Aguero v. Ducurat

HILARIO AGUERO, Petitioner, v. C.E. DUCURAT, Respondent.

No. 1:17-cv-00103-AWI-SKO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

July 27, 2018

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS AND DECLINE TO ISSUE CERTIFICATE OF APPEALABILITY

(Doc. 15)

Petitioner, Hilario Aguero, is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges four grounds for habeas relief: (1) the trial court erred by failing to sua sponte instruct on the "escape rule"; (2) insufficient evidence;¹ (3) jury instruction error; and ineffective assistance of counsel. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Having reviewed the record as a whole and applicable law, the undersigned recommends that the Court deny the habeas petition.

I. Factual and Procedural Background²

Petitioner and three co-defendants, Emmanuel Toscano ("Toscano"), Gabriel Gonzales ("Gonzales"), and Fernando Garcia-Santos ("Garcia-Santos") were charged and tried together before a jury for crimes that were committed over the course of two days, August 28, 2010 and April 30, 2011.³

Ramzee Johnson ("Johnson"), an African American man in his mid-thirties, lived with his family in a predominately Hispanic neighborhood in northeast Bakersfield, California. At approximately 3:00 a.m. on August 28, 2010, Johnson left his apartment to walk to the market.

Shortly after leaving his apartment, Johnson saw Petitioner and Francisco Castro ("Castro") standing about a block and a half away from him. When Petitioner and Castro started walking towards him, Johnson became nervous and turned around to walk back to his apartment.

Petitioner and Castro caught up to Johnson, stood in front of him, and asked him "gang questions" like "where are you from?" and "where you at?" Johnson replied that he was "not from anywhere" and stated he lived on the street where they were standing and that they were in front of his residence.

Castro pulled out a .25-caliber, semiautomatic firearm and Johnson heard a clicking sound, indicating the gun had been cocked. Believing he was about to be killed, Johnson grabbed for the gun. The gun fired as soon as he grabbed it, but the shot missed him. Johnson twisted the gun out of Castro's hand and fired back at Castro. Petitioner and Castro fell to the ground and then quickly got up and ran away. Johnson fired the gun in their direction several times until he heard a click and the gun appeared to be empty. Johnson called 911.

When police officers arrived, individuals in front of a nearby residence yelled at the officers that their friends were inside, shot and bleeding. Officers found Petitioner and Castro inside the residence, both with gunshot wounds.

Petitioner and Castro were transported to the hospital for treatment. When a police officer returned to the hospital two days later to transport Petitioner to jail for booking, the officer discovered that nursing staff had accidentally released him from custody. The police could not locate Petitioner prior to the events of April 30, 2011.

On April 30, 2011, Gerardo V. ("Gerardo") was fatally shot in a church parking lot in west Bakersfield, California. The parking lot was located next to a restaurant where Gerardo and some of his high school friends were attending a quinceañera.

At trial, the prosecutor argued that the shooting was an act of gang-related retaliation for a shooting that occurred six days earlier on April 24, 2011. On that day, the perpetrators shouted either "Westside" or "Southside" and shot at one of Petitioner's co-defendants, Toscano, and his brother, Jacob Toscano ("Jacob"). Jacob was injured.

Toscano told a deputy responding to the scene that he and his brother were walking home from a 7-Eleven when a car pulled up next to them. Several African American males exited the car and shot at Toscano and his brother. When the assailants shouted "Southside," Toscano responded by "gangbanging back at them" and yelling "Hillside."⁴

In the days after the April 24, 2011 shooting, Melina M. ("Melina"), a 16-year-old who knew Toscano overheard Toscano talking about Jacob being shot. Toscano appeared very angry and she heard him say "something about the Westside."

On the afternoon of April 30, 2011, Melina saw Toscano and invited him to attend her friend's quinceañera. Petitioner was standing with Toscano when Melina invited Toscano.Toscano, Petitioner, and the other co-defendants showed up at the restaurant where the quinceañera was being held, and Melina went out to meet the men.

Melina became upset with Toscano when he started leading the others in his group in "pretending" to be members of the Westside Bakers gang. Melina knew Toscano was actually an "Eastsider" and member of the rival Loma Bakers gang. Toscano and his friends were shouting "Westside" and directing Westside hand signals towards other men at the quinceañera, who were socializing around the restaurant and in an adjacent minimarket. Toscano warned Melina in front of the others not to tell anyone that his group was from "the East." He also showed her that he was armed by lifting his shirt and exposing the handle of a firearm tucked inside his waistband.

Melina asked Toscano to leave and went back inside the restaurant. From inside the restaurant, she saw Petitioner and his three co-defendants leave. The men crossed in front of the restaurant and then headed towards the church parking lot. The murder victim, Gerardo, and three of his friends were in the church parking lot waiting to get into a car. Petitioner and his co-defendants surrounded Gerardo and his friends.

Led by Toscano, the group asked Gerardo and his friends where they were from. Gerardo's friends responded that "we don't bang." Maintaining the pretense that they were West Side Bakers, Toscano and his group started making derogatory comments about Eastsiders and asked Gerardo's group where they could find some Eastsiders.

Eventually, both groups shook hands and Petitioner's group appeared to be preparing to leave. Gerardo and his friends got into their car, with Gerardo in the front passenger's seat. The front passenger-side door was still open, when Toscano said "Keep it Westside," to which Gerardo replied, "I'm Westside, too."

When Gerardo stated he was Westside, Gonzales went up to the car and asked Gerardo what he had said. Gerardo repeated that he was from the Westside too, Petitioner replied, "You're notfrom my hood," and challenged Gerardo to get out of the car and fight him.

Petitioner and his co-defendants were saying things to "pump up" Gonzales, including: "Just fight him. Just fight him." Gerardo's friends told him to just be quiet and started the car up to leave; however, they could not drive away without hitting someone in Petitioner's group, who had all surrounded the car.

While recollections differed as to the details of events, Gerardo's group all remembered seeing Gonzales reach into the car and grab Gerardo's cell phone from his hands or from his lap. As Gonzales grabbed the cell phone, someone heard him call Gerardo a "bitch" and say, "give me your fucking phone."

Gerardo begged Gonzales to return his phone. Gonzales responded by saying something to the effect that he would return Gerardo's phone, but first Gerardo would have to get out of the car and fight him. Petitioner's group continued to challenge Gerardo to get out of the car and fight with Gonzales.

Remaining inside the car, Gerardo continued imploring Gonzales to return his cell phone and repeating that he did not want to fight Gonzales. Gerardo also expressed some confusion, asking Gonzales why they were supposed to be fighting when they were from the "same hood."

Gonzales reached into the car again and grabbed Gerardo's hat from his head. Gerardo told Gonzales to keep the hat, but give him back his phone. Gerardo finally closed his door and said, "I'm going to call the big [homeys]."

Toscano walked back up to the car and opened Gerardo's door. Toscano then pulled out the gun and shot Gerardo. Petitioner and his group then ran away together towards a nearby alley, shouting something as they ran. Meanwhile, Gerardo got out of the car and started running towards the restaurant. Gerardo collapsed outside the restaurant and died shortly thereafter from the gunshot wound to his left shoulder.

The pathologist who performed the autopsy explained that Gerardo suffered extensive blood loss due to the laceration of vital organs, including a major vein in his heart and the upper lobes of both his lungs.

At trial, Kern County Sheriff's Deputy Richard Hudson ("Hudson") testified as a gang expert for the prosecution. Hudson opined that, at the time of their offenses, Petitioner and his co-defendants were all members of, and active participants in, the Loma Bakers criminal street gang.

Presented with hypotheticals based on the August 2010 and April 2011 incidents underlying the charged offenses, Hudson opined the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. With respect to the gang-benefit of the April 2011 offenses, Hudson opined that the scenario presented was an act of retaliation and explained:

When an individual is put in a situation where a gang is going to require retaliation, when they conduct that retaliation they're going to create status, fear within the neighborhood, because this incident will be talked about. It will be discussed. People will hear about it in schools. They'll hear about it in the neighborhood. It will get around.

So the information will get out to other gangs, as well as the neighborhood, that these individuals, when disrespected, will, in this case, kill you, and by doing that they're going to limit the amount that people will be willing testify; that other gang members will be willing to come to their neighborhood and disrespect them.

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