Opinion
No. C 99-5086 WHA (PR)
November 14, 2003
JUDGMENT
The court having today denied the petition for a writ of habeas corpus, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.
IT IS SO ORDERED.
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submittedSTATEMENT
Juries in the Superior Court of the State of California in and for the County of San Mateo found petitioner competent to stand trial, convicted him of second degree murder of Sangeeta Vaswani and first degree murder of Stephanie Rivera, and rejected his plea of not guilty by reason of insanity. The trial court sentenced him to life imprisonment without the possibility of parole. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California denied review. As grounds for habeas relief he asserts that: (1) the admission of petitioner's confession violated due process because the confession was coerced; (2) jurors' efforts to discover the concealed shackling of petitioner in court constituted juror misconduct in violation of due process; (3) the trial court violated petitioner's right to due process by forcing petitioner to undergo a psychiatric examination by the prosecution's expert in preparation for both the competency and sanity stages, and by allowing the challenged psychiatrist to testify at those proceedings largely on the basis of petitioner's suppression hearing testimony; (4) the evidence presented was insufficient to support the verdict of first degree murder; and (5) the cumulative effect of the errors deprived him of due process.
Petitioner was found guilty of killing his girlfriend, Sangeeta Vaswani, and her roommate, Stephanie Rivera. Ex. G (court of appeal opinion) at 25. Vaswani was found asphyxiated in the bathtub of her apartment. Id at 5, 23. Rivera's body was found in a bedroom with multiple stab wounds. Id. at 4. Vaswani had been seeing another man and petitioner was angry about it; there was evidence that he was obsessive about Vaswani. Id. at 2-3. The prosecution's theory was that petitioner asphyxiated Vaswani, then when Rivera walked in on him, stabbed her to death to eliminate a witness. Id. at 65.
All citations to "ex." not otherwise attributed are to the exhibits lodged with the court by respondent.
Petitioner had a long interview with the police in which he denied having anything to do with the murders, then disappeared when released.Id. at 6-7, 33-34. He had called a Chicago friend, Moro, whom he had met when they were both in the Santa Clara County Jail, and asked if he could visit. Id. at 7-8, 38. Unbeknownst to petitioner, Moro was an informant for Illinois police. Id. After petitioner arrived in the Chicago area, Moro informed Illinois police that petitioner had told him that he had killed a woman in California. Id. They contacted California authorities, and two officers flew to Chicago. Id. at 35-36. They wired Moro, who recorded petitioner's admission that he had killed the two women. Id. at 36-37. Petitioner confessed after he was confronted with the recording.Id. at 38.
The prosecution asked for the death penalty. Id. at 1. A jury determined that petitioner was competent to stand trial. Id. at 23. The trial court denied petitioner's motion to suppress the confession to Moro as involuntary and the confession to the police as fruit of the confession to Moro. Id. at 33. Petitioner pleaded not guilty by reason of insanity. Id. at 25. A different jury than the one which had found petitioner competent to stand trial found him guilty of the second degree murder of Vaswani and the first degree murder of Rivera, and the special circumstance of multiple murders. Id. at 25. In a separate proceeding the jury concluded that petitioner was sane at the time. Id. at 33. In the penalty phase proceeding the jury determined that petitioner should be sentenced to life without parole. Id.
Additional facts relevant to each issue are set out in the discussion below.
DISCUSSION
A. Standard of review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500(9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-EK, 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-EL, 123 S.Ct. at 1041; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
B. Issues Presented
1. Voluntariness of confession
Petitioner contends that his confessions were not voluntary, and thus that admitting them into evidence violated his due process rights.
Involuntary confessions in state criminal cases are inadmissible under the Fourteenth Amendment. Blackburn v. Alabama, 361 U.S. 199, 207 (1960). The voluntariness of a confession is evaluated by reviewing both the police conduct in extracting the statements and the effect of that conduct on the suspect.Miller v. Fenton, 474 U.S. 104, 116 (1985); Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir. 1999). Absent police misconduct causally related to the confession, there is no basis for concluding that a confession was involuntary in violation of the Fourteenth Amendment. Colorado v. Connelly, 479 U.S. 157, 167 (1986).
To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne."United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). But again, a confession is only involuntary if the police use coercive activity to undermine the suspect's ability to exercise his free will. Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir. 1990), cert. denied, 502 U.S. 853 (1991). Personal characteristics of the defendant are therefore irrelevant absent proof of coercion. Id. (citation omitted); see, e.g., United States v. Huynh, 60 F.3d 1386, 1388 (9th Cir. 1995) (cultural background did not make defendant incapable of free and voluntary choice). Encouraging a suspect to tell the truth is not coercion.Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997).
Although voluntariness of a confession is not a factual issue entitled to a presumption of correctness under 28 U.S.C. § 2254(d), a state court's subsidiary factual conclusions are entitled to the presumption of correctness. Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1996) (deferring to state appellate court's conclusion that challenged statement did not constitute threat or promise).
The erroneous admission of a coerced confession is subject to harmless error analysis. Fulminante v. Arizona, 499 U.S. 279, 306-12 (1991). In other words, habeas relief is appropriate only if the coerced confession had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Pope v. Zenon, 69 F.3d 1018, 1025 (9th Cir. 1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Petitioner contends that Moro, acting as a police agent, coerced him into saying that he had killed the women. The factual background as to this issue was set out by the court of appeal:
On August 31 and again on September 1, Moro met with Faulks [petitioner]. The officers listened in on the conversations and recognized Faulks's voice. [Footnote omitted.] During the August 31 conversation, Moro told Faulks that the job he had lined up for Faulks would be fine as long as nobody was looking for him. Moro asked if he had left any fingerprints; Faulks replied: "I take care of business. . . ." Faulks said that he had loved Vaswani, but she had proven to be unfaithful to him. He recounted to Moro that he had met [the man who was dating Vaswani] at a concert that he attended with Vaswani and how he was so angry with Vaswani that he knocked her to the ground when he found that had been with [the other man] the night before.
During the September 1 conversation, Moro said that he would help Faulks, but that he had to tell him the truth. The California police had told Moro that Faulks smothered Vaswani with a pillow and he wanted to know if that was the truth. He was planning to spend $4,000 to help Faulks. He told Faulks "I [sic] not gonna help you if you won't tell me what you do. . . ." Moro said that he believed than someone else killed Vaswani. "[D]id you or not[,] that's all[,] that's what I want to know. . . . [Y]es or no[?]" Faulks replied: "Yes[,] I did it."
Ex. G at 36-37.
First, it should be noted that Moro repeatedly told petitioner to "tell the truth." Encouraging a suspect to tell the truth is not coercion.Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997). Secondly, petitioner's contention is that the coercion inherent in these events is that Moro would withhold help and money if petitioner did not admit to the crimes. But Moro did not threaten not to help petitioner if he denied the murders; rather, he claimed he need to know if petitioner killed the women so he could decide whether it was better to get petitioner a job with his "friends," or to spend the money to get false documents and sprint petitioner out of the country. That is, a particular answer, that petitioner killed them, was not required to obtain help. Petitioner stated in court that his preference had been to stay in United States, so denying the crimes would in fact have resulted in his preferred outcome.
In fact, this is how petitioner phrases this issue in this petition: "Petitioner's Confession Was Coerced When Police Used a Friend of Petitioner as a Secret Agent to Elicit Incriminating Statements in a Non-custodial Setting and the Agent Does [Sic] So by Promising to Help the Petitioner Evade Authorities If Petitioner Tells Him the Truth about His Involvement or Not in the Crime." Petition at 38.
The court concludes there was no coercion. "[C]oercive police activity is a necessary predicate to the finding that a confession is not Voluntary1 within the meaning of the Due Process Clause of the Fourteenth Amendment." Connelly, 479 U.S. at 167.
In any event, Moro did not overbear petitioner's will. Petitioner, who had been convicted of five crimes — rape, kidnaping, robbery, burglary, and false use of a credit card — was not naive about police methods. Even more significant was that petitioner had a choice whether to admit the crimes or not; he could deny them, and work for Moro's friends, his preferred outcome. Faulks had a high school diploma and had completed two years of college. He had worked before, and presumably could do so again if Moro withdrew his support. He had covered his tracks cleverly after the murders, and as will be discussed below, engaged in a quite effective campaign to convince doctors and the court that he was insane. In short, he was not a weak or naive person whose will could easily be overborne. Finally, Moro asked for the truth, not a particular answer. For this alternative reason, the Court concludes that the confession was not involuntary, and that petitioner's rights were not violated.
The state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
2. Shackling
Petitioner contends that the jury committed misconduct, a violation of his due process rights, by attempting to discover the shackling mechanism used in court.
The court of appeal described the facts relevant to this issue:
At trial, Faulks wore a linked chain around his body locked to a cable connected to the back of his chair and looped under the chair to be locked between his legs. He also wore a waist chain that linked to ankle cuffs chained between his legs. The waist chain was concealed by his clothing. From where the jurors sat, they could not usually see his legs or feet, although if they looked closely, they might see a shiny object on his ankle. At times, they might also see the chains coming off the ankle cuffs and approach the midline of Faulks's body. He sat in a heavy chair with extra weights suspended under his seat in a box, which was not visible to the jury except for three inches of a small cable running between the back of the chair and under its side. His hands were unrestrained.
In June 1995, Faulks sought to have his restraints removed. He argued that some parts of the system were visible to jurors and others and that his unnatural, limited movement suggest[ed] that he [was] tied down. Faulks also complained that the shackles severely restricted his ability to appear natural in his chair and to move forward and backward, up and down. He asked that the court remove all chains, cables, locks and ankle cuffs. The trial court conducted a hearing on the motion, hearing reports of numerous jail incidents involving Faulks, some involving violence. It had also witnessed in-court disturbances-spitting up blood on the counsel table, the requirement of restraints [sic], and the refusal to walk to court triggering the need for a wheelchair to bring him to court. It conducted an experiment, removing the ankle cuffs and the connecting chains and determined that this would remove any evidence of shackling from the jury's view. It ordered the removal of the ankle cuffs, but ruled that Faulks would remain in the weighted chair restrained with a waist chain. The court took into account that, since the competency proceedings had ended, Faulks's behavior had been very good.
During deliberations in the penalty phase, one of the jurors approached the bailiff as the other jurors were leaving the courtroom. She stood before Faulks's chair and asked whether O.J. Simpson was "hooked up to a chair" like Faulks was. The bailiff asked her where she got that information. "I'm not asking you anything about this case. . . . [¶] . . . I thought it was general knowledge," she said. The bailiff advised her that he could not discuss anything with her about the case. "I didn't know I wasn't supposed to ask you that question," the juror replied. The bailiff did not believe that the other jurors heard this conversation.
The matter was brought to the trial court's attention. The court conducted an inquiry, asking questions based in part on those that Faulks proposed. Outside the presence of the other jurors, the questioning juror was asked about the incident, which she admitted. She told the trial court that she thought that Faulks was hooked to his chair because another juror told her that. On more than one occasion, the jurors had discussed the fact that Faulks was bound to his chair as they passed to or from the jury room. She knew that these discussions had occurred before the penalty phase, but was not certain whether they had arisen during which of the earlier phases [sic]. She said that her belief that Faulks was restrained had not influenced her decision on any verdicts that had, by then, been returned and would not influence her penalty decision. The judge admonished her not to discuss this matter with anyone. Later, the trial court further questioned the juror. She told the trial court that the discussion was a general one about how Faulks was attached to his chair which in turn was attached to the floor. The juror was curious, but she did not recall discussing it with anyone other than the bailiff. She observed jurors inspect Faulks's chair without moving anything as they were walking through the courtroom. The remaining jurors were questioned and gave the same basic report — that they were curious; that passing comments, made as the jurors were on their way to or from the jury room, were made about Faulks's chair; that these comments probably occurred during the sanity or guilt portion of the trial; and that the fact that certain jurors believed or speculated that Faulks was bound to his chair had not and would not affect any of the jurors's decisions.
Faulks's motion for mistrial on the guilty, sanity and penalty phase of the trial — based on a claim of juror misconduct, founded on evidence of independent investigation and discussion of improper subjects — was denied. The trial court found that much of the jurors' discussion was based on speculation and that nothing in their responses to its questioning suggested any impact on past or future verdicts from the discussion that may have taken place or from what they may have observed. The trial court admonished the jury not to be concerned with whether Faulks was restrained — an admonishment which was strengthened at Faulks's request [footnote omitted] — and reinstructed the jury not to make any independent investigation in this case and not to discuss the case until it is [sic] submitted to them for decision. [Citation omitted.]
Ex. G at 67-70.
The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. Const, amend. VI: see Irvin v. Dowd, 366 U.S. 717. 722 (1961). "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg., 895 F.2d 520, 523-24 (9th Cir. 1990) (internal quotations omitted). However, the Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Id. Due process only means a jury capable and willing to decide the case solely on the evidence before it and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Id. Such determinations may properly be made at a hearing. Id. Jury misconduct that occurs during trial and that can be weighed in the context of other evidence presented generally constitutes trial error subject to harmless-error analysis. Eslaminia v. White, 136 F.3d 1234, 1237 n. 1 (9th Cir. 1998) (jury's consideration of extrinsic evidence analyzed as trial error rather than structural error).
Petitioner has cast this issue as a jury misconduct claim. He does not contend that the shackling itself was unconstitutional. He thus must show that the as a result of the alleged misconduct the jury was not impartial. This he has not done. First, the jurors all denied that they would allow their suspicions that petitioner was shackled to affect their decision. Of course, jurors might sometimes make such assertions out of a sense of duty when not justified, for instance when extrinsic evidence comes to their attention which no one could reliably set aside; but this is not such a case. Secondly, the jury's "investigation" consisted of looking at the chair when they passed by in and out of the courtroom, and speculation about petitioner's demeanor when in his chair; this is not the stuff of which a biased jury is made. There was no unconstitutional misconduct by the jury.
Even if it is assumed there was misconduct, it was harmless. See Eslaminia, 136 F.3d at 1237 n. 1 (applying harmless error analysis to jury misconduct claim). The evidence against petitioner, once the confessions were admitted, was not only strong, but overwhelming. The juror's suspicions that petitioner was shackled could not have affected the outcome.
The Court notes that even if petitioner had presented a claim that the shackling in itself was unconstitutional, such a claim would have no merit. He would have to show that the shackling "`had substantial and injurious effect' on the jury's verdict." Ghent v. Woodford, 279 F.3d 1121, 1132 n. 9 (9th Cir. 2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). This he could not do in view of the overwhelming evidence against him.
3. Dr. Missett's role
Petitioner contends that a prosecution expect, Dr. Missett, (1) should not have been allowed to examine him for purposes of the competency hearing; (2) should not have been allowed to base his competency phase testimony in part on petitioner's testimony at the suppression hearing; and (3) should not have been allowed to examine him for the sanity phase trial and should not have been allowed to testify at that proceeding,
a. Competency examination
California law provides that if the court has doubts about a defendant's competence to stand trial, and defendant does not seek a competency determination, the court must appoint two psychiatrists or psychologists to examine the defendant, one named by the prosecution and one by the defense. Cal. Pen. Code § 1369(a). The court appointed two experts, one named by the prosecution and one by the defense. Both doctors concluded that petitioner was incompetent. The prosecution then demanded a jury trial on the issue of competence, and that the court order petitioner to allow a prosecution expert to examine him. The court granted the motion, and the prosecution's expert, Dr. Missett, examined petitioner and testified at the competency trial that petitioner was malingering. The jury found petitioner competent.
Petitioner's contention in trial court and here is that section 1369(a) of the California Penal Code does not contemplate ordering a defendant to undergo examine by a prosecution expert for purposes of a competency determination. This is purely a state law question, and it is presented in state law terms. This Court cannot grant federal habeas relief for a violation of state law. Estelle v. McGuire. 502 U.S. 62. 67-68 (1991). This claim is therefore without merit.
b. Dr. Missett's reliance on petitioner's suppression hearing testimony
In his examination of petitioner in preparation for the competency trial Dr. Missett used petitioner's testimony at the suppression hearing. He read some questions and petitioner's answers, and asked him how he would answer those questions now or if he wanted to expand upon them. Petitioner was unresponsive. Dr. Missett testified about this at the competency trial, ex. B at 1084-88, and said that such a dramatic change in such a short time was a factor in his conclusion that petitioner was malingering, id at 1095-97. Petitioner contends that allowing references to his testimony at the suppression hearing was contrary to Simmons v. United States, 390 U.S. 377 (1968).
Contrary to petitioner's contention that Simmons barred use of suppression hearing testimony in any part of the "criminal process," the holding of that case was: "We hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Id. at 394 (emphasis added). Obviously, a competency hearing does not go to the issue of guilt. Simmons therefore does not directly control.
Petitioner is, in essence, arguing for an extension of the Simmons rule to competency proceedings. The Court's rationale in Simmons was that it was "intolerable" "in these circumstances" that a defendant would have to choose between (1) asserting his Fourth Amendment right to challenge a seizure in a suppression hearing and (2) preserving his Fifth Amendment right not to incriminate himself, a choice which would be required if there was a risk that testimony at a suppression hearing could be used as evidence of guilt. Id. However, in McGautha v. California, 402 U.S. 183 (1971), the Court stated that although it did not question the result inSimmons. this rationale "Vas open to question." Id. at 213.The Court stated: "The criminal process, like the rest of the legal system, is replete with situations requiring `the making of difficult judgments' as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved."Id. at 212-213 [internal quotation marks and citation omitted].
It is questionable whether a defendant even has a Fifth Amendment right against self-incrimination in a competency hearing, provided the evidence is not permitted in the guilt phase, as it was not permitted here. See Estelle v. Smith, 451 U.S. 454, 465 (1981) (stating that if psychiatrist's findings from competency examination had been restricted to use at the competency hearing, "no Fifth Amendment issue would have arisen.") (dictum). Therefore, compelling defendant to elect between his right to challenge the confessions at the suppression hearing and his alleged right not to testify against himself (by way of use of his suppression hearing testimony) at the competency hearing could not impair the policies behind the Fifth Amendment right to any appreciable extent.
In this case the trial court forbade any use of the suppression hearing testimony in the guilt, insanity or penalty phases, and forbade any reference by Dr. Missett to the suppression testimony as a "confession." Given that a competency hearing does not go to guilt or innocence, that the "tension" analysis in Simmons is of doubtful continuing validity, and that it is questionable whether a defendant at such a hearing even has a Fifth Amendment right against self-incrimination (with the restrictions on use of the testimony imposed here), the state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority,
c. Sanity phase
Under California case law, statements made to psychiatrists or psychologists appointed for purposes of a competency hearing, or the "fruits" of their examination, may not be admitted at the guilt or sanity phase of the trial. People v. Arcega, 32 Cal.3d 504, 520-24 (1982) (approving rule announced in Tarantino v. Superior Court, 48 Cal.App.3d 465, 470 (1975). The court in Tarantino stated that this means that "normally" different psychiatrists or psychologists would have to be used for the competency phrase and the sanity phase. 48 Cal.App.3d at 470. In Arcega the court held that allowing the doctors to testify at a guilt or sanity trial about a defendant's statements made to them in the course of a compelled competency examination violated the defendant's Fifth Amendment rights. 32 Cal.3d at 523-24.
Analytically, this claim has two separate elements: (1) a claim that allowing Dr. Missett to testify violated the prophylactic rule of Arcega and Tarantino that different doctors must normally be used for the competency and guilt or sanity phases; and (2) a claim that allowing the doctor to testify violated petitioner's Fifth Amendment right against self-incrimination.
The decision of the court of appeal that state law was not violated is binding on this Court, Hicks v. Feiock 485 U.S. 624, 629 (1988), and in any event violation of state law is not grounds for federal habeas relief, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). There is no Supreme Court authority holding that the Constitution requires that the same doctor not participate in both the competency phase and the guilt or sanity phases. To the extent petitioner is contending that the rule inArcega was violated, that contention is irrelevant in this court.
As to the Fifth Amendment claim, petitioner made no statements to Dr. Missett at the competency examination regarding the crime. His answers there to Dr. Missett's questions were "off the wall" and unresponsive. There simply was nothing tending to self-incrimination in that examination. Dr. Missett's conclusion in his testimony at the sanity phase that petitioner had been sane at the time of the crime was based mostly on petitioner's actions at that time — his extensive efforts to clean up the crime scene and to sanitize Rivera's car, which he had used, and his nearly-successful effort to escape to Chicago. In any event, because Dr. Missett did not base his sanity phase testimony on his examination of petitioner for the competency phase or any statements made by petitioner in that examination, nor make any reference to that procedure, any contention that Dr. Missett's testimony violated petitioner's right against self-incrimination also is without merit.
For these reasons, the state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.
4. Sufficiency of the evidence of first degree murder
A state prisoner who proves that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt is entitled to federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 324 (1979). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. Id.
Petitioner contends that there was insufficient evidence of premeditation and deliberation to support his conviction for first degree murder of Rivera. Under California law, the decision to kill must be the product of reflection and actual deliberation or forethought. Ex. G at 63. It must be the "result of careful thought and weighing of consideration; as a deliberate judgment or plan, carried on cooly and steadily, especially according to a preconceived design." Id. On the other hand, the required reflection is not measured by duration of time. The judgment to kill may be arrived at quickly; "[p]remeditation means `thought of beforehand' for any length of time, however short." Id. at 64 [citation omitted].
Based on the times involved and the expert testimony, the jury could have inferred that Rivera walked in on petitioner after he had killed Vaswani, giving petitioner a strong motive to kill Rivera. Id. at 65-66. There was expert testimony that Rivera was stabbed in the neck while upright, probably from behind, disabling her. Id. at 66. Later, long enough afterward for the blood from those wounds to have partially dried, she was moved onto her back and stabbed repeatedly in the chest, killing her. Id.
This was sufficient evidence of premeditation and deliberation for a rational jury to have found those elements beyond a reasonable doubt. The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
5. Cumulative error
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003). However, where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). As there were no constitutional errors here, this claim is without merit.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.