United States District Court, E.D. California
NARCISO T. MORALES, Petitioner,
WILLIAM MUNIZ, Warden, Respondent.
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
Court adopts the Statement of Facts in the Fifth DCA's
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
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
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
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
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
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. ...