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Ismael Viveros, Jr v. Michael Martel

October 3, 2011

ISMAEL VIVEROS, JR., PETITIONER,
v.
MICHAEL MARTEL, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

1. INTRODUCTION

Petitioner, Ismael Viveros, Jr., is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate term of life without the possibility of parole following his 2007 conviction by jury trial in San Joaquin County Superior Court for first degree murder with a robbery special circumstance, robbery, and illegal possession of a firearm. In addition, the jury found various firearm enhancements to be true. After a bench trial, the court found various prior conviction allegations to be true. Here, Petitioner challenges the constitutionality of his convictions.

II. CLAIMS

Petitioner presents several grounds for relief. Specifically, the claims are as follow:

(1) The trial court erred by denying his motion for judgment of acquittal because the evidence presented at trial during the prosecution's case in chief could support only a charge of extortion, not robbery.

(2) The evidence presented at trial was insufficient to support the jury's special circumstance finding that he committed the murder in furtherance of a robbery.

(3) The trial court erred by declining to instruct the jury on the relationship between circumstantial evidence and reasonable doubt, pursuant to CALCRIM 224.

(4) The jury was improperly instructed on the robbery special circumstance because CALCRIM 730 is misleading and states an element as a defense not required to be proven by the prosecution.

(5) The firearm discharge enhancements should be reduced from life terms to twenty years determinate terms because the judge erred in granting the prosecutions motion to amend the information after jury selection.

Petitioner's first and second grounds for relief both present sufficiency of evidence claims, and will be addressed together in section (V)(A), below. Petitioner's third and fourth grounds for relief both present challenges to jury instructions and will thus be addressed together in section (V)(B). Petitioner's fifth remaining ground for relief will be addressed individually in section (V)(C). Based on a thorough review of the record and applicable law, it is recommended that each of Petitioner's claims be denied.

III. BACKGROUND

The basic facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follow:

The eyewitness to the crimes was going to the victim's home to give an estimate for electrical work on the victim's garage. Defendant asked to come along; the three men had been friends for 20 years. They drove over in the Chevy truck that belonged to the eyewitness. Defendant was somewhat irritated with the eyewitness because the latter owed him $700-800 for some rims, but the eyewitness was unaware of any enmity between the victim and defendant, and did not have any reason to think defendant might want to harm the victim. When they arrived, the eyewitness did not see or hear anyone else at the victim's home. He hugged the victim in the doorway and went straight to the bathroom.

When the eyewitness returned from the bathroom, the victim and defendant had just finished snorting some "crystal meth" using a rolled $100 bill. The three went into the garage and drank some beer.FN1 Defendant began to argue with the victim, accusing him of claiming to be pimping defendant's sister. He pulled out a gun, which the eyewitness recognized as a chrome .357 revolver. The victim exclaimed, "'It's like that? It's like that?'" Defendant then demanded drugs and money (the victim apparently owed him money for some drugs). The victim queried whether defendant needed money, claimed that he had only $500 available, then pulled cash out of his pocket and handed it to defendant.FN2 Pocketing the money, defendant demanded drugs, but the victim slapped his pockets and denied having any more. Defendant told the victim, "'I got a lot of love for you Ruben, but you gots to go.'" He then shot him in the middle of the forehead. The eyewitness estimated that the gun was about a foot from the victim's head.

FN1. The eyewitness had drank seven beers before defendant joined him.

FN2. According to the eyewitness, it was five $100 bills folded

Defendant turned to the eyewitness and suggested that he should shoot the eyewitness as well. The eyewitness told him that he just wanted to get out of there, and walked out of the garage. Defendant followed and got into the truck. As they drove away, defendant told him, "That was a gan[g]ster hit. Ruben melted like butter." He kissed the eyewitness on his cheek and said, "Yeah, that mother fucker . . . , I will do a line for this mother fucker." The eyewitness drove defendant to his parents' home. He did not see the gun while they were driving, though the cab reeked of gunpowder. Defendant discarded the weapon at his parents' home, then the eyewitness drove defendant back to his car. The eyewitness reported the crime to his parole agent the next day.FN3

FN3. The eyewitness admitted to several felony convictions, which included auto theft, assault, gun possession, and other offenses.

A detective testified about various inconsistencies between the statements of the eyewitness to the police and at trial. The defense also introduced inconsistencies from the testimony of the eyewitness at the preliminary hearing. None of these, however, contradicted his testimony that defendant displayed the gun and demanded the victim's property before the victim offered him the money (his prior statement in fact being consistent with this account at trial). Another long-time friend of the victim had been at his house earlier in the day, along with a drywallerFN4 who was helping the victim fix up the house and who had a cot in one of the bedrooms closets in which he slept. The friend thought that the drywaller was "acting funny"; he had been drinking but not to the point where he would have fallen off the ladder he was using while sanding the ceiling. The friend left to bring gas to his stranded wife. At the time he left, the victim was chiding the drywaller for the slow pace of his work.FN5 The friend called the victim from his truck to let him know someone was arriving at the house.

FN4. The eyewitness did not know this person.

FN5. At trial, the friend minimized the degree of the disagreement. He had told a police investigator, however, that it was a heated argument.

The friend returned about an hour later. The front door was open and a stereo was loudly blaring. He did not see the drywaller as he headed straight for the garage. He found the victim gasping for breath. He tried to tend to him, and called for assistance. Emergency personnel arrived and took the victim to the hospital at 7:15 p.m. The victim died and an autopsy was performed the next day. Blood tests showed that the victim was under the influence of methamphetamine at the time of the shooting.

The drywaller owned a white Chevy Blazer with a blue stripe on its side. It was not there when the eyewitness arrived or when the friend returned. In letting her cat in the house, a neighbor of the victim saw a white, blue-striped Blazer parked in front of the victim's house. After hearing what sounded like a gunshot, she heard what she believed was the Blazer drive off at a high rate of speed. A second neighbor was sitting in her idling car in the driveway waiting for her husband. It was about 6:40 p.m. She saw a man, who appeared jumpy, smoking outside the victim's house. He went inside. A few minutes later he rushed out of the house to an SUV that she thought was a Blazer, and drove off at a high rate of speed. Her car idled very loudly, so she could not hear anything before her husband joined her and they drove off. Yet another neighbor was smoking on her front porch when she saw a white and blue Blazer speed erratically down the street. The police and emergency personnel arrived at the victim's house within 10 minutes after the Blazer left.

The victim had a .380 semiautomatic firearm in the house for protection. The firearm belonged to the friend, and the friend had seen it a few days before. The drywaller had previously played around with it. Neither the friend nor the police were able to find it.

The friend directed the police to the home of the drywaller. The Blazer was not there when an officer checked at 7:38 p.m., but when another officer went by a couple of hours later, it was parked out front. When other officers came by the residence between 3:00 and 4:00 in the morning on a cold and foggy night, they found the drywaller hiding between the garage and the back fence.FN6

FN6. The police apparently did not take the drywaller into custody, and never evaluated gunshot residue samples they obtained from him. His parents testified that he left the country for Central America shortly before the trial, before the defense could serve him with a subpoena to appear as a witness.

The wound did not have any gunpowder residue near it. This means that a gun such as a .357 had to have fired at the victim from a distance of greater than three feet. The bullet in the head of the victim "was most likely fired from a revolver chambered for either the .38 Special or a .357 Magnum cartridge." The police did not find any casings, which was consistent with the use of a revolver but not a semiautomatic weapon. Two hundred fifty-four dollars in assorted currency was found underneath a bloody pair of jeans that appeared to be cut open (presumably by the paramedics). In one of the pockets was a baggie that contained over eight grams of methamphetamine. The police arrested defendant the next day and searched his residence. They found a gun holster, a bag of ammunition of various calibers (one of which was a .357), and a .357 cartridge in a plastic bin outside the house. None of the bullets matched the bullet fragments retrieved from the victim's head.

Under police questioning, defendant's statement evolved over time, beginning with a denial of any interaction with the victim on that day (other than stopping by in the afternoon to pick up "crystal") and a claim that he and the eyewitness had been drinking beer in a park at the time of the shooting. At long last, defendant said he might as well admit shooting the victim because that was what everyone was apparently telling the police. He agreed that he had snorted a line with the victim in the kitchen and that he had been drinking beer in the garage. He agreed that he challenged the victim about making the untrue statements about his sister, and that the victim offered him money. But he claimed that at the crucial point he had gone blank while hearing a gunshot, at the same time insisting that neither he nor the eyewitness was the shooter or had a gun.

Lodged Doc. 8 at 2-8.

Following a jury trial, Petitioner was convicted of first degree murder occurring during the commission of a robbery, and second degree robbery. In addition, each conviction carried a penalty enhancement for personal and use and intentional discharge of a firearm proximately causing death. The jury also convicted Petitioner of possession of a firearm by a felon. Petitioner waived a jury trial and, following a bench trial, the judge found that Petitioner had sustained two prior serious felony convictions. He was sentenced to life in prison without the possibility of parole for the murder conviction, a consecutive minimum term of 25 years on one of the firearm enhancements, and a concurrent term of 25 years to life on the felon in possession conviction. Sentencing was stayed on the robbery conviction and its firearm enhancement.

Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The court affirmed his convictions with a reasoned opinion on October 24, 2008. Petitioner then filed a petition for review of the appellate court's decision in the California Supreme Court. The court denied the petition without comment on January 21, 2009. Following the exhaustion of his appellate remedies, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The court denied the petition with citation to In re Waltreus, 62 Cal.2d 218 (1965) (any claim raised and rejected on appeal cannot be renewed in a petition for writ of habeas corpus) and In re Dixon, 41 Cal.2d 756 (1953) (absent special circumstances, a writ of habeas corpus will not lie where the claimed errors could have been, but were not, raised on direct appeal).

Petitioner filed this federal petition for writ of habeas corpus on November 9, 2009. Respondent filed its answer on August 31, 2010, and Petitioner did not file a traverse.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief 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. ยง 2254(d). Although "AEDPA does not require a federal habeas court to adopt any one methodology," there are certain ...


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