Saldana v. McDonald

• Decision Date: 13 April 2013
• Docket Number: Case No.: 1:10-cv-01747-JLT
• Parties: HUGO E. SALDANA, Petitioner, v. M. D. McDONALD, Warden, et al., Respondents.
• Court: U.S. District Court — Eastern District of California

HUGO E. SALDANA, Petitioner,

v.M. D. McDONALD, Warden, et al., Respondents.

Case No.: 1:10-cv-01747-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated April 13, 2013

ORDER DENYING PETITION FOR WRIT OF

HABEAS CORPUS (Doc. 1)

ORDER DIRECTING CLERK OF COURT TO

ENTER JUDGMENT AND CLOSE FILE

ORDER DECLINING TO ISSUE CERTIFICATE

OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 27, 2010, Petitioner filed his written consent to the jurisdiction of the United States Magistrate Judge for all purposes. (Doc. 10). On October 7, 2010, Respondent filed his written consent to the jurisdiction of the United States Magistrate Judge for all purposes. (Doc. 14).

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of 15 years-to-life and a concurrent determinate sentence of three years, pursuant to a judgment of the Superior Court of California, County of Tulare (the "Superior Court") for attempted murder (Cal. Pen. Code §§ 187(a) and 664), and assault by meanslikely to create great bodily injury (Cal. Pen. Code § 245(a)(1)). (Lodged Documents ("LD") 2; Clerk's Transcript on Appeal ("CT") 450-453).¹ The jury also found special allegations to be true that Petitioner personally inflicted great bodily injury on the victim and that the offenses were committed to further the activity of a criminal street gang. (Cal. Pen. Code § 12022.7(a) and § 186.22(b)(1)(C), respectively). (Id.).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which was denied by that court on June 25, 2009, in an unpublished opinion. (LD 4). On July 24, 2009, Petitioner filed a petition for review in the California Supreme Court. (LD 5). On September 30, 2009, the state supreme court denied Petitioner's petition for review. (LD 6).

On September 10, 2010, Petitioner filed the instant petition. (Doc. 1). Respondent concedes that all grounds for relief in the petition have been fully exhausted. (Doc. 18, p. 8).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:

John and Perez attended the same high school in 2006. At that time, Perez was a member of Lindsay North Side (LNS), which is a Northern (Norteno) affiliated gang. John was not gang affiliated. John testified that Perez disliked him because he prevented Perez from beating up another student. Also, John was friends with Johnny Chavarria, a former Northern gang member who changed allegiances and committed acts for the Southern affiliated gang. People who did not like Chavarria took it out on John "[w]hen they blew up [John's] truck" in February. John ended his friendship with Chavarria in late April or early May because John recognized that "a lot of people disliked" Chavarria and he was concerned for his safety. Also, some people told him that he was "hanging around with the wrong people, and [John] knew it was [Chavarria]." Perez testified that he argued with John throughout the school year.

John testified that around 11:00 p.m. on the evening of June 9, he attended a party with his sister. He saw a group of six people at the party who he thought might be Nortenos, including Perez and Humberto Ochoa. Ochoa bumped into him and gave him a dirty look; Perez stared at him in a mean way. John was afraid that Perez and his friends were going to beat him up so he stayed by a friend, Cortay Taylor.

Around midnight, the party moved to another house on the same street. John and his sister walked toward the party's new location. When John reached the driveway, he saw a largegroup of males wearing red clothing walking up the street. John could tell that they were Nortenos. Perez and Garza were members of this group. John heard Garza ask Perez, "[I]s this the guy?" Perez nodded affirmatively. John realized that they were talking about him. The group's demeanor became more aggressive; its members looked angry and they clenched their fists. John attempted to walk away. Garza grabbed him and tried to hit him. John ducked. Several members of the group spread out and partially surrounded John.

John ran toward an orange grove. He looked back and saw Perez and another person chasing him. He heard a loud sound and saw a flash. He looked back a second time and saw another large flash. He fell to the ground and realized that he had been shot. John pulled out his cell phone and attempted to call his sister or the police but could not get reception. He saw three people, including appellant, running toward him. They all were holding knives. Appellant swung his knife at John. John put up his hands in self-defense and appellant stabbed him in the left forearm. John fell and landed in the roadway. Appellant stabbed John in the back and in the back of the head. A vehicle drove up and everyone ran away. Two people got out of the vehicle and assisted John. John is positive that appellant is the person who stabbed him.

Perez testified that he went to the party, which was also attended by Ochoa and Garza. He did not see appellant there. When he was walking to the new location of the party with Garza and Ochoa, he saw John. Garza tapped John on the shoulder. John turned around. Garza swung at him, but missed. John began running. Another group of five to six people began chasing John. Appellant and Ricardo Picasso were members of the group of people who chased John. Perez heard five to six gunshots. Appellant, Picasso and another person appeared to be fighting with John. Perez saw appellant at a friend's house a few days later. Appellant told Perez that he stabbed John and hoped John would die. Appellant showed Perez a little bloodstain that was on one of the shoes appellant was wearing.

Sara Anguiano testified that she saw appellant, Perez, Garza and Picasso at the party. Anguiano walked to the party's second location. She saw appellant, Garza and Picasso surround John. She was about 12 to 15 feet away and could tell by their body language that they were angry. Perez was standing by her. Garza punched John, who fell to the ground. John got up and began running. She went around to the back of the house, gathered her friends and left the party.

Taylor testified that he remained outside the house where the party began. He heard gunshots and then he saw people running. Garza was one of the people who ran. He was holding something in his hand underneath the red jersey he was wearing. Taylor's sister saw Garza and seven or eight boys running. They were wearing red attire. Taylor and his sister got into their car and drove south. They stopped when they saw someone lying in the road. Taylor got out of the car and found John lying on his back. It appeared to Taylor that John had been shot in the belly and that his arm was cut. John told Taylor that Perez injured him.

John was taken to the hospital and treated.

John told police officers that Perez or "Congo" injured him. John testified that he did not initially mention appellant to the police because he was frantic and worried about his survival.

He was previously acquainted with appellant. He started thinking about a person with the first name of "Hugo" about four or five days after he was injured. John mentioned the name "Hugo" name to his family while discussing suspects. His family members suggested that Hugo's last name could be Gomez. John told the police that the person who stabbed him was named "Hugo Gomez." One of John's sisters examined a high school yearbook and determined that Hugo's last name was Saldana, not Gomez. She called a police detective and gave him this information. After receiving this information, a photographic lineup including appellant was created and John identified appellant as the person who stabbed him.

A Lindsay police officer testified that he contacted appellant in April 2003. Appellant stated that he was not an active gang member but that the gang lifestyle was attractive to him. Another Lindsay police officer arrested appellant and Picasso in April 2006. Appellant said that he had a Northern association and Picasso said that he was a Northern affiliate.

Lindsay Police Department Officer Jose Dominguez was in charge of the department's gang unit. LNS is a Norteno subset; it is the predominate gang in Lindsay. Southern gangs were disliked in Lindsay and their members had been targeted by LNS members. He opined that in June 2006 Perez was an associate of LNS and was attempting to gain membership. Picasso was an LNS member and Ochoa was an associate of LNS. He was not sure if appellant was an LNS member.

Tulare County Sheriff's Department Detective Steve Sanchez testified as a gang expert. He opined that appellant, Picasso and Garza were LNS members. Perez was an LNS member on June 9 but was now a gang dropout. Sanchez testified about two predicate criminal acts committed by LNS members and testified that the primary activities of Northern gangs in Tulare County are homicide, attempted murder, drive-by shootings and assault with a deadly weapon. Sanchez opined that the charged offenses were committed to benefit LNS.

Appellant presented three character witnesses who testified that he was not a violent person.

Dr. Joe Lopez testified as a defense gang expert. He opined that appellant associated with gang members but was not a gang member. The attack on John could have been gang related but it also could have been motivated by other factors.

(LD 4, pp. 3-7).

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as...