United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
K. Oberto. UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
that evening, Deputy Rodney Klassen interviewed Petitioner
after he waived his Miranda 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.
Marco Ambriz waived his Miranda rights,
Marco 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.”
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.
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
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.
expert, Deputy Michael Yandell, testified about
Norteños, Sureños, and their activities.
and Marco and Noel 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.
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 §
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.
August 1, 2013, Petitioner filed a petition for writ of
habeas corpus in this Court.
Standard of Review
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.
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
(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;
(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.
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).
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
(9th Cir. 1996).
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.
Due Process: Sufficiency of Facts to Support
first two grounds for habeas relief, Petitioner alleges that
his 14th 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.
Standard of Review
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
(9th 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
Assault with a Deadly Weapon
was convicted of eight counts of assault with a firearm in
violation of California Penal Code ...