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Ricardo Scott Luna v. Tim Virga

November 22, 2010

RICARDO SCOTT LUNA, PETITIONER,
v.
TIM VIRGA,*FN1 WARDEN (A), CALIFORNIA STATE PRISON, SACRAMENTO, RESPONDENT.



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

MEMORANDUM DECISION

Petitioner Ricardo Scott Luna, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Luna is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Sacramento. Respondent has answered, and Luna has replied.

I. BACKGROUND/PRIOR PROCEEDINGS In September 2003 following a trial by jury, Luna was convicted in the Sacramento County Superior Court of Assault with a Firearm (Cal. Penal Code § 245(a)(2)) and being a Felon in Possession of a Firearm (Cal. Penal Code § 12021(a)(1)). The jury also found true enhancements that Luna personally used a firearm in the commission of the offense (Cal. Penal Code § 12022.5(a), (d) and § 1192(c)(8)), had suffered a prior strike conviction (Cal. Penal Code § 667(a)(1), (b)(i)) and had served three prior convictions for which he served prison terms (Cal. Penal Code § 667.5(a)). Luna then pled no contest to Auto Theft (Cal. Vehicle Code § 10851(a)). The trial court sentenced Luna to an aggregate prison term of 15 years. Luna timely appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction in an unpublished, reasoned decision.*fn2 The California Supreme Court summarily denied review without opinion or citation to authority in an unpublished decision on April 20, 2005. Luna timely filed his Petition for relief in this Court on February 3, 2006.

The facts underlying the conviction, as summarized by the California Court of Appeal, were:

On March 12, 2003, David Perez, his mother Josie Perez, her boyfriend, Angel Valdez, and [Luna's] ex-wife, Josephine, lived together in Josie Perez's home. David woke up between 12:30 and 1:00 that morning and saw [Luna] and Josephine in the living room watching television. David and [Luna] had a brief conversation during which [Luna] agreed not to jump the fence to get access to the house anymore.

Later that morning, David and his girlfriend, Denise Christian, took Josie to a dialysis appointment. When they returned to the house, [Luna] and Angel were on the front porch. David said hello and he and Denise went into the house.

David and Denise noticed the previously locked door to Josie's bedroom had been broken open. David went outside to talk to [Luna], but when he got there, [Luna] was walking away.

David and Angel began to repair the doorframe. Ten to 15 minutes later, Denise saw [Luna] walk up to the house holding a gun, and as he approached the house, she saw him put a clip in the gun. She yelled to David and Angel that [Luna] had come back with a gun. David told Denise to close and lock the front door, which she did. Angel jumped out the bedroom window, while David and Denise ran out of the house through the garage into the side yard. They continued toward the front of the house. When they got to the front of the house, they heard a "boom" and saw [Luna] kicking in the front door. They ran to the gate in the yard to leave. As they ran toward the gate, David turned around and saw [Luna] standing by the front door pointing a gun at his back.

Denise ran to a neighbor's house and called 911. David ran to the other side of a car parked directly in front of the house. [Luna] started chasing David around the car. As he chased, he twice pointed the gun at David with his finger on the trigger. After [Luna] lowered the gun the second time, David believed [Luna] was just trying to scare him and was not going to shoot him.

[Luna] continued to chase David around the car, with David asking what was [Luna]'s problem. [Luna] responded that David had disrespected him. A neighbor called out that if [Luna] did not stop she was going to call the police. [Luna] pulled back the slide of the gun, ejected a round of ammunition, picked up the ejected round, put it in his pocket and walked away.

[Luna] claimed Josephine told him that David had been molesting their 17-year-old daughter. He wanted to confront David, but Josephine told him not to. The following morning, when David returned from taking his mother to the hospital, [Luna] confronted him about the alleged molestation to which David responded, "she's not a baby" and told [Luna] to "get the fuck out of here." This was the claimed disrespect.

[Luna] claimed he only took the gun to David's house because his brother had convinced him that David might have a gun. [Luna] also claimed he only took the gun out of the waistband of his pants, because he did not want to accidentally shoot himself. After trying to kick in the front door, he noticed Denise and David running away. He approached David with the gun at his side and chased him around the car, yelling about David molesting his daughter. David threw his hands up and asked [Luna] to calm down, at which point [Luna] put the gun away. He denied ever pointing the gun at David.

Josephine denied ever telling [Luna] that David was molesting their daughter and she did not have any ...


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