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 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.
Proceedings in the Trial Court
was charged with second degree robbery, attempted carjacking,
being a felon in possession of a firearm, and resisting an
officer. RT 108-10. 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.
Evidence Presented at Trial
prosecution presented the following evidence at trial
regarding the charges against petitioner and his
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Jury Instructions and Deliberations
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
And five, when the defendant used force or fear to take the
property, he or she intended to deprive the owner of it
The defendant's intent to take property must have been
formed before or during the time he or she used force or
If the defendant did not form this required intent until
after using the force or fear, then he or she did not commit
If you find the defendant guilty of robbery, it is robbery of
the second degree. the property taken can be of any value,
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.
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.
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 ...