ORDER MODIFYING AND ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner James Flores was convicted in state court on November 16, 1998, of simple kidnapping and forcible oral copulation.*fn1 The jury found that Flores had kidnapped his victim, and that his movement of the victim substantially increased the risk of harm. On June 22, 1999, Flores was sentenced to 25 years to life in state prison.*fn2
Following the California Supreme Court's denial of Flores' petitions for habeas review, Flores sought habeas relief in this court. His federal habeas petition, as amended on July 7, 2005,*fn3 raises three claims: (1) the California Court of Appeal erred when it failed, after reversing the simple kidnapping conviction, to vacate the sentence enhancement under California Penal Code § 667.61(d)(2) ("Claim 1(a)"),*fn4 and the evidence was insufficient to support the sentencing enhancement ("Claim 1(b)");*fn5 (2) the trial court improperly denied petitioner's request to excuse juror number 6 ("Claim 2");*fn6 and (3) petitioner's appellate counsel provided ineffective assistance by neglecting to challenge the Court of Appeal's failure to vacate the sentence enhancement under § 667.61(d)(2) ("Claim 3(a)")*fn7 , and by failing to argue that a sentencing enhancement based on aggravated kidnapping was "totally inappropriate" ("Claim 3(b)")*fn8 .
On June 15, 2006, Magistrate Judge Victor B. Kenton filed a Report and Recommendation concluding that Claim 1(b) merited habeas relief and recommending that the court grant a conditional writ of habeas corpus giving the State of California 60 days to resentence Flores.*fn9
Pursuant to 28 U.S.C. § 636, the court has reviewed the petition, all of the records and files herein, Judge Kenton's Report and Recommendation and respondent Yates' objections thereto, and has made a de novo determination of the issues presented. Based on its de novo review, the court approves and adopts the findings and conclusions set forth in Judge Kenton's Report and Recommendation with respect to Claims 2 and 3. With respect to Claim 1(b), the court declines to adopt Judge Kenton's findings and conclusions for the reasons stated, and denies the claim.
The facts, as set forth in the California Court of Appeal's opinion, are as follows:
[Flores] and his wife . . . were married for 23 years and had 4 children. They separated in April 1998, and [his wife] moved to Bakersfield to live with her sister. . . . [Flores] remained in the family apartment in Isla Vista.
About a month after the separation, [Flores' wife] agreed to exchange automobiles with [Flores] so that he could visit his mother in New Mexico. On May 24, 1998, [Flores' wife and her sister] traveled from Bakersfield to Isla Vista, arriving in the early evening.
[Flores] was not at home when they arrived and [his wife] telephoned him from a public telephone. [Flores] seemed angry when [she] informed him that her sister had accompanied her.
[Flores' wife and her sister] returned to the Isla Vista apartment. [His wife] parked her automobile on the street and [the two women] walked to the apartment. When [Flores] greeted them, he appeared 'angry' and 'crabby.' [Flores, his wife, and her sister] walked to the apartment building parking lot. [Flores] began removing personal items from his automobile. He became angry when he learned that [his wife] had parked on the street. [Her sister] volunteered to move [the] automobile to the parking lot.
Once [the sister] left, [Flores] asked [his wife] if she would 'give [him] any pussy?' [She] responded, 'No,' but [Flores] said, 'Yes.' [Flores] grabbed [his wife] by her hair and arm, and pushed her through the parking lot along a walkway to the apartment. [She] was frightened and held on to a stairway railing but [Flores] pulled her away.
When they reached the apartment, [Flores] threw [his wife] inside causing her to hit her head on a glass table. [She] attempted to keep the front door open with her legs and feet. Flores kicked and 'stomp[ed]' on her legs and feet so that he could close the door. He then locked the deadbolt.
[Flores] pulled [his wife] from the floor and threw her on the stairway, where she hit the back of her head on the wall or the railing. [Flores] pushed her upstairs and ordered her to disrobe. [She] complied because she was frightened. [Flores] hit [her] in the chest, arm, and head with his closed fist. He ordered her to orally copulate him.
Meanwhile [her sister] drove to the parking lot and walked to the apartment. Upon finding the door locked, she called for [her sister, Flores' wife]. When no one responded, she walked to the back of the apartment building and threatened to summon police officers.
[Flores] forced [his wife] to appear at the window and tell [her sister] to wait. He choked [his wife] as he forced her to the window.
[Flores] then pushed [his wife] back into the master bedroom where he sodomized her. Afterwards, [Flores] threatened to kill [her] if she informed others of the sexual assaults. He also threatened to kill her 'in front of' their son 'to see what kind of man [the] son was.'
[His wife] hurriedly dressed and went to the parking lot. As she and [her sister] prepared to leave, [Flores] threatened her against disclosing the assaults.
[Flores' wife and her sister] drove to the Santa Barbara Police Department and reported the crimes. [Flores' wife] had contusions on her forehead, head, leg, and back. To the interviewing police officer, she ...