FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him in the Sacramento County Superior Court on charges of grand theft from a person, assault, and making a criminal threat. He seeks federal habeas relief on the grounds that the trial court's erroneous admission of evidence violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On October 19, 2007, after a jury trial, petitioner was convicted of grand theft from a person, simple assault, misdemeanor battery, and making a criminal threat. (Clerk's Transcript on Appeal at 279.) The jury acquitted petitioner of robbery and aggravated assault. (Id. at 183, 185.) The trial court subsequently sentenced petitioner to a term of three years in state prison. (Reporter's Transcript on Appeal, Volume II, at 366-67.)
On November 5, 2009, petitioner filed his opening brief on appeal in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. No. 2.) By order dated May 19, 2010, the state appellate court reversed petitioner's conviction for battery, modified his sentence accordingly, and otherwise affirmed the judgment of conviction. (Resp't's Lod. Doc. No. 1.)
On June 10, 2010, petitioner filed a petition for review in the California Supreme Court, raising the sole claim that the trial court violated his right to due process under both the U.S. and California Constitutions when it admitted evidence that he had committed a prior assault on the husband of his victim in this case. (Resp't's Lod. Doc. No. 5.) The Supreme Court summarily denied that petition by order dated July 22, 2010. (Resp't's Lod. Doc. No. 6.)
Petitioner commenced his federal habeas action by filing a petition for writ of habeas corpus in this court on September 30, 2010.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
A jury convicted defendant Sherman Cummings of grand theft from a person, simple assault, misdemeanor battery, and making a criminal threat. (Pen. Code, §§ 487, subd. (c), 240, 242, 422.) The jury acquitted him of robbery and aggravated assault. (Pen. Code, §§ 211, 245, subd. (a)(1).) The trial court sentenced defendant to prison for a total of three years. Defendant timely filed this appeal. Defendant contends the trial court should not have allowed the People to introduce evidence of a prior assault he committed against the current victim's husband. We shall conclude the trial court properly admitted this evidence. Defendant also contends -- and the Attorney General concedes -- that the battery conviction must be reversed because it was not a charged offense or necessarily included within a charged offense. We agree. We shall reverse the battery conviction, modify the sentence, and otherwise affirm the judgment.
The victim, Delores Sears, lived about four blocks from George's Market. She lived with Ervin Miller, whom she had been with since about 2003, and she was now married to him. She testified that at about 9:30 p.m., on July 18, 2007, she walked her dog toward George's Market. She had had a sexual relationship with defendant, but testified it ended over a year before. As she walked to the market, defendant ran up to her, talking crazy. He said "he was going to get his hoes to kick my ass." He grabbed a bag she was carrying that had three dollars in it, and ran towards the market. She was scared. As she walked back home, defendant caught up with her and asked her to go to his house because he wanted her dog to mate with his dog. He also told her he would "kill me and my dog." He grabbed her and began to choke her so she could not scream. At one point he kicked her dog, and when it became aggressive, he walked off, fast.
Sears testified she knew that defendant had assaulted her husband Miller the year before this incident, and had seen Miller's injuries; this knowledge affected her during the current incident. Sears had a misdemeanor burglary conviction.
When police arrived, Sears was upset and crying. She reported pain, and had redness around her neck. She told an officer that defendant first made a threat to her as she ran through her front door. Miller testified that Sears came home crying and upset. Miller had two convictions reflecting moral turpitude.
Miller testified that on July 19, 2006, as he was riding his bike to George's Market, defendant jumped out and hit him in the face twice, cutting his cheek, and he still bore scars, which he showed to the jury. A police officer testified that Miller had "fairly" deep lacerations from his chin to his ear, and bruising under his eye, as a result of the 2006 incident. Defendant pled guilty to assault and was granted probation, with conditions that he serve 120 days in jail and not come within 100 feet of Sears and Miller's house.
In count one, the jury acquitted defendant of robbery but convicted him of grand theft from a person. In count two, the jury acquitted defendant of aggravated assault, but convicted him of assault and battery. In count three, the jury convicted defendant of making a criminal threat.
Based on the verdicts, the trial court found defendant violated his probation in a prior case (Sacramento County Superior Court No. 06F06314), in which defendant pled guilty to aggravated assault (Pen .Code, § 245, subd. (a)(1)) stemming from his 2006 attack on Miller.
The trial court sentenced defendant to a total of three years in prison, as we describe in more detail later in this opinion. Defendant timely appealed.
I. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); ...