United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
MICHAEL J. SENG, 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. Respondent, acting warden of California Correctional Institution in Tehachapi, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Caely Fallini of the office of the California Attorney General. Petitioner declined magistrate judge jurisdiction on March 15, 2013. (ECF No. 5.)
I. PROCEDURAL BACKGROUND
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction following a jury trial on July 15, 2009, for possession of a weapon while confined in a penal institution with enhancements for prior convictions under California Three Strikes Law. (Clerk's Tr. at 87.) On August 11, 2009, Petitioner was sentenced to a determinate term of nine years in state prison. (Id.)
Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, on March 23, 2010. (Lodged Doc. 1.) On December 29, 2010, the appellate court affirmed the conviction but reversed the trial court's findings regarding Petitioner's prior convictions. (Lodged Doc. 3.) Petitioner sought review by the California Supreme Court on February 9, 2011. (Lodged Doc. 4.) The petition for review was summarily denied on March 16, 2011. (Lodged Doc. 5.) Petitioner next filed a petition for writ of certiorari with the United States Supreme Court on February 7, 2012. (Lodged Doc. 6.) The petition was denied on February 21, 2012. (Lodged Doc. 7.)
Petitioner filed his federal habeas petition on February 19, 2013. (Pet., ECF No. 1.) The petition raised a single ground for relief, namely, that California Penal Code § 4502 is unconstitutionally vague and should not be applied to the possession of razor blades, which may be used for other purposes than as a weapon.
Respondent filed an answer to the petition on June 12, 2013. (Answer, ECF No. 11.) Despite requesting extensions of time, Petitioner did not file a traverse to the answer.
II. STATEMENT OF THE FACTS
On February 3, 2009, appellant was transferred to California Correctional Institution (CCI) in Tehachapi from a San Bernardino County jail. As part of inmate reception procedures, inmates must pass through a walk-through metal detector wearing only their underwear. When appellant passed through, he set off the metal detector alarms. Supervising Sergeant William Kelly asked appellant if he had any contraband. Appellant admitted he had razor blades, and was escorted to the restroom, where he removed the finger of a glove, tied off at the end, from his rectum. Inside the glove finger were a number of items, all wrapped in toilet paper and cellophane: 11 single razor blades, apparently removed from disposable shavers; one razor blade still in the plastic casing of a shaver head with the handle broken off; a piece of paper with addresses and telephone numbers written on it; and magazine clippings.
Appellant was charged with one count of possession of a sharp instrument while confined in a penal institution, with two special allegations regarding appellant's prior strike conviction and his prior prison term served.
At the pretrial hearing, with appellant present, the trial court confirmed with defense counsel that appellant was going to admit his prior strike allegation and prior prison term when he testified at trial and the jury was not going to try the priors. The trial court also ruled on the use of appellant's prior felony convictions for purposes of impeachment, permitting the prosecution to use three of appellant's prior convictions, and excluding one of his two 2005 convictions, as it was too similar to the other 2005 conviction. The court noted the allowed prior convictions were for crimes of moral turpitude and would impact appellant's credibility. The court also noted the convictions were recent or close in time to releases from prison. Finally, the court noted the current charge was dissimilar to the priors and appellant's decision to testify would suffer no impact from allowing the prosecution to present evidence of his prior convictions. No mention was made of a gang enhancement to one of the prior convictions at that time.
At trial, Officer Richard Hetzel and Lieutenant Jeffory Gentry testified that certain prisoners were allowed to possess disposable shavers, depending on their classification level within the prison. Appellant, however, being slated for "Administrative Segregation, " was not allowed to have any razors in his possession. The correctional officers also testified as to the potential use of exposed razors as weapons or slashing instruments. No inmate is permitted to possess razor blades removed from the disposable shaver casing. All inmates are issued the same type of shaver throughout the prison.
Upon taking the stand, the court advised appellant of his right to remain silent, but appellant chose to continue with his testimony. He then admitted he was currently incarcerated for robbery, and had prior convictions for auto theft and methamphetamine possession for sale.
Appellant also testified he had previously been incarcerated at CCI and believed the razor blade quality there to be inferior to the razors he received in San Bernardino. He intended to bring the razors solely for shaving. He had brought multiple razors because he did not want to wait for his family to put money into his account so he could buy razors from the canteen.
On cross-examination, the prosecution brought up appellant's robbery conviction again, asking, "isn't it right that that robbery conviction was committed for the benefit of a criminal street gang?" Defense counsel objected on relevance grounds, which the court initially sustained, but after an unreported discussion, the court allowed the prosecution to move forward with the question. Appellant then admitted he was convicted of robbery for the benefit of a criminal street gang. Later, the court put on the record the unreported discussion. Defense counsel argued admission of the enhancement was more prejudicial than probative since there was no gang enhancement for the offense at bar. The prosecution argued the gang enhancement was a separate charge, which had been found to be true. The court allowed the admission and noted the gang enhancement was also a crime of moral turpitude and relied on the same reasoning as it had in allowing the prior convictions.
The jury instructions stated the jury could consider "evidence that the object could be used in a harmless way in deciding if the object is a sharp instrument." (CALCRIM No. 2745.) While deliberating, the jury asked the court for a legal definition of "sharp instrument." The court explained there was no legal definition of the phrase and directed the jurors to the jury instruction, which stated in pertinent part, "[w]ords and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings." The jury then noted a discrepancy in the wording between the verdict form and the jury instructions on the elements of the crime. The verdict form used the word "weapon" whereas there was no mention of "weapon" in the instructions, only "sharp instrument." The trial court modified the verdict form to conform to the instructions, removing mention of the word "weapon." The jury then found appellant guilty of possessing a sharp instrument while in a penal institution. After the jury was excused, appellant expressly admitted his prior strike conviction and his prior prison term alleged in the information.
People v. Guzman, 2010 Cal.App. Unpub. LEXIS 10304, 3-7 (Dec. 29, 2010).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor , 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Kern County Superior Court, which is ...