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Prescott v. Santoro

United States District Court, N.D. California, San Jose Division

December 12, 2019

KELLY SANTORO, Respondent.



         A California jury convicted Earnest L. Prescott of first-degree murder. The sentencing court applied an enhancement for the discharge of a firearm. He is currently incarcerated. He has petitioned this court for the writ of habeas corpus. For the reasons discussed below, the court denies the petition.

         I. Background

         Mr. Prescott was jointly tried with Jason Jones for the June 6, 2010 murder of James Johnson. The Alameda County jury convicted Mr. Prescott and acquitted Mr. Jones on June 8, 2012. The California Court of Appeal, in considering his direct appeal, described the facts of the case as follows:

On June 6, 2010, James Johnson was shot and killed as he walked from his home to the store. He lived in the Acorn housing complex in west Oakland, an area which was the territory of the “Acorn” gang.
On the day of the shooting, defendant, then 16 years old, was in a car heading over to Sycamore Street in west Oakland, part of the turf of the “Ghost Town” gang. Armond Turner was driving, and defendant was in the front seat with Laquisha Williams. Williams was a crack dealer who at one time headed the “Q Team, ” which was allied with the “P Team.” Both “teams” were subsets of the Ghost Town gang. Jason Jones, known as “2-9” and an individual called “Duder, ” both of whom were affiliated with P Team, as well as “three or four girls” were also in the car, which belonged to Williams's sister. Defendant was also affiliated with P Team.
Williams wanted to buy some marijuana, so the group headed toward an Oakland neighborhood known as “Lower Bottoms, ” driving though the territory of the rival Acorn gang. Williams testified that while they were in Acorn territory, Jones said he saw a man he thought was “Birdman, ” who had knocked out his tooth while they were in jail. Both Officer Valle and Williams testified they knew Dionte Houff went by the name “Birdman, ” and that he was associated with Acorn. Jones and defendant convinced Turner, the driver, to turn the car around anyway.
Turner made a U-turn, drove back and parked in a lot by a housing unit known as “Mohr 1.” Defendant and Jones got out of the car and entered the housing complex. They did not see Houff, but saw Johnson, who was walking from his home at the Acorn housing unit toward Green Valley Foods. Defendant fired multiple shots at Johnson, who fell to the ground. Johnson died from massive hemorrhaging due to multiple gunshot wounds.
After defendant and Jones left the car but before the shooting, Williams sent Duder to find out why the two were taking so much time in rival gang territory. She testified if an individual is from Ghost Town, it would be dangerous to be in Acorn. Williams then heard seven or eight shots fired, and defendant, Duder and Jones came running back to the car. Williams told police that when defendant got in the car, he had a silver and black gun, but at trial she testified she did not remember seeing a gun. Williams told police defendant told her Jones “wanted to shoot” but defendant “ran up on the dude.” At trial, Williams testified what she told police was “[n]ot really” true.
At the time of the shooting, Mignon Perry was at her mother's home in the Mohr 1 unit, directly across from Johnson's home. Perry supported “Gas Team, ” a subset of the Acorn gang. She knew Johnson well, and thought of him as a relative. From her kitchen window, she saw Johnson headed toward the Green Valley store, which she knew was his “everyday routine.” She had just opened the front door to ask him to pick something up for her when she heard multiple gunshots and Johnson shouting he had been shot.
Perry's mother slammed the front door shut, and through the window, Perry saw the shooter with a semiautomatic gun in his hand. The shooter pointed his gun at Johnson, moved closer, and aimed. After the shooting stopped, she opened the door and stepped outside, where she saw Johnson on the ground and the shooter running away. The shooter turned around when Perry swore at him, giving her the opportunity to see “the front of him, ” and make eye contact with him. Perry saw no one else around. Perry stayed with Johnson, who was still alive but could not speak, until police arrived.
Perry described the shooter to police as an African-American male between the ages of 16 and 18 years old, 6 feet and 1 inch tall, wearing a white T-shirt and blue jeans and carrying a silver handgun. She would not provide a written statement at the time because the crowd that had gathered told her not to say anything to police. She later learned from “[p]eople from the neighborhood” that Williams, Turner and defendant may have been involved in the shooting. Perry was acquainted with Williams and Turner. She logged on to Williams's MySpace page, where she saw a photograph of Williams with Turner and defendant, and recognized defendant as the shooter.
In an interview with police, Perry identified defendant in the MySpace photo as the shooter. Police also showed her still photos from surveillance videos taken at Mohr 1, in which she was able to identify defendant, Williams, and Williams's car. The surveillance videos show a man identified as defendant leaving Williams's car first and heading into the housing complex, followed by a second man. About two minutes later, a youth got out of Williams's car and ran in the direction defendant and Jones had gone. Within 30 seconds, all three of them returned to the car, got in, and drove away.
The day before the shooting, Williams hosted a memorial barbecue for Anthony Dailey, known as “Active, ” a Ghost Town gang member killed in 2007. She had T-shirts made with Dailey's picture on them for the event. Defendant, Jones and Dailey were close, and defendant was wearing one of the memorial T-shirts on the day of the shooting.
Two days after the shooting, police arrested defendant and Williams for the murder. Ultimately, defendant and Jones were charged with murder. (Pen.Code, § 187, subd. (a).) The amended information further alleged defendant personally and intentionally discharged a firearm causing great bodily injury and death. (Pen.Code, §§ 12022.5, subd. (a), 12022.53, subds. (b) & (d), 12022.7, subd. (a).)
Police found the gun used to kill Johnson a few weeks later, in the course of investigating another shooting. Police discovered defendant was a contact in the cell phone of the individual from whom the gun was recovered.
A few months after his arrest, defendant escaped from the juvenile facility where he was being held for trial. In his cell, law enforcement found two handwritten letters addressed to “Dear Lord” in which he admitted “taking a human being ...

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