Hernandez v. New Folsom State Prison Warden, 1:10-cv-00391-LJO-JLT HC

• Decision Date: 26 February 2012
• Docket Number: 1:10-cv-00391-LJO-JLT HC
• Parties: JOSE J. HERNANDEZ, Petitioner, v. NEW FOLSOM STATE PRISON WARDEN, Respondent.
• Court: U.S. District Court — Eastern District of California

JOSE J. HERNANDEZ, Petitioner,

v.NEW FOLSOM STATE PRISON WARDEN, Respondent.

1:10-cv-00391-LJO-JLT HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 26, 2012

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving a sentence of life without the possibility of parole¹ pursuant to a September 26, 2007 judgment of the Superior Court of California, County of Tulare (the "Superior Court"), for the following convictions: (1) first degree felony murder with a robbery/burglary special circumstance (Cal. Pen. Code § 187(a)); (2) attempted murder of a peace officer, with a special allegation that theoffense occurred while the officer was engaged in the performance of his duties (Cal. Pen. Code §§ 187, 664(e)); (3) four counts of second degree robbery with personal use of a firearm (Cal. Pen. Code § 211); (4) three counts of second degree commercial burglary (Cal. Pen. Code § 459); (5) conspiracy to commit robbery (Cal. Pen. Code § 182(a)(1)); (6) unlawfully taking or driving a vehicle (Cal. Veh. Code § 10851(a); and (7) receiving a stolen vehicle (Cal. Pen. Code § 496(a). (Doc. 20, Lodged Documents ("LD") 4, p. 3).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District ("5th DCA"), which, in an unpublished decision, struck a special allegation connected to the attempted murder conviction due to instructional error, vacated the trial court's sentence of life with the possibility of parole, and affirmed Petitioner's conviction in all other respects. (LD 4). Subsequently, Petitioner filed a petition for review in the California Supreme Court, which was denied on September 15, 2009. (LD 6).

On February 25, 2010, Petitioner filed the instant petition. (Doc. 1). Respondent's answer was filed on May 20, 2010. (Doc. 19). On June 30, 2010, Petitioner filed his Traverse. (Doc. 23).

Respondent concedes that all grounds for relief in the petition have been fully exhausted. (Doc. 19, p. 7).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:

May 14, 2002-Robbery/Burglary of Fashion For All (Counts 9 & 10)

On May 14, 2002, Maria Toscano was working at Fashion For All, a clothing store in Porterville. She was helping Patricia Briseno and her sisters pick out prom dresses. Two men walked into the store and looked at shirts. Briseno thought it was strange to have men in a store that primarily carried party clothes for young women.

The two men walked to the counter and indicated they were going to buy a shirt. Toscano opened the register and one man produced a black semiautomatic handgun and pointed it at her. Toscano was frightened, and she raised her arms and screamed. She told the gunman to take all the money. The other man lifted his shirt and revealed he also had a black semiautomatic handgun. Briseno, who was in the dressing room, heard Toscano scream and walked out of the dressing room. Briseno saw the men pointing guns at Toscano and taking money out of the register. The two men left the store with the money.

Toscano described one gunman as Hispanic, between 20 to 25 years old, with a thin build, wearing a black baseball cap and gray baggy pants. The other gunman was white, in his 20's, with a medium build and blue eyes, and he was wearing a long-sleeve blue and white plaidshirt, and blue pants with the leg cuffs rolled up.

Toscano and Briseno were separately shown photographic lineups which included pictures of Landois and defendant. Toscano picked out Landois as possibly one of the gunman, but said he looked thinner in person than in the photograph. Briseno selected Landois as strongly looking like one of the gunmen. Both Toscano and Briseno positively identified defendant as the other gunman, and Briseno described defendant as the gunman with the blue eyes.

Based on this incident, defendant was charged and convicted of count 9, second degree robbery of Toscano and Fashion For All [ ], with the special allegation that he personally used a firearm [ ]; and count 10, second degree commercial burglary of Fashion For All [ ].²

May 16, 2002-The Stolen Dodge Van (Counts 11 & 12)

On the morning of May 16, 2002, Aurelio Ramos drove his 1987 gray Dodge van to work and parked at the government plaza in Visalia. When he left for lunch, he discovered his van had been stolen from the parking lot.

Just after 11:00 a.m., Jeff Jones and his wife were pulling into the Bank of Sierra parking lot in Visalia. A gray Dodge van was also in the bank's parking lot. Jones saw two men in the van; one man was wearing women's clothing and a blonde wig. The van kept pulling in and out of a parking space, it backed into someone else's vehicle, and it drove away. Jones followed the van, obtained the license plate number, took a picture of the vehicle with his digital camera, and lost the van in traffic.

Later that day, Ramos reviewed Jones's photograph and identified the vehicle as his stolen van. As we will discuss post, Landois was seen walking from that van about an hour later, shortly before a robbery, defendant was seen driving that van immediately after a robbery, and defendant was arrested the next day in possession of the van.

Defendant was charged and convicted of count 11, unlawfully taking or driving Ramos's van [ ], and count 12, receiving a stolen vehicle, the van [ ].

May 16, 2002-Robbery/Burglary of Clothestime (Counts 5 & 7)

The primary incident in this case occurred at a shopping center located near Highway 198 in Visalia, shortly after Ramos's van was stolen, and began with simultaneous robberies committed by defendant and Landois at two adjacent clothing stores: Clothestime and Susie's Deals (Susie's).

The shopping center consists of Vons, Longs, several restaurants and other stores. Susie's and Clothestime are located next to each other, between Vons and Longs, and a sidewalk runs in front of the stores and borders the parking lot. Carl's Jr. and Arby's restaurants are located in the front part of the parking lot.

Around noon on May 16, 2002, Wendy Steffan was working at Clothestime and Virginia Welch was looking at clothes. A man, later identified as defendant, entered the store by himself; he was wearing a dress and carrying a purse. Defendant walked through the racks and then approached Steffan at the counter. He pulled a handgun from his purse, ordered Welch to get on the floor, and told Steffan to give him the money or he would blow her away. Welch got on the floor and Steffan gave defendant about $200 from both registers. Defendant ordered Steffan to the floor, told Steffan and Welch he would come back and killthem if they got up, and he left the store.

Immediately after defendant left Clothestime, Steffan locked the door and called 911. Steffan described the gunman as wearing a tan floral print dress, a blonde wig, a straw hat, and he had blue eyes. Welch was so upset by the armed robbery that she fainted and was later taken by ambulance to the hospital.

At trial, Welch and Steffan identified defendant as the armed robber. Welch particularly remembered his "outstanding" eyes, and Steffan testified she would never forget his eyes.

Based on this incident, defendant was charged and convicted of count 5, second degree robbery of Steffan and Clothestime [ ], with the special allegation that he personally used a firearm [ ]; and count 7, second degree commercial burglary of Clothestime [ ].

May 16, 2002-Robbery/Burglary of Susie's Deals (Counts 3, 4, & 6)

Also around noon on May 16, 2002, several employees of Susie's were at the store for a district managers' meeting. Eva Martinez, one of the employees, looked out of the front window of Susie's into the shopping center's parking lot, and saw a man walking towards the store who was dressed as an old lady. The man, later identified as Carlos Landois, was by himself. Martinez thought he was walking from a dark-colored or gray van, which was parked next to other cars in the far portion of the parking lot.

Landois entered Susie's and looked around, and the employees were concerned because he was in a dress and acted suspicious. Landois declined offers of help and walked around the store.

Just a few seconds after Landois entered Susie's, Lindsay Atkinson, another store employee, looked out the front window and saw a man run past the store, and he was also wearing a dress and a wig. Atkinson subsequently identified this man as defendant. Atkinson watched as defendant ran into the parking lot, went to the back of an older-model van, and changed out of the dress to a T-shirt and boxer shorts. Atkinson saw defendant look directly towards Susie's and Clothestime. Defendant entered the back of the van and moved into the driver's seat.

Atkinson called out to another employee, Bonnie Johnson, and invited her to go outside for a cigarette. Atkinson whispered to Johnson that she just saw a guy in a dress run out of Clothestime and rip off his wig, she thought that man robbed the other store, and she thought Landois was going to rob them.

Just as Atkinson and Johnson headed out of Susie's, Atkinson saw Landois produce a weapon, but the two women kept walking and went outside. Landois did not stop the women from leaving the store. Instead, he walked to the counter, pulled a gun from his purse, and grabbed the clerk, Casey Gomez. He held the gun to Gomez's side and told her to give him the money from the register. Gomez was frightened and had trouble opening the register.

Melissa Ivey, another employee, walked out of the store's restroom, and saw Landois behind the counter but she did not notice the gun. She put her hand on his arm and said the he could not stand there. Landois

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