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Wirth v. Kramer

December 16, 2009


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner, James A. Wirth, a state prisoner proceeding through counsel, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Wirth is currently in Custody of the California Department of Corrections, incarcerated at the Folsom State Prison in Folsom, California. Respondent has filed his answer. Wirth has replied.


The following statement of facts is excerpted from the Court of Appeal for the State of California's decision in this case:

[James Wirth] and Jill Wirth were married in 1987 and lived on Snowbird Way. [Wirth] and Jill had a physical fight, after which Jill took guns and ammunition away from [Wirth]. In December 2001 Jill moved to Folsom and filed for divorce. [Wirth] changed the locks on the house.

In January 2002 [Wirth] took an overdose of pills and was involuntarily hospitalized.*fn1 [Wirth] called Jill and tried to leave the hospital. After the police pulled him out of Jill's car and were attempting to handcuff him, [Wirth] warned them there would be "a lot more unhappy families around." [Wirth] continued to taunt the police, offering to take them all on.

On January 25, 2002, Jill discovered [Wirth] outside her apartment. Later that evening, in a series of telephone calls, [Wirth] told Jill she would find out something the next day, something was going to happen, and that he was taking the dogs. She also heard what sounded like a gunshot. Jill's car was found burning at 3:20 a.m.

Jill told the police dispatcher [Wirth] had been calling, saying he wanted to kill himself and would "torch" her residence.

About 5:00 a.m. on January 26, 2002, [Wirth] called his son's former girlfriend. He told her he [had] been drinking and taking pills. He said he moved Jill's car and burned it so she would be left with nothing. [Wirth] said he had bolted the doors to his house and had five gallons of gasoline in the house.

Later that morning, [Wirth] told Jill he had doused things with gasoline and would take the dogs with him. He was waiting for someone to show up before lighting the match.

[Wirth's] friend Refugio Sanchez came to [Wirth's] home. [Wirth] told Sanchez he was going to burn down the house. While Sanchez was there, [Wirth] told Sanchez he was going to burn down the house. While Sanchez was there, [Wirth] told Jill in a telephone call that gasoline had been spilled. When the police arrived, Sanchez saw [Wirth] talk to them; [Wirth] did not seem surprised to see them. [Wirth] had Sanchez listen to his wedding vows on tape. [Wirth] then asked Sanchez to take the dogs.

[Wirth's]stepson called the police after discussing it with Jill.

Sacramento County Sheriff's Deputies Glen Petree and Robert Pomerson went to the house and rang the doorbell and knocked on the door after seeing Sanchez and [Wirth] inside. [Wirth] opened the miniblinds on the window next to the door and said, "What the fuck do you want[?]" Petree asked [Wirth] to open the door. When [Wirth] did not respond, Petree called for backup. Meanwhile, the deputies heard a power tool. Sanchez stepped outside and told the deputies [Wirth] had screwed shut all the doors. [Wirth] had explained to Sanchez he would burn the house while he lay in the bedroom. Sanchez said [Wirth] showed him how he had arranged things in the master bedroom. There were gas cans in another bedroom, and knee-deep clothes in the hall where [Wirth] intended to start the fire.

Deputy Rick Kemp arrived with a police dog, and a police helicopter circled overhead. Deputies Brendon Hom, Wayne Stephens, Kemp, Petree, and Pomerson prepared to force entry into the house, and two of them kicked open the door leading into the garage. They then kicked open the door between the garage and family room, calling [Wirth's] name and yelling that they were from the sheriff's department. The deputies heard no sound other than their own voices and the barking dog.

The deputies saw gas cans in the family room and "debris" piled in the hallway. As the deputies entered the hall, a ball of flame came out of the bedroom and into the hallway. Deputies found [Wirth] sitting in the shower with the water running. [Wirth] told Deputy Hom that if "you guys hadn't showed up, none of this would have happened. I was just gonna leave with my dogs."

[Wirth] told Sacramento Metropolitan Fire District Investigator Thomas McKinnon he had seen a police officer at the door, but he thought the dog barking was his dog. He did not hear the deputies knocking on the doors. [Wirth] lit the fire in his bedroom. He intended to burn up all of his wife's belongings. [Wirth] was "pretty sure" the deputies were coming in. [Wirth] admitted torching the car.*fn2


A jury convicted Wirth of five counts of attempted murder of a peace officer (Cal. Penal Code §§ 664, 187, 664(e), 12022(b)(1)) (counts 1-5); five counts of assaulting a peace officer with a deadly weapon and by force likely to produce great bodily injury (Cal. Penal Code § 245(c)) (counts 6-10); one count of arson of an inhabited structure with the use of an accelerant (Cal. Penal Code §§ 451(b), 451.1(a)(5)) (count 11); two counts of arson of property (Cal. Penal Code §§ 451(d)) (counts 12-13); and one count of stalking (Cal. Penal Code §§ 646.9) (count 14). The jury found that the attempted murders were not willful, deliberate and premeditated.*fn3 Wirth has never contested that this jury finding was inconsistent with the specific intent finding. The trial court sentenced Wirth to two consecutive life terms.*fn4

Wirth filed a timely appeal with the Court of Appeal for the State of California, Third District. Wirth argued that the trial court's failure to instruct the jury, sua sponte, that he must actually have known all of the victims in a "particular zone of risk" permitted the jury to convict him under a theory of "transferred intent" or "implied malice." Wirth contended that four of his five life sentences should be reversed on these grounds.*fn5 The Court of Appeal affirmed the judgment in a reasoned decision.*fn6

Wirth filed a petition for review in the California Supreme Court, which was summarily denied ...

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