United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.)
Court adopts the Statement of Facts in the Fifth DCA's
Defendant's Prior Acts of Domestic
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
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
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
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
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
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
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
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
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
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.
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] 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
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.
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
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.
Defendant was the only defense witness.
The Prior Domestic Violence
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
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