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Ellis v. Johnson

United States District Court, C.D. California

November 12, 2014

MOY YAMIL ELLIS, Petitioner,
v.
D.K. JOHNSON, Warden, Respondent

Moy Yamil Ellis, Petitioner, Pro se, Chowchilla, CA.

For D K Johnson, Respondent: Jennifer A Jadovitz, Office of the Attorney General, California Department of Justice, San Diego, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HON. KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

SUMMARY OF RECOMMENDATION

Moy Yamil Ellis (" Petitioner"), a California state prisoner proceeding pro se, has filed a First Amended Petition for Writ of Habeas Corpus (" Amended Petition") pursuant to 28 U.S.C. § 2254(d), challenging her convictions for murder, torture, assault on a child causing death, and child abuse, in San Bernardino County Superior Court. On habeas review, Petitioner sets forth two claims of alleged constitutional error: (1) admission of a co-defendant's out-of-court testimonial statements, in violation of Petitioner's Sixth Amendment Confrontation Clause rights; and (2) instructional error. As explained below, both claims fail on their merits. Accordingly, the Court recommends the Amended Petition be denied.

II.

PROCEDURAL HISTORY

On January 6, 2010, following a joint jury trial of Petitioner and Petitioner's boyfriend Thomas Darthart (" Darthart") in California Superior Court for the County of San Bernardino, Petitioner was convicted of the following crimes: (1) first-degree murder involving the infliction of torture, in violation of California Penal Code sections 187(a) and 190.2(a)(18); (2) torture, in violation of California Penal Code section 206; (3) assault on a child causing death, in violation of California Penal Code section 273ab; and (4) child abuse, in violation of California Penal Code section 273a(a). Lodgment[1] (" Lodg.") No. 7 (Clerk's Transcript on Appeal (" CT")) at 483-88.[2] All of these convictions arose from the death of Darthart's son Thomas Timothy Fredric Darthart (" Thomas") on September 5, 2006. Id. at 161. The trial court sentenced Petitioner to life in prison without the possibility of parole. Id. at 573-74.

On February 28, 2012, on direct appeal, the California Court of Appeal affirmed Petitioner's convictions in a reasoned decision. Lodg. No. 4. On April 30, 2012, Petitioner filed a petition for review of the appeal with the California Supreme Court. Lodg. No. 5. On May 9, 2012, the California Supreme Court summarily denied review of the appeal. Lodg. No. 6.

On July 29, 2013, Petitioner filed a federal habeas corpus petition (" Petition") with this Court. (ECF Docket No. (" dkt.") 1). In the Petition, Petitioner set forth five grounds for federal habeas corpus relief. Pet. at 2-3. On September 3, 2013, Respondent filed a Motion to Dismiss, contending three of these claims were unexhausted and only two claims had been presented before the state courts. (Dkt. 7). On February 24, 2014, the Court issued an Order advising Petitioner that the Petition was subject to dismissal unless she timely filed an amended petition alleging only exhausted claims. (Dkt. 9).

On March 24, 2014, Petitioner filed the instant Amended Petition. (Dkt. 12). In the Amended Petition, Petitioner sets forth the two exhausted claims in the original Petition: (1) admission of co-defendant Darthart's out-of-court testimonial statements, in violation of her Sixth Amendment Confrontation Clause rights; and (2) submission of erroneous jury instructions regarding felony first degree murder based on torture. Am. Pet. at 5. On May 23, 2014, Respondent filed a Return to the Petition. (Dkt. 15). Petitioner has not filed a reply to the Return. The matter thus stands submitted and ready for decision.

III.

RELEVANT FACTS

In its reasoned decision affirming Petitioner's convictions, the California Court of Appeal summarized the factual background of the case and the evidence presented at Petitioner's trial. See Lodg. No. 4. Petitioner has not challenged the Court of Appeal's summary, and thus, it is " presumed correct, " absent rebuttal by the Petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) (" Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.") (internal citations and quotation marks omitted). The Court of Appeal's summary is excerpted below:

Prosecution Case
At approximately 3:00 p.m. on September 5, 2006, which was Little Thomas's [( i.e . Thomas Timothy Fredric Darthart)] third birthday, Darthart telephoned 911 and said Little Thomas had fallen in a bathtub the previous night, Darthart had revived him through cardiopulmonary resuscitation (CPR) and afterwards Darthart went to sleep. The following afternoon, when Darthart awoke, Little Thomas was unconscious and his stomach was swollen but he was not moving, although he was breathing.
Paramedics arrived at Darthart's residence a few minutes later, and Darthart told them Little Thomas was still breathing. However, they noticed Little Thomas was injured, lacked a pulse and showed signs of lividity. They used an electrocardiogram machine but he had no heart rhythm; therefore, the paramedics pronounced him dead. One paramedic described Darthart's and Ellis's demeanors as " fairly nonchalant, " and noted they did not cry or show any emotion.
Barstow City Police Sergeant Mark Franey processed the crime scene in the apartment and saw old food and many cockroaches in the refrigerator. No food was in the kitchen cabinets. Sergeant Franey found a paddle with Little Thomas's name and a sad face drawn on one side of it, and Ellis's daughter's name and a sad face drawn on the reverse side. Sergeant Franey also found a folded belt that might have been used to spank someone. Sergeant Franey overheard Darthart and Ellis expressing their love for each other, but they did not mention Little Thomas or express remorse about his death. Ellis stated, " I didn't do anything." Apart from one teddy bear, Sergeant Franey did not see any evidence of possible birthday celebrations for Little Thomas.
Approximately one month before Little Thomas's death, Ellis had told her neighbor, Jenette Gay, that Little Thomas had said he hated Ellis and did not have to do what she said. Ellis concluded he had " the devil in him." Gay encouraged Ellis to overlook Little Thomas's comment because he was just a baby.
Three days before Little Thomas's death, Ellis went to Gay's house and cried continuously for approximately ten minutes without answering Gay's questions about why she was crying. Ellis returned to her home afterwards. Gay knocked on Ellis's door that afternoon but no one answered despite Gay's belief the family was inside.
. . . .
Darthart's Pre--Miranda Police Interview
Barstow City Police Officer Andrew Frank Espinoza was assigned to investigate Little Thomas's death and met Darthart and Ellis at their residence on September 5, between 3:00 p.m. and 4:00 p.m. He invited them to accompany him in an unmarked police vehicle to the detective division annex for an interview. They both agreed, and were not handcuffed or arrested en route to the interview. At the annex, Officer Espinoza asked Darthart if he understood he was free to leave, and Darthart confirmed he understood.
A video recording and transcript of Darthart's interview was introduced at trial. Officer Espinoza started it by offering Darthart something to drink and commiserating with him. After Officer Espinoza obtained Darthart's background and contact information, he told him, " [Y]ou understand that you're not under arrest or anything. We would just like to talk to you about what happened with your son. I'm sorry about the death of your son. Um, okay, it's unfortunate uh, have what happen, you know, and, but we were called in there and uh, I wanted to talk to with [sic ] you about that like we usually we talk with the people in the home." Darthart responded, " Okay, " and immediately volunteered, " Yeah, there's some bruises on [Little Thomas's] back, cause we was at the park last Saturday. And he was running around he fell down the bleachers. He [scarred] up the back of his legs."
. . . .
Before the interview concluded, Darthart requested a cigarette and got up to get one. A detective directed him to an outdoor spot behind the annex and allowed him to smoke there unattended.
Ellis's Police Interview
While Darthart was smoking a cigarette, Officer Espinoza explained to Ellis that she was not under arrest and was free to leave at any time. She indicated she understood. She was not placed in handcuffs. . . . .
Ellis admitted disciplining Little Thomas with a paddle, including spanking him with it five times on the evening of September 3, because he had soiled himself despite being potty trained. She said they had a rule by which they spanked Little Thomas five times whenever he got in trouble. She said Darthart also had spanked Little Thomas with the paddle that evening. Officer Espinoza told Ellis he had received information from another officer about a belt found in Ellis's apartment and asked whether she had used it on Little Thomas. She paused, said she knew that anything she said could be used against her in court, but confessed, " I'm going to corroborate what your sergeant told you. . . . Yes, there is a belt, and I've used it to spank [L]ittle Thomas with [sic ]." She also admitted Darthart had used the same belt to spank Little Thomas, most recently on September 3.
Ellis said she generally disciplined Little Thomas by whipping him and requiring him to stand in the corner with his hands in the air. Sometimes he looked back when he was not supposed to, and she and Darthart would " pop him with the belt." She further acknowledged, " Yes, we have spanked him with a wood board, paddle and belt." Ellis admitted she and Darthart caused the injuries to Little Thomas's buttocks and legs with their discipline, but maintained his fall from the bleachers caused the injuries to the back of his knee and the bottom of his calf. She said his head injuries resulted from his fall in the tub and their CPR efforts.
Ellis admitted she had last used methamphetamines three or four days before Little Thomas's death. She had smoked marijuana as recently as 8:00 a.m. on the day he died, after checking on him and concluding he was okay.
Ellis interrupted the interview, asked to see Darthart, and walked to the lobby where Darthart sat. They got cigarettes and walked outside the annex. Officer Espinoza conferred with another detective inside, and later noticed Darthart and Ellis had moved further away from the annex building. After he arrested them, Ellis changed from being unemotional and having a blank stare, and she started crying. She told Officer Espinoza, " You think we killed our baby?"
Darthart's Post--Miranda Interview
That evening, Officer Espinoza realized he had mistakenly failed to record part of Darthart's interview and Ellis's entire interview. Officer Espinoza Mirandized Darthart, who agreed to talk in a second interview, which was recorded and played for the jury.[3] Darthart stated that on September 5, he and Ellis awoke around 7:00 a.m. and checked on Little Thomas, whose heart was beating. Darthart took Ellis's daughter to school, returned and went to sleep until approximately 2:30 p.m. He saw Little Thomas's condition and called 911.
Darthart said he had last disciplined Little Thomas about two weeks earlier but he had used his hand " cause [Little Thomas's] booty was like cut up. So I know, and you can see the markings that you know had been there for a minute." Darthart said that most recently Ellis had whipped Little Thomas with a paddle five times because he had soiled himself. Afterward, Darthart sent Little Thomas to stand in a corner. . . .
Darthart explained how Little Thomas got some of his injuries: Ellis had whipped his bottom with a paddle because he had peed on himself. Darthart said he did not use a paddle on Little Thomas, only his hands. Further, Little Thomas liked to pick on the sores. Darthart knew Ellis had disciplined Little Thomas with a paddle, and said he " didn't have no problem with that, cause that was her discipline" as Little Thomas's care provider. Specifically, Darthart described " like permanent, like two circles" on Little Thomas's buttocks, clarifying, " [Ellis] said she whupped him the other day so, I have no problem with that. I have no problems with her having to disciplining [sic ] Little Thomas D., and that's how it was."
. . . .
Autopsy
Dr. Steven Trenkle, a forensic pathologist, performed an autopsy on Little Thomas's body and summarized his findings regarding the cause of death: " I think he was beaten. At some time in the past he had been burned. He had been hit about the head multiple times, and at least in one instance he might have been pushed down and hit his head, or he might have been pushed against a solid object to cause the injuries I saw on the back of the head. And at some point, while he was still alive and breathing, he was under water and drowned. Whether that was intentional, I don't have a way of determining that."
. . . .
. . . Dr. Trenkle classified Little Thomas's manner of death as homicide.
. . . .
Ellis's Trial Testimony and Defense
Ellis testified she was engaged to marry Darthart, and since June had cared for Little Thomas when Darthart was at work at a restaurant.
. . . .
Ellis testified she had spanked Little Thomas on his buttocks five times, but denied hitting him with a paddle or a belt, or having told Officer Espinoza anything to that effect. On August 26, Ellis went to her mother's house and her family told her Little Thomas had injuries to his buttocks. Ellis acknowledged those injuries " were bad, " although she regarded them as treatable. Little Thomas had a bruise on his rib and one on his upper arm, and Darthart said the bruises came from him snatching up Little Thomas. On August 28, Ellis saw Little Thomas's injuries from his fall at the ballpark but they seemed treatable to her. The night of September 4, she and Darthart disciplined Little Thomas by striking his chest three times with the palm of his hand, likely causing his chest injuries. She conceded she did not tell Officer Espinoza about that because she loved Darthart and was covering up for him. She acknowledged she and Darthart were the only two adults at home with Little Thomas during the nine days before he died.
At trial, Ellis admitted making the paddle, claiming she sought to scare the children but not to discipline them. She told Officer Espinoza she had used methamphetamine about four days before Little Thomas's death. She confirmed that on September 5, Little Thomas was in the bed next to her; however, she did not check to see if he was okay because Darthart had checked. She had smoked marijuana and returned to bed.
. . . .

Lodg. No. 4 at 2-14 (footnote added).

The evidence noted above was presented at Petitioner and Darthart's joint trial. In a special instruction, the trial court, citing People v. Rolon, 160 Cal.App.4th 1206, 73 Cal.Rptr.3d 358 (Cal.Ct.App. 2008) and other precedent, instructed the jury that a person with care and custody of a child had a legal duty to protect a child from child abuse or corporal punishment. CT 453. The trial court also instructed that a person or caretaker who " knowingly fail[ed] to take reasonable steps to prevent such abuse may be criminally liable for the abuse if the purpose of the nonintervention [wa]s to aid and abet the abuse." Id. The prosecutor emphasized this " aiding and abetting" theory of liability in his closing argument, arguing Petitioner could be found guilty of the crimes charged regardless of whether she personally abused Thomas. Lodg. No. 8 (Reporter's Transcript on Appeal (" RT")) at 1362-66.

After the jury's verdict on January 6, 2010, see CT 483-88, Petitioner filed a motion for a new trial on February 9, 2010, arguing the admission of Darthart's Mirandized statements in his second recorded interview with police on September 5, 2006 violated her rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. CT 514-20. The trial court denied the motion, acknowledging that while admission of the statements was erroneous, any error was harmless because of Petitioner's own incriminating admissions to police officers on September 5. RT 1500-02.

IV.

STANDARD OF REVIEW

Petitioner's claims are subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). Under AEDPA, federal courts may grant habeas relief to a state prisoner " with respect to any claim that was adjudicated on the merits in State court proceedings" only if that adjudication:

(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).

Overall, AEDPA presents " a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, __ U.S. __, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). The federal statute presents " a difficult to meet . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, __ U.S.__ , 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal citation and quotation marks omitted). On habeas review, AEDPA places on petitioners the burden to show that the state court's decision " was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). Put another way, a state court determination that a claim lacks merit " precludes federal habeas relief so long as fairminded jurists could disagree" on the correctness of that ruling. Id. at 786. Federal habeas corpus review therefore serves as " a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. (internal citation and quotation marks omitted).

In a habeas action, this Court reviews the state court's last reasoned decision. Maxwell v. Roe, 628 F.3d 486, 495 (9th Cir. 2010). See also Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (when a state supreme court denies discretionary review of a decision on direct appeal, the appellate court's decision is the relevant state-court decision for purposes of AEDPA's standard of review); Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (holding that California Supreme Court, by silently denying petition for review over appellate decision, presumably did not intend to change the California Court of Appeal's analysis).

Here, the California Court of Appeal's opinion disposing of Petitioner's direct appeal, see Lodg. No. 4, stands as the last reasoned decision with respect to both of the claims Petitioner raises in her Amended Petition. The Court of Appeal's decision will, thus, be reviewed under AEDPA's deferential standard of review for any claims " adjudicated on the merits." 28 U.S.C. § 2254(d); Richter, 131 S.Ct. at 784.

V.

DISCUSSION

A. Petitioner's Confrontation Clause Claim

Petitioner argued on direct appeal that the admission of Darthart's Mirandized testimonial statements in his second recorded interview with police officers on September 5, 2006, violated her rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.[4] Lodg. No. 2 at 65-75. In its reasoned decision disposing of Petitioner's direct appeal, the California Court of Appeal rejected Petitioner's Confrontation Clause claim. Lodg. No. 4 at 24-27. The Court of Appeal held that, even assuming the admission of Darthart's statements violated Petitioner's Confrontation Clause rights, " any error was harmless beyond a reasonable doubt." [5] Id. at 25. Accordingly, the Court reviews the Court of Appeal's reasoned disposition of Petitioner's Confrontation Clause claim.[6]

1. Brecht Standard for Assessing Harmless Error

Where evidence has been erroneously admitted in violation of the Confrontation Clause, the error is subject to harmless error analysis. Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011). On federal habeas review, the Court measures the harmlessness of an error according to the standard established in Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); see also Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). Under Brecht, the Court must look to whether a constitutional error had a " substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38.

The U.S. Supreme Court has noted that a habeas court's review under Brecht is more stringent than and " subsumes" AEDPA review of a state court's application of the " harmless beyond a reasonable doubt standard" set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Fry, 551 U.S. at 120. Hence, a state court's reasoning on direct review under the Chapman standard does not affect this Court's analysis under Brecht. Id. That is, the Court must not conduct its usual inquiry under AEDPA and look to whether the state court's application of the Chapman standard was " contrary to or an unreasonable application of clearly established federal law." See 28 U.S.C. § 2254(d)(1). Rather, this Court must independently " apply the Brecht test without regard for the state court's harmlessness determination." Chrones, 629 F.3d at 1012 (emphasis added).

Under Ninth Circuit precedent interpreting Brecht and Fry, the harmless error analysis a habeas court must perform under Brecht differs from the ordinarily deferential AEDPA standard of review.[7] For instance, the Ninth Circuit has instructed that under Brecht, " there is no burden of proof per se " and that " 'we look to the State to instill in us a 'fair assurance' that there was no effect on the verdict.'" Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (alteration and internal citation omitted). Furthermore, the Ninth Circuit has noted that, " [w]here the record is so evenly balanced that a judge 'feels himself in virtual equipoise as to the harmlessness of the error' and has 'grave doubt about whether an error affected a jury substantially and injuriously, the judge must treat the error as if it did so.'" Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting O'Neal v. McAninch, 513 U.S. 432, 435-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).

Accordingly, regardless of the Court of Appeal's rejection of Petitioner's claim based on its " harmless beyond a reasonable doubt" standard analysis, the Court looks to Brecht in assessing the prejudice of the Confrontation Clause violation here.

2. The State Court Decision

The Court of Appeal concluded that the admission of co-defendant Darthart's Mirandized recorded statements to police at trial against Petitioner constituted harmless error. Lodg. No. 4 at 24-27. The Court of Appeal, citing the trial court's reasoning in denying Petitioner's motion for a new trial, noted Darthart's statements to police significantly overlapped with Officer Andrew Espinoza's testimony regarding Petitioner's own admissions to the police. Id. at 26. According to Espinoza, like Darthart, Petitioner also admitted to police on September 5, 2006 that she personally disciplined Thomas using a paddle and that she was at the crime scene taking care of Thomas during the " critical days" prior to Thomas' death. Id. See also RT 848-56. Furthermore, the Court of Appeal cited neighbor Jenette Gay's testimony that Petitioner believed Thomas had the " devil in him, " indicating a possible motive for abusing Thomas. Lodg. No. 4 at 26. See also RT 572, 583. Even if Darthart's statements had not been admitted against Petitioner, the Court of Appeal found, such other evidence would still have led to Petitioner's conviction for the crimes charged. Lodg. No. 4 at 26. For this reason, the Court of Appeal concluded any error from the admission of Darthart's statements was " harmless beyond a reasonable doubt." Id. at 25.

3. Analysis

Petitioner argues Darthart's Mirandized statements prejudiced her defense because they supported the conclusion that Petitioner personally abused Thomas and was responsible for his injuries. Lodg No. 2 at 65-66. Petitioner's focus on whether the statements supported a finding she personally abused Thomas is misplaced. As the trial court informed the jury through special instructions, Petitioner could still be found guilty of the charged offenses under California law even if she had not personally abused Thomas. Indeed, in California, a parent or person owing a common law duty to protect a child can be guilty as an aider and abetter to crimes arising out of child abuse if they " knowingly fail[ed] to take reasonable steps to stop an attack . . . [on the] child" and if the " purpose of nonintervention [wa]s to aid and abet the attack." People v. Rolon, 160 Cal.App.4th 1206, 1219, 73 Cal.Rptr.3d 358 (Cal.Ct.App. 2008) (upholding mother's conviction for murder as aider and abetter based on failure to protect against deadly physical abuse of child in her presence); see also People v. Heitzman, 9 Cal.4th 189, 198, 37 Cal.Rptr.2d 236, 886 P.2d 1229 (1994) (noting a legal relationship between defendant and victim can render defendant criminally liable for failing to protect victim).

There was ample evidence in the record to permit a rational jury to find Petitioner guilty of the charged offenses under an aider and abetter theory. For instance, Petitioner testified she was employed as Thomas' care provider while Darthart was away at work, giving rise to a duty to protect Thomas under California law.[8] RT 1052. See also CT 657-686 (documentation of Petitioner's employment as Thomas' care provider). Petitioner also testified she knew Darthart physically abused Thomas and that she did not intervene or contact law enforcement. RT 1205-06, 1208-1209. Furthermore, Petitioner testified she had been notified of injuries to Thomas' buttocks by members of her family on August 26, 2006. RT 1055. Petitioner additionally testified she and Darthart were alone with Thomas on the night of September 4, 2006. RT 1205-06. Lastly, according to Detective Espinoza's testimony, Petitioner told him on September 5, 2006 that she and Darthart had beaten Thomas with a belt and a wooden paddle on several occasions, including one instance in the days just prior to Thomas' death. RT 850, 854-55. In short, even if Darthart's statements had not been admitted, the jury would still have had sufficient grounds for convicting Petitioner under an aiding and abetting theory of liability. See People v. Ogg, 219 Cal.App.4th 173, 182, 161 Cal.Rptr.3d 584 (Cal.Ct.App. 2013) (finding sufficient evidence to convict mother as an aider and abetter, where mother knew of boyfriend's molestation of daughter and did not intervene); Rolon, 160 Cal.App.4th at 1219; People v. Swanson-Birabent, 114 Cal.App.4th 733, 7 Cal.Rptr.3d 744 (Cal.Ct.App. 2003) (finding sufficient evidence to convict mother as an aider and abetter, where mother watched and did not intervene while her boyfriend molested child).

Consequently, the Court finds that the admission of Darthart's statements did not have a " substantial and injurious effect or influence" on the jury as required for habeas relief. See Brecht, 507 U.S. at 637-38. Accordingly, the Court holds that habeas relief is not warranted on Petitioner's Confrontation Clause claim.

B. Petitioner's Instructional Error Claim

Petitioner also argues that habeas relief is warranted because the trial court erred in instructing the jury with CALCRIM No. 540A, regarding the elements of felony murder based on torture as a predicate felony. Am. Pet. at 5. The California Court of Appeal disposed of Petitioner's erroneous jury instruction claim in its reasoned decision on February 28, 2012, concluding it was both procedurally barred by forfeiture and failed on its merits. Lodg. No. 4 at 31. Because Respondent does not contend Petitioner's claim is procedurally barred, the Court does not raise the bar sua sponte and instead reviews the merits of Petitioner's claim. See Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003) (holding district court erred in sua sponte raising procedural default where district court raised bar after State had filed lengthy response to petition without asserting procedural bar as affirmative defense). Accordingly, the Court reviews the Court of Appeal's reasoned disposition of Petitioner's instructional error claim as an " adjudication on the merits" subject to deference under AEDPA. See 28 U.S.C. § 2254(d).

1. Instructional Error Claims on Federal Habeas Review

Issues regarding jury instructions are generally matters of state law for which federal habeas relief is not available. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). When assessing a claim of instructional error on federal habeas review, " [t]he only question . . . is 'whether [a jury] instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Id. at 72 (internal citation omitted); see Waddington v. Sarausad, 555 U.S. 179, 191, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009). " The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). In assessing such prejudice, " [t]he jury instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (internal citation and quotation marks omitted). " [I]t must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned, ' but that it violated some [constitutional right]." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). " [T]he category of infractions that violate 'fundamental fairness'" has been defined " 'very narrowly.'" Estelle, 502 U.S. at 72-73 (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)).

2. Relevant Jury Instruction

The language of jury instruction CALCRIM No. 540A, as submitted by the trial court at Petitioner's trial, reads as follows:

The defendant is charged in Count 1 with murder, under a theory of felony murder.
To prove that the defendant is guilty of first degree murder under this theory, the People must prove that:
1. The defendant committed or attempted to commit torture.
2. The defendant intended to commit torture. AND
3. While committing or attempting to commit torture, the defendant did an act that caused the death of another person.
A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.
To decide whether the defendant committed or attempted to commit torture, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder.
The defendant must have intended to commit the felony of torture before or at the time of the act causing the death.
It is not required that the person die immediately, as long as the act causing the death and the felony are part of one continuous transaction.

CT 422.

3. Analysis

On direct appeal, Petitioner argued that instructing the jury with CALCRIM No. 540A was erroneous. Lodg. No. 2 at 44-55. Petitioner noted there were two theories by which one could be convicted of first degree murder through an act of torture, under California Penal Code section 189: " murder by torture" and " torture felony murder" (the subject of CALCRIM No. 540A). Id. at 44. See also Cal. Penal Code § 189. Both theories require different mental states under California law. Murder by torture requires a " willful, deliberate, and premeditated intent to inflict extreme and prolonged pain." People v. Steger, 16 Cal.3d 539, 546, 128 Cal.Rptr. 161, 546 P.2d 665 (1976). By contrast, torture felony murder is based on California's felony murder rule: " [t]he mental state required is simply the specific intent to commit the underlying felony." People v. Cavitt, 33 Cal.4th 187, 197, 14 Cal.Rptr.3d 281, 91 P.3d 222 (2004). Petitioner argued that under a proper construction of section 189, a torture felony murder theory must also require a premeditated and deliberate intent to inflict extreme and prolonged pain. Lodg. No. 2 at 46. Otherwise, Petitioner argued, this would treat torture felony murder as a lesser-included offense of murder by torture and render murder by torture " meaningless" under California's statutory scheme. Id. That is, given the " lesser demanding" requirements of torture felony murder, there would never be an occasion where the prosecution would need to rely on a murder by torture theory to procure a conviction under section 189. Id. On this basis, Petitioner argued CALCRIM No. 540A's summary of the elements of torture felony murder was erroneous: it made no mention of a premeditated and deliberate intent to inflict extreme and prolonged pain as an element of torture felony murder. Id. at 51-52.

Petitioner fails to demonstrate that the trial court's submission of instruction CALCRIM No. 540A " so infected [her] entire trial that the resulting conviction violate[d] due process." Estelle, 502 U.S. at 72 (internal citation and quotation marks omitted). Indeed, as Petitioner's arguments on direct appeal themselves demonstrate, her instructional error claim is based entirely on California law because her arguments rely on construction and interpretation of California Penal Code section 189. See In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 746 (9th Cir. 2013) (noting that interpretation of state statutes is a matter of state law). Petitioner effectively argues it is irrational under California's statutory scheme for torture felony murder to be a lesser included offense of murder by torture that has less demanding mens rea requirements. The Court of Appeal rejected this claim on state law grounds, reasoning there was " no unfairness or constitutional infirmity merely because the legislature has adopted slightly different elements to establish [murder by torture and torture felony murder], both of which lead to [a] first degree murder [conviction] . . . ." Lodg. No. 4 at 32. Thus, Petitioner's instructional error claim involves state-law questions for which federal habeas relief is unavailable. See Estelle, 502 U.S. at 67-68 (" [I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Because Petitioner has not shown a due process violation resulting from the challenged instructions that could give rise to a federal constitutional claim, habeas relief is not warranted on Petitioner's instructional error claim.[9]

VI.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Judge issue an order: (1) accepting the findings and recommendations in this Report; (2) directing that judgment be entered denying the Amended Petition; and (3) dismissing the action with prejudice.


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