Thomas Charles Kleve v. D. R. Hill, Warden Cci J. Gomez Attorney General of the State of California Daniel E. Lungren, Attorney General

theft, that Harris had committed the dence mad fraud. reporting,

false argues

Harris also that the court by disallowing

erred more extensive cross

examination of his former co-owner of Har Realty,

Harris Janet Christiano. As Realty apart,

ris fell she started her own Harris interfering

business. sued her for by taking away his em business judge

ployees and clients. allowed

proof prevented of the lawsuit but Harris proving pleadings

from the details of the lawyer underlying facts. Harris’s

not allowed to ask Christiano on cross

whether she was accurate when she de “loyal.” as This limitation

scribed herself

on cross examination was within the discretion, lawyer

court’s because Harris’s prove enough

was allowed to about the bias, materiality

lawsuit show credibility

bearing inquiry into self-description slight,

Christiano’s

and the risk of and undue con confusion

sumption of time were substantial.

AFFIRMED. KLEVE,

Thomas Charles

Petitioner-Appellant, HILL, CCI; Gomez;

D.R. Warden J. At

torney of the State of General Califor

nia; Attorney Lungren, Daniel E.

General, Respondents-Appellees.

No. 97-56182. Appeals,

United States Court of

Ninth Circuit. April

Submitted 1999.1 July

Decided 34(a). panel unanimously R.App. finds this case Fed. P. suit- argument. able for decision without oral See passenger, Clinton

deputy saw his lap map open Calley, had a street jack- in his hidden shotgun partially and a a case of the truck revealed et. A search 9- a semi-automatic containing dagger, a con- magazines two pistol millimeter pistol. A that fit the taining rounds live ad- petitioner of revealed pat-down search pat-A live rounds. ditional 9-millimeter Calley explo- an of revealed down search jacket a pocket. During in his sive device search, found booking officers post-arrest Calley’s with the name a note in wallet Kleve, per, Teha- pro Charles Thomas Hallin, of Hal- physical description a Mark California, for petitioner-appellant. chapi, lin, on non-existent addresses Ram- two (where lived, a Hallin but at hurst Street Wilson, Attorney L. Assistant Douglas address), description of Hallin’s a different California, re- General, Angeles, Los Septem- motorcycle, and the date car and spondents-appellees. Department Sheriffs ber explosive device found determined have been at- Calley’s pocket could motorcycle Hallin’s tached to the starter of motorcycle was and detonated when started. NELSON, D.W. Before: FLETCHER,

FERNANDEZ, Attorney Circuit Angeles District The Los Judges. com- charged petitioner with murder; transporting mit first FLETCHER, Judge: Circuit device; of a silenc- possession destructive ap- Thomas Petitioner Charles firearm; er; permit- carrying a loaded court’s deni- se from the district peals pro At in a vehicle. ting a loaded firearm under 28 U.S.C. petition al his habeas of trial, found him not petitioner’s appeal issue on § 2254. The central silencer, guilty of a but guilty possession of of a petitioner was convicted whether carrying counts of of two misdemeanor he was convicted crime when non-existent two misdemeanor firearm and loaded conspiracy to commit firearm in a a loaded permitting counts of violation unable to reach vehicle. The jurisdiction have Code 182. We Penal remaining charges. Follow- verdict on the hold that 2253. We 28 U.S.C. under retrial, petitioner found a second valid, and we to commit first guilty affirm. but in violation commit second I. § 182.2 Penal Code BACKGROUND unsuccessfully challenged his Petitioner and in several appeal direct Angeles a Los September On Following dismiss- petitions. state habeas Deputy County Sheriffs Department petitions for habeas prior al of federal it had petitioner’s truck stopped exhaust, peti- filed this petitioner failure tag. petitioner As registration expired an court denied the truck, tion in 1996. The district the driver’s got out of side device, der, a destructive possession of by the same Calley was convicted 2. Clinton device. transportation of a destructive mur- jury of re- appeal This followed. We conclude California law has evolved petition. court’s denial. view de novo district time of petitioner’s since the conviction. White, 136 F.3d conclusion, Eslaminia See Under this the California Su Cir.1998). (9th preme Court’s decision Cortez states new, accurately but it does not de

II. the law when petitioner scribe was con event, victed. In that petitioner’s case is DISCUSSION relatively straightforward. California is A. that He Petitioner’s Claim Was Con- change free to its criminal law prospec victed Non-existent Crime tively undermining validity without At time of convic petitioner’s convictions obtained under the old law. 1989, § in tion California Penal Code Harris, 37, 42, Pulley See v. 465 U.S. conspire that when two provided people (1984) 871, (holding 79 L.Ed.2d 29 felony commit a claim based on evolution of state law ais they punishable in the same shall properly matter of state law addressed to manner and to the extent as is same courts); Stone, Wainwright the state v. provided punishment for the of that felo- 21, 23-24, 94 S.Ct. ny. felony is one which If for differ- L.Ed.2d 179 (holding Florida not punishments prescribed ent are for dif- constitutionally compelled to make a new degrees, or court tohich ferent construction of criminal statute retroac shall finds defendant thereof tive); McCarthy, La Rue v. 833 F.2d felony degree determine the defen- (9th Cir.1987) pro 142-43 no (finding due conspired degree dant to commit. If cess violation where the California Su determined, punishment is not so preme changed felony-murder Court prescribed shall be that petitioner’s after rule conviction became degree, except the lesser in the case final); White, see also Fiore v. 149 F.3d murder, conspiracy to commit in (3d Cir.1998) 221, 224-26, (holding n. punishment ivhich case the shall be that apply state courts not new prescribed in the de- statutory interpretation retroactively even gree. interpretation where new announced (italics § Cal.Penal Code indicate lan case), in a co-defendant’s cert. granted, 1955). in guage added The California Su U.S. -, preme year, People Court held last v. (1999). Thus, if Cortez is an evolution of Cortez, Cal.Rptr.2d law, petitioner California cannot success (1998), 960 P.2d 537 that there is no fully attack his conviction based on an crime of to commit second de argument to commit sec gree murder under “[A]ll California law: ond murder was not a crime when conspiracy to commit murder is necessari he was convicted. ly conspiracy deliberated first and ... Second, could conclude Califor- conspiracies punishable all murder are in nia law law has not evolved and the same manner as murder the first by Supreme stated the California Court degree pursuant punishment provi to the the law in also 1989. sions of Penal Code section 182.” Id. at Although the matter is not free from 1237-38, 960 P.2d doubt, there is some basis for that conclu- Relying petitioner contends that sion. We know that to commit second mur not a crime in der was not a crime under California Kynette, v. People 1940. See at the time of his conviction. 731, 744, (1940), 15 Cal.2d 104 P.2d 794 responses grounds, People Sny-

There are overruled on other possible two First, der, 190, 197, contention. we could 324 P.2d 50 Cal.2d the trier of fact to authorizes plainly language punishment relevant finding return verdict provided: §of 182 in the second commit murder conspire to persons] more or [two When of fact fails to deter- Only if the trier felony they ... shall be any commit com- and to mine the manner in the same punishable provided code as one to punished as in this mit murder the same extent Legisla- the commission punishment for the Since felony[.] conspir- the said a verdict of has authorized ture murder, it acy to commit second by as amended Cal.Penal Code that crime to be not believe clearly does Interpret- p. ch. Stats. impossibility. a logical language, Kynette in held that Court 516, n.5, 298, Cal.Rptr. 12 Cal.3d murder can to commit conspiracy a 1300. 524 P.2d murder of the to commit conspiracy be a did not Supreme Court The California for the obvious reason degree first §of two new sentences interpret the necessarily in- agreement to People in decisions again until its recent ‘willful, deliberate, pre- and volves Swain, Cal.Rptr.2d kill human be- intention meditated’ later, (1996), and, years two 909 P.2d ing. Swain, hinted that in In the Court Cortez. 745, 104 P.2d 794. 15 Cal.2d to com- conspiracy no crime of there was legislature added In murder, Horn but the degree mit second language punishment to the two sentences until explicitly repudiated dictum was not sentences, remain § Those which in concluded The Court Cortez Cortez. today, provide: in the statute § 182 in added to that the two sentences felony is one for which different If the for different punishments prescribed are authorize the sub- not intended to [were] jury or court which finds degrees, the conspiracy offense of stantive shall deter- guilty thereof the defendant murder, malice degree express felony defendant degree of the mine the codify instead to intended [were] If is to commit. conspired Kynette by acknowl- holding [the] determined, punishment not so are conspiracies that all murder edging prescribed shall be conspiracy conspiracy equivalent functional case of degree, except the lesser first to commit murder, in which to commit conspiracy murder[.] pre- shall be that punishment case the n.5, Cal.Rptr.2d at 1236 18 Cal.4th for murder scribed did not P.2d 537. The Court by § as amended Code Cal.Penal § interpretation of specify whether its Stats.1955, Nearly p. ch. retroactively. pur- For applied is to later, twenty years the California follows, as- analysis poses of lan interpreted the added in dictum Court retroactive and that that Cortez is sume conspir establishing the crime of guage as degree mur- to commit second degree murder. See acy to commit second petition- not a crime at the time der was Horn, 12 115 Cal. People v. Cal.3d er’s conviction. In a 524 P.2d 1300 Rptr. All murder under California footnote, stated: the Horn Court in aforethought,” which requires “malice that a Kynette’s assertion to kill.” First cludes an “intent always conspiracy commit murder is and delib requires premeditation murder is inconsis- commit first eration, is while second Penal language of present tent with the by premedita absence of characterized language [the] As section 182.... Code Cortez, any Under tion and deliberation. punctuated, it is written and 182] [of (1) conspiracy to commit murder is treated as found that petitioner agree intended to if it were a to commit first murder, had the re- Cortez, According degree murder. con- quired mental state-malice aforethought-to intent” spiracy “specific requir- is crime commit the target crime of murder. Un- agree conspire both “an intent to or Cortez, der this is all that for a target further intent to commit the conviction for to commit mur- object conspiracy.” crime or Id. at Thus, der under California law. 960 P.2d 537. found that petitioner had con- though “target Even crime” in Cortez spired murder, murder, in that case was equivalent was the under Cortez of con- never instructed that it needed to find spiracy to commit murder and premeditation and deliberation in order to punishable as if he had committed convict. The held that Court Cortez so fact, however, long specific as the found intent to petitioner was punished not as if he had murder, conspire to commit mental committed first degree but rather necessary state was suffi- as if he had committed second mur- justify treating any cient to Thus, der. under there was an equivalent commit murder as the of con- in petitioner’s error sentencing, but the spiracy degree to commit first murder. error against worked for rather than peti- explained: The Court tioner. logically follows that [I]t where two or persons conspire more to commit mur- argue Petitioner could that acquittal der-i.e., agree conspire, intend to to fur- charge conspiracy on the to commit first target ther intend to commit the offense degree murder is inconsistent with a con- murder, perform and one or more what, Cortez, viction for under is only in planned overt acts furtherance of the crime for which he could have been con- murder-each has acted with a state of victed-the unitary crime of conspiracy to mind “functionally indistinguishable commit murder. It is petition- true that from premeditating the mental state of acquittal necessarily er’s means that target offense of murder.” The premeditate found he did not and mental state for conviction of respect deliberate with target crime conspiracy to commit murder necessari- mean, however, of murder. This does not ly premeditation establishes and deliber- petitioner could not be convicted of target ation of the offense of murder- what, Cortez, under is conspira- treated as hence all conspiracies murder are con- cy to degree commit first murder. This is murder, spiracies degree to commit first so for either of two reasons. speak. stated, so to accurately More First, may acquittal we understand the conspiracy to commit a uni- murder is on the charge more serious and the convic- tary punishable in every offense instance tion on charge simply the less serious as degree the same manner as is first provision murder under inconsistent verdicts. of Penal United States v. Powell, 57, 64-68, 471, Code section 182. 469 U.S. (1984), holds that an incon- Id. at Cal.Rptr.2d 960 P.2d invalid; sistent verdict is not it (citations omitted). simply is Second, alternatively, inconsistent. We believe that the plausible most inter- may we understand the two verdicts as Cortez, pretation of as applied petition- Though opinion consistent. is not free case, petitioner validly er’s is that was from ambiguity, Cortez can be read to hold conspiracy convicted of to commit murder not that all murder under punished California but was is, fact, conspiracy to commit de- first leniently more than Cortez contemplates. murder, gree may In convicting petitioner but rather murder, degree commit second purposes punishment treated for as the jury acquitted for which of a crime commit first equivalent on the jury’s acquittal reading of this him. Given murder. Under degree charge degree first on the to commit acquittal mur- degree Supreme Court’s first charge to commit did not petitioner der-i.e., finding that its determination murder with conspire to not a crime second here murder-is neither of that conviction, deliberation have no of Kleve’s the time is, reading, under this That there. nor to reverse Kleve’s choice but conspira- crime was actual petitioner’s second murder, but cy to commit is majority “there agree I In the equivalent. functional its rather second conspiracy to commit crime of no Court, it the California words of law.” murder under California autho California, is legislature Cortez, 18 murder, speak.” “so See Peo conduct criminal. rized to make P.2d 537. Mutch, 93 Cal. Cal.3d ple that, if even Cor conclude We therefore (1971); People v. P.2d 633 Rptr. has as it law of California tez states the 1480-81, Smith, Cal.App.4th Kynette decision been since (1997); Bousley v. see also Cal.Rptr.2d 604 a crime under convicted of petitioner was 614, 118 S.Ct. United called The court law. (stating L.Ed.2d 828 conspiracy to commit crime applies the fed principle same that the though even conspiracy to com Whether system). eral conspira today that his us crime tells crime mit second or its cy to commit by the determined must be therefore pun also court in 1989 The equivalent. § 182. Penal terms of California Code a as it had been crime if ished court, by the Horn dictum The mistaken murder, even for second conviction which stated that it should today tells us though Cortez crime, not a did degree murder is second for as a conviction punished have been the of the because change the nature do not be murder. But we to au never intended legislature crime mislabeling petitioner’s lieve it enacted and crime when thorize such a lenien him with undeserved punishing Cortez, 18 People § 182. See v. amended his con invalidating cy basis for provide a n. Cal. altogether. viction Because P.2d 537 Rptr.2d did legislature that the Cortez establishes Claims B. Petitioner’s Other of a crime provide not addi a of has raised number Petitioner at the time commit second claims, depend on his of which none tional conviction, presented we are not Kleve’s was con he argument under Cortez that state must of whether a question sepa In a crime. victed of non-existent its criminal retroactively apply changes in memorandum, affirm unpublished rate law. denying these decision the district court’s claims. it, be the end I should As see this a conviction we held that analysis. Just as reasons, the district foregoing For the “theory on a have been based that could AF- petition court’s denial exist” violated due did not culpability that FIRMED. Bunnell, 998 F.2d Suniga process NELSON, Judge, Circuit D.W. (9th Cir.1993), a Dissenting: in fact crime can- is not something that of due with the dictates squared major- respectfully I dissent spec- a situation “raises process. Such Kleve essentially ity’s opinion finds Id.; ter of fundamental unfairness.” see and limited the circumstances under which Bousley, (noting also 118 S.Ct. at 1610 jury could convict Kleve of the second habeas review can be used to correct situa- degree charge. We must assume that the tions in which a defendant was convicted jury, in acquitting Kleve of the interpretation under an erroneous aof charge and convicting him of the second and, consequently, statute “convicted of an degree charge, followed its instructions. criminal”) act that the law does not make - U.S. -, See Jones v. United (internal quotation marks and citation -, 2090, 2104, L.Ed.2d omitted).1 - (1999). however, majority, The after acknowl- indicates, As Cortez jury instructions edging that conspiracy to commit second internally here were inconsistent.2 The murder —the crime for which jury that, explained instructions in order Kleve was convicted—is not crime under to convict Kleve of law, embarks on some form of murder, jury had to make the thresh- harmless error-like review that allows old determination that possessed recast Kleve’s conviction as a conviction “malice aforethought.” Further, in order to commit first degree mur- to convict Kleve of conspiracy, jury der. inescapable problem with this “specific had to find the intent to agree to inquiry jury is that the acquitted Kleve of public offense of murder.” commit first The Cortez court explained that specif- this It is well established that the Constitution ic intent determination constitutes a find- reserves the determination guilt to the and deliberation. See Louisiana, jury. See Sullivan v. 18 Cal.4th at 77 Cal.Rptr.2d 275, 281, L.Ed.2d 182 733, 960 P.2d 537. (1993). In interpreting jury’s case, equiv- as the “functional Kleve’s was instructed conviction, alent” of a first degree the ma- that it next had to determine the jority erroneously supplants jury’s the murder. was instructed that acquit clear decision to Kleve of the first “deliberate and killing” is degree charge. However, “murder of the first degree.” that, was instructed if “the evi-

First, verdict, when viewed dence is insufficient to establish delibera- light instructions, jury of the indicates that tion and premeditation,” it it should deem found insufficient evidence convict Kleve to be second degree charge. of the first The jury The explicitly instructions distinguished specifically instructions also be- cautioned the tween first and second jury you murders that “if have a reasonable doubt 1. We reached a consistent alleged result in another situation of "inconsistent verdicts.” Supreme context seeking when the Court concluded Kleve is not to attack his second de- 1326(b)(2) § gree that 8 U.S.C. makes the exis conviction on the basis that it cannot be prior aggravated felony tence of a jury's acquittal reconciled with the on the first factor, sentencing but charge, very that the statute does which is a different situa- separate not create a by criminal offense. See tion that was addressed Powell, v. United Court in United States v. Almendarez-Torres U.S. 1219, 1226, (1984). 118 S.Ct. 140 L.Ed.2d 350 Almendarez-Torres, Following argument vacating Kleve's for the second de- 1326(b) consistently gree acquittal reversed nothing convictions has whatsoever to do violating because degree charge. defendants convicted of Simply put, with the first he 1326(b) something had been something convicted of was convicted of that is not a See, e.g., that is not a crime. petitioner attempting United States v. crime. Rather than the Alviso, (9th jury's acquittal 152 F.3d 1199-1200 charge Cir. to use the on one 1998). another, invalidate the on here the majority uses Kleve's conviction on one 2. charge acquittal Because error here was in the formula- to invalidate the on another instructions, jury tion charge. of the we do not have leniency” because he jury’s “undeserved or of of the first such

whether have been convicted give the de should you must degree, the second The fact murder. and re that doubt the benefit fendant of the of the was convicted fixing the murder as that he not remains turn a verdict solely jury majority relies and the instruc- charge, degree.” The possessed finding why. that jury’s indicate plainly tions conspiracy, state for mental requisite supported also conclusion is jury’s indicates, estab which, “necessarily trial, at which presented by the evidence and deliberation.” premeditation lishes The evidence as to Kleve. fairly was weak 733, 960 P.2d Id. at to little more than Kleve amounted against “cau has Supreme Court But the 537. with the obvious in a car presence Kleve’s must be evaluated tioned that instructions unlikely alibi Calley and his ly-culpable of the in the context in isolation but not searching apartment for an they were at -, Jones, U.S. charge.” entire Compare States hours. United for three majority thus (9th Wiseman, Cir. F.3d v. to minimize the attempting errs 1994) conviction of (reversing conspiracy finding: at the same time contrary marijua that was loaded with of car driver had con that Kleve determined marijuana in na, odor of strong despite the evidence necessarily found it spired, car). keep arising from inferences “The lack deliberation and enough to convict company are not ing bad ing. conspiracy.” United a defendant know from Cortez We Ramos-Rascon, 8 F.3d States acted that Kleve have could not believed Wiseman, (9th Cir.1993); see also F.3d a “mere unconsidered basis of on the (“Mere with con association casual intent specific impulse,” rash enough.”). Because people is not spiring logically finding in a inherent explanation, the evi improbable of Kleve’s rash with the sort of reconciled cannot be barely sufficient to may have been dence for a second the basis that form actions degree conviction.3 Even a first sustain See 18 Cal.4th murder conviction. so, that “the evidence remains true P.2d 537. 77 Cal.Rptr.2d wholly is by government submitted absolutely no factual also basis There is explanations.” susceptible innocent had insufficient that Kleve conclusion Wiseman, light F.3d at because Kleve premeditate time very not sub circumstantial entirely approxi- driving around Calley were evidence, surprising it is not stantial Moreover, type of mately three hours. beyond unable to conclude killing— contract alleged here —a expressly had doubt that Kleve reasonable rash deci- to the sort of susceptible agreed to in a second that can result sion this Moreover, noteworthy that it is Therefore, on conviction. based failed to convict jury that the second instructions, jury have must jury Kleve; jury deadlocked the first there insufficient evidence found charge. to commit murder conspiracy or, in premeditation deliberation and of Second, majority’s disagree I with words, that it harbored reasonable other aforethought and that malice suggestion commit whether doubt form a suffi- conspire to specific intent I thus commit mur- to basis for cient majority’s conclusion remarkable the find fully not re- Cortez does der conviction. from the actually benefitted degree conviction if it had upheld a first have must light my conclusion we of occur, occurred, is for a fact we because it it did not in Kleve's reverse conviction under California does not exist crime that authority to the second recast lack the law, sufficiency of I see no need resolve degree conviction. as a first might Although question. we the evidence instructions, solve the case before jury us because the issue when read in their totali- presented there was whether the trial ty, any vitiate such finding. We have no properly give jury court refused to in way resolving the conflict between the struction on second murder. See jury’s antithetical findings that Kleve had 18 Cal.4th specific necessary intent P.2d 537. The Cortez court held that the and that there was insufficient evidence or trial properly court acted because all con a reasonable doubt regarding whether he spiracy to commit murder is first acted with premeditation. deliberation murder. See id. at 77 Cal.Rptr.2d As we stated in Suniga, “we cannot as- 733, 960 P.2d 537. The critical difference sume that the jury simply ignored the that, between this case and Cortez is in [erroneous] instruction.” 998 F.2d at 669. Cortez, there was no second mur Given this uncertainty, we definitely der instruction to create conflict with the cannot say, beyond doubt, a reasonable majori instruction. The Cortez jury that the found necessary elements ty rely jury’s could thus on the uncontra- for a first degree conviction. Neder v. Cf. specific verted finding intent made -, United -, U.S. conspiracy context. 1827, 1834-35, Therefore, that the Cortez court deemed (setting forth the standard for harmless sufficient instructions that required a review).5 error The equivocal tone of the finding of malice aforethought but did not majority opinion to this fact. attests In specifically mention premeditation or de deed, I imagine cannot what more the jury liberation dispositive. is not The malice could have done to indicate that it found aforethought instruction was adequate the evidence on the degree charge only because the already had made be lacking. jury’s Given the decision to the necessary finding acquit on the first degree charge and Cor deliberation in adjudging the defendant ’ tez holding that commit sec conspiracy. See id. The Cortez ond degree crime, murder is not a I cannot expressly court repudiated the dissent’s agree with majority’s affirmance of argument that the lowering court was Kleve’s conviction. The state of mind to convict a person majority usurps a proper jury of conspiracy to commit murder. “We are function, but also faulty guess relies on not concluding [that] work in concluding that Kleve “could” ‘requires only have intent to kill’4—we been are convicted of merely degree charge. instead the first recognizing that mental state required for Constitution “requires ap more than express pellate murder necessarily speculation malice a hypothetical about equates with and establishes the mental ... action an actual find requires state deliberate Sullivan, guilt.” U.S. murder.” Id. at 1232 n. 77 Cal. 113 S.Ct. 2078. Rptr.2d 960 P.2d 537 (emphasis add

ed). Therefore, in order to affirm Kleve’s must, minimum, at a be able say confidence found

that he necessary had the mental state premeditation.

deliberation and Yet the slated, given instructions Kleve's case lion. As I have decision to aforethought defined malice as "an acquit intention Kleve of the only valid crime for which unlawfully being.” to kill a human charged he inquiry. end the should majority speculative nonetheless undertakes course, inquiry Of analysis harmless error that it does not does term harmless error apply analysis here presupposition but of that seems be the "functional doctrine is that there equivalent.” was an actual convic-

Case Details

Case Name: Thomas Charles Kleve v. D. R. Hill, Warden Cci J. Gomez Attorney General of the State of California Daniel E. Lungren, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 30, 1999

Citation: 185 F.3d 1009

Docket Number: 97-56182

Court Abbreviation: 9th Cir.