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Salas v. McDowell

United States District Court, E.D. California

March 30, 2018

BENITO SANCHEZ SALAS, Petitioner,
v.
NEIL McDOWELL, Warden, Respondent.

          FINDINGS AND RECOMMENDATION THAT THE COURT DENY PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Petitioner, Benito Sanchez Salas, is a state prisoner proceeding, with counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner presents five claims for habeas relief: (1) insufficient evidence of specific intent to kill for the charge of attempted murder; (2) insufficient evidence of premeditation and deliberation for the charge of attempted murder; (3) insufficient evidence of premeditation and deliberation for the charge of first degree murder; (4) the first degree murder convictions were inconsistent, in violation of the Fifth, Sixth, and Fourteenth Amendments; and (5) ineffective assistance of counsel. Petitioner requested the Court hold an evidentiary hearing on his claims. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Having reviewed the record and applicable law, the undersigned recommends that the Court deny habeas relief and decline to hold an evidentiary hearing on Petitioner's claims.

         I. Procedural and Factual Background[1]

         This case arises out of an altercation between members of two families, the Mendez family and the Salas family, who lived on the 4600 block of East Turner Avenue in Fresno. Petitioner is a member of the Salas family. The Mendez family, Maria Arceli Mendez (“Maria M.”) and her husband, Jose Mendez (“Jose M.”), lived at 4677 East Turner Avenue with their children. The Salas family lived two addresses directly east of the Mendez family residence. Petitioner lived in the guest house of 4681 East Turner Avenue. Petitioner's father, Alberto Salas, Sr. (“Alberto S.”), his mother, Maria Nativad Sanchez (“Maria S.”), and one of Petitioner's brothers lived in the main house at 4681 East Turner Avenue. Two of Petitioner's brothers, Fabian Salas (“Fabian S.”) and Antonio Sanchez Salas (“Antonio S.”) and a nephew lived at 4687 East Turner Avenue.

         The Mendez and Salas families had been neighbors for years, but the relationship between the families began to deteriorate in late 2008 or early 2009 largely due to problems between a Mendez son and Fabian and Antonio S. On March 8, 2009, a fight broke out between Fabian S. and a Mendez son and ended with Petitioner becoming involved and hitting and kicking Jose M. The Mendez son was hospitalized after Antonio S. struck him in the head. During this fight, the police were called, but no arrests were made.

         At trial, Petitioner testified that on March 8, 2009, he was sitting on his front porch and saw Fabian S. exchange words with members of the Mendez family. The individuals began fighting. During the fight, Jose M. threw a beer bottle at Petitioner, who was standing next to Alberto S, Petitioner's father, which caused Petitioner to join the fight. Petitioner knocked Jose M. down and Jose M. threatened Petitioner, stating he was going to kill Fabian S., Alberto S., Maria S., and Petitioner.

         Feeling threatened after this fight, Petitioner borrowed a gun from a friend. Petitioner stored the gun in his house, but later hid it in a cabinet in his mother's, Maria S.'s, kitchen.

         After the fight, Maria M. unsuccessfully attempted to obtain a restraining order against Petitioner, Fabian S., and Antonio S. Trouble between the families continued and the Mendezes called the police on multiple occasions.

         On June 11, 2009, children from both families participated in an elementary school graduation. Members of each family were present at the ceremony. After the ceremony, Fabian S. approached a Mendez son and the two began arguing. Fabian S. called the son names and threated him, telling the Mendez son he was going to kill him and he should “watch” when he got home. Maria M. called the police, and Fabian S. accused her of being a snitch.

         After the graduation ceremony, Maria M. arrived home with several of her children, planning to hold a barbecue to celebrate her daughter's graduation. Fabian S. and his parents, Alberto S. and Maria S., were standing in front of the Salas home when Maria M. arrived, but did not engage with her. However, when Jose M. arrived home, Fabian S. insulted him and told him “I'm going to fuck you guys all up. You guys are done.” Jose M. refused to fight with Fabian S. and told him to calm down. Maria M. called the police, who arrived, talked to both families, and left.

         Once the police left, Fabian S. yelled at the Mendezes, called them names and tried to get them to come outside of their house to fight. While standing on his front porch, Fabian S. waived a gun around and told Jose M. that the gun was for him. Maria M. called the police again. Officers arrived, spoke with the Salases, and then told Maria M. everything was going to be fine, her family should continue their barbecue, and police would be patrolling the area.

         The Mendezes continued their barbecue. Family members and friends arrived and entered the backyard for the barbeque. After eating, many of the Mendez family and friends moved to the front yard to talk and watch their children play.

         Due to the large number of individuals involved in the events and the chaos surrounding the events on that day, witness testimony varied as to what happened once the Mendezes moved from the backyard to the front yard of the Mendez family home. The Court will summarize relevant witness testimony.

         Several Mendez family members saw Petitioner's father, Alberto S., arrive at the Salas house either carrying a gun, or carrying a bag that the Mendezes suspected contained guns.[2]After Alberto S.'s arrival at the Salas family house, members of the Mendez family and the Salas family started arguing in the street. Members of the Mendez family claimed to see Antonio S. holding a gun during this argument, while others claimed to see Fabian S. holding a gun.

         Juan Mendez (“Juan M.”) asked for Fabian S. to put the guns down and “fight like a man.” Fabian S. replied, “fine, we'll fight, ” and handed his gun to Antonio S. Fabian S. lunged towards Jose M., the two started fighting, and others joined in. Shortly after the fight began, shots were fired.

         According to one witness, after the fight began, Petitioner shot into the air approximately four times as he walked toward the crowd. As Petitioner walked toward the street where the crowd was gathered, the Mendez family moved toward him, looking angry. The Mendez family surrounded Petitioner, he fired the gun, and two people dropped to the ground.

         By contrast, Maria M. testified her husband, Jose M., was on top of Fabian S. when Antonio S. came up and shot Jose M. and another Mendez family member, Pablo Mendez (“Pablo M.”). Antonio S. then handed Petitioner the gun. Petitioner immediately began firing “at all the people.” While Petitioner was firing, his mother, Maria S., yelled at her sons to kill everybody, including Maria M., and not let anybody live.

         A different witness saw Fabian S. hovering over one of the Mendezes, hitting him, when Petitioner ran up with a gun. Petitioner was “shooting all over the place” as he ran.

         During the shooting, a Mendez family guest, Hector Balladeres (“Hector”), retrieved his shotgun from his vehicle. Hector saw two people with guns and heard three shots, but did not see who fired them. Hector heard someone say “Shoot the mom” or “Get the mom, ” then saw Petitioner trying to shoot first Eulalia Mendez (“Eulalia M.”) and then Juan M. Wanting to stop Petitioner from firing his gun, Hector fired his shotgun up into the air.

         In sum, witness accounts varied as to whether Antonio S. shot Jose M. and Pablo M. and then handed the gun to Petitioner, or whether Petitioner shot Jose M. and Pablo M himself. Nonetheless, after Jose M. and Pablo M. were shot, witnesses saw Petitioner trying to shoot Eulalia M. and then Juan M, as the two tried to help victims of the shooting.

         Eulalia M. saw Antonio S. shoot Jose M. and Pablo M. As Jose M. lay on the ground, Eulalia M. ran to him, and heard Maria S. say “kill the mother, ” referring to Maria M. Eulalia M. saw Petitioner pointing a gun at her. As he fired, Eulalia M. turned her head, and the shot flew by her, between her shoulder and her ear.

         Juan M. was lying face down on the ground when he heard three shots and then a big boom. He looked up and saw people running everywhere and Pablo M. lying next to him. As Juan M. got up from the ground, he saw Petitioner point a gun at him. He looked away, heard a bang, and thought he was hit, but he was not. He did not remember if Petitioner specifically fired at him, but Petitioner was firing towards all the people at the Mendez home. Juan M. later told police that Petitioner shot at him, but Juan M. ducked and was not hit.

         Officers arrived after receiving a report of men arguing, and were led by members of the Mendez family to Petitioner, who was standing in the front yard of the Salas house, without a weapon. A gunshot residue examination that was subsequently conducted on Petitioner was consistent with Petitioner having fired a firearm.

         Jose M. and Pablo M. died from their gunshot wounds. Pablo M. was shot in the left side of the head. A bullet also grazed the left side of his back. Pablo M.'s cause of death was listed as “perforation of the brain due to gunshot wound to the head.” Jose M. suffered a gunshot wound to the left frontal region of his head. His cause of death was listed as “penetration of the brain due to gunshot wound to the head.”

         At trial, Petitioner testified that on June 11, he arrived home after running some errands and spoke to Fabian S. about the confrontation Fabian S. had with members of the Mendez family at the elementary school graduation. Later in the afternoon, Petitioner noticed a lot of male family members and friends at the Mendez house, which concerned him based on the volatile history between the two families.

         That evening, Petitioner walked out of the Salas family home and saw a group of 40 people he believed were heading to the Salas family home to kill Alberto S. Petitioner also saw Fabian S. in the middle of the street with seven to eight people surrounding him. The group was arguing and appeared ready to fight. Petitioner did not see anyone with a weapon, and walked toward the group that was arguing. As Petitioner got closer to the group, he noticed a male with what Petitioner believed was a rifle, walking by the cars.[3]

         Afraid for Fabian S.'s life, Petitioner ran back to the Salas house and grabbed the gun he had previously stowed in Maria M.'s kitchen cabinet. As Petitioner ran back outside, he fired two or three shots in the air. Looking for the individual with the rifle, Petitioner saw Fabian S. being beaten up and fired at Jose M. and another individual who was kicking Fabian S. Petitioner believed he fired five or six rounds at the people beating up Fabian S., but he wasn't sure as to the exact number of times he fired, because he “was just shooting.”

         After firing his first five or six shots, Petitioner told everyone to get back and panned the gun so people knew he was serious. Petitioner did not want anyone around him and was looking for the man with the rifle.

         As Petitioner was panning the gun, he saw the man with the rifle. The man came from behind Hector's truck, lifted the rifle, and fired it at Petitioner. Petitioner fired back three or four times in the direction of the man. Petitioner believed he may have fired one or two more shots afterwards, but did not remember firing at Eulalia M. or Juan M.

         Petitioner stated if he had not started shooting, Fabian S. would have died. Petitioner did not know where Antonio S. was at the time of the shooting, but did not believe Antonio S. had a gun.

         After the shooting, Petitioner ran to Antonio S.'s house and hid the gun in the back of the garage. Petitioner came back out into the front yard when police officers arrived and turned himself in.

         Antonio S. testified that he was not able to attend the graduation ceremony, because he was working, so Fabian S. attended in his place. Fabian S. telephoned Antonio S. several times during the course of the day to tell Antonio S. that Fabian S. was having problems with the Mendez family.

         When Antonio S. arrived home that evening, his son told him that the Mendez family was beating up Fabian S. Antonio S. grabbed his gun and ran outside. As he was running out of his house, he heard shooting. Antonio S. saw a group of people and smoke when he got outside, but did not see who was shooting or know if anybody was shot. Antonio S. threw his gun in the garage and ran away from the scene with his son. He did not stay to find out what was happening, because there were a lot of people around and he did not know who was shooting. The day after the shooting, someone told Antonio S. that the police were looking for him, so Antonio S. turned himself in to the police.

         Antonio S. denied shooting anyone or passing a gun to Petitioner. Antonio S. stated that he and Petitioner “didn't talk” and did not have any kind of relationship. Antonio S. was unaware that Petitioner had a gun.

         A jury convicted Petitioner of the first degree murders of Jose M. and Pablo M. (Cal. Penal Code § 187(a)); and the attempted premeditated murders of Eulalia M. and Juan M. (Cal. Penal Code §§ 187(a), 664).[4] As to the murder counts, the jury found true a multiple-murder special circumstance (Cal. Penal Code § 190.2(a)(3)). As to all counts, the jury found Petitioner personally and intentionally discharged a firearm (Cal. Penal Code § 12022.53(c)). Petitioner was sentenced to two consecutive terms of life in prison without the possibility of parole, plus two consecutive terms in prison with the possibility of parole, plus 80 years.

         Antonio S. was jointly charged with Petitioner on the murder counts, and was alleged to have personally and intentionally discharged a firearm, proximately causing death (Cal. Penal Code § 12022.53(d)). Antonio S. was also charged with the attempted premeditated murder of a Mendez family friend. At Antonio S. and Petitioner's trial, the jury was unable to reach a verdict on any of the charges against Antonio S., and a mistrial was declared.

         On December 16, 2013, the California Court of Appeal for the Fifth Appellate District affirmed Petitioner's conviction. On March 5, 2014, the California Supreme Court denied Petitioner's Petition for Review.

         On May 18, 2015, Petitioner, through counsel, filed a petition for writ of habeas corpus before this Court. Respondent filed a response on August 17, 2015, and Petitioner filed a reply on September 2, 2015.

         II. Standard of Review

         A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed after April 24, 1996.

         Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams ...


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