Mata v. Sherman, Case No. 1:13-cv-01040 DAD MJS (HC)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtMichael J. Seng UNITED STATES MAGISTRATE JUDGE
PartiesISIDORO MATA, JR., Petitioner, v. STEWART SHERMAN, Warden, Respondent.
Docket NumberCase No. 1:13-cv-01040 DAD MJS (HC)
Decision Date22 April 2016

ISIDORO MATA, JR., Petitioner,
STEWART SHERMAN, Warden, Respondent.

Case No. 1:13-cv-01040 DAD MJS (HC)


April 22, 2016


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent, warden of California State Prison, Corcoran, is substituted as the proper named respondent under Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Caely E. Fallini of the office of the California Attorney General. The parties declined magistrate judge jurisdiction under 28 U.S.C. § 636(c). (ECF No. 11.)


Petitioner is in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Stanislaus. On March 5, 2010, Petitioner was convicted by a jury of first degree murder, two counts of attempted murder, shooting at an occupied building, shooting at a person from a motor vehicle,

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assault with a firearm, active participation in a criminal street gang, and numerous sentencing enhancements. (Clerk's Tr. at 1047-51.) On September 3, 2010, Petitioner was sentenced to an indeterminate term of 115 years to life. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on September 30, 2011. (Lodged Doc. 1.) On September 21, 2012, the appellate court affirmed the conviction. (Lodged Doc. 4.) The California Supreme Court summarily denied Petitioner's petition for review on December 19, 2012. (Lodged Docs. 5-6.)

Petitioner next sought collateral review of the petition by way of a petition for writ of habeas corpus filed with the California Supreme Court on February 21, 2013. (Lodged Doc. 7.) The petition was summarily denied on April 17, 2013. (Lodged Doc. 8.)

Petitioner filed his federal habeas petition on June 25, 2013. (Pet., ECF No. 1.) The petition raises six grounds for relief. (Id.) Petitioner asserts the following constitutional violations:

1) That the prosecutor engaged in misconduct by presenting a witness who falsely identified Petitioner;

2) That the trial court erred in allowing an accomplice's out of court statements into evidence;

3) That the prosecutor engaged in misconduct by presenting Andres Espara's allegedly false testimony;

4) That the court erred by admitting a sawed-off shotgun into evidence;

5) That the law enforcement officers violated his Miranda rights in taking his statement, and that the Court erred in allowing the testimony into evidence; and

6) Ineffective assistance of counsel.

Respondent filed an answer to the petition on September 5, 2013. (Answer, ECF No. 13.) Petitioner filed a traverse on October 23, 2013. (Traverse, ECF No. 19.)




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One evening in June 2006, Isidoro Mata (appellant) drove his car into a Modesto neighborhood and stopped in front of four different residences, while his front seat passenger, Angel Cabanillas (Angel), pointed and fired a rifle at various people, resulting in the death of one victim and injury to another. Angel's brother Pedro Cabanillas (Pedro) was riding in the backseat of appellant's car during the incident. At trial, the parties stipulated that Angel and Pedro were both documented members of the Sureño criminal street gang in Modesto known as South Side Trece (SST). A gang expert opined that appellant was also an active SST member and testified that the neighborhood where the shootings occurred was claimed by the rival Norteño gang known as Deep South Side Modesto (DSSM).

Following a jury trial, appellant was convicted of 11 offenses, including first degree murder (Pen. Code,[fn 1] § 187; count I), attempted murder (§§ 664, 187; counts II, III, & VII), shooting at an occupied building (§ 246; counts IV-VI), shooting at a person from a motor vehicle (§ 12034, subd. (c); count VIII), assault with a firearm (§ 245, subd. (a)(2); counts IX-X), and active participation in a criminal street gang (§ 186.22, subd. (a); count XI). The jury also found numerous sentence enhancement allegations to be true, including allegations the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)). Appellant was sentenced to prison for an aggregate term of 117 years to life.

FN1: Further statutory references are to the Penal Code unless otherwise specified.

On appeal, appellant contends: (1) the trial court erred by failing to give the jury accomplice instructions with respect to Angel's out-of-court statements about the SST gang, which he made to a police officer several months prior to the commission of the offenses in this case; (2) the trial court erred by allowing the prosecution's gang expert to testify about appellant's specific intent; (3) the trial court erred by admitting a blue sawed-off shotgun into evidence and sending it into the jury room during deliberations; (4) the prosecutor committed misconduct by eliciting false testimony from one of the victims, denying his membership in the rival DSSM gang; (5) appellant's trial counsel rendered ineffective assistance by failing to object to Angel's out-of-court statements on confrontation clause grounds; and (6) the trial court erred in its imposition of a restitution fine and direct victim restitution. We affirm.


The Prosecution

On June 10, 2006, around 6:00 p.m., members of the Marquez family,

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including a number of children, were in the front yard of their house on Montavenia Drive. Alicia Marquez was wearing a red shirt and sitting on a car parked in the driveway. A teal Honda Accord drove slowly by the house. Three Hispanic males with "bald heads" were in the car. Monica Marquez assumed the car's occupants were Sureños. Someone in the car made a gang sign of the number "13" with his hand. The Honda returned and stopped in front of the house. Angel pointed a rifle at Alicia and then at the others in the front yard. He also commented on Alicia's red shirt and cursed at her in Spanish.

After leaving the house on Montavenia Drive, the Honda stopped at a house two doors down on Parducci Drive. Esteban, who was known to associate with Sureños, approached the car and spoke with the Honda's occupants. Esteban's sister, Azalia Berumen, came out of the house and started hitting the Honda and arguing with Angel. Angel pointed a rifle at Berumen and said, "South Side." Then the Honda drove away. Shortly thereafter, witnesses heard gunshots which sounded like they came from Almaden Way, the street above Montavenia Drive and Parducci Drive.

The same evening, a large birthday party for Robert Alcazar was in progress at his house on Almaden Way. The party was attended by numerous adults and children, none of whom were known to be connected with any gang. Activities were set up in front of the house, including a basketball court and bounce house. Sometime around 6:00 p.m., the Honda drove slowly by Alcazar's house. Alcazar observed that there were three "bald" Hispanic males in the Honda. Angel leaned out of the window and made a "What's up?" gesture with his hands.

The Honda drove by and stopped in front of the house several more times. During these stops, Angel pointed his rifle at Johnny Silva, who was wearing a red and white San Francisco 49ers jersey. He also fired the rifle multiple times into the open garage of Alcazar's house, where partygoers were attempting to take cover. Alcazar's close friend, Manuel Rayas, was struck and collapsed.

Rayas died from a single gunshot wound to his chest. The bullet fragment extracted during Rayas's autopsy was consistent with a .22-caliber bullet. The "clean" shape of Rayas's wound indicated the bullet did not hit any other object before hitting his body.

Lisa Averell, a witness who attended the party on Almaden Way, identified Angel from a photograph as the shooter and identified appellant in court as the driver of the Honda.

Finally, around 6:10 p.m., the Honda car stopped at a house on Spokane Street, where Andres Esparza was standing in the driveway talking on a portable telephone. Esparza's father was also sitting outside the house. One of the car's occupants said, "We're scrapas." Esparza answered, "What do I have to do with [them]?" A rifle came out of the passenger window and was aimed at Esparza. Esparza threw himself down on the ground and was shot in the leg. The Honda then took off.

The parties stipulated to the following facts: At 6:11 p.m., on June 10, 2006, the first of a series of 911 calls was made to Stanislaus County emergency dispatch regarding the shooting on Almaden Way. At 6:14 p.m., a 911 call came in reporting the shooting on Spokane Street. At 6:23

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p.m., a Modesto Police Department patrol car reported that it was following a teal Honda. The Honda was followed until it was stopped at 6:27 p.m., by three police patrol cars. When the Honda was stopped it was being driven by appellant, Angel was the right front passenger, and Pedro was in the backseat. The Honda previously had been purchased for appellant by his father.

According to police testimony, at the time of the traffic stop, appellant, Angel, and Pedro all had shaved heads; Angel and appellant both wore white T-shirts, and Pedro wore a dark colored shirt.

Gang Evidence

Officer Pouv's Testimony

Modesto probation officer Ra Pouv, who participated in appellant's arrest on June 10, 2006, testified he knew appellant from previous contacts and had prepared field identification cards on him. On February 19, 2006, appellant told Officer Pouv that he was a member of the Sureño gang and, on April 1, 2006, told the officer he associated with the Sureño gang.

Officer Gumm's Testimony

Modesto police officer Robert Gumm testified regarding conversations he had with Angel prior to the commission of the current offenses. In late December 2005, Angel contacted Officer Gumm in

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