The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented
to the jurisdiction of the United States Magistrate Judge. Local Rule
Following a plea of no contest and a jury's determination that Petitioner was legally sane at the time of the crimes, Petitioner was convicted of grand theft (Cal. Penal Code*fn3 § 487(a)), receiving stolen property (§ 496(a)), and evading a police officer (Cal. Veh. Code § 2800.2(a)). Petitioner was sentenced to state prison for five years and four months. Petitioner appealed to the California Court of Appeal, Fifth Appellate District. The Court of Appeal reversed the receiving stolen property conviction and corrected the sentence accordingly.*fn4 The judgment was affirmed in all other respects. On May 12, 2010, the California Supreme Court denied Petitioner's petition for review.
On February 20, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on July 22, 2009, with citation to In re Dixon, 41 Cal.2d 756 (1953).
Petitioner filed the instant federal petition for writ of habeas corpus on July 1, 2009. Respondent filed an answer to the petition on June 22, 2010, and Petitioner filed a traverse on July 14, 2010.
Between about 11:00 and 11:30 p.m. on March 6, 2008, various people in Tulare saw and heard defendant outside their houses. A. Tamra
Tamra heard noises in her yard. When she turned on her lights, she heard someone running. She found her gate lock broken, a picket of her fence broken off, and a water hose cart unhooked and moved.
Tamra's next-door neighbor, Nick, heard a noise outside. He saw a small pickup parked with its lights off in the middle of the street, right next to his truck, and he called the police. He saw a man walk from the truck to the side of the house. Nick heard a loud noise then saw the man run back to his truck and drive away with the lights off.
Chelsea was at Ron's house. She heard the dogs barking while Ron was sleeping, so she went outside. She saw defendant standing near a small pickup, which was near to Ron's truck. She asked defendant what he was doing. He looked directly at her with surprise and tossed something into his truck. He walked around the truck, got in and left. Chelsea ran into the house. Ron came outside and saw that his hydraulic puller (worth about $200) had been taken out of his truck bed. The entire encased set was gone, although some of the pieces had fallen on the ground.
Brian was not awakened that night, but the next morning he discovered his gate was open and a weed eater (worth $150 to $200), a leaf blower (worth about $110), a set of barbeque utensils (worth about $25), and a rack for a Jeep (worth about $50) were missing.
E. Corey, Curtis and Mark
Corey noticed a small pickup in front of his house and told his older brother, Curtis. Curtis told him to go outside and investigate. When Corey noticed a cut chain and lock and saw chain cutters on the ground, he ran back inside to get Curtis. Curtis noticed that their neighbor, Jim, had turned on his outside light. As the brothers stood in the front yard, they saw defendant crossing Jim's lawn, carrying a gas can toward the truck. Curtis cursed at defendant and scared him. As the brothers moved toward him, he put the gas can down and started to run away. After several steps, he stopped and pulled out a sharp object, and charged toward the brothers. At this point, the brothers backed away. Defendant mumbled at them and used foul language. He got in the truck, made a U-turn, and drove away with the lights off.
Curtis went inside and woke up their father, Mark. Curtis told him someone had tried to rob them. When they heard Corey yelling that defendant was back, they went outside. Defendant's truck, still with the lights off, had stalled in front of the house and he was struggling to start it. Curtis told Mark, "That's the guy, dad ." Mark went to the truck, opened the door, and tried to pull defendant out. Defendant resisted him, so Mark punched him two or three times. Defendant turned, looked at Mark, and said, "I'll cut you mother fucker." His eyes were big and focused and he spoke rapidly and directly. Mark tried to reach past defendant to get his keys, but he could not find them. Defendant got the truck in reverse and stepped on the gas, forcing Mark to run as fast as he could while trapped between the open door and the cab. Mark ran for 20 or 30 feet until he could move away from the truck. Defendant continued driving away in reverse.
Meanwhile, Jim heard a noise in his backyard, where he had two unlocked sheds, and his dog was acting strangely. Jim turned on the light and looked outside. He saw someone standing near his sheds. By the time Jim could open the sliding glass door, the person had left down the side of the yard. The sheds were open, some things had been pulled out, and a high pressure washer, worth $199, was missing. Jim later found the pressure washer on the side of his house, next to the unlocked gate. Jim went to his front yard and saw his neighbor, Corey, walking toward him with his gas can.
Officer Lopez received a dispatch regarding several burglaries in the neighborhood. Witnesses had described the truck and provided a partial license plate number. Lopez spotted a matching truck pull into the Fosters Freeze parking lot and turn its lights off. Lopez entered the lot from the opposite direction and the two vehicles met facing each other. Lopez activated the overhead lights of his marked patrol vehicle. Defendant stopped the truck five to ten feet from the patrol vehicle.*fn6 As Lopez started to get out of the patrol vehicle, defendant put his truck in reverse and quickly backed away. As he did, he ran solidly into a tree, causing things to fly out of his truck bed. He put the truck into gear, his wheels screeching as he accelerated, and drove straight toward Lopez. As Lopez sat back down in the patrol vehicle, he thought defendant was going to hit him. At the last moment, defendant veered around the patrol vehicle, missing it by about one foot, and left the lot.
Defendant's blood was drawn between 12:00 and 12:30 a.m., and was found to contain cocaine and its metabolites, morphine, and hydrocodone. Cocaine is a stimulant and both morphine and hydrocodone are narcotic opiate pain relievers. These drugs are often taken together. The levels found in defendant's blood would cause a person to be under the influence with symptoms such as a higher pain threshold and poor judgment.
Lopez returned to the Fosters Freeze parking lot and located a hydraulic puller and its case, a leaf blower, five shovels, a rake, a flashlight, and a box containing defendant's papers. Lopez photographed acceleration skid marks from defendant's tires.
A weed eater and a barbeque utensil set were found in defendant's truck.
While Officer Hastings monitored defendant at the hospital, defendant made some strange statements about being chased by the devil before and during his apprehension by the police. Defendant was not hostile; he lay quietly.
Defendant testified on his own behalf. He explained he had been under the care of a psychiatrist and a psychologist since 2003. He had been diagnosed as a bipolar schizophrenic. He took prescription Seroquel, lithium and Welbutrin to calm him, stabilize his moods, and relieve his depression. He had been convicted of a felony and had been to prison.
On March 6, 2008, defendant had not taken his medications for about one month. He had decided to quit taking them because he needed to get work. When he failed to take his medications, he would have racing thoughts that probably were not normal. On the night of the crimes, defendant was confused. He was receiving messages of guidance. He had used cocaine about 24 hours before he was arrested, but he did not remember taking anything else.
Defendant's memories of that night were "real sketchy" and "fleeting," but he had pieced it together by reading police reports. He did remember he was told to go to an exact location to get gas. Steve Smith, who owed him money, told him earlier that evening to go to a particular address to get gas in a gas can. But when defendant came out with the gas can, two "kids" were "yelling all kinds of shit, so [he] put the can down of the gas and [he] walked to [his] truck and got in [his] truck and [he] took off." He "didn't know what to think...." He "hesitated for a minute" and decided something was wrong and he had to leave. But after he left, he decided to go back to try to explain to the people and take them to Steve. Defendant thought he had done something wrong and he did not know it. He thought it had been a trap. He wanted to explain that he was not stealing. He did not want the police involved. Before he had the chance, however, Mark ran up to the truck and hit him several times. Defendant's foot was on the clutch and the truck started moving backward until defendant hit the brakes. He did not want to believe what was happening, so he left.
He was confused and was getting messages in his mind that someone was trying to do him wrong. Osiris, the devil's brother, was out to get everyone. The Centurions were the good people in that solar system. When defendant took his medication, he did not have as much contact with these people. Although at the very moment he was testifying, he was receiving messages. He had recently received a message that defense counsel and the prosecutor were brothers.
On the night of the crimes, defendant was driving his truck when he ran over a box in the middle of the road, causing his truck to skid. He got out and put the box in his truck. He was having problems that night. He was very confused-"it never had been this serious." He "ma[d]e it" to Fosters Freeze and wanted to get out of the truck. He did not recognize the officer as a policeman; instead, he thought he was an evil demon. The more defendant looked at him, the more he saw that his eyes glowed. Defendant put his truck in reverse and "just hit it." He ran into something, but he did not realize it was a tree.
At that point, defendant "had to get away" so he "took off." He did not remember the chase, but he remembered being on a curb, then getting back on the road and having a blowout. He remembered that when the officer used the taser, it felt like his teeth were melting together. He went to the hospital because Lopez broke his wrist. The next thing defendant remembered was being stripped and put in the rubber room at the jail.
Defendant was now back on his medications, but the jail personnel refused to give him an adequate dose.
On cross-examination, defendant testified he knew it was wrong to take someone's property. He also knew that a person is supposed to stop when the police approach with lights on. He had been arrested many times, so he knew that a person is not supposed to fight with the police when taken into custody.
On the night of the crimes, defendant went to one house only-the house Steve Smith told him about. Defendant never went into any back yard and he never stole anything. He did not open a shed and take out a pressure washer. He knew if he had done that, it would have been wrong. He would not steal because he did not want prison time. He did not touch a water hose; he was not there. He did not know how the items got into his truck bed because he put a black case in his truck. He would not take something out of someone's truck because that would be wrong and he knew it that night. But it was not wrong for him to have the items that belonged to him.
At the time defendant decided to go off his medications, he knew he was hearing voices. The voices intensified when he quit taking his medications. He knew there was some risk in his decision. Defendant communicated only with the Centurions. They would never tell him to take someone's property, "[b]ut then you never know." Defendant was unemployed when he decided to quit taking his medications, but he was trying to do whatever he could, such as recycling, mowing lawns, and trimming trees. That was why he had a blower, a weed eater, and other yard tools. People sold or gave them to him. Defendant needed money for a motel room, truck insurance, and gas. He was supporting his girlfriend, too.
Defendant had trouble remembering most of the events of March 6, 2008, but he did clearly remember he did not go to anyone's house and try to take any of their property. Even while hearing voices, he would know not to do that because it would put him back in prison.
Defendant explained that he returned after the gas can incident not because he felt bad, but because he knew one little "misunderstood" incident could put him back in ...