Seriales v. Harrington, 1:09-cv-00355-BAM (HC)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtBarbara A. McAuliffe
Docket Number1:09-cv-00355-BAM (HC)
PartiesKEITH SERIALES, Petitioner, v. K. HARRINGTON, Respondent.
Decision Date01 February 2012

K. HARRINGTON, Respondent.

1:09-cv-00355-BAM (HC)


Dated: February 1, 2012


[Docs. 22, 38]


[Doc. 23]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

Appellant Keith John Seriales stands convicted, following a jury trial, of first degree murder with kidnap-murder, foreign object penetration-murder, and murder by torture special circumstances (Pen. Code, [N.1] §§ 187, subd. (a), 190.2, subd. (a)(17), (18); count 1); torture (§ 206, count 2); kidnapping (§ 207, subd. (a); count 3); sexual penetration with a foreign object, involving torture, kidnapping, and tying and binding (§§ 289, subd. (a), 667.61, subds (a), (d) & (e); count 4); sexual penetration with a foreign object while acting in concert,

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involving torture, kidnapping, and tying and binding (§§ 264.1, 289, subd. (a), 667.61, subds. (a), (d) & (e); count 5); and sexual penetration with a foreign object of a person under age 18 (§ 289, subd. (h); count 6). [N.2] As to each count, two vicarious arming allegations (§ 12022, subd. (a)(2)), one involving a nine-millimeter handgun and the other an AK-47 assault rifle, were found to be true. The prosecution sought the death penalty, but jurors determined the appropriate penalty to be life in prison without the possibility of parole. Following denial of his new trial motion, appellant was sentenced to a total unstayed term of life in prison without the possibility of parole plus 20 years. In this timely appeal, he raises a number of claims of trial and sentencing error. For the reasons that follow, we will affirm the convictions, but remand the matter for re-sentencing.
[N.1] All statutory references are to the Penal Code unless otherwise stated.
[N.2] Due to a clerical error, the verdict form for count 6 refers to a violation of subdivision (a) of section 289 (citation.)


Somewhere around 11:00 p.m. on January 24, 2001, Virginia Cabrera, who lived in rural Tulare County, heard two cars speed by, and her normally quiet dog started barking. The next morning, the bound, nude body of 17-year-old Eric Jones was found near Avenue 16 and Highway 43, less than a mile from Cabrera's residence. Ten 9-millimeter shell casings were located nearby, and five bullets were dug out of the ground underneath the body. There were bullet holes in Jones's back and a wooden stick protruding from his anus. Duct tape was wrapped around his face and head, and his hands and feet were taped together behind him. There were blue markings on his back. [N.3] An autopsy revealed nine entrance wounds to Jones's right back, with eight corresponding exit wounds to the chest. At least two of the entrance wounds showed evidence of tattooing, indicating very close-range shots. There was also a single gunshot entrance wound to the right cheek. Jones's face was bruised and abraded, and many of his teeth were broken or knocked free from their sockets. There was a superficial puncture wound on Jones's back that could have been made by a pointed blunt object such as a screwdriver or an ice pick. The skin of bruising extending six to eight inches into the body. Bruising of the rectum, as well as bruising and hemorrhage to the chest, indicated Jones was alive when the various wounds were inflicted. No injuries consistent with electrocution were noted; however, depending upon various factors, electrocution could have occurred without leaving physical evidence. The cause of death was exsanguination due to multiple gunshot wounds to the back. Death would have occurred within a few minutes.
[N.3] The prosecutor presented much of the evidence concerning the body's condition through photographs, rather than descriptive testimony.
Investigation focused on a group of Jones's acquaintances, who, like Jones, lived in or near Delano: Gerardo (Jerry) Zavala, who resided a few miles outside of town at a place called "the ranch"; appellant, who was 29 years old at the time and drove a white Jaguar; Jorge (George or Coce) Vidal, who was sometimes seen in

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appellant's company; 17-year-old Daniel Portugal; Juan Soto; his brother Gerardo Soto, who drove a green Intrepid; and Tyrone Ebaniz, who was then 15 or 16 years old.
Jones and Ebaniz were best friends, and they were together at the home of Antoinette Cota, Ebaniz's sister, the night Jones was murdered. Jones left alone, on foot, after dark. Ebaniz's whereabouts were unknown to his family until the next morning, when he returned to his grandmother's house, where he was living. The police contacted him that day.
The morning Jones's body was found, Vidal, the Sotos, and another person offered to burn the trash from inside the home of Juanita Zavala, a sister of Zavala who lived with him at the ranch. Juanita Zavala found the offer unusual. These individuals also had black bags with them. Patricia Mojica, another sister of Zavala who lived at the ranch with Gerardo Soto, recalled Vidal, the Soto brothers, Portugal, and appellant doing something in the backyard at the ranch around the time Jones's body was discovered. Around the time Jones was found murdered, Mojia saw the white Jaguar one night when just appellant and Vidal were there.
On January 25, appellant and his wife, Lupe Gonzalez, went to San Diego in the Jaguar and returned the next day. Gonzalez did not stay at their house on the night of January 26, because appellant called and told her to go to her brother's house. When she asked why, he would not say, but he seemed a little nervous.
On the evening of January 26, Vidal arrived at the Bakersfield residence of Cecilia Ramirez, whose husband was Vidal's cousin. Vidal said he had come to visit. He arrived in a white Jaguar. [N.4] The next day, he left and returned in the same Jaguar.
[N.4] Although Ramirez testified that the man driving the car was not in the courtroom, she previously had identified a photograph of [Petitioner] as that person.
Gerardo Zavala was arrested on January 27, 2001. There were several 55-gallon burn barrels behind his residence. On top of one were what appeared to be shoelace eyelets and brown leather that could have been from a belt.
Zavala was the godfather of Jose Jiminez's baby, and the two men also worked together part-time, doing auto painting. As a result, Jiminez spent time at Zavala's residence. Between the times Jones was in the news and Zavala's arrest, Jiminez was present in the shed in the back of Zavala's place when he overheard a conversation between appellant, Zavala, and Vidal. Jiminez did not recall whether either of the Soto brothers was present. Although he claimed at trial not to remember the conversation, he previously told the district attorney's investigator that he had a clear memory of what happened. He heard appellant say, "we finally got that nigger[.] Vidal then responded, "he won't be bothering us anymore[.]" appellant then told the others present that if they said anything different than what he said or told them to say, he was going to "stick a broom handle up their ass[.]" Jiminez told a different investigator that it was Vidal who made the first two remarks.
On January 27, 2001, authorities from Tulare and Kern Counties responded to Juan Soto's residence in Delano. Mail addressed to Gerardo Soto was found inside the residence, and a Dodge Intrepid registered to him was parked in the

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garage. Ebaniz's, Portugal's, and Juan Soto's fingerprints were found on the outside of the car.
Bloodstains and white residue that appeared to be detergent wipings were found on the garage floor. Shoe tracks were found in the bloodstains, which, DNA analysis showed, belonged to Jones. Near a washing machine in the garage was a bleach bottle with a pair of scissors inside. Jones's blood was found on the scissors. Also found inside the garage was a squeegee head without a handle. Pieces of black electrical tape, that appeared to have been torn from the roll, were found in various locations in the garage. A piece of duct tape was found on the ground by the washer, and a number of beer cans were found inside the garage and in the side yard of the residence. Vidal's and Gerardo Soto's fingerprints were found on some of the cans.
That same day, appellant was arrested and subsequently gave a statement to Sergeant Skiles, which is described in more detail, post. When his white Jaguar was searched, newspapers from Fresno and Bakersfield, dated January 26, 2001, were found inside. On the front page of the Fresno paper was an article about Jones's death.
The day following his arrest, appellant directed Skiles to the location in Bakersfield at which he had last seen Vidal. Appellant expressed to Skiles that he was afraid. Vidal was arrested early that morning at Cecilia Ramirez's residence, the location shown to Skiles by appellant. Vidal subsequently directed Skiles to two

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