FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2004 judgment of conviction entered against him in Solano County Superior Court on a charge of voluntary manslaughter. He seeks relief on the grounds that: (1) the trial court violated his right to due process when it failed to instruct the jury that evidence of a defendant's admissions should be viewed with caution; and (2) his upper term sentence was imposed in violation of his rights pursuant to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn1
The killing occurred in the apartment of the victim, Mark Hudson. About six weeks before the killing, Mark*fn2 had allowed his homeless estranged wife, Evelyn Hudson, to stay in his apartment. Defendant, who was Evelyn's boyfriend, and Sharon Burrows, who is Evelyn's daughter, also moved in.
Late in the evening on May 12, 2003, Mark went to the back bedroom to ask for grocery money. Defendant, Evelyn and Sharon were in the bedroom. The conversation was tense.
Sharon testified that after Mark walked out of the room, defendant said to Evelyn, "'Do you want me to kill him? I'll kill him.' But he wasn't serious. He didn't look serious . . . . [M]y mother said, 'Don't be stupid. Don't say stupid stuff like that.'" When he made the statement, defendant was standing and holding an open pocket knife, which he was using to clean his nails. Sharon told police shortly after the killing that defendant told Evelyn, "You're screaming. Do you want me to kill him? I will kill him," and that he then jumped up and grabbed his knife, which was open. Evelyn told Sharon she should not have told police about defendant's statement in the bedroom. At trial, Evelyn testified that defendant did not say anything like, "Do you want me to kill him?"
Around midnight, Mary Burrows, Evelyn's other daughter, knocked on the door. When Mark opened the door and saw Mary, his whole demeanor changed. He slammed the door and locked it, shouting, "I don't want that bitch in my house. Get that cunt out of here." Evelyn went outside to talk to Mary and then told her to wait in defendant's car.
Mary testified that Mark was angry with her because when she was 12 years old she reported Mark to the police for sexually assaulting her. Mark was arrested and Mary testified against him in court. When Evelyn came back into the apartment, Mark screamed that Mary was not supposed to come to his apartment and he and Evelyn started arguing. Mark stepped in Evelyn's way; he was "right in [her] face" and looked like he was about to hit her. Bains, a friend of Sharon and Mark who had come by the apartment, stepped between Mark and Evelyn and tried to calm Mark down, but was ineffective.
Mark ordered Evelyn to pack up and leave. According to both Sharon and Bains, defendant told Mark that Evelyn was right, she did not have to leave because she was Mark's wife. Defendant challenged Mark to call the police and see what they had to say. Mark turned toward defendant and said, "What are you going to do about it?" Sharon and Bains testified variously that defendant either put his head down and said nothing, or he calmly said, "I don't want to start nothing with nobody." Sharon and Bains then left the apartment.
Evelyn told Mark she would get out and she went to her room where defendant helped her pack. As they were getting ready to leave, Evelyn saw defendant's closed pocket knife on the hope chest at the end of the bed and she handed it to him.
Evelyn went to the front door and put her things down so she could open the door. As she was trying to unlock the door, Evelyn saw Mark coming at her from about ten feet away. She thought he was going to hit her. Defendant said, "You're not going to touch her . . . You're not going to hurt her again . . . Just leave us alone and let us go." Mark said, "What, you want a piece of me?" Evelyn looked over toward Mark and saw him hit defendant on the head. Evelyn initially testified that Mark hit defendant on the head with a butane tank, but then recanted and testified that she was not sure he had a tank in his hand. In her statement to the police, she said as far as she could see Mark had nothing in his hands when he hit defendant, but she was nearsighted. After Mark hit defendant, Evelyn saw defendant jump up and punch Mark in the chest with his fist. Mark stood back, said, "You got me, I'm dead," and then went down on his knees.
Evelyn put her things outside the door and when she came back into the apartment, Mark was lying on the floor. At trial Evelyn testified that she asked defendant, "What did you do? You just punched him, didn't you?" He said, "No, I stabbed him." In her interview with the police, Evelyn said she told defendant, "Why did you do that? . . . Why did you think you had to do that? I mean, I know you're littler than him and all that." She said that defendant answered, "Well I had it in my hand. I didn't even realize the blade was open."
Evelyn testified that defendant looked very afraid during the altercation. Mark was much larger than defendant, six feet tall and about 220 pounds to defendant's five feet three inches and 123 pounds. Evelyn had told defendant about Mark's history of violently assaulting her and her daughter, and a few days before the killing Evelyn and defendant had heard Mark breaking mirrors in his bedroom because he was upset that his girlfriend had left him.
Defendant told Evelyn to dial 911 and call an ambulance. He said, "You don't know me" and ran out of the apartment. Evelyn did not check on Mark's condition and she did not call 911. She made two more trips to the back bedroom to gather her belongings and then left the apartment. She brought her things to defendant's car, where Mary was waiting. Mary relayed the message that defendant said she should meet him by the waterfront, and they drove there. Defendant showed up at daybreak, and he and Evelyn drove to Sacramento. They were arrested the following morning.
Mark was found lying on the living room floor near the couch at about 8:00 a.m. on May 13, 2003. The autopsy revealed that he died of a stab wound to the chest. The fatal stab wound was three inches deep on the right side of his chest and it cut through the aorta. There was a second, nonfatal stab wound on the left side of his chest under the armpit, which superficially cut the skin. Mark also had a laceration on the right side of his forehead and several small scrapes and bruises, mostly on his extremities. A forensic pathologist opined that these injuries could have been caused either by a blow or a fall. A large amount of methamphetamine was found in Mark's blood (0.54 mg where the analyzing laboratory indicated 0.60 mg was a potentially toxic dose), but it did not contribute to his death. A police officer who interviewed defendant two days after the killing visually examined defendant and did not observe any injuries on his face or head.
Defendant was charged by information with murder (Pen.Code, § 187, subd. (a)), and it was alleged that he used a knife during the commission of the offense (Pen.Code, § 12022, subd. (b)). The jury was instructed on first and second degree murder, voluntary manslaughter on the theories of provocation and imperfect self-defense, involuntary manslaughter, and justifiable homicide in self defense and defense of others. During deliberations, the jury asked for a readback of Sharon's testimony "about what James Walker said about killing Mark Hudson."
The jury found defendant guilty of voluntary manslaughter (§ 192, subd. (a)) and found the enhancement to be true. The court sentenced defendant to the upper term of 11 years with an additional year for the weapon enhancement.
Petitioner filed a timely appeal of his conviction in the California Court of Appeal for the First Appellate District, in which he raised the same two claims contained in the instant petition. Answer, Ex. 3. Petitioner's conviction and sentence were upheld in a reasoned decision dated April 28, 2005. Answer, Ex. 5. Petitioner subsequently filed a Petition for Review in the California Supreme Court, raising the same claims. Answer, Ex. 6. That petition was denied with the following reasoning:
Petition for review denied without prejudice to any relief to which defendant might be entitled upon finality of People v. Black (2005) 35 Cal.4th 1238 regarding the effect of Blakely v. Washington (2004) 542 U.S. ___, 124 S.Ct. 2531, and United States ...