Kevis Lavell Manuel v. J. Sutton

Filing 13

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Andre Birotte Jr. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment shall be entered denying and dismissing the action with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KEVIS LAVELL MANUEL,

) NO. CV 17-6333-AB(E)
)
Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
WARDEN J. SUTTON,
) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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André Birotte, Jr., United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Habeas Corpus By a Person in

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State Custody” on August 28, 2017.

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October 9, 2017.

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time.

Respondent filed an Answer on

Petitioner did not file a Reply within the allotted

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BACKGROUND

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A jury found Petitioner guilty of: (1) two counts of kidnapping

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Brenita Doe and Dominique Doe in violation of California Penal Code

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section 207(a); (2) two counts of making criminal threats in violation

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of California Penal Code section 422(a); and (3) injuring a former

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cohabitant, girlfriend or child’s parent after a prior conviction in

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violation of California Penal Code section 273.5(f)(2) (Reporter’s

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Transcript [“R.T.”] 1203-07; Clerk’s Transcript [“C.T.”] 192-93).

The

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jury acquitted Petitioner of human trafficking of Dominique Doe and

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found not true the allegations that Petitioner personally used a

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firearm in the commission of the offenses (R.T. 1204-06; C.T. 192-93).

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The jury deadlocked on a count of human trafficking of Brenita Doe,

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and the court declared a mistrial as to that count (R.T. 1209; C.T.

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193-94).

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Petitioner admitted suffering prior convictions qualifying for

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sentence enhancements under California Penal Code sections

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667.5(b) (R.T. 702-03, 1502-03; C.T. 234-35).

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admitted suffering a prior conviction qualifying as a strike under

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California’s Three Strikes Law, California Penal Code sections 667(b)

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667(a) and

Petitioner also

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- (i) and 1170.12(a) - (d) (R.T. 1502-03; C.T. 234).1

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received a prison sentence of nineteen years and four months (R.T.

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1509-11; C.T. 235-38).

Petitioner

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The California Court of Appeal affirmed (Respondent’s Lodgment 6;

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see People v. Manuel, 2016 WL 3773400 (Cal. App. July 12, 2016).

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California Supreme Court denied Petitioner’s petition for review

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summarily (Respondent’s Lodgment 9).

The

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SUMMARY OF TRIAL EVIDENCE

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The Court has conducted an independent review of the Reporter’s

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Transcript and has confirmed that the following summary of the

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evidence in People v. Manuel, 2016 WL 3773400 (Cal. App. July 12,

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2016) is accurate.

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Cir. 2017); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009)

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(taking factual summary from state court decision).

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observes that, in Petitioner’s petition for review to the California

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Supreme Court, Petitioner incorporated the Court of Appeal’s factual

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summary (see Respondent’s Lodgment 10, p. 6).

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See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th

The Court

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The Three Strikes Law consists of two nearly identical
statutory schemes. The earlier provision, enacted by the
Legislature, was passed as an urgency measure, and is codified as
California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The
later provision, an initiative statute, is embodied in California
Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People
v. Superior Court (Romero), 13 Cal. 4th 497, 504-05, 53 Cal.
Rptr. 2d 789, 917 P.2d 628 (1996). The state charged Petitioner
under both versions (C.T. 97).
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On May 28, 2014, Manuel questioned Brenita Doe

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(Brenita),2 his intermittent girlfriend, about another man.

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In the living room of their house, he cussed and yelled at

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her, accused her of lying, and then hit her in the face and

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shoulders.

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Gabriel and Kjohny — were in the house but in different

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rooms.3

Brenita's four children—Marcquis, Dominique,

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Brenita ran out of the house and down the street to get

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help.

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in front of the house.

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took her inside where he repeatedly slapped and punched her.

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Eventually, he instructed Brenita to put on a short dress

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and Dominique, who was 12 years old, to put on short shorts.

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He announced that he was going to prostitute their bodies.

Manuel “dragged” her back and threw her on the ground
After that, he picked her up and

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After Brenita and Dominique changed, Manuel forced them

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into the family's car.

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Brenita to get out and make some money.

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to a bus stop and took a seat.

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to passersby.

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daughter in his car.

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She got out, went

Manuel offered her for sale

He told them he had Brenita's 12–year–old

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He drove them to a Rite Aid and told

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The trial court concealed Brenita's full name by
referring to her as Brenita Doe.

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Manuel is Kjohny's father but not the father of
Marcquis, Dominique and Gabriel.
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No one accepted Manuel's solicitations.

Eventually, he

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drove Dominique to a 7–Eleven across the street from the

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Rite Aid and parked while Brenita remained at the bus stop.

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Manuel got out of the car and told Dominique that if she

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moved, he would kill her.

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pulled a gun part way out of his waistband so it was visible

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to Dominique.

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Subsequently, he tucked the gun back into his waistband and

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threatened Dominique by saying, “If you scream or if you

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While making the threat, Manuel

Then he pointed the gun at her head.

yell or get out, I'll kill you.”

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Manuel made Brenita return to the car and told her to

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get inside.

After she complied, he drove back to the house.

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Shortly thereafter, Manuel drove Brenita and Dominique

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to some train tracks.

He turned off the car and told them

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to get out.

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them, but they fought back.

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them.

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car.

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which he drove them home.

When they refused, he tried to forcibly remove
He said he was going to kill

When he could not pull them out, he got back in the
Eventually, Manuel drove them to a trailer park, after

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At home, Manuel told Brenita to cook food.

Later, he

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told her to get back in the car so they could take another

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ride.

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complied.

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He drove to a park.

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Because she was afraid he would hit her, she

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Dominique told Marcquis to call the police.

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to some neighbors and asked them to make the call.

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the neighbors called 911.

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Brenita, the police were present.

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driveway and got out.

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He spoke
One of

Soon after, they arrested him.

When Manuel returned home with
He parked in a neighbor's

The police saw Manuel trying to hide.

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(Respondent’s Lodgment 7, pp. 3-4; see People v. Manuel, 2016 WL

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3773400, at *1-2).

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PETITIONER’S CONTENTIONS

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Petitioner asserts two related claims of alleged instructional
error:

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1.

The trial court allegedly erred by failing to instruct the

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jury on the “contextual factors” contained in CALCRIM 1215 with

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respect to the asportation requirement of simple kidnapping (Ground

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One); and

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2.

The trial court allegedly erred by failing to instruct the

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jury to consider whether the movement of the victims was incidental to

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the other alleged “associated crimes” (Ground Two).

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996”
(“AEDPA”), a federal court may not grant an application for writ of
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habeas corpus on behalf of a person in state custody with respect to

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

(1) “resulted in a

28 U.S.C. §

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

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“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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state court’s decision is “contrary to” clearly established Federal

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law if:

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

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different result.

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

Greene v. Fisher, 565
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(1) it applies a rule that contradicts governing Supreme

See Early v. Packer, 537 U.S. at 8 (citation

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Under the “unreasonable application” prong of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537
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Lockyer v. Andrade,

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U.S. at 24-26 (state court decision “involves an unreasonable

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).

Wiggins v.

“The state

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court’s application must have been ‘objectively unreasonable.’”

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

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101 (2011).

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2254(d)(1).”

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Habeas relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

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for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented

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in federal court was so lacking in justification that there was an

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error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

Id.

“Under § 2254(d), a

Harrington v. Richter, 562 U.S. 86,

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).

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Id.

Id. at 103.

“As a condition

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In applying these standards, the Court usually looks to the last

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reasoned state court decision, here the decision of the California

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Court of Appeal.

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Cir. 2008).

See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th

DISCUSSION4

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A.

Background

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The trial court instructed the jury using CALCRIM 1215 as
follows:

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The defendant is charged in Count 1 and Count 2 with
kidnapping in violation of Penal Code section 207(a).

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To prove the defendant is guilty of this crime, the
People must prove that:

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1.

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person by using force or by instilling reasonable

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fear;

The defendant took, held, or detained another

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2.

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moved the other person or made the other person

. . . Using that force or fear, the defendant

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The Court assumes arguendo Petitioner has not
procedurally defaulted any of his claims. See Lambrix v.
Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829
F.3d 1081, 1095-96 (9th Cir. 2016), cert. denied, 136 S. Ct. 244
(2017); Franklin v. Johnson, 290 F.3d 1223, 1229, 1232-33 (9th
Cir. 2002).
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move a substantial distance; and

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3.

The other person did not consent to the movement.

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In order to consent, a person must act freely and

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voluntarily and know the nature of the act.

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Substantial distance means more than slight or trivial

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distance.

In deciding whether the distance was substantial,

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you must consider all the circumstances relating to the

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movement.

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(R.T. 940-41; see C.T. 140).

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The court did not include the following language, which is
contained in brackets within CALCRIM 1215:

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[Thus, in addition to considering the actual distance moved,

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you may also consider other factors such as [whether the

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distance the other person was moved was beyond that merely

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incidental to the commission of

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associated crime>], whether the movement increased the risk

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of [physical or psychological] harm, increased the danger of

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a foreseeable escape attempt, or gave the attacker a greater

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opportunity to commit additional crimes, or decreased the

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likelihood of detection.]

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///
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<insert

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Petitioner contends that, if the court had included in the

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kidnapping instruction the “contextual factors” contained in the

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bracketed language set forth above, the jury purportedly could have

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found that the movement of Brenita and Dominique was incidental to the

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assault, the making of criminal threats and the alleged human

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trafficking (Petition, attachment, pp. 17-22).

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argues, the jury could have found that the movement of the victims was

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not “substantial,” as required for a simple kidnapping conviction

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(Petition, attachment, pp. 17-22).

Therefore, Petitioner

The Court of Appeal rejected

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Petitioner’s claims, ruling that any error in failing to instruct on

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“contextual factors” was harmless and that an “associated crime”

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instruction was not warranted by the evidence (Respondent’s Lodgment

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9, pp. 10-12; see People v. Manuel, 2016 WL 3773400, at *5-7).

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B.

Governing Legal Standards

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“[I]nstructions that contain errors of state law may not form the

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basis for federal habeas relief.”

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342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)

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(“the fact that the instruction was allegedly incorrect under state

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law is not a basis for habeas relief”); Dunckhurst v. Deeds, 859 F.2d

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110, 114 (9th Cir. 1988) (instructional error “does not alone raise a

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ground cognizable in a federal habeas corpus proceeding”).

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federal habeas petitioner challenges the validity of a state jury

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instruction, the issue is “whether the ailing instruction by itself so

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infected the entire trial that the resulting conviction violates due

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process.”

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F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006).

Gilmore v. Taylor, 508 U.S. 333,

When a

Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450

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The

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court must evaluate the alleged instructional error in light of the

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overall charge to the jury.

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(2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v.

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Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S.

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1079 (1998).

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habeas petitioner faces an “especially heavy” burden.

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Kibbe, 431 U.S. at 155.

Middleton v. McNeil, 541 U.S. 433, 437

In challenging a failure to give an instruction, a
Henderson v.

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C.

The Omission of the “Contextual Factors” from the Kidnapping
Instruction Does Not Merit Federal Habeas Relief.

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California Penal Code section 207(a) provides:

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Every person who forcibly, or by any other means of

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instilling fear, steals or takes, or holds, detains, or

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arrests any person in this state, and carries the person

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into another country, state, or county, or into another part

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of the same county, is guilty of kidnapping.

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To prove simple kidnapping under section 207(a), the prosecution

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must show that the asportation of the victim was “substantial in

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character.”

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2d 533, 973 P.2d 512 (1999) (citation and internal quotations omitted)

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(“Martinez”).

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distance,” however.

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that asportation for simple kidnapping was to be determined solely by

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the distance moved).

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that, in a simple kidnapping case, it would be “proper for the court

People v. Martinez, 20 Cal. 4th 225, 235, 83 Cal. Rptr.

The trier of fact may consider more than “actual
Id. at 235-37 (overruling prior case law holding

In Martinez, the California Supreme Court held

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to instruct that, in determining whether the movement is ‘substantial

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in character’ [citation], the jury should consider the totality of the

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circumstances.”

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permitted, the jury might properly consider not only the actual

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distance the victim is moved, but also such factors as whether that

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movement increased the risk of harm above that which existed prior to

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the asportation, decreased the likelihood of detection, and increased

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both the danger inherent in a victim's foreseeable attempts to escape

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and the attacker's enhanced opportunity to commit additional crimes.”

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Id. at 237.

“Thus, in a case where the evidence

Id. (footnote omitted).

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Here, the trial court instructed the jury to consider the

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“totality of the circumstances” in determining whether the movement of

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the victims was substantial, but did not instruct on the specific

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“contextual factors” the jury might consider under Martinez.

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indicated that a jury “may convict of simple kidnapping without

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finding an increase in harm, or any other contextual factors.”

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“Instead, . . . the jury need only find that the victim was moved a

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distance that was “‘substantial in character.’”

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omitted).

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circumstances’ is intended simply to direct attention to the evidence

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presented in the case, rather than to abstract concepts of distance.”

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Id.

Martinez

Id.

Id. (citations

“To permit consideration of ‘the totality of the

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Acknowledging that Martinez did not expressly mandate a jury

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instruction on the contextual factors, the Court of Appeal in

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Petitioner’s case nevertheless stated that it would be reasonable to

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read Martinez as requiring such an instruction (Respondent’s Lodgment
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7, pp. 10-11; see People v. Martinez, 2016 WL 3773400, at *6).

The

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Court of Appeal stated that simply instructing the jury to consider

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the “totality of the circumstances” “arguably [is] too vague to

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provide guidance”(id.).5

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“hypothetical error” was not prejudicial in light of the evidence that

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Petitioner: (1) moved the victims in sequence to a Rite Aid, a 7-

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Eleven, the victims’ home, a set of train tracks, a trailer park, and

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then back to the victims’ home; and (2) moved Brenita to a park and

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then back home again (Respondent’s Lodgment 7, p. 11; see People v.

However, the Court of Appeal ruled that any

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Martinez, 2016 WL 3773400, at *6).

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the movement of Brenita and Dominique necessarily increased the risk

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of harm to them because it gave Petitioner “an increased opportunity

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to commit additional crimes and avoid detection because he could have

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made good on his threats to kill Brenita and Dominique at the train

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tracks without leaving evidence of such crimes at their house, and

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without neighbors hearing any cries for help or any gunshots”

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(Respondent’s Lodgment 7, p. 11; see People v. Manuel, 2016 WL

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3773400, at *6).

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car to transport Brenita and Dominique increased the risk of danger to

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the victims “if they tried to escape while in transit from one place

The Court of Appeal reasoned that

The Court of Appeal also reasoned that the use of a

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But see People v. Brooks, 3 Cal. 5th 1, 219 Cal. Rptr.
3d 331, 396 P.3d 480 (2017), cert. denied,
U.S.
, 2017 WL
4409978 (Dec. 4, 2017) (because Martinez indicated that a jury
could determine the asportation element of simple kidnapping
“solely on the basis of the actual distance the victim was moved”
without finding an increase in harm or other contextual factors,
an instruction which included the contextual factors “concerned,
not the entirety of the definition of asportation, but rather one
of the theories under which the jury was told the element of
asportation could be established, a theory that was not itself
necessary for the verdict”) (citation and internal quotations
omitted).
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to the other” (Respondent’s Lodgment 7, p. 11; see People v. Manuel,

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2016 WL 3773400, at *6).

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federal constitutional error set forth in Chapman v. California, 386

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U.S. 18, 24 (1967) (“Chapman”) to Petitioner’s federal claim, the

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Court of Appeal concluded that, “[b]eyond a reasonable doubt, the jury

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would have concluded that Manuel moved Brenita and Dominique a

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substantial distance even if the jury had been instructed on the

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contextual factors regarding asportation (Respondent’s Lodgment 7, pp.

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10-11; see People v. Manuel, 2016 WL 3773400, at *6).

Applying the harmless error standard for

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11

Assuming arguendo that federal constitutional error occurred,

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federal habeas relief would still be unavailable unless the Court of

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Appeal unreasonably applied Chapman.

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F.3d 1018, 1023 (9th Cir. 2016), cert. denied, 137 S. Ct. 1119 (2017).

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The evidence showed that: (1) at the house on the day of the incident,

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Petitioner yelled at Brenita and hit, slapped and punched her in the

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face, arms, leg, head and ankle: (2) after Petitioner forced Brenita

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and Dominique to change into provocative clothing, he told the victims

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to get in the car so he could go sell their bodies; (3) Dominique

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obeyed Petitioner’s order to get in the car because she was scared;

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(4) Petitioner drove several blocks to a Rite Aid; (5) at the Rite

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Aid, Petitioner yelled at Brenita to get out of the car and go to the

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bus stop to sell her body; (6) Petitioner walked behind Brenita to the

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bus stop, where he attempted to solicit passersby to engage in

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prostitution with Brenita and Dominique; (7) Petitioner reentered the

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car and drove with Dominique to a nearby 7-Eleven; (8) Petitioner

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parked at the 7-Eleven and told Dominique “if you move, I will kill

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you”; (9) Petitioner left Dominique in the car and walked across two
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See Rademaker v. Paramo, 835

1

streets to Brenita’s location at the bus stop; (10) Brenita followed

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Petitioner’s order to get in the car; (11) Petitioner drove past the

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Rite Aid and the 7-Eleven to an alley by the train tracks; (12)

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Petitioner stopped the car and told the victims to exit the car,

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saying that he was going to kill them and put their bodies by the

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train tracks; (13) Petitioner tried to drag the victims out of the car

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but they resisted; (14) Petitioner drove the victims home and told

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Brenita to cook and Dominique to clean; (15) Petitioner told Brenita

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to get back in the car and drove to a park; and (16) Petitioner drove

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to someone’s house, leaving Brenita in the car, then drove back to the

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house with Brenita and parked in the driveway next door (R.T. 340-41,

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343-50; 357-59, 360-62, 364-67, 371-72, 374, 382-85, 387-89, 391-92,

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395-97, 409-13, 417, 421-22, 616-17, 621-26, 628-38, 643-48, 659-60,

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662-66, 669-74, 680-81).

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movement of the victims was “substantial” in character.

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the Court of Appeal reasonably concluded, this evidence proved that

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the movement of the victims “increased the risk of harm above that

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which existed prior to the asportation, decreased the likelihood of

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detection, and increased both the danger inherent in a victim's

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foreseeable attempts to escape and the attacker's enhanced opportunity

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to commit additional crimes.”

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light of this evidence, the Court of Appeal’s harmless error

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determination cannot be deemed unreasonable.

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835 F.3d at 1023-24 (where trial court applied a post-Martinez

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instruction on contextual factors to a pre-Martinez charge, the Court

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of Appeal found the error harmless, and the federal habeas court

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deemed the Court of Appeal’s finding not unreasonable; the jury

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properly would have convicted the petitioner of kidnapping under

The evidence plainly showed that the
Moreover, as

See Martinez, 20 Cal. 3d at 237.

16

In

See Rademaker v. Paramo,

1

either standard, given evidence that petitioner moved the victim a

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“substantial distance” of approximately a mile and a half); People v.

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Brooks, 3 Cal. 5th 1, 219 Cal. Rptr. 3d 331, 396 P.3d 480 (2017),

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cert. denied,

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use of post-Martinez asportation instruction to pre-Martinez

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aggravated kidnapping harmless beyond a reasonable doubt, where

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evidence showed defendant drove victim once for 15-20 minutes and a

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second time for 5-10 minutes, and suggested even longer drives).

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Under the AEDPA standard of review, Petitioner is not entitled to

U.S.

, 2017 WL 4409978 (Dec. 4, 2017) (erroneous

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federal habeas relief on Ground One of the Petition.

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2254(d); Harrington v. Richter, 562 U.S. 86, 101 (2011).

See 28 U.S.C. §

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13

D.

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The Failure to Give an “Associated Crime” Instruction Does
Not Merit Federal Habeas Relief.

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In Martinez, the California Supreme Court also indicated that,

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“in a case involving an associated crime, the jury should be

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instructed to consider whether the distance a victim was moved was

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incidental to the commission of that crime in determining the

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movement's substantiality.”

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purposes of simple kidnapping, an “associated crime” is “any criminal

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act the defendant intends to commit where, in the course of its

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commission, the defendant also moves a victim by force or fear against

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his or her will.”

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Cal. Rptr. 3d 300 (2009) (original emphasis).

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crime’ is involved, there can be no violation of section 207 unless

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the asportation is more than incidental to the commission of that

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crime.”

Martinez, 20 Cal. 4th at 237.

For

People v. Bell, 179 Cal. App. 4th 428, 438-39, 102
“When an ‘associated

Id. at 437 (citation and internal quotations omitted).
17

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Petitioner contends that the movement of Brenita and Dominique

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was incidental to the other charged crimes, i.e., the alleged assault

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on Brenita, the threats and the human trafficking (Petition,

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attachment, pp. 17-18).

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holding that the evidence did not support an associated crime

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instruction.

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crimes did not occur at the same time Petitioner was moving Brenita

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and Dominique by force or fear, and, in any event, the continued

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movement of Brenita and Dominique after the completion of the non-

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kidnapping crimes was not incidental to those crimes (Respondent’s

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Lodgment 7, p. 12; see People v. Manuel, 2016 WL 3773400, at *7).

The Court of Appeal rejected this claim,

The Court of Appeal reasoned that the non-kidnapping

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The Court of Appeal’s decision was not unreasonable.

The

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evidence, described above, proved that: (1) Petitioner assaulted

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Brenita before the kidnapping began; and (2) Petitioner continued to

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move the victims after he made the threats and allegedly engaged in

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human trafficking.

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291-94, 186 Cal. Rptr. 3d 475 (2015) (where defendant engaged in

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multiple acts of harmful or offensive touching of victim before,

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during and after the dragging movement that comprised the kidnapping,

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domestic violence battery was an associated crime of kidnapping only

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to the extent the acts of touching involved defendant’s dragging of

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victim and stuffing her in a closet; failure to give “associated

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crimes” instruction prejudicial only to that extent; however, assault

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with a firearm was not an associated crime of kidnapping where assault

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“involved no movement at all, and was complete before the movement

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which comprised the kidnapping began”).

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reasonably determined that the evidence did not support an associated

See People v. Delacerda, 236 Cal. App. 4th 282,

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The Court of Appeal

1

crime instruction.

Therefore, the failure to give such an instruction

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did not render Petitioner’s conviction fundamentally unfair.

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Ortiz v. Trimble, 2013 WL 2153285, at *14 (N.D. Cal. May 16, 2016)

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(failure to give associated crime instruction harmless, where any

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reasonable juror would have determined that movement was substantial

6

and beyond that merely incidental to the other crimes).

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Petitioner is not entitled to federal habeas relief on Ground Two of

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the Petition.

9

U.S. at 101.

See

Accordingly,

See 28 U.S.C. § 2254(d); Harrington v. Richter, 562

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RECOMMENDATION

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For the reasons discussed above, IT IS RECOMMENDED that the Court

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issue an order:

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Recommendation; and (2) denying and dismissing the Petition with

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prejudice.

(1) accepting and adopting this Report and

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DATED:

December 8, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report