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Terry v. Warden of Folsom State Prison

September 13, 2010



Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 2001 in two separate criminal cases of stalking in violation of a temporary restraining order and threatening to commit a crime resulting in death or great bodily injury, and kidnapping and corporal injury to a cohabitant. He seeks relief on the grounds that his combined sentence in both cases constitutes cruel and unusual punishment. 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In its unpublished opinion affirming petitioner's two judgments of conviction and his sentence on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following summary:

This appeal involves two separate incidents. In the first, Placer County case No. 62-15746, defendant entered pleas of no contest to one felony count of stalking in violation of a restraining order (Pen.Code, § 646.9, subd. (b); unspecified statutory references that follow are to the Penal Code) and to an unrelated misdemeanor count of making criminal threats (§ 422). He also entered a Harvey waiver to a misdemeanor count of vandalism (§ 594), and admitted a prior conviction for robbery.

On June 8, 2001, shortly before he was to be sentenced in that case, defendant attacked his girlfriend, and charges were filed in a second case, Placer County case No. 62-21948. A jury convicted defendant of kidnapping (§ 207, subd. (a)) and inflicting corporal injury on a cohabitant (§ 273.5), but acquitted defendant of a third count of making criminal threats (§ 422).

The trial court sentenced defendant to an aggregate prison term of 28 years for both cases.

On appeal, defendant contends that the court erred in refusing to permit him to withdraw his plea of no contest in the first case and in admitting certain evidence at trial in the second. He asserts that references to the prosecutor as "the People" violated his constitutional rights. Finally, he challenges the sentence imposed, contending that the court should have granted his motion to strike his prior conviction (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and that a sentence of 28 years constitutes cruel and unusual punishment. None of these claims has merit, and we therefore affirm the judgment.

Facts and Proceedings

According to the factual basis for defendant's plea in case No. 62-015746, defendant was "not particularly pleased" with custody orders in his pending dissolution case. He telephoned his ex-wife, Wendy, at her job and "made some derogatory and threatening statements . . . ." He then went to where Wendy worked, yelled at her, and broke some items. In an unrelated matter, defendant made threatening comments to a baby sitter. The first amended information charged defendant with two felony counts of making criminal threats (with count one relating to Wendy and count two relating to the baby sitter), and one misdemeanor count of vandalism (count three). The information also alleged that defendant had a prior felony conviction for robbery.

Pursuant to a plea agreement, count one was amended to charge stalking in violation of a restraining order and count two was reduced to a misdemeanor. Under this agreement, defendant faced a total maximum sentence of nine years.

Judge Roeder noted that defendant "would be making a motion under . . . Romero requesting the Court dismiss the prior strike." The court advised that if it struck the conviction, it "would nevertheless impose the maximum term of five years in state prison allowed by law." The court outlined possible probation conditions, and noted that any grant of probation would include a requirement that defendant participate in counseling, including "a 52-week batterer's program and also some pretty heavy anger control counseling."

After being appropriately advised, defendant entered pleas of no contest to both charges, entered a Harvey waiver on count three, and admitted the prior robbery conviction.

The court scheduled sentencing for June 22, 2001, and cautioned defendant to keep his interview with the probation department and to appear for sentencing. The court also ordered that defendant have no contact with the victim in count two or the witness to the incident with Wendy, and that defendant stay away from Wendy's workplace. The court stated: "And as it relates to Wendy Terry, you shall have only contact peaceably under the terms of the family law court orders. It should be of no surprise to you and I'm sure [your attorney] has suggested to you that you don't need to screw up because you're going to be -- you're presently the subject of the strike. If you screw up between now and sentencing, that's going to be pretty heavy. So don't screw up between now and sentencing."

The prosecutor asked, "[I]f he violates these orders that you put in place, that wouldn't be grounds for withdrawing his plea at sentencing; is that correct?" The court agreed, noting "[defendant] understands the rules. His plea is for nine years and see what happens between now and sentencing."

Apparently undeterred by his upcoming sentencing hearing, defendant attacked his pregnant girlfriend, Tracy, giving rise to charges in case No. 62-21948 of kidnapping, inflicting corporal injury on a cohabitant, and making criminal threats.

Judge Couzens presided over the trial in that case. The evidence established that defendant became very angry with his girlfriend while they were driving in a car and, at one point, tried to push her out of the moving vehicle. When the car stopped, Tracy ran out of the car and into a gas station. She was crying and frightened, and asked the manager if she could go into the office because her boyfriend had been hitting her. She ran into the office, where another employee was working. They closed the door, but defendant, who was chasing Tracy, hit and kicked the door to try to open it. He was screaming, "Give me my shit back." Defendant went out of the store briefly, but returned, manipulated the office door with an implement, and opened the door. He grabbed Tracy and dragged her through the store while Tracy screamed for help. At one point, Tracy was on the floor of the store yelling that she did not want to go, while ...

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