!POLICE INFORMANT IN YOUR COMMUNITY!
By voting yes on prop 57 you are allowing more dope fiend [non-violent] snitches who are willing to do anything to stay out for their dope sack, working as “confidential informants” for the police and doing hits like this which are VIOLENT…
TO NOTE: These are the younger generation victimizing the elder generation. And at the end of this article will be posted a link to the court documents. I cannot see how anyone who is not a snitch for law enforcement with 1. drug manufacturing, 2. importation, 3. sales of methamphetamine, 4. possession of a smoking device, 5. loaded firearm, 6. unlawful firearm activity, 7. co-defendant to murder, can get charges like this dismissed. I guess luring people to be murdered qualifies you for leniency. Then again he and his wife Sandra continue to get high with a kid in the room and drive around the community trying to lure people out to fields to get murdered. Blood money for the government.
NO ON PROP 57!
BEWARE: You are who you hang with; Birds of the same feather flock together.
This article was published on 04.29.04.
The plotline in one of Butte County’s most brutal murders in recent memory took a dramatic twist Monday, as allegations surfaced that Kelly David Fredericksen, 27, who is accused of killing and immolating Ronald Bailey, may have done so because he believed Bailey had molested a 14-year-old girl who was the daughter of a close friend.
District Attorney Mike Ramsey confirmed that his office was working to evaluate claims that Bailey had molested a girl whose sister made that claim to Fredericksen on the afternoon of Bailey’s murder. Dennis Forland, Fredericksen’s attorney, said on Tuesday that he intends to prove that the revelation of Bailey’s conduct may have caused his client to enter a mental state in which he could not be held fully accountable for his actions. Forland has entered a not-guilty plea on his client’s behalf and said he is angling for a mental-health defense involving “methamphetamine-induced psychosis.”
Fredericksen is accused of luring Bailey to a semi-remote area near the Oro-Bangor Highway on the pretext of making a drug deal and then stabbing him more than two dozen times in the head, neck, torso and arms. Fredericksen then allegedly doused Bailey in gasoline while he lay bleeding on the roadway and set him ablaze. Bailey’s charred and blackened body, discovered March 22 by a morning commuter, was rendered so unrecognizable that authorities at first thought the victim to be a child or young man, when in fact Bailey was in his 50s.
Fredericksen appeared in court Monday in a standard-issue jail jumpsuit, his head freshly shaven, facing forward and remaining silent throughout his brief appearance. As he took his seat, Bailey’s relatives in the back of the courtroom muttered curses under their breath.
Bailey’s brother, Ray Calonge, along with his wife, Jenny Calonge, made impromptu statements outside the courtroom, saying they had seen the evidence against Fredericksen, which Ramsey confirmed included Bailey’s bloody clothes found in Fredericksen’s apartment. The Calonges said the killing had shaken their whole family.
“My children are afraid to go to sleep at night,” Jenny Calonge said. “We want justice for Ronnie. He may not have been a saint, but we all have fallen short of the glory of God. He did not deserve this.”
Pulling from his backpack a tiny ceramic vase with an image of two praying hands on the side, Ray Calonge, his eyes tearing behind sunglasses, said he had carried his brother’s ashes in the vase to court with him.
“This is all I have left of my brother,” he said. “Because of what he [the killer] did, this is all there is left.”
The Calonges said they couldn’t discuss publicly the accusations against Bailey.
Investigators initially had described the motive for the killing as a dope deal gone sour but quickly distanced themselves from that theory when the molestation allegations began to surface. A source close to Bailey’s family who would talk only on condition of anonymity confirmed that Bailey had been accused of at least three and possibly more instances of child molestation going back several years. The source also said Bailey was being hunted by another party in connection with a prior alleged molestation.
Forland said county Child Protective Services had also known about Bailey and had stepped in to protect a young girl who may have been living with him. If the case goes before a jury, as Forland expects it will, he may call one or more of Bailey’s alleged victims to the stand.
Bailey is known to have been a long-time methamphetamine user and may also have been involved in manufacturing the drug. Because the allegations of child molestation all came from kids whose parents were also heavy meth users, authorities were never contacted in the cases the source was aware of.
Butte County Sheriff’s Detective Andy Duch said it was common for hardcore meth users to “handle their business” vigilante-style.
“They don’t want to talk to us,” he said. “We ask too many questions.”
Duch also revealed that the investigation has turned up an eyewitness to the killing as well as other evidence that he said makes for an almost “airtight” case. Authorities are still searching for the murder weapon, a large hunting knife that they believe was dropped from the Upper Thermalito Bridge.
This article was published on 05.20.04.
The Oroville man accused of stabbing to death an acquaintance he thought to be a child molester gave police a full confession within days of the crime’s discovery, an investigator with the Butte County District Attorney’s Office revealed in court Friday.Responding to questions from the prosecution, investigator Kory Honea said Kelly David Fredericksen gave him a detailed account of how he lured Ronald “Ronnie” Bailey to a remote spot, then stabbed him as many as two dozen times with a 9-inch hunting knife, returning later to the scene of the crime with a can of gasoline in an attempt to cremate the victim’s remains.
Fredericksen’s lawyer, Chico attorney Dennis Forland, had hoped to keep the confession out of the proceedings until his client’s actual trial in order to avoid prejudicing a jury, but Judge Robert Glusman chose to allow the testimony at Fredericksen’s preliminary hearing. Forland said his client has a history of mental illness and may not have been in full control of his faculties the night Bailey was killed.
According to Honea, Fredericksen met Bailey for the first time at his Oroville apartment on the day of the murder, when Bailey and a friend came over to buy some methamphetamine. The group smoked a small amount of meth before Fredericksen left them to answer a telephone call. Before he returned to his bedroom, he checked on his 4-year-old daughter, who was sleeping in another room. There, he told investigators, he found Bailey standing in the room watching her sleep. Bailey reportedly said something to the effect of “you have a beautiful daughter” before Fredericksen ushered him back to his bedroom, where the other men were.
It was at that point that a 15-year-old friend of the family, whose room Fredericksen’s daughter had been sleeping in, took Fredericksen aside and told him she recognized Ronald Bailey.
“She was upset and crying,” Honea said, relaying Fredericksen’s confession. “She recognized Ronald Bailey from the past and indicated that she knew he had raped or molested her sister.”
Fredericksen then asked the men to leave. In subsequent hours, he allegedly told police, Fredericksen ruminated upon several different options for dealing with Bailey, including beating him up, breaking his legs and cuting off his penis. He did not call police, he told Honea, because he didn’t think it would do any good.
On the pretext of making a large speed deal, Fredericksen had his friend arrange a meeting with Bailey at an Oroville convenience store. Once there, Fredericksen and his friend met Bailey and a Colusa man named Ed Gomez, who later told police he witnessed Bailey’s death.
After stabbing Bailey almost 30 times and taking his wallet, Fredericksen told police, he took Bailey’s money and then threw the empty wallet, along with the murder weapon, off the Table Mountain Bridge. Neither item has yet been found. Fredericksen apparently returned to the scene of the crime twice—once on the night of the murder, when he moved the body off the road, then again the next night to set the remains on fire. Bailey was found the morning of March 22 by local residents. He was charred to blackness and had begun to attract neighborhood dogs.
Watching the court proceedings intently was one of Bailey’s alleged victims, who later told reporters that the accused was a “sweetheart” who gave Bailey “what he deserved.” Danielle Comer, 21, said she was raped at least five times by Bailey when she was a teenager living with her step-grandmother, with whom Bailey was romantically involved. Comer said she told her step-grandmother what had happened, but, “She didn’t believe me. Ron had her so strung out. …”
Comer said her sister had told Fredericksen at some point that she had little faith that Bailey would be brought to justice, since she knew Comer had been either raped or molested on at least two other occasions. Both times, Comer said, the offenders were caught but given only “a slap on the wrist.”
With Bailey gone, Comer said she “feels safer walking down the street.” Still, she was surprised to hear what Fredericksen had done, noting that she had never seen him become violent in the past.
“He’s a teddy bear,” she said. “He treated everyone with respect.”
A relative of Bailey’s who was also present in court had a different view of Fredericksen.
“I hope they fry that motherfucker’s ass,” he said as he angrily exited the courthouse.
And here is the appeal from the murderer:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Petitioner, No. CIV S-08-1869 GGH P
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for first degree murder. This action is proceeding on the original petition filed August 12, 2008, raising the following claims: 1) the trial court improperly precluded defense expert Dr. Pittel from testifying regarding petitioner’s mental state at the time of the offense; 2) the trial court improperly precluded Dr. Pittel from testifying that petitioner’s co-defendant1 corroborated petitioner’s statement that he had used methamphetamine; 3) the prosecutor committed misconduct by misstating the law of manslaughter; 4) the trial court improperly denied his motion for a new trial which presented new evidence regarding petitioner’s mental state; 5) the lying in wait special circumstance is vague, overbroad and arbitrarily applied; 6) trial counsel was ineffective for failing to call witness Lapuste.
1 While petitioner refers to this person, Emmanuel Lapuste, as a “co-defendant,” Lapuste
was not on trial with petitioner and nor is there any indication in the record that he was ever
convicted of a crime related to this incident.
Pending before the court is petitioner’s May 18, 2009, motion to stay this action pending further exhaustion. On June 18, 2009, a hearing was held regarding this motion. Wanda Hill Rouzan appeared on behalf of respondent. Eric Milthuaup appeared on behalf of petitioner. For the following reasons, the court recommends that the motion be denied.
In the pending motion, petitioner seeks a stay so that he may exhaust claim 6 (ineffective assistance of counsel). Petitioner also states that he will exhaust claim 5 (challenge to lying in wait special circumstance) because respondent contends that it has not been raised in state court, although he believes this claim is exhausted.
The court first considers whether claim 5 is exhausted. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
In his state appellate opening brief, petitioner argued the lying in wait special circumstance was unconstitutionally overbroad in violation of state law. Respondent’s Lodged Document 1, pp. 53-55. In his petition for review, petitioner argued that the lying in wait special circumstance was unconstitutionally overbroad in violation of the United States Constitution. Respondent’s Lodged Document 3, p. 12.
California Rule of Court 8.500 provides that on petition for review, the California Supreme Court will not consider an issue that the petitioner failed to timely raise in the Court of Appeal. Cal. Rule of Court 8.500(c). Because petitioner did not raise his federal constitutional claim in his state appellate brief, the California Supreme Court did not consider this claim raised in the petition for review. Claims are not fairly presented if they are raised in a procedural context in which the merits will not be considered absent special circumstances. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056 (1989). Accordingly, the court finds that claim 5 is not exhausted because it was not presented in the proper procedural context.
In the reply brief and at oral argument, petitioner’s counsel argues that Cal. Rule of Court 8.508 permits abbreviated petitions for review. Petitioner contends that his brief statement of his claim in his petition for review exhausted claim 5. Had petitioner raised his federal claim in his state appellate brief, the court might find his claim exhausted, despite his abbreviated briefing of the claim. However, because this claim was not raised in the state appellate brief, the court need not reach the issue of whether the claim was adequately pled in the petition for review.
Accordingly, the court now turns to petitioner’s request to stay. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), the Supreme Court held that federal district courts have the authority to stay mixed petitions pending further exhaustion in limited circumstances. Rhines, 544 U.S. at 277, 125 S.Ct. 1528. “[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court” and where petitioner’s unexhausted claims are not “plainly meritless.” Id. Even if petitioner demonstrates the requisite good cause and presents potentially meritorious claims, a stay still will not be appropriate if there is any indication that petitioner engaged in intentionally dilatory litigation tactics. Id. at 278.
In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit recently held that in addition to the stay procedure authorized in Rhines, district courts also have discretion to permit petitioners to follow the three-step stay-and-abeyance procedure approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) and Kelly v. Small, 315 F.3d 1063 (9th 2 Until King v. Ryan was decided, this court had been under the impression that Rhines foreclosed implementation of the Kelly stay-and-abeyance procedures. The procedural twists and turns of habeas corpus proceedings have surpassed complex. Cir. 2003). Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition. Kelly, 315 F.3d at 1070-71. The Kelly stay-and-abeyance procedure has no requirement of a good cause showing or that the claims are potentially meritorious.
At the June 18, 2009, hearing, the court discussed with petitioner’s counsel whether he opted for a Rhines stay or a Kelly stay. The court advised counsel that were he to proceed with a Kelly stay, he risked having his claims found barred by the statute of limitations following exhaustion. In particular, the court discussed the potential that the unexhausted claims would not relate back to any of the exhausted claims. Counsel informed the court that he wished to proceed with a Rhines stay. Accordingly, the court considers petitioner’s motion to stay pursuant to the standards in Rhines.
Rhines does not go into detail as to what constitutes good cause for failure to exhaust, and the Ninth Circuit has provided no clear guidance beyond holding that the test is less stringent than an “extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Several district courts have concluded that the standard is more generous than the showing needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F.Supp.2d 844, 849 (D.S.D. 2005) (applying the Supreme Court’s mandate on remand). This
view finds support in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807 (2005) where the Supreme Court acknowledged that a petitioner’s “reasonable confusion” about the timeliness of his federal petition would generally constitute good cause for his failure to exhaust state remedies before filing his federal petition. 544 U.S. at 416-17, 125 S.Ct. 1807.
Even under this more lenient standard, the court finds that petitioner has not shown good cause for his failure to exhaust claims five and six. As to claim five (challenge to lying in wait special circumstance) it appears that petitioner inadvertently failed to raise this claim in his state appellate briefing, thus dooming any consideration of it in his petition for review. This does not constitute good cause for failing to previously exhaust this claim.
2 Until King v. Ryan was decided, this court had been under the impression that Rhines foreclosed implementation of the Kelly stay-and-abeyance procedures. The procedural twists and turns of habeas corpus proceedings have surpassed complex.
Turning to claim six, petitioner alleges that his counsel was ineffective for failing to call Emmanuel Lapuste as a defense witness in support of his manslaughter defense. Lapuste apparently would have corroborated information that petitioner gave to his testifying doctor expert that he had consumed a large amount of methamphetamine in the days prior to the murder. See Respondent’s Lodged Document 1, Petitioner’s Appellate Brief, pp. 37-38. Without this corroborating information, the expert doctor testified that he could not offer an opinion as to the effects of the recently ingested methamphetamine on petitioner at the time of the killing, although he did testify about the effects of long term methamphetamine abuse.
On direct examination, Dr. Pittal testified that he learned that petitioner had a long history of methamphetamine abuse. RT at 482. This he independently verified after talking to a woman who had been in drug rehabilitation with petitioner and his wife. RT at 482. He testified that the only evidence he had of petitioner’s methamphetamine use in the days leading up to the crime was what petitioner told him. RT at 482. He had not been able to corroborate this information. RT at 482. Dr. Pittal went on to testify about the effects of long term methamphetamine abuse. RT at 484-489.
On cross-examination, Dr. Pittal was asked if everything he testified to was accurate:
Q: And you believe that everything you testified to today is accurate, and you haven’t been misled in any of those things; is that correct?
A: I don’t believe–except for information having to do with Mr. Fredericksen’s use of methamphetamine in the days prior to this, and the depression that he experienced after breaking up with a girlfriend, none of which I have been able to corroborate, and therefore I can’t testify about it. I believe I have been able to corroborate all of the other essential details to which I have testified.
RT at 502.
At the time of trial, petitioner’s investigator had transcribed an interview with Lapuste which apparently contained the same information petitioner now claims Lapuste would have testified to. Id., p. 38.
In the pending motion, petitioner argues that he could not have raised his ineffective assistance of counsel claim earlier because Lapuste could not be located, despite diligent efforts. Petitioner states that he is informed that Lapuste has returned to the Butte County area and is willing to provide a statement or declaration regarding his knowledge of the circumstances of the offense and his availability to testify at trial.
In opposition, respondent argues that because the transcript of the Lapuste interview by the defense investigator should have been available to petitioner, he had some documentary basis for going forward with his claim in the state proceeding. The court agrees. Because petitioner’s present ineffective assistance of counsel claim is apparently based on the information in this transcript, he could have raised this claim earlier in state court. The court does not agree with petitioner that he was entitled to wait until Lapuste could be found before exhausting this claim. The problem with this argument is that it could have taken years for Lapuste to resurface, at which time the evidence would have been stale and any other necessary witnesses possibly unavailable. Because petitioner had access to the transcript containing the necessary information, and the ability to seek further investigation in the state court, the court finds that he has not shown good cause for failing to raise this claim at an earlier time.
The court has also considered whether petitioner’s ineffective assistance of counsel claim is “plainly meritless.” In order to put this discussion in context, the court sets forth the background of petitioner’s offense, as described in the opinion of the California Court of Appeal. After independently reviewing the record, the court finds this summary to be accurate and adopts it below:
The victim, Ron Bailey, and a friend, Ed Gomez, went to defendant’s apartment to buy some drugs from another individual, Emanuel Lapuste. Shasta Flotka, who was living with defendant at the time, recognized Bailey and later told defendant that Bailey had drugged and raped her sister.
Later, Lapuste called Gomez and asked Gomez to give him and defendant a ride. Gomez and Bailey then picked up Lapuste and defendant, and Gomez followed Lapuste’s instructions and drove to a wooded area outside Oroville. They pulled off the road onto a dirt driveway, then got out of the car and began walking up the driveway at Lapuste’s direction. Eventually, defendant told them they had gone far enough, and they stopped to spoke. As Gomez was lighting Bailey’s cigarette, defendant suddenly attacked Bailey with a knife.
Defendant stabbed Bailey at least 27 times, and Bailey died from blood loss from multiple penetrating stab wounds to his chest and head.
Defendant testified at trial that he was “overwhelmed with anger” because of what Shasta told him and because he believed Bailey had “touched” his daughter when Bailey was in his apartment. Defendant claimed he planned only to “assault [Bailey] with a deadly weapon, cut off his penis or stab him in the penis,” but did not think about killing him. Once he punched Bailey, however, he “just snapped”and began to stab Bailey. Later, defendant and Lapuste went back and moved Bailey’s body into the brush, and later still defendant returned, dragged the body back into the road, and “attempted to cremate it with gasoline and matches.”
Defendant argued the jury should convict him of voluntary manslaughter, but the jury rejected that argument and convicted him of first degree murder with the special circumstance of lying in wait.
Respondent’s Lodged Document .
The factual back ground to petitioner’s ineffective assistance of counsel claim is contained in the California Court of Appeal’s discussion of petitioner’s claim that the trial court erred in refusing to permit Dr. Pittel to refer to Lapuste’s corroborating statement:
During cross-examination, Dr. Pittel testified that he had been able to corroborate “all of the … essential details to which [he] testified” “except for information having to do with [defendant]’s use of methamphetamine in the days prior to [the incident], and the depression that he experienced after breaking up with a girlfriend.” When the prosecutor asked specifically about his inability to corroborate defendant’s methamphetamine use, Dr. Pittel responded: “Other than his statement to that effect, I have no evidence. I have not read the transcript of an interview that [defense counsel] and his investigator had with Mr. Lapuste, who I believe corroborate….” The prosecutor interrupted, asking for a bench conference. At that conference, the court stated, “Can’t have any references to Mr. Lapuste here.” The prosecutor complained he had not been provided with any witness statement of Lapuste, and when asked if there were any, defense counsel responded, “We usually had to provide statements when we call somebody as a witness.” Noting that Lapuste was “not a witness,” the court ruled “[any] information he supplied should not be considered.” Defense counsel suggested Dr. Pittel should be able to refer to Lapuste in responding to the prosecutor’s question about corroboration, but upon the prosecutor’s continued assertion that he had not been provided with any statement from Lapuste, the court ruled, “I think we should stay clear of any information regarding Lapuste.” Defense counsel responded, “All right.”
Later, the subject of corroboration arose again when, in responding to a question about whether “a criminal defendant in a case has a motive, a self [-]interest in whatever he says to you,” Dr. Pittel responded, “Sure. That’s why corroboration is so important.” The prosecutor then asked if Dr. Pittel, in his report, had “corroborated what [defendant told him] about what happened to Ron Bailey.” Dr. Pittel initially expressed uncertainty about “what aspects of it [the prosecutor was]referring to,” but then responded, “[Defendant] acknowledged that he stabbed Mr. Bailey. He described the circumstances. I gather from the bench conference that was held that I can’t speak to certain information that I have, but….” The prosecutor interrupted, telling Dr. Pittel he could not “refer to anything Mr. Lapuste has said.” Dr. Pittel responded, “I won’t refer to it specifically, other than to say that my understanding is that his account was in accord with the information that I received from [defendant].” The prosecutor asked, “Mr. Lapuste’s account of what happened to Mr. Bailey?” and defense counsel interjected, “Hold on, judge. We either can or can’t.” The court then admonished the jury “to disregard any information that came from the mouth of Mr. Lapuste.”
On appeal, defendant contends the trial court “erred in refusing to permit Dr. Pittel to refer to the statement of Emanuel Lapuste that corroborated the statement he had received from [defendant].” Defendant further contends this error deprived him of his federal constitutional rights to due process, a fair trial, and to present evidence. Defendant is wrong on both counts.
Defendant’s assertion of error is based on the premise that an expert witness is allowed to testify about the matter on which his opinion is based, even if that matter would otherwise be inadmissible. (See Evid.Code, §§ 801, 802.) While that principle is generally true, it does not apply to any statement by Lapuste because Dr. Pittel did not base his opinion on any such statement. Indeed, Dr. Pittel specifically admitted that he “ha[d] not read the transcript of [the] interview that[defense counsel] and his investigator had with Mr. Lapuste….” Dr. Pittel’s opinion could not have been premised on a statement he never read. Thus, defendant has failed to show any error in the trial court’s ruling regarding Lapuste. It follows that, having failed to show any error, defendant has necessarily failed to show any error of federal constitutional magnitude.
Respondent’s Lodged Document 2, pp. 10-13.
In the instant claim, petitioner alleges that trial counsel should have called Lapuste to corroborate what petitioner told Dr. Pittal regarding the amount of methamphetamine he ingested in the days leading up to the killing. Petitioner contends that with this corroborating testimony, Dr. Pittal could have offered an opinion regarding the effects of the recently ingested methamphetamine on petitioner.
At trial, petitioner’s counsel argued that the jury should find him guilty of voluntary manslaughter. The problem with the instant ineffective assistance of counsel claim is that voluntary intoxication does not negate implied malice and reduce murder to voluntary manslaughter. People v. Saille, 54 Cal.3d 1103, 1112-1114, 2 Cal.Rptr.2d 364 (1991). For this
reason, the court does not find that trial counsel was ineffective for failing to call a witness to bolster his defense that he was guilty of voluntary manslaughter based on voluntary intoxication as this was not a valid legal defense.
Although not argued by petitioner, the court notes that when a person becomes unconscious through voluntary intoxication and commits a homicide, the killing is attributed to his own negligence in self-intoxicating and he is guilty of the lesser included offense to murder of involuntary manslaughter. People v. Albilez, 41 Cal.4th 472, 516 (2007). Unconsciousness for this purpose does not mean that the person is still and unresponsive. People v. Ochoa, 19Cal.4th 353, 423-424, 79 Cal.Rptr. 408 (1998). Rather, a person is deemed unconscious if he committed the act without being conscious thereof. Id. One court has described that level of unconsciousness as being that of an automaton. People v. Webber, 28 Cal.App.3d 1146, 1163,279 Cal.Rptr. 437 (1991).
It is clear from the record that petitioner was not intoxicated to the point that he was unconscious. At trial, petitioner testified that he and Lapuste planned to take the victim into the hills and beat him up. RT at 375. Petitioner testified that he began attacking the victim as they were lighting cigarettes. RT at 381. After the incident, petitioner and Lapuste dropped Ron Gomez off somewhere then returned to Bailey’s body. RT at 386. They moved the body to the side of the road. RT at 386. About 24 hours later, petitioner returned to Bailey’s body and poured gasoline on it and lit it on fire. RT at 388.
Evidence of voluntary intoxication may be offered as evidence that a defendant did not act with deliberation, premeditation or express malice aforethought. Cal. Penal Code § 22;People v. Boyer, 38 Cal.4th 412, 469 n. 40 (2006). Petitioner does not seek to exhaust such aclaim.10In an interview with a detective, petitioner stated that he took Bailey’s wallet immediately after the killing. RT at 398.
In what appears to have been an attempt to seem less culpable, on cross-examination, he testified that he took the wallet when he returned to drag the body to the side of the road. RT at 389.
This record reflects that petitioner was not unconscious as a result of voluntary intoxication at the time of the killing. Accordingly, the court does not find that Lapuste’s testimony regarding petitioner’s methamphetamine use in the days prior to the murder would have demonstrated that petitioner was guilty of involuntary manslaughter.
3 Evidence of voluntary intoxication may be offered as evidence that a defendant did not act with deliberation, premeditation or express malice aforethought. Cal. Penal Code § 22; People v. Boyer, 38 Cal.4th 412, 469 n. 40 (2006). Petitioner does not seek to exhaust such a claim.
Because petitioner has failed to demonstrate cause for his failure to exhaust claims five and six, and because claim 6 (ineffective assistance of counsel) is plainly meritless, his motion to stay should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion to stay
(no. 15) be denied, the unexhausted claims be stricken, and respondent be ordered to answer to the exhausted claims. The Clerk is directed to assign a district judge to this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
Any reply to the objections hall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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