Belmontes v. Brown

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO BELMONTES, Jr., 

Petitioner-Appellant,

No. 01-99018

v.

JILL L. BROWN, Warden, for the  D.C. No.

CV-89-00736-DFL

California State Prison at San

OPINION

Quentin,*

Respondent-Appellee.



On Remand from the United States Supreme Court

Filed July 15, 2005

Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Reinhardt;

Partial Concurrence and Partial Dissent by

Judge O’Scannlain

*Jill L. Brown is substituted for her predecessor, Jeanne S. Woodford,

as Warden of California State Prison at San Quentin. See Fed. R. App. P.

43(c)(2).

8275

BELMONTES v. BROWN 8281

COUNSEL

Eric S. Multhaup, Mill Valley, California; Christopher H.

Wing, Sacramento, California, for the petitioner-appellant.

Mark A. Johnson, Deputy Attorney General, Sacramento,

California, for the respondent-appellee.

OPINION

REINHARDT, Circuit Judge:

I. PREAMBLE

On July 15, 2003, we filed an opinion in this case holding

that there is a reasonable probability that as a result of instruc-

tional error the jury did not consider constitutionally mitigat-

ing evidence at the penalty phase. We remanded to the district

court for the issuance of a writ of habeas corpus vacating the

death sentence. Belmontes v. Woodford, 350 F.3d 861 (9th

Cir. 2003). The warden timely petitioned the Supreme Court

for a writ of certiorari. On March 28, 2005, the Supreme

Court granted the writ, vacated our judgment, and remanded

the case “for further consideration in light of Brown v. Pay-

ton, 544 U.S. ___, 125 S.Ct. 1432, ___ L.Ed.2d ___ (2005).”

Brown v. Belmontes, 125 S.Ct. 1697 (2005) (mem.).

Upon careful consideration, we conclude that Payton does

not affect our holding in the present case. Notwithstanding the

similarity of the factual and legal issues, Payton was a post-

AEDPA case and was decided under the highly deferential

AEDPA standard, while the case before us is pre-AEDPA and

is determined by the application of the ordinary rules of con-

stitutional interpretation. Under AEDPA, if a state court rea-

sonably determines the facts and correctly identifies the

governing federal standard, a federal court can grant a writ of

8282 BELMONTES v. BROWN

habeas corpus only if the state court was objectively unrea-

sonable in its application of clearly-established Supreme

Court law. Such is not the case when AEDPA does not apply.

In such circumstance, we simply resolve the legal issue on the

merits, under the ordinary rules. Because we recognize “that

AEDPA wrought substantial changes in habeas law,” Wil-

liams v. Taylor, 529 U.S. 362, 387 n.14 (2000) (plurality

opinion), we must be careful not to confuse AEDPA’s defer-

ential standard of review with the pre-AEDPA standard we

employ in this and in other pre-AEDPA cases. As Williams

points out, if anything about AEDPA is clear, it is that “an

unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 365. The issue

here is not the AEDPA issue that the Court confronted in Pay-

ton, but whether the state court engaged in an “incorrect”

application of federal law.

In Payton, the Supreme Court held that the state court was

not objectively unreasonable in concluding that the use of

California’s factor (k) did not unconstitutionally prevent the

jury from considering relevant postcrime mitigating evidence.

Payton did not hold, however, that the use of the challenged

factor was itself constitutional or unconstitutional, either as a

matter of fact or law. Unlike in Payton, here we are required

to determine that very question and our determination must be

made by applying the ordinary pre-AEDPA rules.

In concluding in our earlier opinion that California’s factor

(k), coupled with the trial judge’s instructions, resulted in a

reasonable probability that the jury did not consider Bel-

montes’ principal mitigating evidence, we reached an inde-

pendent legal judgment as to the constitutionality of the

challenged instruction. In doing so, we were free to, indeed

required to, determine the constitutional question on its mer-

its. Having carefully reviewed Payton, and our previous inde-

pendent determination of the constitutional question at issue,

BELMONTES v. BROWN 8283

we find no reason to change our judgment on the matter. We

reaffirm our previous opinion, and reiterate it below.1

II. INTRODUCTION

In this pre-AEDPA death penalty case, Petitioner Fernando

Belmontes, Jr., appeals the district court’s denial of his peti-

tion for writ of habeas corpus. Because the jury was not

instructed that it must consider Belmontes’ principal mitiga-

tion evidence, which tended to show that he would adapt well

to prison and would likely become a constructive member of

society if incarcerated for life without possibility of parole,

and because there is a reasonable probability that the instruc-

tional error affected the jury’s decision to impose the death

penalty on Belmontes, we grant the petition with respect to

the penalty phase. We reject, however, those claims that seek

1

Of the eight Justices who participated in the consideration of Payton,

four specifically reached the same legal conclusion that we reach here:

California’s factor (k) may cause a jury to fail to consider constitutionally

relevant postcrime mitigating evidence. In addition to the three dissenting

Justices in Payton — Justices Stevens, Souter, and Ginsberg — who

would have found the use of California’s factor (k) unconstitutional even

under the heightened deferential AEDPA standards, Justice Breyer, who

joined the majority opinion, specially concurred to note that had he been

making an independent determination of the constitutional issue on the

merits, he likely would have held the “Payton’s penalty-phase proceedings

violated the Eighth Amendment,” which “[i]n a death penalty case . . .

requires sentencing juries to consider all mitigating evidence.” Payton,

125 S.Ct. at 1442 (Breyer, J., concurring). Two of the other four Justices

in the majority held only that it was not objectively unreasonable for the

state court to have concluded that the jurors most likely believed that the

evidence in mitigation was permitted by California’s factor (k) and that

they considered that evidence in their deliberation, but those Justices,

O’Connor and Kennedy, expressed no view as to how they would have

decided the constitutional question had they not been required to apply

AEDPA’s highly restrictive standard. See Payton, 125 S.Ct. at 1442. Only

two Justices, Scalia and Thomas, stated that regardless of whether they

applied the pre- or post-AEDPA rules, they would have held that limiting

a jury’s discretion to consider mitigating evidence does not constitute a

constitutional violation. See id. (Scalia, J., concurring).

8284 BELMONTES v. BROWN

relief from the judgment of conviction and the finding of spe-

cial circumstances. Accordingly, we affirm the district court’s

decision in part, reverse in part, and remand with instructions

to issue a writ vacating the death sentence.

III. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime, Its Investigation, and Pretrial Proceedings

On the morning of Sunday, March 15, 1981, 19-year-old

Steacy McConnell telephoned her parents and stated that she

was afraid because several people, including codefendant

Domingo Vasquez, had threatened her. Several hours later,

McConnell’s parents arrived at her residence in Victor, Cali-

fornia, and found her lying unconscious in a pool of blood.

She died shortly thereafter from cerebral hemorrhaging

caused by fifteen to twenty blows to her head with an iron

bar. Her skull was cracked, and she had defensive injuries on

her hands, arms, and feet. The house was ransacked and her

stereo was missing.

On the Tuesday preceding the murder, several people,

including Vasquez and another codefendant, Robert “Bobby”

Bolanos, partied at McConnell’s house. Although Bolanos left

the residence early Wednesday morning, the party continued

until Friday, when Vasquez stole a quantity of “black

beauties”— amphetamine pills — from McConnell. Upon dis-

covering the theft, McConnell threw Vasquez and his friends

out of the house. The group subsequently discussed their dis-

like of McConnell.

Police investigation of the individuals who had been pres-

ent at the party extended to Vasquez, and ultimately to

Bolanos, who drove a distinctive black Chevy. The police rec-

ognized Bolanos’ car as matching the description of the car

that had been seen in McConnell’s driveway at the time of the

murder. The police impounded the car and interrogated

Bolanos. Bolanos eventually admitted that he had been

BELMONTES v. BROWN 8285

involved in the events that led to McConnell’s death; he iden-

tified Vasquez and Petitioner Fernando Belmontes, Jr., who

had not been at the party but who had been visiting him over

the weekend of the murder, as his coadventurers. On the

strength of Bolanos’ statement, the police obtained a warrant

and headed South to Ontario, where they arrested Belmontes

at his brother’s home. Belmontes was nineteen at the time.

Belmontes, Bolanos, and Vasquez were each charged with

first degree murder and special circumstances. However,

Bolanos soon arranged a deal with the prosecution in which

he agreed to testify against Vasquez and Belmontes in

exchange for a guilty plea to second degree burglary and

immunity on the murder charge. At Vasquez’s preliminary

hearing, Bolanos fingered Belmontes as the main assailant.

After the preliminary hearing, the trial judge dismissed the

special circumstances charge against Vasquez, and he pled

guilty to second degree murder. That left Belmontes, who

alone proceeded to trial.

B. The Guilt Phase

Bolanos was the principal witness for the state. He testified

that on the morning of Sunday, March 15, he and Belmontes

drove to Vasquez’s residence to hang out. When they arrived,

Vasquez was on the phone with McConnell. When Vasquez

hung up the phone, he informed them that McConnell would

not be home during the latter part of the day. The three were

short of cash, and they agreed to burglarize McConnell’s resi-

dence, steal her stereo, and “clean house.” Vasquez’s wife,

Karrie Lynn, testified that as the men departed through the

kitchen, Belmontes grabbed from the counter an iron dumb-

bell bar, which she used for rolling tortillas.

Bolanos told the jury that the three men drove to McCon-

nell’s house in Bolanos’ vintage, black car and parked a short

distance from the house. According to Bolanos, Belmontes

stated that he would approach the house alone, on foot, carry-

8286 BELMONTES v. BROWN

ing the metal bar in case he needed to force entry, so that he

could gather McConnell’s valuables and place them near the

door to facilitate a quick getaway, and that the other two

should wait for about five minutes and then bring the car

around to McConnell’s house.

Bolanos testified that the events unfolded as follows: Bel-

montes left his wristwatch with him, concealed the bar under

his jacket, and walked to McConell’s residence. Bolanos and

Vasquez waited about five minutes, then drove up and backed

into McConnell’s driveway. Vasquez tried to open the trunk

but could not find the right key. Bolanos got out of the vehicle

to assist Vasquez. He heard repeated knocking or banging

noises coming from within the house. Bolanos unlocked the

trunk and got back inside the car, while Vasquez walked to

the front door to assist Belmontes. Shortly thereafter, Bel-

montes and Vasquez emerged from the back door of the house

carrying stereo components. Belmontes was sprinkled with

blood on his face, pants, and shoes. Vasquez “looked like he

had seen a ghost.” Belmontes stated that he had had to “take

out a witness” because she was home. He explained that when

McConnell heard Vasquez and Bolanos drive up, she looked

away from him and he seized the opportunity to hit her with

the bar approximately fifteen times.

Lucy Flores, McConnell’s neighbor, testified that on the

morning of the murder she watched Bolanos’ Chevy as it

backed into McConnell’s driveway. She observed a man get

out of the passenger side and try to unlock the trunk. He

appeared to be having difficulty, whereupon the driver got out

of the car and unlocked it. The driver got back in the car,

while the passenger walked towards the front of McConnell’s

house and met a third man. She did not see where the third

man had come from. The two men headed toward the front of

McConnell’s house. A short while later, she saw them exit

McConnell’s house from the back door, carrying stereo equip-

ment, which they loaded in the trunk before getting in the car

and driving away.

BELMONTES v. BROWN 8287

Bolanos testified that, after leaving McConnell’s house, the

three drove to the nearby city of Galt, where they intended to

fence the stereo. En route, Belmontes wiped blood from the

metal bar and his shoes. Belmontes threw the bar out of the

window as they crossed a bridge over the Mokelumne River.2

They went to the home of Manuel Vasquez, Domingo’s

brother, where Belmontes changed his pants. The three con-

tacted Raul Barron, who met them at the home of Irma

Vasquez, Domingo’s sister, and purchased McConnell’s ste-

reo components from them. Barron later testified that he paid

$100 for the stereo to a man wearing a baseball cap (Bel-

montes), who did most of the talking.

Teresa Cobarrubio, Bolanos’ girlfriend, testified that

Bolanos gave her fifteen dollars from the proceeds of the sale

of the stereo. Acting scared, he informed her that he, Bel-

montes, and Vasquez had burglarized McConnell’s residence.

The following day, Bolanos and Cobarrubio read a newspaper

account of McConnell’s murder, and Bolanos related further

details of the crime. He told Cobarrubio that he had remained

in the car, and that Belmontes had exited the house with blood

on his clothes and had stated that he “had to take a witness

out.”

Bolanos testified that on Monday, March 16, Vasquez cal-

led him to advise that he had been questioned by police and

did not want to “take the rap” for the murder. Bolanos and

Belmontes went to Vasquez’s house, where the three con-

ferred. Karrie Lynn Vasquez testified that from the kitchen

she overheard Belmontes say that he entered McConnell’s

house alone and hit her multiple times with the bar before

Vasquez joined him in the house.

Barbara Murillo, Belmontes’ girlfriend, testified that after

the meeting, Belmontes telephoned her and told her that he

2

Bolanos later led police to the location on the river bank from which

the bar was recovered.

8288 BELMONTES v. BROWN

was “in trouble.” He reported that he had gotten into an argu-

ment with McConnell at her house, become angry and hit her,

and that she fell and “went to sleep,” although he “didn’t

mean for her to go to sleep.”

Detective Holman, the lead investigator, testified that Bel-

montes furnished three tape-recorded statements shortly after

his arrest. In the first statement, he denied any involvement in

the crime. In the second, he admitted the burglary but denied

hitting McConnell. In the third statement, he admitted hitting

McConnell, but insisted that he only hit her once, and then

only at Vasquez’s direction. He stated that the single blow he

delivered caused McConnell to fall down, whereupon he

dropped the bar and began searching the house for valuables,

leaving Vasquez alone with McConnell. Belmontes contended

that he did not pay attention to Vasquez’s actions during this

period and did not observe how McConnell came to have suf-

fered fifteen to twenty fatal blows to her head. Holman also

testified that a small drop of blood found on the tongue of one

of Belmontes’ shoes tested as “type O”—McConnell’s blood

type.

Dr. Maduros, the pathologist who performed the autopsy on

McConnell, testified that she died from cerebral hemorrhag-

ing caused by fifteen to twenty blows to the back left portion

of her skull. She had a separate contusion on her right temple,

which was caused by a single blow of lesser force that did not

lacerate the skin. However, this blow alone would not have

caused death and, if it had been the first, it would not likely

have caused unconsciousness. Injuries to McConnell’s arms,

hands, legs, and feet evidenced a struggle. According to Dr.

Maduros, there would have been sounds “like a cracked pot”

associated with the blows that fractured McConnell’s skull,

and blood would have splattered in a manner consistent with

the blood patterns found on the door jambs in her house.

Belmontes testified in his own defense. He insisted that

Vasquez dealt the fatal blows while he, Belmontes, searched

BELMONTES v. BROWN 8289

the back part of the house for something to take. Belmontes

recounted that he and Bolanos had gone over to Vasquez’s

house, and that when Vasquez mentioned that McConnell

would not be home, they decided to steal her stereo. Although

they expected McConnell to be away, the plan was that Bel-

montes would go to the door in case she turned out to be

home; because of the unhappy denouement of her party a few

days earlier, McConnell would become angry and suspicious

if she saw Vasquez or Bolanos at her door. Although Bel-

montes had met McConnell a few times in the past, she did

not know that he was a friend of Vasquez and Bolanos.

Belmontes’ version of events was consistent with Bolanos’

up to the point of who struck the blows that killed McConnell.

Belmontes agreed that Vasquez and Bolanos stayed in the car

while he walked to McConnell’s front door. He stated that

Vasquez had given him the metal bar to use to break a win-

dow; but that he concealed it in his sleeve. According to Bel-

montes, he knocked at McConell’s door and, to his surprise,

she answered. As soon as he found out that she was home, he

abandoned his intent to burglarize her residence. He told her

that he was hitchhiking and had stopped by because it was

raining. McConnell invited him in. She noticed a bulge in his

sleeve and asked what it was. He showed her the bar and

explained that he had it because he was hitchhiking. He used

McConnell’s bathroom and then stood by the table and talked

to her while she ironed clothes. McConnell told him that she

was having problems with some people and asked him if he

knew Domingo Vasquez. Belmontes said that he had met him.

Belmontes’ testimony continued: Five minutes after he

entered the house, Bolanos and Vasquez pulled into the drive-

way. McConnell started walking toward the front door. Bel-

montes followed behind her and was placing the bar back up

his sleeve when Vasquez rapped on the door. Under Bel-

montes version, when Bolanos’ car backed into the driveway,

Vasquez would have had to proceed immediately to the front

8290 BELMONTES v. BROWN

door; he would not have had time to go to the trunk of the car

to attempt to open it.

According to Belmontes, after he knocked at the door to

McConnell’s house, Vasquez pushed it open, saw McConnell,

and ordered Belmontes to “hit her.” Belmontes followed

Vasquez’ directive and, using a backhanded sweeping motion,

struck McConnell on the side of her head with the bar. She

fell to the floor. Belmontes dropped the bar, ran to the back

bedroom, broke down the door, searched that room and the

kitchen, and returned to the living room. He did not enter the

master bedroom. Upon returning to the front of the house, he

observed Vasquez standing over McConnell and holding the

metal bar. He did not see Vasquez hit McConnell or hear any

blows landing because he was not paying attention. He could

not explain the presence of defensive bruises and contusions

on McConnell’s hands, arms, and feet.

The rest of Belmontes’ testimony is, with one significant

exception, consistent with Bolanos’: Belmontes and Vasquez

gathered the stereo components and exited from McConnell’s

back door. They loaded the stereo components into the trunk.

Vasquez got in the back seat, Belmontes rode shotgun, and

Bolanos drove. According to Belmontes, while en route,

Vasquez handed him the steel bar, which had flesh and hair

residue on it, and then Vasquez (not Belmontes) stated that he

had had to take out a witness. Belmontes, still wearing his

gloves, wiped blood off the bar and set it down on the floor-

board. He was uncertain whether there was blood on his pants

when he left McConnell’s house; he said that the blood might

have come off the bar when he placed it on the floorboard. He

denied having wiped any blood off of his shoes and asserted

that Bolanos and Vasquez told him to throw the bar out his

window into the river, and that he complied.

Belmontes concluded his testimony by stating that the three

drove to Manuel Vasquez’ house, where he changed into a

pair of Manuel’s pants. Manuel contacted Raul Barron, whom

BELMONTES v. BROWN 8291

they then met at Irma Vasquez’ house. Barron bought the ste-

reo for $100. Bolanos, Vasquez and Belmontes divided the

money, bought some beer, and drove to the home of an

acquaintance to purchase narcotics.

Belmontes’ girlfriend, Barbara Murillo, testified that six

months after the murder, she ran into Cobarrubio at the Grape

Festival. Murillo believed that Belmontes was the murderer.

However, when she asked Cobarrubio for further details about

the crime, Cobarrubio claimed that Belmontes had been “set

up” because he had no backup in the area, whereas Vasquez

had a network of local friends.3

After three hours of deliberation, the jury convicted Bel-

montes of first degree murder with special circumstances. It

also made special findings that Belmontes was the actual

killer and that he had the specific intent that death occur.

C. The Penalty Phase

At the penalty phase, the prosecution introduced minimal

aggravating evidence. Detective Holman authenticated two

autopsy photographs depicting McConnell’s wounds. William

Cartwright, manager of a motel in Ontario, California, testi-

fied to an incident in early 1979 in which an individual named

Rudy met Belmontes at a motel and attempted to sell him a

.32 caliber automatic handgun that he had acquired in a bur-

glary. Belmontes reportedly examined the loaded weapon,

cocked the trigger, pointed it at Rudy and stated, “I’ve got it

now. Why buy it?” Rudy left the premises and Belmontes

retained the weapon.

3

Cobarrubio testified that she recalled running into Murillo at the Grape

Festival. Murillo had asked her whether she thought Belmontes “might

have been set up.” Cobarrubio replied: “Well, he might have.” Cobarrubio

testified further that in fact she had no information from any source that

Belmontes had been set up but answered as she did because she felt sorry

for Murillo.

8292 BELMONTES v. BROWN

Steven Cartwright testified that he had a conversation with

Belmontes in February 1979 in which Belmontes alluded to

the fact that some people were upset with him. As Belmontes

talked, he indicated that he had a gun in his belt by slapping

his side, and he stated that he was not concerned because he

had all the protection he needed. Ron Cutler, a California

Youth Authority (“CYA”) counselor, testified that he once

observed Belmontes swinging a chair as if he were about to

hit another ward, but Cutler was able to intervene before a

fight ensued. On cross examination, he admitted that Bel-

montes was significantly smaller than the other youth.

Barbara Murillo testified about a domestic violence inci-

dent that occurred when she asked Belmontes to move out of

their shared apartment and to give her his keys so he could not

come back. During the fight that ensued, Murillo, who was

four months pregnant with Belmontes’ second child, grabbed

a “file” for protection and attempted to phone the police, but

Belmontes cut the telephone cord with his knife. Belmontes

pushed her and hit her on the head, at one point causing her

to drop their infant daughter. He tried to choke her, but they

were separated by friends who were present. Murillo fled

through a window, but Belmontes dragged her back to the

vicinity of the apartment. A neighbor eventually summoned

the police, who arrived as Belmontes was leaving the prem-

ises.

Finally, the prosecution and defense stipulated that Bel-

montes entered a plea of no contest in April 1979 to a charge

of being an accessory after the fact to voluntary manslaughter.

The court refused to allow the prosecutor to introduce evi-

dence that Belmontes had actually murdered the victim, Jerry

Howard.4 Consequently, the jury never heard any details of

the murder or Belmontes’ alleged role in it.

4

The prosecutor’s proffer included testimony from an eyewitness who

saw Belmontes shoot Howard, a CYA counselor to whom Belmontes had

confessed that he did so, another individual who saw Howard get into a

car with Belmontes on the evening he was killed, and the police officer

who found the murder weapon at Belmontes’ house.

BELMONTES v. BROWN 8293

Belmontes’ mitigation presentation was also limited in

scope, focusing on two themes: his family and personal his-

tory and his capacity for rehabilitation and positive institu-

tional adjustment. It was primarily the latter theme that

defense counsel pressed upon the jury.

Belmontes’ family history was one of poverty and violence.

His maternal grandfather, Michael Salvaggio, testified to his

daughter’s unhappy marriage to Belmontes’ father. Salvaggio

recounted that his daughter was sixteen when she ran away

from home and married Belmontes’ father, who was unem-

ployed, refused to support his family, drank to excess, and

beat her. Salvaggio said that he was “very close” to his grand-

son until Belmontes was about thirteen but after that had little

contact with him. However, Salvaggio continued, when Bel-

montes was sixteen and his grandmother lay dying in the hos-

pital, he visited her every day; he also attended her funeral.

Carol Belmontes confirmed that her marriage to Bel-

montes’ father was unhappy. Fernando Belmontes, Sr., was a

violent alcoholic who “wouldn’t ever work,” and who beat

her, breaking her arm on one occasion and stabbing her on

another. Belmontes was ten years old when the marriage

broke up. Mrs. Belmontes remarried. That marriage broke up

five years later, when Belmontes was about fifteen, after

which he became difficult to control. Belmontes had not lived

with his mother since he was committed to the CYA two

years before McConnell’s murder. He had a younger brother

and sister, to whom he was “very close.”

Belmontes again testified on his own behalf. He recounted

that he had a poor relationship with his father, who often

came home drunk and hit his mother. He did not like school

and stopped attending in the ninth grade. He wanted to get a

job so that he could help his mother pay the bills. Although

he described his youth as “pretty hard,” he twice stressed that

he did not want to “use it as a crutch.”

8294 BELMONTES v. BROWN

Robert Martinez, a close friend of Belmontes’ since their

early teens, testified that he and Belmontes spent a great deal

of time together, usually working on Martinez’s low-rider car.

Belmontes served as best man at Martinez’s wedding and was

someone he could turn to for advice and support when he

argued with his wife. Martinez also testified that he felt Bel-

montes was not a violent person. However, with defense

counsel’s consent, this testimony was struck following an

objection from the prosecutor, who argued that if this evi-

dence was admitted, the prosecution should be allowed to

impeach Martinez with the evidence regarding the Jerry How-

ard murder.

More important by far was the second mitigation theme—

that Belmontes could lead a positive, constructive life if con-

fined within an institutional setting. The state agrees that Bel-

montes’ counsel, John Schick, presented “substantial

evidence” in support of this theme in the form of a series of

witnesses who testified to Belmontes’ behavior and achieve-

ments during his prior CYA incarceration and to the likeli-

hood that he would make positive contributions to the welfare

of others if his life was spared. Belmontes himself testified

that he was in the custody of the Youth Authority from early

1979 until November 1980, four months prior to the crime.

While at the CYA, he was employed on the fire crew at the

Pine Grove Camp for one year, during which he worked his

way up from last man to number two, a position of leadership

and responsibility. Belmontes also testified that during his

incarceration he became involved in the M-2 Christian spon-

sorship program. He admitted that he initially entered the M-

2 program as a way to get out of camp, but he explained that

he was touched by the decency of his M-2 family, the Haros,

and so gradually became curious about Christianity and

embraced it.

Belmontes continued by saying that he was paroled from

the Youth Authority after serving his maximum sentence; that

he stayed at the halfway house in Oakland for two weeks and

BELMONTES v. BROWN 8295

then went to Southern California for a short period, returning

with Murillo to the Lodi area to take a job with the forest ser-

vice; and that he subsequently moved to Lodi in part so that

he could be close to the Haros. However, outside of the insti-

tution, Belmontes said, he had trouble maintaining his reli-

gious commitment and “started going back to [his] old ways,”

in part due to “pressure on the streets.” At the time of trial,

he had not abandoned his religious beliefs but felt that he was

no longer “dedicated one hundred percent” to his religious

commitment. He testified that he would hope to make positive

contributions to society if he were ordered incarcerated,

though he had little specific idea of how he might do so.

The Reverend Dale Barrett, chaplain at the Youth Authori-

ty’s Pine Grove Facility, testified that he knew Belmontes

from his participation in the M-2 Christian sponsorship pro-

gram, which matched a local church-going family with a

ward, who would be permitted to leave the facility to visit

with the family at specified times each week. Barrett

explained that Belmontes was matched with Beverly and Fred

Haro and participated in the program for about a year. In addi-

tion, Belmontes was baptized during his stay in the CYA.

Only a small percentage of program participants who made a

serious commitment to Christianity were baptized. Barrett felt

that, unlike the many wards who stayed in the program only

to get out of camp and manipulate favors from the sponsoring

families, Belmontes had not “conned” them. Barrett testified

that although he personally believed in the death penalty, he

did not think Belmontes deserved to die because he was a

“salvageable” person with “a lot of extenuating circumstances

in his life.” Barrett was of the view that Belmontes’ involve-

ment in the McConnell murder was attributable to “the enor-

mity of the peer pressure and the kind of sociological

circumstances that were part of his life,” and he thought that

if Belmontes were granted a life sentence, he would make

positive contributions to prison life through his involvement

with the prison ministries.

8296 BELMONTES v. BROWN

Don Miller, assistant chaplain at the Youth Authority’s

Preston Facility and the Northern California Director of the

M-2 program, testified that he helped place Belmontes in a

halfway house in Oakland upon his release from the CYA.

Miller stated that, at the time, he felt “a little bit doubtful”

about Belmontes’ ability to lead a productive life outside of

a highly structured environment, like prison. Miller testified

that Belmontes stayed at the halfway house for only two

weeks before moving to the Lodi area to take a job with the

forest service. During those two weeks, however, Belmontes

returned to Preston on a few occasions to speak to wards

about what life was like “on the outside.” Miller described

Belmontes (and his message) as well-received by the CYA

wards, and he believed that if Belmontes were committed to

prison for a life term, he would be good at counseling other

prisoners not to make the same mistakes that he had. Miller

was enthusiastic about working with Belmontes in this capac-

ity and stated that Belmontes “definitely would be used in the

prison system for this kind of activity” because he related well

to other prisoners, especially those who shared his ethnic

background, and because these kinds of programs were “at the

present time the only solution” to the troubling problem of

recidivism among prisoners.

Finally, several witnesses offered evidence with respect to

Belmontes’ conversion to Christianity, which occurred during

his first CYA incarceration, and his failure to maintain his

religious commitment upon his release. Martinez’s wife Dar-

lene, a born-again Christian, testified that she had known Bel-

montes for six or seven years and considered him a close

friend. Darlene recounted that when Belmontes visited them

after his release from the Youth Authority, he told her that he

was a born-again Christian. He also mentioned his disputa-

tious relationship with his girlfriend, Murillo, and mentioned

that he was planning to move in with her. During the conver-

sation, Belmontes expressed concern that Murillo was not a

Christian, and he worried that he would be unable to maintain

his Christian faith on his own.

BELMONTES v. BROWN 8297

Beverly and Fred Haro, Belmontes’ M-2 sponsors and

members of Reverend Barrett’s church, testified that Bel-

montes spent Wednesday evenings and weekends with them

for almost a year. They felt they had a good relationship with

Belmontes, who attended church with them. They treated him

like their own son, and he opened up to them and was a good

influence on their own teenage son. They saw him several

times after his release from the CYA. Fred Haro stated that he

had “compassion as a son” for Belmontes and that Belmontes

had been genuine in his commitment to the M-2 program and

his affection for his sponsors. Beverly Haro felt that Barbara

Murillo was a “definite negative factor” in Belmontes’ life.

At the conclusion of the evidentiary stage, the court permit-

ted Belmontes to address the jury personally during closing

arguments. Belmontes stated that he did not think that his dif-

ficult childhood excused his role in the McConnell murder.

However, he explained that he could not handle the pressures

of life outside of an institution, and he asked the jury to give

him “an opportunity to achieve goals and try to better

[him]self.” Belmontes’ attorney similarly stressed that Bel-

montes could not “make it on the outside.” He argued that

Belmontes had had a hard life but still retained his humanity.

He characterized Belmontes as someone who thrived in a

structured environment—as evidenced by his accomplish-

ments while in the CYA—and asked the jury to spare Bel-

montes’ life on the ground that he would make positive

contributions if allowed to live out his natural life in prison.

The judge instructed the jury according to the then-standard

model jury instructions, which directed the jury to consider as

mitigating evidence the defendant’s age, criminal history, and

“[a]ny other circumstance which extenuates the gravity of the

crime even though it is not a legal excuse for the crime.” In

addition, the judge read a portion of a supplemental instruc-

tion requested by the defense, which stated that the jury

should view the statutory factors “merely as examples of

some of the factors” that it could consider, that the jury

8298 BELMONTES v. BROWN

“should pay careful attention to each of these factors,” and

that “any one of them standing alone” could support a life

sentence. The trial judge refused to read the most important

part of the requested instruction, which stated: “ “[Y]ou

should not limit your consideration of mitigating circum-

stances to these specific factors. You may also consider any

other circumstances . . . as reasons for not imposing the death

sentence.” The jury was not informed that it should consider

mitigating evidence bearing on Belmontes’ probable future

conduct if sentenced to life in prison without the possibility

of parole. Shortly after Belmontes’ trial, the California legis-

lature revised the model jury instructions to make clear that

the jury must consider any aspect of the defendant’s character

or record offered as a basis for a sentence less than death,

“whether or not related to the offense for which he is on trial.”

CALJIC 8.85(k) (6th ed. 1996).

The jury deliberated for a day and a half before reaching a

verdict. On the first day, after several hours of deliberations,

the jury sent the judge a note asking, “What happens if we

cannot reach a verdict?” and “Can the majority rule on life

imprisonment?” The jury was brought back to the courtroom,

and the judge reread a portion of the jury instructions, empha-

sizing that “all 12 jurors must agree, if you can.” The trial

judge refused to tell the jurors what would happen if they

could not agree.

The trial judge emphasized that if the jurors “[went] over

the instructions again with one another,” they might find it

easier to reach agreement. The jurors then asked the judge to

clarify the instructions on the weighing of the aggravating and

mitigating factors. One juror asked the trial judge whether the

jury was supposed to take each listed (i.e., statutory) factor,

decide whether it was aggravating or mitigating, and then

“balance the sheet.” Rather than instruct the jurors that it was

their duty to consider and, if appropriate, give effect to, all of

the mitigating evidence presented by the defendant, whether

comprehended by one of the statutory factors or not, the trial

BELMONTES v. BROWN 8299

judge responded simply, “That is right,” even though no statu-

tory factor comprehended the element of rehabilitation.

Shortly thereafter, another juror asked whether it was possible

for Belmontes to receive psychiatric treatment while in

prison. The trial judge responded, “That is something you

cannot consider in making your decision.” Following this col-

loquy, the jury returned a death sentence.

D. Post-Trial

The California Supreme Court affirmed Belmontes’ convic-

tion and sentence in 1988, People v. Belmontes, 45 Cal. 3d

744 (1988), and the U.S. Supreme Court denied certiorari in

early 1989. Belmontes then filed a petition for writ of habeas

corpus in the United States District Court for the Eastern Dis-

trict of California, which was held in abeyance while Bel-

montes exhausted state remedies.

Belmontes filed a state habeas petition and received a stay

of execution from the California Supreme Court. The Califor-

nia courts summarily dismissed Belmontes’ petition, refusing

him compulsory process and denying him an evidentiary hear-

ing on any of his claims. The California Supreme Court

finally denied relief in 1992.

In 1993, proceedings on the federal writ commenced before

a magistrate judge. In 1996, he denied Belmontes’ request for

an evidentiary hearing on certain claims but granted his

motion to expand the record to include depositions, declara-

tions, and reports submitted by the parties. The parties filed

cross motions for summary judgment. In 2000, the district

court withdrew the referral from the magistrate judge and, in

August of that year, denied relief on all claims except six that

had not yet been briefed. The court referred those six claims

to the magistrate judge for a recommendation. In January

2001, the magistrate judge recommended denying the out-

standing claims, and in May 2001, the district court adopted

the magistrate’s findings and recommendations, denied the

8300 BELMONTES v. BROWN

petition, and entered judgment against Belmontes. The district

court issued a Certificate of Appealability for fifteen constitu-

tional claims. This appeal timely followed.

IV. STANDARD OF REVIEW

Because Belmontes filed his habeas petition prior to

AEDPA’s effective date, we apply pre-AEDPA standards of

review. Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003).

State court factual findings are presumed correct unless one

of eight enumerated exceptions applies. See 28 U.S.C.

§ 2254(d) (1994). The application of law to historical facts is

reviewed de novo. Thompson v. Borg, 74 F.3d 1571, 1573

(9th Cir. 1996).

V. GUILT PHASE ISSUES

A. Giglio and Napue Claims

Belmontes alleges that the state deprived him of due pro-

cess by failing to disclose that Bolanos had several misdemea-

nor charges and that the prosecutor personally helped him

achieve favorable dispositions on those charges. In a closely

related claim, he contends that the prosecutor violated due

process by failing to correct Bolanos’ false and misleading

testimony that he had never been “busted” before his arrest

for the McConnell murder.

1. Factual Background

On the Wednesday morning before the murder, Bolanos

drove into a traffic signal on his way home from McConnell’s

house. A police officer witnessed the accident. After flunking

a field sobriety test, Bolanos was taken into custody and

charged with various misdemeanor driving offenses, includ-

ing DUI and hit-and-run.

One week later, Bolanos was charged with first degree

murder for his role in the McConnell murder. He soon entered

BELMONTES v. BROWN 8301

into an agreement in which he pled guilty to second-degree

burglary in exchange for testifying against Vasquez and Bel-

montes. He was granted immunity for his testimony and his

sentence was left to the court’s discretion. He received no

explicit promises of leniency from the prosecution.

After Bolanos pled guilty to the burglary, he obtained a

string of unusually favorable dispositions on several traffic

offenses. First, with respect to the DUI/hit-and-run charges,

his attorney appeared in municipal court along with Clark

Sueyres, the district attorney who was prosecuting the case

against Belmontes. On Sueyres’ motion, the charges were dis-

missed in the interest of justice. Next, later that year, Bolanos

was cited for driving an unregistered vehicle and driving with

a suspended license. He was allowed to plead guilty to the

lesser charge of driving without a valid license and assessed

a $100 fine; the court dismissed the unregistered vehicle

charge. The following April, Bolanos was again cited for

driving an unregistered vehicle, driving with a suspended

license, operating an unsafe vehicle, and driving with worn

tires. Again, Sueyres personally asked the municipal court to

dismiss the charges in the interest of justice. Bolanos, once

again, pled guilty to driving without a valid license and paid

a $75 fine. None of these matters was disclosed to the

defense.

At trial, Bolanos admitted on cross examination that he was

testifying under court order in exchange for a grant of immu-

nity and that he would face a murder charge if he refused to

testify. However, Schick’s efforts to impeach Bolanos were

hampered by the fact that Bolanos continually minimized both

his own culpability and the benefits he received from the

prosecution in exchange for his testimony. For example,

Bolanos told the jury that his motive in testifying was “to tell

the truth,” and he stated that because he “wasn’t even around

when the crime happened,” he did not view the grant of

immunity as a particular favor.

8302 BELMONTES v. BROWN

In addition, Bolanos was less than truthful when he testified

about his prior contacts with law enforcement. When Schick

questioned Bolanos about prior inconsistent statements that

Bolanos had made to the police, Bolanos explained them by

saying that he had made mistakes out of nervousness because

it was “the first time I got busted.” In fact, Bolanos had been

“busted” twice before. In addition to the DUI/hit-and-run inci-

dent, Bolanos had previously been arrested for gun possession

by Detective Holman, the same officer who arrested him for

the McConnell murder. The arrest generated formal criminal

charges, and Bolanos was sentenced to thirty days in a juve-

nile facility, of which he served fifteen.

2. Giglio Claim

The prosecution has an affirmative duty to turn over to the

defense all evidence favorable to the accused, including

impeachment evidence. Kyles v. Whitney, 514 U.S. 419, 432

(1995); Giglio v. United States, 405 U.S. 150,154 (1972). The

failure to disclose favorable evidence violates due process

when the evidence is material. United States v. Bagley, 473

U.S. 667, 678 (1985); Singh v. Prunty, 142 F.3d 1157, 1161

(9th Cir. 1998). Evidence is material if there is a reasonable

probability that, had it been disclosed to the defense, the out-

come of the trial would have been different. Bagley, 473 U.S.

at 682. A reasonable probability occurs when the suppression

“undermines confidence in the outcome of the trial.” Kyles,

514 U.S. at 434 (internal quotation marks omitted).

Belmontes argues that the prosecutor violated due process

by failing to turn over material impeachment evidence con-

sisting of the existence and unusual disposition of Bolanos’

misdemeanor traffic offenses. The state responds that the

prosecutor had no duty to disclose this evidence because the

misdemeanor violations were not mentioned in the plea agree-

ment and were not dismissed as consideration for Bolanos’

testimony against Belmontes. In support of this argument, the

state cites the deposition testimony of both Bolanos and his

BELMONTES v. BROWN 8303

attorney to the effect that they did not perceive the dismissal

of the traffic offenses as related to the immunity deal.

[1] The state’s argument is without merit. We have held

that when the state relies on the testimony of a criminal infor-

mant, it has an obligation to disclose “all information bearing

on that witness’s credibility,” including “the witness’s crimi-

nal record . . . and any information therein which bears on

credibility.” Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.

1997). We further emphasized the importance of this rule in

Benn v. Lambert, in which we held that “the state cannot sat-

isfy its Brady obligation to disclose exculpatory and impeach-

ment evidence by making some evidence available and

asserting that the rest would be cumulative. Rather, the state

is obligated to disclose all material information casting a

shadow on a government witness’s credibility.” 283 F.3d

1040, 1057-58 (9th Cir. 2002) (internal quotation marks omit-

ted). Here, the fact that the prosecutor personally appeared in

municipal court to argue for favorable dispositions of

Bolanos’ misdemeanor traffic offenses casts a shadow on

Bolanos’ credibility regardless of whether such intervention

was mentioned in the plea agreement or offered as consider-

ation for Bolanos’ testimony. Had defense counsel known

about the existence and disposition of the misdemeanor

offenses, he could have impeached Bolanos by showing that

he had a motive to say what the prosecution wanted to hear

in hopes of obtaining a lighter sentence on his plea to second

degree burglary. Even though Bolanos was not explicitly

promised leniency, the fact that the prosecutor helped Bolanos

obtain dismissals or reduced punishments on his traffic misde-

meanors makes it more likely that he would intercede on

Bolanos’ behalf when it came time for sentencing on the bur-

glary charge. Thus, the evidence was clearly relevant and

admissible for purposes of impeachment, and the district

attorney should have disclosed it.

[2] Nevertheless, we hold that Belmontes’ Giglio claim

fails because, under the particular facts and circumstances of

8304 BELMONTES v. BROWN

this case, the undisclosed evidence was not material. This

case presents different circumstances from those in Benn, in

which we held that the prosecutor’s dispensation of similar

favors on behalf of his star witness—including quashing a

traffic ticket, dismissing a burglary charge, and postponing

the filing of an arrest warrant until after Benn’s trial—were

material benefits. Id. In Benn, we held that the failure to dis-

close these benefits necessitated a new trial, even though the

prosecutor disclosed that he had made a deal with the infor-

mant to seek a reduced sentence in exchange for his testimony

against Benn, and defense counsel impeached the informant

on this point. Id.

Aside from the fact that the undisclosed benefits in Benn

may well have been more substantial than those at issue here,

Benn is distinguishable for three reasons. First, Bolanos was

actually involved in the McConnell murder, whereas the

informant in Benn was a jailhouse snitch. Evidence that a jail-

house snitch received material benefits from the prosecution

is especially important because without that evidence the

informant masquerades as a disinterested observer. See United

States v. Bernal-Obeso, 989 F.2d 331, 333-34 (9th Cir. 2002)

(describing practice of relying on criminal informants as

“fraught with peril”). In this case, however, Bolanos was

cross-examined extensively as to his role in the crime and the

details of his immunity agreement, so the jury could not pos-

sibly have viewed him as disinterested. Second, the impeach-

ment evidence that was disclosed in Benn was relatively

trivial; although the informant received sentencing leniency in

his unrelated case, the leniency saved him only thirty-five

days of jail time. Benn, 283 F.3d at 1057. Accordingly, “the

number and nature of the undisclosed benefits was such that

they would have impeached [the witness] more effectively”

than the benefits that were disclosed. Id. at 1058. By contrast,

in the present case the impeachment evidence that was dis-

closed was substantial: an agreement allowing Bolanos to

plead guilty to second-degree burglary and receive immunity

for the murder in exchange for his testimony. Finally, in Benn

BELMONTES v. BROWN 8305

the prosecutor effectively downplayed the importance of the

impeachment evidence in his closing argument. Id. (quoting

prosecutor’s argument that “[t]he reward he got was that in a

6 to 12 month sentence, he got six months instead of nine

months. Big reward.”). In this case, however, the prosecutor

argued that the jury should view Bolanos’ testimony criti-

cally, and the jury was so instructed. For these reasons, we

conclude that Benn does not control our analysis here.

[3] Here, the undisclosed benefits were not material

because there is not a reasonable probability that the outcome

of the trial would have been different if defense counsel had

known about them. In making this judgment, we realize that

Belmontes need not pass a sufficiency of the evidence test.

Kyles, 514 U.S. at 434. “However, our fundamental concern

remains whether there exists a reasonable probability that

given disclosure of the evidence of benefits to [the witness],

one or more members of the jury would have viewed [his] tes-

timony in a different light.” Singh, 142 F.3d at 1163. In this

case, Bolanos was impeached with his immunity agreement,

including the fact that the charges filed against him were sub-

stantially lower than the evidence would have warranted. The

withheld evidence would not have added much, if anything.

Moreover, Bolanos’ testimony was corroborated by that of

several other witnesses, including disinterested witnesses like

Lucy Flores and Barbara Murillo, who were not involved in

the crime or related to the codefendants. Belmontes’ testi-

mony to the contrary was uncorroborated and did not hold up

well under cross examination. Had Bolanos’ testimony been

less well-supported or the undisclosed benefits been greater,

or had the prosecutor not urged and the judge not instructed

the jury to view his testimony with suspicion, we might con-

ceivably have reached a different conclusion. Nevertheless,

given the extent of the corroborating evidence, the relative

unimportance of the undisclosed benefits as compared to

those that were disclosed, and the nature of the prosecutor’s

statement, we cannot say that the jury would have viewed

Bolanos’ testimony in a different light had it known that the

8306 BELMONTES v. BROWN

prosecutor had helped him to quash his misdemeanor traffic

offenses or obtain lighter punishment on them. In short, the

undisclosed benefits do not undermine our confidence in the

verdict. In these circumstances, we hold that the withheld evi-

dence was not material, and the claim must, therefore, be

denied.

3. Napue Claim

Belmontes also argues that the prosecution violated his due

process rights by failing to correct Bolanos’ false assertion

that he had never been “busted” before. The prosecutor has an

independent, constitutional duty to correct testimony he

knows to be false. Napue v. Illinois, 360 U.S. 264, 269-70

(1959); N. Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir.

2001). If there is “any reasonable likelihood that the false tes-

timony could have affected the judgment of the jury,” the

conviction must be set aside. United States v. Agurs, 427 U.S.

97, 103 (1976).

The state argues that the prosecution had no duty to correct

the record because defense counsel was notified of the drunk-

driving arrest at a pretrial hearing. Whether defense counsel

is aware of the falsity of the statement is beside the point. The

state overlooks the fact that the prosecutor’s duty to correct

false testimony arises, not simply out of a duty of fairness to

the defendant, but out of “the free standing constitutional duty

of the State and its representatives to protect the system

against false testimony.” Bowie, 243 F.3d at 1118. Therefore,

regardless of whether defense counsel should have known that

a state witness testified falsely, “[a] prosecutor’s ‘responsibil-

ity and duty to correct what he knows to be false and elicit the

truth,’ Napue, 360 U.S. at 269-70, 79 S. Ct. 1173, requires

[him] to act when put on notice of the real possibility of false

testimony.” Id.

The state also contends that the prosecution had no duty in

this case because the word “busted” is ambiguous, and there-

BELMONTES v. BROWN 8307

fore Bolanos may not have testified falsely at all. We do not

find the word “busted” to be ambiguous. See Webster’s New

World Dictionary 189 (3d college ed. 1988) (defining “bust”

as “to arrest”). In this case, the prosecutor knew that Bolanos

had been “busted” twice before: once for DUI/hit-and-run and

once for gun possession. He had an independent duty to cor-

rect the false testimony and elicit the truth.

If there were any reasonable likelihood that Bolanos’ false

testimony could have affected the judgment of the jury, we

would be compelled to grant the petition with respect to this

claim. Belmontes argues that a reasonable likelihood exists,

pointing to the fact that the “first time I got busted” comment

arose at a crucial part of defense counsel’s cross-examination.

Bolanos used this false statement to explain his prior inconsis-

tent statements on two critical points: the length of time

Vasquez spent in the house and the alleged knocking noise

that Bolanos heard when he got out of the car to open the

trunk. He stated that he was nervous when he made the prior

inconsistent statements to the officer because he had never

been busted before. The testimony that was inconsistent was

important because it tended to incriminate Belmontes and

exculpate Vasquez by suggesting that McConnell was killed

before Vasquez entered the house; it also was not directly cor-

roborated by any other witness. Conceivably, if the jury knew

that Bolanos had lied when trying to explain his prior incon-

sistent statements on these points, it could have concluded

that Bolanos was lying about the timing and the knocking

noise, either to please the prosecution or to protect Vasquez.

The jury then would have been more likely to believe Bel-

montes’ testimony that Vasquez was the actual killer.

Ultimately, however, we do not believe that Bolanos’ false

testimony regarding the absence of prior arrests could have

affected the judgment of the jury. As we explained, his testi-

mony regarding the events surrounding the murder was in

most respects corroborated by independent witnesses. Fur-

thermore, the most damaging testimony of the trial came from

8308 BELMONTES v. BROWN

Belmontes himself. On cross-examination, Belmontes con-

ceded that for his version of events to be true, Vasquez would

have had to have come directly from the car to the door with-

out attempting to open the trunk, and there is direct evidence

to the contrary from a disinterested eyewitness. Moreover,

Belmontes refused to say that he had seen or heard Vasquez

hitting McConnell, and he could not explain how Vasquez

would have had enough time to both murder McConnell and

ransack the front bedroom. Finally, Belmontes, but not

Vasquez, had blood sprinkled on his clothes and shoe. On this

record, we hold that there is no reasonable likelihood that

Bolanos’ false testimony that his arrest in connection with the

McConnell murder was “the first time I got busted” would

have affected the judgment of the jury. We therefore deny

relief on this claim.

B. Conflict of Interest

Belmontes contends that he was deprived of due process

and the effective assistance of counsel due to a conflict of

interest arising from Schick’s multiple prior representations of

Vasquez. See Cuyler v. Sullivan, 446 U.S. 335 (1980). At the

heart of the claim is the allegation that Schick, because of the

conflict of interest, did not offer evidence of Vasquez’s vio-

lent criminal history in support of his defense theory that

Vasquez was the actual killer.5 Belmontes argues that this evi-

dence was relevant and admissible for two purposes: first, to

show that Vasquez was, in fact, the actual killer; and second,

5

Belmontes also argues that the trial judge independently violated his

due process rights by failing to inquire adequately into the conflict and

failing to advise Belmontes about the nature and consequences of the con-

flict. We do not address this claim because Belmontes cannot prevail on

it without showing that Schick labored under an actual conflict of interest

that adversely affected his defense, a showing Belmontes cannot make for

the reasons explained hereafter. Mickens v. Taylor, 535 U.S. 162 (2002)

(extending Cuyler burden of proof to situations in which trial judge failed

to inquire into conflict about which he knew or reasonably should have

known).

BELMONTES v. BROWN 8309

to impeach Bolanos’ credibility by showing that his fear of

retaliation by Vasquez caused him to place the blame on Bel-

montes, rather than on the true murderer.

1. Factual Background

During pretrial proceedings, Vasquez’s attorney brought a

motion to recuse Schick as counsel for Belmontes. The

motion was based on the fact that Schick’s law firm had rep-

resented Vasquez in a 1979 murder case; Vasquez’s attorney

feared that Schick had confidential information that he would

use against Vasquez as part of his defense theory that

Vasquez was the actual killer.6 Schick opposed the motion

and filed a declaration in which he stated: (1) the attorney

who represented Vasquez in 1979 had since left the firm; (2)

the case against Vasquez was dismissed prior to trial; (3) he

himself had acquired no confidential communications from

Vasquez; and (4) the case file had been destroyed eight

months earlier. The trial judge held a hearing and, based on

these facts, denied the motion. The judge asked Belmontes if

he wished to retain Schick as his lawyer, knowing that

Schick’s firm had previously represented Vasquez. Belmontes

said that he did.

In postconviction proceedings, Belmontes’ attorneys

learned that Schick’s connection to Vasquez was, in fact,

much more extensive than he had disclosed to either Bel-

montes or the trial court. Prior to entering private practice,

Schick and the members of his criminal defense firm had

worked at the local public defenders’ office. There, Schick

and the members of his firm represented Vasquez on three

occasions in addition to the 1979 murder charge. In August

6

Earlier, Vasquez’s counsel had successfully moved to recuse Schick’s

investigator. This investigator had previously worked on Vasquez’s 1979

murder case, and at the time of Belmontes’ trial he worked part-time in

the public defender’s office, which represented Vasquez in the McConnell

murder.

8310 BELMONTES v. BROWN

1974, Schick had himself represented Vasquez on a gun pos-

session charge; he had helped Vasquez negotiate a guilty plea.

In November 1974, Patrick Riddle, a partner in Schick’s law

firm, had represented Vasquez on a rape charge.7 In January

1976, Douglas Jacobsen, the third partner in Schick’s firm,

had represented Vasquez in a purse-snatching case that went

to jury trial. Schick did not notify Belmontes or the court of

these incidents of representation even though he remembered

them at the time of the recusal motion.

In 1994, Schick signed another declaration with respect to

the conflict of interest claim. In that declaration, he averred

that at the time of the recusal motion, he saw no relationship

between any of Vasquez’s prior cases and the McConnell

murder. He asserted that his representation of Belmontes was

not inhibited by his prior representation of Vasquez and that

his loyalty to Belmontes was complete and undivided. Schick

stated that he considered calling Vasquez as a witness and

would have been prepared to cross examine him fully had he

taken the stand. However, he also admitted that he did not

investigate Vasquez’s violent criminal history even though

doing so would have been helpful to Belmontes’ defense.

Schick stated that he did not make a tactical decision not to

pursue this investigation. He explained that his normal proce-

dure is to investigate the criminal record of a potential wit-

ness; however, he did not consider Vasquez a potential

witness until after he had entered a guilty plea.

Schick testified at his deposition that he knew that he had

a continuing duty of loyalty to Vasquez, but he did not view

Belmontes’ defense as conflicting with that duty in any way.

However, Schick admitted that he knew that the district attor-

ney could revive the 1979 murder charge against Vasquez at

any time (although he also stated that it never crossed his

mind that the prosecution would do so as a result of any evi-

7

Schick avers that he was not aware of this case at the time he repre-

sented Belmontes.

BELMONTES v. BROWN 8311

dence Schick presented at Belmontes’ trial). In addition,

Schick recognized that even though Vasquez entered his

guilty plea prior to Belmontes’ trial, Vasquez had an ongoing

liberty interest in being viewed as an aider and abettor in the

McConnell murder, and not the actual killer.

2. Discussion

At the outset, we dispose of the state’s procedural objec-

tions to the claim. The state first contends that the claim is

unexhausted because Belmontes did not present to the Cali-

fornia Supreme Court all of the facts underlying the claim.

This argument fails because “new factual allegations do not

render a claim unexhausted unless they ‘fundamentally alter

the legal claim already considered by the state courts.’ ” Cha-

con v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994) (quoting

Vasquez v. Hillery, 474 U.S. 254, 260 (1986)). Here, although

the additional facts add some evidentiary support to the claim,

they do not “fundamentally alter” it. See Weaver v. Thomp-

son, 197 F.3d 359, 364 (9th Cir. 1999) (holding that jury mis-

conduct claim was properly exhausted when petitioner

presented incidents of improper jury contact that differed in

number, but not in kind, from what was presented to state

courts). The essential factual and legal theories are the same

as those presented to the California courts. Therefore, Bel-

montes adequately exhausted the claim.

Next, the state argues that the claim is barred by the Teague

nonretroactivity doctrine. See Teague v. Lane, 490 U.S. 1031

(1989). The government bases this argument on the Supreme

Court’s recent statement that, as far as its own precedent is

concerned, the question whether Cuyler extends to cases of

successive representation is still open. Mickens v. Taylor, 535

U.S. 162, ___, 122 S. Ct. 1237, 1246 (2002). However, we

have held that circuit court holdings suffice to create a

“clearly established” rule of law under Teague. Bell v. Hill,

190 F.3d 1089, 1091 (9th Cir. 1999). In this circuit, it was

well-established at the time that Belmontes’ conviction

8312 BELMONTES v. BROWN

became final that conflicts of constitutional magnitude can

arise from cases of successive representation. See, e.g., Mann-

halt v. Reed, 847 F.2d 576, 579 (1988); United States v.

Wheat, 813 F.2d 1399, 1402 & n. 1 (9th Cir. 1987), aff’d on

other grounds, 486 U.S. 153 (1988). Accordingly, the conflict

claim is not Teague-barred.

We also hold that Belmontes’ purported waiver of the con-

flict of interest was invalid. “For a waiver to be knowing and

intelligent, the defendant must have been sufficiently

informed of the consequences of his choice.” Lockhart v. Ter-

hune, 250 F.3d 1223, 1232 (9th Cir. 2001) (internal quotation

marks and citations omitted). Here, Schick failed to inform

Belmontes or the court of the extent of his prior relationship

with Vasquez. In addition, neither Schick nor the trial judge

explained to Belmontes that Schick owed a continuing duty of

loyalty to Vasquez, a duty that could potentially conflict with

Belmontes’ defense theory—that Vasquez was McConnell’s

actual killer. Under these circumstances, we conclude that

Belmontes was not sufficiently informed of the consequences

of his choice, and his waiver was therefore invalid. See Lock-

hart, 250 F.3d at 1252-53, citing United States v. Curcio, 680

F.2d 965, 976-77 (8th Cir. 1982) (holding that waiver was

ineffective when the defendant was informed of possible con-

flict due to attorney’s prior representation of codefendant and

told that conflict may arise from prior confidential communi-

cations, but not told that conflict may arise from attorney’s

continued loyalty to codefendant).

[4] To establish a Sixth Amendment violation based on

conflict of interest, the defendant must show that an actual

conflict of interest adversely affected his lawyer’s perfor-

mance. Cuyler, 446 U.S. at 338; Mannhalt, 847 F.2d at 579.

Generally, it is more difficult to demonstrate an actual conflict

resulting from successive, rather than simultaneous, represen-

tation. Mannhalt, 847 F.2d at 580. Conflicts of interest based

on successive representation may arise if the current and for-

mer cases are substantially related, if the attorney reveals

BELMONTES v. BROWN 8313

privileged communications of the former client, or if the attor-

ney otherwise divides his loyalties. Id. Ultimately, however,

an actual conflict of interest is one “that affected counsel’s

performance—as opposed to a mere theoretical division of

loyalties.” Mickens, 122 S. Ct. at 1243. In other words, the

simple “possibility of conflict is insufficient to impugn a

criminal conviction.” Cuyler, 446 U.S. at 350.

We must decide whether the potential conflict of interest

engendered by Schick’s prior representation of Vasquez rip-

ened into an actual conflict. We begin by noting that there is

no suggestion that Vasquez’s prior cases were substantially

related to the McConnell murder or that Schick was in posses-

sion of privileged communications from Vasquez. Therefore,

if Belmontes is to demonstrate an actual conflict, he must

show that Schick “divide[d] his loyalties” between Vasquez

and Belmontes. Fitzpatrick v. McCormick, 869 F.2d 1247,

1252 (9th Cir. 1989), citing Mannhalt, 847 F.2d at 580. In

engaging in this inquiry, we look beyond Schick’s protesta-

tions to the contrary to see whether independent evidence in

the record supports the allegation of divided loyalties. United

States v. Shwayder, 312 F.3d 1109, 1119 (9th Cir. 2002)

(“Human self-perception regarding one’s own motives for

particular actions in difficult circumstances is too faulty to be

relied upon, even if the individual reporting is telling the truth

as he perceives it.”); Sanders v. Rawtelle, 21 F.3d 1446, 1452

(9th Cir. 1994) (“The existence of an actual conflict cannot be

governed solely by the perceptions of the attorney; rather, the

court itself must examine the record to discern whether the

attorney’s behavior seems to have been influenced by the sug-

gested conflict.”).

[5] After a careful examination of the record, we find no

evidence that Schick divided his loyalties between Vasquez

and Belmontes. Indeed, Belmontes’ entire defense was that

Vasquez was the killer. This case is thus distinguishable from

cases like Lockhart, Sanders, and Fitzpatrick, all of which

addressed situations in which defense counsel sabotaged their

8314 BELMONTES v. BROWN

current clients’ case by refusing to raise the obvious defense

that a former client was actually responsible for the murder.

See Lockhart, 250 F.3d at 1230-31 (where the evidence

showed that the same person had committed both an earlier

murder and the murder for which defendant was on trial,

defendant’s trial counsel refused to present evidence that his

former client had committed the earlier murder); Sanders, 21

F.3d at 1453 (defense counsel successively represented two

brothers who were accused of the same murder; the first

brother confessed his guilt to defense counsel, who advised

him to take the Fifth at his brother’s trial; at the trial, defense

counsel put forth an unconvincing alibi defense rather than

evidence that the first brother had committed the murder);

Fitzpatrick, 869 F.2d at 1251-52 (defense counsel refused to

present defense that a former client actually committed the

murder; because of the prior attorney-client relationship,

defense counsel believed in the former client’s innocence to

the detriment of his current client).

Belmontes argues nevertheless that an actual conflict of

interest affected Schick’s performance at his trial. According

to Belmontes, even though Schick argued that Vasquez was

the killer, he failed to support this theory with hard evidence.

Belmontes asserts that Schick should have investigated

Vasquez’s lengthy criminal record and presented it as evi-

dence that Vasquez was the actual killer. He also asserts that

Schick should have impeached Bolanos by showing that he

was in fear for his life due to death threats issued by Vasquez

and thus had a powerful motive to falsely shift the blame from

Vasquez to Belmontes. Belmontes argues that the only possi-

ble explanation for these lapses on Schick’s part is that he felt

bound by a continuing duty of loyalty to Vasquez, and that

this duty required him to refrain from presenting evidence that

could have resulted in the revival of the 1979 murder prosecu-

tion or impaired Vasquez’s prospects for an early parole on

his second degree murder conviction in the current case.

[6] We are of the view, however, that these alleged failings

are too speculative to sustain a conflict of interest claim. This

BELMONTES v. BROWN 8315

is not a case in which Schick failed to present evidence that

went directly to Vasquez’s—and therefore Belmontes’—guilt

or innocence. Rather, Schick sought squarely to place the

blame on Vasquez, and did not overlook any direct evidence

on that point. He simply failed to investigate and present evi-

dence of Vasquez’s prior bad acts, which, if admissible, might

have marginally affected whether a jury would have had a

reasonable doubt as to Belmontes’ guilt. Given the absence of

evidence suggesting that Vasquez was the actual killer and

given the damaging nature of Belmontes’ own conflicting

statements, any counsel might have failed to investigate and

offer evidence regarding Vasquez’s criminal history. In short,

we hold that this failure, standing alone, is not enough to

show that Schick divided his loyalties between Vasquez and

Belmontes. It is not “likely” that a conflict caused Schick to

handle Belmontes’ case as he did. See United States v. Mis-

kinis, 966 F.2d 1263, 1268 (9th Cir. 1992). Thus, Belmontes

has not shown that he was deprived of his Sixth Amendment

rights by an actual conflict of interest.

C. Involuntary Statement

Belmontes argues that the prosecutor violated his due pro-

cess rights by introducing into evidence his involuntary,

inculpatory statements. However, Belmontes testified in his

deposition that he spoke to the police freely and voluntarily.

There was no due process violation here.

D. Counsel’s Failure to Challenge Arrest Warrant

Belmontes claims that his trial counsel was constitutionally

ineffective for failing to challenge his arrest warrant. He

argues that the warrant in his case was facially insufficient to

support a finding of probable cause because nothing in the

warrant corroborated the allegation that Belmontes himself, as

opposed to Bolanos, was involved in the crime.8

8

The warrant reads:

Detective Elbert Holman, San Joaquin County Sheriff’s Office,

8316 BELMONTES v. BROWN

1. Strickland Claim

In order to prevail on his ineffectiveness claim, Belmontes

must show that: (1) his trial counsel’s performance fell below

an objective standard of reasonableness; and (2) there is a rea-

sonable probability that, but for counsel’s unprofessional

errors, the results of the proceeding would have been differ-

ent. Strickland v. Washington, 466 U.S. 668, 686 (1984). To

will testify that: he responded to 17281 N. Sunrise St. Victor, CA

on 3/15/81 in the early afternoon. The house was ransacked.

Deputy St. Sure will testify he was the first deputy Sheriff to

arrive at 17281 N. Sunrise. Steacy McConnell was on the floor

being administered to by medical personnel. Steacy McConnell

subsequently died.

Dr. Madieros did the autopsy on Steacy McConnell. The cause

of death was blunt trauma to the head.

Bob Bolanos, after being advised of his Miranda rights, waived

those rights and told Detective the following: That he went to the

home of Domingo Vasquez, Jr. He was with Fernando Delmontes

on 3/15/81. While at the Vasquez house, Vasquez called Steacy

McConnell. Thereafter, the three of them talked about the fact

that Steacy possessed some expensive property at her residence.

Fernando Delmontes said he needed money to send to his wife

in Los Angeles. Delmontes decided to burglarize the McConnell

residence after Vasquez told them McConnell would not be

home. Vasquez and Bolanos agreed to go with Delmontes.

Bolanos drive them to McConnell’s in his car. Upon arriving in

the vicinity, Delmontes got out, carrying an iron bar he had

brought with him from Vasquez’s house.

Delmontes told Bolanos to wait in the car for 30 minutes, then

to drive to McConnell’s and get him.

When they drove to McConnell’s, they opened the trunk, and

Vasquez went into the house. Vasquez carried stereo speakers

from the house to the car trunk. Delmontes followed Vasquez out

with the receiver portion of the stereo. Delmontes was splattered

with blood. Vasquez was not. Delmontes said McConnell was in

the house, and when Bolanos drove up, he beat her with the iron

bar. The stereo was later sold, and the proceeds divided.

BELMONTES v. BROWN 8317

satisfy Strickland’s prejudice prong in a Fourth Amendment

context, Belmontes must demonstrate a reasonable probability

that a motion to suppress would have succeeded and that the

suppression of the warrant would have led to a different out-

come at the trial. Kimmelman v. Morrison, 477 U.S. 365, 375

(1986). The reasonableness of counsel’s performance is eval-

uated from counsel’s perspective at the time of the alleged

error. See id. at 384.

At the time of Belmontes’ trial, the federal Aguilar-Spinelli

test applied to affidavits supporting warrant applications.

Aguilar-Spinelli did not require independent corroboration of

the facts set forth in the affidavit. Rather, under Aguilar-

Spinelli, the affidavit on its face had to provide enough infor-

mation so that a magistrate could determine: (1) that the infor-

mant was reliable (the “veracity” prong); and (2) that his

information was dependable (the “basis of knowledge”

prong). Spinelli v. United States, 393 U.S. 410 (1969); Agui-

lar v. Texas, 378 U.S. 108, 114 (1964); United States v.

Larkin, 510 F.2d 13, 15 (9th Cir. 1974). Under federal law,

the affidavit met both prongs. Because the affidavit stated that

Bolanos acquired his information through first-hand observa-

tion, it satisfied the “basis of knowledge” prong, Aguilar, 378

U.S. at 114, and because it contained a statement against

penal interest, it satisfied the veracity prong. United States v.

Harris, 403 U.S. 573, 583-84 (1971) (holding that, in most

cases, statements against penal interest are inherently reli-

able); but see United States v. Hall, 113 F.3d 157, 159 (9th

Cir. 1994) (declining to apply Harris to accomplice informant

because “once a person believes that the police have sufficient

evidence to convict him, his statement that another person is

more important to his criminal enterprise than he gains little

credibility from its inculpatory aspect”).

Nor would the claim have had a reasonable probability of

success under California law. According to the California

Supreme Court, the affidavit contained sufficient corrobora-

tion to support a finding of probable cause:

8318 BELMONTES v. BROWN

The circumstances of the crime and evidence found

at the crime scene — as summarized in the affidavit

— corroborated Bolanos’ statement. . . . [T]rial

counsel could reasonably have concluded that the

affidavit contained sufficient corroboration of

Bolanos’s hearsay statement; that the arrest warrant

thus issued on probable cause; and that a de novo

motion to quash the warrant would have proved

futile.

People v. Belmontes, 45 Cal. 3d 744, 768 (1988). We are

bound by statements of the California Supreme Court as to

California law. See Estelle v. McGuire, 502 U.S. 62, 67-68,

(1991) (“[I]t is not the province of a federal habeas court to

reexamine state court determinations on state law ques-

tions.”). Accordingly, we must conclude that Schick would

not have had a reasonable probability of success in challeng-

ing the arrest warrant. Thus his failure to challenge the war-

rant does not constitute ineffective assistance of counsel.

2. Franks Claim

Belmontes also alleges that material omissions in the affi-

davit caused the magistrate to issue a warrant for which there

was no probable cause. See Franks v. Delaware, 438 U.S.

154, 156 (1978). Under Franks, if a criminal defendant estab-

lishes by a preponderance of the evidence that an officer reck-

lessly omitted material information from the affidavit, and if

the affidavit considered with the omitted evidence is insuffi-

cient to establish probable cause, then the “warrant must be

voided and the fruits of the search excluded to the same extent

as if probable cause was lacking.” Id.

On appeal, Belmontes did not specify what evidence was

omitted from the warrant, but he did refer to the California

Supreme Court opinion, which described four categories of

evidence: (1) The affiant, a police officer, was familiar with

Vasquez’s violent history but did not know Belmontes; (2)

BELMONTES v. BROWN 8319

Bolanos’ car had been identified at the scene of the crime; (3)

Bolanos offered his statement only after his car was

impounded and his girlfriend had incriminated him; and (4) at

first, Bolanos lied when speaking to the police. Belmontes, 45

Cal. 3d. at 769. Three of these omitted facts cast aspersions

on Bolanos’ credibility because they highlight his strong

motive to shift the blame for McConnell’s death to someone

else. The fourth is plainly of no relevance. As to the three, the

face of the affidavit makes clear that Bolanos was Miran-

dized, which itself indicates that Bolanos was a suspect in the

crime. The omitted details add more color to Belmontes’

claims, but they do not change the basic calculus involved in

determining Bolanos’ reliability. Accordingly, they are not

material, and the Franks claim must be denied.

E. Doyle Claim

Belmontes asserts that the prosecutor violated his due pro-

cess rights by cross-examining him as to his post-arrest

silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976).

However, the Supreme Court has held that Doyle does not

apply to a defendant who has waived his Miranda rights and

voluntarily given a statement to the police. Anderson v.

Charles, 447 U.S. 404, 408 (1980). Belmontes testified in his

deposition that he understood his Miranda rights, waived

them, and spoke freely and voluntarily to the police. No Doyle

error occurred.

F. Unconstitutional Restriction on Cross Examination

Belmontes contends that the trial judge violated his Sixth

Amendment rights by unconstitutionally restricting his cross

examination of Karrie Lynn Vasquez, Vasquez’s wife. Ms.

Vasquez testified that she saw Belmontes take the iron bar

from the kitchen and heard him admit to killing McConnell.

Defense counsel sought to impeach her testimony by demon-

strating that she was lying in order to increase Vasquez’s

chances at an early parole by emphasizing Belmontes’ greater

8320 BELMONTES v. BROWN

culpability. This strategy was foiled because the trial judge

refused to allow defense counsel to question Ms. Vasquez as

to her knowledge of the length of Vasquez’s sentence.

The Confrontation Clause protects a defendant’s right to

cross examine witnesses as to potential bias. Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986). However, the trial judge

retains considerable latitude to impose reasonable limits on

cross-examination based on harassment, prejudice, confusion

of the issues, and relevance. Id. Any error is subject to harm-

less error review. Id. at 684.

Despite the fact that the trial judge prevented defense coun-

sel from exploring Ms. Vasquez’s bias with respect to the

length of Vasquez’s sentence, defense counsel cross-

examined her extensively and effectively. Defense counsel

elicited testimony that Ms. Vasquez had known her husband

for eight years, bore his child, stayed with him in spite of his

frequent infidelity, married him while he was in prison for the

McConnell murder, and visited him in jail every weekend.

The jury thus had ample reason to believe that Ms. Vasquez

was biased in favor of her husband. In addition, counsel

forced Ms. Vasquez to admit that, although she had been

questioned extensively during the police investigation, it was

not until the day before Belmontes’ trial that she first claimed

to have heard him admit to the crime. This testimony strongly

suggested that Ms. Vasquez was lying about what she claimed

to have heard. Ms. Vasquez could not have been impeached

much more effectively.

In light of the extensive and effective cross-examination

that occurred, and the minimal amount of additional force the

excluded material would have added, the error, if any, could

not have had a substantial and injurious effect on the jury’s

verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

Accordingly, we deny relief on this claim as well.

BELMONTES v. BROWN 8321

G. Evidentiary Errors

Belmontes argues that his trial was rendered fundamentally

unfair by the introduction of hearsay and double-hearsay

statements supporting Bolanos’ testimony that Belmontes was

the actual killer. However, the California Supreme Court held

that these statements were properly admitted prior consistent

statements. We are bound by the opinion of the California

Supreme Court in these matters of state law. Estelle, 502 U.S.

at 67-68. As the Court has stated, “the Due Process Clause

does not permit the federal courts to engage in a finely tuned

review of the wisdom of state evidentiary rules.” Marshall v.

Lonberger, 459 U.S. 422, 438 n.6 (1983). Here, the state-

ments added little and did not render the trial fundamentally

unfair.

H. Instructional Error

Belmontes also challenges an instruction directing the jury

not to speculate as to why other individuals involved in the

crime were not on trial along with Belmontes. He claims that

this instruction prevented the jury from considering the

impact of Bolanos’ immunity agreement on his credibility.

We must determine “whether the ailing instruction by itself so

infected the entire trial that the resulting conviction violates

due process.” Estelle, 502 U.S. at 72 (internal quotation marks

omitted). We conclude that it did not, because the jury was

also instructed that it should view Bolanos’ testimony with

suspicion due to his involvement in the crime. Accordingly,

we deny this claim also.

I. Fair Cross-Section

Belmontes alleges that he was deprived of a jury comprised

of a fair cross-section of the community because of the sys-

tematic exclusion of minority jurors from the venire. How-

ever, he provides no statistical data in support of his claim.

Belmontes’ claim is thus barred by our decision in Thomas v.

8322 BELMONTES v. BROWN

Borg, 159 F.3d 1147 (9th Cir. 1998). In that case, the peti-

tioner argued that we should excuse his failure to provide the

necessary statistical evidence because his trial counsel was

constitutionally ineffective for failing to preserve it. Id. at

1150. We held:

[F]or purposes of our fair cross-section analysis, the

reason for Thomas’ lack of evidence is immaterial.

Because Thomas has provided us with insufficient

statistical evidence to determine whether blacks were

substantially underrepresented on jury venires or

panels in Kern County at the time of his trial, his

Sixth Amendment fair cross-section claim must be

denied.

Id. at 1150-51. Applying Thomas to the facts of this case, we

must deny the claim.

J. Jury Misconduct

Belmontes contends that the district court erred in denying

him an evidentiary hearing on his juror misconduct claims. A

habeas petitioner must meet two conditions to be entitled to

a federal evidentiary hearing: He must (1) allege facts which,

if proven, would entitle him to relief, and (2) show that he did

not receive a full and fair hearing in a state court, either at the

time of the trial or in a collateral proceeding. Id. at 1126-27.

A petitioner who meets these conditions must receive a hear-

ing. See, e.g., Williams v. Taylor, 529 U.S. 420 (2000) (hold-

ing that because prisoner diligently pursued claim in state

court, and was denied a hearing, he was entitled to a hearing

in federal court); United States v. Navarro-Garcia, 926 F.2d

818, 822 (9th Cir. 1991) (“Unless the court is able to deter-

mine without a hearing that the allegations are without credi-

bility or that the allegations if true would not warrant a new

trial, an evidentiary hearing must be held.”).

Belmontes first asserts that the jurors based their decision

on the view that “life without possibility of parole did not

BELMONTES v. BROWN 8323

mean that Belmontes would spend the rest of his life in pris-

on.” Belmontes is not entitled to relief on this claim because

it concerns intrinsic jury processes. “[I]ntrinsic jury processes

will not be examined on appeal and cannot support reversal.”

United States v. Bagnariol, 665 F.2d 877, 887 (9th Cir. 1981).

Belmontes next alleges that the jurors had improper con-

tacts with members of the victim’s family. He bases this con-

tention on an excerpt from the record in which the trial court

reprimanded one of the jurors for talking to the victim’s father

about motorcycles. After the reprimand, the trial court con-

ducted a hearing and determined that the juror was not biased

as a result of his contact with the victim’s father. Belmontes

does not assert either that the hearing was not full or that it

was not fair. Nor does he assert that he has any newly discov-

ered evidence. Accordingly, he is not entitled to a federal evi-

dentiary hearing on this claim.9

Third, Belmontes asserts that several jurors prejudged his

guilt and engaged in premature deliberations. However, even

assuming that the jurors did the latter, Belmontes would not

necessarily be entitled to relief. See, e.g., United States v.

Klee, 494 F.2d 394, 396 (9th Cir. 1974) (denying motion for

new trial even though jurors discussed the case during breaks

and expressed premature opinions about the defendant’s

guilt). A petitioner must allege facts which, if proved, would

show that the premature deliberations prejudiced him to the

extent that he did not receive a fair trial. United States v. Hen-

drix, 549 F.2d 1225, 1229 (9th Cir. 1977). Belmontes has not

done so here; indeed, he has not alleged any facts other than

that premature deliberations took place.

9

Moreover, the state court’s factual determination is subject to a pre-

sumption of correctness. Patton v. Yount, 467 U.S. 1025, 1037 n.12

(1984); 29 U.S.C. § 2254(d) (1994). To overcome the presumption, Bel-

montes must establish by clear and convincing evidence that the state

court’s factual finding was erroneous. Patton, 467 U.S. at 1037 n.12.

However, he submitted no evidence tending to overcome the presumption,

and the record contains none.

8324 BELMONTES v. BROWN

As to the alleged juror prejudgment, in his Amended Peti-

tion for Writ of Habeas Corpus, Belmontes contends that “[a]

sitting juror remarked, ‘Here comes the killer,’ whenever peti-

tioner was brought into court.” While this claim, if true, might

possibly entitle him to relief, see Dyer v. Calderon, 151 F.3d

970, 973 (9th Cir. 1998) (en banc) (“The bias or prejudice of

even a single juror would violate [a criminal defendant’s]

right to a fair trial.”), Belmontes did not include the issue in

his request for an evidentiary hearing or present any facts that

would entitle him to relief. Accordingly, the district court did

not err in failing to afford him a hearing on that claim.

Because Belmontes has not alleged facts that, if true, would

entitle him to relief, we affirm the district court’s denial of an

evidentiary hearing on his jury misconduct claims.

BELMONTES v. BROWN 8325

Volume 2 of 2

8326 BELMONTES v. BROWN

VI. SPECIAL CIRCUMSTANCES ISSUES

A. Racial Discrimination in Charging

Belmontes alleges that the charging decision in his case

violated the Eighth Amendment and the Equal Protection

Clause because it was infected by racial discrimination

against defendants whose victims were white. In support of

his claim, Belmontes relies on an expert report prepared by

Richard Berk, a well-respected professor of sociology and sta-

tistics at the University of California, Los Angeles. Berk ana-

lyzed prosecutors’ charging decisions in 122 death-eligible

homicides committed in San Joaquin County from August

1977 through 1986.10 In order to describe accurately the role

of race and ethnicity in death penalty charging, he coded data

for over 450 variables. After running numerous logistic

regression tests, Berk concluded that the odds of being

charged with special circumstances varied significantly

according to the race of the victim. A defendant who killed a

white person was five times more likely to be charged with

special circumstances than a defendant who killed an African

American and twenty times more likely to be charged than if

the victim were Latino. Predictably, however, the govern-

ment’s experts reviewed Berk’s report and the underlying data

and opined that the data did not reveal a pattern of discrimina-

tory charging in San Joaquin County. For the purposes of this

opinion, we assume the accuracy and statistical validity of the

Berk report.11

10

The data set consisted of probation department reports for all death-

eligible homicides charged during the relevant time period, except 70

cases for which the County lacked complete reports, 52 cases in which the

defendants were not bound over for trial on murder charges, and six cases

in which the defendants were female.

11

The district court questioned the relevance of the Berk report on the

ground that Berk based his conclusions on “a model that used only four

non-racial factors.” Although the tables printed in the report contained

only four non-racial variables, the report stated that Berk and his team

BELMONTES v. BROWN 8327

Belmontes’ claim of discriminatory charging is essentially

a selective prosecution claim, and we analyze it under that

rubric. Selective prosecution doctrine, however, poses signifi-

cant hurdles for Belmontes. The government retains broad

discretion as to whom to prosecute. Wayte v. United States,

470 U.S. 598, 607 (1985). Because the decision to prosecute

is based on such factors as the strength of the case, the gov-

ernment’s enforcement priorities, and the case’s relationship

to those priorities, the Supreme Court has stated that such

decisions are “particularly ill-suited to judicial review.” Id. at

607. Therefore, a presumption of regularity supports prosecu-

torial judgments, and “in the absence of clear evidence to the

contrary, courts presume that [prosecutors] have properly dis-

charged their official duties.” United States v. Armstrong, 517

U.S. 463, 464 (1996) (quoting United States v. Chem. Found.,

Inc., 272 U.S. 1, 14-15 (1926)). “So long as the prosecutor

has probable cause to believe that the accused committed an

offense defined by statute, the decision whether or not to

prosecute, and what charge to file or bring before a grand

jury, generally rests entirely in his discretion.” Bordenkircher

v. Hayes, 434 U.S. 357, 364 (1978).

[7] Yet, there is a line the prosecution may not cross.

Although prosecutorial discretion is broad, it is not unlimited.

United States v. Batchelder, 442 U.S. 114, 125 (1979).

Rather, “a prosecutor’s discretion is ‘subject to constitutional

constraints.’ ” Armstrong, 517 U.S. at 464 (quoting Bat-

chelder, 442 U.S. at 125). The decision to prosecute may not

be based upon an unjustifiable standard such as race, religion,

or other arbitrary classification, including the exercise of pro-

tected statutory and constitutional rights. Armstrong, 517 U.S.

actually considered many other variables in addition to those set forth in

the tables. In his declaration, Berk characterized the small, six-variable

model as “simply a summary” and stated that he considered all the vari-

ables in the data set, which included many non-racial factors. We have no

reason to disbelieve Berk’s sworn statement and can only conclude that

the district court was mistaken.

8328 BELMONTES v. BROWN

at 464; Wayte, 470 U.S. at 608. Likewise, the decision to

charge the death penalty cannot rest on criteria that offend the

Constitution. McCleskey v. Kemp, 481 U.S. 277, 293 (1987);

Adamson v. Ricketts, 865 F.2d 1011, 1022-23 (9th Cir. 1988)

(en banc), abrogated on other grounds, Walton v. Arizona,

497 U.S. 639 (1990), overruled, Ring v. Arizona, 536 U.S.

584 (2002).

[8] In order to prevail on a selective prosecution claim, a

defendant must show that the prosecutorial policy both had a

discriminatory effect and was motivated by a discriminatory

purpose. Armstrong, 517 U.S. at 465; see also McCleskey,

481 U.S. at 292 (“[T]o prevail under the Equal Protection

Clause, [a defendant] must prove that the decisionmakers in

his case acted with discriminatory purpose.”). To establish a

discriminatory effect in a race discrimination case, a defen-

dant must prove that similarly situated individuals of a differ-

ent race, or whose victims were of a different race, were not

prosecuted. Armstrong, 567 U.S. at 467.12

12

In Armstrong, the Supreme Court stated that “[t]o establish a discrimi-

natory effect in a race case, the claimant must show that similarly situated

individuals of a different race were not prosecuted. 517 U.S. at 465

(emphasis added). Belmontes’ statistics do not meet this showing. Never-

theless, although Belmontes’ claim is based on the race of his victim, not

his own race, we do not read this sentence as barring our review. In

McCleskey, the court examined a statistical study that showed statistical

disparities according to the race of the victim. 481 U.S. at 286-87. In that

case, the State argued that McCleskey did not have standing to raise a dis-

crimination claim based on his victim’s race. Id. at 291 n.8. The Court

concluded that McCleskey did have standing to raise this claim, id., and

it addressed directly McCleskey’s argument that he was “discriminated

against . . . because of the race of his victim.” Id. at 292. Armstrong did

not discuss the issue of the victim’s race at all, nor did the majority opin-

ion even mention McCleskey. That question was simply not before the

Court. In short, we are confident that Armstrong did not intend to overrule

the pertinent portion of McCleskey. Accordingly, we conclude that a

defendant may bring a selective prosecution claim based solely on the race

of his victim, and that to establish a discriminatory effect in a race-of-the-

victim case, he must show that similarly situated individuals whose vic-

tims were of a different race were not prosecuted.

BELMONTES v. BROWN 8329

[9] We reject the government’s contention that the Supreme

Court rejected similar statistical evidence in McCleskey v.

Kemp, and that Belmontes’ statistics are therefore “insuffi-

cient as a matter of law.” The factual showing made by

McCleskey was materially different from the showing made

in this case. In McCleskey, the Supreme Court reviewed the

claim of a Georgia prisoner who alleged that the Georgia cap-

ital sentencing statute violated the Equal Protection Clause

because it was administered in a racially discriminatory man-

ner. 481 U.S. at 286. In support of his claim, McCleskey

offered a sophisticated statistical study that demonstrated that

Georgia defendants whose victims were white were 4.3 times

as likely to receive a death sentence as those whose victims

were black. Id. The Court denied his claim, holding that

McCleskey’s statewide statistics did not meet his burden of

proving that the imposition of the death penalty in his particu-

lar case was the product of purposeful discrimination. Id. at

293. We have similarly refused to allow petitioners in Califor-

nia and Arizona to submit statistics that demonstrated racial

disparities in the imposition of the death penalty statewide as

evidence of discrimination in an individual case. See Carriger

v. Lewis, 971 F.2d 379, 334 (9th Cir. 1992) (en banc) (Ari-

zona); Harris v. Pulley, 885 F.2d 1354, 1374-75 (9th Cir.

1989) (California). Unlike McCleskey, Carriger, and Harris,

however, Belmontes offered statistics that provided informa-

tion limited to the charging entity—the San Joaquin County

District Attorney’s Office—and its death penalty charging

practices over time. Thus he provided what the statistics in

McCleskey lacked: information specific to the decisionmaker

in his case. We conclude that statistics relating to the charging

entity, such as those presented by Belmontes, are materially

more probative of discrimination in capital charging than

those considered by the Supreme Court in McCleskey. See

United States v. Bass, 122 S. Ct. 2389, 2389 (2002) (approv-

ing of “a showing regarding the record of the decisionmakers

in respondent’s case”). Thus, Belmontes’ proffered statistics

are not barred by McCleskey and may support a prima facie

showing of unlawful charging discrimination.

8330 BELMONTES v. BROWN

[10] We next confront the question whether Belmontes’

proffered statistical evidence proves a “discriminatory effect”

under Armstrong. The statistics show that defendants whose

victims were white were charged with special circumstances

30% of the time, whereas similarly situated defendants whose

victims were African American or Latino were charged with

special circumstances only 19% and 6% of the time, respec-

tively. Because Belmontes’ statistics revealed that individuals

whose victims were white were far more likely to be charged

with a capital offense than similarly situated individuals

whose victims were non-white, we conclude that Belmontes

established the requisite discriminatory effect. See id.

(approving of statistical evidence that assesses whether simi-

larly situated individuals were treated differently).

Under Armstrong, however, a discriminatory effect is not

enough; Belmontes must also show that the decisionmakers in

his case acted with a discriminatory purpose. Armstrong, 517

U.S. at 465. Here, Belmontes must show that the San Joaquin

County District Attorneys Office pursued a death sentence in

his case “at least in part because of” the race of his victim.

Wayte, 470 U.S. at 610 (internal quotation marks omitted).

Because Belmontes offered no non-statistical evidence on this

point, we must decide whether his statistical evidence consti-

tutes a prima facie showing of an intent to discriminate on the

part of San Joaquin County District Attorney’s Office.

The Supreme Court has not determined whether statistics

relating exclusively to the prosecuting authority are sufficient,

standing alone, to establish a prima facie claim of discrimina-

tory intent in a capital charging case. On the one hand, the

Court “has accepted statistics as proof of intent to discrimi-

nate in certain limited contexts,” McCleskey, 481 U.S. at 293,

and has held that appropriate statistics may be enough to

establish a prima facie case in a number of circumstances,

including challenges to the composition of the jury venire, id.,

Title VII employment discrimination, id. at 294, legislative

redistricting, Hunt v. Cromartie, 526 U.S. 541, 548-49 (1999),

BELMONTES v. BROWN 8331

and contemporaneous challenges to a prosecutor’s acts. See,

e.g., Batson v. Kentucky, 476 U.S. 79 (1986). In addition, the

Court has recently reaffirmed Yick Wo v. Hopkins, 118 U.S.

356 (1886), in which the petitioner, a Chinese laundry owner,

relied entirely on statistics to prove that the City of San Fran-

cisco engaged in purposeful discrimination. See, e.g., Arm-

strong, 517 U.S. at 464-65; McCleskey, 481 U.S. at 293 &

n.12. On the other hand, the Court has held that statistical evi-

dence, standing alone, is not enough to make out a prima facie

case of discrimination with respect to a jury’s verdict. See

McCleskey, 481 U.S. at 294-96 & 295 n.14. Although lan-

guage in McCleskey suggests the “impropriety” of requiring

a prosecutor to explain his charging decision years after it was

made, id. at 296 & n.17, the Court acknowledged that, gener-

ally, when a petitioner makes out a prima facie case of dis-

crimination, a prosecutor must provide an explanation. Id. &

n.18.13

[11] While we think that Belmontes’ statistics provide a

strong showing of intentional discrimination, we need not

decide whether, in a discriminatory charging case, statistics

standing alone can make out a prima facie case. Assuming

arguendo that they can and that Belmontes has made out a

prima facie case, here the State has provided evidence that is

sufficient to overcome that showing. In his deposition, the

prosecutor stated that when he decided to pursue a death sen-

tence against Belmontes, he had reason to believe that prior

to the McConnell murder Belmontes had shot and killed Jerry

Howard. In short, the prosecutor asserted that he pursued a

death penalty against Belmontes, not because of McConnell’s

13

We note that a decision to charge a capital rather than a non-capital

offense is far more significant and important than a decision to challenge

a particular juror. A charging decision is made with great deliberation over

a period of time and is generally the product of a deliberative process

involving more than one person. Moreover, unlike the case of a juror chal-

lenge, there is a full record of the relevant events that ordinarily contains

all of the objective factors upon which the decision-making would have

been based.

8332 BELMONTES v. BROWN

death alone, but because he believed that Belmontes had actu-

ally committed more than one murder. Moreover, the evi-

dence in the record is sufficient to provide a good faith basis

for such belief. Thus, there appears to be a legitimate, race-

neutral reason for a prosecutor to seek a death sentence in this

particular case, and therefore sufficient evidence to rebut the

inference of discrimination raised by Belmontes’ statistical

study. More important, Belmontes does not challenge the

state’s assertion that the prosecutor’s explanation is sufficient

to rebut his prima facie case. In his brief, he does not contend

that the fact that a defendant is a double murderer is not a

valid reason for seeking the death penalty; nor does he argue

that the statistics show that racial disparity exists with respect

to cases in which the defendant has killed, or is believed to

have killed, more than one victim. Accordingly, we conclude

that, even if Belmontes’ statistics were sufficient to raise a

prima facie case of purposeful discrimination, the State has

successfully rebutted it by offering the prosecutor’s legiti-

mate, race-neutral explanation for his actions. We therefore

deny the racial discrimination in charging claim.

B. Arbitrariness and Capriciousness in Charging

Belmontes also argues, independent of his discrimination

claim, that the charging of special circumstances in his case

was so arbitrary and capricious that it violated the Eighth

Amendment. According to Belmontes, his crime was one of

the least aggravated of death-eligible crimes, yet he was one

of only a very few defendants to actually receive the death

penalty. In contrast, many defendants who committed far

more heinous crimes than he obtained lesser punishments.

According to Belmontes, this disparity shows that in San Joa-

quin County at the time of his trial there was “no meaningful

basis for distinguishing the few cases in which [a death sen-

tence] is imposed from the many cases in which it is not.”

Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., con-

curring). Belmontes argues that because the death penalty

regime under which he was charged, convicted, and sentenced

BELMONTES v. BROWN 8333

is indistinguishable from that struck down in Furman, his sen-

tence must be vacated as unconstitutionally arbitrary and

capricious.

Belmontes’ claim, however, although styled as one of arbi-

trary death penalty charging, is actually a claim of arbitrary

imposition of the death penalty. He does not argue that the

prosecutor’s decision to charge him with special circum-

stances was arbitrary and capricious. Rather, he contends that

it was arbitrary and capricious to impose the death penalty on

him because other defendants who had committed more hei-

nous crimes than he did not receive the death penalty. The

Supreme Court considered and rejected this claim in

McCleskey. 481 U.S. at 306-12. As we are bound by control-

ling precedent, we must do the same.

VII. PENALTY PHASE ISSUES

A. Instructional Error

Belmontes contends that the trial judge’s instructions to the

jury prevented it from considering nonstatutory mitigating cir-

cumstances relating to the likelihood that he would live a con-

structive life in prison and make positive contributions to

others if granted life without the possibility of parole. Because

we conclude that there is a reasonable probability that as a

result of instructional error the jury did not consider constitu-

tionally relevant mitigating evidence, and because we believe

that the error was not harmless, we grant the petition with

respect to the sentencing phase.

1. Factual Background

At Belmontes’ trial, the judge gave the jury the then-

standard model jury instructions, modified to eliminate four

factors that the prosecution and defense agreed had no rele-

vance to the case. The jury was therefore instructed:

8334 BELMONTES v. BROWN

In determining which penalty is to be imposed on the

defendant you shall consider all of the evidence

which has been received during any part of the trial

of this case, except as you may be hereafter

instructed. You 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 any criminal activ-

ity by the defendant which involved the use or

attempted use of force or violence or the express or

implied threat to use force or violence.

(c) The presence or absence of any prior felony

conviction.

(d) Whether or not the offense was committed

while the defendant was under the influence of

extreme mental or emotional disturbance.

(e) Whether or not the defendant acted under

extreme duress or the substantial domination of

another person.

(f) The age of the defendant at the time of the

crime.

(g) Any other circumstance which extenuates the

gravity of the crime even though it is not a legal

excuse for the crime.14

14

To remain consistent with the text of the statute and the Supreme

Court’s terminology in Boyde, we will refer to this factor as “factor (k)”

or “unadorned factor (k).”

BELMONTES v. BROWN 8335

The judge also gave the jury half of a supplemental instruc-

tion requested by the defense. The part that was given read:

[T]he mitigating circumstances which I have read for

your consideration are given to you merely as exam-

ples of some of the factors that you may take into

account as reasons for deciding not to impose a

death penalty or a death sentence upon Mr. Bel-

montes. You should pay careful attention to each of

these factors. Any one of them standing alone may

support a decision that death is not the appropriate

punishment in this case.

The other half of the instruction, which the trial judge refused

to give, stated: “[Y]ou should not limit your consideration of

mitigating circumstances to these specific factors. You may

also consider any other circumstances . . . as reasons for not

imposing the death sentence.”

After several hours of deliberations, the jury sent the judge

a note asking, “What happens if we cannot reach a verdict?”

and “Can the majority rule on life imprisonment?” The jury

was brought back to the courtroom, and the judge reread a

portion of the jury instructions, emphasizing that “all 12

jurors must agree, if you can.” The jurors asked again what

would happen if they could not agree, but the court refused to

tell them.

The judge asked the jury: “Do you think if I allow you to

continue to discuss the matter and for you to go over the

instructions again with one another, that the possibility of

making a decision is there?” The jurors agreed that they

needed more time to deliberate. They then asked the follow-

ing series of questions:

JUROR HERN: The statement about the aggravation

and mitigation of the circumstances, now, that was

the listing?

8336 BELMONTES v. BROWN

THE COURT: That was the listing, yes, ma’am.

JUROR HERN: Of those certain factors we were to

decide one or the other and then balance the sheet?

THE COURT: That is right. It is a balancing pro-

cess. Mr. Meyer?

JUROR MEYER: A specific question, would this be

an either/or situation, not a one, if you cannot the

other [sic]?

THE COURT: No. It is not that.

JUROR MEYER: It is an either/or situation?

THE COURT: Exactly. If you can make that either/

or decision. If you cannot, I will discharge you.

JUROR HAILSTONE: Could I ask a question? I

don’t know if it is permissible. Is it possible that he

could have psychiatric treatment during this time?

THE COURT: That is something you cannot con-

sider in making your decision.

2. Discussion

The California death penalty statute has a unique mecha-

nism for guiding the jury’s discretion. Instead of separate sets

of aggravating and mitigating circumstances, the statute fea-

tures an eleven-factor test which focuses the jury’s attention

on the specifics of the crime and the background and charac-

ter of the defendant. Tuilaepa v. California, 512 U.S. 967

(1994); Cal. Penal Code § 190.3. The first ten factors instruct

the jury to evaluate various circumstances of the crime and

the defendant’s age and prior convictions. See Cal. Penal

Code § 190.3. The jury itself decides whether these factors are

BELMONTES v. BROWN 8337

aggravating or mitigating. People v. Benson, 52 Cal. 3d 754,

802 (1990). The eleventh factor — factor (k) — is intended

to function as a catch-all that will enable the jury to consider

any relevant mitigating circumstance that the defendant prof-

fers as a basis for a sentence less than death. The jury is obli-

gated to weigh and balance the aggravating and mitigating

circumstances and must impose the death penalty if it deter-

mines that the circumstances in aggravation outweigh those in

mitigation. See Cal. Penal Code § 190.3.

[12] In this statutory scheme, the importance of factor (k)

cannot be overstated. The Eighth Amendment requires that a

capital jury consider all relevant mitigating evidence offered

by the defendant and afford it such weight as it deems appro-

priate. Penry v. Johnson, 532 U.S. 782, 797 (2001); see also

Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1984) (“The

sentencer . . . may determine the weight to be given relevant

mitigating evidence. But [it] may not give it no weight by

excluding such evidence from [its] consideration.”); Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (holding that the Eighth

Amendment requires that the sentencer consider “as a miti-

gating factor, any aspect of a defendant’s character or record

and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death”) (emphasis

in original). This broad mandate includes the duty to consider

mitigating evidence that relates to a defendant’s probable

future behavior, especially the likelihood that he would not

pose a future danger if spared but incarcerated. Skipper v.

South Carolina, 476 U.S. 1, 4-5 (1986). Factor (k) provides

the only mechanism for allowing the jury to consider a sub-

stantial portion of many defendants’ mitigating evidence—

indeed, all mitigating evidence that does not relate to the cir-

cumstances of the crime or the defendant’s age and criminal

record.

[13] To pass constitutional muster, the trial judge’s instruc-

tions must convey to the jury that factor (k) compels it to con-

sider all relevant mitigating evidence proffered by the

8338 BELMONTES v. BROWN

defendant as a basis for a sentence less than death. “[I]t is not

enough simply to allow the defendant to present mitigating

evidence to the sentencer.” Penry v. Lynaugh, 492 U.S. 302,

319 (1989). Rather, the trial judge’s instructions must convey

“that the sentencer may not be precluded from considering,

and may not refuse to consider, any constitutionally relevant

mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269,

276 (1998), citing Penry, 492 U.S. at 317-18; Eddings, 455

U.S. at 113-14; Lockett, 438 U.S. at 604.

[14] At the time of Belmontes’ trial, factor (k) allowed the

jury to consider “[a]ny other circumstance which extenuates

the gravity of the crime even though it is not a legal excuse

for the crime.” The Supreme Court had occasion to review

this language in Boyde v. California, 494 U.S. 370 (1990). In

Boyde, the defendant had argued that the jury instruction was

unconstitutional because there was a reasonable likelihood

that the jury would construe the instruction as forbidding it

from considering evidence unrelated to the crime—e.g., miti-

gating evidence relating to the defendant’s background and

character. However, the Supreme Court held that because of

the view “long held by society” that a defendant with a disad-

vantaged background or emotional or mental problems may

be “less culpable than defendants who have no such excuse,”

the jury was reasonably likely to have understood that the

defendant’s evidence of “his impoverished and deprived

childhood, his inadequacies as a school student, and his

strength of character in the face of these obstacles” could have

“extenuate[d] the gravity of the crime even though it [wa]s

not a legal excuse for the crime.” Id. at 381-82 & n.5. The

Court held that, because the trial judge instructed the jury that

it “shall consider all of the evidence which has been received

during any part of the trial of this case,” there was no reason-

able likelihood that the jury believed that factor (k) prevented

it from considering the background and character evidence

introduced by Boyde and its bearing on Boyde’s commission

of the crime. Id. at 383 (emphasis in original).15 In other

15

The Court also defined “extenuates” to mean “lessens the seriousness

of a crime as by giving an excuse.” Id. at 381.

BELMONTES v. BROWN 8339

words, the Supreme Court held that the unadorned factor (k),

at least when accompanied by an appropriate clarifying

instruction, was constitutional as applied to mitigating evi-

dence relating to the defendant’s psychological make-up and

history, which practically, if not legally, bore upon his com-

mission of the crime and was offered for the purpose of

reducing his culpability for the offense.

The same type of evidence, however, can serve an alterna-

tive forward-looking purpose, mitigating in a manner wholly

unrelated to a petitioner’s culpability for the crime he com-

mitted. This alternative purpose has nothing to do with per-

suading the jury that the defendant is less culpable with

respect to the crime because of some aspect of his family

background, personal history, character, or mental capacity.

Rather, as defined by the Supreme Court in Skipper v. South

Carolina, the jury must “consider[ ] a defendant’s past con-

duct as indicative of his probable future behavior” and

“draw[ ] favorable inferences” about a defendant’s “probable

future conduct if sentenced to life in prison.” 476 U.S. at 4-

5(emphasis added).16 The Court characterized this kind of mit-

igation as “an inevitable and not undesirable element of crimi-

16

In attempting to extend Boyde to issues of future conduct, the dissent

errs by focusing on the temporal nature of the evidence rather than the

purpose for which it is introduced. In the instant case, the operative dis-

tinction is not between categories of “pre-crime” and “post-crime” evi-

dence in the sense of when the acts that constitute the evidence occurred,

but rather between a jury’s use of background and character evidence to

mitigate culpability for the crime, as opposed to the use of the same type

of evidence to draw favorable inferences about petitioner’s probable future

conduct. This latter use of the evidence can, as Skipper holds, serve as a

wholly separate and independent basis for a sentence less than death.

Thus, the central question is not whether the jury “was able to consider

and give effect to all of Belmontes’ mitigating evidence,” post at 8355

(emphasis added), but rather what mitigating effect the jury understood to

be permissible under the instruction as stated. Skipper requires that the

jury understand that evidence must be given mitigating effect whether it

bears on petitioner’s culpability for the crime or instead relates to petition-

er’s future potential for constructive conduct.

8340 BELMONTES v. BROWN

nal sentencing” and stated that, even though these kinds of

inferences “would not relate specifically to petitioner’s culpa-

bility for the crime he committed, there is no question but that

such inferences would be mitigating in the sense that they

might serve as a basis for a sentence less than death.” Id. at

4-5 (emphasis added) (citations and internal quotation marks

omitted). Accordingly, the Court held that “[u]nder Eddings,

such evidence may not be excluded from the sentencer’s con-

sideration.” Id. at 5. The Court’s opinion in Boyde did not

address whether a reasonable jury would have interpreted the

unadorned factor (k) instruction to include the use of this

same type of evidence for a forward-looking purpose which

serves to mitigate without ameliorating the crime. Boyde, 494

U.S. at 382 n.5 (distinguishing Boyde from Skipper on the

ground that Boyde’s mitigation evidence “was introduced not

to demonstrate that he was a ‘model prisoner’ like Skipper

and therefore unlikely to present a risk of future dangerous-

ness but . . . as part of petitioner’s overall strategy to portray

himself as less culpable than other defendants due to his dis-

advantaged background and his character strengths in the face

of those difficulties.”).

Belmontes contends that his Eighth and Fourteenth Amend-

ment rights were violated because the trial judge’s instruc-

tions failed to advise the jury to consider the portion of his

mitigating evidence that tended to show that he would adapt

well to prison and would become a constructive member of

society if granted a life sentence. We review this claim of

instructional error under the approach set forth by the

Supreme Court in Boyde, which directs us to determine

whether there is a reasonable likelihood that the jury under-

stood the instruction in a manner that resulted in its failure to

consider constitutionally relevant evidence. 494 U.S. at 380.

Although Belmontes’ briefs emphasize the trial judge’s mid-

deliberation colloquy with Juror Hern,17 the Court has held

17

We reject the government’s argument that the mid-deliberation

exchange does not count as a jury instruction because it was “rather infor-

BELMONTES v. BROWN 8341

that we must examine claims of instructional error in light of

the record as a whole. Id. at 377. Accordingly, in assessing

Belmontes’ claim of instructional error, we consider the entire

mid-deliberation colloquy as well as the original jury instruc-

tions.

[15] We begin with the original instructions. As stated

above, Belmontes’ jury was instructed to consider and take

into account “[a]ny other circumstance which extenuates the

gravity of the crime even though it is not a legal excuse for

the crime.” Cal. Penal Code § 190.3.18 Most naturally read,

this instruction allows the jury to consider evidence that bears

upon the commission of the crime by the defendant and

excuses or mitigates his culpability for the offense. We now

know that such evidence includes background and character,

both of which tend to explain why the defendant committed

the crime. By its plain language, however, the instruction does

not encompass events or considerations that are unrelated to

the defendant’s culpability. In particular, the instruction does

not apply to those forward-looking considerations encom-

mal” and occurred after the formal charge. See Shafer v. South Carolina,

121 S. Ct. 1263, 1274 (2001) (labeling the trial judge’s answer to the

jury’s mid-deliberation question an “instruction” and criticizing it because

it “did nothing to ensure that the jury was not misled”); Bollenbach v.

United States, 326 U.S. 607 (1946) (reversing and remanding because a

“supplemental instruction” from the trial court following a question by the

jury was “simply wrong”); McDowell v. Calderon, 130 F.3d 833, 836 (9th

Cir. 1997) (en banc), overruled in part on other grounds, Weeks v. Ange-

lone, 528 U.S. 225 (2000) (explaining that the trial judge’s duty to instruct

the jury adequately “continues until a verdict is reached and returned. As

they work towards a verdict, the jurors must stay in the channel charted

for them by state law. To this end, they may need ongoing guidance.”).

18

The California legislature has since reformulated the instruction to

direct the jury to consider “any sympathetic or other aspect of the defen-

dant’s character or record [that the defendant offers] as a basis for a sen-

tence less than death, whether or not related to the offense for which he

is on trial.” CALJIC 8.85(k) (6th ed. 1996). See also People v. Easley, 34

Cal. 3d 858 (1983) (recognizing that unadorned factor (k) had significant

potential for jury confusion.).

8342 BELMONTES v. BROWN

passed by the Supreme Court’s decision in Skipper: evidence

that allows the jury to evaluate the defendant’s probable

future conduct if incarcerated for life without the possibility

of parole—specifically, evidence that would tend to prove

that Belmontes would likely live a constructive life if perma-

nently confined within a structured prison environment. These

important sentencing considerations are simply not in any

respect “circumstance[s] that extenuate[ ] the gravity of the

crime.” See Skipper, 476 U.S. at 4 (stating that lack of future

dangerousness does “not relate specifically to petitioner’s cul-

pability for the crime he committed”); see also Boyde, 494

U.S. at 382 n.5. Moreover, unlike in Boyde, “society” has not

had a “long held view” that a defendant’s likely future con-

duct can serve to mitigate or excuse his commission of a seri-

ous crime. Rather, the doctrine is a legal concept peculiar to

capital punishment cases. Thus, in the absence of a clear

instruction on point, jurors are not likely to be aware in deter-

mining the appropriate punishment in such cases that the

defendant’s potential for a positive adjustment to life in prison

constitutes a proper mitigating factor.

[16] In the current case, the most important part of Bel-

montes’ mitigation presentation was that the jury should spare

his life because he had the potential, if confined within a

prison setting, to contribute positively to prison life. Although

the record made before the jury included a substantial amount

of evidence about his difficult childhood, in his own testi-

mony he repeatedly stated that he did not want to use his

rough childhood “as a crutch” or an excuse. Thus, ultimately

the more significant evidence related to his conduct during the

period of his prior CYA incarceration and to his ability to

conform his behavior to societal norms should he be confined

within a structured prison environment. Belmontes’ counsel

argued to the jury that the evidence demonstrated that if

granted life without parole, he would adapt well to prison life,

would make a positive contribution to the welfare of others,

and would not pose a future danger to the guards or the other

inmates.

BELMONTES v. BROWN 8343

[17] Unlike the background and character evidence in

Boyde that tended to mitigate the offense, Belmontes’ mitiga-

tion evidence was simply not covered by any natural reading

of the words of the unadorned factor (k) instruction. To the

contrary, that instruction, read most naturally, suggested to

the reasonable juror that Belmontes’ evidence tending to show

his probable future good conduct should be excluded from

consideration, and thus that such evidence was governed by

the earlier instruction that the jury “consider all of the evi-

dence . . . except as you may be hereafter instructed.” At the

least, the unadorned factor (k) instruction is ambiguous with

respect to Skipper’s requirement that the jury be permitted to

consider and give effect to evidence bearing on a defendant’s

probable future good conduct when it decides whether to

impose the death penalty, see 476 U.S. at 5, and thus with

respect to the jury’s right to consider Belmontes’ most impor-

tant mitigating evidence.

[18] The court’s supplemental instructions only exacer-

bated this problem. Belmontes’ counsel had requested instruc-

tions that would have expressly instructed the jury that it

“should not limit [its] consideration of mitigating circum-

stances to these specific factors,” i.e., the factors listed in the

original instruction. However, although the trial judge gave

part of the instruction requested by defense counsel, he

refused to give the most critical portion. Instead, the trial

judge gave a set of contradictory instructions that failed to

inform the jury that it could consider the portion of Bel-

montes’ mitigating evidence bearing on his probable future

conduct. The trial judge started out on the right track by

instructing the jury that it should view the statutory factors

“merely as examples of some of the factors” that it could con-

sider. However, any clarity gained at the outset of the instruc-

tion was immediately undone by a superceding qualifying

directive. The judge added, “You should pay careful attention

to each of these factors,” an instruction that a reasonable juror

would almost certainly have understood to refer to the statu-

tory factors, and particularly to the unconstitutionally limiting

8344 BELMONTES v. BROWN

unadorned factor (k). The trial judge then continued, “Any

one of them [i.e., the factors] standing alone may support a

decision that death is not the appropriate punishment in this

case,” implying that only a statutory factor can support a sen-

tence less than death. A juror who followed these instructions

would likely think that he could not consider nonstatutory

mitigating evidence—evidence not going to culpability—such

as testimony tending to show that Belmontes would lead a

constructive life if confined permanently within a structured

environment. Still, the supplementary instructions did not end

the matter.

[19] Compounding the problems with the original and sup-

plemental instructions were the trial judge’s responses to the

jurors’ questions during the mid-deliberation colloquy. In that

colloquy, the trial judge again directed the jury’s attention to

the literal text of the original unadorned factor (k) instruction,

which strongly implied that the jury could not consider evi-

dence regarding the defendant’s probable future conduct. The

jury had deliberated for several hours before it sent the judge

a note indicating that it was deadlocked. The note read, “What

happens if we cannot reach a verdict?” and “Can the majority

rule on life imprisonment?” In the discussion that followed,

the judge properly ascertained that further deliberations would

probably be fruitful. He then suggested to the jury that it

might be helpful to “go over the instructions again with one

another” as they continued to deliberate. It was at this point

that the jurors began to question the judge with respect to the

aggravating and mitigating factors. Juror Hern asked, “The

statement about the aggravation and mitigation of the circum-

stances, now, that was the listing?” When the court responded

affirmatively, she asked, “Of those certain factors we were to

decide one or the other and then balance the sheet?”

Juror Hern’s questions reveal that she did not understand

that her duty as a juror was to consider all of Belmontes’ miti-

gating evidence. The most reasonable way to interpret her

first question is as an effort to clarify that the jury should look

BELMONTES v. BROWN 8345

to the statutory factors (a) through (g) [or unadorned (k)], as

read to the jury by the trial judge, to determine what counted

as aggravating and mitigating circumstances. It appears that

by asking, “that was the listing?,” Juror Hern wanted confir-

mation that there was a finite list of factors for the jury to con-

sider and that the list consisted of the statutory factors read to

the jury by the judge. This interpretation is reinforced by

Juror Hern’s next question: “Of those certain factors, we were

to decide one or the other [e.g., whether the evidence is aggra-

vating or mitigating] and then balance the sheet?” The struc-

ture of this question separates the “certain factors” that appear

in “the listing” from other factors that may not be reflected

there. It makes it clear that at least one juror believed that the

jury should consider, weigh, and balance only “those certain

factors” that appeared in “the listing.” Of course, such a belief

would have been incorrect; the jury was required to consider

and evaluate Belmontes’ mitigating evidence relating to his

potential adjustment to life in prison regardless of the fact that

it was not listed in the statute.

In any event, Juror Hern’s questions signified that she was

not sure how to follow the judge’s instructions.19 “When a

19

The Supreme Court has frequently accepted jury questions as evi-

dence that the trial judge’s original instructions were not sufficiently clear.

See, e.g., Shafer, 121 S. Ct. at 1273 (“Shafer’s jury left no doubt about its

failure to gain from defense counsel’s closing argument or the judge’s

instructions any clear understanding of what a life sentence means.”); Sim-

mons v. South Carolina, 512 U.S. 154, 178 (1994) (“[T]hat the jury in this

case felt compelled to ask whether parole was available shows that the

jurors did not know whether or not a life-sentenced defendant will be

released from prison.”); Bollenbach, 326 U.S. at 612 (“The jury’s ques-

tions . . . clearly indicated that the jurors were confused.”). We have done

so as well. E.g., Morris v. Woodford, 273 F.3d 826, 840 (9th Cir. 2001)

(citing fact that jury asked mid-deliberation question as evidence that it

was confused by the original instruction); United States v. Frega, 179 F.3d

793 (9th Cir. 1999) (stating that a reviewing court may infer from the

jury’s questions that it was confused about a controlling legal principle).

Here, as in those cases, Juror Hern’s questions strengthen our conviction

that the original and supplemental instructions did not convey to the jury

8346 BELMONTES v. BROWN

jury makes explicit its difficulties a trial judge should clear

them away with concrete accuracy.” Bollenbach v. United

States, 326 U.S. 607, 612-13, (1946). In this case, the trial

judge had a duty to cure any ambiguity in his instructions by

providing a clear description of the jury’s obligations. The

judge should have answered Juror Hern’s questions by

instructing the jury that “the listing” of mitigating factors was

not exhaustive and that the jury’s duty was to consider and

weigh all of the mitigating evidence presented by Belmontes

during the sentencing phase. Cf. Boyde, 494 U.S. at 383.

Instead, however, the judge simply affirmed Juror Hern’s

incorrect assumptions with a terse, “That is right.” In so

doing, he not only failed to correct Juror Hern’s erroneous

view, but he likely left all the jurors with the impression that

they could consider mitigation evidence only if it appeared as

one of the “certain factors” in “the listing.” As we have dis-

cussed, Belmontes’ principal mitigating evidence does not fall

in this category.

The trial judge also instructed the jury that it could not con-

sider a specific subject relating to Belmontes’ ability to adjust

to prison life. Less than thirty seconds after Juror Hern’s

inquiry, Juror Hailstone said: “Could I ask a question? I don’t

know if it is permissible. Is it possible that he could have psy-

that it could consider Belmontes’ nonstatutory mitigating evidence per-

taining to his probable future behavior in prison if incarcerated for life.

We need not rely on affirmative evidence of jury confusion in order to

reach this conclusion, however. See Kelly v. South Carolina, 122 S. Ct.

726, 733 (2002) (“Time after time appellate courts have found jury

instructions to be insufficiently clear without any record that the jury man-

ifested its confusion.”). “A trial judge’s duty is to give instructions suffi-

cient to explain the law, an obligation that exists independently of any

question from the jurors or any indication of perplexity on their part.” Id.

To hold otherwise would condition our ability to redress serious constitu-

tional violations on such subjective vagaries of fate as whether the jurors

happened to ask a question instead of embarking boldly down the wrong

path.

BELMONTES v. BROWN 8347

chiatric treatment during this time?” The trial judge

responded: “That is something you cannot consider in making

your decision.” He did not explain why the jury could not

consider this issue, and immediately after issuing this

response, he sent the jury off to resume its deliberations. The

instruction not to consider possible future psychiatric treat-

ment was misleading because of the judge’s failure to explain

to the jury why it could not consider the prohibited subject;

to the extent that the jury believed that it could not consider

mitigating evidence relating to how Belmontes might behave

in a controlled prison environment, the instruction as given

would likely have confirmed its misconception.

[20] Juror Hailstone’s question and the trial judge’s

response are troubling because of the likelihood that the jury

understood them in the context of the larger discussion about

how to consider, weigh, and balance aggravating and mitigat-

ing circumstances.20 In such case, the jury would have

inferred from the trial judge’s response that it could not con-

sider Juror Hailstone’s question, not because there had been

no evidence presented on the subject at trial, but because it

raised a consideration that did not relate to one of the “certain

factors” set forth in “the listing,” or, to put it differently, to

one of the factors bearing on the defendant’s culpability for

the crime. The trial judge’s response thus likely reinforced the

jury’s mistaken notion that Belmontes’ mitigation evidence

20

The government insists that the reason for his answer was obvious:

There was no evidence presented on the topic of possible psychiatric treat-

ment at Belmontes’ trial; therefore, the jury could not consider it. The gov-

ernment argues that the jurors would have realized that this was why they

could not consider Juror Hailstone’s question, and so the trial judge’s

response could have had no effect on their deliberations. We reject this

contention. The jurors at Belmontes’ trial were not lawyers; they were not

schooled in the rules of evidence, and they had no reason to know that the

trial judge’s response was based on an evidentiary concern (if, in fact, it

was based on an evidentiary concern rather than on the trial judge’s mis-

understanding of the law). It is far more likely that the jury would have

viewed this question and its answer in the manner that we have described.

8348 BELMONTES v. BROWN

relating to his probable future good conduct if confined in a

structured prison environment was irrelevant to the sentencing

decision.

The next question is whether the trial judge’s various

instructions relating to limitations on the evidence that could

be considered had an effect on the jury’s deliberations. We

may not reverse the jury’s penalty determination unless the

instructions actually created “a reasonable probability that the

jury has applied the challenged instruction in a way that pre-

vents the consideration of constitutionally relevant evidence.”

Boyde, 494 U.S. at 380 (emphasis added). The jury’s decision

must stand “if there is only a possibility of such an inhibi-

tion.” Id. (emphasis added).

[21] We hold that there is a reasonable probability that, as

a result of the court’s instructions, the jury in Belmontes’ case

did not consider his principal mitigating evidence. The trial

judge began by giving a faulty instruction, one that on its face

arguably does not allow consideration of mitigating evidence

pertaining to the defendant’s probable future good behavior in

prison, as opposed to his culpability for the crime. He then

rejected a significant part of the supplemental instruction that

Belmontes proposed in an effort to solve the problem. The

jurors were understandably confused, and they asked ques-

tions of the court in an effort to clarify the scope of their duty.

In the course of that dialogue, the trial judge endorsed Juror

Hern’s view of the instructions, a view that strongly suggested

that the jury could consider, weigh, and balance only “those

certain factors” that appeared in “the listing.” Following that

endorsement, the trial judge advised the jury without further

explanation that, in making its decision, it could not consider

the possibility that Belmontes could receive psychiatric treat-

ment in prison. In sum, every instruction that the jury received

tended to convey the message that the jury could not consider

Belmontes’ mitigating evidence unless it related to his culpa-

bility for the crime. Under these circumstances, there is, at the

least, a reasonable probability that the jury did not consider

BELMONTES v. BROWN 8349

Belmontes’ principal mitigation evidence—the evidence that

provided the factual support for his argument in mitigation:

that he would live a productive life if permanently incarcer-

ated in a structured environment. Because “[t]he Eighth

Amendment requires that the jury be able to consider and give

effect to all relevant mitigating evidence offered by petition-

er,” Boyde, 494 U.S. at 377-78, the unadorned factor (k)

instruction, as applied in Belmontes’ case, was unconstitu-

tional.

Having concluded that an error of constitutional magnitude

infected the penalty phase of Belmontes’ trial, we turn finally

to the question whether that error was nonetheless harmless.

See Boyde, 494 U.S. at 380 (applying Brecht harmless error

standard). Belmontes cannot obtain a new trial unless the

instructional error had “a substantial and injurious effect” on

the jury’s verdict. Brecht v. Abrahamson, 507 U.S. at 637. We

hold that it did.

Our cases appear to be divided as to whether the petitioner,

the state, or neither bears the responsibility for showing harm-

less error under the Brecht harmless error standard. Compare

Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997)

(placing burden on petitioner), with Keating v. Hood, 191

F.3d 1053, 1062 (9th Cir. 1999) (as amended) (placing burden

on state), and Thompson v. Borg, 74 F.3d 1571, 1575 (9th Cir.

1996) (rejecting burdens of proof in favor of an independent

determination of whether a trial error had a substantial and

injurious effect). In a recent case, we stated that “[t]he

Supreme Court has made clear that whether a trial error had

a substantial and injurious effect is not to be analyzed in terms

of burdens of proof.” Mancuso v. Olivarez, 282 F.3d 728, 737

n.4 (9th Cir.), as amended, 292 F.3d 939 (2002), citing

O’Neal v. McAninch, 513 U.S. 432, 436 (1995). In that case,

we further stated that the reviewing court has “the responsibil-

ity to determine this legal question ‘without benefit of such

aids as presumptions or allocated burdens of proof that expe-

dite factfinding at the trial.’ ” Id. (quoting O’Neal, 513 U.S.

8350 BELMONTES v. BROWN

at 437). However, O’Neal also stated that “it is the State that

bears the “risk of doubt.” O’Neal, 513 at 438; Valerio v.

Crawford, 306 F.3d 742, 746 (9th Cir. 2002)(en banc), cert.

denied, 123 S. Ct. 1788 (2003). Also, as we said only

recently, we look to the State to instill in us a “fair assurance”

that there was no effect on the verdict. See Morales v. Wood-

ford, 336 F.3d 1136, 1148 (9th Cir. 2003) (“[T]he state must

provide us with a ‘fair assurance’ that the error was harmless

under Brecht.”); Valerio, 306 F.3d at 762; see also O’Neal,

513 U.S. at 443 (“[T]he State normally bears responsibility

for the error that infected the initial trial.”). Valerio and Mora-

les stand for the proposition that only if the State has per-

suaded us that there was no substantial or injurious effect on

the verdict do we find the error harmless. Certainly, “if one

is left in grave doubt [about the harmfulness of the error], the

conviction cannot stand.” Mancuso, 282 F.3d at 737 n.4

(quoting Kotteakos v. United States, 328 U.S. 750, 765

(1946).

[22] Here we need not consider the issue of burdens of

proof any further. Regardless of the applicable rule, we are

convinced that the instructional error in this case, which pre-

vented the jury from considering and giving effect to Bel-

montes’ most important mitigation evidence, had a substantial

and injurious effect on the jury’s verdict. At the penalty phase

of this trial the aggravating evidence was not strong. It basi-

cally consisted of the fact that Belmontes was previously

incarcerated in the youth facility for being an accessory after

the fact to voluntary manslaughter, one domestic violence

incident, and two occurrences relating to possession, or possi-

ble possession, of a gun. The prosecutor candidly told the jury

that there was not a lot in the way of aggravating evidence.

He asked the jury to return a death sentence because of the

circumstances of the crime itself. Yet the crime, though

shocking and deplorable, was in essence a robbery gone

wrong. The murder was not pre-planned, nor did it involve

kidnapping, rape, torture, multiple victims, or any of the other

especially heinous elements that usually are present when a

BELMONTES v. BROWN 8351

jury votes for the ultimate penalty. In short, the McConnell

murder was of the kind that generally does not result in a

death penalty.21

Under these circumstances, there is a reasonable probability

that a properly instructed jury would have spared Belmontes’

life had it believed that he would not pose a future danger if

sentenced to life without parole, and that instead he would

become a model prisoner who could contribute something of

value to society. The state concedes that Belmontes presented

“substantial” evidence in support of this mitigation theme.

Several witnesses, including Belmontes himself, testified that

although he had difficult in acting appropriately in the outside

world, he thrived in the structured, institutional environment

of prison. Belmontes described his experience on the CYA’s

fire crew, during which he rose from last man to number two,

a position of leadership and responsibility, and about his grad-

ually increasing involvement in Christianity during his prior

incarceration. Reverend Barrett spoke about Belmontes’ par-

ticipation in the M-2 Christian sponsorship program, which he

felt was genuine, and testified that in his opinion if granted a

life sentence Belmontes would make positive contributions to

prison life through his involvement with the prison ministries.

One of Belmontes’ most important witnesses was Reverend

Miller, who testified that Belmontes had been good at coun-

seling young inmates not to repeat the mistakes that he had

made and that he “definitely would be used in the prison sys-

tem for this kind of activity” if granted life without parole.

[23] The importance of this mitigation theme was stressed

during closing arguments. In his allocution, Belmontes took

responsibility for his actions and stated that he did not want

21

On this point, Belmontes submitted evidence that, of the thirty defen-

dants who were tried for felony-murder in San Joaquin County between

1977 and 1986, only two, including Belmontes himself, received a death

sentence. Many defendants whose crimes by any measure were substan-

tially more aggravated than Belmontes’ did not receive a death penalty.

8352 BELMONTES v. BROWN

to use his difficult childhood as an excuse. He asked the jury

to give him the opportunity to rehabilitate himself, set goals,

and make a positive contribution to the welfare of others

while in prison. His counsel repeated this theme in his emo-

tional closing argument, in which he asked the jury to spare

Belmontes’ life on the ground that he would make positive

contributions if allowed to live out his natural life in prison.

Given the weakness of the aggravating evidence and the

substantial nature of the mitigating evidence, we conclude

that had the jury been properly instructed, and had it under-

stood that it could consider and give effect to the evidence

regarding Belmontes’ ability to function effectively in a

prison setting, there is a reasonable probability that it would

have returned a different verdict. Accordingly, Belmontes is

entitled to relief on the sentencing phase.

CONCLUSION

Although we are disturbed by the prosecution’s failure to

disclose impeaching evidence and to correct false testimony

on the part of its principal witness, as well as by defense

counsel’s failure to disclose the extent of his prior representa-

tion of Vasquez and to pursue a full investigation of

Vasquez’s background, and although we are at least as dis-

turbed by the results of the study that showed the discrimina-

tory racial effect of the County’s capital charging policies, we

cannot conclude, for the reasons we have explained, that any

of these occurrences served to violate Belmontes’ constitu-

tional rights. Thus, we are compelled to deny relief with

respect to the guilt phase, including the special circumstances

finding. However, because the trial judge failed to instruct the

jury that it was required to consider Belmontes’ principal mit-

igation evidence, and because we conclude that this failure

had a substantial and injurious effect upon the verdict, we

reverse with respect to the sentencing phase. We remand to

the district court with instructions to issue an appropriate writ

vacating Belmontes’ death sentence.

BELMONTES v. BROWN 8353

AFFIRMED in part, REVERSED in part, and

REMANDED for issuance of the writ in accordance with this

opinion.

O’SCANNLAIN, Circuit Judge, concurring in part and dis-

senting in part:

The court properly affirms Judge Levi’s determination that

there was no constitutional error in Belmontes’s conviction

for first-degree murder with special circumstances in state

court. I am pleased to concur in its conclusions as to the guilt

phase. Regrettably, as to the penalty phase, the majority

strains mightily—and unpersuasively—to perceive constitu-

tional error in the comprehensive and perfectly proper jury

instructions given by the state trial judge. Because there sim-

ply is no such error, and the Supreme Court has expressly told

us so on two separate occasions, I must respectfully dissent

from the court’s reversal of the district court’s denial of the

petition for the writ with respect to the penalty phase.

Over a decade ago, the Supreme Court in Boyde v. Califor-

nia, 494 U.S. 370 (1990), interpreted the same jury instruction

at issue today, “factor (k),” and concluded that it was constitu-

tionally sound. The Court held that there was no “reasonable

likelihood that the jury . . . applied [factor (k)] in a way that

prevent[ed] the consideration of constitutionally relevant evi-

dence.” Id. at 380. Factor (k)’s constitutionality was recently

reaffirmed in Brown v. Payton, 544 U.S. ___, 125 S. Ct. 1432,

1442 (2005), where the Court again refused to invalidate a

death sentence imposed pursuant to instructions that included

factor (k). The Court reached that result even though the pros-

ecutor had explicitly argued to the sentencing jury that factor

(k) prohibited them from considering the defendant’s mitigat-

ing evidence. Id. at 1440.

The majority nonetheless manages to distinguish Boyde and

Payton, and reaches the extraordinary conclusion that there

8354 BELMONTES v. BROWN

was a reasonable likelihood that the jury refused to consider

mitigating evidence that both the prosecution and the defense

acknowledged was properly before it. Because the jurors were

not constitutionally barred from making a death penalty deter-

mination in this case, I would affirm.

I

At the close of the penalty phase, the state trial court judge

began instructing the jury on aggravating and mitigating cir-

cumstances as follows: “In determining which penalty is to be

imposed on the defendant you shall consider all of the evi-

dence which has been received during any part of the trial of

this case, except as you may be hereafter instructed.” The

court then read an enumerated list of seven factors, exhaustive

with respect to aggravating circumstances, but only examples

with respect to mitigating circumstances. The last of these

factors, factor (k), instructs the jury to consider, “[a]ny other

circumstance which extenuates the gravity of the crime even

though it is not a legal excuse for the crime.” The majority,

by misconstruing both Supreme Court precedent and the evi-

dence in this case, concludes that the factor (k) instruction

failed to provide an outlet for the jury to consider some of

Belmontes’s penalty phase evidence.

A

The majority’s holding is based on the false premise that

factor (k) limits the jury’s consideration only to circumstances

that might excuse the crime. See supra, at 8341-42. But the

Supreme Court has already explicitly rejected this proposi-

tion. In Boyde, the Court held that factor (k) did not “limit the

jury’s consideration to ‘any other circumstances of the crime

which extenuates the gravity of the crime.’ [It directed the

jury] to consider any other circumstance that might excuse

the crime, which certainly includes a defendant’s background

and character.” 494 U.S. at 382 (emphases in original); see

also id. at 381 (holding that there was “no[ ] . . . reasonable

BELMONTES v. BROWN 8355

likelihood that Boyde’s jurors interpreted the trial court’s

instructions to prevent consideration of mitigating evidence of

background and character”). Boyde makes it perfectly clear

that testimony relating to a defendant’s pre-crime background

and character is within the jury’s purview under factor (k).

Belmontes’s penalty phase presentation was entirely com-

posed of such evidence. The witnesses who testified on his

behalf spoke to his religious convictions and his behavior

while a ward of the California Youth Authority (“CYA”)—all

of which goes to his background and character before he mur-

dered Steacy. While the majority attempts to paint such evi-

dence as showing that he would be a model inmate if

sentenced to life in prison, the testimony as actually presented

deals exclusively with his character prior to the crime. In fact,

not one witness who testified during the penalty phase testi-

fied to Belmontes’s behavior after the murder.

Belmontes’s religious conversion and ability to conform to

prison are exactly the types of evidence that the Supreme

Court held fit within the plain language of factor (k). See

Boyde, 494 U.S. at 382 (holding that Boyde’s strength of

character in the face of adversity was considered evidence

that “excused” the gravity of the crime under factor (k)).

Accordingly, under Boyde, the jury was able to consider and

to give effect to all of Belmontes’s mitigating evidence. Noth-

ing more was constitutionally required. Johnson v. Texas, 509

U.S. 350, 372 (1993) (holding that “a jury [need not] be able

to give effect to mitigating evidence in every conceivable

manner in which the evidence might be relevant”).

Even so, the Supreme Court has held that inquiry into

future dangerousness of a defendant “is not independent of an

assessment of personal culpability.” Id. at 369. In Johnson,

the Court held that an instruction that asked jurors to consider

the future dangerousness of a defendant provided ample

opportunity for the jury to consider the defendant’s youth as

mitigating evidence. Id. at 369-70. Even though the statutory

8356 BELMONTES v. BROWN

factor did not explicitly provide that the jury could consider

the defendant’s youth as a mitigating factor for culpability of

the crime, the Court concluded that there was no reasonable

likelihood that the jury would have thought it was foreclosed

from considering it. Id. at 370.

Likewise, because factor (k) allows the jury to consider

Belmontes’s character and background, there is no reason to

think that the jury would have thought it was foreclosed from

using such information to consider his future potential if sen-

tenced to life in prison. As the Supreme Court has noted,

“Consideration of a defendant’s past conduct as indicative of

his probable future behavior is an inevitable and not undesir-

able element of criminal sentencing.” Skipper v. South Caro-

lina, 476 U.S. 1, 5 (1986) (emphasis added); see also Boyde,

494 U.S. at 382 (“Petitioner had an opportunity through factor

(k) to argue that his background and character ‘extenuated’ or

‘excused’ the seriousness of the crime, and we see no reason

to believe that reasonable jurors would resist the view, ‘long

held by society,’ that in an appropriate case such evidence

would counsel imposition of a sentence less than death.”); cf.

Johnson, 509 U.S. at 370.

Thus, while the majority scours the cold record dec

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