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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 KEVIS LAVELL MANUEL, ) NO. CV 17-6333-AB(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) WARDEN J. SUTTON, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 André Birotte, Jr., United States District Judge, pursuant to 28 20 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Petitioner filed a “Petition for Habeas Corpus By a Person in 26 State Custody” on August 28, 2017. 27 October 9, 2017. 28 time. Respondent filed an Answer on Petitioner did not file a Reply within the allotted 1 BACKGROUND 2 3 A jury found Petitioner guilty of: (1) two counts of kidnapping 4 Brenita Doe and Dominique Doe in violation of California Penal Code 5 section 207(a); (2) two counts of making criminal threats in violation 6 of California Penal Code section 422(a); and (3) injuring a former 7 cohabitant, girlfriend or child’s parent after a prior conviction in 8 violation of California Penal Code section 273.5(f)(2) (Reporter’s 9 Transcript [“R.T.”] 1203-07; Clerk’s Transcript [“C.T.”] 192-93). The 10 jury acquitted Petitioner of human trafficking of Dominique Doe and 11 found not true the allegations that Petitioner personally used a 12 firearm in the commission of the offenses (R.T. 1204-06; C.T. 192-93). 13 The jury deadlocked on a count of human trafficking of Brenita Doe, 14 and the court declared a mistrial as to that count (R.T. 1209; C.T. 15 193-94). 16 17 Petitioner admitted suffering prior convictions qualifying for 18 sentence enhancements under California Penal Code sections 19 667.5(b) (R.T. 702-03, 1502-03; C.T. 234-35). 20 admitted suffering a prior conviction qualifying as a strike under 21 California’s Three Strikes Law, California Penal Code sections 667(b) 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 667(a) and Petitioner also 1 - (i) and 1170.12(a) - (d) (R.T. 1502-03; C.T. 234).1 2 received a prison sentence of nineteen years and four months (R.T. 3 1509-11; C.T. 235-38). Petitioner 4 5 The California Court of Appeal affirmed (Respondent’s Lodgment 6; 6 see People v. Manuel, 2016 WL 3773400 (Cal. App. July 12, 2016). 7 California Supreme Court denied Petitioner’s petition for review 8 summarily (Respondent’s Lodgment 9). The 9 10 SUMMARY OF TRIAL EVIDENCE 11 12 The Court has conducted an independent review of the Reporter’s 13 Transcript and has confirmed that the following summary of the 14 evidence in People v. Manuel, 2016 WL 3773400 (Cal. App. July 12, 15 2016) is accurate. 16 Cir. 2017); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) 17 (taking factual summary from state court decision). 18 observes that, in Petitioner’s petition for review to the California 19 Supreme Court, Petitioner incorporated the Court of Appeal’s factual 20 summary (see Respondent’s Lodgment 10, p. 6). 21 /// 22 /// See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th The Court 23 1 24 25 26 27 28 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). 3 1 On May 28, 2014, Manuel questioned Brenita Doe 2 (Brenita),2 his intermittent girlfriend, about another man. 3 In the living room of their house, he cussed and yelled at 4 her, accused her of lying, and then hit her in the face and 5 shoulders. 6 Gabriel and Kjohny — were in the house but in different 7 rooms.3 Brenita's four children—Marcquis, Dominique, 8 9 Brenita ran out of the house and down the street to get 10 help. 11 in front of the house. 12 took her inside where he repeatedly slapped and punched her. 13 Eventually, he instructed Brenita to put on a short dress 14 and Dominique, who was 12 years old, to put on short shorts. 15 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 16 17 After Brenita and Dominique changed, Manuel forced them 18 into the family's car. 19 Brenita to get out and make some money. 20 to a bus stop and took a seat. 21 to passersby. 22 daughter in his car. 23 She got out, went Manuel offered her for sale He told them he had Brenita's 12–year–old /// 24 He drove them to a Rite Aid and told /// 25 26 2 The trial court concealed Brenita's full name by referring to her as Brenita Doe. 27 3 28 Manuel is Kjohny's father but not the father of Marcquis, Dominique and Gabriel. 4 1 No one accepted Manuel's solicitations. Eventually, he 2 drove Dominique to a 7–Eleven across the street from the 3 Rite Aid and parked while Brenita remained at the bus stop. 4 Manuel got out of the car and told Dominique that if she 5 moved, he would kill her. 6 pulled a gun part way out of his waistband so it was visible 7 to Dominique. 8 Subsequently, he tucked the gun back into his waistband and 9 threatened Dominique by saying, “If you scream or if you 10 While making the threat, Manuel Then he pointed the gun at her head. yell or get out, I'll kill you.” 11 12 Manuel made Brenita return to the car and told her to 13 get inside. After she complied, he drove back to the house. 14 15 Shortly thereafter, Manuel drove Brenita and Dominique 16 to some train tracks. He turned off the car and told them 17 to get out. 18 them, but they fought back. 19 them. 20 car. 21 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 22 23 At home, Manuel told Brenita to cook food. Later, he 24 told her to get back in the car so they could take another 25 ride. 26 complied. 27 He drove to a park. /// 28 Because she was afraid he would hit her, she /// 5 1 Dominique told Marcquis to call the police. 2 to some neighbors and asked them to make the call. 3 the neighbors called 911. 4 Brenita, the police were present. 5 driveway and got out. 6 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. 7 8 (Respondent’s Lodgment 7, pp. 3-4; see People v. Manuel, 2016 WL 9 3773400, at *1-2). 10 11 PETITIONER’S CONTENTIONS 12 13 14 Petitioner asserts two related claims of alleged instructional error: 15 16 1. The trial court allegedly erred by failing to instruct the 17 jury on the “contextual factors” contained in CALCRIM 1215 with 18 respect to the asportation requirement of simple kidnapping (Ground 19 One); and 20 21 2. The trial court allegedly erred by failing to instruct the 22 jury to consider whether the movement of the victims was incidental to 23 the other alleged “associated crimes” (Ground Two). 24 25 STANDARD OF REVIEW 26 27 28 Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of 6 1 habeas corpus on behalf of a person in state custody with respect to 2 any claim that was adjudicated on the merits in state court 3 proceedings unless the adjudication of the claim: 4 decision that was contrary to, or involved an unreasonable application 5 of, clearly established Federal law, as determined by the Supreme 6 Court of the United States”; or (2) “resulted in a decision that was 7 based on an unreasonable determination of the facts in light of the 8 evidence presented in the State court proceeding.” 9 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. (1) “resulted in a 28 U.S.C. § 10 Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 11 (2000). 12 13 “Clearly established Federal law” refers to the governing legal 14 principle or principles set forth by the Supreme Court at the time the 15 state court renders its decision on the merits. 16 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). 17 state court’s decision is “contrary to” clearly established Federal 18 law if: 19 Court law; or (2) it “confronts a set of facts . . . materially 20 indistinguishable” from a decision of the Supreme Court but reaches a 21 different result. 22 omitted); Williams v. Taylor, 529 U.S. at 405-06. Greene v. Fisher, 565 A (1) it applies a rule that contradicts governing Supreme See Early v. Packer, 537 U.S. at 8 (citation 23 24 Under the “unreasonable application” prong of section 2254(d)(1), 25 a federal court may grant habeas relief “based on the application of a 26 governing legal principle to a set of facts different from those of 27 the case in which the principle was announced.” 28 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 7 Lockyer v. Andrade, 1 U.S. at 24-26 (state court decision “involves an unreasonable 2 application” of clearly established federal law if it identifies the 3 correct governing Supreme Court law but unreasonably applies the law 4 to the facts). 5 6 “In order for a federal court to find a state court’s application 7 of [Supreme Court] precedent ‘unreasonable,’ the state court’s 8 decision must have been more than incorrect or erroneous.” 9 Smith, 539 U.S. 510, 520 (2003) (citation omitted). Wiggins v. “The state 10 court’s application must have been ‘objectively unreasonable.’” 11 at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 12 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th 13 Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005). 14 habeas court must determine what arguments or theories supported, 15 . . . or could have supported, the state court’s decision; and then it 16 must ask whether it is possible fairminded jurists could disagree that 17 those arguments or theories are inconsistent with the holding in a 18 prior decision of this Court.” 19 101 (2011). 20 2254(d)(1).” 21 Habeas relief may not issue unless “there is no possibility fairminded 22 jurists could disagree that the state court’s decision conflicts with 23 [the United States Supreme Court’s] precedents.” 24 for obtaining habeas corpus from a federal court, a state prisoner 25 must show that the state court’s ruling on the claim being presented 26 in federal court was so lacking in justification that there was an 27 error well understood and comprehended in existing law beyond any 28 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). 8 Id. Id. at 103. “As a condition 1 In applying these standards, the Court usually looks to the last 2 reasoned state court decision, here the decision of the California 3 Court of Appeal. 4 Cir. 2008). See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th DISCUSSION4 5 6 7 A. Background 8 9 10 The trial court instructed the jury using CALCRIM 1215 as follows: 11 12 13 The defendant is charged in Count 1 and Count 2 with kidnapping in violation of Penal Code section 207(a). 14 15 16 To prove the defendant is guilty of this crime, the People must prove that: 17 18 1. 19 person by using force or by instilling reasonable 20 fear; The defendant took, held, or detained another 21 22 2. 23 moved the other person or made the other person . . . Using that force or fear, the defendant 24 25 26 27 28 4 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). 9 1 move a substantial distance; and 2 3 3. The other person did not consent to the movement. 4 5 In order to consent, a person must act freely and 6 voluntarily and know the nature of the act. 7 8 Substantial distance means more than slight or trivial 9 distance. In deciding whether the distance was substantial, 10 you must consider all the circumstances relating to the 11 movement. 12 13 (R.T. 940-41; see C.T. 140). 14 15 16 The court did not include the following language, which is contained in brackets within CALCRIM 1215: 17 18 [Thus, in addition to considering the actual distance moved, 19 you may also consider other factors such as [whether the 20 distance the other person was moved was beyond that merely 21 incidental to the commission of 22 associated crime>], whether the movement increased the risk 23 of [physical or psychological] harm, increased the danger of 24 a foreseeable escape attempt, or gave the attacker a greater 25 opportunity to commit additional crimes, or decreased the 26 likelihood of detection.] 27 /// 28 /// 10 <insert 1 Petitioner contends that, if the court had included in the 2 kidnapping instruction the “contextual factors” contained in the 3 bracketed language set forth above, the jury purportedly could have 4 found that the movement of Brenita and Dominique was incidental to the 5 assault, the making of criminal threats and the alleged human 6 trafficking (Petition, attachment, pp. 17-22). 7 argues, the jury could have found that the movement of the victims was 8 not “substantial,” as required for a simple kidnapping conviction 9 (Petition, attachment, pp. 17-22). Therefore, Petitioner The Court of Appeal rejected 10 Petitioner’s claims, ruling that any error in failing to instruct on 11 “contextual factors” was harmless and that an “associated crime” 12 instruction was not warranted by the evidence (Respondent’s Lodgment 13 9, pp. 10-12; see People v. Manuel, 2016 WL 3773400, at *5-7). 14 15 B. Governing Legal Standards 16 17 “[I]nstructions that contain errors of state law may not form the 18 basis for federal habeas relief.” 19 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) 20 (“the fact that the instruction was allegedly incorrect under state 21 law is not a basis for habeas relief”); Dunckhurst v. Deeds, 859 F.2d 22 110, 114 (9th Cir. 1988) (instructional error “does not alone raise a 23 ground cognizable in a federal habeas corpus proceeding”). 24 federal habeas petitioner challenges the validity of a state jury 25 instruction, the issue is “whether the ailing instruction by itself so 26 infected the entire trial that the resulting conviction violates due 27 process.” 28 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 11 The 1 court must evaluate the alleged instructional error in light of the 2 overall charge to the jury. 3 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. 4 Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 5 1079 (1998). 6 habeas petitioner faces an “especially heavy” burden. 7 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. 8 9 10 C. The Omission of the “Contextual Factors” from the Kidnapping Instruction Does Not Merit Federal Habeas Relief. 11 12 California Penal Code section 207(a) provides: 13 14 Every person who forcibly, or by any other means of 15 instilling fear, steals or takes, or holds, detains, or 16 arrests any person in this state, and carries the person 17 into another country, state, or county, or into another part 18 of the same county, is guilty of kidnapping. 19 20 To prove simple kidnapping under section 207(a), the prosecution 21 must show that the asportation of the victim was “substantial in 22 character.” 23 2d 533, 973 P.2d 512 (1999) (citation and internal quotations omitted) 24 (“Martinez”). 25 distance,” however. 26 that asportation for simple kidnapping was to be determined solely by 27 the distance moved). 28 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 12 1 to instruct that, in determining whether the movement is ‘substantial 2 in character’ [citation], the jury should consider the totality of the 3 circumstances.” 4 permitted, the jury might properly consider not only the actual 5 distance the victim is moved, but also such factors as whether that 6 movement increased the risk of harm above that which existed prior to 7 the asportation, decreased the likelihood of detection, and increased 8 both the danger inherent in a victim's foreseeable attempts to escape 9 and the attacker's enhanced opportunity to commit additional crimes.” 10 Id. at 237. “Thus, in a case where the evidence Id. (footnote omitted). 11 12 Here, the trial court instructed the jury to consider the 13 “totality of the circumstances” in determining whether the movement of 14 the victims was substantial, but did not instruct on the specific 15 “contextual factors” the jury might consider under Martinez. 16 indicated that a jury “may convict of simple kidnapping without 17 finding an increase in harm, or any other contextual factors.” 18 “Instead, . . . the jury need only find that the victim was moved a 19 distance that was “‘substantial in character.’” 20 omitted). 21 circumstances’ is intended simply to direct attention to the evidence 22 presented in the case, rather than to abstract concepts of distance.” 23 Id. Martinez Id. Id. (citations “To permit consideration of ‘the totality of the 24 25 Acknowledging that Martinez did not expressly mandate a jury 26 instruction on the contextual factors, the Court of Appeal in 27 Petitioner’s case nevertheless stated that it would be reasonable to 28 read Martinez as requiring such an instruction (Respondent’s Lodgment 13 1 7, pp. 10-11; see People v. Martinez, 2016 WL 3773400, at *6). The 2 Court of Appeal stated that simply instructing the jury to consider 3 the “totality of the circumstances” “arguably [is] too vague to 4 provide guidance”(id.).5 5 “hypothetical error” was not prejudicial in light of the evidence that 6 Petitioner: (1) moved the victims in sequence to a Rite Aid, a 7- 7 Eleven, the victims’ home, a set of train tracks, a trailer park, and 8 then back to the victims’ home; and (2) moved Brenita to a park and 9 then back home again (Respondent’s Lodgment 7, p. 11; see People v. However, the Court of Appeal ruled that any 10 Martinez, 2016 WL 3773400, at *6). 11 the movement of Brenita and Dominique necessarily increased the risk 12 of harm to them because it gave Petitioner “an increased opportunity 13 to commit additional crimes and avoid detection because he could have 14 made good on his threats to kill Brenita and Dominique at the train 15 tracks without leaving evidence of such crimes at their house, and 16 without neighbors hearing any cries for help or any gunshots” 17 (Respondent’s Lodgment 7, p. 11; see People v. Manuel, 2016 WL 18 3773400, at *6). 19 car to transport Brenita and Dominique increased the risk of danger to 20 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 21 22 23 24 25 26 27 28 5 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). 14 1 to the other” (Respondent’s Lodgment 7, p. 11; see People v. Manuel, 2 2016 WL 3773400, at *6). 3 federal constitutional error set forth in Chapman v. California, 386 4 U.S. 18, 24 (1967) (“Chapman”) to Petitioner’s federal claim, the 5 Court of Appeal concluded that, “[b]eyond a reasonable doubt, the jury 6 would have concluded that Manuel moved Brenita and Dominique a 7 substantial distance even if the jury had been instructed on the 8 contextual factors regarding asportation (Respondent’s Lodgment 7, pp. 9 10-11; see People v. Manuel, 2016 WL 3773400, at *6). Applying the harmless error standard for 10 11 Assuming arguendo that federal constitutional error occurred, 12 federal habeas relief would still be unavailable unless the Court of 13 Appeal unreasonably applied Chapman. 14 F.3d 1018, 1023 (9th Cir. 2016), cert. denied, 137 S. Ct. 1119 (2017). 15 The evidence showed that: (1) at the house on the day of the incident, 16 Petitioner yelled at Brenita and hit, slapped and punched her in the 17 face, arms, leg, head and ankle: (2) after Petitioner forced Brenita 18 and Dominique to change into provocative clothing, he told the victims 19 to get in the car so he could go sell their bodies; (3) Dominique 20 obeyed Petitioner’s order to get in the car because she was scared; 21 (4) Petitioner drove several blocks to a Rite Aid; (5) at the Rite 22 Aid, Petitioner yelled at Brenita to get out of the car and go to the 23 bus stop to sell her body; (6) Petitioner walked behind Brenita to the 24 bus stop, where he attempted to solicit passersby to engage in 25 prostitution with Brenita and Dominique; (7) Petitioner reentered the 26 car and drove with Dominique to a nearby 7-Eleven; (8) Petitioner 27 parked at the 7-Eleven and told Dominique “if you move, I will kill 28 you”; (9) Petitioner left Dominique in the car and walked across two 15 See Rademaker v. Paramo, 835 1 streets to Brenita’s location at the bus stop; (10) Brenita followed 2 Petitioner’s order to get in the car; (11) Petitioner drove past the 3 Rite Aid and the 7-Eleven to an alley by the train tracks; (12) 4 Petitioner stopped the car and told the victims to exit the car, 5 saying that he was going to kill them and put their bodies by the 6 train tracks; (13) Petitioner tried to drag the victims out of the car 7 but they resisted; (14) Petitioner drove the victims home and told 8 Brenita to cook and Dominique to clean; (15) Petitioner told Brenita 9 to get back in the car and drove to a park; and (16) Petitioner drove 10 to someone’s house, leaving Brenita in the car, then drove back to the 11 house with Brenita and parked in the driveway next door (R.T. 340-41, 12 343-50; 357-59, 360-62, 364-67, 371-72, 374, 382-85, 387-89, 391-92, 13 395-97, 409-13, 417, 421-22, 616-17, 621-26, 628-38, 643-48, 659-60, 14 662-66, 669-74, 680-81). 15 movement of the victims was “substantial” in character. 16 the Court of Appeal reasonably concluded, this evidence proved that 17 the movement of the victims “increased the risk of harm above that 18 which existed prior to the asportation, decreased the likelihood of 19 detection, and increased both the danger inherent in a victim's 20 foreseeable attempts to escape and the attacker's enhanced opportunity 21 to commit additional crimes.” 22 light of this evidence, the Court of Appeal’s harmless error 23 determination cannot be deemed unreasonable. 24 835 F.3d at 1023-24 (where trial court applied a post-Martinez 25 instruction on contextual factors to a pre-Martinez charge, the Court 26 of Appeal found the error harmless, and the federal habeas court 27 deemed the Court of Appeal’s finding not unreasonable; the jury 28 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 2 “substantial distance” of approximately a mile and a half); People v. 3 Brooks, 3 Cal. 5th 1, 219 Cal. Rptr. 3d 331, 396 P.3d 480 (2017), 4 cert. denied, 5 use of post-Martinez asportation instruction to pre-Martinez 6 aggravated kidnapping harmless beyond a reasonable doubt, where 7 evidence showed defendant drove victim once for 15-20 minutes and a 8 second time for 5-10 minutes, and suggested even longer drives). 9 Under the AEDPA standard of review, Petitioner is not entitled to U.S. , 2017 WL 4409978 (Dec. 4, 2017) (erroneous 10 federal habeas relief on Ground One of the Petition. 11 2254(d); Harrington v. Richter, 562 U.S. 86, 101 (2011). See 28 U.S.C. § 12 13 D. 14 The Failure to Give an “Associated Crime” Instruction Does Not Merit Federal Habeas Relief. 15 16 In Martinez, the California Supreme Court also indicated that, 17 “in a case involving an associated crime, the jury should be 18 instructed to consider whether the distance a victim was moved was 19 incidental to the commission of that crime in determining the 20 movement's substantiality.” 21 purposes of simple kidnapping, an “associated crime” is “any criminal 22 act the defendant intends to commit where, in the course of its 23 commission, the defendant also moves a victim by force or fear against 24 his or her will.” 25 Cal. Rptr. 3d 300 (2009) (original emphasis). 26 crime’ is involved, there can be no violation of section 207 unless 27 the asportation is more than incidental to the commission of that 28 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 1 Petitioner contends that the movement of Brenita and Dominique 2 was incidental to the other charged crimes, i.e., the alleged assault 3 on Brenita, the threats and the human trafficking (Petition, 4 attachment, pp. 17-18). 5 holding that the evidence did not support an associated crime 6 instruction. 7 crimes did not occur at the same time Petitioner was moving Brenita 8 and Dominique by force or fear, and, in any event, the continued 9 movement of Brenita and Dominique after the completion of the non- 10 kidnapping crimes was not incidental to those crimes (Respondent’s 11 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 12 13 The Court of Appeal’s decision was not unreasonable. The 14 evidence, described above, proved that: (1) Petitioner assaulted 15 Brenita before the kidnapping began; and (2) Petitioner continued to 16 move the victims after he made the threats and allegedly engaged in 17 human trafficking. 18 291-94, 186 Cal. Rptr. 3d 475 (2015) (where defendant engaged in 19 multiple acts of harmful or offensive touching of victim before, 20 during and after the dragging movement that comprised the kidnapping, 21 domestic violence battery was an associated crime of kidnapping only 22 to the extent the acts of touching involved defendant’s dragging of 23 victim and stuffing her in a closet; failure to give “associated 24 crimes” instruction prejudicial only to that extent; however, assault 25 with a firearm was not an associated crime of kidnapping where assault 26 “involved no movement at all, and was complete before the movement 27 which comprised the kidnapping began”). 28 reasonably determined that the evidence did not support an associated See People v. Delacerda, 236 Cal. App. 4th 282, 18 The Court of Appeal 1 crime instruction. Therefore, the failure to give such an instruction 2 did not render Petitioner’s conviction fundamentally unfair. 3 Ortiz v. Trimble, 2013 WL 2153285, at *14 (N.D. Cal. May 16, 2016) 4 (failure to give associated crime instruction harmless, where any 5 reasonable juror would have determined that movement was substantial 6 and beyond that merely incidental to the other crimes). 7 Petitioner is not entitled to federal habeas relief on Ground Two of 8 the Petition. 9 U.S. at 101. See Accordingly, See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 10 11 RECOMMENDATION 12 13 For the reasons discussed above, IT IS RECOMMENDED that the Court 14 issue an order: 15 Recommendation; and (2) denying and dismissing the Petition with 16 prejudice. (1) accepting and adopting this Report and 17 18 DATED: December 8, 2017. 19 20 21 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 19 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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