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Weili Kao v. Tina Hornbeak

November 22, 2011



Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before a United States Magistrate Judge with the consent of the parties pursuant to 28 U.S.C. § 636(c). See Consents filed October 7, 2009 and November 20, 2009.

This action is proceeding on petitioner's original petition for writ of habeas corpus, filed September 24, 2009. Therein, petitioner challenges her 2005 conviction on charges of corporal punishment or injury of a child, enhanced by infliction of great bodily injury, and the sentence of sixteen years and four months in state prison imposed thereon. Specifically, petitioner claims that (1) there was insufficient evidence to support the jury's true finding of a great bodily injury enhancement as to count 3; (2) the trial court violated petitioner's right to due process by imposing an upper term sentence based on facts not found by the jury; (3) the trial court violated petitioner's right to due process based on a finding, that the crimes were planned, which was not supported by substantial evidence; and (4) petitioner's counsel provided ineffective assistance in failing to object to the trial court's use of planning as an aggravating factor at sentencing. Respondent contends that the claims are without merit.


[Petitioner], who was born and raised in Taiwan, married Thomas L. in 2001 and because a stepmother to his young daughter, T.L. Thomas's previous wife died of cancer when T.L. was around two years old. Thomas and [petitioner] had a daughter together, and [petitioner] stayed home to care for the two girls.

On May 11, 2004, [petitioner] beat and strangled six-year-old T.L. into a persistent vegetative state when [petitioner] became enraged by T.L.'s dishonesty and disobedience.

According to [petitioner]'s witnesses, which included several family members and church associates, [petitioner]'s violent outburst was uncharacteristic because she loved T.L. and was a very caring person. Various psychotherapists testified the episode likely was the result of [petitioner]'s own abusive upbringing; her rigid culturally-influenced attitudes about her role as a wife and mother and a child's duty to unquestioningly obey parental authority; and [petitioner]'s mental problems, including depression and possibly post-traumatic stress syndrome. According to them, these and other factors culminated in her explosion into an atypical rage on the night in question.

Whether or not [petitioner]'s behavior was out of character is irrelevant to the tragic consequences suffered by T.L. [Petitioner]'s statement to Detective Charles Husted revealed that she completely overreacted to behavior that is typical of a six-year-old child. The statement recounted the following events:

Around 9:00 p.m., [petitioner] observed T.L. grab or push her younger sister, who was 16 months old. When [petitioner] questioned T.L. about what had happened, T.L. lied and stated she had been playing with a stuffed animal. [Petitioner] confronted T.L. about the lie, spanked her repeatedly on the buttocks and hands, slapped her across the face four or five times, and pulled on her ears. After T.L. apologized for lying, they hugged and [petitioner] then sent the child to stand in the bathroom for a timeout.

When Thomas telephoned [petitioner] around 10:00 p.m., she did not mention punishing T.L. After the phone call, [petitioner] went to check on T.L., who had been in the bathroom about an hour. T.L. was sitting down rather than standing up as [petitioner] had instructed her. Because [petitioner] did not want to wake the baby, who was sleeping in a room near the bathroom, [petitioner] hauled T.L. by the neck to the master bedroom walk-in closet. [Petitioner] scolded T.L. and when she did not receive a satisfactory response, [petitioner] spanked the child five or six times on the buttocks with a plastic hanger, breaking the hanger in the process.

Still angry, [petitioner] continued to press T.L. about her lying and asked, "What if I told you I won't push you again, but I did? I lied to you. I'm lying to you. How do you feel?" [Petitioner] pushed T.L., who fell to the floor and hit her head. [Petitioner] heard a big bump and T.L. said it hurt. [Petitioner] made the girl stand up and then pushed her to the floor again. T.L. blinked her eyes and then closed them. T.L. did not wake up despite [petitioner]'s repeated attempts to arouse her. [Petitioner] assumed T.L. had fallen asleep from exhaustion or was pretending to be asleep so that she did not have to deal with [petitioner]. [Petitioner] carried T.L. to bed and covered her with a blanket. Although [petitioner] claimed that she did not realize T.L. was unconscious, her claim is belied by the fact she put a diaper on the six-year-old child to ensure that she did not wet the bed.

[Petitioner] checked on T.L. twice during the night. When she was still unresponsive at 6:00 a.m. the next morning, [petitioner] called a friend in New Jersey, who suggested that [petitioner] call someone who lived closer. [Petitioner] telephone a woman, who attended the same church in Oakland. The woman told [petitioner] to take T.L. to the hospital immediately.

Upon her arrival at the emergency room, T.L. was lethargic and limp, her eyes were closed, and her breathing was shallow. [Petitioner] admitted hitting T.L. and asked a nurse not to call social services. Detective Husted responded to a child abuse call and interviewed [petitioner] later that day, during which she made the statements we have summarized above.

Dr. Angela Rosas, a pediatrician specializing in child abuse cases, examined T.L., who was comatose, completely unresponsive even to painful stimuli, and on a ventilator. Her pupils were fixed and dilated, indicating serious injury to the deep parts of her brain. T.L. had multiple bruises and injuries all over her body, including small bruises called petechiae on her face, neck, chest and shoulders, bleeding from her mouth, bruises on both ears, abrasions to her lips, and multiple linear bruises on her lower back and buttocks. The linear bruises were consistent with being beaten forcefully with a hanger.

Dr. Rosas also observed petechiae and bruises around T.L.'s neck and chin, consistent with grab marks and strangulation. Her suspicions regarding strangulation were confirmed when she reviewed the scans of T.L.'s brain, which disclosed a "classic" asphyxiation injury. The scans showed swelling and severe oxygen deficit, which Rosas opined was caused by the compression and obstruction of T.L.'s windpipe for around four to six minutes, or by a partial obstruction for a longer period of time. All of the child's brain tissue was destroyed, exception for the portion that controlled her breathing. She was in a persistent vegetative state. If T.L. had received medical care significantly earlier, she would have had a better outcome.

According to Dr. Rosas, T.L. also had a moderate subdural hematoma on the left side of her head. This is a collection of blood between the brain and the surrounding casing, and is usually caused by an impact injury. The injury was consistent with T.L. hitting her head on the closet floor. In Rosas's opinion, the hematoma did not contribute to T.L.'s persistent vegetative state, but it had contributed to her need to be hospitalized.

Dr. Rosas concluded that the strangulation occurred after [petitioner] beat T.L. with the hanger and pushed her to the ground. This was so because if T.L. had been asphyxiated first, she would not have been able to stand up for the beating or to be shoved to the ground. According to Rosas, T.L. will never be able to see, talk, hear, walk, or eat again.

When Detective Husted told [petitioner] that it looked as if someone had choked T.L., [petitioner] admitted she had pulled T.L. up from the floor with both hands around her neck, but she denied that she had squeezed her neck.

The jury convicted [petitioner] of three counts of corporal injury to a child based on [petitioner] beating T.L. with a hanger (count four), causing a subdural hematoma when she pushed T.L. to the floor (count three), and asphyxiating T.L. until she almost died (count two). The jury also convicted [petitioner] of willful harm to a child based on [petitioner]'s failure to obtain medical care for T.L. in a timely manner (count five).

People v. Kao, No. C050639, slip op. at 3-7.


I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim ...

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