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Salcedo v. Ollison

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


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. 3037, 49 L.Ed. 2d 1067 (1976). (R&R at 12-13.)

The Objections argue that the limitations on federal habeas review of Fourth Amendment claims articulated in Stone v. Powell do not apply to ineffective assistance of counsel claims. (Objections at 20.) Petitioner argues that his trial counsel was ineffective in a different criminal case (Case No. FWV 025776)*fn3 for failing to argue that Petitioner's property should have been returned to him after charges in that case were dismissed. (Id. at 20, 23-24.)

Petitioner's objection is without merit. Even assuming Petitioner's counsel was ineffective in a different criminal case, the claim would not be cognizable on federal habeas review in this case because it would not invalidate Petitioner's conviction or change the duration of his confinement in prison. 28 U.S.C. § 2254 (habeas relief available to petitioner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States"); see Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) ("[T]he writ of habeas corpus is limited to attacks upon the legality or duration of confinement."). Petitioner's objection is without merit.

D. Ground Ten: Ineffective Assistance of Counsel

In his Objections, Petitioner raises new reasons why his trial counsel was ineffective that were not set forth in his original petition. (Objections at 25-26.) Petitioner's attempt to raise new grounds for relief in his Objections is improper. See Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) ("("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act."), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam), cert. denied, 507 U.S. 978 (1993); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief."), cert. denied, 514 U.S. 1026 (1995).

Even if Petitioner's new allegations of ineffective assistance of counsel were considered, Ground Ten would be without merit. In the criminal case in which Petitioner was convicted, Petitioner has not shown any basis for a motion to dismiss the charges under Cal. Penal Code § 995 or at common law. Trial counsel is not ineffective for failing to file a meritless motion. James v. Borg, 24 F.3d 20, 27 (9th Cir.), cert. denied, 513 U.S. 935 (1994).

Petitioner argues that his counsel should have called a police officer named Zour and Louana as witnesses at his trial. (Objections at 26.) According to Petitioner, his daughter-in-law Louana Salcedo ("Louana") called the police on March 10, 2002, at about 8:00 a.m. Even though a document entitled "911 transcript" was identified at Petitioner's trial, it was not a 911 call, but a non-emergency call to the police.*fn4 Petitioner alleges that the call was not made at 11:00 a.m., as Officer Yoder testified, but at 8:00 a.m.*fn5 Petitioner attaches Louana's declaration signed on October 7, 2008; a trial exhibit entitled "911 Transcript"; and a computer printout from March 10, 2002, apparently showing a police dispatch starting at about 10:57 a.m. (Objections, Ex. A.)

Petitioner does not explain what Zour's testimony would have been. Presumably, Louana would have testified that she didn't call 911 and that she made the call to the police at 8:00 a.m., not at 11:00 a.m. Even with this testimony, Petitioner has not established a reasonable probability that the result of the proceeding would have been different.*fn6 Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

Petitioner makes a conclusory allegation, without evidentiary support, that his counsel "allowed a trial judge to place a $1 Million bail from one case, to another case without providing a bail hearing." (Objections at 26.) Even assuming the allegation were true, Petitioner has failed to show any cognizable prejudice. Strickland, 466 U.S. at 694.

Petitioner claims that his trial counsel should have asked that police to bring to court an AK-47 assault rifle seized from Petitioner.*fn7 (Objections at 26.)

Again, even assuming the allegation to be true, Petitioner has failed to show a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

Petitioner claims that trial counsel should have moved to have Petitioner's money returned when Officer Juarez allegedly testified that he confiscated money.*fn8 (Objections at 26.) Alternatively, Petitioner argues his counsel should have found out "what the Officer did with the money." (Id. at 26-27.) Again, Petitioner fails to show any cognizable prejudice. Strickland, 466 U.S. at 694.

Finally, Petitioner sets forth a series of financial transactions with his first and second trial counsel. According to Petitioner, he paid his first counsel, Lombardo, $40,000 but still owed her $20,000.*fn9 Petitioner then retained his second counsel, Bernstein, for $100,000. Lombardo supposedly became angry with Petitioner because Petitioner had still not paid the $20,000, and Lombardo asked another of her clients to "put some pressure on Petitioner's family to get him to pay the $20,000." (Objections at 27.) Petitioner told Bernstein, but "Bernstein did nothing about it." (Id.) Petitioner has failed to show a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

E. Ground Eleven: Competency

Petitioner's Objections raise new arguments. Petitioner contends that he was not found sane at the time the crimes were committed. (Objections at 28.) Petitioner is incorrect. The jury found that Petitioner was sane at the time he committed the crimes. (LD 1 at 498-99, 514-26; LD 2 at 1038-42.) Petitioner further alleges that there was conflicting evidence as to his sanity. (Objections at 27-28.) As noted above, however, it is "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, 443 U.S. at 319. Finally, Petitioner contends that there was an agreement with the trial judge that he plead not guilty by reason of insanity in exchange for commitment to a mental hospital. (Objections at 27.) Petitioner concedes there is no record of any such agreement or proceeding before the trial judge. (Id.) Nor does Petitioner provide any support for his contention that a plea agreement existed or that the trial judge failed to make a record of it. Petitioner's objections are without merit.

F. Grounds Fourteen, Fifteen and Sixteen

Petitioner's objections under these grounds do not raise new arguments. The objections are without merit for the reasons stated in the R&R. (R&R at 16-23.)

G. Grounds Five and Twelve: Cumulative Error

"[T]he combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03, 93 S.Ct. 1038, 35 L.Ed. 2d 297 (1973)). Here, the prosecution's case was strong, and the Court finds no error. In evaluating all of Petitioner's grounds, including those articulated for the first time in his objections, Petitioner has not established cumulative error that "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (citation omitted).

IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.


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