Carpenter v. Brown, et al

Filing 243

ORDER DENYING GRUOP 3 CLAIMS. Signed by Judge Maxine M. Chesney on April 1, 2014. (mmcsec, COURT STAFF) (Filed on 4/1/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 98-2444 MMC

DAVID J. CARPENTER,
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Petitioner,

ORDER DENYING GROUP 3 CLAIMS

v.

DEATH PENALTY CASE

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KEVIN CHAPPELL, Warden of
California State Prison at San Quentin,

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Respondent.
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Introduction
The instant case arises from petitioner’s conviction and death sentence for the first degree

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murders of Ellen Hansen (“Hansen”) and Heather Scaggs (“Scaggs”), the attempted murder of

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Steven Haertle (“Haertle”), the attempted rape of Hansen, and the rape of Scaggs. See People v.

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Carpenter, 15 Cal. 4th 312 (1997). The crimes were alleged to have been committed in Santa Cruz

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County, and, after a change of venue, the case was tried in Los Angeles County.1 The California

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Supreme Court affirmed petitioner’s conviction and sentence on direct appeal on April 28, 1997. Id.

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Petitioner’s subsequent certiorari petition to the United States Supreme Court was denied on

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January 20, 1998. See Carpenter v. California, 522 U.S. 1078 (1998).

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Subsequent to his trial in Los Angeles County, petitioner was tried, convicted, and
sentenced to death in San Diego County for five murders that occurred in Marin County. See
Carpenter, 15 Cal. 4th at 344 n.1.

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Petitioner filed his first state habeas petition on December 24, 1996; it was denied by the

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California Supreme Court on May 27, 1998. Prior to the denial of his state habeas petition,

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petitioner filed in the United States District Court for the Central District of California a request for

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appointment of federal habeas counsel and a motion for change of venue. Petitioner’s motion for

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change of venue was granted on June 12, 1998, thereby transferring the instant habeas case to the

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Northern District.

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Under the one-year limitation period set forth in 28 U.S.C. § 2244(d), petitioner’s federal
habeas petition was due by May 27, 1999. The Court, however, granted petitioner’s motion to

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equitably toll the statute of limitations for five months, to and including October 27, 1999. (See

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United States District Court
For the Northern District of California

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Order Denying Motion to Vacate and Granting in Part and Denying in Part Motion for Equitable

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Tolling at 38.)2 Petitioner subsequently filed in this court a Petition for Writ of Habeas Corpus

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(“Original Petition”)3, a Notice of Additional Claims, and a Motion to Hold Proceedings in

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Abeyance, and filed in state court his second state habeas petition. On December 1, 1999, the

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California Supreme Court denied petitioner’s second state habeas petition. On December 6, 1999,

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petitioner filed his First Amended Verified Petition for Writ of Habeas Corpus (“First Amended

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Petition”) and withdrew the Motion to Hold Proceedings in Abeyance.

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Respondent subsequently filed a Motion to Dismiss First Amended Petition, primarily

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asserting therein various procedural grounds that respondent argued required dismissal of at least

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certain portions of petitioner’s First Amended Petition. The Court addressed all of the procedural

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issues in a series of orders. See, e.g. Carpenter v. Ayers, 548 F. Supp. 2d 736 (N.D. Cal. 2008).

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In 2008, based on allegations in the First Amended Petition and the applicable law, the Court

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issued an order requiring petitioner’s competency be determined in a timely manner, pursuant to

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Rohan ex. rel. Gates v. Woodford, 334 F. 3d 803, 817 (9th Cir. 2003). Based on the case record and

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the examination report of stipulated expert Dr. Robert Roesch, the Court found petitioner competent

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In the same order, the Court denied petitioner’s request to toll the statue of limitations as to
his unexhausted claims for a period to and including thirty days from an order identifying such
claims. Id.
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Because petitioner filed his federal petition after April 24, 1996, the date when the
provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) went into effect,
those provisions apply to the proceedings in this court. See Lindh v. Murphy, 521 U.S. 320.
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to pursue his habeas claims.4
The parties subsequently met and conferred, and agreed to a briefing schedule, subsequently

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amended by this Court, by which the remainder of petitioner’s claims were to be addressed. The

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schedule also separated the claims into nine groups. By orders issued prior to the instant order,

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Claims 42, 43, 46, 49, 50, 51, 52, 54, 55, 59, 62 and 63 have been denied. The instant order

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addresses Group 3 claims 19, 20, 22, 25, 26, 27, 28, 29, 30, 31, 44, 48, 56 and 58.

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Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a writ of
habeas corpus is not to be granted with respect to any claim that was adjudicated on the merits in

United States District Court
For the Northern District of California

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state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding.” 28 U.S.C § 2254(d).5 A federal court must presume the correctness of the state court’s

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factual findings, and the presumption of correctness may only be rebutted by clear and convincing

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evidence. 28 U.S.C. § 2254(e)(1).

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The “contrary to” and “unreasonable application” clauses of section 2254(d) have separate

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and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404 (2000). A state court’s decision is

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“contrary to” clearly established United States Supreme Court law if it fails to apply the correct

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controlling authority or if it applies the controlling authority to a case involving facts materially

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indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at

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413-414. A decision is an “unreasonable application” of United States Supreme Court law if “the

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state court identifies the correct governing legal principle . . . but unreasonably applies that principle

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to the facts of the prisoner’s case.” Id. at 414. “‘[A]n unreasonable application of federal

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Petitioner appealed certain of the Court’s orders regarding the competency determination to
the Ninth Circuit Court of Appeals. On July 31, 2009, the appeal was dismissed and denied in an
unpublished memorandum opinion. See Carpenter v. Ayers, Nos. 08-99019 & 08-99020, 2009 WL
2387288 (9th Cir. 2009).
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The parties agree that AEDPA applies to this matter.
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law,”however, “is different from an incorrect application of federal law.’” Harrington v. Richter,

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131 S. Ct. 770, 785 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). “A state

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court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded

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jurists could disagree’ on the correctness of the state court’s decision.” Id. at 786 (citing

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Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)).

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“[A] federal habeas court may not issue the writ simply because the court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law

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erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Lockyer v.

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Andrade, 538 U.S. 63, 75-76 (2003). “While the ‘objectively unreasonable’ standard is not self-

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United States District Court
For the Northern District of California

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explanatory, at a minimum it denotes a great[] degree of deference to the state courts.” Clark v.

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Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003).
Holdings of the Supreme Court at the time of the state court decision are the only definitive

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source of clearly established federal law under AEDPA. See Williams, 529 U.S. at 412. While

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circuit law may be “persuasive authority” for purposes of determining whether a state court decision

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is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings are

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binding on the state courts and only those holdings need be reasonably applied. See Clark, 331 F.3d

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at 1070. A state court’s decision need not cite to, and a state court need not be aware of federal law

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to pass muster under AEDPA; rather, “so long as neither the reasoning nor the result of the state-

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court decision contradicts [federal law],” the decision may be upheld. Early v. Packer, 537 U.S. 3, 8

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(2002).

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When a federal court is presented with a state court decision that is unaccompanied by a

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rationale for its conclusions, the court has no basis other than the record “for knowing whether the

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state court correctly identified the governing legal principle or was extending the principle into a

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new context.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such situations, federal

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courts must conduct an independent review of the record to determine whether the state court

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decision is objectively unreasonable. Id. Specifically, “where a state court’s decision is

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unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there

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was no reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
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Even if a petitioner meets the requirements of section 2254(d), habeas relief is warranted only

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if the constitutional error at issue had a “substantial and injurious effect or influence in determining

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the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (internal quotation omitted).

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Under this standard, petitioners “may obtain plenary review of their constitutional claims, but they

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are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual

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prejudice.’” Brecht, 507 U.S. at 637 (citing United States v. Lane, 474 U.S. 438, 439 (1986)).

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Analysis
I.

Claim 19: Miranda Warnings
In Claim 19, petitioner contends the trial court erred in finding, for purposes of Miranda, that

United States District Court
For the Northern District of California

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he was not in custody at the time he made statements at a parole office. Petitioner was not read the

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Miranda warnings before he made his statements, which were later introduced in evidence at trial.

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According to petitioner, the admission of such evidence violated his rights under the Fifth and

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Fourteenth Amendments.

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The California Supreme Court denied this claim in a reasoned decision on direct appeal, see

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People v. Carpenter, 15 Cal. 4th 312, 383-384 (1997), finding there were “virtually no indicia of

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custody,” as the “[parole] officers expressly told defendant he was not in custody and was free to

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leave at any time,” and, indeed, petitioner did leave the parole office after he was interviewed. See

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Oregon v. Mathiason, 429 U.S. 492 (1977) (holding defendant who was allowed to leave police

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station after making incriminating statements had not been in custody for Miranda purposes); see

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also Stansbury v. California, 511 U.S. 318, 322 (1994) (holding “[a]n officer’s obligation to

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administer Miranda warnings attaches only where there has been a restriction on a person’s freedom

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as to render him in custody.”) Further, as petitioner must and does acknowledge, clearly established

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Supreme Court law holds that a suspect is not in custody for Miranda purposes during an

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interrogation conducted during a required meeting with a parole officer. See Minnesota v. Murphy,

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465 U.S. 420, 430-431 (1984).

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In sum, as petitioner can cite to no federal precedent compelling the result he seeks, he

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cannot demonstrate the state court’s decision denying this claim was unreasonable, and,

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consequently, the claim will be denied.
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II.

Claim 20: Eyewitness Identification Evidence
In Claim 20, petitioner contends the trial court erred in admitting evidence that Haertle and a

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witness, Leland Fritz, identified petitioner at a pretrial lineup. According to petitioner, the lineup

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was unduly suggestive and admission of the identifications violated his rights to counsel and to due

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process. This claim was denied by the California Supreme Court in a reasoned opinion on direct

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appeal. See Carpenter, 15 Cal. 4th at 366-369.6

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A.

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Petitioner first argues that the lineup was unduly suggestive. When identification procedures

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Suggestiveness of Lineup

are unduly suggestive, any subsequent identification, absent a sufficient independent basis therefor,

United States District Court
For the Northern District of California

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is inadmissible. See, e.g., Mandon v. Braithwaite, 432 U.S. 98, 114 (1977). As the California

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Supreme Court reasonably found, however, the identification procedure at issue here was not unduly

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suggestive. In that regard, the California Supreme Court reasoned as follows:

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On May 15, 1981, after defendant’s arrest, several witnesses viewed him in a
six-man physical lineup at the Santa Cruz County Sheriff’s Department. Two
defense attorneys were present. Defendant moved to suppress the eyewitness
identification evidence. The court denied the motion after an evidentiary hearing.
Defendant argues (1) the lineup was impermissibly suggestive, and the subsequent
identifications were unreliable, and (2) he was denied his right to the assistance of
counsel at the lineup.
“In deciding whether an extrajudicial identification is so unreliable as to
violate a defendant’s right to due process, the court must ascertain (1) ‘whether the
identification procedure was unduly suggestive and unnecessary,’ and, if so (2)
whether the identification was nevertheless reliable under the totality of the
circumstances. (People v. Gordon (1990) 50 Cal. 3d 1223, 1242 [parallel citations
omitted]. . . . Defendant’s contentions lack merit.

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Defendant claims various physical differences between him and other
participants made the lineup impermissibly suggestive. We disagree. Because
human beings do not look exactly alike, differences are inevitable. The question is
whether anything caused defendant to “stand out” from the others in a way that would
suggest the witness should select him. (See People v. Johnson, supra, 3 Cal. 4th at p.
1217.) There was nothing here. All six participants were bearded and wore identical
clothing. Defendant was neither the oldest nor the youngest of the participants,
neither the tallest nor the shortest, neither the heaviest nor the lightest. The trial
court, who observed each of the six in person, found that, with one exception, the
others resembled defendant “very much.”. . . [O]ur review of photographs of the

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Although he agreed that Claim 20 was properly a part of the Group 3 Claims, and although
Claim 20 has been fully briefed, petitioner requests that the Court’s review of the claim be deferred
until such time as the Court considers Group 6 Claims pertaining to ineffective assistance of
counsel. The Court, however, finds it appropriate to address at this time the limited issues presented
by Claim 20.
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lineup supports the trial court’s assessment. . . .

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Defendant also complains that Haertle and possibly others heard on the radio
that an arrest had been made before they viewed the lineup. This radio
announcement did not make the procedure suggestive. Anyone asked to view a
lineup would naturally assume the police had a suspect. (People v. Meneley (1972)
29 Cal App. 3d 41, 57 [parallel citations omitted].) The police said nothing
suggesting that witnesses should make a selection. Moreover, Haertle testified that
although he assumed there was a suspect, he did not know the suspect would be in
that lineup instead of a possible later one.

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Carpenter, 15 Cal. 4th at 366-368.
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Petitioner cannot point to any clearly established federal law demonstrating the state court’s
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denial of this claim was objectively unreasonable; nor can he show the state court’s denial of the
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claim relied on an unreasonable determination of the facts. As the state court reasonably found, and
United States District Court
For the Northern District of California

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as the record confirms, the identification process was not unduly suggestive. The cases relied upon
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by petitioner concern the admissibility of identification evidence once it has already been
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determined that the procedures were unduly suggestive. See, e.g., Manson v. Brathwaite, 422 U.S.
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98 (1977); Neil v. Biggers, 409 U.S. 188, 199 (1972). Here, by contrast, petitioner can point to no
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evidence demonstrating that the state court’s decision holding the identification process was not
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unduly suggestive was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
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Accordingly, this portion of petitioner’s claim will be denied.
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B.

Right to Counsel

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Secondly, petitioner argues that, although his defense counsel was present during the lineup,
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he was improperly denied the assistance of his counsel. This claim was rejected on the merits by the
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California Supreme Court, which reasoned as follows:
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We perceive no violation of defendant’s right to have an attorney present at
the lineup. (Gilbert v. California (1967) 388 U.S. 263 [parallel citations omitted];
United States v. Wade (1967) [parallel citations omitted]. . . ) The attorneys were
active at the lineup. They participated in the decision not to have the defendant shave
and successfully requested that a person other than defendant wear his glasses.
Defendant cites no authority that defense counsel must be given time to scrutinize the
police reports before the lineup. The rules requiring the presence of counsel “were
adopted for two primary reasons: to enable an accused to detect any unfairness in his
confrontation with the witness, and to insure that he will be aware of any suggestion
by law enforcement officers, intentional or unintentional, at the time the witness
makes his identification.” (People v. Williams (1971) 3 Cal. 3d 853, 856 [parallel
citations omitted].) These purposes were satisfied. The defense attorneys could fully
detect any unfairness or suggestiveness. Indeed, one admitted at the suppression
hearing that no one at the lineup suggested a witness should select a particular
person.
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Defendant argues that People v. Williams, supra, 3 Cal. 3d 853, mandates that
his attorneys be present at the postlineup interviews. “In Williams, the defendant’s
attorney was present in the viewing room with the witness while the lineup was being
conducted. The witness then was taken outside the viewing room for the purpose of
making his identification. The request of the defendant’s counsel to be present and
observe any identification made by the witness was denied as being against the policy
of the sheriff’s department. We held that under the circumstances of the particular
case, the exclusion of defense counsel from the actual identification violated the
defendant’s rights under Wade and Gilbert to have counsel present at the lineup.”
(People v. Mitcham, supra, 1 Cal. 4th at p. 1067 (original italics.) As in Mitcham, we
find no violation of this rule. The right to counsel extends only to the actual
identification, not to postidentification interviews. (Id. at ¶. 1067-1068.)

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Carpenter, 15 Cal. 4th at 366-368.
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Petitioner cannot cite to any clearly established United States Supreme Court or other federal
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law holding that defense counsel must be present at police interviews of witnesses prior and
United States District Court
For the Northern District of California

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subsequent to the lineup. Indeed, Ninth Circuit law is to the contrary. See, e,g,, Doss v. United
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States, 431 F.2d 601, 603 (9th Cir. 1970) (finding witness interviews after lineup do not require
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presence of defense counsel.) Under such circumstances, petitioner fails to demonstrate that the
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decision of the California Supreme Court was unreasonable. As noted by the California Supreme
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Court, the applicable law holds that counsel must be present during the actual identification
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procedure. See Wade, 388 U.S. at 236-37. Here, petitioner’s counsel was present and participated
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in the lineup procedures, and, consequently, petitioner has not demonstrated his right to counsel was
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violated.
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Accordingly, this portion of petitioner’s claim must be denied as well.
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III.

Claim 22: Other Crimes Evidence and Instructions

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In Claim 22, petitioner contends that his Fifth, Eighth, and Fourteenth Amendment rights
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were violated when evidence of other crimes petitioner had committed, specifically, the Marin
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County crimes for which he was also convicted and sentenced to death, was admitted at the guilt
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phase of his trial. Additionally, petitioner contends the instructions given regarding evidence of the
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other crimes were erroneous and violated his constitutional rights.
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A.

Evidentiary Claim

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The California Supreme Court, in a reasoned decision on direct appeal, considered and
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rejected petitioner’s claim as to the evidence of the other crimes, as follows:
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5. Evidence of Uncharged Crimes
Over objection, the court admitted evidence of three murders and one rape
that defendant committed in Marin County in October and November 1980 that were
not charged in this case. (They were charged in another case.) It found the evidence
probative on the questions of intent, deliberation, and premeditation as to the
shooting of Haertle, Hansen, and Scaggs, and the question of intent to rape Hansen.
The court expressly found the probative value of the evidence outweighed its
prejudicial effect. Defendant contends the court erred in admitting the evidence and
in instructing the jury how to consider it.

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a. Admission of Evidence
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United States District Court
For the Northern District of California

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The admissibility of other crimes evidence depends on (1) the materiality of
the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those
facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.
(People v. Thompson (1980) 27 Cal.3d 303, 315 [165 Cal .Rptr. 289, 611 P.2d 883].)
The facts of intent to kill, premeditation and deliberation, and intent to rape were
certainly material. Defendant’s not guilty plea put in issue all of the elements of the
offenses, including intent. ( People v. Daniels (1991) 52 Cal.3d 815, 857-858 [277
Cal .Rptr. 122, 802 P.2d 906].)
The Marin County crimes also had a strong tendency to prove these facts.
Ballistics evidence established that the same gun was used to shoot each victim;
hence, almost certainly the same person committed each crime. Each victim was shot
in the head at close range in a remote hiking area. The similarities among the crimes
easily meet the standard needed to show intent. “The least degree of similarity
(between the uncharged act and the charged offense) is required in order to prove
intent.” ( People v. Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal .Rptr.2d 646, 867 P.2d
757].) “In order to be admissible to prove intent, the uncharged misconduct must be
sufficiently similar to support the inference that the defendant ‘probably harbor[ed]
the same intent in each instance.’” [Citations.] ( People v. Robbins [(1988)] 45 Cal.3d
867, 879 [248 Cal .Rptr. 172, 755 P.2d 355].) ( Ibid.)
“The reasoning underlying use of an actor’s prior acts as circumstantial
evidence of that actor’s later intent is well explained by Wigmore. It is based on ‘the
doctrine of chances–the instinctive recognition of that logical process which
eliminates the element of innocent intent by multiplying instances of the same result
until it is perceived that this element cannot explain them all. Without formulating
any accurate test, and without attempting by numerous instances to secure absolute
certainty of inference, the mind applies this rough and instinctive process of
reasoning, namely, that an unusual and abnormal element might perhaps be present in
one instance, but that the oftener similar instances occur with similar results, the less
likely is the abnormal element likely to be the true explanation of them. [¶] ... In
short, similar results do not usually occur through abnormal causes; and the
recurrence of a similar result (here in the shape of an unlawful act) tends
(increasingly with each instance) to negative accident or inadvertence or self-defense
or good faith or other innocent mental state, and tends to establish (provisionally, at
least, though not certainly) the presence of the normal, i.e., criminal, intent
accompanying such an act; and the force of each additional instance will vary in each
kind of offense according to the probability that the act could be repeated, within a
limited time under given circumstances, with an innocent intent.’ (2 Wigmore,
Evidence (Chadbourn rev. 1979) § 302, at p. 241; see also Wydick, Character
Evidence: A Guided Tour of the Grotesque Structure (1987) 21 U.C. Davis L.Rev.
123, 166-169; Imwinkelried, [Uncharged Misconduct Evidence (1984)] § 4:01.)” (
People v. Robbins (1988) 45 Cal.3d 867, 879-880 [248 Cal .Rptr. 172, 755 P.2d
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355].)

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A jury could reasonably infer from the evidence that defendant shot and killed
three persons in 1980, that he intended to kill when he shot and killed two others, and
shot but only wounded a third, several months later. Similarly, a jury could
reasonably infer from the evidence that he raped one of the Marin County victims that
he later intended to carry out his threat to rape Hansen.

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United States District Court
For the Northern District of California

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There is also no rule or policy requiring exclusion. Evidence of uncharged
crimes is inherently prejudicial but may still be admitted if it has substantial probative
effect. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) The matter lies within the
discretion of the trial court. (Id. at p. 405; People v. Robbins, supra, 45 Cal.3d at p.
880.) The ruling here was well within the court’s discretion. The evidence was highly
probative on the issues for which it was admitted. The circumstances of this case
minimized its prejudicial effect. Because of the similarity of the crimes and especially
the evidence that the same gun was used each time, evidence that defendant
committed the crimes in this case tended to establish that he committed the Marin
County crimes. As the trial court recognized, however, the reverse was not true. Little
independent evidence was presented that defendant committed the Marin County
crimes. Thus, only if the jury found defendant committed the crimes in this case
would it find he committed the Marin County crimes. There was no danger the jury
might doubt that he committed the charged offenses but convict anyway because of a
belief he committed the uncharged crimes. (See People v. Ewoldt, supra, 7 Cal.4th at
p. 405.) “[C]learly if the defendant cannot be connected to the prior act, admission of
evidence concerning it will not normally prejudice him.” ( People v. Simon (1986)
184 Cal.App.3d 125, 130, fn. 3 [228 Cal .Rptr. 855].) The court properly found that
the probative value of the evidence on intent and premeditation outweighed the
potential for prejudice. ( People v. Robbins, supra, 45 Cal.3d at p. 881.)

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Carpenter, 15 Cal. 4th at 378-380.
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Petitioner cannot show that the state court’s denial of this claim was an unreasonable
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application of clearly established federal law, or that the state court’s opinion relied on an
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unreasonable determination of the facts.7 The admission of evidence is not subject to federal habeas

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review unless a specific constitutional guarantee is violated or the error is of such magnitude that the
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result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan,
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197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986). The
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Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial
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evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v.
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Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding trial court’s admission of irrelevant
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Petitioner argues that this claim must be considered de novo because the California
Supreme Court did not address federal law in its rejection of the claim. A state court’s decision,
however, need not cite to, and a state court need not be aware of, federal law to pass muster under
AEDPA; rather, “so long as neither the reasoning nor the result of the state-court decision
contradicts [federal law],” the decision may be upheld. Early v. Packer, 537 U.S. 3, 8 (2002). This
Court thus accords the state court’s opinion the deference required under AEDPA.
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pornographic materials was “fundamentally unfair” under Ninth Circuit precedent but not contrary

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to, or an unreasonable application of, clearly established Federal law under § 2254(d)).

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Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for

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granting federal habeas relief on due process grounds. See Henry, 197 F.3d at 1031; Jammal v. Van

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de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). While adherence to state evidentiary rules suggests

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that the trial was conducted in a procedurally fair manner, it certainly is possible to have a fair trial

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even when state standards are violated; conversely, state procedural and evidentiary rules may

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countenance processes that do not comport with fundamental fairness. See id. (citing Perry v.

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Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983). The due process inquiry in federal habeas review is

United States District Court
For the Northern District of California

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whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial

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fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at

12

990. Only if there are no permissible inferences that the jury may draw from the evidence can its

13

admission violate due process. See Jammal, 926 F.2d at 920.

14

Here, the state court reasonably found the evidence of other crimes was relevant8 to intent

15

and “highly probative.” Carpenter, 15 Cal. 4th at 378-380. In particular, as set forth by the state

16

court, permissible inferences could be drawn by the jury from the evidence. See Jammal, 926 F.2d

17

at 920. Neither the Supreme Court nor the Ninth Circuit has ever held that it is a due process

18

violation for a trial court to admit, under state law, relevant evidence of other crimes. Moreover,

19

even if it were error for the state court to have admitted the other crimes evidence, petitioner has not

20

demonstrated that the error had a “substantial and injurious effect or influence in determining the

21

jury’s verdict.” See Brecht, 507 U.S. at 638. There was substantial additional evidence of the

22

requisite intents presented at petitioner’s trial, including petitioner’s statements to the victims, the

23

manner in which he approached them, petitioner’s use of a gun, his movement of at least one of the

24

bodies, and physical evidence of rape. (See Respondent’s Brief on the Merits at 13-14, and citations

25
26
27
28

8

The United States Supreme Court has held that “similar act evidence is relevant only if the
jury can reasonably conclude that the act occurred and that the defendant was the actor.”
Huddleston v. United States, 485 U.S. 681, 689 (1988). Such was the case here, particularly given
the fact that ballistics evidence established the same gun was used in the Santa Cruz and Marin
crimes.
11

1
2
3

to the record referenced therein.)
Accordingly, as petitioner has shown neither error nor prejudice, this portion of the claim
must be denied.

4

B.

Instructional Error Claim

5

The California Supreme Court, likewise in a reasoned decision on direct appeal, also

6

considered and rejected petitioner’s claim regarding the instructions concerning the evidence of

7

other crimes, as follows:

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23

b. Instructions
The court instructed the jury to consider the Marin County crimes only if it
found defendant committed them “by a preponderance of the evidence.” Defendant
contends the court should have required “clear and convincing proof.” The issue has
little practical significance here. The evidence that defendant was the Santa Cruz
County gunman was so overwhelming that the defense conceded it to the jury. The
evidence that the same gun was used in the Marin County crimes was at least clear
and convincing proof he also committed those crimes. Nevertheless, we address the
question. The Attorney General argues, first, the issue is not cognizable because at
trial defendant asked the court to adopt a reasonable doubt standard. We disagree.
The instruction affected the “substantial rights of the defendant.” (Pen. Code, §
1259.) The contention, however, lacks merit.
Our pronouncements on the question have not been entirely consistent. In
1969, we stated, “It is settled law that during the guilt trial evidence of other crimes
may be proved by a preponderance of the evidence ....” (People v. McClellan (1969)
71 Cal.2d 793, 804 [80 Cal .Rptr. 31, 457 P.2d 871] [contrasting this rule with the
reasonable doubt standard applicable at the penalty phase].) Several then recent
decisions supported the statement. (People v. Durham (1969) 70 Cal.2d 171, 187, fn.
15 [74 Cal .Rptr. 262, 449 P.2d 198]; People v. Cavanaugh (1968) 69 Cal.2d 262,
273-274, fn. 9 [70 Cal .Rptr. 438, 444 P.2d 110]; People v. Haston (1968) 69 Cal.2d
233, 253 [70 Cal .Rptr. 419, 444 P.2d 91]; People v. Polk (1965) 63 Cal.2d 443, 451
[47 Cal .Rptr. 1, 406 P.2d 641].) In People v. Medina, supra, 11 Cal.4th at pages
762-764, we reiterated the preponderance standard against an argument that the
reasonable doubt standard should apply, although the defendant did not specifically
urge the clear and convincing evidence standard. None of these decisions considered
that two previous decisions, one from this court, appeared to read the plurality
opinion in People v. Albertson (1944) 23 Cal.2d 550, 577 [145 P.2d 7], as requiring
clear and convincing evidence. ( People v. Wade (1959) 53 Cal.2d 322, 330 [1 Cal.
Rptr. 683, 348 P.2d 116]; People v. Rosenfield (1966) 243 Cal.App.2d 60, 68 [52 Cal.
Rptr. 101].)

24
25
26
27
28

Only a year after we decided McClellan, the clear and convincing standard
arguably reappeared. In People v. Terry (1970) 2 Cal.3d 362, 396 [85 Cal .Rptr. 409,
466 P.2d 961], we said, “Juanelda [one of the appellants] also argues that even if the
proof of the Alamo robbery was relevant, it was inadmissible because there was no
clear and convincing proof connecting her with the crime. (People v. Wade, 53 Cal.2d
322, 330 [1 Cal .Rptr. 683, 348 P.2d 116]; People v. Rosenfield, 243 Cal.App.2d 60,
68 [52 Cal .Rptr. 101].) There was such evidence.” Defendant argues that this
language impliedly overruled the decisions establishing the preponderance standard
in favor of the earlier ones stating the clear and convincing standard. However, our
12

1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10

describing and then rejecting a defense argument that the evidence was inadmissible
because it was not clear and convincing did not necessarily establish the applicable
standard. We may merely have not felt obligated to discuss the correct standard. We
certainly did not clearly overrule what we had so recently said was settled law. More
recently, we have cited with approval decisions stating the preponderance standard
and ignored the cases, including Terry, suggesting a different standard. (People v.
Medina, supra, 11 Cal.4th at p. 763; People v. Robertson (1982) 33 Cal.3d 21, 53
[188 Cal .Rptr. 77, 655 P.2d 279]; People v. Tewksbury (1976) 15 Cal.3d 953, 965,
fn. 12 [127 Cal .Rptr. 135, 544 P.2d 1335].)
The United States Supreme Court, interpreting the Federal Rules of Evidence,
has adopted the preponderance standard. (Huddleston v. United States (1988) 485
U.S. 681, 687, fn. 5, 690 [108 S.Ct. 1496, 1500, 99 L.Ed.2d 771]; Bourjaily v. United
States (1987) 483 U.S. 171, 176 [107 S.Ct. 2775, 2779, 97 L.Ed.2d 144]; see also
Dowling v. United States (1990) 493 U.S. 342, 348 [110 S.Ct. 668, 672, 107 L.Ed.2d
708].) Court of Appeal decisions postdating Terry have applied the preponderance
standard. (People v. Simon, supra, 184 Cal.App.3d at pp. 132-134 [noting the
inconsistent history of the rule]; People v. Harris (1977) 71 Cal.App.3d 959, 965-966
[139 Cal .Rptr. 778]; People v. Donnell (1975) 52 Cal.App.3d 762, 777 [125 Cal
.Rptr. 310].)

11
12
13
14
15
16

In light of this authority, we adhere to the preponderance standard and
disapprove any language suggesting the clear and convincing evidence standard. The
preponderance of the evidence standard adequately protects defendants. Once the
other crimes evidence is admitted, whatever improper prejudicial effect there may be
is realized whatever standard is adopted. If the jury finds by a preponderance of the
evidence that defendant committed the other crimes, the evidence is clearly relevant
and may therefore be considered. (Evid. Code, § 351; see Huddleston v. United
States, supra, 485 U.S. at p. 689 [108 S.Ct. at p. 1501].) The preponderance standard
is also consistent with the rule stated in Evidence Code section 115 that “Except as
otherwise provided by law, the burden of proof requires proof by a preponderance of
the evidence.”

17
18
19
20
21
22
23
24
25
26
27
28

When the evidence of the Marin County crimes was presented, the court
instructed the jury to consider it “solely on the matter of the state of mind involved in
the commission of the offenses” and not as “evidence of the defendant’s character or
as any evidence that he is inclined to commit crimes.” The court repeated the
substance of the instruction at the end of the guilt phase. Defendant contends the
court erroneously “did not require the jury to find the necessary foundational facts”
that he “acted with an intent to rape and a premeditated and deliberate intent to kill,
and that the Santa Cruz crimes were so similar in nature to the Marin crimes that if
[defendant] had a specific intent and mental state in the latter, he also had that intent
and mental state in the former.” No additional instructions, however, were needed.
Once the court admitted evidence of the Marin County crimes on the question
of intent, the only foundational requirement was the obvious one that defendant
committed them. As explained above, the more often defendant killed or raped, the
more likely he (1) intended (and premeditated) the result actually achieved,
(2) intended to fulfill his statement of intent to rape Hansen, and (3) intended to kill
Haertle although Haertle survived. Stated differently, evidence that defendant killed
and raped before he shot Hansen and Haertle reduced the likelihood that the shooting
was accidental or he did not intend to kill or rape. (People v. Robbins, supra, 45
Cal.3d at pp. 879-880.) This simple logic required no complex instructions.
Defendant relies on People v. Simon, supra, 184 Cal.App.3d at pages 131-132, which
found the court erred in not giving additional limiting instructions. Simon, however,
involved a prior nonfatal assault, not, as here, actual killings. Whatever merit there
13

1

may be to the Simon court’s holding under those facts, it has no relevance here.

2

Defendant also contends that the combined instructions reduced the
prosecution’s burden of proof as to his mental state below that of reasonable doubt.
As noted, the court instructed the jury it could consider the Marin County crimes if it
found by a preponderance of the evidence he committed those crimes. The court also
gave the standard instruction regarding the general sufficiency of circumstantial
evidence to prove guilt, but, because of the direct eyewitness evidence as to the
Haertle-Hansen crimes, limited that instruction to the counts involving Scaggs.
Defendant argues the evidence of intent as to all crimes was circumstantial.
Therefore, he claims, the jury might infer from these instructions that the prosecution
need prove intent only by a preponderance of the evidence. However, the court also
gave the standard instructions on reasonable doubt in general and on the sufficiency
of circumstantial evidence to prove the necessary “specific intent or mental state.”
These instructions made clear the reasonable doubt standard applies to intent as well
as identity. No error appears.

3
4
5
6
7
8
9

Carpenter, 15 Cal.4th at 380-383.
United States District Court
For the Northern District of California

10
Petitioner argues that the alleged instructional errors reduced the prosecution’s burden of
11
proof as to petitioner’s mental state. Specifically, petitioner argues, the instructions allowed the jury
12
to use the Marin County crimes to find him guilty of the charged Santa Cruz crimes without the
13
requisite mental state.
14
To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the
15
ailing instruction by itself so infected the entire trial that the resulting conviction violates due
16
process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141, 147
17
(1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (holding “it must be
18
established not merely that the instruction is undesirable, erroneous or even universally condemned,
19
but that it violated some [constitutional] right”) (internal quotation and citation omitted). The
20
instruction is not to be judged in artificial isolation, but must be considered in the context of the
21
instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the district
22
court must evaluate jury instructions in the context of the overall charge to the jury as a component
23
of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v.
24
Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843 F.2d 314, 317 (9th Cir.1988); see, e.g.,
25
Middleton v. McNeil, 541 U.S. 433, 434-35 (2004) (per curiam) (finding no reasonable likelihood
26
jury was misled by single incorrect instruction on imperfect self-defense where three other
27
instructions correctly stated the law). Further, if an instructional error is found, the court, before
28
granting relief in habeas proceedings, must determine that the error had a substantial and injurious
14

1

effect or influence in determining the jury’s verdict. See Calderon v. Coleman, 525 U.S. 141, 146-

2

47 (1998).

3

Here, petitioner has not demonstrated that the trial court’s instructions, taken in their entirety,

4

would have allowed the jury to find him guilty of the charged crimes without a specific finding as to

5

the requisite mental state. Petitioner argues that the instructions allowed the jury to find that if he

6

had an intent to rape, and a premeditated and deliberate attempt to kill, in the uncharged Marin

7

crimes, he must have had the same intent in the charged Santa Cruz crimes. (See Respondent’s Brief

8

on the Merits at 17-18 and citations included therein for the relevant portions of the challenged

9

instructions.) Petitioner cites to no federal case law in support of his argument, and offers no

United States District Court
For the Northern District of California

10

analysis demonstrating that the state court’s conclusion to the contrary was unreasonable.

11

Moreover, as discussed supra, there was ample evidence of intent apart from the evidence of other

12

crimes, and thus any error was not prejudicial. See Brecht, 507 U.S. at 637.

13

The Court similarly finds unpersuasive petitioner’s argument that the instructions reduced

14

the prosecution’s burden of proof. As the California Supreme Court reasonably found, the trial court

15

also gave the standard, approved jury instructions regarding reasonable doubt and circumstantial

16

evidence necessary to prove intent, and “[t]hese instructions made clear the reasonable doubt

17

standard applies to intent as well as identity.” See Carpenter, 15 Cal.4th at 383. As the Supreme

18

Court has held, challenged instructions “may not be judged in artificial isolation, but must be

19

considered in the context of the instructions as a whole and the trial record,” Estelle, 502 U.S. at 72;

20

consequently, the state court’s decision denying petitioner’s claim is reasonable under clearly

21

established federal law. Further, even if the challenged instructions were in error, there was, as

22

discussed above, ample evidence apart from the uncharged crimes establishing the requisite intent

23

for petitioner’s charged crimes, and, consequently, petitioner has not demonstrated prejudice. See

24

Brecht, 507 U.S. at 637.

25

Petitioner’s reliance on Doe v. Busby, 661 F. 3d 1001 (9th Cir. 2011), is misplaced. In Doe,

26

a non-capital habeas appeal, the Ninth Circuit considered the following pattern instruction, CALJIC

27

No. 250.2:

28
15

1

If you find that the defendant committed a prior offense involving domestic
violence, you may, but are not required to, infer that the defendant had a disposition
to commit the same or similar-type offenses. If you find that the defendant had this
disposition, you may, but are not required, to infer that he was likely to commit and
did commit the crime of which he is accused.

2
3
4

Id. at 1016.

5

Because the jury had also been instructed that it could find the defendant had committed the

6

uncharged crimes by a preponderance of the evidence, the Doe court concluded that the interplay of

7

the two instructions, without a clarifying instruction from the trial court, allowed the jury to find the

8

defendant guilty of the charged crimes if it found by a preponderance of the evidence that he had

9

committed the uncharged crimes. See Id. at 1016-1018. Additionally, the Ninth Circuit found that

United States District Court
For the Northern District of California

10

because the instructions could have lowered the burden of proof, the error was a structural one

11

requiring reversal of the conviction, rather than a trial error subject to harmless error review. See Id.

12

at 1022.

13

In petitioner’s case, however, the jury was not instructed that it could infer that petitioner had

14

actually committed the charged crimes if it found that he had committed the uncharged Marin

15

crimes. Rather, the jury was instructed that the evidence of those uncharged crimes could only be

16

considered “for the limited purpose of determining if it tends to show a characteristic method, plan

17

or scheme . . . which would further tend to show the existence of the intent, which is a necessary

18

element of the crimes charged.” RT at 14233-35. As discussed below, and in contrast to Doe,

19

petitioner’s jury was also instructed that the requisite intent must be found beyond a reasonable

20

doubt. RT at 14233-14252. Accordingly, it was not unreasonable under clearly established federal

21

law for the California Supreme Court to hold that the instructions, considered in their entirety,

22

“made clear the reasonable doubt standard applies to intent as well as identity.” See Carpenter, 15

23

Cal. 4th at 383.

24

Accordingly, as petitioner has demonstrated neither constitutional error nor prejudice, Claim

25

22 will be denied in its entirety.

26

IV.

27
28

Claim 25: Sufficiency of the Evidence
In Claim 25, petitioner contends there was insufficient evidence to support his conviction for

the attempted rape and murder of Hansen, and for the related special circumstance finding of
16

1

attempted rape-murder. This claim was denied by the California Supreme Court in a reasoned

2

decision on direct appeal as follows:

3
4
5
6
7

Defendant contends the evidence was insufficient to support the conviction of
attempted rape of Hansen and the jury’s finding of the rape-murder special
circumstance. “To determine sufficiency of the evidence, we must inquire whether a
rational trier of fact could find defendant guilty beyond a reasonable doubt. In this
process we must view the evidence in the light most favorable to the judgment and
presume in favor of the judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence. To be sufficient, evidence of each of the
essential elements of the crime must be substantial and we must resolve the question
of sufficiency in light of the record as a whole.” (People v. Johnson, supra, 6 Cal.
4th at p. 38.)

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
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22
23
24

Defendant argues attempted rape requires “some physical contact of a
distinctly and unambiguously sexual nature” and implies a defendant must physically
touch his victim. He merely cites a few cases involving this touching. The
occurrence of physical touching in some cases, however, does not make it required in
all. An attempt to commit a crime has two elements: the intent to commit the crime
and a direct ineffectual act done toward its commission. The act must not be
preparation but must be a direct movement after the preparation that would have
accomplished the crime if not frustrated by extraneous circumstances. (People v.
Memro (1985) 38 Cal. 3d 658, 698 [parallel citations omitted].) Defendant’s
statement, “I want to rape you,” clearly established his intent, which was also
indicated by evidence that on two other occasions, one earlier and one later, he did in
fact rape. Defendant’s acts of pointing his handgun at Hansen and ordering her to do
what he said went beyond mere preparation and constituted direct acts toward the
commission of the crime. Ample evidence supported this verdict.
Defendant also argues the rape-murder special circumstance must be set aside
because the attempted rape was merely incidental to the murder. However, the jury,
correctly instructed, reasonably found otherwise. The evidence that defendant said he
wanted to rape Hansen strongly suggests that his primary motivation was rape, not
murder, or at least that the rape was an “independent purpose.” (People v. Wright,
supra, 53 Cal. 3d at pp. 416-417.) Defendant also argues the rape-murder special
circumstance is inconsistent with the lying-in-wait special circumstance because the
former required an “after-formed intent to kill,” while the latter requires a “preexisting intent to kill.” He is incorrect. The rape-murder special circumstance
requires that rape not be merely incidental to the murder but does not require that the
intent to kill arise after the rape or attempt to rape. . . . If, as the jury reasonably could
have found, defendant lay in wait intending to rape and then to kill, both lying-inwait and rape-murder special circumstances would be established.
Carpenter, 15 Cal. 4th at 387-388.
The Due Process Clause “protects the accused against conviction except upon proof beyond

25

a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re

26

Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence in support of his

27

state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find

28

guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443
17

1
2

U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.
The Supreme Court has emphasized, however, that “Jackson claims face a high bar in federal

3

habeas proceedings.” See Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) (finding

4

Third Circuit “unduly impinged on the jury’s role as factfinder” and failed to apply the deferential

5

standard of Jackson when it engaged in “fine-grained factual parsing” to find evidence was

6

insufficient to support petitioner’s conviction). A federal court reviewing collaterally a state court

7

conviction does not determine whether it is satisfied that the evidence established guilt beyond a

8

reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992); see also, e.g., Coleman,

9

132 S. Ct. at 2065 (holding “the only question under Jackson is whether [the jury’s finding of guilt]

United States District Court
For the Northern District of California

10

was so insupportable as to fall below the threshold of bare rationality”). Rather, the federal court

11

“determines only whether, ‘after viewing the evidence in the light most favorable to the prosecution,

12

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

13

doubt.’” Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). Only where no rational trier of

14

fact could have found proof of guilt beyond a reasonable doubt has there been a due process

15

violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338.

16

If confronted by a record that supports conflicting inferences, a federal habeas court “must

17

presume – even if it does not affirmatively appear in the record – that the trier of fact resolved any

18

such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at

19

326. The habeas court may not substitute its judgment for that of the jury. See Coleman, 132 S. Ct.

20

at 2065. Moreover, a reviewing court must consider all of the evidence admitted at trial in the light

21

most favorable to the prosecution, McDaniel v. Brown, 130 S. Ct. 665, 673-74 (2010), and must

22

accord a jury’s credibility determinations “near-total deference,” Bruce v. Terhune, 376 F.3d 950,

23

957 (9th Cir. 2004).

24

Here, petitioner cannot establish the state court’s reasoned decision denying this claim was

25

unreasonable under clearly established federal law. Petitioner first argues there was insufficient

26

evidence to support his conviction for attempted rape of Hansen. As the California Supreme Court

27

reasonably found, however, petitioner’s stating he wanted to rape Hansen, combined with his

28

pointing a gun at her and ordering her to comply with his demands, were ample evidence of
18

1

attempted rape under the relevant California law. See Carpenter, 15 Cal. 4th at 387. Given such

2

evidence, a reasonable trier of fact could have found the essential elements of the crime beyond a

3

reasonable doubt. See Payne, 982 F.2d at 338. Petitioner’s argument that the California Supreme

4

Court erred in determining physical touch was not required to prove attempted rape under California

5

law is unavailing. “[A] state court’s interpretation of state law, including one announced on direct

6

appeal of the challenged conviction, binds a federal court sitting on habeas review,” Bradshaw v.

7

Richey, 546 U.S. 74, 76 (2005), and the state court here found physical touch was not required under

8

California law, a finding petitioner cannot demonstrate was unreasonable under clearly established

9

federal law. Consequently, petitioner is not entitled to habeas relief on this portion of his claim.9

United States District Court
For the Northern District of California

10

Petitioner makes the additional argument that there was insufficient evidence for the jury to

11

find true the attempted rape-murder special circumstance because, according to petitioner, the rape

12

attempt was merely “incidental” to the murder, which was the primary goal of Hansen’s assailant.

13

As the state court reasonably found, however, “[t]he evidence that defendant said he wanted to rape

14

Hansen strongly suggests that his primary motivation was rape, not murder, or at least that the rape

15

was an ‘independent purpose,’” Carpenter, 15 Cal. 4th at 387, and the jury found there was

16

sufficient evidence to support an attempted rape-murder special circumstance. Because a reviewing

17

court must consider all of the evidence admitted at trial in the light most favorable to the

18

prosecution, McDaniel, 130 S. Ct. at 673-74, and must accord a jury’s credibility determinations

19

“near-total deference,” Bruce, 376 F.3d at 957, petitioner fails to demonstrate the state court’s

20

decision upholding the jury verdict was improper.

21
22
23

Accordingly, this claim will be denied in its entirety.
V.

Claim 26: Instructions Regarding Lying-In-Wait
In Claim 26, petitioner contends the trial court erred when it instructed the jury on the

24

elements of first-degree murder by lying-in-wait and the lying-in-wait special circumstance.

25

Specifically, petitioner argues the court erred by denying two defense-requested instructions and

26

making a misstatement in one of the instructions. Petitioner argues these instructional errors

27
9

28

To the extent petitioner asserts lack of touch as the basis for his related claims that there
was insufficient evidence of first-degree felony murder and insufficient evidence to support a rapemurder special circumstance, such related claims likewise fail.
19

1

violated his due process rights under the Fifth and Fourteenth Amendments and his right to an

2

impartial jury under the Sixth Amendment. Petitioner further asserts that the lying-in-wait

3

instruction violated the Eighth Amendment’s narrowing requirement. The lying-in-wait jury

4

instructions were addressed as follows in a reasoned opinion by the California Supreme Court on

5

direct appeal.

6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The court’s instructions on lying-in-wait murder were identical to
instructions we have repeatedly upheld except for two sentences added at defense
request. (People v. Ceja, supra, 4 Cal.4th at pp. 1139-1140; People v. Ruiz (1988)
44 Cal.3d 589, 613-614 & fn. 3 [244 Cal .Rptr. 200, 749 P.2d 854].) Defendant
contends the court erred in refusing two other instructions he requested. One,
however, erroneously implied defendant must have been physically concealed. Both
otherwise duplicated the instructions actually given. The court need not give
duplicative or erroneous instructions. (People v. Mickey, supra, 54 Cal.3d at p.
697.)
Defendant also argues that the second of the two sentences the court added
at his request was itself error: “If you find that defendant merely intended to rape
during a period of watchful waiting and concealment, then you may not find the
lying in wait special circumstance to be true.” This instruction accurately states
the law but was given as part of the instructions on first degree murder, not on the
special circumstance. Defendant contends that, by referring solely to the special
circumstance, the instruction contains “an erroneous negative implication” that for
first degree murder, a mere intent to rape is sufficient. The Attorney General
responds, first, that any error was invited. (See generally, People v. Cain, supra,
10 Cal.4th at p. 38, fn. 14.) We disagree. Although defendant did request the
instruction, the record does not reflect that he wanted it with the first degree
murder instructions rather than the special circumstance instructions. The
contention, however, lacks merit. The court made clear that more than an intent to
rape was necessary for lying-in-wait murder. The instructions were inconsistent
regarding exactly what that intent requirement was. The court correctly gave the
standard instruction that, for lying-in-wait murder, the defendant must intend to
inflict “‘bodily harm involving a high degree of probability that it will result in
death and which shows a wanton disregard for human life.’” (People v. Ruiz,
supra, 44 Cal.3d at p. 614, fn. 3; see also People v. Ceja, supra, 4 Cal.4th at p.
1140, fn. 2; People v. Webster (1991) 54 Cal.3d 411, 448 [285 Cal .Rptr. 31, 814
P.2d 1273].) At defense request, the court also stated that defendant must have
“intended to kill.” Defendant cannot complain of this additional language, as it is
favorable to him, and the invited error doctrine clearly applies. (People v. Cain,
supra, 10 Cal.4th at p. 38, fn. 14.) Moreover, any error was harmless. The jury
found the special circumstance true, showing that it did not find a mere intent to
rape but also to kill.
The instructions on the lying-in-wait special circumstance were also
identical to instructions we have repeatedly upheld. (People v. Sims, supra, 5
Cal.4th at ¶. 433-434; People v. Edwards, supra, 54 Cal.3d at p. 845 & fn. 16.)
Defendant challenges the language stating that the duration of the lying in wait
must be “such as to show a state of mind equivalent to premeditation or
deliberation.” (Italics added.) We have upheld this language both for lying-in-wait
murder (People v. Stanley (1995) 10 Cal.4th 764, 794 [42 Cal .Rptr.2d 543, 897
P.2d 481]; People v. Ruiz, supra, 44 Cal.3d at ¶. 614-615) and the special
20

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circumstance (People v. Sims, supra, 5 Cal.4th at p. 434; People v. Hardy, supra, 2
Cal.4th at ¶. 162-163, 191; People v. Edwards, supra, 54 Cal.3d at p. 845), and we
continue to do so.
Carpenter, 15 Cal. 4th at 389-391.
Petitioner has not shown the state court’s reasoned opinion holding there was no

5

instructional error is contrary to, or an unreasonable application of, clearly established United

6

States Supreme Court law. Petitioner also fails to demonstrate the state court’s opinion relied on

7

an unreasonable determination of the facts.

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A trial court’s refusal to give an instruction does not alone raise a ground cognizable in a

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Rather, to obtain federal collateral relief for instructional error, a petitioner must show that the
challenged instruction, or lack of instruction, by itself so infected the entire trial that the resulting
conviction violates due process. See Estelle, 502 U.S. at 72; Cupp, 414 U.S. at 147; see also
Donnelly, 416 U.S. at 643 (holding “it must be established not merely that the instruction is
undesirable, erroneous or even universally condemned, but that it violated some [constitutional]
right”) (internal quotation and citation omitted). The instruction may not be judged in artificial
isolation, but must be considered in the context of the instructions as a whole and the trial record.
See Estelle, 502 U.S. at 72. As the California Supreme Court correctly stated, it would have been
error under California law to give one of the instructions the defense requested, as it implied that

19
the defendant must be concealed. See People v. Edwards, 54 Cal. 3d, 787, 823 (1991) (holding
20
“concealment of physical presence is not a requirement of lying in wait”). The remainder of the
21
requested instructions were duplicative of instructions actually given by the trial court, and thus
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there was no error in the trial court’s refusal of petitioner’s request that they be given in addition
thereto. See Carpenter, 15 Cal. 4th at 389-390.
Nor has petitioner shown the California Supreme Court was unreasonable in rejecting his
claim that the alleged “misstatement” in the defense-requested instruction created a negative
inference. The trial court made clear that more than intent to rape was necessary for lying-in-wait
murder. See Carpenter, 15 Cal. 4th at 390. Moreover, as the California Supreme Court noted, the

21

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jury found the special circumstance to be true, which required a finding of both intent to rape and

2

intent to kill. Petitioner cites no clearly established United States Supreme Court precedent to

3

support his contention that such alleged instructional errors violated his federal constitutional rights

4

and entitle him to federal relief.

5

Petitioner further asserts the use of the disjunctive “or” in the lying-in-wait special

6

circumstance jury instruction violated the Eighth Amendment. Specifically, he argues that because

7

the instruction stated the duration of the lying-in-wait must be such as to show a state of mind

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“equivalent to premeditation or deliberation,” it does not sufficiently narrow the class of murders

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eligible for the death penalty.10 In order to pass constitutional muster, a special circumstance cannot

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“apply to every defendant convicted of murder and instead must apply only to a subclass of
defendants convicted of murder.” See Tuilaepa v. California, 512 U.S. 967, 972 (1994). In this
instance, as the California Supreme Court noted, California courts have repeatedly held the lying-inwait special circumstance instruction here at issue does not violate the Eighth Amendment. See,
e.g., People v Sims, 5 Cal. 4th 405, 434, 20 Cal. Rptr. 2d 537 (1993). In addition, the Ninth Circuit
has specifically held that California’s “lying-in-wait circumstance is not overly broad ‘such that it
appl[ies] to every defendant convicted of murder.’” See Morales v. Woodford, 388 F.3d 1159, 1175
(9th Cir. 2004). In sum, petitioner has not shown that the state court’s reasoned opinion rejecting
this claim is contrary to, or an unreasonable application of, clearly established Supreme Court law.

19
Moreover, petitioner cannot demonstrate that any alleged error was prejudicial under Brecht.
20
To begin with, ample evidence supported the charge of lying-in-wait, including evidence that
21
petitioner first passed his victims on a trail, proceeded to an observation deck to view the trail with
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binoculars, and then approached the victims at an isolated location. See Carpenter, 15 Cal. 4th at
388-389. Given this evidence, “a jury could reasonably infer that defendant concealed his purpose,
waited and watched for an opportune time to act, and then, when his victims reached an isolated spot
where no help could be expected, made a surprise attack from a position of advantage.” Id.

27
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In an earlier order, the Court considered and denied petitioner’s Claim 46, in which
petitioner argued the inclusion of lying-in-wait as a special circumstance violates the Eighth
Amendment’s narrowing requirement.
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Moreover, petitioner was death-eligible not only because the jury found true the lying-in-wait

2

special circumstance, but also because the jury found true the multiple murder and rape-murder

3

special circumstances. See Carpenter, 15 Cal. 4th at 420. Thus, even had petitioner demonstrated

4

that the lying-in-wait special circumstance did not sufficiently narrow the class of death-eligible

5

murders, which contention, as discussed above, petitioner cannot support, petitioner’s death

6

sentence would still stand. See Brecht, 507 U.S. at 638. Consequently, petitioner fails to

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demonstrate he suffered any prejudice as a result of any alleged error.

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Accordingly, this claim will be denied.
VI.

Claim 27:

Attempted Murder Instructions

In Claim 27, petitioner contends the jury was erroneously instructed on attempted murder.
Specifically, petitioner argues that the instructions would have allowed the jury to find him guilty of
attempted murder without a finding of a specific intent to kill. According to petitioner, the allegedly
erroneous instructions violated his due process rights under the Fifth and Fourteenth Amendments,
and his right to a jury trial under the Sixth Amendment. The Sixth Amendment portion of
petitioner’s claim was raised in his second state habeas petition, and summarily denied on the merits.
The due process portion of petitioner’s claim was raised on direct appeal, and denied in a reasoned
opinion by the California Supreme Court as follows:
11.

Instructions on Attempted Murder

Defendant contends the court erroneously allowed the jury to find him guilty
of attempting to murder Haertle on an implied malice theory. We agree that
attempted murder requires express malice, i.e., an intent to kill. (People v. Collie
(1981) 30 Cal. 3d 43, 61-62 [parallel citations omitted]), but disagree that the court
misinstructed. Defendant correctly points out that in instructing on attempted
murder, the court referred to the elements of murder, which included implied malice,
and said that those “elements apply when the crime is attempted.” However, the
court also instructed that an attempt requires “a specific intent to commit the crime”
and that the “crime of attempted murder requires the specific intent to commit
murder.” “[I]t is impossible to intend to commit a murder without intending to kill.”
(People v. Coleman (1989) 48 Cal. 3d 112, 139 [parallel and additional citations
omitted].) Contrary to defendant’s claim, the district attorney also correctly noted
that “attempted murder would require the intent to unlawfully kill another human
being, the intent required for murder.”
Carpenter, 15 Cal. 4th at 391.
As discussed above, to obtain federal collateral relief for errors in the jury charge, a

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petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting

2

conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten,

3

414 U.S. 141, 147 (1973); see also Donnelly, 416 U.S. at 643. As further discussed, the instruction

4

is not to be judged in artificial isolation, but must be considered in the context of the instructions as

5

a whole and the trial record, see Estelle, 502 U.S. at 72, and, if an error is found, the court must

6

determine whether the error had a substantial and injurious effect or influence in determining the

7

jury’s verdict, see Calderon, 525 U.S. at 146-47.

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Here, petitioner fails to demonstrate that the trial court’s instructions, taken as a whole,
would have allowed the jury to convict him of attempted murder without finding a specific intent to
kill. As the California Supreme Court pointed out, and as a review of the record confirms, RT
14243-44, 14263, the jury was instructed both that an attempt “‘requires a specific intent to commit
the [particular] crime’” and that the “‘crime of attempted murder requires the specific intent to
commit murder.’” See Carpenter, 15 Cal. 4th at 391; see also Estelle, 502 U.S. at 72.
Additionally, the trial court’s instructions were reinforced by the district attorney. See Carpenter,
15 Cal. 4th at 391. There is no clearly established law holding that such instructions – which clearly
communicate that to find a defendant guilty of attempted murder, the jury must find that the
defendant had the specific intent to commit murder – are unreasonable; consequently, petitioner
cannot show the California Supreme Court’s rejection of this claim was in error under § 2254(d).

19
Further, even had petitioner been able to show error, he cannot demonstrate prejudice. See
20
Brecht. 507 U.S. at 637. Substantial evidence supported a finding of petitioner’s intent to kill,
21
including victim Haertle’s description of the shooting. Haertle testified that petitioner ordered him
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and Hansen into the bushes at gunpoint, and then shot him in the neck, facts that demonstrate
petitioner’s intent to kill Haertle.
Accordingly, this claim will be denied.

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VII.

Claim 28:

Instructions on Elements of Rape

In Claim 28, petitioner alleges that his constitutional rights were violated because the jurors
were not instructed that to convict him of the charged rape of Heather Scaggs, they had to find any

24

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non-consensual intercourse occurred prior to death. According to petitioner, such absence of

2

instruction violated his rights to due process, a jury trial, and non-arbitrary imposition of the death

3

penalty. This claim was considered and rejected by the California Supreme Court in a reasoned

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opinion on direct appeal as follows:

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12.

Instructions on Rape

Defendant contends the court should have instructed that rape requires “that
non-consensual intercourse occurred prior to death . . . .” We agree that this is the
law. “A dead body cannot be raped.” (People v. Kelly, supra, 1 Cal. 4th at p. 526.)
But the instructions adequately conveyed this law. The court instructed that rape
requires intercourse “against the will” of the victim “accomplished by means of fear
of immediate and unlawful bodily injury to such person.” It is not reasonably likely
the jury would misconstrue these instructions as allowing rape of a dead body.
(People v. Kelly, supra, 1 Cal. 4th at p. 525.) A dead body can neither have a “will”
nor “fear . . . bodily injury.” The instructions were different in the cases defendant
cites. (People v. Sellers (1988) 203 Cal. App. 3d 1042, 1050 [parallel citation
omitted] [defense theory was that intercourse occurred after death, and the “trial court
ruled, as a matter of law, it was irrelevant whether sexual penetration took place
before or after the victim was dead”]; People v. Kelly, supra, 1 Cal. 4th at p. 526 [trial
court instructed, “It is legally possible to rape a dead body;”].) “If defendant believed
that the instruction was incomplete or needed elaboration, it was his responsibility to
request an additional or clarifying instruction.” (People v. Bell (1989) 49 Cal. 3d
502, 550 [parallel and additional citations omitted].) He made no such request,
undoubtedly because the standard instructions were clear enough, and the defense
theory of the case was not that defendant killed Scaggs and then had intercourse, but
that he did not have intercourse.
Carpenter, 15 Cal. 4th at 391-392.
Petitioner cannot demonstrate that the state court’s rejection of this claim was contrary to, or

19

involved an unreasonable application of, clearly established United States Supreme Court law. 28

20

U.S.C. § 2254(d)(1). As discussed above, to obtain federal collateral relief for errors in the jury

21

charge, a petitioner must show that the challenged instruction by itself so infected the entire trial that

22

the resulting conviction violates due process. See Estelle502 U.S. at 72; Cupp, 414 U.S. at 147. In

23

this case, petitioner has not demonstrated that the instruction itself was in error, or that it in any

24

manner mis-stated the applicable law. As the California Supreme Court reasonably found, the

25

instructions clearly conveyed that a conviction for rape required a victim who was alive at the time

26

of the rape. See Carpenter, 15 Cal. 4th at 391-392.

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Further, even if petitioner had been able to demonstrate that the instruction was erroneous, he
would not be entitled to relief on this claim, as he is unable to show prejudice. See Brecht. 507 U.S.
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at 637. As the state court correctly noted, petitioner’s defense at trial was that no rape occurred, not

2

that intercourse occurred after death.

3
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Accordingly, this claim will be denied.
VIII. Claim 29:

Jury Instructions Regarding Petitioner’s Out-of-Court Statements

In Claim 29, petitioner contends the trial court’s refusal to instruct the jury as to two of his

6

out-of-court statements violated his federal constitutional right to due process. Petitioner argues

7

these instructional errors at trial violated his due process rights under the Fifth and Fourteenth

8

Amendments, and resulted in the arbitrary imposition of the death penalty in violation of his Eighth

9

Amendment rights. This claim was considered by the California Supreme Court in a reasoned

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opinion on direct appeal as follows:
13. Instructions on Defendant’s Out-of-court Statements

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The court refused the prosecution request to instruct (1) that the jury must
view evidence of defendant’s oral admissions or confession “with caution” (the
cautionary instruction), and (2) that the corpus delicti of a crime must be proved
independently of defendant’s admission or confession (the corpus delicti instruction).
Defendant contends the court erred. He focuses on two items of evidence:
(1) Haertle’s testimony that defendant looked at Hansen and said, “‘I want to rape
you’”; and (2) evidence that defendant told the police investigating Scaggs’s
disappearance, “‘I just pray that nobody finds Heather’s body, or that in fact she has
been raped.’” We conclude the court should have given the cautionary, but not the
corpus delicti, instruction. The error was harmless.
a. Cautionary Instruction
When the evidence warrants, the court must give the cautionary instruction
sua sponte. ( People v. Lang (1989) 49 Cal.3d 991, 1021 [264 Cal.Rptr. 386, 782 P.2d
627]; People v. Beagle (1972) 6 Cal.3d 441, 455 [99 Cal.Rptr. 313, 492 P.2d 1].)
Defendant’s statement of intent to rape Hansen was part of the crime itself. The initial
question is whether it is the sort of statement that requires the cautionary instruction.
In Beagle, we found the court erred in failing to give sua sponte either the cautionary
or the corpus delicti instruction. ( People v. Beagle, supra, 6 Cal.3d at p. 455.) We
explained: “For purposes of requiring independent evidence of the corpus delicti and
cautionary instructions, we have not distinguished between actual admissions
[citation] and pre-offense statements of intent [citation]. [Citations.]” ( Id. at p. 455,
fn. 5.) We stated that although the risk of conviction because of a false preoffense
statement alone is less than the risk of conviction upon a false confession or
admission, “we find the risk of an unjust result sufficient to justify our broader rule.”
(Ibid.)
One of the cases we cited in Beagle was People v. Ford (1964) 60 Cal.2d 772,
780-784, 799 [36 Cal.Rptr. 620, 388 P.2d 892], where we found the court should
have given the cautionary instruction regarding evidence of defendant’s statements
during the entire course of the events surrounding the crime, including some just
before and some just after the fatal shooting. The rationale behind the cautionary
instruction suggests it applies broadly. “The purpose of the cautionary instruction is
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to assist the jury in determining if the statement was in fact made.” ( People v.
Beagle, supra, 6 Cal.3d at p. 456.) This purpose would apply to any oral statement of
the defendant, whether made before, during, or after the crime. Therefore, the court
should have given the cautionary instruction at least as to defendant’s statement to
Hansen.
We apply the normal standard of review for state law error: whether it is
reasonably probable the jury would have reached a result more favorable to defendant
had the instruction been given. ( People v. Stankewitz (1990) 51 Cal.3d 72, 94 [270
Cal.Rptr. 817, 793 P.2d 23]; People v. Beagle, supra, 6 Cal.3d at p. 456.) Defendant
argues a violation of state law also violates federal due process, thus mandating the
more stringent standard for federal constitutional error. He is wrong. Mere
instructional error under state law regarding how the jury should consider evidence
does not violate the United States Constitution. ( Estelle v. McGuire (1991) 502 U.S.
62, 71-75 [112 S.Ct. 475, 481-484, 116 L.Ed.2d 385].) Failure to give the cautionary
instruction is not one of the “ ‘very narrow[]’’” categories of error that make the trial
fundamentally unfair. ( Id. at p. 73 [112 S.Ct. at p. 482].)
Under this standard, the error was harmless. Haertle’s testimony was
uncontradicted. The statement he testified defendant made consisted of five simple
words, spoken when defendant had Haertle’s full attention. There was “no evidence
that the statement was not made, was fabricated, or was inaccurately remembered or
reported.” ( People v. Stankewitz, supra, 51 Cal.3d at p. 94.) Moreover, the court
fully instructed the jury on judging the credibility of a witness, thus providing
guidance on how to determine whether to credit the testimony. Accordingly, there is
no reasonable probability the error was prejudicial; indeed, we would even find the
error harmless beyond a reasonable doubt.
The same applies to defendant’s statement to the police even assuming,
contrary to the trial court’s finding, that it was an admission. The defense did not
express concern at the court’s ruling. As the cautionary instruction would have
defined an “admission,” the defense may have preferred it not be given. This
circumstance does not obviate the court’s sua sponte duty, but may be considered in
determining prejudice. Moreover, the evidence was uncontradicted. Defendant made
the statement to two police officers who were, no doubt, carefully listening for any
possibly incriminating remarks. The statement was also insignificant relative to the
other evidence.
b. Corpus Delicti Instruction
Defendant argues the court had to give the corpus delicti instruction regarding
the evidence that he told Hansen he wanted to rape her. We disagree. We have
extended the corpus delicti rule to preoffense statements of later intent as well as to
postoffense admissions and confessions ( People v. Beagle, supra, 6 Cal.3d at p.
455), but not to a statement that is part of the crime itself. (Cf. People v. Ford, supra,
60 Cal.2d at pp. 799-800 [involving the cautionary instruction but not the corpus
delicti instruction].) A statement to the victim of current intent can itself supply the
corpus delicti. Unlike the cautionary instruction, the corpus delicti rule is designed to
provide independent evidence that the crime occurred, not to help determine whether
the statement was made. Its principle reason is to ensure “that the accused is not
admitting to a crime that never occurred.” ( People v. Jennings (1991) 53 Cal.3d 334,
368 [279 Cal.Rptr. 780, 807 P.2d 1009]; see People v. Manson (1977) 71 Cal.App.3d
1, 42 [139 Cal.Rptr. 275] [The rule “guard[s] against a defendant confessing to a
crime which was never committed.”].) Defendant’s statement to Hansen of present
intent was part of the crime; it could not be a confession to a crime that never
occurred. That statement of intent did not have to be independently proved.
Accordingly, the court properly refused to give the corpus delicti instruction.
27

1

Carpenter, 15 Cal. 4th at 392-94.

2

A.

3

A trial court’s refusal to give an instruction does not alone raise a ground cognizable in a

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Applicable Law

federal habeas corpus proceeding. See Dunckhurst v. Deeds, 859 F.2d at 114. To obtain federal
collateral relief for errors in the jury charge, a petitioner must show that the failure to instruct by
itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502
U.S. at 72; see also Calderon v. Coleman, 525 U.S. at 146 (citing Brecht v. Abrahamson, 507 U.S. at
637). A habeas petitioner is not entitled to relief unless the instructional error resulted in “actual
prejudice.” Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
The burden of demonstrating that an erroneous jury instruction was so prejudicial that it
would support a collateral attack on the constitutionality of a state court’s judgment is “even greater

12
than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S.
13
145, 154 (1977). A habeas petitioner whose claim involves a failure to give a particular instruction
14
bears an “especially heavy burden.” Id. at 155. The instructional error may not be judged in
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artificial isolation, but must be considered in the context of the instructions as a whole and the trial
record. See Estelle, 502 U.S. at 72.
B.

Cautionary Instruction

Petitioner first claims it was constitutional error for the trial judge to refuse to instruct the
jury that two of his out-of-court statements, specifically, his statement of intent to rape Hansen and
his statement to the police investigating Scaggs’s disappearance, should be viewed with caution.
In evaluating this claim, the California Supreme Court reasoned that “the [trial] court should
have given the cautionary instruction at least as to [petitioner’s] statement to Hansen,” but that

24

“[m]ere instructional error under state law regarding how the jury should consider evidence does not

25

violate the United States Constitution.” Carpenter, 15 Cal.4th at 393 (citing Estelle, 502 U.S. at 71-

26

75). The state court reasoned that any error stemming from the failure to instruct the jury on the

27

statements did not have a substantial or injurious effect on the jury’s verdict, and, consequently, that

28

there was no reasonable probability the error was prejudicial or “so infect[ed] the entire trial that the

28

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resulting conviction violate[d] due process.” Id. (citing Estelle, 502 U.S. at 72).

2

Petitioner first argues the state court’s conclusion was unreasonable in light of the

3

prosecution’s use of his statement to Hansen as direct, contemporaneous evidence of intent. He

4

argues the case contained no circumstantial evidence of intent to rape in the form of physical acts

5

with sexual connotations11 and thus that the jury must have found, on the basis of this statement

6

alone, that petitioner had formed the requisite intent necessary to rape Hansen. Petitioner contends

7

the trial court’s error was necessarily prejudicial, because there is a reasonable probability that the

8

jury would have found differently had a cautionary instruction been given; he asserts that the

9

absence of the cautionary instruction here so affected the jury as to constitute a violation of his right

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to a fundamentally fair trial.
Second, petitioner contends the state court was unreasonable to conclude that the failure to
give a cautionary instruction about his statement to the officer investigating Scaggs’s disappearance
did not constitute prejudicial error at the guilt phase. According to petitioner, the prosecution’s use
of the statement as evidence of guilty knowledge that he had committed rape, without a cautionary
instruction, was taken by the jury to demonstrate consciousness of guilt.
Petitioner fails to show the state court’s denial of this claim was contrary to, or an
unreasonable application of, clearly established United States Supreme Court law. He presents no
evidence that, had the trial court agreed to instruct the jury as petitioner asserts was required, the

19
result of petitioner’s entire trial would have been different. See Brecht, 507 U.S. at 637. Petitioner
20
does not cite to any United States Supreme Court authority, nor is this Court aware of any federal
21
precedent, that supports his assertion that the lack of a cautionary instruction constituted reversible
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error. He notes only that the issues of his intent to rape Hansen and whether or not he raped Scaggs
were “vigorously contested” by the defense.
As noted by the California Supreme Court, however, the cautionary instruction is intended to
assist the jury in determining whether a statement attributed to the defendant was in fact made. In
examining potential prejudice based on the trial court’s failure to give such instruction, the
11

As discussed above, in connection with Claim 25, physical contact of a sexual nature is not
a prerequisite to proof of attempted rape under California law.
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reviewing court had a duty to “see if there was any conflict in the evidence about the exact words

2

used, their meaning, or whether the admissions were repeated accurately.” See People v. Pensiger,

3

52 Cal.3d 1201, 1268 (1991). In that regard, there was no doubt that both statements were in fact

4

made by the defendant, and the trial court “fully instructed the jury on judging the credibility of a

5

witness, thus providing guidance on how to determine whether to credit the testimony.” Carpenter,

6

15 Cal.4th at 393. Although the defense “vigorously contested” the issues of intent to rape Hansen

7

and whether petitioner raped Scaggs, disagreement and argument at trial on contested issues does

8

not demonstrate that the admission of the above-referenced statements without a cautionary

9

instruction, albeit an error under state law, was an unreasonable application of Supreme Court law.

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Moreover, without evidence of actual prejudice, the absence of a cautionary instruction could not
have so infected the entire trial that the resulting convictions violated due process, nor could such
alleged error have had a substantial or injurious impact on the jury’s verdict. See Brecht, 507 U.S. at
638. In sum, the California Supreme Court’s finding as to this claim was reasonable.
Accordingly, the claim will be denied.
C.

Corpus Delicti Instruction

Petitioner also claims the trial judge erred in refusing to provide a corpus delicti instruction
in connection with his statement to Hansen as to his intent to rape her. He argues there was no
independent proof of the attempted rape and related felony-murder special circumstance, and thus

19
that the trial court’s failure to instruct the jury that the corpus delicti of the attempted rape needed to
20
be proved independently of petitioner’s statement affected the jury’s verdict on that count.
21
The California Supreme Court denied this claim, noting that “[u]nlike the cautionary
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instruction, the corpus delicti rule is designed to provide independent evidence that the crime
occurred, not to help determine whether the statement was made.” Carpenter, 15 Cal.4th at 394.
The instruction is meant to ensure “‘that the accused is not admitting to a crime that never
occurred.’” Id. (citing People v. Jennings, 53 Cal.3d 334, 368 (1991)). Here, the state court
reasonably concluded that petitioner’s statement to Hansen was part of the crime itself rather than a
confession or admission related to the crime. Consequently, the corpus delicti rule was not

30

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implicated thereby, and the California Supreme Court’s conclusion that the trial court properly

2

refused to give the corpus delicti instruction was reasonable as well.

3

Moreover, even if petitioner were correct that state law at the time required such instruction

4

be given, petitioner fails to cite to any clearly established United States Supreme Court precedent to

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support his contention that any such instructional error violated his federal constitutional rights and

6

entitles him to federal relief, nor has he shown that the absence of such instruction was an error that

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rendered his trial fundamentally unfair or resulted in arbitrary imposition of the death penalty.

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Accordingly, this claim will be denied.
IX.

Claim 30:

Felony Murder Instructions

In Claim 30, petitioner contends the trial court’s instructions regarding felony murder were
in error. According to petitioner, such alleged failure violated his rights to due process and to a jury
trial. This claim was considered and rejected by the California Supreme Court in a reasoned opinion
on direct appeal as follows:
14.

Instructions on Felony Murder

The court instructed on felony murder as a theory of first degree murder. It
also instructed that if the jury unanimously agreed defendant was guilty of first
degree murder, it was not required to agree on a theory. Defendant argues that the
court had to either “specify malice as an element of felony murder” or require
unanimity as to theory. He is incorrect on both points. (People v. Pride (1992) 3 Cal.
4th 195, 249-250 [parallel and additional citations omitted].) . . . There is [] only a
“single, statutory offense of first degree murder.” (People v. Pride, supra, 3 Cal. 4th
at p. 249 [additional citation omitted].)
Moreover, any error was harmless. The jury found defendant raped one
murder victim and attempted to rape the other and found true the rape-murder special
circumstance as to both and the lying-in-wait special circumstance as to Hansen. The
court instructed that intent to kill was required for both special circumstances. As to
both murders, therefore, the jury unanimously both agreed with a first-degree felony
murder theory and found an intent to kill, i.e., express malice. (People v. McPeters,
supra, 2 Cal. 4th at p. 1185.)
Carpenter, 15 Cal. 4th at 394-395.

25

As petitioner acknowledges, he cannot demonstrate that the state court opinion was contrary

26

to, or involved an unreasonable application of, clearly established United States Supreme Court law.

27

See 28 U.S.C. § 2254(d)(1). Specifically, petitioner concedes this claim is foreclosed by Schad v.

28

Arizona, 501 U.S. 624 (1991), as well as by Sullivan v. Borg, 1 F. 3d 926 (9th Cir. 1993). In Schad,
31

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the Supreme Court held the Constitution is not violated “[i]f a State’s courts have determined that

2

certain statutory elements are mere means of committing a single offense, rather than independent

3

elements of the crime.” Schad, 501 U.S. at 636-637. In Sullivan, the Ninth Circuit recognized that

4

“California continues to characterize first-degree murder as ‘a single crime as to which a verdict

5

need not be limited to any one statutory alternative’” see Sullivan, 1 F. 3d at 929 (quoting Schad,

6

501 U.S. at 630-631), and held there was no due process violation when the instructions allowed the

7

jury to convict on a first-degree murder charge without requiring unanimity as to whether the murder

8

was felony murder or premeditated and deliberate murder, id. at 927-929.

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Accordingly, this claim will be denied.
X.

Claim 31:

Circumstantial Evidence Instructions

In Claim 31, petitioner contends certain guilt phase instructions improperly reduced the
prosecution’s burden of proof, thereby violating his rights to due process, to reliable factfinding, and
to a jury trial. In that regard, petitioner challenges the language of CALJIC No. 3.34, by which the
jurors were instructed that they “must assume the defendant was of sound mind.” Petitioner also
argues that certain guilt phase instructions regarding circumstantial evidence unconstitutionally
reduced the prosecution’s burden of proof; specifically, petitioner challenges the use of the word
“appears” in CALJIC No. 2.01, which instruction stated in relevant part: “If . . . one interpretation
of such [circumstantial] evidence appears to you to be reasonable and the other interpretation to be

19
unreasonable, it would be your duty to accept the reasonable interpretation and to reject the
20
unreasonable.” See CALJIC No. 2.01 (emphasis added). He also challenges similar language
21
contained in CALJIC Nos. 2.02 (circumstantial evidence of specific intent), 8.83 (circumstantial
22
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evidence of special circumstances), and 8.83.1 (circumstantial evidence of mental state for special
circumstances), all of which were given to the jury at the guilt phase. This claim was denied on the
merits on direct appeal in a reasoned opinion in which the California Supreme Court noted it had
upheld these instructions on more than one occasion in the past. See Carpenter, 15 Cal. 4th at 396.
The Due Process Clause of the Fourteenth Amendment protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the

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crime with which he or she is charged. See In re Winship, 397 U.S. 358, 364 (1970). This

2

constitutional principle prohibits the state from using evidentiary presumptions in a jury charge that

3

have the effect of relieving the state of its burden of persuasion beyond a reasonable doubt as to

4

every essential element of a crime. See Yates v. Evatt, 500 U.S. 391, 400-03 (1991); Carella v.

5

California, 491 U.S. 263, 265-66 (1989). As long as the trial court instructs the jury on the

6

necessity that defendant’s guilt be proved beyond a reasonable doubt, however, the Constitution

7

does not require that any particular form of words be used in advising the jury of the government’s

8

burden of proof. Victor v. Nebraska, 511 U.S. 1, 6 (1994). Rather, taken as a whole, the

9

instructions must correctly convey to the jury the concept of reasonable doubt. See id. The proper

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inquiry is “whether there is a reasonable likelihood that the jury understood the instructions to allow
conviction based on proof insufficient to meet the Winship standard.” Id. at 6.
Here, petitioner fails to demonstrate that the state court’s decision regarding CALJIC No.
3.34 was unreasonable in light of clearly established Supreme Court law. Because there was no
contested issue at trial regarding petitioner’s sanity or soundness of mind, the instruction directing
the jury to assume petitioner was of “sound mind” served merely to properly instruct the jury to
refrain from speculating regarding a subject that was not at issue. The prosecution was not required
to prove petitioner was of “sound mind” as an element of any charged offense, and, consequently,
the instruction did not relieve the prosecution of its burden to prove every essential element of the

19
crime beyond a reasonable doubt. See Francis, 471 U.S. at 313.
20
Petitioner likewise has not demonstrated that the state court’s decision as to CALJIC Nos.
21
2.01, 2.02, 8.83 and 8.83.1 is unreasonable. Petitioner cannot demonstrate that the instructions
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given at his trial regarding reasonable doubt were inadequate, nor is there any evidence that the
challenged instructions compelled the jurors to disregard the reasonable doubt standard. Moreover,
petitioner cites to no case that calls into question the constitutionality of the cited jury instructions,
which permissibly instructed the jurors to accept reasonable interpretations of the evidence. See,
e.g., People v. Jennings, 53 Cal. 3d 334, 386 (1991) (holding CALJIC Nos. 2.01 and 2.02
permissibly “require the jury to reject unreasonable interpretations of the evidence, and to accept the

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reasonable version of the events which fits the evidence”). Indeed, the California Supreme Court

2

has consistently held that CALJIC No. 2.01 does not reduce the state’s burden of proof. See, e.g.,

3

People v. Brasure, 42 Cal. 4th 1037, 1058 (2008); People v. Snow, 30 Cal. 4th 43, 95 n.18 (2003);

4

Jennings, 53 Cal. 3d at 386 (1991) (holding “[n]o reasonable juror would have interpreted these

5

instructions to permit a conviction where the evidence shows that defendant was ‘apparently’ guilty,

6

yet not guilty beyond a reasonable doubt”). Similarly, the California Supreme Court has

7

consistently upheld CALJIC No. 2.02 and related instructions. See, e.g., People v. Hines, 15 Cal.

8

4th 997, 1049-1050 (1997).

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And while neither the United States Supreme Court nor the Ninth Circuit appear to have
squarely addressed CALJIC No. 2.01, No. 2.02, or the related instructions, at least one district court
has held CALJIC No. 2.01 does not reduce the state’s burden of proof and is not in violation of
clearly established federal law. See Lara v. Allison, 2011 WL 835594, *13-14 (C.D. Cal. 2011).12
In sum, there is no “reasonable likelihood that the jury understood the instructions to allow
conviction based on proof insufficient to meet the Winship standard.” See Victor, 511 U.S. at 6.

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Accordingly, this claim will be denied.
XI.

Claim 44:

Trial Court Misconduct

In Claim 44, petitioner contends the trial court committed misconduct in the course of an
exchange with a witness during the penalty phase of the trial. The exchange began with the trial

19
judge inquiring of the witness, who was a military police officer at the Presidio, as to the age of the
20
Presidio. When the witness replied that the Presidio had originally been Fort Point, the following
21
occurred:
22
The Court: That is the place where all the guys that are trying to escape from

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the prison try to swim to and don’t make it?
12

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The version of CALJIC No. 2.01 at issue in Lara, as well as in Brasure and Snow, differed
slightly from the version given at petitioner’s trial; the instruction in Lara stated: “If . . . one
interpretation of this [circumstantial] evidence appears to you to be reasonable and the other
interpretation to be unreasonable, you must accept the reasonable interpretation and reject the
unreasonable.” Lara, 2011 WL835594, *13. The version of CALJIC No. 2.02 at issue in Hines was
substantially similar to the one given at petitioner’s trial; the instruction in Hines stated: “If . . . one
interpretation of the evidence . . . appears to you to be reasonable and the other interpretation to be
unreasonable, it would be your duty to accept the reasonable interpretation and reject the
unreasonable.” Hines, 15 Cal. 4th at 1049-1050, n.11.
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The Witness: Well, I don’t know which direction they swim, Your Honor.

2

RT 14426. According to petitioner, the above exchange amounts to judicial misconduct in violation

3

of petitioner’s rights to, inter alia, due process, a fair trial, and trial by an impartial jury. This claim

4

was rejected by the California Supreme Court on the merits in a summary opinion.

5

A claim of judicial misconduct by a state judge in the context of federal habeas review does

6

not simply require that the federal court determine whether the state judge committed judicial

7

misconduct; rather, the question is whether the state judge’s behavior “rendered the trial so

8

fundamentally unfair as to violate federal due process under the United States Constitution.”

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Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). To sustain a claim of judicial misconduct on

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federal habeas, “there must be an extremely high level of interference by the trial judge which
creates a pervasive climate of partiality and unfairness.” Id. Ill-considered comments do not
amount to judicial misconduct. See Lang v. Callahan, 788 F. 2d 1416, 1418 (9th Cir. 1986).
Here, the trial court’s brief exchange about escape attempts to Fort Point did not render
petitioner’s trial fundamentally unfair, nor did it come close to creating “a pervasive climate of
partiality and unfairness.” See Duckett, 67 F. 3d at 740. Petitioner argues that the trial court’s
statements invited the penalty phase jury to speculate that a prisoner serving a life sentence would
perhaps be able to leave prison. In support of his argument, however, petitioner cites to cases that
are readily distinguishable. In Simmons v. South Carolina, 512 U.S. 154, 161-162 (1994) and

19
Hamilton v. Vasquez, 17 F. 3d 1149, 1159-1164 (9th Cir. 1994), for example, the issue was not
20
judicial misconduct, but instructional error, specifically, whether the trial court’s instructions misled
21
the jury as to the defendant’s eligibility for parole or other release if given a life sentence.
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Moreover, there was nothing here in the trial judge’s brief exchange with the witness that was
misleading, nor did the judge’s single comment suggest that petitioner was likely to escape from
prison if he was given a life sentence. Consequently, petitioner fails to demonstrate that the
California Supreme Court’s decision denying this claim involved an unreasonable application of
Supreme Court law, or an unreasonable determination of the facts.
Accordingly, this claim will be denied.

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2

XII.

Claim 48:

Modification of Verdict

In Claim 48, petitioner contends the trial court’s decision not to modify the death verdict was

3

based on improper factors and violated his federal Constitutional rights. This claim was rejected by

4

the California Supreme Court in a reasoned opinion as follows:

5

E. Automatic Motion to Modify Death Verdict

6

Defendant contends the court committed several errors in denying the
automatic motion to modify the judgment. (Pen. Code, § 190.4, subd. (e).) Before
ruling, the court read the probation report, which attached letters containing
information about the victims and urging the death penalty, and heard from Heather
Scaggs’s mother, who also urged the death penalty. Defendant is correct that in ruling
on the motion to modify, the court reviews only the evidence presented to the jury,
which included neither the probation report, nor the letters, nor the mother’s
statement. ( People v. Cummings, supra, 4 Cal.4th at pp. 1330-1331; People v.
Williams (1988) 45 Cal.3d 1268, 1329 [248 Cal .Rptr. 834, 756 P.2d 221].) After the
ruling of this case, we stated that “the preferable procedure is to defer reading the
probation report until after ruling on the automatic application for modification of
verdict.” ( People v. Lewis (1990) 50 Cal.3d 262, 287 [266 Cal .Rptr. 834, 786 P.2d
892].) “However, absent a contrary indication in the record, we assume that the court
was not influenced by the report in ruling on the motion.” ( People v. Livaditis, supra,
2 Cal.4th at p. 787.) The record here shows the court was not influenced by anything
other than the evidence presented to the jury.
The court expressly recognized its duty to “review the evidence” and stated its
ruling was based on “the evidence.” Its discussion of the crimes and factors in
aggravation mentioned only matters presented to the jury. (By contrast, the court did
consider–and rejected as “incredible”–a letter from Dr. Haney trying to bolster his
testimony in mitigation.) The court gave exhaustive reasons for denying the motion,
“all of which were based on, and amply supported by, the evidence presented at
trial.” ( People v. Livaditis, supra, 2 Cal.4th at p. 787.)
Defendant argues the court found as aggravating two factors that can only be
mitigating. The court stated that Penal Code section 190.3, factor (d) (“Whether or
not the offense was committed while the defendant was under the influence of
extreme mental or emotional disturbance.”), “supports aggravation” because the
“evidence shows that the defendant carefully planned each of these homicides” and
“was not under the influence of any extreme mental or emotional disturbance.”
Defendant is correct that the mere absence of a mitigating factor is not itself
aggravating ( People v. Davenport (1985) 41 Cal.3d 247, 289-290 [221 Cal .Rptr.
794, 710 P.2d 861]), but “the court may properly consider in aggravation the
‘objective circumstances of the killing.’” ( People v. Cooper, supra, 53 Cal.3d at p.
848.) Any error in considering these circumstances under the wrong statutory factor
did not affect the court’s decision. ( Ibid.) The court also found aggravating some of
the circumstances of defendant’s life and relationship with his parents. The statement,
while also technically error, came in the context of considering as mitigating other
aspects of that same relationship and was not prejudicial.
Defendant argues the court misunderstood the concept of mitigation. The
record does not support the claim. The court discussed the mitigating evidence in
meticulous detail. Defendant pulls from context isolated statements and argues the
court assumed “that mitigation meant little, if anything, more than insanity or
diminished capacity.” For example, defendant quotes the court as saying, “There is,

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however, no evidence the defendant lacks the capacity to conform his conduct to the
norms of society.” The court went on to observe, “There is no evidence the
defendant ever suffered from any kind of insane delusion, paranoia, schizophrenia, or
any mental disease or defect. He is described as well above average in intelligence
and capable of learning. He has held good, responsible jobs during his life. He is
easily trainable in various occupations.” (Italics added.) These comments were
unobjectionable. Although evidence of the defendant’s mental state does not have to
rise to the level of insanity or diminished capacity to be offered or considered in
mitigation, the fact that it is not of that caliber is certainly relevant to its weight. The
court did consider the evidence in mitigation; it merely found the aggravating
circumstances “far” outweighed the mitigating. ( People v. Edwards, supra, 54 Cal.3d
at p. 847.) Defendant also argues without merit the court improperly considered his
age in aggravation. ( People v. Douglas (1990) 50 Cal.3d 468, 539)
In addition to the mitigating and aggravating factors, the court discussed the
strength of the evidence that defendant committed these crimes. In part, the court
cited the fact the killings were “done with remarkable similarity.” Among the
similarities the court cited was that each of the victims was “a young Caucasian,” and
each of the women was “slender and extremely attractive.” Defendant seeks to
transform this description of the similarity of the crimes into an implication “that the
moral worth of the victims is, and the outcome of the sentencing should be, related to
the victims’ race and other immutable personal characteristics.” He suggests the
court viewed the victims’ race as a reason for imposing the death penalty, and goes so
far as to argue the judge must be disqualified so he can have a hearing before a court
“uninfluenced by ... consideration of the victims’ race.”
Defendant’s accusation that the court viewed race as a reason to impose the
death penalty is as serious as it is baseless. The similarity of the crimes supports the
inference that one person, defendant, committed each, and the court legitimately
commented on that similarity in ruling on the modification motion. Nowhere in
discussing the aggravating or mitigating factors did the court remotely suggest it
considered the “moral worth” or race of the victims. We cannot condemn too strongly
defendant’s distortion of the court’s comments in his attempt to inject a racial issue
into this case where none exists.
Any error in the court’s lengthy statement of reasons for denying the
modification motion was harmless. The court did not consider the question close,
which is most reasonable considering the evidence. We find no reasonable possibility
any error affected the ruling. ( People v. Benson, supra, 52 Cal.3d at p. 813; People v.
Rodrigues, supra, 8 Cal.4th at p. 1197.)
Carpenter, 15 Cal. 4th at 423-425.

22

Petitioner fails to demonstrate that the state court’s rejection of this claim was contrary to, or

23

involved an unreasonable application of, clearly established United States Supreme Court law.13 See

24

28 U.S.C. § 2254(d)(1). Petitioner first argues that it was reversible error for the trial court to rely

25
13

26
27
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As with Claim 22, the Court finds unpersuasive petitioner’s argument that this claim must
be considered de novo because the California Supreme Court did not address federal law in its
rejection of the claim. As noted, a state court’s decision need not cite to, and a state court need not
be aware of, federal law to pass muster under AEDPA; rather, “so long as neither the reasoning nor
the result of the state-court decision contradicts [federal law],” the decision may be upheld. Early v.
Packer, 537 U.S. at 8.
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on material contained in the probation report when it denied petitioner’s motion to modify the

2

verdict. Petitioner’s argument must fail. To begin with, at the time of petitioner’s trial, there was no

3

California or federal law forbidding the review of a probation report prior to ruling on a motion for

4

modification of the verdict. Subsequently, in People v. Lewis, 50 Cal. 3d 262 (1990), the California

5

Supreme Court has stated it is “preferable” for a trial court to defer review of the probation report

6

until after a modification motion is resolved, see id. at 287, but even after Lewis, it generally is not

7

considered reversible error for a trial court to first review the probation report, see People v.

8

Livaditis, 2 Cal. 4th 759, 787 (1992). Moreover, the California Supreme Court concluded that “[t]he

9

record here shows that the [trial] court was not influenced by anything other than the evidence

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presented to the jury,” People v. Carpenter, 15 Cal. 4th at 423, and petitioner fails to demonstrate
such conclusion is unreasonable under clearly established federal law.
Petitioner next argues that it was error for the trial court to refer to the absence of two
mitigating factors, extreme mental or emotional disturbance and certain aspects of his familial
relationship, when it denied petitioner’s motion to modify the verdict. While the California Supreme
Court agreed it was error to refer to the absence of a mitigating factor as potentially aggravating, the
Supreme Court also held any such error was not prejudicial, in that the objective circumstances of a
killing may be properly considered in aggravation and the trial court’s reference to petitioner’s
family “came in the context of considering as mitigating other aspects of that same relationship.”

19
See Carpenter, 15 Cal. 4th at 423-424 (emphasis in original). Further, given the strength of the
20
aggravating evidence, including the circumstances of the charged crimes and petitioner’s long
21
criminal history of rape, robbery and murder, petitioner cannot demonstrate any such error was
22
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prejudicial; there was substantial aggravating evidence to support both the jury’s sentence of death
and the trial court’s refusal to modify that sentence. See, e.g., Zant v. Stephens, 462 U.S. 862, 884
(1983) (holding “a death sentence supported by at least one valid aggravating circumstance need not
be set aside . . . simply because another aggravating circumstance is “invalid.”’)
Petitioner also suggests that the trial court’s reference to the appearance of the victims, when
it cited the similarity of the charged crimes as an element of the strength of the evidence that

38

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petitioner was the perpetrator, in some way suggests that the trial court viewed the race of the

2

victims as a justification for imposition of the death penalty. See Carpenter, 15 Cal. 4th at 424-425.

3

As the California Supreme Court reasonably found, such an accusation is “baseless”; rather, as that

4

court observed, “[t]he similarity of the crimes supports the inference that one person, defendant,

5

committed each, and the [trial] court legitimately commented on that similarity in ruling on the

6

modification motion.” Id. Petitioner cites to no clearly established federal law suggesting that the

7

state court’s decision was unreasonable.

8

Lastly, petitioner argues that multiple alleged errors in the trial court’s decision to deny the
request for modification, specifically, the alleged errors discussed above, led to prejudice. As the

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For the Northern District of California

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state court reasonably found, however, there were no such errors to multiply. At most, there was

11
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one error, the trial court’s reference to the absence of mitigation as potentially aggravating, and that
error was not prejudicial, particularly considering the exceptional number of aggravating
circumstances in the case.
Accordingly, no constitutional violation having been shown, this claim will be denied.

16

XIII. Claim 56:
Petitioner’s Presence During Certain Discussions
In Claim 56, petitioner contends his constitutional right to be present at all critical stages of

17

his criminal proceedings was violated because he was not present during certain discussions between

18

the trial court and his attorney. In particular, petitioner alleges he was absent at five separate points

19

in the proceedings, three of which were considered by the California Supreme Court in a reasoned

20

opinion on direct appeal as follows.

21
22
23
24
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4. Defendant’s Absence From Proceedings
During selection of the penalty jury, defense counsel asked that the court
consider requests to be excused for hardship at the bench rather than in front of the
other jurors. The court agreed if defendant waived his right to be present at the bench.
When defense counsel was reluctant to have defendant do so, the court considered the
first few requests for hardship excusal in open court. Defense counsel again stated he
preferred to have them handled at the bench. The court yielded to this request after
defendant personally waived his right to be present. Defendant argues his waiver was
invalid because the court required it as a condition to granting his request that
hardship questions be considered at the bench. We disagree. Defendant had no right
to insist that hardship excuses be considered outside the presence of the other jurors.
(People v. Kelly (1992) 1 Cal.4th 495, 518 & fn. 3 [3 Cal .Rptr.2d 677, 822 P.2d
385]; People v. Clark (1990) 50 Cal.3d 583, 596-597 [268 Cal .Rptr. 399, 789 P.2d
127].) The Hovey rule, which requires individual questioning while death-qualifying
39

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the jury, does not extend to other matters. ( Hovey v. Superior Court, supra, 28
Cal.3d at p. 81, fn. 137.) It follows that defendant had no right to demand that the
court question individual jurors at the bench and allow him to be present there, which
would have created obvious logistical and security problems. Giving defendant a
choice did not violate his rights. Moreover, defendant’s absence from the bench
conferences regarding hardship was not prejudicial. ( People v. Hardy (1992) 2
Cal.4th 86, 178 [5 Cal .Rptr.2d 796, 825 P.2d 781]; People v. Beardslee, supra, 53
Cal.3d at pp. 102-103; People v. Grant (1988) 45 Cal.3d 829, 845-846 [248 Cal .Rptr.
444, 755 P.2d 894].)
Before selecting the guilt jury, defense counsel suggested that, rather than
sequestered questioning regarding the death penalty (see Hovey v. Superior Court,
supra, 28 Cal.3d 1), the court explain the procedure of having two juries to the entire
panel of prospective jurors and then ask if anyone could not sit on the case. The court
agreed and stated it would ask necessary follow-up questions at the bench. Therefore,
the court sometimes asked prospective jurors at the bench about their views on the
death penalty and other matters. Apparently, defendant was not present at the bench
conferences, although he was in court. Defendant contends that his “presence would
have insured that the prospective jurors would have appreciated the magnitude and
implication of the questions they were being asked.” We disagree. Defendant was in
the courtroom during the bench questioning, although apparently he was unable to
hear it. The magnitude or implication of the questions was not diminished, and
defendant suffered no prejudice. ( People v. Hardy, supra, 2 Cal.4th at pp. 177-178.)
Before he testified, Shane Williams, the witness who led the police to the
murder weapon, asked to speak to the judge. At the prosecution’s request, the court
held an in camera hearing. Although defense counsel were present, the court denied
their request that defendant be present. Williams expressed reluctance to testify
because of concern about trial publicity. The court refused to issue an order limiting
publicity and told Williams, “I don’t do favors and I don’t bargain and I don’t make
deals.” Defendant contends that the hearing involved “the witness and the judge
speaking on the record, under circumstances which might have a significant impact
on what the witness would say when he testified before the jury.” On the contrary, the
hearing had nothing to do with the substance of the witness’s testimony. Defendant
was present at all times during the actual testimony. Moreover, defendant received
daily transcripts of the proceedings. His presence at the brief proceeding bore no
substantial relationship to his opportunity to defend against the charges. ( People v.
Johnson, supra, 6 Cal.4th at p. 18.)

21 Carpenter, 15 Cal. 4th at 377-378.
22

The Supreme Court has recognized that “the right to personal presence at all critical stages of

23

the trial . . . [is a] fundamental right[] of each criminal defendant.” Rushen v. Spain, 464 U.S. 114,

24

117 (1983). The right derives from the Confrontation Clause of the Sixth Amendment and the Due

25

Process Clauses of the Fifth and Fourteenth Amendments. Campbell v. Wood, 18 F.3d 662, 671 (9th

26

Cir. 1994) (en banc). The Confrontation Clause protects a defendant’s right to face his accusers and

27

applies to every stage of a trial. See Illinois v. Allen, 397 U.S. 337, 338 (1970); see also United

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States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006) (holding Sixth Amendment protects
40

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defendant’s right to be present at sentencing). Due process, on the other hand, protects a defendant’s

2

right to be present “at any stage of the criminal proceeding that is critical to its outcome if his

3

presence would contribute to the fairness of the procedure,” see Kentucky v. Stincer, 482 U.S. 730

4

(1987), and not every event that occurs during such a proceeding is necessarily “critical,” see e.g.,

5

id. at 746 (finding no due process violation based on defendant’s exclusion from competency

6

hearing of two child witnesses in sexual abuse case, where no questions regarding substantive

7

testimony were asked); see also United States v. Mitchell, 502 F.3d 931, 973 (9th Cir. 2007) (en

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banc) (finding no violation under Due Process Clause or Confrontation Clause where trial judge met

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ex parte with Marshal on two occasions, the first to discuss security concerns regarding transfer for

United States District Court
For the Northern District of California

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change of venue and thereafter to discuss defendant’s announced refusal to be present at penalty
phase). Additionally, a defendant can waive the right to personal presence provided he does so
voluntarily, knowingly and intelligently. Campbell v. Wood, 18 F.3d at 671. Moreover, the
Supreme Court has never held the exclusion of a defendant from a critical stage of the trial
constitutes structural error, see Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc), and
the Ninth Circuit has held the right to be present at all critical stages is subject to harmless error
analysis, see id.
Here, as noted, the California Supreme Court found no constitutional violation occurred by
reason of the above-described manner in which jury selection was conducted, and, as discussed

19
below, the Court finds petitioner fails to demonstrate that the state court’s reasoned opinion is
20
contrary to, or an unreasonable application of, clearly established United States Supreme Court law,
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or that the state court’s opinion relied on an unreasonable determination of the facts.
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To begin with, petitioner cannot demonstrate that any of the proceedings referenced in the
state court’s opinion were critical under Stincer; “[the] privilege of presence is not guaranteed ‘when
presence would be useless, or the benefit but a shadow.’” See Stincer, 482 U.S. at 745 (quoting
Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934)). Petitioner personally waived any right to be
present during bench discussions concerning juror hardship, and cites to no case holding a
defendant’s presence is considered “critical” during such discussions. Moreover, even if petitioner

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could show error, he cannot demonstrate his absence during those discussions, conducted at the

2

bench at his attorney’s request, was in any way prejudicial to him. See Brecht, 507 U.S. at 637.

3

Similarly, petitioner cannot point to any federal law establishing a right for a defendant to be

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present at occasional discussions held at the bench during voir dire. Petitioner was present in the

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courtroom and has not shown how his presence at the bench would have contributed to the fairness

6

of the criminal proceedings. See, e.g. Rushen v. Spain, 464 U.S. 114, 117-18 & n.2 (1983) (finding

7

harmless any error as to ex parte communication between judge and juror regarding prosecution’s

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brief reference during trial to crime, unrelated to those charged, as to which juror had knowledge).

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Because he can show neither error nor prejudice, petitioner is not entitled to relief on the portion of

United States District Court
For the Northern District of California

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his claim pertaining to bench discussions during jury selection.

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Petitioner likewise fails to demonstrate any error or prejudice resulting from his absence at
an in camera hearing regarding media coverage, held at the request of prosecution witness Shane
Williams, or that the state court’s decision finding no error was unreasonable under federal law,
particularly given the trial judge’s denial of the special consideration sought by the witness.
Consequently, petitioner fails to show he is entitled to habeas relief on this portion of his claim. 28
U.S.C. § 2254(d). See, e.g., United States v. Gagnon, 470 U.S. 522, 527 (1985) (finding no due
process violation where defendant and his counsel not present at in camera meeting of judge, juror
and co-defendant’s counsel concerning juror’s concern on observing defendant sketching portraits of
jury).

20
In addition to the above claims pertaining to the conduct of various proceedings, the
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Supreme Court, in a reasoned opinion on direct appeal, also considered a claim based on
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proceedings concerning personal problems of petitioner’s trial counsel. Petitioner’s lead attorney,
the Public Defender, “suffered from a chronic illness that occasionally either forced a continuance of
jury selection or forced the deputy [public defender] to appear alone on [petitioner’s] behalf.”
Carpenter, 15 Cal. 4th at 373. Also during jury selection, the daughter of the deputy public defender
was a victim of a violent crime, after which he withdrew from representing petitioner and another
deputy public defender was appointed in his place. Numerous discussions with the trial judge, some

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in open court and some in chambers, were held regarding petitioner’s counsel. On direct appeal, the

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California Supreme Court found as follows:

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[D]efendant contends that some of these hearings were held in chambers in
his absence, violating his right to be present. Although the record is not always clear,
it appears that defendant was absent from the hearings in chambers; we will assume
he was. We have held, however, “that the defendant’s absence from various court
proceedings, even without waiver, may be declared nonprejudicial in situations where
his presence does not bear a ‘reasonably substantial relation to the fullness of his
opportunity to defend against the charge.’” ( People v. Johnson (1993) 6 Cal.4th 1, 18
[23 Cal .Rptr.2d 593, 859 P.2d 673], italics added in Johnson.)
Defendant’s absence from some of the discussions in chambers did not
substantially relate to his opportunity to defend against the charges. No issues related
to guilt or innocence were considered. When defendant was present, the court
explained to him the substance of what occurred. It kept him fully apprised of the
significant events and obtained his consent to what would be done. Defendant’s claim
that he was merely “presented with a fait accompli and asked whether he concurred in
it” unfairly characterizes the record. The court was always solicitous of defendant’s
wishes. The decisions on which everyone, including defendant, agreed–completing
the jury selection with [the Public Defender] alone, bringing in a new attorney, and
continuing the trial to allow new counsel to prepare–were reasonable under the
circumstances. Nothing in the record suggests that any of the defense attorneys acted
other than fully competently at all times. We see no error and no prejudice. (See also
People v. Hovey (1988) 44 Cal.3d 543, 573-574 [244 Cal .Rptr. 121, 749 P.2d 776]
[no error in excluding defendant from a hearing on the competency of his attorney].

16 Carpenter, 15 Cal. 4th at 376-377.
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As with the above-discussed claims, petitioner fails to demonstrate that the California

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Supreme Court’s decision was unreasonable under clearly established federal law. Petitioner cites to

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no case law suggesting that his presence at such in camera hearings would have contributed “to the

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fairness of the procedure.” See Stincer, 482 U.S. at 745. As the state court held, and as the record

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confirms, petitioner was kept fully apprised of the situation, and the trial court solicited his opinions

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concerning how to proceed. Petitioner agreed with the decisions made in that regard, and does not

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contend those decisions would have been different had he been present at the in camera hearings.

24

Consequently, this portion of the claim will be denied.

25

The remaining events on which this claim is based were considered and rejected on the

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merits by the California Supreme Court in a summary opinion. In particular, petitioner contends that

27

he was not present at a hearing during the penalty phase, at which hearing certain aggravating

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evidence was ruled admissible. This portion of the claim likewise is unavailing. Petitioner’s
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counsel was present at the hearing and objected to the admission of the evidence in question, and

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petitioner was present in court at the time the evidence was introduced at the trial. Even assuming,

3

arguendo, petitioner’s absence at the hearing amounted to error, this portion of the claim nonetheless

4

fails, as, given the strength and volume of the aggravating evidence in the case, petitioner is unable

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to show prejudice. See Brecht, 507 U.S. at 637.

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Accordingly, the claim will be denied in its entirety.
XIV.

Claim 58:

Fourth Amendment Claims

In Claim 58, petitioner contends certain evidence was obtained through wrongful searches
and seizures and thereafter was improperly used against him at his trial. Petitioner’s claim is

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For the Northern District of California

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unavailing. To begin with, as petitioner must and does acknowledge, federal habeas review of

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Fourth Amendment claims is barred by Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976), unless
the state did not provide an opportunity for full and fair litigation of those claims. Consequently,
even if the state court’s determination of the Fourth Amendment issues was incorrect, such error will
not be remedied in a federal habeas corpus action so long as petitioner was provided a full and fair
opportunity to litigate those issues. See Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983). “All
Stone v. Powell requires is the initial opportunity for a fair hearing,” Caldwell v. Cupp, 781 F.2d
714, 715 (9th Cir. 1986), and “such an opportunity for a fair hearing forecloses [the federal court’s]
inquiry, upon habeas corpus petition, into the trial court’s subsequent course of action,” id.

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Further, it is the existence of a state procedure allowing an opportunity for full and fair
20
litigation of Fourth Amendment claims, rather than a defendant’s actual use of those procedures, that
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bars federal habeas consideration of such claims. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th
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Cir. 1990) (denying habeas relief on Fourth Amendment claims; holding “[w]hether or not
[defendant] did in fact litigate . . . [the] Fourth Amendment claim in state court he [had] the
opportunity to do so”). California state procedure provides an opportunity for full litigation of any
Fourth Amendment claim, see id.; see also Terrovona v. Kincheloe, 912 F.2d 1176, 1178-79 (9th
Cir. 1990), cert. denied, 499 U.S. 979 (1991) (discussing factors relevant to determination of
opportunity for full and fair litigation).

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Petitioner suggests that the Stone bar should not apply in capital habeas cases and that

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AEDPA calls Stone into question. Petitioner, however, cites to no clearly established federal law

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that in any way limits Stone to non-capital and/or pre-AEDPA cases. Indeed, as respondent

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correctly points out, the relevant authority is to the contrary. (See Respondent’s Brief at 62-63 and

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cases cited therein.)

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Accordingly, this claim will be denied.

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Conclusion
For the foregoing reasons, Claims 19, 20, 22, 25, 26, 27, 28, 29, 30, 31, 44, 48, 56 and 58
in petitioner’s First Amended Petition are DENIED.
IT IS SO ORDERED.
DATED: April 1, 2014
MAXINE M. CHESNEY
United States District Judge

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