The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a former state prisoner, proceeding through counsel, and is currently on parole. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. Petitioner challenges his conviction on charges of theft, and was sentenced to five years in state prison on May 15, 2009. Petitioner alleges that errors in the jury instructions misstated California law and prevented the jury from considering petitioner's affirmative defense, in violation of petitioner's due process rights. After careful review of the record, this court concludes that the petition should be denied.
On January 12, 2009, petitioner was charged with petty theft with prior convictions for grand theft. (Clerk's Transcript ("CT") at 40-41.) The information also alleged that petitioner had served two prior prison terms following felony convictions. (CT at 41.) Prior to trial, the parties stipulated that petitioner suffered a prior conviction for a theft offense resulting in at least one day in custody. (CT at 54; Reporter's Transcript ("RT") at 58-59.)
On March 31, 2009, the jury convicted petitioner of petty theft. (CT at 62-63.) In a separate proceeding, petitioner admitted that he had served two separate prior prison terms. (CT at 63; RT at 191-93.) Petitioner was sentenced to five years in state prison. (CT at 121-23.)
Petitioner appealed the conviction, and on June 7, 2010, the California Court of Appeal, Third Appellate District, affirmed the judgment. (LD 4.)
Petitioner filed a petition for review in the California Supreme Court on July 14, 2010. (LD 5.) The California Supreme Court denied the petition without comment on September 15, 2010. (LD 6.)
Petitioner filed the instant petition on June 20, 2011. (Dkt. No. 1.)
The opinion of the California Court of Appeal contains the following factual summary of petitioner's offenses:
The underlying circumstances are not complex. The clerk in a convenience store watched [petitioner] collect various snacks and an 18-pack of beer and then walk out the door without paying for them. After locking up the cash register, the clerk intercepted him outside and ordered him to stop. The clerk took a step back when [petitioner] dropped everything on the ground, fearing that [petitioner] might take a swing at him, but [petitioner] only made "an irritated growl like I was bothering him" without saying anything else. [Petitioner] walked away; the clerk collected the merchandise, went back into the store, and called 911. Deputies responded about five minutes later. After a brief search of the area, they took the clerk to a motorcycle shop next door, where he identified the detained [petitioner] as the shoplifter.
[Petitioner] had an unsteady gait and the odor of alcohol about him, his speech was slightly slurred and his eyes were "glossy and bloodshot," but he seemed able to walk and talk. There also were marks on [petitioner's] face. The arresting deputy thought [petitioner] was sufficiently drunk that he posed a danger to himself or others. [Petitioner] had two 18-packs of beer with him in the parking lot; two or three cans were missing. He said he had bought them at a supermarket two to three miles down the road, and had paid $40 for them. He denied ever being in the convenience store, and said he was sitting next to the motorcycle shop because he wanted a quiet place to drink his beer.
[Petitioner] testified. A friend had bought a gallon of vodka the morning of the shoplifting, and he and [petitioner] drank most of it by late afternoon before they walked to a nearby park. When someone questioned him about his ankle monitor, [petitioner] admitted being a registered sex offender. One of the other park users came at [petitioner] aggressively, saying he did not want [petitioner's] type around the park. When [petitioner] objected to the man's demands that he leave, the man began to punch and body-slam [petitioner]. [Petitioner] incurred scrapes to his head and bruised ribs as a result. The last thing [petitioner] recalled before the deputy found him in the parking lot of the motorcycle store was walking away from the park across a bridge. He did not have any independent recollection of the shoplifting incident later that evening.
After [petitioner] testified, defense counsel requested an instruction on involuntary unconsciousness based on the blows to his head. The court ruled that it would grant the request for an instruction on unconsciousness; defense counsel assented to the text of the proposed instruction. Defense counsel also assented to the text of a proposed instruction on voluntary intoxication.
Consequently, the court instructed the jury as follows with regard to these two instructions: "To prove that the [petitioner] is guilty of [petty theft], the People must prove that: [¶] . . . [¶][w]hen the [petitioner] took the property, he intended to deprive the owner of it permanently. . . . [¶] . . . [¶] You may consider evidence ... of the [petitioner's] voluntary intoxication only in a limited way. You may consider that evidence only in deciding . . . whether the [petitioner] acted with an intent to permanently deprive the owner of the property." (Italics added.) After defining voluntary intoxication, the instructions reasserted that "the People have the burden of proving beyond a reasonable doubt that the [petitioner] acted with the intent to permanently deprive the owner of [the] property. If the People have not met this burden, you must find the [petitioner] not guilty of theft. You may not consider evidence of voluntary intoxication for any other purpose." (Italics added.) "The [petitioner] is not guilty of theft if he acted while legally unconscious. Someone is legally unconscious when he is not conscious of his actions . . . even though able to move. Unconsciousness may be caused by a blow to the head. However, voluntary intoxication causing unconsciousness is not a defense, although [ ] you may consider intoxication in determining whether the [petitioner] formed the specific intent to permanently deprive the owner of property." (Italics added.)
In his closing argument, the prosecutor first argued that [petitioner] was not drunk enough to prevent him from forming an intent to deprive the convenience store permanently of property. "[P]eople do stupid things when they drink. It doesn't mean they don't intend to do it at the time. There's a difference between an effect on somebody's judgment and somebody who is completely . . . passed out or in a complete stupor . . . where they can't form intentions." The prosecutor relied on evidence that [petitioner] "was able to navigate his way up . . . from . . . where . . . he got the other two 18-packs of beer. . . . It's about 3/4 of a mile away. The [petitioner] had the cognitive ability to locate a store where alcohol is . . . [and] locate the alcohol in the store[, and h]e was able to use the rest room"; the "cagey" manner in which [petitioner] attempted to evade the clerk in the convenience store; and his recognition that he had to leave the scene of his actions. Turning to the subject of an unconsciousness defense, the prosecutor asserted that it must have its basis in a blow to the head and not voluntary intoxication; "[s]o if the [petitioner] got so drunk that he was unconscious and is walking through that store and stealing, that's not a defense." (Italics added.) The prosecutor cited [petitioner's] ability to respond coherently to questioning immediately after the shoplifting as evidence he was conscious during the shoplifting.
Defense counsel initially connected the relevance of [petitioner's] aggravated level of inebriation to the specific intent of depriving an owner of property. He then cautioned the jury that unconsciousness does not require a stupor, merely a lack of an awareness of acting (citing the example of sleepwalkers), and pointed out that [petitioner] only growled when the clerk stopped him, and could not manage to get any farther than the wall of the neighboring business.
In rebuttal, the prosecutor again distinguished between the two theories. He reiterated that [petitioner] was not in any sort of walking coma from the scrapes on his head, nor was he so drunk he could not form the intent to steal.
(People v. Deshon, slip op. at 2-6.)
IV. 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 Estelle v. ...