Bortis v. Swarthout, 2:11-cv-3186-KJM-EFB P

• Decision Date: 06 August 2013
• Docket Number: No. 2:11-cv-3186-KJM-EFB P,2:11-cv-3186-KJM-EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: GARY ALLEN BORTIS, Petitioner, v. G. SWARTHOUT, Respondent.

GARY ALLEN BORTIS, Petitioner,

v.G. SWARTHOUT, Respondent.

No. 2:11-cv-3186-KJM-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: August 6, 2013

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 judgment of conviction entered against him in the Placer County Superior Court on charges of first degree murder with the use of a firearm and eight counts of possessing illegal weapons. He seeks relief on the grounds that: (1) the trial court violated his right to due process in failing to give several jury instructions; (2) his Fourth Amendment right to be free from unreasonable search and seizure was violated by the warrantless entry into his residence; and (3) his trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Background¹

Escalating tensions over a boundary dispute ended with Lawrence Ficarra lying dead of gunshot wounds in the road between his property and that belonging to defendant Gary Allen Bortis. There was no question that Bortis was the person who shot Ficarra. Instead, the principal issue for the charge of murder concerned whether Bortis shot Ficarra in defense of his live-in girlfriend, defendant Maryanne Stein. On trial at the same time, Stein defended against the charge of being an accessory after the fact to Ficarra's murder. Stein contested the prosecution's argument that she was an accessory due to her concealment of the murder weapon after the shooting and due to her fabrication of a story that Ficarra was shot only after he started to strangle her.

A jury convicted Bortis of first degree murder and found that he personally and intentionally discharged the firearm causing the death. (Pen.Code, §§ 187, 12022.53, subd. (d).)FN1 The jury also convicted him of eight counts of possessing illegal weapons. Stein was convicted of being an accessory after the fact to Ficarra's murder. (§ 32.)

FN1. Undesignated statutory references are to the Penal Code.

On appeal, Bortis contends the trial court erred by (1) failing to instruct regarding voluntary manslaughter based on imperfect defense of another, (2) denying his motion to suppress the evidence of the numerous guns discovered by the deputies during a protective sweep of Bortis's house, (3) allowing the evidence of guns not used in the shooting of Ficarra to be considered in connection with the murder charge, (3) instructing the jury with CALCRIM No. 224; and (4) ordering two trial recesses of 10 days each.

Stein also appeals, contending (1) the evidence was insufficient to convict her of being an accessory to murder, and (2) the trial court erroneously used elements of her accessory offense to deny her request for probation.

We shall affirm the convictions for Bortis and Stein in addition to the trial court's denial of probation for Stein. However, we shall order Stein's judgment modified to credit her with four days of custody credit to which she is entitled under section 4019, subdivisions (b) and (c).

FACTUAL AND PROCEDURAL HISTORY

Property Dispute

At trial, the prosecution argued that Bortis murdered Ficarra in the first degree upon premeditation, or, at a minimum, in the second degree upon provocation. To this end, the prosecution introduced evidence showing that Bortis and Stein, both of whom were school bus drivers, had lived on Boone Lane in Loomis since 2002.

Boone Lane is a dirt-gravel road on which there are seven or eight houses. In January 2005, Ficarra purchased a nearly three-acre parcel that abutted Boone Lane. Ficarra intended to subdivide his property and sell the parcels. Ficarra's property had two access routes: Saunders Avenue and Boone Lane.

Shortly after Ficarra bought his property, Bortis informed him that Boone Lane crossed about 10 feet onto Bortis's property. Over the ensuing months, the effect of Bortis's boundary claim on Ficarra's access along Boone Lane led to many arguments between the two men. Some of these altercations resulted in law enforcement intervention.

Two incidents drawing law enforcement response occurred on April 29 and 30, 2005. In the first incident, Bortis and Stein attempted to drive across Ficarra's parcel using a purported easement. Ficarra stood in their way while directing a business associate who was visiting him, Steve Dahle, to drive Ficarra's vehicle toward the defendants' vehicle. Defendants claimed that Dahle hit them; Dahle maintained he only blocked them; the independent evidence favored Dahle.

In the second incident, on April 30, 2005, Ficarra pulled out a fence post that Bortis had placed, and threatened Stein with a hammer.

Shooting

The following seven persons were the pivotal witnesses regarding the shooting, which occurred around 6:25 p.m. on September 8, 2005: Deborah Mendocino, a coworker and friend of the defendants; Amanda Davis and Tracy Baker, who lived together on Boone Lane and were neighbors of Ficarra and defendants; the two defendants themselves; and Deputies Christina Woo and Trek Sinclair, who initially responded to the shooting. We will take these persons in order.

Mendocino visited with defendants after work on their porch but left just before the shooting occurred. She was privy, however, to the following: Bortis mentioned to her that he was being harassedby a neighbor (Ficarra); and he showed her a handgun he had lodged in the back of his pants, saying he carried it "to help protect [Stein and him]" from Ficarra.

Mendocino also saw Ficarra park in a carport on Boone Lane across the street, get out, grab an orange cone (of Bortis's) from the middle of the road, and throw it. This led to a verbal spat between Ficarra and Bortis about Ficarra lacking permission to be on the property. It was at this point that Mendocino received a call from her family and left. Stein claimed that Ficarra blocked Mendocino's exit, but Mendocino testified otherwise.

Shortly before the shooting, Ficarra had gone to Davis's and Baker's home to talk to Baker. When Davis told Ficarra that Baker was not home, Ficarra sped away toward Bortis's house. Davis saw Ficarra throw the cone toward Bortis's driveway. Davis then walked toward the defendants' home to make sure they were okay; they had a visitor who was just leaving (i.e., Mendocino). Davis and Baker had their own property dispute with Ficarra; Davis knew Ficarra was aggressive and caused problems.

When Davis saw Ficarra approaching her and defendants on foot, she ran behind defendants' house to avoid him. While behind the house, Davis called Baker on a cell phone. Baker was on her way home from work. As Davis and Baker chatted over the phone for several minutes, Davis heard male voices yelling obscenities out front and saying something about money. Davis later heard a quick succession of gunshots and heard Bortis yell, "Call 911." Davis saw Baker run toward defendants' driveway, so she came around front and found Bortis and Stein standing next to one another with Ficarra bent over near his opened driver's door.

For her part, Baker, while driving up Boone Lane, saw Ficarra grab the cone and toss it onto Bortis's property. As she passed, Bortis smiled and gestured as if to signify that she was a witness to the toss.

Baker drove past, watching the scene unfold in her rear view mirror. She could not hear anything with her windows up and with Davis on the phone, but she could tell that Ficarra was "pissed off" by the way he was gesturing and storming back to his car. Ficarra got into his vehicle. Initially, it looked as if Ficarra was going to leave the area, but then he stopped and turned back toward Baker's house on Boone Lane.

At this point, Baker was parking in her driveway and getting out of her car (she was about 75 yards away). She saw Stein jump in front of Ficarra's vehicle as Bortis pointed at a sign that stated: "Access by permission only." Ficarra tried to drive his car around Stein on both sides, but she moved to block him.

Baker then saw Ficarra's car door open quickly. At this point, Baker reached into her car to grab her purse on the passenger seat; this took about three to five seconds. During this interval, she heard a rapid series of gunshots. Baker emerged from her car to see Bortis standing two to three feet away from Ficarra's opened driver's door, holding a gun pointed down at a 45-degree angle. Moving to get a better view, Baker saw Stein standing to the right of Bortis.

Baker ran toward Bortis saying, "What the hell, Gary?" Bortis said, "Call 911." Ficarra was lying on the ground under the opened driver's door. Bortis was pacing and had a look of shock on his face. Baker had seen Stein run toward the house and then come out holding a phone. Baker asked Stein if she had called 911. Stein said she had, and pulled down her shirt, saying, "Look, he tried strangling me." In the past, Bortis had shown Baker a pistol he kept "handy" because Ficarra "scare[d]" him (this pistol resembled the shooting weapon).

Placer County Sheriff's Deputies Christina Woo and Trek Sinclair initially responded to the shooting. After checking Ficarra and handcuffing Bortis, who acknowledged being the shooter, Woo asked where the gun was. Stein replied, "I'll show you," and led Deputy Sinclair to her and Bortis's house, where she retrieved the weapon, a 9mm semi-automatic. Stein refused to allow Deputy Sinclair inside.

Investigation

Bortis fired 11 rounds. A shooting expert who test-fired a gun identical to Bortis's was able to shoot 11 rounds in 3.4 seconds. The gun that Stein had given to the officers was the shooting weapon.

Ficarra had eight entry wounds, in his left arm and left torso. The forensic pathologist who performed Ficarra's autopsy concluded that at least three of the wounds were inconsistent with Ficarra's being shot while

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