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. Petitioner challenges his 2006 conviction on charges of attempted murder, in violation of Cal. Penal Code § 664/187(a)*fn2 , with an allegation of personal use of a firearm, in violation of § 12022.5(a), and the determinate sentence of nineteen years in prison imposed thereon on August 22, 2006. Petitioner raises one claim in his petition, filed September 29, 2008, that his prison sentence violates the Constitution.
As [petitioner] entered a no contest plea, the facts underlying the offenses are taken primarily from the probation report.
On June 27, 2005, officers responded to a report of shots fired and robbery in progress.
Officers found a car high-centered on a berm. The windshield and rear windows of the car had been broken and glass was scattered throughout the car's interior. The stereo had been torn from its mountings. The driver, John Masters, had a head injury and was bleeding from his left arm.
Masters told officers he had been driving his car when he saw [petitioner], who was driving [petitioner's] sister's car, make a U-turn and start following him. Masters made numerous unsuccessful attempts to lose [petitioner]. [Petitioner] managed to pull up next to Masters's car and attempted to collide with him. Masters swerved to avoid the collision, skidded, and high-centered his car on the berm. He told his two minor passengers to get out and run.
[Petitioner] and three other individuals approached Masters. [Petitioner] struck Masters several times on the head, back and side with a club, and stabbed Masters in the arm with a knife or screwdriver. During the assault, one of [petitioner's] companions stole the stereo from Masters's car.
Some bystanders yelled at [petitioner] and his companions. One of the companions broke Masters's wind-shield with a rock and [petitioner] broke another window. They then got in [petitioner's] car and fled. Masters told officers [petitioner] claimed membership in the Norteño criminal street gang. Although Masters's two passengers had called 911 and said they heard gunshots, officers found no evidence of gunshots. Witnesses saw [petitioner] strike Masters and his car with a pipe.
[Petitioner] claimed he followed Masters's car after Masters made him angry by throwing hand signals and flipping him off. [Petitioner] provided conflicting stories about what happened after Masters's car got stuck on the berm. He said he left at that point. On the other hand, he also said he got out, confronted Masters, and Masters pulled a knife on him. [Petitioner] denied striking Masters with a pipe or pulling out a knife. Later, he said he grabbed a "tool" from the car when he got out to confront Masters and swung it at Masters to protect himself. He also said he did not realize his companion had taken Masters's stereo until he got into the car to leave.
Two months later on August 27, 2005, officers responded to a report of shots fired. Officers found a car flipped over and resting on its roof. Masters and his two minor passengers were being treated by medical personnel.
Masters told officers that [petitioner] had pulled up behind him and started shooting at his car while driving at high speed. [Petitioner] rammed the back of Masters's car causing Masters to lose control, go down the embankment and flip over. [Petitioner] then fled the scene. Witnesses reported hearing gunshots and saw [petitioner's] car leave the scene. Masters admitted that he was a Sureño criminal street gang member when he was younger.
Masters was flown to the hospital via Enloe Flight Care, where he was treated for a fractured arm and multiple bruises to his head and upper torso. His arm will require further surgery to repair the damage. Masters's two minor passengers were also treated at the hospital. One was treated for head and spinal pain, and pain to his finger. The other was treated for a contusion to his head and for spinal pain. [Petitioner] had a .22-caliber revolver when he was arrested. At the time of his arrest, he told officers he had engaged in a high-speed chase because Masters had flashed gang signs at him and such "disrespect" upset him. During the chase, Masters slammed on his brakes, which caused [petitioner] to slam into the back of Masters's car. [Petitioner] fled the scene because "there were three of them." [Petitioner] admitted being a Norteño criminal street gang member and was wearing a red belt and had a red bandana in his pocket.
[Petitioner], however, later denied gang membership or gang involvement, although he admitted that he and Masters have had ongoing problems since they were young. In his later explanation, he claimed he got angry and chased Masters at high speed after Masters flipped him off. During the chase, he heard gunshots and realized his friend was driving behind them, shooting a gun. [Petitioner] claimed Masters slammed on his brakes, which caused Masters to go off the road and flip over. In another version, [petitioner] claimed that after Masters slammed on his brakes, Masters sped up and came toward [petitioner].
In this version, both cars collided, spun in circles, and Masters's car went off the cliff. [Petitioner] also claimed he was high on crystal methamphetamine at the time of the incident and later arrest. (People v. Munoz, slip op. at 162-64.)
On December 2, 2005, petitioner was charged with one felony count of assault with a deadly weapon, one count of felony vandalism, three counts of attempted murder, and one count of shooting at an occupied motor vehicle. (Lodgment 1 at 32-36.) The information further alleged enhancements that petitioner personally inflicted great bodily injury upon the victim, that petitioner personally and intentionally discharged a firearm, and that petitioner committed the offenses for the benefit of, and at the direction of, and in association with, a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. (Id.)
On April 20, 2006, petitioner pled no contest to one count of attempted murder and admitted an amended special allegation of personally using a firearm during the attempted murder. (Lodgment 1 at 56-60.) The remaining counts and enhancements were dismissed, along with two other cases; however, as to these dismissed cases and counts, petitioner agreed to a waiver pursuant to People v. Harvey, 25 Cal.3d 754 (1979). (See id. at 56.) The plea agreement provided for a maximum nineteen year prison sentence. (Id. at 58.)
On August 22, 2006, petitioner was sentenced to state prison for a determinate term of nineteen years. (Lodgment 2 at 66.) The court imposed the upper term sentence of nine years on the attempted murder count and added the upper term sentence on the firearm use ...