FINDINGS AND RECOMMENDATIONS
Petitioner, Craig A. Wright, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of twelve years following his 2008 no contest plea to attempted murder with the admission of a penalty enhancement for great bodily injury. Here, Petitioner challenges the constitutionality of his conviction.
Petitioner presents several grounds for relief. Specifically, the claims are as follow:
(1) The trial court violated his due process rights by sentencing him to a longer sentence than specified in his plea agreement.
(2) Both trial and appellate counsel rendered prejudicially ineffective assistance.
(3) The trial court violated his rights under Cunningham v. California, 549 U.S. 270 (2007), by imposing the upper term sentence based on an aggravating factor not submitted to a jury and proven beyond a reasonable doubt.
(4) The trial court denied his constitutional right to be present and participate in his own defense during his January 26, 2006 competency hearing, a critical stage in the proceedings.
Based on a thorough review of the record and applicable law, it is recommended that each of Petitioner's claims be denied.
The basic facts of Petitioner's crime were summarized in the February 2008 presentence report filed in the Solano County Superior Court:
[On October 23, 2001], [p]olice were dispatched to the hospital in regards to an assault. The victim was assaulted by her boyfriend, the defendant, and taken to a hospital in Antioch. Her condition became worse and she was unconscious and bleeding on the brain. She was transported to John Muir Hospital in Walnut Creek. Her condition stabilized enough that she was able to talk with police. She stated that she had been dating the defendant for two and a half months. He had been staying with her for the past week and a half prior to the offense. The victim stated that the defendant has an eight year old daughter in Fairfield. She related that she had been arguing with the defendant because he thought she was still together with her ex-boyfriend. She went into the bedroom to watch television and the defendant followed her. He then punched her in the face while she was sitting on the bed. She added that the defendant is an ex-professional boxer. He told the victim that he was going to kill her and repeatedly punched her in the face. She tried to fight back, but the defendant kept punching her, knocking her off the bed. She was knocked unconscious, and the next thing she remembered was the defendant telling her that she needed to get up so he could take her to the hospital. The victim reiterated that she thought the defendant was trying to kill her. She said that the defendant took her inside of the hospital and then left in his car. Pictures were taken of the victim's injuries, which included a swollen cheek and both of her eyes were bruised and swollen shut. Medical records indicated that the victim has a prior history of a head injury in which there was a blood clot on her brain. A craniotomy was performed in 1992 and she is on disability. In this case, she had a soft tissue contusion, cerebral contusion, concussion, broken blood vessels in her eyes and intracranial hemorrhage. An E.P.O. was granted to the victim. D.O.J. was contacted and confirmed that the defendant has a substantial history of violence dating back to 1978. A warrant was issued for the defendant's arrest. He was subsequently arrested at the Niereka House, a self-committal crisis facility. On 10-26-01, the victim's daughter called the police and indicated that defendant called her from jail to tell her that he was sorry for what he did to the victim. . . . . [The defendant] reported that on the day of the offense, he had taken insulin for his diabetes that had been kept in his vehicle for a couple of weeks. He stated that his insulin was not working. He went to a friend's house, where he consumed at least one beer (in an attempt to raise his blood sugar). He then went to a donut shop and subsequently consumed about 6 donuts before driving to the victim's house. He stated that he had seen the victim with an ex-boyfriend within the prior week, and was upset. He stated that while at the victim's house, he told her he was going to leave and called her a "slut". He then was "struck" by something. He stated that he was in insulin shock at the time, and does not recall what happened after that. He stated that he is "not trying to make an excuse for what happened, because obviously something did happen." He stated that he found himself "in the icebox, eating cookies and drinking juice." He said that he began feeling pain in his hands and on his face, and realized that "something must have happened." He then ran into the room and found the victim on the floor. He then took her to the hospital, where he wanted to stay with her. He said that he left because the security guard informed him that he would have to call the police if the defendant didn't leave. . . . .
The victim reported that on the day of the offense, she remembers the defendant smelling of alcohol when he came over. She said that the defendant was trying to talk her out of breaking up with him, and when that didn't work, he resorted to violence. She said that she remembers him telling her "if I can't have you, nobody will." He then began punching her. She said that she did the best she could to fight back, and to just survive. She remembers him nudging her several times while in the car, indicating to her that she kept losing consciousness. She said that once they arrived at the hospital, she was just trying to stay alert until she got out of the car and into the care of the hospital staff. She stated that he had told her that if she told anyone what he did, he would kill her.
The procedural history leading up to Petitioner's conviction was summarized on direct appeal by the California Court of Appeal, First Appellate District, as follows:
On January 30, 2002, appellant pleaded no contest to one felony count of attempted murder (Pen. Code, §§ 664/187, subd. (a), further references are to the Penal Code unless otherwise specified). Initially, appellant had been charged with three felony counts arising from an incident on October 23, 2001. Count one was a felony count of attempted murder (§§ 664/187 subd. (a)), count two was a felony count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), and count three was a felony count of corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)). Counts one and three were serious felonies within the meaning of section 1192.7, subdivision (c)(8).
Appellant has a history of filing motions pursuant to People v. Marsden (1970) 2 Cal.3d 118. Over the course of the proceedings, he filed over 20 Marsden motions and changed attorneys several times. Appellant filed his first Marsden motion following his initial plea of not guilty on October 31, 2001. The court denied the motion on December 5, 2001, but a subsequent Marsden motion was granted on December 21, 2001. New counsel was appointed prior to appellant's change of plea on January 30, 2002.
The January 30 plea agreement was entered into prior to the preliminary hearing, and by its terms appellant pled no contest to count one and accepted an indicated sentence of 10 years in state prison. The prosecution moved to dismiss the other charges. The trial court admonished appellant regarding his rights and found that appellant's admission was freely, intelligently, and voluntarily made and that the factual basis for the plea was established by stipulation. On April 18, 2002, the prosecution requested that the plea bargain be withdrawn and the plea set aside. The court granted the motion. On April 22, 2002, the court also granted appellant's third Marsden motion and appointed new counsel on April 24, 2002. On May 15, 2002, the prosecution amended the complaint to reflect an additional allegation that appellant had two serious prior felony convictions in Contra Costa County.
During the subsequent preliminary hearing, on August 1, 2002, appellant was held to answer on counts one (§§ 664/187) and two (§ 245, subd. (a)(1)). Count three, (§ 243, subd. (d))) was dismissed at the request of the prosecution. On August 7, 2002, the prosecutor filed an information with charges identical to the amended May 15, 2002 complaint. Subsequently, appellant filed three more Marsden motions, two of which were granted.
On September 2, 2003, appellant made another Marsden motion. However, the court deferred ruling on the motion and suspended criminal proceedings against appellant pending a section 1368 competency evaluation. The court appointed two psychologists to evaluate appellant's competency to stand trial. While the court waited for the results of the psychological examination, appellant filed another Marsden motion, which was granted on October 28, 2003. New counsel was appointed on October 29, 2003, and appellant immediately filed another Marsden motion, which was denied on November 6, 2003.
Also on November 6, 2003, the trial court reviewed the psychologists' reports and found appellant "not competent" within the meaning of Penal Code section 1368. On December 10, 2003, appellant was committed to Napa State Hospital. On the same date, the court denied a subsequent Marsden motion. On June 2, 2004, the court granted another Marsden motion and counsel was replaced on June 4, 2004.
On July 19, 2004, the court denied appellant's next Marsden motion as being without grounds. On September 1, 2004, appellant's counsel sought to be relieved because appellant refused to speak with the attorney; and the court denied the request. A subsequent Marsden motion was granted on September 29, 2004, and new counsel was appointed on October 5, 2004. On October 14, 2004, appellant filed a new Marsden motion, which was denied after a hearing the following day.
On October 19, 2004, court proceedings were again suspended and doctors were appointed to evaluate appellant pursuant to section 1368. On December 8, 2004, the court reviewed the doctors' reports and found appellant "not competent." The court denied appellant's next Marsden motion on December 13, 2004; and on January 12, ...