The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-five years to life imprisonment after a jury found him guilty of second degree murder and assault of a child under the age of eight by means of force likely to produce great bodily injury resulting in the child's death. Petitioner raises several claims in this habeas petition; specifically:
(1) jury instructional error when the jury was instructed that it could convict Petitioner of murder and assault of a child under eight causing death as a natural and probable consequence of aiding and abetting the crime of willfully inflicting upon a child cruel or inhuman corporal punishment or an injury resulting in a traumatic condition ("Claim I"); (2) jury instructional error which allowed the jury to find Petitioner guilty of murder without finding that either he or his co-defendant harbored malice ("Claim II"); (3) jury instructional error "because the trial court's instructions on the natural and probable consequence doctrine improperly allowed the jury to convict him without ever finding that the charged offenses were a foreseeable consequence of the acts which he may have aided and abetted" (Pet'r's Pet. at p. 12.) ("Claim III"); (4) jury instructional error which lightened the State's burden of proof and removed a factual element of the crime from the jury ("Claim IV"); (5) trial court error in denying Petitioner's request to have the prosecutor remove her cross necklace during trial ("Claim V"); and (6) trial court error in denying motion for new trial based on newly discovered evidence ("Claim VI"). For the following reasons, the habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
Either co-defendant Carline Balbuena, whose self-chosen rummy name was "Queen of the Damned," or defendant James Morris, aka "Ultimate Evil," delivered the fatal blows to Balbuena's three-year-old son, Keith Carl Balbuena (KC). . . .
By 8:00 p.m. on November 18, 2005, three-year-old KC was brain dead. A day earlier, paramedics observed severe bruising on his head, torso, chest, pelvis, and leg. The child was unresponsive. The emergency room doctor believed KC had been assaulted as he had a large amount of blood between his brain and his skull, pushing the brain to one side; a large amount of fluid in his abdomen; and a possible liver laceration. It appeared his kidneys had not been functioning normally for at least 24 to 48 hours. He also had a healing burn injury on the sole of his foot.
A surgeon drilled a hole in KC's skull and removed a bone to evacuate blood and relieve the pressure. Retinal hemorrhages in his right eye suggested his head had been shaken and hit very hard against a surface. According to a pediatrician specializing in child abuse, these injuries could not have been sustained from falling from a crib or other household fall; they would require "very significant force" generally associated with falls from major heights or motor vehicle accidents. In his expert opinion, the injuries, including those to KC's abdomen, were intentionally inflicted and the result of abuse.
The pathologist opined that the cause of death was blunt force injuries to the head, torso and abdomen. If the head injury had not killed KC, the abdominal injuries would have. The discoloration along his cheek and lower border of one eye was consistent with having been struck in the eye and was not typical of a fall. Bruising was extensive, including a bruise on his forehead, three bruises on his chest, a bruise on the inside of the left knee, a bruise on the top of his left foot, a bruise on the instep of the left foot, a bruise on the back of his right ankle, two bruises on his left arm, a bruise on his right forearm, a bruise in the muscle of his left buttock, and bruises on his right upper thigh and left hip. The force required to sustain the abdominal injury would have been a "kick or punch that goes up . . . into the belly." The pathologist did not believe the administration of CPR could have caused the abdominal injury. A child who had sustained these abdominal injuries would have had symptoms including nausea, vomiting, pain, and listlessness.
The emergency personnel were not the first to observe evidence of abuse. Morris and his three-year-old daughter, Haylee, moved into Balbuena's apartment in August 2005 to share expenses. Balbuena, with the help of a child care subsidy, enrolled her two children, KC and his one-year-old sister, Angel, in the same preschool Haylee attended. The director noted that KC's speech was delayed and Angel did not move around like a child her age should. In October, KC's teacher and an assistant director saw bruising, inflammation, and scratches on the right side of his eye and ear and reported the injury to child protective services (CPS). CPS investigated the cause of the injury, but both Balbuena and Morris denied using physical punishment or knowing how he received the injury.
Later that month Morris pointed out to the preschool director that KC had burned his foot. Morris told the director he did not want her to "think that [he] did it." According to the director, the foot looked "charred," and since the injury had received no medical attention, she told Morris to take KC to the hospital for treatment. Again she reported the injury to CPS. KC had a third-degree burn that penetrated the dermis and destroyed the nerves. The injury had occurred two days earlier and the surrounding tissue had become infected. About a week later, KC complained to the preschool's assistant director that his foot hurt. She removed his shoe and sock and saw the foot was no longer bandaged and was bloody. Balbuena withdrew the children from the preschool on November 8 because her day care subsidy was terminated.
From November 8 until November 17, KC was in the exclusive care and custody of Balbuena and Morris. They left three-year-old KC and fifteen-month-old Angel alone in the apartment for periods of time while they went to work at a company located a few minutes away from their apartment. They would also take turns coming home and taking care of the children for some of the workday. Life in the apartment by that time had become exceedingly stressful.
It would be an understatement to say that Balbuena cared more about men and their drugs than she did her children. Already a methamphetamine user, she became a drug dealer to support her husband Noel's expensive habit. She slept with her supplier and told him he had fathered her second child. She stole rents from a property she was managing for her mother because she and Noel could not pay their rent, and when Noel left her and she was evicted from her apartment, she lived with friends, eventually in a car with her children, and then moved to Sacramento. Nevertheless, she desired a relationship with Morris and was willing to pay for his marijuana and for much more than her share of the housing and food costs, give him massages, do his laundry, and to provide him with access to her car and cell phone.
Yet, according to Balbuena at trial, Morris was always angry. He did not think that she disciplined her children, and he was particularly annoyed with KC and the lack of progress he was making with toilet training. She described at great length and in disgusting detail how he physically disciplined KC, including forcing him to eat his own feces. She explained that for the first time she also started spanking KC to placate Morris and to keep him from inflicting more severe punishment on the child. She testified she had seen Morris punch KC in the stomach on one occasion. With respect to KC's burned foot, Morris told her he had run a comb down the bottom of his foot while the skin was soft from a bath and the skin peeled off. Morris justified the injury as punishment because KC had not jumped up and down as instructed. Balbeuna also testified that Morris had hit KC on the side of the head, causing the injuries to his ear that had been reported to CPS.
Balbeuna's testimony at trial, however, was at odds with a confession she gave three weeks after KC died, during which she claimed sole responsibility for his death. She confessed that she had been smoking methamphetamine, without Morris's knowledge, which made her feel "numb and stuff." She described how she became extremely angry after coming home for lunch on November 16 because KC vomited the Skittles she had given him as a reward for finishing his chicken nuggets and she was forced to clean it up. She claimed she was so angry she hit his head about 20 to 30 times in 30 minutes. She believed he got a bruise on his leg when she pushed him into the metal railing on his bed, and a black eye when she threw a plastic container of wipes at him.
Balbuena told her interrogator that she probably gave KC the fatal blow later that evening. According to this version, after work she was exasperated because KC had not taken a nap as planned. She dragged him out of bed and hit him against the wall. Enraged because he would not jump up and down in the way she demanded, she started spanking him. She enlisted Morris's help and he hit KC three times with a metal spatula. Finally she made KC stand in the corner, but when he turned around, she pushed his face against the wall and hit him so hard it made a "huge sound" and his head bounced off the wall.
Morris gave a statement after KC was hospitalized but before he died. He assumed responsibility for KC's condition because he had placed him in the crib and he believed KC had fallen while climbing out of the crib. He admitted he made KC jump up and down for up to 30 minutes to punish him for various transgressions. In the late afternoon on November 16, KC fell and hit his eye while doing jumping jacks. Morris told KC to take a nap when he left to pick up Balbuena from work, but when they returned, KC was still awake, so he made him stand with his arms outstretched for another 30 minutes. Later that evening, KC vomited. Morris put him to bed in another room so he and Balbuena could watch a movie. The following morning, Morris found KC in the bathroom, coughing and wheezing. He put KC back to bed but not long after got him up again and took him back to the bathroom. He told KC to stand up straight, but the toddler's knees buckled and he fell to the floor. Morris said KC appeared to be choking and his breathing was very shallow. Hysterical, Balbuena called 911, and according to Morris, he tried to administer CPR. He was afraid he had hurt KC trying to give him CPR.
An expert for the defense agreed with the pathologist that head trauma was the cause of death and the death appeared to be a homicide. He opined, however, that the injury to KC's eye could have been caused by a fall, and he had not sustained significant injuries to the abdomen. Nor did he find the liver had been lacerated.
Morris's sister testified that Balbuena had told her she had once thrown KC across the room. Another witness testified that Balbuena had told him she had been forced to become involved in the murder of her child.
Petitioner appealed his conviction to the California Court of Appeal. On October 5, 2009, the California Court of Appeal affirmed the judgment. The California Supreme Court summarily denied Petitioner's petition for review on January 13, 2010.
Petitioner filed the instant federal habeas petition in September 2010. Respondent filed his answer in December 2010. Petitioner filed a traverse in January 2011.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).
Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
V. ANALYSIS OF PETITIONER'S CLAIMS
A. Claims I, II, III and IV
Claims I, II, III and IV all assert various jury instructional error arguments. The last reasoned decision on these Claims was from the California Court of Appeal on direct appeal which stated the following:
It is true that the verdicts do not disclose whether Morris was found guilty of second degree murder as the perpetrator of the fatal blows to KC or as the aider and abettor to his co-defendant. Indeed, the jurors were not required to agree what his role had been. Thus, we must consider whether the instructions on aiding and abetting, including the natural and probable consequences of felony child abuse, are infirm. We begin with a summary of the basic principles governing the criminal liability of aiders and abettors for crimes they may not have intended, but which are the natural and probable consequences of the target crimes they aided and abetted.
An aider and abettor is a person who, "acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman).) The difficult cases involve the aider and abettor who assists or encourages the perpetrator to commit one crime, but the perpetrator commits another. Under those circumstances, prosecutors often rely on the natural and probable consequences doctrine.
An aider and abettor is "guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider or abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury." (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman), the Supreme Court reaffirmed the three factors necessary to find that a person was an aider and abettor as first enunciated in Beeman, supra, 35 Cal.3d 547, and added an additional two factors when the particular facts trigger application of the natural and probable consequences doctrine. The Supreme Court held that the trier of fact must also find that "(4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (Id. at p. 262, fn. omitted.) The trial court instructed the jury in accordance with these general principles and identified the crime of inflicting physical punishment on a child or felony child abuse as the target crimes Morris aided and abetted (CALCRIM No. 403.)
"Another theory that you may consider in evaluating whether the defendant is guilty of murder or assault on a child resulting in death as charged in Counts I & II, is the natural and probable consequences doctrine of aiding and abetting.
"Before you may decide whether the defendant is guilty of murder or assault on a child resulting in death under this theory, you must first decide whether he or she is guilty of inflicting physical punishment on a child or felony child abuse. "To prove that the defendant is guilty of murder, or the lesser offense of involuntary manslaughter, or assault on a child resulting in death under this theory, the People must prove beyond a reasonable doubt that: "1. The crime of inflicting physical punishment on a child, in violation of Penal Code section 273d(a), or felony child abuse in violation of Penal Code section 273a(a) was committed; "2. The defendant aided and abetted that crime; "3. A coparticipant, during the commission of that target crime of inflicting physical punishment on a child (PC 273d(a)) or felony child abuse (PC 273a(a)), committed the charged crime of murder or the lesser crime of involuntary manslaughter, or assault on a child resulting in death; "AND "4. The commission of the crime of murder, or the lesser offense of involuntary manslaughter, or assault on a child resulting in death was a natural and probable consequence of the commission of the infliction of physical punishment on a child or felony child abuse.
"A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder, or the lesser offense of involuntary manslaughter, or the assault on a child resulting in death was committed for a reason independent of the common plan to commit the infliction of physical punishment on a child or felony child abuse, then the commission of murder or the lesser offense of involuntary manslaughter, or assault on a child resulting in death was not a natural and probable consequence of infliction of physical punishment on a child or felony child abuse. "To decide whether [the] crime of murder or the lesser offense of involuntary manslaughter, or assault on a child resulting in death was committed, please refer to the separate instructions that I will give or have given you on those crimes. "The People are alleging that the defendant originally intended to aid and abet either inflicting physical punishment on a child or felony child abuse. "The defendant is guilty of murder or the lesser offense of involuntary manslaughter, or assault on a child resulting in death, if you decide that the defendant aided and abetted one of these crimes and that murder or the lesser offense of involuntary manslaughter or assault on a child resulting in death was the natural and probable result of one of these crimes. However, you do not need to agree about which of these two crimes the defendant aided and abetted. "In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected was likely to occur." (See CALCRIM No. 403.)
Morris challenges the jury instructions on the natural and probable consequences doctrine on multiple grounds. Nearly all of his arguments were raised and rejected in Culuko, supra, 78 Cal.App.4th 307, a seminal case that disposes of most of the issues before us. Before turning to the issues resolved by Culuko, however, we must first address the false premise and the false analogy upon which this appeal is predicated.
A. Target Crime v. Inherently Dangerous Felony
Morris contends it was error to instruct the jurors they could find him guilty of either murder or assault on a child under the age of eight as a natural and probable consequence of inflicting physical punishment on a child. Neither murder nor assault on a child under eight, in Morris' view, is a reasonably foreseeable consequence of inflicting punishment as a matter of law. He analogizes the predicate or target offense to the unrelated concept of an inherently dangerous felony for felony murder purposes. We begin with the false premise and then consider the false analogy.
The false premise, as aptly pointed out by the Attorney General, is that the foreseeability of the commission of one criminal offense as a result of the commission of another is not an abstract question of law. Morris does not cite, and we have not found, any authority for the proposition that any particular target offense can never trigger the natural and probable consequences doctrine as a matter of law. The law, in fact, is to the contrary. Whether the crime charged is the natural and probable consequence of the target crime is a factual question for the jury to decide. (People v. Cummins (2005) 127 Cal.App.4th 667, 677; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376; People v. Nguyen (1993) 21 Cal.App.4th 518, 530 (Nguyen); People v. Godinez (1992) 2 Cal.App.4th 492, 499.)
In Nguyen, supra, 21 Cal.App.4th 518, we were quite direct that the determination whether a particular crime is a natural and probable consequence of another crime aided and abetted was not to be considered in the abstract as a question of law. (Id. at p. 531.) Justice Sparks further explained: "Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." (Ibid.) We agree with the Attorney General that it is not the law that the charged offense must be reasonably foreseeable based on the bare elements of the target offense aided and abetted, a mere abstraction to be sure.
Morris diverts our attention from the factual circumstances presented and into the analytic thicket of the absurd -- where felony child endangerment, in the abstract, is not inherently dangerous to human life. (People v. Lee (1991) 234 Cal.App.3d 1214, 1219; People v. Caffero (1989) 207 Cal.App.3d 678, 683-684.) He analogizes his target offense under the natural and probable consequences doctrine to an inherently dangerous felony for purposes of the felony-murder rule with the hope of persuading us that it is not reasonable to say that one who aids and abets cruel or inhuman punishment on a child that causes a traumatic physical condition should foresee that the perpetrator might kill the child. Divorced from the disturbing factual circumstances before us, Morris urges us to consider that the crime could be committed even when the traumatic condition is somewhat minor. Since such a crime could not support a felony murder theory of liability because it might be committed in a manner that was not life threatening, Morris concludes it cannot be used as a target offense under the natural and probable consequences doctrine. He erroneously blurs two distinct and unrelated concepts.
The natural and probable consequences doctrine is not, as Morris suggests, a substitute for malice. Malice remains an essential element even when the natural and probable consequences doctrine applies, but the perpetrator, not the aider and abettor, must entertain malice toward the victim. Felony murder, on the other hand, allows the prosecution to utilize the commission of an inherently dangerous felony as a substitute for malice. Thus, an entire body of law has evolved around the counterintuitive notion that many inherently dangerous felonies are not, in the abstract, inherently dangerous to human life. We need not weigh in on the evolution of this branch of the law since the prosecutor did not argue felony murder and the jurors were not instructed on felony murder. Simply put, a target offense for purposes of the natural and probable consequences doctrine is not analogous to an inherently dangerous felony under the felony-murder rule, and there is no reason to import the odd legal gymnastics surrounding the abstract distinctions between inherently dangerous felonies from felony murder into the natural and probable consequences doctrine.
That is not to say that murder or assault on a child under the age of eight causing death is always a reasonably foreseeable consequence of child abuse in its various forms. The Supreme Court in Prettyman made it clear that murder is "not the 'natural and probable consequence' of 'trivial' activities." (Prettyman, supra, 14 Cal.4th at p. 269.) As the court admonished, "To trigger application of the 'natural and probable consequences' doctrine, there ...