United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS(Doc. 1)
JENNIFER L. THURSTON, 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.
Petitioner is in custody of the California Department of Corrections and Rehabilitation serving an indeterminate sentence of life with the possibility of parole plus one year. This sentence was imposed by the Tulare County Superior Court after his conviction for one count of attempted murder (Cal. Pen. Code §§ 664/187), and one count of leaving the scene of an accident (Cal. Veh. Code § 20001(a)). (Doc. 18, Lodged Documents ("LD") 4, pp. 1-2). The jury also found that Petitioner had personally used a deadly weapon within the meaning of California Penal Code § 12022(b)(1), and that he had caused great bodily injury within the meaning of California Penal Code § 12022.7(a). (Id.).
Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed his conviction. (LD 4). Petitioner then filed a petition for review in the California Supreme Court that was summarily denied on June 10, 2009. (LD 5; 6). Afterward Petitioner filed a variety of state habeas corpus petitions that, ultimately, were denied. (LD 7-14).
The instant petition was filed on February 14, 2012. (Doc. 1). Respondent filed the Answer on May 8, 2012. (Doc. 17). Petitioner has not filed a Traverse.
Respondent does not argue that any of the claims in the instant petition remain unexhausted.
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
On July 21, 2006, Corona came by a house in Porterville where Salvador Calderon Amezcua (Calderon) was staying for a few days. Corona was going to clean the yard. Calderon told Corona he did not want to help Corona clean the yard because he was only going to be there a few days and Corona was being paid to do it. Corona became angry and started to pick a fight with Calderon. Calderon did not want to fight because he was "in a program" as a result of being on felony probation. Corona said he was going to kill Calderon and drive his car into him. Corona left.
Corona returned to the house 15 to 20 minutes later. Corona was "very angry" with Calderon; he claimed Calderon was saying things about him that were not true. Calderon denied saying anything about Corona. Corona again said "I'm gonna kill you" and told Calderon to get into Corona's car so they could look for the person who was saying things about Corona. Calderon got into the car with Corona because Corona was very angry and he did not want to fight or have any problems with Corona, since Corona already had threatened him. The car, a brown Cougar, was the same car Corona had bought from another individual earlier that month. According to Calderon, the car was not damaged.
As Corona drove, he and Calderon were still having a conversation, but were not arguing; Corona, however, was "very angry." Five to ten minutes later they found the other person, who Calderon knew only as "Chalechepo, " on a bike in the street. Corona, who still was very angry, got out of his car and confronted Chalechepo, who had gotten off his bike. Calderon, who also had gotten out of the car, told them not to fight. When Corona and Chalechepo started to punch each other, Calderon left because he was on probation and did not want any trouble. According to Calderon, Corona was not acting like himself that day; he was always such a "nice person" but that day Calderon did not recognize him at all. Calderon saw Corona with a beer that day, but did not know if his abnormal behavior resulted from alcohol consumption.
Armando Garcia, a field worker, testified that around noon that day, he was riding his red bicycle around Porterville. Around 12:15 p.m., Garcia saw Corona and Calderon, who he knew as Salvador, together in a car. Garcia had a conversation with Corona, who he knew from work. As they were talking, Corona was drinking a beer, but Garcia did not notice if Corona was drunk. Garcia explained that Corona had become upset when another person began to laugh at him because a car had been taken from him. When Corona was talking to the other person, the other person said Garcia had said something, so Corona had come to ask Garcia "what was up." Garcia believed Corona's problem was with Calderon, but Corona came to him demanding whether he had said it. According to Garcia, Corona and Calderon were talking about Corona's car being towed, and Garcia called Corona a "crybaby" because his car had been taken from him.
Corona asked Garcia if he had said anything disparaging and Garcia said "No." Garcia testified they had an argument, and might have shoved each other and exchanged words, but he denied they hit each other. Garcia did not want any trouble and thought they were done, so he hopped on his bicycle and left the scene.
Garcia was heading to his house, thinking the confrontation was finished, when Corona hit him from behind with his car. Garcia was lying on the ground and losing a lot blood. An ambulance came. Garcia testified he was unable to breathe at certain points and "they were pumping" him. He thought he was going to die. His forehead was cut from the right eye to the center of his ear. He also hurt his arm and, at the time of trial, could not close his hand all the way. He received stitches and staples and was in the hospital for five days.
That day, Deydre McRoberts was visiting her cousin, Betty Watson, who lived in Porterville. Around noon, Watson saw "some guys" in a car stop and a man on a bicycle turn around and approach the driver's side of the car. McRoberts also saw the man on a bicycle and the car's driver stop in the street. The driver got out of the car holding a beer. The two men argued in Spanish. Watson called the police. As the man got back on the bicycle, the car's driver threw his beer at him and began to hit him in the head. The two began fighting; they were punching each other. The car's driver got into his car and the other man got back on his bike and took off riding. The car did a U-turn "real fast" and went in the same direction as the bicycle rider. The men then went out of the women's sight.
Johnny Plumlee, a manager at a Porterville automobile parts store, was walking back to the store at the end of his lunch break that day. As he came to an intersection, he saw in the middle of the road a bicycle and a vehicle with the door open, and two men having a fistfight. The men were throwing punches when a car stopped by and broke up the fight. Plumlee then saw one of the men start to push a red bicycle.
Plumlee continued walking on one side of the road. The man on the bicycle was on the sidewalk on the other side of the road; he was sitting on the seat propelling the bicycle with his feet on the ground. Plumlee heard a car accelerate; he turned to look and saw the car, which he estimated was traveling between 35 and 40 miles per hour, jump up on the curb and hit the man on the bicycle. The bicyclist hit his head on the passenger's side of the windshield and flew off the car about 15 yards into a wooden fence as the bicycle ended up under the car. The car also smashed into a metal mailbox that was cemented into the sidewalk. When the car's driver could not get his car into gear, he shut the engine off and walked away "like nothing had happened." While Plumlee was trying to get someone to call 911, the driver, who Plumlee identified as Corona, walked right past him.
Lewis Riley, a tow truck driver from Porterville, was heading back to his shop when he saw a car parked sideways on the curb, a man lying on the ground, and a bicycle lying underneath the car. Lewis stopped to assist and saw the man was lying face down in a puddle of blood. It looked like the man could not breathe, so Lewis got a towel, rolled him over, and saw a large gash in his head exposing the skull. Lewis put pressure on the wound and called his shop, telling them to call 911.
A Porterville Police Department community service officer responded to the scene. He saw a car parked sideways on the street that had a bicycle under the car's front end. Porterville Police Detective Carl Jordan also responded to the scene and began his investigation. Around 6:30 that night, Detective Jordan located Corona at his house. As he pulled up, he saw Corona sitting in the back of his driveway by a building drinking a can of beer. Corona appeared intoxicated and had trouble supporting himself. Corona appeared not to comprehend what the officers were telling him as they arrested him. Detective Jordan conducted an in-field viewing or show-up. Witnesses Watson and McRoberts were brought to Corona's house; both separately identified Corona as the car's driver. Another officer brought Plumlee to the in-field show-up, who also identified Corona as the driver. Detective Jordan placed Corona under arrest, took him to the police substation for booking, transported him to a hospital to get blood drawn, and then delivered him to the main jail.
Porterville Police Officer Sam Garcia interviewed Armando Garcia, the victim, at the hospital soon after he was taken there. Officer Garcia thought the victim was being uncooperative and didn't want to answer questions. The victim said nothing happened and he just fell off his bike. The next day, the victim picked Corona's picture out of a photo lineup and told the officer Corona's name.
On July 22, 2006, Porterville Police Detective Sonia Silva interviewed Corona following waiver of his Miranda rights. Detective Silva had contacted Corona the day before, but he was too intoxicated to be interviewed. Corona said he was just driving to his sister's house when a bicyclist pulled out in front of him. Corona admitted he consumed three beers before driving that day and said he was thinking clearly when driving. Corona claimed he did not hit the victim very hard and he went to a nearby store to call an ambulance, but when he heard sirens he decided not to call. Corona admitted he did not render aid to the victim. Corona also said he went to the store to buy more beer, and that he left the scene because he was scared and knew he would be arrested. Detective Silva told Corona his statement might not fit with other information she had. Corona admitted talking to the victim before the collision but denied having an argument or being angry. Corona explained the discussion was about the victim making fun of him because his vehicle had been taken away from him, so he would have to get around on foot. Corona insisted he did not intend to hit the victim and it was an accident, as he was looking in the other direction and the victim veered in front of him. Corona denied having more beers when he returned to his house.
Toxicologist Jen Kearney testified that Corona's blood sample contained.30 percent blood alcohol concentration, which is a little over three times the legal limit. Kearney explained that between.30 and.40 percent it is possible to see [sic] unconsciousness or coma, but that depended on the individual's tolerance. Someone with a.30 blood alcohol content generally would have lowered inhibitions and social restraints, which could cause the person to spontaneously do things they otherwise wouldn't or to carry out an "obsessive idea." At that level, it would be very difficult, if not impossible, to conceive of a plan and act on it.
If a five foot six or five foot eight tall, 185 pound man's blood tested at.30 when drawn at eight p.m., his blood alcohol content at 12:00 p.m. would have been approximately.42 or.44, assuming he did not consume any alcohol after noon. If the person had seven 12-ounce beers between noon and eight p.m., his blood alcohol would remain the same at noon and at eight ...