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Catlin v. Davis

United States District Court, E.D. California

December 16, 2019

STEVEN CATLIN, Petitioner,
v.
RON DAVIS, Warden of San Quentin State Prison, Respondent.[1]

         DEATH PENALTY CASE

         MEMORANDUM AND ORDER: (1) DENYING CLAIMS 1-68; (2) DENYING PETITIONER'S MOTION FOR EVIDENTIARY DEVELOPMENT, RECORD EXPANSION AND EVIDENTIARY HEARING, (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (4) ISSUING CERTIFICATE OF APPEALABILITY FOR CLAIMS 10, 11, 26(A), 35(A), 35(B), 35(C), AND 35(F) (DOC. NOS. 25, 84) CLERK TO VACATE ANY AND ALL SCHEDULED DATES AND SUBSTITUTE RON DAVIS AS RESPONDENT WARDEN AND ENTER JUDGMENT

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         Petitioner Steven David Catlin (hereinafter “Petitioner”) is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by appointed counsel Saor Stetler and Richard Novak.

         Respondent Ron Davis (hereinafter “Respondent”) is named as Warden of San Quentin State Prison. He is represented in this action by supervising deputy attorney general Kenneth Sokoler.

         Before the court for decision are (i) the petition for writ of habeas corpus filed in this proceeding on September 24, 2008 and its claims 1-68 including subclaims, [2] and (ii) Petitioner's motion for evidentiary development, expansion of the record to include post-conviction proceedings pursuant to Penal Code section 105');">054.9, [3] and for evidentiary hearing.[4]

         Having carefully reviewed the parties' filings and the relevant case law and for the reasons set out below, the undersigned finds that the petition for writ of habeas corpus and all claims therein shall be denied, the motion for evidentiary development, expansion of the records, and evidentiary hearing shall be denied, and certificate of appealability shall issue only for claims 10, 11, 26(A), 5(A), 35(B), 35(C), and 35(F).

         I. BACKGROUND

         A. Overview

         Petitioner was convicted of murdering his fourth wife, Joyce Catlin, a mother of eight children (hereinafter “Joyce”), his fifth wife, Glenna Catlin, (hereinafter “Glenna”), and his adoptive mother, Martha Catlin, (hereinafter “Martha”) by poisoning them with the herbicide paraquat. Joyce's murder occurred in 1976. The murders of Glenna and Martha occurred in 1984.

         The conviction for the first-degree murder of Glenna was rendered in 1986 in Monterey County Superior Court (following a change of venue from Fresno County Superior Court) for which Petitioner was sentenced to life without parole (hereinafter “LWOP”), with judgment entered thereon. The convictions for the first-degree murders of Joyce and Martha were rendered in 1990 in Kern County Superior Court and resulted in sentences of LWOP and death respectively, with judgment entered thereon.

         This habeas corpus proceeding involves only the Kern County judgment.

         B. Procedural Posture

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to July 6, 1990 entry of judgment of the Superior Court of California, County of Kern imposing the death sentence following his conviction following jury trial in Kern County Superior Court case number 305');">0594.[5] (CT 2079.) The conviction was affirmed by the California Supreme Court on automatic appeal. People v. Catlin, 26 Cal.4th 81 (2001). The United States Supreme Court denied petitioner's writ for certiorari on April 1, 2002. Catlin v. California, 535 U.S. 976 (2002).

         Petitioner was arrested on February 14, 1985 (RT 3483-86). On December 23, 1985, Petitioner was charged by information filed in Kern County, with the 1976 murder Joyce (Penal Code § 187) and the 1984 murder of Martha Catlin (Penal Code § 187). (CT 1348-50.) It was alleged that the murder of Martha Catlin was committed for financial gain (Penal Code § 190.2(a)(1)), that the murder was intentionally committed by the administration of poison (Penal Code § 190.2(a)(19)), and that Petitioner was convicted of more than one offense of murder in that proceeding (Penal Code § 190.2(a)(3)). (Id.)

         On September 7, 1988, the information was amended to include an allegation that Petitioner had been convicted in 1986 in Monterey County of the 1984 first-degree murder of Glenna Catlin (Penal Code § 190.2(a)(2)). (CT 1777.) Count I of the amended information charged Petitioner with first-degree murder of Joyce and Count II charged petitioner with the first-degree murder of Martha. (Id.) Additionally, the amended information alleged four special circumstances in connection with Count II, i.e. (i) the murder was carried out for financial gain within the meaning of Penal Code section 190.2(a)(1); (ii) Petitioner was charged with committing more than one murder in the first or second-degree within the meaning of Penal Code section 190.2(a)(3); (iii) Petitioner intentionally killed the victim by administration of poison (i.e., the herbicide paraquat) within the meaning of Penal Code section 190.2(a)(19); and (iv) Petitioner had previously been convicted of the first-degree murder of Glenna within the meaning of Penal Code section 190.2(a)(2) and sentenced to life without parole in 1986.[6] (See 1SHCP Ex. 102 at 1159; 1SHCP Ex. 100 at 409.)

         Petitioner's Kern County trial began on April 23, 1990. Pursuant to statute, the jury was not informed of the fourth alleged special circumstance, concerning a prior murder conviction. On June 1, 1990, the jury found Petitioner guilty of murder in the first-degree on both Counts I and II and found the first three special circumstances to be true. (CT 2028-2030.) Petitioner then admitted his prior (June 16, 1986) conviction for the first-degree murder of Glenna and the jury was informed that Petitioner had stipulated to the truth of the fourth (prior murder conviction) special circumstance. (CT 2025.)

         On June 5, 1990, the penalty phase began before the same jury that heard the guilt phase. (CT 2034.)

         On June 6, 1990, the jury returned sentencing verdicts of LWOP for the murder of Joyce and death for the murder of Martha. (CT 2074-75.) The trial court then imposed those sentences. (CT 2079-2082.)

         On July 6, 1990, the trial court denied petitioner's motion for new trial and modification of death penalty verdict and entered judgment upon the jury's verdicts. (CT 2079-85.)

         In May of 1993, attorneys Horace Freedman and Jeffrey Schwartz were appointed by the California Supreme Court to represent Petitioner on direct appeal and collateral review. In March of 2000, the California Supreme Court ordered that Freedman represent Petitioner solely in the direct appeal and that Schwartz represent Petitioner solely in the habeas proceeding.

         On March 27, 1998, petitioner filed his automatic appeal with the California Supreme Court. On July 16, 2001; that court affirmed the judgment and sentence on direct appeal. People v. Catlin, 26 Cal.4th 81 (2001). On September 26, 2001, the California Supreme Court denied the petition for rehearing. Id., as modified, (2001) (unpub.).

         Petition for writ of certiorari was denied by the United States Supreme Court on April 1, 2002. Catlin v. California, 535 U.S. 976 (2002).

         On August 9, 2000, petitioner filed his first petition for writ of habeas corpus with the California Supreme Court. In re Catlin, California Supreme Court No. S090636. On September 25, 2007, the California Supreme Court summarily denied the first petition for writ of habeas corpus without issuing and order to show cause, stating that:

The petition, filed on August 9, 2000, is denied.
Each claim and subclaim, except Claim XIX, is denied on the merits.
In addition, Claims IX (to the extent it alleges error in the destruction of tissue samples) and XVI (to the extent it alleges error in the denial of petitioner's motions for severance and separate guilt and penalty phase juries) are denied on the ground they were raised and rejected on appeal (In re Harris (1993) 5 Cal.4th 813, 825; In re Waltreus (1965) 62 Cal.2d 218, 225), and Claims VI, VIII, IX (to the extent it alleges error in the loss of Bakersfield Police reports), XV and XVI (except to the extent it alleges error in the denial of petitioner's motions for severance and separate guilt and penalty phase juries) are denied on the ground that they could have been, but were not, raised on appeal (In re Harris, supra, 5 Cal.4th at p. 825, fn. 3; In re Dixon (1953) 41 Cal.2d 756, 759). Claim XIX is denied as premature without prejudice to its renewal after an execution date is set.

In re Catlin, California Supreme Court No. S090636.

         On October 5, 2007, Petitioner began these federal proceedings. On November 2, 2007, the Court appointed attorneys Lynne Coffin and Saor Stetler to represent Petitioner. The instant federal petition was filed on September 24, 2008.

         On October 24, 2008, respondent filed his answer asserting affirmative defenses, admitting certain jurisdictional and preliminary allegations, asserting procedural defenses, and denying all claims.

         On April 15, 2009, the Court ordered these proceedings held in abeyance pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005');">05), while Petitioner completed exhaustion in state court. In re Catlin, California Supreme Court No. S1737');">3793.

         On June 15, 2009, Petitioner filed his second (exhaustion) state habeas petition. On March 27, 2013, the California Supreme Court summarily denied the second petition for writ of habeas corpus without issuing and order to show cause, stating that:

The petition for writ of habeas corpus, filed on June 15, 2009, is denied.
Claim 67 is denied as premature, without prejudice to its renewal after an execution date is set.
Claims 16, 20, subclaim R of Claim 26, 32, subclaim F of Claim 35, 39, 40, 42, 47, 48, 50, 53, 57, 58 (to the extent it challenges the constitutionality of the death penalty law), 59, 62, 66, 68 and 69 are denied on the merits.
Claims 1-38, 41-46, 49, 51, 52, 54-56, 58 (except to the extent it challenges the constitutionality of the death penalty law), 60 and 61 are barred as untimely. In re Robbins (1998) 18 Cal.4th 770, 780-81.)
Claims 1, 2, 4-7, 15-20, subclaims F, P, and Q of Claim 26, 28-30, 33, subclaims D and E of Claim 35, 41, 46, 49, 51, 52, 54, 58 (except to the extent it challenges the constitutionality of the death penalty law), 60 and 61 are barred as successive, in that they could have been, but were not, raised in petitioner's prior petition for writ of habeas corpus, No. S090636. (In re Clark, 1993) 5 Cal.4th 750, 767-68.) Claims 3, 8, 10, 11, 14, 21-25, subclaims B, J, and K of Claim 26, and 38 are likewise barred as successive to the extent aspects of the claims were not raised in the prior petition. (Ibid.)
Claims 9, 12, 13, subclaims A, C, D, E, G, H, I, L, M, N, and O of Claim 26, 27, 31, 34, subclaims A, B, and C of Claim 35, 36, and 37');">37 are barred as repetitive, in that they were raised in petitioner's prior petition for writ of habeas corpus. (In re Miller (1941) 17 Cal.2d 734, 735.) Claims 3, 8, 10, 11, 14, 21-24, subclaims B, J, and K of Claim 26, and 38 are likewise barred are repetitive to the extent aspects of the claims were raised in the prior petition. (Ibid.)
Claims 8, 24, 36, 37');">37, 45, 60 and 61 are barred on the ground that they could have been, but were not, raised on appeal. (In re Dixon (1953) 41 Cal.2d 756, 759.) Except to the extent they allege ineffective assistance of counsel, and except to the extent they challenge the constitutionality of the death penalty law, claims 3, 5-7, 17-19, 21, 22, 25, 43, 46, 49, and 58 are likewise barred to the extent aspects of the claims could have been, but were not, raised on appeal. (Ibid.)
Claims 1, 2, 4, 15, 28-30, 41, 42, and 44 are barred on the ground that they were raised and rejected on appeal. (In re Waltreus (1965) 62 Cal.2d 218, 225.) Except to the extent they allege ineffective assistance of counsel, and except to the extent they challenge the constitutionality of the death penalty law, claims 3, 5-7, 17-19, 21, 22, 25, 43, 46, 49, and 58 are likewise barred to the extent aspects of the claims were raised and rejected on appeal. (Ibid.)
Claim 30 is not cognizable on habeas corpus. (In re Lindley (1947) 29 Cal.2d 709, 723.)

In re Steven David Catlin on Habeas Corpus, S1737');">3793. (Doc. No. 48.)

         On June 30, 2015, Petitioner filed his motion to expand the record and for evidentiary development and hearing. (Doc. No. 84.)

         On June 1, 2016, Respondent filed his answering brief on the merits and opposition to the motions for expansion of the record, factual development and evidentiary hearing. (Doc. No. 88.)

         On February 14, 2017, Petitioner replied to Respondent's answering brief and opposition to the noted motions. (Doc. No. 95.)

         II. STATEMENT OF FACT

         This factual summary is taken from the California Supreme Court's summary of the facts in its July 16, 2001 opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state supreme court's summary of facts is presumed correct. Petitioner does not present clear and convincing evidence to the contrary; thus, the Court adopts the factual recitations set forth by the state supreme court. Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court's decision for our summary of the facts of the crime.”).

         A. Guilt phase evidence

         1. The murder of Joyce Catlin

Joyce Catlin, defendant's fourth wife, died in Bakersfield on May 6, 1976. She had developed what appeared to be flu-like symptoms about three weeks before her death and, upon consulting a physician, was admitted to a hospital. Before admission, she complained of back pain, vomiting, and a sore throat. She was transferred to the hospital's intensive care unit the day after her admission. Her lungs appeared to be affected. Dr. Einstein, a lung specialist, treated her without success for possible viral or bacterial infection. She did not respond to various antibiotic medications. Her lungs failed to oxygenate her body sufficiently, and she required mechanical ventilation. Nineteen days after admission to the hospital, her lungs failed entirely, and she died.
An autopsy disclosed gross pulmonary fibrosis. Pathologist Dr. Bruce Swinyer, who performed the autopsy, testified that Joyce's lungs were extremely heavy and fibrotic and that there was no indication of viral or bacterial infection that could have caused death. The death certificate listed the cause of death as acute respiratory failure due to unknown microorganisms, but attending physicians suspected poisoning by paraquat, a highly toxic poison used in agriculture to control weeds. (Although several witnesses referred generally during the course of the proceedings to paraquat as a pesticide, technically it is an herbicide.)
Dr. Einstein testified that the cause of death was pulmonary fibrosis. In this condition, the lungs develop massive scarring and are unable to function to exchange oxygen and carbon dioxide. He could not identify any natural cause of this condition. He testified that in 1976, toxicological tests that could disclose the presence of paraquat more than 72 hours after administration did not exist. Tissue collected during the autopsy was preserved in formalin, which precluded later testing for the presence of paraquat. At trial, Dr. Einstein stated his opinion that Joyce died of paraquat poisoning, based in part on the opinion of Dr. Kilburn, a lung pathologist, and in part on the absence of any natural agent that could have caused her death. He also relied upon the clinical course of Joyce's symptoms and the appearance of her lungs after death.
Dr. Kilburn, a professor of medicine and expert in lung pathology, examined tissue samples sent to him in 1976 by Dr. Swinyer. He testified that Joyce's lung tissue almost was destroyed by fibrosis, that the fibrosis was caused by a chemical, and that the only chemical that could produce such fibrosis was paraquat. He explained that it could take up to 30 days or as little as 12 hours for paraquat to cause death, depending upon the dose. When he showed the slides to a visiting professor who was an expert in paraquat poisoning, the latter said that they constituted a perfect example of paraquat poisoning.
Dr. Ford, a clinical toxicologist employed by the Chevron Environmental Health Center, explained that paraquat poisoning progressed in typical stages. Initially, the patient experiences a burning sensation in the mouth, and then after about 12 hours develops symptoms such as nausea, vomiting, and diarrhea. These symptoms may persist for a few days, but by the seventh day after ingestion the patient may feel somewhat better. Some kidney impairment may follow, but normally is resolved after 14 days. The lungs become affected about a week after ingestion, and by the third week they typically are so fibrotic that they cannot function. He noted that consistent with these typical stages, Joyce experienced vomiting and other gastrological symptoms for about seven days, then developed some kidney dysfunction. As that resolved, she complained of shortness of breath, and X-rays disclosed some marking of the lungs and edema. Her lungs continued to deteriorate, and the autopsy disclosed a fibrotic condition typical of paraquat poisoning.
Dr. Stephens, then the Chief Medical Examiner of the City and County of San Francisco, reviewed Joyce's medical records and slides of her tissues. He also found the course of Joyce's symptoms consistent with paraquat poisoning, and testified that he believed she died of such poisoning.
In sum, these medical and toxicological experts gave their opinions at trial that the cause of Joyce's death was paraquat poisoning, relying in large part upon her distinctive clinical symptoms and upon tissue analysis.
The prosecution did not introduce direct evidence regarding the manner in which paraquat was administered to Joyce. There was evidence that shortly before she became ill, Joyce and defendant attended a party where she showed signs of intoxication, and that shortly thereafter she developed severe gastric symptoms, including violent vomiting. There also was evidence that shortly after her hospitalization, defendant supplied Joyce with a milkshake.
The following evidence related to defendant's potential motive for killing Joyce. Joyce had credit life insurance, which was used to pay off a $6, 741 debt on an automobile, as well as an insurance policy paying up to $2, 000 and a $5, 000 life insurance policy, the benefits of which were paid to defendant. When Joyce was in the hospital, defendant said to her sister that he thought the credit life insurance covered both the couple's house and their automobile. There also was evidence that defendant had engaged in extramarital affairs while married to Joyce, and that the couple had argued over a girlfriend of his.
Edith Ballew, who had been defendant's third wife, testified that she and others suspected shortly after Joyce's death that defendant was responsible for it.
There was evidence that access to paraquat was controlled under state law, but that defendant had access to it in 1976 and 1977 when he worked as a mechanic for a large agricultural enterprise. Several witnesses recounted defendant's statements-some statements from 20 years before trial-indicating his belief that paraquat was an effective herbicide that was extremely dangerous to human beings, that he was aware of the effect of paraquat on the lungs, that he possessed agricultural poisons he had acquired at work, and that he had shown the father of his second wife a container of a poison he said would kill anything or anybody, a poison that he believed to be ideal for use in a murder because it could not be detected and because there was no antidote. In 1975, defendant cautioned Joyce's son not to enter his garage, which contained dangerous agricultural poisons, and warned the boy regarding the danger of contact with paraquat.
2. The murder of Martha Catlin
Martha Catlin, defendant's 79-year-old mother, died in Bakersfield on December 8, 1984, after an illness lasting two or three days.
In 1982, Martha had a mild stroke. At that time, Edith Ballew contacted Martha's physician, Dr. Sproule, and suggested that Martha had been poisoned with paraquat. Dr. Sproule reported finding no sign of poisoning.
In September 1984, Martha again visited Dr. Sproule. She had not been taking her medication for hypertension, and her blood pressure was high. When she returned to the physician on October 31, 1984, she complained of poor memory and reported poor eating habits. Against medical advice, she had been drinking wine. Dr. Sproule prescribed a cough syrup with codeine at that time.
Edith Ballew visited Martha on Thursday, November 29, 1984, when Martha appeared in her usual state of health. On Thursday, December 6, 1984, however, Martha telephoned her friend Anna Stonebraker to request assistance because of a serious illness. Mrs. Stonebraker testified that Martha appeared very ill, exhibiting swollen purple lips and mouth as well as dark circles under her eyes. When Martha presented herself at Dr. Sproule's office, she had a reddish purple tongue and throat and had a temperature of 102 degrees. Dr. Sproule treated her with penicillin and asked her to return the next day. Mrs. Stonebraker was unable to care for Martha and left a message for defendant, asking his assistance, but he called back later and stated he was unable to come from his home in Fresno to Bakersfield, where Martha lived. Defendant telephoned Dr. Sproule the next day and stated that he would send someone to stay with his mother.
Mrs. Stonebraker took Martha back to Dr. Sproule on Friday, December 7, 1984. At that time Martha's throat was still sore and purplish, and she had difficulty eating. The next day at 5:30 a.m., Dr. Sproule received a call reporting that Martha appeared to be dead. He sent an ambulance, and Martha was pronounced dead on her arrival at the hospital.
Edith Ballew learned of Martha's death on Sunday, December 9, 1984, and called at Martha's home. She found defendant there, and he stated that he had been to visit that week, heard that his mother had the flu, and sent a woman to come stay with her.
An autopsy was performed, and tissue samples from Martha's lungs and kidneys were sent to a Chevron laboratory in Richmond. The toxicological report concluded that Martha had ingested a significant amount of paraquat. Dr. Ford, the clinical toxicologist whose testimony with regard to Joyce Catlin's death is described above, explained that until two or three years before trial, Chevron had been the sole distributor of paraquat in the United States. He stated it was probable that Martha had ingested diluted paraquat six or seven days before her death. Dr. Dollinger, the pathologist who performed the autopsy, concluded after receiving the toxicological report that the cause of death was paraquat poisoning.
Dr. Kilburn testified that Martha had lung damage consistent with paraquat poisoning. Dr. Kilburn reported that Martha was killed by the ingestion of paraquat, probably three to six days before her death, but that due to her frail condition, she died before the paraquat rendered her lungs highly fibrotic.
Dr. Stephens testified that, although it was possible Martha died of a heart attack, he believed her death was caused by paraquat poisoning. She had early signs of paraquat poisoning and had sufficient paraquat in her system to cause death.
In sum, toxicological evidence and clinical symptoms led prosecution medical and toxicological experts to state that their opinion beyond a reasonable doubt was that Martha had died of paraquat poisoning.
Defendant had made statements indicating a concern that his mother planned to alter her will to make the African Violet Society rather than defendant her primary beneficiary. Although defendant faithfully had visited and cared for his mother in her later years, and planned to have her move from Bakersfield to Fresno to be closer to him, he had made statements indicating that he was tired of caring for her and wished she “would hurry up and die.” In addition, there was evidence that Martha disapproved of his many divorces and remarriages. Cash withdrawn by defendant and Martha from Martha's bank account in November 1984 and intended as a down payment on a new home for her had not been used for that purpose, and apparently remained in defendant's possession. Defendant was the sole beneficiary of Martha's will.
Defendant was a weekly or biweekly visitor to Martha at the time of her death. Initially, the prosecution presented testimony of defendant's employee that defendant had been absent from work during most of the week preceding Martha's death, but the witness later concluded that he had been mistaken. The witness then reported that defendant, who lived in Fresno, left for Bakersfield either Thursday December 6, or Friday, December 7, 1984. Defendant had visited his mother on Sunday, December 2, 1984.
After defendant's arrest for the murder of his mother, a bottle of paraquat dated April 1977 was discovered in a garage or workshop used by defendant and his former father-in-law in their independent auto-related businesses. The cap of this bottle bore defendant's fingerprint.
A jailhouse informant testified that defendant solicited his assistance in intimidating Edith Ballew, defendant's third wife, who persistently had urged the authorities to investigate the charged crimes and to prosecute defendant for murder. The informant also recounted that defendant had stated: “I killed the bitches.” 3. Uncharged crime In addition to the evidence recounted above, a large volume of uncharged crime evidence was introduced indicating that defendant had murdered his fifth wife, Glenna Kaye Catlin, by administering paraquat. She died on March 14, 1984, after 22 days of hospitalization. Overwhelming evidence from clinical records and toxicological reports from tissue samples demonstrated that she had died of paraquat poisoning. There was evidence of a public argument between Glenna and defendant a few days before she began exhibiting symptoms, as well as evidence that defendant had considered their marriage to be one of convenience, that he had been unfaithful, and that Glenna had become jealous. He received $56, 785 in life insurance proceeds following her death, and there was evidence that he had displayed grief at her funeral but immediately thereafter had exhibited high spirits. There was also evidence establishing that in 1977, defendant had warned Glenna's half brother regarding the dangers of paraquat, noting in particular that it would damage the lungs.
Evidence that defendant previously had been convicted at a separate trial of the murder of Glenna was not introduced until after the jury in the present case returned its verdict on the murder charges and the special circumstance allegations other than the one alleging the prior conviction for the murder of Glenna. At that point, defendant stipulated to the prior-murder-conviction special-circumstance allegation.
4. Defense case
Defendant testified at length in his own behalf, denying that he had poisoned any of the victims. n.2 He denied making statements indicating his belief that paraquat would be an ideal poison for a murder. He denied knowingly possessing paraquat and, through his own testimony and the testimony of others, demonstrated that the area in the garage or workshop in which the paraquat was found was an area devoted to his father-in-law's automotive business. It was established that persons other than defendant and his father-in-law also had access to this garage.
n.2 Defendant's credibility was impeached with a 1966 forgery conviction.
Defendant's roommate testified that defendant had returned to his Fresno home around 8:00 or 9:00 p.m. on December 6, 1984, the night Mrs. Stonebraker telephoned to report Martha's illness. There was evidence that defendant had been in Fresno conducting business on December 3, 4, 6, and 7, 1984.
In addition, defense evidence demonstrated that defendant's home and place of business had been subjected to a thorough police search at the time of defendant's arrest and that no paraquat bottle had been discovered. The defense also presented evidence indicating that defendant's father-in-law (Glenna's father) had searched their joint workplace without finding the bottle of paraquat, but that when the police asked him to search again, he invited two boys to help him and found the bottle within a few minutes. Defendant also attempted to establish through the testimony of an expert witness that a fingerprint could have been planted on the bottle of paraquat, and pointed out the lax procedures under which the bottle had been transported to the police station and stored pending testing. A person employed at the agricultural enterprise where defendant had been employed testified that defendant had worked there only as a mechanic, and the circumstances of his employment would have made it unlikely he could have obtained paraquat on the job.
Defendant also pointed to evidence suggesting that his third wife, Edith Ballew, had been engaged in a vendetta against him, having urged the authorities to investigate each death involved in the present case as a murder. He presented witnesses who testified that he appeared to have a flourishing business and did not appear to be in need of funds.
Friends of defendant's recalled that shortly before Joyce's hospitalization, defendant had learned, upon his return from a trip to Mexico, that Joyce had fallen ill.
Dr. Bayer, a toxicologist who had some experience with paraquat poisoning, testified that he could not determine beyond a reasonable doubt that Joyce had died from paraquat poisoning. He was of the opinion that her death might be attributable to an unknown virus.
Dr. Buteau, a Chevron toxicologist, testified that Martha's medical records reflected she may have ingested as little as a tablespoon of paraquat (still a fatal dose in his opinion) and that she may have ingested it between two and seven days before her death. Dr. Russell, a pathologist at the University of California, Davis Medical School, testified that although Joyce's lung damage was consistent with paraquat poisoning, it was also possible that it was caused by agents other than paraquat. Dr. Buteau had a reasonable doubt as to the cause of Joyce's death.
Carol Johnson, a woman who had been dating defendant at the time of Martha's death (and later married and divorced him), testified that she and defendant had visited Martha on Sunday, December 2, when she and defendant brought Martha a new television set. Martha complained that she had a sore throat, her ears were bothering her, and she was taking medication for flu-like symptoms. Johnson testified that defendant was not alone with his mother that day.
After considering the evidence, the jury found defendant guilty of the first degree murders of Joyce and Martha, and found true the murder for financial gain, murder by poison, and multiple-murder special-circumstance allegations submitted to it as to the murder of Martha. As previously noted, after the jury returned its verdict, defendant stipulated to the truth of the special circumstance allegation that he previously had been convicted of the first degree murder of Glenna.
B. Penalty phase evidence
At the penalty phase of the trial, the prosecution introduced evidence establishing that in 1966, defendant assaulted his first wife in a fit of jealousy, choking her and throwing her out of the automobile in which they were travelling. Later defendant picked her up, went to obtain aspirin, and returned home.
Defendant presented the testimony of a number of members of a family he befriended who described his loyalty and helpfulness as a friend. A witness testified that defendant had saved her son's life. Defendant also presented evidence of his exceptionally positive adjustment in prison. Dr. Haney, a professor of psychology at the University of California, Santa Cruz, testified regarding the security precautions and the circumstances of confinement facing prisoners serving life sentences, and stated that such prisoners usually are compliant inmates. His review of defendant's prison record caused him to predict a smooth adjustment to such confinement. Kenneth Howard, a sergeant at the state prison where defendant was incarcerated after his conviction for the murder of Glenna, testified regarding the circumstances of confinement and reported that defendant was a model prisoner. Two supervisors at the prison testified regarding defendant's excellent work habits and positive effect on other inmates.
At the conclusion of the penalty phase, the jury returned a1 verdict of death.

People v. Catlin, 26 Cal.4th 81, 99-106 (2001) (as modified Sept. 26, 2001)).

         III. JURISDICTION

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 37');">375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).

         This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000) (overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).

         IV. STANDARDS OF REVIEW

         A. Legal Standard - Habeas Corpus

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:

(1) [R]esulted 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) [R]esulted 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); see also Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

         “[A] state has ‘adjudicated' a petitioner's constitutional claim ‘on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Brown v. Walker, No. C 09-04663 JSW, 2014 WL 4757804, at *5 (N.D. Cal. Sept. 24, 2014) (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).

         As a threshold matter, this court must “first decide what constitutes clearly established Federal law, as determined by the Supreme Court of the United States.” Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law, ” this court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words, ‘clearly 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. In addition, the Supreme Court decision must “squarely address [] the issue in th[e] case; otherwise, there is no clearly established Federal law for purposes of review under AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v. Musladin, 549 U.S. 70');">549 U.S. 70, 74 (2006).

         If no clearly established Federal law exists, the inquiry is at an end and the court must defer to the state court's decision. Carey, 549 U.S. 70');">549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760. In addition, the Supreme Court has clarified that habeas relief is unavailable in instances where a state court arguably refuses to extend a governing legal principle to a context in which the principle should have controlled. White v. Woodall, 572 U.S. 415, 425-26 (2014). The Supreme Court stated: “[I]f a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

         If the court determines there is governing clearly established Federal law, the court must then consider whether the state court's decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). “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] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. “The word ‘contrary' is commonly understood to mean ‘diametrically different,' ‘opposite in character or nature,' or ‘mutually opposed.' ” Williams, 529 U.S. at 405');">05 (quoting Webster's Third New International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id.

         “Under the ‘reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “[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; see also Lockyer, 538 U.S. at 75-76. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court's decision.” Richter, 562 U.S. at 101, citing Yarborough, 541 U.S. at 664. Therein the Supreme Court stated that

As 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 fair-minded disagreement.

Id. at 101-05');">05. In other words, so long as fair-minded jurists could disagree on the correctness of the state court's decision, the decision cannot be considered unreasonable. Id. at 98-99. In applying this standard, “a habeas court must determine what arguments or theories supported ... or could have supported the state court's decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 101-03. This objective standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d). Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637');">37 (1993).

         Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 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 objectively unreasonable. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

         The AEDPA requires considerable deference to the state courts. “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits, ” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in federal court has no bearing on 2254(d)(1) review.” Id. at 185. “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 37');">37 U.S. 322');">537');">37 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 37');">372 U.S. 293');">37');">372 U.S. 293, 319 (1963) (overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)) (superseded by status as stated in Williams v. Taylor, 529 U.S. 420 (2000)).

         If a petitioner satisfies either subsection (1) or (2) of § 2254 for a claim, then the federal court considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “[a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”); accord Frantz v. Hazey, 533 F.3d 724, 737');">37 (9th Cir. 2008).

         In this case, some of petitioner's claims and allegations were raised and rejected by the California Supreme Court on direct appeal while others were raised in his state habeas petitions to that court and summarily denied. In the case of summary denial, where the state court decision is unaccompanied by an explanation, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The Supreme Court stated that “a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. at 101-03 (emphasis added). Petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de novo review of the constitutional question, ” id., as “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).

         When reviewing the California Supreme Court's summary denial of a petition, this court must consider that the California Supreme Court's summary denial of a habeas petition on the merits reflects that court's determination that

[T]he claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief. It appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, and will also review the record of the trial ... to assess the merits of the petitioner's claims.

Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal.4th 750, 770 (1993)); see also Johnson v. Williams, 568 U.S. 289, 300-01 (2013) (holding that even where the state court does not separately discuss a federal claim there is a presumption that that state court adjudicated the federal claim on the merits); see also Richter, 562 U.S. at 99-100 (holding that “2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.”

         Accordingly, if this court finds petitioner has unarguably presented a prima facie case for relief on a claim, the state court's summary rejection of that claim would be unreasonable. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (overruled on other grounds by Garcia v. Robertson, 2019 WL 3938507 (9th Cir. Aug. 20, 2019)); see also Nunes v. Mueller, 350 F.3d 1045, 105');">054-55 (9th Cir. 2003).

         For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005');">05); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). For example, claims denied solely on procedural grounds are reviewed de novo. Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo).

         According to the Ninth Circuit:

In a habeas corpus proceeding, we do not review a question of federal law decided by a state court “if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This doctrine “applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements.” McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir.1995). If a petitioner has procedurally defaulted, we do not review the claim unless the petitioner “can establish cause and prejudice or that a miscarriage of justice would result in the absence of our review.” Moran v. McDaniel, 80 F.3d 1261, 1270 (9th Cir.1996).

Vang, 329 F.3d at 1072.

Procedural default is an affirmative defense. Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir.2003). Generally, the state must assert the procedural default as a defense to the petition before the district court; otherwise the defense is waived. Franklin v. Johnson, 290 F.3d 1223, 1229 (9th Cir.2002). However, the district court retains discretion to consider the issue sua sponte if the circumstances warrant. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998).
In Boyd, we recognized that the district court may, sua sponte, raise the issue of procedural default when the default is obvious from the face of the petition and when recognizing the default would “further the interests of comity, federalism, and judicial efficiency.” Id.

Id., at 1073.

         “A state procedural rule is “adequate” if it is “clear, consistently applied, and well-established at the time of the petitioner's purported default.” Calderon v. United States Dist. Court, 96 F.3d 1126, 1129 (9th Cir.1996).” Id.

         “A state procedural bar is “independent” if the state court explicitly invokes the procedural rule as a separate basis for its decision. McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995). For a state law ground to be “independent, ” it must not be interwoven with federal law. See La Cross v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state court's decision is not “independent” if the application of a state's default rule depends on a consideration of federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000). If the state court's decision fails “to specify which claims were barred for which reasons, ” we have held that the ambiguity serves to defeat the independence of the state procedural bar. Valerio v. Crawford, 306 F.3d 742, 775 (9th Cir. 2002).

         V. PROCEDURAL BARS

         As noted, certain of petitioner's claims or aspects thereof were denied by the California Supreme Court as procedurally barred. As to those claims, Respondent has invoked the noted independent state ground doctrine, pursuant to which a federal court will not review a question of federal law decided by a state court “if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Vang, 329 F.3d at 1069 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

         Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (citing Coleman, 501 U.S. at 750), and “prejudice” essentially requires a merits analysis, the court will proceed to the merits of claims found to be procedurally defaulted and review them de novo without determining whether the state procedural default is adequate and independent to bar relief in federal court. Id. (citing Coleman, 501 U.S. 732-35); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts empowered to reach the merits if on their face clearly not meritorious despite asserted procedural bar); Bell v. Cone, 543 U.S. 447, 451 n.3 (2005');">05) (an application for habeas corpus may be denied on the merits even if unexhausted in state court); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits where petition is clearly not meritorious despite asserted procedural bar).

         Under Martinez v. Ryan, 566 U.S. 1, (2012), the procedural default of a substantial claim of ineffective assistance of trial counsel is excused where state law requires that all claims be brought in the initial collateral review proceeding and counsel in that proceeding was ineffective. See Ramirez v. Ryan, 37');">37 F.3d 1230');">937');">37 F.3d 1230, 1241 (9th Cir. 2019). A substantial claim of claim of ineffective assistance of trial counsel is one which has “some merit.” Id., citing Martinez, 566 U.S. at 14-16. Conversely, an insubstantial claim of ineffective assistance of trial counsel “does not have any merit or [ ] is wholly without factual support.” Id.

         “Thus, to establish cause and prejudice in order to excuse the procedural default of his ineffective assistance of trial counsel claim, Ramirez must demonstrate the following: (1) post-conviction counsel performed deficiently; (2) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different, Id.; and (3) the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Ramirez, 937');">37 F.3d at 1242.

         To the extent claims already adjudicated were later denied on procedural grounds, the Court finds these claims remain ripe for federal adjudication. See e.g., Cone, 556 U.S. 449, 466-67 (2009); see also Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) (applying look through doctrine to Waltreus bars); Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (9th Cir. 1986) (applying look through doctrine to Miller bars).

         VI. PRELIMINARY MATTERS

         The court takes judicial notice of the certified record on appeal to the California Supreme Court, all documents on file in the California Supreme Court in the case of People v. Catlin, No. S016718, (Kern County Superior Court No. CR30954), and all declarations, witness statements, and records filed on petitioner's behalf in his first state habeas corpus proceeding before the California Supreme Court, In re Catlin, No. S090636 including portions of the Reporter's Transcript and Clerk's Transcript in People v. Steven D. Catlin (Monterey County Superior Court No. CR 11388) (see 1SHCP Ex.'s 100-102), and in his second state habeas corpus proceeding before the California Supreme Court, In re Steven David Catlin, No. S1737');">3793 (see Doc. No. 98).[7]

         Petitioner's request for judicial notice of the entire record in People v. Steven D. Catlin (Monterey County Superior Court No. CR 11388) and its associated appeal in the Sixth District Court of Appeal (Cal Ct. App. No. H002078, June 13, 1988) is denied because he has not demonstrated that those materials were before the state supreme court at the time it rendered its decision, or properly the subject of record expansion.[8] 28 U.S.C. § 2254(d)(2; Pinholster, 563 U.S. at 181, 185.

         VII. REVIEW OF CLAIMS[9]

         A. Claims Alleging Trial Court Error at the Guilt Phase

         1. Legal Standard

         Trial court error violates due process where it renders the resulting criminal trial fundamentally unfair. Chambers v. Mississippi, 410 U.S. 284, 294, 303 (1973).

         In evaluating a claim of instructional error, a single instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey v. Rocha, 194 F.3d 971, 976 (1999). “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction” in an unconstitutional manner. Boyde v. California, 494 U.S. 37');">370, 380 (1990).

         Additionally, a reviewing court does not engage in a technical parsing of the instruction's language, but instead approaches the instructions in the same way that the jury would -- with a “commonsense understanding of the instructions in the light of all that has taken place at the trial.” Johnson v. Texas, 509 U.S. 350, 368 (1993). Lastly, federal courts presume that juries follow instructions, including cautionary instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); see also Boyde, 494 U.S. at 381-85; Tan v. Runnels, 413 F.3d 1101, 1115 (2005');">05).

         Any error in the state court's determination of whether state law supported an instruction in this case cannot form the basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 71 (1991) (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of sta te evidentiary rules”).

         Even if constitutional instructional error has occurred, the federal court must still determine whether petitioner suffered actual prejudice, that is, whether the error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637');">37. A “substantial and injurious effect” means a “reasonable probability” that the jury would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at 916.

         2. Claims 1, 2 and 4

         Petitioner alleges the trial court erred by admitting evidence of the prior Monterey County proceeding on the death of Glenna as evidence of an uncharged crime (i.e. claim 1) committed for “financial gain” (i.e. claim 2), and instructing the jury thereon (i.e. claim 4), denying him due process, equal protection, an impartial jury, a fair trial, a reliable sentence and placing him in double jeopardy, violating his rights under the Fifth, Sixth, Eighth and Fourteenth. (Doc. No. 25 at 68-86, 95-97.)

         a. State Court Direct and Collateral Review

         i. Claim 1

         Petitioner's allegation that admission of “other crimes” evidence violated his state and federal rights to due process, equal protection, a fair trial, a reliable conviction and sentence, and freedom from double jeopardy, under the Fifth, Eighth and Fourteenth Amendments was considered on direct appeal and denied on the merits and as procedurally defaulted. Catlin, 26 Cal.4th at 119-23.

         The claim was raised in the second state habeas petition and denied on procedural grounds including raised and rejected on direct appeal (In re Waltreus).[10] (Order No. S1737');">3793.)

         ii. Claim 2

         Petitioner's allegation that admission of testimony that he gained financially from Glenna's murder violated his Fifth (double jeopardy) and Eighth (reliable sentence) rights was considered on direct appeal and denied on the merits. Catlin, 26 Cal.4th at 123-28.

         The claim was raised in the second state habeas petition and denied on procedural grounds including raised and rejected on direct appeal (In re Waltreus). (Order No. S1737');">3793.)

         iii. Claim 4

         Petitioner's allegation that the jury instructions regarding the uncharged crime evidence denied him due process, an impartial jury and a reliable conviction and sentence pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments was considered on direct appeal and denied on the merits. Catlin, 26 Cal.4th at 144-47.

         The claim was raised in the second state habeas petition and denied on procedural grounds including raised and rejected on direct appeal (In re Waltreus). Order No. S1737');">3793.

         b. Analysis

         i. Admission of Uncharged Crime Evidence

         Petitioner argues the Kern County trial court, over defense objection (RT 37');">37-39, 49-56; CT 1892-99) errantly admitted subject to proper foundation evidence from the Monterey proceeding concerning the death of Glenna as other crimes evidence, finding it probative. (Id.) He argues his federal constitutional claims were not addressed on the merits by the California Supreme Court and that factfinding by that court was unreasonable and that rejection of the claim by that court should be reviewed de novo by this Court. (See e.g., Doc. No. 95 at 98.)

         Petitioner's arguments are discussed separately, below.

         (1) Paraquat Poisoning

         Petitioner argues that even though the Kern County jury was not formally informed prior to its guilt phase verdict of Petitioner's conviction in Monterey County for the first-degree murder of Glenna (as required by Penal Code § 190.1(a)); (see RT 5352-54), the other crimes evidence that had been admitted suggested Petitioner poisoned Joyce with paraquat just as he poisoned Glenna (RT 37');">37, 49; CT 1883) prejudicially confusing and distracting the jury with improper criminal propensity evidence. (See Doc. No. 25 at 68 citing Smith v. Massachusetts, 543 U.S. 462 (2005');">05); Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir. 2007).

         He notes that prosecution experts in the Monterey proceeding, Drs. Kilburn and Stephens, testified there that paraquat was one of a number of possible causes of Joyce's death (RT 4033-36 [Dr. Kilburn]; RT 37');">3765 [Dr. Stephens]). Petitioner suggests that admission of the evidence impermissibly lessened the prosecution's burden of proving the charged offenses.

         The state supreme court denied the allegations on direct appeal, stating that:

Defendant contends the court erred in permitting the prosecution to introduce evidence regarding the murder of Glenna. As noted, defendant's prior conviction for this crime was not admitted until after the jury reached its guilty verdict (see § 190.1, subds. (a) & (b) [trial of a special circumstance allegation that the defendant has suffered a prior murder conviction shall be held only after the jury has reached a guilty verdict and made findings on any other special circumstance allegation]), but evidence regarding the murder of Glenna was admitted as evidence of an uncharged crime made admissible by Evidence Code section 1101. Defendant, however, contends that the murder of Glenna did not bear common marks with the charged murders of Joyce and Martha. He contends the evidence relating to Glenna was not material to the issue of identity and did not tend to establish a common scheme or plan.
Before trial, the prosecutor moved to admit evidence that defendant had murdered Glenna by administering paraquat. The prosecutor contended this evidence tended to demonstrate that Martha and Joyce were poisoned by a criminal agency, that this criminal agency was paraquat, and that defendant was the person responsible for the murders. Defendant objected on the basis of Evidence Code section 1101, subdivision (b). The trial court announced that it would review the preliminary hearing transcript and the transcript of the hearing held on a motion pursuant to section 995. The following day, defense counsel urged that the evidence concerning Glenna was weak, did not establish beyond a reasonable doubt defendant's responsibility for her murder, had little probative value in the present trial, but would have considerable prejudicial impact. The court ruled that the evidence was probative and could be admitted.
We review the trial court's determination for an abuse of discretion, examining the evidence in the light most favorable to the court's ruling. (People v. Kipp, supra, 18 Cal.4th at pp. 369, 37');">370.)
We have observed above that, despite the prohibition against admitting evidence of an uncharged crime to demonstrate a defendant's criminal propensity, such evidence is admissible to show identity or the existence of a common scheme or plan. (People v. Kipp, supra, 18 Cal.4th at p. 369.) This type of evidence, when offered on the issue of identity, “must be highly similar to the charged offenses.” (Ibid.) Evidence tending to establish a common plan or design should demonstrate “ 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
In the present case, the charged and uncharged crimes bore a number of highly distinctive common marks. As we already have discussed in connection with defendant's severance claim, each victim was a close female relative of the defendant-wife or mother. In each instance, the defendant stood to gain financially from the victim's death. In the case of Glenna and Martha, it was overwhelmingly established that the victims had ingested paraquat before death. Expert opinion evidence based on observations regarding the clinical course of each woman's illness established that the cause of death for all three victims was paraquat poisoning. Such poisoning is rare and is unlikely to be the cause of death for three persons closely related to one individual. Rather, the occurrence of three similar poisonings of related persons supports inferences regarding identity and a common plan. (See People v. Diaz, supra, 3 Cal.4th at pp. 561-562 [multiple lidocaine poisonings]; People v. Ruiz, supra, 44 Cal.3d at pp. 605');">05-606 [repeated disappearances of the wives of the defendant]; People v. Archerd, supra, 3 Cal.3d at pp. 621, 638 [multiple insulin poisonings of relatives of defendant].) The murders of Glenna and Joyce bore other common marks-in each case the victim was the defendant's wife, each woman was healthy, then initially suffered flu-like symptoms, followed by respiratory collapse over a period of days. Evidence that defendant had poisoned one wife was relevant to establish that another apparently healthy wife had died through a criminal agency, namely poison. (See People v. Ruiz, supra, 44 Cal.3d at p. 606.)6 The trial court did not abuse its discretion in determining that the evidence of the uncharged crime was relevant to identity and to show a common scheme or plan.
n.6 Defendant improperly refers to statements of the trial court in the Monterey County prosecution that led to his conviction for the murder of Glenna. We denied defendant's request to augment the record on appeal to include the transcript of the Monterey County trial, and that transcript is not part of the record on appeal in the present case.
Defendant complains that evidence establishing that Glenna died by paraquat poisoning should not have been introduced to show that Joyce died of the same cause. He contends that toxicological evidence existed to demonstrate that paraquat was the cause of Glenna's death, but that there was no toxicological evidence supporting the opinions of the prosecution's expert witnesses who had concluded that Joyce died of paraquat poisoning. In fact, he complains, the expert opinion evidence pertaining to Joyce was based not solely upon clinical observations regarding the course of her illness but also in part upon the evidence demonstrating that Glenna and Martha had died by paraquat poisoning. He accuses the prosecution of creating the common marks between the killing of Glenna and Joyce, rather than relying upon existing features in common between the two killings.
As we have observed, the common marks between the murders of Glenna, Martha, and Joyce certainly were relevant to establish that all three died pursuant to a common design. It was not necessary that the prosecution be able to prove that Joyce died of paraquat poisoning by evidence entirely independent of the evidence relating to the murder of Glenna.7 And, of course, the evidence relating to the uncharged murder of Glenna was not the only evidence tending to show the cause of Joyce's death. Evidence relating to the charge that defendant killed his mother Martha by paraquat poisoning had the same effect vis-a-vis the murder of Joyce. Strong expert opinion testimony based on clinical evidence and postmortem examination of tissue also supported the conclusion that Joyce died of paraquat poisoning.
n.7 Defendant emphasizes that the information charging that he murdered Joyce did not include an allegation that the murder was committed by means of poison. We do not believe that this circumstance strengthens defendant's claim that the evidence pertaining to Glenna was not relevant to show identity or a common scheme or plan. As noted, the murder of Glenna was relevant to show a criminal agency in the death of Joyce, and to support an inference as to the identity of her murderer.
Defendant makes a related claim that the evidence of the uncharged crime was more prejudicial than probative. He contends the evidence that was related to Glenna was unduly prejudicial, because the jury necessarily would realize that defendant had suffered a prior conviction for murder.
Evidence of an uncharged crime may be admitted only if its substantial probative value is not outweighed by a danger of undue prejudice, of confusion of the issues, or of misleading the jury. “On appeal, a trial court's resolution of these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion when its ruling 'falls outside the bounds of reason.'” (People v. Kipp, supra, 18 Cal.4th at p. 37');">371.)
The jury was not informed that defendant had suffered a conviction for the murder of Glenna until after it had returned its guilty verdict. Clearly, evidence regarding the circumstances of the murder of Glenna was of substantial probative value. In ruling upon the motion to admit evidence of Glenna's murder, the trial court reasonably could conclude that the probative value of the evidence outweighed the risk that the jury might suspect that defendant had been convicted of the murder of Glenna, despite the procedural protection provided by section 190.1. As respondent claims, the prospect of undue prejudice arising from a suspicion regarding a prior conviction was speculative, because the prosecutor did not plan to offer evidence of the conviction until after the guilty verdict. When at trial, as defendant now complains, an expert witness undergoing defense cross-examination referred to his testimony in a “prior trial, ” defendant did not object or seek an admonition to the jury, and that prior testimony, of course, was not before the trial court when it ruled on the motion pursuant to Evidence Code section 1101.
Defendant claims that the trial court erred prejudicially in failing to place on the record the process by which it concluded that the probative value of the evidence outweighed its prejudicial impact, but such explanations are not required. (People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396');">94 Cal.Rptr.2d 396, 996 P.2d 46].) In any event, it is clear that the court carefully considered lengthy transcripts, written motions, and the arguments of counsel in reaching its conclusion, taking the matter under submission for a day in order to complete its review.
Defendant's contention that the admission of the other-crimes evidence violated his state and federal constitutional right to a fair trial is waived because it was not raised below. (People v. Carpenter (1997) 15 Cal.4th 312, 385 [63 Cal.Rptr.2d 1');">63 Cal.Rptr.2d 1, 935 P.2d 708].)8 In addition, he does not provide authority establishing that a state law permitting the admission of evidence of uncharged crimes violates a defendant's right to a fair trial. Reference to two federal cases discussing due process limitations on the admission of irrelevant character or criminal propensity evidence is unpersuasive; in both instances, the federal court determined that the disputed evidence was not material to any legitimate issue. (See Henry v. Estelle (9th Cir. 1994) 37');">37');">33 F.3d 1037');">37, 1042, revd. on another point in Duncan v. Henry (1995) 513 U.S. 364');">513 U.S. 364 [115 S.Ct. 887, 130 L.Ed.2d 865]; McKinney v. Rees (9th Cir. 1993) 37');">378');">993 F.2d 137');">378, 1382-1385; see also People v. Falsetta (1999) 21 Cal.4th 903, 913-914 [89 Cal.Rptr.2d 847, 986 P.2d 182].) By contrast, we have determined that the disputed evidence in the present case was material to issues of identity and common scheme or plan and was admissible under Evidence Code section 1101.
n.8 Defendant also claims perfunctorily that the admission of this evidence violated his right under the state and federal Constitutions to a reliable guilt and penalty determination. This claim, too, is waived and in any event is without merit. (See People v. Jenkins, supra, 22 Cal.4th at p. 1044.)

Catlin, 26 Cal.4th at 119-23.

         The state supreme court reasonably denied these allegations for the reasons stated by that court and the claim otherwise lacks merit upon de novo review, as discussed below. As noted by that court, under state law, while “other crimes” evidence “is inadmissible when offered to prove [a person's] conduct on a specified occasion” (Doc. No. 25 at 70, citing Evid. Code. § 1101(a)), “evidence that a person committed crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident)” is not prohibited (id., citing Evid. Code § 1101(b)). The state supreme court, given the record before it reasonably could find the probative value of “other crimes” evidence outweighed inherent prejudice as argued by Petitioner. (See Doc. No. 25 at 97 citing Evid. Code § 1101.)

         Particularly, that court reasonably could find Petitioner failed to demonstrate on the record the jurors were confused and distracted the evidence (see Doc. No. 25 at 69), or that the prosecutor improperly used the evidence to show a propensity to commit the charged crimes. (See id., 69-70, citing Evid. Code § 1101(a)). Petitioner's speculates the prosecutor's presentation and argument of the “other crimes” evidence at the beginning and end of the state's case in the Kern County trial prejudiced the jury's determination of the cause of death of Joyce and Martha (Doc. No. 25 at 74-75) but fails to show how this admissible evidence resulted in an unfair proceeding.

         The state supreme court reasonably could find the extensive and disparate expert opinion evidence, otherwise admissible, presented a question of persuasive weight for the jury rather than raising an inference of prejudice. Petitioner points out that while in 1976, Dr. Kilburn was unable to form an opinion whether paraquat was the cause of Joyce's death (RT 4034-35), at the 1990 Kern County trial, with the benefit of information that “came out in a previous [Monterey County] trial for the death of Glenna” and other information received in the investigation of the deaths of Glenna and Martha, Dr. Kilburn testified that paraquat was the “most likely” cause of Joyce's death. (RT 4037');">37.) He observes that similarly, Dr. Stephens opinion of cause of Joyce's death was influenced by the “investigative and clinical course” as well as microscopic findings. (RT 37');">3765.) While Dr. Stephens concluded Joyce died of paraquat poisoning (RT 37');">3765-37');">3771), he testified on cross-examination that if he only had the “the microscopic slides on Joyce, [he] . . . would have to consider a viral infection” as the cause of death. (RT 3823, 3810.) However, the state supreme court reasonably could find such matters went to weight rather than admissibility.

         The state supreme court reasonably could find Petitioner failed to show constitutional error arising from what he characterizes as cumulative evidence relating to the Glenna and Martha homicides bootstrapping otherwise insufficient evidence that Joyce died from paraquat poisoning. (See Doc. No. 25 at 74; citing 1SHCP Ex. 102 at 112, 181, 184, 189-95, 1161.) He points out the autopsy following Joyce's 1976 death found no trace of paraquat in her tissues or evidence of foul play (RT 3217, 3452-58); Count I of the amended information did not allege that Joyce had been killed by the administration of poison (see CT 1395-96); and there was no direct tissue analysis evidence showing Joyce died from paraquat poisoning (see Doc. No. 25 at 70 n.38 citing Evid. Code §352; see also Doc. No. 25 at 73-74 citing 1SHCP Ex. 102 at 181).

         However, the argument reasonably could be seen as unavailing for the reasons stated above by the state supreme court in finding the trial court did not err in admitting the “other crimes” evidence. Petitioner does not demonstrate the evidence was inadmissible to the extent it may have been probative of only circumstantial evidence. (See Doc. No. 25 at 77.)

         Furthermore, Petitioner's argument the “other crimes” evidence allowed the Kern County jury to conclude petitioner had been convicted of Glenna's murder during the guilt phase, contrary to Penal Code section 190.1(a), was reasonably rejected by the state supreme court.[11] The jury presumably understood and followed their instructions as to the criminal counts and evidence before them during guilt deliberations, which did not include the prior conviction. (CT 1926.)

         Notably, this is not a case like McKinney v. Rees, 993 F.2d 137');">378, 1386 (9th Cir. 1993), relied upon by Petitioner. (See Doc. No.95 at 98.) The McKinney court found prejudice under Brecht “because of the lack of a weighty case against McKinney, and pervasiveness of the erroneously admitted evidence throughout the trial, we think it highly probable that the error had substantial and injurious effect or influence in determining the jury's verdict.” McKinney, 993 F.2d at 1386. Such is not the case here, for the reasons stated.

         State law error, if any there be, is not alone a basis for relief. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988), (2) Financial Gain

         Petitioner faults the trial court for admission of evidence regarding financial gain in connection with the murder of Glenna Catlin, evidence relating to a special circumstance allegation that was dismissed by the Monterey trial court. (See Doc. No. 25 at 78, citing RT 3511-14, 1SHCP Ex. 102 at 840-44.) He states that the trial court in the Kern County proceeding admitted evidence of Petitioner's alleged financial gain motive in Glenna's murder, that he had received over $112, 000 in death benefits. (See 1SHCP Ex. 102 at 548-53; RT 3514-19, 405');">054-55.) He argues this financial gain evidence suggested to the jury that Petitioner had the same motive in the Joyce and Martha homicides. (Doc. No. 25 at 79.) He argues his rights to due process, a reliable sentence, and freedom from double jeopardy were violated thereby.

         The states supreme court denied the allegation, stating that:

Defendant contends that evidence that he received life insurance proceeds after Glenna died should have been excluded under the collateral estoppel doctrine. He claims violations of the federal constitutional protection against being placed twice in jeopardy and of his federal constitutional right to a fair trial and a reliable verdict.
At trial, defendant made an in limine motion to exclude evidence regarding the payment defendant had received as the beneficiary of Glenna's life insurance policy. He contended the evidence should be excluded under the doctrine of collateral estoppel because, on motion of the defense pursuant to section 1118.1, the court entered a not true finding as to the special circumstance alleging murder for financial gain. In support, he offered one page fr om the clerk's transcript of that trial-a minute order indicating the granting of the section 1118.1 motion as to that special circumstance allegation. The trial court in the present case determined that although the trial court in the Monterey County trial had found the evidence presented in that trial insufficient to support a true finding that the murder of Glenna had been undertaken for financial gain, that ruling did not preclude the introduction of evidence relating to defendant's motive for killing Glenna in the separate trial for the murders of Joyce and Martha.
Under the collateral estoppel doctrine, which is a component of the Fifth Amendment's double jeopardy clause (People v. Santamaria (1994) 8 Cal.4th 903, 912, fn. 3 [35 Cal.Rptr.2d 624');">35 Cal.Rptr.2d 624, 884 P.2d 81]), “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Ashe v. Swenson (1970) 397 U.S. 436, 443 [90 S.Ct. 1189');">90 S.Ct. 1189, 1194, 25 L.Ed.2d 469].) In the present case, however, defendant was not on trial for the murder of Glenna, and the question whether defendant murdered her for financial gain within the meaning of section 190.2, subdivision (a)(1), was not an issue of ultimate fact to be determined in the present proceeding.
We observe that the collateral estoppel doctrine does not prohibit the admission of evidence that has been introduced in a trial resulting in an acquittal from being admitted for all purposes at a subsequent proceeding. As the United States Supreme Court declared in Dowling v. United States (1990) 493 U.S. 342, 348 [110 S.Ct. 668');">110 S.Ct. 668, 672, 107 L.Ed.2d 708], the doctrine does not “exclude in all circumstances ... relevant and probative evidence that is otherwise admissible ... simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” The Dowling case is instructive because, like the present case, it involved evidence of uncharged crimes. The defendant in Dowling had been acquitted of burglary and attempted robbery, but evidence relating to those charges nonetheless was introduced against him in a subsequent prosecution for a different robbery. The evidence of the uncharged crime was relevant to establish the defendant's modus operandi. Introduction of such evidence did not violate the collateral estoppel doctrine, because “the prior acquittal did not determine an ultimate issue in the present case.” (Id. at p. 348 [110 S.Ct. at p. 672].) Because in the subsequent trial the prosecution was not required to establish beyond a reasonable doubt the defendant's identity as the robber in the uncharged crime involved in the prior trial, collateral estoppel principles did not bar introduction of that evidence in the subsequent unrelated trial.
Also instructive is this court's decision in People v. Santamaria, supra, 8 Cal.4th 903. In that case we determined that (assuming the doctrine of collateral estoppel applied to retrial of the same case) a prior not true finding on an allegation that a defendant had used a knife in connection with a murder did not, at a subsequent retrial for the murder, bar evidence establishing the defendant's use of the knife. We explained: “[T]he jury's not true finding on the enhancement allegation does not mean defendant did not use the knife, only that there was a reasonable doubt that he did. In Ashe [v. Swenson, supra, 397 U.S. 436], the verdict, viewed realistically, showed the jury had a reasonable doubt as to the defendant's identity as the robber. That doubt necessarily precluded conviction of the robbery charge. But the same doubt as to the knife use did not preclude a murder conviction here, although it did mandate a not true enhancement finding. [¶] Evidence that defendant personally used a knife was highly relevant to show that he was guilty of murder as that offense is defined by statute. That evidence, together with the evidence that if he did not use a knife, he was guilty as the aider and abettor, combined to permit the murder conviction. But the specific fact of personal use does not have to be proved beyond a reasonable doubt to find defendant guilty of murder. Hence, personal use is not an 'ultimate fact' of murder.” (People v. Santamaria, supra, 8 Cal.4th at p. 922, italics omitted.)
Examining the same case, the Ninth Circuit Court of Appeals agreed: “In this case, the State failed to prove beyond a reasonable doubt the ultimate fact that Santamaria used a knife for the weapon enhancement in the first trial. However, to convict him of murder under California law, the State is not required to prove beyond a reasonable doubt that Santamaria used a knife. [Citation.] Therefore, the use of a knife is not an ultimate fact for the retrial, and the State cannot be precluded from presenting evidence that Santamaria stabbed the victim.” (Santamaria v. Horsely (9th Cir. 1998) 133 F.3d 1242, 1247; see also People v. Memro (1995) 11 Cal.4th 786, 821-822 [12 Cal.4th 783d');">12 Cal.4th 783d, 47 Cal.Rptr.2d 219, 05');">05 P.2d 1305');">905');">05 P.2d 1305] [the trier of fact's finding at a prior trial that a felony-murder special circumstance was not true did not collaterally estop the retrial of the murder charge on a felony-murder theory].) As with the not true finding on the knife-use allegation in Santamaria, and the felony-murder allegation in Memro, the not true finding on the murder for financial gain special-circumstance allegation in the trial for Glenna's murder merely established that the state in the prior proceeding had been unable to prove beyond a reasonable doubt that defendant had murdered Glenna for financial gain as charged in the murder for financial gain special circumstance. In the present case, however, the prosecution was not required to establish that fact beyond a reasonable doubt or, indeed, to prove it at all.
Defendant claims that special circumstance allegations necessarily are part of the prosecutor's burden of proof in a capital case, unlike the personal use of a knife in a prosecution for murder. He contends that “determination of a special circumstance is an ultimate fact” and that the financial-gain special-circumstance allegation relating to the murder of Glenna could not be relitigated. His contention is unpersuasive, because although the financial-gain special-circumstance allegation formed part of the prosecutor's burden of proof in the trial for the murder of Glenna, there was no special circumstance allegation in the present case that defendant had murdered Glenna for financial gain. Such an allegation relating to the murder of Glenna was not charged and was not part of the prosecutor's burden of proof at the guilt phase in the present case and, indeed, it was not being relitigated at all in this proceeding.
Defendant relies upon Bullington v. Missouri (1981) 451 U.S. 430');">451 U.S. 430 [101 S.Ct. 1852, 68 L.Ed.2d 270] in support of his claim that once a special circumstance allegation is found not true, it may not be retried.
The court in Bullington determined on double jeopardy grounds that the prosecution could not seek the death penalty on retrial of a case in which the jury originally had imposed a life sentence. Under Missouri law, the prosecution was required to prove certain facts beyond a reasonable doubt at the penalty hearing, and the jury's penalty determination had “the hallmarks of the trial on guilt or innocence.” (Bullington v. Missouri, supra, 451 U.S. at p. 439 [101 S.Ct. at p. 1858].) Accordingly, the defendant could not be subject to retrial as to penalty after the trial court granted his motion for new trial on the basis of guilt phase error.
The Bullington case does not assist defendant's present claim, because the court in that case did not determine that in a trial for different capital crimes, evidence regarding a crime of which the defendant was convicted but for which the death penalty was not imposed could not be admitted. The case merely established that factual findings favorable to the defendant made at the penalty phase of a capital trial barred retrying the penalty determination in that case. The Bullington case does not stand for the proposition that evidence relevant to a special circumstance allegation that was found not true-and also relevant to the underlying murder, of which a defendant was convicted-cannot be admitted for the purpose of establishing guilt of different crimes in a separate trial.9
n.9 Contrary to defendant's claim, this evidence was not made inadmissible by section 1118.2, which provides: “A judgment of acquittal entered pursuant to the provisions of Section 1118 or 1118.1 shall not be appealable and is a bar to any other prosecution for the same offense.” Defendant was not being prosecuted for the murder of Glenna, and no appeal of the not true finding on the financial gain special circumstance was attempted.
Defendant maintains, however, that it was “inherently unfair” to admit evidence of financial gain related to the murder of Glenna after the not true finding on the financial-gain special-circumstance allegation in the trial for Glenna's murder. He continues: “Although, technically appellant was not being tried a second time for Glenna's murder, the introduction of the Glenna financial gain evidence had that effect. The prosecution's sole purpose for introducing financial gain evidence from appellant's Monterey County trial [involving Glenna's murder] into appellant's Kern County case was to support the prosecution's theory that Joyce was murdered, rather than died of natural causes, and that the financial gain special circumstance charged in Count II, Martha's homicide, was true.” Defendant's own argument rebuts the claim that the introduction of evidence of financial gain constituted a retrial of the charge involving the murder of Glenna. The evidence was admitted to establish facts regarding the murders of Joyce and Martha, not to relitigate defendant's responsibility for murdering Glenna for the purpose of financial gain. Defendant claims that when, in the present case, the jury learned that defendant had received a sentence of life without possibility of parole for Glenna's murder, they decided to punish him more severely. This claim is speculative and is unrelated to defendant's claim that the evidence at the trial for Glenna's murder should have been excluded at the guilt phase. We observe additionally that this argument was not raised below as a basis for excluding the evidence at the guilt phase, and is waived on appeal. (See People v. Ashmus, supra, 54 Cal.3d at p. 973, fn. 10.)
Defendant objects to the manner in which the prosecutor employed evidence of defendant's financial motivation to kill Glenna. Defendant refers to the prosecutor's use of this evidence to support the claim that defendant also murdered Joyce and Martha in part for financial reasons. Defendant contends that the evidence was irrelevant to the charge that defendant murdered Joyce, because no financial gain special circumstance was alleged as to her. This claim is not persuasive, because evidence of defendant's motive for killing Joyce was relevant to the charge that defendant had murdered her, even without a financial gain special circumstance. He makes the additional claim that the evidence regarding defendant's receipt of life insurance proceeds on Glenna's death “lent undue weight” to the “weak” evidence that defendant killed Martha for financial gain. Defendant's claim goes to the weight, and not to the admissibility, of the evidence. As long as the evidence properly was admitted, as we have determined it was, the weight to be accorded the evidence was for the jury to decide.
Defendant also notes that the jury was not instructed at the guilt phase of the present case that the financial-gain special-circumstance allegation in the trial for Glenna's murder had been found not true. Defendant did not request such an instruction and, indeed, made every effort not to disclose to the jury that he had been tried for Glenna's murder. An instruction that the special circumstance allegation that he had murdered Glenna for financial gain had been found not true could give rise to an inference that, despite the not true finding on the special circumstance allegation, he previously had been tried and convicted of the murder of Glenna. Because of the potential for prejudice arising from the instruction which defendant now claims should have been given, no sua sponte duty to give such an instruction should be imposed. (See § 190.1, subd. (b) [providing for trial of a prior murder conviction special-circumstance allegation only after a guilty verdict has been reached on the charged crimes].)
Defendant claims that as part of the guaranty against cruel and unusual punishment provided by the Eighth Amendment of the United States Constitution, any evidence is unreliable that relates to a crime as to which the defendant has been acquitted. He cites in support Beck v. Alabama (1980) 447 U.S. 625');">447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392]. That opinion does not support his claim. In Beck, the high court disapproved a state rule limited to capital cases, that prohibited the fact finder from considering a lesser included offense within the capital charge, thereby forcing an all-or-nothing choice between the death penalty and acquittal. (Id. at p. 637');">37 [100 S.Ct. at pp. 2389-2390]; see also People v. Waidla, supra, 22 Cal.4th at p. 736, fn. 15; People v. Breverman (1998) 19 Cal.4th 142, 166-167 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) Although the high court in that case observed that it has “invalidated procedural rules that tended to diminish the reliability of the sentencing determination” and of the guilt determination (Beck v. Alabama, supra, 447 U.S. at p. 638 [100 S.Ct. at p. 2390]), defendant has not produced any authority suggesting that otherwise admissible evidence relating to an allegation found not true necessarily must be excluded as unreliable at the guilt phase of a capital trial for a different crime. (See People v. Jenkins, supra, 22 Cal.4th at p. 1044 [discussing the scope of the reliability requirement under the Eighth Amendment of the United States Constitution].)

Catlin, 26 Cal.4th at 123-28.

         The state supreme court reasonably rejected the allegation and the claim otherwise lacks merit upon de novo review. For the reasons stated by that court and those discussed below, Petitioner was not twice placed in jeopardy as he alleges.

         Petitioner argues that the uncharged crimes evidence was unreliable and biased the jury toward death (Doc. No. 25 at 82, citing Beck v. Alabama, 447 U.S. 625');">447 U.S. 625, 637');">37-38 at n.13 (1980)); and that presentation of this evidence in the Kern County proceeding was barred by collateral estoppel as incorporated into the double jeopardy clause. (Doc. No. 25 at 80.) He argues the prosecution used this evidence to circumstantially support its case that Joyce was murdered for money (rather than died of natural causes) (see e.g., RT 5296-97); the financial gain special circumstance charged in Martha's homicide was true (See Doc. No. 25 at 84 citing RT 37');">37-38, 49, 50, 55-56, 5196-99, 5290-97; CT 1882); and to argue in aggravation at the sentencing phase that Petitioner killed for money (Doc. No. 25 at 84-85 citing RT 5488).

         Petitioner argues the Kern County court denied him due process and placed him in double jeopardy by relitigating a special circumstance allegation as to Martha (i.e., murder for financial gain) after the Monterey County court had acquitted Petitioner of the allegation. (Doc. No. 25 at 81, citing Bullington v. Missouri, 451 U.S. 430');">451 U.S. 430, 444-45 (1981) (special circumstance allegations shall be determined by the trier of fact on the evidence presented).

         The record reflects the Monterey County trial court granted a defense in limine motion for acquittal on the financial gain special circumstance under Penal Code section 1118.1 and that issue did not reach the jury and was not subject of jury's findings embodied in the final Monterey County judgment. (See RT 3511-14; 1SHCP Ex. 102 at 840-44.)

         Here, Petitioner has not pointed to clearly established Supreme Court law precedent that admission of uncharged crimes evidence violates double jeopardy or equal protection rights. Nor has he demonstrated that he was twice put in jeopardy for the same offense. (CT 1777-79.) Petitioner acknowledges he was not retried in Kern County for Glenna's murder, but argues the introduction of the financial gain evidence was so unfair that it had the effect of a retrial. (Doc. No. 25 at 82.)

         The state supreme court reasonably could find Petitioner merely surmises the Kern County jury likely used the Monterey County evidence to effectively modify the conviction and LWOP sentence he received in Monterey County and punish him more severely through the Kern County conviction and sentence. (Id.) It remains that Petitioner was not retried in Kern County for Glenna's killing. The state supreme court reasonably could find the other uncharged crimes evidence was properly admitted in the Kern County proceeding, for the reasons stated by that court. Catlin, 26 Cal.4th 124 citing Dowling v. United States, 493 U.S. 342, 348 (1990) (evidence relating to an acquittal is not excluded for all purposes under collateral estoppel doctrine).

         Petitioner's related argument the Monterey other crimes evidence of acquittal on the financial gain special circumstance went to an ultimate issue in the Kern County proceeding and should have been precluded under collateral estoppel document, reasonably is unpersuasive, for the reasons stated. The murder of Glenna was not a charged offense in Kern County. Petitioner cannot rely upon Ashe in this regard. In Ashe, collateral estoppel applied where defendant was acquitted in the first trial and to have convicted him in the second trial would have required the second jury reach a directly contrary conclusion. See Dowling, 493 U.S. at 348, citing Ashe, 397 U.S. at 445. Petitioner reasonably has not demonstrated that was the case here, for the reasons stated. (See e.g. Doc. No. 25 at 84 n.52.) Petitioner has not demonstrated the Ninth Circuit's holding in Santamaria v. Horsely is authority otherwise or dictates a difference result. 133 F.3d 1242 (9th Cir. 1998). To the extant Santamaria is authority that an acquittal is an acknowledgment the government failed to prove the essential elements of the offense beyond a reasonable doubt, 133 F.3d at 1246, it is of no assistance to Petitioner, for the reasons stated.

         Petitioner's further suggestion the Monterey County finding of insufficient evidence to support the financial gain special circumstance precludes the prosecution's introduction of such evidence in the Kern County proceeding to argue the same theory of relevance (see Doc. No. 95 100-101), is unsupported by clearly established Supreme Court authority.

         At bottom, whether Petitioner killed Glenna for financial gain was not an ultimate issue in the Kern County proceeding. See Dowling, 493 U.S. at 348. Petitioner does not properly invoke and satisfy either double jeopardy or collateral estoppel doctrine. Whether he killed Glenna for financial gain was not an ultimate issue in the Kern County proceeding. The allegation thus fails even if recast as a due process violation. See Sattazahn v. Pennsylvania, 37');">37 U.S. 101');">537');">37 U.S. 101, 116 (2003) (due process claim fails where merely a double-jeopardy claim in different clothing).

         ii. Jury Instruction on Uncharged Crime Evidence

         Petitioner alleges the trial court improperly instructed the jury with a modified version of CALJIC 2.50 that allowed the uncharged crime evidence to be considered in determining cause of death for Joyce and Martha, denying him a fair trial, an impartial jury, and a reliable conviction and sentence. He argues the erroneous instruction lessened the prosecution burden of proof. (Doc. No. 95 at 105');">05.)

         The state supreme court rejected the allegation on direct appeal, stating that:

Defendant contends the court erred in instructing the jury that it could consider other-crimes evidence in determining the cause of death in the charged crimes, particularly with respect to the murder of Joyce.
The trial court instructed the jury, regarding their evaluation of other-crimes evidence, according to a modified version of CALJIC No. 2.50. Over defense objection, the trial court granted the prosecutor's request that the instruction be modified to state that other-crimes evidence may be considered not only for the purpose of establishing the identity of the person responsible for the charged offenses, but also for the purpose of determining the cause of death of the victims in the charged offenses.16
n.16 The court instructed the jury: “Evidence has been introduced for the purpose of showing that the Defendant committed ... crimes other than [those] for which he is on trial. Such evidence, if believed, was not received and may not be considered by you to prove that Defendant is a person of bad character or that he has a disposition to commit crimes. [¶] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show the cause of death of the victims in the crimes, if any[, ] of which the Defendant is accused, the identity of the person who committed the crimes, if any[, ] of which the Defendant is accused[.] For the limited purpose of which you may consider such evidence you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose.”
Defendant contends that he was “convicted of a capital offense on evidence which would not satisfy the reasonable doubt standard.” In support, he claims that uncharged crimes evidence that he killed Glenna improperly was admitted in the present case. We already have determined that the evidence properly was admitted.
Defendant also contends that the court violated his right to a fair trial and to a reliable penalty determination by giving the modified version of CALJIC No. 2.50, because the modified instruction “lessened the prosecution's burden of proof on the crucial issue of cause of death.” If defendant means that the prosecutor's burden of proof was lightened because the instruction entitled the jury to consider improperly admitted evidence of cause of death, it suffices to note that we already have rejected the contention that this evidence was admitted improperly.
Defendant's principal contention seems to be that other-crimes evidence may be admitted only for the purpose of proving intent, identity, motive, knowledge, and conspiracy. Cause of death, he claims, is not an appropriate object of proof for other-crimes evidence. Rather, he asserts, cause of death may be proved only by expert opinion testimony.
Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act.” Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity. It recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but, contrary to defendant's contention, the list is not exclusive. (People v. Key (1984) 153 Cal.App.3d 888, 894 [203 Cal.Rptr. 144]; see also People v. Thompson (1980) 27 Cal.3d 303, 315, fn. 14 [165 Cal.Rptr. 289');">165 Cal.Rptr. 289, 611 P.2d 883]; 1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 75, p. 411.) As we have explained, the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. (People v. Thompson, supra, 27 Cal.3d 303, 315.) In order to be material, the fact in dispute “may be either an ultimate fact in the proceeding or an intermediate fact 'from which such ultimate fact[] may be ... inferred.' ” (Ibid., fn. omitted.)
Defendant's not guilty plea put in issue all the elements of the charged offenses. (People v. Balcom (1994) 7 Cal.4th 414, 422 [27 Cal.Rptr.2d 666');">27 Cal.Rptr.2d 666, 867 P.2d 777].) Evidence tending to demonstrate the cause of death was relevant to demonstrate that a murder-and not a natural death-had occurred. (See People v. Mendoza (2000) 24 Cal.4th 130, 171 [99 Cal.Rptr.2d 485');">99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Scheid (1997) 16 Cal.4th 1, 15 [65 Cal.Rptr.2d 348');">65 Cal.Rptr.2d 348, 939 P.2d 748].) Evidence that defendant previously had murdered his wife Glenna by poisoning her with paraquat was relevant to the issue of the cause of death in the charged crimes, because it tended to corroborate the other evidence establishing that Joyce and Martha died of paraquat poisoning. (See People v. Diaz, supra, 3 Cal.4th at pp. 561-562; People v. Ruiz, supra, 44 Cal.3d at pp. 605');">05-606; People v. Montalvo (1971) 4 Cal.3d 328, 332 [93 Cal.Rptr. 581');">93 Cal.Rptr. 581, 482 P.2d 205');">05, 49 A.L.R.3d 518] [evidence that defendant previously injected a young girl with heroin, causing certain reactions, was relevant to prove that in the charged crime, a substance that caused the same reactions when injected also was heroin].)
We are not persuaded by defendant's contention that the cause of death may be established only through expert opinion testimony and not through other-crimes evidence. Cases he cites in support declare only that expert opinion testimony on the question of cause of death also is admissible. (See People v. Mayfield, supra, 14 Cal.4th at p. 766; People v. Cole (1956) 47 Cal.2d 99, 103-104 [301 P.2d 854');">301 P.2d 854, 56 A.L.R.2d 1435].) Other evidence relevant to cause of death also is admissible. (See, e.g., People v. Mendoza, supra, 24 Cal.4th at p. 171; People v. Scheid, supra, 16 Cal.4th at p. 15; People v. Diaz, supra, 3 Cal.4th at pp. 561-562.)
Defendant complains that the instruction informed the jurors that in the event they found that Glenna died of paraquat poison, they could find from that fact alone that both Joyce and Martha died of paraquat poison. We do not believe, however, that the instruction conveyed that impression. It directed the jury to consider “if” the other-crimes evidence “tends” to demonstrate cause of death and identity, and directed the jury to weigh the evidence in the same manner as it would weigh all other evidence in the case.
Defendant claims that the giving of the instruction violated his state and federal constitutional rights to due process of law and to a fair trial. He contends that by permitting the jury to convict him on the basis of evidence of his criminal propensity, the instruction relieved the prosecution of its full burden of proof on the issue of the cause of the victims' deaths. We have concluded already, however, that the instruction did not permit the jury to rely on evidence of defendant's criminal propensity, and that it did not direct that the jury could determine the cause of Joyce's and Martha's deaths solely from evidence establishing that the cause of Glenna's death was paraquat poisoning.
Defendant also complains that the modified instruction failed to explain exactly what type of other-crimes evidence could be considered. In support, he cites People v. Rollo (1977) 20 Cal.3d 109');">20 Cal.3d 109');">20 Cal.3d 109');">20 Cal.3d 109 [141 Cal.Rptr. 177, 569 P.2d 771]. In that case this court stated that when evidence of a prior conviction has been admitted for impeachment purposes and other-crimes evidence also has been admitted pursuant to Evidence Code section 1101, subdivision (b), the trial court should instruct the jury as to which evidence is referred to in the CALJIC No. 2.50 instruction, in order to avoid confusion. (Rollo, supra, 20 Cal.3d at p. 123, fn. 6.) In the present case, in addition to the other-crimes evidence, evidence that defendant had suffered a prior forgery conviction was admitted for impeachment purposes. Even if we consider this claim as invoking the federal Constitution, with its exacting standard of prejudice, we conclude that any error in failing to modify CALJIC No. 2.50 was harmless beyond a reasonable doubt. The jury was instructed that the evidence of a prior conviction could be considered only for the purpose of impeachment. We believe there is no reasonable possibility that the jury considered the prior forgery conviction in making its determinations, in accordance with CALJIC No. 2.50, on the issues of cause of death and the identity of the perpetrator. (See Chapman v. California, supra, 386 U.S. 18, 24 [87 S.Ct. 824');">87 S.Ct. 824, 828].)

Catlin, 26 Cal.4th at 144-47.

         Petitioner has not shown the state supreme court acted reasonably and the claim otherwise lacks merit on de novo review. In evaluating a claim of instructional error, a single instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Additionally, a reviewing court does not engage in a technical parsing of the instruction's language, but instead approaches the instructions in the same way that the jury would -- with a “commonsense understanding of the instructions in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368. Lastly, federal courts presume that juries follow instructions, including cautionary instructions. Weeks, 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.

         Petitioner argues the trial court erred in giving the following modified CALJIC 2.50 instruction given to the jury in the Kern County proceeding over defense objection (RT 5160):

Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show: The cause of death of the victims in the crimes, if any, of which the defendant is accused; The identify [sic] of the person who committed the crimes, if any, of which the defendant is accused.

CT 1947.

         Petitioner suggests this instruction, given in the abstract and without reference to the evidence to which it related, improperly lessen the prosecution burden of the charges. (Doc. No. 25 at 95 citing Francis v. Franklin, 471 U.S. 307, 314 (1985) (jury instructions violate due process if they relieve the of the burden of persuasion on an element of an offense). This is so, he reasons, because CALJIC 2.50 allows consideration of “other crimes” evidence only where it tends to show intent, identity, motive, knowledge and conspiracy (see Doc No. 25 at 96), not cause of death as the prosecution used it here (see RT 5309; CT 1947). He argues that cause of death is established by medical expert testimony. (Doc. No. 25 at 96.) He suggests the “other crimes” evidence and modified instruction were prejudicial because they allowed the jury to find that Joyce and Martha died from paraquat poisoning based on the “other crimes” evidence from the Monterey County proceeding and without regard to the relevant expert medical testimony on this issue in the Kern County proceeding. (Doc. No. 25 at 96.)

         Yet the state supreme court reasonably could find the uncharged crimes evidence from the Monterey proceeding was probative of the crimes charged in the Kern County proceeding and properly admitted therein, as stated by that court. Particularly, evidence suggesting Petitioner killed Glenna by poisoning her with paraquat tended to corroborate other evidence that he killed Joyce and Martha by a plan of poisoning them with paraquat. See Catlin, at 146; (see also RT 37');">3765-71, 4037');">37.)

         Here again, Petitioner has not pointed to clearly established Supreme Court precedent as a basis for relief. See Blystone, 494 U.S. at 305');">05 (it is sufficient that “jury be allowed to consider and give effect to all relevant mitigating evidence”).

         Nor has Petitioner demonstrated to a level exceeding surmise that on the factual record this instruction and evidence lessened the prosecution's burden of proving the charged offenses beyond a reasonable doubt. Even if the modified instruction was improper as a matter of state law, that alone is not a basis for federal habeas relief. Dunckhurst, 859 F.2d at 114.

         In sum, the state supreme court reasonably could find the challenged instruction, considered in a common-sense fashion in the context of all the instructions given and presumably followed by the jurors did not deny Petitioner his federal rights. Weeks, 528 U.S. at 243.

         iii. Harmless Error

         Even if the trial court erred as alleged, the California Supreme Court reasonably could find such error had no substantial and injurious effect on the outcome. Brecht, 507 U.S. at 620. The other crimes evidence was properly admitted, for the reasons stated. Petitioner has not demonstrated on the evidentiary record any reasonable likelihood the jury applied the trial court's total instructional charge so as to preclude consideration of constitutionally relevant evidence.

         A common-sense application of the instructions given to the facts and circumstances of this case suggests the possibility of prejudice from the omitted instructions is only remote.

         Moreover, federal courts may not interfere with a state evidentiary ruling unless the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Jeffries v. Blodgett, 5 F.3d 1180, 1192) (9th Cir. 1993). Here, the noted evidence against Petitioner was substantial. (See e.g., claims 30, 31.)

         c. Conclusions

         The state supreme court reasonably could find trial court did not err by admitting evidence of the prior Monterey County proceeding on the death of Glenna as evidence of an uncharged crime, committed for “financial gain, ” and instructing the jury thereon.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claims 1, 2, and 4 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         Aspects of the claims considered de novo fail for the reasons stated.

         Claims 1, 2, and 4 shall be denied.

         3. Claim 3

         Petitioner alleges the trial court erred by admitting testimony by successor prosecution expert Dr. Ford on issues alleged time of ingestion of paraquat, onset of symptoms and progression of illness in the deaths of Glenna and Martha that differed from testimony in the Monterey County proceeding by predecessor prosecution expert Dr. Buteau on the same issues, denying due process, a fair trial, confrontation of evidence, effective assistance of counsel, and a reliable conviction and sentence under the Fifth, Sixth, Eighth, and Fourteenth Amendments.[12] (Doc. No. 25 at 87.)

         a. State Court Direct and Collateral Review

         The claim was raised on direct appeal as prosecutorial misconduct and a denial of due process, equal protection, and a fair trial under the Fifth and Fourteenth Amendments and found inappropriate for resolution on appeal. Catlin, 26 Cal.4th at 143-44.

         The claim was raised in the first state habeas petition on Sixth and Fourteenth Amendment grounds and denied on the merits. (Order No. S090636.)

         The same claim was raised in the second state habeas petition on Fifth, Sixth, Eighth, and Fourteenth Amendment grounds and denied on procedural grounds including to the extent aspects of the claim other than ineffective assistance of counsel and the constitutionality of the death penalty were raised and rejected on direct appeal (In re Waltreus) and raised and reached in the prior state habeas petition (In re Miller). (Order No. S1737');">3793).

         b. Analysis

         Petitioner faults the trial court for admitting prosecution proffered expert opinion on events of ingestion, onset of symptoms and progression of illness in the Monterey County proceeding and Kern County preliminary hearing (relating to the charged murder of Glenna and the uncharged homicides of Joyce and Martha) that differed from and allegedly were inconsistent with expert opinion on the same events it offered in the Kern County trial proceeding (relating to the charged murders of Joyce and Martha and the special circumstances prior murder of Glenna).

         The state supreme court found aspects of the claim inappropriate for resolution on direct appeal, stating that:

Defendant contends that the testimony of Dr. Buteau, a prosecution expert witness at the Monterey County trial for the death of Glenna, was substantially different from the testimony of Dr. Ford, a prosecution expert witness who testified at the trial in the present case. He complains that at the first trial and at the preliminary hearing in the present case, Dr. Buteau suggested that Glenna and Martha would have exhibited symptoms of paraquat poisoning within 12 to 24 hours of ingestion of paraquat.15 Under facts developed by defendant in the present case, it would have been unlikely or less likely that defendant could have administered the poison if the 12 to 24-hour timeframe were accurate. At trial in the present case, Dr. Ford, another expert, testified that Martha's symptoms were consistent with an earlier administration of the poison, and Glenna's with a later administration of the poison-in each instance times at which defendant had the opportunity to administer the poison. Defendant claims that the prosecutor committed misconduct in violation of defendant's right to a fair trial by prosecuting the present case under a different theory and with different evidence than was presented at the earlier trial for the murder of Glenna.
n.15 As noted above, the trial record in the Monterey County case is not part of the record on appeal in the present case.
To the extent defendant's claim is based upon inconsistencies between the testimony of Dr. Ford in the present case and that of Dr. Buteau at a different trial, those inconsistencies could be explored on cross-examination and through the presentation of defense evidence. In fact, Dr. Ford was cross-examined regarding these inconsistencies, and defendant called Dr. Buteau as a defense witness. With respect to the possibility that separate trials relating to the same crime improperly may have been tried under inconsistent theories, we examined a similar claim in People v. Sakarias (2000) 22 Cal.4th 596');">22 Cal.4th 596');">22 Cal.4th 596');">22 Cal.4th 596 [94 Cal.Rptr.2d 17, 995 P.2d 152]. (29) In that case, we determined that a contention that inconsistent theories of prosecution give rise to a claim that the prosecution wrongfully has employed different theories at two separate trials best is examined in connection with a petition for writ of habeas corpus, where the record of the prior trial may be examined and the reasons for the discrepancies may be analyzed and explained. (Id. at pp. 635-636.) For the same reason, we determine that the issue is not appropriate for resolution on direct appeal in the present case.

Catlin, 26 Cal.4th at 143-44.

         As discussed below, the state supreme court reasonably denied the claim on the merits to the extent raised in the first state habeas petition and the claim otherwise lacks merit upon de novo review, as discussed below.

         i. Allegedly Inconsistent Prosecution Theories

         Petitioner argues prosecution expert Dr. Ford opined at the Kern County proceeding paraquat ingestion timelines that varied from such timelines offered by predecessor prosecution expert Dr. Buteau in the Monterey proceeding and Kern County preliminary hearing. He suggests this change in theory was meant to avoid Petitioner's alibi defenses.

         (1) Differing Testimony of Drs. Buteau and Ford

         Petitioner observes that as to Glenna, in the Monterey County proceeding and Kern County preliminary hearing prosecution expert, Chevron toxicologist Dr. Buteau, testified that given the concentration of paraquat in her tissue Glenna's symptoms of nausea and vomiting would have begun 12 to 24 hours after ingestion of paraquat. (Doc. No. 25 at 87 citing 1SHCP Ex. 102 at 307-08, 1273; see also RT 3943-44.)

         Petitioner argues Dr. Buteau's opinion tended to support his alibi defense. He points to testimony from Glenna's mother that Glenna showed some symptoms beginning more than 48 hours after she had seen Petitioner (RT 3077-80) - suggesting Petitioner could not have administered the paraquat within the timeframe provided by Dr. Buteau.

         Petitioner goes on to argue that in the Kern County trial, the prosecution used a different expert, Chevron toxicologist Dr. Ford, who opined that the symptoms observed by Glenna's mother were unrelated to subsequent paraquat induced symptoms he believes Glenna suffered within 12 to 24 hours of Petitioner having contact with her upon return from Las Vegas (RT 3928-30). Dr. Ford opined Glenna ingested paraquat on the day she became acutely ill. (Id.; see also RT 3971-73, 3981.) Dr. Ford's testimony tended not to support Petitioner's alibi defense.

         Petitioner observes that as to Martha, in the Monterey County proceeding and Kern County preliminary hearing Dr. Buteau testified that given the concentration of paraquat found in her tissue, Martha ingested paraquat on December 5th or 6th, 1984, with symptoms beginning December 6th and death following on December 8th. (1SHCP Ex. 102 at 298-313; CT 769-74.) Dr. Buteau suggested a presenting complication could be cardiac arrest. (1SHCP Ex. 102 at 298.)

         Petitioner points to evidence in both his proceedings that he had no access to Martha during the period following December 2, 1984 and up to her death on December 8, 1984 (1SHCP Ex. 102 at 941-943, 947, 954-964, 986-87; RT 4415, 4428-4429, 4471-4473, 4589-4593, 4601-4608, 4709-12) - suggesting Petitioner could not have administered the paraquat within the timeframe provided by Dr. Buteau.

         Petitioner goes on to argue that in the Kern County proceeding, Dr. Ford opined that Martha probably ingested paraquat 6 or 7 days prior to her death, within the period Petitioner had access to Martha. (RT 3921, 3957-61, 3984-85.)

         Petitioner also argues that prosecution witness Mark Skinner, an employee of Petitioner, changed his testimony in order to place Petitioner in Martha's home within the paraquat ingestion timeline stated by Dr. Ford. (Cf. RT 3557-66 with RT 4251-72.)

         ii. The Expert Testimony was Properly Admitted

         Petitioner has not demonstrated the noted expert testimony was improperly admitted. The jury presumably considered and weighed the expert opinion consistent with their instructions. Petitioner has not shown this process was materially unfair. Especially so, given the issue of ingestion timeline was not an ultimate issue in the charged offenses. Cf., Thompson v. Calderon, 120 F.3d 1045, 105');">056-57 (9th Cir. 1997) (reversed and remanded in Calderon v. Thompson, 523 U.S. 538 (1998)) (state presented inconsistent theories as to the identity and motive of the killer in separate trials against two defendants charged with the same murder).

         Petitioner argues that he was denied the right to confront the above noted “diametrically differing” and “inherently unfair” expert opinion. (Doc. No. 95 at 103.) Evidence, he argues was altered in the Kern County proceeding by the prosecution knowingly taking different positions with respect to the same events, denying him a due process right to a fair trial. (Doc. No. 25 at 92.) He suggests the prosecution is judicially estopped from taking such inconsistent positions (see Doc. No. 25 at 93 citing Russell v. Rolfs, 893 F.2d 1033, 1037');">37 (9th Cir. 1990) (judicial estoppel bars “making a factual assertion in a legal proceeding which directly contradicts an earlier assertion made in the same proceeding or a prior one”) and should not have been allowed to introduce evidence of Glenna's murder not presented in the Monterey trial. He suggests the evidence admitted in the Kern County proceedings was akin to false testimony. (Doc. No. 95 at 93, 103.)

         However, Petitioner fails to demonstrate that he was denied fair confrontation of properly admitted expert opinion in the Kern County trial. The record shows that counsel in the Kern County proceeding used Dr. Buteau's prior testimony in cross-examining prosecution witnesses including Dr. Ford. The defense also called Dr. Buteau to testify in that proceeding, asking no questions about Glenna's death, and eliciting testimony from Dr. Buteau that Martha ingested paraquat anywhere from a couple days to a week prior to her death (RT 4532-37');">37) following his review of additional information including Dr. Ford's testimony. (RT 4546-49.) Dr. Buteau's modified testimony was not necessarily inconsistent with Dr. Ford's noted testimony because the suggested ingestion timelines somewhat overlapped.

         Additionally, the opinions of other experts in Petitioner's Monterey and Kern County proceedings appear to be somewhat equivocal, qualified and inconclusive as to time Glenna and Martha might have ingested paraquat. For example, defense expert, Dr. Russell, testified in the Kern County proceeding that she was unable to say when Glenna ingested paraquat, but that she believed Glenna's symptoms while in Las Vegas were the result of paraquat. (RT 4389-90.) Dr. Russell further opined that Martha ingested paraquat approximately forty-eight hours before her death, conceding this timeline was variable depending upon other factors. (See RT 4388-4402.)

         Dr. Stephens testified in the Kern County proceeding that he was uncertain when Glenna ingested the paraquat. (RT 37');">3796.) Dr. Stephens did not opine on when Martha ingested paraquat, but he found it unlikely she ingested a large amount within 2 days of her death. (RT 37');">3792-94, 3827.) Dr. Kilburn stated Martha's symptoms were consistent with having ingested paraquat 3 to 6 days before her death. (RT 4049.)

         Petitioner's re-argued collateral estoppel theory, that he was convicted in the Kern County proceeding of murdering Martha and Joyce even though the Monterey county trial judge (i) ruled no rational trier of fact could be persuaded beyond a reasonable doubt that he poisoned Martha (thereby excluding evidence of Martha's death from the Monterey penalty phase) (see Doc. No. 25 at 90 citing 1SHCP Ex. 102 at 112, 183-94, 1161), and (ii) found that Petitioner's culpability for Joyce's murder could not be proved by even a preponderance of evidence (thereby totally excluded evidence of that crime from Petitioner's Monterey County trial) (id. at 91 citing 1SHCP Ex. 102 at 181. RT 25-27). This re-argument fails for reasons stated in the discussion of claims 1, 2 and 4, above.

         Similarly, Petitioner argument that in effect, he was unconstitutionally forced to stand trial on the charged and uncharged counts in both Monterey and Kern counties, denying him due process and equal protection, is unpersuasive, for the reasons stated. (See Doc. No. 25 at 90.) Prosecutors in both proceedings theorized that Petitioner poisoned Glenna and Martha with paraquat and that timelines for paraquat ingestion were somewhat variable. Petitioner has not demonstrated prosecution use of false expert testimony (Napue v. Illinois, 360 U.S. 264, 269 (1959) (prosecutor's knowing presentation of false testimony violates due process), or fundamental unfairness arising from admission of this evidence (Turner v. Louisiana, 37');">379 U.S. 466, 472 (1965) (verdict must be based upon the evidence developed at trial), for the reasons stated.

         c. Conclusions

         The state supreme court reasonably could find trial court did not err by admitting the noted expert testimony.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claim 3 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The balance of the allegations fails on de novo review, for the reasons stated.

         Claim 3 allegations of trial court error shall be denied.

         4. Claim 5

         Petitioner alleges the Kern County trial court erred by admitting evidence of deaths of Joyce and Martha that was found legally insufficient as “other crimes” evidence in the Monterey County proceeding, denying him a fair trial and placing him in double jeopardy in the Kern County proceedings, violating his rights under the Fifth and Fourteenth Amendments. (Doc. No. 25 at 98.)

         a. State Court Direct and Collateral Review

         Petitioner's claim that the admission of evidence from the Monterey County proceeding in the form of preliminary hearing testimony regarding the killing of Martha and Joyce denied him a fair trial and placed him in double jeopardy was considered on direct appeal and partially denied on procedural grounds as to Martha and entirely denied on the merits as to the double jeopardy allegation. Catlin, 26 Cal.4th at 128-30.

         The claim was raised in the second state habeas petition and as to other than ineffective assistance of counsel and the constitutionality of the death penalty, it was denied on procedural grounds as raised and rejected on appeal (In re Waltreus). (Order No. S1737');">3793.)

         b. Analysis

         Petitioner alleges the prosecution in the Kern County trial court was collaterally estopped from relitigating issues and testimony of the deaths of Joyce and Martha that were decided found insufficient as other crimes evidence in the Monterey County proceeding. (Doc. No. 25 at 98-99 citing 1SHCP Ex. 102 at 112, 181-94, 1161.)

         Specifically, he argues the Monterey County court considered uncharged crime evidence and necessarily found Petitioner was not culpable for the deaths of Joyce and Martha and that the Kern County court should have been bound by these findings. (See Doc. No. 95 at 106.) He invokes Ashe in arguing that relitigation of the issue in Kern County violated his federal rights. (See 397 U.S. at 445.) However, the allegation lacks merit upon deferential and de novo review, as follows.

         i. Collateral Estoppel Regarding Monterey County Rulings on Other Crimes Evidence

         Petitioner argues the Monterey County court finally determined that evidence relating to Joyce's murder was inadmissible, i.e. that:

[The evidence] falls short of the degree of proof that is required for admissibility. The Court instructs us that we have to, when they're [uncharged crimes] [ ] use extreme caution in something like that. I thought Dr. Russell's testimony was very convincing. I do not [sic] feel that some of the other experts unconsciously are affected by the fact of what transpired since 1976. Where you look at the evidence relating to the defendant's guilt relative to Joyce's death, unaffected by the other deaths, I think it does not amount to proof by a preponderance of the evidence. So, I'll grant the motion for the defense to not admit that [evidence of Joyce's death] into the trial.

(Doc. No. 25 at 100 citing 1SHCP Ex. 102 at 181.)

         Petitioner argues the Kern County court was bound by this finding at his later trial for the charged crime of murdering Joyce because “the issues in the two trials vis-à-vis the Joyce Catlin homicide were identical.” (Doc. No. 25 at 100.)

         Petitioner also argues the Monterey County court finally determined that evidence presented there was insufficient to show beyond a reasonable doubt that he committed the (therein uncharged) murder of Martha (see Doc. No. 25 at 99 citing 1SHCP Ex. 102 at 112), precluding such aggravating evidence at the penalty phase. Petitioner argues the Kern County court was bound by this finding at Petitioner's later trial for the charged crime of murdering Martha wherein “substantially the same evidence” was used against Petitioner. (Doc. No. 25 at 99.)

         Petitioner argues the prosecution improperly relitigated such matters in the Kern County proceeding denying him due process and exposing him to double jeopardy. (Id. at 100.)

         The state supreme court, in rejecting these allegations, stating that:

Defendant contends that, under the collateral estoppel doctrine of the state and federal Constitutions, rulings by the trial court at his Monterey County trial for the murder of Glenna should have barred the trial court in the present case from admitting evidence concerning the murders of Martha and Joyce. As we shall explain, this contention clearly lacks merit.
Defendant alleges that in the Monterey County trial, the court had before it the preliminary hearing transcripts for the charged murders of Joyce and Martha, and the prosecution sought to introduce evidence of both of those murders at the guilt phase of the Monterey proceedings, pursuant to Evidence Code section 1101, subdivision (b). According to defendant, the trial court excluded from the guilt phase of the Monterey County trial all evidence suggesting that defendant had murdered Joyce, on the ground that the prosec ution had not established defendant's commission of that crime even by a preponderance of the evidence. Defendant further alleges that although the trial court permitted the prosecution to introduce evidence of Martha's murder at the guilt phase of the Monterey County trial, the court subsequently refused to permit the prosecution to rely upon that murder as a factor in aggravation at the penalty phase, on the ground that the prosecution's evidence failed to establish beyond a reasonable doubt defendant's culpability for murdering Martha.
As noted, defendant contends that these alleged rulings by the trial court in the Monterey County proceeding operated, by virtue of the collateral estoppel doctrine, to preclude the trial court in the present proceeding from admitting evidence concerning the murders of Martha and Joyce. In essence, defendant claims that the charges should have been dismissed, because without evidence of the murders of Martha and Joyce the prosecution would be unable to carry its burden of proof.
Defendant did move at trial in the present case to dismiss count one, involving the murder of Joyce, on collateral estoppel grounds. He did not move to dismiss count two, involving the murder of Martha. His claim as to that count may not be raised for the first time on appeal. (See People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354] [plea of once in jeopardy cannot be raised for the first time on appeal except in the context of a claim of ineffective assistance of counsel]; People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1 [55 Cal.Rptr.2d 347');">55 Cal.Rptr.2d 347, 919 P.2d 1280].) To the extent any failure on the part of counsel to raise a meritorious claim below could have constituted ineffective assistance of counsel, we reach the merits of the claim as to each count. (See People v. Marshall, supra, 13 Cal.4th at p. 824, fn.1.)
The record in the present case does not contain the hearing in the Monterey County trial court with respect to the evidence of the murders of Martha and Joyce, so we cannot comment on the basis for the Monterey trial court's determination. Even if we assume that defendant's assertions regarding the Monterey trial court's ruling are correct, however, it is clear that defendant's guilt or innocence of the crimes of murdering either Martha or Joyce were not issues of ultimate fact to be determined in the Monterey County trial for the murder of Glenna. Defendant was not acquitted of the murders of Joyce and Martha in Monterey County. (See Gikas v. Zolin (1993) 6 Cal.4th 841 [25 Cal.Rptr.2d 500, 863 P.2d 745]; see also People v. Davis (1995) 10 Cal.4th 463, 514 [41 Cal.Rptr.2d 826, 896 P.2d 119].) Further, just as the trial court in the present case, involving defendant's prosecution for the murders of Joyce and Martha, properly could admit evidence supporting the inference that defendant had killed Glenna for financial gain despite the finding of the trial court in a separate trial for the murder of Glenna that the murder for financial gain special circumstance had not been proved, the trial court properly could permit defendant's prosecution for the murders of Martha and Joyce despite the circumstance that in another trial on a different charge, a court had determined that the evidence then before the court at a hearing on the admissibility of evidence of other crimes did not establish defendant's guilt of the murders of Martha and Joyce. Defendant does not provide authority, and our research has not produced support, for the claim that a murder may not be prosecuted if in a prior prosecution for a different crime, evidence regarding that murder was not considered strong or reliable enough to be admitted as evidence of guilt or as evidence supporting a factor in aggravation.

Catlin, 26 Cal.4th at 128-30.

         The state supreme court reasonably rejected the claim for the reasons stated by that court. The claim otherwise fails on de novo review. The record reflects that Petitioner was not charged with the murders of Joyce and Martha in the Monterey County proceeding. Whether Petitioner murdered Joyce or Martha was not an issue of ultimate fact before the Monterey County court; no ruling thereon, conviction or acquittal, was rendered by the Monterey court. Accordingly, principles of collateral estoppel are not implicated. See Dowling, 493 U.S. at 349.

         The jury presumably considered the admissible other crimes evidence consistent with its instructions. Petitioner has not demonstrated constitutional error in this regard. State law error, if any there be, alone is not a basis for federal habeas relief.

         Accordingly, it does not appear that the California Supreme Court's rejection of aspects of claim 5 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The claim otherwise lacks merit upon de novo review, for the reasons stated.

         c. Conclusions

         The state supreme court reasonably could find trial court did not err by admitting evidence of deaths of Joyce and Martha that was found legally insufficient as “other crimes” evidence in the Monterey County proceeding.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claim 5 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The balance of the allegations fails on de novo review, for the reasons stated.

         Claim 5 shall be denied.

         5. Claims 6 and 19[13]

         Petitioner alleges the trail court erred by denying counsel's motion to sever amended information Count I (1976 murder of Joyce) from Count II (1984 murder of Martha) (i.e. claim 6), and by failing to provide separate juries for the guilt and penalty phases (i.e. claim 19), denying him due process, a fair trial, an impartial jury, and freedom from cruel and unusual punishment under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 102, 192; see also CT 1762-66, 1781-85; RT 57-59.)

         a. State Court Direct and Collateral Review

         i. Claim 6

         Petitioner's allegation that the joint trial on counts I and II violated his rights to due process and a fair trial under the Fifth and Fourteenth Amendments was considered on direct appeal and denied on the merits. Catlin, 26 Cal.4th at 110-113.

         The claim was raised in the second state habeas petition and (as to other than ineffective assistance of counsel and the constitutionality of the death penalty) it was denied on procedural grounds as raised and rejected on appeal (In re Waltreus). (Order No. S1737');">3793.)

         ii. Claim 19

         Petitioner's allegation that trying the guilt and penalty phases before the same jury violated his rights to a fair trial, due process, a reliable determination of guilt and penalty by an impartial jury, and freedom from cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments was raised on direct appeal and denied on the merits. Catlin, 26 Cal.4th at 113-15.

         The claim was raised in the second state habeas petition and denied on procedural grounds (as to other than ineffective assistance of counsel and the constitutionality of the death penalty) as raised and rejected on appeal (In re Waltreus). (Order No. S1736793.)

         b. Analysis

         Petitioner alleges the trial court erred by denying counsel's motion to sever counts I and II, and by failing to provide separate juries for guilt and penalty phases.

         The claims lack merit upon deferential and de novo review, as follows.

         i. Failure to Sever Counts I and II

         Petitioner argues that the trial court's failure to try the counts separately improperly allowed the jury to consider all the evidence when deciding each count where the evidence “was neither of equal strength nor cross-admissible.” (Doc No. 25 at 102 citing Williams v. Superior Court, 36 Cal 3d. 441, 451-452 (1984) (joinder of crimes which are not cross-admissible so prejudicial as to violate due process) (superseded by statute as stated in People v. Simon, 1 Cal. 5 th 98, 124 (2016); McKinney v. Rees, 37');">378');">993 F.2d 137');">378 (9th Cir. 1993) (introduction of other bad acts violated defendants' right to a fundamentally fair trial).

         Petitioner argues the erroneous failure to sever the counts confused the jury regarding the evidence and law relating to separate murders of Joyce and Martha and resulted in the improper aggregation of evidence from the separate counts so as to alter the outcome at trial. (Doc. No. 25 at 104 citing People v. Sandoval, 4 Cal.4th 155, 172-73 (1992) (requirements under Penal Code section 954 for joint trial met where both counts involved the same class of crimes - murder); id. at 109 citing People v. Smallwood, 42 Cal.3d 415, 427 (1986) (“Clearly joinder should never be a vehicle for bolstering either one or two weak cases against one defendant particularly where conviction in both will give rise to a possible death sentence.”).

         Especially so here, he argues, as the jury in his Kern County proceeding was death qualified and thus more conviction prone. (See Doc. No. 25 at 108 citing Hovey v. Superior Court, 28 Cal.3d 1, 81 (1980) (superseded by statute as stated in People v. Jackson, 1 Cal. 5 th 269, 357 (Cal. 2016) (providing for individual, sequestered death penalty qualification voir dire); cf. Lockhart v. McCree, 476 U.S. 162, 173 (1986) (death qualification without more not a denial of due process).

         Petitioner argues the effect of this error was prejudicial because the evidence supporting each count was not cross-admissible; the weight of the evidence supporting Count II was greater and more inflammatory than that supporting the more remote in time Count I concerning the apparently natural death of Joyce eight years earlier (see CT 366-408, 1524-26; RT 3135, 3239-43, 3457-59, 3810-12, 3823); the prosecution sought the death penalty only on Count II; and a death qualified jury heard the non-capital Count I. (See Doc. No. 25 at 103-04, citing People v. Sully, 53 Ca1. 3d 1195, 1222-1223 (1991) (factors to be considered in severance analysis include whether the evidence is cross-admissible, certain charges are inflammatory or involve the death penalty, and a weak case joined with a stronger case). As an example of this prejudicial spillover effect, Petitioner notes that the medical experts were uncertain as to the cause of Joyce's death until made aware of subsequently developed evidence presented in the murders of Glenna and Martha.

         Then effective Penal Code section 954 provided that:

An accusatory pleading may charge two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes ... provided that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately.

         The California Supreme Court considered and denied the failure to sever allegation on direct appeal, stating that:

Defendant contends that the court abused its discretion in denying his motions to sever count one, charging him with the murder of Joyce, from count two, charging him with the murder of Martha. He contends the error constituted a denial of his constitutional right to due process of law and a fair trial.
Section 954 provides that “[a]n accusatory pleading may charge ... two or more different offenses of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately ....” The offenses in the present case were of the same class, and accordingly joinder was permissible. (People v. Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259].)
As we have explained: “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” [Citation.] [¶] ... Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak case has been joined with a strong case, or with another weak case, so that the spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” (People v. Bradford, supra, 15 Cal.4th at p. 1315.) Significantly, “if evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, such cross-admissibility ordinarily dispels any inference of prejudice ....” (Id. at p. 1316.) We examine the record before the trial court at the time of its ruling to determine whether the court abused its discretion in denying the severance motion. (People v. Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106');">3 Cal.Rptr.2d 106, 821 P.2d 610].)3
n.3 New constitutional and statutory provisions adopted by Proposition 115, adopted in June 1990 (see Cal. Const., art. I, § 30, subd. (a); Pen. Code, § 954.1) were not in effect at the time of the ruling on the severance motion and are not considered here. (See People v. Bradford, supra, 15 Cal.4th at p. 1314, fn. 13.)
In a separate trial for the murder of Joyce, evidence that defendant had murdered Martha by paraquat poisoning would have been cross-admissible pursuant to Evidence Code section 1101. “Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369 [75 Cal.Rptr.2d 716');">75 Cal.Rptr.2d 716, 956 P.2d 1169].) In addition, “[t]o be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses.” (Ibid.) The similarity, considering the degree of similarity and the number of common marks, should amount to a signature. (Id. at p. 37');">370.)
In order to be relevant as a common design or plan, “evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) We have explained that “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, ” and that “evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.” (Id. at p. 403, italics added.)
In the present case, each count bore a number of distinctive common marks. In each instance, the victim was a close female relative of the defendant-wife or mother. In each instance, the defendant stood to gain financially from the victim's death. In Martha's case, it was overwhelmingly established that the victim had ingested paraquat before death. Strong expert opinion evidence based on observations regarding the clinical course of the illness and the appearance of tissue removed at the autopsy established that the cause of death for Joyce also was paraquat poisoning. Paraquat poisoning is rare, and its occurrence with respect to two close relatives of one person is unlikely to be a matter of chance or to be the result of a spontaneous impulse. When evidence of a third instance of the same type of poisoning is introduced, as it properly was in the present case, the inference regarding a common design or plan becomes very strong. (See People v. Diaz (1992) 3 Cal.4th 495, 561-562 [11 Cal.Rptr.2d 353');">11 Cal.Rptr.2d 353, 834 P.2d 1171] [when defendant claimed that hospital patient victims died of natural causes or due to negligence of hospital personnel, evidence that in an uncharged crime another victim attended by defendant died of lidocaine poisoning was relevant and admissible under Evid. Code, § 1101, subd. (b), to refute defendant's claim as to the cause of death and to establish identity and modus operandi]; People v. Ruiz (1988) 44 Cal.3d 589, 605');">05-606 [244 Cal.Rptr. 200');">244 Cal.Rptr. 200, 749 P.2d 854] [the abrupt disappearance of one wife under suspicious circumstances indicating foul play would be admissible to show identity of the perpetrator of the murder of defendant's fifth wife, who disappeared under similar circumstances]; People v. Archerd, supra, 3 Cal.3d at pp. 621, 628 [evidence that defendant had killed relatives by insulin poisoning was admissible evidence of modus operandi and knowledge of the means used to prove that he murdered other relatives by insulin poisoning].) We believe that these circumstances “dispel any inference of prejudice” arising from the joinder of the two counts. Even if we consider defendant's other claims of prejudice, we observe that neither crime was more inflammatory than the other. Further, contrary to defendant's claim, it cannot be said that the evidence of defendant's guilt of the murder of Joyce was particularly weak, especially in light of the proper admission of the evidence of the murder of Glenna by the same common plan.
Defendant also claims prejudice on the ground that his right to an impartial jury was impaired because the joinder subjected the jury to voir dire on prospective jurors' attitudes concerning the death penalty. Defendant contends that at a separate trial on the noncapital count charging defendant with the murder of Joyce, the jury would not have been death qualified and persons opposed to the death penalty would not have been excluded. The exclusion from a jury of persons opposed to the death penalty, however, does not violate the state or federal constitutional right to an impartial jury. (People v. Jackson (1996) 13 Cal.4th 1164, 1198 [56 Cal.Rptr.2d 49');">56 Cal.Rptr.2d 49, 920 P.2d 1254]; People v. Ashmus (1991) 54 Cal.3d 932, 956-957 [2 Cal.Rptr.2d 112');">2 Cal.Rptr.2d 112, 820 P.2d 214].) In a case in which defendants are tried jointly, a defendant charged with a noncapital crime does not have a right to severance on the ground that his or her jury no longer will be impartial if exposed to the death qualification voir dire required by a codefendant's capital charges. (People v. Wimberly (1992) 5 Cal.App.4th 773, 794 [7 Cal.Rptr.2d 152].) Under defendant's theory, a capital and a noncapital offense never could be joined - a proposition that certainly is not supported by our case law.
Defendant finally contends that joinder was prejudicial because having heard evidence of both crimes, the jury would believe “the only way to properly punish appellant for committing two murders (Joyce and Martha) was to find him guilty of Martha's murder and thereby assure the death penalty.” We agree with respondent that the claim is speculative and is particularly unpersuasive because the matter of penalty was not under consideration at the time the guilty verdict was rendered. In addition, because the evidence would have been cross-admissible even in separate trials, severance would not have avoided the result surmised by defendant. We conclude that the trial court did not abuse its discretion in denying defendant's motion to sever the trial of counts one and two.

Catlin, 26 Cal.4th at 110-113.

         The state supreme court reasonably denied the allegations. Misjoinder violates the constitution only where the prejudicial effect denies defendant a fair trial. United States v. Lane, 474 U.S. 438, 446, n.8 (1986).

         Petitioner argues the state supreme court erroneously found the failure to sever the counts did not deny him a fair trial. (See Doc. No. 95 at 108 citing Grisby v. Blodgett, 130 F.3d 365');">130 F.3d 365, 37');">370 (9th Cir. 1997) (considering whether a joint trial denied due process).

         However, the evidence relating to counts I and II reasonably appeared cross-admissible for the reasons stated by the California Supreme Court. Petitioner's reliance upon McGuire v. Estella, a case not involving joined claims, is not authority otherwise. 873 F.2d 1323 (9th Cir. 1989) (opinion withdrawn and superseded by McGuire v. Estelle, 902 F.2d 749 (1990)) (reversed by Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) (a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States).

         Notably, the Kern County jury was instructed that counts I and II charged separate crimes which were to be decided separately. (RT 5320-25.) The jury was aware that the forensic and expert opinion varied as to whether and the extent to which paraquat might have been involved in Joyce's death. For example, the jury heard testimony that the autopsy report on Joyce made no mention of paraquat. (RT 3238.) The jury was aware the coroner's death certificate stated the cause of death as respiratory failure due to severe bilateral pneumonitis due to undetermined micro-organisms. (RT 3239-40.)

         Joyce's treating physician, Dr. Einstein, agreed with this cause of death, but opined at the 1990 Kern County trial that Joyce nonetheless died from paraquat damaged lungs. (RT 3219, 3240-43.) Prosecution expert Dr. Ford testified that based upon his review of Joyce's medical records and Dr. Einstein's testimony, he believed Joyce died from paraquat ingestion. (RT 3916.)

         Dr. Kilburn, a USC medical professor, testified that based upon his 1976 examination of Joyce's lung tissue received from autopsy physician Dr. Swinyer and prosecution forensic medical expert Dr. Stephens, his initial belief was that Joyce's lung damage could have been caused by any number of agents including paraquat poisoning (RT 4010-29); and that subsequently upon learning information presented in the Monterey proceeding he came to believe beyond a reasonable doubt that paraquat was the cause of Joyce's death. (RT 4032-45.)

         Dr. Stephens, considering similar information, also opined that Joyce died from paraquat poisoning beyond a reasonable doubt. (RT 3826.)

         Defense expert Dr. Russell testified that upon review of Joyce's autopsy records and medical history, she believed her lung damage could have been caused by any number of agents including paraquat poisoning (RT 437');">377-86.)

         Defense toxicology and poison expert Dr. Bayer testified that upon his review of Joyce's medical records, he believed her symptoms were more consistent with infection that paraquat poisoning. (RT 5036-52.)]

         The state supreme court reasonably could find these expert opinions admissible and for the jury to weigh, as discussed above. (See claims 1-5, ante.) Petitioner has not demonstrated otherwise.

         Petitioner's further argument that prejudice was apparent in juror confusion over whether Joyce was a capital count (see Doc. No. 95 at 108 citing Ex.'s 143, 145, 147) reasonably could be found unpersuasive. As noted, the Kern County jury was instructed that counts I and II charged separate crimes which were to be decided separately. (RT 5320-25; see also claim 37');">37, post.) The evidence relating to counts I and II was cross-admissible for the reasons stated by the California Supreme Court. (See Catlin, 26 Cal.4th at 110.)

         ii. Failure to Empanel Separate Guilt and Penalty Phase Juries

         Petitioner argues that the trial court erred in denying counsel's motion for separate juries. (See RT 46-47, 57-59; CT 1785, 1857-60; see also CT 1490.) He argues the inflammatory effect his prior conviction for Glenna's murder likely had on the Kern County jury's guilt determination. He argues California's death penalty statute acknowledges as much by requiring that where, as here, a prior murder special circumstance is charged, the special circumstance shall be tried separately from the guilt trial. Penal Code § 190.1(a-b).

         Particularly, Petitioner argues prejudice resulting from exposing the Kern County jury, already biased due to death qualification, to facts relating to the three murders, Glenna, Joyce and Martha. (CT 1859; RT 18-20); Bruton v. United States, 391 U.S. 123, 131, n.6 (1968)) (right to an impartial jury requires exclusion of other crimes evidence where such evidence would inordinately prejudice the jury); see also Williams, 36 Cal 3d. at 451-452 (joinder of crimes which are not cross-admissible so prejudicial as to violate due process). He argues the deaths of Joyce and Martha were distinct and distant events similar only by inference - such that cross-admissibility of evidence was improper. Especially so, he argues, as the prosecution case in Martha's death was much stronger that in Joyce's death, and given juror bias from death qualification and confusion arising from the uncharged crime evidence from Glenna's proceeding.

         California law provides that the same jury that determined guilt shall determine the penalty, “unless for good cause shown, the court discharges that jury in which case a new jury shall be drawn.” Penal Code § 190.4(c); People v. Rowland, 4 Cal.4th 238, 268 (1992) (“[C]ontrary to the Court of Appeal's conclusion, [in People v. Superior Court [Rowland] . . . the court had authority to entertain the motion, [for separate juries] even though it was made prior to trial.”).

         The state supreme court rejected the allegations, stating that:

Defend ant contends that the trial court erred in denying his motion for separate guilt and penalty phase juries. He claims a violation of his federal constitutional rights to an impartial jury, to a fair trial, and to a reliable sentencing determination. Referring to the special circumstance allegation that he committed the murder of Martha after having previously been convicted of another murder (§ 190.2, subd. (a)(2)), defendant contends it is inherently unfair to have the same jury try the guilt and penalty phases of a capital case when one of the special circumstances is a prior murder allegation. He contends that although the jury did not learn of the prior-murder-conviction special-circumstance allegation until after it had rendered its verdict in the guilt phase, he was forced to voir dire the potential jurors on their attitude toward a prior murder conviction in order to secure an unbiased penalty phase jury. He claims that this circumstance prejudiced the guilt phase deliberations, because voir dire questions hinted that defendant had suffered a prior murder conviction. He also contends that trial of both phases by the same jury produced a penalty phase jury that, knowing now of the prior conviction, would be prejudiced by defendant's earlier denials regarding the murder of Glenna.
Defense counsel's motion for separate juries was denied without prejudice to renewal at the conclusion of the guilt phase. It does not appear from our examination of the record that the motion was renewed. Defendant claims, however, that the trial court totally failed to exercise its discretion with respect to his motion, because it denied the motion for separate juries solely under the mistaken belief that the motion could be entertained only at the conclusion of the guilt phase.
It is true that the trial court erred in directing that the motion could be entertained only after the guilt phase verdict. (See People v. Rowland (1992) 4 Cal.4th 238, 268 [37');">377');">14 Cal.Rptr.2d 37');">377');">37');">377');">14 Cal.Rptr.2d 37');">377, 841 P.2d 897].) The court apparently did not consider the merits of defendant's motion. We believe, however, that the error was harmless. As section 190.4, subdivision (c), provides: “If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider ... the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record ....”
(9) As we have explained, there is a “ 'long-standing legislative preference for a single jury to determine both guilt and penalty.' ” (People v. Lucas (1995) 12 Cal.4th 415, 483 [48 Cal.Rptr.2d 525');">48 Cal.Rptr.2d 525, 37');">373');">907 P.2d 37');">373].) “[T]he 'mere desire' of defense counsel 'to voir dire in one way for the guilt phase and a different way for the penalty phase,' ” we have said, “does not constitute good cause for deviating from the clear legislative mandate ....” (People v. Rowland, supra, 4 Cal.4th at p. 268 [counsel's desire to voir dire guilt and penalty phase jurors differently depending on whether or not they would be exposed to other evidence of defendant's other crimes did not require the empanelling of separate juries].) We do not believe that defendant's concern regarding the asserted necessity for hypothetical voir dire questions regarding juror attitudes toward a prior murder conviction would establish as a “' ”demonstrable reality“' ” that members of the jury panel would be “' ”[unable] to perform the functions of a juror.“' ” (People v. Bradford, supra, 15 Cal.4th at p. 1354.) Rather, defense counsel's concern was one that commonly may occur when defense strategy changes between the guilt and penalty phases of a capital trial.
We have observed, however, that “[i]n almost every capital trial, regardless of the special circumstances alleged, there will be evidence introduced at the penalty phase ... which would otherwise be irrelevant or inadmissible in the determination of guilt. Defense counsel are routinely faced with difficult tactical decisions in having to fashion voir dire inquiries that probe for possible penalty phase biases regarding such evidence, while stopping short of revealing information otherwise prejudicial and excludable in the guilt phase. Certainly such will almost always be the case where the special circumstance alleged is a prior murder or murders. [Citation.] The mere desire to lessen or eliminate such tactical decisions in the voir dire of a capital jury, without more, ... does not constitute 'good cause' for deviating from the clear legislative mandate ... that both the guilt and penalty phases of a capital trial be tried by the same jury.” (People v. Nicolaus (1991) 54 Cal.3d 551, 573-574 [286 Cal.Rptr. 628, 817 P.2d 893].)
As respondent points out, if defendant's claim constituted good cause for separate juries, the policy of section 190.4, subdivision (c), would be circumvented in every case in which a prior-murder special circumstance was alleged. In any event, it seems clear that because of the other-crimes evidence deemed admissible in the present case, prudent counsel would voir dire prospective guilt phase jurors-even for a separate guilt phase jury-extensively on their attitudes toward the other-crimes evidence, so that an additional question about actual convictions would add little if any prejudice. Defendant, in fact, does not point to any specific voir dire question that might have informed jurors who served on defendant's jury that defendant previously had been convicted of the murder of Glenna. Finally, the jury was instructed prior to the penalty phase that statutory provisions required they not be informed of the prior murder conviction until after the guilt verdict, out of concern for the defendant's right to a fair trial, that neither defendant nor the prosecution had been permitted to disclose the evidence previously, and that this procedure was not to influence the verdict at the penalty phase.
Similarly, defendant's claim that at the penalty phase the jury might have blamed defendant, because at the guilt phase he denied having committed the murder of Glenna, is speculative and would not constitute good cause requiring separate guilt and penalty phase juries. (See People v. Pride (1992) 3 Cal.4th 195, 252 [10 Cal.Rptr.2d 636');">10 Cal.Rptr.2d 636, 833 P.2d 643] [danger that the jury might blame the defense for failing to disclose prior violent crimes at the guilt phase does not require separate juries].) This danger constitutes a common problem arising out of inconsistent defense strategies at the guilt and penalty phases of trial, yet such inconsistencies do not, without more, constitute good cause for empanelling separate guilt and penalty phase juries. (See People v. Bradford, supra, 15 Cal.4th at pp. 1354-1355, and cases cited; People v. Lucas, supra, 12 Cal.4th at pp. 482-483; People v. Pride, supra, 3 Cal.4th at pp. 252-253; see also People v. Ray (1996) 13 Cal.4th 313, 357 [52 Cal.Rptr.2d 296, 914 P.2d 846].)
We conclude that defendant was not prejudiced by the trial court's error in directing that the motion for separate juries could be entertained only after the guilt phase verdict, and that this error did not implicate his constitutional rights. (See People v. Rowland, supra, 4 Cal.4th at p. 269, fn. 7.)

Catlin, 26 Cal.4th at 113-15.

         The state supreme court reasonably denied the allegations. Petitioner does not point to clearly established Supreme Court law supporting this claim. See Spencer v. Texas, 385 U.S. 554, 656 (1967) (“Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.”) Nor has Petitioner demonstrated that any state law trial court error as to when the motion for separate juries should have been brought is cognizable in federal court and more than harmless. See Estelle, 502 U.S. at 68.

         Particularly, Petitioner has not demonstrated that death qualification in the capital count denied him an impartial jury on the non-capital count. (See claims 60, 61, post); see also McCree, 476 U.S. at 173-184 (death qualification does not violate fair cross-section requirement of the Sixth Amendment or the constitutional right to an impartial jury). As noted, California law also calls for a single jury to determine both guilt and penalty.

         Although the guilt phase jury also had been exposed to hypothetical prior murder conviction voir dire questioning that related to Petitioner's ultimate admission to his conviction for murdering Glenna following the Kern County convictions (see Doc. No. 25 at 192-96), Petitioner has not established that these questions disclosed to prospective jurors the prior conviction for Glenna's murder.

         Petitioner points out that in the Monterey proceeding on Glenna's murder separate guilt and penalty phase juries were used, the result of which was an LWOP sentence. (Doc. No. 25 at 196 citing 1SHCP Ex. 100 at 395, 409.) However, the Monterey County trial judge so ruled based upon the quantum of uncharged crime evidence presented during the Monterey County guilt phase proceeding. (See e.g., 1SHCP Ex. 102 at 112, 183-184, 189-94, 1161.) As discussed ante and post, other and further evidence was presented in the Kern County proceeding, and no judicial estoppel effect arose therefrom as to the Kern County proceeding. Moreover, the trial court gave a limiting instruction regarding “other crimes” evidence. (RT 5353-54.) The jury was informed at the penalty phase of the statutory requirement precluding earlier disclosure of the prior conviction. (Id.) Jurors are presumed to understand and following instructions. Weeks, 528 U.S. at 234.

         Additionally, the state supreme court reasonably could find the uncharged crimes evidence was properly admitted. (See claim 1-5, ante; see also People v. Davis, 46 Cal.4th 539, 626 (2009) (statutory preference for a single jury to decide both guilt and penalty does not violate a capital defendant's federal or state rights to due process, to an impartial jury, or to a reliable death judgment); People v. Prince, 40 Cal.4th 1179, 1087-88 (2007) (good cause to discharge the guilt phase jury in a capital case and to impanel a new one for the penalty phase must be based on facts that appear in the record as a demonstrable reality, showing the jury's inability to perform its function).

         c. Conclusions

         The state supreme court reasonably could find trial court did not err by denying counsel's motion to sever counts I and II and by failing to provide separate juries for the guilt and penalty phases.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of aspects of claims 6 and 19 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The balance of the allegations fails on de novo review, for the reasons stated.

         Claims 6 and 7 shall be denied.

         6. Claims 7, 8 and 9

         Petitioner claims the trial court erred by denying his Batson/Wheeler motion (Claim 7) and his objection the jury did not represent a fair cross-section of the Kern County community (Claims 7 and 8) and by conducting insufficient voir dire to ensure an impartial jury (Claim 9), denying his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 76-96.)

         a. State Court Direct and Collateral Review

         i. Claim 7

         Petitioner's allegations that the Kern County venire pool underrepresented African Americans; the prosecution used peremptory challenges to remove the only (two) African American jurors who made it into the jury box; and the trial court erred in denying counsel's related Batson/Wheeler motion were considered on direct appeal on equal protection grounds and denied on the merits. Catlin, 26 Cal.4th at 115-19.

         The same allegation was raised in the second state habeas petition and denied on procedural grounds including that aspects of the claim other than ineffective assistance of counsel and the constitutionality of the death penalty were raised and rejected on appeal (In re Waltreus). (Order No. S1737');">3793.)

         ii. Claim 8

         Petitioner's allegation that he was denied a jury panel drawn from a fair cross-section of the Kern County community because the venire pool underrepresented Hispanics and African-Americans was raised in his first state habeas petition and denied on the merits and on procedural grounds. (Order No. S090636.)

         The allegation that he was denied a jury panel drawn from a fair cross-section of the Kern County community because the venire pool underrepresented Hispanics and African-Americans, Native Americans, persons with low income, young people, older people, people opposed to the death penalty, and people with less than a college education, was raised in the second state habeas petition and denied on procedural grounds including as raised in the prior state habeas petition (In re Miller). (Order No. S1737');">3793.)

         iii. Claim 9

         Petitioner's allegation that he was denied individual sequestered voir dire and the opportunity to question prospective jurors on their exposure to media concerning the case was raised in the first state habeas petition and denied on the merits. (Order No. S090636.)

         Petitioner presented the allegation in his second state habeas petition and it was denied on procedural grounds including as repetitive of the first state habeas petition (In re Miller). (Order No. S1737');">3793.).

         b. Analysis

         Petitioner claims the trial court erred by denying his Batson motion and empaneling a jury not drawn from a fair cross-section of the community upon voir dire adequate to ensure juror impartiality.

         “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent' jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Skilling, 561 U.S. at 37');">377-78. In a capital case, “a prospective juror may be excluded for cause because of his or her views on capital punishment . . . if the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (citing Adams v. Texas, 448 U.S. 38, 45 (1980)). Thus, “a juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause.” Morgan v. Illinois, 504 U.S. 719, 728 (1992). Likewise, a juror who would automatically impose the death penalty if a defendant is found guilty is not impartial and must be removed for cause. Id. at 733; Ross v. Oklahoma, 487 U.S. 81, 85 (1988).

         The Equal Protection Clause prohibits a prosecutor from using peremptory challenges to exclude potential jurors solely on account of their race, e.g., on the assumption that black jurors as a group are unable to impartially consider the case against a black defendant. Id. at 79.

         Under Batson and its state corollary, Wheeler, in order to contest the discriminatory use of peremptory challenges by the prosecution, a defendant must establish a prima facie case of discrimination by showing circumstances indicating that the exclusion of jurors was based on their race. Batson, 476 U.S. at 1723; Wheeler, 22 Cal.3d at 281. These circumstances include but are not limited to a pattern of striking members of a certain racial group, or voir dire questions that reveal the prosecutor's intent to strike solely for racial reasons. Id. Once a defendant puts forth a prima facie case, the prosecutor must come forward with “clear and reasonably specific” neutral explanations for the peremptory strikes. Id.

         In Purkett v. Elem, 514 U.S. 765, 767 (1995), the Supreme Court provided a three-step Batson analysis: (1) the opponent of the peremptory challenge makes a prima facie showing of racial discrimination, (2) the burden of proof then shifts to the proponent of the strike to present a race-neutral explanation, noting that unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral, and (3) the court then determines whether the opponent of the strike has proved purposeful discrimination. In 1991, the Supreme Court decided Powers v. Ohio, 499 U.S. 400, 402 (1991), which expanded the Batson rule to cases where, as here, the petitioner and excluded jurors are not of the same ethnicity.

         In considering a Batson objection or ruling, all of the circumstances that bear upon the issue of racial animosity must be consulted. Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (citing Miller-El v. Dretke, 545 U.S. 231, 239 (2005');">05)). In the Ninth Circuit, the first prong under Batson, the prima facie showing of racial discrimination, is accorded deferential review in habeas proceedings. Tolbert v. Page, 182 F.3d 677, 682 (9th Cir. 1999).

         Petitioner's allegations, considered separately below, lack merit upon deferential and de novo review, as follows.

         i. Batson/Wheeler

         Petitioner argues the trial court erred by denying his Batson/Wheeler motion based on alleged under representation of African Americans in the venire pool and the prosecution's dismissal through peremptory challenge of the only two African American jurors who made it to the jury box. Ms. Roberson and Mr. Wheeler. (See Doc. No. 25 at 111; see also RT 2871-75.)

         The state supreme court rejected the claim on direct appeal, as follows:

Defendant contended at trial that the prosecutor exercised peremptory challenges against two prospective jurors based upon their race. He moved for a mistrial, citing People v. Wheeler (1978) 22 Cal.3d 258');">22 Cal.3d 258');">22 Cal.3d 258');">22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. The trial court determined that defendant had made a prima facie showing that the prosecutor had excused the prospective jurors on the basis of their race. The prosecutor explained: “[T]he People's reason for excluding Mr. [W.] is because of his statements regarding the death penalty. He says that he believes everyone should live. He says that God is the only one who has the right to take a life. His answer is that if everyone agreed to the death penalty, that he would abide by that, but my interpretation is that he is not a strong believer in the death penalty and that he would be very reluctant to impose that penalty in any type of case [¶] I didn't make a challenge for cause at that time because he did say in some cases he could do it.” The prosecutor explained that his reasoning was the same with respect to the other prospective juror in question, R. He stated that she had doubts about imposing the death penalty, and that she stated she would be reluctant to impose it. He referred to her religious affiliation, stating that his experience was that members of the church “would lean away from imposing the death penalty.” He urged that he was not excusing the two prospective jurors because they were African-American and suggested that apart from their views on the death penalty, he did not view the prospective jurors as pro-defense.
The trial court stated that it was persuaded that the prosecutor had excused the jurors because of their attitude toward the death penalty, and not on the basis of racial bias. The court recalled that the prosecution nearly had succeeded in excusing one of the two jurors for cause because of her attitudes and concluded that statements made by both jurors supported the exercise of peremptory challenges on the basis of their attitude toward the death penalty.
“In [Wheeler] ... we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 79-83, 106 S.Ct. 1712] ... the United States Supreme Court held that such a practice violates, inter alia, the defendant's right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. African-Americans are a cognizable group for purposes of both Wheeler [citation] and Batson [citation].” (People v. Alvarez (1996) 14 Cal.4th 155, 192-193 [58 Cal.Rptr.2d 385, 926 P.2d 365].) Whether a Wheeler or a Batson claim (Batson v. Kentucky, supra, 476 U.S. 79) is raised, “the defendant need not be a member of the group in question in order to complain.” (People v. Alvarez, supra, 14 Cal.4th at p. 193.)4
n.4 Respondent contends that defendant did not refer to Batson or equal protection principles at the time of trial, and that he thereby waived any claim based upon those principles. Because essentially the same standard applies under either Wheeler or Batson (see People v. Alvarez, supra, 14 Cal.4th at p. 193; People v. Clair (1992) 2 Cal.4th 629, 652 [7 Cal.Rptr.2d 564, 05');">05');">828 P.2d 705');">05]), and because defendant fails to persuade us that his rights under the California Constitution were violated, the point is moot.
“This court established in Wheeler, supra, 22 Cal.3d 258');">22 Cal.3d 258');">22 Cal.3d 258');">22 Cal.3d 258, 'that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. We defined group bias as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic or similar grounds. [Citations.]' ... [¶] A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. The high court has explained that the defendant is required to 'raise an inference' that the exclusion was based on group or race bias. [Citation.] Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue.” (People v. Jenkins (2000) 22 Cal.4th 900, 993 [95 Cal.Rptr.2d 37');">377, 997 P.2d 1044].) A prosecutor legitimately may exercise a peremptory challenge against a juror who is skeptical about imposing the death penalty. (People v. Jones (1997) 15 Cal.4th 119, 163, fn. 13 [61 Cal.Rptr.2d 386, 931 P.2d 960], disapproved on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1 [72 Cal.Rptr.2d 656, 952 P.2d 673].)
Defendant contends that the prosecutor did not provide legitimate, nondiscriminatory reasons for excusing the jurors, and claims that the prosecutor believed improperly that because defendant is White, defendant had no basis upon which to object to the exclusion of African-American jurors. Defendant also claims that the prosecutor proffered other discriminatory reasons for excusing the jurors, namely that he excused them on the basis of their religion. He also contends that the trial court rejected his motion without adequate inquiry or reflection.
We have explained that “we review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges 'with great restraint.' ” (People v. Ervin (2000) 22 Cal.4th 48, 74 [91 Cal.Rptr.2d 623');">91 Cal.Rptr.2d 623, 990 P.2d 506].) The trial court's determination is a factual one, and as long as “the trial court makes a 'sincere and reasoned effort' to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal[, ]” when they are supported by substantial evidence. (Id. at pp. 75, 76.)
Prospective Juror R. stated that she was uncertain whether she could decide upon the penalty, observing that: “To tell you the truth, I'm so tenderhearted, I just feel sorry for people[] and it would be kind of hard for me to do.” When asked how she felt about the death penalty, she stated: “If you want to know the truth by me, I hate to see anybody kill anybody.... [B]ut when it come[s] down to, you know, convicting somebody, I just really hate to do it.” When asked whether, as a juror, she could impose either the death penalty or life imprisonment, she said “I don't think I could. I don't feel like I could.” Regarding imposing the death penalty, she said: “I guess if I was on [a] jury and I had to I could go ahead and do it, but I would hate to do it.” She repeated this reservation under questioning by defense counsel. She elaborated that she was tenderhearted and that the death penalty “is killing somebody, ” and that she would have compassion for defendant because she would imagine one of her own relatives in his position. Responding to questions by the prosecutor, she later stated that she would not join 11 other jurors in imposing the death penalty and that she truly did not believe she could vote for the death penalty in any case. She stated that she was religious and that she thought that imposing the death penalty violated the commandment “Thou shalt not kill.” “My feeling and my religion don't agree for me to do things like that.” The court overruled the prosecutor's challenge for cause, stating: “She said that she would, if the evidence was sufficiently strong, she could impose the death penalty, very obviously reluctant to do so, but I think this is more a factor to be considered in peremptory challenges. I think she could not be excused for cause ....” The juror's statements very clearly reflect serious reservations about the death penalty, a race-neutral ground upon which the prosecutor legitimately could exercise a peremptory challenge.
Prospective Juror W. stated that “I belong to what's called the Church of Christ. God, I believe, is the only person that has the right to take someone's life.” He also stated that he believed in the commandment “Thou shalt not kill” and seemed to feel that the state should abide by that rule.
The record supports the conclusion that the trial court made a “sincere and reasoned effort” to evaluate the prosecutor's justifications, and substantial evidence supports its conclusion that the prosecutor had race-neutral reasons for excusing the two jurors. That the jurors were equivocal about their ability to impose the death penalty was relevant to a challenge for cause, but did not undercut the race-neutral basis for the prosecutor's decision to excuse the prospective jurors peremptorily. References to religion did not reflect bias against a particular religion or against religion in general, but rather a concern that the prospective jurors' religious beliefs would make them reluctant to impose the death penalty. This concern was a permissible ground for the exercise of a peremptory challenge. (People v. Ervin, supra, 22 Cal.4th at p. 76.) The prosecutor's statements concerning defendant's ethnic group did not suggest that the prosecutor excused the jurors because of their race, but were offered as further proof that the prosecutor had not acted out of racial bias. Even assuming the prosecutor was confused on this point, the trial court's statements did not reflect that it doubted that a White defendant has standing to raise a Sixth Amendment challenge to the exercise of peremptory challenges against African-American jurors. Finally, the court's statements indicate that it carefully reviewed defendant's motion, and further inquiry or statements on the record were not required. (See People v. Cummings (1993) 4 Cal.4th 1233, 1282 [18 Cal.Rptr.2d 796, 850 P.2d 1].)5
n.5 We reject, as we have in the past, defendant's contention that we should compare the responses of jurors who were excused with the responses of those who were not excused in analyzing whether the trial court's reasoned effort to evaluate the prosecutor's claims satisfied Wheeler and Batson. (People v. Ervin, supra, 22 Cal.4th at p. 76; People v. Jones, supra, 15 Cal.4th at p. 162.)
Defendant contends that although the trial court determined that the prosecutor had proffered race-neutral reasons for excusing the two prospective jurors, the court failed to determine whether the prosecutor actually was motivated by these neutral reasons. (See People v. Alvarez, supra, 14 Cal.4th at pp. 197-198.) We believe that the statement of the trial court belies this claim. The court observed in denying defendant's motion: “However, the explanations offered by [the prosecutor] convince the Court that excusing Mr. [W.] and Mrs. [R.] was not because of their race but was based on permitted reasons for exercising peremptories, and that is their attitude toward the death penalty.”

Catlin, 26 Cal.4th at 115-19.

         Petitioner has not shown the state supreme court unreasonably rejected these allegations.

         Petitioner argues the prosecutor made purposefully discriminatory use of preemptory challenges to remove Adell Roberson and George Wheeler, the only two African American potential jurors remaining in the jury box (RT 2871-75). He argues the prosecutor's race neutral reasons for the strikes were pretextual and improperly based upon the religion of these jurors. (See RT 2874.) He argues the trial court did not make the requisite detailed and reasoned inquiry into the prosecutor's justifications. See People v. Fuentes, 54 Cal.3d 707, 715 (1991) (the trial court must make “ 'a sincere and reasoned' ” attempt to evaluate the prosecutor's justifications.”).

         (1) Race-Neutral Reasons to Challenge

         The record reflects three African-Americans were seated in the jury box; the prosecutor struck two, and counsel struck one. (RT 2871-2873.) The trial court held a Batson inquiry regarding the peremptory challenge of Ms. Roberson and Mr. Wheeler. See Catlin, 26 Cal.4th at 115-119. The prosecutor posited race neutral reasons for his peremptory challenges, pointing to answers provided during death qualification voir dire. He stated that he challenged Ms. Roberson because:

[S]he was a Pentecostal. We have had other Pentecostals that would lean away from imposing the death penalty. She made the statement that she would be reluctant to do it [vote for the death penalty]. It was almost like she could only do it [vote for death penalty] if you forced her.

(RT 2874.)

         The prosecutor explained that he challenged Mr. Wheeler because:

He says that God is the only one who has the right to take a life. His answer is that if everyone agreed to the death penalty, that he would abide by that, but my interpretation is that he is not a strong believer in the death penalty and that he would be very reluctant to impose that penalty in any type of case.

(Id.)

         The trial court then denied the Batson/Wheeler motion, finding that “jurors Roberson and Wheeler were challenged not because of their race, but because of their views toward the death penalty, a permissible reason for excluding them.” (Doc No. 25 at 116 citing RT 2871-75.)

         The state supreme court reasonably could find both Roberson's and Wheeler's views on capital punishment would have prevent or substantially impair their performance of the duties of juror in accordance with the court's instructions and the juror's oath. See Witt, 469 U.S. at 423-24. The trial judge's findings in this regard is entitled to deference. See Morales v. Mitchell, 507 F.3d 916, 941 (6th Cir. 2007) (isolated statements indicating an ability to impose the death penalty do not suffice to preclude the prosecution from showing that, taken together, the responses show a lack of ability or failure to comprehend responsibilities as a juror).

         Petitioner concedes these two prospective jurors expressed scruples over the death penalty including on religious grounds, but he argues they each expressed the ability to impose the death penalty where the judge's instructions and the evidence warranted. (See RT 1019-37');">37 re Roberson; RT 1266-78 re Wheeler). He points out that potential juror Roberson stated during voir dire and death qualification that although hard for her, she could following instructions (see RT 1019-38); that she felt “no different as to the life sentence than the death penalty” (RT 1028); and that she might impose the death penalty “if [the evidence was] strong enough” (RT 1035). He points out the prosecutor's for cause challenge of Ms. Roberson was denied. (RT 1037');">37.)

         He points out that similarly, potential juror Wheeler stated during voir dire and death qualification that he believed he could impose the death penalty where the evidence so warranted (RT 1269), such that the prosecutor passed on Wheeler for cause (RT 1278).

         However, Roberson and Wheeler each made statements reasonably suggesting an inability to perform as juror in a capital case. Roberson stated that “I don't want to see nobody kill nobody” (RT 1022); that “I don't think I could [impose the death penalty or life imprisonment without parole based on the evidence” (RT 1023); that “like I say, I've got a heart and I just feel if a death penalty, you know, is killing somebody …”; (RT 1029); that “I really don't think I would [cast the last vote for death because] it would be too much on my conscience” (RT 1032); that voting the death penalty “would be violating [the commandment “though shalt not kill” (RT 1033); that “my feeling and my religion don't agree for me to do things like [impose the death penalty]” (RT 1034-35).

         Wheeler stated that “I've never really thought about the death penalty” but he “believe[s] everyone should live” (RT 1268); that he “belong[s] to what's called the Church of Christ. God, I believe, is the only person what has the right to take someone's life. That's just the way I feel, but I have seen instances where I thought maybe a person should” (RT 1271); that he believes “the commandment Thou shalt not kill” (RT 1275).

         Furthermore, that court reasonably could find the prosecutor, during the Wheeler motion, did not imply a racially discriminatory animus. Petitioner points to the prosecutor's statement in support of striking potential juror Wheeler that:

This is a white defendant, I believe that it would probably be beneficial for the defense to have a white jury if they anticipate that his criminal activity is the result of some type of poor childhood, because I don't think that would be very acceptable to someone who has had to suffer discrimination during their entire life.

(RT 2874.) Petitioner argues this statement implies that Roberson and Wheeler were challenged on the basis of race (Doc. No. 25 at 119), or that the trial court and prosecutor erroneously believed that as a Caucasian, Petitioner could not bring a Batson/Wheeler challenge for the removal of an African American juror (id., at 111-12).

         However, the state supreme court reasonably could find the prosecutor was supporting race neutral challenge by pointing out that striking African Americans provided no strategic advantage to the prosecution and did not purposefully discriminate on the basis of race. Petitioner's suggestion the trial court and prosecutor errantly believed he lacked standing to raise exclusion of another race is based only on speculation. See Holland v. Illinois, 493 U.S. 474, 476 (1990) (“[T]he threshold question is whether petitioner, who is white, has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. We hold that he does.”); see also People v. Allen, 212 Cal.App.3d 306, 316 (1989) (“The exclusion of disproportionate numbers of minority jurors per se” does not automatically establish a prima facie case of discrimination under Wheeler); cf. Johnson v. California, 545 U.S. 162, 172-73 (2005');">05) (inference of discriminatory statistical disparity found where African-American petitioner being tried for murdering his Caucasian girlfriend's daughter objected to prosecutor's challenge of all three African-American's on the jury panel).

         (2) Comparative Juror Responses

         Petitioner argues that had the trial court compared responses of Roberson and Wheeler to those of non-minority jurors who were retained, the prosecution's racial motivation in striking Roberson and Wheeler would have been apparent. (See Doc. No. 95 at 112-13; see also Murray, 745 F.3d at 1005');">05 (review of a Batson claim under AEDPA often will require a formal comparative juror analysis); Lewis v. Lewis, 321 F.3d 824, 830-831 (9th Cir. 2003) (comparative analysis “is a well-established tool” for exploring the possibility race-neutral reasons are a pretext for discrimination); see also Miller-El v. Cockrell, 37');">37 U.S. 322');">537');">37 U.S. 322, 331 (approving “comparative analysis of the venire members demonstrates that African-Americans were excluded from petitioner's jury in a ratio significantly higher than Caucasians were”).

         Petitioner argues the record on voir dire does not suggest the excluded potential jurors were biased against the death penalty. (Doc. No. 25 at 114.) He observes that “[a] prosecutor's disparate treatment of the members of the excluded group and the unchallenged jurors who have the same characteristics has been deemed to constitute a strong indicator of group bias. (Doc. No. 25 at 116; see also Lewis, 321 F.3d at 832 (finding “a comparative analysis of [the struck juror] with empaneled jurors reveals that a finding of pretext was warranted.”).

         However, the state supreme court reasonably could find that Petitioner has not demonstrated comparative juror analysis was clearly established law at the time Petitioner's decision became final on April 7, 2002.[14] See Miller-El, 537');">37 U.S. at 331.

         Furthermore, the state supreme court reasonably could find the jurors selected by Petitioner for comparative analysis not to suggest purposeful discrimination by the prosecution given the facts and circumstances in this case.

         Petitioner points in comparison to trial juror Patricia Bolen, a Caucasian who like Roberson was a Pentecostal and referenced church doctrine including forgiveness. (See Doc. No. 25 at 112; RT 683-84, 2874.) However, the record suggests Bolen showed no scruples about imposing the death penalty. (RT 674-81), she stated that she “believe[s] strongly in the death penalty [in certain circumstances such as premeditated murder] but “would like to hear [mitigating evidence] (RT 688).

         Petitioner points in comparison to prospective juror Lewis Tucker (RT 2252-69) who was not an empaneled juror. (Doc. No. 25 at 118.) Tucker, a Pentecostal minister, stated that although he “invariably” followed the scripture (RT 2252), as to the death penalty he did not see any “conflict of belief or interest” (RT 2255); did not oppose capital punishment for premediated killing (RT 2255-61); and would choose death or life in prison without parole based upon the evidence (id.). Tucker stated that “the Bible carries out death penalties under certain circumstances (RT 2267) and that he did not consider execution by the state to be immoral or the equivalent of murder (RT 2269). Tucker stated that “if it was a crime that required death, then I would give it.” (RT 2267-69.)

         Petitioner points in comparison to alternate juror Sandra Greemore, a Caucasian, whom he suggests gave equivocal answers when asked whether she could impose the death penalty. (See RT 2166-71; CT 328; 2 Supp. CT 328.) However, Greemore that she did not have set feelings about the death penalty (RT 2166) would keep an open-mind at the penalty phase consider mitigating evidence (RT 2157-64). She suggested religious beliefs would not influence her penalty verdict (RT 2166), she appeared unequivocal that she was not averse to imposing the death penalty where warranted. (RT 2166-71.) Greemore stated that she would not have a problem imposing the death penalty if she felt strongly about it (RT 2170), rather than avoiding imposing the death penalty. (RT 2171.)

         Given the foregoing, the state supreme court reasonably could find Batson does not require anything more than what the prosecutor put on the record. Purkett v. Elem, 514 U.S. 765, 767-69 (1995). (Doc. No. 88 at 298 21-27.)

         ii. Fair Cross-Section of the Community

         Petitioner argues the trial court denied him a petit jury drawn from “fair cross-section” of the population of Kern County in 1990. (Doc. No. 25 at 121-28, citing Powers, 499 U.S. at 422.) He argues standing to raise these grounds notwithstanding he is Caucasian. (Id.) He argues that at the time of his trial:

The Kern County venire systematically under represented Latinos, African-Americans, Native Americans, persons with low income, young people, older people, and people with less than a college education … [and] those who had any opposition to the death penalty, including religious people, African-Americans, other minorities, and women.

(Doc. No. 25 at 121.)

         Petitioner contends under representation of these groups made his Kern County proceeding fundamentally unfair, structural error. (Id.) He argues particularly that in 1990, Kern County's use of voter registration lists and DMV records as the two main sources for the jury master list resulted in under representation and systematic exclusion of Hispanics and African Americans from the venire. He argues that these sources used to form a jury master list in Kern County in 1990 were not representative of the population in Kern County.

         The record reflects that counsel moved in limine for a county-wide jury panel including prospective jurors from East Kern County whom he stated were excused under informal rule. Petitioner argued a panel drawn only from the Bakersfield area was insufficient to ensure an impartial jury. (RT 15-17, 42-43; CT 1838.) The trial court denied the motion, stating that:

The motion for the county-wide panel is denied. First of all the clerk of this Court has reminded me that several of the recent jury trials held in this courtroom, we have had people serve on the juries from Ridgecrest, which is East Kern County, they did not involve offenses which occurred in the east side of the county; so in practice, it seems that we are getting East Kern jurors into these trials.
I understand that the Board of Supervisors has directed the Jury Commissioner to limit jury summons for trials in Bakersfield to 75 miles from Bakersfield which includes portions of East Kern, with the exception most notablely [sic] of the city of Ridgecrest, which is one hundred and twenty miles from Bakersfield. The Court is of the opinion that the greater percentage of the county population which is estimated at about five hundred and fifty thousand, that around thirty hundred thousand [sic] of that is located around the Bakersfield area, that the city of Ridgecrest which is approximately 30 thousand, comprises the appropriate population of East Kern. There is no discrimination against the defendant by using persons within 75 miles.
As to the code section, Civil Procedure Section 191, that's the initiation of state policy that deals with opportunities and obligation of the citizens to serve as trial jurors, in my opinion does not establish any statutory rights as far as any particular defendant is concerned in a jury trial. The courts [sic] is of the opinion that Mr. Catlin will receive a fair representation of the citizens of this county by the present system and the motion is denied.

(RT 44-45.) That court noted that Petitioner “has presented no demographics that Eastern Kern County people are different than Western Kern County people. (RT 44.)

         On habeas, Petitioner argues statistical data suggesting at that time of his trial in 1990, Hispanics comprised 28% of the Kern County population and 19% of the voting age population, while African Americans comprised 5.5% of the total population and 3.7% of the voting age population. (Doc. No. 25 at 124-25.) He argues that in his case, approximately 8.6% of the 140-person venire was comprised of Hispanics and approximately 1.4% of that venire consisted of African Americans. (Doc. No. 25 at 124 citing RT 2873.) He argues that only two such jurors were left in the petit jury and both were removed by prosecution peremptory challenges. (RT 2871-2873.)

         Petitioner argues these statistics show unconstitutional underrepresentation, i.e. that the absolute disparity between the voting Hispanic population and the number of Hispanics in his venire pool is 10.4%, exceeding the Ninth Circuit 7.7% benchmark for constitutional error. (Doc. No. 25 at 126 citing See United States v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir. 1989); United States v. Cannady, 54 F.3d 544, 548 (9th Cir. 1995)). He argues this disparity resulted from unconstitutional systematic exclusion of these groups from the jury selection process. Duran v. Missouri, 439 U.S. 357, 366 (1979).

         (1) Impartial Jury Drawn from Fair Cross-Section

         The Sixth Amendment guarantees trial by a jury drawn from a representative cross-section of the community. United States v. Torres-Hernandez, 447 F.3d 699, 703 (9th Cir. 2006); Batson, 476 U.S. at 96-98; see also Taylor v. Louisiana, 419 U.S. 522, 526-27 (1975) (“The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.”).

         A defendant asserting violation of the fair cross-section requirement must show (1) that the group alleged to be excluded is a ‘distinctive' group in the community; (2) that the representation of this group in venires from which jurors are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364.

         Once a defendant establishes a prima facie case, the burden shifts to the government to show that a significant state interest is “manifestly and primarily advanced by those aspects of the jury -selection process ... that result in the disproportionate exclusion of a distinctive group.” See U.S. v. Rodriguez, 924 F.Supp.2d. 1108, 1118 (C.D. Cal. 2013) (quoting Duren, 439 U.S. at 367-68).

         In this case, the state supreme court reasonably could find that Petitioner's argued statistical disparity in venire representation of Hispanics and African Americans insufficient to show systematic exclusion of these groups in the jury-selection process.[15] (See Doc. No. 95 at 117-18); see also Sanders v. Woodford, 37');">373 F.3d 105');">054, 1070 (9th Cir. 2004) (judgment reversed on other grounds by Brown v. Sanders, 546 U.S. 212 (2006). Petitioner's statistics do not reflect the number of members of these groups who were then eligible for jury service. See Torres-Hernandez, 447 F.3d at 703-04 (“[T]o prove Hispanics are underrepresented in a given district's jury pools, the ultimate basis for comparison is the district's actual percentage of jury-eligible Hispanics.”).

         This Court previously considered and rejected Petitioner fair cross-section allegation based upon the same data presented in this case, stating that:

The statistics relied on by Montiel are figures compiled by Dr. Terry Newell from a study of Kern County venires from 1980 to 1981, which were previously presented in the federal habeas petition of Ronald Sanders. The Ninth Circuit rejected Sanders' claim, asserting Dr. Newell's study was highly likely to have substantially overstated the disparity between the percentage of Hispanics in the county and in the jury venire, as no attempt was made to control for illegal immigration. See Sanders v. Woodford, 37');">373 F.3d 105');">054');">37');">373 F.3d 105');">054, 1069-70 (9th Cir.2004) (overruled on other grounds by Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006)). Another under-representation challenge which was based the comparison on the number of Hispanics in the jury venire versus the total population, was also rejected by the Ninth Circuit because the relevant comparison population to the venire should have been the number of Hispanics who were jury-eligible citizens, not the total population. United States v. Artero, 121 F.3d 1256, 1262 (9th Cir.1997).
[---]
No published court decisions, empirical studies, or statistics of the racial composition of Kern County jury panels, trial juries or jury selection practices are offered. Even if such alleged discriminatory jury selection practices existed in the Kern County District Attorney's office, no objective evidence shows it impacted Montiel's trial.
Montiel's proffered statistics of 8.0% absolute disparity between adult Hispanics in the total population and the Hispanics on the jury venire is not significantly greater than the 7.7% disparity found by the Ninth Circuit to be within allowable limits. United States v. Suttiswad, 696 F.2d 645, 650 (9th Cir.1982).
In addition, Montiel offers only these statistics to prove systematic exclusion. This evidence is substantially less persuasive than evidence which has been found to show unconstitutional discrimination. A disparity of 14% combined with the government's stipulation that no black had served on any jury in the county in the past 25 years was sufficient to show purposeful discrimination. Hernandez v. State of Texas, 347 U.S. 475, 480-81, 74 S.Ct. 667, 98 L.Ed. 866 (1954). A trio of cases from Georgia found that disparities ranging from 14.7% to 19.7% were sufficient when combined with jury selection procedures using tax rolls which required blacks to file on yellow paper and whites on white paper. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967). Similarly, a 16% disparity combined with selection process which identified race on the jury form constituted prima facie evidence of discrimination. Alexander v. Louisiana, 05');">05 U.S. 625');">405');">05 U.S. 625, 63031, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972).
None of the evidence Montiel presented to the state court, nor proposes to present in support of this claim, presents a prima facie case that the fair cross-section requirement was violated.

Montiel v. Chappell, No. 1:96-CV-05');">05412-LJO, 2014 WL 6686034, at *83-84 (E.D. Cal. Nov. 26, 2014).

         Furthermore, Petitioner has not made out a prima facie case under the third Duren prong to the extent he failed to allege what procedures Kern County utilized to systematically exclude these groups.

A showing that a jury venire underrepresents an identifiable group is, without more, an insufficient showing of systematic exclusion under the third prong of the Duren test. If underrepresentation by itself were sufficient to support a holding of unconstitutionality, the second and third prong of Duren would effectively collapse into one inquiry.

Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004). Petitioner reasonably failed to satisfy Duren's third prong because he failed to demonstrate the alleged underrepresentation of Hispanics and African Americans is due to the system Kern County uses to assemble the venire.” Id. He failed to allege with any sufficient specificity the process by which jurors were selected for Kern County venires. Notably, Petitioner does not account for Kern County's jury selection systematic practices in 1990 including its use of Department of Motor Vehicles data in addition to voter registration records. (See 1SHCP at 59-65; 1SHCP Ex. 18.)

         To the extent Petitioner argues he was denied a Sixth Amendment fair cross-section as to his petit jury, the claim fails, and the state supreme court reasonably could so find. The fair cross section requirement applies only to the larger jury pool or venire and is not applicable to petit juries. See McCree, 476 U.S. at 173-74.

         The Supreme Court has found that the Constitution does not demand a precisely proportional representative jury, but only a non-discriminatory process by which to choose a jury [that fairly and reasonably represents cognizable groups in the community. Holland, 493 U.S. at 480. The California Supreme Court has found it sufficient to obtain prospective jurors from voter registration lists, records or registered drivers, and holders of state ID cards). People v. Burgener, 9 Cal.4th 833');">29 Cal.4th 833, 857 (2003).

         For the reasons stated, Petitioner has not demonstrated he was denied a jury drawn from a representative cross-section of the community, and the state supreme court reasonably could so find.

         (2) Fifth Amendment Challenge to Venire

         To establish a violation of the Fifth Amendment right to equal protection, “the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.” Castaneda v. Partida, 430 U.S. 482, 494 (1977). To establish a prima facie equal protection claim, the defendant must (1) show the group is “a recognizable, distinct class, singled out for different treatment under the laws . . .”; (2) “prove the degree of underrepresentation, by comparing the proportion of the group in the total population to the proportion called to serve as ... jurors, over a significant period of time”; and (3) show “a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” Id.; accord U.S. v. Hernandez-Estrada, 749 F.3d 1154, 1166 (9th Cir. 2014).

         Once a defendant establishes a prima facie case, the burden shifts to the government to rebut the presumption “by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Castaneda, 430 U.S. at 494.

         In this case, Petitioner does not show underrepresentation of an identifiable group to which he belongs. He does not show Kern County's jury selection procedure is susceptible of abuse or not racially neutral, or any other discriminatory intent on the part of Kern County.

         The Ninth Circuit has rejected the proposition that “the mere susceptibility of a selection procedure to abuse, even where accompanied by evidence that a given group is substantially underrepresented on a single venire, establishes a prima facie case of intentional discrimination as a matter of law.” Hirst v. Gertzen, 676 F.2d 1252, 1258 (9th Cir.1982).

         iii. Voir Dire To Ensure Impartial Jury

         Petitioner argues the trial court denied him the voir dire necessary to ensure an impartial jury. (Doc. No. 25 at 129; see also Doc. No. 95 at 120.)

         Petitioner argues the trial court improperly denied the parties' request for individual sequestered voir dire or counsel questions and/or questionnaires regarding hidden biases including as related to media exposure and/or strong feeling in the community about issues in Petitioner's case and/or close ties to law enforcement and/or religious influences. (Doc. No. 25 at 129-31 citing RT 13-15); Irvin, 366 U.S. at 722 (the right to jury voir dire sufficient to give reasonable assurances that the jury will be impartial); United States v. Jones, 722 F.2d 528, 529-530 (9th Cir. 1983) (specific questioning may be needed to ensure impartial jury where the case involves matters commonly known to harbor strong feelings in the community significantly skewing deliberations).

         Especially so here, he argues, given trial issues relating to domestic violence, matricide and violence against women and potential hidden juror biases in relation thereto as suggested by juror habeas declarations. (See Doc. No. 25 at 130; see also Doc. No. 95 at 119 citing 1SHCP Ex.'s 145-150.)

         “[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan, 504 U.S. at 729. “Voir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.'” Ristaino v. Ross, 424 U.S. 589, 594 (1976) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)). “[T]he trial court retains great latitude in deciding what questions should be asked on voir dire.” Mu'Min v. Virginia, 500 U.S. 424, (1991). No. hard-and-fast formula dictates the necessary depth or breadth of voir dire, see United States v. Wood, 299 U.S. 123, 145-46 (1936), and “[t]he Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” Morgan, 504 U.S. at 729.

         A trial court's failure to ask certain questions does not violate the Constitution unless it “render[s] the defendant's trial fundamentally unfair.” Id. at 426.

         Two specific inquires of voir dire are constitutionally compelled: inquiries into racial prejudice against a defendant charged with a violent crime against a person of a different racial group, id. at 424; and, in a capital case, inquiries into a juror's views on capital punishment. Morgan, 504 U.S. at 730-32. Detailed questioning on publicity is not constitutionally required. Mu'Min v. Virginia, 500 U.S. 415, (1991).

         State law vested the trial court with discretion to limit voir dire so long as counsel had an opportunity to participate in the process of selecting an impartial jury. See e.g., People v. Hardy, 2 Cal.4th 86, 130-32 (1992).

         Here, the record reflects that counsel was not denied an opportunity to participate in general voir dire and the records suggests otherwise. (See e.g., RT 393-404, 413-22, 436-42, 556-58, 596-606, 675-82, 846, 1002, 1640-49, 1773-82.) While counsel's request for a written juror questionnaire (RT 13-14) was denied by the trial court as not worth the extra time and effort (RT 41-42), Petitioner fails identify clearly established Supreme Court precedent that juror questionnaires are required.

         Additionally, Petitioner has not demonstrated his jury was partial due to pretrial publicity, racial bias, or pro-death penalty bias; or that defense counsel was denied an opportunity to probe such issues during voir, for the reasons discussed in claim 26(E) below. See McCree, 476 U.S. at 178 (quoting Wainwright, 469 U.S. at 423) (“[A]n impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts.”); Cf., United States v. Baldwin, 607 F.2d 1295, 1298 (9th Cir. 1983) (counsel denied opportunity at voir dire to meaningfully question on sources of likely prejudice).

         iv. Conclusions

         The state supreme court reasonably could find trial court did not err by denying his Batson/Wheeler motion and his jury objection on fair cross-section and equal protection grounds and by conducting voir dire to ensure an impartial jury.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claims 7, 8, and 9 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The balance of the allegations fails on de novo review, for the reasons stated.

         Claims 7, 8, and 9 shall be denied.

         7. Claims 10, 11, 12 and 13

         Petitioner claims the trial court erred by engaging in ex parte communications with jurors in the jury room (Claim 10), off the record and without notice to and the presence of counsel (Claim 11), without the presence of Petitioner (Claim 12), and by failing to declare a mistrial based upon resulting juror bias (Claim 13), regarding an incident where juror Christine McAvoy Sherman (hereinafter “McAvoy”) was allegedly stalked and intimidated by prosecution witness and jailhouse informant Hardin, violating Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 132-42.)

         a. State Court Direct and Collateral Review

         i. Claim 10

         Petitioner's allegation that the trial court's ex parte communication with jurors violated constitutional rights was raised in the first state habeas petition on Sixth, and Fourteenth Amendment grounds and denied on the merits. (Order No. S090636.)

         These allegations were raised in the second state habeas petition on the same and Eighth Amendment grounds and denied on the merits and on procedural grounds as repetitive. (In re Miller). (Order No. S1737');">3793.)

         ii. Claim 11

         Petitioner's allegation that the trial court's jury room discussion of witness Hardin's alleged intimidation of juror McAvoy without the knowledge and presence of counsel violated the Sixth and Fourteenth Amendments was raised in the first state habeas petition and denied on the merits. (Order No. S090636.)

         The same allegation was raised in the second state habeas petition on Fifth, Sixth, Eighth and Fourteenth Amendments grounds and denied on procedural grounds as repetitive (In re Miller). (Order No. S1737');">3793.)

         iii. Claim 12

         Petitioner's allegation that he was denied the right to be present during a critical stage of the proceeding, i.e., during the noted ex parte incident, was raised in the first state habeas petition on Sixth, and Fourteenth Amendment grounds and denied on the merits. (Order No. S090636.)

         The allegation asserting Fifth, Sixth, Eighth, and Fourteenth Amendment grounds was raised in the second state habeas petition and denied on procedural grounds including repetitive of the first state petition (In re Miller). (Order No. S1737');">3793.)

         iv. Claim 13

         Petitioner's allegation that the trial court erred by failing to declare a mistrial was raised in the first state habe as petition on Fifth, Sixth, Eighth, and Fourteenth Amendment grounds and denied on the merits. (Order No. S090636.)

         The same allegation and constitutional grounds were raised in the second state habeas petition and denied on procedural grounds including as repetitive of the first state petition (In re Miller). (Order No. S1737');">3793.)

         b. Analysis

         Petitioner alleges the trial court erred by engaging in ex parte communication with jurors in the jury room outside the present of counsel and Petitioner and by failing to declare a mistrial based thereon.

         The claims lack merit upon deferential and de novo review, as follows.

         i. Denial of Impartial Jury

         Petitioner argues the trial judge improperly interviewed juror Christine McAvoy about her report to a bailiff being stalked by prosecution witness Conward Hardin as she walked home from the courthouse, tainting McAvoy and the entire jury with unconstitutional bias. (See claim 14, post; see also 1SHCP Ex. 148.) He argues the interview took place in the jury room, off the record, in the presence of the other jurors and outside his presence and that of counsel, denying him due process, a fair trial, the assistance of counsel, confrontation of witnesses, and a reliable verdict. (Doc. No. 25 at 132; see also 1SHCP Ex.'s 145, 148, 198.)

         The trial judge told McAvoy “this won't be tolerated” (Doc. No. 25 at 132; see also 1SHCP Ex. 148), left and returned soon thereafter to inform McAvoy that witness Hardin was supposed to be taking the bus to Fresno (id.) and reassured her that she was safe (id.).

         Petitioner argues the stalking incident was an attempt to intimidate and influence juror McAvoy (id.) and that McAvoy was frightened and biased as a result (id.) He argues Hardin had testified on the day of the alleged stalking that he had been arrested for violent assaults on his girlfriend and for false imprisonment. (Doc. No. 25 at 146 citing 1SHCP Ex. 148.) Petitioner suggests that the trial judge likely contacted witness Hardin and law enforcement. (Id.) He argues that the trial judge never informed defense counsel of this incident or the judge's role in it. (Doc. No. 25 at 133.)

         Petitioner argues he had a right to be present when the judge questioned juror McAvoy about this incident and might have removed her from the jury as a result. See United States v. Gay, 522 F.2d 429, 435 (9th Cir. 1975) (district judge erred by engaging in discussions with members of the jury after it was impaneled regarding excuses out of the presence of the defendant and without giving notice to defense counsel).

         Petitioner argues structural error from this incident because the extent to which the jury was tainted was never determined; he had no opportunity to confront the jurors and trial judge regarding the incident and ex parte communication between judge and jury; and he had no opportunity to make appropriate motions, juror challenges, and move for a mistrial. (Doc. No. 25 at 133 citing United States v. Thompson, 827 F.2d 1254, 1259 (9th Cir. 1987) (absent compelling justification, ex parte proceedings are “anathema in our system of justice and, in the context of a criminal trial, may amount to a denial of due process.”); Id. at 134 citing Remmer v. United States, 347 U.S. 227, 229 (1954) (in a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial).

         The record reflects that McAvoy, in her habeas declaration, stated that:

I did have one scary experience during the trial when a witness followed me home one day. The witness was the kid who had been in jail with Catlin. He was the guy who talked about “baseball bats.” I got the impression from his testimony that he was still in custody, so I was terrified when he followed me the same day he testified. I first noticed him when I was walking down Truxton Avenue. At first, he was on the opposite side of the street, then he crossed to my side of the street. I crossed the street to get away from him and he followed me across. After hearing his testimony about baseball bats, I was quite frightened. He appeared intimidating. After he had followed me for five of six blocks I went into the post office for about twenty minutes waiting for him to go. When I came out, he was gone. I was still so scared that I went home a roundabout way to be sure he did not learn where I lived. After I got home, I told my kids that they could not go out to play. I did not want that guy even seeing my family.
The next morning, as I recall, I told the bailiff about this witness following me. Judge King came into the jury room and asked me some questions about the incident in the presence of the other jurors. He said something like “This won't be tolerated.” The judge went back into his chambers. A half hour later, the judge came back to the jury room and said the witness was supposed to be taking the bus to Fresno. He assured me that nothing would happen to me. I do not recall any defense attorney being present.

(1SHCP Ex. 148.)

Juror Terrazas mentioned the incident in her habeas declaration, as follows
I remember that one of the lady jurors was followed by the jail house informant who testified against Catlin. I think the judge was alerted to the problem.

(1SHCP Ex. 145.) Similarly, alternate juror Sandra Greemore stated on habeas that she “remember[ed] hearing that one of the jurors was followed home one day by a witness.” (1SHCP Ex. 198.)

         The state supreme court reasonably rejected aspects of the allegations and the allegations otherwise lack merit on de novo review.

         While the trial court generally should disclose trial related ex parte communications to counsel, see e.g., Rushen v. Spain, 464 U.S. 114, 119 (1983), Petitioner has not demonstrated that here any such error was structural, see Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991), or more than harmless. Brecht, 507 U.S. at 630, noting Chapman's harmless beyond a reasonable doubt standard.

         The alleged stalking incident, if it were harmful, was more likely to prejudice the prosecution than the defense. Hardin was a prosecution informant witness and his actions reasonably would be attributable to the prosecution.

         Moreover, it does not appear the ex parte encounter occurred during jury deliberations, involved law or evidence, or that the encounter occurred during a critical stage of the trial so as to implicate the right to counsel. The trial judge's explanation that Hardin was headed for the bus station suggested the possibility he coincidentally took the same route as McAvoy. Notable Hardin and McAvoy did not make contact or exchange words. Nothing in the records shows Hardin was aware of McAvoy at the time of the alleged encounter. Petitioner alleges but fails to support on the record that the trial judge admonished McAvoy and the other jurors and considered changing the composition of the jury.

         Additionally, the jury was expressly instructed to decide the case based upon the evidence (RT 5297-5301) and to follow the instructions given them (CT 1926-28). Petitioner has not demonstrated on the record that any juror disregarded the instructions because of the ex parte incident, or that deliberations were impacted by it.

         ii. Denial of Right to Counsel

         Petitioner argues the trial court erred by excluding counsel (Eyherabide and Dellostritto) from the ex parte interview of juror Christine McAvoy about her alleged “intimidation” by prosecution witness Hardin. (Doc. No. 25 at 136.)

         Petitioner argues the ex parte communication following the alleged event of witness intimidation was a “critical stage” of his proceeding, i.e. a stage concerning whether the composition of the jury would change, at which he was not represented by counsel. (See Doc. No. 25 at 136-37');">37 citing Arizona v. Washington, 434 U.S. 497, 503 (1978) (defendant has a “valued right” to have his trial completed by the jury he selected); id. citing United States v. Wade, 388 U.S. 218, 226 (1967) (the right to counsel attaches whenever “counsel's absence might derogate from the accused's right to a fair trial.”). He argues that denial of counsel is per se reversible error. (Doc. No. 25 at 137');">37 citing United States v. Cronic, 466 U.S. 648, 659 n.25 (1984); see also Doc. No. 95 at 128-29.) In the alternative, he argues prejudice under Brecht. (See Doc. No. 25 at 137');">37.)

         The Ninth Circuit has observed that:

The right to a public trial under the Sixth Amendment, “taken together with the right to due process, includes a right of . . . defendant[] and [his] counsel to be present at all stages of the trial from arraignment to verdict and discharge of the jury.” Polizzi v. United States, 550 F.2d 1133, 1137');">37 (9th Cir. 1976) (concluding that a defendant's presence was not required during the judge's questioning of the jurors after the verdict). This right, however, “is not absolute.” Id. The defendant “has a due process right ‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105');">05-06 (1934), overruled in part by Malloy v. Hogan, 37');">378 U.S. 1');">37');">378 U.S. 1 (1964)). However, it is not a guaranteed right “when presence would be useless, or the benefit but a shadow, ” id. at 745 (quoting Snyder, 291 U.S. at 106-07), or when the defendant “could have done nothing had [he] been at the conference, nor would [he] have gained anything by attending, ” United States v. Gagnon, 470 U.S. 522, 5271985) (per curiam) (concluding that a defendant's presence was not required at an in camera discussion between the judge and a juror). “Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745. The “exclusion of a defendant from a trial proceeding should be considered in light of the whole record.” Gagnon, 470 U.S. at 526-27.

Clark v. Chappell, 936 F.3d 944, 991 (9th Cir. 2019).

         Here, for the reasons discussed above, the state supreme court reasonably could find the ex parte jury room discussions merely related to Hardin and McAvoy traveling by the same route following the day's trial proceedings as she headed home and he headed for the bus and did not deny a fair trial or constitute a critical stage of the trial. Petitioner's surmise the ex parte conversation necessarily related to reconstituting the jury is unsupported in the record.

         Even if there was trial court error, the state supreme court reasonably could find it harmless, for the reasons stated.

         iii. Proceedings Conducted Outside Petitioner's Presence

         Petitioner argues the trial court erred by excluding him from the ex parte discussions because these jury room discussions were critical parts of his trial.

         As discussed above, “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). The “exclusion of a defendant from a trial proceeding should be considered in light of the whole record.” U.S. v. Gagnon, 470 U.S. 522, 526-27 (1985). That is, a defendant has a federal due process right to be present at court proceedings if his presence has a reasonably substantial relation to his ability to defend himself. Id. Absence does not violate due process where presence is not needed to insure fundamental fairness and the defendant could not have added to or gained from being present. Stincer, 482 U.S. at 745.

         Petitioner argues the communication between the trial court and Juror McAvoy, like the original voir dire, was a “critical stage” of his proceeding, i.e. a stage concerning whether the composition of the jury would change, at which he was denied his statutory and common law right to be present. (Doc. No. 25 at 138 citing Penal Code §§ 977, 1043 (providing a statutory right of presence).

         Petitioner argues that denial of his right to be present during a critical stage of his proceeding constituted reversible error with any need to show prejudice. (Doc. No. 25 at 139; see also Doc. No. 95 at 126 citing Federal Rule 43(a) regarding the taking of testimony in open court.)

         However, the allegation fails for the reasons discussed above. Petitioner has not demonstrated the ex parte discussions involved anything more than that Hardin and McAvoy traveled by the same route following the day's trial proceedings as she headed home, and he headed for the bus and did not constitute a critical stage of the trial. Petitioner's surmise the ex parte conversation necessarily related to reconstituting the jury is unsupported in the record.

         iv. Failure to Declare a Mistrial

         Petitioner faults the trial court for its failure to declare a mistrial in light of its alleged errors discussed above, which denied him an impartial jury. (Doc. No. 25 at 141 citing Irvin, 366 U.S. at 722 (presence of even a single biased juror denies defendant Sixth Amendment rights); Remmer, 347 U.S. 229-30 (1954) (court must hold hearing to determine if juror had improper communication with third-party). However, the trial court has discretion regarding the nature of the investigation of juror misconduct. Tracey v. Palmateer, 37');">37');">341 F.3d 1037');">37, 1044 (9th Cir. 2003).

         In this case, Petitioner merely re-argues that McAvoy's impartiality was tainted by the stalking incident. (Doc. No. 25 at 141.) He argues that the impartiality of the rest of the jury was tainted when the trial court interviewed McAvoy about the incident in the jury room. (Id.) He argues the trial court was bound to declare a mistrial once the entire jury learned of the attempted intimidation. (Doc. No. 25 at 142.) He argues structural error, or alternatively prejudice under Brecht. (Id.)

         Petitioner has not identified clearly established Supreme Court law entitling him to a mistrial in the noted circumstances. See e.g., Sims v. Rowland, 414 F.3d 1148, 1149-1157 (9th Cir. 2005');">05) (state court's failure to hold an evidentiary hearing sua sponte when presented with evidence of juror bias is not contrary to Supreme Court precedent.]

         Furthermore, for the reasons stated ante and post, the state supreme court reasonably could find Petitioner failed to show the ex parte incident constituted juror misconduct or denied him an impartial jury. (See claim 14, post.) He fails to show prejudice from the ex parte incident, for the reasons discussed above.

         v. Conclusions

         The state supreme court reasonably could find trial court did not err by engaging in ex parte communications with jurors in the jury room, off the record and without notice to and the presence of counsel and Petitioner, and by failing to declare a mistrial based for juror bias regarding the noted incident involving juror McAvoy and prosecution witness Hardin.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claims 10, 11, 12, and 13 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The balance of the allegations fails on de novo review, for the reasons stated.

         Claims 10, 11, 12, and 13 shall be denied.

         8. Claim 15

         Petitioner alleges the trial court erred by admitting marital communications between Petitioner and his third wife, Edith Ballew, that were confidential under state law, violating his rights under the Fifth, Eighth, and Fourteenth Amendments. (Doc. No. 25 at 162-64.)

         a. State Court Direct and Collateral Review

         The claim was raised on direct appeal and denied on the merits and on procedural grounds. Catlin, 26 Cal.4th at 130-31.

         The same claim was raised in the second state habeas petition and denied on procedural grounds including raised and rejected on direct appeal (Waltreus). (Order No. S1737');">3793).

         b. Analysis

         Petitioner faults the trial court for admitting statements he made to Ballew during his marriage to her that were confidential under state law.

         Ballew testified that “[Petitioner] made the statement on several occasions that if his parents were angry with him or disappointed in him, they would threaten to take him out of their Will.” (RT 3992.) He argues this marital communication was prejudicial because it provided motive to murder and support for the financial gain special circumstance. This, he argues rendered his Kern County trial fundamentally unfair such that reversal is mandated. (Doc. No. 25 at 164 citing Beck v. Alabama, 447 U.S. 625');">447 U.S. 625, 637');">37-38 at n.13 (1980)) (heightened reliability required in capital proceedings).

         Petitioner points to state law providing that:

Subject to Section 912 [waiver] and as except as otherwise provided in this article, a spouse ... whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.

Evidence Code § 980.

         The record reflects that the trial court overruled defense “marital communication” objection to Ballew's testimony following a hearing outside the jury's presence. It appears the trial court was persuaded that Petitioner was still married to his second wife, Sherry Catlin, when he married Ballew and thus the marital privilege did not apply; a matter litigated and decided in the Monterey County trial in Glenna's death. (See Doc. No. 25 at 162 citing RT 3988-90.)

         Nevertheless, Petitioner argues the state martial privilege was applicable here regardless of whether the marriage between Petitioner and Ballew was void or voidable given the underlying public policy of free communication between spouses. (Doc. No. 25 at 163 citing People v. Godines, 17 Cal.App.2d 721, 727 (1936) (marital communication privilege barred admission of communication between spouses to a subsequently annulled marriage).

         The state supreme court denied the claim, stating that:

Defendant contends that the trial court erred in denying his motion to exclude the testimony of Edith Ballew recounting that defendant had told her that his parents previously had threatened to disinherit him when they were displeased with his conduct. Defendant, asserting that he was married to Ballew at the time of this communication, contends that the court should have excluded this testimony as a confidential marital communication pursuant to the marital privilege. (Evid. Code, § 980.)
Defendant and Ballew were not legally married at the time of the communication, because defendant's divorce from his second wife was not final when he and Ballew went through a marriage ceremony. The marital privilege applies only in the case of a valid marriage. (People v. Badgett (1995) 10 Cal.4th 330, 363 [41 Cal.Rptr.2d 635');">41 Cal.Rptr.2d 635, 895 P.2d 877].) This court specifically has held that the privilege does not apply when a person enters into a second marriage before his or her first marriage legally is dissolved. (People v. Gallego (1990) 52 Cal.3d 115, 176-177 [276 Cal.Rptr. 679, 802 P.2d 169].)
Defendant requests that we reconsider our holding in People v. Gallego, supra, 52 Cal.3d 115. He acknowledges that there are two strands to the marital privilege and that it may be appropriate to deny the privilege not to testify against a spouse when the purported marriage is void, because that element of the privilege is based upon the common law rule that spouses are incompetent to testify against each other. He claims, however, that a different rule should apply to that element of the spousal privilege protecting confidential marital communications. In order to promote marital harmony and free communication, he asserts, the privilege should extend to void and voidable marriages. In addition, he claims that our decision in People v. Gallego, supra, 52 Cal.3d 115, erroneously fails to distinguish between intentional bigamy and bigamy entered into in a good faith but mistaken belief that a prior marriage has been dissolved legally.
We do not believe that defendant has offered persuasive grounds for reconsidering the rule that the marital privilege applies only in the case of a valid marriage. The rule expressed in the Gallego opinion is the rule in most, if not all, other jurisdictions (see 81 Am.Jur.2d (1992) Witnesses, § 300, pp. 285-286; Note, “Honey, the Judge Says We're History”: Abrogating the Marital Privileges via Modern Doctrines of Marital Worthiness (1992) 77 Cornell L.Rev. 843, 850), and defendant has not provided authority to support his contrary claim. Defendant also has not provided authority directing that a bona fide belief in the validity of a marriage constitutes a basis for the application of the marital privilege. Further, defendant did not claim at trial that he had a good faith belief in the validity of his marriage that should support application of the marital privilege, and in any event, even if he could establish error, any error was harmless given the relative insignificance of the challenged testimony.10
n.10 Defendant's perfunctory claim that the admission of this evidence constituted a denial of due process of law and a violation of the Eighth Amendment guarantee of a reliable guilt and penalty determination was not raised below, and it is without merit.

Catlin, 26 Cal.4th at 130-31.

         The state supreme court reasonably denied the claim. It appears Petitioner raises only state law evidentiary error. Accordingly, federal courts may not interfere with a state evidentiary ruling but only consider whether the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Larson v. Palmateer, 05');">057');">515 F.3d 105');">057, 1066 (9th Cir. 2008).

         Here, for the reasons stated by the state supreme court, it appears the evidence of marital statements was properly admitted. Even if there was error, Petitioner has not demonstrated it was more than harmless because the jury was otherwise aware of evidence Petitioner was tired of taking care of his mother and wished “she would hurry up and die” (RT 4150; RT (Bates) 8625) and that he concerned his mother might list a charitable organization as beneficiary under her will. (RT 3534.)

         c. Conclusions

         The state supreme court reasonably could find trial court did not err by admitting the noted communications between Petitioner and Edith Ballew.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claim 15 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         Claim 15 shall be denied.

         9. Claims 16 and 17

         Petitioner alleges that the trial court erred in allowing prosecution experts Drs. Ford and Dollinger to testify beyond their respective areas of expertise (claim 16), and in allowing Dr. Ford and prosecution expert Dr. Kilburn to present hearsay testimony (claim 17), violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 165-74.)

         a. State Court Direct and Collateral Review

         i. Claim 16

         The claim that admission of testimony from prosecution experts Drs. Ford and Dollinger denied due process was raised on Fifth and Fourteenth Amendment grounds on direct appeal and denied on the merits. Catlin, 26 Cal.4th at 131-33.

         The same claim was raised in the second state habeas petition and denied on the merits and on procedural grounds. (Order No. S1737');">3793.)

         ii. Claim 17

         The claim that admission of hearsay testimony from prosecution experts Drs. Ford and Kilburn denied the right to confront and examine declarant witnesses was raised on direct appeal on Sixth and Fourteenth Amendment grounds and denied on the merits and on procedural grounds. Catlin, 26 Cal.4th at 136-39.

         The same claim alleging denial of due process, the right to confront and examine witnesses, and a reliable conviction and sentence on Fifth, Sixth, Eighth, and Fourteenth Amendment grounds was raised in the second state habeas petition and (as to other than ineffective assistance of counsel and the constitutionality of the death penalty allegations) denied on procedural grounds as raised and rejected on appeal (In re Waltreus). (Order No. S173973.)

         b. Analysis

         Petitioner argues the trial court errantly admitted unqualified and prejudicial testimony from Drs. Ford, Dollinger, and Kilburn suggesting paraquat was the cause of Joyce's death.

         The claims lack merit upon deferential and de novo review, as follows.

         i. Unqualified Expert Testimony

         Petitioner argues that Chevron toxicologist Dr. John Ford was improperly allowed to testify on victims' alleged paraquat ingestion timelines, presentation and progression of symptom and cause of death including the medical effects of pre-existing medication conditions and age. (See Doc. No. 25 at 165-66 citing Gardner v. Florida, 430 U.S. 349, 357-358 (1977) (heightened reliability required in capital cases.) In support, he points to areas in which Dr. Ford's testimony regarding the probable time of paraquat ingestion allegedly conflicted with the testimony of predecessor prosecution expert, Dr. Buteau.

         The record reflects Dr. Ford held a Ph.D. in physiology and pharmacology and that he was not a medical doctor or pathologist. (Doc. No. 25 at 165 citing RT 3880-82, 3932.) Dr. Ford testified as an expert toxicology witness familiar with paraquat. (Id.) He testified to his involvement in about sixty paraquat poisonings (RT 3882, 3932-33), providing consultation to attending physicians in three of those cases (RT 3883).

         Petitioner complains the trial court, over defense objection based on lack of foundation (RT 3916-18), allowed Dr. Ford to testify about the cause of Joyce's death (RT 3916) as well as ingestion time scenarios that implicated how Martha's advanced age and pre-existing medical conditions may have affected the ability of Martha's kidneys to excrete paraquat from here system (RT 3918-21), and the issue of when Glenna may have ingested paraquat (3930) and the cause of Glenna's death. (RT 3928.)

         Additionally, Petitioner complains the trial court erred by allowing Kern County pathologist Dr. Armand Dollinger to testify, over defense objection on grounds of lack of foundation, that Paraquat was the cause of Martha's death even though Dr. Dollinger had earlier concluded in his 1985 autopsy report that Martha died of a heart attack (RT 3257-58, RT 3260-63). Petitioner argues that Dr. Dollinger changed his opinion on cause of death after he received a toxicology report from Chevron Oil Company indicating the presence of Paraquat in Martha's lung and liver tissue. (RT 3259-60.)

         Petitioner argues that Dr. Dollinger was unqualified to state an opinion that Martha's death resulted from Paraquat poisoning. He points to Dr. Dollinger's conceded his lack of knowledge of and experience with Paraquat and Dr. Dollinger's testimony that he had not been involved in any prior autopsy where Paraquat was a suspected cause of death (RT 3264-65).

         At bottom, Petitioner contends medical causation can only be determined by expert medical testimony. (Doc. No. 25 at 166 citing Salasguevara v. Wyeth Lab, Inc., 222 Cal.App.3d 37');">379, 385 (1990)) (medical causation can only be determined by expert medical testimony). That is, by testimony from a witness “[having] sufficient skill or experience in the particular field so that his testimony would be likely to assist the jury in the search for the truth.” Salasguevara, 222Cal.App. 3d. at 385.

         Petitioner points to then applicable state law providing that:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is . . . (b) Based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.

Evid. Code § 801. He points to then applicable law that:

A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.

Evid. Code § 802.

         The California Supreme Court considered and rejected the allegations, stating that:

Defendant contends that the trial court erred in permitting unqualified witnesses to give expert opinion testimony. He claims that Dr. John Ford, a clinical toxicologist employed at the Chevron Environmental Health Center, with a Ph.D. in physiology and pharmacology, was not qualified to testify regarding the cause of Joyce's death or regarding the effect that hypertension and age would have had on Martha's kidney function. He also contends Dr. Ford was unqualified to testify as an expert regarding the time at which Glenna might have ingested paraquat in order to produce the symptoms she displayed.11 He maintains that because Dr. Ford was not a medical doctor and did not have training in pathology, he was unqualified to render an opinion on these subjects.
n.11 Respondent contends this claim with respect to Glenna was waived because defendant failed to object below. The record is equivocal with respect to the basis for defendant's objection, and we reach the merits of the claim in order to avoid uncertainty in the event of a later claim of ineffective assistance of counsel. People v. Catlin, 26 Cal.4th 81, 131, 26 P.3d 357 (2001), as modified (Sept. 26, 2001).
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert witness's testimony in the form of an opinion is limited to a subject “that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact ....” (Evid. Code, § 801, subd. (a).) A claim that expert opinion evidence improperly has been admitted is reviewed on appeal for abuse of discretion. (People v. Davenport (1995) 11 Cal.4th 1171, 1207 [47 Cal.Rptr.2d 800');">47 Cal.Rptr.2d 800, 906 P.2d 1068].)
Qualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion. (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1142 [37');">371');">219 Cal.Rptr. 37');">371] [“Because of the dramatic growth of diverse interdisciplinary studies in recent times, often individuals of different nonphysician professions are called upon to give medical opinions or at least opinions involving some medical expertise”]; see People v. Fierro (1991) 1 Cal.4th 173, 224 [3 Cal.Rptr.2d 426');">3 Cal.Rptr.2d 426, 821 P.2d 1302]; Brown v. Colm (1974) 11 Cal.3d 639, 645 [114 Cal.Rptr. 128');">114 Cal.Rptr. 128, 522 P.2d 688] [referring to an “unmistakable general trend in recent years ... toward liberalizing the rules relating to the testimonial qualifications of medical experts”].)
We are persuaded that the trial court did not abuse its discretion in determining that Dr. Ford was qualified to testify on the points disputed by defendant. Dr. Ford had advanced training in occupational medicine, physiology, and pharmacology, and had worked in the area of agricultural poison toxicology for 18 years. He had specialized experience in paraquat toxicology, having been employed at a health center operated by the sole distributor of paraquat in the United States, having consulted and advised physicians in many cases of paraquat poisoning, having participated in many research projects and in biannual conferences on the subject of paraquat toxicology, and having provided laboratory services to analyze human tissue samples connected with incidents of paraquat poisoning.
Defendant raises a similar claim with respect to the testimony of Dr. Armand Dollinger, a medical doctor who specialized in pathology and who conducted the autopsy on Martha. Defendant contends that because Dr. Dollinger had no previous experience with the particular field of paraquat poisoning, he had no basis for stating an opinion, based on a toxicology report disclosing the presence of paraquat in Martha's lungs and liver, that she had died of paraquat poisoning. “Permitting Dr. Dollinger to so testify, ” defendant asserts, “is analogous to permitting a psychiatrist to testify as an expert on oncology, based on a third-party report stating his patient had cancer. In neither instance does the third-party report confer expert status on the doctor so as to qualify him to render a valid opinion on cause of death.” We believe that the analogy drawn by defendant is flawed. Whether or not psychiatrists, by virtue of their medical training, might be qualified to interpret laboratory reports relating to cancer, a pathologist commonly has expertise in interpreting both the clinical evidence of disease or tissue damage and laboratory results showing the presence of disease agents or toxic materials in human tissue. (See People v. Mayfield (1997) 14 Cal.4th 668, 766 [60 Cal.Rptr.2d 1');">60 Cal.Rptr.2d 1, 928 P.2d 485] [the pathologist who conducts an autopsy generally is permitted to testify as to cause, means, and time of death].) Dr. Dollinger testified that he had performed in excess of 11, 000 postmortem examinations or autopsies and that he had studied the medical and scientific literature regarding paraquat toxicology. We do not believe that Dr. Dollinger's reliance upon laboratory results performed by other professionals required the trial court to find him unqualified to offer an expert opinion on the cause of Martha's death. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 331, p. 564 [“A doctor may base an opinion on a diagnosis or examination made by another doctor”].) Dr. Dollinger had sufficient specialized training, in addition to the particular experience of having performed the autopsy on Martha, to have reached an informed conclusion as to the cause of her death, despite the circumstance that he had not previously performed an autopsy in a case in which the cause of death was paraquat poisoning.12
n.12 We do not reach defendant's claim that error by the trial court in admitting the expert opinion testimony constituted a violation of various constitutional rights, because we have determined that the trial court did not abuse its discretion in admitting this evidence.

Catlin, 26 Cal.4th at 131-33.

         Petitioner has not shown the state supreme court unreasonably denied these aspects of the allegations.

         Petitioner's further suggestion Drs. Ford and Dollinger must have been unqualified to provide medical causation testimony because of the disparate causation opinions given by the other experts in in criminal proceedings reasonably goes to weight rather than admissibility. (See e.g., Doc. No. 25 at 167-68); see also People v. Hogan, 31 Cal.3d 815, 852 (1982), disapproved on other grounds by People v. Cooper, 53 Cal.3d 771, 836 (1991) (the qualifications of an expert must be related to the particular subject upon which he is giving expert testimony).

         Moreover, to the extent the claim raises only state evidentiary issues, it presents no federal question. 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68 (a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States). As noted, federal courts may not interfere with a state evidentiary ruling unless the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Jeffries, 5 F.3d at 1192. Only if no permissible inferences can be drawn from admitted evidence will due process be violated. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)

         Petitioner in any event has not shown more than harmless error. Even without the testimony of Drs. Ford and Dollinger, the California Supreme Court could have found no reasonable probability and likelihood that the result of the proceeding would have changed. The noted evidence of Petitioner's guilt was substantial. (See claims 30, 31, post.)

         ii. Hearsay Expert Testimony

         Petitioner argues the trial court erred by admitting testimony of prosecution experts that included incompetent hearsay statements by other physicians.

         Petitioner faults the trial court for allowing Dr. Kaye Kilburn, a prosecution expert and professor of Medicine at the University of Southern California, to testify (over defense objection) to hearsay statements from prosecution expert Dr. Stephens (Doc. No. 25 at 170-74.) Dr. Kilburn was allowed to testify that Dr. Stephens told him tissue slides Dr. Kilburn reviewed were from tissues of Joyce. (Doc. No. 25 at 170 citing RT 4010-15.) Petitioner argues the hearsay statement was insufficient to establish chain of custody for these slides. (Doc. No. 25 at 172.)

         Petitioner faults the trial court for allowing Dr. Kilburn to testify to statements made to him by Dr. Thurlbeck, a consulting pathologist, that “[y]ou've got a perfect example of paraquat poisoning here. . . Oh, when I was in England for a couple of years I saw many of the cases that were written up. They were sent to us at Middlesex. . . There's no doubt in my mind what you have here.” (Id. citing RT 4023.)

         Petitioner faults the trial court for allowing Dr. Ford's testimony as to hearsay statements Glenna made to attending physicians that suggested severe irritation of the gastro-intestinal tract. (Doc. No. 25 at 172-73 citing RT 3928-30.) Petitioner argues Glenna's statements, used by Dr. Ford to support his paraquat ingestion timeline, were incompetent hearsay because they were made “[to] one of the [unnamed] physicians at St. Agnes [Hospital], ” who in turn repeated the information to Dr. Ford (id.); and it allowed Dr. Ford to “guess” at the ingestion time reflected in his cause of death opinion (Doc. No. 25 at 173).

         The California Supreme Court considered and rejected aspects of the allegations, as follows:

Defendant contends the trial court erred in overruling hearsay objections to testimony by Dr. Kilburn and Dr. Ford.
In 1976, Dr. Kilburn, a specialist in lung pathology, received lung tissue gathered by Dr. Swinyer at Joyce's autopsy, which he caused to be prepared into slides. He also received lung tissue slides from Dr. Stephens in 1986. Both samples of Joyce's tissue revealed the same structural damage to the lungs-destruction of the alveolar structure and replacement of alveolar spaces with dense collagenous connective tissue. He testified: “The predominant process was that the alveoli, the alveolar spaces were filled with this exuberant scarring, and in some places the alveolar walls themselves were scarring in this manner. And what this ... did was totally exclude the possibility of air going into those areas. Air must go into the alveoli for gas exchange, for oxygen to be taken up out of the air to go into the blood. There are almost no areas in any of the sections I looked at, whether they were from those that I had made in my laboratory or that Dr. Stephens had made, that showed air spaces, and none of the air spaces, even when they were present, were normal. They had lost their lining. They had lost their normal blood vessels and instead were replaced by this gristly, dense, connective tissue.” He had observed this kind of damage in cases of known paraquat poisoning. When asked his opinion of what caused the fibrosis in Joyce's lungs, he answered: “Well, the clinical course, the appearance of the tissue and the time after her illness, the failure to see any regeneration or repair or anything, really, in the way of inflammation bespeaking infection, all pointed to this being chemical in its origin, and of the chemicals, paraquat is the only one that produces this kind of fibrotic proliferative change and does it cataclysmically, I mean does it within days ....”
When asked whether he consulted any other persons regarding Joyce's tissue, he stated that a few days after he received the tissue in 1976 and prepared the slides, he showed the slides to a colleague. Without ever telling this expert, Dr. Thurlbeck, anything about their origin, Dr. Kilburn asked him to examine the slides. Dr. Kilburn testified that Dr. Thurlbeck examined them for two minutes and said, “You've got a perfect example of paraquat poisoning here.” Dr. Thurlbeck stated that he had experience with cases of paraquat poisoning in England, and that he did not have any doubt that the slides of Joyce's tissues exhibited such poisoning. Defendant's hearsay objection was overruled, the court observing that the hearsay was elicited for the purpose of explaining Dr. Kilburn's opinion testimony. When the prosecutor asked Dr. Kilburn what effect Dr. Thurlbeck's opinion had on his own opinion, the witness stated: “I was already convinced from my experience, but, you know, it's comforting to know that another person ... comes to the same conclusion and comes to it without any prompting or without any additional information.”
We have explained that “[a]n expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably ... be relied upon' for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, under the guise of reasons, the expert's detailed explanation [brings] before the jury incompetent hearsay evidence. (People v. Montiel (1993) 5 Cal.4th 877, 918 [05');">05');">21 Cal.Rptr.2d 705');">05');">05');">05');">21 Cal.Rptr.2d 705');">05, 855 P.2d 1277]; see Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 05');">05');">14 Cal.4th 605');">05, 618-619 [59 Cal.Rptr.2d 356');">59 Cal.Rptr.2d 356, 927 P.2d 713].) In this context, the court may exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” (People v. Carpenter, supra, 15 Cal.4th at p. 403.)
Nonetheless, “[b]ecause an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment.” (People v. Montiel, supra, 5 Cal.4th at p. 919.)
Although it is appropriate for a physician to base his or her opinion in part upon the opinion of another physician (People v. Campos (1995) 32 Cal.App.4th 304, 308 [38 Cal.Rptr.2d 113]; see also Whitfield v. Roth (1974) 10 Cal.3d 874, 895 [112 Cal.Rptr. 540');">112 Cal.Rptr. 540, 519 P.2d 588]; Cal. Law Revision Com. com., 29B pt. 3 West's Ann. Evid. Code (1995 ed.) foll. § 801, p. 19 [“A physician may ... rely on reports and opinions of other physicians”]), it generally is not appropriate for the testifying expert to recount the details of the other physician's report or expression of opinion. (People v. Campos, supra, 32 Cal.App.4th at p. 308; see People v. Coleman (1985) 38 Cal.3d 69, 92 [211 Cal.Rptr. 102, 695 P.2d 189]; Whitfield v. Roth, supra, 10 Cal.3d at pp. 894-895; 1 Jefferson, Cal. Evidence Benchbook (3d ed. 1997) §§ 29.42-29.43, pp. 597-598; Méndez, supra, Cal. Evidence, § 16.03, pp. 312-313; *138 Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 1999) ¶ 8.763.)
In the present case, we need not determine whether Dr. Kilburn's account of the comments of a nontestifying physician went beyond the proper purpose of permitting the jury to evaluate the basis for Dr. Kilburn's testimony, because even if error occurred it was not prejudicial. The court twice stated that the evidence was being received only for the purpose of indicating the basis for the witness's opinion. Dr. Kilburn's reference to Dr. Thurlbeck was brief and, moreover, other reliable expert witnesses testified consistently and explained that in their opinion, the slides of Joyce's lungs reflected paraquat poisoning. The prosecutor did not refer to Dr. Thurlbeck's opinion in his argument to the jury, and even Dr. Kilburn's testimony was relied upon only to a limited degree. It is not reasonably probable that a result more favorable to defendant would have occurred in the absence of the admission of this evidence. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)14
n.14 Defendant also contends that any such error constituted a violation of his Sixth Amendment right to confrontation and of parallel rights under the California Constitution, reviewable under the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705');">05, 24 A.L.R.3d 1065] [harmless beyond a reasonable doubt]). Defendant did not object on this ground below, and thus his constitutional claim has not been preserved for appeal. (People v. Waidla, supra, 22 Cal.4th at p. 726, fn. 8; People v. Rowland, supra, 4 Cal.4th at p. 265, fn. 4; see People v. Carpenter, supra, 15 Cal.4th at p. 385; People v. Mickey (1991) 54 Cal.3d 612, 689 [801');">286 Cal.Rptr. 801, 818 P.2d 84].) Further, even assuming for the purpose of discussion that the admission of Dr. Thurlbeck's declarations implicated defendant's rights under the confrontation clause, any error would be harmless beyond a reasonable doubt. People v. Catlin, 26 Cal.4th 81, 138, 26 P.3d 357 (2001), as modified (Sept. 26, 2001).
Defendant claims perfunctorily that the trial court should have sustained his hearsay objection to Dr. Kilburn's statement that Kilburn had been informed by Dr. Stephens that the slides Kilburn received from Stephens were from Joyce. We readily reject this claim. The testimony was permissible under Evidence Code section 801, subdivision (b), and even if that were not the case, any error would be harmless, because the chain of custody was established satisfactorily through other testimony.
Defendant also contends that Dr. Ford should not have been permitted to testify that he based his opinion regarding the time that Glenna had ingested paraquat in part on her statements, as recorded in her medical records, that she had vomited violently and had tarry stools on February 20, 21, and 22, 1984, after her return from a trip to Las Vegas that was made without defendant. Dr. Ford's testimony explaining the basis for his opinion clearly was permissible under Evidence Code section 801, subdivision (a). (See People v. Wilson (1944) 25 Cal.2d 341, 348 [153 P.2d 720]; 1 Witkin, Cal. Evidence, supra, Opinion Evidence, § 33, pp. 564-565; 1 Jefferson, Cal. Evidence Benchbook, supra, § 29.41, p. 596.) His ability, as a nonphysician, to interpret medical records and patient symptoms went to the weight, and not the admissibility, of his testimony. As we have determined above, Dr. Ford was qualified to give opinion testimony of a medical nature.

Catlin, 26 Cal.4th at 136-39.

         Petitioner has not demonstrated the state supreme court was unreasonable in rejecting the allegations. As above, Petitioner has not demonstrated the prosecution trial experts were incompetent or unqualified.

         The jury was properly instructed on consideration of expert opinion and limitations thereon. (CT 1952- 54; see also Evid. Code §§ 801, 802.) For example, the record reflects the trial court gave a limiting instruction as to Dr. Ford's testimony and admitted Glenna's hearsay statement solely as the basis for Dr. Ford opinion and not for its truth (RT 3929-30). Petitioner's argument that the evidence was in fact used by the jury for its truth because Dr. Ford used it to “guess” that Paraquat ingestion occurred outside Petitioner's alibi timeline (see Doc. No. 25 at 173) reasonably could be seen as only speculation.

         The hearsay objections reasonably can be rejected including those aspects before the state supreme court noted above. Dr. Kilburn's testimony that Dr. Stephens told him certain tissue slides reviewed by Dr. Kilburn were from Joyce reasonably could inform the basis for Dr. Kilburn's opinion rather than for the truth of the statement. Moreover, any such alleged chain of custody error reasonably appears harmless as chain of custody otherwise appears sufficiently established, for the reasons stated. (See claim 20, post.)

         Similarly, Dr. Kilburn's testimony of Dr. Thurlbeck's concurring opinion reasonably could permissibly inform the basis for Dr. Kilburn's opinion rather than impermissibly provide independent proof of facts in issue. In his regard, Petitioner argues that “an expert witness may base his opinion on reliable hearsay, but he may not under the guise of reasons for his opinion, bring before the jury incompetent hearsay testimony.” (Doc. No. 25 at 171 citing Continental Airlines. Inc. v. McDonald Douglas Corp, 216 Cal.App.3d 388, 414 (Cal.Ct.App. 1989); accord Whitfield v. Roth, 10 Cal.3d 874, 894 (1974). He argues the alleged Dr. Thurlbeck's statement was not offered as a basis for Dr. Kilburn's opinion but rather as “independent proof of the facts.” Whitfield, 10 Cal. 3d. at 895. However, Dr. Kilburn testified that he considered Dr. Thurlbeck's statement for its concurrence value. (RT 4023-24.) It does not appear that Dr. Kilburn testified as to facts and details underlying Dr. Thurlbeck's statement as independent proof of issues in Petitioner's proceeding. (Id.)

         Petitioner's further argument that he had no opportunity to confront and cross-examine the hearsay statements reasonably could be rejected including on the grounds state by the California Supreme Court. (See Doc. No. 25 at 172 citing Idaho v. Wright, 05');">05');">497 U.S. 805');">05, 812 (1990) (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”) Particularly, to the extent Petitioner argues that admission of Dr. Thurlbeck's statement violated his confrontation rights under Crawford v. Washington (see Doc. No. 95 at 141-42 citing 541 U.S. 36, 68 (2004) (testimonial hearsay excluded under Confrontation Clause unless witness is unavailable and defendant had opportunity to cross-examine)), he does not to explain how, or cite clearly established Supreme Court authority that Crawford limits an expert's reliance upon expert hearsay in forming an opinion, or gives rise to constitutional error on these facts.

         In any event, such alleged failure to confront error reasonably appears no more than harmless. Petitioner has not shown he was unable fully to cross-examine Drs. Kilburn, Ford, and Stephens as to their opinions which considered the alleged hearsay. As noted, the jury was properly instructed as to its consideration of expert testimony. The evidence against Petitioner was substantial. (See e.g., claims 30, 31, post.) In sum, Petitioner has not shown a reasonable probability or likelihood of a different outcome absent the alleged hearsay, or a fundamentally lack of fairness.

         To the extent Petitioner raises only state evidentiary issues, no federal question is presented. 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68 (a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States).

         iii. Conclusions

         The state supreme court reasonably could find trial court did not err in admitting the noted testimony by prosecution experts Drs. Ford, Dollinger, and Kilburn.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations.

         Accordingly, it does not appear that the California Supreme Court's rejection of claims 16 and 17 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         The balance of the allegations fails on de novo review, for the reasons stated.

         Claims 16 and 17 shall be denied.

         10. Claim 18

         Petitioner faults the trial court for giving erroneous guilt phase jury instructions, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 175-91.)

         a. State Court Direct and Collateral Review

         The aspects of the claim alleging erroneous guilt phase jury instructions denied him due process, an impartial jury, a fair trial, and a reliable conviction and sentence on Fifth, Sixth, Eighth and Fourteenth Amendment grounds (i.e., subclaims A-H and J) and effective assistance of counsel on Sixth Amendment grounds (i.e., subclaim I) were considered on direct appeal and denied on the merits. See Catlin, 26 Cal.4th at 144-57.

         The claim that erroneous guilt phase instructions denied him effective assistance of counsel was raised in the first state habeas petition on Fifth, Sixth, Eighth, and Fourteenth Amendment grounds and denied on the merits. (Order No. S090636.)

         The claim in its entirety with the addition of a confrontation clause claim to subclaims B-H and J was raised in the second state habeas petition and (as to other than ineffective assistance of counsel and the constitutionality of the death penalty) aspects of the claim were denied on procedural grounds as raised and rejected on appeal (In re Waltreus). (Order S173973.)

         b. Analysis

         Petitioner argues in multiple subclaims that the guilt phase jury instructions were erroneous. Erroneous jury instructions must infect the entire trial in order to establish a due process violation. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The instruction in issue must violate some due process right protected by the Fourteenth Amendment. Cupp v. Naughton, 414 U.S. 141, 147 (1973). Jurors are presumed to follow the instructions. Weeks, 528 U.S. at 234. The burden on petitioner is especially heavy “where ... the alleged error involves the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006).

         A single instruction is not viewed in isolation, but in the context of the overall change to the jury. Boyde, 494 U.S. at 37');">378; Middleton v. McNeil, 541 U.S. 433, 435-36 (2004) (finding that an erroneous instruction was cured by the spillover effect of correct instruction on the law elsewhere). Cupp, at 147. The Brecht harmless error standard applies to state court resolutions of instructional error claims. Calderon v. Coleman, 525 U.S. 141, 147 (1998).

         Petitioner's subclaims are considered separately, below.

         i. Subclaim A - Other Crimes Evidence in Death of Joyce - Modified CALJIC 2.50

         Petitioner alleges the Kern County court erroneously instructed the jury that it could consider other crimes evidence (from the Monterey County trial) in determining the cause of Joyce's death. (Doc. No. 25 at 176-77 citing RT 5193.)

         The record reflects that over counsel's objection (see RT 5160), the jury was instructed with a modified CALJIC 2.50 instruction regarding “Evidence of Other Crimes, ” as follows:

Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial.
Such evidence, if believed, was not received and may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes.
Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show:
The cause of death of the victims in the crimes, if any, of which the defendant is accused; The identity of the person who committed the crimes, if any, of which the defendant is accused; For the limited purpose of which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case.
You are not permitted to consider such evidence for any other purpose.

(CT 1947.)

         Petitioner argues this erroneous instruction allowed the jury to convict Petitioner based upon an inference of criminal propensity from the erroneously admitted other crimes evidence in Glenna's Monterey County proceeding (see claims 1-5) rather than beyond a reasonable doubt on every element of the charged offenses, denying him a fair trial. (Doc. No. 25 at 176-77 citing RT 5193; see also Doc. No. 95 at 143; In re Winship, 397 U.S. 358, 364 (1970) (prosecutor must prove every element of the charged offense beyond a reasonable doubt).)

         The California Supreme Court considered and rejected the allegation on direct appeal, stating that:

Defendant contends the court erred in instructing the jury that it could consider other-crimes evidence in determining the cause of death in the charged crimes, particularly with respect to the murder of Joyce.
The trial court instructed the jury, regarding their evaluation of other-crimes evidence, according to a modified version of CALJIC No. 2.50. Over defense objection, the trial court granted the prosecutor's request that the instruction be modified to state that other-crimes evidence may be considered not only for the purpose of establishing the identity of the person responsible for the charged offenses, but also for the purpose of determining the cause of death of the victims in the charged offenses.16
n.16 The court instructed the jury: “Evidence has been introduced for the purpose of showing that the Defendant committed ... crimes other than [those] for which he is on trial. Such evidence, if believed, was not received and may not be considered by you to prove that Defendant is a person of bad character or that he has a disposition to commit crimes. [¶] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show the cause of death of the victims in the crimes, if any[, ] of which the Defendant is accused, the identity of the person who committed the crimes, if any[, ] of which the Defendant is accused[.] For the limited purpose of which you may consider such evidence you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose.”
Defendant contends that he was “convicted of a capital offense on evidence which would not satisfy the reasonable doubt standard.” In support, he claims that uncharged crimes evidence that he killed Glenna improperly was admitted in the present case. We already have determined that the evidence properly was admitted.
Defendant also contends that the court violated his right to a fair trial and to a reliable penalty determination by giving the modified version of CALJIC No. 2.50, because the modified instruction “lessened the prosecution's burden of proof on the crucial issue of cause of death.” If defendant means that the prosecutor's burden of proof was lightened because the instruction entitled the jury to consider improperly admitted evidence of cause of death, it suffices to note that we already have rejected the contention that this evidence was admitted improperly.
Defendant's principal contention seems to be that other-crimes evidence may be admitted only for the purpose of proving intent, identity, motive, knowledge, and conspiracy. Cause of death, he claims, is not an appropriate object of proof for other-crimes evidence. Rather, he asserts, cause of death may be proved only by expert opinion testimony.
Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act.” Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity. It recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but, contrary to defendant's contention, the list is not exclusive. (People v. Key (1984) 153 Cal.App.3d 888, 894 [203 Cal.Rptr. 144]; see also People v. Thompson (1980) 27 Cal.3d 303, 315, fn. 14 [165 Cal.Rptr. 289');">165 Cal.Rptr. 289, 611 P.2d 883]; 1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 75, p. 411.) As we have explained, the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. (People v. Thompson, supra, 27 Cal.3d 303, 315.) In order to be material, the fact in dispute “may be either an ultimate fact in the proceeding or an intermediate fact 'from which such ultimate fact[] may be ... inferred.' ” (Ibid., fn. omitted.)
Defendant's not guilty plea put in issue all the elements of the charged offenses. (People v. Balcom (1994) 7 Cal.4th 414, 422 [27 Cal.Rptr.2d 666');">27 Cal.Rptr.2d 666, 867 P.2d 777].) Evidence tending to demonstrate the cause of death was relevant to demonstrate that a murder-and not a natural death-had occurred. (See People v. Mendoza (2000) 24 Cal.4th 130, 171 [99 Cal.Rptr.2d 485');">99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Scheid (1997) 16 Cal.4th 1, 15 [65 Cal.Rptr.2d 348');">65 Cal.Rptr.2d 348, 939 P.2d 748].) Evidence that defendant previously had murdered his wife Glenna by poisoning her with paraquat was relevant to the issue of the cause of death in the charged crimes, because it tended to corroborate the other evidence establishing that Joyce and Martha died of paraquat poisoning. (See People v. Diaz, supra, 3 Cal.4th at pp. 561- 562; People v. Ruiz, supra, 44 Cal.3d at pp. 605');">05-606; People v. Montalvo (1971) 4 Cal.3d 328, 332 [93 Cal.Rptr. 581');">93 Cal.Rptr. 581, 482 P.2d 205');">05, 49 A.L.R.3d 518] [evidence that defendant previously injected a young girl with heroin, causing certain reactions, was relevant to prove that in the charged crime, a substance that caused the same reactions when injected also was heroin].)
We are not persuaded by defendant's contention that the cause of death may be established only through expert opinion testimony and not through other-crimes evidence. Cases he cites in support declare only that expert opinion testimony on the question of cause of death also is admissible. (See People v. Mayfield, supra, 14 Cal.4th at p. 766; People v. Cole (1956) 47 Cal.2d 99, 103-104 [301 P.2d 854');">301 P.2d 854, 56 A.L.R.2d 1435].) Other evidence relevant to cause of death also is admissible. (See, e.g., People v. Mendoza, supra, 24 Cal.4th at p. 171; People v. Scheid, supra, 16 Cal.4th at p. 15; People v. Diaz, supra, 3 Cal.4th at pp. 561-562.)
Defendant complains that the instruction informed the jurors that in the event they found that Glenna died of paraquat poison, they could find from that fact alone that both Joyce and Martha died of paraquat poison. We do not believe, however, that the instruction conveyed that impression. It directed the jury to consider “if” the other-crimes evidence “tends” to demonstrate cause of death and identity, and directed the jury to weigh the evidence in the same manner as it would weigh all other evidence in the case.
Defendant claims that the giving of the instruction violated his state and federal constitutional rights to due process of law and to a fair trial. He contends that by permitting the jury to convict him on the basis of evidence of his criminal propensity, the instruction relieved the prosecution of its full burden of proof on the issue of the cause of the victims' deaths. We have concluded already, however, that the instruction did not permit the jury to rely on evidence of defendant's criminal propensity, and that it did not direct that the jury could determine the cause of Joyce's and Martha's deaths solely from evidence establishing that the cause of Glenna's death was paraquat poisoning.
Defendant also complains that the modified instruction failed to explain exactly what type of other-crimes evidence could be considered. In support, he cites People v. Rollo (1977) 20 Cal.3d 109');">20 Cal.3d 109');">20 Cal.3d 109');">20 Cal.3d 109 [141 Cal.Rptr. 177, 569 P.2d 771]. In that case this court stated that when evidence of a prior conviction has been admitted for impeachment purposes and other-crimes evidence also has been admitted pursuant to Evidence Code section 1101, subdivision (b), the trial court should instruct the jury as to which evidence is referred to in the CALJIC No. 2.50 instruction, in order to avoid confusion. (Rollo, supra, 20 Cal.3d at p. 123, fn. 6.) In the present case, in addition to the other-crimes evidence, evidence that defendant had suffered a prior forgery conviction was admitted for impeachment purposes. Even if we consider this claim as invoking the federal Constitution, with its exacting standard of prejudice, we conclude that any error in failing to modify CALJIC No. 2.50 was harmless beyond a reasonable doubt. The jury was instructed that the evidence of a prior conviction could be considered only for the purpose of impeachment. We believe there is no reasonable possibility that the jury considered the prior forgery conviction in making its determinations, in accordance with CALJIC No. 2.50, on the issues of cause of death and the identity of the perpetrator. (See Chapman v. California, supra, 386 U.S. 18, 24 [87 S.Ct. 824');">87 S.Ct. 824, 828].)

Catlin, 26 Cal.4th at 144-47.

         The state supreme court reasonably denied the subclaim for the reasons stated by that court. The instruction set out above included limiting language precluding the jury's consideration of the other crimes evidence for criminal disposition. The jurors also were instructed the prosecution had the burden of proving guilt beyond a reasonable doubt. (CT 1955 regarding CALJIC 2.90.) The jury presumably understood and followed their instructions. Weeks, 528 U.S. at 234.

         Furthermore, the state supreme court reasonably could find Petitioner has not demonstrated that he was convicted other than on proof beyond a reasonable doubt as to every element of the charged offenses. (See claims 30 and 31, post.) He has not demonstrated instruction with modified CALJIC 2.50 denied him a fair trial, for the reasons stated. See Marin-Cuevas, 147 F.3d at 893 (stating the test for error is whether the jury instructions “taken as a whole were misleading or represented a statement inadequate to guide the jury's deliberations”).

         Even if there was state law error, Petitioner has not demonstrated constitutional error, for the reasons stated.

         ii. Subclaim B - Malice - Modified CALJIC 8.11; CALJIC 8.20

         Petitioner alleges the trial court's instructions on malice were incomplete and contradictory, precluding a jury finding of deliberate and premeditated murder, denying a fair trial and reliable verdict. (Doc. No. 25 at 177-78.)

         Petitioner observes that pursuant to agreement between the parties and the trial court that the evidence could not support express malice, the jurors were given a modified version of CALJIC 8.11 regarding Malice Aforethought - Defined, that struck references to express malice and instructed solely on the definition of implied malice (RT 5165; CT 1961) as follows:

Malice is implied when: 1. The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. When it is shown that a killing resulted from the intentional doing of an act with implied malice, no other mental state need be shown to establish the mental state of malice aforethought.

(Doc. No. 25 at 178 n.80.)

         Petitioner observed the jurors also were given an unmodified CALJIC 8.20 instruction regarding Deliberate and Premeditated Murder, that referred to undefined express malice (CT 1962) as follow:

[A]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.

(Doc. No. 25 at 178 citing CT 1962 emphasis added.)

         Petitioner argues these two instructions were contradictory, incomplete and confusing concerning malice such that jurors could not have found willful, deliberate and premeditated murder, rendering the verdict unreliable. (Doc. No. 25 at 178.)

The California Supreme Court considered and rejected the allegation on direct appeal, stating that
Defense counsel requested that the court delete reference to express malice in CALJIC No. 8.11. Apparently, defense counsel believed there was no evidence of express malice, and the prosecutor, although he pointed to some potential evidence of express malice, concurred in the request to delete the reference in this instruction to express malice. Accordingly, a modified version of CALJIC No. 8.11 was read to the jury, as noted in the margin.17
n.17 The jury was instructed that “Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder ....” Malice was defined as follows: “Malice is implied when the killing resulted from an intentional act, the natural consequences of the act are dangerous to human life and the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with implied malice, no other mental state needs to be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.”
The court also gave CALJIC No. 8.20, which began: “All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.” (Italics added.)18
n.18 The instruction continued: “The word willful as used in these instructions means intentional. The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word premeditated means considered beforehand. [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the Defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. [¶] The law does not undertake to measure in units of time the length of [the] period in which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. [¶] The time will vary with different individuals and under different varying circumstances. [¶] The true test is not in the duration of time but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time but a mere unconsidered and rash impulse, even though it included an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and having in mind the consequences, he decides to and does kill.”
Defendant complains that despite the agreement of the parties, the jury was instructed in CALJIC No. 8.20 that express malice aforethought was required to find murder in the first degree. “To reach a first degree murder verdict, jurors were instructed to make a determination about a concept left completely undefined by the court's instructions .... A reasonable juror would have been confused by this lapse. Due to this confusion, the jury could not have found first degree murder on the basis of premeditation and deliberation. For Joyce, in particular, for whom the prosecutor proceeded on a theory of premeditated and deliberate murder, based on the court's instructions, the jury could not properly have found appellant guilty of first degree murder.” Defendant claims that confusion over elements of the charged offenses constituted a violation of his constitutional right to due process of law and that the asserted error also violated his constitutional right to a reliable penalty determination under the Eighth and Fourteenth Amendments to the United States Constitution.
As we understand defendant's contention, he claims that a jury that does not know the meaning of the term “express malice” could not properly have determined that defendant was guilty of first degree murder on a premeditated murder theory, because such a theory requires proof of express malice. Alternatively, defendant may mean that because there was no evidence of express malice, it was error not to delete the term express malice from CALJIC No. 8.20, and that the alleged error deprived defendant of the chance that the jury would find only implied malice.
It is difficult to understand why the prosecutor and the court agreed to omit the definition of express malice contained in CALJIC No. 8.11, because there was ample evidence of express malice. The prosecutor's agreement is particularly perplexing, because implied malice murder normally constitutes only murder in the second degree. (See People v. Nieto Benitez (1992) 4 Cal.4th 91, 102-104 [13 Cal.Rptr.2d 864');">13 Cal.Rptr.2d 864, 840 P.2d 969].) We surmise that the prosecutor agreed with the proposal because for each count, the prosecution was attempting to prove murder by poison, which constitutes a first degree murder whether malice is express or implied. (See People v. Diaz, supra, 3 Cal.4th at p. 538; People v. Mattison (1971) 4 Cal.3d 177, 182-183 [93 Cal.Rptr. 185');">93 Cal.Rptr. 185, 481 P.2d 193]; see also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 130, p. 748 [“Killing by poison may be criminally negligent and amount only to manslaughter ... or may be second degree felony-murder .... But killing with malice aforethought, when perpetrated by means of poison, is first degree murder”].)
To the extent defendant claims that the giving of CALJIC No. 8.20 without modification constituted error, we observe that defendant did not request a modification of this standard instruction, an instruction that was appropriate under the facts of this case. “'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Guiuan (1998) 18 Cal.4th 558, 570 [76 Cal.Rptr.2d 239');">76 Cal.Rptr.2d 239, 957 P.2d 928]; see also People v. Bolin (1998) 18 Cal.4th 297, 328 [75 Cal.Rptr.2d 412, 37');">374');">956 P.2d 37');">374]; People v. Alvarez, supra, 14 Cal.4th at p. 223; People v. Rodrigues (1994) 8 Cal.4th 1060, 1142 [36 Cal.Rptr.2d 235, 885 P.2d 1]; but see People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7 [86 Cal.Rptr.2d 243');">86 Cal.Rptr.2d 243, 978 P.2d 1171] [instructional error affecting the defendant's substantial rights may be reviewed on appeal in the absence of an objection].)
To the extent defendant claims that the jury should have been instructed on express malice if they were to be instructed on premeditated murder, the Attorney General contends that any error was invited. It was defendant's proposal, with which the prosecutor somewhat reluctantly agreed, to omit the definition of express malice from CALJIC No. 8.11. (32) When defense counsel makes a “ 'conscious, deliberate tactical choice' ” to request an instruction, any error in the giving of the instruction is invited and cannot be raised on appeal. (People v. Wader, supra, 5 Cal.4th at p. 657; see also People v. Lucero (2000) 23 Cal.4th 692, 723-724 [97 Cal.Rptr.2d 871, 3 P.3d 248].) Counsel's choice appears to have been deliberate.
Even if the claim is not barred, defendant's claim clearly is untenable on the merits. Defendant's premise that there was no evidence of express malice is faulty. The evidence was strong that defendant had formed an intent to kill Joyce, Glenna, and Martha unlawfully through the common scheme of administering paraquat. (See § 188; People v. Swain (1996) 12 Cal.4th 593, 601 [49 Cal.Rptr.2d 390');">49 Cal.Rptr.2d 390, 909 P.2d 994].) Indeed, as noted below, the jury's special circumstance finding constituted an express determination that defendant possessed a deliberate intent to kill Martha unlawfully.
Further, even if for some reason defendant was entitled to the removal of the term “express malice” from CALJIC No. 8.20, any error under California law was harmless (see People v. Flood (1998) 18 Cal.4th 470, 490 [76 Cal.Rptr.2d 180, 957 P.2d 869] [applying a standard posing the question whether there is a reasonable probability that the error affected the outcome, when instructional error under California law is found]), because defendant would be guilty of first degree murder whether the jury found express or implied malice. The evidence established as to each charge that if defendant committed murder, he committed it by means of poison. With respect to Martha, the jury specifically found that the murder was intentional, and that it was committed by means of poison, when it returned a true finding on the murder-by-poison special circumstance. The evidence was equally compelling that if defendant murdered Joyce, he did so by means of poison. As noted above, whether the jury found express or implied malice, as long as it found one or the other form of malice, the murders were in the first degree. As noted, all murder that is committed by means of poison is murder in the first degree. (People v. Diaz, supra, 3 Cal.4th at pp. 538, 568; People v. Mattison, supra, 4 Cal.3d at pp. 182-184; see also People v. Cobler (1934) 2 Cal.App.2d 37');">375, 380 [37');">37 P.2d 869');">37');">37 P.2d 869]; 1 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 130, p. 748; id., § 190, p. 800.) In fact, the question whether defendant acted with express or implied malice did not figure in either party's closing arguments to the jury.
Defendant complains that the jury was faced with determining whether express malice had been established without ever having received an instruction on express malice. This problem, of course, was caused by the request on the part of defense counsel, with the concurrence of the prosecution, to delete the definition of express malice.
Considering the instructions as a whole, we do not find any reasonable likelihood that the omission would confuse the jury or relieve the prosecution of any of its burden of proof (People v. Smithey, supra, 20 Cal.4th at p. 981; see People v. Castillo (1997) 16 Cal.4th 1009, 1016 [68 Cal.Rptr.2d 648');">68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Cain (1995) 10 Cal.4th 1, 35-36 [40 Cal.Rptr.2d 481');">40 Cal.Rptr.2d 481, 892 P.2d 1224]), because the instruction on premeditation adequately informed the jury of the state of mind required for first degree premeditated murder. As noted, “proof of unlawful 'intent to kill' is the functional equivalent of express malice” (People v. Swain, supra, 12 Cal.4th at p. 601), and the premeditation instruction included a requirement that the jury find a “killing ... preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill.” (CALJIC No. 8.20.) The jury would understand the requirements of express malice under the instructions as a whole.
Further, even assuming that the alleged error constituted an improper description of or an omission of an element of the offenses in violation of the federal Constitution, as defendant contends, any error was harmless beyond a reasonable doubt. (See People v. Flood, supra, 18 Cal.4th at pp. 490, 502-503 [harmless error]; see also People v. Cox (2000) 23 Cal.4th 665, 676-677 & fn. 6 [97 Cal.Rptr.2d 647');">97 Cal.Rptr.2d 647, 2 P.3d 1189] [harmless error]; People v. Sakarias, supra, 22 Cal.4th at p. 625 [same].) Even if the jury relied upon a premeditation theory of first degree murder rather than a murder-by-poison theory as to Joyce, it could not find premeditation and deliberation without determining that defendant had a state of mind constituting express malice. If the jury believed the prosecution had proved only implied malice, and that the prosecution had failed to prove that the murder was committed by means of poison, it is nonetheless significant that the jury was properly instructed on implied malice and was given a second degree murder instruction. That instruction directed that if the jury found only implied malice, it should return a verdict of second degree rather than first degree murder. It is clear beyond a reasonable doubt that any error did not contribute to the verdict.

Catlin, 26 Cal.4th at 147-51.

         Petitioner has not demonstrated the state supreme court acted unreasonably. For the reasons stated by that court, the instructions given adequately addressed the requirement for a joint concurrence of requisite intent and act with regard to first-degree murder and the alternative of second-degree murder. See e.g., People v. Rodrigues, 8 Cal.4th 1060, 1142-43 (1994) (holding that the court's instructions as a whole properly guided the jury's consideration of the evidence because CALJIC No. 8.20 “adequately expressed the need for joint operation of act and intent [for first-degree murder]”). Moreover, “[t]he availability of a better instruction is not a ground for reversal” under federal law. United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990) (citing United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986)).

         Additionally, to the extent that Petitioner complains of a state law violation, this Court must defer to the ruling by the California Supreme Court. The issue before this Court is whether any violation of state law regarding these instructions occurred that rose to the level of a deprivation of a right guaranteed by the federal Constitution. For the reasons stated, it did not.

         iii. Subclaim C - Burden of Proof in Death of Joyce - Special Instruction No. 8

         Petitioner alleges the trial court erred by refusing to give defense special instruction No. 8 that:

The prosecution has the burden of proving beyond a reasonable doubt that the cause of the death of Joyce Catlin was paraquat poisoning. If the evidence introduced in this case relating to the cause of death of Joyce Catlin fails to prove beyond a reasonable doubt that the cause of death of Joyce Catlin was paraquat poisoning, you must give Mr. Catlin the benefit of that doubt and find him not guilty of Count One.

(Doc. No. 25 at 179 citing CT 2007.)

         Petitioner observes the trial court refused the instruction without stating a reason (RT 5177), even though the prosecutor agreed the instruction, though cumulative, was a correct statement of the law (RT 5176-77.) Petitioner argues the trial court was required to give the instruction because it was supported by the evidence; necessary given the prosecution theory that Petitioner poisoned Joyce with paraquat; not cumulative in that the only comparable instruction given applied only to Martha; and necessary given the extensive and confusing “uncharged crimes” evidence relating to Glenna's murder. (Doc. No. 25 at 180; see also RT 5193-99, 5281-85; CT 1965.) Particularly so, according to Petitioner in that the prosecutor's primary purpose for introducing evidence of Glenna's uncharged murder was to show that Joyce was murdered by Paraquat poisoning and that Petitioner was the killer. (Doc. No. 25 at 180 citing RT 37');">37.)

         Petitioner argues the failure to give this instruction denied him a presumption of innocence and lessened the prosecution's burden of proof, denying due process rights. (Doc. No. 25 at 180-81 citing Yates v. Evatt, 500 U.S. 391, 402 (1991) (disapproved on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).)

         The California Supreme Court considered and rejected the allegation on direct appeal, stating that:

Defendant requested that the court instruct the jury as follows: “The prosecution has the burden of proving beyond a reasonable doubt that the cause of death of Joyce Catlin was paraquat poisoning. If the evidence introduced in this case relating to the cause of death of Joyce Catlin fails to prove beyond a reasonable doubt that the cause of death ... was paraquat poisoning, you must give Mr. Catlin the benefit of the doubt and find him not guilty of Count One.” The prosecutor objected on the ground that the instruction was cumulative. He stated: “The jury is instructed that they have to find beyond a reasonable doubt that Mr. Catlin did intentional acts that resulted in the death of Joyce Catlin, and that's covered in the instructions defining murder and reasonable doubt.” The trial court declined to give the instruction requested by defendant.
Defendant claims that the giving of the special instruction was imperative, because of the circumstance that most of the prosecution's evidence with respect to Joyce related to the issue of cause of death, and he points out that the court granted his request for a similar instruction with respect to the murder of Martha. He surmises that the asymmetry in instructions would cause the jury to believe a lesser level of proof was required to establish the cause of Joyce's death, thereby improperly relieving the prosecution of its full burden of proof. He points to the introduction of other-crimes evidence to establish the cause of Joyce's death, contending that in order to avoid a guilt determination on the basis of a finding of criminal propensity, it was particularly important to require that the cause of Joyce's death be proved beyond a reasonable doubt. Finally, he contends the instruction was necessary to clear up the confusion caused by the malice instructions discussed above.
The trial court properly could refuse the instruction on the ground that the point adequately was covered in the instructions related to the prosecution's burden of proof and the elements of murder, as well as in the instruction on proximate cause. (See People v. Garceau (1993) 6 Cal.4th 140, 192-193 [24 Cal.Rptr.2d 664');">24 Cal.Rptr.2d 664, 862 P.2d 664] [the court may refuse a request for an instruction the point of which was covered adequately by the instruction requiring proof beyond a reasonable doubt].)
Defendant did not contend at trial that the instruction was necessary because a similar one was to be given with respect to the murder of Martha, or that the asymmetry in instructions as to the two murders would confuse the jury. Even assuming his claim was not waived, we do not believe that, viewing the instructions as a whole, it is reasonably likely (see People v. Clair, supra, 2 Cal.4th at p. 663) that the jury would be misled simply because it received a pinpoint instruction directing it to determine whether the cause of Martha's death was, beyond a reasonable doubt, paraquat poisoning, but did not receive a similar pinpoint instruction with respect to the death of Joyce. As noted above, in light of the instructions on proof beyond a reasonable doubt, on the elements of the crimes charged, and on proximate cause, the jury would not be misled as defendant claims, particularly because neither the defense nor the prosecution argued to the jury that a different standard applied as between the two charged murders. It is not reasonably likely that under the instructions as a whole, jurors mistakenly would conclude that defendant could be convicted of the murder of Joyce even if they had a reasonable doubt that she might have died of natural causes, or that they would conclude that defendant could be convicted of the murder of Joyce on the basis of evidence of defendant's criminal propensity. The circumstance that causation was a major issue in the trial would not add to the risk that the jury would be misled with respect to the burden of proof. We have rejected the contention that the other-crimes evidence constituted evidence of criminal propensity, and observe that the jury properly was instructed on the limited purpose for which they could consider the evidence of other crimes. Finally, we do not believe the proposed instruction could have had any effect on the jury's understanding of the instructions on malice discussed above. In sum, the requested instruction was unnecessary, and the trial court did not err in refusing to give it.

Catlin, 26 Cal.4th at 151-53.

         The state supreme court did not act unreasonably in these regards. The instructions given to the jury, noted by the state supreme court, required the specified elements of the charged offense be found beyond a reasonable doubt. The significance of an omitted instruction is evaluated by a comparison of the omitted instruction with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (citing Kibbe, 431 U.S. at 156).

         Although an instruction comparable to that requested was given as to Martha, the state supreme court could note Petitioner was charged with a murder-by-poison special circumstance in the death of Martha but not in the death of Joyce. (CT 1965.) Petitioner has not demonstrated that the admission of the “uncharged crimes” evidence relating to Glenna's murder provided reason to find otherwise, for the reasons stated. (See claims 1-5, ante.)

         Even if the state court erred as a matter of state law in refusing to give the requested instruction, state law error alone does not support federal habeas relief. Dunckhurst, 859 F.2d at 114.

         iv. Subclaim D - Evidence Specific to Charged Crime - Special Instruction No. 7

         Petitioner alleges the trial court erred in refusing to give defense special instruction No. 7 that:

The evidence applicable to each offense charged must be considered as if it were the only accusation before the jury.

(Doc. No. 25 at 181 citing CT 2006.)

         The prosecutor objected on ground the jury can consider the other offenses in deciding each separate count. (RT 5176.) The trial court refused the instruction on grounds it was “cumulative also.” (Id.)

         Petitioners cites to People v. Kemp, 55 Cal. 2d 458, 477 (1961) (evidence applicable to each offense to be considered as if only accusation before jurors), arguing the instruction was not cumulative and that it was necessary given the trial court's refusal to sever the counts and the absence of any instruction informing the jury that evidence for each crime should be considered on its own merits subject to the prosecutions burden of proving guilt beyond a reasonable doubt. (Doc. No. 25 at 181 citing to claim 6.)

         Petitioner argues prejudice because the unaggregated evidence relating to the separate counts I and II is insufficient to support a conviction on either count beyond a reasonable doubt. (Doc. No. 25 at 182-83.) He argues the uncharged crimes evidence was improperly admitted to fill evidentiary gaps. (Id.) Here again, he argues the failure to properly instruct served to lessen the prosecution's burden of proof, violated his due process rights.

         The California Supreme Court considered and rejected the allegation on direct appeal, stating that:

Defendant contends the trial court erred in refusing to give a proposed special instruction stating: “Evidence applicable to each offense charged must be considered as if it were the only accusation before the jury.”
The court correctly refused to give the instruction. Contrary to the import of the proposed special instruction, under Evidence Code section 1101 the jury properly could consider other-crimes evidence in connection with each count, and also could consider evidence relevant to one of the charged counts as it considered the other charged count. (See People v. Beagle (1972) 6 Cal.3d 441, 456 [99 Cal.Rptr. 313');">99 Cal.Rptr. 313, 492 P.2d 1], overruled on other grounds in People v. Castro (1985) 38 Cal.3d 301');">38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111].) As explained above, evidence regarding the murder of Joyce would have been cross-admissible in a separate trial for the murder of Martha, and vice versa. To the extent that defendant requested the instruction in order to require the jury to arrive at a verdict on each count separately, his requested instruction was cumulative, because that purpose was served by the giving of the following rendition of CALJIC No. 17.02: “Each count charges a distinct crime. You must decide each count ... separately. The Defendant may be found guilty or not guilty of either or both of the crimes charged. Your finding as to each count must be stated in a separate verdict.” Defendant's claim of instructional error is unpersuasive.

Catlin, 26 Cal.4th at 153.

         The state supreme court reasonably rejected the allegation. As discussed by that court, the instructions given jury required the specified elements of each charged offense be found beyond a reasonable doubt. Petitioner's requests to sever the counts and provide for separate juries properly were rejected including on grounds of cross-admissibility of evidence. (See claim 6, ante.) Petitioner has not demonstrated that the admission of the “uncharged crimes” evidence relating to Glenna's murder provided reason to find otherwise. (See claims 1-5, ante.)

         As above, any state law instructional error is not alone a basis for relief in this proceeding. Dunckhurst, 859 F.2d at 114.

         v. Subclaim E - Intentional Administration of Poison - Martha's Murder - CALJIC 8.81.19

         Petitioner alleges that as to the poison-murder special circumstance charged in the death of Martha (see Penal Code section 190.2(a)(19)), the trial court erred by failing to instruct the jury that it had to find Petitioner killed Martha “by the intentional administration of poison.” (Doc. No. 25 at 184.)

         The record reflects the jury was instructed with CALJIC 8.81.19 that:

To find that the special circumstance, referred to in these instructions as murder by administration of poison, is true, each of the following facts must be proved: 1. The killing was intentional, and 2. Defendant committed the murder by the administration of poison. The word “poison” means any substance introduced into the body by any means which by its chemical action is capable of causing death. Paraquat is a poison.

(Doc. No. 25 at 184 citing CT 1980.)

         Petitioner argues the instruction improperly omitted “the intent to use a particular means” (Doc. No. 25 at 185) allowing the jury to find the special circumstance true based solely upon the “intent to kill.” (Doc. No. 25 at 184.) That is, he argues “a special circumstance which merely duplicates the findings necessary for a first-degree murder by means of poison fails to narrow the class of capital crimes sufficiently to meet the requirements of the Eighth Amendment. (Doc. No. 25 at 185 citing Wade v. Calderon, 29 F.3d 1312, 1320 (9th Cir. 1994) (overruling recognized by Pensinger v. Chappell, 787 F.3d 1014, 1030 (9th Cir. 2015) (torture murder special circumstance instruction constitutionally insufficient where it failed to require intent to torture); see also Zant v. Stephens, 462 U.S. 862, 876-877 (1983) (regarding failure to narrow the class of persons eligible for the death penalty); People v. Davenport, 41 Cal.3d 247, 266 (1985) (addressing need for “principled basis for distinguishing capital murder from any other murder.”).

         Petitioner argues the omission of a necessary element of a special circumstance, that Petitioner killed Martha by the intentional administration of poison, is structural error requiring reversal without any showing of prejudice. (Doc. No. 25 at 185.)

         The California Supreme Court considered and rejected the claim on direct appeal, stating that:

Section 190.2, subdivision (a)(19), defines the murder-by-poison special circumstance as a murder in which “[t]he defendant intentionally killed the victim by the administration of poison.” Defendant contends that in instructing the jury, the court omitted an essential element that defendant describes variously as a “specific intent to bring about a death by poison, ” or an “intent to administer poison, ” or an “intent to administer poison for the purpose of killing the victim.” The instruction given, he claims, required only proof of intent to kill. The instruction omitted an essential element of the special circumstance allegation, he claims, in violation of the due process clause of the federal Constitution. Automatic reversal without regard to prejudice is required, according to defendant.
The trial court instructed the jury pursuant to CALJIC No. 8.81.19, with slight variations, as follows: “To find that the special circumstance [] referred to in these instructions as murder by administration of poison is true, each of the following elements must be proved: [¶] One, that the killing was intentional and two, the Defendant committed the murder by the administration of poison.” It also instructed: “The word poison means any substance introduced into the body by any means which by its chemical action is capable of causing death. Paraquat is a poison.” As respondent contends, the instruction given by the court reasonably would be understood as requiring proof that the defendant administered poison with the intent to kill the victim. The instruction required proof that there was an intentional killing and that the defendant “committed the murder by the administration of poison.” Read together in a commonsense fashion, a jury would understand from this language that proof is required that defendant administered the poison with the intent to kill the victim.
In any event, even if the instruction actually had omitted an element of the special circumstance charge (which, we reiterate, we have concluded was not the case), under the evidence presented in this case and the arguments of counsel, it is not reasonably possible that the jury could have found that defendant had the intent to kill Martha and that the murder occurred by means of poison, but that the defendant did not intend to use poison to kill Martha. Any error would be harmless beyond a reasonable doubt. (See Neder v. United States (1999) 527 U.S. 1, 9, 18 [119 S.Ct. 1827');">119 S.Ct. 1827, 1833-1834, 1838, 144 L.Ed.2d 35] [applying harmless error standard to instructional error omitting an element of an offense]; People v. Cox, supra, 23 Cal.4th at pp. 676-677 & fn. 6.)

Catlin, 26 Cal.4th at 153-54.

         Petitioner has not shown the state supreme court acted unreasonably in reject the allegation. As noted, in evaluating a claim of instructional error, a single instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A reviewing court does not engage in a technical parsing of the instruction's language, but instead approaches the instructions in the same way that the jury would --with a “commonsense understanding of the instructions in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368. Lastly, federal courts presume that juries follow instructions, including cautionary instructions. Weeks, 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85.

         Here, upon application of the above standards, it is unlikely a reasonable juror would interpret the instructions in the manner suggested by Petitioner, for the reasons suggested by the state supreme court. Especially so, as the burden on petitioner is especially heavy “where ... the alleged error involves the failure to give an instruction.” Clark, 450 F.3d at 904.

         Petitioner has not demonstrated instructional error that infected the entire trial denying him a fair trial. Kibbe, 431 U.S. at 154. Nor has he reasonably demonstrated prejudice under Brecht.

         vi. Subclaims F, G, H, I - Proximate Cause Instructions - CALJIC 3.41, 8.55, 8.58

         Petitioner alleges the trial court erred by giving proximate cause instructions, CALJIC 8.55 as modified and CALJIC 8.58, which included a confusing and later disapproved definition of proximate cause. (Doc. No. 25 at 187-90 citing Mitchell v. Gonzales, 54 Cal.3d 1041, 105');">054 (1991). He argues particularly that here, the disapproved language allowed an act to be considered the proximate cause of death as a matter of law where death occurred in “a natural and continuous sequence” with that act, such that the jury was able to find him guilty of Martha's death even though she died from pre-existing circulatory disease. (Doc. No. 25 at 186-87 citing RT 3260-63.)

         The record reflects the trial court with the agreement of defense counsel (see RT 5166) instructed the jury that:

To constitute murder there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.
The proximate cause of a death is a cause which, in natural; and continuous sequence, produces the death, and without which the death would not have occurred.
In this case, the prosecution has the burden of proving beyond a reasonable doubt that paraquat poisoning was a proximate cause of Marth Catlin's death. If the evidence in this case fails to prove beyond a reasonable doubt that paraquat poisoning was a proximate cause [of] Martha Catlin's death, Mr. Catlin is entitled to a verdict of not guilty as to Count Two.

(CALJIC 8.55 as modified; CT 1965.)

If a person unlawfully inflicts a physical injury upon another person and that injury is a proximate cause of the latter's death, such conduct constitutes an unlawful homicide even though the injury inflicted was not the only cause of the death. Moreover, that conduct constitutes unlawful homicide even if: 1. The person injured had been already weakened by disease, injury physical condition or other cause, 2. It is probable that a person in sound physical condition injured in the same way would not have died from the injury, 3. It is probable that the injury only hastened the death of the injured person, and 4. The injured person would have died soon thereafter from another cause or other causes.

(CALJIC 8.58; CT 1966.)

         Petitioner argues the trial court compounded its error by rejecting the defense request to give CALJIC 3.41 regarding More Than One Proximate Cause/Concurrent Cause, which provides for concurrent causation by two or more persons where each was a substantial factor contributing to death. (Doc. No. 188 citing CT 2010.) Petitioner observes the prosecutor believed CALJIC 3.41 had to be given unless waived. (Doc. No. 25 at 188 citing RT 5163.) Yet the trial court, following deferral of discussions at the request of the defense (RT 5163-64), ultimately refused the instruction, apparently in favor of the above noted modified CALJIC 8.55 and CALJIC 8.58. (RT 5166).

         Petitioner argues CALJIC 3.41 would have cured the alleged noted deficiencies he found in CALIC 8.55 and 8.58.

         CALJIC 3.41, had it been given would have instructed the jury that:

More Than One Proximate Cause/Concurrent Cause
There may be more than one proximate cause of the --- (result of the crime). When the conduct of two or more persons contributes concurrently as a proximate cause of the ---(result of the crime), the conduct of each is a proximate cause of the --- (result of the crime) if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the --- (result of the crime) and acted with another cause to produce the --- (result of the crime).
[If you find that the defendant's conduct was a proximate cause of ---(injury, death, etc.) to another person, then it is not defense that the conduct of some other person [, even the [injured] [deceased] person, ] contributed to the - (injury, death, etc.).]

(CT 2010.)

         Petitioner argues that juror confusion over the term “proximate cause” rendered his murder conviction and sentence unreliable. (Doc. No. 25 at 189.) He argues that in Martha's case, these defective instructions may have removed Martha's existing medical conditions and treatment from the jury's proximate cause deliberations. (Doc. No. 25 at 190). He argues that jurors may have convicted him of the capital charge if Martha's death “sequentially followed” his unlawful act even if the act did not bring about the death (Doc. No. 25 at 187), denying him a presumption of innocence and lessening the prosecution's burden of proof so as to deprive him of due process. (Doc. No. 25 at 190 citing Yates, 500 U.S. at 402.)

         Petitioner points to the testimony of the autopsy physician, Dr. Dollinger, who initially opined that absent any other cause of death Martha died from “acute coronary insufficiency”, citing her age (79 years) and pre-existing coronary artery disease. (Id., citing RT 3260-63.) Petitioner's trial defense was that he denied poisoning Martha and contends that he did not have access to her at the time she would have ingested paraquat. (Doc. No. 25 at 186; see RT (Bates) 8645-46.)

         The California Supreme Court considered and rejected the allegation on direct appeal, stating that:

Defendant contends that the jury instructions on proximate cause erroneously would have permitted conviction for the murder of Martha even if the jury believed that the principal cause of her death was a circulatory disease.
The court instructed the jury on the issue of proximate cause pursuant to modified versions of former CALJIC Nos. 8.55 and 8.58, as follows: “[¶] To constitute murder, there must be, in addition to the death of a human being, an unlawful act which was the proximate cause of that death. [¶] The proximate cause of a death is a cause which in natural and continuous sequence, produces the death and without which the death would not have occurred. [¶] In this case, the Prosecution has the burden of proving beyond a reasonable doubt that paraquat poisoning was a proximate cause of Martha Catlin's death. If the evidence in this case fails to prove beyond a reasonable doubt that paraquat poisoning was a proximate cause of Martha Catlin's death, Mr. Catlin is entitled to a verdict of not guilty as to Count II. [¶] If a person unlawfully inflicts a physical injury upon another person and that injury is a proximate cause of the latter's death, such conduct constitutes an unlawful homicide, even though the injury inflicted was not the only cause of the death. [¶] Moreover, that conduct constitutes unlawful homicide even if one, the person injured had been already weakened by disease, injury, physical condition or other cause. [¶] Two, it is probable that a person in sound physical condition injured in the same way would not have died from the injury and three, it's probable that the injury only hastened the death of the injured person and four, the injured person would have died soon thereafter from another cause or causes.”
Defendant claims that these instructions misstated the law by permitting the jury to return a guilty verdict on a charge of murder if it found concurrent causes of death, even if the criminal act was not a principal cause of death. The law provides, however, that as long as the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death. Rather, it is required that the cause was a substantial factor contributing to the result: “ '[N]o cause will receive judicial recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result.' ” (People v. Caldwell (1984) 36 Cal.3d 210, 220 [203 Cal.Rptr. 433');">203 Cal.Rptr. 433, 681 P.2d 274]; see also In re M.S. (1995) 10 Cal.4th 698, 719-720 [42 Cal.Rptr.2d 355');">42 Cal.Rptr.2d 355, 896 P.2d 1365].)
This is true even if the victim's preexisting physical condition also was a substantial factor causing death. (People v. Wattier (1996) 51 Cal.App.4th 948, 953 [59 Cal.Rptr.2d 483].) “So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition ... in no way destroys the [defendant's] criminal responsibility for the death.” (People v. Stamp (1969) 2 Cal.App.3d 203, 210 [82 Cal.Rptr. 598]; see also People v. Wattier, supra, 51 Cal.App.4th at p. 953; People v. Funes (1994) 23 Cal.App.4th 1506, 1523 [28 Cal.Rptr.2d 758]; 1 Witkin & Epstein, Cal. Criminal Law, supra, Elements, § 37');">37, p. 243');">p. 243 [“A defendant may also be criminally liable for a result directly caused by his or her act, even though there is another contributing cause”].)
Defendant also contends that the court should have given CALJIC No. 3.41, which states expressly that when there are concurrent causes of death, the defendant's conduct is a proximate cause of death “if that conduct was also a substantial factor contributing to the result.”
Even if defendant is correct that the clarifying instruction should have been given, we do not believe it was reasonably probable that its omission affected the verdict. (See People v. Flood, supra, 18 Cal.4th at p. 490.) The evidence was overwhelming that Martha and Joyce died of paraquat poisoning and not from natural causes, and even as to Martha, who had some preexisting physical problems, the evidence was overwhelming that paraquat poisoning was at least a substantial factor in, if not the sole cause of, her death.
Defendant also complains that the instructions the court gave on causation subsequently were criticized by this court in People v. Roberts (1992) 2 Cal.4th 271, 311-313 [6 Cal.Rptr.2d 276, 826 P.2d 274]. He complains that under the instructions as given, “some jurors may have believed that [he] did an unlawful act which nevertheless did not bring about Martha's death; however, based on the instructions read, those jurors could have erroneously convicted [him] of a capital offense if they concluded Martha's death sequentially followed that act.”
We do not believe that under the instructions given, requiring that defendant's act constitute a cause that “produces ... death and without which the death would not have occurred, ” the jurors reasonably could have concluded that they could convict defendant of the murder of Martha if they believed defendant committed an unlawful act that did not bring about her death, but was only followed temporally by her death. The instructions made it clear that the prosecution had the burden of proving that defendant's administration of paraquat was a cause of Martha's death, not just that it occurred near the time of her death. In fact, as respondent points out, at defendant's request the jury also was instructed on attempted murder to cover just the eventuality posited by defendant here-an attempt to poison Martha that did not cause her death.
As for our criticism of the proximate cause instruction in People v. Roberts, supra, 2 Cal.4th 271, we acknowledged a concern previously expressed in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 105');">050-105');">051 [1 Cal.Rptr.2d 913, 819 P.2d 872], in the context of another instruction, that the proximate cause instruction placed “undue emphasis on physical or temporal nearness.” (People v. Roberts, supra, 2 Cal.4th at p. 313.) We had expressed the fear in Mitchell v. Gonzales, supra, 54 Cal.3d 1041, that the proximate cause instruction might cause jurors “to focus improperly on the cause that is spatially or temporally closest to the harm.” (Id. at p. 105');">052.) But in the present case, as we also explained in Roberts, “any such confusion on the jury's part could only benefit defendant, ” because defendant's act was not necessarily close in time-or place-to the death of each victim. (People v. Roberts, supra, 2 Cal.4th at p. 313.)
Roberts also recognized that the instruction on proximate cause might be confusing simply because of its poor grammar and the uncertainty of the meaning of the term “proximate cause.” (People v. Roberts, supra, 2 Cal.4th at p. 313.) We do not believe, however, that these ambiguities in the instruction could have caused a juror to conclude that defendant's act might be a proximate cause of either victim's death simply because it occurred near the time of the death or illness of the victim, even though that juror did not believe that defendant's act caused the death.
Defendant contends that the proximate cause instructions lightened the prosecutor's burden of proof because they “removed from the jury's consideration other factors concerning Martha's medical condition and treatment which should have been considered in the jury's determination of 'proximate cause.” He claims a violation of his right to due process of law and to a reliable determination of guilt and penalty.
Defendant does not specify what “other factors” he believes the jury should have been permitted to consider. The instructions did not direct the jury to ignore evidence regarding Martha's poor health or her age. Rather, they asked the jury to determine whether defendant's administration of poison was a cause without which Martha would not have died. The instructions did not relieve the prosecution of any of its burden of proof.
Defendant claims that cumulatively, the instructional errors he has alleged violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Because we do not find any error of substance, we do not agree.

Catlin, 26 Cal.4th at 154-57.

         The state supreme court reasonably rejected the allegation. Any state law instructional error is not along a basis for federal habeas relief. Dunckhurst, 859 F.2d at 114. The instructions given required the jury find Petitioner's criminal acts were a factor without which Martha's death would not have occurred even if her allegedly predisposing medical conditions also contributed. The instructions reasonably did not suggest temporal proximity alone constituted proximate cause. Moreover, the jury was required to make its findings of the essential elements of the charged crimes beyond a reasonable doubt. (See CT 1955.)

         Additionally, the state supreme court reasonably could find the evidence that Martha died from paraquat poisoning was substantial. (See claims 30 and 31, post.)

         vii. Subclaim J - Cumulative Error - Guilt Phase Instructions

         Petitioner argues the foregoing alleged instructional errors taken as a whole violated his noted constitutional rights and resulted in structural error and were not harmless under Brecht. (Doc. No. 25 at 175, 191.)

         The California Supreme Court considered and rejected the allegation on direct appeal, stating that:

Defendant claims that cumulatively, the instructional errors he has alleged violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Because we do not find any error of substance, we do not agree.

Catlin, 26 Cal.4th at 157.

         Petitioner has not shown the state supreme court was unreasonable in these regards. The Ninth Circuit has stated “the Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal.” Parle v. Runnels, 505');">05 F.3d 922, 928 (9th Cir. 2007) (citing Donnelly v. DeChristoforo, 37');">37');">416 U.S. 637');">37, 643 (1974)). Here, for the reasons stated ante and post, there were no individual errors to cumulate.

         viii. Conclusions

         The state supreme court reasonably could find trial court did not err by giving erroneous guilt phase jury instructions.

         Moreover, that court reasonably could find Petitioner failed to show structural or more than harmless error as a result of the alleged constitutional deprivations, individually or cumulatively.

         Accordingly, it does not appear that the California Supreme Court's rejection of claim 18 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         Claim 18 shall be denied.

         11. Claim 20

         Petitioner alleges that the trial court erred by overruling defense chain of custody objections to testimony relating to unidentified and poorly preserved tissue evidence from Joyce's body, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 25 at 197-201.)

         a. State Court Direct and Collateral Review

         The claim state agents failed to properly preserve Joyce's tissue evidence and the trial court erred in overruling defense foundational objection based on this evidence was raised on direct appeal and denied on state law chain of custody grounds. Catlin, 26 Cal.4th at 133-36.

         The claim was raised in the second state habeas petition asserting denial of a fair trial, the right to confront evidence, and the right to a reliable conviction and sentence under the Fifth, Sixth, and Eighth Amendments and denied on the merits and on procedural grounds. (Order No. S1737');">3793.)

         b. Analysis

         Petitioner argues that the trial court, over counsel's objection, allowed prosecution expert Dr. Stephens to testify about the cause of Joyce's death based upon slides of her tissue notwithstanding the prosecution's failure to establish chain of custody as to the tissue slides. (Doc. No. 25 at 197-99 citing People v. Diaz, 3 Cal.4th 495, 559 (1992) (burden is on the party offering the evidence to show to a reasonable certainty there was no alteration).

         Petitioner points to the allegedly deficient chain of custody evidence running from the May 6, 1976 autopsy by Dr. Swinyer to Dr. Stephens' 1984 examination of the tissue slides. He argues the ten labelled blocks of preserved tissue were stored at Mercy Hospital in Bakersfield for some unknown time; transferred to the Kern County coroner's office; mailed to Standard University in 1984 for examination by pathologist Dr. Charles Carrington; and then sent to Dr. Stephens for examination. (See Doc. No. 25 at 197-201 citing RT 3188-3205');">05, 3448-50, 3683-90, 37');">3730-69, 3801-02, 3844-56.)

         Petitioner argues that of the ten paraffin blocks received by Dr. Stephens, three of the blocks did not have originally labelling as coming from Joyce's body or any particular source. (Id.) He argues that the prosecution failed to fully account for possession and custody of the tissue removed from Joyce's body such that it is not reasonably certain the evidence was unaltered. (Doc. No. 25 at 200 citing Diaz, 3 Cal.4th at 559.) He argues that there is no way of knowing whether the tissue examined by Dr. Stephens supporting his conclusions as to cause of death Joyce's death came from Joyce's body. (Doc. No. 25 at 200.)

         The state supreme court rejected the claim, stating that:

Defendant contends that there was a break in the chain of custody of the tissue that was removed from Joyce's body during the autopsy. He contends that this break cast doubt on the origin of the tissue ultimately analyzed by Dr. Stephens and relied upon by him to support the conclusion that Joyce died of paraquat poisoning. He asserts that although the tissue blocks were labeled when they were removed, prepared for analysis, and deposited in the hospital safe after the autopsy in 1976, some of the tissue received at Stanford Hospital in 1984 and thereafter transmitted to Dr. Stephens for analysis was not marked with the coroner's label. Defendant also contends that the prosecution failed to fulfill its duty properly to preserve material evidence, but he fails to offer any authority or argument in support of this claim, so it is not considered here. (See People v. Hardy (1992) 2 Cal.4th 86, 150 [5 Cal.Rptr.2d 796');">5 Cal.Rptr.2d 796, 825 P.2d 781].)
At trial, defendant objected to testimony by Dr. Stephens that the slides analyzed by him reflected that Joyce died of paraquat poisoning, on the ground that there was an inadequate foundation for this opinion testimony. On each occasion, the trial court overruled the objection without prejudice to renewal if further prosecution witnesses were unable to supply links in the chain of custody. Defendant does not assert that the objection was renewed, and our reading of the record does not disclose further objection. Respondent contends that defendant waived his chain of custody claim because, at the close of the prosecutor's case-in-chief, defendant stipulated that although the medical records relied upon by the various expert witnesses would not be presented to the jury, the jury could rely, for the truth of that testimony, upon the expert witnesses' testimony characterizing the contents of the medical records. We do not believe that this stipulation clearly constituted a waiver of the chain of custody claim. The trial court already had rejected defendant's objection to Dr. Stephens's opinion testimony on chain of custody grounds.
The stipulation merely served to relieve the jury of the burden of examining voluminous medical records, and did not constitute a withdrawal of the previous chain of custody objection.
Whether or not there was a waiver, either because of the stipulation or because of defendant's apparent failure to renew the objection after the prosecution supplied additional chain of custody witnesses, we reject on the merits defendant's contention that Dr. Stephens's opinion testimony that Joyce died of paraquat poisoning should have been excluded on chain of custody grounds.
In a chain of custody claim, “ '[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.' [Citations.]” (People v. Diaz, supra, 3 Cal.4th at p. 559; see also Méndez, Cal. Evidence (1993) § 13.05');">05, p. 237');">37 [“While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering”].) The trial court's exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448 [232 Cal.Rptr. 471].)
We conclude that the trial court did not abuse its discretion in overruling defendant's objection to Dr. Stephens's testimony based on chain of custody.13 The tissue was removed at the autopsy and immediately was labeled with the autopsy number A-26-76. It was cut into pieces and placed in a cassette marked A-26-76 and transmitted to a technician who processed it into slides that also were labeled with the autopsy number. The labeled tissue blocks were placed in a container in a drawer and went into storage at Mercy Hospital.
n.13 We do not reach defendant's contention that any failure to preserve the claim for appeal constituted ineffective assistance of counsel or that error in admitting the evidence constituted a due process violation, because we reject the claim that the prosecution failed to establish an adequate chain of custody.
In 1984, a labeled box of slides was transferred from Mercy Hospital storage to the Kern County Coroner's Office storage safe. A Kern County Coroner's Office investigator obtained a box labeled A-26-76 from the safe and mailed the labeled box to a physician at the Stanford University School of Medicine's Department of Pathology. The package contained 10 tissue blocks, two of which were missing their labels. Each of the 10 tissue blocks received at Stanford was assigned a Stanford number. A technician at Stanford prepared two sets of slides from tissue from each of the 10 blocks. The tissue was sent to Dr. Boyd Stephens in San Francisco. Dr. Stephens examined one or more slides from each of the 10 tissue blocks. It was based upon the examination of these slides that Dr. Stephens testified that he believed that Joyce died by paraquat poisoning.
We do not agree with defendant that Dr. Stephens's opinion was based upon tissue samples of unknown origin. Although some of the tissue blocks prepared at the time of the autopsy lost their identifying labels while they were stored at Mercy Hospital, all of the blocks were contained in a box bearing the label A-26-76, and there is no indication of tampering. We note that the storage area had some security in that it required persons entering to sign in. In addition, Dr. Stephens examined slides from all the tissue blocks -most of which were labeled properly-and formed the opinion not only that the tissue indicated paraquat as a cause of death, but that all the slides came from the same person. Dr. Stephens reached the latter opinion not because of anything distinctive about the tissue itself, but because of the matching shape and outline of the samples as they had been cut from the tissue blocks. The circumstance that Dr. Swinyer and Dr. Kilburn testified that unlabeled tissue slides could not be identified as coming from the same person, at least without DNA testing, went to the weight of Dr. Stephens's opinion, not the admissibility of the evidence.
Dr. Stephens's opinion was based upon an examination of the slides, the great majority of which came from tissue blocks that at all times had been properly labeled. All the tissue blocks, including the unlabeled ones, were stored together at Mercy Hospital and arrived in a container labeled A-26-76. The trial court could conclude with reasonable certainty that no alteration of evidence had occurred.
In addition, Dr. Stephens's opinion was not based solely on the tissue analysis, but also on the hospital records of the clinical course of Joyce's illness as well as autopsy observation of pulmonary fibrosis.
Finally, we note that the cause of Joyce's death was not established solely through examination of the tissue sent to Dr. Stephens, as to which there was a chain of custody objection. Other tissue obtained by Dr. Swinyer at the time of Joyce's autopsy was sent in 1976 to Dr. Kilburn, an expert on lung pathology, and he too formed the opinion that the cause of death was paraquat poisoning.

Catlin, 26 Cal.4th at 133-36.

         Petitioner has not shown the California Supreme Court's rejection of the claim was unreasonable. Particularly as that court noted, Petitioner has not demonstrated gaps in the chain of custody raising serious questions as to foundation and tampering. The tissue was removed during autopsy, processed for histological review, labelled with the distinctive number A-26-76 as being from Joyce's autopsy, placed in a single box also labelled as A26-76 and placed into secured storage at Bakersfield's Mercy Hospital. (RT 37');">3731-44).

         The box with the tissue blocks was transferred to the Kern County Coroner in 1984, who then mailed it to Stanford University's pathology department. Stanford technicians observed the original autopsy number and renumbered the ten tissue blocks, prepared slides from each block and sent the blocks to Dr. Stephens. (RT 3683-87, 3844-50.) Dr. Stephens also observed the original autopsy number on at least some of the blocks (RT 37');">3769) and had slides made from the blocks and examined at least one slide from each block. (RT 37');">3759-69, 3801-02.) Nothing in the records suggests any interruption in the chain of possession or that the tissue blocks were lost, separated, altered, or contaminated. The state supreme court could find to a reasonable certainty the tissue Dr. Stephens examined came from Joyce's autopsy.

         Moreover, Dr. Stephens testified that he looked at least one slide from each block. (RT 3802.) Most of the slides Dr. Stephens examined had been harvested from tissue blocks that at all times had been properly labelled. He was able to opine that all the slides came from the same tissue donor given the matching characteristics of the tissue samples cut from the ten paraffin blocks. (See RT 3815-16, 3824-25.) His opinion was corroborated by consideration of Joyce's hospital and autopsy records including observed pulmonary fibrosis. (RT 37');">3764-65.)

         Petitioner claims that state agents failed to properly preserve autopsy slides of tissue from Joyce's body is discussed separately below as prosecutorial misconduct.

         c. Conclusions

         Petitioner has not demonstrated that: the California Supreme Court was unreasonable in rejecting the chain of custody claim regarding Joyce's tissue evidence, and counsel's objection to Dr. Stephens's testimony thereon was improperly denied. 28 U.S.C. § 2254(d)(1), (2).

         It does not appear that the California Supreme Court's rejection of claim 20 was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

         Claim 20 allegations of trial court error shall be denied.

         12. Claim 25

         Petitioner alleges the trial court erred by denying defense counsel's oral pre-trial motion to limit the attorney general's contact with personnel of the Kern County District Attorney's Office, violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 25 at 248-51.)

         a. State Court Direct and Collateral Review

         Petitioner's allegation that denial of his motion to limit contact between the Attorney General's Office and the Kern County District Attorney's office denied his right to a confidential attorney-client relationship, violating the Fifth and Sixth Amendments was raised on direct appeal and denied on procedural grounds as abandoned at trial. Catlin, 26 Cal.4th at 162.

         Petitioner raised the claim in his second state habeas petition on Fifth, Sixth, Eighth, and Fourteenth Amendment grounds asserting denial of rights to a fair trial, due process, a reliable guilt and penalty determination, and freedom form cruel and unusual punishment. The California Supreme Court denied the claim on procedural grounds (as to other than ineffective assistance of counsel and the constitutionality of the death penalty), as raised and rejected on appeal (In re Waltreus). (Order S1737');">3793.)

         b. Analysis

         Petitioner argues the trial court erred by failing to grant counsel's post-recusal oral motion to limit ongoing contact between the deputy attorney general Jesse Witt and the previously recused offices of the Kern County District Attorney; contact which allegedly included Witt's use of District Attorney offices and resources. (Doc. No. 25 at 249 citing RT 62-64; see also Cal. Penal Code § 1424 (providing for granting recusal of prosecutor based upon conflict of interest).) Petitioner argues that here, the recusal order became the law of the case. (Doc. No. 25 at 250.)

         Petitioner argues that Witt, through district attorney investigator Wally Newport, who had previously worked on the case and for Petitioner's prior defense counsel, Lee Felice, may have gained access to confidential defense information including information Petitioner provided to Felice during their attorney-client relationship. (Doc. No. 25 at 248, 249. 251, citing RT 59-66.) Petitioner argues Witt thereby intentionally violated the recusal order. (CT 59-63; see also Doc. No. 25 at 235 citing the recusal order; CT 1781-A, 1782.)

         Petitioner points to Witt's alleged improper ongoing contact with and use of offices and resources of the Kern County District Attorney. (Doc. No. 25 at 234, 249 citing RT 62-64.) He argues Felice continued to work with Newport and Newport continued to work on Petitioner's case. (Doc. No. 25 at 236 citing CT 1773-75.) Petitioner suggest all this amounted to invasion of the defense camp and compromised confidential defense strategy. (Doc. No. 25 at 236, 245.)

         The record reflects that on September 14, 1988, the trial court recused from the case the entire Kern County District Attorney's Office because Petitioner's prior counsel, Lee Felice, had gone to work for that office. (Doc. No. 25 at 248 citing CT 1587-90, 1781-A-1782.) The recusal order was affirmed in an unpublished decision of the Court of Appeal for the Fifth Appellate District (SCT Vol. IX-B at 3-11) and according to Petitioner became law of the case. Clemente v. State of California, 40 Cal.3d 202, 211-212 (1985) (principle or rule necessary to decision on appeal becomes the law of the case and must be adhered to throughout its subsequent progress). Thereupon the Office of the California Attorney General undertook prosecution of the case. (See Doc. No. 25 at 249.)

         Just before the start of trial, defense counsel orally motioned the trial court to limit ongoing contact between Witt and the Kern County District Attorney's Office. (Doc. No. 25 at 249; RT 59-64.) Petitioner notes the trial court deferred ruling pending briefing and never revisited the issue. (Id. citing RT 66.)

         The state supreme court rejected aspects of the claim on direct appeal, stating that:

Defendant speculates that an investigator in the Kern County District Attorney's Office passed confidential information to the deputy attorney general who prosecuted the case, despite an order recusing the Kern County District Attorney's Office from prosecuting the case. Defendant is unable to provide evidence in the record indicating that any such conduct took place. On the contrary, the deputy attorney general who prosecuted the case stated on the record that the former deputy district attorney whose prior contact with defendant necessitated the recusal order never had disclosed confidential information to the investigator, and that neither the former deputy district attorney nor the investigator had disclosed confidential information to the deputy attorney general who prosecuted the case. Defendant counters that the recusal order required the recusal of the entire Kern County District Attorney's Office, and that this order was affirmed by the Court of Appeal. Defendant claims that contrary to the order, the deputy attorney general continued to use the resources of the Kern County District Attorney's Office, including the services of Newport, an investigator who previously had worked for Felice, the deputy district attorney whose contact with defendant necessitated the recusal order.
As respondent points out, however, defendant abandoned this claim at the trial level, never asking the court, which had declined to rule before submission of points and authorities, for a ruling on the motion and never filing the points and authorities requested by the trial court. (See People v. Pinholster (1992) 1 Cal.4th 865, 931 [4 Cal.Rptr.2d 765');">4 Cal.Rptr.2d 765, 824 P.2d 571]; People v. Kaurish (1990) 52 Cal.3d 648, 680 [276 Cal.Rptr. 788');">276 Cal.Rptr. 788, 802 P.2d 278].)

Catlin, 26 Cal.4th at 162.

         Petitioner argues that counsel did not abandon the motion, but rather the trial court effectively denied the motion even though Witt continued to “prosecute this case from, and with the cooperation of, the Kern County District Attorney's Office.” (Doc. No. 25 at 249; Doc. No. 95 at 162.) This, he contends was contrary to and negated the noted Fifth Appellate District opinion, law of the case.

         However, even if the claim was not abandoned at the trial level as Petitioner contends, it nonetheless lacks merit on de novo review.

         The record reflects former defense counsel Felice, who was appointed to represent Petitioner at his 1985 arraignment in municipal court (CT 1344-45) previously and subsequently worked for the Kern County District Attorney's Office which initially prosecuted Petitioner through deputy district attorney Baird who had the assistance of district attorney investigator Newport. (CT 1589-1606; see also Doc. No. 25 at 235, 248 citing CT 1344-1345, 1602-24, 1754-56, 1781-A-1782; 8/23/88 RT 4-28.)

         On August 24, 1988, the trial court denied a defense motion to recuse the Kern County District Attorney's Office, after taking testimony from Felice and Newport. (CT 1587-99; 8/23/88 RT 4-28.) Still, the trial court ordered that Felice was not to supervise or be supervised by (then) prosecuting deputy district attorney Baird or utilize Newport in case investigations. (8/24/88 RT 14-16.) After the Kern County District Attorney informed the trial court certain of these conditions could not be met, the trial court recused the entire District Attorney's Office in September of 1988. (CT 1781-A-1782.) Deputy attorney general Witt then undertook prosecution of the case. (See Doc. No. 25 at 249.)

         Prior to voir dire, counsel moved the trial court to limit contact between Witt and the Kern County District Attorney's Office, allegedly pursuant to the recusal order. The trial court considered the matter, but did not rule, stating that:

[The recusal order was concerned with] whether Mr. Witt is going to learn something that Mr. Felice learned from [Catlin], which would be possibly adverse to Mr. Catlin and so long as the Attorney General is not obtaining that possible information from Mr. Felice, I don't see any problem with him using the facilities there, obtaining the files, investigative reports, but I'll give it some more thought. I'll ask for points and authorities by both sides.

(CT 66-67.) As noted, the motion was not revisited.

         Petitioner has not supported his argument that Witt contravened the recusal order. As noted, the trial court explained recusal was motivated by the need to isolate Baird and Newport from Felice. The Court of Appeal for the Fifth Appellate District in affirming the recusal order in an unpublished November 8, 1989 decision also found the need for isolation was the basis for the recusal. (See SCT Vol. IXB at 3-11.) During the 1988 recusal hearing, Felice and Newport testified that no confidential information had been passed or would be passed. (8/23/88 RT 17.) Witt, prior to trial, confirmed that he had not and would not have any contact with Felice and that Newport had not disclosed any information about Petitioner ...


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