Ambriz v. Swarthout

• Decision Date: 16 March 2016
• Docket Number: Case No.: 1:14-cv-00294-AWI-JLT
• Parties: MARCO ANTONIO AMBRIZ, Petitioner, v. GARY SWARTHOUT, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

MARCO ANTONIO AMBRIZ, Petitioner, v. GARY SWARTHOUT, Warden, Respondent.

Case No.: 1:14-cv-00294-AWI-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

March 16, 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 2010, a jury convicted Petitioner of shooting at an inhabited dwelling, shooting from a motor vehicle at a person, receiving stolen property, and eight counts of assault with a firearm.The trial court sentenced him to of fifteen years-to-life, which included gang-related enhancements.In the petition, he alleges various errors he contends occurred at the trial.For the reasons set forth below, the Court recommends the petition be DENIED.

I.PROCEDURAL HISTORY

After his conviction on November 23, 2010(Doc. 13, Ex.A), Petitioner appealed to the California Court of Appeals, Fifth Appellate District(the "5^th DCA"), which affirmed the conviction.(Id.).Likewise, the California Supreme Court denied his petition for review.(Lodged Document ("LD") 24; 25).

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II.FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

Around 4:00 p.m. on June 23, 2008, the Valdovinos family was startled by six gunshots fired at their home located on North Smith Road.When the shots were fired, Raquel was in the kitchen cooking with her husband Jose and her son Jesus.Raquel's daughter, Maria was in the living room breastfeeding her baby; Maria and her four children were visiting.Maria's daughter was inside watching television and her sons were outside in the backyard.Maria's brothers, Max and Juan Carlos, also were in the backyard.Jesus's girlfriend, Salina E., was resting in the garage, which had been converted into living quarters for Jesus and her.

The first three or four shots were in close succession; after a pause, more shots were fired.One of the shots hit the garage door and another shot hit near the cooler inside the garage next to where Salina E. was standing.The bullets that penetrated the garage made the mirror on the wall wobble.

Immediately upon hearing the shots, Juan Carlos ran to the chainlink fence on the north side of the property and saw a red car heading east on Olive Avenue at a high rate of speed.When Maria heard the shots, she stood up and, while holding her baby, she opened the front door.There was smoke in the air just outside the front door.Maria gathered her children and the entire Valdovinos family went outside to the front of the house, where they shortly were met by police officers.

Maria had parked her minivan directly in front of the Valdovinos house.After the shots were fired, she discovered a bullet hole in the back of the minivan.Juan Carlos's Camaro, also parked in the front of the house, had a bullet hole in it.There was a bullet hole in the garage and gunshot marks on the house.Several other vehicles were parked in front of the house.

At about the same time, Tulare County Sheriff's Detective Jesse Cox was conducting an interview at a nearby house on North Newman Road.After Cox finished the interview, he was walking back to his car when he heard six gunshots coming from a northwest direction.As he was getting into his car, Sheriff's Deputy Javier Guerrero pulled alongside Cox in a marked patrol vehicle.Cox told Guerrero about the gunshots; Guerrero told Cox he had just seen a vehicle, which he identified in his report as a red, four-door Honda Accord, leaving the area where shots had been fired.

Before meeting up with Cox, Guerrero had seen the red four-door Honda Accord traveling northbound on North Smith Street headed toward Olive Avenue.The vehicle caught his attention because it failed to stop at a stop sign and was traveling in excess of 40 miles per hour.Inside the Accord were three Hispanic males, all with shaved heads.Guerrero observed the person in the back seat lean out the window and yell something toward the house on the corner of North Smith Road and Olive Avenue.Guerrero did not stop the vehicle because he was en route to meet Cox.

Cox advised dispatch of the firing of gunshots in the vicinity, while Guerrero broadcast a description of the Accord.The two officers drove toward North Smith Road and Olive Avenue, which was 15 to 20 seconds away.Guerrero stopped to speak with the people gathered outside the house; Cox drove off to attempt to locate the Accord.

Shortly after 4:00 p.m. that same day, Sheriff's Deputy Carl Bostai saw a reddish brown colored vehicle matching the description broadcast by dispatch.There were three people in the car.Bostai made a U-turn and activated his siren in order to make a traffic stop.Initially, the Honda Accord failed to stop and Bostai had to engage in a high-speed chase.

When the Honda Accord approached a residence on Road 136, it slowed and the passengers looked around.The rear passenger, Noel, looked back toward the deputy.Marco was the front seat passenger and Ramirez was driving the Accord.Bostai saw Marco reach out the front passenger window and throw an object towards the residence on Road 136.By this time, other officers had arrived on the scene and a felony stop of the vehicle was made.

Bostai searched the area where he had seen Marco throw an object out the window.He found a .357 revolver in a pile of grass clippings.When he opened the cylinder, there were six dispensed casings and no live ammunition in the gun.

Bostai also placed a brown paper bag over the suspects' hands to preserve any gunshot residue.A subsequent test of each of the suspects' hands was negative for gunshot residue.

Sheriff's Detective Bobby Saldana documented a total of five bullet holes at the house on North Smith Road.He located one in the minivan, one in the Camaro, and a total of three in the garage door and stucco.There were no casings, indicating the weapon might be a revolver because revolvers do not leave casings after being fired.

Ramirez was interviewed by Sheriff's Detective Rodney Klassen the evening of June 23, 2008, after waiving his rights pursuant to Miranda v. Arizona(1966)384 U.S. 436(Miranda).Ramirez admitted being a Sureno gang member, but denied having a gun or knowing anything about the events surrounding the shooting.Ramirez was aware something was thrown out of the car window when the police were chasing him, but denied knowing what was thrown.

Klassen also interviewed Marco after Marco waived his Miranda rights.Marco told Klassen one of his "homies" had been shot the week before by the people who lived in the house on North Smith Road.Marco acknowledged that the "Nortenos own the whole street" and you only go down the street to cause problems for the Nortenos.When asked if he had a gun, Marco responded, "I don't know."

The gun found on Road 136 was dusted for fingerprints, but none were recovered.The gun had been listed as stolen by the Department of Justice.

The Accord, which belonged to Ramirez's father, was towed and stored in an inside storage area.The day after the shooting the Accord was processed for gunshot residue, which was found on the exterior of the front passenger door and the headliner of the rear seat.

Ramirez, Marco and Noel were charged with (1) shooting at an inhabited dwelling, in violation of Penal Code section 246,2 (2) shooting from a motor vehicle, in violation of section 12034, subdivision (c), (3) eight counts of assault with a firearm, in violation of section 245, subdivision (a)(2), and (4) receipt of stolen property, in violation of section 496, subdivision (a).It also was alleged that the crimes were committed for the benefit of a criminal street gang, in violation of section 186.22, subdivision (b), and that the defendants personally used a firearm in the commission of the assault offenses.

The information also alleged Noel was at least 14 years old and eligible to be prosecuted as an adult with respect to the count 1 offense, shooting at an inhabited dwelling.Initially, Noel's motion to sever his trial from that of his codefendants was granted; however, the trial court reconsidered the motion and, ultimately, all three defendants were tried jointly.

Department of Justice Senior CriminalistNancy McCombs has been a forensic scientist for 20 years and previously has qualified as an expert witness in ballistics.McCombs examined three bullet fragments, a bullet, and a .357 revolver that had been sent to her for testing.McCombs was unable to determine if the fragments were fired from the revolver, but concluded that the bullet was fired from the revolver.

Max associated with Norteno gang members.He acknowledged that Sureno gang members were rivals.Max was aware that Ramirez was a Sureno.Max and Ramirez had gotten into a fistfight in September 2007.In February 2008, Max was involved in a Norteno-Sureno fight at a local high school.A student was stabbed and Max cooperated with the police in their investigation of the stabbing.Max's brother, Jesus, also associated with Nortenos.

Sheriff's Deputy Michael Yandell was qualified to testify as a gang expert.Yandell testified extensively about the Norteno and Sureno gangs and their activities.

A jury convicted defendants of all charges and found the gang enhancements to be true.The jury could not reach an agreement on the personal use of a firearm enhancement.

All three defendants were sentenced to a term of 15 years to life for the count 1 offense, with the term for the count 11 offense to run concurrently.The terms for counts 2 through 10 were stayed pursuant to section 654.Various fines also were imposed and credits awarded.

(Doc. 13, Exh. A ("Ex.A"), pp. 3-5).

III.DISCUSSION

A.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...