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Granados v. Montgomery

United States District Court, S.D. California

July 22, 2019

ROBERT JOAQUIN GRANADOS, Petitioner,
v.
W.L. MONTGOMERY, Warden, Respondent.

          ORDER: (1) DENYING HABEAS CORPUS PETITION; AND (2) DENYING CERTIFICATE OF APPEALABILITY

          Hon. Gonzalo P. Curiel, United States District Judge

         I. INTRODUCTION

         Petitioner Robert Joaquin Granados, a state prisoner proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”), challenges his conviction for assault with a deadly weapon, attempted murder, active participation in a criminal street and criminal street gang and true findings regarding weapons allegations in Riverside Superior Court case no. RIF1100160. The Court has read and considered the Petition [ECF No. 1], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF Nos. 8, 8-1], the lodgments and other documents filed in this case, and the legal arguments presented by both parties.[1] For the reasons discussed below, the Court DENIES the Petition.

         II. FACTUAL BACKGROUND

         This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The state appellate court recounted the facts as follows:

1. The Scott F. Incident, November 23, 2010, Count 1
On November 23, 2010, at approximately 5:30 p.m., Scott F.'s mother and sister returned to his mother's apartment with groceries, which Scott helped unload. Scott lived with his mother in an apartment in the complex, and his sister Sarah M. lived in a different apartment in the same complex. As Scott brought in the groceries, he was passed by a group of Hispanic males, walking single file. He squinted trying to recognize them. The last person to pass him said something to him about mad-dogging them, and then stabbed Scott from behind.
Sarah M. heard her brother scream that he had been stabbed and called 911. She was familiar with defendant because her oldest brother was a friend of defendant's. In the 911 call, which was played for the jury, defendant was identified as the person who stabbed Scott. Officer Ditty responded to the scene and contacted Sarah, who was reluctant to speak out of fear of retaliation. However, at that interview, she eventually disclosed that it was defendant who stabbed her brother. At trial, she did not remember her brother telling her who had stabbed him, or telling police she was afraid of retaliation.
In the hospital, Officer Cruz contacted Scott, who gave a summary of the incident as described above. Officer Cruz asked if defendant was the person who stabbed him, and Scott answered in the affirmative after first stating he did not know who stabbed him. Scott had known defendant for most of his life. He picked defendant's picture out of a photographic lineup while still in the hospital. He also recognized one of the other people with defendant as defendant's uncle, Ali.
At trial, Scott testified he did not get a good look at the person and did not know who stabbed him. He did not recall identifying defendant as the stabber, picking his picture out of the photographic lineup, or telling the officer he knew one of the other men in the group. However, he did recall hearing something about a threat after the incident.
While defendant was in custody, a letter was found during the execution of a search warrant at the residence of Carlos Montes, a member of the Northside Beaumont gang to which defendant belonged. The letter was dated February 13, 2011, and was signed by “Sicko.” [FN 3 omitted]. A gang expert testified that defendant's gang moniker was “Sicko.” In the letter, Sicko sought to have “Smoke” (Carlos Montes) and “Shorty” go with Sicko's dad to pay a visit to Scott with “Wacko” to scare Scott with a “strap” (gun).
Defendant was released on bail for the Scott F. incident on May 3, 2011.
2. The Willie D. Incident, October 15, 2011, Count 3
On October 15, 2011, Willie D. was at his ex-wife's house to act as security at a party for his son, Willie D., Jr. on Grace Street in Beaumont. There were approximately 50 to 100 people at the party, of different races and ethnicity. For the most part, it was a friendly party. But there was a group of Hispanics wearing hoodies off to the side. Shawnshana I. (Shawnie), a friend of Willie's daughter Sheree, was dancing near the group of Hispanics and bumped into one of them, resulting in an argument. Willie D., Jr. informed his father, Willie D., that some uninvited guests were present and there were arguments. Willie D., Jr., asked his father to ask the group to leave.
When he got outside, Willie D. saw a person wearing a tank top who was “huffing and puffing” and looking upset. Willie D. went up to the individual, later identified as defendant, tapped defendant on the arm, and asked defendant what was going on. Defendant was upset, so Willie asked defendant to leave. Defendant punched Willie in the face. Willie began fighting with defendant and was being hit from all sides. Willie was struck on the back of the head and in the face with the butt of a knife. [FN 4: Another incident occurred at the party, involving Ian R., who was stabbed after the altercation with Willie D., which formed the basis for count 2 of the second amended information. However, defendant was acquitted of that count.] He suffered a black eye and a gash on the back of his head. Shawnie told police she was three feet away and could see the man who struck Willie D. clearly.
Willie told Officer Ditty, who was dispatched to the scene, that the chubby Hispanic male who punched him also swung a knife at him; Willie did not mention other people behind him who swung a knife, except after he fell to the ground trying to dodge the knife. Willie D. told Officer Ditty at the scene that he could identify the attacker with the knife, so, based on other information obtained at the scene, Officer Ditty went to the police station and to prepare a six-pack photographic lineup. He showed the lineup to Willie in the kitchen of the house where the party had been held, in the presence of Shawnie. Willie pointed to defendant's photograph but was not a hundred percent sure. Shawnie pointed to defendant's picture and identified him by name.
At trial, Willie insisted that the person who struck him with the knife was someone other than the defendant. He denied telling Officer Ditty at the scene that the same person who punched him also pulled a knife on him. Also at trial, Shawnie denied personally being involved in the argument with defendant or that she personally saw anything, explaining that it was her friend Sheree who was involved, and that later, when Willie was shown the lineup, it was Sheree who got into the argument with the men who hit Willie D., and pointed out defendant's picture; Shawnie just relayed the information to the officer. Contrary to Shawnie's testimony that Sheree was present for the interview on the night of the incident, Officer Ditty testified that he interviewed Shawnie alone.
3. The Isidro F. Incident, November 1, 2011, Count 5
On November 1, 2011, Isidro F. was stabbed twice in the ribs and once in the bicep. Officer Velasquez responded to [the] scene where Isidro was lying on the ground, bleeding from his chest, moaning in pain. Officer Velasquez accompanied Isidro F. in the ambulance to the hospital because he was unsure if Isidro would survive. In the ambulance, Officer Velasquez asked Isidro F. who stabbed him, but Isidro stated he was not a snitch. The officer kept questioning Isidro in case Isidro died, until finally Isidro stated it was a “Southsider, ” referring to the South Side Beaumont gang. Officer Velasquez relayed this information to his watch commander at the police station.
As the officer relayed this information to the watch commander, Isidro volunteered that he was not a gangster, and then said something to the effect of, “You know who did this to me; Bobby, South Side Beaumont Fourth Street.” The officer continued to press Isidro for identifying information, but Isidro would not say defendant's last name, only that he “kicked it” with Eighth Street, referring to another gang, North Side Beaumont, that claimed Eighth Street. When asked if Bobby had family in Beaumont, Isidro explained that the whole city was his family, and Isidro described Bobby as being bald, and wearing a black tank top.
At the hospital, Officer Velasquez accompanied Isidro to the emergency room where he resumed questioning after Isidro had been stabilized. During this conversation, Isidro explained that he had been arguing with his girlfriend, who appeared to see something behind Isidro. Isidro was sucker-punched in the face, and then stabbed in the left side of his chest. When he dropped his arm to protect himself, he was stabbed in the bicep, but continued to fight a little until he felt a sharp pain on the left side of his body, at which point he collapsed. Isidro told Officer Velasquez it was a Granados. [FN 5 omitted.]
Officer Velasquez continued to press Isidro for information, asking him why defendant would stab him. Isidro explained it was a “beef” that [went] “way back” to a time which Isidro had accused defendant of raping a female, leading to a fight. Isidro believed the stabbing was done in retaliation. Based on all the information obtained from Isidro, which was relayed to the watch commander, a six-pack photographic lineup was prepared and brought to the hospital at about 1:30 a.m. Isidro pointed to defendant's photograph, but refused to circle or sign the lineup.
Other officers who had responded to the scene reported that defendant had run into an apartment complex. It was learned that defendant had a cousin, Ernie Granados, who lived in that complex. Because Ernie was on probation, the officers knew they could search his apartment without a warrant. The officers made entry to the apartment where defendant was observed; defendant jumped out of the second story window to the ground below, where he was pursued by other officers and taken into custody after a brief struggle. During the struggle, defendant was struck with an officer's knee on his left side and with a forearm on the side of defendant's face. A search of Ernie's apartment revealed a black tank top and a knife inside a shirt on the floor.
At the station, defendant was treated by paramedics in a temporary holding cell. During the paramedics' examination of defendant, one of them asked defendant if he knew why he was there. Defendant explained that he had stabbed someone and had run from the police. In the videotape of the contact, this statement by defendant is not audible.
At trial, Isidro did not recall anything about the incident, claiming he had been drinking heavily. Isidro also denied knowing defendant or defendant's family, being familiar with Beaumont gangs, or telling the officer that the stabbing was payback for accusing defendant of raping a woman. He also did not recall telling the police that he did not want to be a snitch, or identifying defendant from a photographic lineup.
4. Gang Evidence, Counts 4 and 6
Officer Liam Doyle, who had participated in defendant's apprehension at the apartment of Ernie Granados, testified as a gang expert. He described the origins of the North Side and South Side Beaumont gangs, as it devolved after a gang known as Los Midnighters split along the Interstate 10 Freeway or the railroad tracks just south of the freeway. In 2010 and 2011, both the North Side and South Side gangs were on friendly terms, but currently the two sides are at war.
The three incidents forming the basis for the charges against defendant took place in the territory of the two separate gangs. The incident involving Willie D. (and Ian R.) occurred in the territory of the South Side Beaumont gang, while the other two incidents occurred in the territory claimed by North Side Beaumont. Fourth Street was on the south side of the boundary, while Eighth Street was on the north side, and was a subset of South Side. Thus, Isidro F.'s statement referred to the fact that South Side and North Side were trans-territorial at the time.
The primary activities of the North Side Beaumont gang comprise violent felony assaults, thefts, robberies, attempted murders, assaults with deadly weapons, and vandalism. Gang members frequently go to other territories to commit crimes. As predicate crimes, the expert offered a prior conviction of Vincent Lucero, a member of North Side Beaumont, for assault by means likely to produce great bodily injury, with an enhancement for knife use, committed in 2010, and defendant's prior conviction for robbery with an enhancement alleging the robbery was committed for the benefit of a criminal street gang, in 2008.
The gang expert began to come across defendant in 2008. [FN 6 omitted.] Defendant has tattoos of “MDS” (for Midnighters) on his right tricep, as well as “NSB” (for North Side Beaumont) on his left tricep, and “B” for Beaumont on his chest. A photograph taken of defendant in 2011 shows the tattoos he had upon arrest. Between the time of defendant's booking in jail in 2011, and 2013, defendant acquired a new tattoo in his hairline, which says “Beaumont, ” while in custody.
Also, while defendant was in custody, a search warrant was executed on the house of another gang member, Carlos Montes, whose moniker is “Smoke.” In the course of that search, a letter dated February 13, 2011, sent by “Sicko” and addressed to “Smoke” [FN7 omitted] was found. Based on his tattoos, the letter sent to Montes, and the individuals defendant hung out with, as well as the fact he had a prior gang related robbery conviction, Officer Doyle was of the opinion that defendant was an active member of the North Side Beaumont gang in 2011.
Considering the hypothetical situation where a documented member of North Side Beaumont was walking with other Hispanic males, passed by a white male and said, “Don't be mad-dogging my homies, ” the gang expert was of the opinion that the assault with a deadly weapon of Scott F. was committed for the benefit of a gang.

(Lodgment No. 7, ECF No. 9-12 at 3-11.)

         III. PROCEDURAL BACKGROUND

         On June 12, 2015, the Riverside District Attorney's Office filed a six-count amended information charging Robert Joaquin Granados with two counts of assault with a deadly weapon, a violation of California Penal Code § 245(a)(1) (counts one and three), two counts of attempted murder, a violation of California Penal Code §§ 664/187 (counts two and five), and two counts of active participation in a criminal street gang, a violation of California Penal Code § 186.22(a) (counts four and six). (Lodgment No. 2 vol. 1, ECF No. 9-6 at 14-43.) As to count one, the information alleged Granados committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, within the meaning of California Penal Code § 186.22(b). (Id.) As to counts one, two and five, the information alleged that Granados personally inflicted great bodily injury, within the meaning of California Penal Code §§ 12022.7(a) and 1192.7(c)(8). (Id.) The information alleged as to counts two and five that Granados personally used a deadly weapon, within the meaning of California Penal Code §§ 12022.7(b)(1) and 1192.7(c)(23). (Id.) Count three alleged that the assault with a deadly weapon was part of a continuous course of conduct, within the meaning of California Penal Code §§ 667 and 1192.7(c)(31). (Id.) Finally the information alleged that Granados committed counts two through six while on bail, within the meaning of California Penal Code § 12022.1. (Id.)

         Following a jury trial, Granados was convicted of counts one and counts three through six. (Id. at 199-208.) The jury also found the allegations attached to those counts. (Id.) The jury acquitted Granados of count two. (Id. at 200.) Granados was sentenced to seven ...


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