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Morales v. Muniz

United States District Court, E.D. California

April 19, 2017

NARCISO T. MORALES, Petitioner,
v.
WILLIAM MUNIZ, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently serving a determinate sentence of 63 years and 4 months for his conviction of multiple counts of assault with a firearm on a peace officer and numerous weapon possession charges. In this petition, Petitioner claims the evidence was insufficient to support the convictions. As discussed below, the Court finds the claim to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         Petitioner was convicted in the Madera County Superior Court on August 23, 2013, of: five counts of assault with a firearm on a peace officer (Cal. Penal Code §§ 245(d)(1), 12022.5(a), 12022.53(b)); five counts of obstruction of an executive officer involving the personal use of a firearm (Cal. Penal Code §§ 69, 12022.5(a)); one count of possession of a firearm by a person previously convicted of a specified misdemeanor (Cal. Penal Code § 29805); two counts of possession of ammunition by a person prohibited from possessing a firearm (Cal. Penal Code § 30305(a); two counts of possession of an assault weapon (Cal. Penal Code § 30605); and one count of possession of shurikens (Cal. Penal Code § 22410). People v. Morales, No. F068205, 2015 WL 4141840, at *1 (Cal.Ct.App. 2015). Following a bifurcated court trial, defendant was found to have suffered a prior juvenile adjudication for a strike offense (Cal. Penal Code § 667(b)-(i)). Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on July 9, 2015. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was summarily denied on September 16, 2015. Id.

         On March 24, 2016, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1). Respondent filed an answer on June 8, 2016. (Doc. No. 20). Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

At approximately 2:30 a.m. on October 22, 2010, [N.3] Officer Gaona of the Madera Police Department was on patrol in a marked vehicle when he observed a red Toyota Corolla with no front license plate. The vehicle turned; Gaona noticed it also lacked a rear license plate. He activated his overhead light bar to initiate a traffic stop due to the Vehicle Code violations. The Toyota continued on for a little while, then yielded to the right side of the roadway.
[N.3] All dates in the statement of facts are from the year 2010.
Gaona got out of his vehicle and approached defendant, who was the driver and only occupant of the Toyota. [N.4] Defendant provided identification and the vehicle registration at Gaona's request, then Gaona relayed some of that information to dispatch via radio. He particularly wanted to make sure the vehicle identification number on the registration matched what was on the car's front dash.
[N.4] The entire incident was recorded by Gaona's in-car camera. The video recording was played for the jury.
Gaona observed a red metal pipe about two feet long and an inch and a half in diameter on the passenger side floorboard, with one end sticking out toward defendant. Gaona told defendant not to grab it and asked why he had it. Defendant said he found it in the roadway and wanted to use it for his weight bench. When Gaona asked how he was going to use it for a weight bench, defendant, who appeared to be searching for an answer, could not provide one.
Gaona, who was waiting for dispatch to get back to him with the requested information, grew cautious of defendant's actions. Defendant appeared to be very nervous and apprehensive about something. When he reached into the glove box to retrieve some paperwork, he leaned his left shoulder toward the right side of his body, then dropped his left hand toward his waist or the center console area. Out of concern for his own safety, Gaona directed defendant to put his hand on the steering wheel where Gaona could see it.
Defendant did as Gaona directed, but still appeared hesitant and nervous. Because of how defendant was acting, Gaona asked him to step out of the car due to safety concerns. Gaona directed defendant to face the V-shaped gap created by the open driver's door, but defendant tried to face Gaona. Gaona grabbed one of defendant's hands and guided him to face away from Gaona as defendant stepped out so defendant would not be in a position to lunge at the officer.
Gaona was able to get defendant to face the gap, then he grabbed both of defendant's hands and advised him that for officer's safety, he was going to conduct a pat search. Defendant said it was not necessary. Gaona said he was going to do it for safety purposes. At that point, Gaona had defendant's hands behind defendant's back, one in each of his own hands, and was putting them together. Defendant asked Gaona to release his hands so he could place the vehicle keys, which were in his left hand, in the car. Gaona, who was concerned defendant was trying to better position himself, told him just to drop the keys where they were at. Defendant dropped the keys, whereupon Gaona grabbed the fingers of both hands in Gaona's left hand and told defendant to spread his feet. Gaona then conducted a pat search with his right hand.
Gaona discovered a large K Bar knife through a belt loop on the right side of defendant's pants. [N.5] He directed defendant to leave it there and continued his search. As he started to search the left part of defendant's waist area, defendant pulled out of his grasp. Gaona immediately grabbed the knife with his right hand to make sure defendant did not try to pull it out, while with his left hand, he edged defendant toward the car and radioed for assistance. He told defendant to put his hands behind his back so Gaona could pat search him for officer safety, but defendant refused. He said he felt it was not necessary and he was not going to do it.
[N.5] Such a knife is issued by the United States Marine Corps. Its overall length is approximately 10 inches, with the blade six or seven inches long.
After a few minutes, Gaona saw two patrol cars heading his direction. He shined his flashlight at them to let them know his location. Defendant also looked in their direction, then lunged into the car. Gaona, who was still holding onto the knife, grabbed defendant and tried to yank him out. Defendant grabbed the steering wheel and clawed his way into the car. Worried defendant was reaching for something in the center console area that had concerned Gaona originally, Gaona grabbed hold of defendant and jumped into the car with him. Defendant landed across the front seats, then Gaona jumped on top and dropped his weight onto defendant's body and tried to reach for his hands, which were underneath defendant.
Gaona kept telling defendant to put his hands behind his back and trying to grab his arm to force it behind his back so he could handcuff defendant, but he was unsuccessful. When Officers Alva and Boehm arrived, Alva went through the front passenger-side door, while Boehm came through Gaona's side, the front driver's-side door. [N.6] Gaona told them defendant had a knife, whereupon Alva, who had been trying to get control of defendant's arm, began to strike defendant with her elbow in the head and neck area. If anything, it seemed like defendant started to fight harder. Boehm grabbed the knife, which was in a sheath on defendant's belt on his back, and tossed it out of the car.
[N.6] Officer Palazzola arrived shortly after Alva and Boehm. Officer Yang arrived at about the same time as Palazzola.
Gaona was trying to grab at defendant's hand from underneath. As Gaona inched his hand up defendant's wrist and onto his hand, he realized defendant had a revolver in his left hand. Gaona felt the gun with his own hand, and yelled to the other officers that defendant had a gun. [N.7] Shortly after, Palazzola heard defendant yell, in a very angry tone of voice, that he had a gun. [N.8]
[N.7] Because Gaona had been unable to complete the search of defendant's person, he could not tell whether the gun came from defendant's body or from inside the vehicle.
[N.8] Gaona did not hear this. Alva recalled defendant looking up at her with “a really crazy look, ” and saying, “I've got a fucking gun, ” before Gaona made the announcement. The look was one of desperation, like he was really fighting to hurt them, and the tone of voice was very angry and aggressive. Alva struck defendant over the head with her Taser, causing the Taser cartridge to pop off.
Boehm reached underneath defendant to try to help Gaona. He could feel that the gun was tight against defendant's abdomen, but the barrel was pointed toward Boehm's groin. When Boehm lost his grip on the gun, he started hitting defendant in the lower back, trying to do anything to get defendant to let go of the gun. Meanwhile, Yang entered the car through the rear driver's-side door and attempted to assist Boehm by reaching for defendant's arms. When Yang could not reach for defendant's arms due to the limited amount of room in the vehicle, he began punching and elbowing defendant's lower back, through the space between the bucket seats, in an unsuccessful attempt to get him to surrender.
Hearing defendant had a gun, Palazzola decided the best course of action would be to shoot him, because Palazzola believed all the officers' lives were in imminent danger. He put his gun close to defendant's back and told Gaona he was going to shoot, but Gaona told him not to, because his arms were underneath defendant. Palazzola then tased defendant in the back. He cycled the Taser twice, with each cycle lasting about five seconds. Although defendant grunted like he was in pain, he did not stop struggling or give up the gun. Palazzola then directed the other officers to begin hitting defendant. Palazzola went to the front passenger side and started kicking defendant in the face or head. Palazzola was in fear for his life. Alva also began kicking defendant in the head. Boehm started elbowing defendant in the lower back. Yang reentered the vehicle and began punching and elbowing defendant in the lower back again, but to no avail.
As Gaona was trying to remove the gun from defendant's hand, he felt defendant forcefully trying to keep it, and to maneuver the gun as it was underneath the two of them. When Alva was kicking defendant, Gaona felt defendant make a very forceful move of the gun in an upward direction, toward where Gaona's and defendant's heads and Alva were. Gaona kept telling defendant to let go of the gun and put his hands behind his back, but defendant did not respond or comply. Based on defendant's actions, Gaona felt defendant was trying to shoot Gaona or one of the other officers. Defendant was fighting to keep possession of the gun and also to maneuver it. [N.9]
[N.9] Gaona and Boehm described the movement of the gun with reference to the face of a clock. When Boehm first felt the gun, the barrel was pointing toward the driver's-side door, in the number 6 position. According to Gaona, the gun initially was pointing toward the number 3 position, which was toward the right side of Gaona's body. At the time defendant made the surge, Gaona felt the barrel move toward the number 2 position. Yang, who was in the rear driver's seat of the car, was in the number 3 position. Palazzola, who was in the rear passenger's seat, was between the number 1 and number 2 positions. Alva, who was at the front passenger-side door, was in about the number 12 position. Gaona's head was also pointing toward the number 12 position.
When the kicks to defendant's head were not effective in getting defendant to release the gun, Alva touch-tased defendant's neck. [N.10] Defendant yelled, at which point Gaona was able to pull the gun from his grasp. It was a Smith and Wesson .38-caliber revolver containing six bullets, meaning it was fully loaded. The gun subsequently was determined to be operable.
[N.10] When Palazzola used his Taser, the device shot two probes that were designed to stick into a person's body. In Alva's case, the cartridge that projected the probes had come off, allowing two metal prongs at the end of the Taser to emit an electrical discharge directly in contact with defendant's skin.
Defendant refused to comply with Gaona's orders to put his hands behind his back, and physically resisted Gaona's and Alva's attempts to gain control of his hands. Ultimately, Gaona performed an elbow strike on defendant's back, after which Gaona was able to handcuff defendant. Alva and Palazzola then pulled defendant out of the car and laid him on the ground, and Palazzola searched him. Palazzola found a round of .223-caliber ammunition in one of defendant's pants pockets. ...

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