FINDINGS AND RECOMMENDATIONS
Petitioner Ramiro Montanez, a state prisoner, proceeds through counsel with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate prison term of nineteen years and four months for convictions sustained in the San Joaquin County Superior Court, case number SF092448A.
The following statement of facts was taken from the unpublished opinion of the California Court of Appeal, Third District; petitioner is the defendant referred to therein. Since these facts have not been rebutted with clear and convincing evidence they are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).
At 1:52 a.m. on July 7, 2004, the Stockton Police Department received a 911 emergency call from [defendant's girlfriend, Elida] Mejia. She told the operator that she and her daughter were in her car while defendant was shooting bullets into the car. As Mejia was talking to the operator, she said defendant was still shooting, and was getting in his black Cadillac Escalade. She then said he had turned around and was trying to escape. Mejia started following defendant, indicating she did not want him to escape because she wanted to press charges. Mejia and her daughter could both be heard crying, and Mejia told the operator she was shaking. Mejia told the operator she and defendant had been in an argument. He was kicking her, so she started hitting him, at which point he pulled out a gun. She told the operator they were arguing because he was with another woman.
Officer Anthony Perry responded to Mejia's call. He found Mejia and her daughter standing outside Mejia's vehicle. Both were crying. There were two bullet holes on the passenger side of Mejia's vehicle, behind the passenger door. Mejia told Perry that defendant shot at her car three times while she and her daughter were in it. Mejia told Perry she wanted an emergency restraining order against defendant, which Perry obtained for her.
Officer Christopher Friedmann interviewed Mejia the morning of the incident for a little over an hour. She told him she had gone to a bar with her daughter because she received a call that defendant was there. Defendant was with another woman. Defendant and Mejia went outside and were arguing. At some point, Mejia slapped defendant in the face, and he kicked her several times. She hit the hood of his car, then went back to her car, got into it, and shifted it into gear. Defendant went to his Escalade, then walked up to her car with a gun in his hand. He pointed the gun at the car and fired three times. Two shots hit the passenger side of Mejia's car. She drove around the block, and when she drove by the bar again, defendant began shooting again. She called the police, then followed defendant as he drove away.
At the preliminary hearing, Mejia's testimony was consistent with her 911 call and the story she gave the officers. However, her testimony at trial was significantly different. At trial, Mejia again testified that after she and defendant went outside the bar they were arguing and she hit his car. After that, she went back to her car and stood by it, but did not get into it. She saw defendant shoot into the car, but she was not in it. Her daughter was not inside the car either, because she had taken her out to take her inside the bar and show the girl her new "mommy." After defendant shot into her car she and her daughter got into the car and drove away. She made a U-turn to go back, and she saw him shoot once, but could not tell if he was shooting into the air or at her. She went around the block and saw another muzzle flash. She watched him and saw two more muzzle flashes, at which point she called 911. She then proceeded to follow him. [At the preliminary hearing, Mejia testified she] told the responding officer that she wanted an emergency protective order not because she was afraid of defendant, but because she "was just trying to be a bitch." She told the officers what they wanted to hear because she was mad at defendant.
Officers Joseph Aguilar and Wesley Grinder, who stopped defendant after Mejia's 911 call, searched defendant's Escalade. In the car they found a .380 caliber gun with two bullets in it, three baggies of crystal methamphetamine weighing a total of 40 grams, a cell phone, nine small Ziploc baggies in one location and 18 in another, a digital scale with white residue on it, and approximately $22,700 in cash. When the officers went back to their police car, they found defendant had spit all over the front compartment of the vehicle.
At the police station, defendant was placed in an interview room and strip searched. His clothing was searched more closely, and another $822.00 was found in his pockets and wallet, as well as a 9 millimeter Luger bullet in his pocket. During the search, defendant placed his hands on top of his head and urinated on the carpet in the interview room while he said, "oh, fuck, this is cool." Defendant testified on his own behalf. He said none of the money in the sock came from drug sales. He said the money in the sock was money he had collected to buy a taco truck. Nine thousand dollars was from his own pocket, his sister had given him $5,000, and his dad's girlfriend gave him $10,000. He was buying the truck from a man named Gustavo. He did not know Gustavo's last name. He went to Gustavo's the afternoon before the incident, but Gustavo was not there. Defendant admitted some of the money in his pocket came from drug sales.
Defendant said he was in the bar when Mejia came in upset and yelling. Mejia grabbed him and dragged him outside. They argued and she slapped and kicked him. She started hitting the Escalade. Defendant heard Mejia's daughter crying in the car. He went to the car to calm the girl. Defendant tried to push Mejia into her car, but she was kicking him. She then grabbed a gun from under the seat. He backed off. Mejia went to get her daughter out of the car and put the gun down. Defendant took the gun, and Mejia started chasing him.
Defendant was on one side of the car and Mejia was on the other side. She opened the door for her daughter and pulled her out. Mejia reached into the car and grabbed what defendant thought was a knife. When defendant told a friend not to let them in the bar, Mejia turned around and swung at defendant with what defendant thought was the knife in her hand. Defendant took "my gun" from out of his waist band and shot at the back window of the car. The window did not break, so defendant shot again and hit the glass with the gun at the same time. Defendant told Mejia, "I ain't playing neither," and "[y]ou better get your ass home now."
Mejia and her daughter jumped in the car and left. Mejia made a U-turn and came back. Defendant shot the gun into the air. Mejia came back again, and he shot into the air again twice.
Defendant claimed the drugs found in his car were given to him at the bar by a man named Francisco Hernandez. He was not aware he had a bullet in his pocket. He had purchased the pants from Goodwill, and the bullet may have been there when he bought them. He admitted spitting on the patrol car. He did it because he was mad that the officers were taking his money. He also admitted urinating in the interview room. He told the officers he needed to use the restroom, but they would not let him.
Defendant's sister, Lourdes Jaurigue, was a college student, but she withdrew from school the summer her brother got arrested. She gave her brother $5,000 of the financial aid money she received from the college so he could by a taco truck.
Frederico Tafoya testified he had known defendant since middle school. On the night of the incident, he was at the same bar as defendant. Defendant was with a woman they knew from high school. At some point, Mejia came in the bar and was screaming and yelling. She was escorted outside. Tafoya looked out the door and saw Mejia taking her daughter out of the car and pulling her, telling her she was going to show her who her mommy was. Tafoya saw Mejia with a knife, "or something like that", and saw her chasing defendant around. Tafoya heard gunshots, but never saw defendant with a weapon.
People v. Montanez, No. L 142842, 2008 WL 142842 at 1-3 (Cal. App. 3 Dist., 2008).
Based on the foregoing, the jury acquitted petitioner of several charged offenses including two counts of attempted murder and one count of shooting into an occupied vehicle. The jury convicted petitioner of eight offenses, including assault with a firearm (as to Mejia); shooting at an unoccupied vehicle; child endangerment; possession for sale of methamphetamine; transportation/sale of methamphetamine; possession of a controlled substance with a loaded, operable firearm; carrying a concealed firearm; and being a felon in possession of a firearm. An aggregate sentence of nineteen years and four months was imposed.
On direct review, the California Court of Appeal, Third District, affirmed the judgment and sentence. A petition for review to the California Supreme Court was denied. Petitioner sought habeas corpus relief in the state courts which was likewise denied.
Respondent agrees that petitioner's grounds for relief were properly exhausted in state court and timely presented here. Respondent contends, however, that grounds one and two were procedurally defaulted in state court and therefore barred in this court.
Ground One: The jury was erroneously permitted to consider the brief testimony of Mejia's daughter, who was not cross-examined, in violation of due process;
Ground Two: The court erroneously instructed on the elements of child endangerment, allowing the prosecution to obtain a conviction without proving every element of the offense beyond a reasonable doubt;
Ground Three: Trial counsel rendered ineffective assistance in failing to object at trial on the basis of grounds one and two, above, in order to properly preserve the issues for appeal;
Ground Four: Insufficient evidence supports the child endangerment conviction; and Ground Five: The jury was erroneously instructed on assault with a firearm under a negligence standard, in violation of due process.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360 (2002).
A. Grounds One and Two: Mejia's Daughter's Testimony and the Child Endangerment Instruction
1. Factual Basis for Ground One: Mejia's Daughter's Testimony At trial, the prosecution called Mejia's seven year old daughter to the witness stand. In the jury's presence, the judge asked her questions to establish competence and that she understood the difference between telling the truth and telling a lie. (Reporter's Transcript of Proceedings ("RT") at 288-90.) After she was sworn in, the prosecutor began direct examination but asked only a few preliminary questions before the girl apparently began to cry. Defense counsel interjected: "Excuse me, your Honor. I think we need to take a break, she's beginning to cry." (RT at 291.) The court sent the girl out into the hall to be with her mom for a few minutes and then recessed for an early lunch. (RT at 291.) She was never recalled to the stand. Neither party objected, requested that her testimony be stricken, or requested that the jury be given any particular instructions on the issue. Petitioner claims that his rights under the Due Process Clause and Confrontation Clause were violated when the jury was permitted to consider the girl's testimony without the defense cross-examining her.
2. Factual Basis for Ground Two: Child Endangerment Instruction Petitioner was charged with a felony violation of California Penal Code section 273a(a), which proscribes child endangerment. Petitioner claims that the trial court erroneously instructed on this count, omitting the element that the child endangerment occurred while he had "care and custody" of the child. Defense counsel did not object to the instruction that was given. Petitioner claims that the trial court's ...