(HC) Howell v. Black

Opinion

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11 RONNIE E. HOWELL, ) Case No.: 1:20-cv-00731-NONE-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DENY PETITION FOR WRIT OF HABEAS 13 v. ) CORPUS ) 14 JASON BLACK, Executive Director of ) [THIRTY-DAY OBJECTION DEADLINE] Atascadero State Hospital, 15 ) ) 16 Respondent. )

17 Petitioner is currently committed to the Atascadero State Hospital for a maximum of nine 18 years. He filed the instant habeas petition challenging the judgment. As discussed below, the Court 19 finds Petitioner’s claim to be without merit and recommends the petition be DENIED. 21 Petitioner was found not guilty by reason of insanity to one count of carjacking. People v. 22 Howell, No. F075026, 2020 Cal. App. Unpub. LEXIS 159, at *1 (Jan. 9, 2020). Petitioner appealed to 23 the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), contending that the trial court 24 improperly ordered he be committed to Atascadero State Hospital pursuant to Penal Code section 25 1601, subdivision (a). Id. The Fifth DCA affirmed the judgment. Id. at *10. 26 On October 15, 2020, Petitioner filed a second amended petition. (Doc. 19.) On December 18, 27 2020, Respondent filed a motion to dismiss due to Petitioner’s alleged failure to exhaust three of his 28 four claims for federal habeas relief by first presenting them to the state’s highest court. (Doc. 23.) The 1 Court granted the motion to dismiss in part and provided Petitioner with the opportunity to elect to 2 withdraw his unexhausted claims and proceed only on his exhausted claim or seek a stay and abeyance 3 of the action so that he may exhaust his unexhausted claims in state court. (Doc. 32.) On May 6, 2021, 4 Petitioner filed a notice electing to dismiss his unexhausted claims and proceed only on his exhausted 5 claim. (Doc. 34.) On June 8, 2021, Respondent filed an answer. (Doc. 37.) Petitioner filed a traverse 6 on June 30, 2021. (Doc. 39.) 8 The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision1:

10 On May 10, 2016, the victim was in her car at the cell phone waiting area at the Fresno airport waiting for her husband to contact her to tell her to pick him up. Howell jumped 11 into the backseat of her car, said he had a gun, and told her to drive. The victim started 12 to drive, then saw some officers and started driving toward them. Howell screamed, saying, "Don't stop, I'll shoot you and I'll kill you[.]" The victim stopped driving, 13 covered her head, and asked Howell not to shoot her. At about that time, officers pulled Howell from the back seat of the car. Howell repeatedly threatened to shoot the victim, 14 but she never saw a weapon. 15 STATEMENT OF THE CASE 16 A complaint filed May 13, 2016, charged Howell with carjacking (§ 215, subd. (a)), 17 kidnapping (§ 207, subd. (a)), and criminal threats (§ 422). It was further alleged he had 18 suffered two prior strike convictions (§§ 667, 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and four prior prison terms (§ 667.5, subd. (b).) Before 19 Judge Don Penner, Howell entered a plea of not guilty and denied all enhancements and priors. 20 On September 1, 2016, before Judge Brian Alvarez, Howell changed his not guilty plea 21 to not guilty by reason of insanity (NGI). Judge Alvarez, pursuant to sections 1026 and 22 1026.2, appointed Dr. Paula J. Willis and Dr. Luis H. Velosa to examine Howell and investigate his mental status. Both Velosa and Willis presented reports concluding that, 23 at the time of the charged offenses, Howell was unable to distinguish right from wrong and was thus legally insane. 24

25 On September 14, 2016, Judge Kim Gaab ordered Dr. Stephen Pointkowski to evaluate Howell to determine if he was mentally competent to stand trial, pursuant to section 26 27

28 1 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1). 1 1368. Following many continuances, Howell was found competent to stand trial on October 28, 2016, and trial was set for December 8, 2016. 2 On the first day of trial, December 8, 2016, the parties reached the following agreement 3 before Judge Denise Whitehead: In exchange for Howell pleading no contest and NGI 4 to carjacking and submitting on the issue of his sanity on the doctors' reports, the prosecution would dismiss all other counts and all enhancements. Judge Whitehead 5 explained that in so doing, she would find Howell not guilty of carjacking by reason of insanity. Judge Whitehead then advised Howell as follows: 6

7 "What happens then is I refer [the doctors' reports] to what's called CONREP for a recommendation on placement, but because this is a strike, you would have to do a 8 minimum of 180 days at the state hospital before you could be considered for placement outside of the state hospital." 9 10 Judge Whitehead went on to explain that, irrespective of the 180-day minimum, Howell would likely remain in the state hospital for at least a year. Defense counsel added that 11 the "hospital usually wants one year before they recommend getting out." Howell was asked if he understood, and he stated he did. 12 The parties then stipulated to the preliminary hearing transcript as the factual basis of 13 the plea. Before accepting Howell's plea, Judge Whitehead asked Howell if he had read, 14 understood, and initialed the plea form, which, under "[o]ther possible consequences," included the phrase "min 180 hospital." Howell stated he had and had no questions. 15 Howell then pleaded no contest to the charge of kidnapping. Judge Whitehead found 16 him guilty of carjacking, as charged, and granted the prosecution's motion to dismiss the 17 remaining charges and enhancements. Based on the doctors' reports admitted into evidence by stipulation, the trial court then found Howell legally insane at the time of 18 the carjacking, and thus found him NGI.

19 As provided under section 1026, Judge Whitehead then referred the matter to the 20 Department of State Hospital's (DSH) CONREP for a diagnostic evaluation and placement recommendation. CONREP's Community Program Director subsequently 21 filed a report, "[p]ursuant to ... the provisions of ...[s]ection 1026(b)" and, as ordered by the trial court, "reviewed and considered the complete available information regarding 22 the circumstances of the criminal offense," which it described as follows:

23 "On or about 05/10/2016 Mr. Howell violated Penal Code Section 215(a) Carjacking, 24 Penal Code 207(a), Kidnapping, and Penal Code Section 422, Criminal Threats, when he jumped into a strangers vehicle and ordered the owner to "Drive I got a gun." 25 Noting Howell had been found NGI, the report then quoted subdivision (a) of section 26 1601, as follows: 27 "'In the case of any person charged with and found ... not guilty by reason of insanity of 28 ... carjacking with a deadly or dangerous weapon ... or an act which poses a serious 1 bodily harm to another person, outpatient status under this title shall not be available until that person has actually been confined in a state hospital or other facility for 180 2 days or more after having been committed under the provision of law specified in Section 1600.'" 3

4 The report concluded with CONREP's recommendation that Howell be committed to Atascadero State Hospital "'in accordance with the policies established by the 5 Department of Mental Health' (PC 1026(g))."

6 At sentencing on January 17, 2017, Judge Jonathan Conklin orally committed Howell 7 to Atascadero State Hospital for a maximum of nine years, after noting that he had reviewed CONREP's placement recommendation report and found the recommendation 8 appropriate. In compliance with section 1026, a written order of commitment and other related documents were mailed to Atascadero State Hospital on February 3, 2017. 9 10 People v. Howell, 2020 Cal. App. Unpub. LEXIS 159, at *1-6. 12 A. Jurisdiction 13 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 14 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 15 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 16 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 17 Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is 18 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 19 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 20 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. 21 Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after 22 statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore 23 governed by its provisions. 24 B. Legal Standard of Review 25 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 26 petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was 27 contrary to, or involved an unreasonable application of, clearly established Federal law, as determined 28 by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an 1 unreasonable determination of the facts in light of the evidence presented in the State court 2 proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 3 U.S. at 412-413. 4 A state court decision is “contrary to” clearly established federal law “if it applies a rule that 5 contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts 6 that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” 7 Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406). 8 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an 9 “unreasonable application” of federal law is an objective test that turns on “whether it is possible that 10 fairminded jurists could disagree” that the state court decision meets the standards set forth in the 11 AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal 12 law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 563 U.S. 170, 203 13 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that 14 the state court’s ruling on the claim being presented in federal court was so lacking in justification that 15 there was an error well understood and comprehended in existing law beyond any possibility of 16 fairminded disagreement.” Harrington, 562 U.S. at 103. 17 The second prong pertains to state court decisions based on factual findings. Davis v. 18 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 19 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 20 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the facts 21 in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 22 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s factual finding is 23 unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” 24 Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, 25 Maddox v. Taylor, 543 U.S. 1038 (2004). 26 To determine whether habeas relief is available under § 2254(d), the federal court looks to the 27 last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 28 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we 1 independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. 2 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 3 The prejudicial impact of any constitutional error is assessed by asking whether the error had 4 “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 5 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding 6 that the Brecht standard applies whether or not the state court recognized the error and reviewed it for 7 harmlessness). 8 C. Review of Petition 9 In his only claim that has been exhausted in state court, Petitioner alleges that his commitment 10 to the state hospital was unauthorized under state law. Petitioner raised this claim on direct review in 11 the state courts. In the last reasoned decision, the appellate court denied the claim as follows: 12 Howell's argument on appeal is that his commitment to the state hospital pursuant to section 1601(a) was unauthorized, as he was found NGI of carjacking on a factual basis 13 that did not establish that he used a weapon or injured the victim. Respondent contends Howell's argument is without merit as he has failed to establish he was committed under 14 section 1601(a), but was instead properly committed under section 1026. 15 In order to understand Howell's argument, we must first address various parts of sections 16 1026 and 1601.

17 Section 1026 et seq. sets forth numerous procedural and substantive safeguards before 18 a criminal defendant may be committed to a state hospital or treatment facility pursuant to a plea of not guilty by reason of insanity. Section 1026, subdivision (b) provides, in 19 relevant part, that once a defendant is found not guilty by reason of insanity, unless it appears to the court that the sanity of the defendant has been recovered fully, the court 20 must "order the community program director or a designee to evaluate the defendant 21 and to submit to the court ... a written recommendation as to whether the defendant should be placed on outpatient status or committed to the State Department of State 22 Hospitals or other treatment facility." (§ 1026, subd. (b).) Taking into consideration that placement recommendation, the court "shall direct that the defendant be committed to 23 the State Department of State Hospitals for the care and treatment of persons with mental health disorders or any other appropriate public or private treatment facility approved 24 by the community program director, or the court may order the defendant placed on 25 outpatient status pursuant to Title 15 (commencing with Section 1600) of Part 2." (§ 1026, subd. (a).) 26 Thus, as noted above, section 1600 allows the trial court to place the defendant on 27 outpatient status "subject to the procedures and provisions of this title." But section 28 1601(a), at issue here, provides, in relevant part, that outpatient status is not available to a person charged with and found NGI of carjacking with a deadly or dangerous weapon 1 or in which the victim suffers great bodily injury "until that person has been actually confined in a state hospital or other treatment facility for 180 days or more after having 2 been committed under the provisions of law specified in Section 1600, unless the court finds a suitable placement, including, but not limited to, an outpatient placement 3 program, that would provide the person with more appropriate mental health treatment 4 and the court finds that the placement would not pose a danger to the health or safety of others, including, but not limited to, the safety of the victim and the victim's family." In 5 addition to the presumptive 180-day minimum confinement period, when an insanity acquittee's placement is subject to 1601(a), he or she is specifically subject to additional 6 requirements for conditional release enumerated in section 1603. (§ 1603.) 7 Howell contends he should not have been committed under section 1601(a) because he 8 was found NGI on a factual basis that did not establish he used a deadly weapon or injured the victim. Respondent contends Howell has failed to establish the factual 9 premise that he was committed under section 1601(a), and contends instead that he was 10 committed under section 1026. We agree with respondent.

11 It is true that, at the time Howell changed his plea, Judge Whitehead advised him that he faced a minimum of 180 days in a state hospital (and more likely at least a year) 12 because he committed a strike. In response to a referral from the court, the CONREP submitted a report recommending Howell be committed to Atascadero State Hospital. 13 And, in its referral, CONREP quoted a portion of section 1601(a), which said that, in 14 the case of a person found NGI of carjacking with a deadly or dangerous weapon, or an act which posed serious bodily harm to another, outpatient status was not available until 15 the person had been confined for 180 days or more.

16 However, at the placement hearing, Judge Conklin presided in Judge Whitehead's stead, 17 as she was unavailable. Defense counsel asked that placement be done that day. Judge Conklin then made an oral placement order, committing Howell to Atascadero State 18 Hospital in accordance with policies established by the Department of Mental Health under section 1026, subdivision (g) . In doing so, Judge Conklin stated he had reviewed 19 the placement recommendation. No mention was made of section 1601(a), nor did the 20 order require a minimum confinement of 180 days. When asked by the trial court if there were any "requests for finding" beyond that order, Howell's counsel replied, "No, Your 21 Honor."

22 Likewise, the court's written order stated that Howell was to be committed to the Department of State Hospitals pursuant to section 1026. The order did not refer to 23 section 1601(a) and did not require a minimum confinement of 180 days. 24 We agree that Howell has not established the factual premise that he was committed to 25 the state hospital under section 1601(a). (People v. Nitschmann (1995) 35 Cal.App.4th 677, 683-684, 41 Cal. Rptr. 2d 325 [defendant has the burden of showing error].) Section 26 1026, subdivision (a) provides, in relevant part, that if the defendant is found NGI, the 27 court "shall direct that the defendant be committed to the State Department of State Hospitals ... or any other appropriate public or private treatment facility ... or the court 28 may order the defendant placed on outpatient status." This provision gave the court the 1 authority to commit Howell to the state hospital and it is clear the court invoked this provision when it did so here. 2 Because we conclude Howell was properly committed, we forego any discussion by the 3 parties of forfeiture, whether the use of a deadly weapon or injury to a victim was 4 proven, whether Howell received ineffective assistance of counsel, or the need to further clarify the record. 5 6 People v. Howell, 2020 Cal. App. Unpub. LEXIS 159, at *6-10. 7 Respondent correctly asserts that Petitioner fails to present a federal claim because Petitioner is 8 challenging the application and interpretation of state law. It is well-settled that federal habeas relief is 9 not available to state prisoners challenging state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We 10 have stated many times that federal habeas corpus relief does not lie for errors of state law”); Langford 11 v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“alleged errors in the application of state law are not 12 cognizable in federal habeas corpus” proceedings). The Fifth DCA determined that Petitioner had not 13 established that he was committed to the state hospital under section 1601(a) and concluded that 14 Petitioner was properly committed under section 1026. People v. Howell, 2020 Cal. App. Unpub. 15 LEXIS 159, at *10. Petitioner claims that his commitment to the state hospital was unauthorized under 16 state law. (Doc. 19 at 4.) Such challenge does not give rise to a federal question cognizable on federal 17 habeas review. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state 18 court’s interpretation of state law . . . binds a federal court sitting in habeas corpus”). Thus, the claim 19 is not cognizable on federal habeas and should be rejected. 20 Even if the Court found the claim cognizable, it would be without merit. As discussed by the 21 Fifth DCA, at the placement hearing, the court committed Petitioner to Atascadero State Hospital in 22 accordance with policies established by the Department of Mental Health under section 1026, 23 subdivision (g), and no mention was made of section 1601(a). People v. Howell, 2020 Cal. App. 24 Unpub. LEXIS 159, at *9. Additionally, the court’s written order stated that Petitioner was to be 25 committed to the Department of State Hospitals pursuant to section 1026, the order did not refer to 26 section 1601(a). Id. at *9-10. The Fifth DCA found that Petitioner had not established the factual 27 premise that he was committed to the state hospital under section 1601(a), and Section 1026, 28 subdivision (a) gave the court the authority to commit Petitioner to the state hospital. Id. at *10. 1 Accordingly, the claim fails to present a cognizable federal claim. Moreover, Petitioner fails to 2 establish that the state court’s determination was contrary to or an unreasonable application of 3 Supreme Court authority. The claim should be denied. 5 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 6 DENIED with prejudice on the merits. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 9 Local Rules of Practice for the United States District Court, Eastern District of California. Within 10 thirty days after being served with a copy of this Findings and Recommendation, Petitioner may file 11 written objections with the Court. Such a document should be captioned “Objections to Magistrate 12 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 13 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 14 specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 15 F.2d 1153 (9th Cir. 1991). 16

18 Dated: July 23, 2021 _ /s/ Jennifer L. Thurston 19 CHIEF UNITED STATES MAGISTRATE JUDGE

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