Opinion
No. C 00-1072 MJJ(PR)
November 26, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. After a review of the petition, the court ordered respondent to show cause why the petition should not be granted on the basis of petitioner's claims that there was insufficient evidence to support the finding that he had a prior felony conviction in 1980, and that he had been improperly deprived of transcripts from the 1980 proceedings. Respondent filed an answer accompanied by a memorandum contending that the petition should be denied. Petitioner filed a traverse.
BACKGROUND
This background is derived from the opinion of the California Court of Appeal ("Slip Op.").
In 1998, petitioner was charged with felony possession of cocaine, three misdemeanor marijuana charges, and various prior convictions. After petitioner waived his right to a jury trial, he submitted the matter tot he court on the preliminary hearing transcript in exchange for a maximum prison sentence of six years. The court found petitioner guilty of all drug charges and found true the allegations of prior convictions. The court sentenced petitioner to three years for cocaine possession, which was doubled to a total term of six years under California's Three Strikes Law (Cal. Pen. Code § 1170.12) based on petitioner's 1980 conviction for assault with a deadly weapon (Cal. Pen. Code § 245(a)). The California Court of Appeal affirmed the judgment, and the Supreme Court of California denied the petition for review.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). Habeas relief is warranted, however, only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'"Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)):
A determination of state law by a state appellate court is binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). The state's highest court is the final authority on the law of that state.See Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Even a determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise,'" Hicks, 485 U.S. at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940)), or if that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue. See Mullaney v. Wilbur, 421 U.S; 684, 691 n. 11 (1975).
Where, as here, the highest state court decision to reach the merits issued a summary opinion which does not explain the rationale of its decision, federal court review under § 2254(d) is of the last explained state court opinion to reach the merits. See, e.g., Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2000) (reviewing opinion of California Court of Appeal in deciding whether to grant habeas relief under § 2254(d)). In this case, the last explained state court opinion to address the merits of petitioner's claim is the opinion of the California Court of Appeal.
B. Legal Claims
Petitioner claims that there was insufficient evidence to support the finding that petitioner's 1980 conviction was for a serious felony, as is required to qualify as a strike under California's Three Strikes Law. Due process prohibits a sentence greater than that authorized by state law,Walker v. Endell, 850 F.2d 470, 476-77 (9th Cir. 1987). While due process does not in and of itself require that the proof of a prior conviction be beyond a reasonable doubt, see Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000); United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001), under California law, the state must prove the elements of a prior conviction used for a Three Strikes enhancement true beyond a reasonable doubt see People v. Williams, 222 Cal.App.3d 911, 915 (1990). Arguably, therefore, due process requires that the state comply with its requirement to prove petitioner's prior conviction beyond a reasonable doubt before enhancing his sentence. See generally Bonin v. Calderon, 59 F.3d 815, 841-42 (9th Cir. 1995) (providing that state law may create a "liberty interest" protected by the Due Process Clause, the violation of which affords a right to the relief by due process). A federal court reviewing a claim of insufficient evidence in a habeas petition does not determine whether it is satisfied that the evidence meets the reasonable doubt standard. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The trial court found that petitioner was convicted in 1980 for assault with a deadly weapon under California Penal Code § 245(a). There was ample evidence to support this finding. The minute order entered on the date petitioner pled guilty states that he pled guilty to assault with a deadly weapon, as well as grand theft. See Clerk's Transcript ("CT") (attached as respondent's exhibit 1) at 222. The abstract of judgment filed a few days later admittedly does not have a check in the box indicating a plea to the assault charge. See CT at 226. However, under California law, an abstract of judgment is not the judgment of conviction, and it does not add to or modify the judgment which it digests or summarizes. See Slip Op. at 4 (citation omitted). In any event, the subsequent abstract of judgment, which is a correction of the 1980 abstract and which was completed by the same sentencing judge, indicates that petitioner was sentenced on the assault with a deadly weapon charge. See CT at 227. A rational trier of fact could conclude that the omission in the 1980 abstract of judgment was a clerical error or oversight which had been corrected by the subsequent abstract of judgment, and could find beyond a reasonable doubt based on the minutes of the guilty plea and the corrected abstract of judgment that petitioner was convicted for assault with a deadly weapon.
Under California law, assault with a deadly weapon is a "wobbler," meaning that it can be a misdemeanor or a felony. See Slip Op. at 2. If it is a felony, it is considered a serious felony and qualifies as a strike under the Three Strikes Law., See Cal Pen. Code §§ 11927(c)(23); 1170.12(b)(1). The determination of whether a prior conviction was a felony or a misdemeanor for purposes of the Three Strikes Law, is "made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor," Cal. Pen. Code § 1170.12(b)(1). The 1980 Information charged petitioner with felony assault with a deadly weapon. See CT at 229. Since petitioner pled guilty to that offense, as proven by the minutes and corrected abstract of judgment cited above, a rational trier of fact could find that he pled guilty to the felony assault with a deadly weapon set forth in the information. Moreover, as explained by the California Court of Appeal, a wobbler is a misdemeanor under California law if the sentencing judge either imposes punishment other than state prison, or grants probation and declares the offense to be a misdemeanor; otherwise it is a felony.See Slip Op. at 5 (citing Cal. Pen. Code § 17(b)(1), (3)). With respect to the 1980 conviction, the sentencing judge suspended the sentence and imposed probation with a condition that petitioner spend one year in county jail. The California Court of Appeal concluded that as a matter of California law, this sentence does not fall within the definition of a misdemeanor provided by California Penal Code § 17(b)(1), (3), and was therefore the assault with a deadly weapon conviction was a felony. This court cannot disturb this interpretation of state law on habeas review. Under California law set forth by the state courts, there was sufficient evidence for a rational trier of fact to find that petitioner's 1980 assault with a deadly weapon conviction was a felony.
Specifically, the Court of Appeal reasoned that "Imposition of his sentence having been suspended, there was no judgment imposing upon him a punishment other than state prison within the meaning of section 17, subdivision (b)(1). Nor did the court declare his offense to be a misdemeanor at the time it granted him probation as required under section 17, subdivision (b)(3). Absent meeting either of these conditions defendant's crime remained a felony as of the date of his prior conviction.
In sum, the court concludes that there was sufficient evidence for a rational trier of fact to find that petitioner had a prior felony conviction for assault with a deadly weapon, which qualifies as a strike under California law. Accordingly, the enhancement of petitioner's sentence based on this prior conviction did not violate his right to due process.
Petitioner also claims that he was deprived of due process because he does not have a copy of the sentencing transcript for his 1980 conviction because the trial court might have indicated that the conviction was a misdemeanor. A state's failure to provide a full record of a trial may violate a defendant's due process rights and form the basis for federal habeas corpus relief. See Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989). A habeas petitioner also must establish prejudice from the lack of recordation to be entitled to habeas corpus relief. See id. at 649. As the court has concluded there was sufficient evidence for a rational trier of fact to prove that he had a serious felony conviction in 1980, petitioner cannot establish prejudice from the lack of recordation. Moreover, the record indicates that the court reporter's transcript of that hearing has long since been destroyed. See Slip Op. at 6. A state violates due process by destroying material evidence that is both exculpatory and that "might be expected to play a significant role in the defense." California v. Trombetta, 467 U.S. 479, 488 (1984). As the California Court of Appeal reasonably concluded, even if the transcript were exculpatory, the state had no reason to suspect in 1980 that the transcript might play a role in petitioner's defense 18 years later, under a Three Strikes Law which was not passed until 1994. Accordingly, habeas relief is not warranted on petitioner's claim regarding the sentencing transcript.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.
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