Beardslee v. Brown

• Decision Date: 29 December 2004
• Docket Number: No. 01-99007.,01-99007.
• Citation: 393 F.3d 1032
• Parties: Donald BEARDSLEE, Petitioner-Appellant, v. Jill BROWN, Warden, of the California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

393 F.3d 1032

Donald BEARDSLEE, Petitioner-Appellant, v. Jill BROWN, Warden, of the California State Prison at San Quentin, Respondent-Appellee.

No. 01-99007.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 28, 2004.

Filed December 29, 2004.

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Michael Laurence, Barbara Saavedra, Susan Garvey, San Francisco, CA, attorneys, for petitioner-appellant.

Dane R. Gillette, Deputy Attorney General, San Francisco, CA, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-92-03990-SBA.

Before TASHIMA, THOMAS and PAEZ, Circuit Judges.

THOMAS, Circuit Judge.

Donald Beardslee seeks federal habeas relief pursuant to Sanders v. Woodford, 373 F.3d 1054 (9th Cir.2004), a decision recently issued by this Court. Beardslee was convicted by a jury in San Mateo County, California, of two counts of first degree murder with special circumstances and sentenced to death. The California Supreme Court affirmed his conviction and sentence. People v. Beardslee, 53 Cal.3d 68, 279 Cal.Rptr. 276, 806 P.2d 1311 (1991) ("Beardslee I"). Beardslee filed a habeas corpus petition in federal district court. The district court rejected each of his claims and dismissed the petition. We affirmed the district court's denial of habeas relief, see Beardslee v. Woodford, 358 F.3d 560 (9th Cir.2004), and the Supreme Court denied Beardslee's petition for a writ of certiorari, see Beardslee v. Brown, ___ U.S. ___, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004).

After denial of certiorari, but before the mandate was issued, Beardslee requested the issuance of an expanded certificate of appealability, arguing that he is entitled to relief under our decision in Sanders, a decision that was issued during the pendency of his petition for a writ of certiorari. In Sanders, we determined that the California Supreme Court, after invalidating two of four special circumstances, had failed to reweigh the mitigating and aggravating factors considered by the jury in imposing a death sentence or apply the correct harmless error standard. 373 F.3d at 1063. We held that this error had a substantial and injurious effect on the jury's verdict, and thus granted the writ. Id. at 1067-68 (citing Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

In the case before us, the California Supreme Court invalidated three of Beardslee's four special circumstances. See Beardslee I, 279 Cal.Rptr. 276, 806 P.2d at 1324-38. As in Sanders, the California Supreme Court did not review the effect of the special circumstances error on the jury's verdict under the harmless beyond a reasonable doubt standard. See id.; cf. Sanders, 373 F.3d at 1063; see also People v. Sanders, 797 P.2d 561, 590 (Cal.1990). We concluded that "[r]easonable jurists could debate whether, `in light of the record as a whole,' the three invalid special circumstances had a `substantial and injurious effect or influence' on the jury's death penalty verdict and therefore whether the error was not harmless." Beardslee v. Brown, 2004 WL 2965969, at *2 (9th Cir. Dec.16, 2004) (applying Brecht, 507 U.S. at 638, 113 S.Ct. 1710, harmless-error standard). In view of the change in the law caused by Sanders, we granted a temporary stay of the issuance of the mandate and, after briefing and oral argument, granted a certificate of appealability on the Sanders issue. Id. While this matter was pending, the State sought and obtained an execution date of January 19, 2005.

In view of the execution date, we ordered expedited briefing and oral argument.¹ After consideration of the briefs, oral argument, and the record, we conclude that, although the jury was instructed that it should consider the invalid special circumstances findings in its penalty determination, this error did not have a substantial and injurious effect on the verdict. Therefore, we deny relief and again affirm the judgment of the district court.

I

The essential facts of this case were described in our initial opinion, 358 F.3d at 565-68, and in the opinion of the California Supreme Court, 279 Cal.Rptr. 276, 806 P.2d at 1315-1318. While on parole for a murder in Missouri, Beardslee was charged with and convicted of the first degree murders of Paula (Patty) Geddling and Stacy Benjamin with premeditation and deliberation pursuant to Cal. Pen.Code, §§ 187, 189. The jury also found the special circumstances of concurrent conviction of multiple murders, id. at § 190.2(a)(3), and intentional killing for the purpose of preventing the victim from testifying as a witness to a separate crime id. at § 190.2(a)(10), true for each victim. A separate jury was empaneled for the penalty phase trial. It returned a sentence of death for the murder of Geddling and a sentence of life without possibility of parole for the murder of Benjamin.

On direct appeal, the California Supreme Court reversed one multiple-murder special circumstance, but found the error harmless. 279 Cal.Rptr. 276, 806 P.2d at 1338. The court reversed both of the witness-killing special circumstances, but also found the errors harmless. Id. at 1324. In neither case did the court analyze specifically whether the error was harmless beyond a reasonable doubt.

In Sanders, we determined that California employed a "weighing" system for capital cases. A weighing death penalty regime is one in which "`the sentencer [is] restricted to a weighing of aggravation against mitigation' and `the sentencer [is] prevented from considering evidence in aggravation other than discrete, statutorily-defined factors.'" Sanders, 373 F.3d at 1061 (alterations in original) (internal quotation marks omitted) (quoting Williams v. Calderon, 52 F.3d 1465, 1477 (9th Cir.1995)).² Under a weighing system, "the jury's sentencing discretion is not boundless — it must consider the defined list of aggravating factors." Id. at 1062. In weighing states, there is Eighth Amendment error (i.e., a lack of an individualized sentencing determination) "when the sentencer weighs an `invalid' aggravating circumstance in reaching the ultimate decision to impose a death sentence." Id. at 1059 (quoting Sochor v. Florida, 504 U.S. 527, 532, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992)). Thus, as we noted in Sanders:

an appellate court's invalidation of one or more of the sentencing factors may have a serious effect on individualized sentencing, because there is a real risk that the jury's decision to impose the death penalty rather than life imprisonment may have turned on the weight it gave to an invalid aggravating factor.

Id. at 1062.

Sanders held, however, on direct appeal that a remand for resentencing is not necessarily required to correct such an error. Id. at 1059. A state appellate court that invalidates an aggravating factor in a capital case may: "(1) remand for resentencing; (2) independently reweigh the remaining aggravating and mitigating circumstances under the procedure set forth in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), in which the state appellate court reweighs aggravating and mitigating circumstances that have already been found by a jury to exist; or (3) independently conclude that the sentencing body's consideration of the invalid aggravating circumstance was harmless beyond a reasonable doubt." Id. at 1060 (internal citations and quotation marks omitted).

Even if a state appellate court has not conducted such an analysis, a petitioner is not automatically entitled to federal habeas relief. Id. To grant relief, we must first conduct a separate harmless error analysis pursuant to Brecht, 507 U.S. at 638, 113 S.Ct. 1710, in order to determine whether the error "had a substantial and injurious effect" on the jury's verdict. Sanders, 373 F.3d at 1060 (citing Morales v. Woodford, 336 F.3d 1136, 1148 (9th Cir.2003), amended by 388 F.3d 1159 (9th Cir.2004)).

Thus, to prevail on the merits of his Sanders Eighth Amendment claim, Beardslee must demonstrate: (1) that his sentencing jury weighed an invalid special circumstance; (2) that the California Supreme Court did not properly review his claim by either independently reweighing the aggravating and mitigating factors or by finding the sentencing error harmless beyond a reasonable doubt;³ and (3) that the error had a "substantial and injurious effect or influence" on the jury's verdict.

II

A

Beardslee's penalty phase jury unquestionably considered invalid factors in reaching its death penalty verdict. Four death-qualifying special circumstances were presented to Beardslee's penalty phase jury: two witness-killing special circumstances and two multiple-murder special circumstances (one of each for the murder of Stacy Benjamin and one of each for the murder of Patty Geddling). The California Supreme Court invalidated both witness-killing special circumstances, since that special circumstance applies only to "the intentional killing of a person who witnessed a crime committed prior to, and separate from, the killing for the purpose of preventing the victim from testifying about the crime witnessed." Beardslee I, 279 Cal.Rptr. 276, 806 P.2d at 1325 (citation omitted). For the witness-killing circumstance to apply, "[t]he crime witnessed cannot be deemed prior to, and separate from, the killing when both are part of the same continuous criminal transaction." Id. (internal citations and quotations omitted). The California Supreme Court also held that Beardslee was erroneously charged with two multiple-murder special circumstances (one for each crime), which was impermissible double counting. Id. at 1339.

The California Supreme Court invalidated three of the four special circumstances in Beardslee's case, so there is no dispute that Beardslee's jury considered improper factors in reaching its death sentence. Thus, we agree with Beardslee that the...