Opinion
CV 21-3782-MWF(E)
12-03-2021
ALBERTO EVAN QUINTERO, Petitioner, v. CHRISTIAN PFEIFFER, 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 Michael W. Fitzgerald, 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 May 3, 2021, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” (“Petition”). On September 10, 2021, Respondent filed an “Answer to Petition for Writ of Habeas Corpus, etc.” (“Answer”). Petitioner did not file a Reply within the allotted time.
BACKGROUND
In 2006, a jury found Petitioner guilty of: (a) one count of carjacking in violation of California Penal Code section 215(a); (b) one count of grand theft of an automobile in violation of California Penal Code section 487(d)(1); and (c) one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code section 10851(a) (Reporter's Transcript [“R.T.”] 706-09, 755; Clerk's Transcript [“C.T.”] 563-65). As to all counts, the jury found true the allegations that the offenses were committed 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)(A) (R.T. 706-09, 755; C.T. 563-65). On the carjacking count, the jury found not true the allegation that Petitioner personally used a firearm within the meaning of California Penal Code section 12022.5(a), but found true the allegation that a principal personally used a firearm within the meaning of California Penal Code section 12022.53(e)(1) (R.T. 707, 755; C.T. 563). On the grand theft auto and the unlawful driving counts, the jury found true the allegations that a principal was armed with a firearm within the meaning of California Penal Code section 12022(a)(1) (R.T. 708-09, 755; C.T. 564-65). The jury also found Petitioner's co-defendant, Jose Ramon Delgadillo, guilty of various offenses (see R.T. 709-12, 767-68; C.T. 566-70).
The trial court granted Petitioner's motion to strike the unlawful driving conviction (R.T. 747; C.T. 715). On November 3, 2006, the court sentenced Petitioner to a term of fifteen years to life on the carjacking count (R.T. 761-62; C.T. 716, 724-25). The court imposed and stayed an additional term for the principal's use of a firearm (R.T. 761-62; C.T. 717). The court also imposed and stayed an additional term on the grand theft auto count (R.T. 761-63; C.T. 718, 726-27).
The court selected the five-year “mid term” for carjacking, see Cal. Penal Code section 215(b), but sentenced Petitioner to a mandatory term of fifteen years to life pursuant to California Penal Code section 186.22(b)(4) (see R.T. 761-62).
On February 4, 2008, the California Court of Appeal affirmed (Petition, Ex. A; Respondent's Lodgment 7; see People v. Delgadillo, 2008 WL 283773 (Cal.App. Feb. 4, 2008)). On May 14, 2008, the California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 9).
On April 27, 2020, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court (Respondent's Lodgment 10). On June 5, 2020, the Superior Court denied the petition's Eighth Amendment claim as procedurally barred because the issue could have been raised on direct appeal (Respondent's Lodgment 11). The California Court of Appeal and the California Supreme Court summarily denied subsequent habeas corpus petitions (Respondent's Lodgments 12, 13, 14, 15).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Delgadillo, 2008 WL 283773 (Cal.App. Feb. 4, 2008). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
On the evening of October 12, 2005, Gabriel Benza (Benza) drove in his 1988 Acura Legend to a liquor store on East Colorado Boulevard in Pasadena. He was with two friends, James Lopez (Lopez) and Bret Wotherspoon (Wotherspoon). Benza parked his car in the parking lot in back of the store. He bought cigarettes in the store and went back to sit in his car and smoke while his friends were in the store buying food and drinks.
Benza noticed there were five persons inside a car parked approximately 25 feet away. One of the five approached Benza's car, and four of them went to stand near the entrance to the store, which was approximately 10 feet from Benza's car. The person who approached Benza was a little under six feet tall and wore a baseball cap, gold chain, and an undershirt with no sleeves. Benza subsequently identified this person as Quintero.
Quintero asked Benza where he was from, and Benza understood this question to refer to a gang affiliation. Quintero told Benza that he liked his car and told him to get out of the car. Benza grabbed a baseball bat from the passenger's seat and held it low to his side as he got out of his car. It was an aluminum T-ball bat for “little kids.” When Benza was halfway out of the car, he felt something hard pressing up against the left side of his head. He had not made any aggressive gestures with the baseball bat toward Quintero. Benza believed a gun was being held against his head, and he used his free hand to swat the object away. He then ran towards the store entrance with the bat in his hands.
One of the persons who had arrived with Quintero called out, “just go back to the car.” Before Benza got to the entrance he heard someone yell, “Blast him, blast him.” Benza saw a man, later identified as Delgadillo, wearing baggy clothing and standing to the left of the store entrance. Delgadillo pulled a gun from his waistband as Benza ran toward the store entrance. Delgadillo approached Benza from a distance of approximately five to six feet with the gun in his hand. Lopez and Wotherspoon saw Benza come running into the store carrying a baseball bat and yelling, “‘He's got a gun. He's got a gun.'” Benza ran from the liquor store to an adjacent nail salon and yelled for someone to call 911.
Benza had left his car key in the ignition, and he saw his Acura being driven away. Later that night, police took
Benza to the place where his car was found wrecked.
Susan Lowe (Lowe) lived on Martelo Avenue in Pasadena. On the night of October 12, 2005, she heard a loud noise and went outside where she saw that a car had crashed into a tree. Two men got out of the car and, after failing to start the car, they ran down an alley. Lowe said that one of the occupants was wearing a sleeveless T-shirt.
At approximately 9:00 p.m. on the night in question, Officer Anthony Russo was checking the area of East Corson Street for suspects in the carjacking. He found a wallet lying on the sidewalk on East Corson Street. Inside the wallet he found a California identification card and social security card bearing Quintero's name.
Officer Jason Clawson heard a broadcast regarding a vehicle crash on Martelo Avenue and drove to the location. A citizen told Officer Clawson that he had seen two bald-headed male Hispanics wearing white T-shirts running eastbound on Maple Street. Both Quintero and Delgadillo were arrested in the area near the car crash and the location of the wallet.
Police placed a recording device in the police car used to transport Quintero and Delgadillo. The recording captured Quintero telling Delgadillo where he had hidden the gun. Police later found a knife and a loaded .22-caliber gun in
the described location. Quintero said he had told Benza that this was his neighborhood, and he bragged about how he had “jacked” him. He said he was a member of Northside Pasadena Oak Street gang (NSP) and that was his neighborhood. The homies were going to see him and Delgadillo in a “good light” for “putting in work” with the “jacking.” Quintero said that the homies would show up in court and that Benza would be “smoked” if he testified. Delgadillo said he ran to the car to “strap” himself to aid Quintero after he saw that Benza had a baseball bat.
Police took Quintero and Delgadillo to the liquor store for a field showup. Benza identified Quintero as the one who put a gun to his head. Benza was not able to identify Delgadillo in the showup. Lopez and Wotherspoon were not able to identify anyone they saw at the liquor store with a gun.
Police Detective Ernie Devis interviewed Quintero and Delgadillo on the following day, and recordings of these interviews were played to the jury. During his interview Delgadillo said he happened to stumble on the carjacking taking place. He then changed his story and said he arrived in a car with Quintero and NSP gang members before the incident. He would not name the other occupants in the car.
Andrea Perez of the Pasadena Police Department testified as the “lead Latino gang intelligence officer” of her
department. She said that the NSP gang was the main gang out of four subsets of gangs. The gang's primary activity was committing carjackings, robberies, auto burglaries, narcotic sales, gun possession, murder, and attempted murder. At the time of the carjacking NSP had approximately 15 active members out of 70, and the gang's activities had been decreasing because most of its members were in custody. Officer Perez knew Quintero from prior contacts and believed he was an NSP member. Quintero bore NSP tattoos. Officer Perez was aware of police records indicating that Delgadillo was an admitted NSP member. Officer Perez believed that the liquor store where Benza stopped was in NSP territory. Based on the evidence, Officer Perez was of the opinion that Quintero committed the carjacking to benefit the gang and that Delgadillo acted as Quntero's [sic] assistant. She stated that gang members use guns for protection during crimes or an encounter with a rival gang.(Respondent's Lodgment 7, pp. 3-6; see People v. Delgadillo, 2008 WL 283773, at *2-3).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Petitioner's sentence allegedly violates the California Constitution and the Eighth Amendment of the federal Constitution (Ground One);
2. Petitioner's sentence allegedly must be reduced to a determinate term of nine years because Petitioner's carjacking offense assertedly does not qualify as a crime of violence under 8 U.S.C. section 1101(a)(43)(F) (Ground Two); and
3. Petitioner allegedly is entitled to resentencing under: (a) Senate Bill 1134; (b) the Three Strikes Reform Act of 2012; (c) Assembly Bill 1812; and (d) Senate Bill 620 (Ground Three).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (“Andrade”). A state court's decision is “contrary to” clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
Additionally, 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). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, Petitioner has failed to demonstrate that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 736-37. Accordingly, the Petition should be denied and dismissed with prejudice.
The Court has read, considered and rejected on the merits all of Petitioner's arguments. The Court has discussed Petitioner's principal arguments herein. The Court assumes arguendo the timeliness of the Petition. 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). The Court further assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016), cert. denied, 138 S.Ct. 244 (2017); Franklin v. Johnson, 290 F.3d 1223, 1232-33 (9th Cir. 2002). To the extent any of Petitioner's claims may be unexhausted, the Court denies the claims as not “colorable.” See Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not “colorable”).
Consequently, the Court need not, and does not, determine the extent to which the AEDPA standard of review may apply to any of the issues in this case. See Frantz v. Hazey, 533 F.3d at 736-37.
I. Petitioner Is Not Entitled to Federal Habeas Relief on Ground One.
In Ground One, Petitioner contends his sentence of fifteen years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment and the California Constitution (see Petition, attachment, pp. 5-23).
The Eighth Amendment forbids the imposition of “cruel and unusual punishments.” U.S. Const. amend VIII. In Rummel v. Estelle, 445 U.S. 263 (1980) (“Rummel”), the Supreme Court upheld a recidivist sentence of life with the possibility of parole for obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods or services and passing a forged check for $28.36. Id. at 265-66, 284-85. In Solem v. Helm, 463 U.S. 277 (1983) (“Solem”), the Court struck down a recidivist sentence of life without the possibility of parole for uttering a “no count” check for $100, “one of the most passive felonies a person could commit, ” where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. Id. at 289-90, 296. In Harmelin v. Michigan, 501 U.S. 957 (1991) (“Harmelin”), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of 672 grams of cocaine. In a concurring opinion, Justice Kennedy, joined by Justices O'Connor and Souter, opined that a non-capital sentence could violate the Eighth Amendment if the sentence were grossly disproportionate to the crime. Id. at 996-1009.
Subsequently, the United States Supreme Court held that, in determining whether a particular sentence for a term of years violates the Eighth Amendment, a “gross disproportionality principle” applies. Andrade, 538 U.S. at 72. Thus, “[t]he threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” United States v. Bland, 961 F.2d 123, 129 (9th Cir.), cert. denied, 506 U.S. 858 (1992) (citation and internal quotations omitted); see Andrade, 538 U.S. at 73 (gross disproportionality principle “applicable only in the ‘exceedingly rare' and ‘extreme'” case) (citation omitted); Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring) (“The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate' to the crime.”) (citations omitted); see also Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) (“we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence”).
Petitioner's claim fails at this threshold level. As indicated above, the United States Supreme Court has rejected disproportionality challenges to extremely lengthy sentences imposed for crimes far less grave than Petitioner's crime. See, e.g., Ewing v. California, 538 U.S. 11 (2003) (recidivist sentence of 25 years to life for the nonviolent theft of three golf clubs); Harmelin (non-recidivist sentence of life without the possibility of parole for first offense of possession of 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370 (1982) (sentence of 40 years for possession and distribution of approximately nine ounces of marijuana); Rummel (recidivist sentence of life with the possibility of parole for obtaining $120.75 by false pretenses). A sentence of fifteen years to life for a gang-related carjacking is not grossly disproportionate. See Shaver v. Sherman, 2019 WL 4045685, at *2 (C.D. Cal. May 22, 2019), adopted, 2019 WL 4038220 (C.D. Cal. Aug. 27, 2019) (recidivist sentence of 43 years for carjacking and discharging a firearm not unconstitutional); Carpintero v. McDonald, 2012 WL 6840583, at *11 (C.D. Cal. Oct. 3, 2012), adopted, 2013 WL 144029 (C.D. Cal. Jan. 11, 2013) (sentence of 15 years to life for gang-related carjacking plus 10-year firearm enhancement not unconstitutional); Brown v. Horel, 2011 WL 900547, at *13 (N.D. Cal. Mar. 15, 2011) (sentence of life without the possibility of parole for armed robbery not unconstitutional); Benavente v. Hedgpeth, 2010 WL 2196008, at *9 (E.D. Cal. May 26, 2010) (sentence of 15 years to life for carjacking with a gang enhancement not unconstitutional “in light of Petitioner's past criminal behavior and the dangerousness of the crime”); see also Taylor v. Lewis, 460 F.3d 1093, 1098 (9th Cir. 2006) (eligibility for parole, albeit after 25 years, rendered petitioner's recidivist sentence of 25 years to life “considerably less severe” than the sentence invalidated in Solem).
Nevertheless, Petitioner argues his sentence is grossly disproportionate because, under California's carjacking statute, a carjacking offense carries a maximum sentence of nine years. See Cal. Penal Code § 215(b). Petitioner's argument overlooks the jury's finding that Petitioner committed the carjacking for the benefit of a criminal street gang, which subjected Petitioner to a mandatory sentence of fifteen years to life (see R.T. 706-09, 755, 761-62; C.T. 563-65). See Cal. Penal Code § 186.22(b)(4). Thus, Petitioner's argument does not alter the result therein. See Taylor v. Lewis, 460 F.3d at 1100 n.9 (“it avails [petitioner] nothing that he was given 25 years to life for a crime ordinarily deserving no more than three years”) (citations omitted).
Petitioner also argues that two California Supreme Court cases, People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 (1983), and In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1972) supposedly demonstrate that Petitioner's sentence is unconstitutional under the California Constitution (Petition, attachment, pp. 16-20). Petitioner's argument is unavailing. See Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (claim that sentence violated state constitutional sentencing standards set forth in People v. Dillon not cognizable on federal habeas review); Bow v. Martinez, 2016 WL 7826516, at *8 n.6 (C.D. Cal. Dec. 5, 2016), adopted, 2017 WL 187129 (C.D. Cal. Jan. 17, 2017) (In re Lynch not binding on federal habeas court). Mere violations of a state constitution do not require federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
For all of the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground One.
II. Petitioner is Not Entitled to Federal Habeas Relief on Ground Two.
As indicated above, 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. at 67-68 (“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. Cal. Adult Auth., 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1968); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“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, however, 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.”).
In Ground Two, Petitioner argues that, because carjacking assertedly is no longer deemed a “crime of violence” under federal law, Petitioner's life sentence allegedly must be reduced (Petition, attachment, pp. 24-27). Petitioner's argument, which concerns how to interpret state law (and whether to use federal law in the interpretation) fails to raise any issue cognizable on federal habeas corpus. See Wilson v. Concoran, 562 U.S. at 5; Estelle v. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d at 1118-19; see also Shaver v. Sherman, 2019 WL 4045685, at *1-2 (rejecting claim that, because carjacking is not a “crime of violence” under federal statute, state carjacking conviction does not qualify as a strike under California's Three Strikes Law). Petitioner has failed to demonstrate anything “arbitrary or capricious” about the California courts' interpretation of California sentencing law.
Petitioner's reliance on Johnson v. United States, 559 U.S. 133 (2010) (“Johnson”) and Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018) (“Solorio-Ruiz”) is misplaced. Johnson and Solorio-Ruiz concerned the issue of whether a state conviction qualified as a “violent felony” or a “crime of violence” for purposes of federal sentencing. These decisions have no bearing on the propriety of Petitioner's state sentence, an issue of state law for which federal habeas relief is unavailable. See Childers v. Eldridge, 2020 WL 2992195, at *3-4 (S.D. Cal. June 4, 2020) (“the Court [in Johnson] defined ‘violent felony' for purposes of federal law only”; petitioner's claim that state agency erred by failing to classify state carjacking offense as a nonviolent felony in light of Johnson not cognizable federal habeas corpus claim because it “alleges only a violation of state law”) (citation omitted); Thompson v. Sherman, 2019 WL 2807871, at *4 (C.D. Cal. May 21, 2019), adopted, 2019 WL 2764403 (C.D. Cal. July 2, 2019) (“Solorio-Ruiz did not change California sentencing law”; rather, it “clarified that for purposes of federal immigration law, a carjacking conviction in California is not categorically a ‘crime of violence' precluding an alien to relief from removal under 8 U.S.C. § 1101(a)(43)(F)”); Shaver v. Sherman, 2019 WL 4045685, at *1-2 (same).
For all of the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground Two.
III. Petitioner is Not Entitled to Federal Habeas Relief on Ground Three.
In Ground Three, Petitioner alleges that he is entitled to resentencing under various provisions of California law (see Petition, attachment, pp. 27-31). As discussed above, matters relating to state sentencing generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d at 1118-19. For the reasons discussed below, Ground Three fails to allege any cognizable violation of “the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a).
A. Claim Under Senate Bill 1134
In 2016, California enacted Senate Bill 1134, which amended California Penal Code section 1473 to give inmates additional grounds to seek state court habeas relief based on newly discovered evidence. See Cal. Penal Code § 1473(b)(3) (as amended by Cal. Stats. 2016, ch. 785, § 1 (eff. Jan. 1, 2017)). This amendment became effective on January 1, 2017. The amended statute provides that a prisoner may seek a writ of habeas corpus on the ground that “[n]ew evidence exists that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” Cal. Penal Code § 1473(b)(3)(A). “New evidence” is defined as “evidence that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative, corroborative, collateral, or impeaching.” Cal. Penal Code § 1473(b)(3)(B).
Petitioner's claim that he is entitled to resentencing under Senate Bill 1134 presents a state law issue not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d at 1118-19; see also Rushing v. Neuschmid, 2020 WL 2404666, at *27-28 (N.D. Cal. May 12, 2020) (state court's alleged misapplication of California Penal Code section 1473(b)(3) not cognizable on federal habeas corpus).
In any event, Petitioner has not presented any “new evidence” which “would have more likely than not changed the outcome at trial.” See Cal. Penal Code § 1473(b)(3)(A). In fact, Petitioner appears to concede that he committed the carjacking offense for which he was convicted (see, e.g., Petition, attachment, p. 16). Therefore, Petitioner has failed to satisfy even the state law requirements for state court relief under California Penal Code section 1473(b)(3).
B. Claim Under Three Strikes Reform Act of 2012
On November 6, 2012, California voters approved Proposition 36, the Three Strikes Reform Act of 2012, an initiative measure effective November 7, 2012. Among other things, Proposition 36 enacted California Penal Code section 1170.126. Section 1170.126 “created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety.” People v. Yearwood, 213 Cal.App.4th 161, 168, 151 Cal.Rptr.3d 901 (2013) (citing Cal. Penal Code § 1170.126). Under section 1170.126, a prisoner is eligible for resentencing as a second strike offender only if the prisoner is serving an indeterminate life sentence for a crime that is not a “serious” and/or “violent” felony as defined in California Penal Code sections 667.5(c) or 1192.7(c). See Cal. Penal Code §§ 1170.126(b), 1170.126(e)(1).
Petitioner contends that he is entitled to resentencing under California Penal Code section 1170.126 because carjacking allegedly is not a violent felony (see Petition, attachment, p. 27). Petitioner's claim of entitlement to resentencing under California Penal Code section 1170.126 alleges only a state law claim not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d at 1118-19; see also Jackson v. Johnson, 2021 WL 4298277, at *4 (C.D. Cal. July 13, 2021), adopted, 2021 WL 4288519 (C.D. Cal. Sept. 21, 2021) (“whether an inmate is eligible for resentencing under Proposition 36 is a state-law question that presents no cognizable federal claim on habeas review”); Reed v. California, 2020 WL 5948285, at *6 (C.D. Cal. Sept. 1, 2020), adopted, 2020 WL 5946081 (C.D. Cal. Oct. 6, 2020) (“any claim that petitioner is entitled to resentencing under [California Penal Code section 1170.126] would not merit federal habeas relief as such a claim involves only an application of state sentencing laws and, thus, does not give rise to a federal question”); Nelson v. Biter, 33 F.Supp.3d 1173, 1177-78 (C.D. Cal. 2014) (claim that petitioner was entitled to resentencing under California Penal Code section 1170.126 “presents no federal question because it involves the application or interpretation of state law”); Johnson v. Spearman, 2013 WL 3053043, at *2 (C.D. Cal. June 10, 2013) (“petitioner's [Proposition 36] claim involves only an alleged error in the application of California law, and is not cognizable on federal habeas review”).
In any event, Petitioner is not serving a three strikes sentence, and carjacking is a serious or violent felony under California Penal Code sections 667.5(c)(17) and 1192.7(c)(27) (see C.T. 715). See Clayton v. Biter, 2018 WL 6038319, at *3 (C.D. Cal. Sept. 10, 2018) (petitioner ineligible for resentencing under California Penal Code section 1170.126 where petitioner was serving a sentence for carjacking and robbery, both of which are “among the statutorily-enumerated serious and/or violent offenses that are explicitly excluded from resentencing under Section 1170.126”) (original emphasis; internal quotations omitted). Thus, Petitioner's section 1170.126 claim fails, even as a matter of state law.
C. Claim Under Assembly Bill 1812
In 2018, California enacted Assembly Bill 1812, Cal. Stats. 2018, ch. 1419, § 17 (eff. June 27, 2018). Among other things, this new law amended California Penal Code section 1170(d)(1). Section 1170(d)(1) previously authorized a court to recall a sentence within 120 days of the prison commitment on the court's own motion, or at any time upon recommendation from the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), the Board of Parole Hearings, or a county correctional administrator in the case of county jail inmates. See Cal. Penal Code § 1170(d)(1); People v. Loper, 60 Cal.4th 1155, 1165, 184 Cal.Rptr.3d 715, 343 P.3d 895 (2015); Dix v. Superior Court, 53 Cal.3d 442, 456, 279 Cal.Rptr. 834, 807 P.2d 1063 (1991). Assembly Bill 1812 added, inter alia, a provision stating that “[t]he court resentencing under this paragraph may reduce a defendant's term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.” See Cal. Penal Code § 1170(d)(1) (as amended by Cal. Stats. 2018, ch. 1419, § 17 (eff. June 27, 2018)). The amendment also added a provision enumerating various postconviction factors the court could consider. See id. The amendment became effective on June 27, 2018.
The California Legislature subsequently amended section 1170(d)(1) to give state prosecutors the ability to reevaluate previous sentences and recommend sentence reductions. See Cal. Stats. 2018, ch. 1001 (A.B. 2942), § 2 (eff. Jan. 1, 2019); see also Grays v. Madden, 2021 WL 3869727, at *2 (C.D. Cal. July 20, 2021), adopted, 2021 WL 3856797 (C.D. Cal. Aug. 30, 2021).
Petitioner's claim of entitlement to resentencing under California Penal Code section 1170(d)(1) alleges only a state law claim not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d at 1118-19; see also Smith v. Houston, 2020 WL 5351319, at *1-2 (C.D. Cal. July 30, 2020), adopted, 2020 WL 5350435 (C.D. Cal. Sept. 2, 2020) (whether petitioner is entitled to resentencing pursuant to Assembly Bill 1812 is a state law issue not cognizable on federal habeas review); Bailey v. Sherman, 2020 WL 4372118, at *3 (C.D. Cal. June 30, 2020), adopted, 2020 WL 4368062 (C.D. Cal. July 30, 2020), appeal denied, 2020 WL 6778001 (9th Cir.), cert. denied, 141 S.Ct. 961 (2020) (“[w]hether Petitioner is entitled to a resentencing hearing under Section 1170(d)(1) absent a recommendation by the district attorney, the CDCR, or the Parole Board is purely a matter of state law” that “does not present a basis for federal habeas relief”); Mills v. Marsh, 2020 WL 1180433, at *3 (C.D. Cal. Jan. 9, 2020), adopted, 2020 WL 5202073 (C.D. Cal. Sept. 1, 2020) (claim seeking resentencing under California Penal Code section 1170(d)(1), as amended by Assembly Bill 1812, “[does] not present a cognizable basis for federal habeas relief” because “[w]hether Petitioner is entitled to resentencing is a question pertaining solely to state law”); Nichols v. Pfeiffer, 2019 WL 4014429, at *7 (C.D. Cal. Aug. 26, 2019) (same).
In any event, Petitioner has not shown any violation of state law. The California Supreme Court has suggested that, although a prisoner lacks statutory authority to make a motion for resentencing under California Penal Code section 1170(d)(1), a prisoner could “invite the court to exercise its power” to recall a sentence by bringing a section 1170(d)(1) motion within 120 days of the prisoner's prison commitment. See People v. Loper, 60 Cal.4th at 1165-67; see also Williams v. Warden, 2021 WL 4356113, at *5 n.5 (C.D. Cal. Sept. 24, 2021) (acknowledging that a petitioner can bring a section 1170(d)(1) motion, but only if petitioner brings the motion within 120 days of the prison commitment). In the present case, Petitioner does not allege, and the record does not show, that Petitioner filed any motion to recall his sentence within the requisite time period. Therefore, absent a recommendation from the Secretary of the CDCR, the Board of Parole Hearings or the District Attorney, the trial court cannot recall Petitioner's sentence. See People v. Loper, 60 Cal.4th at 1165 (under California Penal Code section 1170(d)(1), the trial court “loses jurisdiction to resentence on its own motion after 120 days has elapsed”) (citation omitted); see also Williams v. Warden, 2021 WL 4356113, at *3-5. Petitioner does not allege, and the record does not reflect, that there has been any such recommendation in Petitioner's case.
D. Claim Under Senate Bill 620
At the time of Petitioner's 2006 sentencing, former California Penal Code section 12022.53(h) provided that a sentencing court had no authority to “strike an allegation under this section or a finding bringing a person within the provisions of this section.” See former Cal. Penal Code § 12022.53(h); People v. Gonzalez, 43 Cal.4th 1118, 1135, 77 Cal.Rptr.3d 569, 184 P.3d 702 (2008). Thus, at the time Petitioner was sentenced, the section 12022.53 enhancement was mandatory.
In 2017, California enacted Senate Bill 620, which amended California Penal Code sections 12022.5 and 12022.53 to give discretion to the sentencing court to strike firearm enhancements in the interest of justice. See Cal. Penal Code §§ 12022.5(c), 12022.53(h) (as amended by Cal. Stats. 2017, ch. 682, § 17 (eff. Jan. 1, 2018)); People v. Valles, 49 Cal.App. 5th 156, 165, 262 Cal.Rptr.3d 674 (2020). These amendments became effective on January 1, 2018.
Petitioner's claim that he is entitled to resentencing under Senate Bill 620 alleges only a state law claim not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d at 1118-19; see also Calderon v. Pollard, 2021 WL 707675, at *3 (C.D. Cal. Jan. 15, 2021), adopted, 2021 WL 706755 (C.D. Cal. Feb. 23, 2021) (state court's alleged misapplication of Senate Bill 620 does not present a cognizable federal habeas claim); Godfrey v. Warden PVSP, 2020 WL 3544980, at *2 (N.D. Cal. June 30, 2020) (same); Maldonado v. Koenig, 2019 WL 3530316 (E.D. Cal. Aug. 2, 2019) (same); Sillas v. Koenig, 2019 WL 6094980, at *4 (C.D. Cal. Oct. 23, 2019), adopted, 2019 WL 6053003 (C.D. Cal. Nov. 15, 2019) (whether petitioner is entitled to a modified sentence pursuant to Senate Bill 620 “involves only the application of state sentencing laws and does not give rise to a federal question cognizable on federal habeas review”).
Furthermore, Senate Bill 620 applies retroactively only to criminal judgments that were not final as of January 1, 2018, unless the defendant is subject to resentencing under some other law. See People v. Baltazar, 57 Cal.App. 5th 334, 271 Cal.Rptr.3d 296, 301-02 (2020); People v. Hargis, 33 Cal.App. 5th 199, 209-10, 244 Cal.Rptr.3d 745 (2019); People v. McDaniels, 22 Cal.App. 5th 420, 424, 231 Cal.Rptr.3d 443 (2018). “[A] case is not final for purposes of determining the retroactivity and application of a new decision addressing a federal constitutional right until direct appeal is no longer available in the state courts, and the time for seeking a writ of certiorari [in the United States Supreme Court] has lapsed or a timely filed petition for that writ has been denied.” In re Richardson, 196 Cal.App.4th 647, 664, 126 Cal.Rptr.3d 720 (2011) (citation omitted; original emphasis). Under these standards, Petitioner's criminal judgment became final many years ago. Therefore, Petitioner has not shown any state law entitlement to resentencing under Senate Bill 620. See Guerrero v. Sherman, 2020 WL 4938366, at *20 (C.D. Cal. June 30, 2020), adopted, 2021 WL 2392167 (C.D. Cal. June 11, 2021) (petitioner not entitled to habeas relief under Senate Bill 620 where judgment became final prior to Bill's effective date); Sheppard v. Johnson, 2019 WL 5773664, at *4-5 (C.D. Cal. Oct. 7, 2019), adopted, 2019 WL 5748308 (C.D. Cal. Nov. 1, 2019) (same); Chavez v. Baughman, 2018 WL 5734654, at *1-2 (C.D. Cal. Oct. 28, 2018) (same). This federal Court cannot properly reexamine the correctness of the state courts' rulings regarding the non-retroactivity of Senate Bill 620. 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 reexmine 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”); Godfrey v. Warden PVSP, 2020 WL 3544980, at *1 (federal habeas court unable to review correctness of state court decision that Senate Bill 620 was not retroactive).
The record does not show that resentencing would be appropriate under any other law.
For all of the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground Three.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and
Recommendation; and (2) denying and dismissing the Petition with prejudice.
Petitioner's request for the appointment of counsel is denied. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986).
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
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 shall 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.
MICHAEL W. FITZGERALD UNITED STATES MAGISTRATE JUDGE.