United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
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.
Court adopts the Statement of Facts in the Fifth DCA's
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
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
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
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
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
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
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 police arrive at the scene
The police department received 11 calls to 911 to report the
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
Defendant breaks into Marquina's
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
Defendant confronts Herrera and her
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
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
Jazmin thought she smelled alcohol on defendant, as if he had
been drinking. Delia thought he was drunk because of how he
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
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
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
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
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
Search around and in 4469 East
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
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