FINDINGS AND RECOMMENDATIONS
I. INTRODUCTION Petitioner Terry Buford is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of attempted premeditated murder of a fetus, assault with a deadly weapon, second degree robbery, kidnapping to commit robbery, attempted robbery, and conspiracy to murder a human fetus, for which he is currently serving multiple life sentences. In the pending petition, petitioner claims that various errors at trial and sentencing deprived him of his constitutional rights.
On December 14, 2005, the Sacramento County District Attorney's Office charged petitioner and three co-defendants (Dwayne Curry, Titenesha Russell, and Tashara Boone) with six crimes:
(1) Count 1 -- attempted premeditated murder of "Baby Doe," a seven-month-old fetus (Cal. Penal Code §§ 664, 187(a));
(2) Count 2 -- assault with a deadly weapon upon L.R. (Cal. Penal Code §245(a)(1));
(3) Count 3 -- second-degree robbery of L.R. (Cal. Penal Code §211);
(4) Count 4 -- kidnapping to commit robbery (also known as "aggravated kidnapping," Cal. Penal Code §209(b)(1));
(5) Count 5 -- attempted robbery of L.R. (Cal. Penal Code §§ 664, 211); and
(6) Count 6 -- conspiracy to murder a human fetus (Cal. Penal Code §§ 182(a)(1), 187(a)).(Clerk's Transcript on Appeal ("CT") at 207-11.)
At the joint trial of petitioner and his co-defendants, evidence was admitted as follows:
The Prosecution's Case L.R. dated Buford before she became pregnant with his child in February 2004. As the pregnancy progressed, Buford told L.R. she should have an abortion. L.R. wanted to have the baby and told Buford that he could "just pay child support" if he "didn't want to be there." Buford acted indifferently and began to deny that the child was his. When L.R. was about five months pregnant, L.R. and Buford broke off their relationship.
At some time in the weeks leading up to the assault, L.R. called Buford's cell phone. A woman answered and identified herself as Buford's sister. The same woman, whose voice L.R. identified as Russell's, called L.R. to ask about the baby and the identity of the father. She continued to make harassing phone calls to L.R., calling her a "bitch" and threatening to kill L.R. and her baby. Before the assault, L.R. told petitioner that she had $700 and was willing to lend him money to repair his car. She lived with her grandmother and kept the money there.
Boone testified pursuant to her agreement to cooperate with the district attorney's office. She and petitioner were "best friends." On father.
Between September 20 and September 25, Buford and Boone devised a plan. Buford would invite L.R. to the movies but take her to a park where Boone would beat her up. The goal was to force L.R. to have a miscarriage. Boone asked Russell to help beat up L.R. and she agreed.
About 8:00 p.m. on September 25, 2004, Buford picked up L.R. at her home for the ostensible purpose of taking her to the movies. He was driving a white Chevrolet Malibu. Curry, whom L.R. knew through Buford as "Pacman," was sitting in the backseat. Buford picked up Russell, who joined Curry in the backseat, then drove to a liquor store. After Buford, Curry and Russell bought liquor, everyone changed seats. Russell drove with Curry beside her. Buford and L.R. were in the backseat. Instead of going to the movies, defendants drove L.R. to a park in Elk Grove.
Buford and Russell informed Boone of their whereabouts by cell phone, while she waited for their arrival at the park. Buford, Curry and Russell drank behind some bushes and L.R. sat by herself. Eventually, L.R. told Buford she wanted to go home and he agreed to drive her back. Buford had his arm around L.R.'s waist, but turned sideways as they walked.
When Buford gave the signal, Boone and Russell ran in front of him and L.R., turned, and Boone sprayed L.R. in the face with Mace. Boone also hit L.R. in the face. L.R. tried to fight back but was blinded by the Mace. Russell joined the fray and punched L.R. in the face. L.R. fell to the ground. L.R. told her attackers that she was pregnant. When L.R. asked Buford for help, he responded, "[J]ust fight back."
The attack continued while L.R. was on the ground. Curry kicked her in the side. He also threw a garbage can at L.R., hitting her in the head. Boone removed L.R.'s tennis shoes and someone took her cell phone. At that point, Boone and Russell left in the Malibu by themselves. They drove north on Interstate 5 toward Meadowview where Russell's grandmother lived.
Back at the park, L.R. asked Buford to call an ambulance and he said, "Okay." However, instead of calling the ambulance, Buford called Boone and told her to "come back and finish the job." Boone asked Buford if he was trying to kill L.R., and Buford said, "[N]o, just the baby." He wanted Boone to continue, "as long as that baby gets up out of her." While Russell and Boone were driving back to the park, Buford called again to tell them to bring a baseball bat and flashlight from the car.
Boone and Russell approached L.R. at the park carrying a flashlight and baseball bat. Boone struck L.R.'s leg with the bat and Russell hit her in the head with the flashlight. The women told L.R. that Buford was not the father of her baby and he was not going to pay child support. L.R. named someone else as the baby's father because she wanted the beating to stop.
Boone testified that while Russell and L.R. continued to fight, Curry hit L.R. in the head, knocking her to the ground. Boone also stated that Curry kicked L.R. with both feet as she lay on the ground saying, "Help me, my baby." L.R. lost consciousness while she was on the ground.
Boone and Curry began searching L.R.'s clothing for money. Boone took $20 that they found inside L.R.'s bra. Changing her earlier testimony that she first learned of L.R.'s $700 in the car after they all left the park, Boone stated on redirect examination that Buford and Curry were looking for the $700 when Curry pulled L.R.'s clothes off. Curry removed L.R.'s pants and someone removed her socks. Defendants carried L.R. to the Malibu.
Once inside the car, Buford showed Boone and Russell a picture of the $700 on his cell phone, an image he had received from L.R. Although L.R. was not fully conscious, Buford suggested that they get the money from L.R's house by having her call her brother and asking him to bring it to the car.
Curry drove to Russell's apartment to get clean pants and underwear for L.R. Russell's roommate brought the clothes to the car and Boone and Russell put them on L.R. in the backseat of the car. Russell put a BB gun on her lap to scare L.R.
Curry continued to drive. Russell, Boone and Curry bought and smoked marijuana with the $20 they had taken from L.R. When someone looked in the car, Russell stated, "See what we do? See how we beat up bitches?" They let L.R. out of the car to urinate near a tree, but Boone and Russell stood next to her.
Once L.R. was awake, defendants turned their attention to the money. Boone and Russell told L.R. that she "better find some way" to retrieve the $700. Someone handed L.R. a cell phone and ordered her to call home. L.R. telephoned her grandmother and told her to send L.R.'s brother outside with her purse.
L.R.'s grandmother stepped outside of the house at 1:00 a.m. and saw the Malibu approaching. Curry sped away and L.R. called her grandmother again, telling her to send L.R.'s brother to the car with the money. Sensing trouble, L.R.'s grandmother asked if she was being held against her will. L.R. said that she was.
Curry pulled up again and L.R.'s brother approached the car. When he saw that L.R.'s face was bruised and bleeding, he told the occupants of the car to let her out. Instead, Curry drove off with L.R.'s brother holding onto the car door. L.R.'s grandmother called 911 when L.R.'s brother came inside.
L.R. asked to be taken to a hospital, but Curry refused. After discussing alternatives, defendants left L.R. by the side of the road. Curry drove to Russell's apartment where he, Russell and Boone spent the night.
L.R. walked to a nearby apartment where a resident found her and called 911. L.R. had bruises on her face and stomach and was fading in and out of consciousness. An ambulance transported her to the hospital.
Doctors treated L.R. for a fractured eye socket and extensive bleeding inside the eye. She was still experiencing double vision at the time of trial. The doctors drained blood from both of L.R.'s swollen ears. They noticed abrasions on L.R.'s face, abdomen and buttocks, and bruises all over her body.
Fetal heart monitors indicated that L.R.'s unborn baby was in distress and not receiving enough oxygen. L.R. was nearly 32 weeks pregnant at the time of the assault and had not experienced any problems with her pregnancy. Doctors delivered the baby by emergency Cesarean section. The baby had an initial Apgar score of 1 on a scale of 1 to 10. A normal baby has an initial Apgar score of 7 or 8. Doctors placed the baby on a mechanical ventilator for 48 hours and supplied oxygen through its nasal passages for another five days. The baby remained in the hospital for three weeks.
Buford's Defense Buford's aunt, Crystal Latimore, testified that she met Boone in county jail in the fall of 2005. Boone approached her and began talking about the case. According to Latimore, Buford picked up Boone on his way to the movies because she asked for a ride. The aunt also testified that Boone said that the fight with L.R. was just between the two of them.
Curry's Defense Curry testified that he called Buford on the day of the assault to ask him for a ride to a motel where he was scheduled to baby-sit. When Buford arrived, he told Curry that he had to "handle some business" before driving him to the motel. Buford picked up L.R. in Del Paso Heights, picked up Russell in another part of town, then drove to Elk Grove.
According to Curry's testimony he did not learn about the plan to beat up L.R. until they met Boone at the park. Curry watched Boone and Russell assault L.R., but did not take part. He also claimed that he did not know that L.R. was pregnant until she fell to the ground and her peacoat came open.
Curry also testified about what happened when Boone and Russell returned to the park. He confirmed earlier testimony that Boone hit L.R. with the baseball bat and Russell hit her with the flashlight. Curry denied that he kicked or hit L.R., or threw a garbage can at her. [Boone]'s sister*fn1 testified later at trial that Buford, rather than Curry, had kicked L.R. in the stomach while she lay on the ground in the park.
With respect to L.R.'s $700, Curry recounted that Russell pointed a gun at L.R. in the car and threatened to shoot her if she did not get the money. Curry said that he did not know what Russell was talking about and had not been privy to any discussions regarding the $700. He denied seeing the cell phone photo of the money. However, on cross-examination, Curry stated that while L.R. was lying on the ground in the park after the beating, he heard Buford tell the group to "check her for money."
Curry testified that he drove the car to Russell's apartment and L.R.'s grandmother's at the direction of Boone and Russell because he was afraid of them. He thought Russell's gun was real.
In response to a question from Russell's trial counsel, Curry testified that he was drunk at the park after consuming one and a half bottles of Mad Dog. On cross-examination, Curry stated that he knew what was happening and was able to drive the car. He acknowledged that he told the district attorney's investigator that he was "a little screwed up" from the alcohol, but "not too bad." Russell's Defense Russell testified that she spoke to L.R. one time before the assault. She was on the ...