Salinas v. Harrington

• Decision Date: 04 October 2011
• Docket Number: No. C 10-2084 SI (pr),C 10-2084 SI (pr)
• Parties: DAVID JACINTO SALINAS, Petitioner, v. KELLY HARRINGTON, Acting Warden, Respondent.
• Court: U.S. District Court — Northern District of California

DAVID JACINTO SALINAS, Petitioner,

v.KELLY HARRINGTON, Acting Warden, Respondent.

No. C 10-2084 SI (pr)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

DATED: October 4, 2011

ORDER DENYING HABEAS PETITION AND DENYING CERTIFICATE OF APPEALABILITY

INTRODUCTION

David Jacinto Salinas, a prisoner of the State of California, filed this habeas action under 28 U.S.C. § 2254 to challenge his 2007 conviction in the Santa Clara County Superior Court. This matter is now before the court for consideration of the merits of the pro se habeas petition. For the reasons discussed below, the petition is denied.

BACKGROUND

I. The Crimes

On February 10, 2006, Salinas and his co-defendant Manuel Louis Madril were charged by information with one count of the murder of Myra Aguirre (California Penal Code § 187;¹ count 1) during the commission or attempted commission of a robbery, two counts of second degree robbery of Andrew Satterwhite and Robert Conrad, respectively (§§ 211, 212.5; counts 2 and 3), and vehicle theft (Vehicle Code § 10851(a); count 4). As to the robberies and vehicle theft, the information further alleged a criminal street gang enhancement (§§ 186.22(b)(1)(c)).As to Salinas, the information alleged that he used a deadly weapon -- a bottle -- during the commission of one of the robberies in court 2 (§12022(b)(1)), and that, in connection with counts 1, 2 and 3, he had a prior serious felony conviction that also constituted as a strike (§§ 667(a), 1170.12, 1192.7(c)).

The California Court of Appeal set out the facts to be as follows:

The Trial Evidence

The Current Offenses

Andrew Satterwhite, who was 17 years old in October 2005, testified under a grant of immunity² that on the evening of October 8, 2005, he and Robert Conrad walked through Boggini Park on their way home from a friend's house. It was dark, but they could see a group of 10 to 20 men by the picnic tables in the park. One of the men asked them, "'Why are you coming up on us?'" Satterwhite responded, "'It's not like that.'" The man asked, "'What do you claim?'" Satterwhite thought that the man was asking him if he was in a gang, so he responded that he didn't claim anything. The group of men surrounded Satterwhite and Conrad and one of the men shook Satterwhite's hand and said "'It's Norte.'" The man then told Satterwhite and Conrad to empty their pockets and said "'It's Capitol Park.'"

A man hit Satterwhite in the left eye and in the mouth and broke a 40-ounce beer bottle over his head. His head started bleeding and he fell to the ground. While reaching towards his back waistband, the man said, "'Don't make me get the gun."' The man took off the Larry Bird Celtics jersey, the white T-shirt, and the white Nike shoes that Satterwhite was wearing. The group of men started running away so Satterwhite and Conrad ran in the opposite direction. Although Satterwhite saw a police car nearby, he did not run towards it because he wanted to go home. His parents reported the incident to the police.

Satterwhite went to the Regional Medical Center where he received six staples in his head and stitches on his right arm for cuts from the broken beer bottle. While he was at the hospital, he told officers that a man who hit him had "San Jo" tattooed on his neck. Officers brought Satterwhite's shoes and Conrad's Raiders jersey to Satterwhite and he identified them. Officers also showed him two men. Satterwhite thought that one of the men looked like the man who hithim with the beer bottle and then took his jersey.³ He was asked to, but could not, identify a man who at the time was lying on a hospital stretcher.

Conrad,⁴ who was 17 years old at the time of trial, testified that on October 8, 2005, while he and Satterwhite were walking through Boggini Park around 9:30 p.m. on their way home from a friend's house, they were stopped by a group of about 20 men. It was dark but at first the group seemed to be friendly and somebody shook Satterwhite's hand. The men then said, "'What's up,'" and had Conrad and Satterwhite sit down at a picnic table because the men did not know them. Conrad's black New York Yankees baseball cap was hit off his head and the men told Conrad and Satterwhite to empty their pockets. Conrad took a brush, a washcloth, and some papers and keys from his pockets.

The men told Satterwhite to take off his jersey. When Satterwhite did not comply, he was hit in the head with a bottle, thrown to the ground, and his jersey and shoes were taken off him. Somebody hit Conrad on the back of his head, slamming it onto the picnic table. Because of all of this, Conrad decided to do whatever the men asked him to do. He removed his Porter Raiders jersey. Somebody pulled his T-shirt, chain and "R" pendant off him, so he removed his earrings. When the group of men left them, Conrad and Satterwhite ran out of the park. They went to a friend's house and discussed the incident before going home. Conrad did not report the incident to the police.

San Jose Police officers Stanley Gaspar and Melinda O'Neil were dispatched to Boggini Park around 9:23 p.m. on October 8, 2005, due to a 911 report that there were 20 to 30 people in the park, that there might be fight, and that there were threats of a shooting. When the officers arrived around 9:26 p.m., Gaspar saw people running through the park and vehicles driving away in all directions, some with their headlights off. Gaspar and other officers contacted a group of six to eight people at the park and pat searched them for weapons. While O'Neil was assisting Gaspar, she was notified around 9:35 p.m. that there was a fatal accident involving a van at Quimby and Tully Roads. O'Neill left for the accident scene, where she interviewed witnesses. After Gaspar ensured himself that nobody in the park had a weapon and that nobody was hurt, he also responded to the accident scene. Officer Catherine Foley, who had been dispatched to Boggini Park at 9:27 p.m., left the park for the accident scene around the same time as Officer Gaspar.

Officers Kendra Spath, James Gonzalez and Michael Clark were dispatched to Boggini Park at 9:31 p.m. on October 8, 2005. While Officers Spath and Gonzalez were eastbound on Quimby Road, a blue minivan sped westbound past them with its headlights off. The dispatcher broadcast that a vehicle matching the description of the minivan had just been stolen. Spath reported that she had seen the minivan traveling westbound on Quimby Road, but she and Gonzalez did not attempt to follow the minivan. Before they arrivedat Boggini Park, Spath and Gonzalez were redirected to an injury accident at Tully and Alvin,⁵ so they turned around and headed westbound on Quimby. When they arrived at the intersection of Quimby and Tully,⁶ the blue minivan they had seen earlier was wrapped around a signal pole on the west side of the intersection. Spath reported the accident.

Officer Clark was eastbound on Tully Road on his way to Boggini Park when he was dispatched to an injury accident at Tully and Alvin. He turned around and headed westbound on Tully toward Alvin. However, when he reached Quimby, he saw a blue minivan wrapped around a pole and on fire. He had previously heard from dispatch that a blue minivan had been reported stolen. He reported the accident, including the license plate of the minivan. He then checked the minivan for any occupants and tried to put out the fire with his fire extinguisher, but was not able to put it out.

On the evening of October 8, 2005, Rigoberto Cardenas drove his blue Ford minivan to his sister-in-law's house on Castleton Drive near Quimby Road in San Jose. He parked in the driveway and left his keys in the ignition and the engine running when he went inside. The minivan was gone within a few minutes and he had not given anyone permission to take it. The theft was reported to 911. About 30 minutes later the police notified Cardenas that they had found the minivan. They called again around 2:00 or 3:00 a.m. the next day, at which time Cardenas went to the intersection of Tully and Quimby Roads where he found the minivan "smashed." Inside the minivan were several items that did not belong to Cardenas.

Around 9:30 p.m. on October 8, 2005, Quyen Tiet witnessed a collision at the intersection of Tully and Quimby Roads. Tiet was on Tully Road about one-half block from the intersection when a minivan sped past him. The minivan accelerated towards the intersection as the stoplight was turning red, entered the intersection on the red light, and hit the driver's side of a car. Tiet thought he saw four people get out of the minivan. He called 911.

Antonio Gomez and Liliana Baez were on Tully Road slowing down for the stoplight at Quimby Road when they witnessed the collision. When the light turned green for Quimby Road, a red Honda Civic started into the intersection. A minivan with its headlights off sped past Gomez and Baez, entered the intersection on the red light, hit the driver's side of the Honda, and then hit a pole. The Honda spun and came to rest between 80 and 110 feet away. Gomez and Baez saw two men get out of the driver's side of the minivan and run towards a shopping center. Gomez pulled over, got out of his car, and yelled at the men to stop. The two men stopped for a moment then continued on. Gomez and Baez saw a third man get out of the passenger side of the minivan. Gomez was able to stop the third man, who collapsed, and Gomez dragged the man over to the sidewalk. Gomez then checked on the two occupants of the Honda. He got no response from the woman driver; the male passenger drifted in and out of consciousness. Baez identified photos of Salinas and Joseph Vargas as twoof the men who got out of the minivan after the collision. Gomez identified a photo of Vargas as the man he stopped after he got out of the passenger side of the minivan, and a photo of Salinas as one of the two men who got out of the driver's side of the minivan and ran away.

Sandra Ramirez was with her son in a car on

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