United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
is currently in the custody of the California Department of
Corrections and Rehabilitation serving a state prison
sentence of 17 years. He has filed the instant habeas
petition challenging his conviction. The Court finds that the
state court rejections of his claims were not contrary to, or
an unreasonable application of, Supreme Court precedent and
recommends the petition be DENIED.
26, 2013, Petitioner was convicted in the Kern County
Superior Court of robbery, assault with force likely to
produce great bodily injury, and participation in a criminal
street gang, for which he was sentenced to a determinate
prison term of 17 years. People v. Abelar, 2015 WL
8770170, at *1 (Cal.Ct.App. Dec. 14, 2015).
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). Id. On December
14, 2015, the Fifth DCA affirmed the judgment in a reasoned
opinion. Id. Petitioner filed a petition for review
in the California Supreme Court, and the petition was
summarily denied on February 17, 2016. (LD 16, 17.)
January 9, 2017, Petitioner filed the instant petition for
writ of habeas corpus in this Court. (Doc. 1.) Respondent
filed an answer on April 25, 2017. (Doc. 20.) Petitioner
filed a traverse to Respondent's answer on May 30, 2017.
The Court adopts the Statement of Facts in the Fifth
DCA's unpublished decision.
Pedro P., who was 17 years old at the time, was walking
across a pedestrian bridge in McFarland around 8:00 or 9:00
p.m. on December 30, 2012. On the bridge, he encountered
three males, one with a hood on his head and a scarf covering
his face. He had seen the other two around town before. One
of them asked Pedro for money and a phone. Pedro gave him $2
and handed him his phone. After a short time, Pedro prepared
to walk away and asked for his phone back. It was not given
back. The two whose faces had been uncovered donned black
masks. One of the men kicked Pedro's legs out from under
him, and the three proceeded to punch and kick Pedro as he
lay on the ground. From his pants pocket they took his
wallet, which contained some money. Then they ran away.
Pedro ran off the bridge holding his chin, which had been
hit, and soon encountered a police officer, who asked what
was wrong. The officer took Pedro to the police station,
where he told his story and was shown some photographic
lineups. He selected photos of Abelar and Ramirez as
depicting two of his attackers.
The district attorney filed an information charging Abelar
and Ramirez with four counts. Count 1 charged both defendants
with second degree robbery. (§ 212.5, subd. (c).) In
count 2, they were charged with making criminal threats.
(§ 422.) Count 3 charged defendants with assault by
means of force likely to cause great bodily injury. (§
245, subd. (a)(4).) And count 4 charged them with being
active participants in a criminal street gang. (§
186.22, subd. (a).) Counts 1 through 3 included
sentence-enhancement allegations that Abelar and Ramirez
committed the crimes for the benefit of a criminal street
gang. (§ 186.22, subd. (b).) Upon a defense motion
during trial, judgment was entered for defendants on count 2.
At trial, Pedro testified that, after he asked for his phone
back, it was Ramirez who threw the first punch. Ramirez swung
and missed. Then, as Ramirez was saying that Pedro should
leave because Ramirez's friends were crazy, someone hit
Pedro in the back and kicked his legs out from under him,
causing him to fall. His glasses fell off. On the ground, he
felt blows all over his body. He covered his face with his
hands. Blows landed on his chin and cheeks. His head struck
the ground. While one attacker was punching Pedro's face,
another was kicking him. All three attackers were striking
Pedro, but he could not say which attackers delivered
particular blows because he was covering his face. Finally,
they took his wallet from his pants and left.
When Pedro ran away from the bridge and found a police
officer, his chin hurt and he was holding it. At first, Pedro
found he could not fully explain to the officer what had
happened because he was in shock. The officer asked Pedro if
he wanted to go to the hospital, but Pedro said no because he
thought it would cost money. After being taken to the police
station, he recovered his composure and told the story of the
Pedro testified that he did not hear his attackers say
anything about gangs and did not see them make gang signs
with their hands. Ramirez, however, was wearing a shirt Pedro
considered to be gang clothing because he had often seen gang
members wearing the same type of shirt.
McFarland Police Officer Brian Wilson testified that he and
Officer Arturo Garcia encountered Pedro near the pedestrian
bridge after the robbery. Pedro made an initial statement at
the scene and was taken to the police station. Wilson did not
observe any injuries or marks on Pedro, and Pedro did not ask
for medical treatment.
Wilson testified that he showed Pedro two photographic
lineups at the police station. Pedro selected pictures of
Abelar and Ramirez and said they were two of the robbers.
Officer Garcia testified that he and Wilson interviewed Pedro
at the police station within 30 to 45 minutes after first
making contact with Pedro. The interview was recorded and
portions of it were played for the jury. Pedro told the
officers that, first, Ramirez punched him in the face with
both hands. The third attacker then punched him in the chin.
Next, Pedro dropped to the ground, and Abelar came up and
kicked him on the leg. The third attacker kicked Pedro's
other leg and then all three kicked him. Ramirez punched
Pedro in the face again and made his head hit the ground.
Pedro said, “[T]hat's when its like I can[']t I
couldn't think no more.” The three attackers
continued punching Pedro. They were asking him his name and
going through his pockets. He was afraid for his life and
said they could take his money if they did not hurt him.
Ramirez and Abelar were interviewed by Sergeant Steven Nieves
on January 3, 2013. The interviews were recorded and the
recordings were played for the jury. At first, Ramirez denied
knowing Abelar and said he was at home on the night of the
robbery and knew nothing about a crime that happened on the
pedestrian bridge. Later in the interview after a break,
however, Ramirez admitted he was present at the robbery with
Abelar and a person known as Mosco, whose real first and
middle names were Moses Miguel. He said he beat up the
victim, but he denied he ever had the phone or the wallet. He
admitted he asked the victim for money and received $2 from
him. Abelar took the phone from the victim and told Ramirez
to hit him. Ramirez did not want to hit him, but when the
victim said he would not give up his phone, Ramirez
“got offended” and delivered a blow. Ramirez only
hit the victim once. He bought himself a beer with the $2 on
the way home.
Abelar told Nieves he was a member of the Myfas gang and had
been since he was 10 years old. Abelar was wearing a belt
buckle bearing the letter M, which he told Nieves stood for
Myfas. He admitted he was walking with someone named Moses
Miguel on the pedestrian bridge on the night of December 30,
2012. Abelar did not admit he was involved in the robbery and
did not mention Ramirez.
Nieves testified as the prosecution's expert on criminal
street gangs. He said Myfas was the main gang in McFarland.
While on duty, over the course of a number of years, he had
talked with Myfas members often. The area around the
pedestrian bridge where the robbery took place was part of
the Myfas territory, and Nieves had often seen Myfas members
on the bridge. He had often seen Myfas graffiti there, and
fresh Myfas graffiti appeared there frequently.
Nieves explained that one of the two main groups of Hispanic
street gangs in California is the Sureño (southern)
group, and this group is affiliated with and receives orders
from the prison gang known as the Mexican Mafia.
Sureño gangs associate themselves with the letter M
(for Mexican Mafia), which is the 13th letter of the
alphabet, and also with the number 13. They wear blue and
make distinctive hand signs. Nieves testified about a
photograph showing some graffiti on a wall in McFarland. He
pointed out the word “sur” (south); a pattern of
three blue dots representing the number 13; an X (the Roman
numeral 10) and a three together, to make 13;
“ST” for sur trece (south 13);
“MYFA”; and “VMST” for “Varrio
Myfas Sur Trece” (neighborhood Myfas south 13).
“Baby Boy, ” the moniker of a Myfas member, also
appeared as part of the graffiti, as well as “187,
” the Penal Code section defining murder. Nieves also
testified about a photograph showing similar graffiti on the
pedestrian bridge where the robbery took place.
Nieves said there were around 50 to 65 Myfas members, some in
prison and some out. He named several individual Myfas
members of whom he was aware. He opined that the primary
activities of Myfas included vandalism, robbery, criminal
threats, assault, home invasions, vehicle thefts, burglaries,