CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This
Report and Recommendation is submitted to the Honorable
Virginia A. Phillips, United States District Judge, pursuant
to 28 U.S.C. section 636 and General Order 05-07 of the
United States District Court for the Central District of
California.
On
September 14, 2020, Petitioner, a state prisoner, filed a
“Petition for Writ of Habeas Corpus; Verification
Memorandum of Points and Authorities” and an
“Administrative Motion to Request Stay and Abeyance to
Permit Petitioner to Exhaust Unexhausted
Claims” (collectively “the Petition”). The
Petition purported to allege six claims for relief. In
January of 2021, Petitioner obtained a stay of these
proceedings for the purpose of exhausting certain unexhausted
claims alleged in the Petition (i.e., Claims 2 through 6).
See ECF Dkt. Nos. 1, 10-14. However, in June of 2022
Petitioner abandoned Claims 2 through 6, such that the matter
now is proceeding on Claim 1 only. See ECF Dkt. Nos. 24-25.
Claim 1 alleges that there was insufficient evidence to
support Petitioner's convictions. See Petition at 8,
13-23. Respondent filed an Answer on August 12, 2022.
Petitioner filed a Traverse on August 26, 2022.
An
Information charged Petitioner, Taylor Christian Ward
(“Ward”) and Travion Kellum with: (1) first
degree residential burglary of an inhabited dwelling occupied
by Judy Huang in violation of California Penal Code section
459 (Count 1); (2) attempted first degree residential
burglaries by attempting to enter inhabited dwellings
occupied by Samantha Hui and by Blaine Ohigashi, with the
intent to commit larceny and any felony, in violation of
California Penal Code sections 459 and 664 (Counts 2 and 3);
and (3) (as against Ward only) fleeing a pursuing peace
officer's motor vehicle while driving recklessly in
violation of California Vehicle Code section 2800.2 (Count 4)
(Clerk's Transcript [“C.T.”], ECF Dkt. Nos.
29-3 - 29-4, pp. 256-64). The Information further alleged
that, with respect to Counts 1, 2 and 3, Petitioner had
suffered prior convictions that qualified as serious felonies
under California Penal Code section 667(a), and also
qualified as “strikes” under California's
Three Strikes Law,
California Penal Code sections 667(b) - (i) and 1170.12(a) -
(d)[1]
(C.T. 261-64).
After a
joint trial of Petitioner and Ward, a jury found Petitioner
guilty of Counts 1 through 3, and found true allegations that
the burglary and attempted burglaries were of the first
degree (C.T. 466-68; Reporter's Transcript
[“R.T.”], ECF Dkt. Nos. 29-5 - 298, pp. 2151-54).
In bifurcated proceedings, Petitioner admitted that he had
suffered prior strike convictions (C.T. 489-90; R.T. 2154-55,
2401-03, 2412-16). [2] The Superior Court sentenced
Petitioner to a prison term of 45 years and four months to
life (C.T. 489-95; R.T. 2422-24, 2427-28).
The
California Court of Appeal affirmed the conviction, but
remanded the matter for the Superior Court to exercise
discretion whether or not to strike enhancements imposed
under California Penal Code section 667(a)(1)
(Respondent's Lodgment 2, ECF Dkt. No. 11-2;
see People v. Clark, 2019 WL 1373781 (Cal.App. Mar.
27, 2019)). The California Supreme Court summarily denied
Petitioner's petition for review (Respondent's
Lodgments 3-4, ECF Dkt. Nos. 11-3 - 11-4).
On
remand, the Superior Court resentenced Petitioner to a
determinate prison term of 24 years and eight months
(Respondent's Lodgment 21, ECF Dkt. No. 29-18). [3]
SUMMARY
OF TRIAL EVIDENCE
The
Court has conducted an independent review of the record and
has confirmed the accuracy of the following summary of the
evidence in People v. Clark, 2019 WL 1373781
(Cal.App. Mar. 27, 2019). See Nasby v. McDaniel, 853
F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v
Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking
factual summary from state court decision); Petition, pp. 5-8
(Petitioner adopting the California Court of Appeal's
summary of the evidence).
Both Alhambra Police Officer Henry Reyes and Detective Jack
Ng, testified about their extensive experience investigating
residential burglaries, describing a common type of
residential burglary known as “flocking.”
Typically in such a case, two or three perpetrators operate
together, have a getaway car, and choose a residential area
near a freeway but not near major intersections. One of the
accomplices will knock on the front door of a house, usually
between 9:00 a.m. and 6:00 p.m., in order to determine
whether anyone is home. If not, they attempt to enter the
residence through a window or back door, usually wearing
gloves. If there is an answer to their knock, an excuse is
given, such as looking for a particular person or to see if
the car parked on the street is for sale. Operating near a
freeway allows the perpetrators to enter and leave the area
quickly.
Judy Huang (Huang) testified that she lived on a quiet street
with little traffic, about three or four blocks from the
freeway. On September 14, 2016, she left her South 8th Street
house at about 8:30 a.m. to go to work. Some time that
afternoon, her mother called to ask her whether she had been
home, because the door was unlocked and open. Huang asked her
mother to wait for her outside and called the police. When
she arrived home the doors were unlocked and open, the
bedrooms were a mess with piles of clothes and blankets all
over the floor, drawers stood open, four back windows were
broken, and a pillowcase was missing. Huang's mother
testified that she left the house about 9:00 a.m., closed and
locked the doors and windows, and when she returned that
afternoon, the front door was unlocked and windows at the
back of the house were broken.
Later at the police station, Huang identified items belonging
to her, including a Louis Vuitton purse and
wallet, and a pair of shoes, with a combined value of over
$2,000, as well as some items of jewelry, a jewelry box, and
her mother's pink pillowcase.
Samantha Hui (Hui) lived about two miles away from
Huang's residence on South Parkview Drive, Alhambra. Hui
testified that on September 14, 2016, her white Honda[] was
parked on the street outside her home. It was not for sale
and had no sign. About 11:20 that morning, she heard a series
of loud knocks on her door, looked out her second-floor
window, and saw a person she had never seen before, later
identified as codefendant Ward. The doorbell had a camera
that was activated by ringing the doorbell, and Hui's
mother and stepfather had answered the door remotely. Ward
was mumbling and appeared to be hiding something in her
sweater. After a few moments Ward left, and Hui watched her
get into a black Toyota Camry. Hui noted the license plate
and called police, suspecting that Ward had been testing to
see if anyone was home.
Hui's stepfather, Eric Skjarstad, testified that when his
cell phone alerted him that someone had rung the front
doorbell that morning, the camera was activated and he spoke
through the cell phone to a person he later identified as
Ward. He testified that at first it was hard to understand
Ward, and after he asked her a second time what she was
wanted, Ward replied that there was a sign on the Honda or
Hyundai parked outside, and she was wondering if it was for
sale. He told her he did not know, that the car belonged to
his stepdaughter, and he could ask her. A video recording of
the conversation was played for [the] jury.
A few minutes later, Blaine Ohigashi (Ohigashi), who lived on
a quiet street about two blocks from the Hui/Skjarstad
residence on West Ross Avenue, heard someone banging on his
door. Initially he ignored it, but the banging continued, so
he looked out the window and saw someone in a red shirt.
Since he did not know the person, he did not answer the door.
Seconds later, he heard a police siren.
Officer Reyes was in uniform on patrol in a marked police car
when he was dispatched to a familiar area on Parkview Drive,
about five blocks from an onramp to the I-10 Freeway. He had
been given the license number that Hui had reported, which he
located on a car parked in front of Ohigashi's house on
West Ross Avenue. Officer Reyes saw a man he later identified
as [Petitioner] at the door of the residence, wearing a red
sweater and black pants. A person he later identified as Ward
was in the driver's seat of the car. A third person was
in the back seat of the car, lying down as though hiding.
Officer Reyes asked [Petitioner] to sit on the curb and was
heading to speak to Ward, when he saw that [Petitioner]
appeared to be using his cell phone. When he heard a
buzzing noise coming from near Ward, Officer Reyes told
[Petitioner] to stop, and asked Ward to turn off the car and
give him the keys. Ward said something about not being able
to turn off the car or that she could not find the keys, when
[Petitioner] stood up and began running eastbound. Ward drove
toward [Petitioner], stopped midblock to allow [Petitioner]
to enter the car on the passenger side, and then she drove
on. An audio/video recording of the scene taken from the
camera mounted on the patrol car was played for the jury.
Officer Reyes got into his car and gave pursuit. Ward
[traveled] about 10 to 15 miles per hour in excess of the
speed limit, driving recklessly and running approximately
four stop signs. She entered the I-10 freeway traveling at
least 65 on the 55-mile-per-hour ramp. By the time they
reached the 710 freeway, Ward was traveling at 80 to 90 miles
per hour. The I-10 freeway was crowded and traffic was moving
at about 50
...
