United States District Court, C.D. California
Saul Garcia, Petitioner, Pro se, Tehachapi, CA.
For Stainer, Respondent: E Carlos Dominguez, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SHERI PYM, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On March 8, 2012, petitioner Saul Garcia, a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (" Petition"). Petitioner challenges his 2010 convictions in Los Angeles Superior Court for criminal threats.
Following petitioner's voluntary dismissal of one of the grounds he initially raised in the Petition, petitioner asserts three remaining grounds for relief: (1) the prosecution violated a court order by introducing improper evidence regarding prior incidents (Ground One); (2) the evidence was insufficient to support petitioner's convictions (Ground Two); and (3) the trial court erred in admitting evidence of prior incidents of uncharged criminal conduct (Ground Four). Pet. at 5-6.
For the reasons discussed in more detail below, petitioner's claims do not merit habeas relief. It is therefore recommended that the Petition be denied.
STATEMENT OF FACTS
On the afternoon of January 30, 2009, petitioner entered a hardware store at the Norwalk Indoor Swap Meet and spoke to store owners Marco Perez, Sr. and his two sons, Marco Perez, Jr. and Roberto Perez.
According to the Perez men, petitioner demanded some batteries and refused to pay for them. When Marco Perez, Jr. insisted he pay for them, petitioner struck him in the chest. Marco Perez, Sr. and Roberto Perez witnessed the assault and told petitioner to leave. Marco Perez, Jr. testified, as petitioner was leaving he said, " 'I'm going to come back with my homies and kill you all.'" Marco Perez, Sr. testified petitioner said " he was going to go after his homies and come back." Roberto Perez testified petitioner said, " 'I'll come back with my homies, then, and do something to you guys, '" and he also said, " 'I'm going to come back with my homies to beat you guys up.'" Each of the Perez men testified petitioner's threats caused him fear for his own safety.
The People also introduced evidence of prior incidents of uncharged conduct to prove motive and intent: In one incident petitioner drove up and demanded money from a teenager walking on the street. After the teenager surrendered his wallet, petitioner said, " Don't tell anybody. We know who you are. We'll come find you." In another incident petitioner demanded money from a store owner and then refused to leave, saying, " If you don't going [sic ] to give me money, I'm going to shoot you in the head."
Called as a defense witness, Los Angeles County Deputy Sheriff Richard Cortez testified, when they were interviewed, the Perez men quoted petitioner as saying only, " 'I'm going to be back with my gun and my homies.'" Maria Tisnado, a hardware store employee, testified she heard petitioner threaten only " to come back with his homies."
On March 11, 2010, following a jury trial, petitioner was convicted of three counts of criminal threats (Cal. Penal Code § 422). Lodged Doc. 1 (Clerk's Transcript (" CT")) at 277-79, 363. After petitioner waived his right to a jury trial on his prior strikes, the trial court found true the allegations under California's Three Strikes Law that petitioner suffered three prior strike convictions (Cal. Penal Code § 1170.12), one of which the trial court subsequently struck. Lodged Doc. 2 (Reporter's Transcript (" RT")) at 716-18, 1227-28. On April 26, 2010, the trial court sentenced petitioner to a term of twelve years in prison. CT at 363-64; RT at 1232.
On appeal, petitioner's appellate counsel failed to identify any arguable issues and so requested that the California Court of Appeal conduct an independent review under People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979). Lodged Doc. 3. Petitioner submitted a handwritten supplemental brief in which he challenged his convictions for insufficient evidence. Lodged Doc. 4 at 4. After reviewing the entire record, the California Court of Appeal found that no meritorious issues existed and, on February 23, 2011, affirmed petitioner's conviction in a reasoned, unpublished decision. Lodged Doc. 4. It appears from the record before this court that petitioner did not submit a petition for review to the California Supreme Court.
On May 10, 2011, petitioner filed a petition for writ of habeas corpus in the California Supreme Court asserting as his grounds for relief ineffective assistance of counsel as well as that the prosecution violated a court order by improperly introducing evidence of prior incidents. Lodged Doc. 5 at 3-4, 10-12. On October 12, 2011, the California Supreme Court denied the petition, citing In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953), and In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949). Lodged Doc. 6.
Meanwhile, on June 20, 2011, petitioner filed his first federal habeas petition in this court in case number CV 11-5225-DSF (SP). While that federal petition was still pending, on October 17, 2011 petitioner filed a second petition for writ of habeas corpus in the California Supreme Court, which, liberally construed, asserted the following grounds for relief: (1) there was insufficient evidence to support petitioner's conviction; (2) the trial court erred, in violation of petitioner's right to due process, by admitting evidence of prior incidents; and (3) the prosecution engaged in misconduct by introducing improper evidence regarding prior incidents in violation of a court order, resulting in a violation of petitioner's right to due process. Lodged Doc. 7 at 3-11.
On December 12, 2011, this court dismissed petitioner's first federal habeas petition without prejudice, stating that he was free to reassert his claims in a second habeas petition once he had exhausted his state court remedies and his state habeas proceedings had concluded. Garcia v. Stainer, 2011 WL 7095490, at *3 (C.D. Cal. Dec. 12, 2011). On February 15, 2012 the California Supreme Court denied petitioner's second petition for writ of habeas corpus, citing In re Dixon, 41 Cal.2d at 759, and In re Lindley, 29 Cal.2d 709, 723, 177 P.2d 918 (1947).
On March 8, 2012, petitioner filed the instant federal habeas Petition. On April 10, 2012, respondent moved to dismiss the Petition as mixed, contending that Ground Three, an ineffective assistance of counsel claim, was unexhausted because it was presented to the California Supreme Court in a procedurally defective manner. On April 26, 2012, ...