William Charles Payton v. Jeanne Woodford, Warden, William Charles Payton v. Jeanne Woodford, Warden

299 F.3d 815 William Charles PAYTON, Petitioner-Appellee, v. Jeanne WOODFORD, Warden, Respondent-Appellant. William Charles Payton, Petitioner-Appellant, v. Jeanne Woodford, Warden, Respondent-Appellee. No. 00-99000. No. 00-99003. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc March 20, 2002. Filed August 1, 2002. COPYRIGHT MATERIAL OMITTED Nancy Palmieri, Deputy Attorney General, Esteban Hernandez, Deputy Attorney General of the State of California, Los Angeles, CA, for respondent-appellant-cross-appellee. Dean R. Gits, Deputy Federal Public Defender for the Central District of California, Las Angeles, CA, Rosalie L. Rakoff, A Professional Corporation Culver City, CA, for petitioner-appellee-cross-appellant. Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. Nos. CV-94-04779-R, CV-94-04779-R. Before SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, TROTT, FERNANDEZ, T.G. NELSON, TASHIMA, W. FLETCHER, PAEZ, BERZON and TALLMAN, Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Tallman. OPINION PAEZ, Circuit Judge. 1 A California jury…

Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Tallman.

OPINION

A California jury convicted Petitioner-Appellee William Charles Payton of the first degree murder and rape of Pamela Montgomery, and the attempted murder of Patricia Pensinger and her son, Blaine Pensinger. The jury imposed the death penalty. Payton appealed both the underlying conviction and the death sentence.

At the penalty phase of a trial in which a death sentence is at stake, a state may not preclude the jury from considering any mitigating circumstance “that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982) (internal quotations and citations omitted). The California death penalty statute channels the jury’s assessment of the appropriate penalty into an eleven-factor test that structures the jury’s weighing and balancing of the aggravating and mitigating circumstances. The first ten factors instruct the trier of fact to evaluate various circumstances specific to the crime and to account for the defendant’s age and prior convictions. The eleventh factor- — factor (k) — functions as a…

concurring in part and dissenting in part, joined by KOZINSKI, TROTT, FERNANDEZ & T.G. NELSON, Circuit Judges:

I respectfully dissent from most of the court’s opinion. In Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990), the Supreme Court upheld against an Eighth Amendment challenge the same CALJIC jury instruction employed in Payton’s penalty trial. I do not believe the result should be any different in this case because it is not reasonably likely that the prosecutor’s incorrect remarks led jurors to understand the instructions as precluding consideration of all of the defendant’s mitigating evidence, i.e., virtually the entire penalty phase case. Moreover, if there was an error, it was surely harmless.

I base my conclusion on the following factors: (1) The jury was properly admonished by the trial judge on the point that “counsel’s arguments are not evidence and must be judged in the context in which they are made” when the defense objected to the prosecutor’s error and moved for a mistrial; (2) the prosecutor later implicitly conceded in his closing argument that the jury could consider the defendant’s claimed religious conversion although he…