United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 17, 2014. Respondent filed an Answer on August 1, 2014. Petitioner did not file a Reply within the allotted time.
A jury found Petitioner guilty of; (1) possession of methamphetamine for sale in violation of California Health and Safety Code section 11378 (Count 1); (2) transportation of methamphetamine in violation of California Health and Safety Code section 11379(a) (Count 2); (3) possession of methamphetamine in violation of California Health and Safety Code section 11377(a) (Count 3); and (4) being an active participant in a criminal street gang in violation of California Penal Code section 186.22(a) (Count 4) (Reporter's Transcript ["R.T."] 363-64; Clerk's Transcript ["C.T."] 323-24, 333-36). The jury found true the allegations that Petitioner committed the offenses alleged in Counts 1 and 2 for the benefit of a criminal street gang within the meaning of California Penal Code section 186.22(b) (R.T. 363-64; C.T. 323-24, 333-36). Petitioner admitted that he had suffered two prior convictions qualifying as strikes within the meaning of California's Three Strikes law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d),  and two prior convictions for which he had served prison terms within the meaning of California Penal Code section 667.5(b) (R.T. 359-61; C.T. 323). Petitioner received a total sentence of 54 years to life (R.T. 383-85; C.T. 390-91).
The Court of Appeal reversed Petitioner's conviction for simple possession and stayed sentence on the gang participation conviction, but otherwise affirmed the judgment (Respondent's Lodgment 6; see People v. Villa 2012 WL 5359171 (Cal.App. Oct. 31, 2012)). The California Supreme Court denied Petitioner's petition for review and petition for writ of habeas corpus "without prejudice to defendant's right to seek whatever relief he might be entitled to under Penal Code section 1170.126 [effective Nov. 7, 2012]" (Respondent's Lodgment 8) (brackets in original). The California Supreme Court denied Petitioner's subsequent habeas corpus petition summarily (Respondent's Lodgment 9).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Villa 2012 WL 5359171 (Cal.App. Oct. 31, 2012). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
On the evening of December 7, 2006, officers of the Riverside Police Department were undertaking a surveillance of defendant's house in Corona. The officers had received a tip that someone in the home was selling methamphetamine.
About 7:30 p.m., defendant arrived, driving a silver car. The stakeout team moved in immediately; about five or six officers dressed in raid jackets burst from the surveillance van and approached defendant. Defendant saw the officers and sprinted toward his front door. The officers, shouting that they were the police, pursued him. Defendant reached the front door, pushed it open slightly, and tossed something inside. Some of the officers heard a metallic clank, as if a metal object struck the floor.
Defendant surrendered and the officers handcuffed him. One of the officers found a small mints tin on the floor behind the front door. Family members emerged from bedrooms and came into the front room. One of the occupants of the house claimed that the tin belonged to him or her.
The tin contained two small baggies of methamphetamine - 3 grams in one, and 0.8 grams in the other - as well as 13 empty baggies. The laboratory did not fingerprint the tin.
The officers searched defendant and found a digital scale in his front pocket. There was some crystalline residue on the scale. Defendant was also carrying $630 in currency in his wallet and a cellular telephone. A search of the residence turned up more digital scales in defendant's bedroom, another empty mints tin, and a "hide-a-can."
While the officers were conducting their investigation, two of defendant's associates, Rodolfo Pena and Blas Gutierrez, arrived at the house. Pena was driving and Gutierrez was in the front passenger seat of the newly-arrived car. The officers had Gutierrez get out of the car and they handcuffed him. Gutierrez denied having a gun, but admitted that he did have some methamphetamine in his pocket. Gutierrez had a baggie of six grams of methamphetamine, as well as $201 in cash, in his left front pocket. He also had a cellular telephone in his right front pocket. Pena was carrying $600 cash in his wallet.
Another detective searched Pena's car. In the center console, concealed under the cup holder, the detective found a digital scale, a glass smoking pipe, and a pay/owe sheet. One of the names on the pay/owe sheet was "Bola." When the officers began the investigation, they had been told that "Bola" was the nickname of the drug dealer living at the residence under surveillance. The officers determined that defendant was "Bola."
At trial, one of the police officers testified as a narcotics expert. He opined that the 3.8 grams of methamphetamine found in the tin were possessed for sale. Another police officer testified as a gang expert. The Corona Varrio Locos (or Corona Vatos Locos, or CVL) was a large gang with about 200 members in December of 2006. The gang's primary activities were possession of drugs for sale, transportation of drugs, robbery, and assault. The gang was especially known to deal in methamphetamine. Defendant had in the past admitted being a member of CVL. When defendant was booked into jail on his arrest in December 2006, defendant told the booking officer that he was a member of the "Fourth Street" gang in Corona; Fourth Street is a symbol associated with CVL. Defendant reported at booking that his gang moniker was "Bolla" (sic: Bola). Defendant has gang-related tattoos. Gutierrez, the passenger in Pena's car, was also a member of CVL ...