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Lewis v. Runnels

December 21, 2009

CARL MONTIGUE LEWIS, PETITIONER,
v.
DAVID L. RUNNELS, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding through appointed counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1999 judgment of conviction entered against him in Sacramento County Superior Court on charges of first degree felony murder and first degree burglary. He seeks relief on the grounds that, allegedly: (1) his right to due process was violated by jury instruction error; (2) the evidence was insufficient to support the burglary felony-murder special circumstance; and (3) his constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude two black women from the jury. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background*fn1

During the summer of 1998, Adams, 18 years old at the time, lived in the Pheasant Pointe Apartments in Sacramento. Lewis, who was 27 years old, frequently visited the same apartments, where he met and became friends with Adams. They also became acquainted with Jovan Hall.

Robbery of Steve Baker On July 28, 1998, at about 1:00 a.m., Adams or Lewis kicked in the door of an apartment in the Stonecreek Apartments, across the street from the Pheasant Pointe Apartments. One of the occupants of the apartment, Steve Baker, came out of his bedroom to investigate the noise and was confronted by Adams, who said: "Where's the money?" Adams threatened to kill Baker if Baker called 911. Baker said he had no money, so Adams slapped him on the chest several times and again demanded to know where was the money. Lewis entered the apartment and grabbed a VCR, which Adams pointed out to him. Adams took a watch, cellular phone, wallet, and keys that were on top of a piano, and both Adams and Lewis left the apartment. Adams returned to the apartment the next day and tried to gain access using the keys he had taken but was scared off by Alan Sheridan, another resident of the apartment. Adams and Lewis later bragged and laughed about the robbery.

Murder of Jean Suter At about 9:20 p.m. on August 6, 1998, the power went off in the Pheasant Pointe Apartments and the Stonecreek Apartments across the street. Adams, Lewis, and Hall were together in the Pheasant Pointe Apartments. They huddled together and whispered to each other, then borrowed a flashlight and went across the street to the Stonecreek Apartments.

Dennis Sawyer, a security guard on duty in the Stonecreek Apartments, encountered 80-year-old Jean Suter, a Stonecreek tenant, on a walkway. She did not have her purse. They briefly discussed the power outage, after which Suter headed off in the direction of her apartment. After Suter left, Sawyer saw Adams approach carrying what was later identified as Suter's purse. About five minutes later, Lewis stood on a garbage can and jumped over a fence surrounding the pool area. On the ground in the pool area, he left the flashlight the men had borrowed. After jumping over the fence, he shouted: "Damn you, Jovan." He encountered Norma Stang, another Stonecreek tenant, and said, "Out of my way, bitch." He bumped into her as he headed out of the apartment complex.

Sawyer, having heard the commotion caused by Lewis's use of the garbage can, went to the pool area and spoke to Stang. She pointed out the flashlight. On his way around to get inside the pool area to retrieve the flashlight, Sawyer found Suter lying on the ground directly in front of her apartment. She was trying to get up but could not. Asked what had happened, she replied that she did not know what had happened or where she was. Sawyer told her she was in front of her own apartment. The door was wide open. He helped her to her feet and into the apartment. By the light of the flashlight he was carrying, Sawyer did not notice any injuries on Suter. To him, she did not seem to be in pain or to have difficulty breathing.

Adams and Lewis returned to the Pheasant Point Apartments with Suter's purse, which contained her cellular phone and credit cards. Calls were made on Suter's cellular phone that evening and the next day to Adams's girlfriend, Adams's uncle, Hall's cousin, and a friend of both Hall and Adams.

Adams and Lewis went with a friend to get marijuana. While in the car, Lewis chided Adams, saying: "I should kick your ass for leaving me." And later: "I had to hit this mother fucker upside the head." Adams grinned, but seemed to be afraid of Lewis.

The next day, on August 7, 1998, Suter was found in her bed in a coma and near death. She had injuries from four separate blunt force blows. Two blows to the head causing bruising, swelling, and a subdural hematoma. Two blows to the body caused bruising, swelling, a broken clavicle, a broken rib, and a punctured lung. These forceful blows could have been inflicted by the flashlight Adams and Lewis took to the apartments. An investigation revealed vomit on the floor in front of the chair where Sawyer left Suter, in the bathroom sink, and in the toilet bowl. Suter was taken to the hospital and put on life support.

The screen from the window to Suter's bedroom was lying on the ground and there were shoe prints on the window sill that were consistent with some of the shoes later seized from Adams and Lewis. Suter's purse and a jewelry box from her bedroom were missing. Several drawers of the dresser and filing cabinet were open.

Also on August 7, 1998, Adams went to Arden Fair Mall with Suter's credit cards and cellular phone. He and a friend used the cards to make purchases. When Lewis heard about Suter's death from a television report, he caught a bus to Colorado, where he had a job offer.

When it became clear, on August 8, 1998, that further treatment would be futile, Suter was taken off life support, and she died. An expert opined that Suter could have sustained her injuries before Sawyer found her outside her apartment. The brain injury would have caused her slowly to deteriorate but was still consistent with moments of lucidity during which she encountered Sawyer, went into the bathroom, and got into bed.

Adams was arrested on August 8, 1998. He admitted going to the Stonecreek Apartments during the power outage to commit a burglary. He stated that he entered Suter's apartment through the front door and took her purse. He saw Suter as he was leaving the area. Lewis was arrested in Colorado on August 21, 1998. He also admitted involvement in the burglary during the power outage. He entered the apartment through the window, stole the jewelry box, and exited through the front door. He claimed he bumped into an elderly woman and she spun around but did not fall down. He jumped over the pool fence and lost the flashlight he was carrying.

II. Procedural Background

Adams and Lewis were charged and convicted by jury of robbery of Steve Baker, residential burglary, and first degree murder of Jean Suter. The jury also found true the special circumstance that the murder was committed during the commission of burglary.

Hall was also charged with residential burglary and first degree murder but was acquitted of the charges. Adams and Lewis were each sentenced to life without possibility of parole for first degree murder with the sentence for burglary stayed, plus four years for robbery.

Petitioner filed a timely appeal of his conviction in the California Court of Appeal. Answer, Ex. A. The Court of Appeal affirmed petitioner's conviction in its entirety. Answer, Ex. D. Petitioner subsequently filed a petition for review in the California Supreme Court. Answer, Ex. E. That petition was summarily denied by order dated March 20, 2002. Answer, Ex. F.

III. Analysis

A. 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.

28 U.S.C. § 2254(d).

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 a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting 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, 75 (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).

B. Petitioner's Claims

1. Jury Instruction Error

Petitioner raises a claim of jury instruction error. He claims that the trial court's instruction to the jury regarding the "escape rule" for burglary rather than an instruction on "one continuous transaction" violated his due process rights.

a. Legal Standards

A challenge to jury instructions does not generally state a federal constitutional claim. Engle v. Isaac, 456 U.S. 107, 119 (1982); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981), abrogated on other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)); See also Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) The analysis for determining whether a trial is "so infected with unfairness" as to rise to the level of a due process violation is similar to the analysis used in determining, under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), whether an error had "a substantial and injurious effect" on the outcome. See Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007) (standard applied to habeas petition presenting a jury instruction challenge).

b. Jury Instruction on Burglary

Petitioner claims that his right to due process was violated when "the trial court erroneously instructed that a burglary did not end until all perpetrators reached a place of temporary safety, in violation of the felony-murder 'one continuous transaction' test, and failed to instruct on the 'one continuous transaction' test that governs killing in the commission of a felony." Pet. at 27. As is apparent from the state court's discussion of this issue, petitioner's claim presents essentially a question of state law. See id. at 27-33.

The California Court of Appeal explained the background to this claim and its disposition as follows:

The felony-murder rule was enacted to protect the public, not to benefit criminals. (People v. Chavez (1951) 37 Cal.2d 656, 669-670.) For the purpose of the felony-murder rule, a burglary committed by more than one person continues during the burglars' escape until all burglars reach a place of temporary safety. (People v. Bodely (1995) 32 Cal.App.4th 311, 314 (hereafter Bodely); People v. Fuller (1978) 86 Cal.App.3d 618 (hereafter Fuller), cited in People v. Cooper (1991) 53 Cal.3d 1158, 1169.) This rule concerning the duration of a burglary is referred to as the "escape rule." "'[T]he escape rule serves the legitimate public policy considerations of deterrence and culpability' by extending felony-murder liability beyond the technical completion of the crime. [Citation.]" (Bodely, supra, at pp. 313-314.)

Consistent with Bodely and Fuller, the jury was instructed as follows: "For the purpose of determining whether an unlawful killing has occurred during the commission or attempted commission of burglary, the commission of the crime of burglary is not confined to a fixed place or a limited period of time. [¶] A burglary is in progress after the original entry while the perpetrator is fleeing in an attempt to escape. [¶] A burglary is complete when all perpetrators have reached a place of temporary safety. [¶] If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of burglary, all persons who either directly or indirectly or actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime, and with intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental."

The defendants assert Bodely and Fuller were decided incorrectly because they did not properly take into account whether the burglary and the killing were part of one continuous transaction. Therefore, they urge, the trial court erred in instructing pursuant to Bodely and Fuller. We disagree. "Under the felony-murder rule, 'the evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim's death....' [Citation.] First degree felony murder does not require proof of a strict causal relation between the felony and the homicide, and the homicide is committed in the perpetration of the felony if the killing and the felony are parts of one continuous transaction." (People v. Ainsworth (1988) 45 Cal.3d 984, 1016.) The Bodely court relied on the "one continuous transaction" test when it approved the "escape rule." It noted: "Since the application of the escape rule to burglary is consistent with the 'one continuous transaction' rest, we conclude that felony-murder liability continues during the escape of a burglar from the scene of the burglary until the burglar reaches a place of temporary safety."

(32 Cal.App.4th at p. 314.)

In People v. Eaker (1980) 100 Cal.App.3d 1007, the court approved an instruction imposing felony-murder liability if the burglary and homicide were part of one continuous transaction. The court held: "If the homicide was committed during an escape from the burglary, it was a part of one continuous transaction; therefore, the court properly instructed the jury. (Id. at pp. 1011-1012.)

The defendants assert the holding in Eaker required a "one continuous transaction" instruction in this case, instead of an "escape rule" instruction. "Otherwise," the defendants contend, "a burglar who has departed the burglarized structure and is in the process of escape could be held liable for a separate and independent killing committed by a co-burglar that was entirely unrelated to the burglary and/or be held liable for a killing that occurred during a new burglary that was not the natural consequence of the first burglary." (Underlining in original.) This reasoning fails.

As held by the Supreme Court in Ainsworth, "felony murder does not require proof of a strict causal relation between the felony and the homicide...." (45 Cal.3d at p. 1016.) The defendants' reasoning, however, seeks to impose a causal relation test. The felony-murder rule imposes liability on escaping burglars as a matter of public policy. (People v. Bodely, supra, at pp. 313-314.) Furthermore, the defendants' apparent concern that they might be held liable for an unrelated murder is unfounded because the jury was instructed that, to find the defendants guilty of felony murder, it had to find the killing occurred "during the commission or attempted commission of burglary...." If the defendants wanted further clarification in this regard, they had the responsibility to request it. (People v. Alvarez (1996) 14 Cal.4th 155, 222-223.) The trial court did not err in instructing the jury using the escape rule.

Opinion at 7-10.

This state law question of whether the trial court violated California caselaw when it gave an "escape rule" jury instruction, as opposed to an instruction on "one continuous transaction," is not cognizable in this federal habeas corpus proceeding. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) ("the issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point"). The only question before this court is whether the state court's decision rejecting petitioner's jury instruction claim is contrary to or an unreasonable application of the federal due process principles set forth above. 28 U.S.C. § 2254(d). In order to answer this question, the court must determine whether the trial court's failure to give a jury instruction on "one continuous transaction" rendered petitioner's trial fundamentally unfair.

Under the circumstances of this case, petitioner's trial was not rendered fundamentally unfair as a result of the jury being instructed on the "escape rule" and not on the "continuous transaction" rule. All of the evidence in this case reflected that the murder of Suter was committed in connection with the burglary of her home or, put another way, was part of the "continuous transaction" constituting that burglary. Specifically, the evidence indicated that Suter's killing was committed by petitioner or his co-defendant during the escape from Suter's home after the burglary. There is no evidence that the homicide was unrelated to the burglary of Suter's residence or that the murder occurred during a "new" burglary, as petitioner argues. For these reasons, petitioner did not suffer prejudice in this case due to the trial court's failure to specifically inform the jury that petitioner could not be found guilty of felony-murder if the killing was separate from the burglary. Further, as noted by the California Court of Appeal, petitioner's jury was instructed that, in order to find petitioner guilty of felony-murder, they had to find that the killing occurred during the commission or attempted commission of the burglary of Suter's home. This instruction would preclude the jury from finding petitioner guilty of felony-murder based on a killing unrelated to the burglary.

Petitioner has not cited any United States Supreme Court case holding that, for purposes of due process and the felony-murder rule, a jury instruction must inform the jury that a homicide is committed in the perpetration of a felony only if the killing and the felony are part of one continuous transaction. See Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004) (state court's decision not contrary to federal law where no United States Supreme Court precedent exists). Accordingly, petitioner has failed to demonstrate that the decision of the California Court of Appeal is contrary to or an unreasonable application of United States Supreme Court authority.

For all of these reasons, petitioner is not entitled to relief on this claim.

c. Special Circumstance Instructions

Petitioner's next claim is that the jury instruction on the burglary special circumstance was contrary to federal law and rendered his trial fundamentally unfair. He also claims that the prejudicial effect of the instruction was exacerbated by the prosecutor's closing argument. Pet. at 33. The California Court of Appeal rejected this argument with the following reasoning:

In Tison v. Arizona (1987) 481 U.S. 137 [95 L.Ed.2d 127], the United States Supreme Court concluded the Eighth Amendment does not prohibit the death penalty for a felony murderer who was not the actual killer and who did not intend to kill, but, rather, was a major participant in the underlying felony who harbored a mental state of "'reckless indifference to... human life.'" (481 U.S. at pp. 152, 158.) Tison defined "major participant" as a defendant who is actively involved in every element of the underlying felony and is physically present during the entire sequence of criminal activity culminating in the murder. (Id. at p. 158.) Tison defined "reckless indifference to human life" as a subjective appreciation, or knowledge, by the defendant that his acts are likely to result in the taking of innocent life. (Id. at pp. 152, 157-158.)

After Tison, the Legislature amended Penal Code section 190.2 to add the language from Tison concerning special circumstance liability for a co-perpetrator who was not the actual killer. The California Supreme Court, in Tapia v. Superior Court (1991) 53 Cal.3d 282, noted that section 190.1, subdivision (d), "brings state law into conformity with Tison...." (53 Cal.3d at p. 298, fn. 16.) Consistent with Penal Code section 190.2, the trial court instructed the jury using CALJIC No. 8.80.1, as follows:

"The People have the burden of proving the truth of the special circumstance. [¶] If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true. [¶] If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the Defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that Defendant unless you are satisfied beyond a reasonable doubt that such Defendant, with reckless indifference to human life, and as a major participant aided and abetted in the commission of the crime of burglary which resulted in the death of a human being namely, Jean Suter. [¶] A Defendant acts with reckless indifference to human life when that Defendant knows or is aware that his acts involve a grave risk of death to an innocent human being."

On appeal, the defendants argue that the instruction was insufficient because, even though it informed the jury that a co-perpetrator who was not the actual killer could not be held responsible for felony murder unless he acted with reckless indifference to human life, the instruction did not prohibit the jury from finding that a defendant acted with reckless indifference to human life based solely on the fact that the defendant participated in the burglary, the underlying felony. They argue the instruction did not prevent "the jury from making its 'reckless indifference' finding in the abstract based on felony murder simpliciter,*fn2 i.e., defendant's knowing participation in a felony that resulted in death and constituted first degree felony-murder." [Underlining in original] They contend that a trial court must instruct "that participation in an underlying felony that results in a felony-murder death is insufficient for a 'reckless indifference' finding and that the actual circumstances of the criminal activity must, as a natural consequence, carry a grave risk of death." [Underlining in original]. We conclude that the instruction properly conveyed the requirement in Tison and Penal Code section 190.2, subdivision (d) that the non-killer acted with reckless indifference to human life. Contrary to the defendants' argument, the instruction, as given, required the jury to determine a non-killer's mental state -- that is, whether he acted with reckless indifference to human life. In so instructing, the court did not allow the jury, either expressly or by implication, to forego its duty of determining the non-killer's mental state by presuming the non-killer harbored the required mental state simply because he engaged in burglary. The jury was instructed to determine whether the non-killer acted with reckless indifference to human life, and we presume the jury followed this instruction. (See People v. Harris (1994) 9 Cal.4th 407, 425-426.)

The defendants further argue that the prosecutor led the jury to believe it could find the non-killer acted with reckless indifference to human life simply because he participated in a burglary. This argument is not supported by the record.

During closing argument, the prosecutor made the following statements concerning a finding of reckless indifference to human life: "Reckless indifference to human life means that the defendant knows or is aware that his acts involve a grave risk of death to an innocent human being. [¶] How do we know that occurred in this case? It's [a] pretty simple concept, policy behind this. That is your home is your castle. [¶] You enter someone's home. Either the person who owns the home could be hurt perhaps while someone is fleeing, perhaps [because] they're surprised, the perpetrator, and a fight breaks out. [¶] Perhaps because the person inside has a heart attack, or it could be because that person inside has a weapon, that is the homeowner, and shoots the person or stabs or commits some other sort of attack on the person entering their home. [¶] So reckless indifference to human life means you know when you go in there that somebody, and it might be the worst case scenario, but nonetheless if you enter that home somebody could get hurt and die. [¶] Jovan Hall was on the stand. He knows, he knows this. He told you in fact that that was one of the reasons in his lecture to [Adams] for not going in the burglary at all. [¶] He was saying, well, one, it's trespass, and two, someone could be inside, and somebody might get hurt or injured. That was his reasoning for telling [Adams] not to go in there in the first place. [¶] If Mr. Hall knows that, I think it's clear that Mr. Adams knows that and Mr. Lewis knows that. It's reckless. [¶] You go into somebody's house at night, all the lights are out. That is a reckless indifference to human life. [¶] It's completely reckless to enter someone's house. You don't know if you're gonna get shot or somebody's in there. [¶] They knocked on the door. They took some precautions, but they entered the house.

But while they're fleeing even, trying to get away, somebody can get injured. That's a special allegation here."

While the prosecutor discussed the elements of burglary, he tied those elements to the actual circumstances of this case. He also discussed facts that were not elements of the burglary but revealed the non-killer's state of mind. For example, the plan was undertaken at night, with knowledge that someone could discover them, despite their apparent precautions to avoid detection.*fn3 Neither the instructions nor the prosecutor's argument misrepresented the requirements of Tison and Penal Code section 190.2, subdivision (d). Accordingly, we conclude the trial court did not err.

Opinion at 10-15.

Tison considered the role that a defendant's intent should play in an Eighth Amendment determination of whether the death penalty is an excessive punishment for a particular defendant. Specifically, Tison held that a reckless disregard for someone's life, combined with an intent to engage in conduct that endangers that person's life and ultimately results in his death, is sufficient to permit a sentence of death. Pursuant to Cal. Penal Code § 190.2, a criminal defendant in California can receive a sentence of death or life without the possibility of parole if, among other things, a murder was committed while the defendant was engaged in a first or second degree burglary or the immediate flight therefrom. Cal. Penal Code § 190.2 (17). A person who is not the killer may receive such a sentence if he commits a first or second degree burglary "with reckless indifference to human life." Cal. Penal Code § 190.2 (d).

The trial judge's instruction in this case regarding the circumstances under which petitioner could receive a sentence of life without the possibility of parole, which was modeled after the requirements of Tison, was not incorrect and did not violated petitioner's right to a fair trial. As explained by the California Court of Appeal, the instruction required the jury to find that petitioner acted with "reckless indifference to human life" when he engaged in the actions leading to Suter's death, defined as a knowledge that his acts involved a grave risk of death to an innocent human being. In his closing argument, the prosecutor specifically noted that the circumstances of the burglary in this case carried a high risk of injury or death. Under these circumstances, there is no likelihood the jury believed that the fact that a burglary was committed, standing alone, was sufficient for a finding of "reckless indifference to human life." On the contrary, by virtue of the special circumstance jury instruction and the prosecutor's closing argument, petitioner's jury was informed that the actual circumstances of the burglary had to carry a grave risk of injury or death to justify a sentence of life without the possibility of parole. This was sufficient to satisfy the requirements of Tison and the due process clause. Accordingly, petitioner is not entitled to relief on this claim.

2. Sufficiency of the Evidence

Petitioner's next claim is that the finding as "true" the felony-murder special circumstance allegation should be set aside because there was insufficient evidence he committed the burglary of Suter's apartment with reckless indifference to human life. Pet. at 41. In support of this argument, petitioner notes that the identity of Suter's killer was never conclusively established and that there was evidence he and Adams did not enter the apartment until they had established that it was vacant. Id. at 42. He also notes that neither he nor Adams armed themselves with "a deadly weapon, i.e., a gun or knife." Id.

The California Court of Appeal rejected this claim on the ground that the jury was not required to make a finding of reckless indifference to human life before finding the special circumstance true because there was sufficient evidence that petitioner himself was the killer. The court reasoned as follows:

Both defendants assert the evidence was insufficient to establish they acted with reckless indifference to human life and, therefore, the special circumstance finding must be reversed. We must consider this argument separately as to each defendant because, while there was sufficient evidence Lewis was the actual killer, there was no evidence Adams was the actual killer.

As Lewis acknowledges, the requirement of finding reckless indifference to human life before finding true a burglary special circumstance does not apply if there was sufficient evidence for the jury to conclude that the defendant was the actual killer. (See Pen. Code, § 190.2 [requiring reckless indifference only if defendant not actual killer]; see also People v. Smithey (1999) 20 Cal.4th 936, 1016 [same].) Since we conclude there was sufficient evidence for the jury to conclude that Lewis was the actual killer, we need not consider his reckless indifference argument.

Lewis admittedly encountered Suter as he was exiting the apartment. He asserted he merely bumped her, but the evidence, including his proximity to her, her injuries, and the likelihood that the injuries were caused by the flashlight he was carrying, support the inference he beat her, striking her at least four times with considerable force. Additionally, he criticized Adams for leaving him at the apartment and stated he had hit Suter "upside the head."

Opinion at 18-19. The question before this court is whether the state court's conclusion that sufficient evidence supported a finding that petitioner killed Suter is contrary to or an unreasonable application of United States Supreme Court law.

There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.13 (9th Cir. 2005). Viewing the evidence in the light most favorable to the verdict, and for the reasons expressed by the state appellate court, there was sufficient evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that petitioner fatally injured Suter with his flashlight when he encountered her after he burgled her apartment. Accordingly, the conclusion of the state court that sufficient evidence supported the jury's true finding on the burglary special circumstance is not contrary to federal law and may not be set aside.

Even if a finding of reckless indifference was required in order to support petitioner's sentence of life without the possibility of parole, this court concludes that the evidence was sufficient for such a finding. As stated by the California Court of Appeal in connection with its decision on this claim regarding petitioner's co-defendant Adams:

Adams went to the Stonecreek Apartments intending to commit a burglary. Just days earlier, he had committed a violent entry into an apartment, assaulting the occupant and demanding money. This time, he went with intent to commit a crime in the dark. He claims he made sure there was no one inside before entering; however, the jury was not bound by his claim. Indeed, a burglar can never be certain no one is in a home into which he enters. Here, there was evidence entry was made through the window and the apartment, fortuitously being temporarily empty, was searched for valuables. Adams knew the occupant could return at any time. His history shows he was willing to use force to complete his crimes. Committing the crime in concert with Lewis made it easier to use violence to accomplish their goal by overpowering the occupant.

Residential burglary, especially under the specific circumstances of this case, including a nighttime entry during a power outage, poses a serious risk to innocent human beings. (citation omitted.) In the dark, a victim is more likely to happen upon the criminal unexpectedly, exactly as happened here. Furthermore, violence is more likely to take place with the combination of surprise and close proximity. This violence, intensified by the criminal's desire to complete the crime and escape and by the victim's natural impulse to protect life, limb, and abode, poses a grave risk of death to an innocent human being. Adams's was not a harmless prank gone awry; it ...


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