(HC) Schuster v. Espinoza

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LARISSA SCHUSTER, Case No. 1:12-cv-01482-AWI-SAB-HC

12 Petitioner,

FINDINGS AND RECOMMENDATION

13 v. RECOMMENDING DENIAL OF PETITION

FOR WRIT OF HABEAS CORPUS

14 JANEL ESPINOZA,

(ECF No. 4)

15 Respondent.

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17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2254.

19 I.

20 BACKGROUND

21 On December 12, 2007, Petitioner was convicted after a jury trial in the Fresno County

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22 Superior Court of first-degree murder. The jury also found true the special allegation that the

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23 offense was carried out for financial gain. (17 CT 5046). Petitioner was sentenced to life in

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24 prison without the possibility of parole. (LD 1). On February 28, 2011, the California Court of

25 Appeal, Fifth Appellate District affirmed the judgment. People v. Schuster, No. F055692, 2011

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Venue for Petitioner’s trial was changed to Los Angeles County. People v. Schuster, No. F055692, 2011 WL

680211, at *1 n.2 (Cal. Ct. App. Feb. 28, 2011).

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“CT” refers to the Clerk’s Transcript on Appeal lodged by Respondent on December 21, 2018. (ECF No. 131). CT

page numbers refer to the page numbers stamped at the top right corner.

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“LD” refers to the documents lodged by Respondent on December 21, 2018. (ECF No. 131).

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1 WL 680211 (Cal. Ct. App. Feb. 28, 2011). The California Supreme Court denied Petitioner’s

2 petition for review on June 8, 2011. (LDs 3, 4).

3 On September 7, 2012, Petitioner commenced the instant proceeding by filing a petition

4 for writ of habeas corpus. (ECF No. 1). On December 14, 2012, Respondent filed a motion to

5 dismiss the petition as untimely. (ECF No. 15). On March 28, 2016, the Court granted the

6 motion to dismiss and dismissed the petition as untimely. (ECF No. 59). The Ninth Circuit

7 reversed the judgment and remanded the case for further proceedings. (ECF No. 67).

8 In the petition, Petitioner raises the following claims for relief: (1) Miranda violation; (2)

9 instructional errors; (3) ineffective assistance of counsel; (4) erroneous discharge of juror; and

10 (5) cumulative error. (ECF No. 4). Respondent filed an answer, and Petitioner filed a traverse.

11 (ECF Nos. 130, 136).

12 II.

13 STATEMENT OF FACTS4

14 PROSECUTION EVIDENCE

15 As of early 2002, Schuster resided in Clovis with her husband and their son, T.

Their daughter either had been sent, or soon would be sent, to live with Schuster’s

16 parents in Missouri. Schuster owned a business, Central California Research

Laboratories (CCRL), in Fresno. Timothy was a manager in the cardiology

17 department at Saint Agnes Medical Center (Saint Agnes).

18 Schuster and Timothy separated acrimoniously in 2002. For a while, they

maintained separate living quarters in the family residence. Schuster complained

19 about this arrangement. From the time of the separation on, Schuster also acted as

if the house and business were hers, and she did not want Timothy to have

20 custody of T., or a relationship with him. She often said that she would like to see

Timothy dead.

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Around July 4, 2002, Timothy moved out of the house and into a condominium.

22 Schuster was enraged that he left and took items from the house while she was on

a trip. At one point, Schuster told a neighbor that she sometimes thought she

23 should just kill Timothy and be done with it. She twice asked someone who came

to her house to work on a barbecue if he would help her enter Timothy’s

24 residence and retrieve some property.

25 On August 8, 2002, Schuster had Leslie Fichera, a chemist at CCRL, rent a

storage unit at Security Public Storage, which was a couple miles from the lab.

26 Schuster said she wanted to store some things that she wished to keep hidden

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The Court relies on the California Court of Appeal’s February 28, 2011 opinion for this summary of the facts of

28 the crime. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009).

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1 from Timothy. Fichera rented unit A–182 in her own name, then turned the entry

code and instructions over to Schuster.

2

On August 10, 2002, Timothy returned home from a trip to find his residence

3 ransacked and items he had shared with Schuster gone. Also missing was a report

he had been using to document his involvement with T. for custody purposes.

4 Schuster subsequently admitted to various people that she and Fagone were

responsible.5 Schuster laughed about it. She told her manicurist that she had gone

5 back a couple of times because it gave her a feeling “better than sex” to sit in a

chair and see what she had done to the place. She also said she keyed Timothy’s

6 pickup, and that it was like a trophy and gave her a happy feeling every time she

saw the key mark on the side of the truck.

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After the break-in, the couple’s relationship deteriorated further. Timothy moved

8 to a house in Clovis that was equipped with an alarm system and motion sensors.

He expressed concern about Schuster and obtained a handgun and concealed

9 weapon permit.

10 Schuster told her manicurist that she prayed every night that Timothy would die.

She asked Fichera if Fichera’s boyfriend knew anyone who could rough up

11 somebody. Schuster told a fellow member of her church choir that she would do

everything in her power to keep Timothy from getting the business. She asked the

12 barbecue repairman if he would go to Timothy’s house, stun him to the ground

with a stun gun when he answered the door, and then flag her down, where she

13 would be waiting a couple of houses away.

14 On April 30, 2003,6 a blue 55–gallon barrel was purchased and sent to CCRL,

although it was not the type of barrel the lab normally used. Schuster said it was

15 for yard clippings, although she asked a lab employee if he thought a body would

fit in it. A couple of times, Schuster told this same employee that if she could kill

16 Timothy and get away with it, she would, and she once asked if the employee

knew anyone who would rough up Timothy or kill him. The employee took these

17 various remarks as jokes.

18 Although CCRL had hydrochloric, sulfuric, and acetic acid on hand, very little

was used. In Fichera’s experience, probably no more than one bottle of

19 hydrochloric acid would be used in an entire year. Between June 13 and July 2,

however, CCRL purchased, through orders placed by Schuster, three cases of

20 hydrochloric acid and one case of sulfuric acid. Each case contained six 2.5–liter

bottles.

21

In June, Schuster told her manicurist that she could kill Timothy and get away

22 with it, and that she knew people who could do it. That same month, a neighbor

saw Schuster moving a blue barrel to the side of her garage.

23

Around July 9, Timothy and his good friend and coworker, Mary Solis, lost their

24 jobs at Saint Agnes. Schuster laughed when she heard the news. On the evening

of July 9, Timothy had dinner with Mary and Bob Solis and Victor Uribe, Jr. The

25 Solises arranged to meet Timothy the next morning, and he left their home around

10:00 p.m. He, however, did not meet them the next morning or show up for his

26 scheduled exit interview at the hospital.

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Fagone, who was in his 20’s, was a lab assistant at CCRL for part of 2002. After he quit, he often babysat T. and

performed other tasks for Schuster.

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Further references to dates in the statement of facts are to dates in 2003, unless otherwise specified.

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1 Uribe went by Timothy’s house; Timothy’s pickup was in the garage, but no one

answered the door. The police were summoned. A cursory search of the house

2 revealed nothing overtly suspicious. Although there were no signs of forced entry

or a struggle, the Solises’ concern grew upon learning Timothy was not in the

3 house, but his cell phone was on the dresser. Timothy would not be late to

something as important as the exit interview, and he always carried his cell phone

4 in case his children needed him. Nevertheless, the Solises were told they had to

wait 24 hours to file a missing person report.

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Around this same time, a CCRL employee noticed the blue barrel was gone. He

6 also noticed a bottle of chloroform on top of the acid cabinet. When he asked,

Schuster confirmed it was what doctors used to soak rags in to knock people out.

7

When Schuster arrived at work on Thursday morning, July 10, she was

8 complaining about her shoulder. She said she had hurt it by working out earlier

that week. That evening, Timothy did not show up for the scheduled exchange of

9 custody of T. Schuster told her manicurist that she had a feeling the divorce was

finally going to go her way.

10

The next morning, Friday, July 11, Robert Solis filed a missing person report with

11 the Clovis Police Department. In response, Officer John Willow went to

Timothy’s house. He found a gun underneath a cushion on a chair near the front

12 door. Locating a cell phone in the bedroom, he called every number to see if

anyone had had contact with Timothy. When he contacted Schuster that

13 afternoon, she said she had not heard from Timothy. After Willow had contact

with Schuster’s manicurist, who provided information regarding the volatile

14 divorce that was pending, the matter was turned over to detectives for further

investigation.

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When Detectives Vincent Weibert and Larry Kirkhart entered Timothy’s house

16 later that afternoon, they found some damage to the “pony wall” behind the chair

on which the gun was found, as if the chair had been forcibly pushed into the

17 wall. Inside a briefcase in the same room was a microcassette recorder and

tape.7 The caller ID record for the telephone in the master bedroom showed only

18 one call received, at 2:02 a.m. The call was from Schuster’s cell phone number.

Kirkhart subsequently arranged for Schuster to come to the police department to

19 speak with the detectives. She was accompanied by a friend.

20 During the interview conducted by Kirkhart and Weibert, Schuster related that she

and Timothy were going through a divorce and had a difficult time

21 communicating verbally.8 They sometimes went for three weeks without talking

or exchanging e-mails. Schuster stated that the last message she got from Timothy

22 was on Tuesday the 8th, and it said he was planning to pick up T. at 6:00 p.m. on

Thursday. When Timothy did not show, Schuster and T. both tried unsuccessfully

23 to contact him. Schuster noted that she was leaving with T. on Sunday morning

for a two-week vacation, and Timothy always gave her trouble whenever she

24 wanted an extra day.

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The recording contained messages Schuster had left on Timothy’s answering machine, apparently in 2002. In

many of them, Schuster called Timothy vulgar names and cast aspersions on his masculinity and demanded the

26 return of certain items of property. On one occasion, she threatened to have his nursing license removed. On

another, she said she hated his guts and hoped he burned in hell.

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A video recording of the interview was shown to the jury. As Schuster was very talkative and volunteered

information on a number of subjects, there was much more conversation between her and the detectives than we

28 summarize here.

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Schuster related that she learned that Thursday evening about Timothy losing his

2 job. Concerned, she called him again around 8:30 p.m. and left a message asking

him to call. The last time she called Timothy that night was around 10:30 p.m.

3 She drove by his house and knocked on the door at about 10:30 or 10:45 p.m.,

after which she did not try to contact him further at his home or by telephone.

4 Schuster related that she last saw Timothy in person on Saturday, July 5, and

spoke to him last about a month or two before that.

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When asked where she was on Wednesday, the last day the Solises saw Timothy,

6 Schuster replied that she had worked all day. As her shoulder was bothering her,

she and T. watched a Weird Al Yankovic movie that evening. She fell asleep on

7 the couch. When she awoke, it looked like her cell phone had been dialed, and she

thought she must have rolled over and hit a button or something. Asked if she had

8 Timothy’s number on speed dial, Schuster said she thought so. Schuster denied

talking to Timothy or calling him intentionally. Weibert asked if her cell phone

9 was handy, but she said it was at home.

10 Weibert then informed Schuster that the last incoming call at Timothy’s house

was from her cell phone number. He suggested that if she had some conversation

11 with Timothy about child custody or money, that, together with his losing his job,

might have been enough to push him over the edge. Schuster insisted that she had

12 no information and did not have a conversation with him.

13 After a discussion concerning whether Schuster had someone to help her through

this and whether the police chaplain might help, Kirkhart offered to give Schuster

14 a ride home. She responded that she had her car. Kirkhart then offered her water

and left the room to get it for her. Weibert also left the room.

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Weibert thought Schuster’s story of accidentally making the telephone call while

16 asleep was unusual, as was her statement that she had not brought her phone. He

went to speak with the friend who had accompanied Schuster, but found no one.

17 The only vehicle parked in front of the police department was Schuster’s Lexus.

Looking through the car window, Weibert saw a cell phone on the center console.

18 When he called Schuster’s number, the cell phone rang. Weibert informed

Kirkhart.

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Kirkhart told Schuster about finding her cell phone and asked if he could confirm

20 her story about the speed dial. She agreed and accompanied detectives to the car.

At her request, she was allowed to retrieve the phone. Walking back to the

21 interview room, however, she appeared nervous. Her hands were shaking and she

was trying to manipulate the phone. Concerned that she might try to change some

22 of its contents, Weibert asked if he could see it. Schuster handed it to him.

23 Back in the interview room, Weibert determined that none of the speed dial

numbers belonged to Timothy. Schuster asked for water; the detectives left the

24 room but monitored her from another location. She apparently retrieved her

messages.

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When Weibert returned, Schuster claimed that she had found Timothy’s number

26 under T.’s name, but had accidentally just deleted it. Later, however, she admitted

that she had made the call to Timothy’s house. She explained that she just wanted

27 to make sure there would be no trouble on Saturday, because she was afraid

Timothy would not return T. from visitation in time for the trip. Schuster said

28 Timothy was kind of asleep, and she estimated the call was less than 30 seconds

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1 long. Schuster said she had made a mistake by not telling the detectives, denied

being deceitful about anything else, and stated she did not know what could have

2 happened between the time of the phone call and the time of Timothy’s

appointment. After further discussion about a church Schuster and Weibert had

3 both attended, how the detectives could reach Schuster while she was out of town,

and how she had been praying for Timothy, arrangements were made for Schuster

4 to bring Kirkhart a notebook she discovered that Timothy had been keeping about

her. The interview then ended.

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The next morning, Tami Belshay, who had accompanied Schuster to the police

6 department, went to Schuster’s house. Schuster was upset that the police had

caught her in a lie and worried that they might tap her phones or put a tracking

7 device on her car. She said that if they did, they would know she went to the lab at

about 2:00 or 3:00 that morning. Schuster said she had gone to put on a sample

8 run for Fichera.

9 When Belshay informed Schuster that the police could get search warrants for the

lab and her home even though Schuster would be on vacation, Schuster asked

10 Belshay to stay while she went to Fagone’s and got T.’s bicycle. When she got

there, she told Anthony Fagone, Fagone’s father, that she had come to talk to Mrs.

11 Fagone about some baskets she had ordered. Told Mrs. Fagone was not home,

Schuster insisted that she wanted to talk to Fagone and almost tried to force her

12 way in before getting the bicycle and leaving.

13 When Schuster returned home, Belshay remarked that the police would take

Schuster’s computers and that anything deleted would still be on the hard drives.

14 Shortly after, Schuster asked Belshay to watch T. while Schuster went to the lab

to pay some bills. She seemed harried and frantic. Belshay stayed at Schuster’s

15 house until 2:20 p.m. Sometime between noon and 2:00 p.m., Fagone came by.

He walked in without knocking or ringing the bell, went upstairs, came back

16 down very quickly, and then left. He did not respond when Belshay spoke to him,

and he looked pale and sick.

17

After going to the lab, Schuster contacted Fichera and asked for help finding a

18 truck with a lift gate. Schuster said she needed it to loan a rototiller to a friend.

Ultimately, they went to the U–Haul location on Blackstone between Bullard and

19 Sierra, and Fichera rented a truck in her own name. They left the U–Haul location

separately, with Fichera driving the rental truck.

20

Schuster met with Kirkhart at approximately 4:00 p.m. at Herndon and

21 Blackstone to give him Timothy’s notebook. She was under surveillance at the

time. She drove home at a high rate of speed. Once there, Fagone arrived with T.

22 Schuster then left, again driving so fast that surveillance had to be terminated for

safety reasons.

23

Schuster picked up the rental truck from Fichera. Schuster was in a rush. About

24 50 minutes later, she called Fichera and told her to meet her at the U–Haul place.

Security Public Storage records showed an entry into and exit from unit A–182

25 during the time Schuster had the rental truck. No other entry was made into that

unit between July 9 and 14.

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At the U–Haul place, Fichera observed that Schuster was thirsty and dirty, had

27 scrapes on her shins, and had blood on her shoe from what Schuster said was a

smashed toe incurred while loading the rototiller. Fichera also noticed that the

28 truck’s hand dolly had been used and that only 15 miles had been put on the truck.

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1 Schuster could not have driven the truck from Fichera’s residence to Clovis and

back and had it register only 15 miles.

2

Schuster and T. left on their trip on Sunday morning, July 13. She told an

3 acquaintance coincidentally on the same flight that she had gone to the lab early

that morning because she had forgotten something. On Monday, July 14, Fichera

4 found an envelope on her desk at the lab, on which Schuster had written

“‘thanks.’” Inside was a check, dated July 8 and signed by Schuster, in the

5 amount of $510.25. The memo portion indicated it was reimbursement for travel

and lodging, but the only money Schuster owed Fichera was approximately $40

6 for the rental truck.

7 Fichera and Belshay went to the police on July 14. That evening Kirkhart

obtained search warrants for the storage unit, the lab, and Schuster’s house.

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Inside the storage unit was a blue 55–gallon barrel that contained human remains.

9 They were subsequently identified, through DNA testing, as those of Timothy.

Only the lower half of the body remained; it had been placed into the barrel head

10 down and was floating in fluid that contained hydrochloric acid. The body was in

a state of early decomposition, with the time of death possibly being July 9

11 through 11. Tissue samples tested positive for chloroform, an anesthetic type of

substance that can cause rapid loss of consciousness and incapacitation.

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The cause of death was the probable combined effects of acute chloroform

13 exposure and hydrochloric acid immersion, although it was very possible that

death resulted solely from the chloroform. It could not be determined whether

14 Timothy was alive when he was placed in the barrel.

15 A can of Lysol air freshener was found on a refrigerator inside CCRL. Such a

product would not be used in the lab for fear of contaminating the analyses being

16 performed. Toward the bottom of the dumpster in a locked enclosure behind the

lab was a case of six empty bottles of hydrochloric acid. Forensic analysis of

17 Schuster’s office computer showed that on June 13, Internet searches were

conducted for the terms “‘acid digestion tissues,’” “‘acid digestion animal

18 tissues,’” and “‘sulfuric acid.’”

19 Schuster was arrested on July 16. In her possession were two receipts from a store

about halfway between CCRL and Security Public Storage. Both showed

20 purchases made just after 7:30 p.m. on Saturday, July 12, including Lysol and

other air fresheners. Also in Schuster’s possession was a card with the storage

21 facility entry instructions and a code number.

22 DEFENSE EVIDENCE

23 The thrust of Schuster’s defense was that Fagone killed Timothy.

24 The manager of Security Public Storage told a defense investigator that she saw a

U–Haul truck drive in on Saturday, July 18. She was positive it contained two

25 males. The driver was in his early 20’s; the passenger was younger and had a

skimpy beard. When she checked the dumpster later that day, she smelled the

26 same smell as when the storage unit was first opened by the police. She believed

the smell was coming from a black plastic garbage bag that she thought contained

27 body parts and that she felt had come from the U–Haul.

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1 Dr. Paul Herrmann, a medical doctor specializing in forensic pathology, reviewed

various materials and photographs in connection with this case. In his opinion,

2 Timothy’s body was cut in half before it was immersed in acid, and the other half

was not dissolved in the barrel. Herrmann questioned the completeness of the

3 police investigation, particularly the lack of forensic evaluation to determine if

there was blood residue at Schuster’s or Timothy’s residence.9

4

A couple of months before Fagone’s arrest, he told a friend that someone wanted

5 him to chloroform her husband and rob him. He never implied, however, that

Schuster wanted him to kill her husband. Fagone also took this friend to the

6 Tower District to show him a house he had rented. He said Schuster had helped

him obtain the house and was going to pay for his rent.

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In May or June, Fagone asked another friend to go up to Timothy’s door, knock,

8 and then taser Timothy in the neck. Fagone wanted to knock Timothy out and tie

him up so that he could rob him. Although Fagone said Schuster was paying him

9 to do this, he never said she wanted him to kill Timothy.

10 Matthew Crowder, another of Fagone’s friends, recalled Fagone joking about

chloroforming someone or disposing of someone in a barrel of acid. These were

11 running jokes within the group of friends. Although Fagone never said anything

about Schuster wanting to hurt her husband, he said Schuster was upset because

12 her husband was taking all her money and property. Fagone also was upset

because he was siding with Schuster. In June, Fagone was injured in a motorcycle

13 accident. In light of his physical condition, Crowder did not believe he could

personally subdue a person such as Timothy. In Crowder’s opinion, Timothy was

14 fairly passive and nonviolent and easily could be led by people he felt had more

power and prestige. Fagone said Schuster was a powerful person with the money

15 and means to be able to do stuff.

16 Dr. Stephen Estner, a forensic psychiatrist, opined that Schuster manifested

battered spouse syndrome (BSS) in the context of this case. He concluded she was

17 “traumatized to an enormous degree,” and that there was emotional abuse that

caused physical symptoms.10

18

Schuster testified and denied killing Timothy, whom she married in 1982. She

19 detailed the early, happy days of their marriage, followed by the deterioration of

their relationship and her ultimate decision to file for divorce in 2002. She also

20 described heart palpitations and other physical symptoms she suffered due to

stress, as well as her feelings about, and response to, Timothy’s moving out of the

21 family home while she was gone and taking community property when a property

division had not been decided. She admitted she broke into his home and took

22 things in August of 2002 out of retaliation, although she denied keying his truck.

She also related how Timothy attempted to use the child custody order against her

23 on a number of occasions.

24 Timothy first introduced Schuster to Fagone’s parents in 2001 or 2002. Fagone

went to work for Schuster at CCRL and later became T.’s babysitter. He also did

25 things in and around the house for her, so he had a key. Schuster trusted him, and

she paid him for his work.

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27 9

In rebuttal, the prosecution presented expert witnesses who disagreed with Herrmann’s conclusions.

10

We will discuss Estner’s testimony in more detail in conjunction with Schuster’s claim of ineffective assistance of

28 counsel, which we address post.

8

1 Schuster admitted talking to a number of people concerning how she felt about

Timothy. When she said that she wished he were dead and similar things, she did

2 not mean it literally. She also vented about the situation to Fagone, as venting was

her escape from the enormous pressures she was under at the time.

3

In 2003, she was concerned most about Timothy’s threat to try to get sole custody

4 of T. Timothy also had demanded $1 million for his half of the business. These

subjects were discussed when Schuster vented to Fagone and others. As of July 9,

5 Fagone had not expressed to Schuster any hostility toward Timothy.

6 Around June, Schuster made plans to take T. on a long vacation trip to Texas,

Florida, and Missouri. They were scheduled to be gone for approximately two

7 weeks beginning July 13. The trip was extremely important to both of them. It

was a dream vacation for T. The custody agreement gave Schuster the right to two

8 weeks of vacation every summer, but she expected Timothy to try to undermine

the trip at the last minute.

9

On July 9, Schuster received a telephone call from her attorney’s office asking her

10 to stop by the next day to sign a stipulation and order concerning her vacation

period with T. Schuster had had no idea Timothy’s attorney was going to prepare

11 something, but it made her feel like things would be okay with the trip. She was

still worried, however, that Timothy would not bring T. back from visitation in

12 time for them to make their 6:30 a.m. flight on July 13.

13 July 9 was a normal workday for Schuster. That evening Fagone came over and

they all watched a Weird Al Yankovic movie. Fagone left sometime after

14 midnight.

15 Schuster placed a call to Timothy around 2:00 a.m. on July 10. She called because

she still was upset about the stipulation and order. She wanted to make sure

16 Timothy did not have anything “up his sleeve” and that T. was going to be back in

her custody so they could get on the plane Sunday morning. Timothy and

17 Schuster had a very brief conversation. Schuster initially forgot about making this

call when she was interviewed by the police; when she remembered, she was

18 dishonest because she feared the police would detain her and make her a suspect.

This was within 24 hours of leaving on the trip, and she knew she could not,

19 under any circumstances, deny her son that vacation.11

20 On Thursday, July 10, Schuster went to her attorney’s office to sign the

stipulation and then on to work. Fagone was with T. most of the day. Schuster had

21 a standing appointment to get her nails done every Thursday at 5:30 p.m. T. went

with her to the nail appointment, but Timothy failed to pick him up at the nail

22 salon as per the standing visitation arrangement. As Schuster and T. were leaving

the salon, Schuster ran into a friend who told her that Timothy and Mary Solis had

23 lost their jobs at Saint Agnes earlier that week. This came as a shock to Schuster.

She and T. both made a number of calls to Timothy’s home and cell phone, trying

24 to find out what was going on. Schuster went by Timothy’s house between 10:30

and 11:00 p.m., even though she felt uncomfortable doing so given that they were

25 not getting along well.

26

27 11

Cell phone records showed that at the end of the 22–second call, the tower handling the call switched to one closer

to Timothy’s house than the originating tower. Schuster denied driving to Timothy’s house; she was home when she

28 made the call.

9

1 Friday, July 11, was another workday for Schuster. She heard nothing with regard

to Timothy’s whereabouts. She was concerned and did not know what was going

2 on or whether he was trying to undermine the trip. She was focusing on T. and his

trip and trying to do everything possible to make sure he was not going to be

3 disappointed.

4 At some point that day, Schuster was asked to talk with members of the Clovis

Police Department. She agreed to do so. She arrived at the police station around

5 10:00 p.m., after she had made arrangements to have Fagone look after T. She did

not leave the police station until between 1:00 and 2:00 a.m. She was physically

6 exhausted. Emotionally, she was very upset. She was angry because she thought

this could be something Timothy was trying to do to undermine the vacation and

7 that she was not going to be able to go with T. She also was scared that, if this

was a disappearance as the police said, they were going to detain her and keep her

8 from going on the trip.

9 When Schuster got home, she believed T. was in bed, asleep. Fagone was there,

and she told him what took place at the police department and how she felt they

10 were trying to make her a suspect and about her anger that the trip might be

jeopardized. Fagone was talking at the same time she was ranting and venting,

11 and she heard him say something like there had been an accident and Timothy

was dead and that “they” had killed him. She thought it was a sick joke, then

12 realized she had heard correctly. When Fagone said Timothy’s body had been

stashed in her garden shed on the side of her house, she became almost hysterical.

13 She considered reporting it to the authorities, but she was not thinking logically.

She told Fagone that he had to move the body now, and she did not care how he

14 did it. She believed Fagone left shortly after.

15 Schuster received a telephone call from Belshay early on the morning of July 12.

Belshay then came to the house. While Belshay was there, Schuster went to the

16 home of Fagone’s parents, which was nearby, and retrieved T.’s bicycle. She also

wanted to make sure Fagone had taken the body out of her shed. Fagone told

17 Schuster that he had put the body in a barrel in the warehouse section of her lab.

Schuster considered notifying the police, but feared she would be prevented from

18 going on the trip. In hindsight, she knew she made some bad decisions, but she

was overwhelmed at the time.

19

Schuster told Fagone that the barrel could not stay at the business. He said the

20 only way he could move it was if she helped him get a truck with a lift gate. She

agreed to try. Frantic, she called Fichera for help. They eventually obtained a

21 rental truck, which Schuster picked up from Fichera after giving Kirkhart

Timothy’s journal and going home briefly.

22

Schuster drove the truck to the lab, where Fagone was waiting with a couple of

23 other individuals. Schuster and Fagone went into the warehouse, and she cleared a

pathway so he and his companions could get the barrel out of there. She then went

24 to her office and did other things. Fagone had mentioned that he did not know

where to take the barrel, so Schuster suggested temporarily taking it to her storage

25 unit. She made him promise, however, that he would take care of moving it

somewhere it could not be found. He assured her that he would do that.

26

When the truck left for the storage facility, Schuster followed in Fagone’s car and

27 waited near the facility. The truck came out of the storage facility, Schuster and

Fagone traded vehicles, and she went directly to the U–Haul center. Fichera met

28 her there. At some point, Schuster stopped at a store to get some cleaning supplies

10

1 and air freshener, as she had noticed an odor from the barrel in the warehouse area

of the lab.

2

When Schuster returned home, T. was there. Schuster said nothing to him about

3 his father. She knew she would have to be accountable at some point, but was just

thinking a day at a time.

4

Schuster denied purchasing large quantities of acid in the spring of 2003 in order

5 to dispose of Timothy’s body. Instead, they were for an exhaustive project that

had to be done occasionally involving cleaning all of the glassware in the lab.

6 Schuster ran the Internet searches because she was looking for information on

which acids would remove inorganic and organic materials.12

7

Schuster denied purchasing the blue barrel in order to dispose of Timothy’s body.

8 She did not recall ordering it, although she remembered it coming into the lab.

She was surprised that it was bigger than she thought she had ordered. One of her

9 employees, who knew the stress she was under from the divorce, jokingly said he

thought a body might fit in it. Schuster never took it home.

10

After Schuster learned of Timothy’s death, she allowed T. to go with Fagone in

11 Fagone’s vehicle. Schuster felt she probably was not making sound judgments

that day, but Fagone had said Timothy’s death was an accident, and Schuster

12 never believed he would hurt T. The plan was for Fagone to take T. to a picnic

and then meet Schuster at the lab to move Timothy’s body.

13

An abstract of judgment dated February 20, 2007, showed Fagone was convicted

14 of first degree murder and residential burglary. He was sentenced to life in prison

without the possibility of parole. Fagone did not testify in Schuster’s trial.

15

Schuster never solicited Fagone to talk to his friends about robbing or

16 chloroforming or using a stun gun on Timothy. Fagone never told her that he

purchased a stun gun from Herb Bauer’s Sporting Goods on June 20.13 She never

17 directed Fagone to kill Timothy. She did not provide him with chloroform. She

did not recall ever discussing the substance or its effects with him.14 She never

18 told him that she would pay for the house he found in the Tower District, although

she gave him a $2,000 cash advance against the work he did for her, such as

19 watching T. and the house, so he would be able to move in.

20 Schuster, 2011 WL 680211, at *1–9 (footnotes in original).

21 III.

22 STANDARD OF REVIEW

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

24 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws

25 12

Expert witnesses disagreed about the use of aqua regia, the mixture of hydrochloric and nitric acids discussed by

Schuster, to clean glassware, and the quantity of that solution that would be required to clean the amount of

26 glassware at CCRL. People who would have expected to be informed if such a mass cleaning project were planned

received no such information from Schuster.

27

13

During a search, a receipt for a stun gun and two batteries was found attached to a bulletin board in Fagone’s

room.

14

A search of the hard drive on Fagone’s computer showed that the operator repeatedly typed “‘can chloroform

28 make you pass out’” in connection with a Web site called Ask.com.

11

1 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

2 529 U.S. 362, 375 (2000). Petitioner asserts that she suffered violations of her rights as

3 guaranteed by the U.S. Constitution. The challenged convictions arise out of the Fresno County

4 Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).

5 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

6 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

7 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th

8 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is

9 therefore governed by its provisions.

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

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

12 (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

13 determined by the Supreme Court of the United States; or

14 (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

15 State court proceeding.

16 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538

17 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413.

18 As a threshold matter, this Court must “first decide what constitutes ‘clearly established

19 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71

20 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this

21 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as

22 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words,

23 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles

24 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition,

25 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal

26 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in

27 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of

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

12

1 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.

2 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an

3 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552

4 U.S. at 126; Moses, 555 F.3d at 760.

5 If the Court determines there is governing clearly established Federal law, the Court must

6 then consider whether the state court’s decision was “contrary to, or involved an unreasonable

7 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C.

8 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the

9 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

10 of law or if the state court decides a case differently than [the] Court has on a set of materially

11 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The

12 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character

13 or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New

14 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to

15 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the

16 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to”

17 clearly established Supreme Court precedent, the state decision is reviewed under the pre-

18 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).

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

20 the state court identifies the correct governing legal principle from [the] Court’s decisions but

21 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.

22 “[A] federal court may not issue the writ simply because the court concludes in its independent

23 judgment that the relevant state court decision applied clearly established federal law erroneously

24 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer,

25 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists

26 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”

27 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the

28 correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. If

13

1 the Court determines that the state court decision is objectively unreasonable, and the error is not

2 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious

3 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

4 The Court looks to the last reasoned state court decision as the basis for the state court

5 judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859

6 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the

7 reasoning from a previous state court decision, this Court may consider both decisions to

8 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.

9 2007) (en banc). “When a federal claim has been presented to a state court and the state court has

10 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the

11 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at

12 99. This presumption may be overcome by a showing “there is reason to think some other

13 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v.

14 Nunnemaker, 501 U.S. 797, 803 (1991)).

15 Where the state courts reach a decision on the merits but there is no reasoned decision, a

16 federal habeas court independently reviews the record to determine whether habeas corpus relief

17 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853

18 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional

19 issue, but rather, the only method by which we can determine whether a silent state court

20 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot

21 analyze just what the state court did when it issued a summary denial, the federal court must

22 review the state court record to determine whether there was any “reasonable basis for the state

23 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or

24 theories . . . could have supported, the state court’s decision; and then it must ask whether it is

25 possible fairminded jurists could disagree that those arguments or theories are inconsistent with

26 the holding in a prior decision of [the Supreme] Court.” Id. at 102.

27 ///

28 ///

14

1 IV.

2 REVIEW OF CLAIMS

3 A. Miranda Violation

4 In her first claim for relief, Petitioner asserts that the statements she made to police in her

5 July 11–12, 2003 interview were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

6 (ECF No. 4 at 21). 15 Respondent argues that the state court reasonably denied relief on

7 Petitioner’s Miranda claim. (ECF No. 130 at 22).

8 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate

9 District, which denied the claim in a reasoned opinion. The California Supreme Court summarily

10 denied Petitioner’s petition for review. As federal courts review the last reasoned state court

11 opinion, the Court will “look through” the California Supreme Court’s summary denial and

12 examine the decision of the California Court of Appeal. See Wilson, 138 S. Ct at 1192.

13 In denying Petitioner’s Miranda claim, the California Court of Appeal stated:

14 Prior to trial, Schuster unsuccessfully sought to suppress the statements she made

to police in the interview of July 11 through 12 as having been taken in violation

15 of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).16 On appeal, she contends

the interview became custodial when detectives discovered her cell phone in her

16 car; hence, Miranda advisements should have been given at that point, and failure

to do so should have resulted in suppression of all evidence of statements and

17 events occurring after that point. We disagree.

18 The Trial Court Proceedings 17

19 At the hearing on the suppression motion, Weibert testified that on the evening of

July 11, he and Kirkhart were investigating Timothy’s disappearance. Timothy

20 had been reported as a missing person, and the detectives were trying to find out

what had happened to him. At that point, they did not know if he had left town,

21 become the victim of foul play, or possibly harmed himself.

22 The detectives wanted to talk to Schuster about some of the things they had found

in the search of Timothy’s home. Accordingly, Kirkhart contacted her by phone

23 and made arrangements for her to come down to the police department to speak to

them. Weibert initially understood Schuster had obtained a ride from someone,

24 but later determined she drove herself. She arrived at the police department about

10:00 p.m. and was ushered into the interview room. At no time was she advised

25 of her Miranda rights.

26 15

ECF page numbers refer to the page numbers stamped in blue at the top of the page.

16

Schuster also raised Fourth and Sixth Amendment grounds that she does not now repeat.

27 17

The content of Schuster’s interview with police is summarized in the statement of facts, ante. We focus here on

the circumstances surrounding the interview. We have viewed and considered the video recording, as did the trial

28 court. There is no video of what occurred outside the interview room.

15

1

At the time the detectives were conducting the interview, they knew that the last

2 phone call Timothy had received was from Schuster’s cell phone. When Schuster

was asked to come to the police station, she was not a suspect, however, because

3 the detectives did not know what had happened to Timothy. Their concern with

the last phone call was that Timothy might have said something to Schuster that

4 would shed light on where he could have gone or on his state of mind.

5 During the interview, Schuster was asked specifically whether she had brought

her cell phone with her, and she said she had not. When Weibert discovered the

6 phone was in her car, he believed it was possible Schuster had not been truthful

about bringing it, but she also could have forgotten.

7

Schuster and the two detectives walked outside. Schuster unlocked her vehicle

8 and retrieved the cell phone. The detectives were speaking with her about it when

her demeanor changed. She began to appear nervous. Her hands began shaking

9 and her voice changed pitch. She began to open the cell phone and acted as if she

were going to manipulate it. Concerned that she might try to change or delete

10 entries in the phone, Weibert asked if he could see it and she handed it to him.

Weibert asked politely; he did not order or demand it.

11

Weibert began checking the speed dial numbers programmed into Schuster’s

12 phone as the three were walking back to the interview room, because of

Schuster’s statement that she had Timothy’s number on speed dial and had

13 accidentally called him. He completed his inspection while they were inside. He

estimated that the entire process of retrieving and checking the phone took no

14 more than five to 10 minutes. During that time, Schuster never expressed a desire

to end the interview, nor did she ask Weibert to return the phone to her.

15

Eventually, Schuster admitted having made the call and that what she previously

16 told the detectives was not true. Prior to that, Weibert remembered Schuster

saying she was tired, but did not recall her indicating a desire to leave. Schuster

17 did say she had taken some Vicodin that day and had no moisture in her mouth.

Both detectives encouraged her to speak with a chaplain concerning this matter.

18 Before she admitted making the phone call, Schuster asked if the chaplain was

coming in, was assured by Weibert that he would be there soon, and asked for

19 some water. The interview ended when the police chaplain came into the room.

20 When Schuster admitted having made the phone call and previously being

untruthful with the detectives, Weibert still was looking at the possibility that

21 Schuster might have said something to Timothy that evoked a response from him

or that some foul play could have befallen him and she might know something

22 about it. To say Schuster was a suspect when the detectives did not know they had

a crime “might be a little premature,” however.

23

Weibert believed that the chaplain spoke with Schuster for a while. Weibert was

24 not present and did not know how much longer Schuster stayed at the police

department. He believed the interview lasted about two to two and a half hours.

25 At no time was Schuster in custody or not free to leave.

26 At the conclusion of the hearing, the trial court found (1) Schuster’s encounter

with the police was consensual, (2) a reasonable person in the same situation

27 would have understood he or she was free to go, and (3) Schuster understood she

was free to go and was going to leave when the interview was over. Because there

28

16

1 was no custodial interrogation, no Miranda warnings were required. The trial

court then ruled the statements were admissible in the prosecution’s case-in-chief.

2

Analysis

3

In Miranda, supra, 384 U.S. at page 444, the United States Supreme Court held

4 that “the prosecution may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates the

5 use of procedural safeguards effective to secure the privilege against self-

incrimination.... Prior to any questioning, the person must be warned that he has a

6 right to remain silent, that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an attorney, either retained

7 or appointed.”18

8 Schuster’s claim that Miranda was violated rests on her assertion that she was

subjected to an unwarned custodial interrogation from the point at which police

9 discovered her cell phone in her car. We assume, and the People do not dispute,

that the interview constituted “interrogation” within the meaning of Miranda.

10 (See Rhode Island v. Innis (1980) 446 U.S. 291, 301.)

11 “ ‘Absent “custodial interrogation,” Miranda simply does not come into play.’

[Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “[C]ustodial

12 interrogation” means “questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his [or her] freedom

13 of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444.) “Whether

a person is in custody is an objective test; the pertinent inquiry is whether there

14 was ‘ “ ‘a “formal arrest or restraint on freedom of movement” of the degree

associated with a formal arrest.’ ” ’ [Citation.]” (People v. Leonard (2007) 40

15 Cal.4th 1370, 1400.) “Two discrete inquires are essential to the determination:

first, what were the circumstances surrounding the interrogation; and second,

16 given those circumstances, would a reasonable person have felt he or she was not

at liberty to terminate the interrogation and leave.” (Thompson v. Keohane (1995)

17 516 U.S. 99, 112, fn. omitted.)

18 “In deciding the custody issue, the totality of circumstances is relevant, and no

one factor is dispositive. [Citation.]” (People v. Boyer (1989) 48 Cal.3d 247, 272,

19 disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830,

fn. 1; see California v. Beheler (1983) 463 U.S. 1121, 1125.) Important

20 considerations include the site of the interrogation, whether objective indicia of

arrest were present, and the length and form of the questioning. (People v. Boyer,

21 supra, at p. 272.) What matters are the objective circumstances of the

interrogation, not the subjective views harbored by the interrogating officers or

22 the person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323.)

23 “Whether a defendant was in custody for Miranda purposes is a mixed question

of law and fact. [Citation.] When reviewing a trial court’s determination that a

24 defendant did not undergo custodial interrogation, an appellate court must ‘apply

a deferential substantial evidence standard’ [citation] to the trial court’s factual

25 findings regarding the circumstances surrounding the interrogation, and it must

independently decide whether, given those circumstances, ‘a reasonable person in

26 [the] defendant’s position would have felt free to end the questioning and leave’

27 18

In Harris v. New York (1971) 401 U.S. 222, 225–226, the high court held that, although the prosecution may not

introduce unwarned statements as part of its case-in-chief, such statements may be used to impeach a defendant’s

28 inconsistent testimony.

17

1 [citation].” (People v. Leonard, supra, 40 Cal.4th at p. 1400; see People v.

Mayfield (1997) 14 Cal.4th 668, 733.)

2

We conclude, after independently considering the totality of the circumstances,

3 that a reasonable person in Schuster’s position would have felt free to terminate

the interview and leave at all times during questioning.

4

Schuster came voluntarily to the police station and provided her own

5 transportation, and no one suggested that she was, or might be placed, under

arrest. (Compare Yarborough v. Alvarado (2004) 541 U.S. 652, 664, Oregon v.

6 Mathiason (1977) 429 U.S. 492, 495 and People v. Stansbury, supra, 9 Cal.4th at

pp. 831–832 with People v. Esqueda (1993) 17 Cal.App.4th 1450, 1481.) The

7 interview having occurred at the police department does not, without more, render

it custodial. (California v. Beheler, supra, 463 U .S. at p. 1125; People v.

8 Stansbury, supra, at p. 833; People v. Boyer, supra, 48 Cal.3d at p. 272.) The

video of the interview shows that when both detectives were present, Schuster

9 was seated in a corner of the interview room with one detective sitting to either

side, forming a sort of triangle. Neither detective ever was positioned between

10 Schuster and the door or in such a way as to make her feel hemmed in.

11 Of course, “[i]f an individual voluntarily comes to the police station ... and, once

there, the circumstances become such that a reasonable person would not feel free

12 to leave, the interrogation can become custodial.” (United States v. Kim (9th

Cir.2002) 292 F.3d 969, 975.) Here, however, although the detectives never told

13 Schuster she was free to leave, they implied this was so even after her cell phone

was discovered in the car by telling her that the chaplain was on the way.

14

The chaplain was not used as a ruse to keep Schuster talking; she was asked if she

15 wanted to speak to him and, if so, whether she wanted to do it that night and at

home or at the police station. The decision to speak to him that night at the

16 station, although made before she was told her cell phone had been discovered,

was hers alone. Also, after Weibert went through the numbers programmed into

17 the speed dial positions on the phone, Schuster was left alone to make calls or

retrieve her messages, further indications that she was not in custody. (Compare

18 People v. Leonard, supra, 40 Cal.4th at p. 1401 with People v. Esqueda, supra, 17

Cal.App.4th at p. 1481.)

19

Significantly, even after Schuster’s deception came to light, the detectives

20 remained polite and their tones of voice were conversational rather than

accusatory. Even when Weibert expressed skepticism about Schuster’s story that

21 she accidentally dialed Timothy’s number in her sleep, his tone was not harsh or

intimidating.

22

Rather than expressly accusing Schuster of lying, Weibert suggested she had

23 made a mistake and it would be worse if she lied about it. He did not threaten her

with arrest and prosecution, but rather urged her to tell the truth, especially for

24 T.’s benefit. (See Yarborough v. Alvarado, supra, 541 U.S. at p. 664.) He did not

suggest that her deception had made her a suspect, but instead explained that he

25 wanted to know the reason behind the call, and that maybe she said something to

Timothy that was taken the wrong way. His tone was persuasive rather than

26 demanding or insistent.

27 Although Weibert asked very specific questions once Schuster admitted making

the call, his tone never grew stern or accusatory. When Schuster explained why

28 she initially denied making the call, Weibert asked whether she had been deceitful

18

1 about anything else, but appeared to accept her explanation of why she had been

untruthful, as well as her assurance that she had not been untruthful about

2 anything else. He then proceeded to ask, in a conversational manner, what she

thought might have happened, whether she heard anything in the background

3 during the call, and how Timothy sounded. When Schuster said she was tired,

Weibert assured her that they would get her out of there in just a second, but they

4 were still waiting for the chaplain to show up.

5 That police catch an interviewee in a lie and pointedly question him or her about

the deception does not, in our view, transform a noncustodial encounter into

6 custodial interrogation. This is especially true here, where the overall tone of the

interview never changed, and there was nothing in the detective’ questions or

7 demeanors to suggest they suspected Schuster of a crime or that she was no longer

free to leave. That the discovery of Schuster’s deception may have resulted in a

8 prolongation of the interview is not dispositive, nor is the length of the encounter.

(See Yarborough v. Alvarado, supra, 541 U.S. at p. 665.)19

9

None of the detectives’ comments conveyed to Schuster that she was a suspect in

10 a crime, although it was one scenario they had to consider. The detectives did not

know that any sort of crime had been committed, even though their affidavit for

11 the search warrant for Timothy’s house stated there was sufficient motive present

for foul play to befall Timothy at the hands of Schuster or someone looking out

12 for her. They made it clear to Schuster that they did not know what had happened

and were exploring several possibilities. “[A] police officer’s subjective view that

13 the individual under questioning is a suspect, if undisclosed, does not bear on the

question whether the individual is in custody for purposes of Miranda.

14 [Citation.]” (Stansbury v. California, supra, 511 U.S. at p. 324.)

15 Schuster argues that once she was caught in a lie about something that clearly was

important to the police, neither she nor a reasonable person would have believed

16 she was still free to leave. We disagree. The detectives gave the clear impression

they were accepting her explanations, both as to the circumstances under which

17 she made the phone call and why she initially was untruthful. Moreover, Schuster

clearly knew she was free to leave, otherwise she would not have mentioned that

18 she was going out of town soon and then made arrangements for how the

detectives could get in touch with her. That she verified she did not have to wait

19 for the detectives to return once she and the chaplain were finished does not

change this or, more importantly, what a reasonable person in her position would

20 have believed. Significantly, Schuster was allowed to leave the station—indeed,

the state—without hindrance following the interview. (See Oregon v. Mathiason,

21 supra, 429 U .S. at p. 495; People v. Leonard, supra, 40 Cal.4th at p. 1401.)

22 Schuster relies in part on People v. Aguilera (1996) 51 Cal.App.4th 1151 as

support for her claim of custodial interrogation. Aguilera does not help her. There,

23 one of the interrogating officers initially said the defendant was not in custody,

but the officer then explained that the interview would end and they would take

24 the defendant home after he told them the truth. The officers repeatedly rejected

the defendant’s story, and told him that he would not be allowed to leave if they

25 had to interview an alleged alibi witness. (Id. at pp. 1163–1164.) Moreover, the “

‘tag-team’ interrogation” was “intense, persistent, aggressive, confrontational,

26 accusatory, and, at times, threatening and intimidating.” (Id. at pp. 1164–1165.)

27

19

The length of the interview was due in significant part to the amount of information Schuster volunteered—some

28 of it tangentially relevant at best—in response to questions.

19

1 These factors distinguish Aguilera from the circumstances of Schuster’s

interview.

2

We believe People v. Spears (1991) 228 Cal.App.3d 1 (Spears) to be more

3 persuasive. There, the appellate court concluded there was no custodial

interrogation. The factors considered included (1) a portion of the questioning

4 took place at the police station, (2) the interview was extensive, and it included a

pointed question about the defendant’s complicity in the crime under

5 investigation, (3) the officers’ tone was polite and not intimidating, (4) their

questions were not accusatory and the defendant was not led to believe he was a

6 suspect or that the officers considered him guilty, (5) the defendant was told

several times that he was free to leave, and (6) he was allowed to return home at

7 the close of the interview. (Id. at pp. 25–26.)

8 The circumstances here are virtually identical to those in Spears. Although the

officers never expressly stated Schuster was free to go, that such was the situation

9 was clearly conveyed, even after the deception about the cell phone came to light.

A reasonable person in Schuster’s situation would have believed, at all times, that

10 she was free to terminate the interview and leave.

11 Schuster, 2011 WL 680211, at *10–15 (footnotes in original).

12 In Miranda v. Arizona, 384 U.S. 436 (1966), the United State Supreme Court held that

13 before a suspect can be subjected to custodial interrogation, he must be warned “that he has the

14 right to remain silent, that anything he says can be used against him in a court of law, that he has

15 the right to the presence of an attorney, and that if he cannot afford an attorney one will be

16 appointed for him prior to any questioning if he so desires.” Id. at 479. Miranda described

17 “custodial interrogation” as “questioning initiated by law enforcement officers after a person has

18 been taken into custody or otherwise deprived of his freedom of action in any significant way.”

19 Id. at 444.

20 The Supreme Court has “repeatedly emphasized” that “whether a suspect is ‘in custody’

21 is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011).

22 Two discrete inquiries are essential to the determination: first, what were the

circumstances surrounding the interrogation; and second, given those

23 circumstances, would a reasonable person have felt he or she was at liberty to

terminate the interrogation and leave. Once the scene is set and the players’ lines

24 and actions are reconstructed, the court must apply an objective test to resolve the

ultimate inquiry: was there a formal arrest or restraint on freedom of movement of

25 the degree associated with formal arrest.

26 Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks, alteration, and

27 footnote omitted). Thus, “the subjective views harbored by either the interrogating officers or the

28 person being questioned” are not relevant. Stansbury v. California, 511 U.S. 318, 323 (1994) (per

20

1 curiam). “Courts must examine ‘all of the circumstances surrounding the interrogation’ and

2 determine ‘how a reasonable person in the position of the individual being questioned would

3 gauge the breadth of his or her freedom of action.’” Yarborough v. Alvarado, 541 U.S. 652, 663

4 (2004) (quoting Stansbury, 511 U.S. at 322, 325).

5 The state court identified the following facts in determining that Petitioner’s interview

6 was noncustodial. Petitioner came voluntarily to the police station and arrived in her own

7 vehicle. The seating arrangement in the interview room was not such that either detective was

8 positioned between Petitioner and the door or in such a way as to impede Petitioner’s access.

9 After Detective Weibert went through the speed dial numbers on her phone, Petitioner was free

10 to make calls and retrieve her messages. Petitioner’s apparent knowledge of her ability to leave

11 given that she mentioned going out of town and made arrangements for how the detectives could

12 get in touch with her. The fact that Petitioner was allowed to the leave the station and the state

13 without hindrance following the interview. Schuster, 2011 WL 680211, at *13–14.

14 The California Court of Appeal emphasized that “even after Schuster’s deception came to

15 light, the detectives remained polite and their tones of voice were conversational rather than

16 accusatory.” Schuster, 2011 WL 680211, at *13. The state court also found that “[n]one of the

17 detectives’ comments conveyed to Schuster that she was a suspect in a crime, although it was

18 one scenario they had to consider.” Id. at *14. Petitioner had argued before the California Court

19 of Appeal that the detectives did suggest Petitioner was a suspect when Weibert informed her,

20 “understand that if some foul play has befallen him, obviously one of the first places that people

21 always point the finger is at the estranged spouse.” (LD 5 at 36 (quoting 16 CT 4728)). Here,

22 Petitioner argues that “[b]ecause the state court of appeal failed to address this argument, its

23 decision is ‘contrary to’ the long line of Supreme Court precedent requiring courts to examine

24 the totality of circumstances of an interrogation to determine whether it was custodial. 28 U.S.C.

25 § 2254(d)(1).” (ECF No. 136 at 2).

26 In Stansbury v. California, the Supreme Court stated:

27 Even a clear statement from an officer that the person under interrogation is a

prime suspect is not, in itself, dispositive of the custody issue, for some suspects

28

21

1 are free to come and go until the police decide to make an arrest. The weight and

pertinence of any communications regarding the officer’s degree of suspicion will

2 depend upon the facts and circumstances of the particular case. In sum, an

officer’s views concerning the nature of an interrogation, or beliefs concerning the

3 potential culpability of the individual being questioned, may be one among many

factors that bear upon the assessment whether that individual was in custody, but

4 only if the officer’s views or beliefs were somehow manifested to the individual

under interrogation and would have affected how a reasonable person in that

5 position would perceive his or her freedom to leave.

6 511 U.S. at 325.

7 Although the Ninth Circuit has found it “somewhat troubling” when a state court has

8 failed to explicitly address the increasingly accusatory nature of a detective’s questioning, “the

9 omission does not render the court’s application of federal law unreasonable.” Stanley v. Schriro,

10 598 F.3d 612, 619 (9th Cir. 2010) (citing Oregon v. Mathiason, 429 U.S. 492, 494–95 (1977)

11 (per curiam) (holding that a suspect was not in custody despite being informed that he was a

12 suspect and confronted with fabricated evidence linking him to the crime)). Similarly, here, the

13 California Court of Appeal’s failure to explicitly address Petitioner’s argument that the

14 detectives did suggest she was a suspect does not necessarily render its application of federal law

15 unreasonable.

16 Petitioner also argues that the state court’s conclusion that “nothing in the detectives’

17 questions suggested they suspected Ms. Schuster of a crime amounts to an unreasonable

18 determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2).” (ECF No.

19 136 at 2). “A state court’s decision is based on unreasonable determination of the facts under

20 § 2254(d)(2) if the state court’s findings are ‘unsupported by sufficient evidence,’ if the

20

21 ‘process employed by the state court is defective,’ or ‘if no finding was made by the state court

22 at all.’” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox,

23

20

A different provision of AEDPA provides that “a determination of a factual issue made by a State court shall be

24

presumed to be correct.” 28 U.S.C. § 2254(e)(1). The Ninth Circuit’s “panel decisions appear to be in a state of

confusion as to whether § 2254(d)(2) or (e)(1), or both, applies to AEDPA review of state-court factual findings,”

25 Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir. 2014), and the Supreme Court has not addressed the relationship

between § 2254(d)(2) and (e)(1), Wood v. Allen, 558 U.S. 290, 300 (2010). However, the Court “need not address

26 the interaction between § 2254(d)(2) and (e)(1) when the petitioner’s claims fail to satisfy either provision.” Atwood

v. Ryan, 870 F.3d 1033, 1047 (9th Cir. 2017) (citing Murray, 745 F.3d at 1001). See Apelt v. Ryan, 878 F.3d 800,

27 837 n.23 (9th Cir. 2017) (“Indeed, it is difficult to imagine a case in which a court would find that a state court

decision was ‘an unreasonable determination of the facts,’ but that the petitioner had not rebutted the ‘presumption

28 of correctness by clear and convincing evidence.’”), cert. denied, 139 S. Ct. 2716 (2019).

22

1 366 F.3d 992, 999 (9th Cir. 2004)). “While ‘not impossible to meet,’ that is a ‘daunting

2 standard—one that will be satisfied in relatively few cases,’ especially because we must be

3 ‘particularly deferential to our state-court colleagues.’” Hernandez, 750 F.3d at 857 (quoting

4 Taylor, 366 F.3d at 1000).

5 Petitioner specifically directs the Court’s attention to Detective Weibert saying to

6 Petitioner, “understand that if some foul play has befallen him, obviously one of the first places

7 that people always point the finger is at the estranged spouse.” (ECF No. 136 at 2). The Court

8 finds it useful to view said language in the broader context of what was being said at that

9 particular point in the interview:

10 LK: Larissa, let me ask you this; are you the type of person that could have

anything to do with him missing?

11

LS: No. Not at all. No…I don’t…I couldn’t do…I can’t. I mean, I…we’ve had

12 our problems, and I dislike him and, you know, and we haven’t been able

to get along but I…I couldn’t do that to my son. I couldn’t do that.

13 That’s…

14 VW: And the reason that we ask is because understand that we have a lot of ...

15 LS: I know.

16 VW: …charges here…

17 LS: I know…I know.

18 VW: …I mean…we have a gamut of things that can…that could have occurred,

and that’s part of why we’re asking you a gamut of different questions.

19 And, we need to try and get to the bottom to find him for…

20 LS: Ok.

21 VW: …for his sake…for your son’s sake, for everyone here that’s involved’s

sake. I mean if something bad has happened to him, then we need to get

22 that done, so that your son can get some closure that way. If he’s gone

away on his own, we need to find him, so that he can come back. You

23 know, we need, or…or at least we need to get it closed because the worst

thing that can happen for your son is for this to be left hanging.

24

LS: I know.

25

VW: …you know the house and the divorce thing…if some foul play has

26 befallen him, if he’s taken his life, if he’s hurt himself and someone else is

hurt him, we need to at least get that answer for your son so your son

27 doesn’t sit there wondering why, because what’s gonna happen with your

son if there’s question left? He’s gonna think…there’s always gonna be

28 this question in the back of his mind that be was abandoned, and why was

23

1 he abandoned. Not that some other force took his father away, whoever or

whatever that was, and even if it was his father’s own hand…

2

LS: Yeah.

3

VW: …that it was…well maybe dad’s still out there somewhere and he doesn’t

4 want to see me. Why? What’s wrong with me?

5 LS: I understand.

6 VW: And that’s going to be baggage he’s gonna carry around for a long time.

So that’s why we really need to get to the bottom of it, and…

7

LS: Well, I agree with you. I don’t…I mean even for me. I mean I’m not the

8 important one here, but…

9 LK: Yeah. You don’t have to like somebody to care about them.

10 LS: Well, I know that. I know that, and you know. I mean, there were those

times…times when I just wanted to punch him, you know, but physically,

11 I just couldn’t…I mean, he’s a bigger man than me. I mean…I couldn’t…I

couldn’t…he’d probably take me down in a minute.

12

VW: And I…and I understand…and understand the feelings, because I had a

13 goofy spouse and we had a relationship that went awry, and so I

understand where you’re coming from.

14

LS: Yeah.

15

VW: So…so can understand (inaudible).

16

LS: I don’t think anybody that goes through a divorce at some point doesn’t

17 have some sort of…

18 VW: Say, boy I wish they were dead.

19 LS: Can you believe that? I actually…I actually said that to couple of my

employees once, and it was like, you know, now I’m saying oh my God,

20 you know if that’s the case, I mean…I mean, it’s not that…you’d want

them dead, it’s that you…it’s just kind of a reaction and ahm, so…any…I

21 know what you…

22 VW: …let me…and I have to ask this, ok, because as we said, we have to look

at all potential avenues here.

23

LS: I understand.

24

VW: And understand that if some foul play has befallen him, obviously one of

25 the first places that people always point the finger is at the estranged

spouse or something like that.

26

LS: Exactly.

27

VW: That doesn’t mean that anything necessarily has happened, or that we

28 necessarily believe that, but it’s…

24

1

LS: Right.

2

VW: …but it’s potential that we have to address and talking with you has

3 helped to clear up a lot of things. But there’s one thing that I just

can’t…can’t clarify, and I need to try and get something from you…if

4 you’re not being entirely honest with us about a conversation or something

like that, then you need to come forward with that now and let us know

5 and hear me out. You’re telling me that you rolled over and possibly

accidentally telephoned him in the middle of the night on the night that he

6 disappeared. If there was some conversation that you guys had…

7 LS: No.

8 VW: Let me finish please, let me finish please. If there was some conversation

that you guys had, and he said something to you ah…and it…or…or if,

9 you know, you heard something occur in the background you heard

something and you’re concerned about it, you need to let us know what

10 that was.

11 (16 CT 4727–29).

12 Standing alone, the statement “understand that if some foul play has befallen him,

13 obviously one of the first places that people always point the finger is at the estranged spouse”

14 suggests that the detective was accusing Petitioner of being a prime suspect. However, a review

15 of the statement in the context of the broader discussion shows that the detectives repeatedly

16 indicated to Petitioner “a gamut of things . . . could have occurred,” including running away, foul

17 play, suicide, self-injury, or infliction of injury by someone else. (16 CT 4727). The statement at

18 issue was made to explain why the detectives were asking Petitioner questions about her missing

19 estranged husband—because they “have to look at all potential avenues.” (16 CT 4728). But, the

20 detectives stressed, “[t]hat doesn’t mean that anything necessarily has happened, or that we

21 necessarily believe that . . .” (16 CT 4729).

22 There is no indication that the process employed by the California Court of Appeal was

23 defective. As set forth above, there is sufficient evidence to support the California Court of

24 Appeal’s finding that “[n]one of the detectives’ comments conveyed to Schuster that she was a

25 suspect in a crime, although it was one scenario they had to consider.” Schuster, 2011 WL

26 680211, at *14. Having reviewed both the transcript and video recording of Petitioner’s

27 interview, the Court finds that the state court’s factual determinations were not unreasonable

28 under § 2254(d)(2).

25

1 The state court’s determination that under these facts Petitioner was not “in custody” for

2 purposes of Miranda was not objectively unreasonable. The Miranda “custody test is general,”

3 and the “more general the rule, the more leeway courts have in reaching outcomes in case-by-

4 case determinations.” Alvarado, 541 U.S. at 665, 664. “[T]he state court delineated and weighed

5 factors comparable to those the Supreme Court has considered,” Stanley, 598 F.3d at 619, and

6 the determination was not “so lacking in justification that there was an error well understood and

7 comprehended in existing law beyond any possibility for fairminded disagreement,” Richter, 562

8 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief on her first claim, and it

9 should be denied.

10 B. Instructional Errors

11 In her second, fifth, and sixth claims for relief, Petitioner asserts that the trial court made

12 various instructional errors. (ECF No. 4 at 26, 33, 36). Respondent argues that the state court

13 reasonably denied relief on Petitioner’s jury-instruction-based claims. (ECF No. 130 at 28).

14 1. Legal Standard

15 “[T]he fact that an instruction was allegedly incorrect under state law is not a basis for

16 [federal] habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). A federal court’s inquiry

17 on habeas review is not whether a challenged jury instruction “is undesirable, erroneous, or even

18 ‘universally condemned,’ but [whether] it violated some right which was guaranteed to the

19 defendant by the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). “[N]ot

20 every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due

21 process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). The pertinent question is

22 “whether the ailing instruction by itself so infected the entire trial that the resulting conviction

23 violates due process.” Cupp, 414 U.S. at 147. “It is well established that the instruction ‘may not

24 be judged in artificial isolation,’ but must be considered in the context of the instructions as a

25 whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). This

26 standard also applies to omitted instructions, Murtishaw v. Woodford, 255 F.3d 926, 971 (9th

27 Cir. 2001), but the petitioner’s “burden is especially heavy because no erroneous instruction was

28 given . . . . An omission, or an incomplete instruction, is less likely to be prejudicial than a

26

1 misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

2 2. Accessory After the Fact

3 In her second claim for relief, Petitioner asserts that the trial court erred in refusing to

4 give a requested instruction that Petitioner’s acts would make her guilty of being an accessory

5 after the fact. (ECF No. 4 at 26). Respondent argues that the state court reasonably denied relief

6 on Petitioner’s jury-instruction-based claims. (ECF No. 130 at 28, 41–42).

7 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate

8 District, which denied the claim in a reasoned opinion. The California Supreme Court summarily

9 denied Petitioner’s petition for review. As federal courts review the last reasoned state court

10 opinion, the Court will “look through” the California Supreme Court’s summary denial and

11 examine the decision of the California Court of Appeal. See Wilson, 138 S. Ct at 1192.

12 In denying Petitioner’s accessory after the fact instruction claim, the California Court of

13 Appeal stated:

14 Schuster contends the trial court erred by refusing to give a requested pinpoint

instruction defining the uncharged crime of accessory. We conclude the

15 instruction properly was refused.

16 The Trial Court Proceedings

17 As previously described, Schuster denied killing Timothy, directing Fagone to kill

him, or having a hand in his death by, for instance, purchasing acid or the blue

18 barrel for the purpose of disposing of his remains. The gist of her testimony was

that she knew nothing about Timothy’s death until told about it by Fagone,

19 whereupon, rather than reporting the matter to police and running the risk of

ruining T.’s trip, she helped Fagone move the barrel containing the body from her

20 lab to her storage unit. She also made Fagone promise that he would take care of

moving it somewhere it could not be found.

21

Schuster subsequently requested that the trial court give a modified version of

22 CALCRIM No. 440 (accessories) as a pinpoint instruction. Schuster’s proposed

instruction read:

23

“Larissa Schuster has admitted to being an accessory after the fact. She

24 was not charged with being an accessory after the fact. To prove that the

defendant was guilty of this crime, the People would have had to prove

25 that:

26 “1. Another person, whom I will call the perpetrator, committed a felony;

27 “2. The defendant knew that the perpetrator had committed a felony or

that the perpetrator had been charged with or convicted of a felony;

28

27

1 “3. After the felony had been committed, the defendant either harbored,

concealed, or aided the perpetrator;

2

“AND

3

“4. When the defendant acted, she intended that the perpetrator avoid or

4 escape arrest, trial, conviction, or punishment.

5 “The prosecution has requested that you determine whether Larissa

Schuster was an aider and abettor. The prosecution must show that an

6 aider and abettor intended to facilitate or encourage the target offense

before or during its commission. If the defendant formed an intent to aid

7 after the crime was completed, then he or she may be liable as an

accessory after the fact. Factors relevant to determining whether a person

8 is an aider and abettor include: presence at the scene of the crime,

companionship, and conduct before or after the offense.”

9

The trial court denied the request, finding that accessory after the fact is not a

10 lesser included offense of the crime charged, and that courts are no longer

required or allowed to instruct on lesser related offenses. 21 The trial court

11 proposed, however, to modify CALCRIM No. 401 to make it clear that in order to

be guilty based on an aiding and abetting theory, a defendant must have harbored

12 the requisite intent before or during, but not after, the commission of the crime.22

13 Defense counsel stated that he was satisfied with the modification, but still

requested that a pinpoint instruction on accessory be given. Defense counsel

14 argued that even though accessory was not a lesser included offense, it was “very

much so a lesser-related offense that conforms significantly to the factual scenario

15 in this case,” and he requested that the instruction “be given simply so as to give

the jury an understanding of that particular offense as it relates to the testimony of

16 Ms. Schuster.” The trial court denied the request.

17 Analysis

18 “Every person who, after a felony has been committed, harbors, conceals or aids a

principal in such felony, with the intent that said principal may avoid or escape

19 from arrest, trial, conviction or punishment, having knowledge that said principal

has committed such felony or has been charged with such felony or convicted

20 thereof, is an accessory to such felony.” (§ 32.)

21 The crime of being an accessory is not a lesser included offense of murder.

(People v. Jennings (2010) 50 Cal.4th 616, 668.) Whether accessory is a lesser

22 related offense of murder depends, at least to a certain extent, on the

circumstances of each case. (See People v. Jones (1993) 14 Cal.App.4th 1252,

23 1257–1258.) We need not decide whether it was a lesser related offense here,

since, as Schuster acknowledges, “[a] defendant has no right to instructions on

24

21

The trial court also refused to give the unmodified version of CALCRIM No. 440, which would have set out the

25 elements of the crime of being an accessory to a felony in the same language as those elements were stated in

Schuster’s proposed instruction.

26 22

The trial court subsequently instructed the jury: “To prove that the defendant is guilty of a crime based on aiding

and abetting that crime, the People must prove that one, the perpetrator committed the crime, two, the defendant

27 knew that the perpetrator intended to commit the crime; three, before or during, but not after, the commission of the

crime the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant’s

28 words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime.”

28

1 lesser related offenses, even if he or she requests the instruction and it would have

been supported by substantial evidence, because California law does not permit a

2 court to instruct concerning an uncharged lesser related crime unless agreed to by

both parties. [Citations.]” (People v. Jennings, supra, at p. 668; accord, People v.

3 Yeoman (2003) 31 Cal.4th 93, 129; People v. Birks (1998) 19 Cal.4th 108, 112–

113, 136–137 (Birks).)

4

Schuster claims the trial court erred when it relied on Birks to deny the request for

5 an instruction defining the crime of accessory because she did not ask for

instructions that would permit the jury to convict her of violating section 32.

6 Rather, she says, she desired the instruction so that jurors would understand she

had admitted, in her testimony, having committed a crime the prosecutor elected

7 to withhold from jury consideration.

8 In light of defense counsel’s references to lesser included and lesser related

offenses, we are not convinced the trial court misinterpreted the basis for

9 Schuster’s request.23 If the trial court made the correct ruling, however, we will

uphold that ruling, regardless of the trial court’s reasoning. (People v. Smithey

10 (1999) 20 Cal.4th 936, 972.)

11 “Under appropriate circumstances, ‘a trial court may be required to give a

requested jury instruction that pinpoints a defense theory of the case by, among

12 other things, relating the reasonable doubt standard of proof to particular elements

of the crime charged. [Citations.] But a trial court need not give a pinpoint

13 instruction if it is argumentative [citation], merely duplicates other instructions

[citation], or is not supported by substantial evidence [citation].’ [Citation.]”

14 (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) The trial court is

required to instruct on the law applicable to the facts of the case; it should refuse

15 any instruction that invites the jury to draw inferences favorable to one party from

specified items of evidence. (People v. Mincey (1992) 2 Cal.4th 408, 437.)

16

We question whether it is proper for a trial court to tell a jury, as stated in the first

17 sentence of Schuster’s proposed instruction, that a defendant has admitted

committing a criminal offense, even if that offense was not charged. Such a

18 determination is more factual than legal and may involve credibility issues that

should be resolved by the trier of fact, not the trial court. We also question

19 whether the bringing or omission of particular charges is a proper subject for a

trial court’s instructions, as it implicates prosecutorial charging discretion that is

20 generally not supervised by the courts. (People v. Ceja (2010) 49 Cal.4th 1, 7; see

County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 61.) The last part

21 of the proposed instruction, which related the timing of the formation of intent to

liability as an aider and abettor versus an accessory, was rendered duplicative by

22 the trial court’s modification of CALCRIM No. 401. We thus conclude the trial

court did not err by refusing to give Schuster’s version. (See People v. Cash

23 (2002) 28 Cal.4th 703, 736.)

24 Schuster also contends the jury should have been informed that her act of helping

Fagone hide the body amounted to a crime. She claims this was important to her

25 legal theory that she was guilty of being an accessory, but not guilty of murder; a

pinpoint instruction defining the crime proscribed by section 32 would have

26

27 23

When arguing for a new trial, Schuster’s attorney described the defense theory as being that the evidence showed

Schuster was guilty of violating section 32, and he complained that the jury was not given the option of convicting

28 appellant of being an accessory.

29

1 helped jurors understand that the consciousness of guilt evidence resulted from

Schuster’s violation of section 32, but did not indicate she was guilty of murder.

2

Defense counsel never articulated this theory of the defense when arguing that the

3 trial court should give the requested instruction. Regardless, “[i]t has never been

the law that an accused is entitled to instructions on offenses for which [s]he is

4 not charged in order to urge the jury that [s]he could have been convicted of

something other than what is alleged.” (People v. Valentine (2006) 143

5 Cal.App.4th 1383, 1387.) Here, Schuster clearly was not precluded from arguing

that her conduct was criminal and that it explained the consciousness of guilt

6 evidence, but did not give rise to liability for the charged offense.21 (See People v.

Rundle (2008) 43 Cal.4th 76, 148, disapproved on another ground in People v.

7 Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) What mattered from her standpoint

was not what the admitted conduct might be called or the precise elements of the

8 crime of being an accessory, but rather that her conduct, occurring after the

charged offenses, explained her guilty actions and statements but did not

9 constitute aiding and abetting murder or make her liable for the charged offense.

Thus, such an instruction was not necessary for the jury’s understanding of the

10 applicable law or Schuster’s theory of the case, and it easily could have been

confusing where the jury properly was not given the option of returning a verdict

11 on the offense.24

12 Schuster, 2011 WL 680211, at *22–25 (footnotes in original).

13 In the petition, Petitioner clarifies that her request for the accessory after the fact

14 instruction was not because it was a lesser related offense, but because it was Petitioner’s legal

15 theory of defense—that Petitioner was not guilty of murder but was guilty of being an accessory

16 after the fact (a crime the prosecutor elected to withhold from jury consideration), which would

17 explain evidence suggesting Petitioner displayed consciousness of guilt. (ECF No. 4 at 26–28).

18 “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in

19 the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution

20 guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Crane

21 v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted) (quoting California v. Trombetta, 467

22 U.S. 479, 485 (1984)). Although the Supreme Court has stated that “[a]s a general proposition a

23 defendant is entitled to an instruction as to any recognized defense for which there exists

24 evidence sufficient for a reasonable jury to find in his favor,” Mathews v. United States, 485

25 U.S. 58, 63 (1988) (emphasis added), the Supreme Court subsequently noted that “the cases in

26 which we have invoked this principle dealt with the exclusion of evidence or the testimony of

27

24

For the same reasons, we would conclude there was no prejudice were we to find error. (See People v. Wharton

28 (1991) 53 Cal.3d 522, 571 & fn. 10.)

30

1 defense witnesses,” Gilmore v. Taylor, 508 U.S. 333, 343–44 (1993) (citations omitted). Gilmore

2 rejected the contention that the cases stood for the proposition “that the right to present a defense

3 includes the right to have the jury consider it, and that confusing instructions on state law which

4 prevent a jury from considering an affirmative defense therefore violate due process.” Id. at 344.

5 Here, the failure to instruct on being an accessory did not prevent Petitioner from

6 presenting her complete defense. Defense counsel argued that Petitioner’s conduct was criminal,

7 which explained evidence indicating consciousness of guilt, and constituted being an accessory

8 after the fact, but did not satisfy the elements of the offenses the prosecution elected to bring

9 against Petitioner. (66 RT 19521–23, 19532–33, 19558–59, 19562–63). The jury was presented

10 with evidence of Petitioner’s defense theory and was properly instructed regarding the first-

11 degree murder charge the prosecutor elected to bring against Petitioner. As noted by the

12 California Court of Appeal, an accessory instruction “was not necessary for the jury’s

13 understanding of the applicable law or Schuster’s theory of the case, and it easily could have

14 been confusing where the jury properly was not given the option of returning a verdict on” being

15 an accessory. Schuster, 2011 WL 680211, at *25.

16 Based on the foregoing, the Court finds that the state court’s rejection of this instructional

17 error claim was not contrary to, or an unreasonable application of, clearly established federal

18 law, nor was it based on an unreasonable determination of fact. The decision was not “so lacking

19 in justification that there was an error well understood and comprehended in existing law beyond

20 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is

21 not entitled to habeas relief for her second claim, and it should be denied.

22 3. Financial Gain Special Circumstance

23 In her fifth claim for relief, Petitioner asserts that the trial court erred in its instructions

24 regarding the financial gain special circumstance. (ECF No. 4 at 33). Respondent argues that the

25 state court reasonably denied relief on Petitioner’s jury-instruction-based claims. (ECF No. 130

26 at 28, 44–45).

27 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate

28 District, which denied the claim in a reasoned opinion. The California Supreme Court summarily

31

1 denied Petitioner’s petition for review. As federal courts review the last reasoned state court

2 opinion, the Court will “look through” the California Supreme Court’s summary denial and

3 examine the decision of the California Court of Appeal. See Wilson, 138 S. Ct at 1192.

4 In denying Petitioner’s financial gain special circumstance instruction claim, the

5 California Court of Appeal stated:

6 Schuster raises two claims in connection with the instructions on the financial

gain special circumstance. First, she contends the trial court committed error in

7 answering a question from the deliberating jury about the definition of that special

circumstance. Second, she argues the trial court violated her federal constitutional

8 rights by refusing her requested unanimity instruction. We reject both claims.

9 The Trial Court Proceedings

10 Pursuant to CALCRIM No. 720, the jury was instructed: “The defendant is

charged with the special circumstance of murder for financial gain. To prove that

11 this special circumstance is true, the People must prove that one, the defendant

intended to kill; and two, the killing was carried out for financial gain.” Jurors

12 also were told that the People had the burden of proving the special circumstance

beyond a reasonable doubt, and that in order to return a finding that the special

13 circumstance was or was not true, all 12 jurors had to agree.

14 During deliberations, the jury sent out a note stating it could not decide the special

circumstance and needed clarification, specifically, “Does it have to be the

15 primary reason or partial reason?” After input from counsel, and relying on

People v. Michaels (2002) 28 Cal.4th 486 (Michaels), the trial court proposed to

16 reread CALCRIM No. 720 and then add language telling jurors it was not

necessary that financial gain have been the only purpose, or even the primary

17 purpose, for the killing.

18 The prosecutor had no objection to the trial court’s proposed response. Defense

counsel, however, objected to the phrase “ ‘or even the primary purpose for the

19 killing.’ ” When asked if he had any authority that the objected-to phrase was not

a correct statement of the law, defense counsel admitted he did not, but argued

20 that all the jury needed to know was that there could be more than one purpose.

21 The trial court noted that it was required to answer the questions of the jury to the

extent possible, and that the jury specifically used the phrase “ ‘primary reason.’ ”

22 Defense counsel responded that the challenged phrase tended to suggest that any

type of purpose, no matter how weak, would support the special circumstance. He

23 argued that “it should be a real purpose, not just a possible or light-one that

doesn’t have much substance to it. In other words, when you talk about primary or

24 not primary, you suggest a weighing process.... [¶] In other words, ... if it’s not a

primary purpose but it’s a lesser purpose, it suggests that ... any circumstance

25 would be enough. And I don’t think that’s what the law requires. I think it has to

be a purpose that can be found beyond a reasonable doubt.”

26

Defense counsel then requested that jurors be instructed that they had to be

27 unanimous as to the facts or circumstances supporting the financial-gain special

circumstance. He noted that they had to determine if financial gain was a motive

28 in this case, and a lot of evidence had been presented that may or may not have

32

1 shown such a motive. The trial court denied the request, finding it similar to the

defense’s earlier request—also denied—that the jury be instructed to agree

2 unanimously whether Schuster was an aider and abettor or the actual perpetrator.

The trial court found no requirement in the law of juror unanimity in this

3 situation.

4 When the jury returned to the courtroom, the trial court stated that it was going to

read a few sentences from an instruction already given, and then add a paragraph

5 the trial court and counsel thought addressed the specific question asked. The trial

court then stated: “So the instruction was [CALCRIM No.] 720. It says, the

6 defendant is charged with a special circumstance of murder for financial gain. To

prove that this special circumstance is true, the People must prove that one, the

7 defendant intended to kill; and two, the killing was carried out for financial gain.

And here’s the addition: In order to find this special circumstance true, you must

8 unanimously find that the People have proven beyond a reasonable doubt that the

intentional killing was carried out for the purpose of obtaining financial gain.

9 However, it’s not necessary that financial gain have been the only purpose for the

killing or even the primary purpose for the killing.”

10

Analysis

11

Pursuant to section 190.2, subdivision (a)(1), a defendant convicted of first degree

12 murder is subject to the death penalty or life in prison without the possibility of

parole if “[t]he murder was intentional and carried out for financial gain.” In

13 Michaels, supra, 28 Cal.4th at page 519, the California Supreme Court held that

the financial gain special circumstance applies even if the gain was only a

14 secondary purpose.

15 Michaels in turn relied on People v. Noguera (1992) 4 Cal.4th 599, 635, in which

the state high court rejected a claim that the failure of the standard instruction to

16 require the jury to find that the financial gain motive was a dominant, substantial,

or significant motive for the murder violated the Eighth Amendment to the United

17 States Constitution. The trial court there reiterated that “ ‘[p]roof of actual

pecuniary benefit to the defendant from the victim’s death is neither necessary nor

18 sufficient to establish the financial-gain special circumstance,’ ” and instead

found “ ‘ “the relevant inquiry [to be] whether the defendant committed the

19 murder in the expectation that he would thereby obtain the desired financial gain.”

‘ [Citation.]” (Noguera, supra, at p. 636, quoting People v. Edelbacher (1989) 47

20 Cal.3d 983, 1025 (Edelbacher).25

21 Schuster says the phrase “or even the primary purpose for the killing” required a

lesser showing than that set out in Edelbacher because it incorrectly indicated that

22 any purpose, no matter how weak, would support the special circumstance. We

disagree. The California Supreme Court has made it clear that in order for the

23 financial-gain special circumstance to apply, “such gain need not be the sole or

main motive for the murder. [Citations.]” (People v. Carasi, supra, 44 Cal.4th at

24 pp. 1308–1309, italics added.) Indeed, in People v. Crew (2003) 31 Cal.4th 822,

851, the court stated: “It is not required that the murder be committed exclusively

25 or even primarily for financial gain. [Citations.]” (Italics added.) The mandate of

the special circumstance provision is simply “that anyone who intentionally

26 commits murder for purposes of financial gain should be eligible for the death

penalty or life imprisonment without possibility of parole .” (People v. Jackson

27 (1996) 13 Cal.4th 1164, 1229.)

28 25

Edelbacher was disapproved on another ground in People v. Loyd (2002) 27 Cal.4th 997, 1007, footnote 12.

33

1

The state Supreme Court has rejected the view that the financial-gain special

2 circumstance would apply where there is any possibility of a pecuniary effect

upon the defendant. (People v. Crew, supra, 31 Cal.4th at p. 852.) We conclude,

3 however, there is no reasonable likelihood the jury misunderstood and misapplied

the trial court’s answer to the question as permitting a true finding under such

4 circumstances. (See People v. Smithey, supra, 20 Cal .4th at p. 963.) The jury’s

request for clarification made it clear jurors were considering a reason that was at

5 least substantial enough to qualify as a “partial” reason for the murder; they did

not ask whether the mere possibility of a financial effect was sufficient, or

6 whether it was enough if financial gain provided a slight reason for the killing.

7 Schuster suggests that if the trial court had simply omitted the challenged clause

from the instruction, it would have been correct. The trial court’s response then

8 would have been correct as far as it went, but it would not have answered the

jury’s question—it would not have told them whether financial gain had to be the

9 primary reason for the killing. Under section 1138, “[t]he court has a primary

duty to help the jury understand the legal principles it is asked to apply.

10 [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)26 While “comments

diverging from the standard are often risky,” “a court must do more than

11 figuratively throw up its hands and tell the jury it cannot help.” (Ibid.) The trial

court here did not err by responding to the question as it did.

12

Nor did the trial court err by refusing to give a unanimity instruction. It is

13 apparent that Schuster sought to require unanimity with respect to the motive or

theory underlying the finding of financial gain—whether the anticipated gain

14 involved the business, the house, or something else. “A requirement of jury

unanimity typically applies to acts that could have been charged as separate

15 offenses. [Citations.]” (People v. Beardslee, supra, 53 Cal.3d at p. 92, italics

added.) “ ‘A unanimity instruction is required only if the jurors could otherwise

16 disagree which act a defendant committed and yet convict [her] of the crime

charged.’ [Citations.]” (Id. at p. 93.) Stated another way, “When an accusatory

17 pleading charges the defendant with a single criminal act, and the evidence

presented at trial tends to show more than one such unlawful act, either the

18 prosecution must elect the specific act relied upon to prove the charge to the jury,

or the court must instruct the jury that it must unanimously agree that the

19 defendant committed the same specific criminal act. [Citation.]” (People v.

Melhado (1998) 60 Cal.App.4th 1529, 1534, italics added.)

20

We are cited to no authority, and are aware of none, extending the concept of

21 unanimity to a defendant’s motive for committing a crime or the theory

underlying the offense. As cogently explained in People v. Russo (2001) 25

22 Cal.4th 1124, 1134–1135 (Russo), “The key to deciding whether to give the

unanimity instruction lies in considering its purpose. The jury must agree on a

23 ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the

defendant guilty of one crime and other jurors believed her guilty of another. But

24 unanimity as to exactly how the crime was committed is not required. Thus, the

unanimity instruction is appropriate ‘when conviction on a single count could be

25 based on two or more discrete criminal events,’ but not ‘where multiple theories

or acts may form the basis of a guilty verdict on one discrete criminal event.’

26 [Citation.] In deciding whether to give the instruction, the trial court must ask

whether (1) there is a risk the jury may divide on two discrete crimes and not

27

26

Section 1138 provides, in pertinent part: “After the jury have retired for deliberation, ... if they desire to be

28 informed on any point of law arising in the case, ... the information required must be given.”

34

1 agree on any particular crime, or (2) the evidence merely presents the possibility

the jury may divide, or be uncertain, as to the exact way the defendant is guilty of

2 a single discrete crime. In the first situation, but not the second, it should give the

unanimity instruction.”

3

The motive or theory underlying a crime, or, in this case, the financial-gain

4 special circumstance, is similar to the second situation described in Russo. Jurors

were instructed that they had to agree unanimously on whether Schuster

5 committed the murder for financial gain; the murder carried out for financial gain

was the single discrete criminal event. Jurors did not have to be unanimous with

6 respect to the exact theory supporting the conclusion that the purpose was

financial gain. (See, e.g., People v. Sapp (2003) 31 Cal.4th 240, 283–285 [no

7 unanimity instruction required where jurors could have relied on two different

theories in finding that defendant killed victim for financial gain; incidents were

8 intertwined and no juror would have believed one but disbelieved the other];

People v. Millwee (1998) 18 Cal.4th 96, 160–161 [unanimity as to theory under

9 which killing deemed culpable—premeditation or felony murder—is not

compelled as matter of state or federal law; trial court did not err by not telling

10 jurors to agree on reason for first degree murder verdict]; People v. Memro, supra,

11 Cal.4th at pp. 869–870 [no unanimity required as to particular manner in

11 which felony murder occurred]; People v.. Mickle (1991) 54 Cal.3d 140, 178

[where jury agreed that lewd act supporting special circumstance occurred under

12 one of two viable, closely connected theories, failure to unanimously select one

factual scenario immaterial; unanimity rule does not extend to minute details of

13 how single, agreed-upon act was committed]; see also People v. Nakahara (2003)

30 Cal.4th 705, 712–713 [nothing in Apprendi v. New Jersey (2000) 530 U.S. 466

14 requires unanimous jury verdict as to particular theory justifying finding of first

degree murder].)

15

16 Schuster, 2011 WL 680211, at *29–32 (footnotes in original).

17 a. Trial Court’s Response to Jury Question

18 Petitioner asserts that the trial court erred in answering the jury’s question by adding

19 language to CALCRIM No. 720 indicating that it was not necessary for financial gain to be

20 “even the primary purpose for the killing.” (ECF No. 4 at 33).

21 The pertinent question in federal habeas is “whether the ailing instruction by itself so

22 infected the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72

23 (quoting Cupp, 414 U.S. at 147). In reviewing an ambiguous instruction, the Court “inquire[s]

24 ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a

25 way’ that violates the Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494

26 U.S. 370, 380 (1990)). In making this determination, “the instruction ‘may not be judged in

27 artificial isolation,’ but must be considered in the context of the instructions as a whole and the

28 trial record.” Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147).

35

1 The challenged instruction was given to the jury as follows:

2 So the instruction was [CALCRIM No.] 720. It says, the defendant is charged

with a special circumstance of murder for financial gain. To prove that this special

3 circumstance is true, the People must prove that one, the defendant intended to

kill; and two, the killing was carried out for financial gain. And here’s the

4 addition: In order to find this special circumstance true, you must unanimously

find that the People have proven beyond a reasonable doubt that the intentional

5 killing was carried out for the purpose of obtaining financial gain. However, it’s

not necessary that financial gain have been the only purpose for the killing or

6 even the primary purpose for the killing.

7 (67 RT 19849–50). This instruction was given after the jury sent out a note stating it could not

8 decide the special circumstance and needed clarification, specifically, “Does it have to be the

9 primary reason or partial reason.” (17 CT 5048) (emphasis added). In light of the jury’s specific

10 question, it was not objectively unreasonable for the state court to conclude there was no

11 reasonable likelihood the jury misapplied the challenged instruction in a way that allowed them

12 to find the special circumstance true based on any possibility, no matter how weak, of financial

13 gain.

14 The state court properly considered the modified financial gain special circumstance

15 instruction “in the context of the instructions as a whole and the trial record,” Estelle, 502 U.S. at

16 72, and the Court finds that the state court’s rejection of this instructional error claim was not

17 contrary to, or an unreasonable application of, clearly established federal law, nor was it based

18 on an unreasonable determination of fact. The decision was not “so lacking in justification that

19 there was an error well understood and comprehended in existing law beyond any possibility for

20 fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to

21 habeas relief on this ground.

22 b. Trial Court’s Refusal of Unanimity Instruction

23 With respect to the financial gain special circumstance, Petitioner also asserts that the

24 trial court erred in refusing Petitioner’s request to instruct the jurors that they must unanimously

25 agree on the act that satisfied the financial gain special circumstance. (ECF No. 4 at 35). That is,

26 Petitioner apparently argues the jurors should have unanimously agreed on “the motive or theory

27 underlying the finding of financial gain—whether the anticipated gain involved the business, the

28 house, or something else.” Schuster, 2011 WL 680211, at *31.

36

1 “Submitting a multi-theory crime to the jury without requiring unanimity on any one

2 predicate theory is not a constitutional violation.” Evanchyk v. Stewart, 340 F.3d 933, 937 n.1

3 (9th Cir. 2003) (citing Schad v. Arizona, 501 U.S. 624, 644–45 (1991) (plurality opinion)). See

4 Schad, 501 U.S. at 631–32 (“We have never suggested that in returning general verdicts in such

5 cases the jurors should be required to agree upon a single means of commission . . . . In these

6 cases, as in litigation generally, different jurors may be persuaded by different pieces of

7 evidence, even when they agree upon the bottom line. Plainly there is no general requirement

8 that the jury reach agreement on the preliminary factual issues which underlie the

9 verdict.” (internal quotation marks and citation omitted)); Schad, 501 U.S. at 649–50 (Scalia, J.,

10 concurring) (“As the plurality observes, it has long been the general rule that when a single crime

11 can be committed in various ways, jurors need not agree upon the mode of commission. That

12 rule is not only constitutional, it is probably indispensable in a system that requires a unanimous

13 jury verdict to convict.” (citations omitted)).

14 Here, the trial court issued a general unanimity instruction, (67 RT 19828; 17 CT 5034),

15 and the jury was not required to unanimously agree on the preliminary factual issues which

16 underlie the verdict. Therefore, the Court finds that the state court’s rejection of the specific

17 unanimity instructional error claim was not contrary to, or an unreasonable application of, clearly

18 established federal law, nor was it based on an unreasonable determination of fact. The decision

19 was not “so lacking in justification that there was an error well understood and comprehended in

20 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

21 Accordingly, Petitioner is not entitled to habeas relief on this ground.

22 4. Reasonable Doubt Instruction

23 In her sixth claim for relief, Petitioner asserts that the instruction given to the jury in her

24 trial misstated the reasonable doubt standard of proof required for a criminal conviction. (ECF

25 No. 4 at 9, 36–38). Respondent argues that the state court reasonably denied relief on Petitioner’s

26 jury-instruction-based claims. (ECF No. 130 at 28, 45).

27 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate

28 District, which denied the claim in a reasoned opinion. The California Supreme Court summarily

37

1 denied Petitioner’s petition for review. As federal courts review the last reasoned state court

2 opinion, the Court will “look through” the California Supreme Court’s summary denial and

3 examine the decision of the California Court of Appeal. See Wilson, 138 S. Ct at 1192.

4 In denying Petitioner’s reasonable doubt instruction claim, the California Court of Appeal

5 stated:

6 The trial court instructed the jury with CALCRIM No. 220, as follows:

7 “The fact that a criminal charge has been filed against the defendant is not

evidence that its charge is true. You must not be biased against the

8 defendant just because she’s been arrested or charged with a crime or

brought to trial.

9

“A defendant in a criminal case is presumed to be innocent. This

10 presumption requires that the People prove the defendant guilty beyond a

reasonable doubt. Whenever I tell you that the People must prove

11 something, I mean they must prove it beyond a reasonable doubt. Proof

beyond a reasonable doubt is proof that leaves you with an abiding

12 conviction that the charge is true.

13 “The evidence need not eliminate all possible doubt, because everything in

life is open to some possible or imaginary doubt. In deciding whether the

14 People have proved their case beyond a reasonable doubt you must

impartially compare and consider all the evidence that was received

15 through the entire trial. Unless the evidence proves the defendant is guilty

beyond a reasonable doubt she’s entitled to an acquittal. And you must

16 find her not guilty.” (Italics added.)

17 Schuster contends the emphasized language directing jurors to “compare and

consider” the evidence undermined the presumption of innocence and lightened

18 the prosecution’s burden of proof by suggesting Schuster was required to produce

evidence to be compared. She argues the emphasized reference to an “abiding

19 conviction” further lightened the prosecution’s burden of proof by conveying the

idea of a determination that will last, but omitting the requisite concept of a

20 conviction based on weighty evidence.27

21 Both the United States and California Supreme Courts have rejected challenges to

the constitutionality of CALJIC No. 2.90, which is worded similarly to

22 CALCRIM No. 22028 (See, e.g., Victor v. Nebraska (1994) 511 U.S. 1, 16–17;

People v. Farley (2009) 46 Cal.4th 1053, 1122; People v. Whisenhunt, supra, 44

23 Cal.4th at p. 221.) We and numerous other courts specifically have rejected the

24 27

The People suggest Schuster has forfeited any challenge to the instruction because she requested it. We disagree,

because the issues raised implicate Schuster’s substantial rights. (§ 1259; see People v. Taylor (2010) 48 Cal.4th

25 574, 630, fn. 13; People v. Holmes (2007) 153 Cal.App.4th 539, 544; but see People v. Stone (2008) 160

Cal.App.4th 323, 331.)

26 28

CALJIC No. 2.90 defines reasonable doubt, in pertinent part, as “that state of the case which, after the entire

comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot

27 say they feel an abiding conviction of the truth of the charge.” Prior to 1994, the concluding phrase read, “an abiding

conviction to a moral certainty of the truth of the charge.” (See People v. Whisenhunt (2008) 44 Cal.4th 174, 221, fn.

28 13.)

38

1 argument that CALCRIM No. 220 suggests the defendant is required to produce

evidence, or the closely related claim that the instruction eliminates the doctrine

2 of reasonable doubt due to lack of evidence. (See, e.g., People v. Zavala (2008)

168 Cal.App.4th 772, 780–781; People v. Garelick (2008) 161 Cal.App.4th 1107,

3 1117–1119; People v. Stone, supra, 160 Cal.App.4th at pp. 331–332; People v.

Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Hernandez Rios (2007) 151

4 Cal.App.4th 1154, 1156–1157; cf. People v. Taylor, supra, 48 Cal.4th at p. 631 &

fn. 15 [rejecting claim CALJIC No. 2.90 failed to make clear defense had no

5 obligation to present or refute evidence].)

6 In Victor v. Nebraska, supra, 511 U.S. at pages 14–15, the United States Supreme

Court stated: “An instruction cast in terms of an abiding conviction as to guilt,

7 without reference to moral certainty, correctly states the government’s burden of

proof. [Citations.]” (Italics added.) Courts universally have rejected challenges to

8 CALCRIM No. 220’s use of the phrase “abiding conviction,” including that it

conflates the separate concepts of duration and weight. (People v. Stone, supra,

9 160 Cal.App.4th at pp. 332–334; see also People v. Zepeda (2008) 167

Cal.App.4th 25, 28–32; People v. Guerrero (2007) 155 Cal.App.4th 1264; 1268;

10 cf. People v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9 [suggesting modification

of CALJIC No. 2.90 to refer to “abiding conviction” without references to “moral

11 evidence” and “moral certainty”; People v. Light (1996) 44 Cal.App.4th 879,

884–889 [upholding postmodification version of CALJIC No. 2.90].)

12

We agree with the cases cited above and conclude there was no constitutional

13 infirmity in CALCRIM No. 220 as given at Schuster’s trial.29

14 Schuster, 2011 WL 680211, at *32–33 (footnotes in original).

15 “[T]he Due Process Clause protects the accused against conviction except upon proof

16 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

17 charged.” In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court has stated with respect to

18 jury instructions and the reasonable doubt standard:

19 [T]he Constitution neither prohibits trial courts from defining reasonable doubt

nor requires them to do so as a matter of course. Indeed, so long as the court

20 instructs the jury on the necessity that the defendant’s guilt be proved beyond a

reasonable doubt, the Constitution does not require that any particular form of

21 words be used in advising the jury of the government’s burden of proof. Rather,

“taken as a whole, the instructions [must] correctly conve[y] the concept of

22 reasonable doubt to the jury.”

23 Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citations omitted) (quoting Holland v. United States,

24 348 U.S. 121, 140 (1954)). “The constitutional question . . . therefore, is whether there is a

25 29

Schuster cites us to Stoltie v. California (C.D. Cal. 2007) 501 F.Supp.2d 1252, the majority of which was adopted

by the Ninth Circuit Court of Appeals in Stoltie v. Tilton (9th Cir. 2008) 538 F.3d 1296. Although the district court

26 believed that CALCRIM No. 220 was deficient for failing to convey to jurors that they must be subjectively certain

of a defendant’s guilt in order to convict (Stoltie v. California, supra, at p. 1261), the opinion does not assist

27 Schuster because the issue addressed was not the validity of the instruction itself, but whether an analogy made by

the trial judge in an attempt to explain reasonable doubt was prejudicially misleading when taken in the context of

28 the overall charge (id. at pp. 1254–1255, 1262, 1264).

39

1 reasonable likelihood that the jury understood the instructions to allow conviction based on proof

2 insufficient to meet the Winship standard.” Victor, 511 U.S. at 6.

3 Petitioner argues that the phrase “impartially compare” implied Petitioner was required to

4 produce evidence to be compared to that of the prosecution. Petitioner contends that this error

5 was exacerbated by the “abiding conviction that the charge is true” language. (ECF No. 4 at 37–

6 38). The Court finds that the phrase “impartially compare” does not denote comparison of

7 evidence presented by the prosecution against evidence presented by the defense. Rather, the

8 instruction directed impartial comparison of all the evidence presented at trial, including

9 comparison of evidence adduced solely during the case-in-chief, whether that be measuring

10 witness testimony against the physical or documentary evidence or evaluating the conflicting

11 testimony of multiple witnesses. Further, as noted by the California Court of Appeal, the

12 Supreme Court in Victor stated that “[a]n instruction cast in terms of an abiding conviction as to

13 guilt, without reference to moral certainty, correctly states the government’s burden of proof.”

14 511 U.S. at 14–15 (citing Hopt v. Utah, 120 U.S. 430, 439 (1887)).

15 Petitioner has failed to demonstrate a reasonable likelihood that the jury understood the

16 trial court’s instructions to allow conviction based on proof insufficient to satisfy the Winship

17 standard. Both the prosecutor and defense counsel repeatedly stated during closing argument that

18 the prosecution bore the burden of proving Petitioner committed the offense beyond a reasonable

19 doubt. (65 RT 19212, 19292, 19299–301, 19312; 66 RT 19502, 19559). Further, defense counsel

20 specifically emphasized that Petitioner does not have any obligation to produce evidence to be

21 compared to the prosecution’s evidence, stating: “Remember it’s their burden. The defense has

22 no burden. You’ll never hear that a defendant in a criminal action has to prove anything.” (66 RT

23 19501). “Whatever we present, the prosecution does not lessen their burden to prove every

24 element of their case beyond a reasonable doubt.” (66 RT 19520).

25 Based on the foregoing, the California Court of Appeal’s denial of the reasonable doubt

26 instructional error claim was not contrary to, or an unreasonable application of, clearly

27 established federal law, nor was it based on an unreasonable determination of fact. The decision

28 was not “so lacking in justification that there was an error well understood and comprehended in

40

1 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

2 Accordingly, Petitioner is not entitled to habeas relief on her sixth claim, and it should be denied.

3 C. Ineffective Assistance of Counsel

4 In her third claim for relief, Petitioner asserts ineffective assistance of trial counsel for

5 presenting evidence that Petitioner suffered from battered spouse syndrome (“BSS”) but then

6 failing to request an instruction that the jury could use that evidence to find Petitioner acted

7 under provocation. (ECF No. 4 at 28). Respondent argues that the state court reasonably denied

8 relief on this claim. (ECF No. 130 at 28, 42–44).

9 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate

10 District, which denied the claim in a reasoned opinion. The California Supreme Court summarily

11 denied Petitioner’s petition for review. As federal courts review the last reasoned state court

12 opinion, the Court will “look through” the California Supreme Court’s summary denial and

13 examine the decision of the California Court of Appeal. See Wilson, 138 S. Ct at 1192.

14 In denying Petitioner’s ineffective assistance of counsel claim, the California Court of

15 Appeal stated:

16 Schuster contends her trial attorney provided constitutionally deficient

representation when he presented evidence that Schuster suffered from BSS, but

17 then failed to request an instruction telling jurors how they could use that

evidence to find Schuster acted under provocation if they found her responsible

18 for killing Timothy. We conclude the record fails to establish that defense counsel

lacked a reasonable tactical purpose for the omission or that Schuster was

19 prejudiced thereby.

20 The Trial Court Proceedings

Dr. Estner testified that BSS has to do with physical abuse, but can have

21 emotional factors as well. It involves a spouse who will not make it possible to

have a comfortable relationship, but also will not allow the relationship to end, or,

22 from the other perspective, someone who is trapped in a bad relationship, but also

is prevented from escaping it.

23

In Estner’s opinion, Schuster manifested this type of syndrome in the context of

24 this case. Even when Estner saw her in the fall of 2003, Schuster was so obsessed

with the relationship that it was as if Timothy were still alive. She continuously

25 provided Estner with information concerning things that seemed like petty flaws

of Timothy, but which had caused her great emotional distress. Estner believed

26 Schuster’s mental state when he saw her then was somewhat representative of her

mental state previously.

27

In Estner’s opinion, Schuster was driven and assertive and expected that from

28 others, including Timothy. Her expectations were not being met, as Timothy had

41

1 more of a nurturing and passive personality—in her view, passive aggressive.

Schuster physically and emotionally lost capacity for the marital relationship; she

2 was starting to become medically and mentally ill with depression, cardiac

arrhythmia, and broad hair loss. Her exhibiting hatred toward Timothy made

3 sense from a psychiatric point of view; someone who is assertive and aggressive

and has those expectations of others is particularly upset by someone he or she

4 perceives as passive. If someone is angry at another person and that person does

not give an outlet for the anger, the first person just gets madder and madder.

5

Estner viewed Schuster’s statements that she wished Timothy were dead as a type

6 of “passive homicidality.” Passive homicidality is no indication of an intent to kill

the other person. Schuster’s passive wishes that Timothy was dead were a way of

7 escaping a very bad relationship, and so were consistent with the application of

emotional BSS to Schuster's case.

8

During the jury instruction conference, the trial court confirmed that Schuster was

9 requesting an instruction on voluntary manslaughter based on heat of passion, and

that the prosecutor did not object in light of the evidence presented through Estner

10 and others. The trial court further confirmed that the defense was withdrawing its

requests for CALCRIM Nos. 850 and 851, since Estner’s testimony was not

11 intended to explain why a witness did not come forward or to offer some kind of a

defense to Schuster’s having murdered her husband, at least in the context of her

12 being the perpetrator.30

13 During his argument to the jury, the prosecutor remarked that he initially was

unsure of the point of Estner’s testimony, since this was not a case in which a

14 mental defense, such as not guilty by reason of insanity, was being offered. He

now thought that the point of the testimony was to explain why Schuster was so

15 angry. Defense counsel did not mention Estner’s testimony in his closing

argument. He did tell jurors, however: “But homicide, voluntary manslaughter,

16 second-degree murder, first-degree murder, she’s not guilty of any of them. And

please don’t compromise and say well, you know, she didn’t like her husband.

17 And she said these mean things.”

18 Pursuant to CALCRIM No. 570, the trial court subsequently instructed:

19

20

30

As requested, CALCRIM No. 850 read: “You have heard testimony from an expert, Miles Estner, of battered

21 women’s syndrome ______ <insert other description used by expert for syndrome>). [¶] Dr. Estner’s testimony

about (battered women’s syndrome/intimate partner battering/______ <insert other description used by expert for

22 syndrome>) is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may

consider this evidence only in deciding whether or not ‘s______ <insert name of alleged victim of abuse> conduct

23 was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of

(his/her) testimony.”

CALCRIM No. 851 read: “You have heard testimony from Dr. Miles Estner regarding the effect of

24

battered women’s syndrome/intimate partner battering/______ <insert other description used by expert for

syndrome>). [¶] Dr. Estner’s testimony about (battered women’s syndrome/intimate partner battering/______

25 <insert other description used by expert for syndrome>) is not evidence that the defendant committed the crime

charged against her. [¶] You may consider this evidence only in deciding whether the defendant actually believed

26 that (he/she) needed to defend (himself/herself) against an immediate threat of great bodily injury or death, and

whether that belief was reasonable or unreasonable. [¶] When deciding whether the defendant’s belief was

27 reasonable or unreasonable, consider all the circumstances as they were known by or appeared to the defendant.

Also consider what conduct would appear to be necessary to a reasonable person in a similar situation with similar

28 knowledge.”

42

1 “A killing that would otherwise be murder is reduced to voluntary

manslaughter if the defendant killed someone because of a sudden quarrel

2 or in the heat of passion. The defendant killed someone because of a

sudden quarrel or in the heat of passion if one, the defendant was

3 provoked; two, as a result of the provocation the defendant acted rashly

and under the influence of intense emotion that obscured her reasoning or

4 judgment; and three, the provocation would have caused a person of

average disposition to act rashly and without due deliberation, that is from

5 passion rather than from judgment.

6 “Heat of passion does not require anger, rage or any specific emotion. It

can be any violent or intense emotion that causes a person to act without

7 due deliberation and reflection. In order for heat of passion to reduce a

murder to voluntary manslaughter the defendant must have acted under the

8 direct and immediate influence of provocation as I have defined it. While

no specific type of provocation is required, slight or remote provocation is

9 not sufficient. Sufficient provocation may occur over a short or long

period of time. It's not enough that the defendant simply was provoked.

10 The defendant is not allowed to set up her own standard of conduct. You

must decide whether the defendant was provoked and whether the

11 provocation ... was sufficient. In deciding whether the provocation was

sufficient, consider whether a person of average disposition would have

12 been provoked and how such a person would react in the same situation

knowing the same facts.

13

“If enough time passed between the provocation and the killing for a

14 person of average disposition to cool off and regain her clear reasoning

and judgment, then the killing is not reduced to voluntary manslaughter on

15 this basis.

16 “The People have the burden of proving beyond a reasonable doubt that

the defendant did not kill as a result of a sudden quarrel or in the heat of

17 passion. If the People have not met this burden, then you must find the

defendant not guilty of murder.”

18

As previously described, jurors convicted Schuster of first degree murder.

19

Analysis

20

Schuster contends that, because nothing in CALCRIM No. 570 suggested that

21 evidence of BSS could be used to find provocation, defense counsel was remiss in

not requesting a modified version of CALCRIM No. 851 in order to inform the

22 jury of that legal principle.31

23 We have not found any authority allowing evidence of BSS to be admitted on the

issue of provocation (as opposed to self-defense), or discussing how such

24 evidence relates to voluntary manslaughter based on sudden quarrel or heat of

25 31

Schuster suggests: “You have heard testimony from Dr. Stephen Estner regarding the effect of battered spouse

syndrome. [¶] Dr. Estner’s testimony about battered spouse syndrome is not evidence that the defendant committed

26 the crime charged against her. [¶] You may consider this evidence only in deciding whether the defendant acted with

provocation if you find that she is legally responsible for the death of Timothy Schuster. [¶] I have defined

27 provocation for you in another instruction. If you find the defendant killed Timothy Schuster while acting under the

influence of legal provocation, you should find her not guilty of murder but rather guilty of voluntary

28 manslaughter.”

43

1 passion. We will assume it is admissible for that purpose, however. (See

Evid.Code, § 1107; People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 98–

2 101.) Although we express no opinion concerning the propriety of the language of

the instruction Schuster now proposes, we also will assume that a modified

3 version of CALCRIM No. 851 would be given upon proper request. (But see

People v. Steele (2002) 27 Cal.4th 1230, 1252–1253 [for voluntary manslaughter,

4 both provocation and heat of passion must be affirmatively shown; because

circumstances giving rise to heat of passion are viewed objectively, defendant’s

5 “‘extraordinary character and environmental deficiencies,’” including

“psychological dysfunction due to traumatic experiences,” are irrelevant to the

6 inquiry].)

7 The burden of proving ineffective assistance of counsel is on the defendant.

(People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction

8 upon the ground of ineffective assistance of counsel under either the state or

federal Constitution, a defendant must establish (1) that defense counsel’s

9 performance fell below an objective standard of reasonableness, i.e., that

counsel’s performance did not meet the standard to be expected of a reasonably

10 competent attorney, and (2) that there is a reasonable probability that defendant

would have obtained a more favorable result absent counsel’s shortcomings.

11 [Citations.] ‘A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25

12 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668,

687–694.)

13

“If the record contains no explanation for the challenged behavior, an appellate

14 court will reject the claim of ineffective assistance ‘unless counsel was asked for

an explanation and failed to provide one, or unless there simply could be no

15 satisfactory explanation.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349,

367.) In other words, “in assessing a Sixth Amendment attack on trial counsel’s

16 adequacy mounted on direct appeal, competency is presumed unless the record

affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]”

17 (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)

18 Here, the record fails affirmatively to disclose the lack of a rational tactical

purpose for the challenged omission. (See People v. Ray (1996) 13 Cal.4th 313,

19 349.) The clear theory of the defense was that Schuster was not guilty of anything

but being an accessory. That defense counsel wanted the jury given the option of

20 finding voluntary manslaughter based on heat of passion does not mean he

reasonably could not place his emphasis, both in terms of what to argue and what

21 instructions to request, on obtaining a complete acquittal. Under the

circumstances, defense counsel reasonably could have decided that CALCRIM

22 No. 570 was adequate, and that more extensive instructions on the subject would

simply detract from the defense’s push for a not guilty verdict without adding

23 much to the jury’s understanding of the applicable legal principles.

24 Furthermore, the record affirmatively establishes that omission of an instruction

on BSS did not prejudice Schuster. The California Supreme Court has stated that

25 “ ‘[h]eat of passion arises when “at the time of the killing, the reason of the

accused was obscured or disturbed by passion to such an extent as would cause

26 the ordinarily reasonable person of average disposition to act rashly and without

deliberation and reflection, and from such passion rather than from judgment.” ‘

27 [Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 59 (lead opn. of Baxter, J.).) By

contrast, that court has defined “ ‘deliberate’ ” as “ ‘ “formed or arrived at or

28 determined upon as a result of careful thought and weighing of considerations for

44

1 and against the proposed course of action” ’ ” and “ ‘premeditated’ “ as “ ‘

“considered beforehand.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 862–863.)

2 “First degree willful, deliberate, and premeditated murder ‘involves a cold,

calculated judgment,’ ” even if arrived at quickly (People v. Carasi (2008) 44

3 Cal.4th 1263, 1306); thus, the state of mind for that offense “ ‘is manifestly

inconsistent with having acted under the heat of passion—even if that state of

4 mind was achieved after a considerable period of provocatory conduct.’

[Citation.]” (Ibid.)

5

Under the instructions given here, jurors could return their verdict of first degree

6 murder only if they found Schuster acted “willfully, deliberately and with

premeditation.” They were told, in pertinent part, that Schuster acted “willfully if

7 she intended to kill”; “deliberately if she carefully weighed the considerations for

and against her choice, and knowing the consequences, decided to kill”; and “with

8 premeditation if she decided to kill before committing the act that caused the

death.” They expressly were told that “[a] decision to kill made rashly,

9 impulsively or without careful consideration is not deliberate and premeditated.”

10 The jury was given a comprehensive instruction on provocation and heat of

passion, and nothing in that instruction precluded a consideration of BSS with

11 respect to the issue. (See People v. Wharton, supra, 53 Cal.3d at p. 572.) In light

of jurors’ rejection of the notion that Schuster’s reason was obscured or disturbed

12 by passion, the giving of a pinpoint instruction relating BSS to provocation

clearly would not have made any difference in the verdict. (See People v.

13 Manriquez (2005) 37 Cal.4th 547, 586; People v. Wharton, supra, at p. 572.) This

is especially true where, as here, the evidence of premeditation and deliberation

14 was overwhelming.32

15 Schuster, 2011 WL 680211, at *25–29 (footnotes in original).

16 1. Strickland Legal Standard

17 The clearly established federal law governing ineffective assistance of counsel claims is

18 Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging

19 ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at

20 687. First, the petitioner must show that counsel’s performance was deficient, requiring a

21 showing that counsel made errors so serious that he or she was not functioning as the “counsel”

22 32

In People v. Berry (1976) 18 Cal.3d 509, the California Supreme Court found that the trial court’s error in

23 refusing to instruct on voluntary manslaughter based on sudden quarrel or heat of passion was

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