ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (ECF No. 1)
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Following a jury trial in the Tulare County Superior Court, Petitioner and two co-defendants were convicted of shooting at an inhabited dwelling, shooting from a motor vehicle at a person, receiving stolen property, and eight counts of assault with a firearm. It was also found true that the crimes were committed for the benefit of a criminal street gang.
Petitioner filed a timely notice of appeal. On April 6, 2012, the California Court of Appeal, Fifth Appellate District affirmed the judgment in a reasoned decision.
On May 2, 2012, Petitioner filed a petition for review in the
California Supreme Court. The
petition was summarily denied on June 27, 2012.
Petitioner filed the instant federal petition for writ of habeas corpus on September 24, 2012.
Respondent filed an answer to the petition on January 8, 2013. Petitioner did not file a traverse.
II. STATEMENT OF FACTS*fn2
Around 4:00 p.m. on June 23, 2008, the Valdovinos family was startled by six gunshots fired at their home located on North Smith Road. When the shots were fired, Raquel was in the kitchen cooking with her husband Jose and her son Jesus. Raquel's daughter, Maria was in the living room breastfeeding her baby; Maria and her four children were visiting. Maria's daughter was inside watching television and her sons were outside in the backyard. Maria's brothers, Max and Juan Carlos, also were in the backyard. Jesus's girlfriend, Salina E., was resting in the garage, which had been converted into living quarters for Jesus and her.
The first three or four shots were in close succession; after a pause, more shots were fired. One of the shots hit the garage door and another shot hit near the cooler inside the garage next to where Salina E. was standing. The bullets that penetrated the garage made the mirror on the wall wobble.
Immediately upon hearing the shots, Juan Carlos ran to the chainlink fence on the north side of the property and saw a red car heading east on Olive Avenue at a high rate of speed. When Maria heard the shots, she stood up and, while holding her baby, she opened the front door. There was smoke in the air just outside the front door. Maria gathered her children and the entire Valdovinos family went outside to the front of the house, where they shortly were met by police officers.
Maria had parked her minivan directly in front of the Valdovinos house. After the shots were fired, she discovered a bullet hole in the back of her minivan. Juan Carlos's Camaro, also parked in the front of the house, had a bullet hole in it. There was a bullet hole in the garage and gunshot marks on the house. Several other vehicles were parked in front of the house.
At about the same time, Tulare County Sheriff's Detective Jess Cox was conducting an interview at a nearby house on North Newman Road. After Cox finished the interview, he was walking back to his car when he heard six gunshots coming from a northwest direction. As he was getting into his car, Sheriff's Deputy Javier Guerrero pulled alongside Cox in a marked patrol vehicle. Cox told Guerrero about the gunshots; Guerrero told Cox he had just seen a vehicle, which he identified in his report as a red, four-door Honda Accord, leaving the area where shots had been fired.
Before meeting up with Cox, Guerrero had seen the red four-door Honda Accord traveling northbound on North Smith Street headed toward Olive Avenue. The vehicle caught his attention because it failed to stop at a stop; sign and was traveling in excess of 40 miles per hour. Inside the Accord were three Hispanic males, all with shaved heads. Guerrero observed the person in the back seat lean out the window and yell something toward the house on the corner of North Smith Road and Olive Avenue. Guerrero did not stop the vehicle because he was en route to meet Cox.
Cox advised dispatch of the firing of gunshots in the vicinity, while Guerrero broadcast a description of the Accord. The two officers drove toward North Smith Road and Olive Avenue, which was 15 to 20 seconds away. Guerero stopped to speak with the people gathered outside the house; Cox drove off to attempt to locate the Accord.
Shortly after 4:00 p.m. that same day, Sheriff's Deputy Carl Bostai saw a reddish brown colored vehicle matching the description broadcast by dispatch. There were three people in the car. Bostai made a U-turn and activated his siren in order to make a traffic stop. Initially, the Honda Accord failed to stop and Bostai had to engage in a high-speed chase.
When the Honda Accord approached a residence on Road 136, it slowed and the passengers looked around. The rear passenger, Noel, looked back toward the deputy. Marco was the front seat passenger and Ramirez was driving the Accord. Bostai saw Marco reach out the front passenger window and throw an object towards the residence on Road 136. By this time, other officers had arrived on the scene and a felony stop of the vehicle was made.
Bostai searched the area where he had seen Marco throw an object out the window. He found a .357 revolver in a pile of grass clippings. When he opened the cylinder, there were six dispensed casings and no live ammunition in the gun.
Bostai also placed a brown paper bag over the suspects' hands to preserve any gunshot residue. A subsequent test of each of the suspects' hands was negative for gunshot residue.
Sheriff's Detective Bobby Saldana documented a total of five bullet holes at the house on North Smith Road. He located one in the minivan, one in the Camaro, and a total of three in the garage door and stucco. There were no casings, indicating the weapon might be a revolver because revolvers do not leave casings after being fired.
Ramirez was interviewed by Sheriff's Detective Rodney Klassen the evening of June 23, 2008, after waiving his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Ramirez admitted being a Sureno gang member, but denied having a gun or knowing anything about the events surrounding the shooting. Ramirez was aware something was thrown out of the car window when the police were chasing him, but denied knowing what was thrown. Klassen also interviewed Marco after Marco waived his Miranda rights. Marco told Klassen one of his "homies" had been shot the week before by the people who lived in the house on North Smith Road. Marco acknowledged that the "Nortenos own the whole street" and you only go down the street to cause problems for the Nortenos. When asked if he had a gun, Marco responded, "I don't know."
The gun found on Road 136 was dusted for fingerprints, but none were recovered. The gun had been listed as stolen ...