Black v. Surbia et al, No. 3:2008cv01151 - Document 19 (N.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus. Signed by Judge Charles R. Breyer on 08/04/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 8/4/2009)
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Black v. Surbia et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 GABRIEL BLACK, 12 Petitioner, 13 vs. 14 MICHAEL MARTEL, Acting Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) No. C 08-1151 CRB (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 17 Petitioner, a state prisoner at Mule Creek State Prison in Ione, California, 18 19 seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction 20 from Santa Clara County Superior Court. For the reasons set forth below, a writ 21 of habeas corpus will be denied. STATEMENT OF THE CASE 22 23 On August 27, 2004, a jury convicted petitioner of committing a lewd and 24 lascivious act upon a child under the age of fourteen. Cal. Pen. Code § 288(a). 25 The court found true that petitioner had suffered four prior strike convictions and 26 one prior serious felony conviction and, on January 5, 2005, pursuant to 27 California’s Three Strikes Law, sentenced petitioner to thirty years to life in state 28 prison. Dockets.Justia.com 1 On March 2, 2006, the California Court of Appeal affirmed the judgment 2 of the trial court and, on May 10, 2006, the Supreme Court of California denied 3 review. 4 5 6 7 8 9 On November 28, 2006, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was denied on December 21, 2006. On March 1, 2007, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of California. It was denied on July 18, 2007. On February 27, 2008, petitioner filed the instant petition for a writ of habeas corpus. The court found that the petition appeared to state cognizable 10 claims under § 2254, when liberally construed, and ordered respondent to show 11 cause why a writ of habeas corpus should not be granted. Respondent has filed 12 an answer to the order to show cause and petitioner has filed several traverses. 13 STATEMENT OF THE FACTS 14 The California Court of Appeal summarized the facts of the case as 15 16 17 18 19 follows: In March of 2004, 10-year-old J. lived in a house in San Jose with her mother, her father (defendant), her five-year-old brother and two half-sisters, A. who was older than J., and L., who was younger. Defendant and mother had been married since 1997, but they had on-going marital problems and separations. There was fighting and conflict in the household. At that time, defendant slept apart from mother either on a couch or in the children’s bedrooms. Sometimes defendant slept in a bed with J. 20 21 22 23 24 25 26 One weekend night in March, J. went to bed alone in the bedroom she shared with her younger sister L. In the middle of the night, J. woke up and saw defendant leaving the bedroom, although he had not been there when she went to bed. Very early the next morning, J. awakened because she felt something poking her back. She thought it was her cat, and put her hand back to brush it away, but felt nothing. She fell back to sleep. When J. woke up again, she found her hand on defendant’s penis; he was in her bed on his back. Defendant’s hand was on her hand, moving it up and down. Defendant had on boxer shorts and pants, and her hand was over his boxer shorts on his erect penis. J. could see part of his penis sticking out of his clothing, and she said it was “like hard and there was hair.” J. took her hand away and ran into the living room. She 27 28 2 1 recalled that defendant said good morning to her in a normal tone of voice. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 J.’s siblings were in the living room watching television, and so she sat under a blanket next to her sister. Defendant also came into the living room and sat on a couch. Sometime later, J. and one sister planned to go to 7-Eleven, but defendant came with them. Later in the day, the two youngest children were playing and ran outside without their shoes. Defendant got angry and yelled at them. He hit L. and sent her to her bedroom. J. thought her father had overreacted. She was upset and tried to intervene, but he forcibly put her in the bedroom too. J. was angry and said defendant should leave the house and not be living there. When the girls were in the bedroom, J. told L. that defendant made her put her hand on his private part while she was in bed. J. then called A. (her older sister) into the bedroom. A. later testified that J. had a “weird expression on her face” and “looked upset.” J. told A. that defendant put her hand on his private area that morning in the bedroom. A. then found their mother and told her to go talk to J. Their mother went into the bedroom and found J. upset and angry. J. told her what had happened with defendant and said she did not want her mother to talk to defendant about it. Her mother was shocked at what J. told her; she was not sure what to do. After an hour, she confronted defendant, but he denied doing anything. She told him she believed J. and told him to leave. At trial, she testified that defendant had a strange look on his face and said, “‘She was all over me today.’” Defendant then left the house and J.’s mother called the police. Two police officers responded and interviewed family members. When Officer Mason was interviewing A., defendant called the house. He then returned home and was arrested. Officer Rosendin briefly interviewed J. who was sobbing when he first arrived. He described her as withdrawn and a little nervous and scared. J. told him that about 7:00 that morning, she had awakened to see her father standing over her, with his erect penis sticking out of his unzipped pants while he moved her hand back and forth on it. Later that night, a police detective conducted a videotaped interview with J., but it was not admitted at trial, apparently due to redaction problems. At trial, J. testified that she had learned about private body parts and sexual activity from her mother and older sister, and also from family life classes at school. She had learned about good touches and bad touches as well. J. said she knew that it was a bad touch if a man had her touch his penis, and he could get in trouble for it. Defendant did not testify at trial. 25 People v. Black, No. H028363, 2006 WL 497758, at **1-2 (Cal. Ct. App. Mar. 2, 26 2006) (footnotes omitted). 27 28 3 1 2 STANDARD OF REVIEW This court may entertain a petition for a writ of habeas corpus “in behalf 3 of a person in custody pursuant to the judgment of a State court only on the 4 ground that he is in custody in violation of the Constitution or laws or treaties of 5 the United States.” 28 U.S.C. § 2254(a). 6 A petition for a writ of habeas corpus may not be granted unless the 7 petitioner has exhausted state judicial remedies by presenting the highest state 8 court available with a fair opportunity to rule on the merits of each and every 9 claim he seeks to raise in federal court. Id. § 2254(b)-(c); Rose v. Lundy, 455 10 U.S. 509, 515-16 (1982). But a petition may be denied on the merits even if 11 unexhausted. 28 U.S.C. § 2254(b)(2). CLAIMS & ANALYSIS 12 13 Petitioner raises two claims for relief under § 2254: (1) his sentence of 14 thirty years to life amounts to cruel and unusual punishment in violation of the 15 Eighth Amendment; and (2) the trial court failed to consider evidence of a cell 16 phone and two sets of clothes that would have cast “reasonable doubt” on his 17 guilt. Respondent argues that the claims are unexhausted, but should be denied 18 on the merits because they are clearly meritless. The court agrees. 19 20 1. Cruel and Unusual Punishment Petitioner claims that his sentence of thirty years to life, pursuant to 21 California’s Three Strikes Law, is cruel and unusual punishment in violation of 22 the Eighth Amendment. 23 The claim is unexhausted because petitioner did not include it in either his 24 petition for direct review, or his petition for a writ of habeas corpus, to the 25 Supreme Court of California. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 26 (1999) (state's highest court must be given opportunity to rule on claims even if 27 28 4 1 review is discretionary). His brief statement in his petition for a writ of habeas 2 corpus to the state high court – “Involuntary manslaughter . . . carries a lesser 3 penalty” – does not compel a different conclusion because petitioner did not 4 elaborate on the legal basis of his assertion, cite the Eighth Amendment or 5 otherwise indicate that he was raising a federal constitutional claim of cruel and 6 unusual punishment. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“For 7 purposes of exhausting state remedies, a claim for relief in habeas corpus must 8 include reference to a specific federal constitutional guarantee, as well as a 9 statement of the facts that entitle the petitioner to relief.”). The claim will denied 10 on the merits because it is clearly meritless. See 28 U.S.C. § 2254(b)(2); see also 11 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (unexhausted claim should 12 be dismissed only when not colorable). 13 “The Eighth Amendment does not require strict proportionality between 14 crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly 15 disproportionate’ to the crime.” Ewing v. California, 538 U.S. 11, 23 (2003). A 16 sentence will be found grossly disproportionate only in “exceedingly rare” and 17 “extreme” cases. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). 18 In determining whether a sentence is grossly disproportionate under a 19 recidivist sentencing statute, such as California’s Three Strikes Law, the court 20 looks to whether such an “extreme sentence is justified by the gravity of [an 21 individual’s] most recent offense and criminal history.” Ramirez v. Castro, 365 22 F.3d 755, 768 (9th Cir. 2004). In Ramirez, the Ninth Circuit held that a sentence 23 of twent-five years to life upon conviction of petty theft with prior convictions 24 was grossly disproportionate to the current crime where the previous two strikes 25 did not involve violence and where both strikes were the result of one negotiated 26 plea resulting in a one-year county jail sentence. 365 F.3d at 767-770. The court 27 28 5 1 noted that this was the “extremely rare case that gives rise to an inference of 2 gross disproportionality.” Id. at 770. By contrast, in Rios v. Garcia, the Ninth 3 Circuit held that a sentence of twenty-five years to life upon conviction of petty 4 theft with prior convictions was not grossly disproportionate. Rios v. Garcia, 390 5 F.3d 1082, 1086 (9th Cir. 2004). The Ninth Circuit distinguished Ramirez 6 because the defendant in Rios struggled with a guard to prevent apprehension, his 7 prior convictions of robbery “involved the threat of violence, because his cohort 8 used a knife” and because the defendant had a lengthy criminal history. Id.; 9 accord Andrade, 538 U.S. at 76 (upholding sentence of two consecutive terms of 10 25-years-to-life for recividist convicted of two counts of petty theft with a prior 11 theft conviction and who had four prior “strike” convictions for burglary). 12 Petitioner in the instant case was sentenced pursuant to California’s Three 13 Strikes Law, which is triggered when a defendant is convicted of a felony, and he 14 has suffered one or more prior “serious” or “violent” felony convictions. See 15 Cal. Penal Code § 667(e)(2)(A). Under California’s Three Strikes Law, any 16 felony conviction can constitute the third strike and subject a defendant to a term 17 of twenty-five years to life in prison. Andrade, 538 U.S. at 67. 18 Petitioner’s triggering offense was committing a lewd and lascivious act 19 upon a child under the age of fourteen, in violation of the California Penal Code 20 section 288(a), properly charged as a felony under California law. See Cal. Penal 21 Code § 1192.7(c)(6). The prior convictions that were alleged as “strikes” were 22 assault with a deadly weapon involving the personal infliction of great bodily 23 injury, false imprisonment, second degree burglary with an arming enhancement 24 and kidnapping. Based on the gravity of petitioner’s triggering offense and his 25 history of criminal recidivism, which includes multiple crimes of violence, his 26 sentence cannot be said to be grossly disproportionate in violation of the Eighth 27 28 6 1 Amendment. See Rios, 390 F.3d at 1086; see also Cacoperdo v. Demosthenes, 2 37 F.3d 504, 508 (9th Cir. 1994) (sentence of ineligibility for parole for 40 years 3 not grossly disproportionate when compared with gravity of sexual molestation 4 offenses). Petitioner is not entitled to federal habeas relief on this Eighth 5 Amendment claim. 6 2. Exclusion of Evidence 7 Petitioner claims that the trial court failed to consider evidence of a 8 cell phone and two sets of clothes that would have cast “reasonable doubt” on his 9 guilt. According to petitioner, his daughter touched his cell phone, not his erect 10 11 penis, and he was always fully clothed because he had on two sets of clothes. The claim is unexhausted because petitioner did not include it in either his 12 petition for direct review, or his petition for a writ of habeas corpus, to the 13 Supreme Court of California. See O'Sullivan, 526 U.S. at 845. That petitioner 14 raised a claim of exclusion of evidence in his petition for review to the state high 15 court does not compel a different result because the claim in that petition did not 16 concern the same evidence at issue in the instant claim. See Kelly v. Small, 315 17 F.3d 1063, 1067-69 (9th Cir. 2003) (exhaustion requires that specific factual 18 basis of claim be presented to highest state court). Petitioner’s instant claim will 19 be denied on the merits because it is clearly meritless. See 28 U.S.C. § 20 2254(b)(2). 21 The exclusion of evidence may implicate a defendant’s constitutional 22 rights to due process and to present a defense, rights originating in the Sixth and 23 Fourteenth Amendments. Holmes v. South Carolina, 547 U.S. 319, 324 (2006). 24 But petitioner’s claim that the trial court failed to introduce into evidence 25 “articles of clothing and cell phone as requested by [him]” is without any 26 evidentiary support. There is no indication in the record that petitioner ever 27 28 7 1 sought to introduce any article of clothing or a cell phone at trial. Nor is there 2 any indication in the record that there was a cell phone in petitioner’s pocket at 3 the time of the incident, or that petitioner was wearing two sets of clothing. 4 Petitioner is not entitled to federal habeas relief on his wholly unsupported claim 5 of exclusion of evidence. See Jones v. Gomez, 66 F. 3d 199, 204-05 (9th Cir. 6 1995) (allegations not supported by specific facts do not warrant habeas relief). The alleged excluded evidence also fails to instill “reasonable doubt” into 7 8 the jury’s finding that petitioner committed a lewd and lascivious act on a child 9 under the age of fourteen in violation of California Penal Code section 288(a). 10 The evidence in support of a guilty verdict was compelling. Ten-year-old J. 11 testified at trial that she woke up one morning to find something poking her back. 12 She fell back asleep, but when she woke up again, she found her hand on 13 petitioner’s penis. Petitioner was wearing his boxer shorts and pants, lying on his 14 back besides her in the bed. J.’s hand was on petitioner’s erect penis over his 15 boxer shorts. Petitioner’s hand was on J.’s hand, moving it up and down on 16 petitioner’s penis. J. saw part of petitioner’s penis sticking out of his clothing. 17 She said “it was like hard and there was hair.” Rep. Tr. at 226. Even if there was 18 evidence that petitioner had a cell phone in his pocket and was wearing two sets 19 of clothing, it cannot be said that the exclusion of said evidence had a substantial 20 and injurious effect on the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 21 619, 637 (1993). The alleged excluded evidence would have had little impact on 22 the jury in light of the other compelling evidence presented at trial. 23 / 24 / 25 / 26 / 27 28 8 1 2 3 4 CONCLUSION After a careful review of the record and pertinent law, the court is satisfied that the petition for a writ of habeas corpus must be DENIED. The clerk shall enter judgment in favor of respondent and close the file. 5 SO ORDERED. 6 DATED: 08/04/09 CHARLES R. BREYER United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\CRBALL\2008\1151\Black, G1.merits.wpd 27 28 9
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