Morales v. McDonald
Filing
25
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus must be DENIED.Further, a Certificate of Appealability is DENIED. The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file. Signed by Judge Edward J. Davila on 7/18/2014. (ecg, COURT STAFF) (Filed on 7/18/2014)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
For the Northern District of California
United States District Court
10
JUAN JOSE MORALES,
12
13
Petitioner,
v.
14
P. D. BRAZELTON, Warden,
15
Respondent.
16
)
)
)
)
)
)
)
)
)
)
)
)
No. C 11-06656 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY
17
18
Petitioner has filed a pro se petition for a writ of habeas corpus under 28
19
U.S.C. § 2254 challenging his state conviction from Sonoma County Superior Court.
20
For the reasons set forth below, the Petition for a Writ of Habeas Corpus is
21
DENIED.
22
23
BACKGROUND
Petitioner was found guilty by a jury of three counts of possession of firearm
24
by a felon (Pen. Code § 12021, subd. (a)(1))1; two counts of possession of
25
ammunition by a felon (§ 12316, subd. (b)(1)); attempting to evade a police officer
26
(Cal. Veh. Code § 2800.2, subd. (a)); misdemeanor resisting and obstructing a police
27
28
1
All further unspecified statutory references are to the California Penal Code.
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
1
officer (§ 148, subd. (a)(1)); child abuse likely to create great bodily harm (§ 273a,
2
subd. (a)); assault with a firearm (§ 245, subd. (a)(2)); shooting at an inhabited
3
dwelling (§ 246); and first degree burglary (§ 459). The jury also found true various
4
enhancements. Petitioner was sentenced to state prison for 10 years plus 25 years to
5
life on September 16, 2006.
6
Petitioner appealed his conviction. On November 26, 2008, the California
inhabited dwelling, and remanded the case for resentencing; judgment was affirmed
9
in all other respects. (Ans. Ex. B.) Upon remand, the trial court appointed new
10
counsel to represent Petitioner, and resentenced Petitioner to 24 years and eight
11
For the Northern District of California
Court of Appeal, in a published opinion, reversed the conviction for shooting at an
8
United States District Court
7
months in prison on May 28, 2009. (Id., Ex. D, Reporter’s Transcript (“RT”) at 3, 9-
12
11.) The state appellate court affirmed the judgment. (Id., Ex. G.) The California
13
Supreme Court denied review on March 17, 2011. (Id., Ex. I.)
14
Petitioner also filed a petition for a writ of habeas corpus in the state appellate
15
court, which denied the petition on December 30, 2010. (Id., Ex. M.) Petitioner
16
sought review in the state high court, which denied the petition on March 17, 2011.
17
(Id., Ex. O.)
18
Petitioner filed the instant federal habeas petition on December 27, 2011.
19
20
21
FACTUAL BACKGROUND
The following facts are taken from the opinion of the California Court of
22
Appeal, affirming the judgment when Petitioner appealed the trial court’s re-
23
sentencing on remand:
24
I. BACKGROUND [FN1]
25
27
FN1. Our discussion of the facts will quote extensively from
our published decision in Morales I to explain the background
of this case. Bracketed materials within quotations from that
decision indicate additions to the language of Morales I.
28
A jury found [Petitioner] guilty of “possession of a firearm by
26
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
2
1
2
3
4
5
6
a felon (Pen. Code, [FN2] § 12021, subd. (a)(1)) (counts I, V, and
XII); possession of ammunition by a felon (§ 12316, subd. (b)(1))
(counts II and VI); attempting to evade a police officer (Veh. Code, §
2800.2, subd. (a)) (count III); misdemeanor resisting and obstructing
a police officer (§ 148, subd. (a)(1)) (count IV); child abuse likely to
create great bodily harm (§ 273a, subd. (a)) (count VII); assault with
a firearm (§ 245, subd. (a)(2)) (count IX); shooting at an inhabited
dwelling (§ 246) (count X); and first degree burglary (§ 459) (count
XI). Various enhancement allegations were also found true.
[Petitioner] was [originally] sentenced to 10 years plus 25 years to
life in prison.” [People v. Morales (2008) 168 Cal.App.4th 1075,
1078 (Morales I).]
7
8
9
11
For the Northern District of California
United States District Court
10
12
13
FN2. All undesignated statutory references are to the Penal
Code.
The charges arose out of three incidents. The first took place
on August 4, 2004, the day after Rhonda Oliva had given birth to his
son. [FN3] [Petitioner] was visiting Oliva at the hospital, and the
two had a “big fight.” A security officer was called, and found the
room in disarray, with a food tray table and other furniture knocked
over and bed sheets thrown to the floor. The officer escorted
[Petitioner] out of the hospital, and [Petitioner] told him he wanted to
retrieve a gun from Oliva’s car, saying it belonged to a friend. A
police officer searched the car and found a loaded semiautomatic
pistol under the driver’s seat.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FN3. Because the facts of this incident were not germane to
the issues on appeal in Morales I, we did not recite them
there. (Morales I, supra, 168 Cal.App.4th at p. 1079, fn. 4.)
We take judicial notice of the appellate record in Morales I.
The second incident took place on November 17, 2004, when
“[Petitioner] was driving a car with 16-year-old Kayla in the
passenger seat. Police Officer Richard Celli of the Santa Rosa Police
Department saw that the car had expired registration tags. He put on
his overhead lights and siren to signal [Petitioner]’s car to pull over.
The car signaled to the right but continued on the road. Celli
pursued [Petitioner], who evaded him and sped through a stop sign
without stopping. After going through a red light, [Petitioner]’s car
collided with a telephone pole, spun around, and hit a metal post.”
(Morales I, supra, 168 Cal.App.4th at p. 1078), fn. omitted.) A
loaded .380 caliber pistol magazine was found in the driver’s door
pocket, and a loaded .380 semi-automatic pistol and magazine were
found nearby.
The third incident occurred on November 23, 2004. “Rhonda
Oliva and Sebastian Fent were at Oliva’s home, along with Oliva’s
three-month-old baby, [Petitioner]’s son. In the middle of the night,
[Petitioner] began banging on the front door, tearing off the screen
door. He moved to the bedroom window and tore at the window
screen while yelling. Fent called 911[, and Oliva took him to the
garage to get something to protect himself. Fent got a bat from the
garage], then went into the kitchen and locked the door between the
kitchen and the garage. Fent heard a crash or bang in the garage, and
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
3
1
[Petitioner] began pounding on the door leading from the garage to
the kitchen . He fired three or four shots through the kitchen door.
Two of the shots hit Fent’s legs.” (Morales I, supra, 168
Cal.App.4th at pp. 1078-1079, fns. omitted.) [Petitioner] later told a
police officer that he was concerned that Oliva was not feeding his
son, went into the garage to find a bat, and found a gun there. He
said that after the incident, he thre it into a field. [FN4]
2
3
4
FN4. A gun was found in a nearby field.
5
In Morales I, we concluded [Petitioner]’s actions in the
November 23, 2004, incident did not meet the elements of section
246, shooting at an inhabited dwelling, reversed count X, and
remanded the matter for resentencing. (Morales I, supra, 168
Cal.App.4th at pp. 1079-1082, 1085.)
6
7
8
On remand, the trial court sentenced [Petitioner] to a total
prison sentence of 24 years and eight months. On count IX, assault
with a firearm (§ 245, subd. (a)(2)), it imposed the upper term of four
years, with a three-year enhancement for infliction of great bodily
injury (§ 12022.7, subd. (a)), a 10-year enhancement for personal use
of a firearm (§ 12022.5, subds. (a)-(d)), and a two-year out-on-bail
enhancement (§ 12022.1). The court imposed an eight-month
sentence (one-third the midterm) on count I; a concurrent three-year
term on count V; a consecutive sentence of one year and four months
(one-third the midterm) on count VII, with a two-year out-on-bail
enhancement (§ 12022.1); a consecutive eight month sentence (onethird midterm) on count XII; and a one-year enhancement under
section 667.5, subdivision (b), for a prior prison term. The court
stayed sentence on counts II, III, and IX pursuant to section 654.
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
17
(Ans. Ex. G at 1-3.)
DISCUSSION
18
19
20
I.
Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a
21
person in custody pursuant to the judgment of a State court only on the ground that
22
he is in custody in violation of the Constitution or laws or treaties of the United
23
States.” 28 U.S.C. § 2254(a). The writ may not be granted with respect to any
24
claim that was adjudicated on the merits in state court unless the state court’s
25
adjudication of the claim: “(1) resulted in a decision that was contrary to, or
26
involved an unreasonable application of, clearly established Federal law, as
27
determined by the Supreme Court of the United States; or (2) resulted in a decision
28
that was based on an unreasonable determination of the facts in light of the evidence
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
4
1
2
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if
3
the state court arrives at a conclusion opposite to that reached by [the Supreme]
4
Court on a question of law or if the state court decides a case differently than [the]
5
Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529
6
U.S. 362, 412-13 (2000). The only definitive source of clearly established federal
7
law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the
8
Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412;
9
Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be
“persuasive authority” for purposes of determining whether a state court decision is
11
For the Northern District of California
United States District Court
10
an unreasonable application of Supreme Court precedent, only the Supreme Court’s
12
holdings are binding on the state courts and only those holdings need be
13
“reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled
14
on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
15
“Under the ‘unreasonable application’ clause, a federal habeas court may
16
grant the writ if the state court identifies the correct governing legal principle from
17
[the Supreme Court’s] decisions but unreasonably applies that principle to the facts
18
of the prisoner’s case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s
19
‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ
20
simply because that court concludes in its independent judgment that the relevant
21
state-court decision applied clearly established federal law erroneously or
22
incorrectly.” Id. at 411. A federal habeas court making the “unreasonable
23
application” inquiry should ask whether the state court’s application of clearly
24
established federal law was “objectively unreasonable.” Id. at 409. The federal
25
habeas court must presume correct any determination of a factual issue made by a
26
state court unless the petitioner rebuts the presumption of correctness by clear and
27
convincing evidence. 28 U.S.C. § 2254(e)(1).
28
The state court decision to which Section 2254(d) applies is the “last
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
5
1
reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-
2
04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there
3
is no reasoned opinion from the highest state court considering a petitioner’s claims,
4
the court “looks through” to the last reasoned opinion. See Ylst, 501 U.S. at 805.
AEDPA, there is a heightened level of deference a federal habeas court must give to
7
state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam);
8
Harrington v. Richter, 131 S. Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S. Ct.
9
1305 (2011) (per curiam). As the Court explained: “[o]n federal habeas review,
10
AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings’
11
For the Northern District of California
The Supreme Court has vigorously and repeatedly affirmed that under
6
United States District Court
5
and ‘demands that state-court decisions be given the benefit of the doubt.’” Id. at
12
1307 (citation omitted). With these principles in mind regarding the standard and
13
limited scope of review in which this Court may engage in federal habeas
14
proceedings, the Court addresses Petitioner’s claims.
15
C.
16
Claims and Analysis
As grounds for federal habeas relief, Petitioner claims that he received
17
ineffective assistance of counsel at his resentencing hearing. The trial court
18
appointed counsel to represent Petitioner, when his original trial attorney was
19
unavailable. Petitioner claims that his newly appointed attorney failed to provide
20
letters in support of a more lenient sentence, and erroneously told the trial court that
21
the strike enhancements were mandatory.2
22
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim,
23
petitioner must establish two things. First, he must establish that counsel’s
24
performance was deficient, i.e., that it fell below an “objective standard of
25
2
26
27
28
Petitioner also generally claims that his attorney failed to communicate with
him prior to sentencing. (Pet. at 6.) However, he presents no specific facts to
support this claim or explain how counsel’s alleged failure resulted in prejudice.
Furthermore, it does not appear that he exhausted this general claim in state court.
(See Ans. Exs. E and J.) Accordingly, the Court will not address the merits of this
claim.
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
6
1
reasonableness” under prevailing professional norms. Strickland v. Washington,
2
466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by
3
counsel’s deficient performance, i.e., that “there is a reasonable probability that, but
4
for counsel’s unprofessional errors, the result of the proceeding would have been
5
different.” Id. at 694. A reasonable probability is a probability sufficient to
6
undermine confidence in the outcome. Id. A court need not determine whether
7
counsel’s performance was deficient before examining the prejudice suffered by the
8
defendant as the result of the alleged deficiencies. Id. at 697; Williams v. Calderon,
9
52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (applauding district court's refusal to
consider whether counsel's conduct was deficient after determining that petitioner
11
For the Northern District of California
United States District Court
10
could not establish prejudice), cert. denied, 516 U.S. 1124 (1996).
12
The Strickland framework for analyzing ineffective assistance of counsel
13
claims is considered to be “clearly established Federal law, as determined by the
14
Supreme Court of the United States” for the purposes of 28 U.S.C. § 2254(d)
15
analysis. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Williams (Terry)
16
v. Taylor, 529 U.S. 362, 404-08 (2000). A “doubly” deferential judicial review is
17
appropriate in analyzing ineffective assistance of counsel claims under § 2254. See
18
Pinholster, 131 S. Ct. at 1410-11; Harrington v. Richter, 131 S. Ct. 770, 788 (2011)
19
(same); Premo v. Moore, 131 S. Ct. 733, 740 (2011) (same). The general rule of
20
Strickland, i.e., to review a defense counsel’s effectiveness with great deference,
21
gives the state courts greater leeway in reasonably applying that rule, which in turn
22
“translates to a narrower range of decisions that are objectively unreasonable under
23
AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing
24
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d) applies, “the
25
question is not whether counsel’s actions were reasonable. The question is whether
26
there is any reasonable argument that counsel satisfied Strickland's deferential
27
standard.” Harrington, 131 S. Ct. at 788.
28
///
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
7
1
1.
Failure to Provide Letters in Support
2
Petitioner claims that counsel failed to discuss and provide the sentencing
3
court with letters from Petitioner and his family in support of a more lenient
4
sentence.3 (Pet. 6.) Respondent asserts that this claim is factually contradicted by
5
counsel’s declaration that she never received such letters, (Ans. Ex. K, Ex, A), and
6
that even if such letters had been provided to the sentencing court, it was not likely
7
that Petitioner would have received a lighter sentence.
8
Assuming Petitioner’s factual allegations are true and that he provided
have been different but for counsel’s failure to include them with her statement of
11
For the Northern District of California
counsel with such letters, it cannot be said that the result of the proceedings would
10
United States District Court
9
mitigation. Counsel presented a nine-page statement of mitigation on Petitioner’s
12
behalf, arguing that probation should be granted because this was an “unusual case”
13
under California Rules of Court, Rule 4.413(b). (Ans. Ex. C at 46.) Counsel argued
14
that Petitioner committed the November 24, 2004, offenses under “extreme
15
provocation and duress” because he believed that his son and his son’s mother were
16
in danger with the presence of a strange man in their home late at night. (Id.)
17
Counsel also emphasized Petitioner’s young age – he was only 24 years old at the
18
time – and that he had no significant record of prior criminal offenses other than two
19
convictions for non-violent property crimes. (Id.) Counsel argued that
20
imprisonment would adversely affect Petitioner and his two children, that
21
imprisonment would severely limit future employment, that Petitioner was
22
remorseful, and that the likelihood of him posing a danger to others was “extremely
23
slim” because the offenses arose out of a “unique set of circumstances, unlikely to
24
occur again.” (Id. at 47.) Counsel pointed out that Petitioner also exercised caution
25
to avoid harm to person or damage to property by aiming the gun low, that his past
26
record of criminal conduct was insignificant, and that Petitioner had successfully
27
28
3
Petitioner presented this claim in his state habeas petition, which was
summarily denied by the state appellate and high courts. (Ans. Exs. M & O.)
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
8
1
completed a grant of parole in 2002. (Id. at 49.) Counsel also urged the court to
2
consider that Petitioner had never received treatment for his drug abuse or anger
3
management issues. (Id. at 50.) This lengthy and detailed statement appears to
4
present a thorough argument that mitigating factors outweigh aggravating factors.
5
Nonetheless, assuming that counsel erred in failing to include the letters,
6
Respondent argues that Petitioner was not prejudiced by the failure because the
7
letters were not truly mitigating. (Ans. at 16.) Petitioner’s sister, Diana Morales,
8
wrote that Petitioner was a loving family member who “made a bad choice” and was
9
“paying for everything he chose to do.” (Ans. Ex. J at Ex. 2, Ex. A at 1.) She stated
that if Petitioner was given another chance, “he will not come back to this country
11
For the Northern District of California
United States District Court
10
he is planning to go to Mexico to get a job and just staying over there.” (Id.)
12
Petitioner’s cousin, Luz Enriquez, wrote that Petitioner had “made a mistake and is
13
paying for it,” and that she was praying and hoping that his sentence would be
14
reduced. (Id. at 3.) A friend named Juan Pierdant wrote that Petitioner was a “very
15
good boy” with a “very big, strong and united family”; he stated that Petitioner had
16
written letters sharing his experiences and “things that he has learned and his future
17
goals,” and that he is “someone you can trust again.” (Id. at 4.) Petitioner’s
18
nephew, Kevin Pierdant, wrote that he knew Petitioner had “made a mistake and
19
there are always consequences that you have to pay.” (Id. at 5.) Kevin also stated
20
that Petitioner continued to tell him “to not get in trouble and not to make mistakes
21
like he did.” (Id.) A letter and a card written by his daughter addressed to Petitioner
22
expressed affection for him. (Id. at 6-12.) Petitioner’s aunt, Maria Hernandez,
23
wrote that Petitioner was “not a bad person, he just made a bad choice” which he
24
regrets and accepts responsibility. (Id. at 12.) She stated that given a second
25
chance, Petitioner would return to Mexico to start a new life. (Id.) Lastly,
26
Petitioner’s cousin, Noemi Enriquez, wrote that Petitioner was a “very caring person
27
that deserves freedom and to spend time with his family and his children.” (Id. at
28
13.) Generally, these letters repeat assertions of Petitioner’s remorsefulness and his
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
9
1
good character. However, counsel had already discussed Petitioner’s remorsefulness
2
in her statement. See supra at 8. As to the testimonials regarding Petitioner’s good
3
character, Respondent argues that they were contradicted by his conduct in the
4
underlying convictions and therefore unlikely to have lowered his sentence. (Ans. at
5
12-13, citing People v. Burbine, 106 Cal.App.4th 1250, 1263 (2003) (favorable
6
letters do not support a reduced sentence where the “qualities spoken of in letters
7
were contradicted by defendant’s conduct in committing crimes”), and People v.
8
Charron, 193 Cal.App.3d 981, 994 (1987) (trial court did not err in rejecting letters
9
testifying to defendant’s good character as a mitigating factor when the qualities
discussed in the letters were contradicted by the defendant’s conduct in underlying
11
For the Northern District of California
United States District Court
10
convictions).)
12
Indeed, Petitioner’s conduct in the underlying convictions is clearly what
13
influenced the trial court the most as the judge highlighted the “violent nature of the
14
crime” and Petitioner’s “wanton disregard for human life” at the resentencing
15
hearing. (RT 9.) Furthermore, the 2009 probation report provided several
16
circumstances in aggravation under California Rules of Court, rule 4.421, which
17
undercut the factors set-forth by counsel in mitigation:
18
19
20
21
22
23
[Factor](a)(1): ...[T]he crime caused great bodily injury above and
beyond that needed to prove the applicable enhancement per
12022.7(a), as [Fent] suffered bullet wound injuries to both legs.
Further, we would note the assault was conducted with a degree of
callousness, in that while he self-disclosed during the prior probation
interview that he purportedly “aimed low” to avoid causing serious
injury, he still shot through a closed door, and therefore lacked the
ability to verify his intended target, with his girlfriend and their child
standing mere feet away. [Factor](b)(1): The [Petitioner] has
engaged in violent conduct which indicates a serious danger to
society. [Factor](b)(5): The [Petitioner]’s prior performance on
probation was unsatisfactory.
24
25
(Ans. Ex. C at 38.) The report also referred to the original sentencing report, which
26
remained applicable, wherein several of the other mitigating factors were
27
challenged:
28
While it appears that this elevation of criminal severity was a
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
10
1
2
3
4
5
gradual build up over the three separate incidents, his own accounts
hint at criminal conduct spanning almost a decade. His admitted
gang involvement and self reported history of methamphetamine
sales since he was a young teenager has gone relatively undetected;
however, at the somewhat youthful age of 24 the [Petitioner] has
already been convicted of two prior felony offenses and has served a
prison term. That he was discharged from parole without incident
would otherwise be a marked accomplishment, were it not for the
fact that he was also deported to another country the day after his
release from state prison.
6
7
8
9
11
For the Northern District of California
United States District Court
10
We view the [Petitioner] as a credible threat to society, given
his actions and total submersion within a criminal lifestyle and
mentality. The [Petitioner] ultimately chose to commit these acts,
and at any time could have desisted from such reckless behavior.
Although his claims of shooting the victim were to protect his
newborn child and ex-girlfriend, we note that it was these very
individuals he placed in harms way, as they were a mere five to eight
feet away when the [Petitioner] fired the bullets, blindly, through the
door.
12
13
(Ans. Ex. A at 472.)
Petitioner has failed to establish that he was prejudiced by counsel’s alleged
14
failure to include the letters in support of mitigation. The letters emphasized
15
Petitioner’s remorse and his good character, but the former had already been
16
presented by counsel as a mitigating factor and the latter was contradicted by
17
Petitioner’s conduct in the underlying crimes. Furthermore, the circumstances in
18
aggravation strongly outweighed – and in fact undercut – the mitigating factors.
19
Lastly, as Respondent points out, Petitioner did in fact obtain a lesser sentence on
20
remand: his original sentence was an indeterminate term of 35 years to life in prison,
21
and he was resentenced to a determinate term of 24 years and eight months. (Ans. at
22
13.) Based on this record, there is no reasonable probability that the inclusion of
23
the letters would have resulted in a different outcome. See Strickland, 466 U.S. at
24
694. Accordingly, the state court’s rejection of this claim was not contrary to, or an
25
unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d).
26
2.
27
Petitioner claims that his attorney provided ineffective assistance because she
28
Misstatement That Sentence Enhancements Were Mandatory
erroneously informed the trial court that certain sentence enhancement were
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
11
1
mandatory when in fact the court had the discretion to strike them. (Pet. 6.)
2
Respondent asserts that this claim also fails because Petitioner cannot show that he
3
was prejudiced by counsel’s error.
4
On appeal, Petitioner challenged his convictions for shooting at an inhabited
5
dwelling (count X) and for child endangerment (count VII). The California Court of
6
Appeal reversed Petitioner’s convictions for shooting an inhabited dwelling and
7
affirmed the judgment in all other respects. At Petitioner’s original sentencing, the
8
trial court stayed two on-bail sentence enhancements found true in connection with
9
counts seven and nine. (Ans. Ex. A at 415.) At the resentencing hearing on remand,
the trial court imposed the two on-bail sentence enhancements. (RT 10-11.)
11
For the Northern District of California
United States District Court
10
Petitioner appealed the imposition of the two on-bail enhancements, claiming
12
the trial court failed to exercise its discretion on whether to strike them. (Ans. Ex. E
13
at 15.) He also claimed counsel was ineffective for characterizing the enhancements
14
as mandatory and urged that but for counsel’s deficient performance, there was a
15
reasonable probability that he would have received a lesser sentence. (Id. at 22-23.)
16
The Court of Appeal rejected this claim, finding there was no indication that
17
18
19
20
21
22
23
24
the trial court was unaware of its discretion to strike the on-bail enhancements:
The trial court imposed two out-on-bail enhancements
pursuant to section 12022.1. That statute provides in pertinent part:
“Any person arrested for a secondary offense which was alleged to
have been committed while that person was released from custody
on a primary offense shall be subject to a penalty enhancement of an
additional two years in state prison which shall be served
consecutive to any other term imposed by the court.” (§ 12022.1,
subd. (b).) Despite this general mandatory language, the trial court
retains discretion to strike or dismiss the enhancement or the
additional punishment under section 1385. (People v. Meloney
(2003) 30 Cal.4th 1145, 1155.) [Petitioner] contends the trial court
did not understand that it had discretion to strike the enhancements,
and that his counsel’s failure to ask the trial court to do so deprived
him of effective assistance of counsel.
25
26
27
28
When [Petitioner] was originally sentenced, the prosecutor
noted that the trial court had found [Petitioner] committed the two
November 2004, offense while on bail. The trial court responded,
“Let me say I’m going to suspend any sentence on the out-on-bail
enhancement,” and the court minutes indicated that two two-year
enhancements were stayed.
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
12
1
2
3
4
5
6
7
8
9
11
For the Northern District of California
United States District Court
10
12
The same judge presided after we remanded the matter to the
trial court for resentencing. At a hearing after remand, the
prosecutor requested and received a continuance on the ground that
the presentence report failed to take into consideration the section
12022.1 enhancements. The People’s subsequent resentencing brief
noted that the trial court had found two sections 12022.1 out-on-bail
enhancements to be true, and went on: “The sentencing report does
not consider the enhancements as it should. Accordingly, the
[Petitioner]’s aggregate term sentence should be increased four
years.” [Petitioner]’s statement in mitigation addressed the issue by
stating: “The defense does not dispute the prosecution’s contention
that probation’s updated sentencing report... neglected to address the
two ‘out-on-bail’ enhancements per Penal Code § 12022.1. Because
these sentencing provisions are mandatory, the defense has no
further comment on them.” (Italics added.) A revised memorandum
prepared by the probation department for resentencing indicated that
two section 12022.1 enhancements were found true by the court, but
not originally imposed, and went on: “There do not appear to be any
factors that would otherwise limit the Court from imposing said
enhancements at the present time.” During the sentencing hearing,
the prosecutor noted that the revised probation report “consider[ed]
the 12022.1 out-on-bail enhancements.” [FN8] Without commenting
on its reasons for doing so, the trial court imposed out-on-bail
enhancements in connection with counts VII and IX.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FN8. The prosecutor had first argued against staying sentence
on the three convictions under section 12021, possession of
the firearm by a felon, and continued: “So we’re hoping the
court will not 654 the 12021 counts and the revised probation
report goes ahead and considers the 12022.1 out-on-bail
enhancements.”
[Petitioner]’s argument that the trial court mistakenly believed
it did not have discretion to strike the out-on-bail enhancement is
based on his counsel’s statement that the sentencing provisions were
mandatory. Despite this statement, the record as a whole does not
persuade us that the trial court was unaware of its discretion to strike
the section 12022.1 enhancements. The judge who presided over
[Petitioner]’s resentencing also imposed the original sentence, and
suspended sentence on the enhancements. Neither the revised
probation report nor the prosecutor argued that the enhancements
were mandatory, and the trial court gave no indication that it
believed it was required to impose the sentence enhancements.
It is will established that “a trial court is presumed to have
been aware of and followed the applicable law.” (People v. Mosley
(1997) 53 Cal.App.4th 489, 496 (Mosley)), and that “‘[a] judgment
or order of the lower court is presumed correct... and error must be
affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) “These general rules concerning the presumption of
regularity of judicial exercises of discretion apply to sentencing
issues.” (Mosley, supra, 53 Cal.App.4th at p. 496; see also People v.
Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[W]e cannot presume
error where the record does not establish on its face that the trial
court misunderstood the scope of [its sentencing] discretion.”].) This
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
13
1
record does not show that the court misunderstood the scope of its
discretion. We will not presume it did so.
2
Because we reach this conclusion, we reject [Petitioner]’s
contention that the judgment should be reversed because his counsel
was ineffective in failing to recognize that the trial court had
discretion to strike the section 12022.1 enhancements and in failing
to urge the trial court to do so.
3
4
5
6
(Ans. Ex. G at 5-8.)
7
Petitioner’s claim is without merit. As discussed by the state appellate court,
8
the record does not indicate that the trial court erroneously relied on appointed
9
counsel’s misstatement that the out-on-bail enhancement was mandatory in
imposing the enhancement sentences. First of all, the trial judge was the same judge
11
For the Northern District of California
United States District Court
10
who imposed Petitioner’s original sentence, in which the same enhancements had
12
been stayed; he was clearly aware in the first instance that it was in his discretion to
13
do so. See supra at 8. Furthermore, neither the prosecutor nor the probation report
14
indicated that the sentence enhancement was mandatory. Rather, the report stated
15
that “[t]here do not appear to be any factors that would otherwise limit the Court
16
from imposing said enhancements at the present time,” which indicated that
17
imposition was a discretionary matter. See supra at 13. The same is implied by the
18
prosecutor’s statement “we’re hoping the court... goes ahead and considers the
19
12022.1 out-on-bail enhancements.” Id. It is not likely that the trial judge would
20
rely solely on defense counsel’s misstatement regarding mandatory sentencing in
21
light of indications to the contrary from the probation report and the prosecutor,
22
especially since the latter had a greater interest in a higher sentence. Petitioner has
23
failed to show that but for counsel’s deficient performance, it was reasonably
24
probable that the proceedings would have been different. Strickland, 466 U.S. at
25
694. Accordingly, the state court’s rejection of this claim was not contrary to, or an
26
unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d).
27
///
28
///
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
14
1
2
3
4
CONCLUSION
After a careful review of the record and pertinent law, the Court concludes
that the Petition for a Writ of Habeas Corpus must be DENIED.
Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the
5
Rules Governing Section 2254 Cases. Petitioner has not made “a substantial
6
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has
7
Petitioner demonstrated that “reasonable jurists would find the district court’s
8
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
9
529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of
Appealability in this Court but may seek a certificate from the Court of Appeals
11
For the Northern District of California
United States District Court
10
under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the
12
Rules Governing Section 2254 Cases.
13
14
15
The Clerk shall terminate any pending motions, enter judgment in favor of
Respondent, and close the file.
IT IS SO ORDERED.
16
17
DATED:
7/18/2014
EDWARD J. DAVILA
United States District Judge
18
19
20
21
22
23
24
25
26
27
28
Order Denying Petition; Denying COA
P:\PRO-SE\EJD\HC.11\06656Morales_denyHC.wpd
15
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
JUAN JOSE MORALES,
Case Number: CV11-06656 EJD
Petitioner,
CERTIFICATE OF SERVICE
v.
P. D. BRAZELTON, Warden,
Respondent.
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
7/18/2014
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.
Juan Jose Morales F44043
Pleasant Valley State Prison
P.O. Box 8500
Coalinga, CA 93210
Dated:
7/18/2014
Richard W. Wieking, Clerk
Elizabeth Garcia, Deputy Clerk
/s/ By:
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?