Gonzalez v. Paramo

          ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING IN PART PETITIONER’S REQUEST FOR CERTIFICATE OF APPEALABILITY

          HON. GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE

         On June 3, 2014, Petitioner Christopher Gonzalez (“Petitioner”), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254, challenging his state court conviction. On June 24, 2015, the Magistrate Judge filed a Report and Recommendation Denying Petition for Writ of Habeas Corpus. On June 3, 2015 Petitioner filed Objections. For the reasons stated below, this Court ADOPTS the Magistrate Judge’s Report and Recommendation and DENIES the Petition.

         PROCEDURAL BACKGROUND

         A. BENCH TRIAL AND DIRECT APPEAL IN STATE COURT

         On September 21, 2010, the San Diego County District Attorney’s Office filed a Third Amended Information charging Petitioner with one count of attempted murder, California Penal Code (“Penal Code”) sections 664/187(a); assault with a deadly weapon, Penal Code section 245(a)(1); first degree burglary, Penal Code sections 459, 460; aggravated mayhem, Penal Code section 205; and simple mayhem, Penal Code section 203. (Lodgment No. 1 at 46-47^[1]; ECF No. 4-3). The Third Amended Information also alleged that Plaintiff inflicted great bodily injury upon the victim, Penal Code section 12022.7(a) and that Petitioner used a deadly weapon, Penal Code section 12022(b)(1). (Id.)

         On September 21-23, 2010, the state court held a bench trial. (Lodgment No. 2, ECF Nos. 4-6, 4-7.) The trial court found Petitioner guilty of all charges and found all special allegations to be true. (Lodgment 6 at 5, ECF No. 4-15.) On January 11, 2011, the trial court sentenced Petitioner to a determinate sentence of nine years, followed by an indeterminate term of fourteen years to life. (Id.)

         On November 18, 2011, Petitioner filed a direct appeal of his conviction in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3, ECF No. 4-13.) Petitioner claimed erroneous admission of his confession, his conviction for simple mayhem should be vacated because it was a necessarily included offense of aggravated mayhem, and sentencing error. (Id.) On October 29, 2012, the state appellate court determined that the trial court erred in admitting Petitioner’s post-arrest confession because his confession was involuntary under Miranda v Arizona, 384 U.S. 436 (1996). (Lodgment No. 6 at 8, ECF No. 4-15). However, the court found the error harmless beyond a reasonable doubt because the record contained substantial evidence, other than his confession, to support Petitioner’s conviction. (Id. at 8-19.) The state appellate court also found Petitioner’s conviction for simple mayhem was a lesser included offense of aggravated mayhem, and therefore vacated the simple mayhem conviction. (Id. at 20, 23.) The court also corrected the sentencing error in an amended abstract of judgment. (Id. at 23-24.)

         On or around November 29, 2012, Petitioner filed a petition for review in the California Supreme Court, which was denied on February 14, 2013. (Lodgment No. 7, ECF No. 4-17; Lodgment 8, ECF No. 4-18.)

         B. HABEAS PETITIONS IN STATE COURT

         On June 2, 2013, Petitioner filed a petition for a writ of habeas corpus in the San Diego County Superior Court claiming ineffective assistance of trial and appellate counsel for failing to object and move to exclude the “hammer evidence” as inadmissible and prejudicial. (Lodgment No. 9, ECF No. 4-19.) Second, Petitioner argued that trial and appellate counsel were ineffective for failing to object to hearsay statements of a witness who saw him throw the hammer into a backyard, and failing to subpoena the witness that made the statements to allow Petitioner to confront him. (Id.) Lastly, Petitioner alleged that the cumulative effect of the errors during the trial denied him due process. (Id.) On July 22, 2013, the San Diego Superior Court denied the habeas petition on the merits. (Lodgment No. 10, ECF No. 4-20.)

         On August 22, 2013, Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal asserting the same claims raised in the San Diego Superior Court. (Lodgment No. 11, ECF No. 4-21.) On January 23, 2014, the appellate court denied the habeas petition on the merits. (Lodgment No. 14, ECF No. 4-24.)

         On January 9, 2014, Petitioner filed a second writ of habeas corpus in the California Court of Appeal challenging the trial court’s imposition of a fine. (Lodgment No. 15, ECF No. 4-25.) The state appellate court denied the petition, because the petition was untimely and did not set forth an exception to the procedural bar or allege good cause for the delay. (Lodgment No. 16, ECF No. 4-26.)

         On February 26, 2014, Petitioner filed two petitions for writ of habeas corpus in the California Supreme Court. (Lodgment No. 17, ECF No. 4-27; Lodgment No. 19, ECF No. 4-30.) One petition challenged the imposition of a fine [Case No. S216774]. (Lodgment No. 17, ECF No. 4-27.) The other petition alleged the same claims raised with the San Diego Superior Court and the Court of Appeal concerning two claims of ineffective assistance of counsel and cumulative error [Case No. S216775]. (Lodgment No. 19, ECF No. 4-30.) On April 30, 2014, the California Supreme Court denied the petition challenging the imposition of a fine with pinpoint citations to People v. Duvall, 9 Cal.4th 464, 474 (1995), and In re Dixon, 41 Cal. 2d 756, 759 (1953). (Lodgment No. 18, ECF No. 4-28.) On the same day, the California Supreme Court denied the second petition alleging two claims of ineffective assistance of counsel and cumulative error with a pinpoint citation to In re Clark, 5 Cal.4th 750, 767-69 (1993). (Lodgment No. 20, ECF No. 4-30.)

         C. HABEAS PETITION IN FEDERAL COURT

         On June 3, 2014, Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. (Petition, ECF No. 1.) Petitioner asserts the claims of ineffective assistance of counsel, cumulative harmless errors, and that erroneous admission of his confession violated his constitutional rights. (Id.) On July 29, 2014, Respondent filed an Answer. (Answer, ECF No. 4-1.) On June 19, 2015, the Honorable William V. Gallo filed a Report and Recommendation Denying Petition for Writ of Habeas Corpus (“R&R”) and Certificate of Appealability. (R&R, ECF No. 12.) On September 24, 2015, Petitioner filed Objections to Report and Recommendation and a Request for Certificate of Appealability. (Objections, ECF. No. 18.)

         FACTUAL BACKGROUND

         The Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 29, 35 (1992) (state court findings are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal’s opinion on Petitioner’s direct appeal, affirming in part and reversing in part the judgment of the trial court. (Lodgment No. 6; ECF No. 4-16.)

In mid-August 2009, Maria Gonzalez (Maria) and her teenage daughter Selina G. were awakened at approximately 4:00 a.m. by knocking at their front door. It was Christopher, the son of Maria’s former boyfriend Raymond Gonzalez (Ray). Christopher was upset after fighting with his father. Maria invited Christopher inside. About half an hour later, Maria’s son Robert Gonzalez (Robert) came home with victim Daniel Castillo (Daniel.)

Maria decided to walk Christopher back to his father’s house, which was only a few blocks away. Once back at his father’s house, Christopher and Ray had another fight and Christopher then left with Maria to return to Maria’s house. On the way back to Maria’s house, they saw some tools on the ground, including a hammer and a crowbar. Maria recalled commenting to Christopher about the tools as they walked.

After Maria and Christopher returned to Maria’s house, Robert, Selina, and Daniel left to get something to eat. Christopher stayed behind with Maria. Sometime after 6:00 am, Christopher and Daniel went to a convenience store to buy alcohol. Robert, Daniel, Selina and Christopher then watched a movie. At 6:30 a.m., Maria left for work. When she left, everyone appeared to be enjoying the movie.

Five minutes after Maria left, Selina went to her bedroom to sleep, leaving the three men alone in the living room. Christopher asked Daniel for a cigarette, then went outside. Robert went to his room and fell asleep, leaving Daniel alone in the living room.

A few minutes later, Selina returned to the living room after she heard noises outside. Recognizing that Christopher was gone, Selina unlocked the front door for Christopher and then returned to her bedroom. Inside her room, Selina heard someone outside opening the latch of the front gate. She went back to the living room and found Daniel looking out the window. Daniel told her that Christopher had just returned. As she returned to her room, Selina heard the sound of the front door opening.

About five minutes later, from inside her room Selina heard sounds in the living room that she described as similar to the noise her dogs make when they jump off the couch. When the noise continued, Selina went to the living room and found Christopher standing behind the couch with his arm behind his back. Christopher told Selina that Daniel was sleeping. Frightened, Selina returned to her room and locked the door. Selina first called her mother and then she called 9-1-1.

As Selina was speaking to the 9-1-1 operator, Christopher knocked on the door and asked to use the telephone. Selina told the 9-1-1 operator that Christopher was banging on the door, then he began shaking the doorknob. When the banging stopped, Selina opened her door slightly and saw Daniel in the living room. His face was covered in blood. When asked, Selina explained to the 9-1-1 operator that she thought Daniel had been hit by a weapon because “his head [was] all smashed, ” “his eye was “completely cut, ” and his temple looked as if it was “falling off.”

A witness saw Christopher dispose of a hammer while Christopher was running in a drainage ditch. Sheriff’s deputies recovered the hammer, which Maria later identified as the same hammer she and Christopher saw when out walking early in the morning. When the deputies arrested Christopher, he was sweating, breathing heavily and wearing only boxer shorts. ...