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Voravong v. McDonald

October 6, 2010

MICHAEL VORAVONG, PETITIONER,
v.
M. MCDONALD, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND*fn1

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, Hon. Edward Sarkisian presiding, following his conviction by jury trial on August 6, 2007, of unlawful possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)), carrying a concealed weapon on his person (Cal. Penal Code § 12025(a)(2)), carrying a loaded firearm (Cal. Penal Code § 12031(a)(1)), and resisting, delaying or obstructing a peace officer (Cal. Penal Code § 148(a)(1)). Allegations that Petitioner had suffered a prior serious felony conviction and that Petitioner had served three prior prison terms for felony convictions pursuant to California's Three Strikes Law were found to be true. Petitioner was sentenced to serve a determinate term of four years in state prison.

Petitioner filed a timely notice of appeal. On December 1, 2008, the California Court of Appeal, Fifth Appellate District (hereinafter "Fifth DCA") affirmed Petitioner's judgment in all respects. He then filed a petition for review in the California Supreme Court. The petition was summarily denied on March 11, 2009.

On December 28, 2009, Petitioner filed the instant federal habeas petition. He claims he was denied his constitutional right to a fair trial based on juror misconduct and bias. On May 12, 2010, Respondent filed an answer to the petition. Petitioner did not file a traverse.

STATEMENT OF FACTS*fn2

Facts

On April 13, 2007, City of Fresno Police Officers Justin Hoagland and David Fenstermaker, responding to a complaint about a loud party, arrived at an apartment complex in Fresno. The complex was located in a "high ... crime" area.

The officers, who were both in uniform, parked their patrol vehicle and walked into the complex, where they observed appellant and another person standing near a fence; appellant and his companion appeared to be urinating. Officer Hoagland shone his flashlight on appellant, and appellant, who appeared to be startled, quickly began pulling his pants up. At that point, Officer Hoagland said, "Don't run, police[,][s]top, police," or words to that effect, but appellant and his companion ran off into a field.

The two officers gave chase, with Officer Hoagland in the lead. Appellant, at a point approximately 10 to 15 feet from where he began running, stopped and dropped to one knee. His left hand also went to the ground. Appellant then "pivoted" and ran off in a different direction.

At the point appellant went down on one knee, Officer Hoagland could not tell if appellant simply stopped on his own accord or if he tripped and fell. Officer Hoagland was approximately 10 to 15 feet from appellant; it was dark; and there was no lighting in the field, aside from the light coming from the apartment complex. Officer Fenstermaker, who was behind his partner, did not see anything in appellant's hands. Officer Hoagland testified that "[i]t appeared ... [appellant] may have been discarding an item." The officer testified further, "It has been my experience that whenever there's an action like that from a subject I'm chasing on foot it's pretty consistent that the subject is discarding some kind of contraband," such as a weapon or drugs. Officer Fenstermaker testified, "It appeared that [appellant] was placing an item down on the ground with his right hand."

When appellant pivoted and ran off, Officer Hoagland continued to pursue him, shouting at him to stop. Appellant abruptly stopped running. Officer Hoagland yelled out to appellant, directing him to show his hands. As the officer approached appellant, he (the officer) still could not see appellant's hands and, fearing that appellant had a weapon, the officer struck appellant in the face with his forearm and forced him to the ground. Appellant offered no resistance, and Officer Hoagland was able to handcuff him.

At that point, Officer Fenstermaker approached, and Office Hoagland saw appellant's companion jumping over a fence in another part of the field. Officer Hoagland directed Officer Fenstermaker to go after the second person. Officer Fenstermaker subsequently apprehended that person, a juvenile.

Approximately two minutes after taking appellant into custody, Officer Hoagland walked back to the spot where appellant had dropped to one knee. There, in some tall grass, he found a loaded semi-automatic handgun. Officer Hoagland testified there was "nothing on [the gun]." Although the grass was "slightly moist" with condensation, the gun was dry and had no rust "that appeared to be from ... any kind of moisture," and no grime or grass on it. Officer Fenstermaker, however, testified the gun had rust on it and looked "dirty and unoiled."

After he found the gun, Officer Hoagland asked appellant "if he had any weapons or dropped any weapons in the field." Although the officer did not use the word "handgun," appellant responded that he "'didn't have a handgun.'"

At the time he was taken into custody, appellant had a gray bandanna hanging out of the back pocket of his pants and he did not have gloves.

Valerie Maffei testified to the following. She is an "identification technician" employed by the Fresno Police Department, and her duties include "processing evidence for latent fingerprints, and doing fingerprint comparisons." In examining the gun found in the field she found no full fingerprints, partial fingerprints or "smudges." The gun was "clean." The barrel of the gun was made of a "particular metal" that is "not really conducive to leaving fingerprints." It is "possible" for a person to leave a fingerprint on that surface, but "not probable." The handle of the gun was made of metal and plastic. There is a "50/50 chance" of obtaining a fingerprint from that surface.

Procedural Background

Prior to the presentation of any evidence, and outside the presence of the jury, the defense moved, pursuant to Evidence Code section 352, to exclude evidence that the area where appellant was taken into custody was a "hot spot for ... members" of a particular criminal street gang, appellant's clothing was "representative of a criminal street gang" and appellant had "previous involvement" in a gang, on the grounds the evidence was "inflammatory and ... has no probative value."*fn3 The court stated it was inclined to exclude the evidence on undue prejudice grounds but would defer ruling until the evidence was presented, because the court could not intelligently rule on the matter unless it did so at a ...


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