Fuller v. Muniz

LAZARIS FULLER, Petitioner, v. W. L. MUNIZ, Respondent.

Case No. 18-cv-06379-PJH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

May 14, 2019

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY

This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and lodged exhibits with the court. For the reasons set out below, the petition is denied.

BACKGROUND

On August 18, 2014, a Contra Costa jury found petitioner guilty of kidnapping for sexual purpose (Cal. Penal Code § 209(b)(1)) and assault with intent to commit rape (Cal. Penal Code § 220(a))). Answer at 1. On October 10, 2014, in a bifurcated court trial of petitioner's prior offenses, the trial court found that petitioner had three prior convictions that were strike offenses and three prior serious felony convictions supporting an enhanced sentence. Id. He was sentenced to an aggregate term of 40 years to life in prison. Id. On March 27, 2017, the California Court of Appeal affirmed the judgment. People v. Fuller, No. A143419, 2017 WL 1131822 (Cal. Ct. App. 2017). The California Supreme Court denied review on July 12, 2017. Answer, Ex. 9.

The following summary of the evidence presented at trial is taken directly from the opinion of the court of appeal affirming petitioner's judgment and conviction.¹

A. Prosecution Case

On June 4, 2013, at around 5:00 a.m., Doe 1 was working as a prostitute in Richmond. [FN 3] A client had just bought her some food at the drive-thru window of a McDonald's restaurant. Doe 1 crossed the street, at the intersection of 23rd Street and Nevin Avenue. A short time later, she walked back to the McDonald's, hoping to use the restroom when the dine-in section of the restaurant opened. She stopped to check her makeup in the side mirror of a black truck, which was parked in the rear McDonald's lot. Doe 1 weighed 200 pounds and was five foot three inches tall. She was wearing a white dress and jacket, with pantyhose and sandals, but no underwear.

FN 3: Doe 1 admitted two convictions, in 2007 and 2011, for felony theft. At the time of trial, she also had forgery charges pending against her.

Fuller approached Doe 1 from behind and asked to speak with her. She "told him no." She had seen Fuller "on the streets" about a month or several weeks before, when he had walked with her to the apartment complex where she lived. [FN 4] After Doe 1 refused Fuller's second request to talk to her, Fuller grabbed her by the hood of her jacket. Doe 1 grabbed onto the truck's side mirror and yelled and kicked, but Fuller successfully dragged her by the hood of her jacket across the parking lot, up to the restaurant's rear brick wall. She estimated the distance at about 35 feet. As Doe 1 was dragged toward the restaurant, the zipper on her jacket caught and cut her neck. Once Fuller stopped dragging her, Doe 1 was laying on the tiled sidewalk area between a recessed portion of the restaurant's rear wall and a garbage can. Fuller kicked and stomped on Doe 1 and then ripped her pantyhose completely off, by tearing them from her legs. Her sandals came off. Although Fuller never touched Doe 1's genitals or breasts, Fuller told her several times he was "going to get some whether [she] like[d] it or not."

FN 4: Doe 1 said they talked for 20-30 minutes, but did not use drugs, discuss prostitution, or make any arrangement to exchange drugs for sex.

When a police officer arrived, Fuller ran, with the officer in pursuit. A second police officer and an ambulance arrived about five minutes later. Doe 1 suffered a cut on her neck, as well as abrasions to her neck and knee. Against the advice of the paramedics, she refused to go to a hospital.

1. Police Investigation

Around 5:08 a.m. on June 4, 2013, Richmond Police Department Officer Steve Harris was on patrol on 23rd Street, near the McDonald's, when he saw two uniformed employees of the restaurant waving and pointing toward the parking lot. He turned onto Nevin Avenue, but Harris was not able to see anything in the parking lot due to trees and parked cars along the street. As he drove into the McDonald's rear parking lot from Nevin Avenue, Harris heard a woman screaming. He could not initially see anything other than "two forms on the ground," but when he drove up to the area immediately behind the restaurant and his headlights illuminated the space, Harris saw a man kneeling above a woman, between her legs, to the left of a garbage can in a "darkened alcove." [FN 5] The man, later identified as Fuller, was "thrusting his hands into [the woman's] midsection." The woman's movement appeared to be restricted by Fuller's position above her torso, as well as her placement between the garbage can and the restaurant wall. Harris said the woman's legs were spread; her right leg was on the ground, but her left leg was in the air. Fuller was pulling something black from her. Initially, Harris thought it was blood, but it turned out to be Doe 1's pantyhose.

FN 5: On cross-examination, Harris eventually conceded the restaurant had lights directly above the area where he found Doe 1 and Fuller. However, he insisted the area was darker than the surrounding areas, including the area by the black truck.

When Harris stepped out of his car, someone nearby yelled, "police," and Fuller ran. Harris gave chase, and Fuller was eventually taken into custody. When Harris returned to the McDonald's, Doe 1 told him that a man, later identified as Fuller, approached her, at 23rd Street and Nevin, and asked for her services as a prostitute. She refused because she thought Fuller had no money. [FN 6] Fuller slapped her bottom and she walked across the street to the McDonald's parking lot, stopping at the black truck to look in the mirror. Fuller followed her, slapped her bottom again, and told her, several times that she was "going to give [him] some," regardless of whether she wanted to. Doe 1 reported Fuller began to punch and kick her in the head, back, legs, and buttocks, and then dragged her from the truck to the spot where he ripped off her pantyhose. Fuller said, "you're going to do something with me whether you want to or not."

FN 6: Doe 1 said she saw Fuller come out of a nearby crack house, but repeatedly told Harris she did not know Fuller. When she talked to a detective two weeks later, Doe 1 said her only prior contact with Fuller had been seeing him in the neighborhood.

Harris found black pantyhose, in six pieces, by the wall of the restaurant. By the black truck, Harris found an overturned soda cup, an uneaten hamburger, a headband, and a broken earring. Sixty-six feet was measured between the left, front corner of the truck and the spot where the ripped pantyhose was found.

2. Uncharged Offenses Against Jane Doe 2

Jane Doe 2, who also worked as a prostitute, testified at trial about an alleged assault Fuller committed against her 11 years before trial. [FN 7] On July 5, 2003, around dusk, Doe 2 met Fuller at an apartment building. He asked if she wanted to smoke crack cocaine. Doe 2 agreed to smoke crack with Fuller,but did not agree to provide any sexual favors in exchange. They went to a portable toilet in a park to smoke. After smoking for about an hour, Fuller wanted sexual favors from Doe 2, but she refused. Fuller said, "You smoked my shit and now I ain't getting nothing for it." Fuller tried to force Doe 2 to orally copulate him. When she would not, "[h]e got mad. He beat me up. And he did things to me." After he "put his hands on [her]," Doe 2 did not remember anything else, besides "waking up naked outside" and speaking to a police officer. [FN 8]

FN 7: Doe 2 admitted she had been convicted of driving a stolen car and previously gave false information to a police officer. At the time of Fuller's trial, she was on probation, with probation violation proceedings pending.

FN 8: She did not remember what she told the police officer. It was stipulated that Doe 2 refused to submit to a vaginal rape examination and that a urine sample collected from Doe 2 showed the presence of cocaine, cocaine metabolite, and marijuana.

On cross-examination, Doe 2 was asked if she remembered Fuller having intercourse with her. She responded, "I do not have know [sic] memory of him doing it, but I had—I mean, you could tell when something has happened to you after ...." She did not remember taking off her clothes, even when shown a police photograph of a shirt draped over a rail inside the portable toilet. Doe 2 admitted she spoke to Fuller's defense attorney, a few months prior to trial, and had lied to him. Doe 2 also testified previously, at a pretrial Evidence Code section 402 hearing. At that time, she testified she remembered being hurt by Fuller, but didn't remember much else, other than waking up in a hospital. In fact, she remembered more than she had stated previously. She lied because she was "frustrated," did not want to be in court, and "felt really small."

Doe 2's prior statements to Richmond Police Officer Jerred Tong were admitted under the spontaneous statement hearsay exception. (Evid. Code, § 1240.) Tong testified that, on July 6, 2003, at around 12:30 a.m., he was at Kennedy Park when he heard "some wrestling or struggling" coming from a portable toilet. Fuller ran out of the toilet, with his penis hanging out of his pants. Then Doe 2 fell out, wearing only underwear. She was crying hard, but was able to tell Tong she met Fuller at Bayview Market, around dusk, and walked to Kennedy Park and entered a portable toilet with him. [FN 9] Once inside, Fuller offered her crack cocaine. She refused and walked out. Fuller ran after her, knocked her to the ground, hit and kicked her, and told her, "You owe me money for the crack I bought you." Fuller dragged her back to the portable toilet, where he demanded oral sex "because [she] owed [him]

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