White v. Ollison
| Citation | 592 F.Supp.2d 1227 |
| Decision Date | 12 December 2008 |
| Docket Number | Case No. CV 06-5210-DSF(RC). |
| Parties | Gerald Bernard WHITE II, aka Pookie, Petitioner, v. Derrick OLLISON, Warden (A) Ironwood State Prison, Respondent. |
| Court | U.S. District Court — Central District of California |
Gerald Bernard White, II, Blythe, CA, pro se.
Carl N. Henry, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the habeas corpus petition and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, 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.
On October 1, 2001, in Los Angeles County Superior Court case no. LA035538, a jury convicted petitioner Gerald Bernard White II, aka Pookie, of one count of second degree murder in violation of California Penal Code ("P.C.") § 187(a), and found that, in the commission of the murder, petitioner personally used a firearm (shotgun) within the meaning of P.C. § 12022.5(a)(1) and personally and intentionally discharged a firearm (shotgun) within the meaning of P.C. § 12022.53(c); however, the jury found petitioner not guilty of first degree murder.1 Clerk's Transcript ("CT") 380-81, 384-86. The petitioner was sentenced to state prison for the total term of 35 years to life. CT 387-90.
The petitioner appealed his conviction and sentence to the California Court of Appeal, CT 391, which in an unpublished opinion filed September 18, 2003, 2003 WL 22146429, modified the judgment by striking the enhancement under P.C. § 12022.5 (), and affirmed the judgment as modified. Motion to Dismiss ("Motion"), Exh. B; Lodgment nos. 2-4. On October 28, 2003, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on December 10, 2003. Motion, Exhs. C-D.
On November 1, 2004, petitioner, proceeding pro se, filed a habeas corpus petition in the Los Angeles County Superior Court, which denied the petition on December 22, 2004. Motion, Exh. E at 125-26; Opposition to Motion to Dismiss ("Opposition"), Exhs. B-E. On March 24, 2005, petitioner filed a petition for writ of error coram nobis in the Los Angeles Superior Court, which denied the petition on June 27, 2005. Opposition, Exhs. H-I. On September 12, 2005, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on June 28, 2006, with citation to In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949),2 People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995),3 and In re Waltreus, 62 Cal.2d 218, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965).4 Motion, Exhs. F-G.
The California Court of Appeal, in affirming petitioner's conviction, made the following factual findings:5 At the time of the offense, the principal prosecution witness, Jessica Barahona, was Keith Jerro's girlfriend.6 He was 16, she, 14. Barahona moved in with Jerro and his family after running away from a group home. She soon met petitioner, age 27, whom she knew by his nickname, "Pookie." Through her contemporary and best friend, Sandy Nammour, Barahona became acquainted with several members of the 18th Street Gang, who occupied an apartment on Sherman Way in Canoga Park. Their names and monikers were Edilberto Garcia (Loco), Edwin Becerra (Casper), and Gustavo Liera (Clown), the murder victim.7 Barahona occasionally stayed over at the apartment when she was not getting along with Jerro.
Anthony King was a friend whom Jerro saw almost daily. Barahona testified that shortly before the March 27, 2000 shooting, she attended a party at King's home, at which she witnessed King and Jerro smoking marijuana and cleaning and loading a handgun.
In their relationship, Jerro physically abused Barahona, striking and tossing her whenever they argued, almost daily. On Sunday, March 26, 2000, Barahona called Jerro and said she no longer wanted to live with him, and wished to pick up her belongings. After an unsuccessful attempt to do so, she returned to the house of her friend Luke (Israel Luke Zamora) and retrieved a pager message from Jerro. Barahona phoned Sandy Nammour at the Sherman Way apartment, told her the situation vis-à-vis Jerro, and asked Nammour to make a "three-way" call to Jerro.8 The call was completed, to petitioner's cellular (cell) phone—the number for which Barahona knew—and the couple agreed to meet, at Tommy's on Roscoe Boulevard, at about 2:00 a.m., March 27.
Barahona rode to the location with Zamora. Jerro arrived about 15 minutes later, in a small, dark-colored truck driven by petitioner. Both of them got out and told Barahona to get in. Petitioner was holding a handgun, which frightened Barahona and Zamora, but she got into the truck, sitting between petitioner and Jerro. Petitioner asked "who the fuck" Zamora was, and briefly pursued his vehicle, but Zamora escaped by turning off his lights.9
Inside the truck, Barahona smelled alcohol on petitioner's breath, as well as Jerro's, and believed petitioner to be drunk. Petitioner remained angry, and he asked Barahona who the 18th Street group were. Petitioner stated that when their number had appeared on the caller I.D. of his cell phone, he had called back, asking if she was there. Those who answered had disrespected petitioner, telling him their names were Casper and Loco, they were from the 18th Street gang and that he shouldn't call there. They had said, "fuck you, nigger," and "fuck your neighborhood."10 As petitioner drove, Jerro loaded bullets in the handgun. (Barahona initially testified he did so by turning a cylinder, but later stated he had loaded them in a square object.) Petitioner drove circuitously to the Sherman Way location; Barahona would not tell him how to get there, but Jerro had been there previously to pick her up.
Parking on Sherman Way, petitioner took a shotgun from behind the seat. He stuck it in his pants, along his left leg.11 Petitioner then walked strangely, not straight but to the side. He and Jerro proceeded inside the apartment building, where Liera and his roommates resided in a second floor apartment, bearing "18th" markings on the walls. Before entering, however, petitioner returned to the truck and retrieved a beanie, which he put on, stating he had forgotten it. Although afraid, Barahona did not leave because she feared petitioner would come after her and harm her. Her fear stemmed from his drunken state, the gun, and her belief that he was a gang member.
After several minutes, Jerro emerged from the building and jogged to the truck. Barahona then saw petitioner come out, together with Liera, who had no shirt on. (Liera had recently left the apartment, saying he was going outside to meet some girls.) Petitioner held the shotgun to Liera's side and screamed that he should look not at petitioner but at the ground. Petitioner walked Liera to a grassy area in front of the building. Liera lay down, between two palm trees, and petitioner fired the shotgun in his direction. Petitioner then shouted again that Liera should keep his head down, not look at him, and not get up. Still yelling this, petitioner returned to the truck, opened the driver's door partly, and fired in Liera's direction again. After the shot, petitioner once more shouted, "Stay down." Barahona heard Liera screaming for "Edwin" or "Eddie."12
After some difficulty, petitioner found his keys and started the truck. As it rolled away, Jerro, his arm pointed out the truck window and toward the building, began firing his handgun. He continued to do so, pointing toward the palm trees, as petitioner drove away. As Barahona described it, the shots came all at once, one after another.
Driving, petitioner said, "I should have smoked him." Petitioner averred that he knew from Liera's voice that he was not the same person as had insulted him on the phone; otherwise he would have shot and killed him. Petitioner added that he was going to get more bullets and come back. He indicated that he did not believe anyone had been shot.
Petitioner placed a beanie over Barahona's eyes, telling her he did not want her to know where he lived. He also said he would kill her if she said anything. After 10 or 15 minutes, petitioner stopped the truck. The three got into his Camry, in which Barahona had previously ridden.13 She ended up at Jerro's home, but later left. Barahona was subsequently interviewed by police, and her videotaped interview and its transcripts were used, in part, to refresh her recollection and for impeachment.
Paramedics arrived at the crime scene at about 3:30 a.m., and found Liera with multiple gunshot wounds, including one in the lower back. He was conscious but spoke with difficulty. In surgery on March 28, 2000, an expended slug was removed from his lower pelvic area. Liera died on April 17, 2000. The coroner's office determined the cause of death to have been multiple...
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