FINDINGS AND RECOMMENDATIONS
Petitioner Rickey Carl Huerta is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. In his amended petition, petitioner challenges his convictions entered in the Sacramento County Superior Court for attempted murder and various other offenses, for which he is currently serving a sentence of 55 years to life plus 20 years. Based on a thorough review of the record and applicable law, it will be recommended that the petition be denied.
The following facts were summarized by the California Court of Appeal, Third District, on direct review. Petitioner is the defendant referred to therein:
March 14, 2004 (Counts 6 & 7)
On March 14, 2004, Manjit Singh Sivia was working at Steve's Liquor in the North Highlands area of Sacramento. He heard three or four gunshots, then found the front window broken and glass all over the floor. He did not see who had fired the shots. Sacramento County Sheriff's Deputy Kevin Mickelson found four shell casings in the parking lot and blood at the store's entry. Eyewitnesses described a truck involved in the shooting; the description fit a truck owned by Virginia Huerta, defendant's wife. Deputy Mickelson contacted her at home and asked permission to search the truck. Seeming agitated, she refused.
After the March 21, 2004, incident recounted below, investigating officers determined that the shell casings and a bullet fragment recovered from Steve's Liquor matched casings found in defendant's home. All had been fired from a.380-caliber handgun found on top of defendant's refrigerator.
March 21, 2004 (Counts 1-5)
Defendant, Virginia, and their sons Joseph and Rickey, Jr., lived in North Highlands. Defendant and Virginia had been having marital problems. Defendant had been acting paranoid and talking about suicide. During past arguments, Virginia had threatened to call the police but usually just left to let things settle down. However, she might have called the police a couple of times before March 21, 2004.
On the afternoon of March 21, defendant was barbecuing in the back yard, while Virginia sat in the living room with her son Angelo, who had come for a visit. FN1. She was not helping defendant because she was upset about his use of "street drugs."
FN1. Virginia testified that an unnamed acquaintance of defendant was with him. She seemed to suggest that this person might have remained at the house and shot at the officers.
However, she had not mentioned any such person to the police.
When defendant came in and saw Virginia and Angelo talking, he thought they were whispering about him and began to argue with Virginia. Angelo left. Defendant "smacked" Virginia on top of the head with an open hand, but did not injure her.
Telling him she could not "do it anymore," Virginia went outside to call the police on her cell phone. (She did not recall whether she told him she would call them.) She yelled at him that she wanted a divorce.
In her 911 call, which the jury heard, Virginia told the police dispatcher defendant had hit her in the face, but she did not need medical attention. She said he was inside the house after slamming the door, but was not armed. At trial, she testified she did not know there were guns in the house.
Sheriff's deputies responded quickly to the 911 call. Virginia had waited for them outside, while defendant remained inside with Joseph and Rickey, Jr. Defendant had briefly come to the screen door while she stood outside with cell phone in hand. A patrol car was parked on the corner, but she did not think it could be seen from the house.
As the uniformed deputies approached the house, Virginia walked across the front yard to meet them. She told them defendant was acting strangely, probably "tweaking"; he had been awake for four days, drinking and using drugs. She said he had hit her, but was not armed.
Virginia and the deputies walked toward the front porch, with one deputy next to her and the other behind her. One deputy had retrieved a taser from his patrol car's trunk and was holding it to the side.
According to the officer who later interviewed Virginia, she said that as she entered the house she told defendant, "[I]t's the police, just talk to them." At trial, however, she could not recall whether she said that or whether the deputies announced their presence. The front door was locked. One deputy was still beside Virginia and the other was still behind her as they stood at the door. As she started to open it, she heard gunshots, but did not know where they were coming from or who was shooting. She shouted, "[G]et down" and flung the door open. Seeing her sons running into the back bedroom, she ran after them and lay on top of them on the floor. Seconds later, according to Virginia, defendant, without a gun, joined them in the bedroom as the shooting continued. FN2.
FN2. After the incident concluded, Virginia discovered that the whole front of the house was shot up.
Virginia called the police outside from the bedroom, telling them that all family members were in the bedroom and defendant did not have a gun on him. She said she thought the guns were in the kitchen. Defendant said he would be willing to walk outside. She told him he was putting her kids in jeopardy.
The two boys walked out of the house at around 4:47 p.m. Virginia and defendant followed at around 5:00 p.m.
Daryl West, who lived across the street, was walking down his driveway at around 5:00 p.m. on March 21. He noticed two sheriff's deputies across the street in full uniform walking up to defendant's front door; both had their guns in their holsters. Hearing gunshots, he ran back into his house. He did not see who fired the shots.
Daryl's son James also saw the two uniformed deputies walking toward the front door with their hands on their holstered guns, Virginia walking a few feet ahead. As they passed a front window and neared the porch, James heard shots.
Another neighbor, Tiffiny Wake, saw Virginia standing in her front yard, then saw the deputies arrive. As the three walked to the front of the house, Tiffiny lost sight of them for a moment, then heard four or five gunshots. Next, she saw the deputies running through her yard with guns drawn. She could not remember seeing anything in the deputies' hands before shots were fired.
In a prior conversation, defendant had told Tiffiny he did not like the police. According to an officer who interviewed her after the incident, she said defendant had told her that if the police ever came for him he would go out in a blaze of glory. At trial, however, she could not recall whether she had said that to the police.
Cliffton Wake, Tiffiny's husband, also saw Virginia and the deputies walking up to the front door. As she opened it, someone appeared to pull her inside. A few seconds later, he heard gunshots coming from inside the house. The deputies did not draw their guns until after the first shots were fired.
Cliffton recalled a conversation with defendant before March 21, 2004, in which defendant claimed the police had followed him home on his birthday; he said they would not take him alive. On another occasion, gunshots fired at defendant's house had woken Cliffton.
Uniformed deputies Matt Tallman and Jamin Martinez arrived at defendant's house in separate patrol cars around 4:30 p.m. on March 21. Deputy Mickelson, who arrived soon after, advised them that defendant might have been involved in a shooting a week before and that Virginia had been agitated and uncooperative when he investigated it. The deputies agreed Mickelson would stay back and cover the others.
When Deputy Tallman spoke to Virginia outside, she was upset and crying, saying defendant had hit her. For officer safety, Tallman requested that she go to the front door and ask defendant to come outside and talk. Windows with blinds flanked the door.
The three approached the house, with Tallman beside Virginia and Martinez in the rear. Concerned about the alleged prior shooting, Martinez had gotten his taser, but did not point it toward the house. Neither deputy had his gun drawn.
As they approached, Virginia was screaming at defendant. She opened the door, then disappeared inside. The deputies heard a loud verbal exchange between her and a male. Thinking something was wrong, the deputies stepped toward the front porch. Tallman had not drawn his gun. Martinez, still behind him, had done so, but did not point the gun at the house.
A few seconds later, shots came from the house through the window to the left of the door. Martinez had not seen anyone in the window before the shots were fired. He fired one shot at the door. Tallman, wounded in the left shoulder, began to fall forward, but returned fire at the window. As he retreated, he was shot in the lower back and yelled out. Deputy Michael Liston, who had arrived as the others were approaching the front door and had heard two separate exchanges of gunfire, grabbed Tallman, put him in Liston's patrol car, and drove him to the hospital. FN3. Meanwhile, as Martinez retreated, something hard and heavy grazed his head but did not hit him.
FN3. A month later, Tallman had surgery to remove a bullet that had traveled through his shoulder and barely missed his heart. The second bullet that struck him did not penetrate, but left a bruise on his lower back.
Deputy Mickelson headed toward the house when the shooting started. He saw Martinez taking cover. He also saw someone heading from the kitchen through the living room. One front window had glass broken out; the blinds of both were down, with the left window blinds in the open position. FN4. The front door was open.
FN4. Deputy Brad Rose, who arrived as Deputies Liston and Tallman were leaving for the hospital, saw the left front window blinds open, but they closed moments later. Rose could not see anyone through them.
Defendant was placed in Deputy Rose's patrol car. Before he was taken to the Sheriff's Department, he said, "I hope he comes out okay" and, "I hope his family accepts my apology." Rose thought defendant appeared nervous and excited, but did not show symptoms of being under the influence of narcotics.
Inside the house after the incident, officers found six.380-caliber casings in the kitchen, a shotgun on the kitchen floor which contained six live rounds, and a.380-caliber handgun on top of the refrigerator. The shotgun had the safety off and a live round in the chamber. The handgun, which smelled as if recently fired, contained a five-round clip with unfired cartridges; it proved to have fired both the recovered.380-caliber shell casings and the bullet removed from Deputy Tallman. A holster and lockbox were found in the back bedroom. FN5. There were holes in the kitchen blinds, suggesting the blinds might have been closed when the shots were fired.
FN5. According to Virginia, she never saw the handgun before the incident. She had seen the shotgun, but had told defendant to get rid of it and had thought he had done so. She also learned about the holster and the gun lockbox only after the incident.
The officers found two bullets in a truck parked in defendant's driveway and a third bullet in a car parked across the street. All appeared to have been fired from inside defendant's house.
At around 9:25 p.m. on March 21, Deputy Steven Osborne conducted a videotaped interview of defendant at the Sheriff's Department, portions of which were played at trial. Defendant said he was under the influence of drugs as they spoke. He had been on a four-day methamphetamine binge without sleeping. He had consumed two grams of methamphetamine during the binge, including a half-gram on March 21; he had also drunk a 20-ounce malt liquor that day. FN6.
FN6. A blood sample taken from him after the shooting tested positive for methamphetamine, but did not reveal the amount in his blood.
Defendant admitted he had had a shotgun holding four or five rounds in his garage for six months. He knew that as a convicted felon he was not legally allowed to possess firearms.
On March 14, according to defendant, he shot some dead shells in the air at Steve's Liquor because people nearby had jumped his son, but he was not trying to hit anyone. As he drove up in his truck, one of them started to throw a bottle, so he fired over their heads to scare them; then he saw a window break in the store. Defendant said at first that he did not remember exactly what had happened that afternoon. The incident began, as far as he knew, when he was standing over Virginia. He did not remember getting or firing a gun. He was in the hallway when shots were fired; he could see Virginia and the boys in another room. He did not have a gun in the hallway. He owned a loaded black.25-caliber with a five-round clip and a holster, but he had put it in a closet or a security box, inaccessible to his sons.
Defendant said later that as he stood behind the kitchen counter while Virginia came through the front door, he saw a shadow of a gun. Without aiming or doing anything intentional, he just "popped." He knew Virginia had called 911 and it was the cops: "Who else would come to my house with guns?" Things got out of hand. He just wanted them to go away; he was scared of cops, but would not kill one-he could not kill them all. When they started coming, he shot in their direction, firing four to six shots from either a.25 or a.380. He shot through the window while standing behind the counter. His son did not want him to shoot.
Defendant said he had told Virginia, as if to call her bluff, that if she called the police it would end in a shootout. He reiterated that although he saw only a shadow, he knew it "had to be" the cops because "[n]obody else is going to come to my house brandishing guns and stuff, you know?" Nevertheless, he perceived the shadow as "a threat to me, because there was a big gun and another one right behind him."
Defendant knew he had "fucked up." He said: "[T]hat's giving me a lot of damned time right there, man, you know? Possession of a couple of firearms, hitting a cop. That's attempted murder, man. I'm done. Damn."
Defense case Testifying as a defense witness, Virginia stated she had known defendant for over 20 years and they had been married for 11 years. Recently he had become paranoid as his drug use increased, in particular methamphetamine. It intensified between November 2003 and March 2004, causing missed work, a nervous breakdown, and talk of suicide.
Virginia and defendant frequently argued, and she spoke of divorce. A couple of weeks before March 21, 2004, she had called the police after an argument, but he left before they arrived. Twice he was at home when the police came; nothing violent happened either time.
Defendant had had drug counseling. He began attending Narcotics Anonymous meetings in January 2004, but Virginia went with him only once because she was uncomfortable with the hard-core addicts there; soon after, he stopped going.
Defendant suffered from sleep apnea, which made it hard for him to stay awake during the day. Surgery failed to correct the problem. Virginia knew that defendant was on a methamphetamine binge for four days before March 21, 2004, was not sleeping or eating, and was growing more and more paranoid. She knew he had guns but did not know they were inside the house. During the police interview, he looked and sounded as though he were on methamphetamine.
After the house was shot up on a previous occasion, Virginia had bought a video camera, set up the monitor in the master bedroom and directed the camera to the street to show who was coming up to the front of the house; she and defendant usually turned it on at night. She did not know whether it was on on March 21, but thought it was broken. FN7.
FN7. The parties stipulated, however, that when an officer entered the bedroom on March 21, 2004, he saw the camera turned on, displaying the front yard, driveway, and house.
Defendant's stepson Joseph testified that he came in from the garage around 3:00 p.m. on March 21 and found defendant in the kitchen trying to shoot himself. After Joseph stopped him, defendant said Virginia was outside calling the police; Joseph said she often threatened to do so, but never did. Rickey, Jr., then walked into the living room; defendant followed him and started talking to him. Joseph closed and locked the front door, hoping to put defendant's gun away and to keep Virginia out of the house. Defendant and Rickey, Jr., were still talking in the living room when the front door opened and shots were fired. Joseph had not heard the police presence announced before the shots began and did not see defendant shoot anyone; defendant's gun was still in the kitchen. FN8.
FN8. Joseph admitted he had not told this story to the police.
Defendant's mother and stepfather testified that when he was three years old, mescaline or LSD coated in chocolate was brought into the home and wound up in his bedroom, where he found it and ate several tabs. He was hospitalized for four or five days. Afterward, his temperament and behavior deteriorated and he struggled in school.
Defendant testified on his own behalf. He remembered the mescaline incident and the discipline problems in school that followed. He also testified to a lifelong problem with sleep apnea, which left him tired all the time.
He started using drugs at 14, beginning with marijuana but moving on to methamphetamine. He began using it heavily at 16 and was soon an addict. It kept him awake. On occasion, he stopped using it.
Four years before his trial, defendant got a job at the Office of State Publishing. He used legal substances, in particular Ephedra and Xenadrine, to stay awake. But after they were taken off the market in mid-2003 he reverted to methamphetamine and soon became heavily addicted again. For eight months before March 21, 2004, he used it daily. Eventually, he started missing work.
On March 21, he had been taking methamphetamine in large quantities for four days without eating or sleeping. That day, he injected it in the afternoon and also smoked a gram. He and Virginia had argued over it.
He had a loaded handgun and shotgun in the water heater closet attached to the garage. He felt he needed them because someone had randomly shot at his house on Thanksgiving.
According to defendant, after he struck Virginia he did not acknowledge her threat to call the police because she had threatened it so often before. However, he felt bad about striking her, which he had not done in a long time. He got his handgun out of the closet to shoot himself, as he had been contemplating for months. The handgun was in a lockbox, which he brought into the bedroom to open with the key. He put the gun to his head but could not fire.
Defendant walked into the kitchen, still holding the gun to his head. Joseph tried to take the gun away. Rickey, Jr., then came in. Defendant put the gun on the counter and picked him up. After Rickey, Jr., went to the bathroom, defendant went to the front door and told Virginia to come back inside. Then he sat down on the couch as Joseph closed the door. After telling defendant that Virginia was not going to call the police, Joseph went to his room. Defendant went back to the kitchen and grabbed the gun. As he returned to the living room, the front door swung open. He could not see it from his position and did not recognize the sound of the door opening. When he heard it, he turned and looked out the window, where he saw "this big old shadow with a gun"-that is, the shape or outline of a gun. Afraid for his own and his family's safety (though he knew his wife was outside), he shot at the shadow; it all took about a second and a half. He fired only once, but then after hearing more shots he emptied his handgun. He was firing with his eyes closed, not intending to kill anyone. He felt he was defending himself and did not realize he was shooting at the police.
He ran to the garage, got his shotgun, and took the safety off. Back in the kitchen, he looked out the window and saw a police car. Bullets were flying through the house. He dropped the shotgun and lay down on his stomach, then crawled to his family. He was glad the police had come. He had not looked outside or checked the ...