AVILA v. GALAZA 0155149

Docket Nº:0155149
Party Name:AVILA v. GALAZA
Case Date:March 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

AVILA v. GALAZA 0155149




JESUS AVILA, Petitioner-Appellant, v. GEORGE M. GALAZA, Warden; ATTORNEY GENERAL of the State of California, Respondents-Appellees.

No. 01-55149; D.C. No. CV 98-00336 AHS


Appeal from the United States District Court for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted March 5, 2002—Pasadena, California

Filed July 22, 2002

Before: Harry Pregerson, Raymond C. Fisher, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Pregerson


Nancy S. Coan, Kaufman & Logan, San Francisco, Califor-nia, for the appellant.

Juliet H. Swoboda, Deputy Attorney General, Los Angeles, California, for the appellees.


PREGERSON, Circuit Judge:

Jesus Avila ("Jesus") appeals the district court’s denial of his federal habeas corpus petition. Jesus was convicted in the Superior Court of Los Angeles County, California, of attempted murder with the use of a firearm and sentenced to life plus eight years. Jesus asserts, among other claims in his state and federal habeas petitions, that he received ineffective assistance of trial counsel because his attorney failed to investigate or introduce at trial any evidence that Jesus’s brother, Ernesto Avila ("Ernesto"), was the shooter. Following an evidentiary hearing in state court ("state habeas hearing"), Jesus’s state habeas petition was denied. The district court adopted a magistrate judge’s recommendation to deny Jesus’s federal habeas petition. We hold that Jesus’s trial counsel provided ineffective assistance of counsel because he failed to investigate and introduce evidence that would have raised a reasonable doubt about Jesus’s guilt, and therefore reverse and remand this case to the district court with directions to issue the writ of habeas corpus unless California retries the defendant within 90 days.1


A. Facts

On August 19, 1990, Jesus, Ernesto, and thirty or forty other men and women attended a baby shower at Ham Park, which covers two square blocks in Lynwood, California. The partygoers congregated around a barbecue area and picnic tables in the northwest section of the park. Jesus and Ernesto, and several of the male attendees at the baby shower, were associated with the Young Crowd gang.

That afternoon, a group of black men, including Demetrius Kidd ("Kidd") and Romel Johnson ("Johnson"), entered the park and walked past the baby shower. Jesus and a male companion2 approached the black men and had a friendly conversation. The black men admired the tattoos on Jesus and his companion, and both Jesus and his companion lifted their tank tops to display large tattoos on their backs. Jesus then offered to go get the person who did the tattoos. What happened next was disputed at trial.

Kidd and Johnson testified for the prosecution that Jesus returned five or ten minutes later with a large group of men and women. The men told Kidd and his friends to leave the

1We review a district court’s decision to deny a petition for writ of habeas corpus de novo. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). 2Ernesto testified at the state habeas hearing that he was the person who accompanied Jesus.

park, and then started kicking and punching them. Kidd and Johnson both testified that they saw Jesus move away from the crowd as the fighting began and stand near a group of women. Johnson testified that, as he was fighting with members of the Young Crowd gang, he observed Jesus get what looked like a gun from a crack in the wall running along the western edge of the park, near where the women were standing. Kidd and Johnson and one or two of their friends then began running away from the fight, toward center field of a baseball field in the southern half of the park. Kidd and John-son testified that they looked back to see Jesus running toward them. Kidd then saw Jesus shoot a gun at them. The men continued running through the baseball field and toward Wright Road, which borders the eastern edge of the park. Kidd was shot behind his left ear when he was running across the street.

Jesus testified, in his own defense, that he was near the barbecue area of the park with his girlfriend, Joanna Espinoza ("Joanna"), when the shooting occurred. Jesus testified —consistent with Kidd’s and Johnson’s testimony — that he had a friendly conversation with a group of black men about his tattoos, and offered to get the person who did his tattoos. Jesus testified that the men declined Jesus’s offer and Jesus returned to the baby shower to get some food. Soon thereafter, Jesus saw the black men spray painting gang signs on the wall at the western edge of the park and then saw a fight break out between a group of Young Crowd gang members and the black men. Jesus testified that he attempted, unsuccessfully, to break up the fight, and then walked toward Joanna, who was near the barbecue area. When Jesus heard shots, he dove to the ground with Joanna and Elizabeth Luis ("Elizabeth"), for whom the baby shower was held.

Three witnesses corroborated Jesus’s testimony at trial. Elizabeth testified that she was with Jesus and Joanna when the shooting started and that the three of them dove to the ground. Blanca Montoya ("Blanca") — Ernesto’s girlfriend and another attendee of the baby shower — testified that she saw Jesus, Joanna, and Elizabeth getting up from the ground immediately after the shooting occurred. Alfredo Sanchez ("Alfredo") — who did not know Jesus and was not at the baby shower but recognized Jesus from the neighborhood —testified that he was in a house near the park when he heard shooting. When Alfredo looked outside the house, he saw Jesus covering two women on the ground.

B. Jesus’s Representation

Jesus was initially represented by George Denny ("Denny"), who was representing Jesus’s brother, Ernesto, in another matter at the time. Shortly after Jesus was arrested, at least three people told Denny’s investigator, David Lynn ("Lynn"), that it was Ernesto, not Jesus, who shot Kidd.3 Shortly after the shooting, Ernesto met with Denny and Lynn and confessed that he, not Jesus, was the shooter. Attorney Denny withdrew from Jesus’s case because he believed that Ernesto’s confession created a conflict of interest.

Attorney Ted Yamamoto ("Yamamoto") was in the courtroom when Denny recused himself and was appointed by the court to represent Jesus. Denny "indicated" to Yamamoto that he recused himself from Jesus’s case because he was "representing someone that . . . might have been the shooter." At the state habeas hearing, Yamamoto explained that, based on this conversation, he thought that Denny "knew or had some idea who the real shooter was," and "thought possibly the investigation might start with discovering that person’s identity." Denny did not provide Yamamoto with information about the witnesses who had spoken to Denny’s investigator, Lynn, and Yamamoto did not seek any information from Denny about the identity of the shooter.

3Two of these witnesses, Angela Espinoza and Marcella Riboni, testified at the state habeas hearing that they told Lynn that they saw Ernesto shoot Kidd. A third witness, Joanna Espinoza, testified at the state habeas hearing that she told Lynn that Ernesto had admitted to her that he was the shooter.

Before trial, Yamamoto became convinced that Ernesto was the shooter. Although Yamamoto testified at the state habeas hearing that "a series of events" before trial caused him to conclude that Ernesto was the shooter, one conversation in particular solidified this conclusion. After a pretrial conference, Yamamoto told Ernesto’s and Jesus’s mother, Christina Avila ("Christina"), that he believed Jesus was innocent and asked Christina to "ask around the neighborhood or find out who is the shooter [because] . . . it would give us somewhere to go." Yamamoto testified that Christina "looked somewhat dejected and looked back up at [Yamamoto] very distraught, and she said, ‘I think I know, but it would be trading one for the other.’ " (Emphasis added). Yamamoto was so confident that Ernesto was the shooter that he told the prosecution that Ernesto was probably the shooter during plea negotiations.

Despite Yamamoto’s belief that Ernesto was the shooter, he conducted no investigation to substantiate this belief and never instructed his investigator, Kazuo Sakamoto ("Sakamoto"), to seek out evidence implicating Ernesto. During the state habeas hearing, Yamamoto explained that he did not investigate Ernesto’s involvement in the shooting because he assumed that Jesus and Christina, Jesus’s mother, did not want him to implicate Ernesto at trial. As Yamamoto testified:

I was pretty sure at some point during that trial or prior to the trial that Ernesto was the real shooter. In my omission to act, that is to do something about it, I think I was — can be categorized as being incompetent . . . . [Jesus] never actually expressed to me a desire for me to restrain myself from going after Ernesto, but at the same time I assumed that that’s what he wanted. I also assumed that his mother didn’t want me to, because I can still see her face when she told me that I’d be trading one for the other, and because of that fact alone, I think again in retrospect, maybe I should have asked to be relieved.

(Emphasis added). Yamamoto also explained that he did not "aggressively" investigate whether Ernesto was the shooter because he "entertained a strong belief" that Ernesto was going to admit that he was the shooter before or during trial. Yamamoto testified:

As the trial went on, I would always turn around when someone came in the courtroom thinking that Ernesto was going to say stop this whole, you know, thing, and/or I was going to get a phone call during the course of the trial one evening . . . . That was in the back of my mind. Not that I planned for something like that to happen . . . . [But] I believed it...

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