United States District Court, C.D. California
MEMORANDUM AND ORDER
KENLY KIYA KATO, Magistrate Judge.
Petitioner Salvador Solorio, a California state parolee proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction for assault with a firearm and an accompanying gang sentencing enhancement. Petitioner claims (1) there was insufficient evidence to convict him of the assault or find him subject to the enhancement, and (2) he received ineffective assistance of counsel. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the Petition is DENIED.
On November 29, 2010, following a jury trial in San Luis Obispo County Superior Court, Petitioner was convicted of assault with a semiautomatic firearm, in violation of Cal. Penal Code § 245(b). Lodged Document ("Lodg.") 1 at 405. Pursuant to Cal. Penal Code § 186.22(b)(1)(B), Petitioner received a sentencing enhancement because the jury "found to be true allegations that the assault was committed... for the benefit of a criminal street gang." Lodg. 8 at 1. On June 6, 2011, Petitioner was sentenced to an aggregate term of eight years in prison. Lodg. 1 at 405.
On May 4, 2012, Petitioner appealed his conviction to the California Court of Appeal. Lodg. 5. On May 13, 2013, the court issued an unpublished opinion affirming Petitioner's conviction and sentence enhancement. Lodg. 8.
On June 24, 2013, Petitioner filed a petition for review in the California Supreme Court. Lodg. 9. On July 31, 2013, the court summarily denied the petition. Lodg. 10.
On July 22, 2014, Petitioner filed the instant Petition. On December 24, 2014, Respondent filed an Answer to the Petition. Petitioner has not filed a reply. This matter is now ready for decision.
For a summary of the facts, this Court relies on the California Court of Appeal's opinion:
Isaac Abarca was associated with a gang known as Mexican Pride. Solorio and Sanchez were members of a rival gang known as Paso Robles 13. Abarca had participated in previous gang-related fights with Solorio. Abarca and Solorio also had a personal connection. Abarca had fathered two children with Sarah K., a woman who was romantically involved with Solorio at the time of the charged offenses.
On July 10, 2010, Abarca was having a birthday party for his five-year-old son in the front yard of his residence. The mother of the son was the woman then in a relationship with Solorio. Solorio and Sanchez drove by in a Chevy Blazer. Sanchez was driving and Solorio was a passenger. Seeing Solorio in the car, Abarca threw a can of beer at the car. The beer can hit a tree, not the car. Abarca then hopped the fence and ran towards the car seeking to fight with Solorio. Solorio got out of the passenger side of the Blazer holding a knife. Sanchez got out of the driver's side holding a semiautomatic firearm. Abarca stopped when Sanchez pointed the firearm at him. There was some yelling. Abarca's father tried to pull Abarca away, and told Sanchez not to shoot his son.
Sanchez and Solorio appeared to be getting back into their car when Solorio told Sanchez, "Shoot him, shoot him." Sanchez turned and fired a shot which hit the ground in front of the feet of Abarca's father. The impact from bullet fragments or debris on the ground caused minor injuries to the father's leg.
After the shot, Abarca ran towards the car and hit its back window as it started to drive away. A friend of Abarca reached the car as Solorio and Sanchez drove off. A witness saw the car and a portion of the confrontation. She heard yelling and gesturing. She saw Sanchez fire a shot at the men standing in the road.
In his initial interview with the police, Abarca's father recited the facts as set forth above but did not state that he heard Solorio say, "shoot him, shoot him" to Sanchez. In another police interview the following day, Abarca's father told police that he heard Solorio repeatedly tell Sanchez to shoot him. Abarca claimed the shooting occurred because of the people he and Solorio associated with in the past, namely, the Mexican Pride and Paso Robles 13 gangs.
Lodg. 8 at 2-3.
The Court will discuss additional facts as they relate to Petitioner's claims for relief.
PETITIONER'S CLAIMS FOR RELIEF
Petitioner asserts three claims for habeas relief: (1) there is insufficient evidence to support Petitioner's conviction for assault with a semiautomatic firearm; (2) there is insufficient evidence to support Petitioner's gang sentencing enhancement; (3) Petitioner did not receive effective assistance of counsel at trial. ECF No. 1 at 5-6.
STANDARD OF REVIEW
A federal court may review a habeas petition by a person in custody under a state-court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas relief is not available for state-law errors. Swarthout ...