Gains v. Kernan

• Decision Date: 18 April 2011
• Docket Number: No. CIV S-03-0059 LKK EFB P,CIV S-03-0059 LKK EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: DARRION TROY GAINS, Petitioner, v. SCOTT KERNAN, Warden, Respondent.

DARRION TROY GAINS, Petitioner, v. SCOTT KERNAN, Warden, Respondent.

No. CIV S-03-0059 LKK EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: April 18, 2011.

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1998 judgment of conviction entered against him in Sacramento County Superior Court on charges of first degree murder, committed while one or more of the principals was armed with a firearm; attempted murder committed with deliberation and premeditation, and while one or more of the principals was armed with a firearm; conspiracy to commit assault with a firearm; being armed in the course of the conspiracy; and first degree burglary while one or more of the principals was armed with a firearm. He seeks relief on the grounds that: (1) juror misconduct violated his right to a fair trial; (2) the trial court's exclusion of evidence of third party culpability violated his right to due process; and (3) jury instruction error violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner'sapplication for habeas corpus relief be denied.

I. Factual Background¹

A. Prosecution's Case

The victims and the defendants had known each other for years. Defendant Cook, his brother Brian, and Brian's girlfriend, Kami Jonutz, shared an apartment in Sacramento. During that same time, Jimmy Fonseca, the murder victim, Carl Kato, the surviving victim, and Sara Beasley also shared an apartment in Sacramento.

In the first half of October, Kato, Fonseca, and one of Fonseca's friends went with Lozo to a Raley's grocery store where they saw defendants Cook and Gains. An altercation occurred and Fonseca struck Cook in the head a number of times with a gun, knocking him to the ground. Later that day, Kato had a telephone conversation with Cook, who was angry and ended the call by hanging up on Kato.

A day or so later, while defendants Cook, Lozo, and Gains were in Brian Cook's apartment, and while in the presence of defendants Lozo and Gains, defendant Cook told Jonutz he had been pistol-whipped by Kato. Defendant Cook also told Jonutz some money had been stolen from Lozo. Defendants all appeared to be angry. The group talked about the incident for almost an hour, and all three defendants made comments indicating they were going to take revenge on Kato.

On Monday, October 16th, Cook and Lozo met with Jose Gomez and told him about an occasion in which Kato and someone else took money from them. Cook and Lozo seemed angry and upset. Cook told Gomez they were looking for a gun so Gomez took them to see a friend of his who sold them a.38 caliber revolver for "a couple hundred dollars." The gun was in a black fabric case.

Gomez drove the group back downtown and the defendants and Gomez went to the Burger King where they met Gains and his girlfriend, Tomesia Hale. The group decided to take Hale home. In route, Cook told Hale that Kato had hit him in the head with a gun. He laughed along with the other men and said, "[t]hat's okay,

I'm coming back." Along the way, Cook told Gains "... I got the mask" and told Hale he and Gomez had purchased a gun earlier.

Later, defendants went to a small store where they purchased some knit caps to use when they went to Kato's apartment. After purchasing the caps, Gomez and Cook bought two additional ski masks, with eye holes already in them, at another nearby store. The group returned to Gomez's car, where defendants retrieved the gun they had purchased and agreed to meet Gomez later.

Meanwhile, around 5 p.m. that same day, Kami Jonutz returned home from work and found defendants Gains, Lozo, and Cook, and Brian Cook in her living room. Defendant Cook showed her a handgun which he removed from a leather zippered pouch. He described it as a.38 Special revolver and told her he had purchased it earlier that day. Defendants were talking about using the gun that night to get revenge on Kato, and spoke about it for almost an hour. Meanwhile, Brian brought three black knit caps into Jonutz's bedroom where he cut eye holes in them and then gave them to defendants. The three defendants left the apartment around 7 p.m.

Around 8 p.m., defendants and co-defendant Bolds met with Gomez and agreed to go to Kato's house that night. Around 9:45 p.m., the group drove to an area near Kato's apartment, and parked a short distance away. Around 9:45 p.m., the five men got out of Matt Cook's car, walked down an alley, and stood there for a while until Karen Gonzales spoke to Gomez. Karen and her partner lived in the apartment complex across the alleyway from the victims' apartment, and had seen the men standing in the alley near a dumpster. Karen thought something was suspicious because some of these men appeared to be hiding, so she approached the man near the dumpster, inquired what he was doing, and asked him to leave. Gomez, who was smoking, replied they were smoking a "joint" and told her they would be gone in a few minutes.

Gomez was armed with a small.380 automatic Glock which he had in his pocket and loaded while they were in the alley. Lozo had the.38 caliber revolver he had purchased from Garcia earlier that day. Before approaching Kato's apartment, Cook, Lozo, Gains, and Gomez pulled the ski caps down over their faces.

When Lozo and Gains approached Kato's apartment, Gomez saw someone inside pull back the curtain and look outside. The person appeared to panic and make a quick movement. Gomez thought he saw that person with a gun, whereupon he and Bolds fled toward the alleyway, running in different directions. As Gomez and Bolds left, Lozo forced the apartment door open.

Meanwhile, Kato had gone to bed and had locked his bedroom door. Beasley was in bed asleep while Fonseca sat in a chair in her bedroom listening to music and reading the newspaper near the window. Shortly before 10 p.m., Beasley was awakened by thesound of a gunshot and the sound of her bedroom door being kicked open. She saw a masked man standing in the doorway, holding a gun. The intruder was wearing dark, baggy clothing and a black ski mask with holes cut in it for his eyes and mouth. From a distance of only a few feet away, the intruder leaned over Fonseca and fired a second shot at him, stating in a deep voice, "[d]ie mother fucka, die." His voice sounded vengeful, angry and hateful. Fonseca fell to the floor and the gunman shot him again.

At the same time, Kato was awakened by loud noise and the sound of gunshots. His bedroom door was kicked opened [sic] and three men wearing dark clothing and ski masks entered. The largest of the three men was pointing a gun at him. All three of the men were about six feet tall.² Thinking it was a joke, Kato said, "[s]top playing." Seconds later, he saw two flashes and heard two gunshots. He jumped out of bed after the first shot and was hit by the second shot as he rolled off the bed. He ran into the other bedroom where he saw Fonseca lying on the floor, bleeding.

Beasley ran outside for help. Fonseca asked a neighbor who was attempting to assist him, to pick up a gun that was lying a few inches from his right hand and give the weapon to Beasley. The neighbor refused, but Beasley picked up the gun and put it beneath her bed.

About 11:30 p.m., defendants Cook and Gains returned to the apartment where they told Brian they had gone to Kato's house, kicked down the door and started shooting. Forty-five minutes later, Lozo arrived and said he had kicked in the door and was shooting.

Around 11 p.m., that same night, defendant Gains went to visit 15-year old Latrice Patterson, who lived with her grandmother. He arrived by car and appeared to be alone. He spoke with her for about 30 minutes and left.

The next morning, when Jonutz awoke, defendants Lozo and Gains were still in her apartment along with co-defendant Bolds. Lozo was talking to Brian about the previous night. He said he had kicked down the door and was shooting and that Cook and Gains had been outside the apartment somewhere. He indicated that inside the apartment there were "two guys sitting on the couch, and one of them grabbed for a gun," and was trying to load it when Lozo shot him. Lozo referred to Kato as one of the men he shotand referred to the other victim as "Mexican."

That same morning following the shooting, Gomez and Lozo had a telephone conversation in which Lozo told Gomez they had gone inside the residence and shot both Kato and another man, and that he had shot Kato in the stomach.

Meanwhile, Fonseca and Kato were transported for emergency medical care. Doctors were unable to save Fonseca. Kato sustained a bullet wound to the chest, and underwent surgery to remove the bullet. He recovered after being placed in intensive care.

Several days after the shootings, a story about the crime appeared in the newspaper. Jonutz overheard defendants and Brian Cook discussing the article in which they said they wanted Kato to die but they had "shot the wrong guy."

Defendants were taken into custody on October 20, 1995. Officers searched a vehicle parked at that apartment complex and found a plastic bag containing a maroon-colored shirt in the trunk.

When Detective Cabrera interviewed defendant Gains, Gains told Cabrera about the incident at Raley's involving Kato. Gains recounted his activities on October 16th. He indicated that he remained downtown that evening until Latrice Patterson paged him. By then, it was late, but he went to her residence where they spoke for 30 to 60 minutes and he told her about the pistol-whipping incident. Afterwards, he went to an apartment in Rancho Cordova where he spent the rest of the night. Gomez was not present.

When asked about getting revenge for the pistol-whipping incident, Gains responded "... he pulled a gun on me, yeah, but I just didn't feel the need to go kill him because I didn't die,

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