Harris v. Garcia, C 01-21193 RMW (PR)

• Decision Date: 17 August 2010
• Docket Number: No. C 01-21193 RMW (PR),C 01-21193 RMW (PR)
• Citation: 734 F.Supp.2d 973
• Parties: Nicholas HARRIS, Petitioner, v. Sylvia GARCIA, Respondent.
• Court: U.S. District Court — Northern District of California

734 F.Supp.2d 973 Nicholas HARRIS, Petitioner, v. Sylvia GARCIA, Respondent. No. C 01-21193 RMW (PR). United States District Court, N.D. California. Aug. 17, 2010.

Nicholas Harris, Corcoran, CA, pro se.

Christopher William Grove, Attorney at Law, San Francisco, CA, for Respondent.

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S WRIT FOR HABEAS CORPUS

RONALD M. WHYTE, District Judge.

On April 9, 1997, petitioner was convicted of two counts of grand theft, one count of attempting to dissuade a witness in furtherance of a conspiracy, one count of access card forgery, and one count of escape from a county jail. After unsuccessfully seeking relief in the California courts, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging all five convictions. This court found that the petition stated eleven cognizable claims under § 2254 and issued an order to show cause why this court should not grant the writ. Respondent filed an answer addressing the merits of the petition, and petitioner filed a traverse. Thereafter, on September 18, 2007, the court ordered respondent to file a supplemental answer showing cause why the petition should not be granted based upon an additional claim raised in petitioner's amended petition, which claim challenges petitioner's sentence. Respondent filed a supplemental answer, and petitioner filed a supplemental traverse.

After reviewing the papers and the record, the court finds that petitioner is entitled to habeas corpus relief as to his conviction of one of the two counts of grand theft. Accordingly, the court grants the petition to the extent it seeks relief from the state court judgment on that count. The court finds, however, that petitioner is not entitled to habeas corpus relief with respect to his conviction on the four remaining counts, and denies his petition with respect to his conviction on such counts. Based upon the sentences he received on the four remaining counts, upon which habeas relief is not granted, petitioner's continued custody in is lawful.

BACKGROUND

On March 18, 1997, petitioner was brought to trial on five separate felony charges, and allegations of four prior "strike" convictions. Four of the five charges against petitioner stemmed from his and his girlfriend's (Gina Miller) relationships with a series of elderly gentlemen, whom the couple was accused of defrauding.The prosecution formally charged petitioner and Miller with grand theft by false pretenses from two such gentlemen, Nicholas Brayevich and Wilbur Johnson, and additionally introduced evidence of three uncharged similar incidents involving Ned Wyss, Robert Dodd, and Jack McCallister. In addition to the theft charges, petitioner was charged with access card forgery with respect to Wilbur Johnson, and both petitioner and Miller were charged with attempting to dissuade Nicholas Brayevich from testifying. Petitioner was also charged with escaping from the Santa Clara County jail while awaiting trial on the above charges.

Petitioner and Miller were tried together, and the evidence admitted against them was voluminous. The California Court of Appeal summarized the evidence presented to the jury in a "much abridged" format as follows:

Nicholas Brayevich, Counts 1-4

In September 1994, 84-year-old bachelor Nicholas Brayevich shared a house with his sister Stella in the Willow Glen area of San Jose. The day after Stella was moved into a convalescent hospital and Brayevich was left alone in their house, defendant Miller, a total stranger, approached him as he was gardening, identified herself as Selena Bay, and asked to use his bathroom. Brayevich allowed her to do so, and after she came out the two stood in the kitchen and talked.

Miller repeated the visit a few days later, and continued to visit Brayevich, uninvited, on a regular basis. She arrived and left by taxi and did not explain the reason for her visits. From questioning Brayevich, she found out that one of his sisters was dead and the other was in a convalescent hospital. She asked whether he was lonely. She told him that she was from Greece and was alone in this country. She said she had no family and she was single, a virgin, and that she also lived alone.

The second time Miller came to Brayevich's house, he saw her "opening drawers and shuffling through clothing and this and that, looking in the closets." Brayevich "should have objected", but he thought she was "young" and "innocently curious". Nevertheless, he also thought she was "quite audacious," rummaging through drawers where he kept his business records.

Once, he was surprised to see Miller at the convalescent hospital standing at the door of Stella's room looking in at her. Miller had not accompanied Brayevich to the hospital nor had she told him she was planning to go there.

About the sixth or seventh time Miller visited Brayevich, she brought along [petitioner] Harris, whom she introduced as "Sam," an "old" and she implied, undesirable friend from Los Angeles. She never admitted Harris was her boyfriend and "scoffed at the idea" when Brayevich asked if she were married to him.

In reality, she was living with defendant Harris "as husband and wife" along with her two children, three-year-old Moses and four- or five-year-old Eric. Harris had been her boyfriend for four or five years and they had lived together in Los Angeles, San Carlos, and several addresses each in Sunnyvale, San Jose, and Campbell.

Brayevich regularly received money from his investments and had accounts at Bank of the West, American Savings, and Smith Barney, among other financial institutions. He lived frugally, paying cash or "do[ing] without." He did not shop at expensive stores like Nordstrom's, Macy's, or the Emporium. Miller convinced him to apply for credit cards, and to take her shopping at variousdepartment stores. She "knew the best places" to shop. "Generally I followed her like a faithful puppy and she would go ahead of me and do the shopping."

Miller asked for and received cash (she had a "liking for hundred dollar bills"), which Brayevich took from bank accounts, his Smith Barney account, and as cash advances on his recently-acquired American Express and Union 76 credit cards. The cash amounts ranged from $500 to $25,000.

Miller also asked for and received a cashier's check for $51,815 for a down payment on a house, a $45,000 Chevy Suburban (to which Brayevich retained title in his name), almost $8,000 for a 1977 Mercedes convertible and a new top, a television set and stereo equipment costing $5,651.95, and a $21,249.90 diamond "engagement" ring. Miller told Brayevich the ring would make their relationship more "bonding" or "binding".

Brayevich never intended to marry Miller even though she talked about doing so. Brayevich admitted to a "sexual" relationship with Miller, but it consisted of hugging, kissing, and back rubbing. Miller always wore underwear, at least, and there was no sexual intercourse. Brayevich spent money on Miller because he wanted to "put a hold on her" and keep her affection.

In addition, Brayevich gave Harris cash because he thought Miller wanted him to and paid credit card bills for vehicle rentals, airplane tickets, jewelry, clothing, and other articles run up by Miller and Harris without permission.

Brayevich eventually realized defendants were engaged in a "skin game" and they "were out to get as much money" as possible from him. He would never have maintained the relationship and he would not have given Miller and Harris money if he had known that Miller used different names, had two children, and was living with Harris.

The "gig [was] up" as Brayevich put it when Brayevich's nephew and next door neighbor, Ilko Vucia, called the San Jose police. On April 5, 1995, Officer Gordon Bowen contacted Brayevich who introduced Miller, who was visiting him, as Selena Bay. Bowen set up surveillance around Brayevich's house and observed Miller leave the residence, walk around the corner and get into a car which drove off. It appeared that she had prearranged for someone to pick her up.

On August 16, 1995, Bowen and his partner contacted Brayevich and Miller as she drove Brayevich's car into his driveway. Brayevich was upset and walked to the side of the house. Miller identified herself to Bowen as "Selena Brayevich" and said she had no driver's license. She became angry and aggressive when Bowen said he knew her name was not Brayevich. She eventually identified herself to officers as Gina Miller and was fingerprinted and photographed.

On August 24, 1995, Bowen and Officer Peter Scanlan contacted Brayevich and informed him of Miller's identity and the existence of her two small children. Brayevich told Scanlan that Miller said she was a virgin. He did not understand "how could a young lady be so deceitful." Scanlan said Brayevich seemed both "sad" and "somewhat relieved" that he knew the truth about Miller and Harris. Brayevich immediately stopped spending money on them.

In September 1995, Brayevich received several telephone calls from [petitioner and Miller]. Scanlan provided him with a tape recorder and he taped a number of the calls. Harris wanted to know if Brayevich was going to "press charges" and asked him to lie to thepolice because he had enough problems. Miller called Brayevich and asked him "to forget the whole thing." She told him she loved him and cared for him, and that he "gotta stop those cops honey." Eventually, she wound up saying "if I go to jail, I'm gonna kill you! I swear! I don't want to go to jail honey. I don't want to."

Wilbur Johnson, Counts 5 and 6

Eighty-two-year old Wilbur Johnson was a retired accountant who lived on a fixed income and who was very careful with his money. Two months before Wilbur died in November 1995, his son, Dave, who was accustomed to sending a lot of time with his father, moved in and lived with him until his death.

Afterward, Dave found various charge receipts among Wilbur's papers for the purchase of items which Wilbur

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