United States District Court, E.D. California
ORDER AND FINDINGS AND
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding with a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He
challenges a judgment of conviction entered against him on
May 20, 2011, in the Sacramento County Superior Court (No.
09F06445) on three counts of second degree robbery and one
count of false imprisonment, with findings that he personally
used a firearm. Petitioner seeks federal habeas relief on the
grounds that (1) the trial court's failure to declare a
mistrial deprived him of his right to a fair trial, and (2)
the trial court erred by imposing a consecutive sentence on
counts three and four. Upon careful consideration of the record
and the applicable law, the undersigned recommends that
petitioner's application for habeas corpus relief be
unpublished opinion affirming petitioner's judgment of
conviction, the California Court of Appeal for the Third
Appellate District provided the following factual summary:
and Antonio Howard spent the night of August 25, 2009, at the
apartment of defendant Fullmore's sister, Nycquia
Fullmore. At the time, Nycquia and defendant Nesbit were
dating. Howard is the half brother of three of Nycquia's
children. Although not actually related, Fullmore and Howard
were close and referred to each other as
apartment complex was located next to a liquor store and a
Payday Loans. A Chevron gas station was located across the
street. A Round Table pizza was also located nearby.
11:00 a.m. the next morning, on August 26, Nycquia and Nesbit
showered together. After showering, Nycquia asked Nesbit to
go to the liquor store to get her some candy. Nesbit left
alone but returned a few minutes later because he needed more
money. Nesbit and Fullmore then left the apartment together.
A short time later, Howard left the apartment to catch up to
Nesbit and Fullmore.
left the apartment, Nesbit was wearing a brown and white
checkered shirt and reddish jeans. Fullmore was wearing a
white shirt and jeans.
three men returned to the apartment about 10 minutes later;
although Nycquia testified her time estimates the day of the
robberies were not absolutely precise. Upon their return,
defendants and Howard watched television. Later, Nycquia
walked outside to the mailboxes to collect the mail, which
was usually delivered to the apartment complex between 11:00
or 11:15 a.m. While outside Nycquia saw several police
officers questioning people in the apartment complex. Nycquia
called Nesbit, who was still inside the apartment, and told
him about the police. Nesbit seemed agitated over the phone.
A few minutes later, the police knocked on Nycquia's
apartment door to investigate two robberies that occurred at
the Payday Loans and Chevron earlier that day.
Count Two-Payday Loans Robbery
approximately 11:20 a.m., M.W. was walking to work at the
Round Table near the apartment complex. Before going to work,
M.W. stopped at the Payday Loans to cash a money order.
approached the Payday Loans, he saw two men standing beside a
garbage can. The taller man called out, asking M.W. to come
over to where they were standing. M.W. declined. The taller
man followed him into the Payday Loans and stood looking over
his shoulder before leaving. After cashing the money order,
M.W. walked out of the building. Once outside, the taller man
grabbed his arm while the shorter man pulled a silver gun
with a black handle from the right front pocket of his jeans,
shoved it in M.W.'s ribs, and said, “If you move,
I'm going to shoot you.” The shorter man grabbed
between $60 and $80 from M.W.'s pocket. The shorter man
then walked away and the taller man followed a few seconds
called police to report the incident. He described the man
with the gun as a black man approximately five-foot-six or
five-foot-seven, weighing about 150 to 160 pounds. He had
short hair, hazel eyes, and was wearing a red shirt and a
white shirt and blue jeans. M.W. described the taller
assailant as a black man approximately five-foot-ten to six
feet tall and weighing between 140 to 150 pounds. The taller
man had a mustache, wore a brown shirt and had dread locks in
his hair, which M.W. later clarified meant braids. M.W.
described the gun as a silver and black .32-caliber revolver.
interviewing M.W. around 11:40 a.m. that morning, the officer
heard a dispatch report about a second robbery that had just
occurred at the Chevron. The suspects were two black males
generally fitting M.W.'s description of the two men who
accosted him at the Payday Loans moments earlier.
Count Three-Chevron Robbery
Fullmore does not challenge his conviction for the count
three robbery of D.R. at the Chevron, and Nesbit challenges
his conviction only to the extent that insufficient evidence
shows he aided and abetted Fullmore in the robbery, the facts
regarding count three are recounted in the light most
favorable to the judgment. (People v. Snow (2003) 30
Cal.4th 43, 66.)
approximately 11:30 a.m. that day, D.R. was at the Chevron
gas station across the street from the Payday Loans
purchasing some items in the convenience store. D.R. walked
outside to her car where Fullmore approached her. While D.R.
sat in her car, Fullmore stood between the door and the car
to prevent D.R. from closing the door. Fullmore demanded
D.R.'s money and pulled up his shirt to reveal a silver
gun in the right front pocket of his jeans.
rifling through her purse and locating only loose change,
Fullmore ordered D.R. into the convenience store to withdraw
money from an ATM machine. Nesbit followed them inside. Once
inside, Fullmore stood beside D.R. while she withdrew $200
and Nesbit talked to the cashier. Fullmore took the money
directly from the machine and left. Nesbit immediately
followed Fullmore out the door. Before leaving, either
Fullmore or Nesbit told D.R. not to call police.
officers arrived a short time later, D.R. said she could not
describe the men very well because she did not look too
closely at their faces since she was scared. She did say,
however, that the man with the gun was black, 18 to 20 years
old, five-foot-six to five-foot-ten with curly hair and that
he was wearing a white shirt and dark jeans. She said the gun
was silver and that the man had light brown eyes.
video taken inside the Chevron store shows D.R. in the store
purchasing items at 11:38 a.m. The video also shows Fullmore,
Nesbit, and Howard in the store moments earlier. Both
Fullmore and Howard are wearing white shirts; Nesbit is
wearing a brown and white checkered shirt.
minutes later, the surveillance video shows D.R. back in the
store at the ATM machine with Fullmore. The surveillance
footage also shows Nesbit talking to the clerk while D.R. and
Fullmore were at the ATM machine. Nesbit exits the Chevron
store almost immediately after Fullmore takes the money from
the ATM machine and leaves. The surveillance video does not
show Howard in the store at that time.
was no surveillance video showing the events at the Payday
its proximity to both robberies, police searched the
apartment complex where Nycquia lived and where defendants
and Howard had stayed the previous night. The apartment
manager directed officers to Nycquia's apartment.
police knocked and announced their presence at Nycquia's
apartment but no one answered. Police stationed at the rear
of the apartment saw what appeared to be a black man's
hand frantically trying to open a back window through the
finally walked over from the mailboxes where she had been
observing the police activity and gave officers a key to the
apartment. She told officers that Fullmore, Nesbit, and
Howard were inside, but only Nesbit and Howard came out once
the door was opened. Fullmore was gone.
Howard left the apartment, he had long hair pulled back in a
pony tail. Howard was approximately six feet tall and weighed
over 200 pounds. Nesbit had a mustache, curly hair, and was
wearing a blue basketball jersey. Nesbit stood six feet tall
and weighed about 195 pounds.
conducted separate field show ups for both victims with
Nesbit and Howard. After commenting the men looked like they
had changed their hair or clothes, M.W. identified Nesbit as
the taller assailant and Howard as the gunman. D.R. did not
identify either man.
was arrested and gave a statement to police placing most of
the blame on Fullmore for the robberies. Police subsequently
determined Howard was not involved and he was released from
searching the apartment, the police found a brown and white
checkered shirt. The police also found a silver and black .32
revolver loaded with four live rounds, stuffed in a sock, and
hidden in the bedroom closet under some towels. Although she
later denied it at trial, the day of the robberies Nycquia