Fernandez v. Adams
| Decision Date | 20 December 2010 |
| Docket Number | 1:07-CV-01278-OWW JMD HC |
| Court | U.S. District Court — Eastern District of California |
| Parties | DANIEL FERNANDEZ, Petitioner, v. DARRAL ADAMS, Respondent. |
Petitioner Daniel Fernandez ("Petitioner") is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On February 11, 2004, a jury convicted Petitioner of first degree murder and found true the special circumstances that the murder occurred during the commission of a burglary and robbery where Petitioner personally and intentionally discharged a firearm. (See Respondent ("Resp't") Lodged 4.) In a bifurcated proceeding, the trial court additionally found Petitioner guilty of felony possession of a firearm, and that Petitioner had a prior strike conviction pursuant to California Penal Code § 667(b)-(I), a prior serious felony conviction (§ 667(a)), and had served one prior prison term (§ 667.5(b)). (See Resp't Lodged 4.) The trial court imposed a term of twenty-five years to life for the murder and its enhancements, and a consecutive term of five years for the prior serious felony enhancement. (See Resp't Lodged 4.) The trial court additionally imposed a concurrent term of four years consisting of the middle term for the felony possession of a firearm, doubled pursuant to California's Three Strikes Law. (See Resp't Lodged 4.)
On October 18, 2005, in its opinion following Petitioner's direct appeal, the California Court of Appeal directed the trial court to issue an amended abstract of judgment to reflect Petitioner's presentence credit of 734 days actually served and stay the Penal Code Section 667.5(b) enhancement. (See Resp't Lodged 4.) In all other respects, the Court of Appeal affirmed the judgment. (See Resp't Lodged 4.)
Petitioner filed a petition for review in the California Supreme Court on November 23, 2005. (See Resp't Lodged 6.) The California Supreme Court denied the petition for review on February 1, 2006. (See Resp't Lodged 8.)
Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal on October 28, 2005. (See Resp't Lodged 5.) The Court of Appeal denied the petition without prejudice to Petitioner filing a petition for writ of habeas corpus in the Superior Court on December 19, 2005. (See Resp't Lodged 7.)
Petitioner filed a second petition for writ of habeas corpus in the California Superior Court on February 6, 2006, raising all eleven claims currently before this Court. (See Resp't Lodged 9.) The Superior Court denied the petition in a reasoned decision on February 9, 2007. (See Resp't Lodged 10.)
On March 6, 2007, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (See Resp't Lodged 11.) On March 19, 2007, the Court of Appeal denied the petition without comment. (See Resp't Lodged 12.)
On April 5, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (See Resp't Lodged 13.) On August 15, 2007, the court denied the petition without comment. (See Resp't Lodged 14.)
Petitioner filed the instant petition for writ of habeas corpus in the United States District Court, Eastern District of California on September 4, 2007. Petitioner filed an amended petition for writ of habeas corpus on February 19, 2008.1 Respondent filed an answer on May 24, 2010.2
The Court adopts the California Court of Appeal's summation of the facts surrounding Petitioner's crime and conviction:
Surjit Singh, a clerk at a convenience market, was shot and killed as someone stole two 18-packs of beer. Appellant was charged and convicted of first degree murder with the special circumstances that the murder occurred during the commission of a robbery and a burglary. Rudy Fernandez (Rudy), who was appellant's cousin, and their friend Jorge Montanez (Montanez) were originally charged with the same offense, but they pleaded guilty to second degree robbery and testified for the prosecution at appellant's trial.
On appeal, appellant argues the trial court improperly allowed the jury to hear his brother, Arthur Fernandez, refuse to testify and claim his Fifth Amendment rights. Appellant also asserts the court improperly instructed the jury to resume deliberations when the special circumstance findings were not clear, the court improperly imposed a term for the firearm enhancement in addition to his indeterminate life term, and that his actual days of presentence custody were incorrectly calculated. We will correct the calculation of actual presentence custody days and otherwise affirm.
At approximately 11:45 p.m. on Friday, November 23, 2001, Surjit Singh (Surjit) and Mohinder Singh (Mohinder) were working as sales clerks at the Quick Stop market in Tulare. The two clerks were not related. A Hispanic male entered the market and briefly spoke with Surjit. The man walked to the beer display and picked up two 18-packs of beer. He asked Surjit if he could buy the beer on credit, and Surjit said no. The man ran out of the market without paying for the beer.
Surjit shouted to Mohinder that the man ran out with the beer. Surjit jumped over the counter and followed the man into the parking lot. Mohinder followed Surjit and ran out of the market. As Mohinder turned around the corner of the building, he saw a car parked next to the dumpster. Surjit was between Mohinder and the car. Mohinder believed the man who took the beer entered the car. Another man was standing next to the passenger side, and looked up at Mohinder. Mohinder heard six or seven gunshots fired from the car, and watched as Surjit's body spun around. Surjit tried to get back into the market but collapsed in the parking lot, in front of the market's entrance. The car sped away. Mohinder went into the market to call for help but Surjit died at the scene.
At trial, Mohinder admitted that when he was interviewed at the scene, he might have made inconsistent statements and told the police that he did not leave the market. Mohinder explained, however, that he meant that he did not leave the market again after Surjit was shot. Mohinder did not speak English, and his nephew acted as the interpreter when the police interviewed Mohinder that night. The nephew testified that Mohinder was very nervous and upset, and calmed down about six hours later.
Tina Garcia had been driving past the market's parking lot when she noticed a car parked next to the dumpster. A man was standing next to the car and seemed to be drinking beer. Garcia saw one of the clerks run out of the market. This clerk turned around and ran back toward the market's entrance and then fell to the ground. Garcia's car radio had been on and she did not hear any gunshots. The man with the beer threw away the can, got into the passenger side of the car, and the car took off. Garcia pulled into the parking lot and tried to help Surjit and Mohinder.
Cynthia Mayo lived behind the market and was just pulling out of her garage when a car sped down the street. The car was completely dark and the headlights were not on, but she thought two or three people were inside.
Officers from the Tulare Police Department responded to the market and discovered Surjit's body in the parking lot, in front of the market's entrance. The officers searched the parking lot and found several beer cans, the box from an 18-pack of beer, and seven spent.22-caliber casings. The officers reviewed the market's security videotapes, which depicted the Hispanic male who entered the market and took the beer. The videotapes also picked up the sound of six or seven gunshots, and depicted Surjit running towards the market's entrance and collapsing in the parking lot.
The pathologist determined that Surjit, who was 23 years old, suffered three gunshot wounds: near the left armpit, in the lower abdomen, and in the left buttocks. The pathologist recovered three.22-caliber bullets from his body. The bullet which entered near his left armpit inflicted the fatal wound because it went through the left lung, the thoracic aorta, and the right lower lobe of the lung, and caused massive bleeding. The pathologist believed the gunman was probably stationary and Surjit was turning around as he was shot.
In March 2002, the investigators received a major break in the case when they were contacted by officers from Corcoran State Prison regarding information from an inmate, Arthur Fernandez, who was appellant's brother. Detective Robert French received a request from Arthur to speak with him, and met with Arthur. Thereafter, Detective French prepared several different photographic lineups which included appellant, Rudy Fernandez and Jorge Montanez. Mohinder reviewed these lineups, and identified Montanez as the person who entered the market and took the beer. Mohinder identified appellant as the person standing next to the car. Mohinder looked at two separate lineups before he selected appellant, and said he was 70 percent sure about appellant's identification.
In June 2002, Detective French conducted interviews with Rudy and Montanez. During these interviews, Rudy said he was driving the car, Montanez took the beer, and appellant fired the shots. In his separate interview, Montanez said he took the beer, Rudy was driving the car, and appellant fired the shots.
As set forth ante, an information was filed which charged appellant, Rudy, and Montanez with first degree murder of Surjit, with the special circumstances that the murder occurred while in the commission of a burglary and/or robbery. The court granted the parties' motion to sever their trials. Thereafter, Rudy and Montanez pleaded guilty to second degree robbery and agreed to testify for the prosecution.
Appellant was separately tried for first degree murder with special circumstances, and being an ex-felon in possession of a firearm. Appe...
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