Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PEREZ v. BUTLER

October 3, 2005.

Carlos Albert Perez, Petitioner,
v.
D.K. Butler, Warden, Respondent.



The opinion of the court was delivered by: JEFFREY WHITE, District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

Carlos Albert Perez, a state prisoner incarcerated at Folsom State Prison, has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. On July 15, 2002, Judge Charles R. Breyer issued an order to show cause (docket no. 2). On November 13, 2002, Judge Breyer granted Respondent's motion to dismiss in part and granted Petitioner's motion to amend the petition, reinstating the petition as to four claims (docket no. 8). On January 13, 2003, Respondent filed points and authorities as well as the answer to the petition for writ of habeas corpus (docket no. 10, 11). On January 14, 2003, the case was reassigned to this Court (docket no. 13). On March 17, 2003, Petitioner filed a traverse (docket no. 16). This order denies the petition for writ of habeas corpus on the merits.

  PROCEDURAL BACKGROUND

  Petitioner was convicted by a jury in the Superior Court of the State of California, Santa Clara County of assault by means of force likely to produce great bodily injury upon David Ramirez, battery with serious bodily injury upon David Ramirez, and misdemeanor assault upon Rene Corral. The jury also found true an allegation that Petitioner personally inflicted great bodily injury for purposes of a three-year sentence enhancement. Petitioner admitted allegations that he had been convicted of a serious or violent felony and that he had served a prior prison term. The trial court denied Petitioner's motion for a new trial based on ineffective assistance of counsel as well as his motion to strike the prior conviction. On November 19, 1999, Petitioner was sentenced to 14 years in state prison.

  The California Court of Appeal struck the prison-term enhancement but otherwise affirmed the judgment and denied Petitioner's request for state habeas relief. The Supreme Court of California denied review on November 14, 2001. Petitioner filed the instant petition April 29, 2002.

  FACTUAL BACKGROUND

  The facts underlying the charged offenses as found by the Court of Appeal of the State of California, Sixth Appellate District, are summarized as follows:
On September 24, 1998, David Ramirez and Rene Corral were drinking beer at the Casey Jones bar in Gilroy. An altercation began among six men. The owner succeeded in making the group go outside to the parking lot. A fight among 10 men then ensued. Ramirez went outside to break up the fight but concluded that his efforts would be unnecessary. He began walking back inside the bar. A woman approached him and started talking to him. Witnesses then saw Petitioner strike Ramirez on the left side of the face with his fist. According to Ramirez, he was initially struck on the right back side of the head. Ramirez collapsed. Witnesses say that when he tried to get back up, Al Diaz kicked him in the face. According to Ramirez, after the initial blow put him on the floor, he tried to get up, was struck again, fell again, and then was kicked and hit several times in the face, nose and eye.
Dr. Roger Vigil treated Ramirez for fractures on the left side of the face and nose, facial contusions and abrasions, head trauma, and a bruise to the back of the right ear. He testified as an expert in the field of emergency medicine that a single blow or kick could have caused all of the injuries to the left side of Ramirez's face.
Ignacio Cervantes testified for the defense that he went to the bar with Petitioner and Petitioner came to his aid when he became involved in the fight outside the bar. When the defense counsel asked whether Petitioner had hit anyone when Petitioner first came to his aid, Mr. Cervantes replied, "I didn't see him hit anybody."
People v. Perez, No. 209431, unpublished op at 2-3 (Cal. Ct. App.) (Pet. Ex A). STANDARD OF REVIEW

  This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).

  Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "reasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. An unreasonable determination of the facts by the state court will be found if the federal court is left with a "firm conviction" that the determination was wrong and the one Petitioner urges was correct. Torres v. Prunty, 223 F.3d 1103, 1108 (9th Cir. 2000). In deciding whether the state court's decision is contrary to, or an unreasonable application of clearly established federal law, a federal court looks to the decision of the highest state court to address the merits of Petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000). If the state court only considered state law, the federal court must ask whether state law, as explained by the state court, is "contrary to" clearly established governing federal law. See Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001). If the state court, relying on state law, correctly identified the governing federal legal rules, the federal court must ask whether the state court applied them unreasonably to the facts. See Lockhart, 250 F.3d at 1232. DISCUSSION

  I. Claim of Jury Instruction Error

  Petitioner was charged with an enhancement under Penal Code section 12022.7(a). The enhancement provides that a person who "personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony . . . in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of three years . . . (.)"

  Using CALJIC 17.20, the trial court instructed the jury as follows:
If you find beyond a reasonable doubt that a victim or victims suffered great bodily injury, you must then decide whether or not the defendant personally inflicted the great bodily injury.
In order to prove that the defendant personally inflicted great bodily injury, either of the following must be proved beyond a reasonable doubt:
1. The defendant personally inflicted great bodily injury; or,
2. (a) The defendant participated in a group beating; and
(b) It is not possible to determine which assailant inflicted which injuries; and
(c) The defendant's conduct was of a nature that could have caused the great bodily injury.
Clerk's Transcript ("CT") at 263.
  Petitioner contends that the instruction was improper because it provided a standard of proof less than the constitutionally required standard of proof beyond a reasonable doubt for every element of the charged crime. Petitioner argues that the instruction eliminated from the jury's consideration the determination of whether Petitioner was the direct perpetrator of the crime or merely an aider and abettor. According to Petitioner, the use of CALJIC 17.20, defining personal infliction of great bodily injury under California Penal Code § 12022.7(a), violated his right to have an essential element of the enhancement proven beyond a reasonable doubt. Petitioner contends that the instruction served to lessen the prosecution's burden to prove that he "personally inflicted" the injury due to the language in the charge that defendant's conduct "was of a nature that could have caused" the injury. Petitioner additionally argues that the jury instruction improperly applied state law.

  a. Legal Standard

  A person in custody pursuant to the judgment of a state court can obtain a federal writ of habeas corpus only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). In other words, a writ of habeas corpus is available under § 2254(a) "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert. denied, 478 U.S. 1021 (1986). It is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994); see, e.g., Moore v. Rowland, 367 F.3d 1199, 1200 (9th Cir. 2004) (per curiam) (state's violation of its separation-of-powers principles does not give rise to a federal due process violation); Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (state law determination that arsenic trioxide is a poison as a matter of law and not an element of the crime for jury determination is not open to challenge on federal habeas review); Franklin v. Henry, 122 F.3d 1270, 1272-73 (9th Cir. 1997) (court was bound by state court finding that a violation of state law had occurred, but still had to consider whether the violation amounted to a federal constitutional error).

  It is unavailable merely because "something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state court." Middleton, 768 F.2d at 1085. A state court's procedural or evidentiary ruling may be subject to federal habeas review, however, if it violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton, 768 F.2d at 1085. A federal court can disturb on due process grounds a state court's procedural or evidentiary ruling only if the ruling was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.) cert. denied, 479 U.S. 839 (1986).

  The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970). This constitutional principle prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. See Yates v. Evatt, 500 U.S. 391, 400-03 (1991); Carella v. California, 491 U.S. 263, 265-66 (1989); Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979).

  The Supreme Court's holdings in Carella and Sandstrom provide the controlling authority on mandatory presumptions in jury instructions on habeas corpus review. Powell v.Galaza, 328 F.3d 558, 563 (9th Cir. 2003) (on remand from United States Supreme Court). An instruction that creates a mandatory presumption violates due process because it "directly foreclose[s] independent jury consideration of whether the facts proved establish? certain elements of [the charged offense] . . . and relieve[s] the State of its burden of . . . proving by evidence every essential element of [the] crime beyond a reasonable doubt." Carella, 491 U.S. at 265-66 (citations omitted); see Sandstrom, 442 U.S. at 521 (holding unconstitutional jury instruction that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" because the jury could have interpreted it as either a burden-shifting or conclusive presumption); Powell, 328 F.3d at 563-64 (finding that court's midtrial instruction to jury that defendant's testimony was admission that specific intent element had been satisfied essentially directed jury's verdict, went beyond mandatory presumption instructions in Carella and Sandstrom, and was not cured by court's later instructions); Patterson v. Gomez, 223 F.3d 959, 965-66 (9th Cir. 2000); United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987). A mandatory presumption can be reviewed for harmless error because it is not equivalent to a directed verdict for the state — the jury is still required to find the predicate facts underlying each element beyond a reasonable doubt. Carella, 491 U.S. at 266; but cf. Powell, 328 F.3d at 566-67 (harmless error review inapplicable where trial court's midtrial instruction effectively directed jury to find defendant guilty, thereby depriving him of right to jury verdict under Sixth Amendment). To obtain federal collateral relief for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.