Barajas v. Baughman

JOSE BARAJAS, JR., Petitioner, v. DAVID BAUGHMAN, Acting Warden, California State Prison, Sacramento, Respondent.

No. 1:13-cv-02000-DAD-SKO HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 13, 2016

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

Petitioner Jose Barajas, Jr., is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges seven grounds for habeas relief: (1) the prosecutor's Doyle¹ error violated due process; (2) denial of the new trial motion violated due process; (3) the erroneous imminent peril jury instruction misstated applicable law; (4) insufficient evidence of murder violated his due process; (5) victim restitution should be designated to be a joint and several liability; (6) cumulative error; and (7) ineffective assistance of counsel. Having reviewed the record as a whole and applicable law, the undersigned recommends that the Court deny the habeas petition.

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I. Factual Background²

A. In General

The incident giving rise to Petitioner's conviction occurred on August 18, 2007, when two groups of men encountered each other in a liquor store parking lot in which taco trucks were gathered. After purchasing food at a white taco truck, Petitioner and codefendants Nicholas Castenada and Steven Anthony Pack encountered another group (the "soccer group"³) , which was on its way home from an evening spent partying and dancing. Petitioner and the co-defendants addressed the soccer group with various insults including the term "scrap," a derogatory reference to members of the Sureño street gang. When a verbal argument ensued, Castenada pulled a gun from his waistband, and a member of the soccer group attempted to calm things down, characterizing the group members as "paisas" and explaining that they did not "bang."

The soccer group withdrew toward the black taco truck, and Petitioner, Castenada, and Pack got into a white Honda Civic. Castenada backed the Civic slowly past the group at the black truck. Pack, standing in the open front passenger door, stated, "We got you"; and Petitioner fired a 22-caliber revolver through the window of the back seat into the soccer group. Shot in the head, Kevin Argueta fell to the ground, having incurred a fatal wound.⁴

The Civic sped away. Garcia and Lopez gave chase in Garcia's green Honda. When the green Honda came within 37 feet of the white Civic, Petitioner opened fire. Garcia took evasive action and ultimately returned to the taco trucks.

On August 22, 2007, Pack was arrested pursuant to a warrant. Petitioner turned himself in after hearing a news report naming him as a suspect. Castaneda was arrested August 29, 2007.

The white Honda Civic, which belonged to Castenada, was located in a garage with its tires and wheels removed. Police found a live .22 caliber cartridge under the front passenger floor mat and a spent .22 caliber shell casing under the front passenger seat.

B. Gang Expert Testimony

Detective Francisco Soria testified as a gang expert. Previous testimony indicated that Castenada had claimed to be a Norteño gang member at the age of fourteen. Soria explained his reasons for concluding that all three co-defendants were Norteños. He opined that the shooting was intended to benefit the Norteños by punishing the victims for not backing down when confronted. Nothing indicated that Argueta or any member of the soccer group was a member or associate of a gang.

C. Defense Testimony

Each of the defendants denied belonging to a gang. According to the defendants, they had been watching football before going to the taco truck to get something to eat. When they arrived, Pack recognized two individuals in the other group (Daniel and Miguel Oseguera), whose father had been involved in an auto accident with a member of the Barajas family. He called out, "When are you going to pay my boy his money?" but no one answered him.

At trial, the defendants testified that the soccer group had been the aggressors. They said that after the defendants bought their food and headed for the car, the Oseguera brothers and Amezcua approached them and began yelling. The other five members of the soccer group approached from another direction to surround the defendants. Castenada testified that when he realized that the other group was acting aggressively, he pulled out his .22 caliber revolver and told them to get back. Defendants then got into their car and began to drive away. Petitionerfired two shots. He testified that he fired the first shot into the ground to prove that the gun was real, and then, after someone made a move "like he was going to lift his shirt up" to get a weapon, Petitioner fired the second shot, which struck Argueta.

D. Videotape of Incident

The incident was captured by a security camera in front of Corona Liquors. When shown the video tape at trial, various witnesses identified themselves and others, and explained the events depicted in the videotape. Petitioner and the co-defendants were already at the white taco truck, opposite Corona Liquors, when Miguel and Daniel Oseguera and Julio Amezcua arrived at 12:33:38⁵ and parked just south of the white taco truck, across from the black taco truck parked to the south of Corona Liquors. At 12:34:49, Pack stepped away from the white truck and turned to look toward the black truck or Castenada's car, which was parked several spaces south of the black truck. Defendants left the white truck and began walking toward the black truck or Castenada's car at 12:35:44, at which time Amezcua and the Oseguera brothers stood in front of the black truck, waiting to place their order. At 12:35:50, Garcia's green Honda, carrying the other members of the soccer group, arrived from the north, drove past both taco trucks and parked in a space to the south of the black truck.

The prosecutor pinpointed 12:36:24 as the start of the argument. By that time, the defendants were in front of the black truck, and the Osegueras and Amezcua had stepped away from the truck toward them. By 12:36:45, other people in the vicinity showed awareness of the argument.

At 12:37:50, the back-up lights on Castenada's car appeared as it backed out of its parking space to a point roughly even with the soccer group, which was located near a white van parked immediately to the south of the black truck. The first shot was fired at 12:38:00, as evidenced bya bystander dropping down to shelter behind his pick-up truck, which was parked in front of Corona Liquors. By 12:38:08, the bystander stood up, and others were fleeing the scene. Cars were able to travel the aisle between the taco trucks toward exits at the north and south of the parking lot. At 12:38:17, the bystander again dropped behind his pick-up truck as one or more additional shots were fired. (Although not visible on the video, at this point, Argueta was struck by a shot and fell dead behind the white van.) Sheriff's Deputies Andrew Lawder and Cory Brown arrived at the scene at 12:42:13.

II. Procedural History

Petitioner, Castenada, and Pack were charged with one count of murder (Cal. Penal Code § 187), nine counts of attempted murder (Cal. Penal Code §§ 187 and 664), two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), one count of discharge of a firearm (Cal. Penal Code § 246), participation in a street gang (Cal. Penal Code § 186.22(a)), and various enhancements. Pack moved to set aside the information pursuant to California Penal Code § 995. Following a hearing in January and February 2009, the trial court found insufficient evidence (1) that defendants were aiding, abetting, or participating in a criminal street gang; (2) that the charged incident was gang related; and (3) that the predicate acts were sufficient to support a reasonable suspicion of active gang participation. With regard to Petitioner, the trial court dismissed count 14 which charged participation in a criminal street gang.

On April 10, 2009, Respondent filed a petition for writ of mandate. On May 28, 2009, the Court of Appeal issued the writ of mandate and directed the Superior Court to deny Pack's § 995 motions. People v. Superior Court of Stanislaus County (Steven Anthony Pack), 2009 WL 1497468 at 2 (Cal. Ct. App. May 28, 2009) (No. F057347).

During a total of 31 days in January and February 2010, Petitioner and the two co-defendants were tried jointly before a jury. Each defendant had his own counsel. At trial,Petitioner, who had remained silent following his arrest, stated for the first time that he had shot from the white Civic into the soccer group at the taco truck.

On February 4, 2010, the jury found all three defendants guilty of second-degree murder, two counts of assault with a firearm, and negligent discharge of a firearm. Only Castenada was found guilty of active participation in a street gang. The jury found the defendants not guilty of two of the attempted murder counts, the count of intentionally shooting at an occupied vehicle, the gang enhancement appended to the murder charges, and gang participation. The jury deadlocked on the other gang enhancements and seven of the attempted murder counts. The trial court declared a mistrial on the attempted murder counts and struck the enhancements on which the jury did not reach a verdict.

On September 17, 2010, the trial court denied Petitioner's and Pack's motions for a new trial. The Superior Court sentenced Petitioner to a term of 40 years to life in prison.

Petitioner appealed the convictions to the State Court of Appeals, Fifth Appellate District, which affirmed the convictions in all regards on May 31, 2012. The California Supreme Court summarily denied the appeal on September 12, 2012.

On December 6, 2013, Petitioner filed a petition for writ of habeas corpus in this Court. After Respondent filed his answer, Petitioner moved for an order of stay and abeyance to permit him to exhaust claim...