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.
Following a jury trial in the Fresno County Superior Court, Petitioner was convicted of second degree murder in violation of California Penal Code section 187(a)*fn1 , with personal use of a knife (section 12022(b)1) and for the benefit of a street gang (section 186.22(b)(1). Petitioner was also convicted of assault in violation of section 245(a)(1) with a gang enhancement (section 186.22(b)(1)). Petitioner was sentenced to three years for the assault with a deadly weapon plus an additional five years for the gang enhancement. He was sentenced to 15 years to life for the second degree murder conviction to run consecutive to the assault term with an additional one year for the weapon enhancement.
Petitioner filed a timely notice of appeal. On November 6, 2007, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 4.)
On December 7, 2007, Petitioner filed a petition for review in the California Supreme Court. (Lodged Doc. No. 19.) The petition was denied without comment on January 16, 2008. (Lodged Doc. No. 20.)
The instant federal petition for writ of habeas corpus was filed on January 13, 2009. Respondent filed an answer to the petition on June 3, 2009, and Petitioner did not file a traverse. (Court Doc. 19.)
On the evening of March 11, 2005, a birthday party was held for Duran. Rodarte and Bladimir Urbina exchanged words at the first party. Rodarte was a Sureno gang member and Urbina was a member of a rival gang, the Nortenos. The mother of the person giving the party came home and made everyone leave. The partygoers left and went to a second location to continue the party.
Although there was no testimony that defendant was present at the first party, C and G testified that they rode from the first party to the second party in a car with defendant and others.
There were about 30 people at the second party; most of them were males. Rodarte and Urbina exchanged words at the second party. Rodarte was called a "scrap," a derogatory term for a Sureno gang member. Urbina, defendant, and others were arguing with Rodarte in the house. Defendant was talking "smack" inside the house.
Several people called Rodarte a scrap. In addition, they yelled to take him down, to kill him, and to get him. Defendant was heard saying that he was "strapped" (a slang term for carrying a weapon), saying, "Let's get him," and "Let's take him down."
Several females and Duran led Rodarte outside so he could leave. As the females led Rodarte down the street, a group of males exited the house. They followed and continued to yell "scrap," "kill him," "get him," and "take him down" at Rodarte.
The group of males following Rodarte rushed him. Defendant was part of that group. Rodarte started fighting. Duran ran toward the group to help his brother. Rodarte was pushed onto a car.
C was the only witness who could identify the person who stabbed Rodarte. She saw defendant take a knife out of his pants pocket. Defendant was right in front of Rodarte when defendant "launched" his knife at Rodarte. Defendant held the knife in his left hand. The thrust of the knife was slightly up.
C was 100 percent sure at trial that defendant stuck a knife in Rodarte's chest.
Duran was fighting with two males. One of the two had a knife and stabbed him. Duran saw about five members of the group with knives. Someone yelled out that the "cops" were coming, and the fight broke up. Defendant walked away from the fight and said, "Remember who did it. East Side Reedley Norte. Remember who put him down."
A neighbor heard his dog barking violently. The neighbor ran outside with a bat and saw 10 to 12 people by his car fighting. The group was cursing and yelling "East Side Reedley," a gang name. The group moved away from the neighbor's car when he came out with the bat. The fight broke up and he saw four or five of the fighters run to a maroon four-door vehicle.
C testified that as defendant left the fight he held the knife in the air and waved it around. He said to Rodarte, "Remember who brought you down. It was me."
Rodarte walked away after the fight. He collapsed and died shortly thereafter. Rodarte was stabbed three times. The cause of death was perforation of the heart from a sharp cutting instrument. The wound to his chest was 1-1/2 inches in length and 4-1/2 inches in depth. The cut started at the skin, went through bone and then into Rodarte's heart. Rodarte also had a stab wound to his left arm and a stab wound to the left side of his back.
G and C were both shown photographic lineups. In the first photographic lineup, they each identified a photograph of defendant's brother as "Pacman" and as being involved in the fight that evening. After it was learned that defendant's brother was not present at the party that evening and that defendant's nickname was Pac or Pacman, another lineup was prepared containing defendant's photograph. G identified defendant's picture in the second photographic lineup as a person she saw involved in the fight that evening and thought he was the same person she had identified in the previous lineup. C realized she made a mistake in her identification during the first lineup after she saw the second lineup. She identified defendant's photograph as Pacman and as the person she saw stab Rodarte in the chest.
Defendant was interviewed at the police station. During the interview he repeatedly denied being at the party that night. After 48 minutes of questioning, he finally admitted being at the scene but claimed he was hit in the back of the head after he exited the house. After he was hit in the back of the head, he got in a car and left. He denied going down the street in the group that followed and then rushed Rodarte.
James Lyman, an expert on criminal street gangs. testified that the East Side Reedley Nortenos is a criminal street gang and that defendant is a member of that gang. He testified that Rodarte was a member of the Surenos, a rival gang of the Nortenos. Lyman testified regarding the predicate crimes and the other elements necessary to show that a gang is a criminal street gang. It was his opinion that the crimes here were committed for the benefit of and in association with a criminal street gang.
Defendant's mother testified that Carlos Gonzalez came to her home after defendant was arrested for the murder of Rodarte. Defendant's girlfriend, Jesenia Becerra, was there and defendant's mother told her to stay back in the hallway while the mother spoke to Gonzalez. Defendant's mother testified that Gonzalez told her not to worry-that he killed the guy and he was going to turn himself in. The mother also testified that defendant writes with his right hand.
Becerra testified that defendant was her boyfriend in March of 2005 and is currently her fiancé. She testified that she overheard Gonzalez tell defendant's mother that he, Gonzalez, was the person who stabbed the guy and if something went bad in court he would turn himself in.
Serena Alvarez attended the party where Rodarte was killed. She went to the party in a red Camry four-door car. She saw a group of men around Rodarte and saw him pushed against the car. She could not see defendant. The group broke up and she went to the car and got in with Amy, the driver. Four males jumped in the car with them. The males were defendant, Juanito, Gonzalez, and a drunken person she could not identify. She said Gonzalez ...