Canon v. Holland, 2:11-cv-00524-JKS

JUSTIN DALE CANON, Petitioner, v. KIM HOLLAND,¹ Warden (A) California Correctional Institution, Respondent.

No. 2:11-cv-00524-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: October 3, 2012

MEMORANDUM DECISION

Justin Dale Canon, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Canon is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Salinas Valley State Prison. Respondent has answered, and Canon has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

A San Joaquin Valley Superior Court jury found Canon guilty of carjacking (Cal. Penal Code § 215(a)), felon in possession of a firearm (Cal. Penal Code § 12021(a)), street terrorism (Cal. Penal Code § 186.22(a)), and found that Canon personally used a firearm (Cal. Penal Code § 12022.53(b)) and committed the offenses for the benefit of and at the direction of a gang (Cal. Penal Code § 186.22(b)(1)). In July 2008 the trial court, after finding that Canon was previously convicted of a serious felony (Cal. Penal Code §§ 1170.12(b) and 667(d)), sentenced Canon to aprison term of forty-two years and eight months to life. On August 31, 2009, the California Court of Appeal, Third Appellate District, affirmed Canon's conviction and sentence in an unpublished decision,² and the California Supreme Court denied review on December 17, 2009.

Canon filed habeas petitions in the San Joaquin County Superior Court on June 13, 2008, October 31, 2008, and March 6, 2009. The San Joaquin County Superior Court denied Canon's June 13 petition in a reasoned decision on July 28, 2008; denied his October 31 petition without prejudice citing People v. Duvall, 886 P.2d 1252 (Cal. 1995), on January 12, 2009; and denied his March 6 petition citing In re Bower, 700 P.2d 1269 (Cal. 1985), People v. Jackson, 618 P.2d 149 (Cal. 1980), and In re Clark, 855 P.2d 729 (Cal. 1993), on August 10, 2009. On October 2, 2009, Canon filed a habeas petition in the California Supreme Court, which was summarily denied without opinion or citation to authority on May 20, 2010. Canon timely filed his Petition for relief in this Court on February 22, 2011.

The factual basis for Canon's conviction was summarized by the California Court of Appeal:

The Incident

On the evening of August 26, 2006, Romeo Laminero left a coworker's birthday party, accompanied by Karengee Pangilinan and Marissa Ruvalcaba and driving his black Honda Accord. When Laminero stopped at a red light, another car bumped his Honda from behind. As Laminero was getting out of his car, he saw Eliceo Nunez coming toward him with a gun. Laminero got back in the Honda and drove toward the freeway.

As they drove away, Laminero, Pangilinan, and Ruvalcaba heard gunshots. The Honda was bumped again on the passenger side rear door. The vehicle hit the center median and got stuck.

[Canon], the driver of the other car, a red Dodge Neon, positioned his vehicle to prevent the Honda from moving. Nunez got out of the Neon and approached Laminero with a gun. Nunez put the gun to Laminero's head and demanded the car.

Laminero saw a woman exit the Neon while [Canon] remained in the driver's seat. Laminero hesitated, and Nunez shoved the gun into his stomach and again demanded the car.

Nunez also pointed the gun at Pangilinan and told her to get out of the car. Pangilinan believed she saw a gun in [Canon's] hand, but she "wasn't too sure." She saw something in the driver's hand but was not sure what it was.

After Laminero, Pangilinan, and Ruvalcaba got out of the car, Nunez got in the Accord and drove away. Laminero ran down the street, chasing after his car on foot.

Officer John Black arrived at the scene and interviewed Laminero, Pangilinan, and Ruvalcaba. The officer broadcast descriptions of the suspects and both vehicles.

The Following Day

On August 27, 2006, Officer Michael Sabino observed [Canon] driving a red car that matched the description broadcast by Officer Black. Officers attempted to stop the car, but [Canon] drove away, leading them on a high-speed chase.

As he drove, [Canon] threw a TEC-9 firearm, a black backpack, and several bullets from the car. Officers ceased their pursuit when [Canon] almost collided with another vehicle. After officers set up a perimeter, they discovered [Canon] hiding in a trash can.

Officers found the red car had black paint transfer and body damage. A loaded .22-caliber pistol lay on the passenger seat.

Subsequent Events

The next day, August 28, 2006, Detective Craig Smith located Laminero's Honda a mile or two from where the incident occurred. The Honda had been stripped of some parts, and officers noticed red paint transfer on the side of the car.

Detective Smith interviewed Laminero 11 days after the carjacking. From photo lineups, Laminero identified [Canon] as the driver of the car and Nunez as the person who aimed a gun at him. Laminero identified the TEC-9 firearm thrown from the red car on August 27 as the weapon Nunez pointed at him during the carjacking.

Nunez's girlfriend, Krystal Ellis, knew both [Canon] and his girlfriend, Wendy Milazzo. Milazzo owned a red car, and the day before the carjacking [Canon] and Nunez drove away in it. The red car [Canon] abandoned was similar to Milazzo's car. Although Ellis could not recall if she had seen [Canon] with a pistol, she had seen Nunez with a .22-caliber pistol. Ellis also knew [Canon] and Nunez were members of the Sureño gang.

In an interview with Detective Smith, Ellis stated that on the night of the carjacking she saw Nunez in a dark-colored car at her apartment complex. Ellis also stated in the interview that she had previously seen [Canon] with the two weapons found at the time of his arrest.

Prosecution Case

A jury trial followed. Laminero, Pangilinan, and Ruvalcaba testified regarding the events surrounding the carjacking.

Detective Jim Ridenour testified as an expert on Hispanic gangs. Ridenour, a peace officer for 12 years, had spent five years as a member of the Stockton Police Department's gang unit. He also received training in the area of criminal street gangs. Ridenour personally investigated gang-related incidents, interviewed gang members, and was familiar with gangs and their territories.

Ridenour testified the Sureños are an Hispanic gang with 500 to 600 members locally. There are different subsets of the Sureños, based on geographic location.

Both [Canon] and Nunez had ties to the Bay Area and tattoos of the number 19. Ridenour contacted the San Francisco Police Department and confirmed the existence of the 19th Street Mission District Sureños, a subset of the Sureños.

According to Ridenour, being in a subset of the Sureños did not diminish an individual's status as a Sureño. The primary activities of the Sureños included homicides, attempted homicides, carjackings, burglaries, possession of firearms, vandalism, and drug sales. Ridenour's expertise on the Sureño gang was based, in part, on reading reports and talking to fellow officers.

[Canon] had admitted to being a Sureño during a previous arrest. Finally, Ridenour opined that the carjacking was a gang-related activity.

Defense Case

[Canon] testified in his own behalf. [Canon] met Laminero early in August of 2006 and saw him numerous times prior to the incident. Laminero and [Canon] took drugs together, and Laminero instructed [Canon] on how to commit fraud.

[Canon] provided Laminero with a connection to someone who would strip his car so he could collect the insurance. In exchange, Laminero gave [Canon] the two guns recovered when [Canon] was arrested.

At the time of the carjacking, [Canon] was asleep at his girlfriend's house. When he awoke the day after the carjacking, [Canon] went out to steal mail with his girlfriend. The two quarreled and she left.

[Canon] fled from police in the red car because he was in possession of firearms and on parole. [Canon] had the weapons because he was in an area claimed by the Norteño gang and he needed protection. He knew nothing of the carjacking and pled guilty right away to a charge of possession of a firearm by a convicted felon.

On cross-examination, [Canon] admitted he and Nunez were members of San Francisco's 19th Street Sureños. [Canon] testified he was not a Sureño when outside of San Francisco. He disputed the gang expert's description of some of his tattoos as gang tattoos.

[Canon] testified that during his incarceration he was attacked by another inmate in the holding cell and was forced to defend himself. According to [Canon], Nunez was not there. [Canon] wrote "SF 19" on the wall in the other inmate's blood because the other inmate "got blood on [him]."

Codefendant Nunez also testified. He admitted being a member of the 19th Street Sureños and had been for 15 years. He and [Canon] became members of thegang as children in San Francisco. Nunez denied participating in the carjacking. He testified he and [Canon] were involved in an assault on a Norteño inmate in the holding cell because Norteños were a rival gang.³

II. GROUNDS RAISED/DEFENSES

Canon raises eight grounds in his Petition: (1) the trial court erred in admitting evidence of Canon's possession of a firearm; (2) the evidence was insufficient to support the conviction for carjacking; (3) the evidence was insufficient to support the conviction for street terrorism; (4) the denial of his constitutional right of confrontation; (5) the trail court failed to sua sponte instruct the jury on the street terrorism charge; (6) a Doyle violation;⁴ (7) cumulative error; and (8) the denial of effective assistance of counsel. Respondent contends that Canon's eighth ground is unexhausted and procedurally barred. Respondent asserts no other affirmative defenses.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable...