The opinion of the court was delivered by: WEIGEL
STANLEY A. WEIGEL, UNITED STATES DISTRICT JUDGE
Petitioner James Hudson, a state prisoner, pled guilty in Marin County Superior Court to two counts of rape, one count of oral copulation, one count of attempted murder in the second degree, and one count of kidnapping. He was sentenced to state prison for a term of twenty-five years.
Petitioner seeks habeas corpus relief from this Court, pursuant to 28 U.S.C. § 2254, on the grounds that he was improperly sentenced under California Penal Code Section 667.6(d) to (1) two full, consecutive terms for rape, and (2) a full, consecutive term for attempted murder.
I. Propriety of Sentencing Under Cal. Penal Code § 667.6(d)
Petitioner contends that he was improperly sentenced under California Penal Code Section 667.6(d) to two full, consecutive terms for rape. Section 667.6(d) mandates that a sentencing court impose full, consecutive sentences when a defendant has sexually assaulted a victim on "separate occasions."
The state court found that petitioner had raped the victim on two occasions. Petitioner asserts that the two counts of rapes occurred on one occasion. If petitioner's assertion is correct, the state court had the discretion to sentence petitioner under Section 667.6(c) or California Penal Code Section 1170.1, but not under Section 667.6(d). Under Section 667.6(c) or Section 1170.1, the judge would have had a variety of sentencing options. When a court fails to sentence within its informed discretion, a defendant's fourteenth amendment right to due process is violated. United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972). Therefore, if the state court erred in its in finding that Section 667.6(d) was applicable, then petitioner was deprived of his fourteenth amendment right to due process.
The California Supreme Court addressed the meaning of "separate occasions" under Section 667.6(d) in People v. Craft, 41 Cal. 3d 554, 224 Cal. Rptr. 626, 715 P.2d 585 (1986).
The court explained:
subdivision [667.6](d) only applies to offenses against the same victim between which the perpetrator temporarily lost or abandoned the opportunity to continue his attack: such opportunity is lost when the victim becomes free of any ongoing criminal activity; it is abandoned when the offender keeps the victim within his control but engages in some significant activity unrelated to continuing his attack.
Craft, 41 Cal. 3d at 561, 224 Cal. Rptr. at 629, 715 P.2d at 588.
Petitioner denies that he abandoned his opportunity to continue his attack on the victim. He contends that the trip to recover the cocaine was a pretext for moving the victim to a more secluded area where he could continue his assault without detection. Petitioner asserts that since he did not search for the cocaine, he did not undertake a significant activity unrelated to his sexual assault on the victim. He maintains that his version of these facts is supported by the record.
Careful review of the transcript of the victim's testimony at the preliminary hearing reveals that the petitioner did make the statement to the victim that they were going to the Headlands to recover cocaine; that he did drive the victim to that location; and that he did lead the victim around the grounds before attacking her. The record does not support respondent's allegation that petitioner actually searched for the drugs upon arriving at the Headlands.
Under Craft, whether the two counts of rape occurred on separate occasions is a fact-driven determination. The state court found that the testimony established two occurrences of rape. In reviewing a petition for writ of habeas corpus, a federal court must determine whether the state court's findings of fact are fairly supported by the record as a whole. This Court must make an independent review of the record to make this determination. If the findings of the state court are fairly supported by the record, they are presumed correct. 28 U.S.C. § 2254(d) (8); see also Townsend v. Sain, 372 U.S. 293, 312-313, 316, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1962); Richmond v. Ricketts, 774 F.2d 957, 961-962 (9th Cir. 1985). The Ninth Circuit has held that when a "question of fact has been adjudicated in the state court proceedings, the district court may rely on the state court's finding providing it first examines the state court record and satisfies itself that there is no 'vital' flaw in the state court's adjudication." Linden v. Dickson, 287 F.2d 55, 58 (9th Cir. 1961).
The crucial determination is whether the state court's finding of two separate occasions is vitally flawed by a lack of sufficient evidence. This Court finds the fact that petitioner announced his intent to locate his cocaine and drove to the proclaimed site sufficient to establish that he undertook a significant activity unrelated to the sexual attack. Therefore, the state court's finding of two separate occasions is supported by the record. The ...