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Yang v. Mendoza-Powers

February 4, 2009

BEE YANG, PETITIONER,
v.
CATHY MENDOZA-POWERS, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this application for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner challenges his convictions for discharging a firearm and assault with a firearm, entered in the Sacramento County Superior Court, Case No. 00F08612. In his sole claim, petitioner alleges that the trial court admitted hearsay testimony in violation of the Confrontation Clause and Crawford v. Washington, 541 U.S. 36 (2004). For the reasons that follow, the petition must be denied.

FACTUAL BACKGROUND

The following facts, taken from the unpublished decision of the California Court of Appeal, Third District, have not been rebutted with clear and convincing evidence and must, therefore, be presumed correct. 28 U.S.C. §2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).

On October 15, 2000, Ophelia T. was driving to her aunt's house with her sisters, L. and O., and her niece and nephew. L., the niece, and the nephew were in the back seat. Ophelia changed lanes and moved in front of a Toyota 4Runner. She stopped at a stoplight. Defendant drove his car over the sidewalk and shot at her car. She was shocked and scared by the incident, and continued on toward her aunt's nearby house to report the incident. Approximately two blocks from the site of the shooting, an unidentified man shouted to them, "[H]ey, hey, I got-I wrote down the license plate. [¶] ... [¶] Would it help?" He, too, looked shocked. The man pulled over and gave them a napkin with a license plate number written on it. He asked them if they were okay, said he hoped they were safe, and left.

When Ophelia and her passengers arrived at Ophelia's aunt's house, they noticed a bullet hole in the right rear passenger door. L. had been seated next to that door, and Ophelia's niece and nephew had been sitting beside L. Ophelia called the police, told them what had happened, and gave them the napkin with the license plate number on it.

The police located the 4Runner outside defendant's home; it was registered to defendant and Mary Yang. Officers then returned to Ophelia's aunt's house and told Ophelia they had found the car. Ophelia and O. were asked to come and identify defendant. Both women identified defendant as the shooter. A criminalist found gunshot residue as well as particles that could have been gunshot residue on defendant's hands. (Opinion at 1.*fn1

Petitioner was charged with one count of discharging a firearm at an occupied motor vehicle and three counts of assault with a firearm with special allegations that he personally used a firearm. The defense sought to exclude evidence relating to the license plate number written on the napkin by the unidentified witness. The court ruled that although the evidence was hearsay, it came within the spontaneous declaration and past recollection recorded exceptions and was therefore admissible. Petitioner was found guilty on all counts and found to have personally used a firearm in each of the three assault with a firearm charges. Petitioner was sentenced to an aggregate term of eight years in state prison. (Opinion at 1-2.)

STANDARD OF REVIEW FOR GRANTING RELIEF

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Nor can habeas corpus be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

ANALYSIS OF THE CLAIM

Petitioner states that he is presenting only one ground for relief- an alleged violation of the rule set forth in Crawford v. Washington, 541 U.S. 36, 68 (2004). (Petition at 6.) Specifically, petitioner alleges that the trial court erred when it admitted hearsay evidence at trial regarding the license plate number that was recorded ...


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