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Hernandez v. Baughman

United States District Court, E.D. California

September 17, 2019

THOMAS HERNANDEZ, Petitioner,
v.
DAVID BAUGHMAN, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         Petitioner is currently in state prison serving a sentence of 49 years and 4 months to life for his conviction for second degree murder, assault with a firearm, discharging a firearm at an inhabited dwelling, and associated firearm enhancements. He filed the instant habeas petition challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On April 3, 2014, a Fresno County jury found Petitioner guilty of second degree murder as a lesser included offense, and the firearm allegations were found true, guilty of two counts of assault with a firearm, and guilty of discharging a firearm at an inhabited dwelling. People v. Hernandez, 2017 Cal.App. Unpub. LEXIS 2352, at *2-3 (Cal.Ct.App. Apr. 5, 2017). The jury found all the gang enhancements not to be true. Id. at *3.

         The Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On April 5, 2017, the Fifth DCA affirmed the judgment. Id. at *69. Petitioner filed a petition for review in the California Supreme Court, and the petition was denied on June 14, 2017. (Doc. 18 at 7.)

         On September 12, 2018, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) On November 19, 2018, Respondent filed a motion to dismiss the petition as a mixed petition containing an unexhausted claim. (Doc. 11.) This Court granted the motion on February 21, 2019 and directed Petitioner to file a First Amended Petition deleting the unexhausted claim or request dismissal of the petition without prejudice. (Doc. 17.) On March 5, 2019, Petitioner filed a First Amended Petition deleting the unexhausted claim. (Doc. 18.) Respondent filed its answer on May 6, 2019. (Doc. 21.) Petitioner filed a traverse on August 9, 2019. (Doc. 27.)

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

Several residents of the neighborhood were witnesses to the events before, during, and after defendant fatally shot the victim. They did not know either defendant or victim, and each person's testimony was fairly consistent.
The house at 4469 East Nevada
Gary Mendoza and his mother lived on East Nevada. Mendoza and his mother testified that a man known as "Shorty" lived across the street from them, at 4469 East Nevada.
Adrian Avina's parents also lived on East Nevada. Avina testified that a man known as "Shorty" lived at 4469 East Nevada. At trial, Avina identified a photograph of Esteban Rillo as the man who lived at that house.
Richard Rodriguez, another resident on East Nevada, testified that Esteban "Shorty" Rillo lived across the street from him, at 4469 East Nevada.
At trial, Esteban Rillo was called as a prosecution witness and was asked if he lived at 4469 East Nevada. Rillo testified that he had lived at that address but refused to answer any more questions in front of the jury, including whether he lived at that house at the time of the shooting or if he knew the victim
Defendant arrives in the neighborhood
Just before 3:00 p.m. on April 24, 2013, Danny Barrera (Barrera) was standing outside his son's house on East Bend Avenue, near the intersection of East Nevada. Barrera was socializing with his son and his son's friends. Barrera testified that a young man and a young woman were walking together on the opposite side of the street. He described the woman as Hispanic, with long braided hair, about 19 to 25 years old, and wearing black clothes.
Barrera testified the couple stopped and talked to his son's neighbor, Gina Griffis (Griffis), who was standing on her front porch. Griffis testified that defendant was the man walking with the woman. Griffis knew defendant by the name of "Creeps" or "Creeper." She had seen defendant in the area on prior occasions. She did not know the woman. Defendant asked Griffis for a cigarette, and if she could give him a ride. Griffis said no to both questions. Defendant kept walking and Griffis went into her house.
Barrera testified that after the couple finished talking with Griffis, they walked past his son's house. Barrera testified that defendant (as identified by Griffis) stared at him and appeared to be very upset. At trial, Barrera demonstrated how defendant used his arms to form the letter "L." Barrera and his friends did not talk to the couple. Barrera testified defendant did not say anything, and he did not hear any yelling or arguing. The couple kept walking, and Barrera lost sight of them.
A car arrives at 4469 East Nevada
Also around 3:00 p.m., Adrian Avina (Avina) was sitting in his car, which he parked in front of Shorty's house, across the street from his parents' house on East Nevada. Avina had arrived an hour earlier and realized his parents were not home. He stayed in the driver's seat of his car, listened to the radio, and did his homework.
Avina looked up from his homework and saw a brownish-yellow car arrive and park on the street in front of him. There were two men in the car and they got out of the vehicle. Both men were wearing caps.
Avina testified that one of the men in the car was Shorty. Avina did not notice where the two men went after they got out of the car. Avina returned to his homework and looked down at his books.
Gary Mendoza (Mendoza) testified he looked out his front window and saw three people standing and talking in Shorty's front yard. He did not see Shorty or recognize the men. Mendoza's mother saw two men in front of Shorty's house; one man was inside the front fence, and the other man was outside the gate. Mendoza's mother presumed one of the men was Shorty. Mendoza and his mother did not hear any arguing, yelling, or whistling.
The first shot
Avina testified that about 10 minutes after the brownish-yellow car parked in front of him, he heard a gunshot and looked up. He saw two men standing inside the perimeter fence in the front yard of 4469 East Nevada. They were not the same two men from the car, and he did not know or recognize them.
The two men were about four feet apart and facing each other. One man was holding a sawed-off shotgun and wearing a red cap with white lettering. Avina later identified defendant as the gunman. The second man was later identified as Bernardo Valdez (Valdez). Avina had not seen these men before.
Avina testified defendant aimed the shotgun at Valdez's midsection. Valdez's hands had been down at his side, and he was not holding a weapon. The first shot did not hit Valdez. Avina mistakenly thought defendant had shot Valdez because when he heard the shot and looked up, Valdez turned to his right, grabbed his stomach, and fell down. Avina did not hear any arguing, yelling, or whistling before the first gunshot.
Jesus Resendiz Corona (Resendiz), another neighbor on East Nevada, was outside his house and heard the first shot. He looked down the street and saw someone lying in front of a house. He did not hear any yelling, arguing, or whistling before the first shot.
Richard Rodriguez (Rodriguez) was inside his house and heard the first shot. He did not hear any yelling or arguing before then. Rodriguez looked outside and saw a man with a shotgun (defendant) standing in front of Shorty's house. Rodriguez testified the gunman also had a black backpack. Another man (Valdez) was lying face down on the ground, and his foot was twitching.
Rodriguez testified the gunman was standing outside the house's front gate, and he yelled, "'Lewis Street, this is Lewis [S]treet, dog.'" The gunman also threw up gang signs with his hands.
Mendoza and his mother heard a loud boom. His mother looked out the window and saw a man inside the fence turn and fall down in front of Shorty's house.
The second shot
Avina testified that after the first shot was fired, Valdez was lying face down on the ground. He was moaning and his legs were slightly moving. Defendant's lips were moving, but Avina could not hear what he was saying. He took two steps toward Valdez and fired a shot into Valdez's body as he was still lying on the ground. Defendant was about two to three feet away from Valdez when he fired the second shot. Valdez stopped moving.
Resendiz testified that within seconds of hearing the first shot, he saw the gunman walk up to the victim and fire another shot into the prone victim's body.
Rodriguez similarly testified the gunman walked up to the victim and fired a shot into the victim's body. The two shots were separated by a few seconds.
Mendoza ran outside and saw the gunman holding a sawed-off shotgun. The victim was lying in front of 4469 East Nevada. Mendoza later identified defendant as the gunman, and testified that defendant was one of the three men who had been standing in front of Shorty's house just before the first shot was fired. Defendant was wearing a red hat with a "T." Mendoza did not know defendant and had never seen him before. Mendoza testified that a person with long hair and a ponytail ran away. Mendoza also saw a bunch of teenagers running on the street.
Defendant walks toward Avina
Avina testified that after the second shot was fired, defendant shouted something and said the word "Bulldogs." Avina believed defendant was yelling at Mendoza, who was standing across the street.
Mendoza shouted at Avina to get away. Avina started his car and backed up along East Nevada, away from the shooting scene. Defendant was still standing within the perimeter fence in front of 4469 East Nevada. Defendant apparently heard Avina's engine start. Avina testified defendant looked at him, walked out of the perimeter fence area, and headed toward Avina's car. Defendant was holding the shotgun at his waist. Avina did not see him reload the weapon. Avina continued to back up his car, and defendant kept walking toward him.
Avina testified that he kept going in reverse and defendant was jogging toward his car. Avina testified that as defendant got closer to his car, defendant "[k]ind of pointed" the gun at him, but Avina was not sure if defendant raised up the gun. The gun was "toward the car or something," down "toward the engine." Avina backed through the intersection of East Nevada and Barton, narrowly missing other cars, and he kept going because he was afraid. Avina made a U-turn and pulled out of the neighborhood. He lost sight of defendant.
Defendant confronts Mendoza
Mendoza stood at his front door and saw Avina drive away. Defendant turned his attention to Mendoza and walked toward him. Defendant aimed the shotgun directly at Mendoza and told him to go inside. Defendant kept walking toward Mendoza, and said he was "gonna blast me" or "'shoot [me] down.'" Defendant tried to put the shotgun in his backpack.
Mendoza went into his house and slammed the front door. He reached for his own pump action shotgun and loaded it. Mendoza opened his front door and encountered defendant on his driveway. Defendant was still holding the shotgun and aimed it at Mendoza. Mendoza raised and cocked his own shotgun. Defendant ran away and dropped his backpack.
Defendant tries to get into Resendiz's house
Resendiz was still standing in front of his house after the second shot was fired. A neighbor told him to get inside. Resendiz went to his door and looked back. Defendant walked toward him, and Resendiz went into the house. Defendant stood at the front door and told Resendiz to open it. Resendiz was very frightened and locked the door. Defendant tried to open the door, but he gave up and left.
Rodriguez testified that after the gunman fired the second shot, he briefly went toward a house, left that house, and yelled, "'What's up, dog.'"
Rillo walks out of 4469 East Nevada
After defendant ran away from Mendoza's house, Mendoza left his own shotgun inside and ran across the street to the victim. Mendoza was concerned that Shorty was the victim, and he wanted to help him. When he reached the front yard of Shorty's house, Mendoza realized the victim was not Shorty.
Mendoza testified he heard "a front door open," and "Shorty came running out [of] the house. I asked him, I go, 'Is this your friend,' or, you know. He goes, 'Yeah,' so I left it in Shorty's hands." Mendoza testified that Shorty asked him "what happened. I was all, 'I don't know.'" Mendoza went back to his house, and the police and paramedics arrived at the scene.
The police arrive at the scene
The police department received 11 calls to 911 to report the shooting.
Officers Garcia and Mendes responded to East Nevada and found Valdez lying face down in a pool of blood, inside the gated area on a concrete walkway that led to the front door of the residence at 4469 East Nevada. His arms were crossed in front of his body. He had a single gunshot wound to his back. He was breathing but unresponsive. The scene was very chaotic and a lot of neighbors were on the street.
Officer Garcia returned to his patrol car to retrieve a medical kit. A woman approached him, and she was frantic and upset. She was holding a black backpack. Garcia directed her to drop the backpack on the ground and to remain in the area for questioning, but she disappeared.
After Officer Garcia spoke to the woman, a man on the corner of East Nevada and Barton shouted to him that the suspect was running away.
Defendant breaks into Marquina's house
Guadalupe Marquina (Marquina) was inside her house on East Nevada and did not hear any gunshots, arguing, yelling, or whistling. Instead, she heard the sound of a car backing up. She looked outside and recognized her neighbor's car going "too fast" in reverse.
Marquina testified that she kept looking out her window and saw the gunman cross the street to Mendoza's house. Mendoza closed his door, and the gunman headed down the street toward her house. Marquina went to the back of her house, heard someone knock over the trashcans in the alley, and saw the gunman through a side window.
Marquina testified the gunman kicked down her back door. Marquina ran to the front door and escaped into the street.
The police later determined that defendant damaged Marquina's back gate and fence, and knocked over the trashcan. He left bloody shoe prints in the yard, and a blood trail from the damaged back door, through the house, to the telephone, and out the door.
A red baseball hat with the letter "T" was found inside Marquina's house. The police later determined that Marquina's telephone had not been used to call 911 or the operator.
Defendant confronts Herrera and her family
Annabelle Herrera (Herrera), another resident of East Nevada, was inside her house with her daughters and young grandchild. Herrera did not hear any yelling, arguing, or whistling before the gunshots were fired.
Herrera heard the gunshots and stayed inside. She looked outside and saw Mendoza and other neighbors run across the street to help the victim. Herrera saw two men walk out of the house where Valdez was lying on the concrete walkway. Mendoza shouted at Herrera to call the police and lock her doors.
About five minutes after hearing the gunshots, Herrera heard noise in her backyard. She was suddenly confronted by defendant, who entered her house through an unlocked door. She had never seen him before. He was holding a shotgun with the barrel pointed down. His hand appeared injured. There was a lot of blood on his hands, shirt, and the shotgun.
Herrera tried to hide behind a sofa, but defendant saw her. Defendant walked toward Herrera, raised his shotgun, and pointed it at her stomach. Herrera screamed. Defendant told her not to call the police. Herrera raised her hands and said that nothing would happen. Defendant lowered the shotgun.
Herrera's daughters, Jazmin and Delia, were hiding in the bedroom with Herrera's grandchild. When they heard Herrera's screams, they went into the front room. Defendant walked toward them. They turned around and headed back into the bedroom. Defendant pointed the gun at their feet and told them not to call the police. Jazmin told defendant to calm down, and that they were not going to call the police.
Jazmin thought she smelled alcohol on defendant, as if he had been drinking. Delia thought he was drunk because of how he was walking.
Defendant followed Herrera and her daughters into the bedroom and dripped blood on the floor. Jazmin tried to shout through the window at the police. Defendant again said not to call the police.
Defendant looked outside at the police cars. Defendant kept telling them not to call the police because the police wanted to hurt him. Defendant held the gun at his side. Herrera's daughters were crying and scared. Jazmin again told defendant to calm down and said that they would hide him.
As Jazmin spoke to defendant, Delia grabbed Herrera's grandchild, ran to the front door, and screamed to the police, "'He's inside.'" The police approached Herrera's house and defendant looked angry. Jazmin again told defendant that they were going to help him. Defendant eventually placed the gun on the bed.
Herrera immediately grabbed the shotgun and pointed it at defendant. Herrera told the rest of her family to run outside. Herrera ran out of the front door with the shotgun.
Apprehension of defendant
About 10 minutes after Officer Garcia had arrived at the scene, several neighbors yelled that the suspect was inside of Herrera's house. Herrera and her family ran outside. They were frightened and yelling. Ms. Herrera was carrying the sawed-off shotgun and dropped it on the ground.
Defendant had left a blood trail along Herrera's fence in the backyard that led into the back door and continued through the house.
The Herreras had left the front door open. The officers could see defendant lying inside the house. The officers approached the front door and ordered him to walk out. Defendant had an injury on his lower arm, and he was bleeding. Defendant did not respond to the officers' commands. The officers entered the house and dragged defendant outside.
Defendant was wearing a white T-shirt and grey sweatpants, and there was blood on his clothes. Officer Garcia smelled a very strong odor of alcohol from defendant's body and breath. Defendant did not have any weapons or ammunition. Defendant was mumbling and incoherent, and said, "'My hand hurts.'" Garcia asked defendant what happened and if he had been shot. Defendant did not respond but asked, "'What happened?'" An ambulance arrived to treat defendant, who had injured his hand when he jumped over the fence and broke into Marquina's house.
The victim's fatal wound
Valdez died from injuries to his abdominal aorta and spinal column caused by defendant's second shotgun blast. The entrance wound was in the middle of his back and went directly back to front. There was gunshot residue inside the wound, indicating that it was either a contact wound, or the shotgun was fired within two feet of the victim's body. There was shotgun wadding in his spinal column and multiple pellets spread through the area. There was no exit wound.
Valdez did not have any other wounds on his body, or injuries on his hands, chest, or face.
There was a high level of methamphetamine in Valdez's blood that was 10 times the toxic range.
The victim's clothing and possessions
Valdez was wearing a black T-Shirt that said "Bulldog Nation." He had tattoos of "007," "Malo" and a small dog paw. The police found a gray baseball cap near Valdez's body, with the letter "B" on the front and back.
Valdez had a pair of metal knuckles, a stun gun, and a small plastic bag with a rock-like substance in his pockets. The stun gun did not fire darts, and required bodily contact to function properly.
Search around and in 4469 East Nevada
The police found two spent shotgun shell casings and a piece of plastic wadding near Valdez's body, in the front yard of 4469 East Nevada.
The police determined that defendant's first shotgun blast missed Valdez and hit the front window of 4469 East Nevada. The shotgun pellets hit the window's outer frame, shattered the window, and glass fragments were spread around the interior of the front room. The blinds that had covered the front window were also damaged. There were metal fragments on the ground, consistent with shotgun pellets. There were two small holes in the interior wall beyond the front window, indicating that shotgun pellets lodged into the wall.
The police later searched 4469 East Nevada and found live rounds of different calibers, a bulletproof vest, Fresno State Bulldog clothing, a glass jar of marijuana, an empty holster, and a plastic bindle of a substance that appeared to be ...

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