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Octavio Gomez-Perez v. Mike Mcdonald

January 24, 2011




Petitioner Gomez-Perez, a state prisoner, proceeds pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner was convicted in the Placer County Superior Court, case number 622044017, of various offenses arising out of auto thefts and a home invasion, for which he was sentenced to an aggregate term of 62 years to life.


In the early morning of June 4, 2004, 68 year old Cesario Pinon awoke to the sounds of people walking and making noises in his house at 7429 Apple Hollow Loop in Roseville. He woke up his live-in partner Sarah Jedrzynski. A few minutes later, three strangers, with faces covered, entered the bedroom. One of the men, speaking in both Spanish and English, ordered Pinon and Jedrzynski to lie face down on their bed, to keep still, and to tell them where their money was. The intruders tied the couple at the wrists and ankles with electrical cord and duct tape, and proceeded to ransack their home. Pinon initially denied having any money, but after one of the men struck him multiple times on the left shoulder with a flat object, he gave the men the combination to their lockboxes. Pinon managed to work his hands somewhat free, but one of the men returned and retightened his bindings.

When Pinon no longer heard any noises, he climbed out of bed with his hands and ankles still bound. He noticed that the room was full of smoke and there were flames in the closet. As he hopped around the end of the bed, trying to locate Jedryzynski, Pinon tripped, fell, and lost consciousness. Jedrzynski managed to untie her hands, pushed herself through a window and ran to a neighbor's house, who then called 911.

Police officers and firefighters rescued Pinon from the burning bedroom and extinguished the fire. Pinon was taken to the hospital where he was treated for smoke inhalation and a high level of carbon monoxide.

Firefighters discovered that telephone cords had been cut, several small fires throughout the house had been intentionally set, and the range knobs on the gas stove were turned to the "on" position.

The couple's 2004 Buick LeSabre was missing from their garage. Parked down the street from the home was a 1994 Mercury Grand Marquis with no license plates, which had been stolen that morning from Daniel Dillon.

Also that day, a 1992 Nissan Sentra SER owned by Nathanael Merrill was stolen from in front of his house. Inside the Sentra were various items of personal property, including a Bible, circular saw and various construction tools.

On June 3, 2004, someone also broke into a Ford pickup truck - a company vehicle assigned to Jody Leach-- stealing a laptop computer, cell phone and camera.

Police activated the OnStar GPS system of the Buick LeSabre stolen from Pinon and Jedrzynski's garage and located the vehicle in a carport at Edison and Bell in Sacramento. Inside the LeSabre, police discovered Jedrzynski's purse, Pinon's driver's license, a piece of the radio from the stolen Nissan Sentra, and some of the items stolen from Merrill and Leach.

On June 5, 2004, shortly after midnight, two Sacramento County Sheriff's deputies pulled over a blue Pontiac Sunbird with a missing rear window, peeled steering column, and expired registration tags. Petitioner was driving; his passenger was Jose Humberto MaganaTorres. A search of the Sunbird yielded the Bible belonging to Merrill and keys to stolen the Buick LeSabre. There was also a cell phone displaying the name of "Heiner" plugged into the car charger.

At petitioner's apartment, officers discovered multiple items that had been stolen from the Pinon-Jedrzynski home and from the auto theft victims. Magana-Torres's fingerprints were found on Merrill's stolen Nissan Sentra, on Dillon's stolen Grand Marquis, and on Pinon's driver's license. A third person's prints, those of Heiner Villeda, were found on the Sentra and on the LeSabre.

After waiving their constitutional rights, petitioner and Magana-Torres were interviewed separately by Roseville Police Department Detective Calvin Walstad, with the assistance of a Spanish translator. When shown a photograph of Villeda, Magana-Torres stated, "He is Heiner. He's the person who did everything." When petitioner was shown the same photograph, petitioner stated, "He is Heiner" and "he is the one who told me to do everything." Petitioner also said that $1,500, a computer, telephone, jewelry, and digital camera were taken from the victims' house on Apple Hollow Loop. He denied hitting anyone but said he saw Villeda hit the male victim three times with a file from a knife block in the house. Walstad then traveled to Pinon's house. In the bedroom, he discovered a sharpening steel from a knife block in the kitchen. The handle of the sharpening steel had been broken in half.

In a joint trial, petitioner and Magana-Torres were convicted of three counts of auto theft, conspiracy to commit robbery, residential burglary, two counts of home invasion robbery in concert, theft from an elder, false imprisonment, false imprisonment of an elder, assault with a deadly weapon, two counts of conspiracy to commit murder, two counts of attempted premeditated murder, arson causing great bodily injury, causing injury to an elder, and three counts of receiving stolen property, with true findings on several great bodily injury enhancements. The trial court sentenced each defendant to an aggregate total of 62 years to life in state prison. Villeda, the third offender, was charged with the present crimes along with petitioner and Magana-Torres, but pleaded guilty to several of the counts prior to commencement of trial.

Petitioner and Magana-Torres appealed their convictions to the California Court of Appeal, Third District, alleging the same constitutional, evidentiary, instructional, and sentencing errors presented here. The state appellate court found no reversible error and affirmed the judgments. The California Supreme Court denied review. Although petitioner and MaganaTorres were tried together and filed their direct appeal in state court together, the pending federal petition concerns only the constitutionality of petitioner Gomez-Perez's convictions and sentence.


The petition presents five distinct grounds for relief; each will be separately set forth and discussed herein. Petitioner claims:

(A) The trial court's evidentiary rulings deprived him of his Sixth Amendment rights;

(B) The trial court erroneously gave a standard flight instruction (CALCRIM No. 372);

(C) The trial court failed to adequately clarify instructions on premeditation and deliberation following a question from the jury;

(D) Imposition of the upper term on Count 5 violated the rule of Cunningham v. California, 549 U.S. 270 (2007); and

(E) The court erroneously declined to stay the two terms imposed for robbery in Counts 5 and 6.

For the reasons that follow, it is recommended that each of petitioner's claims be


IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).


A. Evidentiary Admissions

For his first claim, petitioner contends that the trial court took judicial notice of

Villeda's guilty plea, and further admitted Detective Walstad's testimony as to a redacted statement made by Magana-Torres, although petitioner had no opportunity to cross-examine Villeda or Magana-Torres, thus depriving him of his right to confrontation under the Sixth Amendment.

1. Villeda's Plea

a. Additional Background*fn2

Outside the jury's presence, the prosecution called former co-defendant Villeda to testify about the events of June 3 and June 4, 2004. Despite a grant of immunity and the court's warning that he would be held in contempt if he refused to answer the prosecutor's questions, Villeda refused to testify, invoking his Fifth Amendment privilege against self-incrimination.

Subsequently, the prosecutor requested that the court to take judicial notice of Villeda's guilty plea to several of the counts with which defendants were charged. Defendants objected that the plea was inadmissible hearsay and violated their confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004).

The trial court took judicial notice of Villeda's guilty plea but ruled that, because the plea was too long to read to the jury, it would be summarized in a separate document. Ultimately the judicial notice summary submitted to the jury recited simply that on June 7, 2006, in case No. 62-044017, Villeda entered pleas of guilty to the theft of Dillon's Mercury Grand Marquis, Merrill's Nissan Sentra, home invasion robbery in concert against Pinon with infliction of great bodily injury, home invasion robbery in concert against Jedrzynski, false imprisonment of an elder, attempted premeditated murder of Pinon, and theft of the Buick LeSabre belonging to Pinon and Jrdrzynski. (Clerk's Transcript ("CT") at 978-79.)

In closing argument, the prosecutor suggested that Villeda's plea, considered along with other evidence, tended to show that he participated in the home invasion robbery along with the two defendants who were on trial.

b. Analysis

Petitioner contends that admission of information regarding Villeda's plea violated his right to confrontation under Crawford v. Washington, because the summary of the plea was testimonial and he was unable to cross-examine Villeda about his reasons for pleading guilty. Petitioner further argues that admission of the plea removed an element of the conspiracy charges from the jury's determination; namely, whether a member of the conspiracy committed the target crimes and the crimes as natural and probable consequences of the conspiracy.

The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, requires that a criminal defendant be afforded the right to confront and cross examine witnesses against him. See Pointer v. Texas, 380 U.S. 400, 403 (1965). In Crawford v. Washington, the United States Supreme Court held that the Sixth Amendment is violated when testimonial hearsay evidence is admitted under circumstances where the criminal defendant had no opportunity to conduct a cross examination. 541 U.S. 36, 68 (2004). While the Crawford Court specifically left "for another day any effort to spell out a comprehensive definition of 'testimonial,'" it gave examples: "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id.

Subsequently, the Supreme Court held that the core class of testimonial statements covered by the Confrontation Clause includes affidavits or declarations, made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, because such affidavits are "functionally identical ...

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