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Newell v. Martinez

United States District Court, N.D. California

July 29, 2016

GARY T. NEWELL, Petitioner,
JOEL MARTINEZ, Acting Warden, [1]Respondent.




         Petitioner Gary T. Newell, a state prisoner currently incarcerated at the Sierra Conservation Center, brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge his 2010 conviction and 2011 sentence rendered in the Santa Clara County Superior Court. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES Petitioner’s claim in his amended petition for the reasons set forth below.


         The California Court of Appeal described the relevant procedural and factual backgrounds as follows:

Defendant was charged by information with assault with a deadly weapon upon Richard Powell. (§ 245, subd. (a)(1)).[FN 1] The information further alleged that defendant personally used a dangerous and deadly weapon, a knife, in the commission of the offense (§§ 667, 1192.7); that he personally inflicted great bodily injury upon Powell (§§ 12022.7, subd. (a), 1203, subd. (e)(3)); that he was out of custody on bail at the time of the offense (§ 12022.1); and that he had a prior serious felony conviction and two prior strikes (§§ 667, subds. (a), (b)-(i); 1170.12). The court granted defendant’s motion to bifurcate trial on the on-bail and prior allegations. Defendant then waived his right to a jury trial on those allegations.
[FN 1:] All further statutory references are to the Penal Code unless otherwise specified.
The People moved in limine to exclude pursuant to Evidence Code sections 350 and 352 any evidence of Powell’s 2007 arrest for assault unless and until defendant made a claim of self-defense and the court conducted a hearing pursuant to Evidence Code sections 402 and 403. The facts underlying the arrest were that in October 2007, after they had both been drinking alcohol, Powell and his brother got into a physical altercation outside their mother’s home during which both of them sustained stab wounds from the same pocket knife. Both brothers were arrested but no charges were filed because the brothers were engaged in mutual combat and the dominant aggressor could not be determined. Prior to trial, the court tentatively ruled that “no bad character [evidence] of the . . . victim . . . or his propensity for violence [would be admitted] pending the defense establishing a self-defense claim.” The court also tentatively ruled that, should defendant testify, his two prior felony section 245 convictions would be “sanitized” as “felonies involving moral turpitude” for purposes of impeachment.
The Prosecution’s Case-in-Chief
In June 2009, Richard Powell was unemployed and living with his girlfriend.[FN 2] He had met defendant when he was in high school, but they lost contact until May 2009. Then, Powell’s friend Chris McShane was staying with defendant and Powell began visiting McShane at defendant’s house about once a week.[FN 3] On June 25, 2009, Powell gave defendant a $120 computer cord to pay off a $20 marijuana debt he owed defendant. They did not argue or have any type of disagreement at that time.
[FN 2:] Powell testified that he was convicted of theft in November 2006, of misdemeanor leaving the scene of an auto accident in February 2007, and of misdemeanor theft in March 2007. At the time of the events at issue, he was on felony probation but his probation expired in early 2010.
[FN 3:] McShane was on parole at this time.
On the afternoon of June 26, 2009, Powell walked to defendant’s house after having purchased a pint of whiskey. He drank the whiskey with a liter of Coke on his way over. Some people Powell did not know were leaving defendant’s house when Powell arrived there. Powell jokingly asked them, “What are you doing hanging out with this guy?” Defendant told Powell to go sit in his patio. Powell did so and sat down in a white plastic chair. McShane stood nearby him. Defendant came out to the patio and said, “Don’t talk to my friends that way.” Powell was reaching for cigarettes in his pants pocket, which was also where he kept his Swiss army knife on his keychain, when defendant hit him on the left side of his head above his ear. Powell stood up and hit defendant in the face with his fist. They fell to the ground while Powell continued to hit defendant in the face. McShane yelled, “Stop, Rick. You’re hurt, ” but he did not try to separate Powell and defendant. When Powell felt defendant’s dogs “nibbling at” him, he stopped hitting defendant, got up, and went to the bathroom. He saw a bloody wound on his head, so he took off his shirt and used it to apply pressure to the wound. As he was leaving the house, he saw a bloody butcher knife on the kitchen counter and assumed that it was what defendant had used to hit him. Defendant told Powell that he wanted to take him to the hospital, but Powell did not agree to let defendant do so. Powell started to walk home, but when he realized that he had injuries other than to his head, he used a phone belonging to one of defendant’s neighbors to call 911.[FN 4] He then sat down on the curb and waited for help.
[FN 4:] A recording of the phone call was played for the jury.
Defendant and McShane were standing outside by defendant’s front door when Powell walked away. Defendant, McShane, and defendant’s wife Carrie Newell[FN 5] then went back and forth from inside their house to a car parked in the driveway. After that, they got into the car and drove off in the opposite direction from which Powell had walked. Shortly thereafter, the police arrived in the area.
[FN 5:] In order to avoid confusion and while intending no disrespect, we will refer to defendant’s wife by her first name.
Around 5:40 p.m., on June 26, 2009, San Jose police officers and paramedics were dispatched to the area of defendant’s home on the report of a stabbing. They found Powell sitting on the curb. He was holding a bloody shirt to his head, he had blood all over him, he smelled of alcohol, and he was yelling, “I can’t believe Gary did this.” The paramedics had a difficult time treating Powell because he was upset and he kept moving around. One officer had to hold a piece of gauze to a two to three inch laceration in Powell’s underarm area because it was bleeding profusely. Powell said that defendant had hit him with a meat cleaver. Powell was taken by ambulance to a hospital where he received 18 staples for two wounds on his head and eight to ten stitches for wounds on his underarm and leg. A closed Swiss army knife was later found nine feet from where Powell’s bloody clothes were left lying on the curb. The knife did not have any blood on it. Powell testified that he had given his wallet, keychain, and Swiss army knife to an officer while in the ambulance.
Inside defendant’s home, officers found drops of blood on the bathroom floor, on the living room floor, on the door sill between the living room and the screened-in patio, and on the front of the backrest of a white plastic chair in the patio. The concrete floor of the patio was damp and had several pools of water. Nothing else in the patio was wet. No meat cleavers were found in or outside the house and no knife was found with blood on it.
Defendant was arrested at a hospital about one hour after officers had responded to Powell’s location. Defendant had received injuries to his nose and cheek. At the time he was booked into custody, he had $2, 716 on him.
The Defense Case
On June 26, 2009, Patrick Shane was renting a room in defendant’s home. McShane also stayed at the home off and on. Shane testified that that evening, he was at a neighborhood park with defendant’s wife when McShane arrived and whispered something to her. She ran home and Shane followed her. When Shane arrived at the house, he saw Powell standing in the hallway with blood on him, defendant handing McShane a meat cleaver and a knife, and blood in the patio area and on the wall near the bathroom. Everybody but Shane then left the house. Shane used a towel to clean up blood in the patio, kitchen, and bathroom, and he discarded the towel behind the washing machine in the garage. Officers came to the house after he was done.
Carrie testified that on the evening of June 25, 2009, she discovered that her son’s bottle of prescription codeine medication was empty, and she and defendant suspected Powell had taken it. On the afternoon of June 26, 2009, defendant told her that he had received several phone calls from Powell and that he had told Powell not to come over to the house. However, Powell arrived at their house shortly thereafter when defendant was outside in the patio with two people who were there to purchase a puppy. After Carrie let Powell into the house, she took two children to the park, and Shane followed them. When McShane came to the park and told her to return to the house, she left the children with a friend and ran home. She found defendant and Powell, both of whom were bleeding, and defendant told her that he needed to go to the hospital. She left to check on the children, and she does not know how her husband got to the hospital.
Defendant testified in his own defense. He has an August 2004 misdemeanor conviction and two April 2009 felony convictions, all involving moral turpitude. During the week before June 26, 2009, he was showing the puppies of his purebred dogs at various parks, trying to sell them. On June 25, 2009, Powell brought defendant a computer adapter that he said he had stolen from Radio Shack. Defendant gave Powell some marijuana in exchange for the adapter. Defendant has a medical marijuana card and he grows marijuana in his yard. After Powell left, defendant determined that his son’s prescription codeine medication was missing.
On June 26, 2009, Powell called defendant several times, and defendant told Powell that he was no longer welcome in defendant’s home. That afternoon, defendant took two of his puppies to a park near his home. Four people there said that they were interested in purchasing a puppy, and defendant invited them to his home to see the entire litter. The four individuals came to defendant’s home and they each gave him $600 as a deposit for a puppy. While he was bending over the litter of puppies in his kitchen, he was hit by [someone][2] on the side of his face with the back end of a meat cleaver. He received a cut on his nose and left cheek. He did not know that Powell had entered his home until he was hit.
Defendant turned around and “tackled” Powell and a man who had come to buy a puppy. The meat cleaver slid from Powell’s hand and across the kitchen floor, so defendant grabbed it. He stood up and saw Powell coming at him, brandishing a kitchen knife. Defendant then hit Powell twice on the head with the meat cleaver. They got into a “little wrestling match, ” which went on through the kitchen, living room, and patio. When it stopped, Powell was bleeding from his head and defendant offered him aid. Defendant got Powell some towels and tried to bandage his head wound. He offered to take Powell to the hospital but Powell was not willing to go because he thought the police would be called. Defendant and Powell discussed how they could make up a story about what had happened so that neither of them would get in trouble; they could say that they had been “jumped” in the park by a few people they did not know.
A neighbor gave defendant a ride to the hospital. During the ride and again in front of the hospital, defendant called 911. He did not tell the police anything about Powell having attacked him with a knife. Besides the cut on his face, defendant was also treated for a cut on his neck and a cut on his finger. He does not know what happened to the meat cleaver or the knife.
The Prosecution’s Rebuttal Case
Powell testified that he did not steal the computer cord from Radio Shack that he gave to defendant. He further testified that he had an allergic reaction to codeine when he was a child. He did not steal any codeine from defendant’s house on June 25, 2009. He bought marijuana from defendant at least once a week, and he once saw defendant sell marijuana to other people. He did not call defendant on June 26, 2009, before showing up at his house. He did not take or handle any knives from defendant’s kitchen while he was at defendant’s house.
San Jose Police Officer Michael Ceballos testified that he was one of a group of officers dispatched to the alleged stabbing at defendant’s home on June 26, 2009, sometime after 5:30 p.m. There he was assigned to speak to defendant’s neighbors. About an hour later, he and other officers were dispatched to the hospital to see defendant and his wife. Defendant’s wife told Officer Ceballos ...

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