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Kenneth David Beale v. James D. Hartly

February 13, 2012


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Kenneth David Beale, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Beale is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Avenal State Prison. Respondent has answered, and Beale has replied.


Following entry of a no-contest plea to driving under the influence of alcohol causing injury, Cal. Vehicle Code § 23153(a), with three prior driving under the influence convictions, Cal. Vehicle Code § 23566(a) (the driving offense), admission of a great bodily injury enhancement, Cal. Penal Code § 12022.7(a), two prior prison term allegations, Cal. Penal Code § 667.5(b), and in a consolidated case, a plea of no contest to bringing drugs into jail, Cal. Penal Code § 4573, in February 2009 Beale was sentenced to an aggregate term of ten years in prison. The California Court of Appeal, Third Appellate District, affirmed Beale's sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on May 12, 2010. Beale timely filed his Petition for relief in this Court on June 20, 2010.

As recited by the California Court of Appeal, the following proceedings occurred in the trial court:

At sentencing, the court indicated that it had reviewed the probation officer's report, which recommended the midterm of three years for the driving offense and an aggregate sentence of 10 years. In making the sentence recommendation, the probation officer erroneously referred to a "special allegation" under Vehicle Code section 23566, subdivision (a), as having an additional triad of two, three or four years, suggesting the base term was one-third the midterm, or one year. Although the amended information in the driving case included an allegation for an enhancement of one year for each additional injured victim (Veh.Code, § 23558), [Beale] did not admit such allegation.

Defense counsel sought no more than nine years, noting that [Beale] felt remorse as reflected in the probation report. Anticipating the prosecutor's argument concerning the badly injured victims, defense counsel stated it would be a dual use of facts since [Beale] had admitted the great bodily injury enhancement. The prosecutor sought an aggregate sentence of 10 years, noting the seriousness of the injuries of the three victims and [Beale's] criminal record. The prosecutor questioned [Beale's] claim of remorse.

The court denied probation based on the following: the stipulated state prison sentence of at least eight years and no more than 10 years; [Beale's] infliction of injury on the victims; [Beale] was an active participant; [Beale's] prior conduct suggested such conduct is likely to reoccur; [Beale's] pattern of regular or increasingly serious criminal conduct; [Beale's] unsatisfactory performance on probation; the unlikelihood [Beale] had the ability to comply with probation based on his substance abuse problem; and [Beale] would be a danger to others if granted probation. The court noted that it was "mindful" that [Beale] indicated he had remorse but was "guarded in its assessment" of [Beale's] remorse. For consecutive sentences, the court noted that the crimes and objectives were independent of each other and were committed at different times or separate places.

The court then commented, "The Court has reviewed the enhancement section 23566[, subdivision](a) of the Vehicle Code. The conviction of [section] 23153 occurred within [10] years of two or more separate violations, that would be appropriate." In aggravation, the court cited the following: the crime involved injury to the victims, who were particularly vulnerable; [Beale's] prior convictions; and [Beale's] prior unsatisfactory performance on probation. In mitigation, the court cited [Beale's] claim of remorse, but reiterated that the court was "guarded in its acceptance"; and, possibly, [Beale's] acknowledgment of wrongdoing relatively early in the criminal process.

In imposing an aggregate nine-year term for the driving case, the court determined that, although the factors in aggravation outweighed those in mitigation, it selected the midterm of three years for the driving offense. The court then imposed the following: "The special allegation, the Court will impose the one[-]year one-third the midterm as to that enhancement. " (Italics added.) The court imposed three years for the great bodily injury enhancement and one year for each of the two prior prison terms. For the drug smuggling case, the court planned to impose a consecutive term. Defense counsel interrupted, stating that he believed that the plea agreement provided for a concurrent sentence for the drug smuggling case.

After an off-the-record conference at the bench, the court noted that [Beale] did not admit the special allegation in the driving case for which the court had imposed one-third the midterm or one year. The court also noted that there was no agreement for a concurrent sentence on the drug smuggling case. The court stated that it would "strike its previous sentence and start over."

Stating no reasons whatsoever, the court then imposed the upper term of four years for the driving offense, three years for the great bodily injury enhancement, and one year for each of the two prior prison term allegations, for a total of nine years in the driving case. The court imposed a consecutive one-third the midterm or one year in the drug smuggling case. [Beale's] total sentence was 10 years. The court then granted custody credit and ordered fees, fines and victim restitution. Defense counsel interrupted and noted that one of the victims received an insurance settlement. The court continued with sentencing and asked if there was anything further. Defense counsel requested visitation for [Beale] with the co-defendant in the drug smuggling case and the prosecutor opposed the request. The court denied the request. Defense counsel had nothing further.*fn2


Beale raises three grounds for relief: (1) an unconstitutional failure of the trial court and prosecution to disclose evidence favorable to Beale; (2) that his conviction violated the Double Jeopardy Clause; and (3) the denial of review by the California Supreme Court denied him his constitutional right to appeal. Initially this Court notes that despite their denomination as separate grounds and incorrect headings, the factual basis for Beale's first and second grounds present only a single ground: that the sentence imposed violated the negotiated plea agreement. Respondent contends that Beale's claims are ...

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