United States District Court, Central District of California
Jose Antonio Avila, Petitioner, Pro se, Delano, CA.
For M Biter, Warden, Respondent: Michael C Keller, LEAD ATTORNEY, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA; Scott A Taryle, CAAG - Office of Attorney General of California, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ALICIA G. ROSENBERG, United States Magistrate Judge.
The court submits this Report and Recommendation to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the magistrate judge recommends that the Petition for Writ of Habeas Corpus be denied.
SUMMARY OF PROCEEDINGS
On November 6, 2009, a Los Angeles County Superior Court jury found Petitioner guilty of first degree murder and found true certain firearm and gang enhancements. (Lodged Document (" LD") 1 at 663.) The court sentenced Petitioner to 50 years to life in state prison. (Id. at 687.)
On June 6, 2011, the California Court of Appeal affirmed. (LD 6.) On August 10, 2011, the California Supreme Court denied review. (LD 8.)
On October 30, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Respondent filed an answer and Petitioner filed a reply.
STATEMENT OF FACTS
Below are the facts set forth in the California Court of Appeal decision on direct review. To the extent an evaluation of Petitioner's claims for relief depends on an examination of the record, the court has made an independent evaluation of the record specific to Petitioner's claims for relief.
A. The Shooting
On May 5, 2008, between 7:00 and 7:30, Juan Siordia known by the gang moniker " Slim, " and Alejandro Villa known by the gang moniker " Slash, " were on Van Nuys Boulevard. Siordia and Villa were associated with the Terra Bella Gang. One of the rivals of the Terra Bella Gang was the Project Boyz Gang. Prior to May 5, Siordia and Villa fought with Project Boyz Gang members on multiple occasions.
Siordia and Villa were near a Wells Fargo bank for about five minutes when a " kid" approached them on a bicycle. The kid said " Project Boyz, " and Siordia responded " fuck rejects, " which is a disrespectful reference to the Project Boyz Gang. The kid and Siordia fought. Siordia saw a group of between 10 and 15 young men approaching. Some of the young men fought with Siordia and some fought with Villa. The fight lasted approximately 20 seconds before Siordia and Villa ran away. While they were running, Siordia heard a gunshot and ...