Foster v. Johnson
| Decision Date | 05 April 2023 |
| Docket Number | CV 22-5422-SB(E) |
| Parties | TYRONE FOSTER, Petitioner, v. RAYBON JOHNSON, Warden, Respondent. |
| Court | U.S. District Court — Central District of California |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Stanley Blumenfeld, Jr., United States District Judge pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner represented by counsel, filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” on August 3, 2022. Respondent filed an Answer on December 9, 2022. Petitioner filed a Reply on February 8, 2023.
A Superior Court jury found Petitioner guilty of the first degree premeditated murder of Robert Ellis, Jr. (“Ellis”) (Count 1). The jury also found Petitioner guilty of five counts of the wilful, deliberate and premeditated attempted murder of five other persons “standing in front of 5507 South Vermont” (Counts 2-6). As to all six counts, the jury found true the allegations that the offenses were gang related and that Petitioner personally discharged a firearm. Petitioner received a prison sentence of 90 years to life (Reporter's Transcript [“R.T.”] 5410-20 6329-33; Clerk's Transcript [“C.T.”] 414-25, 428-33, 448-54).
The California Court of Appeal affirmed (Respondent's Lodgment 11; see People v. Foster, 61 Cal.App. 5th 430, 275 Cal.Rptr.3d 649 (2021)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgments 12-13).
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v Foster, 61 Cal.App. 5th 430, 433-39, 275 Cal.Rptr.3d 649 (2021). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
On the afternoon of March 25, 2016, Robert Ellis went to his usual barbershop located at “the Hut,” which was in a strip mall at the corner of South Vermont Avenue and 55th Street. The Hut is a known hangout for the Five Deuce Hoovers and Five One Trouble gangs, and members in both gangs were customers of the barber shop. There had been numerous shootings over many years at the location of the shooting. Ellis, however, was not in the gangs, nor was he wearing anything to suggest he was a gang member.
Ellis's barber informed him that he had a few customers ahead of him, so Ellis went outside. There were about 12 people in the parking lot. The shop was busy because it was a holiday weekend. At about 2:14 p.m., a shooter opened fire on the group and Ellis was shot and killed.
The following events were captured by surveillance cameras, and the videos were played at trial. The videos showed the shooter walking up an alley toward the strip mall. The shooter, whose face was partially obscured by a gray hoodie, ran up, crouched behind a car, and then sprang up and fired seven shots from a semiautomatic firearm. The shooter then ran away. One bullet struck and killed Ellis. The rest of the people in the parking lot fled when the shooting began.
Ellis, who had been shot in the chest, died within moments. The bullet that struck Ellis lodged in his body. No other victims were struck by gunfire. Seven expended .45 caliber casings were found on the ground. As of the time of trial, the gun used in the shooting had not been located.
On April 14, 2016, law enforcement held a press conference to notify the public of a reward being offered for information regarding the shooting. The information disclosed to the media included a general description of the suspect, surveillance video of the shooting, and published still photographs from the video - including one that zoomed in on the shooter's face. The next day, Detective Eric Crosson of the Los Angeles Police Department received tips identifying five or six different people as the suspect. One of the tips led Detective Crosson to locate a Facebook page for someone with the profile name “Dolla Sign Fatal.” The account included photographs of Foster. Crosson learned Foster's name by speaking with gang officer Robert Smith, who knew Foster.
Geqjuan Perteet was identified as a “friend” on Foster's account. Perteet's Facebook page included photographs of Foster displaying hand signs and wearing Nike basketball shoes that appeared to be the same shoes worn by the shooter.
Detective Crosson obtained search warrants for two residences associated with Foster, several phone records, and Facebook accounts. In one of the residences, officers found mail with Foster's name on it and a shoebox with gang graffiti on it. The records obtained from Facebook revealed a telephone number for a cell phone that was used to upload photographs to the account. After obtaining the cell phone records and cell tower information associated with the number, officers obtained an arrest warrant for Foster.
Foster was arrested on May 5, 2016, and was taken to the 77th Street station. Video footage of Foster showed him walking with the same distinctive gait visible in the video of the shooting (with his feet turned out at the 10 and 2 o'clock position).
The police placed Foster in a cell with an undercover agent, as part of a “Perkins operation.”[1] The agent was wearing a hidden camera that recorded both video and audio. Video and audio recordings from the body camera were played at trial.[2]
When Foster first entered the cell, he asked the agent what he was in for and the agent said he was in custody for a “hot one,” meaning a murder. Foster said, “Me too.” Foster asked the agent about the status of his case and the nature of the evidence against him. The agent talked about his purported offense and told Foster the police had camera footage of his whole face and body, but did not have footage of the shooting itself. Foster stated that, in his case, the police could not just go off video footage because “if they just got part of me or anything . . . that could be anybody.” He added that the police did not have “my weapon, no clothing, no witness.”
The agent asked Foster what “area” he was from, and Foster answered “from 40's.” The agent stated he too was from South Central Los Angeles, and asked Foster if he was “still banging.” Foster answered, “Hell yeah.” Foster agreed that if he was released, he would “have all the respect in the world.”
The agent told Foster that “homies” will cooperate with the police, and asked Foster if the police might be looking for someone else in the offense. Before Foster could answer, the agent asked, “Do you trust him?” Foster responded, “I don't trust nobody . . . .” When the agent said, Foster replied, “I think that's the only thing I'm worried about.”
After additional conversation, Foster said the person they were discussing had been arrested on a robbery and was in jail. He also said the person drove a Nissan. The agent told Foster to get in touch with him. Foster said, “He Hispanic, bro,” and the agent said, “Well, you could still get at him though.” Foster responded, “I could tell some of your boys, huh?” The agent agreed, and asked for his name. Foster said, “He don't . .. bang though, but his name is Duke,” or “Carlos Duke.”[3] The agent asked if the police had found anything during a search of Foster's residence. Foster said they took an old pair of shoes. The agent asked, “That's . . . not the ones that you had on, right?” Foster responded, “It's close to the color,” but they were not the same.
The agent asked Foster, “What enemy . . . they blaming you for?” Foster said, “some Hoovers.” The agent asked if there had been people near the person who was hit. Foster said there had been, but that they were too busy running and ducking to get a good look at him. The agent emphasized the importance of destroying any possible evidence, saying Foster should get someone to “destroy that gun,” and Foster said he would call someone. Foster spoke with a guard, who told him that no telephone was available at that time.
Foster commented that he was not concerned about fingerprints on the gun because he commonly wore gloves.
The agent asked Foster what kind of gun he used and Foster said, “a chunky little .45.” Foster said the police had little to go on because he had not shouted out his gang's name when he committed the shooting.
Officers took Foster's cell phone at the time of his arrest. The phone was later searched. The location data for Foster's phone was consistent with him being in “very close proximity of the crime scene” at the time of the shooting. Usage data for the phone indicated it was used heavily both before and after the shooting, but was turned off for the period between 2:17 p.m. and 2:46 p.m., immediately after the shooting at 2:14 p.m. Later that day, Foster warned someone listed in his contacts as “Duke” to be on alert: “Make sure u stay tucked don't cum out for nothing.”
Foster's search history reflected that he began investigating news reports of the shooting on March 25 before the lead detectives had even responded to the scene. His web search results between March 25 and March 27 included a search for “Vermont and 55th shooting,” and various other crimes including some committed in South Los Angeles and some committed out of state. On April 27th, he searched for “how long can gunpowder last on your clothes.”
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