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Kevin Dahlberg v. Gary Sandor

October 31, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1


Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of driving under the influence causing injury (Veh. Code § 23153, subd. (a); count 1) and driving under the influence, while having a blood alcohol content of .08 percent or higher, causing injury (Veh. Code § 23153, subd. (b); count 2). As to each count, the jury found true the allegations that Petitioner personally inflicted great bodily injury on Sergeant Kerry Kelly (Pen. Code § 12022.7, subd. (a)). In a bifurcated proceeding, the jury found true the allegations that, in the past 10 years, Petitioner had suffered two prior convictions for driving under the influence (Veh. Code § 23566). Petitioner was sentenced to a total term of six years in prison.

Petitioner filed a timely notice of appeal. The California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 4.) On December 9, 2010, the Court of Appeal denied a petition for rehearing. (LD 6.)

On December 28, 2010, Petitioner filed a petition for review in the California Supreme Court. (LD 7.) The petition was summarily denied March 2, 2011. (LD 8.)

Petitioner filed the instant petition for writ of habeas corpus on June 13, 2011.

Respondent filed an answer to the petition on September 20, 2011, and Petitioner filed a traverse on October 13, 2011.


On appeal, [Petitioner] contends: (1) the trial court erred in precluding him from arguing that Sergeant Kelly's conduct was a superseding cause of his own injuries; (2) the trial court made two erroneous evidentiary rulings that were cumulatively prejudicial with respect to his defense that he was not the driver of the van involved in the collision that injured Sergeant Kelly; (3) insufficient evidence supports the great bodily injury enhancement because there was no evidence [Petitioner] personally inflicted Sergeant Kelly's injuries; and (4) the Vehicle Code section 23566 enhancement must be reversed because the trial court did not properly identify [Petitioner] as the person who suffered the underlying prior convictions for driving under the influence, and the evidence of the prior convictions constituted inadmissible hearsay and violated the Sixth Amendment right to confront witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We affirm.


On April 19, 2008, beginning around 6:00 p.m., [Petitioner] visited several bars in Visalia and became intoxicated. He arrived at the Green Olive bar around 7:00 p.m. and ordered a shot of tequila and a bottle of beer. The bartender, Bobbi Cansler, took the drinks away from [Petitioner] before he had a chance to consume them after she saw he was already ver intoxicated.

Around 8:00 p.m., Cansler saw two of her customers, Daniel Hays and Lisa Silva, take [Petitioner] to the front door and try to give him some water. They then took [Petitioner] outside to sleep in his van and brought water out to him. Silva later came back to the bar and got a sandwich and a towel to take out to [Petitioner].

Hays and Silva both testified that when they saw [Petitioner] at the Green Olive bar he appeared very drunk. He was staggering around and slurring his words. Hays took [Petitioner's] keys from him and told him, "You're not driving." He also offered to drive [Petitioner] wherever he wanted to go.

While Silva was playing pool with her pool league, Hays played a game of pool with [Petitioner]. [Petitioner] was so drunk, Hays had to keep him from falling down numerous times. Afraid [Petitioner] was going to fall and crack his head open on the pool table, Hays told [Petitioner] he needed to go sleep in his van. Around 8:00 p.m., Hays took [Petitioner] to his van, and [Petitioner] went to sleep on the floor between the front seats. Hays went out to the van to check on [Petitioner] a few times and brought [Petitioner] a pitcher of water.

At approximately 10:00 p.m., Hays and Silva left the Green Olive bar to give [Petitioner] a ride home. Hays drove [Petitioner's] van with [Petitioner] in the passenger seat, while Silva followed in her car. [Petitioner] asked Hays to drive him to the Capri Motel, which was not far from the bar. Right before they reached the motel, [Petitioner] asked Hays to park his van in the parking lot of the Corner Cafe, where there was a security light and the van would be in plain view. The Corner Cafe was right next door to the Capri Motel.

After parking [Petitioner's] van, Hays took the keys out of the ignition and handed them to [Petitioner]. He assumed [Petitioner] was going to go to the motel and sleep like he said he was going to do. After taking [Petitioner] to the Corner Cafe parking lot, Hays and Silva drove back to the Green Olive bar because Silva had one more game left to play with her pool league. Silva testified that when they left [Petitioner], [Petitioner] was still seated in the passenger seat of his van.

Around 10:30 p.m., Kerry Kelly, a sergeant with the Tulare County Sheriff's Department, came across [Petitioner's] van, which was facing north and parked vertically across the westbound lane of Avenue 320, a rural two-lane road outside of Visalia. The van had no lights on and there were no street lights or other sources of light near the location.

Sergeant Kelly parked his patrol car on the shoulder of the eastbound lane and pointed his spotlight in a northern direction to light up the van and its license plate. Sergeant Kelly then got out of his car and approached the van on the passenger side. He looked inside the van with his flashlight and saw [Petitioner] lying asleep on the floor between the front driver and passenger seats. Sergeant Kelly testified that it appeared as though [Petitioner] had been sitting in the driver's seat and had fallen out, noting that [Petitioner's] feet were resting on the floorboard of the driver's seat. The last thing Sergeant Kelly remembered before waking up in the hospital was knocking on the window and [Petitioner] looking up at him.

While Sergeant Kelly was outside [Petitioner's] van, another car traveling in the westbound lane collided with the van. The driver, Salvador Valdovinos, testified that around 10:30 p.m., he was driving home on Avenue 320, when his vision of the road in front of him was obscured by "the highbeams of another car." Later in his testimony, Valdovinos confirmed that the bright lights he saw came from Sergeant Kelly's vehicle, which was parked on the side of the road.

Because he could not see ahead of him, Valdovinos tried to focus on the center yellow line in order to stay in his lane. Once he passed the bright lights, he suddenly saw [Petitioner's] van parked across the westbound lane. Valdovinos pressed his brakes but his car did not stop in time. His car slid and slammed into the rear portion of [Petitioner's] van on the passenger side.

After he slammed into [Petitioner's] van, Valdovinos got out of his car to check if everyone was alright. He found [Petitioner] and Sergeant Kelly, both unconscious, lying on the ground off to the side of the road. After the collision, [Petitioner's] van was facing east and Valdovinos's car was "totaled."

After receiving a call from dispatch just after 10:30 p.m., Frank Freeman, an officer with the California Highway Patrol, responded to the collision. When he arrived, he saw two wrecked vehicles and a sheriff's patrol vehicle. Medical personnel were also on the scene. [Petitioner] and Sergeant Kelly were lying on the north shoulder of the road.

Based on his investigation of the accident scene, Officer Freeman opined that, prior to the accident, [Petitioner's] van was parked in the middle of the road, facing north. It was mainly in the westbound lane and partially on the shoulder. Valdovinos was unable to stop in time and collided with the right side of [Petitioner's] van. The resulting damage did not indicate that Valdovinos had been traveling at an excessive rate of speed but rather had been driving between 50 and 55 miles per hour. The speed limit on Avenue 320 is 55 miles per hour.

Officer Freeman opined that [Petitioner] and Sergeant Kelly had been standing near the left rear of the van when the collision occurred. Upon impact, the van had swung to the left in a westerly direction, hitting [Petitioner] and Sergeant Kelly and whipping them on the shoulder of the road.

After the accident, Officer Freeman interviewed [Petitioner] at the hospital. [Petitioner] told the officer he did not have much recollection of the accident. He remembered being awoken by Sergeant Kelly and directed to get out of the van. [Petitioner] did not know how he got to Avenue 320. He was so drunk that night, he blacked out.

[Petitioner] told Officer Freeman that he went to three different bars that night, ending with the Green Olive bar. [Petitioner] admitted that he drove from one bar to the other and that he had been drinking tequila and Budweiser.

About 10 days after the accident, Officer Freeman drove [Petitioner] from the hospital to the jail. At this time, [Petitioner] told Officer Freeman that he had money that was no longer in the van. However, he did not ask the officer to file a report concerning the missing money.

Toxicological tests revealed that when [Petitioner's] blood was drawn after the accident at 12:30 a.m., he had a blood alcohol content of .20 percent. Assuming he stopped drinking around 8:00 p.m., his blood alcohol content at 10:30 p.m. would have been around .26 percent.

The Defense

The defense argued there was insufficient evidence [Petitioner] drove his van out to Avenue 320, and posited a theory that Hays and Silva were the ones who drove [Petitioner] out to the country, possibly to steal money from [Petitioner].

In support of this theory, the defense relied, in part, on inconsistencies between the version of events Hays and Silva testified to at trial and statements they made to other witnesses nearer to the time of the accident. In this regard, defense counsel elicited testimony from Officer Freeman that Hays and Silva both told him, that after they dropped off [Petitioner] at the motel, they went home, not back to the Green Olive bar like they testified at trial.

The defense also called three witnesses, including Gayle Goldsmith, a bartender of a bar in Exeter frequented by Hays and Silva. Goldsmith testified that sometime in May 2008, they came to pick up some concert tickets she was holding for them behind the bar. Hays volunteered to Goldsmith that on the night of the accident, he dropped [Petitioner] off at the Capri Motel and that he actually watched [Petitioner] get out of the van and approach a room at the motel. Silva also indicated to Goldsmith that she observed [Petitioner] exit the van and walk towards a room at the Capri Motel.

Teresa Taylor, who was working at the Capri Motel on the night of the accident, testified that she did not recall seeing a van pull into the motel parking lot that evening. Taylor acknowledged that she had told the defense investigator if someone in a van had come through to rent a room, she would have seen it because the motel parking lot is very small.

Taylor confirmed that the Corner Cafe is next to the Capri Motel, but she described them as having two distinct parking lots and testified that the cafe parking lot was "not even close to the parking lot of the motel." She acknowledged, however, that there was "a little drive - - like a fire exit" connecting the two parking lots, which someone could use to drive from one parking lot to the other. On cross-examination, Taylor confirmed that from the area where she worked at the motel, she was unable to see the Corner Cafe parking lot.

Rod Hudspeth, the owner of Hudspeth Construction, testified that on April 29, 2008, he wrote and delivered to [Petitioner] a check for a painting job [Petitioner] had done for him.

(LD 4, at 2-7.)


I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

The instant petition is reviewed under the provisions of the Antiterrorism and Effective

Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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); Harrington v. Richter, __ U.S. __, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address [] the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009), quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008); see Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.

If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72, quoting 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, quoting Webster's Third New International Dictionary 495 (1976). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the pre- AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).

"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to ...

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