United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
Richard Seeborg, United States District Judge.
Ortiz Perez seeks federal habeas relief from his state
convictions. For the reasons set forth below, the petition
for such relief is DENIED.
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.
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.
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.
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
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
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.
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
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
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