularly assaults, thefts, and narcotics use and sales. Members did not like it when someone came into court and testified about the gang; they called it snitching, and it could get a person killed. Although Contreras was "jumped out" of the gang in 1997, he still knew people who were affiliated with it and socialized with a few of them.

On October 16, 2005, Contreras had an "Octoberfest" party at his house in Wasco. Ruth, Loza, a longtime friend of his, was one of approximately 50 people who attended. It was a somewhat dressy affair; guests had to wear black and/or white. Wasco 13 members, including appellant (who was known to Contreras by the moniker "Sniper"), Fernando Enriquez (who went by the monikers "Whopper" and "Ghost"), Danny Torres ("Rook-E"), and Epifanio Soto ("Popeye") crashed the party; Contreras asked them to leave because they were not dressed correctly and had not been invited. Although Contreras did not have harsh words with appellant and the others, things got out of hand, and at some point, Loza heard a gunshot in the backyard. Shortly after, members of the sheriff's department arrived. At Contreras's request, Deputy Fleeman told those who were not dressed correctly, including appellant and his companions, to leave.

On October 22, 2005, Loza held a belated birthday party at her residence in Wasco. The party was inside the garage, the door to which was open. There was a fire pit or smudge pot on the driveway. Some people, including Loza, were drinking.

By approximately 2:00 the next morning, the party had been going on for several hours. About eight to [ten] people were still in the garage/driveway area. They were sitting in chairs, talking. Some, including Contreras and Louis Penalber, who had had a minor dispute with appellant at Contreras's party a week before, had been drinking.

Three young Hispanic males walked past on the sidewalk and sort of started at the partygoers. Although no one said anything to them, the three yelled, "Wasco Sur 13," as they crossed the street, heading away from the house.*fn4 When either Albert Serna or Penalber said, "yeah, whatever, just keep on walking, just keep on walking," the three got angry, turned around, and walked back at a fast pace.

Contreras came out of the garage to try to control the situation before it got out of hand. He held up his hands and told the three - two of whom he recognized as appellant and Whopper - to calm down, that they didn't have a problem there.*fn5 As Contreras approached, appellant separated from his cohorts and moved toward him. Appellant pulled a small handgun from underneath his jacket or sweater, extended his arm, and pointed the gun at Contreras's face. Appellant then said "fuck you," and shot Contreras from a distance of approximately five feet, grazing his right cheek. Appellant's two companions ran, but appellant tried to chamber another round as he started toward the garage, where everyone was gathered. When the gun jammed, he also fled.

The sheriff's department was immediately called and officers arrived quickly. Deputy Bravo, the first on scene, found Contreras calmly standing, drinking a beer and laughing, although Bravo did not believe he was intoxicated. Contreras's cheek was still bleeding, but he told Bravo he did not need medical attention.

Bravo then asked Contreras to tell him what happened. Contreras said nothing had happened and that he would take care of it. Bravo could hearing people behind Contreras, telling him to say what had happened and who it was. Somebody pleaded with Contreras to tell Bravo it was Sniper.*fn6 Bravo was unable to get much information from Contreras that night; he kept walking away from Bravo as if he did not want to tell Bravo anything. Finally, about 20 minutes after Bravo arrived, Contreras said that three Hispanic males were walking by, started "dogging" those at the house, and continued walking. When they reached the intersection, one of them came running back, pulled a black .38 semiautomatic handgun, and shot at him. Contrears gave a description of the gunman.

Around this time, Deputy Haisey, who had been at the scene and then left, contacted Bravo and said he had two subjects stopped at a particular location.

Bravo took Contreras and Albert Serna in his patrol car to view the individuals. During the ride, Bravo did not ask Contreras again who shot him. Contreras and Serna said the two detained individuals were not involved. Bravo then took them back to Loza's house. He subsequently had to leave to respond to a call for assistance from another officer.*fn7

No one from the sheriff's department talked to Penalber or Loza that night. Loza did not come forward as she was scared the assailants had seen her and might return. Bravo tried telephoning Contreras several times the day after the shooting in order to obtain further information, but Contreras did not return his calls.

Three days after the shooting, Rook-E and Whopper came to Contreras's house. Rook-E said they were not there to disrespect, but that Contreras had better not snitch, or he would be dealt with. Angry and afraid, Contreras asked them to leave.

Bravo worked one shift following the shooting, then was off for three days. When he returned, he contacted Contreras's older brother, a member of the sheriff's department, because Contreras still would not return his calls. He also enlisted the help of Deputy Fleeman in assembling a photographic lineup. When he informed Fleeman that someone had mentioned the name "Sniper" on the night of the shooting, Fleeman identified Sniper as appellant, and so appellant's photograph was included in one of the photographic arrays.

On October 27, Bravo reached Contreras by telephone and told him that he wanted Contreras to view the photographs. Although Contreras refused, he informed Bravo that Loza and Penalber had seen who shot him. As a result, Bravo went to Loza's house that same day and showed her both displays. Loza said none of the people depicted in the one lineup were present. In the second lineup, however, she positively identified appellant's photograph. Bravo then went to Penalber's residence and showed him the same two displays. Penalber did not recognize anyone in the first one, but positively identified appellant's photograph in the second one.

On November 9, 2005, appellant placed a telephone call from the Kern County jail to "Larissa."*fn8 Partway through the call, appellant asked her to call Rook-E, which she did. Appellant asked Rook-E whether he had gotten hold of Jug and told his people not to go or just to say it was a misunderstanding. Rook-E replied that they had talked to Jug the day before, and that Jug had said to tell appellant to take it to trial, that he was not going to show up. Appellant also said there were two other witnesses, a male and a female, who had selected his picture. Rook-E asked appellant to get him a copy of appellant's paperwork so that he could get whoever was on there. Appellant replied that he was going to get the paperwork on Monday, but that he would be in a lineup that day and the man and woman would be there. Appellant said he did not know them and asked Rook-E to get hold of Jug and let him know to tell whoever talked to the police that it was a misunderstanding. When, after further conversation, Rook-E said that he and Ghost had talked to him the day before, appellant asked them to do it again and let him know to tell the people who talked to the police not to go or to deny everything. Rook-E told appellant not to "trip," and that he would call Ghost and let him know what was happening. He also said they had tried unsuccessfully to get the names of the other witnesses.*fn9

On December 5, 2005, appellant placed a telephone call from the Kern County jail to "Palmira."*fn10 Appellant claimed the police and witnesses were lying, then said, "But just with that vato says no, boom, they will dismiss." Appellant insisted he was not the perpetrator and said the witnesses differed on what the shooter was wearing. Appellant then mentioned someone he and Palmira knew, and how this person apparently shot someone, but the case was dismissed when the witnesses recanted their identifications. Appellant then mentioned Tony, and said he was going to "send the paper" of what the witness said.*fn11 Appellant said Tony needed to show it to the person so that the person would not change things. Appellant related that the person had come into the courtroom, but the prosecutor made him leave because he did not want to cooperate. After further conversation, appellant asked Palmira to let Tony know everything and tell him to talk to "that vato." When Tony Romero arrived during the telephone call, appellant informed him that he was going to send Romero the paperwork so that the "vato" would tell the same story. When Tony asked if the case was going to be dropped, appellant replied, "Yeah, just as long as that vato tell you guys ... [¶] ... [¶] ... you know."*fn12

On December 24, 2005, appellant placed a telephone call from the Kern County jail and spoke to Tony Romero.*fn13 Romero related that he had talked to the person on Friday. Appellant said he knew "that vato" did not want to be labeled as a snitch, but that there were two people "[i]n front of that problem" who were saying different things and that they saw what happened. Romero said he was going to call the person right then and wish him a merry Christmas. He told appellant that the person was not going to say anything. Appellant complained about what the woman was doing, but said it did not matter as long as the "vato" did not say anything. Romero informed appellant that the man's brother was a law enforcement officer in Shafter. When appellant asked where the brother worked, Romero said he thought at the courthouse, and that he was going to investigate everything that day and talk to the witness. Appellant agreed "that's the main shit," compared to the other two witnesses. Romero reiterated that he had talked to him and everything was "all cool," and that he was going to keep in touch with him. Romero assured appellant that "this shit out here" would "get handled."*fn14

On or about February 11, 2006, someone fired a shotgun at Penalber's house. Birdshot penetrated the window and blinds in his children's bedroom, where he had been sleeping. Penalber felt scared for his and his family's lives. Contreras learned of this incident the next day. This made Contreras fear what would happen to his own family if he testified. Contreras drew a connection between this shooting and Wasco 13, because some kind of retaliation was usually what happened when someone testified.

On March 12, 2006, Bravo went to Contreras's house to try to find out who actually named Sniper on the day of the shooting and, in light of the intercepted conversations between appellant and his brother, whether Contreras was going to testify. Bravo surreptitiously recorded his conversation with Contreras, who was still uncooperative and said he did not want anything done and should never have said anything. Bravo used a police tactic to try to get Contreras to admit saying it was Sniper, telling Contreras that Contreras had told Bravo it was Sniper. Contreras affirmed he had said it, although Bravo had no independent recollection of Contreras naming Sniper on the night of the shooting. Bravo never put anything in a report about someone saying it was Sniper on the evening of the shooting, because his sergeant would have kicked it back and said to find out who it was. Bravo tried to confirm the information in the days following the shooting, but Contreras would not answer his telephone calls. When Bravo returned from his days off, he consulted Deputy Fleeman concerning Sniper's identity.

Contreras first testified under oath about the shooting in May 2006. Even then, he lied about not remembering the person who shot at him. He was in fear for his family's lives because of what had happened at Penalber's house. It was bothering him, though, and he finally decided to identify the shooter a few days before trial. He felt he might be saving somebody else's life.

Deputy Fleeman testified as an expert on gangs. According to him, Wasco 13, also known as Varrio Wasco Rifas, had more than 40 members. Common symbols of the gang were 13, Sur, and VWR tattoos. In Fleeman's opinion, Wasco 13's primary activities were the commission of vehicle burglaries and narcotics sales, mainly methamphetamine. Fleeman discussed two predicate cases in which active Wasco 13 members committed burglary and narcotic sales, and opined, based on his prior contacts with appellant and training and experience, that appellant was an active gang member at the time of the shooting, as was Whopper. Fleeman further opined that the shooting was done for the purpose of furthering criminal conduct by Wasco 13 members and the gang. According to Fleeman, respect is very important to Hispanic turf gang members, and is the ultimate goal for a gang member. Gang members gain respect through violence, typically assaults. Fleeman opined that the comment from someone at the house to keep on going made the three perpetrators feel disrespected. The shooting let everyone in the area know not to disrespect Wasco 13 gang members. This furthered the gang by placing the community in fear of it. Additionally, the shooter's status was elevated within the gang because he actually committed a crime and shot someone. (Lodged Doc. No. 6, Opinion at 2-9, 2008 WL 1874521.) (Footnotes in original.)

DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to ...


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