United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT FOR HABEAS CORPUS
GONZALO P. CURIEL, District Judge.
On January 15, 2014, Petitioner Matthew Lloyd Chandler ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks judicial review of his conviction in San Diego County Superior Court Case No. SCD227785 for assault with a deadly weapon and burglary as well as weapons enhancements. (Dkt. No. 1.) Respondent filed an Answer on March 11, 2014 (Dkt. No. 8), and Petitioner filed his Traverse on June 23, 2014. (Dkt. No. 17.) On September 16, 2014, Magistrate Judge Bernard G. Skomal issued a Report and Recommendation ("Report") that this Court deny the petition. (Dkt. No. 18.) On October 20, 2014, Petitioner filed objections ("Objections") to the Magistrate Judge's Report. (Dkt. No. 19.)
After careful consideration of the pleadings and relevant exhibits submitted by the parties, this Court OVERRULES Petitioner's Objections, ADOPTS the Magistrate Judge's Report in its entirety, and DENIES the Petition for Writ of Habeas Corpus.
On October 28, 2010, Petitioner was charged with two counts of assault with a deadly weapon by means of force likely to produce great bodily injury (counts one and two), in violation of California Penal Code ("Penal Code") section 245(a)(1); two counts of burglary (counts three and five), in violation of Penal Code section 459; one count of making a criminal threat (count four), in violation of Penal Code section 422; and one count of grand theft of personal property (count six), in violation of Penal Code section 487(a). (Dkt. No. 9, Lodgment No. 2, vol. 1, part 2 at 104-09.) As to counts one and two, the amended information also alleged Petitioner had personally used a deadly weapon, within the meaning of Penal Code section 1192.7(c)(23), and as to counts three and four, the amended information alleged Petitioner had personally used a deadly weapon, within the meaning of Penal Code section 12022(b)(1). (Id.) In addition, the amended information alleged Petitioner had suffered thirteen prior felony convictions which rendered him ineligible for probation, within the meaning of Penal Code section 1203(e)(4), eight prior convictions for which he had served a prison sentence, within the meaning of Penal Code sections 667.5(b) and 668, one serious felony prior conviction, within the meaning of Penal Code sections 667(a)(1), 668 and 1192.7(c), and one prior "strike" conviction, within the meaning of Penal Code sections 667(b) through (i), 1170.12, and 668. (Id.)
Following a jury trial, a jury found Petitioner guilty of counts one, three, and five, and not guilty of counts two, four, and six. (Id.) Petitioner admitted he had suffered the prior convictions as alleged. (Dkt. No. 9, Lodgment No. 1, vol. 4 at 200-06.) He was sentenced to fourteen years and four months in state prison. (Dkt. No. 9, Lodgment No. 2, vol. 1, part 2 at 112.)
On July 7, 2011, counsel for Petitioner filed a direct appeal of his conviction in the California Court of Appeal, Fourth Appellate District, Division One. (Dkt. No. 9, Lodgment No. 3.) While that appeal was pending, on October 27, 2011, Petitioner filed a Petition for Writ of Habeas Corpus in the San Diego Superior Court, which the court denied on December 12, 2011 because it lacked jurisdiction due to the pending appeal. (Dkt. No. 9, Lodgment No. 3.) On January 9, 2012, Petitioner then filed a document he entitled "Supplemental Brief", and on May 21, 2012 he filed a Petition for Writ of Habeas Corpus in the state appellate court. (Dkt. No. 9, Lodgment Nos. 5, 6.) On June 5, 2012, the state appellate court consolidated the direct appeal and the habeas corpus petition. (Dkt. No. 9, Lodgment Nos. 8-9.) On October 30, 2012, the Court of Appeal ultimately affirmed Petitioner's convictions and denied the petition for writ of habeas corpus in an unpublished written opinion. (Dkt. No. 9, Lodgment No. 11.) Petitioner then filed a Petition for Review in the California Supreme Court, which was summarily denied on January 16, 2013. (Dkt. No. 9, Lodgment Nos. 12-13.)
On January 10, 2013, Petitioner filed another Petition for Writ of Habeas Corpus in the San Diego Superior Court. (Dkt. No. 9, Lodgment No. 14.) On February 14, 2013, the Superior Court denied the petition in a written opinion. (Dkt. No. 9, Lodgment No. 15.) In March 2013, Petitioner then filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. (Dkt. No. 9, Lodgment No. 16.) On March 28, 2013, the Court of Appeal denied the Petition for Writ of Habeas Corpus in a written, unpublished opinion. (Dkt. No. 9, Lodgment No.17.)
On January 15, 2014, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (Dkt. No. 1.) Respondent filed an Answer on March 11, 2014. (Dkt. No. 8.) Petitioner filed a Traverse on June 23, 2014. (Dkt. No. 17.) On September 16, 2014, the Magistrate Judge issued a Report recommending that this Court deny the petition. (Dkt. No. 18.) Petitioner filed Objections to the Magistrate Judge's Report on October 20, 2014. (Dkt. No. 19.)
This Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1). The following facts are taken from the California Court of Appeal opinion decided on October 30, 2012.
A. The People's Case
1. "Other crimes" evidence (Evid. Code § 1101(b))
Over pretrial objection, the prosecution presented evidence under Evidence Code section 1101(b) (discussed more fully, post ) that Chandler committed theft in early 2009 at a Vons store.
2. May 18, 2010 burglary and grand theft of personal property (counts 5 & 6)
Earl Hochdanner testified that at around 9:00 p.m. on May 18, he was working as a shift supervisor at a CVS store. Hochdanner walked into the storage area in the back of the store through a swinging door on which there was a sign reading, "Employees Only Beyond This Point." Hochdanner saw Chandler standing in the open doorway of the restricted liquor cage, which is a large wooden cage wrapped in chicken wire with a locked wooden door where cigarettes, liquor, and electronics were stored. The liquor cage door had a hinge that made the door shut automatically. The door handle locked automatically and, although the door could be opened from the inside without a key, a key was needed to open the door from the outside. Hochdanner observed that the liquor cage light was on and the door was open. The liquor cage door had been locked earlier and the light had been turned off.
When Chandler saw Hochdanner, Chandler first tried to close the liquor cage door, but then opened it back up again. Hochdanner testified that Chandler was wearing a large black backpack that "looked full." Hochdanner asked Chandler what he was doing in the liquor cage. Chandler replied that he was looking for the bathroom and that someone told him the bathroom was in the back. Hochdanner thought Chandler's statement was false because a store employee would have told Chandler the bathrooms were located in the pharmacy area.
Hochdanner then asked Chandler what he had taken, and Chandler responded that he had not taken anything. When Hochdanner asked whether he could look in Chandler's backpack, Chandler said, "Fuck no." Hochdanner asked Chandler to leave the store and then walked him out of the store and watched him leave.
Hochdanner testified he went back to the liquor cage to see if anything was missing and then told his manager he had caught someone in the liquor cage. Hochdanner's manager reminded him that an inventory had just been taken of the items in the liquor cage. Hochdanner checked the cigarettes and determined that 30 cartons of cigarettes, totaling about $1, 500, were missing.
Hochdanner inspected the liquor cage to try to determine how Chandler had opened the door and found that the chicken wire had been clipped next to the door frame about a foot and a half below the level of the door handle. The clipped wires looked like they had been pulled apart. Hochdanner put his arm through the hole in the chicken wire and was able to reach the door handle and open the door. Hochdanner indicated that the store was equipped with a video surveillance system, but the only camera in the rear area of the store behind the swinging doors was by the receiving door "about 100 or 200" feet away from the liquor cage and so nothing that happened inside the cage would have been video recorded. Hochdanner testified that "[w]e had video of the suspect walking in the store and walking out of the store with me." A video clip showing Chandler in the store that night was played for the jury.
3. June 3, 2010: Assault with a deadly weapon (counts 1 & 2), burglary (count 3), and making a criminal threat (count 4)
David Beeler testified that at around 4:50 p.m. on June 3, he was working as the assistant manager at the same CVS store. He went into the back storage room, opened the liquor cage with his key, turned on the light, and saw Chandler lying on his stomach inside the liquor cage. Beeler saw a few cartons of cigarettes and a beer on the floor next to a backpack, about a foot away from Chandler. As Beeler was standing in the doorway holding the door open, Chandler reached for the backpack and stood up.
Chandler told Beeler, "I don't have anything, " and opened the backpack. Beeler recognized Chandler from a photograph of Chandler taken at the store entrance on the night of the prior incident. The store manager had shown the photograph to Beeler and told him to "keep an eye out."
As Beeler was standing in the liquor cage doorway, Chandler walked toward him to get out of the cage, saying, "You ain't got me. You don't got anything on me. You can't do anything." Beeler put his hand out to stop Chandler from leaving and said, "Wait a minute. Wait, wait, wait. You're the guy from last time." Chandler then reached into the front right pocket of his pants, pulled out a standard box cutter knife, and swung it at Beeler's neck. Beeler testified that the box cutter came within about three inches of his neck. Beeler fell back "in shock" out of the liquor cage doorway, and Chandler walked out of the liquor cage and out through storage room doors into the store.
Beeler stated he followed behind Chandler and tried to call 911 from his cell phone but was flustered and misdialed a couple of times. As they passed the photo lab counter, Beeler, who was about 10 feet behind Chandler, yelled out to the photo clerk, Christina Liebelt, that Chandler tried to stab him and for her to call 911. Beeler testified he had a hard time speaking when he spoke to her, and she thought he was joking. Chandler, who became angry, stopped walking and said something like "I ain't got nothing on you" and then continued walking with Beeler again following him. Beeler testified that as they exited the store through the front entrance, Chandler told him, "You ain't nothing to me. I'll kill you. No problem." Chandler walked across a parking lot toward a bus stop with Beeler following him. Before they reached the bus stop, Chandler turned around, took the box cutter out of his pocket again, and told Beeler something to the effect that he had no problem killing Beeler, and Beeler was nothing to him. Beeler testified that Chandler threatened him with the box cutter he had used in the liquor cage, but this time it only came within about a foot and a half of Beeler's neck.
David Salo, a CVS cashier, testified he was working at the courtesy booth in the front of the store that day when he saw Beeler and Chandler walk past his register. According to Salo, Beeler and Chandler were "in a heated conversation" and a "confrontation of some type" appeared to be going on. Chandler was trying to get out of the store and was aggressively pushing Beeler. Salo testified that Beeler "was trying to delay [Chandler] until the police got there." Chandler told Beeler in a threatening way, "Get out of my way, " and Beeler said, "No, you're not going." Salo also heard Chandler make some threatening comment like "I'll hurt you." Chandler was gripping something in his hand, which Salo thought was a box cutter.
Salo followed Beeler and Chandler after they left the store, but he did not see Chandler brandish a weapon toward Beeler. Salo saw Beeler come back. Salo then got into his truck and followed Chandler. Salo stopped a police officer and gave information about the incident.
At around 5:00 p.m. that day, after being flagged down by a CVS employee in the vicinity of the CVS store, San Diego Police Officer Kristopher Spencer found Chandler a couple of blocks away. After Chandler started to walk away, Officer Spencer and another officer drew their service weapons and ordered Chandler to stop and get down to the ground. Officer Spencer took Chandler into custody "as a detention" because he fit the description of the suspect. Chandler had a plain black backpack with shoulder straps, which Officer Spencer impounded.
Officer Spencer searched the immediate area and in some small hedges about 15 feet from where Chandler dropped to the ground, the officers found a box cutter with an angled retractable blade and a pair of wire cutters, which were also impounded.
B. The Defense Case
Chandler did not testify. Christina Liebelt, the CVS employee who was working in the photo lab of the store on June 3, testified for the defense. She testified that during the incident on that date Beeler told her to call 911. Initially, she thought Beeler was kidding "because he has a dry sense of humor" and makes jokes. Beeler again asked her to call 911 and said something like "[h]e tried to kill me" or "[h]e tried to cut me." This prompted Liebelt to call 911. Liebelt testified she recognized Chandler from a picture she had seen of him. She stated she did not hear Chandler, who was trying to leave the store, make any threats.
San Diego Police Officer Daniel Vaquero testified that he investigated the June 3 incident and interviewed Beeler. Officer Vaquero testified he did not collect any video from the store because "there was no video of the assault in the back cage or in the middle of the store." When asked whether a second alleged attack took place near Liebelt's photo counter, Officer Vaquero replied, "I didn't say that it happened during [sic] the photo counter, sir." At the defense counsel's request, Officer Vaquero refreshed his ...