ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS AND DECLINING
(Doc. 10)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Leanne LeMon of the office of the California Attorney General. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 7, 9.)
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Madera, following his conviction for evading arrest with two prior serious or violent felonies. (Clerk's Tr. 271-72.) Pursuant to California Three Strikes Law, on December 21, 2009, the trial court sentenced Petitioner to serve an indeterminate term of twenty-five years to life in jail. (Id.)
Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, on June 23, 2010. (Lodged Doc. 6.) On June 1, 2011, the court affirmed the judgment. (Answer, Ex. A.) Petitioner filed a petition for review with the California Supreme Court on June 27, 2011. (Lodged Doc. 9.) The Supreme Court summarily denied the petition on August 10, 2011. (Lodged Doc. 10.)
Petitioner proceeded to seek post-conviction collateral relief in the form of petitions for writ of habeas corpus. On March1, 2012, Petitioner filed a petition for writ of habeas corpus in Madera County Superior Court. The petition was denied in a reasoned decision on April 6, 2012. (Lodged Docs. 11-12.) Petitioner filed a petition for writ of habeas corpus with the Fifth District Court of Appeal on May 17, 2012. The Petition was denied on September 6, 2012. (Lodged Doc. 13-14.)
Petitioner filed the instant federal habeas petition on September 10, 2012. (Pet., ECF No. 1.) In his petition, Petitioner presents five claims for relief: (1) that the trial court erroneously denied his motion for mistrial and to exclude witnesses; (2) that the state court's decision to exclude impeachment evidence violated Petitioner's right to present a defense; (3) that the prosecutor committed misconduct in discussing the case with the peace officers prior to their testimony; (4) that the trial court abused its discretion in denying Petitioner's motion to exclude a previous strike; and (5) that his sentence violates the prohibition on cruel and unusual punishment.
Respondent filed an answer to the petition on October 31, 2012. (Answer, ECF No 10.) Petitioner did not file a traverse. The matter stands ready for adjudication.
II. STATEMENT OF THE FACTS1
Following a jury trial, appellant William Charles Clerk (who is also known as William Charles Lane) was found guilty of felony driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officers (Veh. Code, § 2800.2, subd. (a)), and the allegation that appellant had suffered two prior strikes (Pen. Code, § 667, subds. (b)-(i))[n1] was found true. The trial court sentenced appellant to 25years to life in state prison.
FN1: All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court prejudicially erred when it: (1) denied his motion for mistrial and/or failed to exclude specific testimony; (2) abridged his right to present a defense; (3) failed to find that the prosecutor had committed misconduct; (4) denied his request to call the prosecutor as a witness; (5) improperly admitted photographs into evidence; (6) failed to strike his prior strike convictions; and (7) did not understand its discretion to reduce his conviction to a misdemeanor. Appellant also contends the sentence imposed constitutes cruel and/or unusual punishment. We disagree and affirm.
FACTS
At approximately 10:30 p.m. on March 2, 2006, California Highway Patrol (CHP) officers Mayolo Banuelos and Rafael Rivera were in uniform and on duty in a marked patrol vehicle. Banuelos was merging onto southbound Highway 99 in Madera County when he noticed two motorcycles travelling together at a high rate of speed. Banuelos paced the motorcycles and clocked their speed at 90 miles per hour. A records check revealed that one of the motorcycles was stolen. Banuelos decided to instigate a stop and asked for vehicle and helicopter or airplane assistance.
Once the backup vehicle and the helicopter were in place, Officer Banuelos activated the patrol car's lights while the helicopter put a spotlight on the motorcycles. In response to Officer Rivera's request over the public address system, the motorcycle driven by appellant slowed down and began to pull over. But appellant then sped off, and Banuelos turned on his siren and followed appellant.
Appellant turned off the headlights of the motorcycle and continued at a high rate of speed. Officer Banuelos travelled at 135 miles per hour, but was unable to see the motorcycle. When appellant crossed from Madera County into Fresno County, two Fresno CHP officers, Jared Banta and Chad Moran, were waiting and took over the pursuit. While pursuing appellant, Banuelos observed appellant commit several Vehicle Code violations, namely driving without lights at night, going over the speed limit, and traveling in excess of 100 miles per hour.
Officers Banta and Moran were on duty at Olive Avenue and Highway 99 when they saw appellant pass them going at least 130 miles per hour. The officers, with lights and sirens activated on their patrol car, chased appellant on southbound Highway 99 to southbound High 41 and then to Adams Avenue, where appellant turned around and proceeded north on Highway 41 back to Highway 99 northbound. Appellant exited at Golden State Boulevard and again turned south on Highway 99.
When appellant exited at Belmont Avenue, he slowed down, but did not stop at the stop sign. Instead, he traveled north on a frontage road and reentered southbound Highway 99, but travelling north on the shoulder of the lanes. Appellant exited at McKinley Avenue, using the on-ramp as an off-ramp, and ran the stop sign at McKinley and Hughes. The motorcyclecame to a stop when the patrol car was able to cut him off.
Officer Orie Lamb, a flight officer who was in the helicopter with a pilot, followed appellant's course from the air. During the flight, Lamb videotaped the pursuit, which was played for the jury. During the pursuit, Lamb observed appellant driving at "extreme speeds," failing to stop at several stop signs, and driving the wrong way on the freeway.
When appellant finally stopped and got off the motorcycle, Officer Banta pointed his gun at him and forced him to the ground. Because appellant continued to struggle, Banta pepper sprayed him. Banta did not kick or hit appellant with his baton.
Officer Banuelos arrived on the scene and transported appellant to jail. While in the patrol car, appellant told Banuelos that he saw the lights on the patrol car, but decided to "mash out," meaning to take off or get away from the police. Appellant gave no other reason for failing to stop and pull over.
Defense
Appellant, who admitted he had been convicted of two prior felonies, testified in his own defense that he was riding a motorcycle on Highway 99 when he saw a CHP vehicle behind him. The vehicle turned on its lights and appellant began to pull over, but decided against it because there was no one else around. According to appellant, he exited the highway to look for somewhere to stop where he would not be by himself. Appellant was not from the area and did not want to stop in an isolated place.
When appellant did stop, Officer Banta had a gun, although appellant told him he was "already down." Banta then kicked him, stomped on him, hit him with his baton, and pepper sprayed him.
On cross-examination, appellant admitted that, during the pursuit, he was speeding, the lights on the motorcycle were going "off and on," he "really doubt[ed]" that he used his turn signals, that he didn't come to a complete stop at several stop signs, and that he got onto the freeway by using an off-ramp.
Officer Banuelos was recalled and testified that, prior to his testimony, he spoke to the deputy district attorney, who told him what questions she would be asking him when he was on the stand. Banuelos did not discuss the case with the other officers and the deputy district attorney "at the same time."
Rebuttal
Officer Banuelos testified that appellant did not tell him he failed to stop because he was fearful. Nor did he say he was looking for a place to stop that was less isolated. After being arrested, appellant complained about the pepper spray, but did not mention any other injuries.
Correctional officer Lisa Morales did a medical screening on appellant when he was brought to the jail. At the time, appellant complained of left shoulder, back, and right knee pain. He had irritation inhis right eye due to the pepper spray but was not taken to the hospital because he had no major medical problems. The shift supervisor, Sergeant Wendell Davis, saw no visible signs of trauma on appellant when he was admitted to the jail.
Stipulations
The parties stipulated that the pursuing officers had a reasonable belief that the motorcycle appellant was driving was stolen, but that appellant was not charged with the crime of vehicle theft or possession of stolen property.
People v. Clerk, 2011 Cal. App. Unpub. LEXIS 4151, 1-7 (Cal. App. 5th Dist. June 1, 2011).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2...
