Arellano v. Harrington, No. CIV S-10-2684 DAD P

ERNESTO ARELLANO, Petitioner,

v.KELLY HARRINGTON, Warden, Respondent.

No. CIV S-10-2684 DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: September 17, 2012

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner challenges a judgment of conviction entered against him on July 28, 2006, in the Yolo County Superior Court on two counts of first degree murder and two counts of attempted murder. Petitioner raises nineteen separate claims for federal habeas relief. Upon careful consideration of the record and the applicable law, the court will deny petitioner's application for a writ of habeas corpus.

PROCEDURAL AND FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District providedthe following factual summary:¹

Defendants James Joseph Olague, Ernesto Duran Arellano, and Oscar Hurtado Cervantes appeal following their conviction for first-degree murder (Pen. Code, § 187; undesignated statutory references are to the Penal Code) of Robert Stepper and Eric Folsom, and attempted murder of Vicki Folsom and Jessica Valdez on Halloween 2002. Defendants raise a variety of contentions. We shall order modification of Cervantes's sentence to reduce to a one-third subordinate term a 10-year section 186.22 enhancement on Count 3. We shall otherwise affirm the judgments.²

FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 2003, an indictment was filed alleging that defendants and others - Christina Marie Marten, Nathaniel Easlon, Richard Betancourt, and (later added) Gilberto Lopez ³ - committed the following crimes:

Count 1: First-degree murder of Robert Stepper (§ 187, subd. (a)), with enhancements alleging the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)), Cervantes used a firearm which caused death or bodily injury (§ 12022.53, subds.(a), (d)), and a principal personally discharged a firearm causing death or bodily injury (§ 12022.53, subd. (a)). Count 2: First-degree murder of Eric Folsom, with enhancements as above. Count 3: Attempted murder of Vicki Folsom (§§ 187, subd. (a); 664, subd. (a)), with enhancements as above. Count 4: Attempted murder of Jessica Valdez, with enhancements as above.

The indictment also alleged special circumstances for multiple murder and intentional killings as participants in a criminal street gang (§ 190.2, subds. (a)(3), (a)(22). The prosecutor sought the death penalty against Arellano and Cervantes only, not against Olague.

At trial, the prosecution presented evidence supporting its theory that, although the Norteño and Sureño gangs were rivals, their members cooperated in committing these crimes because Arellano (a Norteño leader or "shot caller") and nonparty Candelario Garza (a Sureño leader) cooperated in the sale of drugs in Woodland. Arellano (a Norteño) ordered the hit because victim Stepper (a Norteño) owed him money for drugs, and Arellano wanted to send a message to others who owed money and re-instill fear in the community. Christina Marten (a Norteño) brought Stepper to the place of attack. The shooter was Cervantes, who was not a gang member but who associated with Norteños, Sureños, and Crips. Stepper was the target, and the other victims were shot either because they were in the "kill zone" or because Cervantes intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang member ⁴ ) acted as lookout. Arellano's neighbor, Gilberto Lopez (a Sureño), was the getaway driver. Olague (a Sureño) was on the street at the time of the shooting to ensure that all participants did what they were supposed to do.

Evidence adduced at trial included the following:

Easlon and Betancourt (Norteño) testified about a gathering at Arellano's apartment before Halloween 2002. Arellano asked Easlon and Betancourt to "fuck up" (beat up) Robert Stepper, who owed Arellano about $500 to $800 and was not doing what he was supposed to be doing to help the drug trade. Easlon (who owed Arellano $1,600 for drugs) and Betancourt refused to do the actual deed, because Stepper was their friend. Arellano asked Cervantes, who was also there, to "handle it." Cervantes agreed and was given some drugs.⁵ Easlon, to pay off his debt, agreed to Arellano's request to station himself at the end of the street on Halloween and "make sure nobody we know goes down that street . . . ." Lopez came to the door and was told by Arellano, "[i]t's going to go down," and Lopez was needed as the getaway driver. (Though Lopez had a "beef" with Cervantes, who impregnated Lopez's girlfriend, there was evidence that Lopez did not know Cervantes would be involved.) Arellano took a phone call, then said "Jaime" and Garza were on the way over with the gun and toldEaslon and Betancourt to leave.⁶ Easlon testified he knows three "Jaimes," one of which is Olague. Easlon did not stay and therefore did not know if it was Olague who showed up. However, Easlon testified it was Olague who showed up when the crime took place.

On Halloween, around 10:00 p.m., as planned, Easlon concealed himself at the end of Oak Avenue to stand watch. Marten walked Stepper down Oak Avenue and then left. Stepper began chatting with the other victims near a pickup truck in victim Valdez's driveway. Olague, whose job was to make sure others did their job, walked Cervantes partway down the street.

As related by the surviving victims, a man approached the victims, "kind of" grinned, pulled out a gun, aimed the gun at Stepper's head, and fired from a distance of two feet (killing Stepper). The shooter then pointed the gun at the others and fired multiple times (killing 17-year-old Eric Folsom and injuring 14-year-olds Vicki Folsom and Jessica Valdez). At trial, one of the survivors identified Cervantes as the shooter, though she had not identified him a photo lineup.

As Lopez drove the getaway car, Cervantes hit the dashboard and said, "I got 'em, I got 'em." Lopez had not expected any shooting. He later told Garza that Veronica Lugo (girlfriend of Guillermo Ramirez, who had been with Lopez) was in an alley and heard the gunshots. Lugo testified she was summoned to an apartment the next day where several people, including Cervantes and Olague, were present. Garza, Lopez, and Ramirez led her into a bedroom and told her to keep her mouth shut or she and her children would be killed.

An expert in criminal gangs, Sergeant Steven Gill, said rival gangs do work together in drug activity and will commit a crime such as murder together to further their criminal enterprise, enhance both gangs' reputations, and further instill fear and intimidation in the community and other gang members. A non-gang member's participation would be a way to be accepted by the gangs.

All three defendants testified at trial and denied any involvement. Arellano (age 34 at trial) said he was a Norteño for 10 years but was not a shot caller. He denied any pre-Halloween meeting, denied ordering or suggesting that anyone kill Stepper, and said he did not even know Cervantes or Olague before Halloween 2002, except for an incident where he almost got into a fight with Olague (whom he pegged as a Sureño). Arellano admitted that on one occasion he told Cervantes to "handle it" but testified he wastelling Cervantes to go get a pipe to smoke drugs. Stepper was Arellano's friend, did not buy drugs from him, and did not owe him money. On Halloween, Arellano was on his way home, saw Stepper, said hello, and noticed a car full of people wearing blue (a Sureño color). Arellano said his only prior crimes were spousal abuse, selling drugs, and participating in a prison riot in which he was just following gang orders, though he was in front of his cohorts.

Cervantes (age 28 at trial) testified he has never belonged to a gang, though he knew gang members. He knew Olague before Halloween, but not Arellano. When arrested, Cervantes said he "knew this day was coming," but he thought he was being arrested for violating probation. Cervantes denied telling his cellmate, Richard Bowie, about the case and denied tampering with his handcuffs (evidence of which was adduced as an escape attempt). Cervantes had a prior felony conviction for selling drugs and a drug-related misdemeanor. Alibi witnesses testified Cervantes was with them that night.

Olague (age 29 at trial) testified he was a gang member when he lived in Los Angeles (he equivocated on whether it was Sureño) and associated with "southerners" when he moved to Woodland. He was friendly with Cervantes. Olague did not know or have any contact with Arellano, except Olague ran from a brief confrontation with Arellano as a member of a rival gang in a parking lot about a month before the crimes. Olague denied any involvement in the crimes. He came upon the crime scene after a friend dropped him off and he was walking to a friend's house. Olague admitted two prior felony convictions, for auto theft and verbally threatening his ex-wife.

To advance the defense theory that the police pressured the accomplices to make false confessions consistent with the prosecution's theory, the defense hammered at inconsistencies in the accomplices' statements, and a defense expert testified about how police interrogations can elicit false confessions.

In May 2006, the jury returned verdicts finding all three defendants guilty on all counts and finding true all enhancement allegations.

In June 2006, the jury set the sentence for Arellano and Cervantes at life without the possibility of parole on the two counts of first degree murder.

The trial court denied defense motions for new trial.

On July 28, 2006, the trial court sentenced Arellano to prison for life without possibility of parole on Counts 1 and 2

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