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Broadnax v. Livingston

United States District Court, N.D. California

February 10, 2015

DAVID LIVINGSTON, Contra Costa County Sheriff, Defendant.


WILLIAM ALSUP, District Judge.


Petitioner, a state prisoner represented by counsel, moves for collateral relief under Section 2254. For the reasons stated below, the petition is DENIED.


At the time he filed his petition, Bomani Broadnax was incarcerated at West County Detention Facility in Contra Costa County. Pursuant to Section 2254 of the United States Code, he moves for writ of habeas corpus challenging a California state court proceeding. Petitioner is represented by counsel. Double jeopardy is the issue.

On April 2, 2008, the Contra Costa County District Attorney filed a juvenile wardship petition against petitioner pursuant to Welfare and Institutions Code Section 602(a). In count one, petitioner was charged with attempted murder, in violation of California Penal Code Sections 187 and 664. With respect to count one, the wardship petition also alleged special enhancements of intentionally discharging a firearm (California Penal Code Section 12022.53) and personally using a handgun (California Penal Code Section 12022.5(a)(1)). Count two charged petitioner with assault with a firearm, in violation of California Penal Code Section 245(a)(2). Count two also alleged sentencing enhancements of personally using a handgun and personally inflicting great bodily injury (California Penal Code Section 12022.7(a)).

On appeal from the conviction, the unpublished opinion of the California Court of Appeal stated (Resp. Exh. A at 2-3):

On January 22, 2008, police responded to shots fired call near 17th Street in Richmond. At the scene, officers found a vehicle crashed into a house. Officers noticed the rear window of the vehicle was shattered and inside found Mable Stallworth sitting in the front driver seat, disoriented and bleeding from the back side of her head. Before she was transported to hospital, Stallworth was able to tell police that she was traveling west on Ohio Avenue, heard a loud bang, lost consciousness momentarily and woke when her vehicle crashed. Stallworth's condition was listed as serious with bone fragments to her brain. A neighbor informed police he saw a green Buick racing away from the area where the shots were fired.
On March 27, 2008, Richmond Police received information on the shooting in an interview with Alex Joseph. Joseph told police that on the day of the shooting, he was driving his green Buick when he saw a blue van with tinted windows. Joseph knew the van belonged to a person he was feuding with and noticed the van had begun to follow his vehicle. After the van pulled behind Joseph's vehicle, the passenger in the right front seat of the van leaned out of the window and began shooting at him. Joseph stated that the first two shots missed his vehicle and hit the car in front (Ms. Stallworth's vehicle), and the second two shots hit the Buick. After the shooting, the blue van fled the scene. Joseph told police that he recognized the shooter as Bo Mony. In a second interview on March 27, 2008, Joseph identified [petitioner] from a photographic lineup.
On March 30, 2008, police responded to a shots fired call in the area of 18th Street and Bissell Avenue in Richmond. Citizens informed officers that a black male, later identified as [petitioner], was involved in the shooting and that he ran into a residence on Chanslor Avenue carrying a long gun. When officers went into the residence on Chanslor Avenue, the owner, [petitioner's] grandfather, told police [petitioner] ran into the house and then immediately left. [Petitioner's] grandfather consented to a search of the premises. Police found ammunition in [petitioner's] room and a SKS type 56 rifle in his brother's bedroom.
On March 31, 2008, [petitioner] was stopped for driving without a license and subsequently placed under arrest for attempted murder. When questioned by police, [petitioner] denied any involvement in the drive by shooting on January 22, 2008. Later, [petitioner] admitted he was in the van that chased the green Buick but said that a person named Michael was the shooter.

Petitioner pled no contest to assaulting Joseph and Stallworth with a firearm and personally inflicting great bodily harm on Stallworth (Resp. Exh. A at 4). The state trial court found that petitioner knowingly and voluntarily pled no contest, reviewed the evidence, and committed petitioner to the California Division of Juvenile Justice for a term of five years (Resp. Exh. A at 7).

On January 5, 2011, the Division of Juvenile Justice placed petitioner on juvenile parole under the supervision of his father. Subsequently, however, petitioner picked up new charges for carrying a loaded firearm near the funeral of a rival gang member in Contra Costa County Juvenile Court, all pursuant to a petition under California Welfare and Institutions Code Section 777. The juvenile court granted the prosecutor's motion to dismiss the Section 777 petition without prejudice. The prosecutor then brought an amended wardship petition with the same court under Section 602, which was dismissed without prejudice. Two months later, the prosecutor orally moved on the record to increase the original 2009 five-year commitment based on new circumstances (loaded firearm near the funeral of a rival gang) pursuant to Sections 731(c) and 779 (Resp. Exh. C). Section 779 authorizes a court committing a ward to the California Youth Authority to thereafter change, modify, or set aside the order of commitment. Under Section 731(c), this commitment cannot be increased to an amount of time greater than the maximum period of imprisonment that could be imposed on an adult convicted of the same offense.

After considering the arguments from both sides, the juvenile court modified the original commitment to add an additional five years to the commitment for a total of ten years, still less than the 17-year maximum allowed for the original offense.

Now comes the double jeopardy problem. On August 16, 2012, petitioner was indicted and charged as an adult with violating California Penal Code Sections 182(a)(1)/245 (conspiracy to discharge a firearm), 182(a)(1)/245(b) (conspiracy to commit an assault with a semiautomatic firearm), 2800.4 (evading a peace officer), and 186.22(a) (criminal street gang terrorism). The indictment also alleged that petitioner committed the crimes to benefit a criminal street gang. It is uncontested that these charges ...

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