Contreras v. Rice, CV 97-2120-JGD(RC).
| Decision Date | 07 May 1998 |
| Docket Number | No. CV 97-2120-JGD(RC).,CV 97-2120-JGD(RC). |
| Citation | 5 F.Supp.2d 854 |
| Court | U.S. District Court — Central District of California |
| Parties | Heriberto CONTRERAS, Petitioner, v. B. RICE, Respondents. |
Heriberto Contreras, Blythe, CA, pro se.
Teresa G. Mann, Office of the Atty. General, Los Angeles, CA, for Respondents.
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 and counsel for respondents.
This Report and Recommendation is submitted to the Honorable John G. Davies, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
On January 23, 1992, in the Los Angeles County Superior Court, petitioner Heriberto Contreras was convicted by a jury of second degree murder in violation of California Penal Code ("P.C.") § 187(a). Lodged Documents ("Does"), Exh. A; Clerk's Transcript ("CT") 115-116. The petitioner also pleaded guilty to driving with a suspended or revoked license in violation of California Vehicle Code ("V.C.") § 14601(a) and admitted two prior convictions for violating V.C. § 14601(a) within the past five years. Reporter's Transcript ("RT") 328:19-332:2. On March 27, 1992, the court sentenced the petitioner to fifteen years to life for the murder; however, the sentence on the Vehicle Code violation was stayed pursuant to P.C. § 654. CT 127-28.
The petitioner appealed his conviction to the California Court of Appeal, which affirmed the conviction in a reported opinion, People v. Contreras, 26 Cal.App.4th 944, 31 Cal.Rptr.2d 757 (1994).1 The petitioner filed a petition for review in the California Supreme Court, which was denied on October 26, 1994. Docs, Exh. D.
On June 13, 1996, the petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on March 19, 1997. Does, Exh. C.
The California Court of Appeal found the following facts and circumstances underlying the petitioner's conviction:2 A child died as a result of injuries sustained in a traffic collision on February 10, 1991. The collision occurred when a tow truck driven by the petitioner rear-ended the vehicle in which the child was a passenger.
The People presented evidence establishing a pattern of reckless driving by bandit tow truck drivers in general and by the petitioner in particular. The petitioner had received numerous citations for traffic violations, had been arrested for reckless driving, had a prior accident, and actively was racing other tow truck drivers to an accident scene at the time of the fatal collision. Further, the evidence indicated the petitioner knew the brakes on his tow truck were not functioning properly on the day of the collision.
Los Angeles police detective Stephen Bernard testified he investigates the operation of illegal tow truck drivers in the City of Los Angeles. These drivers, referred to as "bird-doggers" or "tow bandits," illegally monitor emergency calls on police scanners and race to accident scenes. The first driver to arrive at the scene has the pick of which disabled vehicle to tow. Competition is created by the fact an automotive repair shop will pay between $500 and $1,500 for damaged high-value cars. Bird-doggers generally have poor driving records.
Admitted bird-dogger Anthony Reedburg testified that the petitioner was his friend and employee. At the time of the accident in issue, Reedburg controlled 33 tow trucks working out of Empire Auto Restoration. The petitioner worked out of Harbor Tow which Reedburg also controlled. Reedburg testified body shops paid approximately $600 for damaged new cars but admitted he had received as much as $3,000 for a damaged vehicle.
On May 17, 1990, Los Angeles police officer Stephen Scallon saw the petitioner driving a blue Mustang at 58 miles per hour in a 35 mile per hour zone on Adams Boulevard. Scallon cited the petitioner for speeding and for driving on a revoked or suspended license. The petitioner signed the citation.
On June 16, 1990, Los Angeles police officer Billy Holland saw the petitioner turn right onto Soto Street in a gray Volkswagen without stopping for the red light. The petitioner was approximately 15 seconds late for the light. Holland cited the petitioner for failing to stop at a red light, no driver's license in his possession, and lack of proof of insurance. The petitioner signed the citation.
On July 4, 1990, California Highway Patrol officer Melanie Nava saw a Chevrolet tow truck driven by the petitioner pass her on the freeway at approximately 90 miles per hour. Nava drove at 115 miles per hour to catch the truck and paced it at approximately 85 miles per hour. The petitioner "was traveling in and out, using all lanes of travel." Nava stopped the truck, advised the petitioner he had been driving recklessly, and told him he could be arrested for reckless driving. Nava cited the petitioner for speeding because traffic conditions were light. The petitioner signed the citation.
On September 11, 1990, Los Angeles police helicopter pilot Frank King noticed a tow truck speeding in a residential area at 50 to 60 miles per hour. The truck slowed down when it went through stop signs but never went less than 30 miles per hour. King thought the truck was stolen. Los Angeles police officer Cornell Greer received a radio broadcast from King and followed a tow truck driven by the petitioner on San Vicente Boulevard. The petitioner made numerous unsafe lane changes and followed vehicles too closely. When the truck stopped at an accident scene, Greer cited the petitioner for unsafe lane changes, following too closely, and not wearing a seat belt. Greer noted on the citation that the petitioner's driving had nearly caused several traffic accidents. Greer told the petitioner his driving could have resulted in an arrest for reckless driving.
On September 17, 1990, at 10 a.m., Culver City police detective Maurice Vidican was stopped at a red light at Jefferson Boulevard and Overland Avenue in an unmarked police vehicle. Vidican noticed a tow truck approach from behind and enter the right-turn-only lane as if it were going to turn south. Vidican proceeded as the light changed but "the tow truck shot ... directly in front of me." Vidican had to slam on his brakes to avoid hitting the truck. Vidican followed the truck, which was traveling at speeds between 90 and 100 miles per hour on Jefferson Boulevard and weaving in and out of traffic. Vidican radioed for assistance and identified the petitioner when other officers stopped the truck at an accident scene at Jefferson and La Cienega Boulevards. The petitioner was arrested for reckless driving.
Also on September 17, 1990, at 4:40 p.m., Inglewood police officer Jeffrey Steinhoff was traveling northbound on La Cienega Boulevard at La Tijera Boulevard when he heard a report of a traffic accident. He saw a fire truck driving toward the accident followed by a tow truck "going from lane to lane" and traveling at 65 to 70 miles per hour. At the accident scene, the tow truck stopped in the southbound lanes of La Tijera, turned on its emergency lights, and made a U-turn crossing double yellow solid lines and "causing the northbound traffic to come to a sudden halt." The petitioner stopped next to the accident and held up traffic. Steinhoff cited the petitioner for an unsafe U-turn and no driver's license in his possession. Steinhoff discussed with the petitioner the near collision petitioner had caused.
On October 6, 1990, Renon Baker, a private citizen, noticed a tow truck tailgating her vehicle. The truck sped past her at 55 to 60 miles per hour. Ahead of them, a passenger vehicle rolled through a stop sign in an attempt to The passenger vehicle was pushed onto the sidewalk. Contreras told Baker, "I know I was going too fast."
On January 18, 1991, Los Angeles police officer William Rugh saw the petitioner driving a tow truck westbound on Slausen Avenue traveling in excess of 70 miles per hour in a 35 mile per hour zone and passing other vehicles. Rugh advised petitioner his driving was reckless and could kill someone. Rugh cited the petitioner for speeding and the petitioner signed the citation.
Los Angeles police officer Ellen Perez testified that on February 7, 1991, she saw a tow truck driven by petitioner go through a red light on Manchester Boulevard. The petitioner was 15 feet late for the light and was traveling at 40 to 45 miles per hour. Perez cited the petitioner for failing to stop for a red light and driving with a suspended driver's license. The petitioner signed the citation.
On January 19, 1991, Los Angeles police officer Robert Di Paolo issued petitioner a Department of Motor Vehicles form formally advising petitioner that his license had been suspended or revoked and he could not operate a motor vehicle in California. The petitioner signed the form in Di Paolo's presence.
Roger Muro, a principal hearing officer with the ...
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