Martinez v. Cate, Case No. 1:11-cv-00572 AWI MJS (HC)

• Decision Date: 19 June 2014
• Docket Number: Case No. 1:11-cv-00572 AWI MJS (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: DANIEL J. MARTINEZ, Petitioner, v. MATTHEW CATE, Respondent.

DANIEL J. MARTINEZ, Petitioner,
v.
MATTHEW CATE, Respondent.

Case No. 1:11-cv-00572 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: June 19, 2014

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Craig S. Meyers of the office of the California Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Stanislaus, following his conviction by jury trial on May 6, 2008, of second degree murder, participation in a criminal street gang, and other charges. (Clerk's Tr. at 506-08.) On June 30, 2008, Petitioner was sentenced to an indeterminate term of forty years to life in state prison. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

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District on February 24, 2009. (Lodged Doc. 10.) The appeal was denied on December 18, 2009. (Lodged Doc. 15.) On January 15, 2010, Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 16.) The petition was summarily denied on March 24, 2010. (Lodged Doc. 17.)

On March 22, 2010, Petitioner filed a petition for writ of habeas corpus with the Stanislaus County Superior Court. (Lodged Doc. 18.) The petition was dismissed by way of a reasoned opinion on the same date. (Lodged Doc. 19.) Petitioner proceeded to file petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. Both petitions were summarily dismissed. (See Lodged Docs. 20-23.)

Petitioner filed his federal habeas petition on April 7, 2011. (Pet., ECF No. 1.) The petition raised seven different claims for relief, listed as follows:

1.) Petitioner was denied his right to Due Process and a fair trial when the court allowed inadmissible gang evidence;
2.) The jury was inadequately instructed with CALCRIM No. 1400;
3.) The police misled Petitioner on his right to counsel, rendering his Miranda warnings ineffective;
4.) Petitioner was denied his right to confrontation when the pathologist testified;
5.) Petitioner was denied his right to confrontation when the trial court excluded evidence of Sandoval's sentence;
6.) Petitioner was denied his right to Due Process and a fair trial due to the prosecution arguing that Petitioner was responsible for gang tagging, and;
7.) Petitioner was denied his right to Due Process and a fair and impartial jury by the trial court's failure to properly instruct the jury on the elements of second degree murder.

(Pet. at 4-7, ECF No. 1.)

Respondent filed an answer to the petition on September 25, 2012, and Petitioner filed a traverse on November 28, 2012. (Answer & Traverse, ECF Nos. 21, 25.) The matter stands ready for adjudication.

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II. STATEMENT OF THE FACTS¹

A. Factual and Procedural Background

As of December 8, 2005, Kristian Sandoval had been residing at 1309 Alamo Street, Modesto, for approximately four months. The neighborhood was "gang infested," and included both residents claiming Norteno membership and those claiming Sureno membership.[FN4] Sandoval became acquainted with the mother of the Garcia family, which lived across the street at 1310 Alamo. Two of her sons, who were about 17 or 18 years old, were Surenos. They bragged about their gang involvement to Sandoval, and one-Jefte Garcia-showed him the San Diego tattoo on his back. [FN5]

FN4. From what Sandoval knew, the block on which he lived was run mostly by Northerners, but the whole neighborhood was basically a Sureno neighborhood. The area was particularly dominated by the South Side Trece gang, a fairly large set of Surenos.
FN5. For the sake of clarity, the brothers-Jefte and Jair Garcia-will be referred to by their first names. No disrespect is intended.

Martinez lived two doors down from Sandoval. Sandoval first met him about two weeks after moving to 1309 Alamo, and they became good acquaintances. Sandoval saw Martinez "hanging out" with Lopez every day. Martinez and Lopez often wore red items of clothing, and they claimed Norteno.
Around 6:00 p.m. on December 8, Sandoval was inside his house with his friend, Lounny Manivong. They were in the kitchen when appellants knocked on Sandoval's door. Referring to the Garcia brothers, one said that the guys were over there, that something was going to happen, and that they had gone and gotten a gun or something like that. Sandoval did not hear any commotion, but Martinez asked him for "the gauge." Sandoval knew him to be referring to the pump-action, sawed-off shotgun appellants had left at Sandoval's house approximately two days earlier. Sandoval knew the gun was loaded; while appellants were showing it to him when they first brought it over, someone had put shells into it.
Sandoval retrieved the firearm, unwrapped it, and handed it to Lopez, who was standing right next to Martinez. Sandoval still did not hear any commotion outside, but warned that he did not want anything stupid happening in front of his house. Appellants then walked down the driveway. Lopez put the gun behind his back, under his sweatshirt.
As appellants walked down the driveway with Sandoval and Manivong following, they started exchanging words with the Garcia

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brothers, who were across the street on the sidewalk in front of their house. One of the Garcias-Sandoval believed it was Jefte-was accusing appellants of having tagged "YGL" on their sidewalk. [FN6] His tone of voice was angry. Martinez responded with an obscenity and forcefully denied that he or Lopez had done it.

FN6. "YGL" stands for "Young Gangster Locos" (also sometimes shown as "Young Gangsta Locos" in the reporter's transcript). The letters were painted facing toward the Garcia residence, so that someone going outside would read them.

Appellants stopped about halfway down the driveway, next to Manivong's car. The exchange between appellants and the Garcia brothers lasted approximately two to three minutes, during which time Lopez was just holding the shotgun behind his back.
Sandoval told the Garcia brothers to get back in their house and not be little kids, and he told appellants to take "their shit" somewhere else, but things escalated. Jefte was extremely angry. He walked into the middle of the street, took off his shirt, and started saying he was a grown man and all tatted up. He turned the "SD" tattoo on his back toward appellants, Sandoval and Manivong, and said "'this is San Diego'" or something, and something Surenos. He pointed at his back and also held up a blue San Diego hat. Sandoval considered this a gang challenge or gang call-out. He saw no weapons on or about the person of either Jefte or Jair. It appeared to him that Jefte wanted to have a fist fight.
Martinez yelled back his gang set, saying, "'This is YGL.'" Jair, who was standing behind Jefte, said, "'I'll peel your guys' cap back,'" meaning he was going to shoot the other group's way or shoot somebody. Sandoval interpreted the statement as a death threat against everyone in the group by Sandoval's house. Jair, who had on a shirt, reached one hand behind his back. Lopez pulled out the shotgun from under his sweatshirt and pointed it forward. Martinez told Lopez, "'Just do it.'" Seconds later, which was a matter of seconds after Jair had made the verbal threat, Sandoval heard a single gunshot from Lopez's direction. By this time, Lopez was outside Sandoval's fence, adjacent to the mailbox in front of the sidewalk. Everyone ran; Sandoval told Manivong to get out of there, then Sandoval ran back inside his house. He did not know anybody had been shot at this point, but when he looked out, he saw a person he believed to be Jair, squatting down inside the fence in the middle of the Garcia yard and talking on his phone. Sandoval could not see Jefte's body, because it was dark.
Sandoval went up into his attic. He did not call 911. The SWAT team extracted him about an hour later.
Portions of Manivong's account of events differed from Sandoval's version. Manivong had been present at Sandoval's house on several occasions when one or both appellants were there. Sometimes, Lopez would talk about how some of the neighbors were "scraps." Manivong understood this to be a derogatory term for Surenos. A couple of weeks before the shooting, Manivong was at Sandoval's house when Sandoval produced what appeared to be the weapon subsequently fired by Lopez. Sandoval said he was using it for protection.

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Manivong arrived at Sandoval's house between 5:00 and 6:00 p.m. on December 8, and he and Sandoval smoked some marijuana. Manivong smoked half a blunt, which is a cigar filled with marijuana. He described himself as being only a little high.
After appellants came to the door, Manivong walked out of the house before Sandoval. When Sandoval came outside, he was carrying some sort of bag over his shoulder. Manivong could not tell what it was and did not see what Sandoval did with it.
The only words Manivong heard spoken by Jair were at the outset. [FN7] When Manivong walked out of the house, Jair was the first one to talk about the graffiti and disrespect. Manivong saw no weapons about his person, nor did he ever hear any threats to shoot,

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