Silva v. McDonald

• Decision Date: 24 August 2012
• Docket Number: No. CV 11–04127–ODW (VBK).,CV 11–04127–ODW (VBK).
• Citation: 891 F.Supp.2d 1116
• Court: U.S. District Court — Central District of California
• Parties: Frank SILVA, Petitioner, v. Mike McDONALD, Respondent.

891 F.Supp.2d 1116

Frank SILVA, Petitioner,

v.Mike McDONALD, Respondent.

No. CV 11–04127–ODW (VBK).

United States District Court,

C.D. California,

Western Division.

Aug. 24, 2012.

Fred Browne, Fred Browne Law Offices, Los Angeles, CA, for Petitioner.

Herbert S. Tetef, CAAG—Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

OTIS D. WRIGHT, II, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus (“Petition”), the records and files herein, and the Report and Recommendation of the United States Magistrate Judge (“Report”).

IT IS ORDERED that: (1) the Court accepts the Findings and Recommendations of the Magistrate Judge, and (2) the Court declines to issue a Certificate of Appealability (“COA”).¹

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

VICTOR B. KENTON, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05–07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner, a California state prisoner represented by counsel in this action, filed a “Petition for Writ of Habeas Corpus by a Person in State Custody” pursuant to 28 U.S.C. § 2254 on May 13, 2011. Respondent moved to dismiss that Petition because Petitioner had a habeas petition pending in the California Supreme Court; but, on Petitioner's motion, this Court stayed this action so that Petitioner could finish exhausting his claims. Following the California Supreme Court's denial of that state habeas petition, Petitioner filed a First Amended Petition on December 14, 2011. Respondent filed an Answer to the First Amended Petition, and Petitioner filed a Reply to Respondent's Answer.

Briefing having now been deemed completed, the matter is ready for decision. Having reviewed the allegations of the First Amended Petition and the matters set forth in the record and the parties' filings, it is recommended that the First Amended Petition be denied and the matter be dismissed with prejudice.

PROCEDURAL HISTORY

On November 21, 2008, a jury in the Los Angeles County Superior Court convicted Petitioner of the attempted murder of Jeremiah Mitchell (“J.M.”) (count 1, California Penal Code [“P.C.”] §§ 664/187(a)) and the attempted murder of Daeveon Jones (“D.J.”) (count 2, P.C. §§ 664/187(a)). ( See Clerk's Transcript, Volume 2 of 2 [“2 CT”] 385–88, 460–61.) The jury found that both attempted murders were committed willfully, deliberately, and with premeditation within the meaning of P.C. § 664(a). The jury also found that in the commission of each attempted murder, Petitioner personally and intentionally fired a gun (P.C. § 12022.53(c)); Petitioner personally and intentionally fired a gun proximately causing great bodily injury (P.C. § 12022.53(d)); and a principal personally and intentionally fired a gun proximately causing great bodily injury (P.C. § 12022.53(e)(1)). The jury also found that each offense was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (P.C. § 186.22(b)(1)(C)). ( See Lodgment 2 at 4; 2 CT2 385–88.)

At sentencing, on count 1 the state court considered the gang and firearm enhancements and imposed a total sentence of 40 years to life; and on count 2 the court imposed the same sentence, to run concurrently to the sentence on Count 1. Sentences on remaining firearm enhancements were imposed and stayed. ( See Reporter's Transcript, Volume 6 of 6 [“6 RT”] 3315–16.) Taken together, Petitioner's total sentence was for 40 years to life with the possibility of parole. (Lodgment 2 at 4.)

Petitioner appealed to the California Court of Appeal (Lodgment 1); and on November 19, 2009, the Court of Appeal denied that appeal in a reasoned, unpublished opinion. (Lodgment 2.) Petitioner filed a Petition for Review in the California Supreme Court (Lodgment 3); and on February 18, 2010, the California Supreme Court denied that appeal without comment or citation to authority. (Lodgment 4.)

On May 12, 2011, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Lodgment 5.)

The next day, on May 13, 2011, Petitioner initiated the instant federal action by filing his original habeas petition. On June 16, 2011, Respondent filed his Motion to Dismiss the Petition on the ground that the Petition was unexhausted due to Petitioner's pending habeas petition in the California Supreme Court. On July 25, 2011, this Court issued a Report and Recommendation, recommending that the Petition be dismissed without prejudice for lack of exhaustion; but on August 15, 2011, Petitioner filed Objections to the Report and Recommendation and moved to stay the proceedings. On August 19, 2011, this Court vacated the Report and Recommendation; and on November 14, 2011, this Court issued a Memorandum and Order granting Petitioner a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir.2002).

On December 5, 2011, Petitioner filed a “Notice of Decision,” notifying this Court that on October 12, 2011, the California Supreme Court had denied Petitioner's pending state habeas petition. On December 14, 2011, Petitioner filed the instant First Amended Petition. (“FAP”). On April 23, 2012, Respondent filed an Answer to the First Amended Petition (“Answer”), together with a Memorandum of Points and Authorities attached in support of the Answer (“MPA”); and on June 22, 2012, Petitioner filed a Reply (“P's Reply”) to Respondent's Answer.

FACTUAL BACKGROUND

The following factual background is quoted from the California Court of Appeal's reasoned decision denying Petitioner's appeal: ¹

On the evening of September 3, 2005, a van drove past 15–year–old J.M. [ i.e., Jeremiah Mitchell] and 17–year–old D.J. [ i.e., Daeveon Jones] as they left a store. D.J. looked at the van and the three men in the van looked at D.J. D.J. and J.M. walked into an alley. The van entered the alley and the driver extinguished its headlights. Petitioner leaned out of the front passenger window holding a gun and began shooting at J.M. and D.J. Someone in the rear of the van also fired a gun. The two guns sounded different. D.J. was shot in the stomach and fell to the ground. Petitioner got out of the van and walked toward D.J. while continuing to shoot. D.J. got up and ran away. Neither D.J. nor J.M. had a gun, and the men in the van did not say anything before opening fire. J.M. lifted D.J.'s shirt and saw a single bullet hole in D.J.'s stomach. A Los Angeles Police Department officer who heard the shots drove to the scene and chased the van. When the van stopped, Petitioner got out of the front passenger seat, Edward Delacruz got out of the back seat carrying a shotgun, and Robert Contreras left the driver's seat. The police apprehended all three men. Petitioner dropped a loaded nine-millimeter semiautomatic handgun just before an officer reached him.

D.J. was in the hospital for six days and required three operations to treat his injuries. J.M.'s finger and head were injured. Detective Tommy Thompson testified that J.M.'s wounds were “pretty significant” and were “consistent” with being inflicted by bird shot expelled from a shotgun shell. The police found an expended shotgun shell casing, an unexpended shotgun shell containing bird shot, and three expended nine-millimeter casings at the scene of the shootings. The nine-millimeter casings had been ejected from the handgun Petitioner dropped. The expended shotgun shell had been ejected from a shotgun Delacruz was holding when the police caught him. The unexpended shotgun shell had been cycled through the same shotgun. The prosecution's firearm expert testified that when a birdshot shell is fired from a shotgun, hundreds of tiny spherical pellets disperse in a spreading pattern. If any of these pellets strike an object, they will either “leave an imprint” on it or pass through it.

The shooting occurred within territory claimed by the East Coast Crips gang at a location where East Coast Crips gang members were known to congregate. The alley in which D.J. and J.M. were shot was covered with East Coast Crips gang graffiti. Petitioner, Delacruz, and Contreras were members of the Florencia 13 gang, which was engaged in a longstanding “war” with the East Coast Crips gang. Each of the gangs committed drive-by shootings, assaults, and murders against the other gang. The prosecution's gang expert opined that the Florencia 13 gang members identified the victims as “possible rival gang member[s]” and sought to eliminate them for the benefit of the Florencia 13 gang. Eliminating them would reduce the ranks of the East Coast Crips gang, enhance the reputation of the Florencia 13 gang as fearless, and intimidate the community so as to permit Florencia 13 to commit crimes without citizens reporting them to the police.

Petitioner testified at trial that he was 16 years old and a member of the Florencia 13 gang at the time of the shooting. He spent the day drinking and smoking marijuana at a Florencia 13 gang hangout with other members of his gang, including Petitioner's friends Delacruz and Contreras. Someone handed Petitioner a gun for protection against rival gang members. Petitioner, Delacruz, and Contreras drove in Petitioner's van to get food at a taco truck Petitioner knew was within the territory claimed by the East Coast Crips gang. Just before they drove away from the gang hangout, Petitioner noticed that Delacruz had a shotgun. Petitioner forgot to take the gun out of his pocket before they left the hangout, so he put it on the floor of the van. When Petitioner, Delacruz, and Contreras left the taco truck, they saw three African–American men...