The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for torture, and the indeterminate sentence of life in prison with the possibility of parole. Petitioner claims there was insufficient evidence to support the torture conviction, in violation of his constitutional rights. After careful review of the record, this court concludes that the petition should be denied.
On July 28, 2009, a jury found petitioner guilty of torture, corporal injury to a child, false imprisonment, criminal threats, corporal injury to a cohabitant or parent of child, and child abuse or endangerment. (Respondent's Lodged Document ("LD") 7, Vol. 2, at 362-63.)
The jury also found true the allegation that petitioner personally inflicted great bodily injury. (Id. at 363.) Petitioner was sentenced to a determinate term of three years eight months, and an indeterminate term of life in prison with the possibility of parole. (LD 7, Vol. 3, at 608-10.)
Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal affirmed the judgment on September 24, 2010. (LD 4.)
Petitioner filed a petition for review in the California Supreme Court. (LD 5.) The California Supreme Court denied review on December 21, 2010. (LD 6.)
Petitioner filed the instant petition on January 20, 2012. (Dkt. No. 1.)
The opinion of the California Court of Appeal contains the following factual summary of petitioner's offenses.
Clara testified both she and [petitioner] were 21 and their daughter, Bryanna, FN2 was born in May 2008. [Petitioner's] mother helped with child care, but did not stay overnight. [Petitioner] worked the night shift, and he would arrive home about 7:00 a.m.
FN2. We here use baby Bryanna's first name to lend human dignity to her suffering and to humanize this opinion in which her grievous wounds are described and addressed in what to lay people must seem detached legalese. Use of initials impairs readability and comprehension, diminishes, if not, eliminates practical citation of case names, and leads to confusion for anyone who reads this opinion, especially legal researchers. It also impairs record-keeping. (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1051, fn. 2; In re Branden O. (2009) 174 Cal.App.4th 637, 639, fn. 2; In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1; Cal. Rules of Court, rule 8.401(a)(2).)
[Petitioner] was an alcoholic. He would sometimes try to quit, only to relapse, and the couple would fight about his drinking. On May 11, 2007, Clara tried to take car keys away from defendant when he was drunk, and he scratched her face with them. Clara obtained a restraining order and separated from [petitioner] for three months, but then returned to him because she loved him. On a later occasion the police took [petitioner] away because of the restraining order.
Clara testified that the couple thought having a baby "was going to make him change." They did not fight after the baby was born, but Clara left [petitioner] for a week during that period, because of his drinking.
Clara returned to work on August 11, 2008, and the plan was for her sister to take care of Bryanna while Clara was at work. However, her sister suggested it was time for [petitioner] to take responsibility for child care. [Petitioner] agreed to watch Bryanna, so Clara left the baby in [petitioner's] care, and about 11:30 a.m. Clara arrived at work.
Although Clara testified she had no concerns about the baby's safety, she told [petitioner] she would call to make sure he did not fall asleep. She also told him that if anything happened to her baby, she would leave him. She tried to reach [petitioner] by telephone from work five or six times, beginning around 12:30 p.m., but did not reach him until about 2:00 p.m. They argued, and she could hear the baby crying in the background. [Petitioner] sounded drunk, and said he had no patience and he could not get the baby to stop crying. After [petitioner] hung up, Clara called back and [petitioner] seemed normal, allaying her concerns.
Clara admitted that in her grand jury testimony, she told [petitioner] during the first call that she was going to have the "cops" or her brother check on the baby.
Clara left work early and returned home about 4:00 p.m. to find [petitioner] asleep on a couch with a beer in his hand, and the baby in a swing. When Clara saw that the baby had a bruised face, she woke [petitioner] and asked what happened. [Petitioner] said, "I didn't do anything. I don't know what you're talking about." Clara became upset and began hitting [petitioner] to get him to tell her what happened. He was drunk. He pushed her against a wall and bit her nose, causing it to bleed. He hit her in the face and grabbed her neck.
Eventually, [petitioner] said that he had dropped the baby and then said she banged her head as he was taking her out of the crib. Clara checked the baby and saw a sore near her genitals, and when she asked, [petitioner] said he had wiped the baby too hard. Clara wanted to take the baby to the hospital immediately, but [petitioner] refused to go because he was drunk, and he wanted his mother to go. Eventually, about 5:00 p.m., Clara took the baby to [petitioner's] mother's house.
[Petitioner's] mother was afraid to go to the hospital after she saw the baby's injuries, so Clara's sister accompanied Clara and the baby to the Lodi Memorial Hospital emergency room. After hospital personnel told her the baby had a 50/50 chance of survival, the baby was flown to the UC Davis Medical Center.
Clara told the police that [petitioner] threatened to kill her and the baby, but testified that she lied "[b]ecause [she] wanted him to pay for what he did." Clara testified she also lied to hospital staff when she said [petitioner] prevented her from taking the baby to the hospital. However, Clara's sister testified that when Clara got into the car, she asked Clara why she had not obtained help for Bryanna sooner, and Clara, still upset, said [petitioner] had hit her and forcibly prevented her from leaving.
Clara had not returned the prosecutor's calls, but had met with defense counsel for a couple of hours the night before her testimony -- not their first meeting -- along with [petitioner's] mother, with whom Clara regularly stays. Clara testified she still loves [petitioner].
Detective Stephen Maynard recorded an interview with Clara, and the parties stipulated the transcript was accurate. Clara said that when she saw Bryanna's vaginal injuries, she began "freaking out" because she thought [petitioner] may have "raped her or something." She began crying and yelling for help, but nobody helped her, and she concluded, "[Y]ou know what, I'm not gonna get away. I'm not." "So then I decided to tell him I loved him. And everything was gonna be okay. I was just gonna take the baby to the hospital. And that he needed to let me go so I can come back to him. 'If you would let me go' -- Because he said, 'If you leave me, I'm gonna kill you, my baby, and your family.' "
Clara also told the detective that [petitioner] would get frustrated when the baby cried, but the baby would stop crying when he gave the baby to her to hold. Once, not long before the charged incident, [petitioner] put the baby in the swing roughly, and when Clara told him she would leave him if he treated the baby like that, [petitioner] said he would kill her and her family. [Petitioner] often beat her, including when she was pregnant, but she never reported it because she was afraid he would kill her and her family.
Detective Maynard observed Clara's trial testimony, and believed she recited things, such as using the word "alcoholic" which she had never used with the officer before, and that "she's a classic domestic ...