United States District Court, C.D. California, Western Division
Maurice Davon Robins, Plaintiff, Pro se, Soledad, CA.
For R T.C. Grounds, Respondent: Kenneth C Byrne, CAAG - Office of Attorney General, California Department of Justice - Supervising Deputy AG, Los Angeles, CA; Shira Seigle Markovich, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
PAUL L. ABRAMS, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, the Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be dismissed with prejudice.
On October 9, 2008, a Los Angeles County Superior Court jury convicted petitioner of two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), and one count of attempted voluntary manslaughter (Cal. Penal Code § 664, 192(a)). (Reporter's Transcript (" RT") 2703-07; Clerk's Transcript (" CT") 114-16). The jury also found true the allegations that petitioner personally used a firearm within the meaning of California Penal Code § 12022.5(a), and personally inflicted great bodily injury upon his victim within the meaning of California Penal Code § 12022.7(a). (RT 2704-06; CT 114-16). Petitioner was sentenced to a term of sixteen years in state prison. (RT 3307-11; CT 147-52).
Petitioner filed a direct appeal, and the California Court of Appeal affirmed the judgment on June 17, 2010, in an unpublished decision. (July 10, 2013, Lodgment Nos. 3-5; Petition for Writ of Habeas Corpus (" Petition"), Attached Pages at 10-27). The California Supreme Court denied review on September 22, 2010. (January 2, 2013, Lodgment Nos. 4, 5). Petitioner then sought habeas relief in the California courts. His first petition, filed in the Los Angeles County Superior Court, was denied on March 1, 2011. (Petition, Attached Pages at 29). His next petition, filed in the California Court of Appeal, was denied on April 21, 2011. (January 2, 2013, Lodgment Nos. 6, 7). His final petition, filed in the California Supreme Court, was denied on December 14, 2011. (January 2, 2013, Lodgment Nos. 8, 9).
On October 30, 2012, petitioner filed the instant federal Petition. On July 10, 2013, respondent filed an Answer. On August 16, 2013, petitioner filed a Traverse.
This matter is deemed submitted and is ready for a 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.
A. Prosecution Evidence
1. Richard Alvarez
On May 2, 2008, Richard Alvarez (Richard) lived on Alep Street in Lancaster, five houses away from [petitioner]. Richard and his brother, Robert Alvarez (Robert), collectively, the Alvarez brothers, were barbecuing in the front yard with two friends and Richard's two-year-old daughter. Richard was wearing pocketless board shorts and so he had tucked his cell phone and wallet into the waistband.
Richard was walking down the street with his daughter on her tricycle when they were approached by two barking dogs, a shepherd mix and a smaller lap dog. The child became frightened. Seeing people standing by the door at the house where he believed the owner of the dogs lived, Richard tried to get their attention to ask them to get the dogs away from his daughter and himself. They ignored him. When he yelled to get their attention again, [petitioner] appeared at the door. [Petitioner] told Richard not to worry about the dogs and to keep on walking.
[Petitioner] came out to the street where his dog was still circling Richard's daughter. As Richard placed his daughter behind him, his wallet and cell phone fell out onto the street. He grabbed his wallet. [Petitioner] grabbed Richard's cell phone and threw it on the street repeatedly, smashing it into pieces. Richard picked up his daughter and her tricycle and walked back to his home. He did not threaten [petitioner] or say he would return, and he did not swing the tricycle at [petitioner].
When Richard reached his home, he told Robert what had happened. Robert began walking toward [petitioner's] house. Richard asked his roommate to watch his daughter and also began walking toward [petitioner's] house. He intended to retrieve his SIM card from his broken cell phone. He was unarmed. Robert was already heading back to Richard's house, but when Richard walked by him, he turned and followed Richard toward [petitioner's] house.
Richard was angry. He did not, however, intend to harm [petitioner]. He believed a fight might ensue, but he did not anticipate weapons would be involved.
When Richard reached [petitioner's] house, he did not immediately see anyone. Robert was directly behind him. Richard turned and approached the front door. As he turned, he saw [petitioner] standing just inside the front door, holding a shotgun at his side. [Petitioner] was standing approximately 15 to 20 feet from Richard. [Petitioner] raised the gun and fired. Richard was hit in the neck. Had he not moved when he saw the gun, he would have been shot directly in the face.
Richard felt heat in his throat and tasted gunpowder. He was aware he was bleeding. He ran home, took his shirt off and wrapped it around his neck. One of the neighbors called 911 and paramedics arrived approximately 20 minutes later.
Richard was hospitalized for seven days. He suffered gunshot injuries to his face and neck, requiring 15 staples. Richard lost some movement and control of his neck. He continued to have daily pain and limited mobility due to tightness. He had permanent scarring from the injury.
2. Robert Alvarez
On May 2, 2008, during the barbecue at Richard's home, Richard's daughter said she wanted to ride her tricycle, so Richard took her out. When they returned, Richard looked confused and angry. His daughter appeared scared and was crying. Richard said that a dog down the street had tried to attack her. Richard told Robert that when he asked a person nearby to get the dog, the person came over and tried to jump him.
Robert was angry and walked toward [petitioner's] house. Based on what Richard had told him, it would not have surprised Robert if a fight started, and he intended to defend his brother if it did. Robert was unarmed. He was wearing a pair of swimming trunks that had pockets, but he never put his hands in the pockets.
As Robert approached [petitioner's] property, he observed four to six people, including [petitioner], sitting in front of the house. Robert asked if one of them owned the dog involved in the incident, but he got no response.
Robert may have cursed at the group of people. As he walked away he thought he heard someone say, " I grabbed a shotgun." The group went into the house. Robert began walking back to Richard's home. Robert did not threaten anyone.
Robert saw Richard walking toward [petitioner's] house. As Richard passed him, Robert turned around and followed Richard. Robert was prepared for a fight. If one ensued, he would not back down and would back up Richard. He did not tell Richard someone had mentioned getting a gun.
The Alvarez brothers entered [petitioner's] driveway and walked toward his house. Robert could see someone standing in the front door. Richard did not say anything when he saw the gun. Neither of the brothers advanced toward the person with the gun. Robert never reached into his pocket as if to draw a weapon. The gun was not pointed up in the air; it was pointed at Richard's face.
As Richard followed by Robert rounded the corner to the walkway toward the door, someone swung a gun up and shot. Robert heard the gunshot right when they turned the corner. Richard was shot in the face and neck. Robert was hit by pellets in the chest. He removed the pellets and did not suffer any lasting injury. [Petitioner] never tried to close the door, apologize, or seek a non-violent resolution of his dispute with Richard.
The Alvarez brothers ran back to Richard's home. Robert yelled for neighbors to call 911. By this time, Richard was pale and was not responding to questions. Subsequently, he was airlifted to the hospital. Robert stayed behind to speak with the police officers. While he answered questions, he was worried about his brother dying and wanted to get to the hospital. He answered quickly and did not give a thorough or accurate description of what had happened.
3. David J
On May 2, 2008, 16-year-old David J. and his friend, Rod, rode their bikes to [petitioner's] house to hang out and watch television. Prior to this day, David had never met [petitioner] and had never seen or met the Alvarez brothers.
David was standing outside [petitioner's] house when he saw Richard and his daughter coming down the street and then a dog " brushed up" against the daughter. Richard started yelling and cursing at David to get the dog.
When David called him, [petitioner] came out of the house. [Petitioner] got mad and started cursing at Richard. [Petitioner] was on the sidewalk. Richard was in the middle of the street with his daughter and the tricycle. They were approximately 6 or 7 feet apart. Richard grabbed the tricycle, took two steps toward [petitioner] and swung the tricycle toward him.
As Richard swung the tricycle, his wallet and cell phone dropped to the ground. He picked up his wallet. [Petitioner] grabbed the cell phone and smashed it on the ground. David did not remember noticing Richard's daughter crying, but she did appear to be scared.
As Richard left, he said, " I'll be back." Richard appeared angry but David did not recall that Richard threatened to kill anyone.
David went into the house and told [petitioner] that Richard might come back. Then David looked outside and saw Richard and a man with tattoos coming toward the house. [Petitioner] ...