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Pullen v. Lizarraga

United States District Court, E.D. California

April 24, 2017

DONOVAN DEWAYNE PULLEN, Petitioner,
v.
JOE LIZARRAGA, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Petitioner is currently serving a sentence of 25 years and 4 months for convictions stemming from an assault on his wife. In this instant habeas action he claims: 1) The trial court denied him his Fourteenth Amendment due process rights by denying his Trombetta/Youngblood motion based on the prosecution's willful failure to preserve evidence; 2) The prosecutor committed misconduct during closing argument by violating a mid-trial agreement about the inadmissibility of the victim's prior criminal record in violation of his due process rights; and 3) The trial court abused its discretion and violated Petitioner's constitutional rights during the sanity phase of the trial by refusing to investigate a juror's alleged inattention, and then by denying Petitioner's motion for a new sanity trial. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         Petitioner was convicted in the Fresno County Superior Court on December 14, 2012, of corporal injury to a spouse/cohabitant (Cal. Penal Code § 273.5(a)), assault by means likely to produce great bodily injury (Cal. Penal Code § 245(a)(4)), and criminal threats (Cal. Penal Code § 422). People v. Pullen, No. F066371, 2015 WL 847688, at *1 (Cal.Ct.App. 2015). Special allegations that Petitioner personally inflicted great bodily injury under circumstances involving domestic violence (Cal. Penal Code § 12022.7(e)), one prior strike conviction (Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)), one prior serious felony enhancement (Cal. Penal Code § 667(a)(1)), and four prior prison term enhancements (Cal. Penal Code § 667.5(b)), were found to be true. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on February 26, 2015. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was summarily denied on June 10, 2015. Id.

         On January 4, 2016, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1.) Respondent filed an answer on May 24, 2016. (Doc. No. 21.) Petitioner filed a traverse on July 25, 2016. (Doc. No. 27.)

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

Defendant's Prior Acts of Domestic Violence
Defendant and Luevater Fulmer (Fulmer) had known each other since they were children and lived together for several years before their marriage.
In 2003, defendant and Fulmer argued because he accused her of cheating on him. Fulmer started to leave their apartment. Defendant hit her and knocked her out, and Fulmer did not remember anything after that. Fulmer woke up in the hospital four days later. Her jaw had been broken in three places, and she had a shattered cheek bone. Fulmer testified her “whole memory lapsed” as a result of the incident. Defendant was convicted of assault by means likely to produce great bodily injury, with a great bodily injury enhancement.
In 2004, defendant and Fulmer were married.
In June 2009, defendant and Fulmer argued because he wanted to have sex and she refused. Defendant grabbed her neck and pinned her to the wall. Defendant warned Fulmer that he would snap her neck if she moved.
Defendant's Statements to Joann Espinoza
In August 2009, defendant and Fulmer were living in an apartment complex. One day, defendant saw their neighbor, Joann Espinoza (Espinoza), as she was about to drive out of the parking lot. Defendant asked for a ride and she agreed.
Espinoza testified defendant got into her car, and he was very upset and distraught. Defendant said he and Fulmer were fighting. He said Fulmer was having sex with “other guys behind his back.” Defendant said he wanted to kill Fulmer because she caused him too much anguish. Espinoza told defendant to leave the relationship if it was that bad. Defendant did not appear under the influence, and he did not threaten to kill himself.
Espinoza testified she did not take defendant's threat to kill Fulmer seriously. She did not tell Fulmer, and she did not call the police because “it's just the way people talk.” [N.3]
[N.3] It was stipulated that Espinoza had a misdemeanor conviction for grand theft (§ 487) in 2000.
THE CHARGED OFFENSES
Fulmer testified that around 1:00 a.m. on September 1, 2009, she was sitting on a chair in front of their apartment. [N.4] Two men walked past her. She did not know them.
[N.4] Fulmer testified she may have consumed a beer and smoked marijuana on August 30, 2009.
Defendant arrived at the apartment complex on his bicycle and saw the two men. Defendant raised his voice and accused Fulmer of talking to the men. He asked why they rushed away. Fulmer replied the men did not speak to her, and they just walked by. Defendant did not believe her. He accused her of cheating and flirting with the men.
Fulmer testified she did not want to argue with defendant, and she went inside their apartment. Defendant followed her. Fulmer sat on the couch and watched television. She was going to smoke marijuana. Defendant stood in front of the television and asked why she was cheating on him. Fulmer again denied she talked to the men.
Defendant ran up to Fulmer and repeatedly punched her in the head. Fulmer tried to block the blows, and she kicked him away from her. She tried to escape out the door, but defendant grabbed her around the neck. He threw her to the floor, sat on top of her, choked her with both hands, and said he was going to kill her. Fulmer could not breathe and was gasping for air. She thought she was going to die. She tried to scratch and punch defendant. Fulmer testified “everything went black, ” and she briefly lost consciousness.
Fulmer woke up and discovered defendant was still sitting on top of her stomach in the living room. His hands were around her neck and he said, “‘Bitch, I'm gonna kill you.'” Defendant squeezed her throat, and Fulmer again lost consciousness.
When she woke up, defendant was still on top of her. He said: “‘Bitch, I'm gonna kill you, and then I'm gonna kill myself. They gonna find both of us dead up in this house.'” Fulmer believed defendant was going to kill her because “he never choked me out like that before.” He choked her with more force than he used during the previous month's incident. Fulmer tried to punch and kick defendant, but he stayed on top of her. Defendant started to squeeze her neck again, and Fulmer turned to her side to protect herself.
As Fulmer turned, defendant grabbed her head and slammed it on the living room floor three times. Fulmer passed out again and was unconscious for a longer period of time.
Fulmer testified that when she woke up, she was still lying on the living room floor, and her head was in a large pool of blood. She tried to sit up, but her hands slipped and smeared the blood on the floor. Defendant was sitting on the living room floor with his back against the wall, and said, “I'm going back to jail.” Defendant also said: “I promised God I wouldn't hurt you no more, ” and “I promised you that I wouldn't hurt you no more.” Fulmer knew he was talking about the previous domestic violence incidents.
Fulmer and defendant got up and sat on the couch. She tried to keep him calm so she could escape. Fulmer told defendant she forgave him, and they would keep things quiet. Defendant grabbed her hand and said he did not know what he was going to do next. After 30 minutes, Fulmer felt she was going to pass out from her injuries, and blood was running down the side of her head. Defendant positioned a fan to blow on her, but she still felt like she was going to faint. Defendant walked Fulmer to the closet to get a towel. He walked her into the bathroom, wet the towel, and then walked her back to the couch. Fulmer pressed the towel on her head and tried to stop the blood. There was blood all over her shirt.
Defendant told Fulmer that he was going to kill himself. He dragged her to the kitchen and grabbed a steak knife from the drawer. Fulmer tried to resist and get away, but defendant pulled her down to the dining room floor, and sat next to her.
Defendant and Fulmer sat together on the dining room floor. Defendant said he was going to kill himself. Fulmer told him no. Defendant repeated that he was going to kill himself. He pressed the knife against his own stomach, but he did not break the skin. Fulmer testified defendant never threatened her with the knife or placed it against her stomach.
Fulmer testified as defendant pressed the knife to his stomach, he stopped and said, “‘No I'm not gonna kill myself.... You kill me because I don't want to lose my soul in hell.'” Fulmer repeatedly refused. Defendant placed Fulmer's hand on the knife handle and tried to push her hand down so the knife was on his stomach.
After a few minutes, Fulmer resisted defendant and pushed away the knife. Defendant let her go and said he was just going to kill himself. Fulmer ran to the door. Defendant told her to take her cell phone. Fulmer was afraid he was going to stop her, so she ran out of the apartment without her cell phone.
Fulmer testified that when she ran out of the apartment, defendant was still sitting on the dining room floor, and he was holding the knife.
The 911 Call
Fulmer pounded on Espinoza's door for help. Espinoza testified Fulmer was screaming and crying, and said she had to call 911 because defendant had beat her. Fulmer was bleeding from her forehead. Espinoza gave Fulmer the telephone and a towel to stop the bleeding. Espinoza testified Fulmer was shaken and distraught.
At 3:00 a.m., Fulmer called 911 and told the dispatcher that defendant “‘choked me out'” and “‘busted my head on the floor.'” Fulmer said defendant was trying to kill himself, that she was afraid for her life, and she was scared to go home because she might find her husband lying on the floor dead. [N.5]
[N.5] The 911 recording was played for the jury. The parties were unable to agree as to whether the transcription was true and accurate. The court instructed the jury to make that determination.
As Fulmer waited for the police to arrive, she was still crying and upset. Espinoza testified Fulmer said defendant tried to kill her, that he had choked her and tried to use a knife to stab her in the stomach. [N.6]
[N.6] At trial, Fulmer denied that she told Espinoza that defendant threatened to cut her with the knife and testified that never happened.
The Initial Investigation
At 3:13 a.m., Officer Pierce Masse arrived at the apartment complex with his field training officer and six to eight additional officers. [N.7] He spoke to Fulmer outside Espinoza's apartment. Masse testified Fulmer's face, neck and shirt were covered with blood. Her left eye, cheek, and forehead were swollen. There was a one-inch laceration on her left eye, and she had scrapes and bruises on her knees, left wrist, and minor swelling on her left forearm. She held a towel against the left side of her head, through which blood was seeping. Masse called an ambulance for Fulmer.
[N.7] Officer Masse testified that when he investigated this case, he had been a peace officer for about five weeks, he was still in training with his training officer, and he had graduated from the six-month program at the police academy.
Officer Masse testified Fulmer was upset but calm. Fulmer said defendant was in her apartment, he had a knife, and he said that he was going to kill himself. Fulmer gave her consent for the officers to enter her apartment.
Officer Masse asked the dispatcher to call the cell phones for both Fulmer and defendant so they could talk to defendant. Defendant did not answer.
Entry into the Apartment and Discovery of Defendant
Officer Masse and other officers approached Fulmer's apartment. Masse opened the outer security door, and the front door was already open. Masse looked inside and saw defendant lying face down on the dining room floor in a pool of blood. Defendant was on his right side and his right hand was over his head. His left hand was lying in the blood. [N.8] He was not moving. A knife was on the floor, about eight feet away from defendant.
[N.8] Upon reviewing a photograph taken of the dining room, Fulmer testified that it showed a large pool of blood, and that she did not bleed that much from her head wound.
The officers rushed in and placed defendant in handcuffs before he could react or grab the knife. Defendant looked at Officer Masse with a blank stare. Masse discovered defendant had a large laceration on his left wrist, which was bleeding and covered with blood. Defendant was taken into custody and a second ambulance was called for him. Masse was unable to obtain a statement from defendant.
Fulmer's Statement at the Scene
After defendant was taken into custody, Officer Masse conducted a longer interview with Fulmer as she was being treated by paramedics at the apartment complex. Fulmer said defendant arrived at their apartment on his bicycle just as three men walked by. Defendant asked why she was talking to them and accused her of cheating on him. Fulmer said she walked into the apartment and sat on the couch because she did not want to argue with him. Defendant punched her in the face. Fulmer said she was stunned, and she kicked at him to get away. Defendant punched her eight or 10 times, grabbed her throat with both hands, and choked her. Fulmer struggled and defendant said he was going to kill her. She lost consciousness.
Fulmer said when she woke up, defendant still had his hands around her throat. He again said he was going to kill her. He squeezed her throat and she passed out. Fulmer said she woke up, and defendant threw her to the floor, sat on top of her, and started to choke her again. Fulmer said she tried to kick and scratch him, but he was larger than her. Defendant slammed her head into the ground, and she might have lost consciousness.
Fulmer said defendant eventually helped her up, and they sat on the couch. He apologized, but then he dragged her to the kitchen. Defendant grabbed a knife and said he was not going to kill her, but he was going to make Fulmer kill him. Defendant held the knife against his abdomen and placed Fulmer's hand against the knife. Defendant again said he was going to make Fulmer kill him. Fulmer tried to calm defendant and pleaded with and apologized to him. Defendant calmed down, and she threw the knife on the floor. Fulmer said they sat and talked for nearly two hours, and she tried to keep him calm. Defendant apologized for hurting her. Defendant suddenly became angry again and told her to leave because he was going to kill himself. Fulmer ran to the neighbor's home and called 911.
Espinoza's Statement
After he spoke to Fulmer, Officer Masse interviewed Espinoza, who was initially reluctant to answer questions. Espinoza said Fulmer ran into her apartment and asked to call 911. Espinoza said she did not hear defendant and Fulmer arguing, and she did not see what happened.
Espinoza told Officer Masse about the prior incident when she gave defendant a ride. Defendant was upset and said he was planning to kill Fulmer because she was cheating on him. Espinoza said defendant seemed really serious, and he was not joking when he said that. However, Espinoza did not tell Fulmer about the threat or report it to the police. [N.9]
[N.9] Espinoza was reluctant to testify and explained that prior to trial, her former boyfriend had been held in jail with defendant. He told Espinoza that defendant had confronted him and threatened Espinoza.
Crime Scene Evidence
Officer Masse testified that when he initially entered the apartment and found defendant, he also found two separate pools of blood. One pool was on the dining room floor. Defendant was lying in this pool of blood, and his left hand was bleeding into it. The second pool of blood was on the living room floor. Masse testified the blood on the living room floor had been smeared, but there was no blood trail or drops between the two pools of blood and the knife.
Carmen Robles, the police department's crime scene technician, also testified that she found two separate pools of blood on the living and dining room floors, and there was no blood trail between the two locations. A kitchen knife was on the dining room floor, and there was blood on the blade.
Both Officer Masse and Ms. Robles testified that blood samples were not taken from the blood pools on the dining and living room floors, or from the knife. Masse testified that he discussed the blood evidence with his field training officer and Ms. Robles. Masse testified that he decided not to ask Ms. Robles to collect any blood samples because there was no real question about the sources of the blood. Masse testified that when he initially entered the apartment, defendant was lying face down on the dining room floor, his left wrist was cut, it was bleeding, and he was lying in the pool of blood. Masse testified that Fulmer said defendant assaulted her in the living room, and the blood and smears on the living room floor were consistent with her description of her struggle with defendant.
Officer Masse testified his field training officer agreed with his decision not to order the collection of blood samples. Ms. Robles collected the knife and processed it for fingerprints, and the results were negative. [N.10]
[N.10] In issue I, post, we will address defendant's claim that the People's failure to obtain and preserve blood samples from the living and dining room floors violated his due process rights under Trombetta and Youngblood because the evidence would have been exculpatory and supported his version of the incident. At trial, defendant claimed for the first time that Fulmer assaulted and stabbed him in the living room, and his blood was on the living room floor.
Officer Masse conceded he did not absolutely know whose blood was on the dining and living room floors. However, he believed the blood on the dining room floor was from defendant based on the scene he encountered when he entered the apartment. Masse further believed the blood on the living room floor was from Fulmer based on the detailed account she gave of the assault.
Officer Masse testified Fulmer was holding a towel to her head wound when he initially contacted her at Espinoza's apartment. The towel did not appear to be relevant evidence and he did not collect it. He did not collect Fulmer's bloody shirt, and he did not find or collect the towel that defendant gave Fulmer in the apartment to stop the bleeding. [N.11]
[N.11] The defense also cross-examined Officer Masse about his failure to collect a bloody “towel” depicted in photographs of the dining room area.
However, additional trial evidence revealed the item was actually gauze used by the paramedics to stop defendant's bleeding.
Medical Evidence
Fulmer
Both Fulmer and defendant were taken to the hospital and treated in the emergency room by Dr. Geoffrey Stroh. Dr. Stroh testified that Fulmer had a two-centimeter laceration on her left temple, above her eye. It was superficial and not deep. She needed three stitches to close the laceration.
Fulmer also had swelling, a superficial laceration, and abrasions on her left cheek and the left side of her neck, swelling on her scalp, and scrapes on her knees. She had redness on her chest which extended from the left upper side to the base of her neck. There was also redness on her left forearm and right kneecap.
A CT scan revealed a depressed fracture to Fulmer's right cheekbone. The bone had been pushed inward, but it was still intact. Dr. Stroh was not sure whether the fracture was a new injury and noted the radiology report failed to indicate whether it was an old or healed injury.
Fulmer told the medical staff she had been choked, thrown against the floor, and she lost consciousness. Dr. Stroh presumed Fulmer suffered a concussion based on her head injuries and her description of losing consciousness.
Defendant
The paramedic who treated defendant at the apartment testified he was moaning and unresponsive to commands. Defendant had a jagged cut to his left wrist that was oozing blood. As the paramedics rendered care, defendant showed some alertness. By the time defendant arrived at the hospital in police custody, he was oriented and able to speak.
Dr. Stroh testified defendant had a three-centimeter laceration on his left wrist, which consisted of one large cut and perhaps two smaller cuts. The wound was not deep, it was superficial, and it was not bleeding. The wound was closed with a suture. He did not have any other injuries. Defendant told the medical staff he cut his left wrist with a steak knife while he was sitting down; he felt dizzy; and he laid down.
Dr. Stroh reviewed the photographs of the blood in the living and dining rooms. He testified that either amount of blood could have come from Fulmer's scalp wound or defendant's wrist laceration.
DEFENSE EVIDENCE
Defendant was the only defense witness.
The Prior Domestic Violence Incidents
Defendant testified he had a felony conviction in 1993 for stealing a truck. He claimed Fulmer's brother loaned the truck to him; he did not know it was stolen; and he was arrested because he had drugs in his pocket. Defendant admitted that in 2003, he was convicted for assault with means likely to cause great bodily injury and that he caused great bodily injury. Defendant testified he hit Fulmer “a couple of times” when they argued about whether she had been “messing” with his brother.
Defendant admitted he grabbed Fulmer in June 2009, but denied that he grabbed her throat and pinned her against the wall. Defendant testified the incident occurred because Fulmer wanted to smoke crack, she was irritable, and she was “going off.”
The Charged Offenses
Defendant testified that he rode his bicycle to his apartment around 10:00 p.m. on August 31, 2009, and saw two men walking away. He recognized one man as someone he had beaten and thrown out of his apartment a few months earlier.
Defendant went into the apartment and confronted Fulmer with his concerns about the men. He believed the men were molesting their grandchildren because he had seen “stuff” in his granddaughter's panties. He also believed Fulmer was cheating on him. Defendant thought Fulmer had previously put something in his drink to knock him ...

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