United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction for second degree murder and other charges. Petitioner was sentenced to 72 years to life in state prison. Petitioner claims that his due process right to a fair trial was violated by the introduction of gang evidence at his trial. After careful review of the record, this court concludes that the petition should be denied.
II. Procedural History
On May 24, 2011, a jury convicted petitioner of second degree murder, attempted premeditated murder, and being a felon in possession of a gun. The jury also sustained allegations of personal use of a gun resulting in death or great bodily injury. The jury acquitted petitioner of witness intimidation. The trial court imposed an indeterminate term of 72 years to life on the shooting counts and a concurrent term for the gun possession.
Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal affirmed the conviction on July 18, 2012. (Respondent's Lodged Document ("LD") No. 8.)
Petitioner filed a petition for review in the California Supreme Court, which was denied without comment on September 26, 2012. (LD No. 9.)
Petitioner filed the instant petition on November 12, 2013. (ECF No. 1.)
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On a Saturday night in September 2010, defendant and a group of friends were at a bar. At last call, they decided to reconvene at the home of one of their number.
En route to the residence, defendant and two of the women from the group stopped at a neighborhood liquor store. Also at the liquor store were the murder victim, Oquitzin Bravo, the surviving shooting victim, Jorge Lopez, and a third friend, all of whom were best friends working together in construction; they originally were Mexican natives. They were en route home from a Folsom Boulevard club.
As the two shooting victims walked to the door (their third friend remaining behind in the car because he was quite drunk), they began conversing with the women, who invited them to the after-hours gathering. The two victims returned to their car, and followed the women's car to the home and parked. The gathering was in the backyard.
As the victims and their friend approached the gate to the yard, the woman who had invited them suggested that perhaps they all could go elsewhere; victim Lopez said it was up to the women. Defendant and his friend, David Goodier, FN1 came up to them. Victim Lopez had noticed them at the liquor store, and now realized they must have been there with the women at the same time in a different car.
FN1. Goodier, the only Caucasian present, was introduced as "White Boy."
Defendant and Goodier asked whether the group had any gang affiliation. Goodier may have said something to indicate having a gang affiliation. Victim Lopez told them that he and his friends were "pisas" (which he testified as meaning a native Mexican not affiliated with any gang), FN2 and asked if it was acceptable for them to join the gathering. At that point, everyone seemed welcoming to victim LopezFN3 and the question of gang affiliation did not come up again. Because of his drunken condition, the victims' friend simply sat down near the gate and played with a puppy. Four eyewitnesses described what happened thereafter.
FN2. This term was defined by defendant in his statement to the police as meaning an illegal immigrant. He admitted that he had first noticed them at the liquor store, and found their pisa mannerisms laughable.
FN3. However, defendant asserted in his police statement that he did not like being around people he did not really know.
Victim Lopez testified that he had been talking with a woman from whom he had bought marijuana. He heard a commotion arise; he looked over and saw defendant punching victim Bravo. There were two or three other people around them. Victim Lopez went to victim Bravo's aid. Goodier intercepted him with a punch. Victim Lopez did not recall his other friend being involved in either fight. Victim Lopez heard shots, and ran out the gate toward the front of the house. As victim Lopez reached for his phone to call 911, he saw defendant approach him. Behind him, two people were dragging victim Bravo out of the backyard. Defendant had a gun in his hand. Victim Lopez began to approach victim Bravo; defendant raised his arm and shot victim Lopez, then ran off. Defendant was the only dark-skinned person present other than a pregnant woman, and victim Lopez was certain his shooter was dark-skinned. He had never described defendant as having dreadlocks. His description to the police in English, which is not his primary language, was meant to indicate the shooter's hair was wavy or kinky. After everyone ran off, the victims' other friend emerged from the backyard.
Goodier's girlfriend described the victims and their friend as being in a good mood and bringing beer with them to share. They did not appear at all threatening. One of the victims, who had mentioned he had been a Marine stationed in Iraq, FN4 bought some marijuana from one of the women at the gathering and began to smoke it with her. After coming out of the house with Goodier, defendant's friend Moreno (who lived in the house) walked over to victim Bravo, who was over by the victims' friend near the weight bench. Defendant was there as well. Victim Bravo had appeared to be asking defendant about something; defendant responded by abruptly swinging at him. The girlfriend had not heard any angry words or anything shouted that would explain the onset of the fight. When victim Lopez joined the fray in aid of his friend, Goodier went over to confront him. The brawls split apart; victim Bravo remained engaged with defendant while the other four men moved out of the backyard. There were the sounds of two shots, and smoke came from defendant's hand. Victim Bravo fell to the ground. Defendant ran out of the backyard. Defendant moved toward the other brawl in the front of the house, gun still in hand. Defendant fired the gun at victim Lopez and then ran off. The girlfriend had not seen defendant with a gun beforehand, or seen anyone pass him a gun.
FN4. The girlfriend was unclear in her testimony about the victims' identities, believing the deceased victim involved in fighting defendant was the Marine rather than surviving victim Lopez (who was in fact the ex-Marine). However, in her earlier interview with a detective, she was clear that it was the Marine who was involved in the fight with Goodier.
On the following day, Goodier's girlfriend attended a barbeque that defendant hosted at his home. He did not appear to be acting out of the ordinary in any respect. When the girlfriend asked about the shooting, defendant shrugged and said he had "flipped" because he had not liked victim Bravo asking him about the tattoos on his hands. He had meant only to pistol-whip victim Bravo (which the girlfriend had not observed), but the gun went off; at that point, defendant got mad and shot victim Bravo.
Defendant's friend Moreno had a gun in the house of the same caliber as a casing found out front in the street. Moreno's cohabitant testified that she saw defendant shoot victim Bravo; she heard the victim ask for help, but she ran into the house and did not call for aid. She did not come back out until the paramedics arrived.
The defense called the victims' friend as a witness. He testified that Goodier had beaten him up in the front yard. Goodier also pointed something in his hand at the victims' friend, who could not tell whether it was a knife or gun. He did not recall telling an officer on the morning after that he had moved his head out of the way as Goodier fired a gun twice, or telling him that Goodier had shouted that the Mexicans needed to leave. He had seen victim Lopez dancing with a woman before the fight started. He did not see either shooting. Although he had identified defendant at the time as having been at the liquor store and the house, he did not recognize defendant at trial.
The detective who had conducted the interview testified the victims' friend had recalled that "one of the people seemed to not be pleased that he was there"; that victim Lopez was dancing with a woman, which displeased the dark-skinned man he had previously identified as defendant; that people (including defendant) then attacked victim Lopez, at which point victim Bravo interceded; and that Goodier attacked him with a knife. The victims' friend had not seen any gun, but heard first two shots, then a third. Another officer, who had spoken initially with the victims' friend, told the detective that the victims' friend had said Goodier had a gun. When the detective asked about this, the victims' friend made clear that it was a knife, not a gun. Yet another detective involved in questioning the victims' friend recalled that the latter had described Goodier as having a knife, not a gun. The victims' friend had also been certain that defendant had not been fighting with victim Bravo. Although he had identified defendant in a photo from liquor store surveillance footage as being at the house, he could not subsequently select defendant's photo in an array.
Defendant did not testify. In his statement to the police, he denied any involvement in the shootings. In the version of events on which he ultimately settled, he claimed that he had been in the bathroom when all the tumult occurred, and fled when he came outside and saw a body on the ground because he did not want any association with whatever had happened.
(People v. Leyba, slip op. at 2-7.)
IV. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran , 562 U.S. 1, 4 (2010); Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); Park v. California , 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...