United States District Court, C.D. California, Western Division
MEMORANDUM DECISION AND ORDER
PAUL L. ABRAMS, Magistrate Judge
SUMMARY OF PROCEEDINGS
On May 17, 2011, a Los Angeles County Superior Court jury convicted petitioner of second degree robbery (Cal. Penal Code § 211), and second degree commercial burglary (Cal. Penal Code § 459). (Reporter's Transcript ("RT") 154, 182-85; Clerk's Transcript ("CT") 122-23, 127-28, 162-63). Petitioner admitted that he served a prior prison term within the meaning of California Penal Code § 667.5(b) in connection with a 2006 conviction. Petitioner also admitted that he suffered a prior felony conviction in 2001 for assault with a firearm (California Penal Code § Three Strikes Law, and sentenced petitioner to ten years in state prison. (RT 1, 5-8, 189-91, 196-99; CT 30-31, 158-63).
Petitioner filed a direct appeal. On June 25, 2012, the California Court of Appeal affirmed the conviction in an unpublished decision. (Lodgment Nos. 3, 4). Petitioner did not file a petition for review in the California Supreme Court.
Petitioner sought habeas relief in the California courts. His first petition, filed in the Los Angeles County Superior Court, was denied on April 17, 2013. (Lodgment Nos. 5, 6). His next petition, filed in the California Court of Appeal, was denied on May 7, 2013. (Lodgment Nos. 7, 8). His third petition, filed in the California Supreme Court, was denied on August 14, 2013. (Lodgment Nos. 9, 10).
Petitioner then filed a second petition in the California Court of Appeal, which was denied on August 5, 2013. (Lodgment Nos. 11, 12). He subsequently filed a second petition in the California Supreme Court, which was denied on November 20, 2013, with a citation to In re Waltreus , 62 Cal.2d 218, 225 (1965).
On February 13, 2014, petitioner filed his Petition in this Court, and consented to have the undersigned Magistrate Judge conduct all further proceedings in this matter. On April 4, 2014, respondent filed an Answer to the Petition, and on April 7, 2014, also consented to have the undersigned Magistrate Judge conduct all further proceedings. On April 17, 2014, petitioner filed a Reply to the Answer.
This matter has been taken under submission, and is ready for decision.
STATEMENT OF FACTS
The Court adopts the following factual summary set forth in the California Court of Appeal's Opinion affirming petitioner's conviction.
[O]n December 31, 2010, Justin Rima, a loss prevention agent at a Cerritos Best Buy store, heard the alarm go off in the appliance department at approximately 5:30 p.m. It was a half hour before closing. Rima ran to the emergency exit and found the door ajar. He looked outside and saw a green or black car parked parallel to the door. Rima identified [petitioner] in court as the person he saw loading laptops into the backseat of the car. Rima could tell by the boxes that one was a Dell and one was a Toshiba. Rima said, "What the fuck are you doing?" The driver of the car pointed a gun at Rima and said, "Don't fucking worry about it." Rima was shaken up, and he backed away. [Petitioner] jumped into the backseat of the car, and it left. As the car drove away, Rima heard cheering noises from the two men. Rima called the sheriff. Upon viewing the store's security footage, Rima identified [petitioner] entering the store and inside the store. The store manager, Tony Bauguess, ascertained that one Dell computer was missing.
Shortly before the robbery, at approximately 5:18 p.m., [petitioner] was stopped driving a dark green Lexus without a rear license plate. He had a male passenger. [Petitioner] gave the officer his driver's license and retrieved the license plate from the rear floorboard. The traffic stop occurred about one block from the Best Buy store.
Detective Randall Algra responded to a location on East Appleton Street in Long Beach on January 4, 2011. The location was near [petitioner's] residence, and Detective Algra saw a dark green Lexus parked nearby. The Lexus had the same license number as the car [petitioner] was driving on December 31, 2010. Detective Algra searched the Lexus and found a replica of a black semiautomatic handgun on the right rear passenger floorboard.
The parties stipulated that [petitioner] was detained by detectives on January 4, 2011. Upon searching [petitioner], the detectives found a cell phone, which they handed over to Detective Aaron King. There were photographs on the cell phone depicting a computer and a computer box for exactly the type of computer taken from Best Buy.
(Lodgment No. 4 at 2-3).