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Theon Kambon v. People of the State of California

September 13, 2012

THEON KAMBON, PETITIONER,
v.
PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the sentence he received on a 2007 conviction for corporal injury, corporal injury on a co-habitant, assault by means of force likely to produce great bodily injury, and false imprisonment. Specifically, he claims that there was insufficient evidence to prove that his prior conviction for battery qualified as a "strike" under California's Three Strikes Law. 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 Background*fn1

Following a jury trial in which defendant Theon Marcel Kambon represented himself, a jury convicted him of corporal injury on a cohabitant, assault by means of force likely to produce great bodily injury, and false imprisonment, each against A.J.; the jury also convicted him of corporal injury to B.K., the mother of his child. In a trial by court, the court found defendant had a prior serious felony conviction within the meaning of Penal Code section 667, subdivisions (a) and (b)-(I). (Undesignated statutory references that follow are to the Penal Code.) For these convictions as well as those in another case for which defendant was on probation, he was sentenced to prison for 10 years four months.

On appeal, defendant contends reversal of his convictions is required because the trial court erred by . . . (3) finding true the prior strike allegation . . . .. We reject each contention and affirm the judgment.

Facts and Proceedings Charged acts of violence against A.J.

In July 2007, A.J. was living with defendant in a romantic relationship. On July 27, A.J. called defendant and he told her he was in a room at a Motel 6. A.J. went to the room, discovered that it was registered in "some girl's name," and there were condom wrappers on the floor. When she questioned defendant about these circumstances, he became angry and, over that night and the next day (July 28), beat her with his hands and fists, choked and kicked her, and took her clothes and put them in his car so that she could not leave. He eventually gave her back her clothes and she went to the front desk, rented her own room, and called the police.

Officer Matthew Villarreal responded to A.J.'s call. She was frightened and had multiple bruises around her eye, head, forearm, and legs.

Uncharged acts of violence against A.J.

On March 29, 2007, defendant and A.J. were in Carson City, Nevada, drinking and arguing in a car. Defendant struck A.J. in the head with one of her high-heeled shoes, hit her more than five times in the head and arms with his hands, and choked her into unconsciousness. She escaped, ran back to their hotel and the police were called. A.J. was very bloody, some of her hair had been pulled from her head, and she was crying and hysterical. An examination of the car wherein the assault took place revealed blood on the seats, windows, doors, and dashboard.

Charged acts of violence against B.K.

B.K. testified that she and defendant dated from 2004 to 2006 and that he was the father of her son. On July 1, 2006, she was asleep in her apartment when she was awakened by defendant who was angry. Defendant slapped her, hit her head against the headboard, and grabbed her face so hard that it left bruises. Photographs showed the injuries she had received.

Uncharged acts of violence against B.K.

On January 9, 2005, B.K. went to defendant's apartment to get her keys from him. When she told him why she was there he grabbed her by the hair, pulled her into the bedroom, hit her in the face and upper body, and threw her into a wall.

On June 28, 2007, defendant came to B.K.'s residence looking angry and upset. He grabbed her by the hair as she tried to walk to her bedroom, then grabbed her by the face and squeezed her jaw.

B.K .'s niece, J., who had been asleep, heard Boupheng's screams as she came toward J.'s room. B.K. came into the room followed by defendant who grabbed B.K. by the hair and face.

Uncharged acts of violence against Jamie D.

Jamie D. was the mother of two of defendant's children. On July 1, 2006, defendant came to her residence early in the morning and climbed into bed with her. When she rebuffed his attempts to touch her, he became angry but left the room. She fell back asleep, but was awakened by defendant straddling her and yelling. He choked her and for an hour hit her on the face and head. After he left she went to the hospital where she received treatment for injuries to her eye and swelling to her face, chest, and arms. Uncharged acts of violence against M.G.

On July 17, 2006, defendant arrived uninvited at the residence of M.G., the mother of two of defendant's children. While the two were discussing their daughter, defendant became angry, struck Marigold in the face three times with his fist, causing a welt on the side of her face and bruising to her jaw. She reported the attack to the police.

Defense

Defendant denied committing the assaults testified to by A.J., B.K., Jamie, and Marigold. He also presented witnesses who testified that they had never seen or heard of defendant hitting any woman.

Answer, Dckt. No. 17, at 11-12.

After the California Court of Appeal issued its decision, petitioner filed a timely petition for review in the California Supreme Court. The Supreme Court summarily denied review by order dated May 12, 2010. Petition, Dckt. No. 1, at 13.

II. Standards for a Writ of Habeas Corpus

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); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___, ___, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. ยง 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, ...


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