Ramirez v. Lewis

• Decision Date: 09 September 2013
• Docket Number: Case No.: 1:10-cv-01106-AWI-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: JESSE JOSE RAMIREZ, Petitioner, v. G. D. LEWIS, Respondent.

JESSE JOSE RAMIREZ, Petitioner, v. G. D. LEWIS, Respondent.

Case No.: 1:10-cv-01106-AWI-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: September 9, 2013

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 an aggregate sentence of 30 years, four months, plus 15 years-to-life pursuant to a judgment of the Superior Court of California, County of Madera ("Superior Court") for, inter alia, attempted murder of a police officer (Cal. Pen. Code § 187, 664(a)); assault on a peace officer with a firearm (Cal. Pen. Code § 245(d)); discharging a firearm at an inhabited dwelling (Cal. Pen. Code § 246); negligent discharge of a firearm (Cal. Pen. Code § 246.3); being a felon in possession of a firearm (Cal. Pen. Code § 1201(a)(1)); and felony child endangerment (Cal. Pen. Code § 273A(a)). (Clerk's Transcript ("CT") 106-114, 132). The jury also found true two special gang enhancements.(Id.).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District ("5^th DCA"). (Lodged Document ("LD") 1, 2, 3). On September 5, 2007, the 5^th DCA affirmed Petitioner's conviction. (Doc. 17, Exh. 1 ("Exh. 1")). In response to his petition for review, the California Supreme Court held that grossly negligent discharge of a firearm was a necessarily included offense of discharge of a firearm at an inhabited dwelling. (Doc. 17, Ex. 2). Accordingly, on remand, the 5^th DCA reversed three of Petitioner's convictions for grossly negligent discharge of a firearm. (Doc. 17, Ex. 3). Petitioner subsequently filed state habeas petitions at the trial and appellate level, all of which were denied. (LD 10; 12; 14).

On June 18, 2010, Petitioner filed the instant petition. (Doc. 1). Respondent's answer was filed on November 5, 2010. (Doc. 17). On April 6, 2011, Petitioner filed his Traverse. (Doc. 26). Respondent concedes that all grounds for relief in the petition have been fully exhausted. (Doc. 17, p. 13).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's partially published decision:

Several Chowchilla police officers responded to a call claiming that a man was holding a gun to a woman's head inside an apartment. Outside the apartment, Officer Brian Esteves yelled, "police department, occupants . . . please come out of the residence with your hands up." When no one responded, another officer, Sergeant David Noblett, knocked on a front window. Immediately, a shotgun blast came through the window on which the officer had knocked. The officer was not shot, but felt the compression of the blast, was sprinkled with the shattered glass, and fell backward. He got up and took cover behind a car. Between two and six more shots then came through the same window.

Defendant's wife emerged from the apartment carrying their five-year-old daughter. Officers asked her to come over to them, but she went back into the apartment with the child. A second volley of shotgun blasts- two or three shots- then came through the same window. Some additional shots came out a back window.

The officers again ordered the occupants of the apartment to come out. Defendant's wife again emerged, set the child on the ground, told her to go to the officers, and went back inside. The Chowchilla police chief was on the scene; he left his position of cover, picked up the child, and ran back.

A third volley of two to five shots followed. Defendant's wife emerged from the apartment a third time and told the officers that defendant had put his gun down. Defendant then came outwith his hands up. He followed the officers' order to lie on the ground and said. "I am your man, the gun' s on the couch." The officers arrested him. At some point during these events police threw or fired tear gas canisters into the apartment.

[¶]

At trial, officers recalled details of the shot that narrowly missed Sergeant Noblett. Jay Varney, the police chief, testified that the blinds or curtains were closed behind the window on which Noblett knocked and he could not see inside. Varney said the shots came "almost directly out of the window where [Noblett] was knocking." Noblett himself said, "[The] gunshots came out where I knocked and my face was about 12 inches to 18 inches from where the gunshots came out." Officer Esteves agreed that the shot "hit pretty much where [Noblett) knocked." He thought that the first volley of shots was directed at the officers because the broken glass flew toward them and the curtains came through the broken window in their direction.

There was some inconsistency in the police testimony about what Noblett did just before he knocked. Officer Esteves "believe[d]" Noblett "yelled police department" before knocking. Officer Mandrell also "believe[d] [Noblett] said police department." Noblett's own account, however, did not include this detail:

"Q Did anyone address the residen[ts] of that apartment in any way?

"A Officer Esteves made an announcement for the occupants to come outside and advised we were the police.

"Q Was there any reaction to that?

"A No.

"Q What, if anything, did you do once there's no reaction from the inside?

"A I moved to the southwest comer of the front window and knocked on the window. And before I did anything else, gunshots came out the front window."

Defendant testified that, although he fired through the window after hearing the police announce themselves and after hearing the knock, he was not shooting at the officers and did not intend to harm them. He claimed he heard Noblett's voice "coming from the corner of the house" rather than from the front and that "to my knowledge, I thought no one was behind that window." He could not see the officers because the blinds were closed. He said he "lost [his] cool" and only fired "[t]o back them off, back them away." Defendant's wife testified that defendant stood in the hallway and fired toward the front of the house, not aiming at anything in particular.

To explain what motivated his behavior, defendant testified that he was depressed. His plan was to use all his shells but one and then kill himself with the last. His answer when asked why he needed to fire many shots before killing himself was that he "wanted time to get [his] family out" and "didn't want to see [his] wife." His wife testified that she walked out of the apartment at his instruction.

Defendant testified about two causes of his depression. First, he had just been laid off from aconstruction company job after seven or eight months, the longest he had ever continuously been employed. He had moved with his family from Madera to Chowchilla to escape gang life and had obtained this job to start making an honest living; the loss of it caused him to feel inadequate as a provider. Second, he had a conflict with his wife that day. Two days earlier, which was defendant's birthday, he had left the house and stayed out for more than a day. Defendant's wife was angry and retaliated on the day of the incident by telling defendant she had been to the hospital and learned that her five month pregnancy had miscarried. Defendant believed his disappearance on his birthday and his wife's resulting emotional state had caused the miscarriage. In reality, defendant's wife had been to the hospital, but had not miscarried. Defendant learned the truth from his mother by telephone during the standoff.

The prosecution presented evidence that pellets from the shotgun blasts struck neighboring apartments. The address of defendant's apartment was 139 Kings Avenue. It was in an apartment complex called Kings Court. Kenny Bishop lived with his wife, mother-in-law, sister-in-law, and eight-month-old daughter in the same complex in an apartment of which the address was 129 Kings Avenue; it was described at trial as catty-corner from defendant's apartment. Bishop heard the police arrive and then heard at least eight gunshots. A projectile or slug, described by a police witness as a one-ounce piece of metal fired from a shotgun shell, entered Bishop's apartment. It pierced three walls inside the apartment and ricocheted off a medicine cabinet and a bathroom door. One witness said the bedroom where the daughter was sleeping at the time was "right in the pathway" of the projectile.

Humberto Hernandez testified that he lived in the apartment at 131 Kings Avenue with his wife and brother-in-law. This apartment was described by a police witness as "directly across from" defendant's apartment. Hernandez heard the shots. Pellets from one of them broke through a window of his apartment and struck the living room wall. The three occupants took cover in the bathroom. The brother-in-law was struck near his eyebrow by a shotgun pellet or a fragment of a shotgun pellet. He was not seriously injured.

According to a police witness, the apartment at 130 North Second Street was also damaged by one of the shotgun blasts. An officer testified that he evacuated the row of apartments in which this one was included, but did not get the names of those evacuated and did not know whether people were inside each individual apartment. The prosecution also presented evidence of damage from the shotgun blasts to the windows, front door, furniture, and appliances inside defendant's apartment. Nine spent buckshot shells, one spent slug shell, and four live shells were found on the floor.

The prosecution presented evidence that defendant had been a member of the Sureno gang Vatos Locos Mexicanos, which the police gang expert described as the most violent gang in Madera County. Defendant had gang tattoos on his hands. He had admitted to being a gang member on several occasions when he was taken into custody, beginning in 1996 or

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