Rafael Reyes v. J. Soto

Filing 38

FINAL REPORT AND RECOMMENDATION issued by Magistrate Judge Sheri Pym. Re: Petition for Writ of Habeas Corpus (2254) 1 (kca)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 RAFAEL REYES,
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Petitioner,
v.
J. SOTO, Warden,
Respondent.

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Case No. CV 15-8566-CJC (SP)
FINAL REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

This Final Report and Recommendation is submitted to the Honorable

19 Cormac J. Carney, United States District Judge, pursuant to the provisions of 28
20 U.S.C. § 636 and General Order 05-07 of the United States District Court for the
21 Central District of California. The court makes this Final Report to correct two
22 word errors in the original Report.
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I.

24

INTRODUCTION

25

On December 10, 2015, petitioner filed a First Amended Petition for Writ of

26 Habeas Corpus by a Person in State Custody (“First Amended Petition” or “FAP”).
27 Petitioner challenges his 2012 conviction in Los Angeles County Superior Court
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1 for second degree murder with firearm enhancements, for which he was sentenced
2 to forty years to life in prison.
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The FAP raised five grounds for relief, but the court previously dismissed

4 four of the grounds. Ground One remains, alleging there was insufficient evidence
5 to convict petitioner of second degree murder.
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For the reasons discussed below, petitioner’s claim does not merit habeas

7 relief. It is therefore recommended that the FAP be denied.
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II.

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STATEMENT OF FACTS1

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About 1:00 a.m. on August 26, 2011, Nicholas Jaramillo, petitioner, and

11 Walter Velasco drove to a house at the corner of 87th Place and Wall to obtain
12 marijuana.2 Jaramillo testified that he had been to that location to obtain marijuana
13 twice before with Velasco and once with petitioner. Velasco drove, petitioner was
14 seated in the front passenger seat, and Jaramillo sat in the back seat behind
15 petitioner.
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Los Angeles Police Department Detective Joseph Kirby testified that the

17 house at the corner of 87th Place and Wall was a place where crack cocaine was
18 sold. The house used a “hook” in its transactions – i.e., a person who loitered
19 around the premises and made contact with persons in the area whom the hook
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The facts set forth are drawn substantially verbatim from the California
22 Supreme Court’s decision on direct appeal. See LD 6 at 2-6. Such statement of
facts is presumed correct. 28 U.S.C. § 2254(e)(1); Vasquez v. Kirkland, 572 F.3d
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1029, 1031 n.1 (9th Cir. 2009). Because petitioner challenges the sufficiency of
24 the evidence, this court has conducted an independent review of the record. See
Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
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Jaramillo testified under a grant of immunity that concerned his attempt to
purchase narcotics and did not concern his participation in a murder or shooting.
27 He admitted a 2008 conviction for assault with a deadly weapon and a 2012
28 conviction for auto theft.
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1 believed were present to purchase crack cocaine. The hook would advise a
2 potential buyer of the next steps in the transaction process.
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As they arrived at the house, Jaramillo saw two Black men standing outside.

4 Jaramillo believed that the men were looking for people who wanted to buy
5 narcotics. According to Jaramillo, Velasco parked across the street from the house.
6 Petitioner got out of the car and crossed the street to see if there were any drugs.
7 After a while, Jaramillo heard two gunshots and saw one of the two Black men
8 who had been standing in front of the house run about 20 feet before falling to the
9 sidewalk.
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After the gunshots, petitioner got back in the car. Realizing that one of the

11 Black men he had seen had been shot, Jaramillo felt shock and disbelief. He
12 looked at Velasco whose face appeared to convey shock and disbelief. Velasco
13 began to drive toward the freeway, but Jaramillo convinced him to return because
14 he believed that it was not right that a man had been shot and they did not check on
15 him. Velasco parked at the corner, down the street from “where it happened.”
16 Petitioner and Velasco got out of the car, and Jaramillo moved to the driver’s seat.
17 The police arrived shortly thereafter and before he could “do anything.”
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About 1:00 a.m. on August 26, 2011, Officer Sean Dempsey and other

19 officers responded to a shooting call at 87th Street and Wall Street. Nearby, at
20 87th Place and Wall Street, the officers found Richard Lewis lying on the
21 sidewalk. Lewis had sustained two gunshot wounds and was unconscious and not
22 breathing. Officer Dempsey called for an ambulance. Lewis died from a gunshot
23 wound that perforated his lungs, trachea, and aorta. Two bullets were recovered
24 from Lewis’s body during the autopsy.
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At the scene, Officer James Grace contacted a person who pointed west and

26 said, “They went that way.” The person gave a brief description of a vehicle.
27 Officer Grace drove west and observed a vehicle – a silver or light gold four-door
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1 Nissan Altima – that matched the witness’s vehicle description. The Altima was
2 parked on the north side of the street and was facing west. A person was sitting in
3 the driver’s seat. Petitioner’s fingerprints were found on an open beer bottle in the
4 Altima.
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Officer Kurt Lockwood and his partner were near the scene of the shooting

6 call. Officer Lockwood saw two Hispanic males – petitioner and Velasco –
7 running into a restaurant parking lot from the direction of the shooting call.
8 Officer Lockwood and his partner conducted a pedestrian stop. Officer Lockwood
9 visually inspected the men for weapons and determined that they were not armed.
10 Officer Lockwood had not received a description of the persons suspected of being
11 involved in the shooting and allowed petitioner and Velasco to leave.
12 Subsequently, Officer Ramon Barunda and his partner detained petitioner and
13 Velasco.
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Officer Noel Sanchez found a .22 caliber Jennings handgun on the sidewalk

15 on Main Street just south of Manchester. The police found two spent .22 caliber
16 cartridge casings on the ground in the area of 87th Place. A criminalist determined
17 that the two cartridge casings found at the scene and one of the bullets recovered
18 from Lewis’s body by the coroner had been fired from the .22 caliber Jennings
19 handgun.
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Detective Kirby did not direct anyone to take gunshot primer samples from

21 petitioner, Velasco, or Jaramillo. In Detective Kirby’s experience, tests for
22 gunshot residue were not very reliable.
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Later that morning, Detective Kirby and another detective interviewed

24 Jaramillo. Because he was afraid, and did not want to put Velasco at the scene, or
25 “snitch” on petitioner, Jaramillo initially denied any knowledge of what had
26 happened. Jaramillo testified that he did not see petitioner shoot the Black man.
27 He testified at the preliminary hearing that he told Detective Kirby that petitioner
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1 began shooting the victim with a handgun from a distance of approximately four to
2 five feet and that Velasco was in the car at the time of the shooting. According to
3 Jaramillo, his preliminary hearing testimony was truthful. Jaramillo testified that
4 he “told the detective, per [his] testimony, that [petitioner] . . . shot and killed that
5 African American man.” He denied that he had blamed petitioner to protect
6 Velasco from responsibility for the shooting.
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On cross-examination, Jaramillo acknowledged that he testified at the

8 preliminary hearing that he did not see petitioner shoot anybody. When asked to
9 explain the inconsistency in his preliminary hearing testimony, Jaramillo stated, “I
10 never seen him shoot anybody.” Further on cross-examination, Jaramillo admitted
11 that he went to the house at 87th Place and Wall to purchase rock cocaine and not
12 to purchase marijuana as he had earlier told the police several times and as he had
13 testified at the preliminary hearing and at trial. Jaramillo also admitted that, as he
14 told Detective Kirby, he had been to the drug house 10 times and not two times as
15 he testified. He also admitted that he had gone with Velasco to the drug house 10
16 times, but he had never gone with petitioner.
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Jaramillo testified that initially he gave the police a version of the events in

18 which he was on 87th Street near Main, he did not hear any shots, he did not know
19 that a murder had been committed, and he had been sitting in the driver’s seat of
20 the car drinking a beer. The police told him that if he stuck to that story he would
21 be booked for murder. Asked if he believed that if he changed his story he would
22 be released, Jaramillo responded, “Well, I thought about it, and my best chances
23 were to say the truth.” Jaramillo was never booked for murder and was released
24 shortly after he changed his story. Jaramillo affirmed on cross-examination that it
25 was his testimony that petitioner was the shooter.
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Detective Joseph Kirby testified about his interview with Velasco.3 Velasco

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2 told the detective that he drove to the area of 87th Street between Main and Wall to
3 buy rock cocaine. He and petitioner got out of the car and approached a house to
4 buy rock cocaine.
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Detective Kirby also testified about a video that was played for the jury that

6 showed petitioner in custody in the holding tank at the Southeast Station at 3:00
7 a.m. on August 26, 2011. The holding tank had a window and a door. On the
8 outside of the window was the watch commander, the person in charge of all of the
9 activities at the Southeast Station. The holding tank did not have a toilet or urinal.
10 If a person needed to use the bathroom, he had to notify the watch commander
11 verbally, or by knocking on the holding tank’s window. The video showed
12 petitioner look out the holding tank’s window then approach and urinate on his
13 leather jacket which was in the corner of the holding tank. Petitioner then turned
14 over his jacket and urinated on the other side. Although the video did not show a
15 stream of urine, Detective Kirby testified that he determined that petitioner was
16 urinating on his jacket by the way petitioner stood, petitioner’s motions, and
17 visible pooling urine. Detective Kirby testified that there was a “popular
18 perception” that urine removes gunshot residue from hands or clothes.
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The police took DNA swabs from petitioner, Velasco, and Jaramillo. Those

20 swabs were compared to a DNA swab taken from the .22 caliber Jennings
21 handgun. A criminalist determined that the swab from the handgun contained a
22 mixture of DNA from more than three people. Because there was a mixture of
23 DNA, the criminalist could not conclude that the DNA came from any particular
24 person. The criminalist could, however, determine the probability that a person’s
25 DNA was included within the mixture. According to the criminalist, the
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Velasco asserted his 5th Amendment right to remain silent, and the trial
28 court deemed him unavailable to testify.
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1 “combined probability of inclusion” that petitioner’s DNA fit within the profile of
2 the DNA mixture found on the handgun was one in 8,200. The criminalist
3 explained that under that combined probability of inclusion, if 8,200 people were
4 selected at random, it was probable that one person’s DNA would fit the within the
5 DNA mixture found on the handgun. With respect to Velasco’s DNA, the
6 combined probability of inclusion that his DNA was part of the mixture was one in
7 1,400. The combined probabilities of inclusion for petitioner and Velasco differed
8 because the criminalist looked at 15 locations for petitioner and only 14 for
9 Velasco. The information was insufficient to include or exclude Jaramillo’s DNA.
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III.

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PROCEEDINGS

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On June 8, 2012, following a jury trial, petitioner was convicted of second

13 degree murder (Cal. Penal Code § 187(a)) with firearm enhancements (Cal. Penal
14 Code §§ 12022.53(b)-(d)). LD 1 (Clerk’s Transcript (“CT”)) at 489. On January
15 30, 2013, the trial court sentenced petitioner to forty to years to life in prison. Id.
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Petitioner, represented by counsel, appealed his convictions. LD 3.

17 Petitioner raised three grounds on appeal: (1) insufficient evidence to convict; (2) a
18 sentencing error; and (3) a clerical error. Id. The California Court of Appeal
19 modified the sentence and record, but otherwise affirmed the judgment. LD 6.
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Petitioner then filed a petition for review in the California Supreme Court,

21 presenting the same sufficiency of the evidence claim raised below. LD 7. The
22 California Supreme Court summarily denied the petition for review on July 23,
23 2014. LD 8.
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Petitioner initiated this federal action by filing a Petition for Writ of Habeas

25 Corpus by a Person in State Custody (“Petition”) and a Motion for Stay and
26 Abeyance on November 3, 2015. On November 5, 2015, due to petitioner’s failure
27 to properly execute the Petition, the court dismissed the Petition with leave to
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1 amend.
2

On December 10, 2015, petitioner filed a properly executed First Amended

3 Petition and Motion for Stay and Abeyance pursuant to Rhines v. Weber, 544 U.S.
4 269, 276-79, 125 S. Ct. 1528, 161 L. Ed. 440 (2005) (“Motion for Stay”).
5 Petitioner asserted five grounds for relief in the FAP: (1) there was insufficient
6 evidence to support his murder conviction; (2) the California Supreme Court
7 announced a new rule in People v. Banks, 61 Cal. 4th 788, 189 Cal. Rptr. 3d 208
8 (2015), affecting petitioner’s constitutional rights that should be retroactively
9 applied under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334
10 (1989); (3) ineffective assistance of appellate counsel for failure to challenge his
11 trial counsel’s failure to challenge the sufficiency of the evidence under Section
12 1111 of the California Penal Code; (4) ineffective assistance of appellate counsel
13 for failing on direct appeal to challenge trial counsel’s failure to call a key witness;
14 and (5) the reasonable doubt instruction, CALCRIM No. 220, as presented to the
15 jury, was unconstitutionally vague and ambiguous. Respondent filed an
16 Opposition to the Motion for Stay, arguing the Motion for Stay should be denied
17 because the FAP was untimely and petitioner failed to demonstrate good cause for
18 his failure to exhaust grounds two through five.
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On September 13, 2016, the court concluded the First Amended Petition was

20 timely, but grounds two through five were unexhausted without good cause, and
21 ground two was plainly meritless. The court denied the Motion for Stay, dismissed
22 ground two with prejudice, and dismissed grounds three through five without
23 prejudice.
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Respondent filed an Answer to the FAP on October 12, 2016, and petitioner

25 filed a Reply to the Answer on January 6, 2017.
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IV.

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STANDARD OF REVIEW

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This case is governed by the Antiterrorism and Effective Death Penalty Act

4 of 1996 (“AEDPA”). AEDPA provides that federal habeas relief “shall not be
5 granted with respect to any claim that was adjudicated on the merits in State court
6 proceedings unless the adjudication of the claim –
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(1) resulted in a decision that was contrary to, or involved an unreasonable

8 application of, clearly established Federal law, as determined by the Supreme
9 Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable determination of

11 the facts in light of the evidence presented in the State court proceeding.” 28
12 U.S.C. § 2254(d)(1)-(2) (emphasis added).
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In assessing whether a state court “unreasonably applied” Supreme Court

14 law or “unreasonably determined” the facts, the federal court looks to the last
15 reasoned state court decision as the basis for the state court’s justification. See Ylst
16 v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991);
17 Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the California
18 Court of Appeal’s decision on May 8, 2014 stands as the last reasoned decision on
19 Ground One.
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V.

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DISCUSSION

22 A.

Petitioner Is Not Entitled to Relief on His Insufficient Evidence Claim

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Petitioner argues there was insufficient evidence that he was the shooter so

24 as to support his murder conviction. FAP at 5, Ex. 1. Specifically, petitioner
25 contends his conviction rested almost entirely on the testimony of Jaramillo, but
26 the testimony was unreliable. Id.
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“[T]he Due Process Clause protects the accused against conviction except

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1 upon proof beyond a reasonable doubt of every fact necessary to constitute the
2 crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,
3 25 L. Ed. 2d 368 (1970). The role of a federal court on habeas review is to
4 determine whether, “after viewing the evidence in the light most favorable to the
5 prosecution, any rational trier of fact could have found the essential elements of the
6 crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
7 Ct. 2781, 61 L. Ed. 2d 560 (1979). “The reviewing court must respect the province
8 of the jury to determine the credibility of witnesses, resolve evidentiary conflicts,
9 and draw reasonable inferences from proven facts by assuming that the jury
10 resolved all conflicts in a manner that supports the verdict.” Walters v. Maass, 45
11 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). “‘Circumstantial evidence and
12 inferences drawn from it may be sufficient to sustain a conviction.’” Id. (citation
13 omitted).
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Generally, in applying the Jackson standard, the court looks to the elements

15 of the crime charged under state law to determine what evidence is needed to
16 support a conviction and then turns to the federal question as to whether the state
17 court was objectively unreasonable in its application of Jackson. Jackson, 443
18 U.S. at 324 n.16; Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011); Juan H. v.
19 Allen, 408 F.3d 1262, 1278 n.14 (9th Cir. 2005). But here, petitioner’s claim does
20 not hinge on whether there was sufficient evidence to support each element of the
21 crime. Instead, petitioner argues that there was insufficient evidence showing he
22 was the perpetrator.
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At trial, Jaramillo, under a grant of immunity, testified that he, Velasco, and

24 petitioner drove to a house in South Central Los Angeles to purchase marijuana.
25 LD 2 (Reporter’s Transcript (“RT”)) at 391-92, 396-98. Jaramillo testified that
26 they parked across the street from the house, there were two African American
27 men in front of the house, and petitioner got out of the car and walked across the
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1 street. Id. at 400-01. Jaramillo heard two gunshots and saw one man fall and the
2 other one run away. Id. at 402-03. Jaramillo then testified that petitioner got back
3 in the car and Velasco drove off. Id. at 404-05. Jaramillo convinced Velasco to
4 turn the car around and go back because he did not think it was right to not check
5 on the man who had been shot. Id. at 405-07. Once they arrived back at the house,
6 petitioner and Velasco got out while Jaramillo got into the driver’s seat. Id. at 4067 07. The police then arrived and detained Jaramillo. Id. at 407-08.
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During the examinations, Jaramillo acknowledged inconsistencies with prior

9 statements. Jaramillo admitted that when detained, he initially told Detective
10 Kirby that he was unaware of any shooting and then told him petitioner shot the
11 victim. See id. at 414, 439-40. Then at the preliminary hearing, Jaramillo testified
12 that he did not see petitioner shoot the victim. Id. at 425-26; see CT at 80-82.
13 Jaramillo also admitted that he actually went to the house the day in question to
14 purchase rock cocaine rather than marijuana. RT at 427-28.
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Jaramillo also stated that he was scared to testify at the trial and preliminary

16 hearing. Id. at 473-74; see also id. at 531-32. Jaramillo had received threatening
17 messages warning him not to testify. Id. But Jaramillo testified at the preliminary
18 hearing that he was not scared to testify. Id. at 482.
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The Court of Appeal reasonably determined Jaramillo’s testimony was

20 substantial evidence sufficient for a rational jury to conclude that petitioner
21 committed the murder. See LD 6 at 8. Although petitioner points to significant
22 inconsistencies in Jaramillo’s testimony, at bottom petitioner is asking the court to
23 reinterpret the evidence. But it is the province of the jury to weigh the evidence,
24 assess witness credibility, and resolve evidentiary conflicts. See Bruce v. Terhune,
25 376 F.3d 950, 957 (9th Cir. 2004) (“A jury’s credibility determinations are . . .
26 entitled to near-total deference under Jackson.”) (citing Schlup v. Delo, 513 U.S.
27 298, 330, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)); Walters, 45 F.3d at 1358.
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1 Here, the jury was presented with Jaramillo’s testimony, including all its
2 inconsistencies, and evidently determined his testimony was truthful.
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Moreover, the Court of Appeal reasonably determined there was sufficient

4 evidence independent of Jaramillo’s testimony to support petitioner’s conviction.
5 See LD 6 at 8. A witness had provided the police with a description of the vehicle
6 near the shooting. RT at 191-92. Police officers then spotted a vehicle matching
7 the description parked near the scene of the shooting, saw a door was open, and a
8 person in the driver’s seat. Id. at 191-93. Other police officers then spotted
9 petitioner and Velasco running from near the area where the shooting took place.
10 See id. at 205-06, 210-11. Petitioner’s fingerprints were on a beer bottle found in
11 the car. See id. at 242-43, 251. The gun used in the shooting was found near the
12 location of the crime. See id. at 232, 272-73. Although the criminalist could not
13 conclusively determine whose DNA was on the gun used in the shooting,
14 petitioner’s DNA fit within the profile of the DNA mixture found on the gun, as
15 did Velasco’s. Id. at 338-39; see also id. at 340, 345-46. The criminalist testified
16 that the probability that petitioner’s DNA was included was 1 in 8,200, and the
17 probability that Velasco’s DNA was included was 1 in 1,400. Id. at 338-39. So
18 far, this additional evidence places petitioner at the scene and running from the
19 shooting, and strongly indicates either petitioner or Velasco was the shooter.
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But there was one item of additional evidence that tended to show it was

21 petitioner, and not Velasco, who was the shooter, just as Jaramillo testified. This
22 was a video recording showed petitioner, while in the holding tank, urinating on
23 his leather jacket two hours after the shooting. Id. at 527-28. Detective Kirby
24 testified there is a popular perception that urine removes gunshot residue from
25 clothing. Id. at 305. Taken together, the direct and circumstantial evidence was
26 sufficient for a rational juror to determine petitioner was the perpetrator.
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Accordingly, the Court of Appeal’s finding that there was sufficient

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1 evidence for a rational fact finder to conclude that petitioner was the shooter was a
2 reasonable determination of the facts. Petitioner is therefore not entitled to habeas
3 relief.
4 B.

Petitioner Is Not Entitled to an Evidentiary Hearing

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In his Reply, petitioner requests an evidentiary hearing on his claim. Reply

6 at 2. An evidentiary hearing is not warranted where “the record refutes the
7 applicant’s factual allegations or otherwise precludes habeas relief.” Schrirro v.
8 Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). In this
9 case there are not facts in dispute; the only dispute is whether the evidence was
10 sufficient to convict petitioner. The record shows the Court of Appeal reasonably
11 concluded the evidence was sufficient, and thus precludes habeas relief. As such,
12 petitioner’s request for an evidentiary hearing should be denied.
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VI.

14

RECOMMENDATION

15

IT IS THEREFORE RECOMMENDED that the District Court issue an

16 Order: (1) approving and accepting this Final Report and Recommendation; and
17 (2) directing that Judgment be entered denying the First Amended Petition and
18 dismissing this action with prejudice.
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21 DATED: March 20, 2019
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SHERI PYM
United States Magistrate Judge

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