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Bautista v. Spearman

United States District Court, N.D. California, Oakland Division

July 11, 2017

JOSE BAUTISTA, Petitioner,
MARION SPEARMAN, Warden, Respondent.


          YVONNE GONZALEZ ROGERS United States District Judge

         Now before the Court is petitioner Jose Bautista's amended petition for a writ of habeas corpus. (Dkt. No. 4, Petition.) The government answered on December 1, 2016, (Dkt. No. 24-1), and petitioner filed a traverse in reply on February 6, 2017. (Dkt. No. 27, Traverse.) Petitioner claims that his counsel rendered ineffective assistance. Specifically, petitioner claims that counsel failed to: (1) investigate, obtain an expert on, and move to exclude the prosecution's evidence on gunshot residue (“GSR”)[1]; and (2) request an instruction on a lesser-included firearm enhancement.

         Based thereon, petitioner seeks a writ of habeas corpus. Having carefully considered the petition and the papers submitted, and for the reasons stated below, the petition for such relief is Denied.

         I. Background

         On July 21, 2011, a Santa Clara County jury found petitioner Jose Bautista guilty of second degree robbery, attempted second degree robbery, and willful discharge of a firearm with gross negligence. (Dkt Nos. 8, 9, Court of Appeal Order at 1.) The jury found true the state's allegations that defendant personally used and intentionally discharged a firearm during the commission of the robbery and attempted robbery. Id. On May 23, 2013, the trial court sentenced petitioner to a term of twenty-two years in state prison. (Dkt. Nos. 24-4, Exh. A at 380; 24-7, Exh. D at 597-599.) On March 2, 2015, the California Court of Appeal affirmed the judgment of the trial court in an unpublished opinion and denied the habeas petition. (Court of Appeal Order at 1.) In addressing the petitioner's claims on appeal, the California Court of Appeal summarized the relevant facts as follows:

A. The Robbery and Firearm Discharge
At the end of May 2009, Bunlong Hong wanted to buy a used Honda or Acura car. He responded by email to a Craigslist advertisement of an Acura Integra. A person using the email address corresponded with him and provided a phone number with an 831 area code. The person said his name was Tran and that he needed to sell the Integra because he had “a baby on the way.”
Hong called the phone number. A female voice answered, but when Hong asked for Tran, the female said it was the wrong number. Hong called back later. This time, when he asked for Tran, the female said, “He'll have to give you a call back.” Hong later received a call back from the same phone number. A male spoke to him and they made plans to meet so Hong could purchase the Integra.
On May 31, 2009, Hong's coworker, Phong Tang, gave Hong a ride to San Jose. Upon arriving in San Jose, Hong called the phone number. A female answered again, telling Hong he would get a call back. The male called back a few minutes later. They set up a meeting place. Hong then went to the bank and withdrew cash.
Hong and Tang arrived at the designated meeting spot, in front of a house on Yerba Buena Avenue, at about 3:00 p.m. Seeing no one at the location, Hong called the phone number again. The male answered and said he would be there in a few minutes. Shortly thereafter, two individuals approached. Both were dressed inappropriately for the warm weather: they were in hooded sweatshirts, with the hoods pulled up over their heads. One of the individuals-later identified as defendant-wore a plain black sweatshirt. The other individual wore a tan sweatshirt with printing on it.
Defendant and his companion stood about five feet away from Hong and Tang. Defendant told Hong and Tang to get into their car. When Hong and Tang did not do so, defendant repeated his command. Tang then said, “We're not going to get in the car.” In response, defendant asked, “You think I'm playing?” Defendant then pulled a revolver out of the front pocket of his sweatshirt and fired a round into the air. He directed Hong and Tang towards the car. As Hong and Tang started to get into the car, defendant asked Tang for his wallet.
At that point, a neighbor came out of a nearby house and asked, “What's going on?” Defendant told Tang to “[h]urry up” and give him the wallet, which Tang did. Defendant and his companion left soon afterwards, driving away in a car located nearby, which appeared to be a Nissan Maxima.
B. 911 Call and Initial Descriptions
Hong called 911 following the incident, saying he had just been “mugged.” He described the Maxima as silver, tan, champagne, or gold colored. He described the two men as being in their early to mid 20's and Hispanic.
In the 911 call, Hong said the shooter had been wearing a black pull-over sweatshirt and a baseball cap. The shooter's baseball cap was red with a red bill; it looked like “a Cincinnati one.” The shooter was “heavyset”-between 240 and 250 pounds-and about six feet tall. He had “[l]ight fuzz” on his mustache area. The second person had been wearing a tan colored hoodie. The second person was also “big”-about 230 to 240 pounds.
When police responded to the site of the shooting and robbery, Hong provided the phone number that he had called to set up the meeting. The phone number belonged to Elisa Ramirez, who had a dating relationship with defendant.
Hong told a responding officer that the shooter had been a Hispanic male, about 18 to 20 years old, about six feet two inches tall, weighing about 240 pounds. The shooter wore a black hoodie and a red baseball cap with a “C” on it.
According to Hong, the second person was also a Hispanic male, also about 18 to 20 years old, about five feet 11 inches tall, weighing about 220 pounds. The officer's notes indicated that Hong said that the second person had also been wearing a black hoodie.
Tang told a responding officer that the shooter had been wearing a baseball cap, which was black with red on the underside of the bill. Both men had been wearing hooded sweatshirts with the hoods up. The shooter wore latex gloves and a black hooded sweatshirt. The shooter was about six feet to six feet one inch tall and weighed about 240 pounds. The shooter had a light goatee and light brown eyes.
According to Tang, the second person was about five feet 10 inches or five feet 11 inches, weighed about 230 pounds, and wore a gold or yellow colored hooded sweatshirt.
Tang was shown a photo lineup on the same day as the incident. He identified a photo of defendant, saying, “I think that's the guy who had the gun.”
C. Defendant's Arrest
San Jose Police Officers Gina Tibaldi and Lee Tassio went to defendant's residence within a few hours of the incident. Defendant and two men (his brothers) were outside, drinking beer, when the officers arrived. Defendant was wearing a black hooded pull-over sweatshirt and a red baseball cap with white lettering.
Due to the possibility that defendant had a gun, the officers took cover behind their patrol car doors and ordered the three men to show their hands and go down to the ground. The three men did not comply despite repeated commands. Defendant then threw his hat onto the ground and dove into a minivan, while his brothers “proned out” on the ground. Officer Tassio ordered defendant to come out of the minivan, and about 30 seconds later, defendant did so. Officer Tassio then placed defendant under arrest.
Police collected evidence from defendant's house that night. A computer found on the kitchen table contained photographs of a green or teal Acura. The photographs were the same ones in the Craigslist ad, and they had been last accessed by a user on May 28, 2009. The computer had also been accessed by a person using the email address
Defendant's mother owned a Nissan Maxima that was later located at defendant's residence. The police did not find a revolver or any items belonging to Hong or Tang at defendant's residence.
D. Gunshot Residue
At about 9:15 p.m. on the night of defendant's arrest, Officer Tassio performed a gunshot residue test on defendant's hands in an interview room at the police station. Officer Tassio wore latex gloves during the procedure, but he had not been wearing gloves when he handcuffed defendant.
Criminalist Melissa Hengoed analyzed the gunshot residue test kit obtained by Officer Tassio, and she examined defendant's sweatshirt for gunshot residue.
At trial, Hengoed explained that gunshot residue particles contain three elements: lead, barium, and antimony. The presence of individual lead, barium, and antimony particles can also indicate that a gun was fired. Although those individual elements can come from alternative sources other than a firearm, when they are combined with an actual gunshot residue particle it is more likely that they, too, came from a firearm.
If gunshot residue particles are found on someone's hand, it may indicate any of the following: (1) the person was in the proximity of a firearm; (2) the person discharged a firearm; (3) the person handled a firearm; or (4) the person was in contact with a surface that contained gunshot residue-in other words, there was a transfer of the gunshot residue to the person from something or someone else.
When a firearm discharges, gunshot residue spreads, on average, 14 feet downrange and two to three feet on either side. Gunshot residue is easily lost by a person's normal daily activity. Most gunshot residue is lost within two to three hours.
Defendant's sweatshirt contained individual antimony, lead, and barium particles on both sleeves and on the front pouch area. There were also individual antimony, lead, and barium particles on the sample taken from defendant's right hand. There was one gunshot residue particle (i.e., a particle ...

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