Estrada v. Cate

JOEY MANUEL ESTRADA, Petitioner, v. MATTHEW CATE, Secretary, Respondent.

Civil No. 10-cv-2014-DMS(KSC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

FILED: January 29, 2014

January 28, 2014

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF HABEAS PETITION

Joey Manuel Estrada ("Estrada"), a state prisoner proceeding pro se and in forma pauperis, seeks 28 U.S.C. § 2254 habeas corpus relief from his September 2005 convictions by a jury of residential burglary, assaults with a firearm, and possession of a firearm by a felon, in San Diego County Superior Court Case No. SCS185128 . He admitted two prior strike convictions and is serving a prison term of 67 years to life. The California Court of Appeal affirmed the judgment, and the California Supreme Court summarily denied his petition for review. He unsuccessfully sought collateral relief in the state courts. Estrada filed his federal petition on September 27, 2010 and a First Amended Petition on January 2, 2013 ("FAP"). Respondent filed an Answer acknowledging Estrada's claims are exhausted but opposing any relief, and Estrada filed a Traverse. In consideration of the casefilings, review of the entire trial and post-trial record, prior proceedings in this Court, and controlling legal authority, it is recommended that the Petition be DENIED.

I. BACKGROUND

A. Factual Background

In its unpublished decision affirming the judgment, the California Court of Appeal summarized the facts of the two incidents joined for trial in Estrada's criminal case. (Lodg. No. 4 (Cal. Ct. App. Case No. D049579, Jun. 16, 2008), slip op.) On federal habeas review, state appellate courts' findings of historical fact, including inferences properly drawn from these facts, are entitled to a statutory presumption of correctness, rebuttable by the petitioner only upon a showing of error "by clear and convincing evidence." 28 U.S.C. §2254(e)(l); Parke v. Raley, 506 U.S. 20, 35-36 (1992); see also Moses v. Payne, 555 F.3d 742, 746, n.1 (9th Cir. 2009).

Estrada's convictions arose from two separate incidents. Counts 3 through 7 (the assault with a firearm and possession of a firearm convictions) arose from an incident on November 4, 2002. Count 1 (residential burglary) arose from an incident on May 29, 2004. Each incident is recounted separately below.

On the night of November 4, 2002, Juan Silva, Car[lo]s Anzar and Estrada were with Chrispina Sanchez in her home. Estrada began to argue with Sanchez about a stolen van that belonged to Sanchez's cousin. Estrada appeared to be getting "a little out of control," and Silva told Estrada to calm down. Estrada responded that Silva should "shut the fuck up." Estrada then pulled out a semiautomatic handgun and pointed it at Sanchez, Silva and Anzar. Estrada approached Silva, and hit him in the head repeatedly with the butt of the gun. Silva suffered a gash on his head that required medical attention.

In the early morning hours of May 29, 2004, Maria Oceguera heard a noise coming from the garage of her home. She opened the garage door and found Estrada standing inside. Maria called to her husband, Javier Oceguera, Sr. for assistance. Maria testified that Estrada grabbed her arm to prevent her from doing so. Javier appeared and, after a short conversation, asked Estrada to leave; Estrada complied. After Estrada left, Javier realized that a videocassette recorder was missing from the garage and a car in the garage had been damaged. In addition, the lock to the garage door had been pried open and damaged.

(Lodg. No. 4 at 2-3 (footnote omitted).)

B. Procedural Background In State Court

In a fourth amended information, Estrada was charged on April 6, 2005 with eight violations of the California Penal Code arising from the two incidents: (1) residential burglary (§§ 459, 460); (2) false imprisonment (§§ 236, 237(a)); (3) through (6), assault with a firearm or a semi-automaticfirearm (§ 245(b)); (7) possession of a firearm by a felon (§ 12021(a)(1)); and (8) assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245(a)(1)). (Lodg. No. 16, CT vol. 1, 0086-0093.) Enhancements were alleged as to counts three, four, and eight that Estrada personally inflicted great bodily injury on the victim (§ 12022.7); as to count three that he personally used a firearm (§ 12022.5(a)); and as to count eight that he personally used a deadly weapon (§ 1192.7(c)(2)). (Lodg. No. 16, CT vol. 1 at 86-89.) The information also alleged he had served three prior prison terms, had two prior serious felony convictions, and had two strike priors. (Id. at 89-92.)

Estrada's trial began April 6, 2005. The jury informed the court on April 20, 2005 that they were deadlocked, and the court declared a mistrial. (Lodg. No. 16, CT vol. 3 at 563.)

1. Estrada's Second Trial

Estrada's retrial began August 24, 2005. (Lodg. No. 16, CT vol. 3 at 569.) He had testified in his own behalf at his first trial, but he did not testify at his second trial. The jury nonetheless heard his version of the events associated with both the 2002 assault charges and the 2004 burglary charges as read into the record from the first trial transcript, primarily by the prosecution. Estrada does not challenge the sufficiency of the evidence to support his convictions. However, the federal habeas standards of review for certain of his FAP claims rejected by the state courts without a reasoned decision require that the Court examine the evidentiary record in some detail.

a. The Assault Case

The prosecution presented its case on the 2002 assault charges primarily through the percipient witnesses' and law enforcement officers' testimony. All three witness/victims testified at trial: Carlos Anzar (Lodg. No. 17, RT vol. 8 of 23 at 579-610, id., RT vol. 9 of 23 at 905-937), Chrispina Sanchez (id., RT vol. 9 of 23 at 752-825), and Juan Silva (id., RT vol. 9 of 23 at 854- 893).¹ Sanchez, in particular, provided testimony materially inconsistent with her statements at the time of the assault andwith portions of her testimony at the first trial. Both Anzar and Sanchez displayed considerable reluctance at having to appear against Estrada, and both referred to the consequences in their milieu of being a "rat" or a snitch and their fear of those consequences. Details of Sanchez's trial testimony is discussed in more detail in connection with Estrada's Ground Seven prosecutorial misconduct theory on his claim the prosecutor purportedly presented perjured testimony.

The law enforcement witnesses testified consistently at both of Estrada's trials, relying on their contemporaneous records from the incident. Responding officer Mark Chavez testified that Chrispina Sanchez appeared to be upset and fearful as she described Estrada's assault. She told the officer that he had pointed a gun at all of them (herself, Juan Silva, and Carlos Anzar) before striking Silva "in the head with the pistol end of the grip, approximately two to three times." She stated that she pleaded with Estrada to put the gun away and that he told her he didn't care if she called the police, then tucked his gun back into his waistband and quickly left. (RT vol. 9 of 23 at 826-841.)

Sanchez similarly told another testifying police officer that Estrada came to her house to talk about her cousin's stolen van, they argued about it, Silva tried to step in and break it up, then Estrada got really angry and pulled a gun, pointed it at all of them, started hitting Silva in the head, then put the gun back in his waistband and drove away. (RT vol. 9 of 23 at 894-904.) A third police officer testified that both Silva and Anzar gave him substantially similar accounts of the incident: that Estrada and Chrispina got into an argument, Silva tried to step in, Estrada got angry, then pulled out a handgun and pointed it at all three of them before hitting Silva in the head with it. (Id. at 938-946.)

At the second trial, Sanchez denied a gun was involved in the assault. She was impeached with her prior inconsistent statements. She attempted to evade, among other things, the memorialized statements she made to the 911 operator at the time of the assault, in particular her statements about Estrada having the gun and seeing him hit Silva in the head with it, even stating, when pressed, that she had "lied" in her original version of events. The prosecutor argued to the jury: "Were they telling the truth [the night it happened], or were they telling the truth when they came in here and lied to you? Those are what you have to decide." (RT vol. 16 of 23 at 2627.)

The defense theory of the assault case, as memorialized in Estrada's prior trial testimony, was that Silva had the gun and Estrada acted in self-defense. He testified that he had decided to go toSanchez's house in the early morning hours of November 4, 2002 because an acquaintance had called him about the location of her cousin's missing van, and he wanted to help her get it back. He described "an incident with Juan Silva and three other guys that were looking for me in a van" about a week before when they had gone to a friend's house and displayed a gun, and he "didn't want any more incidents happening for anyone."² (RT vol. 16 of 23 at 2515-2518.)

In his version of the assault incident, Estrada knocked on Chrispina's door. He was surprised to find Juan Silva there. Estrada told Chrispina they found the van and she could call her cousin. While they waited for her cousin to call back, Estrada felt Silva "got jealous" of Estrada "kind of talking close to Chrispina". Chrispina and Silva continued to get high on meth. (RT vol. 16 of 23 at 2519-2526; see also id. at 2538-2541.)

Q: Then -- did something happen?

A: Yes. As I was talking to [Silva], I was bringing up the situation about the van again . . .[¶] with Juan. I kind of told him, you know what is wrong with you? Why did you do that? And then he tells me -- he told me to shut the fuck up. . . . [¶] I turned around and told

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