Wright v. Hedgpeth, No. CIV S-09-3347 MCE EFB P

• Decision Date: 09 April 2012
• Docket Number: No. CIV S-09-3347 MCE EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: DUNDELL WRIGHT, Petitioner, v. A. HEDGPETH, Respondent.

DUNDELL WRIGHT, Petitioner,

v.A. HEDGPETH, Respondent.

No. CIV S-09-3347 MCE EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: April 9, 2012

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2003 judgment of conviction entered against him in the Sacramento County Superior Court on a charge of second degree murder of a police officer while in the performance of his duties, with an enhancement for use of a firearm. Petitioner raises fifteen separate grounds for federal habeas relief. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background¹

A jury convicted defendant of second degree murder (Pen.Code, § 187, subd. (a), § 189), finding that he personally discharged a firearm in the commission of the offense (Pen.Code, § 12022.53, subd. (d)) and murdered a peace officer in the performance of his duties (Pen.Code, § 190, subd. (c)). The trial court sentenced defendant to state prison for a term of life without parole for the murder, and to 25 years to life for defendant's use of a firearm. Defendant appeals, raising various claims of evidentiary and instructional error. He also challenges the sufficiency of the evidence to support the murder verdict, contends the court erred in denying his change of venue motion, maintains he was deprived of due process when his sentence was increased based on an enhancement that was not alleged in the information, and contends his sentence and the lack of a trial on mitigating circumstances violate equal protection. We shall affirm the judgment.

FACTS

On February 9, 1999, defendant was a "parolee at large," with a warrant out for his arrest based on his failure to report to his parole agent. As conditions of his parole he could not possess any weapons and was required to submit to monthly drug testing. On November 2, 1998, defendant gave a urine sample and told his parole officer he was not sure it would be clean. Defendant did not contact his parole agent as required after the test. In February 1999, the parole agent saw defendant at the Arden Fair Mall and told him to come to the parole office and work it out. It was "not a big deal."

Two days later, on February 9, 1999, defendant, while in possession of a firearm, rented an Oldsmobile Cutlass from Robert Mapp. He used cocaine as payment. Mapp gave defendant a written note confirming that he had rented the car to defendant. Minutes after defendant drove away with the car, Mapp heard gunshots. Defendant had fatally shot Sacramento Police Officer William Bean, Jr., while Bean was on patrol in Del Paso Heights.

The evening of February 9, 1999, Officers David Hogge and Bean were working a routine shift in Del Paso Heights and had spent much of the evening running the license plate numbers of various vehicles to see if they were stolen. At 8:17 p.m., they observed a car being driven by defendant, ran the license plate number and discovered the vehicle was not stolen; it belonged to a couple in Elverta. Suspicious, Hogge looked for equipment violations andnoticed that the windshield was cracked, and that the crack extended from the driver's side across toward the passenger's side. Based on the windshield crack, the officers decided to stop the vehicle.

Hogge, who was driving, turned on the overhead lights and defendant pulled over. Hogge approached defendant while Bean provided cover. Hogge asked defendant who owned the car, and defendant replied he had permission from a friend to drive it and showed Hogge the note from Mapp. Defendant identified himself as Christopher Wright and denied having any identification or a driver's license. The officers asked defendant to get out of the car. When Hogge took a step back to give defendant room to exit, defendant slammed the gearshift into drive and sped away.

The officers ran back to their car and gave chase, activating their lights and siren, and notifying dispatch that they were involved in a pursuit. Hogge noticed that defendant's car was slowing down; it coasted through a stop sign. Suspecting that defendant might have stalled the car, Hogge turned off the siren to listen for defendant's motor. It sounded as if the engine was not running and defendant was attempting to restart the car.

The officers followed defendant until he pulled his vehicle next to an open field. Anticipating that they would have to chase defendant, Hogge asked Bean, "Do you got [ sic ] him Bill?" Hogge saw defendant open his car door and heard Bean cracking open his car door. Defendant had a gun in his hand, and Hogge yelled "gun" to alert Bean to the danger. Hogge, who thought he had placed the car into park, got out, stayed low and heard several shots to the right. He heard four to seven shots when defendant got out of his car. Hogge realized his car was not in park as it was still moving, which meant he could not use the car for cover. Hogge then noticed that Bean was lying on the ground on his back, pleading, "Oh God, oh God, help me."

Hogge spotted defendant running northbound and began to chase him, shooting as he ran. He also used his hand radio to report that Bean had been shot and needed an ambulance. Hogge saw defendant run between a house and a vehicle before Hogge lost sight of him. He formed part of a perimeter by standing at a nearby corner and when other officers arrived, Hogge pointed out defendant's last location. A sergeant informed Hogge that they needed to pull him from the scene.

When Sergeant Timothy Hunter responded to the scene, he discovered Bean was not moving and was unresponsive. He called for life flight. Bean's gun was still in his holster and was fully loaded, indicating it had not been fired. Hunter testified Hogge was upset, but in control.

Around 1:30 a.m., Sergeant David Kidd and SWAT team members located defendant hiding in a backyard with a nine-millimeter Glock handgun at his feet.

Detective Toni Winfield was a lead investigator of the shooting. She interviewed Hogge around 11:45 p.m. the night of the shooting. She observed that Hogge was devastated; he had a difficult time with his words, was emotionless, and appeared to be in shock. When Winfield learned that a suspect had been apprehended, she took Hogge for an in-field identification. Hogge positively identified defendant as the man who shot Bean. Hogge told Winfield he shot while he was in the field, but he was confused and struggling. Another officer reported Hogge said, "Oh God, I don't remember now for sure if I saw a gun or not." It was unclear exactly the time frame to which Hogge was referring.

Hogge surrendered his Sig Sauer .226, nine-millimeter semiautomatic handgun and magazine to Sergeant Richard Gardella. Gardella determined that seven rounds were missing.

Winfield's partner, Detective Jeffrey Gardner, was in charge of the crime scene investigation. When he arrived at the scene, he noticed that Hogge's patrol car had come to rest against a street sign, and the lights were still on. The car was in drive. Defendant's vehicle was stopped on the sidewalk and the front passenger door had a partially shattered window.

Gardner took control of the Glock handgun that had been found near defendant. It had a scratched out serial number, a live round in the chamber, and two other rounds in the magazine. Officers found nine shell casings; four were near defendant's car and five were in the nearby field, three of which were on the north side of defendant's car. According to Gardner, six casings came from Hogge's gun and three were from the Glock. Of the three shots from the Glock, one bullet went through the window of defendant's car, one went into a house across the street, and one killed Bean.

Defendant had gunshot residue on his right hand, which indicated he had fired a weapon or handled one that had recently been fired.

Bean died from a gunshot wound to the chest. The trajectory of the bullet was downwards. The bullet entered the back of Bean's left tricep, went through the muscle to the thoracic cavity, fracturing a rib, then traveled to his lung lobe, severing the aorta and striking the spinal column. It then hit the azygos vein and traveled to the lower lung lobe, fracturing another rib. It was an unsurvivable injury. Once the cardiovascular system is breached, blood pressure drops to zero, and the patient has about 10 to 15 seconds of cerebral function and, in this case, instant paralysis from the waist down.

Bruce Moran, a criminalist and expert in firearms, tool marks, and crime scene reconstruction, opined three of the discovered shell casings were fired from the retrieved Glock. Due to the poor reproducing identifiable marks of polygonal rifled bores, he was unable to positively identify the Glock as the gun that fired the fatal shot, but it could not be eliminated. He was able to eliminate Hogge's weapon as firing the fatal shot. Although he originally believed the Glock had been fired from inside the car, he ultimately concluded it was fired from outside. The most practical scenario was that the shot that hit defendant's car was fired from about 12 feet away. Two shots from the Glock were fired close together; either the shooter was stationary or not moving much. The shell casing from what was probably the fatal shot was not found where it should be if the shooter had just stepped from the car, but the casing could have been inadvertently moved. Moran found nothing that was inconsistent with the defense theory that defendant got out of the car, ran into the field, Hogge fired four shots, defendant returned fire and fell, got up and fired twice more.

Hogge had been involved in a prior shooting of a man named Scott Allen in 1994. Hogge described the incident. He had his neighbor with him on a ride-along one night. Two white males drove by

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