Lopez v. Sherman

ISRAEL LOPEZ, Petitioner, v. STU SHERMAN, Respondent.

Case No.: 1:19-cv-00643-LJO-JLT (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

November 1, 2019

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[TWENTY-ONE DAY OBJECTION DEADLINE]

Petitioner is currently in state prison serving a sentence of thirty-eight years for his conviction for three counts of residential robbery in concert, two counts of first degree burglary, and one count each of carjacking, felon in possession of a firearm, extortion, criminal threats, dissuading a witness, and conspiracy. He filed the instant habeas petition challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I. PROCEDURAL HISTORY

Petitioner stands convicted of three counts of residential robbery in concert, two counts of first degree burglary, and one count each of carjacking, felon in possession of a firearm, extortion, criminal threats, dissuading a witness, and conspiracy. (Doc. 16 at 10.) He is serving an aggregate prison sentence of thirty-eight years. Id.

The Fifth DCA noted that the case primarily concerned the admissibility of evidence in light of and People v. Sanchez (2016) 63 Cal.4th 665, which was decided while the appeal was pending. People v. Lopez, 2018 Cal. App. Unpub. LEXIS 7177, at *1 (Cal. App. 5th Dist. October 19, 2018). Petitioner further alleged ineffective assistance of counsel and sentencing error on appeal. Id. The Fifth DCA concluded that the Sanchez claims had merit and warranted reversal of the gang participation convictions and related enhancements, and that Petitioner was subject to retrial on those charges. Id. at *1-2. The Fifth DCA additionally concluded that three duplicative counts of conviction for first degree robbery must be vacated and dismissed, and the remaining verdicts would stand. Id. at *2. Accordingly, the Fifth DCA affirmed in part, reversed in part, and remanded for further proceedings. Id.

Petitioner filed the instant habeas petition on May 9, 2019. (Doc. 1.) Respondent filed its answer on August 6, 2019. (Doc. 16.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision¹:

Defendant was charged in a consolidated information with offenses committed against three victims during two separate incidents. As to events involving J.A. (victim 1), he was accused of first degree robbery in concert (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A); counts 1 & 8); carjacking (§ 215, subd. (a); count 2); residential burglary (§§ 459, 460, subd. (a); count 3); carrying a loaded firearm as an active gang member (§ 25850, subd. (c)(3); count 4); possession of a firearm by a convicted felon (§ 29900, subd. (a); count 6); and active participation in a criminal street gang (§ 186.22, subd. (a); count 7). Codefendants James Delacruz, Adrian Hernandez, and Frank Simental were also charged in counts 1-4 and 7-8. Count 5 alleged a violation of section 422 (criminal threats) by codefendant Hernandez only. Gang enhancement allegations (§ 186.22, subd. (b)) were included in counts 1, 2, 3, 6, and 8. Firearm enhancement allegations (§ 12022.53, subds. (b), (e)(1)) were included in counts 1, 2, and 8.

As to events involving T.C. (victim 2) and M.L. (victim 3), defendant and codefendant Delacruz were charged with first degree robbery in concert (counts 9-12); extortion of victim 2 by threat of injury (§§ 518, 519; count 13); residential burglary (count 14); carrying a loaded firearm as an active gang member (count 15); making criminal threats against victim 2 (count 16); attempting to dissuade a witness (victim 2) by means of force or fear (§ 136.1, subd. (c)(1); count 17); conspiracy to commit robbery (§ 182, subd. (a)(1); count 18); and active participation in a criminal street gang (count 19). Gang enhancement allegations were included in counts 9-14 and 16-18. Firearm enhancement allegations were included in counts 9-12 and 18.

Defendant was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (c)-(j), 1170.12, subds. (a)-(e)) and to have served two prior prison terms (§ 667.5, subd. (b)). The recidivism allegations were found true in a bifurcated bench trial. Defendant and codefendant Delacruz were jointly tried on the remaining charges before separate juries in August and September 2015. Codefendants Hernandez and Simental reportedly pleaded out of the case in July 2015.

Prosecution Case

Counts 1-8

Victim 1 lived at an apartment complex in Delano. On July 12, 2014, four male intruders kicked open his front door and entered the residence. One person stood near the doorway while another roamed the apartment. The other two men, respectively armed with a knife and a gun, accosted the victim and demanded money and a vehicle. After threatening him with bodily harm, they took $40 in cash and the keys to a truck owned by his friend, M.Q., which was parked outside. The group departed with the money, the keys, and the victim's cell phone, warning they would kill him if he reported the incident.

Frightened by the ordeal, the victim remained in his living room for an extended period of time. When he finally looked outside, he saw the truck was missing. He borrowed a neighbor's phone to call M.Q. and told him about the robbery. M.Q. came to his apartment and, once there, called 911. During the call, the dispatcher asked if any of the perpetrators' identities were known. M.Q. relayed this question to the victim and repeated his answer to the dispatcher: "Israel Lopez." Later that day, while speaking with Officer Leonel Santos of the Delano Police Department, victim 1 again referred to defendant by name and identified him from a photographic lineup as the gunman.

On July 13, 2014, police located M.Q.'s truck along a road near the county border. Codefendant Hernandez was seen walking away from the vehicle. He was accompanied by two females, including a woman named Lisa Esparza. They were questioned and released, but police arrested Hernandez and defendant later that afternoon. Victim 1 identified Hernandez from a photographic lineup the same day. One of Hernandez's shoes was later matched to an imprint found on the victim's apartment door.

On July 15, 2014, victim 1 provided a detailed account of the robbery in a video-recorded interview with Michael Strand, a Delano police officer and gang investigator. He again claimed to have recognized defendant, identifying him by name, and said he saw one of the other robbers in his neighborhood the following day, July 13. The victim provided a physical description of this person, estimating he was 20 years old, and stated a relative had told him his name was James Delacruz. Victim 1 later identified codefendant Delacruz, then age 18, from a photographic lineup.

Victim 1 also told Officer Strand the defendant was a reputed "Northerner," i.e., a Norteño gang member. He denied any personal involvement with gangs and claimed he knew defendant from childhood but had not seen him since their days of attending elementary school together. The latter assertion was untrue. Defendant, then age 30, wasnearly 11 years younger than him and could not have been his schoolmate in grade school.

In a subsequent interview, victim 1 admitted to having had a tense encounter with defendant a decade earlier, circa 2004. At the time, defendant mistakenly believed victim 1 was a gang member who had moved into the area "to run the North." Defendant pulled a knife on him and said, "if anybody takes over Delano it's going to be [me]." Third parties intervened, and the misunderstanding was peacefully resolved.

On July 31, 2014, victim 1 attended a preliminary hearing and testified against Delacruz, Hernandez, and defendant. He identified Delacruz as the lookout, Hernandez as the person with the knife, and defendant as the gunman. During the hearing, defendant allegedly glared at him and either he or Hernandez made a slashing gesture across his throat. Victim 1 later told Officer Strand that defendant's brother, Adrian Garner, tried to intimidate him in the courthouse hallway. Garner had allegedly "made an aggressive gesture" and, while looking at victim 1, "put a scalpel on his face."

In August 2014, fingerprints lifted from M.Q.'s stolen truck were matched to Lisa Esparza and codefendant Simental. Simental was charged on August 29, 2014.

In September 2014, during a recorded conversation with Officer Strand, victim 1 claimed an anonymous caller had instructed him to prepare a notarized letter retracting his allegations against defendant. He was also told not to return to court. The caller warned that he and his family members would be killed if he disobeyed.

In July 2015, victim 1 was jailed for failure to comply with a trial subpoena. When he testified the following month, he proved to be a reluctant and dubious witness. Victim 1 denied knowing defendant or recognizing him as one of the robbers. He also denied implicating him in earlier stages of the case. Portions of his testimony were impeached and refuted by the recorded police interviews, a transcript of the 911 call, and through the testimony of Officers Santos and Strand. Amid further conflicting testimony, victim 1 confirmed defendant's involvement in the robbery.

On cross-examination, victim 1 acknowledged two notable details. Besides the truck and his own property, the robbers had stolen a tablet computer belonging to one of his relatives, A.A. They had also asked him, "Where is the dope?" As will be explained, the portrayal of victim 1 as a drug dealer was an important part of the defense case.

Counts 9-19

On or about July 13, 2014, another home invasion robbery occurred in Delano. The victims did not initially report the crime. However, in one of his conversations with Officer Strand, victim 1 mentioned being told "there had been another home invasion by the same people." On August 20, 2014,

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