The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE [Doc. No. 7]; (2) GRANTING IN PART AND DENYING IN PART PETITION FOR A WRIT OF HABEAS CORPUS; (3) ISSUING A CONDITIONAL WRIT OF HABEAS CORPUS; and, (4) ISSUING A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding pro se with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner is challenging his San Diego County Superior Court convictions of sexual battery by restraint (count 1), attempted forcible oral copulation (count 2), forcible oral copulation (counts 3-4); kidnapping for oral copulation (count 5), robbery (count 6), and making a criminal threat (count 7), along with his sentence of 40 years-to-life in state prison. (Pet. at 1-2.) Petitioner contends that: (1) he was improperly tried in San Diego County Superior Court on count three because the criminal behavior underlying that count took place in Ventura County; (2) California Penal Code § 784.7, which provides for venue on count three in San Diego County, is unconstitutional; (3) the retroactive application of § 784.7 violates due process and constitutes an ex post facto law; (4) prosecution on count three was barred by the statute of limitations; and (5) there was insufficient evidence to support the conviction on count two. (Pet. at 6-9a; Attachment to Pet. at 1-26.)
Respondent has filed an Answer. (Doc. No. 6.) Respondent contends that habeas relief in unavailable because Claim One does not present a federal question, and because the denial of all of Petitioner's claims by the state courts was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and did not involve an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. (Memorandum of Points and Authorities in Support of Answer ["Ans. Mem."] at 5-20.) Respondent also argues that an evidentiary hearing is unnecessary and the Court should not issue a Certificate of Appealability. (Id. at 21.) Petitioner has not filed a Traverse.
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Peter C. Lewis, which finds that Claim One does not present a federal issue, and that the adjudication by the state appellate court of the remaining claims was neither contrary to, nor involved an unreasonable application of, clearly established federal law. (R&R at 6-18.) No objections to the R&R have been filed.
The Court has reviewed the R&R pursuant to the provisions of 28 U.S.C. § 636(b)(1), which states in relevant part that: "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the following reasons, the Court ADOPTS in part and DECLINES TO ADOPT in part the findings and conclusions of the Magistrate Judge, GRANTS in part and DENIES in part the Petition for a writ of habeas corpus, ISSUES a conditional writ of habeas corpus requiring Respondent to release Petitioner from the custodial constraints arising from his conviction on count three unless, within a reasonable time, Petitioner is resentenced on count three, and ISSUES a Certificate of Appealability encompassing all claims in the Petition.
Evidence presented at trial established that Petitioner sexually assaulted a co-worker (victim Dianne) in Ventura County, California, in 1997, although she did not report the crime until 2002. (Lodgment No. 8, People v. Noi, No. D047552, slip op. at 2-3 (Cal. App. Ct. Feb. 28, 2007); Lodgment No. 3, Reporter's Tr. ["RT"] at 31-35.) Petitioner had offered the victim a ride home, but instead parked so close to a building that the victim was unable to open her door; he unzipped his pants, grabbed the victim's head, and forced her mouth onto his penis until he ejaculated; although the victim protested, she did not fight him because he was much stronger and she was afraid he would become violent. (Id.) Because Petitioner did not have a prior felony conviction at that time, he was exposed to a maximun sentence of three, six or eight years in state prison as a result of his 1997 criminal conduct.*fn1 See Cal. Penal Code § 288a(a)(c) (1997). He was also at that time entitled under state law to be tried in Ventura County.*fn2
In 1998, the California legislature enacted Penal Code § 784.7,*fn3 which created an exception to the general rule of venue codified in § 777. Section 784.7 created venue in any county in which one of several enumerated sex offenses occurred, if the defendant and the victim were the same in all of the charged offenses. Petitioner's 1997 offense (forcible oral copulation) is one of the enumerated offenses in § 784.7. See Cal. Penal Code §§ 288a(a)(c), 784.7(a). In 2002, the California Legislature revised § 784.7 to eliminate the requirement that the defendant and victim be the same, and added a provision for consolidation of charges from different counties, subject to a hearing pursuant to § 954 during which the prosecutor is required to present written agreement of the district attorneys of each county regarding venue. See Cal. Penal Code § 784.7(a).
Petitioner attempted to sexually assault a different victim (victim Audrey) in San Diego County in 2003. (Lodgment No. 8, People v. Loi, No. D047552, slip op. at 3-4.) That offense is not enumerated in § 784.7. However, in March or April of 2003, Petitioner sexually assaulted a third victim (victim Hitomi), also in San Diego County. (Lodgment No. 8, People v. Loi, No. D047552, slip op. at 5.) Petitioner approached the victim as she was walking toward her car; he threatened her with a knife and told her that he knew her name, where she lived and the name of her boyfriend; he forced her to walk to his car where he forced her to orally copulate him until he ejaculated; he then demanded her wallet, took $300, reminded her that he knew where she lived and who her boyfriend was, and warned her that if she went to the police "you know what's going to happen." (Id.) The forcible oral copulation offense is enumerated in § 784.7. See Cal. Penal Code § 288a(a)(c)(2) (2003); § 784.7(a). As set forth in greater detail below, because the offenses against victims Dianne and Hitomi are enumerated in § 784.7(a), the joinder provision of § 784.7 exposed Petitioner to a sentence of 15 years-to-life for his Ventura offense against victim Dianne under the "multiple victims" provision of § 667.61(b)(c)(e), but only if he was convicted of the offenses against both victims at the same trial.
Petitioner's Ventura County offense against victim Dianne was in fact joined with his San Diego County offenses against victims Hitomi and Audrey pursuant to § 784.7, and Petitioner was charged by Information filed in the San Diego County Superior Court (Case No. SCD184449) on October 8, 2004, on seven separate counts against the three victims. (Lodgment No. 1 Clerk's Tr. ["CT"] at 1-5.) Although no § 954 hearing was held, the state appellate court found that a challenge to venue had been waived by defense counsel's failure to bring a § 954 motion. (Lodgment No. 8, People v. Loi, No. D047552, slip op. at 9-10). Trial commenced on April 6, 2005, and Petitioner was convicted on all seven counts:
Count 1: sexual battery by restraint (victim Hitomi)
Count 2: attempted forcible oral copulation (victim Audrey)
Count 3: forcible oral copulation (victim Dianne)
Count 4: forcible oral copulation (victim Hitomi)
Count 5: kidnapping for oral copulation (victim Hitomi)
Count 6: robbery (victim Hitomi)
Count 7: making a criminal threat (victim Hitomi) (CT 163-71.)
The jury returned true findings that Petitioner used a knife during every crime except counts two and three, where it was not alleged. (CT 163-71.) With respect to count three, the jury returned a true finding that Petitioner committed an offense against more than one victim within the meaning of § 667.61(b)(c)(e). (CT 165-66.) The jury returned additional true findings with respect to count four of: (1) kidnapping within the meaning of § 667.61(b)(c)(e) which involved movement of the victim which substantially increased the risk of harm within the meaning of § 667.61(a)(c)(d); and (2) an offense against more than one victim within the meaning of § 667.61(b)(c)(e). (CT 167-68.)
Petitioner was sentenced to 40 years-to-life in state prison as follows:
Count 1: 3 years (middle term) one-year weapon enhancement (stayed)
Count 2: 1 year (one-third of middle term), consecutive (stayed)
Count 3: 15 years-to-life based on the jury's § ...