(HC) Hale v. Asuncion

• Court: District Court, E.D. California
• Decided: October 30, 2019
• Docket: 2:18-cv-01924
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH DOMINIC HALE, No. 2:18-cv-1924-JAM-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 DEBBIE ASUNCION, 15 Respondent. 16 17 Petitioner is a California state prisoner who, proceeding with counsel, brings an 18 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in the 19 Sacramento County Superior Court of attempted deliberate and premeditated murder (Pen. Code 20 §§ 187, subd. (a), 664) and firearm enhancements (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 21 12022.53, subds. (b), (c), (d)). The instant petition raises the following claims: (1) the trial 22 court’s failure to properly instruct the jury as to the elements of petitioner’s defense violated his 23 Fourteenth Amendment due process rights and Sixth Amendment right to a jury trial; (2) 24 petitioner’s trial counsel was ineffective in failing to object to the foregoing instructional error; 25 (3) the state court of appeal unreasonably applied United States Supreme Court precedent when it 26 determined that petitioner was not prejudiced by the trial court’s denial of a jury trial as to 27 whether his prior conviction was a ‘strike’; and (4) petitioner’s Fourteenth Amendment due 28 ///// 1 process rights were violated when the state court of appeal determined that there was sufficient 2 evidence to support a finding that his prior conviction was a strike. 3 For the reasons stated below, it is recommended that the petition be denied in its entirety. 4 FACTUAL BACKGROUND 5 Joe Williams (“Joe”) - petitioner’s co-defendant - was cousins with Julian Williams 6 (“Julian”). In mid- February 2010, Joe phoned Julian and asked him to come to his home and 7 collect an SKS assault-style rifle. Joe explained that he was currently fighting with his girlfriend, 8 sometimes violently, and was concerned that police responding to a domestic violence incident 9 might discover the gun. Julian took the gun. 10 On February 28, 2010, Julian had the rifle in his vehicle when he was stopped by police. 11 A victim had told police that they had been verbally threatened by someone claiming to have an 12 SKS rifle and Julian’s vehicle matched their description. Officers found the rifle in the vehicle, 13 confiscated it, and arrested Julian for possession of a firearm. The next day, Julian posted the six- 14 thousand dollar bail. 15 Soon after, Joe called Julian and demanded payment of three hundred and fifty dollars for 16 the confiscated rifle. Joe threatened to shoot Julian if he did not comply with the demands. 17 These threats were repeated by phone and voice-mail several times. 18 On March 7, 2010, Julian was at his residence with his girlfriend Zinha Sylvester. At 19 approximately 10:30 p.m., a gun was fired two or three times at the house. After investigating, 20 Julian discovered three bullet holes in his garage door. Julian called Joe and demanded to know 21 whether he was responsible for the shooting. Joe denied responsibility. Police arrived shortly 22 thereafter, and Julian informed them of his belief that Joe was responsible. 23 On March 10, 2010, Julian went with Sylvester to a shopping center where she had her 24 eyebrows waxed. As the two exited the salon, Joe confronted them and again demanded payment 25 for the confiscated rifle. Julian explained that, having recently posted six-thousand dollar bail, he 26 did not have the money. Irritated, Joe indicated a willingness to physically fight Julian, but 27 ultimately turned and walked away. 28 ///// 1 Julian continued toward his parked vehicle and, on the way, encountered petitioner. 2 Petitioner had accompanied Joe to the shopping center that day and had watched Joe and Julian 3 nearly come to blows over payment for the gun. To this point, Julian had met petitioner on only 4 one other occasion and had no history with him. Upon seeing Julian, petitioner said something to 5 the effect of “Nigga, you got my gun took. You think we playing.” Julian had little time to react 6 before petitioner fired a gun at him several times, from a distance of roughly five or six feet. 7 Julian suffered gunshot wounds to his arm, elbow, and penis. He survived the shooting. 8 At trial, petitioner stated that he believed Julian was carrying a gun based on the latter’s 9 assertion, made during the confrontation with Joe, that he “stay[ed] strapped.” He claimed to 10 have seen Julian reach under his shirt and, believing he was going for a gun, chose to fire first. 11 Petitioner stated that he aimed low on Julian’s body because he intended only to injure, rather 12 than kill him. Petitioner claimed that he only realized that Julian was not armed after he saw the 13 latter hit the ground with an empty hand. 14 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 15 I. Applicable Statutory Provisions 16 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 17 1996 (“AEDPA”), provides in relevant part as follows: 18 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be 19 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - 20 (1) resulted in a decision that was contrary to, or involved 21 an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 22 States; or 23 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented 24 in the State court proceeding. 25 Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a 26 state prisoner’s application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S. 27 362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review,” or 28 “by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong 1 (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of 2 constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc). 3 The statute applies whenever the state court has denied a federal claim on its merits, 4 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100 5 (2011). State court rejection of a federal claim will be presumed to have been on the merits 6 absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing 7 Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is 8 unclear whether a decision appearing to rest on federal grounds was decided on another basis)). 9 “The presumption may be overcome when there is reason to think some other explanation for the 10 state court's decision is more likely.” Id. at 785. 11 A. “Clearly Established Federal Law” 12 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing 13 legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 14 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute “clearly established 15 Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in 16 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S. Ct. 1446, 17 1450 (2013). 18 B. “Contrary To” Or “Unreasonable Application Of” Clearly Established Federal Law 19 Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and 20 mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two 21 clauses of § 2254(d)(1) create two distinct exceptions to AEDPA’s limitation on relief. Williams, 22 529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be 23 given independent effect, and create two categories of cases in which habeas relief remains 24 available). 25 A state court decision is “contrary to” clearly established federal law if the decision 26 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Id. at 405. This 27 includes use of the wrong legal rule or analytical framework. “The addition, deletion, or 28 1 alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply 2 controlling Supreme Court law under the ‘contrary to’ clause of the AEDPA.” Benn v. Lambert, 3 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia 4 Supreme Court’s ineffective assistance of counsel analysis “contrary to” Strickland1 because it 5 added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir. 6 2010) (California Supreme Court’s Batson2 analysis “contrary to” federal law because it set a 7 higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533 8 F.3d at 734 35 (Arizona court’s application of harmless error rule to Faretta3 violation was 9 contrary to U.S. Supreme Court holding that such error is structural). A state court also acts 10 contrary to clearly established federal law when it reaches a different result from a Supreme Court 11 case despite materially indistinguishable facts. Williams, 529 U.S. at 406, 412 13; Ramdass v. 12 Angelone, 530 U.S. 156, 165 66 (2000) (plurality op’n). 13 A state court decision “unreasonably applies” federal law “if the state court identifies the 14 correct rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the 15 particular state prisoner’s case.” Williams, 529 U.S. at 407 08. It is not enough that the state 16 court was incorrect in the view of the federal habeas court; the state court decision must be 17 objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 21 (2003). This does not mean, 18 however, that the § (d)(1) exception is limited to applications of federal law that “reasonable 19 jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit’s 20 overly restrictive interpretation of “unreasonable application” clause). State court decisions can 21 be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when 22 they fail to give appropriate consideration and weight to the full body of available evidence, and 23 ///// 24 ///// 25

26 1 Strickland v. Washington, 466 U.S. 668 (1984).

27 2 Batson v. Kentucky, 476 U.S. 79 (1986).

28 3 Faretta v. California, 422 U.S. 806 (1975). 1 when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins, 2 539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v. 3 McCollum, 558 U.S. 30, 42 (2009). 4 The “unreasonable application” clause permits habeas relief based on the application of a 5 governing principle to a set of facts different from those of the case in which the principle was 6 announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern 7 before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a 8 general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA 9 deference does not apply to the federal court’s adjudication of the claim. Id. at 948. 10 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 11 Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court 12 reasonably applied clearly established federal law to the facts before it. Id. In other words, the 13 focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. 14 Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review 15 is confined to “the state court’s actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738 16 (emphasis in original). A different rule applies where the state court rejects claims summarily, 17 without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court 18 denies a claim on the merits but without a reasoned opinion, the federal habeas court must 19 determine what arguments or theories may have supported the state court’s decision, and subject 20 those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786. 21 C. “Unreasonable Determination Of The Facts” 22 Relief is also available under AEDPA where the state court predicated its adjudication of 23 a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly 24 limits this inquiry to the evidence that was before the state court. 25 Even factual determinations that are generally accorded heightened deference, such as 26 credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For 27 example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief 28 where the Texas court had based its denial of a Batson claim on a factual finding that the 1 prosecutor’s asserted race neutral reasons for striking African American jurors were true. 2 Miller El, 545 U.S. at 240. 3 An unreasonable determination of facts exists where, among other circumstances, the 4 state court made its findings according to a flawed process – for example, under an incorrect 5 legal standard, or where necessary findings were not made at all, or where the state court failed to 6 consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox, 7 366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state 8 court makes evidentiary findings without holding a hearing and giving petitioner an opportunity 9 to present evidence, such findings clearly result in a ‘unreasonable determination’ of the facts” 10 within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055 11 (9th Cir. 2003) (state court's factual findings must be deemed unreasonable under section 12 2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings 13 consequently “were made without . . . a hearing”), cert. denied, 543 U.S. 1038 (2004); Killian v. 14 Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (“state courts could not have made a proper 15 determination” of facts because state courts “refused Killian an evidentiary hearing on the 16 matter”), cert. denied, 537 U.S. 1179 (2003). 17 A state court factual conclusion can also be substantively unreasonable where it is not 18 fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S. 19 at 528 (state court’s “clear factual error” regarding contents of social service records constitutes 20 unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state 21 court’s finding that the prosecutor’s strike was not racially motivated was unreasonable in light 22 of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state 23 court unreasonably found that evidence of police entrapment was insufficient to require an 24 entrapment instruction), cert. denied, 540 U.S. 963 (2003). 25 II. The Relationship of § 2254(d) To Final Merits Adjudication 26 To prevail in federal habeas proceedings, a petitioner must establish the applicability of 27 one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional 28 invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 1 2008) (en banc). There is no single prescribed order in which these two inquiries must be 2 conducted. Id. at 736, 37. The AEDPA does not require the federal habeas court to adopt any 3 one methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 4 In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap. 5 Accordingly, “[a] holding on habeas review that a state court error meets the § 2254(d) standard 6 will often simultaneously constitute a holding that the [substantive standard for habeas relief] is 7 satisfied as well, so no second inquiry will be necessary.” Frantz, 533 F.3d at 736. In such cases, 8 relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 9 1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court’s conclusion 10 that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321 11 F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court’s failure 12 to conduct a constitutionally sufficient inquiry into a defendant’s jury selection challenge, and 13 granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1) 14 unreasonableness in the state court’s refusal to consider drug addiction as a mitigating factor at 15 capital sentencing, and granting penalty phase relief). 16 In other cases, a petitioner’s entitlement to relief will turn on legal or factual questions 17 beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be 18 separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute 19 or the existence of constitutional error depends on facts outside the existing record, an evidentiary 20 hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary 21 hearing after finding § 2254(d) satisfied). 22 DISCUSSION 23 I. Failure to Properly Instruct on Self-Defense 24 Petitioner argues that his rights were violated when the trial court provided an erroneous 25 self-defense instruction. 26 A. Last Reasoned Decision 27 The court of appeal issued the last reasoned decision when it denied this claim on direct 28 appeal: 1 Hale argues the trial court misinstructed the jury on self-defense and thereby violated his state and federal constitutional rights to due 2 process and a fair jury trial. Williams in his reply brief joins in the argument, noting that since his liability is as an aider and abettor, 3 Hale's instructional error argument concerning self-defense is applicable to him as well. We conclude Hale's argument lacks merit. 4 Hale's theory of the case, based on his own testimony, was that he 5 shot the victim in self-defense during a spontaneous argument between the victim and Williams, into which Hale injected himself 6 to support Williams, but which the victim escalated into a deadly fight by saying he “stay[s] strapped,” and then making a “‘reachin’” 7 motion, which Hale said he interpreted as a move to pull out a gun. Hale claimed he was not trying to kill the victim but only “shoot him 8 so we [Hale and defendant Williams] can get away.” 9 The trial court instructed the jury on self-defense and imperfect self- defense. Using CALCRIM No. 505 concerning self-defense, the trial 10 court told the jury: “A defendant is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably 11 necessary, to pursue an assailant until the danger of great bodily injury has passed. This is so even if safety could have been achieved 12 by retreating.” 13 Using CALCRIM No. 3471, the trial court also instructed on initial aggressor/mutual combat as follows: “A person who engages in 14 mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND 15 [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop 16 fighting and that he had stopped fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent 17 continued to fight. [¶] However, if defendant Isaiah Hale used only non-deadly force, and the opponent responded with such sudden and 18 deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force 19 and was not required to try to stop fighting, communicate the desire to stop to the opponent, or give the opponent a chance to stop 20 fighting.” (Italics added.) 21 The italicized text is an optional bracketed paragraph in CALCRIM No. 3471. It is the portion of the instruction at issue here. Hale 22 belatedly complains the trial court should have added the words “in safety” to the bracketed language, so that it would read if Hale “could 23 not withdraw in safety from the fight” after his opponent used deadly force, then Hale could use deadly force. He argues, “There was never 24 any real dispute as to whether Mr. Hale could have retreated. He could have. The only real question was whether he could do so safely 25 and — if not — whether he was nevertheless entitled to rely on self- defense.” Hale claims the trial court “removed from the jury's 26 consideration” whether he could have withdrawn in safety. 27 We agree with the People that Hale forfeited this argument by failing to object in the trial court. A party may not complain on appeal that 28 a jury instruction correct in law and responsive to the evidence was 1 too general or too incomplete unless the party has requested appropriate clarifying or amplifying language in the trial court. 2 (People v. Lang (1989) 49 Cal.3d 991, 1024, 264 Cal. Rptr. 386, 782 P.2d 627.) Hale argues there was no forfeiture because his contention 3 is that the instruction given was incorrect, and such contentions may be raised for the first time on appeal under section 1259. Hale further 4 argues that, if the contention was forfeited, then his trial counsel rendered ineffective assistance of counsel by failing to object in the 5 trial court. 6 Even if not forfeited, the contention fails on its merits because the instruction does not use the word "withdraw" in a vacuum but rather 7 in the context of withdrawing from a “sudden and deadly” escalation of the fight by the opponent. The California Supreme Court has used 8 the term “withdraw” in this context interchangeably with “retreat in safety.” 9 Specifically, in People v. Hecker (1895) 109 Cal. 451, 42 P. 307 10 (Hecker), the Supreme Court said the defendant was entitled to an instruction justifying the killing if the defendant “was put in such 11 sudden jeopardy by the acts of the deceased that [the defendant] could not withdraw . . . .” (Id. at p. 461, superseded by statute on 12 other grounds as stated in People v. Hardin (2000) 85 Cal.App.4th 625, 633, 102 Cal. Rptr. 2d 262, italics added.) Later in the opinion, 13 the court explained the same concept as follows: “[i]f . . . the counter assault [by the deceased] be so sudden and perilous that no 14 opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, 15 then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.” (Hecker, 16 at p. 464, italics added.) Based on our Supreme Court's usage of the two terms interchangeably, we reject Hale's contention the 17 instruction on self-defense was wrong. 18 Hale cites People v. Quach (2004) 116 Cal.App.4th 294, 10 Cal. Rptr. 3d 196 (Quach), which reversed because the trial court failed 19 to provide any instruction on how a defendant could respond if the opponent in mutual combat responds to a simple assault by using 20 deadly force. (Id. at p. 303.) The Quach court observed that the trial court provided no instructions regarding “the rule that, ‘Where the 21 original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or other 22 excessive force. . . . If the victim uses such force, the aggressor's right of self-defense arises. . . .’ [citation], or its corollary, ‘If, however, 23 the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness 24 to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would 25 be justified in slaying, forthwith, in self-defense.’” (Id. at pp. 301- 302, citing Hecker, supra, 109 Cal. at pp. 463-464, italics added.) The 26 Quach court went on to recognize instructional language that would address the situation where an opponent in mutual combat involving 27 simple assault escalates the assault by responding with deadly force. First, it noted language approved in People v. Sawyer (1967) 256 28 Cal.App.2d 66, 63 Cal. Rptr. 749 (Sawyer), a case from this court. 1 The pertinent language in the Sawyer instruction read: “‘unless the attack is so sudden and perilous that he cannot withdraw’” (Sawyer, 2 at p. 75, fn. 2),4 language that is similar to the language used in the CALCRIM instruction here. Hale cites the other instruction noted in 3 Quach, an instruction that came from People v. Gleghorn (1987) 193 Cal.App.3d 196, 238 Cal. Rptr. 82. That instruction read: “‘[W]here 4 the counter assault is so sudden and perilous that no opportunity be given to decline further to fight and he cannot retreat with safety he 5 is justified in slaying in self-defense.’” (Gleghorn, at p. 201, italics added.) It is the Gleghorn instruction Hale contends should have 6 been given here. But in making that argument, he fails to note that the Quach court reversed because there was no “instruction such as 7 the one approved in” Gleghorn and that the court also identified the instruction in Sawyer as such an instruction. (Quach, at pp. 302-303, 8 italics added.) Given the Quach court’s recognition of the instruction in Sawyer, we do not read Quach as requiring any specific language. 9 Indeed, it seems clear from its reference to the Sawyer instruction that had that instruction been given by the trial court in Quach, the 10 court of appeal would not have found error. Our view of this issue explains why the CALCRIM Committee included language in the 11 optional bracketed paragraph in CALCRIM No. 3471 that more approximates the instruction in Sawyer and leaves out the redundant 12 reference to “‘with safety’” from the Gleghorn instruction.5 13 Here, in contrast to Quach where there was no instruction given such as the ones approved in Sawyer and Gleghorn, the trial court did 14 instruct the jury on the principle that no retreat was necessary if the victim escalated the attack to “such sudden and deadly force that the 15 defendant could not withdraw.” Although the instruction did not use the words “with safety,” as we have noted, no such talismanic words 16 were needed. “[W]ithdraw from the fight [that had suddenly turned deadly]” and “retreat in safety” are the same thing. If the person is 17 assaulted with sudden and deadly force while attempting to withdraw, then there was no actual withdrawal from the fight. The 18 person would still be in the fight. In other words, withdrawing from the fight means the person has escaped from the fight. By definition, 19 that means the person is safe. 20 21 4 [Footnote seven in original text] The entire instruction approved by the court in Sawyer reads as follows: “‘Where a person seeks or induces a quarrel which 22 leads to the necessity in his own defense of using force against his adversary, the right to stand his ground and thus defend himself is not immediately available to 23 him, but, instead he first must decline to carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his adversary of his desire for 24 peace and of his abandonment of the contest unless the attack is so sudden and perilous that he cannot withdraw. Only when he has done so will the law justify him 25 in thereafter standing his ground and using force upon his antagonist.’” (Sawyer, supra, 256 Cal.App.2d at p. 75, fn. 2.) 26 27 5 [Footnote eight in original text] We also note that the CALCRIM No. Committee cites Hecker, Quach, and Sawyer in the bench notes, but not Gleghorn. 28 (CALCRIM No. 3471, Bench Notes.) 1 Moreover, even assuming for the sake of argument that the instruction was ambiguous, it is not reasonably likely the jurors here 2 would have applied the instruction improperly. (People v. Williams (2013) 56 Cal.4th 630, 688-689, 156 Cal. Rptr. 3d 214, 299 P.3d 3 1185, citing Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S. Ct. 475, 116 L.Ed.2d 385, 399] [in reviewing an ambiguous instruction, 4 courts inquire whether there is a reasonable likelihood the jury applied the instruction in a way that violates the Constitution].) Hale 5 argues Quach, supra, 116 Cal.App.4th at page 303, requires application of the harmless error test of Chapman v. State of 6 California (1967) 386 U.S. 18 [87 S. Ct. 824, 17 L.Ed.2d 705]. But Quach said this standard applied to erroneous instructions. (Quach, 7 at p. 303.) Here, the issue would be an ambiguous instruction, not an erroneous instruction. In any event, the error is harmless under any 8 standard. 9 We note that the prosecutor did not misuse the instruction in closing argument to the jury or exacerbate the purported ambiguity. She 10 argued that Hale was the initial aggressor, and the victim was not a mutual combatant. She highlighted Hale's testimony that he was not 11 scared when the victim said he had a gun, and therefore he kept walking toward the victim, assertedly in order to better hear what the 12 victim was saying. In support of her theory that Hale acted with deliberation rather than in self-defense, the prosecutor argued, “Like 13 really? What would [the victim] be saying that was so important at that point in time after he just said I stay strapped according to [Hale] 14 that you're gonna run up on that person. That's ridiculous.” The prosecutor did not argue the law required that Hale try to escape 15 regardless of whether it was safe to do so before he could respond to deadly force with deadly force. 16 Furthermore, it is not reasonably likely the jurors would have thought 17 a person had to withdraw at the risk of being killed or injured when the purpose of self-defense is to avoid being killed or injured. 18 Contrary to Hale’s argument, there was no federal constitutional error here precluding or limiting the jury from full consideration of 19 Hale's theory of the case.6

20 6 [Footnote nine in original text] Hale contends the length of deliberations, 21 about 19 hours, shows this was a close case. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 907, 184 Cal. Rptr. 165, 647 P.2d 569.) We disagree. The jury 22 deliberated for one hour on the first day of deliberations, returned the next day and deliberated from 9:00 a.m. to 4:30 p.m. (during which the jury asked a question 23 about aiding and abetting culpability for discharge of the firearm). The third day, the jury deliberated from 9:00 a.m. to 4:30 p.m. The fourth day, the jury deliberated 24 from 9:00 a.m. until 4:15 p.m., when they sent the court a note that they had reached a verdict on everything except one count for one person. The jury did not request 25 additional instructions on self-defense during deliberations. The following morning, the trial court entered the verdicts on count two and declared a mistrial as to count 26 one, shooting at an inhabited dwelling, alleged against Williams only. A little more than three days of deliberations does not prove a close case, because the case 27 involved two incidents and two defendants with multiple issues, and the jury was unable to reach a verdict on the count related to the first incident involving the drive- 28 1 Finally, any instructional error here is harmless by any standard given the lack of evidence of mutual combat or that Hale started a 2 fight. Hale did not physically fight the victim. The victim did testify that Hale asked if the victim was the person who got his gun “‘took’” 3 or something to that effect and then said something to the victim like, “‘Nigga, you got my gun took. You think we playing,’” before Hale 4 began shooting. According to Hale's own testimony, he never fought the victim, there was no physical assault occurring when he circled 5 around the pickup and approached the victim and Hale had not used non-deadly force against the victim. There was only an exchange of 6 words. Hale claimed he pulled out his gun and began shooting because the victim had said he was “strapped” and reached toward 7 his waistband. 8 As noted, CALCRIM No. 3471, as read to the jury in this case, begins, “A person who engages in mutual combat or who starts a 9 fight . . . .” It goes on to say in the optional bracketed language at issue here, “if defendant Isaiah Hale used only non-deadly force, and 10 the opponent responded with such sudden and deadly force . . . .” Thus, non-deadly assaultive conduct by a defendant is a predicate to 11 the application of the optional bracketed paragraph in CALCRIM No. 3471. That predicate is missing here and consequently, no 12 reasonable jury could have found self-defense or imperfect self- defense based on CALCRIM No. 3471, even if the words “with 13 safety” had been added.7 14 We conclude there was no instructional error regarding initial aggressor/mutual combat and, even assuming error, it was harmless 15 under any standard. 16 Lodg. Doc. No. 10 at 13-20. Petitioner raised this claim in his petition for review to the 17 by shooting at the victim's home. The length of deliberations could as easily be 18 reconciled with the jury's conscientious performance of its civic duty, rather than a close case on the attempted murder charge. (People v. Houston (2005) 130 19 Cal.App.4th 279, 301, 29 Cal. Rptr. 3d 818.)

20 7 [Footnote ten in original text] We have discussed the wording of the 21 initial aggressor/mutual combat instruction here because the instruction was given for the jury to consider, and Hale has argued that the trial court had a sua sponte 22 duty to add language to the instruction and trial counsel was constitutionally ineffective for failing to ask for that language. But we also note that the trial court 23 would not have abused its discretion if it had not given the instruction. The optional bracketed paragraph in the instruction only applies where the defendant has 24 committed a simple assault. This was recently clarified by our high court. In People v. Salazar (2016) 63 Cal.4th 214, 202 Cal. Rptr. 3d 638, 371 P.3d 161, the court 25 wrote: “Defendant claims the self-defense instructions were incomplete because they did not include the principle that ‘”where [a] counter assault is so sudden and 26 perilous that no opportunity be given to decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense.”’ [Citations.] [Fn. 27 omitted.] However, as the Gleghorn and Quach courts made clear, this qualification only applies where the defendant commits a simple assault.” (Id. at p. 249, italics 28 added.) 1 California Supreme Court. Lodg. Doc. No. 11. That petition was summarily denied. Lodg. Doc. 2 No. 12. 3 B. Relevant Federal Law 4 The Supreme Court has “repeatedly held that a state court’s interpretation of state law, 5 including one announced on direct appeal of the challenged conviction, binds a federal court 6 sitting in habeas corpus.” See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). It 7 follows that challenges to state jury instructions based on errors of state law are not cognizable on 8 federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize 9 that it is not the province of a federal habeas court to reexamine state-court determinations on 10 state-law questions.”). Nevertheless, habeas relief may be available where a petitioner can 11 demonstrate that “the ailing instruction by itself so infected the entire trial that the resulting 12 conviction violates due process.” Id. at 72. 13 C. Analysis 14 Consistent with the foregoing, this court may not grant habeas relief on this claim merely 15 because the instruction was (allegedly) incorrect or incomplete as a matter of state law. The only 16 question is whether the instruction, as articulated, resulted in a conviction that violates due 17 process. The burden of demonstrating as much lies with petitioner and he has failed to carry it. 18 He argues that: 19 Certainly some jurors could have believed that petitioner could not invoke self-defense because he could withdraw - that is remove 20 himself - from the fight. Such jurors, on learning that petitioner was required not only to remove himself, but also to remove himself in 21 safety from the situation, could easily have found that petitioner was not guilty of murder because he was justified in acting in self- 22 defense. 23 ECF No. 1 at 23-24. Such contentions are insufficient. A habeas petitioner bears the burden of 24 showing “not merely that the errors at his trial constituted a possibility of prejudice, but that they 25 worked to his actual and substantial disadvantage, infecting his entire trial with errors of 26 constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner’s failure 27 ///// 28 ///// 1 to point to any concrete evidence of prejudice precludes a finding that this instruction infected his 2 entire trial and rendered it constitutionally unfair.8 3 II. Ineffective Assistance by Trial Counsel 4 Petitioner argues that his trial counsel was constitutionally ineffective in failing to object 5 to the trial court’s erroneous self-defense instruction (the subject of the foregoing claim). He 6 raised this claim on direct appeal and the state court of appeal acknowledged it but did not 7 address it in any detail. ECF No. 9-10 at 14. Nevertheless, as respondent persuasively argues, 8 this claim was resolved when that court determined that the instructional error claim – upon 9 which the ineffective assistance claim was contingent – lacked merit. In light of the fact that the 10 state court of appeal determined that the trial court’s instruction was correct as a matter of state 11 law, it cannot be concluded that his trial counsel was constitutionally ineffective in failing to 12 object to it. See Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (holding that “[f]ailure to 13 raise a meritless argument does not constitute ineffective assistance”). 14 III. Entitlement to a Jury Trial and Sufficient Evidence as to Prior ‘Strike’ Conviction 15 Petitioner’s last two claims bear on the state court determination that a prior conviction 16 counted as a ‘strike’ pursuant to Cal. Pen. Code § 667(e)(1).9 The court will address them 17 together. 18 ///// 19 ///// 20 ///// 21 ///// 22 8 Because the court finds that this claim fails on its merits, it does not reach respondent’s 23 alternative argument that this claim is procedurally barred. 24 9 This section provides that: 25 If a defendant has one prior serious and/or violent felony conviction 26 as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall 27 be twice the term otherwise provided as punishment for the current felony conviction. 28 1 A. Last Reasoned Decision 2 On direct appeal, the state court of appeal held: 3 B. Nature of the Prior Conviction Alleged as a Strike 4 1. Hale's Contentions 5 Hale argues the trial court improperly used his prior battery with serious bodily injury conviction (§ 243, subd. (d))10 as a strike to 6 double his sentence (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).11 Defendant notes that battery with serious bodily injury is not a strike 7 unless he personally inflicted the injury on a person who was not an accomplice. (§ 1192.7, subd. (c)(8) ["'serious felony'" includes "any 8 felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice"].) Hale argues: (1) there 9 was insufficient evidence that he personally inflicted injury12 or that the victim was not an accomplice; (2) these two factual questions 10 should have been submitted to the jury and the failure to so instruct violated defendant's Sixth Amendment right to a jury trial; and (3) 11 double jeopardy precludes retrial of the prior conviction. 12 We agree that Hale had a constitutional right to a jury determination of the personal infliction and non-accomplice elements related to the 13 strike allegation. However, we conclude that the error was harmless beyond a reasonable doubt. 14

15 16 10 [Footnote eleven in original text] Section 243, subdivision (d), states, 17 “When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail 18 not exceeding one year or imprisonment in the state prison for two, three, or four years.” 19 20 11 [Footnote twelve in original text] Under section 667, subdivision (e)(1), and section 1170.12, if a defendant has one prior serious or violent felony 21 conviction, as defined in section 667.5 or 1192.7, “that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the 22 term otherwise provided as punishment for the current felony conviction.” (§ 1170.12, subd. (c)(1).) 23 24 12 [Footnote thirteen in original text] Normally in the context of this type of serious felony, the inquiry is three pronged: "[W]hether the prior conviction 25 involved (1) personal infliction, (2) of great bodily injury, (3) on any person other than an accomplice." (People v. Wilson (2013) 219 Cal.App.4th 500, 511, 162 Cal. 26 Rptr. 3d 43 (Wilson), citing § 1192.8, subd. (a).) Hale provides no argument on appeal that the evidence was insufficient to establish that the injury inflicted was 27 great bodily injury. His focus is on the personal infliction and non-accomplice elements. 28 1 2. Additional Background 2 Hale in his trial testimony admitted he was convicted in 2009 of “a felony violation of 243(d).” When asked what kind of case it was, 3 Hale said, “Domestic violence.” When asked “to who was that with?” Hale answered, “The mother of my son.” 4 Additionally, the People submitted exhibit 36, minutes and minute 5 orders from the prior conviction, certified by the superior court clerk, which show that on March 13, 2009, before Judge Tochterman in 6 Sacramento County, Hale pleaded nolo contendere to a single count of violating section 243, subdivision (d). On April 8, 2009, Judge 7 Winn granted Hale probation conditioned in part on Hale's participation in a batterer's treatment program “pursuant to Section 8 273.5(e) [sic: (f)13] and/or 1203.[0]97(a)(6).”14 The typewritten order of probation states, “Count 2 as a strike.” The minute order of the 9 March 13, 2009, plea before Judge Tochterman bears a handwritten notation, “4/8/09 Judge Winn said Ct 2 as a strike.”15 10 The jury in this case found Hale had a prior conviction in 2009 for 11 battery with serious bodily injury in violation of section 243, subdivision (d). CALCRIM No. 3100, the standard instruction given 12 for prior convictions, was given by the trial court. The court did not tell the jury it needed to determine whether the prosecution had 13 proved the personal infliction and non-accomplice elements beyond a reasonable doubt. 14 On the day set for sentencing, Hale moved to strike the prior 15 conviction (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal. Rptr. 2d 789, 917 P.2d 628) on various grounds, 16 including that “the facts underlying the strike as indicated in the probation report are minor in the sense that it was a swollen eye and 17 a small laceration . . . .” The probation report for the current case described the incident underlying the 2009 conviction: “During a 18 verbal argument that turned physical, the 18-year-old female victim reported that her boyfriend/defendant punched her in the face causing 19 her to fall to the ground. The victim sustained a swollen eye and a

20 13[Footnote fourteen in original text] Section 273.5, subdivision (f), 21 provides that probation granted in a domestic violence case is subject to conditions in section 1203.097. 22 14 [Footnote fifteen in original text] Section 1203.097, subdivision (a), 23 states, “If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include . . 24 . [¶] . . . [¶] (6) Successful completion of a batterer's program . . . .” Section 6211, subdivision (d), of the Family Code defines “‘[d]omestic violence’” to include abuse 25 perpetrated against a person with whom the perpetrator has had a child.

26 15 [Footnote sixteen in original text] The exhibit does not contain the 27 charging document or a reporter's transcript of the plea or sentencing, and there is no indication that the trial court in the current case had before it any other documents 28 from the court's file of the prior case. 1 small laceration above her eye. The victim was transported to Mercy San Juan Hospital for further treatment.” 2 The trial court denied the motion to strike the prior conviction. The 3 court acknowledged it had discretion but said, “I think it would be an abuse of my discretion to strike Mr. Hale's [prior conviction] in light 4 of the fact that he was on probation for a serious and violent felony [the 2009 conviction] at the time he committed the instant offense. I 5 would note that the felony conviction was against a female, a person to whom it appears that he was in a dating relationship with [sic]. She 6 did receive a significant injury, and so I will decline to strike Mr. Hale's prior.” The trial court thus implicitly found that the nature of 7 the prior conviction qualified as a strike. 8 3. Applicable Legal Principles 9 For purposes of three strikes sentencing, the prosecution has the burden to prove beyond a reasonable doubt that alleged prior 10 convictions qualify as strikes. (People v. Miles (2008) 43 Cal.4th 1074, 1082, 77 Cal. Rptr. 3d 270, 183 P.3d 1236 (Miles).) Where the 11 mere fact of the conviction does not prove the offense was a serious felony, the nature of the conviction may be proved by the defendant's 12 admissions or “otherwise admissible evidence from the entire record of the conviction.” (Ibid.) “A court document, prepared 13 contemporaneously with the conviction, as part of the record thereof, by a public officer charged with that duty, and describing the nature 14 of the prior conviction for official purposes, is relevant and admissible on this issue.” (Ibid.; see also Evid. Code, § 452.5 15 [certified copy of official record of conviction is admissible to prove commission of prior conviction or other act, condition, or event 16 recorded by the record].) 17 “[I]f the prior [offense] was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how 18 the offense was committed, a court must presume the conviction was for the least serious form of the offense.” (Miles, supra, 43 Cal.4th 19 at p. 1083.) “In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the 20 conviction, the record is insufficient to establish that a serious felony conviction occurred.” (Ibid.) “On the other hand, the trier of fact may 21 draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official 22 government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and 23 accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and 24 circumstances of the prior conviction.” (Ibid.) 25 On review for sufficiency of the evidence concerning a prior conviction, we examine the record in the light most favorable to the 26 judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could 27 have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. 28 (Miles, supra, 43 Cal.4th at p. 1083.) 1 Section 1170.12 calls for doubling Hale's sentence if he has a prior conviction for a serious or violent felony as defined in sections 667.5 2 or 1192.7. (§ 1170.12, subds. (b)-(c).) Battery with serious bodily injury under section 243, subdivision (d), is not expressly listed in 3 sections 667.5 or 1192.7 and is therefore not necessarily a strike. (People v. Bueno (2006) 143 Cal.App.4th 1503, 1508, 50 Cal. Rptr. 4 3d 161 (Bueno).) However, section 1192.7, subdivision (c)(8), provides that “‘serious felony’” includes “any felony in which the 5 defendant personally inflicts great bodily injury on any person, other than an accomplice.” The element of serious bodily injury under 6 section 243 is essentially equivalent to the great bodily injury element required for a serious felony sentencing enhancement under 7 sections 667 and 1192.7. (Bueno, at p. 1508, fn. 5; People v. Moore (1992) 10 Cal.App.4th 1868, 1871, 13 Cal. Rptr. 2d 713 (Moore).) 8 4. Analysis 9 Hale argues there was insufficient evidence that he personally 10 inflicted injury on a non-accomplice. 11 However, Hale testified the battery was domestic violence against the mother of his child. This constitutes conclusive evidence that the 12 injured person was not Hale's accomplice in inflicting the battery. The person who was hurt was the victim of the crime for which 13 defendant was convicted, a crime defendant characterized as domestic violence, as opposed to assisted suicide or some crime 14 where the victim could also be an accomplice to the commission of the crime. For example, this is clearly not a case where a confederate 15 was injured by a coperpetrator during the commission of some other felony. 16 As to personal infliction by Hale, he argues there is no evidence that 17 he personally inflicted the injuries on the mother of his child. We disagree. Even if we do not consider the handwritten and typed 18 notations that the conviction was a "strike" in the record of conviction, the trial court in the 2009 case specifically required that 19 Hale himself participate in a “batterer's treatment program” as a condition of probation. The sentencing record is a record of 20 conviction that may be used to establish the nature of a strike conviction. (See People v. Smith (1988) 206 Cal.App.3d 340, 345, 21 253 Cal. Rptr. 522 [transcript of the sentencing hearing is a record of conviction]; People v. Colbert (1988) 198 Cal.App.3d 924, 930, 244 22 Cal. Rptr. 98 [abstract of judgment is a record of conviction admissible to prove a strike allegation].) Based on Hale's testimony 23 and the condition of probation noted in the records admitted to prove the strike, it was reasonable for the trier of fact in the current case, 24 here the trial court, to infer that Hale was the one who inflicted the injuries on the mother of his child in the 2009 case. (Miles, supra, 43 25 Cal.4th at p. 1083 [“trier of fact may draw reasonable inferences from the record presented”]; People v. Ledbetter (2014) 222 26 Cal.App.4th 896, 900-901, 166 Cal. Rptr. 3d 448 [same].) 27 Moreover, we disagree with Hale that a trier of fact could not consider the notations on the 2009 minute orders that indicate Hale 28 pled to a strike. Hale characterizes these notations as being “curious” 1 because one handwritten notation on the March 13, 2009, minutes was dated April 8, 2009. Hale also argues the notations are unreliable 2 hearsay of individual judge's opinions. However, the postdated handwritten notation does not detract from the typewritten statement 3 in the April 2009 probation order that the conviction was a strike. The 2009 court records indicating the battery was a “strike” are 4 admissible to show Hale pleaded no contest to a strike. (Evid. Code, §§ 452.5 [certified copy of official record of conviction is admissible 5 to prove commission of prior conviction or other act, condition, or event recorded by the record], 664 [“[i]t is presumed that official 6 duty has been regularly performed”].) We reject Hale's unsupported assertion that we should reject as meaningless “opinion” the 7 sentencing judge's inclusion in the probation order that the conviction was a strike. As we have noted, “the trier of fact may draw 8 reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government 9 document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. 10 Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of 11 the prior conviction.” (Miles, supra, 43 Cal.4th at p. 1083.) 12 We conclude substantial evidence supports the conclusion that the 2009 conviction was a serious felony offense and thus a strike within 13 the meaning of the three strikes law. However, as we shall now discuss, the trial court should not have been the trier of fact. 14 C. Right to Jury Trial on the Strike Allegation16 15 2. Analysis 16 In People v. McGee (2006) 38 Cal.4th 682, 708-709, 42 Cal. Rptr. 17 3d 899, 133 P.3d 1054 (McGee), the California Supreme Court held that a defendant has no federal constitutional right to a jury 18 determination as to whether a prior conviction qualifies as a serious felony. Rather, whether the nature of the prior conviction met the 19 requirements for a strike was a matter to be determined by the trial court, even when the trial court was required to determine facts 20 underlying the conviction. (Ibid. [no Sixth Amendment right to a jury trial regarding whether a Nevada robbery conviction qualified as a 21 22 16 [Footnote seventeen in original text] The People contend that defendant has forfeited his Sixth Amendment claim by not raising it in the trial court. A 23 challenge to the sufficiency of the evidence, founded in a violation of the Sixth Amendment right to jury trial, is cognizable on appeal without objection to the 24 evidence in the trial court. (People v. McCaw (2016) 1 Cal.App.5th 471, 477, fn. 3, 203 Cal. Rptr. 3d 914 (McCaw), citing People v. Trujillo (2010) 181 Cal.App.4th 25 1344, 1350, fn. 3, 105 Cal. Rptr. 3d 316 [“an argument that the evidence is insufficient to support a verdict is never waived”].) Moreover, the claim is not 26 forfeited because the trial court was not authorized to impose an enhanced sentence without a jury determination on the factual issues of personal infliction and non- 27 accomplice victim, and “‘[i]f a trial court imposes a sentence unauthorized by law, a reviewing court may correct that sentence whenever the error is called to the court's 28 attention.’” (Wilson, supra, 219 Cal.App.4th at p. 518.) 1 strike conviction where the elements of robbery in Nevada were different than in California, but defendant's conduct as reflected in 2 the record of conviction was conduct that would constitute a serious felony under California law].) 3 The McGee court recognized, however, that the United States 4 Supreme Court was yet to weigh in on this issue. The court wrote: “Unless and until the high court directs otherwise, we shall assume 5 that the precedents from that court and ours support a conclusion that sentencing proceedings such as those conducted below do not violate 6 a defendant's constitutional right to a jury trial. Although we recognize the possibility that the high court may extend the scope of 7 the Apprendi decision . . . , we are reluctant, in the absence of a more definitive ruling on this point by the United States Supreme Court, to 8 overturn the current California statutory provisions and judicial precedent that assign to the trial court the role of examining the 9 record of a prior criminal proceeding to determine whether the ensuing conviction constitutes a qualifying prior conviction under 10 the applicable California sentencing statute. . . . [W]e are not prepared to assume that the high court will interpret the federal 11 constitutional right to a jury trial as requiring a state to assign this function to a jury.” (McGee, supra, 38 Cal.4th at p. 686.) 12 The United States Supreme Court spoke on this matter in Descamps 13 v. United States (2013) ___ U.S. ___ [133 S. Ct. 2276, 186 L.Ed.2d 438]. Following Descamps, several courts of appeal have concluded 14 that criminal defendants have a Sixth Amendment right to have a jury determine whether conduct underlying a prior conviction qualifies 15 the conviction as a serious felony offense. (McCaw, supra, 1 Cal.App.5th at pp. 484-485 [Sixth Amendment right to jury trial was 16 violated where the trial court determined a New York robbery qualified as a California strike based on the New York plea transcript 17 showing that the defendant took property from the robbery victim's person]; People v. Denard (2015) 242 Cal.App.4th 1012, 1030-1031, 18 195 Cal. Rptr. 3d 676 [right to jury trial was violated by trial court's use of facts in a Florida probable cause affidavit to establish that 19 conduct underlying the prior conviction constituted a strike]; People v. Saez (2015) 237 Cal.App.4th 1177, 1207, 189 Cal. Rptr. 3d 72 20 [“while Descamps did not explicitly overrule McGee, Descamps's discussion of the Sixth Amendment principles applicable when prior 21 convictions are used to increase criminal sentences is clear and unavoidable”; determination by trial court that the defendant 22 personally used a firearm from the record of conviction violated the defendant's Sixth Amendment right to jury trial].) 23 Two of the post-Descamps court of appeal cases involved the 24 elements at issue here — whether the defendant personally inflicted great bodily injury on a non-accomplice in the commission of the 25 prior conviction offense. (People v. Marin (2015) 240 Cal.App.4th 1344, 1363, 193 Cal. Rptr. 3d 294 [prior conviction for vehicular 26 manslaughter; under Descamps, judicial factfinding authorized by McGee, going beyond the elements of the crime to determine 27 whether the record of conviction reveals whether the conviction was based on conduct that would constitute a serious felony under 28 California law violates the Sixth Amendment]; Wilson, supra, 219 1 Cal.App.4th at p. 516 [prior conviction for vehicular manslaughter while intoxicated; “[a] court may not impose a sentence above the 2 statutory maximum based on disputed facts about prior conduct not admitted by the defendant or implied by the elements of the 3 offense”].) 4 We agree with the reasoning in these cases. Descamps represents the guidance the California Supreme Court indicated was needed from 5 the high court before it could be said that a judicial determination of whether conduct underlying prior convictions constitutes a serious 6 felony offense violates the Sixth Amendment right to jury trial. (See McGee, supra, 38 Cal.4th at p. 709.) The determination of whether a 7 defendant personally inflicted the victim’s injuries and whether the victim was an accomplice must be made by a jury, unless a jury trial 8 is waived by the defendant. 9 3. Harmless Error 10 Even though Hale was entitled to a jury determination regarding the personal infliction and non-accomplice elements of the serious 11 felony conviction allegation, we need not reverse if we conclude the error was harmless. “‘Failure to submit a sentencing factor to the 12 jury, like failure to submit an element to the jury, is not structural error.’ [Citation.] ‘Such an error does not require reversal if the 13 reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 14 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.’” (Wilson, supra, 219 Cal.App.4th at pp. 518-519, quoting People v. French (2008) 43 15 Cal.4th 36, 52-53, 73 Cal. Rptr. 3d 605, 178 P.3d 1100 (French) [“‘The failure to submit a sentencing factor to a jury may be found 16 harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no 'evidence that could rationally lead to a 17 contrary finding.’”].) 18 We conclude beyond a reasonable doubt that a jury would have found Hale's strike allegation true. The evidence supporting findings on the 19 elements at issue is compelling and uncontested. There is no evidence that could rationally lead to a contrary finding. (French, 20 supra, 43 Cal.4th at pp. 52-53.) 21 As we have noted, serious bodily injury is the equivalent of great bodily injury for strike enhancements. (Bueno, supra, 143 22 Cal.App.4th at p. 1508, fn. 5; Moore, supra, 10 Cal.App.4th at p. 1871.) Defendant admitted the prior conviction was one of domestic 23 violence involving the mother of his child. For the reasons we have stated, the victim could not have been an accomplice. Defendant was 24 ordered to attend a batterer's treatment program. It can be reasonably inferred from these facts that defendant personally inflicted the 25 injury, even without consideration of the notations on the court documents. However, the notations on the minute orders provide 26 additional evidence that Hale pled to a strike. There can be no contrary rational conclusion. 27

28 1 The error in the trial court determining that Hale's prior conviction is a serious felony offense and thus a strike, is harmless beyond a 2 reasonable doubt. 3 Lodg. Doc. No. 10 at 20-30. Petitioner raised both claims in his petition for review to the 4 California Supreme Court. Lodg. Doc. No. 11. As noted supra, the California Supreme Court 5 summarily denied that petition. Lodg. Doc. No. 12. 6 B. Relevant Federal Law 7 1. Jury Trial 8 “Other than the fact of a prior conviction, any fact that increases the penalty for a crime 9 beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a 10 reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). An error under Apprendi 11 is subject to review for harmless error. Washington v. Recuenco, 548 U.S. 212, 222 (2006). The 12 appropriate standard of review is found in Neder v. United States, 527 U.S. 1 (1999) which 13 explained that an error is harmless where the record contains “overwhelming” and 14 “uncontroverted” evidence supporting an element of the crime. See United States v. Zepeda- 15 Martinez, 470 F.3d 909, 913 (9th Cir. 2006). By contrast, an error is not harmless where “the 16 defendant contested the omitted element and raised evidence sufficient to support a contrary 17 finding.” Id. When a state court determines that a constitutional violation is harmless, the 18 harmlessness determination itself must be unreasonable. Mitchell v. Esparza, 540 U.S. 12, 18 19 (2003). 20 2. Sufficiency of the Evidence 21 The Fourteenth Amendment’s Due Process Clause guarantees that a criminal defendant 22 may be convicted only “upon proof beyond a reasonable doubt of every fact necessary to 23 constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The 24 Supreme Court announced the federal standard for determining the sufficiency of the evidence to 25 support a conviction in Jackson v. Virginia, 443 U.S. 307 (1979). “[T]he relevant question is 26 whether, after viewing the evidence in the light most favorable to the prosecution, any rational 27 trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. 28 at 319. 1 The Supreme Court has explicitly noted, however, that “[w]e have not extended Winship’s 2 protections to proof of prior convictions used to support recidivist enhancements.” Dretke v. 3 Haley, 541 U.S. 386, 395 (2004). 4 C. Analysis 5 The state court of appeal’s determination of these claims was not unreasonable. The 6 record indicated that: (1) petitioner had previously been convicted of felony domestic violence 7 (ECF No. 9-5 at 111); (2) the victim of that crime was the mother of petitioner’s child (id.); 8 (3) petitioner was, in connection with the 2009 felony, sentenced to probation on the condition 9 that he participate in a batterer’s treatment program (ECF No. 9-3 at 8); and (4) the minute order 10 of petitioner’s 2009 plea bore a notation indicating that it was a strike (id. at 9). Based on the 11 foregoing, the court of appeal was reasonable in concluding that there was sufficient evidence by 12 which to conclude that petitioner – who had been convicted of domestic violence - personally 13 inflicted injury on a non-accomplice – the mother of his child. This conclusion is further 14 bolstered by the sentencing requirement that petitioner enroll in a batterer treatment program. 15 Assuming the Winship protections apply here, the standard announced in Jackson was clearly 16 met. The evidence supporting the fact that he personally inflicted injury on a non-accomplice 17 was overwhelming. 18 And, in light of the foregoing, the court finds that the state court of appeal was not 19 unreasonable in concluding that failure to submit the issue to a jury was harmless. Notably, 20 plaintiff failed to present any evidence of his own which meaningfully rebuts the convincing 21 evidence relied on by the court of appeal. Instead, he relies primarily on the Supreme Court’s 22 decision in Descamps v. United States, 570 U.S. 254 (2013). He claims that Descamps forbids 23 the review of documents – of the sort conducted by the court of appeal in this case – to “discern 24 what a trial showed, or a plea revealed, about a defendant’s underlying conduct.” ECF No. 1 at 25 28 (quoting Descamps, 570 U.S. at 269). Descamps, however, only “clarified application of the 26 modified categorical approach in light of existing precedent.” Ezell v. United States, 778 F.3d 27 762, 766 (9th Cir. 2015). “Descamps is a statutory interpretation case: It clarifies when certain 28 crimes qualify as violent felonies under the ACCA [Armed Career Criminal Act], a congressional 1 || enactment.” Id. Descamps did not “impose a new obligation nor did it break new ground” nor 2 | did it announce a new rule of constitutional law. Jd. at 766-67. It certainly did not, as respondent 3 || points out, overrule the Supreme Court’s previous decisions in Recuenco or Neder. 4 Thus, both claims fail. 5 CONCLUSION 6 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not 7 || objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS 8 | HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 | shall be served and filed within fourteen days after service of the objections. Failure to file 15 || objections within the specified time may waive the right to appeal the District Court’s order. 16 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 17 || 1991). In his objections petitioner may address whether a certificate of appealability should issue 18 | in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 19 || 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 20 || final order adverse to the applicant). 21 | DATED: October 29, 2019. 22 EDMUND F. BRENNAN 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 25