Dominguez v. Felker, No. 5:2007cv02241 - Document 26 (N.D. Cal. 2009)
Court Description: ORDER denying 1 Petition for Writ of Habeas Corpus. Signed by Judge Jeremy Fogel on August 17, 2009. (jflc1, COURT STAFF) (Filed on 8/18/2009)
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Dominguez v. Felker Doc. 26 1 2 **E-Filed 8/18/09** 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 11 FERNANDO DOMINGUEZ, 12 Petitioner, 13 14 Case Number C 07-2241 JF ORDER1 DENYING PETITION FOR WRIT OF HABEAS CORPUS v. TOM FELKER, 15 Respondent. 16 17 18 19 20 21 22 23 24 25 26 In 2001, Petitioner Fernando Dominguez (“Dominguez”) was convicted in the San Benito Superior Court of (1) rape, Cal. Pen. Code § 261(a)(2); (2) kidnapping for rape, Cal. Pen. Code § 209(b) (formerly Cal. Pen. Code § 208(d)); and (3) murder, Cal. Pen. Code § 187. In 2004, the California Court of Appeal affirmed the rape conviction but reversed the kidnapping-for-rape conviction for insufficient proof of asportation and reversed the murder conviction because of incomplete instructions on felony-murder accomplice liability. People v. Dominguez, 13 Cal. Rptr. 3d 212 (Ct. App. 2004). The California Supreme Court granted Respondent’s petition for review and remanded the matter to the appellate court for reconsideration in light of People v. Cavitt, 33 Cal. 4th 187 (2004) and People v. Johnson, 26 Cal. 3d 557 (1980). On remand, the Court of Appeal again reversed the murder and kidnapping convictions. 22 Cal. Rptr. 3d 249 27 28 1 This disposition is not designated for publication in the official reports. Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) Dockets.Justia.com 1 (Ct. App. 2004). In 2005, the California Supreme Court again granted review, and on August 28, 2 2006, it reversed the Court of Appeal, unanimously affirming Petitioner’s convictions in all 3 respects. 39 Cal. 4th 1141 (2006), cert. denied, 127 S. Ct. 1491 (2007). 4 On April 24, 2007, Petitioner filed the instant petition for writ of habeas corpus. On 5 November 20, 2007, this Court ordered Respondent to answer the petition, and on March 23, 6 2009, the Court granted Petitioner’s request for oral argument. A hearing was held on May 22, 7 2009. Having considered the record, the briefing and the arguments presented at the hearing, and 8 for the reasons set forth below, the petition will be denied. 9 I. BACKGROUND AND PROCEDURAL HISTORY 10 A. Facts 11 Early in the morning of August 23, 1997, Officer Edward Escamilla (“Escamilla”) was on 12 patrol in Hollister, California when he encountered Irma Perez (“Perez”) on the side of the road 13 with three men, including Petitioner and Lionel Salcedo (“Salcedo”). The identity of the third 14 individual was not ascertainable at that time because that person wandered away from the scene 15 when Escamilla approached. Perez appeared intoxicated, but when Escamilla questioned Perez 16 about her condition, she responded that she was fine and that the group was waiting for a taxi. 17 After running a warrant check, Escamilla released the group. Escamilla subsequently witnessed 18 Petitioner, Salcedo and Perez entering a taxi. Rafael Gutierrez (“Gutierrez”), the driver of the 19 taxi, testified at trial that he picked up Perez and three men in Hollister at approximately 2:00 20 a.m. He drove them to a nearby labor camp, where two of the men exited the cab. When no one 21 volunteered to pay the fare, Gutierrez started to drive back to town with the third man and Perez 22 still in the cab. The third man then paid the fare, and Gutierrez left him and Perez on the side of 23 the road. Gutierrez observed that after exiting the taxi, Perez began to walk in the direction of 24 Hollister, away from the labor camp, and that the individual who paid the fare then exited the 25 taxi and followed Perez. After pausing to write in his logbook, Gutierrez drove back to town, 26 passing Perez and the third man, who at that point almost had caught up to Perez. Gutierrez also 27 witnessed one of the men who had exited the taxi at the labor camp walking toward Perez’s 28 location from the direction of the camp. 2 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 Several days later, a tractor driver unearthed Perez’s partly-clad body in a walnut orchard 2 approximately 250 feet from the road. The victim was naked from the waist down; her brassiere 3 was pulled up over her chest, and another piece of clothing was wrapped around her neck. Police 4 discovered drag marks in the soil, which suggested that the victim had been dragged from a point 5 near the road into the orchard. At trial, one officer testified that he had observed two sets of shoe 6 prints alongside the drag marks, suggesting that two people had dragged Perez into the orchard. 7 Near a corner of the orchard, approximately twenty-five feet from the road and in an 8 embankment ten to twelve feet below the surface of the road, the police found a shallowly buried 9 pair of blue jeans together with underwear and a sock. A distance of about fifty feet separated 10 the clothing from the beginning of the drag marks. The victim’s shoes also were found in the 11 orchard. 12 The ensuing police investigation revealed that on the night in question the victim had 13 been seen at the Smokehouse Bar in Hollister with Petitioner, Salcedo, and a third man, Jose 14 Martinez (“Martinez”). Officers then visited the labor camp where Petitioner and Martinez were 15 known to live, only to find had the men had left that day and not returned. The two men were 16 located that night, walking on a remote road. Upon questioning, Petitioner initially gave police a 17 false name. He later admitted his identity but denied any having any knowledge about Perez. 18 Police then arrested Petitioner, who then gave a series of what he later admitted were false 19 accounts concerning his interactions with the victim. Petitioner initially acknowledged that he 20 had been with Perez on the night in question, but he denied having intercourse with her or 21 knowing anything about her death. He later stated that they had engaged in intercourse but 22 asserted that Perez had consented. During trial, Petitioner maintained his position that Perez had 23 consented to have intercourse with him. 24 The forensic evidence contradicted Petitioner’s version of events. Analysis revealed that 25 Perez had been beaten and choked to death and that she had been forcibly raped, causing 26 substantial bruising to her posterior vaginal wall and cervix. Semen from two different 27 individuals was found in her vagina. DNA analysis identified one of the individuals as Carlos 28 Quesada, the father of Perez’s children, with whom she was living at the time. The other sample 3 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 belonged to Petitioner. At trial, Quesada testified that he had engaged in consensual intercourse 2 with the victim during the morning of the day in question. Martinez was excluded as a possible 3 donor, and before trial he died of natural causes. 4 B. Trial and Conviction 5 At trial, Petitioner testified in his own defense. He asserted that after exiting the taxi he 6 walked with the victim along the road, expressing his desire to have sex. He further testified that 7 she demurred at first, saying that she did not know him. According to Petitioner, the victim 8 eventually relented, and they had intercourse off the side of the road. Then, after they had 9 finished, Martinez allegedly arrived on the scene. Martinez apparently was upset by what he saw 10 and would not let Petitioner walk the victim home. Petitioner then left Martinez and Perez 11 together and returned to the labor camp. According to Petitioner, his testimony allowed the 12 inference that Martinez killed Perez in a jealous rage, outside Petitioner’s presence. In response, 13 the government argued that Petitioner personally had kidnapped, raped, and murdered the victim, 14 and that it was possible that Martinez had aided Petitioner in one or more of these acts. During 15 closing argument, the prosecutor contended that Petitioner’s version of events should be 16 discounted in light of the multiple misrepresentations he had made to police, and the fact that 17 Petitioner’s story had shifted as additional adverse evidence was uncovered. 18 The trial court instructed the jury with CALJIC Nos. 8.10 and 8.21, which are the 19 standard instructions defining first-degree felony murder. Instruction No. 8.10 read as follows: 20 21 22 23 24 25 The defendant is accused in Count 1 of the information of having committed the crime of murder in violation of Penal Code section 187. Every person who unlawfully kills a human being during the commission or attempted commission of rape is guilty of the crime of murder in violation of section 187 of the Penal Code. Instruction No. 8.21 stated as follows: In order to prove this crime, each of the following elements must be proved: the human being was killed and the killing occurred during the commission or the attempted commission of the crime of rape. 26 27 28 The unlawful killing of a human being, whether intentional or unintentional or accidental which occurred during the commission or attempted commission of the crime of rape is murder in the first degree when the perpetrator had a specific intent to commit the 4 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 crime. Specific intent to commit rape and the commission or attempted commission of such crime must be proved beyond a reasonable doubt. 2 3 Petitioner also requested an aiding and abetting instruction as well as CALJIC No. 8.27, 4 which addresses the felony-murder liability of offenders who aid and abet in the felony but do 5 not participate in the killing. At the time of trial, CALJIC No. 8.27 stated in pertinent part as 6 follows: 7 8 9 10 11 If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of [rape], all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental. 12 For reasons not evident from the record below, the trial court did not give aiding and abetting 13 instructions or CALJIC No. 8.27. After reading the jury instructions, the trial court asked: 14 “Counsel, do you agree that I have read all the instructions that we agreed upon?” Both the 15 prosecutor and defense counsel answered in the affirmative. 16 After the jury had deliberated for nearly a day, it sent two notes to the court. One note 17 stated, “Elements. [¶] 1. A human being was killed. [¶] 2. Murder occurred.” The second stated: 18 We are unclear of the criteria of the statute. To find Dominguez guilty of felony murder ([Penal Code §] 187). Did Dominguez only need to be present at the time of [Perez’s] death, or did he need to kill her himself[?] We are clear about the rape element of the crime. 19 20 21 The trial court responded with a handwritten note, stating: “I cannot offer anything more 22 than the wording of [instructions] 8.10 and 8.21 which I previously read.” The record contains 23 no indication that the court consulted with counsel from either side before responding to the 24 jury’s inquiry. Approximately one hour after the trial court’s response to the inquiry, the jury 25 returned with a guilty verdict. 26 Petitioner filed a timely appeal. His primary contentions in support of reversal were (1) 27 the trial court committed reversible error by failing to provide instructions pursuant to CALJIC 28 No. 8.27 in response to the jury’s note; (2) the trial court should have provided instructions sua 5 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 sponte concerning the defense described in People v. Mayberry, 125 Cal. Rptr. 745 (1975), 2 which held that a defendant lacks the requisite intent to commit rape if he has a “reasonable and 3 bona fide belief” that the victim had consented voluntarily to the act of intercourse; and (3) the 4 facts where insufficient to support the kidnapping conviction because any forced movement of 5 the victim was minimal and incidental to the act of rape. 6 7 8 9 C. Reversal on First Appeal 1. Failure to provide instructions in accordance with CALJIC No. 8.27 On Petitioner’s first direct appeal, the state appellate court concluded that the instructions were “wholly inadequate to apprise the jury of the principles germane to the evidence and issues 10 before it.” 13 Cal. Rptr. 3d at 217. Acknowledging that “the felony murder rule makes the 11 perpetrator of an enumerated offense automatically guilty of murder when he personally causes 12 the death of another in the course of committing the target offense,” id. at 217-18, the court took 13 issue with the fact that the jury received “no instruction whatsoever” with respect to the 14 “complicity” prong of the felony murder rule, pursuant to which culpability also is extended to 15 “to all persons jointly engaged at the time of such killing in the perpetration of or an attempt to 16 perpetrate the when one of them kills while acting in furtherance of the common design.” Id. at 17 218 (citations omitted). According to the state appellate court, the jury was not given the option 18 of considering a scenario in which Petitioner raped the victim but did not participate in a later 19 and separate act that resulted in her murder. See id. (“the instruction places no restriction 20 whatsoever on felony murder culpability, but makes the defendant guilty for any ‘killing’ that 21 occurs ‘during’ the commission of the predicate offense. Contrary to the People’s argument, 22 culpability for felony murder does not extend so far when the defendant himself is not the 23 killer…it is clear that for a nonkiller to be guilty of felony murder, more is required than that he 24 and the killer cooperate at some point in perpetrating a predicate offense.”). The state appellate 25 court held further that the error was compounded when the jury asked for clarification and none 26 was provided. Id. at 220 (“[A] court must do more than figuratively throw up its hands and tell 27 the jury it cannot help. It must at least consider how it can best aid the jury.”) (citation omitted). 28 In opposition to Petitioner’s arguments, the state contended that the trial court’s failure to 6 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 provide the requested instruction was harmless error, because the evidence presented at trial 2 established that the rape and subsequent murder were part of a “continuous transaction.” 13 Cal. 3 Rptr. 3d at 221. The state appellate court disagreed, commenting that: 4 [I]f the jury was not convinced that defendant was the killer, it might well have been unable to find the requisite nexus, or any nexus, between his conduct and the killing. The jury knew that the victim was last seen in the presence of two men, presumably defendant and Martinez. It knew that she was brutally beaten and that she was sexually penetrated with great force. It found that defendant, who admittedly had sexual relations with her, committed the crime of rape. It does not follow that if Martinez killed her, he did so as a result of, in furtherance or, or while jointly engaged in, defendant's rape of Ms. Perez, or that he did so while defendant was assisting him in an attempted rape. The jury could have believed, and the jury’s question implied, that Martinez might have killed her during a separate, subsequent assault in which defendant did not participate. Nor need the assault have been sexual in nature; Martinez might have killed her, as defendant’s testimony might be understood to imply, in a fit of jealous rage. In any of these scenarios the jury might have found that the killing was independent of any felony committed (or aided and abetted) by defendant. 5 6 7 8 9 10 11 12 13 14 Id. at 221. 2. Mayberry Defense Instruction 15 16 17 18 19 20 21 22 23 24 25 26 The Mayberry defense is embodied in CALJIC No. 10.65, and reads in relevant part as follows: There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse]…Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge…unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity. However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of conduct by the defendant that amounts to force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief. If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find [him]…not guilty of the crime. 27 The state has the burden of proving beyond a reasonable doubt that the defendant did not actually 28 7 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 and reasonably believe that the victim consented to the act of intercourse. See Dominguez, 47 2 Cal. Rptr. 3d at 580 n.4. 3 In his direct appeal, Petitioner argued that the trial court should have provided a 4 Mayberry instruction to the jury sua sponte. The state appellate court rejected this argument. 5 Noting that “the trial court has a sua sponte duty to instruct on defenses where there is substantial 6 evidence to support the instruction,” 13 Cal. Rptr. 3d at 223, it held that there was a complete 7 lack of evidence supporting Petitioner’s theory of consent. Id. (“There was no evidence that Ms. 8 Perez gave an ostensible but ineffectual consent.”). In addition, if the jury had found that there 9 had been consent, it would not have found the Dominguez guilty of rape because such a charge 10 requires “an act of sexual intercourse with another ‘against that person’s will by means of force, 11 violence, duress, menace, or fear of immediate and…unlawful bodily injury.” Id. (citation 12 omitted). Moreover, if the jury had believed Dominguez’s testimony—according to which there 13 was clear manifestation of consent—there would be no reason to find that she acted in a manner 14 that clearly indicated consent but in reality she was resisting the act. See id. at 224 (“if the jury 15 believed that this conduct constituted an outward manifestation of consent, by itself or with other 16 evidence, then it had no basis to reject the defense theory of actual consent.”). 17 3. Insufficient Evidence to Support Kidnapping Conviction 18 The state appellate court agreed with Petitioner that the record did not support the 19 conviction for kidnapping. The trial court instructed that kidnapping for rape “consists in 20 relevant part of the unlawful movement of a person, by force or fear, ‘for a substantial distance 21 where the movement is not merely incidental to the commission of the rape and where the 22 movement substantially increases the risk of harm to the person over and above that necessarily 23 present in the crime of rape itself.’” 13 Cal. Rptr. 3d at 227 (citation omitted). After a lengthy 24 analysis of the meaning of “incidental” (and suggesting that the term may need to be clarified by 25 the California Legislature), the state appellate court concluded that the movement of the victim of 26 a mere ten to twelve feet away from the roadway, which apparently would have little effect on 27 the potential visibility of the act, did not support the allegation that a separate act of kidnapping 28 was necessary to effect the crime of rape. See id. at 234 (“Ms. Perez was not forced into an 8 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 enclosure which concealed her from public view. Instead of being taken from a position of very 2 high public visibility to very low visibility…Ms. Perez was moved from a location with little 3 chance of observation to one with a marginally lower chance…there is no evidence that, at the 4 time of the asportation, defendant intended any further harm to the victim than is inherent in the 5 offense of rape.”). 6 D. California Supreme Court Order and Subsequent Court of Appeal Decision 7 Following Petitioner’s success on his first direct appeal, the California Supreme Court 8 vacated the state appellate court’s decision with instructions to reconsider the case in light of 9 Cavitt and Johnson.2 Cavitt instructed that the “purpose of the felony-murder rule is to deter 10 those who commit the enumerated felonies from killing by holding them strictly responsible for 11 any killing committed by a cofelon, whether intentional, negligent, or accidental, during the 12 perpetration or attempted perpetration of the felony.” Dominguez, 39 Cal.4th at 1159 (quoting 13 Cavitt, 33 Cal. 4th at 197) (emphasis in original). There is no need to find a “very specific causal 14 relationship” between the murder and the underlying felony. See Cavitt, 33 Cal. 4th at 197-98. 15 “Indeed, the felony-murder rule is intended to eliminate the need to plumb the parties’ peculiar 16 intent with respect to a killing committed during the perpetration of the felony. Id. The felony 17 murder rule thus requires only a “logical nexus” between the felony and the resulting homicide. 18 Id. at 199. Moreover, a “logical nexus” is not a required element of the crime but rather is a 19 “clarification of the scope of an element.” Id. at 203. When there is a clear logical nexus 20 between the murder and the felony, no duty is imposed upon the trial court to clarify the meaning 21 of the term. Instead, it is the defense’s obligation to ask for additional instructions. See id. at 22 204 (“if the requisite nexus between the felony and the homicidal act is not at issue and the trial 23 court has otherwise adequately explained the general principles of law requiring a determination 24 whether the killing was committed in the perpetration of the felony, ‘it is the defendant’s 25 26 27 28 2 Johnson “reaffirm[ed]” the standard of review in California for a criminal conviction: “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” 26 Cal. 3d at 578. 9 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 obligation to request any clarifying or amplifying instructions on the subject.’”) (citation 2 omitted). 3 On remand, the state appellate court again found that there had been reversible error, 4 holding that “[u]nder Cavitt, the jury should have been instructed that in order to convict 5 defendant of felony murder based on a killing perpetrated by Martinez, jurors had to find beyond 6 a reasonable doubt both a causal connection and a temporal one between the felony committed or 7 attempted by defendant, and the killing.” Dominguez, 22 Cal. Rptr. 3d at 256. It found that the 8 question posed by the jury went beyond whether there was a logical nexus, either temporally or 9 spatially, but rather whether it needed to consider a “causal” element between Petitioner’s 10 presence and the subsequent murder. See id. According to the state appellate court, the jury may 11 have been considering that Petitioner was innocent with respect to the homicide but was 12 prevented from making that finding because it did not have guiding instructions that would 13 comport with such a conclusion: 14 We must assume that the jury was led to ask this question not by idle curiosity, but by a failure on the part of the prosecution to persuade one or more jurors that defendant had anything to do with the killing beyond being present. Under Cavitt, of course, neither of the alternatives posited by the jury correctly stated the law. Defendant did not have to kill the victim himself, but neither could he be convicted based on mere presence at the scene. The jury’s question thus revealed that it was contemplating two factual scenarios, one compatible with guilt and one not. The question itself raises a strong possibility that the jury ultimately adopted the scenario inconsistent with guilt, and yet returned a guilty verdict. That possibility alone precludes a finding of harmless error. 15 16 17 18 19 20 Id. at 256-57. In addition, the state appellate court reaffirmed its earlier rulings with respect to 21 the Mayberry defense and the kidnapping conviction. Id. at 274. 22 E. California Supreme Court Decision 23 On review, the California Supreme Court again disagreed with the state appellate court’s 24 conclusions with respect to the asportation requirement and felony-murder instructional issues.3 25 26 27 28 3 The court quickly disposed of Petitioner’s argument that the trial court had a duty to issue a Mayberry instruction sua sponte, because Petitioner had not relied on such a defense at trial and there was no evidence to support such a defense. Instead, it found that Petitioner’s defense had been one of “consent in fact.” Dominguez, 39 Cal. 4th at 1147. Because a trial court 10 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 With respect to the kidnapping conviction, the court stated that the applicable test for a charge of 2 aggravated kidnapping was “clear”: “the victim must be forced to move a substantial distance, 3 the movement cannot be merely incidental to the target crime, and the movement must 4 substantially increase the risk of harm to the victim.” Dominguez, 39 Cal. 4th at 1153 (emphasis 5 in original). Because the test does not rely on quantitative parameters, the resolution of each case 6 “will necessarily depend on the particular facts and context of the case.” Id. Finding that the 7 trial court had instructed the jury properly, the Supreme Court reversed the Court of Appeal with 8 respect to its interpretation of the facts: “Defendant forced the victim in the middle of the night 9 from the side of the road to a spot in an orchard 25 feet away and 10 to 12 feet below the level of 10 the road. Though the distance is not great, an aerial photograph of the scene confirms the victim 11 was moved to a location where it was unlikely any passing driver would see her.” Id. at 1153. 12 Such asportation was not incidental to the crime of rape. See id. (“The movement thus changed 13 the victim’s environment from a relatively open area alongside the road to a place significantly 14 more secluded, substantially decreasing the possibility of detection, escape or 15 rescue…defendant’s movement of the victim down an embankment and into an orchard cannot 16 be said to have been merely incidental to the rape.). 17 With respect to the failure to instruct on non-killer complicity, the Supreme Court 18 determined—despite the government’s concession that for purposes of appeal there should have 19 been an instruction—that such failure constituted only harmless error. Dominguez, 39 Cal. 4th at 20 21 22 23 24 25 26 27 28 is obligated to give a particular instruction “only if (1) it appears that the defendant is relying on such a defense, or (2) if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case,” id. at 1148 (citation omitted), an instruction was not required because neither requirement had been met. Trial counsel only argued that Petitioner “had voluntary sex with this lady” and that the jury should find that there had been consent. Id. There was no reliance on a theory where Petitioner thought the act had been voluntary but in reality the victim had not given consent. In addition, a successful Mayberry defense requires that objective circumstances would indicate consent as well as a subjective showing that the defendant “honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse” because of “equivocal” conduct on the part of the victim. Id. The California Supreme Court concluded that there was no evidence that the victim’s conduct was equivocal in any way, and the evidence of trauma to the victim’s pelvic area negated any inference that the act had been voluntary. Id. at 1149. 11 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 1160. In addition, the court found that the error was harmless under either the state law standard 2 of review, see People v. Watson, 46 Cal. 2d 818, 836 (1956), or under the more stringent 3 constitutional test of harmless error beyond a reasonable doubt as set forth in Chapman v. 4 California, 386 U.S. 18, 24 (1967). See id. The court stated: 5 The evidence demonstrated the victim was beaten before she was raped. The evidence also showed she was killed the night she was raped, on or near the spot where defendant kidnapped and raped her. Footprint evidence suggested two persons dragged the victim from the embankment next to the road into the orchard, where her body was eventually found. Finally, it was uncontradicted that defendant and Martinez fled their home in the labor camp immediately after the victim’s body was discovered, and that defendant told several lies to police when questioned… Accordingly, even had the trial court instructed the jury with CALJIC No. 8.27 in response to its question, the jury would necessarily have concluded defendant was liable for murder, either as the direct perpetrator or under the felony-murder rule applicable to nonkilling cofelons. 6 7 8 9 10 11 12 Id. 13 II. STANDARD OF REVIEW 14 The provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) govern 15 this case. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). Under AEDPA, when 16 reviewing a state criminal conviction, a federal court may grant a writ of habeas corpus only if a 17 state court proceeding “(1) resulted in a decision that was contrary to, or involved an 18 unreasonable application of, clearly established Federal law, as determined by the Supreme Court 19 of the United States; or (2) resulted in a decision that was based on an unreasonable 20 determination of the facts in light of the evidence presented in the State court proceeding.” 28 21 U.S.C. § 2254(d). 22 III. DISCUSSION 23 A. Failure to Provide Mayberry Defense Instructions 24 As he did on his direct appeal, Petitioner contends that the trial court erred by failing to 25 instruct the jury as to the so-called Mayberry defense, i.e., that a reasonable though mistaken 26 belief that the victim consented to the act is a defense to a charge of rape. See Mayberry, 15 Cal. 27 3d at 157. See also People v. Williams, 4 Cal. 4th 354, 360 (1992) (“a defendant’s reasonable 28 12 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to 2 rape.”). The jury must be instructed on the defense if there is “substantial evidence of equivocal 3 conduct that would have led a defendant to reasonably and in good faith believe consent existed 4 where it did not.” Williams, 4 Cal. 4th at 362. 5 Under applicable Ninth Circuit precedent, however, failure to instruct on an affirmative 6 defense entitles a petitioner to federal habeas relief only if the defense was supported by 7 substantial evidence. See Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006). “The fact that a 8 jury instruction violates state law is not, by itself, a basis for federal habeas corpus relief.” Id. 9 Instead, the error must be one that was so serious as to affect the entire proceeding, thereby 10 threatening due process. Id. “Failure to instruct on the defense theory of the case is reversible 11 error if the theory is legally sound and evidence in the case makes it applicable.” Beardslee v. 12 Woodford, 358 F.3d 560, 577 (9th Cir. 2004) “The burden on the habeas petitioner is ‘especially 13 heavy’” when the alleged error was the failure to give an instruction. Clark, 450 F.3d at 904. 14 In the instant case, Petitioner has not shown that the absence of a Mayberry instruction 15 infected the entire proceeding. Petitioner’s exculpatory theory was actual consent. He did not 16 request a Mayberry instruction during trial. “[A] California trial court has no sua sponte 17 obligation to instruct on a particular defense unless “it appears that the defendant is relying on 18 such a defense.” People v. Barton, 12 Cal. 4th 186, 195 (1995) (quoting People v. Sedeno, 10 19 Cal. 3d 703, 716 (1974)). Under California law, there must be a substantial evidentiary basis in 20 the record to support a defense in order to require an instruction. Id. at 195 (instruction is 21 required only “if there is substantial evidence supportive of such a defense and the defense is not 22 inconsistent with the defendant’s theory of the case.”) (citation omitted). As the California 23 Supreme Court observed, Petitioner’s testimony at trial was that the victim initially did not want 24 to have intercourse but then relented and clearly gave consent. There was no evidence of 25 equivocal conduct, nor did defense counsel argue during closing argument that Petitioner was 26 misled by the victim. See Dominguez, 39 Cal. 4th at 1148 (“The right to a Mayberry instruction 27 in the absence of a request thus depends on whether the defendant has proffered ‘substantial 28 evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim 13 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 consented to sexual intercourse.’”) (quoting People v. Williams, 4 Cal. 4th 354, 361 (1992)). The 2 uncontroverted evidence presented at trial showed that there was severe trauma to the victim’s 3 pelvic region, and she was found in a disheveled state of undress. 4 B. Asportation Requirement under Former § 208(d) 5 Petitioner next contends that the California Supreme Court erred by retroactively applying 6 an interpretation of the applicable criminal statute to the facts his case, thus violating the holding 7 of the United States Supreme Court in Bouie v. City of Columbia, 378 U.S. 347 (1964), and that 8 even under the current interpretation of the statute, the evidence before the jury was insufficient 9 to support a conviction for aggravated kidnapping. 10 11 1. Bouie Error It is a due process violation to apply a judicial construction of a statute in a manner that is 12 “unexpected and indefensible by reference to the law which had been expressed prior to the 13 conduct in issue.” See Bouie, 378 U.S. at 354 (citation omitted). At the time of the alleged 14 offense, Cal. Penal Code § 208(d) provided that a person committed a crime when he 15 “kidnapped” someone with the intent to commit rape. “Asportation” of the victim is an element 16 of the offense. People v. Rayford, 9 Cal. 4th 1, 11 (1994). Petitioner argues that in 1997, when 17 the events in question occurred, it was settled under California law that asportation of any 18 distance less than ninety feet was insufficient to sustain a conviction for simple kidnapping under 19 § 207. In support of his Bouie argument, Petitioner cites People v. Martinez, 20 Cal. 4th 225 20 (1999), which expressly overruled “cases holding that specific distances failed to establish 21 asportation.” Id. at 239. 22 While Martinez involved a charge of simple kidnapping rather than kidnapping with 23 intent to commit rape, Petitioner contends that the asportation element of § 208(d) prior to 24 Martinez must have been least as stringent as that for a charge of simple kidnapping because (1) 25 simple kidnapping is a lesser included offense of kidnapping for the purpose of rape and (2) a 26 lesser included offense must, by definition, contain all of the elements of the greater offense. See 27 People v. Pearson, 42 Cal. 3d 351, 355 (1986). In People v. Jackson, 66 Cal. App. 4th 182 28 (1998), the defendant was convicted of violating former Penal Code § 208(d). The state 14 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 appellate court held that simple kidnapping is a lesser included offense of kidnapping to commit 2 sodomy or oral copulation. Id. at 189. Petitioner posits that because kidnapping to commit rape 3 was described in the same statute as kidnapping to commit sodomy and oral copulation, it 4 therefore “is manifest” that simple kidnapping is a lesser included offense of kidnapping to 5 commit rape. 6 However, while there is some logic to Petitioner’s argument on its face, the California 7 Supreme Court had taken the opposite view prior to the commencement of Petitioner’s trial. In 8 People v. Rayford, 9 Cal. 4th 1, 11 (1994), the court concluded, after an extensive review of the 9 legislative history, that “ section 208(d) is a separate offense from, not an enhancement to, 10 section 207(a).” Accordingly, at the time of Petitioner’s acts “the standard of asportation for 11 section 208(d) kidnapping require[d] that the movement of the victim be for a distance which is 12 more than that which is merely incidental to the commission or attempted commission of rape, 13 oral copulation, sodomy, or rape by instrument, and that this movement substantially increase[d] 14 the risk of harm to the victim over and above that necessarily present in the commission or 15 attempted commission of these crimes.” Rayford, 9 Cal. 4th at 22. This was the standard applied 16 by the trial court and by the California Supreme Court. See Dominguez, 39 Cal. 4th at 1155. 17 There was no error under Bouie.4 18 19 Even assuming that Petitioner is correct with respect to the necessary inclusion of the required elements for simple kidnapping, the California Supreme Court’s decision in Martinez 20 21 22 23 24 25 26 27 28 4 At best, whether simple kidnapping was a lesser included offense at the time of Petitioner’s acts was an unsettled question. See Rayford, 9 Cal. 4th at 14 (describing historical relationship of simple kidnapping statute to its aggravated kidnapping brethren as “decidedly nonlinear”); People v. Ek-Luna, 2008 WL 2656166, at *11 (Cal. Ct. App. July 08, 2008) (unpublished) (“There is no gainsaying the fact that California law governing the asportation element of kidnapping is not a model of clarity.”). Ultimately, the question of whether a distance requirement for simple kidnapping charge under § 207 was incorporated into the aggravated kidnapping offenses described in the former § 208 requires an interpretation of state law. However, there can be no federal claim for habeas relief where a dispute involves an interpretation of state law. See Bradshaw v. Rickey, 546 U.S. 74 (2005) (per curiam) (state court interpretation of state law presents no federal question for federal habeas review); Mendez v. Small, 298 F.3d 1154, 1157 (9th Cir. 2002) (state court has final word on the interpretation of its own law). 15 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 did not announce a relevant change in the applicable law. Admittedly, at least several cases prior 2 to Martinez did suggest that a minimum distance was required to sustain a charge of simple 3 kidnapping. For example, in People v. Green, 27 Cal. 3d 1 (1980), the California Supreme Court 4 held that the forced movement of a murder victim for a distance of ninety feet could not support 5 a simple kidnapping charge.5 Id. at 66-67. Similarly, in People v. Caudillo, 21 Cal. 3d 562 6 (1978), the court held that unlike cases involving instructions of aggravated kidnapping, the 7 distance transported was the primary evidence to consider in determining whether a conviction 8 for simple kidnapping could stand. Id. at 574 (“Neither the incidental nature of the movement, 9 the defendant’s motivation to escape detection, nor the possible enhancement of danger to the 10 victim resulting from the movement is a factor to be considered in the determination of 11 substantiality of movement for the offense of kidnapping [under § 207]. Such factors would be 12 relevant in a…situation of aggravated kidnapping”). 13 In 1999, however, the Supreme Court reversed the rule that distance was the dispositive 14 factor in a simple kidnapping case. See Martinez, 20 Cal. 4th at 237 n.6 (“To the extent 15 Caudillo…prohibited consideration of factors other than actual distance in determining whether 16 the asportation was sufficient to constitute simple kidnapping, it is overruled.”). Reaffirming 17 “that factors other than actual distance are relevant to determining asportation [for aggravated 18 kidnapping] under section 208(b),” id. at 235, the court determined that such considerations also 19 are relevant cases brought under § 207 for simple kidnapping, thereby overruling cases such as 20 Green and Caudillo. See id. at 235-37. With respect to aggravated kidnapping, Martinez 21 22 23 24 25 26 27 28 5 Green considered whether a forced movement of ninety feet satisfied the requirement of Section 207(a), which required, inter alia, that such movement be to “another part of the county.” The court found as a matter of law that movement of ninety feet could not be movement to another part of the county. See also People v. Brown, 11 Cal. 3d 784, 789 (1974) (forcible movement of only seventy-five feet “did not constitute a forcible taking ‘into another part of the same county’”). Accordingly, the purported distance requirement may have arisen because § 207 appears to support that some significant forced transportation must occur, i.e., the perpetrator must “carr[y] the person into another country, state, or county, or into another part of the same county.” In contrast, aggravated kidnapping requires that the perpetrator “kidnaps or carries away” the victim. This distinction may explain the temporary divergence in interpretation with respect to the asportation element. 16 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 reiterated the accepted rule: “aggravated kidnapping requires movement of the victim that is not 2 merely incidental to the commission of the underlying crime and that increases the risk of harm 3 to the victim over and above that necessarily present in the underlying crime itself.” Id. at 232- 4 33 (citing Rayford, 9 Cal. 4th at 12, 22 and People v. Daniels, 71 Cal. 2d 1119, 1139 (1969)). 5 On Petitioner’s direct appeal, the California Supreme Court rejected the argument that 6 Green and similar cases had established a bright-line distance requirement, and thus concluded 7 that Martinez did not announce a change in the applicable law. See Dominguez, 39 Cal. 4th at 8 1153-54 (“We reject defendant’s simple syllogism because its premise fails. At the time of 9 defendant’s crime, it was not well established that under all circumstances simple kidnapping 10 required a movement of more than 90 feet.”). Without engaging in its own expansive review of 11 all the simple kidnapping case law prior to 1997, this Court concludes that the California 12 Supreme Court’s statement was an accurate conclusion regarding the unsettled nature of the 13 distance requirement (if any) for § 207. See, e.g., Rayford, 9 Cal. 4th at 19 n.19 (noting 14 inconsistencies in case law with respect to determinative nature of distance requirement for 15 simple kidnapping cases). 16 17 2. Substantial Evidence to Uphold Conviction The test with respect to whether there is sufficient evidence to support a conviction is 18 whether “after viewing the evidence in the light most favorable to the prosecution, any rational 19 trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 20 Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard “must be applied with explicit 21 reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 22 n.16. Pursuant to AEDPA, a federal court must apply the standards of Jackson with an additional 23 layer of deference. See Juan H. v. Allen, 408 F.3d 1262, 1274-1275 (9th Cir. 2005) (citing 28 24 U.S.C. § 2254(d)). As a result, this Court must ask whether the decision of the California 25 Supreme Court reflected an “unreasonable application” of the law. See id. 26 Aggravated kidnapping requires (1) movement of the victim that is not “merely 27 incidental” to the commission of the underlying crime that (2) increases the risk of harm to the 28 victim over and above that necessarily present in the underlying crime itself. Martinez, 20 Cal. 17 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 4th at 232. These two requirements are not separate prongs but rather interrelated inquiries. Id. 2 at 233. With respect to the “merely incidental” determination, the jury should look to the “‘scope 3 and nature’ of the movement,” including the actual distance moved. Id. (citation omitted). The 4 second requirement “refers to whether the movement subjects the victim to a substantial increase 5 in risk of harm above and beyond that inherent in [the underlying crime].” Id. (quoting Rayford, 6 9 Cal. 4th at 13-14). Factors to consider include “the decreased likelihood of detection, the 7 danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced 8 opportunity to commit additional crimes.” Id. In sum, an aggravated kidnapping charge requires 9 that “the victim must be forced to move a substantial distance, the movement cannot be merely 10 incidental to the target crime, and the movement must substantially increase the risk of harm to 11 the victim.” Dominguez, 39 Cal. 4th at 1153. 12 Petitioner contests whether the evidence supports a finding that his forced asportation of 13 the victim was more than “merely incidental” to the underlying crime. Specifically, he argues 14 that the movement down the embankment was to provide a “more comfortable” setting for the 15 act of intercourse. In addition, Petitioner contends that intercourse on the roadway would be 16 unsafe, and thus he and the victim moved away from the road. 17 As the California Supreme Court observed, the “merely incidental” requirement is not a 18 phrase that invites a specific and defined set of quantitative parameters. Dominguez, 39 Cal. 4th 19 at 1151 (“Whether a forced movement of a rape victim (or intended rape victim) was merely 20 incidental to the rape…is difficult to capture in a simple verbal formulation that would apply to 21 all cases.”). In analyzing the sufficiency of the evidence regarding the “more than incidental 22 movement” element, a California court is supposed to engage in “a multifaceted, qualitative 23 evaluation” of the scope and nature of the movement. Id. at 1152. This evaluation must also 24 take into consideration the interrelated, but separate, element of the offense that the risk of harm 25 to the victim must have been substantially increased by the movement. Id. While distance is a 26 factor, the “totality of the circumstances” for each case ultimately will determine culpability. Id. 27 In the instant case, the California Supreme Court correctly determined that forcing of the victim 28 twenty-five feet down an embankment to an orchard that would obscure the view not only of 18 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 persons on the roadway but also of persons standing on the road looking down was more than 2 incidental to the act of rape. Moving the victim off the roadway created substantial additional 3 risk to the victim and enabled Petitioner to proceed with the assault out of sight of traffic or 4 persons on the roadway. Accordingly, there was no error. 5 C. Failure to Provide Felony Murder Instruction 6 Petitioner argues that the trial court should have provided the jury with a felony-murder 7 instruction once it became evident that the jury may have been contemplating a scenario in which 8 Martinez killed the victim after Petitioner committed the rape. Specifically, Petitioner contends 9 that the trial court failed to provide a required instruction with respect to the specific intent and 10 “engaged in commission” elements contained in CALJIC 8.27. Petitioner argues that under the 11 standard of review set forth in Neder v. United States, 527 U.S. 1 (1999), the failure to provide 12 appropriate instructions constituted an error that was not harmless beyond a reasonable doubt.6 13 Under Neder, where the “jury’s instructions preclude any consideration of evidence 14 relevant to the omitted element…harmless-error analysis is appropriate.” 527 U.S. at 17-18. 15 “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was 16 uncontested and supported by overwhelming evidence, such that the jury verdict would have 17 been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 18 17. In the instant case, Petitioner cannot argue that he contested the omitted element. His 19 position at trial was that he did not commit either the rape or the murder, not that Martinez’s acts 20 constituted an event severable from the rape (thus precluding liability under the felony-murder 21 rule). In addition, the fact that any killing by Martinez was part of the same continuous act is 22 supported by overwhelming evidence. Petitioner disputes this finding, contending that he raised 23 a sufficient factual dispute as to whether the rape and any subsequent killing by Martinez were 24 6 25 26 27 28 The parties dispute whether the proper standard of review is harmless error beyond a reasonable doubt or the standard of review described in Brecht v. Abrahamson, 507 U.S. 619 (1993), which held that the appropriate standard of review on habeas corpus is “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. at 638. For purposes of the instant analysis only, the Court will assume that the trial court omitted instructions regarding an element of the offense and thus will apply the more rigorous Neder test. 19 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 logically connected. However, Petitioner’s hypothetical scenario strains reason. As discussed 2 above, the jury properly found that Petitioner (1) forcefully moved the victim from the road and 3 (2) raped her. If Martinez was standing by while the rape occurred, there was no separate act if 4 or when he decided to kill the victim. The only scenario that could support a legitimate basis for 5 reversal would be if Martinez came along long after the rape, after Petitioner left the scene. This 6 is not the scenario that the jury was considering, and, more importantly, the evidence presented at 7 trial supports the opposite conclusion—that either Martinez or Petitioner (or both) killed the 8 victim, with the support and knowledge of the other, and that both men then dragged her into the 9 orchard in an attempt to cover their tracks.7 10 As with the asportation requirement for a kidnapping charge, the causal connection 11 required for a felony murder conviction has been the subject of various judicial definitions over 12 the years. In People v. Cavitt, 33 Cal. 4th 187 (2004), the California Supreme Court provided 13 helpful clarification on this issue: 14 California law thus has long required some logical connection between the felony and the act resulting in death, and rightly so. Yet the requisite connection has not depended on proof that the homicidal act furthered or facilitated the underlying felony. Instead, for a nonkiller to be responsible for a homicide committed by a cofelon under the felony-murder rule, there must be a logical nexus, beyond mere coincidence of time and place, between the felony the parties were committing or attempting to commit and the act resulting in death. 15 16 17 18 19 Id. at 201. Evaluated under the Cavitt test, the evidence at trial overwhelmingly supports 20 Petitioner’s conviction. Petitioner argues, however, that a different standard applied in 1997, and 21 that prior to Cavitt the felony murder rule only covered acts that occurred “in furtherance of” an 22 underlying felony. Petitioner thus attempts to drive a legal wedge between the rape and the 23 murder by arguing that there was little evidence that the killing occurred “in furtherance” of the 24 25 26 27 28 7 Petitioner and the state appellate court consider the evidence of joint involvement to be flimsy at best. However, the California Supreme Court (and the jury, considering the verdict under the instructions given at trial) concluded otherwise. This Court concludes that the record does not support granting a writ based on a lack of factual evidence. The decision by the California Supreme Court did not constitute “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 20 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 underlying felony, in that if Martinez merely was present during the rape, the subsequent murder 2 was not committed in furtherance of the rape. But as Cavitt explained, the “in furtherance” 3 element was a formulation of “different words to convey the same concept: to exclude homicidal 4 acts that are completely unrelated to the felony for which the parties have combined, and to 5 require instead a logical nexus between the felony and the homicide beyond a mere coincidence 6 of time or place.” Id. Indeed, the instructions that were not given in the instant case are a 7 formulation of the “logical nexus” rule. See id. at 203 (“[The CALJIC 8.27] instructions 8 adequately apprised the jury of the need for a logical nexus between the felonies and the 9 homicide in this case.”). 10 Finally, Petitioner argues that the Court cannot surmise what the jury might have done 11 had the instruction been provided. However, “where a defendant did not, and apparently could 12 not, bring forth facts contesting the omitted element, answering the question whether the jury 13 verdict would have been the same absent the error does not fundamentally undermine the 14 purposes of the jury trial guarantee.” Neder, 527 U.S. at 19. Ultimately, the pertinent inquiry is 15 whether it is “clear beyond a reasonable doubt that a rational jury would have found the 16 defendant guilty absent the error?” Id. at 18. In the instant case, the answer is yes. 17 18 IV. ORDER Because the state court’s determination was not contrary to, or an unreasonable 19 application of, clearly established Supreme Court precedent, nor was it based on an unreasonable 20 determination of the facts in light of the evidence presented, 28 U.S.C. § 2254(d)(1)-(2), this 21 Court concludes that Petitioner has failed to show any violation of his federal constitutional 22 rights in the underlying state court proceeding. Accordingly, the petition for writ of habeas 23 corpus is DENIED. The Clerk shall enter judgment and close the file. 24 25 26 DATED: August 17, 2009 27 28 __________________________________ 21 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 JEREMY FOGEL United States District Judge 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 28 22 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1) 1 Copies of Order served on: 2 Edward Dallas Sacher 3 John H. Deist John.Deist@doj.ca.gov, DocketingSFAWT@doj.ca.gov, susan.chiang@doj.ca.gov dallas@sdap.org 4 Peggy S. Ruffra peggy.ruffra@doj.ca.gov, DocketingSFAWT@doj.ca.gov 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Case No. C 07-2241 JF ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (JFLC1)
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