United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING
PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING IN PART
PETITIONER’S REQUEST FOR CERTIFICATE OF
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
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.
BENCH TRIAL AND DIRECT APPEAL IN STATE COURT
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; 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
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.)
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.)
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.)
HABEAS PETITIONS IN STATE COURT
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.)
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.)
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.)
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.)
HABEAS PETITION IN FEDERAL COURT
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.
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
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