Dominguez v. Trimble

JOHN CHARLES DOMINGUEZ, Petitioner,

v.R. H. TRIMBLE, Warden, Respondent.

1:11-CV-01491 GSA HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: May 21, 2012

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ORDER DIRECTING CLERK OF COURT TO

ENTER JUDGMENT AND CLOSE CASE

ORDER DECLINING ISSUANCE OF

CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have voluntarily consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Stanislaus, following his conviction by jury trial on April 9, 2008, of murder in the second degree (Cal. Penal Code § 187). (See Petition at 2.) The jury also determined that Petitioner had personally used a deadly weapon during commission of the offense. (See Answer, Ex. 1.) Petitioner was sentenced to serve an indeterminate term of 16 years to life in state prison. (Id.)

Petitioner filed a timely notice of appeal. On August 24, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Answer, Ex. 1.) Petitioner filed a petition for rehearing, but rehearing was denied on September 17, 2010. (See Answer, Ex. 2.) Petitioner then filed a petition for review in theCalifornia Supreme Court. (See Answer, Ex. 3.) The petition was summarily denied on December 15, 2010. (See Answer, Ex. 3.)

On July 8, 2011, Petitioner filed the instant federal habeas petition. He presents the following claims for relief: 1) He claims the trial court abused its discretion by excluding gang membership evidence in violation of his constitutional rights; 2) He contends the trial court's denial of his motion for new trial violated his right to effective, conflict-free assistance; 3) He claims his trial counsel rendered ineffective assistance by failing to object to prosecutorial misconduct during summation; and 4) He asserts the appellate court misstated or omitted material facts and legal issues in its opinion denying Petitioner's direct appeal. On February 17, 2012, Respondent filed an answer to the petition. Petitioner did not file a traverse.

STATEMENT OF FACTS¹

Prosecution Evidence

As of February 16, 2006, Dolores Garza resided in the 1800 block of Donald Street, Modesto, with appellant, her boyfriend. The couple lived in a converted garage behind the house. Tony Trevino, who owned the property, lived in the main house, along with Antonia Ramirez (Garza's sister), Veronica Ramirez (Garza's niece), Diana Ramirez (Garza's other niece), and Veronica's and Diana's children. Sonya Bullard and Jennifer Westman lived in the back room of the main house.^FN2 That room could only be accessed from the outside.

FN2. For the sake of clarity, we refer to some of the Donald Street residents by their first names. No disrespect is intended.

On the night of February 16, 2006, Christopher Herd, the father of Diana Ramirez's baby, was at a residence on Marselle, about three blocks from the Donald Street house. He was talking to Nick Bargas, who lived there, when he came in contact with Bargas's cousin, Richard Chavez. With Chavez was Nehemiah Rodriguez. Chavez and Rodriguez were looking to trade property, including a bicycle, for methamphetamine. Bargas said he did not have any. Also joining in the conversation was Robert Sanchez, the father of Veronica Ramirez's baby, who was driving a white Ford Explorer.

After about 10 minutes, Rodriguez and Chavez left and eventually headed to the residence on Donald Street. They went there to get high, and to get a ride from Sonya, whom Chavez knew. Witnesses' accounts differed with respect to what happened after Chavez and Rodriguez arrived at the Donald Street house.

According to Garza, someone knocked on the door between 11:00 p.m. and midnight. When she answered, two men she had never seen before asked if Tony orSonya was home.^FN3 One was wearing a red shirt and red cap. Garza responded that Tony was in his room, but Sonya was at work. The men asked if they could go in Tony's room. Garza invited them in and walked them to Tony's room. As she was doing so, one of the men said something disrespectful. The other said to ignore him, that he had been drinking. Garza did not get upset, but took them to Tony's room, told Tony they were there, and then returned to the kitchen. The men shut the door to Tony's room.

FN3. Although Garza did not identify either man, there was no dispute that they were Chavez and Rodriguez.

Chavez and Rodriguez remained in Tony's room for 15 to 20 minutes, then Garza's niece said they were selling some jewelry or something. Garza responded that she was not interested, then called appellant from the back kitchen door and told him the food she had been making was ready. As appellant came in, Chavez and Rodriguez were walking from the back room into the kitchen. They asked if appellant was interested in buying some tools that one of them had in a backpack, but he told them no.

Appellant walked out, and Garza waited for Chavez and Rodriguez to walk out behind him. She and appellant were going to their room. Rodriguez and Chavez went to Sonya's door. From inside their room, appellant and Garza could hear them loudly knocking and calling her name. Appellant and Garza both went out, and appellant told them that Sonya was not home, but they could come back tomorrow if they wanted to talk to her. He told them not to be loud, because the children were asleep in the house. Appellant then went back into his room, but Chavez and Rodriguez continued loudly to knock and call to Sonya. Appellant told them to leave and come back the next day, and they could talk to her then. He told them to leave the property and not be disrespectful.

The men started to walk away, but, as they passed in front of appellant, one of them started getting mad and cussing. Appellant told him to leave the property, that he did not want any problems, and just to come back tomorrow.

Chavez and Rodriguez crossed the street and started yelling things. One of them said something like, "'Well, get the gun out, get the gun out.'" Garza did not see anyone get a gun, nor did she adjust her positioning or go inside the house after the statement was made. She was yelling at them to leave, because there were babies in the house. Appellant was telling them that he did not want any problems with them, and just to leave. Chavez and Rodriguez began throwing sticks and rocks toward appellant and Garza. Appellant picked up a rock and threw it back. Garza told him to let them go. The objects were not hitting anyone. At some point during this time, Chavez and Rodriguez said they were going to come back with their uncles and the Mexican Mafia, and they were going to get some guns and come back and shoot at the house. They said this twice, to Garza's recollection. She was scared.

After this had gone on for three to five minutes, Herd and Sanchez arrived in Sanchez's white Ford Explorer SUV. After Garza explained what was going on, Sanchez opened the back of his truck, and Herd got something that looked like a stick or a baseball bat. He and Sanchez stood next to appellant. Chavez and Rodriguez were yelling and making threats, and words were exchanged between the two groups. Chavez and Rodriguez then took off running. All Garza could see in their hands were the tools they had been trying to sell, but after the incident, a crossbow was missing from the kitchen counter near the back door.

Herd, Sanchez, and appellant, who had nothing in their hands, ran after Chavez and Rodriguez. The three then came back and got in Sanchez's truck. Sanchez was driving. Garza then lost sight of them. She did not see Rodriguez or Chavez again thatnight. Herd, Sanchez, and appellant all returned in the truck, however. Appellant went to his room, Herd stayed in the driveway and used his cell phone to call for a ride, and Sanchez went in the house for a couple minutes to talk to Veronica and then left. No more than about eight minutes elapsed from the time Garza lost sight of them to their return.

Appellant had a cut on his shoulder and on his head, and Garza asked if they had gotten into a fight with the other two men. Appellant said he hit one of the men on his back. He mentioned self-defense. He finished eating, then he and Garza went to bed. They were awakened the next morning by a police officer kicking the door open. After they had been handcuffed and were being walked to the front, appellant told Garza to say his name was Sam.

According to Rodriguez's version of events, he and Chavez knocked on the door, went inside, and were approached by some women. Chavez asked if Sonya was there. When they said no, he asked for someone named Mike. The women said he was in the room, and to go talk to him.^FN4 When the two men entered the house, there was a baby on the couch. Chavez said to the mother, "'It's a cute baby. She don't get her looks from you, though.'" The lady got mad, but then calmed down when Rodriguez said it was just a joke.

FN4. According to Diana Ramirez, the only "Mike" living at the house was her five-month-old son.

Rodriguez and Chavez went into Mike's bedroom, and the three of them smoked some methamphetamine. After about 15 minutes, Chavez and Rodriguez left the room. They might have tried to sell some costume jewelry and some tools. Someone said Sonya might be out back, so they went through the house and out the door that led to the back, where there were small living quarters.

Chavez had barely knocked on the door when appellant came out of another structure and said Sonya was not there. When Chavez knocked again, appellant started getting loud, cursing and saying she was not home and to get the hell out of there. Chavez and Rodriguez cursed back. At first, Chavez said a

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