FINDINGS AND 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 Sacramento County Superior Court on a charge of residential burglary. He alleges that: (1) the trial court violated his right to due process when it failed to give a jury instruction on a lesser related offense; and (2) the trial court violated his right to due process when it failed to strike one or more of his prior convictions at the sentencing proceedings. 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
In its unpublished memorandum opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant William Paul Klovach was convicted after a jury trial of residential burglary. (Pen.Code, § 459.)*fn2 The trial court found true one prior serious felony conviction for purposes of enhancement (§ 667, subd. (a)) and two prior serious felony convictions under the "three strikes" law (§§ 667, subd. (b)-(I), 1170.12). Defendant asked the trial court to dismiss his strikes to avoid an unjust sentence. The court denied the request and sentenced defendant to an aggregate term of 30 years to life. On appeal, defendant claims: (1) the trial court erred in denying his request for a jury instruction on the lesser related offense of trespass, (2) the trial court abused its discretion in declining to dismiss his prior strikes, and (3) the trial court erred in limiting his presentence credits to 20 percent. We agree with only the last contention and modify the judgment accordingly. BACKGROUND On October 25, 2001, defendant asked a neighbor, Sean Tipple, for a ride to a pawnshop. Tipple, who was with his girlfriend, Tanya Fanton, agreed to give defendant a ride. Originally, defendant had nothing in his possession, but after Tipple agreed to take him, defendant went into his residence, got a dark-colored duffel bag, and put it in the trunk of Tipple's car.*fn3 Once inside Tipple's car, defendant directed Tipple to a nearby house on Conklin Court. Tipple parked in front of the house. Defendant said he needed to speak with a friend there and walked up to the house while Tipple and Fanton waited in the car.
About one minute later, Marlon Walker arrived home to find Tipple's car parked in front of his house. When Walker asked Tipple if he needed any help, Tipple told Walker that "Willie" was at his door waiting to talk to him. Walker asked, "Willie who[?]" and Tipple replied, "Willie from the next court over."
Walker went to his front door, looked through the window, and saw defendant inside. Defendant was using a rag to wipe down the threshold and doorknob of the back door. Walker confronted defendant, whom he had never seen before, and asked what he was doing in his home. Defendant responded by running and jumping over the fence.
After defendant fled, Walker looked around his house and found the place had been "trashed." A window in the dining area of the house had been broken and he was missing several items, including a satellite receiver and satellite "smart" card, his compact disk collection consisting of 111 disks, a radio, and a sword he received from the military upon retirement. Walker immediately called the police.
Tipple saw the confrontation between Walker and defendant, so he went home and told his father what had happened. Shortly after Tipple arrived home, defendant reappeared. Defendant seemed normal, as if nothing had happened. Defendant still wanted to go to the pawnshop, and although Tipple was suspicious of him, he drove defendant there anyway.
On the way to the pawnshop, defendant was "really hyper," "jittery," and "constantly wiping his nose," which was "running a lot." Defendant might have been under the influence of drugs although he was able to walk and carry on conversation normally. Once at the pawnshop, defendant retrieved his bag from Tipple's trunk and went inside. Tipple did not see what was in the bag and did not go into the pawnshop with defendant.
Defendant came into the shop with a black duffle bag full of compact disks. The pawnshop employee recognized defendant from previous transactions. Defendant told the pawnshop employee that he needed to sell the disks, and the clerk paid him $80 for approximately 100 disks.
When defendant left the pawnshop, he paid Tipple $15 for gasoline and asked Tipple to drop him off across the street at Carrow's Restaurant. Tipple did so and then drove back to Walker's house to find out what had happened earlier. When he found out, he spoke with police and told them where defendant lived.
On that same day, defendant's mother had seen defendant with a black bag, compact disks, a green bag with a karaoke machine, a box-shaped object that appeared to be electronic equipment, and a sword. Defendant put some of the objects in the garage but placed the sword under his bed. He had also asked his mother to call a pawnshop to determine how much money he could get for the compact disks.
Also on October 25, 2001, defendant had gone to a clinic to obtain medication called Fiorinal. He took Fiorinal on a daily basis to relieve headaches he suffered as a result of a bicycle accident in December 2000. Defendant also heard voices. After getting the medication, he went home and took a nap. He acted normal during most of the day and was able to carry on a conversation. However, when defendant found out the police were on their way, he began acting abnormally and hid some of the property near a shed in a field. It was also at this point that his mother noticed pills from defendant's medicine bottle were missing. She believed he had taken 30 to 34 Fiorinal pills.
When the police arrived at defendant's residence, defendant's mother told them the sword was under defendant's bed. The officers also recovered several other items taken from Walker's home, including a compact disk player, a karaoke machine, workout gloves, remote controls, headphones, and a satellite card. Although Sheriff's Deputy John Foster did not believe defendant had overdosed on medication, he took defendant to the hospital as a precautionary measure. Defendant was calm and cooperative, had no trouble walking or talking, and did not appear to be under the influence of any narcotic.
Defendant's grandmother testified that on October 24, 2001, defendant obtained three containers of prescription medication. Defendant had been hit by a car while riding his bicycle on December 19, 2000. He had brain surgery as a result of the accident and "was never the same." He even got lost on several occasions after the operation although he was born and raised in Sacramento.
On the morning of October 25, 2001, defendant's grandmother noticed that about 10 pills were missing, and she told defendant not to take any more medication. That evening, she noticed more pills missing from one of the containers. Shortly thereafter, the Tipples came over and told her defendant had "done a robbery." When defendant came home, she told him he had "done something bad." He looked "mummified," said he did not do anything, got into bed, and covered himself with a blanket. She told him the police were coming but he "just laid there."
Defendant told his mother that on the day of the burglary, he had been having blackouts. Defendant was adjudged incompetent to stand trial and committed to Atascadero State Hospital on July 9, 2002. He was certified competent on October 18, 2002, and found competent by the court on February 18, 2003.
Petitioner filed a timely appeal of his conviction in the California Court of Appeal for the Third Appellate District. On July 22, 2004, the appellate court modified the judgment to award petitioner additional presentence custody credits, and otherwise affirmed petitioner's judgment of conviction. Lodg. Doc. No. 2.
On August 2, 2004, petitioner filed a petition for review in the California Supreme Court. Lodg. Doc. No. 3. That petition was summarily denied by order ...