United States District Court, N.D. California, Oakland Division
ORDER DENYING PETITION FOR HABEAS CORPUS
GONZALEZ ROGERS United States District Judge
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”); and (2) request
an instruction on a lesser-included firearm enhancement.
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.
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judgment of the trial court in an unpublished opinion and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
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 email@example.com 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
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
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
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
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
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
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
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
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