United States District Court, E.D. California
K. SINGLETON, JR. Senior United States District Judge
Negrete, a state prisoner proceeding pro se, filed a
Petition for a Writ of Habeas Corpus with this Court pursuant
to 28 U.S.C. § 2254. Negrete is in the custody of the
California Department of Corrections and Rehabilitation and
incarcerated at San Quentin State Prison. Respondent has
answered, and Negrete has replied.
March 8, 2012, Negrete was charged with attempted
premeditated murder (Count 1); aggravated mayhem (Count 2);
two counts of assault likely to cause great bodily injury
(Counts 3 and 5); and battery with serious bodily injury
(Count 4) in connection with a bar fight involving many
participants. The information further alleged that Negrete
personally inflicted great bodily injury resulting in brain
injury or paralysis with respects to counts 3 and 4. On May
5, 2012, Negrete proceeded to a jury trial. On direct appeal
of his conviction, the California Court of Appeal laid out
the following facts underlying this case and the evidence
presented at trial:
In June 2011 [Negrete] went to the Last Call bar. At the bar
[Negrete] tried to buy a drink for another bar patron,
Jessenia Isordia. After she refused his offer, [Negrete]
punched her in the face and called her a bitch.
The bar bouncer witnessed the attack and testified [Negrete]
punched Isordia twice in the face with his closed fist. The
bouncer led [Negrete] out of the bar. About 20 bar patrons
followed [Negrete] outside and a fight broke out.
As the fight raged, Angel Martinez made his way through the
melee. Someone hit Martinez with a “haymaker”
punch, knocking him unconscious. The man began to stomp on
the prone Martinez. A bouncer at the bar and another bar
patron testified that [Negrete] joined the attacker and
repeatedly stomped Martinez in the face with his heel.
[Negrete] then kicked Martinez in the face with powerful
“field goal”-style kicks. Martinez remained
unconscious, unable to respond or defend himself. Following
the beating, Martinez was in a coma for at least five days
and remained hospitalized for a month and a half, suffering
from a traumatic brain injury.
During the brawl, Arta Rusch was pushed to the center of the
melee. [Negrete] punched Rusch in the face with a
“haymaker punch” and knocked her out. Afterward,
[Negrete] made eye contact with one of the bar patrons, threw
his hands in the air, and shouted, “Come get
some.” He then fled on foot.
After witnesses described [Negrete] to police officers, the
officers detained him. [Negrete] was intoxicated, had blood
around his left eye, and had a cut under his lip.
[Negrete] testified in his own behalf. He stated he went to
the Last Call bar to celebrate his birthday with his
girlfriend and her sister. [Negrete] drank “a
few” beers before he arrived and had at least six or
seven mixed drinks while at the bar.
[Negrete] denied tangling with anyone inside the bar but
testified he accidentally bumped into a woman as he left.
Although he apologized, the woman became upset, swore at him,
and began to fight with [Negrete's] girlfriend.
The bar bouncer broke up the fight and escorted them out of
the bar. Once outside, someone “sucker punched”
[Negrete], and he fought back to defend himself. [Negrete]
continued to fight until an officer stopped him. During the
brawl, [Negrete's] girlfriend was by his side, fighting
with another woman.
[Negrete] testified he did not kick or stomp on anyone. He
had no physical contact with Martinez, nor did he strike
Rusch or Isordia. Isordia could have been the woman fighting
with [Negrete's] girlfriend in the bar.
Verdict and Sentence The jury found
[Negrete] guilty of counts 2, 3, and 4. The jury also found
true the great bodily injury allegations as to counts 3 and
4. The jury found [Negrete] not guilty of count 5, but guilty
of the lesser included offense of misdemeanor assault. After
the jury could not reach a verdict on count 1, the trial
court declared a mistrial and dismissed the charge.
The trial court sentenced [Negrete] to life in prison with
the possibility of parole on count 2, four years on count 3,
and four years on count 4, plus an additional five years each
on counts 3 and 4 under the infliction of a brain injury
enhancements (former § 12022.7, subd. (b)) and an
additional three years each on counts 3 and 4 under the
infliction of great bodily injury enhancements (former §
12022.7, subd. (a)). The court then stayed sentence on counts
3 and 4 under section 654. The court imposed 180 days'
time served on count 5. In addition, the trial court imposed
several fines, including a $240 restitution fine.
People v. Negrete, No. C071519, 2014 WL 413060, at
*1-2 (Cal.Ct.App. Feb. 3, 2014).
counsel, Negrete appealed his conviction, arguing that: 1)
the aggravated mayhem conviction was not supported by legally
sufficient evidence because the prosecution failed to prove
that Negrete had the specific intent to maim; 2) the
great-bodily-injury enhancements in counts 3 and 4 were not
supported by legally sufficient evidence because the
prosecution failed to prove it was impossible to determine
which act by which aggressor resulted in the great bodily
injury and thus the group beating exception did not apply; 3)
the trial court erred by instructing the jury with CALCRIM
Nos. 3160 and 3161, which were not supported by the evidence
and incorrectly stated the law applicable to the case; 4) the
great-bodily-injury enhancement in Count 4 should be vacated
because great bodily injury is an element of the crime of
battery resulting in serious bodily injury; 5) the court
erred in imposing two great-bodily-injury enhancements on
Count 3, in violation of state law; and 6) the trial
court's imposition of a $240 restitution fine violated
the ex post facto clause and Negrete's right to due
process. The prosecution conceded that Negrete was correct
with respect to two of the claims challenging the
great-bodily-injury enhancements imposed on Counts 3 and 4
(claims 4 and 5), but otherwise opposed the appeal. In a
reasoned, unpublished opinion issued on February 4, 2017, the
Court of Appeal modified the abstract of judgment to correct
the enhancements imposed on Counts 3 and 4 but unanimously
affirmed the judgment in all other respects.
Negrete, 2014 WL 413060, at *5-6. Negrete petitioned
for review in the California Supreme Court, raising the four
claims he unsuccessfully raised before the Court of Appeal.
The Supreme Court denied the petition for review without
comment on April 9, 2014.
then filed in the California Superior Court a pro se
petition for habeas relief. In that petition, he argued that:
1) the evidence presented was insufficient to prove
aggravated mayhem; 2) trial counsel was ineffective for
failing to assert imperfect self defense; and 3) trial
counsel was ineffective for “fail[ing] to request the
trial court to ‘further instruct' his jury on
imperfect self-defense.” The superior court denied the
petition in an unpublished, reasoned opinion issued on April
23, 2015. Negrete raised the same claims in a pro se
habeas petition in the California Supreme Court, which was
summarily denied on April 29, 2015.
his state habeas petitions were pending, Negrete timely filed
a pro se Petition for a Writ of Habeas Corpus to
this Court on March 23, 2015. See 28 U.S.C. §
pro se Petition before this Court, Negrete argues
that: 1) the evidence presented by the prosecution was
legally insufficient to sustain his aggravated mayhem
conviction; 2) the prosecution failed to prove the
applicability of the group beating exception to personal
infliction findings and thus the evidence was insufficient to
sustain the jury's findings of personal infliction of
great bodily injury; 3) the imposition of his $240
restitution fine violated the ex post facto clause and his
right to due process because the court imposed the minimum
under a statute amended after he committed his offense; and
4) his trial counsel was ineffective for failing to assert an
imperfect self defense for aggravated mayhem.
STANDARD OF REVIEW
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d), this Court
cannot grant relief unless the decision of the state court
was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, ”
§ 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding, ” § 2254(d)(2). A
state-court decision is contrary to federal law if the state
court applies a rule that contradicts controlling Supreme
Court authority or “if the state court confronts a set