The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS
BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1) and Respondent's Answer and Memorandum of Authorities (Ct. Rec. 12). Petitioner appears pro se and Respondent is represented by Deputy Attorney General Patrick J. Whalen. This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.
At the time his petition was filed, Petitioner was in custody in Soledad, California, pursuant to his 2001 Sacramento County conviction for second degree murder, assault with a firearm, and firearm enhancements. (Ct Rec. 1 at p. 1.) Petitioner challenges 2001 Sacramento County convictions. (Ct. Rec. 1.)
The California Supreme Court described the facts:
Eddie and Laura Sanchez and their children moved next door to defendant in April 1996. In the early morning hours of November 15, 1999, defendant visited the Sanchez home, shot and killed Eddie, and then wounded Clarence Redoble, a friend of defendant's who had accompanied him. Eddie had been urging defendant out the door, when defendant pulled out a Kimber .45 pistol, loaded with Black Talon hollow-point bullets, and fired, while members of the Sanchez family sat in the living room watching a movie. According to witness accounts, no argument or threatening conduct preceded the shooting.
The previous day, the Sanchez family had hosted a barbecue. They dug a fire pit in the back yard. Two of Eddie's brothers, John and Anthony, their families, and Laura's younger sister, Tracey, were at the house. This was not unusual. The families were close-knit. Family members visited often and frequently stayed overnight.
About a month before the shooting, Anthony was sleeping on the couch at Eddie's house, when he was awakened by defendant knocking on the door. Defendant told Anthony someone was trying to burglarize Eddie's car, and then he said, "Don't worry, I got something for them," showing Anthony a gun he had tucked in his waistband. Anthony's impression was that defendant "was a little off" and "kind of odd."
Clarence Redoble, defendant's friend, lived five minutes away from defendant, and, as he often did, he saw defendant several times on November 14, the day before the shooting. That morning, at defendant's insistence, he brought his pit bulls over to defendant's house and released them in the crawl space under the house as a security precaution. Defendant thought people were trying to gain access to his house by tunneling their way into the crawl space. Redoble went back later to feed the dogs and turned them loose in the backyard.
By nightfall on November 14, the weather had turned cold and rainy. The Sanchez family rented three videos and went inside for a dinner of hot soup and a movie marathon. Some family members watched the movies; others fell asleep. Most of the children were put to bed.
Sometime after 11:00 p.m., defendant called the Sanchez house; Laura's sister Tracey answered the phone. Defendant said he needed to talk to a friend and wanted Tracey to come over. She refused. Defendant asked to speak to Eddie, but Tracey told him Eddie was asleep and then hung up the phone.
Around midnight, Clarence Redoble returned to defendant's house and found him standing outside in the rain. Defendant said he had locked himself out of the house. It was cold, and Redoble had tucked his hands into his jacket pockets, but defendant asked Redoble to take his hands out of his pockets, which made Redoble think defendant was "tripping." Redoble checked the doors and windows to see if there was any way to get into the locked house. Finally, he suggested breaking a small window in the side door, which he could easily repair the next day. Defendant rejected that idea. He wanted to go to Eddie's house to call a locksmith. Redoble thought ut was too late to disturb the neighbors, so he offered to go to his own house to call a locksmith. Defendant was adamant. As an alternative, Redoble offered to go next door alone and ask the Sanchezes to call a locksmith so that defendant, who used crutches, would not have to negotiate the path on his crutches in the rain. Defendant stubbornly followed Redoble to Sanchez's door.
Eddie answered Clarence Redoble's knock and invited him and defendant inside. Defendant refused to sit down and remained standing just inside the door, resting on his crutches, while Eddie looked up locksmiths in the telephone book and made couple of calls.
Defendant's behavior was unusual. According to witnesses, he was mumbling to himself, pointing to different people, saying, "Oh, there's one . . . . by the window. Oh, [that]'s her." Clarence Redoble wanted to leave, but defendant resisted. He asked to go to the backyard to see Eddie's dogs. Eddie refused, explaining it was so cold and raining outside and defendant was on crutches. Defendant then started to get aggressive, demanding to see the backyard. Eddie sought to soothe defendant's agitation, telling him, "no one's gonna hurt you here."
At some point during this exchange, Eddie went into the kitchen and put a barbecue fork in his back pocket. Eddie's brother John saw him do so and expressed concern. Eddie said: "Everything's okay. Don't worry about it." Defendant was wearing a jacket, and he kept putting his hand in the jacket pocket, which had a noticeable bulge.
The front door had been opened and cold air was seeping into the house. Eddie asked defendant to leave, telling him the baby would get sick because of the cold air coming in through the open door. Defendant refused, saying, "No, I don't wanna go." He seemed to get upset, and he asked Eddie, "Are you packing?" Eddie answered, "No, what do I need a gun for?" and then asked, "Why? Does he have a gun?" Eddie was standing next to defendant. He patted or frisked defendant's jacket and then stepped back a little. Eddie had nothing in his hands. He never touched the fork in his back pocket. Defendant pulled the pistol from his jacket and fired several shots at Eddie. Clarence Redoble was holding defendant's arm, and when he tried to pull defendant away, defendant turned the gun toward Redoble and fired a shot that grazed Redoble's hip.
Eddie was flung backward by the blast. His body was sprawled on the on the dining room floor. One of the Black Talon hollow-point bullets, with which defendant had loaded the gun, had lacerated two major blood vessels in Eddie's lower abdomen. After the shooting, Eddie's brother Anthony was the first person to reach defendant, who was standing right outside the door, the gun still in his hand. Defendant turned the gun toward Anthony, but Anthony launched himself at defendant, grabbed his gun hand, and bashed hin in the face. Defendant dropped his crutch, and Anthony picked it up and beat defendant until the crutch broke. Anthony thought defendant was trying to get the gun, which had fallen to the ground during the struggle, but John got to it first. John picked the gun up, placed the barrel against defendant's head, but he did not pull the trigger. He took the gun inside the house and placed it on the dining room table.
A patrol officer heard the gunshots and arrived at the scene within two minutes. He found defendant sitting in the middle if the lawn, bloodied but conscious. The paramedics arrived and transported Eddie to the hospital, where he died. Officers who searched defendant's house after the shooting found more guns and ammunition. They also found a note, written on an old parking ticket, that said, "It might not be Ed, but Jay."
As a result of the struggle that followed the shooting, defendant suffered a possible concussion, a fractured right wrist, an abraded and crushed little finger, and metacarpal fractures of his left hand. His toxicological screen was positive for methamphetamines, benzodiazepines, and opiates. Defendant also had a number of serious pre-existing medical problems. He suffered from osteoarthritis and high blood pressure. A broken leg had healed improperly and had required corrective surgery in September 1999. Defendant had to use crutches until his leg healed and had prescriptions for his various ailments, including pain killers. He supplemented his Social Security disability income by selling drugs.
The jury learned more background information about defendant through the testimony of Dr. Charles Schaffer, a psychiatrist who testified concerning defendant's mental condition. In 1998, defendant was the victim of an aggressive home invasion robbery. Evidence suggested that a family member------perhaps defendant's niece, Corina Fajardo------and other people with whom defendant was acquainted were involved in the robbery. The intruders tied defendant up, gagged him, and beat him, taking money, drugs, and jewelry.
After the robbery, defendant's friends, neighbors, and relatives noticed that his behavior became increasingly bizarre. He seemed more paranoid, nervous, and vulnerable. Cindy Fajardo, defendant's half sister, lived with him for a time, but moved out when defendant accused her of being part of a conspiracy against him. Defendant's leg injury also seemed to increase his paranoia. Defendant went through a complete personality change; he was "tripping .... thinking the wrong thoughts." Defendant said his cat was acting strangely because it could hear people tunneling under the house. Defendant also believed people were trying to break into his house through the attic and were planting microphones. Defendant inquired from a salesperson named Pete Cabanyon about installing a home security system. One neighbor, Joaquin Miranda, saw defendant wearing a headset that defendant claimed could detect people in the backyard and the attic. The day before the shooting, Miranda heard defendant calling for help. Defendant said that he had been shot, but when Miranda examined him, he found no injuries. Defendant made repeated 911 calls. He told officers that "someone was trying to put a satellite dish on top of his house so they could beam rays down from space and take over his body." The day before the shooting, he claimed he heard gunshots in the attic, but responding officers found nothing. Defendant's paranoia often focused on Eddie Sanchez and sometimes on one of Eddie's co-workers, Jay Moffit. He accused Jay and Eddie of stealing from him. He thought there was a "Hispanic conspiracy against him" and that Eddie was "running it." He told people the harassment from Eddie was getting out of hand.
Prior to the shooting, defendant reported he had been "snorting a couple of lines" of methamphetamine every day for at least six months.
Dr. Charles Schaffer personally interviewed defendant, and reviewed statements of friends, relatives, and neighbors, as well as records from the county jail and reports of other mental health professionals, and concluded that at the time of the shooting defendant was suffering from an "amphetamine induced psychotic disorder, with delusions." Dr. Schaffer noted that psychotic symptoms "can include delusions [or] thoughts that are out of touch with reality . . . . perceiving things that don't exist . . . seeing things that are not based on any real object . . . " Defendant denied experiencing any psychotic symptoms at the time of the interview with Dr. Schaffer. He claimed her could remember only bits and pieces of the confrontation with Eddie. He recalled clearly why he went to the Sanchez house. Hee needed a locksmith, and his auto club card was locked inside the house. He remembered asking Eddie about a weapon and recalled nothing else until he woke up in the University of California hospital.
Although Dr. Schaffer discounted defendant's claim of amnesia, he believed that his diagnosis of psychotic disorder with delusions was sound, based in part on the stories related to him by defendant's relatives and neighbors. He rejected----as highly improbable-----the possibility that defendant was malingering. He also opined, in support of defendant's claim of imperfect self-defense, that a person suffering from defendant's symptoms would have a heightened sensitivity to threat, especially when crowded by other people. Defense counsel sought to have all of the witnesses on whose statements Dr. Schaffer relied, including Joaquin Miranda, Pete Cabanyon, and Cindy Fajardo, testify during the trial. The court sustained the prosecutions objection that this evidence would be cumulative, but left the possibility the defense could present these witnesses if Dr. Schaffer failed to recall what they said.
The jury found the defendant guilty of the second degree murder of Eddie Sanchez (Pen. Code,§§ 187, subd. (a))n1 and the assault of Clarence Redoble (§§ 245. subd. (a)(2)). As to the murder charge, the jury found true an allegation that defendant personally used a firearm in violation of section 12022.53, subdivision (d). As to the assault charge, the jury found true an allegation that defendant personally used a firearm within the meaning of section 1203.06, subdivisions (a)(1), and section 12022.5, former subdivision (a)(1)(now subd.(a)). In a separate sanity phase of the trial, the jury found defendant was legally sane during the commission of the crimes.
People v. Wright, 35 Cal 4th 964, 966-971 (2005)(Wright I), (Lodged Doc. Document 7 at 4-7). These facts were incorporated in the second Court of Appeal decision on September 2, 2005. (Lodged Doc. G at 2.)
As indicated, after a jury trial in the Sacramento County, California Superior Court, the Petitioner was found guilty of second degree murder*fn1 and assault*fn2 , both with a firearm.*fn3 *fn4 And, as noted, the jury found defendant was legally sane when the crimes were committed. (Lodged Document G at 1,4.) The trial court sentenced defendant to a total aggregate sentence of seven years plus 40 years to life. (Lodged Doc. G at 4.)
After trial, defendant appealed and the Third Appellate District reversed on August 4, 2003, holding imperfect self-defense may be predicated on delusions, and the trial court prejudicially erred in excluding as cumulative the direct testimony of witnesses who had observed defendant's bizarre behavior. (Lodged Doc. G at 4.) Thereafter the California Supreme Court (Wright I), on May 26, 2005, reversed the appellate court, concluding it did not need to address whether the doctrine of imperfect self-defense applied where the defendant's actual but unreasonable belief in the need to defend himself was based on delusions resulting from mental illness or voluntary intoxication, without any objective circumstances suggestive of a threat. The California Supreme Court said it did not need to decide the issue because defendant was able to claim imperfect self-defense, the jury heard evidence supporting that defense, and the trial court's exclusion of additional evidence supporting that defense was not prejudicial to defendant. (Lodged Doc. G at 4-5.)
On remand back to the Third Appellate District, the appellate court was directed to consider Mr. Wright's remaining contentions that the that the trial court prejudicially erred: (1) by refusing his two requested modifications to a jury instruction on imperfect self defense; (2) by excluding witnesses at the sanity phase of trial; (3) by giving an erroneous insanity instruction; and (4) by imposing a sentence which is cruel and unusual both on the face of the statute and as applied. (Lodged Doc. G at 5-15.) On September 2, 2005, the Third District Court of Appeal issued an unpublished opinion affirming Petitioner's conviction and sentence. (Lodged Document G at 16.) Petitioner then filed a petition for review (Lodged Document H) presenting the following eight issues to the California Supreme Court:
(1) Does CALJIC No. 5.17, the instruction on imperfect self-defense, adequately explain the relevance of intoxication and delusions to an unreasonable belief in the need to defend oneself and was it prejudicial error for the trial court to refuse defendant's requested modification?
(2) Is CALJIC No. 5.17, the instruction on imperfect self-defense, legally flawed because it fails to define "wrongful conduct," and was it prejudicial error for the trial court to refuse defendant's requested modification?
(3) Is the Court of Appeal correct that the "unlawful or wrongful conduct" referred to in the last paragraph of CALJIC No. 5.17 includes any unlawful conduct, such as carrying a concealed weapon, whether or not that conduct directly created the circumstances which led to the defendant shooting the victim in an unreasonable belief in the need to protect himself from great bodily injury or death?
(4) Did the Court of Appeal exceed its jurisdiction by making a factual finding that appellant engaged in unlawful conduct by carrying a concealed weapon without affording him notice, right to jury trial or an opportunity to present a defense?
(5) Was it prejudicial error to exclude the witnesses' to defendant's bizarre behavior from testifying during the sanity phase, given that the defendant bears the burden of proof?
(6) Is CALJIC No. 4.02 a correct statement of the law of insanity?
(7) Under the federal and state constitutions, is Penal Code section 12022.53 cruel and/or unusual on its face?
(8) Under the federal and state constitutions, is the 40 years-to-life sentence imposed for second degree murder by using a gun within the meaning of Penal Code section 12022.53 cruel and/or unusual punishment, as applied to appellant? (Lodged Document H at 1-2.)
The California Supreme Court denied Mr. Wright's second petition for review on December 21, 2005. (Lodged Document I.) On December 11, 2006, Mr. Wright filed his petition for writ of habeas corpus with this Court. (Ct. Recs. 1, 5.)
In his federal habeas petition, Mr. Wright raises seven allegations of trial and appellate court error:
(1) did the trial court err by precluding (during the guilt phase) lay witness testimony with respect to defendant's bizarre behavior prior to the shooting;
(2) did the trial court err by refusing to modify CALJIC No. 5.17 to explain how Mr. Wright's delusions could support voluntary manslaughter;
(3) did the trial court err by refusing to modify CALJIC 5.17 by failing to define "wrongful conduct";
(4) did the appellate court err by failing to reverse in order to give Mr. Wright notice, a trial, and a chance to present a defense to the court of appeal's declaration that Mr. Wright committed ...