United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. MCDERMOTT, UNITED STATES MAGISTRATE JUDGE
March 11, 2015, Rudolph Aguilar ("Petitioner"), a
prisoner in state custody, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254
("Petition" or "Pet."). On June 12, 2015,
Respondent filed an Answer and lodged the pertinent state
records. Petitioner did not file a Reply. The matter is ready
to 28 U.S.C. § 636(c), the parties consented to proceed
before this Magistrate Judge. The matter is now ready for
decision. Having reviewed the pleadings and the lodged
records, the Court concludes that the Petition must be denied
and this action dismissed with prejudice.
Angeles County Superior Court jury convicted Petitioner of
assault with a deadly weapon (count 1) and assault by means
of force likely to produce great bodily injury (count 2).
(Cal. Penal Code § 245(a)(1).) In a bifurcated
proceeding, the trial court found that Petitioner had a prior
“strike” conviction under the California Three
Strikes Law (Cal. Penal Code §§ 667(b)-(i),
1170(a)-(d)) and a prior serious felony conviction (Cal.
Penal Code § 667(a)(1)). Petitioner was sentenced to
eleven years in state prison. (Clerk’s Transcript
(“CT”) at 122, 151-55.)
appealed to the California Court of Appeal.
(Respondent’s Lodged Documents (“Lodg.”) 3,
5.) On May 15, 2014, the California Court of Appeal vacated
Petitioner’s conviction in count 2 but affirmed his
conviction in count 1. (See Lodg. 6.)
filed a petition for review in the California Supreme Court
(Lodg. 7), which was denied on August 13, 2014 (Lodg. 8).
March 11, 2015, Petitioner filed the instant Petition.
OF THE EVIDENCE AT TRIAL
on its independent review of the record, the Court adopts the
following factual summary from the California Court of
Appeal's unpublished opinion as a fair and accurate
summary of the evidence presented at trial:
On the evening of December 14, 2011, Jeffrey Lotz was
homeless and preparing to go to sleep beside train tracks
near the intersection of North Huntington Drive and Santa
Anita Avenue in Arcadia. Earlier that evening he had been
with appellant, who also was homeless, behind bushes at a
nearby carwash. Appellant came out from around a bush and
told Mr. Lotz that he had to move. Mr. Lotz asked what was
wrong. Appellant said he was in his spot, and could not sleep
there. Mr. Lotz said that he had been given permission by
appellant to sleep in that location. Appellant repeated that
Mr. Lotz had to move. Mr. Lotz began to gather his
belongings, which were near a four foot by six foot concrete
electrical box with a metal cover. The two men used the box
to store items. Appellant was standing next to a two inch by
one inch piece of wood, 39 inches long.
Appellant picked up the piece of wood and “started
slamming it” on the metal electrical box “right
next” to Mr. Lotz. Mr. Lotz asked appellant to stop,
saying that he was leaving. Appellant hit the box again, and
said Mr. Lotz was not moving fast enough. Mr. Lotz looked up,
and was struck in the head by appellant, who was agitated and
yelling. Mr. Lotz was struck on the hairline, his eye was
grazed, and he was cut just below his right eye. The stick
broke on the first blow.
Mr. Lotz asked appellant what he was doing. Appellant
repeated his demand that Mr. Lotz get out, saying that he was
not moving fast enough. Mr. Lotz looked up and put his hand
up. Appellant swung again, hitting Mr. Lotz's hand,
deflecting off, and hitting Mr. Lotz on the left cheek. Mr.
Lotz told appellant his hand was broken, to which appellant
replied, “‘Good.’” Mr. Lotz got up,
walked out to the sidewalk and flagged down police officers.
He received seven stitches at his hairline and six just below
his right eye. Vision in his right eye remained blurry. His
ring finger was broken and was permanently bent.
Arcadia police officers Jeffrey Stark and Brian Long were
directed by Mr. Lotz to the location of the assault. He
identified appellant as his assailant. Appellant, whom
Officer Stark knew from previous contacts, was at the scene.
A substance that appeared to be blood was on his clothing. He
was detained by the officers. Officer Cameron Link took over
the investigation at the scene. A big piece of wood was found
propped up on the crossing arm at the railroad crossing.
Officer Stark described it as a two-by-four with a rugged
texture. It appeared to have blood on the jagged edge. It was
photographed and taken into evidence. Mr. Lotz identified it
as the piece of wood with which appellant had struck him.
Appellant testified in his own defense. He admitted a dispute
with Mr. Lotz about sleeping space near the railroad tracks
during which he broke the piece of wood by hitting it against
the electrical box. But he denied striking Mr. Lotz. He
claimed that Mr. Lotz moved around while on the ground,
leaned over, and cut himself with the stick. He said the
blood on his clothing was his own, from scratching himself
during a yard work job, and then reopening the wound every
time he took a cigarette and lighter out of his pockets.
(Lodg. 6 at 2-4.)
One: The trial court violated Petitioner’s
constitutional rights by giving a jury instruction that
“failed to separate elements for each count” and
failed to instruct the jurors “which elements they had
to find.” (Pet. at 5, 10-23.)
Two: The California Court of Appeal should have reversed
Petitioner’s conviction in count 1, in addition to
reversing his conviction in count 2, because the jury did not
necessarily find that Petitioner used a deadly weapon in
count 1. (Pet. at 5, 24-27.)
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") governs the Court's consideration of
Petitioner's cognizable federal claims. 28 U.S.C. §
2254(d), as amended by AEDPA, states:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted 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
Williams v. Taylor, 529 U.S. 362 (2000), the United
States Supreme Court held that a state court's decision
can be contrary to federal law if it either (1) fails to
apply the correct controlling authority, or (2) applies the
controlling authority to a case involving facts materially
indistinguishable from those in a controlling case, but
nonetheless reaches a different result. Id. at
405-06. A state court's decision can involve an
unreasonable application of federal law if it either (1)
correctly identifies the governing rule but then applies it
to a new set of facts in a way that is objectively
unreasonable, or (2) extends or fails to extend a clearly
established legal principle to a new context in a way that is
objectively unreasonable. Id. at 407-08. The Supreme
Court has admonished courts against equating the term
"unreasonable application" with "clear
error." "These two standards . . . are not the
same. The gloss of clear error fails to give proper deference
to state courts by conflating error (even clear error) with
unreasonableness." Lockyer v. Andrade, 538 U.S.
63, 75 (2003). Instead, in this context, habeas relief may
issue only if the state court's application of federal
law was "objectively unreasonable." Id.
"A state court's determination that a claim lacks
merit precludes federal habeas relief so long as
'fairminded jurists could disagree' on the
correctness of the state court's decision."
Harrington v. Richter, 562 U.S. 86, 101 (2011).
AEDPA, the "clearly established Federal law" that
controls federal habeas review of state court decisions
consists of holdings (as opposed to dicta) of Supreme Court
decisions "as of the time of the relevant state court
decision." Williams, 529 U.S. at 412
("§ 2254(d)(I) restricts the source of clearly
established law to this Court's jurisprudence");
see also Andrade, 531 U.S. at 71. If there is no
Supreme Court precedent that controls a legal issue raised by
a habeas petitioner in state court, the state court's
decision cannot be contrary to, or an unreasonable
application of, clearly established federal law. Wright
v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam);
see also Carey v. Musladin, 549 U.S. 70, 7677
(2006). A state court need not cite or even be aware of the
controlling Supreme Court cases, "so long as neither ...