Petition for Writ of Certiorari — Melissa Dean-Baumann, Petitioner v. Janelle Espinoza, Warden

Supreme Court briefJan 5, 2021

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No.

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________________________

MELISSA DEAN-BAUMANN

Petitioner,

JANELLE ESPINOZA, Warden,

Respondent.

_____________________________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________

FAY ARFA, A LAW CORPORATION

Fay Arfa, Attorney - SBN 100143

10100 Santa Monica Blvd., #300

Los Angeles, CA 90067

T: (310) 841-6805- F: (310) 841-0817

info@bestdefender.com

Attorney for Petitioner

MELISSA DEAN-BAUMANN

QUESTIONS PRESENTED

This case presents questions about the AEDPA:

Do the California Courts’ Denials Bar DeanBaumann’s Federal Claims? ; Does Martinez Apply to

Ineffective Assistance of Trial and Appellate Counsel

Claims Raised in a State Habeas Petition?

II.

Did the Trial Court’s Failure to Instruct on the

Lesser Included Misdemeanor Offense Deny DeanBaumann Her Federal and State Constitutional Due

Process Rights?

III.

Should Dean-Baumann Get an Evidentiary Hearing

on Her Claims? ; Did the Courts Unreasonably Refuse

to Hold an Evidentiary Hearing?

TOPICAL INDEX

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . 4

REASONS TO GRANT CERTIORARI . . . . . . . . . . . . . . . . . . . 8

THE CALIFORNIA COURTS’ DENIALS DID NOT

BAR DEAN-BAUMANN’S FEDERAL CLAIMS

BECAUSE MARTINEZ APPLIES TO INEFFECTIVE

ASSISTANCE OF TRIAL AND APPELLATE

COUNSEL CLAIMS RAISED IN A STATE HABEAS

PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Based on Martinez, Dean-Baumann Has Shown

Cause and Prejudice for Any Default as to

Claims 1, 2, 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Martinez applies to Post-Conviction Ineffective

Assistance of Appellate Counsel Claims . . . . . 12

A COA Should Be Granted . . . . . . . . . . . . . . . . . . 15

Dean-Baumann Has Shown, as to Claim 3, a

Miscarriage of Justice . . . . . . . . . . . . . . . . . . . . . 16

II.

THE TRIAL COURT’S FAILURE TO INSTRUCT ON

THE LESSER INCLUDED MISDEMEANOR

OFFENSE DENIED DEAN-BAUMANN HER

FEDERAL AND STATE CONSTITUTIONAL DUE

PROCESS RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

III.

THE COURTS’ UNREASONABLE REFUSALS TO

HOLD A FEDERAL EVIDENTIARY HEARING,

ENTITLES DEAN-BAUMANN TO AN EVIDENTIARY

HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

APPENDIX

A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ninth Circuit Order

B . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.S. District Court Judgment

U.S. District Court Order Accepting R&R

U.S. District Court R&R

C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CA Supreme Court Order

CA Court of Appeal Decision

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Barefoot v. Estelle, 463 U.S. 880 (1983) . . . . . . . . . . . . . . . . . . . . 26

Bashor v. Risley, 730 F.2d 1228 (9th Cir. 1984) . . . . . . . . . . . 7, 20

Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002) . . . . . . . . . 7, 21

California v. Trombetta, 467 U.S. 479 (1984) . . . . . . . . . . 7, 12, 21

Clark v. Brown, 450 F.3d 898 (9th Cir. 2006) . . . . . . . . . . . . . 7, 21

Coleman v. Thompson, 501 U.S. 722 (1991) . . . . . . . . . 7, 9, 14, 15

Conde v. Henry, 198 F.3d 734 (9th Cir. 1999) . . . . . . . . . . . . . 7, 22

Cullen v. Pinholster, 563 U.S. 170 (2001) . . . . . . . . . . . . . 7, 24, 25

Douglas [v. California, 372 U.S. 353] (1963) . . . . . . . . . . . 7, 12, 14

Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005) . . . . . . . . . . . 7, 25

Engle v. Isaac, 456 U.S. 107 (1982) . . . . . . . . . . . . . . . . . . . . . 7, 21

Estelle v. McGuire, 502 U.S. 62 (1991) . . . . . . . . . . . . . . . . . . . 7, 21

Evitts v. Lucey, 469 U.S. 387 (1985) . . . . . . . . . . . . . . . . . . . . . 7, 14

Gideon v. Wainwright, 372 U.S. 335 (1963) . . . . . . . . . . . . . . 7, 13

Gutierrez v. Griggs, 695 F.2d 1195 (9th Cir. 1983) . . . . . . . . . 7, 21

Halbert v. Michigan, 545 U.S. 605 . . . . . . . . . . . . . . . . . . . . . . 7, 12

Harrington v. Richter, 562 U.S. 86 (2011) . . . . . . . . . . . . . . . . 8, 25

James v. Reese, 546 F.2d 325 (9th Cir. 1976) . . . . . . . . . . . . . 8, 20

Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2011) . . . . . . . . . . . 8, 25

Martinez v. Ryan, 566 U.S. 1 (2012) . . . . . . . . . . . . . . . . . . passim

Murray v. Carrier, 477 U.S. 478 (1986) . . . . . . . . . . . . . . . 8, 10, 18

Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003) . . . . . . . . . . . 8, 24

Powell v. Alabama, 287 U.S. 45 (1932) . . . . . . . . . . . . . . . . . . 8, 14

Schlup v. Delo, 513 U.S. 298 (1995) . . . . . . . . . . . . . . . . . . . . . 8, 18

Slack v. McDaniel, 529 U.S. 473 (2000) . . . . . . . . . . . . . . . . . . 8, 26

Slovik v. Yates, 556 F.3d 747 (9th Cir. 2009) . . . . . . . . . . . . . . 4, 8

Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000) . . . . . . . . . . 8, 20, 21

Southern Ct. 2582, 162 L. Ed. 2d 552 (2005) . . . . . . . . . . . . . . . . . 7

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) . . . . . . . . . . . 8, 24

Trevino v. Thaler, 569 U.S. 413 (2013) . . . . . . . . . . . . . . . 8, 11, 17

Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995) . . . . . . . . . . . 8, 20

Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004) . . . . . . . . 9, 25

Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998) . . . . . . . . 9, 20

STATE CASES

In re Clark, 5 Cal.4th 750 (1993) . . . . . . . . . . . . . . . . . . . . . . . 7, 18

In re Huddleston, 71 Cal.2d 1031 (1969) . . . . . . . . . . . . . . . . . 8, 18

In re Sanders, 21 Cal.4th 697 (1999) . . . . . . . . . . . . . . . . . . . . 8, 17

In re Swain, 34 Cal.2d 300 (1949) . . . . . . . . . . . . . . . . . . . . . . 8, 17

People v. Lopez, 42 Cal. 4th 960 (2008) . . . . . . . . . . . . . . . 8, 11, 13

People v. Pope, 23 Cal.3d 412 (1979) . . . . . . . . . . . . . . . . . 8, 22, 23

FEDERAL STATUTES

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

STATE STATUTES

Cal. Penal Code § 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

Cal. Penal Code § 191.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

Cal. Penal Code § 273a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

Cal. Veh. Code § 23153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

No.

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

MELISSA DEAN-BAUMANN

Petitioner,

JANEL ESPINOZA, Warden,

Respondent.

_______________________________________________________

Petitioner, MELISSA DEAN-BAUMANN, petitions for a

writ of certiorari to review the United States Court of Appeals for

the Ninth Circuit’s October 28, 2020 Order denying DeanBaumann’s request for a certificate of appealablity. (Appendix A)

OPINION BELOW

On October 28, 2020, the Ninth Circuit Court of Appeals

denied Dean-Baumann’s request for a certificate of appealablity.

(Appendix A)

JURISDICTION

The jurisdiction of this Court is 28 U.S.C. § 2254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amends. V, VI, XIV; 28 U.S.C.§ 2254.

STATEMENT OF THE CASE

On November 20, 2014, a Riverside County Superior Court

jury convicted Dean-Baumann of second-degree murder (Cal.

Penal Code § 187(a); Ct. 1), vehicular manslaughter with gross

negligence while intoxicated (Cal. Penal Code § 191.5 (a); Ct. 2);

driving under the influence and causing injury (Cal. Veh. Code §

23153(a); Ct. 3); driving with .08% or higher blood alcohol content

and causing injury (Cal. Veh. Code § 23153(b); Ct. 4); and child

endangerment intoxicated (Cal. Penal Code § 273a(a)(5).

The jury also found several sentence enhancements to be

true.

On January 23, 2015, the trial court sentenced DeanBaumann to fifteen years to life in state prison.

Dean-Baumann appealed her convictions and sentence. The

California Court of Appeal (CCA) struck the great bodily injury

enhancement for count 2 and affirmed the judgment as modified.

Dean-Baumann filed a petition for review in the California

Supreme Court (CSC). The CSC denied the petition on July 27,

2016.

On October 20, 2017, Dean-Baumann filed a habeas corpus

petition in the CCA. On October 26, 2017, the court of appeal

denied the petition without prejudice to Dean-Baumann refiling it

in Superior Court.

On November 3, 2017, Dean-Baumann filed a habeas

corpus petition in Riverside County Superior Court (RCSC). The

RCSC denied the petition in a reasoned decision on March 7,

2018.

On April 3, 2018, Dean-Baumann filed a habeas corpus

petition in the CCA. The CCA denied the petition in a reasoned

decision on April 11, 2018. On April 13, 2018, Dean-Baumann

filed a petition for review in the CSC. The CSC denied the

petition on June 13, 2018.

Dean-Baumann filed a habeas petition in the federal

district court. The federal district court denied the petition. (No.

5:17-cv-02187-JAK-SS)

On October 28, 2020, the Ninth Circuit denied DeanBaumann’s request for a Certificate of Appealability. (Appendix

FACTUAL AND PROCEDURAL BACKGROUND1

In May 2003 a police officer stopped DeanBaumann after he observed her vehicle make a right

turn and then a U-turn before it turned left, drove

over a sidewalk, through a dirt field, and stopped

behind a house. When the officer explained why he

stopped her, Dean-Baumann stated she was going

home and this was the quickest route. The officer

smelled alcohol on her breath and noticed she had

bloodshot and watery eyes. She also had slurred

speech and a dry mouth. Dean-Baumann denied

drinking. However, she did not perform well on field

sobriety tests. She was cooperative, but giggly during

the field sobriety tests. The results of two preliminary

alcohol sensor tests (breathalyzer) were 0.14 and

0.13. Dean-Baumann was arrested and cited for

driving under the influence. Later, in 2009, DeanBaumann was required to attend drug and alcohol

counseling sessions regarding the impact of driving

under the influence.

On September 10, 2012, Dean-Baumann's

boyfriend called 911 because he suspected she was

trying to pick up their child from school after she had

been drinking. Dean-Baumann knocked the phone

from his hand as he was calling and she left with the

child in the car. Her boyfriend told her not to drink

and drive with their children in the vehicle.

On December 13, 2012, at approximately 12:30

p.m., Dean-Baumann ran a red light at the

intersection of McCall Boulevard and Encanto Drive

The facts, taken from the California Court of Appeal’s

written decision on direct review are presumed correct. 28 U.S.C.

§ 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir.

2009).

in Menifee, California. She drove her Chevrolet Tahoe

into the intersection at a high rate of speed and

struck a Saturn driving the opposite direction, which

was turning left onto Encanto Drive. A witness, who

was in the left turn lane behind the Saturn, saw the

Tahoe come toward the intersection without slowing

down. The driver of the Tahoe did not appear to be

paying attention to the road. She had one hand on the

steering wheel in the 12 o'clock position as she looked

toward the right. She appeared to be trying to find

something or grab something with her other hand.

Donald F. was taking his 86-year-old wife,

Phyllis F., to the hairdresser and turned left on a

green turn signal from McCall Boulevard onto

Encanto Drive. As he did so, his vehicle was hit on

the passenger side by Dean-Baumann's vehicle.

Phyllis F. died from blunt impact injuries to the torso

as a result of the collision. Donald F. was taken to a

trauma center. He sustained cuts, bruises and a

concussion.

After the collision, a witness saw DeanBaumann raise her hands in the air. It looked like

she was talking or yelling at someone in the back of

the vehicle. Another witness saw the driver of the

Tahoe exit her vehicle crying and holding a child.

Dean-Baumann's boyfriend, went to the scene to pick

up the child.

A community service officer of the Riverside

County Sheriffs Department responded to the traffic

collision. The officer found an elderly male in the

driver's seat and an elderly female in the front

passenger seat. Both were injured. The male was

bleeding from his head. The female had a large gash

wound to the skull. She was unresponsive and her

head draped forward. The male was alert, but

agitated.

When the responding officer initially contacted

Dean-Baumann, she was crying and appeared

hysterical. Another officer later contacted Dean5

Baumann at the scene to discuss the accident. DeanBaumann said she and her daughter had come from

Fallbrook that morning to purchase a puppy and they

were on their way home when the accident occurred.

She denied drinking or taking medication before the

accident other than medication for acid reflux.

The officer observed her eyes were bloodshot

and watery, her speech was slurred and the odor of

alcohol emanated from her breath and person. He

advised her the passenger in the vehicle she hit was

dead at the scene. During field sobriety tests, as

Donald F. was being loaded into an ambulance, DeanBaumann laughed and talked about how hard the

tests were and how they were like games children

play.

Dean-Baumann's blood alcohol level was found

to be 0.16 percent, which is twice the level at which a

person is impaired for driving. Since the sample was

drawn more than an hour after the accident, her

blood alcohol level at the time of the accident was

likely higher than 0.17 percent. She also tested

positive for methamphetamine and marijuana. The

amount of methamphetamine found in her blood was

more than three times the therapeutic level. The

levels of cannabinoids found in her blood indicated

marijuana use within hours of when the blood was

drawn.

During an inspection of the SUV, an open

empty bottle of vodka was found inside a closed

compartment between the passenger and driver seat

of the SUV under some papers. The vehicle also

smelled of alcohol.

A deputy sheriff for the Riverside County

Sheriffs Department analyzed the crash data

retrieval (CDR) box in the Tahoe. The CDR records

data when it is senses something is about to happen.

Various things can trigger the module such as

braking, the start of an impact, deployment of an

airbag or a combination of things. The module records

information prior to the event based on an algorithm

from the time the device is enabled, i.e., algorithm

enabled (AE). In this case, the data showed the

vehicle was traveling 59 miles per hour five seconds

before AE and decelerated to 53 miles per hour two

seconds before AE. One second before AE, the speed

was 29 miles per hour. That amount of deceleration

could not occur with braking, but instead would occur

if the vehicle struck something.

Dean-Baumann presented evidence she

purchased a puppy at a residence

approximately three miles from the intersection

where the accident occurred. The person who sold the

puppy to Dean-Baumann did not notice she was

under the influence of alcohol.

REASONS TO GRANT CERTIORARI

THE CALIFORNIA COURTS’ DENIALS DID

NOT BAR DEAN-BAUMANN’S FEDERAL

CLAIMS BECAUSE MARTINEZ APPLIES TO

INEFFECTIVE ASSISTANCE OF TRIAL AND

APPELLATE COUNSEL CLAIMS RAISED IN A

STATE HABEAS PETITION;

Introduction

In grounds one through six, Dean-Baumann raised six

substantive claims.2 All the claims incorporated ineffective

assistance of counsel claims. (“IAC”). The RR found DeanBaumann’s claims 1 - 6 procedurally barred. RR 23. The RR found

that, when a prisoner defaults a claim by violating a state

procedural rule, that would constitute adequate and independent

Dean-Baumann raised the following claims in her habeas

petition to the CCA:

I. Resentencing is Required Because the Prosecution

Failed to Plead and Prove the 1203.09 Enhancement; Trial and

Appellate Counsel Rendered IAC; II. Trial Counsel Rendered IAC

by Failing to Present a Forensic Expert Toxicologist; III. The

Trial Court Deprived Dean-Baumann of Due Process and a Fair

Trial by Admitting Inflammatory Evidence; Appellate Counsel

Rendered IAC; IV. The Trial Court Deprived Dean-Baumann of

Due Process and a Fair Trial by Issuing a Faulty Character

Evidence Instruction; Trial and Appellate Counsel Rendered IAC;

V. The Prosecutor Committed Prejudicial Misconduct During

Closing Argument; Trial and Appellate Counsel Rendered IAC;

VI. The Cumulative Effect of the Errors Deprived DeanBaumann of Due Process and a Fair Trial.

grounds to bar direct review in the United States Supreme Court,

she may not raise the claim in federal habeas corpus absent a

showing of cause and prejudice or actual innocence. RR 16.

Dean-Baumann agrees that Coleman v. Thompson held

that a state prisoner who fails to comply with the State's

procedural requirements in presenting his claims is barred by the

adequate and independent state ground doctrine from obtaining a

writ of habeas corpus in federal court. Coleman v. Thompson, 501

U.S. 722 (1991) ("Just as in those cases in which a state prisoner

fails to exhaust state remedies, a habeas petitioner who has failed

to meet the State's procedural requirements for presenting his

federal claims has deprived the state courts of an opportunity to

address those claims in the first instance.")

Where such a procedural default constitutes an adequate

and independent state ground for denial of habeas corpus, the

default may be excused only if "a constitutional violation has

probably resulted in the conviction of one who is actually

innocent," or if the prisoner demonstrates cause for the default

and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478,

496 (1986).

Based on Martinez, Dean-Baumann Has Shown

Cause and Prejudice for Any Default as to

Claims 1, 2, 4, 5

To obtain federal review of her claims, Dean-Baumann

must show cause and prejudice for the default. In Claims 1, 2, 4

and 5, Dean-Baumann raised issues of ineffective assistance of

trial and appellate counsel. In Martinez v. Ryan, 566 U.S. 1

(2012), the Supreme Court held that cause, excusing procedural

default, is found where a petitioner makes a claim of ineffective

assistance of trial and/or appellate counsel.

Martinez applies where: (1) the claim was "substantial”; (2)

state law requires the claim be brought in an initial-review

collateral proceedings; (3) there was no counsel or only ineffective

counsel during the state collateral review proceeding; and (4) the

state collateral proceeding was the "initial" review proceeding for

the claim. Trevino v. Thaler, 569 U.S. 413, 423 (2013)

(discussing Martinez, at 11).

The RR finds Martinez does not extend to procedurally

defaulted claims of ineffective assistance of trial and/or appellate

counsel. RR 18 n. 6. Dean-Baumann disagrees. Martinez applies

where the state's "procedural framework, by reason of its design

and operation, makes it highly unlikely in a typical case that a

defendant will have a meaningful opportunity to raise the claim

of ineffective assistance of trial counsel on direct appeal." Id. at

423.

The Martinez exception applies to California petitioners

because, under California law, "except in those rare instances

where there is no conceivable tactical purpose for counsel's

actions, claims of ineffective assistance of counsel should be raised

on habeas corpus, not on direct appeal." People v. Lopez, 42 Cal.

4th 960, 972 (2008). (Italics added.)

The RR believes that Martinez applies to ineffective

assistance of state habeas counsel, not to claims of trial and

appellate counsel. RR 21. Dean-Baumann disagrees. “Where, as

here, the initial-review collateral proceeding is the first

designated proceeding for a prisoner to raise a claim of ineffective

assistance at trial, the collateral proceeding is in many ways the

equivalent of a prisoner's direct appeal as to the

ineffective-assistance claim. This is because the state habeas

court ‘looks to the merits of the clai[m]’ of ineffective assistance,

no other court has addressed the claim, and ‘defendants pursuing

first-tier review . . . are generally ill equipped to represent

themselves’ because they do not have a brief from counsel or an

opinion of the court addressing their claim of error. Halbert v.

Michigan, 545 U.S. 605, 617, 125 S. Ct. 2582, 162 L. Ed. 2d 552

(2005); see Douglas [v. California, 372 U.S. 353] 357-358 (1963).)”

Martinez v. Ryan, 566 U.S. at 11.

Citing Davila v. Davis, 137 S. Ct. 2058 (2017), the RR finds

that Martinez did not apply to a claim that post-conviction

counsel ineffectively failed to exhaust a claim of ineffective

assistance of appellate counsel. RR 18. Not so. Davila v. Davis

does not apply to Dean-Baumann’s case because Dean-Baumann

does not challenge her post-conviction habeas counsel’s ineffective

assistance. Dean-Baumann challenges the ineffective assistance

of her trial and appellate counsel. Ineffective claims of both trial

and appellate counsel generally cannot be presented until after

the termination of direct appeal and should be raised in a petition

for writ of habeas corpus. People v. Lopez, 42 Cal. 4th at 972.

Martinez applies to Post-Conviction Ineffective

Assistance of Appellate Counsel Claims

Neither Martinez nor Davila affect Dean-Baumann’s right

to challenge not only trial counsel’s assistance, but also appellate

counsel’s assistance on direct appeal. The Sixth Amendment right

to effective counsel applies equally to both trial and appellate

counsel. Compare Gideon v. Wainwright, 372 U.S. 335, 344 (1963)

(trial counsel) ("[A]ny person haled into court, who is too poor to

hire a lawyer, cannot be assured a fair trial unless counsel is

provided for him."), and Powell v. Alabama, 287 U.S. 45, 69

(1932) (trial counsel) ("[The defendant] requires the guiding hand

of counsel at every step in the proceedings against him. Without

it, though he be not guilty, he faces the danger of conviction

because he does not know how to establish his innocence."), with

Evitts v. Lucey, 469 U.S. 387, 396 (1985) (appellate counsel) ("A

first appeal as of right . . . is not adjudicated in accord with due

process of law if the appellant does not have the effective

assistance of an attorney."), and Douglas v. California, 372 U.S.

at 357 (appellate counsel) ("[W]here the merits of the one and

only appeal an indigent has as of right are decided without

benefit of counsel, we think an unconstitutional line has been

drawn between rich and poor.")

Nothing suggests that the Sixth Amendment right to

effective counsel is weaker or less important for appellate counsel

than for trial counsel. Coleman made clear that the dividing line

between cases in which state-court procedural default should, or

should not, be forgiven was the line between constitutionally

ineffective and merely negligent counsel: "Where a petitioner

defaults a claim as a result of the denial of the right to effective

assistance of counsel, the State, which is responsible for the

denial as a constitutional matter, must bear the cost of any

resulting default and the harm to state interests that federal

habeas review entails." Coleman, 501 U.S. at 754.

The court in Coleman did not distinguish between

ineffective assistance by trial and appellate counsel. Even

Martinez emphasized the importance of effective appellate

counsel by stating, “. . . . [A]n attorney's errors during an appeal

on direct review may provide cause to excuse a procedural default;

for if the attorney appointed by the State to pursue the direct

appeal is ineffective, the prisoner has been denied fair process and

the opportunity to comply with the State's procedures and obtain

an adjudication on the merits of his claims.” Martinez, at 2, 10-11.

(Italics added.)

Similarly, Davila v. Davis, ___ U.S. ___, 137 S. Ct. at 2068

held that ineffective assistance of appellate counsel claims must

be heard in collateral proceedings, where counsel is not

constitutionally guaranteed.

A COA Should Be Granted

In Claims 1, 2, 4, 5, Dean-Baumann raised substantial

claims challenging trial counsel’s ineffective assistance. As to

Claim 1, Dean-Baumann alleged that trial rendered IAC by

concurring in the trial court’s erroneous failure to exercise its

sentencing discretion. In Claim 2, Dean-Baumann alleged trial

counsel rendered IAC by failing to present a forensic expert

toxicologist. In Claim 4, Dean-Baumann alleged trial counsel

failed to object to the trial court’s defective instructions. As to

Claim 5, Dean-Baumann alleged that trial counsel rendered IAC

by failing to object to the prosecutor’s misconduct during closing.

Dean-Baumann brought Claims 1, 2, 4, 5 in the

initial-review collateral proceedings. Dean-Baumann did not have

counsel during the state collateral review proceeding; and the

state collateral proceeding was the "initial" review proceeding for

the claim. See, Trevino v. Thaler, 569 U.S. at 423.

(discussing Martinez, at 11)

Dean-Baumann Has Shown, as to Claim 3, a

Miscarriage of Justice

As to Claim 3,3 the RR finds that Dean-Baumann has failed

to establish cause under Martinez. RR 20. Dean-Baumann

disagrees. Dean-Baumann could not have known about the

claims presented in her state petition because the unexhausted

issues involve the ineffective assistance of trial and appellate

counsel.

The RR overlooks that, unlike appeals or federal habeas

corpus proceedings which have specific time limits, no prescribed

fixed time period exists during which to seek state habeas corpus

relief in a noncapital case. In re Sanders, 21 Cal.4th 697, 703

(1999); In re Swain, 34 Cal.2d 300, 304 (1949).

Neither the Legislature nor the California Supreme Court

has established an express time limit within which a petitioner

must seek habeas corpus relief. In re Huddleston, 71 Cal.2d 1031,

1034 (1969). The general rule requires only that a petition be filed

In Claim 3, Dean-Baumann claimed that appellant counsel

rendered IAC by failing to raise an issue involving the admission

of inflammatory evidence.

“as promptly as the circumstances allow.” In re Clark, 5 Cal.4th

750, 765, fn. 5 (1993).

If, as the RR finds, Dean-Baumann had brought the claims

regarding trial counsel sooner, any subsequent petition raising

ineffective assistance of appellate counsel could have been

construed as an improper successive petition. See, In re Clark, 5

Cal.4th 750.

The RR finds that Dean-Baumann does not qualify for relief

under the miscarriage-of-justice exception because she has failed

to prove her actual or factual innocence. See Schlup v. Delo, 513

U.S. 298, 326-27 (1995); Murray v. Carrier, 477 U.S. at 496. RR

22. The RR finds that Dean-Baumann challenges only procedural

and instructional error and that she does not claim actual or

factual innocence. RR 23.

Dean-Baumann disagrees. She claims actual and/or factual

innocence of the charges and challenges the admission of prior

incidents as the cause of her false conviction. Dean-Baumann’s

claims fall within an exception to the procedural bar against

successive or untimely petitions. Dean-Baumann’ claims

demonstrate that a “‘fundamental miscarriage of justice’” will

have occurred because (1) an error of constitutional magnitude

led to a trial that was so fundamentally unfair that absent the

error no reasonable judge or jury would have convicted the

petitioner; and (2) Dean-Baumann is actually innocent of the

crime or crimes of which she was convicted.

II.

THE TRIAL COURT’S FAILURE TO INSTRUCT

ON THE LESSER INCLUDED MISDEMEANOR

OFFENSE DENIED DEAN-BAUMANN HER

FEDERAL AND STATE CONSTITUTIONAL

DUE PROCESS RIGHTS

The trial court erred in failing to instruct, sua sponte, on

the lesser included offense of misdemeanor child

abuse/endangerment. The RR finds that, because no clearly

established Supreme Court precedent exists on lesser offense

instructions in noncapital cases, the CCA’s rejection of the claim

could have been contrary to, or an unreasonable application of

controlling precedent. RR 27.

Dean-Baumann disagrees. In Windham v. Merkle, 163 F.3d

1092, 1105-06 (9th Cir. 1998), the Ninth Circuit stated, "Under

the law of this circuit, the failure of a state trial court to instruct

on lesser included offenses in a noncapital case does not present a

federal constitutional question.” See Turner v. Marshall, 63 F.3d

807, 819 (9th Cir. 1995); see also Bashor v. Risley, 730 F.2d 1228

(9th Cir. 1984) (Generally the "[f]ailure of a state court to instruct

on a lesser offense fails to present a federal constitutional

question and will not be considered in a federal habeas corpus

proceeding.") Bashor, 730 F.2d at 1240, quoting James v. Reese,

546 F.2d 325, 327 (9th Cir. 1976).

The Ninth Circuit later receded from that position in Solis

v. Garcia, 219 F.3d 922 (9th Cir. 2000), where the Court found

"the refusal by a court to instruct a jury on lesser included

offenses, when those offenses are consistent with defendant's

theory of the case, may constitute a cognizable habeas claim"

under clearly established United States Supreme Court

precedent. Solis, 219 F.3d at 929 (emphasis added); see also

Bradley v. Duncan, 315 F.3d 1091, 1098-1101 (9th Cir. 2002)

(finding federal due process violation in a post-AEDPA habeas

case where defendant's request for instruction on the only theory

of defense was denied.)

The RR finds that instructional relief warrants federal

habeas relief only if the instruction violates due process. RR 24.

Dean-Baumann agrees that, generally, a challenge to jury

instructions does not state a federal constitutional claim. Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S.

107, 119 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.

1983).

But Dean-Baumann disagrees because due process requires

that "'criminal defendants be afforded a meaningful opportunity

to present a complete defense.'" Clark v. Brown, 450 F.3d 898, 904

(9th Cir. 2006) (quoting California v. Trombetta, 467 U.S. 479,

485 (1984). The law required the trial court to issue adequate

instructions on the defense theory of the case. Conde v. Henry,

198 F.3d 734, 739 (9th Cir. 1999) (error to deny defendant's

request for instruction on simple kidnapping where such

instruction was supported by the evidence).

The RR finds that no error occurred because defense

counsel made a tactical decision to defend the felony

endangerment charge by arguing that an element had not been

met. RR 29. Dean-Baumann disagrees. The California courts

should have held an evidentiary hearing to allow Dean-Baumann

to call trial counsel as a witness and prove that trial counsel

rendered ineffective assistance. See, e.g., People v. Pope, 23

Cal.3d 412, 426 (1979) (An evidentiary hearing allows trial

counsel to fully describe “his or her reasons for acting or failing to

act in the manner complained of.") (See Argument IV.)

Even if Dean-Baumann drove while impaired with her

child in the Tahoe, became distracted, violated traffic laws and a

fatal accident resulted, other facts supported the issuance of a

lesser included offense. Dean-Baumann drove a hefty, strong

Tahoe, she carefully buckled her child into a properly installed

car seat in the second row of seats. Baumann qualifies for habeas

relief.

A COA should issue

III.

THE COURTS’ UNREASONABLE REFUSALS

TO HOLD A FEDERAL EVIDENTIARY

HEARING, ENTITLES DEAN-BAUMANN TO AN

EVIDENTIARY HEARING

Dean-Baumann sought an evidentiary hearing at every

level of the state habeas proceedings and again in federal court.

(Dkt. 22-12 at 82; 22-14 at 3 of 15, 12 of 15; 22-15 at 19, 90 of 364;

22-19 at 45 of 49) The California courts should have held an

evidentiary hearing to allow Dean-Baumann to call trial counsel

as a witness and prove that trial counsel rendered ineffective

assistance. See, e.g., People v. Pope, 23 Cal.3d at 426 (An

evidentiary hearing allows trial counsel to fully describe “his or

her reasons for acting or failing to act in the manner complained

of.")

Dean-Baumann made a prima facie showing for ineffective

assistance of counsel supported by the record. Assuming the

record and other evidence to be true nothing more was required.

See Cullen v. Pinholster, 563 U.S. 170, 188 (2001); Nunes v.

Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003).

Because no AEDPA deference is due under 2254(d)(2) or

(e)(1) where the state has made an "unreasonable" determination

of the facts, no deference is due in federal court to the state

court’s disputed findings of fact. Taylor v. Maddox, 366 F.3d 992,

1001 (9th Cir. 2004) ("Where a state court makes evidentiary

findings without holding a hearing and giving petitioner an

opportunity to present evidence, such findings clearly result in an

"unreasonable determination" of the facts.").

Because the California courts unreasonably denied DeanBaumann’s claim without holding an evidentiary hearing, this

Court should hold an evidentiary hearing. See Pinholster, 563

U.S. at 183-184 (evidentiary hearing may be proper where §

2254(d) does not preclude habeas relief); Harrington v. Richter,

562 U.S. 86, 86 (2011) (where petitioner satisfies § 2254(d), claim

may be relitigated in federal court); Johnson v. Finn, 665 F.3d

1063, 1069 n.1 (9th Cir. 2011)(where state court decision not

entitled to AEDPA deference, even after Pinholster it was still

proper for district court to hold evidentiary hearing); see also

Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005) (evidentiary

“hearing is required if: ‘(1) [the defendant] has alleged facts that,

if proven, would entitle him to habeas relief, and (2) he did not

receive a full and fair opportunity to develop those facts’”)

(quoting Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)).

CONCLUSION

A certificate of appealability should issue because “(1) ' . . .

jurists of reason would find it debatable whether the district court

was correct in its procedural ruling'; and (2) ' . . . jurists of reason

would find it debatable whether the petition states a valid claim

of the denial of a constitutional right.'" Morris v. Woodford, 229

F.3d at 780.

A COA should also issue under 28 U.S. C. § 2253 because “.

. . reasonable jurists could debate whether (or, . . . agree that) the

petition should have been resolved in a different manner or that

the issues presented were ‘adequate to deserve encouragement to

proceed further.’” Slack v. McDaniel, 529 U.S. 473 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 and n. 4 (1983).)

Certiorari should be granted.

DATED: December 29, 2020

Respectfully submitted,

FAY ARFA, A LAW CORPORATION

/s Fay Arfa

______________________________

Fay Arfa, Attorney for Petitioner

APPENDIX

Case: 19-56005, 10/28/2020, ID: 11874572, DktEntry: 4, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

OCT 28 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MELISSA DEAN-BAUMANN,

Petitioner-Appellant,

JANELLE ESPINOZA,

No.

19-56005

D.C. No. 5:17-cv-02187-JAK-SS

Central District of California,

Riverside

ORDER

Respondent-Appellee.

Before:

W. FLETCHER and R. NELSON, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 3) is denied

because appellant has not shown that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28

U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

APPENDIX A

Case 5:17-cv-02187-JAK-SS Document 31 Filed 08/26/19 Page 1 of 1 Page ID #:4030

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MELISSA DEAN-BAUMANN,

Petitioner,

Case No. EDCV 17-2187 JAK (SS)

JUDGMENT

JANELLE ESPINOZA, Warden,

Respondent.

Pursuant to the Court’s Order Accepting Findings, Conclusions

and Recommendations of United States Magistrate Judge,

IT IS HEREBY ADJUDGED that the above-captioned action is

dismissed with prejudice.

DATED: August 26, 2019

JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 30 Filed 08/26/19 Page 1 of 2 Page ID #:4028

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MELISSA DEAN-BAUMANN,

Case No. EDCV 17-2187 JAK (SS)

Petitioner,

ORDER ACCEPTING FINDINGS,

CONCLUSIONS AND

JANELLE ESPINOZA, Warden,

Respondent.

RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the

Petition,

all

the

records

Recommendation

the

Petitioner’s Objections.

Objections were directed, the Court concurs with and accepts the

findings and conclusions of the Magistrate Judge.

the

portions

and

files

herein,

the

Report

and

United

States

Magistrate

Judge,

and

After having made a de novo determination

the

Report

and

APPENDIX B

Recommendation

which

Case 5:17-cv-02187-JAK-SS Document 30 Filed 08/26/19 Page 2 of 2 Page ID #:4029

IT IS ORDERED that the Petition is denied and Judgment shall

be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this

Order and the Judgment herein on counsel for Petitioner and counsel

for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 26, 2019

JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 1 of 33 Page ID #:3974

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MELISSA DEAN-BAUMANN,

Petitioner,

Case No. EDCV 17-2187 JAK (SS)

REPORT AND RECOMMENDATION OF

JANELLE ESPINOZA, Warden,

Respondent.

UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable

John A. Kronstadt, United States District Judge, pursuant to 28

U.S.C. § 636 and General Order 05-07 of the United States District

Court for the Central District of California.

INTRODUCTION

On October 23, 2017, Melissa Dean-Baumann (“Petitioner”), a

California state prisoner represented by counsel, filed a Petition

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 with an

accompanying Memorandum of Points and Authorities (“Pet. Mem.”).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 2 of 33 Page ID #:3975

(Dkt. No. 1).

On October 29, 2018, Respondent filed an Answer to

the

with

Authorities (“Ans. Mem.”).

lodged relevant portions of the record from Petitioner’s state

court proceedings, including a two-volume copy of the Clerk’s

Transcript

Transcript (“RT”).

Petitioner filed a Reply. (Dkt. No. 26). For the reasons discussed

below, it is recommended that the Petition be DENIED and this

action be DISMISSED with prejudice.

Petition

(“CT”)

accompanying

and

Memorandum

(Dkt. No. 21).

four-volume

Points

and

Respondent has also

copy

(Dkt. Nos. 11, 22).

the

Reporter’s

On January 24, 2019,

II.

PRIOR PROCEEDINGS

On November 20, 2014, a Riverside County Superior Court jury

convicted

violation of California Penal Code (“P.C.”) 187(a) (count 1), one

count

intoxicated in violation of P.C. § 191.5(a) (count 2), one count

of driving under the influence and causing injury in violation of

California Vehicle Code (“Cal. Veh. C.”) § 23153(a) (count 3), one

count of driving with .08% or higher blood alcohol content and

causing injury in violation of Cal. Veh. C. § 23153(b) (count 4),

and one count of child endangerment in violation of P.C. § 273a(a)

(count 5), and the jury also found several sentence enhancements

to be true.

trial court sentenced Petitioner to fifteen years to life in state

prison.

Petitioner

vehicular

one

count

manslaughter

with

(CT 281-91; RT 767-73).

(CT 430-32, 457-62; RT 789-92).

APPENDIX B

second-degree

gross

murder

negligence

while

On January 23, 2015, the

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 3 of 33 Page ID #:3976

Petitioner

appealed

her

convictions

and

sentence

the

California Court of Appeal (4th App. Dist., Div. 1), which struck

the great bodily injury enhancement for count 2 and affirmed the

judgment as modified.

a petition for review in the California Supreme Court, which denied

the petition on July 27, 2016.

(Lodgments 1, 11-13).

Petitioner next filed

(Lodgments 2-3).

On October 20, 2017, Petitioner filed a habeas corpus petition

in the California Court of Appeal (4th App. Dist., Div. 1). On

October 26, 2017, the court of appeal denied the petition without

prejudice to Petitioner refiling it in Superior Court.

4-5).

(Lodgments

On November 3, 2017, Petitioner filed a habeas corpus petition

in Riverside County Superior Court, which denied the petition in a

reasoned decision on March 7, 2018.

17, Exh. F).

petition in the California Court of Appeal (4th App. Dist., Div.

1), which denied the petition in a reasoned decision on April 11,

2018.

petition for review in the California Supreme Court, which denied

the petition on June 13, 2018.

(Lodgments 6, 14-16; Lodgment

On April 3, 2018, Petitioner filed a habeas corpus

(Lodgments 17-18).

On April 13, 2018, Petitioner filed a

(Lodgments 19-22).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 4 of 33 Page ID #:3977

III.

FACTUAL BACKGROUND

The

following

facts,

taken

from

the

California

Court

Appeal’s written decision on direct review, have not been rebutted

with clear and convincing evidence and must, therefore, be presumed

correct.

749 n.1 (9th Cir. 2009).

28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747,

In May 2003 a police officer stopped [Petitioner]

after he observed her vehicle make a right turn and then

a U-turn before it turned left, drove over a sidewalk,

through a dirt field, and stopped behind a house.

the officer explained why he stopped her, [Petitioner]

stated she was going home and this was the quickest

route.

noticed she had bloodshot and watery eyes.

slurred speech and a dry mouth.

drinking.

sobriety tests.

the field sobriety tests.

alcohol sensor tests (breathalyzer) were 0.14 and 0.13.

[Petitioner] was arrested and cited for driving under

the influence. Later, in 2009, [Petitioner] was required

to attend drug and alcohol counseling sessions regarding

the impact of driving under the influence.

When

The officer smelled alcohol on her breath and

She also had

[Petitioner] denied

However, she did not perform well on field

She was cooperative, but giggly during

The results of two preliminary

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 5 of 33 Page ID #:3978

September

10,

2012,

[Petitioner’s]

boyfriend

called 911 because he suspected she was trying to pick

up their child from school after she had been drinking.

[Petitioner] knocked the phone from his hand as he was

calling and she left with the child in the car.

boyfriend told her not to drink and drive with their

children in the vehicle.

Her

On December 13, 2012, at approximately 12:30 p.m.,

[Petitioner] ran a red light at the intersection of

McCall

California.

intersection at a high rate of speed and struck a Saturn

driving the opposite direction, which was turning left

onto Encanto Drive.

lane behind the Saturn, saw the Tahoe come toward the

intersection without slowing down.

Tahoe did not appear to be paying attention to the road.

She had one hand on the steering wheel in the 12 o’clock

position as she looked toward the right.

to be trying to find something or grab something with

her other hand.

Boulevard

and

Encanto

Drive

Menifee,

She drove her Chevrolet Tahoe into the

A witness, who was in the left turn

The driver of the

She appeared

Donald F. was taking his 86–year–old wife, Phyllis

F., to the hairdresser and turned left on a green turn

signal from McCall Boulevard onto Encanto Drive.

did so, his vehicle was hit on the passenger side by

APPENDIX B

As he

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 6 of 33 Page ID #:3979

[Petitioner’s] vehicle.

Phyllis F. died from blunt

impact

torso

collision.

sustained cuts, bruises and a concussion.

injuries

the

result

the

Donald F. was taken to a trauma center.

After the collision, a witness saw [Petitioner]

raise her hands in the air.

talking or yelling at someone in the back of the vehicle.

Another witness saw the driver of the Tahoe exit her

vehicle crying and holding a child.

boyfriend, went to the scene to pick up the child.

It looked like she was

[Petitioner’s]

A community service officer of the Riverside County

Sheriff’s Department responded to the traffic collision.

The officer found an elderly male in the driver’s seat

and an elderly female in the front passenger seat.

Both

were injured.

The

female had a large gash wound to the skull.

unresponsive and her head draped forward.

alert, but agitated.

The male was bleeding from his head.

She was

The male was

When

the

responding

officer

initially

contacted

[Petitioner], she was crying and appeared hysterical.

Another officer later contacted [Petitioner] at the scene

to discuss the accident.

daughter had come from Fallbrook that morning to purchase

a puppy and they were on their way home when the accident

occurred.

[Petitioner] said she and her

She denied drinking or taking medication

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 7 of 33 Page ID #:3980

before

reflux.

the

accident

other

than

medication

for

acid

The officer observed her eyes were bloodshot and

watery, her speech was slurred and the odor of alcohol

emanated from her breath and person.

passenger in the vehicle she hit was dead at the scene.

During field sobriety tests, as Donald F. was being

loaded into an ambulance, [Petitioner] laughed and talked

about how hard the tests were and how they were like

games children play.

He advised her the

[Petitioner’s] blood alcohol level was found to be

0.16 percent, which is twice the level at which a person

is impaired for driving.

than an hour after the accident, her blood alcohol level

at the time of the accident was likely higher than 0.17

percent.

and marijuana.

her blood was more than three times the therapeutic

level.

indicated marijuana use within hours of when the blood

was drawn.

Since the sample was drawn more

She also tested positive for methamphetamine

The amount of methamphetamine found in

The levels of cannabinoids found in her blood

During an inspection of the SUV, an open empty

bottle of vodka was found inside a closed compartment

between the passenger and driver seat of the SUV under

some papers.

The vehicle also smelled of alcohol.

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 8 of 33 Page ID #:3981

A deputy sheriff for the Riverside County Sheriff’s

Department analyzed the crash data retrieval (CDR) box

in the Tahoe.

something is about to happen.

the module such as braking, the start of an impact,

deployment of an airbag or a combination of things.

module records information prior to the event based on

an algorithm from the time the device is enabled, i.e.,

algorithm enabled (AE).

the vehicle was traveling 59 miles per hour five seconds

before AE and decelerated to 53 miles per hour two

seconds before AE.

One second before AE, the speed was

29 miles per hour.

That amount of deceleration could

not occur with braking, but instead would occur if the

vehicle struck something.

The CDR records data when it is senses

Various things can trigger

The

In this case, the data showed

[Petitioner]

presented

evidence

she

purchased

puppy at a residence approximately three miles from the

intersection where the accident occurred.

who sold the puppy to [Petitioner] did not notice she

was under the influence of alcohol.

(Lodgment 1 at 3-6).

IV.

APPENDIX B

The person

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 9 of 33 Page ID #:3982

PETITIONER’S CLAIMS

The Petition raises seven grounds for federal habeas relief.

resentencing because the prosecution failed to plead and prove a

P.C. § 1203.09(c) enhancement; and (b) she received ineffective

assistance of counsel when neither trial nor appellate counsel

raised this issue.

Two, Petitioner alleges she received ineffective assistance of

counsel

toxicology expert.

Ground Three, Petitioner asserts: (a) she was denied due process

of law and a fair trial when the trial court admitted inflammatory

evidence

ineffective assistance in not raising this issue.

Pet. Mem. at 31-45).

was denied due process of law and a fair trial when the trial court

gave the jury a faulty character evidence instruction; and (b) she

received ineffective assistance of counsel when neither trial nor

appellate counsel raised this issue.

46-51).

committed prejudicial misconduct during closing argument; and (b)

she received ineffective assistance of counsel when neither trial

nor appellate counsel raised this issue.

at 52-63).

effect of the errors denied her due process of law and a fair

trial.

Petitioner contends she was denied due process of law when the

Ground

One,

when

Petitioner

(a)

she

entitled

(Petition at 5; Pet. Mem. at 12-21).

her

against

contends:

trial

counsel

did

not

present

In Ground

forensic

(Petition at 5-6; Pet. Mem. at 22-30).

her;

and

(b)

appellate

counsel

provided

(Petition at 6;

In Ground Four, Petitioner claims: (a) she

(Petition at 5; Pet. Mem. at

In Ground Five, Petitioner alleges: (a) the prosecutor

(Petition at 6; Pet. Mem.

In Ground Six, Petitioner asserts that the cumulative

(Petition at 6a; Pet. Mem. at 64).

APPENDIX B

In Ground Seven,

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 10 of 33 Page ID #:3983

trial court failed to instruct the jury on the lesser-included

offense of misdemeanor child endangerment.1

Mem. at 65-71).

(Petition at 6a; Pet.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) “bars relitigation of any claim ‘adjudicated on the

merits’ in state court, subject only to the exceptions in §§

2254(d)(1) and (d)(2).”

(2011).

grant habeas relief only if the state court adjudication was

contrary to or an unreasonable application of clearly established

federal law, as determined by the Supreme Court, or was based upon

an unreasonable determination of the facts.

U.S.C. § 2254(d)).

deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the

doubt[.]”

(citations and internal quotation marks omitted).

Harrington v. Richter, 562 U.S. 86, 98

Under AEDPA’s deferential standard, a federal court may

Cullen

Id. at 100 (citing 28

“This is a difficult to meet and highly

Pinholster,

563

U.S.

170,

181

(2011)

Petitioner raised her claims in her petitions for review to

the California Supreme Court, which denied the petitions without

The Petition initially asserted an eighth ground for habeas

corpus relief, alleging the trial court erred in staying instead

of dismissing the punishment for the lesser-included driving under

the influence convictions. (Petition at 6a-6b; Pet. Mem. at 7276).

However, in her Reply, Petitioner withdrew Ground Eight.

(Reply at 36).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 11 of 33 Page ID #:3984

comment or citation to authority.

Court “looks through” the California Supreme Court’s silent denial

to the last reasoned decision, which is presumed to be the basis

for the California Supreme Court’s decision.

138 S. Ct. 1188, 1192 (2018); Ylst v. Nunnemaker, 501 U.S. 797,

803

Therefore, the Court will consider the California Court of Appeal’s

decision on habeas review in addressing Grounds One through Six,

and the California Court of Appeal’s decision on direct review in

addressing Ground Seven.

(2010).

(1991).

That

presumption

(Lodgments 2-3, 19-22).

has

not

The

Wilson v. Sellers,

been

rebutted

here.

Berghuis v. Thompkins, 560 U.S. 370, 380

VI.

DISCUSSION

Grounds One Through Six Are Procedurally Barred

Federal courts “will not review a question of federal law

decided by a state court if the decision of that court rests on a

state law ground that is independent of the federal question and

adequate to support the judgment.”

722, 729 (1991); Walker v. Martin, 562 U.S. 307, 315 (2011).

procedural default doctrine, which is a specific application of

the general adequate and independent state grounds doctrine, Fields

v. Calderon, 125 F.3d 757, 761-62 (9th Cir. 1997), “bar[s] federal

habeas [review] when a state court declined to address a prisoner’s

federal claims because the prisoner had failed to meet a state

procedural requirement.”

Coleman v. Thompson, 501 U.S.

The

Coleman, 501 U.S. at 729-30; Hanson v.

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 12 of 33 Page ID #:3985

Mahoney, 433 F.3d 1107, 1113 (9th Cir. 2006).

procedural bar, the state’s rule had to be independent and adequate

at the time Petitioner purportedly failed to comply with it.

Fields, 125 F.3d at 760.

independent bar if it is not interwoven with federal law or

dependent upon a federal constitutional ruling.

470 U.S. 68, 75 (1985); Michigan v. Long, 463 U.S. 1032, 1040-41

(1983).

federal court review if it was “firmly established and regularly

followed” at the time the state court applied it.

498 U.S. 411, 423-24 (1991); King v. Lamarque, 464 F.3d 963, 965

(9th Cir. 2006).

To constitute a

A state procedural rule is considered an

Ake v. Oklahoma,

A state procedural rule constitutes an adequate bar to

Ford v. Georgia,

Procedural

default

affirmative

defense,

Gray

Netherland, 518 U.S. 152, 165-66 (1996); Insyxiengmay v. Morgan,

403 F.3d 657, 665 (9th Cir. 2005), “and the state has the burden

of showing that the default constitutes an adequate and independent

ground.”

322 F.3d 573, 585 (9th Cir. 2003).

adequately pled the existence of an independent and adequate state

procedural ground as an affirmative defense, the burden to place

that defense in issue shifts to the petitioner.”

at 586; King, 464 F.3d at 966-67.

this

burden

asserting

specific

demonstrate

the

inadequacy

citation to authority demonstrating inconsistent application of

the rule.’”

586).

Insyxiengmay, 403 F.3d at 665-66; Bennett v. Mueller,

However, “[o]nce the state has

Bennett, 322 F.3d

“The petitioner ‘may satisfy

the

factual

state

allegations

procedure,

that

including

King, 464 F.3d at 967 (quoting Bennett, 322 F.3d at

“Once a petitioner has demonstrated the inadequacy of a

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 13 of 33 Page ID #:3986

rule, the state bears the ultimate burden of proving the rule bars

federal review.”

2005); King, 464 F.3d at 967.

Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir.

Here, Respondent asserts that Petitioner has procedurally

defaulted Grounds One through Six.

addressing whether Petitioner has procedurally defaulted these

claims, the Court looks to the decision of the last state court to

which Petitioner presented this claim to determine if the state

court

ground.”

680 F.3d 1105, 1109 (9th Cir. 2012) (Under “the doctrine of

procedural default, . . . a federal court is barred from hearing

the claims of a state prisoner in a habeas corpus proceeding when

the decision of the last state court to which the prisoner presented

his federal claims rested on an ‘independent and adequate state

ground.’”

“[w]here there has been one reasoned state judgment rejecting a

federal claim, later unexplained orders upholding that judgment or

rejecting the same claim rest upon the same ground.”

501 U.S. at 803.

One through Six was the California Supreme Court, which denied

Petitioner’s second petition for review without comment or citation

to authority.

these claims in her habeas corpus petition to the California Court

of Appeal, which denied Grounds One through Six as untimely,2 denied

decision

rested

(Ans. Mem. at 7-10).

“independent

and

adequate

state

Coleman, 501 U.S. at 730; see also Nitschke v. Belleque,

(citation omitted)).

However, as previously noted,

Nunnemaker,

Here, the last state court to address Grounds

(Lodgments 19-22).

Before that, Petitioner raised

Petitioner asserts that she “never delayed filing her habeas

petition” (Reply at 9), but the California Court of Appeal

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 14 of 33 Page ID #:3987

the

prosecutorial misconduct, and sentencing error” because “they could

have been asserted at trial but were not [citing In re Seaton, 34

Cal. 4th 193, 200 (2004),] . . . or could have been asserted on

appeal but were not[,] [citing In re Reno, 55 Cal. 4th 428, 490

(2012),

alternately denied these claims on the merits.3

2-6).

“claims

and

evidentiary

Dixon,

error,

Cal.

instructional

756,

759

error,

(1953),]”

and

(Lodgment 18 at

determined otherwise, and the Court cannot second guess the

California Court of Appeal’s application of state law.

See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state

court’s interpretation of state law, including one announced on

direct appeal of the challenged conviction, binds a federal court

sitting in habeas corpus.”); Hicks on behalf of Feiock v. Feiock,

485 U.S. 624, 629-30 & n.3 (1988) (“We are not at liberty to depart

from the state appellate court’s resolution of these issues of

state law. Although petitioner marshals a number of sources in

support of the contention that the state appellate court misapplied

state law on these two points, the California Supreme Court denied

review of this case, and we are not free in this situation to

overturn the state court’s conclusions of state law.”); Martinez

v. Ryan, 926 F.3d 1215, 1224 (9th Cir. 2019) (federal court lacks

jurisdiction to address the contention that state court

misinterpreted its procedural default rules); Poland v. Stewart,

169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas courts lack

jurisdiction . . . to review state court applications of state

procedural rules.”; Johnson v. Foster, 786 F.3d 501, 508 (7th Cir.

2015) (A “federal habeas court is not the proper body to adjudicate

whether a state court correctly interpreted its own procedural

rules, even if they are the basis for a procedural default.”).

3 The fact that the California Court of Appeal alternately rejected

Grounds One through Six on the merits does not prevent the claims

from being procedurally barred in this Court. Harris v. Reed, 489

U.S. 255, 264 n.10 (1989); Comer v. Schriro, 480 F.3d 960, 964 n.6

(9th Cir. 2007).

However, “AEDPA deference applies to th[e]

alternative holding[s] on the merits.” Clabourne v. Ryan, 745 F.3d

362, 383 (9th Cir. 2014), overruled in part on other grounds by,

McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc); Stephens

v. Branker, 570 F.3d 198, 208 (4th Cir. 2009).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 15 of 33 Page ID #:3988

“California’s timeliness rule is an independent and adequate

state

untimely claims.”

2016) (italics in original), cert. denied, 138 S. Ct. 244 (2017);

Martin,

contemporaneous

independent and adequate procedural ground.4

F.3d 787, 793 n.2 (9th Cir. 2016); Tong Xiong v. Felker, 681 F.3d

1067, 1075 (9th Cir. 2012); Fairbank v. Ayers, 650 F.3d 1243, 1256-

57 (9th Cir. 2011); see also Vansickel v. White, 166 F.3d 953, 957-

58 (9th Cir. 1999) (California’s contemporaneous objection rule is

independent

and

analysis).

Finally,

adequate and independent state law ground.

Ct. 1802, 1804-06 (2016) (per curiam); Bennett, 322 F.3d at 582-

83; Roybal v. Davis, 148 F. Supp. 3d 958, 987 (S.D. Cal. 2015);

Protsman v. Pliler, 318 F. Supp. 2d 1004, 1007-08 (S.D. Cal. 2004).5

law

ground

562

sufficient

bar

federal

habeas

relief

Ayala v. Chappell, 829 F.3d 1081, 1095 (9th Cir.

U.S.

objection

adequate

the

310-11.

Likewise,

rule

long

for

has

purposes

Reno/Dixon

been

California’s

held

Zapien v. Martel, 849

procedural

citation

qualifies

default

Johnson v. Lee, 136 S.

California’s contemporaneous objection rule provides that

“[o]rdinarily, a criminal defendant who does not challenge an

assertedly erroneous ruling of the trial court in that court has

forfeited his or her right to raise the claim on appeal.” In re

Sheena K., 40 Cal. 4th 875, 880 (2007).

In Lee, the Supreme Court held that California’s Dixon rule

“qualifies as adequate to bar federal habeas review.” Lee, 136 S.

Ct. at 1805-06. In Bennett, the Ninth Circuit held that a post-In

re Robbins, 18 Cal. 4th 770 (1998), denial of a state petition for

untimeliness “is an independent procedural ground.” Bennett, 322

F.3d at 582-83. Since Bennett’s rationale applies equally to the

Dixon bar, it follows that the Dixon citation qualifies as an

independent state law ground. Protsman, 318 F. Supp. 2d at 100708; see also Roybal, 148 F. Supp. 3d at 987 (“As the Dixon rule

was applied in this case nearly fifteen years after Robbins and

the California Supreme Court’s stated intention to refrain from

considering federal law in applying state procedural bars, this

Court is in accord with other district courts in concluding that

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 16 of 33 Page ID #:3989

Because Respondent has adequately pled the affirmative defense

of procedural bar, the burden now shifts to Petitioner to place

the affirmative defense in issue.

Bennett, 322 F.3d at 586.

for petitioners to place the defense in issue is to assert ‘specific

factual allegations that demonstrate the inadequacy of the state

procedure’ by citing relevant cases.”

(quoting Bennett, 322 F.3d at 586).

Thus, Petitioner has not met her burden and she has procedurally

defaulted Grounds One through Six.

1143, 1155 (9th Cir. 2013).

King, 464 F.3d at 966-67;

“In most circumstances, the best method

King, 464 F.3d at 967

Petitioner has not done this.

Cunningham v. Wong, 704 F.3d

When a habeas petitioner “has defaulted [her] federal claims

in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal

law, or demonstrate that failure to consider the claims will result

in a fundamental miscarriage of justice.”

750; Medley v. Runnels, 506 F.3d 857, 869 (9th Cir. 2007) (en

banc).

prejudice for the procedural default of Grounds One, Two, Four and

Five, and the failure to consider Ground Three would constitute a

fundamental miscarriage of justice.

Here,

Petitioner

argues

she

can

Coleman, 501 U.S. at

establish

cause

and

(Reply at 6-11).

the procedural rule was independent of federal law at the time of

its application to Petitioner’s habeas claims.”).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 17 of 33 Page ID #:3990

Cause and Prejudice

“Cause

for

procedural

the

petitioner,

default

exists

something

that

where

something

external

attributed to [her], . . . impeded [her] efforts to comply with

the State’s procedural rule.”

(2012) (citation, internal quotation marks and brackets omitted;

italics

petitioner

constitutional errors ‘worked to [her] actual and substantial

disadvantage,

constitutional dimensions.’” Schneider v. McDaniel, 674 F.3d 1144,

1153 (9th Cir. 2012) (quoting United States v. Frady, 456 U.S. 152,

170 (1982)); Sexton v. Cozner, 679 F.3d 1150, 1158 (9th Cir. 2012).

Petitioner has the burden of proving both cause and prejudice.

Bousley v. United States, 523 U.S. 614, 622 (1998); Coleman, 501

U.S. at 750.

original);

infecting

fairly

Maples v. Thomas, 565 U.S. 266, 280

Coleman,

demonstrates

cannot

501

prejudice

[her]

U.S.

entire

753.

establishing

trial

with

“A

habeas

that

error

the

Petitioner contends that pursuant to Martinez v. Ryan, 566

U.S. 1 (2012), she has shown cause and prejudice for procedurally

defaulting Grounds One, Two, Four and Five because she “raised

issues of ineffective assistance of trial counsel” in those claims.

(Reply at 6-8).

While attorney ignorance or inadvertence cannot establish

cause for a procedural default, “[a]ttorney error that constitutes

ineffective assistance of counsel is cause[.]”

at 753-54; see also Davila v. Davis, 137 S. Ct. 2058, 2065 (2017)

APPENDIX B

Coleman, 501 U.S.

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 18 of 33 Page ID #:3991

(“It has long been the rule that attorney error is an objective

external factor providing cause for excusing a procedural default

only if that error amounted to a deprivation of the constitutional

right to counsel.”).

constitutionally ineffective assistance is ‘imputed to the State’

and is therefore external to the prisoner[,]” while “[a]ttorney

error that does not violate the Constitution . . . is attributed

to the prisoner ‘under well-settled principles of agency law.’”

Davila, 137 S. Ct. at 2065 (citations omitted); Coleman, 501 U.S.

at 754.

that, generally, “attorney error committed in the course of state

postconviction proceedings — for which the Constitution does not

guarantee the right to counsel — cannot supply cause to excuse a

procedural default that occurs in those proceedings.”

S. Ct. at 2065; Coleman, 501 U.S. at 757; see also Atwood v. Ryan,

870 F.3d 1033, 1059 (9th Cir. 2017) (“‘Because a prisoner does not

have a constitutional right to counsel in state postconviction

proceedings,’ as a general rule ‘ineffective assistance in those

proceedings does not qualify as cause to excuse a procedural

default.’” (citation omitted)).

This is because an “error amounting to

Applying this distinction, the Supreme Court has held

Davila, 137

Martinez provides a “narrow, ‘equitable . . . qualification’”

to the general rule “where state law requires prisoners to raise

claims of ineffective assistance of trial counsel ‘in an initial-

review collateral proceeding,’ rather than on direct appeal.”6

Martinez does not extend to procedurally defaulted claims of

ineffective assistance of appellate counsel. Davila, 137 S. Ct.

at 2065-66; Hurles v. Ryan, 914 F.3d 1236, 1237-38 (9th Cir. 2019)

(per curiam); see also Martinez, 926 F.3d at 1225 (“[I]neffective

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 19 of 33 Page ID #:3992

Davila, 137 S. Ct. at 2065 (quoting Martinez, 566 U.S. at 16-17);

see also Jones v. Ryan, 733 F.3d 825, 843 (9th Cir. 2013) (“Martinez

‘qualifie[d] Coleman by recognizing a narrow exception’ to that

case’s rule that state post-conviction relief counsel’s ineffective

assistance cannot serve as cause to excuse the procedural default

of an ineffective-assistance-of-trial-counsel claim.” (citation

omitted)).

bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if’ the default results from the

ineffective assistance of the prisoner’s counsel in the collateral

proceeding.”

U.S. at 17); see also Martinez, 566 U.S. at 17 (“Where, under state

law, claims of ineffective assistance of trial counsel must be

raised in an initial-review collateral proceeding, a procedural

default

substantial claim of ineffective assistance at trial if, in the

initial-review collateral proceeding, there was no counsel or

counsel in that proceeding was ineffective.”).

applies both where state law explicitly prohibits prisoners from

bringing claims of ineffective assistance of trial counsel on

direct appeal and where the State’s ‘procedural framework, by

reason of its design and operation, makes it unlikely in a typical

case that a defendant will have a meaningful opportunity to raise’

that claim on direct appeal.”

Trevino v. Thaler, 569 U.S. 413, 429 (2013)).

In “those situations, ‘a procedural default will not

will

Davila, 137 S. Ct. at 2065 (quoting Martinez, 566

not

bar

federal

habeas

court

from

hearing

This “exception

Davila, 137 S. Ct. at 2065 (quoting

assistance of [post-conviction review] counsel can constitute cause

only to overcome procedurally defaulted claims of ineffective

assistance of trial counsel.”).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 20 of 33 Page ID #:3993

To “establish ‘cause’ to overcome procedural default under

Martinez, a petitioner must show: (1) the underlying ineffective

assistance

petitioner was not represented or had ineffective counsel during

the PCR proceeding; (3) the state PCR proceeding was the initial

review proceeding; and (4) state law required (or forced as a

practical matter) the petitioner to bring the claim in the initial

review collateral proceeding.”

1319 (9th Cir. 2014) (en banc); Trevino, 569 U.S. at 423, 429.

trial

counsel

claim

‘substantial’;

(2)

the

Dickens v. Ryan, 740 F.3d 1302,

Petitioner

argues

that

Martinez

applies

California

met

Martinez’s

petitioners.

requirements because she brought Grounds One, Two, Four and Five

“in the initial-review collateral proceeding[,]” she “did not have

counsel during the state collateral review proceeding[,] and the

state

proceeding for the claim.”

Martinez is applicable to California petitioners, see Martinez v.

McGrath, 535 F. App’x 614, 615 (9th Cir. 2013) (citing Trevino and

assuming without deciding that Martinez applies to post-conviction

proceedings in California); People v. Lopez, 42 Cal. 4th 960, 972

(2008)

conceivable tactical purpose for counsel’s actions, claims of

ineffective

corpus, not on direct appeal.”), Petitioner has failed to establish

cause under Martinez.

She

collateral

(“[E]xcept

also

contends

review

assistance

proceeding

she

was

(Reply at 7-8).

those

that

rare

counsel

the

should

APPENDIX B

‘initial’

review

Assuming arguendo that

instances

has

where

there

raised

habeas

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 21 of 33 Page ID #:3994

Petitioner’s assertion that she did not have counsel during

the initial state collateral review proceeding is incorrect and,

at best, disingenuous because Petitioner’s federal habeas counsel

also filed her state habeas corpus petitions in Riverside County

Superior Court and the California Court of Appeal as well as the

subsequent petition for review in the California Supreme Court.

(See Dkt. Nos. 1, 3, 26; Lodgments 4, 14, 16-17, 19, 21).

event, Martinez is inapposite because Petitioner does not contend

her state habeas counsel – that is, her current counsel – provided

ineffective assistance during the initial post-conviction review

proceeding.7

(See Reply at 6-9).8

In any

Accordingly, Martinez does not

As noted, current counsel was also Petitioner’s state habeas

counsel, so counsel’s decision to avoid claiming ineffective

assistance during the state habeas process is understandable.

Moreover,

unlike

Martinez

and

Trevino,

Petitioner

raised

ineffective assistance of trial counsel claims in her initial state

habeas petition. (See Lodgments 4, 14); see also Trevino, 569 U.S.

at 419-20; Martinez, 566 U.S. at 7.

8 The only ineffective assistance allegations Petitioner makes are

against her trial and appellate counsel. However, Petitioner does

not suggest the alleged ineffective assistance of her trial and/or

appellate counsel constitute cause for her procedural defaults.

(See Reply at 6-8). Even if she had so argued, it would not have

benefitted her.

The Court cannot consider an ineffective

assistance of trial or appellate counsel claim as “cause” for a

procedural default when, as here, the ineffective assistance of

counsel claim is itself procedurally defaulted.

Edwards v.

Carpenter, 529 U.S. 446, 453 (2000); see also Moraga v. McDaniel,

415 F. App’x 784, 786 (9th Cir. 2011) (“While it is true that

ineffective assistance of counsel may satisfy the cause requirement

to overcome a procedural default, it cannot serve as cause if that

claim is itself procedurally defaulted.”); Hall v. Scribner, 619

F. Supp. 2d 823, 844 (N.D. Cal. 2008) (“A procedurally defaulted

ineffective assistance of counsel claim is not cause to excuse the

default of another habeas claim unless the petitioner can satisfy

the cause and prejudice standard with respect to the ineffective

assistance of counsel claim itself.”).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 22 of 33 Page ID #:3995

establish cause for Petitioner’s procedural default of Grounds One,

Two, Four and Five.9

Fundamental Miscarriage of Justice

Petitioner also argues that she has demonstrated a fundamental

miscarriage of justice in Ground Three.

qualify for the “fundamental miscarriage of justice” exception to

the

constitutional violation has probably resulted in the conviction

of one who is actually innocent.’”

327 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986));

Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012). “To be credible,

such a claim requires [P]etitioner to support [her] allegations of

constitutional error with new reliable evidence — whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence — that was not presented at trial[,]”

and “show that it is more likely than not that no reasonable juror

would have found [P]etitioner guilty beyond a reasonable doubt.”

Schlup, 513 U.S. at 324, 327; House v. Bell, 547 U.S. 518, 537

(2006).

procedural

default

rule,

Petitioner

(Reply at 6-11).

must

“show

that

‘a

Schlup v. Delo, 513 U.S. 298,

Here, while Petitioner conclusorily argues she is “actually

innocent of the crime or crimes of which she was convicted[,]” she

Because Petitioner has not established cause, the Court need not

consider the issue of prejudice. See Engle v. Isaac, 456 U.S. 107,

134 n.43 (1982) (“Since we conclude that these respondents lacked

cause for their default, we do not consider whether they also

suffered actual prejudice.”).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 23 of 33 Page ID #:3996

proffers no new evidence supporting this assertion but instead

argues the fundamental miscarriage of justice exception applies

because the trial court erroneously admitted inflammatory evidence

– a 2003 reckless driving conviction and Petitioner’s boyfriend’s

911 call – that led to her conviction.

Petition at 6; Pet. Mem. at 31-45).

admission of this evidence says nothing about whether Petitioner

is actually – that is factually – innocent of the crimes for which

she was convicted, see Bousley v. United States, 523 U.S. 614, 623-

24 (1998) (“‘[A]ctual innocence’ means factual innocence, not mere

legal insufficiency.”); Wildman v. Johnson, 261 F.3d 832, 842-43

(9th Cir. 2001) (“To show manifest injustice resulting from a

procedural

innocence.”), and Petitioner’s conclusory allegations of innocence

are

miscarriage of justice.

(9th

miscarriage of justice exception when “there [was] no new evidence

to support an actual innocence claim”); Casey v. Moore, 386 F.3d

896, 921 n.27 (9th Cir. 2004) (“[T]he fundamental miscarriage of

justice exception applies only when a constitutional violation

probably has resulted in the conviction of one actually innocent

of a crime and petitioner supplements his constitutional claim with

a colorable showing of factual innocence, which [petitioner] has

not done.”); Ratliff v. Hedgepeth, 712 F. Supp. 2d 1038, 1054 (C.D.

Cal. 2010) (A “conclusory assertion is clearly insufficient to meet

[the Schlup] standard.”).

defaulted Grounds One through Six.

default,

manifestly

Cir.

2008)

Wildman

insufficient

. . .

(Reply at 10-11; see also

However, the alleged erroneous

needs

establish

demonstrate

factual

fundamental

See Cook v. Schriro, 538 F.3d 1000, 1029

(petitioner

did

not

qualify

for

fundamental

Therefore, Petitioner has procedurally

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 24 of 33 Page ID #:3997

Petitioner Is Not Entitled To Relief On Her Jury Instruction

Claim

Instructional error warrants federal habeas relief only if

the “‘instruction by itself so infected the entire trial that the

resulting conviction violates due process[.]’”

Sarausad, 555 U.S. 179, 191 (2009) (citation and internal quotation

marks omitted); Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per

curiam).

Instead, Petitioner must show there was a “reasonable likelihood

that the jury has applied the challenged instruction in a way that

violates the Constitution.”

and internal quotation marks omitted); Sarausad, 555 U.S. at 190-

91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a

federal court may overturn a conviction resulting from a state

trial in which [an allegedly faulty] instruction was used, it must

be established not merely that the instruction is undesirable,

erroneous or even ‘universally condemned,’ but that it violated

some right which was guaranteed to the defendant by the Fourteenth

Amendment.”).

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.”

(citation omitted); Sarausad, 555 U.S. at 191.

the alleged error is the failure to give an instruction, the burden

on the Petitioner is “‘especially heavy.’”

191

Moreover, if a constitutional error occurred, federal habeas relief

Waddington v.

The instruction must be more than merely erroneous.

(quoting

Further,

McNeil, 541 U.S. at 437 (citations

“[i]t

well

established

that

the

Estelle v. McGuire, 502 U.S. 62, 72 (1991)

Henderson

Kibbe,

431

APPENDIX B

Where, as here,

Sarausad, 555 U.S. at

U.S.

145,

155

(1977)).

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 25 of 33 Page ID #:3998

remains unwarranted unless the error caused prejudice, i.e., unless

determining the jury’s verdict.

61-62 (2008) (per curiam); Brecht v. Abrahamson, 507 U.S. 619, 623

(1993).

had

substantial

and

injurious

effect

influence

Hedgpeth v. Pulido, 555 U.S. 57,

The trial court instructed the jury with, inter alia, CALCRIM

821, discussing felony child endangerment.10

(RT 662-64; CT 337-

As given to the jury, CALCRIM 821 stated:

The defendant is charged in Count 5 with child abuse

likely to produce great bodily harm or death, in

violation of [P.C. § 273a(a)].

[¶]

To prove the

defendant is guilty of this crime, the People must prove

that, first, the defendant, while having care or custody

of a child, willfully caused or permitted that child to

be placed in a situation where the child’s person or

health was endangered; secondly, the defendant inflicted

pain or suffering on the child or caused or permitted the

child to suffer or be injured or to be endangered under

circumstances or conditions likely to produce great bodily

harm or death; and, third, the defendant was criminally

negligent when she caused or permitted the child to suffer

or be injured or be endangered. [¶] Someone commits an

act willfully when he or she does it willingly or on

purpose. [¶] The phrase likely to produce great bodily

harm or death means the probability of great bodily harm

or death is high.

[¶]

Great bodily harm means

significant or substantial physical injury.

It is an

injury that is greater than minor or moderate harm. [¶]

A child is any person under the age of 18 years. [¶]

Unjustifiable physical pain or mental suffering is pain

or suffering that is not reasonably necessary or is

excessive under the circumstances.

[¶]

Criminal

negligence involves more than ordinary carelessness,

inattention, or mistake in judgment. A person acts with

criminal negligence when, first, he or she acts in a

reckless way that is a gross departure from the way an

ordinarily careful person would act in the same

situation; second, the person’s act amounts to a

disregard for human life or indifference to the

consequences of his or her acts; and, third, a reasonable

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 26 of 33 Page ID #:3999

38).

due process of law when the trial court failed to instruct the jury

on the lesser-included offense of misdemeanor child endangerment.

(Petition at 6a; Pet. Mem. at 65-71).

However, in Ground Seven, Petitioner contends she was denied

Misdemeanor child endangerment is a lesser included offense

of felony child endangerment.11

App. 4th 975, 980 (2007).

failure of a state court to instruct on a lesser included offense

in a capital murder case is constitutional error if there was

evidence to support the instruction, Beck v. Alabama, 447 U.S. 625,

638 (1980), the Supreme Court reserved judgment on “whether the

Due Process Clause would require the giving of such instructions

People v. Moussabeck, 157 Cal.

Although the Supreme Court has held the

person would have known that acting in that way would

naturally and probably result in harm to others. [¶] A

child does not need to actually suffer great bodily harm,

but if a child does suffer great bodily harm, you may

consider that fact along with all of the other evidence

in deciding whether the defendant committed the offense.

(RT 662-64; CT 337-38).

“P.C. [§] 273a defines both felony and misdemeanor child abuse.”

People v. Moussabeck, 157 Cal. App. 4th 975, 980 (2007).

The criminal acts proscribed by [P.C. §] 273a are: (1)

willfully causing or permitting any child to suffer, or

(2) inflicting thereon unjustifiable physical pain or

mental suffering, or (3) having the care or custody of

any child, willfully causing or permitting the person or

health of such child to be injured, or (4) willfully

causing or permitting such child to be placed in such

situation that its person or health is endangered. If

the act is done under circumstances or conditions likely

to produce great bodily injury or death, it is a felony;

if not, the offense is a misdemeanor.

Id. (citations omitted).

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 27 of 33 Page ID #:4000

in a noncapital case[,]” Id. at 638 n.14; see also Keeble v. United

States, 412 U.S. 205, 213 (1973) (The Supreme Court has “never

explicitly held that the Due Process Clause of the Fifth Amendment

guarantees the right of a defendant to have the jury instructed on

a lesser included offense. . . .”), and the Ninth Circuit has

specifically 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 question.”

163 F.3d 1092, 1106 (9th Cir. 1998); Solis v. Garcia, 219 F.3d 922,

929 (9th Cir. 2000) (per curiam); see also United States v. Rivera-

Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (“In the context of

a habeas corpus review of a state court conviction, we have stated

that there is no clearly established federal constitutional right

Therefore, the state court’s rejection of Petitioner’s lesser

included

unreasonable application of, clearly established federal law.

See

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases

give no clear answer to the question presented, . . . it cannot be

said

established Federal law.

Under the explicit terms of § 2254(d)(1),

therefore,

unauthorized.”

quotation marks omitted; brackets in original)).

lesser

included

instruction

that

the

instructions

argument

state

relief

court

cannot

Windham v Merkle,

non-capital

contrary

unreasonabl[y]

cases.”).

to,

appli[ed]

(citation

and

clearly

internal

Petitioner disagrees, arguing due process entitles her to a

meaningful opportunity to present a complete defense, including

adequate instructions on the defense theory of the case.

Mem. at 68-71).

(Pet.

In this case, Petitioner asserts she was entitled

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 28 of 33 Page ID #:4001

to a jury instruction on misdemeanor child endangerment because

“[e]ven though [alcohol and drugs] were involved, one or more

reasonable jurors could have believed that [Petitioner’s] conduct,

albeit abhorrent, did not subject [her daughter] to the possibility

of great bodily injury” given that she was driving “a hefty, strong

[Chevy] Tahoe, she carefully buckled her child into a properly

installed car seat in the second row of seats[,]” there was no

evidence either Petitioner or her child were injured, and the

damage to the Tahoe was moderate.

36).

(Pet. Mem. at 68-69; Reply at

A criminal defendant “is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for

a reasonable jury to find in [her] favor.”

States, 485 U.S. 58, 63 (1988); Bradley v. Duncan, 315 F.3d 1091,

1098 (9th Cir. 2002); see also California v. Trombetta, 467 U.S.

479, 485 (1984) (“Under the Due Process Clause of the Fourteenth

Amendment,

notions of fundamental fairness.

We have long interpreted this

standard

that

afforded a meaningful opportunity to present a complete defense.”);

Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (“‘Failure

of a state court to instruct on a lesser offense fails to present

a federal constitutional question and will not be considered in a

federal habeas corpus proceeding.’

apply to every habeas corpus review, because the criminal defendant

is also entitled to adequate instructions on his or her theory of

defense.”

criminal

prosecutions

fairness

(citations

require

omitted)).

must

Mathews v. United

comport

with

criminal

prevailing

defendants

This general statement may not

However,

APPENDIX B

this

rule

does

not

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 29 of 33 Page ID #:4002

benefit Petitioner because her theories of defense as to count five

were that she was not guilty because she was not criminally

negligent and she did not place her daughter into a situation

likely to cause great bodily injury or death, not that she only

committed the lesser offense of misdemeanor child endangerment.12

(See RT 735-36); see also Bashor, 730 F.2d at 1240 (“There was no

fundamental unfairness in the trial court’s failure to instruct

the jury on lesser included offenses” when petitioner did not base

his theory of defense on those lesser included offenses); Clark v.

Singh, 2009 WL 82279, *5-6 (C.D. Cal. 2009) (“Defense counsel did

not request an instruction on misdemeanor child endangerment. . . .

It is clear to the Court that defense counsel made a tactical

decision to defend the felony endangerment charge by arguing that

an element had not been met.

counsel that the element had not been met, it would have returned

a not guilty verdict on that count.

defense was not that he was guilty of the lesser included offense

of misdemeanor child endangerment but rather that he was not guilty

[Accordingly,] petitioner is unable to claim that he was denied

instruction on a lesser included offense that was his theory of

defense. . . .”).13

the

charged

offense

Had the jury agreed with defense

In other words, petitioner’s

felony

child

endangerment. . . .

That is, defense counsel never sought instruction on misdemeanor

child endangerment and instead argued the prosecutor had not proven

felony child endangerment beyond a reasonable doubt. (See RT 602,

735-36).

Petitioner complains that “since the jury was provided only an

‘all or nothing’ verdict choice [on] the child endangerment charge,

it could not render a conclusion coincident with the possibility

it believed the conduct constituted endangerment short of

endangerment positing potential great bodily injury[,]” which “had

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 30 of 33 Page ID #:4003

Moreover, failure to instruct on a defense theory constitutes

reversible error only “‘if the theory is legally sound and evidence

in the case makes it applicable.’”

904-05 (9th Cir. 2006) (citations omitted).

Court of Appeal properly found that “[g]iven the evidence in this

case, there was no basis upon which to give the instruction on the

lesser

included

offense”

Clark v. Brown, 450 F.3d 898,

misdemeanor

Here, the California

child

endangerment.14

the effect of denying [Petitioner] a reasonable defense to the

charge.” (Pet. Mem. at 71). This is simply not true. If the jury

believed the prosecutor had not proven all the elements of felony

child endangerment, it would have returned a not guilty verdict on

count 5.

Clark, 2009 WL 82279 at *5.

Indeed, the jury was

specifically instructed to return a not guilty verdict unless the

prosecutor proved Petitioner guilty beyond a reasonable doubt (RT

628-29; CT 297), and it is presumed the jury followed its

instructions.

Blueford v. Arkansas, 566 U.S. 599, 606 (2012);

Weeks v. Angelone, 528 U.S. 225, 234 (2000).

14 The California Court of Appeal explained:

[W]e conclude there is no substantial evidence from

which a reasonable jury could find [Petitioner] committed

misdemeanor child endangerment, but not felony child

endangerment.

The evidence in the case showed

[Petitioner] consumed alcohol, methamphetamine and

marijuana before or while she drove her three-year-old

child from Fallbrook to Menifee to purchase a puppy. She

had an open empty bottle of vodka in her vehicle.

Immediately before the accident, she was driving 59 miles

per hour on a roadway with a speed limit of 35 miles per

hour. She admitted she was not looking where she was

going as she approached the intersection. She ran a red

light at a high rate of speed and struck another vehicle,

killing one of the occupants.

Each of the intoxicants, and the combination

thereof, impaired [Petitioner’s] ability to drive.

[Petitioner] drove under the influence with her child in

the car knowing the risks involved. She had previously

attended courses about the dangers of driving under the

influence.

In addition, her boyfriend had recently

called 911 because he was concerned about her drinking

and driving with children in the vehicle. He told her

not to drink and drive with their children in the car

for their safety.

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 31 of 33 Page ID #:4004

(Lodgment 1 at 9-10).

endangerment

law[,]” the trial court’s failure to give it “was not error, let

alone a violation of due process.”

1012, 1030 (9th Cir. 2005); Solis v. Garcia, 219 F.3d 922, 929-30

(9th Cir. 2000); see also Delgado v. Figueroa, 2016 WL 1084725, *7

(C.D. Cal.) (rejecting claim that trial court erred in failing to

instruct the jury on misdemeanor child endangerment when no such

instruction was requested and “the evidence did not warrant an

instruction on misdemeanor child endangerment because a jury could

not reasonably have found that Petitioner had committed only the

lesser offense of misdemeanor child endangerment”), report and

recommendation accepted by, 2016 WL 1084765 (C.D. Cal. 2016);

Clark, 2009 WL 82279 at *5-6 (rejecting claim that trial court

erred

endangerment

instruction and, “as the Court of Appeal found, the evidence did

not

because a ‘jury could not reasonably have found that [petitioner]

The

fact

neither

she

nor

her

child

were

significantly injured in the accident is fortuitous, but

irrelevant.

We cannot agree a reasonable jury could

conclude [Petitioner’s] criminally negligent conduct did

not create a probability of serious injury for her child

simply because she was driving a large SUV and happened

to crash into a smaller vehicle. Even in an SUV, there

is a significant risk of great bodily injury and death

associated with driving under the influence of alcohol

and drugs. [Petitioner’s] impaired driving could have

just as easily caused her to become involved in a rollover accident or a collision with a larger vehicle, with

a much different outcome for the child.

“instruction

failing

warrant

Accordingly, because the misdemeanor child

when

was

not

instruct

defense

instruction

warranted

jury

misdemeanor

child

did

not

request

such

misdemeanor

(Lodgment 1 at 9-10 (citations omitted)).

California

Menendez v. Terhune, 422 F.3d

the

counsel

under

APPENDIX B

child

any

endangerment

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 32 of 33 Page ID #:4005

had

endangerment.’”).

committed

only

the

lesser

offense

misdemeanor

child

Finally, Petitioner has not shown that any possible error had

a substantial and injurious effect or influence in determining the

jury’s verdict.

623.

“[t]he evidence in this case overwhelmingly supported the jury’s

finding [that Petitioner’s] conduct in driving under the influence

of a combination of intoxicants at a high rate of speed and not

paying attention to the road ahead created a high probability of

great bodily harm or death for her child who was riding in the

vehicle.”

Pulido, 555 U.S. at 61-62; Brecht, 507 U.S. at

To the contrary, as the California Court of Appeal explained,

(Lodgment 1 at 11).

For all these reasons, the state court’s rejection of Ground

Seven was not contrary to, or an unreasonable application of,

clearly established federal law.

APPENDIX B

Case 5:17-cv-02187-JAK-SS Document 28 Filed 08/02/19 Page 33 of 33 Page ID #:4006

VII.

CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that the District

Judge issue an Order: (1) accepting this Report and Recommendation,

(2) denying the Petition for Writ of Habeas Corpus, and (3)

directing that Judgment be entered dismissing this action with

prejudice.

DATED:

August 2, 2019

/S/

__________

SUZANNE H. SEGAL

UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the Court

of Appeals, but may be subject to the right of any party to file

objections as provided in the Local Rules Governing the Duties of

Magistrate Judges and review by the District Judge whose initials

appear in the docket number.

Federal Rules of Appellate Procedure should be filed until entry

of the judgment of the District Court.

No notice of appeal pursuant to the

APPENDIX B

2/7/2017

California Courts Appellate Court Case Information

Supreme Court

Change court

Court data last updated: 02/07/2017 08:39 AM

Docket (Register of Actions)

PEOPLE v. DEANBAUMANN

Case Number S235286

Date

Description

Notes

06/20/2016

Petition for

review filed

Defendant and Appellant: Melissa Dean

Baumann

Pro Per

06/20/2016

Record

requested

06/23/2016

Received

Court of

Appeal

record

07/27/2016

Petition for

review

denied

08/30/2016

Returned

record

two doghouses (volumes 1 and 2)

petition, 2 doghouses

Click here to request automatic email notifications about this case.

Judicial Council of California

APPENDIX C

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2147063&doc_no=S235286

1/2

Filed 5/13/16 P. v. Dean-Baumann CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115{a)1 prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as sracified by rule 8.1115(b). This opinion lias not been certified for publication

or ordered published for purposes of rule 8.1 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

D069430

Plaintiff and Respondent,

(Super. Ct. No. RIF1210970)

MELISSA DEAN-BAUMANN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County,

Jeffrey J. Prevost, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.

APPENDIX C

INTRODUCTION

A jury convicted Melissa Dean-Bauman of second degree murder (Pen. Code,

§ 187, subd. (a); count 1),1 vehicular manslaughter with gross negligence while

intoxicated (§ 191.5, subd. (a); count 2), driving under the influence of alcohol and/or

drugs causing injury (Veh. Code, § 23153, subd. (a); count 3), felony drunk driving (Veh.

Code, § 23153, subd. (b); count 4), and felony child endangerment (§ 273a, subd. (a);

count 5). The jury found true allegations Dean-Bauman inflicted great bodily injury on

victims 70 years of age or older in committing counts 2 through 4 (§ 12022.7, subd. (c».

The court sentenced Dean-Baumann to prison for 15 years to life for count I. The

court sentenced Dean-Baumann to concurrent terms of six years for COllilt 2 and two

years each for COllilts 3 and 4. Pursuant to section 12022.7, subdivision (c), the court

added a five-year enhancement to the sentence for count 2 and additional enhancements

of one year and eight months (one-third of the five years) to each of the sentences for

counts 3 and 4. The court also sentenced Dean-Baumann to one year and four months for

count 5, to be served consecutively to count 1. Pursuant to section 654, the court stayed

punishment for counts 2 through 5.

On appeal, Dean-Baumann contends: (1) the court erred in failing to instruct on

the lesser included offense of misdemeanor child abuse/endangerment (§ 273a, subd. (b»

as to count 5 because the jury could have concluded her child was not at great risk of

bodily injury since the vehicle Dean-Baumann drove while under the influence of both

All further statutory references are to the Penal Code unless otherwise indicated.

APPENDIX C

alcohol and dnlgs was a sports utility vehicle (SUV) as opposed to some smaller vehicle;

(2) the true finding on the great bodily injury enhancement for count 2 should be stricken

as unauthorized under section 12022.7; and (3) the drunk driving convictions in counts 3

and 4 should have been vacated because they are lesser included offenses of the gross

vehicular manslaughter conviction in count 2. The People concede the second

contention. Therefore, we strike the enhancement for count 2. We disagree with the

other contentions and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2003 a police officer stopped Dean-Baumann after he observed her vehicle

make a right tum and then a U-turn before it turned left, drove over a sidewalk, through a

dirt field, and stopped behind a house. When the officer explained why he stopped her,

Dean-Baumann stated she was going home and this was the quickest route. The officer

smelled alcohol on her breath and noticed she had bloodshot and watery eyes. She also

had slurred speech and a dry mouth. Dean-Baumann denied drinking. However, she did

not perform well on field sobriety tests. She was cooperative, but giggly during the field

sobriety tests. The results of two preliminary alcohol sensor tests (breathalyzer) were

0.14 and 0.13. Dean-Baumann was arrested and cited for driving under the influence.

Later, in 2009, Dean-Baumann was required to attend drug and alcohol counseling

sessions regarding the impact of driving under the influence.

On September 10,2012, Dean-Baumann's boyfriend called 911 because he

suspected she was trying to pick up their child from school after she had been drinking.

APPENDIX C

Dean-Baumann knocked the phone from his hand as he was calling and she left with the

child in the car. Her boyfriend told her not to drink and drive with their children in the

vehicle.

On December 13, 2012, at approximately 12:30 p.m., Dean-Baumann ran ared

light at the intersection of McCall Boulevard and Encanto Drive in Menifee, California.

She drove her Chevrolet Tahoe into the intersection at a high rate of speed and struck a

Saturn driving the opposite direction, which was turning left onto Encanto Drive. A

witness, who was in the left turn lane behind the Saturn, saw the Tahoe come toward the

intersection without slowing down. The driver of the Tahoe did not appear to be paying

attention to the road. She had one hand on the steering wheel in the 12 o'clock position

as she looked toward the right. She appeared to be trying to find something or grab

something with her other hand.

Donald F. was taking his 86-year-old wife, Phyllis F., to the hairdresser and turned

left on a green turn signal from McCall Boulevard onto Encanto Drive. As he did so, his

vehicle was hit on the passenger side by Dean-Bauman's vehicle. Phyllis F. died from

blunt impact injuries to the torso as a result of the collision. Donald F. was taken to a

trauma center. He sustained cuts, bruises and a concussion.

After the collision, a witness saw Dean-Baumann raise her hands in the air. It

looked like she was talking or yelling at someone in the back of the vehicle. Another

witness saw the driver ofthe Tahoe exit her vehicle crying and holding a child. DeanBaumann's boyfriend, went to the scene to pick up the child.

APPENDIX C

A community service officer of the Riverside County Sheriffs Department

responded to the traffic collision. The officer found an elderly male in the driver's seat

and an elderly female in the front passenger seat. Both were injured. The male was

bleeding from his head. The female had a large gash wound to the skull. She was

unresponsive and her head draped forward. The male was aleli, but agitated.

When the responding officer initially contacted Dean-Baumann, she was crying

and appeared hysterical. Another officer later contacted Dean-Baumaun at the scene to

discuss the accident. Dean-Baumann said she and her daughter had come from Fallbrook

that morning to purchase a puppy and they were on their way home when the accident

occurred. She denied drinking or taking medication before the accident other than

medication for acid reflux.

The officer observed her eyes were bloodshot and watery, her speech was slurred

and the odor of alcohol emanated from her breath and person. He advised her the

passenger in the vehicle she hit was dead at the scene. During field sobriety tests, as

Donald F. was being loaded into an ambulance, Dean-Baumann laughed and talked about

how hard the tests were and how they were like games children play.

Dean-Baumann's blood alcohol level was found to be 0.16 percent, which is twice

the level at which a person is impaired for driving. Since the sample was drawn more

than an hour after the accident, her blood alcohol level at the time of the accident was

likely higher than 0.17 percent. She also tested positive for methamphetamine and

marijuana. The amount of methamphetamine found in her blood was more than three

APPENDIX C

times the therapeutic level. The levels of cannabinoids found in her blood indicated

marijuana use within hours of when the blood was drawn.

During an inspection of the SUV, an open empty bottle of vodka was fOllild inside

a closed compartment between the passenger and driver seat of the SUV under some

papers. The vehicle also smelled of alcohol.

A deputy sheriff for the Riverside County Sheriffs Department analyzed the crash

data retrieval (CDR) box in the Tahoe. The CDR records data when it is senses

something is about to happen. Various things can trigger the module such as braking, the

start of an impact, deployment of an airbag or a combination of things. The module

records information prior to the event based on an algorithm from the time the device is

enabled, i.e., algorithm enabled (AE). In this case, the data showed the vehicle was

traveling 59 miles per hour five seconds before AE and decelerated to 53 miles per hour

two seconds before AE. One second before AE, the speed was 29 miles per hour. That

amount of deceleration could not occur with braking, but instead would occur if the

vehicle struck something.

Dean-Baumann presented evidence she purchased a puppy at a residence

approximately three miles from the intersection where the accident occurred. The person

who sold the puppy to Dean-Baumann did not notice she was under the influence of

alcohol.

APPENDIX C

DISCUSSION

Dean-Baumann contends the court erred in failing to instruct the jury on the

elements of misdemeanor child abuse or endangerment as a lesser included offense of

felony child abuse or endangerment, as charged in count 5. Dean-Baumann contends a

jury could conclude, even though she drove while intoxicated through a red light at a high

rate of speed and broadsided another vehicle, her child was not endangered under

circumstances or conditions likely to produce great bodily injury because the child was

riding restrained in a car seat in the back seat of her SUV. Dean-Baumann claims the

large, heavy SUV was "somewhat impervious to damage" and the child was "more

protected than a child in a standard sedan, or small vehicle." We are not persuaded.

"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily

included in the charged offense if there is substantial evidence the defendant is guilty

only of the lesser.' [Citation.] Substantial evidence in this context is evidence from

which a reasonable jury could conclude that the defendant committed the lesser, but not

the greater, offense. [Citation.] 'The rule's purpose is ... to assure, in the interest of

justice, the most accurate possible verdict encompassed by the charge and supported by

the evidence.' [Citation.] In light of this purpose, the court need instruct the jur);' on a

lesser included offense only '[w]hen there is substantial evidence that an element of the

charged offense is missing, but that the accused is guilty of the lesser offense.''' (People

v. Shockley (2013) 58 Ca1.4th 400,403-404.)

APPENDIX C

"[T]he existence of 'any evidence, no matter how weak' will not justify

instructions on a lesser included offense, but such instructions are required whenever

evidence that the defendant is guilty only of the lesser offense is 'substantial enough to

merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is

, "evidence from which a jury composed of reasonable [persons] could ... conclude[]" ,

that the lesser offense, but not the greater, was committed." (People v. Breverman (1998)

19 Ca1.4th 142,162 (Breverman).)

"Section 273a defines both felony and misdemeanor child abuse. The criminal

acts proscribed by section 273a are: (1) willfully causing or permitting any child to

suffer, or (2) inflicting thereon unjustifiable physical pain or mental suffering, or (3)

having the care or custody of any child, willfully causing or permitting the person or

health of such child to be injured, or (4) willfully causing or permitting such child to be

placed in such situation that his or her person or health is endangered." (People v.

Moussabeck (2007) 157 Ca1.App.4th 975,980 (Moussabeck).) The Moussabeck court

explained the difference between felony child abuse or endangerment and misdemeanor

child abuse or endangennent: "If the act is done under circumstances or conditions likely

to produce great bodily injury or death, it is a felony (§ 273a, subd. (a)); if not, the

offense is a misdemeanor (§ 273a, subd. (b)). [Citation.] Misdemeanor child abuse

(citation), is a lesser included offense of felony child abuse." (Moussabeck, supra, at p.

980.)

Courts have defined the phrase "circumstances ... likely to produce great bodily

harm or death" in section 273a to mean" 'the probability of serious injury is great.' "

APPENDIX C

(People v. Sargent (1999) 19 Ca1.4th 1206, 1223; People v. Chaffin (2009) 173

Cal.App.4th 1348, 1351-1353; contra, People v. Wilson (2006) 138 Cal.App.4th 1197,

1204 [holding the term "likely" in section 273a means "a substantial danger, i.e., a serious

and well-founded risk, of great bodily harm or death"].) The jury, which convicted DeanBaumann of felony child endangerment, was instructed "[t]he phrase likely to produce

great bodily harm or death means the probability of great bodily harm or death is high."

(CALCRIM No. 821.)

We need not decide the contours of the definition of "likely" in section 273a,

because, under any standard, we conclude there is no substantial evidence from which a

reasonable jury could find Dean-Baumm1TI committed misdemeanor child endangerment,

but not felony child endangerment. The evidence in the case showed Dean-Baumann

consumed alcohol, methamphetamine and marijuana before or while she drove her threeyear-old child from Fallbrook to Menifee to purchase a puppy. She had an open empty

bottle of vodka in her vehicle. Immediately before the accident, she was driving 59 miles

per hour on a roadway with a speed limit of 35 miles per hour. She admitted she was not

looking where she was going as she approached the intersection. She ran a red light at a

high rate of speed and struck another vehicle, killing one of the occupants.

Each of the intoxicants, and the combination thereof, impaired Dean-Baumann's

ability to drive. Dean-Baumann drove under the influence with her child in the car

knowing the risks involved. She had previously attended courses about the dangers of

driving under the influence. In addition, her boyfriend had recently called 911 because

APPENDIX C

he was concerned about her drinking and driving with children in the vehicle. He told

her not to drink and drive with their children in the car for their safety.

The fact neither she nor her child were significantly injured in the accident is

fortuitous, but ine1evant. (People v. Clair (2011) 197 Cal.App.4th 949, 955-956 [lack of

evidence of actual injury or harm is ine1evant for violation of § 273a, subd. (a)].) We

cannot agree a reasonable jury could conclude Dean-Baumann's criminally negligent

conduct did not create a probability of serious injury for her child simply because she was

driving a large SUV and happened to crash into a smaller vehicle. Even in an SUV, there

is a significant risk of great bodily injury and death associated with driving under the

influence of alcohol and drugs. Deml-Baumann's impaired driving could have just as

easily caused her to become involved in a roll-over accident or a collision with a larger

vehicle, with a much different outcome for the child. Given the evidence in this case,

there was no basis upon which to give the instruction on the lesser included offense.

Even assuming, arguendo, it was error not to instmct on the lesser included

offense of misdemeanor child abuse, it was not prejudicial. We review the failure to

instmct sua sponte on a lesser included offense in a noncapital case under state standards

of reversibility. (Breverman, supra, 19 Cal.4th at p. 165, citing Cal. Const., art. VI, § 13;

People v. Watson (1956) 46 Cal.2d 818,836 (Watson).) "'Appellate review under

Watson ... takes an entirely different view ofthe evidence [than that employed when

considering whether or not to instmct on a lesser included offense]. Such posttrial review

focuses not on what a reasonable jury could do, but what such a jury is likely to have

APPENDIX C

done in the absence of the error under consideration. In making that evaluation, an

appellate court may consider, among other things, whether the evidence supporting the

existing judgment is so relatively strong, and the evidence supporting a different outcome

is so comparatively weak, that there is no reasonable probability the error of which the

defendant complains affected the result. Accordingly, a determination that a duty arose

to give instructions on a lesser included offense, and that the omission of such

instructions in whole or in part was error, does not resolve the question whether the error

was prejudicial. Application ofthe Watson standard of appellate review may disclose

that, though error occurred, it was harmless.'" (People v. Moye (2009) 47 Cal.4th 537,

556 (Moye).)

The evidence in this case overwhelmingly supported the jury's finding DeanBaumann's conduct in driving under the influence of a combination of intoxicants at a

high rate of speed and not paying attention to the road ahead created a high probability of

great bodily hann or death for her child who was riding in the vehicle. Speculation the

child was not at actually at risk of suffering death or great bodily injury because the child

was in an SUV is so comparatively weak we conclude any instructional error was

harmless. It is not reasonably probable Dean-Baumann would have obtained a more

favorable outcome had a misdemeanor child endangerment instruction been given.

(Moye, supra, 47 Cal.4th at pp. 557-558.)

With respect to count 2, the jury convicted Dean-Bauman of vehicular

manslaughter of Phyllis F. (§ 191.5, subd. (a).) The jury found true allegations Dean11

APPENDIX C

Baumann inflicted great bodily injury upon Donald F. when she committed count 2

(§ 12022.7, subd. (c». As a result, the court imposed and stayed the five-year sentence

enhancement for count 2.

Dean-Baumann contends, and the People concede, the enhancement for count 2

must be stricken pursuant to People v. Cook (2015) 60 Ca1.4th 922 (Cook). The Supreme

Court held in Cook great bodily injury enhancements under section 12022.7 do not apply

to a murder or manslaughter conviction, even if the victim who suffered great bodily

injury is not the deceased victim. (Cook, supra, at p. 935.) We, therefore, strike the great

bodily injury enhancement for count 2.

III

Dean-Baumann contends the convictions under counts 3 (Veh. Code, § 23153,

subd. (a), driving under the influence of alcohol and/or drugs causing injury) and 4 (Veh.

Code, § 23153, subd. (b), felony drunk driving) should have been vacated because they

are necessarily included offenses of count 2 (§ 191.5, subd. (a), gross vehicular

manslaughter while intoxicated). As a result, Dean-Baumann contends the court erred in

sentencing her and staying punishment as to these counts under section 654. The People

contend the convictions under counts 3 and 4 are not necessarily included offenses of

count I because they involve a different victim than charged in count 2. The People are

correct.

"In general, a person may be convicted of, although not punished for, more than

one crime arising out of the same act or course of conduct. 'In California, a single act or

course of conduct by a defendant can lead to convictions "of any number of the offenses

APPENDIX C

charged." [Citations.]' [Citation.] Section 954 generally permits multiple conviction.

Section 654 is its counterpart concerning punishment. It prohibits multiple punishment

for the same 'act or omission.' When section 954 permits multiple conviction, but section

654 prohibits multiple punishment, the trial court must stay execution of sentence on the

convictions for which multiple punishment is prohibited. [Citations.] ... [~] A judicially

created exception to the general rule permitting multiple conviction 'prohibits multiple

convictions based on necessarily included offenses.' [Citation.] '[1]f a crime cannot be

conul1itted without also necessarily committing a lesser offense, the latter is a lesser

included offense within the former.''' (People v. Reed (2006) 38 Cal.4th 1224, 12261227.)

The Supreme Court has held a defendant in a single driving incident may be

convicted of multiple crimes where he or she commits vehicular manslaughter in

violation of the Penal Code as to one victim and drunk driving in violation of the Vehicle

Code causing injury to a separate victim. (People v. McFarland (1989) 47 Ca1.3d 798,

803 (McFarland).) Noting the crime of vehicular manslaughter with gross negligence

constitutes a crime of violence against a person, the court held where "a defendant

commits vehicular manslaughter with gross negligence--an act of violence against the

person-he [or she] may properly be punished [for a violation of the Vehicle Code] for

injury to a separate individual that results from the same incident." (Id. at p. 804.)

Here, Dean-Baumann was convicted under count 2 for gross vehicular

manslaughter of Phyllis F. for driving while intoxicated in violation of section 191.5,

subdivision (a). She was convicted under counts 3 and 4 for causing injury to Donald F.

APPENDIX C

under Vehicle Code section 23153, subdivisions (a) and (b), for drunk driving.

Therefore, counts 3 and 4 are not necessarily included offenses of count 2. (McFarland,

supra, 47 Ca1.3d at p. 804.)

The cases cited by Dean-Baumann are single victim cases in which courts have

held a violation of Vehicle Code section 23153, subdivision (a), for driving under the

influence is a necessarily included offense of gross vehicular manslaughter while

intoxicated. (People v. Miranda (1994) 21 Cal.AppAth 1464, 1468; People v. Binkerd

(2007) 155 Cal.AppAth 1143, 1149 ["where one victim dies from an alcohol-related

accident due to a violation of Vehicle Code [section 23153], the Vehicle Code violation

would always be a lesser included offense" of vehicular manslaughter while

intoxicated].) Such cases are inapposite when the charges involve separate victims. The

court properly sentenced Dean-Baumann as to counts 3 and 4 and stayed the punishment

for those counts pursuant to section 654.

APPENDIX C

DISPOSITION

The great bodily injury enhancement accompanying count 2 is stricken. The court

is directed to prepare an amended abstract of judgment reflecting the modification and to

forward the amended abstract to the Department of Corrections and Rehabilitation. In all

other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN,J.

AARON,J.

APPENDIX C

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.