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Tovar v. Gonzalez

August 26, 2009

JUAN OROZCO TOVAR, PETITIONER,
v.
FERNANDO GONZALEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder 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 Superior Court of the State of California, County of Fresno, Petitioner was convicted of attempted murder (Cal. Pen. Code*fn1 § 664/187(a)), assault with a firearm (§ 245(a)(2), and possession of a deadly weapon (§ 12020(a)). It was also found true that Petitioner personally inflicted great bodily injury as a result of discharging a firearm from a motor vehicle in the commission of the attempted murder and assault. (Lodged Doc. No. 1, at 70-73.)

On June 2, 2006, Petitioner was sentenced to nine years for the attempted murder conviction, plus a twenty-five-years-to-life enhancement under § 12022.53(d), to be served consecutively.*fn2 (Lodged Doc. No. 1, at 211-213.)

On August 8, 2007, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Lodged Doc. No. 3.)

On September 18, 2007, Petitioner filed a petition for review in the California Supreme Court, which was denied on October 24, 2007. (Lodged Doc. Nos. 4, 5.)

Petitioner filed the instant federal petition for writ of habeas corpus on September 29, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on December 30, 2008. (Court Doc. 13.) Petitioner filed a traverse on July 16, 2009. (Court Doc. 35.)

STATEMENT OF FACTS

On December 2, 2005, at approximately 1:48 a.m., Sheriff's Deputy Jeff Stricker arrived at Fresno Community Hospital to investigate a victim of gunshots. (RT 35-36.) He made contact with the victim, Juan Larios, and his wife, in the emergency room. (RT 36.) The victim appeared to be coherent and Deputy Stricker questioned him regarding the shooting. He was initially a little standoffish, but began volunteering information after he questioned the victim's wife. (RT 37.) Larios told Deputy Stricker that he was shot by his long-time friend Juan Tovar, at his residence on Simpson Avenue, and it occurred at approximately 1:00 a.m. (RT 38.) Larios told Deputy Stricker that he and Petitioner were having an argument outside his residence, and as he was leaning against Petitioner's truck, Petitioner picked up a gun, pointed it at him, and pulled the trigger. Larios was struck twice. (RT 38.) Larios stated that he did not "want to get [his] friend in trouble[.]" (Id.) He also stated "[Petitioner] is dangerous. When you pick him up, be careful. If he did this to me, who knows what he would do to someone he doesn't know[.]" (Id.)

While Larios was being treated at the hospital, a bullet fell out of his clothing, which was consistent with a .380-caliber hollow-point bullet. (RT 98-99.) The bullet had some small tissue within the hallow-point, consistent with going in and out of a person's body. (RT 99.)

At approximately 2:05 a.m. that same evening, Deputy Daniel Buie arrived at 4756 Simpson Avenue-the victim's residence, to collect potential evidence from the shooting. (RT 30-31.) Deputy Buie discovered a small pool of blood on the ground next to a brown Ford vehicle, and on the front porch outside the front door. (RT 31.) There was also a small amount of blood splattered on the interior wall next to the door on the east side of the residence. (Id.) In addition, there were drops of blood on the floor in the dining room and down the hallway. (Id.)

Police also discovered gun shell casing outside the residence which were consistent with a .380-caliber semi-automatic handgun. (RT 32.)

Petitioner was arrested later that morning at his residence, and officer's obtained a search warrant for the residence. (RT 54-55.) Deputy Mark Chapman made contact with Petitioner at his residence, and also spoke with his wife and 15-year-old daughter. (RT 55.) Petitioner denied any involvement in the shooting of Larios and told Deputy Chapman that he needed to look into Larios' financial background. (RT 87-88.) Deputy Chapman discovered that Petitioner was an ex-felon and prohibited from carrying certain types of weapons. (RT 57.) The following items were discovered during a search of the bathroom connected to the master bedroom shared by Petitioner and his wife: a magazine for a 9-millimeter semi-automatic handgun; a full jacketed hollow point 380 caliber live bullet, with a head stamp RP (Remington and Peters); an empty gun case; a fully jacketed 9-millimeter Luger bullet; and two nine-millimeter Luger round nose bullets. (RT 59-62, 64-66, 67-68.) Chapman believed that the .380-caliber bullet recovered from Petitioner's residence was consistent with the shell casings (same caliber and manufacturer) found outside Larios's house; however, forensic testing was not performed. (RT 90-91.)

There was a large cargo trailer in the backyard of Petitioner's residence, which was separated into two areas. (RT 63.) There were doors on the north and south sides of the trailer. (Id.) The north side consisted of several different types of tools. (RT 64.) The south side was set up with a desk, telephone, television, and stereo. (Id.) Petitioner's wife confirmed that Petitioner had access to the trailer. (RT 63.) A pair of brass knuckles was discovered on the south side of the trailer on a speaker attached to the entertainment center. (RT 62-63.) An empty gun holster with a belt clip was found in the north side of the trailer. (RT 66-67.)

Deputy Chapman interviewed Petitioner's wife regarding her activities on the evening of December 1, 2005. Mrs. Tovar indicated that she arrived home from work at approximately 8:15 p.m., and Petitioner left the residence just shortly thereafter between 8:30 and 8:45 p.m.. Mrs. Tovar said she went to sleep a short time later. She woke up between 1:00 and 1:30 in the morning to give her infant child a bottle. When she woke up, Petitioner was asleep in bed with her. (RT 108.) She did not see Petitioner from the time he left to the time she woke up in the early morning. (RT 108-109.) She indicated that Petitioner used to have a cellular telephone but it was disconnected. (RT 109.)

After completing the investigation at Petitioner's residence, Deputy Chapman returned to the sheriff's office and received a message from Larios's brother. (RT 69.) Deputy Chapman returned the call and arranged for the brother to bring Larios to the sheriff's department for an interview. (Id.) Later that same day, December 2, 2005, Larios's brother brought Mr. and Mrs. Larios to the sheriff's department. (RT 70.) Larios was released from the hospital earlier that morning and Deputy Chapman did not believe he was taking any medication. (RT 85.) Nor did Deputy Chapman believe Larios to be under the influence of drugs or intoxicated at the time of the interview.*fn3 (RT 85-86.) Deputy Chapman interviewed Larios in the interview room, while his wife and brother waited in the lobby. (Id.) The interview lasted approximately an hour to an hour and a half. (RT 73.) Larios told Deputy Chapman that he was shot by Petitioner. (RT 70-71.) Larios confirmed the identify of Petitioner from reviewing prior arrest and wedding photographs of him. (RT 71.) Larios stated that he and Petitioner had been friends their entire lifes. (RT 73-74.)

Larios revealed that he rented a bedroom at the residence he shared with his wife. A female named Fire resided in the bedroom some of time. Fire apparently "had a way of paying people's bills." (RT 75.) Approximately eight weeks before the shooting, Larios introduced Petitioner to Fire because Petitioner had an unpaid debt. (Id.) Apparently Fire never paid off the debt and Petitioner was upset. At one point, Petitioner told Larios that he was going to be held responsible for the debt since he introduced him to Fire. (RT 75.)

A problem later erupted when Larios agreed to allow three different women to use the empty bedroom at his residence. About a week before the shooting, Fire apparently moved some stuff into the bedroom and left about three days later, and was gone for a period of time. (RT 76.) During this time, Petitioner asked Larios if his girlfriend, Crissy, could stay in the room and he would forgive the debt. (RT 76-77.) Crissy stayed in the home for approximately five days prior to the shooting. (RT 77.) Petitioner would pick up Crissy, take her to work, and the two would return later together and stay in the room. (RT 77.) Larios became upset because he felt that Petitioner was using the room as a hotel room to have sex with Crissy. (RT 77-78.) On December 1, 2005-the day before the shooting-Monique who was pregnant by Larios's brother, asked if she could stay in the room. (RT 78.) Larios agreed to allow Monique to use the room, and he told Crissy she could stay in the house but Monique was going to use the room. (Id.) However, that same day, Fire came back and started to move some of her belongings back into the bedroom. (Id.)

Later that evening, between 8:00 and 9:00 p.m., Petitioner and Crissy arrived at Larios's residence and wanted to use the bedroom. (RT 79.) Larios refused Petitioner access to the room and Petitioner became angry. Larios told Petitioner that he would ask Fire if she would allow them to use the bedroom. (Id.) Petitioner and Crissy then left the residence, and returned about an hour later. (Id.) Larios informed Petitioner that Fire would not allow them to use the bedroom. (RT 79-80.) Petitioner wanted to take Fire from the residence and have her repay his debt. (RT 80.) Petitioner was upset and told Larios "You know what, I can't believe you put a bitch between us - - between our friendship." (RT 81-82.) Petitioner told Larios that he "owe[d] [him] a lot." (RT 82.) Petitioner told Larios "you really don't know. I'll be back." (Id.) Petitioner and Crissy then left the residence. (Id.) About ten minutes later, there was a knock on Larios's front door. (Id.) Monique's mother was at the door and told Petitioner that there were people in the front yard looking for "Tacho" (Petitioner's nickname). (RT 19, 82-83.) Larios walked outside and saw Petitioner seated in the driver's seat of his truck and Crissy was sitting next to him. (RT 83.) Petitioner was talking on the telephone as Larios walked up to the passenger door. (Id.) The window of the passenger door was down. (Id.) Petitioner finished the conversation, made a comment, then raised his right arm extended it across the cab of the truck toward the passenger side window where Petitioner was standing, and pointed a handgun at Petitioner's head. (RT 83-84.) The gun was approximately two feet from his head. (RT 84.) Larios ducked and moved toward the front of the truck. (Id.) However, he was hit twice by the gunfire, once in the arm and upper leg. (Id.) Petitioner continued firing the gun and then stopped and drove away. (RT 85.) Larios was driven to the hospital shortly thereafter by family members. (Id.)

At trial, Larios denied making any statements to sheriff's deputies implicating Petitioner in the shooting. (See RT 11-26.) Larios testified that he told a defense investigator that the things written in the police reports were untrue. (RT 22.) Larios acknowledged that he was shot in December of 2005, but stated he did not know who shot him. Larios testified that on the evening prior to the shooting, he had used "quite a bit" of crystal methamphetamine and drank "quite a bit" of alcohol. (RT 26.) The morning after the shooting he was in shock and a lot of pain. (RT 26.) Larios testified that he was not interviewed by Deputy Stricker at the hospital. (RT 14.) Larios denied telling Deputies Stricker and Chapman that Petitioner was the individual who shot him. (Id.) Larios denied knowing two females by the names of Fire and Crissy, and no one stayed at his home aside from his wife. (RT 12-13.) Larios acknowledged that he was interviewed by Deputy Chapman on December 2, 2005, however, he believed it took place at his home. (RT 15.) He did not recall going to the sheriff's department. (Id.) Larios acknowledged that Petitioner was at his home on December 1, 2005, from about 3:00 or 4:00 p.m., but he did not see him after that time. (RT 18-19.)

Larios acknowledged that he has broken the law in the past, but he would not lie to protect Petitioner and no one threatened him or his family. (RT 23.) Larios acknowledged he sold drugs in the past and there may possibly be people out there that would like to see him dead.

(RT 27.) Larios stated that he was good friends with Petitioner and his wife and there was no reason such ...


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