FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 judgment of conviction entered against her in the Sacramento County Superior Court on charges of first degree murder, assault on a child resulting in death, and felony child endangerment. She raises three claims of jury instruction error and one claim of ineffective assistance of trial counsel. 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
Either defendant Carline Balbuena, whose self-chosen rummy name was "Queen of the Damned," or co-defendant James Morris, aka "Ultimate Evil," delivered the fatal blows to Balbuena's three-year-old son, Keith Carl Balbuena (KC). Because separate juries convicted them both of murder, we cannot ascertain from the verdicts who perpetrated and who aided and abetted the murder, particularly in light of overwhelming evidence that either or both abused the child over a long period of time, and either or both of them could have caused his tragic death. We affirmed co-defendant Morris's conviction. (People v. Morris (Oct. 5, 2009, C058388) [nonpub. opn.].) With minor modifications, we will use our same summary of the facts.
Balbuena complains she was denied her constitutional right to competent counsel because her lawyer failed to hire an expert on intimate partner battering (IPB). She also urges us to reverse the judgment for an assortment of instructional errors. We accept the Attorney General's concession she is entitled to presentence custody credits and amend the abstracts of judgment to clarify that there is only one restitution and one parole revocation fine. In all other respects, we affirm the judgment.
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 front of the left leg, a cluster of bruises 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, H., 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, A., in the same preschool
H. attended. The director noted that KC's speech was delayed and
A. 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 A. alone in the apartment for periods of time while they went to work at a company located a few minutes 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 had peeled off. Morris justified the injury as punishment because KC had not jumped up and down as instructed. Balbuena 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.
Balbuena'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.
A defense expert 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.
Dckt. No. 1 at 60-67. In her own statement of the facts, petitioner states that David Sprong, Morris's cellmate in the county jail, testified that Morris told him he had killed a boy. Id. at 30.
Petitioner explains that her defense "was that she herself did not inflict KC's injuries and she did not know that Morris had inflicted the injuries until she saw the video of Sprong's statement."
II. Procedural Background
On January 17, 2008, a jury found petitioner guilty of the first degree murder of her three-year old son, in violation of Cal. Penal Code § 187(a); assault on a child under the age of eight by means of force likely to produce great bodily injury, resulting in the death of her three- year old son, in violation of Cal. Penal Code § 273ab; and felony child endangerment of her fifteen month-old daughter, in violation of Cal. Penal Code § 273a(a). Clerk's Transcript on Appeal (CT) at 932, 934. Petitioner received a sentence of thirty-one years to life in state prison.
Petitioner filed a timely appeal in the California Court of Appeal for the Third Appellate District. Resp't's Lodg. Doc. 1. Her judgment of conviction was affirmed in an unpublished opinion dated November 10, 2010. Resp't's Lodg. Doc. 4. That opinion was amended on December 9, 2010. Resp't's Lodg. Doc. 5. Petitioner subsequently filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. 6. That petition was summarily denied on February 23, 2011. Resp't's Lodg. Doc. 7.
Petitioner commenced this action by filing a petition for writ of habeas corpus in this court on May 3, 2011.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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. For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
Under the "unreasonable application" clause of § 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.*fn2 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (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.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87. If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
(en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised."). The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 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 § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853.
Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn3
1. Jury Instruction Error
Petitioner raises three claims of jury instruction error. After setting forth the applicable legal principles, the court will address these claims in turn below.
In general, a challenge to jury instructions does not state a federal constitutional claim. Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely 'undesirable, erroneous, or even "universally condemned,"' but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973).
To prevail on such a claim petitioner must demonstrate "that an erroneous instruction 'so infected the entire trial that the resulting conviction violates due process.'" Prantil v. State of Cal., 843 F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). In making its determination, this court must evaluate the challenged jury instructions "'in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Where the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson, 431 U.S. at 155. See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).
In her first ground for relief, petitioner claims that the instruction given to her jury on the natural and probable consequences doctrine improperly permitted the jury to convict her of first degree murder without a finding that first degree murder was a natural and probable consequence of the "target crime." Dckt. No. 1 at 37. In her second ground for relief, petitioner claims that the jury instruction informing the jury that the offenses of murder and child assault are not complete until the victim's death, and that conduct committed after the fatal blow may constitute aiding and abetting, allowed the jury to convict her on an invalid legal theory. Id. at 41. In her third ground for relief, petitioner claims that the jury instruction on the natural and probable consequences doctrine erroneously permitted the jury to base her conviction on findings that (1) the non-target offenses were a natural and probable consequence of felony child abuse, and that (2) petitioner aided and abetted infliction of physical punishment on a child but did not aid and abet felony child abuse. Id. at 49.
The California Court of Appeal analyzed all of these claims together, ...