Aleman v. CDCR

• Decision Date: 12 June 2016
• Docket Number: Case No. 1:14-cv-00728-LJO-JLT
• Parties: JESUS ALEMAN, Petitioner, v. CDCR, Director, Respondent.
• Court: U.S. District Court — Eastern District of California

JESUS ALEMAN, Petitioner, v. CDCR, Director, Respondent.

Case No. 1:14-cv-00728-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

June 12, 2016

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS

(Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS

In 2011, Jesus Aleman was convicted of various serious crimes. The trial court sentenced him to life with the possibility of parole plus 120 years-to-life. In this action, he claims the Court should grant his habeas petition due to ineffective assistance of trial and appellate counsel, instructional error by the trial court, bias by the trial court and because of prosecutorial misconduct. The Court finds Petitioner has failed to demonstrate any grounds for the relief he seeks and recommends his petition be DENIED.

I. PROCEDURAL HISTORY

In 2011, Petitioner was convicted of first degree murder, attempted murder, shooting at an inhabited dwelling, and shooting from a motor vehicle. (Doc. 13, Ex. A, p. 55) The jury found true the firearms and gang enhancements. (Id.) As a result, the trial court sentenced him to a custodial term of life with the possibility of parole plus a term of 120 years-to-life.

Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the "5^th DCA"), which affirmed the conviction. (Lodged Document ("LD") 19; Doc. 13, Ex. A) He next filed a petition for review in the California Supreme Court, but that court denied it. (LD 20) Petitioner then filed a state habeas petition in the California Supreme Court that was denied. (LD 22) In its summary denial, the court cited People v. Duvall, 9 Cal.4^th 464, 474 (1995), and In re Swain, 34 Cal.2d 300, 304 (1949). (Id.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

First Trial

Shortly before 5:40 p.m. on October 3, 2009, Raylyne Subia was driving her white Pontiac to the Super 7 on Inyo Street, Tulare, to get gas. With her was Alexander Espino, a northern gang associate. They were on Inyo, waiting for a train to pass, when a black Honda Civic pulled up next to the driver's side of the Pontiac. There were perhaps five people in the Honda, all staring. Subia saw the Honda's driver and front passenger with a gun, although she was not sure if each had his own gun or if the driver passed the gun to the passenger.

Once the train passed, Subia continued on to the Super 7. The black car came back around toward Inyo, then pulled over on I Street, near to where Subia and Espino were pumping gas. The driver pointed a gun at Subia. Espino took his own gun out in response, but did not point it at anyone. Subia did not remember where they went when they left the Super 7. Shown a photographic lineup by police, Subia and Espino each identified defendant as the person who pointed the gun.

Shortly after the incident at the Super 7, Isabel Rodriguez, her sister Mireya Rodriguez, brother Antonio Rodriguez, and friend Lovina Gonzalez, were in the garage of the Rodriguez apartment in the 100 block of West Owens, at I Street, in Tulare. Also present were George Vieira, Anthony Brooks, and Raymond. Everyone was just "hang[ing] out," talking, and Raymond may have been smoking a cigarette. The car door to the garage was open. Isabel did not see anyone with a weapon.

According to Isabel, three vehicles passed by while the teenagers were in the garage. The people in the first two vehicles merely stared. The third vehicle, a black Honda, passed by on I Street. Isabel saw two people in the front, and either two or three people in the back. Defendant was driving. Jesus Vargas, whom Isabel knew from school and who associated with southern gang members, was the front seat passenger. The first time they passed, no weapon was displayed. They drove slowly by and "mugged" those in the garage ("staring at [them] real ugly"), then turned down Owens Street and went around the block. The black Honda drove past again and made a U-turn. On one occasion when they passed, Vargas "threw up a three" with his fingers—something southerners do—and said something. After the car made the U-turn, defendant pulled out a revolver and started shooting. Isabel heard three or four shots, about a second's pause, and then a couple more. She did not remember if defendant said anything to those in the garage before he started shooting. She just remembered people screaming.

Defendant, who was closest to Isabel, held the gun with his arm extended, while Vargas held the steering wheel. When defendant first pointed the gun, Isabel was outside of the garage. The others were still inside it. Defendant was pointing the gun at the entrance of the garage.

Mireya said she had been shot, then fell to the ground. Isabel and Lovina picked her up and tried to move her inside, as shots were still being fired. Isabel called 911. Other than Mireya, no one was injured in the shooting.

Officer O'Donohoe of the Tulare Police Department was the first officer on the scene. He arrived at approximately 5:45 p.m., and found Mireya lying on the cement walkway between the doors of the two apartments closest to I Street. She was conscious and vomiting, and near her navel was what appeared to be the entrance wound of a small caliber bullet. O'Donohoe took a statement from Isabel, who was wearing a red 49ers jacket.

No shell casings were found at the scene, suggesting the gun used was a revolver. Police counted five shots to the structure itself, including two that went through the back wall of the garage into the apartment beyond, plus a sixth to Mireya.

Mireya died from a gunshot wound to the abdomen. The bullet, which lodged in her spine and was determined to be .22 caliber, went through the abdominal aorta, causing her to bleed to death internally.

A day or two after the shooting, defendant, who was under arrest, waived his rights and spoke to Detectives Brian and James Haney. Defendant, whose moniker was "Brown Boy," denied being involved in any kind of gang, but admitted hanging out with the South Side Kings, a southern gang. On Saturday, he drove to Mulcahy Park in the black four-door Honda Civic that belonged to his father-in-law. He arrived at the park around 5:30 or 5:40 p.m. There were about 10 people at the park. He stayed until around 8:00 p.m., but some northerners came and there was shooting, so he just walked to his friend's house. He left the car at the park. When he returned, the police came, so he gave the keys to his friend "Charito," who took the car. Defendant did not want to get caught because he did not have a license. When the fight broke out at the park, Charito had a .45-caliber gun. Defendant stated that he himself never carried a gun.

After further discussion, defendant denied being involved in an incident in which he shot a gun from his car. He related that before he went to the park, he went to the fairgrounds. When he left, he drove down Inyo Street and got stopped by a train. A white car pulled up next to him. A woman was driving. The man in the car lowered the window and pointed a gun at defendant. Defendant recognized the man as being a northerner. After the train passed, the white car went to the Super 7. Defendant drove past and turned around and slowly drove past again, and the man took out the gun again. Defendant then just left for the park. Defendant admitted Jesus Vargas was in the car with him when this happened. Told Vargas had talked to the detectives, defendant insisted he only went to the park. He denied anyone in his car had a gun, but admitted a Sureño known as "Mundo" and someone called "Morte" (meaning death) were also in the car. Defendant denied ever going on I Street. Defendant admitted taking the Marquis Auto Sales license plate frame and the crown decal off of the car.

Eventually, defendant said he did not mean for someone to get hurt. Defendant was not trying to hurt anyone or scare them; he was not the one who shot. Defendant named Charito as the person who shot. After further discussion, defendant said he was not trying to kill anyone. Told he had been picked out of photo lineups and asked whether he wanted to kill someone or just to scare them, defendant said "scare." He admitted shooting more than once, although he did not know how many times, with a small, .22-caliber gun. Defendant claimed Vargas, Michael (whose nickname was "Bullet," but whose last name defendant did not know), and Morte also shot. After the shooting, the guns—which belonged to the gang—disappeared. Morte took themboth.

Defendant said he felt bad about what happened. Asked what caused him to do it, defendant said some fat guy acted like he had a gun. Defendant did not see a gun, but that was how he had gotten shot once before. Defendant admitted being involved in gangs since he was 12. He claimed Morte was the one who pointed the gun at the man in the white car. As for the house at which the shooting occurred, defendant frequently passed by there. It was close to Super 7. The people at the house called him a "scrap."

Tulare Police Officer Guzman testified as an expert in criminal street gangs. He explained that a gang is three or more people who associate together on a regular basis, and who have common symbols, numbers, and colors that they use to identify themselves. They usually "hang out" in a certain area. They have a hierarchy, and they collectively and individually engage in criminal activity to benefit the gang. Sureños—also known as southerners—are a gang that started in the prison system. South Side Kings, or SSK, is a local clique that falls under the umbrella of the Sureño gang. The primary activities of the southern gang are homicide, attempted homicide, drive-by shooting, robbery, drug sales, extortion, rape, and assault with deadly weapons. The South Side Kings claim what they call the southwest, which is on the west side of Tulare in the area of Mulcahy School. They wear blue and claim the number 13, while their rivals—Norteños or

...