414 F.3d 1094 (9th Cir. 2005), 01-99018, Belmontes v. Brown

Docket Nº:01-99018.
Citation:414 F.3d 1094
Party Name:Fernando BELMONTES, Jr., Petitioner-Appellant, v. Jill L. BROWN, Warden, for the California State Prison at San Quentin, [*] Respondent-Appellee.
Case Date:July 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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414 F.3d 1094 (9th Cir. 2005)

Fernando BELMONTES, Jr., Petitioner-Appellant,


Jill L. BROWN, Warden, for the California State Prison at San Quentin, [*] Respondent-Appellee.

No. 01-99018.

United States Court of Appeals, Ninth Circuit

July 15, 2005

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Eric S. Multhaup, Mill Valley, CA; Christopher H. Wing, Sacramento, CA, for the petitioner-appellant.

Mark A. Johnson, Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

On Remand from the United States Supreme Court. D.C. No. CV-89-00736-DFL.

Before REINHARDT, O'SCANNLAIN, and PAEZ, Circuit Judges.

REINHARDT, Circuit Judge.


On July 15, 2003, we filed an opinion in this case holding that there is a reasonable probability that as a result of instructional error the jury did not consider constitutionally mitigating 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. Payton, 544 U.S. ----, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005)." Brown v. Belmontes, --- U.S. ----, 125 S.Ct. 1697, 161 L.Ed.2d 518 (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 constitutional interpretation. Under AEDPA, if a state court reasonably determines the facts and correctly identifies the governing federal standard, a federal court can grant a writ of habeas corpus only if the state court was objectively unreasonable 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," Williams v. Taylor, 529 U.S. 362, 387 n. 14, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (plurality opinion), we must be careful not to confuse AEDPA's deferential 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, 120 S.Ct. 1495. The issue here is not the AEDPA issue that the Court confronted in Payton, 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

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trial judge's instructions, resulted in a reasonable probability that the jury did not consider Belmontes' principal mitigating evidence, we reached an independent 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 merits. Having carefully reviewed Payton, and our previous independent determination of the constitutional question at issue, we find no reason to change our judgment on the matter. We reaffirm our previous opinion, and reiterate it below. 1


In this pre-AEDPA death penalty case, Petitioner Fernando Belmontes, Jr., appeals the district court's denial of his petition for writ of habeas corpus. Because the jury was not instructed that it must consider Belmontes' principal mitigation 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 instructional 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 relief from the judgment of conviction and the finding of special 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.


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, California, 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.

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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 discovering the theft, McConnell threw Vasquez and his friends out of the house. The group subsequently discussed their dislike of McConnell.

Police investigation of the individuals who had been present at the party extended to Vasquez, and ultimately to Bolanos, who drove a distinctive black Chevy. The police recognized 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 involved in the events that led to McConnell's death; he identified 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 residence, 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 McConnell'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, carrying 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: Belmontes 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

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trunk and got back inside the car, while Vasquez walked to the front door to assist Belmontes. Shortly thereafter, Belmontes and Vasquez emerged from the back door of the house carrying stereo components. Belmontes was sprinkled with blood...

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