United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 7, 2013. Respondent filed an Answer and an accompanying Memorandum of Points and Authorities on November 6, 2013. Petitioner filed a "Travers[e]/Motion for Counsel" on December 3, 2013.
Late at night on January 18, 2008, or early in the morning on January 19, 2008, motorists' 911 calls reported that two men were lying on the ground near Delaware Street in Huntington Beach after having been assaulted (Reporter's Transcript ("R.T.") 80-107; Clerk's Transcript ("C.T.") 1194-1200). One of these men, Abraham Sanchez, had been fatally shot (R.T. 191). The other man, Cruz Aguirre, had been stabbed multiple times in the back and side, but survived (R.T. 117, 123, 202). Aguirre later testified that he and Sanchez had been unarmed and riding on Sanchez's bicycle when a SUV stopped in front of them (R.T. 110-15). According to Aguirre, a group of people had exited the SUV and had attacked Aguirre and Sanchez (R.T. 115).
Immediately after the 911 calls, the police obtained a witness's description of the SUV as a dark colored Suburban (R.T. 168-69, 172-73). Soon thereafter, the police stopped a Suburban carrying two males in their late teens or early twenties (R.T. 173-77). Police saw blood in multiple places within the Suburban (R.T. 178-79). Several of the 15 latent fingerprints later collected from the Suburban matched the fingerprints of Petitioner (R.T. 534-41).
A search of Petitioner's bedroom located a bloodstained jersey (R.T. 738-44). Testing of the blood on this jersey revealed a "one in one trillion" DNA match for Petitioner and a "one in one trillion" DNA match for victim Cruz Aguirre (R.T. 779-84).
Three participants in the assault on Sanchez and Aguirre testified at trial. The first, Miguel Camacho, testified:
Camacho and other members of the Southside Huntington Beach Gang had planned to "go f____ up" members of the rival Amberleaf Gang because of Amberleaf's tagging activities (R.T. 283-318). Gathered in the Dairyview Circle area that night were "around 20" Southside Huntington Beach Gang members, including Petitioner (R.T. 306-13). Petitioner is known as "Lil Sniper" (R.T. 312-13). As this group talked among themselves, Ignacio Ruiz (known as "Lil Dreamer"), said he had a gun and he was going to be shooting (R.T. 314-16). Camacho drove Petitioner and four other gang members in the Suburban, and another car with other gang members drove along with the Suburban (R.T. 316-21). The passengers in the Suburban accosted the two victims on the bicycle by asking them where the victims "were from" (R.T. 322-23). The passengers in the Suburban, including Petitioner, then exited the Suburban and jumped one of the victims, punching and kicking him (R.T. 327-31). Camacho heard a gunshot at some point (R.T. 328-31). Petitioner was the last gang member to stop beating on one of the victims and the last gang member to get back into the Suburban (R.T. 332-33). Camacho saw Petitioner putting a gun in his waistband (R.T. 336). Camacho drove back to Dairyview, where he dropped off Petitioner and all of the other passengers in the Suburban except one (R.T. 339). Soon thereafter, police stopped the Suburban and arrested Camacho and the remaining passenger (R.T. 339-46).
Jesus Varela Ortega, the remaining passenger in the Suburban who had been arrested with Camacho, testified:
Ortega had been at Dairyview with Southside Huntington Beach Gang members, including Petitioner (R.T. 559-63). These Southside Gang members had planned to fight Amberleaf Gang members (R.T. 567). Ruiz, who had a gun during the planning, said that the gun was "real loud, " and if someone used it, the user would have to "get out of there quick" (R.T. 567-69). While riding in the Suburban, Ortega saw the two victims throwing gang signs (R.T. 572). Ortega and others then jumped the two victims, punching and kicking them (R.T. 573-80). When Ortega heard a gunshot, he decided to leave the fight and run back to the Suburban (R.T. 580-82). Petitioner and another Southside Gang member were leaning over one of the bodies (R.T. 584). Petitioner was late getting back to the Suburban (R.T. 585-86). When Petitioner returned to the Suburban, Petitioner said "I stabbed that mother f...." (R.T. 589). Ruiz gave Petitioner the gun (R.T. 591). The Suburban returned to Dairyview to drop off some people there, but Ortega and Camacho remained in the Suburban (R.T. 593).
David Candelario, the third admitted participant in the murder and attempted murder, testified:
The Southside Gang members hanging out at Dairyview, including Petitioner, Ruiz and Pacheco, talked about doing a "mission" against Amberleaf in retaliation for Amberleaf's previous spray painting (R.T. 789-800). Candelario saw Ruiz get close to one of the victims, heard the gunshot, and saw Ruiz running back with the gun close to his stomach, while eight or nine other Southsiders (including Petitioner) were kicking, stomping and punching the other victim (R.T. 807-10).
Neither Petitioner nor co-defendants Ignacio Ruiz and Hector Genaro Pacheco testified at trial. Ruiz previously had given a statement to police in which he admitted his presence at the scene of the events, however. Ruiz's statement to police, redacted to remove any direct references to Petitioner or Pacheco, was introduced into evidence (R.T. 1013-14; see C.T. 1226-59). The redacted statement referenced "about ten" other participants, and did not name any of the participants other than Ruiz (id.). The trial court instructed the jury that Ruiz's redacted statement could not be used against the other co-defendants (R.T. 1014).
A statement given by Ortega to police was also admitted into evidence (R.T. 763-64, 884-90, 1009-12, 1015; see C.T. 1202-23). This statement recounted the same events to which Ortega testified at trial (id.).
Petitioner presented no affirmative evidence at trial (R.T. 1191). Petitioner's counsel argued that Camacho, Ortega and Candelario were lying about Petitioner's alleged participation in the murder and attempted murder (R.T. 1392-1425). Petitioner's counsel did not argue that the participants in the murder and attempted murder had been provoked (id.).
The jury found Petitioner, Ruiz and Pacheco guilty of first degree murder, attempted murder with premeditation and deliberation, and street terrorism (R.T. 1475-77). The jury also found to be true certain special circumstances and enhancement allegations. Id . The California Court of Appeal affirmed Petitioner's conviction in a reasoned decision. See People v. Lugo, 2012 WL 268536 (Cal.App. Jan. ...