Raul Tiscareno v. W. L. Montgomery

Filing 25

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Cormac J. Carney re Report and Recommendation (Issued), 21 . IT IS ORDERED THAT: 1) The Report and Recommendation is approved and accepted; 2) Judgment be entered denying the Petition and dismissing this action with prejudice; and 3) The Clerk serve copies of this Order on the parties. The Court declines to issue a certificate of appealability. (kh)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 RAUL TISCARENO, Petitioner, v. W.L. MONTGOMERY, Warden, Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) Case No. LA CV 16-5097 CJC (JCG) ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed: (1) the Petition for Writ of Habeas Corpus (“Petition”), [Dkt. No. 1]; (2) Respondent’s Return to the Petition (“Return”), [Dkt. No. 11]; (3) Petitioner’s Reply to the Return (“Reply”), [Dkt. No. 19]; (4) the Magistrate Judge’s Report and Recommendation (“R&R”), [Dkt. No. 20]; (5) Petitioner’s Objections to the R&R (“Objections”), [Dkt. No. 24]; and (6) the remaining record, and has made a de novo determination. Petitioner’s Objections generally reiterate the arguments made in his Reply, and lack merit for the reasons set forth in the R&R. There is one issue, however, that warrants brief discussion here. In his Objections, Petitioner opposes the R&R’s conclusion that the evidence amply supported the jury’s finding that Petitioner formed the requisite intent to commit the robbery, and therefore contends that the evidence was insufficient to find that he 1 1 was a “major participant” in the murder — a finding of which is necessary for the 2 application of robbery-murder special circumstances. (Objections at 2-3); see also Cal. 3 Penal Code § 190.2(d). In support of his claim, Petitioner relies on People v. Banks, 4 61 Cal. 4th 788, 802 (2015), which held that a defendant who was not at the scene of 5 the murder and who was, at most, a getaway driver could not be considered a “major 6 participant” in the murder. Id. at 805-07. 7 This reliance is misplaced. 8 As a general matter, “every person, not the actual killer, who, with reckless 9 indifference to human life and as a major participant” aids or abets the crime may be 10 convicted of special-circumstance murder.” Cal. Penal Code § 190.2(d). In Banks, the 11 California Supreme Court held that “major participation” is found where a defendant is 12 “actively involved in every element” of the robbery “and was physically present during 13 the entire sequence of criminal activity culminating in the murder.” See Banks, 61 Cal. 14 4th at 802 (citing Tison v. Arizona, 481 U.S. 137, 158 (1987)). 15 Here, and as the R&R explained, the victim had told her close friend that 16 Michael Bonfiglio (“Bonfiglio”) wanted her laptop, but that she was not going to give 17 it to him. (Lodg. No. 2, Reporter’s Transcript (“RT”) at 2110-2112, 2129.) 18 Petitioner’s friend testified that on the day before the murder, Bonfiglio and Daniel 19 Martinez (“Martinez”) tried to convince a third person to join a plan, the details of 20 which Petitioner’s friend did not know. (Lodg. No. 1, Clerk’s Transcript (“CT”) at 21 431, 434, 440-42.) After the third person refused, Petitioner volunteered to join the 22 plan. (CT at 432-33.) The next morning, a witness saw Petitioner, Bonfiglio, and 23 Martinez in the car with the victim just minutes before she was found dead in the 24 driver’s seat, with a single gunshot wound to the back of her head. (RT at 1875-85, 25 1892-93, 2496-98); see also People v. Tiscareno, 2015 WL 1346472, at *1, *2 (Cal. 26 Ct. App. Mar. 24, 2015). When Petitioner was arrested, the victim’s laptop was found 27 on his bed. (RT at 2221-22, 2728.) 28 2 As the California Court of Appeal correctly noted, the three men could have 1 2 easily taken the victim’s laptop because she was outnumbered and unarmed, but 3 instead, they forced her to accompany them away from her apartment, and shot her in 4 the back of the head. See Tiscareno, 2015 WL 1346472, at *5; (RT at 118-19, 1846- 5 49, 1875-82, 1893, 1926-29, 2127-28, 2179-81). Based on this evidence, a jury could 6 have reasonably concluded that Petitioner, Bonfiglio, and Martinez intended to rob the 7 victim of her laptop and to kill her, and that Petitioner was “actively involved in” and 8 “physically present during the entire sequence of criminal activity culminating in the 9 murder.” See Banks, 61 Cal. 4th at 802; see also People v. Abilez, 41 Cal. 4th 472, 10 506-07 (2007) (“[T]he intent required for robbery . . . is seldom established with direct 11 evidence but instead is usually inferred from all the facts and circumstances 12 surrounding the crime.”) (citation omitted). Put another way, the record contains 13 substantial evidence to support the finding that Petitioner was a major participant and 14 assisted in the victim’s murder with the intent to eliminate the victim as a witness. 15 Therefore, the evidence is sufficient for the application of robbery-murder special 16 circumstances. 17 18 // 19 20 // 21 22 // 23 24 // 25 26 // 27 28 // 3

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