Thiessen v. Knipp

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.

         Introduction and Summary

         Petitioner was convicted of two counts of attempted murder with a ten year enhancement on each count for use of a firearm. After his conviction was affirmed on direct review, petitioner filed numerous state habeas corpus petitions, including five in the Superior Court. All state petitions containing the issues brought in the federal petition, were denied either on procedural grounds, or alternatively on the merits for some claims.

         Petitioner brings a number of claims herein which respondent claims are all procedurally barred.^[1] The merits for many, if not all, claims are reached by respondent in an alternative analysis. For the reasons that follow, all claims except two should be dismissed as procedurally barred, and the two excepted claims discussed below should be denied on their merits.

         Brief Factual Background

         Given the fact that many of the claims herein are procedurally barred, the facts of the case have less direct involvement in the adjudication here. Nevertheless, the context of the case explains the nature of the claims, barred or not. The undersigned repeats the rendition of those facts by the Court of Appeal.

Jamila Williams testified she was shot at about 9:00 p.m. on August 26, 2009. She was visiting an apartment complex on 43rd Avenue near Martin Luther King Boulevard, and was on the sidewalk standing near two people, “Dakota” and “Mexicuz” (Fresquez). A four-door silver car drove by. Fresquez told Dakota, “‘There they go, ’” and as Williams looked up, the car stopped, shots were fired, and people scattered. Williams ran after the first of two shots she heard, but was felled and saw her “leg blown wide open[.]” FN1 Fresquez was also felled. Williams admitted telling the police she thought the driver looked like “Shorty, ” but testified she had been referring to a woman.

FN1. A bullet broke Williams’s right femur, and injuries on her left leg indicated she may have been shot twice, or was twice injured by one bullet.

Carla Basurto, who did not want to testify, testified she had two children by defendant Ramirez, known as “Puppet.” Ramirez also had two children by Basurto’s mother, Minda Arias, and stayed with Arias, who shared a duplex with Basurto. Basurto knew Orantes as “Shorty” and Thiessen as “Loco.” On August 25, 2009, the day before the shooting, Basurto, Ramirez and friends got drunk to celebrate Basurto’s birthday. Basurto passed out in the afternoon and did not know of a fight between Ramirez and Fresquez. She claimed not to remember much about the next day, but testified that when she spoke to detectives she had told the truth. At some point, Ramirez sent Basurto’s brother Nathaniel and Orantes to get something, perhaps money, from Fresquez, possibly using her sister’s silver car. After Nathaniel and Orantes returned, the men talked, Ramirez seemed “pissed off, ” and then left.

Basurto admitted telling the detectives that her brother Nathaniel was upset and afraid “‘that they were going to jump [Nathaniel] and he felt like [Orantes] didn't defend him.’” She denied seeing Thiessen at that point, but testified she saw him that night or “early morning of the next day” by a liquor store. She admitted she may have told the detectives she saw Ramirez, Orantes and Thiessen leave together, but testified, “that's not what I remember right now.”

She told the detectives she saw a gun in a pillowcase, and that there were guns in a crawl space on Arias’s side of the duplex, and there were two shotguns, but testified she had learned these were not real guns, but air guns or BB guns. She also denied knowing the difference between real and fake guns. She could not remember if she told detectives she saw Ramirez get a gun and put it in the trunk of a car on the night of the shooting. She later denied remembering telling them there were two brown shotguns and a black rifle. She did not recall saying that when the men left, Orantes was driving, Ramirez was in the front passenger seat, and Thiessen was in the back. She remembered saying they came back “‘like 20 minutes later’” and “It happened really quick.’” When Ramirez returned, he yelled to Basurto and Arias to get the kids, and two carloads of people left the duplex. Fresquez testified he was a current state prisoner serving time for false imprisonment, and he had two prior convictions, for residential burglary and possession for sale of narcotics. He had sold Ramirez a vest that was supposed to be bulletproof, but lacked the armor plates that were designed to fit in it. Fresquez learned Ramirez wanted a refund, and went to Ramirez’s duplex to discuss the matter the day before he got shot. When Fresquez arrived, “a whole bunch of people started beating me up.” He could not remember who beat him, and claimed that when he spoke to detectives in the hospital, he was on drugs and therefore whatever he had told the police would not be reliable.

The next day, as Fresquez and his girlfriend were walking, Orantes “rode up on me” in a white or silver car. “He asked for the money. I told him to go to 43rd. And when they hit 43rd I had a whole bunch of friends out there, too. I guess they ran up to the car and they took off.” There were three other people in that car, including “Chaparro, ” but Thiessen was not one of them. That evening, as Fresquez was standing outside an apartment with “Dakota, ” a car that looked like the car Orantes had driven earlier drove by, and Fresquez heard gunshots. He turned to run and was struck by a bullet.FN2 Fresquez at first could not recall having told detectives that Orantes was still driving the car, but then confirmed he had done so, but he picked Orantes’s photograph only because “it looked like a similar car that he was driving.” He did not see Ramirez or Thiessen in the car. He had used methamphetamine that day.

FN2. Fresquez sustained a gunshot wound to the abdomen that broke his pelvis. Detective Brandon Luke testified he spoke with Fresquez at the hospital on September 8, 2009, and he seemed able to understand and respond to questions. Fresquez identified defendant Orantes as the driver of the car involved in the shooting, but could not identify anybody else in the car. Fresquez said that the day before, Ramirez, Orantes, Chaparro and Thiessen beat him up. On October 27, 2009, Luke spoke with Fresquez at the jail medical unit, and he identified a picture of Orantes as the driver.

On October 29, 2009, Luke spoke with Basurto, who came to the police station at his request. A video recording of her interview was played at trial. FN3 Luke and Detective Robert Stewart participated in the interview. Basurto told them Ramirez was having a dispute with Arias, so he was staying with Basurto instead, and Orantes came with Ramirez to the house because “they’re like partners.” Ramirez sent Orantes and Basurto’s brother Nathaniel to do something, “I think pick up money” from Fresquez, using her sister’s silver car. When they came back, “my brother was upset that they were gonna jump him and he felt like [Orantes] didn’t defend him, but I really don't know. [Ramirez] got all bent outta shape because he was very pissed off and then they left[.]” By “they” she meant Orantes, Thiessen and Ramirez. Orantes was driving, Ramirez was in the front passenger seat, and Thiessen was in the back. According to Basurto, Ramirez retrieved a black rifle from under the duplex and placed it in the trunk.

FN3. The transcripts of the Basurto and Thiessen recordings were not admitted into evidence, but were provided in the Clerk's Transcript. However, the parties cite them freely, treating them as accurate transcriptions of the taped interview, so we shall do the same.

About 20 or 30 minutes later Ramirez and Orantes returned, and Ramirez was crying and “screaming for me and [Arias] to grab our kids and run[.]” With Orantes’s help, they took the kids away from the house in two cars. Ramirez “was scared they were gonna come and retaliate” and hid in the house for about a week. Although Ramirez first denied shooting someone, he later told Basurto he had shot “the guy” and a “girl” while he was slouched down in the passenger seat. Ramirez told Basurto that Fresquez had disrespected Basurto’s brother by trying to jump him.

The Thiessen jury heard testimony about Thiessen’s interrogation and watched a video recording of it. Thiessen had been in jail, and when he was brought to the stationhouse, he was allowed to see that Ramirez was also there. During the interview, the detectives implied that Ramirez and others had spoken to them about the shooting, and indicated they wanted to hear Thiessen’s side of the story. At first he denied any involvement. He later admitted that he, Ramirez and Orantes “ass whooped” Fresquez over a vest on Basurto’s birthday. When the detectives indicated they had searched a garage, Thiessen said, “Fuck. Alright. And you found the weapons.” Thiessen also asked what the charges would be, how much time he would face, and whether he could still be released on January 13, 2010, his then-current release date for the unrelated case that caused him to be in jail. Thiessen elaborated about the vest, stating that when someone was about to shoot Thiessen while he was wearing it, Thiessen realized it lacked the critical armor inserts. As a consequence, Thiessen, Ramirez and Orantes beat Fresquez up. Fresquez did not provide a refund, and later, with some friends, jumped Basurto’s brother Nathaniel (“Sleepy”), who had been trying to resolve the dispute amicably. Then Thiessen, wielding a shotgun he claimed was inoperable, and Ramirez, wielding a rifle, got into a car that Orantes drove. When Fresquez was located, Ramirez fired two shots.

According to Thiessen, he pointed his shotgun at Fresquez through the same window Ramirez fired through and pulled the trigger, but his shotgun did not fire. The men then returned to Ramirez’s house, which they evacuated for fear of retaliation.

Arias testified on behalf of Ramirez. Ramirez was her “children's father, ” and she was unhappy that Ramirez, who was “like my husband[, ]” was having a sexual relationship with her daughter. They argued about this relationship the entire day of the shooting, and Ramirez never left the residence except when they both went to a gas station. There was a BB gun that looked like a rifle at the house, but no real guns.

In argument, Orantes took the position there was no showing that Ramirez intended to kill anyone, no showing Orantes knew of Ramirez’s purpose, and there remained a reasonable doubt about whether Orantes was the driver. Ramirez argued Basurto lied to the police, and there was insufficient evidence he had an intent to kill. Thiessen argued his inculpatory statements were not reliable due to intimidation, and the evidence indicated only two people were in the car, Ramirez and Orantes.

Thiessen’s jury convicted him of two counts of attempted premeditated murder, and two counts of shooting from an occupied vehicle, and sustained firearm enhancements. The other jury convicted Ramirez and Orantes of two counts of shooting from a vehicle and the attempted premeditated murder count involving Fresquez, but acquitted both men of the attempted murder count involving Williams.

People v. Thiessen, 202 Cal.App.4th 1397, 1400-1403 (Cal.App. 2012) (partial publication)

         Pertinent Procedural History

         The federal petition (First Amended Petition, ECF # 33) sets forth the following claims: Ground I--Ineffective Assistance of Counsel (Both Trial and Appellate)

         1. Ineffective assistance of trial and appellate counsel for failing to object, or otherwise have redacted, a portion of the video which hinted at gang involvement;

         2. Ineffective assistance of counsel for not retaining a medical expert and producing evidence to the effect that petitioner could not have fired the weapon he was alleged to have used given the physical condition of his hand;

         3. Ineffective assistance of counsel regarding the failure of counsel to advocate a theory that petitioner could not have been sitting in the front passenger seat as some evidence may have indicated;

         4. Ineffective assistance of counsel for failing to ask for a continuance regarding the calling of a medical witness (Dr. Leo), and/or subpoenaing the witness (this claim deals with alleged coercion during petitioner’s interrogation);

         5. Ineffective assistance of counsel for failing to utilize Maria Navarrette as an alibi witness;

         6. Ineffective assistance of counsel for failing to call petitioner as a witness, and/or improperly waiving petitioner’s right in this regard.

         Ground II- Ineffective Assistance of Appellate Counsel-not raising the issue of inflammatory pictures.

         Ground III-Introduction/admission of inflammatory pictures

         Petitioner’s direct review involved alleged coercive confession (direct claim related to I-3 above), trial court error with respect to permitting gang references (direct claim related to I-1 above), use of “kill zone” instructions, erroneous firearm enhancement, and sentencing error as ...