FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2005 judgment of conviction entered against him in the Sacramento County Superior Court on charges of assault with a deadly weapon, inflicting corporal injury on his spouse, and child endangerment. He seeks relief on the grounds that: (1) the erroneous admission of evidence violated his right to due process; (2) his trial counsel rendered ineffective assistance; and (3) his sentence constitutes cruel and unusual punishment. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Factual and Procedural Background*fn1
Defendant Craig Ray Canary was convicted by a jury of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) inflicting corporal injury on a spouse (Pen.Code, § 273.5, subd. (a)), and child abuse under circumstances likely to produce great bodily injury (Pen.Code, § 273a, subd. (a)). The jury also found true an enhancement for personal use of a deadly weapon (Pen.Code, § 12022, subd. (b)(1)) in the assault and child abuse counts, and found true a personal infliction of great bodily injury enhancement (Pen.Code, § 12022.7, subd. (e)) in the assault and spousal abuse counts. The trial court found true that defendant suffered two prior strikes within the meaning of the "Three Strikes" law and denied defendant's motion to strike the priors. Defendant was sentenced to 35 years to life: 25 years to life for the assault with a deadly weapon offense, four years for the great bodily injury enhancement, one year for the deadly weapon enhancement, and five years for a prior serious felony.
On appeal, defendant contends: (1) the trial court erroneously admitted a 911 call made by one of the witnesses; (2) evidence of prior uncharged offenses was improperly admitted; (3) trial counsel was ineffective; (4) cumulative error warrants reversal; and (5) his sentence violates the prohibition against cruel and unusual punishment. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves an incident where a Pontiac Sunbird driven by defendant hit broadside a Ford Thunderbird containing his wife, Kimberly Canary, and Justin Noel, her son by a previous marriage, just after midnight on January 21, 2004. The couple and Kimberly's son lived at the house of defendant's parents on Park Riviera Way in Sacramento.
On January 20, 2004, Kimberly drove to a local drugstore without telling defendant, which made him angry. She briefly left home after an argument with defendant. Defendant was gone when she returned. Defendant, who had been drinking, left and went drinking at various friends' houses.
Just after midnight on January 21, 2004, Wesley Lavore, a surgical assistant and former paramedic, was driving down Park Riviera Way. He noticed a parked red car facing in the wrong direction, and another car backing out of a driveway. As he passed the car in the driveway, Lavore looked in his rearview mirror to see if the car was going to pull out. He saw the red car collide with the car leaving the driveway, a silver Thunderbird. The red car did not have its lights on.
Lavore turned around, stopped, and left his car to help. He saw a young boy leave the car and run into the house. The red car was driven by defendant, who backed up and left. Lavore went to the Thunderbird to check the woman trapped inside the vehicle. Defendant returned to the scene on foot. He seemed very intoxicated, and yelled at the female victim and someone who had come from the house. Defendant went over to the victim and hit her in the face until Lavore and others pulled him off. Defendant yelled at the people who pulled him off and went into the house. Lavore dialed 911 just after the collision. A tape recording of the call was played to the jury. Lavore told the dispatcher that a red Datsun "T-boned" a Thunderbird. He said that the lady in the Thunderbird was pinned behind the steering wheel of her car. Lavore also described defendant's return to the scene. The victim, moaning, "Oh God," was heard on the tape. Defendant was heard saying, "Oh, you're a rat now, huh?"
People in the neighborhood testified to what happened after the collision. One neighbor saw a person looking like defendant approach the scene on foot, call the victim a "whore," and attack her. Another person saw Justin leave the vehicle, and that Justin's mother was inside the vehicle and badly injured. Defendant approached the scene seemingly intoxicated. Defendant walked up to the victim and said, "You deserve to fucking die," and then said, "I hope you die." Defendant punched the victim in the face after yelling at her. Defendant was found hiding in the bushes in a neighbor's yard and arrested. As defendant was being led to the patrol car he exclaimed, "I meant to hit her. I saw her making a U-turn in front of my parents' house, and I hit her -- or excuse me -- I meant to kill her." He then said "I started making a U-turn in front of my parents' house and I hit her. The fucking bitch is on crank. She -- I hope she dies" and concluded by saying, "I know I fucked up, but she deserves to fucking die."
Kimberly suffered severe injuries from the collision, receiving a concussion, several fractured ribs, a collapsed left lung, pelvic fractures, and a compression fracture of her lumbar spine. Her treating doctor testified that these injuries were consistent with a violent car collision.
Kimberly remembered little about the collision. She thought the crash took place between 5:00 and 6:00 p.m. Kimberly thought she made two U-turns after leaving the house. Everything went blank after she started the second U-turn. She did not remember getting hit, or anything else until waking up in the hospital five days later.
Justin did not remember all of what happened the night of the collision. His mother told him they were leaving the house, but he did not know why. He recalled his mother saying, "watch this" during a U-turn, and then his grandmother coming to get him from the hospital. He denied knowing about any fight between defendant and his mother that evening, but admitted hearing them yelling in the trailer where they lived.
Justin also testified about an earlier confrontation where defendant looked like he was going to hit Kimberly with a brick. Justin intervened, and defendant hit him in the nose. Officer Darby Lannom responded to this incident on December 8, 2003. Defendant admitted slapping Justin, but could not explain to Officer Lannom why Justin had a bloody nose if he had only been slapped.
Officer Jill Landberg also responded to the disturbance. Officer Landberg noticed Justin had a swollen mouth and lips. Justin told Officer Landberg he had just intervened in a fight between his parents, and defendant hit him three times. Justin also talked about a confrontation with defendant on December 7. While Justin was staying at his best friend Vincent's house, defendant came over and accused Justin of stealing a watch. Defendant told Justin to come with him, and that "he was going to put holes in [Justin]." Justin thought this meant defendant would shoot him.
Officer Patrick McBeth interviewed Justin after the accident. Justin told Officer McBeth his mom and defendant argued that evening. Kimberly and Justin left the house because defendant threatened to beat her up. Defendant was gone when they came back, but they left again after he called and said he was coming home and would beat her up. Justin and his mom got their things, backed out of the driveway, and defendant ran into their car on purpose. Justin saw defendant swearing at his mother and hitting her after the collision.
Defendant testified on his own behalf. Kimberly was angry with defendant that day and left the house. After Kimberly left, defendant finished his bottle of whiskey, borrowed his sister's car, and visited various friends to go drinking.
As he approached home, defendant could not tell the identity of the car until he was 150-200 feet away. The car was almost out into the street and blocking defendant's lane, so he tried to go around it. As defendant tried to pass, the other car turned in front of him. Defendant hit the brakes as he was going over a speed bump, but could not stop or turn away in time. Defendant denied striking Kimberly after the collision. Defendant did not mean to hit his wife's car or to hurt her.
An accident reconstructionist testified for the defense. The investigation by the Sacramento Police Department was inadequate to allow him to conduct an independent analysis. The impact was less than 35 miles per hour, because a collision at a higher speed was likely to be fatal. The damage pattern was consistent with the Thunderbird making a U-turn in front of defendant's car.
The prosecution filed a pretrial in limine motion to admit the 911 tape. Defendant objected, claiming the call would be difficult to authenticate, and would violate Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. Defense counsel agreed with the court's conclusion that the Crawford objection was improper because the declarant would also testify. Defense counsel had no problem with the tape so long as it was authenticated, and references to defendant as a "bad guy" were redacted. The trial court held that the tape did not implicate the confrontation clause, and that references in the tape to defendant as the "bad guy" would be redacted as more prejudicial than probative.
At trial, defendant objected to the testimony about the December 2003 incidents on relevance and Evidence Code section 1109 notice grounds. The court denied the objection, but excluded under Evidence Code section 352 testimony that defendant and Kimberly had fought for years and defendant had hit her a number of times in the past.*fn2
Resp.'s Lodg. Doc. 2 (hereinafter Opinion), at 1-7.
After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court, in which he raised the same claims contained in the instant petition. Resp.'s Lodg. Doc. 3. That petition was summarily denied. Resp.'s Lodg. Doc. 4.
A. Standards for a Writ of ...