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Gonzalez v. Montgomery, Warden

United States District Court, C.D. California, Western Division

April 20, 2015

ERNIE GONZALEZ, Petitioner,
v.
MONTGOMERY, Warden, Respondent.

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

DOUGLAS F. McCORMICK, Magistrate Judge.

This Final Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.[1]

I.

BACKGROUND

A. Procedural History

A Los Angeles County Superior Court jury convicted Petitioner Eddie Gonzalez of one count of first degree murder and one count of attempted first degree murder. Supplemental Clerk's Transcript ("Supp. CT") 256-57. The jury also found true the allegations that Petitioner committed the offenses for the benefit of a criminal street gang and that Petitioner personally and intentionally discharged a firearm that caused great bodily injury or death. Id. The trial court sentenced Petitioner to an indeterminate term of 50 years to life, plus an additional consecutive life term, plus a consecutive indeterminate term of 25 years to life in state prison. Supp. CT 268-72.

Petitioner filed a direct appeal. The California Court of Appeal affirmed the judgment in a reasoned decision on the merits. Respondent's Notice of Lodging, Lodged Document ("LD") 4. Petitioner filed a petition for review in the California Supreme Court, which was summarily denied. LD 6.

On March 10, 2014, Petitioner filed a Petition for Writ of Habeas Corpus in this Court, which raised four grounds for relief. Dkt. 1 ("Petition"); Dkt. 2 ("Petition Attachment"). On March 31, 2014, Petitioner withdrew his third and fourth grounds for relief. Dkt. 8. Accordingly, the Petition raises two claims for relief: (1) a claim that Petitioner's right to due process was violated by the trial court's admission of testimony by a gang expert regarding prior incidents of inter-gang violence ("Ground One"); and (2) Petitioner's Sixth Amendment right to confrontation was violated by admission of hearsay evidence as a basis for the gang expert's testimony ("Ground Two"). Petition at 6; Petition Attachment at 1-14.[2] Respondent filed an answer to the Petition. Dkt. 23 ("Answer"). Petitioner did not file a reply.

B. Summary of the Evidence Presented at Trial

The underlying facts are taken from the unpublished opinion of the California Court of Appeal.[3] Unless rebutted by clear and convincing evidence, these facts are presumed correct. Tilcock v. Budge , 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254 (e)(1). Petitioner has not attempted to overcome the presumption with respect to the underlying events.

Little Valley is a criminal street gang operating in East Los Angeles. Bonifacio Marcelo testified that when he was 13 years old, he was a member of Little Valley. His sister, Griselda Marcelo, was not a member of Little Valley.
Bonifacio testified that he lived with his parents and Griselda and that their residence was within Little Valley's territory. When Bonifacio was 19 years old, he decided that he no longer wanted to be a member of Little Valley, but to leave Little Valley he needed to obtain permission from the well-respected members of the gang. Bonifacio never obtained that permission, and he moved to Las Vegas for approximately three years. Around April 2008, Bonifacio moved back to Los Angeles and lived with his parents and Griselda again.
Bonifacio testified that he was familiar with high-ranking members of Little Valley. On October 16, 2008, Bonifacio spoke to "Nani, " a "vetereno" and the oldest member of Little Valley. Nani asked Bonifacio if Bonifacio knew of a person who sold guns because Nani needed one for his nephew, Jaimez, because Jaimez had just been released from jail. Bonifacio responded that he did not know where to buy a gun. Bonifacio did not know that it was a sign of disrespect to say no to a veteran, and he was not trying to disrespect Nani when he responded.
Bonifacio testified that Jaimez was a member of Little Valley and that his moniker was "Vago." Los Angeles County Sheriff's Department Detective Ignacio Lugo, the prosecution's gang expert, testified that Petitioner was a "shot caller" (one who dictates certain activities) and a high-ranking, well-respected member of Little Valley, and his moniker was "Big Sneaks." Petitioner had several gang-related tattoos, including "LV" tattooed on his chest and "Eastside" tattooed on his stomach.
Bonifacio testified that on October 17, 2008, at approximately 12:00 noon, Bonifacio and Griselda left their home together. About 20 minutes later, they met some of Griselda's friends at the intersection of Eastman Avenue and Princeton Street, and a white Toyota and a red Intrepid were driven by them. After Griselda finished talking with her friends, Bonifacio and Griselda began walking again. The white Toyota and a red Intrepid returned and passed by them again. Griselda pointed to the driver of the white Toyota and said, "Look. There's homie Vago." The white Toyota and a red Intrepid made a u-turn, drove toward Bonifacio and Griselda again, and stopped. Bonifacio saw Jaimez, who was driving the Toyota, and Petitioner, who was in the passenger seat of the Toyota.
Bonifacio testified that Petitioner asked him, "Where you from?" and pulled out a chrome colored revolver. Bonifacio replied, "No where" [sic].
Detective Lugo testified that when a gang member asks another member, "where you from?, " the other gang member is expected to claim his gang. The question Petitioner asked Bonifacio means, "Are you loyal to [Little Valley]?" If the other gang member responds "nowhere, " it is "very disrespectful." A person telling a gang member that he is no longer part of the gang may be considered more disrespectful than just moving out of the neighborhood. If a person states that he is no longer part of the gang, the gang would retaliate against him, including the person being physically assaulted, shot, or killed.
Bonifacio testified that in response to his stating, "No where" [sic]. Petitioner stated, "Fuck Little Valley" and started shooting. Bonifacio ran behind a truck but he was shot in the left leg. Griselda fell to the ground. Los Angeles County Coroner's Office Medical Examiner Ajay Panchal testified that Griselda sustained two fatal gunshot wounds. Bonifacio testified that the Toyota and Intrepid were driven away immediately after the shootings.
Bonifacio testified that sheriff's deputies arrived at the scene of the shootings, but Bonifacio "didn't say anything" to them about the shooting because he feared further retaliation if he did so. Once Bonifacio learned that Griselda had died, he told the police what had occurred. Los Angeles County Sheriff's Department Detective James Charles testified that a murder weapon was never found.
Detective Lugo testified that Little Valley was a "traditional" gang that has existed for approximately 60 years and has approximately 100 members. A gang's territory is the gang's "heart;" it is "what they fight for... and what they'll kill for." Little Valley's territory is bordered by Indiana Street to the west, Whittier Boulevard to the south, Downey Road to the east, and Interstate 5 to the north. In order to establish their territory, a gang must commit crimes within that territory. This creates an atmosphere of fear and intimidation, and dissuades witnesses of crimes from reporting the crimes and testifying in court. The primary activities of Little Valley include tagging, automobile thefts, narcotic sales, transportation of narcotics, burglaries, transportation of weapons, extortions, kidnapping, assaults, drive-by shootings, attempted murders, and murders.
Certified court orders of two cases in which Ilene Munoz and Jose Viera were named as defendants were introduced to establish that they had been convicted in about March 2008 of assault with a deadly weapon or assault by means likely to produce great bodily injury. Detective Lugo testified that Munoz and Viera were Little Valley gang members at the time they committed the crime. Detective Lugo did not state how he knew Munoz was a gang member, but he said that the basis for his information that Viera was a gang member was that "other detectives that handled the case" had "mentioned" it.
The prosecutor asked Detective Lugo to assume, hypothetically, facts closely tracking the evidence concerning the shootings of Bonifacio and Griselda. Based on those facts, Detective Lugo opined that the shootings would have been committed for the benefit of, at the direction of, and in association with a criminal street gang, and would have been an effort to promote, further, or assist criminal conduct by gang members. Detective Lugo stated that the basis for his opinion was, inter alia, that a gang considers it "wrong" for someone like Bonifacio, who disassociated himself from a gang without permission, to "just show back up" in the gang's territory. It is disrespectful for someone like Bonifacio, a former low-level gang member, to refuse to attempt to procure a firearm for a well-respected gang member. When the person is asked by a gang member, "Where are you from, " and responds, "nowhere, " the person like Bonifacio is essentially communicating to the gang member that the person "turn[ed] his back" to the gang and is "basically telling the gang to fuck off." A shooting under the circumstances reinforces the fear and intimidation within the community. When a gang member kills another member of that gang-i.e., when the gang is "cleaning house, " thereby "tightening up the ship"-all of the other members of that gang "are going to know either you're in or you're out, " and members of rival gangs will know that the killing gang is "serious." The shootings of Bonifacio and Griselda occurred in or near Little Valley's territory.

LD 4 at ...


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