Soojian v. Lizarraga

• Decision Date: 24 June 2018
• Docket Number: Case No. 1:16-cv-00254-AWI-SAB-HC
• Court: U.S. District Court — Eastern District of California
• Parties: TANNEN SOOJIAN, Petitioner, v. JOE A. LIZARRAGA, Respondent.

TANNEN SOOJIAN, Petitioner, v. JOE A. LIZARRAGA, Respondent.

Case No. 1:16-cv-00254-AWI-SAB-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

June 24, 2018

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF EXHAUSTED CLAIMS IN PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.BACKGROUND

On May 21, 2012, Petitioner was convicted after a second jury trial in the Fresno County Superior Court of: two counts of kidnapping to commit robbery (counts 1, 4); second-degree robbery (count 3); and assault with a firearm (count 5). (3 CT¹ 630-31, 640-43). The jury also found true several enhancements, including: intentional discharge of a firearm causing great bodily injury (counts 1, 3); personal infliction of great bodily injury (counts 1, 3, 5); and personal use of a firearm (count 4). (3 CT 630-31, 640-43). The jury found Petitioner not guilty of theother count of assault with a firearm (count 6) and was unable to reach a verdict on the attempted murder charge (count 2). (3 CT 644; 25 RT 6175-77, 6183).

The trial court sentenced Petitioner to two consecutive indeterminate terms of life with the possibility of parole for the kidnapping counts, plus consecutive terms of twenty-five years to life and ten years for enhancements on these counts. (4 CT 1088). A concurrent term of three years was imposed on count 5, plus four years for an enhancement thereto. (4 CT 1090). The sentence on count 3 and the remaining enhancements were stayed. (4 CT 1088, 1090).

On December 19, 2014, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Soojian, No. F066280, 2014 WL 7340275, at *28 (Cal. Ct. App. Dec. 19, 2014). The California Supreme Court denied Petitioner's petition for review on May 11, 2015. (LDs² 41, 42).

On February 22, 2016, Petitioner filed the instant federal petition for writ of habeas corpus in the Sacramento Division of the United States District Court for the Eastern District of California. (ECF No. 1). On February 23, 2016, the matter was transferred to the Fresno Division. (ECF No. 5). In the petition, Petitioner raises the following claims for relief: (1) jurors improperly considering evidence not presented during trial; (2) denial of right to trial by impartial jury; (3) jurors improperly discussed and considered Petitioner's failure to testify; (4) Miranda error; (5) erroneous admission of third-party misconduct evidence; (6) prosecutorial misconduct by improperly using evidence of third-party misconduct to support an inference of guilt by association; (7) denial of Petitioner's right to presumption of innocence by various and cumulative prosecutorial errors; (8) admission of tainted eyewitness identification evidence, in violation of due process; and (9) cumulative errors. (ECF No. 1 at 3-4).

On May 19, 2016, Respondent filed an answer. (ECF No. 20). On January 3, 2017, Petitioner filed a motion to stay the petition pending exhaustion of claims 7 and 9. (ECF No. 36). On June 7, 2017, the Court denied the motion to stay and allowed Petitioner to proceed with the exhausted claims of the petition. (ECF No. 42). Petitioner filed a traverse on July 6, 2017. (ECF No. 44).

Subsequently, Petitioner filed a notice of interlocutory appeal of the Court's June 7, 2017 order denying the motion to stay. (ECF No. 47). The Ninth Circuit dismissed the notice of interlocutory appeal for lack of jurisdiction on February 27, 2018. (ECF No. 50).

II.STATEMENT OF FACTS³

Prior Proceedings in this Court

This is Soojian's third appeal to this court. As will be explained in greater detail below, the pickup Soojian's cousin, Aaron Bolin, owned at the time of the offense was located and searched after the first trial. Some incriminating evidence was discovered in the vehicle. In the first appeal (People v. Soojian (Mar. 16, 2009, F053842) [nonpub. opn.] ) we held the trial court applied the wrong standard of review when reviewing Soojian's motion for a new trial based on this newly discovered evidence.

After remand, the trial court again denied Soojian's motion for a new trial. In the second appeal (People v. Soojian (2010) 190 Cal.App.4th 491) we concluded the newly discovered evidence required reversal of the judgment and a new trial.⁴ This appeal is from the judgment after the second trial.

The Information

The fourth amended information charged Soojian with (1) kidnapping Joyce Ahumada to commit another crime (Pen.Code, § 209, subd. (b)(1))⁵ (count 1); (2) the attempted murder of Joyce (§§ 664, 187, subd. (a)) (count 2); (3) second degree robbery of Joyce (§ 211) (count 3); (4) kidnapping Morgan Ahumada to commit another crime (§ 209, subd. (b)(1)) (count 4); (5) assaulting Joyce with a firearm (§ 245, subd. (a)(2)) (count 5); and (6) assaulting Morgan with a firearm (ibid.) (count 6).⁶ Counts 1, 2, and 3 alleged Soojian personally discharged a firearm within the meaning of section 12022.53, subdivision (d) and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Count 4 alleged Soojian personally used a firearm within the meaning of section 12022.53, subdivision (b). Counts 5 and 6 alleged Soojian personally used a firearm within the meaning of section 12022.5, subdivision (a).

Victim Testimony

Joyce and her son, Morgan, were delivering the local newspaper early in the morning of Sunday, April 18, 2004, in a rural area of Fresno County. While Joyce was stopped on Shaw Avenue, a white truck passed her vehicle. The driver of the truck looked towards Joyce and Morgan as he passed them. Joyce next noticed the white pickup when it appeared behind Joyce's vehicle. The truck was being driven erratically, but Joyce concentrated on delivering newspapers. The pickup slowly passed by Joyce's vehicle when she stopped to allow Morgan to deliver a newspaper. Joyce was not alarmed by the slow speed of the pickupbecause they were approaching an intersection controlled by a stop sign. Instead of proceeding through the intersection, the pickup backed up slowly, stopping when the front passenger door of the pickup was aligned with the front driver's door of Joyce's vehicle. The perpetrator leaned across the front seat of his vehicle to talk to Joyce through the passenger window of the pickup. He asked Joyce if she could direct him to Clovis. Joyce had a difficult time hearing over the noise of the pickup's engine, so the perpetrator got out of his pickup and walked up to the driver's side window of Joyce's vehicle. He was stocky, clean cut, and was wearing tight pants and a white T-shirt with buttons. Joyce did not feel threatened because the perpetrator was polite and nonthreatening.

While the perpetrator was talking to Joyce, he pulled out a handgun and pointed it at Joyce's head. He said "We're here to rob you." When Morgan kept staring at the perpetrator, the perpetrator became irate and yelled at Morgan to stop looking at him. Joyce told Morgan to retrieve her wallet from the glove box and to give it to the perpetrator, which was accomplished. The perpetrator looked around and then ordered Joyce out of her vehicle. When Joyce was out of the vehicle, the perpetrator walked her to the passenger side and ordered Morgan out of the vehicle.

The three walked towards the perpetrator's pickup, where the perpetrator ordered Morgan to get into the bed of the pickup. When Morgan did not know how to do so, the perpetrator provided instruction. The perpetrator then ordered Joyce into the cab of the pickup. He ordered Joyce to get on her knees in the front passenger well, which caused her to face the back of the pickup. The perpetrator then climbed into the pickup through the passenger door and climbed over Joyce towards the driver's seat. Joyce's face was against the seat while the perpetrator climbed over her. When his crotch was touching the back of Joyce's head, the perpetrator paused. Joyce testified she could feel the perpetrator's erect penis against the back of her head. The perpetrator pulled himself into the driver's seat and began fidgeting with the column gearshift. He then ordered Joyce to move next to him.

The perpetrator began driving forward. At this point Joyce decided she had to fight for her life and the life of her son, so she began screaming and attempted to pull the keys out of the ignition. She also grabbed the automatic transmission shift lever. The perpetrator yelled at her to stop fighting and began hitting her with the gun, causing cuts on her head. Joyce continued to grab whatever she could to stop the truck, and finally the perpetrator said if she did not stop he would shoot her. Joyce opened the passenger door to escape. As she was jumping out of the pickup, the perpetrator shot her in the chest. Joyce described the gun as a long-barreled revolver. She also testified there were two shots, one right after the other. Joyce continued to run away and yelled at Morgan to get out of the pickup. Morgan climbed out of the pickup just as the perpetrator sped from the scene. Morgan ran to Joyce's pickup to retrieve his cell phone, and Joyce ran to a customer's house to seek help.

Defense counsel focused on the inconsistencies between the various statements Joyce gave to law enforcement, her testimony at the preliminary hearing, her testimony at the first trial, and her trial testimony. Defense counsel pointed out that Joyce did not tell anyone in her statements the white pickup first passed her going in the opposite direction and the perpetrator stared at her as he did so. Nor did she mention the truck being driven erratically behind her in the first two interviews, although she mentioned it in a third interview. Nor did she mention the perpetrator wore tight pants in the first three interviews.

Morgan testified to the events in a manner that was similar to his mother's testimony until the point in time when Morgan was ordered to climb into the bed of the

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