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Hernandez v. Sisto

January 4, 2009

ENRIQUE RODRIGUEZ HERNANDEZ, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 2]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

On June 24, 2004, in the Fresno County Superior Court, Petitioner entered into a plea agreement and pled no contest to nine felony counts as follows: attempted murder (Ca. Pen. Code §§ 664 & 187, subd. (a)),*fn1 assault with a semiautomatic weapon (two counts, § 245, subd. (b)), felony threats (three counts, § 422), stalking (two counts, § 646.9, subd. (b)); and corporal injury to spouse or cohabitant (§ 273.5(a)). (RT of 06/24/04 at 1-10; CT 45-50.) Petitioner also admitted several firearm enhancements (§ 12022.5, subd. (a)) and great bodily injury enhancements (§ 12022.7, subd. (e)).

On July 23, 2004, the trial court sentenced Petitioner to a total term of 17 years in prison computed as follows: middle term of seven years for attempted murder, four-year middle terms on each enhancement for that count, and two years for on-bail enhancement (§ 12022.1). Concurrent sentences were imposed on all the other counts and enhancements, with the exception on count two, assault with a semi-automatic weapon, which was stayed pursuant to section 654. Petitioner appealed the state court judgment, and the Court of Appeal remanded the matter to the trial court for Petition to admit the on-bail enhancement or for resentencing on the on-bail enhancement. The trial court subsequently resentenced Petitioner to the upper term of nine years for attempted murder and reimposed the middle term on the weapon and great bodily injury enhancements, totaling 17 years.

Petitioner filed a timely notice of appeal. On November 14, 2006, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Unpublished Opinion, Case No. F049477, 2006 WL 3291760.) The California Supreme Court denied review without prejudice to any relief for which Petitioner may be entitled after the United States Supreme Court determined Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed. 2d . 856 (2007).

Petitioner filed the instant petition for writ of habeas corpus on April 11, 2008, in the United States District Court for the Central District of California. The petition was transferred and filed in this Court on May 5, 2008. (Court Docs. 1, 2.) Respondent filed an answer to the petition on August 12, 2008, and Petitioner filed a traverse on September 2, 2008. (Court Docs. 7, 8.)

STATEMENT OF FACTS*fn2

On February 15, 2003, [Petitioner], in violation of a criminal protective order, went to his estranged wife's house and assaulted her when she arrived.

On February 19, 2003, after [Petitioner] again showed up at his estranged wife's house and began to argue, she drove off with a three-year-old child that was in her care. [Petitioner] followed her in his car, drove in front of her, and applied his brakes causing his estranged wife to apply her brakes abruptly in order to avoid colliding with [Petitioner's] car. [Petitioner] then made a slashing motion with a finger across his neck.

When his estranged wife stopped at a stop sign, [Petitioner] approached her vehicle walking and again made the slashing motion.

On July 6, 2003, while [Petitioner's] estranged wife spoke with a male friend who was going to repair her sprinkler system, [Petitioner] arrived and began yelling at the friend that he should not be there. [Petitioner's] estranged wife and her friend went to another location where they both got into the friend's vehicle to discuss the repairs. [Petitioner] soon arrived and parked behind the friend's vehicle. He then walked to the driver's window and pointed a semiautomatic pistol at the friend's head and threatened to kill him. Subsequently, [Petitioner] walked over to his estranged wife's window and shot her in the head.

On October 17, 2003, the district attorney filed a consolidated information charging [Petitioner] with all the charges he eventually pled to except that count 1 alleged that the attempted murder offense in that count was committed deliberately and with premeditation. Additionally, the arming enhancement in that count was charged pursuant to section 12022.53, subdivision (d) and counts 1 through 5 alleged an on-bail ...


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