Belmontes v. Woodford

O’SCANNLAIN, Circuit Judge,

concurring in part and dissenting in part:

The court properly affirms Judge Levi’s determination that there was no constitutional error in Belmontes’s convictions for first degree murder with special circumstances in state court. I am pleased to concur in its conclusions as to the guilt phase. Regrettably, as to the penalty phase, the majority strains mightily — and unpersuasively- — to perceive constitutional error in the comprehensive and perfectly proper jury instructions given by the state trial judge. ■ Because there simply is no such error, and the Supreme Court has expressly told us so, I must respectfully dissent from the court’s grant of the writ with respect to the penalty phase.

Just over a decade ago, the Supreme Court in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), interpreted the same jury instruction at issue today, “factor (k),” and concluded that it was constitutionally sound. The Court held that there was no “reasonable likelihood that the jury ... applied [factor (k)] in a way that prevent[ed] the consideration of constitutionally relevant evidence.” Id. at 380, 110 S.Ct. 1190. Nonetheless, the majority manages to distinguish Boyde, and makes the extraordinary conclusion that there was a reasonable likeli*1072hood that the jury refused to consider mitigating evidence that both the prosecution and the defense acknowledged was properly before it. Because the jurors were not constitutionally barred from making a death penalty determination in this case, I would affirm.

•I

At the close of the penalty phase, the state trial court judge began instructing the jury on aggravating and mitigating circumstances as follows: “In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed.” The court then read an enumerated list of seven factors, exhaustive with respect to aggravating circumstances, but only examples with respect to mitigating circumstances. The last of these factors, factor (k), instructs the jury to consider, “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” The majority, by misconstruing both Supreme Court precedent and the evidence in this case, concludes that the factor (k) instruction failed to provide an outlet for the jury to consider some of Belmontes’s penalty phase evidence.

A

The majority’s holding is based on the false premise that factor (k) limits the jury’s consideration only to circumstances that might excuse the crime. See supra, at 1061. But the Court has already explicitly rejected this proposition. In Boyde, the Court held that factor (k) did not “limit the jury’s consideration to ‘any other circumstances of the crime which extenuates the gravity of the crime.’ [It directed the jury] to consider any other circumstance that might excuse the crime, which certainly includes a defendant’s background and character.” 494 U.S. at 382, 110 S.Ct. 1190 (emphases in original); see also id. at 381, 110 S.Ct. 1190 (holding that there was “no[ ] ... reasonable likelihood that Boyde’s jurors interpreted the trial court’s instructions to prevent consideration of mitigating evidence of background and character.”). Boyde makes it perfectly clear that testimony relating to a defendant’s pre-crime background and character is within1 the jury’s purview under factor (k).

Belmontes’s penalty phase presentation was entirely composed of such evidence. The witnesses who testified on his behalf spoke to his religious convictions and his behavior while a ward of the ■ California Youth' Authority (“CYA”) — all of which goes to his background and character before he murdered Steacy. While the majority attempts to paint such evidence as showing that he would be a model inmate if sentenced to life in prison, the testimony as actually presented deals exclusively with his character prior to the crime. In fact, not one witness who testified during the penalty phase testified to Belmontes’s behavior after the murder.

By deftly labeling such testimony as “post-crime” mitigation evidence, the majority attempts to fit within the scope of Payton v. Woodford, 299 F.3d 815, 824-25 (9th Cir.2002) (en banc), vacated on other grounds by 71 U.S.L.W. 3489 (U.S. Apr. 21, 2003) (No. 02-1055). Such attempt cannot work because Payton involved actual post-crime evidence — Payton’s conversion to Christianity following his crime. Here, all of the evidence related to Bel-montes’s character before he committed his crime. Belmontes’s religious conversion and ability to conform to prison are exactly the types of evidence which the Supreme Court held fit within the plain language of *1073factor (k). See Boyde, 494 U.S. at 382, 110 S.Ct. 1190 (holding that Boyde’s strength of character in the face of adversity was considered evidence which “excused” the gravity of the crime under factor (k)). Accordingly, under Boyde, the jury was able to consider and to give effect to all of Belmontes’s mitigating evidence. Nothing more was constitutionally required. Johnson v. Texas, 509 U.S. 350, 372-73, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (holding that “a jury [need not] be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.”).

Even so, the Supreme Court has held that inquiry into future dangerousness of a defendant “is not independent of an assessment of personal culpability.” Id. at 369, 113 S.Ct. 2658. In Johnson, the Court held that an instruction which asked jurors to consider the future dangerousness of a defendant provided ample opportunity for the jury to consider the defendant’s youth as mitigating evidence. Id. at 369-70, 113 S.Ct. 2658. Even though the statutory factor did not explicitly provide that the jury could consider the defendant’s youth as a mitigating factor for culpability of the crime, the Court concluded that there was no reasonable likelihood that the jury would have thought it was foreclosed from considering it. Id. at 370, 113 S.Ct. 2658.

Likewise, because factor (k) allows the jury to consider Belmontes’s character and background, there is no reason to think that the jury would have thought it was foreclosed from using such information to consider his future potential if sentenced to life in prison. As the Supreme Court has noted, “Consideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing.” Skipper, 476 U.S. at 5, 106 S.Ct. 1669 (emphasis added); see Boyde, 494 U.S. at 382, 110 S.Ct. 1190 (“Petitioner had an opportunity through factor (k) to argue that his background and character ‘extenuated’ or ‘excused’ the seriousness of the crime, and we see no reason to believe that reasonable jurors would resist the view, ‘long held by society,’ that in an appropriate case such evidence would counsel imposition of a sentence less than death.”); ef. Johnson, 509 U.S. at 370, 113 S.Ct. 2658.

Thus, while the majority scours the cold record decades after the trial to find an ambiguity in the sentencing instruction, it is highly doubtful that the jury itself would have so found. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might.” Boyde, 494 U.S. at 380-81, 110 S.Ct. 1190. I see no reason why the jury would have resisted the inevitable consideration of Belmontes’s future potential in light of the character evidence presented.

B

The majority also ignores the Supreme Court’s advice that “[djifferences in interpretation may be thrashed out in the deliberative process, with commonsense understanding of the instructions in light of all that has taken place at the trial likely to prevail over technical hairsplitting.” Boyde, 494 U.S. at 380-81, 110 S.Ct. 1190. That factor (k) permits the consideration of Belmontes’s character evidence is amplified when the penalty phase is viewed as a whole, particularly in light of the arguments made by counsel.

Like the instruction given in- Boyde, the jury in this case was told that it must consider all the evidence unless otherwise instructed. Boyde, 494 U.S. at 383, 110 S.Ct. 1190 (relying in part on the fact that Boyde’s jury was instructed that it “shall consider all of the evidence which has been *1074received during any part of the case” (emphasis in original)). Although it is undisputed here that neither the'Court nor the parties told the jury that it could not consider any of the evidence presented by Belmontes, the majority infers ambiguity.

In this case, the jury heard, without objection, evidence regarding Belmontes’s behavior in prison before the murder: how he had found God and how he could serve as an example to other inmates. In its closing argument, the prosecution stated, “I suspect you will be told ... that the defendant’s religious experience is within that catchall [factor (k)] that relates to the defendant at the time he committed the crime, extenuates the gravity of the crime. I’m not really sure it fits in there. I’m not sure it really fits in any of them.” Even so, the prosecutor noted, “But I think it [Belmontes’s religious experience] appears to be a proper subject of consideration.”

Later the prosecutor expounded on why the jury should consider Belmontes’s evidence:

I suppose you can say it would be appropriate [to consider such evidence] because — in this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There’s something to that.

Belmontes’s pleas were similar. Bel-montes asked for fife in prison because in prison “there is an opportunity to achieve goals and try to better yourself.” His counsel continued the argument, asking the jury to spare Belmontes’s life because he would make a positive contribution if his life were spared: “[W]hat I am suggesting to you and what I hope the evidence suggests to you is Fernando Bel-montes cannot make it on the outside. I think it is pretty clear from the development he undertook, the kind of experiences he had with the Haros as compared with his being placed out on his own.” He added,

The people who came in here told you about him. They told you not only what they know of him, but they gave you, as best they could, under the very difficult circumstances of somebody looking at the rest of their life in prison, a game plan, something he can do with his life, something he’s been able to do. We’re just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can.,

At no time did the prosecutor object to the defense’s characterization, nor did the trial judge indicate that the parties’ statements of law were not correct or that the jury could not consider any of the evidence. Nevertheless, the majority concludes that the jury thought that the witnesses wasted their time by testifying, and that the prosecutor, Belmontes, and Bel-montes’s lawyer were not smart enough to realize they were all mistaken. In its world, the majority envisions a jury playing a game of “gotcha” with the lawyers, whereby the jury ignores everyone and applies its own instructions. ■

Such a conclusion is pure fantasy and cannot justify overturning the jury’s choice here. Compare Buchanan v. Angelone, 522 U.S. 269, 278-79, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (“The parties in effect agreed that there was substantial mitigating evidence and that the jury had to weigh that evidence against petitioner’s conduct in making a discretionary decision on the appropriate penalty. In this context, ‘there is not a reasonable likelihood that the jurors in petitioner’s case under*1075stood the challenged instructions to preclude consideration of relevant mitigating evidence offered by petitioner.’ ”), with Payton v. Woodford, 299 F.3d 815, 824-25 (9th Cir.2002) (en banc), vacated on other grounds by 71 U.S.L.W. 3489 (U.S. Apr. 21, 2003) (No. 02-1055) (holding that the prosecutor’s argument that factor (k) did not allow the jury to consider evidence of a post-crime religious conversion “compounded the potential for confusion”).

II

Even assuming, arguendo, that there was a reasonable likelihood that the jury could have interpreted factor (k) to prohibit consideration of Belmontes’s character witnesses, the instructions were still constitutionally sufficient. To arrive at its result, the majority downplays the trial court’s initial instruction, in which the jury was told, “In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed.” (emphasis added). Such a jury instruction alone is constitutionally sufficient to convey to the jury its duty to consider all mitigating evidence. See Buchanan, 522 U.S. at 276, 118 S.Ct. 757 (holding that there was no likelihood of confusion when the jury had to indicate on the statutory verdict form that it had “considered the evidence in mitigation of the offense,” and the trial court provided the following mitigation instruction: “[I]f you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment”); Johnson, 509 U.S. at 368, 113 S.Ct. 2658 (holding that jury instruction that stated the jury could consider all the mitigating evidence presented during both the guilt and penalty stage was sufficient to inform the jury that it could consider evidence of defendant’s youth); Blystone v. Pennsylvania, 494 U.S. 299, 307-08, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990) (“In petitioner’s case the jury was specifically instructed to consider, as mitigating evidence, any ‘matter concerning the character or record of the defendant, or the circumstances of his offense.’ This was sufficient to satisfy the dictates of the Eighth Amendment.” (citation to the record omitted)); cf. Tuilaepa v. California, 512 U.S. 967, 979, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (“A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.”).

The trial court’s duty is simply to convey to the jury that all mitigating evidence must be considered and may be given effect when it deliberates on a defendant’s capital sentence. Buchanan, 522 U.S. at 276, 118 S.Ct. 757. The absence of any specific instruction to the jury to consider the defendant’s ability to adjust to an institutional setting is utterly irrelevant. Id. at 277, 118 S.Ct. 757 (“By directing the jury to base its decision on ‘all the evidence,’ the instruction afforded jurors an opportunity to consider mitigating evidence.”).

Even if the jury were confused by the subsequent enumeration of individual factors — perhaps thinking that its consideration of mitigating evidence was limited to such factors — the confusion would have been short lived. After reading the enumerated factors, the court instructed, “[T]he mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. Bel-montes.” The majority, however, fixates, not on the clear language of such directive, but on the two sentences which directly follow: “You should pay careful attention *1076to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case.” According to the majority, these sentences somehow obfuscate the clarity of the court’s instructions.

We must look at these instructions in their entirety, however.' The judge instructed,

I have previously read you a list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.
However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. Bel-montes. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case.

When these instructions are read in context, there is little doubt that the court conveyed the message that the enumerated factors were not the exclusive mitigating circumstances that the jury could consider. The court first instructed the jury how to apply the aggravating circumstances, specifically that it could not consider any non-enumerated factors. The court then contrasted consideration of aggravating factors with mitigating factors, which it noted were merely “examples of some of the factors” that the jury could consider. The fact that the court further instructed that the jury should consider each of the mitigating factors (recall that “factors” refers to all mitigating circumstances and not, as the majority implies, to the enumerated circumstances read by the judge) as any one alone might support life in prison, was unlikely to confuse the jury, when viewed in totality.

The trial court’s additional instruction reinforced the constitutional requirement of conveying to the jury that it is “not precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.” Buchanan, 522 U.S. at 276, 118 S.Ct. 757 (citations omitted). Instead of confusing the jury, the trial court’s instructions made it clear that all evidence that was presented must be considered. Moreover, the instruction which the majority concludes was “critical,” supra, at 1065, substantively adds nothing. Rather than speculating that the jury was too dim to understand what it was told by the court, we must presume that the jury understood the instructions taken as a whole. Weeks, 528 U.S. at 234, 120 S.Ct. 727.

Ill

According to the majority, however, it is the series of questions between individual jurors and the judge that proves the jury’s confusion. After the jury deliberated for several hours, it sent the judge a note asking, “What happens if we cannot reach a verdict?” and “Can the majority rule on life imprisonment?” The judge refused to tell the jury what would happen if they could not agree, but told them that it would discharge them if they could not reach an agreement. He then asked, “Do you think if I allow you to continue to discuss the matter and for you to go over the instructions again with one another, that the possibility of making a decision is there?”

*1077At this time, individual jurors asked the judge some questions.

JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing?
THE COURT: That was the listing, yes, ma'am.
JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet?
THE COURT: That is right. It is a balancing process.
JUROR HAILSTONE: Could I ask a question? I don’t know if it is permissible. Is it possible that he could have psychiatric treatment during this time?
THE COURT: That is something you cannot consider in making your decision.

In the majority’s view, Juror Hern’s use of the term “listing,” and the judge’s failure to note that the “listing” was not exclusive as to mitigating circumstances, shows that individual jurors were confused by the instruction. I respectfully disagree. The jury did not submit a formal question to the judge to indicate that it was confused as to its duties or the instructions, and no informal follow-up questions were asked by any jurors. And while the answers the judge gave the juror might have been cryptic, they were not incorrect. Cf. Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

Most importantly, just before the judge answered these informal questions, he asked the jury “to go over the instructions again.” Under existing Supreme Court authority, any confusion with regard to its responsibilities would have been cleared up with another such review. See Weeks v. Angelone, 528 U.S. 225, 233-34, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (holding that no likelihood of confusion existed when the trial judge referred back to his original instruction when the jury asked a question regarding the instructions themselves). And if, after reviewing the instructions once again, jurors were still confused about the evidence they could consider, they likely would have asked for a formal clarification. See id. at 734 (noting that jury did not submit follow-up question after judge referred it back to the original instructions). While it is possible that after reviewing the instructions again, confusion might have arisen, it was certainly not reasonably likely. See Boyde, 494 U.S. 370, 110 S.Ct. 1190.

Incredulously, the majority also takes issue with Juror Hailstone’s question regarding whether Belmontes could receive psychiatric treatment while in prison. The court properly instructed the jury that it could not consider such potentially mitigating evidence. And for good reason: no such evidence was ever introduced at any stage of the trial. Indeed, the jury was prohibited from such considerations. See Hughes v. Borg, 898 F.2d 695, 700 (9th Cir.1990) (“State defendants have a federal constitutional right to an impartial jury and jurors have a correlative duty to consider only the evidence that is presented in open court.”); see also TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 468, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (Kennedy, J., concurring) (“Unlike a legislature, whose judgments may be predicated on educated guesses and need not necessarily be grounded in facts adduced in a hearing, a jury is bound to consider only the evidence presented to it in arriving at a judgment.”).

There was absolutely nothing wrong with the trial judge’s instruction that the jury could not consider evidence that was not presented; indeed, it would have been unconstitutional for him to have said otherwise. Yet, the majority ignores such niceties. If the jury were truly confused by *1078the judge’s answer, surely it would have asked a follow-up question of some sort. Nonetheless, without any basis in the record, the majority concludes that the judge’s perfectly proper statement was likely to confuse.

IV

The majority concludes that the jurors listened to all the evidence regarding Bel-montes’s character, listened to the prosecution and the defense tell it to consider such evidence, and listened to the trial court tell it that it must consider all the evidence presented; yet the majority holds that the jury was confused about whether it could consider the evidence presented. Such conclusion, with all due respect, is simply beyond belief; such holding turns the entire proceeding “into a virtual charade.” Boyde, 494 U.S. at 383, 110 S.Ct. 1190 (citation and quote marks omitted).

The jury, in reality, returned a death sentence for Belmontes, not because of a confusing jury instruction, but because he murdered nineteen-year-old Steacy McConnell in cold blood, striking her 15-20 times in the head with an iron dumbbell he had brought with him to her house in case of such an encounter; I sincerely doubt the family and friends of Steacy would share the majority’s callous view that her murder was not “especially heinous.”

Not surprisingly, the prosecution was able to portray Belmontes as a violent young man by focusing on his past behavior: his armed theft of a loaded handgun, his tendency to carry such a weapon, his fight with another ward while in the CYA after pleading guilty to being an accessory after the fact to voluntary manslaughter, and his battery of his pregnant girlfriend, which caused her to drop their two-year-old daughter. It is such violent, anti-social behavior, not an ambiguous jury instruction, that placed him in the situation he now finds himself.

Perhaps the jury simply did not believe that a convicted murderer might be a particularly good role model to other inmates, despite Reverend Miller’s testimony that Belmontes would be good at counseling other inmates not to repeat his “mistakes.” After all, Steacy’s murder was hardly a “mistake.” Perhaps Belmontes’s jailhouse conversion to Christianity, which mysteriously lapsed as soon as he returned to society, and his ascent to the top of CYA’s fire crew, could rightly have been seen as manipulative ploys to gain early release for his previous crimes.

By concluding that the trial court’s jury instructions were unconstitutional, the majority ignores the “strong policy against retrials years after the first trial where the claimed error .amounts to no more than speculation.” Boyde, 494 U.S. at 380, 110 S.Ct. 1190. There is nothing in the record which would lead me to believe that there was a reasonable probability that the jury was confused about its sentencing duties; therefore I would affirm the denial of the writ as to the penalty phase. I must respectfully dissent from the majority’s refusal to do so.1

. Belmontes also contends that he was deprived of constitutionally effective counsel during the penalty stage of his trial. His claim is without merit. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Gerlaugh v. Stewart, 129 F.3d 1027, 1035-36 (9th Cir. 1997).