ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S WRIT FOR HABEAS CORPUS

RONALD M. WHYTE, District Judge.

On April 9, 1997, petitioner was convicted of two counts of grand theft, one count of attempting to dissuade a witness in furtherance of a conspiracy, one count of access card forgery, and one count of escape from a county jail. After unsuccessfully seeking relief in the California courts, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging all five convictions. This court found that the petition stated eleven cognizable claims under § 2254 and issued an order to show cause why this court should not grant the writ. Respondent filed an answer addressing the merits of the petition, and petitioner filed a traverse. Thereafter, on September 18, 2007, the court ordered respondent to file a supplemental answer showing cause why the petition should not be granted based upon an additional claim raised in petitioner's amended petition, which claim challenges petitioner's sentence. Respondent filed a supplemental answer, and petitioner filed a supplemental traverse.

After reviewing the papers and the record, the court finds that petitioner is entitled to habeas corpus relief as to his conviction of one of the two counts of grand theft. Accordingly, the court grants the petition to the extent it seeks relief from the state court judgment on that count. The court finds, however, that petitioner is not entitled to habeas corpus relief with respect to his conviction on the four remaining counts, and denies his petition with respect to his conviction on such counts. Based upon the sentences he received on the four remaining counts, upon which habeas relief is not granted, petitioner's continued custody in is lawful.

BACKGROUND

On March 18, 1997, petitioner was brought to trial on five separate felony charges, and allegations of four prior "strike" convictions. Four of the five charges against petitioner stemmed from his and his girlfriend's (Gina Miller) relationships with a series of elderly gentlemen, whom the couple was accused of defrauding. The prosecution formally charged petitioner and Miller with grand theft by false pretenses from two such gentlemen, Nicholas Brayevich and Wilbur Johnson, and additionally introduced evidence of three uncharged similar incidents involving Ned Wyss, Robert Dodd, and Jack McCallister. In addition to the theft charges, petitioner was charged with access card forgery with respect to Wilbur Johnson, and both petitioner and Miller were charged with attempting to dissuade Nicholas Brayevich from testifying. Petitioner was also charged with escaping from the Santa Clara County jail while awaiting trial on the above charges.

Petitioner and Miller were tried together, and the evidence admitted against them was voluminous. The California Court of Appeal summarized the evidence presented to the jury in a "much abridged" format as follows:

People v. Miller, No. H017020, Slip Op. at 2-9 (Cal.Ct.App. June 7, 2000) (hereinafter "Slip Op.").1

On April 9, 1997, the jury found petitioner guilty of grand theft as to Brayevich (Cal. Pen.Code § 487) with an enhancement for taking property valued at more than $150,000 (Cal. Pen.Code § 12022.6(b)), attempting to dissuade a witness (Brayevich) in furtherance of a conspiracy, (Cal. Pen.Code § 136.1(c)(2)), access card forgery relating to Wilbur Johnson (Cal. Pen.Code § 484f(b)), grand theft from Johnson (Cal. Pen.Code § 487), and escape from a county jail (Cal. Pen. Code § 4532(b)(1)). A bench trial then commenced on petitioner's four prior "strike convictions" (Cal. Pen.Code § § 667(a), 1170.12(b)(c)). On April 10, 1997, the trial court found these allegations true.

The trial judge sentenced petitioner to three consecutive prison terms of 25 years to life Count One (grand theft from Brayevich), Count Five (grand theft from Johnson), and Count Seven (escape from county jail). The judge also sentenced petitioner to a sentence of 25 years to life on Count 2 (attempting to dissuade a witness), to run concurrently with the sentence on Count One, and to a sentence of 25 years to life on Count Six (access card forgery), stayed pursuant to Penal Code section 654 (which prohibits multiple punishment for the same conduct). Additionally, the trial court sentenced petitioner to a consecutive two-year term for the excessive taking enhancement.

Petitioner appealed to the California Court of Appeal, Sixth Appellate District. The appellate court affirmed his conviction and sentence in a partially published opinion on June 7, 2000.2 Petitioner sought review from the Supreme Court of California. The Court denied review on September 20, 2000. Petitioner filed this writ seeking habeas relief on December 18, 2001. On July 28, 2003, respondent filed an answer addressing the merits of the petition, and on August 27, 2003, petitioner filed a traverse.3 Thereafter, petitioner exhausted an additional claim challenging the use of his prior convictions as "strikes" by raising such claim in an unsuccessful a habeas petition filed in the California Supreme Court. Petitioner then raised this in an amended petition filed in this court on June 12, 2007. Respondent filed a supplemental answer on October 23, 2007 addressing the additional claim, and petitioner filed a supplemental traverse January 10, 2008.

DISCUSSION

A. Standard of Review

This court will entertain a petition for writ of habeas corpus, "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The court may not grant a petition with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "Under the `unreasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495.

A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. The "objectively unreasonable" standard does not equate to "clear error" because "[t]hese two standards ... are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

While a state court decision may no longer be overturned on habeas review simply because of a conflict with circuit-based law, circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established." Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.2003).

B. Analysis of Legal Claims

As grounds for federal habeas relief petitioner asserts that: (1) there was insufficient evidence to convict him of theft by false pretenses as to Nicholas Brayevich; (2) the trial court failed to instruct the jury of the need for corroborating evidence as to the grand theft count; (3) there was insufficient evidence to convict him of access card forgery; (4) there was insufficient evidence to convict him of theft as to Wilbur Johnson; (5) the trial court erroneously admitted evidence of uncharged acts of misconduct; (6) there was insufficient evidence to convict him of attempting to dissuade a witness or victim; (7) the trial court failed to instruct the jury on the lesser included offense of misdemeanor attempting to dissuade a witness or victim; (8) the trial court gave confusing and conflicting instructions on the offense of attempting to dissuade a witness or victim; (9) the trial court failed to instruct on the necessary element of attempt on the attempting to dissuade a witness charge; (10) there was insufficient evidence to convict him of escape; (11) the admission of hearsay testimony regarding his escape offense violated his right to confront and cross-examine his accusers and his right to due process; and (12) his sentence violates his right to due process because the trial court did not prove beyond a reasonable doubt that his prior convictions qualified as "strikes" under California's "three strikes" law.

1. Sufficiency of Evidence Supporting Theft By False Pretenses Conviction (Nicholas Brayevich)

Petitioner asserts that the evidence adduced at trial was insufficient to support any of his five convictions. He first claims that the evidence introduced at trial was insufficient to support his conviction of theft by false pretenses as to Nicholas Brayevich. In particular, he contends that there was insufficient evidence to support this conviction because there was no competent evidence corroborating Brayevich's testimony regarding co-defendant Miller's oral false pretenses.

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt the states a constitutional claim, which, if proven, entitles him to federal habeas relief. see Jackson v. Virginia, 443 U.S. 307, 321, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781.

Sufficiency claims are judged by looking at the elements of the crime under state law. Jackson, 443 U.S. at 324, n. 16, 99 S.Ct. 2781. Under California law, a theft conviction on the theory of false pretenses requires proof that:

People v. Wooten, 44 Cal.App.4th 1834, 1842-43, 52 Cal.Rptr.2d 765 (1996) (citations omitted).

Moreover, if the conviction rests primarily on the testimony of a single witness that the false pretense was made, the making of the pretense must be corroborated. Cal.Penal Code § 1110. The corroboration required by Penal Code section 1110 is of the making of the pretense. Id. The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to for the corroborative evidence contemplated by the law. People v. Randono, 32 Cal.App.3d 164, 173, 108 Cal.Rptr. 326 (1973). The defendant cannot be convicted "unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances." Cal.Penal Code § 532(b). Corroborating evidence is sufficient if it tends to connect the defendant with the commission of a crime in such a way so as to reasonably satisfy the jury that the complaining witness is telling the truth; the corroboration is inadequate if it requires aid from the testimony of the witnesses to be corroborated to connect the defendant with the alleged offense. People v. Fujita, 43 Cal.App.3d 454, 470, 117 Cal.Rptr. 757 (1974); People v. MacEwing, 45 Cal.2d 218, 225, 288 P.2d 257 (1955). Corroborative evidence may be found in the circumstances connected with the transaction, the conduct of the defendant, and his declarations to other persons. Fujita, 43 Cal.App.3d at 470, 117 Cal.Rptr. 757; Randono, 32 Cal.App.3d at 173, 108 Cal.Rptr. 326. Because the corroborative evidence need only tend to implicate the defendant in the alleged illegal activity, it may be slight and entitled to little weight standing alone. Fujita, 43 Cal.App.3d at 470, 117 Cal.Rptr. 757.

At trial, Nicholas Brayevich testified at length regarding his relationships with co-defendant Gina Miller and with petitioner. Brayevich stated that his decision to part with over $150,000 was based largely on Miller's representations that she was single, living alone, had no children, and did not have a romantic relationship with petitioner. Nevertheless, petitioner argues, there was no competent evidence admissible against him corroborating Brayevich's testimony regarding Miller's oral misrepresentations.4 The California appellate court rejected this contention, finding that evidence regarding the Wyss, Dodd, and McAllister incidents was sufficient to provide the corroboration required by Penal Code section 532(b).

As summarized above, eighty-two-year old Ned Wyss testified that Miller approached him while shopping alone at a Lucky grocery store near Palm Springs, and the two thereafter developed a relationship. During the course of this relationship, Miller misrepresented both her name (she identified herself as `Selena McGill'), and her connection with petitioner (whom she introduced as her apartment manager and friend). After borrowing Wyss's credit card, petitioner disappeared for two to three weeks and ran up a "tremendous" amount of charges. Wyss also testified that petitioner asked him to co-sign a credit card application, then charged $20,000 to $30,000 on the account. Petitioner also charged a $14,000 Rolex watch to Wyss's account without authorization.

Seventy-nine-year old Robert Dodd testified that he was approached by a woman who identified herself as `Savanna' when dining alone at a Lyon's restaurant in Sunnyvale. `Savanna' represented that she was alone and without any money or place to stay with her two children, Eric and Moses. During a relationship that lasted approximately four to six months, Dodd spent about $5,000 on `Savanna.'

Seventy-eight-year old Jack McAllister testified that two women approached him in a Safeway parking lot in Campbell and engaged him in conversation. One of the two women asked to take him out to dinner. The dinner engagement was later broken by McAllister's daughter, Jill Genestra, when the women arrived at McAllister's home and refused to give their names. Genestra later saw Miller's photograph in the newspaper and thought the woman in the photograph resembled one of the women who had approached her father.

The testimony of Messrs. Wyss, Dodd and McAllister tends to show that Miller had a practice of approaching elderly men who appeared to be living on their own, giving them a false name, and attempting to develop a relationship with them based on their sympathy, and, in some cases, their sexual desires. Miller heightened these feelings by misrepresenting that she was without both resources and romantic entanglements, including such an entanglement with petitioner, whom she introduced to Brayevich as a friend and to Wyss as a friend and apartment manager. The court finds this testimony sufficient to corroborate Brayevich's allegations that Miller and petitioner misrepresented Miller's identity and personal circumstances, including the nature of Miller's relationship with petitioner.

Apparently anticipating an argument by respondent to the contrary, Harris's petition argues at length that Brayevich's testimony concerning co-defendant Miller's false representations was not corroborated by a taped conversation that occurred between Miller and Brayevich on September 22, 1995. The emphasis petitioner places on the admissibility of this taped conversation appears misplaced for several reasons.

First, the appellate court did not rely on this conversation to reach its conclusion that section 532(b)'s corroboration requirement had been met. Second, although the record is somewhat ambiguous on this point, it appears that the jury could have interpreted certain of the trial judge's admonishments and instructions as precluding its consideration of statements made by co-defendant Miller subsequent to petitioner's arrest (including the September 22, 1995, conversation between Miller and Brayevich) against petitioner. If the jury thus interpreted the admonishments and instructions, it, like the appellate court, did not rely on the conversation to reach its conclusion that section 532(b)'s corroboration requirement was satisfied. Finally, for the reasons discussed below, the taped conversation did corroborate Miller's earlier alleged false representations, and it was admissible evidence that could be used against petitioner.

(Answer to Petition for Writ of Habeas Corpus ("Answer"), Exhibit E, lodged April 22, 2004.)

Petitioner's arguments to the contrary notwithstanding, a logical inference can be made from Miller's statements during this recorded conversation that she had, in the past, represented to Brayevich that she had no children, was a virgin, and lived alone. As such, this conversation does corroborate Brayevich's testimony regarding Miller's false representations.

Petitioner asserts that, even if co-defendant's statements during the September 22, 1995, conversation implicitly corroborate her alleged prior false representations, the taped conversation was inadmissible for two reasons. First, petitioner argues that Miller's tape recorded statements were out-of-court statements of an accomplice, which themselves must be corroborated under the accomplice rule contained in California Penal Code § 1111 ("section 1111") before they can be used against him. He cites the case of People v. Belton, 23 Cal.3d 516, 519-27, 153 Cal.Rptr. 195, 591 P.2d 485 (1979), in which the California Supreme Court held that section 1111, which provides that a conviction cannot be based solely on uncorroborated accomplice testimony, applies to uncorroborated out-of-court accomplice statements admitted under California Evidence Code ("Evidence Code") section 1235 (which codifies the hearsay exception for prior inconsistent statements), even though these statements are not within the traditional definition of "testimony" in that they are not given under oath. Subsequent California Supreme Court opinions have emphasized, however, that Belton did not hold that all out-of-court statements should be interpreted as "testimony" necessitating the application of section 1111's corroboration requirement, but rather that:

People v. Williams, 16 Cal.4th 153, 245, 66 Cal.Rptr.2d 123, 940 P.2d 710 (1997) (citations omitted) (emphasis added).

In the instant case, co-defendant Miller's statements were not made under suspect circumstances. She was not being questioned by the police or by any other person arguably connected with law enforcement who might have been able to secure more lenient treatment for her. Moreover, the incentive for blame-shifting, at least in its traditional form, was largely absent from this case—because evidence establishing Miller's prior false representations was detrimental to both Miller and petitioner's prospects at trial. Given these circumstances, Miller's statements to Brayevich did not qualify as "testimony" under section 1111, and therefore did not need to be corroborated in order to be admissible.

Petitioner next argues that Miller's recorded statement was inadmissible because "co-defendant's statements were made by co-defendant only after petitioner already was in custody, and thus they obviously were not part of any ongoing conspiracy so as to be admissible against petitioner under the coconspiratory exception to the hearsay rule contained in section 1220 of the California Evidence Code." (Petition, December 18, 2001, ("Petition"), at 10-11, 11-16.) As respondent points out, however, Miller's statements were not offered to show the truth of the matters asserted (i.e., that Miller was a virgin, had no children, and lived alone). Rather, they were introduced to corroborate Brayevich's testimony that Miller had made false representations to him regarding her personal circumstances. As such, the statements did not constitute hearsay, and thus the applicability of an exception to the hearsay rule is irrelevant.5

In sum, the statements made by co-defendant Miller to Brayevich during their conversation of September 22, 1995, were admissible against petitioner to corroborate Brayevich's testimony that co-defendant had earlier made false representations. Moreover, the statements corroborated Brayevich's testimony regarding the earlier false representations allegedly made to him by Miller. In any event, the state appellate court found that evidence of the Wyss, Dodd, and McAllister incidents was sufficient to meet section 532(b)'s corroboration requirement, and, as explained above, this court agrees.

In addition to examining petitioner's corroboration argument, the court has also independently reviewed the voluminous record in this case to determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. There was ample evidence from which a rational juror could have found the elements of theft by false pretenses proven beyond a reasonable doubt.6

Therefore, petitioner has failed to demonstrate that the state appellate court's decision was contrary to clearly established United States Supreme Court precedent, or involved an unreasonable application of such precedent. 28 U.S.C. § 2254(d). Accordingly, petitioner is not entitled to habeas relief on this claim.

2. Instructions On Penal Code Section 532(b)'s Corroboration Requirement

Petitioner claims that the trial court's instructions failed to adequately inform the jury of the nature and amount of evidence necessary to corroborate the existence of a false pretense for a conviction of theft by false pretenses pursuant to California Penal Code § 532(b). Respondent contends that this claim is procedurally defaulted.

Federal habeas review of a claim is barred in all cases where a state prisoner has defaulted his federal claim in state court due to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To preclude federal review, a state court must have relied on a procedural bar as the basis for its disposition of the case. Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

To determine whether petitioner's claim was procedurally barred, we look to the last reasoned state court opinion—in this case the opinion of the California state court of appeals. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Citing California's rule that a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language, the court of appeal held that because the instruction was correct in law, and because the defendant had not requested amplifying or clarifying language, petitioner had waived this claim on appeal. Slip Op. at 15:3-7.

California's rule that a party's failure to request the amplification or clarification of a jury instruction at trial waives the right to object to the adequacy of the instruction on appeal is an "independent" state procedural rule in that it stems solely from California law. See, e.g., People v. Guiuan, 18 Cal.4th 558, 570, 76 Cal.Rptr.2d 239, 957 P.2d 928 (1998); People v. Byrnes, 30 Cal. 206, 208 (1866).7 A burden-shifting analysis is applied to resolve the issue of adequacy: "Once the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the adequacy of the state procedure." Bennett v. Mueller, 322 F.3d 573, 584 (9th Cir.2003). In the instant case, as stated above, respondent pled the affirmative defense of an independent and adequate state procedural bar, shifting the burden to place that defense at issue to petitioner. Petitioner, however, has not made any specific allegations as to the inadequacy of the state procedural rule. Therefore, he has not placed the adequacy of the state's procedural bar at issue.

Because the procedural rule relied upon by the California appellate court is "independent" for purposes of procedural default, and because petitioner has not placed the rule's "adequacy" at issue, the court concludes that this claim is procedurally defaulted. State court prisoners can under limited circumstances obtain federal habeas review of procedurally defaulted claims by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law, or by showing that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. A petitioner must establish factual innocence to show that a fundamental miscarriage of justice would result from application of a procedural default. See Gandarela v. Johnson, 286 F.3d 1080, 1085 (2002).

In his traverse, petitioner concedes that he cannot meet the cause and prejudice standard. Traverse at 10:14-21. He contends, however, that he meets the "fundamental miscarriage of justice" test because the failure to instruct, "resulted in the conviction of one who is actually innocent." Traverse at 10:21-26. Petitioner, however, submits no evidence, and makes no argument supporting this position outside of the conclusory assertion that he is actually innocent. For the reasons discussed above, that sufficient evidence existed in the trial record to support petitioner's conviction of theft by false pretenses, and petitioner's failure to offer any evidence contradicting the evidence admitted at trial, the court rejects his conclusory assertion of actual innocence.

Accordingly, petitioner is not entitled to habeas relief on this claim.

3. Sufficiency of Evidence Supporting Conviction For Credit Card Forgery

Petitioner next contends that the evidence adduced at trial was insufficient to support his conviction of credit card forgery with respect to the victim, Wilbur Johnson. Liberally construed, the petition advances four separate arguments supporting this insufficiency of evidence claim. First, petitioner asserts that the offense of credit card forgery did not occur because, "the only individual [who] signed a name in relation to any type of credit card transaction was the elderly Wilbur Johnston himself."8 Petition at. 19:11-14. Second, petitioner appears to suggest that no crime occurred in the absence of a net loss to victim Johnson. Third, petitioner claims that there was insufficient evidence at trial to establish that he was the person who used the fictitious name "Michael Marco." Finally, petitioner argues that the prosecution failed to establish the "lack of authority" element of credit card forgery.

As explained above, a federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne, 982 F.2d at 338. The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781.

Under California law, the elements of credit card forgery are: "(1) a person signed the name of another or fictitious person to any [sales slip, sales draft, or instrument for the payment of money which evidences an access card transaction]; (2) the person had no authority to sign the name of the other person; (3) the person knew that he did not have the authority to sign the other's name; and (4) the person signed the instrument with the specific intent to defraud another person." Cal.Penal Code § 484f(b); CALJIC No. 15.00.

Petitioner first argues that the offense of credit card forgery did not occur because "the only individual [who] signed a name in relation to any type of credit card transaction was the elderly Wilbur Johnston himself." Petition at 19:11-14. Respondent disputes the contention that Wilbur Johnson was the only person to sign a document that falls within the scope of Penal Code § 484f(b). Answer at 20:7-13.

As summarized in the background section above, the evidence admitted at trial showed that a man accompanied Johnson when Johnson bought a cellular telephone on June 12, 1995. RT at 1099-1123. The same man returned the phone for a store credit which he applied to a more expensive digital cellular phone, signing the name "Michael Marco" to a receipt to receive the store credit and to a second receipt verifying that the returned telephone was the item originally purchased. RT at 1102-14. The man came back a third time to return the items and purchase a yet more expensive cellular telephone and telephone accessories, again signing the name Michael Marco and having the initial purchase credited to his new purchase. RT at 1102-14; People's Trial Exhibit #38, lodged July 28, 2003.

The appellate court found that the store credit receipts signed by "Michael Marco" allowing Johnson's initial purchase amount of $221.53 to be applied toward Marco's subsequent purchases constituted, "instrument[s] for the payment of money which evidences an access card transaction" for the purposes of California Penal Code § 484f(b). This determination of state law is binding on this court. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (state court's interpretation of state law, including one announced on direct appeal of challenged conviction, binds a federal court sitting in habeas corpus). Petitioner has presented no authority, nor are we aware of any, to contradict the appellate court's construction of section 484f(b) to include these types of store credit receipts. Therefore, petitioner is incorrect that there was no evidence that anyone other than Johnson signed a credit card instrument within the meaning of California Penal Code § 484f(b).

Petitioner's second argument is that, when the name Michael Marco was signed, "it only pertained to a transaction where there was a return of property from a prior occasion with the acquisition of replacement items where the difference was paid for in cash." Petition at 19:18-21. That there may have been no net loss to Johnson, inasmuch as the person using the name Michael Marco paid in cash the difference between the first apparently authorized cellular telephone purchase and the subsequent, more expensive cellular telephones and accessories, does not mean no crime occurred. The salient element of section 484f(b) is the signing of the name of another person or a fictitious person in connection with a credit card transaction. 2 Witkin, Cal. Crim. Law 3d (2000) § 192 at 219. "The existence of a specific intent to defraud is an essential element of the crime of forgery, but it is not necessary to complete the crime that any person be actually defrauded or suffer a loss by reason of the forgery."9 CALJIC 15.03 (emphasis added). Accordingly, petitioner's argument that he could not be convicted in the absence of a net loss to Johnson fails.

Third, petitioner contends that there is insufficient evidence to support a finding that he "in fact was the individual who used the name Michael Marco in connection with the cash transactions that occurred on June 28, 1995, and August 16, 1995." Petition at 20:4-7. The California appellate court rejected this contention as follows:

Slip Op. at 19-20. The above evidence described by the state appellate court constitutes sufficient evidence from which a rational fact-finder could find beyond a reasonable doubt that petitioner was the person who signed the fictitious name "Michael Marco" to the store credit receipts.

Finally, petitioner argues that the prosecution failed to establish the "lack of authority" element of credit card forgery because it did not prove that Johnson did not give "Michael Marco" authority to sign store credit receipts allowing Johnson's initial purchase amount to be applied towards Marco's subsequent purchase. The prosecution need not prove the lack of authority to sign a fictitious name, however. As explained in California state court opinions analyzing California's general forgery statute, Penal Code section 47010:

Wutzke v. Bill Reid Painting Service, 151 Cal.App.3d 36, 41, 198 Cal.Rptr. 418 (1984) (emphasis in original) (citations omitted); see also People v. Porter, 136 Cal.App.2d 461, 467, 288 P.2d 561 (1955). In the instant case, ample circumstantial evidence showed that "Michael Marco" was a fictitious person created by petitioner for use as one of his aliases. Because "Michael Marco" was a fictitious name, it was not incumbent upon the prosecution to prove his `lack of authority' to sign this name.

In addition to rejecting the four specific arguments advanced by petitioner in support of his claim that insufficient evidence supported his conviction for credit card forgery, the court has independently reviewed those portions of the record relating to this conviction. Based on such review, the court finds that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. Therefore, petitioner has failed to establish that the state appellate court's decision was contrary to clearly established United States Supreme Court precedent, or involved an unreasonable application of such precedent.

Petitioner is not entitled to habeas relief on this claim.

4. Sufficiency of Evidence Supporting Grand Theft Conviction (Wilbur Johnson)

Petitioner next claims that there was insufficient evidence to support his conviction for grand theft from Wilbur Johnson. The state appellate court rejected this claim, finding that sufficient circumstantial evidence existed to support this conviction.

As explained above, a federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne, 982 F.2d at 338. The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781; Payne, 982 F.2d at 338; Miller, 757 F.2d at 992-93; Bashor, 730 F.2d at 1239. Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters, 45 F.3d at 1358. Mere suspicion and speculation, however, cannot support logical inferences. Id.

Under California law, the crime of grand theft can be prosecuted on multiple theories, including larceny, embezzlement, larceny by trick or device, and theft by false pretenses. CALJIC 14.00; Cal.Penal Code § 484. Petitioner contends that the jury was instructed only on a theory of theft by larceny, and not on the theories of theft by trick or device or theft by false pretenses. He apparently claims that, because the jury was not instructed on a theory of theft by false pretenses, his conviction cannot be upheld on this theory. Petitioner also argues that the record contains insufficient evidence to support his conviction under any of the theories that fall within the scope of California's grand theft statute. The appellate court rejected these arguments as follows:

People v. Miller, No. H017020, Slip Op. (Cal.Ct.App. June 7, 2000), as modified by People v. Miller, No. H017020, Slip Op. at 3-4 (Cal.Ct.App. July 6, 2000).

First, petitioner's argument that the jury was not instructed on a theory of theft by false pretenses is contradicted by the record. Although the trial judge's oral instructions regarding this count focused primarily on the theory of theft by larceny the trial judge's instruction that, "[t]he crime of theft may consist of theft by larceny or theft by false pretenses" permitted the jury to also consider the theory of theft by false pretenses. RT at. 2550:22-23. Accordingly, petitioner's conviction for grand theft could have rested upon theories of either larceny or false pretenses.

Juries need not specify the theory under which they return a conviction of grand theft, but at least one such theory must be supported by the record:

People v. Davis, 19 Cal.4th 301, 304-05, 79 Cal.Rptr.2d 295, 965 P.2d 1165 (1998) (citing People v. Ashley, 42 Cal.2d 246, 258, 267 P.2d 271 (1954)) (footnote added). With respect to larceny, the elements "are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass (5) with intent to steal the property, and (6) carries the property away. The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property." Id. at 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165 (citations and footnotes omitted).

As detailed in the background section, Johnson purchased women's beauty products from Bare Escentuals, women's and children's clothing from Mervyn's and The Emporium, and furniture from the Bedroom Store, in addition to the cellular telephone later returned by "Michael Marcos." The record is bereft, however, of direct evidence establishing that the relevant property was taken "by means of trespass." In addition, there was no evidence showing that Johnson called the police to report any theft, that he protested any of the pertinent charges with his credit card companies, or that he complained to his son about any of the purchases. Moreover, as to the Circuit City cellular telephone purchase, discussed at length above, the evidence presented showed that Johnson and petitioner visited the store together, and that Johnson voluntarily purchased the cellular telephone. RT at 1099-1123. The only circumstantial evidence supporting a theft by larceny theory was the evidence admitted pursuant to Evidence Code section 1101(b) that petitioner had committed acts of misconduct with respect to other individuals, and the testimony of Johnson's son that Johnson's spending habits had changed. Evidence of Johnson's decision to start buying new and more expensive items, even when considered with the 1101(b) evidence, is, without more, insufficient for a reasonable fact-finder to conclude beyond a reasonable doubt that those items were `stolen', that is, taken without Johnson's consent. Accordingly, there was insufficient evidence to convict petitioner of grand theft from Johnson on a larceny theory.

With respect to the theory of theft by false pretenses, a conviction requires proof that (1) the defendant made a false pretense or representation to the owner of property, (2) with the intent to defraud the owner of that property, and (3) the owner transferred the property to the defendant in reliance on the representation. Wooten, 44 Cal.App.4th at 1842-43, 52 Cal.Rptr.2d 765.—The evidence that petitioner misrepresented his name to Johnson as "Michael Marco" is sufficient to satisfy the first element, that petitioner made a false pretense or representation to the owner of the property. Evidence of petitioner's conduct during his relationship with Nicholas Brayevich, as well as evidence of his uncharged conduct with respect to Ned Wyss, constitutes sufficient circumstantial evidence from which a rational juror could conclude beyond a reasonable doubt that petitioner intended to defraud Johnson, satisfying the second element.

However, there is insufficient evidence to satisfy the third element, namely that reliance on the false representation. "A victim does not rely on a false representation if `there is no causal connection shown between the [representation] alleged to be false' and the transfer of property." Id. Because the only false representation discernible from the record pertinent to this charge is petitioner's misrepresentation of his name as "Michael Marco," the record must contain evidence sufficient to establish that Johnson transferred property to petitioner on that misrepresentation. A review of the record reveals no evidence that Johnson relied on this particular fact when deciding to purchase gifts for petitioner and co-defendant Miller. Respondent argues, and the state appellate court found, that evidence of the change in Johnson's spending habits and of the other "schemes" engaged in by petitioner and co-defendant Miller was sufficient to support petitioner's conviction. The record reveals no causal connection, however, between Johnson's belief that petitioner's name was "Michael Marco" and his decision to alter his spending habits. Of course, the jury may have speculated that Johnson would not have made gifts to petitioner if he had known that petitioner was lying about his name. While a conviction may properly rest upon logical inferences drawn from circumstantial evidence, mere suspicion and speculation, however, cannot support such logical inferences. Walters, 45 F.3d at 1358.12 Evidence relating to petitioner's interactions with other elderly gentlemen do not amount to proof of Johnson's state of mind (as opposed to the state of mind of petitioner and Miller) when he purchased the items for petitioner and Miller. As there was not sufficient evidence from which a rational jury could find beyond a reasonable doubt that Johnson relied upon petitioner's false representations, there was not sufficient evidence to support petitioner's conviction for grand theft of Johnson based on a theory of theft by false pretenses.13

In sum, after viewing the evidence in the light most favorable to the prosecution, no rational trier-of-fact could have found the essential elements of grand theft based upon either a theory of larceny or of false pretenses. The state appellate court's decision to the contrary amounted to an unreasonable application of clearly established United States Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d). Accordingly, petitioner is entitled to federal habeas relief on his conviction of Count Five, namely grand theft of Wilbur Johnson.

5. Admission of Uncharged Acts of Misconduct

Petitioner next contends that the trial judge violated his federal due process rights by erroneously admitting into evidence the Wyss, Dodd, and McAllister incidents. The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.1999). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. Id. While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991).

A habeas petitioner who challenges a state court's admission into evidence of prior acts of misconduct is not entitled to habeas corpus relief unless the state court's admission of this evidence violated the petitioner's federal due process right to a fair trial under the Constitution. See Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). When evaluating the due process claim, the habeas court considers the relevance of the evidence, the trial court's use of limiting instructions, and the jury's ability to weigh the credibility of the witnesses to the uncharged misconduct. Gordon v. Duran, 895 F.2d 610, 613 (9th Cir.1990) (admission of uncharged crimes did not violate due process where trial court gave limiting instruction to jury, jury was able to weigh witnesses' credibility and evidence was relevant to the defendant's intent)

Respondent first argues that the uncharged misconduct evidence was relevant under Evidence Code § 1101 ("section 1101") to show petitioner and Miller's criminal intent. Under section 1101, evidence of a prior crime or bad act is admissible so long as it shows not only criminal disposition (i.e., bad character), but is relevant to prove a fact such as motive, opportunity, intent, plan, or knowledge. Cal. Evid.Code § 1101(b); People v. Ewoldt, 7 Cal.4th 380, 393, 27 Cal.Rptr.2d 646, 867 P.2d 757 (1994). To prove a violation of Penal Code section 487, the theft statute under which petitioner was prosecuted as to both Nicholas Brayevich and Wilbur Johnson, the government must prove that the defendant had a "specific intent to defraud" the victim. CALJIC 14.10.

Petitioner contends that the uncharged acts were not admissible under section 1101 because the issue of intent was not in dispute at trial. Petition at 24:24-25:2. Petitioner points to closing argument, when defense counsel argued that Brayevich had not been defrauded, but rather that he, Miller, and petitioner had had mutually satisfying relationships which brought companionship and sexual pleasure to Brayevich, and money and material goods to his client and co-defendant. Trial counsel vigorously argued that Brayevich's decision to part with his money was based on the satisfaction he received from these relationships, rather than on the misrepresentations made by co-defendant and petitioner.

While trial counsel may have tacitly conceded that his client was out to get all he could from Brayevich, a morally distasteful state of mind, perhaps, but not necessarily a criminal one, counsel did not concede, and the prosecution therefore had the burden to prove, that petitioner specifically intended to defraud Mr. Brayevich in order to do so. This is a critical distinction. Petitioner's reliance on People v. Bruce, 208 Cal.App.3d 1099, 256 Cal.Rptr. 647 (1989) to support his argument that evidence of the Wyss, McAllister and Dodd incidents should not have been admitted pursuant to section 1101 is misplaced. In Bruce, the trial court admitted evidence of an uncharged rape despite appellant's repeated and specific disavowal of any defense other than actual consent by the victim; the appellate court reversed Bruce's conviction, finding that the uncharged rape had no tendency to prove or disprove whether the victim of the charged rape had consented to intercourse with the appellant, and holding that the evidence was not admissible on the issue of appellant's intent because appellant had not asserted a defense that put his state of mind at issue. Bruce, 208 Cal.App.3d at 1105-06, 256 Cal.Rptr. 647. As explained above, in the case at bar, petitioner's state of mind was at issue because the prosecution had the burden of proving petitioner's intent to defraud Mr. Brayevich.

Petitioner further argues that the charged incidents and uncharged incidents were so dissimilar that the uncharged incidents evidence had no tendency to prove his intent with regard to Mr. Brayevich. However, in the uncharged incidents, as in the charged incidents, Miller (and petitioner, in the case of Ned Wyss) repeatedly misrepresented Miller's name and her circumstances in an obvious attempt to make Miller more attractive and sympathetic to elderly gentlemen, and to conceal her true identity.14 This rendered the evidence of the uncharged acts relevant to show petitioner's intent. "If a person acts similarly in similar situations, he probably harbors the same intent in each instance . . . and such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." People v. Gallego, 52 Cal.3d 115, 171, 276 Cal.Rptr. 679, 802 P.2d 169 (1991).

Respondent also asserts that the Wyss, Dodd, and McAllister incidents were admissible to corroborate the testimony of Nicholas Brayevich. Petitioner disagrees, arguing that the Wyss, Dodd, and McAllister incidents were insufficiently similar to the Brayevich and Johnson incidents to provide corroboration.15 For the reasons discussed above, however, the testimony of Messrs. Wyss, Dodd, and McAllister is relevant (and sufficient to corroborate) Brayevich's allegations that Miller and petitioner misrepresented Miller's identity, residential status, and the nature of Miller's relationship with petitioner. We reject petitioner's assertion to the contrary.

In sum, the evidence relating to the Wyss, Dodd, and McAllister incidents was relevant both to show petitioner and Miller's intent under Evidence Code § 1101, and to corroborate Brayevich's testimony. Moreover, the trial judge properly instructed the jury that it was not to consider the uncharged misconduct to prove the bad character or disposition of petitioner and Miller, but could only consider it as it related to the issue of criminal intent. RT at 2544. Juries are presumed to follow the court's instructions. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). In addition, the jury had an opportunity to observe and weigh the credibility of Messrs. Wyss, Dodd, and McAllister, all three of whom testified in person at petitioner's trial. Consequently, petitioner's due process right to a fair trial was not violated by the trial court's admission of evidence of the alleged uncharged acts of misconduct.

Accordingly, petitioner is not entitled to habeas relief on this claim.

6. Sufficiency of Evidence Supporting Conviction for Attempting to Dissuade a Witness

Petitioner next claims that there was insufficient evidence presented at trial to support his conviction for attempting to dissuade Nicholas Brayevich from testifying in furtherance of a conspiracy, pursuant to California Penal Code § 136.1. Petitioner advances two arguments' in support of this claim. First, petitioner asserts that he could not have been acting in furtherance of a conspiracy to dissuade Brayevich because petitioner was in custody at the time of the acts on which his conviction is based occurred. Second, he contends that section 136.1 is not broad enough to encompass his conduct.

As explained above, a federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne, 982 F.2d at 338. The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781.

The elements of the charge against petitioner for intimidating Brayevich from testifying, in furtherance of a conspiracy, are as follows: (1) Nicholas Brayevich was a witness or a victim; (2) another person, with the specific intent to do so, attempted to prevent or dissuade Brayevich from (a) attending or giving testimony at any trial, proceeding, or inquiry authorized by law, (b) making a report of such victimization to any peace officer, (c) causing a complaint or other accusatory pleading to be sought and prosecuted, and from assisting in the prosecution thereof, or (d) arresting or causing or seeking the arrest of any person; (3) that person acted knowingly and maliciously; and (4) the act of preventing, dissuading, or the attempt thereto was in furtherance of a conspiracy. See Cal.Penal Code § 136.1(c)(2); CALJIC No. 7.15.

Petitioner first argues that he could not have been acting in furtherance of a conspiracy when he telephoned Brayevich and asked him to drop the pending charges because he was in custody when he made the call. Petitioner cites People v. Pic'l, 114 Cal.App.3d 824, 171 Cal.Rptr. 106 (1981), disapproved of on other grounds by People v. Kimble, 44 Cal.3d 480, 244 Cal.Rptr. 148, 749 P.2d 803 (1988), and People v. Saling, 7 Cal.3d 844, 103 Cal.Rptr. 698, 500 P.2d 610 (1972), for the proposition that once some of the co-conspirators have been arrested, the conspiracy has come to an end. He also quotes Sandez v. United States, 239 F.2d 239 (9th Cir.1956), which states, "[w]e think that the moment of any conspirator's arrest is decisive as to him, even if it should be maintained that the arrest of the first conspirator is not conclusive as to all. At that moment, the conspiracy has been thwarted, and presumably no other overt act contributing to the conspiracy can possibly take place at least so far as the arrested conspirator is concerned." Petition at 31:21-32:3. Petitioner's reliance upon Pic'l, Saling, and Sandez is misplaced. These cases stand at most for the proposition that when a defendant is arrested and placed in custody such that he can perform no further acts in furtherance of the conspiracy, the conspiracy (as to him) is deemed to have ended. These decisions do not, nor could they sensibly, hold that the arrest of a conspirator halts a conspiracy when the object of the conspiracy, such as dissuading a witness from testifying, can be accomplished or furthered while the would-be conspirator is in custody. In this case, petitioner was equipped to — and did — take steps towards dissuading Brayevich from testifying while he was in custody. Accordingly, petitioner's arrest in this case did not preclude him from acting in furtherance of the conspiracy, and there was thus sufficient evidence to prove this element of the offense.

Petitioner next contends that his conduct did not fall within the scope of California Penal Code § 136.1. Petitioner telephoned Brayevich from custody on September 16, 1995, and said such things as "Nick, are you gonna come to court? We already have enough problems as it is"; "Oh, so they are gonna press charges? So that's what you're doing Nick? Is that what you're gonna do?"; "Well can you drop whatever it is?"; "Can you just drop whatever it is they want you to do?"; "Can you drop whatever they want you to do?"; "Drop the charges?"16 Answer, Ex. C. Petitioner argues that, "neither a victim, nor a witness, can dictate to the prosecution to `drop the charges'. Thus, on its face [petitioner's] request to Brayevich was a legal impossibility." Petition at 30: 20-22. Petitioner also argues that, because he was already being investigated for his role in the Brayevich theft at the time he called Brayevich, "there is nothing in [his] conduct which would in any way dissuade or prevent Brayevich from being a witness, from making a report, from causing an accusatory pleading to be sought, from assisting in the prosecution of that accusatory pleading, [or] from causing or seeking the arrest of petitioner." Petition at 30:25-31:4.

The California appellate court rejected this claim as follows:

Slip Op. at 25. During the September 16, 1995, conversation petitioner clearly attempted to convince Brayevich to refrain from attending and testifying at any future court proceedings. It was not necessary for the prosecution to demonstrate the precise existence of the proceeding at which Brayevich would be called as a witness. Moreover, "there is . . . no talismanic requirement that a defendant must say `Don't testify' or words tantamount thereto, in order to commit the charged [offense] . . . As long as his words or actions support the inference that he attempted. . . to induce a person to withhold testimony, a defendant is properly convicted of a violation of section 136.1". People v. Mendoza, 59 Cal.App.4th 1333, 69 Cal.Rptr.2d 728, 735 (1997), superseded by statute on other grounds.

In addition to examining the two specific arguments advanced by petitioner in support of this claim, the court has also independently reviewed the record, including a transcript of the taped telephone call made by petitioner to Brayevich on September 16, 1995. (Answer, Ex. C.) The record contains ample evidence from which a jury could rationally infer that petitioner attempted to dissuade Brayevich from testifying in furtherance of a conspiracy. Therefore, the state appellate court's decision was neither contrary to clearly established United States Supreme Court precedent, or involved an unreasonable application of such precedent. 28 U.S.C. § 2254(d).

Petitioner is not entitled to habeas relief on this claim.

7. Failure To Instruct On Lesser-Included Offense

Petitioner claims that the trial court violated his constitutional right to due process by failing to instruct the jury on a lesser-included offense. As discussed above, petitioner was convicted of the felony offense of attempting to dissuade a witness in furtherance of a conspiracy in violation of California Penal Code section 136.1(c)(2). Petitioner was not charged with, and the trial court did not sua sponte instruct on, the lesser-included offense of `misdemeanor'17 attempting to dissuade a witness under California Penal Code section 136.1(b). The California appellate court rejected petitioner's federal due process claim, finding that there is no federal constitutional violation based on a failure to instruct on a lesser-included offense in a non-capital case.

Although the Supreme Court has held that a failure to instruct on a lesser-included offense may be constitutional error in a capital case, Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), it has not extended this holding to non-capital cases. The Ninth Circuit accordingly has held that the failure of a state trial court to instruct on lesser-included offenses in a non-capital case does not present a federal constitutional claim. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.2000). Therefore, petitioner is precluded from federal habeas relief on this claim.18

8. Instructions Defining Conduct and Mental State Necessary for Section 136.1(c)(2) Conviction

Petitioner next contends that the trial court gave conflicting and confusing instructions as to the conduct and mental state necessary for a conviction under section 136.1(c)(2). He claims that the instructions were so confusing that they violated his right to due process.

A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). To obtain federal collateral relief for error in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id. at 72, 112 S.Ct. 475. The defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Id. at 73, 112 S.Ct. 475.

The trial court instructed the jury in the language of the statute as follows:

RT at 2552-2554.

RT at 2559-60.

Petitioner first argues that the trial court gave the jury a "very mixed message" as to what conduct constitutes a violation of section 136.1(c)(2). He concedes that the court correctly instructed that a "violation of subdivision (c)(2) would occur if the conduct described in subdivisions (a) and (b) was done in furtherance of a conspiracy." Petition 35:16-18. He contends, however, that immediately prior to giving the correct instruction, the court incorrectly instructed the jury that a verdict of guilty could be returned if any of the conduct in subdivisions (a), (b), or (c)(2) occurred. Petition at 35:19-25. Petitioner argues that the allegedly conflicting instructions may have confused the jury regarding the conduct necessary for a conviction.

The appellate court rejected petitioner's claim, finding, after consideration of the entire charge to the jury, that there was not a reasonable likelihood that the jury misinterpreted the trial court's instructions in a way potentially unfavorable to the defense. Slip Op. at 25-27. This decision was not contrary to federal law, within the meaning of 28 U.S.C. § 2254(d)(1) because the appellate court applied the correct federal standard to petitioner's claim. See Estelle v. McGuire, 502 U.S. at 72 & n. 4, 112 S.Ct. 475 (when deciding whether an arguably ambiguous instruction is erroneous, the appropriate inquiry is "whether there is a `reasonable likelihood' that the jury has applied the challenged instruction in a way that violates the Constitution.").

The California appellate court also reasonably applied the applicable federal law 28 U.S.C. § 2254(d)(1). Petitioner assails the portion of the instruction that states that, "[e]very person attempting the commission of any act described in (A)(B) and (C) is guilty of the offense attempted without regard to success or failure of such attempt." RT, p. 2554. He contends, in essence, that there is a reasonable likelihood that the jury interpreted "(A)(B) and (C)" to mean (A) or (B) or (C). Even when viewing the disputed language in isolation, petitioner's interpretation is a strained one. Moreover, it is well established that the assailed instruction, "may not be judged in artificial isolation", but must be considered in the context of the instructions as a whole and the trial record. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Here, immediately after instruction with the (arguably) ambiguous language, the trial court correctly and clearly set out the elements of the statute. While the instruction was not as clear as it might have been, when the instruction is read in the context of the all of the instructions, there is not a reasonable likelihood that the jury interpreted this instruction as permitting them to convict petitioner of violating section 136.1(c)(2) simply by virtue of committing any act "in furtherance of a conspiracy." Cal.Penal Code § 136.1(c)(2). Consequently, the appellate court correctly applied Estelle's `reasonable likelihood' standard.

Petitioner next contends that the trial court gave contradictory instructions regarding the mental state necessary for a section 136.1 conviction. He argues that by defining `knowingly' and `maliciously', the court gave three different definitions of the necessary mental state, and that two of the definitions were erroneous: "[i]n short, the trial court presented to the jury three different concepts as to the issue of intent in connection with a violation of section 136.1 of the California Penal Code. One was the correct concept (i.e. a specific intent to prevent or dissuade), while the other two were the wrong concepts (i.e., (a) an intent to do any wrongful act, and (b) no specific intent at all). Clearly, these contradictory instructions on specific intent, any wrongful act, and no specific intent at all, reasonably could have led the jury into a state of total confusion as to the necessary intent for a violation of section 136.1 of the California Penal Code." Petition at 37:3-14.

Again applying the `reasonable likelihood' standard, the California appellate court rejected this argument as follows:

People v. Miller, No. H017020, Slip Op. at 28 (Cal.Ct.App. June 7, 2000).

The trial court did not error by defining the concepts of knowingly and maliciously. Under California law, trial courts are required to define `knowingly' and `maliciously' in section 136.1 prosecutions. People v. Hallock, 208 Cal.App.3d 595, 610, 256 Cal.Rptr. 264 (1989). Moreover, the unambiguous meaning of the instructions was that petitioner could not be convicted under section 136.1 unless he had a specific intent to dissuade Brayevich from testifying. Therefore, there is no reasonable likelihood that the jury interpreted the instructions as not requiring that intent.

Accordingly, petitioner is not entitled to habeas relief on this claim.

9. Failure to Adequately Instruct Jury on Definition of Attempt

Petitioner next claims that the trial court's instructions did not adequately inform the jury of the possibility of convicting petitioner of attempting to dissuade a witness.

First, petitioner first argues that, because Brayevich was not actually prevented or dissuaded from testifying or otherwise assisting the prosecution, the jurors should have been instructed with CALJIC 6.00—which instruction would have permitted them to find petitioner guilty only of an attempted violation of section 136.1. The California appellate court rejected this argument as follows:

Slip. Op. at 24. As correctly explained by the appellate court, petitioner violated section 136.1 by attempting to dissuade Brayevich from testifying, regardless of whether Brayevich was so dissuaded. As the jury was instructed, it is immaterial whether the attempt to dissuade was successful. See CALJIC No. 7.15. As the record does not support an argument that petitioner only attempted to attempt to dissuade Brayevich, there was no need for an instruction on attempt.

Petitioner next argues that even if CALJIC 6.00 was not required, the trial court had a duty to clarify the meaning of section 136.1's attempt element, specifically as to the requirements of "intent" and an "act" in furtherance of that intent (not merely preparatory in nature). Under California law, a trial court "has no sua sponte19 duty to give amplifying or clarifying instructions . . . where the terms used in the instructions given are `commonly understood by those familiar with the English language.'" People v. Richie 28 Cal.App.4th 1347, 1360, 34 Cal.Rptr.2d 200 (1994). Petitioner has presented no authority suggesting that the word "attempt" is not commonly understood by those familiar with the English language. The word attempt connotes the intent to accomplish its subject and an act not preparatory in nature — both in law and in ordinary language. See generally People v. Lyons, 235 Cal.App.3d 1456, 1461, 1 Cal.Rptr.2d 763 (1991). Accordingly, petitioner has not established that the trial court's failure to define attempt was erroneous.

Moreover, petitioner has not established that any error in failing to define attempt "so infected" the section 136.1 portion of his trial "that the resulting conviction violates due process." See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). A habeas petitioner whose claim involves a failure to give a particular instruction bears an "especially heavy burden." Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir.1997). A review of the trial transcript, including the closing arguments and jury instructions, reveals that petitioner cannot meet this heavy burden.

Accordingly, petitioner is not entitled to habeas relief on this claim.

10. Sufficiency of Evidence Supporting Escape Conviction

Petitioner next claims that there was insufficient evidence to support his escape conviction. In particular, he alleges that the prosecution failed to establish that he was, "arrested and booked" on a felony as required by California Penal Code § 4532. The elements of the crime of escape under Penal Code section 4532(b)(1) are: (1) a person has been either arrested and booked for, or charged with, or convicted of, a felony; (2) that person has been either confined in jail, or placed in the lawful custody of an officer; and (3) that person escaped, or attempted escape from said jail or custody. CALJIC 7.30; Cal.Penal Code § 4532(b)(1). At trial, the prosecution admitted into evidence a `jail I.D. sheet' to establish that petitioner was booked. Petitioner argues, however, that the prosecution failed to lay an adequate foundation for the use of this sheet under the official record exception to the hearsay rule, and that in the absence of this sheet, insufficient evidence existed to establish the booking element.

Respondent contends that this portion of petitioner's insufficiency of evidence claim is procedurally defaulted. The appellate court ruled that petitioner's trial counsel's failure to object to the adequacy of the foundation for the `jail I.D. Sheet' waived this claim pursuant to Evidence Code section 353. As explained above, Evidence Code § 353 has been found to be both independent and adequate for the purposes of federal habeas procedural default analysis. Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir.2001); Bonin v. Calderon, 59 F.3d 815, 842-43 (9th Cir.1995); see generally Coleman, 501 U.S. at 750, 111 S.Ct. 2546 (claim is procedurally defaulted from federal habeas review if state courts rejected it based on independent and adequate state procedural rule). Accordingly, petitioner's claim that the prosecution laid an inadequate foundation for admissibility of the `jail I.D. sheet' is procedurally defaulted pursuant to an independent and adequate state procedural rule. Accordingly, we do not reach the merits of this claim.20

Petitioner next argues that insufficient evidence established that he was "arrested". The California appellate court addressed this claim as follows:

The I.D. sheet shows an arrest date of February 14, 1996, at 150 West Hedding Street in San Jose at 2:05 p.m. Four charges are listed, among them grand theft and dissuading a witness. They are designated felonies on the sheet. Bail is set at $1 million. Two warrant numbers are listed. Additional evidence of an FBI Officer who interviewed Harris in the Beverly Hills jail in an attempt to find [co-defendant] Miller revealed that [petitioner] was first arrested on the San Jose fraud case on warrants from Santa Clara County in June. Finally, the I.D. sheet shows that the Los Angeles Sheriff's Department was the transporting agency.

This is not the clearest evidence that Harris was arrested on the felony charges for which he was booked, and it takes some piecing together, but it is sufficient to support conviction of the crime. First, the evidence is credible and trustworthy. It is based on the document generated in the ordinary course when an inmate is booked into the jail and on the testimonial evidence of the FBI officer. The testimony established that Harris was arrested in June in Beverly Hills on Santa Clara County warrants alleging fraud and that he was placed in the Beverly Hills jail. The Santa Clara County jail I.D. sheet shows that Harris was transported to Santa Clara by the Los Angeles Sheriff's Department and that the Santa Clara County jail on Hedding Street booked him in at 2:05 p.m. on February 14, 1996, on four charges including grand theft and dissuading a witness. Bail was set at $1 million. This evidence is sufficient to show that [petitioner] was "arrested."

Slip Op. at 34-35.

The appellate court's reasoning establishes persuasively that there was sufficient evidence that petitioner was "arrested in relation to the crimes for which he was booked." Further, the court has independently reviewed those portions of the record relating to petitioner's escape conviction and have found sufficient evidence supported the booking and arrest elements. In addition, the evidence admitted on the remaining two elements (that petitioner was confined in a county jail, and that he escaped from that jail) was overwhelming. Petitioner has failed to establish that the state appellate court's decision was contrary to clearly established United States Supreme Court precedent, or involved an unreasonable application of such precedent. 28 U.S.C. § 2254(d).

Accordingly, petitioner is not entitled to habeas relief on this claim.

11. Admission of Hearsay Evidence

Petitioner also argues that the trial court's admission of hearsay statements by his escape co-conspirator Jamie Owen violated both his Sixth Amendment right to confront and cross-examine witnesses and his right to federal due process. Five hearsay statements by Owen were admitted at trial through the testimony of prosecution witnesses Dana Mulvani and Sergeant Brian Arrington. Petitioner's trial counsel objected to admission of the statements on hearsay grounds. The prosecution argued that the statements fell within the "declaration against interest" exception to the hearsay rule because Owen was subsequently charged with and convicted for petitioner's escape. After requiring the prosecution to show that the statements were made prior to petitioner's arrest (on the escape charge), the trial court overruled petitioner's trial counsel's objections and admitted the hearsay statements.

On direct appeal, petitioner challenged the admission of Owen's statements on three grounds. Petitioner argued that the statements should not have been admitted under the "declaration against interest" exception because the prosecution did not establish that Owen was unavailable as a witness (the "unavailability argument"). He also argued that the statements did not qualify under that hearsay exception because they were not in fact against Owen's interest, and he argued that admission of the statements violated the Confrontation Clause.

Respondent argues here that petitioner's claim is procedurally defaulted because the state appellate court found that petitioner waived all his arguments challenging the admissibility of Owen's hearsay statements, and also rejected these arguments on the merits. When the state court denies a petition on the merits and as procedurally barred, the claims raised in that petition are procedurally barred if the cited procedural bar is an independent and adequate state ground for decision. See Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir.2002). By contrast, where a state court decision lacks a clear and express statement that the state court is relying on the procedural bar as a separate basis for the decision as to each claim, the district court may reach the merits of the claim. See Siripongs v. Calderon, 35 F.3d 1308, 1316 (9th Cir.1994). The appellate court found that petitioner's failure to object at trial to the lack of proof that Owen was unavailable as a witness waived the issue on appeal pursuant to Evidence Code § 353. Accordingly, petitioner has procedurally defaulted the unavailability argument portion of this claim. See Melendez, 288 F.3d at 1125. By contrast, it is not clear that the appellate court found that petitioner waived his two other arguments challenging the admission of the such statements, namely his argument that their admission violated due process because Owen's statements were not in fact against interest, and his argument that their admission violated the Confrontation Clause. Accordingly, petitioner has not procedurally defaulted these two alternative arguments, and the court will consider them on their merits. See Siripongs, 35 F.3d at 1316.

The appellate court ruled that one of Owen's five statements was admissible under the hearsay exception for declarations against penological interest, while the other four were admissible under different hearsay exceptions: three statements were admissible as statements of a party declarant (Evidence Code § 1220), and one statement was admissible as a statement of the declarant's then existing mental state offered to explain acts or conduct of the declarant (Evidence Code § 1250(a)(2)). Slip Op. at 40. In the instant habeas petition, however, petitioner merely repeats the argument made on direct appeal that the admission of all five of the statements violate his rights of confrontation and due process because they do not constitute declarations against interest. Petitioner does not contest the appellate court's finding that four of the statements were admissible under alternative hearsay exceptions, nor does he argue that their admission under such exceptions violated his due process or Sixth Amendment rights. Accordingly, the court has no occasion to decide whether the admission of the four hearsay statements found to be admissible pursuant to hearsay exceptions other than the exception for declarations against interest violated petitioner's right to due process or his right of confrontation under the Sixth Amendment.

The only statement by Owen that the state appellate court found to be a "declaration against interest" was Owen's statement that "that Owen gave [petitioner] his booking sheet." Slip Op. at 40. The appellate court reasoned that, "[the statement] establishes one fact tending to show Owen's participation in the crime, that is, Owen's transfer to [petitioner] of knowledge that enabled [petitioner] to unlawfully obtain his release from jail." Id. The admission of this statement violated neither the Confrontation Clause nor petitioner's right to due process.

With respect to the Confrontation Clause, in Ohio v. Roberts, the United States Supreme Court held that the veracity of hearsay statements is sufficiently dependable to allow the untested admission of such statements against an accused when (1) "the evidence falls within a firmly rooted hearsay exception" or (2) it contains "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statements' reliability.21 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), the Court was directly presented with the question of whether the declaration against penal interest exception to the hearsay rule constitutes a firmly rooted hearsay exception. The Court22 stated that, due to the broadness of the label, the category of "`declaration[s] against penal interest' . . . defines too large a class for meaningful Confrontation Clause analysis.'" Id. at 127, 119 S.Ct. 1887 (citations omitted). The Court therefore divided statements against interest into three subcategories: (1) voluntary admissions against the declarant; (2) exculpatory evidence offered by a defendant who claims that the declarant committed, or was involved in, the offense, and (3) evidence offered by the prosecution to establish the guilt of an alleged accomplice of the declarant. Id.

Owen's statement regarding his booking sheet falls into the third subcategory, i.e. a confession of an accomplice implicating the defendant, as did the statement at issue in Lilly. The Court concluded that such statements "are not within a firmly rooted hearsay exception as that concept has been defined in our Confrontation Clause jurisprudence." Id. at 134, 119 S.Ct. 1887.23 The Court reached this conclusion by reasoning that:

Id. at 131-133, 119 S.Ct. 1887. (citations omitted). Although the Lilly opinion states that a "third subcategory" statement is not admissible as a statement falling within a "firmly rooted hearsay exception," it does not preclude such a statement from being admitted under Roberts' "particularized guarantees of trustworthiness" standard. Lilly, 527 U.S. at 134, n. 5, 119 S.Ct. 1887. Therefore, admission of an accomplice's confession inculpating the defendant does not violate the Confrontation Clause if (and only if) the statement bears particularized guarantees of trustworthiness.

The appellate court described the circumstances under which Owen's statement was made as follows:

Slip Op. at 38.24

The appellate court's description of the facts reveals that Owen's statement about the booking sheet occurred during his second conversation with Sergeant Arrington — the conversation during which Owen also told Arrington that petitioner had threatened to harm Owen's family if Owen did not follow through with their escape plan. Owen's statements made during this conversation, in particular the statement that petitioner had threatened to harm his family, suggest that Owen was speaking with the intent of inculpating petitioner and the hope of receiving leniency for his own actions. It is true that most of the statements made by Owen in this conversation with Arrington inculpated himself as well as petitioner in the escape. But, "[o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." Williamson v. United States, 512 U.S. 594, 599-600, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). This can mean not only interspersing exculpatory statements with inculpatory ones, but also making statements that are both exculpatory and inculpatory at the same time. Lilly was concerned with accomplice attempts at either "shifting or spreading" Forn, 343 F.3d at 997 (citing Lilly, 527 U.S. at 133, 119 S.Ct. 1887) (emphasis in original).

It is true that Dana Mulvani offered a nearly identical account of the Harris-Owen transaction in the jail dormitory. The Lilly court, however, explicitly rejected the argument that the trustworthiness of a statement could be judged in relation to other corroborating evidence, finding it "irrelevant" that other evidence at trial corroborated the declaration at issue. Lilly, 527 U.S. at 137-38, 119 S.Ct. 1887. This principle was first announced in Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), when the Court, interpreting the Confrontation Clause, held that "hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." As a result, the corroboration provided by Mulvani's statement is irrelevant to the trustworthiness of Owen's statement for purposes of the Confrontation Clause analysis.

Because Owen's statement about the booking sheet was made to the authorities during the same conversation as other statements whose purpose was transparently to "shift or spread" blame, and because Mulvani's corroborating testimony is irrelevant under Lilly, we find that the statement did not bear "particularized guarantees of trustworthiness" under Roberts. Thus, as the `booking sheet' statement neither falls within a firmly rooted hearsay exception nor contains particularized guarantees of trustworthiness, its admission, without an opportunity to cross-examine Owen, violated petitioner's rights under the Confrontation Clause.

This does not end our analysis, however. In order to determine whether petitioner is entitled to habeas relief as a result of the Confrontation Clause violation, the court must conduct a harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 681-84, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Under Brecht v. Abrahamson, habeas relief is proper only if any error by the state courts properly subject to harmless error analysis "had substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The evidence offered against petitioner at trial on the escape charge was overwhelming, independent of the booking sheet statement-indeed, even independent of all five of the disputed Owen's statements. Dana Mulvani testified from his personal knowledge to a complete description of petitioner's escape plan, as the plan was hatched in Mulvani's presence and even at his (allegedly joking) suggestion. RT at 1382:3-27. He personally witnessed Owen hand his identity wristband to petitioner. RT at 385:4-15. Moreover, petitioner's fingerprints were identified as those on Owen's release documentation. RT at 1521:10-1523:3; Trial Exhibit No. 47, lodged July 28, 2003, as "Identification Report." Petitioner offered no legitimate explanation for these fingerprints, nor was any such explanation remotely apparent from the prosecution's case in chief. Finally, as pointed out by respondent, "[p]etitioner was missing from the jail the next morning and Owen was still there." Answer at 50:15-16. Under such circumstances, petitioner would have likely been convicted absent the admission of Owen's statements, and thus any violation of petitioner's Confrontation Clause stemming therefrom did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637, 113 S.Ct. 1710. Therefore, petitioner is not entitled to habeas relief on his Sixth Amendment claim.

As discussed above, petitioner also contends that admission of the "booking sheet statement" violated his right to due process because the statement did not fall within any exception to the hearsay rule, including California's declaration against interest exception. Even if this were the case, and a due process violation occurred, in order to obtain habeas relief on the of such an evidentiary error, petitioner must show prejudice under Brecht. Dillard v. Roe, 244 F.3d 758, 767, n. 7 (9th Cir.2001) (quoting Brecht, 507 U.S. at 623, 113 S.Ct. 1710). As explained above, petitioner has not established that admission of Owen's statement about the booking sheet had a substantial and injurious effect or influence in determining the jury's verdict. Therefore, petitioner cannot establish that he is entitled to habeas relief on his due process claim.

12. Sentencing Claim

Petitioner contends that his sentence violates his right to due process because the trial court did not prove beyond a reasonable doubt that his prior convictions qualified as "strikes" under California's "three strikes" law. Amend Pet. at 3-4. Specifically, petitioner argues that his two prior convictions, in 1993 and 1995, did not qualify as strikes because he was only sentenced to probation and not to a term in prison. Id. at 3-4, Brief attached to Petition at 4-6.

The federal right to due process does require, however, that every element of a sentence enhancement be proven beyond a reasonable doubt. See Garcia v. Carey, 395 F.3d 1099, 1102 (9th Cir.2005). Here, the record reflects ample evidence that petitioner has four prior serious felony strike convictions under California law. Based on certified records of petitioner's prior convictions and the testimony of a fingerprint expert, the trial court found that petitioner had suffered the following four prior convictions: 1993 convictions for attempted robbery (Cal.Penal Code §§ 211, 664) and two counts of felony assault with personal use of a deadly weapon (Cal.Penal Code §§ 245(a)(!), 1192.7(c)(23)), and a 1995 conviction for robbery (Cal. Penal Codes § 211). RT at 2583-91; CT at 1032-1044-45. The trial court found that all four of these convictions qualified as strikes under California's three strikes law (Cal.Penal Code §§ 667(b)-(i) and 1170.12). RT at 2593-94; CT 1109. Furthermore, at petitioner's entry of plea in 1993, he admitted that the attempted robbery and two counts of assault with a deadly weapon constituted "serious" felony convictions under California Penal Code § 1192.7(c), which necessarily qualifies them as strikes. CT at 1032, 1044-45; see Cal. Pen.Code §§ 1192.7(c), 667, 1170.12.25 When petitioner later pled guilty to robbery in 1995, he again admitted that the foregoing previous convictions (from 1993) constituted "strike" convictions. CT at 1093-95, 1097-99.

The fact that petitioner received probation did not preclude them from qualifying as strikes under California law. To begin with, respondent argues, correctly, that the question of whether petitioner's prior convictions qualify as "strikes" under California's three strikes law is a question of state law. This court is bound by the California Supreme Court's rejection of petitioner's claim to the extent it amounts to a ruling that petitioner's prior convictions qualify as strikes as a matter of state law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). In any event, petitioner's prior convictions did in fact qualify as strikes under California law. Petitioner indicates, correctly, that assault with a deadly weapon is a "wobbler" offense, i.e. it can be either a felony or a misdemeanor, and that it is considered to be a misdemeanor if the defendant receives "summary probation" at the time of sentencing. See Cal. Pen. Code § 17(b). In this case, however, petitioner was placed on felony probation, not summary probation, on his two assault with a deadly weapon convictions. CT. at 1033. As a result, the convictions were felonies, not misdemeanors, that qualified as serious "strike" felonies under California law. See People v. Balderas, 41 Cal.3d 144, 203, 222 Cal.Rptr. 184, 711 P.2d 480 (1985); Cal. Pen.Code § 1192.7(c)(23). Furthermore, petitioner's two other prior convictions, for robbery and attempted robbery, are not "wobblers," but are strictly felony convictions. See Cal. Pen.Code § 213. Petitioner cites no authority, nor is this court aware of any, providing that petitioner's receiving probation for his robbery and attempted robbery convictions preclude them from qualifying as strikes.

In sum, there was sufficient evidence upon which the trial could find beyond a reasonable doubt that petitioner's prior convictions qualified as "strikes" under California law. Accordingly, petitioner is not entitled to habeas relief on this claim.

CONCLUSION

In light of the foregoing, the petition for a writ of habeas corpus is DENIED as to petitioner's convictions for theft by false pretenses of Nicholas Brayevich, attempting to dissuade Nicholas Brayevich from testifying, and credit card forgery with respect to Wilbur Johnson, and escape from a county jail. Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to rule on whether a petitioner is entitled to a certificate of appealability in the same order in which the petition is denied. Petitioner has failed to make a substantial showing that his claims amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would find the denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Consequently, no certificate of appealability is warranted in this case.

The petition for a writ of habeas corpus is GRANTED as to petitioner's conviction for grand theft from Wilbur Johnson; the conviction and the portion of petitioner's sentence based thereon are VACATED. Within 60 days of the date this order is filed, the respondent shall seek a recalculated sentence from the state superior court, or shall appeal this matter to the United States Court of Appeals for the Ninth Circuit.26 Petitioner's continued custody is lawful under his remaining convictions.

IT IS SO ORDERED.