United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
is currently serving an indeterminate sentence of 96
years-to-life for convictions of carjacking, assault with a
firearm, possession of a firearm and ammunition by a
convicted felon, and evading a police officer. He has filed
the instant habeas action claiming juror misconduct and bias.
As discussed below, the Court finds that the state court
rejection of his claim was not contrary to or an unreasonable
application of clearly established Supreme Court precedent
and recommends the petition be DENIED.
8, 2013, in the Fresno County Superior Court, Petitioner was
found guilty of: two counts of carjacking (Cal. Penal Code
§ 215(a)); assault with a firearm (Cal. Penal Code
§ 245(a)(2)); possession of a firearm by a felon (Cal.
Penal Code § 12021(a)(1)); possession of ammunition by a
felon (Cal. Penal Code § 12316(b)(1)); and felony
evasion of a peace officer (Cal. Vehicle Code §
2800.2(a)). People v. Ramirez, No. F067605, 2015 WL
970198, at *1 (Cal.Ct.App. Mar. 3, 2015). Special allegations
that Petitioner used a gun in the commission of both
carjackings and the assault (Cal. Penal Code §§
12022.53(b), 12022.5(a)) and that Petitioner discharged a
firearm during the commission of the offense (Cal. Penal Code
§ 12022.53(c)) were found true. Id. Special
allegations that Petitioner had two prior serious felony
convictions pursuant to the California's three strikes
law (Cal. Penal Code §§ 667(b)-(i),
1170.12(a)-(d)), qualified for a prior serious felony
enhancement (Cal. Penal Code § 667(a)), and qualified
for a prior prison term enhancement (Cal. Penal Code §
667.5(b)) were found true. Id.
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). Id. The appeal
was denied in a reasoned opinion on March 3, 2015.
Id. He then filed a petition for review in the
California Supreme Court, and the petition was denied on June
10, 2015. (LD 4, 5.) Petitioner also filed a habeas
petition in the California Supreme Court. (LD 6.)
13, 2015, Petitioner filed a federal petition for writ of
habeas corpus in this Court. (Doc. No. 1.) On September 16,
2016, the Court dismissed all but the sixth claim as
unexhausted. (Doc. No. 21.) Respondent filed an answer on
November 14, 2016. (Doc. No. 23.) Petitioner did not file a
Court adopts the Statement of Facts in the Fifth DCA's
On March 3, 2011, [FN2] Lazaro Cantu met Christine Northrup,
a friend and coworker, in Fresno's Tower District for an
Art Hop event. They then went to a Thai restaurant on Olive
Avenue for dinner about 10:00 p.m. The two arrived in
separate cars. Cantu drove his mother's car, a 2005 gray
Toyota Camry, which was parked in a different location than
[FN2] Unless otherwise noted, all date references are to the
Cantu walked with Northrup back to his car and was placing
leftover food in the backseat when Northrup motioned to him
that someone was coming toward them. When Cantu looked up,
appellant approached him, pointed a gun at Cantu's
abdomen, and said he was taking the car. Cantu got scared and
reacted by trying to push the gun down and away from his
body. Appellant pulled back and struggled with Cantu over
control of the gun. The two men went up against a fence.
Appellant bit Cantu's arm until Cantu let go of the gun.
Appellant threw Cantu to the ground, fell to the ground
himself, and the two men struggled. Both men had hold of the
gun, but Cantu held only the barrel, not the trigger.
Cantu was pushing or holding the gun above his head when he
heard it fire a round. With the gun directly in his face,
Cantu heard a “snap” sound. Northrup heard a
round go off and also heard a bullet spark, or ricochet, off
the street. Northrup heard a second “click”
noise, but no bullet was fired from the gun. After the
misfire, appellant told Cantu something to the effect that it
should have been Cantu's head. With the gun pointed at
his face, Cantu held up his hands and asked appellant to calm
down. Appellant demanded the car keys and told Cantu to toss
them over to him. Cantu tossed the keys to appellant, Cantu
and Northrup ran away, and appellant drove away in the Camry.
Cantu clearly saw appellant's face because there was a
streetlight where he was assaulted. Cantu saw tattoos on
appellant, especially one on the left side of appellant's
After looking at a first photo lineup, Cantu did not see
appellant in any of the photographs. In a second photo
lineup, Cantu was able to identify appellant.
Jesus Guerrero was at a coin-operated car wash cleaning his
1993 blue/green Honda Civic on March 12. As Guerrero was
about to finish, appellant walked up and pointed a gun at
Guerrero. Appellant demanded the keys to the Honda. Guerrero
told him the keys were in the car. Appellant motioned for
Guerrero to leave and then drove away in the Honda. Guerrero
was able to identify appellant in a photo lineup because he
recognized appellant's eyes.
Guerrero ran to a nearby Carl's Jr. restaurant and had
someone call 911. Police Officer Ryan Stockdale responded to
the car wash and found a light-colored Toyota Camry that
appellant reportedly left at the scene. When Stockdale ran
the license plate number of the Camry, he learned it had been
stolen in the Cantu carjacking.
Police tracked appellant using Guerrero's cell phone,
which was still in the Honda. Officers found the Honda
parked, set up a loose surveillance, and waited until
appellant got back into the vehicle and started driving it.
Officers began to move in on the Honda. When an officer
activated his forward solid red light, flashing front lights,
and siren, appellant accelerated away rather than pulling
Appellant was driving fast and recklessly through town with
patrol units in hot pursuit until officers attempted to
immobilize the Honda by ramming into it. Although the impact
caused the Honda to spin out, appellant again accelerated the
car and continued to flee. Appellant eventually drove the
Honda into a cul-de-sac and crashed it into a fence. Two
officers pursued appellant on foot. Appellant disposed of his
gun during the chase but it was later recovered.
Appellant was eventually apprehended. Officers found a gray
cloth bag containing seven live rounds of .22-caliber
ammunition, a Toyota key and key fob, paperwork from a car
dealership with Cantu's name and address on it, and a
piece of paper with Cantu's name on it that also had
Officer Lisa Maldonado testified that she assisted in the
investigation of the March 3 carjacking. Northrup gave a
general account of appellant approaching them, demanding the
keys to Cantu's car, and then pulling out a gun and
pointing it at Cantu. Northrup told Maldonado that the
assailant fired the gun twice and she believed the assailant
was trying to scare Cantu into giving up his car keys.
Maldonado canvassed the area for shell casings and looked for
strike marks on the street where the bullet may have hit, but