Silva v. Brazelton

DAVID ANTHONY SILVA, Petitioner,

v.P.D. BRAZELTON, Warden, Respondent.

1:10-CV-00409 LJO MJS HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 12, 2013

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 (Pet., ECF No. 1) pursuant to 28 U.S.C. § 2254. Respondent, P.D. Brazelton, warden of Pleasant Valley State Prison is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

I. BACKGROUND¹

Petitioner is in custody of the California Department of Corrections and Rehabilitation serving a determinate sentence "exceeding 100 years in length plus multiple consecutive life terms" pursuant to a judgment of the Superior Court of California, County of Stanislaus on numerous counts related to a series of home invasion robberies conducted by Petitioner and two co-defendants while armed with firearms. (Lodged Doc. 1 at 2-4; People v. Morrison, 2009Cal. App. Unpub. LEXIS 3856 (Cal. App. 5th Dist. May 15, 2009)² ).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which, on May 15, 2009, affirmed the judgment of conviction, struck three of Petitioner's enhancement convictions, and stayed the sentence as to counts 14 and 35. (Lodged Doc. 1 at 161.) Petitioner filed a petition for review in the California Supreme Court, which, on August 26, 2009, denied the petition. (Lodged Doc. 6.)

On March 8, 2010, Petitioner filed the instant federal petition for writ of habeas corpus. Petitioner raises the following six claims for relief: (1) he was denied an impartial jury based on the prejudicial effect of questions regarding criminal street gangs in the jury questionnaire; (2) he was denied an impartial jury based on extrinsic evidence that a juror discussed with the jury regarding how she felt threatened due an incident outside of trial; (3) insufficient evidence supported the conviction; (4) the trial court should have suppressed wiretap evidence; (5) the trial court should have suppressed voice identification evidence; and (6) the court imposed improper sentencing enhancements. On October 29, 2010, Respondent filed an answer to the petition. Petitioner did not respond to the answer and the matter stands ready for adjudication.

II. STATEMENT OF THE FACTS³ Count 1-May 25, 2003

Shortly after midnight on May 25, 2003, Keyes resident Jimmy Lasater awoke to discover two men standing inside his house, about four feet from him, with guns pointed at his head. One gun looked like a chrome or light-colored snub-nose .38 revolver. The men were wearing ski masks, dark jackets, and what appeared to be leather gloves. They threw Lasater's pajama bottoms at him and told him to put them over his face, then pushed him to the floor and tied his hands behind his back with a rope that had been in one of the bedrooms. The pair then took everything out of Lasater's pockets and began ransacking the house. While this was going on, Lasater could hear two male voices. There was also a third robber in his bedroom, but, because this person whispered, Lasater could not determine whether the individual was male or female.

The robbers asked Lasater where his guns were, and one wanted to know which key went to the safe in Lasater's bedroom. They took the cash fromLasater's wallet, $6,000 to $10,000 from the safe, all of Lasater's approximately 10 firearms, and various the person who asked about the key to the safe later asked about the keys to Lasater's Camaro, the vehicle was not taken. At some point, the robbers called Lasater by his first name, and said they were not going to bother his cars, because he was cooperating and they knew he was going to hand them on down to his grandchildren.⁴

Lasater estimated the intruders were in his house about an hour and a half to two hours. He did not recognize them or anything about their voices, except that they sounded Hispanic to him. Authorities recovered one of his guns, a Browning nine-millimeter semiautomatic, following the arrests in this case.

Counts 2-4-June 26, 2003

In June 2003, P.S. and his wife, Jane Doe One, owned two businesses in Turlock. At approximately 12:30 a.m. on June 26, the two were asleep in their Turlock residence when they were awakened by a loud noise and the sound of glass. Upon getting out of bed, Jane Doe One discovered that the living room door was broken in two, and there were footsteps and four or five flashlight beams coming toward her. She and P.S. tried to close and lock the bedroom door, but the intruders broke through. All were dressed in ski masks, dark clothing and gloves. One's gun was touching Jane Doe One's forehead. She believed there were four or five intruders, all with guns and flashlights; P.S. believed there were two hands and two guns, one of which was silver-colored and did not have a cylinder.

Two people came into the bedroom. One briefly shined the flashlight in Jane Doe One's eyes, blinding her, and told her to look away. She complied, and was told to get down on the floor. When she did so, one of the intruders tied her hands with cords cut from electrical appliances in the bedroom, while another intruder tied her legs at the ankles. At one point, she was touched on her side with a sharp object. The first intruder took her diamond wedding ring from her finger.

P.S. was also told to get down on the ground, which he did. Electrical cords were used to tie his hands behind his back and bind his legs near the ankles. One of the intruders said, "'You know why we're here.'" The voices were male, but P.S. could not see anyone because a blanket was thrown over his upper body. He could hear things being taken out of the dressers, as well as people going in and out of the room. Although he never actually saw anyone, he heard two male voices in the bedroom, as well as footsteps elsewhere in the house. He did not notice anything unusual about the voices, but Jane Doe One believed the intruders possibly were African-American. She based this on their accents and voices, as she saw no skin.

After perhaps 10 or 15 minutes, someone pressed down on P.S. with a knee and showed him a bank deposit bag for one of the businesses, wanting to know what it was. Shortly after, something was pushed down against P.S.'s cheek, causing him to scream in pain. He was then asked where the receipts and valuables were. P.S. answered, but the intruder kept pressing the object against his left eye area and causing him to scream. When the man asked why he should stop doing what he was doing, P.S. insisted he had told thetruth about all the places he had money.

After some time passed during which the intruder apparently moved away from P.S., one of the assailants returned and pulled down the boxer shorts P.S. was wearing. Someone grabbed his penis, held the sharp object against it, and threatened to cut it off. When P.S. screamed, he was told to be quiet or the children would wake up. Then the person stopped and said, "'Your wife is so beautiful. Let me see how much you love your wife.'"

Jane Doe One, who had had her head covered with a towel or other heavy material, could hear the exchange between the intruder and her husband. The intruder then came to her, pulled off her pajamas, and began touching her hips. She struggled; he held her down with his leg and penetrated her vagina twice with his finger. After he stopped touching her, he said she was beautiful. He then returned to P.S. and again demanded money. While this was going on, Jane Doe One could hear another person in the room, taking things from the closet. All told, the intruders were in the home approximately an hour to an hour and a half. They ransacked the house, cutting open furniture and pulling up part of the rug. They took jewelry, identification, credit cards, a digital camcorder, approximately $2,000 in cash, and one of the couple's cars. They cut the home telephone line and took the couple's cell phones.

Authorities found footprints in the orchard across the street from the residence, and tire marks going eastbound. The couple's vehicle was found later that morning about a quarter to a half mile east of the residence. The couple's camcorder was recovered from Silva's residence after the arrests in this case, and he was shown on the videotape it contained.

Counts 5-9-July 15, 2003

At approximately 4:30 a.m. on July 15, 2003, four intruders, each with a flashlight and two with guns, broke through the front door of the Modesto residence shared by Ramon Mechuca, Francisco Hernandez, and Jose Hernandez. One of the guns was pointed toward Mechuca's forehead; it was black and the front part was "kind of squarish." Francisco Hernandez tried to escape through a window, but one of them grabbed him and threatened to kill him if he did not get down on the floor and pay attention. Mechuca, who was facedown on an air mattress, had his wrists and ankles bound almost immediately with black plastic ties. A blanket was pulled over his head. Francisco Hernandez was also tied up and placed next to Mechuca, and his head was covered with the same blanket.

One of the intruders, who spoke broken Spanish to Mechuca and the Hernandezes, demanded to know where the money and drugs were. When Mechuca said they had no drugs, the intruder threatened to start cutting them and then said some things in English, which Mechuca did not understand, to another person. Mechuca told them where his wallet was; they took the approximately $38 it contained and a silver ring Mechuca was wearing, and broke the men's cell phone. They also beat Francisco Hernandez, causing the blanket to come off Mechuca's head and allowing him to see Morrison's now-uncovered face.⁵ Morrison said, "'He saw my face,'" and "'Let's kill him.'"

The blanket was placed over Mechuca again, and he was hit in the head and kicked in the ribs. He pretended to be

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