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Vadim Zakharchendo v. Domingo Uribe

May 3, 2012

VADIM ZAKHARCHENDO, PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on January 18, 2008 in the Placer County Superior Court on charges of robbery in concert, burglary, false imprisonment, dissuading a witness, and using and possessing a firearm in connection with those crimes. He seeks federal habeas relief on the ground the trial court's failure to stay the sentence imposed on his false imprisonment conviction constitutes error under California Penal Code § 654. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

FACTUAL AND PROCEDURAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:

On the afternoon of May 23, 2006, Elijah Fejeran, Semisi Vavae, Desario Wilson and defendant drove to Granite Bay in Fejeran's van for the purpose of committing a robbery. They parked the van in a residential neighborhood, defendant and Vavae got out and walked down the street to one of the homes, and the other two remained in the van. Defendant was armed with a handgun.

Two teenage boys, E.J. and A.J., lived at the home with their mother, and their mother's cousin and aunt. E.J. and A.J. had just gotten home from school; there were no others in the house.

A.J. was in the kitchen getting something to eat when E.J. heard a knock at the door and went to answer it. E.J. opened the front door and saw defendant standing there. Defendant asked for someone by a name E.J. did not recognize, and E.J. told him there was nobody there by that name. Defendant then pulled out a gun and pointed it at E.J. Defendant told Vavae, who was standing behind him, to watch E.J. while defendant went after E.J.'s brother. Defendant walked into the kitchen and ordered A.J. to lie down on the floor. He then yelled for Vavae to bring E.J. into the kitchen. Vavae took E.J. into the kitchen and told him to lie down on the floor near his brother and put his hands over his head. E.J. complied. The boys were told not to get up.

Defendant gave Vavae the handgun and left him with the boys, while he walked through the house gathering up items to steal. At some point, defendant asked the boys where the money was kept, and A.J. directed him to a jar in the kitchen where their mother had money she was saving to buy them braces. The intruders found the jar, which contained approximately $7,000 in cash. Defendant also asked where their mother kept her jewelry, but the boys did not know.

About an hour and a half after defendant and Vavae departed the van, they called Fejeran and directed him to drive to the victim's residence. Fejeran did so and backed the van up to the garage.

Defendant and Vavae took the boys into a bedroom, tied their hands behind their backs, and secured them to a dresser. They told the boys that if they told anyone or called the police, they would have their friends blow up the house. Defendant and Vavae then loaded items into the back of the van and departed. The boys heard the garage door close.

After the intruders departed, the boys were able to free themselves within 10 to 20 minutes. However, they did not call the police because of the threat to blow up their house. Instead, they went to a neighbor's house and called their mother who, at the time, was on her way home. The victim's [sic] mom called the police.

A search of the home revealed that the intruders had taken the cash jar, $50,000 worth of jewelry, a laptop computer, a video game station, a movie projector, an air gun, and an ornamental dagger. Some of these items were later recovered from a pawnshop, where they had been left by defendant and another man two days after the robbery. The dagger was found during a search of defendant's home.

(Opinion at 2-4.)

Petitioner was convicted after a jury trial in Placer County Superior Court and sentenced to an aggregate prison term of 29 years and four months on January 18, 2008. He filed a timely notice of appeal on February 22, 2008. The judgment was affirmed by the Court of Appeal for the Third Appellate District in an unpublished opinion issued on April 13, 2009 and the California Supreme ...


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