                                                      Volume 1 of 2

                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FERNANDO BELMONTES, Jr.,                    
               Petitioner-Appellant,
                                                   No. 01-99018
                 v.
JILL L. BROWN, Warden, for the                      D.C. No.
                                                 CV-89-00736-DFL
California State Prison at San
                                                    OPINION
Quentin,*
              Respondent-Appellee.
                                            
     On Remand from the United States Supreme Court

                        Filed July 15, 2005

  Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and
              Richard A. Paez, Circuit Judges.

                  Opinion by Judge Reinhardt;
           Partial Concurrence and Partial Dissent by
                       Judge O’Scannlain




   *Jill L. Brown is substituted for her predecessor, Jeanne S. Woodford,
as Warden of California State Prison at San Quentin. See Fed. R. App. P.
43(c)(2).

                                 8275
                      BELMONTES v. BROWN                      8281
                            COUNSEL

Eric S. Multhaup, Mill Valley, California; Christopher H.
Wing, Sacramento, California, for the petitioner-appellant.

Mark A. Johnson, Deputy Attorney General, Sacramento,
California, for the respondent-appellee.


                            OPINION

REINHARDT, Circuit Judge:

                       I.   PREAMBLE

   On July 15, 2003, we filed an opinion in this case holding
that there is a reasonable probability that as a result of instruc-
tional error the jury did not consider constitutionally mitigat-
ing evidence at the penalty phase. We remanded to the district
court for the issuance of a writ of habeas corpus vacating the
death sentence. Belmontes v. Woodford, 350 F.3d 861 (9th
Cir. 2003). The warden timely petitioned the Supreme Court
for a writ of certiorari. On March 28, 2005, the Supreme
Court granted the writ, vacated our judgment, and remanded
the case “for further consideration in light of Brown v. Pay-
ton, 544 U.S. ___, 125 S.Ct. 1432, ___ L.Ed.2d ___ (2005).”
Brown v. Belmontes, 125 S.Ct. 1697 (2005) (mem.).

   Upon careful consideration, we conclude that Payton does
not affect our holding in the present case. Notwithstanding the
similarity of the factual and legal issues, Payton was a post-
AEDPA case and was decided under the highly deferential
AEDPA standard, while the case before us is pre-AEDPA and
is determined by the application of the ordinary rules of con-
stitutional interpretation. Under AEDPA, if a state court rea-
sonably determines the facts and correctly identifies the
governing federal standard, a federal court can grant a writ of
8282                  BELMONTES v. BROWN
habeas corpus only if the state court was objectively unrea-
sonable in its application of clearly-established Supreme
Court law. Such is not the case when AEDPA does not apply.
In such circumstance, we simply resolve the legal issue on the
merits, under the ordinary rules. Because we recognize “that
AEDPA wrought substantial changes in habeas law,” Wil-
liams v. Taylor, 529 U.S. 362, 387 n.14 (2000) (plurality
opinion), we must be careful not to confuse AEDPA’s defer-
ential standard of review with the pre-AEDPA standard we
employ in this and in other pre-AEDPA cases. As Williams
points out, if anything about AEDPA is clear, it is that “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Id. at 365. The issue
here is not the AEDPA issue that the Court confronted in Pay-
ton, but whether the state court engaged in an “incorrect”
application of federal law.

   In Payton, the Supreme Court held that the state court was
not objectively unreasonable in concluding that the use of
California’s factor (k) did not unconstitutionally prevent the
jury from considering relevant postcrime mitigating evidence.
Payton did not hold, however, that the use of the challenged
factor was itself constitutional or unconstitutional, either as a
matter of fact or law. Unlike in Payton, here we are required
to determine that very question and our determination must be
made by applying the ordinary pre-AEDPA rules.

   In concluding in our earlier opinion that California’s factor
(k), coupled with the trial judge’s instructions, resulted in a
reasonable probability that the jury did not consider Bel-
montes’ principal mitigating evidence, we reached an inde-
pendent legal judgment as to the constitutionality of the
challenged instruction. In doing so, we were free to, indeed
required to, determine the constitutional question on its mer-
its. Having carefully reviewed Payton, and our previous inde-
pendent determination of the constitutional question at issue,
                          BELMONTES v. BROWN                           8283
we find no reason to change our judgment on the matter. We
reaffirm our previous opinion, and reiterate it below.1

                       II.   INTRODUCTION

   In this pre-AEDPA death penalty case, Petitioner Fernando
Belmontes, Jr., appeals the district court’s denial of his peti-
tion for writ of habeas corpus. Because the jury was not
instructed that it must consider Belmontes’ principal mitiga-
tion evidence, which tended to show that he would adapt well
to prison and would likely become a constructive member of
society if incarcerated for life without possibility of parole,
and because there is a reasonable probability that the instruc-
tional error affected the jury’s decision to impose the death
penalty on Belmontes, we grant the petition with respect to
the penalty phase. We reject, however, those claims that seek
  1
    Of the eight Justices who participated in the consideration of Payton,
four specifically reached the same legal conclusion that we reach here:
California’s factor (k) may cause a jury to fail to consider constitutionally
relevant postcrime mitigating evidence. In addition to the three dissenting
Justices in Payton — Justices Stevens, Souter, and Ginsberg — who
would have found the use of California’s factor (k) unconstitutional even
under the heightened deferential AEDPA standards, Justice Breyer, who
joined the majority opinion, specially concurred to note that had he been
making an independent determination of the constitutional issue on the
merits, he likely would have held the “Payton’s penalty-phase proceedings
violated the Eighth Amendment,” which “[i]n a death penalty case . . .
requires sentencing juries to consider all mitigating evidence.” Payton,
125 S.Ct. at 1442 (Breyer, J., concurring). Two of the other four Justices
in the majority held only that it was not objectively unreasonable for the
state court to have concluded that the jurors most likely believed that the
evidence in mitigation was permitted by California’s factor (k) and that
they considered that evidence in their deliberation, but those Justices,
O’Connor and Kennedy, expressed no view as to how they would have
decided the constitutional question had they not been required to apply
AEDPA’s highly restrictive standard. See Payton, 125 S.Ct. at 1442. Only
two Justices, Scalia and Thomas, stated that regardless of whether they
applied the pre- or post-AEDPA rules, they would have held that limiting
a jury’s discretion to consider mitigating evidence does not constitute a
constitutional violation. See id. (Scalia, J., concurring).
8284                  BELMONTES v. BROWN
relief from the judgment of conviction and the finding of spe-
cial circumstances. Accordingly, we affirm the district court’s
decision in part, reverse in part, and remand with instructions
to issue a writ vacating the death sentence.

III.   FACTUAL AND PROCEDURAL BACKGROUND

A.     The Crime, Its Investigation, and Pretrial Proceedings

   On the morning of Sunday, March 15, 1981, 19-year-old
Steacy McConnell telephoned her parents and stated that she
was afraid because several people, including codefendant
Domingo Vasquez, had threatened her. Several hours later,
McConnell’s parents arrived at her residence in Victor, Cali-
fornia, and found her lying unconscious in a pool of blood.
She died shortly thereafter from cerebral hemorrhaging
caused by fifteen to twenty blows to her head with an iron
bar. Her skull was cracked, and she had defensive injuries on
her hands, arms, and feet. The house was ransacked and her
stereo was missing.

   On the Tuesday preceding the murder, several people,
including Vasquez and another codefendant, Robert “Bobby”
Bolanos, partied at McConnell’s house. Although Bolanos left
the residence early Wednesday morning, the party continued
until Friday, when Vasquez stole a quantity of “black
beauties”— amphetamine pills — from McConnell. Upon dis-
covering the theft, McConnell threw Vasquez and his friends
out of the house. The group subsequently discussed their dis-
like of McConnell.

   Police investigation of the individuals who had been pres-
ent at the party extended to Vasquez, and ultimately to
Bolanos, who drove a distinctive black Chevy. The police rec-
ognized Bolanos’ car as matching the description of the car
that had been seen in McConnell’s driveway at the time of the
murder. The police impounded the car and interrogated
Bolanos. Bolanos eventually admitted that he had been
                     BELMONTES v. BROWN                    8285
involved in the events that led to McConnell’s death; he iden-
tified Vasquez and Petitioner Fernando Belmontes, Jr., who
had not been at the party but who had been visiting him over
the weekend of the murder, as his coadventurers. On the
strength of Bolanos’ statement, the police obtained a warrant
and headed South to Ontario, where they arrested Belmontes
at his brother’s home. Belmontes was nineteen at the time.

   Belmontes, Bolanos, and Vasquez were each charged with
first degree murder and special circumstances. However,
Bolanos soon arranged a deal with the prosecution in which
he agreed to testify against Vasquez and Belmontes in
exchange for a guilty plea to second degree burglary and
immunity on the murder charge. At Vasquez’s preliminary
hearing, Bolanos fingered Belmontes as the main assailant.
After the preliminary hearing, the trial judge dismissed the
special circumstances charge against Vasquez, and he pled
guilty to second degree murder. That left Belmontes, who
alone proceeded to trial.

                     B.   The Guilt Phase

   Bolanos was the principal witness for the state. He testified
that on the morning of Sunday, March 15, he and Belmontes
drove to Vasquez’s residence to hang out. When they arrived,
Vasquez was on the phone with McConnell. When Vasquez
hung up the phone, he informed them that McConnell would
not be home during the latter part of the day. The three were
short of cash, and they agreed to burglarize McConnell’s resi-
dence, steal her stereo, and “clean house.” Vasquez’s wife,
Karrie Lynn, testified that as the men departed through the
kitchen, Belmontes grabbed from the counter an iron dumb-
bell bar, which she used for rolling tortillas.

   Bolanos told the jury that the three men drove to McCon-
nell’s house in Bolanos’ vintage, black car and parked a short
distance from the house. According to Bolanos, Belmontes
stated that he would approach the house alone, on foot, carry-
8286                 BELMONTES v. BROWN
ing the metal bar in case he needed to force entry, so that he
could gather McConnell’s valuables and place them near the
door to facilitate a quick getaway, and that the other two
should wait for about five minutes and then bring the car
around to McConnell’s house.

   Bolanos testified that the events unfolded as follows: Bel-
montes left his wristwatch with him, concealed the bar under
his jacket, and walked to McConell’s residence. Bolanos and
Vasquez waited about five minutes, then drove up and backed
into McConnell’s driveway. Vasquez tried to open the trunk
but could not find the right key. Bolanos got out of the vehicle
to assist Vasquez. He heard repeated knocking or banging
noises coming from within the house. Bolanos unlocked the
trunk and got back inside the car, while Vasquez walked to
the front door to assist Belmontes. Shortly thereafter, Bel-
montes and Vasquez emerged from the back door of the house
carrying stereo components. Belmontes was sprinkled with
blood on his face, pants, and shoes. Vasquez “looked like he
had seen a ghost.” Belmontes stated that he had had to “take
out a witness” because she was home. He explained that when
McConnell heard Vasquez and Bolanos drive up, she looked
away from him and he seized the opportunity to hit her with
the bar approximately fifteen times.

  Lucy Flores, McConnell’s neighbor, testified that on the
morning of the murder she watched Bolanos’ Chevy as it
backed into McConnell’s driveway. She observed a man get
out of the passenger side and try to unlock the trunk. He
appeared to be having difficulty, whereupon the driver got out
of the car and unlocked it. The driver got back in the car,
while the passenger walked towards the front of McConnell’s
house and met a third man. She did not see where the third
man had come from. The two men headed toward the front of
McConnell’s house. A short while later, she saw them exit
McConnell’s house from the back door, carrying stereo equip-
ment, which they loaded in the trunk before getting in the car
and driving away.
                        BELMONTES v. BROWN                        8287
   Bolanos testified that, after leaving McConnell’s house, the
three drove to the nearby city of Galt, where they intended to
fence the stereo. En route, Belmontes wiped blood from the
metal bar and his shoes. Belmontes threw the bar out of the
window as they crossed a bridge over the Mokelumne River.2
They went to the home of Manuel Vasquez, Domingo’s
brother, where Belmontes changed his pants. The three con-
tacted Raul Barron, who met them at the home of Irma
Vasquez, Domingo’s sister, and purchased McConnell’s ste-
reo components from them. Barron later testified that he paid
$100 for the stereo to a man wearing a baseball cap (Bel-
montes), who did most of the talking.

   Teresa Cobarrubio, Bolanos’ girlfriend, testified that
Bolanos gave her fifteen dollars from the proceeds of the sale
of the stereo. Acting scared, he informed her that he, Bel-
montes, and Vasquez had burglarized McConnell’s residence.
The following day, Bolanos and Cobarrubio read a newspaper
account of McConnell’s murder, and Bolanos related further
details of the crime. He told Cobarrubio that he had remained
in the car, and that Belmontes had exited the house with blood
on his clothes and had stated that he “had to take a witness
out.”

   Bolanos testified that on Monday, March 16, Vasquez cal-
led him to advise that he had been questioned by police and
did not want to “take the rap” for the murder. Bolanos and
Belmontes went to Vasquez’s house, where the three con-
ferred. Karrie Lynn Vasquez testified that from the kitchen
she overheard Belmontes say that he entered McConnell’s
house alone and hit her multiple times with the bar before
Vasquez joined him in the house.

   Barbara Murillo, Belmontes’ girlfriend, testified that after
the meeting, Belmontes telephoned her and told her that he
  2
   Bolanos later led police to the location on the river bank from which
the bar was recovered.
8288                 BELMONTES v. BROWN
was “in trouble.” He reported that he had gotten into an argu-
ment with McConnell at her house, become angry and hit her,
and that she fell and “went to sleep,” although he “didn’t
mean for her to go to sleep.”

   Detective Holman, the lead investigator, testified that Bel-
montes furnished three tape-recorded statements shortly after
his arrest. In the first statement, he denied any involvement in
the crime. In the second, he admitted the burglary but denied
hitting McConnell. In the third statement, he admitted hitting
McConnell, but insisted that he only hit her once, and then
only at Vasquez’s direction. He stated that the single blow he
delivered caused McConnell to fall down, whereupon he
dropped the bar and began searching the house for valuables,
leaving Vasquez alone with McConnell. Belmontes contended
that he did not pay attention to Vasquez’s actions during this
period and did not observe how McConnell came to have suf-
fered fifteen to twenty fatal blows to her head. Holman also
testified that a small drop of blood found on the tongue of one
of Belmontes’ shoes tested as “type O”—McConnell’s blood
type.

   Dr. Maduros, the pathologist who performed the autopsy on
McConnell, testified that she died from cerebral hemorrhag-
ing caused by fifteen to twenty blows to the back left portion
of her skull. She had a separate contusion on her right temple,
which was caused by a single blow of lesser force that did not
lacerate the skin. However, this blow alone would not have
caused death and, if it had been the first, it would not likely
have caused unconsciousness. Injuries to McConnell’s arms,
hands, legs, and feet evidenced a struggle. According to Dr.
Maduros, there would have been sounds “like a cracked pot”
associated with the blows that fractured McConnell’s skull,
and blood would have splattered in a manner consistent with
the blood patterns found on the door jambs in her house.

  Belmontes testified in his own defense. He insisted that
Vasquez dealt the fatal blows while he, Belmontes, searched
                     BELMONTES v. BROWN                  8289
the back part of the house for something to take. Belmontes
recounted that he and Bolanos had gone over to Vasquez’s
house, and that when Vasquez mentioned that McConnell
would not be home, they decided to steal her stereo. Although
they expected McConnell to be away, the plan was that Bel-
montes would go to the door in case she turned out to be
home; because of the unhappy denouement of her party a few
days earlier, McConnell would become angry and suspicious
if she saw Vasquez or Bolanos at her door. Although Bel-
montes had met McConnell a few times in the past, she did
not know that he was a friend of Vasquez and Bolanos.

   Belmontes’ version of events was consistent with Bolanos’
up to the point of who struck the blows that killed McConnell.
Belmontes agreed that Vasquez and Bolanos stayed in the car
while he walked to McConnell’s front door. He stated that
Vasquez had given him the metal bar to use to break a win-
dow; but that he concealed it in his sleeve. According to Bel-
montes, he knocked at McConell’s door and, to his surprise,
she answered. As soon as he found out that she was home, he
abandoned his intent to burglarize her residence. He told her
that he was hitchhiking and had stopped by because it was
raining. McConnell invited him in. She noticed a bulge in his
sleeve and asked what it was. He showed her the bar and
explained that he had it because he was hitchhiking. He used
McConnell’s bathroom and then stood by the table and talked
to her while she ironed clothes. McConnell told him that she
was having problems with some people and asked him if he
knew Domingo Vasquez. Belmontes said that he had met him.

   Belmontes’ testimony continued: Five minutes after he
entered the house, Bolanos and Vasquez pulled into the drive-
way. McConnell started walking toward the front door. Bel-
montes followed behind her and was placing the bar back up
his sleeve when Vasquez rapped on the door. Under Bel-
montes version, when Bolanos’ car backed into the driveway,
Vasquez would have had to proceed immediately to the front
8290                 BELMONTES v. BROWN
door; he would not have had time to go to the trunk of the car
to attempt to open it.

   According to Belmontes, after he knocked at the door to
McConnell’s house, Vasquez pushed it open, saw McConnell,
and ordered Belmontes to “hit her.” Belmontes followed
Vasquez’ directive and, using a backhanded sweeping motion,
struck McConnell on the side of her head with the bar. She
fell to the floor. Belmontes dropped the bar, ran to the back
bedroom, broke down the door, searched that room and the
kitchen, and returned to the living room. He did not enter the
master bedroom. Upon returning to the front of the house, he
observed Vasquez standing over McConnell and holding the
metal bar. He did not see Vasquez hit McConnell or hear any
blows landing because he was not paying attention. He could
not explain the presence of defensive bruises and contusions
on McConnell’s hands, arms, and feet.

   The rest of Belmontes’ testimony is, with one significant
exception, consistent with Bolanos’: Belmontes and Vasquez
gathered the stereo components and exited from McConnell’s
back door. They loaded the stereo components into the trunk.
Vasquez got in the back seat, Belmontes rode shotgun, and
Bolanos drove. According to Belmontes, while en route,
Vasquez handed him the steel bar, which had flesh and hair
residue on it, and then Vasquez (not Belmontes) stated that he
had had to take out a witness. Belmontes, still wearing his
gloves, wiped blood off the bar and set it down on the floor-
board. He was uncertain whether there was blood on his pants
when he left McConnell’s house; he said that the blood might
have come off the bar when he placed it on the floorboard. He
denied having wiped any blood off of his shoes and asserted
that Bolanos and Vasquez told him to throw the bar out his
window into the river, and that he complied.

  Belmontes concluded his testimony by stating that the three
drove to Manuel Vasquez’ house, where he changed into a
pair of Manuel’s pants. Manuel contacted Raul Barron, whom
                         BELMONTES v. BROWN                           8291
they then met at Irma Vasquez’ house. Barron bought the ste-
reo for $100. Bolanos, Vasquez and Belmontes divided the
money, bought some beer, and drove to the home of an
acquaintance to purchase narcotics.

   Belmontes’ girlfriend, Barbara Murillo, testified that six
months after the murder, she ran into Cobarrubio at the Grape
Festival. Murillo believed that Belmontes was the murderer.
However, when she asked Cobarrubio for further details about
the crime, Cobarrubio claimed that Belmontes had been “set
up” because he had no backup in the area, whereas Vasquez
had a network of local friends.3

   After three hours of deliberation, the jury convicted Bel-
montes of first degree murder with special circumstances. It
also made special findings that Belmontes was the actual
killer and that he had the specific intent that death occur.

                       C.    The Penalty Phase

   At the penalty phase, the prosecution introduced minimal
aggravating evidence. Detective Holman authenticated two
autopsy photographs depicting McConnell’s wounds. William
Cartwright, manager of a motel in Ontario, California, testi-
fied to an incident in early 1979 in which an individual named
Rudy met Belmontes at a motel and attempted to sell him a
.32 caliber automatic handgun that he had acquired in a bur-
glary. Belmontes reportedly examined the loaded weapon,
cocked the trigger, pointed it at Rudy and stated, “I’ve got it
now. Why buy it?” Rudy left the premises and Belmontes
retained the weapon.
  3
    Cobarrubio testified that she recalled running into Murillo at the Grape
Festival. Murillo had asked her whether she thought Belmontes “might
have been set up.” Cobarrubio replied: “Well, he might have.” Cobarrubio
testified further that in fact she had no information from any source that
Belmontes had been set up but answered as she did because she felt sorry
for Murillo.
8292                    BELMONTES v. BROWN
   Steven Cartwright testified that he had a conversation with
Belmontes in February 1979 in which Belmontes alluded to
the fact that some people were upset with him. As Belmontes
talked, he indicated that he had a gun in his belt by slapping
his side, and he stated that he was not concerned because he
had all the protection he needed. Ron Cutler, a California
Youth Authority (“CYA”) counselor, testified that he once
observed Belmontes swinging a chair as if he were about to
hit another ward, but Cutler was able to intervene before a
fight ensued. On cross examination, he admitted that Bel-
montes was significantly smaller than the other youth.

   Barbara Murillo testified about a domestic violence inci-
dent that occurred when she asked Belmontes to move out of
their shared apartment and to give her his keys so he could not
come back. During the fight that ensued, Murillo, who was
four months pregnant with Belmontes’ second child, grabbed
a “file” for protection and attempted to phone the police, but
Belmontes cut the telephone cord with his knife. Belmontes
pushed her and hit her on the head, at one point causing her
to drop their infant daughter. He tried to choke her, but they
were separated by friends who were present. Murillo fled
through a window, but Belmontes dragged her back to the
vicinity of the apartment. A neighbor eventually summoned
the police, who arrived as Belmontes was leaving the prem-
ises.

   Finally, the prosecution and defense stipulated that Bel-
montes entered a plea of no contest in April 1979 to a charge
of being an accessory after the fact to voluntary manslaughter.
The court refused to allow the prosecutor to introduce evi-
dence that Belmontes had actually murdered the victim, Jerry
Howard.4 Consequently, the jury never heard any details of
the murder or Belmontes’ alleged role in it.
  4
   The prosecutor’s proffer included testimony from an eyewitness who
saw Belmontes shoot Howard, a CYA counselor to whom Belmontes had
confessed that he did so, another individual who saw Howard get into a
car with Belmontes on the evening he was killed, and the police officer
who found the murder weapon at Belmontes’ house.
                     BELMONTES v. BROWN                    8293
   Belmontes’ mitigation presentation was also limited in
scope, focusing on two themes: his family and personal his-
tory and his capacity for rehabilitation and positive institu-
tional adjustment. It was primarily the latter theme that
defense counsel pressed upon the jury.

   Belmontes’ family history was one of poverty and violence.
His maternal grandfather, Michael Salvaggio, testified to his
daughter’s unhappy marriage to Belmontes’ father. Salvaggio
recounted that his daughter was sixteen when she ran away
from home and married Belmontes’ father, who was unem-
ployed, refused to support his family, drank to excess, and
beat her. Salvaggio said that he was “very close” to his grand-
son until Belmontes was about thirteen but after that had little
contact with him. However, Salvaggio continued, when Bel-
montes was sixteen and his grandmother lay dying in the hos-
pital, he visited her every day; he also attended her funeral.

   Carol Belmontes confirmed that her marriage to Bel-
montes’ father was unhappy. Fernando Belmontes, Sr., was a
violent alcoholic who “wouldn’t ever work,” and who beat
her, breaking her arm on one occasion and stabbing her on
another. Belmontes was ten years old when the marriage
broke up. Mrs. Belmontes remarried. That marriage broke up
five years later, when Belmontes was about fifteen, after
which he became difficult to control. Belmontes had not lived
with his mother since he was committed to the CYA two
years before McConnell’s murder. He had a younger brother
and sister, to whom he was “very close.”

   Belmontes again testified on his own behalf. He recounted
that he had a poor relationship with his father, who often
came home drunk and hit his mother. He did not like school
and stopped attending in the ninth grade. He wanted to get a
job so that he could help his mother pay the bills. Although
he described his youth as “pretty hard,” he twice stressed that
he did not want to “use it as a crutch.”
8294                  BELMONTES v. BROWN
   Robert Martinez, a close friend of Belmontes’ since their
early teens, testified that he and Belmontes spent a great deal
of time together, usually working on Martinez’s low-rider car.
Belmontes served as best man at Martinez’s wedding and was
someone he could turn to for advice and support when he
argued with his wife. Martinez also testified that he felt Bel-
montes was not a violent person. However, with defense
counsel’s consent, this testimony was struck following an
objection from the prosecutor, who argued that if this evi-
dence was admitted, the prosecution should be allowed to
impeach Martinez with the evidence regarding the Jerry How-
ard murder.

   More important by far was the second mitigation theme—
that Belmontes could lead a positive, constructive life if con-
fined within an institutional setting. The state agrees that Bel-
montes’ counsel, John Schick, presented “substantial
evidence” in support of this theme in the form of a series of
witnesses who testified to Belmontes’ behavior and achieve-
ments during his prior CYA incarceration and to the likeli-
hood that he would make positive contributions to the welfare
of others if his life was spared. Belmontes himself testified
that he was in the custody of the Youth Authority from early
1979 until November 1980, four months prior to the crime.
While at the CYA, he was employed on the fire crew at the
Pine Grove Camp for one year, during which he worked his
way up from last man to number two, a position of leadership
and responsibility. Belmontes also testified that during his
incarceration he became involved in the M-2 Christian spon-
sorship program. He admitted that he initially entered the M-
2 program as a way to get out of camp, but he explained that
he was touched by the decency of his M-2 family, the Haros,
and so gradually became curious about Christianity and
embraced it.

   Belmontes continued by saying that he was paroled from
the Youth Authority after serving his maximum sentence; that
he stayed at the halfway house in Oakland for two weeks and
                     BELMONTES v. BROWN                    8295
then went to Southern California for a short period, returning
with Murillo to the Lodi area to take a job with the forest ser-
vice; and that he subsequently moved to Lodi in part so that
he could be close to the Haros. However, outside of the insti-
tution, Belmontes said, he had trouble maintaining his reli-
gious commitment and “started going back to [his] old ways,”
in part due to “pressure on the streets.” At the time of trial,
he had not abandoned his religious beliefs but felt that he was
no longer “dedicated one hundred percent” to his religious
commitment. He testified that he would hope to make positive
contributions to society if he were ordered incarcerated,
though he had little specific idea of how he might do so.

   The Reverend Dale Barrett, chaplain at the Youth Authori-
ty’s Pine Grove Facility, testified that he knew Belmontes
from his participation in the M-2 Christian sponsorship pro-
gram, which matched a local church-going family with a
ward, who would be permitted to leave the facility to visit
with the family at specified times each week. Barrett
explained that Belmontes was matched with Beverly and Fred
Haro and participated in the program for about a year. In addi-
tion, Belmontes was baptized during his stay in the CYA.
Only a small percentage of program participants who made a
serious commitment to Christianity were baptized. Barrett felt
that, unlike the many wards who stayed in the program only
to get out of camp and manipulate favors from the sponsoring
families, Belmontes had not “conned” them. Barrett testified
that although he personally believed in the death penalty, he
did not think Belmontes deserved to die because he was a
“salvageable” person with “a lot of extenuating circumstances
in his life.” Barrett was of the view that Belmontes’ involve-
ment in the McConnell murder was attributable to “the enor-
mity of the peer pressure and the kind of sociological
circumstances that were part of his life,” and he thought that
if Belmontes were granted a life sentence, he would make
positive contributions to prison life through his involvement
with the prison ministries.
8296                 BELMONTES v. BROWN
   Don Miller, assistant chaplain at the Youth Authority’s
Preston Facility and the Northern California Director of the
M-2 program, testified that he helped place Belmontes in a
halfway house in Oakland upon his release from the CYA.
Miller stated that, at the time, he felt “a little bit doubtful”
about Belmontes’ ability to lead a productive life outside of
a highly structured environment, like prison. Miller testified
that Belmontes stayed at the halfway house for only two
weeks before moving to the Lodi area to take a job with the
forest service. During those two weeks, however, Belmontes
returned to Preston on a few occasions to speak to wards
about what life was like “on the outside.” Miller described
Belmontes (and his message) as well-received by the CYA
wards, and he believed that if Belmontes were committed to
prison for a life term, he would be good at counseling other
prisoners not to make the same mistakes that he had. Miller
was enthusiastic about working with Belmontes in this capac-
ity and stated that Belmontes “definitely would be used in the
prison system for this kind of activity” because he related well
to other prisoners, especially those who shared his ethnic
background, and because these kinds of programs were “at the
present time the only solution” to the troubling problem of
recidivism among prisoners.

   Finally, several witnesses offered evidence with respect to
Belmontes’ conversion to Christianity, which occurred during
his first CYA incarceration, and his failure to maintain his
religious commitment upon his release. Martinez’s wife Dar-
lene, a born-again Christian, testified that she had known Bel-
montes for six or seven years and considered him a close
friend. Darlene recounted that when Belmontes visited them
after his release from the Youth Authority, he told her that he
was a born-again Christian. He also mentioned his disputa-
tious relationship with his girlfriend, Murillo, and mentioned
that he was planning to move in with her. During the conver-
sation, Belmontes expressed concern that Murillo was not a
Christian, and he worried that he would be unable to maintain
his Christian faith on his own.
                     BELMONTES v. BROWN                    8297
   Beverly and Fred Haro, Belmontes’ M-2 sponsors and
members of Reverend Barrett’s church, testified that Bel-
montes spent Wednesday evenings and weekends with them
for almost a year. They felt they had a good relationship with
Belmontes, who attended church with them. They treated him
like their own son, and he opened up to them and was a good
influence on their own teenage son. They saw him several
times after his release from the CYA. Fred Haro stated that he
had “compassion as a son” for Belmontes and that Belmontes
had been genuine in his commitment to the M-2 program and
his affection for his sponsors. Beverly Haro felt that Barbara
Murillo was a “definite negative factor” in Belmontes’ life.

   At the conclusion of the evidentiary stage, the court permit-
ted Belmontes to address the jury personally during closing
arguments. Belmontes stated that he did not think that his dif-
ficult childhood excused his role in the McConnell murder.
However, he explained that he could not handle the pressures
of life outside of an institution, and he asked the jury to give
him “an opportunity to achieve goals and try to better
[him]self.” Belmontes’ attorney similarly stressed that Bel-
montes could not “make it on the outside.” He argued that
Belmontes had had a hard life but still retained his humanity.
He characterized Belmontes as someone who thrived in a
structured environment—as evidenced by his accomplish-
ments while in the CYA—and asked the jury to spare Bel-
montes’ life on the ground that he would make positive
contributions if allowed to live out his natural life in prison.

   The judge instructed the jury according to the then-standard
model jury instructions, which directed the jury to consider as
mitigating evidence the defendant’s age, criminal history, and
“[a]ny other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.” In
addition, the judge read a portion of a supplemental instruc-
tion requested by the defense, which stated that the jury
should view the statutory factors “merely as examples of
some of the factors” that it could consider, that the jury
8298                  BELMONTES v. BROWN
“should pay careful attention to each of these factors,” and
that “any one of them standing alone” could support a life
sentence. The trial judge refused to read the most important
part of the requested instruction, which stated: “ “[Y]ou
should not limit your consideration of mitigating circum-
stances to these specific factors. You may also consider any
other circumstances . . . as reasons for not imposing the death
sentence.” The jury was not informed that it should consider
mitigating evidence bearing on Belmontes’ probable future
conduct if sentenced to life in prison without the possibility
of parole. Shortly after Belmontes’ trial, the California legis-
lature revised the model jury instructions to make clear that
the jury must consider any aspect of the defendant’s character
or record offered as a basis for a sentence less than death,
“whether or not related to the offense for which he is on trial.”
CALJIC 8.85(k) (6th ed. 1996).

   The jury deliberated for a day and a half before reaching a
verdict. On the first day, after several hours of deliberations,
the jury sent the judge a note asking, “What happens if we
cannot reach a verdict?” and “Can the majority rule on life
imprisonment?” The jury was brought back to the courtroom,
and the judge reread a portion of the jury instructions, empha-
sizing that “all 12 jurors must agree, if you can.” The trial
judge refused to tell the jurors what would happen if they
could not agree.

   The trial judge emphasized that if the jurors “[went] over
the instructions again with one another,” they might find it
easier to reach agreement. The jurors then asked the judge to
clarify the instructions on the weighing of the aggravating and
mitigating factors. One juror asked the trial judge whether the
jury was supposed to take each listed (i.e., statutory) factor,
decide whether it was aggravating or mitigating, and then
“balance the sheet.” Rather than instruct the jurors that it was
their duty to consider and, if appropriate, give effect to, all of
the mitigating evidence presented by the defendant, whether
comprehended by one of the statutory factors or not, the trial
                     BELMONTES v. BROWN                    8299
judge responded simply, “That is right,” even though no statu-
tory factor comprehended the element of rehabilitation.
Shortly thereafter, another juror asked whether it was possible
for Belmontes to receive psychiatric treatment while in
prison. The trial judge responded, “That is something you
cannot consider in making your decision.” Following this col-
loquy, the jury returned a death sentence.

                        D.   Post-Trial

   The California Supreme Court affirmed Belmontes’ convic-
tion and sentence in 1988, People v. Belmontes, 45 Cal. 3d
744 (1988), and the U.S. Supreme Court denied certiorari in
early 1989. Belmontes then filed a petition for writ of habeas
corpus in the United States District Court for the Eastern Dis-
trict of California, which was held in abeyance while Bel-
montes exhausted state remedies.

   Belmontes filed a state habeas petition and received a stay
of execution from the California Supreme Court. The Califor-
nia courts summarily dismissed Belmontes’ petition, refusing
him compulsory process and denying him an evidentiary hear-
ing on any of his claims. The California Supreme Court
finally denied relief in 1992.

   In 1993, proceedings on the federal writ commenced before
a magistrate judge. In 1996, he denied Belmontes’ request for
an evidentiary hearing on certain claims but granted his
motion to expand the record to include depositions, declara-
tions, and reports submitted by the parties. The parties filed
cross motions for summary judgment. In 2000, the district
court withdrew the referral from the magistrate judge and, in
August of that year, denied relief on all claims except six that
had not yet been briefed. The court referred those six claims
to the magistrate judge for a recommendation. In January
2001, the magistrate judge recommended denying the out-
standing claims, and in May 2001, the district court adopted
the magistrate’s findings and recommendations, denied the
8300                  BELMONTES v. BROWN
petition, and entered judgment against Belmontes. The district
court issued a Certificate of Appealability for fifteen constitu-
tional claims. This appeal timely followed.

              IV.    STANDARD OF REVIEW

   Because Belmontes filed his habeas petition prior to
AEDPA’s effective date, we apply pre-AEDPA standards of
review. Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003).
State court factual findings are presumed correct unless one
of eight enumerated exceptions applies. See 28 U.S.C.
§ 2254(d) (1994). The application of law to historical facts is
reviewed de novo. Thompson v. Borg, 74 F.3d 1571, 1573
(9th Cir. 1996).

                V.   GUILT PHASE ISSUES

                A.   Giglio and Napue Claims

   Belmontes alleges that the state deprived him of due pro-
cess by failing to disclose that Bolanos had several misdemea-
nor charges and that the prosecutor personally helped him
achieve favorable dispositions on those charges. In a closely
related claim, he contends that the prosecutor violated due
process by failing to correct Bolanos’ false and misleading
testimony that he had never been “busted” before his arrest
for the McConnell murder.

  1.   Factual Background

  On the Wednesday morning before the murder, Bolanos
drove into a traffic signal on his way home from McConnell’s
house. A police officer witnessed the accident. After flunking
a field sobriety test, Bolanos was taken into custody and
charged with various misdemeanor driving offenses, includ-
ing DUI and hit-and-run.

 One week later, Bolanos was charged with first degree
murder for his role in the McConnell murder. He soon entered
                      BELMONTES v. BROWN                    8301
into an agreement in which he pled guilty to second-degree
burglary in exchange for testifying against Vasquez and Bel-
montes. He was granted immunity for his testimony and his
sentence was left to the court’s discretion. He received no
explicit promises of leniency from the prosecution.

   After Bolanos pled guilty to the burglary, he obtained a
string of unusually favorable dispositions on several traffic
offenses. First, with respect to the DUI/hit-and-run charges,
his attorney appeared in municipal court along with Clark
Sueyres, the district attorney who was prosecuting the case
against Belmontes. On Sueyres’ motion, the charges were dis-
missed in the interest of justice. Next, later that year, Bolanos
was cited for driving an unregistered vehicle and driving with
a suspended license. He was allowed to plead guilty to the
lesser charge of driving without a valid license and assessed
a $100 fine; the court dismissed the unregistered vehicle
charge. The following April, Bolanos was again cited for
driving an unregistered vehicle, driving with a suspended
license, operating an unsafe vehicle, and driving with worn
tires. Again, Sueyres personally asked the municipal court to
dismiss the charges in the interest of justice. Bolanos, once
again, pled guilty to driving without a valid license and paid
a $75 fine. None of these matters was disclosed to the
defense.

   At trial, Bolanos admitted on cross examination that he was
testifying under court order in exchange for a grant of immu-
nity and that he would face a murder charge if he refused to
testify. However, Schick’s efforts to impeach Bolanos were
hampered by the fact that Bolanos continually minimized both
his own culpability and the benefits he received from the
prosecution in exchange for his testimony. For example,
Bolanos told the jury that his motive in testifying was “to tell
the truth,” and he stated that because he “wasn’t even around
when the crime happened,” he did not view the grant of
immunity as a particular favor.
8302                  BELMONTES v. BROWN
   In addition, Bolanos was less than truthful when he testified
about his prior contacts with law enforcement. When Schick
questioned Bolanos about prior inconsistent statements that
Bolanos had made to the police, Bolanos explained them by
saying that he had made mistakes out of nervousness because
it was “the first time I got busted.” In fact, Bolanos had been
“busted” twice before. In addition to the DUI/hit-and-run inci-
dent, Bolanos had previously been arrested for gun possession
by Detective Holman, the same officer who arrested him for
the McConnell murder. The arrest generated formal criminal
charges, and Bolanos was sentenced to thirty days in a juve-
nile facility, of which he served fifteen.

  2.   Giglio Claim

   The prosecution has an affirmative duty to turn over to the
defense all evidence favorable to the accused, including
impeachment evidence. Kyles v. Whitney, 514 U.S. 419, 432
(1995); Giglio v. United States, 405 U.S. 150,154 (1972). The
failure to disclose favorable evidence violates due process
when the evidence is material. United States v. Bagley, 473
U.S. 667, 678 (1985); Singh v. Prunty, 142 F.3d 1157, 1161
(9th Cir. 1998). Evidence is material if there is a reasonable
probability that, had it been disclosed to the defense, the out-
come of the trial would have been different. Bagley, 473 U.S.
at 682. A reasonable probability occurs when the suppression
“undermines confidence in the outcome of the trial.” Kyles,
514 U.S. at 434 (internal quotation marks omitted).

   Belmontes argues that the prosecutor violated due process
by failing to turn over material impeachment evidence con-
sisting of the existence and unusual disposition of Bolanos’
misdemeanor traffic offenses. The state responds that the
prosecutor had no duty to disclose this evidence because the
misdemeanor violations were not mentioned in the plea agree-
ment and were not dismissed as consideration for Bolanos’
testimony against Belmontes. In support of this argument, the
state cites the deposition testimony of both Bolanos and his
                     BELMONTES v. BROWN                    8303
attorney to the effect that they did not perceive the dismissal
of the traffic offenses as related to the immunity deal.

   [1] The state’s argument is without merit. We have held
that when the state relies on the testimony of a criminal infor-
mant, it has an obligation to disclose “all information bearing
on that witness’s credibility,” including “the witness’s crimi-
nal record . . . and any information therein which bears on
credibility.” Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.
1997). We further emphasized the importance of this rule in
Benn v. Lambert, in which we held that “the state cannot sat-
isfy its Brady obligation to disclose exculpatory and impeach-
ment evidence by making some evidence available and
asserting that the rest would be cumulative. Rather, the state
is obligated to disclose all material information casting a
shadow on a government witness’s credibility.” 283 F.3d
1040, 1057-58 (9th Cir. 2002) (internal quotation marks omit-
ted). Here, the fact that the prosecutor personally appeared in
municipal court to argue for favorable dispositions of
Bolanos’ misdemeanor traffic offenses casts a shadow on
Bolanos’ credibility regardless of whether such intervention
was mentioned in the plea agreement or offered as consider-
ation for Bolanos’ testimony. Had defense counsel known
about the existence and disposition of the misdemeanor
offenses, he could have impeached Bolanos by showing that
he had a motive to say what the prosecution wanted to hear
in hopes of obtaining a lighter sentence on his plea to second
degree burglary. Even though Bolanos was not explicitly
promised leniency, the fact that the prosecutor helped Bolanos
obtain dismissals or reduced punishments on his traffic misde-
meanors makes it more likely that he would intercede on
Bolanos’ behalf when it came time for sentencing on the bur-
glary charge. Thus, the evidence was clearly relevant and
admissible for purposes of impeachment, and the district
attorney should have disclosed it.

   [2] Nevertheless, we hold that Belmontes’ Giglio claim
fails because, under the particular facts and circumstances of
8304                 BELMONTES v. BROWN
this case, the undisclosed evidence was not material. This
case presents different circumstances from those in Benn, in
which we held that the prosecutor’s dispensation of similar
favors on behalf of his star witness—including quashing a
traffic ticket, dismissing a burglary charge, and postponing
the filing of an arrest warrant until after Benn’s trial—were
material benefits. Id. In Benn, we held that the failure to dis-
close these benefits necessitated a new trial, even though the
prosecutor disclosed that he had made a deal with the infor-
mant to seek a reduced sentence in exchange for his testimony
against Benn, and defense counsel impeached the informant
on this point. Id.

   Aside from the fact that the undisclosed benefits in Benn
may well have been more substantial than those at issue here,
Benn is distinguishable for three reasons. First, Bolanos was
actually involved in the McConnell murder, whereas the
informant in Benn was a jailhouse snitch. Evidence that a jail-
house snitch received material benefits from the prosecution
is especially important because without that evidence the
informant masquerades as a disinterested observer. See United
States v. Bernal-Obeso, 989 F.2d 331, 333-34 (9th Cir. 2002)
(describing practice of relying on criminal informants as
“fraught with peril”). In this case, however, Bolanos was
cross-examined extensively as to his role in the crime and the
details of his immunity agreement, so the jury could not pos-
sibly have viewed him as disinterested. Second, the impeach-
ment evidence that was disclosed in Benn was relatively
trivial; although the informant received sentencing leniency in
his unrelated case, the leniency saved him only thirty-five
days of jail time. Benn, 283 F.3d at 1057. Accordingly, “the
number and nature of the undisclosed benefits was such that
they would have impeached [the witness] more effectively”
than the benefits that were disclosed. Id. at 1058. By contrast,
in the present case the impeachment evidence that was dis-
closed was substantial: an agreement allowing Bolanos to
plead guilty to second-degree burglary and receive immunity
for the murder in exchange for his testimony. Finally, in Benn
                     BELMONTES v. BROWN                   8305
the prosecutor effectively downplayed the importance of the
impeachment evidence in his closing argument. Id. (quoting
prosecutor’s argument that “[t]he reward he got was that in a
6 to 12 month sentence, he got six months instead of nine
months. Big reward.”). In this case, however, the prosecutor
argued that the jury should view Bolanos’ testimony criti-
cally, and the jury was so instructed. For these reasons, we
conclude that Benn does not control our analysis here.

   [3] Here, the undisclosed benefits were not material
because there is not a reasonable probability that the outcome
of the trial would have been different if defense counsel had
known about them. In making this judgment, we realize that
Belmontes need not pass a sufficiency of the evidence test.
Kyles, 514 U.S. at 434. “However, our fundamental concern
remains whether there exists a reasonable probability that
given disclosure of the evidence of benefits to [the witness],
one or more members of the jury would have viewed [his] tes-
timony in a different light.” Singh, 142 F.3d at 1163. In this
case, Bolanos was impeached with his immunity agreement,
including the fact that the charges filed against him were sub-
stantially lower than the evidence would have warranted. The
withheld evidence would not have added much, if anything.
Moreover, Bolanos’ testimony was corroborated by that of
several other witnesses, including disinterested witnesses like
Lucy Flores and Barbara Murillo, who were not involved in
the crime or related to the codefendants. Belmontes’ testi-
mony to the contrary was uncorroborated and did not hold up
well under cross examination. Had Bolanos’ testimony been
less well-supported or the undisclosed benefits been greater,
or had the prosecutor not urged and the judge not instructed
the jury to view his testimony with suspicion, we might con-
ceivably have reached a different conclusion. Nevertheless,
given the extent of the corroborating evidence, the relative
unimportance of the undisclosed benefits as compared to
those that were disclosed, and the nature of the prosecutor’s
statement, we cannot say that the jury would have viewed
Bolanos’ testimony in a different light had it known that the
8306                  BELMONTES v. BROWN
prosecutor had helped him to quash his misdemeanor traffic
offenses or obtain lighter punishment on them. In short, the
undisclosed benefits do not undermine our confidence in the
verdict. In these circumstances, we hold that the withheld evi-
dence was not material, and the claim must, therefore, be
denied.

  3.   Napue Claim

   Belmontes also argues that the prosecution violated his due
process rights by failing to correct Bolanos’ false assertion
that he had never been “busted” before. The prosecutor has an
independent, constitutional duty to correct testimony he
knows to be false. Napue v. Illinois, 360 U.S. 264, 269-70
(1959); N. Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir.
2001). If there is “any reasonable likelihood that the false tes-
timony could have affected the judgment of the jury,” the
conviction must be set aside. United States v. Agurs, 427 U.S.
97, 103 (1976).

   The state argues that the prosecution had no duty to correct
the record because defense counsel was notified of the drunk-
driving arrest at a pretrial hearing. Whether defense counsel
is aware of the falsity of the statement is beside the point. The
state overlooks the fact that the prosecutor’s duty to correct
false testimony arises, not simply out of a duty of fairness to
the defendant, but out of “the free standing constitutional duty
of the State and its representatives to protect the system
against false testimony.” Bowie, 243 F.3d at 1118. Therefore,
regardless of whether defense counsel should have known that
a state witness testified falsely, “[a] prosecutor’s ‘responsibil-
ity and duty to correct what he knows to be false and elicit the
truth,’ Napue, 360 U.S. at 269-70, 79 S. Ct. 1173, requires
[him] to act when put on notice of the real possibility of false
testimony.” Id.

   The state also contends that the prosecution had no duty in
this case because the word “busted” is ambiguous, and there-
                     BELMONTES v. BROWN                    8307
fore Bolanos may not have testified falsely at all. We do not
find the word “busted” to be ambiguous. See Webster’s New
World Dictionary 189 (3d college ed. 1988) (defining “bust”
as “to arrest”). In this case, the prosecutor knew that Bolanos
had been “busted” twice before: once for DUI/hit-and-run and
once for gun possession. He had an independent duty to cor-
rect the false testimony and elicit the truth.

   If there were any reasonable likelihood that Bolanos’ false
testimony could have affected the judgment of the jury, we
would be compelled to grant the petition with respect to this
claim. Belmontes argues that a reasonable likelihood exists,
pointing to the fact that the “first time I got busted” comment
arose at a crucial part of defense counsel’s cross-examination.
Bolanos used this false statement to explain his prior inconsis-
tent statements on two critical points: the length of time
Vasquez spent in the house and the alleged knocking noise
that Bolanos heard when he got out of the car to open the
trunk. He stated that he was nervous when he made the prior
inconsistent statements to the officer because he had never
been busted before. The testimony that was inconsistent was
important because it tended to incriminate Belmontes and
exculpate Vasquez by suggesting that McConnell was killed
before Vasquez entered the house; it also was not directly cor-
roborated by any other witness. Conceivably, if the jury knew
that Bolanos had lied when trying to explain his prior incon-
sistent statements on these points, it could have concluded
that Bolanos was lying about the timing and the knocking
noise, either to please the prosecution or to protect Vasquez.
The jury then would have been more likely to believe Bel-
montes’ testimony that Vasquez was the actual killer.

   Ultimately, however, we do not believe that Bolanos’ false
testimony regarding the absence of prior arrests could have
affected the judgment of the jury. As we explained, his testi-
mony regarding the events surrounding the murder was in
most respects corroborated by independent witnesses. Fur-
thermore, the most damaging testimony of the trial came from
8308                     BELMONTES v. BROWN
Belmontes himself. On cross-examination, Belmontes con-
ceded that for his version of events to be true, Vasquez would
have had to have come directly from the car to the door with-
out attempting to open the trunk, and there is direct evidence
to the contrary from a disinterested eyewitness. Moreover,
Belmontes refused to say that he had seen or heard Vasquez
hitting McConnell, and he could not explain how Vasquez
would have had enough time to both murder McConnell and
ransack the front bedroom. Finally, Belmontes, but not
Vasquez, had blood sprinkled on his clothes and shoe. On this
record, we hold that there is no reasonable likelihood that
Bolanos’ false testimony that his arrest in connection with the
McConnell murder was “the first time I got busted” would
have affected the judgment of the jury. We therefore deny
relief on this claim.

                       B.   Conflict of Interest

   Belmontes contends that he was deprived of due process
and the effective assistance of counsel due to a conflict of
interest arising from Schick’s multiple prior representations of
Vasquez. See Cuyler v. Sullivan, 446 U.S. 335 (1980). At the
heart of the claim is the allegation that Schick, because of the
conflict of interest, did not offer evidence of Vasquez’s vio-
lent criminal history in support of his defense theory that
Vasquez was the actual killer.5 Belmontes argues that this evi-
dence was relevant and admissible for two purposes: first, to
show that Vasquez was, in fact, the actual killer; and second,
  5
    Belmontes also argues that the trial judge independently violated his
due process rights by failing to inquire adequately into the conflict and
failing to advise Belmontes about the nature and consequences of the con-
flict. We do not address this claim because Belmontes cannot prevail on
it without showing that Schick labored under an actual conflict of interest
that adversely affected his defense, a showing Belmontes cannot make for
the reasons explained hereafter. Mickens v. Taylor, 535 U.S. 162 (2002)
(extending Cuyler burden of proof to situations in which trial judge failed
to inquire into conflict about which he knew or reasonably should have
known).
                        BELMONTES v. BROWN                        8309
to impeach Bolanos’ credibility by showing that his fear of
retaliation by Vasquez caused him to place the blame on Bel-
montes, rather than on the true murderer.

  1.   Factual Background

   During pretrial proceedings, Vasquez’s attorney brought a
motion to recuse Schick as counsel for Belmontes. The
motion was based on the fact that Schick’s law firm had rep-
resented Vasquez in a 1979 murder case; Vasquez’s attorney
feared that Schick had confidential information that he would
use against Vasquez as part of his defense theory that
Vasquez was the actual killer.6 Schick opposed the motion
and filed a declaration in which he stated: (1) the attorney
who represented Vasquez in 1979 had since left the firm; (2)
the case against Vasquez was dismissed prior to trial; (3) he
himself had acquired no confidential communications from
Vasquez; and (4) the case file had been destroyed eight
months earlier. The trial judge held a hearing and, based on
these facts, denied the motion. The judge asked Belmontes if
he wished to retain Schick as his lawyer, knowing that
Schick’s firm had previously represented Vasquez. Belmontes
said that he did.

   In postconviction proceedings, Belmontes’ attorneys
learned that Schick’s connection to Vasquez was, in fact,
much more extensive than he had disclosed to either Bel-
montes or the trial court. Prior to entering private practice,
Schick and the members of his criminal defense firm had
worked at the local public defenders’ office. There, Schick
and the members of his firm represented Vasquez on three
occasions in addition to the 1979 murder charge. In August
  6
   Earlier, Vasquez’s counsel had successfully moved to recuse Schick’s
investigator. This investigator had previously worked on Vasquez’s 1979
murder case, and at the time of Belmontes’ trial he worked part-time in
the public defender’s office, which represented Vasquez in the McConnell
murder.
8310                    BELMONTES v. BROWN
1974, Schick had himself represented Vasquez on a gun pos-
session charge; he had helped Vasquez negotiate a guilty plea.
In November 1974, Patrick Riddle, a partner in Schick’s law
firm, had represented Vasquez on a rape charge.7 In January
1976, Douglas Jacobsen, the third partner in Schick’s firm,
had represented Vasquez in a purse-snatching case that went
to jury trial. Schick did not notify Belmontes or the court of
these incidents of representation even though he remembered
them at the time of the recusal motion.

   In 1994, Schick signed another declaration with respect to
the conflict of interest claim. In that declaration, he averred
that at the time of the recusal motion, he saw no relationship
between any of Vasquez’s prior cases and the McConnell
murder. He asserted that his representation of Belmontes was
not inhibited by his prior representation of Vasquez and that
his loyalty to Belmontes was complete and undivided. Schick
stated that he considered calling Vasquez as a witness and
would have been prepared to cross examine him fully had he
taken the stand. However, he also admitted that he did not
investigate Vasquez’s violent criminal history even though
doing so would have been helpful to Belmontes’ defense.
Schick stated that he did not make a tactical decision not to
pursue this investigation. He explained that his normal proce-
dure is to investigate the criminal record of a potential wit-
ness; however, he did not consider Vasquez a potential
witness until after he had entered a guilty plea.

  Schick testified at his deposition that he knew that he had
a continuing duty of loyalty to Vasquez, but he did not view
Belmontes’ defense as conflicting with that duty in any way.
However, Schick admitted that he knew that the district attor-
ney could revive the 1979 murder charge against Vasquez at
any time (although he also stated that it never crossed his
mind that the prosecution would do so as a result of any evi-
  7
   Schick avers that he was not aware of this case at the time he repre-
sented Belmontes.
                     BELMONTES v. BROWN                   8311
dence Schick presented at Belmontes’ trial). In addition,
Schick recognized that even though Vasquez entered his
guilty plea prior to Belmontes’ trial, Vasquez had an ongoing
liberty interest in being viewed as an aider and abettor in the
McConnell murder, and not the actual killer.

  2.   Discussion

   At the outset, we dispose of the state’s procedural objec-
tions to the claim. The state first contends that the claim is
unexhausted because Belmontes did not present to the Cali-
fornia Supreme Court all of the facts underlying the claim.
This argument fails because “new factual allegations do not
render a claim unexhausted unless they ‘fundamentally alter
the legal claim already considered by the state courts.’ ” Cha-
con v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994) (quoting
Vasquez v. Hillery, 474 U.S. 254, 260 (1986)). Here, although
the additional facts add some evidentiary support to the claim,
they do not “fundamentally alter” it. See Weaver v. Thomp-
son, 197 F.3d 359, 364 (9th Cir. 1999) (holding that jury mis-
conduct claim was properly exhausted when petitioner
presented incidents of improper jury contact that differed in
number, but not in kind, from what was presented to state
courts). The essential factual and legal theories are the same
as those presented to the California courts. Therefore, Bel-
montes adequately exhausted the claim.

  Next, the state argues that the claim is barred by the Teague
nonretroactivity doctrine. See Teague v. Lane, 490 U.S. 1031
(1989). The government bases this argument on the Supreme
Court’s recent statement that, as far as its own precedent is
concerned, the question whether Cuyler extends to cases of
successive representation is still open. Mickens v. Taylor, 535
U.S. 162, ___, 122 S. Ct. 1237, 1246 (2002). However, we
have held that circuit court holdings suffice to create a
“clearly established” rule of law under Teague. Bell v. Hill,
190 F.3d 1089, 1091 (9th Cir. 1999). In this circuit, it was
well-established at the time that Belmontes’ conviction
8312                  BELMONTES v. BROWN
became final that conflicts of constitutional magnitude can
arise from cases of successive representation. See, e.g., Mann-
halt v. Reed, 847 F.2d 576, 579 (1988); United States v.
Wheat, 813 F.2d 1399, 1402 & n. 1 (9th Cir. 1987), aff’d on
other grounds, 486 U.S. 153 (1988). Accordingly, the conflict
claim is not Teague-barred.

   We also hold that Belmontes’ purported waiver of the con-
flict of interest was invalid. “For a waiver to be knowing and
intelligent, the defendant must have been sufficiently
informed of the consequences of his choice.” Lockhart v. Ter-
hune, 250 F.3d 1223, 1232 (9th Cir. 2001) (internal quotation
marks and citations omitted). Here, Schick failed to inform
Belmontes or the court of the extent of his prior relationship
with Vasquez. In addition, neither Schick nor the trial judge
explained to Belmontes that Schick owed a continuing duty of
loyalty to Vasquez, a duty that could potentially conflict with
Belmontes’ defense theory—that Vasquez was McConnell’s
actual killer. Under these circumstances, we conclude that
Belmontes was not sufficiently informed of the consequences
of his choice, and his waiver was therefore invalid. See Lock-
hart, 250 F.3d at 1252-53, citing United States v. Curcio, 680
F.2d 965, 976-77 (8th Cir. 1982) (holding that waiver was
ineffective when the defendant was informed of possible con-
flict due to attorney’s prior representation of codefendant and
told that conflict may arise from prior confidential communi-
cations, but not told that conflict may arise from attorney’s
continued loyalty to codefendant).

   [4] To establish a Sixth Amendment violation based on
conflict of interest, the defendant must show that an actual
conflict of interest adversely affected his lawyer’s perfor-
mance. Cuyler, 446 U.S. at 338; Mannhalt, 847 F.2d at 579.
Generally, it is more difficult to demonstrate an actual conflict
resulting from successive, rather than simultaneous, represen-
tation. Mannhalt, 847 F.2d at 580. Conflicts of interest based
on successive representation may arise if the current and for-
mer cases are substantially related, if the attorney reveals
                      BELMONTES v. BROWN                     8313
privileged communications of the former client, or if the attor-
ney otherwise divides his loyalties. Id. Ultimately, however,
an actual conflict of interest is one “that affected counsel’s
performance—as opposed to a mere theoretical division of
loyalties.” Mickens, 122 S. Ct. at 1243. In other words, the
simple “possibility of conflict is insufficient to impugn a
criminal conviction.” Cuyler, 446 U.S. at 350.

   We must decide whether the potential conflict of interest
engendered by Schick’s prior representation of Vasquez rip-
ened into an actual conflict. We begin by noting that there is
no suggestion that Vasquez’s prior cases were substantially
related to the McConnell murder or that Schick was in posses-
sion of privileged communications from Vasquez. Therefore,
if Belmontes is to demonstrate an actual conflict, he must
show that Schick “divide[d] his loyalties” between Vasquez
and Belmontes. Fitzpatrick v. McCormick, 869 F.2d 1247,
1252 (9th Cir. 1989), citing Mannhalt, 847 F.2d at 580. In
engaging in this inquiry, we look beyond Schick’s protesta-
tions to the contrary to see whether independent evidence in
the record supports the allegation of divided loyalties. United
States v. Shwayder, 312 F.3d 1109, 1119 (9th Cir. 2002)
(“Human self-perception regarding one’s own motives for
particular actions in difficult circumstances is too faulty to be
relied upon, even if the individual reporting is telling the truth
as he perceives it.”); Sanders v. Rawtelle, 21 F.3d 1446, 1452
(9th Cir. 1994) (“The existence of an actual conflict cannot be
governed solely by the perceptions of the attorney; rather, the
court itself must examine the record to discern whether the
attorney’s behavior seems to have been influenced by the sug-
gested conflict.”).

  [5] After a careful examination of the record, we find no
evidence that Schick divided his loyalties between Vasquez
and Belmontes. Indeed, Belmontes’ entire defense was that
Vasquez was the killer. This case is thus distinguishable from
cases like Lockhart, Sanders, and Fitzpatrick, all of which
addressed situations in which defense counsel sabotaged their
8314                  BELMONTES v. BROWN
current clients’ case by refusing to raise the obvious defense
that a former client was actually responsible for the murder.
See Lockhart, 250 F.3d at 1230-31 (where the evidence
showed that the same person had committed both an earlier
murder and the murder for which defendant was on trial,
defendant’s trial counsel refused to present evidence that his
former client had committed the earlier murder); Sanders, 21
F.3d at 1453 (defense counsel successively represented two
brothers who were accused of the same murder; the first
brother confessed his guilt to defense counsel, who advised
him to take the Fifth at his brother’s trial; at the trial, defense
counsel put forth an unconvincing alibi defense rather than
evidence that the first brother had committed the murder);
Fitzpatrick, 869 F.2d at 1251-52 (defense counsel refused to
present defense that a former client actually committed the
murder; because of the prior attorney-client relationship,
defense counsel believed in the former client’s innocence to
the detriment of his current client).

   Belmontes argues nevertheless that an actual conflict of
interest affected Schick’s performance at his trial. According
to Belmontes, even though Schick argued that Vasquez was
the killer, he failed to support this theory with hard evidence.
Belmontes asserts that Schick should have investigated
Vasquez’s lengthy criminal record and presented it as evi-
dence that Vasquez was the actual killer. He also asserts that
Schick should have impeached Bolanos by showing that he
was in fear for his life due to death threats issued by Vasquez
and thus had a powerful motive to falsely shift the blame from
Vasquez to Belmontes. Belmontes argues that the only possi-
ble explanation for these lapses on Schick’s part is that he felt
bound by a continuing duty of loyalty to Vasquez, and that
this duty required him to refrain from presenting evidence that
could have resulted in the revival of the 1979 murder prosecu-
tion or impaired Vasquez’s prospects for an early parole on
his second degree murder conviction in the current case.

   [6] We are of the view, however, that these alleged failings
are too speculative to sustain a conflict of interest claim. This
                         BELMONTES v. BROWN                        8315
is not a case in which Schick failed to present evidence that
went directly to Vasquez’s—and therefore Belmontes’—guilt
or innocence. Rather, Schick sought squarely to place the
blame on Vasquez, and did not overlook any direct evidence
on that point. He simply failed to investigate and present evi-
dence of Vasquez’s prior bad acts, which, if admissible, might
have marginally affected whether a jury would have had a
reasonable doubt as to Belmontes’ guilt. Given the absence of
evidence suggesting that Vasquez was the actual killer and
given the damaging nature of Belmontes’ own conflicting
statements, any counsel might have failed to investigate and
offer evidence regarding Vasquez’s criminal history. In short,
we hold that this failure, standing alone, is not enough to
show that Schick divided his loyalties between Vasquez and
Belmontes. It is not “likely” that a conflict caused Schick to
handle Belmontes’ case as he did. See United States v. Mis-
kinis, 966 F.2d 1263, 1268 (9th Cir. 1992). Thus, Belmontes
has not shown that he was deprived of his Sixth Amendment
rights by an actual conflict of interest.

                    C.    Involuntary Statement

   Belmontes argues that the prosecutor violated his due pro-
cess rights by introducing into evidence his involuntary,
inculpatory statements. However, Belmontes testified in his
deposition that he spoke to the police freely and voluntarily.
There was no due process violation here.

      D.   Counsel’s Failure to Challenge Arrest Warrant

   Belmontes claims that his trial counsel was constitutionally
ineffective for failing to challenge his arrest warrant. He
argues that the warrant in his case was facially insufficient to
support a finding of probable cause because nothing in the
warrant corroborated the allegation that Belmontes himself, as
opposed to Bolanos, was involved in the crime.8
  8
   The warrant reads:
       Detective Elbert Holman, San Joaquin County Sheriff’s Office,
8316                    BELMONTES v. BROWN
  1.   Strickland Claim

   In order to prevail on his ineffectiveness claim, Belmontes
must show that: (1) his trial counsel’s performance fell below
an objective standard of reasonableness; and (2) there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the results of the proceeding would have been differ-
ent. Strickland v. Washington, 466 U.S. 668, 686 (1984). To

   will testify that: he responded to 17281 N. Sunrise St. Victor, CA
   on 3/15/81 in the early afternoon. The house was ransacked.
      Deputy St. Sure will testify he was the first deputy Sheriff to
   arrive at 17281 N. Sunrise. Steacy McConnell was on the floor
   being administered to by medical personnel. Steacy McConnell
   subsequently died.
     Dr. Madieros did the autopsy on Steacy McConnell. The cause
   of death was blunt trauma to the head.
      Bob Bolanos, after being advised of his Miranda rights, waived
   those rights and told Detective the following: That he went to the
   home of Domingo Vasquez, Jr. He was with Fernando Delmontes
   on 3/15/81. While at the Vasquez house, Vasquez called Steacy
   McConnell. Thereafter, the three of them talked about the fact
   that Steacy possessed some expensive property at her residence.
   Fernando Delmontes said he needed money to send to his wife
   in Los Angeles. Delmontes decided to burglarize the McConnell
   residence after Vasquez told them McConnell would not be
   home. Vasquez and Bolanos agreed to go with Delmontes.
   Bolanos drive them to McConnell’s in his car. Upon arriving in
   the vicinity, Delmontes got out, carrying an iron bar he had
   brought with him from Vasquez’s house.
      Delmontes told Bolanos to wait in the car for 30 minutes, then
   to drive to McConnell’s and get him.
      When they drove to McConnell’s, they opened the trunk, and
   Vasquez went into the house. Vasquez carried stereo speakers
   from the house to the car trunk. Delmontes followed Vasquez out
   with the receiver portion of the stereo. Delmontes was splattered
   with blood. Vasquez was not. Delmontes said McConnell was in
   the house, and when Bolanos drove up, he beat her with the iron
   bar. The stereo was later sold, and the proceeds divided.
                      BELMONTES v. BROWN                    8317
satisfy Strickland’s prejudice prong in a Fourth Amendment
context, Belmontes must demonstrate a reasonable probability
that a motion to suppress would have succeeded and that the
suppression of the warrant would have led to a different out-
come at the trial. Kimmelman v. Morrison, 477 U.S. 365, 375
(1986). The reasonableness of counsel’s performance is eval-
uated from counsel’s perspective at the time of the alleged
error. See id. at 384.

   At the time of Belmontes’ trial, the federal Aguilar-Spinelli
test applied to affidavits supporting warrant applications.
Aguilar-Spinelli did not require independent corroboration of
the facts set forth in the affidavit. Rather, under Aguilar-
Spinelli, the affidavit on its face had to provide enough infor-
mation so that a magistrate could determine: (1) that the infor-
mant was reliable (the “veracity” prong); and (2) that his
information was dependable (the “basis of knowledge”
prong). Spinelli v. United States, 393 U.S. 410 (1969); Agui-
lar v. Texas, 378 U.S. 108, 114 (1964); United States v.
Larkin, 510 F.2d 13, 15 (9th Cir. 1974). Under federal law,
the affidavit met both prongs. Because the affidavit stated that
Bolanos acquired his information through first-hand observa-
tion, it satisfied the “basis of knowledge” prong, Aguilar, 378
U.S. at 114, and because it contained a statement against
penal interest, it satisfied the veracity prong. United States v.
Harris, 403 U.S. 573, 583-84 (1971) (holding that, in most
cases, statements against penal interest are inherently reli-
able); but see United States v. Hall, 113 F.3d 157, 159 (9th
Cir. 1994) (declining to apply Harris to accomplice informant
because “once a person believes that the police have sufficient
evidence to convict him, his statement that another person is
more important to his criminal enterprise than he gains little
credibility from its inculpatory aspect”).

   Nor would the claim have had a reasonable probability of
success under California law. According to the California
Supreme Court, the affidavit contained sufficient corrobora-
tion to support a finding of probable cause:
8318                    BELMONTES v. BROWN
       The circumstances of the crime and evidence found
       at the crime scene — as summarized in the affidavit
       — corroborated Bolanos’ statement. . . . [T]rial
       counsel could reasonably have concluded that the
       affidavit contained sufficient corroboration of
       Bolanos’s hearsay statement; that the arrest warrant
       thus issued on probable cause; and that a de novo
       motion to quash the warrant would have proved
       futile.

People v. Belmontes, 45 Cal. 3d 744, 768 (1988). We are
bound by statements of the California Supreme Court as to
California law. See Estelle v. McGuire, 502 U.S. 62, 67-68,
(1991) (“[I]t is not the province of a federal habeas court to
reexamine state court determinations on state law ques-
tions.”). Accordingly, we must conclude that Schick would
not have had a reasonable probability of success in challeng-
ing the arrest warrant. Thus his failure to challenge the war-
rant does not constitute ineffective assistance of counsel.

  2.     Franks Claim

   Belmontes also alleges that material omissions in the affi-
davit caused the magistrate to issue a warrant for which there
was no probable cause. See Franks v. Delaware, 438 U.S.
154, 156 (1978). Under Franks, if a criminal defendant estab-
lishes by a preponderance of the evidence that an officer reck-
lessly omitted material information from the affidavit, and if
the affidavit considered with the omitted evidence is insuffi-
cient to establish probable cause, then the “warrant must be
voided and the fruits of the search excluded to the same extent
as if probable cause was lacking.” Id.

  On appeal, Belmontes did not specify what evidence was
omitted from the warrant, but he did refer to the California
Supreme Court opinion, which described four categories of
evidence: (1) The affiant, a police officer, was familiar with
Vasquez’s violent history but did not know Belmontes; (2)
                      BELMONTES v. BROWN                    8319
Bolanos’ car had been identified at the scene of the crime; (3)
Bolanos offered his statement only after his car was
impounded and his girlfriend had incriminated him; and (4) at
first, Bolanos lied when speaking to the police. Belmontes, 45
Cal. 3d. at 769. Three of these omitted facts cast aspersions
on Bolanos’ credibility because they highlight his strong
motive to shift the blame for McConnell’s death to someone
else. The fourth is plainly of no relevance. As to the three, the
face of the affidavit makes clear that Bolanos was Miran-
dized, which itself indicates that Bolanos was a suspect in the
crime. The omitted details add more color to Belmontes’
claims, but they do not change the basic calculus involved in
determining Bolanos’ reliability. Accordingly, they are not
material, and the Franks claim must be denied.

                       E.   Doyle Claim

   Belmontes asserts that the prosecutor violated his due pro-
cess rights by cross-examining him as to his post-arrest
silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976).
However, the Supreme Court has held that Doyle does not
apply to a defendant who has waived his Miranda rights and
voluntarily given a statement to the police. Anderson v.
Charles, 447 U.S. 404, 408 (1980). Belmontes testified in his
deposition that he understood his Miranda rights, waived
them, and spoke freely and voluntarily to the police. No Doyle
error occurred.

  F.   Unconstitutional Restriction on Cross Examination

   Belmontes contends that the trial judge violated his Sixth
Amendment rights by unconstitutionally restricting his cross
examination of Karrie Lynn Vasquez, Vasquez’s wife. Ms.
Vasquez testified that she saw Belmontes take the iron bar
from the kitchen and heard him admit to killing McConnell.
Defense counsel sought to impeach her testimony by demon-
strating that she was lying in order to increase Vasquez’s
chances at an early parole by emphasizing Belmontes’ greater
8320                 BELMONTES v. BROWN
culpability. This strategy was foiled because the trial judge
refused to allow defense counsel to question Ms. Vasquez as
to her knowledge of the length of Vasquez’s sentence.

   The Confrontation Clause protects a defendant’s right to
cross examine witnesses as to potential bias. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). However, the trial judge
retains considerable latitude to impose reasonable limits on
cross-examination based on harassment, prejudice, confusion
of the issues, and relevance. Id. Any error is subject to harm-
less error review. Id. at 684.

   Despite the fact that the trial judge prevented defense coun-
sel from exploring Ms. Vasquez’s bias with respect to the
length of Vasquez’s sentence, defense counsel cross-
examined her extensively and effectively. Defense counsel
elicited testimony that Ms. Vasquez had known her husband
for eight years, bore his child, stayed with him in spite of his
frequent infidelity, married him while he was in prison for the
McConnell murder, and visited him in jail every weekend.
The jury thus had ample reason to believe that Ms. Vasquez
was biased in favor of her husband. In addition, counsel
forced Ms. Vasquez to admit that, although she had been
questioned extensively during the police investigation, it was
not until the day before Belmontes’ trial that she first claimed
to have heard him admit to the crime. This testimony strongly
suggested that Ms. Vasquez was lying about what she claimed
to have heard. Ms. Vasquez could not have been impeached
much more effectively.

   In light of the extensive and effective cross-examination
that occurred, and the minimal amount of additional force the
excluded material would have added, the error, if any, could
not have had a substantial and injurious effect on the jury’s
verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Accordingly, we deny relief on this claim as well.
                         BELMONTES v. BROWN                8321
                   G.      Evidentiary Errors

   Belmontes argues that his trial was rendered fundamentally
unfair by the introduction of hearsay and double-hearsay
statements supporting Bolanos’ testimony that Belmontes was
the actual killer. However, the California Supreme Court held
that these statements were properly admitted prior consistent
statements. We are bound by the opinion of the California
Supreme Court in these matters of state law. Estelle, 502 U.S.
at 67-68. As the Court has stated, “the Due Process Clause
does not permit the federal courts to engage in a finely tuned
review of the wisdom of state evidentiary rules.” Marshall v.
Lonberger, 459 U.S. 422, 438 n.6 (1983). Here, the state-
ments added little and did not render the trial fundamentally
unfair.

                   H.      Instructional Error

   Belmontes also challenges an instruction directing the jury
not to speculate as to why other individuals involved in the
crime were not on trial along with Belmontes. He claims that
this instruction prevented the jury from considering the
impact of Bolanos’ immunity agreement on his credibility.
We must determine “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process.” Estelle, 502 U.S. at 72 (internal quotation marks
omitted). We conclude that it did not, because the jury was
also instructed that it should view Bolanos’ testimony with
suspicion due to his involvement in the crime. Accordingly,
we deny this claim also.

                    I.     Fair Cross-Section

  Belmontes alleges that he was deprived of a jury comprised
of a fair cross-section of the community because of the sys-
tematic exclusion of minority jurors from the venire. How-
ever, he provides no statistical data in support of his claim.
Belmontes’ claim is thus barred by our decision in Thomas v.
8322                  BELMONTES v. BROWN
Borg, 159 F.3d 1147 (9th Cir. 1998). In that case, the peti-
tioner argued that we should excuse his failure to provide the
necessary statistical evidence because his trial counsel was
constitutionally ineffective for failing to preserve it. Id. at
1150. We held:

    [F]or purposes of our fair cross-section analysis, the
    reason for Thomas’ lack of evidence is immaterial.
    Because Thomas has provided us with insufficient
    statistical evidence to determine whether blacks were
    substantially underrepresented on jury venires or
    panels in Kern County at the time of his trial, his
    Sixth Amendment fair cross-section claim must be
    denied.

Id. at 1150-51. Applying Thomas to the facts of this case, we
must deny the claim.

                      J.   Jury Misconduct

   Belmontes contends that the district court erred in denying
him an evidentiary hearing on his juror misconduct claims. A
habeas petitioner must meet two conditions to be entitled to
a federal evidentiary hearing: He must (1) allege facts which,
if proven, would entitle him to relief, and (2) show that he did
not receive a full and fair hearing in a state court, either at the
time of the trial or in a collateral proceeding. Id. at 1126-27.
A petitioner who meets these conditions must receive a hear-
ing. See, e.g., Williams v. Taylor, 529 U.S. 420 (2000) (hold-
ing that because prisoner diligently pursued claim in state
court, and was denied a hearing, he was entitled to a hearing
in federal court); United States v. Navarro-Garcia, 926 F.2d
818, 822 (9th Cir. 1991) (“Unless the court is able to deter-
mine without a hearing that the allegations are without credi-
bility or that the allegations if true would not warrant a new
trial, an evidentiary hearing must be held.”).

  Belmontes first asserts that the jurors based their decision
on the view that “life without possibility of parole did not
                        BELMONTES v. BROWN                         8323
mean that Belmontes would spend the rest of his life in pris-
on.” Belmontes is not entitled to relief on this claim because
it concerns intrinsic jury processes. “[I]ntrinsic jury processes
will not be examined on appeal and cannot support reversal.”
United States v. Bagnariol, 665 F.2d 877, 887 (9th Cir. 1981).

   Belmontes next alleges that the jurors had improper con-
tacts with members of the victim’s family. He bases this con-
tention on an excerpt from the record in which the trial court
reprimanded one of the jurors for talking to the victim’s father
about motorcycles. After the reprimand, the trial court con-
ducted a hearing and determined that the juror was not biased
as a result of his contact with the victim’s father. Belmontes
does not assert either that the hearing was not full or that it
was not fair. Nor does he assert that he has any newly discov-
ered evidence. Accordingly, he is not entitled to a federal evi-
dentiary hearing on this claim.9

   Third, Belmontes asserts that several jurors prejudged his
guilt and engaged in premature deliberations. However, even
assuming that the jurors did the latter, Belmontes would not
necessarily be entitled to relief. See, e.g., United States v.
Klee, 494 F.2d 394, 396 (9th Cir. 1974) (denying motion for
new trial even though jurors discussed the case during breaks
and expressed premature opinions about the defendant’s
guilt). A petitioner must allege facts which, if proved, would
show that the premature deliberations prejudiced him to the
extent that he did not receive a fair trial. United States v. Hen-
drix, 549 F.2d 1225, 1229 (9th Cir. 1977). Belmontes has not
done so here; indeed, he has not alleged any facts other than
that premature deliberations took place.
  9
   Moreover, the state court’s factual determination is subject to a pre-
sumption of correctness. Patton v. Yount, 467 U.S. 1025, 1037 n.12
(1984); 29 U.S.C. § 2254(d) (1994). To overcome the presumption, Bel-
montes must establish by clear and convincing evidence that the state
court’s factual finding was erroneous. Patton, 467 U.S. at 1037 n.12.
However, he submitted no evidence tending to overcome the presumption,
and the record contains none.
8324                  BELMONTES v. BROWN
   As to the alleged juror prejudgment, in his Amended Peti-
tion for Writ of Habeas Corpus, Belmontes contends that “[a]
sitting juror remarked, ‘Here comes the killer,’ whenever peti-
tioner was brought into court.” While this claim, if true, might
possibly entitle him to relief, see Dyer v. Calderon, 151 F.3d
970, 973 (9th Cir. 1998) (en banc) (“The bias or prejudice of
even a single juror would violate [a criminal defendant’s]
right to a fair trial.”), Belmontes did not include the issue in
his request for an evidentiary hearing or present any facts that
would entitle him to relief. Accordingly, the district court did
not err in failing to afford him a hearing on that claim.

  Because Belmontes has not alleged facts that, if true, would
entitle him to relief, we affirm the district court’s denial of an
evidentiary hearing on his jury misconduct claims.
BELMONTES v. BROWN            8325
                     Volume 2 of 2
8326                     BELMONTES v. BROWN
       VI.     SPECIAL CIRCUMSTANCES ISSUES

             A.   Racial Discrimination in Charging

   Belmontes alleges that the charging decision in his case
violated the Eighth Amendment and the Equal Protection
Clause because it was infected by racial discrimination
against defendants whose victims were white. In support of
his claim, Belmontes relies on an expert report prepared by
Richard Berk, a well-respected professor of sociology and sta-
tistics at the University of California, Los Angeles. Berk ana-
lyzed prosecutors’ charging decisions in 122 death-eligible
homicides committed in San Joaquin County from August
1977 through 1986.10 In order to describe accurately the role
of race and ethnicity in death penalty charging, he coded data
for over 450 variables. After running numerous logistic
regression tests, Berk concluded that the odds of being
charged with special circumstances varied significantly
according to the race of the victim. A defendant who killed a
white person was five times more likely to be charged with
special circumstances than a defendant who killed an African
American and twenty times more likely to be charged than if
the victim were Latino. Predictably, however, the govern-
ment’s experts reviewed Berk’s report and the underlying data
and opined that the data did not reveal a pattern of discrimina-
tory charging in San Joaquin County. For the purposes of this
opinion, we assume the accuracy and statistical validity of the
Berk report.11
  10
      The data set consisted of probation department reports for all death-
eligible homicides charged during the relevant time period, except 70
cases for which the County lacked complete reports, 52 cases in which the
defendants were not bound over for trial on murder charges, and six cases
in which the defendants were female.
   11
      The district court questioned the relevance of the Berk report on the
ground that Berk based his conclusions on “a model that used only four
non-racial factors.” Although the tables printed in the report contained
only four non-racial variables, the report stated that Berk and his team
                         BELMONTES v. BROWN                         8327
   Belmontes’ claim of discriminatory charging is essentially
a selective prosecution claim, and we analyze it under that
rubric. Selective prosecution doctrine, however, poses signifi-
cant hurdles for Belmontes. The government retains broad
discretion as to whom to prosecute. Wayte v. United States,
470 U.S. 598, 607 (1985). Because the decision to prosecute
is based on such factors as the strength of the case, the gov-
ernment’s enforcement priorities, and the case’s relationship
to those priorities, the Supreme Court has stated that such
decisions are “particularly ill-suited to judicial review.” Id. at
607. Therefore, a presumption of regularity supports prosecu-
torial judgments, and “in the absence of clear evidence to the
contrary, courts presume that [prosecutors] have properly dis-
charged their official duties.” United States v. Armstrong, 517
U.S. 463, 464 (1996) (quoting United States v. Chem. Found.,
Inc., 272 U.S. 1, 14-15 (1926)). “So long as the prosecutor
has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.” Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978).

   [7] Yet, there is a line the prosecution may not cross.
Although prosecutorial discretion is broad, it is not unlimited.
United States v. Batchelder, 442 U.S. 114, 125 (1979).
Rather, “a prosecutor’s discretion is ‘subject to constitutional
constraints.’ ” Armstrong, 517 U.S. at 464 (quoting Bat-
chelder, 442 U.S. at 125). The decision to prosecute may not
be based upon an unjustifiable standard such as race, religion,
or other arbitrary classification, including the exercise of pro-
tected statutory and constitutional rights. Armstrong, 517 U.S.

actually considered many other variables in addition to those set forth in
the tables. In his declaration, Berk characterized the small, six-variable
model as “simply a summary” and stated that he considered all the vari-
ables in the data set, which included many non-racial factors. We have no
reason to disbelieve Berk’s sworn statement and can only conclude that
the district court was mistaken.
8328                      BELMONTES v. BROWN
at 464; Wayte, 470 U.S. at 608. Likewise, the decision to
charge the death penalty cannot rest on criteria that offend the
Constitution. McCleskey v. Kemp, 481 U.S. 277, 293 (1987);
Adamson v. Ricketts, 865 F.2d 1011, 1022-23 (9th Cir. 1988)
(en banc), abrogated on other grounds, Walton v. Arizona,
497 U.S. 639 (1990), overruled, Ring v. Arizona, 536 U.S.
584 (2002).

   [8] In order to prevail on a selective prosecution claim, a
defendant must show that the prosecutorial policy both had a
discriminatory effect and was motivated by a discriminatory
purpose. Armstrong, 517 U.S. at 465; see also McCleskey,
481 U.S. at 292 (“[T]o prevail under the Equal Protection
Clause, [a defendant] must prove that the decisionmakers in
his case acted with discriminatory purpose.”). To establish a
discriminatory effect in a race discrimination case, a defen-
dant must prove that similarly situated individuals of a differ-
ent race, or whose victims were of a different race, were not
prosecuted. Armstrong, 567 U.S. at 467.12
   12
      In Armstrong, the Supreme Court stated that “[t]o establish a discrimi-
natory effect in a race case, the claimant must show that similarly situated
individuals of a different race were not prosecuted. 517 U.S. at 465
(emphasis added). Belmontes’ statistics do not meet this showing. Never-
theless, although Belmontes’ claim is based on the race of his victim, not
his own race, we do not read this sentence as barring our review. In
McCleskey, the court examined a statistical study that showed statistical
disparities according to the race of the victim. 481 U.S. at 286-87. In that
case, the State argued that McCleskey did not have standing to raise a dis-
crimination claim based on his victim’s race. Id. at 291 n.8. The Court
concluded that McCleskey did have standing to raise this claim, id., and
it addressed directly McCleskey’s argument that he was “discriminated
against . . . because of the race of his victim.” Id. at 292. Armstrong did
not discuss the issue of the victim’s race at all, nor did the majority opin-
ion even mention McCleskey. That question was simply not before the
Court. In short, we are confident that Armstrong did not intend to overrule
the pertinent portion of McCleskey. Accordingly, we conclude that a
defendant may bring a selective prosecution claim based solely on the race
of his victim, and that to establish a discriminatory effect in a race-of-the-
victim case, he must show that similarly situated individuals whose vic-
tims were of a different race were not prosecuted.
                      BELMONTES v. BROWN                    8329
   [9] We reject the government’s contention that the Supreme
Court rejected similar statistical evidence in McCleskey v.
Kemp, and that Belmontes’ statistics are therefore “insuffi-
cient as a matter of law.” The factual showing made by
McCleskey was materially different from the showing made
in this case. In McCleskey, the Supreme Court reviewed the
claim of a Georgia prisoner who alleged that the Georgia cap-
ital sentencing statute violated the Equal Protection Clause
because it was administered in a racially discriminatory man-
ner. 481 U.S. at 286. In support of his claim, McCleskey
offered a sophisticated statistical study that demonstrated that
Georgia defendants whose victims were white were 4.3 times
as likely to receive a death sentence as those whose victims
were black. Id. The Court denied his claim, holding that
McCleskey’s statewide statistics did not meet his burden of
proving that the imposition of the death penalty in his particu-
lar case was the product of purposeful discrimination. Id. at
293. We have similarly refused to allow petitioners in Califor-
nia and Arizona to submit statistics that demonstrated racial
disparities in the imposition of the death penalty statewide as
evidence of discrimination in an individual case. See Carriger
v. Lewis, 971 F.2d 379, 334 (9th Cir. 1992) (en banc) (Ari-
zona); Harris v. Pulley, 885 F.2d 1354, 1374-75 (9th Cir.
1989) (California). Unlike McCleskey, Carriger, and Harris,
however, Belmontes offered statistics that provided informa-
tion limited to the charging entity—the San Joaquin County
District Attorney’s Office—and its death penalty charging
practices over time. Thus he provided what the statistics in
McCleskey lacked: information specific to the decisionmaker
in his case. We conclude that statistics relating to the charging
entity, such as those presented by Belmontes, are materially
more probative of discrimination in capital charging than
those considered by the Supreme Court in McCleskey. See
United States v. Bass, 122 S. Ct. 2389, 2389 (2002) (approv-
ing of “a showing regarding the record of the decisionmakers
in respondent’s case”). Thus, Belmontes’ proffered statistics
are not barred by McCleskey and may support a prima facie
showing of unlawful charging discrimination.
8330                  BELMONTES v. BROWN
   [10] We next confront the question whether Belmontes’
proffered statistical evidence proves a “discriminatory effect”
under Armstrong. The statistics show that defendants whose
victims were white were charged with special circumstances
30% of the time, whereas similarly situated defendants whose
victims were African American or Latino were charged with
special circumstances only 19% and 6% of the time, respec-
tively. Because Belmontes’ statistics revealed that individuals
whose victims were white were far more likely to be charged
with a capital offense than similarly situated individuals
whose victims were non-white, we conclude that Belmontes
established the requisite discriminatory effect. See id.
(approving of statistical evidence that assesses whether simi-
larly situated individuals were treated differently).

   Under Armstrong, however, a discriminatory effect is not
enough; Belmontes must also show that the decisionmakers in
his case acted with a discriminatory purpose. Armstrong, 517
U.S. at 465. Here, Belmontes must show that the San Joaquin
County District Attorneys Office pursued a death sentence in
his case “at least in part because of” the race of his victim.
Wayte, 470 U.S. at 610 (internal quotation marks omitted).
Because Belmontes offered no non-statistical evidence on this
point, we must decide whether his statistical evidence consti-
tutes a prima facie showing of an intent to discriminate on the
part of San Joaquin County District Attorney’s Office.

   The Supreme Court has not determined whether statistics
relating exclusively to the prosecuting authority are sufficient,
standing alone, to establish a prima facie claim of discrimina-
tory intent in a capital charging case. On the one hand, the
Court “has accepted statistics as proof of intent to discrimi-
nate in certain limited contexts,” McCleskey, 481 U.S. at 293,
and has held that appropriate statistics may be enough to
establish a prima facie case in a number of circumstances,
including challenges to the composition of the jury venire, id.,
Title VII employment discrimination, id. at 294, legislative
redistricting, Hunt v. Cromartie, 526 U.S. 541, 548-49 (1999),
                          BELMONTES v. BROWN                           8331
and contemporaneous challenges to a prosecutor’s acts. See,
e.g., Batson v. Kentucky, 476 U.S. 79 (1986). In addition, the
Court has recently reaffirmed Yick Wo v. Hopkins, 118 U.S.
356 (1886), in which the petitioner, a Chinese laundry owner,
relied entirely on statistics to prove that the City of San Fran-
cisco engaged in purposeful discrimination. See, e.g., Arm-
strong, 517 U.S. at 464-65; McCleskey, 481 U.S. at 293 &
n.12. On the other hand, the Court has held that statistical evi-
dence, standing alone, is not enough to make out a prima facie
case of discrimination with respect to a jury’s verdict. See
McCleskey, 481 U.S. at 294-96 & 295 n.14. Although lan-
guage in McCleskey suggests the “impropriety” of requiring
a prosecutor to explain his charging decision years after it was
made, id. at 296 & n.17, the Court acknowledged that, gener-
ally, when a petitioner makes out a prima facie case of dis-
crimination, a prosecutor must provide an explanation. Id. &
n.18.13

   [11] While we think that Belmontes’ statistics provide a
strong showing of intentional discrimination, we need not
decide whether, in a discriminatory charging case, statistics
standing alone can make out a prima facie case. Assuming
arguendo that they can and that Belmontes has made out a
prima facie case, here the State has provided evidence that is
sufficient to overcome that showing. In his deposition, the
prosecutor stated that when he decided to pursue a death sen-
tence against Belmontes, he had reason to believe that prior
to the McConnell murder Belmontes had shot and killed Jerry
Howard. In short, the prosecutor asserted that he pursued a
death penalty against Belmontes, not because of McConnell’s
  13
     We note that a decision to charge a capital rather than a non-capital
offense is far more significant and important than a decision to challenge
a particular juror. A charging decision is made with great deliberation over
a period of time and is generally the product of a deliberative process
involving more than one person. Moreover, unlike the case of a juror chal-
lenge, there is a full record of the relevant events that ordinarily contains
all of the objective factors upon which the decision-making would have
been based.
8332                  BELMONTES v. BROWN
death alone, but because he believed that Belmontes had actu-
ally committed more than one murder. Moreover, the evi-
dence in the record is sufficient to provide a good faith basis
for such belief. Thus, there appears to be a legitimate, race-
neutral reason for a prosecutor to seek a death sentence in this
particular case, and therefore sufficient evidence to rebut the
inference of discrimination raised by Belmontes’ statistical
study. More important, Belmontes does not challenge the
state’s assertion that the prosecutor’s explanation is sufficient
to rebut his prima facie case. In his brief, he does not contend
that the fact that a defendant is a double murderer is not a
valid reason for seeking the death penalty; nor does he argue
that the statistics show that racial disparity exists with respect
to cases in which the defendant has killed, or is believed to
have killed, more than one victim. Accordingly, we conclude
that, even if Belmontes’ statistics were sufficient to raise a
prima facie case of purposeful discrimination, the State has
successfully rebutted it by offering the prosecutor’s legiti-
mate, race-neutral explanation for his actions. We therefore
deny the racial discrimination in charging claim.

       B.   Arbitrariness and Capriciousness in Charging

   Belmontes also argues, independent of his discrimination
claim, that the charging of special circumstances in his case
was so arbitrary and capricious that it violated the Eighth
Amendment. According to Belmontes, his crime was one of
the least aggravated of death-eligible crimes, yet he was one
of only a very few defendants to actually receive the death
penalty. In contrast, many defendants who committed far
more heinous crimes than he obtained lesser punishments.
According to Belmontes, this disparity shows that in San Joa-
quin County at the time of his trial there was “no meaningful
basis for distinguishing the few cases in which [a death sen-
tence] is imposed from the many cases in which it is not.”
Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., con-
curring). Belmontes argues that because the death penalty
regime under which he was charged, convicted, and sentenced
                      BELMONTES v. BROWN                    8333
is indistinguishable from that struck down in Furman, his sen-
tence must be vacated as unconstitutionally arbitrary and
capricious.

   Belmontes’ claim, however, although styled as one of arbi-
trary death penalty charging, is actually a claim of arbitrary
imposition of the death penalty. He does not argue that the
prosecutor’s decision to charge him with special circum-
stances was arbitrary and capricious. Rather, he contends that
it was arbitrary and capricious to impose the death penalty on
him because other defendants who had committed more hei-
nous crimes than he did not receive the death penalty. The
Supreme Court considered and rejected this claim in
McCleskey. 481 U.S. at 306-12. As we are bound by control-
ling precedent, we must do the same.

            VII.    PENALTY PHASE ISSUES

                   A.   Instructional Error

   Belmontes contends that the trial judge’s instructions to the
jury prevented it from considering nonstatutory mitigating cir-
cumstances relating to the likelihood that he would live a con-
structive life in prison and make positive contributions to
others if granted life without the possibility of parole. Because
we conclude that there is a reasonable probability that as a
result of instructional error the jury did not consider constitu-
tionally relevant mitigating evidence, and because we believe
that the error was not harmless, we grant the petition with
respect to the sentencing phase.

  1.   Factual Background

   At Belmontes’ trial, the judge gave the jury the then-
standard model jury instructions, modified to eliminate four
factors that the prosecution and defense agreed had no rele-
vance to the case. The jury was therefore instructed:
8334                     BELMONTES v. BROWN
       In determining which penalty is to be imposed on the
       defendant you shall consider all of the evidence
       which has been received during any part of the trial
       of this case, except as you may be hereafter
       instructed. You shall consider, take into account, and
       be guided by the following factors, if applicable:

       (a) The circumstances of the crime of which the
       defendant was convicted in the present proceeding
       and the existence of any special circumstances found
       to be true.

       (b) The presence or absence of any criminal activ-
       ity by the defendant which involved the use or
       attempted use of force or violence or the express or
       implied threat to use force or violence.

       (c) The presence or absence of any prior felony
       conviction.

       (d) Whether or not the offense was committed
       while the defendant was under the influence of
       extreme mental or emotional disturbance.

       (e) Whether or not the defendant acted under
       extreme duress or the substantial domination of
       another person.

       (f) The age of the defendant at the time of the
       crime.

       (g) Any other circumstance which extenuates the
       gravity of the crime even though it is not a legal
       excuse for the crime.14
  14
    To remain consistent with the text of the statute and the Supreme
Court’s terminology in Boyde, we will refer to this factor as “factor (k)”
or “unadorned factor (k).”
                     BELMONTES v. BROWN                    8335
   The judge also gave the jury half of a supplemental instruc-
tion requested by the defense. The part that was given read:

    [T]he mitigating circumstances which I have read for
    your consideration are given to you merely as exam-
    ples of some of the factors that you may take into
    account as reasons for deciding not to impose a
    death penalty or a death sentence upon Mr. Bel-
    montes. You should pay careful attention to each of
    these factors. Any one of them standing alone may
    support a decision that death is not the appropriate
    punishment in this case.

The other half of the instruction, which the trial judge refused
to give, stated: “[Y]ou should not limit your consideration of
mitigating circumstances to these specific factors. You may
also consider any other circumstances . . . as reasons for not
imposing the death sentence.”

   After several hours of deliberations, the jury sent the judge
a note asking, “What happens if we cannot reach a verdict?”
and “Can the majority rule on life imprisonment?” The jury
was brought back to the courtroom, and the judge reread a
portion of the jury instructions, emphasizing that “all 12
jurors must agree, if you can.” The jurors asked again what
would happen if they could not agree, but the court refused to
tell them.

   The judge asked the jury: “Do you think if I allow you to
continue to discuss the matter and for you to go over the
instructions again with one another, that the possibility of
making a decision is there?” The jurors agreed that they
needed more time to deliberate. They then asked the follow-
ing series of questions:

    JUROR HERN: The statement about the aggravation
    and mitigation of the circumstances, now, that was
    the listing?
8336                    BELMONTES v. BROWN
       THE COURT: That was the listing, yes, ma’am.

       JUROR HERN: Of those certain factors we were to
       decide one or the other and then balance the sheet?

       THE COURT: That is right. It is a balancing pro-
       cess. Mr. Meyer?

       JUROR MEYER: A specific question, would this be
       an either/or situation, not a one, if you cannot the
       other [sic]?

       THE COURT: No. It is not that.

       JUROR MEYER: It is an either/or situation?

       THE COURT: Exactly. If you can make that either/
       or decision. If you cannot, I will discharge you.

       JUROR HAILSTONE: Could I ask a question? I
       don’t know if it is permissible. Is it possible that he
       could have psychiatric treatment during this time?

       THE COURT: That is something you cannot con-
       sider in making your decision.

  2.     Discussion

   The California death penalty statute has a unique mecha-
nism for guiding the jury’s discretion. Instead of separate sets
of aggravating and mitigating circumstances, the statute fea-
tures an eleven-factor test which focuses the jury’s attention
on the specifics of the crime and the background and charac-
ter of the defendant. Tuilaepa v. California, 512 U.S. 967
(1994); Cal. Penal Code § 190.3. The first ten factors instruct
the jury to evaluate various circumstances of the crime and
the defendant’s age and prior convictions. See Cal. Penal
Code § 190.3. The jury itself decides whether these factors are
                      BELMONTES v. BROWN                    8337
aggravating or mitigating. People v. Benson, 52 Cal. 3d 754,
802 (1990). The eleventh factor — factor (k) — is intended
to function as a catch-all that will enable the jury to consider
any relevant mitigating circumstance that the defendant prof-
fers as a basis for a sentence less than death. The jury is obli-
gated to weigh and balance the aggravating and mitigating
circumstances and must impose the death penalty if it deter-
mines that the circumstances in aggravation outweigh those in
mitigation. See Cal. Penal Code § 190.3.

   [12] In this statutory scheme, the importance of factor (k)
cannot be overstated. The Eighth Amendment requires that a
capital jury consider all relevant mitigating evidence offered
by the defendant and afford it such weight as it deems appro-
priate. Penry v. Johnson, 532 U.S. 782, 797 (2001); see also
Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1984) (“The
sentencer . . . may determine the weight to be given relevant
mitigating evidence. But [it] may not give it no weight by
excluding such evidence from [its] consideration.”); Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (holding that the Eighth
Amendment requires that the sentencer consider “as a miti-
gating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death”) (emphasis
in original). This broad mandate includes the duty to consider
mitigating evidence that relates to a defendant’s probable
future behavior, especially the likelihood that he would not
pose a future danger if spared but incarcerated. Skipper v.
South Carolina, 476 U.S. 1, 4-5 (1986). Factor (k) provides
the only mechanism for allowing the jury to consider a sub-
stantial portion of many defendants’ mitigating evidence—
indeed, all mitigating evidence that does not relate to the cir-
cumstances of the crime or the defendant’s age and criminal
record.

   [13] To pass constitutional muster, the trial judge’s instruc-
tions must convey to the jury that factor (k) compels it to con-
sider all relevant mitigating evidence proffered by the
8338                    BELMONTES v. BROWN
defendant as a basis for a sentence less than death. “[I]t is not
enough simply to allow the defendant to present mitigating
evidence to the sentencer.” Penry v. Lynaugh, 492 U.S. 302,
319 (1989). Rather, the trial judge’s instructions must convey
“that the sentencer may not be precluded from considering,
and may not refuse to consider, any constitutionally relevant
mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269,
276 (1998), citing Penry, 492 U.S. at 317-18; Eddings, 455
U.S. at 113-14; Lockett, 438 U.S. at 604.

   [14] At the time of Belmontes’ trial, factor (k) allowed the
jury to consider “[a]ny other circumstance which extenuates
the gravity of the crime even though it is not a legal excuse
for the crime.” The Supreme Court had occasion to review
this language in Boyde v. California, 494 U.S. 370 (1990). In
Boyde, the defendant had argued that the jury instruction was
unconstitutional because there was a reasonable likelihood
that the jury would construe the instruction as forbidding it
from considering evidence unrelated to the crime—e.g., miti-
gating evidence relating to the defendant’s background and
character. However, the Supreme Court held that because of
the view “long held by society” that a defendant with a disad-
vantaged background or emotional or mental problems may
be “less culpable than defendants who have no such excuse,”
the jury was reasonably likely to have understood that the
defendant’s evidence of “his impoverished and deprived
childhood, his inadequacies as a school student, and his
strength of character in the face of these obstacles” could have
“extenuate[d] the gravity of the crime even though it [wa]s
not a legal excuse for the crime.” Id. at 381-82 & n.5. The
Court held that, because the trial judge instructed the jury that
it “shall consider all of the evidence which has been received
during any part of the trial of this case,” there was no reason-
able likelihood that the jury believed that factor (k) prevented
it from considering the background and character evidence
introduced by Boyde and its bearing on Boyde’s commission
of the crime. Id. at 383 (emphasis in original).15 In other
  15
    The Court also defined “extenuates” to mean “lessens the seriousness
of a crime as by giving an excuse.” Id. at 381.
                          BELMONTES v. BROWN                             8339
words, the Supreme Court held that the unadorned factor (k),
at least when accompanied by an appropriate clarifying
instruction, was constitutional as applied to mitigating evi-
dence relating to the defendant’s psychological make-up and
history, which practically, if not legally, bore upon his com-
mission of the crime and was offered for the purpose of
reducing his culpability for the offense.

   The same type of evidence, however, can serve an alterna-
tive forward-looking purpose, mitigating in a manner wholly
unrelated to a petitioner’s culpability for the crime he com-
mitted. This alternative purpose has nothing to do with per-
suading the jury that the defendant is less culpable with
respect to the crime because of some aspect of his family
background, personal history, character, or mental capacity.
Rather, as defined by the Supreme Court in Skipper v. South
Carolina, the jury must “consider[ ] a defendant’s past con-
duct as indicative of his probable future behavior” and
“draw[ ] favorable inferences” about a defendant’s “probable
future conduct if sentenced to life in prison.” 476 U.S. at 4-
5(emphasis added).16 The Court characterized this kind of mit-
igation as “an inevitable and not undesirable element of crimi-
  16
     In attempting to extend Boyde to issues of future conduct, the dissent
errs by focusing on the temporal nature of the evidence rather than the
purpose for which it is introduced. In the instant case, the operative dis-
tinction is not between categories of “pre-crime” and “post-crime” evi-
dence in the sense of when the acts that constitute the evidence occurred,
but rather between a jury’s use of background and character evidence to
mitigate culpability for the crime, as opposed to the use of the same type
of evidence to draw favorable inferences about petitioner’s probable future
conduct. This latter use of the evidence can, as Skipper holds, serve as a
wholly separate and independent basis for a sentence less than death.
Thus, the central question is not whether the jury “was able to consider
and give effect to all of Belmontes’ mitigating evidence,” post at 8355
(emphasis added), but rather what mitigating effect the jury understood to
be permissible under the instruction as stated. Skipper requires that the
jury understand that evidence must be given mitigating effect whether it
bears on petitioner’s culpability for the crime or instead relates to petition-
er’s future potential for constructive conduct.
8340                     BELMONTES v. BROWN
nal sentencing” and stated that, even though these kinds of
inferences “would not relate specifically to petitioner’s culpa-
bility for the crime he committed, there is no question but that
such inferences would be mitigating in the sense that they
might serve as a basis for a sentence less than death.” Id. at
4-5 (emphasis added) (citations and internal quotation marks
omitted). Accordingly, the Court held that “[u]nder Eddings,
such evidence may not be excluded from the sentencer’s con-
sideration.” Id. at 5. The Court’s opinion in Boyde did not
address whether a reasonable jury would have interpreted the
unadorned factor (k) instruction to include the use of this
same type of evidence for a forward-looking purpose which
serves to mitigate without ameliorating the crime. Boyde, 494
U.S. at 382 n.5 (distinguishing Boyde from Skipper on the
ground that Boyde’s mitigation evidence “was introduced not
to demonstrate that he was a ‘model prisoner’ like Skipper
and therefore unlikely to present a risk of future dangerous-
ness but . . . as part of petitioner’s overall strategy to portray
himself as less culpable than other defendants due to his dis-
advantaged background and his character strengths in the face
of those difficulties.”).

   Belmontes contends that his Eighth and Fourteenth Amend-
ment rights were violated because the trial judge’s instruc-
tions failed to advise the jury to consider the portion of his
mitigating evidence that tended to show that he would adapt
well to prison and would become a constructive member of
society if granted a life sentence. We review this claim of
instructional error under the approach set forth by the
Supreme Court in Boyde, which directs us to determine
whether there is a reasonable likelihood that the jury under-
stood the instruction in a manner that resulted in its failure to
consider constitutionally relevant evidence. 494 U.S. at 380.
Although Belmontes’ briefs emphasize the trial judge’s mid-
deliberation colloquy with Juror Hern,17 the Court has held
  17
    We reject the government’s argument that the mid-deliberation
exchange does not count as a jury instruction because it was “rather infor-
                          BELMONTES v. BROWN                           8341
that we must examine claims of instructional error in light of
the record as a whole. Id. at 377. Accordingly, in assessing
Belmontes’ claim of instructional error, we consider the entire
mid-deliberation colloquy as well as the original jury instruc-
tions.

   [15] We begin with the original instructions. As stated
above, Belmontes’ jury was instructed to consider and take
into account “[a]ny other circumstance which extenuates the
gravity of the crime even though it is not a legal excuse for
the crime.” Cal. Penal Code § 190.3.18 Most naturally read,
this instruction allows the jury to consider evidence that bears
upon the commission of the crime by the defendant and
excuses or mitigates his culpability for the offense. We now
know that such evidence includes background and character,
both of which tend to explain why the defendant committed
the crime. By its plain language, however, the instruction does
not encompass events or considerations that are unrelated to
the defendant’s culpability. In particular, the instruction does
not apply to those forward-looking considerations encom-

mal” and occurred after the formal charge. See Shafer v. South Carolina,
121 S. Ct. 1263, 1274 (2001) (labeling the trial judge’s answer to the
jury’s mid-deliberation question an “instruction” and criticizing it because
it “did nothing to ensure that the jury was not misled”); Bollenbach v.
United States, 326 U.S. 607 (1946) (reversing and remanding because a
“supplemental instruction” from the trial court following a question by the
jury was “simply wrong”); McDowell v. Calderon, 130 F.3d 833, 836 (9th
Cir. 1997) (en banc), overruled in part on other grounds, Weeks v. Ange-
lone, 528 U.S. 225 (2000) (explaining that the trial judge’s duty to instruct
the jury adequately “continues until a verdict is reached and returned. As
they work towards a verdict, the jurors must stay in the channel charted
for them by state law. To this end, they may need ongoing guidance.”).
   18
      The California legislature has since reformulated the instruction to
direct the jury to consider “any sympathetic or other aspect of the defen-
dant’s character or record [that the defendant offers] as a basis for a sen-
tence less than death, whether or not related to the offense for which he
is on trial.” CALJIC 8.85(k) (6th ed. 1996). See also People v. Easley, 34
Cal. 3d 858 (1983) (recognizing that unadorned factor (k) had significant
potential for jury confusion.).
8342                  BELMONTES v. BROWN
passed by the Supreme Court’s decision in Skipper: evidence
that allows the jury to evaluate the defendant’s probable
future conduct if incarcerated for life without the possibility
of parole—specifically, evidence that would tend to prove
that Belmontes would likely live a constructive life if perma-
nently confined within a structured prison environment. These
important sentencing considerations are simply not in any
respect “circumstance[s] that extenuate[ ] the gravity of the
crime.” See Skipper, 476 U.S. at 4 (stating that lack of future
dangerousness does “not relate specifically to petitioner’s cul-
pability for the crime he committed”); see also Boyde, 494
U.S. at 382 n.5. Moreover, unlike in Boyde, “society” has not
had a “long held view” that a defendant’s likely future con-
duct can serve to mitigate or excuse his commission of a seri-
ous crime. Rather, the doctrine is a legal concept peculiar to
capital punishment cases. Thus, in the absence of a clear
instruction on point, jurors are not likely to be aware in deter-
mining the appropriate punishment in such cases that the
defendant’s potential for a positive adjustment to life in prison
constitutes a proper mitigating factor.

   [16] In the current case, the most important part of Bel-
montes’ mitigation presentation was that the jury should spare
his life because he had the potential, if confined within a
prison setting, to contribute positively to prison life. Although
the record made before the jury included a substantial amount
of evidence about his difficult childhood, in his own testi-
mony he repeatedly stated that he did not want to use his
rough childhood “as a crutch” or an excuse. Thus, ultimately
the more significant evidence related to his conduct during the
period of his prior CYA incarceration and to his ability to
conform his behavior to societal norms should he be confined
within a structured prison environment. Belmontes’ counsel
argued to the jury that the evidence demonstrated that if
granted life without parole, he would adapt well to prison life,
would make a positive contribution to the welfare of others,
and would not pose a future danger to the guards or the other
inmates.
                      BELMONTES v. BROWN                      8343
   [17] Unlike the background and character evidence in
Boyde that tended to mitigate the offense, Belmontes’ mitiga-
tion evidence was simply not covered by any natural reading
of the words of the unadorned factor (k) instruction. To the
contrary, that instruction, read most naturally, suggested to
the reasonable juror that Belmontes’ evidence tending to show
his probable future good conduct should be excluded from
consideration, and thus that such evidence was governed by
the earlier instruction that the jury “consider all of the evi-
dence . . . except as you may be hereafter instructed.” At the
least, the unadorned factor (k) instruction is ambiguous with
respect to Skipper’s requirement that the jury be permitted to
consider and give effect to evidence bearing on a defendant’s
probable future good conduct when it decides whether to
impose the death penalty, see 476 U.S. at 5, and thus with
respect to the jury’s right to consider Belmontes’ most impor-
tant mitigating evidence.

   [18] The court’s supplemental instructions only exacer-
bated this problem. Belmontes’ counsel had requested instruc-
tions that would have expressly instructed the jury that it
“should not limit [its] consideration of mitigating circum-
stances to these specific factors,” i.e., the factors listed in the
original instruction. However, although the trial judge gave
part of the instruction requested by defense counsel, he
refused to give the most critical portion. Instead, the trial
judge gave a set of contradictory instructions that failed to
inform the jury that it could consider the portion of Bel-
montes’ mitigating evidence bearing on his probable future
conduct. The trial judge started out on the right track by
instructing the jury that it should view the statutory factors
“merely as examples of some of the factors” that it could con-
sider. However, any clarity gained at the outset of the instruc-
tion was immediately undone by a superceding qualifying
directive. The judge added, “You should pay careful attention
to each of these factors,” an instruction that a reasonable juror
would almost certainly have understood to refer to the statu-
tory factors, and particularly to the unconstitutionally limiting
8344                  BELMONTES v. BROWN
unadorned factor (k). The trial judge then continued, “Any
one of them [i.e., the factors] standing alone may support a
decision that death is not the appropriate punishment in this
case,” implying that only a statutory factor can support a sen-
tence less than death. A juror who followed these instructions
would likely think that he could not consider nonstatutory
mitigating evidence—evidence not going to culpability—such
as testimony tending to show that Belmontes would lead a
constructive life if confined permanently within a structured
environment. Still, the supplementary instructions did not end
the matter.

   [19] Compounding the problems with the original and sup-
plemental instructions were the trial judge’s responses to the
jurors’ questions during the mid-deliberation colloquy. In that
colloquy, the trial judge again directed the jury’s attention to
the literal text of the original unadorned factor (k) instruction,
which strongly implied that the jury could not consider evi-
dence regarding the defendant’s probable future conduct. The
jury had deliberated for several hours before it sent the judge
a note indicating that it was deadlocked. The note read, “What
happens if we cannot reach a verdict?” and “Can the majority
rule on life imprisonment?” In the discussion that followed,
the judge properly ascertained that further deliberations would
probably be fruitful. He then suggested to the jury that it
might be helpful to “go over the instructions again with one
another” as they continued to deliberate. It was at this point
that the jurors began to question the judge with respect to the
aggravating and mitigating factors. Juror Hern asked, “The
statement about the aggravation and mitigation of the circum-
stances, now, that was the listing?” When the court responded
affirmatively, she asked, “Of those certain factors we were to
decide one or the other and then balance the sheet?”

   Juror Hern’s questions reveal that she did not understand
that her duty as a juror was to consider all of Belmontes’ miti-
gating evidence. The most reasonable way to interpret her
first question is as an effort to clarify that the jury should look
                          BELMONTES v. BROWN                             8345
to the statutory factors (a) through (g) [or unadorned (k)], as
read to the jury by the trial judge, to determine what counted
as aggravating and mitigating circumstances. It appears that
by asking, “that was the listing?,” Juror Hern wanted confir-
mation that there was a finite list of factors for the jury to con-
sider and that the list consisted of the statutory factors read to
the jury by the judge. This interpretation is reinforced by
Juror Hern’s next question: “Of those certain factors, we were
to decide one or the other [e.g., whether the evidence is aggra-
vating or mitigating] and then balance the sheet?” The struc-
ture of this question separates the “certain factors” that appear
in “the listing” from other factors that may not be reflected
there. It makes it clear that at least one juror believed that the
jury should consider, weigh, and balance only “those certain
factors” that appeared in “the listing.” Of course, such a belief
would have been incorrect; the jury was required to consider
and evaluate Belmontes’ mitigating evidence relating to his
potential adjustment to life in prison regardless of the fact that
it was not listed in the statute.

  In any event, Juror Hern’s questions signified that she was
not sure how to follow the judge’s instructions.19 “When a
  19
     The Supreme Court has frequently accepted jury questions as evi-
dence that the trial judge’s original instructions were not sufficiently clear.
See, e.g., Shafer, 121 S. Ct. at 1273 (“Shafer’s jury left no doubt about its
failure to gain from defense counsel’s closing argument or the judge’s
instructions any clear understanding of what a life sentence means.”); Sim-
mons v. South Carolina, 512 U.S. 154, 178 (1994) (“[T]hat the jury in this
case felt compelled to ask whether parole was available shows that the
jurors did not know whether or not a life-sentenced defendant will be
released from prison.”); Bollenbach, 326 U.S. at 612 (“The jury’s ques-
tions . . . clearly indicated that the jurors were confused.”). We have done
so as well. E.g., Morris v. Woodford, 273 F.3d 826, 840 (9th Cir. 2001)
(citing fact that jury asked mid-deliberation question as evidence that it
was confused by the original instruction); United States v. Frega, 179 F.3d
793 (9th Cir. 1999) (stating that a reviewing court may infer from the
jury’s questions that it was confused about a controlling legal principle).
Here, as in those cases, Juror Hern’s questions strengthen our conviction
that the original and supplemental instructions did not convey to the jury
8346                      BELMONTES v. BROWN
jury makes explicit its difficulties a trial judge should clear
them away with concrete accuracy.” Bollenbach v. United
States, 326 U.S. 607, 612-13, (1946). In this case, the trial
judge had a duty to cure any ambiguity in his instructions by
providing a clear description of the jury’s obligations. The
judge should have answered Juror Hern’s questions by
instructing the jury that “the listing” of mitigating factors was
not exhaustive and that the jury’s duty was to consider and
weigh all of the mitigating evidence presented by Belmontes
during the sentencing phase. Cf. Boyde, 494 U.S. at 383.
Instead, however, the judge simply affirmed Juror Hern’s
incorrect assumptions with a terse, “That is right.” In so
doing, he not only failed to correct Juror Hern’s erroneous
view, but he likely left all the jurors with the impression that
they could consider mitigation evidence only if it appeared as
one of the “certain factors” in “the listing.” As we have dis-
cussed, Belmontes’ principal mitigating evidence does not fall
in this category.

   The trial judge also instructed the jury that it could not con-
sider a specific subject relating to Belmontes’ ability to adjust
to prison life. Less than thirty seconds after Juror Hern’s
inquiry, Juror Hailstone said: “Could I ask a question? I don’t
know if it is permissible. Is it possible that he could have psy-

that it could consider Belmontes’ nonstatutory mitigating evidence per-
taining to his probable future behavior in prison if incarcerated for life.
   We need not rely on affirmative evidence of jury confusion in order to
reach this conclusion, however. See Kelly v. South Carolina, 122 S. Ct.
726, 733 (2002) (“Time after time appellate courts have found jury
instructions to be insufficiently clear without any record that the jury man-
ifested its confusion.”). “A trial judge’s duty is to give instructions suffi-
cient to explain the law, an obligation that exists independently of any
question from the jurors or any indication of perplexity on their part.” Id.
To hold otherwise would condition our ability to redress serious constitu-
tional violations on such subjective vagaries of fate as whether the jurors
happened to ask a question instead of embarking boldly down the wrong
path.
                          BELMONTES v. BROWN                           8347
chiatric treatment during this time?” The trial judge
responded: “That is something you cannot consider in making
your decision.” He did not explain why the jury could not
consider this issue, and immediately after issuing this
response, he sent the jury off to resume its deliberations. The
instruction not to consider possible future psychiatric treat-
ment was misleading because of the judge’s failure to explain
to the jury why it could not consider the prohibited subject;
to the extent that the jury believed that it could not consider
mitigating evidence relating to how Belmontes might behave
in a controlled prison environment, the instruction as given
would likely have confirmed its misconception.

   [20] Juror Hailstone’s question and the trial judge’s
response are troubling because of the likelihood that the jury
understood them in the context of the larger discussion about
how to consider, weigh, and balance aggravating and mitigat-
ing circumstances.20 In such case, the jury would have
inferred from the trial judge’s response that it could not con-
sider Juror Hailstone’s question, not because there had been
no evidence presented on the subject at trial, but because it
raised a consideration that did not relate to one of the “certain
factors” set forth in “the listing,” or, to put it differently, to
one of the factors bearing on the defendant’s culpability for
the crime. The trial judge’s response thus likely reinforced the
jury’s mistaken notion that Belmontes’ mitigation evidence
   20
      The government insists that the reason for his answer was obvious:
There was no evidence presented on the topic of possible psychiatric treat-
ment at Belmontes’ trial; therefore, the jury could not consider it. The gov-
ernment argues that the jurors would have realized that this was why they
could not consider Juror Hailstone’s question, and so the trial judge’s
response could have had no effect on their deliberations. We reject this
contention. The jurors at Belmontes’ trial were not lawyers; they were not
schooled in the rules of evidence, and they had no reason to know that the
trial judge’s response was based on an evidentiary concern (if, in fact, it
was based on an evidentiary concern rather than on the trial judge’s mis-
understanding of the law). It is far more likely that the jury would have
viewed this question and its answer in the manner that we have described.
8348                  BELMONTES v. BROWN
relating to his probable future good conduct if confined in a
structured prison environment was irrelevant to the sentencing
decision.

   The next question is whether the trial judge’s various
instructions relating to limitations on the evidence that could
be considered had an effect on the jury’s deliberations. We
may not reverse the jury’s penalty determination unless the
instructions actually created “a reasonable probability that the
jury has applied the challenged instruction in a way that pre-
vents the consideration of constitutionally relevant evidence.”
Boyde, 494 U.S. at 380 (emphasis added). The jury’s decision
must stand “if there is only a possibility of such an inhibi-
tion.” Id. (emphasis added).

   [21] We hold that there is a reasonable probability that, as
a result of the court’s instructions, the jury in Belmontes’ case
did not consider his principal mitigating evidence. The trial
judge began by giving a faulty instruction, one that on its face
arguably does not allow consideration of mitigating evidence
pertaining to the defendant’s probable future good behavior in
prison, as opposed to his culpability for the crime. He then
rejected a significant part of the supplemental instruction that
Belmontes proposed in an effort to solve the problem. The
jurors were understandably confused, and they asked ques-
tions of the court in an effort to clarify the scope of their duty.
In the course of that dialogue, the trial judge endorsed Juror
Hern’s view of the instructions, a view that strongly suggested
that the jury could consider, weigh, and balance only “those
certain factors” that appeared in “the listing.” Following that
endorsement, the trial judge advised the jury without further
explanation that, in making its decision, it could not consider
the possibility that Belmontes could receive psychiatric treat-
ment in prison. In sum, every instruction that the jury received
tended to convey the message that the jury could not consider
Belmontes’ mitigating evidence unless it related to his culpa-
bility for the crime. Under these circumstances, there is, at the
least, a reasonable probability that the jury did not consider
                      BELMONTES v. BROWN                    8349
Belmontes’ principal mitigation evidence—the evidence that
provided the factual support for his argument in mitigation:
that he would live a productive life if permanently incarcer-
ated in a structured environment. Because “[t]he Eighth
Amendment requires that the jury be able to consider and give
effect to all relevant mitigating evidence offered by petition-
er,” Boyde, 494 U.S. at 377-78, the unadorned factor (k)
instruction, as applied in Belmontes’ case, was unconstitu-
tional.

   Having concluded that an error of constitutional magnitude
infected the penalty phase of Belmontes’ trial, we turn finally
to the question whether that error was nonetheless harmless.
See Boyde, 494 U.S. at 380 (applying Brecht harmless error
standard). Belmontes cannot obtain a new trial unless the
instructional error had “a substantial and injurious effect” on
the jury’s verdict. Brecht v. Abrahamson, 507 U.S. at 637. We
hold that it did.

   Our cases appear to be divided as to whether the petitioner,
the state, or neither bears the responsibility for showing harm-
less error under the Brecht harmless error standard. Compare
Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997)
(placing burden on petitioner), with Keating v. Hood, 191
F.3d 1053, 1062 (9th Cir. 1999) (as amended) (placing burden
on state), and Thompson v. Borg, 74 F.3d 1571, 1575 (9th Cir.
1996) (rejecting burdens of proof in favor of an independent
determination of whether a trial error had a substantial and
injurious effect). In a recent case, we stated that “[t]he
Supreme Court has made clear that whether a trial error had
a substantial and injurious effect is not to be analyzed in terms
of burdens of proof.” Mancuso v. Olivarez, 282 F.3d 728, 737
n.4 (9th Cir.), as amended, 292 F.3d 939 (2002), citing
O’Neal v. McAninch, 513 U.S. 432, 436 (1995). In that case,
we further stated that the reviewing court has “the responsibil-
ity to determine this legal question ‘without benefit of such
aids as presumptions or allocated burdens of proof that expe-
dite factfinding at the trial.’ ” Id. (quoting O’Neal, 513 U.S.
8350                  BELMONTES v. BROWN
at 437). However, O’Neal also stated that “it is the State that
bears the “risk of doubt.” O’Neal, 513 at 438; Valerio v.
Crawford, 306 F.3d 742, 746 (9th Cir. 2002)(en banc), cert.
denied, 123 S. Ct. 1788 (2003). Also, as we said only
recently, we look to the State to instill in us a “fair assurance”
that there was no effect on the verdict. See Morales v. Wood-
ford, 336 F.3d 1136, 1148 (9th Cir. 2003) (“[T]he state must
provide us with a ‘fair assurance’ that the error was harmless
under Brecht.”); Valerio, 306 F.3d at 762; see also O’Neal,
513 U.S. at 443 (“[T]he State normally bears responsibility
for the error that infected the initial trial.”). Valerio and Mora-
les stand for the proposition that only if the State has per-
suaded us that there was no substantial or injurious effect on
the verdict do we find the error harmless. Certainly, “if one
is left in grave doubt [about the harmfulness of the error], the
conviction cannot stand.” Mancuso, 282 F.3d at 737 n.4
(quoting Kotteakos v. United States, 328 U.S. 750, 765
(1946).

   [22] Here we need not consider the issue of burdens of
proof any further. Regardless of the applicable rule, we are
convinced that the instructional error in this case, which pre-
vented the jury from considering and giving effect to Bel-
montes’ most important mitigation evidence, had a substantial
and injurious effect on the jury’s verdict. At the penalty phase
of this trial the aggravating evidence was not strong. It basi-
cally consisted of the fact that Belmontes was previously
incarcerated in the youth facility for being an accessory after
the fact to voluntary manslaughter, one domestic violence
incident, and two occurrences relating to possession, or possi-
ble possession, of a gun. The prosecutor candidly told the jury
that there was not a lot in the way of aggravating evidence.
He asked the jury to return a death sentence because of the
circumstances of the crime itself. Yet the crime, though
shocking and deplorable, was in essence a robbery gone
wrong. The murder was not pre-planned, nor did it involve
kidnapping, rape, torture, multiple victims, or any of the other
especially heinous elements that usually are present when a
                         BELMONTES v. BROWN                          8351
jury votes for the ultimate penalty. In short, the McConnell
murder was of the kind that generally does not result in a
death penalty.21

   Under these circumstances, there is a reasonable probability
that a properly instructed jury would have spared Belmontes’
life had it believed that he would not pose a future danger if
sentenced to life without parole, and that instead he would
become a model prisoner who could contribute something of
value to society. The state concedes that Belmontes presented
“substantial” evidence in support of this mitigation theme.
Several witnesses, including Belmontes himself, testified that
although he had difficult in acting appropriately in the outside
world, he thrived in the structured, institutional environment
of prison. Belmontes described his experience on the CYA’s
fire crew, during which he rose from last man to number two,
a position of leadership and responsibility, and about his grad-
ually increasing involvement in Christianity during his prior
incarceration. Reverend Barrett spoke about Belmontes’ par-
ticipation in the M-2 Christian sponsorship program, which he
felt was genuine, and testified that in his opinion if granted a
life sentence Belmontes would make positive contributions to
prison life through his involvement with the prison ministries.
One of Belmontes’ most important witnesses was Reverend
Miller, who testified that Belmontes had been good at coun-
seling young inmates not to repeat the mistakes that he had
made and that he “definitely would be used in the prison sys-
tem for this kind of activity” if granted life without parole.

   [23] The importance of this mitigation theme was stressed
during closing arguments. In his allocution, Belmontes took
responsibility for his actions and stated that he did not want
  21
     On this point, Belmontes submitted evidence that, of the thirty defen-
dants who were tried for felony-murder in San Joaquin County between
1977 and 1986, only two, including Belmontes himself, received a death
sentence. Many defendants whose crimes by any measure were substan-
tially more aggravated than Belmontes’ did not receive a death penalty.
8352                  BELMONTES v. BROWN
to use his difficult childhood as an excuse. He asked the jury
to give him the opportunity to rehabilitate himself, set goals,
and make a positive contribution to the welfare of others
while in prison. His counsel repeated this theme in his emo-
tional closing argument, in which he asked the jury to spare
Belmontes’ life on the ground that he would make positive
contributions if allowed to live out his natural life in prison.

   Given the weakness of the aggravating evidence and the
substantial nature of the mitigating evidence, we conclude
that had the jury been properly instructed, and had it under-
stood that it could consider and give effect to the evidence
regarding Belmontes’ ability to function effectively in a
prison setting, there is a reasonable probability that it would
have returned a different verdict. Accordingly, Belmontes is
entitled to relief on the sentencing phase.

                       CONCLUSION

   Although we are disturbed by the prosecution’s failure to
disclose impeaching evidence and to correct false testimony
on the part of its principal witness, as well as by defense
counsel’s failure to disclose the extent of his prior representa-
tion of Vasquez and to pursue a full investigation of
Vasquez’s background, and although we are at least as dis-
turbed by the results of the study that showed the discrimina-
tory racial effect of the County’s capital charging policies, we
cannot conclude, for the reasons we have explained, that any
of these occurrences served to violate Belmontes’ constitu-
tional rights. Thus, we are compelled to deny relief with
respect to the guilt phase, including the special circumstances
finding. However, because the trial judge failed to instruct the
jury that it was required to consider Belmontes’ principal mit-
igation evidence, and because we conclude that this failure
had a substantial and injurious effect upon the verdict, we
reverse with respect to the sentencing phase. We remand to
the district court with instructions to issue an appropriate writ
vacating Belmontes’ death sentence.
                      BELMONTES v. BROWN                    8353
  AFFIRMED in part, REVERSED in part, and
REMANDED for issuance of the writ in accordance with this
opinion.



O’SCANNLAIN, Circuit Judge, concurring in part and dis-
senting in part:

   The court properly affirms Judge Levi’s determination that
there was no constitutional error in Belmontes’s conviction
for first-degree murder with special circumstances in state
court. I am pleased to concur in its conclusions as to the guilt
phase. Regrettably, as to the penalty phase, the majority
strains mightily—and unpersuasively—to perceive constitu-
tional error in the comprehensive and perfectly proper jury
instructions given by the state trial judge. Because there sim-
ply is no such error, and the Supreme Court has expressly told
us so on two separate occasions, I must respectfully dissent
from the court’s reversal of the district court’s denial of the
petition for the writ with respect to the penalty phase.

   Over a decade ago, the Supreme Court in Boyde v. Califor-
nia, 494 U.S. 370 (1990), interpreted the same jury instruction
at issue today, “factor (k),” and concluded that it was constitu-
tionally sound. The Court held that there was no “reasonable
likelihood that the jury . . . applied [factor (k)] in a way that
prevent[ed] the consideration of constitutionally relevant evi-
dence.” Id. at 380. Factor (k)’s constitutionality was recently
reaffirmed in Brown v. Payton, 544 U.S. ___, 125 S. Ct. 1432,
1442 (2005), where the Court again refused to invalidate a
death sentence imposed pursuant to instructions that included
factor (k). The Court reached that result even though the pros-
ecutor had explicitly argued to the sentencing jury that factor
(k) prohibited them from considering the defendant’s mitigat-
ing evidence. Id. at 1440.

  The majority nonetheless manages to distinguish Boyde and
Payton, and reaches the extraordinary conclusion that there
8354                  BELMONTES v. BROWN
was a reasonable likelihood that the jury refused to consider
mitigating evidence that both the prosecution and the defense
acknowledged was properly before it. Because the jurors were
not constitutionally barred from making a death penalty deter-
mination in this case, I would affirm.

                                I

   At the close of the penalty phase, the state trial court judge
began instructing the jury on aggravating and mitigating cir-
cumstances as follows: “In determining which penalty is to be
imposed on the defendant you shall consider all of the evi-
dence which has been received during any part of the trial of
this case, except as you may be hereafter instructed.” The
court then read an enumerated list of seven factors, exhaustive
with respect to aggravating circumstances, but only examples
with respect to mitigating circumstances. The last of these
factors, factor (k), instructs the jury to consider, “[a]ny other
circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime.” The majority,
by misconstruing both Supreme Court precedent and the evi-
dence in this case, concludes that the factor (k) instruction
failed to provide an outlet for the jury to consider some of
Belmontes’s penalty phase evidence.

                               A

   The majority’s holding is based on the false premise that
factor (k) limits the jury’s consideration only to circumstances
that might excuse the crime. See supra, at 8341-42. But the
Supreme Court has already explicitly rejected this proposi-
tion. In Boyde, the Court held that factor (k) did not “limit the
jury’s consideration to ‘any other circumstances of the crime
which extenuates the gravity of the crime.’ [It directed the
jury] to consider any other circumstance that might excuse
the crime, which certainly includes a defendant’s background
and character.” 494 U.S. at 382 (emphases in original); see
also id. at 381 (holding that there was “no[ ] . . . reasonable
                      BELMONTES v. BROWN                    8355
likelihood that Boyde’s jurors interpreted the trial court’s
instructions to prevent consideration of mitigating evidence of
background and character”). Boyde makes it perfectly clear
that testimony relating to a defendant’s pre-crime background
and character is within the jury’s purview under factor (k).

   Belmontes’s penalty phase presentation was entirely com-
posed of such evidence. The witnesses who testified on his
behalf spoke to his religious convictions and his behavior
while a ward of the California Youth Authority (“CYA”)—all
of which goes to his background and character before he mur-
dered Steacy. While the majority attempts to paint such evi-
dence as showing that he would be a model inmate if
sentenced to life in prison, the testimony as actually presented
deals exclusively with his character prior to the crime. In fact,
not one witness who testified during the penalty phase testi-
fied to Belmontes’s behavior after the murder.

   Belmontes’s religious conversion and ability to conform to
prison are exactly the types of evidence that the Supreme
Court held fit within the plain language of factor (k). See
Boyde, 494 U.S. at 382 (holding that Boyde’s strength of
character in the face of adversity was considered evidence
that “excused” the gravity of the crime under factor (k)).
Accordingly, under Boyde, the jury was able to consider and
to give effect to all of Belmontes’s mitigating evidence. Noth-
ing more was constitutionally required. Johnson v. Texas, 509
U.S. 350, 372 (1993) (holding that “a jury [need not] be able
to give effect to mitigating evidence in every conceivable
manner in which the evidence might be relevant”).

   Even so, the Supreme Court has held that inquiry into
future dangerousness of a defendant “is not independent of an
assessment of personal culpability.” Id. at 369. In Johnson,
the Court held that an instruction that asked jurors to consider
the future dangerousness of a defendant provided ample
opportunity for the jury to consider the defendant’s youth as
mitigating evidence. Id. at 369-70. Even though the statutory
8356                 BELMONTES v. BROWN
factor did not explicitly provide that the jury could consider
the defendant’s youth as a mitigating factor for culpability of
the crime, the Court concluded that there was no reasonable
likelihood that the jury would have thought it was foreclosed
from considering it. Id. at 370.

   Likewise, because factor (k) allows the jury to consider
Belmontes’s character and background, there is no reason to
think that the jury would have thought it was foreclosed from
using such information to consider his future potential if sen-
tenced to life in prison. As the Supreme Court has noted,
“Consideration of a defendant’s past conduct as indicative of
his probable future behavior is an inevitable and not undesir-
able element of criminal sentencing.” Skipper v. South Caro-
lina, 476 U.S. 1, 5 (1986) (emphasis added); see also Boyde,
494 U.S. at 382 (“Petitioner had an opportunity through factor
(k) to argue that his background and character ‘extenuated’ or
‘excused’ the seriousness of the crime, and we see no reason
to believe that reasonable jurors would resist the view, ‘long
held by society,’ that in an appropriate case such evidence
would counsel imposition of a sentence less than death.”); cf.
Johnson, 509 U.S. at 370.

   Thus, while the majority scours the cold record decades
after the trial to find an ambiguity in the sentencing instruc-
tion, it is highly doubtful that the jury itself would have so
found. “Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that
lawyers might.” Boyde, 494 U.S. at 380-81. I see no reason
why the jury would have resisted the inevitable consideration
of Belmontes’s future potential in light of the character evi-
dence presented.

                              B

   The majority also ignores the Supreme Court’s advice that
“[d]ifferences . . . in interpretation of instructions may be
thrashed out in the deliberative process, with commonsense
                      BELMONTES v. BROWN                      8357
understanding of the instructions in light of all that has taken
place at the trial likely to prevail over technical hairsplitting.”
Boyde, 494 U.S. at 381. That factor (k) permits the consider-
ation of Belmontes’s character evidence is amplified when the
penalty phase is viewed as a whole, particularly in light of the
arguments made by counsel. See Payton, 125 S. Ct. at 1440
(“Boyde . . . mandates that the whole context of the trial be
considered.”).

   In Payton, the prosecutor explicitly argued during the pen-
alty phase that factor (k) did not permit the jury to consider
evidence of the defendant’s post-crime religious conversion.
Id. Notwithstanding the trial judge’s failure to correct this
misstatement of law, the Supreme Court concluded that
habeas relief was not warranted because it was improbable
that the sentencing jury would have disregarded the two days
of mitigating evidence presented by the defense. Id. In con-
trast, during the penalty phase of Belmontes’s trial, both the
prosecutor and the defense attorney urged the jury to consider
the mitigating evidence, and the trial court likewise instructed
the jury to consider all the evidence unless directed otherwise.
See Boyde, 494 U.S. at 383 (relying in part on the fact that
Boyde’s jury was instructed that it “shall consider all of the
evidence which has been received during any part of the case”
(emphasis in original)). The majority nevertheless concludes
that the jury likely misunderstood its sentencing task after
repeatedly receiving the same unambiguous directions from
the prosecutor, the defense attorney, and the court.

  The jury heard, without objection, evidence regarding Bel-
montes’s behavior in prison before the murder: how he had
found God and how he could serve as an example to other
inmates. In its closing argument, the prosecution stated, “I
suspect you will be told . . . that the defendant’s religious
experience is within that catchall [factor (k)] that relates to the
defendant at the time he committed the crime, extenuates the
gravity of the crime. I’m not really sure it fits in there. I’m not
sure it really fits in any of them.” Even so, the prosecutor
8358                       BELMONTES v. BROWN
noted, “But I think it [Belmontes’s religious experience]
appears to be a proper subject of consideration.”

  Later the prosecutor expounded on why the jury should
consider Belmontes’s evidence:

       I suppose you can say it would be appropriate [to
       consider such evidence] because—in this fashion:
       The defendant may be of value to the community
       later. You recall the people talking about how he
       would have the opportunity to work with other pris-
       oners in prison. And I think that value to the commu-
       nity is something that you have to weigh in. There’s
       something to that.1

   Belmontes’s pleas were similar. Belmontes asked for life in
prison because in prison “there is an opportunity to achieve
goals and try to better yourself.” His counsel continued the
argument, asking the jury to spare Belmontes’s life because
he would make a positive contribution if his life were spared:
“[W]hat I am suggesting to you and what I hope the evidence
  1
   The prosecutor’s admonition to the jury that it must consider Bel-
montes’s mitigating evidence contrasts sharply with the statements of the
Payton prosecutor, who forcefully argued that factor (k) required the jury
to disregard all of the defendant’s mitigating evidence:
         “[Factor] K” says any other circumstance which extenuates or
      lessens the gravity of the crime. What does that mean? That to
      me means some fact— okay?—some factors at the time of the
      offense that somehow operates to reduce the gravity for what the
      defendant did. It doesn’t refer to anything after the fact or later.
      That’s particularly important here because the only defense evi-
      dence you have heard has been about this new born Christianity.
        ....
        What I am getting at, you have not heard during the past few
      days any legal evidence mitigation. What you’ve heard is just
      some jailhouse evidence to win your sympathy, and that’s all.
      You have not heard any evidence of mitigation in this trial.
Payton, 125 S. Ct. at 1446 (Souter, J., dissenting).
                     BELMONTES v. BROWN                      8359
suggests to you is Fernando Belmontes cannot make it on the
outside. I think it is pretty clear from the development he
undertook, the kind of experiences he had with the Haros as
compared with his being placed out on his own.” He added:

    The people who came in here told you about him.
    They told you not only what they know of him, but
    they gave you, as best they could, under the very dif-
    ficult circumstances of somebody looking at the rest
    of their life in prison, a game plan, something he can
    do with his life, something he’s been able to do.
    We’re just suggesting the tip of the iceberg because
    who knows in 20, 30, 40, 50 years what sorts of
    things he can do, as he fits into the system, as he
    learns to set his goals, to contribute something in
    whatever way he can.

   At no time did the prosecutor object to the defense’s char-
acterization, nor did the trial judge indicate that the parties’
statements of law were not correct or that the jury could not
consider any of the evidence. Nevertheless, the majority con-
cludes that the jury thought that the witnesses wasted their
time by testifying, and that the prosecutor, Belmontes, and
Belmontes’s lawyer were not smart enough to realize they
were all mistaken. See Payton, 125 S. Ct. at 1440 (“for the
jury to have believed it could not consider Payton’s mitigating
evidence, it would have had to believe that the penalty phase
served virtually no purpose at all”). In its world, the majority
envisions a jury playing a game of “gotcha” with the lawyers,
whereby the jury ignores everyone and applies its own
instructions. Such a conclusion is pure fantasy and cannot jus-
tify overturning the jury’s choice here. See Buchanan v. Ange-
lone, 522 U.S. 269, 278-79 (1998) (“The parties in effect
agreed that there was substantial mitigating evidence and that
the jury had to weigh that evidence against petitioner’s con-
duct in making a discretionary decision on the appropriate
penalty. In this context, there is not a reasonable likelihood
that the jurors in petitioner’s case understood the challenged
8360                  BELMONTES v. BROWN
instructions to preclude consideration of relevant mitigating
evidence offered by petitioner.” (emphasis in original; internal
quotation marks omitted)).

                               II

   Even assuming, arguendo, that there was a reasonable like-
lihood that the jury could have interpreted factor (k) to pro-
hibit consideration of Belmontes’s character witnesses, the
instructions were still constitutionally sufficient. To arrive at
its result, the majority downplays the trial court’s initial
instruction, in which the jury was told, “In determining which
penalty is to be imposed on the defendant you shall consider
all of the evidence which has been received during any part
of the trial of this case, except as you may be hereafter
instructed.” (emphasis added). Such a jury instruction alone is
constitutionally sufficient to convey to the jury its duty to
consider all mitigating evidence. See Buchanan, 522 U.S. at
277 (holding that there was no likelihood of confusion when
the jury had to indicate on the statutory verdict form that it
had “considered the evidence in mitigation of the offense”
and the trial court provided the following mitigation instruc-
tion: “[I]f you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment of
the defendant at life imprisonment”); Johnson, 509 U.S. at
368 (holding that a jury instruction that stated that the jury
could consider all the mitigating evidence presented during
both the guilt and penalty stage was sufficient to inform the
jury that it could consider evidence of defendant’s youth);
Blystone v. Pennsylvania, 494 U.S. 299, 307-08 (1990) (“In
petitioner’s case the jury was specifically instructed to con-
sider, as mitigating evidence, any ‘matter concerning the char-
acter or record of the defendant, or the circumstances of his
offense.’ This was sufficient to satisfy the dictates of the
Eighth Amendment.” (citation omitted)); cf. Tuilaepa v. Cali-
fornia, 512 U.S. 967, 979 (1994) (“A capital sentencer need
not be instructed how to weigh any particular fact in the capi-
tal sentencing decision.”).
                       BELMONTES v. BROWN                      8361
   The trial court’s duty is simply to convey to the jury that
all mitigating evidence must be considered and may be given
effect when it deliberates on a defendant’s capital sentence.
Buchanan, 522 U.S. at 276. The absence of any specific
instruction to the jury to consider the defendant’s ability to
adjust to an institutional setting is utterly irrelevant. Id. at 277
(“By directing the jury to base its decision on ‘all the evi-
dence,’ the instruction afforded jurors an opportunity to con-
sider mitigating evidence.”).

   Even if the jury were confused by the subsequent enumera-
tion of individual factors—perhaps thinking that its consider-
ation of mitigating evidence was limited to such factors—the
confusion would have been short lived. After reading the enu-
merated factors, the court instructed, “[T]he mitigating cir-
cumstances which I have read for your consideration are
given to you merely as examples of some of the factors that
you may take into account as reasons for deciding not to
impose a death penalty or a death sentence upon Mr. Bel-
montes.” The majority, however, fixates, not on the clear lan-
guage of such directive, but on the two sentences that directly
follow: “You should pay careful attention to each of these fac-
tors. Any one of them standing alone may support a decision
that death is not the appropriate punishment in this case.”
According to the majority, these sentences somehow obfus-
cate the clarity of the court’s instructions.

   We must look at these instructions in their entirety, how-
ever. See Boyde, 494 U.S. at 378 (“we accept at the outset the
well-established proposition that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed
in the context of the overall charge” (internal quotation marks
omitted)). The judge instructed:

       I have previously read you a list of aggravating
    circumstances which the law permits you to consider
    if you find that any of them is established by the evi-
    dence. These are the only aggravating circumstances
8362                  BELMONTES v. BROWN
    that you may consider. You are not allowed to take
    account of any other facts or circumstances as the
    basis for deciding that the death penalty would be an
    appropriate punishment in this case.

       However, the mitigating circumstances which I
    have read for your consideration are given to you
    merely as examples of some of the factors that you
    may take into account as reasons for deciding not to
    impose a death penalty or a death sentence upon Mr.
    Belmontes. You should pay careful attention to each
    of these factors. Any one of them standing alone
    may support a decision that death is not the appropri-
    ate punishment in this case.

   When these instructions are read in context, there is little
doubt that the court conveyed the message that the enumer-
ated factors were not the exclusive mitigating circumstances
that the jury could consider. The court first instructed the jury
how to apply the aggravating circumstances, specifically that
it could not consider any non-enumerated factors. The court
then contrasted consideration of aggravating factors with miti-
gating factors, which it noted were merely “examples of some
of the factors” that the jury could consider. The fact that the
court further instructed that the jury should consider each of
the mitigating factors (recall that “factors” refers to all miti-
gating circumstances and not, as the majority implies, to the
enumerated circumstances read by the judge), as any one
alone might support life in prison, was unlikely to confuse the
jury, when viewed in totality.

   The trial court’s additional instruction reinforced the con-
stitutional requirement of conveying to the jury that it is “not
. . . precluded from considering, and may not refuse to con-
sider, any constitutionally relevant mitigating evidence.”
Buchanan, 522 U.S. at 276. Instead of confusing the jury, the
trial court’s instructions made it clear that all evidence that
was presented must be considered. Moreover, the instruction
                     BELMONTES v. BROWN                    8363
that the majority concludes was “critical,” supra, at 8343,
substantively adds nothing. Rather than speculating that the
jury was too dim to understand what it was told by the court,
we must presume that the jury understood the instructions
taken as a whole. Weeks v. Angelone, 528 U.S. 225, 234
(2000).

                              III

   According to the majority, however, it is the series of ques-
tions between individual jurors and the judge that proves the
jury’s confusion. After the jury deliberated for several hours,
it sent the judge a note asking, “What happens if we cannot
reach a verdict?” and “Can the majority rule on life imprison-
ment?” The judge refused to tell the jury what would happen
if they could not agree, but told them that it would discharge
them if they could not reach an agreement. He then asked,
“Do you think if I allow you to continue to discuss the matter
and for you to go over the instructions again with one another,
that the possibility of making a decision is there?”

   At this time, individual jurors asked the judge some ques-
tions.

    JUROR HERN: The statement about the aggravation
    and mitigation of the circumstances, now, that was
    the listing?

    THE COURT: That was the listing, yes, ma’am.

    JUROR HERN: Of those certain factors we were to
    decide one or the other and then balance the sheet?

    THE COURT: That is right. It is a balancing pro-
    cess.

    ....
8364                  BELMONTES v. BROWN
    JUROR HAILSTONE: Could I ask a question? I
    don’t know if it is permissible. Is it possible that he
    could have psychiatric treatment during this time?

    THE COURT: That is something you cannot con-
    sider in making your decision.

   In the majority’s view, Juror Hern’s use of the term “list-
ing,” and the judge’s failure to note that the “listing” was not
exclusive as to mitigating circumstances, shows that individ-
ual jurors were confused by the instruction. I respectfully dis-
agree. The jury did not submit a formal question to the judge
to indicate that it was confused as to its duties or the instruc-
tions, and no informal follow-up questions were asked by any
jurors. And while the answers the judge gave the juror might
have been cryptic, they were not incorrect. Cf. Bollenbach v.
United States, 326 U.S. 607, 613 (1946).

   Most importantly, just before the judge answered these
informal questions, he asked the jury “to go over the instruc-
tions again.” Under existing Supreme Court authority, any
confusion with regard to its responsibilities would have been
cleared up with another such review. See Weeks, 528 U.S. at
233-34 (holding that no likelihood of confusion existed when
the trial judge referred back to his original instruction when
the jury asked a question regarding the instructions them-
selves). And if, after reviewing the instructions once again,
jurors were still confused about the evidence they could con-
sider, they likely would have asked for a formal clarification.
See id. at 234 (noting that the jury did not submit a follow-up
question after the judge referred it back to the original instruc-
tions). While it is possible that after reviewing the instructions
again, confusion might have arisen, it was certainly not rea-
sonably likely. See Boyde, 494 U.S. at 380.

   Incredulously, the majority also takes issue with Juror Hail-
stone’s question regarding whether Belmontes could receive
psychiatric treatment while in prison. The court properly
                       BELMONTES v. BROWN                      8365
instructed the jury that it could not consider such potentially
mitigating evidence. And for good reason: no such evidence
was ever introduced at any stage of the trial. Indeed, the jury
was prohibited from such considerations. See Hughes v. Borg,
898 F.2d 695, 700 (9th Cir. 1990) (“State defendants have a
federal constitutional right to an impartial jury and jurors have
a correlative duty to consider only the evidence that is pre-
sented in open court.”); see also TXO Prod. Corp. v. Alliance
Res. Corp., 509 U.S. 443, 468 (1993) (Kennedy, J., concur-
ring) (“Unlike a legislature, whose judgments may be predi-
cated on educated guesses and need not necessarily be
grounded in facts adduced in a hearing, a jury is bound to
consider only the evidence presented to it in arriving at a
judgment.” (citations omitted)).

   There was absolutely nothing wrong with the trial judge’s
instruction that the jury could not consider evidence that was
not presented; indeed, it would have been unconstitutional for
him to have said otherwise. Yet, the majority ignores such
niceties. If the jury were truly confused by the judge’s answer,
surely it would have asked a follow-up question of some sort.
Nonetheless, without any basis in the record, the majority
concludes that the judge’s perfectly proper statement was
likely to confuse.

                                 IV

  The majority concludes that the jurors listened to all the
evidence regarding Belmontes’s character, listened to the
prosecution and the defense tell it to consider such evidence,
and listened to the trial court tell it that it must consider all the
evidence presented; yet the majority holds that the jury was
confused about whether it could consider the evidence pres-
ented. Such conclusion, with all due respect, is simply beyond
belief; such holding turns the entire proceeding “into a virtual
charade.” Boyde, 494 U.S. at 383 (internal quotation marks
omitted).
8366                 BELMONTES v. BROWN
  The jury, in reality, returned a death sentence for Bel-
montes, not because of a confusing jury instruction, but
because he murdered nineteen-year-old Steacy McConnell in
cold blood, striking her 15-20 times in the head with an iron
dumbbell he had brought with him to her house in case of
such an encounter; I sincerely doubt the family and friends of
Steacy would share the majority’s callous view that her mur-
der was not “especially heinous.”

   Not surprisingly, the prosecution was able to portray Bel-
montes as a violent young man by focusing on his past behav-
ior: his armed theft of a loaded handgun, his tendency to carry
such a weapon, his fight with another ward while in the CYA
after pleading guilty to being an accessory after the fact to
voluntary manslaughter, and his battery of his pregnant girl-
friend, which caused her to drop their two-year-old daughter.
It is such violent, antisocial behavior, not an ambiguous jury
instruction, that placed him in the situation he now finds him-
self.

   Perhaps the jury simply did not believe that a convicted
murderer might be a particularly good role model to other
inmates, despite Reverend Miller’s testimony that Belmontes
would be good at counseling other inmates not to repeat his
“mistakes.” After all, Steacy’s murder was hardly a “mis-
take.” Perhaps Belmontes’s jailhouse conversion to Christian-
ity, which mysteriously lapsed as soon as he returned to
society, and his ascent to the top of CYA’s fire crew, could
rightly have been seen as manipulative ploys to gain early
release for his previous crimes. Cf. Payton, 125 S. Ct. at 1442
(“Testimony about a religious conversion spanning one year
and nine months may well have been considered altogether
insignificant in light of the brutality of the crimes, the prior
offenses, and a proclivity for committing violent acts against
women.”).

  By concluding that the trial court’s jury instructions were
unconstitutional, the majority ignores the “strong policy
                         BELMONTES v. BROWN                          8367
against retrials years after the first trial where the claimed
error amounts to no more than speculation.” Boyde, 494 U.S.
at 380. There is nothing in the record which would lead me
to believe that there was a reasonable probability that the jury
was confused about its sentencing duties; therefore I would
affirm the denial of the petition for the writ as to the penalty
phase. I must respectfully dissent from the majority’s refusal
to do so.2




  2
    Belmontes also contends that he was deprived of constitutionally effec-
tive counsel during the penalty stage of his trial. His claim is without
merit. See Strickland v. Washington, 466 U.S. 668, 694 (1984); Gerlaugh
v. Stewart, 129 F.3d 1027, 1035-36 (9th Cir. 1997).
