The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
On February 15, 2012, Franklin Figueroa ("Petitioner"), a California state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction. (Doc. No. 1.). On May 22, 2012, Matthew Cate ("Respondent") filed a response in opposition. (Doc. No. 9.) Petitioner did not file a traverse. On October 19, 2012, the magistrate judge issued a report and recommendation to deny the petition. (Doc. No. 11.) Petitioner has not filed an objection to the magistrate judge's report to date. For the following reasons, the Court denies the petition for writ of habeas corpus.
Petitioner seeks relief from a jury conviction of second degree murder and his sentence of 25 years to life in prison. (Doc. No. 1.) The following facts come from the California Court of Appeal opinion and are presumed correct pursuant to 28 U.S.C. § 2254(e)(1).
In the early morning hours of October 2, 2004, Antonio Rosales, Jr., was killed during a fight that occurred at a driveway across the street from his residence on Milbrae Street in San Diego. He died from blunt force injuries to his head.
Victim Rosales was a member of the Logan gang, and the assailants were members of the Van Dyke Krew (VDK) gang. There were four VDK gang members (including [Petitioner]) involved in the fight. Two of them, Genri Hernandez and Abel Jimenez, pleaded guilty to voluntary manslaughter and testified on behalf of the prosecution. They identified [Petitioner] and Rogelio Valadez as among the persons who assaulted Rosales. Julio Martinez, who associated with VDK gang members and who witnessed the fight from inside a car, testified on behalf of the prosecution upon a grant of immunity. Rosales's friend, Ricardo Anaya, who participated in the fight, also testified for the prosecution.
The prosecution charged [Petitioner] with first degree murder, with enhancements for personal use of a deadly weapon and committing a crime to benefit a gang. During trial, the court granted the prosecution's motion to dismiss the personal weapon use allegation. The jury acquitted [Petitioner] of first degree murder, and found him guilty of second degree murder. It also found true the gang enhancement allegation.
VDK members Hernandez and Jimenez, VDK associate Martinez, and Rosales's friend (Anaya) described the events surrounding the fight. FN1. In the hours before the fight, Hernandez, Jimenez, and Martinez, plus [Petitioner] and Valadez, were together drinking alcohol and smoking marijuana. Another man who had joined the group (Hugo Alvarez) told them that he knew where to get some marijuana, and invited them to go with him. The men left in two vehicles and drove to Milbrae Street. Hernandez drove his gray Oldsmobile, with Valadez and Jimenez as passengers. [Petitioner] drove Alvarez's white Ford Focus, with Alvarez and Martinez as passengers. [Petitioner] parked the white car by a house, and Hernandez parked his car on the next block. Alvarez got out of the white car and went to a house to get marijuana. While the men were waiting for Alvarez's return, Valadez got out of the gray car and started "tagging" graffiti. Valadez wrote the words "VDK First" on a fire hydrant, whichwas a reference to the VDK gang and Valadez's moniker "First."
FN1. Hernandez's testimony, provided during a conditional examination, was read to the jury. Hernandez was examined prior to trial because it was expected that he would be deported by the time of trial.
Meanwhile, Anaya and Rosales arrived at Milbrae Street in Anaya's car. When they arrived, Anaya saw two or three men on the other side of the street standing behind a white car. FN2. While Anaya was parking the car in front of Rosales's home, Rosales got out of the car and walked towards where the men were standing.
FN2. By the time of trial Anaya did not recall the color of the car that the men were standing behind. However, when interviewed by the police a couple of hours after the fight he described the vehicle as a white car.
A fight ensued, but none of the witnesses saw exactly how it started. Anaya testified that Rosales did not approach the men in an aggressive fashion, and Anaya thought Rosales knew them. Martinez (who stayed in the white car during the fight) testified that he heard people screaming and cussing, saying " 'what's up mother-fucker?' " as if they wanted to fight, and he then saw [Petitioner] "running" out of the car. Martinez testified he could not see much of the fight because he was hit in the eye by someone through the car window and it was dark. Martinez did not know who punched him, but he thought it was "gang-related." Martinez saw people with baseball bats near the white car, and thought he saw Jimenez with a bat.
At the start of the fight, Anaya noticed that Rosales had a man down on the ground. Anaya started fighting with one of the men by the white car, and chased one of the men when he started running down the street. However, when more men from another car joined the fight and started hitting Anaya, Anaya jumped a fence into a yard. As Anaya ran away, Rosales was still standing and he was not bleeding from the head. Anaya saw a man going towards Rosales with a bat.
Jimenez testified that Valadez (who had been "tagging" adjacent to the gray car) knocked on the window of the gray car, said "somebody was fighting down the street," and then ran towards the fight. Jimenez and Hernandez each grabbed a bat from the trunk of Hernandez's car and also ran towards the fight. Both Jimenez and Hernandez testified that they went to Milbrae Street to get marijuana, not to get into a fight, but they stated that when a gang member is involved in a fight, other gang members are expected to help, and if they do not they would probably be beaten. Jimenez testified that as they ran towards the area of the fight, [Petitioner] was running towards them and Rosales was running away. When [Petitioner] saw his friends coming, he "turned around." [Petitioner], Jimenez, and Valadez then chased Rosales. FN3. Jimenez hit Rosales in the back with the bat and Rosales fell. Jimenez was about to hit Rosales again, but [Petitioner] took the bat from him. Valadez was kicking Rosales in his head or upper body, and [Petitioner] was hitting him with the bat on his upper body. FN4. At this point Jimenez went into the white car to look for the car keys so they could get away. He was surprised to see Martinez (who appeared to be crying) in the car because Martinez should have been outside helping with the fight.
FN3. Jimenez testified he did not know Rosales, and it appears Hernandez did not know him either.
FN4. When the prosecutor asked Jimenez if [Petitioner] was hitting Rosales's head with the bat, Jimenez answered, "Most likely." Hernandez testified that as he ran towards the fight, he saw Valadez and [Petitioner] fighting with Rosales. [Petitioner] was punching Rosales with his fists while Rosales was on the ground. Hernandez chased another man (apparently Anaya) until Anaya jumped a fence and went into a backyard. At this point, Hernandez's view of the fight was obscured by the white car. However, he could see that Valadez and [Petitioner] were still fighting with Rosales. Valadez was kicking and punching Rosales, but Hernandez could not see what [Petitioner] was doing.
Anaya returned to the street and threw some beer bottles that he found in the yard where he had fled. The assailants started running away and left the scene in the two cars. When Anaya went to Rosales, he was laying on the ground bleeding from his head. Anaya told a neighbor to call 911. [Petitioner] left the scene in the white car, accompanied by Martinez. While in the car with defendant, Martinez stated, " 'Man, I didn't even help you.' "Martinez explained that he said this because [Petitioner] was "getting jumped" and he was supposed to help him because he was "hanging around" with him. [Petitioner], who appeared angry, told Martinez to calm down and "shut up."
The men drove the two cars to an alley. Hernandez and Martinez testified that [Petitioner] and Jimenez wiped the white car with a rag to remove fingerprints. Jimenez then drove the white car to his home so he could return the car to Alvarez. FN5. Before he could contact Alvarez, the police arrived and seized the white car. The authorities found [Petitioner's] fingerprints on the white car.
FN5. Alvarez (who was Jimenez's neighbor) had been left at the scene of the fight.
After the fight, Hernandez and Jimenez noticed blood on Valadez's shoes. Hernandez testified he did not remember seeing any blood on [Petitioner's] clothes. Hernandez and Jimenez recounted various statements made by [Petitioner] after they left the scene of the fight. [Petitioner] told them he hit the victim "hard" and stated the victim was bleeding "bad" from his head. [Petitioner] said they should stay quiet and not say anything about the fight; if they talked it would be "snitching"; and there "could be trouble" (like a beating or stabbing) for anyone who talked about the fight. About one or two weeks after the fight, [Petitioner] acknowledged to Hernandez that he grabbed the bat from Jimenez. [Petitioner] also stated that detectives had already talked to him and asked him what had happened; if he found out "who was telling on him" he was going to "do something about it," like beat or stab that person.
A gang expert testified regarding the primary activities of the VDK gang, including committing assaults with deadly weapons. The expert stated that Rosales's homicide occurred in territory claimed by the Shelltown gang. The expert opined that the killing of Rosales benefitted the VDK gang because it enhanced the gang's status and instilled fear and intimidation in the community so that people would not talk to the police.
The jury convicted [Petitioner] of second degree murder with a true finding that he committed the crime to benefit a gang. He was sentenced to 15 years to life for the murder, plus a determinate term of 10 ...