Serna v. Holbrook

• Decision Date: 11 January 2023
• Docket Number: 21-cv-02654-WHO
• Parties: NORBERTO SERNA, Plaintiff, v. DAVID HOLBROOK, et al., Defendants.
• Court: U.S. District Court — Northern District of California

NORBERTO SERNA, Plaintiff,
v.
DAVID HOLBROOK, et al., Defendants.

No. 21-cv-02654-WHO

United States District Court, N.D. California

January 11, 2023

ORDER DENYING WRIT OF HABEAS AND REQUEST FOR EVIDENTIARY HEARING RE: DKT. NOS. 1, 24

William H. Orrick United States District Judge

INTRODUCTION

Petitioner Norberto Serna seeks federal habeas relief from his state convictions on several grounds, including that there was insufficient evidence to support his convictions, he was insufficiently advised of his Miranda rights, and his trial counsel rendered ineffective assistance. None of his claims has merit. The petition is DENIED.

BACKGROUND

On February 6, 2011, Serna and two other men broke into Gary Wise's house, beat him, and robbed him of valuables stored in two safes. Serna was subsequently arrested and charged with 10 counts, including kidnapping to commit extortion, kidnapping to commit robbery, and torture. Serna, who was tried separately from his codefendants, was convicted by a Santa Clara Superior Court jury of all 10 counts.^[1] Serna was sentenced to life without the possibility of parole. He appealed, lost, sought a state writ of habeas corpus, and lost again. This federal habeas petition followed.

1

The California Court of Appeal summarized the facts of the crimes as follows:

On February 6, 2011, [Gary] Wise lived on Rucker Avenue in a house in an unincorporated area in Gilroy, California. The driveway between Wise's house and Rucker Avenue was approximately a quarter mile long. [Juvenal Angel] Reyes lived across the street from Wise

Serna knew Reyes. He and his son, Isaias Serna, sometimes worked for Reyes. Reyes told Serna that Wise was wealthy and they should rob him. Reyes introduced Serna to [Ernesto] Gonzales and [Juan Carlos] Fonseca and told the men that Wise had two safes inside his house. Serna, Isaias, Gonzales, and Fonseca met with Reyes to plan the burglary. The men devised a plan to watch Wise, wait for him to leave his house, and break into the house under the cover of darkness. Gonzales asked Isaias to watch Wise during the burglary

The day of the crime, Gonzales followed Wise to Wise's ex-wife's house. After Wise reached his destination Gonzales drove back, picked up Serna and Fonseca, and dropped them off at Wise's house. Serna and Fonseca broke into the house while Wise was away. Meanwhile, Gonzales drove back to Wise's ex-wife's house to continue his surveillance.

The objective of the crime was to steal the two safes inside Wise's home. Serna and Fonseca attempted to move the safes, but they were too heavy to be moved. Fonseca called Gonzales and told him they were unable to take the safes. Gonzales called Isaias and asked him to take over surveilling Wise at his ex-wife's house. Shortly thereafter, Gonzales joined Fonseca and Serna at Wise's house. Gonzales wore gloves and a mask, and was in possession of a semiautomatic handgun. Together, the three men again attempted to move the safes but were still unable to do so. In the meantime, they took several television sets. Sometime later, Isaias called Gonzales and told him that Wise was on his way back home.

Serna and Fonseca told Gonzales they should leave, but he refused. Gonzales told Serna to position himself at the door. Fonseca stood in the hallway and Gonzales stood on the other side. Serna armed himself with what he called a “children's bat,” an item that was described during the trial as a tire thumper. Gonzales and Fonseca picked up pool cues. Gonzales told Fonseca and Serna the plan was to hit Wise and tie him up.

When Wise returned home, he opened the front door to his house. Immediately, Serna, Gonzales, and Fonseca beat Wise. A pool cue used during the beating splintered in half during the assault. The tire thumper Serna used broke into several pieces when he hit Wise. At trial, Wise testified he was beaten inside the house. However, during Serna's interview with officers following his arrest, Serna said that when Wise fell from the front steps of his door outside . . . the men started beating him. While Wise lay on the ground, the men zip-tied his feet together, carried him inside the house into the kitchen past the room where Wise kept his two safes, and tied him to a kitchen chair. The kitchen was approximately 25 or 30 feet from the

2

front door. The men spoke to each other in Spanish, which Wise could not understand.

Afterwards, the three men picked the chair up with Wise in it and sat him in front of one of his two safes, which was approximately 20 feet away. One of the men placed a towel over Wise's head, obscuring his view. Wise already had trouble seeing out of one of his eyes due to the injuries he had sustained during the beating. Wise recalled that one of the men asked him for the combination to his black-colored safe and threatened his son if he refused. That man then put a gun inside Wise's mouth. Wise initially told the men he did not have the combination to the safe, because he did not want them to steal the items, which included guns, that were inside. Wise acceded to the men's demands after they threatened his son.

The men attempted to open the safe with the combination, but were unable to do so. Wise asked the men to untie him so he could open the safe for them. They told him no. Wise then offered to open the safe if the men stood him up. The men agreed, and Wise opened the safe, which contained approximately 25 to 30 guns. The men emptied the safe and placed the guns on a blanket.

The men then turned their attention to Wise's second safe. The men asked Wise for the second safe's combination. Wise told them he did not know the combination, because the safe belonged to his wife. The safe contained several keepsakes Wise intended on giving to his son, casino chips Wise had been collecting, antique jewelry, and approximately $20,000. One of the men beat Wise several times with the pool cue to get him to divulge the combination. Another one of the men took a pair of pliers and squeezed the inside of Wise's nostrils. Afterwards, Wise told them the combination to the second safe was the same as the combination for the first safe. The men were able to open the safe by themselves. They emptied the contents of the safe into plastic storage bins and loaded the items onto Wise's truck.

After the men gathered the items in the safe, the house became quiet. Wise did not hear anything for the next 15 or 20 minutes. He continued to sit in the chair for approximately 30 minutes. Eventually, he was able to get inside his kitchen and free himself with a knife. The entire process took approximately three hours.

Wise opened the front door and saw his truck was gone. He was unable to find his cell phone or his wallet. He went back to his bedroom and sat on his bed for half an hour. He then made his way to a neighbor's house. It took him approximately an hour to an hour and a half to walk over, because he was in pain and kept falling down. His neighbor answered the door and called the police.

Sometime after committing the crime, Gonzales and Fonseca took the stolen property and stored it in an apartment Gonzales shared with his wife, Araceli. Gonzales drove Wise's truck, with Fonseca and Serna following. They reached a mountainous area and doused the truck with gasoline. Gonzales lit the truck on fire.

Afterwards, Serna called Gonzales and asked for a share of the stolen property. Gonzales told Serna he would have to wait. At some point, Gonzales disconnected his phone. Serna never received payment from Gonzales.

3

On February 7, 2011, Santa Clara County Sheriff's Office Deputy John Gonzalez responded to a report of a vehicle fire on Highway 9. When he arrived, the truck was still burning. The fire department was working to extinguish the flames. Deputy Gonzalez was unable to read the full license plate, but he noticed it was a personalized license plate. California Highway Patrol Officer Tyler Pudg obtained the charred license plate. Officer Pudg was able to make out a portion of the license plate. He went through several combinations of what the license plate could be, and was eventually able to match the license plate to Wise's truck.

On March 23, 2011, Santa Clara County Sheriff's Office Detective Sergeant Julian Quinonez received a tip from a citizen's informant about Wise's robbery. The informant provided Quinonez with information that had not been released to the media, including several names and a telephone number. Based on the information given by the informant, Quinonez focused his investigation on Serna, Gonzales, Reyes, and Isaias.

On May 3, 2011, officers arrested Serna, Gonzales, Fonseca, Isaias, and Araceli. Officers searched Gonzales's apartment but did not recover any stolen property. Isaias and Serna admitted they participated in the crime.

A few weeks later, Araceli called Sergeant Quinonez. Araceli told Quinonez that she had been cleaning her apartment, which she shared with Gonzales, when she noticed her carpet looked different. She consented to another search of the house. After removing the carpet and some of the floorboards, officers discovered the stolen property.

See People v. Serna, Appeal Case No. H041769 (Jan. 29, 2018) (“App. Opn”).

As grounds for federal habeas relief, Serna raises fourteen claims based on the following arguments: (1) there was insufficient evidence supporting his convictions for kidnapping to commit robbery and kidnapping to commit extortion; (2) he was insufficiently advised of his Miranda rights and his waiver of rights was not voluntarily made; (3) his statements to the police were made involuntarily as a result of police coercion and because he was not informed of his right to consular notification in violation of...