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Heredia v. Lizarraga

United States District Court, C.D. California

June 16, 2015

DAVID HEREDIA, Petitioner,
v.
JOE A. LIZARRAGA, Warden, Respondent.

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITH PREJUDICE

JACQUELINE CHOOLJIAN, Magistrate Judge.

I. SUMMARY

On August 11, 2014, David Heredia ("petitioner"), a state prisoner who is proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254, with an attached memorandum ("Petition Memo"). Petitioner challenges a judgment in Los Angeles County Superior Court. On December 12, 2014, respondent filed an Answer and a supporting memorandum ("Answer").[1] Petitioner did not file a Reply. The parties have consented to proceed before the undersigned United States Magistrate Judge.

For the reasons stated below, the Petition is denied, and this action is dismissed with prejudice.

II. PROCEDURAL HISTORY

On June 6, 2012, a Los Angeles County Superior Court jury found petitioner guilty of three counts of oral copulation or sexual penetration of a child ten years of age or younger (Cal. Penal Code § 288.7(b); counts 1, 4 & 7), six counts of sexual intercourse or sodomy with a child ten years of age or younger (Cal. Penal Code § 288.7(a); counts 2, 3, 5, 6, 8 & 9), one count of committing continuous sexual abuse of a child under the age of fourteen (Cal. Penal Code § 288.5(a); count 10), one count of aggravated sexual assault of a child under fourteen years of age by sexual penetration (Cal. Penal Code § 269(a)(5); count 11), and two counts of aggravated sexual assault of a child under fourteen years of age by rape (Cal. Penal Code § 269(a)(1); counts 12 & 13).[2] (CT 52-69 [information] 217-29 [verdict forms], 238-43 [minutes]; Lodged Doc. 6 at 2).

On July 26, 2012, the trial court sentenced petitioner to a total of 55 years to life in state prison, consisting of a term of 25 years to life on count 2 and two consecutive 15 year to life terms on counts 11 and 13. (CT 284-94; Lodged Doc. 6 at 3). The court imposed concurrent terms on counts 4-9 and imposed but stayed sentences pursuant to California Penal Code Section 654 on counts 1, 3, 10 and 12. (CT 294-94; Lodged Doc. 6 at 3).

On December 9, 2013, the California Court of Appeal, on the stipulation of the parties, vacated the conviction on count 10, further ordered that the judgment be modified/corrected in non-pertinent part, and otherwise affirmed the judgment in a reasoned decision. (Lodged Doc. 6). On March 12, 2014, the California Supreme Court denied review without comment. (Lodged Doc. 8).

III. STANDARD OF REVIEW

This Court may entertain a petition for writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).[3]

In applying the foregoing standards, federal courts look to the last reasoned state court decision. See Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert. denied, 133 S.Ct. 1831 (2013). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (cited with approval in Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013)); Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to "look through" summary denials of discretionary review to the last reasoned state-court decision), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001 (2014).

IV. DISCUSSION[4]

Petitioner claims he is entitled to federal habeas relief because the trial court erroneously failed to dismiss counts 1-3 which assertedly are lesser included offenses of counts 11-13. (Petition Memo at iii, vi). The California Court of Appeal - the last state court to issue a reasoned decision addressing this claim - rejected it on the merits on direct appeal. (Lodged Doc. 6 at 6-11). Petitioner is not entitled to federal habeas relief on this claim.

A. Background[5]

The information charged three separate, but consecutive, time periods during which the crimes were committed: September 1, 2009, and August 31, 2010; September 1, 2010, and August 31, 2011; and September 1, 2011, and November ...


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