Balbuena v. Miller

• Decision Date: 14 May 2013
• Docket Number: No. 2:11-cv-1234 MCE EFB P,2:11-cv-1234 MCE EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: CARLINE BALBUENA, Petitioner, v. WALTER MILLER, Warden, Respondent.

CARLINE BALBUENA, Petitioner,

v.WALTER MILLER, Warden, Respondent.

No. 2:11-cv-1234 MCE EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: May 14, 2013

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 judgment of conviction entered against her in the Sacramento County Superior Court on charges of first degree murder, assault on a child resulting in death, and felony child endangerment. She raises three claims of jury instruction error and one claim of ineffective assistance of trial counsel. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background¹

Either defendant Carline Balbuena, whose self-chosen rummy name was "Queen of the Damned," or codefendant James Morris, aka "Ultimate Evil," delivered the fatal blows to Balbuena's three-year-old son, Keith Carl Balbuena (KC). Because separate juries convicted them both of murder, we cannot ascertain from the verdicts who perpetrated and who aided and abetted the murder, particularly in light of overwhelming evidence that either or both abused the child over a long period of time, and either or both of them could have caused his tragic death. We affirmed codefendant Morris's conviction. (People v. Morris (Oct. 5, 2009, C058388) [nonpub. opn.].) With minor modifications, we will use our same summary of the facts.

Balbuena complains she was denied her constitutional right to competent counsel because her lawyer failed to hire an expert on intimate partner battering (IPB). She also urges us to reverse the judgment for an assortment of instructional errors. We accept the Attorney General's concession she is entitled to presentence custody credits and amend the abstracts of judgment to clarify that there is only one restitution and one parole revocation fine. In all other respects, we affirm the judgment.

By 8:00 p.m. on November 18, 2005, three-year-old KC was brain dead. A day earlier, paramedics observed severe bruising on his head, torso, chest, pelvis, and leg. The child was unresponsive. The emergency room doctor believed KC had been assaulted as he had a large amount of blood between his brain and his skull, pushing the brain to one side; a large amount of fluid in his abdomen; and a possible liver laceration. It appeared his kidneys had not been functioning normally for at least 24 to 48 hours. He also had a healing burn injury on the sole of his foot.

A surgeon drilled a hole in KC's skull and removed a bone to evacuate blood and relieve the pressure. Retinal hemorrhages in his right eye suggested his head had been shaken and hit very hard against a surface. According to a pediatrician specializing in child abuse, these injuries could not have been sustained from falling from a crib or other household fall; they would require "very significant force" generally associated with falls from major heights or motor vehicle accidents. In his expert opinion, the injuries, including those to KC's abdomen, were intentionally inflicted and the result of abuse.

The pathologist opined that the cause of death was blunt force injuries to the head, torso, and abdomen. If the head injury had not killed KC, the abdominal injuries would have. The discoloration along his cheek and lower border of one eye was consistent with having been struck in the eye and was not typical of a fall. Bruising was extensive, including a bruise on his forehead, three bruises on his chest, a bruise on the front of the left leg, a cluster of bruises on the inside of the left knee, a bruise on the top of his left foot, a bruise on the instep of the left foot, a bruise on the back of his right ankle, two bruises on his left arm, a bruise on his right forearm, a bruise in the muscle of his left buttock, and bruises on his right upper thigh and left hip. The force required to sustain the abdominal injury would have been a "kick or punch that goes up ... into the belly." The pathologist did not believe the administration of CPR could have caused the abdominal injury. A child who had sustained these abdominal injuries would have had symptoms including nausea, vomiting, pain, and listlessness.

The emergency personnel were not the first to observe evidence of abuse. Morris and his three-year-old daughter, H., moved into Balbuena's apartment in August 2005 to share expenses. Balbuena, with the help of a child care subsidy, enrolled her two children, KC and his one-year-old sister, A., in the same preschool H. attended. The director noted that KC's speech was delayed and A. did not move around like a child her age should. In October, KC's teacher and an assistant director saw bruising, inflammation, and scratches on the right side of his eye and ear and reported the injury to child protective services (CPS). CPS investigated the cause of the injury, but both Balbuena and Morris denied using physical punishment or knowing how he received the injury.

Later that month Morris pointed out to the preschool director that KC had burned his foot. Morris told the director he did not want her to "think that [he] did it." According to the director, the foot looked "charred," and since the injury had received no medical attention, she told Morris to take KC to the hospital for treatment. Again she reported the injury to CPS. KC had a third-degree burn that penetrated the dermis and destroyed the nerves. The injury had occurred two days earlier and the surrounding tissue had become infected. About a week later, KC complained to the preschool's assistant director that his foot hurt. She removed his shoe and sock and saw the foot was no longer bandaged and was bloody. Balbuena withdrew the children from the preschool on November 8 because her day care subsidy was terminated.

From November 8 until November 17, KC was in the exclusive care and custody of Balbuena and Morris. They left three-year-old KC and fifteen-month-old A. alone in the apartment for periods of time while they went to work at a company located a few minutes from their apartment. They would also take turns coming homeand taking care of the children for some of the workday. Life in the apartment by that time had become exceedingly stressful.

It would be an understatement to say that Balbuena cared more about men and their drugs than she did her children. Already a methamphetamine user, she became a drug dealer to support her husband Noel's expensive habit. She slept with her supplier and told him he had fathered her second child. She stole rents from a property she was managing for her mother because she and Noel could not pay their rent, and when Noel left her and she was evicted from her apartment, she lived with friends, eventually in a car with her children, and then moved to Sacramento. Nevertheless, she desired a relationship with Morris and was willing to pay for his marijuana and for much more than her share of the housing and food costs, give him massages, do his laundry, and to provide him with access to her car and cell phone.

Yet, according to Balbuena at trial, Morris was always angry. He did not think that she disciplined her children, and he was particularly annoyed with KC and the lack of progress he was making with toilet training. She described at great length and in disgusting detail how he physically disciplined KC, including forcing him to eat his own feces. She explained that for the first time she also started spanking KC to placate Morris and to keep him from inflicting more severe punishment on the child. She testified she had seen Morris punch KC in the stomach on one occasion. With respect to KC's burned foot, Morris told her he had run a comb down the bottom of his foot while the skin was soft from a bath and the skin had peeled off. Morris justified the injury as punishment because KC had not jumped up and down as instructed. Balbuena also testified that Morris had hit KC on the side of the head, causing the injuries to his ear that had been reported to CPS.

Balbuena's testimony at trial, however, was at odds with a confession she gave three weeks after KC died, during which she claimed sole responsibility for his death. She confessed that she had been smoking methamphetamine, without Morris's knowledge, which made her feel "numb and stuff." She described how she became extremely angry after coming home for lunch on November 16 because KC vomited the Skittles she had given him as a reward for finishing his chicken nuggets and she was forced to clean it up. She claimed she was so angry she hit his head about 20 to 30 times in 30 minutes. She believed he got a bruise on his leg when she pushed him into the metal railing on his bed, and a black eye when she threw a plastic container of wipes at him.

Balbuena told her interrogator that she probably gave KC the fatal blow later that evening. According to this version, after work she was exasperated because KC had not taken a nap as planned. She dragged him out of bed and hit him against the wall. Enragedbecause he would not jump up and down in the way she demanded, she started spanking him. She enlisted Morris's help and he hit KC three times with a metal spatula. Finally, she made KC stand in the corner, but when he turned around, she pushed his face against the wall and hit him so hard it made a "huge sound" and his head bounced off the wall.

Morris gave a statement after KC was hospitalized but before he died. He assumed responsibility for KC's condition because he had placed him in the crib and he believed KC had fallen while climbing out of the crib. He admitted he made KC jump up and down for up to 30 minutes to punish him for various transgressions. In the late afternoon on November 16, KC fell and hit his eye while doing jumping jacks. Morris told KC to take a nap when he left to pick up Balbuena

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