Torres v. Montgomery

• Decision Date: 18 May 2020
• Docket Number: No. 2:16-cv-01245-JKS,2:16-cv-01245-JKS
• Parties: ADRIAN TORRES, Petitioner, v. WARREN MONTGOMERY, Warden, Calipatria State Prison, Respondent.
• Court: U.S. District Court — Eastern District of California

ADRIAN TORRES, Petitioner, v. WARREN MONTGOMERY, Warden, Calipatria State Prison, Respondent.

No. 2:16-cv-01245-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 18, 2020

MEMORANDUM DECISION

Adrian Torres, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Torres is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Calipatria State Prison. Respondent has answered, and Torres has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On October 13, 2010, Torres, along with co-defendants Rudolfo Raymond Ortega, Jr., and Jesus Antonio Vidrio, was charged with the murder of Humberto Padilla (Count 1); the attempted murder of minor R.E.¹ (Count 2); and assault with a semiautomatic firearm against minor K.W. (Count 3). The information alleged as to Counts 1 and 2 that the defendants: 1) personally and intentionally discharged a firearm that proximately caused great bodily injury and death to Padilla; and 2) committed the crimes for the benefit of a criminal street gang. The information further alleged as to Count 3 that Torres and Ortega personally used a firearm. Ondirect appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Torres:

The information was based on an incident that occurred on March 5, 2010. That afternoon, then-17-year-old Humberto "Beto" Padilla (Padilla) and his mother's boyfriend, Alton Johnson, went to Alex Guizar's grandmother's house "down the street" so that Padilla and Guizar "could straighten out whatever differences they were having in school." Padilla did not go there intending to fight Guizar and Johnson did not think there would be a fight. Johnson was a longtime friend of Guizar's family and had known Guizar for Guizar's entire life. Johnson accompanied Padilla to the grandmother's house "[j]ust to make sure that everything goes okay." At some point, the discussion between Padilla and Guizar turned into a one-on-one fist fight between them that "looked even" to Johnson. Padilla and Johnson returned home, and later that day, Padilla went out. Some testimony was presented that Padilla was a Norteño gang associate, and that the fight was over Guizar having contact with relatives who were Sureños.^FN2

FN2. Although a great deal of evidence was presented at trial relating to the gang charges, we omit most of that evidence from our facts because the jury found the gang allegations untrue.

At about 6:30 p.m. that evening, Padilla was with K.W. and R.E.,^FN3 standing outside of a friend's house, waiting for the friend to finish showering and get ready so they could all go out together. As they waited, they had a discussion about the fight Padilla had with Guizar earlier that day. Padilla was upset because he had called K.W. and a friend to come and back him up in the fight, but the two had failed to get there in time.

FN3. We will identify the living victims who were minors by their initials to protect their anonymity.

K.W. then saw two men walk by. The individuals, who were wearing black clothing and beanies, seemed friendly, but Padilla and R.E. appeared to be suspicious of them because they did not recognize them. R.E. said, "Yo, who's that? We don't know them," or may have possibly said, "They're not from here." As the two men approached, Padilla and R.E., who had been sitting down, got up to greet them. The bigger of the two men^FN4 asked, "Hey, you all Norte?" or "you all north bay?"^FN5 R.E. replied, "Yeah, Rocky Hill Posse"—a reference K.H. did not understand, but was a reference to the Norteño gang—and then "dapped" the man's hand as a form of handshake. At that point, the two men stepped back, each pulled out a handgun, and began firing at Padilla, R.E., and K.W.FN4. When K.H. spoke with police, he stated that the shorter of the two men spoke. Police described Ortega as 5'6" tall, and Torres as 5'9" tall and heavier.

FN5. K.W. told police that the man asked, "you all north bay?" At trial, K.W. explained that he did not know what "Norte" meant at the time, as he was relatively new to the area and uninformed about gangs. He learned after the shooting that the incident may have been gang related and that R.E. was a Norteño. K.W. testified that Padilla was not a Norteño.

When asked whether he saw Padilla quickly pull his hand out of his pocket, K.H. testified that he "might have," but that he did not see this occur. K.H. testified that for the most part the shooters were aiming at Padilla, although some shots hit the side of a house and one hit R.E. Padilla was shot in the upper left side of his back and his right buttock, and died at the hospital from gunshot wounds. Both bullets exited the body and it was not possible to tell the caliber of the bullets that caused the wounds. R.E., who was 15 years old at the time, was shot in the buttock. R.E. suffered a puncture wound in his pelvis and a wound on his buttock, consistent with gunshot wounds. He was hospitalized for five days and underwent surgery in which part of his bowel was removed and a hole in his ureter, a tube connecting the kidney to the bladder, was repaired.

K.H. testified that he was not armed that day and did not see either Padilla or R.E. with any weapons. He testified that he ran from the scene with R.E. after the shooting and helped him to R.E.'s grandmother's house. At that point, R.E. said, "I'll be all right. Get out of here." As K.W. went back toward the scene of the shooting to see how Padilla was doing, he saw that police and medical personnel had already arrived. K.W. went home because he did not want to be involved with the police. He was also worried the shooters might have accomplices in the area, and he was afraid of having to become a witness in the case. At trial, K.W. identified Torres and Vidrio as the shooters. He acknowledged he did not identify either of them when asked by police shortly after the incident. He testified he was about 85 percent certain that Torres and Vidrio were the shooters.

A resident of the Rocky Hill neighborhood testified that at about 7:40 p.m. on March 5, 2010, he was at home playing with his children when he heard gunshots and saw two men unloading two guns. The resident ran after the men as they ran up a hill and got into a white car with tinted windows that was parked almost a block away from where the men had been shooting. Later, the police showed the resident a car, which the resident positively identified as the white car that the men jumped into at the scene of the shooting.

Vacaville Police Officer Stuart Tan, who was on duty in an undercover capacity on the evening of March 5, 2010, testified that he heard 10 to 15 gunshots from two different guns as he walked to his unmarked vehicle. He then heard a dispatch call that there had been a shooting, and that the suspect vehicle was a white Chevy Impala (the Impala) with tinted windows. Tan drove to an onramp to Highway 80 looking for a car that matched the description. When he saw the Impala go by in the fast lane of thefreeway, Tan merged onto the freeway to catch up to it, get a license plate, and see who was inside. Tan saw three individuals in the car. Tan's car was not equipped with emergency lights or equipment so he was unable to pull the Impala over, but he watched as marked patrol vehicles caught up. The patrol vehicles and the Impala all exited the freeway at the Airbase Parkway exit. The Impala drove at least 45 miles per hour through a residential neighborhood before crashing into a small retaining wall at the side of a house.

The occupants ran off. The rear-seat passenger, who was identified as Torres, did not obey commands to stop and continued to fight after police caught up with him, but was eventually subdued and handcuffed. A loaded magazine was found in the Impala where Torres had been sitting; no weapons were found on him. The front seat passenger, identified as Ortega, was found in a garbage can with the assistance of a canine. Next to him in the garbage can was a black hooded sweatshirt. The driver of the Impala, identified as Vidrio, was also stopped and a search of his person revealed no weapons.

Police searched the Impala and found a black wool ski mask in the passenger door, two sets of gloves and two cell phones, and a magazine for a .9mm firearm with four bullets in it. Police found a magazine for a .9mm Taurus handgun with 12 rounds in it in the front yard where the Impala crashed.

Vacaville police officers testified that bullet casings were scattered along the sidewalk at the scene of the shootings—.9mm and .45 caliber casings from two different semi-automatic weapons. An expert in ballistics and crime scene analysis testified that the .9mm cartridge casings were fired from the Taurus .9mm semi-automatic pistol that was recovered. No firearm was available with which to compare the .45 caliber bullets that had been fired. An expert in gunshot residue received samples from the two sets of gloves that were found in the Impala and concluded there were particles of gunshot residue on both sets. DNA evidence established that Torres and Ortega had worn the gloves.

Ortega, who was 21 years old at the time of the incident, testified that he joined a Sureño gang when he was 13 years old and in foster care, and that his nickname was "Drifter" because he was always in a different home. In March 2010, he was living with Torres because he had nowhere else to live. Torres was not a gang member. Ortega testified that on March 5, 2010, he received a call from his cousin, Guizar, who was crying and said he had been beaten up and jumped by Norteños. Guizar told Ortega that he was being threatened by Norteños and that he wanted Ortega to come and get him out of the Rocky Hill neighborhood. After receiving the call, Ortega called Vidrio and told him to come pick him up. He also asked Torres to join him and Vidrio. Ortega testified

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