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Guzman v. Robertson

United States District Court, N.D. California

October 31, 2019

JIM ROBERTSON, Warden, Respondent.



         Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. (Docket No. 1.) Finding the petition stated cognizable claims, the Court ordered Respondent to show cause why the writ should not be granted.[1](Docket No. 5.) Respondent filed an answer on the merits. (Docket No. 10.) Petitioner did not file a traverse although given an opportunity to do so. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is DENIED.

         I. BACKGROUND

         Petitioner was found guilty by a jury in Santa Clara County Superior Court of first degree murder, (Cal. Pen. Code §§ 187, 189); the jury also found true allegations that he personally and intentionally discharged a firearm causing death, (Cal. Pen. Code § 12022.53(d)), and that he committed the offense for the benefit of a criminal street gang, (Cal. Penal Code § 186.22(b)(1)(C)). (Ans. Ex. 1, Volume 3 Clerk's Transcript (3 CT) at 553, 555-557, 560.[2])

         The trial court sentenced Petitioner to 25 years to life for first degree murder and 25 years to life for the firearm enhancement, for a total of 50 years to life in prison. (3 CT 589-592; Ex. 2, Volume 7 of Reporter's Transcript (7 RT) at 1497.) An additional ten years for the gang enhancement was stayed. (Id.)

         On April 14, 2015, the California Court of Appeal initially affirmed the judgment of conviction. (Docket No. 1-2 at 147-156.[3]) Petitioner sought review on the two issues raised in this action: (1) whether there was sufficient evidence to support the gang enhancement; and (2) whether his sentence constituted cruel and unusual punishment. (Docket No. 1.) The California Supreme Court granted review on the cruel and unusual punishment issue and deferred the case until resolution of other pending cases raising the same issue. (Ex. 3, appellate court docket sheet.) The California Supreme Court ultimately remanded the case to the appellate court for consideration in light of its decision in People v. Franklin, 63 Cal.4th 261, 283-284 (2016). (Ex. 3; Docket No. 1-2 at 89.)

         On remand, Petitioner filed a supplemental brief conceding that he did not need to be resentenced. (Docket No. 1-2 at 166.) On April 18, 2017, the California Court of Appeal issued a new opinion rejecting the gang enhancement issue, finding the cruel and unusual punishment issue moot in light of new state legislation, and remanding the case to the trial court for a determination of whether Petitioner was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing. (Docket No. 1-2 at 88.) Petitioner again sought review on the gang enhancement issue. (Docket No. 1-2 at 69.) On June 28, 2017, the California Supreme Court summarily denied review. (Ex. 3 at 5.)

         Petitioner filed the instant habeas petition on August 16, 2018.


         The following facts are taken from the opinion of the California Court of Appeal on direct appeal after remand:

The Shooting
At approximately 5:00 p.m. on January 21, 2011, Hugo Gutierrez rode a bicycle on Capitol Expressway in San Jose. Defendant, who was also riding a bicycle, followed Gutierrez. Defendant pointed a gun at Gutierrez and fired. Gutierrez got off his bicycle, ran toward a restaurant, and fell down outside the restaurant. Defendant jumped off his bicycle and walked toward Gutierrez. Gutierrez attempted to stand up, but he lost his footing. Gutierrez put up his hands in an effort to shield himself, and he screamed for help. Defendant began “rapidly firing” the gun at Gutierrez. Gutierrez was “just lying there” on the ground, and defendant fired multiple shots at him. Defendant then jumped on his bicycle and rode away.
Gutierrez suffered gunshot wounds on his chest, abdomen, arms, and legs. One of the bullets struck Gutierrez's heart, and it killed him.
Gang Evidence
At the time of the shooting, defendant was a member of Kollmar Vago Trece (hereafter “KVT”), a Sureño street gang. Gutierrez was a member of Just Busting Funk (hereafter “JBF”), a Norteño street gang. There is a longstanding rivalry between Sureño gangs and Norteño gangs.
Gang Detective Carlos Garcia testified as an expert in “Hispanic criminal street gangs, specifically KVT.” His expertise was based on the following: academic training regarding criminal street gangs; four and a half years of patrolling the streets of San Jose, including gang areas; contact and conversations with 250 gang members and affiliates, including KVT members; regular conversations with gang detectives and homicide detectives, including conversations regarding the operations of KVT; and conversations with agents from other law enforcement agencies.
Detective Garcia opined that, as of January 21, 2011, the primary activities of KVT were assaults with deadly weapons and firearms possession as prohibited by former section 12025. He explained that KVT members engaged in those activities “regularly” and on a “consistent basis, ” not just occasionally. His opinion regarding the primary activities of KVT was based on conversations ...

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