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Salvador Garcia v. Frank X. Chavez

June 1, 2011

SALVADOR GARCIA, PETITIONER,
v.
FRANK X. CHAVEZ, RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was sentenced to thirty-six months imprisonment following a plea of no contest to vehicle theft, providing false information to a peace officer and obstructing an officer in the discharge of his duties. Petitioner raises one claim in his federal habeas petition; specifically whether there was sufficient evidence for the state court's finding of a strike prior for a 1997 conviction. For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

[O]n September 14, 2008, at approximately 0224 hours, officers were dispatched to 24th Street and Teekay Way regarding the theft of an S.P.D. bait vehicle. The vehicle was described as a white 1992 Honda Accord and was traveling northbound on 24th Street. Officers responded to the dispatched area and located the vehicle traveling on Meadowview from 24th Street. Officers observed one occupant in the vehicle, later to be identified as the defendant. Once behind the vehicle, officers advised dispatch to lock the doors and to kill the engine. The vehicle went southbound on Franklin Road and came to rest at Valley Hi Drive. The defendant was admonished by officers to step out of the vehicle and place his hands and face away from the officers. As the defendant turned to face away from the officers, he fled on foot eastbound on Valley Hi Drive. Officers gave chase and the defendant was taken into custody on the side yard of a residence on Valley Hi Drive.

While taking the defendant into custody, two of the officers sustained injuries. Officer Rinehart sustained scratches to his forehead, right arm and right leg falling into a rosebush while taking the defendant into custody. Officer Hensley suffered injuries to his right hand and left hand.

During an interview with the defendant, he initially gave officers a false name, his brother. The defendant was transported to the Sacramento County Main Jail and was fingerprinted. The fingerprints revealed the defendant's real identity.

(Clerk's Tr. at p. 69-70.)

III. PROCEDURAL HISTORY

[Petitioner] entered a plea of no contest to vehicle theft ([Cal.] Veh. Code, § 10851, subd. (A) -- count one) providing false information to an officer, a misdemeanor ([Cal.] Pen. Code, § 148.9, subd. (A) -- count two); and obstructing an officer in the discharge of his duties, a misdemeanor ([Cal.] Pen. Code, § 148, subd. (a)(1) -- count three). Defendant entered his plea with the understanding that if the court found a strike prior allegation ([Cal.] Pen. Code, §§ 667, subds. (b) - (I), 1170.12; all further statutory references are to the Penal Code) to be true, that is qualified as a strike prior, the sentence would be an aggregate term of 32 months in state prison, but if the court found the strike prior allegation not to be true, then the matter would be referred to probation.

The [trial court] found that defendant's 1997 conviction for exhibiting a firearm while in an occupied vehicle (§ 417.3) qualified as a strike prior in that defendant personally used a firearm. [FN 1] The [trial] court denied defendant's motion to strike the strike prior and sentenced defendant to state prison for an aggregate term of 32 months. [FN 1] Section 417.3 provides, in relevant part, as follows: "Every person who, except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a felony.

(Resp't's Lodged Doc. 4 at p. 1-2.)*fn2

Petitioner appealed to the California Court of Appeal and raised the issue he raises in his federal habeas petition. That court denied Petitioner's claim in a detailed opinion on May 17, 2010. Petitioner's petition for review to the California Supreme Court was summarily denied on July 21, 2010.

Petitioner filed the instant federal habeas petition on August 11, 2010. Respondent answered the ...


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