Payton v. Woodford

• Decision Date: 01 August 2002
• Docket Number: No. 00-99000.,No. 00-99003.,00-99000.,00-99003.
• Citation: 299 F.3d 815
• Parties: William Charles PAYTON, Petitioner-Appellee, v. Jeanne WOODFORD, Warden, Respondent-Appellant. William Charles Payton, Petitioner-Appellant, v. Jeanne Woodford, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F.3d 815

William Charles PAYTON, Petitioner-Appellee, v. Jeanne WOODFORD, Warden, Respondent-Appellant.

William Charles Payton, Petitioner-Appellant, v. Jeanne Woodford, Warden, Respondent-Appellee.

No. 00-99000.

No. 00-99003.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 20, 2002.

Filed August 1, 2002.

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Nancy Palmieri, Deputy Attorney General, Esteban Hernandez, Deputy Attorney General of the State of California, Los Angeles, CA, for respondent-appellant-cross-appellee.

Dean R. Gits, Deputy Federal Public Defender for the Central District of California, Las Angeles, CA, Rosalie L. Rakoff A Professional Corporation Culver City, CA, for petitioner-appellee-cross-appellant.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. Nos. CV-94-04779-R, CV-94-04779-R.

Before SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, TROTT, FERNANDEZ, T.G. NELSON, TASHIMA, W. FLETCHER, PAEZ, BERZON and TALLMAN, Circuit Judges.

Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Tallman.

OPINION

PAEZ, Circuit Judge.

A California jury convicted Petitioner-Appellee William Charles Payton of the first degree murder and rape of Pamela Montgomery, and the attempted murder of Patricia Pensinger and her son, Blaine Pensinger. The jury imposed the death penalty. Payton appealed both the underlying conviction and the death sentence.

At the penalty phase of a trial in which a death sentence is at stake, a state may not preclude the jury from considering any mitigating circumstance "that the defendant proffers as a basis for a sentence less than death." Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (internal quotations and citations omitted). The California death penalty statute channels the jury's assessment of the appropriate penalty into an eleven-factor test that structures the jury's weighing and balancing of the aggravating and mitigating circumstances. The first ten factors instruct the trier of fact to evaluate various circumstances specific to the crime and to account for the defendant's age and prior convictions. The eleventh factor — factor (k) — functions as a catch-all, enabling the jury to consider any other circumstance that the defendant presents in mitigation of a death sentence.

We are confronted here with the issue of whether, in Payton's trial, the jury instructions regarding factor (k) impermissibly limited its constitutionally-mandated role as a vehicle for permitting the jury to consider all the mitigating evidence presented regarding whether Payton deserved a life term rather than a death sentence. In instructing the jury, the trial court employed the then-existing model jury instructions which incorporated the multi-factor test in the statute. 1 California Jury Instructions, Criminal ("CALJIC") 8.84.1 (4th ed.1979). That instruction simply quotes factor (k), directing the jury to consider any circumstance "which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Id.; Cal.Penal Code § 190.3 (1978). The Supreme Court, reviewing the same jury instruction in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), held that the text of factor (k), as clarified by the trial court, enabled the jury to consider pre-crime character and background evidence. The Court did not address the question of factor (k)'s application to post-crime evidence of rehabilitation, and did not have occasion to evaluate the effect on the jury of a prosecutor's contention that such evidence could not be considered. Those questions squarely confront us here.

At the penalty phase of Payton's trial, the only evidence offered in mitigation was Payton's post-crime conversion to Christianity and his good works while in jail, which were offered under factor (k). The defense offered no other evidence then or at any other time during his trial. In closing argument, the prosecutor erroneously told the jury that factor (k) did not encompass the only evidence Payton offered to mitigate a sentence of death. Although defense counsel objected to the prosecutor's argument, the trial court failed to cure the error.

On automatic appeal to the California Supreme Court, Payton argued, among other things, that he was deprived of a fundamentally fair trial because the trial court's instructions and the prosecutor's erroneous argument led the jurors to believe that they were not permitted to consider Payton's mitigating evidence. The California Supreme Court affirmed the conviction and sentence. People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (1992), cert. denied, 510 U.S. 1040, 114 S.Ct. 682, 126 L.Ed.2d 649 (1994). Subsequently, the California Supreme Court denied Payton's petition for a writ of habeas corpus. Payton then filed a petition for habeas corpus relief in federal court under 28 U.S.C. § 2254 (1994). The district court concluded that the penalty phase of the trial was fundamentally unfair and granted a writ of habeas corpus requiring either a new penalty trial or the reduction of Payton's sentence to a life term without parole. A divided three-judge panel of our court reversed the grant of the writ as to the penalty phase. Payton v. Woodford, 258 F.3d 905 (9th Cir.), reh'g en banc granted, 273 F.3d 1271 (2001).

We then agreed to rehear this case en banc. We affirm the district court's judgment in full. We hold that it is reasonably likely that the text of factor (k) and the trial court's failure to correct the prosecutor's misstatements about the reach of factor (k) caused the jury to disregard relevant mitigating evidence, and that this error was not harmless.¹

Background²

In 1980, while spending the night at Patricia Pensinger's home, Payton raped Pamela Montgomery and stabbed her to death. Payton then entered the bedroom of Pensinger and her son Blaine, stabbed each of them repeatedly, and fled. Payton was charged with the first degree murder and rape of Montgomery, and the attempted murders of Pensinger and her son.

At the guilt phase of Payton's jury trial, the prosecution presented testimony from the law enforcement officers who observed the crime scene; forensics experts who confirmed that saliva and semen samples taken from Montgomery's body were consistent with Payton's; Patricia and Blaine Pensinger who gave victims' accounts of the attacks; Payton's wife, who stated that soon after the attacks she saw blood on Payton's clothes, face, hands and penis as well as fingernail scratches and digs on his legs and back; and a fellow inmate, Alejandro Garcia, who recounted that Payton admitted that he raped and stabbed Montgomery and stabbed the Pensingers because he "had this urge to kill." The defense called no witnesses, and the jury convicted on all counts.

During the penalty phase, the prosecution presented as a witness a fellow inmate who testified to his jailhouse conversations with Payton in which Payton admitted that he had "severe problems with sex and women," that he wanted to "stab them and rape them," and that every "wom[a]n on the street he [saw] was a potential victim, regardless of age or looks." Payton's former girlfriend related that she had once awakened to find Payton holding a kitchen knife to her neck, and that he had stabbed her chest and arms. After she pushed him off, he stayed with her and held a towel around her bleeding arm until the police arrived.

The defense presented eight witnesses, including Payton's pastor, a deputy sheriff, four inmates, his mother, and the director of a religious organization ministering to prisoners. Their testimony, taken as a whole, tended to show that Payton had been "born again," made a sincere commitment to God, and was performing good works in jail.

Payton's pastor testified that in his opinion, Payton's conversion was credible and that he was "sincere in his statement and commitment to the Lord." The director of a religious outreach organization ministering to prisoners testified to her numerous conversations with Payton about his spiritual commitment and its manifestation in the bible study groups he established with other inmates. She described his conversion of other inmates, his admission to a correspondence bible college, and his writings.

Four inmates testified that they believed that Payton's religious conversion was sincere and that he had a calming influence on other inmates. One testified that Payton's intervention prevented him from committing suicide. A deputy sheriff assigned to Payton's jail facility related that Payton led prayer meetings and had a positive influence on other inmates. Payton's mother described praying together with her son and discussing religion on a weekly basis. Asked if she had noticed a change in her son, she responded: "Oh, yes.... He's totally immersed in the Lord.... He's an instrument of the Lord as far as he's concerned."

Prior to closing arguments in the penalty phase, the judge held an in-chambers conference with the attorneys about the jury instructions. They discussed the application of the multi-factor CALJIC instruction that guides the jury in determining whether to impose a sentence of life imprisonment or death.³ Factor (k), the eleventh and final factor, directed that the jury consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." CALJIC 8.84.1. Payton's counsel sought an amendment to the instruction that expressly would have directed the jury to consider "evidence of the defendant's character, background, history, mental condition and physical condition."⁴ Although the trial judge agreed with the defense counsel's interpretation of factor (k), he declined the request because he was reluctant to alter the instruction insofar as it reflected verbatim the text of California Penal...