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Votino v. Lizarraga

United States District Court, E.D. California

June 6, 2014

LOUIS VOTINO, Petitioner,
v.
JOE A. LIZARRAGA, Acting Warden, Mule Creek State Prison, [1] Respondent.

MEMORANDUM DECISION

JAMES K. SINGLETON, Jr., Senior District Judge

Louis Votino, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Votino is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Mule Creek State Prison in Ione, California. Respondent has answered, and Votino has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

The California Court of Appeal recounted the underlying facts and procedure of this case as follows:

At 6:30 a.m. on November 7, 2004, James Brookes left his white pickup truck running as he ran back into his house to retrieve his wallet. Brookes had orange safety vests, like those used by Caltrans workers, and plastic gloves in his truck at the time. His neighbor's security video camera captured the theft of the truck. The videotape showed a van driving by the Brookeses' house moments before the theft and then returning and driving away in front of Brookes's truck, which was driven away at high speed. The van's front left fender was a different color from the rest of the van.
Three weeks before the theft, the van had been sold to a person with a name nearly identical to that of [Votino's] wife. In April 2005 a van with a front left fender a different color from the rest of the van was parked outside the home of [Votino's] mother-in-law.
On November 8, 2004, a man robbed a Shell gas station clerk at gunpoint, took about $200, and left in a white pickup truck driven by another person. The clerk was unable to identify either her assailant or the driver. She testified the robber was short and heavyset, wore a sweatshirt with a red hood and a baseball cap underneath, and had a red and white mask covering his face.
At about 8:30 a.m. on November 9, 2004, a chunky, short Mexican male wearing a dark sweater with a white stripe, an orange construction vest with "neon" stripes, a dark baseball hat, white tennis shoes, white gloves, and a red bandana covering his face pointed a gun at a Valero gas station clerk and demanded money. The man grabbed a cash drawer containing about $81 in cash, left the store, and climbed into the passenger side of a white pickup. The clerk was unable to positively identify either the robber or the driver.
Marcus Hopkins, an off-duty employee, happened to be at the Valero station during the robbery and was the only eyewitness to identify [Votino] as a participant in any of the charged offenses. His credibility was hotly contested. Hopkins could not see the robber's face because the robber was wearing a bandana and a hat. He followed him out of the store, saw him get into a white truck, and then got into his own truck and chased the robbers. As the driver of the white truck tried to get away, he saw a gun hanging out the passenger window and then heard two "pops." The chase ended when Hopkins hit a divider.
Hopkins testified he got a good look at the driver, whom he identified as [Votino]. A week after the robbery, he picked [Votino] out of one of two photo lineups. He further testified that he was positive [Votino] was the driver, and if the police reported he had identified [Votino] as the passenger, they were mistaken. The detective who showed Hopkins the photo lineups, however, testified that Hopkins identified [Votino] as the robber.
At roll call on November 9, 2004, Stockton police officers were informed that two male suspects using a white pickup and a firearm had robbed two gas stations. The officers also were shown photos from the Valero surveillance video. At about 5:40 p.m., while on patrol, two officers saw a truck they believed matched the vehicle description from the robberies and called for backup. A high-speed chase ensued. One of the passengers started shooting at the police officers. As the driver tried to negotiate a turn at 70 miles per hour, he lost control and collided with a telephone pole.
Three men ran from the truck, the officers shooting at them. Within minutes, an officer spotted [Votino] walking down the street approximately one block east of the site of the crash. He was wearing black sweatpants, a white T-shirt, and white tennis shoes. He was sweating profusely and appeared nervous. A gunshot residue test was conducted on [Votino], and several consistent particles of gunshot residue were found on both of his hands. Even though none of the officers involved in the chase was able to positively identify him, [Votino] was transported to the police department for interrogation. Codefendant Jose Balverde was located and transported to the hospital for treatment of a gunshot wound. A third suspect, Aaron Woods, was interviewed the following day at a hospital emergency room, where he went for treatment of a gunshot wound.
After spending the night at the police department, [Votino] was interrogated early the following day. He claimed he had been asleep at the time of the robbery, and he denied knowing codefendant Jose Balverde or riding in a white truck. He insisted he had driven a minivan to McKinley Park looking for mechanics to help him with another disabled car. He parked the van and began walking around in search of help. Not finding anyone, he returned to the van, only to discover someone had broken into it and it would not start. He left the park on foot to look for his friend Jerry, who lived in the neighborhood. Shortly after hearing gunshots, he was stopped by the police.
[Votino] claimed he was wearing only a T-shirt even though it was cold outside because he had not planned to be stranded in the park and thought he had a sweatshirt in the van. He denied that any of the clothing found in the area was his. The police officers could not find the van in the vicinity of McKinley Park. [Votino] suggested that the van had been stolen.
The prosecution argued that Balverde was the robber. Woods pled guilty to one count of assault with a firearm on a police officer and admitted to personally using a firearm within the meaning of [California] Penal Code section 12022.5, subdivision (a). The prosecution did not claim that he was involved in the gas station robberies. Balverde and [Votino] were tried jointly.
A jury convicted [Votino] of four counts of assault with a firearm on police officers (Pen. Code, § 245, subd. (d)(1)), one count of unlawful taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)), one count of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)), one count of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)), one count of second degree robbery of the Valero gas station (Pen. Code, § 211), and one count of assault with a firearm on the person of another (Pen. Code, § 245, subd. (a)(2)). Balverde also was found guilty of all counts. The court found [Votino's] prior voluntary manslaughter conviction to be true. He was sentenced to state prison for 22 years 4 months.

People v. Votino, No. C054522, 2009 WL 1900389, at *1-3 (Cal.Ct.App. July 1, 2009).

Through counsel, Votino directly appealed, arguing that: 1) the trial court erred in instructing the jury on the natural and probable consequences doctrine; 2) the evidence was insufficient to convict him as an aider and abettor under the natural and probable consequences theory of liability because the assaults were not reasonably foreseeable; 3) the court improperly restricted cross-examination of Hopkins; and 4) he was improperly convicted of both stealing and receiving the stolen truck. The Court of Appeal reversed Votino's conviction for receiving stolen property but otherwise affirmed in a reasoned, unpublished decision. Votino, 2009 WL 1900389, at *8.

Votino filed a counseled petition for review to the California Supreme Court, in which he argued that the court erred in instructing the jury on the natural and probable consequences doctrine and that his right to confrontation was violated when the court limited his cross-examination of Hopkins. The supreme court summarily denied review.

Votino filed a pro se petition for habeas relief with the superior court. Votino argued that the imposition of consecutive sentences for assault of the police officers with a deadly weapon and second-degree robbery was a violation of state law and the prohibition against double jeopardy and the court exceeded its jurisdiction in relying on an invalid prior offense to increase his sentence. The superior court denied relief in a brief, reasoned opinion.

Votino filed a second pro se petition for habeas relief with the superior court. This time, Votino argued that newly discovered evidence demonstrated that he was actually innocent of the robbery and that trial counsel was ineffective for failing to discover that evidence. Votino additionally requested an evidentiary hearing. The superior court denied Votino relief in a brief, reasoned opinion.

In his third pro se petition to the superior court for habeas relief, Votino raised the same claims he did in his unsuccessful second petition. Votino again requested an evidentiary hearing. The superior court summarily denied Votino relief.

Votino then filed a pro se petition for habeas relief with the Court of Appeal in which he again argued that newly discovered evidence established that he was innocent and that trial counsel was ineffective for failing to discover such evidence. Votino renewed his request for an evidentiary hearing. The Court of Appeal summarily denied relief.

Votino filed a pro se petition for habeas relief with the California Supreme Court, again arguing actual innocence and ineffective assistance of counsel and requesting an evidentiary hearing. The California Supreme Court summarily denied review.

Votino timely filed his Petition with this Court on July 7, 2010. After this Court granted Votino's motion to stay and abey proceedings pending exhaustion of his claims in state court, Votino filed an Amended Petition on March 26, 2012.

II. GROUNDS RAISED

In his Amended Petition before this Court, Votino argues that: 1) the trial court erred in instructing the jury on the natural and probable consequences doctrine; 2) the evidence was insufficient to convict him as an aider and abettor under the natural and probable consequences theory of liability because the assaults were not reasonably foreseeable; 3) the court improperly restricted cross-examination of Hopkins; 4) newly discovered evidence proves that he is actually innocent of the robbery; 5) counsel was ineffective for failing to discover the evidence demonstrating his innocence; 6) the imposition of consecutive sentences for assault with a deadly weapon and second-degree robbery violated state law and the prohibition against double jeopardy; and 7) the court exceeded its jurisdiction in relying on an invalid prior strike to enhance his sentence. Votino additionally requests discovery and an evidentiary hearing "to further develop and obtain evidence sufficient to prove he is actually innocent of robb[ery]."

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling Supreme Court authority or "if the state court confronts a set of ...


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