Ward v. McDowell

Filing 19

REPORT AND RECOMMENDATION of United States Magistrate Judge Re: Petition 1 Petition for Writ of Habeas Corpus. IT IS HEREBY RECOMMENDED that the District Judge issue an Order: (1) approving and adopting this Report and Recommendation, and (2) dire cting that Judgment be entered DENYING the Petition. No later than June 14, 2017, any party to this action may file written objections with this Court and serve a copy on all parties. Any reply to the objections shall be filed with the Court and served on all parties no later than June 21, 2017. Signed by Magistrate Judge Mitchell D. Dembin on 5/23/2017.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TROY D. WARD,

Case No.: 16cv3055-DMS-MDD
Petitioner,

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v.

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NEIL McDOWELL, Warden,
Respondent.

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: PETITION FOR WRIT OF
HABEAS CORPUS
[ECF No. 1]

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I.

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INTRODUCTION

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This Report and Recommendation is submitted to United States

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District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local

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Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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Troy D. Ward (“Petitioner”), a state prisoner proceeding pro se and in

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forma pauperis, seeks federal habeas relief from convictions for one count of

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first-degree burglary (Cal. Penal Code § 459), two counts of assault by means

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of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(4)), one

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count of corporal injury to a former cohabitant or spouse (Cal. Penal Code
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§ 273.5(a)) and one count of vandalism under $400 (Cal. Penal Code §594(a)).

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(ECF Nos. 1, 4); (Lodg. Nos. 3-2 at 312-15; 8 at 2). After reviewing the

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Petition [ECF No. 1], Respondent’s Answer and Memorandum of Points and

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Authorities in support thereof (“Answer”) [ECF No. 10], Respondent’s

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Supplemental Response to the Petition [ECF No. 15] and pertinent state

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court lodgments, the Court RECOMMENDS Petitioner’s federal Petition for

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Writ of Habeas Corpus be DENIED.
II.

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A.

FACTUAL BACKGROUND

State Proceedings
“[A] determination of a factual issue made by a State court shall be

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presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden

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of rebutting the presumption of correctness by clear and convincing

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evidence.” Id.; see Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997)

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overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (stating

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that federal courts are required to “give great deference to the state court’s

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factual findings.”). Accordingly, the following facts are taken from the

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California Court of Appeal’s November 20, 2014, opinion in People v. Troy D.

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Ward, Appeal No. D064330. (See Lodg. No. 8).

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A. Relationship Between Buganan and [Petitioner]
Buganan and [Petitioner] were involved in a dating
relationship starting in 2009. The relationship was tumultuous,
and they broke up but resumed dating over the years. During one
period of separation in 2010, [Petitioner] was sentenced to state
prison and served time after he was convicted of committing
domestic violence against Buganan, who continued to visit
[Petitioner] while he was incarcerated, however, because she hoped
they could work out their problems and resume a romantic
relationship. When [Petitioner] was released from prison in the fall
of 2011, Buganan picked him up from the prison and took him to
her house and was intimate with him that night. They resumed
their dating relationship during the next nine months, and he
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moved into Buganan’s mobile home in the spring of 2012.

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B. The Charged Offenses
About one month after [Petitioner] moved into Buganan’s
home, she ended their relationship and told him to take his
possessions and move out. She told [Petitioner] she would put his
possessions on the back porch for him to pick up and [Petitioner]
said he would return to retrieve them. She put his possessions on
the porch and, after about one week, he retrieved them. Buganan
told [Petitioner] not to come to her house any more. However,
[Petitioner] continued to come to her home. Buganan believed he
entered the mobile home when she was not there, and also believed
he was responsible for using an external water lever to turn off the
water to the mobile home on several occasions.

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Buganan began a romantic relationship with Williams around
the time she told [Petitioner] to move out in 2011. On a couple of
occasions, she dropped Williams off so he could go inside her mobile
home while she parked her car, and [Petitioner] approached
Buganan and told her to have “that punk” (referring to Williams)
come outside. On the evening of May 3, 2012, Buganan and
Williams were at the mobile home when Buganan realized the
water to the mobile home had again been shut off, and she
suspected [Petitioner] was responsible. She went to a sliding glass
door in the bedroom, carrying a small flashlight, to look outside for
[Petitioner]. Buganan put her eye up to the window to look out and
[Petitioner], standing just outside the door holding a hammer,
immediately struck the door and the glass shattered. Glass flew
into Buganan’s eye and [Petitioner] immediately entered.
Buganan tried to escape from the bedroom into the hallway
but [Petitioner] stopped her by grabbing her and shoving her into
the corner of the room with such force that it caused bruising to
(and scratches on) her chest. He then put both hands around her
neck to choke her.
Williams, who heard the glass shatter and Buganan scream,
rushed into the bedroom. He saw [Petitioner] holding Buganan by
the neck against the wall. [Petitioner] released Buganan and
turned on Williams who, realizing [Petitioner] was about to turn on
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him, told Buganan to leave. [Petitioner] grabbed Williams and the
two men began wrestling while Buganan ran outside to summon
help.
Williams testified the two men began wrestling and
[Petitioner] lifted Williams completely off his feet and threw him
through the shattered glass door. Williams landed outside and
jumped to avoid landing on an electrical box but ended up landing
on his head and neck area. He got up as [Petitioner] pursued him
through the door. [Petitioner] punched him several times in the
face and chest as he tried to fight back. The men grappled and
crashed through a neighbor’s fence, knocking it down. They both
got up, continuing to wrestle and throw punches, and [Petitioner]
threw Williams against a shed. The fight continued and they ended
on Buganan’s car, with [Petitioner] on top. However, Williams
continued to fight back and [Petitioner] started to flee. Williams
caught and tried to hold him until the sheriff arrived, but
[Petitioner] was able to pull away from Williams and run off. The
fight lasted between five and 10 minutes.
A deputy sheriff responding to the scene found Buganan
screaming and crying uncontrollably. The deputy also saw
Williams, who was naked, had sustained a cut near his left eye
around the temple area. He also suffered a cut to his leg caused by
the glass when he was fighting [Petitioner] on the ground, a “big
cut” to his thigh, and cuts on his head, back and left side of his eye.
Approximately one week later, [Petitioner] was found near the
mobile home park and arrested.
C. [Petitioner’s] Prior Domestic Violence Against Buganan
During one of their periods of separation, [Petitioner]
borrowed Buganan’s car to go to a medical appointment. When
Buganan could not locate [Petitioner] at the place of the
appointment, she (accompanied by her friends Sherri and Elizabeth
Rodriguez) went to [Petitioner’s] workplace to get her car.
[Petitioner] opened the gate to allow Buganan and Elizabeth onto
the property while Sherri remained in Buganan’s truck. However,
[Petitioner] was apparently angry at Buganan and, after Elizabeth
went back out the gate, [Petitioner] closed the gate with Buganan
still inside, and began assaulting her. He struck her and knocked
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her down several times, and threatened to kill her. Sheri [sic] and
Elizabeth demanded [Petitioner] stop and he let Buganan go, and
she started walking back to her truck. However, he followed her
and continued to grab her and knock her down. When she reached
the truck, he grabbed the chain around her neck as though he was
going to choke her. He then stopped the assault and walked back
inside the gate.
Buganan walked down the gravel road to locate Elizabeth,
who had gone to find help. Buganan heard Sherri yell, “Run. He’s
coming down with the car,” and they saw [Petitioner] driving
toward Buganan “pretty fast.” Buganan, fearing [Petitioner] would
hit her with the car, first tried to seek shelter in a passerby’s
vehicle, but when the passerby drove off, she ran behind a tree and
then behind a fence of another residential property. [Petitioner]
drove toward her at the fence, coming within a few feet or inches.
Buganan obtained assistance by calling an ambulance from a
nearby house and was treated at the hospital for her injuries for
several hours.
When she testified at his criminal proceedings for the 2010
assault, she was not completely honest because she thought they
could work out their relationship, and because she was scared he
might hurt her when he was released from prison. Similar reasons
led her to discount [Petitioner’s] actions when she spoke with
personnel at the district attorney’s office in connection with the
original 2010 case.
D. Defense
[Petitioner] testified on his own behalf. At Buganan’s
invitation, he went to her mobile home on May 3 to collect his
belongings. Buganan invited him inside and told him his property
was in the master bedroom but, when he went to the bedroom, she
tried to touch and hug him. He resisted her advances but he then
heard the front door open and Williams came inside the mobile
home, entered the bedroom, and assaulted [Petitioner]. They
wrestled and crashed through the glass door and, after a few
minutes of fighting, [Petitioner] left because he was violating his
parole by being at Buganan’s home.

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(Lodg. No. 8 at 3-7).
A jury convicted Petitioner of one count of first-degree burglary, two

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counts of assault by means of force likely to produce great bodily injury

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involving Buganan and Williams, one count of corporal injury to a former

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cohabitant or spouse and vandalism under $400. (Id. at 2). The Court found

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true the special allegations that Petitioner had a prior conviction, suffered

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two prior strike convictions, served three prior prison terms and had two

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prior serious felony convictions. (Id.). The Court sentenced Petitioner to a

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term of 35 years to life. (Id.).

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Petitioner appealed from the trial court’s judgment, raising seven

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issues: (1) there was insufficient evidence to support his convictions for

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assault against Buganan and Williams; (2) there was insufficient evidence to

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support a burglary conviction; (3) the trial court abused its discretion by

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denying Petitioner’s request to have Buganan’s ex-boyfriend testify; (4) the

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trial court abused its discretion by admitting evidence of the conviction for

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the 2010 incident; (5) the trial court abused its discretion when it denied

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Petitioner’s motion to dismiss a prior strike conviction under People v.

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Superior Court (Romero), 13 Cal. 4th 497 (1996) (“Romero”); (6) the trial court

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erred when it sentenced Petitioner to concurrent terms on counts two and

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four instead of staying the sentences on those counts; and (7) the court

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miscalculated his custody credits. (Lodg. No. 5 at 19-67). The Court of

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Appeal modified Petitioner’s sentence by staying count two pending

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successful service of the balance of Petitioner’s sentence, at which time the

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stay will become permanent, and amended Petitioner’s sentence to reflect

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that he is entitled to 388 days of custody credits. (Lodg. No. 8 at 29). The

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Court of Appeal otherwise affirmed the judgment. (Id.).

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On December 30, 2014, Petitioner petitioned the California Supreme
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Court for review of the Court of Appeal’s November 20, 2014, opinion. (Lodg.

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No. 9). Petitioner raised four issues: (1) there was insufficient evidence to

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support his convictions for assault against Buganan and Williams; (2) the

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trial court abused its discretion by denying Petitioner’s request to have

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Buganan’s ex-boyfriend testify; (3) the trial court abused its discretion by

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admitting evidence of the conviction for the 2010 incident; and (4) the trial

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court abused its discretion when it denied Petitioner’s motion to dismiss a

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prior strike conviction under Romero. (Id. at 10-41). On February 11, 2015,

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the California Supreme Court denied the petition for review. (Lodg. No. 10).

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On January 14, 2016, Petitioner signed a petition for writ of habeas

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corpus in the San Diego County Superior Court. (Lodg. No. 11). Petitioner

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challenged his convictions on the grounds that Petitioner received ineffective

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assistance of counsel. (Id. at 3-8). On May 21, 2016, the San Diego County

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Superior Court denied the petition on the merits. (Lodg. No. 12 at 4).

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On May 31, 2016, Petitioner filed a state habeas petition in the

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California Court of Appeal, arguing that: (1) his counsel, parole officer and

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Buganan “misled” him about staying away from Buganan and her mobile

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home; (2) there was no burglary because he lived in the mobile home; (3) the

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trial court should have dismissed one or both of his strike convictions; (4) he

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never had any weapons and was defending himself; and (5) the prosecutor

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mixed up the 2012 facts with the 2010 facts. (See Lodg. No. 13). The

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California Court of Appeal denied the petition as untimely, because

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Petitioner’s arguments were raised and rejected on appeal and because

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Petitioner’s claims are not cognizable in a habeas corpus proceeding. (Lodg.

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No. 14 at 2).

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On July 6, 2016, Petitioner signed a petition for writ of habeas corpus in
the California Supreme Court, raising the same issues as his California
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Court of Appeal petition. (See Lodg. Nos. 13, 15). On September 14, 2016,

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the California Supreme Court denied the petition. (Lodg. No. 16).

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B.

Federal Proceedings

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On December 12, 2016, the date of his signature, Petitioner filed a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court.

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(ECF No. 1). Petitioner raises five grounds for relief: (1) there was

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insufficient evidence to support his conviction for first-degree burglary; (2)

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there was insufficient evidence to convict Petitioner of assault by means of

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force likely to produce great bodily injury upon Williams and Buganan; (3)

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the trial court erred when it excluded the testimony of Buganan’s ex-

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boyfriend; (4) the trial court abused its discretion in admitting facts from

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Petitioner’s 2010 conviction; and (5) the trial court abused its discretion in

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failing to strike one or both of Petitioner’s prior strike convictions. (Id. at 6-

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10).
On March 14, 2017, Respondent filed an Answer, which addressed only

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four of Petitioner’s grounds for relief.1 (ECF No. 10). On March 30, 2017,

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this Court ordered Respondent to file a supplemental response to the Petition

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addressing ground five. (ECF No. 30). On April 3, 2017, Respondent filed a

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supplemental response. (ECF No. 15). Petitioner did not file a traverse. (See

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Docket).

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III. STANDARD OF REVIEW

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This Petition is governed by the provisions of the Antiterrorism and

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Respondent’s Answer was initially filed with a Motion for Leave to File
Excess Pages on March 14, 2017. (ECF No. 8). The Court granted
Respondent’s motion and ordered the Clerk of Court to file Respondent’s
Answer as a separate docket entry. (ECF No. 9). The Clerk of Court filed the
Answer on March 15, 2017. (See ECF No. 10).
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Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh, 521 U.S. 320.

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Title 28, U.S.C. § 2254(a) provides the scope of review for federal habeas

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corpus claims:

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The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.

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Under AEDPA, a habeas petition will not be granted with respect to any

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claim adjudicated on the merits by the state court unless that adjudication:

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(1) resulted in a decision that was contrary to, or involved an unreasonable

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application of clearly established federal law; or (2) resulted in a decision that

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

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evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early

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v. Packer, 537 U.S. 3, 7-8 (2002).

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Clearly established federal law “refers to the holdings, as opposed to the

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dicta, of [the United States Supreme] Court’s decisions . . . .” Williams v.

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Taylor, 529 U.S. 362, 412 (2000). A state court’s decision may be “contrary

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to” clearly established Supreme Court precedent “if the state court applies a

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rule that contradicts the governing law set forth in [the Court’s] cases” or “if

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the state court confronts a set of facts that are materially indistinguishable

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from a decision of [the] Court and nevertheless arrives at a result different

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from [the Court’s] precedent.” Id. at 405-06. A state court decision does not

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have to demonstrate an awareness of clearly established Supreme Court

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precedent, provided neither the reasoning nor the result of the state court

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decision contradict such precedent. Early, 537 U.S. at 8.

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A state court decision involves an “unreasonable application” of
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Supreme Court precedent “if the state court identifies the correct governing

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legal rule from this Court’s cases but unreasonably applies it to the facts of

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the particular state prisoner’s case.” Williams, 529 U.S. at 407. An

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unreasonable application may also be found “if the state court either

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unreasonably extends a legal principle from [Supreme Court] precedent to a

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new context where it should not apply or unreasonably refuses to extend that

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principle to a new context where it should apply.” Id.; Wiggins v. Smith, 539

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U.S. 510, 520 (2003); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).

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Relief under the “unreasonable application” clause of § 2254(d) is

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available “if, and only if, it is so obvious that a clearly established rule applies

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to a given set of facts that there could be no ‘fairminded disagreement’ on the

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question.” White v. Woodall, 134 S.Ct. 1697, 1706-07 (2014) (quoting

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Harrington v. Richter, 562 U.S. 86, 103 (2011)). An unreasonable application

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of federal law requires the state court decision to be more than incorrect or

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erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, the state

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court’s application must be “objectively unreasonable.” Id.; Miller-El v.

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Cockrell, 537 U.S. 322, 340 (2003). Even if a petitioner can satisfy § 2254(d),

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the petitioner must still demonstrate a constitutional violation. Fry v. Pliler,

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551 U.S. 112, 119-22 (2007).

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Federal courts review the last reasoned decision from the state courts.

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See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991); Hibbler v. Benedetti,

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693 F.3d 1140, 1146 (9th Cir. 2012). In deciding a state prisoner’s habeas

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petition, a federal court is not called upon to decide whether it agrees with

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the state court’s determination; rather, the court applies an extraordinarily

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deferential review, inquiring only whether the state court’s decision was

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objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003);

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Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). The petitioner must
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establish that “the state court’s ruling on the claim being presented in federal

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court was so lacking in justification that there was an error . . . beyond any

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possibility for fairminded disagreement. . . .” Burt v. Titlow, 134 S.Ct. 10, 12

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(2013) (internal citation omitted). It is not within a federal habeas court’s

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province “to reexamine state court determinations on state-law questions. . .

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.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).
IV.

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A.

DISCUSSION

Claims 1 and 2: Insufficient Evidence

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In claim 1, Petitioner argues that there is insufficient evidence to

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support his conviction of first-degree burglary. (ECF No. 1 at 6). In claim 2,

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Petitioner asserts that there was insufficient evidence to prove he assaulted

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Williams and Buganan with force likely to produce great bodily injury. (Id.

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at 7).

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1.

Legal Standard

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The Fourteenth Amendment’s Due Process Clause protects criminal

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defendants from convictions “except upon proof beyond a reasonable doubt of

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every fact necessary to constitute the crime with which he is charged.” In re

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Winship, 397 U.S. 358, 364 (1970). In a federal habeas proceeding, a

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petitioner challenging the sufficiency of the evidence may obtain relief only if

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“it is found that upon the record evidence adduced at the trial no rational

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trier of fact could have found proof of guilt beyond a reasonable doubt.”

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Jackson v. Virginia, 443 U.S. 307, 324 (1979). “[T]he relevant question is

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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

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of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). A

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reversal for insufficiency of the evidence is essentially a “determination that

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the government’s case against the defendant was so lacking that the trial
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court should have entered a judgment of acquittal.” McDaniel v. Brown, 558

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U.S. 120, 131 (2010) (quoting Lockhart v. Nelson, 488 U.S. 33, 39 (1988))

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(internal quotations omitted).

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It is the jury’s responsibility “to decide what conclusions should be

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drawn from evidence admitted at trial” and a reviewing court can overrule a

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jury verdict on the ground of insufficient evidence only if no rational trier of

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fact could have agreed with the jury. Cavazos v. Smith, 565 U.S. 1, 2 (2011)

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(per curiam). “The reviewing court must respect the exclusive province of the

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fact finder to determine the credibility of witnesses, resolve evidentiary

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conflicts, and draw reasonable inferences from proven facts” by assuming

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that the jury resolved all conflicts in support of the verdict. United States v.

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Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996); Walters v. Maass, 45 F.3d 1355,

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1358 (9th Cir. 1995). If the record supports conflicting inferences, the court

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“must presume – even if it does not affirmatively appear in the record – that

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the trier of fact resolved any such conflicts in favor of the prosecution, and

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must defer to that resolution.” Jackson, 443 U.S. at 326.

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The court applies the standard with specific reference to the applicable

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state law defining the elements of the crime at issue. Id. at 324 n.16; see also

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Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). The

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reviewing court also applies “an additional layer of deference” under AEDPA:

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habeas relief is not warranted unless “the state court’s application of the

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Jackson standard [was] ‘objectively unreasonable.’” Juan H. v. Allen, 408

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F.3d 1262, 1274-75 n.13 (9th Cir. 2005) (as amended) (citation omitted); see

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Cavazos, 565 U.S. at 2 (“[A] federal court may not overturn a state court

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decision rejecting a sufficiency of the evidence challenge simply because the

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federal court disagrees with the state court. The federal court instead may do

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so only if the state court decision was ‘objectively unreasonable.’”) (internal
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citation omitted).

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2.

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Petitioner presented both insufficient evidence of assault claims to the

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state appellate and supreme courts on direct review. (Lodg. Nos. 5, 9). The

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appellate court denied Petitioner’s claim on the merits and the California

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Supreme Court summarily denied the petition without a statement of

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reasoning or citation to authority. (Lodg. Nos. 8, 10). Accordingly, this Court

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must “look through” to the state appellate court’s opinion denying the claim

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as the basis for authority. Ylst, 501 U.S. at 805-06. That court wrote:

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Assault

Count Four: The Assault on Williams
[Petitioner] argues there was no evidence he assaulted
Williams with force likely to cause great bodily injury because he
only threw Williams through a glass door, the glass of which was
already broken, and then grappled with and punched Williams, who
sustained only minor injuries. However, the jury was entitled to
consider that [Petitioner] was apparently much larger than
Williams [because the jury saw both men at trial and heard the 911
call from Buganan including her description that Petitioner was
five inches taller and 90 pounds heavier than Williams] and was
able to lift him completely off his feet when he threw him through
the shattered glass door, and that Williams landed on his head and
neck area in an area littered with broken glass, and only
fortuitously avoided substantial injury by twisting to avoid landing
on an electrical box. This evidence would permit a jury to infer that,
although Williams in fact avoided more significant injury,
[Petitioner] did apply force likely to cause great bodily injury.
Moreover, a jury was entitled to consider that [Petitioner], with his
considerable size advantage, punched Williams several times in the
face and chest and threw him against a shed, and that the fight was
so fierce they crashed through and knocked down a neighbor’s
fence. A rational trier of fact could conclude that, although
William’s injuries were not more significant, [Petitioner]
nevertheless did apply force likely to cause great bodily injury.

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Count Three: The Assault on Buganan
[Petitioner] asserts there is no evidence from which a jury
could have concluded he assaulted Buganan with force likely to
cause great bodily injury. However, there was some evidence from
which the jury could have inferred [Petitioner] “knew . . . that he
used an amount of force a reasonable person would realize was
likely to result in great bodily injury,” or that he “act[ed] with
awareness of facts that would lead a reasonable person to realize
that great bodily injury would directly, naturally, and probably
result from his act.” Buganan testified she went to a sliding glass
door in the bedroom carrying a small flashlight to look outside for
[Petitioner] and, when she put her eye up to the window to look out,
[Petitioner] used his hammer to strike the door and shatter the
glass adjacent to her eye, and that glass flew into her eye. A
reasonable jury could have inferred, from the fact that it was dark
outside where [Petitioner] stood but illuminated inside when
Buganan placed her face against the glass door to peer out, that
[Petitioner] was within arm’s length of the window and would have
seen Buganan approach and place her eye next to the window but
[Petitioner] nevertheless swung the hammer to shatter the glass
into her face. A reasonable jury could infer [Petitioner] thus used
an amount of force “a reasonable person would realize was likely to
result in great bodily injury” or, at a minimum, acted “with
awareness of facts that would lead a reasonable person to realize
that great bodily injury would directly, naturally, and probably
result from his act.”

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Although the foregoing evidence would suffice to support the
conviction, there was also evidence [Petitioner] thereafter
continued his assault on Buganan and employed force likely to
result in great bodily injury: [Petitioner] shoved her with such force
that it caused bruising to (and scratches on) her chest and put both
hands around her neck to choke her. A rational jury could conclude
that commencing to cut off Buganan’s air supply was an application
of force likely to cause great bodily injury, and would have in fact
caused great bodily injury but for the fortuity that Williams
interrupted [Petitioner’s] attack on Buganan.

19
20
21
22
23
24
25
26

(Lodg. No. 8 at 9-11) (internal citations and footnotes omitted).

27

//
14
16cv3055-DMS-MDD

1

a.

Summary of Arguments

2

Petitioner argues there was insufficient evidence to convict him of

3

assault against Buganan because “there was no evidence that any force

4

would be expected to be applied to Buganan from the breaking of the door”

5

and that “grabbing Buganan by the shoulders and pushing her into a corner

6

was not force likely to produce great bodily injury.” (ECF No. 1 at 6).

7

Petitioner argues there was insufficient evidence of assault upon Williams

8

because they were in a “man-to-man” fight and Williams sustained only

9

minor injuries. (Id. at 52-55).

10

Respondent contends there was sufficient evidence to convict Petitioner

11

of the assaults against Buganan and Williams because “California Penal

12

Code § 245 prohibits an assault by means of force likely to produce great

13

bodily injury, not the use of force which does in fact produce such injury.”

14

(ECF No. 10-1 at 34-37). Thus, the jury could rationally infer that Petitioner

15

applied force likely to cause great bodily injury when he used a hammer to

16

shatter the sliding glass door adjacent to Buganan’s eye. (Id. at 36). Further,

17

a rational jury could conclude the requisite force was used against Buganan

18

when Petitioner shoved her into a wall, causing bruising to, and scratches on,

19

her chest and put his hands around her neck to choke her. (Id.). Respondent

20

asserts that a reasonable jury could also conclude that Petitioner applied

21

force likely to cause great bodily injury upon Williams when Petitioner threw

22

him through a glass door, punched him several times, threw him against a

23

shed, and fought him so fiercely that they crashed through and knocked down

24

a fence. (Id. at 35).

25
26
27

b.

Analysis

California Penal Code § 245(a)(4) punishes “[a]ny person who commits
an assault upon the person of another by any means of force likely to produce
15
16cv3055-DMS-MDD

1
2
3
4
5

great bodily injury . . . .”
An assault by means of force likely to produce great bodily injury,
is an assault, as to which the force essential to all assaults is of such
a nature or degree that the probable result of its application will be
the infliction of great bodily injury . . . . Great bodily injury is bodily
injury which is significant or substantial, not insignificant, trivial
or moderate.

6
7

People v. Covino, 100 Cal. App. 3d 660, 668 (1980) (internal citations

8

omitted). The use of hands or fists alone may support a conviction of assault

9

by means of force likely to produce great bodily injury and actual bodily

10

injury is not a required element of the crime. People v. Aguilar, 16 Cal. 4th

11

1023, 1028, 1036 n.9 (1997); Covino, 100 Cal. App. 3d at 667 (finding that the

12

determinative issue is not whether the defendant inflicted serious injury, but

13

whether the force used by defendant was such that it would be likely to cause

14

the injury).

15
16

i.

The Assault on Buganan

Buganan testified that she suspected Petitioner turned off the water to

17

her mobile home and was still on the premises. (Lodg. No. 1-3 at 139). She

18

held a flashlight up to the sliding glass door in her master bedroom and put

19

her eyes up to the window to see if Petitioner was outside. (Id. at 139-40). At

20

that moment, Petitioner broke the sliding glass door with a hammer and

21

“flew” into the master bedroom. (Id. at 140). Some of the shattered glass got

22

into Buganan’s eyes. (Id. at 149, 155). Buganan tried to get out of the

23

bedroom, but Petitioner grabbed her on the top of her chest, pushed her into

24

the corner and then put both his hands around her neck and began choking

25

her. (Id. at 141). Buganan sustained bruising on the left side of her eye,

26

bruising around her chest, scratches from being pushed into the wall and had

27

glass stuck in both eyes. (Id. at 155-56). Petitioner testified that he did not
16
16cv3055-DMS-MDD

1

use a hammer to break the sliding glass door and did not harm Buganan.

2

(See Lodg. No. 1-5 at 450-69).

3

The jury determined that Buganan’s testimony was more credible than

4

Petitioner’s testimony. The evidence established that Petitioner shattered

5

the sliding glass door, propelling glass into Buganan’s eyes, then grabbed her

6

chest and pushed her into a corner with sufficient force to cause bruising and

7

then began to choke her. Based on this evidence, the California Court of

8

Appeal reasonably concluded there was sufficient evidence for a jury to

9

convict Petitioner of assault with force likely to cause great bodily injury. See

10

Aguilar, 16 Cal. 4th at 1028 (explaining that the focus is on force likely to

11

produce great bodily injury); see also People v. Armstrong, 8 Cal. App. 4th

12

1060, 1065 (1992) (stating that the victim does not have to actually suffer

13

great bodily injury); Ross v. Hense, No. CV 07-6232 R(AJW), 2009 WL

14

322146, at *5 (C.D. Cal. Feb. 3, 2009) (finding the state court’s determination

15

that pushing the victim down and wrestling with the victim where the victim

16

sustained bruises and scratches provided sufficient evidence of force likely to

17

cause great bodily harm and was not unreasonable under AEDPA deference).

18
19

ii.

The Assault on Williams

Williams testified that he went to the master bedroom to help Buganan

20

after he heard glass shattering and Buganan screaming. (Lodg. No. 1-4 at

21

257). Williams told Buganan to leave and Petitioner and Williams began to

22

wrestle. (Id. at 259). Petitioner picked Williams off the ground and threw

23

him through the shattered sliding glass door. (Id. at 259-60). Williams had

24

to jump to avoid landing on an electrical box and ultimately landed on his

25

head and back. (Id. at 262).

26
27

Williams got up and began wrestling with Petitioner. (Id.). Williams
and Petitioner started punching each other in the chest and face. (Id. at 26317
16cv3055-DMS-MDD

1

64). As the two struggled with each other outside, they “crashed into the

2

neighbor’s fence,” which fell down. (Id. at 264-66). Williams and Petitioner

3

got up and continued to fight. (Id. at 266). Petitioner threw Williams against

4

a shed and continued hitting him. (Id.). Williams and Petitioner ended up

5

next to Buganan’s car, still fighting. (Id.). Williams began hitting Petitioner

6

as hard as he could in defense and Petitioner started to run away. (Id. at

7

268).

8
9

Williams sustained several cuts to his side and head as a result of the
assault, including a cut to his leg caused by wrestling with Petitioner on top

10

of shattered glass and a cut to his head that might have been caused by glass.

11

(Lodg. No. 1-4 at 272-73).

12

Petitioner testified that Buganan let him into the master bedroom and

13

began to fondle him. (Lodg. No. 1-5 at 452-55). Williams then walked

14

through the front door and came into the bedroom with his fist raised. (Id. at

15

454). When Williams saw Petitioner, he “jumped on the bed and [Williams]

16

came after [Petitioner] and [they] started fighting immediately.” (Id. at 455).

17

Petitioner testified that the sliding glass door shattered when Williams and

18

he “went out of the window” while fighting. (Id. at 457). Petitioner explained

19

that the two were punching each other and testified that Williams was using

20

a screwdriver to hit him. (Id. at 460). Petitioner sustained injuries to his

21

chin, neck, chest, left shoulder, left side, right side, left elbow, right leg, back

22

and head. (Id. at 463-68).

23

The jury was persuaded that Petitioner’s testimony was less credible

24

than Williams’ testimony. The Court can overrule the jury’s determination of

25

credibility only if no rational trier of fact could have agreed with the jury.

26

Cavazos, 535 U.S. at 2. A rational jury could have concluded that Petitioner’s

27

repeated blows to Williams, throwing him through the shattered sliding glass
18
16cv3055-DMS-MDD

1

door, throwing him into a shed and knocking down a fence while fighting

2

constitutes sufficient force likely to produce great bodily injury. See Ross v.

3

Hense, 2009 WL 322146, at *5 (C.D. Cal. Feb. 3, 2009); Jackson v. Kirkland,

4

No. C 05-4889 MHP (pr), 2008 WL 4298217, at *19 (N.D. Cal. Sept. 19, 2008)

5

(explaining the inquiry is properly focused on the force used and that

6

punching a victim repeatedly in the face, pushing him backwards and hitting

7

him with a radio is sufficient evidence of the requisite force to support the

8

conviction). Accordingly, the evidence was sufficient to support the jury’s

9

verdict and the California Court of Appeal’s decision was neither contrary to,

10

nor an unreasonable application of, clearly established federal law.

11

3.

12

Petitioner presented his insufficient evidence to convict him of burglary

13

claim to the state appellate and supreme courts on direct review. (Lodg. Nos.

14

5, 9). The appellate court denied Petitioner’s claim on the merits and the

15

California Supreme Court summarily denied the petition without a

16

statement of reasoning or citation to authority. (Lodg. Nos. 8, 10). Petitioner

17

also raised this claim on collateral review. (Lodg. Nos. 13, 15). The

18

California Court of Appeal and California Supreme Court denied both habeas

19

petitions. (Lodg. Nos. 14, 16). This Court will again “look through” to the

20

state appellate court’s opinion denying the claim as the basis for authority.

21

Ylst, 501 U.S. at 805-06.

22
23
24
25
26
27

Burglary

[Petitioner] argues on appeal that, because the evidence was
insufficient to support the convictions on counts three and four, his
conviction for burglary cannot stand because it is impossible to
determine whether the jury relied on the legally infirm theory that
[Petitioner] entered to commit the felony of assault likely to cause
great bodily injury or on the legally supported theory that
[Petitioner] entered to commit the felony of corporal injury to a
former cohabitant or spouse with a prior offense. Our rejection of
19
16cv3055-DMS-MDD

1
2
3
4
5
6
7
8

[Petitioner’s] contentions as to the factual sufficiency of the
evidence to support the assault convictions is fatal to his arguments
on the burglary count.
More importantly, the burglary conviction would be upheld as
long as there was evidence from which the jury could have inferred
[Petitioner] entered with the intent of committing an assault likely
to cause great bodily injury, even if he did not actually commit those
crimes. [Petitioner] makes no claim that the evidence was
insufficient for a rational jury to infer he possessed the requisite
intent when he entered, and this provides an independent ground
for affirming his burglary conviction.

9
10
11
12

(Lodg. No. 8 at 12-13) (internal citations omitted).
a.

Summary of Arguments

Petitioner argues there was insufficient evidence to convict him of

13

burglary because he “lived there for six years, payed [sic] rent, mail came

14

there in [his] name, the landlord new [sic] [he] was staying there and . . .

15

Buganan testified [he] was living there on the stand . . . .” (ECF No. 1 at 6).

16

Petitioner further argues that because “the act occurred outside the home” he

17

cannot be convicted of burglary. (Id.). Respondent argues that since there is

18

sufficient evidence to convict Petitioner of the assaults, there is sufficient

19

evidence to convict Petitioner of burglary because a rational jury could infer

20

Petitioner’s intent to commit the assaults. (ECF No. 10-1 at 36-37).

21
22

b.

Analysis

In California, a defendant’s entry into a building with the intent to

23

commit a larceny or any other felony meets the definition of burglary, unless

24

the defendant has an “unconditional possessory right to enter as the occupant

25

of that structure or . . . is invited in by an occupant who knows of and

26

endorses the felonious intent.” People v. Salemme, 2 Cal. App. 4th 775, 781

27

(1992); see Cal. Penal Code § 459.
20
16cv3055-DMS-MDD

The trial testimony confirms that Petitioner was not living at the

1
2

mobile home the day the burglary occurred. Buganan testified that

3

Petitioner moved in with her after he was released from prison for about a

4

month. (Lodg. No. 1-3 at 132-33). Buganan asked Petitioner to move out and

5

told him that she would put his belongings on the back porch for Petitioner to

6

pick up. (Id. at 133-34). Buganan further testified that after Petitioner

7

moved out, she told him that he was not welcome in her home. (Id.).

8

Petitioner testified that he did not move into the mobile home with Buganan

9

after he was released from prison, but conceded that he had clothes and tools

10

at her home. (Lodg. No. 1-5 at 437-39). Petitioner explained that Buganan

11

asked him to pick up his belongings from her home and that he did so on the

12

day of the assault and burglary. (Id. at 440-41). Thus, there was sufficient

13

evidence supporting the jury’s finding that Petitioner had neither an

14

unconditional possessory right to enter the property nor an invitation from an

15

occupant with knowledge of Petitioner’s felonious intent. 2
Further, the record shows that there was ample evidence that, when

16
17

Petitioner entered the mobile home, he did so with the intent to commit a

18

felony – namely, one or more of the following crimes: corporal injury to spouse

19

and/or former cohabitant and assault by means likely to produce great bodily

20
21
22
23
24
25
26
27

Petitioner could have been convicted of burglary even if Petitioner was
living in the mobile home the day of the burglary. People v. Gill, 159 Cal.
App. 4th 149, 161 (2008) (finding that a person can be convicted of
burglarizing their own home if there has been estrangement and spousal
abuse and the victim inside fears for their safety); see People v. Ulloa, 180
Cal. App. 4th 601, 604-10 (2009) (explaining that a history of domestic
violence with evidence of forced entry and the victim’s testimony are
sufficient to uphold a burglary conviction where the defendant was living
with the victim at the time of entry).
2

21
16cv3055-DMS-MDD

1

injury upon both Buganan and Williams. (Lodg. No. 3-1 at 2, 177); See People

2

v. Allen, 21 Cal. 4th 846, 863 n.18 (1999) (“[T]he gist of the [burglary] offense

3

is entry with the proscribed intent, and that such an entry constitutes the

4

completed crime of burglary regardless of whether . . . any felony or theft

5

actually is committed.”) (internal citation and quotation omitted). Based on

6

the trial testimony, a rational jury could conclude that when Petitioner broke

7

through Buganan’s glass door with a hammer, he intended to commit a

8

felony. Although the jury did not need to specify or agree upon which felony

9

Petitioner intended to commit when he entered the mobile home, there was

10

sufficient evidence in the record for the jury to conclude that Petitioner

11

intended to commit one of the felonies listed above when he entered. See

12

People v. Hernandez, 180 Cal. App. 4th 337, 348 (2010) (“the jury is not

13

required to agree on which specific intent the burglar harbored at the time he

14

entered the residence”). Accordingly, Petitioner’s burglary conviction is

15

supported by sufficient evidence and he is not entitled to habeas relief on his

16

claim in ground one.

17

4.

Conclusion

18

The California Court of Appeal reasonably concluded there was

19

sufficient evidence for a jury to convict Petitioner of burglary and assault

20

with force likely to cause great bodily injury upon both Buganan and

21

Williams. Therefore, this Court RECOMMENDS claims one (insufficient

22

evidence to convict Petitioner of burglary) and two (insufficient evidence to

23

convict Petitioner of assault upon Williams and Buganan) be DENIED.

24

B.

25

Claim 3: Exclusion of Third Party Testimony
In claim three, Petitioner argues that the trial court violated his

26

constitutional right to present an effective defense when it excluded the

27

testimony of Buganan’s ex-boyfriend, Raymond Legaux. (ECF No. 1 at 8).
22
16cv3055-DMS-MDD

1

1.

State Opinion

2

Petitioner presented this claim to the state appellate and supreme

3

courts on direct review. (Lodg. Nos. 5, 9). The appellate court denied

4

Petitioner’s claim on the merits and the California Supreme Court summarily

5

denied the petition without a statement of reasoning or citation to authority.

6

(Lodg. Nos. 8, 10). Accordingly, this Court will “look through” to the state

7

appellate court’s opinion denying the claim as the basis for authority. Ylst,

8

501 U.S. at 805-06. That court wrote:

19

We conclude the exclusion of the evidence here was not an abuse of
discretion. The issue here was whether Buganan (as well as
Williams) truthfully described [Petitioner’s] assaultive conduct.
The only potential relevant “prior false report” evidence would be
evidence that Buganan would exact retribution against a former
boyfriend by calling police and then falsely accusing the boyfriend
of assaultive behavior to have him arrested and prosecuted for
crimes he had not committed. Legaux’s testimony, although it
would have established Buganan called the police to their home
numerous times, would have shown the opposite because Legaux
would have testified that on every occasion Buganan did not falsely
accuse him of assaultive behavior to have him arrested but instead
truthfully told police that Legaux had not hit her or touched her.
We do not conclude the exclusion of such evidence was an abuse of
the trial court’s discretion, or that it denied [Petitioner] his right to
present a defense.

20

(Lodg. No. 8 at 13-15) (internal citations omitted) (emphasis in original).

9
10
11
12
13
14
15
16
17
18

21

2.

Summary of Arguments

22

Petitioner sought to present Legaux as an impeachment witness who

23

“would have testified Buganan had a pattern of misleading her boyfriends,

24

lying to them, keeping their property even after the end of the relationship,

25

and threatening to call the police when there was an argument.” (ECF No. 1

26

at 63, 66-67). Petitioner contends that this would show that Buganan had a

27

“willingness to falsely implicate an ex-boyfriend in a crime which resulted in
23
16cv3055-DMS-MDD

1

a de facto sentence of life without the possibility of parole.” (Id. at 67).

2

Petitioner argues that the trial court abused its discretion in excluding this

3

testimony because it was probative of Buganan’s credibility, which was

4

relevant to and a crucial part of Petitioner’s defense. (Id. at 65-67).

5

Respondent asserts that exclusion of Legaux’s testimony did not

6

prevent Petitioner from “having a meaningful opportunity to present a

7

complete defense” because his testimony was irrelevant and would have

8

misled the jury “with a tangential matter.” (ECF No. 10-1 at 24).

9

Respondent explains that Legaux would have testified that whenever the

10

police came to Buganan’s mobile home she always denied that Legaux hit

11

her, which would contradict Petitioner’s argument that Buganan was willing

12

to falsely implicate an ex-boyfriend in a crime. (Id. at 27). Respondent

13

further explains that Petitioner’s constitutional right to present an effective

14

defense was not infringed because he had four witnesses testify about

15

Buganan’s “changing stories about crimes [Petitioner] committed against her

16

in 2010 and testified himself about what occurred in 2010 and about the

17

current crimes.” (Id. at 28).

18

3.

Legal Standard

19

“[T]he Constitution guarantees criminal defendants a meaningful

20

opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683,

21

690 (1986) (internal citation and quotation omitted); see Holmes v. South

22

Carolina, 547 U.S. 319, 324 (2006) (“[w]hether rooted directly in the Due

23

Process Clause of the Fourteenth Amendment, or in the Compulsory Process

24

or Confrontation Clause of the Sixth Amendment, the Constitution

25

guarantees criminal defendants a meaningful opportunity to present a

26

complete defense”) (citations and internal quotations omitted); Chambers v.

27

Mississippi, 410 U.S. 284, 294 (1973); Su Chia v. Cambra, 360 F.3d 997, 1003
24
16cv3055-DMS-MDD

1

(9th Cir. 2004) cert. denied, 544 U.S. 919 (2005) (“The Supreme Court has

2

made clear that the erroneous exclusion of critical, corroborative defense

3

evidence may violate both the Fifth Amendment due process right to a fair

4

trial and the Sixth Amendment right to present a defense.”) (citations and

5

internal quotations omitted). Alleged trial court errors in the application of

6

state evidentiary laws are generally not cognizable as grounds for federal

7

habeas relief, “unless the error renders the proceeding so fundamentally

8

unfair as to deprive the petitioner of due process under the Fourteenth

9

Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing

10

Estelle, 502 U.S. at 69-70)); Estelle, 502 U.S. at 68 (“it is not the province of a

11

federal habeas court to reexamine state-court determinations on state-law

12

questions”).

13

“A defendant’s right to present relevant evidence is not unlimited, but

14

rather is subject to reasonable restrictions,” including evidentiary rules.

15

United States v. Scheffer, 523 U.S. 303, 308 (1998). “[S]tate and federal

16

rulemakers have broad latitude under the Constitution to establish rules

17

excluding evidence from criminal trials,” and the Supreme Court has

18

approved “well-established rules of evidence [that] permit trial judges to

19

exclude evidence if its probative value is outweighed by certain other factors

20

such as unfair prejudice, confusion of the issues, or potential to mislead the

21

jury.” Holmes, 547 U.S. at 324, 326. Evidentiary rules violate a defendant’s

22

constitutional rights only if they “infring[e] upon a weighty interest of the

23

accused and are arbitrary or disproportionate to the purpose they are

24

designed to serve.” Id. at 324 (internal quotation marks omitted); see also

25

Scheffer, 523 U.S. at 315 (explaining that exclusion of evidence pursuant to a

26

state evidentiary rule is unconstitutional where it “significantly undermined

27

fundamental elements of the defendant’s defense”).
25
16cv3055-DMS-MDD

1

“[P]resentation of defense witnesses lies at the heart of the defendant’s

2

right to mount a defense.” Moses v. Payne, 555 F.3d 742, 767 (9th Cir. 2009)

3

(citing Washington v. Texas, 388 U.S. 14, 19 (1967)). Courts “employ a

4

balancing test for determining whether the exclusion of testimony violates

5

due process” in habeas cases. Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir.

6

2003) (citing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985)). To

7

determine whether testimony was constitutionally excluded, the Court must

8

“weigh the probative value of the evidence, its reliability, whether the trier of

9

fact can evaluate the evidence, whether the evidence is cumulative, and

10

whether the evidence proves integral to the defense theory” against the

11

state’s interest in excluding the evidence. Id. (citing Miller, F.2d at 994). A

12

violation of the right to present a defense merits habeas relief only if the

13

error likely had a substantial and injurious effect on the verdict. Jackson v.

14

Nevada, 688 F.3d 1091, 1104 (9th Cir. 2012).

15

4.

Analysis

16

As Respondent notes, Petitioner’s claim is based on state law. (See ECF

17

No. 10-1 at 28). The state court decision addressed the trial court’s alleged

18

error in the interpretation or application of California Evidence Code § 352.

19

(See Lodg. No. 8 at 14-15). Petitioner argues that the evidence was critical to

20

the credibility of Buganan, one of the victims and chief prosecution witnesses.

21

(ECF No. 1 at 72-73). Thus, he claims it was fundamentally unfair to exclude

22

the evidence, or to uphold a determination of guilt without evidence of

23

Legaux’s testimony. (Id. at 72).

24

To the extent Petitioner asserts that the trial court erred in excluding

25

Legaux’s testimony under the California Rules of Evidence, he alleges a

26

violation of state law that generally does not entitle him to federal habeas

27

relief. The United States Supreme Court has not squarely addressed
26
16cv3055-DMS-MDD

1

whether or when an evidentiary rule, such as California Evidence Code § 352,

2

that requires a trial court to “balance factors and exercise its discretion”

3

might violate a criminal defendant’s right to present a defense. Moses, 555

4

F.3d at 758. Supreme Court cases have “focused only on whether an

5

evidentiary rule, by its own terms, violated a defendant’s right to present

6

evidence,” and not whether a court’s exercise of discretion in excluding

7

evidence violates that right. Id.

8

California Evidence Code § 352 is a well-established rule of evidence

9

permitting a court to exercise discretion in admitting testimony. See Cal.

10

Evid. Code § 352. “The rule does not, in and of itself, abridge a defendant’s

11

right to present a defense.” Mendez v. Biter, No. C 10-5555 PJH (PR), 2013

12

WL 843554, at *15 (N.D. Cal. Mar. 6, 2013) (citing Montana v. Egelhoff, 518

13

U.S. 37, 42 (1996)). “Because the Supreme Court’s precedents do not

14

establish a principle for evaluating discretionary decisions to exclude the

15

evidence at issue here, AEDPA does not permit us . . . to conclude that a state

16

trial court’s exclusion of evidence . . . violated clearly established Supreme

17

Court precedent.” Moses, 555 F.3d at 760. Thus, the state court reasonably

18

concluded that a determination of guilt without the proffered testimony was

19

not arbitrary or disproportionate.

20

In any event, Petitioner fails to demonstrate how exclusion of Legaux’s

21

proposed testimony was material to his defense and violated his

22

constitutional rights. The one-page report of the interview of Legaux

23

provides:

24
25
26
27

Legaux stated that he had a tempestuous relationship with
Buganan that lasted three years and that had police over at the
trailer they shared “at least ten times.” According to Legaux,
Buganan would threaten to have him arrested due to an
outstanding warrant he had whenever they had a disagreement
27
16cv3055-DMS-MDD

1
2
3
4
5
6
7
8
9
10
11
12

that usually involved her jealous feelings. Legaux added that
Buganan was the most “crazy possessive woman” he ever knew.
Legaux explained that while living in the trailer in the mountain
community of Guatay she would call the police saying that there
was “a man here that would not leave and had a warrant” whenever
they had a disagreement or things didn’t go her way. Legaux stated
that he was never arrested since police would ask her if he had hit
her or anyway touch her and she would invariabl[y] say “no.”
Legaux stated that he was afraid of getting arrested and this was
one of the reasons he decided to leave her and end the relationship.
Legaux stated that he left all his possessions at Buganan[’s] home
including his clothes and that she refused to return them to him.
Legaux stated that Buganan told him that the only way he could
get his property back was if he returned to her. Legaux added that
when he left Buganan she would “stalk” him for one year and a half
until she met someone else ([Petitioner]).

13
14

(Lodg. No. 3-1 at 111). Petitioner’s trial counsel argued that Legaux’s

15

testimony was admissible because it would present Buganan’s modus

16

operandi and intent, which is that “she lies, that she manipulates, that she

17

keeps [her ex-boyfriends’] property and she threatens them with police action

18

if they don’t do what she wants.” (Lodg. No. 1-5 at 375-76). The trial court

19

found Legaux’s proffered testimony “to be of marginal relevance” and that

20

“said testimony would involve the undue consumption of time, and moreover,

21

would have a tendency to confuse and mislead the jury.” (Id. at 376).

22

This Court finds that Legaux’s purported statement would have

23

involved unnecessary review because it would have revealed that Buganan

24

did not actually falsely implicate Legaux in any crime. (ECF No. 1 at 67);

25

(Lodg. No. 3-1 at 111). The relationship history between Legaux and

26

Buganan would not exculpate Petitioner for the counts for which he was

27

convicted. Moreover, Petitioner’s trial counsel vehemently cross-examined
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and impeached Buganan. (See Lodg. No. 1-3 at 151-216). For example,

2

Petitioner’s trial counsel explained the inconsistencies between Buganan’s

3

current trial testimony and 2010 testimony and highlighted Buganan’s prior

4

statement that she falsely accused Petitioner of the 2010 crime. (Id. at 162,

5

168-90). Therefore, the trial court’s exclusion of Legaux’s testimony did not

6

violate Petitioner’s constitutional rights. See Holmes, 547 U.S. at 326-27

7

(stating that the Constitution does not forbid exclusion of evidence that is

8

“only marginally relevant or poses an undue risk of harassment, prejudice or

9

confusion of the issues”). Accordingly, the Court RECOMMENDS that

10

Petitioner’s third ground for relief be DENIED.

11

C.

Claim 4: Admission of Evidence Relating to Petitioner’s Prior

12

Conviction

13

In claim four, Petitioner asserts that the trial court abused its

14

discretion in admitting facts relating to Petitioner’s 2010 conviction. (ECF

15

No. 1 at 9).

16

1.

State Opinion

17

Petitioner presented this claim to the state appellate and supreme

18

courts on direct review. (Lodg. Nos. 5, 9). The appellate court denied

19

Petitioner’s claim on the merits. (Lodg. No. 8 at 17). The California Court of

20

Appeal found that admission of evidence relating to Petitioner’s prior

21

conviction “involve[d] an additional consumption of time,” but that there was

22

no abuse of discretion. (Id. at 17). The California Supreme Court summarily

23

denied the petition without a statement of reasoning or citation to authority.

24

(Lodg. No. 10). Thus, the Court must again “look through” to the state

25

appellate court’s opinion denying this claim. Ylst, 501 U.S. at 805-06. That

26

court wrote:

27

[Petitioner] argues Buganan’s testimony concerning the
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3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

incident lacked any probative value because (1) Buganan told
personnel at the district attorney’s office (in connection with the
original 2010 case) [Petitioner] had not driven a car at her or
assaulted her, and he was not guilty of the charges; (2) she provided
false testimony at his preliminary hearing; and (3) a third person
told a defense investigator that Buganan said [Petitioner] was not
guilty of the 2010 assault. However, Buganan proffered reasons for
why she made statements in 2010 minimizing [Petitioner’s]
culpability, and it was for the jury to determine whether these
reasons credibly explained why her current version of the events
differed from her 2010 statements. The fact a jury must determine
a witness’s credibility does not mean the witness’s testimony lacks
probative value ab initio.
[Petitioner] also argues, even if there was some probative
value to the evidence, the risk of undue prejudice and undue
consumption of time was so high that it clearly outweighed the
probative value of the evidence, and therefore it was an abuse of
discretion to admit the evidence. However, propensity evidence
under section 1109, particularly when it involves the same victim,
is “highly relevant and probative of the issues in this case,” and the
jury’s knowledge that [Petitioner] was punished for this earlier
assault “substantially mitigates the kind of prejudice usually
associated with the introduction of prior bad act evidence.”
Although admission of the evidence did involve an additional
consumption of time, we conclude it was not an abuse of discretion
for the court to conclude the probative value of the evidence
warranted the additional time necessary to present the evidence.
(Lodg. No. 8 at 15-17) (internal citations omitted).

21

2.

Summary of Arguments

22

Petitioner argues that the trial court abused its discretion by permitting

23

a “mini-trial of the 2010 incident.” (ECF No. 1 at 9). He contends that

24

absent Buganan’s testimony regarding the 2010 incident, “it is reasonably

25

probable a more favorable outcome would have occurred.” (Id.). Respondent

26

argues that “admission of [propensity] evidence concerning [Petitioner’s] 2010

27

convictions . . . . is not a basis for relief . . . . because the Supreme Court has
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expressly declined to rule upon whether the admission of propensity evidence

2

violates due process. (ECF No. 10-1 at 28, 31).

3

3.

Legal Standard

4

Typically, “a state court’s evidentiary ruling, even if erroneous, is

5

grounds for federal habeas relief only if it renders the state proceedings so

6

fundamentally unfair as to violate due process.” Spivey v. Rocha, 194 F.3d

7

971, 977-78 (9th Cir. 1999). In order to establish that evidence violated a

8

criminal defendant’s due process rights, the defendant must demonstrate

9

that the admission of the challenged evidence “offends some principle of

10

justice so rooted in the traditions and conscience of our people as to be ranked

11

as fundamental.” Patterson v. New York, 432 U.S. 197, 202 (1977) (internal

12

citations and quotations omitted); see also Montana v. Egelhoff, 518 U.S. 37,

13

43 (1996).

14

California Evidence Code § 1109 governs the admission of prior acts of

15

domestic violence in a criminal proceeding and provides in relevant part:

16

in a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant’s commission
of other domestic violence is not made inadmissible by Section 1101
if the evidence is not inadmissible pursuant to Section 352.

17
18
19

Cal. Evid. Code § 1109(a)(1). Under § 352, the trial court may exclude

20

evidence that is admissible under § 1109 if “the probative value is

21

substantially outweighed by the probability that its admission (a) will

22

necessitate undue consumption of time or (b) create substantial danger of

23

undue prejudice, of confusing the issues, or of misleading the jury.” Cal.

24

Evid. Code § 352. Section 1101 generally permits the admission of relevant

25

character evidence or prior bad acts only to prove a fact other than a criminal

26

defendant’s conduct on a particular occasion or his propensity to commit such

27

an act. Cal. Evid. Code § 1101. Section 1109 permits propensity evidence
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that would be inadmissible under § 1101 “so long as evidence regarding prior

2

acts of domestic violence committed by a criminal defendant is not rendered

3

inadmissible by the balancing test set forth in section 352.” Ross v. Carey,

4

No. 2:05-cv-01705 MCE CHS P, 2010 WL 2975779, at *12 (E.D. Cal. July 27,

5

2010) (citing People v. Johnson, 185 Cal. App. 4th 520, 529 (2010) (noting

6

that Cal. Evid. Code § 1109 allows “testimony about prior misconduct [and] . .

7

. allow[s] the jury to draw propensity inferences from the prior acts” so long

8

as the evidence is admissible under Cal. Evid. Code § 352.); People v.

9

Jennings, 81 Cal. App. 4th 1301, 1309 n.3 (2000) (finding admission of prior

10

acts evidence under § 1109 to demonstrate a defendant’s propensity to

11

commit a crime did not amount to a due process violation because § 352

12

requires such evidence to be more probative than prejudicial)).

13

4.

Analysis

14

Under the highly deferential standard established by AEDPA, the state

15

court’s rejection of Petitioner’s due process claim is not contrary to or an

16

unreasonable application of clearly established federal law and was not based

17

on an unreasonable determination of the facts. The Supreme Court “has

18

never expressly held that it violates due process to admit other crimes

19

evidence for the purpose of showing conformity therewith, or that it violates

20

due process to admit other crimes evidence for other purposes without an

21

instruction limiting the jury’s consideration of the evidence to such purposes.”

22

Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001), rev’d on other

23

grounds by Woodford v. Garceau, 538 U.S. 202 (2003). The Ninth Circuit

24

stated:

25
26
27

The Supreme Court has made very few rulings regarding the
admission of evidence as a violation of due process. Although the
Court has been clear that a writ should be issued when
constitutional errors have rendered the trial fundamentally unfair,
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1
2
3
4

it has not yet made a clear ruling that admission of irrelevant or
overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of a writ. Absent such “clearly
established federal law,” we cannot conclude that the state court’s
ruling was an “unreasonable application.”

5

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal citations

6

omitted). Because there is no clearly established Supreme Court precedent

7

governing a trial court’s discretionary decision to admit evidence as a

8

violation of due process, the Court RECOMMENDS that Petitioner’s fourth

9

ground for relief be DENIED. See Rodriguez v. Hatton, No. 1:16-cv-00180-

10

JLT (HC), 2017 WL 931876, at *11 (E.D. Cal. Mar. 9, 2017) (denying habeas

11

relief where the petitioner claimed his constitutional rights were violated

12

when the trial court admitted prior acts of domestic violence involving the

13

petitioner and the victim under Cal. Evid. Code § 1109 because there is no

14

clearly established Supreme Court precedent governing this issue).

15

C.

16

Petitioner claims that “the trial court committed an abuse of discretion

Claim 5: Romero

17

in refusing to strike a prior.” (ECF No. 1 at 9). The Court construes this as

18

Petitioner’s fifth claim for relief.

19

1.

20

Petitioner presented this claim to the state appellate and supreme

State Opinion

21

courts on direct review. (Lodg. Nos. 5, 9). The appellate court denied

22

Petitioner’s claim on the merits and the California Supreme Court summarily

23

denied the petition for review. (Lodg. Nos. 8 at 21; 10). Petitioner also raised

24

this claim on collateral review. (Lodg. Nos. 13, 15). The California Court of

25

Appeal and California Supreme Court denied the habeas petitions. (Lodg.

26

Nos. 14, 16). Once again, the Court must “look through” to the state

27

appellate court’s opinion denying this claim. Ylst, 501 U.S. at 805-06. That
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

court wrote:
[Petitioner] has not clearly shown the sentencing court
abused its discretion. The trial court was aware of its discretion to
dismiss the prior strike conviction allegation and [Petitioner] does
not suggest the court considered any impermissible factors in
declining to do so. The probation report and argument from counsel
fully informed the court of [Petitioner’s] criminal history and
current offense, and the trial court was aware of its discretion to
dismiss and did not consider any impermissible factors in declining
to dismiss. The record showed [Petitioner] had served many years
in prison (and violated parole multiple times), been incarcerated
most of the time since 1997, twice attacked women after being
released from prison even before the instant offense, and again
attacked Buganan less than a year after being released from prison,
all of which provided support for the conclusion [Petitioner] was not
a person outside the spirit of the three strikes law.
[Petitioner] asserts the facts of the present crime do not
warrant a life sentence because they did not involve great bodily
injury, were crimes involving passion, and it was merely fortuitous
that it occurred in Buganan’s home rather than on the street.
Moreover, he argues one of his earlier crimes was of ancient
vintage, and the other arose from the same dysfunctional
relationship with Buganan as the present offense, which showed he
was not a danger to the community. However, our role is not to
decide the merits of his motion anew, but rather to assess whether
the court abused its discretion in balancing “the nature and
circumstances of the defendant’s present felonies and prior serious
and/or violent felony convictions, and the particulars of [the
defendant’s] background, character, and prospects.” “The concept
of discretion implies that, at least in some cases, a decision may
properly go either way.” The fact [Petitioner] may articulate good
arguments for dismissing a prior strike conviction allegation in the
furtherance of justice does not require reversal.
The record reflects the court was fully aware of its discretion
to dismiss a prior strike conviction allegation for purposes of
sentencing under the three strikes scheme but declined to exercise
its section 1385 discretion. We conclude the trial court did not
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1
2

abuse its discretion by denying [Petitioner’s] Romero motion.
(Lodg. No. 8 at 17-21) (internal footnotes and citations omitted).

3

2.

Summary of Arguments

4

Petitioner argues the trial court abused its discretion in refusing to

5

dismiss one or both of his strikes because the current offense did not

6

“demonstrate [Petitioner] was a danger to the community.” (ECF No. 1 at 9,

7

82, 91). Respondent contends that “failing to strike prior convictions under

8

California law is not cognizable in federal habeas corpus” and the trial court’s

9

decision was correct. (ECF No. 15 at 3, 7).

10

3.

Legal Standard

11

California trial courts have discretion to dismiss prior strikes in the

12

interest of justice under California Penal Code § 1385(a). Romero, 13 Cal. 4th

13

at 529-30. In ruling on a Romero motion, “the court in question must

14

consider whether, in light of the nature and circumstances of his present

15

felonies and prior serious and/or violent felony convictions, and the

16

particulars of his background, character, and prospects, the defendant may

17

be deemed outside the . . . spirit [of California’s Three Strikes law], in whole

18

or in part, and hence should be treated as though he had not previously been

19

convicted of one or more serious and/or violent felonies.” People v. Williams,

20

17 Cal. 4th 148, 161 (1998).

21

On federal habeas review, the federal district court is bound by the

22

California Court of Appeal’s reasonable determination under state law which

23

is supported by the record. See Waddington v. Sarausad, 555 U.S. 179, 192

24

n.5 (2009) (“we have repeatedly held that it is not the province of a federal

25

habeas court to reexamine state-court determinations on state-law

26

questions”) (citation and internal quotations omitted); Bradshaw v. Richey,

27

546 U.S. 74, 76 (2005) (“a state court’s interpretation of state law, including
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1

one announced on direct appeal of the challenged conviction, binds a federal

2

court sitting in habeas corpus”); Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988)

3

(federal habeas courts may not disregard intermediate appellate state court’s

4

interpretation of state law, unless the federal court “is convinced by other

5

persuasive data that the highest court of the state would decide otherwise”)

6

(citation and quotations omitted).

7

4.

Analysis

8

To the extent Petitioner claims that the trial court erred under state

9

law by using the wrong standard under § 1385, his claim should be rejected

10

because it is not cognizable on federal habeas review. See Brown v. Mayle,

11

283 F.3d 1019, 1040 (9th Cir. 2002) (a challenge to the denial of a Romero

12

motion is a state law claim that cannot be considered in a federal habeas

13

petition), vacated on other grounds by Mayle v. Brown, 538 U.S. 901 (2003);

14

see also Estelle, 502 U.S. at 67-68.

15

To the extent Petitioner’s claim is reviewable based on a possible denial

16

of due process, ground five lacks merit because Petitioner has not shown his

17

sentencing was fundamentally unfair. Following the jury trial which

18

returned guilty verdicts as to all charged offenses and the bench trial finding

19

all of the criminal history allegations of the information to be true, Petitioner

20

requested that both of his strike priors be stricken. (Lodg. No. 1-7 at 653-55).

21

Petitioner’s counsel stated that “while [Petitioner’s] record is not crystal

22

clean, given the nature of the offense, and given some of the evidence that

23

was received, I would ask the court to fashion a sentence that is appropriate.”

24

(Id. at 657). Specifically, Petitioner argued the court should strike his strike

25

priors because he accepted responsibility for his actions and “demonstrates a

26

willingness to rehabilitate himself.” (Id. at 655-56). Petitioner’s trial counsel

27

argued that “sentencing under the Three Strikes law . . . is disproportionate
36
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1

to the severity of the offenses here. . . . [because] there was no great bodily

2

injury” and indicated that at the least, Petitioner’s 1997 strike should be

3

dismissed because it is “aged.” (Id. at 656-57). Further, Petitioner’s counsel

4

opined that sentencing Petitioner to 25 years would be appropriate given that

5

Petitioner was 52 years old at sentencing, which would make him 72 years

6

old by the time he completed his sentence. (Id. at 659). The People argued

7

that Petitioner falls squarely within “the spirit of the three strikes law”

8

because he is a “violent man, and has been violently attacking women for

9

over ten years.” (Id. at 660).

10

The Probation Officer’s Report indicated that Petitioner’s criminal

11

history went back to 1982.3 (Lodg. No. 3-1 at 34). The report noted that

12

based on his strike priors, Petitioner “is absolutely ineligible for a grant of

13

probation.” (Id. at 48). The probation officer ultimately recommended that

14

probation be denied and Petitioner be sentenced “for the term of 50 years to

15

life plus 11 years.” (Id. at 51).
After reviewing the probation officer’s 28-page report and hearing the

16
17

parties’ arguments, the trial court denied Petitioner’s motion to strike his two

18
19
20
21
22
23
24
25
26
27

In 1982, Petitioner was charged with burglary and convicted of receiving
stolen property. (Lodg. No. 3-1 at 34). In 1996, Petitioner was charged with
disorderly conduct and convicted of offensive words in a public place. (Id.).
In 1997, Petitioner was charged with burglary, attempted murder and
assault with a firearm and convicted of first-degree residential burglary and
petty theft with a prior. (Id.). In 2003, Petitioner pled guilty to corporal
injury on a spouse or cohabitant and was charged with first-degree
residential burglary and grand theft. (Id. at 34-35). In 2010, Petitioner pled
guilty to corporal injury on a spouse or cohabitant with a prior domestic
violence offender allegation, terrorist threats and contempt of court. (Id. at
37).
3

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1

prior strikes. The trial court found that Petitioner did not evince “any

2

genuine remorse for the conduct that brings him before the court” and

3

incorporated by reference “the remarks and reasoning . . . provided for [the

4

denial of Petitioner’s motion to strike prior strikes] in the course of the

5

hearing on December 4th[, 2012].” (ECF No. 18-1 at 1-2). On December 4,

6

2012, the trial court stated:

7
8
9
10
11

As someone once said, “Houston, we have a problem,” because
having given this some substantial thought and having fully
considered the probation officer’s report, in good conscience and
consistent with the applicable law and legal principles, I find myself
unable to exercise [Romero] discretion so as to strike either of the
strike-prior allegations. And subject to the arguments of counsel, I
respectfully decline to do so.

12

(Lodg. No. 1-1 at 12). On May 31, 2013, the trial court concluded that there

13

was not “anything new and different so as to compel the court to change the

14

decision that it rendered and articulated in the course of the sentencing

15

hearing on December 4th of last year.” (ECF No. 18-1 at 2). This Court finds

16

that the trial court’s decision was not fundamentally unfair based on

17

Petitioner’s criminal record.

18

In light of the facts in this case, the trial court’s conclusion that

19

Petitioner’s sentence fell within the spirit of California’s Three Strikes law,

20

and the Court of Appeal’s determination that the trial court’s ruling was not

21

an abuse of discretion under § 1385, were not objectively unreasonable.

22

Further, Petitioner fails to demonstrate that the denial of his Romero motion

23

was fundamentally unfair. Accordingly, this Court RECOMMENDS that

24

ground five of the Petition be DENIED.

25
26
27

V.

CONCLUSION

For all the foregoing reasons, IT IS HEREBY RECOMMENDED that
the District Judge issue an Order: (1) approving and adopting this Report
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1

and Recommendation, and (2) directing that Judgment be entered

2

DENYING the Petition.

3

IT IS HEREBY ORDERED that no later than June 14, 2017, any

4

party to this action may file written objections with this Court and serve a

5

copy on all parties. The document should be captioned “Objections to Report

6

and Recommendation.”

7

IT IS FURTHER ORDERED that any reply to the objections shall be

8

filed with the Court and served on all parties no later than June 21, 2017.

9

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

10

may waive the right to raise those objections on appeal of the Court’s order.

11

See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

12

IT IS SO ORDERED.

13
14

Dated: May 23, 2017

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