# Williams v. Vasquez

> District Court, E.D. California · April 1, 1993 · 817 F. Supp. 1443

URL: https://www.frixlaw.com/law-library/cases/1459402

## Case

- **Full name:** Keith Daniel WILLIAMS, Petitioner, v. Daniel VASQUEZ, Warden; And the Attorney General for the State of California, Respondents
- **Court:** District Court, E.D. California
- **Decided:** April 1, 1993
- **Citations:** 817 F. Supp. 1443; 1993 WL 57540
- **Precedential status:** Published
- **Opinion:** Opinion by Coyle
- **Judges:** Coyle
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1459402

## Opinion text

DEATH PENALTY CASE
ORDER DENYING AMENDED PETITION FOR A WRIT OF HABEAS CORPUS
COYLE, Chief Judge.
I. Introduction
Petitioner, Keith Daniel Williams, filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Petitioner challenges his state court conviction on three counts of first degree murder with special circumstances, and his death sentence.
1
Petitioner sets forth nineteen claims of alleged federal constitutional error which he contends require a reversal of his guilt, sanity, and/or penalty phase verdicts.
Petitioner requested an evidentiary hearing on Claims A, B, C, E, F, G, H, and I. The court granted and conducted an eviden-tiary hearing on Claim A.
2
After careful review of each claim presented in the amended petition and all supporting documentation, including the entire state court record, all papers filed by the parties, and the evidence presented at the evidentia-ry hearing, the court finds that no claim submitted by Petitioner warrants federal ha-beas relief. Accordingly, the amended petition for a writ of habeas corpus is denied as set forth herein.
II. Facts
3
This case involves the shooting deaths of Lourdes Meza (Meza), Miguel Vargas (M. Vargas), and Salvador Vargas (S. Vargas) by Petitioner. The events leading up to the killings began on Friday, October 6, 1978, when Petitioner met Meza and M. Vargas at a yard sale at the Galt home of Robert Tyson (Tyson) and Karen Tyson (K. Tyson).
At the yard sale, Petitioner, having noticed and admired M. Vargas’ car, expressed a desire to purchase it. Petitioner subsequently obtained M. Vargas’ permission to test drive the car. After the test drive, Petitioner reiterated his interest in buying the car.
*1453
The sale, however, was not consummated that day.
While subsequently informing the Tysons of his intent to purchase the vehicle, Petitioner commented that he had discovered the automobile registration in the glove box during his test drive. He surmised that it would be easy to obtain possession of the car and registration by loading Meza and M. Vargas in the trunk and dumping them in a field.
On Saturday, October 7, 1978, M. Vargas returned to the Tysons’ home to consummate the sale of the car. Petitioner passed a stolen check in the amount of $1,500 to M. Vargas and took possession of the car. The parties agreed that M. Vargas would retain the registration until Petitioner’s ■ check cleared the following Monday.
Later on October 7th, M. Vargas returned to the Tysons’ home displaying a “wad” of bills and offering to purchase a gun from Petitioner. Petitioner declined to- sell the gun at that time. However, the parties discussed the possibility of a subsequent meeting at M. Vargas’ home regarding-the sale of the gun.
The next day, Sunday, October 8, 1978, Petitioner and Tyson, armed with handguns, drove from Galt to the Merced farmhouse in which M. Vargas lived with Meza and his cousin S. Vargas. Petitioner’s intent in trav-elling to Merced was to commit robbery; he had also discussed killing M. Vargas and Meza.
Upon arriving at the farmhouse, Petitioner and Tyson discovered that guests were visiting their intended victims. Consequently, Petitioner and Tyson temporarily postponed their felonious plans, left their guns in the car, and joined the others in the house. They found M. Vargas and Meza downstairs entertaining three visitors. S. Vargas had already retired upstairs to rest.
After the guests departed, M. Vargas re-expressed his interest in buying Petitioner’s gun. Petitioner and Tyson then exited the house and retrieved their guns from the car. Upon re-entering the house Petitioner held his gun on M. Vargas. M. Vargas thought Petitioner was joking, and Tyson reinforced this misperception by pulling away Petitioner’s arm. Tyson later justified this interruption of Petitioner’s actions, informing Petitioner that his own gun was not loaded and reminding him that S. Vargas was sleeping upstairs.
Shortly after this incident, Petitioner invited M. Vargas to join Tyson and him for a drink. When M. Vargas declined, Tyson, suggested that Petitioner and he buy some beer and bring it back to the farmhouse. Petitioner and Tyson then left the farmhouse' on the pretext of buying beer; they used this time to discuss strategy.
When Petitioner and Tyson subsequently re-entered the farmhouse they found M. Vargas downstairs and S. Vargas ,and Meza upstairs. Petitioner put the plan in action, running to the second floor and ordering Tyson to bring M. Vargas upstairs and take Meza downstairs and shoot her. ■
After Tyson and Meza went downstairs, Petitioner shot both men in the back of the head, killing them. Tyson, however, did not shoot Meza. Instead, he and Petitioner took her from the farmhouse and drove toward Sonora. En- route, Petitioner had intercourse with Meza.
Upon reaching an unpopulated area, Petitioner and Meza. exited the car. They walked to a field a short distance away where Petitioner shot Meza four times and left. Petitioner and Tyson then returned to'Galt; Tyson remained in Galt, while Petitioner headed for Southern California.
The next'day, Monday, October 9, 1978, a relative of the slain men discovered their bodies lying in a pool of blood. Authorities did not locate Petitioner’s, third victim until Friday, October 13, 1978, when Tyson surrendered and led them to Meza’s naked body in a secluded, area near Sonora.
The state charged' Petitioner with 'three counts of first degree murder
4
with firearm enhancements and ten special circumstances,
*1454
including multiple murder, robbery, kidnapping, and rape.
After a three and one-half week trial, the jury found Petitioner guilty of murdering M. Vargas, S. Vargas, and Meza in the first degree.
5
The jury also determined that Petitioner was sane during the commission of the offenses, and recommended the death sentence.
The California Supreme Court affirmed Petitioner’s conviction and sentence and denied his first habeas corpus petition on March 24, 1988.
Williams,
44 Cal.3d 883 , 245 Cal.Rptr. 336 , 751 P.2d 395 . The court summarily denied his second habeas petition on February 17, 1989. Petitioner’s conviction became final on October 11, 1988, upon the Supreme 'Court’s denial of his petition for a writ of certiorari.
III. Discussion
A. Claim A
Petitioner alleges that prosecutorial misconduct during the guilt phase of his trial resulted in the violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
6
Specifically, Petitioner claims that the prosecutor, Larry Howard (L. Howard),
7
violated his right to due process by failing to correct Tyson’s testimony, which he knew to be per-jurious, and that the guilt and penalty phase verdicts must, therefore, be reversed.
At Petitioner’s trial, Tyson testified as follows:
Q [L. Howard]: [D]id I or anyone from the district attorney’s office make any promises with respect to any charges that would be filed against you?
A: No. I was told that whatever was ■ filed against me would be up to the grand jury.
Q: Have any promises been made to you as far as you’re concerned for your testimony here today?
A: None.
RT Vol. V 1004:18-25 (emphasis added). Tyson further testified on cross-examination:
Q [Roland Howard]: At the time you appeared in Superior Court to be sentenced for the three murders that you were convicted of, didn’t you have discussions with the district attorney’s office regarding what disposition of your case in terms of sentence would be made in terms of their recommendation of sentence at the time? A: No.
Q: In exchange for your cooperation.
A: No.
RT Vol. V 1009:16-24.
The court conducted an- evidentiary hearing on Claim A, limited to the issue of Tyson’s alleged perjury at Petitioner’s trial and the prosecutor’s knowing use thereof.
8
*1455
A claim of prosecutorial misconduct must be demonstrated by a preponderance of the evidence.
United States v. Lord,
711 F.2d 887 , 891
&
n. 3 (9th Cir.1988). Petitioner has not satisfied this standard.
1. The Asserted Parole Deal
Petitioner contends that the first alleged deal consisted of the prosecution’s promise that it would not oppose Tyson’s parole if he testified at Petitioner’s trial. This deal was allegedly consummated at the Merced County Court Building on March 22, 1979, just prior to Tyson’s testimony in Petitioner’s case. Although Tyson apparently first alleged the existence of this deal at his October 2, 1986, parole consideration hearing, Petitioner learned of this deal on October 28,1988, when his present counsel, David Nickerson, and his investigator, Russell Stet-' ler, interviewed Tyson in prison. During that interview, Tyson “was asked if he had made any deals or agreements with the prosecution in exchange for his testimony at WILLIAMS’ trial. Tyson said he had.” 2PHC Exh. D Stetler Deck ¶ 5. The investigator relayed Tyson’s account of that deal as follows:
9
[a]fter his own conviction of an indeterminate sentence, Tyson was contacted by Merced detectives, including Ron Hauser, and the prosecuting attorney, Larry Howard. Mr. Howard told Tyson, “We can make sure you rot in prison.” District Attorney Howard then explained that if Tyson agreed to testify against WILLIAMS, the Merced County District Attorney’s Office would not oppose Tyson’s release when he became eligible for parole. Tyson was assured that if he testified against WILLIAMS the District Attorney would “make sure the [Parole] Board knew” about his cooperation. Tyson agreed to testify against Williams.
Id.
Petitioner argues that Tyson’s testimony, as set forth in the October 2, 1986, Request for Investigation, and as given at the October 27, 1987, parole consideration hearing and the evidentiary hearing, demonstrate the existence of this deal. Petitioner further argues that L. Howard’s deposition testimony supports a finding that this deal existed. The court is not persuaded.
First, Tyson conceded at the evidentiary hearing that the prosecutor made no promises in exchange for his testimony at Petitioner’s trial:
A: His [L. Howard’s] words to my best recollection was that if you do—“If you don’t [testify], we can keep you in for a long time, but if you do, we can endorse you to get a parole date.” He says, “I can’t promise you nothing right now.”
Q [Robert Jibson]: Isn’t it true, Mr. Tyson, that in fact the district attorney, Mr. Howard, during this brief meeting that you’ve referred to specifically told you that he could not make you and was not making you any promises at that time?
A: He said he couldn’t right then.
Q: He said he was not making a promise; is that correct?
A: He said he couldn’t, yes.
*1456
Q: The answer is yes?
A: (Witness nods head.)
EH 8:22-9:1; 12:21-13:7.
Second, the Board of Prison Terms (Board), conducted an investigation designed to determine “what type of ‘deal’ was arranged for Mr. Tyson’s cooperation in the Keith Daniel Williams case,” PEH Exh. 2 1, and concluded that the alleged parole deal did not exist.
Id.
at 3.
Finally, the prosecutor has consistently denied making a promise to Tyson in exchange for his testimony. Ans.Exh. I L. Howard Deck ¶ 2; PEH Exh. 3 6:17-7:19; 20:8-14. Instead, the prosecutor describes the following interaction with Tyson regarding the alleged parole deal:
I did not threaten Mr. Tyson that the District Attorney’s Office or law enforcement agencies could make sure he would “rot in prison” in order to obtain Mr. Tyson’s testimony at Mr. Williams’ trial, nor did I promise Mr. Tyson that if he testified against Mr. Williams the District Attorney’s Office would not oppose Mr. Tyson’s early release on parole when Mr. Tyson became eligible for parole.
I did advise Mr. Tyson that his testimony at Mr. Williams’ trial would be a matter of public record, and as such he could bring the record of his testimony for the People to the attention of the Parole Board for their consideration and also to the attention of correctional authorities for their consideration for protective custody because of that testimony.
Ans. Exh. I L. Howard Decl. ¶¶3-4.
Thus, Petitioner has failed to set forth sufficient evidence demonstrating the existence of a parole deal. Neither party to the alleged deal, nor the Board has acknowledged the existence of this deal. Accordingly, the court finds that Tyson’s testimony was not perjurious, and denies relief as to this aspect of Claim A.
2. The Asserted Death Penalty Deal
Just prior to the evidentiary hearing, Petitioner asserted the existence of an additional deal. Tyson and L. Howard allegedly entered into this deal on October 13, 1978, the day Tyson surrendered and assisted the authorities in their search for Meza’s body. Petitioner alleges that during the search, L. Howard promised Tyson that the District Attorney’s Office would not seek the death penalty against him if Tyson agreed to testify at Petitioner’s trial.
Petitioner discovered the existence of this alleged deal when his counsel deposed L. Howard in preparation for the evidentiary hearing.
10
Petitioner asserts that the Board’s Report of Investigation, the testimony of Deputy District Attorney Gordon Spencer (Spencer) at Tyson’s October 27, 1987, parole consideration hearing, and the deposition testimony of L. Howard all support the existence of this deal. The court disagrees.
Tyson has never claimed that this deal existed. In fact, Tyson specifically rejected the e?dstence of this deal at his October 27, 1987, parole consideration hearing when he testified, “[u]h, there was no promise before I went to trial I, I made none because he [Petitioner] was not even in custody when the grand jury indicted me.” PEH Exh. 1 79:18-21.
The prosecutor also denied making this promise to Tyson in exchange for his testimony:
Q [David Nickerson]: There wasn’t a deal made prior to Tyson’s trial that, for instance, for his testimony against Williams he would get — he would plead to X offense and get X years?
A: No.
Q: There was no such deal like that.
A: No.
Q: Was one offered, do you remember?
A: No.
Q: None was offered.
A: That’s right.
*1457
PEH Exh. 3 19:3-13. According to L. Howard, the following conversation transpired on the occasion in question:
Q [Robert Jibson]: ... what was said if anything, for example, by you, first of all, to Mr. Tyson with regard to the death penalty?
A: The only thing that I recall telling Tyson was that I told him that he was— asked him, really, if he was willing to testify. And he was very blunt. He said, “Sure. I’ll do anything.” And I said, “Is what you have told the investigators the truth?” And he said, “Yes.” And I said, “Do you understand that we have to do some investigating and check out what you’re saying to us? But if what you’re saying is corroborated by what we find out, then we’ll not seek the death penalty.”
Q: ... under the 1977 death penalty law intent to kill, in fact, premeditation and deliberation were legally required to prove special circumstances, correct?
A: That’s true.
Q: ... you couldn’t have sought the death penalty against him and you were telling him as such if the story he told you was true; is that right?
A: Yes.
Id.
at 9:10-10:8; 11:6-9; 11:14-18. .
Thus, this alleged deal did not exist. The prosecutor did not make a promise to Tyson, he merely explained the law with regard to Tyson’s actions on the assumption that Tyson’s rendition of the events would be corroborated by the ensuing investigation.
11
Accordingly, because Tyson’s statement that the prosecution made no promises to him in exchange for his testimony was not perjurious, relief as to Claim A is denied.
B. Claim B
Petitioner alleges that his trial counsel violated his Sixth, Eighth, and Fourteenth Amendment rights by failing to adequately investigate facts in support of his diminished capacity and insanity defenses, and in mitigation of penalty. Petitioner further alleges that counsel erred by failing to move to suppress or object to Petitioner’s alleged
pre-Miranda
remarks to arresting officers in Arizona, to the testimony of Tyson and K. Tyson, to the court’s
M’Naghten
insanity instruction, to the introduction of evidence regarding Petitioner’s prior criminal record, to the appointment of psychiatrists for the dual purpose of determining Petitioner’s sanity and his competency to stand trial, by reading the psychiatrists’ reports directly into the record during the sanity phase, and by failing to request an instruction limiting the scope of the jury’s consideration of said psychiatric reports.
In
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated the test used to determine whether a petitioner received ineffective assistance of counsel:
[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made' errors so serious that counsel was not functioning as the “counsel” guaranteed the. defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it
*1458
cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id.
at 687 , 104 S.Ct. at 2064 .
A court may dispose of an ineffectiveness claim if either prong of the test is not met.
Id.
at 697 , 104 S.Ct. at 2069 .
1. Failure to Investigate
a. Guilt Phase — Diminished Capacity Defense
Petitioner alleges ineffective assistance of counsel at the guilt phase because his trial counsel had'no knowledge of Cal.Pénal Code § 987.9,
12
and because he failed to adequately investigate facts in support of a diminished capacity defense. Petitioner contends it is reasonably probable that, but for these alleged errors, the jury would have returned a verdict of not true on the special circumstances, of a lesser degree of homicide, or of not guilty. The court wholeheartedly disagrees.
A reviewing court must consider the totality of the evidence when making a determination of prejudice.
Strickland,
466 U.S. at 695 , 104 S.Ct. at 2068 . The effect of the alleged errors on the factual findings may vary. As the Supreme Court has determined:
[s]ome of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have a pervasive effect ... and some will have an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.
Id.
Despite Petitioner’s assertion that he suffered prejudice due to counsel’s alleged failure to investigate his diminished capacity defense,
13
the record overwhelmingly establishes the contrary. For example, although Petitioner testified that he had ingested a significant amount of drugs and alcohol on the day of the murders,
14
and that his memo
*1459
ry of the killings was intermittent, RT Vol. VI 1323:17-19, these self-serving statements fundamentally differ from the wealth of details Petitioner provided in his taped confession six weeks after the murders,
15
his trial testimony more than five months after the murders,
16
the details set forth in the testi
*1460
mony of Tyson and K. Tyson
17
, and the expert psychiatric opinion of Dr. Max Bran-nan.
18
Thus, clear and overwhelming evidence established that Petitioner was lucid,
*1461
not intoxicated, and not suffering from a diminished capacity at the time he committed the crimes. These factual findings were unaffected by counsel’s alleged failure to investigate the diminished capacity defense. Furthermore, it is the court’s determination that such findings remain unaffected notwithstanding the mental profile currently presented by Petitioner.
19
It is not reasonably probable that, but for the alleged errors, the jury would have reached a different verdict. Accordingly, relief is denied as to this portion of Claim B.
b. Sanity Phase — Insanity Defense
Petitioner alleges ineffective assistance of counsel at the sanity phase of his trial because his attorney failed to adequately investigate facts in support of his not guilty by reason of insanity plea. Counsel presented no sanity phase witnesses. Instead, Petitioner’s attorney simply read the reports of the two court-appointed psychiatrists and the results of Petitioner’s EEG into the record. Both psychiatrists concluded that Petitioner
*1462
was sane. The results of the EEG were normal.
The record, does not support Petitioner’s supposition that, but for counsel’s alleged error, it is reasonably probable the jury would have found him not guilty by reason of insanity. A criminal defendant has the burden of proving insanity by a preponderance of the evidence. Cal.Evid.Code §§ 115, 522. Petitioner has presented no -evidence demonstrating that he could have met this burden. Consequently, it cannot be said that he suffered prejudice due to counsel’s failure to investigate an insanity defense. Accordingly, this argument fails.
c. Penalty Phase — Mitigating Evidence
Petitioner alleges that his counsel rendered ineffective assistance at the penalty phase of his trial by failing to investigate and present facts in mitigation of the death penalty. Petitioner contends' that counsel failed to discuss the penalty phase with him, and to present family members and friends to testify on Petitioner’s behalf. Petitioner alleges that prejudice resulted from counsel’s foregoing errors because certain available mitigating evidence was not presented to the jury, namely Petitioner’s: (1) previous psychiatric treatment, including a voluntary admission to Clairemont Hospital
(see supra
note 13); (2) untreated hyperactivity as a child; (3) illegitimate birth; ' (4) poor childhood homelife, including an alcoholic mother and a mentally and physically abusive stepfather; and (5) failure to complete high school. Petitioner further contends that his mother, Lucille Smith, his step-sisters, Christine Smith and Kirby Smith Touvell, his daughter, Celeste, his step-son, Edward, and his friends Mary Begley, and Jean and Ron Torrey, would have testified favorably as to his character and personal history, and pleaded for his life.
The court finds that Petitioner suffered no prejudice as a result of counsel’s alleged failure to investigate mitigating evidence. Petitioner argues that certain mitigating evidence was not presented to the jury. However, the jury was exposed to much of the evidence which he complains was omitted due to counsel’s error.. For example, although Petitioner complains that evidence regarding his short-term voluntary admission to Claire-mont Hospital for psychiatric care was not before the jury, he ignores the fact that the jury was aware of a voluntary, three-month admission to the Scripps-Howard Institute for psychiatric care. RT Vol. VI 1356:8-19; RT Vol, VII 1522:10-13; 1525:2-5; 1534:11-14. Furthermore, the jury had evidence that Petitioner was illegitimate, RT Vol. VII 1523:6; 1532:22, had an unhappy childhood, including an abusive step-father and an alcoholic mother,
id.
at 1523:11; 1523:19; 1524:14-15; 1526:17-18; 1532:27-1533:2; 1533:10-11, ran away from home,
id.
at 1524:14-15; 1533:27-28, did not finish school,
id.
at 1523:15-18; 1533:7-12, suffered head injuries as a youth, RT Vol. VI 1172:13-25; RT Vol. VII 1534:8-10, abused drugs and alcohol from a very young age, RT Vol. VI 1173:1-1175:26; 1177:8-23; 1181:7-1188:18; 1190:5-15; 1192:26-1196:8; .1213:24-1214:2; RT Vol. VII 1524:2-9; 1535:1-4, had been treated for epileptic seizures, • RT Vol. VI 1171:16-1172:8; 1180:3-7; 1356:19-22; RT Vol. VII 1522:10-16; 1525:14-22; 1534:15-21, and had suffered blackouts. RT Vol. VI 1356:23-27; RT Vol. VII 1525:6-8.
As sympathetic as are these mitigating factors and those few mentioned by Petitioner but not heard by the jury, they are simply overwhelmed by the aggravating factors that exist in this case.
20
Undoubtedly, Petitioner’s commission of multiple murders during the course of a felony, his prior criminal activity involving the threat, use, or attempted use of force or violence, and Dr. Bran-nan’s testimony that Petitioner was a sociopath and suffered no remorse, RT Vol. VI 1350:3-18, echoed so loudly in the minds of the jurors as to render them nearly deaf to the minuscule rustling of any mitigating evidence. Thus, it is not reasonably probable that the evidence presented by Petitioner to which the jury was not exposed would have
*1463
affected the jury’s consideration of the aggravating and mitigating circumstances sufficient to lead to a verdict other than death. Accordingly, this argument fails.
2. Petitioner’s Confessions
The record indicates that Petitioner made two taped confessions, one to the arresting Arizona deputies at 4:00 a.m. on November 24, 1978, prior to the arrival of the California law enforcement officers, RT Vol. V 1119:5-8; ROSC Exh. 2;
Williams,
44 Cal.3d at 920 , 245 Cal.Rptr. 336 , 751 P.2d 395 , and a second one to the California officers at approximately 11:00 p.m. on the same day. CT Vol. 1 162,188; RT Vol. V 1105:13-24; Trial Exh. 39.
See infra
note 26. The court admitted only the latter tape into evidence.
Petitioner contends that his counsel was ineffective at the guilt and penalty phases because he failed to move to suppress statements made following his arrest.
21
Petitioner asserts that because the state court record is silent as to whether the arresting Arizona officers
Mirandized
Petitioner prior to his initial interrogation and confession, a waiver of
Miranda
rights cannot be assumed and, pursuant to
Westover v. United States,
384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the subsequent interrogation by California officers is tainted regardless of any amendatory
Miranda,
warning.
Petitioner’s contention is without merit. The transcript of his first confession and the tape recording of the second confession clearly demonstrate that Petitioner was warned of, and waived, his
Miranda
rights.
See also
CT Vol. I 1164; RT Vol. V 1106:8-26;
Williams,
44 Cal.3d at 920 , 245 Cal.Rptr. 336 , 751 P.2d 395 . Moreover, even if Petitioner had not been advised of his federal constitutional rights prior to the first confession, such an error has no impact on the validity of the second, properly
Mirandized,
confession.
Westover
is not to the contrary.
22
Accordingly, because Petitioner’s trial counsel committed no error by failing to file a formal motion to suppress Petitioner’s statement on
Miranda
grounds, this argument fails.
3. The Tysons’ Testimony
Tyson and K. Tyson testified against Petitioner at his trial. Petitioner now claims his trial counsel’s failure to move to suppress the Tysons’ testimony constitutes ineffective assistance at the guilt and penalty phases of his trial. Petitioner contends that the Tysons’ testimony was “procured by unlawful police conduct and thus involuntary.” Pet. 44:21-22. Specifically, Petitioner asserts that officers conducted a nonconsensual, warrantless search of the Tysons’ home, and that their threats to unlawfully arrest K. Tyson and take away her kids caused Tyson to surrender.
Factual determinations made by the state court are entitled to a presumption of correctness. 28 U.S.C. § 2254 (d). ■ The factual determinations made by the California Supreme Court simply do not support Petitioner’s assertions of an illegal search or of threats made to K. Tyson. As that court found:
Karen telephoned a Stockton police officer from a telephone booth on Thursday, October 12, told the officer that she was with Tyson, and had talked him into surrendering on Friday. The affidavit in support of the complaint recites that Officers Harris and Hauser met with Karen at the Tyson home where she said she wanted to tell them everything.
There is no support in this document or in Karen’s testimony for defendant’s claim that the officers’ entry was nonconsensual, that a search of the home was conducted at
*1464
this time, or that if such search was undertaken it was without Karen’s consent.
Tyson testified that when he met secretly with Karen prior to surrendering she told him that police officers had searched the house and had said that she could be arrested and prosecuted for aiding, abetting, being an accessory after the fact and for receiving stolen property. She told him that these officers, Harris and Hauser, had promised protection for her and her children if he surrendered. Again, nothing in this testimony supports the assertion that a search was conducted without a warrant or consent, that Karen was threatened, or that either her cooperation or her testimony was involuntary ...
16
...
17
Williams,
44 Cal.3d at 919-20 & nn. 16-17, 245 Cal.Rptr. 336 , 751 P.2d 395 .
The
Williams
court further noted that evidence supplied by Respondent in response to this claim refuted Petitioner’s allegations:
[in] an excerpt from the reporter’s transcript of the trial of Tyson ... Tyson confirmed that he had decided to give himself up and contacted Karen who said that she did not want ■ to run. He therefore instructed her to get in touch with a detective he had met in the sheriffs office in Stockton.
Id.
at 921 , 245 Cal.Rptr. 336 , 751 P.2d 395 .
See also
ROSC Exh. 3 526:15-527:19.
Accordingly, as there existed no factual basis for a motion to suppress the Tysons’ testimony, Petitioner’s trial counsel was not remiss in failing to make a futile motion.
23
4. The
M’Naghten
Instruction
Petitioner asserts that his counsel’s failure to object to the trial court’s
M’Naghten
instruction constituted ineffective assistance of counsel at the sanity phase of the trial. This claim is without merit. As discussed
infra
§ III(J), although the trial court erred by including this instruction, such error did not violate due process. Moreover, as discussed
supra
§ 111(B)(1)(b), sufficient evidence of Petitioner’s insanity is lacking. Consequently, it cannot be said that, but for the counsel’s failure to object to this instruction, the jury would have found Petitioner insane.
5. Petitioner’s Prior Criminal Record
Petitioner contends that counsel’s failure to move to exclude or to object to the admission of evidence regarding his prior criminal record constituted ineffective assistance of counsel at the guilt and penalty phases of his trial. Petitioner’s trial counsel elicited testimony from Petitioner regarding his prior convictions for grand theft, assault with a deadly weapon, and transportation of a stolen vehicle across state lines. RT Vol. VI 1188:22-1189:25. In addition, the prosecutor elicited testimony regarding an uncharged escape. RT Vol. VI 1217:25-26.
Petitioner’s trial counsel believed that Petitioner’s prior convictions were admissible to impeach his credibility. Accordingly, he “decided to bring out those convictions on direct examination so as to limit their potential impact on the jury.” PX Exh. C R. Howard Decl. ¶ 18. Trial counsel “álso believed that all of WILLIAMS’ prior convictions were relevant to the diminished capacity defense in that each occurred during or following a period of drug or alcohol abuse.”
Id.
at 6:2-4. This statement is in keeping with the Settled Statement signed by Petitioner’s ■ counsel, the prosecutor, and the trial judge, which reveals that “[a] Beagle[
24
] objection
*1465
was not made, nor was the motion filed because of the trial strategy on the part of Defendant’s counsel.” SS 2:27-3:1.
Petitioner now argues that, had trial counsel moved to bar admission of evidence of his prior convictions and the uncharged escape, it is reasonably likely that such a motion would have been granted because “[u]nder applicable California standards, Defendant’s prior convictions were remote and irrelevant to any of the factual issues in dispute at trial [and] ... were highly prejudicial to Petitioner’s defense.” Pet. 49:17-24.
The failure of Petitioner’s trial counsel to move to suppress or to object to the admission of those prior convictions which involved an element of dishonesty was not error. California law provided for the admission of such evidence to impeach a felon-witness. Federal law is in accord. Fed.R.Evid. 609(a)(2).
Furthermore, with regard to those prior convictions which do not involve an element of dishonesty, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”
Strickland,
466 U.S. at 689 , 104 S.Ct. at 2066 . Petitioner has failed to demonstrate that counsel’s strategy in introducing said convictions was not sound. As noted, counsel set forth Petitioner’s criminal background to demonstrate that mental illness, defect or disease, or drug intoxication reduced Petitioner’s capacity to harbor the specific mental elements of the charged offenses. Given the difficult factual circumstances with which counsel was confronted, the court finds this strategy reasonable and counsel’s performance adequate under the Constitution.
Even if the court were to find counsel’s performance constitutionally inadequate, Petitioner was not prejudiced thereby. Petitioner testified to killing his three victims.
25
Furthermore, the prosecution played the audio tape of Petitioner’s confession for the
*1466
jury.
26
Thus, the jury heard overwhelming evidence of the fact and manner of the three murders. The nature of Petitioner’s prior criminal record simply pales in comparison to the egregious facts surrounding this triple-murder. As a result, it simply is not reasonably probable that, but for counsel’s alleged errors, the result of the guilt or penalty phases would have been different.
6. Dual Purpose of Psychiatrists’ Appointment
Petitioner argues that counsel’s failure to move or object to the appointment of psychiatrists for the dual purpose of determining Petitioner’s competency and sanity constituted ineffective assistance of counsel because it precipitated the introduction and admission of statements made during the competency evaluation which were excludable.
Incriminating statements made during a court-ordered competency examination are subject to exclusion.
Estelle v. Smith,
451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981).
See also People v. Arcega,
32 Cal.3d 504, 521-22 , 186 Cal.Rptr. 94 , 651 P.2d 338 (1982);
Tarantino v. Superior Court,
48 Cal. App.3d 465, 469-470 , 122 Cal.Rptr. 61 (1975). On the other hand, incriminating statements made during a voluntary psychiatric examination held for the purpose of establishing a diminished capacity or insanity defense are not compelled within the meaning of the Fifth Amendment.
Petitioner’s argument that counsel failed to render effective assistance for failing to object to the bases for the appointment of the psychiatrists is without merit. First, although the trial court checked every box on the appointment form, CT Vol. I 194; RT Vol. I 13:14, Petitioner’s competency to stand trial was never seriously in issue.
Williams,
44 Cal.3d at 933 , 245 Cal.Rptr. 336 , 751 P.2d 395 .
See also
ROSC Exh. 1 4:14-17. This is evidenced by,
inter alia,
the fact that proceedings pursuant to Cal.Penal Code §§ 1368-1369 were not invoked. Consequently, counsel’s failure to object to the “dual” appointment was not error.
Second, assuming,
arguendo,
that error occurred, no prejudice resulted therefrom. Petitioner identifies no portion of the record where information regarding competency, but not pertaining to diminished capacity or insanity, was admitted. In fact, Petitioner points to no competency examination statements that were introduced into evidence despite being excludable. Consequently, it is not reasonably probable that, but for counsel’s alleged error, the jury would have reached a different result at any phase of the trial. Accordingly, this argument fails.
7. Psychiatric Reports; Limiting Instruction
Petitioner alleges ineffective assistance due to his counsel’s reading of the unredacted psychiatrists’ reports at the sanity phase. He further alleges error in the penalty phase resulting from counsel’s failure to request a limiting instruction to the effect that inadmissible and potentially inflammatory statements made by Petitioner and includ
*1467
ed in the psychiatric reports were to be considered only for establishing the bases of the psychiatrists’ opinions and not for the truth of the matter asserted.
Petitioner challenges his attorney’s introduction of the following statements of the psychiatrists:
‘He said that if he had his way he would call off this whole bunch of crap. He said he thinks this whole trip is a bunch of shit. He said he would just like to get it over with and take what is coming to him.’
‘He does not think jail will do him any good, but he is not saying he wants to go to a hospital. He said jail is not hard on him but out there is hard on him.’ -
‘He said he does not understand what is going on out there.’
‘He has been in institutions off and on with some regularity for more than half of his lifetime, since he was 13 years of age....’
‘He sums it up by telling me that, one, he rejects authority and always will. Two, he does not go for the rehab bullshit. Three, he goes by the same code of ethics whether he is inside or outside of jail. Four, he is very prejudiced against Mexicans _’
‘... he ... ’ could commit the same offense again toward others or himself, in fact he says this himself.’
Pet. 41:10-26. Petitioner also challenges the psychiatrists’ following statements:
‘He said he was in jail because he attacked a drunk and cut him up.’
‘He said that as a juvenile he was arrested for, one, being a runaway; two, grand theft auto; three, burglary; four, assault with a deadly weapon.’
‘He said as an adult he had been arrested for, one, assault with a deadly weapon; two, grand theft auto; three, armed robbery; four, parole violation; five, he was arrested about twelve times,' he thinks_’
‘He said he would blow up and jump on two dudes ... ’
‘Once before, I’d been drinking all day and I cut a junkie up. In the joint, I stayed mad the same way. I’m pretty anti-social, I guess.’
T think it was something that was building up in me. Prior to that, I had almost killed three people in an armed robbery. The night before, I had almost killed my old lady. I was just pretty crazy.’
‘I’ve attacked other people, assaults, it’s been the same every time. I don’t think •I’m crazy, but something’s not right when you just shoot three people for the fuck of it because you’re pissed off. I’ve jumped on my stepdad. I’ve jumped on a lot of people with the intent to hurt them....’
‘I’d blow it a lot. I’ve got a past history of a lot of violence, blowing up, bad temper.’
Pet. 50:25-51:26.
The court finds that it is not reasonably probable that, but for counsel’s performance, the jury would have reached a different sanity phase verdict. As stated
'supra
§ 111(B)(1)(b), Petitioner has presented no evidence demonstrating that he could have carried the burden of proving insanity. Consequently, he suffered no prejudice in the sanity phase due to counsel’s alleged errors.
Similarly, Petitioner suffered no prejudice at the penalty phase. Guilt phase evidence
27
enabled the jury to construct a clear profile of Petitioner. This profile was simply echoed by the specific statements that Petitioner now challenges. In other words, the challenged statements, though perhaps factually new to some extent, were substantively familiar to the jury and therefore cumulative of the guilt phase evidence.
28
The
*1468
substantive reiteration of this evidence was not prejudicial because it is not reasonably probable that, but for counsel’s alleged errors, the jury would have reached a different penalty phase verdict. This argument therefore fails.
Accordingly, the court denies relief as to all aspects of Claim B.
C. Claim C
Petitioner contends that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because he was denied a competent psychiatrist and a competent psychiatric examination to aid in the evaluation, preparation, and presentation of his mental state defenses advanced at trial. Specifically, Petitioner asserts a due process violation because his court-appointed psychiatrists were allegedly incompetent as evidenced by their lack of familiarity with his drug and alcohol intoxication and their subsequent rendering of unhelpful opinions, and that their incompetence deprived him of the psychiatric assistance mandated by
Ake v. Oklahoma,
470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985).
29
In
Ake ,
the Supreme Court determined that:
when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense.
Id.
at 83 , 105 S.Ct. at 1096 . The Court also recognized that psychiatry is not an exact science and that “psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, and on cure and treatment.”
Id.
at 81 , 105 S.Ct. at 1095 .
Although the
Ake
Court indicated that a defendant is entitled to a “competent psychiatrist,” it did not set forth a standard for determining the level of competence mandated by the Constitution. The Ninth Circuit has recently provided guidance on this issue.
In
Harris v. Vasquez,
949 F.2d 1497 (9th Cir.1990),
cert. denied,
— U.S. -, 112 S.Ct. 1275 , 117 L.Ed.2d 501 (1992), the petitioner argued “that he was denied access to a qualified psychiatrist who ‘conducts professionally competent examinations of the defendant and who on this basis provides professionally competent assistance.’”
Id.
at 1516 (quoting Appellant’s Brief at 15). The petitioner in
Harris
specifically argued that such psychiatric assistance was required by Ake’s due process holding.
Id.
The Ninth Circuit disagreed. In concluding that no
Ake
violation occurred, the
Harris
court adopted the reasoning of the Seventh Circuit in
Silagy v. Peters,
905 F.2d 986 (7th Cir.1990),
cert. denied,
498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991):
*1469
Harris,
949 F.2d at 1517-18 (emphasis added by Ninth Circuit).
*1468
we would be reluctant to open up this type of
Ake
claim to a battle of the experts in a “competence” review. Every aspect of a criminal case which involves the testimony of experts could conceivably be subject to such a review — a never ending process_
A conclusion to the contrary would require this court and other federal courts to engage in a form of “psychiatric medical malpractice” review as part-and-parcel of its collateral review of state court judgments. The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist’s diagnosis.
We do not believe this was the intent of the Court in
Ake
when it held that indigent defendants who raise a defense of insanity are entitled to psychiatric assistance in the preparation of their defense.
*1469
The Ninth Circuit also determined that
“Ake
does not guarantee access to a psychiatrist ‘who will reach only biased or favorable conclusions.’ ”
Id.
at 1516 (quoting
Granviel v. Lynaugh,
881 F.2d 185, 192 (5th Cir.1989),
cert. denied,
495 U.S. 963 , 110 S.Ct. 2577 , 109 L.Ed.2d 758 (1990)).
In accordance with
Harris ,
this court refuses to engage in a battle of psychiatric experts and “place federal courts in a psycho-legal quagmire resulting in the total abuse of the habeas process.”
Id.
at 1518 . Petitioner entered a plea of not guilty by reason of insanity and the Merced County. Superior Court appointed two psychiatrists, Drs. Brannan and Lloyd, to examine' him. Thus, Petitioner had access to two psychiatrists prior to his trial.
Both psychiatrists interviewed Petitioner and reviewed pertinent materials. RT Vol. VI 1328:18-20; 1329:1-17; RT Vol. VII 1521:20-21; 1530:11-13; 1530:18-22. Further, Petitioner provided both doctors with,
inter alia,
his history of drug use, head injuries, blackouts and prior psychiatric illnesses.
See, e.g.,
RT Vol. VI 1356:8-1357:5; RT Vol. VII 1522:10-23; 1524:2-9; 1524:27-1525:8; 1525:12-22; 1531:1-28; 1534:8-1535:4.
At no time has Petitioner attacked the credentials of either doctor. In fact, Petitioner utilized the services of both doctors; he offered Dr. Brannan’s testimony at the guilt phase and read the reports of both doctors into the record at the sanity phase.
Thus, because Petitioner had access to, and.received, the assistance of two psychiatrists, no
Ake
due process violation occurred. Relief as to this claim is therefore denied.
D. Claim D
Petitioner alleges that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendments rights by admitting evidence of the theft of Terry Judd’s (Judd) gun and tools,
30
and the robbery and subsequent arson of a camper,
31
both of which were uncharged crimes. Additionally, Petitioner alleges that the trial court violated his constitutional rights by utilizing an impermissibly vague statute, Cal.'Penal Code § 190.3(b), at the penalty phase. Finally, Petitioner contends that the trial court violated his constitutional rights at the penalty phase by arbitrarily depriving him of a state criminal procedure.
1. Admission of Uncharged Crimes Evidence
The Supreme Court has repeatedly stated that “federal habeas corpus relief does not lie for errors of state law.”
Lewis v. Jeffers,
497 U.S. 764, 780 , 110 S.Ct. 3092, 3102 , 111 L.Ed.2d 606 (1990). “A habeas petitioner who challenges a state court’s admission into evidence of prior acts of misconduct is not entitled to habeas corpus relief unless the state court’s admission of this evidence violated petitioner’s federal due process right to a fair trial under the Constitution.”
Gordon v. Duran,
895 F.2d 610, 613 (9th Cir.1990). Consequently, to obtain federal habeas relief Petitioner must demonstrate that the state law error “rendered the trial so ‘arbitrary and fundamentally unfair’ that it violated federal due process.”
Pennywell v. Rushen,
705 F.2d 355, 357 (9th Cir. 1983) (quoting
Powell v. Spalding,
679 F.2d 163, 166 (9th Cir.1982)).
a. The Judd Theft
As noted, the first uncharged offense involved the theft of a gun and tools from Judd. The jury learned about this uncharged crime from the prosecutor’s opening and closing statements, RT Vol. Ill 454:10-455:5; 455:18-21; RT Vol. VII 1449:2-7; 23-27; 1450:4-8, and from the testimony of Judd, RT Vol. Ill 487:21-26; 489:9-21; 490:10-22; 491 22-24', K. Tyson, RT Vol. IV 736:12-26, Tyson, RT Vol. V 895:^10; 897:4-7; 899:5-7; 900:9-901:11; 902:7-12, and Peti
*1470
tioner. RT Vol. VI 1220:5-1221:28; 1224:13-17; 1224:25-1225:4; 1226:28-1227:6.
Petitioner’s commission of this offense was not a hotly contested issue upon which the jury was required to deliberate. In fact, this issue was not disputed; Petitioner readily acknowledged his participation in this uncharged crime and admitted that his actions were wrong, RT Vol. VI 1220:5-12; 1221:9-15; 1224:13-17, 1224:24-28, thereby diminishing the effect of the admission of this evidence.
However, assuming,
arguendo,
that the trial court improperly admitted evidence of this comparatively minor uncharged crime, Petitioner has failed to demonstrate that its introduction violated due process. The admission of evidence of alleged prior acts of misconduct does not necessarily deprive a defendant of due process.
Gordon,
895 F.2d at 613 . As the Ninth Circuit determined in
Gordon ,
the following factors aid in determining whether a due process violation occurred due to the admission of such evidence: (1) the trial judge’s limiting instructions; (2) the relevance of the evidence; and (3) the jury’s ability to weigh the witnesses’ credibility.
Id.
At least two of these factors are present here.
First, the trial court instructed the jury that evidence tending to show that Petitioner committed a crime other than that for which he was on trial could be considered, not for proving criminal disposition, but only for the limited purpose of establishing identity, motive, intent, knowledge, or
modus oper-andi
RT Vol. VII 1408:1-23. Second, the jury had the opportunity to weigh the credibility of all persons proffering evidence. Third, although the California Supreme Court found this evidence irrelevant, the court reiterates that Petitioner, as well as the state, presented testimony regarding this uncharged crime, thereby diminishing any controversy over its admission. Thus, application of the
Gordon
factors leads the court to conclude that admission of this evidence did not render Petitioner’s trial arbitrary or fundamentally unfair in violation of due process.
b. The Camper Robbery/Arson
The second uncharged offense involved the robbery and subsequent arson of the camper. The jury learned of this uncharged crime from,
inter alia,
Petitioner’s taped confession, RT Vol. V 1136:10, and his trial testimony. RT Vol. VI 1232:17-1235:5; 1235:23-1236:6.
Once again, application of the
Gordon
factors demonstrates that admission of this evidence did not violate Petitioner’s right to due process. . First, the trial judge cautioned the jury that it was only to consider evidence of this uncharged crime for the limited purpose of:.
determining if it tends to show the identity of the person who committed the crime, if any, of which the Defendant is in this trial is [sic] accused, and the existence of the intent which is a necessary element of the crime charged and a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme alleged to have been used in the commission .of the offense in this case.
RT Vol. IV 756:26-757:4.
Moreover, the jury had the opportunity to weigh the credibility of the witnesses who testified concerning the uncharged crime.
Finally, the circumstances and evidence of the robbery/arson were relevant to Petitioner’s identity and intent. Petitioner apparently burned the camper to destroy evidence connecting him to its robbery. He later used a check stolen from the camper to purchase M. Vargas’ car. Consistent with his desire to conceal his involvement in the robbery and arson of the camper, Petitioner, in travelling to Merced, intended to retrieve the check from M. Vargas. Petitioner subsequently committed murder to,
inter alia,
reclaim the check. These actions reflect Petitioner’s efforts to prevent authorities from discovering his participation in these crimes, and demonstrates the relevance of this evidence. Therefore, no due process violation resulted from the admission of this evidence.
2. Vagueness
Petitioner contends that Cal.Penal
*1471
Code § 190.3(b)
32
is unconstitutionally vague because it does not require a jury instruction enumerating the discrete criminal offenses to be considered, the elements of said offenses, or the standard of proof which must be met before the jury may consider such offenses. Petitioner contends that, consequently, the jurors were free to weigh, in aggravation, any of Petitioner’s alleged conduct they viewed as criminal, and determine his sentence in a wholly arbitrary and capricious manner.
Petitioner’s vagueness argument is unpersuasive. The Supreme Court has upheld the constitutionality of the California death penalty scheme, including § 190.3(b), pursuant to which Petitioner was sentenced.
California v. Brown,
479 U.S. 538 , 540 n. *, 107 S.Ct. 837 , 838 n. *, 93 L.Ed.2d 934 (1987);
Pulley v. Harris,
465 U.S. 37, 53-54 , 104 S.Ct. 871, 880-881 , 79 L.Ed.2d 29 (1984);
California v. Ramos,
463 U.S. 992 , 1005 n. 19, 103 S.Ct. 3446 , 3455 n. 19, 77 L.Ed.2d 1171 (1983). The
Harris
Court specifically found that:
[b]y requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases. The statutory list of relevant factors, applied to defendants within this subclass, “provide[s] jury guidance and lessen[s] the chance of arbitrary application of the death penalty guaran-teeting] that the jury’s discretion will be guided and its consideration deliberate.”
Harris,
465 U.S. at 53 , 104 S.Ct. at 881 (quoting
Harris v. Pulley,
692 F.2d 1189, 1194-95 (9th Cir.1982)
rev’d, Pulley v. Harris,
465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984)) (emphasis added). Accordingly, ha-beas relief for this aspect of Claim D is denied.
3. Deprivation of a State Criminal Procedure
In a closely related allegation, Petitioner contends that the trial court violated his constitutional rights by failing to instruct the jury that, in determining his sentence, it could not properly consider the aforementioned uncharged crimes evidence as aggravating circumstances unless it first found these crimes were proven beyond a reasonable doubt. Petitioner’s argument, which relies on
People v. Robertson,
33 Cal.3d 21, 53-55 , 188 Cal.Rptr. 77 , 655 P.2d 279 (1982),
cert. denied, Robertson v. California,
493 U.S. 879 , 110 S.Ct. 216 , 107 L.Ed.2d 169 (1989), lacks merit.
As noted above, alleged errors of state law do not provide a basis for federal habeas relief. When a state law error is asserted, the duty of a federal habeas court is to determine whether the petitioner received due process of law. Given the California Supreme Court’s holding that Petitioner was not deprived of a state court procedure,
33
and
*1472
because no other evidence suggests that Petitioner’s penalty phase was fundamentally unfair or his sentence unconstitutionally imposed, federal habeas relief is denied.
Accordingly, Claim D is denied in its entirety.
E. Claim E
Petitioner alleges his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because the trial court and county government “interfered” with defense counsel’s ability to prepare and present a defense, thereby denying Petitioner’s right to due process, and because defense counsel was burdened with a conflict of interest, thus denying Petitioner’s right to effective assistance of counsel.
1. Due Process
As discussed
supra
§ 111(B)(1)(a), Petitioner’s trial counsel was not aware of, and did not make a motion for funds pursuant to, Cal.Penal Code § 987.9. Nonetheless, Petitioner contends that the county government and trial court “impermissibly interfered with trial counsel’s ability to prepare and present a defense ... by appointing trial counsel ... and then denying him any funds for ancillary defense services.” Pet. 68:12-17. In support of this contention Petitioner submits that his trial counsel made two informal inquiries regarding defense funds, one to the trial judge and one to the court administrator. From the trial judge’s response to his inquiry, counsel received “the impression that no such funds were available.” Pet. 69:22. Similarly, the court administrator told counsel that “the entire yearly budget for contract attorneys had been expended and that no money was available for Petitioner’s case.” Pet. 69:25-70:1.
The court recognizes that “the effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.”
Mason v. Arizona,
504 F.2d 1345, 1351 (9th Cir.1974),
cert. denied,
420 U.S. 936 , 95 S.Ct. 1145 , 43 L.Ed.2d 412 (1975).
See also Smith v. Enomoto,
615 F.2d 1251 (9th Cir.1980),
cert. denied,
449 U.S. 866 , 101 S.Ct. 199 , 66 L.Ed.2d 84 (1980). “[HJowever ... such assistance is not automatically mandatory but rather depends upon the need as revealed by the facts and circumstances of each case.”
Id.
at 1352.
Petitioner’s counsel revealed no need for defense assistance to the appropriate authority and, consequently, said authority had no occasion or opportunity to consider and grant or deny a request for funding. Thus, neither the county government nor the trial court violated Petitioner’s right to due process by “impermissibly interfer[ing]” with counsel’s ability to prepare and present a defense. Accordingly, this portion of Claim E fails.
2. Ineffective Assistance of Counsel
Petitioner asserts that his trial counsel suffered a conflict of interest because “he was placed in the position whereby he had to personally pay for ancillary defense services, or forego the use of such services.” Pet. 68:19-21. Counsel’s decision to forego paying for such services allegedly “led to a series of acts, failures and omissions during the pretrial, trial and penalty phases which severely prejudiced Petitioner at trial and on appeal.” Pet. 70:11-13. The court disagrees.
“In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”
Cuyler v. Sullivan,
446 U.S. 335, 348 , 100 S.Ct. 1708, 1718 , 64 L.Ed.2d 333 (1980) (emphasis added).
Cuyler
applies to conflicts between a client and his attorney’s personal financial interest.
Mannhalt v. Reed,
847 F.2d 576, 580 (9th Cir.1988),
cert. denied,
488 U.S. 908 , 109 S.Ct. 260 , 102 L.Ed.2d 249 (1988);
United States v. Hearst,
638 F.2d 1190, 1193 (9th Cir.1980),
cert. denied,
451 U.S. 938 , 101 S.Ct. 2018 , 68 L.Ed.2d 325 (1981).
If a defendant satisfies the
Cuyler
test, he has established a Sixth Amendment violation; no independent showing of prejudice is required.
Strickland,
466 U.S. at 692 , 104 S.Ct. at 2067 . However, “until a defendant shows that his counsel actively repre
*1473
sented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”
Cuyler,
446 U.S. at 350 , 100 S.Ct. at 1719 .
Petitioner has failed to show that his defense counsel “actively represented conflicting interests.” Although the Sixth Amendment guarantee of effective assistance of counsel includes the collateral right to counsel’s undivided loyalty,
Mannhalt,
847 F.2d at 579 ;
Fitzpatrick v. McCormick,
869 F.2d 1247, 1251-52 (9th Cir.1989),
cert. denied,
493 U.S. 872 , 110 S.Ct. 203 , 107 L.Ed.2d 156 (1989), counsel’s duty of loyalty does not impose an ancillary obligation to personally finance his Ghent’s defense investigation and/or expert costs. In other words, no conflict of interest existed. Counsel’s failure to financially support Petitioner’s defense does not constitute a violation of his duty of loyalty or of Petitioner’s Sixth Amendment right to effective assistance of counsel. As a result, this argument fails.
For the foregoing reasons, relief as to Claim E is denied.
F. Claim F
Petitioner alleges that the trial court vior lated his Fifth, Sixth, Eighth, .and Fourteenth Amendment rights by denying his motion to change venue and then failing to conduct “meaningful” voir dire, thereby denying his right to due process and a fair and impartial jury. Petitioner also alleges that his due process rights were violated by reason of an incomplete record.
1. Change of Venue
Petitioner moved for a change of venue on the ground that he was prejudiced by pretrial publicity. In support of his motion, Petitioner supplied the trial court with copies of twenty-four print and broadcast stories published between October 10,1978, and December 14, 1978. The trial court denied the motion without prejudice. Petitioner renewed his motion on the third day of jury selection, and the court again denied the motion. Petitioner now argues that the court’s ruling was in error.
The standards governing a change of venue derive from the Due Process Clause of the Fourteenth Amendment which safeguards a defendant’s Sixth Amendment right to .be tried by a fair and impartial jury.
Harris v. Pulley,
885 F.2d 1354, 1361 (9th Cir.1988),
cert. denied,
493 U.S. 1051 , 110 S.Ct. 854 , 107 L.Ed.2d 848 (1990). Due process requires a change of venue if the trial court is unable to seat an impartial jury because of prejudicial pretrial publicity.
Rideau v. Louisiana,
373 U.S. 723, 726 , 83 S.Ct. 1417, 1419 , 10 L.Ed.2d 663 (1963);
Harris,
885 F.2d at 1361 . The court must independently examine the news reports for volume, content and timing to determine if they were prejudicial. However, “[a] state trial court’s findings of fact with respect to the prejudicial effect of pretrial publicity are presumed to be correct and will not be set aside unless the error is manifest.”
Harris,
885 F.2d at 1365 (citing
Patton v. Yount,
467 U.S. 1025 , 1031 n. 7, 104 S.Ct. 2885 , 2889 n. 7, 81 L.Ed.2d 847 (1984);
Irvin v. Dowd,
366 U.S. 717, 724 , 81 S.Ct. 1639, 1643 , 6 L.Ed.2d 751 (1961)).
The Ninth Circuit utilizes. a two prong test to determine if a petitioner’s rights to due process and a fair and impartial jury have been violated by excessive and unfair publicity.
Harris,
885 F.2d at 1361 .
See also Hart v. Stagner,
935 F.2d 1007, 1014 (9th Cir.1991).. A petitioner must show that prejudice should be presumed or that actual prejudice existed.
Hart,
935 F.2d at 1014 (citing
Murphy v. Florida,
421 U.S. 794, 800 , 95 S.Ct. 2031, 2036 , 44 L.Ed.2d 589 (1975));
Harris,
885 F.2d at 1361 .
A court may presume prejudice if the record demonstrates that the trial venue was saturated with prejudicial and inflammatory publicity about the crime.
Harris,
885 F.2d at 1361 . Prejudice is presumed only in extreme circumstances.
Id.; Jeffries v. Blodgett,
974 F.2d 1179, 1187 (9th Cir.1992).
The court has read the articles and transcripts submitted by Petitioner’s trial counsel in support of the motion to change venue and concludes that the record does not reflect a “general atmosphere in the community or courtroom [which] is sufficiently inflammatory” and prejudicial to deny Petition
*1474
er his right to a fair and impartial jury at either the guilt or penalty phase of the trial.
Harris,
885 F.2d at 1363 (quoting
Murphy,
421 U.S. at 802 , 95 S.Ct. at 2037 ). Only a limited number of stories, twenty-four, was published. Furthermore, all of the articles were published months prior to the March 20, 1979, trial date; eighteen (78.25%) were published in October of 1978, and six (21.-75%) were published in November and December of 1978. Moreover, the articles were factual in nature,
34
and a majority of them was very brief. Last, many stories focussed on Tyson for the simple reason that authorities apprehended and tried him first; one story did not even mention Petitioner by name. Thus, the record demonstrates that the trial venue was not saturated with prejudicial publicity. Consequently, prejudice may not be presumed in this situation.
35
Jeffries,
974 F.2d at 1187 .
Actual prejudice exists if jurors demonstrated actual partiality or hostility that could not be laid aside.
Hart,
935 F.2d at 1014 (citing
Harris,
885 F.2d at 1361 (citing
Murphy,
421 U.S. at 800 , 95 S.Ct. at 2036 )). As discussed in detail
infra
§ 111(F)(2), the record shows that neither the venire nor the petit jury demonstrated actual prejudice against Petitioner. Thus, Petitioner has failed to demonstrate prejudice by reason of the trial court’s denial of his motion to change venue.
2. Voir Dire
Petitioner argues that the trial court’s “open court” voir dire and its “perfunctory” manner of questioning the venire, particularly with regard to pretrial publicity, violated his right to due process and a fair and impartial jury. Petitioner assigns error to the trial court’s failure to conduct an “individualized and sequestered” voir dire, to inquire as to what each juror had read about the case, and to make an independent determination of juror impartiality. Petitioner specifically criticizes the trial court for “rel[ying] upon the jurors’ professions of impartiality.” Pet. 76:3-4.
a. The Trial Court’s Method of Voir Dire
Actual prejudice exists if venirepersons/jurors demonstrated actual partiality that could not be laid aside.
Hart,
935 F.2d at 1014 (citing
Harris,
885 F.2d at 1361 (citing
Murphy,
421 U.S. at 800 , 95 S.Ct. at 2036 )). “The constitutional standard that a juror is impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court is a question of federal law.”
Patton,
467 U.S. at 1037 m 12, 104 S.Ct. at 2891 n. 12 (citing
Irvin,
366 U.S. at 723 , 81 S.Ct. at 1643 ).
See also Harris,
885 F.2d at 1361 . However, “whether a juror can in fact do that is a determination to which habeas courts owe special deference.”
Patton,
467 U.S. at 1037 n. 12, 104 S.Ct. at 2892 n. 12 (citing
Rushen v. Spain,
464 U.S. 114, 120 , 104 S.Ct. 453, 456 , 78 L.Ed.2d 267 (1983)).
Qualified jurors need not be totally ignorant of the facts and issues involved in a case.
Murphy,
421 U.S. at 799-800 , 95 S.Ct. at 2035-2036 ;
Irvin,
366 U.S. at 722 , 81 S.Ct. at 1642 . The relevant question is not whether the community remembered the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt of, or appropriate punishment for, the
*1475
defendant.
Patton,
467 U.S. at 1035 , 104 S.Ct. at 2891 .
The trial court initially asked the entire panel if they had read anything about the case. RT Vol. 1119:15-18. The twelve veni-repersons who responded affirmatively were then questioned in greater detail. RT Vol. I 119:19-125:25. In all but three instances, the court, following the dismissal of a venireper-son for cause or upon the exercise of a peremptory challenge, inquired of each replacement venireperson whether he or she had read anything about the case. RT Vol. I 169:26-170:5; 193:24-26; 249:26-250:1; 251:28-252:5; 259:2-260:4; 263:24-26; 265:22-24; 272:18-20; 275:12-14; RT Vol. II 280:10-281:26;- 288:11-25; 296:3-15; 300:6-9; 303:26-28; 307:17-308:1; 310:21-311:4; 318:18-319:26; 323:3-8; 334:19-22; 334:19-22; 341:11-18; 369:17-27; 374:18-23; 382:12-18; 389:23-390:6; 393:2-5; 395:22-24; 397:26-28; 400:4-6; 403:1-16; 405:22-24; 409:17-28; 411:2-15; 412:23-423:7; 416:28-417:17. In the three instances in which the court did not inquire about pretrial publicity; RT Vol. I 237:11-248:11; RT Vol. II 3.76:7-381:25; 384:5-388:7, two of the prospective jurors were immediately dismissed for cause, RT Vol. II 381:20-25; 388:5-6, and the remaining venireperson was peremptorily challenged. RT Vol. II 295:17-20.
With regard to the court’s questioning of the twelve venirepersons who became petit jurors, nine swore that they had read or heard nothing about the case, RT Vol. I 193:24-26; 233:15-23; 265:22-24; 272:18-20; RT Vol. 11334:19-222; 341:11-18; 374:18-23; 400:4-6; 405:22-24, while three swore that they had read one or more articles in the local newspaper. RT Vol. II 310:18-20; 369:10-13; 389:16-22. Of those three, two read only the initial account of the incident, RT Vol. II 310:23-24; 369:20, while the third had read something about it “quite some time ago.” RT Vol. II 389:26. Two could not recall specifics about what they had read
36
, RT Vol. II 369:25-27; 390:4-6; and all three swore that they had neither formed nor expressed an opinion about Petitioner’s guilt or innocence. RT Vol. II 310:25-28; 369:21-24; 389:28-390:3.
The trial court’s voir dire demonstrates that actual prejudice did not exist, and that Petitioner’s rights to due process and a fair and impartial jury were adequately protected. This conclusion is unaffected by either the trial court’s failure to conduct individualized voir dire,
Reiger v. Christensen,
789 F.2d 1425, 1434 (9th Cir.1986) (“[t]he Constitution does not require an individual voir dire of all jurors exposed to potentially prejudicial publicity”), or its failure to inquire as to the content of .the pretrial publicity to which some of the venirepersons had been exposed.
Mu’min v. Virginia,
— U.S. -,- -, 111 S.Ct. 1899 , 114 L.Ed.2d 493, 509-10 (1991) (due process does not require inquiry into the content of pretrial publicity),
b. The Trial Court’s Reliance on Juror Assurances of Impartiality
Petitioner argues that the trial court erred in relying on the jurors’ professions of impartiality. This argument is also meritless.
“The Supreme Court has indicated that a key factor in gauging the reliability of juror assurance of impartiality is the percentage of veniremen who ‘will admit to. a disqualifying prejudice.’ ”
Harris,
885 F.2d at 1364 (quoting
Murphy,
421 U.S. at 803 , 95 S.Ct. at 2037 ). The higher the percentage of venirepersons who admit to a preconceived opinion, the greater the concern over the reliability of the professions of impartiality from the remaining potential jurors in the venire.
Murphy,
421 U.S. at 803 , 95 S.Ct. at 2037 . In
Murphy ,
the court determined that the professed impartiality of potential jurors could be relied upon despite the fact that approximately 26% of the venire was dismissed because they had formed an opinion as to the defendant’s guilt.
Id. See also Jeffries,
974 F.2d at 1188 (8% partial);
Harr
is, 885 F.2d at 1363 (18% partial).
Cf Irvin,
366 U.S. at 727 , 81 S.Ct. .at 1645 (90% partial). In Petitioner’s ease the court excused five members of the venire for cause, but none because the venireperson held preconceived notions of Petitioner’s guilt.
37
Conse
*1476
quently, the trial court justifiably relied on the jurors’ sworn assurances regarding their impartiality. RT Vol. I 193:20-23; 233:20-23; 265:18-21; 272:11-14; RT Vol. II 310:18-20; 334:15-18; 341:7-10; 369:10-13; 374:14-17; 389:16-22; 399:28-400:3; 405:18-21.
3. Incomplete Record
A transcript of the February 5, 1979, proceeding at which the trial court heard and denied Petitioner’s initial motion for a change of venue does not exist. Petitioner complains that the resulting incomplete record constitutes a violation of due process.
To determine whether an incomplete record constitutes a violation of due process, the court must consider Petitioner’s need for the missing transcript.
Madera v. Risley,
885 F.2d 646, 648 (9th Cir.1989). Two criteria are relevant in determining need: the value of the transcript to Petitioner in connection with the relief sought, and the availability of alternative devices that would fulfill the same function as a transcript.
Id.
(citing
Britt v. North Carolina,
404 U.S. 226 , 227 & n. 2, 92 S.Ct. 431 , 433 & n. 2, 30 L.Ed.2d 400 (1971)).
Consideration of these criteria within the context of this case causes the court to conclude that Petitioner’s due process rights have not been violated by reason of the missing transcript. The record contains a full and complete transcript of Petitioner’s renewed motion for a change of venue. CT Vol. II 346:5-368:2. The transcript of this second hearing operates sufficiently well as an “alternative device” to the initial hearing on this matter. Thus, there is a basis upon which this court may review the trial court’s decision and determine whether Petitioner was entitled to the relief sought. Consequently, this argument fails.
For the foregoing reasons, the relief requested as to Claim F is denied.
G. Claim G
In a claim closely related to that addressed immediately above, Petitioner alleges that his trial counsel violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by failing to research the law or facts supporting a motion to change venue, to challenge the prosecution’s representation of the amount of publicity that existed, to seek pretrial writ review of the trial court’s denial of the motion to change venue, to request individualized voir dire, and to conduct adequate voir dire.
Petitioner and Respondent disagree as to the appropriate standard applicable to this claim. Petitioner’s contention that he need only demonstrate that, but for the alleged error, the outcome of the motion would have been different is plainly incorrect. As Respondent asserts, the standard set forth in
Strickland
is whether, but for the error, “the factfinder would have had a reasonable doubt respecting guilt ... [or] would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Id.
466 U.S. at 695 , 104 S.Ct. at 2069.
1. Failure to Research the Facts and Law and Challenge the Prosecution’s Representation of Publicity; Failure to Request Individualized Voir Dire; Failure to Conduct Adequate Voir Dire
As determined
supra
§ 111(F)(1) and (2), Petitioner’s rights to due process and a fair and impartial jury were adequately protected by the trial court’s voir dire.
A fortiori,
Petitioner was not prejudiced by his trial counsel’s voir dire or his failure to request individualized voir dire.
Similarly, Petitioner was not prejudiced by his trial counsel’s alleged failure to research the law or facts supporting the motion to change venue, or to challenge the prosecutor’s representation as to the amount of publicity that existed. As discussed
supra
§ 111(F)(1), the court has considered the publicity submitted by Petitioner’s current counsel as well as that submitted at the time of trial. Because the motion was properly denied, Petitioner has suffered no prejudice as a result of his trial counsel’s alleged fail
*1477
ure to research. Accordingly, this argument fails.
2. Failure to Seek Pretrial Writ Review
Under California law, criminal defense counsel may, before trial, petition the court of appeal for a writ of mandamus if a motion to change venue is denied.
Maine v. Superior Court,
68 Cal.2d 375, 379 , 66 Cal. Rptr. 724 , 438 P.2d 372 (1968). Thus, petitioning the court of appeal for a writ of mandamus is an option under state law, but it is not a federal constitutional requirement. Accordingly, trial counsel’s failure to exercise an option under state law is not an error rising, or sinking, to constitutional proportions.
Furthermore, assuming,
arguendo,
that counsel erred by neglecting to seek pretrial writ review, Petitioner has failed to demonstrate a reasonable probability that, but for said error, the motion would have been granted, much less that the outcome of the trial or the penalty imposed would have been different. Consequently, he has not established prejudice resulting from counsel’s decision to not seek interlocutory review. Accordingly, relief for claim G is denied.
H. Claim H
Petitioner alleges that his trial counsel violated his Fifth, Sixth, Eighth, and Fourteenth Amendments right by stipulating that the court should not give the standard accomplice credibility instruction in conjunction with Tyson’s testimony, and by failing to request a modified accomplice credibility instruction.
The CALJIC 3.18 standard accomplice instruction submitted by the prosecution stated:
[i]t is the law that the testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case.
.CT Vol. II 322. The modified charge that Petitioner argues should have been requested would have instructed the jury that those portions of Tyson’s testimony tending to incriminate Petitioner should be viewed with distrust.
1. Ineffective Assistance of Counsel
In accordance with the stipulation between counsel, the trial court did not specifically instruct the jury to view Tyson’s testimony with distrust. Petitioner argues that this “omission prejudiced [him] because it permitted the jury to consider unreliable and highly prejudicial evidence, including accomplice Tyson’s testimony regarding Petitioner’s purported description of his conduct at the time of victim Meza’s' death.” Pet. 81:10-14. Petitioner contends that, but for this error, it is reasonably probablé the jury would have reached different verdicts. The court disagrees.
Petitioner testified at trial and expressly admitted to killing three people.
See supra
note 25. Furthermore, he made a taped confession which the prosecution played for the jury.
See supra
note 26. Thus, Petitioner personally supplied the jury with overwhelming evidence that he killed the three victims;. Tyson’s testimony was cumulative in that regard. Therefore, Petitioner was not prejudiced either as a result of counsel’s stipulation to withdraw the instruction which would have informed the jury that Tyson’s testimony should be regarded with distrust, or his failure to request a modified instruction. Either instruction would have affected the jury’s consideration of Tyson’s testimony, but neither would have affected its consideration of Petitioner’s testimony and confession.
38
'
Furthermore, Petitioner has failed to demonstrate that omission of the instruction had any impact on the sentencing phase of the
*1478
trial. “When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Strickland,
466 U.S. at 695 , 104 S.Ct. at 2069 .
The court questions the impact and relevance of an omitted guilt phase instruction on the jury’s sentencing determination. However, assuming,
arguendo,
that the omission reverberated into the jury’s sentencing phase deliberations, the court, having read the entire transcript and considered the aggravating and mitigating circumstances as presented during the penalty phase, concludes that there is no reasonable probability that, but for the omission, the jury would have reached a verdict other than death. The record clearly supports the jury’s determination that the aggravating factors outweigh any factors in mitigation.
2. Due Process
Petitioner argues, in passing, that the trial court violated his right to due process by failing to give,
sua sponte,
an accomplice credibility instruction. In
Henderson v. Kibbe,
431 U.S. 145 , 97 S.Ct. 1730 , 52 L.Ed.2d 203 (1977), the Supreme Court determined that the question in a collateral proceeding in which process is challenged by reason of an omitted jury instruction is whether the omission so infected the entire trial that the trial cannot be relied on as having produced a just result.
Id.
at 154 , 97 S.Ct. at 1736 . A petitioner .who makes such a due process challenge carries an “especially heavy” burden.
Id.
at 155 , 97 S.Ct. at 1737 .
Henderson
makes clear that Petitioner’s unsupported allegation of a due process violation is insufficient. He has presented no authority for his contention that the trial court had a duty to give an accomplice credibility instruction on its.own motion in order to comport with due process requirements. To the contrary, the Ninth Circuit has determined that a judge’s failure to
sua sponte
instruct the jury on accomplice credibility does not constitute plain error under federal law.
United States v. Bosch,
914 F.2d 1239, 1247 (1990);
United States v. Busby,
484 F.2d 994, 997 (9th Cir.1973),
cert. denied,
415 U.S. 980 , 94 S.Ct. 1570 , 39 L.Ed.2d 877 (1974).
39
Furthermore, Petitioner has not attempted to demonstrate that omission of the accomplice instruction so infected his trial as to cast doubt on the justness of the result. Accordingly, the court finds that no due process violation occurred.
Relief as to Claim H is therefore denied.
I. Claim I
Petitioner alleges that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by appointing psychiatrists for the dual purpose of determining his sanity at the time of the offenses and his competency to stand trial. As discussed
supra
§ 111(B)(6), Petitioner’s competency was never seriously in issue. Moreover, Petitioner points to no statements regarding competency that were introduced as evidence despite being excludable. Thus, any error of the trial court by reason of this “dual” appointment was harmless. Accordingly, relief as to this claim is denied.
J. Claim J
Petitioner challenges the jury’s verdict of sanity, alleging that the trial court instructed the jury “on an improper and inapplicable definition of legal insanity.” Pet. 86:7-8. Petitioner contends that the trial court’s error resulted in the violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
*1479
The trial court twice instructed the jury on the legal definition of insanity. First, the judge correctly defined insanity according to the American Law Institute (ALI) definition adopted in
People v. Drew, 22
Cal.3d. 333, 149 Cal.Rptr. 275 , 583 P.2d 1318 (1978)
40
:
[a] person is legally insane if, as a result of mental disease' or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
If you find that the defendant had substantial capacity to appreciate the criminality of his conduct and had substantial capacity to conform his conduct to the requirements of law, you will find that he was legally sane.
However, if you find that as a result of mental disease or mental defect the defendant lacked substantial capacity to appreciate the criminality of his conduct or that he lacked substantial capacity to conform his conduct to the requirements of law, you will find that he was legally insane.
The word criminality as used in this in[s]truetion means an act or conduct which constitutes a crime.
RT Vol. VII 1551:21-1552:7. However, the judge subsequently gave a
M’Naghten
instruction: “[a] person whose brain has become diseased or damaged by the use of intoxicating liquor, drugs or narcotics so as to render him incapable of knowing or understanding the nature and quality of his act, or make him incapable of knowing or understanding that his act was wrong, is legally insane.”
Id.
at 1552:14-18. In concluding the sanity phase instructions, the judge reiterated a paraphrased
Drew
/ALI definition of insanity, stating that “[ujncontrollable or irresistible impulse itself is not legal insanity unless as a result of mental disease or mental defect a person lacked substantial capacity to appreciate the criminality of conduct or to conform his conduct to the requirements of law.”
41
Id.
at 1552:28-1553:4.
The California Supreme Court determined that the trial court erred by including the
M’Naghten
definition of insanity, but found ■ such error harmless.
Williams,
44 Cal.3d at 931 , 245 Cal.Rptr. 336 , 751 P.2d 395 . This court agrees.
A prisoner is. entitled to federal habeas relief only if he is held in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. 2254(a). A mere error of state law is not a denial of due process or fundamental fairness.
Engle v. Isaac,
456 U.S. 107 , 121 n. 21, 102 S.Ct. 1558 , 1568 n. 21, 71 L.Ed.2d 783 (1982) (quoting
Gryger v. Burke,
334 U.S. 728, 731 , 68 S.Ct. 1256, 1257 , 92 L.Ed. 1683 (1948)). Consequently, that a jury instruction may be incorrect under state law is not a basis for relief.
Estelle v. McGuire,
— U.S. -, -, 112 S.Ct. 475, 481 , 116 L.Ed.2d 385, 398 (1991);
Engle,
456 U.S. at 119 , . 102 S.Ct. at 1567 . The question for a federal habeas court is whether the instruction so infected the entire trial that the resulting conviction violates due process.
McGuire ,
— U.S. at -, 112 S.Ct. at 482 , 116 L.Ed.2d at 399 (quoting
Cupp v. Naughten,
414 U.S. 141, 147 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973));
Henderson v. Kibbe,
431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203 (1977);
Carriger v. Lewis,
971 F.2d 329, 334 (9th Cir.1992) (en banc).
To determine whether the
M’Naghten
instruction so infected the trial as to violate due process, the court must view the instruction in the context of the overall charge to the jury.
McGuire ,
— U.S. at -, 112 S.Ct. at 482 , 116 L.Ed.2d at 399 ;
Cupp,
414 U.S. at 146-47 , 94 S.Ct. at 400-01 ;
McSherry v. Block,
880 F.2d 1049, 1059 (9th Cir.1989),
cert. denied,
— U.S. -, 111 S.Ct. 1404 , 113 L.Ed.2d 459 (1991). The question is “ “whether there is a reasonable likelihood that the jury applied the challenged instruction in a way’ that violates the Constitution.”
McGuire ,
— U.S. at -, 112 S.Ct. at 482 , 116 L.Ed.2d at 399 (quoting
Boyde v. Califor
*1480
nia,
494 U.S. 370, 380 , 110 S.Ct. 1190, 1198 , 108 L.Ed.2d 316 (1990)).
The court finds error with the trial judge’s inclusion of the
M’Naghten
language in his charge to the jury. Although there is no constitutional right to a particular definition of insanity, once a state has established, within its rules of criminal procedure, that one definition of insanity must be used to the exclusion of another, due process protects a defendant’s right to have the state follow its procedure and utilize the sanctioned definition.
Hicks v. Oklahoma,
447 U.S. 343, 346 , 100 S.Ct. 2227, 2229 , 65 L.Ed.2d 175 (1980);
Ballard v. Estelle,
937 F.2d 453, 456 (9th Cir.1991);
Aiken v. Blodgett,
921 F.2d 214, 217 (9th Cir.1990),
cert. denied,
- U.S. -, 112 S.Ct. 125 , 116 L.Ed.2d 93 (1991). At the time of Petitioner’s trial it was clearly established that a defendant pleading not guilty by reason of insanity was entitled to a determination of sanity under the
ALl/Drew
definition. However, the trial court’s instruction plainly included the more restrictive, prohibited
M’Naghten
language, and thereby exacerbated Petitioner’s burden of proving insanity. Nevertheless, the error was harmless.
An error is harmless where it appears beyond a reasonable doubt that it did not contribute to the verdict obtained.
Yates v. Evatt,
— U.S. -, -, 111 S.Ct. 1884, 1892-93 , 114 L.Ed.2d 432 (1991) (citing
Chapman v. California,
386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967)). “To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.”
Yates ,
— U.S. at -, 111 S.Ct. at 1893, 114 L.Ed.2d at 449. To determine whether an error contributed to the verdict, the court inquires as to the evidence the jury considered in reaching the verdict, and weighs thé probative force of the evidence against the .force of the error.
The jury considered evidence presented in both the guilt and sanity phases to determine Petitioner’s sanity.
42
Petitioner presented no direct evidence, and little circumstantial evidence, of insanity during the guilt phase of his trial.
43
He presented no evidence of insanity during the sanity phase of the trial.
44
The probative force of the evidence presented regarding sanity, that is, the virtual absence of evidence demonstrating insanity, far outweighs the force of the instructional error, and renders the conflict between the
ALl/Drew
definition of insanity and the
M’Naghten
language inconsequential. In other words, the evidence did not support a finding of insanity under either definition given by the trial court. Consequently, the instructional error was simply “unimportant” within the meaning of
Yates .
Accordingly, as it is beyond a reasonable doubt that the error was harmless, relief as to this claim is denied.
K. Claim K
Invoking the Fifth, Sixth, Eighth, and Fourteenth Amendments, Petitioner argues that his rights to due process, a reliable determination of guilt of the special circumstances, and a constitutional death verdict were violated because the felony offenses
*1481
underlying the rape, robbery, and kidnapping special circumstances were not separately charged and proven. Specifically, Petitioner argues that the prosecutor’s failure to separately charge the special circumstances violated Cal. Penal Code § 190.4 (a) which provided that “[w]henever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.”
Without expressly assigning error,
45
the California Supreme Court determined that Petitioner suffered no prejudice resulting from the prosecution’s failure to separately charge the special circumstances.
Williams,
44 Cal.3d at 925-27 , 245 Cal.Rptr. 336 , 751 P.2d 395 .
As previously noted, a state prisoner is entitled to federal habeas relief only if he is held in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. 2254(a). A mere error of state law does not constitute a denial of due process.
Engle v. Isaac, 456
U.S. 107, 121 n. 21, 102 S.Ct. 1558 , 1568 n. 21, 71 L.Ed.2d 783 (1982) (quoting
Gryger v. Burke,
334 U.S. 728, 731 , 68 S.Ct. 1256, 1257 , 92 L.Ed. 1683 (1948)).
See also Middleton v. Cupp,
768 F.2d 1083, 1085 (9th Cir.1985),
cert. denied, 478
U.S. 1021, 106 S.Ct. 3336 , 92 L.Ed.2d 741 (1986). In fact, “the presence or absence of a state law violation is largely beside the point.”
Jammal v. Van De Kamp,
926 F.2d 918, 919-20 (9th Cir.1991);
Braley v. Gladden, 403
F.2d 858, 860 (9th Cir.1968). “The issue is whether the state proceedings satisfied due process....”
Jammal,
926 F.2d at 919-20 .
Due process protects Petitioner’s Sixth Amendment right to be informed of the nature and cause of the charges against him, his fundamental right to have a jury determination that the charges levied against him are true beyond a reasonable doubt,
In re Winship,
397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), his Fifth Amendment right against double jeopardy, and his Eighth Amendment right to the constitutional imposition of the death penalty. The record clearly demonstrates that none • of these rights were violated by the state’s failure to separately charge the special circumstances.
First, Petitioner had constitutionally adequate notice of the charges against him because the prosecution alleged rape, kidnapping, and robbery as special circumstances in the criminal complaint. CT Vol. I D-4;
Sheppard v. Rees,
909 F.2d 1234 , 1236 n. 2 (9th Cir.1989).
Second, the court instructed the jury on the definition and elements of the special circumstance offenses, RT Vol. VII 1418:27-1419:3; 1419:4-15; 1419:22-1420:11; 1431:19-1432:12; 1432:19-1433:13; and 1433:21-1434:7, and on the prosecutor’s burden of proving each special circumstance offense beyond a reasonable doubt for it to be found true.
Id.
at 1411:3-16; 1418:24-26; 1419:16-21; 1420:12-16; 1429:2-10; 1432:13-18; and 1433:14r-20. With the exception of the rape circumstance, the jury determined that the prosecutor had proven the special circumstance offenses beyond a reasonable doubt. CT Vol. II 412; 414; 416.
Third, Petitioner was substantively prosecuted for rape, kidnapping and robbery. Consequently, the Double Jeopardy Clause protects him against subsequent prosecution of these offenses.
Grady v. Corbin,
495 U.S. 508, 510 , 110 S.Ct. 2084, 2087 , 109 L.Ed.2d 548 (1990) (“the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in the prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted”). Petitioner has made no showing that this right has been violated.
*1482
Last, the alleged state law error did not contaminate the process by which Petitioner was found death eligible. Consequently, imposition of the death penalty did not violate Petitioner’s Eighth Amendment right to the constitutional imposition of the death penalty-
For the foregoing reasons, relief as to this claim is denied.
L. Claim L
Petitioner alleges that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by failing to instruct the jury on an essential element of the kidnapping special circumstance, namely that before it could find the kidnapping special circumstance true, it must find Petitioner killed Meza to advance an independent felonious purpose. Due to the court’s failure to give this instruction, Petitioner alleges the violation of his. rights to a fair trial, including a jury determination regarding the kidnapping special circumstance, to be free from double jeopardy, and to the constitutional imposition of the death penalty.
After defining kidnapping, RT Vol. VII 1419:4-21, the trial court gave the following kidnapping special circumstance instructions:
[i]t is further charged that Keith Daniel Williams was personally present and physically aided or committed the acts causing the death of Lourdes Meza and that the murder of Lourdes Meza was willful, deliberate and premeditated and was committed during the commission or attempted commission of kidnapping in violation of Section 207 of the California Penal Code.
To find that the special circumstance referred to in these instructions as murder in [the] commission of a kidnapping[] is true, each of the following facts must be proved.
One, that the murder was willful, deliberate and premeditated, and two, that defendant was personally present during the commission of the act or acts causing death, and three, that defendant, with intent to cause death, physically aided or committed the act or acts causing death, and four, that the murder was committed during the commission or attempted commission of a kidnapping.
Kidnapping is unlawfully compelling another person against his will and without his consent and because of a reasonable apprehension of harm to move for a substantial distance where such movement is not merely incidental to the commission of the crime of robbery or rape and where such movement substantially increases the risk of harm to such person over and above that necessarily inherent in the commission of the crime or crimes of robbery or rape.
It is a defense to a charge of kidnapping that the defendant entertained a reasonable,good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the alleged kidnapping.
If from all the evidence you have a reasonable doubt whether the defendant reasonably and in good faith believed that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the said movement, you must give the defendant the benefit of that doubt and find that the special circumstance kidnapping charge in the tenth paragraph is not true.
RT Vol. VII 1428:23-1429:1; 1432:19-1433:20.
Petitioner contends the trial court should have instructed the jury that “it must find beyond a reasonable doubt that the kidnapping must advance an independent felonious purpose other than the killing before it could find the special circumstance true.” Pet. 91:3-6 (emphasis added). This is a misstatement of California law.
As the California Supreme Court noted in considering Petitioner’s appeal/petition, “the special circumstance of killing during the commission of one of the felonies enumerated in section 190.2, subdivision (a)(17), exist[s] only if the killing was to advance the independent felonious purpose” of any of the enumerated felonies.
Williams,
44 Cal.3d at 928 , 245 Cal.Rptr. 336 , 751 P.2d 395 (quoting
People v. Green,
27 Cal.3d 1, 61 , 164 Cal.
*1483
Rptr. 1, 609 P.2d 468 (1980))-(emphasis added). In other words, the kidnapping special circumstance could not be true if the kidnapping was merely incidental to the killing. However, if the killing advanced the independent felonious purpose of kidnapping, the kidnapping special circumstance could be true.
Id.
44 Cal.3d at 927 , 245 Cal.Rptr. 336 , 751 P.2d 395 . The California,Supreme Court assumed state law required a
Green
instruction, but found its omission harmless because “overwhelming” evidence showed that the killing advanced the independent felonious purpose of kidnapping.
Id.
at 928-29, 245 Cal.Rptr. 336 , 751 P.2d 395 .
As discussed above, an incorrect jury instruction is not a basis for federal habeas relief.
Estelle v. McGuire,
— U.S. -, -, 112 S.Ct. 475, 482 , 116 L.Ed.2d 385, 398 (1991);
Engle v. Isaac,
456 U.S. 107, 119 , 102 S.Ct. 1558, 1567 , 71 L.Ed.2d 783 (1982). The only question for a federal habeas' court is whether omission of the instruction so infected the entire trial that the resulting conviction violates due process.
McGuire ,
— U.S. at -, 112 S.Ct. at 482, 116 L.Ed.2d at 399 (quoting
Cupp v. Naughten,
414 U.S. 141, 147 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973));
Henderson v. Kibbe,
431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203 (1977);
Carriger v. Lewis,
971 F.2d 329, 334 (9th Cir.1992) (en banc).
Under California law, an element of the kidnapping special circumstance is that the killing must advance the felonious purpose of kidnapping. The trial court failed to instruct the jury in this regard. “Failure to properly instruct the jury regarding an element of the charged crime is a constitutional error that deprives the defendant of due process unless ... the error can be treated as harmless.”
Hennessy v. Goldsmith,
929 F.2d 511, 514 (9th Cir.1991) (citing
In re Winship,
397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970)). Thus, the trial court erred in omitting this element from the kidnapping special circumstance instructions. However, that error was harmless.
An error is harmless where it appears beyond a reasonable doubt that it did not contribute to the verdict obtained.
Yates v. Evatt,
— U.S. -, -, 111 S.Ct. 1884, 1892-93 , 114 L.Ed.2d 432 (1991) (citing
Chapman v. California,
386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)). An error did not contribute to the verdict if it was unimportant in. relation to .everything else the -jury considered on the issue in question.
Yates ,
— U.S. at -, 111 S.Ct. at 1893, 114 L.Ed.2d at 449. To determine whether an error contributed to the verdict, the court must inquire as to what facts the jury necessarily found under the instructions given, and whether it is beyond a reasonable doubt that, in finding those facts, the jury must also have found the element on which the instructions were deficient.
Hart v. Stagner,
935 F.2d 1007, 1011 (9th Cir.1991).
See also Martinez v. Borg,
937 F.2d 422, 424-25 (9th Cir.1991).
Cf. United States v. Valdez,
594 F.2d 725, 729 (9th Cir.1979).
The instructions clearly required the jury to determine whether kidnapping was proven. To .determine whether a kidnapping occurred, the jury necessarily considered Petitioner’s actions from the time of Meza’s as-portation to the time of her death. The evidence demonstrates that Petitioner could have killed Meza at the farmhouse but, instead, transported her a substantial distance against her will, that Petitioner intended to have, and had, sexual intercourse with Meza during said asportation, and that Petitioner killed Meza.
The jury considered this evidence and determined that a kidnapping occurred. This conclusion necessarily includes the common sense recognition that Petitioner did not simply intend to kill Meza, because this plan would most easily and simply have been accomplished at the farmhouse. Instead, the evidence shows, the jury necessarily determined, and the California Supreme Court found, that after robbing Meza, Petitioner’s primary felonious purpose was to kidnap her, his secondary felonious intent was to rape her,
46
and his third felonious purpose was to kill her.
See, e.g., Williams
, 44 Cal.3d at 928-29 , 245 Cal.Rptr. 336 , 751 P.2d 395 . The
*1484
killing advanced the. prior felonious purposes by silencing the victim.
The absence of an instruction that Petitioner must have killed Meza to advance the kidnapping neither prevented the jury from fully considering whether the kidnapping was merely incidental to the killing, nor precluded its determination that the kidnapping was an independent felonious purpose advanced by the killing.
47
Consequently, the court finds that the jury made a constitutionally adequate determination that the kidnapping special circumstance was true. The imposition of the death sentence on the basis of the kidnapping special circumstance is, therefore, constitutional. No double jeopardy concerns exist.
Supra
note 47. Accordingly, relief as to Claim L is denied.
48
M. Claim M
Petitioner asserts that the trial court’s allegedly erroneous penalty phase instructions violated his Eighth and Fourteenth Amendment rights to individualized consideration of the appropriate penalty and, consequently, a reliable penalty determination. Specifically, Petitioner challenges the trial court’s reading of CALJIC 8.88.1 on the ground that it “injected irrelevant factors into the case, thereby arbitrarily expanding the list of potential aggravating factors and permitting the jury to consider [irrelevant] mitigating- circumstances in aggravation.” Pet.- 92:10 — 13.
Pursuant to CALJIC 8.88.1, the court instructed,
In determining which penalty is to be imposed on defendant you shall consider all of the evidence which has been received during any part of the trial of this case. Yoh shall consider, take into account and be guided by the following factors if applicable.
A. The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.
B. The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence.
C. Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
D. Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
E. Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
F. Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
G. Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or the effects of intoxication.
H. The age of the defendant at the time of the crime.
*1485
I. Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
J. Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
You must not consider as to aggravation any evidence of criminal activity by defendant which did not involve the use or attempted use of force or violence or which did not involve the expressed or implied threat to use force or violence.
RT Vol. VII 1613:3-1614:11.
Petitioner contends the trial court’s alleged error in reading this instruction was exacerbated by the prosecutor’s subsequent argument that the absence of certain mitigating factors should be considered as aggravating factors by the jury in its weighing process.
The California Supreme Court found no state law error.
Williams ,
44 Cal.3d at 959— 60, 245 Cal.Rptr. 336 , 751 P.2d 395 . The only question before this court is whether the state proceeding satisfied due process.
Jammal v. Van De Kamp,
926 F.2d 918, 919-920 (9th Cir.1991).
In
Harris v. Pulley,
885 F.2d 1354, 1379 (1988),
cert. denied,
493 U.S. 1051 , 110 S.Ct. 854 , 107 L.Ed.2d 848 (1990), the Ninth Circuit assumed the inclusion of all ten § 190.3 factors in the penalty phase jury instructions.
See also Pulley v. Harris,
465 U.S. 37, 53 , 104 S.Ct. 871, 881 , 79 L.Ed.2d 29 (1984);
Bonin v. Vasquez,
794 F.Supp. 957, 981 (C.D.Cal.1992).
Cf. Campbell v. Kincheloe,
829 F.2d 1453, 1457-60 (9th Cir.1987),
cert. denied,
488 U.S. 948 , 109 S.Ct. 380 , 102 L.Ed.2d 369 (1988). Moreover, the Supreme Court has noted the constitutional importance of guiding a jury regarding the factors which the state deems relevant to making a sentencing decision.
Gregg v. Georgia,
428 U,S. 153, 192, 96 S.Ct. 2909, 2934 , 49 L.Ed.2d 859 (1976). Therefore, it cannot be said that the trial court’s verbatim § 190.3 instructions violated due process. Accordingly, this claim is denied.
49
N. Claim N
Petitioner asserts the violation of his rights under the Fifth, Eighth, and Fourteenth Amendments resulting from the jury’s penalty phase consideration of the six multiple murder special circumstances as separate aggravating factors. Petitioner argues that the jury’s consideration of these improperly duplicative special circumstances violated his rights to due process and a reliable penalty determination.
The state charged Petitioner with six multiple murder special circumstances, and the jury found all six circumstances to be true. Pursuant to Cal.Penal Code § 190.3, the trial court instructed the jury at the penalty phase that it should:
consider, take into account and be guided by the following factors if applicable.
A., The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.
' B. The presence or absence of criminal activity by the defendant which involved ... force or violence ...
RT Vol. VI 1613:5-14.
The Ninth Circuit addressed the issue of redundant special circumstance charges in
Harris v. Pulley,
692 F.2d 1189, 1203 (1982),
rev’d on other grounds,
465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984). In
Harris,
the petitioner was charged with murdering two people and,
inter alia,
two multiple murder special circumstances. In that case, the petitioner challenged the redundant special circumstance charges on the same grounds presented here,, that is, that the court’s instructions, coupled with the “artificial increase in aggravating factors[,] impermissibly inflated the risk that the jury would arbitrarily impose a sentence of death.” Pet. 96:16-18. The Ninth Circuit, however, found no constitutional violation:
the jury could not have been misled in this case by the duplicative charging of special circumstances. It was clear throughout
*1486
the trial that two murders, not four, were committed., and that both murders arose out of one incident. It is highly unlikely that the jury simply counted up the special circumstances charged and based its verdict on such calculation. We cannot reverse on the basis of speculation of that nature.
Id.
Similarly, it was clear throughout Petitioner’s trial that three murders, not twelve, were committed, and that all three murders arose from the same incident. As in
Harris,
it is highly unlikely that the jury reached its penalty phase verdict simply by counting the multiple murder special circumstances. Accordingly, as no constitutional violation occurred, relief as to this claim is denied.
See Bonin v. .Vasquez,
794 F.Supp. 957, 981 (C.D.Cal.1992).
O. Claim 0
Petitioner argues that the trial court’s allegedly erroneous penalty phase instructions violated his Fifth, Eighth, and Fourteenth Amendment rights to due process, a fair trial, and a reliable penalty determination.
This claim arises from the prosecutor’s incorrect penalty phase argument that the jury must impose' the death penalty if it found the aggravating factors to outweigh the mitigating factors. Petitioner challenges the trial court’s subsequent correction of the prosecutor’s error:
if during the course of the argument you thought you heard any comment about the law as being that it was that you shall impose a sentence of death if you conclude that the aggravating circumstances outweigh the-mitigating circumstances, or you shall impose mitigating — excuse me, life imprisonment without possibility of parole if you feel that mitigating circumstances outweigh the aggravating circumstances, I tell you that’s not the law that applies to the case.
You may use those. As the way in which you go about this. But the way in which you go about it is up to you. And the law does not say you shall do one or the other.
RT Vol. VII 1614:12-22.
The California Supreme Court determined that the trial court committed no error by giving the challenged .instruction.
Williams,
44 Cal.3d at 955 , 245 Cal.Rptr. 336 , 751 P.2d 395 . This court’s review is.limited to determining whether the state proceeding satis: fied due process requirements.
Jammal v. Van De Kamp,
926 F.2d 918, 919-920 (9th Cir.1991).
Petitioner’s threefold challenge to this. instruction fails to demonstrate a due process violation. First, Petitioner argues that the trial court’s instructions improperly permitted the jury to consider irrelevant and impermissible non-statutory aggravating factors in determining the penalty. However, Petitioner points to no such specific factors in the court’s instructions. Moreover, a jury’s consideration of non-statutory factors that enhance its ability to make an individualized determination of sentence does not necessarily constitute a denial of due process.
Harris v: Pulley,
885 F.2d 1354, 1379-84 (9th Cir.1988), ce
rt. denied,
493 U.S. 1051 , 110 S.Ct. 854 , 107 L.Ed.2d 848 (1990).
Second, Petitioner contends that the court’s instructions permitted the jury to adopt the prosecutor’s incorrect mandatory approach to determining the penalty, thereby precluding or inhibiting an individualized penalty determination.
50
As the California Supreme Court noted, a plain reading of the instruction simply does not support this argument.
Williams,
44 Cal.3d at 957 , 245 Cal.Rptr. 336 , 751 P.2d 395 . The trial court’s charge was in keeping with the mandate of Cal.Penal Code § 190.3,
51
which expressly di
*1487
reets the jury to be guided by the individualizing factors provided by the California legislature, that is, the mitigating and aggravating circumstances contained in § 190.3. Compliance with § 190.3 does not obstruct an individualized determination of penalty or violate due process.
Last, Petitioner argues that the trial court’s instruction was so confusing that it failed to provide “clear and precise”, guidelines for the jury. The Supreme Court has recognized the constitutional requirement that a sentencing jury’s decision-making be guided so as to avoid the capricious or arbitrary imposition of the death penalty.
Gregg v. Georgia,
428 U.S. 153, 192-95 , 96 S.Ct. 2909, 2934-36 , 49 L.Ed.2d 859 (1976). Discussing the subject of jury sentencing in a capital case, the
Gregg
Court stated:
the concerns expressed in
Furman
[v.
Georgia,
408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) ] that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
Id.
428 U.S. at 195 , 96 S.Ct. at 2935 .
Thus, while the Constitution requires guiding standards for the sentencing authority in a capital case, there is no requirement that such standards be “clear and precise” as Petitioner argues. Indeed, the Supreme Court expressly anticipated that “such standards are by necessity somewhat general.”
Id.
at 193-94, 96 S.Ct. at 2935 . Moreover, subsequent to its decision in
Gregg ,
the. Court expressly upheld the constitutionality of the California death penalty sentencing scheme.
See supra
§ 111(D)(2). Consequently, the trial court’s penalty phase charge, which instructed the jury to consider the evidence and use the § 190.3 factors as guidance, was constitutionally adequate and satisfied the concern-expressed in
Gregg
and
Furman ,
that is, of ensuring that capital defendants receive individual consideration of the appropriate penalty to protect against the arbitrary or capricious imposition of the death penalty. Accordingly, relief as to Claim O is denied.
P. Claim P
Petitioner contends that prosecutorial misconduct during the penalty phase violated his Fifth, Sixth, Eighth, and Fourteenth Amendments rights. Specifically, Petitioner asserts that the following comments of the prosecutor rendered the trial fundamentally unfair and violated his right against double jeopardy, namely, that: (1) all ten § 190.3 factors could be considered regardless of whether evidence existed pertaining to the factor; (2) each factor must be considered as either aggravating or mitigating, and that factors with regard to which no evidence was produced were aggravating; (3) (a) Petitioner lacked remorse, and that this was an aggravating factor; and (b) the victims’ loss of life should be considered. Both of these statements allegedly pandered to the jury’s passions and prejudices; (4) the jury should “add up” the factors to see whether the mitigating “outweigh” the aggravating or vice versa, and that the jury must impose the death pénalty if the aggravating factors outweighed the mitigating factors;
52
(5) the jury had promised to impose the death penalty during voir dire; (6) Petitioner “raped” Meza despite the jury’s determination that the rape special circumstance was not true; and (7) the prosecutor’s statements diminished the jury’s sentencing responsibility by not informing it of its discretion, but instead by giving the impression that a death sentence was mandatory if the aggravating factors outweighed the mitigating factors, thus precluding an individualized, non-arbitrary and non-capricious sentencing determination.
*1488
Improper prosecutorial remarks do not constitute a
per se
violation of a defendant’s rights.
See Darden v. Wainwright,
477 U.S. 168, 181 , 106 S.Ct. 2464, 2471 , 91 L.Ed.2d 144 (1986). Such comments are reviewed pursuant to the “narrow” due process standard to determine if they rendered the proceedings fundamentally unfair.
Darden,
477 U.S. at 181 , 106 S.Ct. at 2471 ;
Jeffries v. Blodgett,
974 F.2d 1179, 1189 (9th Cir.1992).
Because Petitioner’s trial counsel did not object to any of the challenged statements, this court reviews for plain error.
Jeffries,
974 F.2d at 1189 .
But cf. United States v. Frady,
456 U.S. 152, 167-68 , 102 S.Ct. 1584, 1594-95 , 71 L.Ed.2d 816 (1982) (Court applied cause and prejudice standard in reviewing propriety of jury instructions to which the petitioner failed to object at trial);
but cf.
456 U.S. at 137, 102 S.Ct. at 1577 (Blackmun, J., concurring) (cause and prejudice standard need not be met where state has declined to enforce its own contemporaneous objection rule). An error is plain only if it is highly prejudicial and affects substantial rights.
United States v. Dischner,
974 F.2d 1502, 1515 (9th Cir.1992),
petitions for cert. filed,
(U.S. Oct. 26, 1992) (No. 92-6409); (U.S. Dec. 3, 1992) (No. 92-6802). No such error occurred here.
1.The § 190.3 Factors
As discussed
supra
§ III(M), it is proper under California law for the jury to be informed of all § 190.3 statutory factors.
Williams,
44 Cal.3d at 964 , 245 Cal.Rptr. 336 , 751 P.2d 395 . Given the constitutional importance of providing a jury with guidance as to the factors which the state deems relevant to a sentencing decision, federal law is in accord.
Gregg v. Georgia,
428 U.S. 153, 192 , 96 S.Ct. 2909, 2934 , 49 L.Ed.2d 859 (1976). Thus, the prosecutor’s discussion of the § 190.3 factors was consistent with the guidance contemplated under state and federal law and was not error.
2.Each Factor is Either Aggravating or Mitigating; Confusion as to the Definition of Aggravating and Mitigating
The prosecutor’s statement that “it’s a factor, it’s either an aggravating or it’s a mitigating factor,” RT Vol. VII 1594:17-18, is the basis of Petitioner’s assertion that the jury was improperly directed to consider each factor as either mitigating or aggravating. Petitioner’s assertion is a mischaracterization of the prosecutor’s argument.
As stated directly above, the prosecutor’s discussion of the § 190.3 factors was proper. He presented each factor and discussed its relation or inapplicability to the facts, guiding the jury in determining which factors were relevant, arguing that certain factors were aggravating, and downplaying those that might have been mitigating. This argument did not direct the jury to consider the absence of mitigating factors as aggravating. The prosecutor simply set forth his position and invited the jury to interpret the facts and apply the factors as he did. Given the tone and context of the opening within which the challenged statement is located, the court reads said statement as simply arguing that certain factors were inapplicable mitigating factors, not, as Petitioner contends, that the absence of a mitigating factor is aggravating. Thus, no error occurred by reason of this comment.
Even assuming,
arguendo,
that error occurred, the prosecutor reminded the jury that his argument was not evidence,
id.
at 1600:11-13, and the court instructed the jury to consider only the applicable factors in determining Petitioner’s sentence.
Id.
at 1613:5-7. Consequently, any error that may have occurred was harmless as it was vitiated by the prosecutor’s reminder and the court’s instructions.
3.Appeal to Passion and Prejudice
Petitioner asserts that the prosecutor “diverged] the jury from deciding the case on the relevant evidence concerning the crime and the Petitioner by inflaming its passions and prejudices.” Pet. 105:6-9. Specifically, Petitioner points to the prosecutor’s discussion of the victims and Petitioner’s lack of remorse.
a. Petitioner’s Lack of Remorse
On the subject of remorse, the prosecutor commented:
*1489
[y]ou talk about two people laying there in a pool of blood and the defendant at that time is he thinking about remorse? Or is he thinking about how bad and how evil what he’s done?
No. The first thing is he’s irritated with Tyson because Tyson is sniveling and can’t kill the girl like he’s supposed to.
And the next thought is he’s downstairs and he recalls like every good criminal, he recalls that the loot that he wants is in the kitchen in the woman’s purse.
RT Vol. VII 1592:19-26. The prosecutor later commented:
the interesting thing is that you sat here during the course of this trial and when you saw certain exhibits passed around, it’s just amazing how this person never holds a head down in shame.
Never once said to any of the doctors about the great remorse, the great feeling that this person has because he’d done something wrong.
Dr. Brannan says without conscience. Told Dr. Brannan, “If I’m out in 20 years, I’d do it all over again.”
That’s the remorse.
Id.
1609:14-23. ,
Petitioner contends that no evidence supported the prosecutor’s statements, that remorse was not a proper factor for consideration, and that he had no opportunity for rebuttal. Petitioner is clearly wrong.
“ ‘The presence or absence of remorse is a factor relevant to the jury’s penalty decision’ in a capital case.”
Harris v. Pulley,
885 F.2d 1354, 1384 (9th Cir.1988),
cert. denied,
493 U.S. 1051 , 110 S.Ct. 854 , 107 L.Ed.2d 848 (1990) (quoting
People v. Ghent,
43 Cal.3d 739, 771 , 239 Cal.Rptr. 82 , 739 P.2d 1250 (1987),
cert. denied,
485 U.S. 929 , 108 S.Ct. 1099 , 99 L.Ed.2d 261 (1988)). Furthermore, the conclusion that Petitioner lacked remorse for his deeds is supported by implication, if not expressly, from the facts in evidence. Moreover, Petitioner’s counsel had two separate arguments during the penalty phase within which to rebut the prosecutor’s assertion that Petitioner lacked remorse. Thus, no error occurred by reason of the prosecutor’s statements regarding remorse.
b. The Victims’ Loss of Life
Petitioner challenges the prosecutor’s statements regarding the victims:'
[t]here is no o

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1459402. Public record. Not legal advice.