The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Tulare, following his conviction by jury trial on August 24, 2010, of first degree murder (Cal. Penal Code § 187(a)). (CT*fn1 270, 272.) Petitioner was sentenced to serve an indeterminate term of twenty-five years to life plus one year. (CT 292-295.)
Petitioner timely filed a notice of appeal. On December 22, 2011, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Resp't's Answer, Ex. A.) Petitioner then filed a petition for review in the California Supreme Court. On March 14, 2012, the petition was summarily denied. (See Lodged Doc. No. 5.)
On April 2, 2012, Petitioner filed the instant federal habeas petition in this Court. The petition presents the following grounds for relief: 1) Defendant's waiver of his Miranda rights was not knowing and voluntary; 2) The prosecutor committed misconduct by referring to facts not in evidence; 3) The trial court's admission of lay opinion testimony violated his constitutional rights; and 4) The trial court admitted evidence of prior bad acts and prior jail time in violation of his constitutional rights. On July 26, 2012, Respondent filed an answer to the petition. On August 24, 2012, Petitioner filed a traverse.
Paula Ramos--Hidalgo had been romantically involved with defendant for about three years. She was like his wife. They lived in a campsite on a river embankment in Porterville with two tents, a fire pit, two plywood tables, and an outhouse. Paula also knew Pedro Meza. They had been friends for about five years. She had never been romantically involved with Pedro, although she did have sex with him on one occasion, long before she got involved with defendant.
Paula was four feet eleven inches tall. Paula estimated that Pedro was about five feet nine inches tall, and taller than defendant.
On March 2, 2009,FN2 at about 6:30 or 7:00 p.m., Paula and defendant were making dinner over their fire pit. Paula's face was bruised and scabbed from injuries inflicted by defendant. After they finished eating and their fire was fading, they heard whistling from up the embankment. They turned their flashlights and saw Pedro. Pedro came down to their campsite and asked what they were doing. He asked for a pipe to smoke his "ice," but they did not have a pipe.FN3 Pedro asked for at least a piece of aluminum. Paula only had a used piece with grease on it, but she gave it to him. Pedro invited them to smoke with him.
FN2. All dates refer to 2009 unless otherwise noted.
FN3. Detective Camacho testified that "ice" is a form of methamphetamine.
After Pedro smoked his drugs, Paula and defendant went into a tent with a candle and sat on the bed. Pedro squatted outside the tent. He said he was coming to pick up Paula and he was going to take her at that moment. He said to her, "I'm going to take you back, but this time it's going to be forever." Paula gave him a serious look and asked him what was going on; did he not know she was having a relationship with defendant. Defendant asked him, "[Don't you] realize that [she is my] woman[?]" Pedro was upset.FN4 He grabbed Paula's hand and tried to pull her up, but she resisted. Paula said to defendant, "Look, Pappy, what he's doing." Defendant remained calm, pulled Paula toward him, and said, "Hey, guy, calm down because she's my old lady and you will respect her." Pedro made fun of defendant and said, "What can you do to me?" and "What do you think, that you're going to hit me?"
FN4. Paula, however, denied that Pedro mentioned the bruises on her face.
At first, Paula did not take Pedro seriously, but she did when he pulled her forcefully. She realized he was upset, had decided to take her, and thought she would listen to what he was saying. Paula was afraid of both men because she did not know what was going to happen. She was worried how defendant would react. But she was not afraid that Pedro would rape her, nor did she indicate to defendant that she harbored such a fear. At no time did she believe that defendant's life was in danger or that Pedro was going to kill him, but she did think Pedro had come to fight and was physically larger than defendant. FN5
FN5. On cross-examination, Paula testified that she initially told the officers that defendant acted in self-defense. She told them that Pedro was there to cause trouble because he came to frighten and show disrespect. And she told them that she was afraid for defendant's safety.
At that point, defendant got up and left the tent. Pedro stood up and followed. After walking a few steps, Pedro met defendant, who was returning with a sledgehammer. Defendant struck Pedro's side with the sledgehammer. Paula thought defendant was afraid and was defending his honor, but she did not believe he was in any imminent danger. Pedro did not have time to defend himself. He fell toward defendant and held onto him, but did not go to the ground. Paula covered her head because she was afraid to watch. She knew, however, that defendant struck Pedro about 10 times. She was afraid that she would be hurt too. As defendant struck Pedro, defendant said, "It hurts, right? It hurts, right? ... This happened to you for having been disrespectful to women." Pedro did not respond.
When defendant told Paula he had finished killing Pedro, she saw Pedro on the ground. Defendant seemed frightened. He told Paula to grab some clothing because they needed to leave. He told her to help him bury Pedro, but she refused. About a minute or two after Pedro fell, defendant started burying Pedro. As Pedro felt dirt falling on him, he spoke. He told defendant, "Finish off killing me." Defendant answered, "Well, yes. I am going to finish killing you." Defendant grabbed the sledgehammer and hit Pedro two or three more times in the stomach. Pedro made no further sounds. Defendant put a carpet over Pedro and covered it with more dirt. Paula did not report Pedro's death because she was afraid defendant would do something to her. She did not believe that Pedro's killing was justified.
At 10:00 or 10:30 p.m., defendant and Paula went to Refugio Morales's house because Refugio was defendant's friend and they had nowhere else to go. Defendant was still wearing the same bloody clothes. He told Refugio what had happened and said he wanted to flee to Mexico. He asked Refugio for money, but Refugio did not have any. Defendant changed his clothes and threw the bloody ones in a garbage can.FN6
FN6. According to Refugio, defendant and Paula came to his house at about 7:00 or 7:30 p.m. that night, before it was dark. Defendant just wanted to talk. He said he wanted to go to Mexico to see his family. He asked Refugio for money to buy beer, but not specifically to go to Mexico. He just said he needed money. Refugio, however, was not working much at the time and did not have any money. The next morning, Refugio, defendant and Paula went to the bakery. Refugio saw defendant carry a tied plastic grocery bag and drop it into a trash can by a house. The Following Days
On March 5, Mario Renteria, who was homeless and had no place to stay, was talking with defendant. Mario had been staying under a bridge, and he asked defendant if he could stay at his campsite that night. Defendant agreed to let him stay at his campsite, so they walked from the bridge toward the campsite, taking all of Mario's personal belongings. When they were about 50 to 100 yards from the campsite, defendant told Mario to stop. Mario did not know why they were stopping, but he overheard defendant tell Paula, "Let's go cover up the boots." Defendant and Paula walked to the campsite down on the embankment, then returned and told Mario he could not stay there. Mario was able to determine the location of the campsite and he returned later to see what they were talking about. When he started cleaning the campsite, he saw boots sticking out of the dirt. As he picked up a boot, he realized it was attached to a leg. Mario walked to a nearby residence and called 911.
When officers arrived at the campsite, they observed Pedro's body, covered with dirt from his ankles up to his neck. His light-colored boots were sticking out of the dirt. Most of his body was covered with a carpet and then a layer of dirt. His head, which was near the fire pit, was partially uncovered and his right arm and hand were fully exposed. Shoe tracks were in the dirt and a small sledgehammer was lying nearby. No blood was apparent on the sledgehammer, and no knife was found at the scene. A video of the crime scene was played for the jury.
On March 6, defendant and Paula saw Benigno Rodriguez. Paula's face was still bruised and scabbed. Defendant told Benigno that he had beaten Paula and caused her injuries. Defendant also told him, in Paula's presence, that Pedro had tried to rape Paula.FN7 Paula remained quiet because she was afraid to contradict defendant. She was afraid he would say she was taking Pedro's side and she knew he was already thinking of fleeing.
FN7. Paula denied telling Benigno this herself.
The same day, defendant, Paula, Benigno, and a fourth person were taken into custody. When Detective Torres spoke to them at 11:30 a.m., he could smell alcohol from the group, but he could not identify the source of it. Defendant's speech was not slurred. Detective Torres took the group to the police station at 2:30 p.m. and stayed with them until the interviews were concluded later that night. Everyone was fed and allowed to sleep and use the restroom.
That night, shortly after midnight, Detective Camacho conducted a video recorded interview of defendant, which was played for the jury. In the interview, defendant explained that he had known Pedro for about two years. When Pedro arrived at the campsite, he smoked his drugs for about 15 or 20 minutes. Defendant offered him food, but Pedro said he just wanted to smoke. Pedro offered to share the drugs, but defendant and Paula declined. When Pedro finished smoking, he started saying he was going to take Paula away and defendant was not worth anything. Pedro said he would take Paula by force. Defendant thought Pedro wanted to kill him, rape Paula, and take her away. Pedro pulled at Paula. Defendant told Pedro to calm down. He said Paula was his wife and Pedro should not pull her. Pedro told defendant he was going to take Paula even if she did not want to go. Defendant told him to leave Paula alone. Pedro threatened to kill defendant, saying, "Shut up, son of a bitch, I'm going to kill you so I can take her and you[r] damn dogs too." He said, "I'm going to kill you right now.... I'm going to kill you and I'm going to take her and I'm going to kill your dogs." Pedro told defendant to calm down. Pedro said defendant was worth shit, and he said he was going to kill defendant. Paula said, "[C]alm down, calm down. I don't want nothing to do with you." Pedro was drugged and "all crazy," but defendant had consumed only about half a beer. Pedro removed Paula's shoes and defendant thought Pedro "almost wanted" to rape Paula right there in front of him.
When Pedro took Paula's shoes off, "[t]hat's when [defendant] started getting mad." He "just went and got the [sledgehammer]" from the small tent. It had a steel pipe handle, about 47 inches long. He struck a few blows on Pedro's chest and back with the handle.FN8 Defendant admitted he might have hit Pedro in the head; he could not see and Pedro may have bent over so that his head got in the way. After the blows, Pedro fell to the ground. Pedro told defendant to finish killing him, saying, "[K]ill me, kill me." Defendant told him, "[Y]ou are going to respect me, son of a bitch-me and my wife." Pedro yelled at defendant, "Kill me fool, you'll see, if not[,] I'm going to kill you if you don't kill me." Because Pedro said this and because "everything had passed already," defendant took a shovel and started throwing dirt on Pedro not even a minute after he fell. Defendant said to Pedro, "[W]hy am I going to kill you? I'll just throw dirt on you like that." Defendant knew Pedro was still alive, but he nonetheless decided to throw the dirt on him. Defendant did not hit Pedro again after he fell; he just left him there. Defendant thought, "If he gets up, well oh well and if he doesn't[,] well...." Pedro stopped moving and his chest did not rise and fall, but defendant did not know if Pedro was still breathing when he buried him. Defendant kept burying him until everything but his feet were buried. Defendant threw the sledgehammer into the river next to the campsite.FN9
FN8. Defendant explained that he did not strike Pedro with the small sledgehammer that was at the campsite.
FN9. Detective Camacho later went to the crime scene and waded through the river near the campsite, but could not find the sledgehammer.
During the incident, defendant did not see Pedro with any weapon. Pedro, however, was bigger than defendant and weighed twice as much. Defendant was afraid of Pedro because of what he was saying to him. After beating Pedro, however, defendant was no longer afraid. He was sorry for killing Pedro and thought he may have overreacted. But he did what he could to defend himself. Pedro wanted to kill him.
Defendant also explained that he killed Pedro because Pedro wanted to rape Paula. Defendant loved Paula very much. Paula did not help defendant kill Pedro, other than giving defendant the shovel.
After burying Pedro, defendant and Paula went to Refugio's house and stayed there. Defendant told his friend, Benigno, what had happened and that he had killed Pedro. The next day, defendant disposed of the clothes he was wearing by throwing them in a trash can. On Thursday, March 5, defendant, Paula, and Benigno went back to the campsite to get some clothes.
Defendant admitted he was jealous regarding Paula and he had hit her two weeks ago. Her current bruises were from that incident. He got jealous because some men on the street told him they wanted to do things to Paula. Defendant explained that he and Paula argued and fought a lot. She was aggressive and liked to fight, especially when she drank beer. Defendant would not say how often he hit Paula, but it was not as often as twice a week.
The Autopsy and Further Investigation
On March 8, Dr. Walter conducted an autopsy of Pedro's body. He reported that Pedro's body was five feet seven inches long, weighed 195 pounds, and exhibited signs of early decomposition. Pedro was a well-developed and well-nourished 38--year--old man. His blood contained 275 nanograms per milliliter of methamphetamine and 0.20 percent alcohol. A methamphetamine level of 100 nanograms per milliliter or more is considered toxic or poisonous, but heavy users can sometimes tolerate a high level. Methamphetamine can cause euphoria and confidence, or it can cause paranoia and aggression at higher levels. The reaction varies from user to user. A 0.20 percent blood alcohol level can be achieved by drinking 10 beers in one hour. However, decomposition of a body creates artificially high alcohol levels due to the ethanol produced by anaerobic bacteria.
Walter described four lacerations to Pedro's face and forehead, and six to the back of his head, all caused by the skin splitting when it was hit by a blunt object. Many of the lacerations had an elliptical configuration. Pedro's jaw was completely fractured and displaced. Walter believed Pedro's head was struck 11 times.
Walter identified several bruises on Pedro's chest, back, and arms. Walter considered the arm wounds to be defensive. Pedro suffered multiple rib fractures, suggesting he received about four blows to his chest and five or more to his back. Some of his broken ribs were pushed into his lungs. Pedro suffered a kidney laceration and peritoneal hemorrhage, and a subarachnoid hemorrhage in his brain, all due to blunt force trauma. Walter concluded the cause of Pedro's death was multiple blunt force trauma. He believed the injuries were consistent with Pedro's being hit with the edge or handle of a sledgehammer, or with a pipe, baseball bat, or tire iron. His injuries were not consistent with his being hit with a fist.
Detective Meek, who was present for the autopsy, went through Pedro's clothing and personal items, which included about $19, a candy, tissue, and lip balm. Meek did not find a knife on Pedro.
On March 9, Detective Ramos spoke to Paula, who said that Pedro asked her if she wanted to go with him because defendant had beaten her and Pedro saw the bruises on her face. Paula explained, "[He's] going to me, and then he saw how I was, and look how you have her all beat up, all fucked up, and then, like, what happened."
The same day, Detective Torres spoke to Refugio. Refugio said defendant and Paula came to his house on Monday at about 9:00 p.m.FN10 Refugio told Detective Torres exactly where defendant had disposed of the bag, but Torres learned the garbage had already been picked up.
FN10. We take judicial notice that March 2 was a Monday. (Evid.Code, § 452.) Criminalist Ken Penner found no hair or blood on the small sledgehammer.
Defendant testified on his own behalf. He explained that on March 2, he and Paula had just finished eating when Pedro came to their campsite and started whistling. It surprised defendant because Pedro was not defendant's friend and he never visited them. Pedro came down to the campsite and asked for a pipe or some foil. Defendant and Paula sat in the tent and Pedro was speaking loudly and rudely. He smoked, then asked Paula what the hell she was doing there and why she was living there. He told her he was going to take her. Defendant found this disrespectful because Pedro knew very well that Paula was defendant's woman; Pedro would see them on the streets and he would see that Paula was defendant's lady. Pedro called defendant a "fucker," and told him he was "worth shit" and was "fuck[in'] shit." Pedro said he was going to beat defendant and defendant could not do anything to him. Pedro was serious and mad, and he yelled loudly at defendant. Defendant kept quiet because he was "quite afraid right away." He knew Pedro was bigger, and he thought, "He's going to beat the crap out of me." When defendant told Pedro to calm down, Pedro got angry and told him to "shut the fuck up." Pedro appeared to be getting more and more aggressive. It was clear to defendant that Pedro had come to fight. Defendant was afraid because he knew Pedro could kill him. He did not approach Pedro to fight because Pedro was bigger and he would win. At this point, Pedro got down close to Paula, took her hand, and told her he was going to take her. He started pulling her up. Defendant was afraid of Pedro's size and he was afraid Pedro was going to kill him. Paula told Pedro, "No. I'm not going anywhere. I'm here with my husband here in the-in the house." She said to defendant, "Look at[,] Pappy. Look at what [he's] doing." Paula looked afraid and defendant did not know what to do. He got up and said, "You know, Mami, I'm going to go to the bathroom." Pedro stared angrily at him. Defendant went instead to the small tent where he saw the sledgehammer. When he turned around, Pedro was already walking toward him. Defendant was surprised and scared. Pedro always carried a blade and defendant did not know if he had it now. Defendant again thought, "He's bigger than me, and he's going to beat the crap out of me." Defendant saw in Pedro's face that he was going to come at him, so defendant struck a blow to Pedro's left shoulder. He hit him with the ball and the handle of the sledgehammer. Pedro, who was even angrier now, threw himself at defendant, grabbing him and taking him backward. Defendant threw the sledgehammer and was able to break free from Pedro's grip. Pedro got tangled in the hammock, so defendant retrieved the sledgehammer and struck Pedro in the stomach. This time, Pedro fell to his knees, but he grabbed defendant again. Defendant believed that if Pedro got up, he would kill him. Defendant was very afraid. As Pedro was getting up, defendant struck him again. Pedro tried getting up again and defendant struck him because he feared Pedro would get him. At some point, Pedro remained on the ground. "[W]hen he was already dying," Pedro told defendant, "Kill me or else I'm going to kill you, you fuck[in'] bastard." Defendant still believed Pedro had the ability to kill him. Defendant thought Pedro was bigger, had a lot of strength and power, and was going to get up. Defendant had already hit him several times with the sledgehammer, but he would not calm down.
After burying Pedro, defendant was afraid that Pedro's family would come to kill him, so he told Paula, "Let's go. Let's go to see who can help me to see what we can do." They went to Refugio because he was defendant's only friend.
On cross-examination, defendant testified that he had a couple of sledgehammers. The one he used to kill Pedro he had thrown into the river. It was longer than the one at trial.
Defendant explained that Pedro was being disrespectful to him and to Paula.
Defendant was not offended or angry; he "just kept calm. Quiet." He was "just afraid." He did not know what to do because, as he put it, "[I]f I stood up to him, he was going to fuck me up. I couldn't get mad at him because if I fought him, he was going to fuck me up right there." Defendant was "all afraid already" that Pedro was going to "fuck [him] up right there when [he] was sitting down." Defendant had to defend himself because Pedro was bigger. Defendant went to find a stick or something to make Pedro calm down. Defendant found the sledgehammer, then hit Pedro with it four or five times, but not more than 10 times. When Pedro fell, his head hit a rock next to the fire pit.
Defendant testified that a few months earlier, Pedro had come to his campsite and tried to do things to Paula in front of him. Pedro had taken his pants down. That was the reason defendant knew Pedro did not have good intentions when he came. Defendant conceded that he did not mention this in his recorded interview, but he explained that he talked to the detective later when they walked to the car.
Defendant agreed that after he struck Pedro with the sledgehammer several times and he was "already dying," he said, "Kill me, or I will kill you," and defendant was afraid Pedro was going to kill him. Defendant denied putting dirt on Pedro when he was still alive. Pedro did not appear to be alive and Paula said he was dead.
Defendant explained that Pedro did not hit him, but Pedro was bigger than defendant. That was why defendant got the sledgehammer. He had to defend himself. If he had allowed ...