The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In the Fresno County Superior Court, Petitioner was convicted in Case No. F07908053 of possession of a controlled substance (Cal. Health & Saf. Code § 11377(a)). In Case No. F07909295 Petitioner was convicted of first degree burglary-non-participant present (Cal Penal Code*fn1 §§ 240, 459, 460(a)). In Case No. F08900941 Petitioner was convicted of residential robbery (§ 211) while on bail or own recognizance release (§ 12022.1). Petitioner was sentenced to an aggregate term of nine years four months in state prison.
Petitioner filed a notice of appeal to the California Court of Appeal, Fifth Appellate District. On October 14, 2009, the Court of Appeal affirmed the judgment.
Petitioner filed a petition for review in the California Supreme Court. The petition was denied on December 23, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on June 17, 2010. Respondent filed an answer to the petition on October 19, 2010.
Case No. F07908053 Police stopped a vehicle [Petitioner] was driving after noticing the vehicle had paper license plates. [Petitioner] had in his possession a BB-gun, .06 grams of a substance containing methamphetamine, and a glass smoking pipe.
Case No. F07909295 "AM" went to the apartment of his friend "MC," where he encountered a man, who identified himself as MC's brother-in-law. The man left the apartment. AM later met with MC, and told her that her brother-in-law had been at her apartment. MC said she did not have a brother-in-law. She went home and found that various home electronics items, valued at $710, were missing. Two days later, police made contact with [Petitioner], and found in his possession a video recording and credit card belonging to MC. AM went to where the police detained [Petitioner] and identified as the man he had seen in MC's apartment.
Case No. F08900941 "RF" approached Annette Husted, who was working as a prostitute, and negotiated a price for sex. They went to a motel and entered a room where [Petitioner] was sleeping on a bed. [Petitioner] "demanded money for the sex act, and removed [RF's] wallet." [Petitioner] then "displayed a handgun to RF and told him to go back to their vehicle because they were going to go get money." [Petitioner] then "took Husted and [RF] to an ATM machine" where he "forced RF to remove $400 from his bank account." The group then drove to another ATM machine "where RF removed another $100." [Petitioner] then told RF that they would go to the country and 'take care of business,' . . ." The group then drove to RF's residence, where RF placed two laptop computers and other items in a duffel bag and handed it over to [Petitioner].
Pursuant to the plea agreement, various charges and enhancement allegations were dismissed, including, in case no. F08900941, charges of kidnapping for the purpose of committing another crime (§ 209, subd. (b)(1)) and first degree burglary with a non-participant present (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)), and enhancement allegations that [Petitioner] used a firearm in committing the kidnapping and the burglary (§ 12011.53), personally used a handgun in committing the burglary and committed the kidnapping and the burglary while free on bail or his own recognizance (§ 12022.1).
In sentencing [Petitioner], the court stated: "[T]hese are offenses for which [Petitioner] is presumptively ineligible for probation. His failures to make court dates were not due to his health but because of his total inability to comply with the Court's directions and the Court's conditions of release. He was released, committed new crimes, the Court released him again, and he continued, then, to commit crimes, including the most serious crime of all of his crimes, that being the robbery which started as a kidnap for robbery, a crime punishable by life in prison. Based on his repeated commission of crimes while out of custody O.R. or on bail, based on his increasingly serious crimes, and based on his presumptive ineligibility for crimes while on probation, the Court finds he would not be a suitable candidate for probation . . . . When one kidnaps a person with a weapon and takes them to an ATM to rob them, one has committed a life top crime, which the People dismissed in light of the plea, and I think in light of that, it's an important consideration. I think I ought to consider the dismissed counts. There were a number of crimes dismissed . . . in light of his pleas to the charges that are before me for sentencing. Those are all properly considered as factors in aggravation. He did use a weapon, the weapon having been dismissed as part of the plea agreement, but, nonetheless, the People's charge of that and dismissal of that is a factor for the Court to at least consider in imposing sentence. But even independent of that, his conduct here is violent conduct which indicates a serious danger to society. His sustained petitions in juvenile delinquency proceedings and violence as an adult are of increasing seriousness. His prior performance on juvenile probation was unsatisfactory. . . . [H]e was on juvenile probation at the time of the commission of one of the crimes before me for sentencing today, which is also . . . another aggravating factor. The Court in selecting its sentence will be choosing one of his crimes which could have run consecutive to the others, and we'll be imposing that concurrent rather than consecutive, that being another appropriate factor for the Court to consider in aggravation.
"I'm not aware of any mitigating factors in this case. He was the leader in this case. It was his determination to take the victim to another location, it was his use of a weapon that encouraged and resulted in his compliance. He was the one that also had the other crimes and was out on bail or O.R.at the time of the commission of the offense. . . . He's sentenced to the Department of Corrections for the six-year aggravated term for [the robbery in Case No. F08900941]. . . . [¶] . . . [¶] . . . The aggravated term is selected for the reasons previously stated . . . ."
After imposing sentence, the court asked, "Anything else." Defense counsel responded, "No, Your Honor."