Court: Superior County: Los Angeles Judge: Charles E. Horan and Thomas F. Nuss.
The opinion of the court was delivered by: Moreno, J.
On May 22, 1992, petitioner Alfredo Valdez was sentenced to death for the April 30, 1989 murder of Ernesto Macias. On June 14, 2002, while the automatic appeal to this court was pending, Valdez filed a petition for writ of habeas corpus. On January 6, 2004, in the automatic appeal, we affirmed the judgment of death in People v. Valdez (2004) 32 Cal.4th 73.
On November 17, 2004, we issued an order to show cause why relief should not be granted on the ground that trial counsel rendered ineffective assistance of counsel. On February 7, 2007, following the filing of a return and reply, we ordered the Los Angeles Superior Court to appoint a referee to conduct an evidentiary hearing and make findings on several questions. Judge Charles E. Horan was appointed and, following an evidentiary hearing, filed his referee's report on December 4, 2008, answering each question and concluding that petitioner did not establish that trial counsel rendered ineffective assistance of counsel.
Having considered the parties' briefs and exceptions to the referee's report, for the reasons that follow we adopt the referee's report and deny the petition for writ of habeas corpus.
A jury convicted petitioner of first degree murder (Pen. Code, § 187, subd. (a))*fn1 and escape from custody (§ 4532, subd. (c)) and found true the special circumstance allegation that the murder was committed while petitioner was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)) and the allegation that petitioner personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). The jury also found that petitioner had previously suffered three serious felony convictions. (§ 667, subd. (a).)
Evidence Admitted at Trial*fn2 Guilt Phase
The victim, Ernesto Macias, lived in Pomona in a house that he shared with his cousin Arturo Vasquez. On the Saturday night before the victim was murdered, Gerardo Macias, who was a distant relative of the victim, arrived to pick up Rigoberto Perez, who had been drinking beer with the victim, Vasquez, and petitioner. Gerardo*fn3 and Perez were cousins and lived together with Gerardo's mother.
When Gerardo entered the house, the victim, Vasquez, Perez, and petitioner were in the small living room, which also served as the bedroom. The victim was lying on a mattress, covered with blankets, and had a Jennings .22-caliber semiautomatic handgun at his side. Perez was lying on a second mattress, with Vasquez sitting next to him. Petitioner was standing near the front door. The victim announced he wanted to go to sleep because he was leaving early in the morning to catch a plane to Mexico to attend his sister's wedding. He said he was taking $3,000 with him.
Gerardo, who had been drinking beer that day, drank one or two more beers after he arrived. Approximately 10 minutes later, at Vasquez's suggestion, Gerardo, Vasquez, and Perez drove to the nearby house of a friend, Andreas "Pato" Gutierrez, to "party," leaving the victim and petitioner alone. As they were leaving the house, Gerardo heard the victim tell petitioner in Spanish, using a "kind of mad" voice, to wait outside, but Gerardo did not see petitioner leave the house.
It took the three men approximately one minute to travel to Gutierrez's house, but they found that Gutierrez was preparing to go to sleep, so they returned to the victim's house to drop off Vasquez. The round trip took approximately 10 minutes. Gerardo drove into the driveway of the victim's house and Vasquez got out of the car and walked up to the front door. When Vasquez opened the door, no one was inside; he saw a lot of blood and yelled, "Hey, hey." Perez got out of the car and joined Vasquez at the door. Visibly frightened, they ran back to the car and told Gerardo that they had seen "all kinds of blood." Because it was the victim's house, and the victim had had a gun beside him when the three men last saw him, they thought the victim might have shot petitioner.
The three men drove around the area looking for the victim and petitioner. After quickly checking with a cousin of the victim, who lived "down the street," Gerardo drove around the block a couple of times, and finally noticed a bloody body lying on the curb a few houses away from the victim's house. Gerardo was unable to identify the body, but Vasquez recognized it as the victim's. Gerardo drove around the block to a telephone booth, dialed 911, and reported the location of the body. He then drove Vasquez to Gutierrez's house, drove himself and Perez home, and did nothing further. He testified that he did not wait for the police because he was frightened and had outstanding arrest warrants.
Pomona Police Sergeant David Johnson entered the victim's house on Sunday, April 30, 1989, with two other officers and observed "blood everywhere." A broken trail of blood and bloody bare footprints led from the victim's concrete front porch to the victim's body. The victim was not wearing shoes and his feet were bloody. Detective Frank Terrio surmised that the victim had left the bloody footprints when he walked out of his house bleeding to death.
The victim had been shot four times. An entry wound just below the victim's left eye likely had been fatal, and a wound below the right ear indicated that the victim had been shot from less than 18 inches away. It was possible that the victim had sustained the injuries inside the house and collapsed some distance away.
The victim's left pants pocket was turned inside out and there were bloodstains on the interior of the pocket. He was wearing jewelry and approximately $80 was found in his undisturbed right pants pocket. The prosecution introduced the victim's 1988 state and federal tax forms, which claimed a federal tax refund of $1,203. Two days before the murder, on Friday, April 28, 1989, a United States Treasury check for $1,203 payable to the victim had been cashed at a Bank of America branch office in Pomona. Given the bank's policy of requiring two forms of identification to cash a check, a bank manager opined that the victim had cashed the check. A police check and credit fraud expert compared signatures on the victim's Department of Motor Vehicles handwriting exemplar with that on the Treasury check. The signatures were similar, but the analysis was inconclusive.
Detectives searched the victim's house and discovered a Jennings .22-caliber semiautomatic handgun underneath the kitchen sink, one expended .22-caliber long rifle cartridge casing, one .22-caliber Super X long rifle cartridge, and one .25-caliber cartridge. The Jennings .22-caliber handgun fires .22-caliber long rifle ammunition and holds a total of seven rounds. They did not find a wallet, money, plane tickets, or a bank savings book.
Detective Terrio also observed two different shoe prints made in blood on the concrete porch outside the victim's house. It was clear that the same shoe had not made both prints. One of the shoe prints, which was consistent with those made by Adidas jogging shoes or Nike walking shoes, was only a partial print of the midsole area, and thus could have been made while the person was entering or leaving the house. The larger shoe print indicated that it had been made while the person was leaving the house. Detective Terrio testified on cross-examination that the two shoe prints were consistent with two people having left prints in the blood. He also acknowledged that a police officer at the scene could have left one of the prints, but noted that officers generally do not wear tennis shoes to crime scenes. A police work boot, however, exists that has a pattern similar to the one found on the porch.
Approximately 24 hours after the murder, in the early morning hours of May 1, 1989, Pomona Police Lieutenant Larry Todd was monitoring a group of individuals who were not implicated in the murder investigation but were suspected of preying on people visiting certain convenience stores. He observed the group near a Monte Carlo automobile parked outside one of the targeted convenience stores. Petitioner was standing next to the passenger-side door of the car. Intending to warn the occupants of the vehicle about the group, Lieutenant Todd drove up to the Monte Carlo. As he did this, the driver of the vehicle got out and walked to the front of the car. Lieutenant Todd got out of his patrol vehicle and walked toward thedriver. When he reached the driver's side door of the Monte Carlo, he spotted a small-caliber gun protruding from under the front seat. He pulled out his weapon and ordered the driver and petitioner to stand still.
Lieutenant Todd called for assistance and was joined by Officer Joseph Pallermino who seized the gun, a Jennings .22-caliber semiautomatic handgun, and a magazine containing bullets, from the driver's side interior of the car. The three bullets seized consisted of two Super X .22-caliber long rifle cartridges, and one Federal .22-caliber long rifle cartridge.*fn4 Officer Pallermino noticed dried blood on the grip of the gun. Petitioner and the driver of the car, who was identified at trial only as Morales, were arrested. When petitioner was booked, he had $100 in cash on his person. It was stipulated that petitioner was unemployed at the time.
Detective Terrio, who is a latent print expert, compared a bloody palm print that was detected on the left side of the grip of the Jennings .22-caliber handgun found in the Monte Carlo to petitioner's palm print. In Detective Terrio's opinion, the latent palm print was made by petitioner, and could only have been made when the blood was wet. On cross-examination, Detective Terrio stated that he could not determine the age of the print, and agreed that petitioner's palm print might have gotten on the grip of the gun without petitioner gripping the gun while shooting it. Deputy Sheriff Linda Arthur, a latent fingerprint expert with the Los Angeles County Sheriff's Department, opined, but was not sure, that the palm print was from a left hand.
Serologist Richard Catalani examined the blood on the grip of the Jennings .22-caliber handgun found in the Monte Carlo and compared it to blood from the victim and petitioner. Catalani opined that the blood on the gun could not have come from petitioner, but was consistent with the victim's blood type. He added that approximately 16.4 percent of the population has the same phosphoglucomutase (PGM) subtype as the blood found on the gun.
Criminalist James Roberts examined the bullets removed from the victim's body to determine whether they could have been fired from the Jennings .22-caliber handgun found in the Monte Carlo or the identical Jennings .22-caliber handgun found in the victim's kitchen. He stated that he was unable to conclusively link the bullets to either gun because the bullets could have been fired from any Jennings .22-caliber semiautomatic handgun.
On April 19, 1990, about a year after the murder, Pomona Police Detectives Allen Maxwell and Greg Collins interviewed petitioner. Petitioner waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, but refused to allow the interview to be tape-recorded.
Petitioner admitted that he had been at the victim's house around the time the victim was killed, and recalled that there had been three other people in the house that evening. He had gone to the victim's house "quite often" to buy drugs, but he did not buy any that night because the victim had said he did not have any drugs to sell. Initially, petitioner said he had left the victim's house shortly after the other three men left, but then said he had left the house at the same time as the others. He said he had argued with the victim as to whether he should leave, but maintained their argument was not violent. Petitioner stated he did not have a gun while he was at the house.
Petitioner told the officers that the day after the murder he went to a convenience store to buy beer. When he came out of the store, officers were detaining Morales. Feeling that he had nothing to fear, he walked up to the car and was subsequently arrested.
When questioned further about the Monte Carlo, petitioner gave contradictory answers as to how he and Morales had obtained the car. Petitioner first said he had gone with Morales to the apartment of the owner of the Monte Carlo, and even though the owner did not like him, the owner had lent them his car. Petitioner then said Morales had gone to the owner's apartment, borrowed the Monte Carlo, drove around the corner, picked up petitioner, and the two of them drove around looking for drugs.
Petitioner told the detectives that he had not known there was a gun in the Monte Carlo and did not know how his bloody print got on the gun. He said he never touched the gun.
When questioned about inconsistent and confusing statements he made during the interview, such as how he and Morales had obtained the Monte Carlo, petitioner became "[d]efensive [and e]xtremely agitated." The interview ended when petitioner became upset over questioning regarding both his inconsistent statements and his print on the gun found in the Monte Carlo.
On April 8, 1991, while in custody on unrelated charges, petitioner appeared in court and pleaded not guilty to the murder and special circumstance charges. While being escorted back to "lock up" in a "four-man chain," petitioner broke free from his handcuffs and fled out of the courthouse. Deputy marshals and sheriffs pursued him and subsequently found him hiding in a women's bathroom in a building across the street.
Petitioner did not testify, but Vasquez testified for the defense that on the day of the murder, or the day before, he had loaned a Jennings .22-caliber handgun to Gutierrez that was identical to the guns found under the victim's kitchen sink and seized from the Monte Carlo. Sometime in the afternoon, the victim, carrying a suitcase, left saying his brother Roberto was going to take him to the airport to catch a flight to Mexico. Vasquez spent the afternoon drinking beer at the house with Perez and Gutierrez.
The victim unexpectedly returned home at approximately 9 p.m. Gutierrez went home after approximately one hour, but petitioner arrived, soon followed by Gerardo and Perez, who were a "little bit drunk." Vasquez did not see the victim with a plane ticket, a wallet, cash, or luggage upon his return. Nor did he notice a bulge in the victim's pants pockets. Vasquez never heard the victim brag about having large sums of money or discuss his trip to Mexico. The victim and petitioner were friendly to each other and did not argue. Vasquez, however, admitted on cross-examination that he ...