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Ford v. Kane

July 20, 2010

CHARLES B. FORD, PETITIONER,
v.
A. P. KANE, WARDEN, RESPONDENT.



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. He challenges a 2003 judgment of conviction entered against him in the Solano County Superior Court for inflicting corporal injury on the mother of his minor child.*fn1 He claims that the trial court violated his Sixth Amendment right to confront the witnesses against him and his Fourteenth Amendment right to due process when it admitted into evidence hearsay statements made by the victim. 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*fn2

Charles Benjamin Ford (Ford) appeals from a judgment of conviction and sentence after he was found guilty of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and corporal injury to his child's parent (Pen.Code, § 273.5, subd. (a)). He contends the victim's hearsay remarks to a police officer were erroneously admitted under Evidence Code section 1370, claiming (1) the People failed to establish the victim was unavailable as a witness, and (2) admission of the evidence violated his Sixth Amendment right to confront and cross-examine adverse witnesses. In addition, Ford contends, his attorney rendered ineffective assistance if he waived his objection to the victim's statement on constitutional grounds.

We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

Ford's sentence was imposed after he was found guilty in two separate criminal proceedings.

A. Case No. 160027 (Possession of Methamphetamine)

An information filed on June 28, 2002, in case No. 160027 charged Ford with possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The information further alleged that Ford was on bail at the time of the offense (Pen.Code, § 12022.1) and had two prior prison terms (Pen.Code, § 667.5, subd. (b)). An amended information added a prior strike conviction allegation (Pen.Code, §§ 667, subds.(b)-(I) & 1170.12, subds. (a)-(e)).

Ford waived his right to a jury trial. The court found him guilty of possession of methamphetamine and found the enhancement and strike allegations to be true. Ford does not assert error with respect to his conviction in case No. 160027.

B. Case No. 160374 (Corporal Injury on Mother of His Child)

By information filed on June 26, 2002, Ford was charged with burglary (Pen.Code, § 459) and corporal injury on the mother of his minor child (Pen.Code, § 273.5, subd. (a)).*fn3 The information further alleged, as to both counts, that Ford had a prior strike conviction, a prior serious felony conviction ( § 667, subd. (a)(1)) and a prior prison term, and, as to count two, a prior conviction for violation of section 273.5 (see § 273.5, subd. (e)). An amended information added two on-bail enhancement allegations. Ford was tried before a jury.

At trial, Vallejo Police Officer Les Bottomley testified that he was dispatched to Shirley Rippee's house about 11:00 a.m. on April 5, 2002. There he contacted Rippee and her granddaughter, victim Sunshine Easter, who was upset, had been crying, and had numerous welts on her arms. When the officer asked why the police had been called, Easter responded that she had been assaulted by Ford, her former boyfriend and father of her daughter.

According to Officer Bottomley's testimony, Easter explained that she had been out all night and arrived home around 9:00 a.m. Ford was waiting for her just inside the door. When she tried to leave, Ford grabbed her hair and dragged her back into her residence. Then he whipped her with an electrical cord numerous times on the arms, legs, and other parts of her body. He also called her names and swore at her. Ford remained at her residence for about one and one-half hours more, continuing to belittle her and call her names.

Officer Bottomley noticed that Easter was distraught as she recounted these events. He did not recover the electrical cord or inspect Easter's residence, but noted that her injuries were consistent with a doubled-up cord. At the scene he observed and photographed the welts on her arms and legs, and the photographs were introduced into evidence at trial.

Rippee testified that Easter had returned home from a date about 9:00 a.m. As Easter passed through Rippee's house to get to her own residence, Easter appeared to be in a "really good mood" and was "jolly" and "laughing." Later that morning, while Rippee was in the laundry room, Rippee heard Ford's and Easter's voices outside. Ford sounded angry, and Easter sounded upset. When Easter entered Rippee's home, Rippee noticed that her face was red, she was crying, and she had bloody bruises on her arms and legs that she did not have earlier that morning. Easter left the house and gave Ford a sports bag, and Ford drove away. Rippee then called the police.

Rippee also confirmed that Ford was the father of Easter's daughter, who was two and a half years old at the time.

Among the other trial witnesses, Vallejo Police Detective David McGraw testified that he spoke to Easter about the April 5, 2002, incident, and opined that the injuries she showed him were consistent with being struck with an electrical cord. Robert Oettinger, a Benicia police officer, testified that Easter had told him of an earlier incident in which Ford threw a speaker magnet at a car Easter was in, breaking the window and injuring her face.

The jury found Ford not guilty of burglary, but guilty of corporal injury on the mother of his child. Ford waived jury trial on the prior conviction and on-bail allegations. Except for one on-bail enhancement, the court found the enhancement allegations true.

C. Sentencing

The court sentenced Ford in case No. 160374 to the four-year middle term for corporal injury on the mother of his child, doubled to eight years pursuant to the three strikes law. In case No. 160027, Ford was sentenced to one-third of the middle term, doubled to 16 months, for methamphetamine possession, and two additional years for the two prior prison term enhancements, imposed consecutively. The court ordered the sentences in the two cases to run consecutively, resulting in an aggregate sentence of 11 years 4 months.

Petitioner's judgment of conviction was affirmed on appeal by the California Court of Appeal for the First Appellate District. Answer, Ex. J. The California Supreme Court subsequently denied review. Answer, Ex. K.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus ...


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