Bowen v. Giurbino

Decision Date19 February 2004
Docket NumberNo. EDCV03-0382-ABC(RC).,EDCV03-0382-ABC(RC).
Citation305 F.Supp.2d 1131
CourtU.S. District Court — Central District of California
PartiesJesus Patrick BOWEN, Petitioner, v. G.J. GIURBINO, Warden, Respondent.

Jesus Patrick Bowen, Imperial, CA, pro se.

David Delgado-Rucci, Deputy Attorney General, San Diego, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

COLLINS, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered granting the petition, and ordering petitioner be released from custody and discharged from all other adverse consequences in San Bernardino County Superior Court case FSB023867 unless the People choose to retry petitioner within 120 days of the date Judgment becomes final herein.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

JUDGMENT

Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,

IT IS ADJUDGED that the Petition for Writ of Habeas Corpus is granted, and petitioner shall be released from custody and discharged from all other adverse consequences in San Bernardino County Superior Court case FSB023867 unless the People choose to retry petitioner within 120 days of the date Judgment becomes final herein.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Audrey B. Collins, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND
I

On January 27, 2000, in San Bernardino County Superior Court case no. FSB023867, a jury convicted petitioner Jesus Patrick Bowen of one count of second-degree burglary in violation of California Penal Code ("P.C.") § 459 and one count of petty theft with a prior in violation of P.C. § 666. Clerk's Transcript ("CT") 120-21. In a bifurcated proceeding, petitioner admitted he had four prior "strike" convictions within the meaning of California's Three Strikes law, P.C. §§ 667(b)-(i), 1170.12(a)-(d). CT 70; Reporter's Transcript ("RT") 116-19. Petitioner was sentenced to state prison for the term of 25 years to life. CT 127-29.

Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the trial court's judgment in an unpublished opinion filed August 24, 2001. Lodgment no. 2. Petitioner then filed a petition for review in the California Supreme Court, which denied review on November 14, 2001. Lodgment nos. 3-4. Finally, petitioner filed a petition for a writ of certiorari in the United States Supreme Court, which denied the petition on March 10, 2003. Lodgment nos. 5, 7.

While his petition for certiorari was pending in the United States Supreme Court, petitioner filed a series of habeas corpus petitions in the California courts. His petition to the San Bernardino County Superior Court was denied in a written opinion filed April 10, 2002, Lodgment nos. 9-10, while his petitions to the California Court of Appeal and California Supreme Court were denied without comment on June 6, 2002, and March 19, 2003, respectively. Lodgment nos. 11-14.

II

In affirming the trial court's judgment, the California Court of Appeal made the following findings of fact regarding the circumstances of the offenses:1 On August 30, 1999, Brian Cosner, a Home Depot loss prevention officer, saw petitioner take two door hinges from a shelf and place them in the waistband of his pants. He also saw petitioner's wife, Margie Richardson, take one door hinge and two door viewers and place them in the waistband of her pants. Subsequently thereafter, both petitioner and his wife left the store without paying for the items, which were valued at $21.56.

Petitioner and Richardson were stopped by Cosner and Anthony Trujillo, another Home Depot loss prevention officer who was working undercover by posing as a customer in the store, outside the store. Petitioner and Richardson returned to the store, where the stolen merchandise was recovered. When asked about the stolen items, petitioner told Cosner he had come to the store to steal. Cosner then called the police.

Richardson testified on petitioner's behalf. She stated that she, not petitioner, stole the items and that he was unaware of the theft. She further asserted that, when they were apprehended and returned to the store, she told Cosner and Trujillo that she had taken the items, not petitioner. She denied that either she or petitioner said they had come to the store to steal. She also testified she tried to tell the police that she and not petitioner had taken the merchandise, but the police cited her for petty theft and arrested petitioner.

Petitioner also presented evidence in an attempt to show Cosner was confused about this incident and was mixing his facts from other shoplifting cases in which he had been involved. Petitioner also offered evidence that suggested Cosner could not recall how far away he was from petitioner when petitioner had taken the items. Petitioner further attempted to discredit Cosner's credibility by showing Cosner could not recall whether he had testified at the preliminary hearing.

III

On March 28, 2003, petitioner filed the pending habeas corpus petition. Respondent filed an answer to the petition on July 3, 2003, and petitioner filed his traverse on July 21, 2003.

Petitioner raises the following grounds for relief:

Ground One — Petitioner's trial counsel rendered constitutionally ineffective assistance by failing to: (a) properly investigate the defense of false arrest by determining whether the Home Depot store had a working videocamera that recorded the theft on tape, whether Cosner had a pattern of false arrests, and whether Trujillo actually recovered all five stolen items from Richardson as she testified; (b) rehabilitate Richardson on a crucial point of the defense of false arrest; and (c) request the sentencing court exercise its discretion to strike priors under the Three Strikes law.2 (Memorandum ("Memo.") 1-32);

Ground Two — Petitioner's trial counsel rendered constitutionally ineffective assistance by failing to object to the prosecutor's references to petitioner's prior theft-related conviction during closing arguments (Memo.34-35) Ground Three — Petitioner's due process rights were violated when the trial court erroneously instructed the jury with CALJIC no. 14.40 (Memo.36-37);

Ground Four — The trial court violated petitioner's due process rights by permitting the jury to learn of his prior theft-related conviction, even after petitioner stipulated to its truth (Memo.38);

Ground Five — The evidence at petitioner's trial was insufficient to support his convictions (Memo.39-40);

Ground Six — The trial court violated petitioner's due process rights by allowing petitioner's prior theft-related conviction to be admitted into evidence as an element of the petty theft with a prior offense and permitting comment upon it in closing argument (Memo.41-44); and

Ground Seven — Petitioner's sentence of 25 years to life for taking $21.56 worth of merchandise violates the Eighth Amendment's prohibition against cruel and unusual punishment (Memo.45-46).

DISCUSSION
IV

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") worked substantial changes to the law of habeas corpus. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997). Of specific importance are the revisions the AEDPA made to 28 U.S.C. § 2254(d), which now provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim[¶] (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [¶] (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Further, under the AEDPA, a federal court shall presume that a determination of factual issues made by a state court is correct, and petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The California Supreme Court reached the merits of petitioner's claims when it denied his petitions for review and habeas corpus without citation to authority or a written opinion. Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). However, "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000), cert. denied, 534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001). Thus, in addressing Grounds Two and Seven, this Court must consider the reasoning of the California Court of Appeal, which issued a written decision denying those claims on the...

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