Argued and Submitted August 5, 2013—Pasadena, California
Amended January 21, 2014
Appeal from the United States District Court for the Central District of California Josephine Staton Tucker, District Judge, Presiding D.C. Nos. 5:08-cv-01913-JST-SS, 5:10-cv-00014-JST-SS.
Kevin Vienna (argued), Supervising Deputy Attorney General, San Diego, California, for Respondents-Appellants Domingo Uribe, Jr. and Javier Cavazos.
Thaddeus J. Culpepper (argued), Pasadena, California, for Petitioner-Appellee Terry Lee Bell.
Mark R. Drozdowski (argued), Deputy Federal Public Defender, Los Angeles, California, for Petitioner-Appellee Natalie DeMola.
Before: Richard C. Tallman, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.
The panel amended an opinion filed on September 5, 2013, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the full court, and ordered that no further petitions for panel rehearing or rehearing en banc will be entertained.
As in the original opinion, the panel reversed the district court's grant of a 28 U.S.C. § 2254 habeas corpus petition with instructions to deny petitioners' claims for relief and consider their remaining unresolved claims, and retained jurisdiction over future appeals.
Petitioners raised a Sixth Amendment challenge to the trial court's decision to excuse a juror for willful misconduct when the juror violated the court's instructions by conducting independent research that she presented to her fellow jurors during deliberations, and by asking them to rely on her expertise and specialized knowledge as a mental health expert. The panel first held that the presumption, that the California Court of Appeal adjudicated the federal claim on the merits despite not expressly addressing that claim, had not been rebutted. See Johnson v. Williams, 133 S.Ct. 1088 (2013). The panel next held that the California Court of Appeal decision upholding the juror's removal for misconduct was neither contrary to nor an unreasonable application of clearly established federal law.
In the amended opinion, the panel clarified its holding that the sentence did not violate the Eighth Amendment as cruel and unusual as to petitioner DeMola, a juvenile offender, because she was not sentenced to life without possibility of parole pursuant to a mandatory sentencing scheme that did not afford the sentencing judge to consider the specific circumstances of the offender and the offense, and because the record showed that the trial judge did make an individualized sentencing determination under a scheme that affords discretion and leniency. See Miller v. Alabama, 132 S.Ct. 2455 (2012); Cal. Penal Code § 190.5(b).
The opinion filed on September 5, 2013, is amended. The amended opinion is filed concurrently with this order.
With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc filed in appeal number 11-56771.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc in appeal number 11-56771 are DENIED. No further petitions for panel rehearing or petitions for rehearing en banc will be entertained.
The California Attorney General ("state") appeals the district court's grant of habeas relief under 28 U.S.C. § 2254 to California state prisoners Terry Bell and Natalie DeMola ("petitioners"). In granting relief, the district court concluded that the petitioners' Sixth Amendment rights were violated when the trial court removed for willful misconduct, in conformance with California Penal Code § 1089, the only juror advocating for acquittal.
The California Court of Appeal found that the juror was properly removed because she engaged in misconduct by: (1) offering her expert opinion on the petitioners' mental health, and (2) violating the court's instructions by consulting a dictionary in order to obtain a medical definition that she presented to her fellow jurors during deliberations. The district court relied on then controlling Ninth Circuit precedent, since reversed by the Supreme Court, to conduct a de novo review of the petitioners' federal habeas claims.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we reverse and vacate the district court's order granting Bell and DeMola habeas relief. In assessing the habeas petitions filed by Bell and DeMola, the district court should have applied the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We address the merits of the petitioners' claims for relief, based on the Sixth and Eighth Amendments and discussed herein. We remand this case to the district court to deny these claims, and to consider the remaining unresolved claims in the petitioners' 28 U.S.C. § 2254 habeas petitions.
On April 15, 2005, Bell and DeMola were convicted in Riverside County Superior Court of first degree murder, in violation of California Penal Code § 187, with special circumstances. On April 10, 2001, when DeMola was sixteen years old and Bell was seventeen, the pair, joined by a mutual acquaintance, murdered DeMola's mother. The jury concluded that the murder was committed while lying in wait, as defined under California Penal Code § 190.2(a)(15), and was intentional and involved torture, as defined under California Penal Code § 190.2(a)(18). On July 20, 2005, the trial court sentenced Bell and DeMola to life in prison without the possibility of parole.
Bell and DeMola contested the murder charge in a four-week-long jury trial, which commenced on March 3, 2005. At the close of evidence, the jury began several days of deliberations, which were interrupted by accusations of juror misconduct involving Juror No. 7.
On the fourth day of deliberations, Juror No. 12 informed the court, outside of the presence of her fellow jurors, that Juror No. 7 worked in the mental health field and had concluded that Bell and DeMola were suicidal and suffered from clinical depression. After the court admonished Juror No. 12 not to discuss "specifically what the jury has been deliberating, " Juror No. 12 stated that Juror No. 7 had "ma[de] a medical decision . . . [that was] not part of the trial . . . [a]nd she's making this as something that we should all be aware of, and it is swaying her inability, or ability, to make the decision one way or the other." The court heard arguments from the prosecution and defense regarding the ...