The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner is a California state prisoner who has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.)*fn1 After a jury trial, he was found guilty of inflicting corporal injury on a cohabitant in violation of California Penal Code § 273.5(a). The jury also found true an enhancement allegation that he had a prior felony conviction (see Cal. Pen. Code §667(b)-(i)) and he was sentenced to six years in state prison. Petitioner contends that the trial court erred in: (1) admitting into evidence statements made by the victim during a 911 call and to the police officer who responded to that call, and (2) imposing a sentence that exceeded the statutory maximum under California's Determinate Sentencing Law. The court, having reviewed the record and briefing of the parties, finds as follows:
Petitioner's jury trial commenced on July 11, 1994. See People v. Shipley, 2008 WL 2461811, at *2 (Cal.App. 3 Dist. 2008). Petitioner failed to appear on the third day of trial, and a bench warrant was issued for his arrest. Id. The trial court ordered that the trial continue in his absence. Id. On July 15, 1994, the jury convicted him of violating Cal. Pen. Code 273.5(a) and, in a bifurcated proceeding, found true the allegation that Petitioner had been convicted of first degree burglary in 1984. Id. Nearly eleven years later, Petitioner was arrested and sentenced on the 1994 conviction. Id.
Petitioner appealed his conviction in the California Court of Appeal, Third District, alleging that the trial court erred in: (1) admitting the victim's statements into evidence, (2) denying a motion to strike the prior offense allegation, and (3) imposing a parole revocation fine under a statute enacted after his offense. On June 19, 2008, the Appellate Court rejected Petitioner's first two grounds for relief, but found merit in the third contention of error. Shipley, 2008 WL 2461811 at *1. The judgment was modified to strike the parole revocation fine imposed under Cal. Pen. Code §1202.45. Id. at 6. Petitioner filed a petition for review with the Supreme Court of California, which was denied on August 27, 2008.
Petitioner filed a petition for writ of habeas corpus in the California Superior Court, Sacramento County. He alleged in the petition that: (1) the trial court erred in imposing a sentence that exceeded the statutory maximum under California's sentencing structure, (2) he was denied his right to a jury trial on the prior criminal conviction, and (3) his constitutional rights were violated when the trial court imposed the sentence as a "strike 2" case. (Dkt. No. 29 at 4.) The petition was denied on June 4, 2007. He filed a petition with the California Court of Appeal, Third District, which was denied on July 7, 2007. (Id. at 44.) The California Supreme Court, in turn, denied the petition on October 10, 2007. (Id. at 45.) The present petition was filed in the United States District Court for the Eastern District of California on December 5, 2007 (Dkt. No. 1) and transferred to this court on March 2, 2010 . (Dkt. No. 37.)
On March 23, 1994, Petitioner's cohabitant, Cheryl, called 911 and asked for medical assistance because her boyfriend, Petitioner, "really beat me up pretty bad." Shipley, 2008 WL 2461811 at *1. She said she had run to a store from their house, a few blocks away, after the incident, 15 to 20 minutes earlier. Id. Cheryl stated that she did not want to file charges, "just I'm afraid right now.We have a little one at home, too..I just want to talk to a police officer, I think..I want to go home." Id. Deputy Wright responded to the 911 call. When he arrived at the store, the left side of Cheryl's face was swollen, bruised and bloody. Id. She was very upset and difficult to understand because she was crying. Id. Cheryl told Deputy Wright that the Petitioner had hit her several times in the face with his fist, knocked her to the ground and kicked her. Id. Deputy Wright returned with Cheryl to her residence where Petitioner became agitated and combative. Id. The deputy placed Petitioner in his patrol vehicle, returned to the residence, and took a more detailed statement from Cheryl. Id.
Cheryl did not appear at trial; however, a transcript of her call to 911 and her statements to Deputy Wright were admitted into evidence.
Petitioner raises the following grounds for relief:
1. The trial court erred in admitting into evidence the victim's out-of-court statements; and
2. The trial court erred by imposing a prison term that exceeded the statutory maximum allowed under ...