Gore v. Horel, No. 4:2008cv04365 - Document 8 (N.D. Cal. 2011)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 8/15/2011. (ndr, COURT STAFF) (Filed on 8/15/2011)
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Gore v. Horel Doc. 8 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 United States District Court For the Northern District of California 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING CERTIFICATE OF APPEALABILITY Petitioner, 8 9 No. C 08-04365 CW (PR) ANTHONY C. GORE, v. ROBERT A. HOREL, Warden, Respondent. 11 / 12 13 Petitioner Anthony Clark Gore is a prisoner of the State of 14 California, incarcerated at California Medical Facility. On 15 September 17, 2008, Petitioner filed a pro se petition for a writ 16 of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the 17 validity of his 2005 state conviction. Respondent opposes the 18 petition. Petitioner has not filed a traverse. Having considered 19 all of the papers filed by the parties, the Court DENIES the 20 petition. 21 BACKGROUND 22 The following is a summary of the facts taken from the 23 December 5, 2007 state appellate court’s unpublished opinion on 24 direct appeal. Respondent. Ex. F1, People v. Gore, No. A112059, 25 2007 WL 4248859 at *1-6 (Cal. Ct. App. 1 Dist. Dec. 5, 2007). 26 27 28 1 All references herein to exhibits are to the exhibits submitted by Respondent in support of the Answer. Dockets.Justia.com 1 2 A. Wagner’s Death Petitioner was a patient at Napa State Mental Hospital.2 He shared a room at the hospital with patient Dennis Wagner. 4 7:00 and 7:30, on the morning of May 3, 2002, another patient, 5 Randy Robertson, found Wagner in his bed, not breathing. 6 face was swollen, as if he had been in a fight. 7 lying awake on his bed. 8 with Wagner, and Petitioner answered, “The mother fucker’s asleep.” 9 Robertson went to get a nurse, James Miller, who came to the room. 10 United States District Court For the Northern District of California 3 Petitioner was lying on his bed, on his back, with his arms folded 11 behind his head. 12 Miller saw that Wagner had no pulse and that his neck and upper 13 mouth areas were swollen. 14 for twenty to thirty minutes to resuscitate Wagner. 15 first fifteen minutes of that time, Petitioner continued to lie 16 fully dressed on his back, shoes on, with his arms folded behind 17 his head, appearing relaxed. 18 attempts and looked at the ceiling without moving. 19 suspected Petitioner had been involved in Wagner’s death, and told 20 one of the police officers who had come to the room, “You need to 21 watch him.” 22 Petitioner was responsible for Wagner’s death. 23 Between Wagner’s Petitioner was Robertson asked Petitioner what was wrong He looked at Miller without saying anything. Miller and other medical personnel tried During the Petitioner watched the resuscitation Miller Miller also told a nurse, Judith Boan, that he thought A paramedic who was called around 8:00 or 8:30 pronounced 24 Wagner dead, and concluded he had been dead for an hour or two. 25 Wagner had died of asphyxia due to manual strangulation. His face 26 27 28 2 Petitioner had been found not guilty of an assault in 1999 by reason of insanity, and was committed to the mental hospital. 2 1 and neck were bruised, there was redness along the jaw and an 2 abrasion on the chin, and blood had come from his mouth. 3 B. Aftermath of Wagner’s Death and Investigation 4 During the resuscitation, Boan asked Petitioner to leave the 5 room. 6 with her to a seclusion room without saying anything. 7 stood at the door of the seclusion room to make sure Petitioner did 8 not leave. 9 been Wagner’s killer, Boan wanted to see Petitioner’s body to see Accompanied by three uniformed officers, Petitioner went An officer When Miller told Boan he thought Petitioner might have United States District Court For the Northern District of California 10 if he had any wounds. 11 appeared to know his surroundings, and Boan did not see indications 12 of any psychiatric problems. 13 Petitioner’s shirt, sweat pants and shoes. Boan told Petitioner to 14 remove his outer clothing, and he did so. Petitioner’s only injury 15 was on his right hand where there was coagulated blood. 16 Petitioner what had happened to his knuckle, and he did not 17 respond. 18 himself, and he said he had hit a wall the previous day. 19 officer asked Petitioner how he had gotten blood on his knee, and 20 he said he had fallen in the courtyard the previous day. 21 Petitioner appeared to understand the questions, and answered them 22 calmly and directly, although he had a “blank stare on his face.” 23 Petitioner responded to her directions and There were spots of blood on Boan asked One of the officers asked Petitioner how he had injured The Later that morning, Jon Crawford, a detective from the Napa 24 County Sheriff’s Department, went with another detective to speak 25 with Petitioner. 26 mentally,” and to find out whether he would give a statement. 27 saw that Petitioner’s hands were swollen, and that his right hand, 28 particularly the knuckle area, was more swollen than the left. They wanted to “see where [Petitioner] was 3 They 1 Crawford and other officers saw Petitioner again approximately two 2 hours later. 3 from his person, and asked if he would be willing to cooperate. 4 Petitioner told them he would not cooperate and that he would fight 5 the officers to stop them from collecting evidence. 6 handcuffed Petitioner, and he struggled as they undressed him and 7 collected evidence. 8 killing Wagner. 9 They told Petitioner they wanted to collect evidence They told Petitioner he was under arrest for DNA analysis revealed that the blood on Petitioner’s sweat 10 United States District Court For the Northern District of California The officers pants and shirt had come from Wagner. 11 shoe was his own. 12 C. Petitioner’s Prior Dealings with Wagner 13 The blood on Petitioner’s A patient at Napa State Hospital, Canada Coburn, testified 14 that she had bought drugs from Petitioner many times. Petitioner 15 sold marijuana cigarettes for ten dollars cash, or twenty dollars 16 credit. 17 marijuana cigarette from Petitioner without paying. 18 Petitioner told Wagner he had “better pay up[,] fool.” 19 days before Wagner was killed, Coburn spoke with Wagner on the 20 telephone. 21 could not pay Petitioner what he owed for the marijuana. 22 then handed the telephone to Petitioner, who told Coburn that 23 Wagner had “fucked up and that he needed to pay up,” and that 24 something was going to happen to Wagner because he could not pay 25 what he owed. 26 had “made his own bed” and “had to lay in it.” 27 that Wagner received the marijuana from Petitioner, Coburn had 28 noticed Petitioner becoming more violent. Several weeks before Wagner’s death, Wagner obtained a At the time, About three Wagner told Coburn he feared for his life because he Wagner When Coburn protested, Petitioner told her Wagner 4 Around the time She thought he “wasn’t 1 really thinking straight, he was really religious and really 2 paranoid.” 3 The day before Wagner died, Petitioner told his friend Rena Hess, another patient at the hospital, that he was upset about not 5 getting his money from Wagner and that Wagner “was going to be 6 squashed that night if he didn’t get his money.” 7 Petitioner told Hess something to the effect that he was going to 8 “take care of the situation, that he was going to . . . do 9 something to him, basically just kill him.” In that conversation, 10 United States District Court For the Northern District of California 4 Petitioner told Hess he was hearing voices. When Hess spoke with 11 Petitioner after he had been arrested, Petitioner initially told 12 her he had killed Wagner, but the next day he indicated he had not 13 been serious. 14 having killed Wagner. That evening, At one point, Petitioner told her he felt bad about 15 One or two days before Wagner’s death, Petitioner told another 16 patient, Forrest Kendrid, that he was upset about Wagner not paying 17 him back and that Wagner had to be “dealt with” (which Kendrid 18 testified was slang for killing), or that Petitioner was “going to 19 kill that punk mother fucker,” and that Wagner had to be made an 20 example. 21 refused, saying “it’s the principle of the thing.” 22 D. Petitioner’s Mental State 23 Kendrid offered to pay the debt himself, but Petitioner At trial, Petitioner did not take the position that he had 24 not killed Wagner. 25 mental illness, he did not form the intent and mental state 26 necessary for murder. 27 evidence that he was required to take antipsychotic medication at 28 the time of Wagner’s death. Instead, Petitioner argued that because of his In his defense, Petitioner presented A quarterly evaluation of Petitioner 5 1 in 2002 indicated that he was not ready to be released to the 2 community because he was not totally in remission. 3 residents testified that Petitioner had been in fights with two 4 other patients, James Foster and Robertson, during April 2002, and 5 one patient had observed that Petitioner had said odd things and 6 appeared “tripped out” or “psychotic” in the days before those 7 fights. 8 death, Petitioner yelled about God in a manner the resident could 9 not understand, behaved bizarrely and spoke in a disjointed Other hospital A resident testified that a few days before Wagner’s United States District Court For the Northern District of California 10 fashion. 11 up all night in his room, praying and pacing, and on at least one 12 occasion, a nurse saw him appearing agitated and delusional. 13 psychiatric social worker saw Petitioner in a seclusion room in 14 five-point restraints on April 8, 2002, something that is usually 15 done after an assault. 16 him; Petitioner did not want to talk, but showed no signs of 17 internal stimuli or delirium. 18 April 24, 2002, Petitioner was under constant in-sight observation, 19 which is used when a patient is a danger to himself or others. 20 until Wagner’s death or the day before it, he was being observed at 21 frequent intervals. 22 Wagner’s death, Petitioner refused his medications. 23 had asked him to cooperate in taking his medications, but had not 24 forced him to do so. 25 of April 29, 2002, to reduce the chances of his “cheeking” them, or 26 failing to swallow them and throwing them out later. 27 28 In the days before Wagner’s death, Petitioner would stay A She tried to discuss one of the fights with Between approximately April 16 and Up On one or both of the two days preceding Staff members His medications had been ordered “crushed” as Dr. Bruce Victor, a psychiatrist who testified as an expert witness on Petitioner’s behalf, was of the opinion that Petitioner 6 1 suffered from chronic paranoid schizophrenia, with polysubstance 2 abuse and antisocial personality disorder, and that Petitioner’s 3 condition may have been exacerbated by the use of methamphetamine. 4 Victor also testified that medications are available to calm the 5 symptoms of schizophrenia, and that withdrawal from the medications 6 can cause agitation and sleeplessness. 7 Petitioner’s April 2002 assaults on other patients, there was 8 evidence that Petitioner had experienced command hallucinations, in 9 one instance through a wall. In both instances of Petitioner had also been increasingly United States District Court For the Northern District of California 10 preoccupied with religion and had been praying fervently, in a way 11 that was not characteristic of his behavior when his mental state 12 was healthier. 13 given him a psychotic reason for killing Wagner, and in fact had 14 denied having killed him. 15 not heard voices regarding Wagner. 16 Victor also testified that Petitioner had never Petitioner had also told Victor he had Dr. Kevin Kappler, a psychologist at Napa State Hospital, 17 testified for the prosecution. 18 treatment team. During 2002, Petitioner did not cooperate with his 19 treatment plan. Petitioner refused medications, refused to go to 20 therapy groups and sometimes refused to meet with his treatment 21 team. 22 illness. 23 request morphine instead. 24 Wagner, Petitioner told Kappler he did not want to be in the 25 hospital, that he was “a felon in between crimes” and that he would 26 rather be in jail, where he could get better drugs. 27 signs of delusions, and Petitioner did not tell him of any 28 hallucinations. Kappler was part of Petitioner’s Kappler believed Petitioner might be feigning his mental Petitioner would refuse his psychotropic medications and Sometime in the months before killing 7 Kappler saw no 1 Dr. Madeline Andrew, a forensic psychiatrist, testified as an 2 expert witness for the prosecution. 3 diagnosis of Petitioner. 4 “cheek” his medications, Andrew believed the medical records showed 5 that Petitioner had generally been ingesting them. 6 that crushing medications was effective in preventing a patient 7 from cheeking medications. 8 stops taking medication, it can take some time for the medication 9 to be cleared out of the body, and symptoms may not recur for days, She agreed with Victor’s Although Petitioner had been trying to She testified She also testified that when a patient United States District Court For the Northern District of California 10 weeks or even months. 11 two or three doses of medication on May 1 and 2, 2002, Andrew did 12 not believe the missed doses significantly affected the level of 13 medication in his blood. 14 Petitioner’s sleep patterns was voluntary, and that he preferred to 15 sleep during the day and be awake at night. 16 Although Petitioner seemed to have missed She believed the disturbance in Andrew also testified about the results of drug tests on 17 Petitioner. 18 cocaine. 19 had a positive drug screen for phenobarbital, a barbiturate, in 20 March 2002; a positive test for amphetamine, methamphetamine and 21 phenobarbital April 9, 2002, after he had assaulted two other 22 patients; and another positive test for phenobarbital on April 16, 23 2002. 24 that time until April 24, when he was reduced to fifteen-minute 25 checks. 26 minutes, and those observations were discontinued on May 1. 27 screen on May 3, 2002, after Petitioner had been arrested for 28 killing Wagner, was negative for all drugs. In January 2002, Petitioner tested positive for In February 2002, he tested negative for all drugs. He Petitioner was placed on constant in-sight observation from On April 26, the observations were reduced to every thirty 8 A Although Petitioner 1 was diagnosed in April with phenobarbital withdrawal, which can 2 cause behavioral changes, agitation, anxiety, paranoia and 3 delusions or hallucinations, Andrew concluded that symptoms of 4 withdrawal had ended by April 24, 2002, at the latest. 5 part on Petitioner’s physical symptoms during April, including 6 elevated blood pressure and heart rate, Andrew believed that the 7 symptoms Petitioner experienced in April, at the time he was put in 8 restraints, were predominantly due to barbiturate withdrawal, 9 rather than to his schizophrenia. Based in Petitioner’s records indicated United States District Court For the Northern District of California 10 to Andrew that his condition was generally improving up until the 11 time of the killing. 12 schizophrenia and antisocial personality disorder are capable of 13 thinking rationally at times and of planning and carrying out 14 crimes. 15 E. Sanity Phase of Trial Andrew testified that people with paranoid 16 On September 8, 2005, the jury found Petitioner guilty of 17 first degree murder, and the sanity phase of the trial ensued. 18 evidence from the guilt phase was admitted in the sanity phase. 19 Victor testified again for Petitioner. 20 documents from Napa State Hospital, Atascadero State Hospital, 21 California Medical Facility at Vacaville, the Napa County jail and 22 the evaluations and reports of various doctors indicated that 23 Petitioner had a history of paranoid schizophrenia, psychosis and 24 polysubstance abuse, and that Petitioner had been arrested in 1999 25 for an unprovoked attack committed in a psychotic state under the 26 delusional belief that the victim intended to harm Petitioner’s 27 family. 28 an agitated way in a parking lot, and his psychiatric records All Victor’s review of Before the 1999 attack, Petitioner had been seen pacing in 9 1 indicated he had been hearing voices and responding to internal 2 stimuli. 3 late 2000, after Petitioner had been found not guilty by reason of 4 insanity, the dosage of his antipsychotic medication was decreased, 5 and his behavior and thought processes deteriorated, necessitating 6 a re-increase in dosage. 7 death, at a time when Petitioner was abusing drugs and his 8 antipsychotic medications were interrupted, his behavior 9 deteriorated, and he made unprovoked attacks on inmates. Records from Atascadero State Hospital indicated that in In April 2002, the month before Wagner’s In one of United States District Court For the Northern District of California 10 those attacks, while in a psychotic state, Petitioner attacked a 11 peer who was lying in bed. 12 indicated that, at the time he killed Wagner, Petitioner had not 13 taken any medication for a little over forty hours, and Victor was 14 of the opinion that as a result, the level of medication that 15 protected Petitioner from psychosis had dropped drastically. 16 result, Petitioner’s delusions would have become worse, he would 17 misperceive events, and his behavior would get out of control. 18 addition, Petitioner had been using methamphetamine during April 19 2002, and Victor testified that those drugs could still have been 20 affecting Petitioner at the time of the murder. 21 Petitioner’s expressed motivation to kill Wagner-–retribution for 22 an unpaid drug debt-–to be consistent with insanity. 23 testified that Petitioner’s explanation of how blood got onto his 24 clothing did not contradict a conclusion that he was insane, 25 explaining that people in psychotic states can come up with 26 explanations that they believe are rational. 27 Petitioner’s later inconsistent accounts of events did not indicate 28 that Petitioner was not psychotic at the time he killed Wagner, and Victor’s review of Petitioner’s records 10 As a In Victor considered Victor also In Victor’s opinion, 1 in fact it was likely that his accounts would become inconsistent 2 as he had more aggressive antipsychotic treatment. 3 that people with paranoid schizophrenia often have a “flat affect,” 4 as Petitioner did after Wagner was killed. 5 saw Petitioner on April 24, 2002, had noted that Petitioner was not 6 suffering hallucinations or delusions, in the ensuing days 7 Petitioner had talked about his medication being poisoned, had been 8 religiously preoccupied and had been pacing in an agitated manner 9 the night before the murder, indicating decreased control over his Victor noted Although a doctor who United States District Court For the Northern District of California 10 paranoia. 11 understood the nature and quality of his acts when he killed 12 Wagner, but that he was probably hallucinating and delusional at 13 the time he did so, to the extent that he did not know the 14 difference between right and wrong. 15 Victor was of the opinion that Petitioner most likely Victor testified on cross-examination that Petitioner had told 16 him in May 2005--at a time he showed signs of psychosis--that 17 everyone had a right to live, and that at the time Petitioner 18 understood that it was morally wrong to take another person’s life. 19 In the interview, Petitioner told Victor that he did not have any 20 idea how Wagner had died, he did not give a psychotic explanation 21 for the killing and he said he had never been a recreational drug 22 user. 23 Dr. Gregory Sokolov, a court-appointed psychiatrist, testified 24 for the prosecution. 25 he had used marijuana, methamphetamine and crack cocaine at Napa 26 State Hospital, and that he had made $200 to $300 a day selling 27 items to other patients. 28 up to the killing, he was intoxicated, “drugged out” and not “in In a 2005 interview, Petitioner told Sokolov Petitioner said that in the days leading 11 1 his right mind,” but denied having killed Wagner. 2 with the diagnoses Petitioner had received of paranoid 3 schizophrenia, polysubstance dependence and antisocial personality 4 disorder. 5 not psychotic, in which they do not have acute mental symptoms. Sokolov agreed People with schizophrenia have periods in which they are 6 Sokolov reviewed a test for malingering that Petitioner had 7 taken in September 2002, and concluded Petitioner was faking his 8 psychotic symptoms. 9 one doctor in the jail in 2003 had also concluded Petitioner was Two other court-appointed psychologists and United States District Court For the Northern District of California 10 malingering, or exaggerating his psychiatric symptoms. 11 not think Petitioner was delusional when he killed Wagner. 12 based his opinion on the fact that two days before the murder, 13 Petitioner’s own psychiatrist noted that Petitioner was doing well 14 and having no behavioral problems and that two days after the 15 murder, jail workers had said Petitioner was “oriented [and] 16 manipulative,” with no mental health problems. 17 interview with Petitioner, Petitioner did not show any delusional 18 beliefs or paranoia toward Wagner, and Petitioner told Sokolov he 19 was not hearing voices that night and had slept through the night. 20 Sokolov did not believe pacing the floor the night before the 21 murder was a psychotic symptom. 22 right from wrong at the time of the killing, based on the facts 23 that Petitioner had given a false explanation for the blood on his 24 clothing, he had not been having delusions and could therefore 25 distinguish right from wrong and he had given conflicting 26 explanations of events, also indicating that he was not operating 27 under delusional beliefs and that he understood what he had done 28 was wrong. Sokolov did Sokolov In Sokolov’s Sokolov believed Petitioner knew 12 1 Dr. Stephen Donoviel, a psychologist who had been appointed by 2 the court to evaluate Petitioner’s sanity, also testified as an 3 expert witness for the prosecution. 4 in 2005, Petitioner told Donoviel he knew nothing about the murder. 5 According to Petitioner, he had gone to sleep and “woke up” when he 6 was being taken down the hall. 7 Wagner was his best friend at the hospital, denied having 8 threatened to harm Wagner because of the drug debt and denied 9 selling drugs. When he interviewed Petitioner Petitioner told Donoviel that Petitioner said he had attacked two other patients United States District Court For the Northern District of California 10 in April 2002 to “teach them a lesson” because they had been “bad 11 mouthing his business,” which he said involved selling candy and 12 coffee. Petitioner told Donoviel he was as “mean as a rattle 13 snake.” Petitioner also said that he knew that harming or killing 14 someone was morally, legally and religiously wrong. 15 review of Petitioner’s records showed that his physical and mental 16 condition improved over the course of April 2002. 17 Petitioner had begun treatment for an abscess in his arm, which was 18 the result of using intravenous drugs. 19 concerned because Petitioner had not been eating, and petitioned to 20 force feed him. 21 because at that time Petitioner was thinking rationally. 22 April, there were entries in Petitioner’s records indicating he was 23 confused, disoriented and delusional, but those symptoms abated 24 over the course of the month, and Petitioner’s condition had 25 improved by the end of the month. 26 entries indicated that Petitioner had been heard talking on the 27 phone in a cheerful voice and he was “[c]learly oriented,” and 28 Donoviel concluded he was no longer confused. Donoviel’s In late March, The medical staff was The request was denied in the middle of April, 13 Early in Near the end of that time, In Donoviel’s 1 opinion, Petitioner understood the nature and quality of his acts 2 and could distinguish right from wrong when he killed Wagner. 3 On September 16, 2005, the jury found Petitioner was sane when 4 he killed Wagner. 5 twenty-five years to life in state prison. 6 Petitioner appealed his conviction to the California Court of 7 Appeal. 8 the judgment of conviction. 9 a petition for review in the California Supreme Court, which was On October 28, 2005, Petitioner was sentenced to On December 5, 2007, the state appellate court affirmed On January 15, 2008, Petitioner filed 10 United States District Court For the Northern District of California On October 6, 2006, denied on March 26, 2008. 11 habeas petition on September 17, 2008. 12 Petitioner filed the instant federal LEGAL STANDARD 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A federal court may entertain a habeas petition from a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” U.S.C. § 2254(a). 28 Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). 28 U.S.C. A decision is contrary to clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts 14 1 materially indistinguishable from those in a controlling case, but 2 nonetheless reaches a different result. 3 1062, 1067 (9th Cir. 2003). 4 application of federal law if the state court identifies the 5 correct legal principle but unreasonably applies it to the facts of 6 the prisoner’s case. 7 Clark v. Murphy, 331 F.3d A decision is an unreasonable Id. The only definitive source of clearly established federal law 8 under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as 9 of the time of the relevant state court decision. United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 Williams v. Taylor, 529 U.S. 362, 412 (2000). To determine whether the state court’s decision is contrary to, or involved an unreasonable application of, clearly established law, a federal court looks to the decision of the highest state court that addressed the merits of a petitioner’s claim in a reasoned decision. Cir. 2000). LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th In the present case, the only state court to address the merits of Petitioner’s claims is the California appellate court on direct review. 19 DISCUSSION 20 21 Petitioner raises four claims. First, he alleges that the 22 trial court erred by admitting statements he made to officers at 23 the mental hospital because the statements were made in violation 24 of Petitioner’s rights under Miranda v. Arizona, 384 U.S. 436 25 (1966). 26 not sua sponte ordering a hearing on Petitioner’s competence to 27 stand trial. 28 impermissibly shifted the burden of proof in instructing the jury Second, Petitioner claims that the trial court erred by Third, Petitioner asserts that the trial court 15 1 regarding the effect of Petitioner’s mental disorder on the 2 requisite mental state for murder. 3 the trial court committed instructional error during the sanity 4 phase of his trial. 5 I. 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 Finally, Petitioner claims that Miranda Violation Petitioner claims that his conviction was based on “non- Mirandized” statements he gave to officials at Napa State Hospital and that it was error for the trial court to admit these statements. Petitioner does not specify what statements should have been excluded from evidence. A review of Petitioner’s opening brief on appeal, however, identifies two statements. Ex. C at 10. First, when one of the investigating officers asked Petitioner how Petitioner had cut his hand, Petitioner stated that he had punched a wall in the courtyard the day before. Id. Second, when the officer asked Petitioner how Petitioner had gotten blood on his knee, Petitioner stated that he had fallen down in the courtyard. Id. 18 19 20 21 22 23 24 25 26 27 Petitioner claims that these two statements, which were given without a Miranda warning, contradicted his guilt-phase defense that he was acting under a schizophrenic episode, because a jury could have inferred that the explanations showed a consciousness of guilt. Id. at 29. Further, Petitioner asserts the statements contradicted his insanity defense because Dr. Sokolov used the statements to opine that Petitioner knew right from wrong insofar as he knew enough to come up with an excuse to hide his behavior. Id. at 29-30. 28 16 1 A. State Appellate Court Opinion Addressing Petitioner’s Claim 2 The state appellate court did not decide whether Petitioner’s 3 4 5 6 7 8 9 Miranda rights were violated. Instead the court rejected the claim on the grounds that admission of the statements was harmless beyond a reasonable doubt under the federal prejudice standard. People v. Gore, 2007 WL 4248859 at *9-11 (citing Arizona v. Fulminante, 499 U.S. 279, 313 (1991)). B. Analysis of Petitioner’s Claim Under AEDPA United States District Court For the Northern District of California 10 Miranda requires that a person subjected to custodial 11 interrogation be advised that he has the right to remain silent, 12 that statements made can be used against him, that he has the right 13 to counsel and that he has the right to have counsel appointed. 14 See Miranda, 384 U.S. at 444. 15 custodial interrogation, which occurs whenever law enforcement 16 officers question a person after taking that person into custody or 17 otherwise significantly deprive a person of freedom of action. 18 Miranda protections are triggered “only where there has been such a 19 restriction on a person’s freedom as to render him ‘in custody.’” 20 Stansbury v. California, 511 U.S. 318, 322 (1994) (citing Oregon v. 21 Mathiason, 429 U.S. 492, 495 (1977)). 22 “a reasonable person [would] have felt he or she was not at liberty 23 to terminate the interrogation and leave,” as judged by the 24 totality of the circumstances. 25 112 (1995). 26 statements in violation of Miranda “had a substantial and injurious 27 effect or influence in determining the . . . verdict.” These warnings must precede any Id. “[I]n custody” requires that Thompson v. Keohane, 516 U.S. 99, Habeas relief should be granted if the admission of 28 17 Juan H. v. 1 Allen, 408 F.3d 1262, 1271 n.9 (9th Cir. 2005)(quoting Brecht v. 2 Abrahamson, 507 U.S. 619, 637 (1993)). 3 The Court need not decide whether Petitioner’s Miranda rights 4 were violated because Petitioner has not shown that the statements 5 had a substantial and injurious effect on the jury’s verdict. 6 noted by the appellate court, in both phases of Petitioner’s trial, 7 evidence of guilt was overwhelming, and the two statements 8 regarding Petitioner’s injuries were only a small part of the 9 prosecution’s case. United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As While Petitioner is correct that Dr. Sokolov used the statements to opine that Petitioner knew right from wrong (Ex. A, vol. 1 at 188), there was plentiful other evidence of Petitioner’s guilt and state of mind. blood on his clothing. For example, Petitioner had Wagner’s Ex. B at 3850, 3884, 4388-90. In the days leading up to the murder, Petitioner had told numerous people that he was going to harm Wagner due to the debt Wagner owed Petitioner. Id. at 3899, 3911-13, 3916, 4059-61, 4305-06. Petitioner had stated on the evening before Wagner’s death that he would kill Wagner. Id. at 4305-08, 4312. Testing showed that Petitioner’s blood did not contain any drugs after or during the attack on Wagner. Id. at 4473-74. The evidence also showed that Petitioner was calm and cooperative after Wagner was discovered dead and that he had an apparent understanding of his surroundings and the staff’s directions. Id. at 3689, 3851-53, 3866, 3868-73, 3888, 3890-91, 3923-24, 3956-58, 4513-14, 4522, 4525. Petitioner responded appropriately to questions and commands and did not appear to have any psychotic problems at the time. Id. Dr. Sokolov noted the absence of reported or observed delusions in the 18 1 days before and after the event. 2 187. 3 explanations of the events, which is uncharacteristic of someone 4 operating under a delusional conviction. 5 vol. 1 at 188. 6 Petitioner’s mental state had improved by the end of April 2002. 7 Ex. A, vol. 1 at 185-87; Ex. A, vol. 3 at 52-53. 8 treating psychologist opined that Petitioner was faking mental 9 illness and testified that Petitioner even admitted to malingering. Ex. B at 6714; Ex. A, vol. 1 at Dr. Sokolov also noted that Petitioner made changing Ex. B at 6708-09; Ex. A, The evidence also included reports showing that Petitioner’s United States District Court For the Northern District of California 10 Ex. B at 5293-96. 11 Petitioner was malingering. 12 that Petitioner was not showing withdrawal symptoms at the time of 13 the killing and that Petitioner was being adequately treated for 14 his psychiatric problems. 15 Finally, Petitioner himself reported that he understood right from 16 wrong and knew that it was morally, legally and religiously wrong 17 to kill another person. 18 against Petitioner, the court of appeal reasonably found that there 19 was no resulting prejudice to Petitioner from the admission of the 20 two statements. 21 Other court-appointed psychologists agreed that Id. at 6705-06. Another expert opined Id. at 5329-31, 5336-37, 5353, 5355. Id. at 5824-25. Based on the strong case Accordingly, Petitioner has not demonstrated a reasonable 22 probability that the result of the proceeding would have been 23 different had the statements been excluded. 24 rejection of this claim was neither contrary to, nor an 25 unreasonable application of, federal law. 26 // 27 28 // 19 The state court’s 1 2 II. Competency Hearing Petitioner claims he was denied due process when the trial 3 court failed to order a hearing sua sponte on Petitioner’s 4 competency to stand trial. 5 expressed doubt in Petitioner’s competency under Cal. Penal Code 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 § 1368.3 Ex. B at 303-04. In August 2002, defense counsel The trial court appointed two psychologists to examine Petitioner. Id.; Ex. A, vol. 1 at 21. Both concluded that Petitioner was feigning the nature or degree of his psychotic symptoms. Ex. A, vol. 3 at 14-29; Ex. B at 452. At the request of defense counsel, the trial judge then appointed a psychiatrist to examine Petitioner. 355-56. Ex. A, vol. 1 at 26; Ex. B at The psychiatrist concluded that Petitioner was able to understand the charges against him and assist counsel in presenting a rational defense. Ex. A, vol. 3 at 31-35. In January 2003, the trial court found Petitioner competent to stand trial based on the three expert evaluations. Ex. A, vol. 1 at 42; Ex. B at 555. 17 18 19 20 21 22 On June 28, 2004, Petitioner personally presented a written motion for appointment of new counsel, which was granted based on a breakdown in the relationship between Petitioner and defense counsel. Ex. A, vol. 1 at 107; Ex. B at 1931-32. appointed new defense counsel. The trial court Id. 23 24 25 26 27 28 3 Cal. Penal Code § 1368(b) states in relevant part: If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing. 20 1 Subsequently, in April 2005, Napa County Counsel applied ex 2 parte for an order transferring Petitioner from the Napa County 3 jail to the California Medical Facility in Vacaville (CMF). 4 vol. 1 at 143-44. 5 injured himself by hitting his head against a steel bunk and 6 running headlong into a wall. 7 correctional officers and was refusing to take his psychotropic 8 medications. 9 and medicate Petitioner more effectively than the county jail Ex. A, The application stated that Petitioner had Id. Id. Petitioner had also assaulted County counsel argued that CMF could supervise United States District Court For the Northern District of California 10 could. 11 parte application and notified the court that Petitioner was 12 requesting medical attention. 13 trial court granted the order, and Petitioner was transferred to 14 CMF. 15 Id. Petitioner’s new counsel submitted the issue on the ex Ex. B at 2402. On May 2, 2005, the Ex. A, vol. 1 at 147-49. At a hearing on June 1, 2005, the trial court considered where 16 Petitioner should be housed during trial. 17 Ex. B at 2555-64. 18 Petitioner outside of trial hours each day and told the court that 19 Petitioner “[did] well when he’s taking his meds and when he’s 20 properly medicated.” 21 court to continue housing Petitioner at CMF where Petitioner had 22 resumed taking his medication. 23 continued Petitioner’s housing at CMF but ordered that he be 24 brought to court early on trial mornings. 25 Ex. B at 2563-64. 26 27 28 Ex. A, vol. 1 at 160; Defense counsel expressed a need to confer with Ex. B at 2558. County counsel urged the Id. at 2560. The trial court Ex. A, vol. 1 at 161-62; At the same hearing, Petitioner personally entered a plea of not guilty and not guilty by reason of insanity. 160; Ex. B at 2569. Ex. A, vol. 1 at The prosecution then asked whether defense 21 1 counsel was raising a doubt about Petitioner’s competence to stand 2 trial. 3 The trial judge stated that her review of Dr. Victor’s report did 4 not raise those issue in her mind and that nothing about 5 Petitioner’s conduct in court raised a doubt. 6 After being offered an opportunity to comment further on 7 Petitioner’s competency, defense counsel stated, “I don’t have 8 doubt at this time.” 9 Ex. B at 2577. Defense counsel responded, “I’m not.” Id. Id. at 2577-78. Id. at 2578. Also on June 1, 2005, the trial court appointed Dr. Sokolov United States District Court For the Northern District of California 10 and Dr. Donoviel under Cal. Penal Code § 1027, which requires the 11 trial court to appoint experts to evaluate a plea of insanity. 12 A, vol. 1 at 160; Ex. B at 2575. 13 Petitioner and issued reports in June 2005. 14 182-89; Ex. A, vol. 3 at 42-57. 15 in connection with Petitioner’s plea and not with regard to 16 Petitioner’s competence to stand trial, neither expert suggested 17 that Petitioner was not competent to be tried. 18 notes that both experts opined that Petitioner was sane at the time 19 of the offense. 20 Donoviel indicated that Petitioner cooperated with the interview, 21 was “fully alert and correctly oriented to time, place, person and 22 situation,” showed a good sense of humor and appropriate range of 23 emotions and did not appear to be preoccupied or responding to 24 internal stimuli. 25 that Petitioner cooperated with the interview and said he was 26 pleading insanity on his lawyer’s advice. 27 184. Ex. Both doctors interviewed Ex. A, vol. 1 at While these experts were appointed Id. The Court also Ex. A, vol. 1 at 187-89; Ex. A, vol. 3 at 57. Ex. A, vol. 3 at 54. 28 22 Dr. Dr. Sokolov also indicated Ex. A, vol. 1 at 182, 1 In July 2005, county counsel informed the trial court that the 2 treating psychiatrist at CMF had discharged Petitioner from the 3 acute psychiatric ward. 4 ordered Petitioner returned to county jail. 5 91; Ex. B at 2705-06. 6 Ex. A, vol. 1 at 208. 7 Ex. A, vol. 1 at 176-81. The trial court Ex. A, vol. 1 at 190- Jury selection began on August 22, 2005. Petitioner claims that his April 2005 conduct-–resulting in 8 his transfer to CMF-–presented evidence of a change in his 9 psychiatric condition, such that the trial court should have United States District Court For the Northern District of California 10 reconsidered its earlier competency determination and sua sponte 11 ordered a competency hearing. 12 13 14 A. State Appellate Court Opinion Addressing Petitioner’s Claim The state appellate court analyzed Petitioner’s claim under 15 Cal. Penal Code § 1368, which requires the court to order a 16 competency hearing if “a doubt arises in the mind of the judge as 17 to the mental competence of the defendant” or “[i]f counsel informs 18 the court that he or she believes the defendant is or may be 19 mentally incompetent.” 20 claim, noting that Petitioner’s own counsel expressed that he did 21 not doubt Petitioner’s competence and noting that Petitioner was 22 again taking his medications by the time of trial. 23 2007 WL 4248859 at *9. 24 in the reports of the appointed experts nor in the report of the 25 defense expert indicated that Petitioner would be incompetent when 26 properly medicated. 27 suggesting Petitioner’s inability to understand the proceedings 28 against him or to consult rationally with his lawyer. The appellate court rejected Petitioner’s People v. Gore, The appellate court also noted that nothing Id. The court found no substantial evidence 23 Id. 1 B. Analysis of Petitioner’s Claim Under AEDPA 2 The test for competence to stand trial is whether the 3 defendant demonstrates the ability “‘to consult with his lawyer 4 with a reasonable degree of rational understanding’ and has ‘a 5 rational as well as factual understanding of the proceedings 6 against him.’” 7 Dusky v. United States, 362 U.S. 402, 402 (1960)). 8 requires a trial court to order a psychiatric evaluation or conduct 9 a competency hearing sua sponte if the court has a good faith doubt Godinez v. Moran, 509 U.S. 389, 396 (1993)(quoting Due process United States District Court For the Northern District of California 10 concerning the defendant’s competence. 11 375, 385 (1966). 12 arises if “‘a reasonable judge, situated as was the trial court 13 judge whose failure to conduct an evidentiary hearing is being 14 reviewed, should have experienced doubt with respect to competency 15 to stand trial.’” 16 2010) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 17 1976)). 18 conducted a competency hearing, we may consider only the evidence 19 that was before the trial judge.” 20 1112, 1119 (9th Cir. 2008). 21 irrational behavior, his demeanor at trial, and any prior medical 22 opinion on competence to stand trial are all relevant in 23 determining whether further inquiry is required,’ and ‘one of these 24 factors standing alone may, in some circumstances, be sufficient.’” 25 Maxwell, 606 F.3d at 568 (quoting Drope v. Missouri, 420 U.S. 162, 26 180 (1975)). 27 28 Pate v. Robinson, 383 U.S. A good faith doubt about a defendant’s competence Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. “In reviewing whether a state trial judge should have McMurtrey v. Ryan, 539 F.3d “‘[E]vidence of a defendant’s Here, it is undisputed that Petitioner had a history of psychiatric disorders, including court-ordered time at a state 24 1 mental hospital. 2 Petitioner was previously found not guilty by reason of insanity 3 for a 1999 assault. 4 n.2. 5 Petitioner incompetent to stand trial. 6 opinions gathered for Petitioner’s 2005 trial on the underlying 7 offense, including that of the defense expert, suggested that 8 Petitioner was incompetent. 9 at 36-41, 42-57. Ex. B at 6604-17. Further, it is undisputed that Id.; People v. Gore, 2007 WL 4248859 at *1, The record shows no prior medical opinion, however, finding And none of the expert Ex. A, vol. 1 at 182-89; Ex. A, vol. 3 The three psychological and psychiatric reports United States District Court For the Northern District of California 10 ordered by the trial court in 2002 all concluded that Petitioner 11 was competent. 12 Dr. Donoviel and Dr. Sokolov, issued two months before trial, 13 showed that Petitioner was cooperative and capable of understanding 14 their interview questions. 15 182, 184. 16 the offense. 17 Further, defense counsel denied having any doubt as to Petitioner’s 18 ability to stand trial and stated that Petitioner did well when 19 properly medicated. 20 psychiatrist reported that Petitioner was back on his medication in 21 July 2005. 22 she also did not notice anything out of the ordinary. 23 2577-78. 24 throughout the proceedings, the expert reports and the statements 25 of county counsel and defense counsel were the only evidence 26 considered by the trial court and, therefore, the only evidence 27 this Court is to consider in determining whether the trial court 28 should have ordered a competency hearing. Ex. A, vol. 3 at 14-29, 31-35. Later reports by Ex. A, vol. 3 at 54; Ex. A, vol. 1 at And both opined that Petitioner was sane at the time of Ex. A, vol. 1 at 187-89; Ex. A, vol. 3 at 57. Ex. B at 2577-77. Ex. A, vol. 1 at 180-81. The CMF treating The trial judge noted that Ex. B at It appears that the Petitioner’s demeanor and behavior 25 See McMurtrey, 539 F.3d 1 at 1119; Amaya-Ruiz v. Stewart, 121 F.3d 486, 493 (9th Cir. 1997). 2 A review of this evidence shows no reason why the trial court 3 should have had a good faith doubt regarding Petitioner’s 4 competence. 5 See Maxwell, 606 F.3d at 568. The Ninth Circuit issued its recent opinion in Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) subsequent to the briefing in 7 this case. 8 where the trial court failed to conduct a second competency hearing 9 despite substantial evidence that the petitioner’s psychiatric 10 United States District Court For the Northern District of California 6 condition had worsened following an initial competency finding. 11 This Court has considered the opinion and finds it distinguishable 12 from the present case. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Maxwell granted federal habeas relief to a petitioner In Maxwell, the petitioner was ordered to undergo a competency determination after defense counsel expressed doubt about his ability to stand trial. Id. at 564. Four of five psychiatrists concluded that Maxwell was malingering, or feigning a psychosis, while the fifth concluded that Maxwell was indeed incompetent to stand trial. Id. at 565. The trial judge subsequently found Maxwell competent and reinstated criminal proceedings. Id. By the time trial commenced thirteen months later, Maxwell’s behavior had become uncontrollable, and defense counsel repeatedly alerted the court that Maxwell’s condition was worsening and that communication with Maxwell was severely strained. Id. at 565. During pretrial proceedings, Maxwell made noises and blurted out obscenities. at 569. He refused to take his medication and had assaulted another inmate with a knife. Id. Following one physical and verbal outburst in the courtroom, the trial judge found that Maxwell posed a danger and had him removed. 26 Id. at 570. As a Id. 1 result, the trial proceeded in Maxwell’s absence. 2 Halfway through the trial, Maxwell attempted suicide with a razor 3 blade and was placed by hospital staff on a seventy-two hour 4 “psychiatric hold” or detention that later was extended to a two- 5 week hold. 6 light of the psychiatric holds, “[n]o reasonable judge . . . could 7 have proceeded with the trial without doubting Maxwell’s competency 8 to stand trial.” 9 Id. at 570-71. Id. at 565. The Ninth Circuit concluded that, in Id. at 573. The Ninth Circuit also observed that, had the trial court United States District Court For the Northern District of California 10 conducted an additional competency hearing, it “would have 11 discovered further information suggesting Maxwell’s incompetence,” 12 specifically the reports from the psychiatric holds explicitly 13 finding that Maxwell was “actively psychotic” and that he had been 14 “involuntary [sic] administered heavy doses of [an] antipsychotic 15 drug.” 16 first relied upon by the trial judge, which concluded Maxwell had 17 been malingering, was “thirteen months old,” “was itself based on 18 aging psychiatric evaluations that were, by the time of Maxwell’s 19 trial, eighteen months old” and that Maxwell’s condition had 20 deteriorated significantly in the intervening time. 21 22 23 24 25 26 27 28 Id. Additionally the appellate court noted that the report Id. at 575. Here, in contrast, defense counsel did not voice continuing concern about Petitioner. While the failure of a defendant or his attorney to request a competency hearing is not a factor in determining whether there is a good faith doubt in the defendant’s competency, Maxwell, 606 F.3d at 574, this was not a “failure to request” case. As discussed above, the trial judge specifically inquired of defense counsel whether there was any need for a second competency determination, and defense counsel specifically stated 27 1 that he did not doubt Petitioner’s competence to stand trial. 2 Williams v. Woodford, 384 F.3d 567, 607-610 (9th Cir. 2004) 3 (affording significant weight to defense counsel’s firm belief that 4 defendant was competent and, in the absence of “persuasive” 5 evidence to the contrary, concluding that defendant did not 6 establish a violation of his right not to be tried and convicted 7 while incompetent); see also United States v. Clark, 617 F.2d 180, 8 186 n.11 (9th Cir. 1980) (“The fact that [the defendant’s] attorney 9 apparently considered him competent is significant evidence that he United States District Court For the Northern District of California 10 11 See was competent.”). Further, as discussed above, defense counsel also informed the 12 trial judge that Petitioner did well when taking his medication 13 (Ex. B at 2558), and the record shows that Petitioner was back on 14 medication at the time of his trial and well enough to be returned 15 to county jail. 16 that defense counsel was communicating directly with Petitioner 17 during trial. 18 633 F.3d 852, 860 (2011) (defense counsel, while agreeing that 19 client was difficult to control, informed the court that they could 20 ensure his competence by taking measures such as getting him proper 21 medication or communicating with him directly). 22 appears from the record that Petitioner was coherent in his brief 23 colloquies with the court (Ex. B at 2568-69, 2617), and did not 24 disrupt proceedings. 25 nothing in Petitioner’s demeanor raised a doubt to the court. 26 B at 2577-78. 27 trial court to conclude there was not enough evidence before it to 28 raise a doubt about defendant’s competence where defendant was Ex. A, vol. 1 at 176-81. Ex. B at 2558-59, 2563-64. The record also shows See Stanley v. Culler, Finally, it The trial judge noted at one point that Ex. See Stanley, 633 F.3d at 861 (not unreasonable for 28 1 coherent in his testimony and colloquies with the court, and state 2 court judges indicated his demeanor in courtroom did not raise a 3 doubt about his competency). 4 Nor does the record suggest there were later findings by 5 treatment staff that would have permitted the inference Petitioner 6 was incompetent, in contrast to Maxwell. 7 later evaluations found that Petitioner was cooperative and 8 communicative and opined that Petitioner was sane at the time of 9 the offense. Indeed, as noted above, And Petitioner’s discharge papers from CMF described United States District Court For the Northern District of California 10 him as “calm, cooperative, pleasant” and reported that he “denie[d] 11 hallucinations or suicidal intent.” 12 evaluation presented by Petitioner’s own psychological expert 13 nowhere suggested that Petitioner would be unable to stand trial. 14 There is nothing in the record to show that Petitioner could not 15 assist counsel or understand the proceedings against him at the 16 time of trial. 17 does not mandate federal habeas relief here. 18 of the highly deferential standard this Court must give to the 19 state court’s factual finding, see Stanley, 633 F.3d at 859, the 20 state court’s decision rejecting this claim was not contrary to, or 21 an unreasonable application of, clearly established federal law. 22 28 U.S.C. § 2254(d). 23 Ex. A, vol. 1 at 181. Godinez, 509 U.S. at 396. The Accordingly, Maxwell Especially in light III. Jury Instruction On Effect Of Mental Disorder On Mental State 24 25 26 27 28 Petitioner claims that the trial court erred in its instruction to the jury on the mental state required for first degree murder. Specifically, the trial court instructed the jury with a modified version of CALJIC No. 4.21.1 as follows: 29 1 It is the general rule that no act committed by a person with a mental disorder is less criminal by reason of that condition. Thus in the crime of first degree murder as charged in Count One, or the crime of second degree murder, which is a lesser thereto, the fact that the defendant had a mental disorder is not a defense and does not relieve defendant of responsibility for the crime. However there is an exception to this general rule, namely where a specific intent or mental state is an essential element of the crime. In that event you should consider the defendant’s mental disorder in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. [¶] Thus in the crime of first degree murder charged in Count One or the lesser crime of second degree murder, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crime set forth elsewhere in these instructions. If the evidence shows that a defendant had a mental disorder at the time of the alleged crime you should consider that fact in deciding whether or not defendant had the required specific intent or mental state. If from all the evidence you have a reasonable doubt whether the defendant had a required specific intent or mental state you must find that the defendant did not have that specific intent or mental state. 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 Ex. A, vol. 2 at 430; Ex. B at 5551-52. 19 Petitioner claims that this instruction impermissibly shifted 20 21 22 23 the burden to the defense to prove that Petitioner did not harbor the requisite mental state for first degree murder. A. State Appellate Court Opinion Addressing Petitioner’s Claim 24 The state court of appeal rejected Petitioner’s claim, finding 25 that nothing in the instruction directed the jury to find that 26 Petitioner acted with the intent to kill. People v. Gore, 2007 WL 27 4248859 at *12. To the contrary, the jury was instructed that if 28 it had a reasonable doubt whether Petitioner had the required 30 1 mental state, it must find for the defense. 2 court also noted that the instructions as a whole properly 3 instructed the jury that the prosecution had the burden of proof on 4 each fact necessary to establish guilt. 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 B. Id. The appellate Id. Analysis of Petitioner’s Claim Under AEDPA A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. (1991). See Estelle v. McGuire, 502 U.S. 62, 71-72 To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Id. at 72. The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner does not show how the challenged instruction so infected his trial. The instruction did not require the jury to find that Petitioner acted with specific intent to kill. Rather the instruction directed the jurors to find that he did not have such intent if the jury had a reasonable doubt. Petitioner simply does not show how the instruction shifted, or in any way lessened, the prosecution’s burden to prove Petitioner guilty beyond a reasonable doubt as to each element of the crime, after taking his mental disorder into consideration. Looking at the record as a whole, the instructions given adequately placed the burden on the prosecution. Accordingly, the state court’s denial of this claim was not contrary to, or an unreasonable application of, established federal authority. 31 1 // 2 3 IV. Jury Instruction During Sanity Phase 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Petitioner claims the trial court committed instructional error in the sanity phase of his trial. Specifically, Petitioner challenges the trial court’s use of an instruction requiring Petitioner to prove legal insanity by a preponderance of the evidence. While not specified in his petition, Petitioner’s argument on direct appeal was that his prior adjudication of legal insanity in 1999 should have been presumed to have continued. C at 40-42, 55-56. Ex. While also not stated in the instant petition, Petitioner raised a second argument on direct appeal challenging the trial court’s instruction to the jury on the use of circumstantial evidence. Id. at 57-59. Specifically, the trial court instructed the jury as follows: Each fact which is essential to complete a set of circumstances necessary to establish the defendant’s insanity must be proved by a preponderance of the evidence. In other words, before an inference essential to establish insanity may be found to have been proved by a preponderance of the evidence, each fact or circumstance on which the inference necessarily rests must be proved by a preponderance of the evidence. [¶] Also if the circumstantial evidence permits two reasonable interpretations, one which points to the defendant’s insanity, the other to his sanity, you must adopt the interpretation that points to the defendant’s sanity and reject the interpretation that points to his insanity. If, on the other hand, one interpretation of the evidence appears to you to be reasonable, the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. 27 28 32 1 Ex. B at 6797; Ex. A, vol. 2 at 544 (emphasis added). 2 argued on appeal that the underlined language misstated his burden. 3 Ex. C at 57-59. 4 the same two instructional error claims raised on appeal. 5 A. 6 7 Petitioner The Court will construe the petition as raising State Appellate Court Opinion Addressing Petitioner’s Claim The state appellate court rejected Petitioner’s first claim 8 noting that, under California law, insanity is an affirmative 9 defense to a criminal charge, and a defendant has the burden of United States District Court For the Northern District of California 10 proving it by a preponderance of the evidence. 11 2007 WL 4248859 at *13. 12 that an exception should apply where there has already been a prior 13 finding of insanity. 14 argued that such a prior finding should create a rebuttable 15 presumption of insanity, shifting the burden to the prosecution. 16 Id. at *14. 17 People v. Wolff, 61 Cal. 2d 795, 816-18 (1964), had already 18 considered and rejected such an exception, maintaining with the 19 defendant the burden of proving insanity by a preponderance of the 20 evidence. 21 People v. Gore, The court rejected Petitioner’s argument Id. at *13-14. Specifically, Petitioner The court noted that California case law, specifically Id. The appellate court agreed with Petitioner’s second argument 22 that the instruction on use of circumstantial evidence misstated 23 Petitioner’s burden. 24 instruction was adapted from CALJIC No. 2.01, which informs the 25 jury on how to evaluate circumstantial evidence when determining 26 whether the prosecution has met its burden of proving guilt beyond 27 a reasonable doubt. 28 met its burden where one reasonable interpretation of the evidence Id. at *14-15. Id. The court noted that the In such context, the prosecution has not 33 1 points to innocence. 2 sanity phase, the trial court erroneously raised Petitioner’s 3 burden beyond a preponderance of the evidence. 4 court nonetheless rejected Petitioner’s instructional error claim, 5 finding that the error was harmless. 6 pointed out the overwhelming evidence against Petitioner, including 7 the circumstances of the murder, Petitioner’s own statements and 8 expert opinion that Petitioner knew right from wrong. 9 appellate court also rejected the claim on the basis that the jury Id. But by applying this instruction to the The appellate Id. Id. at *16. The court again Id. The United States District Court For the Northern District of California 10 was elsewhere correctly instructed as to Petitioner’s burden of 11 proof. 12 B. 13 14 15 16 17 18 19 20 21 22 Id. at *17. Analysis of Petitioner’s Claim Under AEDPA As noted above, a challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. Estelle, 502 U.S. at 71-72. A federal due process violation arises only if the instruction rendered the entire trial unfair. Estelle, 502 U.S. at 72. Moreover, the standard for a finding of insanity is a matter of state law and is not of federal constitutional dimension. U.S. 790, 798-99 (1952). Leland v. Oregon, 343 A state law imposing a high burden of proof of insanity, including proof beyond a reasonable doubt, does not violate due process. Id. 23 24 25 26 27 28 Here, given the overwhelming evidence against Petitioner and the instructions as a whole, the appellate court reasonably concluded that any error was harmless. 507 U.S. 619, 637 (1993). See Brecht v. Abrahamson, As detailed above, evidence of Petitioner’s sanity at the time of the murder was substantial. By way of example only, the experts appointed by the trial court both 34 1 opined that Petitioner was sane (Ex. A, vol. 1 at 187-89; Ex. A, 2 vol. 3 at 56-57) and several witnesses testified that Petitioner 3 was cooperative, alert and oriented following the discovery of 4 Wagner’s murder. 5 3890-91, 3923-24, 3956-58, 4513-14, 4522, 4525. 6 court gave the jury other proper instructions on Petitioner’s 7 burden to prove insanity by a preponderance of the evidence. 8 A, vol. 2 at 551, 557, 563. 9 437-38 (2004) (state court reasonably found no due process Ex. B at 3689, 3851-53, 3866, 3868-73, 3888, Further, the trial Ex. See Middleton v. McNeil, 541 U.S. 433, United States District Court For the Northern District of California 10 violation where trial court gave at least three correct 11 instructions on unreasonable self-defense and one admittedly 12 incorrect instruction). 13 the error had a substantial and injurious effect on the verdict. 14 Brecht, 507 U.S. at 623. 15 Accordingly, Petitioner does not show that Based on the above, the state court’s denial of this claim was 16 not contrary to, or an unreasonable application of, established 17 federal authority. 18 CONCLUSION 19 20 21 22 For the foregoing reasons, the Petition for a Writ of Habeas corpus is DENIED. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, 23 a certificate of appealability (COA) under 28 U.S.C. § 2253(c) is 24 GRANTED as to Petitioner’s competency hearing claim. 25 finds that reasonable jurists viewing the record could find the 26 Court’s assessment of this claim “debatable or wrong.” 27 McDaniel, 529 U.S. 473, 484 (2000). 28 to make a substantial showing that any of his other claims amounted 35 The Court Slack v. Because Petitioner has failed 1 to a denial of his constitutional rights or demonstrate that a 2 reasonable jurist would disagree with this Court’s assessment, a 3 COA is DENIED as to all other claims. 4 competency hearing claim does not obviate the requirement that 5 Petitioner file any notice of appeal within thirty (30) days of 6 this order. 7 8 9 United States District Court For the Northern District of California 10 11 The COA on Petitioner’s The Clerk shall terminate any pending motions as moot, enter judgment in favor of Respondent and close the file. IT IS SO ORDERED. 8/15/2011 Dated:________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 4 5 ANTHONY C. GORE, Case Number: CV08-04365 CW Plaintiff, 6 7 CERTIFICATE OF SERVICE v. 8 9 United States District Court For the Northern District of California 10 ROBERT A. HOREL et al, Defendant. / 11 12 13 14 15 16 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 15, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 17 18 19 20 21 22 Anthony Clark Gore F-01081 California Medical Facility P.O. Box 2000 M-229-L Vacaville, CA 95696-2000 23 24 25 Dated: August 15, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 26 27 28 37
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