The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 AND DENYING CERTIFICATE OF APPEALABILITY
On November 29, 2011, Joshua Christopher Diaz ("Petitioner"), a California state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction. (Doc. No. 1 at 6-7.) On April 13, 2012, Mike D. McDonald ("Respondent") filed a response in opposition. (Doc. No. 17.) On August 20, 2012, the magistrate judge issued a report and recommendation to deny the petition. (Doc. No. 19.) No objection to the magistrate judge's report and recommendation has been filed to date. For the following reasons, the Court denies the petition for writ of habeas corpus.
Petitioner argues that the prosecutor presented insufficient evidence to support the gang enhancements to his felony convictions. (Doc. No. 1 at 6.) Petitioner also argues that the court prejudicially erred by supplementing the standard jury instruction with additional language. (Doc. No. 1 at 7.) The following facts are taken from the California Court of Appeal decision in People v. Ruiz et al., No. D053520, 2010 WL 3749195 (Cal. Ct. App. Sept 28, 2010). (Lodgment No. 5.) The facts are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1):
In November 2006 Ruiz and his girlfriend, Ebony Miranda, lived in a house in Alpine, which was owned by Natasha Darby. Ruiz and Darby were cousins through marriage. Rachel Cohen also lived in the house. Cohen's sister, Angelica R., and Cohen's brother-in-law, Joseph Sanchez, stored their belongings at the house and occasionally stayed overnight at the house. Although they did not live there, Diaz and Jose Morales spent a lot of time at the house in Alpine. All of these individuals had two things in common: they smoked methamphetamine daily; and they supported their drug habit by stealing vehicles and selling the rims and stereos from the vehicles. Ruiz was the leader of "shot caller" of the vehicle-stealing operation. Cohen sometimes served as lookout when the men stole vehicles.
Ruiz was a member of the Imperial Beach Dukes gang, and his moniker was "Big Drowzy." Diaz and Morales were members of the El Cajon Locos gang. Diaz's moniker was "Little Drowzy," and Morales's moniker was "Peewee." . . . .
On the day after Thanksgiving, Cohen, Ruiz, Miranda and Darby were in the Alpine house. Ruiz summoned Cohen in an angry voice and asked: "What kind of sick person do you think I am?" Ruiz accused Cohen of telling Miranda that he had slept with Darby. When Cohen denied this, Ruiz pushed her head into the wall and then pulled her by the hair into his bedroom, where Miranda and Darby were sitting on the bed. Ruiz threw Cohen on the floor and punched her in the head a few times while threatening to kill her, her sister and her brother-in-law. Ruiz then told Darby to get some trash bags and tape the bags on the floor. After complying with this order, Darby rolled Cohen onto the taped bags. Ruiz threw Cohen some handcuffs and zip ties and told her to put them on, but she was unable to do so. Ruiz het her and directed Darby to put them on Cohen. Darby put the handcuffs on Cohen's ankles and the zip ties on her wrists.
Next, Ruiz told Darby and Miranda to leave the room, and he turned up the radio. Ruiz punched Cohen and then showed her some bolt cutters and asked her if she wanted to lose a finger or toe. Cohen replied by crying and Ruiz hit her again. When Cohen said she [would] rather lose a toe, Ruiz started to squeeze the bolt cutters around her little toe, but was interrupted by a phone call and left the room. When he returned, Ruiz blindfolded Cohen and moved her into the closet of Darby's room, where he left her for what seemed like hours. Cohen awoke when water was splashed on her face. She heard Ruiz, Darby and Miranda laughing and joking that she was dead. Ruiz hit Cohen and placed a chair over her so she could not move her arms. Ruiz also told Cohen, who was blindfolded, that Diaz and Morales were there. Cohen heard Ruiz tell Diaz and Morales she had informed Miranda that Ruiz and Darby had slept together. Ruiz then ordered Cohen: "Tell my two homies what kind of sick [f - - -] you think I am." Ruiz told Cohen he was going to teach her a lesson and turned up the radio. Ruiz, Diaz and Morales began hitting and kicking Cohen on all sides of her body. Although Cohen could not see because of the blindfold, she recognized the voices of Diaz and Morales.
On Sunday, Diaz picked up Angelica and Sanchez from a hotel in La Mesa and drove them to the Alpine house. When they arrived, Ruiz asked Angelica and Sanchez if they had been talking about him sleeping with Darby. Angelica said she did not know what Ruiz was talking about, which angered him. After Angelica asked where her sister was, Ruiz escorted her to his bedroom where Cohen was lying on the floor on top of plastic bags and underneath a chair. She was blindfolded with her wrists and ankles bound, and she was crying. Diaz removed Cohen's blindfold, helped her get up and walked her to the living room, where everyone was gathering. Ruiz then punched Sanchez, knocking him to [the] floor. Ruiz started kicking Sanchez. Angelica started screaming, and Miranda punched her in the mouth. Sanchez was dragged to one of the bedrooms, Angelica was thrown into a closet and ties to the clothes rod, and Cohen was taken back to Ruiz's bedroom, where she fell asleep.
When Cohen woke up, she was blindfolded and started shaking. Ruiz and Diaz told her to stop playing around. Three people started hitting and kicking her. They stopped when Cohen said she was going to throw up. Diaz and Morales took Cohen to the bathroom where she vomited. When they brought her back to the bedroom, Cohen passed out.
Meanwhile, after allowing Angelica to use the bathroom, Ruiz moved a mattress into the room and placed her on it. Ruiz told Angelica he would let her escape out the window and handed her his revolver. He asked her to shoot him with the gun. When Angelica tried to shoot him, Ruiz said, "Tricked you," and showed her the bullets were in his hand.
Shortly thereafter, Cohen and Angelica heard a shotgun blast. Morales had accidently shot himself, grazing his testicles. Ruiz told Diaz to take Morales to the hospital, and Miranda and Darby accompanied them. Ruiz stayed behind in the house and segregated Sanchez, Cohen and Angelica. Ruiz placed Angelica on the bed and lay down next to her. Angelica testified that Ruiz raped her at this point. After a few minutes, Ruiz told Angelica she had five minutes to get herself, Cohen and Sanchez out of the house before he killed them. Angelica managed to extricate Cohen and Sanchez and the three of them left the house. The trio stole a neighbor's car and drove to the residence of Sanchez's brother in Lemon Grove and later to a motel, paying for the room with money from a purse that was in the car they had stolen. . . El Cajon Police Detective Royal Bates of the department's gang task force testified the El Cajon Locos gang's primary activities included assault with a deadly weapon, auto theft, murder, narcotics sales and vandalism. Diaz and Morales were members of the El Cajon Locos, and their monikers were "Drowzy" and "Pee Wee." Ruiz had been closely associated with the El Cajon Locos since the early 1990s, and most of his criminal activity was with members of this gang.
Detective Michael Speyrer of the sheriff's department testified that Ruiz was a member of the Imperial Beach Dukes gang, and his monikers were "Drowzy," "Mr. D.," and "Big Drowzy." Speyrer said that if more than one gang member has the same moniker, the less senior typically will add a prefix such as "little" to his moniker. The primary activities of the Imperial Beach Dukes are vandalism, auto thefts, burglaries, robberies, assaults and homicides.
Gang members commonly work as a crew in their money-making activities, Speyrer testified. Sometimes the crews include gang members from different gangs. Among other ...