United States District Court, C.D. California
For Adam Joseph Romero, Petitioner: Albert Perez, Jr, Law Offices of Albert Perez Jr, West Covina, CA.
For Ron Barnes, Respondent: Kevin R Vienna, LEAD ATTORNEY, CAAG Office of Attorney General of California, San Diego, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARGARET A. NAGLE,
UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted 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.
On October 5, 2012, Petitioner, a prisoner in state custody who is represented by counsel, filed a habeas petition pursuant to 28 U.S.C. § 2254 (" Petition"). Respondent filed an Answer in response and lodged the pertinent state record (" Lodg."). Petitioner thereafter filed a Reply. The matter is submitted and ready for decision.
In December 2009, a Riverside County Superior Court jury found Petitioner guilty of: vehicle theft, which was committed for the benefit of a criminal street gang (California Vehicle Code § 10851(a) and California Penal Code § 186.22 (" Section 186.22"), subd. (b)) (Count 6); witness intimidation, which was committed for the benefit of a criminal street gang (California Penal Code § 136.1(a) and Section 186.22(b)) (Count 7); and active participation in a criminal street gang (Section 186.22(a)) (Count 9). (Lodg. Nos. 1-2, Clerk's Transcript (" CT") 415, 526-30.) Petitioner admitted that he had served a prior prison term and committed his current offenses while he was out on bail. (CT 368; Lodg. Nos. 3-5, Reporter's Transcript (" RT") 32-34, 43-44.) Petitioner was sentenced to a determinate term of six years plus a consecutive indeterminate term of seven years to life. (CT 553-54, 579, 581-84.)
Petitioner appealed and raised the claims at issue in this case. (CT 580; Lodg. Nos. 6-8.) On June 15, 2011, the California Court of Appeal affirmed the judgment. (Lodg. No. 9.) Petitioner then filed a petition for review in the California Supreme Court, which was denied on September 14, 2011, without comment or citation to authority. (Lodg. Nos. 10-11.)
SUMMARY OF THE EVIDENCE AT TRIAL
Danielle Lafaye (" Lafaye") rented a room in the apartment of Richard Whittington (" Whittington"). Lafaye had a Mazda automobile, which she parked outside the apartment. On the afternoon of October 4, 2008, she took a nap. When she woke up in the late afternoon or early evening, she noticed her car keys were gone. She looked out the window and saw that the Mazda was missing. She also noticed that someone had gone through her purse and money was missing. (RT 95.)
Lafaye believed that Whittington had taken her car, but she was scared to report the theft to the police due to the type of people with whom Whittington associated. (RT 96.) She called Shawn Barnes, a friend of Whittington, and Barnes told her Whittington had the car, everything was fine, and he would bring the car back with some food. (RT 96-97.) That same day, Whittington's parole officer came by the apartment, and Lafaye told him that Whittington had taken her car but she had not yet reported the situation to the police. (RT 96.)
When Lafaye woke up the next morning, October 5, 2008, her car still was missing. She left a voicemail for Whittington, advising him that she would report the car as stolen if it was not returned; she left similar voicemails for other people. (RT 97.) The next day, Lafaye looked out her window and saw her Mazda following a white truck driven by Whittington. A " Mexican" with a " shaved head" was driving her car. Whittington ran up the stairs to the apartment, grabbed something, and told Lafaye she was going to get her car back. The truck and the Mazda then pulled away. (RT 98-99.)
Shortly afterward, Lafaye received a phone call from Petitioner. He was an acquaintance, and she had his number in her cell phone and recognized it when the call came in. She also recognized Petitioner's voice, and he identified himself as " Mitey, " the name by which Lafaye knew him. Lafaye believed that " Mitey" was Petitioner's gang name and that he associated with gang members from Corona. (RT 92, 99-100, 135.) Petitioner stated that he had purchased the Mazda, and it now belonged to him. Lafaye said that she was going to report the car stolen and Petitioner got " really upset and mad." She indicated that she had not yet reported the car stolen, and asked Petitioner to bring it back. Petitioner told Lafaye not to contact the police and said that, if Lafaye reported the car stolen, he would blow up the car and the apartment and would come over and " take care of" her. (RT 100, 103.) The phone call made Lafaye nervous and scared, which made her not want to cooperate with the police. (RT 100, 103.)
At approximately 11:00 p.m. that evening, Lafaye was outside the apartment having a cigarette. She was standing right underneath a streetlight, and the street was lit up. Whittington walked up, and the two spoke. Lafaye saw her Mazda drive by slowly. The car was driven by " Weasel" (Gilbert Hernandez, Petitioner's co-defendant (" Hernandez")). Lafaye understood that Hernandez was a gang member. Hernandez pointed a gun at her and made eye contact. Lafaye was " [e]ven more scared" as a result of this incident. (RT 104-05, 108, 136.) Whittington yelled to Weasel to go back to the Howard Johnson motel in Norco. (RT 107; CT 347-48.)
Lafaye called 911 again, and the recording of that call was played for the jury. She told the dispatcher about the above incident and that the men were going to the Howard Johnson motel. (RT 106-07; CT 343-50 (People's Exhibit 5A, transcription of the 911 call).)
The police responded and took a report from Lafaye. She was shown photo lineups and identified photographs of Petitioner and Hernandez. The police found her car, and when she saw it at the police station, it was full of items that did not belong to her, including computers, printers, and check-making materials. (RT 107-11.)
Eric Hibbard, a police officer with the City of Riverside (" Hibbard"), went to the Howard Johnson motel. He found Petitioner and two women in a room. One of the women stated that: she arrived there after being driven in a black Mazda that was parked in front of the room; and Petitioner had the keys to the Mazda. Hibbard asked Petitioner if he had the Mazda keys; Petitioner responded that he did and unclipped the keys from his belt loop and handed them over. The DMV paperwork for the car was in the purse of one of the women, who stated that Lafaye had said the woman could use the car. (RT 143-49.)
Jeffrey Jones, a detective for the City of Riverside, conducted an inventory of Lafaye's Mazda. He discovered evidence of fraud activity, including blank checks, a computer, a printer, and DMV paperwork. (RT 150-51, 154.) Jones interviewed Petitioner, who stated that he drove the Mazda, and had seen Hernandez around but did not know him very well. (RT 152-53, 156.)
Michael Riley, a senior investigator with the Riverside County District Attorney's Office (" Riley"), testified as the prosecution's gang expert. (RT 158-65, 213-14.) Riley was familiar with Corona Varrio Locos, also known as Corona Vatos Locos (" CVL"), a Hispanic turf gang in the City of Corona and outlying areas. (RT 165-66, 169.) Although CVL operates primarily in Corona, it is not uncommon for gangs such as CVL to commit crimes in rival gang territory. A crime may be gang-related even if it is committed outside the gang member's territory. (RT 166-68.)
The primary activities of CVL are major assaults, weapons possession, auto theft, and witness intimidation. (RT 168.) There are a number of signs for the CVL gang, which may be displayed in graffiti or member tattoos. Not all gang members display tattoos. (RT 168-70.) In October 2008, CVL had over 200 members, who were divided into subgroups known as cliques. Petitioner belonged to one of those cliques, which was named Bandidos. Ricardo Serrato (" Serrato"), Francisco Cisneros Arreola (" Arreola"), Petitioner's brother, and Anwar Dawud belonged to the same clique. Petitioner was an active CVL member in October 2008. (RT 170-79, 188, 207-08, 214-16.)
Petitioner's gang moniker was " Little Mitey, " " Mitey 2, " or " Mitey II." Petitioner's older brother, Anthony Romero, was an active CVL member and his moniker was " Mitey 1." (RT 187-89.) Riley had reviewed field identification cards, which documented police officer contacts with Petitioner. Riley also had interviewed Petitioner in 2008, after the charged crimes, and Petitioner stated that if he were " hit up" -- i.e., asked by another gang member to which gang he belonged -- he would claim membership in Corona. (RT 189-92.) In addition, Riley was aware that Petitioner associated with known CVL members, as documented in field identification cards and photographs. In contacts documented in 1997 and 2005 field identification cards, Petitioner admitted to being a CVL member; in a 2001 contact, he denied gang membership but admitted he associated with the Bandidos clique. (RT 192-211.)
Riley based his opinion that Petitioner was an active CVL member in October 2008, on the totality of various factors. These included: Petitioner's interview statement that he would claim Corona gang membership if " hit up"; Petitioner's prior contacts with law enforcement in which he was observed associating with CVL members; Petitioner's 2003 conviction, in which he admitted the truth of a Section 186.22 gang enhancement; an address book belonging to a CVL member listed Petitioner's name, his gang moniker, and his booking number for the 2003 charge; and a photograph of graffiti, which included references to the Bandidos clique and Petitioner's gang moniker. (RT 217-19.) Riley did not possess any information indicating that Petitioner had left the CVL gang. (RT 222-23.)
Riley testified that, in October 2008, Hernandez, Petitioner's codefendant, was an active member of Barrio Norwalk, a criminal street gang also known as Varrio Norwalk. Denise Herrera, who was arrested with Hernandez, was a member of the same gang. (RT 182-84.) When Hernandez and Herrera were arrested, forged California identification cards were found in the car. (RT 186.) The parties stipulated that Barrio Norwalk was a criminal street gang for purposes of Section 186.22 and " the issues before" the jury. (RT 158.)
Riley described various crimes committed by CVL members and opined that they constituted predicate crimes within the meaning of Section 186.22. (RT 173.) On July 20, 2004, Serrato was convicted of being a felon in possession of a firearm, with a Section 186.22(b) gang enhancement found to be true. (RT 174-75.) On June 19, 2007, Arreola was convicted of the same crime, and a gang enhancement was found to be true. (RT 176.) On July 16, 2003, Petitioner was convicted of vehicle theft, and a gang enhancement was found to be true. (RT 176-78.)
Riley testified about his team's encounter with Petitioner at a May 2008 Cinco de Mayo festival. According to Riley, this festival has come to serve as a yearly gathering for CVL members. When the police contacted him at the festival, Petitioner was in the presence of Anwar Dawud, an active CVL member. Petitioner and Dawud were given a Section 186.22 warning, namely, told that their gang is considered to be a criminal street gang under Section 186.22, participation in the criminal street gang is a felony, and the commission of any felony could result in a sentence enhancement. Riley considers it significant that Petitioner was hanging out with Dawud at this festival, because the festival attracts CVL members and Petitioner's attendance and fraternization with Dawud demonstrates Petitioner's continuing interest in being a part of the group. (RT 207-11.)
According to Riley, the crime at issue is referred to as a known victim vehicle theft. Outside of domestic dispute situations, the primary perpetrators of this type of vehicle theft are gang members. Because of the " intimidation factor, " when this crime is committed in a gang area, victims are less likely to report it to the police than when the theft is from an anonymous victim. (RT 224.) Witness intimidation is a primary CVL activity, and Lafaye's testimony at trial illustrated the intimidation factor inherent in known victim vehicle thefts by gang members. (RT 224-27.)
Riley has observed a connection between the CVL and Varrio Norwalk gangs. He is aware of a home located in the middle of CVL territory that is occupied by a Varrios Norwalk member as well as a CVL member. There have been a number of criminal cases stemming from activities which occurred at that property, including a carjacking. Riley opined that the ability of a Varrios Norwalk gang member live in this home and commit crimes in CVL territory without retribution demonstrates the existence of an alliance between the two gangs. Riley recalled another instance in which members of both gangs were in the same car and the Varrios Norwalk member committed a crime in CVL territory without retribution. (RT 227-29.) Thus, it did not surprise Riley that Hernandez was operating within CVL territory with Petitioner. (RT 279.) Riley also described how, in California prisons, gang members are divided between those who claim membership in the northern part of the state and those who claim membership in the southern part and how these prison/geographical associations often carry over into the street as between gang members who otherwise might be rivals. Riley also testified that members of both CVL and Varrios Norwalk are under the umbrella of the Mexican mafia when in custody. (RT 229-31.)
The prosecutor posed a hypothetical to Riley based on the above-described facts of this case and asked Riley how these instances of witness intimidation and possession of a stolen vehicle benefitted a criminal street gang. Riley responded that: the possession of the stolen vehicle enabled a gang member to be mobile and commit other crimes, such as narcotics sales or a drive-by shooting, because the car could be ditched after the other crime(s) and nothing about the car would tie it to the gang member; and witness intimidation is how gangs are empowered and, thus, cause members of the general public to be afraid to report crimes by gang members. (RT 231-33.) The prosecutor then added facts to the hypothetical related to the evidence of fraud found at the motel and in the car, as well as the fact that a witness failed to appear at the preliminary hearing and appeared fearful when testifying at trial. Riley opined that there was a growing trend of gangs committing fraud-based crimes, including check fraud, and this often was done using a motel as a base. Again, the stolen vehicle would benefit the gang member, because it would allow him to evade identification when the cashing or attempting to cash fraudulent checks. (RT 235-36.)
Riley further opined that, based upon the facts of the hypothetical, the crimes were committed by a CVL member in association with or for the benefit of another criminal street gang, i.e., Varrios Norwalk. (RT 237-45.) Riley noted, inter alia, that the victim initially was threatened over the phone by a CVL member and then was threatened physically by a Varrios Norwalk member (when he drove by in her car and pointed a gun at her), and this was another example of the members of two gangs acting in association with each other. (RT 240-41.) This type of witness intimidation demonstrates the intent to promote, further, or assist the two gangs, because the witness failed to appear at the preliminary hearing and was fearful when she testified at trial, thus hindering the prosecution of the case. (RT 241-42.) Riley also opined that the facts of the hypothetical demonstrated that the CVL member acted to promote, further, and assist CVL in its primary activities, because his acts enabled further criminal activities and made it more difficult for law enforcement to investigate and suppress gang activity in general. (RT 245-47.) Riley further opined that it is very common for a gang member to commit a crime that benefits both him personally and his gang. (RT 291-92.)
On cross-examination, Riley testified he was not aware that Petitioner had any gang tattoos. (RT 268.) Riley noted that, among younger gang members, it was becoming more common to stay away from tattoos. This change started around the time Petitioner became a gang member. (RT 268-70.) Riley conceded that there were no field identification cards for Petitioner during a three-year period (Spring 2005 through Spring 2008). (RT 275.) On redirect examination, Riley explained why there might not be field identifications for a gang member during a set period of time, ...