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Martinez v. Campbell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 17, 2009

KENNETH LEE MARTINEZ, PETITIONER,
v.
ROSEANNE CAMPBELL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge

ORDER

Pending before the Court is Petitioner Kenneth Lee Martinez' ("Petitioner") amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) (Doc. No. 74), Roseanne Campbell's ("Respondent") answer (Doc. No. 81), and Petitioner's traverse (Doc. No. 86). For the reasons discussed below, Petitioner's application is denied.

I.

A.

On December 20, 2002, a jury in the San Joaquin County Superior Court found Petitioner guilty of the following offenses: count one, torture (Cal. Penal Code § 206); counts two, three, four, five, and six, assault by means of force likely to produce great bodily injury or with a deadly weapon (Cal. Penal Code § 245(a)(1)); count seven, corporal injury to a cohabitant (Cal. Penal Code § 273.5), count eight, forcible rape (Cal. Penal Code § 261(a)(2)), count 9, forcible oral copulation (Cal. Penal Code § 288a(c)), count eleven, criminal threats (Cal. Penal Code § 422), count twelve, dissuading a witness by force or threat (Cal. Penal Code § 136.1(c)(1)), count thirteen, false imprisonment by violence (Cal. Penal Code § 236). With regard to counts seven, eight, and nine, the jury also found that Petitioner personally inflicted great bodily injury under circumstances involving domestic violence (Cal. Penal Code § 12022.7(e)). Petitioner was acquitted on count ten, a second act of forcible oral copulation (Cal. Penal Code § 288a(c)). The prosecution dismissed counts fourteen, fifteen, and sixteen, assault with the intent to commit rape (Cal. Penal Code § 220). People v. Martinez, 23 Cal. Rptr. 3d 508, 510 n.1 (Cal. Ct. App. 2005).

On February 3, 2003, the trial court sentenced Petitioner to state prison for a term of fifty-four years, eight months to life, calculated as follows:

25 years to life on count 8, the principal term, pursuant to the "one strike" law (Pen. Code, § 667.61; undesignated section references are to the Penal Code), and imposed the same term on the enhancements to count 8 but stayed that term under section 654.*fn1 The court then imposed a consecutive sentence of 25 years to life on count 9, finding that the offenses charged in counts 8 and 9 occurred on separate occasions. The court further imposed consecutive sentences of one year (one-third the middle term) on count 2, three years (the middle term) on count 12, and eight months (one-third the middle term) on count 13. Finally, the court imposed a life sentence on count 1 and upper terms on the remaining counts and enhancements (counts 3--6, four years; count 7, four years; the enhancement to count 7, five years; count 11, three years), but stayed these sentences under section 654.

People v. Martinez, 83 Cal. Rptr. 3d 738, 742 (Cal. Ct. App. 2008); see Clerk's Transcript, Vol. IV of IV at 1017-20; Reporter's Transcript, Vol. V of V at 1407-1413.

B.

On February 11, 2003, Petitioner filed a direct appeal from the trial court's judgment and sentence to the California Court of Appeal for the Third Appellate District. The California Court of Appeal summarized the facts as follows:*fn2

On June 8, 2002,*fn3 R., the victim, and defendant, her live-in boyfriend, got into a physical fight at his workplace. Both were arrested and jailed. R. bailed out that day, but defendant spent four days in jail.

When released from jail, defendant went back to the home of R. and her 12-year-old son in Stockton. However, on June 14, defendant learned that the fight with R. at his workplace had cost him his job. Instead of going home, he went to a friend's house in Thornton. Early the next day, defendant called R. to ask her to come pick him up.

After R. got there, defendant burst out of a parked van, grabbed her by the hair, and dragged her into the van. Keeping her trapped inside, he accused her of making him lose his job, vandalizing his vehicle, and stealing his briefcase. He struck her with a chain on the head, back, and shoulders and kicked her repeatedly with steel-toed boots.

Later in the day, defendant drove with R. back to her house. When he fell asleep, she left to look for her missing wallet. She did not report defendant to the police at that point because she feared for the safety of her son if she did so, and because the police had sided with defendant over her in the June 8 incident. Furthermore, defendant had disconnected the telephones in the house.

From Sunday, June 16, to Tuesday, June 18, defendant held R. hostage and beat her repeatedly, at different times using his fists, his steel-toed boots, a star-shaped tire iron, a flashlight, and a metal nail puller. He also raped her and forced her to orally copulate him three or four times.*fn4 Throughout this period, he continued to berate her about his lost job; he also threatened to kill her and her family if she told anyone about what he was doing to her.

On June 17, R. went across the street to her neighbor M.G.'s house to get hamburger meat. M.G. noticed R.'s face was bruised and asked her to stay, but R. said she could not because defendant would get mad at her. M.G. urged R. to call the police, but R. said she did not want to get M.G. involved.

On the evening of June 18, defendant twice poured rubbing alcohol over R. while they were in the bathroom, then set pieces of toilet paper alight and threw them at her. He told her he wanted her to die and to see her burn in hell.

Failing to set R. on fire the first time, defendant poured a bottle of hydrogen peroxide over her and told her to shower. She could not undress or operate the shower because her hands were broken. Defendant forced her in and poured shampoo on her head. When he put her hands on her head, she screamed in extreme pain. He ordered her to dress and put on makeup, but she could not. He kept on hitting and kicking her.

Defendant then repeated the process, again trying and failing to set R. on fire, then forcing her into the shower. He pulled her up by the arms, which had been broken in the course of his assaults. He again demanded sex. R. felt sure she would die if she did not escape.

When defendant left the bathroom for a moment, R. ran naked out of the bathroom and across the street to M.G.'s house, where she was able to call 911.

The emergency room doctor observed that R. was bruised all over. She had significant swelling and broken skin over her right temple, deeply bruised forearms, and a bony deformity in one arm. X-rays revealed both forearms, a rib, and a leg bone were broken; the right forearm had multiple fractures. R.'s lesions looked like the result of being beaten with a crowbar or tire iron, as she told the doctor she was.

The prosecution also introduced the testimony of K.M. pursuant to Evidence Code section 1109. K.M., a former girlfriend of defendant's who had had a child with him, testified that on May 2, 1999, defendant unexpectedly came to her apartment. During the ensuing conversation, he got mad at her, struck her in the face, and damaged the apartment. When she tried to leave, he grabbed her arm hard enough to cause a bruise.

At trial, R. repudiated her prior accounts inculpating defendant, including her stories to the police and her preliminary hearing testimony. She claimed she assaulted defendant repeatedly during the episode, while defendant hit and kicked her only once near the end of the episode and only in self-defense. According to R., she was jealous about defendant's imagined infidelity and was drinking heavily throughout the episode. She suffered almost all her injuries either from falling off a gate when she jumped a fence at the Thornton residence or from falling off a ladder when trying to kick defendant.

In addition to presenting R.'s preliminary hearing testimony and the stories she had previously told police and others, the prosecution impeached R.'s trial testimony by introducing the tape and transcript of her conversation with defendant and her son-in-law during a jail visit after the preliminary hearing. In that conversation, defendant repeatedly apologized for what he had done and told R. he loved and needed her, she repeatedly told him she loved and needed him, and they talked about how to get this incident behind them and reunite. Her son-in-law said the two of them would have to "get a story going and . make sure it sounds right."

Defendant did not testify.

Martinez, 23 Cal. Rptr. 3d at 511-513. Petitioner appealed to the California Court of Appeal on the same grounds he raises herein. The California Court of Appeal affirmed the judgment of conviction. Id. at 519. Petitioner filed a petition for review before the California Supreme Court. It denied the petition without prejudice stating, "[p]etition for review denied without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) 542 U.S. __ [159 L.Ed. 2d 403, 124 S.Ct. 2531], on California law." People v. Martinez, No. S131668, 2005 Cal. Lexis 4432, at *1 (Cal. Apr. 20, 2005).

In 2007, Petitioner filed a motion for a new sentencing hearing in the trial court. The trial court denied the motion citing Cunningham v. California, 549 U.S. 270 (2007). Martinez, 83 Cal. Rptr. 3d at 742. Petitioner appealed to the California Court of Appeal, Third Appellate District. Id. In a reasoned opinion, the court affirmed. Id. at 745. The California Supreme Court denied Petitioner's petition for review without prejudice to any relief to which defendant might be entitled after the United States Supreme Court decides Oregon v. Ice, No. 07-901." People v. Martinez, Case No. S167946, 2008 Cal. LEXIS 14391 (Cal. Dec. 10, 2008). Accordingly, Petitioner exhausted his federal constitutional claims in state court.

II.

Petitioner's application sets forth eight claims for relief. Petitioner's application was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a federal court has limited power to grant habeas corpus relief under § 2254(d). AEDPA provides that:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). Under § 2254(d)(1), "[a] state court decision is 'contrary to' our clearly established precedents if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases,' or if it 'confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Early v. Packer, 537 U.S. 3, 8 (2002) (citing and quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of § 2254(d)(1), a federal court may grant habeas corpus relief if the state court identified the correct governing legal principle from the Supreme Court's decisions, but unreasonably applied that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A petitioner bears the burden of showing that the state court applied Supreme Court precedent in an objectively unreasonable manner. Price v. Vincent, 538 U.S. 634, 641 (2003) (citation omitted). A federal habeas court, however, "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its 'independent review of the legal question,' is left with a 'firm conviction' that the state court was 'erroneous'").

A federal court must evaluate a claim pursuant to § 2254(a) by reviewing the last reasoned state court decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). In this case, the California Court of Appeal's decisions denying Petitioner's direct appeal are the last reasoned opinions for the claims Petitioner raises herein. See Martinez, 23 Cal. Rptr. 3d at 508, and Martinez, 83 Cal. Rptr. 3d 738, modified by People v. Martinez, Case No. C055549, 2008 Cal. App. LEXIS 1666 (Cal. Ct. App. Oct. 22, 2008), review denied by People v. Martinez, Case No. S167946, 2008 Cal. LEXIS 14391 (Cal. Dec. 10, 2008). Therefore, this Court must evaluate the California Court of Appeal's 2005 and 2008 decisions.

III.

A.

Petitioner first contends that the his conviction violated the Fifth Amendment's protection against double jeopardy. App. at 7.*fn5 Petitioner asserts that his conviction for five assault with deadly weapons counts, corporal injury on a cohabitant, forcible rape, forcible oral copulation, criminal threats, dissuading a witness by force or fear, and false imprisonment by violence were simply lesser included offenses of his conviction of torture and being convicted on torture made up the elements of the other violations. Accordingly, Petitioner contends, he was convicted of the greater and lesser offenses and reversal of counts two through thirteen is required.

The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. When analyzing a double jeopardy claim, "[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932); see also United States v. Dixon, 509 U.S. 688, 696 (1993) (stating "[t]he same-elements test, sometimes referred to as the Blockburger test, inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution"). "[T]he Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 786 n.17 (1975).

Count one, torture, California Penal Code § 206 reads as follows:

Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. The crime of torture does not require any proof that the victim suffered pain.

The Judicial Council of California Criminal Jury Instructions for California Penal Code § 206 provides:

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant inflicted great bodily injury on someone else; AND

2. When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.

Judicial Council Of California Criminal Jury Instruction 810 (Fall 2008).

1.

Petitioner contends that his conviction on counts two, three, four, five, and six-assault by means of force likely to produce great bodily injury or with a deadly weapon (Cal. Penal Code § 245(a)(1))-violates the Double Jeopardy Clause.*fn6 Counts two through six require that the prosecution prove that defendant used force with a weapon. The first element, that the defendant acted with a deadly weapon, in counts two through six is an additional element not contained in count one. See Judicial Council Of California Criminal Jury Instruction 875 (Fall 2008). The conviction of Petitioner on counts two through six did not violate the Double Jeopardy Clause.

In maintaining that count one includes the elements contained in counts two through six, Petitioner appears to be confusing the portion of section 245 of which he was convicted. Section 245(a)(1) permits conviction of a person who commits an assault upon another "with a deadly weapon" or "by any means of force likely to produce great bodily injury." In this matter, however, the record shows that Petitioner's conviction was based on the use of deadly weapon-not merely using force likely to produce great bodily injury. In its instructions on assault with a deadly weapon, the trial court explained what weapon was used: "The deadly weapon alleged in Count Two is a chain. . . . The deadly weapon alleged in Count Three is a flashlight. . . . The deadly weapon alleged in Count Four is a crowbar. . . . The deadly weapon alleged in Count Five is a star tire iron. . . . The deadly weapon alleged in Count Six is fire." Clerk's Transcript, Vol. III of IV at 609-10; Reporter's Transcript Vol. V of V at 1178-79. Because Petitioner's convictions for violating California Penal Code § 245(a)(1), counts two through six, required proof of an additional element-i.e., use of a deadly weapon-Petitioner's conviction does not violate the Double Jeopardy Clause and Petitioner is not entitled to federal habeas relief for this claim.

2.

Petitioner's arguments also fail as to count seven-corporal injury to a cohabitant, California Penal Code § 273.5*fn7 , count eight-forcible rape, California Penal Code § 261(a)(2)*fn8 , count nine-forcible oral copulation (Cal. Penal Code § 288a(c))*fn9 , count eleven-criminal threats (Cal. Penal Code § 422)*fn10 , count twelve-dissuading a witness by force or threat (Cal. Penal Code § 136.1(c)(1))*fn11 , and count thirteen-false imprisonment by violence (Cal. Penal Code § 236).*fn12

Count seven requires that the prosecution prove that the infliction of physical injury was on a current or former cohabitant. This is not an element required to prove torture as charged in count one. Count eight requires proof that the defendant engaged in sexual intercourse with the victim. This is not an element required in count one. Count nine requires proof that the defendant committed an act of oral copulation. This is not an element of the crime of torture as alleged in count one. Count eleven requires proof that the defendant made threats. This is not required to prove the crime of torture. Count twelve requires proof that the defendant prevented or dissuaded a witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. This conduct is not a required element for the crime of torture. Count thirteen requires proof that the defendant violated the personal liberty of another. Proof of torture can be demonstrated without proof of this element.

Accordingly, to prove counts seven through nine and eleven through thirteen, the prosecution must present evidence of elements not required to prove the defendant committed torture as defined in California Penal Code § 206. Accordingly, none of the offenses alleged in the counts of seven through nine and eleven through thirteen is a lesser offense of torture. Thus, Petitioner is not entitled to federal habeas relief for this claim.

B.

Petitioner's next contends that the trial court's failure to provide a unanimity instruction violated his right to due process. Petitioner asserts:

Conviction obtained by a violation of the protection against due process of law, in violation of the fourteenth amen. [sic] As stated above, petitioner was convicted of torture, five assault with a deadly weapon counts, corporal injury on a cohabitant, forcible rape, forcible oral copulation, criminal threats, dissuading a witness by force, and false imprisonment by violence . . . The trial court erred in not instructing the jury that they must unanimously agree on the particular acts on which they relied for the conviction for every offense . . . Accordingly, failure to instruct the jury that they must unanimously agree on the particular acts which formed the basis for their conviction allowed the jury to find appellant guilty of each offense without unanimously agreeing on the act.

App. at 7, 9 (ellipses in original). Petitioner contends that the trial court had a sua sponte duty to instruct the jury with CALJIC No. 17.01.*fn13 App. at 7, 9-10.

Generally, under California law, a jury verdict in a criminal case must be unanimous. See People v. Collins, 131 Cal. Rptr. 782 (Cal. 1976), cert. denied, 429 U.S. 1077 (1977). A unanimity instruction is required when a conviction on a single count could be based on two or more discrete criminal events. See People v. Perez, 26 Cal. Rptr. 2d 691, 696-97 (Cal. 1993). The instruction seeks "to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed." People v. Russo, 108 Cal. Rptr. 2d 436, 441 (Cal. 2001) (citations omitted).

In this case, however, the unanimity instruction was not required because the events over the three-day period constituted a continuous course of conduct. See People v. Stankewitz, 270 Cal. Rptr. 817, 835 (Cal. 1990). "The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." Id. Petitioner's crimes against the victim occurred from Sunday, June 16 to Tuesday, June 18. Petitioner's only defense was that the victim recanted at trial. Thus, the continuous conduct rule applies to Petitioner's conviction.

Moreover, a challenge to a jury instruction solely as an error under state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"). The Constitution does not require unanimity in a jury verdict. Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991); Apodaca v. Oregon, 406 U.S. 404, 410-413 (1972). "[T]he requirement for jury unanimity in a criminal prosecution is a state constitutional requirement. The United States Supreme Court has never held jury unanimity to be a requisite of due process of law." People v. Vargas, 110 Cal. Rptr. 2d 210, 248 (Cal. 2001) (citation and internal quotations omitted).

A specific unanimity instruction is required only when it appears that "'there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.'" United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989). Here, the evidence presented a clear story of what happened to the victim and the evidence of Petitioner's guilt was overwhelming. Accordingly, the trial court's failure to give a unanimity instruction did not violate the Constitution. Thus, the California Court of Appeal's rejection of Petitioner's unanimity claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d).

C.

Petitioner's third basis for habeas relief contends that the California's torture statute, California Penal Code § 206, is preempted by the Convention Against Torture, 1465 U.N.T.S. 85. He maintains that his conviction violates due process under the Fourteenth Amendment. App. at 8, 10.*fn14 "[T]he Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that 'interfere with, or are contrary to,' federal law. Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211 (1824) (Marshall, C. J.)). As explained by the California Court of Appeal, the Convention Against Torture outlaws acts committed under the color of law. See 18 U.S.C. § 2340 ("'torture' means an act committed by a person acting under the color of law . . ."). Petitioner's acts were not committed while acting under the color of law. Thus, the Convention Against Torture does not apply to the events that led to his conviction. Because the Convection Against Torture does not apply to Petitioner's actions, California Penal Code § 206 neither interferes with nor is contrary to any federal law.

D.

Petitioner argues in his fourth claim that the trial court's use of CALJIC No. 2.50.02 violated his rights under the Fifth, Sixth, and Fourteenth Amendments because the jury might have believed that they could convict Petitioner based on a preponderance of the evidence standard rather than the beyond a reasonable doubt standard. App. at 8, 10-11.

CALJIC No. 2.50.02, provides as follows:

Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in the case. . . . .

If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence.

If you find that the defendant had this disposition, you may, but are not required to, infer that he is likely to commit and did commit the crime of which he is accused.

However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses. The weight and significance, if any, are for you to decide. You must not consider the evidence for any other purpose.

Reporter's Transcript, Vol. V of V at 1175-76 (emphasis added). To obtain habeas corpus relief, Petitioner must show that the trial court's "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72. Further, "It is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Id. (citation omitted).

Petitioner's claim is not meritorious. CALJIC No. 2.50.02 clearly distinguishes between the burden of proof for finding that Petitioner committed a prior act of domestic violence, and the required proof for a finding that Petitioner committed the charged offense. Specifically, the instruction provides that a jury may not find Petitioner guilty of the charged offenses simply because it finds that he committed a prior act of domestic violence. The trial court instructed the jury that they were required to find defendant guilty beyond reasonable doubt:

A defendant in a criminal action is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.

Reporter's Transcript, Vol. V of V at 1177 (emphasis added). Further, Petitioner's counsel's closing argument stated that the jury had to find-beyond a reasonable doubt-that Petitioner committed each charge: "Remember reasonable. Reasonable doubt. Each charge has -- every single one of those charges has -- that's why you have verdict sheets and lesser included charges in these. You are supposed to believe that the defendant, beyond a reasonable doubt, committed each crime and each element of those crimes." Id. at 1278; see id. at 1296, 1299. Petitioner's counsel also contrasted the difference between the preponderance standard the jury would apply per CALJIC 2.50.02 and the reasonable doubt standard they were required to apply for the charges against Petitioner:

Now you're going to get another instruction, it's unusual -- usually you don't get it in a criminal trial. It's called preponderance of the evidence, how you do something. And that has to do -- and the judge told you specifically, it has to do with how Ms. Miller came up and talked about a prior incident, when were you slapped and kicked. That goes only as to whether you believe it or not. He's not charged with that. That goes to whether you believe that incident happened or not. That's kind of helpful in a couple of ways. Number one, it shows you the difference in what the standards are for say civil cases in a lot of things. There's preponderance, and then the much more difficult and higher standard is beyond a reasonable doubt in a criminal case.

Id. at 1288. The California Court of Appeal's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established Federal law. Petitioner is not entitled to federal habeas relief for this claim.

E.

Petitioner further contends that California Penal Code § 206 is unconstitutionally vague. App. at 12-13. Petitioner argues that, as applied in this action, it is impossible for a court to determine whether torture is a continuous conduct offense or a single incident that requires a unanimity instruction. Id. The United States Constitution requires that "laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). California Courts have rejected the notion that Section 206 is void-for-vagueness. See People v. Aguilar, 68 Cal. Rptr. 2d 619, 624 (Cal. 1997) (holding that the meaning of "torture" is not unconstitutionally vague notwithstanding its use of the words "cruel" or "extreme" pain and "sadistic purpose"); People v. Talamantez, 215 Cal. Rptr. 542, 550 (Cal. App. 1985) (rejecting a similar challenge to the torture-murder statute).

As explained in Section II B, above, it was not error for the jury to consider the events from Sunday, June 16, to Tuesday, June 18 to find Petitioner guilty of torture. Therefore, as applied to Petitioner, § 206 is constitutional. Further, Petitioner does not cite, nor is this court aware of, any United States Supreme Court precedent which calls into question the constitutionality of § 206. Further, Petitioner has not demonstrated that the statute was vague as applied to the facts. As such, this court cannot say that § 206 is contrary to clearly established United States Supreme Court precedent or an unreasonable determination thereof. The California Court of Appeal correctly rejected this claim.

F.

In Petitioner's sixth ground for relief, he argues that the consecutive terms imposed for the sexual assaults-counts eight and nine, forcible rape and oral copulation, respectively-violated his due process rights under the Fourteenth Amendment. App. at 13-14. The trial court found that the offenses charged in counts eight and nine occurred on separate occasions. It sentenced Petitioner to consecutive terms of 25 years to life for counts eight and nine pursuant to California Penal Code § 667.61.*fn15 Petitioner asserts that "the sexual acts occurred during one episode, against a single victim, at a single location and therefore it was error for the trial court to sentence appellant to two consecutive life terms for the sex offenses." Id. at 13. Petitioner contends that he should have only received one life sentence because the forcible rape and oral copulation were committed on a single occasion.

To the extent one can interpret Petitioner's claims as asserting a violation of his Sixth Amendment right to a jury determination of any fact that increases the maximum punishment authorized for a particular offense under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), they lack merit. In January of this year, the Supreme Court decided Oregon v. Ice, No. 07-901, 555 U.S. ___, 129 S.Ct. 711 (Jan. 14, 2009). In Ice, the Court answered the question of whether a trial court errs in making a finding, during sentencing and after a jury conviction, that the defendant's offenses constituted a "separate incident." Id. at 715.

The defendant in Ice "entered an apartment in the complex he managed and sexually assaulted an 11-year-old girl." Id. The jury convicted him for six crimes, including two incidents of first-degree burglary. Id. The trial court found, at sentencing, "that the two burglaries constituted 'separate incident[s].'" Id. at 715. As a result of this finding, the judge had the discretion, under Oregon law, to impose consecutive sentences. Id. at 716. In his appeal, Ice argued that the facts permitting the imposition of consecutive sentences should have been submitted to the jury. Id. The Supreme Court disagreed. Id. at 719. It upheld the Oregon statute that assigned this limited fact finding, in the context of a sentencing determination, to trial judges. Id.

Here we have a similar situation. The California Supreme Court has held that "for the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a "single occasion" if they were committed in close temporal and spatial proximity." People v. Jones, 104 Cal. Rptr. 2d 753, 759 (Cal. 2001). Petitioner was convicted for forcibly raping the victim and forcible oral copulation. The evidence showed that these events occurred on Sunday and Monday. This is not in close temporal proximity. Further, the events occurred in two areas of the house-the bedroom and bathroom. This means that the offenses were not committed in close spatial proximity. The record shows further that the victim was not permitted to travel in between the two rooms without Petitioner's consent. See Reporter's Transcript, Vol. V of V at 1409-10. In light of Ice, these facts support the trial court's finding that the events occurred on separate occasions and that the imposition of consecutive sentences was proper. Accordingly, the California Court of Appeal correctly rejected this constitutional claim.

G.

Petitioner's seventh contention is that the trial court's admission of the victim's out-of-court statements violated the Confrontation Clause of the Sixth Amendment under Crawford v. Washington, 541 U.S. 36 (2004). Petitioner asserts that the Confrontation Clause was violated when the prosecution used the victim's out-of-court statements to impeach her testimony at trial.

Out-of-court testimonial statements against a defendant at trial violate the confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 66-68. But "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. at 59 n.9.

Petitioner has failed to demonstrate that the admission of the victim's out-of-court statements violated his rights under the Sixth Amendment. The victim appeared at trial and was available for cross-examination. In fact, during her testimony, the victim recanted her prior statements that implicated Petitioner. The prosecution impeached the victim's testimony by using the victim's out-of-court statements at the preliminary hearing, as well as her statements to an emergency operator, emergency medical personnel, and the police. The admission of the victim's out-of-court statements did not violate the Confrontation Clause because the declarant was present at trial, testified, and was subject to cross-examination.

H.

In his eighth claim, Petitioner asserts that the imposition of consecutive and upper term sentences violated his right to trial by jury under the Sixth Amendment. Petitioner was given consecutive twenty-five to life sentences for counts eight and nine, full-term consecutive determinate sentences for counts two, twelve, and thirteen, and aggravated terms for counts three through seven and eleven. Petitioner also argues his consecutive and upper term sentences contravene are contrary to the Supreme Court's decision in Blakely, 542 U.S. 296.

As discussed in Section F, above, Petitioner's argument that his Sixth Amendment rights were violated because the trial court determined that counts eight and nine occurred on separate occasions fails. In Ice, the Supreme Court upheld an Oregon statute assigning limited fact finding, in the context of a sentencing determination, to trial judges. 129 S.Ct. at 719. In Jones, the California Supreme Court held that sex offenses occur on a "'single occasion' if they were committed in close temporal and spatial proximity." 104 Cal. Rptr. 2d at 759. Thus, the facts of this case-showing that the events supporting counts eight and nine occurred on different days-and the Supreme Court's holding in Ice support the trial court's imposition of consecutive sentences. Accordingly, the California Court of Appeal correctly rejected this constitutional claim.

Petitioner also challenges the trial court's imposition of consecutive sentences for counts two (assault with a deadly weapon (a chain)), Cal. Penal Code § 245(a)(1)), twelve (dissuading a witness by force or threat, Cal. Penal Code § 136.1(c)(1)), and thirteen (false imprisonment by violence (Cal. Penal Code § 236)). In imposing the consecutive sentences for these offenses, the trial court stated, regarding count two, "this crime involved a separate act of violence and was committed at a different time and place." Reporter's Transcript, Vol. V of V at 1410. The trial court explained the consecutive sentence for count twelve as follows:

This offense was not incidental to the defendant's intent to commit the offenses to which this offense shall run consecutive. The defendant's criminal objective in committing this offense was to prevent the report of the other offenses. This represents a separate objective under California Rule of Court 4.425. Subsequently, The Court imposes a consecutive term.

Id. And, finally, the trial court explained why it imposed a consecutive sentence for count thirteen:

[I]t finds that the fact of the defendant's prior domestic violence incident involving Kathy Miller is a factor in aggravation pursuant to Rule of Court 4.40. And the Court notes that during that event, the defendant had grabbed Ms. Miller and wouldn't let her go, another act of false imprisonment.

Id. at 1410-11. The California Court of Appeal affirmed the imposition of the consecutive sentences because: "[t]hese sentences were ordered to run consecutively under [California Penal Code §] 669.*fn16 There was no right to a jury trial on facts used to justify these consecutive sentences." Martinez, 83 Cal. Rptr. 3d at 744 (citing People v. Black, 62 Cal. Rptr. 3d 569, 585-86 (2007)). Black was later overruled by Cunningham, 549 U.S. 270, on other grounds. Petitioner argues that the imposition of consecutive sentences violates Blakely, 542 U.S. 296.

However, Blakely addressed a court's imposition of a sentence above the statutory maximum. Id. at 301. Blakely does not apply to this case because consecutive sentencing was within the statutory maximum sentence that the trial court was authorized to impose based on the jury's verdict. Petitioner fails to raise any argument that suggests the Court of Appeal's decision was contrary to, or an unreasonable application of a clearly established federal law as determined by the Supreme Court of the United States.

The third prong of Petitioner's eighth contention also fails. Petitioner maintains that the upper term sentences imposed by the trial court, although stayed, violated his rights under the Sixth Amendment because the trial court did not properly explain why he sentenced Petitioner to upper terms for counts three through seven and eleven. The trial judge stated that based on his twenty years of experience in the criminal justice system, Petitioner's actions were "as bad as it gets without somebody being killed." Reporter's Transcript, Vol. V of V at 1407. Based on that reasoning, the trial court imposed upper term sentences. Petitioner asserts that the imposition of upper terms was not supported by facts found by a jury beyond a reasonable doubt. Because the trial court stayed the imposition of the upper term sentences, any error was harmless.

Harmless and insignificant constitutional errors do not require the automatic reversal of a conviction if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22 (1967). Only a "structural error" requires automatic reversal of a conviction. See Washington v. Recuenco, 548 U.S. 212, 218-22 (2006) (failure to submit a sentencing factor to the jury is not a "structural error."); Rose v. Clark, 478 U.S. 570, 579 (1986) ("[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis."). Furthermore, a Sixth Amendment error may be found harmless if there is overwhelming evidence supporting the sentence enhancing fact finding the trial court undertook. United States v. Riccardi, 405 F.3d 852, 875 (2005).

Given the evidence against Petitioner, the jury would have likely found the his offenses involved such great violence to justify the enhancements. More importantly, however, the upper term sentences have been stayed and are "upper term" in name only. The alleged error was harmless.

I.

Petitioner's final contention is that the police and prosecution conspired to suppress medical reports and the sexual examination report performed on the victim and Petitioner. Petitioner asserts that the suppressed medical reports and sexual assault examinations prove his innocence on counts one (torture), eight (forcible rape), and nine (forcible oral copulation). Petitioner maintains that the suppression of this evidence violated his due process rights under the Fourteenth Amendment.

The suppression of exculpatory violates the due process clause regardless of whether the prosecution acted in good faith. Brady v. State of Maryland, 373 U.S. 83, 87 (1963). Under Brady, "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. "The materiality standard for Brady claims is met when 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Banks v. Dretke, 540 U.S. 668, 672 (2004) (citing Kyles, 514 U.S. 419, 435 (1995)); United States v. Bagley, 473 U.S. 667, 675-76 (1985) (holding that evidence is "material" if there is a reasonable probability that the result of a prosecution would have been different had the evidence been disclosed to the defense). A Brady violation occurs when favorable evidence that was exculpatory or impeaching was suppressed by the state willfully or inadvertently, and prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Therefore, to comply with Brady, a prosecutor has a duty to disclose evidence that was exculpatory or impeaching even though it was not requested by the accused. Id. at 280 (citing United States v. Agurs, 407 U.S. 97, 107 (1976) and Bagley, 473 U.S. at 676)).

Petitioner contends that Dr. Kyle Krueger from the San Joaquin County General Hospital performed the sexual assault examination on the victim and noted that she did not suffer any vaginal trauma. He further alleges that Deputy Christopher Stiehr from the San Joaquin County Sheriff's Department was present when the sexual assault examination occurred and that the victim was administered Demerol. He argues that, as a result, she subsequently lacked focus when she told Detective Stiehr that Petitioner tortured, raped, and forced her to orally copulate him.

Petitioner fails to demonstrate the materiality of this evidence. The trial record reveals that Petitioner's counsel was aware of the rape examination and that the victim received Demerol before and after she made the allegations against Petitioner. See Clerk's Transcript, Vol. II of IV at 327 (prosecution in a supplemental motion in limine that when the victim talked to Deputy Stiehr she was "having 'altered levels of consciousness.'"); Reporter's Transcript, Vol. I of IV at 142, 146-47, 149-52 (during cross-examination of Detective Stiehr, Petitioner's counsel questioned him about the hospital administering Demerol to the victim during Stiehr's questioning); Reporter's Transcript, Vol. IV of V at 870, 873, 875-76 (Dr. Thrailkill was cross-examined regarding the administration of pain medication to the victim); Id. at 1089-94 (Dr. Krueger testified regarding the rape exam performed on the victim). In fact, Dr. Krueger testified several times that he could not say whether the victim was raped. Id. at 1092, 1093. Therefore, the information Petitioner alleges is contained in the purportedly suppressed evidence was actually presented at trial through the testimony of Deputy Stiehr, Dr. Thrailkill, and Dr. Krueger. No Brady violation occurred here because the information in the purportedly suppressed evidence was presented the jury.

IV.

Petitioner has failed to demonstrate that the state courts' decisions were contrary to, or an unreasonable application of a clearly established federal law as determined by the Supreme Court of the United States. It is hereby ORDERED that Petitioner's application for a writ of habeas corpus is DENIED. The clerk is directed to enter judgment and close the case.


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