Jose De Jesus Cardenas v. George Jaime

• Court: District Court, C.D. California
• Decided: June 9, 2021
• Docket: 2:20-cv-02798
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE DE JESUS CARDENAS, Case No. CV 20-2798-DOC (PD)

12 Petitioner, ORDER ACCEPTING 13 v. FINDINGS, CONCLUSIONS, 14 GEORGE JAIME, AND RECOMMENDATION OF UNITED STATES 15 Respondent. MAGISTRATE JUDGE 16

18 On April 15, 2021, the United States Magistrate Judge issued a Report 19 and Recommendation (“Report”), recommending that Petitioner’s Petition for 20 Writ of Habeas Corpus be denied and that this action be dismissed with 21 prejudice. [Dkt. No. 16.] On May 17, 2021, Petitioner filed his Objections. 22 [Dkt. No. 17.] 23 In his Objections, Petitioner asserts one argument for the first time.1 24 Petitioner contends that the Magistrate Judge erred in relying on Petitioner’s 25 trial testimony to conclude that the alleged error in allowing the prosecution 26 1 The Court exercises its discretion to consider the argument. See Brown v. Roe, 279 27 F.3d 742, 744-45 (9th Cir. 2002) (district court has discretion, but is not required, to 28 consider claims presented in party’s objections to magistrate judge’s report and 1 to amend the information during trial to add an assault with a deadly weapon 2 count was harmless. According to Petitioner, had he known from the outset of 3 trial that the prosecutor was going to pursue an assault charge, he would not 4 have testified but, instead, investigated the victim’s character for violence to 5 show that he – not Petitioner – started the altercation underlying Petitioner’s 6 conviction. Petitioner further maintains that opting against testifying and 7 relying on evidence of the victim’s character for violence would have avoided 8 “the proverbial ‘swearing contest’” between the victim, who was a “family 9 man” and a “former police officer candidate,” and Petitioner, who was “an ex- 10 convict charged with violent crimes.” [Dkt. No. 17 at 8-9.] 11 This objection is not well-taken because it is based on speculation 12 regarding the existence of evidence of the victim’s purported character for 13 violence. Indeed, Petitioner points to no evidence suggesting that there was 14 any reason to believe that the victim was known to be a violent person, let 15 alone any evidence that would have been admissible at trial. See James v. 16 Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”); 17 Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (habeas relief not warranted 18 where claims for relief are unsupported by facts). 19 Moreover, even if such evidence had existed, there is no reason to 20 believe that the jury would have concluded that the victim initiated the 21 altercation. On the contrary, the uncontested testimony at trial showed that 22 the victim was alone, whereas Petitioner was accompanied by three other 23 people. The victim also testified that Petitioner was armed and threatened to 24 “blast” the victim, testimony that was largely corroborated by the discovery of 25 a revolver and ammunition in Petitioner’s car after he was arrested.2 26

27 2 The victim testified that he was set upon by Petitioner and one of his three 28 companions and that both Petitioner and his companion were armed. If Petitioner 1 Finally, the uncontested testimony concerning Petitioner’s actions after 2 the altercation undercuts the idea that the victim was the aggressor. Indeed, 3 when the victim fled the scene of the altercation, Petitioner and his three 4 companions chased after him. Although that act was not incompatible with 5 the victim being the aggressor, it does not support that conclusion. When 6 considered with the evidence that Petitioner was armed and that the victim 7 was outnumbered, it strongly suggests that Petitioner was the aggressor, as 8 the victim testified – testimony that would have been unrebutted had 9 Petitioner not testified in his defense.3 10 ACCORDINGLY, IT IS ORDERED: 11 1. The Report and Recommendation is accepted. 12 2. Judgment shall be entered consistent with this Order. 13 3. The clerk shall serve this Order and the Judgment on counsel or 14 parties of record. 15 16 DATED: June 9, 2021 17 DAVID O. CARTER 18 UNITED STATES DISTRICT JUDGE

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26 3 Prior to filing his Objections, Petitioner argued that the unspecified evidence of the victim’s character for violence and for “picking fights” would have lent credibility to 27 Petitioner’s account that the victim “park[ed] his car . . . and yell[ed] out his 28 window.” [Dkt. No. 1-1 at 11.] But if Petitioner had not testified, the jury would not