Freeman v. Becerra, 1:21-cv-00195-JLT (HC)

• Decision Date: 14 October 2021
• Docket Number: 1:21-cv-00195-JLT (HC)
• Parties: PAUL MARK FREEMAN, Petitioner, v. XAVIER BECERRA, Attorney General, Respondent.
• Court: U.S. District Court — Eastern District of California

PAUL MARK FREEMAN, Petitioner, v. XAVIER BECERRA, Attorney General, Respondent.

No. 1:21-cv-00195-JLT (HC)

United States District Court, E.D. California

October 14, 2021

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE

ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

JENNIFER L. THURSTON CHIEF UNITED STATES MAGISTRATE JUDGE

Petitioner was convicted by jury trial for DUI, with a prior, and is serving a sentence of eight years and four months. He filed the instant habeas petition challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and DENIES the petition.

I. PROCEDURAL HISTORY

Petitioner is in custody pursuant to a Stanislaus County Superior Court judgment imposing a term of eight years and four months after jury conviction for DUI, with a prior, inter alia. (Doc. 9 at 2.) Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), and held that “[t]he abstract of judgment must be corrected as to case No. 1491573, to reflect defendant's conviction in count 2 of driving with a blood-alcohol level of 0.08 or greater in violation of section 23152, subdivision (b), and that the consecutive sentence of eight months was stayed pursuant [to] Penal Code section 654.” (LD^[1] 7-12); People v. Freeman, No. F077543, 2020 Cal.App. Unpub. LEXIS 6501, at *48 (Oct. 6, 2020). The Fifth DCA affirmed the judgment in all other respects. Id. Subsequently, the Fifth DCA entered an order modifying the opinion and denying rehearing. (LD 7-13); People v. Freeman, No. F077543, 2020 Cal.App. Unpub. LEXIS 7324 (Nov. 3, 2020). On December 30, 2020, the California Supreme Court denied discretionary review. (LD 7-14); People v. Freeman, No. S265559, 2020 Cal. LEXIS 8866 (Dec. 30, 2020).

On February 17, 2021, Petitioner filed the instant habeas petition in this Court. (Doc. 1.) Respondent filed an answer on April 19, 2021. (Doc. 9). On June 16, 2021, Petitioner filed a traverse. (Doc. 12.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision^[2]:

THE 2012 CONVICTION AND PROBATION

(Case No. 1431988)

On January 14, 2011, defendant was driving with his fiancée after leaving a bar. Defendant lost control of the car, swerved, veered to the right, spun out, and hit a light pole. Defendant and his fiancée were ejected. She suffered "significant injuries" including fractures in two vertebrae, a fractured pelvis, and a "likely brain injury." Defendant's blood-alcohol content was determined to be 0.22 percent. Defendant admitted drinking Red Bull and vodka.

On May 1, 2012, a complaint was filed that charged defendant with count 1, felony DUI causing injury (§ 23153, subd (a)), and count 2, felony driving with a blood-alcohol content of 0.08 percent or higher causing injury (§ 23153, subd. (b)), with special allegations that his blood-alcohol level was 0.15 percent or higher (§ 23578), and the victim suffered great bodily injury (Pen. Code, § 12022.7, subd. (a)).

On May 18, 2012, defendant pleaded no contest to count 1, felony DUI causing injury (§ 23153, subd. (a)) and admitted the special allegations that his blood-alcohol level was 0.15 percent or higher and the victim suffered great bodily injury. The court dismissed the other allegations, suspended sentence, and placed him on felony probation for five years subject to certain terms and conditions, including serving 180 days in jail, obeying all laws, and not consuming alcohol.

THE COLLISION AT THE TRAFFIC LIGHT

(Case No. 1491573)

On the night of August 22, 2015, Ms. Gutierrez was driving on Burney Street in Modesto in her Chrysler Town and Country van. She stopped at a red light at the corner of G Street. There was a car in front of her that also stopped at the intersection.

At the moment the traffic light changed to green, the car in front of her drove forward. Before Ms. Gutierrez could move forward, her vehicle was suddenly hit from behind by another vehicle. The impact forced her knees to hit the steering column. She felt immediate pain in her arms as she was pushed forward.

Ms. Gutierrez turned onto G Street and parked her vehicle. Ms. Gutierrez testified it was dark, but the area was illuminated by streetlights. The driver of the second car also turned onto G. Street, but the driver did not stop, roll down his window, or try to make contact with Ms. Gutierrez. Instead, the vehicle drove around the driver's side of Ms. Gutierrez's car and left the area. As the vehicle drove past her, Ms. Gutierrez determined it was a dark-colored Chrysler 300 with "nice shiny rims." She recognized the model because she had been interested in buying that type of car.

As the Chrysler 300 drove by her, Ms. Gutierrez was also able to see the driver "for a quick second" because he looked at her. She described a man with "darker hair" and "not a dark complexion but not a light complexion either." She saw the driver's face "very quickly" until the driver placed his hand over his face and obstructed her view.

As the Chrysler 300 drove away, Ms. Gutierrez tried to signal the driver by honking her horn. He did not stop and kept driving, and he was going "too fast, like swerving away." He drove toward the La Loma area and never returned to the scene.

The initial investigation

At 10:50 p.m., Modesto Police Officer David Chamberlain received a dispatch to respond to a hit and run collision at the intersection of Burney and G Street in the La Loma area. At 11:09 p.m., Chamberlain arrived at the scene and contacted Ms. Gutierrez.

Officer Chamberlain testified Ms. Gutierrez reported a dark car with chrome rims hit her vehicle, and a dark-skinned male with short hair drove it. Chamberlain determined her vehicle had minor damage from the rear-end collision. Chamberlain reported the incident as a noninjury collision because Ms. Gutierrez did not appear injured or ask for an ambulance.

Ms. Gutierrez was never asked to identify anyone as the driver and testified she would not be able to do so.

Ms. Gutierrez's injuries

Ms. Gutierrez testified she suffered bruises on her chest from the seat belt. She did not go to the hospital that night. A few days after the crash, Ms. Gutierrez felt bursitis in her right hip from being forced against the seat belt. Her legs started to hurt and swell, and she had trouble walking. She went to her physician and received cortisone shots. At the time of trial, she limped and continued to have leg and hip pain. Ms. Gutierrez's physician testified the bursitis in her hip was unlikely to improve over time and could lead to arthritis.

Defendant's collision with the parked truck

On the same night, Shelley Farmer was at her home in Modesto. Her husband's unoccupied white truck was parked on the street in front of their house. Ms. Farmer heard a big crash. She looked outside and saw that a black or dark blue vehicle had just hit her husband's truck with such force that the truck had been pushed forward by two houses, veered right, and ended up on a neighbor's lawn. The truck was totaled.

Ms. Farmer testified the vehicle that hit the truck was a "really nice car" with "nice rims," and it was "in pieces" because of the collision.

Ms. Farmer told her family to call 911 and ran out to the car that caused the collision. The driver was the only occupant, and he was sitting in the car. He had dark hair.

Ms. Farmer asked the driver if he was okay. The driver, later identified as defendant, was "really, really confused. He said he was being chased and that's why he was going so fast. They wanted his rims. I did ask if he was drinking because I could smell it. He said he did have a couple of drinks, and I asked if he had car insurance, and he said yes."

Tim McDonald, another neighbor, approached the car and talked to defendant, who was still in the driver's seat. He seemed calm but was searching around the interior for his belongings. McDonald asked if he was okay. Defendant said he was alright, but also said he was being chased by someone in a green car. McDonald asked if the neighborhood residents were safe from whoever was chasing him, and defendant said it was okay.

Arrest of defendant

At 10:45 p.m., Modesto Police Officer David Wallace received a dispatch to respond to Ms. Farmer's house about a collision. Ms. Farmer's house was in the La Loma residential area, and between a quarter to a half-mile from the intersection of Burney and G Street, where Ms. Gutierrez's vehicle had been hit. Wallace had heard on the radio about another collision nearby.

Ms. Farmer's house was also about a mile from a large music event known as "X Fest 2015" that was happening in downtown Modesto that night. The annual event required extra police presence and roving DUI patrols because of the high number of drunk drivers leaving the event.

Officer Wallace arrived at Ms. Farmer's house and found defendant sitting in the driver's seat of a 2007 black Chrysler 300. Wallace testified defendant seemed impaired. His eyes were bloodshot and watery, the odor of alcohol was on his breath, and his speech was slurred. Defendant was argumentative and staggering.

Ceres Police Officer Keith Kitcher was on patrol as part of that night's extra DUI enforcement and received a dispatch at 10:50 p.m. to respond to Ms. Farmer's house. When he spoke to defendant, he immediately noticed defendant's eyes were red and watery, detected the relatively strong odor of an alcoholic beverage on his breath, and believed he was impaired.

Officer Kitcher conducted two field sobriety tests and defendant's reactions were consistent with being under the influence.

Defendant was arrested. Defendant submitted two breath tests at the scene. The first test was given

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