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Salcedo v. Ollison

April 17, 2009

JOSE GUZMAN SALCEDO, PETITIONER,
v.
D.L. OLLISON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), the Objections to the Report and Recommendation filed October 17, 2008, and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge.

The Court notes that Petitioner's summary of proceedings is incorrect. The Magistrate Judge issued a R&R on January 30, 2008.*fn1 Contrary to Petitioner's argument, a Notice of Filing of Magistrate Judge's Report and Recommendation ("Notice") and the R&R are on the case docket. (Dkt. Nos. 24-25.) Further, Petitioner's argument that the Court did not provide Petitioner a copy of the R&R is incorrect. The Notice and R&R were mailed to Petitioner and were not returned by the postal service. (See Dkt. No. 29 at 1.) No objections were received. On July 21, 2008, the District Judge issued an Order Adopting Magistrate Judge's Report and Recommendation and entered Judgment. (Dkt. Nos. 26-27.)

On August 7, 2008, Petitioner filed a motion to alter or amend the judgment, in which Petitioner stated that he did not receive the R&R. (Dkt. No. 28.) On September 18, 2008, the District Judge vacated the Order Adopting Magistrate Judge's Report and Recommendation and Judgment, and granted Petitioner leave to file Objections. (Dkt. No. 29.) Petitioner filed Objections on October 17, 2008.

A. GROUNDS ONE AND THREE: Lesser Included Offense

The Magistrate Judge found that there is no clearly established United States Supreme Court law requiring a lesser included offense instruction in non-capital cases. (R&R at 7-8.) In his Objections, Petitioner cites to Vickers v. Ricketts, 798 F.2d 369 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987), for the proposition that a trial court's refusal to give an instruction on a lesser included offense violated Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed. 2d 392 (1980). (Objections at 10.) Contrary to Petitioner's argument, Vickers is a capital case. Vickers, 798 F.2d at 370. Petitioner's objection is without merit.

B. GROUNDS TWO, FOUR AND SIX: Sufficiency of the Evidence

In these grounds, Petitioner claims there was insufficient evidence to support his conviction of assault on a peace officer with a semiautomatic firearm, and insufficient evidence to support the jury's finding that he used a firearm in the commission of assault on a peace officer with a semiautomatic firearm. (R&R at 8-12.)

The Objections argue that People v. Williams, 26 Cal. 4th 779, 790, 111 Cal. Rptr. 2d 114 (2001), "has called into question whether the act of merely pointing a gun at another person constitutes the crime of assault with a deadly weapon." (Objections at 14.) Petitioner misapprehends Williams, which held that "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." Williams, 26 Cal. 4th at 790.

Contrary to Petitioner's assertion, California law is clear that pointing a gun at a person is sufficient to convict a defendant of assault with a deadly weapon and assault on a peace officer. In People v. Raviart, 93 Cal. App. 4th 258, 112 Cal. Rptr. 2d 850 (2001), the defendant was convicted of two counts of assault with a firearm on a peace officer. The defendant argued that "[t]he only act performed by [defendant] upon which an assault charge could be based was the single act of pointing the gun at Officer Keller." Id. at 262. The court held that "[a]ssault with a deadly weapon can be committed by pointing a gun at another person" and that "it is not [even] necessary to actually point the gun directly at the other person to commit the crime." Id. at 263 (internal citation omitted); see also People v. Chance, 44 Cal. 4th 1164, 1175-76, 81 Cal. Rptr. 3d 723 (2008) (approving Raviart's reading of Williams and affirming conviction of assault with a firearm on a peace officer).

Petitioner's argument that there was insufficient evidence that he "use[d]" a firearm fares no better.*fn2 (Objections at 18.) "[A] defendant uses a firearm by intentionally displaying it in a menacing manner." People v. Grandy, 144 Cal. App. 4th 33, 42, 50 Cal. Rptr. 3d 189 (2006).

For the reasons set forth in the R&R, Petitioner has not shown that the evidence was insufficient for the jury to convict him of assault on a peace officer with a semiautomatic firearm, and to find that Petitioner used a firearm in the commission of assault on a peace officer with a semiautomatic firearm. (R&R at 10-12.) In assessing a sufficiency-of-the-evidence argument, a reviewing court must give "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed 2d 560 (1979). Petitioner's disagreement with the inferences drawn by the jury is insufficient. Petitioner's objection is without merit.

C. Grounds Eight and Thirteen: Illegal Search and Seizure

Petitioner claims that his home was illegally searched. The Magistrate Judge found that these grounds were barred by Stone v. Powell, 428 U.S. 465, 481-82, 96 S.Ct. ...


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