Delatorre v. Haws, 2: 09 - cv - 1974 - TJB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date17 June 2011
Docket Number2: 09 - cv - 1974 - TJB
PartiesORLANDO DELATORRE, Petitioner, v. BRIAN HAWS, Respondent.

Petitioner, Orlando DeLaTorre, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, barely fourteen years old at the time of the underlying offense, is currently serving a maximum sentence of fifty years to life plus three additional consecutive indeterminate life sentences in prison after a jury convicted him on one count of first degree murder, three counts of attempted murder, and other related offenses. Petitioner raises five claims in this federal habeas petition; specifically: (1) he did not receive an adequate Miranda admonishment and did not waive his Miranda rights before making statements to the police which were used against him a trial ("Claim I"); (2) his statements to the police were involuntary and a result of coercion ("Claim II"); (3) there was insufficient evidence for the jury to find Petitioner guilty of first degree murder and premeditated attempted murder ("Claim III"); (4) the jury instructions removed a valid defense and removed consideration of an elementof the crime, impermissibly lowering the prosecution's burden of proof ("Claim IV"); and, (5) the imposed sentence is cruel and unusual ("Claim V"). Both Petitioner and Respondent consented to the jurisdiction of a United States Magistrate Judge in this case. Docket No. 4, 14. For the reasons stated herein, the federal habeas petition is denied.

The facts of this case are all too common. A gang member "disrespects" a rival gang member, threats are made, a weapon is retrieved, and someone is needlessly killed over mere words. As a consequence of misguided bravado, defendant Orlando Delatorre-who was 14 years old when the killing occurred but was tried as an adult-will likely spend the rest of his life in prison for aiding and abetting the murder of Adrian Cortez. . . .
Some of the victims and codefendants have the same last name. To avoid confusion, we will initially refer to them by their first and last names and thereafter use their first names only.
In October 2004, defendant lived across the street from Vanessa Ramirez. Vanessa and defendant were both Sureno gang members. Vanessa's cousin, Adrian Cortez, was a member of the rival Norteno gang.
On the night of October 2, 2004, Adrian spoke with Vanessa on the sidewalk by her residence. Adrian was accompanied by Albert Blanco, Isael Teran, and Gustavo Teran. Adrian and Gustavo were Nortenos, and Albert and Isael associated with the gang.
According to Vanessa, Adrian's companions said disrespectful things to her. Defendant heard the exchange, came out of his apartment onto the balcony, and exchanged insults with his gang rivals. They used words like "scrap," which is disrespectful of Surenos. Defendant called them "buster," which is disrespectful of Nortenos. Defendant challenged them to fight and threatened to kill Isael. Adrian, Gustavo, Albert, and Isael began to leave but continued arguing with defendant as they walked to Adrian's apartment nearby.
Defendant went back inside his apartment, telephoned David Villanueva, and asked him to come over with his gun. Defendant came back outside carrying a machete, walked down to hisdriveway, and told her his "homies" were coming with a gun and it would not be his fault if her cousin got "blasted."
Adrian returned with his friends, and the argument continued. David and Larry Villanueva arrived in a car with at least one other male, and they joined the fray. According to Vanessa, it looked as though there might be a fight. David had a rifle, and Larry had two bottles in his hands. Adrian's group picked up some rocks. Defendant told David to shoot or "kill 'em," and David fired some shots, two of which hit 16-year-old Adrian in the chest and killed him. David fired more shots as he moved toward Albert, Isael, and Gustavo, who were fleeing. Defendant and the Villanuevas then drove away in their car.
Two days later, on October 4, 2004, two undercover detectives investigating the murder saw a car matching the description of the one involved in the shooting. Larry, defendant, and two other males were in the car. The detectives followed the car to Larry's residence, where Larry went inside and returned with something in a blanket and placed it in the trunk. When the four men drove off, uniformed officers stopped the car. A loaded .357 caliber handgun and sawed-off shotgun were wrapped in a blanket in the trunk. Defendant was arrested and transported to the Lodi police station.
Detectives Brucia and Kermgard interviewed defendant after his arrest. Defendant told them he knew the concealed weapons were in the car when he was arrested. He admitted that he was a Sureno and that David and Larry were his gang friends. On the night of the shooting, defendant knew that David was going to shoot Adrian, who was a Norteno. Adrian and his Norteno friends had been disrespecting defendant's sister, so he called David and asked him to bring his gun. Defendant admitted that he told David to "kill 'em" or "shoot 'em," meaning Adrian and the other Nortenos. According to defendant, he wanted David to shoot any Norteno.
Detective Brucia testified as a gang expert and explained that the crimes were committed during a classic clash between members of rival gangs and that defendant committed the crimes on behalf of the Sureno gang. Detective Brucia was not aware of any other felonious activities by defendant, who was 14 years old when the crimes were committed.
Defendant testified he had been a Sureno for about a year at the time of the shooting. On the night of October 2, 2004, he heard arguing outside where his sisters were playing. Thinking they might be in trouble, he went outside and saw Adrian and his friends shouting insults. Defendant shouted back then went inside, called David, and asked him to bring his gun. Defendant asserted he did not want to shoot or kill anyone; he just wanted to scare offAdrian and his companions. When defendant went back outside, Adrian and his crew challenged him to a fight. Vanessa persuaded Adrian to leave with his friends, but they returned. Defendant, who claimed he did not own a machete, picked up a stick, and Vanessa pulled out a knife. David arrived with a rifle. When Adrian and his friends picked up rocks, defendant told David to "shoot 'em." Adrian had a rock the size of defendant's head, and defendant was afraid of being hit. Defendant ran to the car when he heard the shots.
Defendant admitted he knew there were guns in the car when he was arrested two days later. He stated, however, he did not learn about the guns until the officers stopped the car, at which point Larry told him there were guns in the trunk.

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 79293 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted)."Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).

1. Claim I

In Claim I, Petitioner argues that his statements to police should not have been admitted at trial because he did not receive a valid Miranda admonishment and he did not make a knowing and intelligent waiver of his rights under Miranda. Specifically, Petitioner finds fault with the interrogating detective's admonition that anything Petitioner said "may" be used against him in court, rather than "wo...

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