Kimberly Long v. Mary Lattimore

Filing

FILED ORDER AND OPINION (SUSAN P. GRABER, JOHNNIE B. RAWLINSON and PAUL J. WATFORD) The Memorandum disposition filed July 24, 2013, is redesignated as an authored opinion by Judge Graber, with modifications. The opinion is to be filed concurrently with this order. Appellant s petition for panel rehearing and petition for rehearing en banc filed August 7, 2013, are DENIED as moot. The time for filing a petition for rehearing and petition for rehearing en banc shall start anew as of the filed date of the opinion. AFFIRMED; Judge: SPG Authoring, Judge: PJW Concurring. FILED AND ENTERED JUDGMENT. [8883192]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY LOUISE LONG,
Petitioner-Appellant,

No. 12-55820

v.

D.C. No.
5:10-cv-00277-PSG-SP

DEBORAH K. JOHNSON,
Warden,
Respondent-Appellee.

ORDER AND
OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
July 8, 2013—Pasadena, California
Filed December 2, 2013
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Order;
Opinion by Judge Graber;
Concurrence by Judge Watford

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LONG V. JOHNSON
SUMMARY*

Habeas Corpus
The panel redesignated its Memorandum Disposition,
filed July 24, 2013, as an authored opinion with
modifications, and denied a petition for panel rehearing and
for rehearing en banc as moot.
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
conviction. The panel held that, viewing the evidence in the
light most favorable to the prosecution, the California Court
of Appeal reasonably held that a rational jury could find
beyond a reasonable doubt that petitioner murdered her livein boyfriend.
Judge Watford concurred, but had “grave doubts” about
whether the state has convicted the right person, based on the
timing of events and the fact that the only witness who placed
petitioner at her home early enough to commit the crime and
eliminate all traces of her involvement never testified at trial.

COUNSEL
Alexander Simpson (argued) and Alissa Bjerkhoel, California
Innocence Project, San Diego, California, for PetitionerAppellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Arlene A. Sevidal, Deputy Attorney General (argued),
Kamala D. Harris, Attorney General of California, Julie L.
Garland, Senior Assistant Attorney General, and Kevin
Vienna, Supervising Deputy Attorney General, for
Respondent-Appellee.

ORDER
The Memorandum disposition filed July 24, 2013, is
redesignated as an authored opinion by Judge Graber, with
modifications. The opinion is to be filed concurrently with
this order.
Appellant’s petition for panel rehearing and petition for
rehearing en banc filed August 7, 2013, are DENIED as
moot. The time for filing a petition for rehearing and petition
for rehearing en banc shall start anew as of the filed date of
the opinion.

OPINION
GRABER, Circuit Judge:
A jury convicted Petitioner Kimberly Louise Long of
second-degree murder for the bludgeoning death of her
boyfriend, Oswald “Ozzy” Conde, in the home that they
shared. The California state courts affirmed her conviction
on appeal, and the federal district court then denied her
petition for a writ of habeas corpus. In this court, Petitioner
argues that the district court erred because the evidence
adduced at trial was insufficient to permit a rational jury to

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LONG V. JOHNSON

find her guilty beyond a reasonable doubt. Reviewing de
novo the district court’s decision to deny the petition for a
writ of habeas corpus, Lambert v. Blodgett, 393 F.3d 943, 964
(9th Cir. 2004), we affirm.
STATEMENT OF FACTS
Petitioner and her boyfriend Conde lived together. On
October 5, 2003, Petitioner, Conde, and their friend Jeffrey
Dills1 spent the day riding motorcycles and drinking heavily.
While at a bar, Petitioner and Conde argued about her
flirtatiousness toward other men. Petitioner became upset
and rode to her house with a friend of Dills’. Dills and Conde
followed separately on their motorcycles. When Conde
arrived home, he continued the argument with Petitioner in
their driveway. Petitioner was still very angry because Conde
had embarrassed her in front of other people. She pushed and
yelled at Conde and told him that he was a “loser” who had
no job and did not pay his fair share and that she wanted him
out of her house. Petitioner hit Conde with her hand, her
purse, her motorcycle helmet, and a novelty hat that she was
carrying, and then threw things at him.2 Dills became
1

Dills died in a motorcycle accident after the preliminary hearing but
before the trial. His preliminary hearing testimony was read to the jury.
The propriety of that procedure is not challenged here.
2

There also was evidence that Petitioner had been physically violent
with Conde in the past. For example, one of Conde’s children told the
police that Petitioner once punched Conde in the face, leaving him with
a bloody nose. In addition, Petitioner’s ex-husband, Joe Bugarski,
testified that, during one argument, Petitioner tackled Bugarski off his
bicycle, after which he slapped her, and she hit him in the head with a
cordless phone and retrieved a butter knife with which she threatened him.
On another occasion, Petitioner threw a plate of food at her ex-husband
and threatened him with a baseball bat.

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concerned that Conde might hit Petitioner back, so he stepped
between them. Petitioner decided to depart with Dills, and
they left for his house.
At Dills’ house, Petitioner and Dills had a drink and got
into his spa. She continued to complain about Conde’s not
paying his share. Then she and Dills had a sexual encounter,
which she ended abruptly by telling Dills that she had to
return home because she had forgotten that her ex-husband
was supposed to drop off their children, even though she
knew that this was not true. While Petitioner dressed, she
said that she was so mad at Conde she could “kick his ass.”
Dills estimated that he dropped Petitioner off at her house
between 1:20 and 1:30 a.m. on October 6, 2003. As he
approached the house, Dills turned off his motorcycle and
coasted, so as not to awaken Conde or the neighbors.
Petitioner could not find her cell phone. Dills turned his
headlight up into the bushes, where Petitioner had thrown
things at Conde earlier, to help her find the phone. Dills then
watched her enter the house through the front door and saw
her silhouetted inside the house. Dills drove away and
returned to his own home, where he noticed, while setting an
alarm, that it was 1:36 a.m. The trip from Petitioner’s house
to Dills’ house was two and a half to three miles and took 10
to 15 minutes. A neighbor of Petitioner’s heard a loud
motorcycle going down the road at some time between 1:20
and 1:30 a.m. and saw the motorcycle driving away from
Petitioner’s house.3

3

No one, including Petitioner’s neighbors, heard her dog Otto bark on
the night of the murder. He barked when someone he did not know went
onto her property. After the murder, Otto barked and howled at the police
investigator.

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At 2:09 a.m., Petitioner called 911 to report that she had
“just” returned home, that something had happened to Conde,
that he had blood all over his face, and that something had
happened to her house. She hung up and called back.
Officers arrived at the house at 2:14 a.m. and found Petitioner
in the middle of the street, frantic. The officers did not notice
any injury to Petitioner or any blood on her person or
clothing.
When the officers went into the house they found Conde
sitting on the couch, with an injury to his head. They
searched the house to ensure that no one else was present.
Paramedics entered at 2:20 a.m. and ascertained that Conde
was dead. From the blood coagulation and temperature and
rigidity of his body, they determined that he had not died
within the minutes prior to their arrival. It was later
determined that Conde died from blunt force trauma to the
head, caused by three to eight blows. The implement used
was a long, slender object like a stick, bat, or golf club. Any
healthy adult could have inflicted the injury, which the
coroner determined would have rendered him unconscious
almost immediately and resulted in death within 2 to 20
minutes. Conde was attacked where he was found, on the
couch. He bore no defensive wounds.
The officers’ search revealed that the sliding glass door
from the kitchen to the back yard was open, but they found no
signs of forced entry. The spa in the back yard was
uncovered, running, and warm. Broken glass, coins, and a
cordless telephone were scattered on the kitchen floor. A hair
clip, purse, and cell phone were on the kitchen counter. A
pair of sandals, a helmet, and a hat sat on the floor near the
couch where Conde died. A jacket and another hat were
found on a throw rug on the floor nearby. No blood was

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found on any of those items. Two baseball bats near the door
appeared, because of blood spatter patterns on them, to have
been there at the time of the murder. Blood evidence was
found on the couch, all four walls around Conde’s body, a
table near him, the television, the curtains, and a door behind
the couch. But no blood was found in the kitchen, where
Petitioner had made the phone call after discovering Conde’s
body, or in the hall leading to the bedrooms.
The search of the house and garage, Petitioner’s and
Conde’s cars, the yard, the immediate neighborhood, and the
nearby storm drains yielded nothing more of evidentiary
value.4 The murder weapon was never found. But Conde’s
golf clubs and one baseball bat were not found, either; an
acquaintance previously had seen one club resting next to
three baseball bats near the door, and there had been a bag of
golf clubs in the garage.
Officers took Petitioner to a police station during the
investigation at her home. The officer who sat with her did
not notice any blood on Petitioner’s person or clothing.5
4
The police did not search a strip mall, a school, or a YMCA (including
their trash dumpsters), which were located within a very short distance of
Petitioner’s house.
5

The absence of blood on Petitioner was significant because one of the
first officers on the scene testified that there was blood on the ground
behind the couch, which was difficult to avoid stepping in. Petitioner
testified that she went in and out of the house at least twice, ran frantically
throughout the house, and put her hands on Conde. At trial, she testified
that she pulled Conde’s body by the hand so hard that he “lifted up.” But
there were no bloody tracks in the house. Although Petitioner testified
that she removed her shoes and called 911 barefoot from the kitchen,
where broken glass was found, there also was no evidence that her feet
were cut.

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Among other things, Petitioner mentioned that her house had
been ransacked and was a mess, although the police did not
find that to be so. Petitioner also said that she checked the
house and was worried when she could not find her children,
although she subsequently said that she was not worried
because she knew that they were with her ex-husband.
Police interviewed Petitioner on October 6, 2003, and
again on October 9, 2003. During the second interview,
officers confronted her about inconsistencies in her story and
contradictions between what she said and the reports of others
who were with her that day. Petitioner said that she
sometimes forgot things that happened when she was drunk
and admitted that she was “fuzzy” on some of the details of
the day. During both interviews, she told them that Conde’s
ex-girlfriend would have done something like this because
she had vandalized their property and had made threats
against Petitioner and Conde in the past.6
Petitioner’s account of the night of the murder was that,
when she returned from Dills’ house, she walked in and saw
Conde lying on the couch. She knew that something was
wrong, so she turned on the light and saw that he was injured.
She carried two party hats inside with her and kicked off her

6

At trial, Petitioner suggested that either her ex-husband or Conde’s exgirlfriend may have committed the murder. Petitioner’s ex-husband
introduced evidence that he was asleep with his girlfriend and son at his
girlfriend’s parents’ house. His girlfriend testified that she slept on the
outside edge of the bed and that no one in the house was disturbed during
the night. Conde’s ex-girlfriend introduced evidence that she was on a
date that ended between 12:45 a.m. and 1:15 a.m. on the morning of
October 6, 2003, after which she dropped her date off at his home in
Whittier, about 30 miles from Petitioner’s home.

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shoes as she entered.7 According to Petitioner, Conde was
gurgling, so she thought that he was breathing and called 911
on her home phone. Although Petitioner was an emergency
room nurse experienced in treating head trauma, she did not
render aid to Conde because she was drunk and upset. She
ran around the house screaming, hung up on 911, ran outside,
then called 911 again. She then ran outside again, where
police found her. Petitioner later told the police that a
number of items were missing, including the shotgun she kept
inside her bedroom closet (which only the immediate family
knew about), her car keys,8 and the center console of what
Petitioner acknowledged was a cheap stereo. None of the
jewelry in the house, which was worth more than $10,000,
was taken, nor were the bass guitar or flat-screen television
that were sitting in plain view.
Petitioner’s story was self-contradictory in several
respects. For example, although she had told Dills that she
was still so angry that she could “kick [Conde’s] ass,” she
initially told police that she was happy to be home and happy
that Conde was there. She lied about the sexual encounter
with Dills. She testified that she had found her cell phone in
the bushes when Dills dropped her off, but told the police that
she could not find the cell phone. She also admitted at trial
that, during her interviews with police, she was not truthful
about the level of violence that she had displayed toward
Conde during their argument on the night of the murder.

7

8

But the shoes were found facing the front door, not away from it.

Although Petitioner testified that she never found her car keys, the jury
reasonably could find that the keys with a shamrock on them, found
hanging in the kitchen, were hers, as she had shamrock tattoos and a
shamrock on her motorcycle helmet.

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LONG V. JOHNSON
PROCEDURAL HISTORY

A California jury convicted Petitioner of second-degree
murder, a violation of California Penal Code § 187. After
denying her motion for a new trial, the state trial court
sentenced Petitioner to a prison term of 15 years to life.
Petitioner appealed her conviction and argued, among
other things, that the evidence was insufficient to establish
that she had killed Conde. The California Court of Appeal
affirmed the conviction. People v. Long, No. E039986, 2008
WL 4958575 (Cal. Ct. App. Nov. 21, 2008) (unpublished).
In response to the sufficiency challenge, the court considered
“‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt,’” id. at *4 (quoting People v. Young,
105 P.3d 487, 501–02 (Cal. 2005)); accord Jackson v.
Virginia, 443 U.S. 307, 319 (1979), and explained at length
why the circumstantial evidence sufficed to permit a rational
jury to find Petitioner guilty beyond a reasonable doubt,
Long, 2008 WL 4958575, at *4–12. The court denied a
petition for rehearing. The California Supreme Court denied
review.
Having exhausted her claim before the state courts,
Petitioner filed a petition for writ of habeas corpus in the
federal district court. She again argued that she was denied
due process because the evidence was insufficient to prove
her guilt beyond a reasonable doubt. The district court held
that the state courts’ denial of that claim was not contrary to,
nor did it involve an unreasonable application of, clearly
established federal law as determined by the United States
Supreme Court, nor was it an unreasonable determination of

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facts. Accordingly, under 28 U.S.C. § 2254(d), habeas relief
could not be granted, and the court dismissed the action with
prejudice.
The district court issued a certificate of appealability on
the sufficiency issue. Petitioner filed a timely notice of
appeal.
DISCUSSION
When considering Petitioner’s claim premised on
insufficiency of the evidence—an inquiry governed by
Jackson—we must view the evidence in the light most
favorable to the prosecution. Boyer v. Belleque, 659 F.3d
957, 960 (9th Cir. 2011), cert. denied, 132 S. Ct. 2723 (2012).
Because this case arises in the context of a habeas petition
filed after enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), we owe a “double dose of
deference” to state courts. Id. at 964. That is, we must
resolve doubts about the evidence in favor of the prosecution
and, in addition, must examine the state courts’ decisions
through the lens of AEDPA. To grant habeas relief, “we
must conclude that the state court’s determination that a
rational jury could have found that there was sufficient
evidence of guilt . . . was objectively unreasonable.” Id. at
965.
The state courts applied the correct law, because they
examined the evidence under the Jackson standard. The
pivotal question, then, is whether the California Court of
Appeal, which issued the last reasoned state-court decision,
unreasonably applied Jackson in affirming Petitioner’s
conviction for second-degree murder. Boyer, 659 F.3d at
965.

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LONG V. JOHNSON

Viewing the evidence in the light most favorable to the
prosecution, the California Court of Appeal reasonably held
that a rational jury could find, beyond a reasonable doubt, that
Petitioner murdered Conde. There was evidence from which
the jury rationally could find: (1) that Petitioner had
opportunity, because between 1:20 or 1:30 a.m. and 2:09 a.m.
(a period of 39 to 49 minutes), Petitioner could have struck
Conde in the head, washed herself in the spa and changed out
of her bloodied clothes, and disposed of the murder weapon
and clothes beyond the perimeter of the police search, before
calling 911; (2) that Petitioner had access to a weapon, such
as the missing golf club and third baseball bat; (3) that
Petitioner’s sustained anger at Conde created motive;9 (4) that
Petitioner’s lies to investigators evidenced consciousness of
guilt; (5) that Petitioner attempted to make it appear, falsely,
that a robbery had occurred in connection with the murder;
(6) that Petitioner was willing to settle arguments with
violence, such as her violent confrontation with Conde earlier
that day and her history of domestic violence against Conde
and her ex-husband; (7) that the intruder was known to
Conde, due to his lack of defensive wounds, the absence of
signs of forced entry, and the fact that Petitioner’s dog was
not heard barking on the night of the murder; and (8) that the
two people who, according to the defense, might have
committed the murder had solid alibis.
Although the evidence presented at trial could yield an
alternative inference, we “must respect the exclusive province
of the [jury] to determine the credibility of witnesses, resolve

9

Investigators found an empty champagne bottle and a cup in the trash
at Petitioner’s house. The champagne was being saved for Petitioner’s
birthday, and the prosecutor theorized that Petitioner became angrier when
she found that Conde had consumed the birthday champagne.

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evidentiary conflicts, and draw reasonable inferences from
proven facts.” United States v. Archdale, 229 F.3d 861, 867
(9th Cir. 2000) (internal quotation marks omitted). And,
although the evidence was circumstantial, a conviction—even
for murder—may rest solely on such evidence. See People v.
Snow, 65 P.3d 749, 761 (Cal. 2003) (per curiam) (holding that
circumstantial evidence alone supported the defendant’s
murder conviction); see also United States v. Cordova
Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004) (holding that
“circumstantial evidence alone can be sufficient to
demonstrate a defendant’s guilt”).
Were we the jury, we might have entertained a reasonable
doubt. Were we sitting as the reviewing court on direct
appeal, we might have found the evidence to be insufficient.
But under AEDPA, which demands double deference, we are
limited to deciding whether the California courts
unreasonably applied Jackson. They did not.
AFFIRMED.

WATFORD, Circuit Judge, concurring:
I have grave doubts about whether the State has convicted
the right person in this case. Those doubts stem from the fact
that it would have been virtually impossible for the defendant
to commit the crime and eliminate all traces of her
involvement even if she had arrived home at 1:20 a.m., as the
State contends, rather than around 2:00 a.m., as the defendant
testified at trial. I am also troubled by the fact that the only
witness who placed the defendant at home as early as
1:20 a.m. never actually testified at trial. This witness’s

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testimony was so critical—and the State’s case so thin—that
the trial judge said he would not even have allowed the case
to go to the jury without it. Yet the jury was left to assess the
credibility of this witness based on a cold preliminary hearing
transcript, rather than all the subtle and intangible factors
juries take into account when they evaluate live testimony,
because the witness died before trial commenced.
Despite these misgivings, I join the court’s disposition.
As the court notes, one of the inevitable consequences of the
doubly deferential standard of review we must apply under
AEDPA “is that judges will sometimes encounter convictions
that they believe to be mistaken, but that they must
nonetheless uphold.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011)
(per curiam).