FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges on numerous grounds his 1993 conviction on two counts of first degree murder and one count of attempted murder, all accompanied by a true finding on a multiple murder special circumstance.*fn1 This action is proceeding on petitioner's first amended petition, filed May 5, 2004.*fn2
The prosecution evidence established that this is a case of murder among friends. The murder victims, Stacy Nick and Robert Schmeisser, were friends of [petitioner] and [petitioner] described Schmeisser as his best friend. There was also ample evidence that Nick and Schmeisser were dealers in cocaine, at least to some extent. [Petitioner] was a user of cocaine and there was evidence that Schmeisser, and possibly Nick, had refused to provide him with cocaine on past occasions.
The crimes occurred on August 24, 1990. At that time [petitioner] was living with his girlfriend, Joanne Pestana, on Orchard Woods Circle. Nick lived across the street with his girlfriend, Lisa Pepin. Schmeisser had been [petitioner]'s roommate on Orchard Woods Circle but had moved to an apartment complex on Valley Hi Drive where he lived with his girlfriend, Stephanie Becker.
[Petitioner]'s whereabouts in the early afternoon of August 24 are somewhat obscure. He was employed as an electrician on a job in Fairfield and there was evidence he left the job site between 12:30 and 1:30 p.m. that afternoon. At some time he went to Schmeisser's apartment and left electrical wire in the back of Schmeisser's truck. When Pestana arrived home from work at around 4:40 or 4:45 p.m., [petitioner] was home taking a shower. When [petitioner] had finished showering and dressing he said, "So what, I am a drug addict," and walked out the door. Pestana saw [petitioner] drive away in his Datsun 280-Z, and then immediately return and park across the street. [Petitioner] got out of his car and walked toward Nick's house. Michael Cole had been visiting Nick and was leaving just as [petitioner] arrived in his car. He observed [petitioner] rummaging under his car seat. As Cole left he saw [petitioner] walking toward Nick's house carrying some sort of flat box.
Pestana assumed that [petitioner] went to Nick's house to buy drugs. She decided that after [petitioner] left she would go over and confront Nick about providing drugs to [petitioner]. She went about her household chores until she saw [petitioner] drive away. Pestana then went to Nick's door, knocked, and entered. She found Nick's body on the couch. He had been fatally shot in the head. During the autopsy a .357 Magnum caliber slug was recovered from Nick's head. [Petitioner] owned a .357 Magnum handgun which he kept under the mattress on his bed. Deputies investigating the Nick shooting asked Pestana to retrieve [petitioner]'s pistol but it was missing and has never been located.
Schmeisser was murdered shortly after Nick was shot. It was established that the distance between Nick's home and Schmeisser's home was 1.8 miles and would take about five and one-half minutes to drive. There was an eyewitness to the Schmeisser murder. Michael Rhinehart, who lived in the same apartment complex as Schmeisser, testified that he got home from work around 4:15 or 4:20 p.m., and encountered Schmeisser working on his truck. Rhinehart visited with Schmeisser and they eventually went into Schmeisser's apartment.
A person that Rhinehart identified as [petitioner]*fn4 came to Schmeisser's door and was allowed to enter. Schmeisser made introductions and Rhinehart thought he called the visitor Mark, but said it could have been Art. Rhinehart observed that [petitioner] was carrying something, and that he went straight into the kitchen. Schmeisser asked whether [petitioner] had come to get the wire out of his truck and [petitioner] said that he had. [Petitioner] said there was something wrong with his .357 and Schmeisser began walking toward the kitchen. [Petitioner] pulled a pistol as though he were going to hand it to Schmeisser, but then held it up to his face and shot him.
After shooting Schmeisser, [petitioner] shot at Rhinehart. Fortunately, Rhinehart ducked to the floor and the shot missed. When he realized he was not hit, Rhinehart got up and saw [petitioner] standing over Schmeisser. As [petitioner] pointed the gun at him again, Rhinehart ran through the bedroom and locked himself in a bathroom. He heard a door open and close but feared a ploy to get him to expose himself so he stayed in the bathroom. After he heard the door open and close a second time, he grabbed a telephone from the bedroom and retreated to the bathroom once again. He called 911 and remained in the bathroom until the police arrived. Rhinehart's 911 call was logged at 5:41 p.m.
A bullet slug was recovered from Schmeisser's head during the autopsy and another was recovered from the wall of his apartment. The condition of the bullets precluded conclusive ballistic identification, but the slugs were consistent with the slugs recovered from Nick's body. All of the slugs were identified as being associated with Winchester silver-tipped, hollow-point, .357 Magnum caliber bullets.
[Petitioner] was arrested later that night after wrecking his car on Eschinger Road, a rural road a few miles south of the scene of the murders. A local resident reported that around 6 p.m. he encountered someone in a 280-Z on Eschinger Road near a gate that marked the entrance to a ranch owned by Fred Holthouse. The car was blocking the road and he had to wait for it to be moved. Later, about 11 p.m., [petitioner] approached the home of Howard Wackman, said he had been in a car wreck, and asked to use the telephone. He had blood on his face and a bump and red mark on his head. Deputies called to the scene discovered that [petitioner] had wrecked his car by running into fence posts on both sides of the road and eventually crashing through the fence and into a cow pasture on the Holthouse property. [Petitioner] was taken into custody at that time.
People v. Anderson, slip op. at 2-6. Petitioner's defense consisted principally of alibi evidence and evidence offered to suggest that one or more third parties were culpable for the murders. Petitioner called numerous defense witnesses and he testified in his own defense.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
II. Petitioner's Claims*fn5
Claim 1: Juror Misconduct -- Extrinsic Evidence
Petitioner's first claim is that several of his constitutional rights*fn6 were violated when a juror consulted an almanac to determine what the weather had been on the afternoon of August 24, 1990 and reported to the jury that the temperature had reached 78 degrees and the entire day had been overcast. This claim was raised in and rejected by the state courts on petitioner's direct appeal. Exs. C and D to Answer. The last reasoned rejection of this claim is the decision of the state court of appeal, which found that the juror had committed misconduct, but rejected the claim on the ground that there was not "a substantial likelihood that the vote of one or more jurors was influenced by the extraneous matter called to their attention." People v. Anderson, slip op. at 26-27.
The state court of appeal set forth the relevant facts and its disposition of this claim as follows:
The factual basis for this [claim] was established through the declaration of Juror Harney, who declared: "That during deliberations, we discussed Jerry Gould's testimony. During the discussion of Jerry Gould's testimony, one of the jurors, told other jurors, that he had looked up in the Almanac, the weather conditions for the day of the murders. He informed the other jurors that it was 78 degrees and overcast."
The trial court found the incident to constitute juror misconduct but denied the motion for a new trial on that ground. The court said that it could not find any significant likelihood that the misconduct would have affected the jurors' decisions. The court indicated an awareness that the standard is objective, that is, whether there is any likelihood that a juror would be affected, and said, "I can't see it here."
It is misconduct for a juror to receive information out of court. (People v. Holloway (1990) 50 Cal.3d 1098, 1108.) And it is settled that such misconduct raises a presumption of prejudice that requires a new trial unless rebutted by proof that no prejudice resulted. (Ibid.) The analysis of prejudice to be followed has been set forth by the California Supreme Court in People v. Marshall (1990) 50 Cal.3d 907, at pages 950 and 951, which we restate in clarified form [footnote omitted] here. A judgment adverse to a defendant in a criminal case must be reversed or vacated whenever the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury. The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror. Such "prejudice analysis" is different from, and indeed less tolerant than, "harmless-error analysis" for ordinary error at trial. When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant's detriment, we are compelled to conclude that the integrity of the trial was undermined; under such circumstances, we cannot conclude that the jury was impartial. By contrast, when the misconduct does not support such a finding, we must hold it nonprejudicial. (See also People v. Holloway, supra, 50 Cal.3d at pp. 1108-1109.)
In determining whether there is a substantial likelihood that the vote of one or more jurors was influenced by the extraneous matter called to their attention, we must consider the misconduct in light of the entire record. (People v. Zapien (1993) 4 Cal.4th 929, 994.) Upon consideration of the entire record in this case, we agree with the trial court that, as an objective matter, there is not a substantial likelihood here.
The information about weather conditions was mentioned with respect to the testimony of Jerrie Gould. Gould's testimony was quite brief, her direct testimony consuming less than four pages in the reporter's transcript, and was offered as some corroboration for the testimony of Betty Gipson, her mother-in-law. Gould testified that on the afternoon of August 24, 1990, she saw [petitioner] at Gipson's house. She was not sure of the exact time but said it was somewhere around 4 to 6 p.m. When pressed for a more specific time she said: "I don't know the time. I don't have a specific time.
I really don't." At the time of the murders, Gould was living in Milpitas and would visit Gipson on weekends. She would have left Milpitas around 12 or 1 p.m., and it would take her about two hours to get to Gipson's house. At the time she saw [petitioner] there she was washing her car. She added that she always waits until later in the day to wash her car so it is not so hot and water spots do not get on the car. She had no specific recollection of the day in question but was only going by her usual custom. Gould was not asked about the day in question until over two years later and her memory was extremely vague with respect to virtually all details.
Betty Gipson testified that [petitioner] was supposed to do some free lance electrical work for her on the day after the murders, a Saturday, and that he came to pick up an advance check on Friday. She said that as close as she could estimate, he arrived between 5 and 5:30 p.m., and stayed for 15 to 20 minutes. She did not look at a clock at the time, was not asked about that day until more than two years later, and was drawing upon her best recollection. When she was initially interviewed she said that her recollection was based on the fact that [petitioner] told her he would pick up the check after he got off work and that he was working out of town, about an hour away. At trial she conceded that had been a factor in her original thinking, but maintained that regardless of that factor her recollection of [petitioner]'s arrival remained at between 5:00 and 5:30.*fn7 When asked about Gould, Gipson said that Gould had arrived in the afternoon and was washing her car while [petitioner] was there. At trial Gipson agreed that it was Gould's habit to wash her car in the late afternoon. However, in her prior interviews Gipson had not mentioned that matter and testified that she did not regard it as important.
In light of the entire record, including [petitioner]'s testimony, Gipson's testimony was not an alibi with respect to the Nick murder. We have previously noted the testimony of [petitioner]'s live-in girlfriend, Joanne Pestana. She testified that she got off work at 4, picked up her child, and arrived home between 4:40 and 4:45 on the afternoon of the murder. [Petitioner] was home and was showering when she arrived home. When [petitioner] finished showering and dressing he left in his car and then immediately returned and stopped at Nick's house. Pestana waited for [petitioner] to leave so she could confront Nick, and in the meantime returned a telephone call to her insurance agent. When [petitioner] left, Pestana went over to Nick's house and found him fatally wounded. Pestana's employer confirmed that she got off work at 4 on the day of the murders, her telephone records confirmed a call to her insurance agent at 5:01 p.m., and her call to police after finding Nick was made at 5:21.
In his testimony [petitioner] admitted that he was in the shower when Pestana arrived home and that he left when he finished showering. He stopped to check his mailbox across the street, and may have made a U-turn in order to do so. He said he may have approached and knocked on Nick's door, but he maintained that he did not see Nick at that time. In light of this evidence, Gipson's testimony was not inconsistent with [petitioner]'s opportunity to have committed the Nick murder. However, [petitioner] claimed that after driving away from Nick's house he went to Gipson's house to pick up a check, and thus to have lacked an opportunity to have committed the Schmeisser murder. In this respect [petitioner]'s testimony was impeached by evidence of his interview with detectives after the murders in which he said that at the time of the murders he was at a Lumberjack store, the bank, and cruising the interstate, but made no mention of going to Gipson's house.
The whole record gives rise to an inference that the same culprit committed both murders. [Petitioner]'s own testimony foreclosed Gipson's testimony as an alibi for the Nick murder and although Pestana did not actually witness the shooting, her testimony and other factors present a strong circumstantial case of [petitioner]'s commission of that crime. [Petitioner] was identified as the perpetrator by the eyewitness to the Schmeisser murder, which was committed only a short time after the Nick murder.
On this record the primary value of the Gipson evidence was to provide an alibi for the Schmeisser murder and, in view of the likelihood that the murders were committed by the same person, to support [petitioner]'s claim that he did not actually see Nick at the time Pestana reported he had gone to his house. In view of this record we agree with the trial court that the weather information was utterly tangential and collateral. When asked, Gipson agreed that Gould would normally wash her car in the late afternoon, but Gipson did not purport to rely upon that fact or upon a recollection of the weather for her estimate of the time of [petitioner]'s visit. Gould's testimony had value only to corroborate Gipson's testimony that [petitioner] visited on the afternoon of the murders. Her testimony was too vague and uncertain, and her estimate of the time was too broad and indefinite to provide alibi evidence in itself. Moreover, Gould did not purport to remember or rely upon the actual weather on the day of the murders in forming her estimate of the time of [petitioner]'s visit. And, as the trial court noted, information that the day was 78 degrees and overcast would not specifically contradict either Gould or Gipson's testimony.
People v. Anderson, slip op. at 25-31.
Several principles of federal law govern this claim. It is well-established that
[j]ury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir.1988). Not every constitutional error, however, is grounds for reversal. On collateral review, we must determine whether the constitutional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). Errors that do not have a "substantial and injurious effect" on the trial's outcome are deemed harmless. Bonin v. Calderon, 59 F.3d 815, 824 (9th Cir.1995).
Eslaminia v. White, 136 F.3d 1234, 1237 (9th Cir. 1998). Several factors are relevant to the question of whether receipt of extraneous information had a "substantial and injurious effect" on the jury's verdict:
"(1) whether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached and, if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict."
Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000) (quoting Dickson, 849 F.2d at 406 (in turn quoting Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987). In addition, there are "other factors that 'might nonetheless suggest that the potential prejudice of the extrinsic information was diminished in a particular case.'" Sassounian, at 1109 (quoting Jeffries v. Blodgett, 114 F.3d 1484, 1491 (9th Cir. 1997). "These include:
 whether the prejudicial statement was ambiguously phrased;  whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial;  whether a curative instruction was given or some other step taken to ameliorate the prejudice;  the trial context; and  whether the statement was insufficiently prejudicial given the issues and evidence in the case."
Sassounian, at 1109 (quoting Jeffries at 1491-92); see also Mancuso v. Olivarez, 292 F.3d 939, 952 (9th Cir. 2002) (discussing foregoing factors as incorporated in the fifth Dickson factor requiring consideration of "any other matters which bear on the issue of the reasonable possibility of whether extrinsic material affected the verdict.") In reviewing this claim, the court may properly consider "juror testimony about the consideration of extrinsic evidence" but "juror testimony about the subjective effective of evidence on the particular juror" is not admissible. Sassounian, at 1108.
The record shows that at the start of the afternoon session on December 29, 1992, during Betty Gipson's testimony, Juror Garcia raised a question with the court that led to the following colloquy:
THE COURT: . . . I was told that one of the jurors asked the court attendant a question. I think it might have been Mr. Garcia. I think, as I understand the question, "Can the jurors ask questions of witnesses?"; is that your question?
JUROR GARCIA: Not necessarily.
THE COURT: All right. Go ahead.
JUROR GARCIA: There is a lot of testimony dealing with the sunset. I was wondering if there was an Almanac to find out actually when the sun did set on that day.
THE COURT: Okay. Questions of that kind are asked from time to time by jurors, and I understand why you are asking the question.
The response is that in our system of justice the jurors have to be passive finders of the fact. You just have to take the evidence as it's presented by the attorneys, and take into account the burden of proof or burdens of proof and decide, as best you can, the evidence as it's presented to you.
So the answer is, I can't -- I can't answer it. Undoubtedly there is an Almanac. There is nothing in evidence about it at the present time, maybe something can be proven about when the sun set or whatever.
RT at 3314-15. Near the conclusion of the presentation of evidence, the parties stipulated that "according to the United States Naval Observatory, sunset and sunrise in Sacramento on August 24, 1990 would have been . . . 6:28 a.m., and sunset would be 7:48 p.m." RT at 4223. In addition, Detective Edwards testified that the weather on August 24 and 25 was sunny. RT at 2932. At the end of trial, the jury was instructed that it "must determine the facts of the case from the evidence received in the trial and not from any other source" and that "[a] 'fact' is something proved directly or circumstantially by the evidence or by stipulation." CT at 507. The jury was also instructed that it must decide all questions of fact in the case from the evidence received in the trial and not from any other source.
You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. For example, you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information.
After trial, petitioner moved for a new trial based on the ground that, inter alia, during deliberations while the jurors were discussing Jerrie Gould's testimony one of the jurors advised the other jurors that he had consulted an almanac and learned that the weather was 78 degrees and overcast on August 24, 1990. CT at 622, 635. This part of petitioner's motion was supported by a declaration by juror Betty Harney. Id. at 622, 635. Petitioner has presented a second declaration by Juror Harney, which includes two paragraphs that relate to this claim. See Declaration of Betty Harney, filed Oct. 2, 2002, at ¶¶ 9-10 (hereafter Second Harney Declaration). Those two paragraphs are as follows:
9. During deliberations I and other members of the jury were concerned with the accuracy of Ms. Jerry Gould's testimony, and jurors discussed how important it was for us to decide if she was correct in her time estimate of when she saw the defendant at her mother-in-law's house.
10. On perhaps the second day of deliberations, a male juror advised all the other jurors that he had looked up the weather for the day in question in the Almanac, and that the it [sic] was 78 degrees and overcast that day. We debated how that weather condition affected the validity of Gould's time estimate of when she saw Anderson, since it was based on what time of day she usually washes her car to avoid spots from the sun. I understood that I was not allowed to consider this weather information, but it did raised [sic] a little doubt in my mind that Gould could be wrong, since she could have washed her car any time on an overcast day. The question of reconciling the testimonies of Ms. Gould and Mrs. Gipson was not a minor issue; it was a difficult point for me, and was debated with strong views on all sides by the jurors.
Second Harney Declaration at ¶¶ 9-10. Most of the statements in these paragraphs cannot be considered by this court because they "describe the deliberative process or subjective effects of extraneous information." Sassounian, at 1108 (citing United States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981)); see Fed. R. Evid. 606(b). However, Juror Harney's statements that "[o]n perhaps the second day of deliberations, a male juror advised all the other jurors that he had looked up the weather for the day in question in the Almanac, and that the it [sic] was 78 degrees and overcast that day," and that the jury "debated how that weather condition affected the validity of Gould's time estimate of when she saw Anderson, since it was based on what time of day she usually washes her car to avoid spots from the sun" are admissible and properly considered.*fn8
There is no dispute that it was misconduct for the juror to look up weather information in an almanac and to bring that information to the attention of other jurors. The issue is whether that misconduct was prejudicial and, in turn, whether the state court's decision that it was not is contrary to or an unreasonable application of relevant principles of clearly established federal law, or based on an unreasonable determination of the facts.
The juror provided two separate pieces of information about the weather on August 24, 1990, as gleaned from an almanac: that the day was overcast, and that it was 78 degrees. Juror Harney's declaration suggests that the information was actually received by the entire jury, and that it was received on the second day of deliberations. The Clerk's Transcript shows that the jury deliberated for just over seven court days, requested several readbacks of testimony, none of which included Jerrie Gould or Betty Gipson's testimony, and asked the court to "tell us more about reasonable doubt. What does it really mean?" CT at 563-583. The weather information was provided near the start of deliberations, which continued for at least five days thereafter before a verdict was reached. Cf. Sassounian, at 1110 (timing of discussion of improper information deemed "critical" where jury discussed improper information after fifteen days of deliberation and after asking judge what to do if it could not agree, and reached verdict one hour later). While Juror Harney's declaration suggests that the jury discussed the information, it sheds no light on how much time was spent on those discussions. Thus, the court examines the factors considered to determine whether there were "any other matters which may bear on whether the introduction of extrinsic material substantially and injuriously affected the verdict." Mancuso v. Olivarez, 292 F.3d 939, 952 (9th Cir. 2002).
The information that the day was overcast contradicted Detective Edwards' testimony that the day was sunny and was not cumulative of any evidence offered at trial. Both the trial judge's response to Juror Garcia's question and the specific jury instruction given as part of the overall charge to the jury informed the jury that it could not consider such extraneous information, but no curative instruction was given after the almanac information was provided. The state court's decision rejecting this claim was based, essentially, on its conclusion that the evidence was "'insufficiently prejudicial in light of all the other issues and evidence in the case,'" Sassounian, at 1109 (quoting Jeffries, at 1492), the final inquiry in the determination of matters that bear on prejudice. The state court's conclusions in this regard are not based on an unreasonable determination of the facts.
In order to obtain relief in these federal habeas corpus proceedings, the state court's decision "must be more than incorrect or erroneous. . . . [It's] application of clearly established law must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. at 75. After review of the record and the factors relevant to a determination of whether the juror misconduct was prejudicial, this court cannot find that the state court's determination that the misconduct was not prejudicial is unreasonable. For that reason, petitioner's first claim for relief must be denied.
Claim 2: Erroneous Jury Instruction
Petitioner's second claim for relief is that his right to due process was violated by the instruction provided to the jury on murder by lying in wait. The trial court instructed the jury with a slightly amended version of CALJIC 8.25, as follows:
Murder which is immediately preceded by lying in wait is murder of the first degree. "Lying in wait" is defined as waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise [even though the victim is aware of the murderer's presence]. The lying in wait need not continue for any particular period of time provided its duration is such as to show a state of mind equivalent to premeditation and deliberation.
RT at 4432-4433.*fn9 At all times relevant to this action, California law included in the definition of first degree murder any "murder which is perpetrated by means of . . . lying in wait." Cal. Penal Code § 189. Petitioner contends that the phrase "by means of" denotes a causal connection between lying in wait and murder, that this nexus is an essential element of lying in wait murder, and that omission of this language from CALJIC 8.25 and, instead, use of the phrase "immediately preceded by lying in wait," relieved the prosecution of its obligation to prove this essential element in violation of petitioner's rights under the federal due process clause. Amended Petition at 26; Traverse to Amended Petition filed Nov. 4, 2004 (Traverse) at 19-20.
This claim was raised in and rejected by the state courts on petitioner's direct appeal. Exs. C and D to Answer. The last reasoned rejection of this claim is the decision of the state court of appeal, which rejected the claim on the ground that the challenged jury instruction had been approved by the California Supreme Court and the appellate court "was not at liberty to reject the holding of our Supreme Court." People v. Anderson, slip op. at 63.
On federal habeas corpus review, this court is bound by the decision of the state courts on questions of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The definition of the elements of a state criminal offense is a question of state law. See Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979); see also Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998).
Under California law, first degree murder is the unlawful killing of a human being in a willful, deliberate, and premeditated manner. See People v. Anderson, 70 Cal.2d 15, 24 (1968). California Penal Code § 189 provides in relevant part that "[a]ll murder which is perpetrated by means of ... poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, ... is murder of the first degree...."*fn10 Under this section of the California Penal Code, lying in wait is "a substitute for premeditation and deliberation when determining whether a murder is a first-degree murder. That is, . . . , if a person lies in wait to kill another, California treats him as having the equivalent of premeditation and deliberation." Morales v. Woodford, 388 F.3d 1159, 1177 (9th Cir. 2004).
[T]he theory of first degree murder by means of lying in wait does not require the intent to murder the victim, but rather, "the intent to watch and wait for the purpose of gaining advantage and taking the victim unawares in order to facilitate the act which constitutes murder." People v. Laws, 12 Cal.App.4th 786, 15 Cal.Rptr.2d 668, 674 (1993). Moreover, the lying in wait need not continue for any particular period of time, provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. People v. Ruiz, 44 Cal.3d 589, 244 Cal.Rptr. 200, 212, 749 P.2d 854, 867, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 155 (1988); Laws, 12 Cal.App.4th at 795, 15 Cal.Rptr.2d at 675.
Calderon v. Prunty, 59 F.3d 1005, 1008-09 (9th Cir. 1995). In other words, under California law, evidence of lying in wait is one way that the mens rea requirement of first degree murder can be proved. Given the foregoing principles of state law, the use of CALJIC 8.25 at petitioner's trial did not unconstitutionally shift the prosecution's burden of proof on any element of the charges again petitioner. The state courts' rejection of this claim was neither contrary to, nor an unreasonable application of, controlling principles of federal law. This claim should be denied.
Claim 3: Juror Misconduct
By his third claim for relief, petitioner contends that his constitutional rights to due process, a fair trial, and an impartial jury were violated by two separate instances of juror misconduct. In the first part of claim 3, petitioner contends that his constitutional rights were violated by a juror who formed and expressed an opinion concerning petitioner's guilt early in the trial proceedings. In the second part of claim 3, petitioner contends that his constitutional rights were violated when jurors concealed during voir dire ...