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Covarrubias v. Spearman

United States District Court, S.D. California

September 9, 2019

SANTIAGO COVARRUBIAS, Petitioner,
v.
M.E. SPEARMAN, Warden, Respondent.

          REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          Hon. William V. Gallo United States Magistrate Judge

         On March 15, 2019, Petitioner Santiago Covarrubias filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his criminal conviction of first-degree murder under California Penal Code § 187(a), along with a finding of personal use of a firearm under California Penal Code § 12022.53(d), and the subsequent sentence imposed for fifty years-to-life in state prison.

         Petitioner claims (1) there is insufficient evidence corroborating his accomplice's testimony; (2) the trial court erred by admitting evidence of his ex-girlfriend's “equivocal” identification of him when she was shown security footage by police; (3) the trial court erred by allowing a detective to opine on similarities between the suspect's description, photographs of the suspect, and the composite sketch; and (4) there are sentencing errors consisting of correcting the abstract of judgment for a clerical error and remand for resentencing in light of new legislative authority that allows for broader trial court discretion with respect to striking firearm enhancements.

         Respondent contends that there is no basis for habeas relief because (1) corroboration of accomplice testimony is not a federal claim; (2) and (3) admission of evidence is not a federal claim for which relief may be granted because the Supreme Court has not yet addressed the admission of evidence, even prejudicial evidence; and (4) Petitioner was already granted relief as to the sentencing errors by the state courts.

         For the reasons set forth below, the Court RECOMMENDS the Petition be DENIED.

         I. BACKGROUND

         A jury found Santiago Covarrubias guilty of first-degree murder with an attendant personal gun enhancement. See Cal. Penal Code §§ 187(a), 12022.53(d). The trial court sentenced Covarrubias to a term of 50 years-to-life in prison. Covarrubias appealed, raising the same claims in the state court that he raises now. The California Court of Appeal rejected Claims 1-3 and granted appropriate relief for Claim 4. The California Supreme Court summarily denied Covarrubias's petition for review without comment.[1]

         This Court gives deference to state court findings of fact and presumes them to be correct unless Petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35 (1992) (holding that findings of fact are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal's opinion on Petitioner's direct appeal, affirming the judgment of the trial court:

Murder and Initial Investigation
Damon Green and D.B. were coworkers and friends. After an evening at a nightclub, the two men stopped to eat at a taco shop in a small shopping center in the Mid City area around 1:30 or 2:00 a.m. on March 20, 2007. D.B. observed a group of four Hispanic males enter the taco shop. Two of them left immediately, while the other two ordered food and sat at the table next to D.B. and Green. Green struck up a conversation with one of them, whom D.B. later described as “the shooter.” D.B. and the shooter's friend mostly sat quietly during the conversation.
The conversation started off friendly, but became more intense. Green and the shooter discussed the fact they were both fathers, and Green expressed his view that people should learn Spanish because “Spanish is the future, and stuff like that.” D.B. saw that the shooter “was getting agitated and irritated, ” and “felt intimidated and disrespected” by Green's size-6'3” and 272 pounds. D.B. apologized to the shooter on Green's behalf and told Green to leave him alone.
The shooter asked Green where he was from, and Green responded he was from Wyoming or Montana. Green was just “messing with” him. Green asked the shooter where he was from, and “the shooter said he was from right here, ‘you know, man, I'm from East Diego.'” At the time, this did not “trigger” D.B.to think about gangs, but he later testified at trial that he understood the shooter to be indicating he was a member of the East San Diego criminal street gang. This concerned D.B., who told Green, “It's time to go.” But Green kept talking to the shooter, asking whether he dealt drugs. The shooter responded, “yeah, you know, I do what I got to do.” Green asked if the shooter had any drugs with him, which made the shooter “real agitated and upset” that Green was “being nosey.” Green then asked the shooter for some drugs, which prompted the shooter to standup and reply, “Okay, I'll go get some.” D.B. did not think the shooter was going to get drugs; he thought he was going to get a gun. D.B. told Green, “It's time to get out of here, “but Green wanted to get a slushy drink at the donut shop next door. D.B. warned other people in the taco shop to get out. D.B. got in his car and honked at Green, telling him, “Come on, let's go.” After a few minutes, D.B. saw the shooter and his friend walk around from behind the donut shop. As Green exited the donut shop, the shooter confronted him with a gun and said, “I got the shit right now . . ., what's up.” Green ran back inside the donut shop and slammed the door, but the shooter shot through the glass door and ran in after Green. The shooter fired four or five shots as Green ran to hide behind the counter. After the shooting, the shooter left through the broken glass window and ran with his friend in the direction they had come. Security cameras in the donut shop recorded parts of the incident.
D.B. ran inside the donut shop and called 911. Green was bleeding, unconscious, and “[h]is eyes looked like he was dead.” Green died from gunshot wounds to his buttock and thigh, which severed his femoral artery and femoral veins.
At the crime scene, D.B. described the shooter to police as a Hispanic male in his early 20's, measuring about 5'8” tall, and weighing about 220 pounds. He had a shaved head and a small goatee, and was wearing Converse shoes, blue pants, a long-sleeve white shirt with vertical stripes, a baseball hat, and a “flashy” diamond earring in at least one ear.
D.B. described the non-shooter to police as a Hispanic male in his early 20's who was “approximately the same height” as the shooter, but about 20 pounds lighter. The friend also had a shaved head, and he wore white Converse shoes, blue jeans, and a short-sleeved t-shirt. D.B. also said the non-shooter had “crooked” teeth that were “wedged together.” D.B. told police he would be able to identify the shooter, so a detective showed him a photo lineup of potential suspects. D.B. circled and initialed one of the photos, and told the detective he was “100% sure that that looks like the guy/same face-none of the others match.” However, the person whose photo he circled was incarcerated at the time of the murder. D.B. clarified at trial that he “[wasn't] identifying him as the shooter, but [as] someone that looked like him.” (Italics added.) D.B. worked with a detective to develop a composite sketch of the shooter, which was admitted in evidence at trial.
Police interviewed the donut shop employee who was working when the shooting occurred. The employee said he could not identify the shooter because he (the employee)dropped to the floor when the shooting started outside the donut shop. After the shooting, he saw two “20-something” Hispanic males run north. One of the men had a “medium build, ” a beard that “came down the side of his face and then around to the front, “combed-back hair, and he was wearing a baseball cap. The other man was also wearing a baseball cap.
Police also interviewed the taco shop employee who was working the night of the shooting. He told police he took the Hispanic men's food order that night, that they ordered in English and Spanish, “but their Spanish wasn't very good.” The employee said he is 5'7”tall, and the Hispanic men “were just slightly taller than” him, maybe 5'8”or 5'9, ”and “appeared young.” At trial, the employee testified on direct examination that he did not take the Hispanic men's order (he only cooked their food), and he was never “in a position where [he] could see how tall they were.” The employee testified the suspects never returned to the taco shop, and Covarrubias was not one of them.
The taco shop employee directed police to the trash left by the two Hispanic men. Forensic technicians processed the trash remains for DNA and obtained a sample, but it generated no immediate hits in the CODIS database. Technicians also processed the taco shop's glass front door for ...

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