The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with appointed counsel who is proceeding on a second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 In 2000, in Sacramento County Superior Court, petitioner was sentenced to a total term of 31 years to life, 25 years for manslaughter, with two prior strike convictions, five years for the prior serious felony conviction, a one-year enhancement for personal use of a deadly weapon, a knife. Second Amended Petition (hereafter, petition or ptn), p. 2. Petitioner sets forth the following claims, with claim 4 expressly abandoned: 1) petitioner's state and federal rights to due process were violated when he was found sane on less than substantial evidence and because California's definition of insanity of itself violates due process of law; 2) his right to due process was violated when the court acted arbitrarily and disregarded established state standards in denying petitioner's motion to dismiss one or more strike convictions; 3) his state and federal rights to due process were violated when the court imposed a 31-year-to-life sentence; 4) trial judge was not impartial (abandoned); 5) ineffective assistance of trial counsel. Petition, pp. 5-21.
Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The California Court of Appeal was the last state court to issue a reasoned opinion addressing most*fn2 of the claims raised in this action. See Respondent's Lodged Documents 4 & 6 & below. Accordingly, this court considers whether the denial of this claim by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision).
The opinion of the California Court of Appeal contains an accurate procedural summary of the case on appeal to that court:
Defendant Steven Anthony Guzman was charged with murdering his wife by using a knife. (Pen.Code, §§ 187, subd. (a), 12022, subd. (b)(1).) FN1 After an initial doubt was declared as to his mental status, the trial court found him competent to stand trial. (§ 1368.) Defendant entered a negotiated guilty plea to voluntary manslaughter, with use of a knife, and waived a jury trial on the issues of his sanity and the truth of the two prior serious felony convictions. The trial court found defendant sane and found the priors to be true. Defendant was sentenced to 31 years to life in prison.
FN1. All further statutory references are to the Penal Code unless otherwise indicated.
People v. Guzman, 2002 WL 1801768 *1 (Cal. App. 3rd Dist. 2002).*fn3
After independently reviewing the record, the court finds the factual summary of this case to be accurate and adopts it below:
On May 18, 1999, suffering from a delusion that his wife was engaged in a plot to murder him, defendant killed his wife by stabbing her four times in the back with a kitchen knife. Defendant began experiencing paranoid delusions in November 1998, after being stabbed in the face and hit on the head with bottles. He became addicted to methamphetamine. Defendant believed the FBI and CIA were out to kill him, and that his wife, then his girlfriend, was involved in the conspiracy. On four occasions, defendant went to the victim's advocate office at the district attorney's office because he was afraid he was going to be killed. On March 3, 1999, one advocate had an investigator assist defendant to the psychiatric unit at the UC Davis Medical Center.
Defendant moved to Reno for a few weeks to escape from the people who were trying to kill him. A Reno psychiatric center determined defendant was paranoid, but he was not involuntarily committed.
Defendant married the victim on April 26, 1999, three weeks before the stabbing.
At 1:00 p.m. on the day of the homicide, defendant went to the UC Davis Medical Center emergency room with a hamburger his wife bought for him the night before. Defendant believed his wife, the fast food restaurant, and the government were plotting to kill him. He wanted the hamburger tested for poison, so he could go to the police and have the people stopped who were trying to kill him. Clinical social worker Kevin Gutfeld evaluated defendant and found him to be classically paranoid and very anxious. Defendant told Gutfeld he believed his wife and the government were after him. Gutfeld did not believe defendant to be suicidal or homicidal, although he did believe defendant should be hospitalized. When Gutfeld was unable to walk defendant across the street to the county psychiatric center, defendant asked to stay in the waiting room of the emergency room.
Defendant called his wife to pick him up, but she told him to take a cab to the apartment. When he entered the apartment, he saw his wife using the computer and believed her to be communicating with "agents." He saw a knife on the table next to the desk. He picked up the knife and stabbed her in the upper back because he believed she would kill him. When she asked him why he was stabbing her, he thought that maybe she was not involved in the plot to kill him because she did not understand the reason he was stabbing her.
*2 Defendant called 911. He attempted to flag down a delivery driver. He ran to his father's house, who would not help him. He went to his mother's home and attempted to contact the police. He then went to the county psychiatric center and turned himself in. He was arrested that night.
After administration of antipsychotic medication for several days, defendant was released to the general jail population. Defendant's delusions reoccurred. Defendant was placed on Navane, an antipsychotic medication. Some months later, defendant again decompensated into paranoid ideation, after being off medication, believing that the jail workers were connected with FBI agents, who were giving him AIDS through blood tests. He was again placed on Navane.
On June 25, 1999, defense counsel declared a doubt as to defendant's competency to stand trial and two alienists-Dr. Bruce W. Ebert and Dr. John Alan Foster-were appointed to evaluate him. (§§ 1367-1368.) FN3 Defendant was found competent to stand trial on August 25, 1999.
FN3. Although both found defendant to be competent, both also thought he was disturbed. Dr. Ebert believed defendant's disorder might be based on organic problems, inasmuch as his mother and brother had brain tumors and his family members all had significant mental problems. Dr. Ebert surmised defendant suffered from a methamphetamine induced psychotic disorder with delusions, but did not rule out a delusional disorder.
It was stipulated by the parties that the trial court could review a number of documents as exhibits before trial, including police and coroner reports, photographs, competency evaluations, and sanity evaluations.
At trial, defendant was still taking Navane. Defendant testified that he did not know for sure whether his wife had been trying to kill him, but was "pretty sure" other people had been trying to kill him. Three appointed alienists, Dr. Daniel Edwards, Dr. Eugene Roeder, and Dr. Michael Jaffe testified at the sanity trial.
Dr. Edwards, a neuropsychologist called by the defense, met with defendant four times and administered a variety of tests. On June 9, 1999, Dr. Edwards found defendant "too psychotic" to cooperate in a clinical interview. In December 1999, Dr. Edwards found defendant to be suffering from a delusional disorder that distorted his ability to know stabbing his wife was wrong. Dr. Edwards concluded defendant met the criteria for not guilty by reason of insanity. Dr. Edwards further concluded that, at the time of the stabbing, defendant was unable to understand the nature and quality of his acts and did not know it was wrong to stab his wife until she asked him why he had stabbed her.
Dr. Roeder, a psychologist called as a prosecution witness, found defendant to be suffering from a psychotic disorder that was most likely induced by methamphetamine. After one interview, Dr. Roeder concluded defendant understood the nature and quality of his act of stabbing his wife in a limited way, but believed stabbing his wife was right because he was defending himself.
Dr. Jaffe, a prosecution witness, is chief psychiatrist at California State Prison, Sacramento. He diagnosed defendant as suffering from a drug-induced psychotic disorder with delusions. Dr. Jaffe concluded defendant understood the nature and quality of his act when he stabbed his wife and further concluded defendant knew it was wrong to stab his wife before, during, and after he killed her.
*3 The trial court found defendant to have been sane at the time he killed his wife. The trial court concluded defendant did understand the nature and quality of his acts. While conceding that the question of whether defendant knew the stabbing was wrong was a much closer question, the trial court concluded defendant morally and legally understood right and wrong at the time of the killing. The trial court did find defendant suffered from a delusion that his wife was going to kill him and that he suffered from heightened fear. However, the trial court found that there was not a preponderance of the evidence that defendant's state of mind was that he was morally and legally justified to act in self-defense.
The trial court found two 1989 prior serious felony convictions to be true. (§§ 667, subd. (a), 667, subd. (b)-(I).) One prior robbery conviction (§ 211) was found true, as was a second conviction of brandishing a firearm at a police officer (§ 417, subd .(b)). The trial court determined the brandishing charge was a serious felony under section 1192.7, subdivision (c)(8), because defendant personally used a firearm in the offense.
The trial court denied defendant's request to strike one of the prior felony convictions. The trial court found that although both prior convictions arose in the same case from the same date of commission, they involved separate threats of violence. Defendant also had a history of criminal conduct between the commission of the offenses and the current offense. The trial court also found that the taking of a life in the current offense made it inappropriate to treat defendant as outside the spirit of the three strikes law. However, the trial court declined to impose the five-year enhancement for the second prior conviction "in the interest of justice." Defendant was sentenced to 31 years to life in prison.
People v. Guzman, 2002 WL 1801768 *1-3 (Cal. App. 3rd Dist. 2002).*fn4
Claim 1 State and Federal Due Process violations when petitioner found sane on less than substantial evidence and because California's definition of insanity itself violates Due Process Petitioner cites no case law for the argument that the trial court's finding of sanity violated petitioner's Fourteenth Amendment rights or that California law, requiring proof by the petitioner of the insanity defense by a preponderance of the evidence that not only could he not know the nature and quality of the crime of which he is accused, but also that he could not distinguish right from wrong at the time of the act due to his mental illness, violates due process.
Ptn, p. 6. Petitioner asserts that the federal constitution requires that states permit an individual to claim that, due to a mental defect, one could not know the nature and quality of the crime of which one is accused, although, again, no case authority is cited for that proposition. Id.
Petitioner does set forth exhaustively the factual predicate for the claim that "substantial evidence" did not support the trial court's finding of sanity. Ptn, pp. 5-15. Petitioner is correct that there is ample evidence in the record demonstrating that petitioner stabbed his wife during a psychotic episode, nor does respondent dispute that petitioner suffered from a delusion that his wife was engaged in a conspiracy to murder him at the time that he killed her. Petitioner identifies the inception of his mental health problems as stemming from a November, 1998, bar fight, wherein petitioner was stabbed in the face, requiring numerous stitches, and was hit on the head with bottles; there is no doubt, as well, that petitioner was diagnosed as having a delusional disorder, complicated by "chronic methamphetamine intoxication." Ptn, pp. 5-6. The record showed that petitioner had on four occasions asked for help from the District Attorney's Victims' Advocates office, and that, on March 3, 1999, the victim advocates were sufficiently concerned by petitioner's actions to have one of their investigators make sure that he got to a medical center (U.C. Davis Medical Center). RT 123, 126-130. On May 18, 1999, the date of the offense, Kevin Gutfeld, a UCD Medical Center clinical social worker, testified petitioner brought a hamburger to the UCD Medical Center emergency around 1 p.m., asking that it be tested for poison, saying that his wife had bought it, and voicing his suspicion that she and the fast food chain and the government were all trying to kill him; Gutfeld described petitioner at that time as "classically paranoid," "very anxious, very tense," but based on his responses ruled out that petitioner was suicidal or homicidal. RT 23-30. He found him to be in a lot of "intrapsychic or emotional pain;" although Gutfeld did not feel petitioner was sufficiently a danger to himself or others to place a hold on him, he tried to get petitioner to voluntarily proceed to the Sacramento County Mental Health Center. RT 30-34. Instead, a while later, petitioner returned to the UCD Med Center emergency room waiting area, and then went home, whereupon he ended by stabbing his wife in the deluded belief that she was about to kill him.
As noted in the state appellate court opinion below, all three medical experts who testified on the issue of petitioner's mental state, one for the defense (Dr. Edwards) and two for the prosecution (Drs. Roeder and Jaffe), described petitioner as suffering from a "delusional disorder and killed his wife in the unreasonable belief that it was necessary to do so in order to protect himself." Ptn, at 6. The only trial issue was whether petitioner was legally insane at the time of the killing. Id.
The Third District Court of Appeal provided the following analysis as to this claim:
Defendant argues that substantial evidence does not support the trial court's finding he was sane at the time of the commission of the offense. We disagree.
Commonly referred to as the " M'Naghten test," FN4 the California statutory standard for insanity is:
FN4. M'Naghten's Case (1843) 10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722]. "In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." (Pen.Code, § 25, subd. (b).)
In People v. Skinner (1985) 39 Cal.3d 765, 773-775, 217 Cal.Rptr. 685, 704 P.2d 752, the Supreme Court held that, despite the statutory use of "and", the two prongs of the traditional standard should be separated by an "or." This disjunctive use of the M'Naghten standard stands "among the fundamental principles of our criminal law." ( Id. at p. 776, 217 Cal.Rptr. 685, 704 P.2d 752; People v. McCowan (1986) 182 Cal.App.3d 1, 17, 227 Cal.Rptr. 23.)
*4 We determine whether there was substantial evidence to support the verdict of sanity under general appellate principles governing sufficiency of evidence. The question is whether any rational trier of fact could have made this finding, based on evidence which is reasonable, credible, and of solid value. (See People v. Alvarez (1996) 14 Cal.4th 155, 224, 58 Cal.Rptr.2d 385, 926 P.2d 365; People v. Johnson (1980) 26 Cal.3d 557, 575-576, 162 Cal.Rptr. 431, 606 P.2d 738.) This announced rule of appellate review does not change if the issue is one of insanity. As was stated in People v. Dean (1958) 158 Cal.App.2d 572, 577, 322 P.2d 929: "The finding of the trier of fact upon the issue of insanity cannot be disturbed on appeal if there is any substantial and credible evidence in the record to support such finding." The question in the case before us is whether there is any reasonable hypothesis upon which the trial judge could have found the defendant legally sane during the commission of the crime. ( People v. Belcher (1969) 269 Cal.App.2d 215, 220, 74 Cal.Rptr. 602.) As used in the sanity test, knowing right from "wrong" is not limited to that which is legally wrong, but includes that which is morally wrong in a sense generally accepted by society. ( People v. Coddington (2000) 23 Cal.4th 529, 608-609, 97 Cal.Rptr.2d 528, 2 P.3d 1081; People v. Skinner, supra, 39 Cal.3d at p. 783, 217 Cal.Rptr. 685, 704 P.2d 752.) A person who, by reason of mental disease or mental defect, is incapable of distinguishing what is morally right from what is morally wrong is legally insane, even if he may understand the act is unlawful. ( People v. Coddington, supra, at p. 608, 97 Cal.Rptr.2d 528, 2 P.3d 1081.) But, if a person is able to understand his action is legally wrong, this may permit the trier of fact to infer that he also knew it was morally wrong. (Ibid.) Presuming in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence, we find the trial court's decision was supported by substantial evidence. In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. ( People v. Mercer (1999) 70 Cal.App.4th 463, 467, 82 Cal.Rptr.2d 723.) The reviewing court may not reweigh the evidence when assessing its sufficiency. ( People v. Johnson, supra, 26 Cal.3d at p. 578, 162 Cal.Rptr. 431, 606 P.2d 738.)
Three experts testified at trial. It was undisputed that defendant suffered from a delusional disorder, variously described as a "drug-induced psychotic disorder with delusions" by Dr. Jaffe, a methamphetamine-induced psychotic disorder by Dr. Roeder, and a delusional disorder that might or might not be amphetamine-induced psychosis, by Dr. Edwards. It was virtually undisputed that defendant somewhat understood the nature and quality of his act in stabbing his wife. The close question was whether he knew right from wrong at that time. Although the experts disagreed, with only Dr. Jaffe opining that defendant clearly knew right from wrong, it is the relative force of the evidence rather than the number of witnesses, that must persuade the trier of fact.
*5 Dr. Jaffe opined that defendant knew right from wrong the "whole time," and particularly when he stabbed his wife. Dr. Jaffe's opinion was that although defendant actually believed he needed to use the knife to protect himself, his opinion was based upon defendant's own statements to him that he had "overreacted" and "fucked up," in addition to the circumstances of the homicide. The trial court also observed defendant's own testimony that he knew the stabbing was wrong immediately after his wife asked why he did it, but not immediately before.
The trial court was presented with the fine question concerning when defendant was "in reality" and unaware of the wrongfulness of his acts. The trial court found that although defendant's mental disorders caused him to be in fear of his wife, the fear was not so great as to erase his understanding that what he was doing was wrong. The court stated that the evidence supported a finding that defendant believed he knew it was morally and legally wrong to stab his wife.
Additional facts in the record noted by the trial court supported its finding of sanity. Defendant admitted to Dr. Jaffe, for example, that the presence of the knife in the middle of the afternoon, in and of itself, was not unusual because his wife used the knife to open the mail. Defendant's paranoia did not cause him to flee from his wife, as he had earlier fled the area when he was afraid. He contacted her to pick him up. Finally, it was also unclear exactly when the victim asked defendant why he was stabbing her-at the conclusion of the attack or during the attack. Dr. Jaffe opined that people do not "flip-flop" back and forth from reality to delusion. Therefore, we conclude the trial court's finding of sanity is supported by substantial evidence.
Whether California's Insanity Test is Unconstitutional
Petitioner must be simply preserving this issue for the record because there is no established Supreme Court authority finding the M'Naghten test unconstitutional, or that tasking the defendant with proving insanity is unconstitutional.
The Supreme Court has found state statutory schemes which burden the defendant with proving insanity do not violate the Fourteenth Amendment's due process guarantee. Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002 (1952) (upholding Oregon statute requiring defendant to prove insanity beyond a reasonable doubt, once commission of crime has been proven). In Patterson v. New York, 432 U.S. 197, 205, 97 S.Ct. 2319 (1977), the Supreme Court noted that post-In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)*fn5 and Mullaney v. Wilbur, 421 U.S. 648, 95 S.Ct. 1881 (1975),*fn6 it had "confirmed that it remained constitutional to burden the defendant with proving his insanity defense" in dismissing a challenge to the "continuing validity of Leland v. Oregon," citing Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226 (1976), "as not presenting a substantial federal question."
[A]lthough an insanity defense may be relevant to the element of mens rea, FN5 "sanity is not an element of the crime" under California law, even when the defendant pleads not guilty by reason of insanity. See [People v.] Hernandez, 22 Cal.4th at 522, 93 Cal.Rptr.2d 509, 994 P.2d 354 (noting that the affirmative defense of insanity is separate and independent from the elements of any underlying crime); see also People v. Wagoner, 89 Cal.App.3d 605, 613, 152 Cal.Rptr. 639 (1979) (citation omitted).
FN5. As then-Justice Rehnquist has observed, "[a]lthough ... evidence relevant to insanity as defined by state law may also be relevant to whether the required mens rea was present, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime." Mullaney v. Wilbur, 421 U.S. 684, 705-06, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (concurring opinion).
Pop v. Yarborough, 354 F. Supp.2d at 1137.
Moreover, although the United States Supreme Court has long recognized that "the Due Process Clause affords an incompetent defendant the right not to be tried, [citations omitted], we have not said that the Constitution requires the States to recognize the insanity defense. See, e.g., Powell v. Texas, 392 U.S. 514, 536-537, 88 S.Ct. 2145, 2156-2157, 20 L.Ed.2d 1254 (1968)." Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579 (1992).
Nor, as respondent notes, does a state's application of the M'Naughten rule*fn7 violate the constitution. Answer, p. 16, citing Hunt v. Eyman, 405 F.2d 384, 385 (9th Cir. 1968). Although conceding state court exhaustion as to the first portion of this claim, respondent nevertheless asserts that part of the claim setting forth that California's definition of insanity violates due process is not exhausted. Answer, p. 9 & n. 3, citing 28 U.S.C. § 2254(b). Petitioner does not dispute that this portion of the first claim is unexhausted. Respondent, contending there is no merit to such a claim, asks the court to reach the argument on the merits notwithstanding a failure to exhaust state remedies because the court can dispose of such claims. Answer, p. 16, citing Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (petition which lacks merit may be dismissed without resolving the question of lack of exhaustion). Plainly, as the Supreme Court has never found that the constitution requires the states to recognize an insanity defense,*fn8 California's statute cannot run afoul of the Fourteenth Amendment; moreover, the Supreme Court has most recently emphasized that "it is not 'an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, __ S.Ct. __, 2009 WL 746274 *2 (Mar 24, 2009), citing Wright v. Van Patten, 552 U.S.___, ___, 128 S.Ct. 743 (2008).*fn9 This portion of the first claim should be denied.
Generally, when a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Under Jackson, the court reviews the entire record when the sufficiency of the evidence is challenged on habeas. Adamson v. Ricketts, 758 F.2d 441, 448 n. 11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev'd, 483 U.S. 1 (1987). It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. "The question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could have reached the same conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991).
If the trier of fact could draw conflicting inferences from the evidence, the court in its review will assign the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). The fact that petitioner can construct from the evidence alternative scenarios at odds with the verdict does not mean that the evidence was insufficient, i.e., that no reasonable trier of fact could have found the conviction scenario beyond a reasonable doubt.
In reviewing the sufficiency of the evidence supporting a conviction, we search the record to determine "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986). The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict. United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982); United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981), overruled on other grounds, United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc).
United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991)(emphasis added).
Superimposed on these already stringent insufficiency standards is the AEDPA requirement that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).
However, these traditional standards for reviewing sufficiency of the evidence do not precisely fit the situation where the defendant, not the state, has the burden of proof, and that burden is a preponderance of the evidence, and not beyond a reasonable doubt.
In California, insanity is an affirmative defense to a charged crime and at the trial's sanity phase, "there is a rebuttable presumption the defendant was sane when the crime was committed, and it is his burden to prove otherwise by a preponderance of the evidence." Pop v. Yarborough, 354 F. Supp.2d 1132, 1137 (C.D. Cal. 2005), citing In re Dennis, 51 Cal.2d 666, 673, 335 P2d 657 (1959). In the Fifth Circuit, where Louisiana law with regard to a legal insanity defense, like that of California within this circuit, makes sanity a rebuttable presumption by defendant to prove by a preponderance of the evidence, frames "the question under the Jackson sufficiency standard" in this context as "whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt that [petitioner] did not prove by a preponderance of the evidence that he was insane at the time of the offense." Perez v. Cain, 529 F.3d 588, 594 (5th Cir. 2008). The Fifth Circuit did not explain why the trial court's factual finding of sanity would not be treated the same as any other factual finding short of a finding of guilt at trial. On habeas review, the state court's factual findings are afforded a presumption of correctness which presumption it is petitioner's burden to rebut "by clear and convincing evidence." Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325 (2005), citing 28 U.S.C. § 2254(e)(1); Moses v. Payne, 555F.3d 742, 746 n. 1 (9th Cir. 2009), § 2254 (e)(1) and Hernandez v. Small, 282 F.3d 1132, 1135 n. 1 (9th Cir. 2002). In other words, petitioner would bear the burden under this less stringent test to show that the trial court's determination was not based on substantial evidence.*fn10
The undersigned need not find which standard of review is the one to be applied because under either one, the court cannot find that the trial court's non-insanity finding based on a preponderance of the evidence was incorrect beyond a reasonable doubt; nor can it find that the trial court's non-insanity finding was based on less than substantial evidence.
This is not to say that another court may not have made the same determination; in particular, the court notes that the trial court placed great emphasis on Dr. Jaffe's determination that petitioner understood right and wrong when his wife was stabbed, but the record demonstrates some recognition of a lack of coherence on this point by Dr. Jaffe himself:
Q: Do you believe Mr. Guzman was in reality during the time of the stabbing?
A: I believe he was in reality the whole time.
Q: Do you believe that he knew right from wrong at that time?
A: My own personal opinion, yes, I think he knew right from wrong, because he was also very aware that she could harm him and knew that was wrong.
RT 165-166 (excerpt of Jaffe testimony on direct).
Q: But yet- - maybe I'm missing this, but you still respond to the question of, did he have the capacity to understand and consider the lawful rights of others, that he did not have this capacity - -
Q: - - as he was too distraught, too hysterical, too wrapped up in his own fears for his life.
A: Right, but that, to me, is a separate issue. It really was separate. I don't even know why the question was there, because that's a chronic thing that was going on with him. It wasn't an acute thing. The incident was an acute episode, but that ...