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Newton v. Foulk

United States District Court, C.D. California

January 14, 2015

ARNOLD NEWTON, Petitioner,
v.
F. FOULK, Warden, Respondent

Arnold Newton, Petitioner, Pro se, Susanville, CA.

For F. Foulk, Warden, Respondent: Alene M Games, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

SUMMARY OF RECOMMENDATION

Arnold Newton (" Petitioner"), a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254(d), challenging his conviction for attempted first-degree murder in Los Angeles County Superior Court. On habeas review, Petitioner sets forth three claims of alleged constitutional error: (1) insufficient evidence supporting Petitioner's gang-related sentencing enhancement; (2) insufficient evidence supporting Petitioner's attempted first-degree murder conviction; and (3) erroneous denial of Petitioner's request to disclose juror names and addresses. As discussed below, Petitioner's claims fail on their merits. Accordingly, the Court recommends the Petition be denied.

II.

PROCEDURAL HISTORY

On May 6, 2011, following a jury trial of Petitioner in California Superior Court for the County of Los Angeles, Petitioner was convicted of attempted firstdegree murder, in violation of California Penal Code sections 187(a) and 664. Lodgment (" lodg.") No. 5 at 210.[1] The jury also found the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members, for the purposes of a sentencing enhancement under California Penal Code section 186.22(b)(1)(C). Id. On February 9, 2012, the trial court sentenced Petitioner to fifty-five years to life in state prison. Id. at 290.

On April 11, 2013, the California Court of Appeal affirmed Petitioner's conviction on direct appeal in a reasoned decision. Lodg. No. 2. On June 26, 2013, the California Supreme Court summarily denied review of the appeal. Lodg. No. 4.

On May 28, 2014, Petitioner filed the instant Petition and an accompanying attachment (" Petitioner's Memorandum") with this Court, raising three grounds in support of his claim to federal habeas relief. (ECF Docket No. (" dkt.") 1; 2). On November 12, 2014, Respondent filed an Answer to the Petition, with an accompanying Memorandum of Points and Authorities (" Respondent's Memorandum"). (Dkt. 19). On January 12, 2015, Petitioner filed a Traverse to the Answer. (Dkt. 23). The matter thus stands submitted and ready for decision.

III.

RELEVANT FACTS

In its reasoned decision affirming Petitioner's conviction on direct appeal, the California Court of Appeal summarized the evidence presented at Petitioner's trial. See Lodg. No. 2. Petitioner has not challenged the Court of Appeal's summary and thus, it is " presumed correct, " absent rebuttal by the Petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) (" Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.") (internal citations and quotation marks omitted). The Court of Appeal's summary is excerpted below:

In the summer of 2010, Erika Jones lived in the Watts Arms Housing Complex with her young daughter. Erika's boyfriend, Dennis Hobson, stayed with her from time to time. Dominica Ealy and her daughter were also staying in the apartment. Appellant was the father of Dominica's child.
At the end of June or the beginning of July, someone broke several windows in Erika's residence. Erika believed that appellant was involved. Dominica gave Erika $250. They did not discuss the purpose of this payment. Erika believed that it was compensation for the broken windows. Dominica believed it was rent.
As a result of the broken windows, Erika's landlord told her that he needed to inspect her residence. He reminded her that she was not allowed to have other people living with her.
On July 15, 2010, Erika told Dominica that Dominica needed to leave for a few days, until the inspection was over. Dominica said that she had just given Erika $250 and it would not be easy for her to leave. Erika insisted. Dominica walked out. Shortly thereafter, a friend of Erika's came in and said, " Dominica outside, talking mess."
Erika went outside and asked Dominica if there was a problem. Dominica said there was not. Erika and her daughter then walked toward the complex's playground. Appellant came up to Erika and told her that if she did not give the $250 back to Dominica, he would snatch the gold chain off her neck. They argued for a few minutes, then appellant walked away.
Soon, appellant returned and started arguing with Erika again. Hobson walked up to see what was happening. Appellant said he was angry because his " baby mama was getting put out." Hobson tried to calm appellant down and explain the situation. He was not successful. Four or five gunshots were fired, hitting Hobson. Hobson ran toward the apartments and appellant ran in the same direction.
Los Angeles Police Officer Ivan McMillan investigated the scene and canvassed the area for witnesses and evidence. He did not obtain any information.
Los Angeles Police Officer Tim Pearce interviewed Erika and Hobson after the shooting. Unbeknownst to Erika and Hobson, the interviews were recorded. The recordings were played at trial and transcripts were entered into evidence.
Erika told police that appellant was the shooter. She also told police that appellant said, " On Baby Loc Crip if you don't give my baby mama $250, it's gonna be a problem, woo, woo." She also said that appellant said, " I'm like on G--O and Grape Street, if you don't give my baby mama $250 there's gonna be problems." Erika understood these statements as " banging" on her and Hobson.
Hobson told police that appellant was the shooter and identified appellant in a six-pack photographic lineup. Hobson told police that he would not testify that appellant shot him, however, as this " would make it all bad for ...

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