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Victor Tovar v. On Habeas Corpus

February 21, 2012

VICTOR TOVAR,
PETITIONER,
v.
ON HABEAS CORPUS, RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 7]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

On September 26, 2007, the Tulare County District Attorney filed an information charging Petitioner in counts I through IV with attempted murder (Cal. Penal Code*fn1 §§ 664/187(a)) and in count V with shooting at an inhabited dwelling (§ 246). It was alleged as to counts I through IV that the attempted murders were willful, deliberate, and premeditated within the meaning of section 664(a). It was also alleged as to counts I through V that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22(b). It was further alleged as to counts I through IV that a principal personally and intentionally used and discharged a firearm within the meaning of section 12022.53(b), (c), and (e)(1). It was specifically alleged as to counts I through IV that Petitioner personally and intentionally discharged a firearm within the meaning of section 12022.53(c) and (e)(1).

On October 1, 2007, Petitioner pled not guilty to all the charges and denied the allegations.

Following a jury trial, Petitioner was found guilty of counts I, II, and V, but not guilty on counts III and IV. The jury found all of the allegations as to counts I, II, and V to be true except that it found the premeditation allegation as to count II to be not true.

Petitioner was sentenced to 37 years in state prison on count II. Petitioner was sentenced to 15 years to life plus 20 years on count I, to be served concurrently with count II. Petitioner was sentenced to 15 years to life on count V, to be served concurrently with count II.

The California Court of Appeal, Fifth Appellate District, affirmed the judgment on April 19, 2010. On August 11, 2010, the California Supreme Court denied the petition for review.

On March 1, 2010, Petitioner filed a habeas corpus petition in the Tulare County Superior Court. The petition was denied in a reasoned decision on March 3, 2010. On April 2, 2010, Petitioner filed a habeas corpus petition in the California Court of Appeal, Fifth Appellate District. The petition was denied without comment. On June 4, 2010, Petitioner filed a habeas corpus petition in the California Supreme Court. The petition was denied without comment on January 12, 2011.

Petitioner filed the instant federal petition for writ of habeas corpus on July 29, 2011. The action is proceeding on Petitioner's first amended petition filed September 14, 2011.

Respondent filed an answer to the amended petition on November 16, 2011. Petitioner filed a traverse on January 31, 2012.

STATEMENT OF FACTS*fn2

At approximately 11:35 p.m. on July 17, 2007, J.G. and his brother, A.G. were asleep in a bedroom at their residence in Visalia. The lights were off and the window closest to J.G. was open but the blinds and curtains were closed. Their parents, V.G. and T.G., were asleep in the living room of the house. J.G. was suddenly awakened by the sound of five gunshots. No one was hit with a bullet, although the boys' father, V.G., felt wood and debris falling on him and he located one of the bullets underneath a blanket he was using for a bed.

Just prior to the shooting, a female neighbor looked outside and observed the actions of two men. The two men moved quickly toward a window of the house across the street, and one of the men aimed a gun and shot it at a downward angle once into the window. The gun was about a foot from the window when the shot was fired. Then the two men ran around a corner to another window of the house where the same man shot into that window twice from close range, again aiming downward. The neighbor's husband then took over the watching. He witnessed the two men fire an additional two shots toward the house from a carport area. He noticed that one of the men was wearing a light gray or white T-shirt. He called 911 and shortly thereafter, [Petitioner] and the other man, B.S., were arrested.

Senior identification technician James Potts confirmed that the bullets were fired from [Petitioner's] gun. The physical evidence indicated that one bullet came through the first (east) window, and three bullets came through the window frame and blinds of the second (south) window. The technician believed one of three bullets that came through the south window was shot from the carport area. Three shell casings were found outside the windows, and another was found in the carport area approximately 130 feet away from the residence. Shoe prints were found in the dirt near the residence that were consistent with the soles of [Petitioner's] and B.S.'s shoes.

After [Petitioner's] arrest, he was interviewed by Detective Curtis Brown. In that interview, [Petitioner] confessed to doing the shooting, admitted he was a member of the Visa Boys, [FN 1] and indicated the shooting was "[p]ayback" against a Sureno. [Petitioner] claimed he did not know what room he shot into, or how many people were in the residence, but he assumed that "he" was there. He did not identify who "he" was, except that he was a Sureno. When [Petitioner] was asked if he wanted to kill him, [Petitioner] said, "I don't know," but added that he was "mad" because someone shot his "homie" the other day in a gang shooting. [FN 2] He admitted he did not care whether the Surenos in the house lived or died.

FN 1. Detective Brown explained that the Visa Boys was a clique or subset of the Norteno gang.

FN 2. Detective Brown testified that the "homie" [Petitioner] referred to was a Norteno gang member who had been recently shot in a drive-by shooting.

Further evidence was presented at trial on the issue of the gang involvement of both [Petitioner] and J.G., confirming that J.G. was a member of, or at least in close association with, the Southern or "Sureno" criminal gang while [Petitioner] was a member of the rival Northern or "Norteno" criminal gang. A number of prior incidents were indicative of such gang involvement. For example, on October 5, 2005, J.G. and [Petitioner] and two other boys came up to J.G. and one of them asked J.G. if he was a "Scrapa," which is a derogatory term used by Nortenos to insult Surenos. J.G. admitted that he hung out with Surenos, not Nortenos, but denied that he was a Sureno member. Nevertheless, he fought [Petitioner] after being called a "Scrapa."

On February 17, 2007, J.G. was standing in front of a residence with a group of Surenos when Nortenos drove by and started shooting. J.G. was shot in the leg. When police arrived, J.G. described the shooters as "Busters," a derogatory term used by Surenos to describe Nortenos. J.G. believed that he had been targeted by the Norteno gang. In May or June of 2007, a neighbor witnessed a group of 20 to 40 yelling at J.G. to come out of the house and fight them. The neighbor heard the Norteno mob use the term "[s]crap." J.G. testified that he was not home at the time. J.G.'s father, V.G., did not recall the incident.

Officer Steve Howerton was assigned to Sequoia High School in 2007, when [Petitioner] went to school there. Officer Howerton testified based on his observations that [Petitioner] was a Norteno gang member or associate at that time. [Petitioner] hung out exclusively with the other known Nortenos, and the only time Officer Howerton saw [Petitioner] next to a Sureno was when there was a confrontation brewing that would lead to a fight. [Petitioner] used the term "[s]crap" on more than one occasions, and admitted his allegiance to the Nortenos and his hatred toward the Surenos.

Officer Luma Fahoum testified as an expert on criminal gangs in Visalia. She explained that the Visa Boys, the group [Petitioner] identified himself with, was a clique that was part of the Norteno gang. She explained further that Nortenos and Surenos hate each other, that no insult between the two gangs goes unanswered, and that they are engaged in an ongoing war of violence and retaliation that includes murder and attempted murder, which are often accomplished through such means as shooting a rival gang member on the streets, drive-by shootings, and shootings at a rival gang member's inhabited house. Officer Fahoum was of the opinion that [Petitioner] was a Norteno gang member and that the shooting in this case was gang related. Her opinion was based, in part, on the prior incident with J.G. in which [Petitioner] approached J.G. with other gang members and used the term "[s]crap," and on the interview of [Petitioner] by Detective Brown (following [Petitioner's] arrest for the July 7, 2007 shooting) in which [Petitioner] used the term "[s]crap, confessed to doing the shooting, admitted his Visa Boys affiliation and indicated he sought "payback" against a Sureno for a shooting that had occurred the week before. She also noted that [Petitioner] admitted to being a Norteno gang member when he was previously booked at a juvenile detention facility on March 2, 2007.

[Petitioner] took the stand in his own defense. He testified that on the night of the shooting he was high on alcohol and marijuana and that he did not really know what he was doing or why he started shooting at the house, although he was "mad" because he could not get more beer and because his girlfriend was not able to come be with him. He claimed he did not know who lived in the house or if anyone lived there. He testified that Visa Boys was not a gang or associated with a gang, but was just a group that he and his friends made up. He said that although he hung out with Nortenos, he did not consider himself a gang member. In support of [Petitioner's] defense, two relatives testified that [Petitioner] was intoxicated that night. Also, a defense expert ...


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