Flores v. Stainer

• Decision Date: 31 July 2012
• Docket Number: 1:11-CV-00190 BAM HC
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Parties: JAMES BOOTS FLORES, Petitioner, v. MICHAEL STAINER, Warden, Respondent.

JAMES BOOTS FLORES, Petitioner,
v.
MICHAEL STAINER, Warden, Respondent.

1:11-CV-00190 BAM HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: July 31, 2012

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT
ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on June 12, 2008, of corporal injury on a child resulting in a traumatic condition (Cal. Penal Code § 273d(a)). (CT¹ 188, 236.) On August 6, 2008, Petitioner was sentenced to serve a determinate term of 8 years in state prison. (CT 236.)

Petitioner timely filed a notice of appeal. On February 10, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned

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decision. (See Resp't's Mot. Dismiss, Ex. 2.) Petitioner then filed a petition for review in the California Supreme Court. (See Resp't's Mot. Dismiss, Ex. 3.) On June 9, 2010, the petition was summarily denied. (See Resp't's Mot. Dismiss, Ex. 4.)

On February 3, 2011, Petitioner filed a federal habeas petition in this Court. Respondent moved to dismiss the petition as a mixed petition containing exhausted and unexhausted claims on May 19, 2011. Petitioner objected and moved for a stay. On August 4, 2011, the Court granted Petitioner's motion for a stay and held the petition in abeyance so Petitioner could return to state court to exhaust his unexhausted claims. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. (See Lodged Doc. No. 3.) On January 25, 2012, the petition was summarily denied. (See Lodged Doc. No. 4.)

Petitioner filed a First Amended Petition in this Court on February 16, 2012. The petition presents the following grounds for relief: 1) The admission of out-of-court statements by Petitioner's daughters as prior inconsistent statements rendered the trial fundamentally unfair and violated his due process rights; 2) The 9-1-1 call was testimonial in nature and its admission violated the Confrontation Clause of the Sixth Amendment; 3) The admission of the 9-1-1 call as a spontaneous declaration rendered the trial fundamentally unfair in violation of the Constitution; 4) Permitting the medical expert to rely on inadmissible hearsay to support his opinion violated the Confrontation Clause; 5) Admission of the 9-1-1 call without a limiting instruction that the evidence was not admitted for the truth of the matter violated Petitioner's constitutional rights; 6) The instruction on flight lessened the state's burden of proof and shifted the burden to Petitioner in violation of his due process rights; and 7) The trial court's refusal to strike a prior conviction arbitrarily deprived Petitioner of a state law right in violation of his due process rights. The Court then terminated the stay and directed Respondent to file a responsive pleading. On May 23, 2012, Respondent filed an answer to the petition. On June 20, 2012, Petitioner filed a traverse.

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STATEMENT OF FACTS²

Defendant and his wife, G., have two daughters, eleven-year-old C-1 and nine-year-old C-2. At 10:15 a.m. on April 15, 2007, G. called 911 and said she needed an officer to come to her residence.FN2 The 911 operator asked what was going on. G. said:

FN2. As we will discuss in issue II, post, defendant objected to the introduction of G.'s statements to the 911 operator as inadmissible testimonial hearsay under Crawford and the Sixth Amendment. The court found the statements were not testimonial and admissible for the truth of the matter as spontaneous declarations.
"Well I this morning I kept hearing my husband tell my daughter to help him on the internet and every little while he was coming in the room to tell her to help him and he was on the phone with the lady helping him and the next thing I hear is my daughter screaming and I come out and he is beating her and I get him off of her and I just see my daughter bleeding so I took the phone, called 911 and he chased me, he attacked me and then my other little daughter tried to [sic] us and he threw her to the ground ... "

The 911 operator asked G., "[W]here is he now?" G. replied: "He left." The 911 operator asked if anyone needed an ambulance. G. replied:

"I don't know I just, my daughter is bleeding from the eye and we couldn't call you guys because the damn phone was hooked to the internet." (italics added.)

The 911 operator asked for the caller's name and telephone number. G. identified herself and said she could not find her cell phone, she found "one of his cell phones," and she did not know the number because she just got a new telephone at her house. The 911 operator asked for defendant's name, age, whether he was drunk or high, if he had any weapons, the description of his clothing and car, and where he might have gone. G. answered the questions and said he did not have any weapons, and she did not know if he was drunk or high. She thought he might be at his aunt's house.
Fresno Police Officer Cardenas responded to the dispatch of a possible domestic disturbance and was advised the suspect left the scene in a vehicle. Officer Cardenas arrived at the residence and spoke to G., who was upset and "visibly shaken." G. "blurted" out that she and defendant were involved in a disturbance that occurred just before Cardenas's arrival.
Cardenas interviewed defendant's daughter, C-1, who said she was asleep when defendant woke her up that morning.^FN3 She got out of bed and found defendant in the living room. C-1 said defendant was working on the computer and he was on the telephone with "Donna" from technical assistance. C-1 said she went back to bed when she saw that defendant was on the telephone. Defendant called her back several times to help him on the computer. Defendant told C-1, "why can't you be more like Donna." C-1 said she replied, "I don't want to be like Donna."

FN3. As we will discuss in issue I, post, defendant's daughters testified at trial that they did not remember many of the details of the incident or even speaking to Officer Cardenas. The court overruled defendant's Sixth Amendment and hearsay

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objections and admitted their statements to Cardenas for the truth of the matter as prior inconsistent statements.

C-1 told Officer Cardenas that defendant got angry and upset at her, and he started to strike her. C-1 said defendant pulled her hair, forced her onto the couch, and continued to strike her. C-1 said defendant hit her face with his hands and maybe with a shoe.
C-1 said she yelled for help and her mother came out to help her. C-1 said G. pulled defendant away from her. G. had a cordless telephone or cell phone and walked away. C-1 said defendant pushed G., took the telephone from her, and told G. not to call the police. C-1 said she went into the bathroom and stayed there until she heard defendant go out the front door.
Officer Cardenas testified he also interviewed defendant's younger daughter, C-2, who said she was asleep in her bedroom and heard G. yelling "leave her alone or stop." C-2 said she went into the living room, and C-1 was sitting on the couch and G. was walking away from defendant. Defendant followed G. and pushed her. C-2 said she did not want her parents fighting so she got in between them. Defendant pushed C-2 and she landed in a laundry basket. C-2 said defendant took the cordless phone from G., and he said, "don't call the police or else I'll go to jail for a long time." C-2 said defendant walked out the front door, said "I'm not coming back," and left.
Officer Cardenas observed injuries to C-1's face and right eye, which were consistent with her description of being hit across the face. Another officer took photographs of C-1's injuries, which consisted of bruises on her right eye, scratches on her forehead, a few scratches on her right cheek, and red marks and a scratch on the right side of her back. Cardenas testified C-2 did not have any physical injuries, but she displayed "emotional distress" as she described what happened between her parents.
Officer Cardenas testified he did not speak to defendant that day because he had left the scene. A dispatch was sent out for defendant and his vehicle, and that he was wanted for child abuse and intimidating a witness.

C-1's trial testimony

Defendant was charged with count I, corporal injury to a child (§ 237d, subd. (a)) as to C-1, and count II, dissuading a witness from reporting a crime as to G. (§ 136.1, subd. (b)(1)). At trial, C-1 was called as a prosecution witness, and the prosecutor began the direct examination by asking about her school and the names of her friends. C-1 testified that she was too embarrassed to answer any questions.
In response to the prosecutor's questions, C-1 testified she did not remember when she was hurt and the police came to her house.^FN4 However, she remembered that she fell and hit her head on the floor, her right eye was hurt and red, and that her mom and dad were in the house when it happened. C-1 testified

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