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Olivera-Beritan v. Asuncion

United States District Court, S.D. California

July 24, 2017

JOSE OLIVERA-BERITAN, Petitioner,
v.
DEBRA ASUNCION, Warden, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: (1) DENYING MOTION FOR AN EVIDENTIARY HEARING AND FOR APPOINTMENT OF COUNSEL, and (2) DENYING PETITION FOR A WRIT OF HABEAS CORPUS

          PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE

         Jose Olivera-Beritan (“Petitioner”) is a state prisoner proceeding pro se with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He challenges his San Diego Superior Court convictions for three counts of first degree murder, two counts of kidnapping for ransom, one count of kidnapping, one count of attempted kidnapping, and one count of conspiracy to commit kidnapping for ransom. (Pet. at 1-3.)[1] The jury returned true findings on three murder special circumstances, as well as firearm use, bodily injury and gang enhancements, and Petitioner was sentenced to five consecutive terms of life without the possibility of parole, plus consecutive terms of 25 years to life and 19 years. (Id.) He claims his federal constitutional rights were violated because there is insufficient evidence apart from uncorroborated accomplice testimony to support all but two of his convictions (claim one); he is not guilty of two murders under the post-conviction decision in People v. Chiu, 59 Cal.4th 155, 167 (2014) (holding that “a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine” of aider and abettor liability) (claim two); the admission of hearsay testimony of a statement by his co-defendant violated his right to confrontation (claim three); there was purposeful racial discrimination in jury selection which appellate counsel failed to raise on appeal (claim four); his role in the murders is not sufficiently major to support a sentence of life without the possibility of parole (claim five); he was prejudiced by the denial of his motions for dual juries and severance of his trial from his co-defendant, and he received ineffective assistance of counsel by trial counsel's failure to seek severance of the counts against him and appellate counsel's failure to raise those claims on appeal (claim six); the trial court erred in its evidentiary rulings and discovery orders regarding the gang enhancement evidence (claim seven); the trial court imposed a restitution fine without a determination of his ability to pay, and he received ineffective assistance of trial and appellate counsel by their failure to challenge the fine (claim eight); and his state court habeas petitions were denied on the pretext that he failed to present a prima facie case for relief (claim nine). (Id. at 9-70.)

         Respondent has filed an Answer and lodged portions of the state court record. (ECF Nos. 10-11.) Respondent argues that claims one, three, six, seven, eight and nine do not present federal issues, and the state court adjudication of the other claims is not contrary to, and does not involve an unreasonable application of, clearly established federal law. (Memorandum of Points and Authorities in Support of Answer [“Ans. Mem.”] at 36-59.)

         Petitioner has filed a Traverse. (ECF No. 20.) He argues that: (a) each of his claims presents federal issues, (b) Respondent has lodged and relied on jury voir dire transcripts regarding claim four which were not before the state court, and this Court should either ignore them, hold an evidentiary hearing, or hold the Petition in abeyance while he returns to state court with those transcripts, and (c) new evidence that a cooperating accomplice witness admitted he committed perjury at trial, which was disclosed by the prosecution after completion of his appeal and state post-conviction review, should be considered in support of his claims, or the Court should hold the Petition in abeyance while he returns to state court with the new evidence. (Traverse at 7-26.) He has also filed a Motion for an evidentiary hearing and for the appointment of counsel. (ECF No. 16.)

         For the following reasons, the Court finds that the appointment of counsel, an evidentiary hearing, or a stay and abeyance are neither necessary nor warranted. The Court also finds that federal habeas relief is unavailable because the state court adjudication of Petitioner's claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. The Court recommends denial of the Motion for an evidentiary hearing and appointment of counsel, and denial of the Petition.

         I. PROCEDURAL BACKGROUND

         On August 6, 2009, a 22-count Indictment was filed in the San Diego County Superior Court naming 17 defendants, including Petitioner who was charged in 9 counts. (Lodgment No. 3, Clerk's Transcript [“CT”] at 1-36.) Eight defendants appeared in the superior court, with the others remaining at large. (Lodgment No. 1, Reporter's Tr. [“RT”] at 1-4.) Of those eight defendants, two (Guillermo Moreno-Garcia and his younger half-brother Carlos Pena) entered into cooperation agreements and testified at trial, the District Attorney anticipated seeking the death penalty against four (Jorge Rojas Lopez, Jesus Lopez Becaerra, Edgar Frausto-Lopez and Jorge Salvador Moreno), leaving Petitioner and David Valencia to be the first to go to trial, and they were tried together. (RT 285-86.) The counts were renumbered and Petitioner was charged with attempted kidnapping of Arturo Martinez-Barrera in violation of California Penal Code §§ 207(a) and 664 (count 1); robbery of Ivan Lozano, Jr. in violation of Penal Code § 211 (count 2); murder of Ivan Lozano, Jr. in violation of Penal Code § 187(a) (count 3); kidnap for ransom of Cesar Uribe in violation of Penal Code § 209(a) (count 4); murder of Cesar Uribe in violation of Penal Code § 187(a) (count 5); kidnap for ransom of Marc Anthony Leon in violation of Penal Code § 209(a) (count 6); murder of Marc Anthony Leon in violation of Penal Code § 187(a) (count 7); conspiracy to kidnap for ransom Eduardo Gonzalez-Tostado in violation of Penal Code §§ 182(a) and 209(a) (count 8); and kidnap for ransom of Eduardo Gonzalez-Tostado in violation of Penal Code § 209(a) (count 9). (CT 626-49.) David Valencia pled guilty to counts 8-9 and was only charged in counts 4-7. (CT 626-49, 832-34.) Special circumstance allegations as to the Lozano murder alleged it was committed during the commission or attempted commission of a robbery, and as to all murders that they: (1) were committed during the commission or attempted commission of kidnapping, (2) involved the infliction of torture, (3) were committed while the defendants were active participants in a criminal street gang, and (4) involved more than one murder. (Id.) As to all other counts the Indictment alleged they were committed for the benefit of a criminal street gang within the meaning of Penal Code § 186.22(b)(1), alleged with respect to counts 1, 8 and 9 that at least one principal was armed with a firearm within the meaning of Penal Code § 12022.52(d)&(e)(1), and alleged with respect to counts 4, 6 and 9 that the victim suffered bodily harm within the meaning of Penal Code § 209(a). (Id.)

         On May 16, 2012, a jury found Petitioner and Valencia not guilty of robbery of Lozano and not guilty of the lesser included offense of grand theft (count 2), not guilty of kidnapping Leon for ransom but guilty of the lesser included offense of kidnap of Leon (count 6), and guilty on all remaining counts. (CT 1509-56.) The jury returned not true findings on the special circumstances of torture and robbery, but returned true findings on all remaining allegations, including the special circumstances that the murders were committed during the course of a kidnapping, were carried out to further the activities of a criminal street gang, and involved more than one murder. (Id.) On September 28, 2012, Petitioner was sentenced to five consecutive terms of life without the possibility of parole, plus consecutive terms of 25 years to life and 19 years, along with the imposition of $714 in court fees and $2, 467.71 in restitution fines. (CT 1574-75.)

         Petitioner appealed, raising claim one presented here. (Lodgment Nos. 4-8.) The appeal was consolidated with the appeal of his co-defendant Valencia, and on September 10, 2014, the appellate court affirmed in all respects, with the exception of directing the abstract of judgment be modified. (Lodgment No. 12.) Petitioner filed a petition for review in the state supreme court presenting claim one raised here. (Lodgment No. 13.) His petition was consolidated with Valencia's petition for review, and they were summarily denied on November 18, 2014. (Lodgment No. 15.)

         On February 18, 2016, Petitioner filed a habeas petition in the superior court raising the remaining claims presented here. (Lodgment No. 16.) That petition was denied on March 25, 2016, on the basis that Petitioner had not stated a prima facie claim for relief, and, as to five of the claims, on the basis they were required to have been raised on direct appeal. (Lodgment No. 17.) His request for reconsideration, which was accompanied by additional documentary support, was denied. (Lodgment Nos. 18-19.) He presented the same claims with the additional documentary support to the appellate court in a habeas petition filed on May 27, 2016. (Lodgment No. 20.) The state appellate court addressed the merits of the claims and denied the petition on June 8, 2016. (Lodgment No. 21.) Petitioner filed a habeas petition in the state supreme court on August 1, 2016, presenting the same claims, which was summarily denied on October 12, 2016. (Lodgment Nos. 22-27.) He filed the instant federal Petition on October 24, 2016.[2]

         11. TRIAL PROCEEDINGS

         Motions to sever the trials of Petitioner and Valencia and for dual juries were denied. (RT 413-14, 475-76; CT 323-62.) Defense counsel made two Batson-Wheeler[3] motions during jury selection after the prosecutor excused four African-American jurors. (RT 639- 40.) The motions were denied after the trial judge found there was no prima facie showing of discriminatory animus. (RT 640.)

         James Bird, a Federal Bureau of Investigation (FBI) Agent, testified as an expert witness. (RT 880-81.) He said that in 2006 he joined a task force assigned to address a serious problem with border-related kidnappings in the San Diego region. (Id.) Because crime in Tijuana, Mexico is controlled by a drug cartel, drug-related kidnappings in the cross-border area have always occurred, but Agent Bird said there was a dramatic change around 2005 when the cartels became heavily involved in kidnapping. (RT 896, 901-05.) When a kidnapping involves drug dealers, as opposed to ordinary citizens, it is much more likely the hostage will be killed for reasons related to the drug trade, such as retribution or to send a message to drug dealers, and such kidnappings are dramatically underreported due to the culture of fear of retaliation created by the cartels. (RT 897-904.)

         Agent Bird said that since about 1980, the Arellano Felix Organization (“AFO”) has been the drug cartel in control of the area of Mexico just south of San Diego, and although it was still the dominant power at the time he testified in 2012, it had been significantly weakened by recent arrests and attacks from the Sinaloa cartel. (RT 905.) The cartels are organized with a leader surrounded by family and close associates they have known for a very long time. (RT 906.) Immediately below that level are lieutenants who run different cells, and the cells are made up of crews of soldiers who are not treated or paid well, and who perform the undesirable jobs on the lowest level of the cartel. (RT 906-07.) The business of the cartels is making money, which they do by trafficking in drugs, accepting payments from people who want to be involved in criminal activity, laundering money, corrupting officials, and kidnapping for ransom, often organizing cells to specialize in one area. (RT 907-10.)

         A typical kidnapping cell is composed of individuals with segregated roles who did not know each other, such as a spotter to identify a potential victim, people to grab the victim, people at different safe houses to watch the victim, people to rent the safe houses, and someone to pick up the ransom. (RT 910-13.) The ordinary FBI strategy of trying to wait out the kidnappers in the hope they would tire of holding the hostage does not work with the cartels because they have unlimited resources, along with several rented safe houses staffed with poorly paid guards allowing them to move their victims. (RT 3923-24.) After a cell identifies a target and obtains permission from higher up in the cartel, they send people impersonating police dressed like a SWAT team into the person's home or place of business to abduct them, or pick a choke-off point on a route surveillance has shown the victim usually takes and perform a traffic stop while impersonating police. (RT 915-17.) The victim is blindfolded, restrained with duct tape or handcuffs, interrogated, and kept at one or more safe houses where they are fed poorly and sporadically, beaten, and left at the whims of low-level, uneducated, drug-using guards. (RT 917-21.) In almost every case the first call to the family involves a demand for a large amount of money, a warning not to call the police, and an assurance the kidnappers would call back. (RT 3915.) The kidnappers would call every few days and check on how much money the family was able to raise, until they were satisfied it was enough, and then arrange for delivery of the ransom. (RT 3916.) Upon release the victim would be forced to shower and be given new clothes to minimize forensic evidence. (RT 3924-25.) Agent Bird said it is not uncommon for cartel kidnappers to use Taser guns, or for the cartels to dispose of bodies by dissolving them in large barrels of acid and lye. (RT 3926-31.)

         Lilia Leon testified that her son Marc Leon failed to come home from work on May 3, 2007, and did not answer his cell phone thereafter. (RT 960-71.) When he failed to call her on Mother's Day in Mexico, Thursday, May 10, she knew something was very wrong. (RT 972.) Marc Leon was friends with Cesar Uribe, and Uribe was friends with a man named Tony, so Lilia paid Tony a visit on May 11, and Tony told her Leon and Uribe had been kidnapped. (RT 972-75.) Lilia said that her family does not have much money and they were never contacted with a ransom demand. (RT 979-81.)

         Veronica Gamez testified that she had a common law marriage to Cesar Uribe, and they were together for thirteen years before his disappearance on May 3, 2007. (RT 989-92.) She knew Uribe trafficked marijuana but they never discussed his business, and she did not know if he was a member of a cartel. (RT 992-1000.) She and Uribe met and became friends with David Valencia (Petitioner's co-defendant) and his wife in 2000, and Uribe worked with Valencia trafficking marijuana for the next several years. (RT 1000-06.) The business relationship between Uribe and Valencia ended in 2004, although they remained friends, and Uribe continued selling marijuana without Valencia. (RT 1007-10.) Uribe then began working with Tony Sanchez, who she knew as Cap, and Uribe began making enough money to allow Veronica and Uribe to purchase expensive cars and a $980, 000 home in an Eastlake community, where Valencia also lived with his family in a house rented from Adrian Gonzalez. (RT 1011-12, 1021-24.) She met Marc Leon in 2006, when he began helping Uribe and Cap. (RT 1019-21.) David Valencia and Uribe rented horse stables near the border that was owned or run by Adrian Gonzalez' brother Fabian Gonzalez, called “the ranch.” (RT 1028.) Veronica met a man at the ranch by the name of Ernesto Ayon, also known to her as Chapo, who worked for Valencia, but not for Uribe and Cap. (RT 1029-30.) Veronica said it did not appear to her that Valencia was part of Uribe and Cap's marijuana trafficking organization. (RT 1030.)

         Veronica testified that Uribe's relationship with Valencia became strained in March 2007, about two months before Uribe was kidnapped. (RT 1018.) Uribe was in the habit at that time of calling Marc Leon in the morning when he wanted to be picked up, and having Leon drop him off at the end of each day. (RT 1033-34.) Adrian Gonzalez, David Valencia's landlord, called their home on the morning of May 3 and asked Uribe when he was going to pay Valencia the money he owed Valencia, because Valencia needed to pay rent to Gonzalez. (RT 1035.) She overheard the conversation because Uribe used a radio phone, and said Uribe responded angrily that he did not owe Valencia anything, that he did not know what Gonzalez was talking about, and that Valencia was lying. (RT 1035-37.) Valencia called Uribe shortly thereafter speaking in a serious tone, and Uribe told Valencia that Leon was on the way to pick him up and Uribe would call Valencia back from the car in a few minutes. (RT 1037-40.) Uribe left with Leon, and Veronica never saw him again. (RT 1040.)

         Roberto Palafax, also known as Antonio “Tony” Sanchez, testified that he was currently serving a six-year state prison sentence for possession of marijuana with intent to distribute, and that he had been arrested on June 18, 2007 in Cleveland, Ohio. (RT 8144-45.) Palafax said Cesar Uribe was his best friend and that he was good friends with Marc Leon, that they called him Cap, and that he and Uribe were partners in selling marijuana, with Uribe obtaining it and Palafax selling it in Cleveland. (RT 8149-74.) Palafax did not know or want to know where Uribe obtained the marijuana, denied having any ties to the AFO, and said that as far as he knew Uribe had no ties to the AFO. (RT 8304.) On May 3, 2007, someone called him using Uribe's phone and said they had kidnapped him and wanted a ridiculous amount of money, either a million or half a million dollars, and when Palafax told them they did not have that kind of money, they said they would give him two weeks to sell everything he owned. (RT 8175-85, 8208.) He said the kidnappers seemed to know everything about him, including who owed him money, information they could only have gotten from Uribe. (RT 8186.) They told him it was just business and if he did what they said Uribe would be released. (RT 8201.) Palafax and Uribe's family began gathering money, Palafax flew to San Diego from Cleveland, and the kidnappers called again one week later. (RT 8217-20.) Palafax testified that earlier in the day Uribe was kidnapped, Uribe told him he was going to meet Valencia. (RT 8312.)

         Palafax said a second call gave instructions for the ransom drop, and a little over $50, 000 was dropped at the Briarwood apartment complex in Chula Vista. (RT 8332-48.) The kidnappers called again after the drop and said they would do them a favor and take whatever they had, such as jewelry and whatever other money they could get. (RT 8349-50.) Palafax and Uribe's family made a second drop of about $40, 000 plus watches and jewelry. (RT 8350-57.) When they had not heard from the kidnappers for three or four days and Uribe and Leon were not returned, they called the police. (RT 8360.)

         Veronica Gamez was recalled and testified that David Valencia came to her home during the negotiations and denied knowing anything about the kidnapping. (RT 8580-8618.) Several members of Cesar Uribe's family testified that although they had never met Petitioner, they occasionally saw Valencia at family celebrations, and that Valencia came to the Uribe house during the kidnapping very red and jittery, sweating profusely, pacing, looked very nervous, and was worried they might call the police. (RT 8803-33, 8910.) A family member testified that they gathered a total of $72, 000 in ransom money for the first drop, and $33, 000 and watches and jewelry for the second drop. (RT 8842-60.) A fraud investigator with the Bank of America testified that withdrawals from Cesar Uribe's account were made from an ATM on May 3, 5 and 7, 2007. (RT 12810-26.) The jury was shown a photograph taken from an ATM during the withdrawal on May 7, 2007, which the prosecutor argued depicted Petitioner. (RT 12816-20, 14344, 14374.)

         Adrian Gonzalez testified that he rented a house to David Valencia three houses down from Cesar Uribe's house. (RT 10411-12.) Adrian said his brother Fabian had a horse ranch where Uribe and Valencia often hung out with Ernesto Ayon, also called Neto or Chapo, who lived there. (RT 10412-13.) In April or May of 2007, Valencia was $9, 000 behind in his rent, and Valencia told Adrian he would pay as soon as Uribe paid $70, 000 he owed him. (RT 10416-18.) Adrian called Uribe on May 3, 2007, the day he went missing, told him what Valencia had said, and said that Uribe got upset and denied owing Valencia anything. (RT 10419-21.) Valencia paid Adrian Gonzalez the $9, 000 in June 2007. (RT 10427, 10449.)

         Ramona Orozco testified that in 2007 she lived in Tijuana with her husband and their son Ivan Lozano Dias, Jr. (RT 1105.) Lozano was born in the United States and crossed the border to attend high school in Chula Vista, often accompanied by his friend Omar Sarabia, although he did not finish high school due to drug problems. (RT 1109-11.) The last day Ramona saw Lozano was Friday, March 22, 2007, when he left home to spend the weekend with their family friends Felix and Hazel Briseno in Chula Vista. (RT 1113-16, 1119.) When she was unable to contact Lozano, she and her husband called the police and hired a private investigator. (RT 1117-18.) They were eventually contacted by the Sarabia family and told that Lozano was last seen with Omar, and were later notified that Lozano's body was found on April 4, 2007 in San Diego County. (RT 1118, 1127.)

         Hazel Briseno testified that Lozano often came from Tijuana and visited the Briseno house in Chula Vista in March 2007 when Mr. Briseno was dying of cancer. (RT 4103-04.) Hazel, her husband and Lozano spent the afternoon of March 23, 2007, at the Briseno house. (RT 4105.) Lozano received a call from Omar Sarabia, who was nicknamed Pecas, and said he was going out to meet Omar but would be back for dinner in fifteen minutes. (RT 4109-11.) Lozano was picked up ten minutes later, about 3:00 p.m., and left his jacket and car keys at the Briseno home. (RT 4112-14.) When Mr. Briseno called Lozano about an hour and a half later, Lozano sounded agitated and serious, and they never saw or heard from him again. (RT 4114-15.)

         Brett Burkett, a San Diego Police Homicide Detective, testified that on April 4, 2007, he found the dead and decomposing body of Ivan Lozano, Jr. in the trunk of a 1999 Chrysler Concord abandoned in a Clairemont neighborhood, and there were large blisters and numerous toothpicks around the face and neck area. (RT 6915-18.) The owner of the car said it was stolen on March 24, 2007, about 1:00 or 2:00 a.m. (RT 4209-16.) Someone who lived near where the car was found said he first saw it parked there about 9:00 a.m. on March 24. (RT 4038-43.) Steven Charles Campman, a forensic pathologist with the San Diego County medical examiner, testified that Lozano had blunt force injuries, Taser injuries, duct tape residue around the ankles with indications the legs had been bound, and had been dead for an undeterminable number of days. (RT 8010-27.) Dr. Campman said the cause of death was homicidal violence including asphyxiation, and it would be consistent with his findings if he had died on March 23, 2007. (RT 8028, 8120, 8133.) Spare parts from the Chrysler Concord were later found in the garage of a house at 6549 Garber Avenue in Paradise Valley. (RT 9101-12.)

         Emmanuel Nwagbo testified that he owned the house at 6549 Garber Avenue in Paradise Valley, and had lived there for five years before renting it in October 2006 to persons who identified themselves as Ignacio Peredo and Norma Berumen. (RT 1124-29.) The renters made the first payment in cash, and made the second payment with a Western Union transfer. (RT 1248-49.) At some point his neighbors, who Nwagbo knew well, complained about his tenants, but the tenants refused to allow Nwagbo in the house. (RT 1253.) He went there on Mother's Day in the United States, Sunday, May 13, 2007, and was refused entrance by a young Hispanic male who claimed he did not speak English. (RT 1254-56.) Nwagbo was later contacted by the FBI and the San Diego Police, and identified that man from a photographic lineup as Carlos Pena. (RT 1257-58, 1324, 1580-84.) When Nwagbo entered the Garber Avenue house the first week of June 2007 it was abandoned, with the utilities shut off, and he noticed a bad smell and saw a lot of clothing, chemicals, white powder and damage to the house, so he called the police. (RT 1267-70.) The smell came from a black bag in the garage that had something seeping from it that looked like blood, with a box of muriatic acid next to it. (RT 1320-22.)

         Nwagbo turned over a UPS envelope to the FBI with the name of Onel Jimenez, in which Nwagbo had received the January rent payment. (RT 1591.) Meredith Dent, a San Diego County District Attorney paralegal, testified that she subpoenaed UPS records which showed that envelopes were sent from Onel Jimenez to Emmanuel Nwagbo in April and May, 2007. (RT 1591, 13713-26.)

         Onel Jimenez testified that he was born in Cuba, came to the United States on a raft when he was 19, spent a year at Guantanamo Bay, and then entered the United States legally in 1995. (RT 3402-03.) He met Petitioner, who is also Cuban and has the nickname Chino, in 2005, and they became friends and lived together in Kansas City. (RT 3407-09.) The last time he saw Petitioner was in early 2006 in Kansas City, and said he never gave him permission to use his name. (RT 3414.) Jimenez identified documents found on Petitioner when he was arrested as Jimenez' Missouri identification card, his contractor's license, and a Florida driver's license that Jimenez did not apply for which bore his information but Petitioner's photograph. (RT 3415-18.)

         Richard Weiler, an FBI Agent stationed in Kansas City, Missouri, testified that he investigated Mexican and Cuba drug trafficking gangs active in that area in 2006-07. (RT 3528-33.) He said Petitioner was identified as a person of interest during the investigation of a Cuban gang, which did business with a Mexican gang with ties to San Diego, and that Petitioner left the Kansas City area on September 6, 2006. (RT 3541, 3550-58.) Evidence was excluded that Petitioner left Kansas City immediately after a double murder and was involved in kidnapping and murdering drug dealers when he lived there. (RT 385-93.)

         Kameron Korte, a Drug Enforcement Administration Agent, testified that she was a member of the San Diego Integrated Narcotics Task Force which participated in the June 2007 investigation into a kidnapping at 1539 Point Dume Court. (RT 1376-77.) Korte said she interviewed the persons arrested following a SWAT raid at that address on June 16, 2007, which resulted in the rescue of the kidnap victim, Eduardo Gonzalez-Tostado. (RT 1379-81.) Jorge Rojas Lopez falsely identified himself as Ruben Flores, and was in possession of three forms of identification under the name of Jose Meraz Carrasco. (RT 1381-94.) Juan Estrada-Gonzalez provided his true name, and was in possession of several forms of identification in the name of Miguel Escamilla. (RT 1396-97.) Carlos Pena identified himself as Jose Carlos Pena-Garcia, and was in possession of two padlock keys, a handcuff key, and a cell phone. (RT 1414-15.) Petitioner gave his true name, said he was born in Havana, Cuba, and was in possession of a Florida driver's license under the name of Onel Jimenez. (RT 1406.) He was also in possession of handcuffs, a gold chain with a gold medallion similar to what a police officer might wear in a SWAT raid, a receipt for a cell phone, and two credit cards issued to the kidnap victim. (RT 1407-13.)

         Tony Botterill, a property manager in Chula Vista, testified that the house at 1539 Point Dume Court in Chula Vista was rented on May 26, 2007, by Luis Armando Gonzalez Perez. (RT 1351-54.) He said David Valencia rented a property in Eastlake, about seven miles from the Point Dume Court house. (RT 1358-59.) The owner of the Point Dume property called Botterill on June 16, 2007, when he saw his house on the news surrounded by a SWAT team. (RT 1359-60, 1363.) Botterill went there the next day and found food debris and discarded fast food wrappers, a missing stair carpet, and two dirty mattresses. (RT 1362-63.) A Taser gun was later found hidden in a couch. (RT 1369-73.)

         Joel Mendoza, a San Diego Police Officer, testified that on June 13, 2007, he and his partner were on patrol in farmland area with horse stables near the border when they saw a Toyota Camry with a brake light out, and initiated a traffic stop. (RT 1132-37.) The driver was David Valencia and the passenger was Ernesto Ayon. (RT 1142-48.) The officers found an unloaded .40-caliber Ruger semiautomatic handgun under the driver's seat, a loaded .40-caliber Glock semiautomatic handgun under the front passenger seat, as well as several cell phones and a bindle containing a usable amount of cocaine, and both men were arrested. (RT 1158-60, 1199-1210.)

         FBI Agent Dean Giboney testified, both as an expert witness and an investigator, that he has been the lead agent for the FBI investigation of the Las Palillos kidnapping and murder crew since 2007, and has previously testified as an expert witness regarding Mexican cartels. (RT 1426-27.) He said that Victor Rojas Lopez, also known as El Palillo, was a well-known cell leader for the AFO in the early 2000s, with 20 to 40 people working under him, until he was murdered by the AFO in November 2002. (RT 1507-11, 1525.) His crew stole drugs from other organizations, including the Sinaloa cartel, a heated a rival of the AFO, committed kidnappings for ransom, and trafficked in drugs. (RT 1510-12, 2309.) His nickname, El Palillo, came from the way he wore his hair, in a spiked fashion, and from Palillo, a Spanish word for toothpick. (RT 1517.)

         Agent Giboney testified that Jorge Rojas Lopez, who was arrested in the Point Dume raid, is Victor Rojas Lopez' younger brother, and had been a member of Victor's AFO cell. (RT 1528.) After Victor and other members of the cell were murdered by the AFO, Jorge fled to the United States and continued to operate the cell, but separate from the AFO. (RT 1529.) He said that the May 2007 disappearances of Cesar Uribe and Marc Leon, the March 2007 murder of Ivan Lozano, Jr., and the uncharged April 2007 murder of a man named Mario Baylon, among others, appeared to be traced to the new Los Palillos crew led by Jorge Rojas Lopez. (RT 1529-45.) Agent Giboney identified the members of the new Los Palillos crew over a defense objection regarding whether the testimony was expert opinion or based on investigation, and the jury was instructed regarding those dual roles. (RT 1596-98.) The Los Palillos crew consisted of Jorge Rojas Lopez (with nicknames El Palillo and Jorgillo) and an alias Ruben Flores Rosales, Juan Francisco Estrada-Gonzalez (Pepe), Jesus Lopez-Becerra (Topo), his brother Gerardo Gabriel Lopez-Becerra (Tito) who is deceased, Edgar Frausto-Lopez (Tita), his brother Ponciano Frausto-Lopez (Pelon) who is deceased, Jorge Moreno, Juan Laureano-Arvizu (Flaco or Chaquetin), Juan Omar Sarabia (Pecas), Jesus Gonzalez Trujillo (Compadre), Guillermo Ignacio Moreno-Garcia (Memo), his half-brother Carlos Pena (Morro), Petitioner (Chino or Asere), David Valencia (Guero), Ernesto Ayon (Neto or Chapo), Pedro Corrales (Perico) who is deceased, Eduardo Monroy (the Architect), and Nancy Mendoza Moreno. (RT 1596-1616.)

         Agent Giboney testified that after Eduardo Gonzalez-Tostado was kidnapped on June 10, 2007, a wiretap revealed that Jorge Rojas Lopez was involved. (RT 1545-53.) Agent Giboney determined that Gonzalez-Tostado was being held at 1539 Point Dume Court in Chula Vista, organized a SWAT team entry, rescued the victim, and arrested several men. (RT 1557-59.) Four vehicles were seized from the residence, including a gray Ford Ranger owned by Carlos Pena and a silver Chevrolet Equinox owned by Petitioner. (RT 1568, 5342-47.) Also recovered was a Taser gun, an H&K USP model 40-caliber semiautomatic handgun, several AK-47 style rifles, ammunition, a Sig Sauer P220 semiautomatic handgun, ballistic police vests and other clothing with “police” emblazoned on them, police ball caps and t-shirts, counterfeit police badges designed to be worn around the neck, a ski mask, chains, four padlocks, and a blue and red strobe light ordinarily used by police vehicles designed to plug into a car cigarette lighter. (RT 1624-38.) Agent Giboney opined that dressing up as police and using police lights to kidnap victims and hold them at rented houses is consistent with cartel-style kidnappings. (RT 1823-30.)

         Agent Giboney spoke with the owner of the Garber Avenue residence about a young Hispanic male who answered the door and refused him entry on Mother's Day 2007. (RT 1576-79.) The owner identified that man from a photographic lineup as Carlos Pena, and identified Pena's gray Ford Ranger pickup truck as having been at the house. (RT 1580-84.) The muriatic acid found in the garage of the Garber Avenue house is the type used to dissolve corpses. (RT 2409-10.) A Florida driver's license in the name of William Smith bearing Petitioner's photograph was found at the Point Dume Court house. (RT 2425-27.) Agent Giboney opined that the toothpicks scattered on Lozano's body was a calling card of the Los Palillos crew, as would, hypothetically, if the bodies of Cesar Uribe and Marc Leon had been dissolved in acid, poured into a ditch, and buried. (RT 2611-14.)

         Jennifer Atwood, a San Diego Police Sergeant, was working as a patrol officer in the downtown division when she received a radio dispatch on January 3, 2007, at 11:37 p.m. about a shooting at 1642 Columbia Street in Little Italy. (RT 2631-32.) She entered an apartment and saw a large amount of blood and a man named Arturo Martinez-Barrera bleeding from what appeared to be three close-range large-caliber gunshot wounds. (RT 2634-39, 2705, 3655.) His black Toyota Sequoia was outside the apartment with a broken window and a blood trail leading to the building, and he told her that a white minivan had parked in front of him at the Briarwood apartments in Chula Vista and five or six men exited the minivan dressed in black with “police” written on their caps and brandishing handguns. (RT 2702-04, 3656-57.) Officer Atwood went to the Briarwood apartments and found shattered glass and shell casings from a .45-caliber automatic. (RT 2640-46.)

         Residents of the Briarwood apartment complex testified that they heard gunshots about 11:00 p.m. on January 3, 2007. (RT 2726-29, 2744-47.) One resident saw two cars drive away at very high speed, a white minivan with its side door open and a silver four-door pickup truck. (RT 2729-40.) Another saw a white minivan with strobe lights with two men in the front, the two rear sliding doors on each side open with the seats removed, and a man wearing all black and a ski mask sitting in the back. (RT 2747-53.) A resident said that although the men were dressed like police she could tell they were not police. (RT 2753-61.)

         Arturo Martinez-Barrera testified, in handcuffs, that he has been in custody since March 6, 2007, serving a 151-month federal prison sentence for conspiracy to distribute more than a dozen kilograms of marijuana. (RT 2820.) He said he started out as a smalltime independent marijuana dealer in the mid-1990s, moving ten or twenty pounds at a time while avoiding involvement with the cartels due to the violence, and avoiding dealing in other drugs due to the long prison sentences, and built his business up to where he was dealing thousands of pounds at a time, at which point he was caught. (RT 2821-31.) In December 2006, Martinez-Barrera was told by Juan Laureano-Arvizu, who he knew as Flaco, that Laureano-Arvizu had heard that Martinez-Barrera owed a drug debt to a man named Jorgillo, an alias for Jorge Rojas Lopez. (RT 2849-54.) He knew he did not owe a debt, but tried to meet with Lopez to clear things up and avoid any trouble. (RT 2854.)

         On January 3, 2007, Laureano-Arvizu asked Martinez-Barrera to go for a drink, and Martinez-Barrera, driving his black Toyota Sequoia, followed Laureano-Arvizu, who was driving a four-door gray pickup truck. (RT 2906-17.) He said Laureano-Arvizu drove abnormally slow while speaking on the phone, and led them to the Briarwood apartment complex. (RT 2924.) When Laureano-Arvizu parked his pickup truck in the apartment complex and apparently went to knock on a door, Martinez-Barrera parked his Sequoia behind Laureano-Arvizu's pickup truck and stayed in his vehicle. (RT 2929-32.) About five minutes later Martinez-Barrera made a U-turn because he thought something might be wrong and wanted to be able to leave quickly, at which point he saw lights coming from the top of a hill and was suddenly boxed in by a car in front and a van on the passenger side of his Sequoia. (RT 2933-38.) Two men who came from the car wore all black and looked like police, pointed handguns at him, banged on his windows, and screamed for him to get out. (RT 2939.) He knew they were not police, so he put the Sequoia in reverse as shots were fired from both sides, which broke a window and hit him in three places. (RT 2944-47, 3003.) When the van started following him it created a gap, and he drove though the gap and out of the apartment complex. (RT 2953-54.) He drove to 1642 Columbia Street in Little Italy to the apartment of his friend Valeria, where the paramedics took him to the hospital, and called his friend Cynthia Mendoza along the way and told her that Laureano-Arvizu had set him up. (RT 2955-57.)

         Martinez-Barrera said he had never met Petitioner, but David Valencia, who also went by the name Guero, was a friend of his from the early 1980s when they lived in Tijuana. (RT 3019-20.) Valencia sold marijuana to Martinez-Barrera on three occasions, about one hundred pounds each time, but Martinez-Barrera did not know if Valencia was affiliated with any cartel. (RT 3021-22.) Martinez-Barrera said he had a falling out with Valencia in 2004 when he was fronted marijuana from Valencia that was stolen before it was sold, and he had to pay Valencia back out of his own pocket, and after that they never saw each other again. (RT 3025-26.)

         Cynthia Mendoza testified that she knew Arturo Martinez-Barrera as Manzanas, that she has known him most of her life, and that he is a family friend. (RT 3150.) She said there were two brothers who went by the name of El Palillo whom she and everyone else knew of from going out to clubs in Tijuana, and said the older brother died and the younger brother was named Jorgito or Jorgillo, both meaning “little Jorge.” (RT 3155-57, 3202.) In 2006 and early 2007, Mendoza often saw Jorgillo in clubs in downtown San Diego and Little Italy in the company of Laureano-Arvizu, who she knew as Juan Flaco or Chaquetin, who was also a family friend. (RT 3158-61.) Juan Omar Sarabia, who she knew as Omar Pecas, and his sister Griselda Sarabia, were part of that group which Mendoza often saw in clubs wearing expensive clothes and drinking expensive alcohol. (RT 3162-64.) Mendoza knew that Los Palillos was an illegal cartel to be feared, and said that Laureano-Arvizu bragged that he was part of that cartel. (RT 3201-04.) She said Laureano-Arvizu drove a gray four-door pickup truck, and he came to live with her for several weeks in December 2006, but she kicked him out for what he did to Martinez-Barrera. (RT 3204-08.) Mendoza testified that when Martinez-Barrera dropped her off at her home on January 3, 2007, Laureano-Arvizu was there, and Martinez-Barrera said he and Laureano-Arvizu were going out for a drink. (RT 2311-19.) She went to bed and was awoke by a panicked phone call from Martinez-Barrera who told her he had been shot, that Laureano-Arvizu had set him up, and that she should get her daughter and leave. (RT 3222-23.) Laureano-Arvizu then called asking where Martinez-Barrera was, and Mendoza and her daughter fled to her cousin Valeria's apartment on Columbia Street in Little Italy. (RT 3223-28.)

         Valeria Aguayo testified that Cynthia Mendoza is her cousin, that she met Arturo Martinez-Barrera, also called Manzanas, through her family when she was a teenager, and had known Juan Laureano-Arvizu Flaco, who she also knew as Chaquetin, since she was a teenager. (RT 3301-04.) Laureano-Arvizu introduced her to Jorge Rojas Lopez, the younger of two brothers nicknamed El Palillo, in 2006, at a nightclub in Tijuana, although she was already aware of who he was because she was close friends with Edgar Frausto-Lopez, a drug dealer who worked with the elder El Palillo (Victor Rojas Lopez) in the early 2000s. (RT 3305-14.) She also knew Juan Omar Sarabia and his sister Griselda Sarabia, and said Omar and Laureano-Arvizu worked together and were good friends. (RT 3335-37.) On January 3, 2007, Martinez-Barrera arrived at her apartment on Columbia Street, shot and bleeding, and was taken to the hospital. (RT 3324-27.)

         Valeria testified that a few days after Martinez-Barrera was shot, she and her friend Ulysses entered a nightclub in the Gaslamp District in San Diego and saw the younger El Palillo, called Jorge, with a woman named Patty, and they immediately turned around and left the club and waited for a taxi outside to go home. (RT 3346.) A short time later, Jorge and Patty pulled up to where they were waiting for a taxi and gave her a ride home in Jorge's Cadillac Escalade, dropping Ulysses off at his car. (RT 3346-47.) Jorge asked her over and over if there had been any gossip about Martinez-Barrera. (RT 3348-51.) They were sitting in the Escalade talking when the police arrived due to a complaint regarding loud music coming from the Escalade, and arrested Jorge for possession of a handgun that he had been fingering while questioning Valeria. (RT 3352-54, 3357.)

         San Diego Police Officer Joel Schmid testified that he was passing 1642 Columbia Street on January 7, 2007, about 3:30 a.m., and saw a new Cadillac Escalade, registered to Juan Lopez, parked in the driveway with its passenger door open. (RT 3953-56, 3958.) Ruben Flores Rosales, an alias for Jorge Rojas Lopez, was in the driver's seat with Patricia Soto sitting on his lap, Valeria Aguayo was in the passenger seat, and they were drinking and talking. (RT 3954-57.) A search of the vehicle revealed a radio phone, six cell phones, and a loaded Colt Mustang .380 caliber semiautomatic handgun. (RT 3958-64, 4007.) A search of the driver revealed a small amount of methamphetamine, $3200 in cash, and a U.S. Visa, Mexican Passport, birth certificate and Mexican Driver's license all in the name of Ruben Albel Flores Rosales. (RT 4000-07, 4016.)

         Lourdes Hernandez testified that she met Juan Laureano-Arvizu, also known as Flaco and Chaquetin, in March 2006 when she was 18 years old working as a waitress, and he was 33 years old and came to her restaurant well-dressed with well-dressed friends. (RT 3562-63, 3568.) She began dating him two weeks later, they started to live together seven or eight months later, and broke up in November 2006. (RT 3654-67, 3570.) She said that one of Laureano-Arvizu's best friends was Omar Sarabia, who she knew as Pecas, another was Guillermo Ignacio Moreno-Garcia, who she knew as Memo, and that Laureano-Arvizu drove a four-door silver pickup truck. (RT 3569-74.) Hernandez testified that on January 3, 2007, Laureano-Arvizu drove them to go for drinks while Martinez-Barrera followed in his black Toyota Sequoia. (RT 3575-78.) Laureano-Arvizu stopped his pickup truck in the Briarwood apartment complex, with Martinez-Barrera stopped directly behind him, got out, and told Hernandez “if you see anything weird, leave.” (RT 3578-82.) She moved to the driver's seat as he walked out of sight as if to enter an apartment. (RT 3583-84.) Martinez-Barrera moved his Sequoia next to Laureano-Arvizu's pickup truck just as a white minivan pulled up between their vehicles, attempting to block the Sequoia from leaving. (RT 3585-88.) Five or six men with handguns wearing police gear got out of both sides of the sliding doors of the van, surrounded the Sequoia, and shouted at Martinez-Barrera that they were the FBI and he was under arrest. (RT 3588-90.) They wore hats with “FBI” on them, bulletproof vests, and police badges hanging from their necks, but they looked fake. (RT 3590-92.) When a shot was fired she began to drive away in Laureano-Arvizu's pickup truck. (RT 3595.) She saw Laureano-Arvizu, who was standing on a sidewalk, shrug his shoulders as if he did not know what was going on, but his expression also looked fake. (RT 3595-96.) Martinez-Barrera drove off after crashing into the minivan, and she drove off with Laureano-Arvizu. (RT 3598.) Laureano-Arvizu told her to slow down, and four or five of the men from the minivan, one of whom was Moreno-Garcia, ran up and got into the pickup truck. (RT 3599-3601, 3609.) She drove to the Garber Avenue house at Laureano-Arvizu's direction. (RT 3602, 5543.) She went back to the Briarwood apartments later that night with Laureano-Arvizu, Moreno-Garcia and Moreno-Garcia's girlfriend to pick up Laureano-Arvizu's gun which he had thrown in a bush. (RT 3616-18.)

         The owner of a white Dodge Caravan minivan testified it was stolen between 6:30 p.m. and 11:00 p.m. on October 19, 2006. (RT 4220-22.) When it was recovered, the middle bench seat had been removed and there was damage as if it had collided with a black vehicle. (RT 4224.) It was found abandoned near the border, with the middle seat removed and black paint on the right side next to collision damage. (RT 4233-42.)

         Ron Newquest, a San Diego Police Homicide Detective, testified that on March 13, 2007, he was called to investigate a body decomposing in a vehicle near Palm Avenue and Interstate 805, which was the beginning of his involvement in the investigation of a string of kidnapping and murders involving Los Palillos. (RT 3817-20.) The victim was named Mario Baylon, and his body was bloated and had Taser injuries. (RT 3823.) The body of Ivan Lozano, Jr. was found on April 4, 2007, which led Detective Newquest to become involved in the kidnappings of Cesar Uribe, Marc Leon and Eduardo Gonzalez-Tostado, as well as the SWAT team action at the Point Dume house. (RT 3825-29.) He said he saw Taser marks on the back of Gonzalez-Tostado when he was rescued, and found a barrel in the backyard of the Garber Avenue house used as a barbeque. (RT 3834-3908.)

         Jose Garcia Vazquez, also known as Kilino, testified that he was kidnapped on January 31, 2007, when eight or ten men dressed like police came from a white van and took him out of the Chevrolet Equinox being driven by a woman named Nancy who had befriended him at his gym and had insisted he go with her in her vehicle to run an errand. (RT 4315-26, 4406.) They shot him with a Taser gun, causing him to lose consciousness, and he was handcuffed and taken to the house on Garber Avenue. (RT 4328-36, 13845.) He was kept blindfolded in a closet on the second story for twenty-two days, and was fed fast food twice a day. (RT 4338-39.) He thought one of his captors was Mexican and the other, named El Cubano, was Cuban or Venezuelan. (RT 4403.) He was taken in a white Cadillac Escalade and released at a shopping center. (RT 4420.) He testified that he did not know Petitioner, but he saw David Valencia at his gym a few times. (RT 4423-24.)

         Guillermo Ignacio Moreno-Garcia testified pursuant to a cooperation agreement, and said he expected to be sentenced to at least 25 years and at most 33 years and eight months in prison provided he testified truthfully. (RT 5012-13.) He said he goes by the name of Memo, and that Carlos Pena, who goes by the name of Morro, is his younger half-brother. (RT 4520-21.) Moreno-Garcia said that while he was in high school he started hanging out with a man named Juan Carlos Lopez, dropped out in order to sell drugs, and eventually joined the AFO when he was 18 or 19 years old. (RT 4520-22.) At that time he worked for Lopez and Lopez' four older brothers, who in turn worked for El Mayel, a high-ranking member of the AFO. (RT 4537-4602.) After two of the Lopez brothers were killed and El Mayel arrested, Victor Rojas Lopez, known as the elder El Palillo, a close friend of Moreno-Garcia, took over for the Lopez brothers and became the leader of a cell of the AFO which called itself Los Palillos. (RT 4606-07, 4635-36.) Moreno-Garcia was a soldier in that cell, along with Jorge Gonzalez-Trujillo, known as Compadre, who was married to Victor Rojas Lopez's sister. (RT 4607-08.) Also working for the cell was Edgar Frausto-Lopez (Tito), Armando Rodriguez (Chipo), and Hector Altamirano-Lopez (Teran). (RT 4607-08.) Moreno-Garcia said he worked for the AFO from 2001 to 2003, and that his association ended when Victor Rojas Lopez was killed. (RT 4628.)

         Moreno-Garcia testified that when Ramon Arellano was killed and his brother Benjamin Arellano arrested, their younger brother Francisco Arellano, known as Tigrillo, took over the AFO. (RT 4640-41.) The elder El Pallio's brother-in-law, Cholo, ran a crew in the AFO, and around 2003 Moreno-Garcia saw Cholo and Frausto-Lopez argue over a woman in a club. (RT 4641-44, 5229.) Moreno-Garcia called the elder El Palillo, who ordered them to leave the club, but Frausto-Lopez waited outside and pointed a gun at Cholo. (RT 4647-49.) Cholo and his crew were arrested but Moreno-Garcia and Frausto-Lopez were not, and Cholo demanded that Frausto-Lopez be killed for the embarrassment. (RT 4649-53.) When the elder El Palillo refused, he was killed by the AFO along with three members of the Los Palillos crew, because Cholo was Francisco Arellano's right-hand man, and the original Los Palillos crew then disbanded. (RT 4651-55, 4732-33.)

         Moreno-Garcia was also close friends with the elder El Palillo's younger brother Jorge Rojas Lopez, who he called Jorgillo, who was a member of the AFO. (RT 4717-20.) Sometime after the elder El Palillo was killed and the original Los Palillos crew disbanded, Moreno-Garcia met Jorge Rojas Lopez in San Diego and, with other members of the disbanded crew, began importing drugs from Mexico and shipping them to Kansas City, but with no connection to the AFO. (RT 4739-44, 4802.) Jorge Rojas Lopez, who was living in San Diego illegally with a false passport in the name of Ruben Flores, wanted revenge on the AFO. (RT 4744-45.) All the former members of the Los Palillos crew wanted revenge on the AFO, so Moreno-Garcia said they began kidnapping AFO members, and that most of the drugs they shipped to Kansas City were obtained as ransom from those kidnappings. (RT 4740-50, 4825-26.)

         Moreno-Garcia identified Petitioner, who he knew as Chino, as one of the people who worked for the group to which they shipped drugs in Kansas City, and said he and Petitioner became good friends when Petitioner moved to San Diego. (RT 4829-47.) Petitioner was part of the Kansas City crew run by Jhanmay Molina which eventually joined forces with the new Los Palillos. (RT 4826-32.) Moreno-Garcia lived at the Briarwood apartments when Petitioner moved to San Diego, and Petitioner lived in the house on Garber Avenue that Moreno-Garcia rented in October 2006. (RT 4849-50.) It was at that time they started calling themselves Los Palillos again, and began kidnapping AFO members in San Diego for ransom. (RT 4851-56.) Moreno-Garcia said he participated in 10 to 15 kidnappings with Los Palillos, and said Jorge Rojas Lopez became known as El Pallilo and was the leader of the crew that included Juan Laureano-Arvizu, also known as Flaco and Chaquetin. (RT 4902.) Moreno-Garcia knew David Valencia, and said Valencia was good friends with Ernesto Ayon, also known as Neto or Chapo, and that Valencia and Ayon had a ranch five minutes from the border. (RT 4912-14.)

         Moreno-Garcia testified that the Garber Avenue and Point Dume houses were safe houses for Los Palillos, that the Garber Avenue house was rented under the name of an ex-wife of a Los Palillos associate named Primo, and that Moreno-Garcia participated in renting that house. (RT 5026-28.) He said that the high ranking members of the Los Palillos crew each lived in their own homes where no criminal activity was allowed to take place in order to avoid being raided, and that Laureano-Arvizu at times lived with his girlfriend Lourdes Hernandez in downtown San Diego. (RT 5020-23.)

         Moreno-Garcia testified that he began his association with the new Los Palillos when, in August 2004, he was approached by Hector Pelon, a member of the original Los Palillos who had worked under Victor Rojas Lopez (the elder El Palillo), and asked if he was up to doing something with Victor's younger brother Jorge Rojas Lopez and Edgar Frausto-Lopez (Tito). (RT 5035-39.) Moreno-Garcia was brought to a house in Chula Vista where Altamirano-Lopez lived, and where Jorge Rojas Lopez (now called El Palillo) and Frausto-Lopez told him that that several men were coming to drop off money from drug proceeds from up north, and that the men would need to sleep for a few hours before continuing on to Mexico with the money hidden in secret compartments in their truck. (RT 5039-41.) Moreno-Garcia was told that instead of helping the men as usual, this time Frausto-Lopez, Jorge Rojas Lopez, and himself would hide upstairs, allow the men to think that only Altamirano-Lopez was home, wait for them to fall asleep, and then tie them up and rob them. (RT 5041-42.)

         After the three men arrived and fell asleep, Moreno-Garcia searched their truck while the men were murdered. (RT 5042-55.) Moreno-Garcia purchased a minivan with cash at a nearby junk yard, and the three dead men were put in the back. (RT 5056-60.) Jorge Rojas Lopez threw some money on top of the bodies, and Moreno-Garcia drove the van to Chula Vista where he parked it and left the keys under the mat, having been told that someone would pick it up and drive it to Tijuana. (RT 5062-63.) They abandoned the house, and Frausto-Lopez gave Moreno-Garcia $21, 000 and said it was from Jorge Rojas Lopez. (RT 5101-05.) Several people from the Kansas City crew, which included Jesus Lopez-Becarra (Topo) and Juan Francisco Estrada-Gonzalez (Pepe), moved to San Diego from Kansas City, and, along with others, the new Los Palillos crew was formed. (RT 5110-11.) Jorge Rojas Lopez was their leader, and Frausto-Lopez was his right hand man until he was arrested, when Estrada-Gonzalez took over as Jorge Rojas Lopez's right hand man. (RT 5111.)

         The next murder Moreno-Garcia participated in for Los Palillos occurred in August 2005, where a man was lured into a safe house on Elder Street under the guise of selling marijuana. (RT 5120-22.) Moreno-Garcia said that he and other members of the Los Palillos crew, which did not yet include Petitioner, planned to shoot the victim with a Taser gun and take his marijuana. (RT 5121-24.) The victim was handcuffed, shot with a Taser gun, beaten, questioned about his sources of marijuana within the AFO, and after five or six hours murdered. (RT 5127-30.) While that was happening, Moreno-Garcia packaged the marijuana, about 80 or 90 pounds, and mailed it to Kansas City. (RT 5131.) The dead man was put in his own van which was dumped near the border with “Del Chapo” written on it, a reference to the boss of the Sinaloa cartel. (RT 5138-42.)

         Moreno-Garcia testified that at some point the Los Palillos crew found out that the AFO intended to send people from Mexico to the United States to kill them, and they agreed to go after the AFO instead. (RT 5201-02.) El Palillo found out from Chaquetin where Camaron, a high level member of the AFO, lived, and the Los Palillos crew began surveillance in preparation for his kidnapping. (RT 5202-03.) The Los Palillos crew dressed as police, armed themselves, cornered Camaron when he tried to leave his house, and abducted him without a fight. (RT 5204-14.) They put Camaron in the back of a van, shot him with a Taser, and drove him to the Elder Street safe house where he was held and tortured for one or two weeks before he was murdered by Lopez-Bacerra. (RT 5214-23.) Moreno-Garcia was paid $34, 000 out of the $300, 000 ransom, Camaron's body was wrapped in a tarp and dumped behind a hotel, and the Elder Street house was abandoned. (RT 5220-21, 5226, 5231.)

         Moreno-Garcia said that Laureano-Arvizu, who he knew at Chaquetin, then told them about another AFO member named Parra who sold marijuana, and the Los Palillos crew began surveillance of Parra. (RT 5232-33.) The crew dressed like police again, armed themselves, drove into Parra's driveway with a dashboard flashing light plugged into the vehicle's cigarette lighter, shot at Parra when he ran, and left without abducting him. (RT 5235-40.) As Moreno-Garcia drove away with Frausto-Lopez and Jorge Rojas Lopez in the car, a real police officer gave chase in his patrol car. (RT 5240-43.) When Moreno-Garcia was unable to evade the police car, he stopped and everyone but him got out and shot at the police car. (RT 5243-44.) The men got back in the car and Moreno-Garcia drove away, eventually stopping again where everyone but him jumped out and run away, and he drove across the border into Mexico. (RT 5244-48.) A couple of months later the Los Palillos crew kidnapped a man named Abelino in the same manner, with Jorge Rojas Lopez, Juan Estrada-Gonzalez, Lopez-Bacerra and Frausto-Lopez dressed as police, with Moreno-Garcia driving. (RT 5252-54.) Moreno-Garcia received $14, 000 from the ransom in that incident, and testified that the five of them thereafter participated in several other similar kidnappings. (RT 5255-58.)

         Moreno-Garcia testified that when Petitioner moved to San Diego from Kansas City he stayed with Moreno-Garcia in his apartment at the Briarwood apartment complex for a month or so, and then moved into the Garber Avenue house. (RT 5300-02.) The first two kidnapping victims brought to the Garber Avenue house while Petitioner was living there were named Balitas (Eddie Nunez) and Kilino (Jorge Garcia-Vasquez). (RT 5314.) Balitas' father worked for the AFO and Kilino's wife was related to a financial advisor for the AFO. (RT 5415.) Moreno-Garcia and Petitioner took turns guarding Balitas. (RT 5325.) Kilino was targeted through his gym and abducted with the help of a woman named Nancy, who was close to the Los Palillos crew, and was kept blindfolded the entire time and held in an upstairs closet. (RT 5335-38, 5430-31.) Moreno-Garcia acted as lookout as Estrada-Gonzalez, Lopez-Bacerra and Frausto-Lopez dressed as police and jumped out of a stolen van in that kidnapping, while Petitioner stayed at the Garber Avenue house. (RT 5340-42.) Petitioner, the only Cuban there, took shifts guarding Kilino in the three to five days he was held hostage, and Moreno-Garcia said that Petitioner usually carried a Taser gun. (RT 5425-28.) After the Kilino kidnapping, Petitioner, who was living at the Garber Avenue house, asked to join the Los Palillos crew. (RT 5303-06, 5313.)

         Moreno-Garcia was summoned to the Garber house by Jorge Rojas Lopez on one occasion where he met Petitioner, Estrada-Gonzalez and Frausto-Lopez, and they waited for a call from Laureano-Arvizu (Chaquetin) who was going to set up a drug dealer named Manzanas (Arturo Martinez-Barerra) for the Los Palillos crew to kidnap and rob. (RT 5520-24.) Petitioner was present when they devised a plan where Jorge Rojas Lopez would be driving a stolen van with Frausto-Lopez in the front passenger seat, Moreno-Garcia and Estrada-Gonzalez in the back, and Petitioner on top of a hill in the Briarwood apartment complex in a Toyota Camry as a lookout. (RT 5525-26, 5530.) Jorge Rojas Lopez and Frausto-Lopez dressed as police, and the plan was to act like they were arresting Laureano-Arvizu so that Martinez-Barerra would not panic when they abducted him. (RT 5526.) After they pulled Martinez-Barerra over, Moreno-Garcia's gun accidentally fired when he used it to knock on the window of the Toyota Sequoia Martinez-Barerra was driving, who then put the Sequoia in reverse and almost ran over Moreno-Garcia. (RT 5533-39.) As Jorge Rojas Lopez put the van in reverse, Petitioner drove down from the top of the hill in an attempt to block the Sequoia, but the Sequoia collided with the van and with the Camry Petitioner was driving while Frausto-Lopez fired at the Sequoia, and Martinez-Barerra escaped. (RT 5533-34, 5546.) They all returned to the Garber Avenue house, including Laureano-Arvizu's girlfriend Lourdes. (RT 5543-55.) Moreno-Garcia later returned and picked up Jorge Rojas Lopez's rifle which he had left at the apartment complex, went back to the Garber Avenue house, and then returned again to the apartment complex with Laureano-Arvizu to pick up his gun. (RT 5548-49, 5607-14.)

         After the shootout at the Briarwood apartments, Moreno-Garcia said the crew used the Garber Avenue house to kidnap and murder Ivan Lozano, Jr., who Moreno-Garcia knew from high school. (RT 5618-19.) Several months earlier, Laureano-Arvizu and Moreno-Garcia ran into Lozano at a club in San Diego where they had an altercation during which Moreno-Garcia threatened Lozano because Laureano-Arvizu thought Lozano was affiliated with the AFO. (RT 5622-28.) A couple of months later Laureano-Arvizu said that Juan Omar Sarabia, who Garcia knew as Pecas, said he knew Lozano and knew he was working for the AFO, and Laureano-Arvizu devised a plan to abduct Lozano. (RT 5628-29.) Moreno-Garcia was at the Garber Avenue house along with most of the El Palillo crew, including Carlos Pena (Morro), Petitioner (Asere or Chino), Jorge Rojas Lopez (El Palillo), Juan Estrada-Gonzalez (Pepe), Jesus Lopez-Bacerra (Topo), Edgar Frausto-Lopez (Tito), Jorge Gonzalez-Trujillo (Compadre), and a man known only as Niengo, when Lozano was brought to the house, handcuffed and blindfolded, and interrogated. (RT 5632-39.) After phone calls were made and it was determined no ransom would be paid, Moreno-Garcia witnessed Gonzalez-Trujillo put a belt around Lozano's neck and choke him to death while Moreno-Garcia, Petitioner, Niengo and Laureano-Arvizu kicked Lozano. (RT 5640-42.) Petitioner and Laureano-Arvizu stole a Gold Chrysler Concord and put Lozano's body in the trunk, Jorge Rojas Lopez threw toothpicks over the body, and they abandoned it in Clairemont. (RT 5643-5705.) Moreno-Garcia said he found out later that Omar Sarabia, who he knew as Pecas, had picked Lozano up at the border, and that Lozano had been lured to the Garber Avenue house with 80 to 100 pounds of marijuana he expected to sell, which the Los Palillos crew eventually mailed to Kansas City. (RT 5706-13.)

         After the Lozano murder, Moreno-Garcia was called to the Garber Avenue house by Gonzalez-Trujillo around Mother's Day 2007. (RT 5908-12.) Everyone dressed up like police and armed themselves with guns and a Taser, expecting the arrival of two victims. (RT 5913-14.) Valencia, who was setting up the victims, came in the house through the garage, followed closely by Cesar Uribe, who was tackled. (RT 5918-19.) Moreno-Garcia, Estrada-Gonzalez and Frausto-Lopez stormed into the garage and grabbed the other guy, Marc Anthony Leon, and threw him to the floor and handcuffed him. (RT 5919-20.) Uribe and Leon were brought into the living room bound and blindfolded with duct tape. (RT 5922.) Everyone pretended Valencia was also a victim, and Uribe was taken into the back room while Petitioner and Niengo, one armed with a gun and the other with a Taser, guarded Leon. (RT 5922-28.)

         Uribe told them that he had marijuana in a house close by, and Moreno-Garcia went there with several others and took 80 to 100 pounds of marijuana they eventually shipped to Kansas City, ransacked the house, and returned to the Garber Avenue house where Petitioner was upstairs guarding Uribe and Leon while everyone else was downstairs drinking. (RT 5924-36.) Uribe and Leon were held there for one or two weeks and were both murdered the same day, three or four days after Mother's Day. (RT 5937-38.) Moreno-Garcia said Uribe could not be released because he knew Valencia had set him up, and although everyone felt bad that Leon had just been in the wrong place at the wrong time, he could not be released because he also knew Valencia had set them up. (RT 5941-44.) Uribe and Leon were handcuffed and had duct tape on their eyes and legs the entire time they were held at the Garber Avenue safe house, with Petitioner guarding them at night and Moreno-Garcia guarding them during the day. (RT 5952, 6007-09.)

         Moreno-Garcia said that a decision was made to murder Uribe and Leon and dissolve their bodies in acid so the kidnapping would not come back to Valencia. (RT 6016.) Two 55-gallon barrels were brought to the house, set on top of propane heaters, and filled about a quarter of the way with muriatic acid. (RT 6029-37, 6106.) Petitioner and Valencia were in the house when Leon was brought down and choked to death by Gonzalez-Trujillo with an extension cord, and then stripped and placed in a barrel. (RT 6040-46.) Uribe was then brought downstairs still handcuffed, had the duct tape taken off his eyes, and began talking to Valencia. (RT 6107-10.) Petitioner was in the house at the time, as he lived there and rarely left, but Moreno-Garcia could not remember if he was present in the room when Uribe or Leon were killed. (RT 6109.) Everyone present started kicking Uribe as he was being killed, and he was then stripped and placed in a barrel. (RT 6111-17.) He said it took a couple of days for the bodies to dissolve, that the smell was terrible, and four or five days after the murders the barrels were taken to Valencia's ranch and dumped. (RT 6121-32.) The Garber Avenue house was then abandoned, and Moreno-Garcia's association with Los Palillos ended because he had a falling out over his accidental shooting during the botched Martinez-Barerra kidnap and his refusal to set up a friend. (RT 6139-42.)

         Moreno-Garcia's attorney testified that when she was appointed to represent him he faced life without parole based on the only crime with which he was charged, kidnap for ransom with gang allegations. (RT 7704-09.) In response to defense counsel's opening statement that the only evidence against Petitioner was the testimony of two men (Moreno-Garcia and his half-brother Carlos Pena) trying to avoid the death penalty, Petitioner's attorney testified that after reviewing police reports and other discovery, she determined that Moreno-Garcia was guilty at most as an accessory with respect to the murders, and that he never faced the death penalty. (RT 7716-17.) Moreno-Garcia made a statement to the police and drove around San Diego County with the prosecution team. (RT 7717-24.) His cooperation agreement provided he plead guilty to kidnapping with great bodily injury, firearm use, and gang involvement enhancements, conspiracy to commit robbery, and accessory to murder, and that his exposure would be between 25 years and 33 years and eight months in prison, of which he must serve at least 85 percent. (RT 7726-36.)

         Detective Newquist was recalled and testified that he was present when Moreno-Garcia was interviewed for the first time on January 16, 2008, and when he was driven to two locations in San Diego County afterwards. (RT 7819-22.) Moreno-Garcia told them he knew Petitioner and Valencia, said he was only involved in the ransom collection in the Abelino kidnapping for which he had been arrested, admitted he was the driver in the shootout with a Chula Vista police officer following a botched kidnap attempt, denied involvement in the Lozano, Uribe and Leon murders, denied and then admitted involvement in the murder and body dump of Ricardo Escobar-Luna, and told them that he was just an errand boy for El Palillo. (RT 7828-51, 7904-05.)

         Fabian Gonzalez, the brother of Valencia's landlord Adrian Gonzalez, testified that he knew Valencia and Cesar Uribe from the ranch they rented from him in Imperial Beach, where they kept horses for about two years up until Uribe was kidnapped and Valencia arrested. (RT 8914-20.) He said that Chapo (Ernesto Ayon) lived at the ranch, but he had never met Petitioner. (RT 8926, 8938.) Gilberto Corral testified that he owned the ranch that he rented to Fabian Gonzalez where David Valencia was renting a horse stable, and said that Gonzalez had violated the terms of his lease by building a gated fence and allowing Ernesto Ayon to live there in a horse stall. (RT 9302-21.)

         Eduardo Gonzalez-Tostado testified that he came from a wealthy and well known family in Mexico. (RT 9335-40.) He lived in a gated community in Chula Vista and came home one day in May 2007 and found a note on his door from “Roberto” asking to call immediately because it was urgent. (RT 9343-45.) He called “Roberto, ” who said a dangerous group of people were planning to kidnap Gonzalez-Tostado, and this group owed Roberto $35, 000, but he would tell Gonzalez-Tostado who they were for $50, 000. (RT 9400-04.) From his home security video and private investigators, he learned that “Roberto” was named Chaquetin, also known as Flaco, whose true name is Juan Laureano-Arvizu. (RT 9406.) Gonzalez-Tostado called Laureano-Arvizu again the next day, called him Chaquetin, told him he knew who he was and that if he came to Gonzalez-Tostado's restaurant in Tijuana he would give him $5, 000 for the information. (RT 9409.) Laureano-Arvizu was surprised that Gonzalez-Tostado knew his name, and Laureano-Arvizu told him that Eduardo Monroy, the architect of a remodel on Gonzalez-Tostado's house, was involved in the kidnapping plan and had given them the code to the security gate at his house. (RT 9410-11.)

         Gonzalez-Tostado said he met David Valencia in 2003-04 at a gym near his house in Chula Vista and they became friends, their families became friendly, and he met Cesar Uribe though Valencia. (RT 9420-25.) Gonzalez-Tostado had a falling out with Valencia in late 2003 or early 2004 when, at a club, Valencia got drunk and hit his girlfriend, and when Gonzalez-Tostado intervened Valencia hit him over the head with a bottle, sending him to the hospital. (RT 9426-29.) Around the same time he found the note on his door, he received a message that Valencia wanted to speak to him. (RT 9431-33.)

         Valencia and Gonzalez-Tostado met at a coffee shop the next day, where Valencia introduced him to a very attractive young woman named Nancy, who Valencia said would be willing to party with him and not tell his wife. (RT 9510-14.) Nancy told Gonzalez-Tostado she would like to go out for drinks sometime, and he agreed. (RT 9516-17.) He called Nancy the next day, June 8, 2007, and met her at a coffee shop about 5:00 or 6:00 p.m., but Nancy was driving her own car and wanted him to follow her to drop off her car at her aunt's house a few blocks away and then take her to a cantina in Tijuana, where she could legally drink because she was under 21 years of age. (RT 9519-23.) She drove to a house where she waived him inside, and when he stepped in three armed men came running at him from the hallway dressed in black clothing with police lettering and wearing masks. (RT 9527-36.) He was grabbed from behind, hit with a rifle butt, shot with a Taser gun in the back many times, and fell down and kicked repeatedly. (RT 9536-40.) He briefly lost consciousness, and when he awoke his hands were handcuffed behind his back, his legs were wrapped tightly, he was blindfolded, and the men were laughing. (RT 9540-43.)

         The men took his car keys and told Nancy to take the car, he was chained with padlocks, and they placed him in a closet where he ate and slept the entire time he was a captive. (RT 9605-13.) They told him they had done the same thing to the son of an AFO member named Balitas, to a police officer affiliated with the AFO, to men named Junior and Gordo, and to Kilino, someone Gonzalez-Tostado knew from his gym, who they said was also lured by Nancy. (RT 9619-24.) They called his wife with his phone and explained it was a kidnapping and she agreed to get money together. (RT 9628-33.)

         Gonzalez-Tostado said there were three people who stayed in the house with him the entire time, who called each other Morro, Asere and Tio, and three bosses who were not called by names and would come and go. (RT 9639-41.) He said Asere had a Cuban accent, spent most nights using a laptop computer, and told him he had a wife in Cuba. (RT 9648-51, 9708.) He was told by the number one boss that they were pissed off with the Arellano cartel from Tijuana because they had killed his brother, who was named El Palillo, and accused Gonzalez-Tostado of being friends with the AFO, which he denied. (RT 9709-14.) The number one boss later told Gonzalez-Tostado he did some checking and believed that he was not affiliated with the AFO. (RT 9714.)

         At some point Gonzalez-Tostado was forced to shower, given new clothes, and Morro replaced his blindfold. (RT 9658-9702.) He was brought down to the living room, where Asere, Morro and Tio were gathered with two of the bosses, and was told they had received $200, 000 but wanted more money and the six Rolex watches he owned. (RT 9715-17.) The bosses left and only Asere and Morro remained, and he was allowed to sit on a couch downstairs, blindfolded, where he talked to Asere and listened to a soccer game on the television. (RT 9720-23.) Morro started yelling as the FBI raided the house. (RT 9724.) Asere took the blindfold and handcuffs off Gonzalez-Tostado, and he saw Asere's face, who he identified in court as Petitioner. (RT 9724-27.) He identified Carlos Pena as Morro, and Raul Rojas-Gamez as Tio. (RT 9728-31, 11023-24.) He identified the voice of Jorge Rojas Lopez (El Palillo) at boss number one, the voice of Juan Estrada-Gonzalez (Pepe) as boss number two, and was unable to identify the third boss. (RT 11027-28.)

         Sergio Tostado Valdez, Gonzalez-Tostado's cousin, testified that he socialized with David Valencia on several occasions, and that he never liked Eduardo Monroy, an architect who worked for Gonzalez-Tostado, because Monroy gave Sergio the nickname Brennan which he felt was an insult. (RT 10101-08.) Sergio recognized Juan Laureano-Arvizu, who he knew as Chaquetin, from a surveillance video at Gonzalez-Tostado's house as the person who left a note on the door because Laureano-Arvizu was dating Lourdes Hernandez, the sister of Sergio's girlfriend. (RT 10111-18.) When Sergio received a phone call from Gonzalez-Tostado asking for help putting together some money because he had been kidnapped, he immediately reported the kidnapping to the FBI, recorded the conversations with the kidnappers, who called him Brennan, and helped the family gather the ransom money. (RT 10120-38.) Sergio made a ransom drop of $200, 000 in marked bills and Rolex watches in an FBI briefcase with a tracking device. (RT 10204-28.)

         FBI Agent Giboney was recalled to testify about the events which led to the rescue of Gonzalez-Tostado from the Point Dume house. (RT 10454-620.) Agent Giboney said that in his expert opinion Petitioner and Valencia were members of the Los Palillos crew, and that it constituted a criminal street gang. (RT 10638, 10712-19.)

         Lauren Wood, a special agent with the FBI, testified regarding the events which led to the rescue of Gonzalez-Tostado. (RT 10845-11012.) After the rescue, as she was questioning Gonzalez-Tostado outside the house where he had been held, another agent came forward with Petitioner, who was wearing handcuffs, had an ace bandage on his head and Gonzalez-Tostado's credit card in his pocket, and was pretending to be a victim. (RT 11013-19.) She said Gonzalez-Tostado identified Petitioner as Asere and said he had a Cuban accent, identified Carlos Pena as Morro, identified Raul Rojas-Gamez as Tio, identified the voice of Jorge Rojas Lopez (El Palillo) as boss number one, and the voice of Juan Estrada-Gonzalez (Pepe) as boss number two. (RT 11023-28.) When Jorge Rojas Lopez and Rojas-Gamez were later arrested, they were in possession of cash with recorded serial numbers from the Gonzalez-Tostado ransom. (RT 11031-32.)

         Carlos Pena, also known as Morro, testified that Guillermo Moreno-Garcia, who is called Memo, is his half-brother. (RT 11610-11, 11638.) Pena said he joined Los Palillos in 2006, that he became very close to Edgar Frausto-Lopez (Tito) and Jesus Lopez-Bacerra (Topo), and treated Jorge Rojas Lopez (El Palillo) with respect. (RT 11616-20.) He met Petitioner, who was Cuban and who he called Asere or Chino, when Petitioner moved to San Diego from Kansas City. (RT 11622-23.) Pena moved into the Garber Avenue house in October 2006, along with Petitioner, and they both lived there until it was abandoned, with Petitioner rarely leaving. (RT 11641-42, 11701-04.) Pena moved to the Point Dume house on June 1, 2007, at the same time Petitioner moved into an apartment with his girlfriend Erika. (RT 11705-07.)

         Pena said he was involved in three kidnappings at the Garber Avenue house, Balitas was the first, Santos the second, and Kilino the third, and was involved in the botched attempt to kidnap Martinez-Barrera. (RT 11707-08.) He said he was also involved in three murders which took place at the Garber Avenue house, Ivan Lozano, Marc Leon, and Cesar Uribe, in that order, and that he participated in the kidnapping of Eduardo Gonzalez-Tostado at the Point Dume house. (RT 11709.) Pena described the various roles he and the other members of Los Palillos had in those kidnappings and murders. (RT 11710-12215.) With respect to Petitioner, Pena said Petitioner participated in the abduction of Balitas, and that because Pena and Petitioner lived at the Garber Avenue house, they took the night shifts guarding him. (RT 11715-18.) He said Petitioner took shifts guarding Santos, Kilino, Uribe and Leon during those kidnappings, that Petitioner was out of the house during the botched kidnapping and shooting of Martinez-Barrera, and was in the house when Lozano was killed. (RT 11723, 11731, 11739, 11806-10, 11831.) Petitioner and Pena picked up Cesar Uribe's car after he was abducted, searched it and took what they wanted, and Pena abandoned it in Tijuana. (RT 11825-28.) Pena purchased a Taser gun, and along with Petitioner purchased masks and fans used when they dissolved the bodies of Uribe and Leon, and charcoal for the backyard barbeque barrel they used to cover the smell and burn the victims' clothing. (RT 11918-41, 12021-23.) Pena said that when Pepe told him to go to Tijuana and buy acid, he knew a decision had been made to kill Uribe and Leon rather than release them. (RT 11944-45.) Valencia told him what kind of acid to buy, and Petitioner, who knew how to use the acid because he said he used it to clean milk tanks in Cuba, showed Pena how to mix it properly, and demonstrated by dissolving a pull tab from a soda can, which took about two minutes. (RT 11945-55.)

         When Pena returned to the Garber Avenue house from Tijuana with the acid, Petitioner, Moreno-Garcia, Frausto-Lopez, Lopez-Bacerra, Gonzalez-Trujillo, Jorge Rojas Lopez, Estrada-Gonzalez, Niengo, Ernesto Ayon, and Valencia were at the house, and they all remained there until Uribe and Leon had been murdered and placed in the barrels about seven or eight hours later. (RT 11953, 11957-58.) When Leon was taken downstairs and murdered, Petitioner remained upstairs guarding Uribe, who was praying, but Pena said that everyone in the house, including Petitioner, was present in the room downstairs when Uribe was murdered. (RT 12000-09, 12014.) Pena said that Uribe was taunted before he was killed, that Estrada-Gonzalez gave Pena a plastic bag to put over Uribe's head and said to Pena “it's time you start learning, ” but that Estrada-Gonzalez then took the bag back and put it over Uribe's head as Gonzalez-Trujillo strangled him with a rope.[4] (RT 12010.)

         Three or four days after the murders Pena took the barrels, which had been sealed with duct tape and plastic bags he and Petitioner had purchased, to the ranch and dropped them off with Ernesto Ayon near a five to seven foot-deep hole. (RT 12040-48.) Pena burned both victims' clothes in the backyard of the Garber Avenue house, disposed of their wallets, and after he cleaned the house with Petitioner, including disinfecting the floor where Uribe and Leon were killed, the house was abandoned. (RT 12021-23, 12105-08.)

         Pena testified that Los Palillos then moved their “office” from the Garber Avenue house to the Point Dume house, and that Petitioner did not live at the Point Dume house but came there to work, occasionally spending the night. (RT 12115-18.) When the FBI raided the Point Dume house on June 16, 2007, Petitioner was driving a Chevrolet Equinox that he bought from Topo, which Nancy had driven when Kilino was abducted. (RT 12117-18.) Pena said that he and Petitioner were both patrolling the area in their cars acting as lookouts when Gonzalez-Tostado was abducted. (RT 12320-23.) Pena said that when Gonzalez-Tostado was brought to the Point Dume house, he, Petitioner, Jorge Rojas Lopez, Estrada-Gonzalez, Rojas-Gamez, and Lopez-Bacerra were there, and that he, Petitioner, and Rojas-Gamez guarded Gonzalez-Tostado that first night. (RT 12132-38.) Valencia came over with chains and padlocks the next day, said he would feel better if Gonzalez-Tostado was chained, and whispered so Gonzalez-Tostado would not hear his voice. (RT 12140-41.) Pena said that he, Petitioner and Rojas-Gamez guarded and fed Gonzalez-Tostado the entire time he was there. (RT 12141-43.) Petitioner spent every night there on guard duty but went home during the day. (RT 12144-45.)

         After the ransom was paid, Lopez-Bacerra gave Pena $15, 000 and told him $5, 000 was for him and to give $10, 000 to Petitioner as payment for them guarding Gonzalez-Tostado. (RT 12204.) Pena returned to the Point Dume house, gave Petitioner the money, and was alone there with Petitioner and Gonzalez-Tostado, who had already showered and changed clothes, when the FBI raided the house. (RT 12209-11.) Pena said he and Petitioner panicked and asked Gonzalez-Tostado to give them an alibi, and Petitioner took the handcuffs and blindfold off Gonzalez-Tostado and put them on himself. (RT 12213, 12330.) Pena ran out the back door into a canyon, where he was arrested by a member of the SWAT team. (RT 12213-15.) Pena said that he was arrested along with Petitioner, Estrada-Gonzalez, Jorge Rojas Lopez, Rojas-Gamaz, and Valencia, but that Frausto-Lopez, Gonzalez-Trujillo and Moreno-Garcia remained fugitives for several months. (RT 12228.) Two years after he was arrested, Pena entered into a cooperation agreement with the District Attorney, showed them where the remains of Uribe and Leon were buried, agreed to cooperate in exchange for a plea to kidnapping for ransom and manslaughter with a gang enhancement, with a prison sentence of at least 26 years and 8 months, and no more than 39 years, and said he never faced the death penalty. (RT 12232-310, 12404.)

         Detective Newquist was recalled and testified that Moreno-Garcia said the remains of Uribe and Leon were buried at the ranch but did not know where, and a search of the property with cadaver dogs failed to find anything. (RT 12831-38.) Based on information from Carlos Pena, however, human remains were found at the ranch. (RT 12837-927.)

         Tamira Ballard, a criminalist in the DNA section of the San Diego Police crime lab, testified that Petitioner's DNA was found on the handcuffs and Taser gun found at the Point Dume house. (RT 13007-36.) A professor of anthropology testified that the human remains found at the ranch were consistent with the bodies of Uribe and Leon having been dissolved in acid. (RT 13126-69.) Firing logs for the Taser with Petitioner's DNA showed it was fired 34 times on March 8, 2007, the day Mario Baylon was abducted, 5 times on March 23, 2007, the day Lozano was abducted, twice on March 28, 2007, 8 times on May 3, 2007, the day Uribe and Leon went missing, once each on May 4, 5, 8, 9 and 18, and 12 times on June 8, 2007, the day Gonzalez-Tostado was abducted. (RT 9208-20.)

         Forensic computer examiners testified that the laptop computer seized from the Point Dume house had chat logs in Petitioner's name and about 2, 600 photographs. (RT 13179-99.) The photographs depicted Petitioner with the laptop, with Moreno-Garcia, with his girlfriend Erika Donegan in Las Vegas, next to his Chevrolet Equinox in the driveway of the Garber Avenue house, in the backyard of that house, and inside that house, including sitting on the couch using his laptop computer. (RT 13214-19, 13281-85, 13908-19.)

         Erika Donegan testified that she met Guillermo Moreno-Garcia in 2006 and started dating him, said that she called him Memo, and met his brother Carlos Pena. (RT 13241-45.) She met Petitioner, one of Moreno-Garcia's friends she knew as Chino, in late 2006, and began living with Petitioner in April or May 2007, when Petitioner was driving a Chevrolet Equinox. (RT 13246-49.) After Petitioner was arrested, he asked her to get the Equinox from the FBI in order to remove something from it, but when the FBI released the car to her it was empty. (RT 13260-70.) A woman named Alicia, the wife of one of the leaders of the Los Palillos crew, came over to her house and removed a bundle of cash from inside the door and took it with her. (RT 13270-75.) Donegan said Petitioner often used a laptop computer when they were together. (RT 13276-77.) Telephone records indicated that calls were made from the land line at the Garber Avenue house to Petitioner's cell phone on October 25, 2006 at 3:59, 5:02 and 7:15 p.m., on October 27, 2006 at 1:56 and 3:06 p.m., and on November 2, 2006 at 4:20 p.m. (RT 13504-05.)

         Marco Mercado, an investigator with the San Diego County District Attorney, testified that Lopez-Becerra, also known as Topo, is dead, that Ernest Ayon, also known as Chapo or Neto, was released to the INS and deported before Guillermo Moreno-Garcia implicated him and is a fugitive, and that he arranged for the extradition from Mexico to the United States of Jorge Gonzalez-Trujillo (Compadre) and Nancy Michelle Mendoza-Moreno, who he opined was the same Nancy used to lure Gonzalez-Tostado and Kilino. (RT 13828-42.) He interviewed the kidnap victim called Kilino (Jorge Garcia-Vasquez), who said that Nancy was in the car when he was abducted and that he was held at the Garber Avenue house. (RT 13842-48.) The People rested. (RT 13932.)

         The defense called a crime scene specialist who testified that she processed the Chrysler Concorde with Lozano's body and lifted 15 fingerprints. (RT 13935-42.) The parties stipulated that none of the fingerprints recovered from the Concorde matched Petitioner. (RT 13948.) Both defenses rested and there was no rebuttal. (RT 13950.)

         After deliberating four and one-half days (CT 1497-1508), the jury found Petitioner not guilty of kidnap for ransom of Marc Leon, not guilty of robbery of Ivan Lozano, Jr. and not guilty of the lesser included offense of grand theft of Lozano, but guilty on all other counts, including the attempted kidnapping of Martinez-Barrera, the first degree murders of Lozano, Cesar Uribe and Marc Leon, kidnap for ransom of Cesar Uribe and Eduardo Gonzalez-Tostado, kidnap of Marc Leon, and conspiracy to kidnap Gonzalez-Tostado for ransom. (RT 15303-14.) The jury returned not true findings on the murder special circumstances of torture and robbery, but returned true findings on the murder special circumstances of murder in the course of kidnapping, multiple murders, and murder for the benefit of a criminal street gang, and returned true findings on the remaining enhancement allegations that Petitioner committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang, that he was a principal in the attempted kidnapping of Martinez-Barrera and in the conspiracy count during which at least one principle used a firearm, and that Cesar Uribe and Gonzalez-Tostado suffered bodily harm. (Id.) Valencia was found guilty of kidnapping for ransom and first degree murder of Uribe, and guilty of kidnapping and first degree murder of Leon, with true findings on the same special circumstances on the murders as Petitioner. (CT 1510-23.) Petitioner was sentenced to a term of 25 years to life for the attempted kidnapping of Martinez-Barrera, five consecutive terms of life without the possibility of parole for the murders of Lozano, Uribe and Leon, and for the kidnapping for ransom of Uribe and Gonzalez-Tostado, a consecutive term 5 years for kidnapping Leon, plus 14 years to life on the conspiracy to kidnap for ransom Gonzalez-Tostado, along with imposition of a $1, 000 restitution fine, $714 in court fees, and $2, 467.71 reimbursement for Lozano's funeral expenses. (RT 15374-77.)

         III. DISCUSSION

         Petitioner claims that his federal constitutional rights were violated because there is insufficient evidence apart from the accomplice testimony of Carlos Pena and Guillermo Moreno-Garcia to support the convictions for attempted kidnapping of Martinez-Barrera, the first degree murders of Lozano, Uribe and Leon, and the Uribe and Leon kidnappings (claim one); his convictions for murdering Lozano and Leon under the natural and probable consequences theory of aider and abettor liability are invalid under the post-conviction opinion in People v. Chiu, 59 Cal.4th 155 (2014) (claim two); the hearsay testimony of Adrian Gonzalez that Valencia said Uribe owed Valencia money violated his right to confront Valencia (claim three); there was purposeful racial discrimination in jury selection which appellate counsel failed to challenge (claim four); he was not a major participant in the murders as required to support a sentence of life without the possibility of parole (claim five); he was prejudiced by the denial of his motion for severance of his trial from the trial of Valencia and his motion for dual juries, and he received ineffective assistance of counsel by trial counsel's failure to seek severance of the counts against him and appellate counsel's failure to raise those claims on appeal (claim six); the trial court erred in its evidentiary and discovery rulings with respect to the gang enhancement evidence (claim seven); the trial court erred in imposing a restitution fine without making a finding regarding his ability to pay (claim eight); and his state habeas petitions were denied on the pretext he did not present a prima facie case for relief (claim nine). (Pet. at 9-70.)

         Respondent answers that habeas relief is unavailable because claims one, three, and six through nine do not present federal issues. (Ans. Mem. at 36-59.) Respondent argues that the state court adjudication of the remaining claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, because: (a) Petitioner was convicted of murder during the course of a kidnapping and Chiu does not apply to felony-murder convictions, (b) the voir dire transcripts reveal there was no prima facie showing of discrimination, and (c) there is sufficient evidence that Petitioner was a major participant in the murders to support a sentence of life without parole. (Id.)

         Petitioner replies that: (a) all of his claims present federal issues, (b) Respondent should not be allowed to rely on the jury voir dire transcripts because they were not part of the state court record in his post-conviction proceedings, and if the Court does rely on those transcripts it should either hold an evidentiary hearing or hold the Petition in abeyance while he returns to state court to present the transcripts, (c) Carlos Pena's admission he committed perjury at trial, from which a logical deduction can be made that Moreno-Garcia also committed perjury, should be considered in support of the claims, or he should be allowed to return to state court with that evidence, and (d) the ...


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