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Sanchez v. Spearmen

United States District Court, E.D. California

September 7, 2017

ALEJANDRO SANCHEZ, Petitioner,
v.
M. E. SPEARMAN, Warden, Respondent.

          ORDER SUMMARILY DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         Petitioner filed the instant federal petition for writ of habeas corpus challenging his 2013 conviction.[1] Because it is clear from a review of the petition and the state appellate decision that Petitioner is not entitled to relief, the Court will SUMMARILY DENY the petition.

         I. PROCEDURAL BACKGROUND

         On April 9, 2013, Petitioner was convicted in the Merced County Superior Court of the attempted murder of his stepfather (Cal. Penal Code §§ 187(a), 664). People v. Sanchez, 2016 WL 280301, at *1 (Cal.Ct.App. 2016), as modified on denial of reh'g (Feb. 10, 2016).[2] In addition, the jury found true allegations that Petitioner personally discharged a firearm causing great bodily injury (Cal. Penal Code 12022.53(d)), that the attempted murder was willful, deliberate, and premeditated (Cal. Penal Code § 189), and that he personally inflicted great bodily injury (Cal. Penal Code § 12022.7(a)). Id. In a bifurcated proceeding, the court found true allegations that Petitioner had suffered a prior serious felony offense within the meaning of California's Three Strikes law (Cal. Penal Code §§ 667(b)-(i), 1170.12). Id. Petitioner was sentenced to a term of life with possibility of parole, doubled, for the attempted murder count, and a consecutive sentence of 25 years to life for personally discharging a firearm causing great bodily injury, plus a consecutive term of one year for the prior prison term enhancement. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (hereinafter “Fifth DCA”). On January 22, 2016, the Fifth DCA remanded the matter to the trial court to correct a clerical error in the abstract of judgment; in all other respects, judgment was affirmed. Id. Petitioner filed a motion for rehearing, and the motion was denied on February 10, 2016. Id. Petitioner later filed a petition for review in the California Supreme Court, and the petition was denied on December 14, 2016, with citation to In re Dixon, 41 Cal.2d 756, 759 (1953), and In re Lindley, 29 Cal.2d 709, 723 (1947). (Doc. 1 at 2.) On May 15, 2017, Petitioner filed this petition for writ of habeas corpus.

         II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision:[3]
In August 2011, defendant began living in Los Banos with Cynthia Ramos, his mother, and Rito Ramos, his stepfather. Rito [FN2] had been defendant's stepfather since defendant was six years old. Rito let defendant use a 1997 Ford Ranger pickup truck, gave defendant his credit union debit card, and deposited $30 a week into the account for gasoline. After moving into his parents' home, defendant deposited about $1, 600 in checks in the credit union account and withdrew the funds. The credit union contacted Rito because there was a problem with the checks defendant had deposited. Defendant assured Rito he had worked for the money and would straighten things out with the person who gave him the checks. Defendant said he would “pay back the bank.”
[FN2] To avoid confusion, we refer to members of the Ramos family by their first names. No disrespect is intended.
Rito made arrangements with the credit union to pay $200 a month. Defendant was present. Rito told defendant he was going to have to pay the money. Defendant said he would get a job. Rito arranged to start the payments to the credit union in January 2012. [FN3]
[FN3] Hereafter, all dates refer to the year 2012.
Rito and Cynthia worked in the San Jose region, commuted with defendant, and usually left for work between 5:30 and 5:45 a.m. Defendant went to a trade school in Milpitas.
Prior to leaving the home the morning of February 1, defendant and Rito got into an argument. The registration on the Ford Ranger pickup truck was coming due, the truck had to pass a smog test, and it also needed a new clutch. The expenses were too much for Rito and he told defendant he was going to sell the truck to a junkyard. Rito asked defendant for the key to the truck. Defendant became angry. Cynthia told her husband and son to stop arguing. Rito and defendant argued about Rito's plans for the truck and about the money owed to the credit union. Defendant said he had no money.
Rito, Cynthia and defendant went outside. Rito told defendant he had to have the money owed “tonight ... so [Rito] could pay the credit union or else.” Defendant asked Rito if he was making a threat. Rito replied “Yeah, you better have the money.” Rito closed the front door to the house. Rito turned around to face defendant, defendant pulled out a handgun and started firing it at Rito from a distance of eight to 10 feet. Rito was “pinned against the door.” Rito heard seven shots. Five of the bullets hit him. Two bullets entered the front door in front of, and behind, Rito. Rito had bullet wounds to his “pinkie, ” another finger, his right side, and his back. Two bullets grazed Rito's head. [FN4] At one point, defendant moved forward and put the gun to Rito's head. Rito believed defendant “ran out of bullets.”
[FN4] Dr. Fereydoun Azadi, a trauma surgeon, operated on Rito's bullet wounds. Azadi described four bullet wounds: to the back of Rito's head, to the upper back of the chest, to the left side of the chest, and to the left hand of the fifth finger. According to Azadi, Rito would have died if his injuries had been left untreated. Two bullet fragments were left in his body.
Rito was hospitalized for two to three weeks. According to Rito, the doctors “cut [him] open” from his chest cavity to his belly button. He suffered a lot of pain post-surgery.
Defendant ran to the driver's side of the family truck and told Cynthia, “Come on, mom. Let's go.” Cynthia removed the keys from the truck. Cynthia saw defendant run toward the south. She called the 911 operator, reported the shooting, and said she thought defendant was in the backyard. Cynthia told an investigating officer that Rito told defendant prior to the shooting that “they could handle the situation today ... [t]hat he could leave today.”
Officers from the Los Banos Police Department responded to the 911 call. They found defendant walking on his parents' street. A .22 caliber Ruger was found in the street near the shooting and turned over to the police. The gun appeared to be scratched from the road or from a vehicle running over it. The ammunition magazine was empty, but there was one bullet in the chamber. The firing pin from the gun matched the firing pin indentation from four of the spent shell casings found at the scene of the shooting. The gun's serial number had been deliberately obliterated, something usually done to conceal the fact the weapon had been stolen. Two .22 caliber rounds were found in defendant's bedroom.
Defendant's sister, Jessica Ramos, testified that defendant and Rito had a few talks about defendant's debt, but they did not lead to arguments. A few days before the shooting there was a birthday party for defendant. Defendant was acting distant from the family and isolating himself. Defendant acted this way when he was using drugs. Jessica thought defendant may have used methamphetamine prior to the shooting. Jessica had no experience or training in recognizing when someone was under the influence of drugs, including methamphetamine. Jessica never saw defendant use methamphetamine. Jessica assumed defendant was using methamphetamine because he had been arrested for possessing it in the past. Between January 29 and February 1, defendant did not appear delusional to Jessica. He just stayed away from the family. Jessica let Rito into the house after he had been shot. Rito slumped to the floor with blood coming out of his head. Cynthia told Jessica that defendant shot Rito.
February 1 was a Wednesday. Cynthia told Detective Anthony Parker defendant had used methamphetamine the previous Thursday or Friday. She testified at trial, however, that she told investigators she thought defendant was under the influence of methamphetamine at the time of the shooting.
Parker was one of the investigators assigned to the shooting and had training on how people use methamphetamine. Parker had seen people under the influence of methamphetamine. On February 1, Parker observed defendant for two hours as defendant sat across a table from him after his arrest. ...

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