Lopez v. Louis

ROBERT A. LOPEZ, Petitioner, v. G.D. LOUIS, Respondent.

Case No. 1:12-cv-01777 DAD MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 29, 2016

FINDINGS AND RECOMMENDATION REGARDING 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. Respondent is represented by David Eldridge of the office of the California Attorney General.

I. PROCEDURAL 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 July 16, 2007, of murder, assault with a deadly weapon, active participation in a criminal street gang, and various gang and firearm enhancements. (Clerk's Tr. at 647-650.) On September 29, 2009, Petitioner was sentenced to an indeterminate term of 40 years to life plus eight years in state prison. (Id.)

Petitioner's direct appeal was denied by the California Court of Appeal, Fifth Appellate District on June 28, 2011. (Answer, Ex. A.) Petitioner filed a petition for review with the California Supreme Court on July 21, 2011. (Lodged Doc. 17.) The petition was summarily denied on September 28, 2011. (Lodged Doc. 18.)

Petitioner proceeded to seek collateral relief from the state court. On February 28, 2012, Petitioner filed a petition for writ of habeas corpus with the Stanislaus County Superior Court on February 28, 2012. (ECF No. 16 at 3-79.) The petition was denied on March 16, 2012. (Answer, Ex. B.) Petitioner then filed a petition for writ of habeas corpus with the California Supreme Court on November 8, 2012. (ECF No. 16 at 81-159.) The petition was denied on January 16, 2013. (ECF No. 24 at 5.)

Petitioner filed his federal habeas petition on July 12, 2012. (Pet., ECF No. 1.) Respondent filed an answer to the petition on January 24, 2013, and a supplement to the answer on February 5, 2013. (Answer & Supp. Answer, ECF Nos. 17, 24.) Petitioner filed a traverse on March 25, 2013. (Traverse, ECF No. 27.)

Petitioner raised thirteen grounds for relief stating the following claims: 1) that the prosecution committed misconduct by presenting testimony at closing that was misleading or not based on evidence in the record; 2) that co-defendant's counsel made improper comments during his opening statement about the gun found in Petitioner's room being the murder weapon; 3) that the prosecution engaged in improper conduct by insinuating that a defense witness was lying; 4) that the trial court committed misconduct by refusing a jury request for a copy of a penal code provision; 5) that his due process was violated based on false accusations made by the prosecution; 6) that counsel was ineffective for failing to investigate or call witnesses; 7) the trial court erred in denying Petitioner's right to sever the trial from his co-defendant; 8) Petitioner was prejudiced by co-defendant's counsel's comment on Petitioner's decision not to testify; 9) Petitioner was denied his right to testify in his own defense; 10) the trial court erred in instructing the jury to view Petitioner's statements with caution; 11) the trial court violated his rights to confrontation in refusing Petitioner's request to cross-examine his co-defendant; 12)the trial court instruction that the state need not prove motive with regard to the street terrorism charge prejudiced Petitioner by lowering the burden of proof required; and 13) cumulative error. (Pet. at 7-21.)

II. STATEMENT OF THE FACTS¹

FACTUAL AND PROCEDURAL SUMMARY

Morales was shot to death at approximately 3:30 p.m. on April 6, 2004. He was 16 years old. Jesus Elizarraraz had known Morales for a year or two and they were close friends.

On April 6, Elizarraraz, Morales, and Villanueva headed to a Modesto shopping mall around noon to "hang out and shop." They did not have any alcohol, drugs, guns, billy clubs, or any other weapons with them. The three spent about an hour at the mall and then left and headed to a taco stand to get something to eat. It was about 3:00 p.m.

After they pulled into the parking lot of the taco stand, Elizarraraz noticed a car pull up to the red light at the corner; the driver gave Elizarraraz a "mean look." Elizarraraz identified Hernandez as the driver and said Hernandez yelled something, but there was too much traffic noise to make out the words.

The three friends got their food and sat down at an outside table to eat. About five minutes later they saw Hernandez's car, which was "full" of people, turn into the lot. The four occupants of the car got out and began walking toward Elizarraraz, Morales, and Villanueva. When the four men approached, Elizarraraz and his friends began walking away because they felt "threatened."

Elizarraraz and his friends were backing away because "[w]e didn't want to turn our backs towards them." As the four men got closer, Villanueva began to run; Elizarraraz and Morales were face to face with the four men. Two of the men with Hernandez took off after Villanueva. As Villanueva was running away, one of the assailants hit him in the back of the head with "some kind of hard thing." After he was hit, Villanueva kept running. The blow to his head left him with a scar.

Hernandez and Lopez faced Elizarraraz and Morales. Elizarraraz identified Lopez at trial. Hernandez pointed a gun in Elizarraraz's face. Lopez asked, "Are you ready for this?" A fist fight then broke out between Morales and Lopez. Hernandez turned his attention to the fist fight and Elizarraraz took the opportunity to turn and run. When he got near the bathrooms to the taco shop, Elizarraraz heard three or four gunshots. He could not see who fired because he had his back to the fight as he ran away. After he heard the shots, Elizarraraz climbed onto the roof of the bathrooms and heard Hernandez say, "We've got one of them, let's get out of here."

Villanueva also heard the shots, but he did not see who fired them. Villanueva remembered Hernandez was wearing a red jersey.

While on the roof, Elizarraraz saw all four assailants run back to their car and climb in; he also saw Hernandez place something under the seat. Hernandez drove away with the other three passengers.

Elizarraraz went to help Morales, who was bleeding. Villanueva returned to help Morales, as did others at the scene. Someone called for the police and an ambulance, and both arrived shortly.

Elizarraraz acknowledged "hanging around" Sureno gang members and that the Sureno color was blue. He denied knowing that Morales or Villanueva were gang members. Modesto is known as a Norteno town; the Norteno gang color is red; Morales was wearing blue the day of the shooting. After the shooting, Elizarraraz moved out of state. The prosecution paid for his travel and lodging expenses so he could return and testify.

Villanueva acknowledged he had served time in prison for two weapons offenses and that he was on parole at the time of trial for a gang-related gun possession offense. He stated he began carrying a gun after Morales was shot. Villanueva acknowledged that he and Morales were Sureno gang members.

Modesto Police Officer David Watson stopped Hernandez's car shortly after the shooting. Modesto Police Office Jason Stewart handcuffed Hernandez and noticed his hands were "really wet and cold," "like if you're rinsing your hands off and didn't dry them."

A search of Hernandez's car revealed a bicycle security chain and lock. A search of Lopez's home revealed a BB gun, a .22-caliber handgun, and .22-caliber ammunition. It could not be determined conclusively if the .22-caliber bullets recovered from Morales's body had been fired by the .22-caliber gun recovered from Lopez's home.

Villanueva selected Lopez's picture from a photographic lineup. Elizarraraz and Villanueva made in-field identifications of Hernandez.

Ed Campbell, then a Stanislaus County sheriff's detective, interviewed Lopez. Lopez denied being at the taco stand at the time of the shooting. He claimed to have been visiting with a friend, R.M., the whole afternoon. He and R.M. had attended a quinceanera practice and then went to a tuxedo shop.

R.M.'s mother testified that she saw R.M. and Lopez talking outside the gate to her yard the afternoon of the shooting. R.M. testified he and Lopez spent the afternoon together. They talked after school for a while, but R.M. could not recall exactly how long, although he thought it may have been a few hours.

A gang expert, Froilan Mariscal, testified that Nortenos claim the color red and Surenos claim the color blue. Mariscal also testified that rival gangs were at "war" with each other, leading to killings. Morales was killed in an area of Modesto known as Norteno territory.

Hernandez was wearing a belt buckle with the letter "N" at the time of his arrest. He also had numerous gang tattoos and had a red bandanna tied around the steering column of his car. Hernandez had admitted to California Youth Authority officials that he was a Norteno and Surenos were his rivals.

Lopez's gang affiliations included being suspended from school for flashing gang signs, engaging in fights with known Norteno gang members, and committing a theft with known Norteno gang members. Lopez had been arrested for theft, prowling, conspiracy, and obstructing an officer in connection with a theft committed with a Norteno gang member.

Hernandez testified in his own behalf. He admitted gang membership. Hernandez said he saw Lopez standing over Morales, with his arm outstretched, and then heard five or six shots. Hernandez claimed Lopez was the shooter and that he, Hernandez, did not know Lopez had a gun with him.

Lopez did not testify.

The jury found Lopez guilty of one count of murder with a gang enhancement and a gun enhancement in the death of Morales. The jury also found him guilty of assault with a deadly weapon and a gang enhancement for the attack on Villanueva. Lopez also was found

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