Lee v. Frauenheim

• Decision Date: 09 May 2017
• Docket Number: No. 1:15-cv-01774-LJO-JLT (HC),1:15-cv-01774-LJO-JLT (HC)
• Parties: DAVID LEE, JR., Petitioner, v. SCOTT FRAUENHEIM, Respondent.
• Court: U.S. District Court — Eastern District of California

DAVID LEE, JR., Petitioner, v. SCOTT FRAUENHEIM, Respondent.

No. 1:15-cv-01774-LJO-JLT (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

May 9, 2017

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[TWENTY-ONE DAY OBJECTION DEADLINE]

Petitioner, along with co-defendants Corey Johnson and Joseph Dixon, were convicted for multiple murders and attempted murders committed in 2007 while participating in a criminal street gang in Bakersfield, California. Petitioner brings this habeas petition raising numerous claimed violations of his constitutional rights. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I. PROCEDURAL HISTORY

Petitioner was convicted in the Kern County Superior Court on March 20, 2009, of:

• Count 1: March 21, 2007, attempted murder of Edwin McGowan, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 664, 12022.53(d), (e)(1)).

• Count 2: April 19, 2007, premeditated murder of James Wallace, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 190.2(a)(3), (22), 12022.53(d), (e)(1)).

• Count three: April 19, 2007, premeditated murder of Vanessa Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 190.2(a)(3), (22), 12022.53(d), (e)(1)).

• Count four: April 19, 2007, premeditated murder of Baby Boy Alcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and constituting one of multiple murders (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 190.2(a)(3), (22), 12022.53(d), (e)(1)).

• Count five: April 19, 2007, attempted murder of Anthony Lyons, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 664, 12022.53(d), (e)(1)).

• Count Seven: August 11, 2007, attempted murder of Adrian Bonner, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 187(a), 664, 12022.53(d), (e)(1)).

• Count eight: August 11, 2007, discharge of a firearm at an occupied vehicle, involving the personal discharge of a firearm proximately causing great bodily injury or death, and committed for the benefit of a criminal street gang (Cal. Penal Code §§ 186.22(b)(1)(C), 246, 12022.53(d), (e)(1)).

• Count nine: March 2, 2007 - August 22, 2007, conspiracy to violate any or all of sections 186.22(a), 187, 211, and 245(a)(2), committed for the benefit of acriminal street gang (Cal. Penal Code §§ 182(a)(1), 186.22(b)(1)(C).

• Count Eleven: March 2, 2007 - August 22, 2007, active participation in a criminal street gang (Cal. Penal Code § 186.22(a)).

See Pet. at 1; People v. Johnson, No. F057736, 2013 WL 5366390, at *1-2 (Cal. Ct. App. 2013). In addition, special circumstance and enhancement allegations were found to be true. Id. On May 1, 2009, Petitioner was sentenced to 3 consecutive life terms without possibility of parole, plus 196 years. Pet. at 1.

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. On April 26, 2012, the appellate court reversed the conviction for conspiracy and noted several sentencing errors, but otherwise affirmed the conviction. Pet. at 2. Both Petitioner and Respondent sought review by the California Supreme Court. Petitioner's petition for review was summarily denied, however, the California Supreme Court granted Respondent's petition for review. Id. On July 18, 2013, the California reversed the Court of Appeal's decision regarding elements of the criminal gang participation enhancements. People v. Johnson, 57 Cal.4th 250 (2013). On September 25, 2013, the Court of Appeal issued a revised and amended opinion in light of the reversal from the California Supreme Court. Johnson, 2013 WL 5366390.

Petitioner also filed several petitions for writ of habeas corpus in the state courts. On August 5, 2014, he filed a habeas petition in the Kern County Superior Court. See Resp't's Answer, Ex. C. The Kern County Superior Court denied the petition in a reasoned decision. Id. He filed a second habeas petition in the Kern County Superior Court on December 12, 2014. See Resp't's Answer, Ex. D. The petition was rejected on March 16, 2015, for raising issues previously denied. Id. Petitioner then filed a habeas petition in the Fifth DCA on March 12, 2015, and the petition was summarily denied on July 10, 2015. See Resp't's Answer, Ex. E. Finally, he filed a habeas petition in the California Supreme Court which was summarily denied on November 10, 2015. See Resp't's Answer, Ex. F.

On November 24, 2015, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1.) Respondent filed an answer on May 16, 2016. (Doc. No. 27.) Petitioner filed a traverse to Respondent's answer on July 28, 2016. (Doc. No. 45.)

II. FACTUAL BACKGROUND

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

I. Prosecution Evidence

Events Surrounding March 21, 2007

Early on the morning of March 20, 2007, someone shot Venesta Grinnage's vehicle, which was parked in front of her home in the 4300 block of Deborah Street in Bakersfield. [FN4] Grinnage's son, Daniel Davis, frequented the house, although he did not live there. Multiple shell casings from three different semiautomatic firearms were found in the street. Although no suspects could be developed, a neighbor reported seeing a burgundy Honda drive slowly by shortly after 3:30 a.m. and again about 15 minutes later. The car had tinted windows and she could not see inside it. About 4:00 a.m., she heard what sounded like numerous gunshots.

[FN4]: All dates are in the year 2007 unless otherwise stated.

Some of the law enforcement officers who testified had received promotions or retired by the time of trial. To the extent possible, we refer to them by the titles they had at the time of events.

A number of peripheral actors in the case were regularly referred to at trial by their nicknames or monikers. For the most part, we use the same appellations for the sake of clarity.

Last, exact addresses were given at trial.

Just after midnight on March 21, Bakersfield Police Officers Shaff and Williamson, both members of the police department's Special Enforcement Unit (also known as SEU or the gang unit) were dispatched to an address on Myrtle Street in response to a call in which the reporting party said he had been shot at and his vehicle had been hit with bullets. Upon arrival, Shaff contacted Lee, who reported he had been standing by his vehicle in front of a residence in the 800 block of Deanna Way, talking with some friends, when an older silver or green Jeep drove by and shots were fired at him and his friends. Lee said the incident occurred about half an hour before he called the police, and that he had left the area and gone home. Shaff noted that Lee seemed unusually vague in terms of information he was giving. For instance, he would not identify the friends who had been present, and he seemed very hesitant when Shaff asked for specifics about the other vehicle and its occupants.

There were what appeared to be bullet holes in Lee's vehicle, a 2000 Chevrolet Tahoe that belonged to his father. Shell casings and bullet fragments from at least one gun were found in the 800 block of Deanna Way, where Lee said the shooting had occurred.

As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEUofficers as an area that was controlled by the Bloods criminal street gang, a group that was associated with the color red. The Country Boy Crips, who were associated with the color powder blue, were active rivals of the Bloods at the time. The Bloods had somewhat of an alliance with the Westside Crips, and were not actively quarrelling with the Eastside Crips. The corner was a known narcotics location, with sales being made out of the apartment complex there. The territory of a local Hispanic gang, which also sold narcotics, began nearby.

Around 6:45 that evening, Edwin McGowan was talking to friends outside the apartments when he heard some shots. He tried to run, but fell, having been struck. He saw a male wearing a burgundy hoodie shooting a little gun over the top of a car. When McGowan fell, the person ran behind him and shot him two more times, then took off running. McGowan could see the eyes and upper nose of this person, who was not wearing a mask. McGowan denied ever having seen defendants.

Officer Meek interviewed McGowan in the emergency room. McGowan described the shooter as a tall, light-skinned African-American male, 17 to 21 years old, wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meek confirmed that McGowan was certain the race was African-American and not Hispanic. When asked, McGowan said he would be able to identify the person if he saw him. [FN5]

[FN5] McGowan denied telling Meek that a light-skinned African-American male shot him. Rather, he told Meek the shooter could have been Hispanic or "a bright-skinned" male. McGowan told the grand jury that the shooter was a very light-skinned person, but he could not tell his race. McGowan did not consider any of the defendants to be light-skinned. They all appeared to be African-American to him.

On October 4, Bakersfield Police Detective Darbee showed

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