Price v. Ayers

Filing 253

ORDER Denying Claims XIII, XV, XXI, XXIII, XXVII, XXVIII, XXIX, XXX, XXXI, and XXXII. Signed by Judge Phyllis J. Hamilton on 9/25/2017. (pjhlc3, COURT STAFF) (Filed on 9/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CURTIS FLOYD PRICE,

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United States District Court
Northern District of California

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Case No. 93-cv-00277-PJH

Petitioner,

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v.

KEVIN CHAPPELL,

ORDER DENYING CLAIMS XIII, XV,
XXI, XXIII, XXVII, XXVIII, XXIX, XXX,
XXXI, AND XXXII

Respondent.

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Petitioner Curtis Floyd Price, a California capital prisoner currently incarcerated at

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San Quentin State Prison, filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254. On November 11, 2012, through his appointed counsel, Price filed a second

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amended petition with thirty-five fully exhausted claims. Respondent Ron Davis filed an

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answer on January 17, 2014 and Price replied on October 14, 2014.

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Due to the size of the petition and the voluminous subclaims, the parties agreed to

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proceed to a merits resolution on twenty-one record-based claims in three rounds of
seven claims. An Order denying the first round of seven record-based claims issued on

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December 1, 2016. In that Order, the court determined that it could proceed to a

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determination on the remaining fourteen record-based claims without further briefing.

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Having reviewed the parties’ papers and the record, and having carefully considered the

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relevant legal authorities, the court DENIES the following ten claims: XIII, XV, XXI, XXIII,
XXVII, XXVIII, XXIX, XXX, XXXI, and XXXII.

BACKGROUND

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I.

Factual Summary

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A.

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The following recitation of the factual background of this case is based on the

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Facts Relating to Convictions

California Supreme Court’s opinion on Price’s direct appeal. People v. Price, 1 Cal.4th
324 (1991). The state court’s factual determinations are presumed to be correct pursuant

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to 28 U.S.C. § 2254(e)(1).
In May 1986, Price was convicted in the Humboldt County Superior Court of the
first-degree murders of Elizabeth Ann Hickey and Richard Barnes, whose murder actually

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United States District Court
Northern District of California

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occurred in Los Angeles County, and one count each of robbery with the use of a firearm,

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burglary, receiving stolen property, and conspiracy. As to the Hickey murder, the jury

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made special circumstance findings of multiple murders and robbery murder. The jury
further found that Price previously had been convicted twice of felonies and completed

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two prior separate prison terms. Price was sentenced to death.
Evidence was presented to show that Price was an active Aryan Brotherhood (AB)

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member and committed the crimes in furtherance of an AB conspiracy. The conspiracy

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was initiated following the testimony of Steven Barnes, another AB member, who testified

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as a prosecution witness against other AB members and against several non-AB

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members. During the summer of 1982, the AB leadership, which included Michael

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Thompson and Clifford Smith, who later testified against Price at his trial, decided to
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retaliate. Prison authorities had placed Steven Barnes in protective custody, so the AB

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leaders decided to kill members of his immediate family instead. They selected Price to

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do the killing.

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At the time, Price was serving a sentence in Montana state prison, but was
scheduled for release from prison soon without parole supervision. One of the AB
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leaders brought Price to the state prison in Chino in August 1982 by subpoenaing him to

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testify at the leader’s trial. After Price arrived, AB leaders offered him the “contract” to kill

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Richard Barnes. Price accepted. The AB leaders instructed him to procure weapons in

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Northern California before returning south to kill Richard Barnes.

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Testimony established that following his release from prison, Price spent time in
Southern California until October 1982, when he returned to Eureka. On January 23,

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United States District Court
Northern District of California

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1983, the gun collection of Richard Moore disappeared from his residence, apparently
having been stolen in a burglary, which included two rifles, three shotguns, and a .22–
caliber handgun. The house had not been ransacked.
In late January 1983, Price returned to Southern California and stayed with several
AB “runners,” people who relayed messages to and from AB members in prison. One
such runner, Janet Myers, drove Price to different addresses he wanted to see. One of
the addresses was the Temple City residence of Richard Barnes.

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On February 12, 1983, at 11 p.m., Price left Myers’s house with another AB
runner. He returned early the next morning, collected his belongings, and left.
On February 13, 1983, the body of Richard Barnes was found in his residence.
He had been shot in the back of the head three times by a .22-caliber handgun.
Credit card receipts showed that Price had purchased gasoline in Pomona on
February 12 and in Anaheim on February 13, 1983. In the room Price had occupied in

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his mother’s house in Eureka, police found a slip of paper on which Richard Barnes’s
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address had been written, together with the name “Nate,” a nickname for Steven Barnes,

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and the words “send subpoena to him.” Police found a similar note in Price’s wallet.

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After the murder, Myers brought Smith a note signed by Price. It stated, “That’s took care

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of. Everything went well. I am going back north. I will be in touch with you later.”

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Six days after Richard Barnes was found, Berlie Petry found the body of his
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girlfriend, Elizabeth Ann Hickey, in the Humboldt County residence they shared. Hickey

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was the stepdaughter of burglary victim Moore. She had been beaten to death with a

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blunt instrument; guns belonging to her and to Petry were missing from their residence.

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Also missing was a combination radio and tape player that Petry had recently given

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Hickey. In Hickey’s trunk, officers found a note in Hickey’s handwriting that said “Call
Curt . . . about money for guns.”

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One of Hickey’s neighbors, testified she had seen a man with Hickey on two
occasions shortly before Hickey was killed. She identified Price in a photographic lineup.
A subsequent search of Price’s automobile yielded a product manual for one of

United States District Court
Northern District of California

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Petry’s rifles, a knife that had belonged to Hickey and had the name “Liz” written on it in

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fingernail polish, and a notebook in which someone had written, “Elizabeth, weapons,

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corner of Simpson and Pine [the location of Hickey’s residence],” as well as Hickey’s
telephone number. Additional notes with Hickey’s contact information were found in

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Price’s wallet and in a suitcase he kept in his mother’s garage. Price’s mother gave

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police a combination radio and tape player that had been in Price’s room. It was identical

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to the one taken from the Hickey residence.

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The evening of February 19, the same day Elizabeth Hickey had been found

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murdered, a gunman robbed employees of the Triplex Theater at 6:30 p.m. He had long,

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thin blond hair and was wearing sunglasses, a watch cap, and gloves. During the movie,

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he came out into the lobby, pointed a revolver at the manager, and directed him into the
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office. At the man’s direction, the manager put $7,000 in a bag and gave it to the man,
who ran out of the theater.

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After the robbery, the theater employees assisted the police in preparing a

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composite sketch of the robber. Five of the employees selected Price’s photograph from

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a photo lineup as being similar to the robber, although none of them made a positive
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identification.
In a suitcase in Price’s mother’s garage, the police found a blond wig, black

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gloves, a watch cap, a handgun, and various items of theatrical makeup (including spirit

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gum, liquid latex, derma wax, and nose putty). In Price’s room in his mother’s house, the

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police found a note that was apparently a list of Price’s expenses and debts. On it Price
had written “need mucho dinero” and “$1,000.00 I owe Mom means it’s all about ‘movie

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time.’” The police also found $400 in cash in a plastic container.
A day or two after Hickey’s murder and the Triplex Theater robbery, Price arrived
at his stepfather’s residence in Reno, Nevada. He had two bundles wrapped in blankets.

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United States District Court
Northern District of California

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Price said they were guns that might have been stolen. Price’s stepfather gave him

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permission to leave the guns at the residence. On February 28, 1983, Price returned to

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Reno and moved the bundles to a mini storage unit.
Price was arrested in Humboldt County for the Triplex Theater robbery on March

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3, 1983. His mother visited him in jail on March 27, 1983. Price asked her to move the

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guns and ammunition from the storage locker in Reno and to dispose of them so they

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would never be found. He referred to the guns as “Brand business.” “The Brand” is

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another name for the AB.

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On March 31, 1983, law enforcement authorities searched the mini storage unit in
Reno, Nevada. They found all of the guns taken from the Moore residence except one

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shotgun (apparently the one found in Price’s mother’s garage) and the handgun. They
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also found all the guns belonging to Hickey and Petry, and over 1,000 rounds of various

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kinds of ammunition. Moore’s handgun, which was one of only four makes that could

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have fired the bullets that killed Richard Barnes, was never found.

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The defense denied that Price had committed any of the offenses. It offered alibi
evidence to show that Price was not in Humboldt County at the time of the Hickey killing
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and the Triplex Theater robbery. It attempted to cast doubt on the identification testimony

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of the robbery victims and the veracity of the prosecution’s AB witnesses, and it sought to

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cast suspicion on Petry for Hickey’s murder.

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Additionally, the defense called three prison inmates, Wendell Norris, John
Stinson, and Robert Rowland, who testified that the AB existed only as an outlook, a way
of life, or a loose social club rather than an organized criminal gang. They also said it

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United States District Court
Northern District of California

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was a label that prison authorities used to justify restrictive confinement.
The defense also adduced evidence to show that Petry had the motive and the
opportunity to kill Hickey.
B.

Facts Relating to Penalty

As evidence in aggravation, the prosecution introduced Price’s prior criminal
history. In 1971, Price violated parole on a California marijuana possession conviction by
going to Montana, where he attempted to rob a small grocery store with a gun. Price was

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placed in a drug program, but he escaped from custody. He was later arrested in Florida
and brought back to Montana to complete his sentence.
In December 1971, while being transported in Montana, Price grabbed a gun from

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one of the two transporting officers. After forcing the officers to drive to a remote

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location, Price locked them both in the trunk of their patrol car and used the gun to force

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his way into the car of a passing motorist, John Digalis. Price told Digalis to drive to

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Idaho. Law enforcement officers stopped the car. Price pointed the gun at Digalis’s head
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and threatened to kill him if the officers approached. At Price’s order, Digalis again

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began to drive, but the officers shot out a tire. Price eventually surrendered. He was

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convicted of inmate holding a hostage, a Montana felony.

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Price was in San Quentin Prison in May 1978. He told another prisoner, Ricky
Carpenter, that he was going to kill Leroy Banks, an African–American inmate, because
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Banks had been disrespectful to an AB member. Carpenter pointed out Banks. Price
stabbed Banks 10 to 15 times in the chest. Banks died of his wounds.
While in jail awaiting trial in this case, Price struck jail guards on two occasions,

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and on another occasion he violently resisted being taken to court, hitting and biting the
guards who were escorting him.

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As part of the defense’s mitigation presentation, Price testified on his own behalf.

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Price said he had not testified at the guilt phase because the trial court had ordered him
shackled in the courtroom. Because he had not yet been convicted, he had refused to
appear before the jury in chains. He denied he was guilty of any of the charged offenses.

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United States District Court
Northern District of California

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He admitted that he knew Hickey. He said Hickey had asked him to sell her guns for her

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on consignment. The final arrangements were made during a telephone call from Hickey

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to the home of an AB runner in Auburn. He said he received the guns on February 18,
1983, in Lakeport from a man named Kenny. He claimed to have supported himself

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between October 1982 and March 1983 by selling marijuana.
The defense presented evidence about the conditions of Price’s confinement in jail

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pending the trial in this case, which a nutritionist, a counselor, and a psychiatrist all

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testified were unhealthy, humiliating and stressful, and led to anxiety, depression, and

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hostility.

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Price’s family members testified that they loved Price and did not want him to die.

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Four corrections officers testified that Price had been a respectful and cooperative inmate
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while in custody.
II.

Procedural History
Price litigated an automatic appeal of these convictions in the California Supreme

Court, which affirmed the convictions on December 30, 1991. The court denied Price’s
petition for rehearing on February 19, 1992. Price filed a habeas petition in state court on
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November 13, 1990 and a supplemental petition and request for consolidation with his

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appeal on December 12, 1991. AG043034. The California Supreme Court denied the

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initial petition on January 29, 1992. AG043033. The supplemental petition was denied

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on February 12, 1992. AG043064.

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Price filed a request for appointment of counsel and stay of execution in this court
on January 25, 1993. ECF Doc. No. 1. Counsel were appointed on June 23, 1994. ECF

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Doc. No. 23. Through counsel, Price filed his first petition for writ of habeas corpus on
April 21, 1997. ECF Doc. No. 86. Respondent subsequently filed a motion to dismiss
based on failure to exhaust all of the petition’s claims in state court. ECF Doc. No. 101.

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United States District Court
Northern District of California

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Price opposed the motion and requested a stay of proceedings to return to state court

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and exhaust any unexhausted claims. ECF Doc. No. 120. The court held a hearing on

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the matter and ultimately denied respondent’s motion to dismiss and granted Price’s
motion to stay proceedings. ECF Doc. Nos. 136, 141.

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While his state exhaustion petition was still pending, Price moved to temporarily lift

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the stay in the instant proceedings to file a first amended petition. ECF Doc. No. 176.

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The motion was granted. ECF Doc. No. 180.

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Additionally, while the initial exhaustion petition was pending in state court, which
was his third state habeas petition, Price filed a fourth state habeas petition alleging juror
misconduct based on evidence discovered during the investigation to prepare the

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exhaustion petition. AG047018-69.
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The California Supreme Court issued an order to show cause on Price’s

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exhaustion petition regarding one claim: whether the prosecutor improperly tampered

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with a sitting juror by sending her alcoholic drinks and money, and telling her to return a

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guilty verdict. AG045273.

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The California Supreme Court denied Price’s fourth state habeas petition on June
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24, 2009, prior to denying the exhaustion petition. AG047315. More than a year and a

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half later, on February 14, 2011, it denied the claim in the initial exhaustion petition on

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which it filed an order to show cause and discharged the order to show cause.

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AG046994-16. The remainder of the claims in the exhaustion petition were denied on

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April 13, 2011. AG047017.

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Price moved to lift the stay and to file an amended petition on January 18, 2012.

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ECF Doc. No. 194. The request was granted on February 2. ECF Doc. No. 196.
Price filed his second amended petition on November 30, 2012. ECF Doc. No.

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201. In it, he raised thirty-five claims for relief. Respondent filed his answer on January

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United States District Court
Northern District of California

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17, 2014. ECF Doc. No. 210. Price filed his reply on October 14, 2014. ECF Doc. No.

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220.

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Following a meet-and-confer period, the parties identified twenty-one record-based
claims that could proceed to briefing without a request for an evidentiary hearing. ECF

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Doc. No. 225. The court directed the parties to brief those claims in three rounds of

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seven claims. ECF Doc. No. 226. On December 1, 2016, the court issued an Order

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denying the first seven claims and advising the parties that no further briefing on the

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remaining fourteen claims would be necessary. ECF Doc. No. 250.

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ISSUES

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Price asserts the following ten claims for relief:

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(1)

that his rights to receive a fair trial by an impartial jury and effective representation

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under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated by the

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trial court’s denial of his two motions to change venue due to pervasive bias and

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hostility toward him in Humboldt County;

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(2)

that the trial court’s refusal to sever the Hickey murder and burglary charges from
the Barnes murder and conspiracy charges resulted in a fundamentally unfair trial
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in violation of his rights to due process, a fair trial, the effective assistance of

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counsel, and the right to be free from cruel and unusual punishment as

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guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments;

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(3)

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that his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were
violated because he was tried and convicted on a conspiracy count, the basis of

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information for which did not conform to the evidence and for which there was

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insufficient evidence to support a conviction;

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(4)

that his rights to due process, a fair trial, the effective assistance of counsel, and
the right to be free from cruel and unusual punishment as guaranteed by the

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United States District Court
Northern District of California

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Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments were violated by the trial

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court’s erroneous admission of numerous pieces of prosecutorial evidence at the

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penalty phase;
(5)

that the trial court’s erroneous evidentiary rulings during the penalty phase

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resulted in a fundamentally unfair trial in violation of his rights to due process, a

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fair trial, the effective assistance of counsel, and the right to be free from cruel and

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unusual punishment as guaranteed by the Fourth, Fifth, Sixth, Eighth, and

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Fourteenth Amendments;

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(6)

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that the California statutory scheme under which Price was convicted and
sentenced to death, as set forth in California Penal Code section 190, et. seq.,

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violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
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Constitution and article 1 sections 1, 7, 15, 16, and 17 of the California

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Constitution;

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(7)

that the trial court’s refusal to allow the defense to present, and the jury to
consider, relevant mitigating evidence at the penalty phase resulted in a
fundamentally unfair trial in violation of Price’s rights to due process, a fair trial, the
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effective assistance of counsel, and the right to be free from cruel and unusual

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punishment as guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth

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Amendments;

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(8)

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that the trial court’s erroneous jury instructions regarding the Banks killing in the
penalty phase resulted in a fundamentally unfair trial in violation of Price’s right to

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due process, a fair trial, the effective assistance of counsel, and his right to be free

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from cruel and unusual punishment as guaranteed by the Fourth, Fifth, Sixth,

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Eighth, and Fourteenth Amendments;

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(9)

that the trial court’s reaction to the jury’s report of deadlock at the penalty phase

United States District Court
Northern District of California

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coerced the death verdict in violation of his rights to due process, a fair trial, the

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effective assistance of counsel, and the right to be free from cruel and unusual

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punishment as guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth

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Amendments; and

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(10)

that his rights to due process, a fair trial, the effective assistance of counsel, and

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the right to be free from cruel and unusual punishment as guaranteed by the

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Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments were violated by a

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variety of errors and flaws in the California capital sentencing procedures.

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STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence

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on the basis of a claim that was reviewed on the merits in state court unless the state

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court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as determined

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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
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State court proceeding.” 28 U.S.C. § 2254(d). The first prong applies both to questions

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of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407–09

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(2000), while the second prong applies to decisions based on factual determinations,

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Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls under
the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to

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that reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 412-13. A state court decision is an “unreasonable

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United States District Court
Northern District of California

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application of” Supreme Court authority, falling under the second clause of § 2254(d)(1),

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if it correctly identifies the governing legal principle from the Supreme Court’s decisions

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but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.
The federal court on habeas review may not issue the writ “simply because that court

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concludes in its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the

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application must be “objectively unreasonable” to support granting the writ. Id. at 409.

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A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as “fairminded jurists could disagree” on the correctness of the state court’s
decision. Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado,

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541 U.S. 652, 664 (2004)). “[E]valuating whether a rule application [i]s unreasonable
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requires considering the rule’s specificity. The more general the rule, the more leeway

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courts have in reaching outcomes in case-by-case determinations.” Id. “As a condition

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for obtaining habeas corpus [relief] from a federal court, a state prisoner must show that

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the state court’s ruling on the claim being presented in federal court was so lacking in

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justification that there was an error well understood and comprehended in existing law
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beyond any possibility for fairminded disagreement.” Id. at 102.
Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

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determination will not be overturned on factual grounds unless objectively unreasonable

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in light of the evidence presented in the state-court proceeding.” Miller-El I, 537 U.S. at

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340. Review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398

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(2011).
DISCUSSION

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United States District Court
Northern District of California

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I.

Claim XIII - Erroneous Denial of Motion for Change of Venue
Price argues that the trial court’s denial of his two motions for change of venue

based on juror bias due to pretrial publicity regarding the case and the nature of the small
community in which the case was tried denied him a fair trial. Price filed the first motion
prior to voir dire. The trial court denied it without prejudice to renewal should voir dire

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show an insufficient venire of unbiased jurors. Price filed the second motion following the
impaneling of the jury, which the trial court also denied.

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A.

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A criminal defendant facing trial by jury is entitled to be tried by “a panel of

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impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). Bias or prejudice

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Legal Standard

on the part of even one juror would violate Price’s right to a fair trial. See, e.g., United

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States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977).
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Accordingly, a trial judge must grant a motion for a change of venue if prejudicial

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pretrial publicity makes it impossible to seat an impartial jury. See Gallego v. McDaniel,

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124 F.3d 1065, 1070 (9th Cir. 1997). A defendant must demonstrate one of two different

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types of prejudice in support of a motion to transfer venue: presumed or actual. See id.

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Prejudice is presumed when the record demonstrates that the community where
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the trial was held was “saturated” with prejudicial and inflammatory media publicity about

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the crime. See id. However, “[p]rominence does not necessarily produce prejudice, and

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juror impartiality. . . does not require ignorance.” Skilling v. United States, 561 U.S. 358,

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381 (2010) (citing Irvin, 366 U.S. at 722).

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“A presumption of prejudice attends only the extreme cases.” Id. The publicity
must be so pervasive and inflammatory that the jurors cannot be believed when they

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United States District Court
Northern District of California

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assert that they can be impartial. See United States v. Croft, 124 F.3d 1109, 1115 (9th
Cir. 1997). Prejudice is rarely presumed because "saturation" defines conditions found
only in extreme situations. See Gallego, 124 F.3d at 1070.
To establish actual prejudice, the defendant must demonstrate that the jurors
exhibited actual partiality or hostility that could not be laid aside. See Gallego, 124 F.3d
at 1070. The focus must be on the jurors who were actually seated on the petit jury and it
is not enough that some of them had some prior knowledge of the case. See id. at 1071-

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72 (only publicity that operates to deprive defendant of a fair trial may cause prejudice).

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See, e.g., Hayes, 632 F.3d at 511-12 (no actual prejudice shown where there was “no

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evidence here that any member of the empaneled jury was influenced by press coverage,

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let alone convinced by it that Hayes was guilty”). A defendant’s decision to neither

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challenge any juror for cause nor exercise all peremptory challenges indicates

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satisfaction with the jury and suggests a lack of actual prejudice due to pretrial publicity.

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See Fetterly, 163 F.3d at 1148.
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When evaluating actual prejudice in a situation where “pretrial publicity is at issue,

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‘primary reliance on the judgment of the trial court makes [especially] good sense’

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because the judge ‘sits in the locale where the publicity is said to have had its effect’” and

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is better able to assess the extent to which publicity may have influenced a juror. Skilling,

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561 U.S. 358, 386 (alteration in original); see Hayes, 632 F.3d at 510, 511-12.
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A state trial court's finding of juror impartiality is presumed to be correct. See

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Ybarra v. McDaniel, 656 F.3d 984, 992-94 (9th Cir. 2011) (applying presumption of

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correctness to state court factual findings of no juror partiality where petitioner presented

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no clear and convincing evidence to the contrary); Ainsworth, 138 F.3d at 796.

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B.

State Court Denial

Under California law, a motion to change venue should be granted if a defendant

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shows that a fair trial cannot be held in the county of original venue. Price, 1 Cal.4th at
390, citing People v. Coleman, 48 Cal.3d 112, 133 (1989). The trial court should
consider the following factors: “the gravity and nature of the crime, the size and nature of

11
United States District Court
Northern District of California

10

the community, the extent and nature of the publicity concerning the crime, the status of

12

the victim, the status of the accused, and ‘any indication from the voir dire of prospective

13
14

and actual jurors that the publicity did in fact have prejudicial effect.’” Id.
The California Supreme Court found that the first two factors weighed in favor of

15
16

granting the change of venue motion, but that upon consideration of the other factors and

17

a review of the voir dire, Price had failed to show a reasonable likelihood that a fair trial

18

was not obtainable in Humboldt County. Id.

19

Specifically, the California Supreme Court found that when viewed as a whole,

20

“the media coverage was restrained and balanced, prominently featuring the defense

21

evidence and arguments, and it abated almost entirely after the preliminary hearings.” Id.

22
at 392. In its denial, the court noted that publicity began in April 1983 with a story stating
23
24

that Price had been charged with the Hickey murder. That particular story identified

25

Hickey as a twenty-two-year-old mother and mentioned that her two children were asleep

26

in a nearby bedroom when she was murdered by several blows to the head. There was

27

no further media coverage until October 1983, when the first preliminary hearing took

28

place. Media coverage picked back up during the first preliminary hearing and continued
15

1

through the second preliminary hearing in April and May 1984. Topics covered included

2

testimony that the AB was both a gang and a social organization or way of life; that AB

3

leadership gave the murder contracts to Price because of his disposition and criminal

4

history; defense theories about Berlie Petry and evidence regarding Hickey’s promiscuity;

5
6

and the fact that two council members had voted against funding for the prosecution of
this case because it was slated to be the most expensive in the county’s history. Id. at

7
8
9
10

391-92. During an almost two-year period, ten television segments aired regarding the
trial and the length of those segments averaged less than one minute. Id. at 392.
In evaluating the remaining factors, the California Supreme Court determined that

United States District Court
Northern District of California

11

the relative esteem with which the community regarded Price, Hickey, and Barnes was

12

not so disproportionate that it necessitated a change of venue. While initial media reports

13
14

described Price as an Oregon resident, subsequent stories noted that he had lived with
his mother in Eureka. Richard Barnes was an unknown in the community. And Elizabeth

15
16

Hickey’s status as a young mother “undoubtedly [made her] a sympathetic figure;”

17

however, the record did not contain any evidence that her death stirred any particular

18

emotion within the community. Id.

19
20
21

Finally, according to a defense analysis of potential jurors’ responses to a
questionnaire, seventy-six percent of those who answered had not heard of Price,
seventy-eight percent had not heard of Hickey, ninety-four percent had not heard of

22
Barnes, and seventy-eight percent indicated they had learned nothing of the case
23
24
25

through the media. Id. at 393.
The California Supreme Court also noted that Price agreed upon a jury while still

26

retaining eight peremptory challenges to jurors and two peremptory challenges to

27

potential jurors. Under California law, “the failure to exhaust peremptories is a strong

28

indication ‘that the jurors were fair, and that the defense itself so concluded.’” Id. at 393,
16

1

citing People v. Balderas, 41 Cal.3d 144, 180 (1985).

2

In reviewing Price’s specific bias claims regarding Jurors Southworth and Kramer,

3

the court determined that Price had not asserted these grounds in his motions for change

4

of venue and that those allegations did not alter the conclusion that the trial court had not

5
6

erred in denying either motion for change of venue. Id. at 394.
C.

State Court Denial Was Not Unreasonable

7
8
9

Price has failed to show either actual or presumed prejudice by the trial court’s
denial of his two venue motions. As an initial matter, when the jury was impaneled, Price
had eight peremptory challenges left that he could have used against any regular juror

11
United States District Court
Northern District of California

10

and two peremptory challenges he could have used against any alternate. This suggests

12

a lack of actual prejudice. See Fetterly, 163 F.3d at 1148. Moreover, the issue of

13
14

whether the jury held any bias against a petitioner is a factual one and the trial court’s
“finding that the jury was not biased is entitled to the usual presumption of correctness.”

15
16
17
18

Leavitt v. Arave, 383 F.3d 809, 826 (9th Cir. 2004), citing Jeffries v. Blodgett, 5 F.3d
1180, 1189 (9th Cir. 1993).
In evaluating Price’s second motion for a change of venue, the trial court

19

specifically outlined nineteen jurors who had been dismissed for cause and cited the

20

reasons said jurors could not be impartial. RT 9805, AG026658. The trial court held that

21

a change of venue was not warranted because only nine to ten percent of the jury venire

22
was excused for cause and eighty-nine to ninety percent of the venire either had no
23
24

knowledge of the case whatsoever or had some knowledge but indicated they could be

25

fair. RT 9804, AG026657. The court also noted that the regular and alternate jurors had

26

been approved by both sides. RT 9801, AG026654. Price has failed to show any actual

27

bias. His specific arguments regarding bias by Jurors Southworth and Kramer will be

28

addressed when those claims are ripe for adjudication; however, the fact remains that he
17

1

failed to use his remaining peremptory challenges to remove jurors whom he knew or

2

believed had contact with someone else related to the case due to the small nature of the

3

community.

4
5
6

Price also argues the court should presume bias. He has not provided the court
with any clearly established federal law that would entitle him to a presumption of bias.
The United States Supreme Court has found presumed bias based on pretrial publicity in

7
8
9

only three cases: Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S.
532 (1965); and Rideau v. Louisiana, 373 U.S. 723 (1963). See Bolin v. Chappell, 2016
WL 3213551 *13 (E.D. Cal., June 9, 2016). The pretrial publicity in Price’s trial falls far

11
United States District Court
Northern District of California

10

short of what the Supreme Court found prejudicial in those three cases. In Rideau, which

12

also involved a small town, the media aired petitioner’s videotaped confession to the

13
14

crimes for which he was charged three times and tens of thousands of people saw it each
time. 373 U.S. at 724-27. See also Skilling, 561 U.S. at 379. In Estes and Sheppard,

15
16

the media presence within the courtroom became disruptive to the actual proceedings.

17

See, Estes, 381 U.S. at 536; Sheppard, 384 U.S. at 358. By contrast, here there were a

18

limited number of media reports about the case on varied topics, including defense

19

theories, that were viewed by a small fraction of the jury venire. At no time in Price’s

20

preliminary hearings did the media interrupt or intrude on the proceedings.

21

This case is more analogous to Leavitt, cited above. There, the petitioner

22
committed a brutal stabbing. The Ninth Circuit denied relief for his claim that pretrial
23
24

publicity warranted a change of venue, noting that even though Blackfoot, ID, the

25

community in which the crime occurred, was a small one and the crime was “vile,” the

26

media accounts were “essentially factual in nature, and the testimony showed that the

27

community was not inflamed against [the petitioner].” Id. Like in Leavitt, the media

28

coverage of Price’s trial “was not such a barrage of inflammatory publicity as would lead
18

1

to a presumption of prejudice.” Id.

2

Price has not provided, nor has the court found, any clearly established federal law

3

that would entitle him to relief based on the size of Humboldt County and the likelihood of

4

jurors knowing witnesses. While the California Supreme Court considered the size and

5
6

nature of the county as weighing in favor of a venue transfer, those comprised only one
factor of a number to consider in making the ultimate determination. Price has not shown

7
8
9

that the California Supreme Court’s denial of this claim was an unreasonable application
of clearly established federal law or an unreasonable interpretation of the facts.
Accordingly, this claim is DENIED.

11
United States District Court
Northern District of California

10

II.

12
13
14

Claim XV - Erroneous Denial of Motion to Sever Hickey and Barnes Charges
In claim XV, Price argues that the trial court violated his constitutional rights by

denying his motion to sever the Hickey murder and burglary charges from the Barnes
murder charges. Price asserts that the trial court’s denial of the severance motion on the

15
16

ground that the conspiracy extended beyond Richard Barnes’s murder was factually

17

inaccurate because no evidence supported such a conclusion and because the

18

prosecution’s theory of the case was inconsistent with that premise.

19

A. Legal Standard

20

A joinder, or denial of severance, of counts or codefendants, may prejudice a

21

defendant sufficiently to render his trial fundamentally unfair in violation of due process.

22
Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997).
23
24

A federal court reviewing a state conviction under 28 U.S.C. § 2254 does not

25

concern itself with state law governing severance or joinder in state trials. Grisby, 130

26

F.3d at 370. Its inquiry is limited to the petitioner’s right to a fair trial under the United

27

States Constitution. Grisby, 130 F.3d at 370. To prevail, therefore, the petitioner must

28

demonstrate that the state court’s joinder or denial of his severance motion resulted in
19

1

prejudice great enough to render his trial fundamentally unfair. Id. In addition, the

2

impermissible joinder must have had a substantial and injurious effect or influence in

3

determining the jury’s verdict. Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000).

4
5
6

There is a “high risk of undue prejudice whenever . . . joinder of counts allows
evidence of other crimes to be introduced in a trial of charges with respect to which the
evidence would otherwise be inadmissible.” United States v. Lewis, 787 F.2d 1318, 1322

7
8
9

(9th Cir. 1986). This risk is especially great when the prosecutor encourages the jury to
consider the two sets of charges in concert, e.g., as reflecting a modus operandi even
though the evidence is not cross-admissible, and when the evidence of one crime is

11
United States District Court
Northern District of California

10

substantially weaker than the evidence of the other crime. Bean v. Calderon, 163 F.3d

12

1073, 1084-85 (9th Cir. 1998). But joinder generally does not result in prejudice if the

13
14

evidence of each crime is simple and distinct (even if the evidence is not crossadmissible), and the jury is properly instructed so that it may compartmentalize the

15
16

evidence. Id. at 1085-86. Similarly, joinder generally does not result in prejudice if the

17

jury did not convict on all counts because it presumably was able to compartmentalize

18

the evidence. Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000).

19

B. State Court Denial

20

The California Supreme Court denied this claim, finding that evidence of the

21

Barnes murder would have been cross-admissible in a trial on the Hickey murder and

22
robbery “to confirm the existence of the conspiracy and [Price’s] participation in it.” Price,
23
24

1 Cal.4th at 389. Additionally, evidence of the Barnes murder could have been

25

admissible in a separate trial regarding the Hickey offenses to show motive for the Hickey

26

murder. Id. The court noted that the evidence showed that while the AB gave Price the

27

directive to obtain guns and money to execute the contract on Richard Barnes, they

28

subsequently had given Price additional murder contracts following his release from
20

1
2

prison that extended the conspiracy. Id.
The California Supreme Court further held that even if Price had shown that the

3

evidence on the two murder charges would not have been cross-admissible under

4

California law, he had failed to show that he had been prejudiced by the trial court’s

5
6

denial of his severance motion. Id. at 389-90. Specifically, the court determined that
neither murder was more inflammatory than the other and that no one murder was

7
8
9
10

supported by substantially stronger evidence. Id. at 389.
C. State Court Denial Was Not Unreasonable
The state court determined as a matter of state law that the evidence of the two

United States District Court
Northern District of California

11

murders would have been cross-admissible if the trial court had granted the motion to

12

sever. That determination binds this court. See Bradshaw v. Richey, 546 U.S. 74, 76

13
14

(2005) (a state court’s interpretation of state law binds a federal court on habeas review).
The record supports the California Supreme Court’s conclusion that evidence

15
16

supported the continuation of the conspiracy beyond the Barnes murder. At the

17

preliminary hearing, Michael Thompson testified that following Price’s discharge from

18

prison, the AB leadership council voted to give him two additional murder contracts that

19

were delivered to him by courier. CT 2672, AG002796. Additionally, Thompson testified

20

that the council directed Price to procure weapons in Northern California to complete the

21

Barnes contract, “amongst others,” and noted that the AB was always planning for future

22
contracts. CT 2656-57, AG002780-81.
23
24

As noted by Davis, cross-admissibility “dispels the prejudicial impact of joining all

25

counts in the same trial.” Sandoval, 241 F.3d at 772. Moreover, the jury’s acquittal of

26

Price on the charges stemming from the Triplex Theater robbery shows its ability to

27

compartmentalize evidence. See Park, 202 F.3d at 1149-50. Because Price has been

28

unable to show that the California Supreme Court denial of this claim was an
21

1

unreasonable interpretation of the facts or an unreasonable application of clearly

2

established federal law, it is DENIED.

3

III.

4
5
6

Claim XXI - Insufficient Evidence to Support Conspiracy Conviction
In this claim, Price argues that his conviction on the conspiracy count violates his

right to be tried and convicted of an information that conformed to the evidence. Price
states that the charging information stated that the conspiracy occurred between April

7
8
9

and September 1982 in Humboldt County, yet the prosecution never adduced any
conspiracy evidence during those dates in Humboldt County. Further, he says that the
evidence showed that “any alleged conspiritorial [sic] acts during the period between April

11
United States District Court
Northern District of California

10

and September of 1982 occurred in San Bernardino County” and that every alleged overt

12

act enumerated in the information occurred after the conclusion of the stated conspiracy

13
14

duration. Pet. at 526. Alternatively, Price states that his conspiracy conviction is
unconstitutional because it is not supported by sufficient evidence.

15
16
17
18

A. Charging Information Subclaim
1.

Legal Standard

It is clearly established federal law that a criminal defendant has a Sixth

19

Amendment right to be informed of any charges against him, and that a charging

20

document, such as an information, is the means by which such notice is provided. Gautt

21

v. Lewis, 489 F.3d 993, 1004 (9th Cir. 2007) (citing Cole v. Arkansas, 333 U.S. 196, 201

22
(1948)). The Supreme Court “has never held that non-charging document sources can
23
24

be used to satisfy the Constitution’s notice requirement” where the defendant claims that

25

he never received sufficient notice of the underlying charge. Id. at 1009 (defendant

26

charged with a sentence enhancement under one subsection of a statute could not be

27

sentenced under another subsection that had more requirements and carried a stiffer

28

penalty). However, the habeas court can look to sources other than the information for
22

1
2

evidence that the defendant did receive adequate notice of the theory of a case (e.g.,
felony murder). See id. at 1009.

3

A habeas petitioner may claim a divergence between what he was alleged to have

4

done in the information and what the jury convicted him of doing. The success of such a

5
6

claim will turn on whether the discrepancy constituted a variance or an amendment, often
called a “constructive amendment.” A variance occurs when the proof introduced at trial

7
8
9

differs materially from the facts alleged in the information. In contrast, an amendment
involves a change, whether literal or in effect, in the terms of the information, i.e., a
change in the crime(s) charged. Jones v. Smith, 231 F.3d 1227, 1232-33 (9th Cir. 2001).

11
United States District Court
Northern District of California

10

If the discrepancy is a mere variance, then it is subject to the harmless error rule. By

12

contrast, if the discrepancy constitutes an amendment, then it may be prejudicial per se.

13
14

Id. As the Supreme Court indicated in Stirone v. United States, 361 U.S. 212, 218
(1960), where a defendant is convicted of a crime and where the grand jury never

15
16
17

charges the defendant with an essential element of the crime, a constructive amendment
has occurred and reversal is warranted. Id.

18

A variance requires reversal only when the defendant was prejudiced thereby.

19

Jones, 231 F.3d at 1238. “The key question . . . is whether an error or omission in an

20

indictment [or information] worked to the prejudice of the accused.” United States v.

21

Normandeau, 800 F.2d 953, 958 (9th Cir. 1986). Defects of form, as opposed to

22
substance, will generally not constitute prejudice to the accused. See, e.g., Echavarria23
24

Olarte v. Reno, 35 F.3d 395, 398-99 (9th Cir. 1994) (indictment citing only conspiracy

25

statutes sufficient to inform drug defendant not only of elements of crime, but also of

26

underlying substantive offenses; error, if any, was defect of form rather than of

27

substance).

28

In addition, a defendant may be adequately notified of the nature and cause of the
23

1

accusation by means other than the indictment/information in advance of trial, see, e.g.,

2

Jones, 231 F.3d. at 1238-39 (even though the information did not allege premeditation, it

3

was clear from record that petitioner was on notice well before trial that the prosecution

4

sought to prove that he attempted to commit murder deliberately and with premeditation),

5
6

or even by the prosecutor’s statements during trial, see, e.g., Stephens v. Borg, 59 F.3d
932, 934-36 (9th Cir. 1995) (even though information charged defendant with murder and

7
8
9

did not state theory of case was felony murder, defendant had constitutionally adequate
notice of felony murder charge from prosecution’s production of proposed felony murder
instructions during defendant’s case-in-chief and presentation of evidence of underlying

11
United States District Court
Northern District of California

10

felony that laid foundation for felony murder instruction); Calderon v. Prunty, 59 F.3d

12

1005, 1009-10 (9th Cir. 1995) (even if information was not sufficient, defendant had

13
14

adequate notice of nature of accusation against him from statements made by prosecutor
during opening statement and during motion for acquittal at close of prosecution’s case).

15
16
17

2.

State Court Denial of Information Subclaim

The California Supreme Court denied this subclaim, finding that Price had

18

received ample notice of the allegations against him through the preliminary hearing

19

evidence. Price, 1 Cal.4th at 398. Additionally, the court noted that any discrepancy in

20

the conspiracy dates was corrected on the verdict form. Id.

21

3.

State Court Denial Was Not Unreasonable

22
Price has failed to show that the California Supreme Court denial of this claim was
23
24

an unreasonable application of clearly established federal law or an unreasonable

25

interpretation of the facts. The issues with the information of which Price complains

26

constitute a variance. Price had been charged with all of the essential elements of

27

conspiracy. See Stirone, 361 U.S. at 218 (granting relief where variance,

28

in the sense of a variation between pleading and proof, . . . destroyed the defendant’s
24

1
2

substantial right to be tried only on charges presented in an indictment returned by a
grand jury).
Time is not an element of the crime of conspiracy under California law. People v.

3
4
5
6

Griffin, 98 Cal.App.2d 1, 44 (App. 3 Dist. 1950), disapproved of on other grounds by
People v. Weiss, 50 Cal.2d 535, 566 (1958). “The law fixes no time in which [a
conspiracy] must have been entered into and it does not provide that it have any

7
8
9

particular duration. It is sufficient if in any manner the conspirators tacitly come to a
mutual understanding to commit a crime.” Id. (citation omitted). Nor is location an
element of conspiracy. Rather, the issue of where the conspiracy was formed and where

11
United States District Court
Northern District of California

10

overt acts were carried out goes to the issue of venue. See People v. Jones, 288

12

Cal.App.2d 74, 86-87 (1st Dist. 1964) (venue is proper in county where agreement

13
14

reached or an overt act in furtherance of the conspiracy occurred). Because the
prosecution incorrectly identified the dates of the conspiracy and location of the

15
16
17

commencement of the conspiracy, but neither of those constitute an element of the
crime, the mistake is a variance, which is subject to harmless error review.

18

As noted by the California Supreme Court, Price received notice of the exact dates

19

and locations of the alleged conspiracy at the preliminary hearing. As in Calderon, supra,

20

the prosecution laid out its theory behind the conspiracy charge in its opening statement.

21

Price had ample notice of the conspiracy allegations and the evidence the prosecution

22
intended to adduce to support them. Accordingly, he has not met his burden for this
23
24

subclaim and it is DENIED.

25

B. Sufficiency of the Evidence Subclaim

26

Price argues that the prosecution failed to present sufficient evidence to support a

27
28

conspiracy conviction as pled in the information.
//
25

1.

1

Legal Standard

The Due Process Clause “protects the accused against conviction except upon

2
3

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

4

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who

5
6

alleges that the evidence in support of his state conviction cannot be fairly characterized
as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt

7
8
9

therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979),
which, if proven, entitles him to federal habeas relief, see id. at 324.
The Supreme Court has emphasized that “Jackson claims face a high bar in

10

United States District Court
Northern District of California

11

federal habeas proceedings . . . .” Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012)

12

(per curiam) (finding that the 3rd Circuit “unduly impinged on the jury’s role as factfinder”

13
14

and failed to apply the deferential standard of Jackson when it engaged in “fine-grained
factual parsing” to find that the evidence was insufficient to support petitioner’s

15
16

conviction). A federal court reviewing collaterally a state court conviction does not

17

determine whether it is satisfied that the evidence established guilt beyond a reasonable

18

doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843

19

(1993); see, e.g., Coleman, 132 S. Ct. at 2065 (“the only question under Jackson is

20

whether [the jury’s finding of guilt] was so insupportable as to fall below the threshold of

21

bare rationality”). The federal court “determines only whether, ‘after viewing the evidence

22
in the light most favorable to the prosecution, any rational trier of fact could have found
23
24

the essential elements of the crime beyond a reasonable doubt.’” Payne, 982 F.2d at

25

338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found

26

proof of guilt beyond a reasonable doubt, has there been a due process violation.

27

Jackson, 443 U.S. at 324.

28

//
26

2.

1

State Court Denial of Information Subclaim

In denying this subclaim, the California Supreme Court noted that the correct

2
3

conspiracy dates appeared on the verdict form and that “substantial evidence” supported

4

the guilty verdict “entered on this form.” Price, 1 Cal.4th at 398. As support, the court

5
6

specifically noted the testimony of AB member Michael Thompson, who described the
rationale for the determination to kill Richard Barnes and for awarding the assignment to

7
8
9

Price. Thompson also discussed the directions to Price that he needed to procure
weapons to carry out the task. The court noted that the “prosecution introduced other
evidence to show that [Price] committed various acts in Humboldt County in January and

11
United States District Court
Northern District of California

10

February of 1983 to achieve the objectives of the conspiracy.” Id.

12

3.

13
14

State Court Denial Was Not Unreasonable

In viewing the evidence in the light most favorable to the prosecution, sufficient
evidence supported Price’s conspiracy conviction because at least one rational trier of

15
16

fact could have found him guilty. See Jackson, 443 U.S. at 319. Price only disputes the

17

evidence as to the charging information, not as to how the charge appeared on the

18

verdict form. Because there was sufficient evidence to support his conviction as the

19

information appeared on the verdict form, the California Supreme Court denial of this

20

subclaim was not unreasonable and it is, accordingly, DENIED.

21
22

IV.

Claim XXIII - The Prosecution Introduced Improper Evidence Through the
Cross- Examination of Defense Witnesses and Through
Rebuttal Witnesses

23
24

In this claim, Price challenges as violative of his constitutional rights the court’s

25

admission of three items of prosecutorial evidence in the penalty phase: (1) rumors that

26

Sheila Yates, Price’s sister, had allegedly heard from family about Price and how many

27

people he had killed, (2) impermissibly broad rebuttal evidence following Price’s

28

statement that he was not “personally capable” of killing Elizabeth Hickey, and (3)
27

1

impermissible questions about Price’s possession of a stolen gun.

2

A.

3

The admission of evidence is not subject to federal habeas review unless a

4
5
6

Legal Standard

specific constitutional guarantee is violated or the error is of such magnitude that the
result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v.
Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). The Supreme Court “has not yet made a

7
8
9

clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due
process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568
F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court’s admission of irrelevant

11
United States District Court
Northern District of California

10

pornographic materials was “fundamentally unfair” under Ninth Circuit precedent but not

12

contrary to, or an unreasonable application of, clearly established Supreme Court

13
14

precedent under § 2254(d)); see, e.g., Zapien v. Martel, 805 F.3d 862, 869 (9th Cir.
2015) (because there is no Supreme Court case establishing the fundamental unfairness

15
16
17

of admitting multiple hearsay testimony, Holley bars any such claim on federal habeas
review).

18

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

19

sufficient basis for granting federal habeas relief on due process grounds. See Henry,

20

197 F.3d at 1031; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). While

21

adherence to state evidentiary rules suggests that the trial was conducted in a

22
procedurally fair manner, it is certainly possible to have a fair trial even when state
23
24

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

25

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

26

Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983), cert. denied, 469 U.S. 838 (1984)).

27

The due process inquiry in federal habeas review is whether the admission of evidence

28

was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v.
28

1

Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. But note that only if

2

there are no permissible inferences that the jury may draw from the evidence can its

3

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

4
5
6

The United States Supreme Court has left open the question of whether admission
of propensity evidence violates due process. Estelle v. McGuire, 502 U.S. 62, 75 n. 5
(1991). Based on the Supreme Court’s reservation of this issue as an “open question,”

7
8
9

the Ninth Circuit has held that a petitioner’s due process right concerning the admission
of propensity evidence is not clearly established as required by AEDPA. Alberni v.
McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006); accord Mejia v. Garcia, 534 F.3d 1036,

11
United States District Court
Northern District of California

10

1046 (9th Cir. 2008), reaffirming Alberni. See, e.g., Larson v. Palmateer, 515 F.3d 1057,

12

1066 (9th Cir. 2008) (because Supreme Court expressly reserved the question of

13
14

whether using evidence of prior crimes to show propensity for criminal activity could ever
violate due process, state court’s rejection of claim did not unreasonably apply clearly

15
16

established federal law).

17

B. Yates Testimony

18

When interviewed by Sgt. Frederickson in March 1983 following Price’s arrest,

19

Yates said that “she believed [Price] was ‘up to no good,’ that she did not trust him, and

20

that she had heard he had bragged to her sister-in-law about killing six people.” Price, 1

21

Cal.4th at 473. During the penalty phase of Price’s trial, Yates asked the jury to spare

22
Price’s life because, in part, she believed he was not guilty and that he could be a
23
24

positive role model to newer prisoners. The prosecution sought to impeach Yates with

25

her statement to Sgt. Frederickson and the trial court held a hearing outside the presence

26

of the jury. The trial court ultimately allowed the prosecution to introduce the statement

27

over the defense’s objections. Price argues that the admission was improper because

28

the trial court failed to demonstrate on the record that the danger of prejudice to Price
29

1

outweighed the probative value of the statement. He notes that the prosecution had

2

other means with which to impeach Yates, namely that she was a family member and,

3

therefore, biased.

4
5
6

The California Supreme Court held that the admission of Yates’s March 1983
statement to Sgt. Frederickson that a family member had told her that Price had killed six
people was suitable impeachment evidence because it expressed an opinion different

7
8
9

than the one she had testified to on the stand, specifically that she believed Price was not
guilty. Id. at 473-74. The court noted that while defense counsel objected to the
admission of the statement on a number of grounds, counsel failed to object on the

11
United States District Court
Northern District of California

10

ground of undue prejudice. Id. at 474.

12
13
14

Because Price has failed to show that the jury could draw no impermissible
inferences from Yates’s testimony, he has failed to show that the California Supreme
Court denial of this subclaim was an unreasonable application of clearly established

15
16
17

federal law or an unreasonable application of the facts on the record before the state
court. See Jammal, 926 F.2d at 920. Accordingly, this subclaim is DENIED.

18

C. Broad Impeachment Evidence

19

In this subclaim, Price challenges the trial court’s admission of two pieces of

20
21

evidence the prosecution introduced to counter Price’s direct testimony that he was “not
personally capable” of killing Elizabeth Hickey: questioning regarding an uncharged

22
robbery from the early 1970’s and Carpenter’s testimony regarding the Banks killing.
23
24

Price argues that the trial court improperly took the broadest view of that statement

25

without attempting to clarify its meaning and admitted the evidence despite the fact that

26

the prejudice to Price far outweighed the probative value.

27
28

The California Supreme Court held that both were proper impeachment evidence.
Price, 1 Cal.4th 476-77. The court stated that Price’s statement that he was incapable of
30

1

the Hickey murder sufficiently opened the door to cross-examination regarding prior

2

violent acts. Id. And while, “robbery is admittedly violence of a different order than brutal

3

murder,” the court determined that went to the weight accorded the evidence as opposed

4

to its admissibility. Id. at 477.

5
6

The state court denied the portion of this subclaim related to Carpenter’s testimony
regarding the Banks killing on different grounds than the challenge presented in the

7
8
9

petition. The decision laid out the history of the prosecution’s attempt to procure
Carpenter’s testimony for the penalty phase pursuant to Cal. Pen. Code section 190.3,
which allows evidence in aggravation at the penalty phase. Id. at 475-76. Because the

11
United States District Court
Northern District of California

10

prosecution did not timely identify Carpenter as a witness, the trial court barred the

12

prosecution from presenting his testimony in its case-in-chief, but allowed for Carpenter

13
14

to be called on rebuttal should it become appropriate to do so. RT 21505, AG037802.
The trial court ultimately permitted Carpenter to testify on rebuttal because it served two

15
16

purposes: to impeach Price’s statement that he was incapable of killing Hickey and to

17

rehabilitate prosecution witness Perryman, who had been a correctional officer who

18

responded to the scene of Banks’s killing. RT 22615, AG039057.

19
20
21

The California Supreme Court determined that the trial court erred in precluding
Carpenter’s testimony from the prosecution’s case-in-chief and held that this error did not
prejudice Price. Price, 1 Cal.4th at 476. It found that the defense had sufficient notice

22
under section 190.3 to be able to respond to the testimony. Id.
23
24

Price has not provided, nor has the court found, any clearly established federal law

25

that entitles him to questioning by a trial court judge to attempt to determine the meaning

26

of his own testimony and a narrowly tailored evidentiary ruling in response. The

27

California Supreme Court found the evidence was admitted properly as a matter of state

28

law. That determination binds this court. See Bradshaw, 546 U.S. at 76. The jury could
31

1
2

use the evidence to reach a permissible inference, thus its admission did not violate due
process. See Jammal, 926 F.2d at 920. Accordingly, this subclaim is DENIED.

3

D. Testimony Regarding Stolen Gun

4

As discussed in detail in the court’s Order Denying Claims XI, XII, XVI, XVIII, XXII,

5
6

XXIV, XXV, the prosecution called a gun manufacturer as a witness in the guilt phase to
impeach defense witness Rebecca Williams’s testimony that she did not know how to

7
8
9

operate a gun by describing that modifications that necessitated repair had been made to
a weapon she claimed to have inherited from her grandfather. Order at 63. The gun had
been found in Price’s possession. During the penalty phase, the prosecutor asked Price

11
United States District Court
Northern District of California

10

where he had obtained the gun. Price argues that the trial court erred in allowing this line

12

of questioning because the prosecution had failed to show a connection between the gun

13
14

and any of the crimes for which Price had been charged and convicted, it exceeded the
scope of direct examination, and it was irrelevant to any aggravating factor.

15
The California Supreme Court denied this subclaim, holding that it was relevant to

16
17

impeach Price’s claims on direct that he was innocent of the crimes charged, including

18

the conspiracy with the AB to accumulate guns. Price, 1 Cal.4th at 477. The court also

19

noted that Price’s possession of the weapon as a felon was illegal under state law and

20

countered his claims of rehabilitation. Id.

21

Price has failed to show that he was prejudiced by this line of questioning in light

22
of the fact that a significant amount of evidence about the gun was presented to the same
23
24

jury in the guilt phase. Additionally, he has failed to show that this denial was

25

unreasonable. As with the evidence challenged above, there was a permissible

26

inference the jury could draw from the testimony. Thus, this subclaim is DENIED.

27

//

28

//
32

2

Claim XXVII - The Court Improperly Restricted Petitioner’s CrossExamination of Prosecution Witnesses and Made Erroneous
Evidentiary Rulings

3

In this claim, Price challenges the exclusion of documents he wrote, which he says

1

4
5
6

V.

would have shown his ability to express himself in writing, and the trial court’s restriction
of the cross-examination of Ricky Carpenter, which Price says prevented him from
showing Carpenter’s bias.

7
8
9

A. Legal Standard
A person in custody pursuant to the judgment of a state court can obtain a federal
writ of habeas corpus only on the ground that he is in custody in violation of the

11
United States District Court
Northern District of California

10

Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A state court’s

12

evidentiary ruling therefore is not subject to federal habeas review unless the ruling

13
14

violates federal law, either by infringing upon a specific federal constitutional or statutory
provision or by depriving the defendant of the fundamentally fair trial guaranteed by due

15
16

process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal, 926 F.2d at 919-20;

17

Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021

18

(1986).

19
20
21

“[S]tate and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547
U.S. 319, 324 (2006) (alteration in original) (internal quotation marks omitted); see also

22
Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (holding that due process does not
23
24

guarantee a defendant the right to present all relevant evidence). This latitude is limited,

25

however, by a defendant’s constitutional rights to due process and to present a defense,

26

rights originating in the Sixth and Fourteenth Amendments. See Holmes, 547 U.S. at

27

324. “While the Constitution prohibits the exclusion of defense evidence under rules that

28

serve no legitimate purpose or that are disproportionate to the ends that they are
33

1

asserted to promote, well-established rules of evidence permit trial judges to exclude

2

evidence if its probative value is outweighed by certain other factors such as unfair

3

prejudice, confusion of the issues, or potential to mislead the jury.” Id. at 325-26; see

4

Egelhoff, 518 U.S. at 42 (holding that the exclusion of evidence does not violate the Due

5
6

Process Clause unless “it offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.”). But “at times a state’s rules

7
8
9

of evidence cannot be mechanistically applied and must yield in favor of due process and
the right to a fair trial.” Lunbery v. Hornbeak, 605 F.3d 754, 762 (9th Cir. 2010) (finding
California’s application of its evidentiary rules to exclude hearsay testimony that bore

11
United States District Court
Northern District of California

10

persuasive assurances of trustworthiness and was critical to the defense violated right to

12

present evidence).

13
14

The defendant, not the state, bears the burden to demonstrate that the principle
violated by the evidentiary rule “is so rooted in the traditions and conscience of our

15
16
17
18

people as to be ranked as fundamental.” Egelhoff, 518 U.S. at 47 (internal quotation
marks omitted).
Even if an evidentiary error is of constitutional dimension, the court must consider

19

whether the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993).

20

Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001).

21

B. Exclusion of Price’s Writings

22
1.

State Court Denial of Claim

23
24

Price sought to introduce a number of different writings at the penalty phase to

25

show his “sensitivity, compassion, and writing ability.” Price, 1 Cal.4th at 487. To these

26

ends, the trial court admitted:

27
28

(1) a 2-page short story entitled “Shorty and the Apple
Orchard” about a child’s experience with a horse; (2) a 17page description of life in prison, entitled “Chapter Two: San
34

1
2
3
4
5
6
7

Quentin State Prison 1970-1971”; (3) a 3-page essay entitled
“A Boxcar Realization” discussing how prison inmates repress
their emotions to avoid appearing vulnerable and how this
causes them to dismiss or ignore the emotional trauma
suffered by crime victims; (4) a 2-page letter of apology,
apparently addressed to the defense investigator; (5) a 7page letter of advice to a friend facing imprisonment for the
first time; (6) a 5-page autobiographical sketch, entitled
“Incorrigible,” about defendant’s experiences with the juvenile
justice system in Oregon; [and] (7) a 5-page essay entitled
“The Kind of Juror I Would Like”[.]
Id. at 485-86. The trial court denied admission, however, of twenty-three pages of “notes

8

and letters addressed to the trial judge protesting the shackling order and jail conditions

9

during the trial” on the grounds that the documents constituted hearsay and were an

10

United States District Court
Northern District of California

11
12

“incomplete and misleading account” of the reasons for the shackling order. Id. at 486.
On appeal, Price challenged the trial court’s exclusion of the twenty-three pages of
notes arguing that they were not presented for the truth of the matter asserted and,

13
14
15

therefore, were excluded improperly. Id. The California Supreme Court denied the
subclaim finding that the documents properly were excluded because they were

16

cumulative of the other admitted documents on the issue of Price’s ability to express

17

himself in writing.

18
19
20

2.

State Court Decision Not Unreasonable

Price has failed to show that the state court denial of this subclaim was an
unreasonable application of clearly established federal law or an unreasonable

21
22

application of the facts. Price has failed to identify any clearly established federal law

23

that would entitle him to relief on this claim. The three United States Supreme Court

24

cases he cites in the petition and reply are all inapposite and his primary challenge is to

25

the trial court’s purported violation of the California Evidence Code. Failure to comply

26

with state rules of evidence is neither a necessary nor a sufficient basis for granting

27

federal habeas relief on due process grounds. See Jammal, 926 F.2d at 919.

28
35

1

To support his argument that the trial court violated his constitutional rights by

2

refusing to admit certain documents he authored, Price cites to Woodson v. North

3

Carolina, 428 U.S. 280 (1976); Green v. Georgia, 442 U.S. 95 (1979); and Abdul-Kabir v.

4

Quarterman, 550 U.S. 233, 246 (2007). See Pet. at 605; Reply at 156. Woodson, he

5
6

argues, mandates that the jury be allowed to consider evidence of Price’s unique
character. Pet. at 605. Woodson found unconstitutional North Carolina’s law mandating

7
8
9

the death penalty for any first-degree murder conviction and it was within that context that
the Supreme Court discussed the need for a particularized consideration of the relevant
facets of a defendant’s character (428 U.S. at 304). Moreover, the excluded documents

11
United States District Court
Northern District of California

10

were not the only evidence of Price’s “ability to express his feelings in writing,” which he

12

argues is a unique personality aspect that demonstrates his life is worth saving (Pet. at

13
14

606). The trial court, as noted by the California Supreme Court, entered into evidence
seven other examples of Price’s writings, ranging from a children’s story, to a sample

15
16

chapter of the book he testified he intended to write, to an apology letter to the defense

17

investigator. By contrast, no evidence of the defendant’s particularized characteristics

18

was presented in Woodson.

19

Price next relies on Green for the proposition that the trial court improperly

20

excluded the documents on hearsay grounds. In Green, the Supreme Court found that

21

the exclusion of a witness’s testimony that the co-defendant in the case confessed that

22
he committed the murder alone after sending petitioner to run an errand for him, violated
23
24

due process because it was “highly relevant to a critical issue in the punishment phase of

25

trial.” 442 U.S. at 96-97. The “critical issue” in Green was whether the petitioner was

26

present when the murder occurred. The only evidence that the co-defendant committed

27

the murder by himself was the excluded testimony. Green is inapposite. As noted,

28

Price’s excluded evidence was cumulative.
36

1

Finally, Price cites Abdul-Kabir as requiring the presentation of all mitigating

2

evidence that might provide a basis for not imposing the death penalty. Reply at 156

3

(emphasis in original). The Supreme Court granted relief in Abdul-Kamir because the

4

jury had not been instructed to give “meaningful effect or a ‘reasoned moral response’ to

5
6

[the] defendant’s mitigating evidence.” 550 U.S. at 264 (citation omitted). Again, the
circumstances presented in the case vary greatly from those present in Price’s trial. The

7
8
9

defense produced and the trial court admitted ample evidence of Price’s ability to express
himself in writing, thus the jury was not precluded from considering that aspect of Price’s
character. Accordingly, even if the exclusion constituted error, it did not prejudice Price.

11
United States District Court
Northern District of California

10

This subclaim is DENIED.

12
13
14

C. Limitation on Carpenter Cross-Examination
1.

State Court Denial of Claim

The defense sought to impeach Ricky Carpenter, who testified regarding Price’s

15
16

stabbing of another San Quentin prisoner, Leroy Banks, by asking his probation officer on

17

cross-examination about the fact she had been unable to confirm Carpenter’s reported

18

recent employment. Price, 1 Cal.4th at 708. The trial court excluded the evidence as

19

irrelevant because it had no impeachment value. RT 22810, AG039288.

20
21

The California Supreme Court denied this subclaim because the issue of
Carpenter’s employment was irrelevant to his parole status because Carpenter’s parole

22
conditions did not require him to maintain employment. Price, 1 Cal.4th at 708. “Thus,
23
24
25
26
27
28

the proposed testimony had no value for impeachment.” Id.
2.

State Court Decision Not Unreasonable

Price argues that the evidence about the parole agent’s inability to confirm
Carpenter’s employment was “highly relevant as a factor in the parole department’s
determination whether Carpenter should be returned to custody because of his parole
37

1

violation” wherein he tested positive for drug use. Pet. at 607. By excluding the

2

evidence, the court prevented jurors from having all of the information they needed to

3

understand Carpenter’s vulnerability and to assess the likelihood of a revocation. Id. at

4

608. In his reply, Price acknowledges that Carpenter’s parole officer testified outside the

5
6

presence of the jury that Carpenter’s employment would have no bearing on a
determination regarding revocation; however, he argues that if the purported employment

7
8
9
10

United States District Court
Northern District of California

11
12
13
14

turned out to be a lie, it could have added an additional ground for revocation. Reply at
157. Additionally, Price argues that defense counsel should have been allowed to
explore the potential lie to show Carpenter’s “mendacity.” Id.
To support his argument, Price cites Davis v. Alaska, 415 U.S. 308 (1974). Davis
generally provides that a defendant should be able to cross-examine a prosecution
witness about probationary status, be it a juvenile adjudication or otherwise, to show the
witness’s potential vulnerability to pressure by the prosecution. 415 U.S. at 318. Here,

15
16

the trial court allowed Price to question Carpenter about his parole status and examine

17

the parole agent regarding Carpenter’s failed drug tests in April, May, and June 1986,

18

which contradicted Carpenter’s testimony that he stopped taking drugs after February

19

1986. Additionally, on cross-examination, Carpenter testified that he had received a

20

grant of immunity for a crime about which he testified and also received $800 from the

21

prosecution to relocate his family.

22
The trial court’s exclusion of the employment verification testimony and the
23
24

California Supreme Court’s denial of this subclaim did not abridge Davis. Price showed

25

Carpenter’s vulnerability and bias by introducing testimony about Carpenter’s parole

26

status; the positive drug tests, which demonstrated Carpenter’s willingness to lie on the

27

stand; the receipt of a prosecutorial immunity grant in another case; and the money

28

provided by the prosecution to relocate Carpenter’s family. Price has provided no
38

1

evidence to support his assertions that the employment issue would have factored in a

2

revocation decision and there is evidence in the record to support the state courts’

3

determinations that Carpenter’s employment was irrelevant to any such decision.

4

Accordingly, the California Supreme Court denial of this claim is not an unreasonable

5
6

determination of clearly established federal law or the facts and this subclaim is DENIED.

7

Claim XXVIII - California’s Death Penalty Statutory Scheme is
Unconstitutional

8

Price argues that the California Death Penalty statutory scheme violates the Fifth,

9
10

VI.

Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as
various provisions of the California Constitution, because it fails to adequately narrow the

United States District Court
Northern District of California

11
12
13

class of offenders eligible for the death penalty. Pet. at 611-12. To the extent Price
raises an argument about the constitutionality of the scheme under state law, such

14

argument is not cognizable on federal habeas. Estelle, 502 U.S. at 68. The California

15

Supreme Court denied this claim on the merits on habeas. See En Banc California

16

Supreme Court Opinion, In re Curtis F. Price, Case No. S069685 (Filed Apr. 13, 2011).

17

The United States Supreme Court has held California’s death penalty scheme

18
does appropriately narrow the class of death-eligible defendants and does not apply to
19
20

every defendant convicted of murder. See Tuilaepa v. California, 512 U.S. 967, 972

21

(1994) (holding that to pass constitutional muster, state’s death penalty scheme “may not

22

apply to every defendant convicted of murder; it must apply only to a subclass of

23

defendants convicted of murder”). As noted, Price was death-eligible because the jury

24

found true the multiple murder and robbery-murder special circumstances as to the

25

Hickey murder. Price has not shown that the special circumstances were not sufficiently

26
narrowing.
27
28

Price supports this claim by drawing upon data compiled by Dr. Steven Schatz
39

1

(“Schatz”). Price states that “at least 84% of first-degree murders were special

2

circumstances murders” in 1987. Pet. at 612. However, only “10% of convicted first

3

degree murders were sentenced to death.” Id. at 611. “As a result, only approximately

4

12% of the statutorily death-eligible class of first degree murderers were in fact being

5
6

sentenced to death.” Id. at 612. Thus, according to Price, California’s death penalty
scheme “fails to adequately narrow the class of individuals eligible for the death penalty”

7
8
9

and creates “across-the-board eligibility for the death penalty.” Id. at 609, 612.
The Ninth Circuit considered and rejected a substantially similar “failure to narrow”
claim in Karis v. Calderon, 283 F.3d 1117, 1141 n.11 (9th Cir. 2002). As the Karis court

11
United States District Court
Northern District of California

10

observed, “[t]he California [death penalty] statute satisfies the narrowing requirement set

12

forth by [the U.S. Supreme Court.]” Id. “The special circumstances in California apply to

13
14

a subclass of defendants convicted of murder and are not unconstitutionally vague. . . .
California has identified a subclass of defendants deserving of death and by doing so, it

15
16
17
18

has narrowed in a meaningful way the category of defendants upon whom capital
punishment may be imposed.” Id. (internal quotation marks omitted).
Likewise, in Mayfield v. Woodford, 270 F.3d 915, 924 (9th Cir. 2001), the Ninth

19

Circuit denied a certificate of appealability on a “failure to narrow” argument. As the court

20

noted, “[a] defendant is eligible for the death penalty under the 1978 statute [as enacted

21

in Cal. Penal Code § 190.2] only if, at the guilt phase, the jury finds him guilty of first

22
degree murder and finds to be true a statutorily defined special circumstance.” Id. That
23
24

finding narrows the total set of murderers to a more limited set of defendants eligible for

25

the death penalty. “At the penalty phase, the class of defendants eligible for death is

26

again narrowed by the jury's application of a series of statutorily enumerated aggravating

27

or mitigating factors,” which are listed in Cal. Penal Code § 190.3. Id. Thus, a

28

“reasonable jurist could not debate . . . that the 1978 California [death penalty] statute,
40

1
2

which narrowed the class of death-eligible defendants at both the guilt and penalty
phases, was constitutional.” Id.
Furthermore, several district courts have specifically rejected “failure to narrow”

3
4
5
6

arguments that draw upon Schatz’s analysis of criminal convictions from 1987. In Ayala
v. Wong, 2009 WL 1357416, *6 (S.D. Cal. May 13, 2009), for instance, the district court
acknowledged that petitioner had “presented his [failure to narrow] argument to the Court

7
8
9

accompanied by the declaration of Professor Steven F. Schatz.” The Ayala court found
this argument unavailing and explained that “[section] 190.2[ ] performs a genuine
narrowing function and thus fulfills the constitutional requirement imposed by [the U.S.

11
United States District Court
Northern District of California

10

Supreme Court] to distinguish between those murderers who are and are not eligible for

12

the death penalty.” Id. at *7; see also Hawkins v. Wong, 2013 WL 3422701, *3 (E.D. Cal.

13
14

July 8, 2013) (“The supplemental evidence [based on Schatz’s data] does not provide a
basis for deviating from the magistrate judge’s recommendation[ ]” to deny habeas relief).

15
16

Taken together, these cases—Karis, Mayfield, Ayala, and Hawkins—demonstrate that

17

Price’s arguments regarding § 190.2’s constitutionality are not well taken. Accordingly,

18

this claim is DENIED.

19

VII.

20

Claim XXIX - The Trial Court Improperly Precluded Petitioner from
Presenting Mitigation Evidence
This claim challenges the trial court’s exclusion of particular testimony by dietician

21
22

Pat Manuel and counselor Helen Vatcher as mitigation evidence at the penalty phase.

23

Price argues that Manuel should have been able to testify that Price’s diet directly

24

impacted his decision not to attend his own trial and explain the reasons why Price chose

25

to be vegetarian. Vatcher, he says, should have been allowed to testify that she had

26
seen Price crying, which would have shown his sensitivity.
27
28

//
41

1
2

A. Legal Standard
The sentencer in a death penalty case may not be prevented from considering “as

3

a mitigating factor, any aspect of a defendant's character or record and any of the

4

circumstances of the offense that the defendant proffers as a basis for a sentence less

5
6

than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis and footnotes
omitted); see also Hitchcock v. Dugger, 481 U.S. 393, 394 (1987).

7
8
9

B. State Court Denial
The trial court excluded Manuel’s testimony about the impact of Price’s diet on his
decision to attend trial, noting that whether Price came to trial was irrelevant to the

11
United States District Court
Northern District of California

10

dietician’s testimony. The California Supreme Court found the trial court’s ruling proper,

12

noting that Price himself testified as to why he skipped much of the guilt phase

13
14

proceedings and that the trial court had permitted Manuel to testify to Price’s “diet during
trial and to explain its probable effect on [his] emotional and physical health.” Price, 1

15
16

Cal.4th at 487. The court held that the impact of Price’s diet on any particular decision he

17

made was beyond Manuel’s expertise, would require her reliance on some level of

18

hearsay from Price, and, thus, was not appropriate questioning for that particular witness.

19

Id. at 488.

20
21

The California Supreme Court made a similar ruling as to the desired testimony by
Manuel regarding Price’s reasons for becoming a vegetarian. The trial court had allowed

22
Manuel to testify that Price was a vegetarian and to detail the inadequacy of the diet
23
24

provided by the jail and the effects of such on Price’s health. However, the trial court

25

held that Manuel was not the proper witness to explain Price’s reasons for becoming a

26

vegetarian. The trial court did allow Price, himself, to testify to that issue. The California

27

Supreme Court affirmed the decision and the reasoning behind it. Id. at 488.

28

As to Vatcher’s testimony, the California Supreme Court held that Price was not
42

1

prejudiced by the trial court’s ruling sustaining the prosecution’s objection to Vatcher’s

2

response to defense counsel’s question whether she had ever seen Price cry. Id. at 487.

3

While the trial court did sustain the objection, the witness answered, “Yes, I did,” and the

4

court did not strike her answer. RT 21933-34, AG038282-83. Moreover, when asked if

5
6

she had ever seen Price “express extreme emotional pain,” she answered, “Yes. He
cried with me.” RT 21934, AG038283. Thus, the jury heard the evidence Price sought to

7
8
9
10

have introduced.
C. State Court Denial Was Reasonable
To support his argument that Manuel should have been able to testify to the role of

United States District Court
Northern District of California

11

Price’s diet in his determination not to attend trial, Price relies on Tennard v. Dretke, 542

12

U.S. 274, 284-85 (2004). Tennard overturned a Fifth Circuit practice of determining the

13
14

constitutional relevance of a particular piece of evidence prior to allowing its admission
for mitigation purposes. Id. at 283-84. Tennard reiterated the standard of relevancy,

15
16

noting that good character evidence would always be relevant because it might “‘serve as

17

a basis for a sentence less than death.’” Id. at 285, citing Lockett, 438 U.S. at 604. As

18

noted by the California Supreme Court, Price was not precluded from presenting any of

19

the evidence in mitigation he sought to introduce. The two pieces of testimony he sought

20

from Manuel were best and most reliably testified to by Price himself, and he was allowed

21

to testify to those issues. Price has not provided any clearly established federal law that

22
would entitle him to the testimony of an expert witness regarding Price’s reasons for his
23
24
25

own decisions.
The challenged Vatcher testimony that she had witnessed Price cry was heard by

26

the jury, more than once during her questioning. As such, Price has been unable to show

27

that the California Supreme Court’s denial of this claim was an unreasonable application

28

of clearly established federal law or an unreasonable application of the facts.
43

1
2

Accordingly, this claim is DENIED.
VIII.

Claim XXX - The Jury Was Left No Choice But to Conclude the Banks Killing
Was Murder

3
In this claim, Price raises two challenges to the trial court’s instructions to the jury
4
5

in the penalty phase regarding the Banks killing. First, Price argues that the trial court’s

6

instructions on first-degree murder and assault with a deadly weapon left the jury with no

7

choice but to conclude that the Banks killing was either first-degree murder or a legally

8

justifiable killing because the trial court excluded instructions on second-degree murder

9
10

and manslaughter. Price states that the failure to instruct on those alternative theories
prejudiced him because the focus on first-degree murder exaggerated the seriousness of

United States District Court
Northern District of California

11
12
13
14

Price’s prior violent, criminal behavior and deprived the jury of the opportunity of finding it
less culpable criminal conduct.
Second, Price argues that the trial court’s erroneous inclusion of felony-murder

15

instructions further complicated the matter because the prosecution presented no

16

evidence on which to base a determination that the Banks killing constituted a first-

17

degree murder based on felony-murder. Thus, Price says, there is no basis for knowing

18
whether the jury determined that Price had committed first-degree murder based on an
19
20
21

invalid legal theory.
Respondent asserts that the trial court was not obligated to instruct on theories not

22

requested by the defense because the prosecution only needed to show that the Banks

23

killing was “criminal” and “violent” for it to be considered an aggravating factor under Cal.

24

Pen. Code section 190.3 (b). Ans. at 371-72. Respondent notes that defense counsel

25

requested that the jury be required to find the prosecution’s first-degree murder theory to

26
be true before they could consider the event an aggravating factor, hence the need for
27
28

instruction on first-degree murder. Id.
44

1
2

A. Legal Standard
A challenge to a jury instruction solely as an error under state law does not state a

3

claim cognizable in federal habeas corpus proceedings. See Estelle, 502 U.S. at 71-72.

4

To obtain federal habeas relief for instructional error, a petitioner must show that the

5
6

ailing instruction by itself so infected the entire trial that the resulting conviction violates
due process. See id. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973). See also

7
8
9

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (“it must be established not merely
that the instruction is undesirable, erroneous or even ‘universally condemned,’ but that it
violated some [constitutional right]”) (citation and quotation marks omitted). The

11
United States District Court
Northern District of California

10

instruction may not be judged in artificial isolation, but must be considered in the context

12

of the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other

13
14

words, the court must evaluate jury instructions in the context of the overall charge to the
jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169

15
16

(1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843

17

F.2d 314, 317 (9th Cir.1988). See also Middleton v. McNeil, 541 U.S. 433, 434–35

18

(2004) (per curiam) (no reasonable likelihood that jury misled by single contrary

19

instruction on imperfect self-defense defining “imminent peril” where three other

20

instructions correctly stated the law). If an error is found, the court also must determine

21

that the error had a substantial and injurious effect or influence in determining the jury’s

22
verdict, Brecht, 507 U.S. at 637, before granting relief in habeas proceedings. See
23
24
25

Calderon v. Coleman, 525 U.S. 141, 146–47 (1998).
The omission of an instruction is less likely to be prejudicial than a misstatement of

26

the law. See Walker v. Endell, 850 F.2d at 475-76 (citing Henderson, 431 U.S. at 155).

27

Thus, a habeas petitioner whose claim involves a failure to give a particular instruction

28

bears an “‘especially heavy burden.’” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir.
45

1

1997) (quoting Henderson, 431 U.S. at 155). The significance of the omission of such an

2

instruction may be evaluated by comparison with the instructions that were given.

3

Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S.

4

at 156); see id. at 972 (due process violation found in capital case where petitioner

5
6

demonstrated that application of the wrong statute at his sentencing infected the
proceeding with the jury’s potential confusion regarding its discretion to impose a life or

7
8
9
10

death sentence).
B. State Court Denial
The California Supreme Court denied the first subclaim finding that state law did

United States District Court
Northern District of California

11

not require the trial court to instruct on any theories for which the defense did not

12

specifically request an instruction. Price, 1 Cal.4th at 489. This rule allows the defense

13
14

the opportunity to minimize the amount of instructions should it decide that instructions on
all elements of all offenses could cause the jury to place undue significance on the crimes

15
16
17
18

presented as aggravating factors and not on the central question of whether a defendant
should live or die. Id.
With regard to the second subclaim, the California Supreme Court found the

19

inclusion of the felony-murder instruction to be erroneous because Banks was not killed

20

during the commission or attempted commission of an inherently dangerous felony. Id.

21

However, the state court determined that the inclusion was not prejudicial because the

22
instructions only fully defined first-degree murder with premeditation and deliberation,
23
24

which was supported by witness Ricky Carpenter’s testimony. Id. Thus, the court

25

concluded that if the jurors believed Carpenter’s testimony, Price necessarily committed a

26

premeditated and deliberated first-degree murder of Banks. Id. If they did not believe

27

Carpenter’s testimony, the instructions became “irrelevant” because there were no

28

definitions for less culpable forms of homicide and it fell within the province of the jury to
46

1

determine the aggravating force of the event without regard to its legal label. Id.

2

C. State Court Denial Was Reasonable

3

Price has failed to show that the California Supreme Court denial of this claim was

4
5
6

an unreasonable application of clearly established federal law or an unreasonable
application of the facts on the record before it. Price provides no clearly established
federal law to support his claim for relief. The case he cites for the proposition that the

7
8
9

jury should have been instructed on lesser-included offenses, Beck v. Alabama, 447 U.S.
625 (1980), holds that such instructions are required in the guilt phase “when the
evidence unquestionably establishes that the defendant is guilty of a serious, violent

11
United States District Court
Northern District of California

10

offense—but leaves some doubt with respect to an element that would justify conviction

12

of a capital offense.” Id. at 637. That case has not been extended to apply to the

13
14

presentation of evidence under Cal. Penal Code section 190.3(b) in the penalty phase.
That it deals with instructions for murder in a capital case is not sufficient. See Woods v.

15
16

Donald, 135 S. Ct. 1372, 1377 (2015) (If the circumstances of a case are only “similar to”

17

Supreme Court precedents, then the state court’s decision is not “contrary to” the

18

holdings in those cases.).

19
20
21

Additionally, Price has failed to show that the California Supreme Court’s finding
that the inclusion of the erroneous felony-murder instructions did not violate his due
process rights was unreasonable. “A state court’s determination that a claim lacks merit

22
precludes federal habeas relief so long as “‘fairminded jurists could disagree’ on the
23
24

correctness of the state court’s decision.” Harrington, 131 S.Ct. at 786 (quoting

25

Yarborough, 541 U.S. at 664). A petitioner must show the state court’s decision “was so

26

lacking in justification that there was an error well understood and comprehended in

27

existing law beyond any possibility for fairminded disagreement.” Id. at 786-87. Price

28

has fallen far short of showing that all fairminded jurists would agree that he was
47

1

prejudiced by the inclusion of the erroneous instructions. The felony-murder instructions

2

constituted one line in the middle of a massive instruction about the requirements for

3

finding first-degree murder. Additionally, as noted by the California Supreme Court,

4

Carpenter’s testimony supported a finding of first-degree murder, and the jurors did not

5
6

evidence any confusion with the instructions. Accordingly, this claim is DENIED.

7

Claim XXXI - The Trial Court Coerced the Jury into Rendering a Verdict After
It Had Reported a Deadlock

8

Price challenges as coercion the trial court’s instruction to the jury that it continue

9
10

IX.

deliberating following the jury’s report of a deadlock. Price argues that three interrelated
errors regarding the court’s instruction violated his rights: (1) the trial court lacked any

United States District Court
Northern District of California

11
12
13

legitimate basis to reject the jury’s declaration of deadlock, (2) the court misled the jury by
“strongly implying that a verdict would have to be obtained at some point in order to bring

14

the case to a conclusion,” and (3) the court refused to allow a juror to ask a question.

15

Pet. at 621-22.

16
17

A. Legal Standard
“Any criminal defendant . . . being tried by a jury is entitled to the uncoerced

18
verdict of that body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). Thus, an
19
20

instruction is unconstitutionally coercive if it denies the defendant the due process right to

21

a trial by a fair and impartial jury. DeWeaver v. Runnels, 556 F.3d 995, 1007 (9th Cir.

22

2009). The use of a supplemental jury charge given by the court to encourage a jury to

23

reach a verdict after the jury has been unable to agree for some period of deliberation

24

has long been sanctioned. See Allen v. United States, 164 U.S. 492, 501–02 (1896).

25

The Ninth Circuit has said that in a habeas case involving a state conviction the

26
questions for the court are (1) whether the applicable state court looked at the totality of
27
28

the circumstances in determining if the instruction was coercive; and (2) whether that
48

1

court’s determination on the coercion question was reasonable. Parker v. Small, 665

2

F.3d 1143, 1148 (9th Cir. 2011); DeWeaver, 556 F.3d at 1007 (state appellate court’s

3

holding that supplemental jury instruction containing a hypothetical mildly slanted in favor

4

of the prosecution was not coercive was not contrary to Lowenfield).

5
6

Federal courts reviewing an Allen charge given by a state court must consider the
supplemental instruction “‘in its context and under all circumstances,’” Lowenfield, 484

7
8
9

U.S. at 237 (citation omitted); Jiminez v. Myers, 40 F.3d 976, 980 (9th Cir. 1993); Locks
v. Sumner, 703 F.2d 403, 406–07 (9th Cir. 1983). Whether the comments and conduct of
the state trial judge violated due process ultimately turns on whether “‘the trial judge’s

11
United States District Court
Northern District of California

10

inquiry would be likely to coerce certain jurors into relinquishing their views in favor of

12

reaching a unanimous decision.’” Jiminez, 40 F.3d at 979 (quoting Locks, 703 F.2d at

13
14

406). Relief will not be granted “unless it is ‘clear from the record’ that an Allen charge
had an impermissibly coercive effect on the jury.” Rodriguez v. Marshall, 125 F.3d 739,

15
16

750 (9th Cir. 1997).
Because an Allen charge carries the potential for jury coercion, the trial judge

17
18

using the charge should instruct jurors not to surrender their sincere convictions when

19

they reassess their positions. See United States v. Bonam, 772 F.2d 1449, 1451 (9th

20

Cir. 1985); cf. Rodriguez, 125 F.3d at 750 (no coercion where judge not only advised

21

jurors not to surrender their sincerely held beliefs but 1) made no comment on numerical

22
split, 2) did not know whether the majority favored conviction or acquittal, and 3) did not
23
24

know the identity of the holdouts; fact that the jury deliberated for four more days and

25

called for a reading of testimony indicated that there had been no coercion). This

26

assures that the “integrity of individual conscience in the jury deliberation process . . . not

27

be compromised.” United States v. Mason, 658 F.2d 1263, 1268 (9th Cir. 1981).

28

//
49

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2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

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

B. State Court Denial
The California Supreme Court decision denying this claim details the factual
background underlying it:
The jury began its penalty deliberations at 10:41 a.m. on
Tuesday, July 1, 1986. It deliberated until 4:55 p.m. that day
and from 9 a.m. until 4:38 p.m. on the following day. On
Thursday, July 3, the jury again began deliberating at 9 a.m.
At 1:55 p.m., the foreperson sent the court a note that stated:
“We seem to have reached an impasse in making a
unanimous decision. Any suggestions?” In the courtroom, at
2:33 p.m., the court asked whether there was a reasonable
probability that further deliberations would produce a verdict.
The foreperson replied: “When I wrote the note, I was not
sure. Since sending the note, we have taken another vote and
the numbers have changed. So we may not be at an
impasse.” The jury returned to the jury room and deliberations
continued.
Less than an hour later, the foreperson sent the court a note
stating that the jury was deadlocked. The jury returned to the
courtroom at 4:03 p.m. In response to the court's inquiries, the
foreperson said that the vote was seven to five, that it had not
changed during the last four ballots, and that she did not think
the votes were likely to change. Asked whether they shared
the view that further deliberations would probably not result in
a verdict, 10 of the 11 remaining jurors responded in the
affirmative. The 11th juror was unsure. The court then
consulted briefly with counsel at the bench. The prosecution
favored further deliberations; defense counsel said they were
satisfied there was a deadlock.
The court addressed the jury: “Ladies and gentlemen, at a
time like this, the law is in an odd position in a way. The law's
clear that there can be no force or coercion applied to a jury to
reach a verdict. You're asked to give your individual opinion
and, apparently, you certainly have. And, of course, on the
other side of that coin, there's a desire of everyone, I'm sure
yourselves, to conclude this once and for all.
“So, my comments at this point are not to be in any way an
attempt to change anyone. All I'm saying, at this point in time,
everyone here-I think everyone who hasn't been in the jury
room can't imagine what you've struggled with. We know
you've been here for the last year struggling with everyone
else to get through the case.
“And on the other hand, everyone here would like to see it
over with. I think they would also like to see-well, without
going any more, we would all like to see it end today, of
course. I think what I'd like to do, although I have reservations,
I see things both ways.
50

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16

“I think what I'll do is recess until Monday and let you meet
again Monday morning and discuss it. And if you feel the
same way you feel now, then we'll reassemble just like we are
now. So at this point I'm going to give you the admonition.
[Court gives usual admonition not to discuss the case.]
“If you can, please have a pleasant Fourth of July weekend.
Try to forget about the problem that faces you. And please do
not take my continuing this to Monday as any attempt to
coerce you in any way. I just want to give you time to get
away from it for a while, come back and approach it fresh. If
you still have the same mind, there's no one here going to
force you to do anything you don't want to abide by.”
A juror then inquired, “I presume I can't ask a question?” The
court replied, “Please, not now.”
The jury resumed deliberations at 9:30 a.m. on July 7. At 10
a.m., the foreperson sent the court a note requesting seven
items of evidence. During the remainder of that day and the
next, the jurors requested several additional items of
evidence, which were provided to them. At 3:40 p.m. on July
8, the jury announced it had reached a verdict. On being
polled, each juror affirmed unequivocally that the verdict
imposing the death penalty was the individual verdict of that
juror.
Price, 1 Cal.4th 465-66.
Under California law, a trial judge can discharge a deadlocked jury that has no
reasonable probability of reaching agreement “at the expiration of such time as the court

17
18

may deem proper.” Cal. Penal Code § 1190. In making that determination, the trial court

19

may consider the length of time the jury has deliberated. Price, 1 Cal.4th at 467, citing

20

People v. Haskett, 52 Cal.3d 210, 241 (1990).

21
22
23

The California Supreme Court denied this claim finding that the trial court had not
abused its discretion in determining that the jury had not deliberated sufficiently. Id. At
the time the jury declared an impasse, they had deliberated for two and a half days,

24
whereas the penalty phase of the trial had lasted three weeks and the guilt phase took
25
26

more than seven months. Id.

27

The California Supreme Court also found that the instruction itself was not

28

coercive because the trial court made it clear that if the weekend break did not allow the
51

1

jurors to resolve the impasse, they should again report a deadlock. Id. It held that the

2

jurors’ requests for additional evidence following their return to deliberations the next

3

week indicated they understood they were not to abandon their individual judgment for

4

the sake of agreement. Id. Finally, the court held that the trial court’s response to the

5
6

juror who sought to ask a question following the instruction to rest over the holiday
weekend and the admonition to not discuss the case was not in error. Id. The ruling

7
8
9

stated that both the question posed and the court’s response indicated that the court took
issue with the timing of the question, not the desire to inquire itself. Id.
C. State Court Denial Was Not Unreasonable

11
United States District Court
Northern District of California

10

Price has failed to show that the trial court’s charge to the jury violated clearly

12
13
14

established federal law. At the outset of the instruction to take the weekend to rest and
deliberate, the trial court said, “So, my comments at this point are not to be in any way to
attempt to change anyone.” RT 23056, AG039546. After explaining that the jury had

15
16
17
18
19
20
21

spent a year struggling with the case and understanding that some would want it to be
over, the court then said:
I think what I’d like to do, although I do have reservations, I
see things both ways.
I think what I’ll do is recess until Monday and let you meet
again Monday morning and discuss it. And if you feel the
same way you feel now, then we’ll reassemble just like we are
now.

22

RT 23057, AG039547. The trial court clearly stated its ability to see both options:

23

requiring the jurors to continue deliberating and declaring a mistrial due to impasse. The

24

court then asked them to take the weekend, meet the following Monday, and stated

25

unequivocally that if they remained deadlocked, he would address the matter then. Thus,

26
not only did the trial court advise jurors not to surrender their individual opinions on the
27
28

matter, but he also stated that if the impasse still existed following the weekend, he would
52

1
2

resolve the matter. See Rodriguez, 125 F.3d at 750.
Price’s contentions that the trial court improperly inquired into the division of the

3

jurors do not afford him relief. While the judge did know there was a seven-to-five split,

4

he specifically stated that he did not want to know which way the split went and the jurors

5
6

did not tell him that. RT 23052, AG039542.
Price relies on Brasfield v. United States, 272 U.S. 448 (1926); Jenkins v. United

7
8
9

States, 380 U.S. 445 (1965); and United States v. Ajiboye, 961 F.2d 892 (9th Cir. 1992)
for the proposition that inquiring into the numerical split between the jury is per se
coercive. Those cases, however, are distinguishable. Those cases apply specifically to

11
United States District Court
Northern District of California

10

federal proceedings and “[t]he Federal Courts of Appeals have uniformly rejected the

12

notion that Brasfield’s per se reversal approach must be followed when reviewing state

13
14

proceedings on habeas corpus.” Lowenfield, 484 U.S. at 240, n. 3; see also Locks v.
Sumner, 703 F.2d 403, 405 (9th Cir. 1983) (“Brasfield. . ., however, involved the propriety

15
16

of making this inquiry in federal trials. Neither the Supreme Court nor this circuit has held

17

that the rule in Brasfield is a necessary component of one’s Sixth Amendment right to an

18

impartial jury, applicable to the state courts by virtue of the Fourteenth Amendment.). An

19

inquiry into the numerical divide would only violate Price’s rights “if the trial judge's inquiry

20

would be likely to coerce certain jurors into relinquishing their views in favor of reaching a

21

unanimous decision.” Locks, 703 F.2d at 406. The circumstances surrounding the court’s

22
instruction do not lend themselves to an interpretation of coercion.
23
24

As noted, the jurors were not sent back to continue deliberations. Rather, the trial

25

court released them for the holiday weekend. Following the weekend break, the jury

26

continued deliberating for two more days, nearly as long as they had when they were

27

instructed to resume deliberations on Monday if possible, and reviewed several pieces of

28

evidence prior to reaching a verdict. Cf. Rodriguez, 125 F.3d at 750. They did not report
53

1

an issue of deadlock again to the trial court.

2

Price has failed to show that the California Supreme Court’s denial of this claim

3

was an unreasonable application of clearly established federal law or an unreasonable

4

interpretation of the facts. He also has failed to meet his burden under AEDPA regarding

5
6

the denial of the subclaim regarding the juror’s last-minute question. No reasonable juror
would have concluded that the judge was prohibiting them from asking any questions.

7
8
9
10

Accordingly, this claim is DENIED.
X.

Claim XXXII - Additional Errors in Sentencing Procedures Mandate Vacating
the Judgment
This claim challenges a number of “errors and flaws” in California’s sentencing

United States District Court
Northern District of California

11
12
13

scheme that he says mandate a reversal of the death judgment because they violated his
rights to due process, a fair trial, the effective assistance of counsel, and his right to be

14

free from cruel and unusual punishment, as guaranteed by the Fourth, Fifth, Sixth,

15

Eighth, and Fourteenth Amendments. Specifically, Price argues: (1) the jury instructions

16

encouraged the jury to “double count” the circumstances of the crimes for which he was

17

convicted as aggravating factors; (2) Cal. Penal Code section 190.3(a) is vague and

18
standardless, which allows for unreliable and arbitrary determinations about the
19
20

appropriateness of the death penalty; (3) the jury was not required to be unanimous in its

21

determination about which circumstance of a crime constituted an aggravating factor; (4)

22

the jury was not required to find “circumstances of the crime” that constituted aggravating

23

factors beyond a reasonable doubt; (5) the jury was not required to unanimously agree as

24

to whether conduct they were considering under Cal. Penal Code section 190.3(b)

25

occurred; (6) the admission of evidence of prior uncharged criminal conduct; (7) the jury

26
was not instructed that it must unanimously decide whether Price suffered prior
27
28

convictions beyond a reasonable doubt; (8) the failure to require written findings by the
54

1

jury as to aggravating and mitigating factors; (9) the jury instructions failed to inform

2

jurors that if they found the mitigating factors outweighed the aggravating factors that

3

they must return a sentence of life without the possibility of parole; (10) the instruction

4

that jurors may impose a death sentence only if the aggravating factors are “so

5
6

substantial” in comparison to the mitigating circumstances that death is warranted
creates an unconstitutionally vague standard; (11) the trial court improperly considered

7
8
9

the probation officer’s report prior to denying the automatic motion for modification; (12)
before pronouncing sentence, the trial court improperly considered a highly emotional
statement from Elizabeth Hickey’s mother; and (13) the trial court was exposed to

11
United States District Court
Northern District of California

10

documents through in camera hearings that were not provided to the defense, “which

12

presumably contained prejudicial hearsay and speculation about [Price] and/or people

13
14

with whom he associated” and which may have tainted the trial court’s ruling on the
motion for modification and pronouncement of the death judgment. Pet. at 627-30.

15
16
17

A. State Court Denial
The California Supreme Court denied this claim noting that Price acknowledged

18

that the court previously had rejected each of the subclaims relating to the validity of

19

California’s death penalty statute in prior rulings and that Price had failed to provide

20

persuasive reasoning to reconsider. Price, 1 Cal.4th at 490. Specifically, it held: the jury

21

may consider a defendant’s prior unajudicated criminal activity as evidence in

22
aggravation at the penalty phase; the prosecution may rely on evidence of such activity
23
24

even though the statute of limitations may have expired; the jury is not required to use a

25

reasonable doubt standard when evaluating whether aggravating circumstances other

26

than criminal conduct exist “or whether death is the appropriate penalty;” “[t]he jury is not

27

required to make written findings or to agree uanimously on the presence of individual

28

aggravating circumstances;” the trial court is not required to clarify CALJIC No. 8.84.1 to
55

1

explain that section 190.3(a) (“the circumstances of the crime in the present proceeding”)

2

and 190.3(b) (“criminal activity involving violence”) considerations are mutually exclusive;

3

and the jury “may use [a] defendant’s commission of a felony to elevate a killing to first

4

degree murder, to find a special circumstance, and as factor in aggravation.” Id.

5
6

Petitioner raised subclaims 11, 12, and 13 in the California Supreme Court in a
challenge to the trial court’s denial of his automatic motion to modify the penalty verdict.

7
8
9

The California Supreme Court held that Price was not entitled to relief on his subclaim
that the trial court improperly considered the presentence report in denying the verdict
modification motion because the trial court “did not allude to the report or its contents, or

11
United States District Court
Northern District of California

10

to anything not presented to the jury, during the detailed explanation it gave in denying

12

the modification motion.” Id. at 491. Thus, the California Supreme Court concluded that

13
14

the trial court must have only considered the presentence report for sentencing on the
noncapital offenses. Id.

15
16

Price’s subclaim that the trial court improperly denied the modification motion after

17

considering testimony from Elizabeth Hickey’s mother was denied because the victim’s

18

mother made her statement following the trial court’s denial of the motion. Id. Finally, the

19

court denied the subclaim alleging that the trial court was improperly influenced by

20

documents and testimony that were not admitted into evidence because “the record does

21

not rebut the presumption that the court understood and fulfilled its obligation to decide

22
the modification motion solely on the basis of the evidence presented to the jury.” Id.
23
24
25
26
27
28

B. State Court Denial Was Not Unreasonable
1.

Challenges to Cal. Penal Code section 190.3

Price cannot show that the state court’s reasoned opinion is contrary to, or an
unreasonable application of, clearly established United States Supreme Court law. Price
also fails to demonstrate that the state court’s opinion relied on an unreasonable
56

1

determination of the facts. Tellingly, he does not—and cannot—cite a single decision in

2

support of his argument that the California death penalty statutes are unconstitutional

3

under federal law. Without any citation to mandatory or persuasive authority in support of

4

his argument, Price cannot demonstrate that the state court’s denial of this claim was

5

objectively unreasonable.

6

Indeed, the state court’s reasoned decision was consonant with clearly established

7
8
9

federal law. For example, Price alleges that the penalty phase jury instructions are
deficient because they do not designate mitigating and aggravating factors. In Tuilaepa,
however, the United States Supreme Court held that giving a penalty phase jury a unitary

11
United States District Court
Northern District of California

10

list of sentencing factors that does not designate which factors are mitigating and which

12

are aggravating does not violate the Constitution. 512 U.S. at 978–79. Moreover, our

13
14

Court of Appeals has found that California’s “death penalty statute’s failure to label
aggravating and mitigating factors is constitutional.” Williams v. Calderon, 52 F.3d 1465,

15
16

1484 (9th Cir.1995) (citations omitted). The Williams court also held that California’s

17

death penalty statute “offers constitutionally-sufficient guidance to jurors to prevent

18

arbitrary and capricious application,” “ensures meaningful appellate review,” and “need

19

not require written jury findings in order to be constitutional.” Id. (citations omitted). The

20

court also held that “the failure of the statute to require a specific finding that death is

21

beyond a reasonable doubt the appropriate penalty does not render it unconstitutional.”

22
Id. Price’s citation to Ring v. Arizona, 536 U.S. 584, 609 (2002) is unavailing. Ring
23
24

overruled a practice that allowed a judge, as opposed to a jury, to find elements in

25

aggravation. The finding of any aggravating elements here was within the sole province

26

of the jury. Because Petitioner is unable to show an entitlement to relief on this set of

27

subclaims, they are DENIED.

28

//
57

2.

1

General Challenges to the Death Penalty

As noted by Price in his reply, his general challenges to California’s death penalty

2
3

statutes, specifically the claims regarding the statute’s failure to narrow the class of

4

defendants eligible for a capital sentence and failure to require an intercase

5
6

proportionality review, are addressed by Claim XXVIII. See Reply at 168. Price has not
provided the Court with any reason to revisit the discussion above, thus it declines to do

7
8
9

so. All subclaims regarding the constitutionality of California’s death penalty scheme are
DENIED.
3.

10

Subclaims Regarding Consideration of Improper Evidence

United States District Court
Northern District of California

11

Regarding Price’s subclaims 11, 12, and 13, he has not shown that the California

12

Supreme Court’s denial was unreasonable. While the trial court did indicate it had read

13
14

and considered the probation report, as noted by the California Supreme Court, it did not
rely on any evidence within the probation report when it denied Price’s motion for a new

15
16

trial. Following the court’s statement that it had read the probation report, it entertained

17

argument from defense counsel as to why it should not consider what the report

18

contained. RT 23131-33, AG039621-23. The trial court then cited several pieces of

19

admitted evidence to support its denial of Price’s motion. RT 23134-43, AG039624-33.

20

Following that ruling, the trial court took Hickey’s mother’s statement. RT 23134,

21

AG039634. Price has failed to show that the trial court used any improperly received

22
evidence to support its rulings. Accordingly, these subclaims are also DENIED.
23
CONCLUSION

24

For the reasons set forth above, Claims XIII, XV, XXI, XXIII, XXVII, XXVIII, XXIX,

25
26

XXX, XXXI, and XXXII are DENIED.

27

//

28

//
58

1

A subs
sequent Ord resolvin Claims IX XIV, XIX and XX s
der
ng
X,
X,
shall issue. That Order

2

all
e
otion for ev
videntiary he
earing on th remainin fourteen
he
ng
sha set forth a schedule for the mo

3

cla
aims.

4

IT IS SO ORDER
S
RED.

5
6
7
8

Da
ated: September 25, 20
017
__
__________
__________
__________
_______
PH
HYLLIS J. H
HAMILTON
Un
nited States District Ju
s
udge

9
10

United States District Court
Northern District of California

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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
59