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Perez v. Ducart

United States District Court, N.D. California

June 28, 2019

CLARK DUCART, Respondent.


          Richard Seeborg, United States District Judge.


         Ramon Ortiz Perez seeks federal habeas relief from his state convictions. For the reasons set forth below, the petition for such relief is DENIED.


         In September 2009, 16 year-old Perez stabbed to death Adam Esparza, a member of the Norteno gang. At the time, Perez was a member of Sur Santos Pride (“SSP”), a local Sureno street gang.

         On September 23, 2009, Perez was in a Jack-in-the-Box with fellow gang member Eduardo Yanez and gang affiliate, Felipe Luna. Perez had a three-dot tattoo next to his left eye identifying him as a Sureno. Perez and his friends were waiting for their food when Esparza, entered with his friend Robert Lee. Lee was a member of the “Crips” gang. Perez recognized Esparza was a member of the Norteno gang because of the amount of red he was wearing. Esparza saw Perez's tattoo and started laughing. He proceeded to “throw the four” at Perez and his friends to represent he was a Norteno. (Ex. 14 (State Appellate Opinion) at 3.) Esparza walked past Perez saying “[o]h scrap. Scrap, ” a derogatory term for Surenos. (Id.) According to Yanez, Perez and the group let the insults go because they thought “[h]e's a little kid.” (Id.) Esparza then left the restaurant, pulled something out of the trunk of Lee's car, and returned to the restaurant wearing a red hat. Esparza continued calling Perez derogatory names and “mad-mugging” him. (Id.) Perez answered back calling Esparza “buster, ” a derogatory term for a Norteno. (Id.) Esparza continued calling Perez a “scrap.” Perez responded “Fuck that shit. Let's go outside dog.” (Id.) Perez and Esparza went outside with their respective friends. A fist-fight ensued between Perez and Esparza. Esparza was larger and gave Perez a bloody nose.

         After the fight, both parties claimed victory. Perez walked towards his friends who were heading back inside the restaurant. Esparza walked toward his car while taunting Perez for losing the fight. Perez then started walking toward the car, smiling despite bleeding from the face. Perez reached through the passenger window and grabbed a pack of cigarettes, claiming they were now his. Lee, who was now in front of the car, told Perez the cigarettes belonged to him. Yanez told Perez to return the cigarettes because “some Crips are cool with us.” Perez tossed the cigarettes on the front of the hood, appearing “kind of mad…and cool, just in between.” (Id. at 5.) Esparza got into the passenger seat of the car and continued to shout insults through his window while Perez started to head back towards the restaurant behind his friends.

         Perez turned, walked back, and stabbed Esparza quickly and repeatedly through the car window with a butterfly knife. Lee later told an investigating officer, Officer Dong, that Perez shouted “sur” during the stabbing. (Id.) Officer Dong described this as a way of “proclaiming who he's affiliated with” while he was stabbing Esparza. (Id.)

         Lee drove away as quickly as possible and found construction workers three-quarters of a mile away who called an ambulance. Perez remained in the parking lot for a few seconds before throwing the bloody knife onto the freeway and running away. Witnesses who saw Perez running away described Perez as having “a really stupid grin, kind of laugh.” (Id. at 6.) Police detained Perez the next day after a high-speed-mile-and-a-half vehicle chase through a residential neighborhood. Perez crashed the car, ran away, and was found hiding in a closet of a house he had broken into.

         Perez argued at trial he was guilty of the lesser offense of manslaughter, not murder. During the trial, Officer Gallardo testified on behalf of the prosecution. He testified to general background knowledge of SSP and the Surenos. Officer Gallardo also testified to case-specific details including knowledge of Perez's prior offenses based on hearsay not admitted by the court. Perez called Dr. Minagawa to testify on his behalf. Dr. Minagawa assumed Perez was part of the SSP street gang and testified to what Perez's tattoos meant. Dr. Minagawa also testified to the significance of symbols and phrases such as “Sur Trece.” Perez admitted at trial he was a member of SSP. Yanez, a witness called by the state, testified to violent confrontations between Surenos and Nortenos.

         On October 11, 2012, a jury found Perez guilty of second-degree murder and found true enhancements for gang activity and personal use of a knife in commission of the offense. Cal. Penal Code §§ 186.22(b)(1)(C), 187, 12022(b)(1); (Ex. 1 Clerk's Transcript (“CT”) at 1 CT 282-86.) In March 2015, Perez filed a petition for a writ of habeas corpus and a direct appeal of the judgment with the state court of appeal. (Ex. 6.) The court denied the petition and affirmed the conviction in September 2015. (Ex. 7.) Perez appealed both, and in January 2016, the California Supreme Court denied review of the habeas petition, but granted review of the conviction, deferring further consideration of the appeal pending its upcoming decision in People v. Sanchez, 63 Cal.4th 665 (2016). (Exs. 9, 10.) After Sanchez was decided, the court remanded the case to the court of appeal for reconsideration in light Sanchez. (Ex. 11.) In February 2017, the court of appeal reversed the gang enhancement and affirmed the judgment in all other respects. (Ex. 14.) The California Supreme Court denied review on May 10, 2017, and Perez filed this petition for writ of habeas corpus on November 2, 2017. In this petition Perez argues the jury instructions presented at trial were inadequate, and the Confrontation Clause violations during trial constituted prejudicial error.[1]


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the 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.” Id. § 2254(d). “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409.


         A. ...

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