FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on charges of assault with a firearm with an enhancement for personal use of a firearm, discharge of a firearm at an inhabited dwelling, discharge of a firearm at an unoccupied vehicle, and felon in possession of a firearm. The jury also found true that petitioner had previously suffered two prior strike convictions and two five-year priors within the meaning of Cal. Penal Code § 667(a)(b) through (i). Petitioner was sentenced to twenty-five years to life on count 1, plus four years for the firearm enhancement and ten years for the two five-year priors. The sentence on the remaining counts were imposed but stayed pursuant to Cal. Penal Code § 654. Petitioner raises six claims in his petition that his prison sentence violates the Constitution.
Petitioner filed an appeal raising one issue (ground one of the instant petition). (Answer, Exs. B & D.) On August 26, 2002, the California Court of Appeal, Third Appellate District, affirmed the conviction. (Answer, Ex. E.)
Petitioner filed a petition for review in the California Supreme Court, which was denied on October 30, 2002. (Answer, Ex. F.)
On January 29, 2004, petitioner filed a habeas petition in the California Supreme Court, raising the six claims raised in the instant petition. (Answer, Ex. G.) On December 1, 2004, the habeas petition was denied. (Id.)
On January 7, 2005, petitioner filed the instant petition. (Docket No. 1.) Respondent filed an answer on April 4, 2005. (Docket No. 10.) Petitioner filed a traverse*fn1 on June 27, 2005. (Docket No. 17.)
In statements to police shortly after the crime, several witnesses inculpated [petitioner], identifying him as the one who fired shots. At trial, however, those witnesses gave different versions of the events, generally exculpatory to [petitioner]. Because the jury, given the verdicts, necessarily credited the evidence inculpating [petitioner], [the court] summarize[s] that evidence here.
A dispute arose between [petitioner] and his brother, Harvey "Tuggy" Todd, concerning a pit bull. [Petitioner] and Lacresia Eagles, [petitioner's] wife, went to a residence to get the dog. When they returned home, Harvey called and told them to come get the dog's leash. When Eagles and [petitioner] arrived to get the leash, Harvey and [petitioner] began to argue over the ownership of the dog. They tried to fight, but Eagles got between them and prevented it. Harvey ran over to [petitioner's] car and slashed a tire with a knife.
[Petitioner] drew a handgun and fired several shots at Harvey as Harvey ran away. [Petitioner] chased Harvey between two buildings. Soon, [petitioner] returned to the car and got in as Eagles drove it away, even though one tire was flat.
Four nine-millimeter casings were found on the ground where [petitioner] fired the shots. In addition, one of the shots went through the wall of a residence and into a room where a person was sleeping. Another shot hit a car parked in the street. Gunshot residue was found on [petitioner's] right hand. (People v. Todd, slip op. at 1-2.)
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court 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 the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "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." Id. at 412; 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.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner's first claim is that his Sixth and Fourteenth Amendment rights were violated by the trial court's erroneous jury instruction on assault. Petitioner argues that the version of CALJIC 9.00*fn3 used by the trial court lacked key language about intent. Petitioner contends that the fact that a result is a natural and probable consequence of an intended act is insufficient to prove the intent element required for assault with a deadly weapon, citing People v. Smith, 57 Cal.App.4th 1470 (1997).
As both parties point out, as a result of People v. Smith, CALJIC 9.00 was edited to include a bracketed element between the first and second elements:
2. At the time the act was committed the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person;
Respondent notes that the California Supreme Court re-examined the mental state for assault in People v. Williams, 26 Cal.4th 779 (2001). As a result of Williams, the second bracketed element from People v. Smith was deleted and replaced by the following language:
2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural, and probable result of this act that physical force would be applied to another person; CALJIC 9.00 (2002 revision).*fn4
The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state ...