The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of
Corrections pursuant to a judgment of the Superior Court of
California, County of Kern, following his conviction by jury trial on
February 23, 2009, of: second degree murder; gross vehicular
manslaughter; driving under the influence causing great bodily injury;
driving under the influence with a blood-alcohol content over 0.08
percent causing great bodily injury; engaging in a speed contest
causing bodily injury; willful cruelty to a child; and driving on a
suspended or revoked license with a prior conviction. (CT*fn1
693-694, 899.) The jury also determined that Petitioner had
suffered several prior DUI convictions. (CT 713-714.) On May 12, 2009,
Petitioner was sentenced to an indeterminate prison term of fifteen years to life on the gross
vehicular manslaughter count; sentences on all other counts were
stayed. (CT 899.)
Petitioner filed a timely notice of appeal. On July 2, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed the judgment. (See Lodged Doc. No. 4.) Petitioner filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 5.) On September 15, 2010, the petition was summarily denied. (See Lodged Doc. No. 6.)
On March 10, 2011, Petitioner filed the instant federal habeas petition. He presents three (3) grounds for relief: 1) The trial court erred in failing to instruct the jury on Cal. Penal Code § 191.5(d); 2) The trial court erred in failing to provide a limiting instruction regarding prior drunk driving convictions; and 3) The evidence was insufficient to prove causation. On September 16, 2011, Respondent filed an answer to the petition. Petitioner did not file a traverse.
On October 14, 2007, Hernandez headed to the home of Bridget and Ken Martinez with his two-year-old daughter, Ciara.FN2 While there, he drank three or four 24-ounce beers. Everyone left the house about 1:30 p.m. to drive to River Walk Park on Stockdale Highway for a child's birthday party. On the way to the park, Hernandez and Ken stopped and purchased more beer.
FN2. The record contains two spellings for Hernandez's daughter's name-Ciara and Sierra. For purposes of this opinion, we will use the spelling "Ciara."
While at River Walk Park, Hernandez consumed three more beers. Hernandez was stumbling, having trouble walking, and appeared drunk. Bridget offered to drive Ciara home because she thought Hernandez was intoxicated. An argument ensued between Hernandez and Bridget, and Hernandez drove off in his sport utility vehicle (SUV) with Ciara. As Hernandez drove off, Ciara was not in a car seat and the SUV was hitting the curb. Bridget called 911 to report that Hernandez was "really intoxicated" and driving.
Hernandez drove east on Stockdale Highway, where the speed limit is 45 miles per hour. The LeLouis family also was driving east on Stockdale Highway at the same time. The LeLouises saw two vehicles, one an SUV, race by them going 80 to 90 miles per hour. The two vehicles sped up and began inching in front of each other, changed positions about 10 times, and appeared to be "competing for first."
As the two racing vehicles approached the intersection of Stockdale and Fairway, the SUV ran a red light and broadsided a Mercedes traveling through the intersection. Hernandez was driving the SUV.
As a result of the collision, the passenger in the Mercedes, Barbara Blair, died of blunt force injuries. John Blair, the driver of the Mercedes, suffered life-threatening injuries, including two collapsed lungs, multiple rib fractures, and a fractured clavicle. Ciara suffered a deep laceration to her forehead that required two layers of stitches.
When police arrived at the scene, Hernandez had the smell of alcohol on his breath, red watery eyes, and slurred speech. He told officers he had drunk two beers. A blood-alcohol screening showed Hernandez had a 0.195 percent blood-alcohol content. A blood sample was taken and when tested showed a 0.194 blood-alcohol level.
Detective Don Cegielski, a trained accident reconstructionist, was dispatched to the scene of the collision. Cegielski estimated the SUV was traveling at 72.6 miles per hour when it struck the Mercedes. An event recorder retrieved from the SUV showed the SUV had been traveling at 89 miles per hour five seconds prior to the collision. Cegielski opined that the collision was caused by Hernandez's intoxication, his failure to stop for the red light, and the speed of the SUV.
Cegielski interviewed Hernandez. Hernandez told Cegielski he had had two 32-ounce beers before the collision. Hernandez admitted he had prior DUI's (driving under the influence), had a suspended license, and previously had been advised that if he was driving drunk and was in a collision that killed someone, he could be charged with murder. Hernandez admitted he should not have been drinking and driving, but denied he was racing and claimed he was going about 50 miles per hour.
Hernandez was charged with (1) second degree murder, (2) gross vehicular manslaughter with a prior conviction under Vehicle Code section 23152 and former Vehicle Code section 23175, (3) driving under the influence and causing bodily injury, (4) driving with a blood-alcohol content in excess of 0.08 percent and causing bodily injury, (5) engaging in a speed contest and causing bodily injury, (6) causing a child to suffer physical pain or mental suffering, and (7) driving on a suspended or revoked license with a prior conviction under Vehicle Code section 14601.2, subdivision (d)(2).
During the trial, the People introduced evidence of seven prior DUI convictions Hernandez had suffered. Hernandez's probation officer at the time of trial testified that he had told Hernandez that if he drove while under the influence of alcohol and killed someone, he could be charged with murder.
Private investigator Andrew Hanson interviewed Bridget, who denied telling police she saw Hernandez stumbling at River Walk Park. Hanson also interviewed Randy Byrd, whose child's party had been at River Walk Park. Byrd stated he did not see Hernandez drink while at River Walk Park and he did not believe Hernandez was intoxicated. (See Lodged Doc. No. 4.)
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, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern 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. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (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 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
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 preAEDPA 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 the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists could disagree on the correctness of the state courts decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 (9th Cir.2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
AEDPA requires considerable deference to the state courts. "[R]review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," and "evidence introduced in federal court has no bearing on 2254(d)(1) review." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
III. Review of Claims A. Instructional Error - Cal. Penal Code § 191.5(d)
In his first claim for relief, Petitioner alleges the trial court prejudicially erred in failing to properly instruct the jury on Cal. Penal Code § 191.5(d). He claims his right to jury trial and his due process rights were violated as a result of the trial court's instructional error. Petitioner presented this claim on direct appeal to the Fifth DCA. It was rejected in a reasoned decision on July 2, 2010. (See Lodged Doc. No. 4.) Petitioner then presented the claim to the California Supreme Court in a petition for review. The petition was denied without comment on September 15, 2010. (See Lodged Doc. No. 6.) When the California Supreme Court's opinion is summary in nature, the Court must "look through" that decision to a court below that has issued a reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 (1991). The Fifth DCA analyzed the claim as follows:
I. Section 191.5 Instructional Error
Section 191.5, subdivision (d) provides, in pertinent part: "A person convicted of violating subdivision (a) who has one or more prior convictions of this section or ... of violating [Vehicle Code] section 23152 punishable under [Vehicle Code] Sections 23540, 23542, 23546, 23549, 23550, or 23552 ... shall be punished by imprisonment in the state prison for a term of 15 years to life." The information alleged in count 2 that Hernandez had violated section 191.5, subdivision (d) in that he previously had been "convicted of driving under [the] influence, w/4 priors, in violation of Vehicle Code [sections] 23152(a)/23175, on or about December 11, 1996, in the Superior Court, County of Kern, California, case # SC068306A." (Capitalization omitted.)
The crux of Hernandez's contention is that the trial court erred prejudicially when it failed to instruct the jury with Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 3100 (prior conviction: nonbifurcated trial), and when it instructed with a modified version of CALCRIM No. 590 (gross vehicular manslaughter while intoxicated). Before addressing the instructional error, we must address two preliminary matters concerning the inartful drafting of the charges against Hernandez.
First, section 191.5, subdivision (d) is not an offense; it is an enhancement. The very language of this subdivision states that in order for it to apply, a defendant must be convicted of the offense of gross vehicular manslaughter as defined in section 191.5, subdivision (a). Section 191.5, subdivision (d) specifies an increased punishment for the offense of gross vehicular manslaughter if the defendant has suffered the requisite prior conviction. (People v. Barrett (2003) 109 Cal.App.4th 437, 439.) Hernandez did not raise any claim of error regarding the pleading in the trial court. Therefore, he has forfeited any claim of ...