The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both petitioner and respondent have consented to the jurisdiction of the undersigned. (Dkt. Nos. 4, 15.) Petitioner challenges his 2006 conviction for assault (Cal. Penal Code § 240)) (count one), false imprisonment (Cal. Penal Code § 236) (count three), assault by means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)) (count five), two counts of criminal threats (Cal. Penal Code § 422) (counts six and seven), and inflicting great bodily injury under circumstances involving domestic violence (Cal. Penal Code § 12022.7(e)) in the commission of count five. Petitioner is serving a sentence of 17 years and 4 months.
The petition raises the following claims: prosecutorial misconduct (2 claims); and insufficient evidence.
After carefully considering the record, the undersigned orders the petition denied.
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85 (2011). That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record.
"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). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief. Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. Id. at 786.
Petitioner's opening brief on appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it below.
24-year-old Jessica Ward lives in the Sacramento area. Ward met appellant through a mutual friend who lived in the same apartment complex as she. Appellant and Ward became lovers and moved into an apartment at 1769 Capitol Park Drive in Natomas; the two lived together for a year, with Ward paying for everything. Others, such as Ward's 4-1/2 year old daughter Layla and appellant's children, would stay with them from time to time. Ward loved appellant and developed feelings for his family as well. Ward's daughter was living with her parents in Citrus Heights. (2 RT 368-374.)
Ward worked as an "escort" and had done so since turning 21. This work includes prostitution. Appellant knew of her line of work, but they did not talk about it. Ward and appellant argued because appellant was having sex with other women. Appellant punched and choked Ward during some of their arguments. This occurred more than twice, and was a factor in their eventual breakup, which occurred around April 1, 2005. Ward left the Capitol Park Drive apartments and went to her cousin's place since she "couldn't take it anymore." Appellant phoned Ward "a lot" in the two-week period before April 20, 2005. (2 RT 374-380.) Appellant was not handling the breakup well. His messages were angry and threatening, and he wanted Ward to return to the apartment so that the two could talk. Ward would respond by asking, "Where's your girlfriend?" After awhile, however, Ward began to miss appellant.
On April 20, 2005, appellant called Ward a number of times. She agreed to return to their apartment, hoping things would be different. Ward arrived in the later part of the evening, around 11 p.m., borrowing her friend's car to get there. She parked around the corner and walked to the front door. Their apartment was a downstairs unit with two bedrooms. The front door opens into a living room, and the master bedroom is straight to the rear of the apartment. Appellant answered her knock on the door and smiled at Ward. She smiled back at him, glad to see him at that point. Appellant said, "Let's go talk," and the two went to the master bedroom. (2 RT 382-384.) A relative and a friend of appellant's were seated in the living room, playing loud music on the computer. Ward did not speak to the two men, but knew them as "Nino" and "Twin." As the name implied, "Twin" has a twin brother, but since Ms. Ward did not know him well, she did not know which twin he was. After appellant and Ward were in the bedroom, appellant closed the door. (2 RT 385-386.)
Ward sat on the bed. Appellant told her that he wanted the two of them to go to Reno and get married. Ward responded that she did not think this was a good idea because it wouldn't solve any of their problems. Appellant asked her again, and again Ward refused. After confirming that she was not going to go to Reno with him, appellant began punching Ward in the face with his fist as hard as he could. She was hit three or four times before finding herself on her back on the floor. Appellant pinned Ward down and continued to hit her. She was crying and trying to block his punches with her arms. Appellant hit Ward more than ten times and she kept trying to get away from him. Ward was 5 feet 3/12 inches tall and weighed 120 pounds. Appellant also kicked and stomped Ward on her side, head and shoulders while she was on the floor. Ward begged appellant to stop. Appellant would stop for a little while and resume the beating. After the two had been in the bedroom for an hour, appellant took out a gun. (2 RT 387-390.)
Ward described the gun as a .45 magnum revolver, chrome with a wooden handle. Appellant pointed it at Ward, then put it in his mouth and told her, "I should just do it." The gun had been under the mattress. By this time, Ward had taken her clothes off and appellant tossed them out the door. She disrobed because appellant told her to do so, and Ward was scared. Appellant had Ward's belt, one that had studs on it. He told her to lie on the bed and open her legs. Ward feared that appellant would hit her with the belt, but he did not do so, hitting the bed next to her several times instead. While doing so, appellant exclaimed repeatedly, "Oh, you want to fuck dudes." Ward was pleading with appellant to stop. She attempted to go to the bedroom window and open the blinds to see if she could get someone's attention. Appellant grabbed her, threw her out on the bed and choked her to the point where she passed out. (2 RT 391-397.)
During the course of the evening, appellant choked Ward about five or six times to the point of her passing out. Appellant also threatened to pistol-whip Ward, telling her, "Maybe I should just beat the shit out of you with this gun," but did not do so. (2 RT 396-402.)
Appellant allowed Ward to use the bathroom during this ordeal. He gave her a shirt to wear and accompanied her to the bathroom, which was across from the living room. The two men Ward had seen when she first arrived that night were still there. She did not ask them for help because she felt it would do no good. Appellant told the two men, "Turn the music up. I'm going to beat this bitch's ass." After that, the music increased in volume. (2 RT404-408.)
Appellant and Ward had sex about five or six hours after the beatings started. She was attempting to get appellant to take her to the hospital, and was telling him that they could be together, that she loved him, and please not to beat her anymore. Ward knew that sex might calm appellant down, so she initiated sex with appellant while the two were watching television. She also complained that something was really wrong with her and that she was on the verge of losing consciousness. Finally, around 4 a.m. appellant had to take his mother to work, so he first drove Ward to the Sutter Emergency room at 28th and L in downtown Sacramento. Appellant took Ms. Ward's car keys and told her to call him when she was released. (2 RT 409-415, 3 RT 611-614.)
At the hospital, Ward was given a series of tests, including x-rays and a CAT scan to see if anything was broken. The staff asked her how she'd gotten hurt, and Ward told them she did not want to discuss it, just that her boyfriend had beaten her up. Ward did not give hospital staff appellant's name. Police Officer Cunningham interviewed Ward, but she did not give him any information about appellant since she did not want appellant to get in trouble. However, Ward was afraid that she or her family would be hurt if she told the police appellant's name. Appellant had met Ward's parents before, and knew where they lived. This worried Ward. (2 RT 416-420, 3 RT 822-828, 836-837.) [Footnote 3]
[Footnote 3: At this point in her testimony, Ward was shown a series of photos (Exhibits 1-26, 2 CT 588-3 CT 613) that depicted her on the day that she reported the crime to the police. She described the contents of those photos to the jury. (2 RT 422-420.)]
Kerilee Wenker, M.D. was the emergency room physician who examined Ward at Sutter General Hospital at 4 a.m. on April 21, 2005. Dr. Wenker observed that Ward had very obvious bruising on her face and severe black eyes. Ward exhibited petikia, pinpoint areas of bleeding on the neck on both sides in a hand pattern, and petikia around her eyes and her mouth. Ward had multiple contusions on her shoulder, arm, her lower posterior rib cage, her anterior rib cage and a lot of bruising on her back. Her face and eyes were swollen. Ward had a small laceration on the inside of her upper lip. The petikia on the neck was consistent with strangulation, which is potentially lethal. There would be brain damage if the carotid artery were compressed for several minutes. (3 RT 727-737.)
Dr. Wenker ordered chest x-rays, a CAT scan, blood work, and a urinalysis. These revealed that Ward had a fracture of her nasal wall but no other abnormalities requiring treatment. Ward told thedoctor that she'd been assaulted by an ex-boyfriend, but refused to give details, saying, "We couldn't protect her." Dr. Wenker called the police. Ward appeared frightened and refused to give information to the police or to hospital staff. Ward was given a prescription for Vicodin and was administered painkillers, including morphine and Toridal, while in the emergency room. Ward told Dr. Wenker that she'd been strangled until she passed out for a few seconds, punched, kicked and thrown to the ground.
(3 RT 738-743.) No surgery or follow-up was required for the nasal fracture. (3 RT 789.) Wenker spent 15 minutes with Ward that night, telling her that the next time it happened, she might be dead, so she really should follow up. (3 RT 781-785.)
When released from the hospital that same morning, Ward had a friend pick her up. He was told to bring a pistol since Ward was going back to the apartment to retrieve they keys to the car she'd driven to her and appellant's apartment the night before. The friend brought a "nine"; Ward and her friend parked around the corner from the apartment. Ward told him to give her two minutes inside and if she did not come out, to kick in the door. Ward looked through the master bedroom window and saw that appellant was asleep. Ward got into the apartment through the other bedroom window after removing a screen. She went to the master bedroom and was able to retrieve her friend's car keys from the pocket of appellant's pants and dash out of the apartment without being stopped. She and the friend, who she refused to name, picked up her friend's car and left the area. Ward stayed with a cousin and in hotel rooms for the next several days. (2 RT 431-434, 3 RT 615-638, see also 2 CT 823-824 (Def. Exhs. U, V.).)
Starting on April 21, 2005, appellant called Ward numerous times. He was upset over her taking her friend's car keys when he was asleep, telling Ward that he was going to "kick in my mom's door and shoot my dad in the face and kill my whole family." During other phone conversations that occurred, both appellant and Ward issued threats. Ward threatened to have the associates of her child's father, who was doing life in prison, deal with appellant. The threat to kill her family upset Ward; she felt it would be irresponsible of her not to warn them of appellant's threats. Ward so informed her father of appellant's threats and that he'd beaten her up. Her father insisted that she go to the police. (2 RT 434-438, 3 RT 694-696.)
Ward went to the police station in Del Paso Heights on April 22, 2005, a Friday, and was interviewed by Officer Janet Howell. A social worker and Howell's training officer, Hight, were present as well. Ward gave a statement concerning the events of April 20 and 21, 2005. (3 RT 839-846, 4 RT 913-914.) During this interview, Ward told Howell she went to the Capital Park Drive apartment the night of April 20 to retrieve her belongings, which was untrue. Ward lied because she felt foolish about going to the apartment for the reason that appellant had invited her over and she missed him; at that point, Ward felt she should have known better. Ward corrected her statement in a later interview with the prosecutor and her investigator. Other parts of the statement generated on Ward's visit to the police on April 22, 2005 were out of chronological order, but Ward testified on direct examination that the facts contained therein were true except for the reason she went to the apartment in the first place. (2 RT 439-443, 3 RT 845-846.) [Footnote 4]
[Footnote 4: On cross-examination, however, Ward admitted that her initial statement to Officer Howell contained several other untruths, such as that she stayed with her parents after moving out of the Capitol Park apartments prior to April 20, 2005 (2 RT 516-518, 3 RT 845-846), that she drove around looking for appellant's car on April 20 before entering the apartment on that date, that she used a key to enter the apartment (2 RT 526-531, 3 RT 846), and that she did not know "Nino," one of the two men in the living room during the beatings (2 RT 543-544, 3 RT 847.)
During the interview with Officer Howell, Ward stated that appellant had told her he and his friends sat outside her parent's house to see when Ward's father got home from work. At 4:56 p.m., while the interview was proceedings, Ward's cell phone rang. Ward informed Hight that it was appellant who was calling. Hight instructed Ward to answer the phone and hold the phone in such a way that both Ward and Hight could hear appellant. Appellant was yelling and agitated. Hight heard appellant say "the game's over. I'm going to kick your mom's door in and make it look like a home invasion. I'm ready, nigga. Let me load this right now. Hold on. Bring it, nigga. Bitch, nigga...[¶] I'm going to get all the people you feel about. I guarantee I'm gonna get ya. I'm not gonna get ya. I'm going to beat ya." This call lasted four to five minutes. During this call Mrs. Ward was egging appellant on, attempting to get him to say what he was saying. She was telling appellant, "Go ahead, try. My homies will take care of you." Ward hung up on appellant and appellant called back, telling Ward that he was going to make her eat her words and wasn't fooling around. Hight also wanted Ms. Ward to have her body examined for rape at the hospital, but se refused. (2 RT 443-447, 462-464, 3 RT 861-863, 4 RT 1120-1124.)
Hight went to the Capital Park Drive address in an attempt to find appellant, but no one was home when he arrived. (4 RT 1126-1127.) When Hight spoke with a neighbor, the neighbor did not mention hearing anything on the night of April 20, 2005. (4 RT 1145.)
Sacramento Police Officer Douglas Rosin arrested appellant on April 25, 2005. Rosin was informed that appellant was seen leaving an apartment complex on Mill Creek in North Sacramento. Officer Rosin, in uniform, was at a nearby intersection in a marked patrol car with a bar when appellant's vehicle drove by. Rosin attempted to pull appellant over, through use of his siren and a light bar, but appellant failed to stop immediately, going onto the freeway to the next exit before pulling over. Appellant was taken into custody, and Tadius Mathis was a passenger in the vehicle. (3 RT 790-796.) Appellant and his vehicle were searched and no weapons or drugs were found in the vehicle. (3 RT 800-801.)
Sacramento Police Officer James Luevano transported appellant to county jail following appellant's arrest. A rape kit was conducted on appellant, which includes a blood draw and a collection of hair samples in the pubic area. Luevano also read appellant his Miranda rights, and appellant understood and indicated that he would speak with the officer.
Appellant told Luevano when asked what happened on April 20, 2005 with respect to Jessica Ward that he did not know what the officer was talking about and did not know anyone by that name.
(3 RT 803-808.) Appellant also told the officer that he did not want to discuss the matter with him, and appeared not to want to speak to the officer after being told who made the accusations leading to his arrest. (3 RT 819.)
Within a couple of days following her interview with the police on April 22, 2005, an investigator called Ward and told her that appellant had been arrested. Appellant and Ward communicated with each other via the phone in appellant's holding cell. These calls would be in the middle of the night, around 3 a.m. Ward identified a tape recording of some of those calls (People's Exhibit 38A), which was played to the jury. After listening to the tape, Ward stated that she wished none of this had happened, including her testifying against appellant and his being in jail. (2 RT 448-454.)
Some of the phone calls made were through appellant's mother as a three-way call. Throughout this time period, Ward was still dealing with the love she had for appellant. Ward initiated a protective order that appellant not be allowed to contact her, but did not follow up on it. (2 RT 456-458.)
The conversations between Ward and appellant vacillated between appellant's being angry with Ward and his professing love for her. At this point, tapes of two phone conversations between appellant and Ward, one right after his arrest and the other in the early morning hours of April 26, 2005, were played to the jury. (People's Exhibits No. 39A, 40A.) Ward wrote appellant one letter while he was in custody, in which she expressed her feelings about his cheating on her and that she loved him. (2 RT 459-468.)
On June 3, 2005, Ward gave a statement to the defense attorney and his investigator, telling them she wanted to "straighten things out." Ward testified that she lied during this interview, claiming that she was beaten by a john before going to her apartment on April 20, 2005 and falsely blaming the beating on appellant due to the fact that she found him with another woman, an Eastern Indian lady. (3 RT 643-650.) The Eastern Indian woman that appellant was seeing was a subject of the letters she wrote to appellant while he was in custody (Defense Exhs. W1, X1, Y1) and the card she sent along with a receipt (Z1) pictures (AA). Ward read the text messages from this woman on appellant's phone. This upset Ward to the point where she was crying herself to sleep. (3 RT 651-655.) A tape was played that was taken in December of 2005, during which Ward expressed her displeasure concerning appellant's relationship with the Indian woman. (3 RT 656-657, 3 CT 849-854 (Defense Exh. CC).)
In August of 2005, Ward was asked to come to the district attorney's office to meet with the prosecutor and her investigator, John Trefethan. Ward did not want to do so, but eventually agreed, arriving with her father, Jan Lindman. Ward cleared up a couple of the differences between statements contained in the initial interview with the police and what she remembered of the night of April 20-21. In her several appearances before trial, it was arranged for Ward to take a cab to the district attorney's office and wait there until she was told whether she had to appear; Ward felt this arrangement was safer than having to appear outside of court.
(2 RT 469-472, 4 RT 931-934.) Trefethen felt that the person Ward identified as "Twin," one of the men in the living room of the apartment when the beating occurred, was Jamal Broadbent, since he remembered that name from a prior encounter. Trefethen showed Ward photos of Jamal Broadbent and his twin brother, Jason Broadbent, but Ward was uncertain as to which of the two was present in the apartment. (4 RT 939-942.) Ward did identify Tideris Mathis or Nino as the second person in the living room, although she was quite reluctant to do so. (4 RT 945-946.) Ward also refused to give the name of the friend who helped her retrieve the car keys after she was discharged from the hospital. Ward was afraid of getting other people involved in the incident, because of her fear that they would be retaliated against. (4 RT 948-949.)
Ward visited appellant four or five times in December of 2005, while appellant was in jail. Ward showed up for her court appearance on December 15, 2005. She was at one point subpoenaed to court, but did not show up at the time specified. Ward showed up in court a few days later, and was ordered to appear in court January 23, 2006, but did not appear on that date. She tried to leave the state, but failed to do so, and was arrested in Fremont on January 30, 2006 for failure to appear. Ward hadposted ads on the Internet through a website, myredbook.com, for her escort service. A vice detective with the Sacramento Police found her through those ads and posed as a potential customer so that the detective and Trefethen could arrest her. Following her arrest in a Fremont motel room, Ward and her possessions at the time were transported back to Sacramento. On the way back to Sacramento, Ward had a conversation with Trefethen. He mentioned the amount of the bail that was set for her, and she indicated that she could make that amount. On hearing this Trefethen personally requested that the bail be increased to $250,000 so that Ward couldn't make bail....*fn1
Ward had not been to jail before, and was horrified. She spent eight days in jail. When Ward attempted to bail out, the district attorney requested a determination that the funds used were not ...