Hernandez v. Harrington

• Decision Date: 21 June 2010
• Docket Number: Case No. SACV 07-1096-DMG (RC).
• Citation: 720 F.Supp.2d 1161
• Court: U.S. District Court — Central District of California
• Parties: Alonso L. HERNANDEZ, aka Alonso Leroy Hernandez, aka Alonso Leeroy Hernandez, Petitioner, v. K. HARRINGTON, Respondent.

720 F.Supp.2d 1161

Alonso L. HERNANDEZ, aka Alonso Leroy Hernandez, aka Alonso Leeroy Hernandez, Petitioner,

v.K. HARRINGTON, ¹ Respondent.

Case No. SACV 07-1096-DMG (RC).

United States District Court,C.D. California.

June 21, 2010.

Alonso Leroy Hernandez, Delano, CA, pro se.

Douglas P. Danzig, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER DENYING CERTIFICATE OF APPEALABILITY

DOLLY M. GEE, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the second amended petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.

IT IS ORDERED that: (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the second amended petition for writ of habeas corpus and dismissing the action with prejudice.

This Court finds an appeal would not be taken in good faith, and petitioner has not made a substantial showing that he has been denied a constitutional right, for the reasons set forth in the Report and Recommendation; thus, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R.App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); Mayfield v. Calderon, 229 F.3d 895, 900 (9th Cir.2000).

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On September 9, 2004, in Orange County Superior Court case no. 02CF0624, a jury convicted petitioner Alonso L. Hernandez, aka Alonso Leroy Hernandez, aka Alonso Leeroy Hernandez, of one count of discharging a firearm in a school zone in violation of California Penal Code (“P.C.”) § 626.9(d) (count 1), one count of discharging a firearm with gross negligence in violation of P.C. § 246.3 (count 2), one count of attempted murder in violation of P.C. § 664/187(a) (count 3), one count of assault with a deadly weapon (firearm) in violation of P.C. § 245(a)(2) (count 4), one count of domestic battery in violation of P.C. § 243(e)(1) (count 5), one count of making criminal threats in violation of P.C. § 422 (count 6), and one count of attempting to evade a peace officer while driving recklessly in violation of California Vehicle Code (“Veh. C.”) § 28002 (count 7); and, as to counts 3, 4 and 6, the jury found it to be true that petitioner personally used a firearm within the meaning of P.C. § 12022.5(a), and as to count 3, the jury also found it to be true that petitioner inflicted great bodily injury within the meaning of P.C. § 12022.7(a) and personally discharged a firearm within the meaning of P.C. § 12022.53. Clerk's Transcript (“CT”) 75-78, 220-232, 260-62. On January 7, 2005, petitioner was sentenced to the total term of 30 years in state prison. CT 298-300, 302-4.

The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 304, which in an unpublished opinion filed August 2, 2006, 2006 WL 2147733, “reverse[d] [petitioner's] conviction for making a criminal threat” and “[i]n all other respects, [affirmed] the judgment....” Lodgment no. 1 at 18. On September 5, 2006, petitioner, represented by counsel, filed a petition for review in the California Supreme Court, ¹ which denied review on October 11, 2006. Lodgment nos. 2-3.

II

The California Court of Appeal, in affirming, in part, petitioner's convictions, made the following factual findings: ²

March 4, 2002 Incident. In February 2002, Alicia Garcia lived with petitioner and their one-year-old daughter at petitioner's sister's house. Garcia and petitioner argued, and later when Garcia was asleep, petitioner hit her on the face and leg, leaving visible bruises. Approximately one week later, Garcia's parents picked up Garcia and her daughter and took them to live at their house. Garcia did not tell petitioner she was leaving.

On March 4, 2002, Garcia and her father were home when the telephone rang, but Garcia did not answer because she thought it was petitioner. Later, petitioner arrived at the house to see his daughter. Garcia's father repeatedly told petitioner that he should stay away from Garcia for a while. Petitioner was upset, and he stood up and walked around. Garcia saw a “bulge” in his waistband and thought he had a gun. Petitioner left, and Garcia told her father petitioner had a gun. Garcia heard what she thought was petitioner kicking the toys on the front lawn.

Samuel Varela, a neighbor, was standing on his front yard with his back to the street when he heard gunshots. Varela turned around and saw a man he later identified as petitioner firing a gun into the air. Garcia and her father heard the gunshots. Petitioner got into his car and drove away.

Later, officers found four Speer nine-millimeter cartridge casings at the scene. Officers found the casings 248 feet from the Garcias' home, and approximately 750 feet from the closest elementary school. Officers also found petitioner's car approximately one block from the Garcias' home. Inside the car were two Speer nine-millimeter cartridges and a nine-millimeter gun registration in petitioner's name. Officers arrested petitioner and swabbed his hands for gunshot residue, which they found on his left hand.

July 5, 2002 Incident. In July 2002, petitioner was dating Sonia Gutierrez. On July 4, 2002, petitioner, Gutierrez, and her two sons, 11-year-old Gabriel D., and 13-year-old Carlos D., went to Gutierrez's sister's house. Carlos and Gabriel saw petitioner drinking beer throughout the evening and thought he was intoxicated. While petitioner drove them to Gutierrez's house, petitioner and Gutierrez argued because he was driving erratically.

When they got home, petitioner, Carlos, and Gabriel lit fireworks in the backyard. An officer arrived, told Gutierrez fireworks were illegal in the City of Orange, and confiscated them. After the officer left, Gutierrez went upstairs and told petitioner to get his belongings and get out of her house. Petitioner and Gutierrez continued arguing as they went downstairs. Petitioner pushed Gutierrez and she fell-Gutierrez stood up and hit petitioner. Gutierrez walked outside, and Gabriel tried to call 911, but the telephone did not work. Gabriel went outside, and Gutierrez told him to go inside and tell petitioner to leave. Gabriel went inside the house, saw petitioner changing his clothes, went back outside, and hid behind a truck. Petitioner walked outside holding a gun. Petitioner told Gutierrez “to get off the telephone.” Gabriel told petitioner “not to shoot his [mother].”

Earl McCoubrey was standing on top of the apartment complex's garage waiting for a telephone call. McCoubrey carried for protection a “six-inch cold steel recon tanto[ ]” knife in a snapped sheath in the small of his back covered by his sweater. Gutierrez walked towards McCoubrey and “asked [him] to call the police because her boyfriend was not exactly happy.” McCoubrey told her he was not going to call the police because he did not know the circumstances, but he would get down, let her use the telephone, and make sure her boyfriend “didn't get her.” McCoubrey tossed her the telephone and got off the roof. Gutierrez told him her boyfriend was probably armed. McCoubrey said, “that [was] okay, [he's] not worried, and [he] lifted up [his] sweater on [his] back and showed [her] the knife.” Gutierrez called the police.

McCoubrey saw petitioner walking towards him and Gutierrez, and he appeared to have been drinking. “[Petitioner] was holding a red flannel shirt against his right hip.” Petitioner and Gutierrez started yelling at each other. Gutierrez told petitioner he was not going to touch her children and asked him why he had not left. Petitioner responded he would have left if she had not been calling the police. “[Petitioner] made a beeline for [Gutierrez][,]” and McCoubrey believed he was threatening her. McCoubrey moved between them with his hands at his sides at approximately a 45 degree angle with his palms facing out towards where he was walking. He did not pull his knife or make any aggressive or threatening gestures. Petitioner pulled out a gun and shot McCoubrey in the stomach. Petitioner walked towards Gutierrez and pointed the gun at her. Gutierrez yelled, “ ‘The kids are out here.’ ” Petitioner “pull[ed] the trigger[,]” but the gun did not fire-it just “click[ed][.]” Petitioner ran away yelling that he was going to kill all of them. He got into his car and drove away.

Officer Serena Cryar of the City of Orange Police Department responded to a domestic disturbance call. She saw McCoubrey lying on the ground motionless. He had a large knife snapped in a sheath strapped to his belt. Cryar removed the knife from the sheath and set it aside for her safety.

After a lengthy car chase in which petitioner eventually evaded officers, officers found petitioner's car in the Lemon Heights area of Santa Ana. A few months later, officers recovered a .45 caliber handgun near where officers found the car. A forensic scientist determined the slug removed from McCoubrey and the casing found at the scene were fired from the gun found near petitioner's car.

Later, Nichols interviewed Gabriel at the police department. Gabriel told Nichols he did...