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Joseph Becker v. M. Martel

April 29, 2011

JOSEPH BECKER,
PETITIONER,
v.
M. MARTEL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Joseph Becker (hereinafter "Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 22, 2010, Respondent filed an answer. Petitioner filed a traverse on November 11, 2010. This Court has reviewed the petition for writ of habeas corpus, Respondent's answer, Petitioner's traverse, and all supporting documents. After a thorough review, this Court GRANTS IN PART AND DENIES IN PART the petition for writ of habeas corpus.

Procedural Background

A. Conviction and Sentence

On October 21, 2004, Petitioner was arraigned on a forty-one count complaint. (1 CT 41-57; Pet., Ex. 2.) On December 21, 2004, Petitioner was arraigned on an amended fifty-three count complaint after the district attorney added eleven counts of attempting to prevent and dissuade a witness from testifying and one count of making a criminal threat. (1 CT 21-40; Pet., Ex. 3.) On March 9, 2005, Petitioner was arraigned on a forty-eight count information. (1 CT 41-57; Pet., Ex. 4.) The information mostly set forth the allegations in the amended complaint and also included an added charge of stalking. (1 CT at 44.) After a hung jury at the first trial, on July 27, 2006, Petitioner was arraigned on an amended forty-eight count information that differed from the original information in several minor ways. (1 CT 58-73; Pet., Ex. 5; Resp't Mem. of P & A at 11.)

On August 23, 2006, Petitioner was convicted of four counts of attempting to make a criminal threat in violation of California Penal Code ("Penal Code") sections 422/664; fifteen counts of making a false report of a bomb to an agency or business in violation of Penal Code section 148.1(a); fifteen counts of making a criminal threat in violation of Penal Code section 422; seven counts of attempting to prevent and dissuade a witness in violation of Penal Code section 136.1(a)(2); and one count of stalking in violation of Penal Code section 646.9(a). (4 CT 911-15; 5 CT 1098-1104) Petitioner admitted he served two prior prison terms. (5 CT 1098-1104.) On October 6, 2006, Petitioner was sentenced to 20 years and 4 months in prison. (5 CT 1104.)

B. Direct Appeal

Petitioner filed a direct appeal with the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment 1-3.) On October 23, 2008, the Court of Appeal affirmed the conviction but remanded the matter for re-sentencing after concluding that the trial court abused its discretion in denying Petitioner's request for reinstatement of counsel at the new trial/sentencing hearing. (Lodgment 4.) Petitioner filed a petition for review in the California Supreme Court. (Lodgment 5.) That petition was denied on February 11, 2009. (Pet., Ex. 7.) On July 10, 2009 and again on January 27, 2010, the trial court resentenced Petitioner to 20 years and 4 months in prison. (Lodgment 6, 7.)

Petitioner appealed again to the Court of Appeal. However, on September 20, 2010, he filed a notice of abandonment of his appeal. (Lodgment 8.) That same day, the appeal was dismissed and the remittitur issued. (Id.)

C. Instant Federal Petition for Writ of Habeas Corpus

Petitioner filed the instant federal petition on May 11, 2010 challenging his conviction. On October 22, 2010, Respondent filed an answer. Petitioner filed a traverse on November 22, 2010. On December 13, 2010, the parties consented to jurisdiction by United States Magistrate Judge Anthony J. Battaglia. Subsequently, then Magistrate Judge Battaglia was elevated to a district judge. On March 11, 2011, District Judge Anthony J. Battaglia was added as the district judge on the case. On March 25, 2011, the Court issued an order directing Respondent to provide additional information about the possible maximum penalties Petitioner would have faced at the December 21, 2004 arraignment on the amended complaint; at the March 9, 2005 arraignment on the information; and at the July 27, 2006 arraignment on the amended information. (Dkt. No. 18.) On April 6, 2011, Respondent filed a response.

Factual Background

The following factual background is taken from the Court of Appeal opinion in People v. Becker, unpublished opinion (Cal. Ct. App., 4th Dist., Div. 1, Oct. 23, 2008). The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1).

The charges in this case arose after Becker shoplifted merchandise from the Sam Goody Musicland (Sam Goody) store at University Towne Center mall on January 16, 2004, and the Target store on Balboa Avenue on February 29, 2004. Based on this conduct, Becker was charged with petty theft with a prior and burglary (the shoplifting case). He elected to represent himself in the shoplifting case, and was given phone privileges in jail to facilitate his self-representation. In July and August 2004, while Becker was in jail waiting to be tried in the shoplifting case, numerous threatening phone calls were received by entities or persons associated with the shoplifting case. In October 2004, charges were filed against Becker based on this threatening conduct (the threats case). In November 2004, after the initial charges were filed in the threats case, witnesses involved in the threats case were targeted for additional threatening or intimidating conduct. In December 2004, the charges in the threats case were amended to add allegations against Becker based on this conduct occurring in November 2004. Further, in March 2005 the charges were amended to add a stalking charge based on Becker's conduct of repeatedly contacting a particular witness. The threats case is currently before us for review.

At trial, a primary issue in dispute was the identity of the person who made the threatening phone calls. According to the prosecutor, most of the witnesses were not in a position to identify Becker as the person who made the threatening phone calls by listening to his voice, and except for one witness, the prosecutor did not offer witness testimony tying the caller's voice to Becker's voice. Instead, the prosecutor presented evidence showing that Becker had access to jail phones used to call victims' phone numbers during relevant time periods; Becker had a motive to target the entities or persons who received the calls; and Becker made statements to the police showing consciousness of guilt.

Two jury trials were held to adjudicate the threats case. [Becker] represented himself at both trials. The first trial acquitted Becker of one criminal threat charge, and was unable to reach a verdict on the remaining charges. The second jury convicted Becker on most of the charges.*fn1 Becker's sentence for the threats case was combined with his sentence for the shoplifting case; he received a total of 20 years, four months for both cases.

We shall briefly summarize the facts, and present more facts as necessary during our discussion of Becker's various challenges to the judgment.

Threats to "Shoot Up" the Sam Goody Store On July 20, 2004, approximately seven months after the theft at Sam Goody, Becker made two phone calls to the University Towne Center mall making threatening statements directed at the Sam Goody store. The first call was received by Joaquin Barrera, the security supervisor for the mall. Becker stated he was going to "shoot up" the Sam Goody store and that he had problems with his daughter buying drugs from a Sam Goody's manager named Erich. Using the caller ID feature on the security office phone, the authorities ascertained that the call had been made from the county jail. Barrera reviewed his logs and determined that Becker was the only person whom he had arrested at the Sam Goody store that year. Barrera, who had detained Becker during the Sam Goody shoplifting incident in January 2004, recognized the caller's voice as Becker's. Sam Goody's manager, Erich Mroz, had caught Becker shoplifting and had testified against him at his May 2004 preliminary hearing in the shoplifting case. The second call on July 20 was made to the Red Robin restaurant in the mall. In this call, Becker stated that something bad was going to happen at the Sam Goody store and warned that some of the restaurant employees might get hurt if they came to work.

On July 28, 2004, Becker again called the Red Robin restaurant; in this call he stated that Sam Goody's manager, Erich, and his employees, were dealing drugs at the restaurant. Becker also called the mall's security office and stated that he and a friend were about to go to the Sam Goody store to "shoot it up" and that Sam Goody's manager Erich was selling drugs. The caller ID feature on the security office phone showed the call came from the same jail phone number as the July 20 call received by Barrera.

Sam Goody manager Mroz was informed about the threatening calls, but he perceived them as "ridiculous" and not as legitimate threats.

For this conduct, Becker was convicted of three counts of attempted criminal threat with Mroz as the victim (i.e., two counts occurring on July 20 and one count occurring on July 28).*fn2 False Bomb Reports Beginning on August 12, 2004, Becker made a series of phone calls to various businesses, stating there was a bomb or an explosive device in the building or parking lot. On August 12, 2004, he made false bomb report calls to the Target store on Balboa Avenue and to the San Diego County Public Defender's office (which had assisted him with complaints about his treatment at the jail). On August 13, 2004, he made false bomb report calls to the Sears store in the University Towne Center mall; to the Target store on Balboa Avenue; to six other Target stores at locations throughout San Diego county; and to a Mervyn's store (which was owned by the same company as Target). On August 20, 2004, Becker made two more false bomb report calls to the Target store on Balboa Avenue.

For this conduct, Becker was convicted of 15 counts of making a false bomb report, 14 counts of making a criminal threat, and one count of attempted criminal threat.

Attempts to Dissuade Witnesses from Testifying On November 4, 2004, after Becker was charged with making false bomb reports, he received discovery that disclosed the addresses, phone numbers, date of birth, and other personal information of witnesses who had provided information to the police about the false bomb reports. Becker copied the names, ages, addresses, and phone numbers of six female witnesses on two pieces of paper. On the top of one paper he wrote: "Here are some chicks' addresses from a chat line I got." On the top of the other paper he wrote: "All ...


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