Ramirez v. Pfeiffer

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          Sheila K. Oberto. UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges four grounds for relief: (1) insufficient evidence to support his conviction on multiple counts of assault with a deadly weapon; (2) insufficient evidence to support his conviction of firing from a motor vehicle; (3) failure to instruct the jury that CALCRIM No. 370 does not apply to the gang enhancement; and (4) prosecutorial misconduct arising from violation of a court order concerning expert testimony. Respondent counters that sufficient evidence supported the convictions in grounds one and two, and that grounds three and four were procedurally defaulted. Having reviewed the record as a whole and applicable law, the undersigned recommends that the Court deny the petition.

         I. Factual Background^[1]

         At about 4:00 p.m. on June 23, 2008, six gunshots were fired into the Valdovinos family’s home at the corner of North Smith Road and Olive Avenue in Tipton, California. When the shots were fired, Raquel was in the kitchen cooking with her husband Jose and son Jesus. Raquel’s daughter Maria was nursing her baby in the living room while Maria’s daughter watched television. Maria’s sons were in the backyard with their uncles, Max and Juan Carlos. Jesus’ girlfriend, Salina, was in the garage, which had been converted to living space for her and Jesus.

         Three or four shots were fired in rapid succession, then more shots were fired after a pause. Individual shots hit Juan Carlos’ Camaro, Maria’s minivan, and the garage door. At least one bullet was found lodged inside the garage near where Salina had been resting. Additional gunshots marked the front wall of the house. Later, Tulare County Sheriff’s Deputy Bobby Saldana documented evidence of five bullet holes in the house and the vehicles parked in front of it. Saldana recovered no bullet casings.

         After hearing the gunshots, Juan Carlos ran to the backyard fence and saw a red car driving east on Olive Avenue at high speed. Maria encountered smoke as she went out the front door to gather her children. The entire Valdovinos family was in the front yard by the time sheriff’s officers arrived.

         Detective Jesse Cox, who had just finished an investigative interview nearby, heard six gunshots as he returned to his car. As Cox got into his car, Deputy Javier Guerrero pulled up in a marked vehicle and told Cox that he had just seen a red four-door Honda Accord speeding away from the area where the shots were fired. Three Hispanic men with shaved heads were inside. As the driver (later identified as Petitioner Juan Ramirez) ran a stop sign, the back seat passenger (later identified as co-defendant Noel Ambriz) leaned out the window and yelled at the house on the corner of North Smith Street and Olive Avenue (the Valdovinos home). Cox advised dispatch of the gunshots and went to the Valdovinos home. Guerrero broadcast a description of the fleeing car and drove off to try to find it.

         Meanwhile, three men in a reddish brown car matching Guerrero’s broadcast description sped by Sheriff’s Deputy Carl Bostai. Bostai made a u-turn, activated his siren, and when the driver failed to stop, pursued the car.

         As the car approached a residence on Road 136, it slowed down, and the passengers looked around. Noel Ambriz looked at Deputy Bostai while the front seat passenger (later identified as co-defendant Marco Ambriz) threw an object out of the front passenger window. Other deputies arrived and arrested Petitioner and Noel and Marco Ambriz. Bostai put paper bags over the three suspects’ hands to preserve any gunshot residue that might be present. Subsequent tests of all three suspects were negative for gunshot residue.

         Bostai searched the area where Marco Ambriz had thrown the object and found a .357 revolver in a pile of grass clippings. Inside the cylinder were six spent casings and no live ammunition. Law enforcement technicians dusted the gun but found no fingerprints on it. Department of Justice records indicated that the gun was stolen.

         Later that evening, Deputy Rodney Klassen interviewed Petitioner after he waived his Miranda^[2] rights. Petitioner admitted to being a Sureño gang member but denied having a gun or knowing anything about a shooting. He said he was aware that something was thrown from the car window while sheriff’s deputies were chasing him but denied knowing what had been thrown out.

         After Marco Ambriz waived his Miranda rights, Marco^[3] told Klassen that occupants of the Valdovinos house had shot one of his “homies” the week before. Marco acknowledged that Norteños “owned” all of North Smith Road and that Sureños would only go down that street to cause problems for Norteños. When Klassen asked Marco if he had a gun, Marco responded, “I don’t know.”

         Police towed and impounded the Honda, which belonged to Petitioner’s father. Testing the next day revealed gunshot residue on the outside of the front passenger door and the rear seat headliner.

         Department of Justice Senior Criminologist Nancy McCombs, a forensic scientist, testified as an expert witness. She examined three bullet fragments, a bullet, and the .357 revolver that had been recovered in this case. Although McCombs was unable to determine whether the fragments had been fired from the revolver, she concluded that the bullet had been fired from it.

         Max and Jesus Valdovinos associated with Norteño gang members. Max testified that Petitioner was a Sureño and that Norteños and Sureños were rivals. Max and Petitioner had a fistfight in September 2007. In February 2008, Max was involved in a fight at the local high school between Norteño and Sureño gang members that resulted in a student’s stabbing. Max cooperated in the investigation of the fight.

         Gang expert, Deputy Michael Yandell, testified about Norteños, Sureños, and their activities.

         II. Procedural History

         Petitioner and Marco and Noel^[4] Ambriz were charged with (1) shooting at an inhabited dwelling (Cal. Penal Code § 246); (2) shooting from a motor vehicle (Cal. Penal Code § 12034(c)); (3-10) eight counts of assault with a firearm (Cal. Penal Code § 245(a)(2)); and (11) receipt of stolen property (Cal. Penal Code § 496(a)). Alleged aggravating factors were that the crimes were committed for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)) and personal use of a firearm in the commission of the assault offenses. In August 2010, the three defendants were tried before a jury in Tulare County Superior Court. On August 31, 2010, the jury convicted all three defendants on all charges and found the gang enhancement to be true. The jury did not reach an agreement on the enhancement for personal use of a firearm.

         On November 23, 2010, the Superior Court sentenced all three defendants to a term of 15 years to life on count one, with a concurrent term for count 11. The sentences for counts two through ten were stayed pursuant to Cal. Penal Code § 654.

         Petitioner filed a direct appeal to the California Court of Appeal, which affirmed the judgment on April 6, 2012. The California Supreme Court denied review on June 27, 2012.

         On August 1, 2013, Petitioner filed a petition for writ of habeas corpus in this Court.

         III. Standard of Review

         A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because Petitioner filed it after April 24, 1996.

         Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.

         "By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).

         As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. To do so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9^th Cir. 1996).

         "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.

         IV. Due Process: Sufficiency of Facts to Support Convictions

         In the first two grounds for habeas relief, Petitioner alleges that his 14^th Amendment right to due process was violated because the facts adduced at trial were not sufficient to convict him of (1) multiple counts of assault with a deadly weapon or (2) firing from a motor vehicle. Respondent disagrees.

         A. Standard of Review

         To determine whether the evidence supporting a conviction is so insufficient that it violates the constitutional guarantee of due process of law, a court evaluating a habeas petition must carefully review the record to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Windham v. Merkle, 163 F.3d 1092, 1101 (9^th Cir. 1998). It must consider the evidence in the light most favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Jackson, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9^thCir. 1997).

         B. Assault with a Deadly Weapon

         1. Statutory Basis

         Petitioner was convicted of eight counts of assault with a firearm in violation of California Penal Code ...