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Vasquez v. McDonald

February 1, 2010

JOSE FRED VASQUEZ, JR., PETITIONER,
v.
MIKE MCDONALD, WARDEN, HIGH DESERT STATE PRISON, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DISPOSITION

Petitioner, Jose Fred Vasquez, Jr., a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Vasquez is currently in custody of the California Department of Corrections, incarcerated at the High Desert State Prison in Susanville, California. Respondent has answered.*fn1 Vasquez has filed a traverse.*fn2

I. FACTUAL BACKGROUND

The following factual background is taken from the reasoned decision of the California Court of Appeal in this case:

A.G. had a boyfriend-and-girlfriend relationship with [Vasquez] beginning in September 2004. She claimed she ended it in January 2005 because [Vasquez] was controlling. Other witnesses testified she continued to be with [Vasquez] that spring.*fn3

[Vasquez] could not accept the breakup of the relationship and continued to follow A.G., leave threatening phone messages, and engage in several acts of violence. On March 30, 2005, A.G. ran into [Vasquez] at Long's Drugstore. He wanted to talk to her and waited outside. She ran away from him and he followed her in his car. She had to jump into the bushes to avoid being hit. A.G. ran to the office of the apartment manager. [Vasquez] followed; he was angry and yelling and had to be restrained. [Vasquez] was so angry he broke the sunroof on his car.

A.G. moved in with her son. [Vasquez] continued to call and would wait in front for her. Concerned for the safety of her son's family, A.G. moved again. She moved in with a friend, Jack Lowas.

On September 28, there was an incident where [Vasquez] came over and threw a sewer grate at the fence. A.G.'s father called the police and let them listen to the threatening messages [Vasquez] had left on his phone.

Another time [Vasquez] followed A.G. while she was driving Jack's truck. At a stop light, [Vasquez] got out, broke the window on Jack's truck and told A.G. that Jack's blood was on her hands. When she got home, Jack was injured and on the ground. He was bedridden for three weeks.

In early October, [Vasquez] went to Jack's home and called A.G. out. He told her he would kill her if she did not leave with him. She kicked him in the groin and got away. [Vasquez] then broke seven windows in the house. A.G. went to the police that evening and played some of the threatening messages from [Vasquez].

On October 13, A.G. was at Jack's home with some other women. [Vasquez] called, angry. Another woman took the phone and argued with [Vasquez]. [Vasquez] came over and continued to argue with that woman, saying he would blow up the house. They then saw a fire on the side of the house and [Vasquez] sped off. When the police arrived, there was the smell of gas in the air and burnt grass. The police found remnants of a Molotov cocktail at the scene and a gas can in [Vasquez's] car.

The prosecution also offered evidence of [Vasquez's] prior acts of domestic violence. R.M. testified she lived with defendant from May until August 1996, when she moved back home. When she returned to pick up her clothes, [Vasquez] choked her. He came over to her parent's home, claiming they had dinner plans. R.M. went outside to talk to [Vasquez]; she told him she did not love him anymore. [Vasquez] said she was wrong. He told her not to call anyone in the house because he had a gun. The next thing she knew, she was by the flower bed. [Vasquez] had hit her, leaving a scar from her elbow to her wrist. Her father, E.S., came out and [Vasquez] hit him. E.S. lost consciousness and later had surgery for his eye socket and jaw.

The parties stipulated that [Vasquez] was convicted of the offenses against R.M. and her father.*fn4

II. BACKGROUND/ PRIOR PROCEEDINGS

On June 15, 2006, the district attorney filed second amended information number 05F09063, charging Vasquez with, in counts one and four, stalking (Cal. Penal Code, § 646.9(a)2); in count two, assault with a deadly weapon (Cal. Penal Code, § 245(a)(1)); in count three, battery on a person with whom defendant has a dating relationship (Cal. Penal Code, § 243(e)(1)); in counts five through eight, making criminal threats (Cal. Penal Code, § 422); in count nine, vandalism (Cal. Penal Code, § 594(a)); in count ten, attempted kidnapping (Cal. Penal Code, §§ 664/207(a)); in count eleven, possession of an explosive device (Cal. Penal Code, § 12303.3); and in count twelve, arson (Cal. Penal Code, § 451(d)).*fn5 As to count four, the information alleged that a temporary restraining order was in effect that prohibited the charged conduct.*fn6 ...


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