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Harris v. Carey

March 18, 2011




Petitioner, James Leslie Harris, is a state prisoner*fn1 proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn2 Petitioner challenges the constitutionality of his 2006 jury conviction in the Shasta County Superior Court for first degree robbery.


Petitioner presents four grounds for relief. Specifically, the claims are as follow, verbatim:

(1) Petitioner submits that substantial evidence was presented that showed Petitioner's good faith belief in his claim of right to the property at issue in the robbery charge.

(2) Petitioner submits that the court had a sua sponte duty to instruct the defense of claim of right as a material issue that was supported by substantial evidence and its failure to do so was reversible error.

(3) Did the lower court err in affirming that the trial [court] did not abuse its discretion in permitting the admission of evidence of a prior offense, in contradiction of Evidence Code 1101(b)?

(4) Petitioner submits that the lower court erred in its determination that the trial court did not abuse its discretion when imposing concurrent sentences for Counts 3 and 4.

Both parties have consented to jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case, including trial and entry of final judgment, with direct review by the Ninth Circuit Court of Appeals, pursuant to 28 U.S.C. § 636(c)(1).


The basic facts of Petitioner's crimes were summarized in the unpublished opinion*fn3 of the California Court of Appeals, Third Appellate District, as follows:

A. Background and Prior Misdemeanors

Defendant and Johnson had been a couple for about six years. Defendant acted like a father to Johnson's three children. Problems developed in their relationship after they moved from Ohio to California in 2003. Although they lived separately at times, defendant contributed to the financial maintenance of the household on a regular basis.

In February of 2005, defendant and Johnson were living separately. On February 8, defendant came to Johnson's house for dinner with her permission. After dinner, defendant started pacing, going through papers, and making accusations against Johnson. Fearing defendant would become enraged, Johnson told him she should take him home, and defendant agreed. Upon arriving at his residence, defendant refused to leave the car. He tried to grab the keys form [sic] the ignition, but Johnson got them first and hid them.

Defendant got out of the car, came around, opened the driver's door, and began struggling with Johnson for the keys. She may have kicked him. Defendant punched her in the face with a closed fist, leaving a bruise on her chin. When Johnson got home, she called the police.FN2

FN2 Defendant was convicted of corporal injury to a cohabitating person (§ 273.5), a misdemeanor, based on this incident and was on probation for it at the time of trial. The court admitted evidence of this conduct as part of the prosecutor's case-in-chief in relation to count 5. The parties stipulated to the fact of conviction.

On October 20, 2005, at about 4:00 a.m., defendant was at Johnson's residence. Johnson saw that he was in the beginning stages of what she called "flipping out," where he would act paranoid, go through papers, and accuse her of being unfaithful. Johnson tried to leave the house, but defendant took her car keys to prevent her from leaving. Johnson left on foot and started walking down the street. Defendant followed after her. He grabbed her purse to get her checkbook. As defendant pulled on the purse, Johnson sprayed him with mace. She called the police, and the officers instructed defendant to go home and get some sleep. Defendant did not try to rest, so Johnson called the police again.FN3

FN3 Defendant was convicted of battery on a cohabitant (§ 243, subd.(e)(1)), a misdemeanor, based on this incident and was on probation for it at the time of trial. The court admitted evidence of this incident as part of the prosecutor's case-in-chief in relation to all charges after it determined the incident followed a pattern very similar to the charged offense.

After this latest incident, a police officer told Johnson that he would call child protective services to have her children removed from the home if she did not obtain a restraining order against defendant. She obtained the order, which directed defendant not to have any contact with Johnson or her children, and to stay at lease [sic] 100 yards away from them. The order was still in effect as of January 2006. However, defendant and Johnson were together often. They were seeing each other on a daily basis from mid-December through the first week of January 2006. Defendant occasionally stayed at Johnson's house. He continued to contribute financially to the household. Defendant even loaned Johnson money to purchase Christmas presents for the children. Johnson would deposit his money into her checking account, and she would give him money from that account whenever he asked for it.

Defendant asked Johnson to drop the restraining order. She did not because she was concerned that he would "flip out" again. She wanted to be sure defendant took his medications and enrolled in anger management and counseling programs.

A few days before January 7, 2006, defendant disappeared with Johnson's car for a few hours. That was how incidents had begun in the past, with defendant disappearing and staying out of contact for a few hours.

B. Charged Offense

On January 7, 2006, at about 5:00 p.m., defendant went to Johnson's house and asked Johnson to repay him some of the money he gave her for Christmas presents because he was broke and could not buy food. Johnson told defendant she did not have any money to give him. Defendant became angry and accused Johnson of using him. Fearing a confrontation, Johnson took her nine-year-old daughter, Catherine, to work with her that evening at a hospital where she had a work order to repair a copy machine and was allowed to work late at night.

During the evening, defendant called Johnson about 10 times on her cell phone, but she did not answer. Defendant left voice messages accusing her of using him, taking all his money, and leaving him. He accused her of having a boyfriend, and he threatened suicide. He said he would die before he would go to jail and threatened to jump off a bridge.

Johnson and Catherine arrived home at around 11:30 p.m. Johnson did not know if defendant was still in the house, but Catherine saw defendant asleep on the couch and later told her mother. Johnson took her purse and Catherine to bed with her in case they had to leave the house quickly. She also had three cell phones with her: a work phone on her hip, a personal phone in her purse, and another personal phone she had placed in Catherine's pocket. The account to the two personal cell phones was in Johnson's name, and the money defendant put into Johnson's checking account helped pay for the personal cell phones. Johnson primarily used the phone in her purse, and defendant primarily used the one in Catherine's pocket. Johnson had taken the phones to bed a few times before for safety reasons when she and defendant had problems.

At about 2:30 a.m., defendant came into Johnson's room and turned on the light. He was angry and accused Johnson of being at someone's house that evening because she had not answered her cell phone. He demanded to see Johnson's cell phones to see what numbers she had called. Johnson gave him her work phone she had on her hip but refused to give him her personal cell phone. Defendant grabbed at Johnson's purse and, in the ensuing struggle, pulled Johnson off the bed and onto the floor. Defendant got the purse away from Johnson and took out the cell phone and Johnson's checkbook. He checked the numbers on the phone and asked to see the third phone, which, unbeknown to him, was in Catherine's pocket. Johnson told him it was out in her car.

Defendant went out to Johnson's car to search for the third cell phone. He came back into the house and called the third phone. He heard it ring in Catherine's pocket. He grabbed Catherine by the arms, threw her onto the couch, and tried to get the phone out of her pocket. Johnson then began pulling on defendant, and defendant turned and punched her in the chest. Returning his attention to Catherine, defendant got the phone from her, and he checked it to see what numbers had been called. He somehow had also obtained a set of keys belonging to Johnson. Catherine tried to leave the house and go for help, but when defendant ordered her to go to her room, she complied.

Johnson was screaming. Defendant put his hand over her mouth and repeatedly told her to be quiet. He also said he could not go back to jail and he would kill her. He said, "I can't go back to jail. Please don't call them. If they take me back, they'll have to put me in for murder . . . ." Catherine heard him say he would kill Johnson if she put him in jail.

Johnson opened the front door at one point, but defendant closed it and said he wanted to talk. Defendant took her shoes so that she could not leave. He said several times that he would give her everything back if she promised not to call the police.

Because she was frightened and wanted defendant to leave, Johnson promised not to call the police. Eventually defendant calmed down. He gave back the three phones and the checkbook and then he left. As soon as he left the yard, Johnson took Catherine out and they sat in her company car. That car was equipped with a panic button that sounded the horn and flashed the lights. When defendant appeared at the driver's side window, Johnson immediately hit the panic button. She also called 911.

Johnson later found her set of keys on the ground near the driver's side of her car. (Lodged Doc. 5 at 3-9).

Petitioner was charged with (1) first degree robbery, CAL. PENAL § 212.5(a); (2) first degree residential burglary, CAL. PENAL § 459; (3) making criminal threats, CAL. PENAL § 422; (4) false imprisonment by violence, CAL. PENAL § 236/237; (5) misdemeanor battery on a noncohabitating spouse, CAL. PENAL § 243(e)(1); and (6) misdemeanor violation of a restraining order, CAL. PENAL § 273.6(a). Following a jury trial, Petitioner was found guilty on all charges except for first degree residential burglary. Petitioner was sentenced to four years imprisonment on the first degree robbery charge, and concurrent terms of two years each on the charges for making criminal threats and ...

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