Esparza v. Virga

• Decision Date: 04 August 2015
• Docket Number: Case No. 1:13-cv-02035 LJO MJS (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: IDELFONOSO ESPARZA, Petitioner, v. TIM V. VIRGA, Warden, Respondent.

IDELFONOSO ESPARZA, Petitioner, v. TIM V. VIRGA, Warden, Respondent.

Case No. 1:13-cv-02035 LJO MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 4, 2015

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Mark A. Johnson of the office of the Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Madera, following his conviction by jury trial on April 20, 2010, for first degree murder, willful discharge of a firearm from a vehicle, and various enhancements. (Lodged Doc. 10, Clerk's Tr. at 251-52.) On October 14, 2010, Petitioner was sentenced to an indeterminate term of life without the possibility of parole for murder consecutive to a term of twenty-five (25) years to life in state prison for the special allegation of discharging a firearm causing death.(Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, which affirmed the judgment on June 11, 2012. (Lodged Docs. 1-3, People v. Esparza, 2012 Cal. App. Unpub. LEXIS 4319 (June 11, 2012).) On September 12, 2012, the California Supreme Court denied review. (Lodged Docs. 4-5.) Petitioner did not seek collateral review of the conviction in state court.

Petitioner filed the instant federal habeas petition on December 12, 2013. (Pet., ECF No. 1.) Petitioner presents four claims for relief in the instant petition. Petitioner alleges: (1) that the trial court failed to instruct the jury that it must find corroborating evidence before it could rely on accomplice testimony; (2) ineffective assistance of counsel for failing to object to trial testimony; (3) that the trial court erred by failing to sua sponte instruct the jury regarding voluntary manslaughter; and (4) cumulative error. (Id.) Respondent filed an answer to the petition on April 16, 2014. (ECF No. 16.) Petitioner did not file a traverse. The matter stands ready for adjudication.

II. STATEMENT OF THE FACTS¹

On the afternoon of April 5, 2004, Madera County Sheriff's Lieutenant Michael Salvador was driving eastbound on 5th Street approaching Gateway Drive in the City of Madera. Lieutenant Salvador stopped at the intersection and prepared to turn onto Gateway. He heard three gunshots in rapid succession. Salvador looked south and saw two individuals run across the street toward a late model Dodge Intrepid parked near a feed store.

The two individuals entered the vehicle. One of them, a heavyset, bald, Hispanic male, climbed in the window on the passenger side. The Intrepid proceeded northbound, and Salvador unsuccessfully attempted to pursue the vehicle. He returned to the area where the Intrepid had been parked. Several witnesses pointed to a cell phone and a piece of paper on the ground and said the items belonged to the car that had just left. Salvador contacted the Madera Police Department for assistance.

Madera Police Officer Kristine Sauceda went to the scene shortly after Salvador heard the shots. She saw two brass nine-millimeter shell casings near the double yellow line on Gateway Drive in front of the feed store. The casings were "RP" brand. Sauceda also saw a silver cell phoneand two folded pieces of paper on the ground near the southwest corner of the feed store. The papers were money order receipts in the sums of $175 and $500. Law enforcement officers later determined the victim of the shooting had used the money orders to pay rent at a realty office across the street.

Madera Police Officer David Herspring spoke with Evie Morfin, an employee of a property management firm inside the realty office. Morfin said the victim of the shooting, George Ganas, was a tenant of the property management firm and had come into the office to pay his rent. After he left the office, Morfin heard two gunshots. She looked out the window of her office and saw an individual getting into the passenger side of a vehicle parked in front of the feed store. The individual was holding his hand to his back, and the vehicle left on Gateway and headed towards 4th Street at a high rate of speed.

At about 1:45 p.m. that day, Madera Police Sergeant Giachino Chiaramonte went to Madera Community Hospital to follow up on a dispatch about a possible shooting victim. Sergeant Chiaramonte went to a room where medical staff members were treating George Ganas, who had sustained a gunshot entry wound to his lower back and had large, fresh abrasions on his left elbow and palm. Sergeant Chiaramonte saw Rick Gallegos pacing in the waiting room.

At about the same time, Madera Police Officer Jason Dilbeck received a report that a shooting victim had died. Officer Dilbeck went to the crime scene and learned the passenger in the black Dodge Intrepid was Rick Gallegos, and Gallegos had gone to Madera Community Hospital. Dilbeck went to the hospital, but Gallegos had already departed. Dilbeck contacted dispatch and learned the shooting victim was the registered owner of a Dodge Intrepid. Dilbeck broadcast a " 'be on the lookout' " request for the vehicle. A short time later, the sheriff's department reported that Rick Gallegos and the Intrepid were located behind a music store.

Dilbeck went to the location and saw the car with the driver's door open. A small amount of blood was present in the middle of the backseat. Lieutenant Salvador identified the vehicle as the one he observed leaving the scene. Officer Herspring noticed blood on the bottom portion of the back of the front passenger seat. He also noticed blood on the seat itself. He said the stains were consistent with someone bleeding from the back and sitting on the seat.

Herspring located a live nine-millimeter bullet wedged in the front passenger seat. He also saw an April 5, 2004, rent receipt from the realty office in the sum of $675, the total of the two money order receipts found at the shooting scene. In the backseat of the Intrepid, officers found a car seat, a television, and a prescription bottle containing marijuana. Herspring determined that George Ganas was the registered owner of the vehicle.

Stephen Avalos, M.D., a forensic pathologist, performed an autopsy on the body of George Ganas on April 9, 2004. He said the cause of death was "a gunshot wound of his trunk, which perforated his liver and grazed his lung and penetrated the left side of his heart." Avalos recovered the bullet from the victim's heart. Officer Dilbeck said the bullet was toodeformed for testing, but its diameter was consistent with a nine-millimeter bullet.

On the afternoon of April 5, 2004, California Highway Patrol Officer Mark McAdams was driving westbound on 4th Street in Madera when he located a vehicle heading northbound on G Street at a high rate of speed. Officer McAdams slowed down to avoid a collision with the gray compact vehicle, which ran a stop sign at 45-50 miles per hour. McAdams activated his lights and siren and pursued the vehicle. The vehicle turned and accelerated as he approached.

Officer McAdams saw two individuals in the front seat and three in the back. The latter three appeared to be males with shaved heads. The vehicle went through a stop sign at Gateway Avenue and continued eastbound. McAdams slowed his patrol vehicle but continued in pursuit. The suspect vehicle stopped near an alley between D and E Streets. Three people exited the suspect car and ran down the alley. Officer McAdams did not have a clear view of them. McAdams drew his weapon at the middle rear passenger, C.A., and the driver of the vehicle, Rafael Rodriguez.

Officer Dilbeck went to the scene of the stop and obtained a statement from C.A., who Dilbeck said was 13 years old. C.A. said the shooter of George Ganas was known as "Poncho," "Bashful," and "Bash." He gave a physical description of Poncho and showed officers where the shooter lived. Officers compiled a photographic lineup that included appellant's picture. C.A. identified appellant as the shooter.

On April 9, 2004, Madera police officers executed a search warrant at the address on Cross Street that C.A. had tied to the shooter. Officer Dilbeck found an empty box of nine-millimeter shells and appellant's social security card in the home. On April 22, 2004, Madera police officers went to Rafael Rodriguez's home, searched the premises, and seized four live nine-millimeter rounds. They also seized a photograph of gang members throwing gang signs and bearing gang writing. They also seized a letter written by a Vatos Locos Surenos (VLS) gang member form a prison in San Luis Obispo.

In July 2008, the Madera Police Department ran a "Crime Stoppers" advertisement in the Madera Tribune newspaper about appellant's arrest warrant. The advertisement included a photograph of appellant. In response to the ad, Virginia Yrigollen contacted Madera Police Detective Robert Hill and Detective Sergeant Robert Salas and provided information about appellant's current whereabouts, including a possible address for him. The address was located in Mexico. Detective Hill made a map of the area and faxed the information to the U.S. Marshal in San Diego. The Marshal Service apprehended appellant at the address supplied by Yrigollen and returned him to Madera on July 23, 2008.

Yrigollen testified that she lived with her boyfriend, Felipe Franco, near Mexicali, Mexico in 2004. Their residence was about three and one-half miles from the U.S. border. She said her son, Michael Lopez, visited occasionally and that Franco was appellant's uncle. Both Yrigollen and Lopez testified that appellant goes by the nickname "Poncho." Yrigollen said appellant arrived at her home in June 2004 and stayed about a month. Appellant would also stay at his aunt's house in the Mexicali area.

Yrigollen said appellant's mother, Maria de La Luz

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