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Perez v. Arnold

United States District Court, E.D. California

September 13, 2019

ALEX PEREZ, Petitioner,
ERIC ARNOLD, Respondent.



         Petitioner is a California prisoner who is represented by counsel in this habeas corpus action filed pursuant to 28 U.S.C. § 2254. Respondent has answered the habeas petition, ECF No. 10, and petitioner has filed a traverse. ECF No. 15. Upon careful consideration of the record and the applicable law, the undersigned recommends that the petition be denied for the reasons set forth below.

         I. Factual and Procedural Background

         Following a jury trial in the Solano County Superior Court, petitioner was convicted of three felony counts related to an alcohol-induced accident leading to the death of Moses Sala. ECF No. 11-1 at 174-181 (Verdict Forms). Petitioner was sentenced to 11 years in prison. ECF No. 11-1 at 269-270 (Felony Abstract of Judgment). The California Court of Appeal affirmed his convictions on December 22, 2016. ECF No. 11-5 at 69-81 (direct appeal opinion). Petitioner filed the pending habeas corpus petition on July 5, 2017. ECF No. 1.

         In affirming the judgment on appeal, the California Court of Appeal, First Appellate District, summarized the facts as follows:[1]

A. The Events of December 4-5, 2012[2]
On the evening of December 4, Stephen Coen was working as a bartender at Applebee's in Vacaville. His customers included petitioner who was there with some buddies. The group had been at the bar on prior occasions, and Coen chatted with them periodically. When Coen testified at trial, he could not recall what time petitioner arrived at the bar on December 4, but he estimated that petitioner was there for around an hour and a half. Petitioner paid his bar tab and left Applebee's at 11:45 p.m.
While petitioner was at the Applebee's bar, he consumed three or four 22-ounce Blue Moon beers and one shot of Jim Beam whiskey. Coen became concerned about petitioner's behavior after he got into a few “tiffs” with other patrons, and he told petitioner to “calm down and quit getting into confrontations.” While petitioner was outside attempting to “cool off, ” his friends decided it was time to leave. Coen told them that petitioner should not be driving. Coen testified at trial that petitioner appeared intoxicated when he left the bar.
Just before midnight, petitioner called his friend Hattie Mouzes to discuss her plans to visit him during the Christmas holiday. Mouzes knew petitioner was driving because she heard his truck's “really loud” engine. Mouzes could also tell from prior experience that petitioner had been drinking because his speech was animated and he was slurring his words. At least five times during their 5 to 10-minute conversation, Mouzes told petitioner to slow down and pull over to the side of the road. She became frustrated when he refused to comply with these requests and hung up on him. Approximately 10-15 minutes later, petitioner called back and told Mouzes that he had hit something.
Just after midnight on the morning of December 5, Fairfield police officer Keith Pulsipher was dispatched to the scene of an accident on Peabody Road, a two-lane road with one northbound lane and one southbound lane running between Vacaville and Fairfield. Visibility was poor that night; it was raining and the few streetlights on that stretch of the road caused a “glare, ” which “ma[de] it hard to see for any reasonable distance.”
At around 12:10 a.m., Pulsipher and his partner found a truck parked on the northbound shoulder of Peabody Road facing south. The truck had sustained moderate front end damage to the bumper, grill, hood and passenger side headlight. The driver's airbags had deployed and there were no occupants in sight. Because it appeared that the truck had been traveling south, the officers searched a 500-foot area north of where the vehicle was abandoned, but they found no explanation for the truck damage. A search of the VIN number showed that the truck was registered to petitioner's uncle and aunt, Albert and Maricella Gutierrez, whose address was in Vacaville.
On the morning of December 5, at approximately 12:16 a.m., Vacaville police officer Nichole King was dispatched to the Gutierrez home. Petitioner was at the house and asked why the officer was there. King responded that she had come to see whether petitioner was planning to retrieve his truck and he said that he was getting ready to do that. King asked if petitioner had been driving the truck. Petitioner said “no, he had a DD, ” meaning a designated driver. King expressed concern about the designated driver, but petitioner refused to disclose his or her identity. When King asked petitioner what he hit, he responded that he didn't know.
King testified that when she interacted with petitioner at the Gutierrez house, he appeared intoxicated. His speech was slurred; his gait was unsteady; his eyes were bloodshot and watery; his breath smelled like alcohol; and he interrupted several times when King attempted to talk with Mr. Gutierrez. King offered this further explanation for her conclusion: “He asked several times if he could go get the truck. I made the blunt statement to him, ‘No, not you, you're drunk,' and he never argued that fact.” King also testified that it appeared to her that appellant “wanted to end our contact and wanted me to leave the residence.” After Mr. Gutierrez said he was going to look at the truck, King prepared to leave, telling petitioner he should just be honest with the Fairfield police and tell them what he hit. King reminded petitioner that “that's what insurance was for, ” and although petitioner laughed, he seemed to agree.
Later on the morning of December 5, California Highway Patrol officer Darren Carrington went to the accident scene to conduct an investigation. The road was wet from the night before, and it had been a foggy morning, but the fog was lifting by the time Carrington arrived. That stretch of road was in an unincorporated area of the county just north of the Fairfield city limit. In both directions of the two-lane road, a white “fog line” ran between the outer edge of the driving lane and a six-foot shoulder. Beyond the shoulder, the ground turned to gravel and then dirt. The speed limit was 45 miles per hour.
Carrington found a body lying on a grass embankment near the west side shoulder of the road, along with some “debris” from appellant's truck. Carrington reached the conclusion that the victim had been walking south on Peabody on the “west roadway edge . . . at or near the fog line” when he was struck by the truck. Carrington then left the accident scene and went to the home of petitioner's uncle, which was about a 10-minute drive. When Carrington questioned petitioner about the accident, he smelled alcohol on petitioner's breath. Petitioner told the officer that he was driving south on Peabody at the speed limit of 45 miles per hour when he hit something, but he was “unsure” of what. He reported that he was “dazed and confused” when the truck came to rest facing south in the northbound lane. Petitioner denied that he had consumed alcohol and did not mention a designated driver.
Jackson Harris is an investigating deputy coroner for the Solano County Sherriff's Department. Harris was assigned to determine the cause and manner of the death of Moses Sala, the person who was found on the side of Peabody Road near petitioner's truck. Harris examined the body before it was removed from the accident scene. Sala was lying on a grassy embankment approximately 20 feet from the western edge of the road. A hat and shoe were recovered from the west edge of the road and a matching shoe was found in a grassy area on the opposite side of the two-lane road. Harris determined that Sala lived in Fairfield, approximately a half mile south of the accident scene and that he was walking in that direction, toward the oncoming northbound traffic, when he was hit from behind by appellant's truck.
When Harris examined the body at the accident scene, it was apparent that Sala sustained multiple compound fractures; the femur bone in both of his legs had broken through the skin; and one of his humerus bones had broken through the skin of his arm. Numerous lacerations, abrasions, contusions and bruises covered his body, including on his head, face and chest. Blood samples were taken at the scene; an ...

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