DOLLY M. GEE, District Judge.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the second amended petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
This Court finds an appeal would not be taken in good faith, and petitioner has not made a substantial showing that he has been denied a constitutional right, for the reasons set forth in the Report and Recommendation; thus, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R.App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); Mayfield v. Calderon, 229 F.3d 895, 900 (9th Cir.2000).
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.
ROSALYN M. CHAPMAN, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On September 9, 2004, in Orange County Superior Court case no. 02CF0624, a jury convicted petitioner Alonso L. Hernandez, aka Alonso Leroy Hernandez, aka Alonso Leeroy Hernandez, of one count of discharging a firearm in a school zone in violation of California Penal Code ("P.C.") § 626.9(d) (count 1), one count of discharging a firearm with gross negligence in violation of P.C. § 246.3 (count 2), one count of attempted murder in violation of P.C. § 664/187(a) (count 3), one count of assault with a deadly weapon (firearm) in violation of P.C. § 245(a)(2) (count 4), one count of domestic battery in violation of P.C. § 243(e)(1) (count 5), one count of making criminal threats in violation of P.C. § 422 (count 6), and one count of attempting to evade a peace officer while driving recklessly in violation of California Vehicle Code ("Veh. C.") § 28002 (count 7); and, as to counts 3, 4 and 6, the jury found it to be true that petitioner personally used a firearm within the meaning of P.C. § 12022.5(a), and as to count 3, the jury also found it to be true that petitioner inflicted great bodily injury within the meaning of P.C. § 12022.7(a) and personally discharged a firearm within the meaning of P.C. § 12022.53. Clerk's Transcript ("CT") 75-78, 220-232, 260-62. On January 7, 2005, petitioner was sentenced to the total term of 30 years in state prison. CT 298-300, 302-4.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 304, which in an unpublished opinion filed August 2, 2006, 2006 WL 2147733, "reverse[d] [petitioner's] conviction for making a criminal threat" and "[i]n all other respects, [affirmed] the judgment. . . ." Lodgment no. 1 at 18. On September 5, 2006, petitioner, represented by counsel, filed a petition for review in the California Supreme Court,
The California Court of Appeal, in affirming, in part, petitioner's convictions, made the following factual findings:
March 4, 2002 Incident. In February 2002, Alicia Garcia lived with petitioner and their one-year-old daughter at petitioner's sister's house. Garcia and petitioner argued, and later when Garcia was asleep, petitioner hit her on the face and leg, leaving visible bruises. Approximately one week later, Garcia's parents picked up Garcia and her daughter and took them to live at their house. Garcia did not tell petitioner she was leaving.
On March 4, 2002, Garcia and her father were home when the telephone rang, but Garcia did not answer because she thought it was petitioner. Later, petitioner arrived at the house to see his daughter. Garcia's father repeatedly told petitioner that he should stay away from Garcia for a while. Petitioner was upset, and he stood up and walked around. Garcia saw a "bulge" in his waistband and thought he had a gun. Petitioner left, and Garcia told her father petitioner had a gun. Garcia heard what she thought was petitioner kicking the toys on the front lawn.
Samuel Varela, a neighbor, was standing on his front yard with his back to the street when he heard gunshots. Varela turned around and saw a man he later identified as petitioner firing a gun into the air. Garcia and her father heard the gunshots. Petitioner got into his car and drove away.
Later, officers found four Speer ninemillimeter cartridge casings at the scene. Officers found the casings 248 feet from the Garcias' home, and approximately 750 feet from the closest elementary school. Officers also found petitioner's car approximately one block from the Garcias' home. Inside the car were two Speer nine-millimeter cartridges and a nine-millimeter gun registration in petitioner's name. Officers arrested petitioner and swabbed his hands for gunshot residue, which they found on his left hand.
July 5, 2002 Incident. In July 2002, petitioner was dating Sonia Gutierrez. On July 4, 2002, petitioner, Gutierrez, and her two sons, 11-year-old Gabriel D., and 13year-old Carlos D., went to Gutierrez's sister's house. Carlos and Gabriel saw petitioner drinking beer throughout the evening and thought he was intoxicated. While petitioner drove them to Gutierrez's house, petitioner and Gutierrez argued because he was driving erratically.
When they got home, petitioner, Carlos, and Gabriel lit fireworks in the backyard. An officer arrived, told Gutierrez fireworks were illegal in the City of Orange, and confiscated them. After the officer left, Gutierrez went upstairs and told petitioner to get his belongings and get out of her house. Petitioner and Gutierrez continued arguing as they went downstairs. Petitioner pushed Gutierrez and she fell-Gutierrez stood up and hit petitioner. Gutierrez walked outside, and Gabriel tried to call 911, but the telephone did not work. Gabriel went outside, and Gutierrez told him to go inside and tell petitioner to leave. Gabriel went inside the house, saw petitioner changing his clothes, went back
Earl McCoubrey was standing on top of the apartment complex's garage waiting for a telephone call. McCoubrey carried for protection a "six-inch cold steel recon tanto[ ]" knife in a snapped sheath in the small of his back covered by his sweater. Gutierrez walked towards McCoubrey and "asked [him] to call the police because her boyfriend was not exactly happy." McCoubrey told her he was not going to call the police because he did not know the circumstances, but he would get down, let her use the telephone, and make sure her boyfriend "didn't get her." McCoubrey tossed her the telephone and got off the roof. Gutierrez told him her boyfriend was probably armed. McCoubrey said, "that [was] okay, [he's] not worried, and [he] lifted up [his] sweater on [his] back and showed [her] the knife." Gutierrez called the police.
McCoubrey saw petitioner walking towards him and Gutierrez, and he appeared to have been drinking. "[Petitioner] was holding a red flannel shirt against his right hip." Petitioner and Gutierrez started yelling at each other. Gutierrez told petitioner he was not going to touch her children and asked him why he had not left. Petitioner responded he would have left if she had not been calling the police. "[Petitioner] made a beeline for [Gutierrez][,]" and McCoubrey believed he was threatening her. McCoubrey moved between them with his hands at his sides at approximately a 45 degree angle with his palms facing out towards where he was walking. He did not pull his knife or make any aggressive or threatening gestures. Petitioner pulled out a gun and shot McCoubrey in the stomach. Petitioner walked towards Gutierrez and pointed the gun at her. Gutierrez yelled, "`The kids are out here.'" Petitioner "pull[ed] the trigger[,]" but the gun did not fire—it just "click[ed][.]" Petitioner ran away yelling that he was going to kill all of them. He got into his car and drove away.
Officer Serena Cryar of the City of Orange Police Department responded to a domestic disturbance call. She saw McCoubrey lying on the ground motionless. He had a large knife snapped in a sheath strapped to his belt. Cryar removed the knife from the sheath and set it aside for her safety.
After a lengthy car chase in which petitioner eventually evaded officers, officers found petitioner's car in the Lemon Heights area of Santa Ana. A few months later, officers recovered a .45 caliber handgun near where officers found the car. A forensic scientist determined the slug removed from McCoubrey and the casing found at the scene were fired from the gun found near petitioner's car.
Later, Nichols interviewed Gabriel at the police department. Gabriel told Nichols he did not see McCoubrey do anything to petitioner. Gabriel also told him he never saw McCoubrey with a knife.
At trial, Gina Figueroa, a neighbor who was sitting in a car nearby, provided a slightly different account of the July 5, 2002 incident. She testified that when petitioner walked towards them, Gutierrez moved back, but McCoubrey did not move at all. She stated there was no physical contact between petitioner and McCoubrey. She also said McCoubrey regularly carries a knife, but she did not see it because he did not pull it out; it was in its sheath the entire time. She saw petitioner shoot McCoubrey.
Gutierrez's 911 call was played for the jury. During the call, Gutierrez stated, "Don't, don't. Don't, don't do it Alonso.
Petitioner offered the testimony of Gutierrez. Gutierrez testified that at the time of the incident she and petitioner were dating, but she ended the relationship after the incident and had been seeing someone else for a while. She confirmed petitioner was intoxicated, they argued concerning his driving and lighting fireworks, and their argument turned physical. She denied telling Nichols that when petitioner and the boys were lighting fireworks she heard a gunshot.
Gutierrez testified she went outside and asked McCoubrey, whom she did not know and had never seen before, if she could use his telephone. McCoubrey fell off the roof, stood up, and said he was okay. Gutierrez thought he was intoxicated. McCoubrey gave Gutierrez the telephone, and she told him not to get involved. McCoubrey tapped his right side, and Gutierrez saw a large knife in a knife sheath. Gutierrez dialed 911, and petitioner walked outside with his belongings. Petitioner told her to "hang up[ ]" the telephone, and Gutierrez responded, "`no, no.'" Petitioner reached for the telephone, and Gutierrez said, "`don't,' and `don't.'" McCoubrey walked towards them with a knife in his hand pointed forward. Petitioner shot him. After petitioner ran away, Gutierrez knelt beside McCoubrey. She saw the knife, picked it up, and handed it to McCoubrey.
In rebuttal, the district attorney recalled Nichols who had interviewed Gutierrez shortly after the incident. Gutierrez told him that she heard a gunshot when petitioner and the boys were lighting fireworks. She acknowledged seeing McCoubrey previously. She never told him McCoubrey was intoxicated. Gutierrez explained that when she saw petitioner, he pointed the gun at them and told her to get off the telephone. Gutierrez told him she never saw the knife and she never picked it up. Gutierrez was afraid he might shoot her, but she never heard the gun "click." She saw the knife on the ground after the paramedics took McCoubrey.
On September 18, 2007, petitioner filed his initial habeas corpus petition under 28 U.S.C. § 2254 raising the following five claims:
On April 3, 2008, respondent filed a motion to dismiss the amended petition, arguing it remained a "mixed" petition in that petitioner has not exhausted Ground Two. The petitioner did not file an opposition to respondent's motion to dismiss, and on June 10, 2008, this Court found the amended petition was a "mixed" petition, and offered petitioner the opportunity to further amend the amended petition by striking or deleting Ground Two and requesting to proceed only on the exhausted claim, Ground One, as required by Jefferson, 419 F.3d at 1015. On August 27, 2008, petitioner requested to strike or dismiss Ground Two and to proceed only on Ground One, and the Court granted that request. On October 22, 2008, petitioner filed an answer to the pending second amended petition, and on November 28, 2008, petitioner filed his reply or traverse.
The pending second amended petition contains only Ground One, which states:
Petition at 5.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:
28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption byclear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The California Supreme Court reached the merits of petitioner's claims when it denied his petition for review without comment or citation to authority. Gaston
To succeed on an ineffective assistance of trial counsel claim, a habeas petitioner must demonstrate his attorney's performance was deficient and the deficient performance prejudiced the defense. Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The petitioner bears the burden of establishing both components. Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000); Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 764, 145 L.Ed.2d 756 (2000). "Deficient performance is performance which is objectively unreasonable under prevailing professional norms." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.1990) (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2064). Prejudice "focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993); Williams, 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17.
To establish deficient performance, the petitioner must show his counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Williams, 529 U.S. at 391, 120 S.Ct. at 1511. In reviewing trial counsel's performance, the court will "strongly presume[] [that counsel] rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 5, 157 L.Ed.2d 1 (2003). Only if counsel's acts and omissions, examined within the context of all the surrounding circumstances, were outside the "wide range" of professionally competent assistance, will petitioner meet this initial burden. Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 690, 104 S.Ct. at 2068.
If petitioner makes this showing, he must then establish there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Rompilla, 545 U.S. at 390, 125 S.Ct. at 2467. The errors must not merely undermine confidence in the outcome of the trial, but must result in a proceeding that was fundamentally unfair. Williams, 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17; Lockhart, 506 U.S. at 369, 113 S.Ct. at 842-43. However, the Court need not determine whether counsel's performance was deficient before determining whether
The petitioner claims defense counsel was ineffective for "acquiescenc[ing in]. . . the joinder of the March [4, 2002] and July [5, 2002] incidents." There is no merit to this claim, as the California Court of Appeal found.
California law provides for the joinder of offenses of the same class, P.C. § 954, and offenses "are of the same class when they all involve assaultive crimes against the person." People v. Leney, 213 Cal.App.3d 265, 269, 261 Cal.Rptr. 541 (1989); People v. Maury, 30 Cal.4th 342, 395, 133 Cal.Rptr.2d 561, 608-09, 68 P.3d 1 (2003), cert. denied, 540 U.S. 1117, 124 S.Ct. 1058, 157 L.Ed.2d 909 (2004). For example, crimes such as kidnapping, assault, rape and murder are of the same class for purposes of joinder. See, e.g., People v. Alvarez, 14 Cal.4th 155, 188, 58 Cal.Rptr.2d 385, 404, 926 P.2d 365 (1996), cert. denied, 522 U.S. 829, 118 S.Ct. 94, 139 L.Ed.2d 50 (1997); People v. Kemp, 55 Cal.2d 458, 476-77, 11 Cal.Rptr. 361, 371, 359 P.2d 913 (1961), cert. denied, 368 U.S. 932, 82 S.Ct. 359, 7 L.Ed.2d 194 (1961).
California has a "strong legislative policy in favor of joinder of charges unless there is prejudice." People v. Gomez, 24 Cal.App.4th 22, 28, 29 Cal.Rptr.2d 94 (1994); People v. Soper, 45 Cal.4th 759, 771-72, 89 Cal.Rptr.3d 188, 199-200, 200 P.3d 816 (2009). Thus, "the burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately charged." Soper, 45 Cal.4th at 773, 89 Cal.Rptr.3d at 201, 200 P.3d 816. In determining whether to grant a motion to sever joined offenses, the trial court should consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. Alcala v. Superior Court, 43 Cal.4th 1205, 1220-21, 78 Cal.Rptr.3d 272, 287, 185 P.3d 708 (2008).
Here, the California Court of Appeal found the March 2002 and July 2002 incidents were the same class of crimes against the person, and were properly joined under P.C. § 954, holding:
Lodgment no. 1 at 12-13. Further, the Court of Appeal found petitioner was not prejudiced by joinder of the March and July 2002 offenses, stating:
Lodgment no. 1 at 13-15 (emphasis added).
For the reasons stated by the California Court of Appeal, defense counsel was not deficient in failing to make a motion to sever the July and March 2002 incidents since it is highly unlikely that a motion for severance would have been granted, see Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir.1996) ("[T]he failure to take a futile action can never be deficient performance."),
The petitioner also claims defense counsel was ineffective for "fail[ing] to . . . object[] to the introduction of an uncharged violent act on the irrelevance and prejudice of the act to the charge of attempted murder." Petition at 5. Once again, there is no merit to this claim, as the California Court of Appeal found.
California Evidence Code § 1101(b)
Here, petitioner's uncharged conduct with Garcia in February 2002 was very similar to the charged offenses in July 2002, and such conduct showed petitioner did not act in self-defense, as he claimed, but instead petitioner had the intent to shoot and harm McCoubrey. As the California Court of Appeal found:
Lodgment no. 1 at 16.
Since any objection to evidence of the Garcia incident would have been overruled, Ewoldt, 7 Cal.4th at 402, 27 Cal.Rptr.2d at 659, 867 P.2d 757, defense counsel was not deficient for failing to object to this evidence. Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir.2009), cert. denied, ____ U.S. ____, 130 S.Ct. 1154, ____ L.Ed.2d ____ (2010); Rupe, 93 F.3d at 1444-45. Thus, defense counsel was not ineffective, and the California Supreme Court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) adopting the Report and Recommendation as the findings of fact and conclusions of law herein; and (3) directing that Judgment be entered denying the second amended petition and dismissing the action with prejudice.
Cal. Evid. C. § 1101(b).
