United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS [DKT. NO. 1]
Nita L. Stormes United States Magistrate Judge.
Steven Michael Diaz, proceeding pro se and in forma pauperis,
filed this petition for writ of habeas corpus (Petition)
alleging that his right to effective assistance of counsel
was violated when (1) appellate counsel failed to brief three
issues on appeal regarding the trial court's admission of
certain evidence; and (2) trial counsel failed to object to
admission of that same evidence. Petition, pp. 6a, 6f.
filed an answer, arguing that the first claim is unexhausted,
and that in any event both claims fail on the merits. Diaz
filed a traverse. For the following reasons, the court
RECOMMENDS that the district judge
DENY the habeas petition and dismiss it with
September 13 to October 7, 2013, there was a series of seven
robberies at gas stations throughout San Diego County in
which the perpetrator arrived and left the scene in an older
model black BMW. He wore a hooded sweater with a bandana over
the lower part of his face. On two occasions, he wore a
sweatshirt with an emblem on the back. Each time, the
perpetrator brandished a gun at the cashier or clerk and
demanded all the money from the register. On September 25,
the perpetrator was not wearing gloves. A surveillance camera
located above the cash register recorded the
perpetrator's tattooed hands as he removed the cash.
Diego Police Department Detective John Smith sent a photo of
the perpetrator's tattoos to law enforcement agencies and
received Diaz's name from his parole officer. Smith
obtained a copy of Diaz's tattoos and determined they
were identical to the tattoos recorded on September 25. On
October 9, 2013, police officers arrested Diaz outside his
mother's home as he was leaving with his girlfriend in
her black 2000 BMW 740-IL. Diaz's girlfriend said she
allowed Diaz to use her BMW while she was working.
searched Diaz's mother's home and found several
articles of clothing matching the clothing worn by the
perpetrator during the robberies. When detective Smith showed
photos of the perpetrator's tattoos to Diaz's mother,
Maryanne Bennetch, she sighed and said they looked like
pretrial hearing, defense counsel asked the court to limit
the detective's testimony about the parole agent's
identification of Diaz. The prosecutor planned to introduce
photos of Diaz's tattooed hands and the perpetrator's
tattooed hands in evidence but also wanted the officers to
testify about their investigations. The trial court said that
although the investigation was interesting, it was not part
of the People's case. Nevertheless, the court did not
want to invite speculation by the jurors if there was a gap
in chronology. The court ruled the detective could not
testify that a parole officer identified Diaz. Instead, the
detective could say he circulated a photo of the tattoos and
another law enforcement officer informed him that Diaz may
have similar tattoos. The prosecutor and defense counsel
agreed to the proposed limitation of the detective's
trial, victims and bystanders from each gas station
testified. One witness saw Diaz's face before Diaz pulled
a bandana over his mouth and nose, and identified him in
court. Several witnesses noticed the perpetrator's older
model black BMW. One witness identified it as a 740 series
prosecution introduced surveillance videos from all but one
of the gas station robberies. Deputy Sheriff Nikolas
Katrantzis testified he secured the surveillance video at an
ARCO gas station in Spring Valley but the video had been lost
due to human error. The prosecutor asked Katrantzis,
“What did you see in the video?” Without
objection, Katrantzis said the video showed a person exiting
a black BMW, entering the store, pointing a gun at the clerk,
taking money out of the cash register, and leaving the store.
Smith testified about his investigation into the gas station
robberies, his identification and arrest of Diaz, and
Bennetch's identification of Diaz's tattoos and
clothing. Bennetch denied making those statements to Smith.
Smith and Stan Schwarz testified it was unusual to have a BMW
involved in a robbery. Over objection, Detective Smith said
to his knowledge, there had not been any other robberies in
San Diego County involving a 7 series BMW in the year
following Diaz's arrest.
the close of evidence, the trial court said several of the
officers had testified about robbery patterns and asked
whether the defense wanted an expert opinion instruction.
Defense counsel said the police did not testify as experts.
She did not want too much weight given to their testimony.
The trial court said the expert witness instruction was a
defense-friendly instruction required by statute to address
that issue. (§ 1127, sub. (b).) Counsel withdrew her
objection to the instruction.
the verdict, in a bifurcated proceeding, Diaz admitted he was
convicted for robbery in 2008. This count was alleged both as
a strike and a prison prior. The information also alleged a
second prison prior for aggravated assault with a deadly
weapon on an inmate. Diaz was convicted and sentenced to a
consecutive second term. Diaz admitted the prison assault.
sentencing, Diaz filed a motion to dismiss the strike under
section 1385 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 530 (Romero). The court
denied the motion, stating that although the previous robbery
was relatively minor, the nature and circumstances of the
current offenses were extreme. In addition, Diaz committed
the current offenses while he was on parole. The trial court
also determined the consecutive sentence for the prison
assault was a second prison prior under People v.
Walkkein (1993) 14 Cal.App.4th 1401, 1409-1411.
trial court sentenced Diaz to 29 years in prison, imposing
the upper term of five years on count 1, doubled to 10 years
for the prior strike; the midterm of one year on counts 2
through 7, each doubled for the strike, for a total of 12
years; five years on the 2008 robbery; and one year for each
prison prior, for a total of two years. The trial court
imposed fines, fees and restitution, and credited Diaz with