Pack v. Peery

Decision Date07 September 2016
Docket NumberNo. 1:13-cv-00585-DAD-SKO HC,1:13-cv-00585-DAD-SKO HC
CourtU.S. District Court — Eastern District of California
PartiesSTEVEN ANTHONY PACK, Petitioner, v. SUZANNE M. PEERY, Acting Warden, California Correctional Facility, Susanville, California, Respondent.

Petitioner Steven Anthony Pack is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges five grounds for habeas relief: (1) denial of the new trial motion violated due process; (2) jury instructions on aiding and abetting violated due process and the Sixth Amendment; (3) the erroneous imminent peril jury instruction misstated applicable law; (4) insufficient evidence of murder violated due process; and (5) the prosecutor's Doyle1 error violated due process. Having reviewed the record as a whole and applicable law, the undersigned recommends that the Court deny the habeas petition.

I. Factual Background2
A. General Information

The incident giving rise to Petitioner's conviction occurred on August 18, 2007, when two groups of men encountered each other in a liquor store parking lot in which taco trucks gathered.After having purchased food at a white taco truck, Petitioner, and codefendants Nicholas Castenada and Jose Barajas, Jr., encountered another group (the "soccer group"3), which was on its way home from an evening spent partying and dancing. Petitioner and the co-defendants addressed the soccer group with various insults including the term "scrap," a derogatory reference to members of the Sureño street gang. When a verbal argument ensued, Castenada pulled a gun from his waistband, and a member of the soccer group attempted to calm things down, characterizing the group members as "paisas" and explaining that they did not "bang."

The soccer group withdrew toward a black taco truck, and Petitioner, Castenada, and Barajas got into a white Honda Civic. Castenada backed the Civic slowly past the group at the black truck; Petitioner, standing in the open front passenger door, stated, "We got you"; and Barajas fired a 22-caliber revolver through the window of the back seat into the soccer group. Shot in the head, Kevin Argueta fell to the ground, having incurred a fatal wound.4

The Civic sped away. Garcia and Lopez gave chase in Garcia's green Honda. When the green Honda came within 37 feet of the white Civic, Barajas opened fire. Garcia evaded the gunfire and ultimately returned to the taco truck.

On August 22, 2007, Petitioner was arrested pursuant to a warrant. He initially identified himself to officers as his brother, Michael Pack.5 He also told police a false story about the other two people in the car. Barajas turned himself in after hearing a news report naming him as a suspect. Castaneda was arrested August 29, 2007.

/// The white Honda Civic, which belonged to Castenada, was located in a garage with its tires and wheels removed. Police found a live .22 caliber cartridge under the front passenger floor mat and a spent .22 caliber shell casing under the front passenger seat.

B. Gang Expert Testimony

Detective Francisco Soria testified as a gang expert. Previous testimony indicated that Castenada had claimed to be a Norteno gang member at the age of fourteen. Soria explained his reasons for concluding that all three co-defendants were Nortenos. He opined that the shooting was intended to benefit the Nortenos by punishing the victims for not backing down when confronted. Nothing indicated that Argueta or any member of the soccer group was a member or associate of a gang.

C. Defense

Each of the defendants denied belonging to a gang. According to the defendants, they had been watching football before going to the taco truck to get something to eat. When they arrived, Petitioner recognized two individuals in the other group (Daniel and Miguel Oseguera), whose father had been involved in an auto accident with a member of the Barajas family. He called out, "When are you going to pay my boy his money?" but no one answered him.

At trial, the defendants testified that the soccer group had been the aggressors, stating that after the defendants bought their food and headed for the car, the Oseguera brothers and Amezcua approached them and began yelling. The other five members of the soccer group approached from another direction to surround the defendants. Castenada testified that when he realized that the other group was acting aggressively, he pulled out his .22 caliber revolver and told them to get back. Defendants then got into their car and began to drive away. Barajas fired two shots. He testified that he fired the first shot into the ground to prove that the gun was real,

///and then, after someone made a move "like he was going to lift his shirt up" to get a weapon, Barajas fired the second shot, which struck Argueta.

D. Videotape of Incident

The incident was captured by a security camera in front of Corona Liquors. When shown the video tape at trial, various witnesses identified themselves and others, and explained what was happening. Petitioner and the co-defendants were already at the white taco truck, opposite Corona Liquors, when Miguel and Daniel Oseguera and Julio Amezcua arrived at 12:33:386 and parked just south of the white taco truck, across from the black taco truck parked to the south of Corona Liquors. At 12:34:49, Petitioner stepped away from the white truck and turned to look toward the black truck or Castenada's car, which was parked several spaces south of the black truck. Defendants left the white truck and began walking toward the black truck or Castenada's car at 12:35:44, while Amezcua and the Oseguera brothers stood in front of the black truck, waiting to place their order. At 12:35:50, Garcia's green Honda, carrying the other members of the soccer group, arrived from the north, drove past both taco trucks and parked in a space to the south of the black truck.

The prosecutor pinpointed 12:36:24 as the start of the argument. By that time, the defendants were in front of the black truck, and the Osegueras and Amezcua had stepped away from the truck toward them. By 12:36:45, other people in the vicinity showed awareness of the argument.

At 12:37:50, the back-up lights on Castenada's car appeared as it backed out of its parking space to a point roughly even with the soccer group, which was standing near a white van parked immediately to the south of the black truck. The first shot was fired at 12:38:00, as evidenced by a bystander dropping down to shelter behind his pick-up truck, which was parked in front ofCorona Liquors. By 12:38:08, the bystander had stood up, and others were fleeing the scene. Cars were able to travel the aisle between the taco trucks toward exits at the north and south of the parking lot. At 12:38:17, the bystander again dropped behind his pick-up truck as one or more additional shots were fired. (Although not visible on the video, at this point, Argueta was struck by a shot and fell dead behind the white van.) Stanislaus County Sheriff's Deputies Andrew Lawder and Cory Brown arrived at the scene at 12:42:13.

II. Procedural History

Petitioner, Castenada, and Barajas were charged with one count of murder (Cal. Penal Code § 187), nine counts of attempted murder (Cal. Penal Code §§ 187 and 664), two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), one count of discharge of a firearm (Cal. Penal Code § 246), participation in a street gang (Cal. Penal Code § 186.22(a)), and various enhancements. Claiming that the prosecutor had failed to establish probable cause, Petitioner moved to set aside the information pursuant to California Penal Code § 995. Following a hearing in January and February 2009, the trial court (Stanislaus County Superior Court) found insufficient evidence that (1) defendants aided, abetted, or participated in a criminal street gang; (2) the charged incident was gang related; and (3) the predicate acts were sufficient to support a reasonable suspicion of active gang participation. With regard to Petitioner, the trial court dismissed count 14, charging participation in a criminal street gang; enhancements alleged under California Penal Code § 12022.53(e)(1) in counts 1-10; and enhancements alleged pursuant to California Penal Code § 186.22(b) in counts 1-13.

On April 10, 2009, Respondent filed a petition for writ of mandate. On May 28, 2009, the Court of Appeal issued the writ of mandate and directed the Superior Court to deny Petitioner's § 995 motion. People v. Superior Court of Stanislaus County (Steven Anthony Pack), 2009 WL 1497468 at 2 (Cal. Ct. App. May 28, 2009) (No. F057347).

During the course of 31 days in January and February 2010, Petitioner and the two co-defendants were tried jointly before a jury. Each defendant had his own counsel. At trial, Barajas, who had remained silent following his arrest, stated for the first time that he had shot from the white Civic into the soccer group at the taco truck.

On February 4, 2010, the jury found all three defendants guilty of second-degree murder, two counts of assault with a firearm, and negligent discharge of a firearm. Only Castenada was found guilty of active participation in a street gang. The jury found the defendants not guilty of two of the attempted murder counts, the count of intentionally shooting at an occupied vehicle, the gang enhancement appended to the murder charges, and gang participation. The jury deadlocked on the other gang enhancements and seven of the attempted murder counts. The trial court declared a mistrial on the attempted murder counts and struck the enhancements for which the jury reached no verdict.

On September 17, 2010, the trial court denied Petitioner's and Barajas' motions for a new trial. The Superior Court sentenced Petitioner to a term of 40 years to life in prison.

Petitioner appealed the convictions to the State Court of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT