United States District Court, E.D. California
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
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