Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Foster v. Gastelo

United States District Court, E.D. California

November 7, 2019

JOSIE GASTELO, Warden, Respondent.



         Petitioner is currently in state prison serving a sentence of 74 years to life for his conviction for offenses surrounding shooting two people in a bar. 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.


         Petitioner was convicted of second-degree murder of Janee Tatum (Pen. Code, § 187) and attempted murder of Herman Tatum, Jr. (§§ 664/187), with enhancements for personally and intentionally discharging a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). People v. Foster, 2019 Cal.App. Unpub. LEXIS 92, at *1 (Cal.App. 5th Dist. January 3, 2019). Petitioner also pleaded no contest to possession of a firearm by a felon (§ 29800, subd. (a)(1)). Id. The court sentenced Petitioner to 9 years plus 65 years to life. Id. at *2. The Fifth DCA remanded the matter for sentencing issues but affirmed the conviction otherwise. Id. at *3.

         Petitioner filed the instant habeas petition on June 21, 2019. (Doc. 1.) Respondent filed its answer on September 6, 2019. (Doc. 11.)


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

The Hinton Center event
On the afternoon of Sunday, March 23, 2014, Herman Tatum and his father went to a "Stop the Violence" gathering at the Hinton Center in Fresno. There were 20 to 30 people there. Herman and his father talked to friends and relatives, stayed for about 30 to 45 minutes, and then Herman went home.
Alberta Malone also attended the event and took photographs of everyone having a good time. One of the photographs showed defendant was at the event. There is no evidence that defendant and Herman interacted in any way at the event.
The Crossroads bar
Later that evening, Herman was at home with his wife, Janee. Herman was a long haul truck driver and scheduled to leave the next day. Janee suggested that they go to The Crossroads bar as something fun to do that night. Herman agreed.
Herman and Janee arrived at the bar sometime between 10:00 p.m. and 11:00 p.m. The bar was located in a small shopping center at the corner of Cedar and Shields in Fresno. The bar's interior was separated in certain segments. At the entrance door, there was a curtained foyer followed by a dance floor, a barrier wall around the dance floor, a stage for the band, and a U-shaped bar.
Herman testified that he was carrying a .45-caliber Glock handgun in a holster on the right side of his belt, and the holster was inside his waistband. His shirt was hanging over his belt and covered the gun holster. The gun was loaded but not cocked. He did not have a concealed weapons permit. Herman testified he had lawfully purchased the gun, and always carried it because he felt it would protect his family. Herman and Janee belonged to a hunting club.
Herman testified there were 20 to 30 other patrons at the bar, including about half the people who had been at the Hinton Center event. Everyone "pretty much knew each other ... but everybody is not friends."
Defendant's statements to Janee and Herman
Herman testified about what happened at the Crossroads that night. Herman was standing by the bar and talking to a friend. Janee was standing two feet behind Herman.
Defendant walked between Herman and his friend. Herman did not know defendant but recognized him because defendant had been at the Hinton Center event earlier that day.
Herman testified that defendant started to talk to Janee and said to her, "'Hey, I want to talk to you outside.'" Janee turned around and told defendant, "'Hey, I'm married. I don't do that.'"
Defendant walked to Herman's side and tapped him on the shoulder. Defendant asked Herman, "'Hey, is this your girl?'" Herman testified he replied in a "joking" way, "'No, it's my wife.'"
Herman testified defendant asked, "'Hey, is this your wife?'" Herman again said she was his wife. Defendant said, "'You know who I am?'" Herman said no.
Herman testified he extended his hand, introduced himself, and tried to shake defendant's hand. Defendant did not shake his hand. Defendant said, "'Nah, we are going to leave it at that, '" turned around, and said it was okay. Herman also said it was okay. Herman testified he never pulled his firearm at that time because they did not argue, and he thought the exchange ended. He never lifted his shirt to show the gun to defendant.
Herman testified Janee told him to get another drink and then they could leave. Herman asked the bartender for two more drinks and resumed his conversation with his friend.
Defendant shoots Janee and Herman
When the drinks were ready, Herman turned to the bar to get them. Janee was still standing in the same place. Herman never saw her talk to defendant. Herman looked to the left and saw defendant rocking back and forth. Herman was not concerned about defendant's behavior because music was playing in the bar.
As Herman picked up the drinks, he heard someone say, "'Now what, you bitch-ass n[****]r?'"
Herman turned around and saw defendant and realized defendant had made the statement. Herman did not know why defendant said that. Defendant was standing in the same place and still rocking back and forth. Defendant's right hand was extended, and he was holding a handgun. Herman testified that he looked at defendant, but defendant "wasn't pointing [the gun] at me, though. He never pointed it at me. He had it pointed at Janee."
Herman testified he made "a left turn very fast" and tried to use his right hand to knock the gun out of defendant's hand. "My purpose of doing that is so I can get to my wife. I figured if I can cover up my wife, anything I needed to do after that I could do." Herman took two large steps toward defendant, spun around, and his left elbow made contact with defendant's right hand.
Herman thought he had knocked the gun out of defendant's hand and tried to get to Janee to cover and protect her. Herman testified defendant never dropped the gun but held onto it. Defendant regained control of the gun and "[r]epositioned his grip." Defendant stepped to the right "and he fired, boom."
As the first shot was fired, Herman testified he was "running towards" Janee and "reaching out to grab her" with his right hand. Herman was "maybe a step, step and a half off" and "grabbed her elbow. I barely got my fingers on her, and I was trying" to "throw my left arm over" to cover her body.
Herman testified that Janee fell backwards before he could reach her. Herman heard a couple more gunshots. At that point, Herman realized he was also hit and fell to the floor. Once he landed on the floor, Herman pulled out his own handgun, cocked it, and looked for defendant but he was gone. Herman was positive that defendant never saw that he was carrying a gun.
Herman held Janee on the floor and realized she had been shot in the head. She was bleeding very badly. Herman's neighbor approached and stood over them. Herman handed his gun to the neighbor and told him to take it home. "I mean, what else can I do with it? I mean, I hadn't fire[d] it. I didn't do nothing with it."
Herman testified defendant shot them about 30 minutes after defendant made his initial statements to them. Herman did not notice if defendant walked in and out of the bar before the shooting because he was not paying attention to him.
The victims' injuries
The police received a dispatch to respond to the bar at 11:09 p.m., and Herman and Janee were immediately transported to the hospital.
Janee had been shot once in the head. The bullet entered the front of her forehead, fractured her skull, continued to the top portion of her head and through the soft tissue, and resulted in bleeding outside and under the brain. She lapsed into a coma within a few minutes of the injury. There was no gunshot residue or stippling on her forehead, indicating the gun was fired at least two to three feet away from her. Janee died at the hospital after being on a respirator for a few days.
Herman was shot twice and wounded in his back and lower buttocks. The wounds were about 12 inches apart. He had surgery to remove the bullets and was in the hospital for three days. Herman was unable to work for nine months because of his injuries. At the time of trial, he sometimes had difficulty standing, his leg locked at times, and he could not squat down.
The investigation
The officers found four nine-millimeter shell casings on the floor of the bar. There was a fresh bullet hole through the wall of a store room.
An officer spoke to Herman at the hospital and obtained a statement about what happened. The police also interviewed other patrons at the bar and obtained a physical description of the gunman.
The officers learned from witnesses in the bar that earlier in the evening, the possible gunman had been at a liquor store located in the same shopping center. The police obtained surveillance video from the liquor store and obtained a still photograph of a man who matched the witnesses' descriptions of the gunman. The police also examined Alberta Malone's camera and found a photograph of someone who resembled the person in the surveillance video.
Based on this information, the police prepared a photographic lineup that included defendant's picture and showed it to Herman and other witnesses at the bar. Defendant was identified as the gunman.
Arrest of defendant
On May 2, 2014, defendant was arrested at an apartment in Cleveland, Ohio, by officers attached to the Federal Bureau of Investigation's violent crime task force. Defendant was held in custody at the Cuyahoga County Jail. Defendant made a telephone call from jail to someone on the same day that he was arrested. Defendant's call was monitored, and officers heard defendant make statements about the possible location of a gun.
A few hours after he was arrested, the officers returned to the Cleveland apartment where they had found defendant. The officers discovered a nine-millimeter handgun that was under the plastic liner of a bathroom trash can. There was one bullet in the chamber and additional bullets in the magazine.
Firearms evidence
A criminalist compared the four nine-millimeter casings found on the bar's floor with the nine-millimeter handgun recovered from the Cleveland apartment where defendant was arrested.
The criminalist testified she identified three casings as being fired from that nine-millimeter handgun.
The fourth casing "had the same class characteristics," but there were not enough details to say "with absolute certainty" that it was also fired from defendant's gun. The criminalist testified it was "possible" the fourth casing was fired from another nine-millimeter weapon but explained the fourth casing "most likely" was fired from defendant's gun and there just "was not enough there in detail for me to call it an identification."
The police also recovered Herman's .45-caliber Glock pistol that he had at the bar and gave to his neighbor. The criminalist examined Herman's Glock handgun and compared it with the four casings found in the bar. She testified that none of the casings were fired from the .45-caliber Glock handgun because of "[t]he differences in caliber, so those cartridge cases could not have been fired from that Glock. They were .9mm caliber, which is much smaller diameter than .45 caliber pistol."
Prosecution evidence from other bar patrons
Tony Ortega testified he was at the bar and talking to friends. A disc jockey was playing music. Ortega did not hear any loud arguments or disturbances. After he had been at the bar for about 30 minutes, the music suddenly stopped, and he thought the speaker had blown out. He then heard gunshots. Ortega looked up and saw a man firing a gun. Ortega later identified defendant as the gunman. Defendant's right hand was fully extended as he fired. Ortega heard three to five gunshots and saw a couple of flashes. Ortega could not see who defendant was firing at. After he fired the final shot, defendant walked out of the bar, and he was still carrying the gun. Ortega did not know him and had never seen him before. Everyone was screaming and running after the shots were fired. Ortega did not see anyone else with a gun.
Feliza Banuelos testified she was sitting at the bar and saw a man with dreadlocks walk out of the building and then return. The man again walked out and then came back inside. When he returned the second time, he was holding a handgun and started shooting. She did not know the gunman. She ducked down and did not see what happened. She did not hear any arguments before the gunshots and did not see anyone else with a gun.
Alberta Malone testified about taking photographs at the Hinton Center event; she further testified that defendant was also at the Hinton Center. Malone was also at the Crossroads that night and took additional photographs at the bar. One photograph showed Herman and Janee standing together. Malone testified that she heard gunshots and immediately went down to the floor. She did not hear any arguments or yelling before the gunshots. She later gave her camera to the police.
Defendant testified at trial about the shooting. He went to the "Stop the Violence" event at Hinton Center earlier that day. He was wearing a T-shirt that said "Nothing but love Fresno" that he previously bought from someone who was throwing the event. He stayed at the event for several hours, ate food, and drank two or three beers.
Defendant testified he was armed with a buck knife and a nine-millimeter handgun that day. He carried the gun because of the violence in the area, and to protect himself from "indirect" threats he had received. Defendant testified he previously obtained the gun "from the streets" and had stored it "in an abandoned house." The gun was loaded, but he could not remember where he got the ammunition. Defendant put the gun in his waistband and covered it with his shirt.
Later that evening, defendant went to the Crossroads with some people who had been at the Hinton Center event. He briefly stopped at a nearby liquor store to buy cigarettes. He smoked a cigarette outside and then went into the Crossroads. Defendant testified he sat with his friends by the bar and drank a shot of Hennessey.
Defendant testified another friend invited him to go outside and smoke marijuana. Defendant agreed and hurried to finish his drink. Defendant left the bar area and headed toward the door. Defendant testified he walked by Janee. Herman spun around and blocked defendant's path. Defendant testified he had never met Herman or Janee, he did not know them, and he did not see them at the Hinton Center event.
Herman asked defendant what he said to his wife. Defendant replied that he did not say anything to her. Janee approached Herman and said, "'Man, hold on, you tripping, '" and grabbed Herman's arm. Herman told defendant, "'Yeah, you better not have say nothing to my wife.'"
Defendant testified Herman "started to get angry like provoking or trying to just - telling me as far as getting real hostile." Defendant testified he backed away from Herman and Janee; he did not ask Herman if he knew who he was. A man who had been sitting at the corner of the bar got up and stood between defendant and Herman. Defendant kept backpedaling. Herman came at defendant in an aggressive manner and cursed him.
Defendant testified that Herman pulled a nine-millimeter "Glock 9" from the side of his hip. Herman pointed the gun at defendant.
Defendant testified he feared for his life and pulled his own gun. Defendant ducked down low, so Herman could not see him. Herman did not try to slap the gun out of his hand. Herman put his drink down and turned. Janee was "flying that way towards where I had just walked from." Defendant testified he fired three shots. He fired once while crouched down low, and then fired two more shots.
Defendant testified he fired in self-defense. He was afraid Herman was going to shoot him before he could shoot Herman. Defendant was stunned that he had just shot a man, and he walked out of the bar. He had no idea that Janee was hit by a bullet.
Defendant insisted he did not fire the bullet that hit Janee in the head and killed her.
After the shooting, defendant took the train to Cleveland to get away "from all the riff raff." He stayed with the sister of his brother-in-law, and put his gun in a garbage can. Defendant learned Janee had been killed. He was "stunned" and knew he "didn't do it."
Defendant admitted he was also known as "Crazy," and a similar nickname was on the shirt that he was wearing at the bar. Defendant testified that he believed there was a plot against him that day but conceded that Herman and Janee were not involved in the plot, and he did not know them. Defendant testified that Herman was angry and aggressive, and used a loud voice. Defendant was trying to calm things down.
Defendant believed Herman fired a shot, but he was not wounded.
"Q. Now, is it your testimony that Herman fired a shot, one or more shots at you, is that your testimony?
"A. He shot one that I know of. I don't know, probably one shot at most."
Defendant was "probably" aiming at Herman when he fired the first shot. "[I]t was low. I don't know if I was aiming exactly at - I couldn't get it out - I was just moving up- moving it up, coming up with it. So I don't know if it - I was trying to aim at him."
"Q. You intentionally pulled the trigger, right?
"A. Yeah.
"Q. You know what happens when you pull a trigger to a loaded gun, right?
"A. Yeah.
"Q. You know pointing a loaded gun at someone and shooting them, there's a chance you can kill someone, right?
"A. There's a chance, probably, yes.
"Q. Well, my question is if your testimony is that Herman - you only did that because he was pulling a gun, were you trying to kill him, were you trying to put him down?
"A. I was trying to stop him from shooting me.
"Q. And how did you do that?
"A. Pointing my gun and shooting back."
Defendant insisted he saw Herman holding a gun and pointing it at him before he reached for his own gun.
"[H]e pulled his gun, as he is pulling his gun out, brandishing it, that's when I went for mines [sic]. He come up, point it at me, so I had came up like this. I couldn't even get it all the way up yet. He already had the gun on me. He already had everything on me, you know." Defendant testified that he only fired after he heard a gunshot.
"Q. It's your testimony that [Herman] fired first?
"A. Yeah, I heard the shot, so I fired."
Defendant was not sure if he shot Herman, but again insisted he did not shoot Janee.
Also, on cross-examination, the prosecutor asked defendant about statements he made to detectives during his post-arrest interview in Cleveland. Defendant admitted that he told the detectives that he fired two shots, but he testified at trial that he fired three shots. Defendant insisted he told the detectives that Herman had a "Glock 9." Defendant was asked to review the transcript of his post-arrest interview to show where he made that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.