Archives for posts with tag: california

As mentioned previously, “ninja rocks“, are a tool of automobile burglars that is used to break car windows. Wikipedia explains that “they can quickly and almost silently fracture the glass windows on most cars”. In the following 2012 case opinion on a petition for writ of habeas corpus from an incarcerated person in California, the defendant possessed “ninja rocks”. The writ was denied.

CHESTER BROWN, Petitioner,
v.
KATHY PROSPER, Warden, Respondent.

No. C 09-04870 SBA (PR)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

June 20, 2012, Decided
July 24, 2012, Filed

Opinion by US District Judge Saundra Brown Armstrong:

An Alameda County jury convicted Petitioner of two counts of first degree burglary and three counts of receiving stolen property

The statement of facts quoted from the California Court of Appeal:

Pleasanton Police Officer Mike Murazzo responded to the Bishops’ call, and stopped defendant’s Buick at 7:05 a.m. on Longview Drive near the intersection with Foothill Drive. Murazzo positively identified defendant in court. When he was stopped, defendant was wearing a long black leather jacket with a pair of scissors protruding from a pocket. Defendant’s pockets also contained vice-grip pliers and two screwdrivers. On the front seat of defendant’s car were “ninja rocks,” broken pieces of spark plug porcelain used by auto burglars to break car windows with a minimum amount of noise.

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MARVIN BRYANT, Petitioner,
v.
T. FELKER, Warden, Respondent.

No. C 06-0005 CW (PR)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

2011 U.S. Dist. LEXIS 9091

Decided January 24, 2011
Opinion by District Judge Claudia Wilken:

Petitioner waived his right to a jury trial and was convicted of attempted murder, residential robbery, assault with a firearm, and residential burglary. (Resp. Memo. at 1.) On May 2, 2003, the trial court sentenced Petitioner to twenty-eight years. (Second Amended Petition (SAP) at 2.) The trial court found true the allegations of personal use of a firearm, intentional discharge of a firearm, and infliction of great bodily injury.

Quoting from The California Court of Appeal description of the facts:

Defendant was released because his clothing did not match the dispatch description of Raman’s attacker.

but

While being transported to the hospital Raman told police about the argument between Turner and Pamela, that three men had come to the door and he was not sure he could identify his attacker. He did say his attacker wore black clothing and a black beanie

and

Testifying on his own behalf, defendant admitted: vandalizing a car at age 14, an auto theft conviction at age 16, a 1997 arrest for possessing a “Ninja-rock,” used to break car windows, a 1998 arrest for stealing a video game, and a 1999 allegation of domestic violence by his girlfriend. Defendant said he was at Turner’s apartment when she came home upset that Pamela had called her a “black bitch.” He admitted he went with Westbrook and two other men to Pamela’s apartment to demand an apology. He said Westbrook, Raman and Pamela argued outside the Khannas’s apartment. Defendant denied saying anything or threatening the Khannas. He also denied returning to the Khannas’s apartment and having any involvement in the crimes committed.

Holding:

the petition for a writ of habeas corpus is denied.

Affirmed by, Bryant v. Felker, 464 Fed. Appx. 562, (9th Cir. Cal. 2011)

This habeas petitioner was conviction by court-martial of murder with a Ninjatō sword and sentenced to life in prison. The federal courts here affirm the military court judgement.

ninja to sword

CURTIS A. GIBBS, Petitioner,
v.
J. E. THOMAS, Respondent.

1:07-cv-01563-SKO-HC

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

2010 U.S. Dist. LEXIS 122152

Decided November 15, 2010, filed November 18, 2010.

Opinion by US Magistrate Judge Sheila K. Oberto:

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

This case opinion was affirmed by the Ninth Circuit in January 2012, memorandum opinion before Judges Leavy, Tallman and Callahan.

In this case a person, Sullivan, was shot and killed by the police in an apartment search. The police lost summary judgment at district court and appealed. On appeal the Ninth Circuit affirmed. But in dissent Judge Wu refers to a “ninja” knife

KATHLEEN ESPINOSA, individually and as personal representative of the Estate of decedent Asa Sullivan; ASA SULLIVAN; A. S., by and through his Guardian ad Litem; NICOLE GUERRA, Plaintiffs-Appellees,
v.
CITY AND COUNTY OF SAN FRANCISCO; HEATHER FONG, in her capacity as Chief of Police, Defendants, and JOHN KEESOR, Police Officer; MICHELLE ALVIS, Police Officer; PAUL MORGADO, Police Officer, Defendants-Appellants.

No. 08-16853

UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT

598 F.3d 528

Filed – March 9, 2010

Before Judges: Procter Hug, Jr. and Richard A. Paez, Circuit Judges, and George H. Wu, * District Judge.
* The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.

Opinion by Judge Hug; Partial Concurrence and Partial Dissent by Judge Wu.

In the opinion of District Judge Wu, sitting on the Court of appeal by designation, concurring in part and dissenting in part:

I agree with the majority that the district court properly denied summary judgment as to the defendant officers’ claim of qualified immunity in regards to their entering and searching the apartment. However, I disagree with the Opinion’s resolution of the qualified immunity question in the contexts of the unreasonable force and provoking a confrontation issues.

noting:

Martin was searched for weapons and a four inch “ninja” knife was located in his back pocket. It did not appear to have any blood on it.

concluding:

I dissent from the majority’s affirmation of the district court’s denial of the defendant officers’ motion for summary judgment on the basis of qualified immunity as to the issues of excessive force and provoking a confrontation.

It is interesting to note that it is the judicial opinion in favor of the police that refers to the “ninja” knife. What makes a knife a ninja knife… because it is quoted maybe it is testimony but it is uncited in Judge Wu’s dissent.

These pro se petitions by convicted murderers are denied. The facts include reference to a “black ninja mask” worn as they shot and killed from a Saturn car. This is two opinions for the two co-defendants, both authored by the same Magistrate Judge.

JAMEL LARON YOUNG, Petitioner,
v.
MICHAEL MARTEL, Warden, Respondent.

Case No. CV 09-02804 DSF (AN)

AND

JAMES KAMPLY MORRIS, Petitioner,
v.
MR. FRANCISCO JACQUEZ, Respondent.

Case No. CV 09-00263 DSF (AN)

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA,
WESTERN DIVISION

2010 U.S. Dist. LEXIS 35782
AND
2010 U.S. Dist. LEXIS 35805

Decided February 4, 2010
Opinions by Arthur Nakazato, US Magistrate Judge:

On August 23, 2006, petitioner[s] Jamel Laron Young and his co-defendant, James Kamply Morris, were convicted of one count of first degree murder, in violation of CAL. PENAL CODE § 187(a), and three counts of attempted murder, in violation of CAL. PENAL CODE § 664/187(a), following a jury trial in the Los Angeles County Superior Court (case no. MA028244).

and

On September 21, 2006, Petitioner [Morris] was sentenced to an indeterminate state prison term of 25 years to life plus one year on count one, a consecutive term of seven to life plus one year on count two, and concurrent terms of life plus one year on counts three and four.

On November 30, 2006, Petitioner [Young] was sentenced to an indeterminate state prison term of 25 years to life plus one year on count one, a consecutive term of seven years to life plus one year on count two, and concurrent terms of life plus one year on counts three and four.

From facts established at trial in people’s evidence:

About 11:30 p.m., Morris put on a black ninja mask. Young drove the Saturn slowly with its headlights off and stopped in front of the Palmdale home. The driver’s side of the Saturn was facing the home. Morris sat on the window sill of the car’s passenger door and shot over the Saturn about four or five times. Cole was lying down in the backseat.

Jonte Stewart was on the porch of the Palmdale home when the shots were fired. He was fatally shot in the head

The opinion finds no error and directs “judgment be entered dismissing this action with prejudice”.

Recall NinjaLaw#70 = “Murder-for-hire by Los Angeles Ninja Hitman”. As described in that prior post, the case was appealed. Both the district court and appellate opinion were described in the prior post and so this post is a placeholder to keep this 80th NinjaLaw case in sequence.
los angeles

In this case of habeas petition on Los Angeles murder-for-hire, a “Ninja” was convicted based on out of court statements of an unavailable convicted co-conspirator. This is a 2008 appeal on a 1990 conviction of the ninja hitman. The murders in this case have been extensively covered in the press, see for example this 1988 Los Angeles Times article referring to the “Ninja Murders”. And see detailed narrative at TruTv.com, “The Ninja Murder Case” BY Tori Richards

ANTHONY JOSEPH MAJOY, Petitioner,
vs.
ERNEST ROE, Warden, Respondent.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
Case No. CV 98-6956-SVW (JWJ); 651 F. Supp. 2d 1065; 2008 U.S. Dist. LEXIS 112110

Decided March 5, 2008, Opinion by United States Magistrate Judge Jeffrey Johnson

STATEMENT OF FACTS

In 1983, brothers Neil and Stewart Woodman hired hitmen Steven and Robert Homick (also brothers) to murder the Woodmans’ parents. (Resp. Exh. 107, pp. 21-23, 26-27, 36-49, 63-64.) [FN2] The crime was to take place on the night of September 25, 1985, Yom Kippur. (Resp. Exh. 100, pp. 60, 100, 102-03.) The Woodman’s motive was to gain an advantage in a family business dispute (Resp. Exh. 107, pp. 15-21) and to collect on their mother’s $ 500,000 insurance policy — money they needed to pay off business debts (Id. at 15-18).

Late in the evening of September 25, 1985, the Woodman parents were shot and killed in the parking garage of their Brentwood apartment complex. Roger Backman, an independent witness, saw a black-clad individual, later referred to as the “Ninja,” fleeing the scene of the crime. [FN3]

== Footnotes ==
FN2 Unless otherwise specified, all citations to exhibits refer to those introduced by the parties at the evidentiary hearing.
FN3 The assailant was termed the “Ninja” after Mr. Backman described the suspect as wearing a black hooded outfit.

At petitioner’s trial, the prosecution argued that petitioner was the “Ninja” observed by Robert Backman.

After petitioner’s conviction, Stewart Woodman confessed his guilt in exchange for a promise that the prosecution would not seek the death penalty against him.

Here on appeal:

Petitioner argued, inter alia, that the following “new evidence” supported his procedural claim of actual innocence: Michael Dominguez, a key prosecution witness, recanted his testimony implicating petitioner; the police investigation involved questionable methods; the testimony of Robyn Lewis was impeached; and the testimony of Roger Backman likely excludes petitioner as the “Ninja.” (Proposed Findings, pp.18-47.)

Particularly,

petitioner points to the testimony of Roger Backman as evidence that petitioner could not have been the “Ninja.” As detailed above, Mr. Backman described the hooded assailant as resembling Michael Dominguez. While this evidence may suggest that petitioner was not the “Ninja” who came face to face with Mr. Backman, it does not prove that petitioner is innocent of the murders of Gerald and Vera Woodman. It is undisputed that the murders were carried out by more than one individual. In fact, Mr. Backman testified that while he saw the “Ninja,” he heard another individual running through the bushes. Thus, Mr. Backman’s description of the “Ninja” does not support a finding that petitioner was not a participant in the murders.

The Court dismisses the petition, finding that the petitioner cannot show his actual innocence. Ironically, the co-conspirator’s self-interested claims were credible for conviction but the his recantation is not credible for appeal.

None of the other “new” evidence presented by petitioner, without the support of a credible recantation by Dominguez, is sufficient to meet petitioner’s procedural claim of actual innocence.

This opinion was then supplemented and adopted by the District Court Judge Stephen Wilson, August 4, 2009:

ANTHONY JOSEPH MAJOY, Petitioner,
v. ERNEST ROE, Warden, Respondent.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
CV 98-6956 SVW (JWJx)
651 F. Supp. 2d 1065; 2009 U.S. Dist. LEXIS 70762

Petitioner contends that Dominguez’s recantation should be believed because Dominguez’s initial testimony was the result of police coercion by the Detectives. In his objections, Petitioner claims that the SSRR not only failed to adequately consider the effect of the alleged police coercion on jurors, but goes so far as to “sanction[] egregious police misconduct.” (Obj., at 16.) Specifically, Petitioner insists that the following evidence of Detective Holder’s unethical character was not presented to the jury in Petitioner’s case: (1) Detective Holder suborned perjury of a criminal informant (Siegel) at the first preliminary hearing for defendant Woodman; (2) the Detectives placed a photograph of Petitioner in front of Dominguez during the initial interview “so that [Dominguez] would identify [Petitioner] as the Ninja” (Id.); (3) Detective Holder called Deputy District Attorney John Krayniak a “wimp prosecutor” when Krayniak refused to put untruthful informant Sidney Storch on the witness stand (10/5/04 ERT 89); (4) the Detectives secretly entered into an undisclosed book rights agreement, presumably about the trial; and (5) after leaving the LAPD, Detective Holder obtained a court appointment as a phony expert witness or private investigator in the Woodman trial. (Obj., at 16.)

While Petitioner’s evidence regarding the Detectives may speak to the negative qualities of Detectives Holder and Crostley, and perhaps even suggest that they used questionable interviewing tactics, this evidence does not alter the Court’s conclusion with regard to the credibility of Dominguez’s new testimony. This evidence regarding the Detectives does not allow Petitioner to meet the “extraordinary” burden of a Schlup claim for two reasons. First, the jury watched the interview between the Detectives and Dominguez at trial and, as a result, the jury was given the opportunity to evaluate whether Dominguez was coerced. This Court must examine “new reliable evidence” while evaluating a Schlup claim. 513 U.S. at 324 (emphasis added). Thus, because the placement of the photographs was presented to the jury at trial, Petitioner’s objection standing alone would not cause a new jury to have reasonable doubts. Only Petitioner’s “new” evidence – such as the book deal – could be used in connection with a Schlup claim. Id.

Second, even though Petitioner identifies some other evidence, because Dominguez himself is not credible, this evidence would not cause all reasonable jurors to doubt Petitioner’s conviction. Had the Magistrate concluded that Dominguez was credible during the evidentiary hearings, the evidence of the Detectives’ negative character may have supplemented the Magistrate’s finding that Dominguez was credible. But given that the Magistrate found that Dominguez was not credible, the evidence of the Detectives’ character would not affect reasonable jurors viewing Dominguez’s recantation.

And:

E. Roger Backman’s Testimony

On the night of the murders, Roger Backman witnessed a black-clad “Ninja” outside the murder scene. The prosecutors used this information to claim that Petitioner was the Ninja. At Neil Woodman’s 1994 trial, however, Mr. Backman described the Ninja in such a way “arguably as not only to exclude the middle-aged [Petitioner,] but to implicate the youthful Dominguez.” [FN4] Majoy, 296 F.3d at 774.

== Footnotes ==
FN4 Mr. Backman testified that he identified Dominguez as the Ninja because it was the “most logical[]” choice based on Dominguez’s age, skin tone, and build. Majoy, 296 F.3d at 775.
===

In the SSRR, the Magistrate stated that even if Petitioner was not the Ninja, “Mr. Backman . . . heard another individual running through the bushes. Thus, Mr. Backman’s description of the ‘Ninja‘ does not support a finding that petitioner was not a participant in the murders.” (SSRR at 32-33.) Petitioner objects to the Magistrate’s finding that Petitioner could have been a “noise in the bushes.” (Obj., at 20.) Though the Court agrees with the Magistrate’s analysis of Mr. Backman’s testimony, the SSRR could arguably be interpreted as applying the incorrect standard of review by reaching what could be construed as a factual conclusion. This Court will therefore determine de novo how Mr. Backman’s testimony would affect reasonable jurors. See Majoy, 296 F.3d at 776.

Although Mr. Backman’s 1994 testimony might support Petitioner’s actual innocence claim, the Court concludes that this evidence would not have such an effect on reasonable jurors such that Petitioner would meet the Schlup burden. First, as with Ms. Lewis’s testimony, the California Court of Appeal did not give Mr. Backman’s testimony much weight. The Court of Appeal decision thoroughly analyzed the evidence, and the Court generally agrees with the Court of Appeal’s analysis. After listing the substantial corroborating evidence implicating Petitioner, the Court of Appeal stated: “Finally, independent corroboration [by Backman], no matter how slight in value it might appear to be when standing alone, implicated [Petitioner] in the conspiracy and murders.” People v. Majoy, No. B052619, 38 (Cal.Ct.App. Jan. 27, 1997). As the Court of Appeal decision illustrates, Petitioner’s conviction was based on ample corroborating evidence, which included Mr. Backman’s testimony, even though Mr. Backman’s testimony was of “slight” value. Because Mr. Backman’s testimony was of such slight value, this evidence would not have swayed reasonable jurors to such an extent to satisfy the Schlup actual innocence standard.

Second, in discussing Mr. Backman’s 1994 testimony, the Ninth Circuit stated that “Backman identified . . . the ‘Ninja‘ in such a way arguably as . . . to exclude the middle-aged [Petitioner].” Majoy, 296 F.3d at 774 (emphasis added). Though Mr. Backman’s statements “arguably” excluded Petitioner as the Ninja, there was nothing conclusive about his testimony at the subsequent trials. Mr. Backman admitted he only saw a small part of the Ninja‘s face “between . . . just above [the Ninja‘s] eyebrows and just below the tip of the nose” and that he therefore could not conclusively identify the man. Majoy, 296 F.3d at 775. Mr. Backman’s qualified statements would not cause all reasonable jurors to doubt Petitioner’s conviction.

Even assuming Mr. Backman conclusively exonerated Petitioner as the Ninja, without something more, such as substantial evidence of police coercion or clear reliability of Dominguez’s recantation – both of which are lacking – Petitioner cannot reach the standard that “no reasonable juror would have found [P]etitioner guilty beyond a reasonable doubt.” Majoy, 296 F.3d at 776.

Because the Court generally agrees with the California Court of Appeal that Mr. Backman’s identification of the Ninja was of little import in upholding Petitioner’s conviction, and because Mr. Backman did not conclusively exonerate Petitioner as the Ninja, Petitioner has failed to meet the heavy burden of a Schlup actual innocence claim.

Concluding:

Roger Backman could not conclusively prove Petitioner was not the Ninja; and, most importantly, Dominguez’s recantation lacked credibility. Because the Ninth Circuit remanded to this Court to determine the credibility of Dominguez’s recantation, and because this Court has determined it was not credible, Petitioner’s Schlup claim must fail. Accordingly, the Court adopts the Magistrate’s SSRR.

NinjaLaw has already posted about three prior mentions of the Teenage Mutant Ninja Turtles in Federal Court opinions but it was in 1994 that for the first time, a Federal Court opinion was actually involving them as intellectual property in dispute.

MIRAGE STUDIOS, a Massachusetts general partnership, Plaintiff, v. WENG C. YONG, MERRY M. YONG, DENNIS C.M. LOW and DOES 1-5 inclusive, dba TAI FUNG TRADING; et al., Defendants.
No. C-93-2684-VRW
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
1994 U.S. Dist. LEXIS 5618

The opinion is by Judge Vaughn R. Walker. You may recall he is also the judge who recently ruled that California’a Proposition 22 was unconstitutional in case Perry v. Schwarzenegger about gay marriage case.

Written April 29, 1994:

On July 15, 1993, Mirage Studios (“Mirage”) filed this action for copyright and trademark infringement against a group of thirty-four retailers, distributors and manufacturers, alleging that each of the named defendants has infringed and threatens to further infringe upon Mirage’s copyrighted and trademarked “Teenage Mutant Ninja Turtles.”

I presume this was mostly for infringing tee-shirts. And as is typical, the copyright holder asked for maximum damages, in this case $10,000 but Judge Walker found no evidence of any such actual damages and ordered only $500 per defendant (34×500 is $17,000). Also the Judge ordered attorney’s fees of “$780 in attorney fees and $40 in service costs per defendant” – that $780 is the attorney’s bill of “5.2 hours (at $150 per hour)”.

The Court also chides the defendants who did not answer the complaints suggesting that they could have more easily settled the case in advance, but I wonder because attorney fees to answer could only have increased costs.

So this is the first time TMNT is actually directly involved in a Federal Court opinion. But recall the previous NinjaLaw posts about the prior tangential mentions the characters:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

Don’t worry, there’s more to come too.

NinjaLaw blog is primarily briefing “ninja” in Federal Court opinions but today a brief report of some ninja news.

First, Ninja Squirrels spotted in Florida:
ninja squirrels

Across the country, Reuters reports, “Ninjas Rob Medical Marijuana Deliveryman in California” :

The masked ninjas confronted the deliveryman outside an apartment building in West Covina, Calif., about 20 miles east of Los Angeles, KNX radio reports. The ninjas used white batons called tong fa to intimidate the deliveryman, who dropped his bag of marijuana and cash and ran off, police said.

The ninja robbers remain on the loose.

tonfa

Meanwhile on the other side of the world, there are “ninja” but don’t dare call them “assassins” – “Iran suspends Reuters over female ninjas headline”:

Officials in Tehran have suspended the bureau of the international news agency Reuters after one of its headlines described Iranian female ninjas as assassins.

Iran’s ministry of culture and Islamic guidance has also asked all Reuters’s 11 staff in Tehran to hand back their press accreditations and stop working for the agency.

Acknowledging its error, Reuters reported that its headline “Thousands of female Ninjas train as Iran’s assassins” had been corrected to read “Three thousand women Ninjas train in Iran”.

The BBC writes on the Iran-Reuters-Ninja story:

The BBC’s James Reynolds, who himself reports from London, says the few journalists who are still allowed to work in the country [Iran] now find that a single word out of place can cost them their credentials.

And once again Ninja Squirrels:
ninja squirrels