The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction for two counts of dissuading a witness by force or threat (Cal. Penal Code § 136.1(c)(1)), two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)), felony child abuse (Cal. Penal Code § 273a(a)), stalking (Cal. Penal Code § 646.9(a)), false imprisonment (Cal. Penal Code §§ 236, 237), brandishing a loaded firearm (Cal. Penal Code § 417(b)), and knowingly violating a court order (Cal. Penal Code § 273.6(a)). On appeal, petitioner's sentence was modified to seven years and four months.
This action is proceeding on the amended petition filed November 30, 2009. (Dkt. No. 14.) The amended petition raises the following claims: 1) insufficient evidence (2 claims); and 2) violation of California Penal Code § 654.
After carefully considering the record, the undersigned recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law.... [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 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
Defendant lived on a rural property in Grass Valley with his wife of 19 years, J.W., and his 17-year-old daughter, A.W. The property had two residences, a main house in which A.W. slept, and a "granny" house in which defendant and J.W. resided during renovations to the main house.
On August 29, 2005, defendant was depressed and under considerable stress so J.W. stayed home to help him. J.W. made dinner, but defendant did not like it so he told her to make dinner again. J.W. complied and went to the store get more ingredients. After his wife left for the store, defendant started to yell at his daughter for lacking respect along with being irresponsible and ungrateful. He eventually hit A.W. hard on the arm and grabbed her by the jaw and neck, hurting and scaring her.
A.W. called a friend and used a prearranged code word to have the friend call the police. The police arrived and A.W. told them about the incident, but they left after examining her and finding no bruises.
Defendant asked A.W. what she told the police. After finding out what she had said, defendant told A.W. she should not have done that as it could get him in a lot of trouble.
Defendant's 50th birthday was on August 31, 2005. That morning, A.W. and J.W. presented birthday cards to defendant but he returned them, claiming his wife's card was derogatory and his daughter had not spent enough time on hers. Defendant then took A.W. to school, but returned home with her because she said something sarcastic to him in the parking lot.
A.W. and J.W. spent the day doing chores and working on the cards. Defendant was angry nothing had been done for his birthday, so A.W. and J.W. decided to decorate their picnic table and barbecue some steaks. Defendant was too tired and groggy to leave the granny house, so they brought the meal indoors to him. Defendant yelled during dinner and drank a gin and tonic. He had a total of five or six that night, eventually drinking straight gin. Defendant became angrier after dinner, complaining first about what A.W. said in the school parking lot, and then bringing up an incident earlier in the summer in which unknown friends of hers had strewn toilet paper over the outside of the house. As his anger over the toilet paper incident escalated, defendant grabbed his daughter by the head and shook her. After J.W. told defendant to stop, he turned around, grabbed his wife by the shoulders, and pinned her down on the couch, telling her to stay out of it. Defendant was yelling about how dangerous it was to toilet paper the house in this rural area as most people had guns. He brought out a locked metal box, opened it, and took out a semiautomatic handgun. Waving the gun around, defendant reiterated to A.W. the dangers of trespassing in Grass Valley as so many people have guns. The gun was cocked, loaded, and crossed the path of A.W.'s and J.W.'s bodies as defendant continued to tell A.W. how one could easily get shot in this area.
Testifying about defendant's use of the gun, A.W. stated "it crossed in front of me, it could have shot me if it had gone off." Defendant was talking with his hands as he held the gun rather than pointing it directly at anybody. He was between one and one and one-half feet from A.W. as defendant waved the loaded pistol.
Defendant opened the top part of the handgun and flipped out all of the bullets, leaving them on the floor. He told his daughter the bullets were hollow points which could blow her head off. He then took a different pistol, a revolver, out of the metal box and placed the barrel at A.W.'s temple, saying he wanted A.W. to know how it feels. A.W. sat there crying as he held the gun to her head, not knowing whether it was loaded.
J.W. exclaimed to defendant, "What are you doing? Are you crazy?" He leaned over and put the gun on J.W.'s temple with enough force to push her over. Like her daughter, J.W. did not know whether the revolver was loaded at this point. Defendant took the gun from J.W.'s head, opened it up, and spun the barrel to show it was not loaded, saying he would not have done this had the gun been loaded. Defendant then locked up the guns and put them away.
After putting the guns away, defendant told A.W. and J.W. if they told anyone he would kill them, and if jailed, he would hunt them down and kill them once he got out. He then sent them upstairs to go to bed, where the two sat in fear for their safety.
Defendant eventually came upstairs and said they could not leave because the phones were disconnected and he had turned on the alarm system. He told them if the police came they were to say everything was fine and not say what had happened.
The next morning A.W. informed the authorities after her mother had arrived safely at work. Defendant was arrested, read his Miranda v. Arizona (1966) 384 U.S. 436 warnings, and interviewed at jail. He told the deputy that he did not understand much of what happened yesterday as he had taken four to five Xanax pills and consumed six to eight gins. Defendant remembered talking to his daughter about the toilet paper incident and getting very angry, admonishing her that she could get shot if she did something like that. The guns were taken out to scare his daughter, but defendant first made sure they were empty. An emergency protective order was obtained and served on defendant while he was in jail.
The day after the incident, A.W. and J.W. went to a local motel under a fictitious name. Knowing defendant had been arrested and made bail they used a car cover to hide their car in the motel parking lot. They went to bed, and at around 4:00 or 4:30 a.m. were awakened by knocking on the door.
J.W. went to the door and looked in the peephole, which was covered by a finger. Afraid, J.W. stood by the door for five to seven minutes. The finger was removed from the peephole, revealing defendant as the person knocking on the door. J.W. went straight to the phone and dialed 911. After several more minutes of knocking, they heard a truck drive away.
A deputy was dispatched to the motel and defendant was pulled over after his truck was spotted leaving the motel parking lot. Defendant first said he was looking for a place to stay but eventually admitted wanting to talk to his wife and daughter. He told the deputy he did not know what type of court order he had been given, but knew he was not supposed to be around his wife or daughter. A copy of the emergency protective order and a car cover were found in defendant's truck.
J.W. and A.W. testified to physical and emotional abuse committed by defendant against J.W. during their marriage. She had previously obtained a restraining order against defendant and left him, but defendant talked her into returning.
An expert testified on domestic violence. Domestic violence involves an ongoing pattern of coercion and intimidation designed to control the victim. The abuse is much more emotional than physical, and it is common for the victim to leave the perpetrator and return. None of the ...