The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
On December 6, 2011, Hugo Rosales ("Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). On January 11, 2012, Respondent filed an Answer and lodged the pertinent state records. Petitioner did not file a Reply.
Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. For the reasons set forth below, the Court concludes that the Petition should be denied.
A Los Angeles County Superior Court jury convicted Petitioner of attempted second degree robbery (Cal. Penal Code §§ 221, 664), with a finding that Petitioner personally used a deadly weapon in the course of the crime (Cal. Penal Code § 12022(b)(1)). Petitioner admitted several prior conviction allegations. (1 Clerk's Transcript ("CT") at 127, 129.) Petitioner was sentenced to state prison for a term of ten years. (1CT at 130-32.)
Petitioner appealed, and the California Court of Appeal affirmed the judgment as to the conviction, but reversed the findings on the prior conviction allegations because Petitioner's waiver of rights had been inadequate. The court remanded for a new trial on the prior conviction allegations. (Respondent's Lodged Document ("LD") 6.)
Petitioner filed a petition for review in the California Supreme Court (LD 7), which was denied on December 1, 2010. (LD 8.)
On March 1, 2011, Petitioner was properly advised of his rights regarding the prior conviction allegations, and he again admitted the allegations. He was re-sentenced to ten years in state prison. (LD 9.) On March 7, 2011, the trial court re-calculated Petitioner's presentence custody credits. (LD 10.)
On December 6, 2011, Petitioner filed the instant Petition.
The trial court erred in refusing to exclude "certainty of identification" as one of the factors for evaluating eyewitness identification in CALJIC No. 2.92. (Petition at 5.)
SUMMARY OF EVIDENCE AT TRIAL
On September 27, 2009, at approximately 9:50 p.m., Mauricio Garcia was near the corner of Bayview Avenue and Anaheim Street in Wilmington. (1 Reporter's Transcript ("RT") at 37-38.) He was cleaning the cart he used in selling potato chips. (1 RT at 38-39.)
Petitioner came up behind Garcia and said, "Give me all the money you have." (1 RT at 39; see 1 RT at 44.) Garcia saw that Petitioner had an eight-inch knife. (1 RT at 39-40.) Petitioner was five feet and seven or eight inches tall, Hispanic, with very short hair. (1 RT at 44.)
Petitioner tried to grab Garcia, and Garcia pushed Petitioner away with the cart. (1 RT at 40.) He touched Petitioner's body with the cart. (1 RT at 42, 48.)
Garcia ran toward Anaheim. (1 RT at 42.) Garcia saw Petitioner wanted to grab Garcia's girlfriend, so Garcia grabbed a pipe that was approximately four feet long. (1 RT at 42.) When Petitioner saw the pipe, he ran north on Bayview and went down an alley. (1 RT at 42-43.) Garcia ran after him but stopped after a short distance. (1 RT at 49.) Garcia saw Petitioner's face from arm's length away; there was plenty of light. ( 1 RT at 43.) Garcia had two minutes to look at Petitioner. (1 RT at 43-44.)
Donald Galaz was driving in the area at the time and saw Garcia and Petitioner running in circles; Petitioner was holding a knife. (1 RT at 57-59, 63.) Galaz called 911. (1 RT at 61.)*fn1 Galaz said Petitioner was short, Hispanic, and bald. (1 CT at 45; 1 RT at 59.) He appeared to be eighteen to twenty years old. (1 CT at 46.)*fn2 He was wearing a gray t-shirt and blue jeans. (1 CT at 45.) Petitioner was "winded" and was walking with a mild limp. (1 CT at 45-46; 1 RT at 65.) ...