The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, proceeding pro se, has filed a petition pursuant to 28 U.S.C. §2254. Petitioner challenges his May 30, 2006, Yolo County jury trial conviction for one count of infliction of corporal injury on a spouse, one count of dissuading a witness and one count of threatening to commit a crime resulting in death or great bodily injury. It was also found that petitioner had previously been convicted of infliction of corporal injury on a spouse, had suffered a prior serious or violent felony and had suffered three prior prison terms. Petitioner was sentenced to a term of 18 years, 4 months. Answer to Petition (Answer), filed on May 6, 2009. Petitioner raises the following grounds for relief: 1) erroneous admission of prior bad acts to show propensity to commit the crime and 2) upper term sentence violated the Sixth and Fourteenth Amendments under Cunningham.*fn1 Original Petition (Petition) at 5.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 495, 117 S.Ct. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California Court of Appeal, Third Appellate District, contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
K.G. married defendant in Reno in June 2004. In October 2005, they lived in a trailer parked in the yard of defendant's employer, Zamora Trucking, in Woodland. Defendant worked on October 9, 2005, a Sunday, and returned home around 7:00 or 7:30 p.m. At around 10:00 p.m. he got upset with K.G., eventually accusing her of infidelity. K.G. denied the accusation, making defendant more irate.
As was her custom, K.G. decided to let matters cool down and walked out of the trailer. Defendant yelled at her from the trailer and then went outside. Swearing at her, defendant told K.G. to get in the house or "people are going to hear you and people are going to call the cops."
Defendant then grabbed K.G. by the hair and dragged her to the trailer, repeatedly punching her in the head with his closed fists while telling her to keep quiet. He threw her inside the trailer, causing K.G. to hit her knees. K.G. was on the floor of the trailer in the fetal position, horrified, hysterical, and scared. Defendant closed the trailer door, yelling, "Go ahead, yell, go ahead yell, call the cops, call the cops" while holding his fist about three inches from her mouth.
Defendant picked up a hammer and raised it as if to strike K.G.'s head. He then put the hammer down and said, "Go ahead, call the cops, call the cops, I'll kill you if you call the cops." K.G. had heard this threat before and it usually kept her from calling the police.
Defendant told K.G, "You are not going anywhere" and threw her purse to the opposite end of the trailer. The wounded K.G. asked for ice, which made defendant angrier. K.G. replied, "It feels like I am not in Kansas anymore," and defendant became angrier still, telling her to shut up and saying, "What? Do you want some more of this?"
Later, after having a beer, defendant calmed down and tearfully told K.G. he was sorry. Defendant told her to go out and get some hamburgers. Instead, K.G. drove to a Denny's parking lot, where she stayed for 30 to 45 minutes before driving to the apartment of her friend, K. Gray.
At Gray's apartment, K.G. looked into a mirror and saw a large lump on her forehead and her lips were "busted and bleeding." She also had bald spots from where defendant had pulled out her hair. K.G. called the police and recounted defendant's attack to the responding officer.
According to the officer, K.G. had: "two circular, approximately half-inch scrapes on both sides of her chin. She also had an approximate half-inch bruise in the center of her upper lip and approximately one-inch circular bruise that was swelling in the center of her forehead."
K.G. told the officer she had been involved in approximately 50 physical altercations with her husband during their marriage. Although she said the injuries on her chin were from an incident two months ago, they appeared fresh to the officer. K.G. accepted the officer's offer to get her an emergency protective order.
K.G. testified to prior acts of abuse from defendant. They first lived in Vallejo after marrying. Defendant started to abuse her in October of 2004, when he backhanded her in the face and called her a "F'in bitch." Even though K.G. tried to please him, defendant constantly ...