United States District Court, E.D. California
Lauro Sanchez, Petitioner, Pro se, COALINGA, CA.
For P. D. Brazelton, Respondent: Kathleen Anne McKenna, LEAD ATTORNEY, California Dept. Justice, Office of the Attorney General, Fresno, CA.
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
Jennifer L. Thurston, UNITED STATES MAGISTRATE JUDGE.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation after having been convicted by a jury of attempted deliberate and premeditated murder, second degree robbery, and assault with a firearm. The jury found Petitioner had used a firearm in the commission of these acts and that the victim suffered great bodily injury. Petitioner was sentenced to an indeterminate term of life with the possibility of parole for the attempted murder conviction and a consecutive indeterminate sentence of 25 years-to-life for the enhancement. (Doc. 10, Ex. A, p. 1).
Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the " 5th DCA"), which affirmed Petitioner's conviction. (Doc. 10, Ex. A). Petitioner then filed a petition for review in the California Supreme Court that was denied on April 18, 2012. (Lodged Documents (" LD") 16; 17).
On July 13, 2012, Petitioner filed the instant petition. (Doc. 1). Respondent's answer was filed on September 14, 2012. (Doc. 10). Respondent does not contend that the sole ground for relief in the petition has not been fully exhausted. (Doc. 10, p. 6). On October 24, 2012, Petitioner filed his Traverse. (Doc. 13).
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
On Monday morning, March 9, 2009, Corina Hernandez was in the back office of one of the two grocery stores she co-owned with her husband, taking account of the receipts and money accumulated over the prior weekend. She believed 20 to 30 thousand dollars in cash was on her desk at that time.
Margarita Medina, the cashier at the front register, informed Hernandez that a regular customer had a check he wished to cash. Check cashing was a service Hernandez provided to regular customers. Hernandez told Medina to let the customer come back to her office.
The regular customer, however, turned out to be defendant, whom Hernandez recognized from her previous encounter with him a day or two prior when he had first come in to ask about cashing a personal check. Hernandez denied defendant that service on that day despite his pleas of urgency and necessity because, as a matter of policy, she only cashed checks for regular customers and she did not know defendant. Although he had questioned why she would not cash his check when he knew she frequently cashed the checks of one Wilber Galvez, defendant left without incident.
On this Monday, however, Hernandez became fearful once she realized who the " regular customer" was. Defendant stepped into her office, immediately closed the door behind him, and told her he had come for money.
Hernandez stood up from her chair and tried to protect the money on her desk. She struggled with defendant, breaking a fake fingernail in the process. Defendant reached into his waistband and pulled out a gun. He pushed Hernandez back into her chair. He held the barrel of the gun to the left side of Hernandez's forehead. Hernandez raised and flapped her arms in response to seeing the gun. Without saying another word, defendant pulled the trigger, and seconds later, pulled the trigger again. One bullet entered Hernandez's head above her left eye, and exited behind her left ear. Another bullet went through the office wall and into the ceiling outside the office. Defendant grabbed some money from the desk and fled the office, closing the door behind him.
As defendant was running through the store, he came face to face with Medina who, after hearing the gunshots, was walking back to see what was going on. Defendant held his midsection and ran past her. Another customer saw defendant run out of the store and to a waiting truck. Defendant got in on the passenger side, and the truck quickly left the scene.
(Doc. 10, Ex. A).