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Gordon v. Felker

February 4, 2009


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner, a state prisoner represented by counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to challenge his 2002 convictions and sentence for inflicting corporal injury on a spouse and robbery. He alleges relief is warranted on the grounds that: (1) the prosecutor violated his due process rights by introducing evidence at trial of a restraining order the victim had obtained against the Petitioner; and (2) the consecutive sentences imposed by the trial court violated the Sixth Amendment because the trial court was required to make factual findings to impose the sentences consecutively. Docket No. 16 (First Amd. Pet.). Respondent asserts that some of Petitioner's arguments are procedurally barred and that all of them are without merit. Docket No. 21 (Resp.). Petitioner did not file a Traverse. The Petition shall be denied for the reasons set forth below.


In an unpublished opinion filed on June 9, 2004, the California Court of Appeal, Third Appellate District, summarized the factual background of the offense and trial:

Defendant and the victim began dating in November 2000. Within a few weeks, defendant had moved in with the victim, who rented a room in a duplex she shared with two other families. Defendant and the victim were married on January 1, 2001. On February 5, 2001 (the February 5 incident), defendant started an argument by informing the victim that his cousin had referred to the victim and her mother as "bitches." Defendant's assault became physical when he struck the victim in the head with his closed fist, knocked her unconscious by driving her into a wall, struck her repeatedly, and prevented her from breathing by sitting on her chest. The victim managed to save herself by breaking a glass over defendant's head. The victim received treatment at the hospital for her injuries. As a result to this attack, the victim filed a petition for annulment on March 29, 2001, had the petition served on defendant, and informed him that there was a restraining order in effect.

Less than one week later, on April 4, 2001, (the April 4 incident) defendant entered the victim's duplex at 2:00 a.m. and went to her bedroom, where she was sleeping with Andre Patterson, her ex-boyfriend. The victim and Patterson awoke and began to argue with defendant. Defendant picked up the victim's purse and looked through it, saying he needed money. The victim attempted to grab her purse. Defendant pulled out a knife and swung it at the victim, cutting her several times. The most serious wound was to the victim's finger and hand, which were cut when she blocked defendant's attempt to cut her throat. Defendant then fled, taking the victim's purse with him. Defendant found the keys to the victim's Cadillac in the purse, saw the Cadillac parked nearby, and drove it away. The car was later found burned and left on a street in the neighborhood.

The victim's account was corroborated by another resident of the duplex, Krystal Johnson, who witnessed defendant attack the victim and run out with her purse. Both Johnson and the victim testified that defendant was alone during the April 4 incident.

Sharlie Forberg testified for the defense. She testified she accompanied defendant to the victim's residence on April 4, 2001, so he could retrieve some of his belongings. She witnessed defendant and Patterson fighting in the bedroom, and saw defendant grab a knife in order to defend himself. Forberg testified that the victim must have been cut when Patterson refused to stop fighting. Defendant and Forberg fled from the apartment when Patterson grabbed a gun and pointed it at defendant. Defendant took neither the victim's purse nor her Cadillac, since they left in Forberg's car. Forberg admitted that in 1997 she had pled guilty to misdemeanor assault with force likely to cause great bodily injury. She also acknowledged that she cared deeply for defendant and had visited him in jail 36 times prior to the trial.

During his examination of several witnesses, the prosecutor elicited (without objection) testimony that the victim had obtained a restraining order against defendant. The initial reference to a "restraining order" came during the victim's direct testimony regarding the April 4 incident. While describing the argument between defendant and Patterson, she volunteered that Patterson told defendant he should leave because the victim had a restraining order against him. The victim later testified she had obtained a restraining order against defendant. When the prosecutor asked the victim how she felt when she obtained the restraining order, the court sustained a defense objection to relevance grounds.

The prosecutor then asked when the victim had obtained the restraining order. The victim could not recall the date, and was permitted to review (without objection) a copy of the order to refresh her recollection. The victim stated she had obtained the restraining order on April 12, 2001, (the April 12 order).

The second defense objection was made (and sustained) when the prosecutor asked the victim about the contents of the April 12 order.

Immediately thereafter the prosecutor asked the victim whether she had obtained a restraining order based on defendant's conduct both on February 5 and April 4. The court sustained an objection on relevance grounds.

Outside the presence of the jury, the prosecutor informed the court that the purpose of his questions was "to admit the fact the victim filed a restraining order. Even thought it is after the fact of April 4th, it is still relevant, I think, to show how serious the incident was for her and her state of mind as a result of the assault that led her to get a restraining order." Defense counsel responded: "The only problem with that is, it is just all hearsay on her part. After the fact, she's angry, she's hurt, she's injured. She's already testified to everything." The court sustained an objection to the evidence without prejudice to revisiting it "at some later point."

The next defense objection was made (and sustained on hearsay grounds) when the prosecutor asked the victim if she thought the restraining order was ...

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