The opinion of the court was delivered by: United States Magistrate Judge Timothy J Bommer
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner and Respondent have consented to have a United States Magistrate Judge conduct all further proceedings in this case.
Petitioner was convicted by a jury of making a criminal threat in violation of California Penal Code § 422. The jury also found true an allegation that he personally used a firearm while making the threat. Petitioner received a sentence of fours years and four months imprisonment. Petitioner raises three claims in the instant federal habeas petition; specifically: (1) Petitioner's statements which formed the basis of the making criminal threats conviction were protected by the First Amendment ("Claim I"); (2) there was insufficient evidence to support the conviction of making criminal threats ("Claim II"); and (3) there was insufficient evidence to support the firearm enhancement ("Claim III"). For the following reasons, the habeas petition will be denied.
II. FACTUAL BACKGROUND*fn1
Aaron Langston worked for Blackstone Communications, a company that installed "Direct TV." The equipment the company used was located at Public Storage in Sacramento County, where employees would pick up equipment and start their routes. Defendant's wife, Sarah Windham, was Langston's boss. Windham's and Langston's relationship was friendly but not sexual. In April 2008, defendant walked in on Windham and Langston "joking around" and laughing at the Public Storage facility and misconstrued their behavior. Langston explained "nothing was going on," shook defendant's hand, and "thought everything was kosher."
On the morning of May 15, 2008, Langston and his roommate, Robert Taylor, who helped Langston out occasionally, went to Public Storage to begin work. They picked up materials from the storage facility, and as they were leaving to begin their route, they saw defendant and Windham yelling at each other. Langston became concerned because Windham previously told him that defendant had been violent with her. He decided to come back 5 or 10 minutes later and make sure everything was okay. When he did, Windham "looked roughed up," like she had "just . . . been in a . . . wrestling match." She had lumps on the back of her head, and she said defendant had "t[aken] her by the hair and then slammed her head up against the car a couple of times."
Defendant went to his car and removed what looked like a gun. Holding the gun at his side, he asked if any of them "had anymore to say to him." "[O]f course, nobody said anything." Defendant then got in his car and drove away. Langston called 911.
Five or 10 minutes later, Windham got in her car to drive to Wal-Mart for baby formula. Five minutes later, Windham called Langston to report defendant was "right up behind her, following her." Langston told her not to stop. Believing Windham was in danger, he headed to Wal-Mart in his truck.
At Wal-Mart's parking lot, Langston found neither Windham nor defendant. He drove back to Public Storage to wait for police. Windham returned to Public Storage, and 10 minutes later, so did defendant. As he parked at the gate, police pulled up behind him. They first confirmed with Langston and Windham that defendant was the "'guy [who] the phone call was about.'" Police put defendant in the backseat of the patrol car because the dispatch call mentioned the possibility of a gun. Defendant said he had a "child's toy [gun]" in his car. In the rear of defendant's car, police found a fake plastic airsoft gun.
A police officer talked to Langston and Windham about what had happened. Windham said nothing had occurred. Langston said, "[L]ook at the security camera . . . [and] any of [your] questions would be answered." Langston was "[n]ot really" cooperative with law enforcement because Windham had told him not to mention the gun. The police decided "[n]othing [had] occurred" and left after 10 or 15 minutes.
After police left, defendant started "taunting" Langston, saying, "'Did you really believe that she'd ever have me arrested?'" Defendant then went to the back of his car and opened the rear hatchback. He pulled out a second gun, and, while five feet away from Langston, "flashed it," saying "'I guessed they missed one. I'll see you later. I'm going to fuck your girl.'" Langston told defendant, "'fuck you'" and "took off."
Langston described defendant's comments as a "threat [ ]." He understood them to mean defendant was "not happy about having the police called, and that he's going to find out where [Langston] live[s], or already knows where [he] live[s], and then come and get retribution." Langston was "[a]bsolutely fearful "at this point." He was "[a]bsolutely" fearful defendant would make good on his threats because if defendant "ha[d] the nerve to [pull out a gun], [Langston] ha[d] no reason to think that he w[ould]'t do everything else he said."
Langston described the second gun as a semiautomatic Beretta with a rounded top, weighing about five pounds, that "[a]bsolutely appeared real to him. Even though the first one may not have been, he believed the second one was.
When Langston left Public Storage, he did not go on his route, but went home and told his girlfriend what had happened. She become scared.
That day, Langston received about 10 voice mails from defendant -- all "threatening." In some of them, defendant recited Langston's address and Social Security number, asked him for $500 "to pay for what [Langston had] d[one] with calling the police and having him put in the back of a police car," and said he was "'going to rape [Langston's] wife.'" Defendant also sent a text message to Langston's co-worker, saying "I'm on my way to his house." The co-worker forwarded the message to Langston.
Langston and his girlfriend drove to the police station to file a report and get a restraining order. They then spent the night at a friends's house.
Petitioner appealed his conviction and sentence to the California Court of Appeal. Most relevant to the instant federal habeas petition, Petitioner argued that there was insufficient evidence to convict him of making criminal threats. Within that argument, Petitioner asserted that his speech and conduct at Public Storage were an exercise of his First Amendment rights. Additionally, Petitioner argued that there was insufficient evidence for the gun enhancement. The Court of Appeal affirmed the judgment on March 30, 2010. Petitioner then filed a petition for review in the California Supreme Court. In that petition for review, Petitioner argued that there was insufficient evidence to support the making criminal threats conviction. However, in that brief, Petitioner did not argue that his conduct and speech at Public Storage were protected by the First ...