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Dundell Wright v. A. Hedgpeth

April 9, 2012

DUNDELL WRIGHT, PETITIONER,
v.
A. HEDGPETH, RESPONDENT.



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 Background*fn1

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 and noticed 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 and the driver either "flipped [Hogge] off" or mouthed "F-you." Hogge made a U-turn, saw an equipment violation, and attempted to pull the car over. The car sped off at a high rate of speed and eventually turned into a court where it ran into a mailbox cluster. When Hogge stepped out of his car, he saw a muzzle flash. He yelled "gun, shotgun" to his ride-along. The driver charged Hogge, firing. Hogge shot him several times, although he did not remember shooting. He was finally able to get his radio and call for backup. When Hogge returned to the scene later, it was not as he remembered it; he did not recall returning fire right away. Hogge explained that when someone is shooting at him, the adrenaline rush of police work is gone; he shuts down and his training takes over. He does not think; he simply reacts.

The defense called several people who lived near the shooting. They testified they heard three or four rapid shots that night. One neighbor testified she heard arguing, then shooting.

Defendant testified on his own behalf. He denied knowing that he was a parolee at large. He owned a nine-millimeter Glock although he knew he was not permitted to own weapons. At about 8:00 pm on February 9, he was driving down Grand Avenue when the police stopped him. He had the gun in his waistband. Hogge asked him who owned the car and defendant gave him the note. Bean said, "let's go," but Hogge was upset. He told Bean to cover him. Hogge said, "I could kill this motherfucker and it would be one less nigger society would have to deal with." Bean said, "get the hell out of here." When Hogge stepped back from the car, defendant took off.

At the second stop, the officers got out first. Defendant got out and walked towards the officers "to see what the problem was." He heard screaming; Bean said to Hogge, "What the hell is your problem? What are you doing?" Defendant took off running. Hogge fired at him. Defendant ducked, pulled out his gun and fired. He ran into the field and fell, getting mud on his pants. He got up and ran. Hogge fired again and defendant returned two shots. Hogge fired two or three more times while defendant ran. Defendant did not mean to shoot anyone; he was positive that Hogge shot first.

John Thornton, a forensic scientist and expert on crime scene reconstruction, testified for the defense. He did an ejection pattern test on Hogge's gun; the Sig Sauer had a more consistent ejection pattern than the Glock. Thornton agreed with Moran's findings on the shell casings; three were from the Glock and six from the Sig Sauer. He believed the car defendant was driving was moved after the shooting, based on the location of the broken glass from the passenger window. In his opinion, the physical evidence was not consistent with Hogge's testimony that he heard four to seven shots within one or two seconds after defendant got out of the car. One cartridge from the Glock was near a lamp post and two were in the field. If the neighbors' testimony about three or four shots in rapid succession was true, he could rule out the Glock as the source of those shots. Thornton agreed the fatal shot came from the Glock. He could not say if four shots from the Sig Sauer were fired in rapid succession; there was some movement of the shooter. Thornton agreed there were a number of plausible explanations for where the shell casings ended up, including the possibility that someone kicked them.

The prosecution argued the case came down to whom the jury believed: Hogge or defendant. Although Hogge was mistaken about the number of shots defendant fired, the prosecutor argued he was more credible. Defendant's version of events, especially that he walked towards the officers when he got out of his car, did not match the testimony of the defense expert Thornton.

The defense was self-defense, that Hogge fired first and then lied about what happened that night.

The jury deliberated over seven days. The jury asked several questions, and at one point appeared deadlocked. After further instruction and a few more days of deliberation, the jury reached its verdict.

Dckt. No. 18 at 99-108.

II. Procedural Background

Petitioner filed a timely appeal of his conviction in the California Court of Appeal for the Third Appellate District. Resp.'s Lodg. Docs. 1, 2, 3. Therein, he raised the first eleven claims contained in the instant petition. Id. The Court of Appeal affirmed petitioner's judgment of conviction in its entirety in a reasoned decision on the merits of petitioner's claims. Resp.'s Lodg. Doc. 7. On August 1, 2007, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. 8. That petition was summarily denied by order dated October 17, 2007. Resp.'s Lodg. Doc. 9.

On January 6, 2009, petitioner filed a petition for writ of habeas corpus in the California Superior Court. Resp.'s Lodg. Doc. 10. Therein, petitioner claimed that his trial and appellate counsel rendered ineffective assistance, that the trial court violated his Sixth Amendment right to counsel when it denied his motion for substitution of counsel, and that the cumulative effect of errors at his trial violated his right to due process. Id. The Superior Court denied that petition in a decision on the merits of petitioner's claims. Resp.'s Lodg. Doc. 11.

On May 4, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, in which he raised the same claims contained in his habeas petition filed in the California Superior Court. Resp.'s Lodg. Doc. 12. The Court of Appeal summarily denied that petition by order dated May 14, 2009. Resp.'s Lodg. Doc. 13. Petitioner subsequently raised the same claims in a petition for writ of habeas corpus filed in the California Supreme Court. Resp.'s Lodg. Doc. 14; Pet'r's June 30, 2011 "Exhibits," at 1. The Supreme Court denied that petition on November 10, 2009 with a citation to In re Swain, 34 Cal.2d 300, 304 (1949) ("We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts"). Resp.'s Lodg. Doc. 15.

Petitioner filed his federal habeas petition in this court on December 2, 2009. Respondent filed an answer on June 30, 2010.

III. Analysis

A. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)) A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

B. Petitioner's Claims

1. Improper Exclusion of Evidence

a. Exclusion of Expert Testimony from Peter Scharf

In his first two grounds for relief, petitioner challenges the trial court's refusal to allow him to introduce expert testimony from Dr. Peter Scharf about proper police procedures. Dckt. No.1 at 10-36. In claim one, petitioner argues that the trial court's decision to exclude testimony from Dr. Scharf concerning "whether the police were legally engaged in performance of their duties," and whether "the police were violating various police operations standards," prevented him from presenting his defense, in violation of his Fourteenth Amendment right to due process and his Sixth Amendment rights to confrontation and compulsory process. Id. at 10. In claim two, petitioner contends that the trial court erroneously applied Cal. Evid. Code § 352 to exclude the testimony of Dr. Scharf on these two subjects, in violation of his Fourteenth Amendment right to due process. Id. at 27-36.

The California Court of Appeal rejected these arguments, reasoning as follows:

Defendant contends the trial court's refusal to permit defendant to introduce expert testimony relating to proper police procedures thwarted his ability to present a defense, depriving him of due process. He asserts the court's ruling also violated defendant's Sixth Amendment right to confrontation and to compulsory process to obtain witnesses in his favor. He further contends the trial court erred in relying on Evidence Code section 352 to exclude the evidence because the dangers of prejudice, confusion and the undue consumption of time did not outweigh the evidence's probative value.

Defendant proposed to call Peter Scharf, Ed.D., a recognized expert in the parameter of the permissible use of force by law enforcement officers. Dr. Scharf would render opinions as to whether the tactics employed by Hogge and Bean were consistent with Peace Officers Standards and Training (POST); whether Hogge's tactics were consistent with use of force standards; whether Hogge violated these standards in other encounters; whether Hogge and Bean received proper training; and whether the tactics used contributed to Bean's death.

At the beginning of trial, the parties disputed the relevance of Dr. Scharf's testimony. The trial court deferred ruling on the admissibility of Dr. Scharf's testimony until after presentation of the People's case.

After the People's case, the trial court held a hearing pursuant to Evidence Code section 402 to determine the admissibility of Scharf's testimony. Defendant made an offer of proof that Scharf would testify whether the police tactics used were consistent with POST and the National Law Enforcement Professional Standards. Counsel identified the improper tactics on which he would seek an opinion: (1) absence of a radio call concerning the initial stop; (2) Bean jumping from a moving car; (3) failure to call in adequate back-up; (4) the failure to obtain supervisory guidance for the pursuit; (5) failure to develop a plan for the vehicle stop; (6) rushing the scene and escalating the situation at the second stop; (7) Hogge allegedly firing first; (8) Hogge making derogatory remarks to defendant at the first stop; and (9) Hogge using deadly force when defendant ran.

The prosecutor argued this evidence was not relevant. Defense counsel countered it was relevant to impeach Hogge. Hogge had testified that when shooting began his mind shut down and he reverted to his training. The defense wanted to show Hogge overreacted and fired first; he was now lying to cover up shooting without a proper justification. For this defense, they needed an expert to testify as to what an officer should do. Further, Hogge's use of excessive force gave defendant a justification to use force; it might not rise to self-defense, but it was relevant to imperfect self-defense.

The trial court stated the jury would be instructed on proper police standards in the context of a detention or arrest, and it was improper for the jury to receive an expert opinion on that. The court noted that many of the POST standards address officer safety; these standards have nothing to do with the case or with the use of excessive force. They might be relevant in a civil liability case, but not a criminal case. The court found attacking Hogge's credibility by showing that he violated standards had little probative value and would likely confuse and mislead the jury as to the proper standard to evaluate the parties' behavior. The slight relevance of Dr. Scharf's testimony was outweighed by the potential for confusion and the prejudicial effect of the evidence. Later defendant asked the court to reconsider its ruling. The court confirmed its earlier ruling that any probative value of Dr. Scharf's testimony was outweighed by its potential for prejudice and confusion.

Defendant contends the trial court erred in its ruling because Scharf's testimony was relevant evidence and essential to the defense. It was relevant on the issue of whether the officers were engaged in the performance of their duties. It is a long-standing rule that one "cannot be convicted of an offense against a peace officer 'engaged in . . . the performance of . . . duties' unless the officer was acting lawfully at the time. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, italics in original.) In arguing the trial court abused its discretion in excluding Dr. Scharf's testimony, defendant relies on People v. McDonald (1984) 37 Cal.3d 351, overruled on another point in People v. Mendosa (2002) 23 Cal.4th 896, at page 914, which held the trial court prejudicially abused its discretion in excluding a defense expert from testifying about the psychological factors which affect the accuracy of eyewitness identifications. "A trial court has broad discretion in determining whether to admit expert testimony and its ruling will be reversed on appeal only where the record reveals an abuse of discretion. [Citations.]" (People v. Ramos (2004) 121 Cal.App.4th 1194, 1205.) We find no abuse of discretion.

Expert opinion testimony is admissible if it relates "to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid.Code, § 801, subd.

(a).) "[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ( People v. Cole (1956) 47 Cal.2d 99, 103.)

While in the abstract proper police procedures may be beyond common experience, here the jury was given detailed instructions on the subject. The extensive scope of the instructions distinguishes this case from McDonald, in which the trial court gave only the standard instruction on discrepancies in testimony which did not mention the specific data on eyewitness identification on which the expert proposed to testify. (People v. McDonald, supra, 37 Cal.3d at p. 372.)

The court instructed on reasonable and excessive force by a peace officer and the defendant's right to use reasonable force in response to excessive force. The phrase "in the performance of his duties" was defined for the jury. The court defined the reasonable cause necessary for an arrest and the standards for a lawful detention. The jury was further instructed that it is not a crime to resist nonviolently an unlawful police action, but that if during such flight the person commits a new and distinct crime, the officer may legally detain or arrest him. The court detailed four different Vehicle Code violations, fleeing a pursuing officer, failing to obey a traffic signal, exhibiting speed, and operating a motor vehicle with a defective windshield that impairs the driver's vision.

The court instructed the jury: "A peace officer is not engaged in the performance of his duties if he makes or attempts to make an unlawful arrest or detention or uses unreasonable or excessive force in making or attempting to make the arrest or detention. [¶] If you have a reasonable doubt that the peace officer was making or attempting to make a lawful arrest or detention or using reasonable force in making or attempting to make the arrest or detention, and thus a reasonable doubt that the officer was engaged in the performance of his duties, you must find the defendant not guilty of any allegation which includes an element that the peace officer was engaged in the performance of his duties. [¶] If you have a reasonable doubt that Officer Hogge was acting in an unlawful manner or was using unreasonable force in the performance of his duties, then you must find that Officer Bean and Officer Hogge were acting unlawfully in the performance of their duties at that time."

The court also instructed fully on perfect and imperfect self-defense.

Far from depriving defendant of his defense, the trial court fully instructed on every aspect of that defense. The jury was given the standards to determine if Hogge was acting in performance of his duties and was told of defendant's right to self-defense and to use reasonable force in the face of excessive police force. The issues defendant sought to raise were completely before the jury. Defendant's claim that his constitutional rights to present a defense were violated fails.

In exercising its discretion, the trial court was properly concerned that Dr. Scharf's testimony could confuse the jury as to the proper standards to apply. Some of the police tactics Dr. Scharf criticized addressed officer safety, such as getting out of the car before it fully stopped and failing to radio in the initial traffic stop. These tactics could not be construed as unlawful actions that would negate a finding the officers were engaged in the performance of their duties, and thus were irrelevant to any issue in the case. Defendant further contends Dr. Scharf's testimony was relevant to impeach Hogge's testimony that once there was actual shooting he relied on his training in the situation. Hogge was the prosecution's only percipient witness to the shooting and attacking his credibility was fundamental to the defense.

The trial court found little probative value in this use of Dr. Scharf's testimony. We agree. Some of the alleged violations of procedure had little, if any, impeachment value. Hogge admitted he would criticize a rookie officer for failing to call in the initial stop. Further, Hogge testified he fell back on his training when "it has turned into someone actually shooting at me." Dr. Scharf's criticisms of Hogge's actions from the point shots were fired were based on defendant's version of events, that Hogge fired first while defendant ran. The two competing versions of events, and the legal consequence if Hogge fired first, were before the jury. "When expert testimony is offered, much must be left to the trial court's discretion. [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 403.) In carefully considering the relevance and possibility of confusion of Dr. Scharf's testimony, given the full instructions on the issue and Dr. Scharf's reliance on officer safety rules as procedural violations, the trial court did not abuse its discretion in excluding Dr. Scharf's testimony.

Dckt. No. 18 at 110-17.

Criminal defendants have a constitutional right, implicit in the Sixth Amendment, to present a defense; this right is "a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19 (1967). See also Crane v. Kentucky, 476 U.S. 683, 687, 690 (1986); California v. Trombetta, 467 U.S. 479, 485 (1984); Webb v. Texas, 409 U.S. 95, 98 (1972); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009). A defendant's right to present a defense stems both from the Fourteenth Amendment right to due process and the Sixth Amendment right "to have compulsory process for obtaining witnesses in his favor." Moses, 555 F.3d at 757. A state violates the Sixth Amendment when it arbitrarily denies a defendant the right to put on the stand a witness whose testimony "would have been relevant and material to the defense." Washington, 388 U.S. at 23.

It is well-established, however, that "the right to present relevant testimony is not without limitation. The right 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). A criminal defendant "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302. Thus, a criminal defendant "does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). "Even relevant and reliable evidence can be excluded when the state interest is strong." Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).

A state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). A state law justification for exclusion of evidence does not abridge a criminal defendant's right to present a defense unless it is "arbitrary or disproportionate" and "infringe[s] upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998). See also Crane, 476 U.S. at 689-91 (discussion of the tension between the discretion of state courts to exclude evidence at trial and the federal constitutional right to "present a complete defense"); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002). "The Supreme Court has indicated its approval of 'well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.'" Moses, 555 F.3d at 757. "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

Petitioner is claiming, in essence, that the trial court's discretionary determination to exclude the testimony of Dr. Scharf violated his federal constitutional rights. The United States Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude expert testimony violates a criminal defendant's right to present relevant evidence. See Moses, 555 F.3d at 758, 760. Accordingly, the decision of the California Court of Appeal that the trial court's evidentiary ruling did not violate the Due Process Clause is not contrary to or an unreasonable application of clearly established United States Supreme Court precedent and may not be set aside. Id.*fn3 See also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (relief is "unauthorized" under Section 2254(d)(1) when the Supreme Court's decisions "given no clear answer to the question presented, let alone one in [the petitioner's] favor," because the state court cannot be said to have unreasonably applied clearly established Federal law).*fn4

Assuming arguendo that the state court erred under federal circuit law in excluding the testimony of Dr. Scharf, petitioner must still show that the error "had a substantial and injurious effect or influence in determining the jury's verdict" and that petitioner suffered actual prejudice, defined as a "reasonable probability" that the jury would have reached a different result but for the error. See Clark v. Brown, 450 F.3d 898, 916 (9th Cir. 2006) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). See also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (in § 2254 habeas proceeding, federal court must assess prejudicial impact of constitutional error under Brecht "substantial and injurious effect" standard).

For the reasons described by the California Court of Appeal, petitioner has failed to demonstrate that he was precluded from presenting his defense. Petitioner's defense theory was adequately explained for the jury through numerous relevant jury instructions. The additional testimony proposed by petitioner would have been cumulative in some respects and irrelevant in others, as explained by the state appellate court. As such, the testimony was not necessary or appropriate to explain petitioner's defense theory. Further, because several portions of Dr. Scharf's proposed testimony were not relevant to the issues at petitioner's trial, they could have actually confused the jury as to the standards to apply in evaluating petitioner's defense. Under the circumstances of this case, where the proposed testimony was somewhat cumulative and partially irrelevant, there is no reasonable probability its admission into evidence would have resulted in a different outcome at trial.

Petitioner also argues that the exclusion of Dr. Scharf's testimony violated his right to due process because of "the enormous disparity under California law between the right of prosecutors to use expert testimony to fill in the gaps in their cases and to make juries aware of facts bearing on the credibility of trial witnesses and the paucity of such rights when sought to be invoked by defense counsel." Dckt. No. 1 at 24. Petitioner claims that this disparity "tilts the scales of justice." Id. Although petitioner gives a "few examples of the common use of experts by prosecutors," in cases involving gangs and child molestation, petitioner does not specify the California laws to which he refers or explain how these laws "tilt the scales of justice" to the prosecution. Because this claim is vague and conclusory, it must be denied. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) ("'[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief'") (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)).

The trial court's evidentiary ruling excluding the testimony of Dr. Scharf did not deprive petitioner of his right to present a defense and did not violate due process by rendering his trial fundamentally unfair. Accordingly, petitioner is not entitled to relief on his first two claims.

b. Exclusion of Expert Testimony from David Miller

In petitioner's next ground for relief, he claims that the trial court erred when it excluded the testimony of law school professor David Miller on the subject of "aspects of police activity as it relates to the element 'lawfully engaged in the performance of duties.'" Dckt. No. 1 at 37.

Petitioner argues that Miller's testimony was relevant to the issue of whether the vehicle stop in this case was lawful. Id. The California Court of Appeal denied this claim, reasoning as follows:

In an offer of proof, defendant indicated Professor Miller would offer opinions as to whether Hogge and Bean were lawfully engaged in the performance of their duties; the application of the Fourth Amendment to vehicle stops; and whether the vehicle stop in this case was legal. In a report prepared for the defense, Professor Miller found there was no objective basis to stop defendant based on the suspicion the car was stolen. The other justification offered was that the car had a cracked windshield. Professor Miller conceded this basis presented factual questions for the jury, but noted that Hogge did not mention the requirement that the crack impair the driver's vision in his statement and did not ask defendant about the windshield during the stop.

Defense counsel argued this testimony "is really the cornerstone of the defense in this case." He analogized it to a prosecution expert testifying that drugs are possessed for sale.

The trial court rejected the defense analogy and found the evidence "inappropriate." The court reasoned it was the court, not Professor Miller, who decides what the law is and there should be no misunderstanding as to whether the jury should follow Professor Miller's testimony or the legal instructions given by the court. The question of whether the officers acted reasonably was a jury question to be decided based on the law given to them; it did not require unique expertise.

The analysis set forth above concluding the trial court properly exercised its discretion in excluding Dr. Scharf's testimony applies with even more force to the court's ruling on Professor Miller's testimony. The jury was fully instructed on the legal requirements for a detention, including the requirements for a stop based on a cracked windshield. As Professor Miller recognized, the legality of the stop for a cracked windshield was essentially a factual question for the jury. The trial court did not err in retaining control of the law presented to the jury and excluding Professor Miller's testimony.

Dckt. No. 18 at 117-18.

This claim should be denied for the same reasons set forth in the court's analysis of petitioner's first two claims, set forth above. The decision of the state courts rejecting this claim is not contrary to or an unreasonable determination of United States Supreme Court authority because the Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude expert testimony violates a criminal defendant's right to present relevant evidence. See Moses, 555 F.3d at 760. Further, in light of the jury instructions given at petitioner's trial and the opportunity for the defense to cross-examine petitioner and Officer Hogge about the vehicle stop, the trial court's ruling excluding the testimony of Dr. Miller did not render petitioner's trial fundamentally unfair. See, e.g., Clerk's Transcript on Appeal (CT) 2236-45 (jury instructions given regarding the definition of "performance of official duties," a list of relevant traffic code violations, and the prosecutor's burden of proving beyond a reasonable doubt that the police were engaged in the performance of their duties). Any claim that the trial court violated California law when it erroneously excluded the testimony of Professor Miller does not warrant federal habeas relief. See Estelle, 502 U.S. at 67-68.

For these reasons, petitioner's third claim for relief must be denied.

2. Jury Instruction Error

Petitioner raises several claims involving jury instruction error. After setting forth the applicable legal principles, the court will evaluate these claims in turn below.

a. Relevant Legal Standards

In general, a challenge to jury instructions does not state a federal constitutional claim. Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). To warrant federal habeas relief, a challenged jury instruction "cannot be merely 'undesirable, erroneous, or even "universally condemned,"' but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). To prevail on such a claim petitioner must demonstrate "that an erroneous instruction 'so infected the entire trial that the resulting conviction violates due process.'" Prantil v. State of Cal., 843 F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). In making its determination, this court must evaluate the challenged jury instructions "'in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Further, in reviewing an allegedly ambiguous instruction, the court "must inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). Where the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (same). In order to prevail on a federal habeas claim, the petitioner must demonstrate that the jury instruction error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38.

b. Instruction on "Performance of Duties" Principles

Petitioner's fourth ground for relief claims that the jury instructions given on the subject of "performance of official duties" were insufficient to "convey the legal requirements of a legal stop." Dckt. No. 1 at 45, 46. He argues that the trial court should have given sua sponte additional jury instructions to the effect that a traffic stop may not be prolonged beyond the time period necessary to address the traffic violation, and that a decision to stop an automobile is not reasonable if it was based on inappropriate criteria, such as the race of the driver. Id. at 46-67.

Petitioner contends that the stop of his vehicle was extended beyond the period of time necessary to address the traffic violation (a cracked windshield), and that Officer Hogge was therefore acting outside the scope of his lawful duties when he pulled petitioner over. Petitioner also argues that Officer Hogge stopped his vehicle because he was "a Black male driving a better than average automobile, which amounted to racial profiling." Id. at 53. Petitioner claims that the instructions given to the jury lowered the prosecution's burden of proof, in violation of his right to due process, because they "eliminated significant portions of the legal parameters of lawful police conduct, and the special finding allegation of a murder committed while an officer was engaged in the lawful performance of his duty." Id. at 56. Petitioner contends that the illegality of the traffic stop would "impact [his] right to leave the scene, as well as his perception of his right to use self-defense once Officer Hogge began firing at him." Id. He explains that the information contained in his proposed, but rejected, jury instructions was "the foundation of [his] defense ...


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