United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
STANLEY A. BOONE, Magistrate Judge.
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 Fresno, following his conviction by jury trial on January 12, 2009, of two counts of home invasion robbery (Cal. Penal Code §§ 211/213(a)(1)(A)). (CT 500-503.) It was also found true that the principal discharged a firearm during the commission of those counts, causing death (Cal. Penal Code § 12022.53(d), (e)(1)). (CT 500-503.) In a bifurcated bench trial, the trial court convicted Petitioner of participating in a criminal street gang (Cal. Penal Code § 186.22(a)), and determined that he committed the robbery for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)). (CT 543.) Petitioner was sentenced to 156 years to life in prison. (CT 555-600.)
On November 10, 2010, the California Court of Appeal for the Fifth District affirmed the judgment but remanded the case to the trial court to correct a sentencing error.
On December 6, 2010, Petitioner filed a petition for review in the California Supreme Court. On February 16, 2011, the California Supreme Court granted review and transferred the case back to the Court of Appeal to specifically consider a sentencing issue.
On April 15, 2011, the Court of Appeal again affirmed the convictions but modified Petitioner's sentence.
Petitioner filed a federal petition for writ of habeas corpus in this Court on May 14, 2012. On October 8, 2012, Respondent filed a motion to dismiss the petition for failure to exhaust state court remedies. The undersigned issued a Findings and Recommendation on February 7, 2013, which recommended Petitioner be granted leave to file an amended petition; in the event Petitioner did not file an amended petition, the undersigned recommended that Respondent's motion be granted. On June 7, 2013, Petitioner lodged an amended petition. On June 20, 2013, the District Court adopted the Findings and Recommendation and directed the Clerk of Court to file the lodged amended petition. On September 18, 2013, Respondent filed an answer to the amended petition. Petitioner did not file a traverse.
STATEMENT OF FACTS
On March 28, 2008, at about 9:00 or 10:00 p.m., defendant (nicknamed "Mellow") and Ortega (nicknamed "Little Demon") picked up 21-year-old Benita (nicknamed "Cute") at her boyfriend's apartment. Ortega was driving a stolen Mazda Tribute sport utility vehicle (the SUV), the vehicle Benita had always seen him drive. He was wearing a red shirt, and both he and defendant were wearing red bandanas around their necks. They went to a house where they joined several other people, including Verdugo (nicknamed "Little Silent"), whom Benita had never met. Everyone at the party had been smoking methamphetamine and was "high" or "tweaking." At some point, Ortega pulled his red bandana over his face and took pictures of himself and defendant with a cell phone. When the methamphetamine started to run low, Ortega said they should go get more, and defendant agreed.
During the party, Benita was sending text messages to 27-year-old Regina. Ortega asked Benita if he could borrow her cell phone. Benita let him use the phone and when he returned it to her, she could see he had accessed her contacts list. He asked her, "Who is that girl Regina in your phone?" Benita said she was a friend. Ortega asked Benita if she wanted a ride to Regina's home. Benita said she wanted a ride to her own home, but Ortega insisted on taking her to Regina's home. Ortega asked her if Regina still sold drugs and Benita replied that she did. Ortega said, "All right[, ] I'm going to take you to Regina's."
At about 1:45 a.m., Ortega got in the SUV. Benita got in the passenger seat and defendant and Verdugo got in the back seat. Ortega's rifle was between the seats by his right leg; Benita had always seen him with it. He frequently played with it and she had seen him shooting chickens with it in the mountains. As they drove to Regina's apartment, Ortega passed the rifle to the back seat. Ortega parked the SUV about half a block from Regina's apartment, on a side street perpendicular to the alley that ran behind the apartments. Everyone got out of the SUV and Ortega told Benita to go inside. Benita thought they were just going to drop her off, but they said they were going to another house nearby. Ortega told Benita to contact them when she was ready to leave Regina's.
Benita walked down the alley and knocked on Regina's back door because Regina was usually in the back bedroom on the back side of the apartment. No one answered, so Benita went to the front door and rang the doorbell. Again no one answered, so she left and returned to the SUV. The three men were still standing next to the SUV talking. Ortega asked Benita why she had returned. When she said no one answered the door, Ortega told her to go back to Regina's apartment. As she walked back, she called Regina and asked her to let her in. It was not unusual for Benita to show up at Regina's apartment late at night. When Benita knocked on the front door, Gabriel, Regina's ex-boyfriend, answered the door.
Benita went into Regina's bedroom and gave Regina a hug. While they sat and talked with Gabriel, Benita and Regina smoked some methamphetamine. After a short time, Benita went into the kitchen to eat something. Benita finished eating and returned to the bedroom to talk with Regina. Benita sent a text message to Ortega to come pick her up. He responded that they wanted to buy some drugs from Regina, and Benita should let them in when they got there. Benita did not mention Ortega or defendant to Regina.
Ortega repeatedly sent Benita text messages, asking her which apartment was Regina's. According to cell phone records, Ortega and Benita exchanged 42 text messages in the hour between 2:20 a.m. and 3:20 a.m. Benita sent Ortega Regina's address.
While Benita was still in the living room, and Regina and Gabriel were in the front bedroom, Benita heard the back door open. She saw Ortega and defendant walk in the back door, which was unlocked. Benita went to the door and asked Ortega what he was doing because they just walked in. Ortega and defendant were wearing sweaters and they stood right next to each other with their hands behind their backs. Benita did not see a gun. Ortega put his hand on Benita's face and told her to shut up, and he guided her toward the door. Again, she asked him what he was doing and he told her to shut up. He said to her in a harsh whisper, "Shut up, Benita. I'm trying to rob this bitch." But Benita protested. Ortega told her "not to trip." He promised not to harm Regina. He said that "his word [was] with Bond, " and he "put that on the block he wasn't going to hurt Regina." This meant that he was promising on his street and on the Bond Street Bulldog gang members with whom he claimed to associate. He repeatedly told Benita to go to the car, but she refused. She begged them not to do anything. Ortega was getting mad and he told her to "get the fuck in the car." Defendant pushed her out the door and promised not to let Ortega harm Regina. Benita was afraid. She left the apartment and walked to the alley. She was surprised to see that the SUV was now parked in the alley behind Regina's garage. The SUV was running and Verdugo was in the driver's seat. Benita got into the passenger's seat.
According to Gabriel, when Benita was in the living room looking at her cell phone, he and Regina heard a knock on the back screen door. Then Ortega and defendant barged into the room. Ortega was wearing a red beanie on his head and a red bandana covering his face. He was holding a rifle. Defendant was wearing a dark jacket with a hood over his head. Ortega immediately shot Regina and she fell to the floor. Defendant hit Gabriel on the side of his head with a fist. Then defendant yelled at Regina, "Where are your keys, bitch?" Defendant yelled at Gabriel, "Give me your shit." Gabriel gave defendant his house keys and said, "I don't have anything else." Defendant left Regina's purse on the bed and ran out of the room.
Ortega kicked Regina and asked her, "Where is the money, bitch?" While he was kicking her, he kept the rifle pointed at Gabriel, who was sitting on the bed. Gabriel was afraid and he regretted not being able to protect Regina. Ortega told Gabriel to lie face-down on the bed, but Gabriel refused to comply for fear that Ortega would shoot him in the back of his head. Gabriel held his hands up and said, "I don't have anything to do with this. I don't know what's going on." Ortega said, "I heard she's got a gun, too. Do you know where the gun's at?" Gabriel said, "I never knew about her having no gun." When Ortega again asked where the money was, Gabriel offered to look through Regina's purse for him. Ortega signaled for him to do it, so Gabriel grabbed the purse and dumped it on the bed. He found a gold bracelet, but no money.
Ortega said, "I'm going to kill this bitch." He told Gabriel he was going to kill him too because he thought Gabriel was going to try something. Ortega said he was getting an "itchy trigger finger" and he was "ready to die by the Fresno PD." Afraid for his life, Gabriel told Ortega, "My cousin is Donkey, " referring to a cousin who was well-known in prison. Gabriel hoped Ortega would realize there would be retribution if he hurt him. Gabriel repeated that he would not do anything and that he did not know what was going on. Ortega told him to go sit in the hallway with his legs crossed and his hands on his head. He said, "I ain't going to kill you[;] it's this bitch." Gabriel asked Ortega why he was going to kill Regina, and he answered, "She burned my homeboy. Sold him 50 dollars worth of cut." This meant the methamphetamine appeared to be real, but was not.
Gabriel heard Ortega shoot the rifle a few more times, then Ortega said, "I'm gone, " and he ran past Gabriel. Gabriel thought the rifle sounded like a.22-caliber rifle. Gabriel waited about 10 seconds, then got up and went to Regina. He told her, "It's okay. Get up. They're gone." He picked her up and sat her on the bed, but she fell back on her back, unresponsive. He said, "They're gone. They're gone." She gasped for air and her eyes rolled back in her head. When Gabriel saw blood on his hand, he lifted Regina's shirt and saw a bullet wound near her pelvis. Only then did he realize she had been shot. He ran around the apartment looking for a telephone, then ran outside and told a neighbor to call 911.
Ortega returned to the SUV in the alley carrying his rifle and Regina's purse. Defendant backed Regina's red Geo Prizm out of her garage, and both cars returned to the house where the party was held.
Chica, a young woman at the party, came out and asked about Regina. Chica recognized Regina's car and asked Benita, "Is that Regina's car over there? [¶]... [¶] Is Regina in there? Tell her to get down and say hi." Defendant told Benita not to say anything. Ortega told someone, "Take that bitch inside and tell her to shut up."
Chica saw Ortega come back into the house. Then she saw some girls looking through a purse that she believed was Regina's.
Benita stayed in the car, and after a few minutes, she, Ortega, and Verdugo left. Ortega dropped Benita off at her apartment.
Officers responded to Regina's apartment at 3:42 a.m., two minutes after being dispatched. The officers found Regina lying on the bed with her legs hanging down. She was gasping for air and her eyes were open, but her pupils were totally dilated and she was not blinking. Her eyes were becoming dry. The officers observed a small bullet wound in her right pelvis from ...