Brett Pensinger v. Kevin Chappell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRETT PATRICK PENSINGER, No. 12-99006
Petitioner-Appellant,
D.C. No.
v. 2:92-cv-01928-DSF

KEVIN CHAPPELL, Warden,
Respondent-Appellee.

BRETT PATRICK PENSINGER, No. 13-99000
Petitioner-Appellee,
D.C. No.
v. 2:92-cv-01928-DSF

KEVIN CHAPPELL, Warden,
Respondent-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding

Argued October 9, 2014
Submitted June 2, 2015
Pasadena, California

Filed June 2, 2015
2 PENSINGER V. CHAPPELL

Before: Richard C. Tallman, Carlos T. Bea,
and John B. Owens, Circuit Judges.

Opinion by Judge Tallman

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s partial grant and
partial denial of California state prisoner Brett Pensinger’s
pre-AEDPA habeas corpus petition, upholding his kidnapping
and first-degree murder conviction but overturning his
sentence of death.

The panel rejected the State’s request to invoke the
panel’s discretion to sua sponte apply the non-retroactivity
bar under Teague v. Lane, 489 U.S. 288 (1989), which
ordinarily prevents a federal court from granting habeas relief
to a state prisoner based on a rule announced after his
conviction and sentence became final, to bar Pensinger’s
instructional error claim.

The panel rejected the State’s challenge to the district
court’s holding that the trial court violated Pensinger’s
constitutional rights by failing to instruct the jury sua sponte
in accordance with People v. Green, 27 Cal. 3d 1 (1980),
which held that a kidnap-murder special circumstance
requires proof that the kidnapping was committed for an

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PENSINGER V. CHAPPELL 3

independent felonious purpose (i.e., not merely incidental to
the murder). The panel held that instructional error occurred,
and that the error was not harmless.

The panel also rejected Pensinger’s ineffective assistance
of counsel claim based on his trial counsel’s failure to request
a Green instruction, where counsel’s failure to request the
instruction comported with the theory of his defense.

COUNSEL

Jan B. Norman (argued), Los Angeles, California, for
Petitioner-Appellant.

Lise S. Jacobson (argued) and Robin Urbanski, Deputy
Attorneys General; Julie L. Garland, Senior Assistant
Attorney General; Kamala D. Harris, Attorney General of
California, San Diego, California, for Respondent-Appellee.

OPINION

TALLMAN, Circuit Judge:

Brett Patrick Pensinger was convicted of kidnapping and
first-degree murder and sentenced to death in 1982. After his
California state appeals, Pensinger filed a writ of habeas
corpus in federal court prior to the enactment of the Anti-
Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. The
district court granted in part and denied in part Pensinger’s
federal habeas petition, ultimately vacating the kidnap-
murder special circumstance and the death sentence. Both
4 PENSINGER V. CHAPPELL

parties appealed. “[B]ecause in most matters it is more
important that the applicable rule of law be settled than that
it be settled right,” we agree with the district court and uphold
Pensinger’s conviction for the kidnappings and murder but
overturn his sentence of death. Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).

We reject the State’s request that we invoke our discretion
to sua sponte apply the non-retroactivity bar under Teague v.
Lane, 489 U.S. 288 (1989), which ordinarily prevents a
federal court from granting habeas relief to a state prisoner
based on a rule announced after his conviction and sentence
became final, to bar Pensinger’s instructional error claim.
We reject the State’s challenge to the district court’s holding
that the trial court violated Pensinger’s constitutional rights
by failing to instruct the jury sua sponte in accordance with
People v. Green, 27 Cal. 3d 1 (1980). Green held that a
kidnap-murder special circumstance requires proof that the
kidnapping was committed for an independent felonious
purpose (i.e., not merely incidental to the murder). We also
reject Pensinger’s ineffective assistance of counsel claim
based on his trial counsel’s failure to request a Green
instruction. We have jurisdiction under 28 U.S.C. §§ 1291
and 2253, and we affirm the grant of partial habeas relief.

I

A

On August 4, 1981, 19-year-old Brett Pensinger met
Vickie and Michael Melander, Sr., at the Silver Saddle Bar in
Parker, Arizona, near the Colorado River separating Arizona
from California. Pensinger drank and played pool with the
Melanders, who had been drinking there since noon. At
 PENSINGER V. CHAPPELL 5

about 7 p.m., Pensinger drove Vickie to a friend’s home
where she picked up her two children, five-year-old Michael,
Jr., and five-month-old Michele. The four drove off in
Pensinger’s pickup truck around 7:40 p.m. toward the Turtle
Barn Bar in Parker. Vickie and Pensinger went in for another
drink, leaving the children unattended in the truck. While
they were inside, Michael, Jr., found Pensinger’s rifle inside
his truck and pointed it at a passerby in the Turtle Barn
parking lot, who confiscated it. When Vickie came out to
check on the children, Michael, Jr., told her that a man had
stolen Pensinger’s gun.

Vickie testified that when she told Pensinger about the
missing rifle he became so angry that she ran off down the
street. Nonetheless, the four subsequently drove to the Silver
Saddle, where Vickie again left the children unattended in the
truck. She reported to her husband that she and Pensinger
were going to the Yuma County Sheriff’s substation to report
the theft of the rifle. Vickie and Pensinger, still with the
children in the truck, arrived at the sheriff’s substation about
8:20 p.m. Vickie went into the station, expecting Pensinger
to follow. While Vickie reported the theft, she looked out
and noticed that the truck was gone, but assumed that
Pensinger was either looking for his gun or was back at the
Silver Saddle. Around 9 p.m., a Parker City police officer
drove Vickie back to the Silver Saddle. Ten minutes after
arriving Vickie realized that her children were still
unaccounted for and called the police.

A customer and an employee of the P.D.Q. Market in
Parker testified that a tall young man wearing a cowboy hat
came into the store sometime between 8:45 and 9 p.m. on
August 4th. Both witnesses said he was looking for someone
who had stolen a rifle out of his truck while his wife and
6 PENSINGER V. CHAPPELL

five-year-old child were in it. He was reported to be beside
himself with rage, and said that if the person who stole the
gun came in and tried to use it in a robbery of the store, the
store clerk had permission to use the gun to “blow their heads
off.” The store employee saw the man get into a light-colored
pickup and drive off. The witness did not see anyone else in
the truck.

Michael, Jr., confirmed his mother’s testimony at trial.
He further testified that he did not recall stopping at the
P.D.Q. Market, but that after leaving the sheriff’s substation
and driving on a road outside of town Pensinger told him a
cop was following him and that Michael, Jr., should get out
and wait until Pensinger came back. Pensinger never
returned. Later that night at about 9:30 p.m., a couple picked
up Michael, Jr., as he hitchhiked on the roadside near the
Parker Dam on the California side of the river. They called
the Yuma County Sheriff, and waited to meet the deputy in a
restaurant.

Michele’s body was discovered six days later on August
10, 1981, in the Black Meadows Landing Dump in San
Bernardino County, California, some nine miles from where
Michael, Jr., was picked up. The baby girl victim had many
disfiguring injuries, including a crushing blow to the skull
that occurred before death. Michele’s body was partially
decomposed. She had a long diagonal incision from below
the rib cage to above her pubic region, and an egg-shaped cut
between the legs encompassing the location of the vagina,
anus, and surrounding supportive tissue. The uterus was also
missing, likely removed with another long incision below the
rib cage. The pathologist who conducted the autopsy was
unable to determine whether the incisions were made before
or after death, or whether Michele had been sexually
 PENSINGER V. CHAPPELL 7

assaulted because of the missing vagina. Forensic
examination revealed no evidence of semen on the remaining
parts of the body.

B

Pensinger was arrested in Midland, Texas, in mid-August
1981 and charged with kidnapping Michele and Michael, Jr.,
and murdering Michele. Although investigators found a box
of blades for a utility knife in the truck, all tests for blood,
hair, and fibers were negative. It could not be determined
whether a stain on the left front fender of the pickup was
human or animal blood. When the police arrested Pensinger,
he had bloodstains on his pants, shirt, belt, and boots, but the
stains were not compared to the victim’s blood in time for the
trial.

During Pensinger’s pre-trial confinement, more evidence
of Michele’s murder came to light. When Pensinger was
extradited from Texas to Oregon to face unrelated charges
there, he was housed in the Washington County Jail with
Tony Krossman. Krossman testified that Pensinger told him
that he was trying to make bail because he was afraid that
warrants would arrive from Arizona and California charging
him with kidnapping and murder. Pensinger told Krossman
that he had killed someone. The only details Krossman could
remember were that Pensinger said the crime happened in
Parker or Flagstaff, Arizona, and that he was afraid a blonde
woman had seen him in the course of the crime.

After Pensinger was transferred to the San Bernardino
County Jail in September 1981, he was housed in an isolation
unit next to inmate Gary Howard. Howard provided a much
more detailed statement attributed to Pensinger. Howard
8 PENSINGER V. CHAPPELL

testified that Pensinger told him he had picked up a baby in
Arizona and killed her. He drove out of town, and when the
little girl started crying, he slapped her hard enough to break
her ribs, but she did not stop crying. In one conversation
Pensinger said that when he stopped to relieve himself,
Michael, Jr., ran off. In another conversation Pensinger said
that Michael, Jr., was still in the car when he stopped and
tried to force the baby to orally copulate him. Howard also
stated Pensinger told him that he attempted to have sex with
Michele. When he could not do this, he cut her belly and
private parts out. He then drove to a dump, put her in a
plastic bag, and threw her out. He said he cut the baby with
a hunting knife and left her body near Parker Dam. In
another conversation Pensinger said that he had removed the
sex organs to hide the sexual assault and to make it difficult
to identify the baby’s sex.

David Hicks, another jailhouse informant, testified that in
October 1981, Pensinger asked Hicks if he would kill Howard
for $500 because Howard was testifying against Pensinger.
Hicks further recounted that Pensinger told him he had been
drinking with the Melanders on the day of the crime. After
Vickie went into the sheriff’s station to report a stolen rifle,
Pensinger said he drove off because he was frightened about
being in the truck, which Pensinger had stolen from an uncle,
and he feared he had outstanding warrants for his arrest from
Oregon. He stopped in the desert to urinate and the boy ran
off. He drove to a junkyard and “did in” the baby girl. He
tried to have sex with her but she was too small so he cut her.
He put her in a plastic bag and threw her body in the
junkyard. Pensinger told Hicks that he went to the dam and
buried the knife. He told Hicks he had not thrown the knife
into the water, as he had told Howard. Hicks told officers
about the location where Pensinger said he had put the knife.
 PENSINGER V. CHAPPELL 9

Officers later recovered a utility knife handle from that
location in plain sight on a pile of rocks. It was too
weathered to yield any forensic clues.

At trial, all three jailhouse informants denied receiving
any benefit for their testimony, but Howard and Hicks were
substantially discredited during cross-examination. The
investigating officers in the case confirmed that they had
offered Krossman, Howard, and Hicks no benefits for their
testimony.

Pensinger attempted to show at trial that someone else
murdered Michele. The defense case consisted of attacks on
the jailhouse informants and Vickie Melander. Pensinger
took the stand and testified that after driving Vickie to pick
up her children, and stopping at the Turtle Barn Bar, Michael,
Jr., informed them of the stolen rifle. He denied becoming
enraged or that Vickie ever ran from him. Pensinger stated
that he then drove back to the Silver Saddle to see if Vickie’s
husband would help look for the missing weapon. Vickie
asked Pensinger to take her to another bar, the name of which
he did not recall, so she could arrange a place to stay for the
night.

Pensinger insisted that he dropped Vickie and the children
off at the bar, subsequently purchased gas, and stopped and
inquired about his rifle at the P.D.Q. Market. He admitted to
having been upset and telling store employees that if they had
trouble with whoever took the gun, to blow their head off. He
then went into a restaurant and talked to a deputy sheriff he
saw there, who advised Pensinger to report the loss to the
local police. After an unsuccessful search for his rifle,
Pensinger drove to Texas. He denied making any confessions
to the three jailhouse informants.
10 PENSINGER V. CHAPPELL

At closing, the State argued that when Pensinger left the
sheriff’s substation, he did not have in mind kidnapping the
children or murdering Michele. The prosecutor contended
that Pensinger’s sole intention at that point was to look for the
rifle. It was only after talking to the store clerk that Pensinger
“finally decided he’s going to take matters into his own hands
and strike back. And that’s the point where he kidnaps
Michael and Michele.” The prosecutor did not specify how
Pensinger intended to strike back. However, as to the sexual
offense charges, the prosecutor argued that he:

would rather believe that this sex stuff didn’t
happen. And I really never have strongly
argued that it did. [¶] But . . . [h]ow can I say
there’s no evidence of sexual misconduct
when the baby is missing her sexual organs?
. . . So then you start asking yourself why did
he do it. And you get into these sexual
implications. And we always considered that
but could never put it together until Howard
and Hicks came forward and he’s telling them
about the sexual angle. That’s why those
charges are there.

Neither the defense nor the prosecution’s theory of the
case turned on whether Michele’s murder advanced the
independent felonious intent of kidnapping.

On August 3, 1982, a California jury convicted Pensinger
of two counts of kidnapping and one count of first-degree
murder. The jury also found true two special circumstances
making Pensinger death-eligible: (1) murder committed in the
course of a kidnapping, and (2) murder with the intent to
torture the victim. The jury, however, rejected two other
 PENSINGER V. CHAPPELL 11

special circumstances: (1) murder in the commission of a
lewd act on a child under the age of 14, and (2) murder
committed in the course of oral copulation in violation of
California Penal Code § 288a.

At issue here are the kidnap-murder special circumstance
jury instructions. The trial court instructed the jury using
California Criminal Jury Instruction (CALJIC) No. 8.81.171:

If you find the defendant in this case guilty of
murder of the first degree, you must then
determine if the murder was committed under
one or more of the following special
circumstances: One, while said defendant,
Brett Patrick Pensinger, also known as
Panama Red, was engaged in kidnap[p]ing in
violation of California Penal Code Section
207.

The trial court did not include, nor did Pensinger’s trial
counsel request, paragraph 2 of section 8.81.17 of the
CALJIC, which codifies the California Supreme Court’s
ruling in People v. Green,2 requiring an independent
felonious purpose. The second paragraph of the jury
instruction reads as follows:

The murder was committed in order to carry
out or advance the commission of the crime of
[kidnapping] or to facilitate the escape

1
At the time of Pensinger’s trial in 1982, the trial court used CALJIC
No. 8.81.17, Fourth Edition 1980 Rev.
2
27 Cal. 3d 1 (1980).
12 PENSINGER V. CHAPPELL

therefrom or to avoid detection. In other
words, the special circumstance referred to in
these instructions is not established if the
[kidnapping] was merely incidental to the
commission of the murder.

CALJIC No. 8.81.17(2). Without the benefit of paragraph 2,
the jury found true the kidnap-murder special circumstance
and subsequently sentenced Pensinger to death.

C

Pensinger filed his opening brief on direct appeal on April
8, 1985. He filed his first state habeas petition on June 3,
1985. Five years later, in an opinion deciding the direct
appeal and habeas petition, the California Supreme Court
affirmed Pensinger’s convictions, the kidnap-murder special
circumstance finding, and the penalty determination. People
v. Pensinger, 52 Cal. 3d 1210, 1229, 1257 (1991). However,
it reversed Pensinger’s torture-murder special circumstance
because the jury was not instructed that the special
circumstance required proof of intent to inflict torture. Id. at
1254–55. The court otherwise denied relief on the habeas
petition. Id. at 1282. On October 21, 1991, the U.S. Supreme
Court denied Pensinger’s petition for a writ of certiorari.
Pensinger v. California, 502 U.S. 930 (1991).

D

Pensinger initiated his federal habeas proceedings on July
13, 1994. The district court stayed the proceedings pending
Pensinger’s filing of his state habeas corpus petition to
exhaust certain claims. On July 26, 2000, the California
 PENSINGER V. CHAPPELL 13

Supreme Court denied Pensinger’s state habeas petitions on
the unexhausted claims.

The district court then lifted the stay of the federal
proceedings, and Pensinger filed an amended petition on
October 2, 2000. Ultimately, the district court issued an order
granting in part and denying in part Pensinger’s habeas
petition. Pensinger v. Chappell, No. CV-92-1928-DSF (C.D.
Cal. Nov. 30, 2012). The district court denied twenty-four
claims, dismissed as moot an additional thirty-five, but
granted relief on one claim. On that claim (Claim 24), it held
that the superior court violated Pensinger’s constitutional
rights by failing to instruct the jury sua sponte in compliance
with People v. Green, that a kidnap-murder special
circumstance requires proof that the kidnapping was
committed for an independent felonious purpose (i.e., not
merely incidental to the murder). As a result, the district
court vacated the kidnap-murder special circumstance and the
death sentence. The district court granted a limited certificate
of appealability with respect to one subclaim (Claim 12(BB))
on whether Pensinger’s trial counsel was ineffective in failing
to request a jury instruction in accordance with People v.
Green. The district court denied a certificate of appealability
for twenty-six other claims.

Pensinger appeals the district court’s ruling on Claim
12(BB) and requests that the panel expand the certificate of
appealability to include a multitude of other claims.3 The

3
We decline to expand the certificate of appealability to include
Pensinger’s uncertified claims because Petitioner has not made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2012); see Slack v. McDaniel, 529 U.S. 473, 483 (2000).
14 PENSINGER V. CHAPPELL

State filed a cross-appeal challenging the grant of relief under
Claim 24.

II

We review denials of habeas petitions de novo. Rhoades
v. Henry, 598 F.3d 495, 500 (9th Cir. 2010). AEDPA does
not apply here because Pensinger’s original federal petition,
filed in 1994, preceded AEDPA’s enactment. See Woodford
v. Garceau, 538 U.S. 202, 210 (2003) (holding that AEDPA’s
application depends on whether the petitioner filed an
application for habeas relief seeking an adjudication on the
merits after AEDPA’s effective date); see also Lindh v.
Murphy, 521 U.S. 320, 322–23 (1997).

Under the pre-AEDPA standards of review, we review de
novo questions of law and mixed questions of law and fact.
See Williams v. Taylor, 529 U.S. 362, 402 (2000) (“Under the
federal habeas statute as it stood in 1992, then, our precedents
dictated that a federal court should grant a state prisoner’s
petition for habeas relief if that court were to conclude in its
independent judgment that the relevant state court had erred
on a question of constitutional law or on a mixed
constitutional question.”); Robinson v. Schriro, 595 F.3d
1086, 1099 (9th Cir. 2010) (explaining that under
pre-AEDPA law, federal courts owe no deference to a state
court’s resolution of law or mixed questions of law and fact).
However, “we presume that state court determinations of
historical fact are correct.” Payton v. Woodford, 299 F.3d
815, 822 (9th Cir. 2002) (en banc), vacated on other grounds
by 538 U.S. 975 (2003); see also 28 U.S.C. § 2254(d) (1994);
Woratzeck v. Stewart, 97 F.3d 329, 332 (9th Cir. 1996);
McKenna v. McDaniel, 65 F.3d 1483, 1490 (9th Cir. 1995).
 PENSINGER V. CHAPPELL 15

Here, the California Supreme Court’s ruling on whether
or not the Green instruction applies is a question of law
reviewed de novo.

III

Before addressing the merits of the habeas petition, we
consider the State’s request that we exercise our discretion to
invoke sua sponte the non-retroactivity bar of Teague v.
Lane. Teague bars a federal court from retroactively applying
“new constitutional rules of criminal procedure” on collateral
review. 489 U.S. at 310. If we were to invoke our discretion,
we would need to determine whether Green’s “independent
felonious purpose” element for a kidnap-murder special
circumstance, see Williams v. Calderon, 52 F.3d 1465, 1476
(9th Cir. 1995), would constitute a new constitutional rule of
criminal procedure under Teague. Following oral argument,
we requested supplemental briefing to address (1) what
factors should inform our consideration whether to exercise
our discretion to invoke Teague if we found waiver by the
State; and (2) if we decided nonetheless to exercise our
discretion, whether a Teague exception applied in light of
Webster v. Woodford, 369 F.3d 1062, 1067–69 & n.2 (9th
Cir. 2004), Gilmore v. Taylor, 508 U.S. 333, 339–45 (1993),
Lambrix v. Singletary, 520 U.S. 518, 539–40 (1997), and
Clark v. Brown, 450 F.3d 898, 904–09 (9th Cir. 2006).

“[C]ourts of appeals have [the] discretion, but are not
required, to address a Teague defense raised for the first time
on appeal (or, perhaps, even in a petition for rehearing).”
Boardman v. Estelle, 957 F.2d 1523, 1536–37 (9th Cir.
1992); see Collins v. Youngblood, 497 U.S. 37, 41 (1990)
(“Although the Teague rule is grounded in important
considerations of federal-state relations, we think it is not
16 PENSINGER V. CHAPPELL

‘jurisdictional’ in the sense that this Court, despite a limited
grant of certiorari, must raise and decide the issue sua
sponte.”). Here, despite numerous opportunities to do so, the
state repeatedly failed to raise the Teague defense as to the
Green error. First, the state did not mention the defense as to
Claim 24 in its answer to Pensinger’s first amended habeas
petition before the district court, even though it argued
Teague as to several other claims in its answer. See Schiro v.
Farley, 510 U.S. 222, 228–29 (1994); Duckett v. Godinez,
67 F.3d 734, 746 n.6 (9th Cir. 1995) (a state waives the
Teague defense by not raising it in district court). Then, a full
year prior to ruling on Pensinger’s petition, the district court
requested supplemental briefing “on the merits of Petitioner’s
Claim 24 and on any procedural bar(s) to the claim.”
(Emphasis added). The State’s supplemental
briefing—again—failed to raise Teague as a procedural bar.
Finally, following the district court’s grant of Pensinger’s
petition on the basis of Claim 24, the State raised Teague in
its motion to alter the judgment.

On this appeal, the State once again failed to properly
allege its Teague defense. The State’s appellate brief raises
Teague “only in passing” in a single paragraph towards the
end of the brief without identifying “the new rule of
constitutional law[,] . . . why such a rule would not have been
compelled by existing precedent . . . , [and] why the rule
contended for is not within one of Teague’s exceptions.”
Arredondo v. Ortiz, 365 F.3d 778, 781–82 (9th Cir. 2004) (“If
a state seriously wishes to press Teague upon us, at a
minimum Teague should be identified as an issue (indeed, the
first issue) on appeal.”). In response to our request for
supplemental briefing, the State admitted that it did not
comply with the strictures of Arredondo in asserting the
Teague defense on appeal.
 PENSINGER V. CHAPPELL 17

In fairness, and despite Pensinger’s valid conviction for
Michele’s murder and the kidnapping charges, on this record
we cannot save the State from its repeated mistakes. Thrice
the State “inadvertently” failed to properly assert Teague.
The State offers no excuse for failing to raise Teague below.
Nor does the State offer an excuse for failing to comply with
Arredondo on appeal to us.

Its arguments to support our exercise of discretion are
likewise unavailing. The State argues that failure to consider
Teague would be “pointless” because Pensinger would not be
entitled to a Green instruction on retrial based on the
California Supreme Court’s current interpretation of when the
Eighth Amendment triggers the independent felonious intent
requirement in the kidnap-murder special circumstance
statute. While it is true that “the views of the federal courts
of appeals do not bind the California Supreme Court when it
decides a federal constitutional question,” Johnson v.
Williams, ___ U.S. ___, 133 S. Ct. 1088, 1098, reh’g denied,
133 S. Ct. 1858 (2013), “[t]he granting of a new trial places
the parties in the same position as if no trial had been had,”
Cal. Penal Code § 1180 (West 2015). In other words,
Pensinger could present new evidence and arguments that
would warrant a Green instruction under California’s
interpretation of the Eighth Amendment. Furthermore, the
State’s argument that a retrial of the special circumstance and
penalty phase in a 33-year-old case would be costly is
disingenuous—while we are sympathetic to the dilemma, the
problem is one of its own making.

Given the extent of the State’s persistent waiver, its lack
of adequate explanation, and unconvincing arguments in
supplemental briefing, we decline to reach the Teague bar sua
sponte. See Godinez v. Moran, 509 U.S. 389, 397 n.8 (1993)
18 PENSINGER V. CHAPPELL

(declining to reach Teague defense “because petitioner [State
warden] did not raise a Teague defense in the lower courts or
in his petition for certiorari”); see also Schiro, 510 U.S. at
229 (same); Arredondo, 365 F.3d at 781 (declining to address
Teague defense because it was “simply mentioned but not
argued” (citation omitted)); Garceau v. Woodford, 281 F.3d
919, 920 (9th Cir. 2002). As a result, our decision in
Williams v. Calderon controls our review of Pensinger’s pre-
AEDPA federal habeas petition. 52 F.3d 1465.

IV

On the merits, the State challenges the district court’s
holding that the trial court violated Pensinger’s constitutional
rights by failing to instruct the jury sua sponte that—in order
to find the kidnap-murder special circumstance true—there
must be proof that the kidnapping was committed for an
independent felonious purpose. Alternatively, even if a
Green instruction was constitutionally required, the State
contends the error was harmless. We agree with the district
court that an instructional error occurred which was
prejudicial, and affirm its grant of relief on the basis of Claim
24.

A

California’s death penalty statute requires the jury to find
the existence of special circumstances to distinguish between
defendants who are eligible for the death penalty and those
who are not. See Cal. Penal Code § 190.2 (1978); Williams,
52 F.3d at 1475–76; Green, 27 Cal. 3d at 61. The felony-
murder special circumstance applies to those murders
“committed while the defendant was engaged in . . . the
commission of . . . or the immediate flight after committing”
 PENSINGER V. CHAPPELL 19

one of certain enumerated felonies, including kidnapping.
Cal. Penal Code § 190.2(a)(17)(B). At the time of
Pensinger’s offense (1981) and trial (1982), the
felony-murder special circumstance already required that the
defendant have “an independent felonious purpose.” Green,
27 Cal. 3d at 61; see Clark, 450 F.3d at 915 (holding that
Clark was constitutionally entitled to a Green instruction
because Clark committed his crime in January 1982 and “the
CALJIC instruction in place at the time of trial . . . had
specifically incorporated Green’s holding”).

The California Supreme Court developed this independent
felonious purpose requirement to comply with the U.S.
Supreme Court’s rulings in Furman v. Georgia, 408 U.S. 238
(1972), and Gregg v. Georgia, 428 U.S. 153 (1976). There,
the Supreme Court found unconstitutional under the Eighth
and Fourteenth Amendments death sentences imposed under
statutes that left juries with untrammeled discretion to impose
or withhold the death penalty. Furman, 408 U.S. at 313
(White, J., concurring); Gregg, 428 U.S. at 189, 199. Furman
and Gregg held that imposition of the death penalty should
compel the jury to “focus on the particularized circumstances
of the crime and the defendant” in order to reduce “the risk of
wholly arbitrary and capricious” death sentences. Gregg,
428 U.S. at 189, 199.

Guided by Furman and Gregg, Green explained that
California’s felony-murder special circumstance statute
“expressed a legislative belief that it was not
unconstitutionally arbitrary to expose to the death penalty
those defendants who killed in cold blood in order to advance
an independent felonious purpose, e.g., who carried out an
execution-style slaying of the victim of or witness to a
holdup, a kidnap[p]ing, or a rape.” Green, 27 Cal. 3d at 61.
20 PENSINGER V. CHAPPELL

In other words, “Green held that a felony whose ‘sole object
is to facilitate or conceal the primary crime’ of murder is
‘incidental,’ and therefore does not qualify a defendant for the
death penalty under the special circumstance statute.” Clark,
450 F.3d at 905–06 (emphasis added) (citing Green, 27 Cal.
3d at 61). Thus, “under Green, a felony qualifie[s] under the
special circumstance statute only if two requirements [a]re
satisfied: (1) the felony, such as robbery or arson, must have
been committed for a purpose ‘independent’ of the murder,
and (2) the murder must have been committed in order to
advance that ‘independent felonious purpose.’” Id. at 910;
see also Phillips v. Ornoski, 673 F.3d 1168, 1193 (9th Cir.
2012).

For instance, in Clark under the defendant’s theory of the
case, “he set the fires [to the home] only for the purpose of
driving David Gawronski out of the house so that he could
shoot him.” Clark, 450 F.3d at 908. Clark argued that he did
not have an “an independent felonious purpose in committing
arson.” Id. (internal quotation marks omitted). We held
“Clark was entitled to an instruction that told the jury he was
not guilty of the special circumstance if the arson was a
felony whose ‘sole object [was] to facilitate . . . the primary
crime’ of murder.” Id. (citing Green, 27 Cal.3d at 61).

Similarly, in Green, a husband killed his wife and
subsequently took her clothes, rings and purse in order to
conceal her identity. Green, 27 Cal. 3d at 55. “The
California Supreme Court held that this felonious robbery of
the wife’s belongings was insufficient to support a
felony-murder special circumstance conviction because
Green did not commit the robbery for a reason independent
of the murder, and then commit the murder to advance the
purpose of committing the robbery.” Clark, 450 F.3d at 906.
 PENSINGER V. CHAPPELL 21

“Rather, Green committed the robbery in order to facilitate or
conceal the murder.” Id. “In other words, the robbery was
‘incidental’ to the murder.” Id.

However, since the Green decision, the California
Supreme Court has narrowed the application of the Green
instruction, while the Ninth Circuit has adopted Green’s
broad holding. Compare People v. Kimble, 44 Cal. 3d 480,
501 (1988), with Williams, 52 F.3d at 1476, and Clark,
450 F.3d at 910–11 (“[T]he California Supreme Court
significantly changed the first requirement and entirely
dispensed with the second . . . that the murder have the
purpose of advancing the ‘independent felonious purpose’ of
the arson.”).

Under California’s current interpretation of Furman,
Gregg, and the Eighth Amendment, a Green instruction is not
always required. The California Supreme Court has held that
the Green instruction “does not set out a separate element of
the special circumstance” but rather acts to clarify that the
murder must have taken place in furtherance of the
accompanying special-circumstance felony. People v.
Harris, 43 Cal. 4th 1269, 1299 (2008); see Kimble, 44 Cal. 3d
at 501 (“[W]e reject the dissent’s novel suggestion that
Green’s clarification of the scope of felony-murder special
circumstances has somehow become an ‘element’ of such
special circumstances, on which the jury must be instructed
in all cases . . . .”); People v. Monterroso, 34 Cal. 4th 743,
767 (2004). This is important because “[a] trial court has a
sua sponte duty to instruct the jury on the essential elements
of a special circumstance allegation.” People v. Mil, 53 Cal.
4th 400, 409 (2012) (internal citations omitted).
22 PENSINGER V. CHAPPELL

The State heavily relies on California’s current
interpretation to support the contention that no Eighth
Amendment violation occurred in instructing the jury.
Because the Green instruction (i.e., the second paragraph of
CALJIC No. 8.81.17) does not constitute an element of the
crime of special-circumstances murder, the State argues that
the instruction is necessary only in limited circumstances. In
support of its argument the State notes that the California
Supreme Court has previously held that “a trial court has no
duty to instruct on the second paragraph of CALJIC No.
8.81.17 unless the evidence supports an inference that the
defendant might have intended to murder the victim without
having had an independent intent to commit the specified
felony.” People v. D’Arcy, 48 Cal. 4th 257, 297 (2010).

However, the State fails to meaningfully distinguish the
case we must follow, Williams v. Calderon, 52 F.3d 1465. In
Williams, the petitioner challenged the kidnap-murder special
circumstance, arguing that the trial court erred by failing to
provide the jury a Green instruction and therefore “the jury’s
finding this circumstance true was [] invalid.” Id. at 1475.
We agreed that an “instructional error occurred” and
interpreted the Green decision as requiring an instruction on
the independent felonious purpose. Id. at 1475–76. We
further characterized the Green instruction as a
“constitutional necessity, not mere state law nicety, for
without this narrowing construction, the special circumstance
would run afoul” of Furman and Gregg. Id. at 1476.

The State attempts to distinguish Williams by arguing that
we did not reach the issue of whether or not a Green
instruction was necessary in all special circumstance cases.
A careful reading of the case, however, persuades us that
Williams did indeed reach such a conclusion. Similar to the
 PENSINGER V. CHAPPELL 23

trial court in Pensinger, the trial court in Williams gave a jury
instruction commensurate with the first paragraph of CALJIC
No. 8.81.17, but omitted the second paragraph of that
instruction.4 Williams v. Vasquez, 817 F. Supp. 1443, 1482
(E.D. Cal. 1993). Considering our view of the Green
instruction as a “constitutional necessity” in combination with
the holding that an “instructional error occurred” when the
trial court gave only the first half of CALJIC No. 8.81.17,
Williams implicitly held that both paragraphs of CALJIC No.
8.81.17 were necessary to fulfill the strictures of Furman and
Gregg.5 Therefore, because Pensinger’s kidnap-murder

4
The instruction given in Williams was:

[i]t is further charged that [defendant] was personally
present and physically aided or committed the acts
causing the death of Lourdes Meza and that the murder
of Lourdes Meza was willful, deliberate and
premeditated and was committed during the
commission or attempted commission of kidnapping in
violation of Section 207 of the California Penal Code.

Williams v. Vasquez, 817 F. Supp. at 1482. The instruction in Pensinger
was:

If you find the defendant in this case guilty of murder
of the first degree, you must then determine if the
murder was committed under one or more of the
following special circumstances: One, while said
defendant, Brett Patrick Pensinger, also known as
Panama Red, was engaged in kidnap[p]ing in violation
of California Penal Code Section 207.
5
We are not alone in interpreting Green as requiring an independent
felonious purpose instruction in all felony-murder cases to comply with
the Constitution. See Kimble, 44 Cal. 3d at 517 (Mosk, J., dissenting) (“In
Green, the court squarely held that the felony-murder special circumstance
must be construed to require a finding of independent felonious purpose.
24 PENSINGER V. CHAPPELL

special circumstance jury instructions failed to comport with
Furman, Gregg, Green, and Williams, the district court
correctly concluded that an instructional error occurred.

“Where the error involves a failure to provide a narrowing
instruction on a death special circumstance, we begin by
asking whether it can be concluded, in light of the other
instructions, that the jury necessarily found the omitted
narrowing element.” Williams, 52 F.3d at 1476. Though not
clear from its brief, the State seems to argue that because the
jury was instructed on the elements of first-degree murder
and kidnapping separately from the requirement for a special
circumstance murder, the jury necessarily found the
independent felonious intent. We found a similar argument
insufficient in Williams and we are bound by that holding to
reach the same conclusion here. See Williams, 52 F.3d at
1476.

Under Williams, where there is more than one plausible
explanation for the defendant’s actions, we cannot conclude
that the jury necessarily made the required independent
felonious purpose finding. Id. at 1476–77. Here, the district
court found that under the kidnapping jury instruction, the
jury could have convicted Pensinger of Michele’s kidnapping
because it believed Pensinger kidnapped her “to inflict
death”—under these facts, to murder Michele, Pensinger
necessarily had to move her, making the kidnap “incidental”

. . . [T]he majority’s attempt to present advancement of an independent
felonious purpose as merely a kind of nonessential ‘clarifying’ or
‘amplifying’ gloss is unsuccessful.”).
 PENSINGER V. CHAPPELL 25

to the murder.6 The jury could also have convicted Pensinger
of Michael, Jr.’s, kidnapping because it believed Pensinger
kidnapped Michael, Jr., to “aid in the commission of [the]
felony” of murdering Michele. In both circumstances, the
jury would not have found a purpose for kidnapping
independent of Michele’s murder. On the other hand, the jury
could have concluded that Pensinger kidnapped Michele with
the independent purpose of molesting her, and that he formed
the intent to murder her after the kidnapping. Because
evidence of Pensinger’s intent is subject to more than one
interpretation, we cannot conclude the jury necessarily found
the omitted narrowing element. Id. The district court

6
The superior court provided the following kidnapping jury instruction:

If a person moved away is incapable of consenting
thereto by reason of immaturity or mental condition,
then the person moving him away is guilty of
kidnapping only if you are convinced beyond a
reasonable doubt that before the movement the person
formed a specific intent to do the moving for an illegal
purpose or with an illegal intent and only if you are
convinced beyond a reasonable doubt that he
knowingly or having reason to know that he had no
legal right to do so took, enticed, or kept from the legal
custodian a child less than eighteen years of age
without the custodian’s consent and only if you’re
convinced beyond a reasonable doubt that he
knowingly restrained another person with the intent to,
[1] hold the victim for ransom, as a shield or hostage;
or [2] for involuntary servitude; or [3] to inflict death,
physical injury, child endangering or sexual offenses on
the victim, to detain or conceal such child from a
parent, or to otherwise aid in the commission of a
felony; or [4] place the victim or a third person in the
reasonable apprehension of imminent physical injury to
the victim or such third person. (Emphasis added).
26 PENSINGER V. CHAPPELL

properly found the remaining jury instructions did not cure
the error.

Next, we consider whether the California Supreme Court
cured the invalid instruction, and, if not, whether that
omission was harmless under Brecht v. Abrahamson,
507 U.S. 619, 637 (1993).

B

The California Supreme Court can cure an invalid
instruction in two ways. Morales v. Woodford, 388 F.3d
1159, 1171 (9th Cir. 2004). First, it can affirm the trial court
if it finds beyond a reasonable doubt that the same result
would have been obtained “without relying on the
unconstitutional aggravating circumstance”—that is to say,
the error was harmless. Id. (citing to Valerio v. Crawford,
306 F.3d 742, 756–57 (9th Cir. 2002) (en banc)). Second, the
California Supreme Court can invoke the method described
in Clemons v. Mississippi, 494 U.S. 738, 748 (1990), by re-
weighing the aggravating and mitigating circumstances to test
whether the verdict could stand without the improperly
introduced factor. Id.

Here, because the California Supreme Court did not find
error in the kidnap-murder special circumstance finding, it
did not attempt to cure the invalid jury instruction.
Pensinger, 52 Cal. 3d at 1255–56. Instead, it held that there
was “no substantial evidence that defendant’s sole purpose at
the inception of the kidnapping was to murder [the baby].”
Id. at 1255.
 PENSINGER V. CHAPPELL 27

“In the absence of the requisite ‘close appellate scrutiny’
by the state courts” a federal appellate court must conduct its
own harmless error analysis. Morales, 388 F.3d at 1171.

C

An error in the instruction of a death penalty special
circumstance is subject to Brecht’s harmless error review.
Williams, 52 F.3d at 1476; see also Morales, 388 F.3d at
1171–72. Under Brecht, an error is harmless unless it can be
found that it “had substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht, 507 U.S. at 637
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)) (internal quotations marks omitted). A habeas
petitioner must establish that the error resulted in “actual
prejudice.” Id. (internal quotation marks omitted). However,
where a judge in a habeas proceeding is in “‘grave doubt as
to the harmlessness of the error,’ the habeas ‘petitioner must
win.’” California v. Roy, 519 U.S. 2, 5–6 (1996) (citing
O’Neal v. McAnnich, 513 U.S. 432, 437 (1995)). We have
previously noted that an error is “not harmless as a matter of
law” when “our invalidation of the special circumstance
eliminated the only remaining special circumstance.”
Morales, 388 F.3d at 1172 (citing to Wade v. Calderon,
29 F.3d 1312, 1322–23 (9th Cir. 1994), overruled on other
grounds by Rohan ex rel. Gates v. Woodford, 334 F.3d 803,
815 (9th Cir. 2003)).

Here, the jury found Pensinger eligible for the death
penalty without having to make any determination whether
there was an “independent felonious purpose” to the
kidnapping of Michele Melander. Although the prosecutor
presented evidence of at least two different independent
28 PENSINGER V. CHAPPELL

purposes for Michele Melander’s kidnapping,7 the instruction
given to the jury required the jury to find only that the murder
occurred while Pensinger was “engaged in kidnapping in
violation of California Penal Code Section 207.” Thus, it was
possible for the jury merely to find that the kidnapping was
incidental to the murder—that is, during the course of
committing murder, Pensinger “happen[ed] to engage in
ancillary conduct that technically constitutes [a kidnapping]
or one of the other listed felonies.” See Green, 27 Cal. 3d at
62. Finally, the only special circumstance which remains
upholding Pensinger’s death sentence is the deficient kidnap-
murder special circumstance. Cf. Williams, 52 F.3d at
1479–80 (finding no prejudice on Green instructional error
because the jury found several other valid special
circumstances). “When a jury is the final sentencer, it is
essential that the jurors be properly instructed regarding all
facets of the sentencing process. It is not enough to instruct
the jury in the bare terms of an aggravating circumstance that
is unconstitutionally vague on its face.” Walton v. Arizona,
497 U.S. 639, 653 (1990), overruled on other grounds by
Ring v. Arizona, 536 U.S. 584 (2002) (citing Maynard v.
Cartwright, 406 U.S. 356 (1988), and Godfrey v. Georgia,
446 U.S. 420 (1980)). Therefore, we cannot here uphold the
kidnap-murder special circumstance on a harmless error
theory. The district court properly granted Pensinger’s
petition on the basis of Claim 24.

7
The State’s two different theories were: (1) Pensinger wanted to and
did sexually molest Michele; and (2) Pensinger wanted to “strike back” at
Vickie Melander and her husband for the theft of his rifle.
 PENSINGER V. CHAPPELL 29

V

Finally, we consider Pensinger’s contention that his trial
counsel was ineffective in failing to request a jury instruction
in accordance with People v. Green, during the guilt phase.

A meritorious ineffective assistance of counsel claim
must demonstrate: (1) “that counsel’s representation fell
below an objective standard of reasonableness”; and (2) that
the deficient performance prejudiced the defense, which
requires a showing that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984).

Under the pre-AEDPA standard of review, a state court’s
conclusion as to whether counsel rendered ineffective
assistance is a mixed question of law and fact, id. at 698,
subject to de novo review, Williams, 529 U.S. at 400.
However, the state court findings of fact made in the course
of deciding an ineffectiveness claim are questions of fact,
subject to “a presumption of correctness.” Thompson v.
Keohane, 516 U.S. 99, 111 (1995); Lambert v. Blodgett,
393 F.3d 943, 976 (9th Cir. 2004). “Consequently, a federal
court reviewing a state court conclusion on a mixed issue
involving questions both of fact and law must first separate
the legal conclusions from the factual determinations that
underlie it.” Lambert, 393 F.3d at 977–78.

A

A counsel’s performance is deficient if his or her
representation was unreasonable “under prevailing
professional norms.” Strickland, 466 U.S. at 688. “Judicial
30 PENSINGER V. CHAPPELL

scrutiny of counsel’s performance must be highly
deferential. . . . A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight.” Id. at 689. The court “must indulge a
strong presumption that counsel’s conduct falls within the
wide range of professional assistance; that is, the defendant
must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. (internal quotation marks omitted).

Where counsel pursues one theory of the defense over
another, counsel’s lack of request for a jury instruction on the
alternate theory does not constitute deficient performance.
See Clabourne v. Lewis, 64 F.3d 1373, 1382–83 (9th Cir.
1995) (“Clabourne was pursuing an insanity defense, and that
defense might have been less credible if Clabourne had
disavowed his confession. . . . [Thus,] the failure to request a
voluntariness instruction [regarding his confession] . . . did
not amount to ineffective assistance.”); United States v.
Chambers, 918 F.2d 1455, 1461–62 (9th Cir. 1990)
(“Chambers’ trial counsel chose to pursue an identity defense
rather than challenge Chambers’ possession of the
cocaine. . . . [T]rial counsel did not render deficient
performance by failing to request a [possession]
instruction.”).

Here, the district court relied on Clabourne and
Chambers, holding that failure to request a Green instruction
would meet the prejudicial prong of the Strickland standard,
but not the deficient performance prong. We agree. Defense
counsel’s theory was that Pensinger did not kidnap or murder
Michele. Instead, he argued that Vickie, Michele’s mother,
 PENSINGER V. CHAPPELL 31

had both the motive and opportunity to have Michele killed.8
Thus, requesting a jury instruction requiring Pensinger to
have an independent felonious purpose in kidnapping
Michele did not comport with defense counsel’s theory of the
case that Pensinger did not murder Michele.

Pensinger contends that the facts in Clabourne and
Chambers are distinguishable because Pensinger’s Green
instruction was not an instruction that the defense had to
request. Rather, that since the trial court had a duty to
instruct the jury, by extension, trial counsel was ineffective
in not asking for the instructions on all basic elements of the
kidnapping special circumstance, including the Green
instruction. Pensinger inappropriately conflates the trial
court’s duty with counsel’s. Because Pensinger’s defense
theory was that he did not kidnap the children or murder
Michele, defense counsel did not have a duty to request a
Green instruction and, consequently, his failure to request one
did not render his performance deficient. Chambers,
918 F.2d at 1461–62; Clabourne, 64 F.3d at 1382–83.
Therefore, the district court properly denied Pensinger’s
petition for relief on the basis of Claim 12(BB).

VI

The facts of five-month-old Michele’s murder are
horrific. While Pensinger’s convictions for the first-degree

8
At closing, defense counsel argued that at the time of the murder
Vickie felt desperate, had two children, was pregnant with a third, had no
place to stay, and was married to a man who would not work. Defense
counsel argued that Vickie’s children interfered with the way she wanted
to live, and that Vickie did not have the money for the special formula that
Michele’s medical condition required.
32 PENSINGER V. CHAPPELL

murder of Michele Melander and the kidnapping of Michael,
Jr., and Michele are unaffected by our decision—under our
pre-AEDPA case law—the district court properly vacated the
kidnap-murder special circumstance finding, which alone
supported Pensinger’s death sentence. Under Williams v.
Calderon, an instructional error occurred when the trial court
omitted the Green instruction requiring the jury to find an
independent felonious purpose to kidnap Michele. Williams,
52 F.3d at 1476. Even in light of other instructions, the jury
did not necessarily find the independent felonious purpose.
And, under Brecht, the omission of the Green instruction in
the kidnap-murder special circumstance was not harmless as
a matter of law because our invalidation would eliminate the
only remaining special circumstance supporting the capital
sentence imposed.

The district court properly denied Pensinger’s ineffective
assistance of counsel claim because trial counsel’s failure to
request a Green instruction comported with the theory of his
defense.

AFFIRMED.