Payne v. Borg

• Decision Date: 03 March 1993
• Docket Number: Nos. 91-15678,91-15867,s. 91-15678
• Citation: 982 F.2d 335
• Parties: Orrin W. PAYNE, Petitioner-Appellee, Cross-Appellant, v. Robert BORG, Warden, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 335

982 F.2d 335

Orrin W. PAYNE, Petitioner-Appellee, Cross-Appellant, v. Robert BORG, Warden, Respondent-Appellant, Cross-Appellee.

Nos. 91-15678, 91-15867.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 12, 1992.

Memorandum Filed Oct. 2, 1992.

Order and Opinion Filed Dec. 10, 1992.

As Amended on Denial of Rehearing and

Rehearing En Banc March 3, 1993.

Thomas A. Brady, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant.

Quin Denvir, Sacramento, CA, for petitioner-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ALARCON, CYNTHIA HOLCOMB HALL and KLEINFELD, Circuit Judges.

ORDER AND OPINION ORDER

The memorandum disposition filed October 2, 1992, is redesignated a published and authored opinion and amended in its entirety.

OPINION

KLEINFELD, Circuit Judge:

Petitioner Orrin W. Payne was found guilty in state court of first degree murder and of a special circumstance that the murder was committed during the course of a burglary. Payne filed this petition for a writ of habeas corpus, contesting only the validity of the special circumstance finding, which resulted in a sentence of life imprisonment without the possibility of parole. The district court granted habeas relief. The state appeals its finding that there was insufficient evidence to prove, beyond a reasonable doubt, that Payne had the necessary intent to support his special circumstance conviction. Payne cross-appeals the district court's denial of his two other due process claims: (a) that the state trial judge failed to make a sufficient finding on the intent issue; and (b) that the state appellate court acted improperly in presuming the trial judge found the requisite intent. We affirm in part and reverse in part, with the effect that the state judgment stands.

BACKGROUND

I. Facts

The parties substantially agree on the facts of the case, but differ as to what inferences may be reasonably drawn from them. Only one witness testified, ¹ Michael Hynan, the victim's husband. On December 7, 1982, at approximately 7:45 p.m., he returned from work to his home in San Jose. Mr. Hynan shared his home with his wife, Kathline, and their two young daughters. As he got out of his car, he noticed two identical red ten speed bicycles hidden on his property behind a bushy yucca plant. He also noticed that a gate was ajar. From the outside of the house, he could see that his daughter was in the family room watching television and his wife was in the kitchen on the telephone. Mr. Hynan pounded loudly and repeatedly on the sliding glass door that led to the family room. His daughter heard him over the television and tried to unlock the glass door but could not. Then Mrs. Hynan left the telephone for a moment and unlocked the glass door to allow her husband to enter. He told her to call the police because "somebody's in the backyard."

While Mrs. Hynan called the police, Mr. Hynan went to the master bedroom to get his pellet pistol from the closet. As he turned around from the closet, Payne, a larger man, grabbed his right hand and put his forearm against Mr. Hynan's neck. When Mr. Hynan yelled for help, Payne put his forearm around his neck and stated in an urgent, low, commanding tone, "Shut up or I'll blow your fucking head off." Mr. Hynan dropped his pellet pistol, and Payne spun him around and pushed him into the living room, where Payne told Mr. Hynan to get on the floor face down and pushed him down.

Mr. Hynan sensed that Payne remained near him, and saw and heard nothing to indicate that Payne was moving away. Meanwhile, Mr. Hynan saw codefendant Henry Williams enter the house, dressed, like Payne, in a hooded sweatshirt with the hood tied securely around his head. Williams immediately turned right into the family room and yelled in a hurried, frightened tone, to Mrs. Hynan, "Put the fucking phone down." Mrs. Hynan said "Please don't shoot me." Williams immediately shot her twice, killing her.

Williams then hurried over to Mr. Hynan, put his foot on Mr. Hynan's head and demanded his money. Without changing position, Mr. Hynan reached into his pants pocket, pulled out $17.00 and threw it on the floor. Mr. Hynan saw a hand pick up the money and felt his checkbook and wallet removed from his back pocket. He then saw both men leave through the sliding glass door leading to the rear patio. During this entire time, Williams and Payne never spoke to each other. Mr. Hynan immediately went to his wife's side. Kathline Hynan, pregnant with the couple's third child, was already dead.

II. State Court Proceedings

Payne was found guilty of first degree murder under California's felony murder statute. See Cal.Penal Code § 189. The trial judge found that the third alleged special circumstance, that the murder was committed during the course of a burglary, was true, resulting in a sentence of life imprisonment without the possibility of parole under Penal Code section 190.2(a)(17)(vii). ² The court further found that Payne "intentionally aided and abetted in the commission of murder in the first degree in that he intentionally and illegally restrained Michael Hynan by force and fear as Henry Lee Williams accomplished the first degree murder." The defendant moved to modify the verdict by striking the special circumstance, based upon sufficiency of the evidence. The defense argument was that the evidence did not show that Payne acted with the intention of assisting Williams to kill Mrs. Hynan. The state trial judge considered this argument, reconsidered the evidence, and reaffirmed the finding.

The judgment of the superior court was affirmed by a divided California Court of Appeal. The California Supreme Court granted Payne's petition for review and ordered reconsideration in light of two subsequent decisions. On reconsideration the Court of Appeal affirmed again, and this time the Supreme Court denied review.

III. Federal Court Proceedings

On April 3, 1991, the district court issued an order and a judgment granting Payne's petition for writ of habeas corpus, filed under 28 U.S.C. § 2254. The court ruled that the evidence was constitutionally insufficient to support the special circumstance finding.

The state filed a timely notice of appeal, and Payne filed a timely cross-appeal on two alternative claims denied by the district court.

STANDARD OF REVIEW

The relevant standards of review are critical to the outcome of this case. We review a district court's grant or denial of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). A federal tribunal does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. The federal court determines only whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). The state tribunal's authority as finder of fact is preserved by considering all the evidence in the light most favorable to the prosecution. Id. If no rational trier of fact could have found proof of guilt beyond a reasonable doubt, then the writ is granted. Id. at 324, 99 S.Ct. at 2791-92. But if the historical facts would support conflicting inferences, the federal court "must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution." Id. at 326, 99 S.Ct. at 2793. Paradis v. Arave, 954 F.2d 1483, 1486 (9th Cir.1992).

The Jackson review is de novo in the sense that we perform it ourselves, instead of reviewing only to determine whether the state court reasonably applied Jackson, or whether petitioner had a full and fair opportunity to litigate sufficiency of the evidence in state court. But Jackson de novo review is not the same as de novo review of facts. Jackson does not permit us or the district court to grant the writ because we are not sure that Payne intended to aid in the killing. We are required to deny the writ, even if we ourselves might not be persuaded beyond a reasonable doubt, if any rational trier of fact could have been so persuaded, considering all the evidence in a light most favorable to the prosecution and deferring to the trier of fact's presumed resolution of conflicting inferences most favorably to the prosecution. Jackson, 443 U.S. at 319, 326, 99 S.Ct. at 2789, 2792-93; Wright v. West, --- U.S. ----, 112 S.Ct. 2482, 2492-93, 120 L.Ed.2d 225 (1992).

DISCUSSION

I. The State's Appeal

In People v. Anderson, 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306 (1987), the California Supreme Court held that when a defendant is sentenced for first degree murder, intent to kill is not an element of felony murder special circumstance under section 190.2(a)(17) if the defendant was the gunman, but if the defendant was an aider and abetter, section 190.2(b) requires that intent be proven. Id. 240 Cal.Rptr. at 611, 742 P.2d at 1332. The defendant must have acted with intent to aid in the killing, as opposed to merely intending to aid in the underlying felony. Id. 240 Cal.Rptr. at 609, 742 P.2d at 1330; see also People v. Sanders, 51 Cal.3d 471, 273 Cal.Rptr. 537, 562, 797 P.2d 561, 586 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 2249, 114 L.Ed.2d 490 (1991). A person is guilty of aiding in the commission of a crime if he acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of the offense." People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 67, 674 P.2d 1318, 1325 (1984). ³ The issue before this court is whether the evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt, as required by the due...