The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, proceeding with counsel has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of five years plus life imprisonment with the possibility of parole after being convicted by a jury of kidnapping for extortion, assault with a deadly weapon or instrument other than a firearm by means of force likely to produce great bodily injury, false imprisonment, assault with a stun gun or taser, making criminal threats and possession of methamphetamine for sale. Petitioner raises one claim in his federal habeas petition; specifically whether the trial court erred in failing to instruct the jury on simple kidnap, a lesser included offense of kidnap for extortion. For the following reasons, the habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
Prosecution's Case Christopher Luthin testified that after he was released from jail in March 2005, he rented a room from defendant in the latter's home in Brentwood, but moved out a month and a half later at defendant's request. In November, Luthin was living part time in his van parked behind the home of a friend in Tracy.
Just before dawn on November 20, 2005, Luthin was awakened by defendant entering his van, pointing what appeared to be a pistol at him, and telling him that he was "under arrest" for having burglarized defendant's home in September. Luthin agreed to go to the police station with defendant and left the van with him. When they reached the front gate, Luthin became fearful that defendant was not intending to take him to the police station and fled. As Luthin ran he was struck by a taser dart and fell. Luthin and defendant struggled, with defendant trying to put duct tape on Luthin's face and to use zip ties to bind his arms. During the struggle, defendant repeatedly shocked Luthin with the taser. Defendant finally subdued Luthin and bound his wrists and ankles with zip ties. Whenever Luthin called for help, defendant would kick him saying, "We could do this the hard way or we could this the easy way." Defendant forced Luthin into defendant's pickup and drove to defendant's house, which took about 45 minutes, and parked in the garage. When Luthin asked why they weren't going to the police station, defendant told him that the station didn't open until 10:00 a.m. and that he had to get some paperwork. Noticing it was now 8:10 a.m., Luthin responded that defendant could get the paperwork later and he knew the police station didn't close. Luthin escaped the pickup, but could not escape from the garage because the door was closed. Defendant knocked Luthin down, beat him "pretty severely," and then tied him to the passenger wheel of the pickup. Over the next few hours, defendant placed a towel over Luthin's head; put a bag next to Luthin's ear and told him there were rattlesnakes in it, which Luthin claimed he could hear rattling; put a rubber ball in Luthin's mouth to keep him from calling out; poured ether over the towel; threatened to kill Luthin and bury him in a trench where no one would ever find him. Defendant started smoking methamphetamine and told Luthin, "I'm going to have to kill you . . . unless you give me your Corvette." When Luthin agreed to do so, defendant freed him and the two drank beer and smoked methamphetamine "to seal the deal." Defendant drove Luthin back to Tracy and dropped him off near his trailer, telling him that he would call in a week about picking up the Corvette.
Luthin immediately called the police and Deputy Dexter Cho responded, arriving at Luthin's van about 12:30 p.m. Cho described Luthin as having bruises and scratches on his face and arms; his right eye was "bruised pretty good" he had ligature marks between his wrists and forearms; and tape residue on his face, around his mouth. Detectives searched the area where Luthin claimed he struggled with defendant and found evidence of a taser having been used, pieces of duct tape, and a bundle of zip ties. The next day, while the detectives were again searching the area of the struggle, Luthin told Detective James Bojko that he had received a call from defendant and that defendant was coming to pick up the Corvette in a couple of hours. Defendant arrived driving a pickup with a flatbed trailer attached and was arrested. Inside defendant's residence detectives found methamphetamine totaling 30.2 grams. A zip gun and additional tasers were found in the pickup.
Defense Case Defendant testified that after Luthin moved in with him, the police came to the house looking for Luthin and he warned Luthin that he didn't want the police coming by. A few weeks later, defendant read in a newspaper that a shotgun had been found in some shrubs in front of defendant's home near where Luthin frequently parked his van. Defendant told Luthin he had to move out, which Luthin did.
In September 2005, defendant's house was burglarized and several items stolen. Defendant's investigation led him to believe that Luthin was the culprit. Although defendant reported the burglary to the police, he did not believe they were acting quickly enough. Defendant found out where Luthin was living, drove there and looked in Luthin's van to see if any of defendant's property was there. Defendant saw his Sony laptop computer, retrieved it, and returned home to read up on how to effect a citizen's arrest.
In the early morning hours of November 20, 2005, defendant went to Luthin's van to make a citizen's arrest, taking with him duct tape, a taser, and zip ties to accomplish the task. Defendant entered the van and informed Luthin that he was making a citizen's arrest for the September burglary and not to do anything stupid. When defendant and Luthin got to defendant's pickup, Luthin took off running. Defendant shot Luthin with the taser, but was unable to shock him because only one prong hit him. Defendant tackled Luthin and the two exchanged punches, with defendant managing to get zip ties on Luthin's hands and walk him to defendant's pickup.
Although defendant intended to take Luthin to the police station, he first drove home to get the computer and the paperwork concerning the burglary. Once in defendant's garage, Luthin again attempted to escape, causing another fight and defendant's tying Luthin to the wheels of his pickup.
Defendant told Luthin he was going to go to jail and Luthin began crying and apologized for what he had done. Luthin begged defendant not to take him to jail and admitted he still had some of defendant's property in storage. Luthin offered to returned the property and give defendant his Corvette if defendant would just let him go. Defendant figured accepting the Corvette "was better than nothing." Defendant agreed to the deal, cut Luthin loose, and they smoked some of defendant's methamphetamine.
After defendant drove Luthin back to Tracy, Luthin said that he would get a trailer and deliver the Corvette as well as the rest of defendant's property to him. When Luthin failed to do so, defendant obtained a trailer and drove to where ...