Wang v. Singh et al

Filing 10

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Kenneth W. Wang. Signed by Judge Yvonne Gonzalez Rogers on 11/26/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 11/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KENNETH W. WANG,
Petitioner,

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For the Northern District of California

United States District Court

No. C 12-4823 YGR (PR)
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS; DENYING CERTIFICATE
OF APPEALABILITY

v.

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WARDEN SINGH,
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Respondent.
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INTRODUCTION

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This matter is now before the Court for consideration of Kenneth W. Wang’s (“Petitioner”)

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pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 concerning his 2010 conviction in

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San Francisco County Superior Court. For the reasons set forth below, the Petition is DENIED as to

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all claims. A certificate of appealability is also denied.

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BACKGROUND
I.

Case History
In a bench trial, the court found Petitioner guilty of (1) assault with a deadly weapon, a knife,

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with infliction of great bodily injury and (2) damaging a telephone line. (Ans., Ex. 6 at 1). The

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court sentenced Petitioner to an aggregate seven-year prison term: an upper four-year term on the

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assault conviction and three additional years on the great bodily injury enhancement. Id. The court

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imposed a concurrent two-year sentence for the telephone line conviction. Id. Petitioner appealed

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the judgment to the California Court of Appeal. (Ans., Ex. 3.)
On December 22, 2011, the California Court of Appeal, in an unpublished written opinion,

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affirmed the judgment of conviction. (Ans., Ex. 6, People v. Wang, 2011 WL 6650078 (Cal. Ct.

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App. Dec. 22, 2011.) On February 29, 2012, the California Supreme Court denied Petitioner's

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petition for review. (Ans., Ex. 8.)

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On September 14, 2012, Petitioner filed the instant petition for a writ of habeas corpus.

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(Docket no. 1.) On October 17, 2012, the Court issued an Order to Show Cause. (Docket no. 3.)

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On June 13, 2013, Respondent filed an Answer to the Petition. (Docket no. 8.) Petitioner has not

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filed a Traverse.

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II.

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For the Northern District of California

United States District Court

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Facts
In its unpublished opinion addressing Petitioner’s claims on direct appeal, the state appellate

court set forth the following summary of the facts:
In December 2006, defendant was a 42–year–old mentally ill conservatee living in a
residential hotel. He was prescribed psychotropic medication but, by December 30,
2006, had been “off [his] medication” for about a month. On that day, in the early
morning hours around 4 a.m., defendant broke into his parents' home and got into an
altercation with his brother, Jeffrey Wang, who lived there. Defendant took a knife
from his pocket and stabbed his brother 12 times.

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Medical records show four stab wounds “to the head or face, five to the left scapula
or flank, one to the lower chest and two to the left leg.” Jeffrey testified: “blood was
erupting everywhere on me.” Jeffrey managed to fight off defendant, and throw him
out the door. Jeffrey tried to call 911, but the line was dead. Defendant had pulled
out the line. Jeffrey contacted a neighbor who telephoned for help. Jeffrey waited
until about 7 a.m. before doing so because he “did not want to bother the neighbors.”
At the hospital, Jeffrey underwent a computed tomography scan to evaluate a chest
stab wound and “a surgical procedure” to evaluate possible internal injury to the
abdomen. For the “surgical procedure,” Jeffrey was “put under anesthesia” and “his
abdomen was explored with trocars, which are instruments used to visualize the
inside of the abdominal cavity.” It was found that the stab wounds penetrated the
skin and soft tissue but did not enter the abdominal cavity or chest cavity, and did
not injure the underlying organs.
Defendant was charged with multiple offenses. Initially, he was found incompetent
to stand trial and criminal proceedings were suspended while defendant underwent
treatment. In July 2008, pursuant to a progress report from Napa State Hospital,
defendant was found competent to stand trial and criminal proceedings resumed.
Defendant waived trial by jury. A bench trial was held in August 2010. The court
found defendant not guilty of attempted murder but guilty of assault with a deadly
weapon (a knife) with infliction of great bodily injury. (Pen. Code, §§ 245, subd.
(a)(1), 12022.7, subd .(a).) The court also found defendant guilty of damaging a
telephone line. (Pen. Code, § 591.)
Wang, 2011 WL6650078, at *1.

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STANDARD OF REVIEW

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This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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

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Hodges, 423 U.S. 19, 21 (1975). Under the Anti-Terrorism and Effective Death Penalty Act of 1996

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("AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on

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the basis of a claim that was reviewed on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or

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For the Northern District of California

United States District Court

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(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong applies

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both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362,

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384–86 (2000), and the second prong applies to decisions based on factual determinations. Miller-El

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v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” clearly established Supreme Court precedent if it

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“applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it

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“confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court

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and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 405–06.

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state

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court identifies the correct governing legal principle from [the Supreme] Court’s decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. "[A] federal

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habeas court may not issue the writ simply because that court concludes in its independent judgment

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that the relevant state-court decision applied clearly established federal law erroneously or

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incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court

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making the "unreasonable application" inquiry should ask whether the state court's application of

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clearly established federal law was "objectively unreasonable." Id. at 409.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will
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not be overturned on factual grounds unless objectively unreasonable in light of the evidence

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presented in the state-court proceeding.” Miller-El, 537 U.S. at 340.

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In determining whether the state court’s decision is contrary to or involved an unreasonable

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application of clearly established federal law, or is based on an unreasonable determination of the

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facts, a federal court looks to the decision of the highest state court to address the merits of a

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petitioner’s claims in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir.

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2000). Here, the California Court of Appeal was the highest court to address, in a reasoned opinion,

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Petitioner’s claims. Thus, it is that opinion which the Court reviews when ruling on those claims.

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For the Northern District of California

United States District Court

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DISCUSSION
I.

Legal Claims
Petitioner raises the following claims for habeas corpus relief: (1) insufficient evidence

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supports the trial court’s finding that the victim’s twelve stab wounds constituted great bodily injury;

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and (2) ineffective assistance of counsel.

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A.

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Petitioner argues that insufficient evidence supports the finding of great bodily injury.

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A federal court reviewing collaterally a state court conviction does not determine whether it

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is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d

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335, 338 (9th Cir. 1992). Nor does a federal habeas court in general question a jury’s credibility

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determinations, which deserve near-total deference. Jackson v. Virginia, 443 U.S. 307, 326 (1979).

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Indeed, if a record supports conflicting inferences, a federal habeas court “must presume — even if

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it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in

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favor of the prosecution, and must defer to that resolution.” Id. The federal court “determines only

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whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier

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of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Payne,

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982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have

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found proof of guilt beyond a reasonable doubt, may the writ be granted. Jackson, 443 U.S. at 324.

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“[T]he only question under Jackson is whether that [jury] finding was so insupportable as to fall

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below the threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).

Insufficient Evidence

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Under AEDPA, a federal habeas court applies the standards of Jackson with an additional

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layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Generally, a federal

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habeas court must ask whether the operative state court decision reflected an unreasonable

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application of Jackson to the facts of the case. Coleman, 132 S. Ct. at 2062; Juan H., 408 F.3d at

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1275 (quoting 28 U.S.C. § 2254(d)). To grant relief, a federal habeas court must conclude that "the

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state court's determination that a rational jury could have found that there was sufficient evidence of

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guilt, i.e., that each required element was proven beyond a reasonable doubt, was objectively

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unreasonable." Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011).

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Sufficiency of the evidence claims, on federal habeas review, is performed with reference to
the substantive elements of the criminal offense as defined by the state law. Jackson, 443 U.S. at

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For the Northern District of California

United States District Court

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324 n.16. Federal courts are bound by state court rulings on issues of state law. Mendez v. Small,

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298 F.3d 1154, 1158 (9th Cir. 2002) ("A state court has the last word on the interpretation of state

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law."); Melugin v. Hames, 38 F.3d 1478, 1487 (9th Cir. 1994) (federal habeas court is bound by state

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court's interpretation of state law).

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The Court of Appeal denied this claim, concluding that the victim’s “multiple stab wounds

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that penetrated the flesh and which necessitated an invasive surgical procedure” constituted great

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bodily injury under California Penal Code section 12022.7(f). Wang, 2011 WL6650078, at *2.

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Under California law, great bodily injury is defined as, “significant or substantial physical

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injury.” Cal. Penal Code § 12022.7(f). This definition contains no requirement that the victim

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suffer permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function.

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People v. Escobar, 3 Cal. 4th 740, 750 (1992). Less severe injuries, such as bruises and abrasions

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may constitute great bodily injury. Id.

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Petitioner argues that, because the victim’s injuries were superficial, with minimal bleeding

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and requiring minimal medical care, they do not constitute great bodily injury as defined in section

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12022.7(f). However, as noted by the Court of Appeal, the victim suffered multiple stab wounds

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that penetrated the flesh and necessitated an invasive surgical procedure. Arguably, these stabbing

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injuries were more severe than the bruises and abrasions that constituted great bodily injury in

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Escobar. Looking at the evidence in the light most favorable to the prosecution, as must be done on
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habeas review, any rational trier of fact could have found that the twelve stab wounds suffered by

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the victim met the requirements for great bodily injury as described in Escobar. The Court of

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Appeal’s denial of this claim was not objectively unreasonable. Furthermore, on habeas review, this

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Court is bound by the state court’s interpretation of state law defining great bodily injury. For this

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reason also, habeas relief on this claim is denied.

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B.

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Petitioner argues that his counsel was ineffective for failing to object to the sentencing

Ineffective Assistance of Counsel

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court’s allegedly improper dual use of facts as elements of the offense and enhancement and also as

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support for the upper term on the assault conviction.
The Court of Appeal summarized the facts relevant to this claim as follows. The sentencing

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For the Northern District of California

United States District Court

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court, in listing circumstances in aggravation, included the factors that the crime involved great

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bodily harm and that Petitioner was armed with a weapon. The sentencing court also stated that it

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chose an upper term on the assault conviction because “substantial injuries were inflicted.” Wang,

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2011 WL6650078, at *2.

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Under California law, a court “cannot use a single fact both to aggravate the base term and to

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impose an enhancement, nor may it use a fact constituting an element of the offense to aggravate or

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to enhance a sentence.” People v. Scott, 9 Cal. 4th 331, 350 (1994). The Court of Appeal

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determined that the trial court did not “scrupulously” observe the rule enunciated in Scott and that,

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arguably, the trial court improperly made dual use of facts. Wang, 2011 WL6650078, at *2.

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Nevertheless, the Court of Appeal denied this claim based on lack of prejudice because, in addition

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to weapon use and substantial injuries, the trial court listed many aggravating factors such that, even

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if counsel had objected, it was not reasonably probable that the court would have imposed a lower

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sentence. Id.

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1. Legal Standard
Claims of ineffective assistance of counsel are examined under Strickland v. Washington,

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466 U.S. 668 (1984). In order to prevail on a claim of ineffectiveness of counsel, the petitioner must

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establish two factors. First, he must establish that counsel's performance was deficient, i.e., that it

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fell below an "objective standard of reasonableness" under prevailing professional norms, "not
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whether it deviated from best practices or most common custom." Harrington v. Richter, 131 S. Ct.

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770, 788 (2011) (citing Strickland, 466 U.S. at 690 ). "A court considering a claim of ineffective

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assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range'

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of reasonable professional assistance." Id. at 787 (quoting Strickland, 466 U.S. at 689).

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Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that

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"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

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proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a

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probability sufficient to undermine confidence in the outcome. Id. "The likelihood of a different

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result must be substantial, not just conceivable." Richter, 131 S. Ct. at 792 (citing Strickland, 466
U.S. at 693). A court need not determine whether counsel's performance was deficient before

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For the Northern District of California

United States District Court

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examining the prejudice suffered by the defendant as the result of the alleged deficiencies.

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Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995).

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The standards of both 28 U.S.C. § 2254(d) and Strickland are highly deferential

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and “when the two apply in tandem, review is doubly so." Richter, 131 S. Ct. at 788. "The question

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[under § 2254(d)] is not whether counsel's actions were reasonable. The question is whether there is

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any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

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2. Analysis

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At Petitioner’s sentencing hearing, the trial court stated:

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This crime is a serious offense. The defendant was armed and used a deadly weapon. The
victim, his brother, sleeping and being at home in the early morning hours, was vulnerable.
. . . The crime did involve great violence, great bodily harm and acts that disclosed a high
degree of viciousness. . . . The victim [sic] was convicted of severing of the wire, the
telephone line. He was convicted of that crime for which consecutive sentence could be
imposed, but I’m going to impose a concurrent sentence based on the sentencing structure
that the court thinks is appropriate in this case. There is very good grounds to make the
[telephone line conviction] run consecutive. Because, unlike many such instances, this
actually prevented the terrified victims from contacting the police for a number of hours, and
in many cases of domestic violence, the cutting of the phone line is not – doesn’t
substantially increase the harm or the risk.

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...

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[Defendant] has engaged in violent conduct. The seriousness of his offenses are increasing.
He has served a prior prison term, and his performance on parole was unsatisfactory given
the number of revocations.

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...
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The reason why this court feels that an aggravated sentence is justified is this is a home
invasion of a residence early in the morning hours. It showed some planning, not
professionalism or sophistication, but it did show some planning, and it was done in the
intentional violation of a restraining order, and in the course of the assault with a knife,
substantial injuries were inflicted. There were at least 12 stab wounds.

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Rule 4.421 of the California Rules of Court lists factors relating to the crime and to the

6 defendant that can be used as circumstances in aggravation. The factors include the following: (1)
7 the crime involved great violence, great bodily harm, . . . or other acts disclosing a high degree of
8 cruelty, viciousness, or callousness; (2) the defendant was armed with or used a weapon at the time of
9 the commission of the crime; (3) the victim was particularly vulnerable; (4) the defendant was

11 concurrent sentences are being imposed; (5) the manner in which the crime was carried out indicates
For the Northern District of California

United States District Court

10 convicted of other crimes for which consecutive sentences could have been imposed but for which

12 planning, sophistication, or professionalism; (6) the defendant’s prior convictions are of increasing
13 seriousness; (7) the defendant has served a prior prison term; and (8) the defendant’s prior
14 performance on probation or parole was unsatisfactory. Cal. Rules of Court, Rule 4.421.
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In sentencing Petitioner, the court mentioned each of the above factors listed in California

16 Rule of Court 4.421 and could have used any of them to impose an upper term on Petitioner’s assault
17 conviction. As noted by the Court of Appeal, proper consideration of all these factors “warranted the
18 imposition of the upper term.” Wang, 2011 WL6650078, at *2. The Court of Appeal also noted that
19 the trial court had given good grounds for running the two-year term on the conviction for severing
20 the telephone line consecutive to the term for the assault conviction. Therefore, had counsel objected
21 to the trial court’s reference to weapon use and injury when it imposed the upper term on the assault
22 conviction, the court could have reached the same sentence by omitting those references from its list
23 of aggravating factors, or would have made the sentence for severing the phone line consecutive
24 rather than concurrent to the sentence for assault. Because there is no substantial likelihood that
25 Petitioner’s sentence would have been different had counsel objected, Petitioner has failed to
26 establish prejudice under Strickland. Thus, the Court of Appeal’s denial of this claim based on lack
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CONCLUSION
For the foregoing reasons, the Court DENIES the Petition for Writ of Habeas Corpus as to all

3 claims. A certificate of appealability will not issue. Reasonable jurists would not find the district
4 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
5 473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of Appeals. The
6 Clerk shall enter judgment in favor of Respondent and close the file.
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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

10 DATED:

November 26, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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