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Pereira v. Swarthout

United States District Court, E.D. California

December 16, 2019




         Petitioner is a California state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on ground four of the first amended petition filed on November 30, 2015, ECF No. 24, which challenges petitioner's 2012 conviction and sentence for robbery, attempted carjacking, being a felon in possession of a firearm, and resisting an officer. See also ECF No. 40 (order dismissing grounds 1-3 and 5-8 as unexhausted). Respondent filed an answer, ECF No. 41, and petitioner did not file a traverse.


         I. Proceedings in the Trial Court

         A. Preliminary Proceedings

         Petitioner was charged with second degree robbery, attempted carjacking, being a felon in possession of a firearm, and resisting an officer. RT 108-10.[1] Petitioner's co-defendants Eric Chiprez (“Chiprez”) and Felicia Vasquez (“Vasquez”) were also charged with second degree robbery, and Vasquez was charged with two additional firearms charges. RT 108-09; see also CT 12-19.[2]

         The Evidence Presented at Trial

         The prosecution presented the following evidence at trial regarding the charges against petitioner and his co-defendants.

         On October 10, 2011, Broderick Crethers went to a Circle 7 store in his mom's van to get cigars and iced tea. RT 128-29. When Crethers was just outside the door of the store, he was approached by a man from his right side with his hands outstretched and fists clenched. RT 131- 32. The man did not say anything and tried to swing at Crethers' face. RT 133-34. Crethers swung back at the man causing him to fall to the ground. RT 134. The man tried to grab and push Crethers, so Crethers pushed him away and hit him again. RT 135. The altercation continued with the man attempting again to grab Crethers and “rush” him. RT 136-37. The man attempted to drag Crethers to the man's parked car. RT 138. The assailant called out, “Help me get this [expletive] [racial slur] off me!” RT 139. Crethers ended up on top of the man as he again called out for assistance. RT 139. After the assailant had been calling for help for two or three minutes, a second man came from the driver's side of the parked car, hit Crethers in the back of his head, and pulled him off the man and onto the ground. RT 140.

         Crethers identified petitioner as the person who initiated the conflict. RT 141-42. He identified Chiprez as the second man who came from the car to help petitioner during the conflict. RT 142. After pulling Crethers off petitioner, Chiprez went and stood by the trunk of the car while petitioner started kicking Crethers in the chest and ribcage. RT 143. The store clerk then said he was going to call the police. RT 144. When asked what happened next, Crethers testified as follows: “So after that, my stuff all over, he go back and grab it and take everything off of me, my jacket, my hood, my phone, my keys, and my money I had in my pocket and left with it.” RT 144. Crethers explained that petitioner pulled his sweatshirt off him while he was on the ground. RT 145-46.

         On cross-examination, Crethers testified that after petitioner kicked him, “He got all my stuff over my -- over my head like this” as he was “balled up . . . in a knot.” RT 204-206. He further testified that it happened while he was on the ground defending himself and “trying to just not get assaulted anymore.” RT 206. A gun was pointed at him while his property was taken from him. RT 209, 212-13. On redirect examination, when asked why he did not try to get his sweatshirt back, Crethers testified, “Because there was a gun in the midst of me doing anything that would harm myself to be in danger.” RT 219. As Crethers got up from the ground, he saw the driver's side door open and woman sitting in the passenger seat holding a gun. RT 147, 149. Crethers identified the woman as Vasquez. RT 151. The woman did not say anything and Crethers heard petitioner say, “Bitch, I should have slapped you, bitch, why you didn't shoot him, bitch? Bitch, why you didn't shoot him, bitch? Bitch, you had a clear shot, bitch, why you didn't shoot him.” RT 149. Petitioner jumped into the back seat of the vehicle with Crethers' property. RT 149-50. Chiprez was already in the driver's seat and they drove off once petitioner was back in the vehicle. RT 150.

         Crethers was later brought to a location and identified Chiprez as the second man who participated in the conflict; Crethers described him as the “shaggy-haired guy.” RT 156. Separately, Crethers was brought to a Wendy's where he identified Vasquez as the woman holding the gun during the altercation. RT 157. Finally, Crethers went to a Domino's Pizza where he identified petitioner as the man who was the initial aggressor in front of the Circle 7. RT 157-58.

         Deputy Alex Lopez testified that he went to the Circle 7 the day after the incident to obtain a copy of the video surveillance footage. RT 226. He was allowed to view the video at the store but was told there was no means of making a copy of the video. RT 226-27. Lopez watched the video a few different times from a few different angles. RT 228. Lopez recounted the incident he observed on video similarly to Crethers' description. RT 229-35. Lopez recalled seeing some items on the ground after the struggle that the male who assaulted Crethers reached down to pick up. RT 233. Lopez also testified that on the same day, he received information that Vasquez and a possible black male suspect were seen or currently at a nearby Wendy's restaurant. RT 244-45. As Lopez drove his patrol vehicle into the parking lot, he observed the black male suspect facing his vehicle take off running. RT 246. Lopez observed a detective chase the suspect, who was carrying a bag or backpack. RT 247.

         Deputy Kyle Hoertsch testified that he assisted in apprehending Chiprez. Chiprez told Hoertsch that he knew Crethers after Crethers recognized him while getting out of a patrol car for an in-field identification. RT 303-04.

         Barbara Epps testified that on October 11, 2011, she was sitting in her car looking at the window of a second-hand store. RT 327-28. A man she later identified as petitioner opened her car door and told her to get out. RT 329, 335. She looked at petitioner and observed that he was sweating and panicky. RT 329. Petitioner kept yelling at her to get out of the car, and she asked him what was the matter. RT 329. When Epps did not get out of the car, petitioner picked up a black bag he had with him and started fumbling with it. RT 330. As petitioner was fumbling, the police arrived, and he took off running. RT 332.

         Antonio Amaya was working as a clerk at the Circle 7 on the day of the incident. RT 375. Amaya helped petitioner and when he went out of the store he was met by another man and they began to fight. RT 376. The fighting men went out of Amaya's view. RT 377. When they came back into view, Amaya observed the men “tumbling on the floor and rolling around, and just beating the stuff out of each other.” RT 378. Amaya decided to run outside and tell them he was calling the police. RT 378. He saw another man come out of a vehicle and help with the fight. RT 379. Amaya yelled that he was calling the police and ran back into the store. RT 379. Before returning to the store, Amaya observed the passenger side door of the vehicle open and a female sitting inside. RT 381. When Amaya went back inside, he looked outside to see what was going on and observed the men walking away from each other and one man pick up from the ground a jacket or sweater. RT 382.

         Detective Mike French testified regarding his pursuit of petitioner after petitioner was spotted at a Wendy's restaurant. RT 414-17, 421. French described the foot chase as “long”; he had to stop during the chase for cars to go by. RT 417-18. French observed petitioner approach a woman's car and stand immediately next to her while they had “some kind of interaction.” RT 418-19. When petitioner saw French, he took off running again. RT 419.

         Deputy Michael Baroni testified that he retrieved the backpack petitioner had at the time he was handcuffed. RT 442. The bag contained a gun, cell phones, ammunition, keys, and some money. RT 442.

         Co-defendant Vasquez presented Carolyn Schmidt as a witness. Schmidt testified that she knew Vasquez from living in the same apartment complex. RT 361. Schmidt saw Vasquez and Crethers together “too many times to count.” RT 362. She witnessed Crethers say, “Whoa, you're looking good today” to Vasquez on one occasion. RT 365. Schmidt recalled that a man Vasquez identified as Ron started living with her and she stopped dating another man named Chris. RT 366-70. She later identified petitioner as Ron. RT 372-73.

         Petitioner presented Marcelo Codog, an investigator for the Sacramento County District Attorney's office, as a witness. RT 499. On January 24, 2012, Codog spoke with Epps and took a statement from her. RT 499. Codog confirmed that Epps told him she was not sure what was happening as the man who approached her car stood in the doorway telling her to get out. RT 499. On cross-examination, Codog also confirmed that the statement he took was after he reviewed the statement Epps gave to law enforcement and was intended to identify any discrepancies in the report. RT 500.

         B. Jury Instructions and Deliberations

         On February 16, 2012, the trial court read the jury instructions. CT 56. The court instructed the jury on the elements of robbery as follows:

The defendants, Eric Chiprez, Ron Pereira and Felicia Vasquez, are charged in Count One with robbery in violation of [California] Penal Code section 211.
To prove the defendant is guilty of this crime, the people must prove that, one, the defendant took property that was not his or her own.
Two, the property was taken from another person's possession and immediate presence. Three, the property was taken against that person's will.
Four, the property - - excuse me, the defendant used force or fear to take the property or to prevent the person from resisting.
And five, when the defendant used force or fear to take the property, he or she intended to deprive the owner of it permanently.
The defendant's intent to take property must have been formed before or during the time he or she used force or fear.
If the defendant did not form this required intent until after using the force or fear, then he or she did not commit robbery.
If you find the defendant guilty of robbery, it is robbery of the second degree. the property taken can be of any value, however slight.
Fear, as used here, means fear of injury to the person, himself or herself.
Property is within a person's immediate presence if it is sufficiently within his physical control, that he could keep possession of it if not prevented by force or fear.

RT 675-76; see also CT 71. The jury was excused for the remainder of the day. CT 58.

         Following a five-day break, the jury returned on February 21, 2012 to begin deliberations. CT 80. The jury requested the court-reporter's record of Crethers' testimony, and the read back commenced that afternoon. CT 80. At the end of the day, the court found good cause to excuse a juror for personal reasons. RT 693-98; CT 80-81.

         An alternate juror was sworn in the following morning, February 22, 2012, and the jurors were directed to begin their deliberations anew and disregard the earlier deliberations as if they had not taken place. RT 703. The jury reached their verdicts on five of the six counts and the trial court directed the jury to place the signed verdict forms inside an envelope while it continued deliberations on the remaining count. CT 83. The court then directed the clerk to read the verdicts. Regarding petitioner, the jury found him guilty of count two ...

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