Pensinger v. Chappell, Nos. 12-99006, 13-99000 (Tallman with Bea and Owens) --- In this pre-AEDPA case, the Ninth Circuit affirmed the grant of penalty-phase relief to a California death-row prisoner, holding that the trial judge should have instructed the jury at the eligibility phase that it had to find an independent felonious purpose for a kidnapping before finding a defendant death-eligible for the kidnap-murder special circumstance, Cal. Penal Code § 190.2(a)(17)(B) (2015). This instruction was required under the California Supreme Court's decision in People v. Green, 609 P.2d 468 (Cal. 1980), and failure to give it was error under the Ninth Circuit's decision in Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995). The court also held that the state forfeited a nonretroactivity defense.

The details of this murder involving a child victim are gruesome. On August 4, 1981, the petitioner was out drinking with the parents of the children in this case (a five-year-old boy and an infant girl) around the town of Parker, Arizona. Eventually the boy said that someone had stolen the petitioner's rifle, which had been left with the boy in a truck while the adults were in a bar. The petitioner took the children away; the boy escaped, but the girl's mutilated, partly decomposed body was found about a week later in a dump in San Bernardino County, California.

The petitioner was tried in 1982. At the time, California Supreme Court decisional law required the jury to be instructed that a kidnapping had an independent felonious purpose before it could be used as a finding that made a defendant eligible for the death penalty. Here, the jury was not so instructed, and it found the petitioner eligible for the death penalty on two grounds -- murder in the course of a kidnapping, and torture. The jury then imposed a death sentence. On direct appeal, the California Supreme Court struck the torture-murder special circumstance and upheld the death sentence without reweighing under Clemons v. Mississippi, 494 U.S. 738, 748 (1990). The Ninth Circuit had held that the failure to give this instruction was error in the Williams case, so the district court granted relief from the death sentence. The state appealed.

Before the district court, the state did not raise a nonretroactivity defense with respect to the Williams decision. It did not do so in its answer, nor did it do so when the district court called for supplemental briefing. Its opening brief to the Ninth Circuit mentioned the issue only "in passing." And when the Ninth Circuit panel called for supplemental briefing on the issue, the state conceded that it did not clearly and timely raise the defense. With the defense admittedly unpreserved, the state asked the court to exercise its discretion to consider the defense sua sponte, but the court declined to do so. Granting relief would give the parties the opportunity to argue to the trial court about the propriety of the instruction under the facts of the case. And while that trial would come some 33 (or more) years after the murder, "the problem is one of [the state's] own making." Deeming the state's explanations for failing to raise the nonretroactivity defense earlier "unavailing," the court proceeded to the merits of the claim.

Here, the merits were easy. Green required the jury to find evidence of an "independent felonious purpose" for the kidnapping before the special circumstance applied. Here, there was evidence that there was no such independent purpose -- the petitioner could have kidnapped the children in order to kill them. There was also evidence that he did so in order to "take it upon himself" to find whoever stole his rifle. But because of the special narrowing function that special circumstances perform in California's capital sentencing scheme, the jury had to be instructed on this "independent felonious purpose requirement" in order for the sentencing process to comply with the Eighth Amendment. Thus the trial judge had a sua sponte duty to give the instruction. The California Supreme Court's failure to cure the defect in the sentence (as required by Clemons) meant that it fell to the NInth Circuit to perform a Brecht harmless-error analysis. But there was no harmless error, because of the two possible motives for the kidnapping. Thus the court affirmed the grant of penalty-phase relief.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/02/12-99006.pdf