United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a California state prisoner proceeding pro se with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This action proceeds on the petition filed on
June 16, 2016,  ECF No. 1, which challenges
petitioner's 2013 conviction for two counts of second
degree burglary with use of a firearm. Respondent has
answered, ECF No. 17, and petitioner filed a traverse.
Proceedings in the Trial Court
was charged with assault of a police officer with a
semi-automatic firearm, unlawful firearm activity, and two
counts of second degree robbery. ECF No. 18-1 at 53-55. The
charges arose from two 2012 robberies and one 2012 incident
involving a police operation to apprehend petitioner
following the robberies.
commenced on October 12, 2012. The court provided the jury
with preliminary instructions that included the following:
A defendant in a criminal case is presumed to be innocent.
This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you that
the People must prove something, I mean, they must prove it
beyond a reasonable doubt. Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the
charges are true. . . .
. . .
You alone must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and
accurate, use your common sense and experience. You must
judge each witness by the same standards, setting aside any
bias or prejudice that you may have. You may believe all,
part, or none of any witnesses's [sic] testimony.
Consider the testimony of each witness and decide how much of
it you believe.
In evaluating a witness's testimony, you may consider
anything that reasonably tends to prove or disprove the truth
or accuracy of that testimony. Some of the factors that you
may consider are these: How well could the witness see, hear
or otherwise perceive the things about which that witness
testified? How well was the witness able to remember and
describe what happened? What was the witness's behavior
while testifying before you? Did the witness understand the
questions and answer them directly? Was the witness's
testimony influenced by a factor such as bias or prejudice, a
personal relationship with somebody involved in the case, or
a personal interest in how this case is decided?
What was the witness's attitude about the case or about
testifying? Did the witness make a statement in the past that
is consistent or inconsistent with that witness's
testimony? How reasonable is the testimony when you consider
all the other evidence in this case? Did other evidence prove
or disprove any facts about which that witness testified? Did
the witness admit to being untruthful? Has the witness
engaged in other conduct that reflects on his or her
Do not automatically reject testimony just because of
inconsistencies or conflicts. Consider whether the
differences are important or not. People sometimes honestly
forget things, or make mistakes about what they remember.
Also, two people may witness the same event, yet see or hear
If you do not believe a witness's testimony that he or
she no longer remembers something, that testimony is
inconsistent with the witness's earlier statement on that
subject; and finally, regarding witnesses, if you decide that
a witness deliberately lied about something significant in
this case, you should consider not believing anything that
witness says, or, if you think the witness lied about some
things, but told the truth about others, you may simply
accept the part that you think is true and ignore the rest.
ECF No. 18-4 at 62, 64-65.
opening statement, petitioner's lawyer argued that
robbery victim and witness Terry Mitchell
(“Mitchell”) made multiple inconsistent
statements. ECF No. 18-4 at 74. Counsel also commented that
there “there is no evidence other than” Joaquin
Raya (“Raya”) and Mitchell saying they were
robbed. Id. Regarding Mitchell's and Raya's
identification of petitioner from photographs, defense
counsel encouraged the jury in his opening statement to
“pay close attention to the features so that when the
witness is describing what he remembers the person looked
like, you can then see how that applies to the photos.”
Id. at 79.
The Evidence Presented at Trial
prosecution presented the following evidence regarding the
March 24, 2012 Mitchell robbery. Mitchell testified that she
was held up at gunpoint at approximately 2:00 a.m. on March
24, 2012 in a Kaiser emergency room parking lot in Vallejo,
California. ECF No. 18-4 at 82-83. Mitchell testified that
she was in an open door of the back seat of her car looking
in her purse for her cell phone and “heard rapid
footsteps coming up from behind” as if someone was
running. Id. at 83-84, 86. She turned and saw a man
about twenty feet away pointing a gun at her and running
towards her. Id. at 84. As he neared, Mitchell
kicked the man who then “got angry and shoved [her]
back against the car” with his body. Id. at
85-86. Mitchell fell back into the car and the person with
the gun jumped on top of her and jammed the gun into the side
of her stomach several times. Id. at 88-89. Mitchell
described the man's face as intimidating and looking at
her as if to say, “Stop it.” Id. at 90.
After Mitchell settled down, the man took her purse, showed
it to her, jammed the gun in her side again, then got off her
and ran off with her purse. Id. at 91, 92. The
police showed up within five minutes and Mitchell gave a
description of the robber. Id. at 93-94.
asked if she felt like she was able to get a good look at the
person, Mitchell responded, “Oh, yes.” ECF No.
18-4 at 94. Mitchell described the person as wearing all
black with a hood that obstructed part of the front of his
face so that she could see his forehead, eyes, cheeks, and
nose. Id. at 94-95. Mitchell testified that she
“could see his eyes really well” and she could
tell that he “was a light-colored black man.”
Id. at 94-95. She further described the robber as
average size with what she thought was a mustache, but the
bottom part of the hood was covering somewhere around his lip
area. Id. at 96. When asked if Mitchell would
recognize the person if she saw them again, Mitchell
responded, “Oh, yes, sir.” Id. at 101.
Mitchell was asked if she saw the person in the courtroom and
she identified petitioner. Id. When asked how she
was able to confidently say she would recognize the person
again, Mitchell testified that, “It's just a face
you don't forget when they're on top of you.”
Id. at 102.
the incident but while it was still fresh in her mind,
officers showed Mitchell some pictures. ECF No. 18-4 102.
Mitchell was told to look at the pictures, be honest, and not
pick a photograph unless she was sure. Id. Mitchell
testified that she was not so angry about what happened that
she just wanted somebody held responsible. Id.
Mitchell confirmed she wrote the following on the photograph
she identified: “This is the person that looks like him
that robbed me at gunpoint.” Id. at 103-04.
She also testified that she did not have any uncertainty as
to whether or not that was the person, and that she
“took [her] time and made sure [she] was
positive.” Id. at 104. Mitchell stated several
times that she was positive about her identification of
petitioner as the person who robbed her at gunpoint. See
id. at 104-05. She reiterated that when she saw
petitioner again, she “knew for sure from the picture
to seeing him in person, it was that exact person.”
Id. at 105.
Court of Appeal correctly described defense counsel's
cross-examination as “vigorous.” ECF No. 18-8
at 228. During cross-examination, Mitchell admitted that she
recalled speaking with the police only “somewhat”
because of the stress of the situation. ECF No. 18-4 at 110.
Counsel questioned Mitchell regarding her prior testimony
that she was behind the driver's side of the vehicle
versus behind the passenger side of the vehicle when the
robber approached. Id. at 122-24. Mitchell testified
that the parking lot was “very well-lit” and that
she saw the person making the footsteps coming toward her
right at the moment she turned around. Id. at 126.
Counsel asked Mitchell about her identification of petitioner
from the photographs the police showed her. Id. at
144. Mitchell testified that she “recognized the face
right away, but [she] still took time to look just to be sure
and took away the ones that [she] knew for sure were not the
gentleman, and [she] wanted to be sure, so [she] probably
looked at them for a good five minutes.” Id.
Counsel asked her if there was anything about the excluded
photos that made her rule them out, and Mitchell responded,
“No. The other ones just didn't look anything like
the person that I knew that it was” and “[t]he
other ones just weren't Mr. Webb.” Id.
Regarding petitioner's hair, Mitchell testified that she
did not know petitioner had hair at the time. As the Court of
Appeal aptly noted, “Counsel asked Mitchell a number of
questions about the assailant's hood and
[petitioner's] shaved head in the photo. Mitchell
testified consistently that she could not see any hair on
[petitioner's] head and did not know whether he had any
hair because of the hood.” ECF No. 18-8 at 232
Also during cross-examination, Mitchell confirmed that the
robbery was traumatizing for her, she was shaking because of
the trauma, and she had nightmares and fear after the
incident. ECF No. 18-4 at 153. When asked if any of the
emotional turmoil that she went through could have affected
her ability to see and recognize the person who was at her
vehicle with the hooded jacket, Mitchell responded,
“No, sir.” Id. at 154.
the prosecution's redirect examination, Mitchell
confirmed that the lighting from the parking lot illuminated
the car. Id. at 155. She also testified that she had
“[a]bsolutely not” tried to embellish or change
her story to have some sort of effect on the case, and that
her memory of the incident had “stayed the same.”
Id. at 155-57. The prosecutor asked Mitchell whether
she felt pressured to identify any particular person to which
Mitchell responded, “Oh, absolutely not. If anything,
they were -- they, ‘Don't identify anybody if I
didn't recognize anybody[.']” Id. at
158. Mitchell also did not feel that the photographs were
presented in a way that one stood out among the others.
prosecution presented the following evidence regarding the
Raya robbery on April 7, 2012. Raya testified that he was in
the business of selling medical marijuana through
advertisements on websites including BudTrader.com. ECF No.
18-4 at 176-77. Raya received a text message from a person
wanting to purchase medical marijuana, and he ultimately
agreed to sell the person approximately two ounces to a
quarter pound of marijuana for $800 or $900. Id. at
178, 80. Raya had a “couple thousand” in cash in
his backpack because he was “going to look at . . .
some rims and some car audio” equipment after he sold
the medical marijuana. Id. at 180-81, 187. When Raya
arrived at the meeting spot, an apartment building, he stayed
on the phone with the person until he saw him emerge with
another man. Id. at 181-82, 184. Raya identified
petitioner as one of the men who emerged from the apartment
building. Id. at 182. Raya described the man's
voice on the phone as “[s]oft, feminine.”
Id. While still on the phone, Raya asked the man to
come out to his car, but the man refused so Raya got out of
his car and went to him. Id. Raya testified that he
spoke with the man who had the same voice he heard on the
phone. Id. at 183-84. Raya was led towards the
apartment. Id. at 184. The men were concerned Raya
had a weapon and all three men pulled up their shirts to show
they did not have weapons. Id. at 185. As they
walked towards the apartment complex Raya started to get a
“bad feeling because of the way they were acting,
” which he described as “really scared, sketchy,
like nervous.” Id. at 186. The men asked to
look in Raya's backpack again to confirm he did not have
a gun. Id. at 188. When Raya showed them inside the
backpack again, petitioner grabbed the bag out of his hand
and the other man pulled out a gun. Id. at 188-89.
asked if he got a good enough look at the two people that he
would have been able to recognize them after that date, Raya
responded, “Yes.” Id. at 195. Raya
testified that he was sure nothing was covering
petitioner's face and he was not wearing a hat or hood.
Id. at 196. After the robbery, Raya was contacted by
the police to look at some photographs. Id. at 197.
The police did not indicate they were hoping he would pick
out a certain person and Raya did not feel any pressure to
make some sort of identification. Id. at 197. Raya
confirmed that he selected petitioner as the person that
robbed him and wrote next to petitioner's photograph,
“This is the guy that robbed me.” Id. at
testified that he did not stop advertising on BudTrader.com
and put up a new advertisement the next day with a different
phone number. Id. at 199-200. Raya received a
response to the new ad and recognized the text message as
coming from a number associated with the robbers.
Id. at 200-01. Raya had a conversation with the
person and recognized the voice as the same man he spoke with
on the phone previously. Id. at 202. Raya contacted
the police to let them know the same man who robbed him was
calling him again at a different number. Id. at 201.
confirmed that he identified petitioner as the person who
robbed him. ECF No. 18-4 at 204. Raya did not think it was
possible that his in-court identification was based on the
fact that the police had showed him a photograph, as opposed
to the fact that he was there during the robbery.
Id. Raya was certain about who he was identifying as
the person who robbed him. Id. at 205.
cross examination, defense counsel questioned Raya about his
recollection of the details of the robbery and his
identification of petitioner. See generally ECF No.
18-4 at 205-38. This included whether Raya recalled telling
the officers that he had marijuana in his backpack and the
money on his person, id. at 211, 219-22; Raya's
identification of the two men who robbed him, id. at
216, 237-38; Raya's physical description of the
perpetrators, including whether one of them had hair or a
shaved head, id. at 217-19, 225, 237-38; the
differences in the darkness of skin between the person Raya
identified and the other photographs, id. at 221-22;
whether Raya has a clear recollection of some of the events
that happened, id. at 227; Raya's description of
the clothing on the person who robbed him and whether the
perpetrators were wearing jewelry or had tattoos,
id. at 229-30, 233; and Raya's recollection of
what time the robbery occurred and how much time passed
during the robbery, id. at 233-36.
Steve Cheatham (“Cheatham”) met with Raya to show
him photographs because they recently had a similar incident
and he “wanted to see if [Raya] recognized anybody from
when he was victimized.” ECF No. 18-4 at 244. Cheatham
showed Raya six eight-by-ten photographs of individuals and
explained to him that “[t]he person who may have
victimized him may or may not be in the photographs.”
Id. Cheatham did not suggest to Raya which of the
photographs was a person of interest for him. Id.
Cheatham testified that he put down photo number one and Raya
looked at it, Cheatham put down photo number two and Raya
looked at it, and when Cheatham “started putting down
number three, [Raya] immediately told [him] that this was the
person that had robbed him.” Id. at 246.
Cheatham said Raya reacted “[e]xtremely quickly”
to petitioner's photograph. Id. at 248. Raya
told Cheatham that “the subject that he had identified
in the photo was the subject who took his marijuana from him
while [a] second subject pointed a gun at him.”
Id. at 246.
prosecution also presented evidence regarding an undercover
operation on April 13, 2012:
The same person who made the original contact with Raya to
purchase medical marijuana on April 7 subsequently texted him
again, this time in response to a new on-line ad put up by
Raya the day after he was robbed. Raya responded to the text
message, but did not let on that he was the victim from the
earlier incident. Raya gave this information and the
person's telephone number to the Vallejo police. Officer
Fabio Rodriguez, posing as a marijuana distributor, called
the phone number and spoke with defendant, who again
identified himself as La John Hutchins. In a series of six or
seven phone calls, Rodriguez set up a meeting with defendant
to sell marijuana. Rodriguez spoke with the same person on
the phone each time; the person had a somewhat feminine
voice. The person wanted to meet at an apartment complex
about a block and a half away from the complex where Raya was
robbed and within two miles of Kaiser Hospital where Mitchell
had been robbed a few weeks earlier.
Vallejo Police Department Sergeant Kevin Coelho supervised
the operation, with the goal of apprehending defendant.
Coelho chose a nearby church parking lot as the safest place
to attempt the arrest in case shots were fired. The meeting
was planned for 2:00 or 3:00 in the afternoon; it was
considered an “extremely high-risk” operation.
Detective Jason Potts, posing as a marijuana dealer, spoke
with defendant and negotiated a price to sell 20 ounces of
marijuana. Potts noticed that the voice of the person he
spoke with was polite and had an almost feminine tone. On
April 13, after finally persuading defendant to meet in the
church parking lot, Potts parked there in an undercover
vehicle. Several minutes later, Potts saw defendant walking
across the lot. Potts called the phone number again to see
defendant answer the phone. Instead of answering, defendant
patted his pants, and he and Potts exchanged waves. At this
point, Potts recognized defendant based on prior contacts,
thinking to himself, “Oh, that's David Webb,
” as soon as defendant waved at him. Potts called
dispatch during the incident and asked for a photo of David
At that point, with defendant less than 40 feet away, Potts
made the bust signal and threw a flash bang device. Defendant
fell to the ground and then got up and ran. Sergeant Coelho
and Detective Kent Tribble had been monitoring the situation
from a van nearby; the van accelerated toward Potts and
defendant. Coelho saw Potts and defendant running. Defendant
was wearing a white jacket and dark jeans. Potts had started
to give chase, but turned around when he realized that he had
left a loaded firearm in his vehicle and other officers were
chasing defendant. At that moment, defendant reached into his
waistband area and looked at Potts over his shoulder. From
about 15 feet away, officers saw defendant digging in his
pocket for something as he ran. Detective Tribble thought
defendant was reaching for a firearm and shouted,
“He's got a gun. He's getting a gun.”
Tribble then saw the rear portion of the gun defendant was
attempting to remove. Sergeant Coelho saw defendant move his
left hand to the left side of his waistband and remove a gun
with his right hand from the waistband. Both Coelho and
Tribble fired at defendant to protect Potts. Defendant ran up
the stairs into the apartment complex next to the church.
Coelho did not shoot again because defendant was no longer an
immediate threat. Defendant was able to run past the
perimeter officers and escape immediate apprehension.
The day after the failed undercover operation, Detective
Tribble conducted a follow-up investigation at the apartment
complex and found a white jacket that looked like the one
defendant had been wearing. The jacket had bullet entry and
exit holes in the upper portion of the left sleeve. Tribble
viewed a hospital photograph of an African-American man with
an exit wound in the left shoulder that was consistent with
the location of the hole in the jacket. Tribble identified
defendant as the person in the photograph.
On April 15, 2012, Officer Mathew Mustard interviewed
defendant at the Solano County Jail. Defendant had a gunshot
wound to his left shoulder and did not deny that he had been
shot by police on April 13.
Officer Mustard reviewed phone records for the cell phone
number involved in the Raya robbery and the undercover
operation. The cell phone number was associated with
defendant's name and date of birth. The cell phone
records also contained evidence of communications with Raya
on April 7, 2012. Text messages showed the name “La
John Hutchins” when the user of the phone attempted to
make purchases of marijuana.
ECF No. 18-8 at 224-26; see also ECF No. 184-4 at
253-290; ECF No. 18-5 at 3-38, 40-55, 60- 125, 138-76;
court discussed jury instructions with counsel before the
presentation of evidence ended. CALCRIM No. 315 was raised by
the court, which noted that the instruction was
“requested by the defense.” ECF No. 18-5 at 249.
Petitioner did not request a modification of the instruction.
Id. On the court's own motion, and after hearing
arguments from the prosecution //// and defense counsel,
Count 1 was eliminated under California Penal Code section
1118.1. Id. at 293. The court then
introduced counsel for closing arguments, and directed the
jury that, “[a]s you listen to the attorneys argue,
keep in mind, again, that what they say is not
evidence” and “[y]ou will be the ultimate
arbiters of what the facts in this case have been.” ECF
No. 18-5 at 296.
the prosecution's closing argument, defense counsel made
several objections that the court addressed. In overruling
counsel's objection on the ground that the
prosecutor's argument misstated the law, the court
explained that it “will state the law to the jury and
will tell the jury that to the extent the attorneys say
something different, they're to disregard it.” ECF
No. 18-5 at 299. The prosecutor made the following arguments
What we do want is, we want credible testimony from people
about what they observed, so you could imagine that when
someone goes through an event like Ms. Mitchell went through,
she's not keeping track of time; she's not making
measure of distances, but when she's got that person
laying on top of her face-to-face, inches away, jamming a gun
into her side, that face is burned into her memory.
And she sat here in front of you and she pointed to the
defendant, I don't know how many times, I don't know
how many different ways, and said, “I don't have
any doubt that that is the person that robbed me at gunpoint
on that day”, that's the way you want your system
to work, so someone like that can get justice.
Let's talk about the sort of person that you would have
to believe Ms. Mitchell to be in order for her to say those
sort of things under oath and not really know it for sure.
She understands, and I hope you remember this little line of
questioning that I tried to go through with each Ms. Mitchell
and Mr. Raya, about whether or not they understood just
generally the consequences of someone being identified as a
robber being brought to trial and that sort of thing.
The point of that was very specific, and that is that it
would take an evil, horrible person to sit up there on the
witness stand, knowing generally what's at stake in this
sort of situation, and without being a hundred percent sure,
even though they're testifying that they're a hundred
percent sure, point to him and say, “He's the one
that robbed me”. That would take a soulless, horrible
person, and whatever evidence you have in this case, there is
no evidence, or none reasonably, that Ms. Mitchell is that
sort of human being that would do that to Mr. Webb, . . .
unless she was sure.
She wasn't so angry about what happened that she wanted
to have someone held responsible. She saw him do it, and she
told you about it, and you should convict him on it. It's
as simple as that, if the system works.
The same thing is true for Mr. Raya. He wasn't showing
some sort of enthusiasm for being brought to Court. It
didn't seem like he was thrilled about doing it, but
he's telling you about something that happened to him,
and he's trying to explain it to you as best as he can,
based on the memory that he has of what happened.
Just like Ms. Mitchell, just like anyone else who would have
been put through this situation that he was, he is not going
to remember every single detail. You will not get in your
jury instructions the law that you will be asked to consider
in this case, a jury instruction that says: If someone gets a
detail wrong, it means they're lying.
You'll get guidelines on how to determine credibility.
Those guidelines are consistent with your common sense, and
that's why the system works, because you are not supposed
to come in here, after having lived your life making
decisions based on common sense and good judgment, throw that
out the window and say, “You know what? Because this
person said some other distance at a preliminary hearing than
they did at trial, I'm not going to believe what they
The system wouldn't work if we did that. We would not be
able to convict people who commit these sort of crimes.
ECF No. 18-6 at 3-5. Defense counsel lodged an objection that
the prosecutor was misstating the law as to the procedures
applicable to inconsistent statements and testimony.
Id. at 5. The court overruled the objection,
reiterating that it “already indicated to the jury that
[it] will be giving them the law regarding how to interpret
witness testimony, so counsel can argue . . . .”
Id. The prosecutor concluded his opening argument
with the following comments regarding Mitchell and Raya:
I don't expect that there will be any argument about
whether or not Ms. Mitchell is an honest person, and whether
or not Mr. Raya is an honest person. That would be an absurd
argument to suggest that they're dishonest people coming
in here and telling you about what they've been through,
but whether or not that's argued, you saw them and you
got to see who they are and what their memory is and how
solid it is, and you'll get to make that determination,
and ultimately, it's because you get to make this
determination that the system works . . . .
ECF No. 18-6 at 17.
counsel zealously argued misidentification in his closing
statement. See generally ECF No. 18-6 at 20-46.
Counsel challenged the reliability of Mitchell's
identification, arguing that Mitchell's handwriting on
petitioner's photograph changed, id. at 23;
Mitchell did not realize the scope of the seriousness of what
she was doing, id.; Mitchell forgot the date of the
robbery, id. at 24; she presented more than one
account of the robbery, id. at 24, 26;
Mitchell's account does not “make any sense at
all, ” id. at 25, 27; “[w]hatever
happened to Ms. Mitchell, it wasn't [petitioner] that did
that, ” id. at 26; the “different
stories” are “so substantial it amounts to an
absolute doubt, ” id. at 27; that eyewitness
identification “is probably one of the weakest, most
unreliable bits of evidence that we put in Court here,
” id. at 28; and the discrepancies in
Mitchell's testimony “are so substantial that [the
jury] can't possibly reasonably using [its] common sense
find that [the charge] has been proven, ” id.
petitioner's counsel included the following arguments in
his closing statement regarding Raya: the photos given to
Raya were “put together with the specific intention of
[petitioner's] picture standing out, ECF No. 18-6 at 30;
there is a problem with connecting petitioner to the phone
calls with Raya, id. at 31; someone would not put
“cash for rims and audio stuff in the backpack with the
marijuana that you are taking around and showing people and
stuff, ” id. at 33; and Raya is “not
imputed with some kind of automatic credibility because he
complained to the police that he had been robbed, ”
id. at 34.
petitioner's counsel argued during his closing statement
that nothing was given to the jury to substantiate
Mitchell's identification and Raya was “just mixed
up.” ECF No. 18-6 at 45-46.
the court's administration of jury instructions, the
court explained to the jury: “Nothing that the
attorneys said was evidence. In their opening statements and
closing arguments, the attorneys discussed the case, but
their remarks are not evidence. Their questions are not
evidence, and only the witness's answers are
evidence.” ECF No. 18-6 at 60. The court further
explained to the jury:
You must judge the testimony of each witness by the same
standards, setting aside any bias or prejudice that you may
have. You may believe all, part, or none of any witness's
testimony. Consider the testimony of each witness and decide
how much of it you believe.
ECF No. 18-6 at 64. The court also read CALCRIM No. 315 to
You have heard eyewitness testimony identifying the
defendant. As with any other witness, you must decide whether
an eyewitness ...