Trujillo v. Lewis

• Decision Date: 29 September 2014
• Docket Number: Case No.: 11-CV-0522 YGR
• Court: U.S. District Court — Northern District of California
• Parties: MARIO TRUJILLO, PETITIONER, v. GREG LEWIS, WARDEN, RESPONDENT.

MARIO TRUJILLO, PETITIONER, v. GREG LEWIS, WARDEN, RESPONDENT.

Case No.: 11-CV-0522 YGR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

September 29, 2014

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

Now before the Court is a habeas corpus petition filed by Petitioner Mario Trujillo pursuant to 28 U.S.C. section 2254, advancing six claims based upon trial court error and cumulative effect theory. (Dkt. No. 1.) Respondent Greg Lewis has filed an answer and a memorandum of points and authorities in support thereof, as well as exhibits (Dkt. Nos. 5, 6-37); Petitioner has filed a traverse (Dkt. No. 62).

For the reasons set forth below, the petition for such relief is DENIED.

BACKGROUND

Petitioner was originally charged by amended information with first degree murder (§ 187, subd. (a); count 1), shooting at an occupied motor vehicle (§ 246; count 2), obliterating theidentification of a firearm (§ 12090; count 3), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 4). The information further alleged that the offenses in counts 1 through 3 were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that Petitioner personally discharged a firearm during the commission of the offense in count 1 (§ 12022.53).

The trial court heard motions in limine on February 15, 2006, and testimony began on February 22, 2006. Prior to submission of the matter to the jury on March 6, 2006, the prosecutor withdrew count 4. On March 14, 2006, the jury informed the court that it found Petitioner guilty of the offense in count 3, and it found the gang enhancement as to that offense to be true, but it could not reach a verdict as to the offenses in counts 1 and 2. The trial court accepted the verdict as to count 3 and declared a mistrial as to counts 1 and 2. On May 25, 2006, the trial court sentenced Petitioner to seven years in state prison on count 3.

Petitioner appealed directly, contending in part that there was insufficient evidence to support the conviction on count 3. The California Court of Appeal agreed and reversed the judgment. People v. Trujillo (Jan. 17, 2008, H030321) (unpublished).

In the meantime, the trial court heard motions in limine for the retrial beginning on June 5, 2007. The trial court denied Petitioner's motion to exclude evidence of a nine-millimeter handgun seized from his bedroom on the night of his arrest, and transcripts of jail telephone calls between Petitioner and his father and Petitioner and his brother. The trial court also denied Petitioner's motions to present expert testimony on eyewitness identifications and to present evidence of third-party culpability. After conducting an in camera hearing on June 11, 2007, the trial court denied Petitioner's request to disclose the identity of a confidential informant.

Although Petitioner's counsel waived formal reading of the information to the jury venire, he did not object when the trial court informed the venire that Petitioner was being tried on three counts: "The first one is homicide; Count 1. The second one is shooting at a vehicle; that's count 2. And the third one is knowingly participating in a street gang with knowledge that the gang engaged in a pattern of criminal activity."

The Court adopts as its account of the facts the relevant summary set forth in the last reasoned opinion of the California Court of Appeal decision on direct review of Petitioner's conviction. People v. Trujillo, H032260, 2009 WL 3340496 (Cal. Ct. App. Oct. 19, 2009). For purposes of this summary, the Court notes in advance that the color blue is associated with the Sureño street gang and the color red with the Norteño street gang. Those facts are as follows:

On the night of August 27, 2004, Juan Raya helped his friends Jorge, Edgar, Jose, and Hugo take a brake light off of a car Jorge had parked at his house on Pacific Avenue in order to put the light on Edgar's car. While they worked, Hugo's girlfriend Maria sat in the driver's seat of her car which was parked on the street behind Edgar's car. Hugo was wearing a blue plaid shirt, Jose was wearing a white T-shirt with small blue stripes, and Raya was wearing a blue T-shirt under a gray hooded sweatshirt.

As the men were removing the light from Jorge's car, a new Honda Accord with its windows halfway down passed by them very slowly. Somebody mentioned that the people in the car were staring at them. Hugo and Jose saw at least three people in the car, but neither of them recognized anybody. Edgar and Jorge thought that the car and the people were the same ones they had seen at the apartment complex they had passed on Pacific Avenue as they drove from Edgar's house to Jorge's house that night.

The Honda turned the corner at Del Monte. Hugo got back into the passenger seat of Maria's car while Jorge and Edgar put the light on Edgar's car. Raya and Jose stood nearby. A man wearing a white hooded sweatshirt and dark pants walked up to Edgar's car from the corner of Del Monte and Pacific. As he passed by Jose and Raya, the man asked twice in English, " 'Are you guys gangsters?' " Jose responded, "We are just racers, bro." Edgar and Jorge also said that they were "just racers," and that they did not want any problems. Edgar recognized the man as somebody who had gone to his high school. Both Hugo and Maria watched what was happening and got a good look at the man's face. Raya approached the man but did not say anything. The man pulled out a revolver and pointed it at the back of Raya's head. Jorge yelled at the man to put the gun away. The man pulled the trigger, and the gun "clicked," but it did not fire. Jorge yelled at Raya to run, and Jorge ran towards Del Monte, but Raya did not move. The man pulled the trigger again, and this time the gun fired. Raya fell to the ground face down. The man turned and looked at Maria, pointed his gun at her, then turned and pointed the gun at Hugo and fired it. Hugo, Jose, Edgar, Jorge, and Maria all identified defendant at trial as the man who shot Raya and who also fired at Hugo while Hugo was in Maria's car.

Defendant turned back and looked down at Raya and at Jose. He then walked quickly down Pacific toward the apartment complex and in the opposite

direction from Del Monte. Jose turned Raya over and told him that everything would be okay. He then ran after defendant. Edgar followed, but then yelled at Jose to stop because defendant still had the gun. Jose and Edgar returned to Raya. Edgar called 911 and Jose flagged down a passing police car.

Hugo ducked down when defendant fired at him and he told Maria to get them out of there. Maria backed the car up then sped up to Del Monte, turned right, and drove up to the next block, where she picked up Jorge. They all drove to Maria's mother's house and Maria's mother took them back to Jorge's. The police were at Jorge's when they returned. They told the officers that they had seen what happened. Officers separately took Hugo, Maria, Jorge, Jose and Edgar to the police station, where they separately described to officers what they had seen and heard. However, it was clear that some of the witnesses had talked to each other prior to the interviews, because they shared information during the interviews that they had learned from others.

Salinas Police Officer Arlene Currier was driving westbound on Del Monte near Pacific on the night of August 27, 2004, when two men flagged her down and told her that somebody had been shot. After she located Raya, who was still breathing, the officer secured the area and called for backup. She also broadcast the reported description of the shooter: an "Hispanic male adult, about 5'7", approximately, wearing a white hooded sweat shirt, and gray pants," who was last seen heading southbound on Pacific on foot. A few minutes later another officer broadcast a reported description of the shooter as an Hispanic male adult, " '21 or 22; 5'7"; 160; white hooded sweater with gray pants,' " carrying a " 'silver handgun with brown pistol whip.' " Jose reported to an officer that the suspect was between the ages of 20 and 22 years old, approximately five feet eight inches tall, weighing 170 pounds, having a medium complexion and a light mustache, and wearing a white sweater, but the officer did not broadcast that description because a similar description had already been broadcast.

Salinas Fire Department paramedics were dispatched to the area of Pacific and Del Monte at 12:03 a.m. on August 28, 2004. Officers directed the paramedics to Raya, who was lying on the sidewalk about 30 to 50 feet down Pacific Avenue. The paramedics pronounced Raya dead at 12:14 a.m. The cause of Raya's death was later determined to be a gunshot to the top of the back of his head. Although Raya had a tattoo that could be considered gang related, it would have been covered by his clothing and not visible to the shooter at the time of his death. The parties stipulated that a chemical analysis of the blood samples taken from Raya during the autopsy indicated that Raya "took cocaine within several hours of his death" and that "the dose that [he] took was a recreational dose taken with alcohol."

Officers recovered bullet fragments but no casings at the scene. A bullet apparently hit the rack on a van and lodged in a residence. Other bullet fragments were recovered from Raya's skull during the autopsy. An officer determined that

the bullets were probably hollow point and that they were fired from either a .38 special or a .357 magnum revolver. The fragments were not large enough to enter information on them into the Integrated Ballistics Identification System (I.B.I.S.). Officers saw a white hooded sweatshirt in the back of a pickup truck parked on Pacific away from the murder scene in the direction defendant fled after the shootings, but the sweatshirt was neither seized nor photographed.

The day after the shooting, Hugo, Jorge, Edgar and Jose got together at

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