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Adrian N. Cortez v. Ken Clark

March 14, 2011


The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court



On January 19, 2010, Adrian Nathaniel Cortez ("Petitioner"), a California state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus by a Person in Custody pursuant to 28 U.S.C. § 2254. [Doc. Nos. 1, 8.] In his Petition, Petitioner alleges two grounds for relief: (1) there was insufficient corroboration of the accomplice-witness testimony presented at trial, and (2) the trial court erred in instructing the jury not to speculate as to why the accomplices were in custody. [Doc. No. 4.] Under the heading of his third ground for relief, Petitioner joins in "any" of the arguments beneficial to him found in a co-defendant's opening brief seeking state habeas relief. [Doc. No. 4.] Petitioner properly exhausted his first two claims at the state level, with the California Court of Appeal denying relief on the merits on October 2, 2008 and the Supreme Court of California denying review on January 14, 2009. [Lodgment Nos. 2, 4.]

On March 19, 2010, after the original Petition was dismissed without prejudice for failing to name a proper respondent and failing to satisfy the filing fee requirement, Petitioner filed a First Amended Petition with Ken Clark as the new respondent. [Doc. Nos. 2, 3, 4.] On June 14, 2010, Respondent Ken Clark ("Respondent") filed an Answer. [Doc. No. 13.] After being granted an extension of time, Petitioner filed his Traverse on October 19, 2010. [Doc. No. 26.] On January 14, 2011, after both parties consented to magistrate jurisdiction, this case was reassigned to Magistrate Judge William McCurine, Jr. pursuant to 28 U.S.C. § 636(a). [Doc. Nos. 4, 13, 30.] After reviewing the First Amended Petition [Doc. No. 4], Respondent's Answer and Memorandum of Points and Authorities in support thereof ("Answer") [Doc. No. 13], Petitioner's Traverse [Doc. No. 26], and all of the supporting documents and pertinent state court lodgments, the Court DENIES the Petition for the reasons stated below.


Title 28, United States Code, section 2254, subsection (e)(1) provides: "[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc) overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (stating that federal courts are required to "give great deference to the state court's factual findings."). Accordingly, the following facts are taken from the California Court of Appeal's opinion. [Lodgment No. 2, pp. 1-7.]


I. Introduction

A jury found Adrian Nathaniel Cortez and Jahaziel Fausto guilty of conspiracy to commit assault with a deadly weapon or with force likely to produce great bodily injury (Pen. Code,*fn1 §§ 182, subd. (a)(1), 245 subd. (a)(1) (count 1)) and first-degree murder (§ 187 subd. (a) (count 2)). With respect to count 1, the jury found that each defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), each defendant was a principal in the offense, and at least one principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1), each defendant was a principal in the offense and at least one principal personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (d) and (e)(1). In addition, with respect to count 2, the jury found that Fausto personally used a firearm in the commission of the offense (§ 12022.53, subd. (a)).

Cortez waived his right to a jury trial on two prior conviction allegations and admitted that he had suffered a prison prior (§§ 667.5, subd. (b), 668) and a strike prior (§§ 667.5, subds.(b)-(i), 1170.12). The trial court sentenced Cortez to a total term of 76 years to life in prison and sentenced Fausto to a total term of 50 years to life in prison.

On appeal, Cortez claims that there is insufficient corroboration of the testimony of two accomplices presented at trial to support his convictions. Cortez also claims that the trial court erred in instructing the jury not to consider why the accomplices were in custody. Fausto claims that the trial court erred in precluding a potential defense witness from testifying on the ground that the witness refused to submit to full cross-examination, invoking her privilege against self-incrimination. In a related claim, Fausto maintains that the prosecutor violated Fausto's constitutional right to present witnesses on his own behalf by improperly causing the witness to invoke her privilege against self-incrimination, leading the trial court to refuse to allow the witness to testify. Fausto also claims that the trial court erred in modifying a jury instruction that Fausto requested concerning imperfect self-defense. Both defendants also raise numerous claims pertaining to their sentences. We reverse the judgment as to the defendants' sentences on count 1, vacate the defendants' sentences, and remand the matter for sentencing. We affirm the judgment in all other respects.

II. Factual Background

A. The People's evidence

1. The murder

On October 16, 2004, Ignacio Manzo (Ignacio) was at a park in Chula Vista along with several friends and his brother, victim Arturo Manzo (Arturo). Arturo was a member of the Otay gang. At some point during the day, Arturo went to a nearby restaurant. Around the same time that Arturo was walking back from the restaurant to rejoin the group in the park, Fausto approached. Fausto began asking the people in the group, "Where are you from?"*fn2 Moments later, as Arturo approached the group, Fausto asked Arturo the same question. Arturo responded by saying, "'Otay.'" Fausto then began shooting at Arturo with a gun. Ignacio ran for cover. Shortly thereafter, Ignacio saw Fausto leave the scene in a waiting car.

Arturo died as a result of the gunshot wounds he received. An autopsy revealed three gunshot wounds, two in Arturo's torso, and one in his arm. Police found a total of five shell casings from a .32-caliber gun within 15 feet of Arturo's body.

2. Accomplice testimony

Varrio Chula Vista (VCV) gang members Raymond Pacheco and William Parra testified at trial. Pacheco testified that in October 2004, he was a VCV gang member as were Cortez, whom he knew as "Trusty," and Fausto, whom he knew as "Bullet." Cortez was the leader of the VCV gang. Pacheco stated that in the Fall of 2004, a member of the Otay gang - a rival gang to VCV - shot VCV member Benjamin "Rocky" Moreno. On October 16, 2004, several gang members held a meeting at which this shooting was discussed. Cortez, Pacheco, Parra, Fausto, and Jacob Sowder were among the VCV gang members who attended the meeting. At the meeting, Cortez asked whether anyone would be willing to shoot an Otay gang member in retaliation for the shooting for Moreno, and Fausto and Sowder volunteered to do so. Parra agreed to drive. Cortez gave Fausto a gun. As the meeting disbanded, Fausto asked Pacheco if he wanted to go along with Fausto to the shooting. Pacheco responded in the affirmative.

Pacheco testified that he, Parra, Fausto, and Sowder left the meeting and got into Parra's car. Parra drove the group around looking for Otay gang members. When they saw several people standing around in the park, Parra parked the car. Pacheco saw Fausto get out of the car and approach the people who were standing in the park. Pacheco then saw Fausto fire a gun at Arturo. Arturo fell to the ground, and Fausto fired more shots at Arturo while he was on the ground. Fausto ran back to Parra's car. Once in the car, Fausto said that he got "the guy from Otay."

Parra testified that on October 16, 2004 Cortez asked for volunteers to retaliate against the Otay gang for shooting Moreno. Parra stated that Cortez gave Fausto a gun, and that Fausto shot Arturo. Parra stated that he accompanied Cortez to Alec Pojas's house a few days after Arturo was shot. Cortez sold Pojas a gun that was similar in appearance to the gun that Parra had seen Cortez give to Fausto on the night Arturo was killed.

3. Gang evidence

Sergeant Eric Thunberg of the Chula Vista Police Department testified as an expert on criminal street gangs. Sergeant Thunberg explained various aspects of gang culture, including the notion that gang members are expected to assist the gang in retaliating against anyone who shows disrespect for the gang. Sergeant Thunberg described the history of the VCV gang, noting that it was first documented as a gang in the 1970s. The Otay gang is a rival gang to the VCV gang. Sergeant Thunberg opined that the charged offenses were committed for the benefit of the VCV gang, to retaliate against Otay for its shooting of a VCV gang member.

B. The defense

Fausto testified at trial. He admitted that he was a VCV gang member and that he had shot Arturo. Fausto denied that there had been a meeting of VCV gang members on October 16, 2004 at which Cortez requested that VCV members retaliate against the Otay gang. Fausto claimed that on the evening in question, he had been planning to attend a party he had learned about from his friend, Katrina Lopez. Parra drove Fausto, Pacheco and Sowder around, looking for the party. Fausto saw a group of people in the park and got out of the car to see if anyone in the group knew the location of the party. Fausto testified that Arturo came towards him in an aggressive manner while shouting Arturo's gang's name. Fausto stated that he shot Arturo because he believed Arturo was about to physically attack him.

Cortez's sister and brother-in-law testified that Cortez was living in Murietta, 60 miles north of Chula Vista, in the weeks preceding and following the killing. Cortez's sister testified that Cortez attended a family barbeque and babysat for ...

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