Joshua Gonzales v. Connie Gipson

FILED

NOT FOR PUBLICATION

AUG 11 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSHUA JOEL ZAMORA GONZALES, No. 13-56498

Petitioner - Appellant, D.C. No. 5:12-cv-00862-BRO-

PLA

v.

CONNIE GIPSON, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted December 7, 2015 Pasadena, California

Before: PREGERSON, D.W. NELSON, and CALLAHAN, Circuit Judges.

Joshua Joel Zamora Gonzales appeals the denial of his federal habeas

petition, challenging his conviction for three counts of attempted murder and one

count of shooting from a motor vehicle. We have jurisdiction pursuant to

U.S.C. § 2253, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court did not err in denying Gonzales’s petition. Viewed in a

light most favorable to the prosecution, the evidence presented at trial allowed the

jury to infer that…

MEMORANDUM *

Joshua Joel Zamora Gonzales appeals the denial of his federal habeas petition, challenging his conviction for three counts of attempted murder and one count of shooting from a motor vehicle. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

The district court did not err in denying Gonzales’s petition. Viewed in a light most favorable to the prosecution, the evidence presented at trial allowed the jury to infer that Gonzales was not only present, but that he was the shooter. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

The evidence presented at trial reflected that: (1) Gonzales and two other individuals were in a car in the area at the time of the shooting; (2) Gonzales was seated in the backseat of the car he was in; (3) one person shot from the back seat of the car in question and a second person shot from over the hood; (4) two different caliber shell casings were found at the scene; (5) Gonzales had been wearing a baseball cap featuring the Pirates “P” logo in support of the Playboyz gang that evening; (6) a person in the backseat of the car in question was wearing a baseball cap; (7) there was a dispute…

dissenting:

I dissent. Joshua was convicted for a crime that occurred when he was 17 years old. He was investigated by a detective who, during preliminary proceedings, twice put incriminating words into Joshua’s mouth, words he never spoke. Joshua was convicted based on evidence that, as the magistrate judge noted, was “far from overwhelming.” In fact, two witnesses explicitly stated, one with complete certainty, that Joshua was not the shooter.

*402 Joshua was sentenced to a staggering term of 86 years and 8 months to life, including three 25-year mandatory gang enhancements. Because Joshua was just 17 when the crime was committed, California law now entitles him to a youth offender parole hearing no later than his twenty-fifth year of incarceration. See Cal. Penal Code § 3051 (b)(3); People v. Franklin, 63 Cal.4th 261, 268 , 202 Cal.Rptr.3d 496 , 370 P.3d 1053 (2016). This provides little solace for a young man facing, what very well could be, a life behind bars for a crime in which no one was killed.

For these reasons, I dissent.