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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 JANICE DEUTSCH, ) N O . E D C V 1 9 - 8 2 4 - J L S ( K S) 11 Petitioner, ) 12 ) v. ORDER ACCEPTING FINDINGS AND ) 13 ) RECOMMENDATIONS OF UNITED 14 RICK HILL, Warden, ) STATES MAGISTRATE JUDGE ) 15 Respondent. ) 16 _________________________________ )

17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas 20 Corpus, all the records herein, and the Report and Recommendation of United States 21 Magistrate Judge (“Report”). Further, the Court has engaged in a de novo review of those 22 portions of the Report to which Petitioner has raised objections. Pertinent objections are 23 addressed below. Petitioner’s objections are overruled. 24 25 In Ground One, Petitioner objects that her right to compulsory process was violated 26 because the victim did not testify at trial. (Dkt. No. 25 at 7-10.) As stated in the Report, 27 however, Petitioner waived her right to compulsory process when her defense counsel elected 28 1 not to call the victim as a witness at trial. (2 Reporter’s Transcript (“RT”) 446.) Petitioner 2 does not dispute defense counsel’s waiver. 3 4 In Ground Two, Petitioner objects that her right to equal protection was violated when 5 the victim’s injuries were photographed in the hospital without consent. (Dkt. No. 25 at 11- 6 12.) As discussed in the Report, Petitioner did not meet her burden of showing that the alleged 7 violation of state law in obtaining the photographs was the result of intentional or purposeful 8 discrimination. Although Petitioner argues that current hospital practices for evidence 9 collection in Southern California are more protective of patients’ privacy (id. at 12), this does 10 not show intentional or purposeful discrimination. It is inapt to compare current hospital 11 practices throughout Southern California with how the victim’s injuries were photographed in 12 a Mission Viejo hospital in late 2012. See Rosenbaum v. City and Cnty. of San Francisco, 484 13 F.3d 1142, 1153-54 (9th Cir. 2007) (holding that an “undifferentiated control group” from 14 dissimilar times and places was insufficient to demonstrate discriminatory treatment). 15 16 In Ground Three, Petitioner objects that her defense counsel did not have adequate time 17 to prepare for trial. (Dkt. No. 26 at 1-2.) Specifically, the trial court denied a continuance for 18 a hearing pursuant to California Evidence Code § 402 to determine the admissibility of the 19 victim’s videotaped statement to investigators. As discussed in the Report, the denial of a 20 continuance did not violate due process because Petitioner’s defense counsel failed to prepare 21 for the hearing and ultimately failed to object to the admission of the videotape. Most 22 significantly, the videotape of the victim did not result in prejudice because the victim had 23 nothing but positive things to say about Petitioner. 24 25 In Ground Four, Petitioner objects that deadlines were violated during her state habeas 26 proceeding. (Dkt. No. 26 at 3-4.) Because claims of errors during the review process in a 27 state habeas proceeding are not addressable through federal habeas corpus, this claim is not 28 cognizable. Petitioner’s reliance on United States v. Locke, 471 U.S. 84 (1985), a case 1 involving deadlines for federal mining claims, is unavailing. Locke says nothing about the 2 authority of a federal habeas court to grant relief for a missed deadline, set by state law, in a 3 collateral proceeding in a state habeas court. Rather, a federal habeas court has no authority 4 to grant habeas relief for the alleged violation of state laws. See Estelle v. McGuire, 502 U.S. 5 62, 67 (1991). 6 7 In Ground Five, Petitioner objects that the trial court erred in instructing the jury on 8 criminal negligence for the crime of elder abuse. (Dkt. No. 26 at 5-8.) Petitioner argues for 9 the first time that, after her trial ended, the trial court violated her constitutional rights by 10 sending information to the prison that Petitioner’s acts involved not merely criminal 11 negligence, but violence that was inflicted intentionally, thereby rendering Petitioner ineligible 12 for post-conviction sentencing relief. (Id. at 5-6.) This objection is unavailing because it has 13 nothing to do with whether the instructions given during Petitioner’s trial were correct or 14 whether her judgment of conviction was constitutionally infirm. 15 16 Moreover, Petitioner objects that the instructional error prejudiced her because she 17 currently is serving a five-year sentence enhancement for intentional violence, not merely 18 criminal negligence. (Id. at 7-8.) Although Petitioner did not clearly state this claim in the 19 Petition, it does not warrant habeas relief. Petitioner received a five-year sentence 20 enhancement for the personal infliction of great bodily injury on an elder, in violation of 21 California Penal Code § 12022.7(c). (2 RT 520-21; 3 RT 660.) Contrary to Petitioner’s 22 assertion, the enhancement did not require intentional violence. As the California Court of 23 Appeal explained (in rejecting a similar claim of insufficiency of the evidence), the sentence 24 enhancement was supported by the evidence before the jury because Petitioner failed to act, 25 despite having a duty of care and custody for the victim, so as to prevent the victim’s injuries. 26 (Lodgment No. 6 at 9-11 (citing People v. Warwick, 182 Cal. App. 4th 788, 794-95 (2010).) 27 For similar reasons, Petitioner did not have a right to a jury instruction that the injury upon the 28 victim must be willfully inflicted. 1 ORDER 2 3 IT IS ORDERED that: (1) the Petition is denied; and (2) Judgment shall be entered 4 || dismissing this action with prejudice. 5 6 || DATED: May 04, 2020 7 | 8 JOSEPHINE L. STATON 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28