The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. §2254. Petitioner was sentenced to five years of supervised probation pursuant to an October 3, 2007, Yuba County Superior Court judgment, following a conviction by a jury of a felony attempted kidnapping of a child under 14 (Cal. Pen. Code §§664/208(b)) and a misdemeanor resisting arrest (Cal. Penal Code § 148(a)(1)). Petition, pp. 1-2; Answer, p. 6. Petitioner alleges a denial of her rights to due process and a fair trial based on the following grounds: 1) insufficient evidence of intent to kidnap child for jury to convict; 2) trial court failed to properly instruct, sua sponte, on a lesser included offense. Petition, pp. 5, 7, 22, 32-55. \\\\
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra, 131 S.Ct. at 786-787."Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The Third District Court of Appeal has, in an unpublished opinion, accurately set forth the facts of the case as reflected by the trial record (with one minor correction noted here as footnote 1):
Around 8:00 p.m. on December 1, 2006, four-year-old C. and his grandparents stopped at a market after church to get something to drink. C. and the grandfather went into the market.
While the two were at the self-serve soda fountain to fill their cups, defendant (whom they did not know) grabbed C. from behind and started kissing him. C. was "startled," and the grandfather told defendant to get her hands off C. because she did not know him. C. insisted that she did,*fn1 but the grandfather told her to " 'just leave [C.] alone.' " Defendant "kind of walked away" and said that she loved C., to which the grandfather responded that she " 'd[id]n't need to be grabbing him.' "
Defendant followed the grandfather and C. to the payment counter and eventually out the door. When they reached the car, defendant stood behind the grandfather as he was strapping C. into his car seat. Defendant told the grandfather C. "had rights," "she was representing his rights," and she was "[t]rying to get the boy." The grandfather told her "he didn't know her" and "she needed to back off."
The grandfather strapped C. into his car seat, shut C.'s door, and went to open his own door. Defendant opened C.'s door, put "her hands on" on C., and "tr[ied] to get him out of his seat." Within less than a second, the grandfather "got back there," pulled defendant away, shut C.'s door, and told defendant to stay away from the car. Defendant "[c]uss[ed]" at the grandfather, who was now back in the driver's seat with his door locked.
Defendant came back again, tried to open C.'s door, and when "[i]t wouldn't work," tried to open the grandfather's door. The grandfather jumped out of the car, "shoved [defendant] all the way up to the store," and told her to stay away from them. Defendant said "she was trying to protect [C.], needed to get him to keep him safe," and warned the grandfather he "needed to be careful because she had taken down bigger men than him."
The grandfather returned to the car and "started to try to back out." Defendant followed the grandfather to the car and continued "cussing" at him. The grandfather drove the car out of the parking lot and called police.
When a sheriff deputy tried to arrest defendant, she attempted to hit him. Three deputies eventually took defendant into custody.
People v. Marrs, 2009 WL 271239 at *1 (Cal. App.3rd Dist. 2009); Answer, Exhibit (Exh.) 1 .
IV. Procedural Background
A four-count information was filed by the Yuba County District Attorney alleging that petitioner, on December 1, 2006, had (count 1) attempted to kidnap a child under 14 years of age (Cal. Pen. Code § 664/208(b) -- a felony; (count 2) willfully placed a child in a situation where the child might be endangered (Cal. Pen. Code § 237a(b)-- a misdemeanor; (count 3) unlawfully used a controlled substance (Cal. Health & Safety Code § 11550(a) -- a misdemeanor; (count 4) resisted arrest (Cal. Pen. Code § 148(a)(1)). CT 109-10.*fn2 Criminal proceedings were suspended by the court on January 17, 2007, when petitioner was ordered to undergo an evaluation (Cal. Pen. Code § 1368), her counsel having expressed the opinion that she was mentally incompetent. CT 20-21, 32. Petitioner was found incompetent to stand trial on February 13, 2007, and the court committed her on February 26, 2007, to Patton State Hospital for her sanity to be restored. CT 29, 40-41. Certification by the hospital of petitioner's mental competence was received by the court on July 9, 2007 and, on July 13, 2007, petitioner was found mentally competent to stand trial and criminal proceedings were reinstated. CT 45, 54. However, two weeks later, on July 27, 2007, the court again suspended further proceedings on the question of petitioner's mental competence, ordering another § 1368 hearing. CT 68-69, 71-73. On August 16, 2007, petitioner was found competent to stand trial based on the report of the appointed psychologist. CT 77. Counts two and three were dismissed and a jury trial held as to counts one and four. CT 132; RT 2, 7-8. Petitioner was found guilty by the jury, on October 3, 2007, of attempted kidnapping and resisting arrest. RT 119-120. The court placed petitioner on five years of formal probation, suspending sentencing, and assessed various fines against petitioner: restitution in the amount of $200 pursuant to Cal. Pen. Code §1202.4; restitution of $200 for a probation revocation fine under §1202.44; a $20 court security fee pursuant to §1465.8; and a $20 a month fee for probation services for the five year probation term. CT 213; RT 138. See also, Petition, pp. 26-28; Answer, pp. 8-9.*fn3
Petitioner's timely notice of appeal was filed on December 6, 2007; the state court of appeal affirmed the judgment on February 5, 2009; the March 13, 2009 petition for review to the California Supreme Court was denied on April 15, 2009. CT 219; Answer, pp. 19-25; respondent's Lodged Document 3; Petition, p. 4. No state collateral petition was filed; the instant petition was docketed as filed on February 3, 2010. Following briefing, the matter was submitted as of June 21, 2010.
V. Claim 1- Insufficiency of the Evidence
Petitioner claims she was denied her right to due process and her Sixth Amendment right to a fair trial when she was convicted of attempting to kidnap a child without sufficient evidence of such intent. Petition, pp. 5, 33-44.
Legal Standard - Sufficiency of the Evidence
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979). Jackson established a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence. U.S. v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). First, the court considers the evidence at trial in the light most favorable to the prosecution. Id., citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781. "'[W]hen faced with a record of historical facts that supports conflicting inferences," a reviewing court 'must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id., quoting Jackson, 443 U.S. at 326, 99 S.Ct. 2781.
"Second, after viewing the evidence in the light most favorable to the prosecution, a reviewing court must determine whether this evidence, so viewed is adequate to allow 'any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.'" Id., quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781. "At this second step, we must reverse the verdict if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt." Id.
Superimposed on these already stringent insufficiency standards is the AEDPA requirement that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).
Petitioner states in handwritten letters attached to her petition that she is innocent and that all she "was trying to do was make friends and give them my phone # and address" so that her four-year-old son could play with the child on weekends. Petition, pp. 16-17. She claims she "never touched the back door" or did anything "they said I did," including resist arrest. Id. Petitioner's description of her arrest involves her claim of having been thrown to the ground and placed in handcuffs and having been tested for lack of sobriety with little or no provocation. Id., at 17-19. Petitioner primarily, however, relies on the arguments raised on direct appeal to the Third District Court of Appeal, appending a copy of her opening brief to the instant petition. Petition, pp. 21-57.*fn4
Petitioner is correct that the prosecution must prove every element of a crime beyond a reasonable doubt to a jury. Petition, pp. 33-34, 39. It is the prosecution's burden to prove all elements of a charged offense. Sullivan v. Louisiana, 508 U.S. 275, 277-278, 113 S.Ct. 2078 (1993), citing inter alia, Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319 (1977). The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068 (1970). Petitioner notes the distinction between simple kidnapping, which is a general intent crime, and attempted kidnapping, which requires a specific intent. Petition, p. 35. Attempted kidnapping, under California law, requires (1) a specific intent to commit the offense and (2) a direct but ineffectual act done toward its commission. Id., citing Cal. Pen. Code § 21a.*fn5 Petitioner cites People v. Cole, 165 Cal.App.3d 41, 50, 211 Cal. Rptr. 242 (1985), which notes that while to prove kidnapping, it must be shown that the movement of the victim was substantial, while "asportation simply is not an element of" attempted kidnapping. Petitioner contends that intent may be shown by actions or statements but that her actions within the store of hugging the child then letting him go voluntarily and her words outside at the car, stating she was there to protect the child and his rights, do not demonstrate any intent to move the child a substantial distance. Petition, p. 36. Thus, according to petitioner, the only direct or circumstantial evidence was that she believed she knew the child and wanted to "protect" him and his rights but did not show an intent to kidnap. Id. at 36-37. Petitioner argues that had she been attempting to kidnap the child she would have done so when she "bear"-hugged him in the store. Id., at 37. Under Cal. Penal Code §§ 207(e),*fn6 208(b),*fn7 the act of moving or attempting to move a child is not criminalized unless done for an illegal ...