The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Superior Court of the State of California, County of Stanislaus, Petitioner was convicted of first degree burglary (Cal. Pen. Code § 459)*fn1, attempted burglary (§§ 664/459), burglary (§ 459), passing an altered or forged check (§ 470(d)), and misdemeanor resisting arrest (§ 148). The trial court found true that Petitioner suffered three prior 1994 burglary convictions (§§ 1192(c), 667(d)), and the following 1983 prior felonies pursuant to sections 667(d) and 1192.7(c): rape (§ 261(a)(2)); sodomy with a person under 14 years of age and more than 10 years younger (§ 286(c)); sodomy in concert (§ 286(d)); oral copulation with a person under 14 years of age and more than 10 years younger (§ 288a(c)(1)); and oral copulation in concert (§ 288a(d)).
On appeal, the California Court of Appeal, Fifth Appellate District reversed and remanded the matter to the trial court for a post-conviction Marsden hearing. (Lodged Doc. No. 1, at 60.) The appellate court also directed the trial court to dismiss one of the section 667(a) enhancements and resentence Petitioner to a total term of 85 years to life. (Id.) The trial court denied Petitioner's Marsden motion and motion for new trial. (Lodged Doc. No. 2.) Petitioner was also resentenced to a total term of 85 years to life. (Id.) Petitioner filed a timely appeal to the California Court of Appeal, Fifth Appellate District. On October 24, 2008, the Court modified the amount of presentence credits, but otherwise affirmed the judgment.
On January 16, 2007, Petitioner filed a petition for review in the California Supreme Court. (Lodged Doc. No. 6.) The petition was denied on February 21, 2007. (Lodged Doc. No. 7.) Petitioner filed the instant federal petition for writ of habeas corpus on December 7, 2007. (Court Doc. 1.) On July 14, 2009, the Court determined that the petition contained an unexhausted claim, and granted Petitioner the opportunity to withdraw the claim. Upon Petitioner's request, the Court granted the request to withdraw the unexhausted claim from the petition. (Court Docs. 20-22.)
Respondent filed an answer to the petition on November 6, 2009. (Court Doc. 26.)
Petitioner did not file a traverse.
Appellant was charged and convicted of multiple felonies based on the following incidents.
Diane Castillo lived next to Robert and Anna Williams, on East Fairmont in Modesto. Around 9:00 a.m. on Saturday, July 10, 2004, Ms. Castillo was taking things from her car into her house, when she saw a man walk out of the Williams' backyard. The man walked out of the Williams' side gate, turned around, looked at Ms. Castillo, and then went back through the gate and returned to the Williams' backyard. He was carrying a partially-filled black garbage bag. Castillo decided to call the police because she knew Mr. and Mrs. Williams were out of town and she did not recognize the man.
Modesto Police Officer Curtis Musto responded and spoke to Ms. Castillo, who stated she was about 80 feet away from the suspect and described him as a Hispanic in his 20's, about five foot seven inches tall, 190 pounds, and wearing baggie jeans, a Pendleton shirt, and a baseball cap. Officer Musto went to the Williams' house. No one was there, but the gate was ajar and the back door was kicked in. The door led to the garage, and the garage was attached to the house. Officer Musto walked through the house and determined it had not been ransacked and nothing appeared to be disturbed.
Sometime between 1:00 p.m. and 2:00 p.m. that day, appellant walked into the Money Mart check-cashing office in Modesto. Appellant presented the clerk, Mri Carmen Hernandez, with check No.2056 from the account of "Robert S. Williams" and "Anna V. Williams." The check was written out to appellant, and signed by Mr. Williams. Appellant also presented a valid California photographic identification (ID).*fn2
Ms. Hernandez testified appellant presented the check to her. It was already filled out and he did not write anything on the check in her presence. She did not know if he had signed the back of it. Ms. Hernandez asked appellant what the check was for. Appellant said he had done "a side job for the maker, like you work for, like, somebody on the job, under the table," and that he did it for the people named on the check. He did not specifically say the names of the people he worked for.
Ms. Hernandez determined appellant had probably cashed checks there before because his name was in Money Mart's computer system. Ms. Hernandez testified she did not have any formal handwriting expertise, she did not have any training in handwriting analysis as part of her job, and she was not familiar with appellant's handwriting. Nevertheless, Ms. Hernandez testified the check did not look right to her, because the handwriting on the check seemed similar to appellant's signature on the photo ID. She thought the words "side job" were written in the check's memo line, which she also thought was unusual.
Ms. Hernandez made a copy of the check and appellant's photo ID, and then followed the company's policy and called the telephone number on the check to confirm the maker had written the check to the named party. Ms. Hernandez reached a telephone answering machine, and left a message that she was trying to confirm the check. She then returned to the counter and advised appellant that she could not cash the check because she could not confirm the check with the maker. Appellant became very angry and yelled at Ms. Hernandez, and asked why they did not cash the check because he had his ID. He took the check and his identification and "stormed" out.
A few minutes later, appellant returned to the Money Mart and again asked to cash the check. Ms. Hernandez again called the telephone number on the check, reached a telephone answering machine, left a message, and advised appellant that she could not cash the check because she could not confirm it with the maker. Appellant again became angry, grabbed the check and his identification, and left.
On Sunday, July 11, 2004, Anna Williams and her children returned to their house and they were immediately intercepted by Ms. Castillo, who told them that someone broke into the house. Mrs. Williams and another neighbor walked through the house. Mrs. Williams discovered the toilet was running, the shower curtain had been moved, and a package of her husband's socks had been moved from a drawer onto their bed; nothing else was disturbed. Mr. Williams arrived home later and called the police. The police again walked through the house with Mr. and Mrs. Williams, and they thought that nothing had been taken or damaged, aside from the backdoor.
After the police left, Mr. Williams played the messages on their telephone answering machine, and heard the message from the Money Mart to verify a check written to "Steven Richards." Mr. and Mrs. Williams went through their house again and discovered their checkbook was missing. They also discovered the jewelry had been removed from Mrs. Williams' jewelry box, and a new package of men's T-shirts had been taken from the bedroom.
On Monday, July 12, 2004, Mr. and Mrs. Williams went to the bank and closed their account. Next, they went to the Money Mart, and received a copy of the check and photographic ID which appellant presented. Mr. Williams examined the copy of the check, and testified that he did not write or sign the check. Mrs. Williams thought the writer had misspelled "Williams." Mr. and Mrs. Williams did not know appellant and had not hired him to work for them.
Mrs. Williams believed she showed Ms. Castillo the copy of the check and photo ID which they obtained from Money Mart, but could not remember exactly when that conversation occurred. Mr. Williams testified that after they returned from Money Mart, he spoke with Ms. Castillo and showed her the copy of the check and the photo ID. Mr. Williams testified that Ms. Castillo looked at the photo ID "and said that that was definitely him."
Mr. and Mrs. Williams gave the photocopy of the check and appellant's photo ID to the police. The police department issued an "information and belief" warrant for appellant, that he was wanted for burglary and forgery. Mrs. Williams's jewelry was not recovered.
At trial, Ms. Castillo identified appellant as the person who walked out of the Williams' backyard with the plastic bag. Ms. Castillo testified she was about 25 to 30 feet away from appellant, she made eye-contact with him, she had a clear view of him, and she got a good look at him. Ms. Castillo testified that about a week after the incident, an officer showed her a photographic lineup and she identified appellant.
Ms. Castillo testified that Mr. and Mrs. Williams showed her the copy of the check and photo ID they obtained from the Money Mart, but she could not remember if that occurred before or after she looked at the officer's photographic lineup.
"Q: Do you remember if you saw that check and identification before you pointed to the photographs [in the lineup]?
"A: I really honestly can't remember, but I do remember when I saw this, it didn't look anything like the picture I had picked out in that here, he didn't-he doesn't look like the same person, to me, it looks darker and is just different."
Ms. Williams recalled that she saw the copy of the forged check and photo ID, which were on one piece of paper.
"Q: So when you saw the check, you were able to see the identification at the same time, right?
"A: It's not something that I concentrated on. I didn't really concentrate on it, to be quite honest with you."
Ms. Castillo testified her trial identification of appellant was based on her observations of him when he walked out of the Williams' backyard, and not because she saw the copy of his photo ID. "It's because I saw him. It's not the ID. I have not paid any attention to that at all."
Based on this incident, appellant was charged and convicted with count I, first degree burglary of the Williams' residence, count III, second degree burglary, based on appellant's entry of the Money Mart store to cash a forged check, and count IV, passing an altered or forged check.
Around 11:00 p.m. on July 22, 2004, Mr. and Mrs. Clarendon Hetrick were in bed at their home in Modesto when they heard someone knock at their front door, open the unlocked screen door, and try to open the front door latch. Mrs. Hetrick did not open the door but looked through a window. There were no lights on inside the house, but the area outside the front door was well-illuminated. Mrs. Hetrick saw a man walk away from the door, pushing a bicycle toward her neighbor's house. Mrs. Hetrick believed the man left, so she went back to bed.
About four or five minutes later, Mrs. Hetrick again heard someone try to open the front door handle. Mr. Hetrick then thought he heard someone in the backyard. Shortly afterwards, they heard someone try to open the backdoor handle, followed by a squeaking sound as if someone was trying to open a screen. They next heard someone repeatedly bang on their metal back door, as if trying to kick it down.
Mrs. Hetrick immediately called the police. The loud banging continued as she was on the telephone with the emergency operator, who commented that she could also hear the loud banging. Mr. Hetrick grabbed his revolver, cocked the trigger, and waited next to the backdoor as the loud banging continued. The backyard was highly illuminated but Mr. Hetrick could not see who was standing at the door.
Officers Rigo Dealba and Matthew Spurlock arrived at the Hetricks' house within minutes of Mrs. Hetrick's telephone call. The officers were in uniform. As they approached the residence, they could hear loud banging coming from the backyard.
The officers cleared the front yard of any suspects, looked over the fence, and saw appellant standing by the back door. Officer Dealba pulled his service revolver, opened the fence gate, identified himself, and ordered appellant to get on the ground. Appellant replied that he did not do anything. Officer Dealba realized appellant was holding a rock in his right hand, and appellant "cocked the rock back as if he was gonna throw it." Officer Spurlock also drew his gun and testified appellant spun and raised the rock as if he was going to throw it. Officer Dealba repeatedly ordered appellant to drop the rock and get on the ground. Appellant lowered his arm but held onto the rock. Officer Dealba told him to drop the rock several more times, and appellant finally dropped the rock.
Both officers repeatedly ordered appellant to the ground. Officer Dealba returned his weapon to his holster but Officer Spurlock continued to hold his weapon on appellant. Appellant ignored their commands to get on the ground, and instead raised up his clenched fists in a fighting stance, and started to walk toward the officers. Spurlock thought appellant was going to come at him.
Officer Dealba approached appellant and tried to take him into custody. Officer Spurlock testified appellant "started to tussel" and his arms were "going in a punching manner, just resisting altogether." Officer Dealba punched appellant in the face, and Officer Spurlock used his baton and hit appellant's lower leg twice. The officers used their body weights to bring down appellant, and handcuffed his arms behind his back.
Appellant had identification in his possession, which stated that he was 38 years old. Appellant was about five foot six inches tall and 200 pounds. Appellant had a backpack which contained food, clothes, and three watches.*fn3 The officers found a bicycle by the house.
The police asked Mr. and Mrs. Hetrick to look at appellant, and Mrs. Hetrick recognized him as the man who was at the front door. Mrs. Hetrick testified appellant was yelling, " 'I didn't do anything.' " The Hetricks did not know appellant. There were large scratches on the backdoor. The Hetricks determined appellant had used a large grinding stone from their backyard rock collection to pound on the backdoor.
The officers took appellant into custody and placed him in the patrol car. Officer Spurlock noticed a man on a bicycle, riding across the street from the Hetricks' house. The man rode up to another patrol car and looked inside. Spurlock asked what he wanted. The man, later identified as either Robert or Michael Wren, said he saw the police cars and just wanted to check it out. The man had on bulky clothes and acted weird. Spurlock asked if he could conduct a pat-down search for weapons, and the man agreed. Spurlock found a revolver in the man's pocket. The officers did not discover any information to connect appellant and Wren.
The officers took appellant to the hospital for medical clearance because of their use of force. Officer Dealba testified appellant made some statements without being questioned. Appellant said "that we had nothing on him because-or the only thing we had on him was trespassing because there wasn't any damage to the door and that he was just looking for a place to pee."
"Q: Did he also mention something about trying to get away from a guy named Mike who had a gun?
"Q: Do you remember him saying anything about ...