Garcia v. Diaz

• Decision Date: 13 October 2020
• Docket Number: Case No.: 1:20-cv-00304-NONE-JLT (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: ALBERT GARCIA, Petitioner, v. RALPH DIAZ, Respondent.

ALBERT GARCIA, Petitioner, v. RALPH DIAZ, Respondent.

Case No.: 1:20-cv-00304-NONE-JLT (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

October 13, 2020

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[THIRTY-DAY OBJECTION DEADLINE]

Petitioner is currently serving a sentence of twenty-four years to life in prison after a jury found him guilty of attempted murder, assault with a deadly weapon, and found true related gang enhancements. He filed the instant habeas petition challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I. PROCEDURAL HISTORY

Petitioner was charged with attempted murder (Pen. Code §§ 664/187, subd. (a); count 1) committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(5)); and assault with a deadly weapon (§ 245, subd. (a)(1); count 2) committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(B)); and street terrorism (§ 186.22, subd. (a); count 3.) People v. Garcia, No. F073921, 2019 Cal. App. Unpub. LEXIS 466, at *1 (Jan. 22, 2019).

A jury convicted Petitioner on all counts and found the gang allegations true. Id. On count 1, the court sentenced Petitioner to life with the possibility of parole, with minimum parole eligibility of 15 years (§ 186.22, subd. (b)(5).) Id. On count 2, the court sentenced Petitioner to an aggravated term of four years, plus five years for the gang enhancement, stayed pursuant to section 654. (§ 186.22, subd., (b)(1)(B).) Id. at *1-2. On count 3, the court sentenced Petitioner to an aggravated term of three years, stayed pursuant to section 654. Id. at *2.

Petitioner appealed to the California Court of Appeal, Fifth Appellate District ("Fifth DCA"). The Fifth DCA affirmed the judgment. Id. Petitioner filed a petition for review in the California Supreme Court, which was denied on April 10, 2019. People v. Garcia, No. S254323, 2019 Cal. LEXIS 2533 (Apr. 10, 2019). Petitioner filed the instant habeas petition on February 28, 2020. (Doc. 1.) Respondent filed its answer on May 11, 2020. (Doc. 11.) Petitioner filed a traverse on September 23, 2020. (Doc. 17.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision¹:

On the evening of April 28, 2015, Jose A. [FN. 4] went to an alley in Porterville to meet up with a friend named "Beto." Jose planned to give Beto a ride to get something to eat.

[FN. 4]: To further personal privacy interests, we will refer to the victim and witnesses by first name and last initial. (Cal. Rules of Court, rule 8.90(b) & (b)(10).)

Jose stopped his truck in the alley. Some distance away, he saw "a lot of people" at what appeared to be a party. However, Jose did not see Beto. Jose initially testified that he got out of his truck and smoked a joint for about 20 minutes, but before he finished the joint, he was attacked by "like ten" people.

In subsequent testimony, and in interviews with law enforcement in the hours and days after the incident, Jose said he went inside the nearby residence of someone named Megan D., planning to pick up Beto there and "smoke a joint." A "chubby dude" came inside and said to Jose: "'Hey, can I talk to you real quick?'" Jose went outside where defendant and over a dozen others were there standing in a "bunch." They surrounded Jose and assaulted him. He was stabbed nine or 10 times during the assault by an unidentified teenager wearing a red shirt.

Jose somehow got to his brother's front porch, where he was found bleeding from stab wounds, drifting in and out of consciousness. Responding Porterville Police Officer Vargas asked Jose where the incident had occurred, and Jose directed him towards Tomah Avenue just east of Prospect Avenue. Vargas traveled that direction and saw a trail of blood. Near the blood trail, Vargas found a Ford F-150 with an open door and shattered window. Found inside the F-150 were three baggies of a substance that tested presumptively positive for methamphetamine.

Post-incident Interviews with Jose

Detective Tashiro responded to the hospital where Jose was taken. Jose was in critical but stable condition. Jose was loopy, in a lot of pain, and was reluctant to talk at first. Eventually, Jose identified two of his attackers: "Elijah" and someone with the moniker "B-rad."

Jose said that B-rad had confronted him over being a gang dropout. B-rad asked Jose if he remembered him. After Jose said he did remember, a group of 15 to 20 people attacked him. Several of them were punching him, and one person stabbed him. Elijah was telling people to attack Jose.

On the next day, Detective Tashiro spoke with Jose again. Jose appeared to be in a lot less pain and said he was doing better. Jose picked Elijah Perez out of a lineup.

Jose also provided a description of B-rad: a bald, white "regular dorky, chunky" 30-year-old, [FN. 5] who does not look like a gangster but was actually "[k]ind of" an "OG." [FN. 6] Later that day, Detective Tashiro showed Jose a picture of defendant and Jose said, "'That's B-rad.'"

[FN. 5]: Jose was 31 at the time, and he estimated B-rad was a year or two younger than him. Defendant is about six and a half or seven years younger than Jose.

[FN. 6]: OG is a term used by gang members to describe someone who is "old school" or has been in the gang for a long time or was involved in the original development of the gang.

Jose also gave additional details about the attack. The person who stabbed him was a "youngster" (15 or 16 years old) wearing a red shirt. The assailants yelled out, "'West Side,'" during the attack. Defendant and Elijah Perez were the "main one[s]" involved in the attack. Perez told everyone, "'Stop him, stop him,'" when Jose took off running. Defendant and Perez were both hitting Jose during the attack.

Law Enforcement Investigation

Law enforcement searched the home where defendant was living. Defendant stored his items in a closet in the southeastern bedroom of the residence. He had red clothing in the closet and "little, if any, blue clothing ...." Defendant himself had several tattoos,including a "T" on one arm and a "C" on the other. Detective Hatch testified that the tattoos "form the abbreviation of T and C, and based on my previous experience dealing with Northern gang members they often have T.C. to denote their loyalty and affiliation with the Tulare County Northern gang clique."

Detective Hatch looked for signs defendant had been in an altercation and found a circular red mark on the back of his scalp approximately three inches in diameter.

Detective Tashiro tried to contact Megan D., who lived at the home outside of which the stabbing occurred. Megan said she was willing to cooperate but did not want to talk to law enforcement where gang members might be watching. They made arrangements to speak with Megan at a safe location nearby. However, Megan never showed up. After three to four months, an investigator with the district attorney's office was able to contact her. She was scared and did not want to testify. The investigator had to arrest her and bring her to court.

The investigator also had difficulty locating Jose. The investigator had to arrest Jose and bring him into court on a body attachment. At trial, Jose said he did not remember talking to a peace officer after the attack, did not remember someone asking to speak with him outside, did not remember identifying Elijah as being involved in the attack, and did not remember the name "B-rad" at all.

Gang Expert

Porterville Police Detective Kirk testified that the two primary gangs in Porterville are the Norteños (i.e., Northerners) and the Sureños (i.e., Southerners). There are three Norteño subsets in Porterville: the East Side Poros (i.e., the East Side Varios Poros, or "ESP," or "ESVP"); the Varios Centro Poros (i.e., "VCP"); and the West Side Poros (i.e., "WSP").

Predicate Offenses

The prosecutor asked Detective Kirk if he had "researched" specific crimes committed by Norteño gang members in preparation for the present case. Kirk responded that he had. First, Kirk described a robbery committed in June 2009:

"Several known and identified Northern gang members, Josue Sanchez and Roman Hernandez, contacted an individual in front of Galaxy 9 Theater here in Porterville and asked him what he had, what he had [sic] for them and while Sanchez pointed a revolver in his face, Sanchez and another gang member then began to assault the individual. [¶] Sanchez hit the individual in the face with a revolver and eventually they took the individual's wallet and then fled the area in the vehicle. They were later contacted and found to be in possession of the victim's property and arrested for that case. [¶] During Hernandez's Mirandized interview in regards to that case, he had said that this was his first day as a Norteno gang member and basically they were out on a crime spree to celebrate his first day as a Norteno ...."

Later, the prosecutor asked whether, in the course of Detective Kirk's "preparation for this case," he "uncover[ed]" another predicate crime by a Norteño. Kirk described the second predicate offense as follows:

"[I]n April of 2011, three individuals were seated in their vehicle at Murry Park when they were approached by between ten and 12 Norteno gang members. [¶] They ordered them, the three individuals, out of the vehicle and to lay face down on the ground. The three individuals did it out of fear due to being outnumbered. The Norteno gang members then took the individuals's [sic] wallets and began physically assaulting all three of them. [¶] One of the individuals was severely stabbed during the assault. The Norteno gang members ... were in the party in the area and while doing so were yelling 'Norte,' and three of the Norteno gang members were later caught and taken into custody ...."

A man named Pedro

...