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 Dean D. Pregerson, 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 November 19, 2013, bearing a signature date of November 11, 2013, and accompanied by a supporting memorandum ("Pet. Mem."). Also on November 19, 2013, Petitioner filed "Petitioner's Appeal from State Courts on Habeas Corpus Pursuant to 28 U.S.C. §2254" ("Petitioner's Appeal"). Respondent filed an Answer on February 4, 2014, asserting that the Petition is untimely and partially unexhausted. Petitioner filed a Traverse on March 10, 2014.
A jury found Petitioner and his co-defendant Mike Taituave guilty of: (1) one count of conspiracy to commit murder in violation of California Penal Code section 182(a)(1); (2) five counts of attempted murder in violation of California Penal Code sections 187(a) and 664; and (3) five counts of assault with a firearm in violation of California Penal Code section 245(a)(2) (Respondent's Lodgment 2; see People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012)). The jury found true the allegations that Petitioner committed the offenses for the benefit of a criminal street gang within the meaning of California Penal Code section 186(b)(1)(C) (Respondent's Lodgment 2). The jury also found true various firearm enhancements alleged against Petitioner (Respondent's Lodgment 2). Petitioner received a sentence of 200 years to life (Respondent's Lodgments 1, 3).
The Court of Appeal modified the judgment with respect to Petitioner's sentence but otherwise affirmed (Respondent's Lodgment 4; see People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012)). The California Supreme Court denied Petitioner's petition for review on July 18, 2012 (Respondent's Lodgment 7).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Taituave, 2012 WL 1681089 (Cal.App. May 15, 2012). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
Sometime around 2004 Sheila Ho-Ching became a member of the West Side Piru gang that was affiliated with the Bloods. Beginning in October 2008, Sheila started spending time with her cousin Faasooso Tautolo who was a member of the Sons of Samoa (S.O.S.), a Crips street gang. Faasooso's father Eni Tautolo was the head of the S.O.S. Sheila lived with her father Hoching Ho-Ching, Jr. (Joe) and her mother Maria Ho-Ching. Other West Side Piru members were known to spend time at the house. Beginning in November 2008, the S.O.S. gang vandalized the Ho-Ching residence. Car windows were broken and a brick was thrown through the front window. Gang-related graffiti claiming S.O.S. territory and identifying Sheila and Faasooso by their street names was written on the house and street including the words "Peanut Killer" and "F P-dime."
On February 16, 2009, a four-door gold Kia drove slowly by the Ho-Ching residence a number of times. Sheila recognized Filipo and another individual named Ross Ian Samana as two of the occupants of the vehicle the first two times it went by the house. Filipo flashed gang signs for S.O.S., called Maria Ho-Ching "a B word" and yelled "F Peanuts" and "I will be back." The third time the car drove by the house only appellant Filipo was in the car. Joe recognized the gang signs that Filipo flashed as being from the S.O.S. gang. He called his son Daniel Ho-Ching who lived nearby, to come over to see if he knew who the people were that were driving by his home.
Daniel, driving a blue GMC Yukon arrived within minutes and his parents and sister told him about the vehicle circling their home. He drove around the neighborhood a few times but did not see it. He returned to his parents' house moments before a car pulled up outside. His parents and sister said, "That's him right there, that's the car right there." Daniel signaled to him indicating he wanted to talk to him. Filipo threw up the S sign, signifying S.O.S. and waved to Daniel to follow him.
Daniel proceeded to follow Filipo as he drove down the street. Filipo sped up at times and then slowed down as they drove through the neighborhood. At times Daniel followed bumper to bumper and at other times he was close to a hundred yards behind. Daniel called 9-1-1 and gave a description of the car and the license to the dispatcher. On one occasion when they were traveling bumper to bumper Daniel could see that Filipo was talking on his cell phone and overheard him say "Let's blast on these niggers, cuz." Daniel panicked a little and looked around to see if anyone was behind him.
Meanwhile, Maria called Daniel a number of times and when he did not answer the cell phone she became worried. Joe, Maria, Sheila and Faasooso all got in a four-door white Montego car and went to look for Daniel. Joe was driving with Maria in the front passenger seat and Sheila and Faasooso in the back seat. Joe drove around the neighborhood streets as Maria continued to call Daniel's cell phone.
As Joe was driving around looking for Daniel he spotted the Kia driven by Filipo and turned to follow it. When he turned the corner he saw Taituave who was standing between two cars on the left side of the street raise his hands up. Joe told his wife "My God, we are going to get shot." Joe heard the shots and one bullet hit his arm and another hit his chest. He told his wife "I got hit, I got shot." Maria heard several gunshots and one bullet hit the left side of her stomach. Sheila saw Taituave step out from between the cars on the sidewalk. He was wearing a black hoodie. She saw the flash from the muzzle of the gun as he started shooting. Joe told Sheila and Faasooso to get down on the floor and he continued driving until he got back to his home.
Daniel had to slow down because a truck was between him and Filipo and he was now about a block behind Filipo. When he got around the truck he saw Filipo turn. He also saw his parents' car turn down the same street behind Filipo. He sped up because he feared what was going to happen. As he turned onto the street to follow Filipo and his parents he saw appellant Taituave wearing dark clothing "step out from behind the shadows" and fire at least seven or eight shots at his parents' vehicle. Taituave then turned and fired three or four shots at Daniel. Daniel was not hit but two bullets struck his vehicle. He saw a number of people running towards a PT Cruiser before he reversed his vehicle and went back to his parents' house.
Ashley Tofi testified that on the evening of February 16, she and her friend Alicia Tafua went to the store with Taituave and then to Filipo's house in Alicia's PT Cruiser. Alicia was driving. Taituave received a telephone call and Ashley overheard him say "Who's following you? All right. I'll be right there. I am almost there." Alicia pulled the car over to the side of the road when they reached Filipo's house and Taituave got out. Ashley saw Filipo's car drive by followed by a light colored four-door car, and then a third vehicle that looked like a dark colored Tahoe. Ashley remained in the car with Alicia and heard gunshots. As Taituave got back into the car he said "Oh, shit, I dropped my clip, " and picked it up. Ashley told the investigating officers that when Taituave said "clip" she knew he was referring to a gun. Alicia, Ashley, and Taituave then drove to a bar in Orange County where they met up with Filipo.
Later that night, Officer Robert Guerrero, of the Long Beach Police Department,  investigated the crime scene outside Filipo's residence. He found a total of 10 nine-millimeter ...