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 Michael W. Fitzgerald, 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 June 2, 2014. The Petition challenges four of Petitioner's seven convictions arising from an attempted robbery of a jewelry repair store. Respondent filed an Answer on July 28, 2014. Despite receiving an extension of time, Petitioner did not file a Reply within the allotted time.
An Amended Information charged Petitioner and his co-defendant Jesus Farfan with: (a) the attempted robberies of Juan Exeni and Miguel Jimenez (Counts 1 and 2); (b) the robbery of Enrique Villamil (Count 3); (c) assault with a deadly weapon (metal rings or a metal bar) on Exeni (Count 4); (d) assault with a semiautomatic firearm on Jimenez and Villamil (Counts 5 and 6); and (e) assault with a deadly weapon (a metal chain) on Exeni (Count 7) (Clerk's Transcript ["C.T."] 92-97). The Amended Information also alleged, inter alia, that a principal was armed with a handgun in the commission of the offenses alleged in Counts 1, 2, 3, 4 and 7 (C.T. 96).
A jury found Petitioner guilty of the offenses alleged in Counts 1, 2, 3, 5, 6 and 7, and found true the allegation that a principal was armed with a handgun in the commission of the offenses alleged in Counts 1, 2, 3 and 7 (Reporter's Transcript ["R.T."] 906-09; C.T. 166-68, 170-75). The jury acquitted Petitioner of the assault alleged in Count 4 (R.T. 907; C.T. 169, 174). Petitioner received a sentence of twelve years and eight months (R.T. 1203-05; C.T. 197-201).
The Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Martinez, 2012 WL 6636172 (Cal.App. Dec. 21, 2012)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 7, 8).
SUMMARY OF TRIAL EVIDENCE
The prosecution's evidence showed the following:
On March 24, 2011, Juan Exeni was working in his jewelry repair store on the third floor of a building in downtown Los Angeles (R.T. 323, 326). Also in the store were Exeni's employee, Enrique Villamil, and a friend, Miguel Jimenez (R.T. 326-27, 362, 403-04, 422). Petitioner, Farfan and an unidentified third man entered the store (R.T. 404). The third man asked for "Juan, " then ran forward and began to hit Exeni (R.T. 327-28). This third man pushed Exeni face down onto the floor and sat on Exeni's back (R.T. 328-29). When the third man stopped hitting Exeni for a moment, Exeni raised his head and saw Farfan with a 9 millimeter gun and Petitioner holding a metal tool used for sizing bracelets (R.T. 329-31). Farfan put the gun to Jimenez' head and then hit Jimenez with the gun (R.T. 329-30, 333, 405-06, 425). Farfan instructed Villamil to kneel down, and then Farfan hit Villamil on the head with the gun (R.T. 407, 426). Farfan took Villamil's personal jewelry, a chain and some rings (R.T. 427-28, 436).
The third man, who was sitting on Exeni's back, pulled out a metal dog chain and started choking Exeni with the chain (R.T. 335-36, 408, 430). Exeni pulled at the chain and was able to get the chain off of his neck (R.T. 336-37). Exeni then rose up halfway and knocked the third man backwards (R.T. 337). Petitioner came over and hit Exeni, causing Exeni to see "stars" and fall to the ground (R.T. 338-40, 409). Petitioner tried to tie Exeni's feet together, but Exeni began kicking (R.T. 340-42). Petitioner and Farfan told Exeni to open the safe (R.T. 342, 413). When Exeni and Villamil refused to open the safe, Petitioner handed Farfan the magazine for the gun and told Farfan to "shoot" (R.T. 410, 418, 429-30). Exeni said he would give the men everything they wanted (R.T. 341). However, when Exeni stood up, he hit the third man (R.T. 342-43). Villamil began struggling with Farfan over the gun (R.T. 343-45, 381, 411, 431). The gun went off, but no one was hit (R.T. 345, 411). The three perpetrators took off running (R.T. 346, 412). Villamil gave Farfan's gun to Exeni, and Exeni pursued Farfan (R.T. 346-47). Jimenez and Villamil, who was armed with a folding chair, joined the chase (R.T. 348, 431). Exeni fired a shot into a wall (R.T. 347-48). The three victims caught up with the three perpetrators in the area of the elevators, where a fight ensued both outside and inside an elevator (R.T. 347-50). Villamil struck the perpetrators with the folding chair (R.T. 349-50).
The third man ran out of the elevator and got away (R.T. 350-51). When Petitioner also ran out of the elevator, Exeni chased Petitioner and hit Petitioner with the gun (R.T. 350-51). Petitioner and Farfan thereafter remained in the building until security personnel and police arrived (R.T. 351, 413). Surveillance video showed Exeni and his companions chasing Petitioner, Farfan and the third man, and also showed the fight in the elevator (R.T. 363-65).
Petitioner previously had visited the store in October or November of 2010 to have some items repaired (R.T. 377-78). The day before the attempted robbery, Exeni saw Petitioner in the hallway of the building (R.T. 378-79). At that time, Petitioner ...