United States District Court, N.D. California
KEITH H. KING, Petitioner.
JOHN SOTO, Warden Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS
LAB SON FREEMAN United States District Judge.
H. King Petitioner, a state prisoner represented by counsel,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his state criminal conviction
for first degree burglary under California Penal Code §
459-460(a). Pet., ECF 1. Petitioner asserts three claims: (1)
the trial court violated his due process rights by denying
his request to change his plea to not guilty by reason of
insanity (“NGI”); (2) the trial court violated
his right to present a defense by limiting the scope of the
expert witness's testimony; and (3) the trial court
violated his constitutional rights by not instructing the
jury that an individual juror could not find him guilty of
burglary if the juror was unable to conclude which of the
target offenses he committed. Id. Respondent filed
an answer addressing the merits of Petitioner's claims,
and exhibits in support thereof. ECF 11, 13-15. Petitioner
filed a traverse. ECF 20. Having reviewed the briefs and the
underlying record, the Court concludes that Petitioner is not
entitled to relief and DENIES the petition.
2011, Petitioner was tried and convicted in Santa Clara
County Superior Court. A jury found Petitioner guilty of
first degree burglary. Pet. 1-2; Cal. Penal Code § 459.
On September 23, 2011, the trial court sentenced Petitioner
to 29 years to life in state prison. Pet. 2.
appealed and, on June 20, 2013, the California Court of
Appeal issued a written opinion affirming the judgment. Ex. 6
to Answer (“Cal.Ct.App. Order”), ECF 15-3. On
September 18, 2013, the California Supreme Court denied the
petitions for review in both the direct review and habeas
cases. Ex. 9-10 to Answer, ECF 15-5. Petitioner initiated the
instant petition in this Court on August 1, 2014. Pet.
SUMMARY OF EVIDENCE AT TRIAL
written opinion, the state appellate court fairly and
accurately summarized the factual background of
Petitioner's case at trial as follows:
A. The Burglary
On June 6, 2005, Lorena Wright lived on Grey Ghost Avenue in
San Jose with her husband and three-month-old daughter.
Wright's husband had gone to work at about 5:30 a.m. that
At about 6:00 a.m., Wright was awakened by a noise. She went
into her dining room, carrying the baby, and saw defendant
outside her house. Defendant was trying to take the screen
off a window and was talking to himself. Wright called 911.
Wright told the 911 dispatcher that someone was trying to get
into her house. In a whisper, she remained in communication
with the dispatcher for about 13 minutes. She heard defendant
in the backyard, trying to open a door. She then heard him on
the side of the house, trying to open a window near the
fireplace. She eventually heard a noise “[l]ike he
break it open.” About nine minutes after she first
called 911, Wright heard defendant inside her house.
At trial, Wright described seeing defendant inside her guest
bedroom, trying to open her large safe. She described how
defendant was talking to himself each time she saw him, and
how he was making a noise “kind of like” moaning.
About a minute after defendant's entry into the
residence, the dispatcher informed Wright that an officer was
pulling up in front of her house. The dispatcher instructed
her to remain on the phone and “[s]tay in the
bedroom” with the door locked, but after another two or
three minutes, Wright went outside and contacted the
San Jose Police Sergeant Russell Bence, one of the responding
officers, went to the back of Wright's house. He saw
defendant inside, walking towards the back door. Upon seeing
the officer, defendant turned and walked towards the front of
the house. When the officer ordered him down to the ground,
defendant complied. Defendant was taken into custody.
The parties stipulated that “none of the witnesses in
this case observed the defendant with an erection, with his
pants off, his zipper down, or his private parts
B. Defendant's Post-Arrest Statements
San Jose Police Officer Nicholas Barry interviewed defendant.
He read the Miranda advisements, and defendant
indicated he understood each one. Defendant began talking
after the officer asked if he wanted to explain what had
According to defendant, “a woman friend at a party told
him to go over to [Wright's] house . . . because the
woman there needed him to show her daughter the difference
between a hard penis and a soft penis.” The woman at
the house let him inside so he could “fuck in the safe
because the safe was for fucking.” The man of the house
“was so mad that he was there to fuck his woman that he
removed the screens from the house to make [defendant] look
bad, ” although “the man was also secretly turned
on that he was there to fuck his woman.” Defendant was
jittery during the interview process, which can be a sign of
being under the influence of a controlled substance. However,
Officer Barry did not suspect that defendant was under the
influence and thus did not order a blood or urine sample.
C. Expert Witness Testimony
Dr. Brad Novak, a psychiatrist, testified for the defense. He
evaluated defendant in 2008. He read police reports, mental
health records, and interviewed defendant. He noted that
defendant had been hospitalized for psychiatric problems five
times in the months leading up to the incident. All of these
hospitalizations were related to methamphetamine or alcohol
Dr. Novak believed that defendant suffered from several
mental disorders at the time of the offense: amphetamine
dependence, alcohol dependence, cocaine dependence in
remission, opiate dependence in remission, amphetamine
intoxication, alcohol intoxication, amphetamine-induced
psychotic disorder with delusions, and antisocial personality
disorder. In particular, he was suffering from paranoid
Dr. Novak explained that a psychosis is characterized by
confusion and “a break from reality.” He opined
that defendant's behavior at the time of the incident was
consistent with someone who was intoxicated and psychotic.
Defendant's statements were consistent with amphetamine
intoxication, which can cause a person to become hypersexual
D. Pretrial Proceedings
On June 8, 2005, the District Attorney filed a complaint
charging defendant with first degree burglary by entering an
inhabited residence with the intent to commit theft.
§§ 459, 460, subd. (a). The complaint alleged that
defendant had four prior convictions that qualified as
strikes, §§ 667, subds. (b)- (i), 1170.12, and
three prior convictions that qualified as serious felonies.
§ 667, subd. (a).
On August 22, 2005, the trial court ordered defendant
examined by a psychotherapist to provide trial counsel with
information relevant to the decision “whether to enter
or withdraw a plea based on insanity or to present a defense
based on his or her mental or emotional condition.”
Cal. Evid. Code § 1017.
On November 8, 2005, the trial court declared a doubt as to
defendant's competency. The court appointed three doctors
to examine him. On February 22, 2006, the trial court found
defendant not competent to stand trial. On March 15, 2006,
defendant was committed to the Department of Mental Health.
Criminal proceedings resumed on September 6, 2006, when the
trial court found defendant had been restored to competency.
The District Attorney then filed a first amended complaint,
which added an additional strike allegation, § 667,
subds. (b)-(i), 1170.12, and two additional prior serious
felony allegations. § 667, subd. (a).
On October 30, 2006, the trial court again declared a doubt
as to defendant's competency. The court appointed two
doctors to examine him. On January 31, 2007, the trial court
found defendant not competent to stand trial. Defendant was
committed to the Department of Mental Health on February 28,
Criminal proceedings resumed on August 25, 2008, when the
trial court found defendant had been restored to competency.
On September 18, 2008, the District Attorney filed a second
amended complaint, which alleged that defendant committed
burglary by entering an inhabited residence with the intent
to commit theft and with the intent to commit a sexual
assault. § 220. The second amended complaint alleged
that defendant had five prior convictions that qualified as
strikes, §§ 667, subds. (b)-(i), 1170.12, and as
serious felonies. § 667, subd. (a).
On September 25, 2008, after a preliminary hearing, the
District Attorney filed an information containing the same
burglary charge and prior conviction allegations as in the
second amended complaint.
Defendant entered a plea of not guilty by reason of insanity
(NGI) on September 29, 2008. The trial court appointed three
doctors to evaluate him. Two of the doctors disagreed about
whether defendant was sane at the time of the offense. The
third doctor did not render an opinion because defendant
terminated the evaluation process early.
On March 4, 2009, the trial court again declared a doubt
about defendant's competency.
On July 10, 2009, the parties stipulated that defendant was
not competent to stand trial. The trial court committed him
to the Department of Mental Health that day. On December 8,
2010, after a court trial regarding defendant's
competency, the trial court found defendant competent to
stand trial. On January 24, 2011, defendant withdrew his NGI
plea and entered a not guilty plea.
E. Trial Proceedings
A jury trial began on March 16, 2011. On that date, the trial
court granted defendant's request to bifurcate the prior
conviction allegations, and defendant waived jury trial on
On March 17, 2011, defendant moved to re-enter an NGI plea,
but the trial court denied the motion. On March 21, 2011, the
District Attorney filed a first amended information that made
non-substantive changes to the burglary charge.
On March 24, 2011, the prosecution began presenting evidence.
On March 25, 2011, the District Attorney moved to file a
second amended information. The prosecution proposed to add a
third theory of burglary: that defendant entered the
residence with the intent to commit indecent exposure. §
314. The trial court granted the motion on March 28, 2011.
On March 30, 2011, the jury found defendant guilty of
burglary. On April 4, 2011, the trial court found all of the
prior conviction allegations true.
At sentencing on September 23, 2011, the trial court imposed
a 25-year determinate term for the five prior serious felony
allegations with a consecutive indeterminate term of 29 years
to life for the burglary.
Cal.Ct.App. Order 2-7.
Court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). A
federal writ of habeas corpus may not be granted with respect
to any claim that was adjudicated on the merits in State
court unless the State court's adjudication of the
claims: “(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); Williams v.
Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1)'s ‘contrary to' and
‘unreasonable application' clauses have independent
meaning.” Bell v. Cone, 535 U.S. 685,
694 (2002) (quoting Williams v. Taylor, 529 U.S.
362, 404-05 (2000)). “Under the ‘contrary to'
clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts.”
Williams, 529 U.S. at 412-13. “Under the
‘unreasonable application' clause, 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.” Id.
at 413. The only definitive source of clearly established
federal law under 28 U.S.C. § 2254(d) is in the holdings
of the Supreme Court as of the time of the relevant State
court decision. Id. at 412.
AEDPA, the federal habeas court must accord a high level of
deference to State court decisions. See Harrington v.
Richter, 131 S.Ct. 770, 783-85 (2011); Felkner v.
Jackson, 131 S.Ct. 1305 (2011) (per curiam). A federal
court on habeas review 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.”
Williams, 529 U.S. at 411. Rather, the application
must be “objectively unreasonable” to support
granting the writ. Id. at 409. In other words, the
writ may be granted only “where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with [the United States Supreme
Court's] precedents.” Harrington, 131
S.Ct. at 786 (2011). Furthermore, if constitutional error is
found, habeas relief is warranted only if the error had a
“substantial and injurious effect or influence in
determining the jury's verdict.” Penry v.
Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993)).
State court decision to which Section 2254(d) applies is the
“last reasoned decision” of the State court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);
Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.
2005). When there is no reasoned opinion from the highest
State court considering a petitioner's claims, the court
“looks through” to the last reasoned opinion.
Ylst, 501 U.S. at 805. The last reasoned State court
opinion on Petitioner's claims is the California Court of
Appeal's denial of his direct appeal and habeas petition.
See Cal.Ct.App. Order.