Hanson v. Neuschmid

ANTHONY ALEX LEE HANSON, Petitioner, v. ROBERT NEUSCHMID, Respondent.

Case No. 1:18-cv-01333-DAD-SAB-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

April 4, 2019

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.BACKGROUND

On January 31, 2014, Petitioner was convicted after a jury trial in the Tulare County Superior Court of: six counts of attempted murder, four of which were committed with premeditation and deliberation, and two counts of assault with a firearm. The jury also found true the special allegations that a principal personally and intentionally discharged a firearm causing great bodily injury and that the offenses were committed at the direction of, for the benefit of, or in association with a criminal street gang. (3 CT¹ 722-735). The trial court sentenced Petitioner to four terms of life with the possibility of parole, six terms of twenty-five years to life, and a total determinate term of eleven years and four months. (6 RT² 1158-59). On April 10, 2017, the California Court of Appeal, Fifth Appellate District ordered that the section 12022.7(b) enhancement attached to count 7 be stricken, the 12022.7(a) enhancements attached to counts 7 and 8 be stricken, and the abstract of judgment be corrected to reflect a sentence of two years and four months on count 6. The judgment was otherwise affirmed. People v. Esquer, No. F069292, 2017 WL 1315678, at *27 (Cal. Ct. App. Apr. 10, 2017). The California Supreme Court denied Petitioner's petition for review on July 19, 2017. (LDs³ 12, 13).

On September 27, 2018, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). In the petition, Petitioner raises the following claims for relief: (1) ineffective assistance of counsel; (2) the trial court's failure to properly instruct the jury on self-defense; (3) admission of hearsay evidence; (4) erroneous jury instruction regarding the California Penal Code section 12022.7 allegation attached to count 7; and (5) cumulative error. On December 31, 2018, Respondent filed an answer. (ECF No. 11).

On January 22, 2019, the Court issued an order relating the instant case with Esquer v. Sherman, No. 1:17-cv-01191-DAD-SAB, pursuant to Local Rule 123 as both cases involve similar parties, related questions of law and fact, and would likely entail substantial duplication of labor if heard by different judges.⁴ (ECF No. 15).

II.STATEMENT OF FACTS⁵

I. Prosecution's Case

A. Bystanders' Testimony⁶

Michael Gutierrez was a shift manager at the pretzel shop in the mall. On the evening of January 27, 2012, he saw four men walking together from the northern mall entrance. The tallest man in the group had a "red ... rag" hanging out of his jeans pocket, and Gutierrez perceived the men to be gang members based on their clothes and the way they expressed themselves. They stopped just past the pretzel shop and the tallest man, identified as Andy Nanez, gestured for two of them to go one way and two to go the other. Nanez and an unidentified man then went toward Macy's on the south side of the mall while the other two men, identified as Esquer and Hanson, went toward the candy store. Gutierrez subsequently heard multiple gunshots and called 911.

Gabrielle Stepp and Linden Grim were at the mall with two other friends and had just finished having dinner. They were having a conversation outside the candy store when they heard what sounded like a couple of firecrackers. Grim's back was to the candy store and when she turned around, she saw a man with a gun. One of their friends yelled, "Gun, run," and she ran. Stepp, who was facing the candy store, testified that the initial firecracker sounds were followed by approximately 10 more firecracker sounds. As she stood there frozen, she saw a young man, identified as Esquer, inside the candy store following a male clerk and firing a gun at him. Another man with a light complexion, identified as Hanson, stood by the shooter as bystanders ducked and ran. The two men then ran out of the store, eastbound. Stepp testified she did not identify anyone to police because she saw only the men's profiles, but she identified Hanson as looking like the man who stood next to the shooter.

Nicholas Myers was sitting on a bench waiting for his girlfriend. He was facing the candy store and a store called Hollister when his attention was caught by an apparent argument and he looked over. He heard some words being shouted in Spanish, the word "buster," and a store clerk saying, "You guys can't be doing this. Why are you guys doing this? This is a store. You guys can't be doing this." He saw a back and forth argument going on between two men outside the store and four larger men inside the store. He testified that both men outside the store were saying things, standing shoulder to shoulder, when one of them pulled out a gun from his waistband, pulled back on it, and opened fire. The two men then ran past Hollister toward the food court. Myers saw one man lying down bleeding and another one holding his leg.

He identified Hanson as the man standing next to the shooter, and he testified Hanson was "talking shit." He also testified that Esquer and Hanson did not go inside and the four men inside did not come out.

David Delgado-Martinez and his cousin had driven to In-N-Out Burger to get food. Delgado-Martinez, who was the passenger, observed two men together. The shorter of the two men threw a revolver under a bush and then returned to cover it up. After Delgado-Martinez got home, his wife called the police. When he returned to the parking lot with police, officers were in the process of retrieving the gun from the bush. He told the police sergeant who interviewed him that night that he heard the taller man say, "Hurry up, hurry up. Just leave it. Let's go."

B. Victims' Testimony

a. Sylvia A.

Sylvia A. was a sales clerk at the candy store. She testified that three large men came into the store to shop for candy.⁷ Three other men walked by the store and then came back.⁸ One of the men, Esquer, started calling to the group of men inside the store, like he wanted to fight.⁹ Sylvia told them they needed to take it outside and to leave. She testified Esquer never entered the store, but was right at the entrance. He started shooting at one of the men inside the store and then shot in an arc around the store. Sylvia ducked down. Two men in the store were hit, Miguel A. in the neck and Stephen H. in the leg.

Sylvia testified she did not hear or see anything prior to the shooter calling out to the men in the store, and she saw no weapons other than the shooter's gun.

b. Stephen H.

Stephen H. was shopping for candy while talking on his cell phone. He had not been in the store long when he heard one or two shots. He looked over and saw a man shoot toward the register and then toward a corner. The man then turned toward Stephen, looked at him and shot him in the leg. The bullet went through his right leg and hit his left.

Stephen testified he did not hear anything prior to the shooting, as he was focused on his phone conversation.

c. Miguel A.

The four men inside the candy store challenged by Esquer and Hanson were brothers Miguel A., Jose A. and Felipe A. and their friend Jose S. All four testified at trial reluctantly.

Miguel was shot in the neck, elbow and leg by Esquer. He testified he and his brothers were at the candy store on the evening of January 27, 2012, with Jose. S., but he remembered almost none of the events that occurred. He stated he went to the candy store and then woke up in the hospital. He also stated he did not remember speaking with detectives, but acknowledged he gave a true statement at the time of the shooting.

He acknowledged at trial that his brother, Felipe, has gang tattoos and he was not telling "the whole truth" when he told the officer his brothers were not in a gang. Miguel identified Esquer in court as the man he had identified as the shooter.

On cross-examination, Miguel testified he did not know two of his brothers had knives on them and he did not remember what was said. He testified the shooter was aiming at him from outside the front of the store, but no words were spoken. He also did not remember anyone saying "busters" and he denied ever using the word, although he acknowledged it is used to initiate a confrontation with "Northerners." Miguel denied knowing what "Loco Park" was and he denied claiming a gang, but he acknowledged he and his brother had been arrested for being involved with gangs.

In his statement to police, Miguel said he did not know the shooter or his companion and had not seen them at the mall prior to the shooting. He said they wanted to start a fight with his group, they probably thought he was a gang member and they were flashing a lot of red. Miguel also said the shooter had a red rag hanging from his back pocket and he shot at Miguel and another man with a .22-caliber handgun. He denied he and his brothers associated with gangs, and he said a year before, his house was shot at twice, which he attributed to Northerners.¹⁰

d. Jose A.

Jose A. testified he did not remember anything about the evening of January 27, 2012, including going to the mall. Regarding a photo taken from the mall surveillance footage that evening, he acknowledged he and his two brothers were pictured, but he stated he could not tell who was who and he denied recognizing the fourth man (Jose S.). He also denied he and his brothers were involved with any gangs, denied knowing what his brother Felipe's "S.S." tattoo stood for, and initially denied remembering his brother Miguel was shot in the neck. After viewing a photograph of Miguel's neck wound, he recalled the injury, but denied remembering any of the circumstances surrounding it. He testified he wears blue sometimes, the color blue is associated with "South" and red

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