Oliva v. Hedgpeth

• Decision Date: 09 February 2009
• Docket Number: No. CV 08-3772-ODW (E).,CV 08-3772-ODW (E).
• Citation: 600 F.Supp.2d 1067
• Court: U.S. District Court — Central District of California
• Parties: David Pineda OLIVA, Petitioner, v. Anthony HEDGPETH, Respondent.

600 F.Supp.2d 1067

David Pineda OLIVA, Petitioner, v. Anthony HEDGPETH, Respondent.

No. CV 08-3772-ODW (E).

United States District Court, C.D. California.

February 9, 2009.

COPYRIGHT MATERIAL OMITTED

Marilee Marshall, Marilee Marshall & Associates, Los Angeles, CA, for Petitioner.

Marc A. Kohm, CAAG—Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, COCLUSIONS AND RECOMMENDTIONS OF UNITED STATES MAISTRATE JUDGE

OTIS D. WRIGHT, II, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that the Petition is conditionally granted. Respondent shall discharge Petitioner from all adverse consequences of the judgment in Superior Court action No. BA248106, unless Petitioner is brought to retrial within ninety (90) days of the entry of Judgment herein, plus any additional delay authorized under State law.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner, counsel for Petitioner, and counsel for Respondent.

LET JUDGMENT BE ENTERED ACORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on June 9, 2008, accompanied by a Memorandum of Points and Authorities ("Pet. Mem."). Respondent filed an Answer on September 2, 2008. Petitioner filed a Reply on October 13, 2008.

BACKGROUND

A jury found Petitioner guilty of the first degree murder of Jeovanni Acosta¹ in violation of California Penal Code section 187(a) (Reporter's Transcript ["R.T."] 858-59; Clerk's Transcript ["C.T."] 181-83). The jury found true the allegations that Petitioner: (1) personally used a firearm within the meaning of California Penal Code section 12022.53(b); (2) personally and intentionally discharged a firearm within the meaning of California Penal Code section 12022.53(c); and (3) personally and intentionally discharged a firearm which proximately caused great bodily injury and death to Jeovanni Acosta within the meaning of California Penal Code section 12022.53(d) (R.T. 858-59; C.T. 181-83). Petitioner received a sentence of fifty years to life (R.T. 885-87; C.T. 257-28).

Petitioner appealed, and also filed a companion habeas petition in the California Court of Appeal (Respondent's Lodgments 3, 6). The Court of Appeal affirmed the judgment and denied the habeas petition (Respondent's Lodgment 7); see People v. Oliva, 2006 WL 3825072 (Cal.Ct. App.2d Dist. Dec. 29, 2006). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 11).

SUMMARY OF TRIAL EVIDENCE

I. Prosecution's Evidence

A. Testimony of Ralph Seaton

Ralph Seaton testified as follows:

Sometime between 5:00 and 6:00 p.m. on October 5, 2002, Seaton stopped at a stop light in his brown car (R.T. 219-20). Seaton lived in the neighborhood and had seen drug transactions at that particular corner (R.T. 218, 226-27, 247).

Seaton heard a sound "like firecrackers going off (R.T. 221). Seaton saw a car going very slowly through the intersection (R.T. 221). Seaton saw a person straddling a bicycle next to the car (R.T. 221, 224). The person on the bicycle leaned toward the driver's side of the car, and Seaton saw that the person was holding a gun sideways and pointing the gun into the car (R.T. 221-23). Seaton heard more shots (R.T. 221). The car moved ahead and struck Seaton's car (R.T. 223-26). Seaton did not see the man on the bicycle again (R.T. 225). Seaton exited his car, looked into the other car, saw the victim lying on the seat, and saw a considerable amount of blood (R.T. 226, 238). Seaton had never seen the victim before (R.T. 226, 238).

At trial, Seaton could not describe the man on the bicycle, and said he did not pay attention to the man's features (R.T. 244-45, 248). Seaton did not recall telling police the man was a male Hispanic with a medium complexion, dark hair and dark clothing (R.T. 228-29). On cross-examination, Seaton said that he did not recognize Petitioner, and that he, Seaton, could not say whether he saw Petitioner at the intersection that evening or not (R.T. 247-48). On redirect, Seaton said Petitioner "definitely could have been" at the intersection that night (R.T. 248).

B. Testimony of Maria Cardenas

Maria Cardenas testified as follows:

On the day of the shooting, Maria Cardenas and her two children were visiting Cardenas' mother (R.T. 548-49). At approximately 6:00 p.m., Cardenas was outside putting her children in her van to go home when she noticed approximately five young male Hispanics on bicycles on the corner across the street (R.T. 549-51, 582). One of the bicyclists was in the intersection riding in circles, yelling and waving his right hand in the air (R.T. 551-55). Cardenas was not sure if the person had anything in the hand he was waving (R.T. 554). The person was wearing belowthe-knee shorts and a dark jersey-type shirt with stripes near the ends of the sleeves (R.T. 577-79). Cardenas thought he was a teenager from the way he was dressed (R.T. 582).

The other bicyclists disappeared (R.T. 555, 577). Cardenas saw the remaining bicyclist head down the street, and then heard a shot (R.T. 556). Cardenas told her children to go into the house (R.T. 556). Cardenas saw a car driving very slowly (R.T. 556). The car's occupant went down and looked dead (R.T. 556, 559). The car hit a brown car driven by an older man (R.T. 557). Cardenas did not see the person on the bicycle again (R.T. 558).

Cardenas testified that, as the person circled near Cardenas, she got a good look at him (R.T. 576). Cardenas said that she was "staring at the scene," and that "[u]nfortunately, [she] did look at his face" (R.T. 579). However, Cardenas said she testified truthfully at the preliminary hearing that she did not get a good look at the bicyclist's face because she was nearsighted (R.T. 580). Cardenas said she always wore glasses (R.T. 581-82).

Cardenas admitted describing the person on the bicycle to police as having a shaved head, but said she meant that he had very short hair (R.T. 582-83). Cardenas told police the person was between the ages of 18 and 25 and had no facial hair (R.T. 585).

Asked whether the person she saw riding the bicycle in the middle of the intersection was in court, Cardenas said "I think so" (R.T. 560). The judge asked: "Is there anyone in here who you believe is the individual?" (R.T. 560). Cardenas said: "I don't know" (R.T. 560). Asked whether there was someone in the courtroom whom Cardenas thought was the person on the bicycle, Cardenas then identified Petitioner (R.T. 560). Cardenas had never seen Petitioner before the day of the shooting (R.T. 561). Petitioner looked different in court because he was thinner and had a mustache and more hair (R.T. 562).

On October 18, 2002, Detective Baker had shown Cardenas a series of photographs (R.T. 563). Prior to doing so, Baker told Cardenas that the person on the bicycle might or might not be depicted in the photo lineup (R.T. 563, 590). Cardenas identified Petitioner and circled his picture (R.T. 564). Cardenas wrote: "Number 3 is the person that to me looks like the guy on the bike before the shooting. He was light skinned Hispanic. He was heavy set and short. Hair black or dark brown." (R.T. 567). Cardenas said that, although Petitioner looked different in court because Petitioner was thinner and had more hair and more facial hair, Petitioner looked the same as the person she saw on the bicycle (R.T. 564-66). Cardenas said she also identified Petitioner by the back of his neck and his shoulders (R.T. 566).

On cross-examination, Cardenas said that, when she picked Petitioner's photograph from the photo lineup, she told the detectives that she was not certain (R.T. 588-89). The photo lineup appeared to show three older men and two younger men (R.T. 603). Cardenas said she wavered between the photograph of Petitioner and a photograph from another photo lineup, but finally chose that of Petitioner because he looked more like the person she saw on the bicycle that day (R.T. 589, 592, 605). Cardenas admitting telling the detectives that she chose Petitioner's photograph because of the shape of the face and shoulders (R.T. 591). Cardenas explained that she had not wanted to say anything, but knew she had to do so, and told the detectives she was afraid and did not want to put the wrong person in jail (R.T. 588-89, 592). When Petitioner's counsel asked: "You simply cannot say with any certainty that [Petitioner] is the person that you saw on the bike, can you?", Cardenas responded: "I don't know because he's thin. He's sitting down right now and his hair is different. The shape of his face is different. It looks like he's thinner. And—I don't know." (R.T. 592-93). Petitioner's counsel then asked: "So, Ms. Cardenas, it's true that even today you are not certain whether this was the individual?" (R.T. 595). Cardenas replied: "I don't know" (R.T. 595).

On redirect, the prosecutor said "... you saw him [Petitioner] in the intersection that day?" and Cardenas responded: "yes" (R.T. 601).

C. Testimony of E.R.

E.R., Cardenas' niece, was a six-year-old first grader at the time of the incident (R.T. 480, 482, 571). E.R. and her cousin A.R. were playing outside at the home of E.R.'s grandmother on the day in question (R.T. 482-83). E.R. said she saw a...