Boegeman v. Smith

CHRISTOPHER BOEGEMAN Petitioner, v. CHRIS SMITH, et al. Respondent.

Case No.: 3:17-cv-00861-GPC-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

June 27, 2018

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS

On April 27, 2017, Petitioner Christopher Boegeman ("Petitioner"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. He challenges his conviction for grand theft in San Diego Superior Court, arguing that errors in jury instructions violated his right to due process. Id. at 6-7. On August 7, 2017, Respondent filed an Answer, Memorandum of Points and Authorities in Support of the Answer, and Lodgments. Dkt. Nos. 6-7. Petitioner did not file a traverse. On March 26, 2018, Magistrate Judge Crawford issued a Report and Recommendation ("Report") advising that this Court deny the petition. Dkt. No. 8. On April 27, 2018, Petitioner filed objections to the Report and Recommendation. Dkt. No. 9.

After a thorough review of the documents presented, trial record, and applicable law, this Court ADOPTS the Magistrate Judge's Report and Recommendation, OVERRULES Petitioner's objections, DENIES the petition for a writ of habeas corpus, and DENIES a certificate of appealability.

I. BACKGROUND

A. FACTUAL BACKGROUND¹

Petitioner and his roommate David Schroeder shared an apartment in Escondido, California. Lodgment No. 1, Dkt. No. 7-1 at 1. Their neighbor, Douglas Goll ("Neighbor"), occasionally bought and sold items for them on eBay. Id. In April of 2014, Petitioner and Schroeder approached the neighbor to discuss buying and selling silver online. Id. Petitioner told the neighbor that if he did not sign for a package when it was delivered, he could claim he never received it and get a refund or free replacement. Id. Schroeder said that he always claimed packages were stolen from his apartment. Id. Petitioner said he once signed his name as Mickey Mouse. Id.

Petitioner and Schroeder then asked the neighbor to bid on a set of silver on eBay. Id. The neighbor purchased the silver for $3,850 with Petitioner's credit card, which Schroeder gave to him. Id. EBay initially accepted the card, but later cancelled the transaction. Id. Sometime later, Schroeder called Dean Gannon ("Victim") about a set of silver flatware Gannon was selling on eBay. Id. After an extensive conversation, the victim agreed to sell the silver to Schroeder and ship it to him. Id. Schroeder paid for the silver with a Visa credit card number. Id. The charge was accepted, and the victim shipped the silver to Petitioner and Schroeder's apartment. Id. at 1-2. The victim also purchased insurance that would reimburse him up to $1,000 plus the cost of shipping if the shipment were lost or damaged. Id. at 2.

On Saturday, April 26, 2014, FedEx delivery person Steven Milner ("FedEx Delivery Person" or "Delivery Person") delivered the silver to Petitioner and Schroeder'sapartment. Id. When the delivery person knocked on the door, Petitioner opened it, identified himself as Schroeder, and signed for the package. Id. Because Petitioner gave the full name of the person on the package and was at the specified delivery address, the FedEx delivery person did not ask for identification. Id. He did testify that he noticed another man in the apartment "just sitting there in the background." Id. He also testified that he had a brief conversation with Petitioner in which he complained about having to work on a Saturday, and Petitioner responded, "at least you have a job." Id. He also claimed he had seen Petitioner on prior occasions when he made deliveries, but that he had never spoken with him before. Id.

On Monday, April 28, 2014, Schroeder called FedEx to report that the silver he had ordered from the victim had not been delivered. Id. at 3. He claims FedEx informed him that it was delivered next door, but when he went to check it was not there. Id. Sometime later, Schroeder called his credit card company and reported that he had not received the silver he had ordered from the victim. Id. at 2. The company then reversed the charge and withdrew the money that had been paid to the victim. Id.

The victim then contacted Scott Tolstad of the Escondido police department, who called a FedEx investigator. Id. The investigator put Tolstad in contact with the FedEx delivery person, who remembered making the delivery and said that he could identify the person who signed for the package. Id. When Tolstad later showed the delivery person a six-pack lineup of DMV photographs—including one photograph of Petitioner and five photographs of men with similar features—the delivery person identified Petitioner as the man who had signed for the package. Id.

At trial, the delivery person testified that a week or two after he delivered the silver to Petitioner, he made another delivery to the same address, but it "was a totally different name." The first two times he attempted to make the delivery, there was a note on the door instructing him to "take it somewhere else." Id. The delivery person did not feel comfortable taking it somewhere else, and attempted to deliver the package to Petitionerand Schroeder's address a third time. Id. This time, the man he had seen sitting in the background of the apartment on April 26 opened the door, and the delivery person asked to see identification. Id. At that point, "the other gentleman came up and was angry that [the delivery person] wouldn't let him sign for it." Id. Both men refused to show identification and one of them eventually closed the door because the delivery person refused to release the package. Id.

Petitioner, on the other hand, testified that he first encountered the delivery person a couple months before April 26, and had three other encounters with him before that weekend. Id. He claims that in the first encounter, he asked the delivery person to leave his packages at the rental office for the apartment complex and to stop leaving them at his door. Id. The delivery person responded that it was "none of [Petitioner's] effing business to tell him how to do his job." Id. Petitioner claims that the second encounter was a "screaming match" and that he told the delivery person he was "really tired of his packages coming up missing and seeing these signs saying that [the delivery person] delivered something when it was never there." Id. The delivery person responded that delivering packages to the rental office was not his job, and that his job was "to throw it there and keep going. He doesn't care." Id. On the third encounter, Petitioner claims that he complained to the delivery person about a package that never showed up. Id. The delivery person said that he had left the package and that Petitioner was ignorant. Id. Petitioner called FedEx corporate and discussed the matter with them. Id. He testified that he and Schroeder had lost about $10,000 worth of missing items as a result of FedEx misplacing their packages. Id.

Petitioner also presented an alibi that he and Schroeder left to Los Angeles on Friday, April 25, 2014, and did not return until Sunday, April 27, 2014. Id. He claims they spent the weekend helping their friend Tanya Williams-Mahee buy merchandise to sell at swap meets. Id. Williams-Mahee corroborated their story. Id. at 3. However, the prosecution called an expert on cellphone records and technology. Id. The investigatorexplained that the cellphone company always knows where a phone is being used because cellphones always send and receive signals from cellphone towers. Id. He testified that all of the phone calls coming from Petitioner's phone that weekend connected to cellphone towers in Escondido and Temecula, not Los Angeles. Id. In surrebuttal, Petitioner claimed that weekend he left his phone with a neighbor who needed it to call her son. Id.

B. PROCEDURAL BACKGROUND

On March 11, 2015, the San Diego District Attorney's office filed a complaint charging Petitioner with one count of grand theft of personal property. Lodgment No. 8, Dkt. No. 7-14 at 7-9. On June 2, 2015, a jury found Petitioner guilty, id. at 93, and the trial court placed him on three years of formal probation,² including 180 days in Sheriff's custody, id. at 107.

On February 15, 2016, Petitioner appealed his conviction to the Court of Appeal of California, Fourth Appellate District. Lodgment No. 2, Dkt. No. 7-2. He argued the trial court: (1) violated his Fourteenth Amendment Right to due process and Sixth Amendment Right to a jury trial by instructing the jury that they could convict him on an aiding and abetting theory of liability without defining the elements of aiding and abetting; (2) violated his Fourteenth Amendment Right to Due Process by instructing the jury on a theory of theft by larceny that was legally invalid because the victim neither possessed nor owned the property when Petitioner took it; and (3) prejudicially erred byadmitting hearsay evidence that went to the credibility of one of the government's witnesses. Id. at 25, 37.

On September 29, 2016, the Court of Appeal affirmed the trial court's decision. Lodgment No. 1, Dkt. No. 7-1. The court concluded that: (1) the failure to instruct on aiding and abetting was harmless because there was no evidence that Petitioner was ignorant of the plan to steal the silver; (2) although the theft by larceny theory was factually invalid, it was harmless because there was no evidence that the jury found him guilty solely on the theft by larceny theory; and (3) the trial court acted within its discretion by properly admitting hearsay evidence under the business records exception to the hearsay rule. Id. at 4-8.

On November 7, 2016, Petitioner filed a petition for review in the California Supreme Court, arguing that: (1) theft by larceny was a legally invalid theory; and (2) the trial court erred by instructing the jury on an aiding and abetting theory of liability without defining the elements of...