United States District Court, E.D. California
DALE A. DROZD, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein petitioner presents a single claim challenging his 2011 judgment of conviction for assault with a deadly weapon due to alleged jury instruction error. (Dkt. No. 1.) Respondent has filed an answer. (Dkt. No 12.) Petitioner has not filed a traverse. Both parties have consented to Magistrate Judge jurisdiction over this action. See 28 U.S.C. § 636(c).
On March 24, 2011, petitioner was convicted by a Sacramento County Superior Court jury of assault with a deadly weapon, in violation of California Penal Code § 245(a)(1). The jury also found the enhancement allegation that petitioner personally used a deadly and dangerous weapon in the commission of that offense within the meaning of Penal Code §1192.7(c)(23) to be true. (Clerk's Transcript (hereinafter "CT"), Lodged Doc. No. 1, filed Apr. 25, 2013 (Dkt. No. 13) at 105.) The trial court further found that petitioner had suffered three prior serious felony convictions within the meaning of Penal Code §§ 667(b) to (i) and 1170.12. (Reporter's Transcript (hereinafter "RT") Lodged Doc. No. 2, filed Apr. 25, 2013 (Dkt. No. 13) at 265-66.) Petitioner was sentenced to an indeterminate term of 25 years to life in state prison. (CT at 141.)
On appeal petitioner argued that erroneous jury instructions given at his trial regarding self-defense deprived him of a fair trial. (Appellant's Opening Brief on Appeal, Lodged Doc. No. 4, filed Apr. 25, 2013 (Dkt. No. 13)) In an unpublished opinion, the California Court of Appeal for the Third Appellate District, rejected petitioner's arguments of instructional error and affirmed his judgment of conviction. (Lodged Doc. No. 7, filed Apr. 25, 2013 (Dkt. No. 13) hereinafter "Opinion"). In so ruling the state appellate court provided the following factual summary of the case:
On June 17, 2010, close friends Levi Moses and Mario Arnold were waiting to board a Sacramento Regional Transit light rail train at a station in downtown Sacramento. Moses, age 23, was five feet nine inches tall and weighed 150 pounds. When the train arrived, Arnold attempted to board at the same time as defendant, who was carrying his bicycle. Defendant was angry, and the two exchanged words. After they boarded, defendant struck Arnold with the bicycle and more words were exchanged. Arnold asked defendant what his problem was, and defendant called Arnold some derogatory names. Arnold walked away from defendant, toward the back of the train car.
Moses boarded the train after defendant and walked past him. Defendant said some words to Moses and struck him with the bicycle. There had been no interaction between the three prior to boarding.
After defendant hit Moses with the bicycle, Moses turned around and they "got a little loud." Moses did not threaten defendant, but he removed his backpack and threw it to the ground "just in case" there was an altercation. Moses raised his fists about waist level because defendant "was coming at" Moses "like he was getting ready to hit [Moses] or something."
Moses felt what he perceived to be a push, and he believed it was defendant who had pushed him. He had not seen anything in defendant's hand.
Moses backed up, and Arnold told him he had been stabbed. Moses was bleeding from the right side of his chest. Moses held his chest in disbelief and asked someone to retrieve his backpack. He and Arnold backed away from defendant without saying anything to him. Moses and Arnold left the train at the next stop. Defendant alighted at the same stop and rode away on the bicycle.
Moses was bleeding "pretty bad[ly]." Soon the police arrived and asked him what had happened. They called for an ambulance that arrived in 10 to 15 minutes. Moses had surgery for his wound, which took about three months to heal.
Moses explained the sequence of events depicted on a compact disc of video from the train car's security camera. Based on his memory and the video, Moses was sure that defendant was the person who had stabbed him.
Arnold, age 20, testified similarly to Moses. Arnold added that defendant had called him the "N-word" in their initial confrontation. Arnold did not threaten to beat up defendant. Arnold saw defendant hit Moses with his bicycle. Moses got mad and began arguing with defendant. Moses threw down his backpack, and defendant threw down his bicycle. Defendant moved toward Moses, who got into a defensive stance. Arnold never saw a knife in defendant's hand. Nor did Arnold see Moses get stabbed; he merely assumed from Moses's condition that he had been stabbed. Arnold and Moses moved away from defendant and got off the train at the next stop.
Sacramento City Police Officer Christopher Lenert received a radio broadcast regarding the assault. He and another officer arrived one minute later and spoke with Moses. Moses lifted his shirt, which was covered in blood, and showed Lenert the wound. After telling Moses to keep pressure on the wound, Lenert called the fire department. Moses described his assailant as a male Hispanic adult, approximately 45 to 55 years old, medium build, salt and pepper hair and mustache, wearing a white T-shirt and light-colored pants, with a white bandage on his right arm. Lenert broadcast that description.
Sacramento City Police Officer Edwin Asahara was assigned to investigate this matter. After viewing the security video and reading the offense report, Asahara prepared an incident bulletin that was disseminated to law enforcement officers within Sacramento County.
Six days after the stabbing, officers who worked in an area north of downtown Sacramento advised Officer Asahara to contact defendant. Defendant's bandage and backpack drew Asahara's attention. There were no bruises or scratches on defendant's face. When showed a photograph of him, taken from the train video, defendant stated that the photograph slightly resembled him but was not him. Defendant denied having been in a fight on the train.
A search of defendant's residence revealed a bicycle consistent with the one held by the assailant who had stabbed Moses. Officer Asahara created a photographic array that included defendant's photograph. Moses viewed the array and chose two of the six individuals as most resembling the assailant. Defendant was one of the two. Then, without further prompting, Moses said his "best guess" was that the person other than defendant was the assailant. Arnold was unable to select anyone from the array.
Sacramento County Sheriff's Officer Dustin Silva spoke with Arnold at the scene and gave Arnold a ride to the hospital. Arnold said a guy had gone out of his way to push his bicycle into Arnold as they were boarding the train. Arnold added that he had told the guy not to do it and had pushed the bicycle. Arnold said Moses also pushed defendant's bicycle and, suddenly, defendant had a knife in his hand. Defendant then stabbed Moses with the knife. Arnold did not claim defendant had used foul language or had ...