The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITIO N FOR WRIT OF HABEAS CORPUS
Petitioner is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Charles French Carbone, Esq.
Following a jury trial in the Merced County Superior Court, Petitioner was convicted of (1) murder with the special circumstance of robbery (Ca. Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(a) (count one)*fn1 ; (2) two counts of attempted robbery (§§ 211, 664) (counts two and four); and (3) robbery (count three). The jury did not reach a decision on whether a firearm was used in each count. (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).
Petitioner was sentenced to a determinate term of six years and four months, comprised of the five year upper term for the count 3 robbery and eight months for each of the count 2 and 4 attempted robberies, followed by a consecutive term of life without the possibility of parole for murder.
Petitioner filed a timely notice of appeal. On January 7, 2010, the California Court of Appeal, Fifth Appellate District modified the judgment by staying the sentence on count two, but otherwise affirmed the judgment.
Petitioner filed a petition for review. The California Supreme Court denied the petition on March 18, 2010.
Petitioner filed the instant petition for writ of habeas corpus June 13, 2011. Respondent filed an answer to the petition on August 24, 2011, and Petitioner filed a traverse on September 6, 2011.
In the early morning hours of April 15, 2006, brothers Jose Miranda (Jose) and Antonio Miranda Solorio (Antonio), and their friend, Javier Mendoza, were driving from a dance club to a house belonging to Antonio's aunt and uncle located in Merced County, where the three had been staying. Mendoza drove the car, while Jose was in the front passenger seat and Antonio in the back seat. On the way, Mendoza noticed another car following them. When they arrived at the house, the car behind them sped up; after Mendoza parked in the driveway, the other car stopped behind them "real fast." Antonio saw three men run toward their car. One man, who was carrying a small rifle, ran to the driver's side door and pointed the rifle at Mendoza, demanding money. Mendoza got out of the car and handed the money in his wallet to the man, which the man put in his pocket. Antonio tried to hide in the back seat by slumping down a few inches. At some point, the rifle hit the window or door where Antonio was sitting, but the man did not say anything or gesture to Antonio.
Antonio saw two figures in the dark on the car's passenger side. They pulled on Jose and said, "money." Jose said, "no money." Antonio saw the man with the rifle through the driver's side window at Jose, who was still in the car. The other two pulled Jose from the car on the passenger side. Antonio saw the man with the rifle run around the back of the car to the passenger side and heard another two to three shots. He could not tell if the other men had guns. Antonio saw the men run to their car, which looked like a Mustang with its top down, and drive off. Antonio got out of the car on the driver's side and ran to his brother, who was lying on the front porch. Antonio could tell the man with the rifle was African-American and he believed the other men were African-American because their voices "sounded black." Antonio, however, could not identify any of the men.
A Merced deputy sheriff was dispatched to the scene shortly before 2:00 a.m. On arrival, the deputy found a man down on the front porch who was not breathing. Paramedics arrived shortly thereafter but efforts to revive the man, identified as Jose, failed. The deputy questioned the visibly upset, Spanish-speaking men present at the scene through an interpreter. The men told her they had been robbed by three black adult males and described the car carrying the robbers as a two-door Mustang.
The pathologist who conducted Jose's autopsy found two gunshot wounds. One bullet entered his left shoulder, shattered the bone, and exited through the posterior. It was possible Jose was seated when he was shot. The size of the entry wound was consistent with a small caliber weapon like a .22. Another bullet entered through Jose's right shoulder and passed through his right lung and the aorta, triggering extensive and fatal bleeding. The pathologist recovered that bullet from the body, which appeared to be a small caliber bullet consistent with a .22. The pathologist opined the cause of death was bleeding due to the gunshot wound that severed the aorta.
Fernando Barrera's sister is marred to Brown. At the time of the crime, Barrera, who owned a 1998 Ford Mustang convertible, was staying with his sister and Brown at their apartment. Marcus Whitaker, who Barrera knew as "Feddy," also was staying at the apartment. On the night of the crime, Whitaker was driving Barrera's car with Barrera in the front passenger seat and Brown in the back seat. According to Barrera, another African-American male, who Barrera did not know, also was sitting in the back seat. As the men were trying to get the attention of some girls who were in another car, a third car cut them off. Whitaker began following that car. When the car turned into a private home driveway, they pulled in right behind it.
Barrera saw Whitaker go up to the driver's side of the victims' car and the driver get on the ground. Barrera also saw Brown and the unidentified man get out of the Mustang; Brown was struggling with the passenger on the passenger side of the victims' car and Brown's hands went into the car like he was hitting the passenger. The unidentified man was standing behind Brown. Barrera explained "Marcus Whitaker let a round off from the driver's side and hit the passenger and the passenger got out and I hear him yell, "'ay guey[,]'" which Barrera said would be translated as "oh shit" or "oh fuck." Barrera then got out of the car and yelled, "What the fuck." Whitaker told Barrera to get back in the car and he did so. Brown was backing up towards the trunk of the victims' car as the passenger was walking toward Brown when Whitaker "came around and just started letting rounds off." Barrera claimed that Brown and the unidentified man did not have guns. As Brown was heard struggling with the passenger just before Whitaker fired the first shot, Barrera heard Brown say to Whitaker "get him Nigger." Barrera and his three companions got into the Mustang and drove off, dropping the unidentified man at a convenience store. The remaining three then returned to Brown's apartment. Whitaker told Barrera not to say anything about the shooting. Barrera saw Brown and Whitaker splitting up the robbery money at the apartment.
Barrera did not know what was going to happen when he went to the scene with the others and denied participating in the robbery in any way. Barrera did not know why he did not call the police. He was afraid of his companions after what had happened. Barrera admitted that when he was first arrested, he told officers he did not know about the robbery and shooting, and he was not there. But after a third interview he started to tell the truth, revealing Brown's participation in the incident. Barrera said he decided to disclose what he had seen after talking to family members and people from his church, and because he felt guilty about what happened.
On cross-examination Barrera admitted initially lying to detectives about his presence at the murder scene and said he did so because he was afraid of Whitaker and concerned he or his family might be harmed. According to Barrera, there was no plan to commit a robbery and the robbery came as a shock and surprise to him. He acknowledged he was placed in a witness protection program or protective custody afer he told authorities the truth. He was subpoenaed to testify in Whitaker's case. Barrera said the only "deal" he had with the prosecution was to tell the truth. Barrera also acknowledged he was arrested in ...