Fernando Belmontes, Jr. v. Jill L. Brown, Warden, for the California State Prison at San Quentin

а reasonable trier of fact that suade BELMONTES, Jr., immediately Fernando

parties intended substitute Petitioner-Appellant, for the old. It is for a new contract reason that I am satisfied to sum- reverse mary judgment. BROWN, Warden,

Jill L. for the Cali Quent fornia State Prison at San Ill in,* Respondent-Appellee. explicit in California lawmakers were re- of cording agreements their disfavor oral No. 01-99018.

purporting modify written contracts Appeals, United States Court of we situations like the one consider: where Ninth Circuit. parties contemplated such a scenario required any expressly changes to be July writing. reading court’s broad of potential novation has the to undermine statutory force California law. Ac- opinion court,

cording to the a nova- quite

tion looks similar to a modification or

unsatisfied accord. I am not convinced an interpretation such is consistent legisla-

with the intent the California

ture, interpreting case law California state

law, principles. or contract general

California law indicates that Fanucchi parties

first prove must intended to

extinguish prior agreement and not

simply modify it. But that is not enough.

Fanucchi then must also demonstrate that extinguish

it was intent United’s

prior upon agreement acceptance Fan- to fulfill promise

ucchi’s its obli- new performance (i.e.,

gations, upon that a accord).

novation occurred and an presumption accord, is in favor

anot novation. mind, principles

With these I concur judgment

in the of the court. * Quentin. Jill predeces- L. Brown is substituted her fornia State Prison San See Fed. sor, Woodford, 43(c)(2). Jeanne S. R.App. as Warden of Cali- P. 11Q0 ordinary rules of constitu

plication of AEDPA, if interpretation. Under tional n reasonably court! determines state" correctly governing facts and identifies standard, grant can a federal court federal if only corpus writ of habeas state CA; Valley, Multhaup, Mill S. Eric Sacramento, CA, objectively for in unreasonable its Wing, H. court was Christopher petitioner-appellant. clearly-established Supreme application is not the case when law. Such Court Attorney Johnson, Gen- Deputy Mark A. Sacramento, CA, not In such circum eral, respondent- apply. for the AEDPA does appellee. stance, legal simply we resolve the issue ‘ merits, ordinary rules. on the under AEDPA recognize we “that

Because in habeas wrought changes substantial O’SCANNLAIN, REINHARDT, Before law,” Taylor, Williams PAEZ, Judges. Circuit n. L.Ed.2d 389 (2000) (plurality opinion), we must be care Judge REINHARDT. Opinion AEDPA’s deferential ful not to confuse dissenting part in concurring Opinion pre-AEDPA with the standard of review by Judge O’SCANNLAIN. part in and, other employ we standard REINHARDT, Judge. Circuit points Williams cases. As pre-AEDPA out, clear, it AEDPA is is anything about PREAMBLE I. application of feder that “an unreasonable 15, 20.03, opinion we filed July On incorrect, appli from an al law is different holding there reasonable this case law.” Id. at cation federal of instructional that as result probability constitu- here is not the issue error the did consider penalty mitigating evidence tionally confronted in AEDPA issue that Court court to the district remanded phase. We court en Payton, but whether the state corpus of a writ of habeas the issuance application in an “incorrect” of fed gaged Belmontes v. vacating the death sentence. law. eral Cir.2003). (9th Woodford, 350 F.3d 861 held Supreme Court Payton, timely Supreme petitioned The warden objectively court was the state March for a writ of certiorari. On Court concluding the use of unreasonable 28, 2005, granted Court Supreme (k) did not unconstitu- factor California’s writ, and remanded judgment, our vacated light considering in tionally jury the prevent “for further consideration the case -, Payton, v. of Brown mitigating evidence. postcrime relevant (2005).” 1432, 161 L.Ed.2d 33 S.Ct. hold, however, that the Payton did — Belmontes, -, Brown con- was itself challenged factor use of (2005) (mem.). 1697, 161 L.Ed.2d 518 unconstitutional, as a or either stitutional consideration, we conclude careful Upon Payton, in fact or law. Unlike matter of holding our Payton not affect does required to determine that we are here Notwithstanding ’the case. present determination must very question and our issues, similarity legal of the factual and pre- by ordinary applying made be case and was Payton post-AEDPA was a AEDPA rules. AED- highly under the deferential decided ' opinion that concluding In in our earlier standard, us is while the case before PA (k), coupled with factor California’s by ap determined pre-AEDPA and is instructions, judge’s grant resulted in a rea- we petition respect to the did not probability penalty sonable phase. reject, however, We those principal mitigating consider Belmontes’ claims that judgment seek relief from the evidence, an independent we reached legal of finding special conviction and the cir- judgment constitutionality as to the Accordingly, cumstances. we affirm the so, In challenged doing instruction. we district part, court’s decision in reverse to, to, required were free indeed determine part, and remand with instructions is- question on its merits. constitutional sue a writ vacating the death sentence. Having carefully Payton, reviewed and our previous independent determination of the III. AND FACTUAL PROCEDURAL issue, question constitutional no we find BACKGROUND our change judgment reason to on the Crime, A. The Investigation, Its previous We opinion, matter. reaffirm our Proceedings and Pretrial it and reiterate below.1 On morning Sunday, March

II. INTRODUCTION 19-year-old Steacy McConnell tele- phoned parents her and stated that she pre-AEDPA case, penalty death was afraid because several people, includ- Belmontes, Jr., ap- Petitioner Fernando ing Domingo Vasquez, codefendant had peals the district court’s denial of his peti- her. later, threatened Several hours tion for writ of corpus. habeas Because parents McConnell’s arrived at resi- her was not instructed that it must Victor, California, dence and found her principal mitigation consider Belmontes’ lying pool unconscious in a of blood. evidence, She which tended to show that he shortly died thereafter from cerebral adapt prison would he- well to would like- morrhaging caused ly fifteen to twenty become constructive member soci- ety if blows her head incarcerated for life with an iron bar. possi- without Her cracked, skull bility parole, because there and she had defensive injuries hands, reasonable probability that the instruc- on her and feet. The arms, jury’s tional error affected the decision to house was ransacked and her stereo was impose Belmontes, penalty missing. death eight J., participated

1. Of the concurring). Justices who in the Two of the other four Jus- Payton, specifically consideration of four majority only tices held that was not legal reached the same that we conclusion objectively unreasonable for state court to (k) may reach here: California’s factor cause jurors have concluded likely most constitutionally to fail to consider rele- mitigation believed that the evidence in postcrime mitigating vant evidence. In addi- permitted by (k) California’s factor and that dissenting tion to the Pay- three Justices in they considered that evidence in their deliber- Stevens, Souter, Ginsberg— ton—Justices ation, Justicеs, but those O'Connor and Ken- who would have found the use of California’s nedy, expressed they no view as to how (1)c factor unconstitutional even under the have decided question the constitutional had heightened standards, deferential AEDPA Jus- required apply been AEDPA’s Breyer, tice joined majority opinion, who highly Payton, restrictive standard. See specially concurred note that had he been Justices, Only two Scalia and making independent determination of the Thomas, regardless stated that of whether merits, likely constitutional issue on the he they applied rules, pre-or post-AEDPA the would have “Payton's penalty-phase held the limiting would have jury's held that a proceedings Eighth Amendment,” violated the to mitigating which discretion penalty requires a death consider "[i]n case ... sentencing juries to, mitigating does not constitute a consider all constitutional violation. J., Payton, (Scalia, (Breyer, evidence.” 125 S.Ct. at concurring). See id. murder, degree to second murder. That left Bel- Tuesday preceding On the montes, an- including Vasquez proceeded and who alone to trial.. people, several codefendant, “Bobby” Bola- Robert other B. The Guilt Phase Al- nos, house. partied at McConnell’s early the residence though Bolanos left principal was the witness for Bolanos Wednesday morning, party continued the state. He testified that on the morn- quanti- a Vasquez when stole Friday, until Sunday, March he and Bel- ing of amphetamine ty of “black beauties”— Vasquez’s montes drove to residence discovering Upon McConnell. pills—from they arrived, hang Vasquez out. When theft, Vasquez threw and McConnell phone was on McConnell. When group out of the house. The his Mends phone, Vasquez hung up the he informed their dislike subsequently discussed them that McConnell would not be home McConnell. during part day. latter of the individuals investigation

Police cash, they agreed were short of three and party at the extend- present who had been residence, burglarize McConnell’s steal Bolanos, ultimately to Vasquez, ed to and stereo, “clean Vasquez’s her and house.” Chevy. drove a distinctive black who wife, Lynn, Karrie testified that as matching Bolanos’ ear as recognized police kitchen, departed through men Bel- of the car that had been description grabbed montes from the counter an iron driveway at the time in McConnell’s seen bar, rolling used for dumb-bell which she '1 police impounded of the mrn'der. The tortillas. interrogated Bolanos. Bolanos car and Bolanos told the that the three men in- eventually that he had been admitted in drove to McConnell’s house Bolanos’ led to McCon- volved the events parked car and short dis- vintage, black a death; Vasquez he and nell’s identified According tance from the house. to Bola- Belmontes, Jr., who Petitioner Fernando that, nos, ap- Belmontes stated party had not been at the but who had alone, foot, carrying proach the house visiting him over the weekend been to force the metal bar case he needed murder, as his coadventurers. On entry, gather that he could McConnell’s so statement, police strength of Bolanos’ place and them near the door valuables and headed obtained warrant South getaway, quick facilitate Ontario, they arrested Belmontes at where five min- other two should wait for about nine- brother’s home. Belmontes was his around to bring utes then the car teen the time. McConnell’s house. Belmontes, Bolanos, Vasquez were that the events unfold- Bolanos testified degree with first murder and charged each Belmontes left wrist- ed as follows: However, special circumstances. Bolanos him, watch with concealed bar under arranged prosecution soon deal with resi- jacket, and walked to McConell’s testify against Vas- agreed which he about Vasquez Bolanos and waited dence. quez exchange and Belmontes minutes, up then drove and backed five degree guilty plea burglary to second driveway. Vasquez tried into McConnell’s At immunity charge. on the murder Vas- find the open the trunk but could quez’s preliminary hearing, Bolanos fin- vehicle right got Bolanos out of the key. gered Belmontes as the main assailant. repeated Vasquez. He heard assist hearing, the trial preliminary After the banging coming or knocking noises circumstances judge special dismissed the unlocked the house. Bolanos charge against Vasquez, pled guilty and he within the car, back got trunk and inside the while who met them at the home of Irma Vas- Vasquez to the front door to walked assist quez, sister, Domingo’s purchased and Shortly thereafter, Belmontes. Belmontes McConnell’s components' stereo from Vasquez emerged from the and back door them. Barron later paid testified that he carrying components. house stereo for the stereo to wearing $100 a man sprinkled with Belmontes was blood on his cap (Belmontes), baseball who did most of face, pants, Vasquez and shoes. “looked the talking. a ghost.” seen like he had Belmontes Cobarrubio,

stated that he had had to Teresa girlfriend, “take out a Bolanos’ witness” because she was home. He ex- testified that gave Bolanos her dol- fifteen plained that when McConnell heard Vas- from proceeds lars the sale quez up, and Bolanos. drive she looked scared, Acting stereo. he informed her that away him he opportu- and seized the he, Belmontes, and Vasquez burglar- had nity to hit her with the bar approximately ized McConnell’s residence. following fifteen times. day, Bolanos and Cobarrubio read a news- Flores,

Lucy neighbor, McConnell’s tes paper murder, account of McConnell’s morning tified that on the of the murder Bolanos related further details of the Chevy she watched Bolanos’ as it backed crime. He told Cobarrubio that he had driveway. into McConnell’s She observed car, remained in the and that Belmontes get passenger man out of the side had exited the house with blood on his try to unlock the appeared trunk. He clothes and had stated that he “had to take difficulty, be having whereupon the driver a witness out.” got out of the car and unlocked it. The Bolanos testified that Monday, car, March got driver back in the pas while the 16, Vasquez senger called him walked towards the front 'of to advise that he McConnell’s had questioned by house met a third been police, man. and did not She did not see where the third man had want to rap” “take the for the murder. come from. The two men headed toward Bolanos and Vasquez’s Belmontes went to thé front McConnell’s house. A short house, where the three conferred. Karrie while-later, she saw them exit McConnell’s Lynn Vasquez testified that from the door, house from the back carrying stereo kitchen she overheard Belmontes say that equipment, they which loaded the trunk he entered McConnell’s house alone and getting before car and driving away. hit multiple her times with the bar before that,

Bolanos after leaving testified joined Vasquez him in the house. house, McConnell’s the three drove to the Murillo, Barbara girlfriend, Galt, nearby city of they where intended to testified that after the meeting, Belmontes route,. the stereo. En fence telephoned her and told her that he was wiped blood from the metal bar and his “in reported trouble.” He that he had shoes. Belmontes threw the bar out of the gotten into an argument with McConnell bridge window crossed a over house, at her angry her, become and hit They Mokelumne River.2 went to the home and that fell she Vasquez, sleep,” Manuel “went to Domingo’s brother, although where Belmontes changed his “didn’t mean for go her to pants. The Barron, contacted Raul sleep.” fhree police Bolanos latex' led to the location on ered. the river bank from which the bar was recov- he Belmontes recounted that Holman, investigator, take. the lead

Detective house, gone Vasquez’s three had over to Belmontes furnished testified Bolanos shortly after his statements Vasquez and that when mentioned that tape-recorded statement, he denied home, In the first they arrest. would not be decid- McConnell In crime. the sec- in the any involvement Although ed to steal her stereo.

ond, but denied burglary he admitted expected away, to be the plan McConnell third state- hitting McConnell. go to was that Belmontes would the door McConnell, ment, hitting but he admitted home; in case she turned out to be be- once, only hit her and then that he insisted unhappy denouement of her cause direction. He stated only Vasquez’s earlier, days a few party McConnell he delivered caused single blow angry suspicious if she saw become down, he whereupon fall McConnell to Although her Vasquez or Bolanos at door. searching began dropped bar Belmontes had met McConnell a few times valuables, Vasquez leaving for alone house past, she did not know that he was contended Belmontes with McConnell. Vasquez friend of and Bolanos. Vasquez’s to pay he attention did Belmontes’ version events was consis- period and did not ob- during actions to the of who up point tent with Bolanos’ came to have suf- how McConnell serve struck the blows that killed McConnell. twenty fatal blows her fifteen to fered Vasquez agreed Belmontes and Bola- small also testified that a Holman head. stayed in the car while he walked nos drop tongue found on the one of blood front door. stated that McConnell’s He “type 0”— tested Belmontes’ shoes given him the metal Vasquez had bar type. blood McConnell’s window; he con- use break but that Maduros, per- who pathologist 'Dr. to Bel- According cealed it his sleeve. McConnell, testified autopsy on formed the montes, he door knocked McConell’s hemorrhaging that she died from cerebral and, As answered. surprise, she twenty to the by fifteen blows caused home, he out that she was soon as found skull.' She had a portion left of her back her burglarize intent to abandoned his right temple, separate contusion her hitch- He told her that he was residence. by single blow of caused which was by it was hiking stopped and had because not lacerate the skin. force that did lesser him in. raining. McConnell invited She However, not have this blow alone would in his and asked bulge noticed a sleeve first, and, if it had been the caused death her bar and what it was. He showed likely have caused unconscious- would not had it he was explained that he because arms, Injuries to McConnell’s ness. hitchhiking. He used McConnell’s bath- hands, struggle. legs, and feet evidenced stood the table and room and then Maduros, According to Dr. there would ironed clothes. talked to her while she pot” “like a cracked have been sounds having him that she was McConnell told the blows that fractured associated with him people and asked problems some skull, and blood would McConnell’s Domingo Vasquez. if he knew Belmontes in a consistent with the splattered manner had met him. said that he jambs in found on the door patterns blood her house. testimony Five continued: house, Bola- after he entered the minutes testified his own defense.

Belmontes drive-way. into the Vasquez pulled nos and Vasquez dealt the fatal He insisted walking toward the he, Belmontes, McConnell started searched blows while followed behind part something front door. the house back bar placing up gloves, her back ing wiped blood off bar Vasquez when rapped sleeve on the door. set it down on the floorboard. He was version, Under Belmontes when Bolanos’ uncertain whether there was blood on his the driveway, car backed into Vasquez pants house; when he left McConnell’s he to proceed immediately would have had said that might the blood off come door; the front he would not have had placed bar when he on it the floor- to go time to the trunk of the car to board. He having any denied wiped blood attempt open it. off of his shoes and asserted that Bolanos Vasquez told him According Belmontes, to throw bar out after he river, his window into the house, knocked at the door to and that he McConnell’s open, McConnell, complied! Vasquez pushed saw and ordered Belmontes to “hit her.” Bel- Belmontes testimony by concluded his Vasquez’ and, montes followed directive stating that the three drove to Manuel using sweeping motion, backhanded Vasquez’ house, he changed where into struck McConnell on the side of her head pair of pants. Manuel’s Manuel contacted with the fell bar. She to the floor. Bel- Barron, Raul whom they then atmet Irma bar, dropped montes ran to the back Vasquez’ house. bought Barron the stereo bedroom, door, n Bolanos, broke down the searched Vasquez $100. and Bel- returned, kitchen, that room and the to montes divided money, bought some living room. He did not enter the beer, and drove to the acquain- home of an Upon master bedroom. returning to the tance purchase narcotics. house, front of the Vasquez he observed girlfriend, Murillo, Barbara standing over McConnell and holding the murder, testified that six months after the metal bar. Vasquez He did not see hit she ran into Cobarrubio the Grape Fes- any or hear landing McConnell blows be- tival. Murillo believed that Belmontes was cause he was not attention. paying He However, the murderer. when she asked explain could not presence of defensive Cobarrubio for further details about the bruises and contusions on McConnell’s crime, Cobarrubio claimed Belmontes

hands, arms, and feet. had up” been “set because he had no back- is, rest Belmontes’ testimony n up area, in the Vasquez whereas had significant with one exception, consistent network local friends.3 with Bolanos’: Vasquez Belmontes and After deliberation, three hours of gathered components the stereo and exited jury convicted degree Belmontes first They McConnell’s back door. loaded murder with special circumstances. It components the stereo into the trunk. also special made findings that Belmontes seat, Vasquez got the back Belmontes was the actual killer and that he had the shotgun, rode and Bolanos drove. Accord- specific intent that Belmontes, death occur. route, ing to while Vasquez en bar, him handed the steel which had flesh C. Penalty Phase it, and hair Vasquez residue and then (not Belmontes) stated that he penalty had had to At phase, prosecution Belmontes, take out a witness. still wear- introduced aggravating minimal evidence. 3. Cobarrubio testified that she recalled run- Cobarrubio testified further in fact she ning Grape into Murillo at Festival. had no any information from source that thought Murillo had asked her whether she up had Belmontes been set but answered as “might up.” have been set Co- she did sorry because she' felt for Murillo. "Well, replied: might barrubio have.” her, separated by they were au- choke but two authenticated Holman Detective fled present. McConnell’s who were Murillo depicting friends topsy photographs Cartwright, window, manager dragged but Belmontes through William wounds. California, Ontario, testified to in vicinity apartment. a motel back to the her in an indi- 1979 which early an incident eventually po- neighbor A summoned Belmontes a Rudy met named vidual lice, leaving arrived Belmontes was who him a .32 attempted sell motel and premises. he had ac- handgun that caliber automatic Finally, prosecution and defense reported- Belmontes burglary. in a quired plea a stipulated that Belmontes entered cocked the weapon, the loaded ly examined April charge no to a contest in stated, Rudy and it at pointed trigger, after, accessory the fact to volun- being an Rudy left Why buy it?” got it now. “I’ve manslaughter. court refused to tary and Belmontes retained premises prosecutor introduce evidence allow weapon. actually had murdered that Belmontes that he had Cartwright testified Steven victim, Jerry Consequently, Howard.4 in Febru- Belmontes with conversation any of the murder jury never heard details alluded to the ary in which Belmontes alleged in it. role or Belmontes’ with him. upset were people fact that some talked, he indicated he As Belmontes presentation mitigation Belmontes’ was side, by slapping in his belt his gun had a focusing on two scope, limited in also he not concerned was and he stated history family personal his themes: he all the need- protection he had because and pos- for rehabilitation capacity and his Cutler, Au- California Youth Ron ed. pri- adjustment. It was itive institutional (“CYA”) counselor, testified he thority theme that defense coun- marily the latter swinging a chair once observed pressed upon jury. sel ward, another he about to hit as if were family history was one Belmontes’ before was able to intervene but Cutler His and violence. maternal poverty examination, he fight On cross ensued. Salvaggio, testified to Michael grandfather, significantly that Belmontes was admitted to Bel- daughter’s unhappy marriage his youth. than the other smaller recounted that Salvaggio father. montes’ Murillo testified about domes- Barbara ran when she daughter was sixteen , that occurred when tic incident violence married Belmontes’ away from home and move out their Belmontes to she asked who, father, refused to unemployed, give keys and to her his apartment shared excess, family, drank to support his During back. not come so he could that he was Salvaggio said beat her. Murillo, ensued, who was four fight that Bel- grandson until to his “very close” Belmontes’ second months pregnant but after that thirteen montes was about child, grabbed protection a “file” However, Sal- with him. had little contact police, but Bel- attempted phone continued, Belmontes was six- when vaggio telephone cord with his cut the montes lay dying his grandmother teen and and hit her pushed her knife. Belmontes also every day; her hospital, he visited head, causing her to point at one on the her funeral. tried to attended daughter. He their infant drop get into a car saw Howard testimony individual who proffer prosecutor's included killed, evening he was on the with Belmontes eyewitness saw Belmontes shoot who from Howard, who found the murder police officer to whom Bel- and the a CYA counselor so, weapon at house. he did another had confessed that montes counsel, Belmontes confirmed that her agrees Carol that Belmontes’ John marriage unhap- Schick, to Belmontes’ father was presented “substantial evidence” Belmontes, Sr., py. Fernando was a vio- support of this theme the form aof work,” who “wouldn’t lent alcoholic ever series witnesses who to Bel- testified her, breaking her arm and who beat on montes’ behavior and during achievements stabbing one occasion and her on another. prior CYA incarceration years ten Belmontes was old when the likelihood that he positive would make con- Mrs. marriage up. broke Belmontes re- tributions to the welfare of others if his life married., marriage up That broke five spared. Belmontes himself testified later, years when Belmontes was about custody he was in the of the Youth fifteen, he became after which difficult to Authority early from 1979 until November Belmontes had not with control. lived his prior four months to the crime. he mother since was committed to the CYA, While at employed he was on the years two before mur- CYA McConnell’s fire crew at the Pine Grove for one Camp sister, younger der. He had a brother and year, during which way up he worked his “very to whom he was close.” two, from man position last to number a again Belmontes on testified his own leadership and responsibility. Belmontes behalf. He recounted that he a poor had also during testified that his incarceration father, relationship with his who often he became involved the M-2 Christian drunk hit came home and his mother. He program. He sponsorship admitted that did like school stopped attending initially he entered the M-2 program as a grade. the ninth to get He wanted a way get out of camp, explained but he job help pay so that he could mother his that he decency was touched of his Although youth bills. he described his Haros, M-2 family, the and so grаdually “pretty hard,” as he twice stressed that he Christianity became curious about and em- did not want to a crutch.” “use as braced it. Martinez, Robert a close of Bel- friend Belmontes continued by saying that he teens, early montes’ since then- testified paroled Authority the Youth af- that he and spent great Belmontes deal serving sentence; ter his maximum that he together, usually time working Mar- stayed halfway at the house in Oakland for tinez’s low-rider car. Belmontes served as two weeks and then went to Southern Cali- best man at wedding Martinez’s and was fornia for a period, short returning with someone he could turn to for advice and Murillo to the support Lodi area argued job when he to take a with his wife. with Bel-, service; Martinez also testified that he forest and that subsequent- felt he person. ly montes was not a violent moved to in part Howev- Lodi so that he could er, consent, with defense counsel’s this tes- be However, close to the Haros. outside timony objection was struck following institution, said, Belmontes he had from the prosecutor, argued who if maintaining trouble his religious commit- this admitted, evidence was prosecu- ment and going “started back to old [his] tion should be impeach allowed to Mar- ways,” in part due to “pressure on the tinez with the evidence regarding the Jer- trial, streets.” At the time of he had not ry Howard murder. abandoned his religious beliefs felt but longer he was no important

More “dedicated one by far hun- was the second mitigation percent” theme —that dred to his religious Belmontes could commitment. lead a positive, constructive life if He testified that confined he would hope to make within an setting. institutional positive state society contributions he were incarcerated, stayed halfway he tified that at the though had little Belmontes ordered might only he do so. for specific moving idea of how house two weeks .before job. area the Lodi with the to take forest Barrett, at chaplain Dale Reverend weeks, During service. those two howev- Authority’s Facility, Pine Grove the Youth er, to Preston Belmontes returned on a he Belmontes from his testified that knew speak to wards few occasions to about sponsor- in M-2 participation Christian what life was like “on the outside.” Miller ship matched a local program, which (and message) described Belmontes ward, family with a who church-going wards, well-received by the CYA facility to leave the permitted would be believed if Belmontes were committed family specified times each visit with the term, good explained prison a life he would be week. Barrett Beverly counseling with Fred Haro prisoners was matched other not to make participated program for about the same that he had. mistakes Miller addition, bap- year. Belmontes was working was enthusiastic about Bel- stay during Only in the CYA. tized capacity montes and stated that percentage program of participants small “definitely Belmontes be used in a commitment to Chris- who made serious system prison for kind of activity” that, tianity Barrett felt baptized. were prisoners, he because related well other stayed many who unlike wards in the especially his those who shared ethnic camp ma- program get out of and only background, and because these kinds of nipulate sponsoring favors from the fami- present time programs “at the were lies, had not Belmontes “conned” them. troubling only problem solution” to the of although person- Barrett that testified he among prisoners. recidivism ally death.penalty, he did believed Finally, witnesses offered several evi- not think Belmontes deserved to die be- respect dence with Belmontes’ conver- person “salvageable” cause a with he was Christianity, during sion to which occurred “a lot of circumstances in his extenuating incarceration, first his CYA and his failure the view that Bel- life.” Barrett was of religious to maintain commitment upon his montes’ in the McConnell involvement Darlene, his wife release. Martinez’s “the enormity murder was attributable Christian, born-again that she testified had peer pressure of the and kind of socio- years known six or seven Belmontes logical part circumstances that were of his friend. and him a close Dar- considered life,” if thought that and he Belmontes lene that when Belmontes visit- recounted sentence, granted were a life he would from the ed them after his release Youth prison positive make life contributions Authority, he her that he was a told born- through prison with the his involvement again He also mentioned his Christian. ministries. relationship his disputatious girl- with Miller, chaplain Don assistant friend, Murillo, he and mentioned Authority’s Facility Youth Preston and the During her. planning move with Northern Director the M-2 California conversation, expressed Belmontes con- helped he program, place testified that Christian, not a cern that Murillo ‍‌​‌​​​​​‌​‌​​‌‌​​‌​‌​​​​‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌‍was and halfway in a house in Belmontes Oakland he worried he would be unable to upon the CYA. his release from Miller his his maintain faith on own. Christian time, that, he felt stated at the “a little bit Haro, Beverly Belmontes’ Fred M-2 and ability doubtful” about Belmontes’ to lead Bar- sponsors and members Reverend productive highly outside of a life struc- environment, church, that Belmontes like rett’s testified prison. tured Miller tes- Wednesday jury statutory evenings weekends should view the spent They year. “merely for almost a felt examples them factors of the some relationship with Bel- good had a consider, it factors” that could montes, with them. who attended church jury pay “should careful attention to each son, They him like own treated their factors,” “any these and that one of opened good to them and was a up he standing support them alone” could life teenage They on their own son. influence judge sentence. to read refused him his several times after release saw important part requested the most the CYA. Fred Haro stated that he instruction, which stated: should “[Y]ou “compassion as a son” for had your mitigating not limit consideration .genuine Belmontes had been circumstances to specific these factors. program commitment to the M-2 may any You also circum- consider other Beverly sponsors. affection for his imposing .’..-'as for not stances reasons n felt that Murillo was Barbara “defk Haro the death sentence.” The was not negative Belmontes’ life. nite factor” mitigating informed that should consider evidentiary At the conclusion of the bearing on probable permitted the court Belmontes to stage, prison conduct future to life in sentenced during jury personally closing address possibility without the of parole. Shortly stated that did arguments. Belmontes trial, legis- after Belmontes’ the California think that ex- his difficult childhood lature revised thе model instructions his role in cused the McConnell murder. make clear that the must consider However, explained he he could not , any aspect of the defendant’s character or pressures the outside of an handle life record offered as a basis for a sentence institution, he jury give and asked the to death, less than “whether or not related him “an opportunity goals achieve the for offense he is which on trial.” [himjself.” better try to Belmontes’ attor- 8.85(k) (6th ed.1996). CALJIC similarly ney stressed that Belmontes jury day The deliberated for a a and half not “make it outside.” He could on the reaching a before On the verdict.. first had a hard life argued Belmontes had day,, deliberations, after several hours of humanity. still retained his He char- but jury the sent judge asking, a note as someone who acterized if happens “What we cannot reach ver- in a structured environment —as thrived dict?” “Can. the majority rule life by accomplishments while evidenced imprisonment?” jury brought The jury spare CYA'—and asked the courtroom, back judge to the and the re- life on the ground Belmontes’ instructions, portion jury read a of the positive make if al- contributions emphasizing jurors agree, “all 12 must prison. to live life in lowed out his natural you if judge can.” The trial refused tell judge jury The according instructed the jurors what would happen if could to the then-standard model instruc- not agree. tions, which directed the consider judge emphasized The trial mitigating age, evidence the defendant’s jurors again “[went] over the history, instructions “[a]ny criminal other circum- another,” with one they might which find it easi- gravity stance extenuates the of the agreement. legal jurors crime even er to reach though it is not a The then excuse addition, judge judge crime.” In asked clarify for the read the instructions of a portion supplemental weighing instruction on the of the aggravating and by defense, requested which stated mitigating juror factors. One asked the parties. par- submitted supposed ports jury was judge whether factor, (i.e., summary judg- statutory) for ties filed cross motions listed to take each or miti- aggravating 2000, it was ment. the district court withdrew decide whether In the sheet.” then “balance gating, and magistrate judge the referral from the jurors that was instruct the than and, Rather year, relief August of that denied and, if appropriate, duty to consider their yet except six that had not on all claims to, mitigating all give effect six briefed. court referred those been defendant, com- whether presented by judge for rec- magistrate to the claims statutory factors by one prehended 2001, January mag- ommendation. simply, not, judge responded or the trial denying the judge istrate recommended though statutory no right,” “That is even claims, 2001, outstanding May and in the element reha- comprehended factor adopted magistrate’s district court thereafter, ju- another Shortly bilitation. recommendations, denied the findings and possible for Bel- it was asked whether ror judgment against and entered petition, treatment psychiatric montes receive The district court issued Belmontes. respond- judge prison. The trial while con- Appealability fifteen Certificate ed, something you consider cannot “That timely fol- appeal claims. This stitutional Following this making your decision.” lowed. a death sen- colloquy, returned tence. OF IV. STANDARD REVIEW

D. Posir-Trial ha- Because Belmontes filed his petition prior affirmed to AEDPA’s effective Supreme Court beas The California in date, sentence apply pre-AEDPA conviction and we standards of Belmontes, 744, Garceau, 45 Cal.3d People v. review. Woodford (1988), P.2d Cal.Rptr. 155 L.Ed.2d 363 Court denied certiorari Supreme (2003). the U.S. findings court factual are State peti then filed a Belmontes early in eight enu correct unless one of presumed corpus writ of Unit tion for habeas exceptions applies. See U.S.C. merated Court for the Eastern District ed States 2254(d) (1994). application § law California, which was held District of novo. facts reviewed de historical Belmontes exhausted state abeyance while (9th 1571, 1573 Borg, 74 F.3d Thompson remedies. Cir.1996). petition a state habeas

Belmontes filed stay from the a of execution and received V. GUILT PHASE ISSUES The Califor- Supreme Court. California Giglio Napue A. Claims summarily dismissed Belmontes’ nia courts compulsory process him refusing petition, state de- alleges that evidentiary hearing on him an denying failing to process by due him of prived Supreme The California any of his claims. misde- Bolanos had several disclose that denied relief in 1992. finally Court prosecutor charges and meanor favorable helped him achieve personally In on the federal writ proceedings closely charges. In on those dispositions In magistrate judge. before commenced claim, prose- he contends that related request for an he denied failing to process by due cutor violated on but evidentiary hearing certain claims misleading testi- correct Bolanos’ false record expand motion to granted his to. had never been “busted” declarations, mony that he and.re- include depositions, for his arrest the McConnell mur- paid before license and fine. None of $75 these der. matters was disclosed to the defense. trial, At Bolanos on ex- admitted cross n Background 1. Factual amination testifying that he was under Wednesday morning On the before the court in exchange grant order for a murder, signal drove into a traffic Bolanos immunity and that he would face murder way on his home McConnell’s house. charge testify. However, he refused to police A officer witnessed the accident. impeach Schick’s efforts to Bolanos were test, flunking sobriety After a field Bola- hampered by the fact that Bolanos contin- custody nos was taken into and charged ually minimized his own culpability both vdth driving various misdemeanor1 of- and the benefits-he pros- received from the fenses, including-DUI and hit-and-run. in exchange ecution for testimony. later, example, For Bolanos told the charged One week Bolanos was testifying his motive in “to degree with first for role in tell the murder truth,” and he stated that McConnell 'murder. He soon because he entered into “wasn’t even around when the agreement pled guilty hap- in which crime he pened,” grant he did not second-degree burglary view the of immu- exchange nity a particular favor. testifying against Vasquez and Belmontes. granted He was immunity for his testimo- addition, Bolanos was less than truth- ny and his sentence was left to the court’s ful when he testified about his prior com explicit prom- discretion. He received no tacts with law enforcement. When Schick leniency

ises prosecution.. from the questioned Bolanos about prior inconsis- tent statements that pled guilty burgla- After Bolanos to the Bolanos had made to police, ry, explained Bolanos string unusually by say- obtained a them favor- ‘ ing he had dispositions able made several traffic of- mistakes out of First, nervousness because it respect fenses. with was “the first time DUI/hit- fact, I got charges, attorney and-run busted.” In Ms Bolanos had appeared been “busted” twice before. In addition municipal along Sueyres, court Clark to the incident; attorney district who was DUI/hit-and-run Bolanos had prosecuting previously been against gun posses- case arrested for Sueyres’- Belmontes. On by" Holman, sion motion, Detective charges were the same officer dismissed in' the Next, who justice. arrested him for the year, interest later that McConnell mur- der. The arrest driving generated was for unregis- Bolanos cited an formal criminal charges, and driving tered vehicle and1 with a was suspended sentenced to Bolanos thirty days juvenile in plead a guilty facility, license. He was allowed to which he charge served fifteen. driving lesser without a valid -fine; license and assessed a -the $100 court Giglio 2. Claim the unregistered dismissed charge. vehicle following April, -again Bolanos was prosecution has an affirma cited an driving unregistered vehicle, for duty tive to turn over to the defense all driving license, with a suspended operating accused, evidence favorable to the includ vehicle, unsafe driving with worn ing impeachment Kyles evidence. v. Whit tires. Again, Sueyres personally ley, 419, 432, asked 514 1555, U.S. 115 131 S.Ct. municipal court charges (1995); to dismiss the Giglio L.Ed.2d 490 v. United justice. Bolanos, States, the interest of 150, 154, once 405 763, 92 S.Ct. 31 again, (1972). pled guilty driving without a valid L.Ed.2d 104 The failure to dis- Rather, pro- be cumulative. violates due rest would favorable evidence close obligated Unit the evidence is material. is all material cess when state disclose 667, 678, Bagley, casting 473 U.S. govern- ed States v. on a information shadow (1985); Singh 87 L.Ed.2d F.3d credibility.” ment witness’s (9th Cir. Prunty, 142 F.3d (9th Cir.2002) (internal quo- 1057-58 1998). is if there Evidence material omitted). Here, marks the fact tation that, had it been probability reasonable prosecutor personally appeared that defense, outcome of- to the disclosed for municipal argue court favorable Bag- have different. the trial would been of Bolanos’ dispositions misdemeanor traf- A ley, 473 U.S. 105 S.Ct. fic offenses casts a Bolanos’ shadow on probability occurs when the reasonable credibility regardless of such in- whether in the confidence “undermines suppression - the plea tervention was mentioned in Kyles, the trial.” outcome of as or offered for agreement consideration (internal quotation testimony. counsel Bolanos* Had defense omitted). marks disposition known about the existence offenses, of the misdemeanor he could argues prose showing failing Bolanos process by impeached violated due cutor say prosecu- had a motive impeachment turn over material what and unusual consisting obtaining of the existence hear hopes tion wanted to traffic disposition of Bolanos’ misdemeanor on lighter plea sentence to second responds The state offenses. burglary. Even degree though Bolanos this duty had no evi prosecutor disclose explicitly leniency, the promised not dence because misdemeanor violations prosecutor helped Bolanos fact agreement in the plea were not mentiоned punishments or obtain dismissals reduced consideration were dismissed as on his traffic misdemeanors makes testimony against Belmontes. for Bolanos’ likely that he would intercede more of this the state support argument, when for Bolanos’ behalf it came time Bo- deposition testimony of both cites Thus, sentencing burglary charge. on the attorney and his to the effect lanos clearly ad- relevant and the evidence perceive they did not the dismissal purposes impeachment, missible immunity traffic offenses related to attorney district should have dis- and the deal. it. closed argument is without merit. The state’s Nevertheless, Bel- hold that we relies have held that when the state We because, Giglio under claim fails montes’ informant, testimony of criminal on the facts and circumstances particular obligation infor- it has an to disclose “all case, the undisclosed evidence was bearing on credibili- mation that witness’s cir presents This case material. different including “the criminal rec- ty,” witness’s Benn, from those in which cumstances any ... information therein ord prosecutor’s dispensation that the we held credibility.” Carriger on which bears on of his star wit similar favors behalf of Cir.1997). (9th Stewart, 132 F.3d ticket, including a traffic quashing of emphasized importance We further the ness— burglary postpon dismissing charge, Lambert, rule in Benn v. in which we this until filing of an arrest warrant ing the Bra- satisfy “the state its held that cannot material benefits. Bern’s trial —were after dy obligation exculpatory disclose Benn, held failure In we by making some Id. impeachment evidence newa asserting that the these benefits necessitated available and disclose evidence trial, reward.”). prosecutor though even disclosed stead of nine Big months. In a deal with case, however, that he had made the infor- prosecutor this argued mant to a reduced sentence in ex- seek that the jury should view Bolanos’ testimo- Benn, testimony against change for his ny critically, jury was so instruct- impeached and defense counsel the infor- reasons, ed. For these we conclude that point. on Id. mant this Benn not analysis does control our here. fact that Aside from the the undisclosed Here, the undisclosed benefits were not may well have in Benn been more benefits material because there is not a reasonable here, than those at issue Benn substantial probability that the of outcome the trial First, for three reasons. distinguishable is would have been different if defense coun- actually in Bolanos was involved sel had known making about them. murder, whereas the McConnell informant judgment, we realize that Belmontes jailhouse in snitch. Benn Evidence need not pass sufficiency of the evidence jailhouse that a snitch received material Kyles, test. at prosecution especially from the benefits “However, 1555. our fundamental concern important because without that evidence remains whether there exists a reasonable masquerades the informant as a disinter- probability given disclosure of the evi- ested observer. See States v. Ber United witness], dence to[the benefits one or (9th nal-Obeso, 989 F.2d 333-34 Cir. more' members of the would have 1993) (describing practice relying testimony viewed[his] in a light.” different “fraught criminal informants as per- with Singh, 142 case, F.3d 1163. In this il”). case, however, In this Bolanos was impeached Bolanos was with his immunity extensively as to cross-exаmined his in role agreement, including the fact the crime and the immunity details of his charges against filed him were substantial- agreement, so the possibly could not ly lower than the evidence would have Second, him as viewed disinterested. warranted. The withheld evidence would impeachment evidence that was dis- not much, have added if anything. More- trivial; relatively closed Bern was al- over, testimony Bolanos’ was corroborated though the informant sentencing received witnesses, several other includ- case, leniency in his unrelated leniency ing disinterested witnesses Lucy like only thirty-five days jail saved him time. Murillo, Flores and Barbara who were not Benn, F.3d at Accordingly, 1057. “the involved the crime or related number and nature of the undisclosed ben- testimony codefendants. Belmontes’ efits was such have im- the contrary was uncorroborated and did peached effectively” more [the witness] up hold well under cross examination. than the benefits were disclosed. Id. Had testimony Bolanos’ been well- less By contrast, present case supported or the undisclosed benefits been impeachment evidence that was dis- greater, or prosecutor had the urged closed an agreement was substantial: al- and the judge not instructed the lowing plead guilty Bolanos to to second- view testimony suspicion, we degree burglary and immunity receive might conceivably have reached a different in exchange testimony. mürder for his Nevertheless, conclusion. given the extent Finally, in prosecutor Benn the effectively evidence, corroborating downplayed importance relative of the im- peachment unimportance of closing undisclosed argu- benefits ' compared ment.' (quoting prosecutor’s argument Id. to those disclosed, that were that reward got “[t]he he that in a and the was 6 to nature of the prosecutor’s state- 12 sentence, month got ment, he say six months in- we cannot that would

1115 1217, requires 79 3 L.Ed.2d testimony a differ- Bolanos’ viewed prosecutor put that the to act when on notice of the real light [him] had it known ent his misdemeanor quash testimony.” him to helped possibility had false Id.. lighter punish- or obtain traffic offenses state also that the prose- The contends short, the undisclosed them.

(cid:127)ment on duty cution had no this case because the not our confidence do undermine benefits ambiguous, word is and therefore “busted” circumstances, In these we in the verdict. may falsely Bolanos not have at testified not evidence was hold that the withheld all. not find the to We do word “busted” must, material, therefore, the claim be ambiguous. be Webster’s New World See denied. (3d ed.1988) (defin- Dictionary college 189 arrest”). case, ing “bust” as “to In this Napue S. Claim prosecutor knew Bolanos had argues Belmontes also pnce twice been “busted” before: DUI/ process prosecution rights violated his due gun possession. and once for hit-and-run Bolanos’ failing to correct false asser independent to duty He an correct the had “busted” tion that he had never been be testimony false and elicit the truth. independent, prosecutor fore. The has any If there were reasonable likelihood testimony he duty to correct constitutional testimony that Bolanos’ false could have Illinois, v. Napue false. 360 knows to be judgment jury, affected the we 264, 269-70, 79 S.Ct. L.Ed.2d U.S. Bowie, compelled grant petition to (1959); be N. Mariana Islands v. Cir.2001). (9th If is to this claim. Belmontes ar- respect there 243 F.3d exists, gues the false that a likelihood “any reasonable likelihood reasonable judg testimony could have affected “first time I pointing the fact jury,” the conviction must be ment of the a crucial got busted” comment arose at Agurs, set aside. United States part of defense counsel’s cross-examina- 97, 103, L.Ed.2d 342 tion. Bolanos used this false statement to (1976). prior statements explain his inconsistent points: length on of time two critical prosecu that the argues The state spent alleged Vasquez the house and duty record tion had no to correct when knocking noise that Bolanos heard of the counsel was notified because defense open he car to the trunk. got out of the hearing. drunk-driving pretrial arrest he that he was when He stated nervous of the defense counsel aware Whether prior inconsistent statements made falsity point. of the statement is beside the had never been the officer because pros fact state overlooks testimony that busted before. duty correct false ecutor’s testimony it important inconsistent was because arises, duty out of a of fairness simply to incriminate Belmontes ex- tended defendant, of “the free but out Vasquez by suggesting culpate duty constitutional standing State Vasquez en- McConnell was killed before protect sys representatives and its house; directly it tered the also was Bowie, testimony.” against tem false by any witness. Con- corroborated other Therefore, regardless of F.3d at 1118. Bolanos had ceivably, if the knew that counsel should have whether defense trying explain prior incon- lied when falsely, known that a state witness testified points, could statements these duty to sistent prosecutor’s ‘responsibility and “[a] lying have concluded that Bolanos false and correct what he knows be noise, 269-70, truth,’ timing knocking and the about the Napue, elicit ' please prosecution pro- or B. either to Interest Conflict of then would Vasquez. tect have Belmontes contends he that was de- likely to believe Belmontes’ tes- been more prived process of due and the effective Vasquez timony was actual killer. that assistance counsel 'due to a conflict of arising

interest multiple pri- Schick’s however, Ultimately* we do not representations or Vasquez. Cuyler See testimony Sullivan, Bolanos’ false re believe that 446 U.S. (1980). prior 64 L.Ed.2d

garding the absence arrests could At the heart of the Schick, allegation claim is the that because judgment have affected the of the jury. interest, of the conflict of did not offer explained, testimony we regarding As of Vasquez’s violent criminal his- surrounding the the events murder was in tory support theory of his defense respects by indepen most corroborated Vasquez was the actual killer.5 Belmontes Furthermore, dent witnesses. the most argues that this evidence was relevant and testimony' of damaging came from first, admissible for two purposes: to show cross-examination, Belmontes himself. On was, Vasquez fact, killer; the actual Belmontes conceded that for his version of second, impeach credibility Bolanos’ true, Vasquez events to be would have had by showing that fear of by retaliation directly to have come from the car to the Vasquez place caused him to the blame on trunk, attempting open door without Belmontes, rather than on the true mur- is direct evidence to the con there derer. trary eyewitness. from a disinterested Moreover, say refused to 1. Factual Background he had or Vasquez hitting seen heard During pretrial proceedings, Vasquez’s McConnell, explain and he could not how attorney brought a motion recuse Vasquez would had time enough to Schick as counsel for Belmontes. mo- both murder McConnell and ransack the tion was based on the fact that Schick’s Belmontes, front Finally, bedroom. but firm represented law had Vasquez in a sprinkled' had Vasquez, blood on his case; Vasquez’s murder attorney record, clothes and shoe. On this we hold feared that had Schick confidential infor- that there is no reasonable likelihood -that mation that against Vasquez use testimony Bolanos’ false that his arrest in part of his theory Vasquez defense connection with the McConnell murder actual killer.6 opposed Schick I got “the first time busted” would motion and filed declaration in which he judgment jury. (1) have affected the of the stated: attorney represented who We deny therefore Vasquez relief this claim. firm; 1979 had since left the (2002) 5. argues judge (extending Belmontes also that the trial Cuyler proof burden of independently process rights violated his due judge to situations in which trial failed to about, inquire failing adequately inquire into the con- into conflict he knew which or failing reasonably known). flict and to advise Belmontes about the should have consequences nature and We conflict. Earlier, do not address claim because Belmontes Vasquez’s successfully counsel had prevail cannot showing 'on it without .investigator. moved to recuse Schick’s This Schick labored under an actual conflict of investigator previously had worked on Vas- defense, adversely interest that case, affected his quez’s 1979 murder and at the time of showing Belmontes cannot make for the rea- part-time Belmontes' trial he worked office, explained Taylor, sons public Mickens v. represented hereafter. defender's which S.Cf Vasquez L.Ed.2d in the McConnell murder. (2) calling Schick that he stated considered against Vasquez was dismissed the case (3) trial; acquired Vasquez himself had he as witness and would have prior to been confidential communications Vas- fully no him prepared to cross examine had (4) file had been the case de- quez; However, he taken the stand. he also stroyed months earlier. trial eight investigate admitted that he did not Vas- and, on judge hearing held a based these quez’s though criminal history violent even facts, judge the motion. The asked denied doing helpful so would have been Bel- if wished to Schick as he retain montes’ defense. Schick stated that he did knowing that Schick’s firm had lawyer, his pursue make not not a tactical decision Vasquez. Bel- previously represented investigation. explained He that his he did. montes said that procedure investigate normal is to proceedings, witness; Bel- postconviction potential In criminal record of a attorneys however, learned that Schick’s montes’ Vasquez he did not consider was, fact, Vasquez much connection potential witness until after he had entered more extensive than he had disclosed plea. guilty or the court. Prior either Belmontes deposition Sсhick his testified at that he practice, entering private Schick duty knew that he had a of continuing criminal firm

the members of his defense loyalty to he Vasquez, but did not view public had at the local defenders’ worked conflicting as Belmontes’ defense with that There, office. Schick the members However, duty in any way. Schick admit- Vasquez on oc- represented his firm three attorney ted he knew the district to the murder casions addition charge could revive the 1979 murder charge. had him- August In Schick any at against Vasquez (although time he Vasquez gun posses- on a represented self that it never also stated crossed mind Vasquez nego- charge; helped sion he had prosecution do so as a guilty In plea. tiate a November any presented result of Schick Riddle, a law partner Patrick in Schick’s trial). addition, In Schick rec- firm, rape represented Vasquez had ognized though Vasquez that even entered 1976, Douglas charge.7 January In Jacob- guilty trial, plea prior to Belmontes’ sen, firm, third partner Schick’s had Vasquez liberty ongoing had an interest in a represented Vasquez purse-snatching being viewed an aider and abettor in case that trial. did went Schick murder, and not the actual McConnell notify Belmontes or court of these killer. representation though incidents of even he of the

remembered them the time recu- 2. Discussion motion. sal outset, dispose At we signed another Schick declara- objections procedural the state’s to the respect tion to the conflict of interest first claim. The state contends that declaration, claim. In that he averred that claim is unexhausted because Belmontes motion, at the time the recusal he saw present Supreme to the did California relationship any Vasquez’s no between underlying all facts the claim. Court prior cases and the McConnell murder. argument This fails because “new factual representation He that his of Bel- asserted allegations do not render a claim unex- by rep- his prior montes was not inhibited ‘fundamentally alter hausted unless loyalty and that his Vasquez resentation already complete legal claim considered to Belmontes was and undivided. represented case at the time Belmontes. 7. Schick avers that he was not aware of this ” Wood, sufficiently Chacon 36 F.3d been informed of the courts.’ conse state Cir.1994) (9th 1459, (quoting Vasquez quences of his 1468 choice.” Lockhart v. Ter 254, 260, 617, Cir.2001) hune, 1223, (9th Hillery, v. 474 U.S. 106 S.Ct. 250 F.3d 1232 (1986)). Here, (internal although the 88 L.Ed.2d 598 quotation marks and citations omitted). evidentiary sup- additional facts add some Here, Schick failed to inform claim, do not port “fundamen- Belmontes or the court the extent of his it. v. tally Thompson, alter” See Weaver prior relationship Vasquez. addi- 359, (9th Cir.1999) (holding 197 F.3d 364 tion, judge neither Schick nor the trial properly misconduct claim was explained to Belmontes Schick owed petitioner- when inci- presented exhausted continuing duty loyalty Vasquez, of improper dents contact that dif- duty that potentially could conflict with number, kind, not in fered but from theory Vasquez Belmontes’-defense —that courts). presented what was to state was McConnell’s actual killer. Under legal essential factual and theories are the circumstances, these we Bel- conclude that presented same as those to the California sufficiently montes was informed of the Therefore, adequately courts. choice, consequences of his and his waiver exhausted the claim. Lockhart; was therefore invalid. See 250 1232-33, at citing F.3d United States v. Next, argues the state Curdo, (8th Cir.1982) (hold- 680 F.2d 881 by is Teague claim barred nonretroac- ing that waiver was ineffective when the Lane, tivity Teague doctrine. See v. 490 defendant of possible was informed conflict 1031, 1771, U.S. 109 S.Ct. 104 L.Ed.2d ‘ attorney’s prior due to representation of (1989). government bases this argu may codefendant and told that conflict on ment the Supreme Court’s recent state prior from arise confidential communica- that, precedent ment as far as its own is tions, but not may told that conflict arise concerned, question Cuyler whether attorney’s from loyalty continued to code- extends to representa cases successive fendant). tion open. is still v. Taylor, Mickens 162, 1237, 1246, 152 122 S.Ct. L.Ed.2d To establish a Sixth Amend (2002). However, we have held interest, ment violation based on conflict of circuit court holdings suffice to create the defendant must show that an actual “clearly rale of law under established” conflict of adversely interest affected his Hill, 1089, Teague. Bell v. 190 F.3d 1091 lawyer’s performance. Cuyler, at 446 U.S. (9th Cir.1999). circuit, In this it was well- 338, 1708; Mannhalt, 100 S.Ct. 847 F.2d established at the time that Belmontes’ Generally, at 579. it is more difficult to conviction final that became conflicts an resulting demonstrate actual conflict magnitude constitutional can arise from successive, simultaneous, rather than See, representation. cases of successive Mannhalt, representation. F.2d e.g., Reed, Mannhalt v. 847 F.2d 579 580. Conflicts of interest on based succes (1988); Wheat, United States 813 F.2d representation may sive if arise the cur (9th Cir.1987), 1402 & n. 1 aff'd substantially rent and former cases are grounds, other 108 S.Ct. related, if attorney privileged reveals (1988). According 100 L.Ed.2d 140 client, communications of the former or Teague-barred. the conflict claim not is attorney loyal otherwise divides however, Id. Ultimately,

-We also hold that ties. actual an purported waiver of the conflict of interest conflict is one “that interest affected was invalid. knowing performance “For waiver to be counsel’s opposed to a —as intelligent, the defendant must have mere loyalties.” theoretical division of by refusing clients’ to raise Mickens, In other current case at 1243. that a former client the obvious defense of conflict words, “possibility simple responsible for the murder. actually a criminal convic- impugn insufficient to (where 1230-31, Lockhart, 250 F.3d at See Cuyler, 446 U.S. tion.” person that the same evidence showed had committed both earlier murder po whether the must decide We and the murder for which defendant engendered interest conflict of tential trial, on trial counsel refused defendant’s Vasquez prior representation Schick’s present that his former client to evidence begin conflict. We into an actual ripened murder); had committed the earlier that suggestion no noting that there is by (defense Sanders, 1453 21 F.3d at counsel substantially Vasquez’s prior cases were successively represented two brothers murder or that to the McConnell related murder; who were accused of the same privileged possession in was Schick his guilt the first brother confessed to There Vasquez.- from communications counsel, him defense who advised to take an fore, to if Belmontes is demonstrate trial; аt the Fifth at his brother’s conflict, that he must show Schick actual trial, put uncon- defense counsel forth an Vasquez loyalties” between “divide[d] than vincing alibi defense rather evidence v. Fitzpatrick McCor and Belmontes. committed that the first brother had (9th mick, Cir.1989), 1247, 1252 F.2d 869 murder); F.2d Fitzpatrick, 869 at 1251-52 Mannhalt, F.2d at 580. In en citing (defense present to counsel refused de- beyond inquiry, we look in this gaging actually client com- fense a former that contrary protestations Schick’s murder; prior because of the mitted in the independent see whether evidence attorney-client coun- relationship, defense allegation of divided supports the record in the former inno- sel believed client’s Shwayder, v. loyalties. United States current cence to detriment of his (9th Cir.2002) (“Human F.3d client). mo self-perception regarding own one’s, argues nevertheless that an Belmontes cir particular actions difficult tives for actual conflict of interest affected Schick’s upon, faulty too to be relied cumstances is According at his trial. performance reporting telling even if the individual Belmontes, though argued even Schick it.”); v. perceives as he Sanders truth killer, he failed to Vasquez was Cir.1994) (9th Ratelle, 21 F.3d theory'with'hard evidence. support-this (“The of an actual conflict cannot existence should have Bélmontes asserts that Schick solely governed by perceptions be lengthy criminal investigated Vasquez’s rather, attorney; must the court itself as evidence that presented record the record to discern whether the examine He the actual killer. also Vasquez was in have attorney’s behavior seems to been impeached asserts that Schick should conflict.”). by suggested fluenced was in fear for by showing Bolanos that he examination of the rec- After a careful by his life due' to death threats issued ord, that Schick di- we find no evidence powerful had a motive to Vasquez and thus Vasquez and loyalties vided his between Vasquez from falsely shift the blame Indeed, de- Belmontes. Belmontes’ entire argues Belmontes. Belmontes Vasquez lapses the killer. only explanation fense was possible these by from distinguishable This case is thus felt part on is that he bound Schick’s Lockhart, Sanders, Vasquez, Fitz- continuing duty loyalty cases like refrain required him to duty all of which addressed situations that this patrick, that could have result- sabotaged presenting their evidence defense counsel which the 1979 prose- ed in the revival of murder that a conflict caused Schick to handle impaired Vasquez’s or prospects cution for Belmontes’ case as he did. See United Miskinis, early parole degree on his second mur- States 966 F.2d (9th Cir.1992). Thus, der conviction the current case. Belmontes has not deprived shown that he his Sixth view, however, are of We these by rights Amendment an actual conflict of too alleged failings speculative are to sus- interest. tain conflict of interest claim. This is to present a case which Schick failed C. Involuntary Statement directly Vasquez’s— that went argues prosecutor Belmontes guilt and therefore or inno- Belmontes’— process rights violated due introduc- Rather, sought squarely cence. Schick ing involuntary, into evidence his inculpa- place Vasquez, blame on did not tory However, statements. any overlook direct evidence that point. in deposition testified spoke that he to simply investigate He failed and present to police freely voluntarily. and There acts, prior evidence of bad Vasquez’s was due process no violation here. admissible, which, might marginally whether a affected would have had D. Challenge Counsel’s Failure to reasonable as to guilt. doubt Belmontes’ Arrest Warrant Given the suggesting absence evidence Belmontes claims that Vasquez (cid:127)that his trial was actual killer and counsel given was damaging constitutionally for failing nature of ineffective statements, challenge to conflicting any own his arrest warrant. He ar- counsel might gues to investigate have failed and the warrant offer his case was facially to regarding Vasquez’s support criminal his- insufficient a finding of short, failure, tory. probable In we hold cause because nothing the war- alone, standing to rant enough is show that allegation corroborated the that Bel- loyalties himself, Schick divided his between Vas- montes opposed Bolanos, to quez not “likely” and Belmontes. It was involved in the crime.8 8. Thereafter, The warrant reads: Steacy called McConnell. three of them talked about the fact that Holman, Detective Joaquin Elbert San Steacy possessed expensive property some Office, County testify Sheriff’s will that: he at residence. her Fernando Delmontes Victor, responded to N. 17281 Sunrise St. money he said needed to send his wife early onCA in the afternoon. The 3/15/81 Angeles. in Los Delmontes decided to bur- house ransacked. glarize the McConnell residence after Vas- Deputy testify St. will he Sure was the quez told them McConnell would not be deputy first at Sheriff to arrive 17281 N. Vasquez agreed home. and go Bolanos Steacy Sunrise. McConnell was on the with Delmontes. Bolanos drive them to being per- floor administered medical Upon McConnell's arriving in his car. Steacy sonnel. subsequently McConnell out, vicinity, got carrying Delmontes died. brought iron bar he had with him from autopsy Steacy Dr. Madieros did the on Vasquez’s house. McConnell. The cause of death was blunt Delmontes told Bolanos to wait in the car trauma the head. minutes, for 30 then to drive to McConnell's Bolanos, being Bob after advised of his get and him. rights, rights Miranda waived those McConnell’s, they When drove to following: told Detective the That he trunk, went opened Vasquez went into Domingo Vasquez, to the home of Jr. He Vasquez the house. speakers carried stereo Fernando Delmontes on from the house to the 3/15/81. car trunk. Del- house, Vasquez at While Vasquez Vasquez montes followed out with the re-

1121 n knowledge” prong, Aguilar, 378 sis U.S. Claim Strickland 1509, S.Ct. and because it con- 84 his inef prevail order to interest, against penal tained statement claim, Belmontes must show fectiveness veracity prong. it satisfied the United (1) performance counsel’s his trial that: Harris, 573, 583-84, v. 403 91 States U.S. objective of reason below an standard fell (1971) (holding 29 L.Ed.2d 723 S.Ct. (2) ableness; is a reasonable there that, cases, against pe- most statements that, unpro counsel’s but for probability reliable); inherently áre hut nal interest errors, proceed the results fessional Hall, v. 113 F.3d been different. Strickland see United States ing would have 668, 686, (9th Cir.1997) 104 S.Ct. Washington, (declining apply v. U.S. Har- (1984). satisfy To 80 L.Ed.2d accomplice informant because “once ris prejudice in; a Fourth prong Strickland’s person police believes that the have suffi- context, must dem Amendment him, cient evidence to convict his state- that a probability a reasonable onstrate impor- person ment that another is more would have succeeded suppress motion to criminal enterprise than tant of the warrant suppression credibility its gains inculpatory little out-come would have led to. different aspect”). Morrison, trial. Kimmelman Nor the claim have had a rea- 865, 375, 106 L-Ed.2d probability of success under Cali- sonable (1986). coun The reasonableness of According to the fornia law. California from coun performance sel’s evaluated Court, Supreme .affidavit contained alleged time perspective at the sel’s support a find- sufficient corroboration 384, 106 S.Ct. 2574. error. Sec id. ing probable cause: trial, At the time of The circumstances of the crime and evi- applied test Aguilar-SpineUi the federal found at the crime scene—as sum- dence applica warrant supporting to affidavits marized in the affidavit —corroborated require did not Aguilar-SpineUi tions. counsel [T]rial Bolanos’ statement.... independent corroboration the facts set reasonably could have concluded that Rather, Agui under forth in the affidavit. corrob- the affidavit contained sufficient on its face had to lar-SpineUi, the affidavit statement; hearsay of Bolanos’s oration a mag so that provide enough information thus issued on that the arrest warrant (1) that the infor istrate could determine: cause; and that a de novo mo- probable (the “veracity” prong); mant was reliable quash tion to the warrant would (2) dependa information and that his was proved futile. (the knowledge” prong). Spi “basis of ble Belmontes, 744, 768, 45 Cal.3d People v. States, 410, 393 89 nelli v. United (1988). 126, P.2d Cal.Rptr. 310 (1969); 584, Aguilar 21 L.Ed.2d 637 S.Ct. of the Cali- are bound statements We 1509, Texas, 108, 114, v. 378 U.S. 84 S.Ct. to California law. Supreme Court as fornia (1964); v. States 12 L.Ed.2d 723 United McGuire, 62, 67-68, v. 502 U.S. See Estelle (9th Cir.1974). Larkin, 13, 510 F.2d (1991) 385, 116 L.Ed.2d law, affidavit met both Under federal (“[I]t of a federal habe- province is not prongs. Because the affidavit stated state court determi- as court to reexamine acquired through his information Bolanos questions.”). Accord- observation, nations on state law it satisfied the “ba- first-hand house, up, drove he beat and when Bolanos portion of stereo. Delmontes ceiver was later Vasquez her with the bar. The stereo splattered was iron with blood. sold, proceeds divided. said McConnell not. Delmontes claims, they we must conclude Schick would to Belmontes’ but ingly, do not probability change had reasonable not have calculus basic involved in deter- challenging the arrest warrant. mining success in reliability. Bolanos’ Accordingly, challenge material, Thus failure to the warrant his are not and the Franks ineffective assistance of does constitute . claim must be denied.

counsel. E. Doyle Claim Franks Claim prosecutor Belmontes asserts that alleges Belmontes also that mate violated process rights by his due cross- in the affidavit caused rial omissions ‍‌​‌​​​​​‌​‌​​‌‌​​‌​‌​​​​‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌‍examining him as to post-arrest silence magistrate to issue warrant for which Ohio, Doyle violation of v. 426 U.S. probable no cause. there was See Franks (1976). 96 S.Ct. 49 L.Ed.2d 91 How- Delaware, 154, 156, 438 U.S. 98 S.Ct. ever,'the Supreme Court has held that (1978). L.Ed.2d 667 Under Doyle not apply does to a defendant who Franks, aif criminal defendant establishes rights has waived his Miranda volun- by a preponderance the evidence that an tarily given a police. statement recklessly officer omitted material infor Charles, 404, 408, Anderson v. affidavit, mation and if the affida (1980). 65 L.Ed.2d 222 vit with the omitted considered evidence is deposition Belmontes testified cause, probable insufficient establish rights, understood his Miranda waived “warrant must then the be voided and the them, spoke freely voluntarily fruits of the search excluded the same police. Doyle No error occurred. probable extent as if cause was lacking.” Id. F. Unconstitutional Restriction appeal,

On Belmontes did not on Cross Examination specify what evidence was omitted from contends the trial warrant, the but did refer to the Cali judge rights violated his Sixth Amendment opinion, fornia Supreme Court which de by unconstitutionally restricting his cross (1) categories scribed four of evidence: examination of Lynn Karrie Vasquez, Vas affiant, officer, a police was familiar quez’s Vasquez wife. Ms. testified that history with Vasquez’s violent but did not she saw Belmontes take the iron bar from (2) Belmontes; know Bolanos’ car had the kitchen and heard him killing admit to crime; been identified at the of scene the sought McConnell. Defense to im counsel (3) only his Bolanos offered statement af peach testimony her by demonstrating impounded ter his car girl was and his that she lying was order to increase (4) him; friend incriminated had at Vasquez’s early at an parole by chances first, speaking Bolanos lied when to the emphasizing greater culpabili police. Belmontes, 769, 45 Cal.3d. at 248 ty. strategy This was foiled because the Cal.Rptr. 310. 755 P.2d Three of judge trial refused to allow coun defense these aspersions omitted facts cast on Bo- sel to question Vasquez Ms. as to her lanos’ credibility they highlight because knowledge length of Vasquez’s sen strong motive to shift blame for tence. McConnell’s death to someone else. The pro fourth The Confrontation plainly is of Clause no relevance. As to three, right tects the face of the defendant’s to cross examine affidavit makes clear Mirandized, potential Bolanos witnesses which bias. itself Delaware VanArsdall, 673, 679, indicates that a suspect Bolanos was (1986). crime. The omitted details add However, more color 89 L.Ed.2d 674 the actual killer. lati Belmontes was retains considerable judge trial However, Supreme the California Court limits on cross- reasonable impose tude were harassment, properly held that these statements preju based examination prior statements. admitted consistent We issues, dice, and relevance. confusion of by the of opinion are the California bound subject error to harmless Any Id. error Supreme Court in these matters state 684, 106 Id. S.Ct. review. Estelle, 67-68, 112 law. 502 U.S. at S.Ct. judge the fact that Despite stated, 475. As the Court has “the Due exploring from defense counsel prevented permit Process Clause does not the federal respect with Vasquez’s bias Ms. engage finely courts to in a tuned review sentence, defense Vasquez’s length evidentiary wisdom state rules.” extensively her counsel cross-examined Lonberger, Marshall v. effectively. Defense counsel elicited (1983). n. 74 L.Ed.2d 646 known testimony Vasquez had Ms. Here, the statements added little and did child, years, eight bore his her husband fundamentally the trial unfair. render spite frequent him in stayed with infidelity, him while he was married H. Error Instructional murder, vis- prison for McConnell in challenges also jail every him in weekend. ited directing specu struction Ms. to believe that ample had reason thus why late toas other individuals involved in hus- in favor of her Vasquez was biased along on trial the crime were not with addition, counsel forced Ms. Vas- band. In He Belmontes. claims that this instruc that, although been quez to admit she had considering prevented tion extensively during police questioned immunity impact agree of Bolanos’ day it until the be- investigation, was not credibility. must ment on his We deter she first claimed Belmontes’ trial that fore ailing “whether the instruction mine the crime. to have heard him admit itself so infected the entire trial that testimony strongly suggested This resulting process.” conviction violates due what she Vasquez lying about Ms. 72, 112 (inter Estelle, 502 S.Ct. 475 U.S. at Vasquez could have heard. Ms. claimed to omitted). nal We con quotation marks effec- impeached not have much more been not, jury was clude that it did because the tively. Bolanos’ also instructed that should view light of extensive and effective in testimony suspicion due to his occurred, that and the cross-examination Accordingly, we in the crime. volvement minimal amount of additional force this deny claim also. added, the material would have excluded I., , Fair Cross-Section error, if had a sub- any, could not have injurious jury’s stantial and effect on the that he was de alleges Belmontes Abrahamson, v. 507 U.S. verdict. Brecht of a fair cross- jury comprised of a prived 1710, 619, 637-38, 123 L.Ed.2d 113 S.Ct. community because of section of (1993). deny Accordingly, we relief 353 minority jurors systematic exclusion of as on this claim well. However, no provides from the venire. of his claim. support data in statistical G.Evidentiary Errors by thus barred our claim is his ren- argues Borg, trial was in Thomas v. 159 F.3d decision (9th Cir.1998). case, intro- fundamentally petitioner unfair dered In that to double-hearsay his failure hearsay argued and that we should excuse duction of necessary testimony provide the statistical Bolanos’ supporting statements trial because his counsel constitution- Belmontes first asserts failing for to ally preserve ineffective it. jurors based their decision on the view at 1150. held: Id. We that “life without possibility of parole did of our fair purposes cross-section

[F]or not spend mean that Belmontes would analysis, the reason for Thomas’ lack of rest of life in prison.” Belmontes is immaterial. Thom- evidence is Because entitled relief this on claim because provided has us with sta- insufficient jury processes. it concerns intrinsic “[I]n- tistical evidence determine whether trinsic processes will not be examined substantially underrepre- were blacks appeal on support cannot reversal.” panels on venires or sented Kern United States Bagnariol, 665 F.2d trial, County at of his the time his Sixth (9th Cir.1981). Amendment fair claim cross-section jurors Belmontes next alleges that the must be denied. had improper contacts with members of Applying Id. 1150-51. Thomas to the family. the victim’s He bases this conten- case, deny facts we must claim. excerpt tion on an from the record in Jury J. Misconduct which reprimanded the trial court one of jurors victim’s talking father Belmontes contends that the dis motorcycles. about After the denying reprimand, trict court erred in him an eviden- tiary hearing juror trial court hearing misconduct conducted a claims. A petitioner habeas must meet juror determined was not biased two conditions be entitled to a federal as a result of his contact with the victim’s (1) evidentiary hearing: allege He must fаther. Belmontes does assert either which, facts proven, him would entitle hearing was not full or that was (2) relief, and show that he did not receive not fair. Nor does he assert that he has court, hearing full and fair in a state any newly discovered evidence. Accord- either the time of the trial or in a ingly, he is not entitled a federal eviden- proceeding. collateral Id. at 1126-27. A tiary hearing on this claim.9 petitioner who these meets conditions Third, Belmontes asserts that several See, hearing. must e.g., receive jurors prejudged his guilt engaged Taylor, Williams v. premature However, deliberations. even (2000) (holding L.Ed.2d 435 assuming jurors latter, did the prisoner pursued because diligently claim Belmontes would not necessarily be enti- court, in state hearing, was denied a See, tled to relief. e.g., United States v. he was to a hearing entitled in federal Klee, (9th Cir.1974) (de- 494 F.2d court); Navarro-Garcia, United States v. nying motion for new though even (9th Cir.1991) (“Unless 926 F.2d jurors discussed the case during breaks court able determine without a and expressed premature opinions hearing that about allegations are without credibility guilt). petitioner or defendant’s A allegations that if true must trial, allege which, would not warrant a new proved, an eviden- facts if would show held.”). tiary hearing must be that the premature preju- deliberations Moreover, the state court's factual determi- convincing clear and evidence that the state subject presumption nation a of correct- finding court's factual was erroneous. Pat- Yount, 1025, ton, ness. Patton v. 1037 n. 467 U.S. at 1037 n. 104 S.Ct. 2885. (1984); However, 81 L.Ed.2d 847 tending he submitted no evidence 2254(d) (1994). § 29 U.S.C. To overcome the the presumption, overcome and the record presumption, by Belmontes must establish contains none. because, it was infected racial that he did not Clause the extent- him to diced against defendants discrimination whose States v. Hen- fair trial. United a receive (9th Cir.1977). support were white. victims his drix, F.2d claim, expert relies on an indeed, re- here; not done so has .Belmontes Belmontes Berk, port prepared by Richard a well- any facts other than alleged not he has respected professor sociology (cid:127) and statis- place. took deliberations premature California, University Los tics in alleged juror prejudgment, As analyzed prosecutors’ Berk Angeles. for Habeas Petition Writ of his Amended death-eligible in 122 charging decisions sit- “[a] Belmontes contends Corpus, Joaquin committed in Coun- homicides San remarked, kill- ‘Here comes the ting juror ty August through 1986.10 In brought into er,’ petitioner whenever accurately order to describe the role of claim, true, might if court.” While race, charg- ethnicity penalty death relief, Dyer him to see entitle possibly over ing,. coded for 450 variables. data Cir.1998) (9th Calderon, F.3d running logistic regression After numerous banc) (“The (en prejudice or of even bias tests, Berk concluded that .odds criminal de- single juror [a would violate being charged special circumstances with trial;”), Belmontes to a fair right fendant’s] significantly according varied the race request the issue in his for did not include of the victim. A defendant who killed a any hearing present or facts evidentiary person more likely white was five times him to relief. Accord- entitle charged special be circumstances court did not err ingly, the district than an African defendant who .killed .a hearing on that to afford him failing twenty likely times more American claim. if charged than victim were Latino. be .the alleged has Belmontes facts Because however, Predictably, government’s relief, that, true, him would entitle we experts report Berk’s and the .reviewed an evi- affirm the district court’s denial of underlying opined data and that the data hearing misconduct dentiary pattern discriminatory did reveal County. claims. charging Joaquin in San For the opinion, purposes of this we assume VI. SPECIAL CIRCUMSTANCES validity and statistical accuracy ISSUES report.11 Berk Charging A Racial Discrimination claim of discrimina (cid:127) alleges charg tory essentially a selective charging is . claim, analyze we it under ing Eighth prosecution case violated the decision prosecution rubric. Selective doc- Equal and the Protection Amendment report only probation depart- printed tables in the contained 10. The data set consisted of variables, reports death-eligible report for all homicides ment stated four non-racial during charged period, time ex- the relevant actually that Berk and his team considered County cept 70 for which the lacked cases many in addition to set other variables those reports, complete 52 cases in which de- declaration, forth in the tables. In his Berk were not bound over trial on fendants small, six-variable model as characterized charges, and six cases in which the murder summary” "simply that he and stated con- were female. defendants set, all data which sidered the variables in the many We have non-racial factors. included questioned court relevance 11. The district state- reason disbelieve Berk's sworn no report ground on the Berk of the Berk that only the .district ment and can conclude that on "a his model that used based conclusions Although the court was mistaken. only four non-racial-factors.” 1126 however,

trine,, poses significant 464, Armstrong, hurdles 517 U.S. at 116 S.Ct. 1480 government Batchelder, (quoting 125, retains for Belmontes. 442 U.S. at 99 2198). prosecute. as to whom to broad discretion S.Ct. prosecute decision to States, 607, 598, Wayte may 470 upon unjustifiable v. U.S. not be based United 1524, (1985). race, 84 L.Ed.2d 547 as religion, 105 S.Ct. standard such or other prosecute arbitrary classification, decision is including Because the based the exer- case, strength such as the protected. statutory on factors cise of and constitu- government’s priorities, rights. enforcement tional 464, 517 at Armstrong, U.S. relationship priori 1480; and the to those 608, case’s 116 S.Ct. 470 at Wayte, U.S. ties, Supreme Likewise, Court has stated that 105 S.Ct. 1524. the decision to “particularly such decisions are ill-suited charge penalty death cannot rest on 607, judicial review.” Id. at 105 criteria S.Ct. that offend the Constitution. Therefore, a presumption regu McCleskey Kemp, 279, 293, 107 1524. v. 481 U.S. larity (1987); prosecutorial judgments, supports Ricketts, S.Ct. 1756 Adamson v. (9th Cir.1988) (en “in of clear 1011, the absence evidence to 865 F.2d 1022-23 banc), the contrary, presume [prose abrogated courts that on grounds, other Walton properly Arizona, 639, their discharged cutors] have offi v. 3047, 497 U.S. 110 S.Ct. cial (1990), overruled, duties.” United States v. 111 Armstrong, L.Ed.2d 511 Ring v. 463, (1996) 464, Arizona, 584, 517 at 116 1480 2428, U.S. S.Ct. 536 U.S. 122 S.Ct. 153 Found., (2002). (quoting United States Chem. L.Ed.2d 556 Inc., 1, 14-15, 1, 272 47 S.Ct. 71 U.S. L.Ed. In prevail order to on a selec (1926)). prosecutor long “So as the claim, tive prosecution a defendant must probable has cause to believe-that the ac that prosecutorial show policy both had committed cused by an offense defined a discriminatory effect and was motivated statute, decision whether or not tо discriminatory purpose. Armstrong, prosecute, charge what file or bring 465, 1480; at U.S. 116 S.Ct. see also jury, before a grand generally rests entire McCleskey, 292, 481 U.S. at ly his discretion.” Bordenkircher v. (“[T]o prevail under Equal Protection Hayes, 357, 364, 663, 434 U.S. 98 S.Ct. 54 Clause, prove [a defendant] must (1978). L.Ed.2d 604 decisionmakers his case acted with dis

Yet, is a prose there line the criminatory purpose.”). To establish dis may prosecu- cution not Although criminatory cross. in a effect race discrimination broad, case, torial is discretion is unlimit a defendant prove similarly must Batchelder, ed. States v. United race, situated individuals of a different or 125, 99 S.Ct. 60 L.Ed.2d 755 race, whose victims were of a different (1979). Rather, prosecutor’s “a discretion not prosecuted. were Armstrong, 517 ” ‘subject 467, 116 to constitutional constraints.’ U.S. at S.Ct. 1480.12 Armstrong, Supreme 12. study In Court stated disparities showed statistical ac- discriminatory cording [t]o establish effect in a to the race of the victim. 481 U.S. at case, 286-87, case, race the claimant must show that simi- 107 S.Ct. In larly argued situated individuals McCleskey race State did not have different prosecuted. standing were not to raise a discrimination based claim added). (emphasis S.Ct. 1480 Belmontes' sta- on his victim's race. Id. at 291 n. showing. meet tistics do not this McCleskey Neverthe- 1756. The Court concluded that less, although id., standing claim, Belmontes' claim is based did raise victim, race, the race of his directly McCleskey's argument own we do it addressed barring not read our this sentence review. that he against ... “discriminated be- McCleskey, examined a court statistical cause of tire race victim.'' Id. government’s provided con time. Thus what the statis- reject We rejected McCleskey spe- tics in lacked: information Supreme tention .Court v. McCleskey in statistical in similar cific to the decisionmaker his case. We are Kemp, and that statistics relating conclude that statistics to the Belmontes’ as of law.” “insufficient a matter entity, therefore charging such as those presented by McCleskey showing The factual made Belmontes, by materially proba- are more materially showing different from the in capital charging tive of discrimination McCleskey, in In made this case. Su Supreme than considered those of a Court reviewed the claim preme McCleskey. Court See States v. United alleged who Georgia prisoner Bass, 2389, 2389, sentencing violated Georgia capital statute (2002). 153 L.Ed.2d 769 of “a (approving Equal Protection Clause because showing regarding the record deci- of. racially a discrimina was administered case”). Thus, respondent’s sionmakers 286, 107 tory manner. 481 U.S. at S.Ct. proffered statistics are not Belmontes’ claim, McCleskey support In of his 1756. by McCleskey may support barred study sophisticated offered a statistical prima showing of charging facie unlawful Georgia defen that demonstrated discrimination. 4.3 whose victims were white were dants question next confront the whether We likely as to receive a death sentence times proffered statistical evidence Id. victims were black. those whose “discriminatory proves effect” under claim, holding that denied his The Court Armstrong. The statistics show that de- did not McCleskey’s statewide statistics victims fendants whose were were- white impo of proving his burden meet charged special with circumstances 30% particu in his penalty sition of the death time, similarly whereas situated defen- product purposeful lar dis case was the dants whose victims were African Ameri- crimination. Id. special can charged or Latino were similarly peti refused to allow We only circumstances 19% and 6% and Arizona sub tioners in California time, Because Belmontes’ respectively. mit that demonstrated racial dis statistics whose statistics revealed individuals imposition of the parities in the death likely victims white were far more were of discrimi penalty statewide as evidence charged capital with a than be offense Carriger case. See nation an individual similarly situated individuals whose vic- Cir.1992) (9th Lewis, v. 971 F.2d non-white, tims we conclude were banc) (en (Arizona); Pulley, Harris Belmontes, dis- requisite established the Cir.1989) (Califor (9th 1354, 1374-75 F.2d criminatory (approving effect. See id. nia). McCleskey, Carriger, and Unlike that assesses whether statistical evidence however, Harris, Belmontes offered statis similarly situated individuals were treated tics that information limited provided differently). entity Joaquin San charging —the however, Armstrong, discrimi- Attorney’s its Under County District Office—and natory enough; effect is not penalty charging practices death over may bring a Armstrong did a defendant selective 107 S.Ct. 1756. not discuss dude that all, prosecution solely claim based on the race issue of the victim's race at nor did victim, McCleskey. majority opinion and that to establish discrimina- even mention case, he question simply tory effect in a race-of-the-victim not before That short, similarly we that Arm- must show that situated individuals Court. are confident were pertinent were of a race strong whose victims different did not intend overrule McCleskey. prosecuted. portion Accordingly, con- we 1128 owner, show the decisionmakers in on entirely prove

must also relied statistics to discriminatory pur- with a City his case acted of San Francisco in engaged Armstrong, 465, Armstrong, See, 517 at pose. U.S. 116 purposeful discrimination. e.g., Here, S.Ct. 1480. Belmontes must show 464-65, 1480; 17 at U.S. 116 S.Ct. 5 Joaquin County that the San District At- McCleskey, 12, at & 481 U.S. 293 n. 107 pursued a torneys Office death sentence in hand, S.Ct. 1756. On the other Court part his “at least in of’ case because evidence, has held that statistical standing Wayte, 610, race of his victim. 470 U.S. at alone, is not enough to out a prima make (internal quotation 105 1524 marks S.Ct. discrimination facie case of respect with to omitted). Because Belmontes offered no a jury’s verdict. McCleskey, See 481 U.S. point, non-statistical evidence we 14, at 294-96 & 295 n. 107 S.Ct. 1756. must decide whether statistical evi- Although language McCleskey suggests a prima showing dence constitutes facie of “impropriety” requiring prosecu- of a an to part intent discriminate on the of tor explain his charging years decision Joaquin County Attorney’s San District made, 17, after it was id. at &296 n. 107 Office. 1756, that, S.Ct. acknowledged Court generally, a petitioner when out makes a Supreme Court has not deter prima discrimination, facie case of prose- a relating mined whether statistics exclu cutor provide explanation. must Id. & sively prosecuting authority to the are suf n. 18.13 ficient, alone, to standing a prima establish we think While that Belmontes’ statis- discriminatory facie claim of intent in a provide tics a strong of capital hand, showing intentional charging case. On the one discrimination, we decide wheth- accepted Court “has statistics as need proof er, case, in a discriminatory charging of sta- intent discriminate certain limited tistics cоntexts,” 293, standing can pri- alone make out a McCleskey, 481 U.S. 107 ma 1756, Assuming arguendo facie case. S.Ct. has appropriate held that they can and that Belmontes has out may enough statistics be made to establish a -prima case, a facie here the prima facie State has case a number- circum provided stances, evidence that is sufficient including to over- challenges compo to the come id., showing. deposition, In jury venire, sition Title VII -prosecutor stated discrimination, 294, that when he employment decided to id. 107 .pursue 1756, a death legislative against S.Ct. sentence Bel- redistricting, Hunt Cromartie, montes, 541, 548-49, prior had reason U.S. believe that (1999), S.Ct. 143 L.Ed.2d the McConnell murder Belmontes had shot contemporaneous challenges a prosecu Jerry short, killed In Howard. See, e.g., prosecutor tor’s acts. Kentucky, pursued Batson v. that he asserted a penalty against Belmontes, death 90 L.Ed.2d 69 not be- (1986). addition, recently alone, the Court has cause of McConnell’s death but be- Hopkins, reaffirmed Yick Wo v. cause he believed that Belmontes had actu- (1886), ally 30 L.Ed. 220 committed than more one murder. which a petitioner, Moreover, Chinese laundry the evidence in the record is charge 13. We note a capital a- process decision a involving deliberative more than Moreover, non-capital rather than a person. offense is far more one unlike the case of a significant important juror challenge, than decision there is full record challenge particular juror. charging A ordinarily deci- relevant events that all contains great made sion is objective deliberation over a upon factors which the decision- period generally product of time and is making would have been based. (White, J., concurring). argues good faith basis to provide sufficient Thus, regime to be a appears penalty death un- there that because the belief. such prose- a convicted, race-neutral reason legitimate, charged, he and der which in this a sentence to seek death cutor indistinguishable is sentenced ev- case, sufficient and therefore particular Furman, his in sentence must struck down of the inference discrimina- to rebut idence unconstitutionally arbitrary be vacated study. by Belmontes’ statistical tion raised capricious. not chal- does important, Belmontes More claim, however, although prose- that the state’s assertion lenge the arbitrary penalty styled as one of death rebut his sufficient to explanation is cutor’s actually claim of charging, arbitrary is a brief, does not facie In prima case. penalty. of the death He does imposition that a defendant is that the fact contend argue prosecutor’s that the decision to reason for is not a valid double murderer special circumstances was charge him with does he nor seeking penalty; the death Rather, he con- arbitrary capricious. that racial that the statistics show argue arbitrary it and capricious tends that was - in respect with to cases disparity exists on him impose penalty the death be- killed, is has or be- which defendant other defendants who had committed cause killed, than victim. more one lieved to have did not more heinous crimes than he re- that, if Bel- conclude even Accordingly, we Supreme penalty. ceive the death sufficient to raise statistics were montes’ rejected this in considered and claim Court purposeful facie case of discrimina- prima 306-12, 107 tion, successfully McCleskey. it 481 U.S. at S.Ct. the State has rebutted legitimate, by controlling are by offering prosecutor’s 1756. As we bound actions. explanation for his (cid:127)race-neutral we must do the same. precedent, deny the racial discrimina- We therefore claim. charging

tion PENALTY ISSUES VII. PHASE A. Error Capriciousness B. Instructional Arbitrariness Charging contends that the trial Belmontes argues, independent also jury prevented judge’s instructions to claim, charging that the his discrimination considering nonstatutory mitigat it from special in his case was so circumstances relating to the likelihood ing circumstances arbitrary capricious that violated life in live constructive that he would to Bel- Eighth According Amendment. positive make contributions prison and montes, crime was one of least possibili granted life without others crimes, yet he death-eligible aggravated of we conclude ty parole. Because only very defendants to was one of few as a probability that is a reasonable there n In penalty. death con- actually receive the error the did of instructional result trast, many committed far defendants who relevant miti constitutionally not consider than he obtained less- more heinous crimes evidence, believe and because we gating Belmontes, punishments.. According to er harmless, grant we the error was not Joaquin disparity shows that San sentencing to the petition respect of his trial there was County the time phase. distinguishing “no basis for meaningful is sentence] few cases in death which[a Background 1. Factual many it is imposed from the cases which trial, gave the judge At Belmontes’ Georgia, not.” Furman (1972) jury instruc- model jury the then-standard 33 L.Ed.2d 346 tions, to eliminate four factors modified account as deciding reasons for not to prosecution agreed and defense impose a death or penalty a death sen- to the case. The jury had no relevance upon tence Mr. Belmontes. You should was therefore instructed: pay careful attention each of these which determining penalty to be Any factors. standing one them alone

imposed you the defendant shall con- may support a decision that death is not ‍‌​‌​​​​​‌​‌​​‌‌​​‌​‌​​​​‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌‍sider all the evidence which has been appropriate punishment in this case. during any part of the received trial of instruction, The other half of the which the case, except you may this as be hereaf- judge to give, refused stated: “[Y]ou consider, You ter instructed. shall take your should not limit consideration of miti- account, guided by into and be the fol- gating circumstances to specific these fac- factors, if lowing applicable: may tors. You any also consider other (a) The circumstances the crime of ... circumstances as for reasons not im- the defendant was which convicted in posing the death sentence.” present proceeding and the exis- After deliberations, several hours of any special tence of circumstances found jury sent judge a asking, note ‘What to be true. happens if a we cannot reach verdict?” and (b) presence The or any absence of majority “Can the imprison- rule on lifе by activity criminal the defendant which ment?” The brought back to the or attempted involved use use of courtroom, and judge portion reread a force or express or violence or im- instructions, of the jury emphasizing that plied threat to use force or violence. jurors “all 12 agree, you must if can.” The (c) or presence any The absence of prior jurors again asked what happen would if felony conviction. they agree, could not but the court refused (d) or not Whether the offense was com- to tell them. mitted while defendant was under The judge jury: asked the you “Do the influence of extreme mental or emo- think if you I allow to continue to discuss tional disturbance. you the matter and go over the (e) or not Whether the defendant acted again another, instructions with one under extreme duress or the substantial possibility making decision is domination of another person. jurors there?” agreed The need- (f) age of the defendant at the time ed more time They to deliberate. then of the crime. asked following of questions: series (g) Any other circumstance which ex- JUROR HERN: The statement about gravity tenuates of the crime even aggravation mitigation though it is legal not excuse for the circumstances, now, crime.14 that was the listing? THE That listing, yes, COURT: was the The judge gave also half of a ma'am. supplemental requested instruction by the JUROR HERN: Of defense. The those certain part given fac- read: tors we were decide one or the other mitigating [T]he circumstances which I and then balance the sheet? for your read consideration are given merely you examples as THE That right. some COURT: is It is a you may factors that take into balancing Meyer? process. Mr. 14. To remain Boyde, consistent with the text of the we will refer to this factor as "factor Supreme (k)'1 statute terminology (k).” Court's or "unadorned factor scheme, statutory In this the im question, specific MEYER: A JUROR (k) of factor cannot be situation, portance overstated. an this be either/or Eighth requires Amendment that a one, you [sic]? cannot the other capital jury mitigating consider all relevant It not that. No. is THE COURT: offered the defendant and af evidence MEYER: It sit- JUROR either/or it weight ford it such deems appropri uation? Johnson, 782, 797, Penny ate. 532 U.S. Exactly. you If can THE COURT: (2001); 150 L.Ed.2d 9 see you If or decision. make that either/ Oklahoma, v: Eddings also cannot, discharge you. I will (1982) 114-15, 71 L.Ed.2d 1 I Could ask HAILSTONE: JUROR (“The may ... sentencer determine the permissi- know if it is I don’t question? weight given mitigating to be relevant evi he could have possible ble. Is may give But it weight [it] dence. no during time? treatment psychiatric by excluding such con [its] something you THE That is COURT: sideration.”); Ohio, v. Lockett 438 U.S. making your consider in decision. cannot 586, 604, 2954, 98 S.Ct. 57 L.Ed.2d 973 (1978) (holding Eighth the Amend 2. Discussion requires ment that the sentencer consider penalty has The death statute factor, any California “as a mitigating aspect of a jury’s the unique guiding any mechanism for defendant’s character or record and of ag of separate Instead of sets of the offense that the discretion. circumstances .circumstances, proffers defendant as a basis for a sen gravating mitigating and death”) origi less than (emphasis test tence an eleven-factor the statute features nal). This broad mandate includes the jury’s attention on the focuses which duty mitigating to consider evidence that background of the crime and specifics probable relatеs to a defendant’s future Tuilaepa of the defendant. and character behavior, that he especially the likelihood 2630, 967, 114 California, v. 512 S.Ct. U.S. danger spared a future if pose would not (1994); 129 L.Ed.2d 750 Cal.Penal Code 190j3. Skipper but incarcerated. v. South Car § The factors instruct first- ten 1, 1669, olina, 4-5, 106 90 476 U.S. S.Ct. of jury evaluate various circumstances (1986). (k) provides the L.Ed.2d 1 Factor age and defendant’s and the crime jury only allowing mechanism for prior See Code convictions. CaLPenal many portion a substantial of de consider jury § The itself decides whether 190.3. indeed, mitigating all fendants’ evidence— mitigat or aggravating these factors are mitigating evidence does not relate Benson, 754, 802, 52 v. Cal.3d ing. People crime or the de the circumstances (1990). 827, Cal.Rptr. 802 P.2d 330 276 criminal age fendant’s and record. (k) factor —factor intend The eleventh —is that will en ed to function as a catch-all muster, pass To constitutional any miti jury to consider relevant able the convey must judge’s trial instructions gating circumstance that defendant (k) it to con jury compels that factor proffers less than as basis for sentence prof mitigating all sider relevant jury obligated weigh death. to. for a fered the defendant as basis mitigating cir aggravating balance the than is not “[I]t sentence less death. impose cumstances and must the death simply to allow defendant enough it the circum penalty mitigating determines evidence to the sentenc present 319, 302, 492 Penny Lynaugh, v. U.S. aggravation outweigh stances in those er.” (1989). 2934, § 109 106 L.Ed.2d 256 Cal.Penal Code 190.3. S.Ct. mitigation. See 1132

Rather, judge’s that, the trial instructions must Court held because the may convey “that the sentencer not be judge instructed the it considering, may from precluded “shall consider all the evidence which consider, any constitutionally refuse to rel- been during any has received part mitigating case,” evant evidence.” Buchanan v. trial of this there nowas reasonable 269, 276, Angelone, 522 U.S. 118 S.Ct. likelihood that the believed that factor (1998), (k) citing Penny, 139 L.Ed.2d 702 prevented 492 it considering back- 317-18, 2934; Eddings, ground U.S. at S.Ct. and character evidence introduced 113-14, Lockett, 869; by Boyde U.S. S.Ct. bearing Boyde’s and its com- 98 S.Ct. 2954. mission of the crime. Id. at 1190 (emphasis original).15 In other trial, At the time of Belmontes’ factor words, Supreme held Court that the (k) “[a]ny allowed the to consider (k), unadorned factor at least when accom- other circumstance which extenuates the panied by an appropriate clarifying in- gravity though crime even is not a struction, was applied constitutional as legal Supreme excuse for the crime.” The mitigating evidence relating the defen- Court had occasion to language review this psychological dant’s make-up history, Boyde California, practically, which if not legally, upon bore (1990). L.Ed.2d 316 his commission of the crime and was of- Boyde, argued the defendant had fered for the purpose reducing his cul- jury instruction was unconstitutional be- pability for the offense. cause there awas reasonable likelihood jury would construe the instruc- type evidence, however, The same of can tion it forbidding considering as evi- serve pur- alternative forward-looking e.g., dence unrelated to the pose, miti- mitigating in a wholly manner unre- crime — gating relating to evidence the defendant’s lated to a petitioner’s culpability for the background However, and character. the crime he committed. pur- This alternative Supreme Cоurt held that because of the pose nothing has to do with persuading the “long by society” view held that a defen- jury that the culpable defendant is less disadvantaged dant with a background respect or with to the crime because of some problems emotional or mental may be aspect “less of family background, personal culpable than defendants who no history, character, have such or mental capacity. excuse,” jury the was reasonably likely Rather, to by Supreme as defined the Court understood the defendant’s Skipper Carolina, evi- v. South jury impoverished dence “his deprived of must a past “eonsider[] defendant’s con- childhood, his inadequacies aas school stu- duct as probable indicative of his future dent, strength and his of character in the behavior” and “draw[] favorable infer- face of these obstacles” could have “exten- ences” about “probable defendant’s fu- of the gravity uate[d] crime even ture if conduct prison.” sentenced to life in though not a legal for 4-5, [wa]s excuse 476 U.S. at 106 S.Ct. 1669(emphasis added).16 Id. crime.” at 381-82 & n. 110 S.Ct. The Court characterized this case, 15. The Court also defined "extenuates” to operative In instant distinction is mean "lessens the seriousness of a crime as categories not- "pre-crime” between by giving an excuse.” Id. at "post-crime” evidence in the sense of when 1190. occurred, the acts that constitute the evidence jury's background but rather between use of attempting Boyde to extend to issues of 16. mitigate and character culpability evidence to conduct, future by focusing the dissent errs crime, opposed for the as use temporal on the nature of evidence rather type same draw favorable infer- purpose than the for which it is introduced.

1133 culpable as portray “an and not himself less than mitigation as inevitable kind of n disadvantaged of criminal element other defendants due to sentenc- undesirable that, though these even and stated ing” background strengths and his character spe- difficulties.”). “would not relate kinds of inferences the face those cifically petitioner’s culpability for Eighth Belmontes contends that his committed, question there no crime he rights Fourteenth Amendment were violat- mitigat- he hut that stick inferences judge’s ed because instructions might as a sense that serve ing failed to advise the consider the than Id. for a sentence less death.” basis portion mitigating of his evidence that added) 4-5, (emphasis at 106 1669 S.Ct. adapt tended to show that would well (citations quotation marks and internal prison and would become a constructive omitted). the Court held that Accordingly, society granted member life sen- may not Eddings, such evidence “[u]nder ' tence. We review this claim of instruction- consider- be from the sentencer’s excluded approach al error under the set forth at 869. The Court’s ation.” Id. S.Ct. Supreme Boyde, Court in which directs opinion Boyde did not address whether us to determine whether there is a reason- interpreted a reasonable would have likelihood that able understood (k) instruction to in- the unadorned factor in a manner that resulted instruction type use same of evidence clude the of this constitutionally in its failure to consider forward-looking purpose which relevant evidence. ameliorating mitigate without serves to Although S.Ct. Belmontes’ briefs n. Boyde, crime. еmphasize judge’s the trial mid-delibera- Boyde from (distinguishing colloquy Hern,17 tion with Juror the Court .ground Boyde’s miti- Skipper on the we has held that must examine claims of gation “was introduced not evidence. light instructional error in record prisoner’ that he was a ‘model demonstrate 377, a whole. Id. 110 S.Ct. 1190. Ac- unlikely to Skipper like and therefore cordingly, assessing Belmontes’ claim of dangerousness but present a risk of future error, strategy ... instructional we consider the entire part petitioner’s as overall 1263, 1274, petitioner's probable U.S. S.Ct. 149 L.Ed.2d enees about future con- 121 can, (2001) as (labeling judge’s duct. This latter use the evidence 178 the trial answer holds, Skipper wholly separate serve as and jury’s question to the mid-deliberation an "in- independent basis for a less than sentence criticizing “did struction” because it Thus, question death. the central is not jury nothing to that the not ensure mis- jury the “was able to whether consider States, led”); Bollenbach v. United mitigating give to all of Belmontes’ effect 607; (1946) (re- 90 L.Ed. 350 evidence,” added), post (emphasis but versing remanding "supple- because a mitigating jury rather what the under- effect the court mental instruction" from fol- .trial permissible be under the stood to instruction by lowing question jury “simply the Skipper requires jury as stated. un- Calderon, wrong”); v. 130 F.3d McDowell mitigat- given be derstand evidence must (9th Cir.1997) (en banc), ovemded ing. petitioner's it bears on effect whether Angelone, grounds, part on other Weeksv. culpability for the crime or instead relates to 145 L.Ed.2d 727 petitioner’s potential future for constructive (2000) duty (explaining judge's that the trial conduct. jury adequately to instruct the "continues un- they a verdict reached and returned. As til reject government's argument 17. We the verdict, jurors stay work towards must exchange the mid-deliberation does not count by in the for them state law. jury channel charted because it was instruction "rather end, guid- may ongoing need To this informal” and occurred after formal Carolina, ance.”). charge. See South Shafer colloquy as likely well as the mid-deliberation future conduct can mitigate serve to original jury instructions. commission or excuse his aof serious Rather, crime. legal the doctrine is a original begin with instructions. We concept peculiar capital punishment above, jury stated Belmontes’ was in- As Thus, cases. in the absence of a clear to consider and take into account structed on point, jurors instruction likely are not “[a]ny other circumstance which extenu- to be in determining aware appropriate gravity though ates the the crime even punishment such cases that the defen- legal it is not a excuse the crime.” potential positive adjustment dant’s for a § Most naturally Cal.Penal Code 190.3.18 to life in prison read, proper constitutes a miti- jury allows instruction gating factor. consider that bears upon evidence commission of the crime the defendant case, important current the most mitigates his culpability and excuses or for part of mitigation presentation We now know that the offense. such evi- was that should spare his life background character, dence includes because had potential, if confined explain why tend to both of which prison within a setting, posi- to contribute By committed crime. its defendant tively prison Although life. the record however, language, plain instruction made before the jury included a substan- encompass not events or does consider- tial amount evidence about his difficult ations that are unrelated to the defen- childhood, in his testimony own he re- culpability. In particular, dant’s the in- peatedly stated that he did not want to use apply struction does those forward- rough childhood “as a crutch” or an looking encompassed by considerations Thus, ultimately excuse. the more signifi- Supreme Skipper: Court’s decision evi- cant evidence related to his during conduct dence allows evaluate the period prior of his CYA incarceration probable future if in- defendant’s conduct ability and to his to conform his behavior life without the possibility carcerated for to societal norms should he be confined parole specifically, that would — within a prison structured environment. prove that likely tend would Belmontes’ counsel argued to the permanently a constructive life if con- live the evidence demonstrated granted that if prison within a structured fined environ- life parole, without he would adapt well to important These sentencing ment. consid- life, prison a positive make contribu- simply in any respect are erations others, tion to the welfare of and would not that “circumstance[s] ] the extenuate[ pose a danger future guards to the or the gravity of crime.” the See Skipper, 476 other inmates. 4, at (stating 106 1669 that lack Unlike the background dangerousness of future does “not relate character Boyde evidence specifically petitioner’s culpability mitigate to for that tended to , committed”); offense, crime the Boyde, the see also Belmontes’ mitigation evi- n. dence simply 110 S.Ct. 1190. More- was by not any covered over, Boyde, “society” unlike in has natural reading of the words of the una- a “long (k) had held view” that a defendant’s dorned factor instruction. To the legislature 18. The California has since refor- offense for which he is on trial." CALJIC 8.85(k) (6th jury ed.1996). mulated the instruction to direct the to People See also v. Eas "any sympathetic aspect ley, consider or other Cal.Rptr. Cal.3d (1983) the or defendant's character record the [that P.2d (recognizing that unadorned (k) offers] defendant as a for a basis sentence less significant factor potential had jury death, confusion.). than whether or not related to the n (k). continued, instruction, judge nat- factor The trial then contrary, read most that [i.e., juror “Any to the reasonable one of them the stand- urally, suggested factors] tending evidence to show support that Belmontes’ alone a decision that ing may good future conduct should probable appropriate punishment death is not the consideration, thus excluded case,” be that implying only statutory this a by the governed that such evidence factor can a sentence less than support jury that the “consider earlier instruction juror A who followed these in- death. you may ... as except the all of likely think that he structions would could least, At the hereafter instructed.” be nonstatutory mitigating consider evi- (k) factor instruction is the unadorned going culpability— dence—evidence not respect Skipper’s re- ambiguous with testimony tending such as to show that permitted to jury that the be quirement Belmontes would lead constructive life effect to evidence bear- give consider and confined permanently within a structured рrobable good future ing on defendant’s Still, in- supplementary environment. the im- it decides whether to conduct when did the structions not end matter. penalty, the see 476 U.S. at pose death problems the Compounding the with respect and thus with original supplemental instructions jury’s to consider Belmontes’ right the judge’s responses were the trial the important mitigating evidence. most jurors’ questions during the mid-delibera- supplemental instructions The court’s colloquy. colloquy, tion In that trial Bel- only problem. this exacerbated judge again jury’s directed the attention to requested montes’ had instructions counsel original literal text of the unadorned expressly instructed would (k) instruction, strongly im- factor which limit consider- jury [its] that it “should not plied jury that the could not consider evi- these mitigating circumstances to ation regarding probable the defendant’s dence i.e., factors,” factors listed specific jury deliberated future conduct. The had However, original al- instruction. it judge sent the for several hours before part though judge gave it deadlocked. indicating note counsel, requested by defense instruction read, if we can- happens The note “What portion. critical give he refused to most majori- not reach verdict?” “Can Instead, judge a set con- gave the trial ty imprisonment?” rule on life tradictory failed inform instructions that followed, judge proper- discussion that portion it could consider ly deliberations ascertained further bearing- mitigating evidence of Belmontes’ sug- fruitful. He then probably be probable conduct. The trial on his future gested might helpful be right track judge started out again instructions one “go over the instructing the that it should view as continued to deliberate. another” statutory “merely examples factors jurors began point It was that it could consider. some the factors” to judge respect with the question to the However, clarity at outset any gained the factors. Juror mitigating and aggravating immediately the was undone of instruction asked, ag- about the Hern “The statement by superceding qualifying a directive. n judge mitigation of the circum- gravation and added, at- pay “You should careful stances, now, listing?” was the When that factors,” an in- tention to each of these affirmatively, she responded court the juror a would struction that reasonable asked, factors we were to “Of those certain certainly have to refer almost understood then balance one or the other and factors, decide statutory particularly to to the unconstitutionally limiting unadorned the sheet?” the

1136 er, questions weigh, only Hern’s reveal that she and balance “those

Juror certain duty understand that her appeared did not as in listing.” factors” that “the Of all juror to of was consider course, such a belief have in- been The most mitigating evidence. reasonable correct; jury required was to consider question an way interpret to her first is as mitigating and evaluate Belmontes’ evi- clarify to jury to that the should look effort relating adjustment potential dence (a) statutory, through (g) factors [or to life in prison regardless the fact that (k)], jury by unadorned as read it in was not listed the statute. judge, to what trial determine counted event, any ques Juror Hern’s aggravating mitigating circumstances. signified tions that she was sure how appears by asking, It that “that judge’s to follow the instructions.19 “When Juror listing?,” Hern wanted confirmation - jury exрlicit makes its difficulties a trial that was a list of there finite factors judge away should clear them con jury consider and list con- accuracy.” crete Bollenbach v. United statutory sisted of the factors read to the States, 607, 612-13, 402, 326 U.S. 66 S.Ct. jury by judge. interpretation This is (1946). case, 90 L.Ed. In this the trial by question: reinforced Juror Hern’s next judge duty any had a ambiguity cure factors, “Of certain we those were to de- by providing his instructions a clear de [e.g., or cide one the other whether the scription jury’s obligations. or aggravating mitigating] evidence judge should have Juror answered Hern’s then balance the sheet?” The structure questions by instructing jury that “the separates the question “certain fac- listing” of mitigating factors was not ex appear listing” tors” that in “the duty haustive and that jury’s that may other factors be reflected that weigh there. It it clear consider and all the mitigating makes least one juror jury believed should consid- presented by evidence Belmontes during Here, Supreme frequently accept- controlling legal 19. The Court principle). has as in cases, jury questions ed questions strength- as evidence the trial those Juror Hern’s original judge’s original en our sup- were not suffi- conviction that the instructions See, plemental ciently e.g., Shafer, convey dear. 121 instructions did not to the ("Shafer’s jury that could jury no consider Belmontes’ left doubt non- about its statutoiy mitigating pertaining gain closing failure to from defense counsel’s probable prison future argument judge's behavior incarcer- any or the instructions clear ated for life. understanding of what life sentence means.”); y. Carolina, Simmons South rely We need not on affirmative evidence of 154, 178, 114 S.Ct. 129 L.Ed.2d jury confusion order to reach this conclu- (1994) ("[T]hat jury this case felt sion, Carolina, Kelly however. See v. South compelled parole to ask whether was avail- 726, 733, 151 L.Ed.2d jurors able shows the' did not know ("Time (2002) appellate after time courts or not a whether life-sentenced defendant will have found instructions to be insufficient- Bollenbach, prison.”); be released from ly any clear without record that man- ("The jury’.s ques- U.S. at 66 S.Ct. 402 confusion.”). ,"A judge's ifested duty its clearly jurors tions ... indicated give is to explain instructions sufficient confused.”). were law, We done so as well. obligation independently that exists E.g., Woodford, Mortis v. 273 F.3d any question jurors any from the or indication (9th Cir.2001) (citing fact asked mid- perplexity part.” on To their Id. hold oth- question deliberation as evidence that it was ability erwise would condition our to redress instruction); original confused United serious constitutional violations such sub- (9th Cir.1999) Frega, States v. jective vagaries F.3d jurors of fate as whether the (stating may a reviewing that court happened question infer from to ask a instead of em- jury's questions the barking.boldly wrong that was path. it confused about down the likely given have would confirmed its Boyde, U.S. sentencing phase. the Cf. Instead, however, misconception. Hern’s affirmed Juror judge simply the question and Juror Hailstone’s the trial terse, “That assumptions incorrect judge’s response troubling are because doing, only he failed to right.” is In so not jury the likelihood that the understood view, Juror Hern’s erroneous but correct larger them context the of the discus- the likely jurors with im- left all the he consider, weigh, to sion about how and they mitiga- could consider pression that aggravating mitigating balance cir- if it as one of only appeared evidence tion case, jury such cumstances.20 listing.” in “the As the “certain factors” judge’s would have inferred from the trial n discussed, principal have Belmontes’ we response that it not consider could Juror does not fall this mitigating evidence question, because Hailstone’s not there category. presented had been no evidence on the trial, subject at but because it raised a jury trial also instructed the judge The consideration that did not relate to one of subject that it could not consider a specific factors” forth in “certain set “the list- adjust relating ability to to Belmontes’ or, differently, it ing,” put one of the after thirty life. Less than seconds prison on bearing culpa- factors the defendant’s inquiry, Juror said: Juror Hern’s Hailstone bility judge’s for the crime. trial re- The know it question? I ask I don’t if “Could likely jury’s sponse thus reinforced that he could possible it permissible. is Is notion that mitigation mistaken during psychiatric treatment this relating to future probable evidence “That judge responded: The time?” trial in a .good conduct confined structured in mak- you cannot consider something is irrelevant prison environment was explain He your did not ing decision.” sentencing decision. issue, not this why jury could consider question this next is whether the immediately issuing after re- jury judge’s relating trial various instructions to resume its sponse, sent off to limitations on the evidence could be The instruction not con- deliberations. jury’s an effect on the de psychiatric future treatment considered had possible sider may reverse the judge’s fail- liberations. We not misleading because in jury jury’s penalty could determination unless the explain why to the not ure actually “a subject; to the ex- structions created reasonable prohibited consider applied has probability jury it could not believed that tent way in a relating challenged pre instruction mitigating consider constitutionally might in a vents the consideration of behave con- how environment, Boyde, relevant prison the instruction evidence.” trolled reason, they lawyers; government trial were not were 20. The insists that evidence, was no answer was obvious: There evi- rules schooled presented topic possible psy- on the dence judge's to know that the trial had no reason trial; at Belmontes' there- chiatric treatment response evidentiary con- was based on an fore, it. could consider (if, fact, it on eviden- cern was based jurors government argues tiary judge’s the trial concern rather than on why they this could have realized that law). misunderstanding of It far more question, not consider Juror Hailstone’s likely viewed would have response judge's die could have had so question and its answer in the manner that reject We no effect their deliberations. we have described. jurors at Belmontes' this contention. The 1138 (cid:127) added).

380, (emphasis (k) 110 1190 instruction, unadorned factor as jury’s must stand “if only decision there is applied case, in Belmontes’ was unconstitu- of such an possibility inhibition.” Id. tional. added). (emphasis Having concluded that an error of that there is a prob- hold reasonable We constitutional magnitude pen infected the that, ability aas result of the in- court’s alty phase trial, of Belmontes’ we turn structions, jury in Belmontes’ ease did finally to question whether that error principal not consider his mitigating evi- was nonetheless Boyde, harmless. See 494 judge began by dence. The trial giving a 380, at U.S. 110 S.Ct. 1190 (applying instruction, faulty one that on its face ar- standard). Brecht harmless error Bel- guably not allow does consideration of mit- montes cannot obtain a new trial unless igating pertaining to the defen- the instructional error had “a substantial probable good dant’s future behavior in injurious jury’s effect” on the verdict. prison, opposed culpability as for the Abrahamson, Brecht v. 637, 507 U.S. rejected significant crime. He then part 113 S.Ct. 1710. We hold that it did. . supplemental of the instruction that Bel- in an proposed appear montes effort to Our cases solve the to be divided as to problem. jurors' understandably were petitioner, state, whether the or nei- confused, questions asked ther bears the responsibility for showing court in an effort to clarify scope of harmless error under the Brecht harmless duty. In the course of their that dialogue, error standard. Compare Rodriguez v. judge the trial endorsed Juror Hern’s view Marshall, (9th 739, Cir.1997) 125 F.3d 744 instructions, a of"the view that strongly (placing burden on petitioner), with Keat jury consider, suggested could Hood, ing 1053, (9th v. 191 F.3d 1062 only weigh, and balance “those certain fac- Cir.1999) (as amended) (placing burden on appeared tors” that “the listing.” Fol- state), and Thompson v. Borg, 74 F.3d endorsement, lowing that the trial judge (9th Cir.1996) 1575 (rejecting bur- jury advised the without explana- further dens of proof in favor of an independent that, decision, making tion its it could determination of whether a trial error had the possibility consider that Belmontes effect). injurious substantial and In a psychiatric could receive treatment in pris- case, recent we stated that Supreme “[t]he sum, every on. instruction that Court has made clear whether a jury received tended to convey the mes- error had a injurious substantial and effect sage that the could not consider Bel- is not to analyzed be in terms burdens montes’ mitigating evidence unless it relat- proof.” Olivarez, 282 Mancuso F.3d culpability ed to his for the crime. Under (9th Cir.), 4 amended, n. as circumstances, is, these least, there at the F.3d (2002), citing O’Neal v. McAn probability reasonable 'the did inch, 432, 436, 115 S.Ct. not consider Belmontes’ principal mitiga- (1995). L.Ed.2d 947 case, In that we fur- tion evidence—the evidence provided ther stated that the reviewing court has the factual support argument “the responsibility to this legal determine mitigation: that he would productive live a question-‘without benefit of such aids permanently life incarcerated in a struc- presumptions or allocated proof tured burdens of environment. Eighth Because “[t]he ” expedite factfinding Amendment requires the trial.’ be able Id. O’Neal, (quoting to consider give effect to all relevant 513 U.S. at 115 S.Ct. 992). mitigating However, evidence offered petitioner,” O’Neal also stated that “it ” Boyde, 377-78, U.S. at is the State that bears the'‘risk of doubt.’

1139 992; candidly that jury told there was 438, cutor O’Neal, 115 Valerio 513 at S.Ct. (9th way of 742, aggravating not a lot evi- 746 Cir. F.3d Crawford, 306 v. denied, jury He to return a 2002)(en dence. asked banc), 538 U.S. cert. (2003). of the circum- death sentence because 695 155 L.Ed.2d crime, Yet the stances of crime itself. only recently, we look Also, we said and was in though shocking deplorable, in us a “fair assurance” the State instill robbery gone wrong. a mur- essence no on verdict. there effect that was it pre-planned, der not nor did involve was Woodford, 336 F.3d Morales v. See torture, victims, Cir.2003) (“[T]he (9th kidnapping, rape, multiple pro- must state especially ele- any or of the other that heinous with a ‘fair assurance’ vide us Brecht.”); present usually that are when a Val ments harmless under error was. short, O’Neal, penalty. 762; for ultimate

erio, also 513 votes at see 306 F.3d (“[T]he of the McConnell murder was kind State 115 S.Ct. 992 in a does not result death generally for the error that normally responsibility bears trial”). penalty.21 the initial Valerio that infected for that proposition and Morales stand circumstances, a these there is Under has us only persuaded if the State probability a in- properly reasonable injurious effect was no substantial or

there spared structed would have Bel- the error harm- the verdict do we find on he life would montes’ had believed Certainly, grave “if one is left less. danger a pose not future sentenced error], of the harmfulness doubt [about and parole, without instead he life Mancuso, cannot the conviction stand.” prisoner who a model could would become (quoting n. 4 Kotteakos F.3d society. of something value contribute States, 750, 765, United pre- concedes that Belmontes The state (1946)). 1239, 90 L.Ed. support evidence in- sented “substantial” witnesses, mitigation this theme. Several need not consider Here we himself, including testified that Belmontes any further. Re proof issue burdens acting appro- he although had difficult rule, we are applicable of the gardless world, priately he thrived in the outside error in the instructional convinced structured, institutional environment case, prevented this which experi- his prison. Belmontes described to Belmontes’ considering giving and effect crew, during fire on the which ence CYA’s evidence, important mitigation had most two, man number rose from last injurious effect substantial leadership responsibility, position of phase of penalty At the jury’s verdict. increasing involve- gradually about his aggravating evidence was this Christianity during prior incar- fact ment in basically It of the strong. consisted spoke Reverend Barrett previously incarcerat ceration. about that Belmontes in the M-2 facility being participation acces Chris- youth in the for ed he felt voluntary manslaugh sponsorship program, which fact to tian sory after the opin- that in ter, incident, genuine, and testified one domestic violence sentence Belmontes granted or ion if a life relating possession, two occurrences pris- make contributions gun. prose- positive possible possession, any Many crimes evi- tence. defendants whose point, Belmontes submitted 21. On that, thirty aggravated substantially who were dence of the defendants more measure were Joaquin felony-murder Coun- in San pen- tried death Belmontes' did receive than two, only ty between 1977 and includ- alty. himself, a death sen- ing received .through County’s his involvement with the racial effect capital charg- on life prison One Belmontes’ most policies, conclude, ing we cannot for the ministries. .of Miller, was important Reverend witnesses we explained, any reasons that - that had been who testified .these occurrences to served violate Bel- counseling young inmates not good at to rights. Thus, montes’ constitutional we mistakes that had made repeat the he and compelled deny are to relief respect with “definitely that used in be the guilt to the phase, including special the prison system activity” for this kind of if However, finding. circumstances because granted parole. life without trial'judge jury the failed to instruct the it required that was consider mitigation of this to importance theme evidence, during closing arguments. principal mitigation stressed and because allocution, responsi- his Belmontes took we conclude that failure had a sub- bility actions and that for his stated he did injurious stantial and effect upon the ver- use his difficult want to childhood as dict, respect we reverse with to the sen- jury give an He asked the him excuse. tencing phase. We remand the district himself, opportunity the to rehabilitate set with court to issue appro- instructions goals, positive contribution to make priate writ vacating Belmontes’ death sen- prison. others in welfare of while His tence. in repeated counsel this theme his emo- part, AFFIRMED in REVERSED in argument, tional in closing which he asked part, and REMANDED for issuance of the spare jury Belmontes’ life on the inwrit opinion. accordance with this ground positive that he would make contri- butions allowed live out natural .O’SCANNLAIN, Judge, Circuit prison. life in concurring in part dissenting part. in aggravating Given the weakness of the The court affirms properly Judge Levi’s evidence and the substantial nature of the determination that there was no constitu- evidence, mitigating we conclude had error tional in Belmontes’s conviction for instructed, jury properly been and had first-degree special murder with circum- it it understood could consider and stances state court. I am pleased to give regarding effect to the evidence Bel- concur in its as to guilt conclusions ability effectively montes’ function in a phase. Regrettably, as to the penalty prison there setting, proba- is reasonable phase, majority mightily strains —and bility that it would have returned a differ- unpersuasively perceive constitutional —to Accordingly, ent verdict. Belmontes is en- error the comprehensive perfectly sentencing titled to relief on the phase. jury proper given by instructions the state judge. there simply Because no

CONCLUSION error, Supreme such and the Court has Although by prose- we are disturbed expressly told two separate us so on occa- cution’s failure to disclose impeaching evi- sions, I respectfully must dissent from the testimony dence and to' correct false on the court’s reversal of the district court’s deni- part witness, principal its well by as petition al for the writ respect defense counsel’s failure to disclose the penalty phase. prior representation extent of of Vas- quez investigation ago, Supreme and to a full Over decade pursue Court Yasquez’s Boyde background, although California, we are at least (1990), ‍‌​‌​​​​​‌​‌​​‌‌​​‌​‌​​​​‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌‍as disturbed of S.Ct. results L.Ed.2d inter- study that showed the discriminatory preted the same instruction at issue jority, by misconstruing Supreme both (k),” “factor and concluded today, The Court constitutionally precedent sound. and the in this Court (k) likeli- no “reasonable case, that there was held factor concludes instruc- (k)] applied [factor ... hood provide an outlet tion failed to consideration way that prevented] in a pen- consider some of Belmontes’s Id. constitutionally relevant evidence.” alty phase evidence. (k)’s 380, 110 1190. Factor consti- recently reaffirmed tutionality was A U.S. -, 125 Payton, 544 Brown majority’s holding The on the based (2005), 1442, 1432, where 161 L.Ed.2d 334 (k) premise that factor the false limits invalidate a refused to again the Court jury’s only consideration to circumstanсes to in- imposed pursuant death sentence supra, that excuse the crime. See might (k). included factor that structions the al- Supreme at 1134. But Court has though result even the reached that Court ready rejected explicitly proposition. this argued to the explicitly had prosecutor (k) Boyde, In the Court held factor .(k) sentencing prohibited that factor jury jury’s did “limit the consideration to considering the defendant’s them from ‘any other circumstances the crime Id. at mitigating evidence. of the gravity which extenuates the crime.’ manages to majority nonetheless jury] any directed the to consider other [It and and reach- distinguish Boyde Payton, crime, that might circumstance excuse the extraordinary conclusion there es the certainly which defendant’s includes jury a reasonable likelihood was 494 background and character.” U.S. mitigating to refused consider (emphases original); 110 S.Ct. the defense prosecution that both (holding see also id. at 110 S.Ct. it. acknowledged properly Be- was before ... likeli “no[ ] that there reasonable was jurors constitutionally were not cause Boyde’s jurors interpreted the hood that making penalty a death deter- barred case, prevent I affirm. to consid mination this would trial court’s instructions mitigating eration of evidence of back-

I character”). Boyde makes ground and penalty phase, At the close of testimony to a relating perfectly clear instructing judge began state court background and pre-crime defendant’s aggravating mitigating on jury’s purview un- character is within the determining follows: “In circumstances as (k). der factor on imposed to be penalty is which presentation penalty phase Belmontes’s you all of the defendant shall consider composed such entirely evidence. during received evidence which has been The witnesses who testified his behalf case, except of the trial any part religious convictions and spoke to his instructed.” you may be hereafter as n a ward of behavior while California read an enumerated list of The court then (“CYA”) Authority which Youth of—all factors, respect exhaustive with seven background and character be- goes circumstances, only but ex- aggravating Steacy. the ma- he murdered While fore mitigating circum- amples respect paint as jority attempts such evidence factors, last of factor stances. The these inmate that he would be model showing consider, (k), “[a]ny instructs the testimony prison, if sentenced to life in which extenuates other circumstance exclusively deals actually presented though it is not of the crime even gravity prior to crime. The ma- with his character legal for the crime.” excuse fact, during Supreme one witness who testified to life in prison. As the Court phase testified to penalty noted, Belmontes’s has of a “Consideration defendant’s after the murder. behavior past probable conduct as of his indicative future behavior is an inevitable and not religious conversion and Belmontes’s undesirable element of criminal sentenc- prison exactly conform to are ability to Carolina, ing.” v. South Skipper Supreme types evidence that the Court 1, 5, (1986) 106 S.Ct. 90 L.Ed.2d 1 plain language of factor held fit within (k). added); Boyde, (emphasis Boyde, see also See (“Petitioner (holding Boyde’s strength U.S. at 110 S.Ct. 1190 had adversity (k) in the faсe of was con- an opportunity through argue factor character gravi- sidered evidence “excused” the background that his and character ‘extenu- (k)). ty of the crime under factor Accord- ated’ or ‘excused’ the seriousness of the ingly, Boyde, under able crime,' we see no reason to believe that give consider -to effect to all of Bel- jurors view, reasonable resist mitigating, Nothing evidence. montes’s by ‘long society,’ held in an appropri- that constitutionally required. more was John ate case such evidence would impo- counsel Texas, 350, 372, son U.S. sition death.”); of a sentence than less cf. (1993) L.Ed.2d 290 (holding that Johnson, 509 U.S. at 113 S.Ct. 2658. give “a jury not] be able effect to [need Thus, the majority while scours the cold every evidence in mitigating conceivable record decades after the trial to find which might manner in the evidence be ambiguity sentencing instruction, in the it relevant”). highly .is jury doubtful that the itself would , so, Even the Court has held Supreme found., have so “Jurors do not sit in soli- dangerousness that into inquiry of future tary isolation booths parsing instructions defendant “is not of an independent as- meaning subtle shades of .in the same of personal culpability.” sessment at Id. way lawyers might.” Boyde, that Johnson, S.Ct. 2658. In the 380-81, I 110 S.Ct. 1190. see no reason Court that an held instruction that asked why jury the would have resisted the inev- jurors consider dangerous- the future itable consideration of Belmontes’s future provided ample ness of a defendant oppor- potential light in of the character evidence jury the tunity for to consider the defen- presented. youth as mitigating dant’s evidence. Id. at 369-70, 113 S.Ct. 2658. Even the though B statutory factor did not explicitly provide jury majority ignores the could also the Supreme consider the defen youth mitigating dant’s as a Court’s factor for advice ... “[d]ifferenees in crime, culpability of the the Court conclud interpretation of may instructions be ed that there was no reasonable likelihood thrashed out the process, deliberative jury thought that the would have it was understanding with commonsense of the from considering foreclosed it. Id. at light instructions of all that has taken place at trial likely prevail over the hairsplitting.” Boyde, technical Likewise, (k) because-factdr the allows (k) 110 S.Ct. 1190. That factor jury to consider Belmontes’s character and permits the consideration background, there is Belmontes’s no reason to think character jury thought amplified the -would evidence is when have it was the whole, from using penalty phase foreclosed such information partic- viewed as a consider his potential future ularly light sentenced arguments the made he could serve as an at 1440 found God how Payton, 125 S.Ct. See counsel. example closing In its the con- to other inmates. whole ... mandates (“Boyde considered”). stated, argument, prosecution “I sus- of the trial be text you ... pect will be told defen- ar- prosecutor explicitly Payton, religious is within that experience dant’s phase that factor penalty during gued (k)] that catchall relates the de- [factor (k) jury to consider permit did not fendant at the time committed the reli- post-crime of the defendant’s evidence crime, gravity extenuates crime. Notwithstanding the Id. conversion. gious I’m really I’m not sure it fits in there. judge’s failure to correct mis- any really of them.” Even sure it fits law, con- Supreme Court statement noted, so, “But I think it proseсutor was not warrant- habeas relief cluded that experience] religious appears [Belmontes’s improbable it was because ed subject proper to be a of consideration.” disregarded sentencing jury would why pre- prosecutor expounded Later the mitigating days two contrast, should consider Belmontes’s evi- Id. In by the defense. sented dence: phase Belmontes’s during penalty

trial, and the defense prosecutor both the you say appro- I can be suppose attorney urged consider such priate consider be- [to evidence] evidence, the trial court mitigating this fashion: The defendant cause—in to consider all likewise instructed may community be of value to later. directed otherwise. evidence unless the people talking You recall the about how 383, 110 Boyde, 494 U.S. at See opportunity he the to would have work Boyde’s (relying in on the'fact part prisoners in And I prison. with other that it “shall consider jury was instructed community think that value to the is which has been received the evidence all in. something you weigh have to of any (emphasis of case” in during part the something to that.1 There’s majority nevertheless con- original)). The pleas Bel- Belmontes’s were similar. jury likely misunderstood cludes that the prison in montes asked for life because repeatedly task after receiv- sentencing its opportunity is to achieve prison “there ing unambiguous the same directions try His goals yourself.” to better attorney, the defense prosecutor, the asking argument, the counsel continued court. spare to Belmontes’s life because jury heard, objection, positive make a contribution jury without evi- he would spared: sug- I am in his life were regarding “[W]hat Belmontes’s behavior dence you hope what I the evi- he had to gesting before murder: how prison particularly jury the fact or later. That's prosecutor’s admonition to the after 1. The only mitigating evi- here because the defense important it must consider Belmontes's sharply you with statements of heard has been about dence contrasts evidence forcefully argued Payton prosecutor, Christianity. who new born this (k) disregard required jury that factor at, mitigating you evidence: all of defendant's getting I am have not heard What past days any legal during the evidence says any few K” other circumstance “[Factor] just you've some gravity mitigation. What is lessens of heard which extenuates or jailhouse your sympathy, to win That to evidence the crime. What does mean?. any okay?—some You have not heard and that's all. me means some factors fact— mitigation in this trial. evidence of at the of the offense that somehow time J., (Souter, Payton, dissent- gravity 125 S.Ct. at 1446 operates reduce the for what the ing). anything It defendant did. doesn’t refer you suggests discretionary is Fernando Bel- conduct making dence decision make it on the I montes cannot outside. on the appropriate penalty. this con- clear from the pretty develop- think it text, there is not a reasonable likelihood undertook, of experi- the kind ment he jurors petitioner’s case -under- compared had with the Haros as ences he stood the instructions challenged pre- out on his own.” being placed He clude of mitigating consideration relevant added: by petitioner.” (emphasis offered you сame in here people who told in original; quotation internal marks omit- They you only him. told what about ted)). . him, they gave you, but they know of as II could, very under the

best difficult somebody looking of circumstances arguendo, Even assuming, there in prison, game the rest of their life jury was a reasonable likelihood that the life, he can plan, do with his something (k) could have interpreted prohib- factor something he’s been able to do. We’re it consideration of Belmontes’s character just suggesting tip iceberg of the witnesses, instructions still were con- 20, 30, 40, because who knows 50 stitutionally sufficient. To arrive at its do, years things what sorts he can as result, majority downplays trial system, into he he fits as learns to instruction, court’s initial in which the goals, something set his to contribute in jury told, “In determining which pen- way whatever can. alty tois be imposed you the defendant prosecutor object At no time did the to the shall consider all the evidence which charactei'ization, defense’s nor did the trial during part has been any received judge parties’ indicate that the statements case, except you may be law were not correct or that the added). hereafter instructed.” (emphasis any could not consider evidence. Such a instruction is constitu- alone Nevertheless, majority concludes that tionally sufficient convey to the its the jury thought that the witnesses wasted duty mitigating to consider all evidence. by testifying, their time and that pros- the Buchanan, 277, See 522 U.S. at 118 S.Ct. Belmontes, ecutor, lawyer Belmontes’s 757 (holding that there was no likelihood of enough were not smart to realize jury confusion when the had to indicate on Payton, were all mistaken. See 125 S.Ct. statutory the verdict form it that had “con- (“for at jury 1440 the to have believed it sidered the in mitigation evidence of the Payton’s mitigating could not consider evi- offense” and the trial court provided the dence, it would have had to believe that following mitigation you instruction: “[I]f phase virtually penalty pur- the served no believe all the evidence that the all”). world, pose In its majority at death penalty justified, not you is then a jury playing a of game “got- envisions shall fix punishment of the defendant lawyers, whereby cha” with the jury Johnson, imprisonment”); at life 509 U.S. everyone ignores applies its own in- 368, at 113 S.Ct. 2658 that (holding jury Such a is pure structions. conclusion fan- instruction that jury stated that the could tasy justify and cannot overturning the all consider the mitigating evidence pre- jury’s choice here. See Buchanan v. An during guilt sented both the and penalty 269, 278-79, gelone, 757, 522 U.S. 118 S.Ct. stage was to (1998) (“The jury sufficient inform the that 139 L.Ed.2d 702 parties in it could agreed effect consider evidence of that there defendant’s was substantial ; youth) mitigating Blystone v. jury Pennsylvania, evidence had 494 to weigh 299, that against petitioner’s evidence 307-08, 1078, U.S. 108

1145 (“In obfuscate the (1990) these sentences somehow case petitioner’s 255 L.Ed.2d clarity court’s to con- of the instructions. instructed jury specifically evidence, any ‘matter sider, mitigating as at look these instructions We must record concerning character or entirety, Boyde, their however. See defendant, of- or the circumstances (“we 378, accept S.Ct. 1190 satisfy to This sufficient fense.’ proposition the outset the well-established (cita- Eighth Amendment.” dictates jury may to a not single that instruction California, omitted)); Tuilaepa tion cf. isolation, judged in artificial but must be in the context of the overall be viewed (1994) (“A sentencer capital L.Ed.2d (internal quotation charge” marks omit- weigh any to not be instructed how need ted)). judge instructed: sentencing the capital fact in particular you I previously read a list of decision.”). aggravating circumstances which the duty simply convey to The trial court’s permits you you law find consider all jury mitigating them any of is established may given be ef- be considered must only aggrava- These evidence. are a defendant’s when deliberates on fect you ting may circumstances that consid- Buchanan, U.S. at capital sentence. er. You are take account allowed any The absence 118 S.Ct. 757. as any facts or circumstances other to consider specific instruction deciding for the death basis ability adjust to an insti- the defendant’s penalty appropriate punish- be an utterly Id. at setting is irrelevant. tutional ment in this case. (“By directing 118 S.Ct. 757 However, mitigating circum- evidence,’ its on ‘all the to base decision your I which have read for con- stances jurors opportu- instruction afforded you merely as given sideration are evidence.”). mitigating nity to consider you factors examples of some of the by the if the were confused Even may take into account reasons individual fac- subsequent enumeration a death deciding impose penalty thinking that its consider- perhaps tors — Bel- upon or a sentence Mr. death limited to mitigating ation of evidence was pay You should careful atten- montes. factors —the confusion would have such Any one of tion to each of these factors. reading After the enu- short lived. been may support a deci- standing them alone instructed, factors, the court merated the appropriate sion death is not which I mitigating circumstances “[T]he punishment this case. given are consideration your have read for con- are read in When these instructions merely examples some the you as of of text, little the court there doubt.that is may that into account as you take factors conveyed that the enumerat- message the impose not a death deciding reasons were, mitigat- exclusive ed factors the Mr. Bel- upon or a sentence penalty death jury the con- ing circumstances that could however, fixates, majority, montes.” The jury court first instructed the sider.- The directive, language the of such not on clear aggravating circum- apply how to the directly that on the two sentences but stances, it could not con- specifically that pay careful attention follow: “You should The any non-enumerated factors.- sider Any factors. one them to each these ag- consideration court .then contrasted support that standing may a decision alone factors, mitigating gravating factors punishment in appropriate is not the death merely “examples it noted were According majority, the which case.” this time, jury the factors” that could At jurors some of individual asked the consider. The the court further fact judge questions. some jury instructed that should consider JUROR HERN: The statement about (recall mitigating each of the factors aggravation and mitigation of the mitigating “factors” refers all circum- circumstances, now, that was the listing? not, majority implies, stances and as the THE yes, COURT: That was the listing, by enumerated circumstances read ma'am. judge), any'one might alone support life JUROR HERN: Of those certain fac- prison, unlikely jury, confuse the tors we were to decide one or the other totality. when viewed in and then balance the sheet? The trial court’s additional instruction THE right. COURT: That is It a is requirement reinforced the constitutional balancing process. conveying jury to the that it is “not ... precluded considering, may from" consider, any refuse to constitutionally rel- JUROR Could I HAILSTONE: ask Buchanan, mitigating evant evidence.” question? I don’t know if it permissi- 522 U.S. at Instead of possible ble. Is it that he could have confusing jury, court’s instruc- psychiatric during treatment this time? tions made clehr all evidence that THE COURT: That is something you presented must be considered. More- cannot consider in making your decision. over, the instruction 8362 that the majority view, majority’s Juror Hern’s use “critical,”

concludes was supra, “listing,” term judge’s and the fail- substantively nothing. adds Rather than ure to note that the “listing” was not ex- speculating jury that the was too dim to clusive as to court, mitigating circumstances, by understand what it was told we presume jury jurors must shows individual were confused understood the instructions taken as whole. Weeks instruction. I respectfully disagree. 225, 234, v. Angelone, 528 U.S. 120 S.Ct. jury did not submit a formal question 727, 145 (2000). L.Ed.2d 727 to the judge to indicate that it was con-

fused as to instructions, its duties or the ( h-H —1 1—I and no informal follow-up questions were however, According majority, to the it is by any jurors. asked And while the an- the series of questions between individual swers the judge gave juror might jurors judge proves and the jury’s cryptic, been they were not incorrect. Cf. confusion. After the deliberated .for States, Bollenbach v. United hours, several it sent judge a note 613, (1946). 90 L.Ed. 350 asking, if happens “What we cannot reach importantly, just Most before judge a verdict?” majority and “Can the rule on answered these informal questions, he life imprisonment?” judge refused to asked the go “to over the instructions tell what would happen again.” Under existing Supreme Court could not agree, but told them that it authority, any regard confusion with to its would discharge them if could not responsibilities would have up been cleared reach agreement. asked, an He then “Do Weeks, with another such review. you See think 528 you if I allow to continue to 233-34, U.S. at 120 S.Ct. 727 (holding discuss the you matter and for go over the no likelihood of again another, instructions with confusion existed one when the that the possibility of a making judge decision is referred back to his original trial there?” when jury instruction the question asked a

1147 themselves). follow-up question asked a some sort. the instructions regarding Nonetheless, if, reviewing the instructions any the And after without basis in rec- jurors still confused were again, ord, once majority the concludes that the consider, they could the evidence about judge’s perfectly proper statement was have for a formal they likely would asked likely to confuse. 727 120

clarification. See id. S.Ct. jury not a (noting that the did submit IV judge referred follow-up question after the jurors majority The concludes the instructions). original to the While back all regarding listened to the evidence in- Bel- after the possible reviewing it is character, prose- montes’s listened to the again, might have structions confusion arisen, reasonably certainly not cution and the tell it it was defense to consider Boyde, evidence, likely. See U.S. such the listened to trial S.Ct. 1190. court it that it all tell must consider the yet presented; majority evidence holds Incredulously, mаjority takes also jury was confused about whether question re- with Juror Hailstone’s issue presented. it could consider evidence receive garding whether Belmontes could conclusion, Such with all due respect, prison. in psychiatric treatment while belief; beyond simply holding such turns jury that it properly court instructed proceeding “into a entire virtual cha- potentially mitigat- such could not consider Boyde, rade.” no 494 U.S. at good And for reason: S.Ct. ing evidence. (internal omitted). any quotation was ever introduced at marks such evidence Indeed, jury stage the trial. reality, jury, in a death returned See prohibited such considerations. Belmontes, sentence for not because of a (9th Borg, Hughes v. 898 F.2d instruction, jury confusing but because he Cir.1990) (“State have federal defendants Steacy nineteen-year-old murdered impartial jury right constitutional an blood, in striking McConnell her 15- cold jurors duty to con- a correlative an 20 times the head with iron dumbbell presented that is only sider brought him to house in he had with her court.”); Corp. also Prod. open see TXO encounter; sincerely I case of such an 443, 468, 113 Corp., Res. Alliance family Steacy and friends of doubt (1993) (Kenne- 2711, 125 L.Ed.2d 366 majority’s callous view would share (“Unlike J., dy, concurring) legislature, “especially was not hei- that her murder may judgments predicated whose be nous.” necessarily guesses and need not educated hearing, grounded facts adduced be surprisingly, prosecution was Not only evi- to consider is bound portray Belmontes a violent able to judg- presented arriving to it in at a dence byman on his behav- young focusing past omitted)). (citations ment.” handgun, theft of a loaded ior: his armed tendency carry a weapon, such his absolutely nothing wrong There fight another ward while in CYA with judge’s instruction that the accessory pleading guilty being after that was could consider evidence voluntary manslaughter, after fact to indeed, presented; have been it would girlfriend, battery pregnant and his him unconstitutional for to have said other- two-year- drop their which caused her Yet, nice- majority ignores such wise. violent,, antisocial daughter. old It is such truly ties. If the were confused behavior, answer, jury instruc- ambiguous judge’s surely would have tion, him in placed the situation he SIMS, Petitioner-Appellant, Michael A. himself.

now finds simply did not Perhaps believe v. murderer might par- be a convicted ROWLAND, James Director of the Cal- inmates, model

ticularly good role to other Department Corrections, ifornia despite testimony Miller’s Reverend Respondent-Appellee. good counseling would be at Belmontes No. 03-17256. repeat other inmates his “mistakes.” all, Steacy’s hardly After murder was United of Appeals, States Court ‍‌​‌​​​​​‌​‌​​‌‌​​‌​‌​​​​‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌‍jailhouse Perhaps “mistake.” Belmontes’s Ninth Circuit. Christianity, mysteri- conversion to which Argued 10, and Submitted Feb. 2005. ously lapsed as soon as he returned society, top and his ascent of CYA’s 20, July 2005. Filed crew, rightly fire could have been seen as

manipulative ploys gain early release for previous Payton, crimes. 125 S.Ct. Cf. 1442 (“Testimony religious about a con year

version spanning one and nine may

months have _ well been considered

altogether insignificant light of the bru

tality crimes, offenses, prior proclivity committing violent acts women.”).

against

.By concluding that the trial court’s unconstitutional,

instructions were the ma-

jority ignores “strong policy against years

rétrials after the first trial where the

claimed error amounts to no more than

speculation.” Boyde, nothing

S.Ct. 1190. There is in the record

which lead me believe that there probability reasonable duties; sentencing

was confused about its

therefore I would affirm the denial of the

petition for the writ as to penalty

phase. respectfully I must dissent from

the majority’s refusal to do so.2 Washington, also contends that was de- 466 ti.S. prived constitutionally (1984); effective counsel Gerlaugh L.Ed.2d 674 Stewart, during penalty stage (9th trial. His 129 F.3d 1035-36 Cir. 1997). claim is without See merit. Strickland v.

Case Details

Case Name: Fernando Belmontes, Jr. v. Jill L. Brown, Warden, for the California State Prison at San Quentin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 15, 2005

Citation: 414 F.3d 1094

Docket Number: 01-99018

Court Abbreviation: 9th Cir.