Bunn v. Lopez, No. 2:11-cv-1373 MCE CKD (TEMP) P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtCAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Docket NumberNo. 2:11-cv-1373 MCE CKD (TEMP) P
PartiesREGINALD THOMAS BUNN, JR., Petitioner, v. RAUL LOPEZ, Respondent.
Decision Date25 July 2016

REGINALD THOMAS BUNN, JR., Petitioner,
v.
RAUL LOPEZ, Respondent.

No. 2:11-cv-1373 MCE CKD (TEMP) P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 25, 2016


FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel 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 January 4, 2008 in the Sacramento County Superior Court on charges of first degree murder committed in the commission of a robbery, with an enhancement for personal discharge of a firearm causing great bodily injury or death. He seeks federal habeas relief on the following grounds: (1) the trial court violated his right to a public trial; (2) his trial counsel rendered ineffective assistance in failing to object more aggressively to the trial court's failure to open the courtroom to more spectators, failing to move to sever petitioner's trial from the trial of one of his co-defendants, and failing to object to the admission of inflammatory evidence at trial; and (3) his sentence of life without parole plus 25 years-to-life constitutes cruel and unusual punishment in light of the fact that he was a juvenile when the crime was committed.

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Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

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In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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

Reginald Thomas Bunn and Antonio Lamar Minor were convicted of first degree murder (Pen.Code, § 187, subd. (a))1 of a marijuana dealer named Gamaliel Torres.2 The jury found true the special circumstance that the murder was committed while Bunn and Minor were engaged in the crime of robbery or attempted robbery within the meaning of section 190.2, subdivision (a)(17). The jury found true the allegation that Bunn and Minor had each personally discharged a firearm (Bunn fired a .357-caliber handgun and Minor fired a .410-gauge shotgun) causing Torres's death within the meaning of section 12022.53, subdivision (d).

Rejecting the claims of Bunn and Minor, who were each 17 years old at the time of the murder, of unconstitutional cruel and unusual punishment, the trial court declined to exercise its discretion to impose a 25-years-to-life sentence and instead sentenced both Bunn and Minor to indeterminate terms of life without the possibility of parole (LWOP) (§ 190.5, subd. (b)), plus 25 years to life for the firearm enhancement. A restitution fine of $10,000 was imposed under section 1202.4 and a parole revocation fine of the same amount was imposed and stayed under section 1202.45. No credit for time served was awarded.

On appeal, Bunn claims (1) the trial court in effect closed the courtroom to some of the defendant's friends and family violating his constitutional right to a public trial; and (2) his trial counsel provided ineffective assistance by (a) failing to move for severance, and (b) by failing to object and move for exclusion of certain inflammatory bad character evidence. Both Bunn and Minor claim on appeal their LWOP sentence constitutes cruel and unusual punishment and the trial court abused its discretion in rejecting a 25-years-to-life sentence. Both assert, and the People concede, the trial court erred in denying them custody credit for

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actual time served and by imposing a parole revocation fine when they had been given a LWOP sentence. We shall accept the People's concession of the last two claims and reject all others. With the aforementioned modifications, we shall affirm the judgments.

FACTUAL BACKGROUND

The Prosecution's Evidence

On March 9, 2006, at about 10:00 p.m., George Gomez, who lived next door to the parking lot for Chorley Park, heard a male say something in an angry voice, followed by several gunshots. He heard a car rev its engine. When he peered out of his blinds, Gomez saw a dark blue small SUV exit the park. Jasmine Ramos was inside her home near Chorley Park on March 9, 2006. Around 10:00 p.m., she heard gunshots and when she looked out her window, she saw a car that looked like a Ford Explorer speed past.

A little after 10:00 p.m. that same night, Sacramento Police Officer Garrett Dutra was doing a park check at Chorley Park when he noticed a black Toyota pickup parked in the parking lot. Both doors were open and the truck engine was running. When Dutra approached the truck, he saw the driver's window was shattered, although intact, and there was a bullet hole through the window. The driver, who was later identified as 19-year-old Gamaliel Torres, was still seat belted in his seat with his hands in his lap and his head leaning down. Torres was dead from a fatal gunshot wound to the upper left side of his head behind the ear and a fatal shotgun wound to his right arm. It was later determined from stippling surrounding the head wound that the gun had been either in contact with or very close to the glass window at the time Torres was shot. The muzzle of the shotgun was within three to four feet of Torres at the time of shooting. Dutra observed a cell phone headset hanging from Torres's head with no phone attached. Dutra saw blood on the inside of the window and blood dripping from the truck onto the ground.

Torres was a known dealer of marijuana. He used little baggies printed with hearts, skulls and marijuana leaves as packaging. Torres had been wearing a chain necklace that day.

Meanwhile, less than a half mile away from Chorley Park, Sacramento Police Officer Stephen Moore had stopped a dark blue Mercury Mountaineer (SUV) for speeding. Moore approached the SUV and the driver, Mylove-Smith, provided his license and insurance. Moore smelled a strong odor of marijuana and decided to search the SUV. He called for assistance as there were four individuals in the SUV. Mylove-Smith was in the driver's seat, Howard was next to him in the front passenger seat, defendant Bunn was behind Mylove-Smith in the left rear passenger seat, and

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defendant Minor was behind Howard in the right rear passenger seat. Sacramento Police Officer Brian Laird arrived to assist Moore.

Laird instructed everybody in the SUV to put their hands where the officers could see them, but Minor repeatedly dropped his hands from the back of the seat down to his seat. When the occupants of the SUV were removed, the officers discovered three sandwich-size baggies containing what appeared to be marijuana on the seat where Minor had been sitting. Laird searched Minor and found a cell phone, some change, and a .410 shotgun round in his pants pocket.

About this time, Moore heard Dutra broadcast his discovery of the body at Chorley Park. A subsequent search of the SUV uncovered a shotgun under the front passenger seat, where it would have been accessible only to Minor. The shotgun had blood on the wood part at the front. In the seat pocket in front of where Minor had been sitting, a live shotgun shell was found along with a small baggie stamped with hearts, containing some unidentified purple pills. Under the driver's seat near where Bunn's feet had been, Laird found a black .357-magnum revolver with two live rounds and one spent casing. Moore noticed blood on Bunn's hands and on the fingers of both of Minor's hands. Bunn had blood spatter on both sides of his pants, as well as on his left shoe. Later examination of the SUV disclosed blood stains in the back passenger area in eight places; seven connected with the right rear passenger area and one on the rear driver's side passenger door. DNA testing of the blood found on Minor's hand, Bunn's clothes and shoes and from the interior driver's and passenger's side rear doors of the SUV was conducted and the samples were determined to contain the same DNA profile as Torres.

The search of the SUV also revealed a Sprint cell phone and a chain necklace on the rear passenger's floorboard, where Minor had been sitting, next to a baggie of marijuana. There appeared to be blood on the phone and necklace, as well as on some of the baggies of marijuana in the SUV. A close friend of Torres identified the necklace and cell phone as Torres's phone and necklace. A shoebox in the cargo area of the SUV contained athletic shoes and about 20 small baggies of marijuana, stamped with hearts or marijuana leaves. Bunn's jacket in the rear cargo area contained marijuana packaged in a baggie with red hearts. A backpack with Howard's identification card inside was also found in the cargo area. The backpack contained a plastic baggie with 21 smaller plastic baggies inside, stamped with hearts or marijuana leaves. Beanies and a ski mask were also found inside the SUV.

Later testing showed a large amount of gunshot residue (GSR) on Torres, consistent with his having been shot twice. GSR was also found on Minor's hands, along with a large number of lead

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particles, consistent with the lead shot pellets of a shotgun. GSR was found on the back of Bunn's hands, but not his palms. The People's expert opined that Minor and Bunn had either fired a weapon, were within the vicinity of a weapon when it was fired or had handled a fired weapon or fired ammunition. One particle of GSR and nine particles of lead were recovered from the rear driver side door of the SUV. Two particles of GSR and over 30 lead particles were recovered from the rear passenger side door. No GSR was detected on the front driver or front passenger side doors. Neither Mylove-Smith or Howard had any GSR on their hands.

At autopsy it was determined that the bullet components recovered from Torres's skull were from a single jacketed bullet fired from the revolver recovered from the SUV. The shotgun shell components removed during autopsy were consistent with the shells used in the shotgun found in
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