Aguilar v. Cate, Case No.: 1:12-cv-01547-LJO-JLT

Decision Date21 July 2015
Docket NumberCase No.: 1:12-cv-01547-LJO-JLT
PartiesULICES AGUILAR, Petitioner, v. MATTHEW CATE, Respondent.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

MATTHEW CATE, Respondent.

Case No.: 1:12-cv-01547-LJO-JLT


July 21, 2015



In 2008, Petitioner was convicted of second degree murder and sentenced to an indeterminate term of 40 years-to-life. In addition, the jury found true special allegations related to a gang enhancement and a firearm enhancement.

In this action, Petitioner asserts the Double Jeopardy Clause prohibited the jury's determination of the factual grounds for the enhancements and that there was insufficient evidence to support the gang enhancement. He claims also that there were errors by the trial court and his counsel in refusing to excuse certain jury members. The Court finds Petitioner has failed to demonstrate his arguments are well-taken and recommends the petition be DENIED.


After his 2008 his conviction for second degree murder and the jury's determination that the special allegations related to a gang enhancement and a firearm enhancement were true, Petitioner was sentenced to an indeterminate term of 40 years-to-life. Petitioner appealed the conviction to the

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California Court of Appeals, Fifth Appellate District (the "5th DCA"), but it was affirmed. (Lodged Document ("LD") 1). Petitioner's subsequent petition for review filed in the California Supreme Court, was summarily denied. (LD 2). Petitioner then filed a state habeas petition in the Superior Court which was denied. (LD 4). Likewise, his habeas petitions in the 5th DCA and the California Supreme Court were summarily denied. (LD 6; 8).


The Court adopts the Statement of Facts in the 5th DCA's unpublished decision1:

Appellant was a Surenos gang member.

Prior to 2004, Cisneros, Garcia and Marquez were all Norteno gang members or associates.

On an unspecified date, Cisneros's car was stolen. Cisneros blamed Marquez for the theft.

Cisneros told Garcia that he wanted to shoot Marquez and Garcia agreed to help him. Garcia asked Guillermo Maldonado for a gun. Maldonado initially agreed. But two weeks before the murder, Maldonado told Garcia that he could not get them a gun. Garcia did not take any further action to assist Cisneros.

Cisneros began associating with Surenos gang members and associates, including appellant.

Sometime prior to the murder, appellant and Marquez got into a fight.

On May 1, Cisneros was with some Surenos when a group of Nortenos confronted them. The two groups prepared to fight. Cisneros pulled out a handgun, aimed it at the ground, and fired it repeatedly. The Nortenos left.

During the evening of May 5 and early morning hours of May 6, appellant, Cisneros, Eliseo Sanchez and Lorenzo Perez were socializing at appellant's residence. Appellant had a handgun tucked in his waistband; he said that he was going to "cap it." Cisneros and appellant got up to leave. Cisneros said, "[W]e'll be back, we're gonna go to [Marquez's] house." Appellant said, "I got your back." Appellant and Cisneros left the gathering.

After retrieving a rifle from Cisneros's house, they walked to Marquez's house. Appellant stayed outside while Cisneros entered Marquez's bedroom. Cisneros fired multiple shots from the rifle at Marquez, killing him. Cisneros and appellant ran back to appellant's house.

Shell casings and a detached bolt handle were left at the crime scene.

About a week later, detectives found a rifle in appellant's bedroom. It was subsequently determined to be the murder weapon.

Appellant admitted in a police interview that he and Cisneros went to Marquez's house. Cisneros was carrying a rifle. However, appellant denied knowing that Cisneros was going to shoot Marquez. Appellant said that he walked to the back gate and stayed there. Appellant heard gunshots. They ran back to appellant's house. Appellant took the rifle from Cisneros and

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put it in his bedroom closet.

Deputy Sheriff Joe Aguilar testified as the prosecution's gang expert. City of Madera Police Officer Jason Dilbeck testified as the defense's gang expert.

Deputy Aguilar testified that the Nortenos and the Surenos are rival gangs who both claim the town of Pixley as their territory. Nortenos use the color red, the number 14 and the letter N as identifying symbols. Surenos use the color blue, the number 13 and the letter M as identifying symbols. The primary activities of Nortenos and Surenos are burglaries, drug sales, simple assaults and assaults with deadly weapons. The predicate offenses were the conspiracy to commit murder between Garcia and Cisneros and the actual murder which involved Cisneros and appellant.

Deputy Aguilar opined that appellant was a Surenos gang member because he admitted membership, wore blue clothing, had gang tattoos and associated with other Surenos. Appellant's house was a gathering place for Surenos.

Deputy Aguilar further opined that Marquez and Garcia were affiliated with the Nortenos.

Deputy Aguilar stated that Cisneros had been a Nortenos gang member. A few months prior to the homicide, Cisneros changed his gang affiliation and started associating with Surenos gang members and associates. Deputy Aguilar based this determination on Cisneros's contacts with gang members. Cisneros's contacts prior to 2004 were all with Nortenos, but his recent contacts were with Surenos. Deputy Aguilar testified that changing one's gang affiliation is rare but it does occur. In this case, Marquez's theft of Cisneros's car and Cisneros's anger "that he couldn't do nothing about it" was the catalyst for Cisneros's change of gang affiliation from Norteno to Sureno. Deputy Aguilar testified:

"By him basically the car theft was a catalyst that-usually when someone switches sides, there has to be some type of disgruntlement. While it is rare, it does occur. And it usually has to do with a wrong that the subject feels that his particular gang has done him and not backed him up, so he feels the need to switch sides to be able to avenge that and also have backup."

Deputy Aguilar testified the killing would benefit the Surenos:

"Any time that your rival is eliminated, it shows power. Who commits it is really irrelevant as long as one of the southern gang members is with the subject. This enhances the gang's reputation, shows the aggression, and shows what they're willing to do to get rid of their rivals and to claim a turf."

Further, the murder would "enhance a subject's individual reputation and also show how willing they were to put in work for the gang."

Deputy Aguilar found the prior fight between appellant and Marquez significant in forming the opinion that the homicide benefited the Surenos. He explained:

"All I would need to know is that he's Southern and he's a Northerner. Any time there's a confrontation between two rival gangs, one has to do something about it. To not retaliate in some way on would show a weakness on your part.... [¶] ... [¶] ... It would show the subject that he himself was personally weak and that his gang was weak."

Deputy Aguilar testified that the lapse of time between the fight and the homicide was not significant, as follows:
"A subject would have to feel that he had enough backup in case something else—there were retaliations. If in the beginning they were too weak to actually do anything about it,

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they would wait until they had enough members or that subject had gathered enough of a reputation to be able to have some backup."

Deputy Aguilar also opined that the killing would "promote or further assist criminal activity by other" Surenos. He explained:

"It would also encourage other gang members to commit similar acts. It would also be used as a recruitment tool to show the younger juveniles that they're tough and not to be messed with and if they join they will be protected."

Officer Dilbeck opined there was insufficient evidence indicating that Cisneros switched gang affiliation. Also, he testified that it appeared "as if the motivation [for Marquez's murder] was personal because of the stolen car and the disrespect that went on with that."

(LD 1, pp. 4-7).


I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's...

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