Arteaga v. Biter

• Decision Date: 28 October 2013
• Docket Number: No. 2:11-cv-3181 GEB DAD P,2:11-cv-3181 GEB DAD P
• Parties: PETER MANUEL ARTEAGA, II, Petitioner, v. MARTIN BITER, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

PETER MANUEL ARTEAGA, II, Petitioner, v. MARTIN BITER, Warden,¹ Respondent.

No. 2:11-cv-3181 GEB DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: October 28, 2013

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on May 15, 2008 in the San Joaquin County Superior Court on charges of attempted first degree murder, first degree home invasion robbery, and first degree burglary. He seeks federal habeas relief on the following grounds: (1) his trial counsel rendered ineffective assistance; (2) his conviction was not supported by sufficient evidence; (3) one of the prosecution trial witnesses was "coerced" by the prosecution; (4) his constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude one African American and one Hispanic fromthe jury; and (5) the trial court violated his right to due process in refusing to reopen closing arguments or give further jury instructions in order to clarify the issue of aiding and abetting for the jury. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

I. Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

A jury found defendant Peter Manuel Arteaga guilty of the attempted first degree murder of Robert Shetterly (Pen. Code, §§ 664/187, subd. (a))², the first degree home invasion robbery of Dean Shetterly³ (§§ 211, 212.5, subd. (a)), the first degree home invasion robbery of Robert, and first degree burglary (§ 459). The jury also found true allegations defendant acted in concert with two or more other persons in committing the robberies. (§ 213, subd. (a)(1)(A).) The jury found not true allegations defendant personally inflicted great bodily injury on Robert during the commission of the attempted murder and robbery. (§12022.7, subd. (a).) In a bifurcated proceeding, the trial court found true allegations defendant's prior conviction for attempted first degree burglary constituted a serious felony (§ 667, subd. (a)(1)) and qualified as a strike (§§ 667, subd. (d); 1170.12, subd. (b)). The trial court denied defendant's motion to dismiss his prior strike conviction and sentenced him to life with the possibility of parole, plus 17 years in prison.⁴

Defendant was awarded 504 days of presentence custody credit. The recent amendments to Penal Code section 4019 do not operate to modify defendant's entitlement to credit, as he was committed for a serious felony as defined in section 1192.7. (§ 4019, subds.(b), (c); Stats.2009-2010, 3d Ex.Sess., ch. 28, § 50.)

Defendant appeals, contending the trial court erroneously denied his Wheeler-Batson⁵ motion; his attempted murder conviction is not supported by sufficient evidence; his sentence for attempted murder must be reduced because there is insufficient evidence of deliberation and premeditation; the trial court abused its discretion in denying his request to reopen closing argument; and the trial court erred in denying his motion to dismiss his prior strike conviction as untimely. We shall conclude that only the last contention has merit, affirm defendant's convictions, vacate his sentence, and remand the matter to the trial court to allow it to consider in its discretion whether to dismiss the prior strike conviction.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the evidence in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.)

At all relevant times, Dean was living with his father Robert in Lathrop. On August 4, 2007, Dean returned home around 2:00 a.m. accompanied by Angela Smith. Robert and Guillermo Riberal, a friend of Dean's, were there when they arrived, and Rachel Mount, a roommate, arrived a short time later. Dean went to bed not long after he returned home.

Thereafter, as Smith was attempting to leave, defendant, Jimmy Rodriguez, and another man pulled up in front of the house "throwing beer bottles and screaming and yelling and just acting totally belligerent." The men got out of the car and rushed inside the house. Rodriguez dragged Dean out of bed, shoved him into the laundry room, and asked, "Where's the thousand dollars at?" Dean handed Rodriguez his wallet and some additional cash. At that point, Robert entered the room, and Rodriguez "grabbed him around the back of the head . . . ." Robert said, "Look, if [Dean] owes you guys anything or money . . . I'll take care of it. Just don' t hurt my kid."

One of the other two men again demanded one thousand dollars from Dean. When Dean said he did not know what the man was talking about, the man began hitting him. The man then threw Dean in his room, got on top of him, and threatened to stab him if he kept moving. Dean eventually broke free, ran out the front door, and jumped over a fence into a neighbor's backyard. He then climbed through an open window and hid. He soon was discovered by his neighbor, who telephoned law enforcement.

Meanwhile, defendant, Rodriguez, and the third man pushed and kicked Robert across a patio and into a shed in the backyard, where they took turns beating Robert and raping Smith. That lasted about an hour. During the attack, Robert was struck with a cast iron frying pan, a ball peen hammer and a block of wood. Defendantand the third man "hit [Robert] with just about whatever they could get their hands on." Defendant repeatedly struck Robert in the head with a block of wood. "[E]very time [Robert] would make a sound, [defendant] would just hit him again with it." Rodriguez kicked Robert over 20 times; he did not hit him with any objects. All three men beat Robert, "[b]ut the guy [that was not on trial] is the one that just about killed him."

At approximately 4:00 a.m., sheriff's deputies responded to the neighbor's call. They found Dean hiding in the bathroom. He explained that he had been awakened at his home by someone who beat him and took his wallet and that he had fled to his neighbor's home to hide. Deputies placed Dean in their patrol car and went to his home to confirm his story.

When deputies arrived at Dean's home, the front door was open, and there were three cars in the driveway, including a Toyota Camry with one of its rear doors open. The Toyota was registered to defendant, and defendant's driver's license and paperwork bearing his name were found inside the car.

As deputies approached the house, they heard the front door slam shut. At that point, they called for backup. Additional deputies arrived a few minutes later and secured the scene. Deputies heard some noises and thought someone may have left through an alley behind the house. Deputies knocked on the door and a few minutes later Mount answered. She was scared and had been hiding. She was the only person inside the house.

Deputies found Robert, Smith, and Rodriguez in the shed behind the house. Robert was lying on his back in a pool of blood. His face and head were covered in blood, and there were lacerations on the top of his head. He was semiconscious, moaning, and had trouble speaking. Deputies found a crowbar with a piece of cloth wrapped around one end, a cast iron frying pan that was dented on the bottom and appeared to have dried blood and hair stuck to it, and a block of wood with blood on it in the shed.

Rodriguez and Smith were having sexual intercourse approximately three feet away from Robert in the shed. The deputy who discovered them testified that the intercourse appeared to be consensual. Dean's wallet and Robert's keys were found in Rodriguez's pocket.

Smith told one of the deputies she had been raped and was taken to the hospital for a sexual assault exam. The DNA from two individuals was found on a vaginal swab taken from Smith. There was one major and one minor contributor. The profile of the major contributor was the same as Smith's own profile, and Rodriguez could not be excluded as a minor contributor. Defendant was eliminated as a contributor. There was a mixture of DNA from at least three individuals on Smith's panties, consistent with one major and at least two minor contributors. The profile of the major contributor was the same as Rodriguez's profile. The profile of one of the minor contributors was the same as defendant's profile.

Smith could not be excluded as the second minor contributor. Finally, DNA from at least three contributors was found on Smith's shorts. The major contributor's profile was the same as Rodriguez's, and neither defendant nor Smith could be excluded as minor contributors. The probability that a random person would possess the same profile as the major contributor is 1 in 130 quintillion African Americans; 1 in 3 sextillion Caucasians; and 1 in 1.4 sextillion Hispanics. As for the mixtures that contained at least three contributors, the probability that a random person would possess a profile that was included in that mixture is 1 in 2.2 billion African Americans; 1 in 540 million Caucasians; and 1 in 450 million Hispanics.

Robert was taken to the hospital and found to have multiple skull fractures, some of which were depressed. There was bleeding in and around his brain. He also had numerous lacerations on his scalp, fractured ribs, and bleeding in his chest. When he arrived at the hospital, he was nonresponsive and remained unconscious for several days. He was in the hospital for approximately two weeks and spent most of that time in the intensive care unit.

Defendant was taken into custody roughly two weeks after the incident. He said he had been drinking with his cousin in Stockton on the night in question and ended up at a party in Lathrop. He was "pretty intoxicated" and could not remember

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