Clark v. Hedgepeth

Filing 28

MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Craig M. Kellison on 1/27/2009 ORDERING petitioner's amended petition for a writ of habeas corpus is denied; and the Clerk is directed to enter judgment and close this file. Civil Case Terminated. CASE CLOSED. (Matson, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. TONY HEDGEPETH, Respondent. / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties appearing in the action, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 9), respondent's answer (Doc. 23), and petitioner's reply (Doc. 27). /// /// /// /// 1 ERNEST E. CLARK, IV, Petitioner, MEMORANDUM OPINION AND ORDER No. CIV S-08-0163-CMK-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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I. BACKGROUND A. Facts1 The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct: While driving under the influence of methamphetamine, defendant Ernest Erastus Clark, IV, caused a head-on collision resulting in serious bodily injury. One year later, again while driving under the influence of methamphetamine, he caused another head-on collision, this time killing two people and seriously injuring another. *** A. July 6, 2002, Collision On July 6, 2002, at about 4:00 p.m., defendant drove a pickup truck onto Highway 50 at Watt Avenue going eastbound. Driving in excess of eighty-five miles per hour, he cut in front of one vehicle and swerved back and forth without signaling. He then crossed all eastbound lanes, and almost struck the guardrail but made a corrective action and drove along the shoulder for a brief period, still traveling over eighty-five miles per hour. He then swerved back across five lanes of traffic, missed the Bradshaw Road exit, jumped a nearby embankment where he crashed though a cyclone fence, and headed eastbound on Micron Road. Meanwhile, Hugh Estes was traveling northbound on Bradshaw Road in his pickup truck. As Estes turned onto Bradshaw Road between Florin Road and the Jackson Highway, he saw defendant's pickup truck coming straight towards him. Defendant's truck was moving at an excessive speed and he made no effort to move back into the southbound lane. Surrounded by a ditch on one side and traffic all around him, Estes could not avoid the collision. The impact shattered his windshield, lodging glass in his eye, and causing the steering wheel to hit him in the chest. Estes was later transported by ambulance to the intensive care unit of a nearby hospital where he was released the following day. Two weeks later, he underwent eye surgery to repair the damage caused by the glass. Defendant was also transported to the hospital where a blood sample was drawn from him. He was treated for his injuries, which included punctured lungs and a broken leg. /// B. Collision on July 20, 2003 Pursuant to 28 U.S.C. § 2254(e)(1), ". . . a determination of a factual issue made by a State court shall be presumed to be correct." Petitioner bears the burden of rebutting this presumption by clear and convincing evidence. See id. These facts are, therefore, drawn from the state court's opinion(s), lodged in this court. Petitioner may also be referred to as "defendant." 2

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One year later, on July 20, 2003, at approximately 12:00 p.m., Lavonne Gibson was driving northbound on Highway 160, a divided highway in Sacramento County, with three lanes in both directions. As she headed down the off-ramp onto Del Paso Boulevard, defendant entered the same off-ramp going the wrong direction. He was traveling at seventy or eighty miles an hour and she was forced to pull to the side to avoid being hit. Defendant took no evasive action. He continued driving southbound against northbound traffic and passed another driver who was traveling in another lane. Shortly thereafter, his vehicle collided head on with a Honda Accord. The driver of the Accord, Ann Odell, was declared dead at the scene. Her head had been disconnected from her spine. After hitting the Accord, defendant's [Acura] truck struck a Lincoln Town Car driven by Lesley Kibby. Kibby was driving northbound with her eighty-one-year-old mother Ruth Ann Watkins. Kibby was pried out of her car with the "jaws of life" and taken to the hospital. Her arm was broken and she was hospitalized for seven weeks. Kibby's mother, Ruth Watkins, was admitted to the hospital and diagnosed with multiple rib fractures and a closed head injury. While in the hospital, she developed several complications and died on August 15, 2003. The pathologist concluded that the blunt force injuries she sustained in the collision aggravated her underlying medical problems and led to her death. Defendant was unable to answer coherently the paramedics' questions, although he told the officer his name was Ernie. He was transferred to the medical center, placed under arrest for driving under the influence, and a blood sample was taken from him. His lower right leg was amputated as a result of injuries he sustained in the collision. Upon discharge, he was taken into custody and advised of his Miranda5/ rights. He agreed to answer questions and claimed he had no recollection of the collision, but admitted he was a drug addict and frequent user of methamphetamine. A highway patrol officer trained in accident reconstruction confirmed that the Acura and the Accord were in the northbound number one lane traveling in opposite directions when they both swerved into the number two lane and collided with each other. The Acura pushed the Accord across the road where the two vehicles collided with the Lincoln. The Acura was traveling at an estimated speed of at least 71.8 miles per hour when it hit the Accord and no skid marks attributable to the Acura were found. C. Prior Driving History

22 23 24 25 26 /// D. Expert Testimony Regarding the Blood Test Results 3 Defendant's girlfriend, his stepfather, and two of his brothers testified that when they drove with defendant, he would weave in and out of traffic, cut people off, and drive too fast. They warned him to drive more carefully and to slow down.

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The criminalist who analyzed defendant's blood samples found that the blood drawn on July 6, 2002, contained .02 milligrams per liter of amphetamine and .20 milligrams per liter of methamphetamine. The blood drawn on July 20, 2003, contained .03 milligrams per liter of amphetamine and .43 milligrams per liter of methamphetamine. Barry Logan, a toxicologist, testified that methamphetamine is a highly addictive drug that operates as a central nervous system stimulant, which generally affects the processes or pathways in the brain responsible for making decisions and carrying out actions as a result of those decisions. The drug produces an array of effects as it works its way through the body. Initially after ingesting the drug, people feel euphoric, energetic and good about themselves, their perception of their capabilities and abilities are enhanced, and they are often alert, restless and agitated. They also overestimate their ability to perform certain tasks, resulting in aggressive and risk-taking behavior. After the initial feeling wears off, the user moves into the second phase, referred to as "tweaking." This occurs after the drug has been administered for a period of time and the brain starts to develop some tolerance to the affects of the drug. When it is readministered, people feel restless and agitated. This phase is characterized by irritability, anxiety, agitation, and paranoia. The next phase is called the "crash phrase." As usage progresses over a period of time during a binge, a person experiences some depression, low energy, inattention, preoccupation, and fatigue from lack of sleep, which may cause the person to sleep for a long period of time during this phase. Logan testified that driving under the influence of methamphetamine is very dangerous and the blood methamphetamine level of a driver impaired by methamphetamine is usually .2 or .3 milligrams of methamphetamine per liter of blood. Those who sustain fatal injuries have an average concentration of .35 milligrams per liter of blood. A driver who has used methamphetamine and is in the early phase of the drug will engage in speeding and reckless driving. A driver who is in the crash phase of the drug, may be inattentive or fall asleep at the wheel, causing him or her to drive off the road or drift across lanes without making any corrective action. Logan therefore concluded that because of all the behaviors associated with the three stages of recreational use, methamphetamine affects a persons' ability to drive when he or she is under the influence of the drug and that person's ability to drive safely is impaired. Logan further concluded that defendant was driving under the influence of methamphetamine when he collided with Estes' truck on July 6, 2002, and at the time of the fatal collision on July 20, 2003. E. Defense Defendant did not testify but called two witnesses to present a mental impairment defense. His mother, Bonnie Wright, testified about his early childhood developmental problems and his methamphetamine addiction. He did not talk until he was three years old, he was slow in school, held back in the second grade, and at age ten, was placed in special education classes and speech therapy. In 1999, when he was eighteen years old, he spent a year in a residential treatment facility for drug 4

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addiction, which seemed to help him, attended Narcotics Anonymous (NA) meetings after he was released from the facility, and obtained his GED. However, he had a relapse in the summer of 2000 and rejected efforts to help him. At that time, the defendant told his mother he did not think he had a problem and that he would quit using "speed." Dr. John Wicks, a clinical neuropsychologist, testified that defendant had problems with verbal expression, reading, learning, and memory. Dr. Wicks diagnosed him with attention deficit disorder and also concluded that with respect to abstract reasoning and judgment, defendant was borderline retarded and had an IQ of 80, which placed him in the low normal range of intelligence. Procedural History Petitioner was convicted following a jury trial of two counts of second degree murder, two counts of driving under the influence of a drug and neglecting a duty imposed by law

10 which caused bodily injury, and one count of misdemeanor hit and run. The jury found true the 11 allegation that petitioner caused death to more than one victim. Petitioner was sentenced to an 12 aggregate term of 32 years to life in state prison, plus eight months. The conviction and sentence 13 were affirmed on direct appeal in a reasoned decision issued by the California Court of Appeal. 14 The California Supreme Court denied direct review and petitioner did not seek certiorari. 15 Petitioner filed a habeas petition in the California Court of Appeal, which was 16 denied with a citation to In re Steele, 32 Cal. 4th 682, 692 (2004). A second habeas petition filed 17 in the California Court of Appeal was denied with citations to In re Steele, and In re Hillary, 202 18 Cal. App. 2d 293 (1962). Petitioner filed a third habeas petition in the California Supreme Court, 19 which he later amended to include all the claims raised in the instant federal petition. The 20 California Supreme Court denied relief without comment or citation. 21 Respondent concedes petitioner's claims are exhausted. 22 /// 23 /// 24 25 II. STANDARDS OF REVIEW 26 5

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Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167. Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless the state court's 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F. 3d 1223, 1229 (9th Cir. 2001). Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is 6

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"contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 127 S.Ct. 649, 653-54 (2006). "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. Jan. 17, 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, ___ F.3d ___ (9th Cir. Sept. 15, 2008) (citing Wright v. Van Patten, 128 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 127 S.Ct at 654 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 127 S.Ct. at 653. In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to 7

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determine first whether it resulted in constitutional error. See Benn v. Lambert, 293 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id. State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See id.; see also Wiggins v. Smith, 123 S.Ct. 252 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 123 S.Ct. at 1175. This is because ". . . the gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6. /// /// /// The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 8

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848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.

III. DISCUSSION In his amended petition, petitioner raises the following claims: Ground 1 Claims relating to jury deliberations: A. The trial court interrupted crucial deliberations; B. The jury separated without permission after deliberations began, leaving one juror alone and unsupervised; C. The trial court failed to discharge the jury and order a new trial when one juror refused to re-enter the court with the other jurors for the reading of the verdicts; D. The trial court failed to admonish the jury before it adjourned not to converse among themselves or with non-jurors about the case; E. There is a "real possibility" all jurors did not participate in deliberations on September 30, 2004; and F. Trial counsel was ineffective for failing to object to jury problems outlined above. Ground 2 Juror misconduct. Claims relating to jury instructions: A. Erroneous jury instruction regarding implied malice; and

21 Ground 3 22 23 24 Ground 4 25 Ground 5 26 Insufficient evidence petitioner's conduct caused Ruth Watkins' death. 9 B. Trial counsel was ineffective for failing to object to the implied malice instruction. Insufficient evidence of implied malice.

1 Ground 6 2 3 4 5 6 7 8 9 Ground 7 10 11 12 13 14 A. Trial counsel failed to adequately question Dr. Wicks; 15 B. Trial counsel failed to adequately question Dr. Logan; 16 C. Trial counsel failed to call Dr. Heard; and 17 D. Trial counsel failed to call petitioner's acquaintances. 18 Ground 10 19 20 21 Ground 12 22 23 /// 24 25 26 A. Claims Relating to Sufficiency of the Evidence In Ground 4, petitioner argues that there was insufficient evidence of implied malice. In Ground 5, he argues that there was insufficient evidence that his conduct was the cause 10 Appellate counsel was ineffective for failing to raise the claims listed above on direct appeal. Ground 11 Trial counsel was ineffective for failing to elicit certain testimony from petitioner regarding the mental impairment defense. Trial counsel was ineffective for failing to request a jury instruction on unconsciousness and for failing to argue that theory to the jury. Ground 9 Ground 8 Sentence constitutes cruel and unusual punishment because petitioner is actually innocent of causing Watkins' death. The trial court erred by relying on factors not found by a jury or admitted by petitioner in imposing consecutive rather than concurrent sentences. Claims of ineffective assistance of counsel relating to petitioner's mental impairment defense: B. Trial counsel failed to consult an expert to determine the cause of Watkins' death; C. Trial counsel failed to request that the jury instruction regarding causation be supplemented with instructions regarding supervening causes of death and inadequate treatment; and D. Trial counsel failed to adequately argue issues related to the cause of Watkins' death during closing argument. Claims of ineffective assistance of counsel relating to Watkins' death: A. Trial counsel failed to present evidence regarding Watkins' preexisting conditions and lack of treatment;

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of Watkins' death. When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that, upon the record of evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).2 Under Jackson, the court must review the entire record when the sufficiency of the evidence is challenged on habeas. See id. It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. "The question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991); see also Herrera v. Collins, 506 U.S. 390, 401-02 (1993). The federal habeas court determines sufficiency of the evidence in the context of the substantive elements of the criminal offense, as defined by state law. See Jackson, 443 U.S. at 324 n.16. 1. Evidence of Implied Malice

Petitioner argues that the evidence was insufficient to establish that ". . . he engaged in life-endangering conduct with conscious disregard for human life." According to petitioner, consumption of methamphetamine rendered him unaware he was driving dangerously and he actually believed taking the drug would make him more alert and a safer driver. The /// California Court of Appeal addressed this claim on direct appeal as follows: Defendant contends the verdicts on counts one and two for second degree murder must be reversed because the evidence of implied malice is insufficient. Acknowledging he is responsible for the deaths of Odell and

Even though Jackson was decided before AEDPA's effective date, this expression of the law is valid under AEDPA's standard of federal habeas corpus review. A state court decision denying relief in the face of a record establishing that no rational jury could have found proof of guilt beyond a reasonable doubt would be either contrary to or an unreasonable application of the law as outlined in Jackson. Cf. Bruce v. Terhune, 376 F.3d 950, 959 (9th Cir. 2004) (denying habeas relief on sufficiency of the evidence claim under AEDPA standard of review because a rational jury could make the finding at issue). 11

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Watkins, he asks this court to reduce the two convictions to vehicular manslaughter with gross negligence . . . and remand for resentencing. . . . The court then outlined state law with respect to sufficiency of the evidence and implied malice in

3 the context of deaths resulting from driving while under the influence. Specifically, under 4 California law, implied malice exists where the defendant is found to have acted wantonly and 5 with conscious disregard for human life. See People v. Sanchez, 86 Cal. App. 4th 970, 975-76 6 (3rd Dist. 2001); People v. Watson, 30 Cal. 3d 290, 300-301 (1981). A finding of implied malice 7 requires a determination that the defendant actually appreciated the risk involved. See Watson, 8 30 Cal. 3d at 297. A defendant's previous encounters with the consequences of reckless driving 9 "sensitize[] him to the dangerousness of such life-threatening conduct." People v. Ortiz, 109 Cal. 10 App. 4th 104, 112 (1st Dist. 2003). As to the evidence in this case, the Court of Appeal stated: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12 Here the evidence shows defendant got behind the wheel of his Acura while under the influence of methamphetamine and entered Highway 160 going the wrong direction, causing another driver to pull off the onramp to avoid a collision. Nevertheless, he continued on at a high speed, passing at least two other drivers. Shortly thereafter, he collided with another car after both drivers swerved and then collided with a third car. By swerving, defendant demonstrated he was not asleep at the wheel and was conscious of the dangerous consequences of his driving. The jury could also reasonably find defendant knew he was under the influence of the drug when he got behind the wheel. He admitted he was a methamphetamine addict and a frequent user of the drug. Blood analysis disclosed that at the time of the collision, he had more than twice the maximum amount of methamphetamine in his blood than would be found in a person who used the drug for therapeutic purposes. Contrary to defendant's claim, there is substantial evidence to support the jury's finding he was subjectively aware his conduct was dangerous to human life. (citation omitted). He attended a residential drug treatment program in 1999 and then attended NA meetings. It is reasonable to assume he learned about the dangers of taking methamphetamine and driving under its influence. Any uncertainty on that issue was certainly dispelled in 2002 when defendant drove his truck while under the influence of methamphetamine and collided head-on with another truck on Bradshaw Road, causing significant bodily injury to the other driver and himself. In combination, these events establish that by the time of the fatal collision on July 20, 2003, defendant was subjectively aware that driving recklessly while under the influence of methamphetamine is dangerous to human life. Nevertheless, defendant surmises that he "might not have known he

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was endangering anyone on 7-20-03." More specifically, he argues "it is possible" that on July 6, 2002, he collided with Estes' truck because he was asleep at the wheel (footnote omitted) and therefore learned from that accident that he should take another dosage of methamphetamine before driving to prevent himself from falling asleep in the future; that he did just that on July 20, 2003, in the honest but mistaken belief the methamphetamine would cause him to be alert, improve his ability to drive safely, and avoid endangering anyone, and that after doing so, his mind was so disordered he did not know he was speeding, driving on the wrong side of the road, or endangering anyone. Unsupported by the evidence and contrary to common sense, this line of reasoning is nothing more than conjecture and speculation. As such, it is inadequate to support a verdict (citation omitted), much less to overturn one. As we have concluded, based upon defendant's admitted frequent use of and addiction to methamphetamine, his participation in a drug treatment program, repeated warnings by family and friends, and the 2002 collision, the jury could reasonably find he was subjectively aware at the time he got behind the wheel on July 20, 2003, that driving recklessly while under the influence of methamphetamine was dangerous to human life. We therefore reject his claim. As the state court observed, petitioner's logic is completely contrary to all

13 common sense. After the 2002 collision, in which both petitioner and another person were 14 seriously injured after he caused an accident while under the influence of methamphetamine, it is 15 unfathomable that petitioner would claim that he did not know at the time of the 2003 accident 16 that driving while under the influence of methamphetamine is extremely dangerous. There is 17 simply no evidence to support petitioner's contention that he was asleep at the wheel in 2002. 18 Petitioner admits that he was driving while under the influence of methamphetamine at the time of 19 the 2003 collision. In fact, he states that he took a higher dose of the drug in order to stay alert 20 and improve his driving ability, despite having participated in Narcotics Anonymous and a 21 treatment program where he no doubt was instructed to the contrary. 22 /// 23 Additionally, petitioner's act of swerving to avoid a collision demonstrates that he 24 was actually aware that he was driving dangerously. In other words, had he really believed that 25 he was driving safely, and in the absence of any evidence that the driver of the car he swerved to 26 13

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avoid was driving recklessly, petitioner would not have had any reason to swerve. Further, the evidence shows that, prior to swerving, his driving (in the wrong direction and at a high rate of speed) had caused another car to take evasive action to avoid a collision. It is simply inconceivable that petitioner did not know he was driving recklessly on July 20, 2003. This court agrees with the state court that there was sufficient evidence upon which any rational juror could reach the conclusion that petitioner was actually aware that his conduct in 2003 was dangerous to human life. Therefore, the state court's determination of this claim was neither contrary to nor an unreasonable application of clearly established law 2. Evidence of Cause of Watkins' Death

Petitioner observes that Watkins suffered several pre-existing conditions, including diabetes and hypertension. He also notes that she did not die until nearly one month following the collision on July 20, 2003. According to petitioner, Watkins suffered head trauma, fractured ribs, and a blood clot at a result of the collision and that these problems were all healing. He argues that there was insufficient evidence to support the conclusion that the collision caused the complications which ultimately caused her death. This claim was rejected with comment by the California Supreme Court. As respondent notes, under California law a defendant is considered the proximate cause of the victim's death if his act was a substantial factor contributing to the death. See People v. Briscoe, 92 Cal. App. 4th 568, 583-84 (1st Dist. 2001). In the context of murder, an act which sets in motion a chain of events that produces the victim's death as a direct, natural, and probable consequence of the act, and without which the death would not have occurred, is considered the proximate cause of the death. See People v. Fiu, 165 Cal. App. 4th 360, 371 (1st Dist. 2008). In this case, and as discussed above, the evidence was sufficient to establish that petitioner's actions on July 20, 2003, caused the collision in which Watkins sustained multiple serious injuries. The question is whether the chain of events following the collision was the direct, natural, and probable consequence of petitioner's conduct. 14

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During her hospitalization, Watkins developed a pulmonary embolism and eventually suffered a heart attack. Subsequently, she developed complications and eventually died. Dr. Super, a trained pathologist, performed an autopsy to determine the cause of death. Dr. Super concluded that Watkins died as a result of complication related to blunt force head and thoracoabdominal injuries. The doctor also concluded that Watkins' pre-existing conditions were aggravated by the injuries sustained in the automobile collision on July 20, 2003. The evidence amply establishes Dr. Super's qualifications as an expert pathologist who had performed thousands of autopsies to render an opinion as to the cause of Watkins' death.3 Based on Dr. Super's testimony, a rational juror could reasonably conclude that petitioner's conduct, which undeniably caused the collision, was the proximate cause of Watkins' death. Specifically, Dr. Super stated that the complications which were the direct cause of Watkins' death were the result of the trauma she sustained in the collision, which aggravated Watkins' pre-existing problems. A rational juror could conclude from Dr. Super's testimony that Watkins' pre-existing conditions would not have been complicated, but for the auto collision. A rational juror could also conclude that the complications resulting from aggravation of Watkins' pre-existing problems were the natural, direct, and probable consequences of petitioner's conduct, and that Watkins' death would not have occurred absent petitioner's conduct. While it may be true that Watkins would not have died if she had not suffered various pre-existing conditions, the evidence is sufficient to establish that petitioner's conduct set in motion a chain of events leading to Watkins' death. Specifically, defendant drove under the influence of methamphetamine and caused an auto collision to occur, which in turn aggravated Watkins' pre-existing conditions, which in turn resulted in complications, which in turn resulted in death. On this record, the court cannot say that the state court's silent denial of this claim was the result of an objectively unreasonable application of clearly established law. Any argument that Dr. Super was not qualified to render an expert opinion is simply not supported by the evidence. 15
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B.

Claims Relating to the Jury In Ground 1-A through 1-E, petitioner asserts various claims of trial court error

with respect to the court's handling of the jury during deliberations. In Ground 2, petitioner asserts juror misconduct. 1. Jury Deliberations

The Court of Appeal addressed petitioner's claims relating to jury deliberations on direct review, summarizing them as follows: Defendant contends his two murder convictions must be reversed as a result of several procedural errors made during deliberations. He argues that these errors occurred when the trial court improperly interrupted deliberations without good cause, allowed the jury to be separated after deliberations began, failed to discharge the jury when one juror refused to appear in the courtroom while the verdicts on three counts were read, and failed to admonish the jurors not to discuss the case when it excused the jury for the evening. The state court then recited the following factual background: The jury began deliberations on September 29, 2004, shortly after 3:45 p.m. When the jurors were excused for the evening, the jury advised the court it had reached a verdict on count five. The matter was continued to the following date. Deliberations resumed on September 30, 2004, at 9:08 a.m. At 9:36 a.m., the jury advised the court it had reached a verdict on count four. At 10:55 a.m., the jury advised the court it had reached a verdict on count three. Deliberations resumed with scheduled breaks and at 3:40 p.m., the trial court instructed the clerk to contact counsel and the alternate jurors and direct them to appear in court to read the verdicts on counts three, four, and five. The court stated it would take those verdicts because it was the end of the day and they were not sufficiently related to counts one and two to interfere with deliberations. Upon their return, all jurors were present except Juror No. 10, who remained in the hallway. The court advised the jury it was going to take the sealed verdicts in an abundance of caution since they were submitted to the court and would not interfere with deliberations on counts one and two. However, Juror No. 10 was refusing to return to the courtroom and the court instructed the bailiff to ask the juror to come inside. The court continued its advisement to the jury, stating for purposes of efficiency, its usual practice was to take verdicts that have been rendered although it did not have to do so and it did not want to intrude into the jury's deliberations. However, because Juror No. 10 was not in the courtroom, the court advised the jury it was going to send them home and they could resume deliberations the following morning. The jury was then excused for 16

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the evening. The court did not read the verdicts. However, after the jury was excused, the court asked the bailiff to inform it of any exchange he had with Juror No. 10 apart from any matter relating to deliberations. The bailiff explained that he directed Juror No. 10 to step inside but the juror did not answer and appeared slightly disoriented and unresponsive to questioning. The juror was looking for something in the newspaper and continued to do so but the juror did not say anything about deliberations. The court indicated that it was inclined to let the matter go but asked counsel for advice on how to proceed. The prosecutor indicated he did not think they could ignore the matter. Defense counsel took the position the jury should be sent home and when they reconvened in the morning, the court should ask them if everyone was feeling alright and whether they were ready to work. If anyone answered in the negative, they should be heard at that time. The court was then advised that the jurors were waiting outside. They had told the bailiff Juror No. 10 seemed disoriented and they asked whether they could go back into the jury room to talk to him. Juror No. 10 was still refusing to come into the courtroom, so the parties agreed to call the presiding juror, Juror No. 8, to see if he or she could shed some light on Juror No. 10's conduct and whether he needed assistance. Juror No. 8 was ushered into the courtroom and advised by the court that it "cannot and must not know anything about your deliberations." The court then asked the juror whether he had any concerns about Juror No. 10. Juror No. 8 indicated that until that point he had no concerns. He explained that some of the jurors were taken off guard when the bailiff knocked on the jury room door prior to 4:30 p.m. and called them back into court "not knowing they were going to be coming back in here to do the counts that had already been decided." It was only when Juror No. 10 refused to return to the courtroom that some of the jurors became concerned. When the court asked Juror No. 8 if the jury still wanted to return to the jury room at that time, the juror stated "Yes. And that is why as a group we wanted to go back in to the deliberation room because that is the only place where we have been instructed where we could talk. . . ." At 4:21 p.m., after both parties agreed, the court granted the jurors' request. About 30 minutes later, at the jury's request, it was allowed to go home for the evening. The jury resumed deliberations without incident the following morning. The bailiff advised the trial court that when he went to secure the jury that morning, Juror No. 10 spontaneously stood up and apologized for what occurred the day before. The juror stated that he did not know what happened and that he was sorry he held up the court. There was no further communication and the bailiff left. Around noon of that same day, the jury advised the court it had reached verdicts on counts one and two. After the lunch recess, all five verdicts were read by the court. All jurors were present when the verdicts were read, each juror was polled separately as to counts one and two, and each affirmed that the verdicts on those two counts were their true verdicts. 17

1 Initially, the court observes that petitioner's claims relating to jury deliberations are 2 primarily based on alleged errors of state law. A writ of habeas corpus is available under 28 3 U.S.C. § 2254 only on the basis of a transgression of federal law binding on the state courts. See 4 Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 5 1197 (9th Cir. 1983). It is not available for alleged error in the interpretation or application of 6 state law. Middleton, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 7 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be 8 utilized to try state issues de novo. See Milton v. Wainwright, 407 U.S. 371, 377 (1972). 9 However, a "claim of error based upon a right not specifically guaranteed by the 10 Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so 11 infects the entire trial that the resulting conviction violates the defendant's right to due process." 12 Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th 13 Cir. 1980)); see also Lisenba v. California, 314 U.S. 219, 236 (1941). In order to raise such a 14 claim in a federal habeas corpus petition, the "error alleged must have resulted in a complete 15 miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962); Crisafi v. Oliver, 396 16 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960). 17 With these general principles in mind, the question on each of petitioner's claims 18 relating to jury deliberations is whether the alleged error violated due process. 19 Referencing the events of September 30, 2004, petitioner argues that the trial court 20 improperly interrupted deliberations to take the verdicts on counts three, four, and five. Given 21 that the trial court never looked at the verdicts and the jury resumed deliberations on the 22 remaining counts before any verdicts were read, the court cannot see any prejudice in the trial 23 court's conduct. Contrary to petitioner's argument that the trial court's conduct was 24 unauthorized, California law permits the trial court to receive and record a sealed verdict before 25 the jury has finished deliberating on all counts. See People v. Hernandez, 163 Cal. App. 3d 645, 26 18

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657 (2nd Dist. 1985). Further, nothing in the interruption of deliberations in this case raised a risk of influencing any of the verdicts ­ the jury had already reached verdicts on counts three, four, and five before the interruption, and counts one and two were unrelated.4 On this record, the court cannot say that the state court's denial of this claim was either contrary to or an unreasonable application of any clearly established law. Next, petitioner argues that the trial court improperly allowed Juror No. 10 to remain separated from the rest of the jury when he refused to return to the courtroom on September 30, 2004. In the state court, petitioner claimed this violated California Penal Code § 1128, which requires that an officer of the court must be sworn to keep the jury ". . . together for deliberation. . . ." The Court of Appeal addressed this claim on direct review and concluded that petitioner had procedurally defaulted by not raising a contemporaneous objection. Assuming without deciding that the claim is not procedurally barred in this court, the claim lacks merit. The plain language of § 1128 only requires that the jury be kept together during deliberations. Here, the record is clear that Juror No. 10 was separated from the rest of the jury only during times when the jury was not in deliberations and that the jury was together at all times they were To the extent petitioner claims that members of the jury were under the false belief that they had to render verdicts each day they deliberated, that issue is addressed in the Court of Appeal's decision at footnote 8 as follows: According to counsel, Juror No. 2 believed the jurors had to return a verdict every day because the court called them back into court to read the verdicts at the end of the first whole day. There was nothing in the court's instructions or procedures that compelled this conclusion. . . . [A]lthough the court told the jury it was going to read the verdicts on counts three, four, and five before the jury had finished deliberating on counts one and two, in fact it did not do so. Moreover, the court advised the jury that it did not have to follow that procedure and it did not want to interfere with the jury's deliberations. In its charge to the jury, the court properly instructed on the procedures for deliberating and returning verdicts. In sum, there was nothing improper in the court's instructions or prejudicial in the procedure that was followed. This court agrees with the Court of Appeal's analysis. In particular, the trial court's instructions as a whole were sufficient to dispel any misconception on the part of jurors that they had to reach verdicts every day. 19
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deliberating.5 Because there was no violation of state law, there was nothing to rise remotely close to a violation of due process. The state court's denial of this claim was neither contrary to nor an unreasonable application of any clearly established law. Next, petitioner claims that the trial court erred by not discharging the jury and ordering a new trial after Juror No. 10 refused to return to the courtroom for the reading of verdicts on counts three, four, and five. In the state court, petitioner argued that the trial court violated California Penal Code § 1147, which requires that the jury be discharged if all do not appear at the time verdicts are read. The Court of Appeal concluded that, because no verdicts were read during the time Juror No. 10 refused to appear in the courtroom, no violation occurred. This court agrees and finds that, because there was no violation of state law, there could have been no due process violation. The state court's denial of this claim was neither contrary to nor an unreasonable application of any clearly established law. Finally, petitioner argues that the trial court failed to admonish the jury not to discuss the case before permitting it to adjourn. This claim lacks merit because the record reflects that, before the case was submitted to the jury, the jury was instructed not to discuss the case with anyone, including each other, during any type of recess or break and not to deliberate unless all of them were in the jury room together with the door closed. Petitioner points to nothing to suggest that the jury did not heed this admonition. The state court's denial of this claim was neither contrary to nor an unreasonable application of any clearly established law. /// 2. Juror Misconduct

The Sixth Amendment guarantees a fair trial by an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961); Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir.1990). If even a

The court rejects as unsupported by the record and speculative petitioner's contention at Ground 1-E that there was a "real possibility" that the jury was not together at all times when it deliberated on September 30, 2004. 20

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single juror is "unduly biased or prejudiced" the defendant has been denied his right to an impartial jury. See Tinsley,895 F.2d at 523-24. As to juror misconduct, "[t]he test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974). On collateral review, if misconduct occurred, a petitioner must show that the alleged error "`had substantial and injurious effect or influence in determining the jury's verdict.'" Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see also Hughes v. Borg, 898 F.2d 695, 699 (1990). Petitioner argues that it was possible three jurors committed misconduct and that the trial court erred in refusing to disclose information relating to these jurors. The Court of Appeal addressed this claim on direct review and outlined the following factual background: On October 1, 2004, the jury returned guilty verdicts on all counts. Each member of the jury was then polled separately as to counts one and two and each juror agreed the verdict was his or her "true verdict." Prior to excusing the jury, the court advised the jurors they could talk about the case to whomever they wanted, that if they chose, they could remain outside the courtroom and speak to counsel, that it was ordering their personal information sealed and if it was sought for any reason, they would be notified before the information was disclosed and given an opportunity to object to disclosure. On about October 6, 2004, defendant filed a motion to request the address and phone numbers of Juror Nos. 7, 9, and 10. To establish good cause, counsel attached her own declaration in which she relayed the following facts: Immediately after rendering the verdict, Juror No. 2 approached her. The juror was distraught and crying and indicated that the guilty verdict on counts one and two for second degree murder was not her true verdict and that she was pressed by other jurors into rendering a guilty verdict. She believed Juror Nos. 7, 9, and 10 would corroborate her statements and desired to interview those jurors regarding potential juror misconduct. The prosecution opposed the motion. At the hearing on the motion, the court set forth the following additional information received from defense counsel in chambers: Counsel spoke to Juror No. 2 in the stairwell where the juror continued to cry. The juror told counsel she was pressured and the process went too fast. She wanted to vote for manslaughter. Seeing that the juror was so upset, counsel told her to sleep on the matter and counsel would contact her the following Monday. Counsel obtained the juror's phone number and, noticing that the juror still had her jury badge, suggested that she return the badge to the courtroom. When the juror asked if she should tell the court what had transpired, counsel responded "[d]o whatever you think you 21

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should do." Counsel subsequently met with Juror No. 2 in counsel's office where the juror reiterated that she had been pressured into voting guilty for second degree murder and that she was really distraught and had only slept four hours in the last three nights. She told counsel she was pressured into a guilty verdict because the jurors leading the discussions spoke to her in rude and aggressive ways, because she thought the jury had to reach verdicts every day based on having been called back into court to take the jury's earlier verdicts, and balloting changes from secret ballots to hand voting in order to show she was the only holdout juror. The juror also indicated that the other jurors made charts with pros and cons but would not place her ideas on the chart and asked her "what part of this don't you understand?" Last, she said the other jurors told her she could not use her common life experiences to deliberate. When the jury was polled, Juror No. 2 did not advise the court that the verdict on either count one or two was not her true and correct verdict because she did not know she could say so. At that time, however, she looked at Juror No. 1 and said "I don't want to go through with this" and that juror said "[d]on't worry about it. It will be all right." The court added that when the jury was polled, the court observed that Juror No. 2 appeared upset but was not distraught or crying and the court did not notice any other jurors crying at that time. The court also stated that when Juror No. 2 came back into the courtroom to return her badge, she did not say anything to the court or to the bailiff about her change of mind. The court denied the motion finding defendant had failed to establish good cause. The state court began its analysis of the claim by noting that, under California law, the defendant bears the burden of establishing good cause to unseal juror information. See People v. Rhodes, 212 Cal. App. 3d 541 (3rd Dist. 1989). The Court of Appeal continued its analysis by discussing the good cause requirement and the kinds of evidence admissible to establish good cause: In Rhodes, . . . the court discussed the competing interests of "maintaining the integrity of our jury system, including encouraging public participation in the process, fostering free and open discussion among jurors, promoting verdict finality, reducing incentives for jury tampering, and discouraging harassment of jurors by losing parties eager to have the verdict set aside." (citation omitted). Striking a middle ground to harmonize and satisfy these interests, the court held that "upon timely motion, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial." (citation omitted). However, a motion for new trial to overturn the verdict for juror 22

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misconduct may not be based upon a juror's hearsay statement. (citation omitted). Nor may the verdict be impeached with evidence that is inadmissible under Evidence Code section 1150. (citation omitted). Evidence Code section 1150 provides that "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." The limitation stated in Evidence Code section 1150 "prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict . . . are those open to sight, hearing, and other senses and thus subject to corroboration." (citations omitted). The rationale behind this rule is to distinguish between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which cannot be corroborated or disproved. (citation omitted). Applying these rules to petitioner's case, the Court of Appeal stated: . . . [W]e find no abuse of discretion. First, defendant failed to establish good cause because his showing was based solely on hearsay. (citation omitted). Juror No. 2's statements were presented to the court by way of defense counsel's declaration and oral statements to the court. Counsel had this juror's telephone number and had met with her in counsel's office. Thus, counsel had the ability to obtain the juror's affidavit and failed to do so. Moreover, during polling, Juror No. 2 twice told the court the verdicts on counts one and two were her true and correct verdicts. She also failed to advise the court to the contrary despite the fact she had the opportunity to do so when she returned her badge to the courtroom after speaking with defense counsel. In addition, Juror No. 2's allegations that other jurors spoke in a rude and aggressive manner to her are inadequate as a matter of law to show jury misconduct because they are not of such character as are likely to have improperly influenced her verdict. (citations omitted). . . . Nor may the court consider her statements indicating that she felt pressured to reach a guilty verdict because they relate to the jury's deliberative process and to Juror No. 2's own mental processes and subjective considerations. (citations omitted). Those statements include allegations that she felt pressured because she believed the jury had to return verdicts every day (footnote omitted) and felt social pressure because the jury switched to hand balloting to isolate her and used charts without including her ideas. Defendant contends, however, that the showing he must make to obtain a new trial on grounds of juror misconduct is greater than the prima facie showing he must make [to unseal juror information]. Under the circumstances of this case, we disagree. [The statutes governing release of juror information] require the 23

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defendant to make a prima facie showing of good cause . . . . Good cause is shown by evidence establishing a "reasonable belief that jury misconduct occurred. . . ." (citation omitted). In so doing, the defendant must show that a "juror's conduct was `of such a character as is likely to have influenced the verdict improperly.'" (citations omitted). As we have found, defendant failed to make that showing. The basis for his claim of good cause was to contact other jurors who could corroborate Juror No. 2's statements. Since we have concluded that [Juror No. 2's] allegations were insufficient as a matter of law to show a reasonable belief that jury misconduct took place, there was no good cause to [unseal juror records to] corroborate her allegations. As to petitioner's primary claim that the trial court erred by refusing to release the sealed information regarding Juror Nos. 7, 9, and 10, this court must agree with the state court that there was no violation of state law. In particular, as the Court of Appeal outlined, California law requires a showing of good cause which, in turn, can be based on only certain kinds of evidence which can lead to only certain kinds of findings. Here, petitioner failed to provide any admissible evidence of Juror No. 2's statements. And, even if he had, Juror No. 2's statements could not, as a matter of California law, have led to the reasonable belief that misconduct took place because they related exclusively to subjective considerations. Because no error of state law occurred with respect to the release of sealed juror information, there was nothing which rose to the level of a violation of due process.6 The state court rejected as speculative petitioner's additional argument that other jurors "might be able to furnish relevant facts which Juror 2 could not furnish." This court agrees that such an argument is based on pure speculation and, for this reason, finds that the state court's rejection of the argument was neither contrary to nor an unreasonable application of any clearly established law.

The state court also rejected petitioner's assertion that the failure to hold a hearing at which Juror Nos. 7, 9, and 10 could object to disclosure of their information violated his right The court need not consider whether any juror misconduct resulted in an unfair trial because petitioner has not established that any misconduct ever occurred. 24
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to due process because he was denied important procedural guarantees. The Court of Appeal reasoned that the hearing to object to disclosure of juror information is a post-trial procedural mechanism and, as such, does not impact the fairness of the trial or resulting verdict. This court agrees and also finds that, because the hearing provides an opportunity for jurors to object to disclosure of sealed information, the mechanism does not provide any procedural protection to petitioner ­ the mechanism protects jurors. The state court's denial of this assertion was neither contrary to nor an unreasonable application of any clearly established law. C. Jury Instruction Claim In Ground 3-A, petitioner argues that the jury instruction regarding implied malice was erroneous. In general, 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." Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). To prevail, petitioner must demonstrate that an erroneous instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp, 414 U.S. at 147). In making its determination, this court must evaluate an allegedly ambiguous jury instruction "`in the context of the overall charge to the jury as a component of the entire trial process.'" Prantil, 843 F.2d at 817 (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)). Petitioner's burden is "especially heavy" when the court fails to give an instruction. Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Where an instruction is missing a necessary element completely, the "reasonable likelihood" standard does not apply and the court may not ". . . assume that the jurors inferred the missing element from their general experience or from other instructions. . . ." See Wade v. Calderon, 29 F.3d 1312, 1321 (9th Cir. 1994). In the 25

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case of an instruction which omits a necessary element, constitutional error has occurred. See id. It is well-established that the burden is on the prosecution to prove each and every element of the crime charged beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). Therefore, due process is violated by jury instructions which use mandatory presumptions to relieve the prosecution's burden of proof on any element of the crime charged. See Francis v. Franklin, 471 U.S. 307, 314 (1985); see also Sandstrom v. Montana, 442 U.S. 510 (1979). A mandatory presumption is one that instructs the jury that it must infer the presumed fact if certain predicate facts are proved. See Francis, 471 U.S. at 314. On the other hand, a permissive presumption allows, but does not require, the trier of fact to infer an elemental fact from proof of a basic fact. See County Court of Ulster County v. Allen, 442 U.S. 140, 157 (1979). The ultimate test of the constitutionality of any presumption remains constant ­ the instruction must not undermine the factfinder's responsibility at trial, based on evidence adduced by the government, to find the ultimate facts beyond a reasonable doubt. See id. at 156 (citing In re Winship, 397 U.S. at 364). Even if there is constitutional error, non-structural errors may be harmless. See Hedgpeth v. Pulido, 129 S.Ct. 530, 532 (2008) (per curiam) (citing Chapman v. California, 386 U.S. 18 (1967)). In the context of jury instructions, an error is not structural so long as the error does not "vitiat[e] all the jury's findings." Sullivan v. Louisiana, 508 U.S. 275, 2781 (1993) (holding that an erroneous reasonable doubt instruction resulted in structural error not subject to harmless error analysis). An instructional error which resulted