FINDINGS AND RECOMMENDATIONS
Emilio Torres is a state prisoner proceeding with counsel in this petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Torres attacks his robbery conviction entered in the Sacramento County Superior Court, Consolidated Information No. 00F10227. Torres pleaded no contest to the robbery count at issue here as part of a negotiated plea agreement on multiple charges in several cases which were consolidated for sentencing. No direct appeal was had, as it was waived as part of the plea agreement.
A prior report and recommendation was entered on December 12, 2008. That report was adopted on August 3, 2009, by the Honorable Lawrence K. Karlton, Senior Judge, except as to the issue of ineffective assistance of counsel, which was remanded for further proceedings. An evidentiary hearing was held on November 16, 2009.
The remaining issue for consideration in this case is whether William White, Esq., Torres' appointed counsel from the time after his preliminary hearing up until entry of his negotiated plea, rendered ineffective assistance of counsel by failing to credit alleged claims by Torres that he was innocent of the robbery, and that five witnesses to the events surrounding the robbery would testify favorably for him if given the opportunity to do so.
In support of his position, Torres submitted with his original petition his own Declaration under penalty of perjury, and those of the five witnesses. Subsequently, he and all five witnesses testified at the November 16, 2009 evidentiary hearing, in addition to Rosa Torres, mother of the petitioner, and William White, Esq., whose assistance of counsel is at issue here. Both parties requested time to file supplemental briefs, which have now been docketed.
The state court proceedings which form the background of this case are quite complex. There were multiple cases and voluminous charges. Many of the essential facts are recorded in the transcript of the consolidated preliminary hearing held on November 18, 2001, in Case No. 00F00392 (the robbery at issue in this proceeding), and Case No. 00F10227 (fraud and other unrelated charges). Torres contests evidence given at this preliminary hearing as will become apparent, but that proceeding informs the complicated background of this case.
Ultimately the multiple charges involved in the November 18, 2001 preliminary hearing were consolidated for purposes of the negotiated plea agreement, together with a separate and distinct jury conviction of second degree burglary and possession of stolen property and burglary tools involved in the burglary of a company, Beazer Homes, on February 19, 2002. It was after this jury conviction for second degree burglary and possession of stolen property and burglary tools that the seven count Amended Consolidated Information No. 00F10227 was filed.
The robbery conviction under attack in this case was charged in Count One of the amended consolidated Information, although it was the last offense to occur, chronologically.
Count One alleged that on December 21, 2000, Emilio Torres committed second degree robbery by taking personal property from person, possession, and immediate presence of Jonathan Tisdale, Christie Nixon, Randy Blackburn, and Lisa Richards. It was further alleged that Torres committed these crimes, serious felonies, while out on bail after conviction on a primary offense (the jury convictions regarding burglary of Beazer Homes).
It is this crime (second degree robbery) to which the testimony at the November 18, 2001 evidentiary hearing primarily pertained, but the relationship of the other convictions and the parties involved in them is apparent. The events leading to the robbery charge began with a San Joaquin County Sheriff's Department investigation concerning fraudulent applications for credit cards in the names of multiple individuals who had not submitted them. All of the applications used the address of Jonathan Tisdale, one of the eventual victims/witnesses to the robbery count. The execution of a search warrant at Tisdale's residence on November 14, 2000 produced mail from credit card companies addressed to various people. Tisdale, who was present during the search, explained that he had given Emilio Torres permission to use his address, in return for the purchase of marijuana by Tisdale from Torres, at a reduced price.
Tisdale identified a separate address as the home of Emilio Torres, and a separate search warrant was executed at that home the same day. That second search produced a quantity of methamphetamine, which formed the basis for Count Two of the Amended Information. Count Three was the result of the presence of a 9mm assault rifle at Torres' home. Count Four charged possession of a stolen vehicle which was found in the garage of Torres' residence. Count Five was based on access to a computer system without permission, resulting in the possession and compromise of the personal information of some 5,000 employees of the California Department of Justice. Count Six charged the unlawful acquisition and use of personal information of eleven private individuals for unlawful purpose, resulting essentially from the mail recovered from Tisdale's home. Count Seven charged possession for purpose of sale of methamphetamine which had been found in Torres' home.
Absent a plea agreement, Torres faced exposure to a sentence of thirty four years and four months, based solely upon the seven counts of the amended consolidated Information. Ultimately, he pleaded nolo contendere in exchange for a sentence on these seven counts and the three count jury verdict case, for a total maximum sentence of fifteen years imprisonment. The multiple other cases and counts were dismissed. The plea agreement included a single strike rather than the multiple strikes Torres otherwise faced.
Torres' position on the sole issue remaining in this case is that his appointed lawyer, William White, Esq., did not interview the alleged victims of the robbery because he unreasonably credited the testimony of law enforcement officers who testified at the preliminary hearing regarding their investigation and the statements given by the victims/witnesses. Torres claims that counsel ignored his insistence that he was innocent of the robbery count and that the witnesses would have supported his claim of innocence, if counsel had contacted them.
III. TESTIMONY AT THE DECEMBER 18, 2001 STATE COURT PRELIMINARY HEARING
This summary of evidence at the lengthy preliminary hearing is limited to the offense under attack in this proceeding. Some evidence regarding other matters relates to the reasonableness of the plea bargain at issue, and is therefore included.
JOSEPH ARILA'S TESTIMONY:
Joseph Avila testified that he is an identification technician in the evidence lab of the Sacramento Police Department. At the time of the evidentiary hearing he had been an identification technician for about 23 years.
Avila testified that he was provided with a four page document which appeared to be a photocopy of a Sacramento County Sheriff's Department report. Examination of the report revealed two visible fingerprint impressions and a total of 34 latent print areas. There were also two areas of possible blood on the document he examined, on the front and back pages.
Avila identified People's Exhibit 16 as a photograph containing latent number eight and a portion of latent number one.
On cross examination, Avila explained that his role was strictly the identification of latent prints. He did no comparison. He photographed 34 different areas of latent prints. He had received a copy of another technician's report which had identified latent number eight as belonging to a particular person.
BRIAN MALLORY'S TESTIMONY
Brian Mallory testified that he is an identification technician with the Sacramento Police Department. He was previously employed by the Federal Bureau of Investigation as a fingerprint examiner for approximately three years.
Mallory was shown a photograph of latent number eight, found by identification technician Avila. He testified that he compared it to the original inked fingerprint card of Emilio Torres, and found it to contain fingerprint impressions of Torres' right index and right middle fingerprints.
Mallory testified that he is one hundred percent positive of his results. He explained that it is policy to identify only one latent print for purpose of a preliminary hearing, and that he had contacted the Deputy District Attorney to ask if more were necessary in this case.
On cross examination, Mallory testified that the identification process he uses is to match the ridge characteristics between the inked print and the latent print.
Mallory testified about the process of identification of a latent print and then stated that he found twelve matching ridge characteristics on the right index finger impression and fourteen matching ridge characteristics on the right middle finger impression.
A fully rolled inked fingerprint can contain anywhere from 75 to 150 ridge characteristics. Avila further testified that he has no minimum standard of matching ridge characteristics in order to give an assessment, however the minimum number that he has ever used for a one hundred percent identification is eight.
ALBERT McPHERSON'S TESTIMONY
Albert McPherson testified that he is an assistant range master for the Sacramento County Sheriff's Department. He was asked by Detective Souza to examine a firearm. He described the firearm as a nine millimeter carbon manufactured by Feather Industries, equipped with a collapsible stock, two pistol grips, barrel shroud and a high capacity magazine. It is semi automatic.
The Court inquired whether this is an assault weapon, to which McPherson responded that it is not in the specific list of assault weapons, "but it fits the assault weapon category under the newest laws."
Asked on cross examination why, if the weapon meets the criteria of an assault weapon in the Penal Code, it is not listed as such, McPherson testified to his understanding that the listing is no longer updated because the proliferation of brands, makes, and models of guns has become too extensive to keep up with. "So they made criteria. If a weapon is equipped with certain items, it puts it into a category of assault weapon."
McPherson did not attempt to identify the owner of the rifle, but did have the "property warehouse check the numbers and it didn't come back as stolen."
PETER KEVIN CONRAD'S TESTIMONY
Peter Kevin Conrad testified that he is a Sergeant assigned to the high crimes task force of the Sacramento Sheriff's Department. He assisted in the service of a search warrant at 77 Audia Circle in Sacramento County on November 14, 2000.
Conrad testified as to the identification of an Ohaus brand triple beam scale found on a table in the master bedroom closet of the residence and a Macy's charge card in the name of Emilio Torres, found in the same closet. There was marijuana on the floor of the closet.
Conrad also testified to the presence of a Meed (sic) brand memo pad found on the upper shelf of the south closet wall, which contained "a name list and numbers."
Conrad went on to testify about other quantities of marijuana, a calculator, and photographs of Emilio Torres and a small child. In addition, there was a package of "large plastic bindles" which he also described as "baggies or coin type bags."
Methamphetamine was found on the Ohaus scale and on a plastic CD case on the table in the closet. Other separate quantities of methamphetamine were found in the master bedroom at 77 Audia Circle. The parties stipulated as to the identification of all suspected quantities of methamphetamine found in the residence, for purposes of the preliminary hearing only.
On January 16, 2001, a second search warrant was executed at the same location, during which Conrad found a cell phone in the same room where the other items had been found.
On cross examination, Conrad testified that he was at the Audia Circle address for two separate searches, one on November 14, 2001 and another on January 16, 2001. Initially he had no search warrant for the November 14, 2001 search. On that day, Conrad first executed a search, with a warrant, at an address on Hollyhurst Way (Tisdale's home). He explained that the course of that investigation led to the Audia Circle address, for which a warrant was subsequently obtained.
OFFICER VINCENT FRANCOIS' TESTIMONY
Interview of Jonathan Tisdale
Officer Vincent Francois of the Sacramento Police Department testified at the preliminary hearing that on December 23, 2000, he went to 6028 Hollyhurst Way in response to a call regarding a robbery. He spoke with Jonathan Tisdale, who reported that he had been robbed at his residence (6028 Hollyhurst Way) two days prior, on December 21, 2000, at about 9:00 p.m. He responded to a knock on his door, and upon asking who was there, was told it was "Mill" (sic), whom he recognized as his friend, Emilio Torres, elsewhere identified and referred to herein as "Mil."
Tisdale opened the door, and Torres and five or six other persons entered the home. Tisdale told Officer Francois that Mil pushed him into the kitchen, threw some papers on the counter and told Tisdale to "fix this." The papers were a copy of a Sacramento County Sheriff's Department report.
Thereafter, Tisdale heard Mil tell his friends to "take it all." Yoyo (subsequently identified as Jose Pulido) smashed Tisdale's head against a kitchen counter several times. Tisdale was then placed in a headlock, and taken to the living room, where his head was slammed against the hardwood floor. He heard Emilio say "Don't call the cops or we will kill you." Torres also told Tisdale that he would not get his things back until he "fixed the report."
Francois testified that at the time of the December 23 interview, Tisdale had bruises and a swollen upper lip, where he had approximately seven stitches.
Tisdale told Officer Francois that he believed the robbery was related to the information he had provided to detectives regarding the Sheriff's report.
On cross examination, Francois stated that Tisdale explained his delay in reporting the robbery by stating that he wasn't sure what he wanted to do. He was scared, and wanted to talk it over with his girlfriend, to make certain that he was not putting her in danger.
Francois also acknowledged that Tisdale did not say that Torres had personally struck him during the robbery. Francois testified that Tisdale was not afraid of Emilio Torres one on one, but was afraid of him "when he comes around with all of his friends."
OFFICER ROBERT FUENZALIDA'S TESTIMONY
Interview of Christy Nixon
Robert Fuenzalida, Patrol Officer with the Sacramento Police Department, also responded to the call on December 23 regarding the December 21 robbery, and interviewed Christy Nixon. He testified that Nixon told him that on December 21, 2000, she was walking downstairs and saw approximately ten people walk into the house where she was staying. When they entered, she tried to go upstairs, but Mil "grabbed her," and sat her on the couch. He then sent one of the other men who had walked in with him to see if anyone else was upstairs.
Nixon said that a big Hispanic male, about six foot three, 300 pounds, stood in front of Jon (Tisdale) and told them not to move. She then heard Mil ask Jon to explain why he was talking to the police. Thereafter she saw people taking items out of the house, including a TV and Christmas gifts. She saw the "big guy" punch Jon and bang his head against the counter and refrigerator.
Fuenzalida testified that Nixon told him that she did not know anyone but Emilio, for whom she gave a physical description. She said that she had seen him previously at the house, talking to Jon.
On cross examination, Fuenzalida was given an opportunity to look at the report and clarified his testimony to indicate that it was the large Mexican male who hit Tisdale, rather than Emilio.
Fuenzalida further acknowledged that Nixon said that once the beating started she "just looked down" and did not look around any further, because she was scared.
DETECTIVE DAVID SOUZA'S TESTIMONY
Interview of Jonathan Tisdale
Detective David Souza of the San Joaquin County Sheriff's Office, who testified at length concerning Torres' other offenses, also testified that when he became aware of the Tisdale robbery he began an investigation into that incident.
Souza testified that he interviewed Jonathan Tisdale, who told him that on the night of the robbery, he answered his door and Emilio Torres forced his way in. He was taken to the kitchen, and numerous other people entered the home. Torres wanted to know why Tisdale had given information to the police about Torres. Tisdale reported that he had been beaten, but was not sure whether by one or more persons. He identified Yoyo (whom Souza identified as Jose Pulido) as having beaten him. At the time of the interview, Tisdale had a cut lip, and Souza could see stitches there. Tisdale said he sustained the injuries while talking with Torres, and that Torres left a copy of the sheriff's department report in the house. Torres also directed his companions to take personal property from the home, which they did.
On a later occasion Souza displayed a photographic lineup to Jonathan Tisdale, who identified a photograph of Emilio Torres as his assailant. Tisdale was also shown a photographic lineup from which he identified a photograph of Jose Pulido as Yoyo.
Interview of Christy Nixon
Detective Souza also testified regarding his interview with Christy Nixon. Nixon said that she was walking down the stairs at the time the robbery began. She heard voices, but could not identify them. Jonathan Tisdale later told her that Emilio Torres "had been one of the suspects at the residence during the robbery." During the robbery, she sat on a couch in the living room with Randy Blackburn and Lisa Richards, who also lived at the residence. Souza showed Nixon a photographic lineup, but she could not identify anyone.
On cross examination, Souza said that Nixon refused to speak with him, and that he only got her to talk to him by going to her place of employment. He said that she was not cooperative and was afraid of Emilio because of what had happened. Upon further questioning, Souza acknowledged that Nixon had not said she was afraid of Torres, but that he had "ascertained that." Nixon told Souza that no one threatened her or threatened to take her car.
Interview of Randy Blackburn
Souza also interviewed Randy Blackburn, another of Jonathan Tisdale's tenants. Souza explained that the home is a two story residence owned by Jonathan Tisdale, who rented space to Christy Nixon, Randy Blackburn, and Lisa Richards, who was Blackburn's girlfriend.
Souza testified that Blackburn was told to sit down during the robbery. He did so, and could hear some of the events, but was unable to identify any of the assailants. He did describe items which were taken from various residents of the home. These included a Nextel I600 cell phone which belonged to him. Souza testified that when a search warrant was executed at Emilio Torres' home, the missing cell phone was recovered from Torres' bedroom.
Interview of Lisa Richards
Souza interviewed Lisa Richards, who said that during the robbery, she and Blackburn were in the same room. Richards heard Nixon calling for Blackburn, who stood up, but was told by three men to sit down. Numerous persons then entered the home. Nixon could not identify any of the intruders. Sitting on the couch, though, she saw a young male with a bigger man standing beside him demanding "Jon, how could you do this." Richards further said that the younger man "also got into Christy Nixon's face," and yelled at her, asserting that she had "told them I'm a crack dealer." The man also threatened to take Christy Nixon's car. Moreover, he told Richards and Blackburn that he knew who they were and knew that they had not said anything to the police.
Richards further reported that the large male grabbed Jon Tisdale from behind, and began to beat his head into the kitchen counter, causing him to bleed considerably. Richards took Tisdale to a medical center for treatment, where he received stitches.
Richards was unable to identify anyone from a photographic lineup. She said that Jon Tisdale told her that Mil was the one who had "done this," and that Jon's brother, Matthew Tisdale, said that all of the men were family members.
On cross examination, Souza acknowledged that only Jonathan Tisdale was able to identify Emilio Torres from a photographic lineup.
Interview of Matthew Tisdale
Souza was asked about Matthew Tisdale, Jonathan's brother. He testified that Matthew was in the garage during the robbery, and that although he did not see Emilio Torres, he heard his voice.
Souza acknowledged on cross that Torres was not at the Audia Circle address during execution of the search warrant that produced the telephone, but pointed out that a file containing the previous criminal case had been found, missing the four pages that "he (Emilio) said he had taken to Jonathan Tisdale's house."
Souza also acknowledged that Pulido (Yoyo) had pleaded guilty to beating Jonathan Tisdale.
On re-direct examination, Detective Souza testified that during the search at Audia Circle, Jose Gutierrez was present, and said that he was paying monthly rent to live there. Yoyo and Adrien Madrono were also there.
Asked on redirect if it were possible that someone else took the four pages to Tisdale's house, Souza responded "yes but Emilio has already told me that he did."
IV. TESTIMONY AT THE NOVEMBER 16, 2009 FEDERAL EVIDENTIARY HEARING CHRISTY NIXON'S TESTIMONY
At the federal evidentiary hearing on November 16, 2009, Christy Nixon was the first witness called on behalf of Emilio Torres. She testified that on the night of the robbery she did not reside at Tisdale's residence, but was there at that time, sitting on the couch. Jon answered the knock at the door, and some men pushed him into the house, had words with him, and took things.
Nixon testified that she was never contacted by the police or interviewed. She was never asked if Emilio was present, and does not know him. She was never contacted by petitioner's appointed attorney, William White, or by anyone else on his behalf, and was not subpoenaed for trial.
Asked if she was later interviewed by others and asked to put her recollection down in writing, she said no. Shown a copy of her sworn Declaration and asked to identify it, she did so, but noted that this occurred years later. Asked to tell the story in her own words, she said that Jon let his assailant in, and was taken to the kitchen, where his head was hit on the counter. From there, they took him to the living room. She could hear some words but could not see. Things were taken, and they left. She could only hear what happened.
On cross examination, she acknowledged that she still knows Jon Tisdale, who is now her ex husband. At the time of the robbery, they were friends.
Nixon also testified on cross examination that she was not walking down the stairs at the time of the robbery, but rather, was on the couch watching television. She saw multiple men enter the house, but no one touched her. She does not remember size or description of the men. She thinks Jon hit his head on the counter. She was scared and probably looked down. She does not remember someone saying "don't call the cops," and does not believe that the police came that night. She does not remember speaking with police Officer Fuenzalida, or giving any physical description of the assailants. She does not know who Jon's friends were at that time.
Nixon acknowledged that on November 14, 2000, weeks before the robbery, police officers came to the house regarding mail. Asked if she told them Mil was involved in selling drugs, she responded that she does no know anyone by that name. She did not tell police that she was with Jon when he delivered mail to Emilio Torres.
Nixon testified that she only remembers speaking with police officers before the robbery, not after. She does not remember Detective Souza or recall telling him that she saw Emilio or that Jon told her Emilio was there.
Nixon testified that she does not remember who came to talk to her about the case. She did not know who Emilio Torres was, so she did not say she was afraid of him.
Nixon further testified that she was never shown either a live or a photographic lineup.
The Declaration given some years later was written in her own words when she was contacted by a man. Jon said that they needed to meet at a restaurant and give their statements. She does not remember what the purpose was. They typed it and brought it to her to sign, and she reviewed and signed it.
Lisa Richards testified that she recalls the night of the robbery. She was in the living room, watching television. There was a knock at the door, and some four to six men entered the house, some from the front door, and some from the back. They told the people watching television to stay where they were and proceeded to rummage through the house. One of the men hit Jon; then they took some things and left, after about ten minutes.
Richards testified that she has never met and does not know Emilio Torres.
Richards was contacted in 2005 regarding a Declaration of the events. She kept her copy,reviewed it before the evidentiary hearing, and testified that the statement is true. Upon being asked to do so, Richards read paragraph five of the Declaration and affirmed its truth.
Richards recalls being interviewed, but not by uniformed police. She does not recall being interviewed by counsel for Torres, and stated that paragraph seven of the Declaration is true. She was not subpoenaed to testify prior to the federal evidentiary hearing.
On cross examination, Richards acknowledged that on the night of the robbery, she was living at the Tisdale home, with her boyfriend, Randy Blackburn, Jonathan and Matthew Tisdale, and Christy Nixon. She, Randy, and her son were playing Play Station in the same room.
Richards recalls Christy calling for Randy when the door opened. Randy stood up, but was told to sit down by three men, and did so, as numerous people entered the house.
Richards testified that she does not recall a young man handing Jonathan some paperwork, but she does recall a big ...