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Ramirez v. Frauenheim

United States District Court, E.D. California

August 31, 2017

ERIK DANIEL RAMIREZ, Petitioner,
v.
S. FRAUENHEIM, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. PROCEDURAL HISTORY

         On July 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).

         Petitioner 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[1] 16, 17.)

         On 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. (Doc. 25.)

         II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision.[2]
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 robbery.
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, ...

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