Calderon v. Sisto
| Decision Date | 06 April 2009 |
| Docket Number | Case No. SACV 08-0022-DSF (RC). |
| Citation | 609 F.Supp.2d 1077 |
| Parties | Javier Lopez CALDERON, aka Mario Garcia Lobato, aka Adolfo Bonilla Mesia, aka Javier Calderon, aka Javier Calderon Rodriguez, Petitioner v. D.K. SISTO, Respondent. |
| Court | U.S. District Court — Central District of California |
Heather F. Crawford, CAAG—Office of the Attorney General of California, San Diego, CA, for Respondent.
Javier Lopez Calderon, Vacaville, CA, pro se.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On January 19, 2005, in Orange County Superior Court case no. 83CF01254, a jury convicted petitioner Javier Lopez Calderon, aka Mario Garcia Lobato, aka Adolfo Bonilla Mesia, aka Javier Calderon, aka Javier Calderon Rodriguez, of one count of second degree murder in violation of California Penal Code ("P.C.") § 187(a) (count 1), and the jury found it to be true that petitioner personally used a firearm in the commission of the murder within the meaning of P.C. § 12022.5(a). Clerk's Transcript ("CT") 171-72, 261-63; Reporter's Transcript ("RT") 502-05. On March 25, 2005, petitioner was sentenced to the total term of 19 years to life in state prison. CT 299-300, 306-07; RT 530-31.
The petitioner appealed his conviction and sentence to the California Court of Appeal, CT 302-05, which in an unpublished opinion filed July 27, 2005, modified petitioner's sentence "by striking the two restitution fines and by reducing the four-year term for the gun-use enhancement under Penal Code Section 12022.5 to two years," and affirmed the judgment as modified. Lodgment nos. 3-6. On September 5, 2006, petitioner, proceeding through counsel, sought review in the California Supreme Court, which denied review on October 11, 2006. Lodgment no. 7; People v. Calderon, Cal. Supreme Court case no. S146298.1
The California Court of Appeal, in affirming petitioner's judgment as modified, made the following factual findings:2 In December 1983, Daniel Mejia was shot four times in the back while he lay sleeping in a trailer. The next day, Savadra Mata, Mejia's neighbor, was found in the hills surrounding the trailers carrying a bag with two guns, one of which was the type used in the shooting. Early the very next morning, petitioner was seen boarding a bus to Santa Ana, responding to another passenger that he was just leaving to go "somewhere, somewhere."
The autopsy revealed four gunshot wounds in the body. The trajectories of the bullets inflicting the wounds indicated that the person must have been approaching the sleeping Mejia as he fired. Ballistics tests were inconclusive as to whether the .38 caliber gun found in Mata's bag was the one used to kill Mejia.
In January 2003, petitioner was in custody at a federal prison, but was transported to Orange to be interrogated about the Mejia murder by two detectives, Jorge De Souza and Robert Miller, from the Orange Police Department. The conversation was recorded. However, the recording began mid-sentence with De Souza explaining that he would be interpreting for Miller, who would ask petitioner "a few little questions."3 He also asked if petitioner knew why he was there, to which petitioner replied, "sí." De Souza told petitioner that the detectives would advise him of his rights under the law, after which petitioner could tell his side of the story.
De Souza read the Miranda4 rights in Spanish to petitioner, who responded "sf" to each admonition. De Souza never expressly asked if petitioner waived those rights. However, after stating he understood each of his rights, petitioner uttered his consent to answer their questions by saying, "uh-huh," when De Souza said they would now start the questions. Based on this, the trial court found petitioner's affirmative responses to all questions to be an implied waiver.5
According to petitioner, he was playing pool at a bar when Mata approached him and asked for "a favor." Mata told petitioner he would "have problems" if he didn't come with him, so petitioner accompanied Mata to Mejia's trailer. Mata handed petitioner a gun and told him to shoot. After initially protesting the order, petitioner obeyed because he believed Mata had a gun aimed at him, despite neither seeing nor feeling a gun. He admitted that he saw someone lying in a bed. He then aimed toward the middle of that bed, and fired multiple times. He further stated he was the only shooter.
Petitioner and Mata fled the scene and hid out on a hill near a soccer field. Petitioner claims Mata forced him to stay in the hills with him for two or three days before he finally escaped. Petitioner stated to officers that he confessed because he always had the killing on his mind, and he wanted to "come clean" after having spent the intervening 20 years living in Mexico, Arizona, Connecticut and various places throughout California under a myriad of other names.
The defense called clinical psychologist Roberto Flores de Apodaca who tested petitioner and concluded petitioner was below average intelligence and education. On cross-examination, Apodaca agreed that there was no evidence or indication that petitioner had either mental illness or retardation, and his communication skills and understanding during the testing process were unfettered.
On December 21, 2007, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254 in the United States District Court for the Southern District of California, which transferred the action to this district court on January 8, 2008. On June 3, 2008, respondent filed an answer, and petitioner filed a reply on September 11, 2008.
The petition raises the following two claims:
Ground One—A Miranda violation occurred "because (a) the police began a custodial interrogation without first advising [petitioner] of his Miranda rights, (b) when Miranda rights were belatedly given they were inadequate as a matter of law, and (c) any so-called express or implied waiver was not voluntarily, knowingly, or intelligently made." ; and
Ground Two—"The trial court denied [petitioner] his right to a full and fair Miranda hearing." Id.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEPA, 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—[¶] (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [¶] (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The California Supreme Court reached the merits of petitioner's claims when it denied his petition for review without comment or citation to authority. Pinholster v. Ayers, 525 F.3d 742, 756 n. 11 (9th Cir.2008); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). However, "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.2007) (en banc), cert. denied, ___ U.S. ___, 128 S.Ct. 1878, 170 L.Ed.2d 754 (2008). Thus, in addressing petitioners' claims, this Court will consider the reasoned opinion of the California Court of Appeal, which denied the claims on their merits. Butler v. Curry, 528 F.3d 624, 640 (9th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 767, 172 L.Ed.2d 763 (2008); Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.2008).
The Fifth Amendment privilege against self-incrimination provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."6 In Miranda, the Supreme Court established a prophylactic procedural mechanism to safeguard a defendant's Fifth Amendment privilege against the inherently coercive...
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