Cartwright v. Gipson

Filing 58

FINDINGS and RECOMMENDATION Regarding Petition for Writ of Habeas Corpus, signed by Magistrate Judge Michael J. Seng on 3/14/16: 30-Day Deadline. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13-cv-00463 AWI MJS (HC)
HENRY CARTWRIGHT,

FINDINGS AND RECOMMENDATION
Petitioner, REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

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v.

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ROBERT W. FOX, Warden,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent, warden of California Medical Facility,
Vacaville, is hereby substituted as the proper named respondent pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure. Respondent is represented by Max Feinstat of
the office of the Attorney General.

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I.

PROCEDURAL BACKGROUND
Petitioner is currently in the custody of the California Department of Corrections

pursuant to a judgment of the Superior Court of California, County of Kern, following his

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conviction by jury trial on September 24, 2009, for torture, assault with a deadly weapon,

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infliction of corporal injury resulting in a traumatic condition, criminal threats, and various

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enhancements. (Clerk's Tr. at 463-64.) Petitioner was sentenced to an indeterminate

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term of nineteen (19) years to life in state prison. (Id.)

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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

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District on December 30, 2010. (Lodged Doc. 1) The court affirmed the judgment on

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October 27, 2011. (Lodged Doc. 4, People v. Cartwright, 2011 Cal. App. Unpub. LEXIS

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8229 (Oct. 27, 2011).) On January 4, 2012, the California Supreme Court denied review.

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(Lodged Doc. 6.)

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Petitioner next sought collateral review by way of petitions for writ of habeas

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corpus in state court. Petitioner first filed a habeas corpus petition with the Kern County

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Superior Court on November 4, 2009. (Lodged Doc. 8.) The court denied the petition in a

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written decision on December 29, 2009. (Lodged Doc. 9.) Petitioner then filed a second

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habeas corpus petition with the Kern County Superior Court on May 17, 2010. (Lodged

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Doc. 10.) The petition was denied on August 15, 2010. (Lodged Doc. 11.) Petitioner filed

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a third habeas corpus petition with the Kern County Superior Court on August 20, 2010.

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(Lodged Doc. 12.) The court denied the petition on October 1, 2010. (Lodged Doc. 13.)

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Petitioner filed a fourth habeas corpus petition with the Kern County Superior Court on

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June 28, 2011. (Lodged Doc. 14.) The court denied the petition on August 29, 2011.

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(Lodged Doc. 15.) Petitioner filed a fifth habeas corpus petition with the Kern County

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Superior Court on July 25, 2011. (Lodged Doc. 16.) The court denied the petition on

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August 17, 2011. (Lodged Doc. 17.)

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Petitioner then filed for habeas relief with the Fifth District Court of Appeal on

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August 8, 2012. (Lodged Doc. 18.) Pursuant to Petitioner's request, the court dismissed

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the petition on September 19, 2012. (Lodged Doc. 19.)

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Finally Petitioner sought habeas review from the California Supreme Court. He

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filed his first petition with the court on May 11, 2012. (Lodged Doc. 20.) The court denied

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the petition on July 25, 2012. (Lodged Doc. 21.) Petitioner filed a second petition with the
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California Supreme Court on March 21, 2013. (Lodged Doc. 22.) The court denied the

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petition on May 22, 2013. (Lodged Doc. 23.)

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Petitioner filed the instant federal habeas petition on March 29, 2013. (Pet., ECF

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No. 1.) On December 1, 2014, Petitioner filed an amended petition with the Court. (Am.

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Pet., ECF No. 27.) Petitioner presents six claims for relief in the instant petition.

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Petitioner alleges: (1) that there was insufficient evidence to support the convictions for

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infliction of great bodily injury and torture based on the undetermined severity of the

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burns suffered by the victim; (2) that the definition of great bodily injury under California

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law is constitutionally vague; (3) that the trial court erred in failing to declare a mistrial

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after the prosecution asked a question that informed the jury of Petitioner's past criminal

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acts; (4) that Petitioner's right to effective assistance of counsel was violated; (5) that the

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cumulative effect of errors committed at trial rendered the proceedings fundamentally

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unfair; and (6) that Petitioner's sentence for his conviction for criminal threats should be

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stayed, rather than run concurrently with the sentences from his other convictions. (Id. at

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4-6.)

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Despite the fact that the answer was filed with the Court, Petitioner filed a motion for

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court order granting habeas relief for Respondent's failure to answer the Petition on May

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26, 2015. (ECF No. 40.) Observing that Petitioner did not receive a copy of the answer,

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Respondent served Petitioner with another copy of the answer on June 10, 2015. (ECF

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No. 42.) Despite filing several motions for extension of time, Petitioner did not timely file

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a traverse. Accordingly, the matter stands ready for adjudication.

Respondent filed an answer to the petition on April 23, 2015. (ECF No. 38.)

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II.

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As of 2009, defendant and Kimberly D. had lived together in
Bakersfield for four years, but they were not married. They had two
children together; however, both children had been removed from their
custody and placed with Kimberly's mother, Sheila D. (Sheila). Kimberly

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STATEMENT OF THE FACTS1

The Fifth District Court of Appeal’s summary of the facts in its October 27, 2011 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).
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had two older children from prior relationships, both of whom had also
been removed from her custody; one of those children also lived with
Sheila.
Kimberly worked as an exotic dancer at "adult entertainment" clubs
in Bakersfield and Southern California. Kimberly's relationship with her
children and Sheila deteriorated as she continued to live with defendant
and work as a dancer. Kimberly seldom called or saw her mother.
Kimberly had received supervised weekly visitation rights with her two
youngest children, but she repeatedly failed to visit them. On one
occasion, she cancelled a scheduled visit and told Sheila that she did not
want the children to see that she had a black eye. Kimberly eventually lost
her parental rights to all her children.
The voicemail recording
On the evening of January 22, 2009, Sheila attended church with
the children. When she left the service, she discovered that a voicemail
message had been left on her cell phone a few hours earlier. The call had
been placed to Sheila's cell phone from the landline telephone at
Kimberly's apartment. Sheila listened to the message and heard
screaming.
The voicemail recording did not consist of a conventional cell phone
message. Instead, it recorded a chaotic and harrowing exchange between
a man and a woman, as the man apparently attacked the woman with a
hot clothes iron. Sheila testified the voices belonged to defendant and
Kimberly.
As the recording began, defendant declared that he was going to
get Kimberly and she was going to die. Kimberly insisted that she didn't
want anyone else. Kimberly wailed and moaned that defendant was
burning her with an iron. Defendant repeatedly said that she would "burn
in hell," and "[t]his is your day." Kimberly cried and pleaded with defendant
that she loved him. Defendant replied that she was lying, and that he
warned her not to fool around. Kimberly again cried out that he was
burning her with the iron, and he was burning her for nothing because she
was not involved with someone else.
Defendant repeatedly declared that she was going to die that day.
Kimberly pleaded with defendant to stop and again said that she loved
him. Defendant said she was going to die, and he was going to burn her
until she "cap[ped] out." Kimberly swore that she loved him and not
someone else. Defendant replied: "Bitch, you hoe ass mother f*****." The
recording ended abruptly.
Kimberly's initial statements
After Sheila listened to the voicemail recording, she saved it on her
cell phone and called Kimberly to check on her welfare. Kimberly said she
was okay and that the incident had occurred earlier that day. Kimberly
said she could not talk because defendant was present. Kimberly
promised to "take care" of the situation the next day. Sheila told Kimberly
that she would report the incident to the police if Kimberly failed to do so.

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Kimberly arrives at Sheila's house
On January 23, 2009, Sheila called Kimberly but could not reach
her. Sheila called the police and reported the previous day's incident.
Later that day, a dispatch operator advised Sheila that a patrol car went to
Kimberly's residence, and Kimberly had refused service.[fn2]
FN2: At trial, Kimberly testified that her mother sent the police to her
apartment to check on her, and she told them that she was okay. Also at
trial, Bakersfield Police Officer Pence testified that based on dispatch
records, officers went to Kimberly's apartment to conduct a welfare check,
they spoke with Kimberly, and she appeared to be okay. The officers who
conducted the welfare check did not testify.
Late that evening, Kimberly and a girlfriend arrived at Sheila's
house, and Kimberly asked to see her children. Kimberly had a sweater on
her arm, and then took it off and complained the sweater was hurting her
arm.
Sheila testified that Kimberly had burn marks on her face and arm.
There was a "brown spot" on the left side of Kimberly's face and jaw in the
shape and mark of a clothes iron. Kimberly's left arm was burned from her
shoulder to the inside of her elbow in the triceps area. Sheila could see
"the prints of an iron going up her arm," that were "pressed — like angles."
Sheila testified the burn marks were raw, red, pink, and had pus on them.
Kimberly had covered the burns with some type of ointment.
Kimberly told Sheila that she was going to Los Angeles for the
weekend with her girlfriend. Kimberly said she couldn't work at the
nightclub because of the burns, and she needed to get away from
defendant. Kimberly promised to "take care" of the situation when she
returned.
Kimberly talks to the police
A few days later, Kimberly returned to Bakersfield but told her
mother that she was not ready to talk to the police. On January 29, 2009,
Kimberly finally said that she was ready, and Sheila and Kimberly filed a
report with the police department about the assault.
Officer Pence interviewed Kimberly at Sheila's house. Sheila played
the voicemail recording for Pence, and Kimberly was present and listened
to it with them. Kimberly told Pence that the recorded voices belonged to
defendant and herself. Kimberly said the incident started in her bedroom
when she received a telephone call from her former boyfriend. Defendant
became angry and they argued. Kimberly said defendant grabbed her by
the hair and dragged her. Defendant held her on the ground, pinned down
her left arm, and burned her with a hot iron. Kimberly said she repeatedly
told defendant that she would call the police if he did not stop burning her.
Defendant finally got off her and left the apartment. Kimberly told Pence
that she was afraid of defendant.
Pence took several photographs of Kimberly's face and arm. Sheila
testified that Kimberly's burns appeared to be "more healed" in Pence's
photographs. Sheila explained the burns were more pink and covered with
pus when she initially saw them the previous week.
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Defendant's arrest
On the morning of January 30, 2009, several officers went to the
apartment where defendant lived with Kimberly. The officers knocked,
announced their presence, and called the apartment's telephone – but no
one responded or answered. They entered the apartment through an open
window and found defendant hiding in the bathtub.
Officer Pence advised defendant of the warnings pursuant to
Miranda v. Arizona (1966) 384 U.S. 436, and the reason for his arrest.
Defendant denied that he burned Kimberly, and claimed she was injured
when she was in Los Angeles the previous week. Defendant added that
Pence "didn't know, that [Pence] wasn't there and [defendant] was."
Pence found an iron from the bedroom and showed it to defendant.
Defendant said that "wasn't even the right iron" and claimed Kimberly had
three irons.
After defendant was taken into custody, Officer Pence met with
Kimberly, showed her the iron, and said that defendant claimed she had
three irons. Kimberly said defendant burned her with that particular iron
and it was the only one she owned. Pence testified the iron matched the
"distinguished pattern inside the burn" on the back of Kimberly's arm.
Kimberly's prosecution testimony
Kimberly testified at trial as a rather uncooperative prosecution
witness. By the time of trial, she had been in custody for three weeks
because she had refused to appear in court and testify against defendant.
Kimberly described defendant as her "husband," and said she was still
involved in a relationship with him. Kimberly testified she was not a victim
or witness to any crime, and defendant never did any "bad things" to her.
Kimberly said Sheila did not like defendant, and Sheila was upset they did
not pay her enough for taking care of the children.
Kimberly was asked to listen to the voicemail recording from her
mother's cell phone. Kimberly said she did not recognize any of the
voices, she never talked to a police officer about that message, and she
never told her mother that defendant burned her. Kimberly said an officer
never took photographs of her, but conceded that she was depicted in the
pictures taken by Officer Pence.
Kimberly denied the scars on her arm were from an iron. Kimberly
was shown the iron taken from her apartment, and said she had two or
three other irons and that particular iron was the "expensive one."
Kimberly claimed there were no similarities between that iron and the
marks on her arm.

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Kimberly offered a variety of explanations for the scars and marks
on her body, and the recording left on Sheila's voicemail. Kimberly claimed
she suffered the scars from "working" when she "[c]ame down wrong."
Kimberly said she may have left the cordless telephone in her back pocket
while defendant was on top of her, and she inadvertently hit an autodial
key when they were "doing our stuff."

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Kimberly further explained that she may have gotten the marks on

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her body when she engaged in "[r]ole playing" as part of her "professional
activities" with paying clients at her apartment. She may have used the
cordless telephone for some of their "games," she recorded those
activities, and she kept the recordings at her apartment. Sheila had a key
to Kimberly's apartment, and Kimberly believed Sheila might have
removed and tampered with some of the recordings.
The prosecution's expert
Jeri Darr, a social worker, testified as the prosecution's expert
about domestic violence and battered women's syndrome. Darr testified
that a domestic violence victim often fails to report the abuse, and the
reporting party is frequently a concerned family member, a neighbor, or
someone who witnessed the violence. Darr further explained that a
domestic violence victim was generally more candid about the relationship
immediately after an incident of violence, primarily because she was still
traumatized, scared, and angry about what happened. It was also
extremely common for a domestic violence victim to later recant and deny
that she had suffered any injuries. It was not unusual for a victim to deny
the incident happened even when confronted with the recording of her
initial report.
DEFENSE EVIDENCE
Kimberly's defense testimony
Kimberly also testified as a cooperative defense witness and gave
additional conflicting statements about the scars on her body and the
source of the voicemail recording. Kimberly claimed she had multiple
injuries on her body from falling off the stage while working as a dancer.
Kimberly also claimed the scars might have been caused by Richard
Arvizu, who had been her "boss" at a telephone escort service. Kimberly
said that on January 17, 2009, she was in an altercation with Arvizu and
she was "positive" that he burned her with a flat iron and inflicted the
scars. Kimberly explained she could not accurately remember anything
that happened in January 2009 because she was "high" on drugs and that
time was "very foggy." However, she was certain that defendant did not
inflict the injuries on her.
Kimberly testified that on January 22, 2009, the date of the alleged
assault, she was not in Bakersfield because she was working at a club in
Los Angeles. She left "Mercedes" to watch her apartment while she was
gone.
Kimberly admitted Sheila took her to the police station and told her
to "be ready" to talk. Kimberly claimed that Sheila wanted her to lie about
defendant so Sheila could keep defendant away from the children. Sheila
promised Kimberly that she could see the children more often if defendant
"went away."
Additional defense evidence
Timothy Harlston, defendant's cousin, testified that he went to
Kimberly's apartment on January 22, 2009, the day of the alleged assault,
because he was looking for defendant. "Mercedes" was there, and she
said that Kimberly was out of town. Harlston testified that Sheila arrived at
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Kimberly's apartment and appeared to be looking for something. Sheila
went into Kimberly's room and left with a bag. Harlston never saw
defendant or Kimberly that day.

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Haliki Green testified that he had known defendant and Kimberly for
many years. Green worked in the adult entertainment industry as a dancer
and actor in pornographic movies. He was in custody on an unrelated
matter, and he had a prior conviction for giving false information to the
police.

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Green testified he worked with Kimberly in January 2009, they
engaged in some adult role-playing activities, and things got "a little
rough." These activities were both audio and videotaped. Green testified
Kimberly's voice was on the voicemail recording, but defendant was not
the male voice, and he refused to identify the man. Green testified Richard
Arvizu was probably the producer of that tape. Green explained Arvizu
was a rough operator, the participants in his productions were usually
injured, and his work could have involved burning.[fn3]

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FN3: Green had been in custody prior to trial, and claimed that someone
from the district attorney's office offered him a deal if he testified against
defendant. The prosecutor's investigator testified the jail logs showed that
Green was visited by the defense investigator, but there was no evidence
that he was visited by anyone associated with the prosecution.

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Convictions and sentence

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Defendant was charged and convicted of count II, torture; count III,
assault with a deadly weapon, an electric iron; count IV, infliction of
corporal injury resulting in a traumatic condition; and count V, criminal
threats. As to counts III and IV, the jury found defendant inflicted great
bodily injury under circumstances involving domestic violence (§ 12022.7,
subd. (e)). As to count IV, the jury found defendant personally used a
deadly weapon, an iron, in the commission of the offense (§ 12022, subd.
(b)(1)). The court found he had one prior serious felony conviction (§ 667,
subd. (a)), and one prior strike conviction (§ 667, subds. (b)-(i)).

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Defendant was also charged with count I, attempted murder (§§
664, 187), but he was found not guilty of that offense and not guilty of the
lesser included offense of attempted voluntary manslaughter.

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Defendant was sentenced to the second strike term of 14 years to
life for count II, torture, plus a consecutive term of five years for the prior
serious felony conviction. The remaining terms and enhancements were
either imposed concurrently or stayed.

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People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229, 1-14 (Oct. 27, 2011).
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III.

DISCUSSION

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A.

Jurisdiction

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Relief by way of a petition for writ of habeas corpus extends to a person in
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custody pursuant to the judgment of a state court if the custody is in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §

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2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he

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suffered violations of his rights as guaranteed by the U.S. Constitution.

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addition, the conviction challenged arises out of the Kern County Superior Court, which

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is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly,

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this Court has jurisdiction over the instant action.

(Pet.)

In

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B.

Legal Standard of Review

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus

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filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,

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114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment

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of the AEDPA and is therefore governed by AEDPA provisions.

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Under AEDPA, a person in custody under a judgment of a state court may only be

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granted a writ of habeas corpus for violations of the Constitution or laws of the United

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States. 28 U.S.C. § 2254(a); Williams, 529 U.S. at 375 n. 7. Federal habeas corpus

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relief is available for any claim decided on the merits in state court proceedings if the

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state court's adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
1.

Contrary to or an Unreasonable Application of Federal Law

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A state court decision is "contrary to" federal law if it "applies a rule that

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contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts

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that [are] materially indistinguishable from [a Supreme Court case] but reaches a

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different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at
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405-06). "AEDPA does not require state and federal courts to wait for some nearly

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identical factual pattern before a legal rule must be applied . . . The statute recognizes . .

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. that even a general standard may be applied in an unreasonable manner." Panetti v.

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Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The

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"clearly established Federal law" requirement "does not demand more than a ‘principle'

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or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state

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decision to be an unreasonable application of clearly established federal law under §

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2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle

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(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-

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71 (2003). A state court decision will involve an "unreasonable application of" federal

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law only if it is "objectively unreasonable." Id. at 75-76 (quoting Williams, 529 U.S. at

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409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the

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Court further stresses that "an unreasonable application of federal law is different from

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an incorrect application of federal law." 131 S. Ct. 770, 785 (2011) (citing Williams, 529

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U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks

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merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

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correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541

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U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts

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have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.

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Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established

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Federal law for a state court to decline to apply a specific legal rule that has not been

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squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419

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(2009) (quoted by Richter, 131 S. Ct. at 786).

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2.

Review of State Decisions

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"Where there has been one reasoned state judgment rejecting a federal claim,

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later unexplained orders upholding that judgment or rejecting the claim rest on the same

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grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

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"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198
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(9th Cir. 2006).

Determining whether a state court's decision resulted from an

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unreasonable legal or factual conclusion, "does not require that there be an opinion from

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the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.

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"Where a state court's decision is unaccompanied by an explanation, the habeas

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petitioner's burden still must be met by showing there was no reasonable basis for the

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state court to deny relief." Id. "This Court now holds and reconfirms that § 2254(d) does

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not require a state court to give reasons before its decision can be deemed to have been

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‘adjudicated on the merits.'" Id.

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Richter instructs that whether the state court decision is reasoned and explained,

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or merely a summary denial, the approach to evaluating unreasonableness under §

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2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments

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or theories supported or, as here, could have supported, the state court's decision; then

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it must ask whether it is possible fairminded jurists could disagree that those arguments

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or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

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Thus, "even a strong case for relief does not mean the state court's contrary conclusion

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was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves

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authority to issue the writ in cases where there is no possibility fairminded jurists could

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disagree that the state court's decision conflicts with this Court's precedents."

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(emphasis added). To put it yet another way:

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Id.

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As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.

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Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts

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are the principal forum for asserting constitutional challenges to state convictions." Id. at

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787.

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requirement and the doctrine of procedural bar to ensure that state proceedings are the

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central process, not just a preliminary step for later federal habeas proceedings." Id.

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(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).

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It follows from this consideration that § 2254(d) "complements the exhaustion

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3.

Prejudicial Impact of Constitutional Error

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The prejudicial impact of any constitutional error is assessed by asking whether

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the error had "a substantial and injurious effect or influence in determining the jury's

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verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

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U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the

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state court recognized the error and reviewed it for harmlessness). Some constitutional

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errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.

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Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659

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(1984).

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IV.

REVIEW OF PETITION

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A.

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Petitioner, in his first claim for relief, asserts that there was insufficient evidence to

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Claim One: Unlawful Coersion of the Jury

support his convictions for torture and infliction of great bodily injury.
1.

Legal Standard

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The Fourteenth Amendment's Due Process Clause guarantees that a criminal

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defendant may be convicted only by proof beyond a reasonable doubt of every fact

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necessary to constitute the charged crime. Jackson v. Virginia, 443 U.S. 307, 315-16, 99

19

S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under the Jackson standard, "the relevant

20

question is whether, after viewing the evidence in the light most favorable to the

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prosecution, any rational trier of fact could have found the essential elements of the

22

crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original).

23

In applying the Jackson standard, the federal court must refer to the substantive

24

elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.

25

A federal court sitting in habeas review is "bound to accept a state court's interpretation

26

of state law, except in the highly unusual case in which the interpretation is clearly

27

untenable and amounts to a subterfuge to avoid federal review of a constitutional

28

violation." Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008) (quotation omitted).
12

1

2.

State Court Decision

2

Petitioner presented this claim by way of direct appeal to the California Court of

3

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

4

appellate court and summarily denied in a subsequent petition for review by the

5

California Supreme Court. Applying the look through doctrine, (Ylst v. Nunnemaker, 501

6

U.S. at 804-05 & n.3), the California Court of Appeal explained:

7

I. Substantial evidence of torture and great bodily injury

8

Defendant contends there is insufficient evidence to support his
conviction in count II for torture and for the great bodily injury
enhancements for count III, assault with a deadly weapon, and count IV,
infliction of corporal injury. Defendant argues that Kimberly's burns did not
constitute the type of great bodily injuries contemplated by those statutes,
she did not need to seek medical attention for the burns, and there is no
evidence that she was physically impaired by the burns.

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"In assessing the sufficiency of the evidence, we review the entire
record in the light most favorable to the judgment to determine whether it
discloses evidence that is reasonable, credible, and of solid value such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] Reversal on this ground is unwarranted
unless it appears 'that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].' [Citation.]" (People v.
Bolin (1998) 18 Cal.4th 297, 331.)
A. Torture
We begin with defendant's conviction in count II for torture in
violation of section 206, which states:
"Every person who, with the intent to cause cruel or extreme
pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose, inflicts great bodily
injury as defined in Section 12022.7 upon the person of
another, is guilty of torture. [¶ ] The crime of torture does not
require any proof that the victim suffered pain."As we will
explain below, section 12022.7, subdivision (f) defines great
bodily injury as "a significant or substantial physical injury."
Torture, as defined in section 206, "focuses on the mental state of
the perpetrator and not the actual pain inflicted" on the victim. (People v.
Hale (1999) 75 Cal.App.4th 94, 108 (Hale).) Section 206 does not require
permanent, disabling, or disfiguring injuries, or proof that the victim
suffered pain. (People v. Pre (2004) 117 Cal.App.4th 413, 420 (Pre).)
Instead, section 206 only requires great bodily injury, as defined in section
12022.7. (Ibid.)
In addition, section 206 does not require that the defendant intend
to inflict prolonged pain. The brevity of an attack does not foreclose a
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defendant's conviction for torture. (People v. Massie (2006) 142
Cal.App.4th 365, 371; Pre, supra, 117 Cal.App.4th at p. 420; Hale, supra,
75 Cal.App.4th at pp. 107-108.) The length of time over which the offense
occurred, and the severity of the wounds inflicted, are relevant factors but
not necessarily determinative. (People v. Massie, supra, 142 Cal.App.4th
at p. 371.)
B. Great bodily injury
As to count III, assault with a deadly weapon, an electric iron, and
count IV, infliction of corporal injury resulting in a traumatic condition, the
jury found defendant inflicted great bodily injury on the victim under
circumstances involving domestic violence pursuant to section 12022.7,
subdivision (d).
Section 12022.7, subdivision (f) defines great bodily injury, for
purposes of the enhancement and section 206's definition of torture, as "a
significant or substantial physical injury." As with torture, in order to
constitute great bodily injury for the enhancement, there is no requirement
that "the victim suffer 'permanent,' 'prolonged' or 'protracted'
disfigurement, impairment, or loss of bodily function." (People v. Escobar
(1992) 3 Cal.4th 740, 750 (Escobar).) "[S]ignificant or substantial [means]
not insignificant, trivial or moderate. [Citations.]" (People v. Armstrong
(1992) 8 Cal.App.4th 1060, 1066.) "Abrasions, lacerations, and bruising
can constitute great bodily injury. [Citation.]" (People v. Jung (1999) 71
Cal.App.4th 1036, 1042 (Jung).)
The determination of whether a victim has suffered physical harm
amounting to great bodily injury is not a question of law for the court but a
factual inquiry to be resolved by the jury. (People v. Cross (2008) 45
Cal.4th 58, 64 (Cross).) "'"If there is sufficient evidence to sustain the jury's
finding of great bodily injury, we are bound to accept it, even though the
circumstances might reasonably be reconciled with a contrary finding."'
[Citation.]" (Escobar, supra, 3 Cal.4th at p. 750.) "'"A fine line can divide an
injury from being significant or substantial from an injury that does not
quite meet the description."' [Citations.] Where to draw that line is for the
jury to decide." (Cross, supra, 45 Cal.4th at p. 64.)
C. Analysis
There is overwhelming evidence to support the jury's finding that
Kimberly suffered great bodily injury and to support both count II and the
enhancements based on the burns defendant inflicted on her face and
arm. Sheila personally observed the burns the day after the assault and
described a brown mark on Kimberly's face, which was in the shape and
mark of an iron. Sheila also described burns on Kimberly's left arm from
the shoulder to the inside of her elbow in the triceps area. Sheila could
see "the prints of an iron going up her arm," that were "pressed ... like
angles." Sheila testified the burn marks were raw, red, pink, and had pus
on them. The jury also saw Officer Pence's photographs of the burns,
which were taken about a week after the assault, and Sheila's explanation
that the burns appeared "more healed" in those photographs.
Moreover, the jury heard the stark and disturbing voicemail
recording from Sheila's cell phone, which documented defendant's assault
on Kimberly with the iron. Kimberly cried, moaned, and wailed in pain as
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defendant repeatedly burned her with the iron and said he was going to kill
her. The very nature and distinctive pattern of these repetitive burns
indicates the force with which defendant pressed the iron on her body, and
refutes any inference that the injuries were from glancing or minimal
contacts. No rational jury could find that burning a person's face and arm
multiple times with a hot iron would not inflict great bodily injury.
Defendant cites several cases involving injuries more grievous and
life-threatening than the burns he inflicted on Kimberly's face and arm, and
argues that there is insufficient evidence that she suffered great bodily
injury compared to these other cases. Defendant's argument lacks merit.
First, "'[w]hen we decide issues of sufficiency of evidence [in a torture
case], comparison with other cases is of limited utility, since each case
necessarily depends on its own facts.' [Citation.]" (People v. Baker (2002)
98 Cal.App.4th 1217, 1225.) "That other victims of torture may have
suffered more than the victim in this case sheds no light on the sufficiency
of the evidence ...." (Jung, supra, 71 Cal.App.4th 1036, 1043.) There is
"little utility in looking to the facts of other torture cases when faced with
assessing the sufficiency of the evidence. [Citations.]" (Pre, supra, 117
Cal.App.4th at p. 423.) "Thus, the fact that [defendant] did not inflict more
severe or additional injuries ... does not undermine a conclusion the
evidence was sufficient in this case." (Ibid.) While Kimberly's injuries may
not have been as severe as in the cases cited by defendant, the jury could
reasonably find the series of burns to her face and arm, inflicted by a hot
iron with enough force to leave the distinctive burn patterns, constituted
great bodily injury within the meaning of section 12022.7.
Defendant asserts there is conflicting evidence as to the severity of
Kimberly's burns based on the fact that officers conducted a welfare check
on her the day after the assault and the officers reported that she was
okay. Defendant argues that these officers would not have discontinued
the welfare check if they had observed severe burns on her face and arm.
Defendant is correct that there was conflicting evidence regarding the
welfare check, which was triggered by Sheila's concern that Kimberly was
not answering her cell phone on the day after the assault. Sheila testified
that the dispatch operator advised her that officers went to Kimberly's
residence and she had refused service. At trial, Officer Pence testified the
dispatch logs reflected that the officers believed she was okay. Also at
trial, Kimberly testified that she told the police that she was okay.

27

The entirety of the record strongly suggests that Kimberly may have
successfully downplayed the serious nature of the iron burns when the
officers conducted the welfare check. On the night of the assault, Kimberly
repeatedly told Sheila not to call the police. Several hours after the welfare
check, Kimberly arrived at Sheila's house and a sweater covered the
burns on her arm. Kimberly again told Sheila not to call the police, and
said she was not ready to report the incident. The officers who actually
conducted the welfare check did not appear at trial, and there is no
evidence if they made face-to-face contact with Kimberly, or whether they
were able to clearly observe her face and arm without any obstructions.
The fact that the officers discontinued the welfare check does not
undermine Sheila's observations of the burns the day after the assault, or
the nature of the injuries depicted in Officer Pence's photographs taken a
week after the assault.

28

Defendant further argues that in contrast to other published torture

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cases, there is insufficient evidence of great bodily injury because
Kimberly did not seek medical treatment for her burns and there is no
evidence that she suffered any physical impairment. Defendant correctly
notes that proof that a victim suffered great bodily injury "is commonly
established by evidence of the severity of the victim's physical injury, the
resulting pain, or the medical care required to treat or repair the injury.
[Citations.]" (Cross, supra, 45 Cal.4th at p. 66.) However, in People v.
Lopez (1986) 176 Cal.App.3d 460, there was substantial evidence of great
bodily injury where one victim was shot in the buttocks and the other
victim was shot in the thigh, and neither victim sought or received medical
attention. (Id. at pp. 464-465.) Thus, the victim's failure to seek medical
assistance does not foreclose a jury's finding of great bodily injury.
As explained ante, the jury is charged with drawing the line
between mere injury and great bodily injury. (Escobar, supra, 3 Cal.4th at
p. 752.) The jury in this case was presented with sufficient evidence that
defendant inflicted great bodily injury on Kimberly when he repeatedly
burned her face and arm with a hot iron, and his conviction in count II for
torture, and the jury's findings on the great bodily injury enhancements for
counts III and IV, are supported by substantial evidence.
People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229 at 14-23.
b.

Analysis

13

Petitioner asserts that there was insufficient evidence to support a finding of 'great

14

bodily injury,' a required element to support the conviction for torture and the great bodily

15

injury enhancement. Petitioner acknowledges that the victim suffered injuries from the

16

hot iron that were observed by Sheila the day after the incident, and photographed by

17

the police roughly a week later. Petitioner contends that the fact that the victim did not

18

seek professional medical treatment, and treated the wounds herself with some ointment

19

shows that the wounds were not significant or substantial. Petitioner contends that there

20

was little evidence of the victim complaining of pain from the injuries, and argues that

21

while the victim was not allowed to work as an exotic dancer due to the injuries, it was

22

likely based on her appearance rather than any physical impairment from the injuries.

23

At the time of Petitioner's conviction, California defined great bodily injury as "a

24

significant or substantial physical injury." Cal. Penal Code § 12022.7. Great bodily injury

25

is commonly established by evidence of the severity of the victim's physical injury, the

26

resulting pain, or the medical care required to treat or repair the injury. Id.; People v.

27

Cross, 45 Cal.4th 58, 63, 66, 82 Cal. Rptr. 3d 373, 190 P.3d 706 (2008). For there to be

28

a significant or substantial physical injury, it is not necessary for "the victim to suffer
16

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'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily

2

function." People v. Escobar, 3 Cal.4th 740, 750, 12 Cal. Rptr. 2d 586, 837 P.2d 1100

3

(1992).

4

Petitioner's arguments are unpersuasive. While medical treatment can be one

5

factor that is used to determine the severity of the injury, the fact that a victim did not

6

seek treatment is not determinative of whether great bodily injury occurred. Petitioner

7

also contends that the victim did not complain about the injuries. However, during the

8

voicemail recording the victim was heard "wail[ing] and moan[ing]" and otherwise crying

9

out in pain when she was being burned. The day after the incident, the victim

10

complained of pain, and removed a sweater she was wearing because of the burn

11

wounds on her arm.

12

Further, there was ample evidence upon which the jury could have relied to prove

13

that the victim suffered significant or substantial physical injuries. The phone recording

14

depicted the cries of pain of the victim when she was being burned by Petitioner.

15

Evidence from Shelia regarding the state of the burn wounds the day after the injury

16

indicated that Petitioner suffered burns on significant portions of her body and that the

17

burns were raw, red and pink and actively discharging. Finally, there were photographs

18

of the burns to the victim's face and arm taken by the police roughly a week after the

19

incident. Based on the extent and severity of the burns inflicted upon the victim, it is

20

without question that there was ample evidence to support the jury's finding that burns

21

constituted great bodily injury as defined by California law.

22

The evidence viewed in the light most favorable to the prosecution and with

23

appropriate deference provided by federal habeas review supports the jury's finding of

24

the conviction for torture and the enhancement based on great bodily injury. Under

25

Jackson and AEDPA, the state decision is entitled to double deference on habeas

26

review. Based on the Court's independent review of the trial record, it is apparent that

27

Petitioner's challenge to the jury finding that the victim suffered great bodily injury is

28

without merit. There was no constitutional error, and Petitioner is not entitled to relief with
17

1

regard to this claim.

2

B.

3

Petitioner, in his second claim, contends that the definition of great bodily injury

4

under California State law is unconstitutionally vague because it fails to provide sufficient

5

certainty for the jury to decide whether a victim's injuries are significant.

6

Claim Two: Great Bodily Injury Statute is Unconstitutionally Vague

1.

State Court Decision

7

Petitioner presented his claim by way of direct appeal to the California Court of

8

Appeal, Fifth Appellate District. The claims were denied in a reasoned decision by the

9

Court of Appeal (People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229) and in a

10

subsequent petition for review filed with California Supreme Court. As stated earlier,

11

"where there has been one reasoned state judgment rejecting a federal claim, later

12

unexplained orders upholding that judgment or rejecting the claim rest on the same

13

grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

14

"look through" presumption. Id. at 804. Since the Court of Appeal was the last court to

15

issue a reasoned opinion on these issues, this Court “looks through” the California

16

Supreme Court decision to the reasoned analysis of the Court of Appeal.

17
18

With regard to the unconstitutionally vague claim, the Court of Appeal said in its
opinion:

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II. The definition of great bodily injury is not unconstitutionally
vague
Defendant next contends the definition of great bodily injury
contained within section 12022.7, subdivision (f) is unconstitutionally
vague because it fails to provide sufficient certainty for the jury to decide
whether any victim's injuries, and particularly Kimberly's injuries in this
case, are significant or substantial.
As defendant concedes, similar constitutional challenges to section
12022.7's definition of great bodily injury, as applied to both the
enhancement and section 206's definition of torture, have been repeatedly
rejected. (People v. Guest (1986) 181 Cal.App.3d 809, 811-812; In re
Mariah T. (2008) 159 Cal.App.4th 428, 436-437; People v. Lewis (2004)
120 Cal.App.4th 882, 888-889; People v. Misa (2006) 140 Cal.App.4th
837, 844; People v. Albritton (1998) 67 Cal.App.4th 647, 656-657; People
v. Aguilar (1997) 58 Cal.App.4th 1196, 1200, 1204-1205; see also James
v. United States (2007) 550 U.S. 192, 210-211, fn. 6 [relying in part on
California law to reject argument that the phrase "serious potential risk of
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physical injury" is unconstitutionally vague].)
Defendant argues the statutory definition is unconstitutionally vague
as applied to this particular case given the nature of Kimberly's burns,
particularly since she did not seek medical treatment. As we have
explained, however, whether a victim has suffered physical harm
amounting to great bodily injury is a factual question to be resolved by the
jury. (Cross, supra, 45 Cal.4th 58, 64.) In this case, the jury heard Sheila's
extensive description of the nature of Kimberly's facial and arm burns
based on Sheila's observations the day after the attack, listened to the
voicemail recording of Kimberly's cries and moans during the actual
assault, and reviewed Officer Pence's photographs of the burns, which
were taken one week after the attack. We reject defendant's contention
that the jury could not understand what conduct is prohibited by section
206 and section 12022.7, subdivision (f). We decline to find the definition
of great bodily injury is unconstitutionally vague in the abstract or as
applied to the instant case. (People v. Misa, supra, 140 Cal.App.4th at p.
844.)
People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229, at 23-25.
2.

Legal Standards

12

A state criminal statute may be challenged as unconstitutionally vague by way of

13

a petition for a writ of habeas corpus by a prisoner convicted under the statute. See

14

Vlasak v. Superior Court of California, 329 F.3d 683, 688-90 (9th Cir. 2003). Outside the

15

First Amendment context, a petitioner alleging facial vagueness must show that "the

16

enactment is impermissibly vague in all its applications." Hotel & Motel Ass'n of Oakland

17

v. City of Oakland, 344 F.3d 959, 972 (9th Cir. 2003) (quoting Village of Hoffman

18

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct. 1186, 71 L. Ed.

19

2d 362 (1982)); Humanitarian Law Project v. United States Treasury Dept., 578 F.3d

20

1133 (9th Cir. 2009). Additionally, "[u]nless First Amendment freedoms are implicated, a

21

vagueness challenge may not rest on arguments that the law is vague in its hypothetical

22

applications, but must show that the law is vague as applied to the facts of the case at

23

hand." United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997) (citing Chapman

24

v. United States, 500 U.S. 453, 467, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991)).

25

"To satisfy due process, 'a penal statute [must] define the criminal offense (1)

26

with sufficient definiteness that ordinary people can understand what conduct is

27

prohibited; and (2) in a manner that does not encourage arbitrary and discriminatory

28

enforcement.'" Skilling v. United States, 130 S.Ct. 2896, 2927-28, 177 L. Ed. 2d 619
19

1

(2010) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d

2

903 (1983)); United States v. Kilbride, 584 F.3d 1240, 1256-57 (9th Cir. 2009) (even

3

under heightened standards of clarity for statutes involving criminal sanctions, "due

4

process does not require impossible standards of clarity"); see also Maynard v.

5

Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988) ("[o]bjections

6

to vagueness under the Due Process Clause rest on lack of notice, and hence may be

7

overcome in any specific case where reasonable persons would know that their conduct

8

is at risk").

9

A criminal statute is unconstitutionally vague when it "fails to give a person of

10

ordinary intelligence fair notice that his contemplated conduct is forbidden by the

11

statute." United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989

12

(1954); see also United States v. Batchelder, 442 U.S. 114, 123, 99 S. Ct. 2198, 60 L.

13

Ed. 2d 755 (1979). A statute will meet the certainty required by the Constitution if its

14

language conveys sufficiently definite warning as to the proscribed conduct when

15

measured by common understanding and practices. See Panther v. Hames, 991 F.2d

16

576, 578 (9th Cir. 1993); see also, e.g., Holder v. Humanitarian Law Project, 130 S.Ct.

17

2705, 2719-21, 177 L. Ed. 2d 355 (2010) (finding statutory terms "training," "expert

18

advice or assistance," "service," and "personnel" in federal statute prohibiting knowingly

19

providing material support to a foreign terrorist organization provide fair notice because

20

they do not require "untethered, subjective judgments"); United States v. Rodriguez,

21

360 F.3d 949, 954 (9th Cir. 2004) (Hobbs Act's definition of commerce is well-

22

established and therefore not unconstitutionally vague); Houston v. Roe, 177 F.3d 901,

23

907-08 (9th Cir. 1999) (California's non-capital first degree murder by lying in wait

24

statute is not vague because it applies to slightly different conduct than capital murder

25

with the special circumstance of lying in wait and therefore the two statutes do not

26

encourage discriminatory or arbitrary enforcement).

27

In assessing whether a state statute is unconstitutionally vague, federal courts

28

must look to the plain language of the statute, as well as consider state courts'
20

1

constructions of the challenged statute. See Kolender, 461 U.S. at 355; see also United

2

States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (noting

3

that judicial opinions may clarify "an otherwise uncertain statute"); Nunez by Nunez v.

4

City of San Diego, 114 F.3d 935, 941-42 (9th Cir. 1997). The federal court is not bound

5

by the state court's analysis of the constitutional effect of that construction, however.

6

See Nunez, 114 F.3d at 942. Nevertheless, it must accept a narrow construction to

7

uphold the constitutionality of a state statute if its language is readily susceptible to it.

8

See id.

9

When a term has a well-settled common law meaning, it will not violate due

10

process "'notwithstanding an element of degree in the definition as to which estimates

11

might differ.'" Panther, 991 F.2d at 578 (quoting Connally v. General Constr. Co., 269

12

U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). For example, the fact that a penal

13

statute requires a jury upon occasion to determine a question of reasonableness is not

14

sufficient to make it too vague to afford a practical guide to permissible conduct. See id.

15

at 578-80 (use of "substantial risk" and "gross deviation" to define prohibited conduct did

16

not make Alaska criminal negligence statute unconstitutionally vague) (quoting United

17

States v. Ragen, 314 U.S. 513, 523, 62 S. Ct. 374, 86 L. Ed. 383 (1942)).

18

To avoid a vagueness challenge based on the potential for arbitrary enforcement,

19

statutes must include "minimal guidelines to govern law enforcement." Kolender, 461

20

U.S. at 358; see also City of Chicago v. Morales, 527 U.S. 41, 60, 119 S. Ct. 1849, 144

21

L. Ed. 2d 67 (1999). "Where the legislature fails to provide such minimal guidelines, a

22

criminal statute may permit a standardless sweep that allows policemen, prosecutors,

23

and juries to pursue their personal predilections." Kolender, 461 U.S. at 358.

24

In Kolender, the Supreme Court declared unconstitutionally vague a California

25

anti-loitering statute requiring persons loitering or wandering the streets to provide a

26

"credible and reliable" identification and to account for their presence upon police

27

request. 461 U.S. at 358-59. Although the law was deemed to violate the Due Process

28

Clause of the Fourteenth Amendment because it failed to define what was meant by
21

1

"credible and reliable," the Kolender Court also noted its concern that the challenged

2

statute had the potential to suppress First Amendment rights. See id. at 357-63.

3

The petitioner in Kolender had been arrested fifteen times for disorderly conduct,

4

prosecuted twice, and convicted once, under a California statute which provided that an

5

individual had committed the offense if, he "loiters or wanders upon the streets or from

6

place to place without apparent reason or business and who refuses to identify himself

7

and to account for his presence when requested by any peace officer to do so, if the

8

surrounding circumstances are such as to indicate to a reasonable man that the public

9

safety demands such identification." Id. (citing Cal. Penal Code § 647(e)). The Supreme

10

Court was concerned that by affording so much discretion to police in determining

11

whether a suspect violated the anti-loitering law, the statute "furnishe[d] a convenient

12

tool for harsh and discriminatory enforcement by local prosecuting officials, against

13

particular groups deemed to merit their displeasure." Id. at 359. The Court noted that

14

the void-for-vagueness doctrine focuses not only on notice, but on whether the

15

"legislature establish[ed] minimal guidelines to govern law enforcement." Id. at 358.

16

Ultimately, the Kolender Court held that the state statute was unconstitutionally vague

17

on its face because it "encourage[d] arbitrary enforcement by failing to describe with

18

sufficient particularity what a suspect must do in order to satisfy the statute." Id. at 361.

19

3.

Analysis

20

The state appellate court's decision that the statute was not unconstitutionally

21

vague was neither contrary to, nor an unreasonable application of, clearly established

22

federal law, because California Penal Code § 12022.7 includes "minimal guidelines" to

23

govern those who apply the law. See Kolender, 461 U.S. at 358. As described above,

24

the statute defines "great bodily injury" to include only "significant or substantial physical

25

injury." Additionally, California's "great bodily injury" standard jury instructions, as

26

substantially given in this case, explain that insignificant, minor, or even moderate

27

injuries do not constitute great bodily injury. (See Rep. Tr. at 1435; see also CALCRIM

28

3160.) It was reasonable for the state court to conclude that these definitions provide
22

1

sufficient guidelines for juries to follow. See Kolender, 461 U.S. at 358.

2

It was not unreasonable for the California Court of Appeal to consider its own

3

case law in assessing whether the statute was unconstitutionally vague, or the common

4

usage and acceptance of the phrase "great bodily injury." See Panther, 991 F.2d at 578;

5

see also, e.g., Humanitarian Law Project, 130 S.Ct. at 2719-21. In fact, in assessing

6

whether a state statute is unconstitutionally vague, federal courts must consider state

7

courts' constructions of the challenged statute. See Kolender, 461 U.S. at 355; see also

8

Lanier, 520 U.S. at 266. The Court notes that numerous California appellate courts have

9

repeatedly rejected the very challenge Petitioner raises here, and the state court

10

decisions cited by the appellate court in this case are not contrary to the United

11

Supreme Court's decision in Kolender.

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Additionally, the California Court of Appeal's decision that the definition of great

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bodily injury under § 12022.7 as applied in this case was not unconstitutionally vague,

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was not contrary to or an unreasonable application of clearly established federal law.

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Under California Penal Code section 12022.7(f), Petitioner was on notice that causing

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any "significant or substantial physical injury" would subject him to criminal liability.

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Based on that definition, an ordinary person plainly could understand that assaulting

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someone with a hot iron causing major burns to the victim would constitute prohibited

19

conduct. Moreover, given the victim's injuries in this case, the jury's finding of "great

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bodily injury" cannot be deemed the result of its arbitrary exercise of personal

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predilections. There was no constitutional error, and Petitioner is not entitled to relief

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with regard to claim two.

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C.

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Petitioner, in his third claim, contends that the trial court erred in denying his

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motion for mistrial based on the prosecutor’s alleged misconduct in asking a question

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that revealed Petitioner's criminal history.

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Claim Three: Denial of Motion for Mistrial

1.

State Court Decision

Petitioner presented his claim by way of direct appeal to the California Court of
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Appeal, Fifth Appellate District. The claims were denied in a reasoned decision by the

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Court of Appeal (People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229) and in a

3

subsequent petition for review filed with California Supreme Court. As stated earlier,

4

"where there has been one reasoned state judgment rejecting a federal claim, later

5

unexplained orders upholding that judgment or rejecting the claim rest on the same

6

grounds." See Ylst v. Nunnemaker, 501 U.S. at 803-04. Since the Court of Appeal was

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the last court to issue a reasoned opinion on these issues, this Court “looks through” the

8

California Supreme Court decision to the reasoned analysis of the Court of Appeal.

9
10

With regard to the prosecutorial misconduct claim, the Court of Appeal said in its
opinion:

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III. Motion for mistrial/prosecutorial misconduct

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Defendant next contends the court should have granted a motion
for mistrial, which he made during Kimberly's defense testimony, when the
prosecutor attempted to ask whether she knew defendant had been
convicted of drug sales. Defendant asserts the prosecutor's question
constituted misconduct, the court should have granted his motion for
mistrial, and the question was prejudicial since it led the jury to believe he
was a drug dealer. As we will explain, the entirety of the record indicates
that defendant did not suffer any prejudice from the brief exchange
between Kimberly and the prosecutor.

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A. Background
At trial, there were several instances where evidence was properly
admitted regarding Kimberly's drug use. Sheila testified that Kimberly's
children were removed from Kimberly's custody because she went into a
drug treatment program.
Kimberly's drug use was again mentioned when she testified as an
uncooperative prosecution witness. On cross-examination, Kimberly
acknowledged that Sheila had custody of her children, and claimed Sheila
was upset because defendant and Kimberly did not pay her enough
money to take care of the children.
"[Defense counsel]: And [Sheila] is getting money because
of your children; is that right? She gets it from the State and
she gets it from you?
"[Kimberly]. Yeah. But the people don't know that.
"Q. I'm sorry?
"A. But the people don't know that. They just know I'm a
druggie, so they say. But, yeah, she gets money from ...
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them and me." (Italics added.)
When Kimberly testified for the defense, she explained that she
could not accurately remember anything that happened in January 2009
because she was "high" on drugs and that time was "very foggy." On
cross-examination, the prosecutor asked Kimberly about her drug use
during that time compared to her condition during the trial. Kimberly
testified she still used drugs, but "at that time .... I did more than now.
""[The prosecutor]: Do you get those drugs from
[defendant]?

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"A. No, I do not. He don't [sic] condone[] it.

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"Q. You're aware he's been convicted of drug sales— - - - -"
(Italics added.)

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Defense counsel immediately objected. The court sustained the
objection and the prosecutor moved on to a different topic.
Thereafter, outside the jury's presence, defense counsel moved for
a mistrial and argued the prosecutor's question about defendant's alleged
conviction for drug sales constituted improper impeachment and character
evidence in violation of Evidence Code section 1101. Defense counsel
argued the question was prejudicial and it would be impossible for the jury
to acquit defendant because "they now think that what they have in front
[of them] is a drug dealer ...."
The prosecutor argued that the question was appropriate. The court
replied that the question was not appropriate "until you had leave of the
Court to ask it, if you had requested it, which you did not." The prosecutor
apologized, but argued that Kimberly opened the door to character
evidence about defendant because she said that defendant did not
condone drug use.
The court denied defendant's motion for mistrial:
"[T]he improper question was whether [Kimberly] was aware
of the fact that [defendant had] been convicted of selling
drugs. And that question was not answered by her. An
objection was interposed. The objection was sustained. And
we went on without further comment.
"I've instructed the jury already that questions are not
evidence. That's all we have before the Court. We don't have
an answer one way or the other. And the objection was
sustained.
"And I don't think it rises to the level of a situation that would
require this Court to mistry this case at this particular point in
time or at any time, for that matter."
The court offered to further admonish the jury that the prosecutor's
question was not evidence, but acknowledged such an instruction was "a
two-edged sword" because it would call further attention to "something
that we can't be too sure that the jury paid a whole lot of attention to ...."
Defense counsel agreed that he did not want to call further attention to the
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matter and declined an instruction.
B. Analysis
"The applicable federal and state standards regarding prosecutorial
misconduct are well established. '"A prosecutor's ... intemperate behavior
violates the federal Constitution when it comprises a pattern of conduct 'so
egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves '"'the use of deceptive or
reprehensible methods to attempt to persuade either the court or the
jury.'"' [Citation.] As a general rule a defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion — and on
the same ground — the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the impropriety.
[Citation.] Additionally, when the claim focuses upon comments made by
the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion. [Citation.]" (People v.
Samayoa (1997) 15 Cal.4th 795, 841.)
Defendant contends that the prosecutor's question about his
conviction for selling drugs had no relationship to the domestic violence
charges in this case. The record suggests otherwise. While Kimberly
initially cooperated with the investigation, she had become an unwilling
prosecution witness by the time of trial and insisted defendant never
assaulted her. Kimberly readily admitted that she used drugs at the time of
the assault, and that she continued to use drugs. The prosecutor may
have sought to show a possible reason for Kimberly's dependence on
defendant – that she relied on defendant to get her drugs – to explain why
she had changed her story about the assault.
Defendant also contends that the prosecutor's question violated an
existing court order, which purportedly excluded any evidence about
defendant's prior drug activities. Defendant acknowledges that such an
order is not contained in the record, but argues that this court can infer its
existence based on the court's pretrial order which bifurcated the matter of
defendant's prior convictions, and the court's chastisement of the
prosecutor when she asked Kimberly about defendant's drug activities.
While the court issued a standard bifurcation order prior to trial, there is no
indication in the instant record that the court issued a specific pretrial order
to exclude evidence of defendant's drug activities.
Nevertheless, the prosecutor's question was inappropriate because
of the potentially prejudicial nature of the subject matter. The court
properly admonished the prosecutor that she should have requested a
ruling from the court before she asked the question. While the question
may have been inappropriate under these circumstances, the court
immediately sustained defense counsel's objection, and Kimberly never
answered it. Contrary to the People's appellate arguments, defense
counsel preserved the issue by objecting and moving for a mistrial.
Counsel's decision not to accept the court's offer for a limiting instruction
was an understandable tactical choice, and he did not waive appellate
review of the matter.

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Defendant argues the prosecutor's question was prejudicial, and he
was convicted of the charged offenses because the jury was led to believe
that he was a convicted drug dealer. However, the prosecutor's question
was not prejudicial given the jury's verdicts in this case. The jury found
defendant not guilty of the most serious charge in this case, attempted
murder, and not guilty of the lesser included offense of attempted
voluntary manslaughter. We are not persuaded that the jury was
prejudicially influenced by the prosecution's question given the nature of
the jury's verdicts in this case.
A motion for mistrial "should be granted only when a party's
chances of receiving a fair trial have been irreparably damaged." (People
v. Ayala (2000) 23 Cal.4th 225, 283.) We defer to the trial court's factual
findings if they are supported by substantial evidence, and we review the
court's denial of the mistrial motion for an abuse of discretion. (Id. at pp.
283, 299; People v. Batts (2003) 30 Cal.4th 660, 684-686.) We find the
trial court did not abuse its discretion when it denied defendant's motion
for mistrial since it promptly sustained defense counsel's objection and
Kimberly never answered the question. We also find that any prosecutorial
misconduct was not prejudicial given the entirety of the jury's verdicts in
this case.
People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229 at 25-32.

12
2.

Applicable Legal Principles

13
A criminal defendant's due process rights are violated when a prosecutor's
14
misconduct renders a trial fundamentally unfair. Parker v. Matthews, ___U.S. ___, 132
15
S.Ct. 2148, 2153, 183 L. Ed. 2d 32 (2012) (per curiam); Darden v. Wainwright, 477 U.S.
16
168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). Claims of prosecutorial misconduct
17
are reviewed "'on the merits, examining the entire proceedings to determine whether the
18
prosecutor's [actions] so infected the trial with unfairness as to make the resulting
19
conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995)
20
(citation omitted); see also Greer v. Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 97 L. Ed.
21
2d 618 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed.
22
2d 431 (1974); Towery v. Schriro, 641 F.3d 300, 306 (9th Cir. 2010). Relief on such
23
claims is limited to cases in which the petitioner can establish that prosecutorial
24
misconduct resulted in actual prejudice. Darden, 477 U.S. at 181-83. See also Towery,
25
641 F.3d at 307 ("When a state court has found a constitutional error to be harmless
26
beyond a reasonable doubt, a federal court may not grant habeas relief unless the state
27
court's determination is objectively unreasonable"). Prosecutorial misconduct violates
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due process when it has a substantial and injurious effect or influence in determining the

2

jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).

3

3.

Analysis

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Here, Petitioner objected to the prosecutor asking the victim whether she knew

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that Petitioner had been previously convicted for drug sales. Specifically, Petitioner

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asserts that the question was improper and prejudicial in light of an in limine ruling of the

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trial court to prohibit such questioning without prior consent. As described, the conduct of

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the prosecutor involved one inappropriate question. Further, the trial court noted that the

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question was inappropriate based on the failure to ask the court's permission.

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The California Court of Appeal examined Petitioner's prosecutorial misconduct

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claims and determined that there was no prejudicial misconduct. The state court's

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determination was not objectively unreasonable. See 28 U.S.C. § 2254(d). While the

13

prosecutor asked a question without authorization, defense counsel objected to the

14

question, and the witness never answered the question. Accordingly, no prejudicial

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evidence was presented to the jury in relation to the question. Upon objection, the

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prosecution apologized for the conduct and the trial court offered to provide a curative

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instruction be provided to the jury. Defense counsel declined as to not draw further

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attention to the issue. This does not suggest misconduct. In general, questioning does

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not amount to a due process violation if the court instructs the jury not to consider the

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prosecutor's questions. See Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S. Ct. 3102, 97

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L. Ed. 2d 618 (1987) (if curative instruction is given, reviewing court presumes that jury

22

disregarded inadmissible evidence and that no due process violation occurred); Trillo v.

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Biter, 754 F.3d 1085, 1089 (9th Cir. 2014) ("We presume that juries listen to and follow

24

curative instructions from judges."). Further, the instance of misconduct about which

25

Petitioner complains was not so unfair as to constitute a due process violation. Towery v.

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Schriro, 641 F.3d 300, 306 (9th Cir. 2010). The decision of the state appellate court

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rejecting the claim of prosecutorial misconduct is not "so lacking in justification that there

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was an error well understood and comprehended in existing law beyond any possibility
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for fairminded disagreement." Richter, 131 S. Ct. at 786-87. Accordingly, Petitioner is not

2

entitled to federal habeas relief on this claim.

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D.

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Petitioner, in his fourth claim, contends that the trial court erred in denying his

5

Claim Four: Ineffective Assistance of Counsel

motions to remove defense counsel during trial due to his ineffective representation.

6

1.

State Court Decision

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Petitioner presented his claim by way of direct appeal to the California Court of

8

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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Court of Appeal (People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229) and in a

10

subsequent petition for review filed with California Supreme Court. As stated earlier,

11

"where there has been one reasoned state judgment rejecting a federal claim, later

12

unexplained orders upholding that judgment or rejecting the claim rest on the same

13

grounds." See Ylst v. Nunnemaker, 501 U.S. at 803-04. Accordingly, this Court “looks

14

through” the California Supreme Court decision to the reasoned analysis of the Court of

15

Appeal.

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With regard to the ineffective assistance of counsel claim, the Court of Appeal
said in its opinion:

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IV. Denial of defendant's midtrial Marsden motion

19

Defendant next contends the court should have granted the
Marsden motion he made in the midst of trial to remove his defense
counsel, Arthur Revolo, and appoint another attorney. Defendant contends
Revolo was incompetent because he failed to investigate and adequately
prepare the case and failed to locate certain out-of-state witnesses who
were pertinent to his alibi defense.

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A. Marsden motions
We begin with the well-settled rules for a Marsden motion. "In
[Marsden], we held that a defendant is deprived of his constitutional right
to the effective assistance of counsel when a trial court denies his motion
to substitute one appointed counsel for another without giving him an
opportunity to state the reasons for his request. A defendant must make a
sufficient showing that denial of substitution would substantially impair his
constitutional right to the assistance of counsel [citation], whether because
of his attorney's incompetence or lack of diligence [citations], or because
of an irreconcilable conflict [citations]. We require such proof because a
defendant's right to appointed counsel does not include the right to
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demand appointment of more than one counsel, and because the matter
is generally within the discretion of the trial court. [Citation.]" (People v.
Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.)
On appeal, we review a trial court's decision denying a Marsden
motion to relieve appointed counsel under the deferential abuse of
discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) "To the
extent there was a credibility question between defendant and counsel at
the [Marsden] hearing, the court was 'entitled to accept counsel's
explanation.' [Citation.]" (People v. Smith (1993) 6 Cal.4th 684, 696.)
Defendant's appellate arguments are based on the trial court's
denial of a Marsden motion made during the evidentiary portion of his jury
trial. In order to evaluate his contentions, however, defendant's midtrial
motion must be considered in context of the numerous Marsden motions
he filed prior to, during, and after trial, to explain why his appellate
contentions are meritless.
B. Defendant's pretrial motions
In February 2009, the complaint was filed against defendant and
the court appointed Alvin Kathka to represent him. Thereafter, in February
and March 2009, defendant filed Marsden motions and claimed Kathka
failed to meet with him at the jail, that he represented someone who was
going to be a witness in another case involving Kimberly, and that he was
going to be "railroaded." At the Marsden hearings, Kathka explained his
other client had no connection to defendant, Kimberly, or this case. The
court found no conflict and denied the motions.
On March 6, 2009, the court granted defendant's motion to
represent himself pursuant to Faretta v. California (1975) 422 U.S. 806
(Faretta). The trial was continued because defendant filed numerous
pretrial discovery and evidentiary motions. In one motion, defendant
declared that Kimberly would not be available to appear or testify at trial,
and the voicemail recording was inadmissible hearsay in the absence of
her trial testimony.
On May 5, 2009, defendant's trial was scheduled to begin, but he
requested assistance from advisory counsel. On May 6, 2009, defendant
told the court he was ill and unable to represent himself. The court
continued the matter for a few days. On May 18, 2009, the court granted
defendant's motion to withdraw his Faretta status. On May 20, 2009, the
court appointed Michael Lukehart to represent defendant and continued
the trial to July 2009.
On July 29, 2009, defendant filed a Marsden motion to relieve
Lukehart because of an alleged conflict based on Lukehart's prior
representation of Richard Arvizu in a capital case. Defendant insisted that
Arvizu was the person who burned Kimberly, and Lukehart was going to
"railroad" him because he used to represent Arvizu.
The court asked Lukehart about the potential conflict. Lukehart
confirmed that he represented Arvizu in his dismissed capital case.
Lukehart had just learned that defendant was going to claim that Arvizu
was the person who burned Kimberly, and Lukehart was concerned there
might be a conflict with defendant's case.
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The court reviewed defendant's prior motions and said it was
"clear" that defendant would "do or say anything you can to keep from
going to trial." "You are going through attorneys. Every time it comes up to
trial, for some reason, you get rid of an attorney. You seem to have an
opportunity to put this over in hopes that the victim won't show up to
testify." However, the court granted defendant's Marsden motion because
it respected Lukehart's concern about a possible conflict.
The court appointed Arthur Revolo to represent defendant and
granted his motion to continue the trial to August 31, 2009.

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C. Further pretrial motions
On August 21, 2009, Revelo filed a motion for continuance and
declared that he needed more time to find "critical" out-of-state witnesses.
The motion did not clarify the identity of these witnesses or why their
testimony would be critical.
On August 26 and 31, 2009, the court found good cause and trailed
the matter to September 14, 2009, to give defense counsel more time.
On September 14, 2009, the court called the matter for trial. Revolo
stated the defense was not ready, the defense investigator was still
looking for certain out-of-state witnesses, and there was not enough time
to bring in those witnesses. Revolo requested another continuance and
stated that defendant would waive time. The prosecutor opposed any
further continuances because the defense had failed to explain why these
witnesses were critical.
The court denied the continuance motion "without further indication
as to the progress or the likelihood of reasonable progress within a
definitive period of time ...." Revolo replied that they had located a few
witnesses, but they were in California state prisons and there wasn't
enough time to procure their appearance in court. The court denied the
continuance motion based on the state of the record.

20

On September 17, 2009, the jury was sworn for defendant's trial.

21

D. Trial motions

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Defendant's appellate contentions are based on the Marsden
motion he filed on September 21, 2009, in the midst of the evidentiary
portion of his trial, to remove Revolo and appoint another attorney. The
court conducted a hearing and defendant gave a history of his prior
Marsden motions. Defendant claimed that Lukehart was removed because
he failed to investigate the case, he was busy with other murder trials, and
he failed to track down defendant's alibi witnesses, Rashawna Jones in
Texas and Mimi Moten in Oklahoma.[fn4]
FN4: Defendant's account of his Marsden motion against Lukehart is
refuted by the record, since his complaints were exclusively based on the
claim that Lukehart's prior representation of Richard Arvizu created a
conflict with representing defendant.
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As for Revolo, defendant complained he failed to meet with him in
jail, failed to investigate, was not prepared for the trial, and failed to find
the out-of-state alibi witnesses. Defendant conceded that Revolo had
done a "pretty good" job during the trial but claimed Revolo wasn't
prepared to introduce evidence about Richard Arvizu's capital murder
case – in which he burned other "adult entertainment" workers – to show
that Arvizu was responsible for Kimberly's burns.
Revolo advised the court that he filed the pretrial continuance
motion because he did not have enough time to prepare after he was
appointed to represent defendant. Revolo confirmed he had a hard time
finding witnesses, and argued defendant's due process rights were
violated by being forced to proceed with the trial when defense counsel
was not ready.
The court asked Revolo about the witnesses in Texas and
Oklahoma. Revolo said the defense investigator could not contact the outof-state witnesses and there was not enough time to subpoena them.
Defendant said his family had provided telephone numbers for the two
out-of-state witnesses, but both women had child-care issues, it was "hard
on them because like they changing their numbers," and one witness
"never sit[s] still long enough" and "if you can't catch her right from the
moment, then, you got to start all over again."[fn5]
FN5: Defendant also complained that it was unfair for the prosecutor to
hold "my girl Kim" in custody prior to trial, and he was sure that she was
not going to run away. Defendant quizzically added that "[i]f that is me on
the tape ... I'm going to need my defense so they can fully understand this
situation ...." (Italics added.)
The court denied the Marsden motion and found Revolo was
representing defendant in a competent manner and there was no
breakdown in the attorney/client relationship. The court found defendant's
dissatisfaction was based on circumstances beyond his control, and it had
nothing to do with Revolo's representation.
"Specifically, as it relates to the location of these two
witnesses that [defendant] is aware of, they — according to
[defendant] would be in a position to be favorable to him and
they are either avoiding [defendant], the process of service,
or the contact in this particular matter based on his own
description."
Thereafter, the trial resumed. On September 24, 2009, the jury
found defendant not guilty of attempted murder and guilty of the other
charged offenses.
E. Posttrial motions

27

While defendant's appellate contentions are based on the court's
denial of his midtrial Marsden motion, we must also examine defendant's
posttrial Marsden motion and the subsequent proceedings, which, as we
will explain post, refute defendant's claims of prejudicial error.

28

On October 5, 2009, Revolo filed a defense motion for new trial and

26

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argued the court should have granted his motion for a continuance to find
various out-of-state witnesses to support defendant's alibi.[fn6]
FN6: In support of the new trial motion, defendant filed a declaration from
Mercedes Clark of Bakersfield, who declared that she was unable to
testify at defendant's trial because she was never served "with a proper
subpoena," she played "phone tag" with the defense investigator, and she
had child care problems. Clark declared that she would have testified that
Kimberly and defendant were out of town on January 22, 2009 (the day
that Sheila received the voicemail recording), Clark stayed at their
Bakersfield apartment, and Sheila showed up and walked out with
something in a paper bag. Defendant did not file any declarations from the
other purported alibi witnesses.
On October 23, 2009, defendant filed another Marsden motion for
removal of Revelo. Defendant recited a long list of issues that Revolo
failed to investigate, witnesses he failed to call, and defense arguments he
failed to make. Defendant again complained that Revolo failed to produce
the two out-of-state witnesses, who would have testified that defendant
was with them in Texas and Oklahoma during the week that Kimberly was
allegedly assaulted in Bakersfield. Defendant also identified several
witnesses in Kern County who would have testified that Kimberly was not
at her apartment on the day she was allegedly assaulted, and that Sheila
entered the apartment to remove a recording device she had attached to
Kimberly's telephone.
Revolo explained that he had already filed a new trial motion based
on the court's refusal to continue the trial so he could locate the out-ofstate witnesses. Revolo said he had done everything possible to find the
two witnesses prior to trial because they provided defendant with an alibi,
but he did not have enough time.
The court decided to grant the Marsden motion and appointed
another attorney to investigate defendant's allegations of ineffective
assistance and determine whether another new trial motion should be filed
based on Revolo's alleged failure to investigate and prepare for the case.
The court appointed Brian McNamara to represent defendant and granted
numerous continuances for McNamara to obtain trial transcripts and fully
research possible new trial issues.
On May 28, 2010, over six months after Revolo was removed from
the case, the court convened the sentencing hearing. Defendant was
represented by McNamara, who noted that the new trial motion previously
filed by Revolo was still before the court. McNamara stated that he was
withdrawing that motion after "full consultation" with defendant, and they
were not filing another motion for new trial. Thereafter, the court
addressed defendant's sentencing arguments and imposed the sentence.
F.

Analysis

Defendant argues the court should have granted the midtrial
Marsden motion he made on September 21, 2009, because Revolo was
prejudicially ineffective, he failed to investigate the case, and he failed to
secure the attendance of alibi witnesses. Defendant points out that at the
midtrial Marsden hearing, Revolo argued that he had insufficient time to
prepare for the case and subpoena witnesses. Defendant argues that
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Revolo's "admissions," together with defendant's own "unchallenged
allegations," established that his due process rights were violated when
the court denied the midtrial Marsden motion because of Revolo's failure
to prepare.
We find the court did not abuse its discretion, and defendant did not
suffer any prejudice from the denial of defendant's midtrial Marsden
motion. While both defendant and Revolo complained at that hearing
about insufficient time to prepare, Revolo adequately introduced evidence
about both of defendant's defense theories – that Richard Arvizu may
have been responsible for burning Kimberly, and that defendant was not in
Bakersfield at the time Kimberly suffered the burns.
As for Arvizu's alleged culpability, Haliki Green testified for the
defense about Kimberly's involvement with Arvizu. He was present when
they filmed a pornographic video, and Arvizu was a rough operator and
"burning" could have occurred. Kimberly also testified that Arvizu may
have burned her. Of course, Kimberly's trial testimony on this point
suffered from severe credibility problems given her wildly inconsistent
stories about the origin of the voicemail recording and how she was
burned.
Revolo also presented defendant's alibi defense through the
testimony of Timothy Harlston, who claimed that he was at defendant's
apartment on the day of the alleged assault, that "Mercedes" was there
and said that Kimberly was out of town, that he never saw defendant or
Kimberly there, and that Sheila took something out of the apartment.
Defendant asserts that his Marsden motion should have been
granted because of Revolo's failure to find the two out-of-state alibi
witnesses who would have supported his alibi. Defendant's contentions on
these points are refuted by the posttrial history of this case, including
defendant's failure to file a new trial motion based on Revolo's alleged
ineffective assistance. As we have explained, the court granted
defendant's posttrial Marsden motion and appointed another attorney,
McNamara, to investigate possible ineffective assistance and new trial
issues, particularly as to whether Revolo should have produced certain
alibi witnesses. Revolo had already filed a motion for new trial based on
the court's refusal to grant a continuance to find the out-of-state witnesses.
Revolo's new trial motion remained pending with the court while
McNamara made numerous continuance motions, requested and obtained
the lengthy trial and Marsden hearing transcripts, and declared he was
investigating certain matters pursuant to preparing a new trial motion.
At the sentencing hearing, which was held over six months after
McNamara's appointment, McNamara appeared with defendant and
informed the court that after "full consultation" with defendant, and "talking
with [defendant] out at the jail several times," the defense was withdrawing
the new trial motion which had been filed by Revolo. McNamara further
stated that the defense was not going to file another new trial motion, and
did not raise any ineffective assistance issues.
In order to establish ineffective assistance based on an alleged
failure to investigate, a defendant "must prove that counsel failed to make
particular investigations and that the omissions resulted in the denial of or
inadequate presentation of a potentially meritorious defense. [Citation.] In
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particular, [the defendant] must show that counsel knew or should have
known that further investigation was necessary and must establish the
nature and relevance of the evidence that counsel failed to present or
discover." (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
Given the entirety of the record, including the posttrial history of this
case, there is no evidence that defendant suffered any prejudice from the
court's denial of his midtrial Marsden motion based on Revolo's alleged
failure to prepare, investigate, and/or present alibi witnesses. Revolo
introduced evidence about defendant's alleged alibi and Arvizu's purported
culpability. McNamara had ample time to investigate the allegations
defendant made at the posttrial Marsden hearing, about Revolo's alleged
ineffective assistance and failure to locate the purported out-of-state alibi
witnesses. Nevertheless, defendant concurred with the decision to
withdraw the pending new trial motion and not to file another one.
Defendant has not challenged McNamara's posttrial investigation of
his case, McNamara's decision to withdraw Revolo's new trial motion, or
McNamara's decision not to file any ineffective assistance and/or new trial
motions based on Revolo's alleged failure to investigate or produce the
alleged alibi witnesses. The absence of posttrial motions on these matters
necessarily refutes defendant's claim that Revolo was not prepared to
represent him or that he suffered any prejudice from the court's denial of
his midtrial Marsden motion.[fn7]
FN7: Defendant separately contends that his convictions must be
reversed because of cumulative errors based on the contentions raised in
issues I through IV. Given our rejection of these contentions, we further
reject his assertions about cumulative error.
People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229.
2.

Law Applicable to Ineffective Assistance of Counsel Claims

17
While there is no clearly established Supreme Court law regarding whether the
18
failure to grant a motion to substitute counsel violates Petitioner's constitutional rights,
19
the claim encompasses Petitioner's claim that his right to effective assistance of counsel
20
was violated.
21
The law governing ineffective assistance of counsel claims is clearly established
22
for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d).
23
Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas
24
corpus alleging ineffective assistance of counsel, the Court must consider two factors.
25
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lowry
26
v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's
27
performance was deficient, requiring a showing that counsel made errors so serious that
28
35

1

he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment.

2

Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell

3

below an objective standard of reasonableness, and must identify counsel's alleged acts

4

or omissions that were not the result of reasonable professional judgment considering

5

the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348

6

(9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court

7

indulges a strong presumption that counsel's conduct falls within the wide range of

8

reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v.

9

Richter, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

10

Second, the petitioner must demonstrate that "there is a reasonable probability

11

that, but for counsel's unprofessional errors, the result ... would have been different."

12

Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were “so serious

13

as to deprive defendant of a fair trial, a trial whose result is reliable.” Id. at 687. The

14

Court must evaluate whether the entire trial was fundamentally unfair or unreliable

15

because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United

16

States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).

17

A court need not determine whether counsel's performance was deficient before

18

examining the prejudice suffered by the petitioner as a result of the alleged deficiencies.

19

Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any

20

deficiency that does not result in prejudice must necessarily fail. However, there are

21

certain instances which are legally presumed to result in prejudice, e.g., where there has

22

been an actual or constructive denial of the assistance of counsel or where the State has

23

interfered with counsel's assistance. Id. at 692; United States v. Cronic, 466 U.S., at

24

659, and n. 25 (1984).

25
26
27
28

As the Supreme Court reaffirmed recently in Harrington v. Richter, meeting the
standard for ineffective assistance of counsel in federal habeas is extremely difficult:
The pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel's performance fell below Strickland's standard.
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12

Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are different. For
purposes of § 2254(d)(1), "an unreasonable application of federal law is
different from an incorrect application of federal law." Williams, supra, at
410, 120 S. Ct. 1495, 146 L. Ed. 2d 389. A state court must be granted a
deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.
A state court's determination that a claim lacks merit precludes
federal habeas relief so long as "fairminded jurists could disagree" on the
correctness of the state court's decision. Yarborough v. Alvarado, 541
U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). And as this
Court has explained, "[E]valuating whether a rule application was
unreasonable requires considering the rule's specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-bycase determinations." Ibid. "[I]t is not an unreasonable application of
clearly established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by this Court."
Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419, 173 L. Ed.
2d 251, 261 (2009) (internal quotation marks omitted).
Harrington v. Richter, 131 S. Ct. at 785-86.

13

"It bears repeating that even a strong case for relief does not mean the state

14

court's contrary conclusion was unreasonable." Id. at 786. "As amended by AEDPA, §

15

2254(d) stops short of imposing a complete bar on federal court relitigation of claims

16

already rejected in state proceedings." Id. "As a condition for obtaining habeas corpus

17

from a federal court, a state prisoner must show that the state court's ruling on the claim

18

being presented in federal court was so lacking in justification that there was an error

19

well understood and comprehended in existing law beyond any possibility for fairminded

20

disagreement." Id. at 786-87.

21

Accordingly, even if Petitioner presents a strong case of ineffective assistance of

22

counsel, this Court may only grant relief if no fairminded jurist could agree on the

23

correctness of the state court decision.

24

3.

Analysis

25

The state court, in denying the claim applied the appropriate federal standard for

26

ineffective assistance of counsel under Strickland and found that Petitioner did not

27

establish that he was prejudiced by the actions of counsel. In this case, Petitioner

28

contends that counsel failed to investigate and procure two out of state witnesses that
37

1

could have testified that Petitioner was not with the victim at the time of the assault.

2

Petitioner contends that counsel was ineffective for failing to find and present two

3

female witness, one from Texas, and one from Oklahoma, to testify in his defense. Trial

4

counsel requested continuances of the trial date to procure the witnesses, but his

5

investigator was unable to locate the witnesses. Petitioner acknowledged that even if the

6

witnesses could be found, it would be difficult for them to testify due to child care issues,

7

and that one of the witnesses was likely not capable of sitting through questioning.

8

"Although trial counsel is typically afforded leeway in making tactical decisions

9

regarding trial strategy, counsel cannot be said to have made a tactical decision without

10

first procuring the information necessary to make such a decision." Reynoso v. Giurbino,

11

462 F.3d 1099, 1112 (9th Cir. 2006); Cannedy v. Adams, 706 F.3d 1148, 1162 (9th Cir.

12

2013). While a failure to perform an adequate investigation can be a basis for deficient

13

performance under Strickland, Petitioner has not shown that he is entitled to relief with

14

regard to this claim.

15

Based on the representations of defense counsel, counsel and his investigator

16

requested and obtained continuances of trial to provide more time to locate the

17

witnesses, but ultimately could not reach the witnesses. Petitioner has not shown that he

18

was prejudiced by counsel's conduct. From the record, it appears that counsel engaged

19

in appropriate discovery regarding the out of state witnesses, but despite reasonable

20

efforts was unable to locate them. Regardless, counsel presented other alibi witnesses.

21

One testified that neither Petitioner nor the victim were present at the victim's apartment

22

on the date of the alleged assault. Another witness, and the victim herself, testified that

23

that the victim may have been burned her during the course of a pornographic video

24

shoot.

25

The finding of the state court that Petitioner was not prejudiced by the actions of

26

counsel is reasonable. Counsel attempted to find the out of state witness, but was

27

unable to locate them. At trial, counsel presented other witnesses that presented

28

testimony to refute that Petitioner was with the victim at the time of the assault and
38

1

provided a plausible alternative explanation for the burns. Finally, after trial, the court

2

provided Petitioner new counsel, and granted Petitioner several continuances while the

3

new counsel researched the case to determine whether there was any basis for filing the

4

motion for a new trial. After investigation, counsel withdrew the motion for a new trial.

5

Based on the evidence presented, Petitioner has not shown that it would have been

6

possible to find the witnesses, or that the result of the trial would have been different with

7

their testimony. Despite the testimony of alibi witnesses at trial, the jury found the weight

8

of the prosecution's evidence enough to support finding Petitioner guilty of most of the

9

charged offenses.

10

Petitioner has not met his burden of showing that but for counsel being ineffective,

11

there was a "reasonable probability that... the result ... would have been different."

12

Strickland, 466 U.S. at 694. The prosecution presented strong evidence of Petitioner's

13

guilt based on the phone recording of the incident and the testimony and photographic

14

evidence of the burn injuries.

15

Based on the strong evidence presented of Petitioner's involvement in the crime

16

of conviction, it is unlikely that jurors would have not found Petitioner guilty if his counsel

17

would have procured the out of state witnesses and presented their testimony at trial.

18

Fairminded jurists could therefore disagree with the correctness of the state court

19

decision that counsel's failure to object to the admission of the testimony as not "so

20

serious as to deprive defendant of a fair trial, a trial whose result is reliable." Strickland,

21

466 U.S. at 687. Petitioner's claim of ineffective assistance of counsel is without merit.

22

E.

23

Petitioner, in his fifth claim, contends that the cumulative effect of the errors at trial

24
25

Claim Five: Cumulative Error

violated his rights.
1.

State Court Decision

26

Petitioner presented his claim by way of direct appeal to the California Court of

27

Appeal, Fifth Appellate District. The claims were denied in a reasoned decision by the

28

Court of Appeal (People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229) and in a
39

1

subsequent petition for review filed with California Supreme Court. As stated earlier,

2

"where there has been one reasoned state judgment rejecting a federal claim, later

3

unexplained orders upholding that judgment or rejecting the claim rest on the same

4

grounds." See Ylst v. Nunnemaker, 501 U.S. at 803-04. Accordingly, this Court “looks

5

through” the California Supreme Court decision to the reasoned analysis of the Court of

6

Appeal.

7

With regard to the cumulative error claim, the Court of Appeal said in its opinion:

8

Defendant separately contends that his convictions must be reversed
because of cumulative errors based on the contentions raised in issues I
through IV. Given our rejection of these contentions, we further reject his
assertions about cumulative error.

9
10

People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229, n.7.
11
2.

Analysis

12
The Ninth Circuit has concluded that under clearly established United States
13
Supreme Court precedent, the combined effect of multiple trial errors may give rise to a
14
due process violation if it renders a trial fundamentally unfair, even where each error
15
considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927
16
(9th. Cir. 2007) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40
17
L. Ed. 2d 431 (1974) and Chambers v. Mississippi, 410 U.S. 284, 290, 93 S. Ct. 1038,
18
35 L. Ed. 2d 297 (1973)). See also Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (if
19
no error of constitutional magnitude occurred at trial, "no cumulative prejudice is
20
possible"). "The fundamental question in determining whether the combined effect of trial
21
errors violated a defendant's due process rights is whether the errors rendered the
22
criminal defense 'far less persuasive,' Chambers, 410 U.S. at 294, and thereby had a
23
'substantial and injurious effect or influence' on the jury's verdict." Parle, 505 F.3d at 927
24
(quoting Brecht, 507 U.S. at 637).
25
This Court has addressed each of Petitioner's claims raised in the instant petition
26
and has concluded that no error of constitutional magnitude occurred at his trial in state
27
court. This Court also concludes that the errors alleged by Petitioner, even when
28
40

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considered together, did not render his defense "far less persuasive," nor did they have

2

a "substantial and injurious effect or influence on the jury's verdict." Accordingly,

3

Petitioner is not entitled to relief on his claim of cumulative error.

4

F.

5

Petitioner, in his sixth claim, contends that the trial court erred by denying his

6

Claim Six: Consecutive Sentences

motion to bifurcate the trial with regard to the gang enhancements. (Pet. at 17.)

7

1.

State Court Decision

8

Petitioner presented his claim by way of direct appeal to the California Court of

9

Appeal, Fifth Appellate District. The claims were denied in a reasoned decision by the

10

Court of Appeal (People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229) and in a

11

subsequent petition for review filed with California Supreme Court. Since the Court of

12

Appeal was the last court to issue a reasoned opinion on these issues, this Court “looks

13

through” the California Supreme Court decision to the reasoned analysis of the Court of

14

Appeal.

15

With regard to the cumulative error claim, the Court of Appeal said in its opinion:

16

VI. Sentencing issues

17

Defendant was sentenced to 14 years to life for count II, torture,
plus a consecutive term of five years for the prior serious felony
enhancement. The court imposed a concurrent term for count V, criminal
threats. Defendant contends the court should have granted his motion to
stay the term imposed for count V pursuant to section 654, because
counts II and V occurred during a single course of conduct, and he had
the same intent when he committed the offenses of torture and criminal
threats.

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21
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23
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27
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A. Background
The probation report recommended the imposition of consecutive
sentences for count II, torture, and count V, criminal threats, because the
crimes involved separate acts of violence or threats of violence.
At the sentencing hearing, defense counsel argued the sentence
for criminal threats should be stayed pursuant to section 654. Defense
counsel argued the acts constituting torture and criminal threats occurred
during a single course of conduct, with a single intent during the entire
episode to frighten, threaten, and harm the victim. Counsel noted that
defendant threatened and burned the victim at the same time, so that he
was acting on and carrying out the criminal threats during the torture.

41

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27
28

The prosecutor argued the voicemail recording showed that
defendant separately threatened to harm Kimberly if she was not faithful to
him, and those threats were independent of the assault and torture with
the iron. The prosecutor asserted that while the convictions were based on
one chronological incident, the threats and torture were separate events
committed with separate intents.
The court asked the parties to address whether consecutive
sentences were appropriate because the crimes involved separate acts of
violence and/or threatened offenses. The court asked defense counsel if it
determined that section 654 was "inapplicable to Count 5, won't you want
to be making an argument that it should not be consecutively added to the
torture charge, should be sentenced concurrent with the torture charge?"
Defense counsel agreed that the court should impose a concurrent term
for count V if it rejected his section 654 argument.
The court made the following findings as to count V, criminal
threats:
"As to the consecutive versus concurrent sentencing, the
grounds cited for consecutive sentence is the fact that the
crimes involved separate acts of violence or threats of
violence that does not necessarily require temporal
separation, but separate acts.
"However, in this particular circumstance[] and as particularly
demonstrated by the tape record — or the recording that
was played, the threats of violence that were made were
made at the same time and, as far as this court is
concerned, in the same course of conduct applying torture to
the victim and physical harm to the victim and emotional
harm to the victim, all of which are the objects of the torture
count.
"So the court is not going to sentence consecutively as to
Count 5 ...." (Italics added.)
The court imposed the second strike sentence of 14 years to life for
count II, torture, plus a consecutive term of five years for the prior serious
felony enhancement. The court imposed a concurrent term for count V,
criminal threats. As to counts III, assault with a deadly weapon, and count
IV, infliction of corporal injury, the court stayed the terms and
enhancements imposed pursuant to section 654. The court did not make
any express findings as to why it did not stay the term imposed for count
V.
B. Analysis
"Section 654 applies when there is a course of conduct which
violates more than one statute but constitutes an indivisible transaction.
[Citation.] The purpose of section 654 is to ensure that a defendant's
punishment will be commensurate with his culpability. [Citation.] Whether
a course of criminal conduct is a divisible transaction which could be
punished under more than one statute within the meaning of section 654
depends on the intent and objective of the actor. [Citation.]" (People v.
Saffle (1992) 4 Cal.App.4th 434, 438, italics added.) "'If all of the offenses
42

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were incident to one objective, the defendant may be punished for any
one of such offenses but not for more than one.' [Citation.]" (People v. Britt
(2004) 32 Cal.4th 944, 951-952.)
The sentencing court's factual findings as to whether section 654
applies, and whether there was more than one objective, will not be
reversed on appeal if there is any substantial evidence to support those
findings. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v.
Saffle, supra, 4 Cal.App.4th 434, 438.) This includes the court's implied
findings. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190.)
While the court in this case did not make an express finding as to
section 654, there is substantial evidence to support its implied finding that
section 654 did not apply to stay the sentence imposed for count V,
criminal threats. The court clearly considered defense counsel's
arguments about section 654, but asked counsel to consider the
alternative argument as to whether concurrent sentences were
appropriate if the court rejected the section 654 issue. Given those
statements, the court understood the scope of its discretion pursuant to
section 654.
When the court imposed the sentence for court V, it rejected the
probation report's recommendation for consecutive terms and instead
found the torture and criminal threats were inflicted during the same
course of conduct and a concurrent term was more appropriate.[fn8]
FN8: California Rules of Court, rule 4.425 lists a number of factors the
court may consider in determining whether a sentence should be
concurrent or consecutive, including whether the crimes involved separate
acts of violence and whether they were committed at different times. (Cal.
Rules of Court, rule 4.425(a)(2), (3).)
The court's implied finding, that count V should not be stayed
pursuant to section 654, is supported by substantial evidence because
defendant had separate intents and objectives when he committed the
offenses of torture and criminal threats. Kimberly told Officer Pence that
the incident began when she received a telephone call from a former
boyfriend. During the voicemail recording, Kimberly pleaded with
defendant not to burn her with the iron, and defendant repeatedly accused
her of cheating on him, threatened to kill her, and warned her not to fool
around on him. Even though defendant threatened Kimberly as he was
burning her, his criminal threats were intended to control Kimberly's future
conduct and make sure she did not cheat on him again, whereas he
burned her with the iron to punish her for what he perceived as her alleged
infidelity with the former boyfriend.
People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229 at 47-53.
2.

Legal Standard

25
"The decision whether to impose sentences concurrently or consecutively is a
26
matter of state criminal procedure and is not within the purview of federal habeas
27
corpus." Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); accord. Souch v.
28
43

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Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) ("because the trial court actually had

2

absolute discretion to impose either consecutive or concurrent sentences[,] ... neither an

3

alleged abuse of discretion by the trial court in choosing consecutive sentences, nor the

4

trial court's alleged failure to list reasons for imposing consecutive sentences, can form

5

the basis for federal habeas relief." (emphasis omitted)); see also Oregon v. Ice, 555

6

U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009) (no Apprendi error if a judge

7

determines to impose consecutive sentences in lieu of the jury).

8

3.

Analysis

9

Petitioner contends that he was improperly sentenced, and that the sentence for

10

criminal threats should have been stayed, rather than made to run concurrent with his

11

other sentence.

12

Petitioner argues that the evidence in the case supports a finding that the crimes

13

were conducted during a single course of conduct, and the resulting sentence for

14

criminal threats should be stayed. Petitioner's argument that it was one continuous

15

episode is solely based on an interpretation of California's sentencing law, and,

16

therefore, his claim cannot be reviewed by a federal court on a petition for habeas

17

corpus. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385

18

(1991) ("it is not the province of a federal habeas court to reexamine state-court

19

determinations on state-law questions."). Even if this Court could review this claim, there

20

was no error by the California court as there was sufficient evidence to support the

21

consecutive sentences based on Petitioner's separate actions of threats and torture

22

against the victim. Therefore petitioner's claim is denied.

23
24
25
26

IV.

RECOMMENDATION
Accordingly, it is hereby recommended that the petition for a writ of habeas

corpus be DENIED with prejudice.

27

This Findings and Recommendation is submitted to the assigned District Judge,

28

pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after
44

1

being served with the Findings and Recommendation, any party may file written

2

objections with the Court and serve a copy on all parties. Such a document should be

3

captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply

4

to the objections shall be served and filed within fourteen (14) days after service of the

5

objections. The parties are advised that failure to file objections within the specified time

6

may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d

7

834, 839 (9th Cir. 2014).

8
9
10
11

IT IS SO ORDERED.
Dated:

March 14, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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