(DP) Catlin v. Davis

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8 UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 STEVEN CATLIN, Case No. 1:07-cv-01466-LJO-SAB

12 Petitioner, DEATH PENALTY CASE

13 v. MEMORANDUM AND ORDER:

14 RON DAVIS, Warden of San Quentin State (1) DENYING CLAIMS 1-68; (2) DENYING

Prison, PETITIONER’S MOTION FOR

15 EVIDENTIARY DEVELOPMENT, RECORD

Respondent.1 EXPANSION AND EVIDENTIARY

16 HEARING, (3) DENYING PETITION FOR

WRIT OF HABEAS CORPUS, and (4)

17 ISSUING CERTIFICATE OF

APPEALABILITY FOR CLAIMS 10, 11, 26(A),

18 35(A), 35(B), 35(C), and 35(F)

19 (Doc. Nos. 25, 84)

20 CLERK TO VACATE ANY AND ALL

SCHEDULED DATES AND SUBSTITUTE

21 RON DAVIS AS RESPONDENT WARDEN

AND ENTER JUDGMENT

22

23 Petitioner Steven David Catlin (hereinafter “Petitioner”) is a state prisoner, sentenced to death,

24 proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in

25 this action by appointed counsel Saor Stetler and Richard Novak.

26 Respondent Ron Davis (hereinafter “Respondent”) is named as Warden of San Quentin State

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1

Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, Warden of San Quentin State Prison, is substituted as respondent in place of

28 his predecessor wardens.

1

1 Prison. He is represented in this action by supervising deputy attorney general Kenneth Sokoler.

2 Before the court for decision are (i) the petition for writ of habeas corpus filed in this proceeding

3 on September 24, 2008 and its claims 1-68 including subclaims,2 and (ii) Petitioner’s motion for

4 evidentiary development, expansion of the record to include post-conviction proceedings pursuant to

5 Penal Code section 1054.9,3 and for evidentiary hearing.4

6 Having carefully reviewed the parties’ filings and the relevant case law and for the reasons set

7 out below, the undersigned finds that the petition for writ of habeas corpus and all claims therein shall be

8 denied, the motion for evidentiary development, expansion of the records, and evidentiary hearing shall

9 be denied, and certificate of appealability shall issue only for claims 10, 11, 26(A), 5(A), 35(B), 35(C),

10 and 35(F).

11 I. BACKGROUND

12 A. Overview

13 Petitioner was convicted of murdering his fourth wife, Joyce Catlin, a mother of eight children

14 (hereinafter “Joyce”), his fifth wife, Glenna Catlin, (hereinafter “Glenna”), and his adoptive mother,

15 Martha Catlin, (hereinafter “Martha”) by poisoning them with the herbicide paraquat. Joyce’s murder

16 occurred in 1976. The murders of Glenna and Martha occurred in 1984.

17 The conviction for the first-degree murder of Glenna was rendered in 1986 in Monterey County

18 Superior Court (following a change of venue from Fresno County Superior Court) for which Petitioner

19 was sentenced to life without parole (hereinafter “LWOP”), with judgment entered thereon. The

20 convictions for the first-degree murders of Joyce and Martha were rendered in 1990 in Kern County

21 Superior Court and resulted in sentences of LWOP and death respectively, with judgment entered

22 thereon.

23 This habeas corpus proceeding involves only the Kern County judgment.

24 B. Procedural Posture

25 Petitioner is currently in the custody of the California Department of Corrections and

26

2

The petition contains two claims numbered “67” so the petition totals sixty-nine claims. (See Doc. No. 25 at 641-56.)

27 3

Penal Code section 1054.9 requires prosecution and law enforcement agencies disclose all discovery to which the defendant

would have been entitled to at the time of trial. See In re Steele, 32 Cal. 4th 682, 694-98 (2004).

28 4

Any reference to state law is to California law unless otherwise noted.

2

1 Rehabilitation pursuant to July 6, 1990 entry of judgment of the Superior Court of California, County of

2 Kern imposing the death sentence following his conviction following jury trial in Kern County Superior

3 Court case number 30594.5 (CT 2079.) The conviction was affirmed by the California Supreme Court

4 on automatic appeal. People v. Catlin, 26 Cal.4th 81 (2001). The United States Supreme Court denied

5 petitioner’s writ for certiorari on April 1, 2002. Catlin v. California, 535 U.S. 976 (2002).

6 Petitioner was arrested on February 14, 1985 (RT 3483-86). On December 23, 1985, Petitioner

7 was charged by information filed in Kern County, with the 1976 murder Joyce (Penal Code § 187) and

8 the 1984 murder of Martha Catlin (Penal Code § 187). (CT 1348-50.) It was alleged that the murder of

9 Martha Catlin was committed for financial gain (Penal Code § 190.2(a)(1)), that the murder was

10 intentionally committed by the administration of poison (Penal Code § 190.2(a)(19)), and that Petitioner

11 was convicted of more than one offense of murder in that proceeding (Penal Code § 190.2(a)(3)). (Id.)

12 On September 7, 1988, the information was amended to include an allegation that Petitioner had

13 been convicted in 1986 in Monterey County of the 1984 first-degree murder of Glenna Catlin (Penal

14 Code § 190.2(a)(2)). (CT 1777.) Count I of the amended information charged Petitioner with first-

15 degree murder of Joyce and Count II charged petitioner with the first-degree murder of Martha. (Id.)

16 Additionally, the amended information alleged four special circumstances in connection with Count II,

17 i.e. (i) the murder was carried out for financial gain within the meaning of Penal Code section 190.2(a)(1);

18 (ii) Petitioner was charged with committing more than one murder in the first or second-degree within

19 the meaning of Penal Code section 190.2(a)(3); (iii) Petitioner intentionally killed the victim by

20 administration of poison (i.e., the herbicide paraquat) within the meaning of Penal Code section

21 190.2(a)(19); and (iv) Petitioner had previously been convicted of the first-degree murder of Glenna

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22 within the meaning of Penal Code section 190.2(a)(2) and sentenced to life without parole in 1986. (See

23 1SHCP Ex. 102 at 1159; 1SHCP Ex. 100 at 409.)

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25 5

Unless otherwise indicated, throughout this order, “1SHCP” refers to the first state habeas corpus petition; “2SHCP” refers

to the second state habeas corpus petition; “CT” refers to the clerk’s transcript on appeal, “RT” to the reporter’s transcript on

26 appeal, “SRT” to the supplemental reporter’s transcript on appeal, and “SCT” to the supplemental clerk’s transcript on appeal.

Other transcripts are referenced by date. Reference to page numbering is to: ECF page numbering for documents filed

27 electronically in CM/ECF, Bates numbering for CT documents and where otherwise expressly noted, and internal pagination

for all other documents.

28 6

The prior murder conviction special circumstance was bifurcated in the Kern County proceeding as required by Penal Code

§ 190.1(a).

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1 Petitioner’s Kern County trial began on April 23, 1990. Pursuant to statute, the jury was not

2 informed of the fourth alleged special circumstance, concerning a prior murder conviction. On June 1,

3 1990, the jury found Petitioner guilty of murder in the first-degree on both Counts I and II and found the

4 first three special circumstances to be true. (CT 2028-2030.) Petitioner then admitted his prior (June 16,

5 1986) conviction for the first-degree murder of Glenna and the jury was informed that Petitioner had

6 stipulated to the truth of the fourth (prior murder conviction) special circumstance. (CT 2025.)

7 On June 5, 1990, the penalty phase began before the same jury that heard the guilt phase. (CT

8 2034.)

9 On June 6, 1990, the jury returned sentencing verdicts of LWOP for the murder of Joyce and

10 death for the murder of Martha. (CT 2074-75.) The trial court then imposed those sentences. (CT 2079-

11 2082.)

12 On July 6, 1990, the trial court denied petitioner’s motion for new trial and modification of death

13 penalty verdict and entered judgment upon the jury’s verdicts. (CT 2079-85.)

14 In May of 1993, attorneys Horace Freedman and Jeffrey Schwartz were appointed by the

15 California Supreme Court to represent Petitioner on direct appeal and collateral review. In March of

16 2000, the California Supreme Court ordered that Freedman represent Petitioner solely in the direct appeal

17 and that Schwartz represent Petitioner solely in the habeas proceeding.

18 On March 27, 1998, petitioner filed his automatic appeal with the California Supreme Court. On

19 July 16, 2001; that court affirmed the judgment and sentence on direct appeal. People v. Catlin, 26 Cal.

20 4th 81 (2001). On September 26, 2001, the California Supreme Court denied the petition for rehearing.

21 Id., as modified, (2001) (unpub.).

22 Petition for writ of certiorari was denied by the United States Supreme Court on April 1, 2002.

23 Catlin v. California, 535 U.S. 976 (2002).

24 On August 9, 2000, petitioner filed his first petition for writ of habeas corpus with the California

25 Supreme Court. In re Catlin, California Supreme Court Case No. S090636. On September 25, 2007, the

26 California Supreme Court summarily denied the first petition for writ of habeas corpus without issuing

27 and order to show cause, stating that:

28 The petition, filed on August 9, 2000, is denied.

Each claim and subclaim, except Claim XIX, is denied on the merits.

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1 In addition, Claims IX (to the extent it alleges error in the destruction of tissue samples)

and XVI (to the extent it alleges error in the denial of petitioner's motions for severance

2 and separate guilt and penalty phase juries) are denied on the ground they were raised

and rejected on appeal (In re Harris (1993) 5 Cal.4th 813, 825; In re Waltreus (1965) 62

3 Cal.2d 218, 225), and Claims VI, VIII, IX (to the extent it alleges error in the loss of

Bakersfield Police reports), XV and XVI (except to the extent it alleges error in the

4 denial of petitioner's motions for severance and separate guilt and penalty phase juries)

are denied on the ground that they could have been, but were not, raised on appeal (In re

5 Harris, supra, 5 Cal.4th at p. 825, fn. 3; In re Dixon (1953) 41 Cal.2d 756, 759). Claim

XIX is denied as premature without prejudice to its renewal after an execution date is

6 set.

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8 In re Catlin, California Supreme Court Case No. S090636.

9 On October 5, 2007, Petitioner began these federal proceedings. On November 2, 2007, the Court

10 appointed attorneys Lynne Coffin and Saor Stetler to represent Petitioner. The instant federal petition

11 was filed on September 24, 2008.

12 On October 24, 2008, respondent filed his answer asserting affirmative defenses, admitting

13 certain jurisdictional and preliminary allegations, asserting procedural defenses, and denying all claims.

14 On April 15, 2009, the Court ordered these proceedings held in abeyance pursuant to Rhines v.

15 Weber, 544 U.S. 269, 277 (2005), while Petitioner completed exhaustion in state court. In re Catlin,

16 California Supreme Court Case No. S173793.

17 On June 15, 2009, Petitioner filed his second (exhaustion) state habeas petition. On March 27,

18 2013, the California Supreme Court summarily denied the second petition for writ of habeas corpus

19 without issuing and order to show cause, stating that:

20

The petition for writ of habeas corpus, filed on June 15, 2009, is denied.

21

Claim 67 is denied as premature, without prejudice to its renewal after an execution date

22 is set.

23 Claims 16, 20, subclaim R of Claim 26, 32, subclaim F of Claim 35, 39, 40, 42, 47, 48,

50, 53, 57, 58 (to the extent it challenges the constitutionality of the death penalty law),

24 59, 62, 66, 68 and 69 are denied on the merits.

25 Claims 1-38, 41-46, 49, 51, 52, 54-56, 58 (except to the extent it challenges the

constitutionality of the death penalty law), 60 and 61 are barred as untimely. In re Robbins

26 (1998) 18 Cal.4th 770, 780-81.)

27 Claims 1, 2, 4-7, 15-20, subclaims F, P, and Q of Claim 26, 28-30, 33, subclaims D and E

of Claim 35, 41, 46, 49, 51, 52, 54, 58 (except to the extent it challenges the

28 constitutionality of the death penalty law), 60 and 61 are barred as successive, in that they

could have been, but were not, raised in petitioner’s prior petition for writ of habeas

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1 corpus, No. S090636. (In re Clark, 1993) 5 Cal.4th 750, 767-68.) Claims 3, 8, 10, 11,

14, 21-25, subclaims B, J, and K of Claim 26, and 38 are likewise barred as successive to

2 the extent aspects of the claims were not raised in the prior petition. (Ibid.)

3 Claims 9, 12, 13, subclaims A, C, D, E, G, H, I, L, M, N, and O of Claim 26, 27, 31, 34,

subclaims A, B, and C of Claim 35, 36, and 37 are barred as repetitive, in that they were

4 raised in petitioner’s prior petition for writ of habeas corpus. (In re Miller (1941) 17

Cal.2d 734, 735.) Claims 3, 8, 10, 11, 14, 21-24, subclaims B, J, and K of Claim 26, and

5 38 are likewise barred are repetitive to the extent aspects of the claims were raised in the

prior petition. (Ibid.)

6

Claims 8, 24, 36, 37, 45, 60 and 61 are barred on the ground that they could have been,

7 but were not, raised on appeal. (In re Dixon (1953) 41 Cal.2d 756, 759.) Except to the

extent they allege ineffective assistance of counsel, and except to the extent they challenge

8 the constitutionality of the death penalty law, claims 3, 5-7, 17-19, 21, 22, 25, 43, 46, 49,

and 58 are likewise barred to the extent aspects of the claims could have been, but were

9 not, raised on appeal. (Ibid.)

10 Claims 1, 2, 4, 15, 28-30, 41, 42, and 44 are barred on the ground that they were raised

and rejected on appeal. (In re Waltreus (1965) 62 Cal.2d 218, 225.) Except to the extent

11 they allege ineffective assistance of counsel, and except to the extent they challenge the

constitutionality of the death penalty law, claims 3, 5-7, 17-19, 21, 22, 25, 43, 46, 49, and

12 58 are likewise barred to the extent aspects of the claims were raised and rejected on

appeal. (Ibid.)

13

Claim 30 is not cognizable on habeas corpus. (In re Lindley (1947) 29 Cal.2d 709, 723.)

14

15 In re Steven David Catlin on Habeas Corpus, S173793. (Doc. No. 48.)

16 On June 30, 2015, Petitioner filed his motion to expand the record and for evidentiary

17 development and hearing. (Doc. No. 84.)

18 On June 1, 2016, Respondent filed his answering brief on the merits and opposition to the motions

19 for expansion of the record, factual development and evidentiary hearing. (Doc. No. 88.)

20 On February 14, 2017, Petitioner replied to Respondent’s answering brief and opposition to the

21 noted motions. (Doc. No. 95.)

22 II. STATEMENT OF FACT

23 This factual summary is taken from the California Supreme Court’s summary of the facts in its

24 July 16, 2001 opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state supreme court’s summary

25 of facts is presumed correct. Petitioner does not present clear and convincing evidence to the contrary;

26 thus, the Court adopts the factual recitations set forth by the state supreme court. Vasquez v. Kirkland,

27 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our summary

28 of the facts of the crime.”).

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A. Guilt phase evidence

2

1. The murder of Joyce Catlin

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4 Joyce Catlin, defendant's fourth wife, died in Bakersfield on May 6, 1976. She had

developed what appeared to be flu-like symptoms about three weeks before her death and,

5 upon consulting a physician, was admitted to a hospital. Before admission, she

complained of back pain, vomiting, and a sore throat. She was transferred to the hospital's

6 intensive care unit the day after her admission. Her lungs appeared to be affected. Dr.

Einstein, a lung specialist, treated her without success for possible viral or bacterial

7 infection. She did not respond to various antibiotic medications. Her lungs failed to

oxygenate her body sufficiently, and she required mechanical ventilation. Nineteen days

8 after admission to the hospital, her lungs failed entirely, and she died.

9 An autopsy disclosed gross pulmonary fibrosis. Pathologist Dr. Bruce Swinyer, who

performed the autopsy, testified that Joyce's lungs were extremely heavy and fibrotic and

10 that there was no indication of viral or bacterial infection that could have caused death.

The death certificate listed the cause of death as acute respiratory failure due to unknown

11 microorganisms, but attending physicians suspected poisoning by paraquat, a highly toxic

poison used in agriculture to control weeds. (Although several witnesses referred

12 generally during the course of the proceedings to paraquat as a pesticide, technically it is

an herbicide.)

13

Dr. Einstein testified that the cause of death was pulmonary fibrosis. In this condition, the

14 lungs develop massive scarring and are unable to function to exchange oxygen and carbon

dioxide. He could not identify any natural cause of this condition. He testified that in 1976,

15 toxicological tests that could disclose the presence of paraquat more than 72 hours after

administration did not exist. Tissue collected during the autopsy was preserved in

16 formalin, which precluded later testing for the presence of paraquat. At trial, Dr. Einstein

stated his opinion that Joyce died of paraquat poisoning, based in part on the opinion of

17 Dr. Kilburn, a lung pathologist, and in part on the absence of any natural agent that could

have caused her death. He also relied upon the clinical course of Joyce's symptoms and

18 the appearance of her lungs after death.

19 Dr. Kilburn, a professor of medicine and expert in lung pathology, examined tissue

samples sent to him in 1976 by Dr. Swinyer. He testified that Joyce's lung tissue almost

20 was destroyed by fibrosis, that the fibrosis was caused by a chemical, and that the only

chemical that could produce such fibrosis was paraquat. He explained that it could take

21 up to 30 days or as little as 12 hours for paraquat to cause death, depending upon the dose.

When he showed the slides to a visiting professor who was an expert in paraquat

22 poisoning, the latter said that they constituted a perfect example of paraquat poisoning.

23 Dr. Ford, a clinical toxicologist employed by the Chevron Environmental Health Center,

explained that paraquat poisoning progressed in typical stages. Initially, the patient

24 experiences a burning sensation in the mouth, and then after about 12 hours develops

symptoms such as nausea, vomiting, and diarrhea. These symptoms may persist for a few

25 days, but by the seventh day after ingestion the patient may feel somewhat better. Some

kidney impairment may follow, but normally is resolved after 14 days. The lungs become

26 affected about a week after ingestion, and by the third week they typically are so fibrotic

that they cannot function. He noted that consistent with these typical stages, Joyce

27 experienced vomiting and other gastrological symptoms for about seven days, then

developed some kidney dysfunction. As that resolved, she complained of shortness of

28 breath, and X-rays disclosed some marking of the lungs and edema. Her lungs continued

to deteriorate, and the autopsy disclosed a fibrotic condition typical of paraquat poisoning.

7

1

Dr. Stephens, then the Chief Medical Examiner of the City and County of San Francisco,

2 reviewed Joyce's medical records and slides of her tissues. He also found the course of

Joyce's symptoms consistent with paraquat poisoning, and testified that he believed she

3 died of such poisoning.

4 In sum, these medical and toxicological experts gave their opinions at trial that the cause

of Joyce's death was paraquat poisoning, relying in large part upon her distinctive clinical

5 symptoms and upon tissue analysis.

6 The prosecution did not introduce direct evidence regarding the manner in which paraquat

was administered to Joyce. There was evidence that shortly before she became ill, Joyce

7 and defendant attended a party where she showed signs of intoxication, and that shortly

thereafter she developed severe gastric symptoms, including violent vomiting. There also

8 was evidence that shortly after her hospitalization, defendant supplied Joyce with a

milkshake.

9

The following evidence related to defendant's potential motive for killing Joyce. Joyce

10 had credit life insurance, which was used to pay off a $6,741 debt on an automobile, as

well as an insurance policy paying up to $2,000 and a $5,000 life insurance policy, the

11 benefits of which were paid to defendant. When Joyce was in the hospital, defendant said

to her sister that he thought the credit life insurance covered both the couple's house and

12 their automobile. There also was evidence that defendant had engaged in extramarital

affairs while married to Joyce, and that the couple had argued over a girlfriend of his.

13

Edith Ballew, who had been defendant's third wife, testified that she and others suspected

14 shortly after Joyce's death that defendant was responsible for it.

15 There was evidence that access to paraquat was controlled under state law, but that

defendant had access to it in 1976 and 1977 when he worked as a mechanic for a large

16 agricultural enterprise. Several witnesses recounted defendant's statements-some

statements from 20 years before trial-indicating his belief that paraquat was an effective

17 herbicide that was extremely dangerous to human beings, that he was aware of the effect

of paraquat on the lungs, that he possessed agricultural poisons he had acquired at work,

18 and that he had shown the father of his second wife a container of a poison he said would

kill anything or anybody, a poison that he believed to be ideal for use in a murder because

19 it could not be detected and because there was no antidote. In 1975, defendant cautioned

Joyce's son not to enter his garage, which contained dangerous agricultural poisons, and

20 warned the boy regarding the danger of contact with paraquat.

21 2. The murder of Martha Catlin

22 Martha Catlin, defendant's 79-year-old mother, died in Bakersfield on December 8, 1984,

after an illness lasting two or three days.

23

In 1982, Martha had a mild stroke. At that time, Edith Ballew contacted Martha's

24 physician, Dr. Sproule, and suggested that Martha had been poisoned with paraquat. Dr.

Sproule reported finding no sign of poisoning.

25

In September 1984, Martha again visited Dr. Sproule. She had not been taking her

26 medication for hypertension, and her blood pressure was high. When she returned to the

physician on October 31, 1984, she complained of poor memory and reported poor eating

27 habits. Against medical advice, she had been drinking wine. Dr. Sproule prescribed a

cough syrup with codeine at that time.

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8

1 Edith Ballew visited Martha on Thursday, November 29, 1984, when Martha appeared in

her usual state of health. On Thursday, December 6, 1984, however, Martha telephoned

2 her friend Anna Stonebraker to request assistance because of a serious illness. Mrs.

Stonebraker testified that Martha appeared very ill, exhibiting swollen purple lips and

3 mouth as well as dark circles under her eyes. When Martha presented herself at Dr.

Sproule's office, she had a reddish purple tongue and throat and had a temperature of 102

4 degrees. Dr. Sproule treated her with penicillin and asked her to return the next day. Mrs.

Stonebraker was unable to care for Martha and left a message for defendant, asking his

5 assistance, but he called back later and stated he was unable to come from his home in

Fresno to Bakersfield, where Martha lived. Defendant telephoned Dr. Sproule the next

6 day and stated that he would send someone to stay with his mother.

7 Mrs. Stonebraker took Martha back to Dr. Sproule on Friday, December 7, 1984. At that

time Martha's throat was still sore and purplish, and she had difficulty eating. The next

8 day at 5:30 a.m., Dr. Sproule received a call reporting that Martha appeared to be dead.

He sent an ambulance, and Martha was pronounced dead on her arrival at the hospital.

9

Edith Ballew learned of Martha's death on Sunday, December 9, 1984, and called at

10 Martha's home. She found defendant there, and he stated that he had been to visit that

week, heard that his mother had the flu, and sent a woman to come stay with her.

11

An autopsy was performed, and tissue samples from Martha's lungs and kidneys were sent

12 to a Chevron laboratory in Richmond. The toxicological report concluded that Martha had

ingested a significant amount of paraquat. Dr. Ford, the clinical toxicologist whose

13 testimony with regard to Joyce Catlin's death is described above, explained that until two

or three years before trial, Chevron had been the sole distributor of paraquat in the United

14 States. He stated it was probable that Martha had ingested diluted paraquat six or seven

days before her death. Dr. Dollinger, the pathologist who performed the autopsy,

15 concluded after receiving the toxicological report that the cause of death was paraquat

poisoning.

16

Dr. Kilburn testified that Martha had lung damage consistent with paraquat poisoning. Dr.

17 Kilburn reported that Martha was killed by the ingestion of paraquat, probably three to six

days before her death, but that due to her frail condition, she died before the paraquat

18 rendered her lungs highly fibrotic.

19 Dr. Stephens testified that, although it was possible Martha died of a heart attack, he

believed her death was caused by paraquat poisoning. She had early signs of paraquat

20 poisoning and had sufficient paraquat in her system to cause death.

21 In sum, toxicological evidence and clinical symptoms led prosecution medical and

toxicological experts to state that their opinion beyond a reasonable doubt was that Martha

22 had died of paraquat poisoning.

23 Defendant had made statements indicating a concern that his mother planned to alter her

will to make the African Violet Society rather than defendant her primary beneficiary.

24 Although defendant faithfully had visited and cared for his mother in her later years, and

planned to have her move from Bakersfield to Fresno to be closer to him, he had made

25 statements indicating that he was tired of caring for her and wished she “would hurry up

and die.” In addition, there was evidence that Martha disapproved of his many divorces

26 and remarriages. Cash withdrawn by defendant and Martha from Martha's bank account

in November 1984 and intended as a down payment on a new home for her had not been

27 used for that purpose, and apparently remained in defendant's possession. Defendant was

the sole beneficiary of Martha's will.

28

9

1 Defendant was a weekly or biweekly visitor to Martha at the time of her death. Initially,

the prosecution presented testimony of defendant's employee that defendant had been

2 absent from work during most of the week preceding Martha's death, but the witness later

concluded that he had been mistaken. The witness then reported that defendant, who lived

3 in Fresno, left for Bakersfield either Thursday December 6, or Friday, December 7, 1984.

Defendant had visited his mother on Sunday, December 2, 1984.

4

After defendant's arrest for the murder of his mother, a bottle of paraquat dated April 1977

5 was discovered in a garage or workshop used by defendant and his former father-in-law

in their independent auto-related businesses. The cap of this bottle bore defendant's

6 fingerprint.

7 A jailhouse informant testified that defendant solicited his assistance in intimidating Edith

Ballew, defendant's third wife, who persistently had urged the authorities to investigate

8 the charged crimes and to prosecute defendant for murder. The informant also recounted

that defendant had stated: “I killed the bitches.”

9

3. Uncharged crime

10

In addition to the evidence recounted above, a large volume of uncharged crime evidence

11 was introduced indicating that defendant had murdered his fifth wife, Glenna Kaye Catlin,

by administering paraquat. She died on March 14, 1984, after 22 days of hospitalization.

12 Overwhelming evidence from clinical records and toxicological reports from tissue

samples demonstrated that she had died of paraquat poisoning. There was evidence of a

13 public argument between Glenna and defendant a few days before she began exhibiting

symptoms, as well as evidence that defendant had considered their marriage to be one of

14 convenience, that he had been unfaithful, and that Glenna had become jealous. He

received $56,785 in life insurance proceeds following her death, and there was evidence

15 that he had displayed grief at her funeral but immediately thereafter had exhibited high

spirits. There was also evidence establishing that in 1977, defendant had warned Glenna's

16 half brother regarding the dangers of paraquat, noting in particular that it would damage

the lungs.

17

Evidence that defendant previously had been convicted at a separate trial of the murder of

18 Glenna was not introduced until after the jury in the present case returned its verdict on

the murder charges and the special circumstance allegations other than the one alleging

19 the prior conviction for the murder of Glenna. At that point, defendant stipulated to the

prior-murder-conviction special-circumstance allegation.

20

4. Defense case

21

Defendant testified at length in his own behalf, denying that he had poisoned any of the

22 victims. n.2 He denied making statements indicating his belief that paraquat would be an

ideal poison for a murder. He denied knowingly possessing paraquat and, through his own

23 testimony and the testimony of others, demonstrated that the area in the garage or

workshop in which the paraquat was found was an area devoted to his father-in-law's

24 automotive business. It was established that persons other than defendant and his father-

in-law also had access to this garage.

25

--------------------FOOTNOTE--------------------

26

n.2 Defendant's credibility was impeached with a 1966 forgery conviction.

27

--------------------END FOOTNOTE--------------------

28

10

1

Defendant's roommate testified that defendant had returned to his Fresno home around

2 8:00 or 9:00 p.m. on December 6, 1984, the night Mrs. Stonebraker telephoned to report

Martha's illness. There was evidence that defendant had been in Fresno conducting

3 business on December 3, 4, 6, and 7, 1984.

4 In addition, defense evidence demonstrated that defendant's home and place of business

had been subjected to a thorough police search at the time of defendant's arrest and that

5 no paraquat bottle had been discovered. The defense also presented evidence indicating

that defendant's father-in-law (Glenna's father) had searched their joint workplace without

6 finding the bottle of paraquat, but that when the police asked him to search again, he

invited two boys to help him and found the bottle within a few minutes. Defendant also

7 attempted to establish through the testimony of an expert witness that a fingerprint could

have been planted on the bottle of paraquat, and pointed out the lax procedures under

8 which the bottle had been transported to the police station and stored pending testing. A

person employed at the agricultural enterprise where defendant had been employed

9 testified that defendant had worked there only as a mechanic, and the circumstances of his

employment would have made it unlikely he could have obtained paraquat on the job.

10

Defendant also pointed to evidence suggesting that his third wife, Edith Ballew, had been

11 engaged in a vendetta against him, having urged the authorities to investigate each death

involved in the present case as a murder. He presented witnesses who testified that he

12 appeared to have a flourishing business and did not appear to be in need of funds.

13 Friends of defendant's recalled that shortly before Joyce's hospitalization, defendant had

learned, upon his return from a trip to Mexico, that Joyce had fallen ill.

14

Dr. Bayer, a toxicologist who had some experience with paraquat poisoning, testified that

15 he could not determine beyond a reasonable doubt that Joyce had died from paraquat

poisoning. He was of the opinion that her death might be attributable to an unknown virus.

16

Dr. Buteau, a Chevron toxicologist, testified that Martha's medical records reflected she

17 may have ingested as little as a tablespoon of paraquat (still a fatal dose in his opinion)

and that she may have ingested it between two and seven days before her death. Dr.

18 Russell, a pathologist at the University of California, Davis Medical School, testified that

although Joyce's lung damage was consistent with paraquat poisoning, it was also possible

19 that it was caused by agents other than paraquat. Dr. Buteau had a reasonable doubt as to

the cause of Joyce's death.

20

Carol Johnson, a woman who had been dating defendant at the time of Martha's death

21 (and later married and divorced him), testified that she and defendant had visited Martha

on Sunday, December 2, when she and defendant brought Martha a new television set.

22 Martha complained that she had a sore throat, her ears were bothering her, and she was

taking medication for flu-like symptoms. Johnson testified that defendant was not alone

23 with his mother that day.

24 After considering the evidence, the jury found defendant guilty of the first degree murders

of Joyce and Martha, and found true the murder for financial gain, murder by poison, and

25 multiple-murder special-circumstance allegations submitted to it as to the murder of

Martha. As previously noted, after the jury returned its verdict, defendant stipulated to the

26 truth of the special circumstance allegation that he previously had been convicted of the

first degree murder of Glenna.

27

B. Penalty phase evidence

28

11

1 At the penalty phase of the trial, the prosecution introduced evidence establishing that in

1966, defendant assaulted his first wife in a fit of jealousy, choking her and throwing her

2 out of the automobile in which they were travelling. Later defendant picked her up, went

to obtain aspirin, and returned home.

3

Defendant presented the testimony of a number of members of a family he befriended

4 who described his loyalty and helpfulness as a friend. A witness testified that defendant

had saved her son's life. Defendant also presented evidence of his exceptionally positive

5 adjustment in prison. Dr. Haney, a professor of psychology at the University of California,

Santa Cruz, testified regarding the security precautions and the circumstances of

6 confinement facing prisoners serving life sentences, and stated that such prisoners usually

are compliant inmates. His review of defendant's prison record caused him to predict a

7 smooth adjustment to such confinement. Kenneth Howard, a sergeant at the state prison

where defendant was incarcerated after his conviction for the murder of Glenna, testified

8 regarding the circumstances of confinement and reported that defendant was a model

prisoner. Two supervisors at the prison testified regarding defendant's excellent work

9 habits and positive effect on other inmates.

10 At the conclusion of the penalty phase, the jury returned a verdict of death.

11

12 People v. Catlin, 26 Cal. 4th 81, 99-106 (2001) (as modified Sept. 26, 2001)).

13 III. JURISDICTION

14 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to

15 the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the

16 United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000).

17 Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The

18 challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction

19 of this Court. 28 U.S.C. §§ 2241(d), 2254(a).

20 This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C. § 2254

21 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214,

22 apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v. Lindsey, 212 F.3d 1143, 1148

23 (9th Cir. 2000) (overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).

24 IV. STANDARDS OF REVIEW

25 A. Legal Standard - Habeas Corpus

26 Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred

27 unless a petitioner can show that the state court’s adjudication of his claim:

28 (1) [R]esulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

12

1 States; or

2 (2) [R]esulted in a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.

3

4

28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-

5

71; Williams, 529 U.S. at 413.

6

“[A] state has ‘adjudicated’ a petitioner's constitutional claim ‘on the merits' for purposes of §

7

2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of substance of

8

the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule

9

precluding state court review of the merits.” Brown v. Walker, Case No. C 09-04663 JSW, 2014 WL

10

4757804, at *5 (N.D. Cal. Sept. 24, 2014) (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).

11

As a threshold matter, this court must “first decide what constitutes clearly established Federal

12

law, as determined by the Supreme Court of the United States.” Lockyer, 538 U.S. at 71 (quoting 28

13

U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this court must look to

14

the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant

15

state-court decision.” Williams, 529 U.S. at 412. “In other words, ‘clearly established Federal law’

16

under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the

17

time the state court renders its decision.” Id. In addition, the Supreme Court decision must “squarely

18

address [] the issue in th[e] case; otherwise, there is no clearly established Federal law for purposes of

19

review under AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van

20

Patten, 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v.

21

Musladin, 549 U.S. 70, 74 (2006).

22

If no clearly established Federal law exists, the inquiry is at an end and the court must defer to

23

the state court’s decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760. In

24

addition, the Supreme Court has clarified that habeas relief is unavailable in instances where a state

25

court arguably refuses to extend a governing legal principle to a context in which the principle should

26

have controlled. White v. Woodall, 572 U.S. 415, 425-26 (2014). The Supreme Court stated: “[I]f a

27

habeas court must extend a rationale before it can apply to the facts at hand, then by definition the

28

rationale was not clearly established at the time of the state-court decision.” Id. (quoting Yarborough v.

13

1 Alvarado, 541 U.S. 652, 666 (2004)).

2 If the court determines there is governing clearly established Federal law, the court must then

3 consider whether the state court's decision was “contrary to, or involved an unreasonable application of,

4 [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). “Under

5 the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion

6 opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case

7 differently than [the] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-

8 13; see also Lockyer, 538 U.S. at 72. “The word ‘contrary’ is commonly understood to mean

9 ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ” Williams, 529 U.S.

10 at 405 (quoting Webster's Third New International Dictionary 495 (1976)). “A state-court decision will

11 certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that

12 contradicts the governing law set forth in [Supreme Court] cases.” Id.

13 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the state

14 court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably

15 applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. “[A] federal court

16 may not issue the writ simply because the court concludes in its independent judgment that the relevant

17 state court decision applied clearly established federal law erroneously or incorrectly. Rather, that

18 application must also be unreasonable.” Id. at 411; see also Lockyer, 538 U.S. at 75-76. “A state

19 court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded

20 jurists could disagree on the correctness of the state court's decision.” Richter, 562 U.S. at 101, citing

21 Yarborough, 541 U.S. at 664. Therein the Supreme Court stated that

22 As a condition for obtaining habeas corpus from a federal court, a state prisoner must

show that the state court's ruling on the claim being presented in federal court was so

23 lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fair-minded disagreement.

24

25 Id. at 101-05. In other words, so long as fair-minded jurists could disagree on the correctness of the state

26 court’s decision, the decision cannot be considered unreasonable. Id. at 98-99. In applying this standard,

27 “a habeas court must determine what arguments or theories supported ... or could have supported the state

28 court’s decision; and then it must ask whether it is possible fair-minded jurists could disagree that those

14

1 arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id.

2 at 101-03. This objective standard of reasonableness applies to review under both subsections of 28

3 U.S.C. § 2254(d). Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the court determines

4 that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is

5 nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v.

6 Abrahamson, 507 U.S. 619, 637 (1993).

7 Petitioner has the burden of establishing that the decision of the state court is contrary to or

8 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94

9 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth

10 Circuit precedent remains relevant persuasive authority in determining whether a state court decision is

11 objectively unreasonable. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000); Duhaime v.

12 Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

13 The AEDPA requires considerable deference to the state courts. “[R]eview under § 2254(d)(1)

14 is limited to the record that was before the state court that adjudicated the claim on the merits,” Cullen

15 v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in federal court has no bearing on

16 2254(d)(1) review.” Id. at 185. “Factual determinations by state courts are presumed correct absent

17 clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing

18 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the

19 relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S.

20 293, 319 (1963) (overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)) (superseded by status as

21 stated in Williams v. Taylor, 529 U.S. 420 (2000)).

22 If a petitioner satisfies either subsection (1) or (2) of § 2254 for a claim, then the federal court

23 considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “[a] federal

24 court must then resolve the claim without the deference AEDPA otherwise requires.”); accord Frantz v.

25 Hazey, 533 F.3d 724, 737 (9th Cir. 2008).

26 In this case, some of petitioner’s claims and allegations were raised and rejected by the

27 California Supreme Court on direct appeal while others were raised in his state habeas petitions to that

28 court and summarily denied. In the case of summary denial, where the state court decision is

15

1 unaccompanied by an explanation, “the habeas petitioner’s burden still must be met by showing there

2 was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The Supreme Court

3 stated that “a habeas court must determine what arguments or theories supported or ... could have

4 supported, the state court’s decision; and then it must ask whether it is possible fair-minded jurists

5 could disagree that those arguments or theories are inconsistent with the holding in a prior decision of

6 this Court.” Id. at 101-03 (emphasis added). Petitioner bears “the burden to demonstrate that ‘there

7 was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th

8 Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de novo review of the

9 constitutional question,” id., as “even a strong case for relief does not mean the state court's contrary

10 conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at 102); see also Murray v. Schriro, 745

11 F.3d 984, 996-97 (9th Cir. 2014).

12 When reviewing the California Supreme Court's summary denial of a petition, this court must

13 consider that the California Supreme Court's summary denial of a habeas petition on the merits reflects

14 that court's determination that

15

[T]he claims made in th[e] petition do not state a prima facie case entitling the petitioner

16 to relief. It appears that the court generally assumes the allegations in the petition to be

true, but does not accept wholly conclusory allegations, and will also review the record

17 of the trial ... to assess the merits of the petitioner's claims.

18

19 Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal. 4th 750, 770 (1993)); see also Johnson v.

20 Williams, 568 U.S. 289, 300–01 (2013) (holding that even where the state court does not separately

21 discuss a federal claim there is a presumption that that state court adjudicated the federal claim on the

22 merits); see also Richter, 562 U.S. at 99–100 (holding that “2254(d) does not require a state court to

23 give reasons before its decision can be deemed to have been adjudicated on the merits.”

24 Accordingly, if this court finds petitioner has unarguably presented a prima facie case for relief

25 on a claim, the state court's summary rejection of that claim would be unreasonable. Taylor v. Maddox,

26 366 F.3d 992, 1000 (9th Cir. 2004) (overruled on other grounds by Garcia v. Robertson, 2019 WL

27 3938507 (9th Cir. Aug. 20, 2019)); see also Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).

28 For any habeas claim that has not been adjudicated on the merits by the state court, the federal

16

1 court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. §

2 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160,

3 1167 (9th Cir. 2002). For example, claims denied solely on procedural grounds are reviewed de novo.

4 Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003). In such instances, however, the provisions of 28

5 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185 (“Section 2254(e)(2) continues to have force where

6 § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d at 1167–68 (stating that state court

7 findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo).

8 According to the Ninth Circuit:

9

In a habeas corpus proceeding, we do not review a question of federal law decided by a

10 state court “if the decision of that court rests on a state law ground that is independent of

the federal question and adequate to support the judgment.” Coleman v. Thompson, 501

11 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This doctrine “applies to bar

federal habeas review when the state court has declined to address the petitioner's federal

12 claims because he failed to meet state procedural requirements.” McKenna v. McDaniel,

65 F.3d 1483, 1488 (9th Cir.1995). If a petitioner has procedurally defaulted, we do not

13 review the claim unless the petitioner “can establish cause and prejudice or that a

miscarriage of justice would result in the absence of our review.” Moran v. McDaniel, 80

14 F.3d 1261, 1270 (9th Cir.1996).

15

16 Vang, 329 F.3d at 1072.

17

Procedural default is an affirmative defense. Bennett v. Mueller, 322 F.3d 573, 585 (9th

18 Cir.2003). Generally, the state must assert the procedural default as a defense to the

petition before the district court; otherwise the defense is waived. Franklin v. Johnson,

19 290 F.3d 1223, 1229 (9th Cir.2002). However, the district court retains discretion to

consider the issue sua sponte if the circumstances warrant. Boyd v. Thompson, 147 F.3d

20 1124, 1128 (9th Cir.1998).

21 In Boyd, we recognized that the district court may, sua sponte, raise the issue of procedural

default when the default is obvious from the face of the petition and when recognizing the

22 default would “further the interests of comity, federalism, and judicial efficiency.” Id.

23

24 Id., at 1073.

25 “A state procedural rule is “adequate” if it is “clear, consistently applied, and well-established at

26 the time of the petitioner's purported default.” Calderon v. United States Dist. Court, 96 F.3d 1126, 1129

27 (9th Cir.1996).” Id.

28 “A state procedural bar is “independent” if the state court explicitly invokes the procedural rule

17

1 as a separate basis for its decision. McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995). For a

2 state law ground to be “independent,” it must not be interwoven with federal law. See La Cross v. Kernan,

3 244 F.3d 702, 704 (9th Cir. 2001). A state court's decision is not “independent” if the application of a

4 state's default rule depends on a consideration of federal law. Park v. California, 202 F.3d 1146, 1152

5 (9th Cir.2000). If the state court's decision fails “to specify which claims were barred for which reasons,”

6 we have held that the ambiguity serves to defeat the independence of the state procedural bar. Valerio v.

7 Crawford, 306 F.3d 742, 775 (9th Cir. 2002).

8 V. PROCEDURAL BARS

9 As noted, certain of petitioner’s claims or aspects thereof were denied by the California

10 Supreme Court as procedurally barred. As to those claims, Respondent has invoked the noted

11 independent state ground doctrine, pursuant to which a federal court will not review a question of

12 federal law decided by a state court “if the decision of that court rests on a state law ground that is

13 independent of the federal question and adequate to support the judgment.” Vang, 329 F.3d at 1069

14 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

15 Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v. Baldwin, 510

16 F.3d 1127, 1139 (9th Cir. 2007) (citing Coleman, 501 U.S. at 750), and “prejudice” essentially requires

17 a merits analysis, the court will proceed to the merits of claims found to be procedurally defaulted and

18 review them de novo without determining whether the state procedural default is adequate and

19 independent to bar relief in federal court. Id. (citing Coleman, 501 U.S. 732-35); see also Franklin v.

20 Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts empowered to reach the merits if on their face

21 clearly not meritorious despite asserted procedural bar); Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an

22 application for habeas corpus may be denied on the merits even if unexhausted in state court); Loggins

23 v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits where petition is

24 clearly not meritorious despite asserted procedural bar).

25 Under Martinez v. Ryan, 566 U.S. 1, (2012), the procedural default of a substantial claim of

26 ineffective assistance of trial counsel is excused where state law requires that all claims be brought in

27 the initial collateral review proceeding and counsel in that proceeding was ineffective. See Ramirez v.

28 Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019). A substantial claim of claim of ineffective assistance of

18

1 trial counsel is one which has “some merit.” Id., citing Martinez, 566 U.S. at 14-16. Conversely, an

2 insubstantial claim of ineffective assistance of trial counsel “does not have any merit or [ ] is wholly

3 without factual support.” Id.

4 “Thus, to establish cause and prejudice in order to excuse the procedural default of his

5 ineffective assistance of trial counsel claim, Ramirez must demonstrate the following: (1) post-

6 conviction counsel performed deficiently; (2) there was a reasonable probability that, absent the

7 deficient performance, the result of the post-conviction proceedings would have been different, Id.; and

8 (3) the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that

9 the prisoner must demonstrate that the claim has some merit.” Ramirez, 937 F.3d at 1242.

10 To the extent claims already adjudicated were later denied on procedural grounds, the Court finds

11 these claims remain ripe for federal adjudication. See e.g., Cone, 556 U.S. 449, 466-67 (2009); see also

12 Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) (applying look through doctrine to Waltreus bars);

13 Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (9th Cir. 1986) (applying look through doctrine to Miller

14 bars).

15 VI. PRELIMINARY MATTERS

16 The court takes judicial notice of the certified record on appeal to the California Supreme Court,

17 all documents on file in the California Supreme Court in the case of People v. Catlin, Case No.

18 S016718, (Kern County Superior Court No. CR30954), and all declarations, witness statements, and

19 records filed on petitioner’s behalf in his first state habeas corpus proceeding before the California

20 Supreme Court, In re Catlin, Case No. S090636 including portions of the Reporter’s Transcript and

21 Clerk’s Transcript in People v. Steven D. Catlin (Monterey County Superior Court No. CR 11388) (see

22 1SHCP Ex.’s 100-102), and in his second state habeas corpus proceeding before the California

7

23 Supreme Court, In re Steven David Catlin, Case No. S173793 (see Doc. No. 98).

24 Petitioner’s request for judicial notice of the entire record in People v. Steven D. Catlin

25 (Monterey County Superior Court No. CR 11388) and its associated appeal in the Sixth District Court

26 of Appeal (Cal Ct. App. Case No. H002078, June 13, 1988) is denied because he has not demonstrated

27

28 7

To the extent Petitioner requests to expand the record to include the noted state appeal and habeas records already included

in the state record, the request is denied as moot. (See Doc. No. 25 at n.9.)

19

1 that those materials were before the state supreme court at the time it rendered its decision, or properly

2 the subject of record expansion.8 28 U.S.C. § 2254(d)(2; Pinholster, 563 U.S. at 181, 185.

3 VII. REVIEW OF CLAIMS9

4 A. Claims Alleging Trial Court Error at the Guilt Phase

1. Legal Standard

5

Trial court error violates due process where it renders the resulting criminal trial fundamentally

6

unfair. Chambers v. Mississippi, 410 U.S. 284, 294, 303 (1973).

7

In evaluating a claim of instructional error, a single instruction is not viewed in isolation, but

8

rather in the context of the overall charge. Spivey v. Rocha, 194 F.3d 971, 976 (1999). “[T]he proper

9

inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged

10

instruction” in an unconstitutional manner. Boyde v. California, 494 U.S. 370, 380 (1990).

11

Additionally, a reviewing court does not engage in a technical parsing of the instruction’s

12

language, but instead approaches the instructions in the same way that the jury would -- with a

13

“commonsense understanding of the instructions in the light of all that has taken place at the trial.”

14

Johnson v. Texas, 509 U.S. 350, 368 (1993). Lastly, federal courts presume that juries follow

15

instructions, including cautionary instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); see also

16

Boyde, 494 U.S. at 381-85; Tan v. Runnels, 413 F.3d 1101, 1115 (2005).

17

Any error in the state court’s determination of whether state law supported an instruction in this

18

case cannot form the basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 71 (1991)

19

(“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the

20

wisdom of state evidentiary rules”).

21

Even if constitutional instructional error has occurred, the federal court must still determine

22

whether petitioner suffered actual prejudice, that is, whether the error “had substantial and injurious

23

effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. A “substantial and

24

injurious effect” means a “reasonable probability” that the jury would have arrived at a different verdict

25

26

8

The prior conviction issued in Monterey County is final and presumed valid. See Lackawanna County District Attorney, et

27 al., v. Coss (Lacakawanna), 532 U.S. 394, 402-04 (2001).

9

The petition numbers claim “57” as claim “47” (Doc. No. 25 at 521), fails to number claims 58 (Doc. No. 25 at 566) and 59

28 (Doc. No. 25 at 589), and includes two claims 67 (Doc. No. 25 at 641-56) which hereinafter are referred to by the court as

claims 67(1) and 67(2).

20

1 had the instruction been given. Clark, 450 F.3d at 916.

2 2. Claims 1, 2 and 4

3 Petitioner alleges the trial court erred by admitting evidence of the prior Monterey County

4 proceeding on the death of Glenna as evidence of an uncharged crime (i.e. claim 1) committed for

5 “financial gain” (i.e. claim 2), and instructing the jury thereon (i.e. claim 4), denying him due process,

6 equal protection, an impartial jury, a fair trial, a reliable sentence and placing him in double jeopardy,

7 violating his rights under the Fifth, Sixth, Eighth and Fourteenth. (Doc. No. 25 at 68-86, 95-97.)

8 a. State Court Direct and Collateral Review

9 i. Claim 1

10 Petitioner’s allegation that admission of “other crimes” evidence violated his state and federal

11 rights to due process, equal protection, a fair trial, a reliable conviction and sentence, and freedom from

12 double jeopardy, under the Fifth, Eighth and Fourteenth Amendments was considered on direct appeal

13 and denied on the merits and as procedurally defaulted. Catlin, 26 Cal. 4th at 119-23.

14 The claim was raised in the second state habeas petition and denied on procedural grounds

10

15 including raised and rejected on direct appeal (In re Waltreus). (Order No. S173793.)

16 ii. Claim 2

Petitioner’s allegation that admission of testimony that he gained financially from Glenna’s

17

murder violated his Fifth (double jeopardy) and Eighth (reliable sentence) rights was considered on

18

direct appeal and denied on the merits. Catlin, 26 Cal. 4th at 123-28.

19

The claim was raised in the second state habeas petition and denied on procedural grounds

20

including raised and rejected on direct appeal (In re Waltreus). (Order No. S173793.)

21

iii. Claim 4

22

Petitioner’s allegation that the jury instructions regarding the uncharged crime evidence denied

23

him due process, an impartial jury and a reliable conviction and sentence pursuant to the Fifth, Sixth,

24

Eighth, and Fourteenth Amendments was considered on direct appeal and denied on the merits. Catlin,

25

26

27 10

A federal habeas court looks through a Waltreus order to the prior state court decision. See Ylst v. Nunnemaker, 501 U.S.

797, 805–06 (1991).

28

21

1 26 Cal. 4th at 144-47.

2 The claim was raised in the second state habeas petition and denied on procedural grounds

3 including raised and rejected on direct appeal (In re Waltreus). Order No. S173793.

4 b. Analysis

5 i. Admission of Uncharged Crime Evidence

Petitioner argues the Kern County trial court, over defense objection (RT 37-39, 49-56; CT

6

1892-99) errantly admitted subject to proper foundation evidence from the Monterey proceeding

7

concerning the death of Glenna as other crimes evidence, finding it probative. (Id.) He argues his

8

federal constitutional claims were not addressed on the merits by the California Supreme Court and that

9

factfinding by that court was unreasonable and that rejection of the claim by that court should be

10

reviewed de novo by this Court. (See e.g., Doc. No. 95 at 98.)

11

Petitioner’s arguments are discussed separately, below.

12

(1) Paraquat Poisoning

13

Petitioner argues that even though the Kern County jury was not formally informed prior to its

14

guilt phase verdict of Petitioner’s conviction in Monterey County for the first-degree murder of Glenna

15

(as required by Penal Code § 190.1(a)); (see RT 5352-54), the other crimes evidence that had been

16

admitted suggested Petitioner poisoned Joyce with paraquat just as he poisoned Glenna (RT 37, 49; CT

17

1883) prejudicially confusing and distracting the jury with improper criminal propensity evidence. (See

18

Doc. No. 25 at 68 citing Smith v. Massachusetts, 543 U.S. 462 (2005); Brazzel v. Washington, 491 F.3d

19

976, 981 (9th Cir. 2007).

20

He notes that prosecution experts in the Monterey proceeding, Drs. Kilburn and Stephens,

21

testified there that paraquat was one of a number of possible causes of Joyce’s death (RT 4033-36 [Dr.

22

Kilburn]; RT 3765 [Dr. Stephens]). Petitioner suggests that admission of the evidence impermissibly

23

lessened the prosecution’s burden of proving the charged offenses.

24

The state supreme court denied the allegations on direct appeal, stating that:

25

26

Defendant contends the court erred in permitting the prosecution to introduce evidence

27 regarding the murder of Glenna. As noted, defendant's prior conviction for this crime

was not admitted until after the jury reached its guilty verdict (see § 190.1, subds. (a) &

28 (b) [trial of a special circumstance allegation that the defendant has suffered a prior

murder conviction shall be held only after the jury has reached a guilty verdict and made

22

1 findings on any other special circumstance allegation]), but evidence regarding the

murder of Glenna was admitted as evidence of an uncharged crime made admissible by

2 Evidence Code section 1101. Defendant, however, contends that the murder of Glenna

did not bear common marks with the charged murders of Joyce and Martha. He contends

3 the evidence relating to Glenna was not material to the issue of identity and did not tend

to establish a common scheme or plan.

4

Before trial, the prosecutor moved to admit evidence that defendant had murdered

5 Glenna by administering paraquat. The prosecutor contended this evidence tended to

demonstrate that Martha and Joyce were poisoned by a criminal agency, that this

6 criminal agency was paraquat, and that defendant was the person responsible for the

murders. Defendant objected on the basis of Evidence Code section 1101, subdivision

7 (b). The trial court announced that it would review the preliminary hearing transcript and

the transcript of the hearing held on a motion pursuant to section 995. The following

8 day, defense counsel urged that the evidence concerning Glenna was weak, did not

establish beyond a reasonable doubt defendant's responsibility for her murder, had little

9 probative value in the present trial, but would have considerable prejudicial impact. The

court ruled that the evidence was probative and could be admitted.

10

We review the trial court's determination for an abuse of discretion, examining the

11 evidence in the light most favorable to the court's ruling. (People v. Kipp, supra, 18

Cal.4th at pp. 369, 370.)

12

We have observed above that, despite the prohibition against admitting evidence of an

13 uncharged crime to demonstrate a defendant's criminal propensity, such evidence is

admissible to show identity or the existence of a common scheme or plan. (People v.

14 Kipp, supra, 18 Cal.4th at p. 369.) This type of evidence, when offered on the issue of

identity, “must be highly similar to the charged offenses.” (Ibid.) Evidence tending to

15 establish a common plan or design should demonstrate “ 'not merely a similarity in the

results, but such a concurrence of common features that the various acts are naturally to

16 be explained as caused by a general plan of which they are the individual

manifestations.' ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)

17

In the present case, the charged and uncharged crimes bore a number of highly

18 distinctive common marks. As we already have discussed in connection with defendant's

severance claim, each victim was a close female relative of the defendant-wife or

19 mother. In each instance, the defendant stood to gain financially from the victim's death.

In the case of Glenna and Martha, it was overwhelmingly established that the victims

20 had ingested paraquat before death. Expert opinion evidence based on observations

regarding the clinical course of each woman's illness established that the cause of death

21 for all three victims was paraquat poisoning. Such poisoning is rare and is unlikely to be

the cause of death for three persons closely related to one individual. Rather, the

22 occurrence of three similar poisonings of related persons supports inferences regarding

identity and a common plan. (See People v. Diaz, supra, 3 Cal.4th at pp. 561-562

23 [multiple lidocaine poisonings]; People v. Ruiz, supra, 44 Cal.3d at pp. 605-606

[repeated disappearances of the wives of the defendant]; People v. Archerd, supra, 3

24 Cal.3d at pp. 621, 638 [multiple insulin poisonings of relatives of defendant].) The

murders of Glenna and Joyce bore other common marks-in each case the victim was the

25 defendant's wife, each woman was healthy, then initially suffered flu-like symptoms,

followed by respiratory collapse over a period of days. Evidence that defendant had

26 poisoned one wife was relevant to establish that another apparently healthy wife had

died through a criminal agency, namely poison. (See People v. Ruiz, supra, 44 Cal.3d at

27 p. 606.)6 The trial court did not abuse its discretion in determining that the evidence of

the uncharged crime was relevant to identity and to show a common scheme or plan.

28

23

1 --------------------FOOTNOTE--------------------

2 n.6 Defendant improperly refers to statements of the trial court in the Monterey County

prosecution that led to his conviction for the murder of Glenna. We denied defendant's

3 request to augment the record on appeal to include the transcript of the Monterey County

trial, and that transcript is not part of the record on appeal in the present case.

4

5 --------------------END FOOTNOTE--------------------

6

Defendant complains that evidence establishing that Glenna died by paraquat poisoning

7 should not have been introduced to show that Joyce died of the same cause. He contends

that toxicological evidence existed to demonstrate that paraquat was the cause of

8 Glenna's death, but that there was no toxicological evidence supporting the opinions of

the prosecution's expert witnesses who had concluded that Joyce died of paraquat

9 poisoning. In fact, he complains, the expert opinion evidence pertaining to Joyce was

based not solely upon clinical observations regarding the course of her illness but also in

10 part upon the evidence demonstrating that Glenna and Martha had died by paraquat

poisoning. He accuses the prosecution of creating the common marks between the

11 killing of Glenna and Joyce, rather than relying upon existing features in common

between the two killings.

12

As we have observed, the common marks between the murders of Glenna, Martha, and

13 Joyce certainly were relevant to establish that all three died pursuant to a common

design. It was not necessary that the prosecution be able to prove that Joyce died of

14 paraquat poisoning by evidence entirely independent of the evidence relating to the

murder of Glenna.7 And, of course, the evidence relating to the uncharged murder of

15 Glenna was not the only evidence tending to show the cause of Joyce's death. Evidence

relating to the charge that defendant killed his mother Martha by paraquat poisoning had

16 the same effect vis-a-vis the murder of Joyce. Strong expert opinion testimony based on

clinical evidence and postmortem examination of tissue also supported the conclusion

17 that Joyce died of paraquat poisoning.

18

--------------------FOOTNOTE--------------------

19

n.7 Defendant emphasizes that the information charging that he murdered Joyce did not

20 include an allegation that the murder was committed by means of poison. We do not

believe that this circumstance strengthens defendant's claim that the evidence pertaining

21 to Glenna was not relevant to show identity or a common scheme or plan. As noted, the

murder of Glenna was relevant to show a criminal agency in the death of Joyce, and to

22 support an inference as to the identity of her murderer.

23

--------------------END FOOTNOTE--------------------

24

25 Defendant makes a related claim that the evidence of the uncharged crime was more

prejudicial than probative. He contends the evidence that was related to Glenna was

26 unduly prejudicial, because the jury necessarily would realize that defendant had

suffered a prior conviction for murder.

27

Evidence of an uncharged crime may be admitted only if its substantial probative value

28 is not outweighed by a danger of undue prejudice, of confusion of the issues, or of

misleading the jury. “On appeal, a trial court's resolution of these issues is reviewed for

24

1 abuse of discretion. [Citation.] A court abuses its discretion when its ruling 'falls outside

the bounds of reason.'” (People v. Kipp, supra, 18 Cal.4th at p. 371.)

2

The jury was not informed that defendant had suffered a conviction for the murder of

3 Glenna until after it had returned its guilty verdict. Clearly, evidence regarding the

circumstances of the murder of Glenna was of substantial probative value. In ruling

4 upon the motion to admit evidence of Glenna's murder, the trial court reasonably could

conclude that the probative value of the evidence outweighed the risk that the jury might

5 suspect that defendant had been convicted of the murder of Glenna, despite the

procedural protection provided by section 190.1. As respondent claims, the prospect of

6 undue prejudice arising from a suspicion regarding a prior conviction was speculative,

because the prosecutor did not plan to offer evidence of the conviction until after the

7 guilty verdict. When at trial, as defendant now complains, an expert witness undergoing

defense cross-examination referred to his testimony in a “prior trial,” defendant did not

8 object or seek an admonition to the jury, and that prior testimony, of course, was not

before the trial court when it ruled on the motion pursuant to Evidence Code section

9 1101.

10 Defendant claims that the trial court erred prejudicially in failing to place on the record

the process by which it concluded that the probative value of the evidence outweighed

11 its prejudicial impact, but such explanations are not required. (People v. Waidla (2000)

22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 996 P.2d 46].) In any event, it is clear

12 that the court carefully considered lengthy transcripts, written motions, and the

arguments of counsel in reaching its conclusion, taking the matter under submission for

13 a day in order to complete its review.

14 Defendant's contention that the admission of the other-crimes evidence violated his state

and federal constitutional right to a fair trial is waived because it was not raised below.

15 (People v. Carpenter (1997) 15 Cal.4th 312, 385 [63 Cal.Rptr.2d 1, 935 P.2d 708].)8 In

addition, he does not provide authority establishing that a state law permitting the

16 admission of evidence of uncharged crimes violates a defendant's right to a fair trial.

Reference to two federal cases discussing due process limitations on the admission of

17 irrelevant character or criminal propensity evidence is unpersuasive; in both instances,

the federal court determined that the disputed evidence was not material to any

18 legitimate issue. (See Henry v. Estelle (9th Cir. 1994) 33 F.3d 1037, 1042, revd. on

another point in Duncan v. Henry (1995) 513 U.S. 364 [115 S.Ct. 887, 130 L.Ed.2d

19 865]; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1382-1385; see also People v.

Falsetta (1999) 21 Cal.4th 903, 913-914 [89 Cal.Rptr.2d 847, 986 P.2d 182].) By

20 contrast, we have determined that the disputed evidence in the present case was material

to issues of identity and common scheme or plan and was admissible under Evidence

21 Code section 1101.

22 --------------------FOOTNOTE--------------------

23 n.8 Defendant also claims perfunctorily that the admission of this evidence violated his

right under the state and federal Constitutions to a reliable guilt and penalty

24 determination. This claim, too, is waived and in any event is without merit. (See People

v. Jenkins, supra, 22 Cal.4th at p. 1044.)

25

26 --------------------END FOOTNOTE--------------------

27

28 Catlin, 26 Cal. 4th at 119-23.

25

1 The state supreme court reasonably denied these allegations for the reasons stated by that court

2 and the claim otherwise lacks merit upon de novo review, as discussed below. As noted by that court,

3 under state law, while “other crimes” evidence “is inadmissible when offered to prove [a person’s]

4 conduct on a specified occasion” (Doc. No. 25 at 70, citing Evid. Code. § 1101(a)), “evidence that a

5 person committed crime, civil wrong, or other act when relevant to prove some fact (such as motive,

6 opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident)” is not

7 prohibited (id., citing Evid. Code § 1101(b)). The state supreme court, given the record before it

8 reasonably could find the probative value of “other crimes” evidence outweighed inherent prejudice as

9 argued by Petitioner. (See Doc. No. 25 at 97 citing Evid. Code § 1101.)

10 Particularly, that court reasonably could find Petitioner failed to demonstrate on the record the

11 jurors were confused and distracted the evidence (see Doc. No. 25 at 69), or that the prosecutor

12 improperly used the evidence to show a propensity to commit the charged crimes. (See id., 69-70,

13 citing Evid. Code § 1101(a)). Petitioner’s speculates the prosecutor’s presentation and argument of the

14 “other crimes” evidence at the beginning and end of the state’s case in the Kern County trial prejudiced

15 the jury’s determination of the cause of death of Joyce and Martha (Doc. No. 25 at 74-75) but fails to

16 show how this admissible evidence resulted in an unfair proceeding.

17 The state supreme court reasonably could find the extensive and disparate expert opinion

18 evidence, otherwise admissible, presented a question of persuasive weight for the jury rather than

19 raising an inference of prejudice. Petitioner points out that while in 1976, Dr. Kilburn was unable to

20 form an opinion whether paraquat was the cause of Joyce’s death (RT 4034-35), at the 1990 Kern

21 County trial, with the benefit of information that “came out in a previous [Monterey County] trial for

22 the death of Glenna” and other information received in the investigation of the deaths of Glenna and

23 Martha, Dr. Kilburn testified that paraquat was the “most likely” cause of Joyce’s death. (RT 4037.)

24 He observes that similarly, Dr. Stephens opinion of cause of Joyce’s death was influenced by the

25 “investigative and clinical course” as well as microscopic findings. (RT 3765.) While Dr. Stephens

26 concluded Joyce died of paraquat poisoning (RT 3765-3771), he testified on cross-examination that if

27 he only had the “the microscopic slides on Joyce, [he] . . . would have to consider a viral infection” as

28 the cause of death. (RT 3823, 3810.) However, the state supreme court reasonably could find such

26

1 matters went to weight rather than admissibility.

2 The state supreme court reasonably could find Petitioner failed to show constitutional error arising

3 from what he characterizes as cumulative evidence relating to the Glenna and Martha homicides

4 bootstrapping otherwise insufficient evidence that Joyce died from paraquat poisoning. (See Doc. No.

5 25 at 74; citing 1SHCP Ex. 102 at 112, 181, 184, 189-95, 1161.) He points out the autopsy following

6 Joyce’s 1976 death found no trace of paraquat in her tissues or evidence of foul play (RT 3217, 3452-

7 58); Count I of the amended information did not allege that Joyce had been killed by the administration

8 of poison (see CT 1395-96); and there was no direct tissue analysis evidence showing Joyce died from

9 paraquat poisoning (see Doc. No. 25 at 70 n.38 citing Evid. Code §352; see also Doc. No. 25 at 73-74

10 citing 1SHCP Ex. 102 at 181).

11 However, the argument reasonably could be seen as unavailing for the reasons stated above by

12 the state supreme court in finding the trial court did not err in admitting the “other crimes” evidence.

13 Petitioner does not demonstrate the evidence was inadmissible to the extent it may have been probative

14 of only circumstantial evidence. (See Doc. No. 25 at 77.)

15 Furthermore, Petitioner’s argument the “other crimes” evidence allowed the Kern County jury to

16 conclude petitioner had been convicted of Glenna’s murder during the guilt phase, contrary to Penal Code

11

17 section 190.1(a), was reasonably rejected by the state supreme court. The jury presumably understood

18 and followed their instructions as to the criminal counts and evidence before them during guilt

19 deliberations, which did not include the prior conviction. (CT 1926.)

20 Notably, this is not a case like McKinney v. Rees, 993 F.2d 1378, 1386 (9th Cir. 1993), relied

21 upon by Petitioner. (See Doc. No.95 at 98.) The McKinney court found prejudice under Brecht “because

22 of the lack of a weighty case against McKinney, and pervasiveness of the erroneously admitted evidence

23 throughout the trial, we think it highly probable that the error had substantial and injurious effect or

24 influence in determining the jury's verdict.” McKinney, 993 F.2d at 1386. Such is not the case here, for

25

26 11

Penal Code section 190.1(a) provides in pertinent part as follows: “A case in which the death penalty may be imposed

pursuant to this chapter shall be tried in separate phases as follows: (a) The question of the defendant’s guilt shall be first

27 determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of

all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to

28 paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted of the offense of

murder in the first or second degree.”

27

1 the reasons stated.

2 State law error, if any there be, is not alone a basis for relief. Dunckhurst v. Deeds, 859 F.2d

3 110, 114 (9th Cir. 1988),

4 (2) Financial Gain

5 Petitioner faults the trial court for admission of evidence regarding financial gain in connection

6 with the murder of Glenna Catlin, evidence relating to a special circumstance allegation that was

7 dismissed by the Monterey trial court. (See Doc. No. 25 at 78, citing RT 3511-14, 1SHCP Ex. 102 at

8 840-44.) He states that the trial court in the Kern County proceeding admitted evidence of Petitioner’s

9 alleged financial gain motive in Glenna’s murder, that he had received over $112,000 in death benefits.

10 (See 1SHCP Ex. 102 at 548-53; RT 3514-19, 4054-55.) He argues this financial gain evidence suggested

11 to the jury that Petitioner had the same motive in the Joyce and Martha homicides. (Doc. No. 25 at 79.)

12 He argues his rights to due process, a reliable sentence, and freedom from double jeopardy were violated

13 thereby.

14 The states supreme court denied the allegation, stating that:

15

Defendant contends that evidence that he received life insurance proceeds after Glenna

16 died should have been excluded under the collateral estoppel doctrine. He claims

violations of the federal constitutional protection against being placed twice in jeopardy

17 and of his federal constitutional right to a fair trial and a reliable verdict.

18 At trial, defendant made an in limine motion to exclude evidence regarding the payment

defendant had received as the beneficiary of Glenna's life insurance policy. He contended

19 the evidence should be excluded under the doctrine of collateral estoppel because, on

motion of the defense pursuant to section 1118.1, the court entered a not true finding as

20 to the special circumstance alleging murder for financial gain. In support, he offered one

page from the clerk's transcript of that trial-a minute order indicating the granting of the

21 section 1118.1 motion as to that special circumstance allegation. The trial court in the

present case determined that although the trial court in the Monterey County trial had

22 found the evidence presented in that trial insufficient to support a true finding that the

murder of Glenna had been undertaken for financial gain, that ruling did not preclude the

23 introduction of evidence relating to defendant's motive for killing Glenna in the separate

trial for the murders of Joyce and Martha.

24

Under the collateral estoppel doctrine, which is a component of the Fifth Amendment's

25 double jeopardy clause (People v. Santamaria (1994) 8 Cal.4th 903, 912, fn. 3 [35

Cal.Rptr.2d 624, 884 P.2d 81]), “when an issue of ultimate fact has once been determined

26 by a valid and final judgment, that issue cannot again be litigated between the same parties

in any future lawsuit.” (Ashe v. Swenson (1970) 397 U.S. 436, 443 [90 S.Ct. 1189, 1194,

27 25 L.Ed.2d 469].) In the present case, however, defendant was not on trial for the murder

of Glenna, and the question whether defendant murdered her for financial gain within the

28 meaning of section 190.2, subdivision (a)(1), was not an issue of ultimate fact to be

determined in the present proceeding.

28

1

We observe that the collateral estoppel doctrine does not prohibit the admission of

2 evidence that has been introduced in a trial resulting in an acquittal from being admitted

for all purposes at a subsequent proceeding. As the United States Supreme Court declared

3 in Dowling v. United States (1990) 493 U.S. 342, 348 [110 S.Ct. 668, 672, 107 L.Ed.2d

708], the doctrine does not “exclude in all circumstances ... relevant and probative

4 evidence that is otherwise admissible ... simply because it relates to alleged criminal

conduct for which a defendant has been acquitted.” The Dowling case is instructive

5 because, like the present case, it involved evidence of uncharged crimes. The defendant

in Dowling had been acquitted of burglary and attempted robbery, but evidence relating

6 to those charges nonetheless was introduced against him in a subsequent prosecution for

a different robbery. The evidence of the uncharged crime was relevant to establish the

7 defendant's modus operandi. Introduction of such evidence did not violate the collateral

estoppel doctrine, because “the prior acquittal did not determine an ultimate issue in the

8 present case.” (Id. at p. 348 [110 S.Ct. at p. 672].) Because in the subsequent trial the

prosecution was not required to establish beyond a reasonable doubt the defendant's

9 identity as the robber in the uncharged crime involved in the prior trial, collateral estoppel

principles did not bar introduction of that evidence in the subsequent unrelated trial.

10

Also instructive is this court's decision in People v. Santamaria, supra, 8 Cal.4th 903. In

11 that case we determined that (assuming the doctrine of collateral estoppel applied to retrial

of the same case) a prior not true finding on an allegation that a defendant had used a knife

12 in connection with a murder did not, at a subsequent retrial for the murder, bar evidence

establishing the defendant's use of the knife. We explained: “[T]he jury's not true finding

13 on the enhancement allegation does not mean defendant did not use the knife, only that

there was a reasonable doubt that he did. In Ashe [v. Swenson, supra, 397 U.S. 436], the

14 verdict, viewed realistically, showed the jury had a reasonable doubt as to the defendant's

identity as the robber. That doubt necessarily precluded conviction of the robbery charge.

15 But the same doubt as to the knife use did not preclude a murder conviction here, although

it did mandate a not true enhancement finding. [¶] Evidence that defendant personally

16 used a knife was highly relevant to show that he was guilty of murder as that offense is

defined by statute. That evidence, together with the evidence that if he did not use a knife,

17 he was guilty as the aider and abettor, combined to permit the murder conviction. But the

specific fact of personal use does not have to be proved beyond a reasonable doubt to find

18 defendant guilty of murder. Hence, personal use is not an 'ultimate fact' of murder.”

(People v. Santamaria, supra, 8 Cal.4th at p. 922, italics omitted.)

19

Examining the same case, the Ninth Circuit Court of Appeals agreed: “In this case, the

20 State failed to prove beyond a reasonable doubt the ultimate fact that Santamaria used a

knife for the weapon enhancement in the first trial. However, to convict him of murder

21 under California law, the State is not required to prove beyond a reasonable doubt that

Santamaria used a knife. [Citation.] Therefore, the use of a knife is not an ultimate fact

22 for the retrial, and the State cannot be precluded from presenting evidence that Santamaria

stabbed the victim.” (Santamaria v. Horsely (9th Cir. 1998) 133 F.3d 1242, 1247; see also

23 People v. Memro (1995) 11 Cal.4th 786, 821-822 [12 Cal.4th 783d, 47 Cal.Rptr.2d 219,

905 P.2d 1305] [the trier of fact's finding at a prior trial that a felony-murder special

24 circumstance was not true did not collaterally estop the retrial of the murder charge on a

felony-murder theory].) As with the not true finding on the knife-use allegation in

25 Santamaria, and the felony-murder allegation in Memro, the not true finding on the

murder for financial gain special-circumstance allegation in the trial for Glenna's murder

26 merely established that the state in the prior proceeding had been unable to prove beyond

a reasonable doubt that defendant had murdered Glenna for financial gain as charged in

27 the murder for financial gain special circumstance. In the present case, however, the

prosecution was not required to establish that fact beyond a reasonable doubt or, indeed,

28 to prove it at all.

29

1 Defendant claims that special circumstance allegations necessarily are part of the

prosecutor's burden of proof in a capital case, unlike the personal use of a knife in a

2 prosecution for murder. He contends that “determination of a special circumstance is an

ultimate fact” and that the financial-gain special-circumstance allegation relating to the

3 murder of Glenna could not be relitigated. His contention is unpersuasive, because

although the financial-gain special-circumstance allegation formed part of the prosecutor's

4 burden of proof in the trial for the murder of Glenna, there was no special circumstance

allegation in the present case that defendant had murdered Glenna for financial gain. Such

5 an allegation relating to the murder of Glenna was not charged and was not part of the

prosecutor's burden of proof at the guilt phase in the present case and, indeed, it was not

6 being relitigated at all in this proceeding.

7 Defendant relies upon Bullington v. Missouri (1981) 451 U.S. 430 [101 S.Ct. 1852, 68

L.Ed.2d 270] in support of his claim that once a special circumstance allegation is found

8 not true, it may not be retried.

9 The court in Bullington determined on double jeopardy grounds that the prosecution could

not seek the death penalty on retrial of a case in which the jury originally had imposed a

10 life sentence. Under Missouri law, the prosecution was required to prove certain facts

beyond a reasonable doubt at the penalty hearing, and the jury's penalty determination had

11 “the hallmarks of the trial on guilt or innocence.” (Bullington v. Missouri, supra, 451 U.S.

at p. 439 [101 S.Ct. at p. 1858].) Accordingly, the defendant could not be subject to retrial

12 as to penalty after the trial court granted his motion for new trial on the basis of guilt phase

error.

13

The Bullington case does not assist defendant's present claim, because the court in that

14 case did not determine that in a trial for different capital crimes, evidence regarding a

crime of which the defendant was convicted but for which the death penalty was not

15 imposed could not be admitted. The case merely established that factual findings favorable

to the defendant made at the penalty phase of a capital trial barred retrying the penalty

16 determination in that case. The Bullington case does not stand for the proposition that

evidence relevant to a special circumstance allegation that was found not true-and also

17 relevant to the underlying murder, of which a defendant was convicted-cannot be admitted

for the purpose of establishing guilt of different crimes in a separate trial.9

18

19 --------------------FOOTNOTE--------------------

20 n.9 Contrary to defendant's claim, this evidence was not made inadmissible by section

1118.2, which provides: “A judgment of acquittal entered pursuant to the provisions of

21 Section 1118 or 1118.1 shall not be appealable and is a bar to any other prosecution for

the same offense.” Defendant was not being prosecuted for the murder of Glenna, and

22 no appeal of the not true finding on the financial gain special circumstance was

attempted.

23

24 --------------------END FOOTNOTE--------------------

25

Defendant maintains, however, that it was “inherently unfair” to admit evidence of

26 financial gain related to the murder of Glenna after the not true finding on the financial-

gain special-circumstance allegation in the trial for Glenna's murder. He continues:

27 “Although, technically appellant was not being tried a second time for Glenna's murder,

the introduction of the Glenna financial gain evidence had that effect. The prosecution's

28 sole purpose for introducing financial gain evidence from appellant's Monterey County

trial [involving Glenna's murder] into appellant's Kern County case was to support the

30

1 prosecution's theory that Joyce was murdered, rather than died of natural causes, and that

the financial gain special circumstance charged in Count II, Martha's homicide, was true.”

2

Defendant's own argument rebuts the claim that the introduction of evidence of financial

3 gain constituted a retrial of the charge involving the murder of Glenna. The evidence was

admitted to establish facts regarding the murders of Joyce and Martha, not to relitigate

4 defendant's responsibility for murdering Glenna for the purpose of financial gain.

Defendant claims that when, in the present case, the jury learned that defendant had

5 received a sentence of life without possibility of parole for Glenna's murder, they decided

to punish him more severely. This claim is speculative and is unrelated to defendant's

6 claim that the evidence at the trial for Glenna's murder should have been excluded at the

guilt phase. We observe additionally that this argument was not raised below as a basis

7 for excluding the evidence at the guilt phase, and is waived on appeal. (See People v.

Ashmus, supra, 54 Cal.3d at p. 973, fn. 10.)

8

Defendant objects to the manner in which the prosecutor employed evidence of

9 defendant's financial motivation to kill Glenna. Defendant refers to the prosecutor's use of

this evidence to support the claim that defendant also murdered Joyce and Martha in part

10 for financial reasons. Defendant contends that the evidence was irrelevant to the charge

that defendant murdered Joyce, because no financial gain special circumstance was

11 alleged as to her. This claim is not persuasive, because evidence of defendant's motive for

killing Joyce was relevant to the charge that defendant had murdered her, even without a

12 financial gain special circumstance. He makes the additional claim that the evidence

regarding defendant's receipt of life insurance proceeds on Glenna's death “lent undue

13 weight” to the “weak” evidence that defendant killed Martha for financial gain.

Defendant's claim goes to the weight, and not to the admissibility, of the evidence. As

14 long as the evidence properly was admitted, as we have determined it was, the weight to

be accorded the evidence was for the jury to decide.

15

Defendant also notes that the jury was not instructed at the guilt phase of the present case

16 that the financial-gain special-circumstance allegation in the trial for Glenna's murder had

been found not true. Defendant did not request such an instruction and, indeed, made every

17 effort not to disclose to the jury that he had been tried for Glenna's murder. An instruction

that the special circumstance allegation that he had murdered Glenna for financial gain

18 had been found not true could give rise to an inference that, despite the not true finding

on the special circumstance allegation, he previously had been tried and convicted of the

19 murder of Glenna. Because of the potential for prejudice arising from the instruction

which defendant now claims should have been given, no sua sponte duty to give such an

20 instruction should be imposed. (See § 190.1, subd. (b) [providing for trial of a prior murder

conviction special-circumstance allegation only after a guilty verdict has been reached on

21 the charged crimes].)

22 Defendant claims that as part of the guaranty against cruel and unusual punishment

provided by the Eighth Amendment of the United States Constitution, any evidence is

23 unreliable that relates to a crime as to which the defendant has been acquitted. He cites in

support Beck v. Alabama (1980) 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392]. That

24 opinion does not support his claim. In Beck, the high court disapproved a state rule limited

to capital cases, that prohibited the fact finder from considering a lesser included offense

25 within the capital charge, thereby forcing an all-or-nothing choice between the death

penalty and acquittal. (Id. at p. 637 [100 S.Ct. at pp. 2389-2390]; see also People v.

26 Waidla, supra, 22 Cal.4th at p. 736, fn. 15; People v. Breverman (1998) 19 Cal.4th 142,

166-167 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) Although the high court in that case

27 observed that it has “invalidated procedural rules that tended to diminish the reliability of

the sentencing determination” and of the guilt determination (Beck v. Alabama, supra, 447

28 U.S. at p. 638 [100 S.Ct. at p. 2390]), defendant has not produced any authority suggesting

that otherwise admissible evidence relating to an allegation found not true necessarily

31

1 must be excluded as unreliable at the guilt phase of a capital trial for a different crime.

(See People v. Jenkins, supra, 22 Cal.4th at p. 1044 [discussing the scope of the reliability

2 requirement under the Eighth Amendment of the United States Constitution].)

3

4 Catlin, 26 Cal. 4th at 123-28.

5 The state supreme court reasonably rejected the allegation and the claim otherwise lacks merit

6 upon de novo review. For the reasons stated by that court and those discussed below, Petitioner was not

7 twice placed in jeopardy as he alleges.

8 Petitioner argues that the uncharged crimes evidence was unreliable and biased the jury toward

9 death (Doc. No. 25 at 82, citing Beck v. Alabama, 447 U.S. 625, 637-38 at n.13 (1980)); and that

10 presentation of this evidence in the Kern County proceeding was barred by collateral estoppel as

11 incorporated into the double jeopardy clause. (Doc. No. 25 at 80.) He argues the prosecution used this

12 evidence to circumstantially support its case that Joyce was murdered for money (rather than died of

13 natural causes) (see e.g., RT 5296-97); the financial gain special circumstance charged in Martha’s

14 homicide was true (See Doc. No. 25 at 84 citing RT 37-38, 49, 50, 55-56, 5196-99, 5290-97; CT 1882);

15 and to argue in aggravation at the sentencing phase that Petitioner killed for money (Doc. No. 25 at 84-

16 85 citing RT 5488).

17 Petitioner argues the Kern County court denied him due process and placed him in double

18 jeopardy by relitigating a special circumstance allegation as to Martha (i.e., murder for financial gain)

19 after the Monterey County court had acquitted Petitioner of the allegation. (Doc. No. 25 at 81, citing

20 Bullington v. Missouri, 451 U.S. 430, 444-45 (1981) (special circumstance allegations shall be

21 determined by the trier of fact on the evidence presented).

22 The record reflects the Monterey County trial court granted a defense in limine motion for

23 acquittal on the financial gain special circumstance under Penal Code section 1118.1 and that issue did

24 not reach the jury and was not subject of jury’s findings embodied in the final Monterey County

25 judgment. (See RT 3511-14; 1SHCP Ex. 102 at 840-44.)

26 Here, Petitioner has not pointed to clearly established Supreme Court law precedent that

27 admission of uncharged crimes evidence violates double jeopardy or equal protection rights. Nor has he

28 demonstrated that he was twice put in jeopardy for the same offense. (CT 1777-79.) Petitioner

32

1 acknowledges he was not retried in Kern County for Glenna’s murder, but argues the introduction of the

2 financial gain evidence was so unfair that it had the effect of a retrial. (Doc. No. 25 at 82.)

3 The state supreme court reasonably could find Petitioner merely surmises the Kern County jury

4 likely used the Monterey County evidence to effectively modify the conviction and LWOP sentence he

5 received in Monterey County and punish him more severely through the Kern County conviction and

6 sentence. (Id.) It remains that Petitioner was not retried in Kern County for Glenna’s killing. The state

7 supreme court reasonably could find the other uncharged crimes evidence was properly admitted in the

8 Kern County proceeding, for the reasons stated by that court. Catlin, 26 Cal. 4th 124 citing Dowling v.

9 United States, 493 U.S. 342, 348 (1990) (evidence relating to an acquittal is not excluded for all purposes

10 under collateral estoppel doctrine).

11 Petitioner’s related argument the Monterey other crimes evidence of acquittal on the financial

12 gain special circumstance went to an ultimate issue in the Kern County proceeding and should have been

13 precluded under collateral estoppel document, reasonably is unpersuasive, for the reasons stated. The

14 murder of Glenna was not a charged offense in Kern County. Petitioner cannot rely upon Ashe in this

15 regard. In Ashe, collateral estoppel applied where defendant was acquitted in the first trial and to have

16 convicted him in the second trial would have required the second jury reach a directly contrary

17 conclusion. See Dowling, 493 U.S. at 348, citing Ashe, 397 U.S. at 445. Petitioner reasonably has not

18 demonstrated that was the case here, for the reasons stated. (See e.g. Doc. No. 25 at 84 n.52.) Petitioner

19 has not demonstrated the Ninth Circuit’s holding in Santamaria v. Horsely is authority otherwise or

20 dictates a difference result. 133 F.3d 1242 (9th Cir. 1998). To the extant Santamaria is authority that an

21 acquittal is an acknowledgment the government failed to prove the essential elements of the offense

22 beyond a reasonable doubt, 133 F.3d at 1246, it is of no assistance to Petitioner, for the reasons stated.

23 Petitioner’s further suggestion the Monterey County finding of insufficient evidence to support

24 the financial gain special circumstance precludes the prosecution’s introduction of such evidence in the

25 Kern County proceeding to argue the same theory of relevance (see Doc. No. 95 100-101), is unsupported

26 by clearly established Supreme Court authority.

27 At bottom, whether Petitioner killed Glenna for financial gain was not an ultimate issue in the

28 Kern County proceeding. See Dowling, 493 U.S. at 348. Petitioner does not properly invoke and satisfy

33

1 either double jeopardy or collateral estoppel doctrine. Whether he killed Glenna for financial gain was

2 not an ultimate issue in the Kern County proceeding. The allegation thus fails even if recast as a due

3 process violation. See Sattazahn v. Pennsylvania, 537 U.S. 101, 116 (2003) (due process claim fails

4 where merely a double-jeopardy claim in different clothing).

5 ii. Jury Instruction on Uncharged Crime Evidence

6 Petitioner alleges the trial court improperly instructed the jury with a modified version of

7 CALJIC 2.50 that allowed the uncharged crime evidence to be considered in determining cause of

8 death for Joyce and Martha, denying him a fair trial, an impartial jury, and a reliable conviction and

9 sentence. He argues the erroneous instruction lessened the prosecution burden of proof. (Doc. No. 95

10 at 105.)

11 The state supreme court rejected the allegation on direct appeal, stating that:

12

Defendant contends the court erred in instructing the jury that it could consider other-

13 crimes evidence in determining the cause of death in the charged crimes, particularly

with respect to the murder of Joyce.

14

The trial court instructed the jury, regarding their evaluation of other-crimes evidence,

15 according to a modified version of CALJIC No. 2.50. Over defense objection, the trial

court granted the prosecutor's request that the instruction be modified to state that other-

16 crimes evidence may be considered not only for the purpose of establishing the identity

of the person responsible for the charged offenses, but also for the purpose of

17 determining the cause of death of the victims in the charged offenses.16

18

19 --------------------FOOTNOTE--------------------

20 n.16 The court instructed the jury: “Evidence has been introduced for the purpose of

showing that the Defendant committed ... crimes other than [those] for which he is on

21 trial. Such evidence, if believed, was not received and may not be considered by you to

prove that Defendant is a person of bad character or that he has a disposition to commit

22 crimes. [¶] Such evidence was received and may be considered by you only for the

limited purpose of determining if it tends to show the cause of death of the victims in the

23 crimes, if any[,] of which the Defendant is accused, the identity of the person who

committed the crimes, if any[,] of which the Defendant is accused[.] For the limited

24 purpose of which you may consider such evidence you must weigh it in the same

manner as you do all other evidence in the case. [¶] You are not permitted to consider

25 such evidence for any other purpose.”

26

--------------------END FOOTNOTE--------------------

27

Defendant contends that he was “convicted of a capital offense on evidence which

28 would not satisfy the reasonable doubt standard.” In support, he claims that uncharged

34

1 crimes evidence that he killed Glenna improperly was admitted in the present case. We

already have determined that the evidence properly was admitted.

2

Defendant also contends that the court violated his right to a fair trial and to a reliable

3 penalty determination by giving the modified version of CALJIC No. 2.50, because the

modified instruction “lessened the prosecution's burden of proof on the crucial issue of

4 cause of death.” If defendant means that the prosecutor's burden of proof was lightened

because the instruction entitled the jury to consider improperly admitted evidence of

5 cause of death, it suffices to note that we already have rejected the contention that this

evidence was admitted improperly.

6

Defendant's principal contention seems to be that other-crimes evidence may be

7 admitted only for the purpose of proving intent, identity, motive, knowledge, and

conspiracy. Cause of death, he claims, is not an appropriate object of proof for other-

8 crimes evidence. Rather, he asserts, cause of death may be proved only by expert

opinion testimony.

9

Evidence Code section 1101, subdivision (b), permits the admission of other-crimes

10 evidence against a defendant “when relevant to prove some fact (such as motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

11 accident ...) other than his or her disposition to commit such an act.” Section 1101

prohibits the admission of other-crimes evidence for the purpose of showing the

12 defendant's bad character or criminal propensity. It recognizes, however, that there are

facts other than criminal propensity to which other-crimes evidence may be relevant.

13 (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) The categories listed in section 1101,

subdivision (b), are examples of facts that legitimately may be proved by other-crimes

14 evidence, but, contrary to defendant's contention, the list is not exclusive. (People v. Key

(1984) 153 Cal.App.3d 888, 894 [203 Cal.Rptr. 144]; see also People v. Thompson

15 (1980) 27 Cal.3d 303, 315, fn. 14 [165 Cal.Rptr. 289, 611 P.2d 883]; 1 Witkin, Cal.

Evidence, supra, Circumstantial Evidence, § 75, p. 411.) As we have explained, the

16 admissibility of other-crimes evidence depends upon the materiality of the fact sought to

be proved or disproved, the tendency of the uncharged crime to prove or disprove the

17 material fact, and the existence of any policy requiring exclusion of the evidence.

(People v. Thompson, supra, 27 Cal.3d 303, 315.) In order to be material, the fact in

18 dispute “may be either an ultimate fact in the proceeding or an intermediate fact 'from

which such ultimate fact[] may be ... inferred.' ” (Ibid., fn. omitted.)

19

Defendant's not guilty plea put in issue all the elements of the charged offenses. (People

20 v. Balcom (1994) 7 Cal.4th 414, 422 [27 Cal.Rptr.2d 666, 867 P.2d 777].) Evidence

tending to demonstrate the cause of death was relevant to demonstrate that a murder-and

21 not a natural death-had occurred. (See People v. Mendoza (2000) 24 Cal.4th 130, 171

[99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Scheid (1997) 16 Cal.4th 1, 15 [65

22 Cal.Rptr.2d 348, 939 P.2d 748].) Evidence that defendant previously had murdered his

wife Glenna by poisoning her with paraquat was relevant to the issue of the cause of

23 death in the charged crimes, because it tended to corroborate the other evidence

establishing that Joyce and Martha died of paraquat poisoning. (See People v. Diaz,

24 supra, 3 Cal.4th at pp. 561-562; People v. Ruiz, supra, 44 Cal.3d at pp. 605-606; People

v. Montalvo (1971) 4 Cal.3d 328, 332 [93 Cal.Rptr. 581, 482 P.2d 205, 49 A.L.R.3d

25 518] [evidence that defendant previously injected a young girl with heroin, causing

certain reactions, was relevant to prove that in the charged crime, a substance that

26 caused the same reactions when injected also was heroin].)

27 We are not persuaded by defendant's contention that the cause of death may be

established only through expert opinion testimony and not through other-crimes

28 evidence. Cases he cites in support declare only that expert opinion testimony on the

question of cause of death also is admissible. (See People v. Mayfield, supra, 14 Cal.4th

35

1 at p. 766; People v. Cole (1956) 47 Cal.2d 99, 103-104 [301 P.2d 854, 56 A.L.R.2d

1435].) Other evidence relevant to cause of death also is admissible. (See, e.g., People v.

2 Mendoza, supra, 24 Cal.4th at p. 171; People v. Scheid, supra, 16 Cal.4th at p. 15;

People v. Diaz, supra, 3 Cal.4th at pp. 561-562.)

3

Defendant complains that the instruction informed the jurors that in the event they found

4 that Glenna died of paraquat poison, they could find from that fact alone that both Joyce

and Martha died of paraquat poison. We do not believe, however, that the instruction

5 conveyed that impression. It directed the jury to consider “if” the other-crimes evidence

“tends” to demonstrate cause of death and identity, and directed the jury to weigh the

6 evidence in the same manner as it would weigh all other evidence in the case.

7 Defendant claims that the giving of the instruction violated his state and federal

constitutional rights to due process of law and to a fair trial. He contends that by

8 permitting the jury to convict him on the basis of evidence of his criminal propensity,

the instruction relieved the prosecution of its full burden of proof on the issue of the

9 cause of the victims' deaths. We have concluded already, however, that the instruction

did not permit the jury to rely on evidence of defendant's criminal propensity, and that it

10 did not direct that the jury could determine the cause of Joyce's and Martha's deaths

solely from evidence establishing that the cause of Glenna's death was paraquat

11 poisoning.

12 Defendant also complains that the modified instruction failed to explain exactly what

type of other-crimes evidence could be considered. In support, he cites People v. Rollo

13 (1977) 20 Cal.3d 109 [141 Cal.Rptr. 177, 569 P.2d 771]. In that case this court stated

that when evidence of a prior conviction has been admitted for impeachment purposes

14 and other-crimes evidence also has been admitted pursuant to Evidence Code section

1101, subdivision (b), the trial court should instruct the jury as to which evidence is

15 referred to in the CALJIC No. 2.50 instruction, in order to avoid confusion. (Rollo,

supra, 20 Cal.3d at p. 123, fn. 6.) In the present case, in addition to the other-crimes

16 evidence, evidence that defendant had suffered a prior forgery conviction was admitted

for impeachment purposes. Even if we consider this claim as invoking the federal

17 Constitution, with its exacting standard of prejudice, we conclude that any error in

failing to modify CALJIC No. 2.50 was harmless beyond a reasonable doubt. The jury

18 was instructed that the evidence of a prior conviction could be considered only for the

purpose of impeachment. We believe there is no reasonable possibility that the jury

19 considered the prior forgery conviction in making its determinations, in accordance with

CALJIC No. 2.50, on the issues of cause of death and the identity of the perpetrator.

20 (See Chapman v. California, supra, 386 U.S. 18, 24 [87 S.Ct. 824, 828].)

21

22 Catlin, 26 Cal. 4th at 144-47.

23 Petitioner has not shown the state supreme court acted reasonably and the claim otherwise lacks

24 merit on de novo review. In evaluating a claim of instructional error, a single instruction is not viewed

25 in isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he proper

26 inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged

27 instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494

28 U.S. at 380. Additionally, a reviewing court does not engage in a technical parsing of the instruction’s

36

1 language, but instead approaches the instructions in the same way that the jury would -- with a

2 “commonsense understanding of the instructions in the light of all that has taken place at the trial.”

3 Johnson, 509 U.S. at 368. Lastly, federal courts presume that juries follow instructions, including

4 cautionary instructions. Weeks, 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at

5 1115.

6 Petitioner argues the trial court erred in giving the following modified CALJIC 2.50 instruction

7 given to the jury in the Kern County proceeding over defense objection (RT 5160):

8

Such evidence was received and may be considered by you only for the limited purpose

9 of determining if it tends to show: The cause of death of the victims in the crimes, if any,

of which the defendant is accused; The identify [sic] of the person who committed the

10 crimes, if any, of which the defendant is accused.

11

12 CT 1947.

13 Petitioner suggests this instruction, given in the abstract and without reference to the evidence

14 to which it related, improperly lessen the prosecution burden of the charges. (Doc. No. 25 at 95 citing

15 Francis v. Franklin, 471 U.S. 307, 314 (1985) (jury instructions violate due process if they relieve the

16 of the burden of persuasion on an element of an offense). This is so, he reasons, because CALJIC 2.50

17 allows consideration of “other crimes” evidence only where it tends to show intent, identity, motive,

18 knowledge and conspiracy (see Doc No. 25 at 96), not cause of death as the prosecution used it here

19 (see RT 5309; CT 1947). He argues that cause of death is established by medical expert testimony.

20 (Doc. No. 25 at 96.) He suggests the “other crimes” evidence and modified instruction were prejudicial

21 because they allowed the jury to find that Joyce and Martha died from paraquat poisoning based on the

22 “other crimes” evidence from the Monterey County proceeding and without regard to the relevant

23 expert medical testimony on this issue in the Kern County proceeding. (Doc. No. 25 at 96.)

24 Yet the state supreme court reasonably could find the uncharged crimes evidence from the

25 Monterey proceeding was probative of the crimes charged in the Kern County proceeding and properly

26 admitted therein, as stated by that court. Particularly, evidence suggesting Petitioner killed Glenna by

27 poisoning her with paraquat tended to corroborate other evidence that he killed Joyce and Martha by a

28 plan of poisoning them with paraquat. See Catlin, at 146; (see also RT 3765-71, 4037.)

37

1 Here again, Petitioner has not pointed to clearly established Supreme Court precedent as a basis

2 for relief. See Blystone, 494 U.S. at 305 (it is sufficient that “jury be allowed to consider and give

3 effect to all relevant mitigating evidence”).

4 Nor has Petitioner demonstrated to a level exceeding surmise that on the factual record this

5 instruction and evidence lessened the prosecution’s burden of proving the charged offenses beyond a

6 reasonable doubt. Even if the modified instruction was improper as a matter of state law, that alone is

7 not a basis for federal habeas relief. Dunckhurst, 859 F.2d at 114.

8 In sum, the state supreme court reasonably could find the challenged instruction, considered in a

9 common-sense fashion in the context of all the instructions given and presumably followed by the

10 jurors did not deny Petitioner his federal rights. Weeks, 528 U.S. at 243.

11 iii. Harmless Error

12 Even if the trial court erred as alleged, the California Supreme Court reasonably could find such

13 error had no substantial and injurious effect on the outcome. Brecht, 507 U.S. at 620. The other crimes

14 evidence was properly admitted, for the reasons stated. Petitioner has not demonstrated on the

15 evidentiary record any reasonable likelihood the jury applied the trial court’s total instructional charge

16 so as to preclude consideration of constitutionally relevant evidence.

17 A common-sense application of the instructions given to the facts and circumstances of this case

18 suggests the possibility of prejudice from the omitted instructions is only remote.

19 Moreover, federal courts may not interfere with a state evidentiary ruling unless the evidence was

20 so prejudicial that its admission violated fundamental due process and the right to a fair trial. Jeffries v.

21 Blodgett, 5 F.3d 1180, 1192) (9th Cir. 1993). Here, the noted evidence against Petitioner was substantial.

22 (See e.g., claims 30, 31.)

23 c. Conclusions

The state supreme court reasonably could find trial court did not err by admitting evidence of the

24

prior Monterey County proceeding on the death of Glenna as evidence of an uncharged crime, committed

25

for “financial gain,” and instructing the jury thereon.

26

Moreover, that court reasonably could find Petitioner failed to show structural or more than

27

harmless error as a result of the alleged constitutional deprivations.

28

38

1 Accordingly, it does not appear that the California Supreme Court’s rejection of claims 1, 2, and

2 4 was contrary to, or an unreasonable application of, clearly established federal law, as determined by

3 the Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the

4 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

5 Aspects of the claims considered de novo fail for the reasons stated.

6 Claims 1, 2, and 4 shall be denied.

7 3. Claim 3

8 Petitioner alleges the trial court erred by admitting testimony by successor prosecution expert

9 Dr. Ford on issues alleged time of ingestion of paraquat, onset of symptoms and progression of illness

10 in the deaths of Glenna and Martha that differed from testimony in the Monterey County proceeding by

11 predecessor prosecution expert Dr. Buteau on the same issues, denying due process, a fair trial,

12 confrontation of evidence, effective assistance of counsel, and a reliable conviction and sentence under

12

13 the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 25 at 87.)

14 a. State Court Direct and Collateral Review

The claim was raised on direct appeal as prosecutorial misconduct and a denial of due process,

15

equal protection, and a fair trial under the Fifth and Fourteenth Amendments and found inappropriate for

16

resolution on appeal. Catlin, 26 Cal. 4th at 143-44.

17

The claim was raised in the first state habeas petition on Sixth and Fourteenth Amendment

18

grounds and denied on the merits. (Order No. S090636.)

19

The same claim was raised in the second state habeas petition on Fifth, Sixth, Eighth, and

20

Fourteenth Amendment grounds and denied on procedural grounds including to the extent aspects of the

21

claim other than ineffective assistance of counsel and the constitutionality of the death penalty were

22

raised and rejected on direct appeal (In re Waltreus) and raised and reached in the prior state habeas

23

petition (In re Miller). (Order No. S173793).

24

b. Analysis

25

Petitioner faults the trial court for admitting prosecution proffered expert opinion on events of

26

27

28

12

Claimed prosecutorial misconduct and ineffective assistance of counsel are analyzed separately, below.

39

1 ingestion, onset of symptoms and progression of illness in the Monterey County proceeding and Kern

2 County preliminary hearing (relating to the charged murder of Glenna and the uncharged homicides of

3 Joyce and Martha) that differed from and allegedly were inconsistent with expert opinion on the same

4 events it offered in the Kern County trial proceeding (relating to the charged murders of Joyce and Martha

5 and the special circumstances prior murder of Glenna).

6 The state supreme court found aspects of the claim inappropriate for resolution on direct appeal,

7 stating that:

8

Defendant contends that the testimony of Dr. Buteau, a prosecution expert witness at the

9 Monterey County trial for the death of Glenna, was substantially different from the

testimony of Dr. Ford, a prosecution expert witness who testified at the trial in the

10 present case. He complains that at the first trial and at the preliminary hearing in the

present case, Dr. Buteau suggested that Glenna and Martha would have exhibited

11 symptoms of paraquat poisoning within 12 to 24 hours of ingestion of paraquat.15 Under

facts developed by defendant in the present case, it would have been unlikely or less

12 likely that defendant could have administered the poison if the 12 to 24-hour timeframe

were accurate. At trial in the present case, Dr. Ford, another expert, testified that

13 Martha's symptoms were consistent with an earlier administration of the poison, and

Glenna's with a later administration of the poison-in each instance times at which

14 defendant had the opportunity to administer the poison. Defendant claims that the

prosecutor committed misconduct in violation of defendant's right to a fair trial by

15 prosecuting the present case under a different theory and with different evidence than

was presented at the earlier trial for the murder of Glenna.

16

17 --------------------FOOTNOTE--------------------

18 n.15 As noted above, the trial record in the Monterey County case is not part of the

record on appeal in the present case.

19

20 --------------------END FOOTNOTE--------------------

21

To the extent defendant's claim is based upon inconsistencies between the testimony of

22 Dr. Ford in the present case and that of Dr. Buteau at a different trial, those

inconsistencies could be explored on cross-examination and through the presentation of

23 defense evidence. In fact, Dr. Ford was cross-examined regarding these inconsistencies,

and defendant called Dr. Buteau as a defense witness. With respect to the possibility that

24 separate trials relating to the same crime improperly may have been tried under

inconsistent theories, we examined a similar claim in People v. Sakarias (2000) 22

25 Cal.4th 596 [94 Cal.Rptr.2d 17, 995 P.2d 152]. (29) In that case, we determined that a

contention that inconsistent theories of prosecution give rise to a claim that the

26 prosecution wrongfully has employed different theories at two separate trials best is

examined in connection with a petition for writ of habeas corpus, where the record of the

27 prior trial may be examined and the reasons for the discrepancies may be analyzed and

explained. (Id. at pp. 635-636.) For the same reason, we determine that the issue is not

28 appropriate for resolution on direct appeal in the present case.

40

1 Catlin, 26 Cal. 4th at 143-44.

2 As discussed below, the state supreme court reasonably denied the claim on the merits to the

3 extent raised in the first state habeas petition and the claim otherwise lacks merit upon de novo review,

4 as discussed below.

5 i. Allegedly Inconsistent Prosecution Theories

6 Petitioner argues prosecution expert Dr. Ford opined at the Kern County proceeding paraquat

7 ingestion timelines that varied from such timelines offered by predecessor prosecution expert Dr. Buteau

8 in the Monterey proceeding and Kern County preliminary hearing. He suggests this change in theory

9 was meant to avoid Petitioner’s alibi defenses.

10 (1) Differing Testimony of Drs. Buteau and Ford

11 Petitioner observes that as to Glenna, in the Monterey County proceeding and Kern County

12 preliminary hearing prosecution expert, Chevron toxicologist Dr. Buteau, testified that given the

13 concentration of paraquat in her tissue Glenna’s symptoms of nausea and vomiting would have begun 12

14 to 24 hours after ingestion of paraquat. (Doc. No. 25 at 87 citing 1SHCP Ex. 102 at 307-08, 1273; see

15 also RT 3943-44.)

16 Petitioner argues Dr. Buteau’s opinion tended to support his alibi defense. He points to testimony

17 from Glenna’s mother that Glenna showed some symptoms beginning more than 48 hours after she had

18 seen Petitioner (RT 3077-80) – suggesting Petitioner could not have administered the paraquat within the

19 timeframe provided by Dr. Buteau.

20 Petitioner goes on to argue that in the Kern County trial, the prosecution used a different expert,

21 Chevron toxicologist Dr. Ford, who opined that the symptoms observed by Glenna’s mother were

22 unrelated to subsequent paraquat induced symptoms he believes Glenna suffered within 12 to 24 hours

23 of Petitioner having contact with her upon return from Las Vegas (RT 3928-30). Dr. Ford opined Glenna

24 ingested paraquat on the day she became acutely ill. (Id.; see also RT 3971-73, 3981.) Dr. Ford’s

25 testimony tended not to support Petitioner’s alibi defense.

26 Petitioner observes that as to Martha, in the Monterey County proceeding and Kern County

27 preliminary hearing Dr. Buteau testified that given the concentration of paraquat found in her tissue,

28 Martha ingested paraquat on December 5th or 6th, 1984, with symptoms beginning December 6th and

41

1 death following on December 8th. (1SHCP Ex. 102 at 298-313; CT 769-74.) Dr. Buteau suggested a

2 presenting complication could be cardiac arrest. (1SHCP Ex. 102 at 298.)

3 Petitioner points to evidence in both his proceedings that he had no access to Martha during the

4 period following December 2, 1984 and up to her death on December 8, 1984 (1SHCP Ex. 102 at 941-

5 943, 947, 954-964, 986-87; RT 4415, 4428-4429, 4471-4473, 4589-4593, 4601-4608, 4709-12) –

6 suggesting Petitioner could not have administered the paraquat within the timeframe provided by Dr.

7 Buteau.

8 Petitioner goes on to argue that in the Kern County proceeding, Dr. Ford opined that Martha

9 probably ingested paraquat 6 or 7 days prior to her death, within the period Petitioner had access to

10 Martha. (RT 3921, 3957-61, 3984-85.)

11 Petitioner also argues that prosecution witness Mark Skinner, an employee of Petitioner, changed

12 his testimony in order to place Petitioner in Martha’s home within the paraquat ingestion timeline stated

13 by Dr. Ford. (Cf. RT 3557-66 with RT 4251-72.)

14 ii. The Expert Testimony was Properly Admitted

15 Petitioner has not demonstrated the noted expert testimony was improperly admitted. The jury

16 presumably considered and weighed the expert opinion consistent with their instructions. Petitioner has

17 not shown this process was materially unfair. Especially so, given the issue of ingestion timeline was

18 not an ultimate issue in the charged offenses. Cf., Thompson v. Calderon, 120 F.3d 1045, 1056-57 (9th

19 Cir. 1997) (reversed and remanded in Calderon v. Thompson, 523 U.S. 538 (1998)) (state presented

20 inconsistent theories as to the identity and motive of the killer in separate trials against two defendants

21 charged with the same murder).

22 Petitioner argues that he was denied the right to confront the above noted “diametrically differing”

23 and “inherently unfair” expert opinion. (Doc. No. 95 at 103.) Evidence, he argues was altered in the

24 Kern County proceeding by the prosecution knowingly taking different positions with respect to the same

25 events, denying him a due process right to a fair trial. (Doc. No. 25 at 92.) He suggests the prosecution

26 is judicially estopped from taking such inconsistent positions (see Doc. No. 25 at 93 citing Russell v.

27 Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (judicial estoppel bars “making a factual assertion in a legal

28 proceeding which directly contradicts an earlier assertion made in the same proceeding or a prior one”)

42

1 and should not have been allowed to introduce evidence of Glenna’s murder not presented in the

2 Monterey trial. He suggests the evidence admitted in the Kern County proceedings was akin to false

3 testimony. (Doc. No. 95 at 93, 103.)

4 However, Petitioner fails to demonstrate that he was denied fair confrontation of properly

5 admitted expert opinion in the Kern County trial. The record shows that counsel in the Kern County

6 proceeding used Dr. Buteau’s prior testimony in cross-examining prosecution witnesses including Dr.

7 Ford. The defense also called Dr. Buteau to testify in that proceeding, asking no questions about Glenna’s

8 death, and eliciting testimony from Dr. Buteau that Martha ingested paraquat anywhere from a couple

9 days to a week prior to her death (RT 4532-37) following his review of additional information including

10 Dr. Ford’s testimony. (RT 4546-49.) Dr. Buteau’s modified testimony was not necessarily inconsistent

11 with Dr. Ford’s noted testimony because the suggested ingestion timelines somewhat overlapped.

12 Additionally, the opinions of other experts in Petitioner’s Monterey and Kern County

13 proceedings appear to be somewhat equivocal, qualified and inconclusive as to time Glenna and Martha

14 might have ingested paraquat. For example, defense expert, Dr. Russell, testified in the Kern County

15 proceeding that she was unable to say when Glenna ingested paraquat, but that she believed Glenna’s

16 symptoms while in Las Vegas were the result of paraquat. (RT 4389-90.) Dr. Russell further opined

17 that Martha ingested paraquat approximately forty-eight hours before her death, conceding this timeline

18 was variable depending upon other factors. (See RT 4388-4402.)

19 Dr. Stephens testified in the Kern County proceeding that he was uncertain when Glenna

20 ingested the paraquat. (RT 3796.) Dr. Stephens did not opine on when Martha ingested paraquat, but

21 he found it unlikely she ingested a large amount within 2 days of her death. (RT 3792-94, 3827.) Dr.

22 Kilburn stated Martha’s symptoms were consistent with having ingested paraquat 3 to 6 days before her

23 death. (RT 4049.)

24 Petitioner’s re-argued collateral estoppel theory, that he was convicted in the Kern County

25 proceeding of murdering Martha and Joyce even though the Monterey county trial judge (i) ruled no

26 rational trier of fact could be persuaded beyond a reasonable doubt that he poisoned Martha (thereby

27 excluding evidence of Martha’s death from the Monterey penalty phase) (see Doc. No. 25 at 90 citing

28 1SHCP Ex. 102 at 112, 183-94, 1161), and (ii) found that Petitioner’s culpability for Joyce’s murder

43

1 could not be proved by even a preponderance of evidence (thereby totally excluded evidence of that crime

2 from Petitioner’s Monterey County trial) (id. at 91 citing 1SHCP Ex. 102 at 181. RT 25-27). This re-

3 argument fails for reasons stated in the discussion of claims 1, 2 and 4, above.

4 Similarly, Petitioner argument that in effect, he was unconstitutionally forced to stand trial on the

5 charged and uncharged counts in both Monterey and Kern counties, denying him due process and equal

6 protection, is unpersuasive, for the reasons stated. (See Doc. No. 25 at 90.) Prosecutors in both

7 proceedings theorized that Petitioner poisoned Glenna and Martha with paraquat and that timelines for

8 paraquat ingestion were somewhat variable. Petitioner has not demonstrated prosecution use of false

9 expert testimony (Napue v. Illinois, 360 U.S. 264, 269 (1959) (prosecutor's knowing presentation of false

10 testimony violates due process), or fundamental unfairness arising from admission of this evidence

11 (Turner v. Louisiana, 379 U.S. 466, 472 (1965) (verdict must be based upon the evidence developed at

12 trial), for the reasons stated.

13 c. Conclusions

14 The state supreme court reasonably could find trial court did not err by admitting the noted expert

15 testimony.

16 Moreover, that court reasonably could find Petitioner failed to show structural or more than

17 harmless error as a result of the alleged constitutional deprivations.

18 Accordingly, it does not appear that the California Supreme Court’s rejection of claim 3 was

19 contrary to, or an unreasonable application of, clearly established federal law, as determined by the

20 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the facts

21 in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

22 The balance of the allegations fails on de novo review, for the reasons stated.

23 Claim 3 allegations of trial court error shall be denied.

24 4. Claim 5

Petitioner alleges the Kern County trial court erred by admitting evidence of deaths of Joyce

25

and Martha that was found legally insufficient as “other crimes” evidence in the Monterey County

26

proceeding, denying him a fair trial and placing him in double jeopardy in the Kern County

27

proceedings, violating his rights under the Fifth and Fourteenth Amendments. (Doc. No. 25 at 98.)

28

44

1 a. State Court Direct and Collateral Review

2 Petitioner’s claim that the admission of evidence from the Monterey County proceeding in the

3 form of preliminary hearing testimony regarding the killing of Martha and Joyce denied him a fair trial

4 and placed him in double jeopardy was considered on direct appeal and partially denied on procedural

5 grounds as to Martha and entirely denied on the merits as to the double jeopardy allegation. Catlin, 26

6 Cal. 4th at 128-30.

7 The claim was raised in the second state habeas petition and as to other than ineffective assistance

8 of counsel and the constitutionality of the death penalty, it was denied on procedural grounds as raised

9 and rejected on appeal (In re Waltreus). (Order No. S173793.)

10 b. Analysis

11 Petitioner alleges the prosecution in the Kern County trial court was collaterally estopped from

12 relitigating issues and testimony of the deaths of Joyce and Martha that were decided found insufficient

13 as other crimes evidence in the Monterey County proceeding. (Doc. No. 25 at 98-99 citing 1SHCP Ex.

14 102 at 112, 181-94, 1161.)

15 Specifically, he argues the Monterey County court considered uncharged crime evidence and

16 necessarily found Petitioner was not culpable for the deaths of Joyce and Martha and that the Kern

17 County court should have been bound by these findings. (See Doc. No. 95 at 106.) He invokes Ashe in

18 arguing that relitigation of the issue in Kern County violated his federal rights. (See 397 U.S. at 445.)

19 However, the allegation lacks merit upon deferential and de novo review, as follows.

20 i. Collateral Estoppel Regarding Monterey County Rulings on Other Crimes Evidence

21 Petitioner argues the Monterey County court finally determined that evidence relating to Joyce’s

22 murder was inadmissible, i.e. that:

23

[The evidence] falls short of the degree of proof that is required for admissibility. The

24 Court instructs us that we have to, when they’re [uncharged crimes] [ ] use extreme

caution in something like that. I thought Dr. Russell’s testimony was very convincing. I

25 do not [sic] feel that some of the other experts unconsciously are affected by the fact of

what transpired since 1976. Where you look at the evidence relating to the defendant’s

26 guilt relative to Joyce’s death, unaffected by the other deaths, I think it does not amount

to proof by a preponderance of the evidence. So, I’ll grant the motion for the defense to

27 not admit that [evidence of Joyce’s death] into the trial.

28

45

1 (Doc. No. 25 at 100 citing 1SHCP Ex. 102 at 181.)

2 Petitioner argues the Kern County court was bound by this finding at his later trial for the charged

3 crime of murdering Joyce because “the issues in the two trials vis-à-vis the Joyce Catlin homicide were

4 identical.” (Doc. No. 25 at 100.)

5 Petitioner also argues the Monterey County court finally determined that evidence presented

6 there was insufficient to show beyond a reasonable doubt that he committed the (therein uncharged)

7 murder of Martha (see Doc. No. 25 at 99 citing 1SHCP Ex. 102 at 112), precluding such aggravating

8 evidence at the penalty phase. Petitioner argues the Kern County court was bound by this finding at

9 Petitioner’s later trial for the charged crime of murdering Martha wherein “substantially the same

10 evidence” was used against Petitioner. (Doc. No. 25 at 99.)

11 Petitioner argues the prosecution improperly relitigated such matters in the Kern County

12 proceeding denying him due process and exposing him to double jeopardy. (Id. at 100.)

13 The state supreme court, in rejecting these allegations, stating that:

14

Defendant contends that, under the collateral estoppel doctrine of the state and federal

15 Constitutions, rulings by the trial court at his Monterey County trial for the murder of

Glenna should have barred the trial court in the present case from admitting evidence

16 concerning the murders of Martha and Joyce. As we shall explain, this contention clearly

lacks merit.

17

Defendant alleges that in the Monterey County trial, the court had before it the preliminary

18 hearing transcripts for the charged murders of Joyce and Martha, and the prosecution

sought to introduce evidence of both of those murders at the guilt phase of the Monterey

19 proceedings, pursuant to Evidence Code section 1101, subdivision (b). According to

defendant, the trial court excluded from the guilt phase of the Monterey County trial all

20 evidence suggesting that defendant had murdered Joyce, on the ground that the

prosecution had not established defendant's commission of that crime even by a

21 preponderance of the evidence. Defendant further alleges that although the trial court

permitted the prosecution to introduce evidence of Martha's murder at the guilt phase of

22 the Monterey County trial, the court subsequently refused to permit the prosecution to rely

upon that murder as a factor in aggravation at the penalty phase, on the ground that the

23 prosecution's evidence failed to establish beyond a reasonable doubt defendant's

culpability for murdering Martha.

24

As noted, defendant contends that these alleged rulings by the trial court in the Monterey

25 County proceeding operated, by virtue of the collateral estoppel doctrine, to preclude the

trial court in the present proceeding from admitting evidence concerning the murders of

26 Martha and Joyce. In essence, defendant claims that the charges should have been

dismissed, because without evidence of the murders of Martha and Joyce the prosecution

27 would be unable to carry its burden of proof.

28 Defendant did move at trial in the present case to dismiss count one, involving the murder

of Joyce, on collateral estoppel grounds. He did not move to dismiss count two, involving

46

1 the murder of Martha. His claim as to that count may not be raised for the first time on

appeal. (See People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d

2 354] [plea of once in jeopardy cannot be raised for the first time on appeal except in the

context of a claim of ineffective assistance of counsel]; People v. Marshall (1996) 13

3 Cal.4th 799, 824, fn. 1 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) To the extent any failure on

the part of counsel to raise a meritorious claim below could have constituted ineffective

4 assistance of counsel, we reach the merits of the claim as to each count. (See People v.

Marshall, supra, 13 Cal.4th at p. 824, fn.1.)

5

The record in the present case does not contain the hearing in the Monterey County trial

6 court with respect to the evidence of the murders of Martha and Joyce, so we cannot

comment on the basis for the Monterey trial court's determination. Even if we assume that

7 defendant's assertions regarding the Monterey trial court's ruling are correct, however, it

is clear that defendant's guilt or innocence of the crimes of murdering either Martha or

8 Joyce were not issues of ultimate fact to be determined in the Monterey County trial for

the murder of Glenna. Defendant was not acquitted of the murders of Joyce and Martha

9 in Monterey County. (See Gikas v. Zolin (1993) 6 Cal.4th 841 [25 Cal.Rptr.2d 500, 863

P.2d 745]; see also People v. Davis (1995) 10 Cal.4th 463, 514 [41 Cal.Rptr.2d 826, 896

10 P.2d 119].) Further, just as the trial court in the present case, involving defendant's

prosecution for the murders of Joyce and Martha, properly could admit evidence

11 supporting the inference that defendant had killed Glenna for financial gain despite the

finding of the trial court in a separate trial for the murder of Glenna that the murder for

12 financial gain special circumstance had not been proved, the trial court properly could

permit defendant's prosecution for the murders of Martha and Joyce despite the

13 circumstance that in another trial on a different charge, a court had determined that the

evidence then before the court at a hearing on the admissibility of evidence of other crimes

14 did not establish defendant's guilt of the murders of Martha and Joyce. Defendant does

not provide authority, and our research has not produced support, for the claim that a

15 murder may not be prosecuted if in a prior prosecution for a different crime, evidence

regarding that murder was not considered strong or reliable enough to be admitted as

16 evidence of guilt or as evidence supporting a factor in aggravation.

17

18 Catlin, 26 Cal. 4th at 128-30.

19 The state supreme court reasonably rejected the claim for the reasons stated by that court. The

20 claim otherwise fails on de novo review. The record reflects that Petitioner was not charged with the

21 murders of Joyce and Martha in the Monterey County proceeding. Whether Petitioner murdered Joyce

22 or Martha was not an issue of ultimate fact before the Monterey County court; no ruling thereon,

23 conviction or acquittal, was rendered by the Monterey court. Accordingly, principles of collateral

24 estoppel are not implicated. See Dowling, 493 U.S. at 349.

25 The jury presumably considered the admissible other crimes evidence consistent with its

26 instructions. Petitioner has not demonstrated constitutional error in this regard. State law error, if any

27 there be, alone is not a basis for federal habeas relief.

28 Accordingly, it does not appear that the California Supreme Court’s rejection of aspects of claim

47

1 5 was contrary to, or an unreasonable application of, clearly established federal law, as determined by

2 the Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the

3 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

4 The claim otherwise lacks merit upon de novo review, for the reasons stated.

5 c. Conclusions

6 The state supreme court reasonably could find trial court did not err by admitting evidence of

7 deaths of Joyce and Martha that was found legally insufficient as “other crimes” evidence in the Monterey

8 County proceeding.

9 Moreover, that court reasonably could find Petitioner failed to show structural or more than

10 harmless error as a result of the alleged constitutional deprivations.

11 Accordingly, it does not appear that the California Supreme Court’s rejection of claim 5 was

12 contrary to, or an unreasonable application of, clearly established federal law, as determined by the

13 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the facts

14 in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

15 The balance of the allegations fails on de novo review, for the reasons stated.

16 Claim 5 shall be denied.

17 5. Claims 6 and 1913

Petitioner alleges the trail court erred by denying counsel’s motion to sever amended

18

information Count I (1976 murder of Joyce) from Count II (1984 murder of Martha) (i.e. claim 6), and

19

by failing to provide separate juries for the guilt and penalty phases (i.e. claim 19), denying him due

20

process, a fair trial, an impartial jury, and freedom from cruel and unusual punishment under the Fifth,

21

Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 102, 192; see also CT 1762-66, 1781-85;

22

RT 57-59.)

23

a. State Court Direct and Collateral Review

24

i. Claim 6

25

Petitioner’s allegation that the joint trial on counts I and II violated his rights to due process and

26

27

28

13

Petitioner repeats aspects of claims 6 and 19 in his claim 37.

48

1 a fair trial under the Fifth and Fourteenth Amendments was considered on direct appeal and denied on

2 the merits. Catlin, 26 Cal. 4th at 110-113.

3 The claim was raised in the second state habeas petition and (as to other than ineffective assistance

4 of counsel and the constitutionality of the death penalty) it was denied on procedural grounds as raised

5 and rejected on appeal (In re Waltreus). (Order No. S173793.)

6 ii. Claim 19

7 Petitioner’s allegation that trying the guilt and penalty phases before the same jury violated his

8 rights to a fair trial, due process, a reliable determination of guilt and penalty by an impartial jury, and

9 freedom from cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments

10 was raised on direct appeal and denied on the merits. Catlin, 26 Cal. 4th at 113–15.

11 The claim was raised in the second state habeas petition and denied on procedural grounds (as to

12 other than ineffective assistance of counsel and the constitutionality of the death penalty) as raised and

13 rejected on appeal (In re Waltreus). (Order No. S1736793.)

14

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