The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2006 conviction on charges of robbery, assault likely to cause great bodily injury, assault with a firearm, making criminal threats, burglary, grand theft, grand theft of a vehicle, and false imprisonment. (Resp't's Lodged Document ("LD") 3 at 1.) On December 18, 2006, petitioner was sentenced to 20 years, 8 months, in state prison. Two claims are now submitted for decision:*fn1 petitioner claims that the trial court (1) erred in admitting petitioner's confession because it was allegedly coerced; and (2) petitioner's upper-term sentences allegedly violate the Sixth Amendment, citing Cunningham v. California, 549 U.S. 270 (2007).*fn2 After careful review of the record, this court concludes that the petition should be denied.
After jury trial, petitioner was convicted on November 16, 2006. Petitioner was sentenced on December 18, 2006. (LD 1 at 3.)
Petitioner appealed to the California Court of Appeal, Third Appellate District, and on August 6, 2008, the judgment was affirmed. (LD 1, 3.) Petitioner filed a petition for review in the California Supreme Court, which was denied without comment on October 22, 2008. (LD 4, 5.)
No collateral petitions were filed in state court.
Under the mailbox rule, petitioner filed the instant petition on August 30, 2009. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities).
III. Factual and Procedural Background*fn3
The opinion of the California Court of Appeal contains a factual and procedural background concerning petitioner's offenses and the offenses of his co-defendant, Johnny Lavender. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein:
Following the robbery and beating of Tracy Norton, an amended consolidated information charged [Lavender and Foster] with attempted murder (count I), robbery (count II), assault likely to cause great bodily injury (count III), assault with a firearm (count IV), making criminal threats (count V), burglary (count VI), grand theft (count VII), grand theft of a vehicle (count VIII), and false imprisonment (count IX). The information also alleged as to counts I, II, and VI that [Lavender and Foster] personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). In addition, as to counts V, VII, VIII, and IX, it was alleged [Lavender and Foster] personally used a firearm in the commission of the offenses pursuant to sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a)(1), causing them to be serious and violent felonies (§§ 1192.7, subd. (c)(8) and 667.5, subd. (c)(8)).
A jury trial followed. The following evidence was introduced at trial.
Around midnight one spring evening in 2007, Lavender and Foster arrived at the apartment of Caitlin Churchill and Chris Scarabello to finalize preparations to rob Tracy Norton. Scarabello found Norton's address and downloaded aerial photos of his property from the Internet. Scarabello also gathered together a silver handgun, a black handgun, a Taser, a bulletproof vest, and duct tape. Churchill drove the men to Norton's residence and waited while the men entered the house.
Early that morning, Norton woke up to find three men standing nearby, pointing guns at his face. Two of the men were black; one was white. The white man, dressed in full camouflage, wore a mask and held a pistol and knife. The two black men wore dark clothes and masks tied around their faces, obscuring them. One of the black men was about six feet tall and slender, and carried a pistol. The other was about five feet eight inches tall, stocky, and carried a revolver.
The men dragged Norton from his bed, kicked and punched him, and handcuffed his hands behind his back. Norton struggled to escape and reach the gun he kept on his headboard, but the men subdued him and he noticed the gun was gone. The taller black man had two guns.
The men continued to beat Norton. They dragged him, naked, into the living room and bound his knees and ankles together with duct tape.
The white male and the taller black male searched the house; the shorter black male guarded Norton. The man pointed a gun at Norton's head and said he was going to kill him because he had tried to escape. After searching the house, the men used the Taser on Norton's side and back until he gave them the combination to his office safe.
The intruders put Norton up against a pillar in his living room and duct-taped him to it. The taller black man brought in a gas can, doused Norton with gasoline, and flicked a lighter on and off. The man told Norton if he could get out, he could live. The shorter black male used the Taser on Norton's side and near his crotch.
The men ultimately got into Norton's truck and drove away. They took Norton's guns, marijuana plants that he testified he had for medical purposes, a small off-road vehicle, and a trailer attached to the truck.
The waiting Churchill received a text message on her cell phone from Lavender, telling her they were almost finished. Shortly after, Churchill saw the three men driving down the road in Norton's truck. Scarabello called Churchill on her cell phone and asked if they could stash the stolen goods on her mother's property. She refused, and instead the men decided to take the property to Sheyne Stevenson's house. Stevenson was a friend of Lavender and Scarabello.
At Stevenson's house, Scarabello backed Norton's truck and trailer up to the garage. Churchill looked inside the trailer and saw marijuana plants, growing equipment, an off-road vehicle, and guns.
Tehama County Sheriff's Deputy Cindie Sharp responded to a 911 call from Norton; she found him upset and injured. Norton had abrasions and bruising on his face, side, arms, back, and chest. His eye and lips were swollen and bruised. Norton suffered scratches on his back and chest, and a laceration and red marks on his wrists. Sharp smelled gasoline in the house, which had been ransacked. Sharp found duct tape, handcuffs, and a handcuff key in the house.
A day or so later, Scarabello, Lavender, and Foster returned to Stevenson's house. They smoked marijuana and talked about the incident. Lavender told Stevenson that the trio had staked out Norton's house all night before entering the next morning. Scarabello woke up Norton, and Lavender took the gun from Norton's nightstand. Someone bound Norton with duct tape, and Foster shot him with a Taser. The men handcuffed Norton, poured gasoline on him, and eventually left with the truck, trailer, and marijuana. Foster admitted to Stevenson that he shot Norton with the Taser.
A day or two after hearing the full story of what had happened, Stevenson asked Scarabello to remove the stolen goods from his garage. Scarabello, Lavender, and Lavender's brother removed the items. Stevenson took a picture of Lavender, Lavender's brother, and the stolen marijuana with his cell phone camera.
A few days after the robbery, officers executed a search warrant at Stevenson's house. Although initially Stevenson denied knowing details about the robbery, he later admitted he had lied. Stevenson provided the names of everyone involved and gave an account of the robbery.
After his arrest, Foster voluntarily spoke with detectives. He gave a detailed confession of the robbery and beating of Norton. Defense Case
Patricia Pilkington, who lived with defendant Lavender, testified she was with him the night of the robbery. She would have known if he had left during the night. Lavender was there the next morning and stayed with her children while she went to a doctor's appointment from 8:45 a.m. to 10:30 a.m.
Sabrina Wilson testified she saw Lavender at his apartment the night of the robbery. He was still there when she left around 12:30 a.m. Lavender was there the next morning when Wilson picked up Pilkington for her doctor's appointment and was there when they returned around 10:30 a.m.
Lavender's brother testified that the day of the robbery, he and Lavender went to Stevenson's house to see some marijuana they had heard about. Two black men were there with Scarabello and Stevenson. Lavender's brother took a picture of the marijuana with his cell phone camera.
Two women testified they went to a concert with Lavender the day after the robbery. They were with him until about 2:00 o'clock the next morning.
Gabriel Paoli testified he played basketball with defendant Foster on the evening before the robbery. They began playing around 5:30 p.m. and played for three-and-a-half hours. After the game, they went to a friend's house for a couple of hours.
A detective was recalled as a defense witness. The detective testified that after his confession, Foster provided the clothing he wore the night of the robbery: a ...