Hammond v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD GIDEON HAMMOND, Case No.: 20-cv-00261-BAS (DEB) 12 Petitioner, REPORT AND 13 v. RECOMMENDATION ON PETITION FOR WRIT OF HABEAS 14 JOSIE GASTELO, et al., CORPUS 15 Respondents. 16 17 This Report and Recommendation is submitted to United States District Judge 18 Cynthia A. Bashant pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d)(4) and 19 HC.2(a). 20 Petitioner Richard Gideon Hammond, proceeding pro se, filed a Petition for a Writ 21 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) challenging his 22 February 21, 2018 conviction and sentence in San Diego Superior Court Case 23 No. SCS280604. Dkt. No. 1. Petitioner raises two grounds for relief: (1) “the trial court 24 improperly and prejudicially admitted the results of the warrantless draw of [Petitioner’s] 25 blood”; and (2) “the trial court relied on improper factors in imposing the upper term” for 26 sentencing. Id. at 6–7. On March 12, 2020, Respondent filed a Response and lodged the 27 state court record. Dkt. Nos. 4, 5. On June 24, 2020, Petitioner filed a Traverse. 28 Dkt. No. 15. On July 15, 2020, and August 3, 2020, the parties submitted supplemental 1 briefing. Dkt. Nos. 18, 20. The Court has considered the Petition, Response, Traverse, 2 supplemental briefs, and all supporting documents. 3 For the reasons set forth below, the Court RECOMMENDS that Petitioner’s 4 Petition for Writ of Habeas Corpus be DENIED. 5 I. FACTUAL BACKGROUND 6 The following facts are taken from the California Court of Appeal’s opinion in The 7 People of the State of California v. Richard Gideon Hammond (Dkt. No. 5-13 at 3–5):1 8 Daniel R. lived in Tijuana and worked as a pizza delivery driver 9 in National City. After working the night shift and helping to 10 close the restaurant, Daniel headed home on his motorcycle around 4:30 a.m. on December 3, 2016. 11 12 Around that time, Hammond was driving southbound on Interstate 5 near the U.S.–Mexico border. At 5:12 a.m., a license 13 plate reader at the San Ysidro port of entry captured images of 14 Hammond driving a Mazda sedan in the dark without headlights on. Hammond then made a U-turn on the freeway and began 15 driving north in the southbound lanes. Several witnesses called 16 911 to report seeing a vehicle driving the wrong direction on the freeway. 17 Hammond continued driving northbound in the southbound lanes 18 without headlights and in excess of 80 miles per hour for about 19 three minutes. During this time, he traveled about three miles, passed three freeway offramps, and encountered at least one car 20 traveling southbound. 21 At about 5:18 a.m., when it was “still really dark,” Hammond 22 collided with Daniel, causing “an explosion like a ball of fire” 23 that could be felt from the northbound freeway lanes. Daniel suffered multiple catastrophic injuries that led to “instantaneous 24 death.” 25 26 27 1 Absent clear and convincing evidence to the contrary, the Court gives deference to the state courts’ factual determinations and presumes them to be correct. See 28 U.S.C. 28 1 The collision caused Hammond to lose control of his car and collide with a pickup truck that Iris G. was driving southbound 2 with her three children. Iris sustained ongoing back problems and 3 her truck was “a total loss.” Iris could not recall at trial whether Hammond’s headlights were on at the time of the collision, nor 4 could she recall ever telling officers they were.2 5 CHP Officer Javier Mendoza, who was assigned to patrol the 6 area where the collision occurred, arrived at the scene about 10 7 minutes after the collision. He saw fire department personnel gathered around Daniel, who was pronounced dead at the scene. 8 Mendoza also saw that other law enforcement personnel had 9 detained Hammond on the freeway median due to his reportedly erratic and uncooperative behavior. Based on the physical 10 evidence at the scene, Mendoza concluded Hammond collided 11 with Daniel nearly head-on while traveling the wrong direction. Hammond was transported by ambulance to a hospital for 12 evaluation and treatment of his injuries, which included a bump 13 on his forehead and bleeding from his mouth and lips. Officer Mendoza rode in the ambulance with him. During this time, 14 Mendoza observed several signs that Hammond was under the 15 influence of a controlled substance: he was agitated and trembling; he had red watery eyes, and a white coating on his lips 16 indicating a dry mouth; his heartrate was elevated; and his short- 17 term memory was impaired. Based on these observations, Mendoza placed Hammond under arrest for suspicion of driving 18 under the influence. 19 In the ambulance, Officer Mendoza conducted limited field 20 sobriety testing on Hammond and obtained his consent to a blood 21 draw. A toxicologist testified at trial that analysis of Hammond’s blood sample indicated the presence of marijuana at levels higher 22 than her lab typically sees, which indicated Hammond had 23 recently smoked marijuana. The toxicologist explained marijuana can act as a stimulant, depressant, or hallucinogen, 24 depending on the user. She also explained that marijuana can 25 26 2 A California Highway Patrol (CHP) officer who interviewed Iris after the collision 27 testified at trial that his interview notes indicate Iris told him Hammond’s headlights were on. Apart from these notes, the officer had no independent recollection of Iris’s statement 28 1 cause disorientation or confusion while driving, including that a driver “may not notice . . . if [his or her] headlights are on or off.” 2 The toxicologist added that the effects of marijuana can be felt 3 “from a matter of hours to a period of days after use.” 4 Dkt. No. 5-13 at 3–5. 5 II. PROCEDURAL BACKGROUND 6 On December 7, 2016, the San Diego County District Attorney’s Office filed a 7 felony Complaint in the San Diego County Superior Court charging Petitioner with one 8 count of Vehicular Manslaughter Non-Alcohol with Gross Negligence in violation of 9 California Penal Code § 192(c)(1). Dkt. No. 5-1 at 7–9.3 On January 24, 2018, Petitioner, 10 through counsel, filed a motion pursuant to California Penal Code § 1538.5(i) to suppress 11 all evidence obtained from the warrantless blood draw. Dkt. No. 5-2 at 7–11. On 12 February 12, 2018, the Superior Court held a hearing and heard testimony from the officer 13 who obtained Petitioner’s consent to the blood draw. Dkt. No. 5-4 at 26–39; 42–45. The 14 Superior Court found Petitioner voluntarily consented to the blood draw and denied 15 Petitioner’s motion. Id. at 69. 16 On February 21, 2018, a jury convicted Petitioner of vehicular manslaughter with 17 gross negligence and found true the allegation that Petitioner personally inflicted great 18 bodily injury in the commission of the offense. Dkt. No. 5-8 at 72. On April 25, 2018, the 19 Superior Court imposed a six-year sentence. Dkt. No. 5-9 at 37. 20 On August 2, 2018, Petitioner filed an appeal brief arguing the Superior Court erred 21 by: (1) denying his motion to suppress the evidence derived from the blood draw; and 22 (2) considering irrelevant and improper aggravating factors to impose a six-year, upper 23 term sentence. Dkt. No. 5-10. On May 17, 2019, the California Court of Appeal affirmed 24 25 26 27 3 At the August 16, 2017 preliminary hearing, the Superior Court deemed the 28 1 the judgment. Dkt. No. 5-13 at 2, 24. On June 10, 2019, the California Supreme Court 2 denied Petitioner’s petition for review. Dkt. No. 5-15. 3 On February 11, 2020, Petitioner filed this Petition. Dkt. No. 1. On April 14, 2020, 4 Petitioner filed a Notice of Change of Address and, through his May 19, 2020 motion to 5 appoint counsel, informed the Court of his March 8, 2020 release from California Men’s 6 Colony–West. See Dkt. Nos. 6, 10 at 3. In light of Petitioner’s release, the Court requested 7 additional briefing to address whether Petitioner’s challenge to the length of his sentence 8 is moot. Dkt. No. 17. On August 3, 2020, Petitioner responded that he is on parole “under 9 legal supervision by a state agent” and is, therefore, subject to various limitations, including 10 traveling. Dkt. No. 20 at 5. 11 III. STANDARD OF REVIEW 12 This Petition is governed by the provisions of the Antiterrorism and Effective Death 13 Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. Under the AEDPA, a federal 14 court will not grant a habeas petition challenging any matter adjudicated on the merits by 15 the state court unless that decision was: (1) contrary to, or involved an unreasonable 16 application of clearly established federal law; or (2) based on an unreasonable 17 determination of the facts in light of the evidence presented at the state court proceeding. 18 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7–8 (2002). 19 The “contrary to” clause applies if the state court adopted a rule different from 20 Supreme Court cases or decided a case differently than the Supreme Court on a set of 21 materially indistinguishable facts. 28 U.S.C. § 2254(d)(1); Bell v. Cone, 535 U.S. 685, 694 22 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). The “unreasonable 23 application” clause applies if the state court correctly identified the governing legal 24 principle from Supreme Court decisions, but unreasonably applied those principles to the 25 facts of a particular case. 28 U.S.C. § 2254(d)(2); Bell, 535 U.S. at 694. A merely incorrect 26 or erroneous decision does not satisfy the “unreasonable application” clause. Id. at 694 27 (“An unreasonable application is different from an incorrect one.”). 28 1 In deciding a state prisoner’s habeas petition, a federal court is not called upon to 2 decide whether it agrees with the state court’s determination; instead, the court applies an 3 extraordinarily deferential review, inquiring only whether the state court’s decision was 4 objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (“Where, as 5 here, the state court’s application of governing federal law is challenged, it must be shown 6 to be not only erroneous, but objectively unreasonable.”); Medina v. Hornung, 386 F.3d 7 872, 877 (9th Cir. 2004) (“Extraordinarily deferential to the state courts, the unreasonable 8 application clause does not trigger habeas relief unless the state court’s analysis was 9 objectively unreasonable.”) (internal quotations omitted). 10 Where there is no reasoned decision from the highest state court to which the claim 11 was presented, the Court “looks through” to the last reasoned state court decision and 12 presumes it provides the basis for the higher court’s denial of a claim or claims. Ylst v. 13 Nunnemaker, 501 U.S. 797, 803 (1991). 14 IV. DISCUSSION 15 Petitioner raises two claims for relief. First, he contends the Superior Court erred by 16 denying his motion to suppress his blood draw results. Second, Petitioner contends the 17 Superior Court erred by considering irrelevant aggravating factors to impose an upper 18 sentencing term. Neither claim entitles Petitioner to habeas relief. 19 A. Petitioner Is Not Entitled to Habeas Relief on His Claim Challenging the Denial of His Motion to Suppress Evidence 20 In his first claim, Petitioner contends the police had “ample” time to procure a 21 warrant and he lacked the ability to consent due to the effects of the collision, 22 administration of antipsychotic medication, and impaired consciousness. Dkt. No. 1 at 26– 23 27. In response, Respondent argues that Petitioner’s Fourth Amendment claim is barred 24 under the rule set forth in Stone v. Powell, 428 U.S. 465 (1976). 25 In Stone, the Supreme Court held that “[w]here the State has provided an opportunity 26 for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted 27 federal habeas corpus relief on the ground that evidence [was] obtained in an 28 1 unconstitutional search or seizure. . . .” Id. at 494; see also Locks v. Summer, 703 F.2d 403, 2 408 (9th Cir. 1983) (finding evidence obtained in an illegal search that was alleged to be 3 improperly admitted at trial fell squarely within the Stone rule: “In Stone, the Supreme 4 Court held that Fourth Amendment claims are not cognizable in habeas proceedings.”). 5 Instead, the “relevant inquiry is whether petitioner had the opportunity to litigate his claim, 6 not whether he did in fact do so or even whether the claim was correctly decided.” Ortiz- 7 Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). 8 California Penal Code § 1538.5 allows criminal defendants to move to suppress 9 evidence obtained in violation of the Fourth Amendment. This statute, therefore, provides 10 for “full and fair litigation” of Fourth Amendment claims. See Gordon v. Duran, 895 F.2d 11 610, 613 (9th Cir. 1990) (“Under California law, a defendant can move to suppress 12 evidence on the basis that it was obtained in violation of the fourth amendment.”) (citing 13 Cal. Pen. Code § 1538.5); Esparza v. Schomig, No. 09-cv-01974-L (JMA), 2010 WL 14 5535756, at *5–6 (S.D. Cal. Nov. 19, 2010) (finding § 1538.5 “provides criminal 15 defendants with an opportunity for ‘full and fair litigation’ of their Fourth Amendment 16 claims, regardless of whether the criminal defendant litigates the issue.”), report and 17 recommendation adopted, 2011 WL 42790, at *1 (Jan. 6, 2011). 18 Here, Petitioner does not contend he was not provided a full and fair opportunity to 19 litigate his Fourth Amendment claim. He claims only that it was wrongly decided. 20 Dkt. No. 1 at 33–44. This does not present a viable claim under Stone. The Court, therefore, 21 recommends denial of Petitioner’s first ground for habeas relief. 22 B. Petitioner Is Not Entitled to Habeas Relief on His Claim Challenging His Sentence 23 Petitioner’s second claim is that the Superior Court abused its discretion by imposing 24 an upper term sentence. Dkt. No. 1 at 45. Petitioner claims that the Superior Court 25 erroneously based its sentence “upon facts that do not render the offense distinctively worse 26 27 28 1 than it would have otherwise been” and “that constitute elements or common 2 characteristics of the offense.” Id. at 48. 3 1. Petitioner’s sentencing claim is not moot 4 As a preliminary matter, the Court addresses whether Petitioner’s challenge to his 5 sentence is moot. Petitioner was incarcerated at California Men’s Colony State Prison– 6 West when he filed this Petition. He is now released on parole. Respondent contends 7 Petitioner’s sentencing claims are, therefore, moot. Dkt. No. 18 at 1–2. 8 Release on supervision, however, does not moot a sentencing appeal. See Mujahid 9 v. Daniels, 413 F.3d 991, 994–95 (9th Cir. 2005) (holding appeal not moot despite 10 intervening release of inmate into supervised release because court could reduce period of 11 supervised release); see also Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir. 2001) 12 (ruling the “possibility” the sentencing court might reduce a term of supervised release 13 prevented a petition from being moot); United States v. Verdin, 243 F.3d 1174, 1178 (9th 14 Cir. 2001) (holding a defendant on supervised release retained a personal stake in the 15 appeal of his sentence because, if he prevailed, “he could be resentenced to a shorter period 16 of supervised release”). 17 Courts have extended and applied the Ninth Circuit’s holdings to state habeas 18 claims. See Hodges v. Newland, 172 F. Supp. 2d 1245, 1248 (N.D. Cal. 2001) (“Although 19 [petitioner] has completed the institutional phase of his sentence, he is now on parole; his 20 parole prevents this case from being moot.”); Smith v. Rackley, No. 18-cv-005-SVW-LAL, 21 2019 WL 3209449, at *1 n.3 (C.D. Cal. Mar. 12, 2019) (“Petitioner’s release on parole 22 does not moot his Petition. . . . Had Petitioner been successful at the [sentence] hearing he 23 could have received a lesser sentence or been released free of any parole terms.”), report 24 and recommendation adopted, 2019 WL 3205794, at * 1 (July 15, 2019). The Court, 25 therefore, will reach the merits of Petitioner’s sentencing claim. 26 2. Petitioner’s sentencing claim does not pose a federal question 27 Petitioner contends that the Superior Court abused its discretion in finding that 28 aggravating factors supported an upper-term sentence. Respondent counters, and the Court 1 agrees, that this is not a viable habeas claim because it does not present a federal 2 constitutional question. 3 Claims solely involving the interpretation or application of state law are not 4 cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We 5 have stated many times that ‘federal habeas corpus relief does not lie for errors of state 6 law.’”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Petitioner does not claim any 7 federal constitutional defect in his sentence. Instead, he argues only that the Superior Court 8 abused its discretion by disregarding mitigating factors and considering only aggravating 9 factors in imposing an upper term. Dkt. No. 1 at 48–55. This claim, however, is not 10 cognizable on federal habeas review. See Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th 11 Cir. 1989) (Application of “California’s sentence enhancement provisions is [an 12 unreviewable] question of state sentencing law.”). 13 3. Petitioner’s sentence did not violate due process 14 A sentencing error may violate due process if the state court misapplied its 15 sentencing laws in an arbitrary or capricious manner. See Richmond v. Lewis, 506 U.S. 40, 16 50 (1992) (“[T]he federal, constitutional question is whether [the sentencing error] is so 17 arbitrary or capricious as to constitute an independent due process . . . violation.”). “Absent 18 a showing of fundamental unfairness, a state court’s misapplication of its own sentencing 19 laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 20 1994). Nothing fundamentally unfair occurred here. 21 During the sentencing hearing, the Superior Court considered Petitioner’s mitigating 22 evidence, but found it was outweighed by at least one aggravating factor. Dkt. No. 5-9 23 at 36. The Court of Appeal conducted a detailed analysis of the sentencing judge’s findings 24 and determined: “because marijuana use is not an element of vehicular manslaughter with 25 gross negligence, the trial court could properly consider it an aggravating factor.” 26 Dkt. No. 5-13 at 23. The Court of Appeal concluded that ample evidence supported at least 27 one aggravating factor set forth under state law, and, therefore, justified imposition of the 28 upper term sentence. Id. at 22–23. The state courts’ decisions comport with due process. 1 See Henderson v. Diaz, No. 18-cv-09212-PSG-KES, 2019 WL 2164642, at *6 (C.D. Cal. 2 Feb. 28, 2019) (“Even assuming . . . that this factual record shows that the sentencing judge 3 violated PC section 1170(b)’s prohibition against dual use, Petitioner cannot show that his 4 resulting sentence was fundamentally unfair. The trial judge cited numerous other 5 aggravating circumstances . . . [a]ny one of those was legally sufficient to support the trial 6 court’s discretionary imposition of the upper term.”), report and recommendation adopted, 7 2019 WL 2162993, at *1 (May 16, 2019). 8 Although Petitioner claims that the Superior Court impermissibly relied on two other 9 factors, see Dkt. No. 1 at 54, the California Supreme Court has held that “under the 10 [Determinate Sentencing Law,] the presence of one aggravating circumstance renders it 11 lawful for the trial court to impose an upper term sentence.” People v. Black, 161 P.3d 12 1130, 1140 (Cal. 2007). Moreover, “[w]hen a judgment of imprisonment is to be imposed 13 and the statute specifies three possible terms, the choice of the appropriate term shall rest 14 within the sound discretion of the court.” Cal. Penal Code § 1170(b); see Lloyd v. Gonzalez, 15 No. 11-cv-3321-PJW, 2012 WL 84046, at *3 (C.D. Cal. Jan. 10, 2012) (“Under [the 2007 16 amendment to California Penal Code § 1170(b)] the trial judge was authorized in its 17 discretion to sentence Petitioner to the upper term without any aggravating factors being 18 proven to a jury or admitted by Petitioner.”); Juarez v. Allison, No. 10-cv-10001-GW-E, 19 2011 WL 3654449, at *5 (C.D. Cal. Mar. 22, 2011) (ruling pursuant to amended version 20 of § 1170(b), a trial court need not make any findings concerning factors in aggravation or 21 mitigation to impose a selected term). Petitioner’s sentence was within the maximum set 22 out in the statute of conviction, Cal. Penal Code §§ 192(c)(1), 193(c)(1). 23 In sum, the Superior Court’s imposition of an upper term sentence was not arbitrary 24 and capricious. To the contrary, it complied with California law. Petitioner’s sentence, 25 therefore, was not fundamentally unfair and did not offend due process. 26 27 28 1 V. CONCLUSION & RECOMMENDATION 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED the Court issue an 3 ||Order: (1) approving and adopting this Report and Recommendation; and (2) denying 4 || Petitioner’s Petition of Writ of Habeas Corpus. 5 IT IS ORDERED that no later than October 27, 2020, any party to this action may 6 || file written objections with the Court and serve a copy on all parties. The document should 7 || be captioned “Objections to Report and Recommendation.” 8 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 9 Court and served on all parties by November 6, 2020. 10 The parties are advised that failure to file objections within the specified time may 11 || waive the right to raise those objections on appeal of the Court’s order. See Turner v. 12 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 13 1991). 14 IT IS SO ORDERED. 15 ||Dated: October 5, 2020 — 6 Dando oa 7 Honorable Daniel E. Butcher United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28