The opinion of the court was delivered by: J. Kelley Arnold U.S. Magistrate Judge
REPORT AND RECOMMENDATION Noted for March 27, 2009
This case has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. Petitioner is seeking federal habeas relief, pursuant to 28 U.S.C. § 2254, from a state jury conviction arising out of California State Superior Court. He is currently detained at the Mule Creek State Prison in Ione, California.
Petitioner raises the following grounds for habeas relief:
A. Ineffective assistance of counsel due to counsel's failure to recognize and object to introduction of co-defendant's post-arrest statements at trial;
B. Petitioner was improperly sentenced to serve consecutive eight-year terms of imprisonment on counts 3 and 4, because those offenses do not qualify for such treatment under Cal. Pen. Code section 667.6 (c) or (d);
C. Petitioner was unconstitutionally sentenced to an aggravated and consecutive terms in violation of his Fifth, Sixth, and Fourteenth Amendment protections;
D. Petitioner was sentenced unconstitutionally to two full, separate and consecutive terms as to counts 3 and 4 in violation of Blakely and Apprendi;
E. Petitioner was unconstitutionally sentenced to consecutive terms of imprisonment as to counts 4 and 5.
After reviewing the Petition and balance of the record, this report is submitted to the Honorable Robert S. Lasnik, Chief United States District Judge, pursuant to the provisions of 28 U.S.C. § 636.
On, April 18, 2002, Petitioner, Ronald Hurst, was arrested and subsequently charged in the state's original information, with the following crimes:
Forcible Rape (Cal. Pen. Code §261(a)(2); Count 1);
Forcible Rape While Acting in Concert (§264.1; Count 2);
Anal and Genital Penetration By a Foreign Object (§289(a)(1); Count 3);
Rape by use of drugs (§ 261(a)(3); Count 4);
Kidnaping (§ 207(a); Count 5);
Anal and Genital Penetration By a Foreign Object (§289(e); Count 6); and
Resisting or Obstructing a Peace Officer (§ 148(a)(1)); Count 8).
CR 83-86, (referencing the Court Record or trial transcript, which was submitted with Respondent's Answer).
In the early morning hours on April 18, 2002, a 911 phone call was made reporting a disturbance at an apartment complex. When police officers arrived at the scene they knocked on the door of the identified residence. The knocking did not produce a response, but they could hear movement and noises from within the apartment. The officers kicked the door open, which was found to be held closed with a chair wedged under the doorknob, and entered the apartment with guns drawn. In one of the bedrooms, officers found Petitioner sitting in a chair and the victim laying on the bottom mattress of a bunk bed.
The victim was partially clothed, unsteady on her feet and appeared to be intoxicated and under the influence of a stimulant. In another bedroom officers found two other individuals: Katherine Markes, the apartment's legal tenant, and Shane Beaudoin. The victim was taken outside the apartment, where she stated something was put in her drink and that Petitioner and Shane Beaudoin "had started in on her sexually." CR 164. Petitioner and Mr. Beaudoin were both arrested on April 18, 2002.
Petitioner and Mr. Beaudoin were charged by information, and their joint trial commenced on April 30, 2003. At the trial jurors heard testimony from several witnesses, including police officers, a forensic nurse, the victim, the victim's family, other residents of the apartment complex, a toxicologist, criminalists, counselor, and a forensic serologist. Petitioner and Mr. Beaudoin testified at the trial in their own defense. The testimony reflected significantly different stories about the events that took place in the early morning of April 18, 2002. Closing argument took place on June 3, 2003. Two days later the jury returned its verdict, finding Petitioner and Mr. Beaudoin not guilty of forcible rape (count 1), not guilty of forcible rape while acting in concert (count 2), guilty of rape (count 3), guilty of Rape by Use of Drugs (count 4), guilty of kidnapping (count 5). Petitioner was also found guilty of resisting, obstructing, and delay of a peace officer (count 7 of the original information). CR 1926-1929. (The undersigned notes that sometime during the trial an amended information was filed, dropping the charge of anal and genital penetration by a foreign object as charged in count six of the original information.)
Sentencing of both Petitioner and Mr. Beaudoin took place on July 11, 2003. After considering the record, but before hearing argument from any party, the judge stated, "I am in agreement with following the recommendations of the probation department as to both Mr. Beaudoin and Mr. Hurst in regard to the intended sentence for the reasons stated by probation in their reports." CR 1935. Because the Petition raises questions focused on the legality of his sentence, the state judge's remarks after hearing argument and victims statement are quoted at length, as follows:
We'll take Mr. Beaudoin's case first.
Mr. Beaudoin, you're not eligible for probation, so that's out of the question.
You have a prior strike conviction for first degree residential burglary, and that disqualifies you from being considered for probation under Penal Code Section 667 (b)(2).
But even if you were considered eligible for probation under any theory or law, I wouldn't, under any circumstances, grant you probation in light of the facts of this case, your criminal history, et cetera.
I've considered all those factors in Rule 4.414 and others that you're maybe wanting to be placed on probation and having adverse an affect on you; all the other factors listed in that section would mitigate against a grant of probation.
So the real questions come down to the selection of the appropriate term for each offense, and I find under Rule 4.423 that there are no circumstances in mitigation in this case. There are several factors in aggravation under 4.421. I find the following factors in aggravation, (a)(1), (a)(3), (a)(4), (a)(8), (b)(1), (b)(2), (b)(3), (b)(4), and (b)(5).
And what those break down to is that I find that there were, on your part, great -- that this case did involve rape, great threats of bodily harm, that these acts imposed a high degree of cruelty, viciousness and callousness.
Both you and Mr. Hurst did not treat Debra Gaut as a person. You treated her as an object to be utilized in your own sexual gratifications.
I find that she was particularly vulnerable. She was a minor. She was sat upon by you two men, who are much bigger, stronger, in a position where you had her under your complete, complete control and domination.
Even though there were other persons present in that apartment where the rapes occurred, the utilization of drugs and alcohol prevented her, I believe, from calling out to them. She was intoxicated and that's above and beyond that, and the fact that the use of drugs being an element of the offense here.
So I find she was particularly vulnerable.
You induce a minor to participate in this crime with you. You were the person who provided the drug Ecstacy in this case, Mr. Beaudoin. It may not even have happened but for you being the source of that drug and utilizing it on her and as well as yourselves.
So I think that does indicate some planning, sophistication, and professionalism on your part.
These crimes, as well as your prior record, I think, indicate you are a person who is a danger to society.
You have numerous prior convictions as an adult dating from, let's see, 1994 possession of a knife on school grounds; obstructing a peace officer; carrying a concealed weapon in a vehicle, a violation of probation based upon that event; a prior theft; petty theft conviction; a prior battery conviction; a felony residential burglary; a felony level infliction of injury to a spouse or cohabitant; a violation of parole; being under of [sic] influence.
So you have an extensive prior criminal history.
You served a prior prison term that didn't shape you up. You failed on both probation and parole.
So for all those reasons it's clear that an aggravated sentence is appropriate in ...