United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [THIRTY DAY OBJECTION DEADLINE]
SHEILA
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
Petitioner
is a state prisoner proceeding pro se and in
forma pauperis with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He is currently in state
prison serving a sentence of life without possibility of
parole, plus 64 years to life, plus 27 years, for convictions
for, inter alia, first degree murder and attempted
murder. The habeas petition presents numerous claims
challenging the conviction and sentence. As discussed below,
the Court finds the claims to be without merit and recommends
the petition be DENIED.
I.
PROCEDURAL HISTORY
On
January 12, 2015, a Kern County jury found Petitioner guilty
of one count of first degree murder (Cal. Penal Code
§§ 187(a), 189), one count of attempted murder
(Cal. Penal Code §§ 187(a), 664); two counts of
shooting at an occupied motor vehicle (Cal. Penal Code 246);
one count of illegal firearm possession (Cal. Penal Code
29800(a)(1)); and one count of making criminal threats (Cal.
Penal Code § 476). (Doc. 19-4 at 157-161.[1]) The jury also
found true the special circumstance allegation of discharging
a firearm from a motor vehicle at a person outside said
vehicle (Cal. Penal Code § 190.2(a)(21)), and the
enhancement allegations that Petitioner personally inflicted
great bodily injury (Cal. Penal Code §§
12022.53(d), 12022.7(a)). (Doc. 19-4 at 157-161.) In a
bifurcated proceeding, the trial court found Petitioner had
suffered a prior conviction, a prior serious felony
conviction, and three prior prison terms pursuant to
California's Three Strikes law (Cal. Penal Code
§§ 667(b)-(i), 667.5(b), 1170.12). (Doc. 19-4 at
157-161.) The court sentenced him to a prison term of life
without the possibility of parole, plus 64 years to life,
plus 27 years. (Doc. 19-4 at 157-161.)
Petitioner
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). On February 6, 2008, the
Fifth DCA affirmed judgment. People v. Vasquez, No.
F071302, 2018 WL 716845 (Cal.Ct.App. 2018). Petitioner filed
a petition for review in the California Supreme Court, and
the petition was denied on May 16, 2018. Id.
On June
5, 2019, Petitioner filed a petition for writ of habeas
corpus in this Court. (Doc. 1.) Respondent filed an answer on
September 6, 2019. (Doc. 18.) On October 9, 2019, Petitioner
filed a traverse. (Doc. 20.)
II.
FACTUAL BACKGROUND
[2]
In the small hours of April 10, 2014, Armando Ortiz and Aaron
Rocha were brought to the emergency department at Kern
Medical Center in Bakersfield. Ortiz had sustained a gunshot
wound to the right temple, was “in extremis, ”
and “ultimately went into cardiac arrest.” The
medical staff administered cardiopulmonary resuscitation,
medication, and defibrillation, but to no avail. Ortiz was
pronounced dead at 1:52 a.m. On the other hand, Rocha, who
had sustained a gunshot wound to the right proximal superior
lateral thigh, was discharged at 5:40 a.m. after receiving
treatment.
During Ortiz's autopsy, the forensic pathologist
extracted a projectile that was consistent with a bullet
caliber in the nine-millimeter range.
I.
Prosecution's case-in-chief.
a. Aaron Rocha.
Sometime in March 2014, Rocha borrowed a black four-door 2011
Honda Accord with a red Dynasty Motors paper plate from his
friend Studer [Fn.5] to visit his children. After returning
from his trip, Rocha learned Studer “went to ...
rehab” and “didn't want anybody to know where
he was at.” Rocha attempted to locate Studer for almost
two weeks without success. He decided to keep the Honda
Accord until Studer resurfaced.
[Fn.5] Rocha did not know Studer's actual name.
At some point, Rocha loaned the Honda Accord to Shelly McKeen
for a few hours, but she “never brought it back.”
McKeen initially told Rocha law enforcement had thrown her in
jail and confiscated the car because it was stolen. She
subsequently admitted she had given the car to someone named
“Tony Vasquez or Velasquez” to pay off a debt.
McKeen brought Rocha to “Tony's” house on
6812 Zelda Way, where the Honda Accord was parked on the
front lawn and a silver two-door Saturn was parked on the
driveway. Several individuals stood outside the residence.
They went into the garage when Rocha approached them. He
assured the group he “didn't want no
problems” and “just wanted the keys” to the
Honda Accord. Rocha asked for “Tony” but was
advised the latter “wasn't home.” He saw an
outdoor surveillance camera aimed at the driveway and
“knew they could see [him].” Rocha also noticed
there were keys in the Saturn's ignition switch. In front
of the camera, he announced, “I'm gonna take that
car and when you bring me my car, tell him I'll give him
his.” Rocha drove away in the Saturn. When he passed by
“Tony's” house 15 minutes later, the Honda
Accord was gone.
Rocha obtained “Tony's” cell phone number
from McKeen. He contacted him and the two men agreed to meet
in person and swap cars. “Tony, ” however, never
appeared at the designated location. At some point, McKeen
informed Rocha that “Tony” “had a
monitor” and “had to be ... home at 10:00.”
On April 4, 2014, at or around noontime, Rocha was driving
the Saturn when he saw the Honda Accord on Pacheco Road. He
followed it to the intersection of Pacheco Road and South
Union Avenue. When Rocha pulled up alongside the Honda
Accord, the driver of the Honda Accord opened fire, damaging
the Saturn's passenger side door and window, and took
off. The gunman appeared to be an elderly Hispanic male with
a “heavy mustache” and “big goatee.”
On April 10, 2014, sometime after midnight, Rocha drove the
Saturn to a 7-Eleven convenience store on the corner of
Pacheco Road and South H Street to purchase gas and beer. He
was accompanied by his friend Ortiz, who possessed a revolver
and placed it in the center console. Rocha parked the Saturn
next to a pump and went into the store to pay for the gas. At
some point, Rocha and Ortiz agreed to switch seats because
Rocha “was gonna drink” and “didn't
want to drive.” After refueling the Saturn, Rocha sat
in the front passenger seat and began counting the change to
determine whether there was enough money to buy beer.
Suddenly, he heard a gunshot. Rocha glanced over his right
shoulder and saw the gunman in the driver's seat of the
Honda Accord. He dived into the backseat but was struck in
the right thigh. Rocha shouted, “Let's go,
let's go, ” but the Saturn remained stationary. He
looked at Ortiz in the driver's seat and realized Ortiz
had been shot in the head. Fearing the gunman was still
nearby, Rocha grabbed the revolver and fled. However, he
decided to return to 7-Eleven because he “didn't do
anything wrong.” After confirming the gunman was no
longer in the vicinity, Rocha tossed the revolver into the
bushes because he “wasn't gonna carry the gun
inside the store” and called 911. Shortly thereafter,
he told officers who arrived on the scene the gunman was a
Hispanic male with a beanie and goatee in a black car.
At Kern Medical Center, Rocha spoke with Officer Escobedo and
then Detective Moore. Both times, he reiterated the 7-Eleven
gunman was a Hispanic male with a beanie and goatee. During
the interview with Moore, Rocha added the gunman was driving
a black Honda Accord and appeared “younger than the guy
that was on Union and Pacheco.” He denied having any
acquaintance with the vehicle. Rocha also denied possessing a
gun at the scene but subsequently admitted taking Ortiz's
gun.
Six hours after being discharged from the hospital, Rocha
spoke with Moore at the Bakersfield Police Department. There,
Moore stated he knew the 7-Eleven shooting was related to
Rocha's conflict with “a dude” over the Honda
Accord. He revealed “the guy” wore an ankle
monitor and Global Positioning System (GPS) data from the
monitor placed “the guy” at 7-Eleven
“exactly when [Rocha] was shot.” Moore then
asked, “Do you know Tony's last name?” Rocha
answered, “Velasquez or Vasquez.” Believing Rocha
and defendant “had a relationship” and
“knew each other, ” Moore showed Rocha a
photograph of defendant and asked, “Is this the guy
that shot you?” Rocha promptly replied, “Yeah, if
you put a beanie on him.” Later in the interview, Rocha
denied hiding heroin in the Honda Accord and owning a
firearm. When Moore pointed out a witness saw him stash a gun
in the bushes, Rocha answered, “Okay, yeah there was a
gun but it wasn't mine.”
On April 11, 2014, Rocha entered the state witness protection
program. In exchange, he agreed in writing to obey all laws
and testify truthfully in court. On June 27, 2014, Rocha was
detained by the United States Border Patrol due to an expired
visa. In early July 2014, he was transferred to the county
detention facility in Lerdo, ending his involvement in the
program.
At trial, Rocha was unable to identify defendant as the
7-Eleven gunman, citing poor memory and trauma. Regarding the
April 10, 2014, interview with Moore, he remarked, “I
just felt a little pressure like to say because of the
monitor evidence and the black car, I felt I was being
pressured and by saying it is [defendant] when [Moore]
pointed the finger at the picture.”
b. Witnesses and law enforcement at or near 7-Eleven at
the time of the shooting.
On April 10, 2014, at or around 12:15 a.m., Rodrigo D. and
his girlfriend were renting a movie from a Redbox kiosk in
front of 7-Eleven when he heard four or five gunshots.
Rodrigo then saw a black four-door sedan with tinted windows
leaving the parking lot. The sedan “looked shiny”
and “brand new.” Rodrigo and his girlfriend
entered the store and called 911. Seconds later, “one
of the individuals who had been shot” entered the store
and “[got] on the phone.”
At 12:17 a.m., Bridget C. called 911 and told the dispatcher
she heard three to four gunshots “coming just north of
[her] apartment.” At trial, she specified her apartment
was “[j]ust south” of 7-eleven.
Sometime before 12:20 a.m., Officer McCauley was on duty near
the intersection of Pacheco Road and Monitor Street when he
heard about five gunshots west of his location. He and his
partner drove westbound on Pacheco Road in the direction of
the gunfire. They were informed about a shooting at 7-Eleven
en route. [Fn.6]
[Fn.6] At trial, McCauley testified he executed a search
warrant at 6812 Zelda Way on September 4, 2013, and confirmed
defendant inhabited the master bedroom. He added the outdoor
surveillance camera connected to a monitor in that bedroom.
At or around 12:20 a.m., Officers Barajas and Billdt were
dispatched to 7-Eleven. There, they spotted Rocha limping in
front of the entrance and Ortiz sitting motionless in the
driver's seat of the Saturn. Billdt, a licensed
paramedic, extricated Ortiz from the vehicle. He observed
profuse bleeding from Ortiz's nose and right ear
indicative of a skull fracture. Billdt supplied medical aid
until the ambulance arrived.
Meanwhile, Barajas found three Winchester nine-millimeter
Luger shell casings next to the Saturn. With the help of an
anonymous witness, he recovered an H & R model 922
.22-caliber nine-shot revolver in the bushes adjacent to the
parking lot. The witness told Barajas “one of the
occupants of the Saturn was the person that hid that
gun.” Subsequent forensic analysis established the
shell casings were expelled from a semiautomatic handgun, not
the revolver.
c. GPS data from defendant's ankle monitor.
On November 5, 2013, defendant, a “gang-affiliated
parolee[ ], ” was placed under the supervision of
parole agent Miller and fitted with an ankle monitor. On
April 1, 2014, at 4:52 p.m., as part of a mandatory weekly
check-in, he reported to Miller at the parole office. After
defendant exited the office past 5:00 p.m., Miller surveyed
the parking lot and saw only a black four-door Honda Accord.
As defendant approached the driver's side of the vehicle,
Miller, whose view was partially obscured “by one of
the support columns of the building up front, ”
“moved around to get a different vantage point.”
By the time Miller repositioned himself, defendant was
nowhere in sight and the Honda Accord was leaving the lot.
GPS data from defendant's monitor showed defendant
traveling at 27 miles per hour at 5:09 p.m.
On April 9, 2014, GPS data from the monitor showed defendant
leaving 2001 Custer Avenue, his reported address, and
traveling at 15 miles per hour at 11:45 p.m. His speed
increased to 31 miles per hour at 11:54 p.m. On April 10,
2014, at 12:02 a.m., defendant stopped at the southwest
corner of South H Street and Brundage Lane, the site of an
ampm convenience store. He stayed there until 12:09 a.m. At
12:12 a.m., defendant traveled southbound on South H Street
at 38 miles per hour. At 12:16 a.m., he stopped at the
southwest corner of Pacheco Road and South H Street, the site
of the 7-Eleven.
Between 12:18 and 12:37 a.m., GPS data from the monitor
showed defendant “zigzagging across ... streets”
and “staying up in the yards” in the residential
neighborhood northeast of 7-Eleven. At trial, Miller deduced
defendant was on foot during this period “[b]ased on
the location, the geography, [the] barriers and
[defendant's] speed.” Defendant then crossed White
Lane, stopped and waited at Ivan Avenue, and departed
“at a speed ... suggest[ing] that he's ... back in
a vehicle.” He returned to 2001 Custer Avenue at or
around 1:37 a.m.
At 1:52 a.m., GPS data from the monitor placed defendant at
the intersection of East Brundage Lane and Weedpatch Highway
near a Denny's restaurant. He left the area at 2:29 a.m.
and traveled westbound on East Brundage Lane. At 3:50 a.m.,
defendant was on South Oswell Street. At 3:55 a.m., defendant
removed the monitor. Miller received a tamper alert and
traced the device to La Posta Street.
d. Surveillance footage.
Surveillance footage recorded at ampm on April 10, 2014,
showed (1) a black car pulling up next to a gas pump at 12:02
a.m.; (2) a female entering the store at 12:03 a.m.; (3) a
male wearing black and white shoes next to the black car at
12:04 a.m.; and (4) the black car leaving at 12:09 a.m. At
trial, Moore reviewed the footage and opined the black car
“was consistent with [the] black Honda that had been in
dispute between [Rocha and defendant].” He also
identified the female as Melanie Dunn, describing her as
“part employee, part girlfriend, part crime partner
with [defendant].” Surveillance footage recorded at
7-Eleven on April 10, 2014, showed (1) Rocha entering the
store at 12:11 a.m., paying for gas, and exiting at 12:12
a.m.; (2) three gunshots being fired outside the store at
12:16 a.m.; (3) Rodrigo and his girlfriend entering the store
at 12:16 a.m. and calling 911; and (4) Rocha entering the
store with his cell phone at 12:18 a.m., exiting temporarily,
entering again at 12:19 a.m., and exiting again at 12:20 a.m.
Surveillance footage recorded at Denny's on April 10,
2014, showed (1) a male wearing black and white shoes and a
female in the parking lot next to a sports utility vehicle
(SUV) at 2:04 a.m.; (2) the male and female entering the
restaurant at 2:05 a.m.; (3) the male and female leaving the
restaurant at 2:23 a.m.; (4) the male and female next to the
SUV at 2:24 a.m.; and (5) the SUV leaving the parking lot at
2:27 a.m. At trial, Moore reviewed the footage and identified
the male as defendant and the female as Dunn. He pointed out
“the shoes [defendant]'s wearing on the Denny's
video that was after the shooting are consistent with the
shoes worn by the [male] at the ampm on Brundage and
H.”
e. Defendant's arrest and interview.
On April 10, 2014, at or around noontime, in the parking lot
of America's Best Inn near the intersection of East
Brundage Lane and Weedpatch Highway, officers spotted
defendant sitting in the front passenger seat of a silver
1998 Toyota 4Runner. Defendant exited the vehicle and
“immediately walked in a northbound direction”
“at a fast pace” toward a gas station. He
“kept looking back” “nervously over his
shoulder.” Defendant approached a customer who was
refueling a red Ford Explorer. The two entered the Ford
Explorer, the customer in the driver's seat and defendant
in the front passenger seat, and departed. Officers pulled
over the vehicle, which, at that moment, “appeared to
be ... occupied by the driver and driver only.” After
the driver complied with commands to vacate the Ford
Explorer, officers ordered “other passengers”
“to get out.” Defendant emerged from the front
passenger door and was detained. At the time of his arrest,
he had a goatee. [Fn.7]
[Fn.7] Meanwhile, officers found Dunn, another man, and a
glass methamphetamine pipe in one of the rooms at
America's Best Value Inn.
At approximately 8:35 p.m., following a recitation of the
Miranda [Fn.8] warning, Moore interviewed defendant
at the Bakersfield Police Department. Defendant acknowledged
he used to live at a residence on Zelda Way for a “long
time, ” but his current living situation was “up
in the air.” He denied having acquaintance with a black
Honda Accord.
[Fn.8] Miranda v. Arizona (1966) 384 U.S. 436.
f. Subsequent searches.
At the time of his arrest, officers seized defendant's
wallet, cell phone, and glass methamphetamine pipe. The
wallet contained the state identification card of a man named
Roop Sandhu. The cell phone contained Rocha's and
McKeen's phone numbers.
Several videos were extracted from the cell phone. One video,
which was about 13 minutes in length and marked and received
into evidence as People's Exhibit No. 8- A, featured a
conversation between a female and a male in which another
male interjected intermittently. For the majority of the
video, which was filmed by the female, due to the placement
of the camera, the faces of the speakers could not be seen.
Later, the female repositioned the camera, which showed (1) a
male wearing a red hooded sweatshirt in a residential garage;
and (2) a male wearing a white tank top in a bedroom. The
footage established the conversation was primarily between
the female and the male wearing the red hooded sweatshirt,
the latter of whom sounded distraught. The male wearing the
white tank top did not appear in the footage until after the
female left the male wearing the red hooded sweatshirt in the
garage. At trial, Moore watched People's Exhibit No. 8-A.
He identified the male in the red hooded sweatshirt as
Sandhu, the male in the white tank top as defendant, and the
female voice as belonging to defendant's wife Melissa
Vasquez. [Fn.9] Moore testified he could recognize
Melissa's voice because he had spoken or listened to her
numerous times.[3]
[Fn.9] The record refers to defendant's wife as either
Melissa Vasquez or Melissa Cornelius. To avoid confusion, we
simply refer to her as Melissa.
Another video, which was about 10 minutes in length and
marked and received into evidence as People's Exhibit No.
9-A, featured a conversation between a male and female inside
a moving vehicle at nighttime. During the conversation, the
female sounded distressed. Due to the darkness as well as the
placement of the camera, the faces of the speakers could not
be seen. At trial, Moore watched People's Exhibit No.
9-A. He identified the male voice as belonging to defendant
and the female voice as belonging to Dunn. Moore testified he
could recognize their voices because he had spoken or
listened to them numerous times.[4]
On April 10, 2014, at approximately 8:35 p.m., officers
executed a search warrant at 2001 Custer Avenue. They found a
red Dynasty Motors paper plate on a hallway countertop;
photographs of defendant; a “Notice to Appear”
bearing defendant's name; a utility bill addressed to
defendant; and a “Probable Cause Determination”
listing 6812 Zelda Way as defendant's “last known
address.” (Boldface & some capitalization omitted.)
g. Gang expert.
Officer Beagley, the prosecution's gang expert, testified
the Varrio Bakers are a criminal street gang in Bakersfield
with “well over several hundred” members, most of
whom are Hispanic. They claim as their “turf” the
area of the city bordered by Truxtun Avenue to the north, Eye
Street to the west, Brundage Lane to the south, and either
Dr. Martin Luther King Boulevard or Washington Street to the
east. Their primary activities include murder, assault with a
deadly weapon, illegal firearm possession, robbery,
carjacking, automobile theft, drug sales, and vandalism.
Varrio Bakers members have been convicted of assault with a
deadly weapon, assault with a firearm, illegal firearm
possession, robbery, transportation of controlled substances,
and gang participation.
To identify themselves, Varrio Bakers sport tattoos of the
name of the gang and/or abbreviations thereof, e.g.,
“V” (for Varrio) and “VB, ”
“VBKS, ” and “VE BE” (for Varrio
Bakers). In addition, because Bakersfield is south of Delano,
the “cutoff line” “separat[ing] Northern
and Southern California, ” Varrio Bakers are affiliated
with the Sureños and the Mexican Mafia. Hence, Varrio
Bakers adopt symbols associated with the Sureños and
the Mexican Mafia, including the color blue, the word
“sur” (for Sureños), the letter
“M” (for Mexican Mafia), and the number
“13” signifying the 13th letter of the alphabet
“M” (for Mexican Mafia).
According to Beagley, “[r]espect amongst Varrio
Bakers” is “huge.” He detailed:
“The one who is putting in the most work, the one who
is active is going to be more respected and be a higher rank.
He's also going to be respected and feared by ... the
rival gangs. [¶] ... [¶] ... It also goes to
citizens. You know, why put VB on your face? Why put VB on
the back of your head? They demand respect. They think
you'll respect them if they have these scary tattoos on
their head or their face. [¶] ... [¶] ...
[Something] that comes to mind is a conversation ... with ...
Dominick Pena[, a Varrio Baker].... I asked him what he would
do, basically, if he was disrespected. He said depending on
the level of disrespect, he may give them an ass-whipping or
he may kill them, depending on how bad he was
disrespected.”
Beagley watched People's Exhibit No. 8-A, the
conversation between Melissa and Sandhu, and verified the
filming took place in the garage of 6812 Zelda Way. He
remarked:
“I found it significant that [defendant's] wife,
girlfriend, whatever, she was the one doing the-basically the
interview of ... Sandhu. He was terrified out of his mind and
basically he was talking about how he messed up and he
didn't do what he was supposed to do....
“Tony was having him do crimes for him, so he
didn't have to do them himself. He was using somebody,
basically a weak-minded individual to do some crimes for him.
He was crying about it and was very scared of Tony. He was
terrified. After the video was done, it shows Tony asking
Melissa, hey, did you get that, did you get that?”
With regard to Sandhu's comments about “never
bring[ing] ... pigs to [defendant's] house, ”
Beagley noted the repercussions of “snitching” in
the context of gang culture:
“[S]nitching is basically tattling, tattle-telling,
telling on each other for crimes that have been committed.
Snitching is frowned upon within gang culture.... [¶]
... [¶] ... [I]t could cost them their life. It could
cause them to be beat up, which is why we go out of our way
to make sure that doesn't happen when we work with
informants. We don't want them to be found out.”
Beagley watched People's Exhibit No. 9-A, the
conversation between defendant and Dunn. He remarked:
“I talked about how respect is a big part of gang
culture and gang lifestyle. In the video [defendant] tells
... Dunn-I remember him saying straight-up disrespect, then
he talked about basically, you know, if I let you get away
with this, then the next one is going to try to get away with
it.
“I found that very significant. It goes along the lines
of respect of him and demanding respect. And videotaping the
deal of this, of ... Dunn basically terrified out of her
mind, he's recording this incident basically to show that
he's a bad dude. He's a scary guy. He makes people
cry.
“He can show other people this video of how bad of a
guy he is.”
Based on police reports, photographs, and discussions with
other officers, Beagley opined defendant was a Varrio Baker
at the time of the 7-Eleven shooting. When he was arrested,
defendant was wearing blue attire. His body was covered with
numerous gang-related tattoos, including the initials
“VB” on his head and lower thigh; the word
“SUR” on his chest; the word “Baker”
across his stomach; and the Roman numeral “X” on
his right arm and the number “3” on his left arm,
forming the number “13.” Defendant was charged
with murder, inter alia, one of the gang's primary
activities. In a 1995 interview with a detective, defendant
admitted committing grand theft auto more than 10 times with
two other Varrio Bakers members. In 2001, officers obtained
photographs of defendant “throwing up the V
[sign]” for “Varrio Bakers” with either his
hand or elbows. During a 2001 traffic stop of defendant's
vehicle, officers found two loaded firearms, a significant
amount of methamphetamine, and a photograph of defendant with
another Varrio Bakers member. In 2007, officers searched
defendant's residence at 1115 Sandra Drive and found two
loaded firearms, an ounce of methamphetamine, and a belt
buckle bearing the letter “V” for “Varrio,
” leading to his arrest for selling drugs and illegally
possessing firearms. During a 2012 traffic stop of
defendant's vehicle, officers found $1, 200 and 12 grams
of “bunk dope, ” leading to his arrest for
selling drugs. Defendant then admitted being an active Varrio
Baker and associating with other Varrio Bakers. In 2013,
officers searched defendant's residence at 6812 Zelda Way
and found a loaded firearm and a large letter “V”
spray-painted on the garage floor. Defendant claimed he
“wasn't active because he was damn near 40”
but acknowledged he had not “dropped out” of the
gang.
The prosecutor asked hypothetically whether a Varrio Baker
would feel disrespected “if someone were to go up to
... [his] house and demand[ ] a car that is located at the
house, then being unable to get it, steal[ ] a car that's
on the property of the house and ... specifically intend[ ]
to make a scene for video[ ]cameras that are associated with
the house....” Beagley responded:
“Absolutely. [¶] ... [¶] ... I think it's
one thing to disrespect a Varrio Baker out in the street or
out in the hood but it's another thing to come to his
house, where his wife can live in, his kids can live in, his
mom, and disrespect him severely. I mean, taking a car from
his house; that's where he lives. That's where his
family is at. That's total disrespect. [¶] ...
[¶]
“... [H]e's going to retaliate. He's going to
retaliate severely. He may severely beat up the subject who
did it. He may stab him. He may shoot him, kill him.”
The
prosecutor then asked how the Varrio Bakers benefit when the
“Varrio Baker
gang member who has someone come to his house and ... steal[
] a car from the house” “[comes] into contact
with the stolen vehicle” and “fire[s] shots at
the vehicle and its occupants upon seeing it.” Beagley
responded:
“Some of the benefits would be, basically, we're
talking about respect. By coming to a Varrio Bakers'
house where his wife could live, his kids could live, and
taking that car, even though there are cameras present,
making a scene, would be very disrespectful to that Varrio
Bakers gang member.
“By him retaliating upon seizing his vehicle, and
retaliating, basically he was disrespected. He's trying
to gain that respect back. He's basically getting
respect. On the benefit of the Varrio Bakers, basically
it's showing that when somebody disrespects one of its
members, they take care of business. They go as far, even, to
shoot and kill someone who even took some property from their
house.
“It shows that the gang itself is a violent gang. It
sends a message to the rival gangs. It sends a message to the
citizens of Bakersfield that Varrio Bakers aren't to be
messed with. I think it also raises the status of that Varrio
Baker within his gang that he's a shooter. He's a
killer. He would be somebody that would have some influence
on the gang. [¶] ... [¶]
“... I think the fact that the passenger also was shot
and killed in the vehicle, basically that goes to show that
if you disrespect a Varrio Baker, not only is your life in
danger, it could be somebody you're with. It could be
your mom, a child. No. one is safe around you once you commit
that level of disrespect against a member of the Varrio
Bakers. [¶] ... [¶]
“... [I]t strikes fear into the community. I've
talked about some different times where citizens were
victimized by Varrio Bakers. It may prevent citizens who are
victimized in the future-they may not cooperate. They'll
give them their property. They won't fight back.
“If they witness a crime, they may not want to testify
because they know what the Varrio Bakers gang members are
capable of.”
II.
Defense's case-in-chief.
a. Jazmine Barron.
Barron lived with Rocha in November 2013. He used and sold
drugs and “always” carried a gun “because
he had a lot of problems.” Rocha also possessed a
“bad temper” and threatened others with the gun
“when it wasn't his way.” At trial, Barron
viewed a photograph of the revolver retrieved from bushes
adjacent to 7-Eleven's parking lot on the night of the
shooting and testified it belonged to Rocha.
In early 2014, Rocha told Barron he “was coming back
from Baja, California” or “Calexico” with a
black Honda containing heroin. Later, he mentioned he gave
the car to McKeen “to get what he wanted from her,
” but she “sold the car” without telling
him.
Barron first met defendant “when [she] was running
around in the streets homeless” and considered him
“a friend.” She has “never seen him get
violent.” Barron also knew Dunn, describing her as
someone who “was always there” and “would
do anything and everything she can just to be with
[defendant].”
b. Heather Stewart.
Stewart dated Rocha's roommate and lived with the men in
September and October 2013. At the outset, she thought Rocha
was “an okay guy.” However, Stewart later
discovered he was abusive towards women. One time, Rocha
showed her his gun, which he named “bitch” and
“always” “carried ... with him.” It
was “dark in color, ” “very heavy, ”
and “had a long barrel.” At trial, Stewart viewed
a photograph of the revolver retrieved from bushes adjacent
to 7-Eleven's parking lot on the night of the shooting
and testified Rocha's gun “looked like that.”
Stewart knew defendant and considered him a friend. She was
at his house when “a girl had brought [him]” a
black Honda. Subsequently, Stewart learned from Rocha the
Honda belonged to him and he stole defendant's Saturn in
turn. He also revealed the vehicle contained two pounds of
heroin and he “was late on a deal where he was supposed
to drop that car off, ” putting his life at risk.
Stewart told Rocha she knew defendant and was willing to
facilitate a trade. She phoned defendant and arranged a swap.
When Stewart went to defendant's house, however,
defendant and his family had already moved out.
Vasquez, 2018 WL 716845, at *2-16 .
III.
DISCUSSION
A.
Jurisdiction
Relief
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution, laws, or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 n. 7 (2000). Petitioner asserts that he
suffered violations of his rights as guaranteed by the United
States Constitution. The challenged conviction arises out of
the Kern County Superior Court, which is located within the
jurisdiction of this court. 28 U.S.C. § 2254(a); 28
U.S.C.§ 2241(d).
On
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997) (holding the AEDPA only applicable to cases filed
after statute's enactment). The instant petition was
filed after the enactment of the AEDPA and is therefore
governed by its provisions.
B.
Legal Standard of Review
A
petition for writ of habeas corpus under 28 U.S.C. §
2254(d) will not be granted unless the petitioner can show
that the state court's adjudication of his claim: (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 412-413.
A state
court decision is “contrary to” clearly
established federal law “if it applies a rule that
contradicts the governing law set forth in [the Supreme
Court's] cases, or “if it confronts a set of facts
that is materially indistinguishable from a [Supreme Court]
decision but reaches a different result.” Brown v.
Payton, 544 U.S. 133, 141 (2005) (citing
Williams, 529 U.S. at 405-406).
In
Harrington v. Richter, 562 U.S. 86, 101 (2011), the
U.S. Supreme Court explained that an “unreasonable
application” of federal law is an objective test that
turns on “whether it is possible that fairminded
jurists could disagree” that the state court decision
meets the standards set forth in the AEDPA. The Supreme Court
has “said time and again that ‘an unreasonable
application of federal law is different from an incorrect
application of federal law.'” Cullen v.
Pinholster, 563 U.S. 170, 203 (2011). Thus, a state
prisoner seeking a writ of habeas corpus from a federal court
“must show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility of
fairminded disagreement.” Harrington, 562 U.S.
at 103.
The
second prong pertains to state court decisions based on
factual findings. Davis v. Woodford, 384 F.3d 628,
637 (9th Cir. 2003) (citing Miller-El v. Cockrell,
537 U.S. 322 (2003)). Under § 2254(d)(2), a federal
court may grant habeas relief if a state court's
adjudication of the petitioner's claims “resulted
in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” Wiggins v. Smith, 539 U.S.
510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484,
1500 (9th Cir. 1997). A state court's factual finding is
unreasonable when it is “so clearly incorrect that it
would not be debatable among reasonable jurists.”
Jeffries, 114 F.3d at 1500; see Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004),
cert.denied, Maddox v. Taylor, 543 U.S.
1038 (2004).
To
determine whether habeas relief is available under §
2254(d), the federal court looks to the last reasoned state
court decision as the basis of the state court's
decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803
(1991); Robinson v. Ignacio, 360 F.3d 1044, 1055
(9th Cir. 2004). “[A]lthough we independently review
the record, we still defer to the state court's ultimate
decisions.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002).
The
prejudicial impact of any constitutional error is assessed by
asking whether the error had “a substantial and
injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993); see also Fry v. Pliler, 551 U.S. 112,
119-120 (2007) (holding that the Brecht standard
applies whether or not the state court recognized the error
and reviewed it for harmlessness).
C.
Review of Petition
Petitioner
raises ten claims in his petition: 1) The pretrial
identification of Petitioner was unduly suggestive and
unnecessary in violation of his due process rights; 2) The
trial court failed to instruct on self-defense and imperfect
self-defense in violation of Petitioner's due process
rights; 3) Defense counsel was ineffective in failing to
request instruction on perfect and imperfect self-defense; 4)
Petitioner was denied due process by the admission of
prejudicial gang evidence and by the instruction that
permitted the jury to consider gang evidence on the issue of
motive; 5) Petitioner was denied due process by the admission
of prejudicial video evidence that served no other purpose
than to show his evil character to establish a probability of
his guilt; 6) The prosecutor committed misconduct by arguing
facts not in evidence; 7) The trial court erred by excluding
admissible hearsay of a witness thereby denying Petitioner
his right to present a complete defense; 8) Petitioner was
wrongly given an elevated sentence for attempted murder
without a proper jury finding that the crime was willful,
deliberate and premeditated as required by Apprendi;
9) The conviction for criminal threats was unsupported by
substantial evidence showing a true threat within the meaning
of Cal. Penal Code § 422; and 10) The cumulative impact
of the series of trial errors denied Petitioner his right to
a fair trial.
1.
Pretrial Identification
Petitioner
first claims the trial court erred in admitting a pretrial
identification because the identification procedure was
unduly suggestive and unnecessary. Petitioner raised this
claim on direct review. In the last reasoned decision, the
Fifth DCA denied the claim as follows:
a. Background.
At the June 2014 preliminary hearing, Rocha testified he was
“70 percent” certain that defendant was the
7-Eleven gunman.
Defendant moved in limine to “[e]xclude testimony or
evidence of a photo lineup as unduly suggestive.”
(Boldface omitted.) The prosecutor opposed the motion.
Thereafter, the court conducted a hearing pursuant to
Evidence Code section 402.
Defense investigator Mattson testified she interviewed Rocha
in county jail on September 4, 2014. When asked whether he
“was able to get a look at the person who fired the
shots” at 7-Eleven, Rocha said he “didn't
see” the gunman and “just saw that he had a
beanie.” Concerning the interview at the Bakersfield
Police Department, during which he was shown defendant's
photograph, Rocha recounted “the officer kept pointing
at the picture” and “told him that they had
[defendant] on an ankle monitor in that area.” Rocha
told Mattson “something about feeling pressured ... to
say it was [defendant].” He further disclosed he
“spoke to someone from the D.A.'s office about the
case.” Rocha was “promised ... the moon and
stars” “if he identified [defendant] as the
shooter” but “threatened ... with jail if he
[did] not say it was [defendant].” Finally, he told
Mattson he “made an assumption based on the
dark-colored car, ” “made an assumption that it
was [defendant] because he had bad history with him, ”
“didn't know for sure that that was the car,
” and “did not see who the shooter was.”
Rocha testified he did not “remember much” about
the 7-Eleven shooting. He recalled being in the passenger
seat when he heard a gunshot. Rocha “barely looked,
” saw a black car, and “threw [himself] in
between the seats.” He emphasized, “[A]ll I saw
was a guy with a beanie and goatee, the black car.”
During an interview with a detective at the Bakersfield
Police Department, Rocha was shown “a lot of
pictures.” The detective “mentioned something
about [a] monitor that went off at [the] time of the crime,
” “pointed [at a] picture” of defendant,
and “asked ... if [defendant] was the person.”
Rocha, who had “never seen [defendant] before, ”
“[felt] pressure when [the detective] point[ed] the
finger and ask[ed] ... ‘Is this the person?'
” and answered, “[M]aybe.”
On cross-examination, Rocha testified his memory of the
7-Eleven shooting was not “better ... the day that it
happened than it [was] ... eight months later.” He
“[didn't] think” he phoned 911 immediately
after the shooting but acknowledged doing so after he heard a
recording of his 911 call, in which he described the
gunman's vehicle as a black Honda Accord. Rocha then
heard recordings of his subsequent interviews with officers
and acknowledged telling them the gunman was a Hispanic male
with a beanie and goatee and he “saw [the gunman's]
face.” He also acknowledged saying, “If I see
him, I'll know him.” With regard to his interaction
with the district attorney's office, Rocha conceded he
was never “specifically told that [he] had to identify
[defendant]” and was “repeatedly told that the
only thing ... expect[ed] from [him] [was] the truth.”
Moore testified he first interviewed Rocha at Kern Medical
Center. There, Rocha verified the 7-Eleven gunman drove a
black Honda and stated he “saw the driver very
well.” He also expressed “wanting to get his
daughter out of town before he started saying names.”
Afterward, Moore “received information from multiple
sources” about an “ongoing feud” between
Rocha and defendant “regarding the black Honda, ”
contacted Miller, and confirmed the GPS data from
defendant's ankle monitor placing defendant at 7-Eleven
at the time of the shooting. During the interview with Rocha
at the Bakersfield Police Department, without mentioning
defendant's name, Moore told Rocha “that the guy
that he was in a dispute with over the car, his GPS had put
him at the 7-Eleven gas station at the time of the
shooting.” Moore divulged this information because he
“wanted [Rocha] to feel comfortable that we were going
to protect him the best we could.” Later, Moore showed
Rocha a photograph of defendant and asked, “Is this the
guy that shot you?” Rocha responded in the affirmative.
As to why he showed Rocha defendant's photograph, Moore
explained:
“I had multiple reasons. One of the main ones is it was
apparent to me that the two men had a relationship, and that
... Rocha knew [defendant]. [¶] And I was confirming
that the Tony Vasquez that I believed it was was the same
Tony Vasquez that he was talking about.
“The other reason is we were actively looking for
[defendant], and I also wanted to make sure that this was the
right person that we were talking about and not some other
relative or unknown Tony Vasquez.” The court admitted
Rocha's pretrial identification testimony:
“In regard to showing [Rocha] the one photograph which
Detective Moore showed, in regard to that, I do believe that
that was unduly suggestive and unnecessary. [¶] ...
[¶]
“Given the totality of the circumstances of the
numerous statements made by [Rocha] before and also during
the time that the photograph was shown, there is a level of
certainty that would allow this information to be provided to
the jury by way of testimony.”
b. Analysis.
“A claim that an identification procedure was unduly
suggestive raises a mixed question of law and fact to which
we apply a standard of independent review, although we review
the determination of historical facts regarding the procedure
under a deferential standard.” (People v.
Clark (2016) 63 Cal.4th 522, 556-557.)
“In order to determine whether the admission of
identification evidence violates a defendant's right to
due process of law, we consider (1) whether the
identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification
itself was nevertheless reliable under the totality of the
circumstances, taking into account such factors as the
opportunity of the witness to view the suspect at the time of
the offense, the witness's degree of attention at the
time of the offense, the accuracy of his or her prior
description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse
of time between the offense and the identification.”
(People v. Cunningham (2001) 25 Cal.4th 926, 989.)
“Moreover, there must be a ‘substantial
likelihood of irreparable misidentification' under the
‘“‘totality of the
circumstances'”' to warrant reversal of a
conviction on this ground.” (Id. at p. 990.)
Assuming, arguendo, Rocha's pretrial identification
testimony was obtained through an impermissibly suggestive
procedure, in view of the totality of the circumstances, we
find no substantial likelihood of irreparable
misidentification. The record shows Rocha loaned his
friend's black four-door 2011 Honda Accord with a red
Dynasty Motors paper plate to McKeen, who, in turn, sold the
car to someone named “Tony Vasquez or Velasquez.”
She brought Rocha to 6812 Zelda Way, one of defendant's
known addresses, where the Honda Accord was parked on the
front lawn. Individuals standing outside the residence told
Rocha that “Tony” “wasn't home.”
After Rocha took the Saturn from 6812 Zelda Way, he obtained
“Tony's” cell phone number from McKeen and
contacted him to set up an exchange. Following
defendant's arrest, officers seized defendant's cell
phone, which contained Rocha's and McKeen's phone
numbers. Officers later searched 2001 Custer Avenue, another
of defendant's known addresses, and found a detached red
Dynasty Motors paper plate, inter alia. Miller's
testimony further verified defendant possessed a black Honda
Accord more than a week before the 7-Eleven shooting.
On the morning of the 7-Eleven shooting, although Rocha
glanced momentarily at the gunman, he nonetheless was able to
discern the gunman was a Hispanic male with a beanie and
goatee in the driver's seat of the Honda Accord. Rodrigo,
a percipient witness, saw a black four-door sedan. Within
minutes of the shooting, Rocha (1) phoned 911 and identified
the gunman's vehicle as a black Honda Accord; and (2)
told officers who arrived on the scene the gunman was a
Hispanic male with a beanie and goatee in a black car. In
subsequent interviews with officers at Kern Medical Center,
he reiterated the gunman was a Hispanic male with a beanie
and goatee, adding he “saw [the gunman's]
face” and could identify him “[i]f [he] s[aw]
him” again. (Cf. People v. Kennedy (2005) 36
Cal.4th 595, 611 [length of time between crime and
identification “only three weeks”], disapproved
in part by People v. Williams (2010) 49 Cal.4th 405,
459.)
Over 11 hours after the shooting and six hours after being
discharged from the hospital, Rocha spoke with Moore at the
Bakersfield Police Department. Before Moore displayed
defendant's photograph, he told Rocha “the guy
who[m] [Rocha] had conflict with” over the Honda Accord
wore an ankle monitor and the GPS data from that monitor
placed “the guy” at 7-Eleven at the time of the
shooting. According to Rocha, he already knew “the guy,
” i.e., Tony Vasquez or Velasquez, “had a
monitor.” When he was shown defendant's photograph
and asked whether defendant was the gunman, Rocha promptly
answered, “Yeah, if you put a beanie on him.” At
the preliminary hearing, Rocha testified he was “70
percent” certain that defendant was the gunman.
GPS data from defendant's ankle monitor confirmed (1)
defendant was at 7-Eleven at the exact time the shooting
occurred; and (2) defendant fled from 7-Eleven on foot
immediately after the shooting occurred. GPS data also placed
defendant at ampm a few minutes before the shooting and at a
Denny's restaurant more than two hours after the
shooting; concurrent surveillance footage recorded at these
establishments corroborated the data. In particular,
ampm's footage captured defendant alongside a black car.
(See People v. McGriff (1984) 158 Cal.App.3d 1151,
1157 [“Although evidence against appellant was largely
circumstantial, the circumstantial evidence was
overwhelming.”].)
Vasquez, 2018 WL 716845, at *19-21.
a.
Legal Standard
Due
process prohibits the admission of eyewitness identifications
obtained after police have arranged identification procedures
so impermissibly suggestive as to give rise to a
“‘very substantial likelihood of irreparable
misidentification.'” Perry v. New
Hampshire, 565 U.S. 228, 232 (2012) (quoting Simmons
v. United States, 390 U.S. 377, 384 (1968)). Courts
employ a two-part analysis to evaluate whether an
identification has been irreparably tainted by an
impermissibly suggestive pretrial identification procedure.
See United States v. Love, 746 F.2d 477, 478 (9th
Cir. 1984). The first step is to determine whether the
pretrial identification was unduly suggestive.
Simmons, 390 U.S. at 384. This may occur when a
photographic identification procedure “emphasize[s] the
focus upon a single individual, ” thereby increasing
the likelihood of misidentification. United States v.
Bagley, 772 F.2d 482, 493 (9th Cir. 1985). Whether an
identification procedure was unduly suggestive is a
fact-specific determination, which may involve consideration
of the size of the array, the manner of its presentation by
the officers, and the details of the photographs themselves.
Id.
If the
identification procedure was unduly suggestive, the second
step requires a determination of whether the totality of the
circumstances surrounding the eyewitness's identification
indicates that the identification was nonetheless reliable.
Neil v. Biggers, 409 U.S. 188, 199 (1972);
Simmons, 390 U.S. at 383. Factors considered in
assessing reliability include: (1) the opportunity to view
the criminal at the time of the crime; (2) the witness's
degree of attention; (3) the accuracy of the prior
description; (4) the witness's level of certainty at the
confrontation; and (5) the length of time between the crime
and the identification. Neil, 409 U.S. at 199-200;
Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The
corrupting effect of the suggestive identification itself is
to be weighed against these factors. Id. Where
“the indicia of reliability are strong enough to
outweigh the corrupting effect of the police arranged
suggestive circumstances, the identification evidence
ordinarily will be admitted, and the jury will ultimately
determine its worth.” Perry v. New Hampshire,
565 U.S. 228, 232 (2012).
Further,
any possible prejudice that the defendant may have suffered
from suggestive identification procedures may be mitigated by
cross-examination and other courtroom safeguards. See
Simmons, 390 U.S. at 384 (danger that photo lineup
technique may result in conviction based on misidentification
may be lessened by cross-examination at trial).
b.
Analysis
In this
case, the state court assumed that the identification
procedure was impermissibly suggestive; however, the court
determined that there was no substantial likelihood of
misidentification. The state court determination was not
objectively unreasonable.
Considering
the totality of the circumstances, there is no reasonable
likelihood of irreparable misidentification. As noted by the
appellate court, Rocha stated he had seen the gunman's
face and could identify him “if he saw him”
again. Vasquez, 2018 WL 716845, *21. He advised
officers who arrived on the scene that the gunman was a
Hispanic male with a beanie and a goatee, and he was in a
black Honda Accord. Id. When Rocha was shown a
photograph of Petitioner, he immediately identified him as
the gunman. Id. Rocha's identification was
corroborated with substantial evidence. Id. GPS data
from Petitioner's ankle monitor confirmed he was at the
AM/PM minimart at the exact time of the shooting.
Id. It further showed Petitioner fled immediately
after the shooting. Id. In addition, video
surveillance footage captured Petitioner at the AM/PM
standing alongside a black car. Id.
Based
on the foregoing, Petitioner has failed to demonstrate that
the state court rejection of his claim was contrary to
clearly established Supreme Court precedent, or that the
state court's decision was an unreasonable application of
the factors noted above. Therefore, the claim should be
denied.
2.
Instructional Error
Petitioner
states there was evidence to support a theory that victim
Rocha had a gun and may have fired one or two shots first. He
claims the trial court committed prejudicial error by failing
to instruct on self-defense and imperfect self-defense.
Petitioner presented this claim on direct appeal. The Fifth
DCA denied the claim in the last reasoned decision as
follows:
a.
Background.
At the
jury instruction conference, the following exchange
transpired:
“THE COURT: And just so we're clear, I did not hear
any substantial evidence that would necessitate giving a[n]
... instruction on voluntary manslaughter or any on
self-defense or any related instructions. [¶] Any record
either counsel would like to make in that regard?
“[DEFENSE COUNSEL]: Neither of those instructions are
being requested by the defense.
“[PROSECUTOR]: Submit, your Honor.
“THE COURT: Okay. ...”
In his
summation, defense counsel theorized Rocha provoked the
shooting at 7- Eleven:
“[W]hat if [Rocha] actually had that gun that we talked
about that we knew that he did have and of course he denies
ever brandishing. What if that gun was-when [Rocha] saw that
Honda come up, recognized the Honda. Knows I gotta get that
car back because I want that heroin, otherwise, I'm gonna
get killed for not delivering the heroin that I smuggled up
here from Mexico. And so he pulls his gun because I'm
going to get that car back.
“... We know [Rocha] had a gun. We know he was furious
about not having that Honda, whether it was really for heroin
reasons or not. We know that he previously went to
[defendant]'s house and threatened him through the
security cameras. So this wouldn't necessarily be out of
character for [Rocha] to start threatening again. [¶]
... [¶]
“Evidence that [Rocha] brandished his gun. Was there
anything that supports that theory? Absolutely. What was the
first thing [Rocha] did after the shots were fired? Before he
called 911. Before he checked on his friend who was sitting
next to him, shot in the head, what was the first thing he
did? He took his gun and he went and hid his gun in the
bushes.
“Why? Why do you need to hide your gun if you
haven't done something with it that you weren't
supposed to do? What reason is there? There's no reason.
The only reason you go and you hide your gun before you call
911, before you check on your friend who has just been shot
in the head is because you don't want to get in trouble
because you've done something with that gun that you
weren't supposed to do, like point it at someone who then
fired back at you.
“And then he lies about the gun and continues to lie
about the gun to the police. Why? Because he doesn't want
them to know he had a gun because he did something he was not
supposed to do with that gun and he doesn't want to get
in trouble. That's why he hid the gun. That's why he
lied about the gun. That's why he continues to lie about
the gun. Again, why would he need to lie about the gun if he
hadn't done anything wrong with that gun?
“And there are times in the interview and you can go
back and listen to them and watch them all.... [Rocha]
repeatedly tells Detective Moore that he feels guilty and he
feels like he got his friend killed. He feels like his
friend's family is going to bring this back on him like
he's the reason that [Ortiz] is dead.
“Maybe he's being honest there. Maybe he is the
reason [Ortiz is] dead. Maybe if [Rocha] hadn't pulled
his gun and acted like a lunatic, trying to get that heroin
in that car back, no shots would have been fired that night.
[Ortiz] would still be here. We wouldn't be here. [Rocha]
feels guilty because he did pull that gun and that set
everything in motion.”
b. Analysis-instruction on self-defense.
“‘“It is settled that in criminal cases,
even in the absence of a request, a trial court must instruct
on general principles of law relevant to the issues raised by
the evidence”' and ‘“necessary for the
jury's understanding of the case.”'
[Citations.] It is also well settled that this duty to
instruct extends to defenses ‘if it appears ... the
defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense and the
defense ...