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Delgado v. Biter

United States District Court, E.D. California

March 30, 2015

MARTIN BITER, [1] Respondent.


GREGORY G. HOLLOWS, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[2] Petitioner challenges a judgment of conviction entered against him on February 22, 2010 in the Yolo County Superior Court on charges of attempted murder, mayhem, second degree robbery, assault by means of force likely to produce great bodily injury, conspiracy to commit a felony, and criminal street gang activity. (CT 546.) Petitioner seeks federal habeas relief on the following grounds: (1) the conviction was based on insufficient evidence that petitioner intended to kill the victim; (2) there was insufficient evidence to prove the crimes were for the benefit of a gang; and (3) admission of prior bad character evidence violated due process. Upon careful consideration of the record and the applicable law, the undersigned will order that petitioner's application for habeas corpus relief be denied.


In its memorandum and opinion, which was certified for partial publication, striking the great bodily injury enhancement, correcting a typographical error in the abstract of judgment, but affirming petitioner's judgment of conviction in all other respects on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

David Eid was driving on West Capitol Avenue in West Sacramento around 3:00 a.m. on January 21, 2009, when he saw three men engaged in what he thought was horseplay. As he drove by, however, it looked like it was getting excessive because one of the men was down on the ground and the others were hitting him. Eid looked in his rearview mirror and saw the two men viciously punching and kicking the man on the ground. One man was at the victim's feet and was kicking him in the lower body and crotch. The other man was at the victim's head, "doing more of the beating on the head" and "really working on him." The men were kicking the victim and appeared to be enjoying it.
Eid made a U-turn and drove back. The victim was not moving, appeared to be "out cold, " and the two men were hitting and kicking him around like a "rag doll." It was "pretty brutal" and they were "giving it all they had." The attack was not constant; the men would step back, then kick and hit the victim again. Eid gunned his engine and when the men saw that Eid was going to stop his truck, they took off running. Eid did not get a good look at their faces, but one man, who was wearing a baseball cap, had a look of defiance.
Eid called 9-1-1 and told the dispatcher that the victim, later identified as Jacques Harpst, was "having a hard time breathing, " was "gurgling, " and was "not responsive." Harpst's pockets were pulled out and Eid thought the two men "might have rolled him."
Officer Jack Hatton responded to the scene. Harpst was bleeding profusely from his mouth and nose, and both of his eyes were swollen to the size of golf balls. Harpst made gurgling sounds as he tried to breathe. Hatton suspected defendant, who lived a block away, was involved. A subsequent investigation proved that his suspicions were correct, and that defendant's accomplice was Michael Romero.
Harpst, age 48, did not recall the beating but remembered waking up in the hospital and being there for several months. Harpst was in the neurosurgery intensive care unit at UC Davis Medical Center. According to his brother Michael, Harpst was not "conscious" when Michael first came to visit him in the hospital, and Harpst had tubes down his throat. Michael remembered Harpst becoming "conscious" a couple weeks after the attack, when Harpst began moving his eyes and arms and began fighting to get out of his restraints. According to Michael, the beating altered Harpst's memory, hearing, sense of smell and ability to use a computer.
Dr. David Shatz, a trauma surgeon, was one of the healthcare providers who treated Harpst. A trauma surgeon takes care of the most severely injured patients, and when certain criteria are met, paramedics take a patient directly to a trauma center rather than a standard emergency room. Dr. Shatz saw Harpst when he first arrived, and based on a review of Harpst's medical charts, Dr. Shatz testified that Harpst had facial fractures and "a depressed mental status."
Dr. Shatz described the Glasgow Coma Scale, which physicians use to grade degrees of brain impairment. The Glasgow Coma Scale takes into account three aspects: the ability to move, the ability to speak, and the ability to move one's eyes around. The worst score a person can have is one point in each of the three categories, a Glasgow Coma Scale score of 3. A person with a score of 3 is "totally comatose." According to Dr. Shatz, a dead body would have a score of 3. The best possible score, the score for a normal healthy person, is a score of 15. A drunk person would likely score a 14. A score of 8 means the brain is severely injured and the person cannot protect his or her airway from aspirating vomit.
Dr. Shatz said Harpst scored a 9 on the Glasgow Coma Scale, which reflected a severe brain injury. Because of the severe injury, doctors opted to intubate him to protect his airway. When the prosecutor asked Dr. Shatz if it was fair to say in laymen's terms that Harpst was comatose, the doctor replied, "I will stick with the scale." Harpst remained on a ventilator for a few days, and was in the intensive care unit for a month. Dr. Shatz testified that Harpst was "conscious" during the month he was in the intensive care unit, but Harpst was unable to push the nursing button for assistance.
Detective Warren Estrada interviewed defendant's girlfriend, Vanessa Ramos, and a recording of the interview was played for the jury. Ramos also testified at trial, although she was less forthcoming than in her interview with Estrada. Ramos identified Romero as the man who was with defendant when Harpst was beaten. She stated that defendant had been a member of the Red Nose Pittz, a Norteño gang, for a number of years. The Red Nose Pittz liked to jump people. In fact, defendant's brother was locked up for assaulting a light rail inspector. Ramos stated the gang will beat up whoever "talks shit to [th]em" or happens to walk by when the gang members are drunk.
On the night in question, Ramos was with defendant, Romero and Erica Raya at Raya's apartment. Defendant was wearing a cap and a white jacket, and Romero had on a dark jacket. Defendant and Romero walked to Del Taco and returned about 1:00 a.m. They all sat around talking and then the two men left to "bum a cigarette" off someone. Defendant and Romero returned around 2:00 or 3:00 a.m. Romero was out of breath and immediately went into the
bathroom because he had blood on his hands. He also had a tooth in his fist; Romero removed the tooth and put it in his wallet.
Defendant told Ramos he asked a guy walking by for a cigarette and the guy "flipped out." Romero said he ran up to the guy because he thought the guy was going to hit defendant. Ramos asked if defendant hit the guy, and defendant said "no, " but then said "yes." Defendant said Romero kept hitting the guy. According to Ramos, Romero appeared "fucking happy that he hit the guy or something." Ramos also said defendant told her he wanted a cigarette, but then wanted to see if the guy had any money. She told him it was "hella stupid" to rob people. Defendant asked Ramos to check if he had blood on his white jacket but she did not see any.
According to Raya, when defendant and Romero returned to her apartment they said they had beaten a guy who reacted badly when defendant asked for a cigarette. They all spent the night at Raya's place, and later on that morning she heard defendant say they beat up the guy and robbed him.
Detective Estrada interviewed defendant in February 2009, and a redacted recording of the interview was played for the jury. Initially, defendant denied hitting Harpst. But defendant eventually said he hit Harpst's neck or face once at the beginning of the altercation, and that Romero did most of the fighting. Defendant thought Romero probably believed Harpst was disrespecting him when Harpst "flipped out" about their request for a cigarette and then threw one at defendant. When Detective Estrada asked what defendant would do if someone disrespected him in front of his "homeboys, " defendant said, "You disrespect them back." Defendant said rumors were going around about the fight, and people said the victim was dead or brain dead.
Officer Anthony Herrera also interviewed defendant. Defendant told Officer Herrera the altercation started because the victim disrespected defendant by throwing cigarettes at him. Defendant said he hit Harpst a few times, but mainly in the leg area. According to defendant, Romero stomped on Harpst's head.
Officer Herrera's main focus during the interview was on defendant's gang activity. Defendant belonged to the Red Nose Pittz and his gang friends called him Ryda because he was willing "to ride for the gang, " which meant to commit crimes for them. Defendant admitted that he and other gang members would beat up and rob people; it was part of being in the gang. During one of Officer Herrera's previous contacts with defendant, he told Officer Herrera they committed crimes to show the Broderick Boys that the Red Nose Pittz were worthy of being a Norteño in the Broderick area, and because they were tired of getting beaten up by the Broderick Boys. The Broderick Boys were the predominant gang in the West Sacramento area.
Officer Michael Duggins testified as a gang expert regarding Norteños in general, and the Red Nose Pittz in particular. The Norteños' principal activities are assault with great bodily injury, murder and robbery. The Red Nose Pittz and the Broderick Boys are both Norteño subsets, and their rivals are the Sureños. The Red Nose Pittz are from Citrus Heights, while the Broderick Boys' territory is West Sacramento. According to Officer Duggins, both defendant and Romero were active members of the Red Nose Pittz.
Officer Duggins said that to get into a gang, it is not enough to associate with gang members; one has to engage in criminal activity that will benefit the gang. The use of force or fear creates respect with gang members. Gang members typically use monikers. A common one is Ryda, which means you are willing to ride along with the gang to party or commit crimes with them. Officer Duggins reviewed various photographs of defendant, Romero and other gang members throwing gang signs and wearing gang colors, and explained how they indicated their gang involvement. Officer Duggins had prior contacts with defendant in which defendant admitted he was a gang member.
Officer Duggins opined that the beating and robbery of Harpst was committed in furtherance of the gang because (1) the gang member and gang gained a material benefit from whatever was taken from the victim, and (2) the gang member and gang achieved an increase in status. According to Officer Duggins, the crime increased defendant's status in the gang, and elevated the gang's status in the community via word of mouth. Officer Duggins testified that when he and fellow law enforcement officers were investigating the assault, many people had heard about the crime. Defendant and Romero were well-known gang members and these offenses elevated the gang's status. Ramos, defendant's girlfriend, told Officer Duggins that defendant had participated with other gang members in assaulting and robbing people to gain the gang's respect, and that they would brag about their escapades "to show that they had put in work for the gang."

(Res't's Lod. Doc. 1 at 3-8; 213 Cal.App.4th 660, 662-66, 153 Cal.Rptr.3d 260 (2013).)

After petitioner's judgment of conviction was affirmed except as outlined above by the California Court of Appeal, he filed a petition for review in the California Supreme Court. (Resp't's Lod. Doc. 5.) The Supreme Court denied the petition without comment or citation on May 2, 2013. (Resp't's Lod. Doc. 6.) On July 23, 2014, petitioner filed the instant federal habeas petition in this court.


I. AEDPA Standards

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).

Accordingly, "a habeas court must determine what arguments or theories supported or... could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[, ]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S.Ct. 362, 366 (2002).

When a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1091 (2013). However, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is ...

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