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Thomas Mario Almanza, Iii v. Matthew Cate

April 18, 2013

THOMAS MARIO ALMANZA, III, PETITIONER,
v.
MATTHEW CATE,
RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 conviction on charges of unlawful driving or taking of a vehicle, and an enhancement based on a prior conviction for the same offense was found true. Petitioner was sentenced to four years in state prison. Petitioner claims that the trial court prejudicially erred by permitting the prosecution to present evidence of a prior auto theft to prove petitioner's identity, in violation of his due process rights. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On November 2, 2010, petitioner was charged with evading a police officer with willful and wanton disregard for the safety of persons and property (count 1), and the unlawful driving or taking of a vehicle (count 2). Count two also alleged that petitioner sustained a prior conviction for unlawful driving or taking of a vehicle. (Clerk's Transcript ("CT") at 92-93.)

On November 5, 2010, a jury acquitted petitioner of count 1, and convicted him on count 2. (CT at 154-56.) Petitioner waived his right to a jury trial on the enhancement, and the court found the enhancement was true. (Reporter's Transcript ("RT") at 260-61; 263.) Petitioner was sentenced to the upper term of four years in prison. (CT at 208, 216.)

Petitioner filed an appeal in the California Court of Appeal, First Appellate District, on February 23, 2011. (Respondent's Exhibit ("Ex.") 3.) On May 9, 2012, the Court of Appeal affirmed the conviction. (Ex. 7.)

Petitioner filed a petition for review in the California Supreme Court on June 11, 2012. (Ex. 9.) The California Supreme Court denied the petition without comment on July 18, 2012. (Ex. 10.)

Petitioner filed the instant petition on November 15, 2012. (Dkt. No. 1.) Respondent filed an answer, and petitioner filed a traverse.

III. Facts*fn1

The opinion of the California Court of Appeal contains a factual summary of petitioner's offenses:

About 12:30 p.m. on February 15, 2008, Domenic Baldacchino was advised by the Elk Grove Police Department that his 2003 red Chevrolet Silverado truck he left for recall service at Meta [sic] Chevrolet in Elk Grove had been stolen from the lot. At approximately 10:15 that night, California Highway Patrol Officer Bill Wesselman was riding in a marked patrol vehicle with his partner on Interstate 80 in Solano County when he observed the red Silverado truck, license 7G75934, traveling westbound at a speed in excess of 80 miles per hour. The officers initiated a pursuit to attempt a detention of the Silverado, with patrol vehicle lights activated. The red Silverado "cut across" lanes of traffic and "suddenly exited" the freeway on the Midway Road off ramp. The officers followed the Silverado with siren activated.

On Midway Road, the Silverado ran through stop signs, crossed over the solid double yellow line into the opposite direction of travel at least five to ten times, and exceeded 90 miles per hour. Officer Wesselman testified that as the vehicle chase continued on Midway Road he observed three occupants in the Silverado: two males in the front seat, and a female in the rear seat.

Still proceeding westbound at a speed in excess of 90 miles per hour on Midway Road between Leisure Town Road and Interstate 505, the Silverado suddenly "blacked out" as the headlights and tailights were turned off. The officers informed "dispatch" of the pursuit, but lost sight of the vehicle.

Officer David Novelli of the Vacaville Police Department heard the report that a "red Chevy pickup truck" had evaded the California Highway Patrol Officers, and assisted in the pursuit. Fifteen to thirty minutes later at 3252 Vaca Valley Road near Pleasant Valley Road, an area that "would lead" from Midway Road, Officer Novelli observed the red Silverado with a matching license plate parked in a driveway. He found keys in the ignition, but no occupants in the vehicle or nearby. Officer Wesselman arrived momentarily and confirmed that the vehicle discovered by Officer Novelli was the same one he pursued.

Heather Archibald, a resident of the house at 767 Corte Granada Lane, very near Vaca Valley Road and Pleasant Valley Road, testified that between 10:00 and 12:00 that night a female and two males, one of whom she identified as [petitioner], came to her front door and offered her $100 for a ride to Dixon. Archibald declined the offer and shut her door.

Michelle Wohler, a driver for Yellow Cab of Vacaville, was dispatched to meet passengers "in the court" at 767 Corte Granada Lane some time after 9:00 that night. On the way there, she encountered numerous police officers and a helicopter flying above. She spoke with a Vacaville Police Officer Andy Moriarty, then proceeded to the house. Officer Moriarty then "blacked out" his patrol vehicle and waited for her to return. Wohler waited at the house briefly, whereupon two males and a female, "all Mexican," came out of a back yard and knocked on the passenger side of her cab. After they got into the back seat, Wohler began to drive her cab away.

Officer Moriarty, who was waiting for the "taxi to exit the court," detained the cab and immediately arrested the three occupants as suspects in the pursuit of the Silverado. [Petitioner] mentioned that he was from Elk Grove. He stated that the "female he was with" told him "about a party in the area of Vacaville." [Petitioner] volunteered that he had been "dropped off by his cousin," who was driving a black Ford Expedition and was waiting for him at a Wal-Mart in Dixon.

During a subsequent interview at the California Highway Patrol office, [petitioner] stated that earlier in the evening his uncle picked him up at his house in the Sacramento area in a "Ford SUV," to go "to a party." They left [petitioner's] house, but "didn't make it to the party." [Petitioner] then invoked his Miranda rights and refused to make any further statements.

The prosecution also presented evidence of a prior uncharged vehicle theft and police pursuit. The sales manager for the Lasher Elk Grove Acura dealership testified that a new Acura MDX arrived at the dealership on January 29, 2008. The car was "inventoried" and placed, unlocked, in the service department lot for inspection and detailing the next day. The keys to the ignition were placed on an unsecured keyboard at the dealership. The sales manager did not report the vehicle stolen, but a few days later he received information that the Acura MDX had been recovered by the police.

About 11:45 p.m. on February 1, 2008, Police Officer Daniel Gill of the West Sacramento Police Department was in a marked patrol vehicle in the parking lot of an apartment complex on Lighthouse Drive when he noticed a new Acura MDX with "Lasher Acura paper plates," but not the typical "temporary DMV registration," on the front windshield. As Officer Gill made a U-turn he observed the Acura leave the parking lot and proceed eastbound on Lighthouse Drive. As the officer engaged his overhead lights the Acura accelerated to 65 miles per hour over the I Street Bridge, then straddled the double yellow line on the roadway and ran red lights. After the officer activated his siren, the driver of the Acura entered Interstate 5, accelerated to 90 miles per hour, turned off his lights, and nearly collided with a truck. When the Acura turned eastbound onto Interstate 80, with heavier traffic, Officer Gill "decided to cancel the pursuit." He advised dispatch and a Sacramento Police helicopter of his location. The Acura took the Northgate Boulevard exit as it pulled away from the officer, and the lights were turned back on.

Officer Daniel Paiz of the Sacramento Police Department learned of the pursuit and observed the police helicopter overhead. He saw the Acura stop at an apartment complex at 801 San Juan Avenue. The driver left the vehicle and fled into the apartments. Officer Paiz followed, and came upon muddy footprints leading to the patio area of one of the apartments, where the driver "was last seen." The patio door was recently opened and "stuff was moved to the ...


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