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Werth v. Yates

September 22, 2009


The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge


THIS MATTER comes before the Court on Petitioner's Petition For Writ of Habeas Corpus. (Ct. Rec. 2.) Petitioner is represented by Charles M. Bonneau, Jr. Respondent is represented by Carlos Antonio Martinez.


At the time his petition was filed, Petitioner was in custody of the Pleasant Valley State Prison in Coalinga, California pursuant to his 2002 Sacramento County conviction for murder committed in the course of burglary and attempted robbery, two counts of attempted murder, and various firearm allegations. See Lodged Doc. (Lodg. Doc.)

1. The court sentenced Petitioner "to a term of 18 years, 2 months, consecutive to 25 years to life (two terms), consecutive to life without possibility of parole in state prison." (Ct. Rec. 2 at 2;) see also Lodg. Doc. 1 at 1492-93. Petitioner challenges his 2002 Sacramento County conviction. (Ct. Rec. 2 at 7.)

I. Factual History

The California Court of Appeals described the facts of this case as follows:

Because we view the evidence in favor of the judgment (People v. Staten (2000) 24 Cal.4th 434, 460), we will not provide an exhaustive summary of the testimony of every witness or relate every evidentiary conflict. We also will not detail the potential bias on the part of the witnesses, as this was for the trier of fact. Nor will we distinguish which evidence was admissible as to which defendant since, with the one exception noted above, neither defendant claims that the juries were privy to improper evidence. As the cast of characters for the narrative is extensive, we will impart clarity through labeling them by their roles rather than name; this also preserves the privacy of the inculpable (or less culpable).


A Fair Oaks residence [hereinafter referred to as the "Salmon house"] was the longtime home of the owners and their two teenaged children. The family members were backyard marijuana cultivators. In October 1998, there were about a dozen plants that were between four and 10 feet tall.

While in the back yard of the house on October 5, 1998, the homeowners' son and a friend heard people break down the front door and claim to be members of law enforcement. The friend fled over the fence to a neighboring home, where he called two more mutual friends to come get him. When the two arrived about 15 minutes later, the three of them did not see any indication that law enforcement was present and concluded that it had been a robbery. Searching the home, they found the son incoherent with a bloodied head. Plants were gone. They took their injured friend to the hospital where his mother was a nurse.

The homeowners' daughter[, Jennifer Salmon,] came home from school to find the front door broken open. After neighbors and others explained what had happened, she thought it would be prudent to clean up the house and remove the remaining crop with the assistance of her brother's friends. They took the uprooted plants in two truckloads to another residence. When her father came home, they went to the hospital to see her brother for a couple of hours. They came home and had a late supper of spaghetti with the brother's friends, and shared some marijuana. The mother called about midnight and asked the father to join her at the hospital to help calm their son. The father asked his son's four friends to stay with his daughter to watch over her, then left for the hospital. One of the friends went home at his mother's prescient request. [Jennifer Salmon, t]he daughter-soon to be one of the attempted-murder victims-fell asleep on the sofa while watching a movie with [Riley Haeling,] the murder victim[,] next to her. The other attempted-murder victim[, Shawn Pollard,] had gone to sleep in the son's bedroom. The third friend slept in the daughter's bedroom.

A loud noise awakened the surviving occupants of the home. [Jennifer] saw [Riley] come skidding back into the living room. He had apparently kicked open the door to the son's bedroom to alert the other attempted-murder victim that someone was trying to break into the house. As the latter went groggily to the bedroom door, he saw a familiar figure run toward the living room before he himself ran across the hall into the master bedroom (where he knew there was a shotgun). The third friend awoke in the other bedroom to the sounds of shouts; he immediately rolled out of bed onto the floor.

Almost simultaneously with [Riley's] return to the living room, two men came through the front door. One remained in the living room while the other ran past the murder victim toward the back of the house. [Riley] stood with his hands up; sitting on the sofa, [Jennifer] did the same. The intruder in the living room pointed a gun at them and asked, "Where is it at? Where is it at?" They denied any knowledge. [Jennifer] heard a gunshot from the back of the house. The second intruder came running back screaming, "I got him, dog. I got him. Let's get out of here. Let's go."

In the master bedroom, the attempted-murder victim had grabbed a shotgun and some shells, but found that the shells were the wrong size. Meanwhile, one of the intruders entered the room, pointed a revolver at him, and directed him to get on the floor. Bluffing, the attempted-murder victim cocked the shotgun and pointed it at the intruder. The intruder fired one shot at him; the shot missed, but the victim fell to the floor and feigned being wounded. The intruder left the room, shouting something. The attempted-murder victim ran out a sliding glass door to the back yard. He jumped over the fence to the front but did not see anything. He ran to a neighbor's house, who told him that she had already called 911.

[Jennifer] was in shock when she heard the shot. The murder victim was edging his way toward her. She must have screamed, because the intruder standing watch over them told her to shut her mouth. She heard his gun go off, and threw herself on the sofa. Bullets penetrated the calves of her legs and her torso. As she covered her face, she saw [Riley] moving toward her. A volley of gunfire followed. She heard someone screaming to call 911. Realizing that she was not badly wounded, she called 911 on the phone while she went to see whether someone had been shot in the back of the house.

The third friend, in the relative safety of the daughter's bedroom, had heard "people say like, get that mother fucker, shoot that mother fucker, get them dog ..., stuff like that" interspersed with gunfire. There was silence after the sound of footsteps running toward the front door. He heard someone press three numbers on a phone, which he assumed was a 911 call. He came out of the bedroom, grabbed the shotgun from the floor of the master bedroom, and walked to the front of the house. He saw the daughter on the ground with her back to the wall, talking on the phone. She was bleeding. She asked him to speak to the operator, and told him that the murder victim was badly injured.

The murder victim died from his wounds. The bullets that were still in his body could not have inflicted the amount of damage associated with a piercing wound. However, there were casings and ejected live cartridges from a more powerful weapon both inside and outside the residence.

The daughter assisted with preparation of a police sketch of the intruder who had been in the living room with her and [Riley Haeling]. Based on the sketch, the authorities prepared two photo arrays. The person she identified in the second array[, David Quindt,] was tried for the crimes. She repeated her identification of him at trial. A jury convicted him in November 1999. [Anthony Salcedo, a co-defendant in the first prosecution, received a mistrial following the introduction of inadmissible evidence. John Anderson, a witness in the Salcedo trial, testified that Salcedo communicated certain things that implied Salcedo was involved in the crimes. However, Anderson did not remember the confession when he testified at Petitioner's trial and claimed that Salcedo never told him he was involved in the crimes. Lodg. Doc. 7, at 1149-52.]


After the conviction of [David Quindt], Bryan Lutz called the prosecution and told them that the wrong defendants were in custody, and that an entirely different group of people were involved. He was interested in compensation in the form of the dismissal of over a thousand dollars in traffic fines. The prosecution also agreed to dismiss some misdemeanors and to recommend he receive a share of a reward fund that the family of the murder victim had established. The prosecution dismissed all charges against the wrong defendants after further investigations that led to the present co-defendants.

Through its investigation, the prosecution collected the statements of a number of people that connected the co-defendants with the crimes. We will extract the salient details from each of them.


We begin with the two Iago figures of the piece: Lutz and his lifelong friend (and principal in drug sales) [Kelso Vidal], a cousin of defendant Werth [sic.]. Lutz had learned of the marijuana cultivation at the Fair Oaks residence. Over the course of a week, he pestered Werth's cousin to help find someone who would appropriate the crop. Lutz eventually was able to recruit two thugs, who committed the first robbery of the home.

After the robbery, the two thugs called defendant Werth's cousin[, Kelso Vidal,] and asked if he was interested in purchasing marijuana. Before they arrived, the cousin called Lutz and determined that the pair were trying to cheat Lutz out of his cut for arranging the transaction; Lutz also suggested that he and the cousin could get it more cheaply from the Fair Oaks source. The thugs arrived, producing a paper bag three-fourths filled with what appeared to be recently harvested marijuana. They claimed to have stolen it from a back yard; the two homeowners had caught them in the act, but they had severely injured them. There was still a large amount of the crop remaining in the back yard, and the two thugs believed the homeowners were now hospitalized and no one would be home. They did not want to go back themselves because they had already been involved in a fight at the home. Defendant Werth's cousin declined to purchase the contraband. The two thugs left as the cousin got ready for work.

After the departure of the thugs, the defendant's cousin phoned Lutz to tell him that he had not bought the marijuana from them. When he got home from work, he called defendant Werth to see if he wanted to help appropriate the rest of the crop. He told defendant Werth that the home was apparently empty for now and one could just jump over the fence to get the plants. He also told defendant Werth that he did not think a gun would be needed. The cousin suggested bringing a couple of extra people to help transport the crop and keep watch. Defendant Werth said he would try to find someone. Because he did not himself know the address, the cousin called Lutz again for directions. The cousin relayed this to defendant Werth, who mentioned that he had found people to accompany him. The cousin anticipated that he would get a 10 percent share of the haul.

A few months before the crimes, the cousin had sold a gun to defendant Werth of the same caliber as the casings and bullets retrieved at the crime scene. He had also seen defendant Werth with a revolver of some sort.

On the day after the shootings, the co-defendants came to the cousin's home and discussed the bungled attack on the residence. Defendant Werth told him that they had gone to the residence with a coparticipant named John. Defendant Werth had the gun he had bought from his cousin; defendant Trujillo had his other gun. They looked in the back yard when they arrived, but did not see any of the crop left. They pushed open the front door and found three people on the sofa. Their coparticipant struck one of them with a flashlight and demanded to know where the crop had gone. Defendant Werth went into a bedroom, where someone pointed a shotgun at him. Defendant Werth fired at him and thought he had killed him. He ran back to the living room. When one of the occupants advanced on him, he panicked and shot at him and a girl who was screaming. Defendant Trujillo also mentioned firing his gun at a man when he heard the shot in the back of the house and again when the girl was screaming.

Defendant Werth later accused his cousin of trying to set him up. However, at a family function some time afterward, defendant Werth handed his cousin a cloth wrapped around what felt like a five-inch metal bar and asked him to get rid of it. The cousin assumed it was a gun part. He threw it in Lake Natoma.

The cousin moved to Santa Barbara in January 2000. Lutz called him several times discussing the investigation. These were recorded "pretext" calls made on behalf of investigators. The cousin phoned defendant Werth's now-wife (defendant Werth was in Youth Authority custody at the time) to warn her that it would only be a matter of time before authorities followed the trail from Lutz to the others involved in the crimes.


John Fjelstad was the coparticipant in the crimes with the defendants. At the time of the crimes, he was on bail for another homicide. In exchange for his testimony, he was allowed to plead to voluntary manslaughter for both homicides, with a prison term of 19 years.

Defendant Trujillo was his good friend, who phoned him on the night of the crimes to say there was marijuana available for the taking. The two defendants came to his house, and defendant Trujillo convinced him to participate. They drove to defendant Werth's apartment, where they phoned the defendant's cousin for the address and made their plans. The defendant's girlfriend was not home.

On the way to the Fair Oaks home, [Fjelstad] noticed that defendant Trujillo had a gun. When they arrived, defendant Trujillo jumped the back fence; on his return, he reported that no plants were left in the back yard, and that he saw someone watching television. At this point, they decided to confront the occupants and force them to reveal the location of the marijuana. By now, [Fjelstad] noticed that defendant Werth had a gun as well.

In [Fjelstad]'s version of the chronology, he had remained in the living room questioning the two occupants while both defendants went to the back of the house. He heard a shot. He ran to the front door. Behind him, he heard a shot. The murder victim was moaning in pain, and it looked as if defendant Werth had shot at him, but [Fjelstad] did not see the shooting. When he got out the door, he heard additional gunfire. The defendants were about 20 seconds behind him. As they fled the scene, defendant Werth mentioned that he had fired on someone in the bedroom who had aimed a shotgun at him, but did not discuss the shootings in the living room. Defendant Trujillo admitted shooting at the murder victim, with bullets passing through him that hit the girl.

Defendant Werth dropped them off near his apartment before parking the car. They arrived at defendant Werth's apartment shortly afterward. Defendant Werth's girlfriend was present. She did not ask any questions, but [Fjelstad] thought she was suspicious that something had happened. Defendant Werth told her to mind her own business and get in the bedroom. The defendants had their guns when the three left to drive defendant Trujillo and [Fjelstad] back to their homes.

Before [Fjelstad] made a statement to the prosecutor, he had the opportunity to read defendant Trujillo's confession. While [Fjelstad] and defendant Werth were awaiting trial, [Fjelstad] sent the latter a letter in which he admitted that he would be accepting a deal from the prosecution, and in which he claimed telling investigators that defendant Werth had not been present at the crimes; however, they were interested only in having consistent statements rather than the truth. [Fjelstad] was concerned about being known as a snitch during his lengthy prison term, and wanted to give defendant Werth a defense.


On his arrest, defendant Trujillo initially maintained his innocence. However, he confessed his involvement two days later. His jury heard a transcript of the interview.

Trujillo stated that defendant Werth called him. Since they did not get along that well, defendant Werth asked him to come over so that Trujillo's sister (who was living with Werth and later married him) could talk to him. Defendant Trujillo asserted that his sister did not have any knowledge about what was being planned. Defendant Werth picked him up. After they arrived at defendant Werth's apartment, Werth's cousin called with information. Defendant Werth provided guns for the two of them. They went to the home of [Fjelstad], where defendant Trujillo talked him into assisting them.

Upon their entry into the Fair Oaks home, defendant Trujillo and [Fjelstad] remained in the front room, while defendant Werth went to the back of the house. Defendant Trujillo heard a shot. Defendant Werth came back and started shooting at the murder victim. In fleeing, defendant Trujillo also fired shots at the occupants. When they arrived at defendant Werth's home, the latter was talking to his girlfriend, who had been asleep in the bedroom. After defendant Werth dropped him off at his home, defendant Trujillo broke down in tears and told his girlfriend what had happened.

The next day, they went to the cousin's home. Defendant Werth described shooting at the man in the bedroom and the murder victim. He exaggerated the extent to which defendant Trujillo had been shooting at the occupants.


Defendant Trujillo's sister[, Guadalupe ("Lupe") Trujillo,] lived with Defendant Werth from December 1997 until his arrest on a juvenile parole violation in ...

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