Opinion
CV 20-10416-DMG(E)
04-30-2021
JIMMY HERNANDEZ, Petitioner, v. JOHN SUTTON, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 12, 2020, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” and an accompanying Memorandum (collectively, the “Petition”). The Petition challenges Petitioner's sentence. On February 19, 2021, Respondent filed an Answer. On April 19, 2021, Petitioner filed “Petitioner's Reply Brief” (“Reply”).
BACKGROUND
An Information filed in the Los Angeles County Superior Court charged Petitioner with crimes arising out of two separate incidents. With respect to the first incident, allegedly occurring in the early morning hours of June 1, 2009, the Information charged Petitioner with: (1) three counts of assault with a firearm on Luis Alas, Jose M. and Jennie V. in violation of California Penal Code section 245(a)(2) (Counts 1, 2 and 3); (2) possession of a firearm by a felon in violation of California Penal Code section 12021(a)(1) (Count 4); and (3) possession of ammunition in violation of California Penal Code section 12316(b)(1) (Count 5) (Respondent's Lodgment 1a, pp. LD1a-003 - LD1a-005). The Information further alleged that, with respect to Counts 1, 2 and 3, Petitioner personally used a handgun within the meaning of California Penal Code section 12022.5(a) (Respondent's Lodgment 1a, pp. LD1a-004).
With respect to the second incident, allegedly occurring in the evening of June 1, 2009, the Information charged Petitioner with: (1) two counts of assault with a firearm on Juventino Barrios and Jason R. (Counts 6 and 7); (2) one count of discharge of a firearm with gross negligence in violation of California Penal Code section 246.3(a) (Count 8); (3) two counts of shooting from a motor vehicle at Juventino Barrios and Jason R. in violation of California Penal Code section 12034(c) (Count 9 and 10); (4) one count of shooting from a motor vehicle in violation of California Penal Code section 12034(d) (Count 11); and (5) one count of permitting another to shoot from a vehicle Petitioner owned or drove in violation of California Penal Code section 12034(b) (Count 12) (Respondent's Lodgment 1a, pp. LD1a-006 - LD1a-009).
The Information further alleged that, with respect to all counts, Petitioner committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1) (Respondent's Lodgment 1a, pp. LD1a-004, LD1a-008 - LD1a-009).
On July 7, 2010, the jury found Petitioner not guilty of the crimes alleged in Counts 9 and 10, but guilty on all other counts (Respondent's Lodgment 1b, pp. LD1b-001 - LD1b-0112; Respondent's Lodgment 2, pp. LD2-028 - LD2-032). The jury further found true the allegations that: (1) with respect to counts 1, 2 and 3, Petitioner personally used a handgun within the meaning of California Penal Code section 12022.5(a); and (2) with respect to all counts, Petitioner committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang (Respondent's Lodgment 1b, pp. LD1b-001 - LD1b-012; Respondent's Lodgment 2, pp. LD2-028 - LD28-32).
On November 12, 2010, the Superior Court sentenced Petitioner to a total term of 21 years and 8 months (Respondent's Lodgement 1c, pp. LD1c-001 - LD1c-003; Respondent's Lodgment 2, pp. LD2-035 - LD2-041). As relevant to the claims presented in the Petition, the sentence included: (1) on Count 1, the mid-term of three years, plus ten years on the gang enhancement; (2) on Counts 2 and 3, two consecutive terms of one-third the three year mid-term (i.e., one year), plus three years and four months on the gang enhancements; and (3) on Counts 6 and 7, two concurrent terms of the three year mid-term, plus one year and eight months on the gang enhancements (Respondent's Lodgment 1c, pp. LD1c-001 - LD1c-003; Respondent's Lodgment 2, pp. LD2-035 - 039).The court stayed the enhancement for personal use of a firearm on Count 1 and did not impose any personal use enhancement on Counts 2 or 3 (Respondent's Lodgment 1c; Respondent's Lodgment 2, pp. LD2-035 -LD2-036, Respondent's Lodgment 14).
Although the court initially sentenced Petitioner on Counts 6 and 7 to two concurrent terms of one year and eight months on the gang enhancements (see Respondent's Lodgment 1c), as indicated below, the court subsequently changed the sentence to five years on the gang enhancements. The court's minutes were amended nunc pro tunc to reflect these changes (see Respondent's Lodgment 2, pp. LD2-037 - LD2-039; Respondent's Lodgment 14). The court stayed the sentences on the remaining counts (Respondent's Lodgment 2, pp. LD2-037, LD2-039- LD2-041).
The Court of Appeal affirmed the judgment (see Respondent's Lodgment 3; People v. Hernandez, 2012 WL 223 6613, at *7 (Cal.App. June 18, 2012)). The California Supreme Court summarily denied Petitioner's petition for review on August 29, 2012 (Respondent's Lodgment 5).
Petitioner filed a habeas corpus petition in the California Supreme Court on December 6, 2013, which that court denied on February 11, 2014, with citations to People v. Duvall, 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995), In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953) and In re Lindley, 29 Cal. 2d 709, 177 P.2d 918 (1947) (Respondent's Lodgments 6, 7).
Petitioner filed a habeas corpus petition in the Superior Court on December 24, 2014, which that court denied on May 29, 2015 (Respondent's Lodgments 8, 9). Petitioner filed a second habeas corpus petition in the Superior Court on April 29, 2016, which that court denied on June 9, 2016 (Respondent's Lodgments 10, 11).
On March 19, 2018, a “Correctional Case Records Analyst” with the California Department of Corrections and Rehabilitation sent a letter to the sentencing court, filed in that court on March 22, 2018 (Respondent's Lodgment 12). This letter asserted that the sentence as to Counts 2 and 3 may be incorrect because the crime of assault with a firearm allegedly was not a violent felony within the meaning of California Penal Code section 186.22(b)(1)(C), but instead allegedly was a serious felony under California Penal Code section 186.22(b)(1)(B) (Respondent's Lodgment 12). The letter also asserted that the sentence as to Counts 6 and 7 may be incorrect because, under California Penal Code section 186.22(b)(1)(B), the court allegedly should have imposed the full term of five years for concurrent gang enhancements (Respondent's Lodgment 12). On August 22, 2018, the Superior Court ordered the abstract of judgment amended to reflect that the concurrent sentences on Counts 6 and 7 included terms of five years each on the gang enhancements, a change which did not affect the total sentence (Respondent's Lodgments 13, 14). However, the Superior Court otherwise deemed Petitioner's sentence to be correct, stating specifically that the offenses of assault with a firearm “do indeed constitute violent felonies pursuant to Penal Code section 667.5(c)(8)” (Respondent's Lodgments 13, 14; see Respondent's Lodgment 2, LD2-037 - LD2-038).
California Penal Code section 186.22(b)(1) provides that, with exceptions not relevant here, “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.”
As indicated above, the court amended its sentencing minutes nunc pro tunc to impose five year terms on the gang enhancements for Counts 6 and 7.
On April 2, 2019, Petitioner filed a second habeas corpus petition in the California Supreme Court, which that court denied on July 10, 2019 (Respondent's Lodgments 15, 16).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Because the offense of assault with a firearm supposedly is not a violent felony, the gang enhancements imposed for Counts 2 and 3 allegedly were incorrect (Petition, Ground One);
2. Petitioner's sentence on Counts 6 and 7 allegedly was incorrect because the five-year “full term” assertedly “must be imposed for consecutive sentencing” (Petition, Ground Two); and
3. The sentencing court allegedly violated due process, equal protection and California Penal Code section 1170.1(f) by imposing sentence both on the personal use enhancement and on the gang enhancement (Reply, pp. 2, 5-6).
Section 1170.1(f) provides, in pertinent part: “When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.”
Respondent construes Petitioner's Reply to allege an additional claim that Petitioner's sentence purportedly violated Hicks v. Oklahoma, 447 U.S. 343 (1980) (see Answer, p. 9). The Court construes Petitioner's allegations to raise a single challenge to the imposition of sentence on both the personal use enhancements and the gang enhancements (see Reply, p. 3). In any event, even if the Petition had alleged a separate claim for an alleged violation of Hicks v. Oklahoma, any such claim would fail for the reasons stated herein.
DISCUSSION
Federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on federal habeas review. Id.; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions”); accord Pulley v. Harris, 465 U.S. 37, 41 (1984).
Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989), cert. denied, 499 U.S. 963 (1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis).
Under narrow circumstances, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). “[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process” violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.”). However, for the reasons discussed below, the Petition should be denied and dismissed with prejudice because Petitioner fails to allege any cognizable violation of “the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a).
To the extent any of Petitioner's claims may be unexhausted, the Court nevertheless may deny those claims as not colorable. See Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006).
I. Challenge to the Imposition of Gang Enhancements on Counts 2 and 3
As indicated above, California's gang enhancement statute, California Penal Code section 186.22(b), provides different levels of enhancement for the base felony if that felony is “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct.” If the base felony qualifies as a “violent felony” under the list of felony crimes contained in California Penal Code section 667.5(c), the court must impose a ten-year enhancement. See Cal. Penal Code § 186.22(b)(1)(C). Section 667.5(c)(8) includes in the definition of “violent felony” “any felony in which the defendant uses a firearm which use has been charged and proved as provided in . . . [section] 12022.55.” See People v. Rodriguez, 47 Cal.4th 501, 505, 213 P.3d 647, 649 (2009) (offenses of assault with a firearm “qualified as a ‘violent' felony under section 667.5, subdivision (c), because in committing each of those offenses defendant ‘use[d] a firearm which use has been charged and proved' under section 12022.5. (§ 667.5, subd. (c)(8).)”). Here, the jury found true the allegation that Petitioner personally used a firearm in the commission of the offenses alleged in Counts 2 and 3. This Court cannot revisit the sentencing court's determination that these offenses constituted violent felonies. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”) (citation and internal quotations omitted); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”).
Moreover, even if the sentencing court erred in characterizing the offenses as violent felonies, federal habeas relief would be unavailable. See Miller v. Vasquez, 868 F.2d at 1118-19; Middleton v. Cupp, 768 F.2d at 1085; see also Childers v. Eldridge, 2020 WL 2992195, at *3 (S.D. Cal. June 4, 2020) (claim that carjacking failed to qualify as a violent felony not cognizable on federal habeas review); Miguel Lopez v. Sherman, 2018 WL 11193526, at *1 (E.D. Cal. Nov. 26, 2018), adopted, 2019 WL 10303565 (E.D. Cal. Mar. 8, 2019) (claim that second degree robbery failed to qualify as a violent felony not cognizable on federal habeas review); Topete v. Adams, 2019 WL 132276, at *3 (E.D. Cal. Jan. 8, 2019) (challenge to imposition of ten-year gang enhancement not cognizable on federal habeas review).
Accordingly, Petitioner is not entitled to federal habeas relief on Ground One of the Petition.
II. Challenge to the Sentencing on Counts 6 and 7
Petitioner contends the sentencing on Counts 6 and 7 allegedly was incorrect because the five-year “full term” assertedly “must be imposed for concurrent sentencing” (Petition, p. 5). Again, Petitioner alleges only a claim of state law error not cognizable on federal habeas review. See Miller v. Vasquez, 868 F.2d at 1118-19; Middleton v. Cupp, 768 F.2d at 1085. In any event, Ground Two is moot. As indicated above, the sentencing court already corrected Petitioner's sentence to impose five years on the gang enhancements on Counts 6 and 7 (see Respondent's Lodgment 2, pp. LD2-037 - LD2-039; Respondent's Lodgment 14). See Warren v. Cardwell, 621 F.2d 319, 322 (9th Cir. 1980) (where petitioner had obtained the relief sought in the petition, the petition was moot); Dean v. Bianco, 2020 WL 6435394, at *2 (C.D. Cal. Sept. 16, 2020), adopted, 2020 WL 6392853 (C.D. Cal. Oct. 30, 2020) (“Claims for habeas relief become moot when the party seeking relief has obtained the relief requested.”) (citation omitted). Petitioner is not entitled to federal habeas relief on Ground Two of the Petition.
“Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula. . . .” People v. Quintero, 135 Cal.App.4th 1152, 1156, n.3, 37 Cal.Rptr.3d 884 (2006), abrogation on other grounds recognized, People v. Poisson, 246 Cal.App.4th 121, 125, 200 Cal.Rptr.3d 542, 544 (2016).
Indeed, Petitioner does not argue otherwise in the Reply.
III. Challenge to the Imposition of Gang Enhancements and Personal Use Enhancements
Petitioner's claim that the court improperly imposed enhancements for both gang involvement and firearm personal use appears to be directed to Counts 1, 2 and 3. As indicated above, the sentencing court imposed a ten-year gang enhancement on Count 1 and two five-year gang enhancements on Counts 2 and 3 pursuant to California Penal Code section 186.22(b). The court stayed the enhancement for personal use of a firearm on Count 1 and did not impose any personal use enhancements on Counts 2 and 3 (Respondent's Lodgment 1c; Respondent's Lodgment 2, pp. LD2-035 - LD2-036, Respondent's Lodgment 14).
Petitioner relies on California case law assertedly suggesting that, under California Penal Code section 1170.1(f), a court cannot impose both a firearm enhancement under section 12022.5(a) and a gang enhancement under section 186.22(b)(1) for the same offense (Reply, p. 5). Petitioner cites, inter alia, People v. Rodriguez, 47 Cal.4th 501, 508-09, 98 Cal.Rptr.3d 108 213 P.3d 647 (2009) and People v. Le, 61 Cal.4th 416, 189 Cal.Rptr.3d 166, 351 P.3d 295 (2015).
Once again, Petitioner raises only a claim of state law error for which federal habeas relief is unavailable. See Miller v. Vasquez, 868 F.2d at 1118-19; Middleton v. Cupp, 768 F.2d at 1085; Green v. Long, 2018 WL 6338725, at *9 (E.D. Cal. Dec. 5, 2018) (claim that sentencing court violated California Penal Code section 1170.1(f) and People v. Rodriguez not cognizable on federal habeas review); Becerra v. California Dep't of Corrections & Rehabilittation [sic], 2016 WL 7324709, at *1-3 (E.D. Cal. Dec. 16, 2016) (claim that court imposed an incorrect sentence in violation of section § 1170.1(f) not cognizable on federal habeas review); see also Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (rejecting as not cognizable petitioner's contention that California state court improperly imposed two consecutive terms for rape in concert based on petitioner's single act of standing guard while others raped the victim).
Petitioner's attempt to cast this claim as one of purported constitutional error is unavailing. A habeas petitioner may not “transform a state law issue into a federal one” merely by invoking general principles of federal constitutional law. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881 (1997). Petitioner has failed to demonstrate that the sentencing court violated state law by imposing and then staying sentence on the section 12022.5(a) enhancement, much less that the sentence violated the federal constitution. See People v. Vega, 214 Cal.App.4th 1387, 1395, 153 Cal.Rptr.3d 716 (2013) (where base crime was attempted voluntary manslaughter with great bodily injury and court imposed ten-year section 186.22(b)(1)(C) gang enhancement, court could not also impose sentence on great bodily injury enhancement but rather should have imposed and stayed that enhancement); Cal. Ct. R. 4. 447 (court may not dismiss an enhancement solely because imposition of the term is prohibited by law or exceeds limitations on the imposition of multiple enhancements, but rather must impose sentence for the aggregate term of imprisonment and then stay execution of the part of the term that is prohibited or exceeds the applicable limitation). Petitioner is not entitled to federal habeas relief on Ground Three of the Petition.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
In light of this recommended disposition, the Court need not, and does not, determine whether the claims in the Petition are timely. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001), cert. denied, 535 U.S. 950 (2002) (court may deny on the merits an untimely claim that fails as a matter of law).
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DOLLY M. GEE UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.