Dahlberg v. Sandor

• Decision Date: 31 October 2011
• Docket Number: 1:11-cv-00967-LJO-DLB (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: KEVIN DAHLBERG, Petitioner, v. GARY SANDOR, Respondent.

KEVIN DAHLBERG, Petitioner,

v.GARY SANDOR, Respondent.

1:11-cv-00967-LJO-DLB (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: October 31, 2011

FINDINGS AND RECOMMENDATION

REGARDING PETITION FOR WRIT OF

HABEAS CORPUS

[Doc. 1]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹

BACKGROUND

Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of driving under the influence causing injury (Veh. Code § 23153, subd. (a); count 1) and driving under the influence, while having a blood alcohol content of .08 percent or higher, causing injury (Veh. Code § 23153, subd. (b); count 2). As to each count, the jury found true the allegations that Petitioner personally inflicted great bodily injury on Sergeant Kerry Kelly (Pen. Code § 12022.7, subd. (a)). In a bifurcated proceeding, the jury found true the allegations that, in the past 10 years, Petitioner had suffered two prior convictions for driving under the influence (Veh. Code § 23566). Petitioner was sentenced to a total term of six years in prison.

Petitioner filed a timely notice of appeal. The California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 4.) On December 9, 2010, the Court of Appeal denied a petition for rehearing. (LD 6.)

On December 28, 2010, Petitioner filed a petition for review in the California Supreme Court. (LD 7.) The petition was summarily denied March 2, 2011. (LD 8.)

Petitioner filed the instant petition for writ of habeas corpus on June 13, 2011. Respondent filed an answer to the petition on September 20, 2011, and Petitioner filed a traverse on October 13, 2011.

STATEMENT OF FACTS²

On appeal, [Petitioner] contends: (1) the trial court erred in precluding him from arguing that Sergeant Kelly's conduct was a superseding cause of his own injuries; (2) the trial court made two erroneous evidentiary rulings that were cumulatively prejudicial with respect to his defense that he was not the driver of the van involved in the collision that injured Sergeant Kelly; (3) insufficient evidence supports the great bodily injury enhancement because there was no evidence [Petitioner] personally inflicted Sergeant Kelly's injuries; and (4) the Vehicle Code section 23566 enhancement must be reversed because the trial court did not properly identify [Petitioner] as the person who suffered the underlying prior convictions for driving under the influence, and the evidence of the prior convictions constituted inadmissible hearsay and violated the Sixth Amendment right to confront witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We affirm.

FACTS

On April 19, 2008, beginning around 6:00 p.m., [Petitioner] visited several bars in Visalia and became intoxicated. He arrived at the Green Olive bar around 7:00 p.m. and ordered a shot of tequila and a bottle of beer. The bartender, Bobbi Cansler, took the drinks away from [Petitioner] before he had a chance to consume them after she saw he was already ver intoxicated.

Around 8:00 p.m., Cansler saw two of her customers, Daniel Hays and Lisa Silva, take [Petitioner] to the front door and try to give him some water. They then took [Petitioner] outside to sleep in his van and brought water out to him. Silva later came back to the bar and got a sandwich and a towel to take out to [Petitioner].

Hays and Silva both testified that when they saw [Petitioner] at the Green Olive bar he appeared very drunk. He was staggering around and slurring his words. Hays took [Petitioner's] keys from him and told him, "You're not driving." He also offered to drive [Petitioner] wherever he wanted to go.

While Silva was playing pool with her pool league, Hays played a game of pool with [Petitioner]. [Petitioner] was so drunk, Hays had to keep him from falling down numerous times. Afraid [Petitioner] was going to fall and crack his head open on the pool table, Hays told [Petitioner] he needed to go sleep in his van. Around 8:00 p.m., Hays took [Petitioner] to his van, and [Petitioner] went to sleep on the floor between the front seats. Hays went out to the van to check on [Petitioner] a few times and brought [Petitioner] a pitcher of water.

At approximately 10:00 p.m., Hays and Silva left the Green Olive bar to give [Petitioner] a ride home. Hays drove [Petitioner's] van with [Petitioner] in the passenger seat, while Silva followed in her car. [Petitioner] asked Hays to drive him to the Capri Motel, which was not far from the bar. Right before they reached the motel, [Petitioner] asked Hays to park his van in the parking lot of the Corner Café, where there was a security light and the van would be in plain view. The Corner Café was right next door to the Capri Motel.

After parking [Petitioner's] van, Hays took the keys out of the ignition and handed them to [Petitioner]. He assumed [Petitioner] was going to go to the motel and sleep like he said he was going to do. After taking [Petitioner] to the Corner Café parking lot, Hays and Silva drove back to the Green Olive bar because Silva had one more game left to play with her pool league. Silva testified that when they left [Petitioner], [Petitioner] was still seated in the passenger seat of his van.

Around 10:30 p.m., Kerry Kelly, a sergeant with the Tulare County Sheriff's Department, came across [Petitioner's] van, which was facing north and parked vertically across the westbound lane of Avenue 320, a rural two-lane road outside of Visalia. The van had no lights on and there were no street lights or other sources of light near the location.

Sergeant Kelly parked his patrol car on the shoulder of the eastbound lane and pointed his spotlight in a northern direction to light up the van and its license plate. Sergeant Kelly then got out of his car and approached the van on the passenger side. He looked inside the van with his flashlight and saw [Petitioner] lying asleep on the floor between the front driver and passenger seats. Sergeant Kelly testified that it appeared as though [Petitioner] had been sitting in the driver's seat and had fallen out, noting that [Petitioner's] feet were resting on the floorboard of the driver's seat. The last thing Sergeant Kelly remembered before waking up in the hospital was knocking on the window and [Petitioner] looking up at him.

While Sergeant Kelly was outside [Petitioner's] van, another car traveling in the westbound lane collided with the van. The driver, Salvador Valdovinos, testified that around 10:30 p.m., he was driving home on Avenue 320, when his vision of the road in front of him was obscured by "the highbeams of another car." Later in his testimony, Valdovinos confirmed that the bright lights he saw came from Sergeant Kelly's vehicle, which was parked on the side of the road.

Because he could not see ahead of him, Valdovinos tried to focus on the center yellow line in order to stay in his lane. Once he passed the bright lights, he suddenly saw [Petitioner's] van parked across the westbound lane. Valdovinos pressed his brakes but his car did not stop in time. His car slid and slammed into the rear portion of [Petitioner's] van on the passenger side.

After he slammed into [Petitioner's] van, Valdovinos got out of his car tocheck if everyone was alright. He found [Petitioner] and Sergeant Kelly, both unconscious, lying on the ground off to the side of the road. After the collision, [Petitioner's] van was facing east and Valdovinos's car was "totaled."

After receiving a call from dispatch just after 10:30 p.m., Frank Freeman, an officer with the California Highway Patrol, responded to the collision. When he arrived, he saw two wrecked vehicles and a sheriff's patrol vehicle. Medical personnel were also on the scene. [Petitioner] and Sergeant Kelly were lying on the north shoulder of the road.

Based on his investigation of the accident scene, Officer Freeman opined that, prior to the accident, [Petitioner's] van was parked in the middle of the road, facing north. It was mainly in the westbound lane and partially on the shoulder. Valdovinos was unable to stop in time and collided with the right side of [Petitioner's] van. The resulting damage did not indicate that Valdovinos had been traveling at an excessive rate of speed but rather had been driving between 50 and 55 miles per hour. The speed limit on Avenue 320 is 55 miles per hour.

Officer Freeman opined that [Petitioner] and Sergeant Kelly had been standing near the left rear of the van when the collision occurred. Upon impact, the van had swung to the left in a westerly direction, hitting [Petitioner] and Sergeant Kelly and whipping them on the shoulder of the road.

After the accident, Officer Freeman interviewed [Petitioner] at the hospital. [Petitioner] told the officer he did not have much recollection of the accident. He remembered being awoken by Sergeant Kelly and directed to get out of the van. [Petitioner] did not know how he got to Avenue 320. He was so drunk that night, he blacked out.

[Petitioner] told Officer Freeman that he went to three different bars that night, ending with the Green Olive bar. [Petitioner] admitted that he drove from one bar to the other and that he had been drinking tequila and Budweiser.

About 10 days after the accident, Officer Freeman drove [Petitioner] from the hospital to the jail. At this time, [Petitioner] told Officer Freeman that he had money that was no longer in the van. However, he did not ask the officer to file a report concerning the missing money.

Toxicological tests revealed that when [Petitioner's] blood was drawn after the accident at 12:30 a.m., he had a blood alcohol content of .20 percent. Assuming he stopped drinking around 8:00 p.m., his blood alcohol content at 10:30 p.m. would have been around .26 percent.

The Defense

The defense argued there was insufficient evidence [Petitioner] drove his van out to Avenue 320, and posited a theory that Hays and Silva were the ones who drove [Petitioner] out to the country, possibly to

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