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Diaz v. W.L. Montgomery

United States District Court, S.D. California

June 22, 2017

Steven Michael Diaz, Petitioner,
v.
W.L. Montgomery, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [DKT. NO. 1]

          Hon. Nita L. Stormes United States Magistrate Judge.

         Petitioner 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.

         Respondent 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 prejudice.

         I. BACKGROUND[1]

         A. Relevant Facts.

         From 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.

         San 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.

         Officers 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 Diaz's tattoos.

         At a 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 testimony.

         At 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 BMW.

         The 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.

         Detective 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.

         Detectives 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.

         After 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.

         After 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.

         At 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.

         The 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 custody credits.

         B. Proced ...


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