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Victor P. Alfaro v. Mike Mcdonald

July 9, 2012

VICTOR P. ALFARO, PETITIONER,
v.
MIKE MCDONALD, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner currently confined at High Desert State Prison, is proceeding pro se with a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his May 2008 conviction for robbery with an enhancement for personal use of a firearm. Petitioner claims that (1) he received ineffective assistance of counsel at trial, and (2) there was no substantial evidence to support the firearm enhancement. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus be denied.

BACKGROUND

I. Facts

In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, provided the following factual summary:

After work on August 1, 2007, Miguel Lopez Ortiz [FN3] walked to the Western Union on Charter Way in Stockton to send money to Mexico. As Lopez left the Western Union, he noticed a red GMC van parked in the area with a license plate starting with the number 5, and three people inside. Lopez crossed the street and the van followed him for two blocks. At the intersection of Jackson and Van Buren, Victor and Simon got out of the van and approached Lopez. Victor stood in front of Lopez and Simon was behind him. Victor told Lopez "give me the cash" and showed Lopez the gun in his pocket. Lopez also noticed Simon had what appeared to be the outline of a handgun in his pocket. The display of the guns scared Lopez and he removed money from his wallet and handed it to Victor. At trial, Lopez described the gun Victor had as a .45-caliber handgun with a chrome top. Lopez saw approximately four to five inches of the gun because Victor had the gun in his pocket and was covering it partly with a shirt that was wrapped around his hand.

FN3. The parties refer to the victim as Lopez. We will refer to him as Lopez as well.

At approximately 5:15 p.m. on August 3, 2007, Telesfordo Zuniga was sitting inside his truck at his home on San Juan Avenue in Stockton and saw a red van stop in front of his house. Two young men got out of the van and ran. Police officers came shortly thereafter in response to dispatch notifying them that a witness was following a vehicle that was involved in a robbery and ended up in that area.

The two young men were identified as Victor and Eduardo Moreno. Officer Richard Hamblin found the two young men sitting on a porch, out of breath, sweating, and very nervous. When Officer Hamblin attempted to question Victor, Victor initially said he was walking around the neighborhood all day. After Officer Hamblin conducted a field "showup," he reapproached Victor and let him know he had been identified by a witness as being in the van. Victor responded: "I'm sorry for lying, I got nervous, I was in the vehicle." Officer Hamblin then informed Victor that he was identified as being one of the suspects in a beating and robbery of a farmworker that happened that day. Victor responded, "It just happened. I don't know." Simon was not implicated in this incident and Victor was not charged with any offense that occurred on August 3, 2007.

Defendants were charged and tried for the robbery of Lopez. The trial court admitted the evidence of the uncharged August 3 offense to prove identity as to Victor only. There is no dispute the trial court specifically considered the potential prejudicial effect of admitting testimony regarding the August 3 incident and determined it was outweighed by the probative value of the evidence to show identity under Evidence Code sections 352 and 1101.

Three witnesses testified regarding the August 3 incident, and the trial court admonished the jury about each witness's testimony. After the testimony of Telesfordo Zuniga, the trial court admonished the jury, "This testimony is directed only towards Victor Alfaro, not Simon Alfaro." Prior to the testimony of Officer Hamblin, the trial court admonished the jury, "The testimony is related as ... to Victor Alfaro only." Again the trial court admonished the jury before Officer Sidney Siv testified that the testimony "is also directed just towards Victor Alfaro."

The trial court also read the jury instructions on: evidence (CALCRIM No. 222), multiple defendants and the limited admissibility of evidence (CALCRIM No. 304), and evidence of defendant's statements (CALCRIM No. 358). At the end of these instructions and before the trial court continued instructing the jury, Victor's counsel objected. After a conference at the bench, the trial court excluded all of the testimony about the August 3 incident.

(Lod. Doc. C ("Opinion") at 2-5.)*fn1

II. Procedural History

Following his conviction in the San Joaquin County Superior Court in May 2008, petitioner was sentenced to thirteen years in state prison: three years for second degree robbery and an additional ten years for the firearm enhancement. (Cal. Penal Code §§ 211, 12022.53.) (Dkt. No. 1 ("Ptn.") at 1, 17-18.)

Petitioner appealed the judgment to the California Court of Appeal for the Third Appellate District. (Lod. Doc. A.) On January 26, 2010, the judgment was affirmed in a reasoned opinion. (Opinion.) Petitioner then filed a petition for review in the California Supreme Court. (Lod. Doc. D.) On April 14, 2010, the California Supreme Court summarily denied the petition. (Lod. Doc. E.)

Petitioner filed the instant petition on July 23, 2010. (Ptn.) Respondent filed an answer on December 10, 2010. (Dkt. No. 10.) Petitioner did not file a traverse.

ANALYSIS

I. AEDPA

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. ยง 2254, as amended by the Antiterrorism and Effective Death Penalty ...


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