Abeyta v. Giurbino, Case No. CV 06-2173-AG (OP).

Decision Date31 March 2009
Docket NumberCase No. CV 06-2173-AG (OP).
PartiesVictor ABEYTA, Petitioner, v. G.J. GIURBINO, Warden, Respondent.
CourtU.S. District Court — Central District of California

Victor Abeyta, Imperial, CA, pro se.

Ryan Mitchell Smith, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.


ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge.

IT IS ORDERED that Judgment be entered: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered granting the Petition and ordering the trial court to resentence Petitioner only on the California Penal Code section 12022.5(a) gun enhancement in accordance with Sixth Amendment principles and consistent with the views set forth in this Report and Recommendation.


OSWALD PARADA, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.


On April 11, 2006, Victor Abeyta ("Petitioner"), filed the current Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). On June 1, 2006, Respondent filed an Answer to the Petition. On June 12, 2006, Petitioner filed a Traverse to the Answer. Thus, this matter is ready for decision.


On April 9, 2003, Petitioner was convicted after a jury trial in the Los Angeles County Superior Court of assault with a firearm pursuant to California Penal Code section 245(a)(2).1 (Clerk's Transcript ("CT") at 99.) The jury also found true the allegation that in the commission of the offense, Petitioner personally inflicted great bodily injury upon the victim, causing the victim to suffer from paralysis, within the meaning of California Penal Code section 12022.7(b). (Id.) The jury also found true the special gun use allegations within the meaning of California Penal Code sections 12022.5(a), and 12022.53(b), (c), and (d). (Id.)

On May 28, 2003, Petitioner was sentenced to a total state prison term of eighteen years, consisting of the mid-term of three years for assault with a firearm, a mandatory five years pursuant to California Penal Code section 12022.7(b) (great bodily injury causing paralysis), and the high term of ten years for the gun use allegation pursuant to California Penal Code section 12022.5(a).2 (Id. at 132-33A.) The court provided no reasons for the sentences given. (Id.; Reporter's Transcript ("RT") at 1508-09.)

On October 15, 2004, 2004 WL 2320090, the California Court of Appeal reversed the section 12022.53(b), (c), and (d) findings on the ground that assault with a firearm is not an enumerated offense under that section, and affirmed Petitioner's conviction and sentence in all other respects. (Lodgment 5.)

On November 22, 2004, Petitioner filed a petition for review in the California Supreme Court. (Lodgment 6.) On January 12, 2005, the state supreme court denied the petition "without prejudice to any relief to which defendant might be entitled" after that court determined in People v. Black, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 (2005) ("Black I"),3 and People v. Towne, 44 Cal.4th 63, 78 Cal.Rptr.3d 530, 186 P.3d 10 (2008), the effect of Blakely v. Washington, 542 U.S. 296, 124 S.Ct 2531, 159 L.Ed.2d 403 (2004), on California law. (Lodgment 7.)

On March 13, 2008, after the briefing in this matter was complete, Petitioner apparently filed a motion in the California Court of Appeal to recall the remittitur in light of Supreme Court's newly decided case of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).4 (Official Records of California Courts.)5 On March 25, 2008, the court of appeal denied the motion. (Id.)

On May 7, 2008, Petitioner filed a petition for review in the California Supreme Court. (Id.) On June 11, 2008, state supreme court denied the petition. (Id.)


Since Petitioner is not challenging the sufficiency of the evidence to support the conviction, the Court adopts the factual discussion of the California Court of Appeal opinion as a fair and accurate summary of the evidence presented at trial:


Michael Romero moved in with defendant in June 2002. Mr. Romero was defendant's step-nephew. Defendant's girlfriend, Sylvia Saldivar, also resided in his residence. Also residing in the same house was defendant's brother, Danny Abeyta.FN2 Defendant and Ms. Saldivar drank beer every night. Defendant often showed Mr. Romero a gun. The gun belonged to defendant's father. Mr. Romero described defendant's conduct thusly: "I would be on the couch laying down.... He would come over to the couch, showing his father's gun and telling me he missed his father and he missed his brother, who [had] passed away." Mr. Romero often discussed the problems he was having with his girlfriend with Ms. Saldivar. Defendant would interrupt conversations between Mr. Romero and Ms. Saldivar, stating: "`What is going on? ... You guys having something between you two [?]'" Mr. Romero came home at approximately 9:30 p.m. on June 24, 2002. Mr. Romero had argued with his girlfriend. They argued about a man who was visiting her. Defendant and Ms. Saldivar were drinking at the kitchen table when Mr. Romero arrived. Mr. Romero sat down at the table with them. Mr. Romero did not drink anything. Mr. Romero had seen defendant drunk on previous occasions. Mr. Romero believed defendant was "[a] little tipsy" on June 24, 2002.

FN2. For purposes of clarity and out of no disrespect, Danny Abeyta will be referred to as Danny.

Mr. Romero received a telephone call from a friend, Jesse Gutierrez. Mr. Romero went out into the backyard and continued the conversation on a cellular telephone. Defendant came to the back porch and said: "Michael, come inside and go to bed. I am going to lock the door." Mr. Romero had a key to the house. Mr. Romero continued talking with Mr. Gutierrez on the telephone. Five minutes later, defendant repeated: "Michael, go inside. I am going to lock the door." Mr. Romero responded, "Hang on." Mr. Romero then approached defendant and said: "Why are you treating me like a little kid? You are not my father." Defendant repeated: "Go inside. I am going to bed. I am going to lock the door." Mr. Romero responded, "When I am finished, I will go . . . inside."

Defendant removed a gun from behind his back. Defendant pointed the gun at Mr. Romero's face. Defendant held the gun approximately one foot from Mr. Romero's face. Defendant again said, "Go inside and go to bed." Mr. Romero reached out to swipe the gun away and responded: "No, I am not going inside.... Get that shit out of my face." Mr. Romero pushed the gun away. Mr. Romero turned around and began to walk away. After walking approximately 10 feet, Mr. Romero looked over his right shoulder. Mr. Romero saw that defendant was still pointing the gun at him. Defendant fired the gun. Mr. Romero felt a bullet enter his body. Mr. Romero was unable to talk or move. Mr. Romero heard defendant say: "`Mike, Mike, get up. Get up.'" Mr. Romero also heard the voices of Ms. Saldivar and Danny. Mr. Romero awoke one and one-half months later in the hospital. When he awoke, Mr. Romero was unable to move any part of his body. At the time of trial, Mr. Romero had experienced three or four surgeries and expected to have one more. Mr. Romero regained some movement in his arms. Mr. Romero remained paralyzed from the chest down. The bullet remained in his spine.

Ms. Saldivar had gone to her bedroom before Mr. Romero went outside. Shortly thereafter, she heard the back door close again. Ms. Saldivar presumed defendant had also gone outside because he was no longer in the kitchen. Ms. Saldivar sat down on her bed. She heard the "pop" of a gunshot. Ms. Saldivar and Danny ran out the back door. Defendant was in the driveway. Defendant told Danny to go take care of Mr. Romero. Ms. Saldivar saw Mr. Romero laying on the grass. Ms. Saldivar testified, "[Defendant] told me that he shot Michael by accident." Ms. Saldivar had not seen the gun that night. However, Ms. Saldivar had previously seen the gun when defendant took it to car shows for protection. Ms. Saldivar also saw the gun when defendant showed it to his friends when he was intoxicated. Ms. Saldivar believed defendant was a "little bit" intoxicated on June 24, 2002.

Danny was asleep when Mr. Romero arrived home on June 24, 2002. Danny got up to use the bathroom. Danny heard a "pop" that sounded like it came from the backyard. Danny went to the back door. Danny described what happened next: "I went to the back to see what was going on.... [¶] ... I got to the back door, my brother came up to me and said he shot Michael by accident." Defendant took Danny to where Mr. Romero was on the ground. Danny did not see the gun. Danny asked Mr. Romero, "Can you hear me[?]" Mr. Romero did not respond. Defendant tried to awaken Mr. Romero. Danny returned to the house, got a towel, and called the police. Defendant took the phone from Danny. Danny went outside and placed the towel around Mr. Romero's neck. Danny again asked Mr. Romero, "Can you hear me?" Mr. Romero moved his head up and down.

Los Angeles Police Officer Salvador Lizarraga went to defendant's home on June 24, 2002, at approximately 10:30 p.m. regarding the shooting. Defendant walked out of the residence...

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